UNIVERSITY 
 
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 a^d,^m..^.,, CASES 
 
 ON 
 
 CIVIL PROCEDURE 
 
 SELECTED AND ANNOTATED 
 
 By 
 WILLIAM H. LOYD 
 
 Of the Philadelphia Bar 
 Assistant Professor of Law in the University of Pennsylvania 
 
 INDIANAPOLIS 
 
 THE BOBBS-MERRILL COMPANY 
 
 PUBLISHERS
 
 
 Copyright 1916 
 
 BY 
 
 The Bobbs-AIerrill Company
 
 i^' 
 
 
 INTRODUCTORY NOTE 
 
 The purpose of tliis volume is to point out through selected 
 cases, the principal problems of civil procedure, to explain how they 
 were approached at common law and to indicate how they are com- 
 monly dealt with in modern courts. Such a course it is believed will 
 not only prepare the student for the more intelligent study of the 
 procedure of the state in which he expects to practice, but will also 
 assist him in those branches of substantive law that are rooted in 
 procedure. It is hoped, too, that in schools where the local practice 
 alone is taught and in the office, preceptor and student may find here 
 material useful for comparative study. Indeed, as the practice of 
 the law tends in this country to extend beyond state boundaries, it 
 becomes increasingly dangerous to restrict one's information to the 
 methods of a single locality. While one can hardly expect to become 
 expert in the daily routine of courts other than those in which his 
 life's work is centered, a broad comprehensive view of the more im- 
 portant points upon which a diversity of practice may be anticipated 
 is an equipment not to be despised. 
 
 There is another reason why the ground-work of procedure 
 should be studied more attentively than in the past. Procedure is, 
 today, perhaps the weakest spot in our system of jurisprudence. De- 
 veloped to meet tlie needs of a state of society that has long since 
 ceased to exist, amended often by careless legislation, it is a forlorn 
 patchwork that any one can attack and few defend. Change is inevit- 
 able and it is most important that reform when it comes should be 
 intelligently directed ; that the problems of comparatively easy solu- 
 tion should not be confused with those that are fundamentally diffi- 
 cult; and that the subject be treated as a whole, with a view to the 
 development of an orderly, practical system, as simple as is com- 
 patible with the complexity of modern civilization. In approaching 
 the subject no theoretical notions, no doctrinal discussion can equal 
 the study of cases in which the very points have arisen. In fact, 
 there is no better test for determining whether any doubt or diffi- 
 culty is real or purely imaginary than the crude experience of life 
 itself. 
 
 The first part of the book deals with parties to actions, and the 
 forms of and proceedings in actions, leading up to pleading ; but with 
 the exception of a few cases on the plaintiff's statement of claim and 
 brief mention of the motions based on the pleadings after verdict, 
 pleading has been omitted. This is not because it is not an important 
 part — perhaps the most important part — of procedure, but because
 
 iv TNTROnUCTORY NOTE 
 
 excellent case books on that subject arc available and it was thought 
 best that the instructor be Jijivcn the oi)i)ortunity to ciioosc between 
 common law and code pleading. The cases leading up to that subject 
 are adapted to either course. The remainder of the book deals with 
 trials, judgments, executions, and appeals, topics greatly neglected 
 in law courses although it is difficult to see why, since they include 
 many stimulating ]>roblcms. Perhaps the size of the subject is a de- 
 terrent. In fact, in spite of a real effort at condensation it is not prob- 
 able that all the cases printed can be read in course in the number of 
 hours that can be spared in an already crowded curriculum. The 
 instructor, therefore, should select those best suited to his own needs, 
 using the others for occasional reference. Even so, many points 
 worthy of full discussion have been forced into the notes. 
 
 When this course was first offered in the Law School of the Uni- 
 versity of Pennsylvania, in the fall of 1910, it was in the nature of an 
 experiment, '^hat it has commended itself to tlie Faculty who have 
 observed the „^esults, would indicate that a real gap in the curriculum 
 has been filled.
 
 TABLE OF CONTENTS 
 
 CHAPTER I 
 The Court I 
 
 CHAPTER II 
 
 Parties 35 
 
 Section I — In General 35 
 
 II — Remedial Interest 47 
 
 III — Joinder o£ Parties 57 
 
 (a) Plaintiffs 57 
 
 (b) Defendants 8o 
 
 IV— Personal Disability 104 
 
 (a) Infants 104 
 
 (b) Married Women m 
 
 (c) Insane Persons 124 
 
 (d) Aliens I33 
 
 CHAPTER III 
 
 Actions 143 
 
 Section I — Actions I43 
 
 (a) Ejectment 146 
 
 (b) Forcible Entry and Detainer 164 
 
 (c) Dower 170 
 
 (d) Waste I7S 
 
 (e) Account I79 
 
 (f) Covenant 186 
 
 (g) Debt 189 
 
 (h) Assumpsit I97 
 
 (i) Trespass 213 
 
 ( j ) Case 221 
 
 (k) Detinue 225 
 
 (1) Trover 234 
 
 (m) Replevin 238 
 
 II — Abolition and Consolidation of Forms of Actions 243 
 
 III— Public Civil Actions 253 
 
 (a) Quo Warranto 253 
 
 (b) Mandamus 259 
 
 (c) Prohibition 266 
 
 IV — Venue of Actions 269 
 
 V — Commencement of Actions 281 
 
 (a) Process 281 
 
 (b) Appearance 301 
 
 (c) Statement of Plaintiff's Claim 309 
 
 CHAPTER IV 
 
 Trial 33i 
 
 Section I — Modes of Trial 33i 
 
 II— The Jur>' 342 
 
 (a) Jury Process 342 
 
 (b) Challenges 345
 
 Vi TABLE OF CONTENTS 
 
 IIT — Process for Witnesses 370 
 
 IV— Riclit to Open and Close 384 
 
 V — Demurrer to Evidence 388 
 
 VI— Xonsiiit 393 
 
 VII— Direction of Verdict 410 
 
 VIII — Arguments of Counsel 4^9 
 
 IX — Charge of the Court 426 
 
 X — Custody and Conduct of Jury 438 
 
 XI— Verdict 458 
 
 XII— Motions After Verdict 470 
 
 (a) New Trial 472 
 
 (b) Judgment non Obstante Veredicto 486 
 
 (c) Arrest of Judgment 488 
 
 CHAPTER V 
 
 Judgment 495 
 
 Section I — Rendition and Entry 495 
 
 II — Judgment by Confession 509 
 
 III— Judgment by Default 522 
 
 IV — Amendment of Judgments 531 
 
 V — Opening and Vacating Judgments 540 
 
 VI— Collateral Attack 54^ 
 
 (a) Personal Actions 546 
 
 (b) Proceedings in Rem 563 
 
 (c) Probate and Administration 572 
 
 VII— Res Judicata 577 
 
 (a) Merger 577 
 
 (b) Estoppel 594 
 
 VIII — Lien of Judgments 621 
 
 IX — Actions on Judgments 638 
 
 CHAPTER VI 
 
 Execution 647 
 
 Section I — Issuing of the Writ 647 
 
 II — Property and Interests Subject to Execution 658 
 
 III — Lien of Execution 694 
 
 IV— The Levy 704 
 
 V — Exemptions 718 
 
 VI— Claims by Strangers to the Writ 728 
 
 VII— The Sale and Return 736 
 
 VIII— Title of the Purchaser 760 
 
 IX— Audita Querela 773 
 
 X — Satisfaction of Executions 776 
 
 XI — Supplementary' Proceedings 781 
 
 XII — Execution Against the Person 788 
 
 XIII — Executions to Recover Specific Property 802 
 
 (a) Personalty 803 
 
 (b) Realty 809 
 
 CHAPTER VII 
 
 Appeal and Error 817 
 
 Section I — Nature of the Remedy 817 
 
 II— Parties 828 
 
 III — Supersedeas 840 
 
 IV — Exceptions and Record 850 
 
 V — Assignments of Error 863 
 
 VI — Briefs and Argument 871 
 
 VII— Review by the Court 877 
 
 VIII — Judgment 907 
 
 IX— Remittitur 933 
 
 Appendix 937
 
 TABLE OF CASES REPORTED 
 
 A. B. Farquhar Co., Ltd. v. DeHaven, 70 W. Va. 738 510 
 
 Adams v. Hemmenway, i Mass. 145 221 
 
 ■^Aexander v. Jameson, 5 Bin. (Pa.) 238 443 
 
 Ames V. Hoy, 12 Cal. 11 640 
 
 Anonymous, Y. B. 4 Edw. II No. 74 455 
 
 Anonymous, 6 Cow. (N. Y.) 390 542 
 
 Anonymous, Lib. A. 38 Edw. Ill 21 546 
 
 Anonymous, Y. B. 21 Edw. Ill, 9 pi. 25 822 
 
 Ashby V. Ashby, 39 La. Ann. 105 35 
 
 Atkinson v. Allen, 12 Vt. 619 558 
 
 Atkinson v. People's Nat. Bank, 85 Maine 368 860 
 
 Bangor Bank v. Treat, 6 Maine 207 87 
 
 Bank &c. Kentucky v. Ashley, 2 Pet. (U. S.) 327 907 
 
 Bamier v. Barnier, 23 Ont. Rep. 280 65 
 
 Barrus v. Phaneuf, 166 Mass. 123 375 
 
 Bayer v. Doscher, 139 App. Div. (N. Y.) 324 663 
 
 Bell V. Germain, 12 Cal. App. 375 871 
 
 Bell V. Otts, loi Ala. 186 499 
 
 Bigham v. Dover, 86 Ark. 323 769 
 
 Birch V. Philips, 6 Term Rep. 597 330 
 
 Bishop of L. V. Earl of K., 2 Brooke's Abr. 309, pi. 19 438 
 
 Black V. Kirgan, 15 N. J. L. 45 828 
 
 Blessing v. AIcLinden, 81 N. J. L. 379 83 
 
 Boone v. Holder, 87 Ark. 461 424 
 
 Boston & M. Railroad v. State, 75 N. H. 513 378 
 
 Boulter v. Ford, Siderfin 76 524 
 
 Bozson V. Altrincham &c. Council, L. R. (1903) i K. B. 547 823 
 
 Brady v. Brady, 161 N. Car. 324 272 
 
 Bragg V. Wetzel, 5 Blackf. (Ind.) 95 82 
 
 Brannenburg v. Indianapolis P. & C. R. Co., 13 Ind. 103 580 
 
 ^Bronson v. Graham, 2 Yeates (Pa.) 166 446 
 
 Bronson v. Schulten, 104 U. S. 410 531 
 
 Brooks V. Scott, 2 Munf. (Va.) 344 197 
 
 Browder v. Phinney, 30 Wash. 74 243 
 
 Brown v. First Nat. Bank, 132 Fed. 450 584 
 
 Bindbental v. St. Ry. Co., 43 Mo. App. 463 890 
 
 Bull V. Mathews, 20 R. I. 100 320 
 
 Bunn V. Hoyt, 3 Johns. (N. Y.) 255 458 
 
 Buntin v. Danville, 93 Va. 200 456 
 
 Burton v. Kershaw, 81 L. T. Rep. 531 476 
 
 VButcher v. Metts, i Miles (Pa.) 233 493 
 
 Butler V. Frontier Tel. Co., 186 N. Y. 486 159 
 
 Calvart v. Horsfall, 4 Esp. 167 809 
 
 Candee v. Lord, 2 N. Y. 269 560 
 
 Caperton v. Schmidt, 26 Cal. 479 153 
 
 Cassidy v. Leitch, 2 Abb. N. Cas. (N. Y.) 315 287 
 
 ^ Cayuga Bldg. & L. Assn. v. Mac Mullen, 46 Pa. Super. Ct. 94 866 
 
 Chadsey v. Lewis, 6 111. 153 47 
 
 Chamberlaine v. Willmore, Palmer's Rep. 313 91 
 
 Chambers v. Philadelphia P. Co., 82 N. J. L. i 933 
 
 vii
 
 viii TABLE OF CASES REPORTED 
 
 Cliampncy v. Smith, 8i ^fass. 512 764 
 
 Cliartcr v. Peeler, Cro. VAh. 597 843 
 
 C'lienerv v. Stevens, 97 Mass. 77 716 
 
 CliicajAO & iX. K. Co. v. Dunleavy, uy 111. 132 465 
 
 ChUders v. Laliann. 18 i\. Mex. 487 301 
 
 Chipman v. Palmer, 77 N. Y. 51 96 
 
 Chism V. Smith, 138 App. Div. (N. Y.) 715 882 
 
 Clark V. iMorey, 10 Johns. (N. Y.) 69 137 
 
 Clark V. Parkinson, 92 Mass. 133 8n 
 
 Clarksons v. Doddridge, 14 Grat. (Va.) 42 49 
 
 Clav V. Oxford, L. R. (1866) 2 Exch. 53 43 
 
 Climax Specialty Co. v. Seneca Button Co., 54 Misc. (N. Y.) 152 77 
 
 Coad V. Cowhiciv, 9 Wyo. 316 621 
 
 College Street, In re, il R. I. 472 544 
 
 Copeiand v. New England Ins. Co., 39 Mass. 135 388 
 
 Copleston v. Piper, i Ld. Raym. 191 325 
 
 Cooper V. Mav, 1 Harr. (Del.) 18 653 
 
 Corwith V. State Bank, 15 Wis. 289 93i 
 
 Courtney v. Baker, 3 Denio (N. Y.) 27 371 
 
 Cromwell v. Sac County, 94 U. S. 351 600 
 
 Crouse v. ^IcVicar, 207 N. Y. 213 552 
 
 Crow V. Williams, 104 Mo. App. 451 912 
 
 ^Dalzell V. Lynch, 4 Watts & S. (Pa.) 255 679 
 
 Dame v. Dame, 43 N. H. 37 225 
 
 Davis V. Barnard, 60 N. H. 550 690 
 
 Davis V. Graniss, 5 Blackf. (Ind.) 79 523 
 
 Davis V. Hurt, 114 Ala. 146 234 
 
 rfDe Chastellux v. Fairchild, 15 Pa. St. 18 9 
 
 De Coppett v. Barnett, 17 T. L. Rep. 273 734 
 
 Deering v. Quivey, 26 Ore. 556 540 
 
 Denny v. Booker, 2 Bibb (Ky.) 427 387 
 
 Denton v. Livingston, 2 Johns. (N. Y.) 96 669 
 
 •yDidil V. Evans, i Serg. & R. (Pa.) 367 460 
 
 Dillingham v. Skein, Hempstead (U. S.) 181 192 
 
 Ditson Co. V. Testa, 213 Mass. 109 822 
 
 Doe e.x dem. Cooper v. Cutshall, i Ind. 246 630 
 
 Dowd V. Seawell, 3 Dev. L. (N. Car.) 185 194 
 
 Downey v. Finucane, 205 N. Y. 251 349 
 
 •Ouncan v. M'Cumber, 10 W^atts (Pa.) 212 694 
 
 ^©uncan's Appeal, 37 Pa. St. 500 710 
 
 Dunlap V. Cody, 31 Iowa 260 293 
 
 Dunlap V. Glidden, 31 Maine 435 555 
 
 Dunning v. Crofutt, 81 Conn. loi 483 
 
 Duvall V. Waters, i Bland Ch. (Md.) 569 175 
 
 Earl V. Brown, i Wils. 302 652 
 
 Earp v. Minton, 138 N. Car. 202 550 
 
 ^aston Bank v. Cor>-ell, 9 Watts & S. (Pa.) 153 396 
 
 Edward Thompson Co. v. Kollmeyer, 46 Ind. App. 400 200 
 
 Ellis V. Culver, 2 Harr. (Del.) 129 490 
 
 Empire State C. Co. v. Atchison, T. & S. F. R. Co., 210 U. S. I 415 
 
 Ervin v. State ex rel. Walley, 150 Ind. 332 56 
 
 Erwin v. Dundas, 4 How. (U. S.) 58 655 
 
 Exchange Mut. L. Ins. Co. v. Warsaw-Wilkinson Co., 185 Fed. 487 934 
 
 Fairfield v. Southport Nat. Bank, 77 Conn. 423 loi 
 
 Falls City v. Spern,-, 68 Xebr. 420 446 
 
 Farmers' &c. Nat. Bank v. Crane, 15 Abb. Pr. (N. S.) (N. Y.) 434 650 
 
 Farni v. Tesson, 66 U. S. 309 57 
 
 Feldenheimer v. Tressel, 6 Dak. 265 784 
 
 Feneff v. Boston & M. Railroad, 196 Mass. 575 93 
 
 Ferrand v. Bingley Tp. &c. Board, 8 T. L. Rep. 70 481
 
 TABLE OF CASES REPORTED IX 
 
 Fidelity Mut. L. Ins. Co. v. Beck, 84 Ark. 57 923 
 
 Fink V. Fraenkle, 20 N. Y. Civ. Proc. 402 718 
 
 First Nat. Bank of Rock Springs v. Foster, 9 Wyo. 157 339 
 
 Fisher v. City of Charleston, 17 W. Va. 595 259 
 
 Foorman v. Wallace, 75 Cal. 552 768 
 
 Forsythe v. Washtenaw, 180 Mich. 633 788 
 
 Foss V. Witham, 91 Mass. 572 775 
 
 Freeman v. Alderson, 119 U. S. 185 567 
 
 French v. Peters, 177 Mass. 568 834 
 
 Frost V. Shaw, 3 Ohio St. 270 724 
 
 Fry V. Hordy, T. Jones 83 449 
 
 Gainesville &c. Railway Co. v. Austin, 122 Ga. 823 3i5 
 
 Gallagher v. True Amer. Pub. Co., 75 N. J. Eq. 171 634 
 
 Gallatin & W. Tpk. Co. v. Fry, 88 Tenn. 296 62 
 
 Garr v. Gomez, 9 Wend. (N. Y.) 649 918 
 
 Garthwaite, Griffin & Co. v. Tatum, 21 Ark. 336 3(>3 
 
 Gibson V. Ledwitch, 84 Kans. 505 614 
 
 Girard v. Grosvenordale Co., 82 Conn. 271 360 
 
 Glines v. Cross, 12 Manitoba 442 884 
 
 Goldey v. Morning News, 156 U. S. 518 291 
 
 Goodwin v. Welshe, Yelv. 151 5^8 
 
 Graves v. Macfarland, 58 Nebr. 802 296 
 
 Gray v. Rothschild, 48 Hun (N. Y.) 596 7i 
 
 Gregoir v. Leonard, 71 Vt. 410 223 
 
 Gue V. Tide Water Canal Co., 65 U. S. 257 670 
 
 Guild V. Cranston, 62 Mass. 506 104 
 
 Gulf, C. & S. F. R. Co. V. Matthews, 28 Tex. Civ. App. 92 442 
 
 Gulick V. Webb, 41 Nebr. 706 755 
 
 Guyer v. Guyer, 6 Houst. (Del.) 430 5^8 
 
 Gwinn v. Hubbard, 3 Blackf. (Ind.) 14 799 
 
 Haebler v. Myers, 132 N. Y. 363 926 
 
 Hail V. Spencer, i R. I. 17 283 
 
 Hambleton v. Dempsey, 20 Ohio 168 463 
 
 rHardenburg v. Beecher, 104 Pa. St. 20 760 
 
 Harris v. Webster, 58 N H. 481 119 
 
 Hartford v. Smith, 199 Fed. 763 250 
 
 Harvey v. Wilde, L. R. 14 Eq. Cas. 438 619 
 
 Hatchett v. Baddeley, 2 Wm. Bl. 1079 "2 
 
 7Hefner v. Albright, 231 Pa. 396 576 
 
 Henry v. Spitler, 67 Fla. 146 304 
 
 ;7Henwood v. Cheesman, 3 Serg. & R. (Pa.) 500 277 
 
 '^ Herod v. Bartley, 15 111. 58 742 
 
 Hertz V. Woodman, 218 U. S. 205 900 
 
 Highway Comrs. v. Bloomington, 253 111. 164 206 
 
 Hill V. Nelson, 70 N. J. L. 376 269 
 
 Hitchcock V. Munger, 15 N. H. 97 ■ 3^7 
 
 Hollister v. Lyon, 177 HI- App. 652 199 
 
 Home Ins. Co. v. Gilman, 112 Ind. 7 75 
 
 Hookin v. Quilter, 2 Str. 1271 529 
 
 Hopkins v. Clark, 158 N. Y. 299 407 
 
 Homer v. Battyn, Buller N. P. 62 798 
 
 Hubbard v. Chapman, 28 App. Div. (N. Y.) 577 857 
 
 Hubbard v. President &c. Hamilton Bank, 48 Mass. 340 636 
 
 Hudson V. Minneapolis, L. & M. R. Co., 44 Minn. 52 435 
 
 Humphrey v. Gerard, 83 Conn. 346 684 
 
 Hyman & Co. v. H. H. Snyder Co., 159 Ky. 354 421 
 
 Independent School Dist. v. Werner, 43 Iowa 643 625 
 
 Indiana, B. & W. R. Co. v. Adamson, 114 Ind. 282 70 
 
 Indiana R. Co. v. Maurer, 160 Ind. 25 428 
 
 Ingham Lbr. Co. v. Ingersoll, 93 Ark. 447 67 
 
 Isaacs V. Evans, 16 Times Law Rep. 480 40S
 
 X TABLE OF CASES RErOUTKD 
 
 Jackson ex dcm. Miller v. Hawley, ii Wend. (N. Y.) i8' 814 
 
 JefFry v. Wood, I Str. 439 907 
 
 Jinks V. American Altp. Co., 102 Ga. 694 776 
 
 Johnson v. Morris. 7 N. J. L. 6 146 
 
 Jones V. Goodbar, 60 Ark. 182 758 
 
 Jones V. Jones, I Bland (Md.) 443 677 
 
 Jones V. Woodwarth, 24 S. Dak. 583 345 
 
 Karges Furniture Co. v. Amalgamated &c. Union, 165 Ind. 421 39 
 
 Karon v. Eisen, 2 N. Y. Civ. Proc. (N. S.) 197 527 
 
 Kells V. Nelson-Tenny Lbr. Co., 74 Minn. 8 838 
 
 Kennon v. Gilmer, 131 U. S. 22 502 
 
 Kenyon v. Saunders, 18 R. I. 590 44 
 
 Kerby v. Jenkins, 2 Tyrvvhitt 499 509 
 
 Kilby V. Erwin, 84 Vt. 266 479 
 
 Kimble v. Dailey, 127 Iowa 665 16 
 
 King V. Wilmington &c. R. Co., I Pennew. (Del.) 452 309 
 
 Kip V. Brigham, 6 Johns. (N. Y.) 158 612 
 
 Kitchins v. Harrall, 54 Miss. 474 52 
 
 Kountze v. Omaha Hotel Co., 107 U. S. 378 840 
 
 Lampson v. Hobart, 27 Vt. 784 873 
 
 Lamy v. Lamy, 4 N. Mex. 43 863 
 
 Lange v. Benedict, T2> N. Y. 12 22 
 
 Leame v. Bray, 3 East 593 218 
 
 Leeper, Graves & Co. v. First Nat. Bank, 26 Okla. 707 807 
 
 Lees v. United States, 150 U. S. 476 852 
 
 ^evi v. Greer, 236 Pa. 475 757 
 
 ^ Le\->stein v O'Brien, 106 Ala. 352 108 
 
 Linson v. Spaulding, 23 Okla. 254 888 
 
 Litchfield v. Goodnow, 123 U. S. S49 609 
 
 Longworthy v. Featherston, 65 Ga. 165 743 
 
 Loomis v. Lehigh Val. R. Co., 208 N. Y. 312 911 
 
 Lord v. Veazie, 8 How. (U. S.) 251 31 
 
 Low v. Mumford, 14 Johns. (N. Y.) 426 89 
 
 Ludwin v. Siano, 36 Misc. (N. Y.) 537 543 
 
 Lumley v. Torsiello, 69 App. Div. (N. Y.) 76 117 
 
 L>-man v. Fidelity &c. Co., 65 App. Div. (N. Y.) 27 419 
 
 Lyon V. City of Elizabeth, 43 N. J. L. 158 673 
 
 McDonald v. Metropolitan St. R. Co., 167 N. Y. 66 412 
 
 McDonald v. Pless, 238 U. S. 264 45i 
 
 McElhanon v. McElhanon, 63 111. 457 36 
 
 -rMcElroy v. Reading, 7 Phila. (Pa.) 433 530 
 
 McNaughton v. McLean, 73 Mich. 250 74i 
 
 ^McNulty v. O'Donnell, 27 Pa. Super. Ct. 93 61 
 
 ;rMcXulty's Estate, In re, 230 Pa. 387 886 
 
 M'Voy v. Wheeler, 6 Port. (Ala.) 201 186 
 
 Mack v. Parks, 74 Mass. 517 658 
 
 Mac Rae v. Kansas City Piano Co., 69 Kans. 457 45 
 
 Macurda v. Lewiston Journal Co., 104 Maine 554 327 
 
 Manby v. Scott, i WoA. 124 801 
 
 Marter v. Henry Sanchez Co., 77 N. J. L. 95 324 
 
 Mason v. Fox, Cro. Jac. 632 538 
 
 Masterson v. Herndon, 77 U. S. 416 831 
 
 ;j^atthew's Appeal, 104 Pa. St. 444 872 
 
 May v. Emerson, 52 (Dre. 262 626 
 
 Megehe v. Draper, 21 Mo. 510 726 
 
 Memmer v. Carey, 30 Minn. 458 579 
 
 Merchants' Bank of Canada v. Schulenberg, 54 Mich. 49 397 
 
 Mille Lacs County Comrs. v. Morrison, 22 Minn. 178 ZZ^ 
 
 -^Miller v. Commonwealth, 5 Pa. St. 294 728 
 
 ^ Miller v. Pamell. 2 Marsh. 78 794
 
 TABLE OF CASES REPORTED XI 
 
 -Miller v. Ralston, i Serg. & R. (Pa.) 309 922 
 
 Mitchell V. McNabb, 58 Maine 506 189 
 
 Moore v. Cass, 10 Kans. 288 362 
 
 Moore v. Hobbs, 79 N- Car. 535 3ii 
 
 Moore v. Terhune, 161 111. App. 155 01 
 
 Morgan v. Kinney, 38 Ohio St. 610 7^3 
 
 Morrice v. Green, 3 Salk. 213 522 
 
 Morrow v. Dudley & Co., 144 Fed. 441 295 
 
 Mutual Assur. Soc. v. Stanard, 4 Munf. (Va.) 539 631 
 
 879 
 80 
 
 Nalle V. Oyster, 230 U. S. 165 
 
 Rational Bank v. Buckwalter, 214 Pa. 289 
 
 • Nevil V. Soper, Salk. 213 327 
 
 New Jersey v. Morris, 82 N. J. L. 14 279 
 
 New York v. Rotolo, 16 Misc. (N. Y.) 579 U 
 
 Nichols V. Guthrie, 109 Tenn. 535 681 
 
 Nierenberg v. Wood, 59 N. J. L. 112 • 91 
 
 Noell V. Wells, l Levinz 235 572 
 
 Northampton v. Smith, 52 Mass. 39° J9 
 
 Noyes v. Parker, 64 Vt. 379 488 
 
 Oakley v. Pegler, 30 Nebr. 628 S07 
 
 Old Dominion &c. Co. v. Bigelow, 203 Mass. IS9 59° 
 
 Orchard v. Williamson, 6 J. J. Marsh. (Ky.) 558 701 
 
 Osman v. Crowley, loi App. Div. (N. Y.) 597 792 
 
 Page V. Contoocook Val. Railroad, 21 N. H. 438 359 
 
 Page V. Freeman, 19 Mo. 421 88 
 
 Palmer v. Board &c. Essex County, 77 N. J. L. 143 547 
 
 Parham v. Harney, 14 Miss. 55 45o 
 
 Parham v. Thompson, 2 J. J. Marsh. (Ky.) 159 665 
 
 Parker v. Clemmons, 80 Vt. 521 210 
 
 Payne v. Payne, 8 B. Mon. (Ky.) 391 654 
 
 Peck V. Snyder, 13 Mich. 21 462 
 
 People V. Mann, 97 N. Y. 530 11 
 
 People ex rel. Fitch v. Mead, 29 How. Pr. (N. Y.) 360 781 
 
 People ex rel. Raster v. Healy, 230 111. 280 253 
 
 Peoples Nat. Bank v. Nickerson, 106 Maine 502 3^3 
 
 Persey v. DeB., Y. B. 45 Edw. Ill, 3 ^8 
 
 TPeter v. Steel, 3 Yeates (Pa.) 250 202 
 
 ^ Peterson v. San Francisco, 115 Cal. 211 067 
 
 Phillips V. Ward, 2 H. & C. 7^7 594 
 
 Pinckney v. Pinckney, 114 Iowa 44I 766 
 
 Pleasants v. Fant, 89 U. S. 116 4io 
 
 Pond V. Kimball, loi Mass. 105 72i 
 
 Poole's Case, l Salk. 568 665 
 
 Postal V. Cohn, 83 App. Div. (N. Y.) 27 248 
 
 Powers V. Sturtevant, 200 Mass. 519 874 
 
 Prentis v. Atlantic Coast Line, 211 U. S. 210 6 
 
 Press Pub. Co. v. Monteith, 180 Fed. 356 893 
 
 Price V. Virginia-Carolina C. Co., 136 Ga. 175 I75 
 
 Pursley v. Withle, 4 Ind. App. 383 536 
 
 Pyles V. Piedmont Mt. Airy Guano Co., 58 Fla. 348 385 
 
 Quagliana v. Jersey City &c. R. Co., 77 N. J. L. loi 475 
 
 Rains v. McNairy, 4 Humph. (Tenn.) 356 691 
 
 yRand V. King, 134 Pa. St. 641 820 
 
 / Ransom v. Pierre, loi Fed. 665 844 
 
 Ray V. Chesapeake & O. R. Co., 57 W. Va. 333 422 
 
 •^eber v. Schroeder, 221 Pa. 152 805 
 
 'Reilly v. Sicilian &c. Co., 170 N. Y. 40 582 
 
 Reynolds v. Hoxsie, 6 R. I. 463 727
 
 XU TAUI.i; OF CASES REPORTED 
 
 Rhoads v. Booth, 14 Towa 575 63 
 
 Rice V. Sergeant, 7 Mod. j;] 700 
 
 Kiclicson V. Ryan, 14 111. 74 827 
 
 Rini;.:;old v. Haven & Livinpston. l Cal. loS 401 
 
 Roberts v. Ilnizlies, 7 W. & \V. 399 454 
 
 Robinson v. Robinson, Cro. Jac. 14 606 
 
 Rollers v. Duhart, 07 Cal. 500 247 
 
 Ropers v. Kennay, il Jnr. 14 687 
 
 Romain v. Board &c. Mnscatine Conntj-, i Morris (Iowa) 357 286 
 
 Root V. Fcllowcs, 60 Mass. 29 506 
 
 Ross V. McCaldin, 195 N. Y. 210 336 
 
 Royal Aquarium &c. Soc. v. Parkinson, L. R. I Q. B. 431 2 
 
 Kumford Nat. Bank v. Arsenault, 108 Maine 241 404 
 
 St. John V. Andrews Inst., 192 N. Y. 382 914 
 
 St. Louis, I. M. & S. R. Co. v. Spencer, 71 Fed. 93 430 
 
 Sampson v. Tuxon, Cro. Jac. 699 925 
 
 ^Savage v. Evcrman, 70 Pa. St. 315 643 
 
 Savcry v. Busick, 11 Iowa 487 484 
 
 Schmidt V. New York ^Mut. F. Ins. Co., 67 Mass. 529 364 
 
 Schwinn v. Perkins, 79 N. J. L. 515 164 
 
 Scott V. Shearman, 2 W. Bl. 977 563 
 
 Semayne's Case, 5 Coke 91 704 
 
 Sessions v. Johnson, 95 U. S. 347 588 
 
 Sheridan v. New York, 68 N. Y. 30 S3 
 
 Shives V. Eno Cotton Mills, 151 N. Car. 290 486 
 
 Sibley v. Leek, 45 Ark. 346 881 
 
 Sikes V. Ransom, 6 Johns. (N. Y.) 279 855 
 
 Singer v. Hutchinson, 183 III. 606 617 
 
 Sinnott v. Feiock, 165 N. Y. 444 238 
 
 Slingsby v. Boulton, i Ves. & B. 334 733 
 
 Smith V. Picsiada, 174 Ind. 134 470 
 
 Smith V. Fames, 4 111. 76 366 
 
 Snow V. West, 37 Utah 528 501 
 
 Southern Bell Tel. & T. Co. v. Glawson, 140 Ga. 507 903 
 
 Starr v. Taylor, 4 McCord L. (S. Car.) 413 115 
 
 State V. \\hitaker, 114 N. Car. 818 266 
 
 State ex rel. Mackey v. District Court, 40 Mont. 359 275 
 
 Steamboat Burns, 9 Wall. (U. S.) 237 37 
 
 Steele, In re, 156 Fed. 853 1 
 
 Stephens v. Howe, 127 Alass. 164 643 
 
 Stevens v. Clark, 62 Fed. 321 817 
 
 •^tewart v. Peterson, 63 Pa. St. 230 638 
 
 Storm V. United States, 94 U. S. 76 877 
 
 Stumps V. Kelley, 22 111. 140 426 
 
 Sybell Belknap's Case, Y. B. i Hen. IV, PI. 2 in 
 
 Sypherd v. Myers, 80 N. J. L. 321 894 
 
 Tait V. Atkinson, 3 U. C. Q. B. 152 188 
 
 Tandy v. Waesch, 154 Cal. 108 55 
 
 Taylor v. Carpenter, 2 Woodb. & M. (U. S.) i 133 
 
 Taylor v. Claypool, 5 Blackf. (Ind.) 557 587 
 
 Tegarden v. Phillips, 14 Ind. App. 27 351 
 
 Thaw, In re, 172 Fed. 288 382 
 
 Tillman v. Davis, 28 Ga. 494 298 
 
 Thomas v. People, 107 111. 517 574 
 
 Thompson v. Douglas, 35 W. Va. 337 354 
 
 Thompson v. McManama, 2 Disn. (Ohio) 213 751 
 
 Thompson's Case, 122 Mass. 428 796 
 
 Thomson v. Clerk, i Cro. Eliz. 504 736 
 
 -fThouron v. Paul, 6 Whart. (Pa.) 615 179 
 
 /Towner v. Phelps, i Root (Conn.) 250 301 
 
 Townsend v. Masterson &c. Co., 15 N. Y. 587 825
 
 TABLE OF CASES REPORTED xiil 
 
 Trier v. Herman, 115 N. Y. 163 B30 
 
 Truett V. Legg, 2,2 Md. 147 ' 548 
 
 Turner v. Fendall, i Cranch. (U. S.) 117 661 
 
 United States v. Dashiel, 70 U. S. 688 778 
 
 United States Cement Co. v. Cooper, 172 Ind. 599 4215 
 
 Upton V. Wells, I Leon. 145 3jq 
 
 Van Horn v. Hann, 39 N. J. L. 207 126 
 
 Waite V. Dolby, 8 Humph. (Tenn.) 406 803 
 
 Walker v. Waterbury, 81 Conn. 13 867 
 
 —Wallace v. United Elec. Co., 211 Pa. 473 288 
 
 Waller v. Weedale, Noy 107 737 
 
 Washburn v Allen, yy Maine 344 -iq-i 
 
 Waters v. Gooch, 6 J. J. Marsh. (Ky.) 586 170 
 
 West V. Ratledge, 4 Dev. L. (N. Car.) 31 281 
 
 Western & A. R. Co. v. Brown, 102 Ga. 13 384 
 
 Wetzel V. Hancock County, 143 111. App. 178 307 
 
 White V. Improved Property Holding Co., 140 App. Div. (N. Y.) 520 322 
 
 ^Whitney v. Hopkins, 135 Pa. 246 515 
 
 Whitney v. Wellesley & B. St. R. Co., 197 Mass. 495 433 
 
 Whittaker v. Stangvick, 100 Minn. 386 213 
 
 Wiesmann v. Donald, 125 Wis. 600 124 
 
 Wilber V. Widner, i Wend. (N. Y.) 56 504 
 
 Wilbur V. Gilmore, 38 Mass. 250 606 
 
 Wilkins v. Brock, 81 Vt. ZTi^^ 525 
 
 Williams v. Gallien, I Rob. (La.) 94 771 
 
 Wilson V. Abrahams, i Hill (N. Y.) 207 440 
 
 Wilson V. Louisiana Purchase Exp. Com. 133 Iowa 586 41 
 
 Woddye v. Coles, Noy 59 745 
 
 Wood V. Gunston, Style 466 473 
 
 Wood V. Stoddard, 2 Johns. (N. Y.) 194 358 
 
 Woods V. Monell, i Johns. Ch. (N. Y.) 502 747 
 
 ^Work V. Prall, 26 Pa. Super. Ct. 104 ^77 
 
 Worth V. Newlin (N. J. Eq.), 36 Atl. 30 420 
 
 Wright V. Sharp, i Salk. 288 850 
 
 Young V. Ashburnsham, 3 Leonard's Rep. 161 191 
 
 Young V. Central R. Co., 232 U. S. 602 418 
 
 Young V. Kershaw, 81 L. T. Rep. 531 476 
 
 Zahorka v. Geith, 129 Wis. 498 496
 
 CHAPTER I. 
 
 The Court. 
 
 IN RE STEELE. 
 
 United States District Court, N. D. Alabama, 1907. 
 
 156 Fed. 853.' 
 
 Hundley, J. : The word "court" originally meant only a yard, 
 palace, or garden, and according to Cowell it meant "the house where 
 the king remained with his retinue; also the place where justice was 
 administered." — Anderson's Law Dictionary. So, in early history, 
 the'coifr't meant the place where the king was domiciled, because the 
 king was actually the fountain and dispenser of justice. The earlier 
 courts were merely assemblages in the courtyard of the baron or of 
 the king himself by those v^^hose duty it was to appear at stated times 
 or upon summ.ons. This idea of the place predominating as the desig- 
 nation of a court caused Blackstone to adopt Coke's definition that 
 "a court is a place where justice is judicially administered." 3 Black- 
 stone's Commentarie 24. Indeed, the Supreme Court of Alabama, in 
 Ex parte Branch & Co., 63 v\la. 384, adopted the definition that a 
 court is "a place where justice is administered." This definition has 
 been held to be too narrow, and the definition given by a majority of 
 judicial decisions is that: "A court is a tribunal dvdy constituted, 
 and present at the time and place fixed by law for judicial investiga- 
 tion and determination of controversies." 2 Century Dictionary, p. 
 1312; 8 A. & E. Encyc. of Law, p. 22. 
 
 A court is also held to be "an incorporeal being, which requires 
 for its existence the presence of the judge." 8 A. & E. Encyc. of 
 Law, p. 22 ; State v. Judges, 32 La. Ann. 1261 ; Lawyers Tax Cases, 
 8 Heisk. (Tenn.) 650; Mason v. Woerncr, 18 Mo. 570; Hobart v. 
 Hobart, 45 Iowa 503 ; Matter of Terrill, 52 Kan. 29, 34 Pac. 457, 38 
 Am. St. Rep. 327. It has been further held that: "The court is not 
 the judge or judges as individuals, but only when at the proper time 
 and place, they exercise judicial powers." - 
 
 ^ Extract from opinion of the court. 
 
 ^3 Blackstone's Commentaries, ch. 4; 2 Lowell's Government of England, 
 pt. 7, p. 439; Stephen's Commentaries (15th ed.), bk. 5, ch. 4; Constitution of 
 United States, Art. Ill, nth Amendment; i Kent's Commentaries, lectures 
 14 to 17; Br\xe's American Commonwealth (2d ed.), chaps. 22, 23, 42; United 
 States Judicial Code, Act of March 3, 1911, 36 Stat, at Large 1087 and amend- 
 ments. 
 
 I — Civ. Proc. i
 
 THE COURT 
 
 ROYAL AQUARIUM SUMMER AND WINTER GARDEN 
 SOCIETY x: PARKINSON. 
 
 In the Court of Aiteal, 1892. 
 
 Law Reports (1S92), i Queen's Bench, 431.' 
 
 Lord Eshek. M. R. : In this case the action was for a slander 
 upon the plaintiffs in the way of their business, and the jury found 
 a verdict for the plaintiffs for 250/. We are now asked to enter 
 judgment for the defendant on several grounds. The statement com- 
 plained of was made by the defendant at a meeting of the London 
 County Council, of which he is a member, when the question before 
 such meeting was whether a license for music and dancing should be 
 granted to the plaintiffs. He expressed a very strong opinion that it 
 should not be granted, and in expressing such opinion he used very 
 strong language. He said, in effect, that he had been to the Aqua- 
 rium "and had seen there an indecent performance — a performance 
 which was the most indecent that could be imagined. He described 
 it as a performance between two figures dressed as a male and a 
 female. Even if it had been so, to call the performance described 
 the most indecent that could be imagined seems to me nonsense. But 
 it turned out that the figures were not dressed as a male and female, 
 but as two males, so that all this story of gross indecency was noth- 
 ing but the defendant's own imagination. The jury appear in effect 
 to have found that he stated what he knew to be untrue. The ques- 
 tion for us on this appeal is whether, upon the evidence, the case for 
 the plaintiffs can be supported. 
 
 It was argued, in the first place, on behalf of the defendant, that 
 he was exercising a judicial function when he spoke the words com- 
 plained of, and therefore was entitled to absolute immunity in respect 
 of anything he said. It is true that, in respect of statements made in 
 the course of proceedings before a court of justice, whether by judge, 
 or counsel, or witnesses, there is an absolute immunity from liability 
 to an action. The ground of that rule is public policy. It is applica- 
 ble to all kinds of courts of justice; but the doctrine has been car- 
 ried further; and it seems that this immunity applies wherever there 
 is an authorized inquiry which, though not before a court of justice, 
 is before a tribunal which has similar attributes. In the case of Dazv- 
 kins V. Lord Rokehy* the doctrine was extended to a military court 
 of inquiry. It was so extended on the ground that the case was one 
 of an authorized inquiry before a tribunal acting judicially, that is to 
 say, in a manner as nearly as possible similar to that in which a court 
 of justice acts in respect of an inquiry before it. This doctrine has 
 never been extended further than to courts of justice and tribunals 
 i acting in a manner similar to that in which such courts act. Then 
 
 'The reporter's statement of the facts, the arguments of counsel and 
 portions of the judgments are omitted, as is the concurring opinion of Lopes, 
 
 L. J. 
 
 *L R 8 Q. B. 255; L. R. 7 H. L. 744, and see People v. Van Allen, 55 
 
 N. Y. 31 (1873).
 
 ROYAL ACQUARIUM, &C. SOCIETY V. PARKINSON 3 
 
 can it be said that a meeting of the county council, when engaged in 
 considering appUcations for Hcenses for music and dancing, is such 
 a tribunal? It is difficult to say who are to be considered as judges 
 acting judicially in such a case. The manner in which the business 
 of such a meeting is conducted does not appear to present any anal- 
 ogy to a judicial inquiry. Again, there is another consideration. It 
 is argued for the plaintiffs that this function of granting licenses, 
 which has been transferred from the justices to the county council, is 
 not judicial, but merely administrative. The justices had two dis- 
 tinct and separate duties. They had judicial duties. They had to try 
 criminal cases, and in respect of that duty they would be entitled 
 to the absolute immvtnity which I have mentioned. They had also 
 administrative duties, one of which was this duty of granting li- 
 c^TiFeS^, and for the purpose of performing these they held consulta- 
 tions among themselves. In the case of duties properly administra- 
 tive, such as that of granting licenses, their action was consultative, 
 for the purpose of administration, and not judicial. When such 
 duties are transferred to the county council, what they do in respect 
 of them is likewise consultative for the purpose of performing an 
 administrative duty; it is not judicial. That consideration also ap- 
 pears to me to show clearly that the case does not come within the 
 doctrine of absolute immunity applicable to tribunals similar to 
 courts of justice. 
 
 Fry, L. J. : I am of the same opinion. * * * I do not desire 
 to attempt any definition of a "court." It is obvious that, according 
 to our law, a court may perform various functions. Parliament is 
 a court. Its duties as a whole are deliberative and legislative: the 
 duties of a part of it only are judicial. It is nevertheless a courts 
 There are many other courts which, though not courts of justice, 
 are nevertheless courts according to our law. There are, for instance, 
 courts of investigation, like the coroner's court. In my judgment, 
 therefore, the existence of the immunity claimed does not depend 
 upon the question whether the subject-matter of consideration is a 
 court of justice, but whether it is a court in law. Wherever you 
 find a court in law, to that the law attaches certain privileges, among 
 which is the immunity in question. 
 
 But this argument was used on behalf of the defendant. It was 
 said that the existence of this immunity is based on consideration of 
 public policy, and that, as a matter of public policy, wherever a body 
 has to decide questions, and in so doing has to act judicially, it must 
 be held that there is a judicial proceeding to which this immunity 
 ought to attach. It seems to me that the sense in which the word 
 "judicial" is used in that argument is this: It is used as meaning 
 that the proceedings are such as ought to be conducted with the fair- 
 ness and impartiality which characterize proceedings in courts of 
 justice, and are proper to the functions of a judge, not that the mem- 
 bers of the supposed body are members of a court. Consider to 
 what lengths the doctrine would extend, if this immunity were ap- 
 plied to every body which is bound to decide judicially in the sense 
 of deciding fairly and impartially. It would apply to assessment 
 committees, boards of guardians, to the inns of court when consid-
 
 4 TlIK COURT 
 
 ering the conduct of one of their members, to the General Medical 
 Coimcil when considering questions alYecting the position of a medi- 
 cal man.'' and to all arbitrators. Is it necessary, on grounds of public 
 policy, that the doctrine of immunity should be carried as far as this? 
 I say not. I say that there is ample protection afforded in such cases 
 by the ordinary law of privilege. I find no necessity or propriety in 
 carrying the doctine so far as this argument requires. It is to be 
 borne in mind that there is a great difference between the constitu- 
 tion of bodies of the kind to which I have referred and most courts. 
 Courts are, for tlie most part, controlled and presided over by some 
 person selected as specially qualified for the purpose ; and they have 
 generally a fixed and dignified course of procedure, which tends to 
 minimize the risks that might flow from this absolute immunity. 
 These considerations do not apply to bodies such as I have men- 
 tioned. Furthermore, there is no precedent for extending this im- 
 munity to all bodies which are bound to decide matters "judicially," 
 in the sense in which this argument uses the term. One observation 
 I wish to make here, in order to prevent what I have said from being 
 misunderstood. I have spoken of the immunity as applying to 
 "courts." I do not wish anything I have said to be taken as express- 
 ing a doubt that there are matters done by a member of a court in a 
 judicial capacity as to which, though done in his private room and 
 not in open court, this immunity may exist. No question arises here 
 as to such a case, and I only refer to it to prevent being misunder- 
 stood. 
 
 The question then arises, whether the county council, when hear- 
 ing application for licenses, were acting as a court, and whether 
 the defendant on that occasion was acting as a judge or member of 
 that court. The character in which the council acted turns, in the 
 first place, on the language of the statute 25 Geo. 2, ch. 36. The 
 second section of that Act provides for the granting by the quarter 
 sessions of such licenses for dancing and music, etc., as they in their 
 discretion shall think proper. That enactment appears to me to con- 
 fer on the justices an administrative duty or power. I find in the 
 Act no words prescribing any particular mode of procedure, or re- 
 quiring them to hear and determine. I find, on the contrary, that 
 certain things subsequent to the granting of the license are to be done 
 in open court. The license is to be sealed by the justices in open 
 court, and it is to be read by the clerk of the peace publicly in court. 
 These provisions appear to me to be applicable to a proceeding which 
 may take place in the magistrates' private room, but the result of 
 which is afterwards to be made public in open court. The nature of 
 the discretion given and the language of the Act appear to me to 
 show that the proceeding is administrative, not judicial. We were 
 pressed with the words "in their discretion," used in the statute. It 
 was argued that these words imported a judicial discretion. But 
 it is not every discretion that is judicial. The magistrates are clothed 
 
 'Compare Groenvelt v. Burzvell, i Salk. 200 (1700); s. c. I Ld. Raym. 
 213 with Allbuit V. General Medical Council, L. R. (1889) 23, Q. B. Div. 400; 
 Leeson v. General Medical Council, L. R. (1889) 43 Ch. Div. 366.
 
 ROYAL ACQUARIUM, &C. SOCIETY V. PARKINSON 5 
 
 in many cases with a discretion that is not judicial. The first statute 
 that deals with the county rate (12 Geo. 2, ch. 29, § i) says that the 
 justices shall have power to make a rate for such sums or sum of 
 money as they in tlieir discretion shall think fit; but it could not be 
 contended that that discretion is judicial. There is nothing in the 
 section which makes the proceeding tliat of a court, though it has to 
 be done discreetly. Then comes the question, whether there is any- 
 thing in the Local Government Act, 1888, to alter the nature of the 
 proceeding in this respect. I come to the conclusion that there is not. 
 It is clear from the language of the Act that it was intended to draw 
 a broad line between the administrative and judicial functions of the 
 justices, and to transfer the former to the county council, while leav- 
 ing the latter in the hands of the justices. Section 3 provides that 
 there shall be transferred to the county council the administrative 
 business of the justices of the county in quarter sessions assembled — 
 that is to say, all business done by the quarter sessions, or a com- 
 mittee appointed by the quarter sessions, in respect of the several 
 matters following; and these include, by subsection 5, the licensing, 
 under any general Act, of houses and other places for music and 
 dancing. But the matter does not rest there. For section 78, sub- 
 section 2, shows the intention to have been to exclude from the trans- 
 fer of the magistrates' duties to the county council all judicial duties. 
 That section provides in subsection 2 that the transfer of povv^ers and 
 duties enacted by the Act shall not authorize any county council to 
 exercise any jurisdiction under the Summary Jurisdiction Acts, or 
 to perform any judicial business, or otherwise act as justices or a 
 justice of the peace. The statute, therefore, so far from giving any 
 new color to the suggestion made on behalf of the defendant, leaves 
 the matter precisely where it was before. I, therefore, come to the 
 conclusion that the body to which the statements complained of were 
 made was not a court, and that those statements are not entitled to 
 the immunity claimed for them. 
 Application dismissed.® 
 
 ^Reg V. London County Council, L. R. (1892) i Q. B. 190; Boulter v. 
 Kent Justices, L. R. (1897) A. C. 556; Reg v. London County Council, 71 L. 
 F. 638 (1894) ; Fuller v. Colfax, 4 McCrary (U. S.) 535, U Fed. 177 (1882) ; 
 Grider v. Tally, 77 Ala. 422 (1884) ; State v. Thome, 112 Wis. 81, 87 N. W. 
 797. 55 L- R- A. 956 (1901) ; Staples v. Brown, 113 Tenn. 639 (1904) ; Chinn 
 V. Superior Court, 156 Cal. 478 ( 1909) . Compare Queen v. Manchester Justices, 
 L. R. (1899), I Q. B. 571 ; Barratt v. Reams, L. R. (i905),_ i K. B. 504; Rex 
 V. Woodhouse, L. R. (1906), 2 K. B. 501; Donoghue's License, 5 Pa. Sup . 
 Ct. I (1897). ■
 
 TUK COURT 
 
 PRENTIS 7'. ATLANTIC COAST LINE. 
 
 / Supreme Court of the United States, 1908. 
 
 f 
 
 211 U. S. 210.' 
 
 Holmes, J.: These are bills in equity brought in the Circuit 
 Court to enjoin the members and clerk of the Virginia State Corpora- 
 tion Commission from publishing or taking any other steps to enforce 
 a certain order fixing passenger rates. The bills allege, with some 
 elaboration of tlie facts, that the rates in question are confiscatory, 
 and other matters not necessary to mention, and set up the Four- 
 teenth Amendment, etc. The defendants appeared specially, and by 
 demurrer and plea respectively put forward tliat the proceedings 
 before the commission are proceedings in a court of the state, which 
 tlie courts of the United States are forbidden to enjoin, Rev. Stats., 
 sec. 720,^ and that the decision of the commission makes the legality 
 of the rates res judicata. On these pleadings final decrees were en- 
 tered for the plaintiflfs, and the defendants appealed to this court. 
 Therefore, as the case is presented, it is to be assumed that the order 
 confiscates the plaintiffs' property and infringes the Fourteenth 
 Amendment if the matter is open to inquiry. The question princi- 
 pally argued, and the main question to be discussed, is whether the 
 order is one which, in spite of its constitutional invalidity, the courts 
 of the United States are not at liberty to impugn. 
 
 The State Corporation Commission is established and its powers 
 are defined at length by the constitution of the state. There is no 
 need to rehearse the provisions that give it dignity and importance 
 or that add judicial to its other functions, because we shall assume 
 that for some purposes it is a court within the meaning of Rev. Stat., 
 sec. 720, and in the commonly accepted sense of that word. Among 
 its duties it exercised the authority of the state to supervise, regulate 
 and control public service corporations, and to that end, as is said 
 by the Supreme Court of Virginia and repeated by counsel at the bar, 
 it has been clothed witli legislative, judicial and executive powers. 
 Norfolk & Portsmouth Belt Line R. R. Co. v. Commonwealth, 103 
 Virginia, 289, 294. . . 
 
 The state constitution provides that the commission, in the per- 
 formance of the duty just mentioned, shall from time to time pre- 
 scribe and enforce such rates, charges, classification of traffic, and 
 rules and regulations, for transportation and transmission companies 
 doing business in the state, and shall require them to establish and 
 maintain all such public service, facilities and conveniences, as may 
 be reasonable and just. Before prescribing or fixing any rate or 
 
 '• The arguments of counsel are omitted and only so much of the judg- 
 ment given as relates to the distinction between judicial and legislative func- 
 
 '"The writ of injunction shall not be granted by any court of the United 
 States to stay proceedings in any court of a state, except where such injunc- 
 tion may be authorized by any law relating to proceedings in bankruptcy. 
 Rev. Stat. (1901), sec. 720, 4 Fed. Stat. Ann. 509.
 
 PRENTIS V. ATLANTIC COAST LINE 7 
 
 charge, etc., it is to give notice (in case of a general order not di- 
 rected against any specific company by name, by four weeks' publi- 
 cation in a newspaper) of the substance of the contemplated action 
 and of a time and place when the commission will hear objections 
 and evidence against it. If an order is passed, the order again is to 
 be published as above before it shall go into effect. An appeal to the 
 Supreme Court of Appeals is given of right to any party aggrieved, 
 upon conditions not necessary to be stated, and that court, if it re- 
 verses what has been done, is to substitute such order as in its 
 opinion the commission should have made. The commission is to 
 certify the facts upon which its action was based and such evidence 
 as may be required, but no new evidence is to be received, and how 
 far the findings of the commission can be revised perhaps is not quite 
 plain. No other court of the state can review, reverse, correct or 
 annul the action of the commission, and in collateral proceedings the 
 vaHdity of the rates established by it can not be called in doubt. 
 
 When a rate has been fixed, the commission has power to enforce 
 compliance with its order by adjudging and enforcing, by its own 
 appropriate process, against the offending company the fines and 
 penalties established by law. But a hearing is required, and the 
 validity and reasonableness of the order may be attacked again in 
 this proceeding, and all defenses seem to be open to the party 
 charged with a breach. 
 
 On July 31, 1906, under the provisions outlined, the commission 
 published in a newspaper notice to the several steam railroad com- 
 panies doing business in Virginia, and all persons interested, that at 
 a certain time and place it would hear objections to an order pre- 
 scribing a maximum rate of two cents a mile for the transportation 
 of passengers, with details not needing to to be stated. A hearing 
 was had, and the complainants (appellees) severally appeared and 
 urged objections similar to those set up in the bills. On April 27, 
 1907, the commission passed an order prescribing the rates, but in 
 more specific form. For certain railroads named, including all of 
 the complainants except as we shall state, the rate was to be two 
 cents ; for certain excepted branches of the Southern Railway Com- 
 pany, two and half; for others, including the Chesapeake Western 
 Railway, three ; and for others three and a half cents a mile, with a 
 minimum charge of ten cents. Publication of the order was directed, 
 and at that stage these bills were brought. 
 
 In order to decide the cases it is not necessary to discuss all the 
 questions that were raised or touched upon in argument, and some 
 we shall lay on one side. We shall assume that when, as here, a 
 state constitution sees fit to unite legislative and judicial powers in a 
 single hand, there is nothing to hinder so far as the Constitution of 
 the United States is concerned. Dreyer v. Illinois, 187 U. S. 71, 
 83, 84; Winchester & Strashurg R. R. Co. v. Commonwealth, 106 
 Va. 264, 268. We shall assume, as v/e have said, that some of 
 the powers of the commission are judicial, and we shall assume, 
 without deciding, that, if it was proceeding against the appellees to 
 enforce this order and to punish them for a breach, it then would
 
 S Tin: COURT 
 
 be sitting as a court and would be protected from interference on the 
 part of the courts of the United States. 
 
 But we think it eciually plain that the proceedings drawn in ques- 
 tion here arc legislative in their nature, and none the less so tliat they 
 have taken place with a body which at another moment, or in its 
 l>rincipal or dominant aspect, is a court such as is meant by sec. 720. 
 A judicial inquiry investigates, declares and enforces Habilities as 
 they stand on present or past facts and under laws supposed already 
 to exist. That is its purpose and end. Legislation on the other hand 
 looks to the future and changes existing conditions by making a new 
 rule to be applied thereafter to all or some part of those subject to 
 its power. The establishment of a rate is the making of a rule for 
 the future, and therefore is an act legislative not judicial in kind, as 
 seems to be fully recognized by the Supreme Court of Appeals, 
 Commonwealth v. Atlantic Coast Line Ry. Co., 106 Va. 61, 64, 
 and especially by its learned President in his pointed remarks in 
 Winchester and St7'asburg R. R. Co. and others v. Commonwealth, 
 106 Va. 264, 281. See further Interstate Commerce Commission 
 V. Cincinnati, New Orleans and Texas Pacific Ry. Co., 167 U. S. 
 479, 499, 500, 505 ; San Diego Land and Town Co. v. Jasper, 189 
 U. S. 439- 440. 
 
 Proceedings legislative in nature arc not proceedings in a court 
 within the meaning of Rev. Stat., sec. 720, no matter what may be the 
 general or dominant character of the body in which they may take 
 place. Soutliern Ry. Co. v. Greensboro Ice and Coal Co., 134 Fed. 
 Rep. 82, 94, affirmed sub nom. McNeill v. Southern Ry. Co., 202 
 U. S. 543. That question depends not upon the character of the 
 body but upon the character of the proceedings. Ex parte Virginia, 
 100 U. S. 339, 348. They are not a suit in which a writ of error 
 would lie under Rev. Stat., sec. 709, and Act of February t8, 1875, ch. 
 80, 18 Stat. 318. See Upshur County v. Rich, 135 U. S. 467; Wallace 
 V. Adams. 204 U. S. 415, 423. The decision upon them can not be 
 res judicata w'hen a suit is brought. See Reagan v. Farmers' Loan 
 and Trust Co., 154 U. S. 362. A.nd it does not matter what inquiries 
 may have been made as a preliminary to the legislative act. Most 
 legislation is preceded by hearings and investigations. But the effect 
 of the inquiry, and of the decision upon it, is determined by the 
 nature of the act to which the inquiry and decision lead up. A judge 
 sitting with a jury is not competent to decide issues of fact; but 
 matters of fact that are merely premises to a rule of law he may 
 decide. He may find out for himself, in whatever way seems best, 
 whether a supposed statute ever really was passed. In Pickering v. 
 Barkley, Style, 132, merchants were asked by the court to state 
 their understanding as an aid to the decision of a demurrer. The 
 nature of the final act determines the nature of the previous inquiry. 
 As the judge is bound to declare the law he must know or discover 
 the facts that establish the law. So when the final act is legislative 
 the decision which induces it can not be judicial in the practical 
 sense, although the questions considered might be the same that 
 would arise in the trial of a case. If a state constitution should pro- 
 vide for a hearing before any law should be passed, and should de-
 
 DE CHASTELLUX V. FAIRCIIILD 9 
 
 clare that it should be a judicial proceeding in rem and the decision 
 binding upon all the world, it hardly is to be supposed that the 
 simple device could make the constitutionality of the law res judi- 
 cata, if it subsequently should be drawn in question before a court 
 of the United States. And all that we have said would be equally 
 true if an appeal had been taken to the Supreme Court of Appeals 
 and it had confirmed the rate. Its action in doing so would not have 
 been judicial, although the questions debated by it might have been 
 the same that might come before it as a court, and would have been 
 discussed and passed upon by it in the same v\'ay that it would deal 
 with tliem if they arose afterwards in a case properly so-called. We 
 gather that these are the views of the Supreme Court of Appeals 
 itself. Atlantic Coast Line Ry. Co. v. Commonwealth, 102 Va. 
 599, 621. They are implied in many cases in this and other United 
 States courts in which the enforcement of rates has been enjoined, 
 notwithstanding notice and hearing, and what counsel in this case 
 call litigation in advance. Legislation can not bolster itself up in 
 that way. Litigation can not arise until the moment of legislation 
 is past. See Southern Ry. Co. v. Commonzvealth, 107 Va. 771, yy2.'^ 
 
 DE CHASTELLUX v. FAIRCHILD. 
 Supreme Court of Pennsylvania, 1850. 
 
 Error to the Comm.on Pleas of Bradford County. 
 
 Trespass was brought to May term, 1840, for cutting and carry- 
 ing away tim.ber trees. On the trial there was a verdict for the 
 plaintiff for $600, a new trial was refused and judgment was entered 
 on the verdict. The defendant took a writ of error in 1844 upon 
 which a non pros, was entered. A second writ of error was taken 
 in 1845, the cause argued in the Supreme Court and judgment 
 affirmed. An execution having issued, the legislature on March 16. 
 1874, passed an act providing that "a new trial is hereby granted and 
 allowed and directed to be granted and allowed by the court of com- 
 mon pleas," in said case, "with like effects in all respects as if the 
 same had not been heretofore tried in said court and passed upon 
 on motion for new trial." Subsequently the court of common pleas 
 set aside the execution and the plaintiff brought error. ^° 
 
 ° The remainder of the opinion is omitted, as well as the dissenting opin- 
 ions of Fuller, C. J., and Harland, J. The decree of the circuit court in favor 
 of the railroads that were the plaintiffs below was reversed on the ground that 
 the proceedings had been prematurely brought. 
 
 Accord: Mississippi R. Com. v. ///. Cent. R. Co., 203 U. S. 335 (1906) ; 
 Knoxville v. Knoxznlle Water Co., 212 U. S. I (1909) ; Louisville & Nashville 
 R. Co. V. Garrett, 22,1 U. S. 298 (1913). Contra: People v. Willcox, 194 N. Y. 
 383 (1909). 
 
 ^^ The statement of facts is abridged and the arguments of counsel 
 omitted.
 
 lO TIIF. COURT 
 
 GiHSON, C. T- : If ''^'ly thiui:^ is self-evident in the structure of our 
 government, it is, that the legislature has no power to order a new 
 trial, or to direct the court to order it, either before or after judg- 
 ment. The power to order new trials is judicial; but the power of 
 the legislature is not judicial. It is limited to the making of laws; 
 not to the exposition or execution of them. The functions of the 
 several parts of the government are thoroughly separated, and dis- 
 tinctlv assigned to the principal branches of it, the legislature, the 
 executive, and the judiciary, which, within their respective depart- 
 ments, are equal and co-ordinate. Each derives its authority, medi- 
 ately or immediately, from the public ; and each is responsible, medi- 
 ately or immediately, to the people for the exercise of it. When 
 either shall have usurped the powers of one or both of its fellows, 
 then will have been effected a revolution, not in the form of the 
 government, but in its action. Then will there be a concentration of 
 the powers of the government in a single branch of it, which, what- 
 ever may be the form of the constitution, will be a despotism — a 
 government of unlimited irresponsible, and arbitrary rule. It is idle 
 to say that the authority of each branch is defined and limited in the 
 constitution, if there be not an independent power able and willing 
 to enforce the limitations. Experience proves that it is thoughtlessly 
 but habitually violated ; and the sacrifice of individual right is too 
 remotely connected with the objects and contests of the masses to 
 attract tlieir attention. 
 
 From its very position, it is apparent that the conservative power 
 is lodged with the judiciary, which, in the exercise of its undoubted 
 right, is bound to meet every emergency; else causes would be de- 
 cided not only by the legislature, but, sometimes, without hearing or 
 evidence. The mischief has not yet come to that, for the legislature 
 has gone no farther than to order a rehearing on the merits ; but it 
 is no more intolerable in principle to pronounce an arbitrary judg- 
 ment against a suitor, than it is injurious in practice to deprive him 
 of a judgment, which is essentially his property, and to subject him 
 to the vexation, risk and expense of another contest. 
 
 It has become the duty of the court to temporarize no longer, but 
 to resist, temperately, though firmly, any invasion of its province, 
 whether great or small. 
 
 We are bound to say, therefore, that Braddee v. Brownfield'^'^ is 
 not law, and that it was erroneously decided. As the act before us 
 is null, the plaintifif ought to have been allowed to proceed on his 
 judgment. ^- 
 
 Order reversed. 
 
 " 23L&.S-XPa.) 271 0841 ) • 
 
 "Accord : Merrill v. Sherburne, i N. H. 199, 8 Am. Dec. 52 (1818) ; Leuns 
 V. Webh, 3 Greenl. (Maine) 326 (1825) ; Youngv. State Bank, 4lnd. 301 (1853) ; 
 Taylor v. Place, 4 R. I. 324 (1856) ; Trustees v. Bailey, 10 Fla. 238 (1863) ; 
 People V. Frisbie, 26 Cal. 135 (1864) ; Weaver v. Lapsley, 43 Ala. 224 (1S69) ; 
 Griffin's Exr. v. Cunningham, 20 Gratt. (Va.) 31 (1870) ; Arnold v. Kelley, 5 
 W. Va. 446 (1872). See, also, Marbury v. Madison, i Cranch (U. S.) I37i 2 
 L. ed. 60 (1803) ; Dupy v. Wick-wire, i D. Chip. (Vt.) 237, i Am. Dec. 729 
 (1814); Holden v. James, ii Mass. 396, 6 Am. Dec. 174 (1814); Picquet, 
 appellant, 22 Mass. 65 (1827) ; Hill v. Sunderland, 3 Vt. 507 (1831) ; State
 
 PEOPLE V. MANN II 
 
 THE PEOPLE V. MANN. 
 Supreme Court of New York, 1885. 
 
 97 N. Y. 530. 
 
 An appeal from an order of the general term of the Supreme 
 Court awarding a writ of prohibition, directed to the defendants, 
 commanding them to desist from further proceedings in an action 
 before Mann, a justice of the peace, who was over seventy years of 
 age. Article 6, sec. 12 of the State Constitution provided that, "no 
 person shall hold the office of justice or judge of any court longer 
 than until and including the last day of December next after he shall 
 be seventy years of age."^^ 
 
 Andrews, J. : The question presented is whether the limitation 
 of age contained in this section applies to justices of the peace. That 
 it does so apply has been determined by the judgment now under 
 review. The same question was considered by the general term of 
 the fourth department in the case of People v. Dohr'mg (2 Supr. Ct. 
 Rep. 458), and was determined the other way. The Dohring case 
 was decided in 1873, and the question now presented for the first 
 time in this court, has never, so far as we can ascertain, been con- 
 sidered in tlie courts below, except in that case and the one now 
 before us, which was first decided at special term in January, 1884. 
 It has come to the knowledge of the court from official sources that 
 since the adoption of the present judiciary article of the constitution 
 many persons in different parts of the state have been elected justices 
 of the peace, who have served after having attained the age of 
 seventy years, some having been elected before, and others after 
 they had reached that age. The question is therefore important, not 
 only because it involves the interpretation of a constitutional provi- 
 sion, but also for the reason that it practically affects important 
 public and private interests. 
 
 V. Fleming, 7 Hump. (Tenn.) 152, 46 Am. Dec. 73 (1846) ; Burch v. Newbury, 
 10 N. Y. 374, Seld. notes 28 (1852) ; McDaniel v. Correll, 19 111. 226, 68 Am. 
 Dec. 587(1857) ; Denny-v. Mattoon, 84 Mass. 361, 79 Am. Dec. 784 (1861) ; Rich- 
 nrds V. Rote. 68 Pa. 248 (i87-L) : Sparhawk v. Sparhazvk, 116 Mass. 315 (1^4). 
 In Merrill V. Sherburne, 1 N. H. 199 (1818), it is said per Woodbury, J. ; "A 
 marked difference exists between the employrnents of judicial and legislative 
 tribunals. The former decide upon the legality of claims and_ conduct; the 
 latter make rules, upon which, in connection with the constitution, those de- 
 cisions should be founded. It is the province of judges to determine what is 
 the law upon existing cases. In fine, the law is applied by the one, and made 
 by the other. To do the first, therefore, to compare the claims of parties 
 with the laws of the land before established, is in its nature a judicial act. 
 But to do the last, to pass new rules for the regulation of new controversies, is 
 in its nature, a legislative act; and if these rules interfere with the past or 
 the present, and do not look wholly to the future, they violate the definition 
 of a law, 'as a rule of civil conduct' ; because no rule of conduct can with con- 
 sistency operate upon what occurred before the rule itself was promulgated." 
 " The statement of facts is condensed, arguments of counsel and part of 
 the opinion of the court omitted.
 
 12 THE COURT 
 
 The policy of fixing by constitutional provision a limitation of 
 age to judicial service, first established in tliis state in respect to the 
 chancellor and judges of the Supreme Court by the constitution of 
 1822, and abandoned in the constitution of 1846, was re-established 
 by the judiciary article of 1869, primarily with reference to the terms 
 c'f those judges, which by the same article had been extended to the 
 period of fourteen years (Folger, J., People v. Gardner, 45 N. Y. 
 819). 
 
 It is, however, we think, quite evident that the limitation does 
 not apply to every officer who is invested with judicial power. It 
 is the "office of justice or judge of any court," which the clause 
 declares shall not be held by any person beyond tlie age specified. 
 But the judicial function may be vested in a person, to be exercised 
 for certain purposes and on particular occasions, who does not hold 
 the "office of justice or judge of any court," v/ithin the meaning of 
 this clause. The constitution itself furnislies one illustration. The 
 president of the senate, the senators and the judges of the Court of 
 Appeals, comprise the court for the trial of impeachments, created 
 /by the first section of the sixth article. But neither the Lieutenant- 
 \ Governor, nor the senators, although they act as judges on the trial 
 /of an impeachment, "hold the office of justice or judge of any court." 
 ( The office which the Lieutenant-Governor holds is that indicated by 
 his title, and so of the senators. The judicial function \yhich they 
 exercise in the particular case is annexed to their respective offices. 
 They sit as judges on the trial of impeachments, but they do not hold 
 the office of judges while acting as such. We think it plain that they 
 would not be disqualified from acting as members of the court after 
 attaining the age of seventy years, under the clause in the constitu- 
 tion now in question. Another illustration is furnished in the stat- 
 )utes creating mayor's courts in cities, by which judicial powers are 
 / vested for certain limited purposes in mayors, and other municipal 
 officers. There is such a court in the city of Hudson, and it may be 
 in other cities, which is held by the mayor, or by the mayor in con- 
 junction with other officers. The mayor in tliese cases acts as a 
 'judge, or magistrate, but the judicial function is incident to the 
 office of mayor. He does not hold tlie office of judge, and if eligible 
 to the office of mayor. -iiIim-l!l>:Ii - cventy years of age, he may,_ we 
 tliink, discharge the duties coriiicclcd with that office after that time, 
 including the holding of the mayor's court, without a violation of the 
 constitution. 
 
 Returning to the immediate point now in judgment the question 
 recurs: Does a justice of the peace "hold the office of justice or 
 judge of any court." v/ithin the meaning of sec. 13, art. 6, of the con- 
 stitution? This office was not created by the constitution. Justices 
 of the peace had been known to the common law of England for a 
 century and a half before America was discovered. They were, in 
 their original institution, mere conservators of the peace, exercising 
 no judicial function. It is said in Burns' Justice (vol. 3 [19th ed.], 
 p. 4), that bv the statute i Edw. Ill, which is the first statute that 
 ordains the assignment of justices of the peace by the king's com- 
 mission, "they had no other power but only to keep the peace." But
 
 PEOPLE V. MANN 
 
 13 
 
 from time to time their powers were enlarged, and they came to con- 
 stitute a very important agency in the administration of local gov- 
 ernment in England. They discharged a great variety of duties con- 
 nected witli the support of the poor, the reparation of highways, the 
 imposition and levying of parochial rates and other local affairs. 
 See enumeration in Stat. 16, Geo. II, ch. 18. They were invested 
 with judicial powers for the first time (it seems) by the Statute 34, 
 Edw. Ill, ch. I, which gave them power to try felonies, but then 
 only when two or more acted together, and not singly, and it is said 
 by Blackstone (vol. i, p. 349), "they then acquired the more hon- 
 orable appellation of justices." I do not find that they ever exercised 
 in England jurisdiction in civil causes. 
 
 The office of justice of the peace was brought here by the Eng- 
 lish colonists. From the earliest colonial period it has existed in 
 this country. By the code known as "the Duke's Laws" for the gov- 
 ernment of the colony of New York, promulgated in 1665, justices 
 of the peace were commissioned for the towns in the province, with 
 the^same powers as in England. The judicial establishment created 
 by "the Duke's Laws," comprised a local court in each town, with 
 jurisdiction of actions of debt and trespass under £5, to be held 
 by the constable and overseers of the town ; a court of sessions for 
 each of the three ridings, and a court of assize for the whole prov- 
 ince. Justices of the peace vvere entitled to sit as members of the 
 court of sessions and the court of assize, but not of the town courts. 
 In 1691 the judicial system was reorganized by an act of the colo- 
 nial legislature. By that act the town courts were changed into 
 courts of justice of the peace, to be held by one justice and two free- 
 holders. It was not until 1737 that a justice of the peace was em- 
 powered singly to hold a court for the trial of actions.^* (See mon- 
 ograph upon the courts in this state by Chief Judge Daly, preface 
 I E. D. Smitli's Rep.; also 3 Daly's Rep. App.) But from the 
 earliest colonial period until this time, justices of the peace here, as 
 in England, have been invested with various and important functions 
 connected with local administration, quite independent of tlieir judi- 
 cial authority. A glance at the statutes will show how important a 
 part these officers have had in the administration of the poor laws, 
 tlie highway acts, the adjustment of town charges, and indeed in 
 nearly every department of local administration. It is important to 
 notice that the judicial function exercised by justices of the peace 
 was a graft upon tlieir original authority, and "that the enlargement 
 of their powers has not been in this direction alone, but that by 
 gradual accretion they have come to constitute a most important 
 factor in the corporate administrative life of tov^^ns and counties. 
 The gradual growth of their powers and functions furnishes a good 
 illustration of the manner in which institutions grow up and adapt 
 themselves to the changing conditions and demands of society, until 
 
 A " In Pennsylvania, an act of May 28, 1715, 3 Stat, at Lar^e 63, permitted 
 a single justice of the peace to hear civil cases involving debts under forty 
 shillings.
 
 14 THE COURT 
 
 they are brt)ught to subserve, in the most effective way, the pubUc 
 interests. 
 
 We liave failed in the purpose of this brief historical reference 
 to the orig^in and ffrowth of the office of justice of the peace, unless 
 it shows how widely it differs in the circumstances of its institution 
 and development, and in the variety of its functions, from the ofhce 
 of judiije of an ordinary court. We know, from observation, that 
 justices of the peace are not in common speech known as judges, 
 but are uniformly called by the distinctive title of their office. Un- 
 questionably tlieir jurisdiction as a tribimal for the trial of small 
 causes is now the most important of their functions, but they have 
 never lost their character as administratitve officers, and in this re- 
 spect they occupy a position and character and exercise powers 
 unique, and in many respects quite dissimilar to those exercised by 
 other judicial officers. ^^ 
 
 The order of the general and special terms should be reversed 
 and the writ dismissed. 
 
 THE PEOPLE OF THE STATE OF NEW YORK v. ROTOLO. 
 
 County Court, Oswego County, 1908. 
 61 Misc. (N. Y.) 579. 
 
 Three indictments for violation of the Excise Law. 
 
 Motion to dismiss the same upon the ground that, when the evi- 
 dence was presented to the grand jury and the indictment found, no 
 court was in session at Oswego, and the acts of the grand jury were 
 void.^^ 
 
 Stowell, J. : On January 6, 1908, a trial term of the Supreme 
 Court, with a grand jury, began at the courthouse in Oswego and 
 continued until January 31, when the presiding judge made an order 
 "That this court be continued open but stand in recess until such 
 time as it shall be adjourned by the court." No further term or 
 session of the court was held until February 26. On January 26, 
 the presiding judge discharged the trial jurors and excused the 
 court officers and attendants from further service; and, during the 
 interim between January 31 and February 26, he was absent from the 
 city of Oswego. 
 
 "As to whether the court of a justice of the peace is a court of record 
 the American authorities arc divided and the question depends largely on 
 local statutes and practice. They have been held courts of record in Connecti- 
 cut. McVeigh v. Ripley, 77 Conn. 136 (1904) and Delaware, Cloud v. The 
 State, 2 Harr. (Del.) 361 (1838) ; contra, West Virginia, Roberts v. Hickory 
 Camp, C. & C. Co., 58 W. Va. 276 (1905). 
 
 The civil jurisdiction of a justice of the peace is wholly statutory. Gtirn- 
 sey v. Lovell, 9 Wend. (N. Y.) 319 (1832) ; Albrighl v . Lab p. 26- Ea. QO 
 (1856) ; Schroder v. Ehlers, 31 N. J. L. 44 (1864) ; Norton v. Elliott, 90 Ala. 
 480, 8 So. 103 (1889). 
 
 "A brief portion of the opinion is omitted.
 
 NEW YORK V. ROTOLO 1 5 
 
 On February 4, the judge h^d a special term of the Supreme 
 Court at Syracuse, which continued several days, and he was pre- 
 sumably engaged in duties of his office during all the time between 
 January 31 and February 26, at other places than in Oswego County. 
 
 The evidence against defendant was presented to the grand jury 
 February 4 or 5, and, on the fifth, the grand jury adjourned until 
 February 26 at which time they were discharged. I am unable to 
 see that, with the judge holding court in Onondaga County, a grand 
 jury sitting in Oswego County have power to find an indictment. 
 
 A court has been defined to be "an organized body with defined 
 powers, meeting at certain times and places for the hearing and de- 
 cision of cases and other matters brought before it and aided in its 
 proper business by its proper officers." Matter of Choate, 24 Abb. 
 N. Cas. 430-433. "A place where justice is judiciously administered. 
 * * * A court is properly composed of persons consisting of the 
 judge or judges and other proper officers, united together in a civil 
 organization, and invested by law with the requisite functions for 
 the administration of justice. * * * The court is clearly an organ- 
 ization invested by law v/ith certain functions for the administration 
 of justice. * * * When summoned, sworn and organized, the 
 grand jury are a constitutent part of the court, for the performance 
 of the functions and duties devolved upon the court, as much as a 
 body of twelve petit jurors impaneled for the trial of a person." 
 Id. 435- 
 
 "The court is the totality of the constituent parts. It consists 
 of the entire judicial organization for the trial of causes and it is 
 immediately present whenever and wherever — from the opening to 
 the adjournment of the sitting — these constituent parts are actually 
 performing the functions devolving upon them by law." The times 
 and places for holding terms of court are fixed by statute. Code Civ. 
 Pro., par. 238. In Matter of Savin, 131 U. S. 267, the court said: 
 "We are of the opinion that within the meaning of the statute the 
 court, at least when in session, is present in every part of the place 
 set apart for its own use, and for the use of its officers, jurors and 
 witnesses." 
 
 I think that the attempt of the learned justice to keep the court 
 open, he being in the meantime absent from the county and part of 
 the time holding a term of court at Syracuse, is not warranted by 
 the law or practice and that the action of the grand jury during that 
 time was null and void.^^ 
 
 Motion granted. 
 
 '^^ Dunn V. State, 2 Ark. 229, 35 Am. Dec. 54 (1839), at p. 252; In matter 
 of King's Co. Elev. Railroad Co., 78 N. Y. 383 (1879) ; Greenzvood v. Brad- 
 ford, 128 Mass. 296 (1880) ; Lewis v. Hoboken, 42 N. J. L. 377 (1880) ; Ex 
 parte Gardner, 22 Nev. 280, 39 Pac. 570 (1895) ; White County v. Gwin, 136 
 Ind. 562 (1893) ; Putt s V. Armof.s Ejlgte. 164 Pa. 2. .^0 Atl. 357, 26 L. R. A. 
 213 (1894) ; State v. Woodson, 161 Mo. 444, 61 S. W. 252 (1900) ; Johnston 
 V. Hunter, 50 W. Va. 52, 40 S. E. 448 (1901) ; Mitchell v. Emmons, 104 Maine 
 76 (1908) ; Moline v. Cliicaqo, B. & O. R. Co., 262 111. 52 (1914). As to terms 
 of court, see Mj/rf"-" ^ ^"ilv MuUpr 3S Pa. 270 (iS^)!") ; Branson v. Schnlten, 
 104 U. S. 410, 26 L. ed. 797 (1881) ; Von Schmidt v. Widber, 99 Cal. 511, 34 Pac. 
 109 ( 1893) . As to places for holding court, see King v. Kina . i Penn. & W- CPa)
 
 l6 THE COURT 
 
 KIMBLE v'. DAILEY. 
 
 Supreme Court of Iowa, 1905. 
 
 127 Toica 665." 
 
 Ladd, J.: Prior to the appointment of J. I. Dailey, in 1892, as 
 gn-iardian of B. F. Kimble, who had been adjudged insane, Martin 
 bavis had acted in that capacity, and had procured an order of 
 court directing him to sell 160 acres of land to the Oak and High- 
 land Park Improvement Company for the consideration of $60,000, 
 of which $5,000 was to be paid in cash, $5,000 in one year, $10,000 
 in two years, and $40,000 in five years, with interest at seven per 
 cent, per annum on deferred payments. Before the order was exe- 
 cuted, Davis was succeeded by Dailey as guardian, and he was di- 
 rected by the court to carry out the contract of his predecessor. This 
 was done, and the Oak and Highland Park Improvement Company, 
 upon receiving a deed, conveyed to the Auburn Heights Land Com- 
 pany. The land was platted into blocks and lots, and the lots divided 
 into thirteen groups, on each of which was executed a mortgage to 
 a trustee, securing ten bonds of the face value of $1,000 each. These 
 130 bonds were delivered to the guardian as security for the pur- 
 chase price. When the cash payment was made he surrendered to 
 the Oak and Highland Park Improvement Company one block of ten 
 bonds, and one of like number when the second $5,000 was paid. 
 Subsequently the officers of the company requested him to deliver to 
 them three blocks of ten bonds each, to be sold and the proceeds 
 applied in improving the property. The guardian did so, but, as the 
 testimony tended to show, upon the advice of a district judge when 
 at his home sick. It will be noted that in turning over these thirty 
 bonds the guardian parted with security on three of the thirteen 
 groups of lots, and so did on the mere promise of the officers to im- 
 prove the remaining property against which the guardian retained 
 a lien. 
 
 One of the exceptions to the final report of the guardian raises 
 the question as to whether the guardian should be charged with the 
 value of these bonds. The advice of the judge, given orally outside 
 of court, furnished no justification for what he did. What the judge 
 said was entitled to no more consideration than a similar view ex- 
 pressed by any other equally reputable lawyer would have been. 
 Judges are authorized by statute to make certain orders in vacation, 
 and these are expressly defined to be directions made in writing 
 (sec. 3842, Code), and when so made are to be filed forthwith with the 
 
 15 (1829) ; Eaton & Hamilton County v. Varniim, 10 Ohio St. 622 (1858) ; Gould 
 V. Bennett, 59 N. Y. 124 (1874) ; State v. Beverly, 43 N. J. L. 139 (1881) ; 
 Williams v. Rentzel, 60 Ark. 155, 29 S. W. 374 (1895) ; and compare Smith 
 V. Jones, 23 La. Ann. 43 (1871) ; Christie v. Boivne, 76 Hun (N. Y.) 42 
 (■1894); Bates V. Sahin, 64 Vt. 511, 24 Atl. 1013 (1892); Litchfield Bank v. 
 Church, 29 Conn. 137 (i860). King v. Faher & Co., 51 Pa. 387 0.865). 
 
 " The statement of facts is~onlilt<?d and onTyTRaf part of the opinion of 
 the court relating to the unofficial action of the judge is printed.
 
 KIMBLE V. DAILEY ly 
 
 clerk (sec. 3846, Code). Bristol Savings Bank v. Judd, 116 Iowa, 26. 
 The power of a judge in vacation to make orders or exercise judi- 
 cial functions is that only which is conferred by statute. Prosser 
 V. Prosser, 64 Iowa, 378; Laiighlin v. Peckham, 66 Iowa, 121 ; Blair 
 V. Reading, 99 111. 600; 17 Am. & Eng. Encyc. of Law (2d ed) 724.^^ 
 And nowhere in the code is he authorized to advise officers of courts 
 or others, or to make oral directions, in any matter. On the con- 
 trary, he is prohibited from practicing as an attorney or counselor 
 at law, and from giving "advice in relation to any action pending or 
 about to be brought in any of the courts of this state." Section 281, 
 Code. The functions of his office are not advistory, but to direct and 
 command, and what he may say outside of court, unless reduced to 
 writing so as to constitute an order, is not official, and can be re- 
 garded as of no more consequence than it wovild if spoken by him 
 when not a judge. State Central Sav. Bank v. Fanning Bail-Bearing 
 Chain Co., 118 Iowa, 698, 709; Whitlock v. Wade, 117 Iowa, 153; 
 Young v. Rothrock, 121 Iowa, 588; In re Thomas' Estate, 26 Colo. 
 1 10. In the last case the court said : "It is not the duty of an incum- 
 bent of a judicial position to advise parties to any action regarding 
 their rights or duties, or to make any orders in relation to them, 
 except when the matter calling for an order is presented to him in 
 his official capacity; and mere advice or suggestion upon his part 
 regarding matters which are not before him for consideration, and 
 in which he does not assume to act judicially, are no protection to 
 those who choose to rely upon them." In Marlow v. Marlow, 48 
 Iowa, 640, and Latham v. Myers, 57 Iowa, 519, the orders were 
 made by the court and overlooked in making up the record, and oral 
 evidence of what the orders were seems to have been received with- 
 out objection, rather than a record thereof entered nunc pro tunc. 
 In Harlin v. Stevenson, 30 Iowa, 374, the payments, though made 
 on the oral advice of the judge, were subsequently approved in a 
 settlement with the county court, which was in no manner assailed. 
 No order was entered by the judge in this case, and what he may 
 have said in conversation with the guardian furnished no justifica- 
 tion for the conduct of the latter in surrendering the bonds.-" 
 
 "In Pittsburg, F. & W. R. Co. v. Hurd, 17 Ohio St. 144 (1866), it is said 
 per Scott, J. : "Jurisdiction at chambers is incidental to and grows out of 
 the jurisdiction of the court itself. It is the power to hear and determine out 
 of court, such questions arising between the parties to a controversy, as might 
 well be determined by the court itself, but which the legislature has seen fit 
 to intrust to the judgment of a single judge, out of court without requiring 
 them to be brought before the court in actual session. It follows that the 
 jurisdiction of a judge at chambers, can not go beyond the jurisdiction of the 
 court to which he belongs, or extend to matters with which the court has 
 nothing to do." See further, Larco v. Sasanewa, 30 Cal. 560 (1866) ; Cnmm. 
 V. Maqee, 8 Pa. 240 (1848) ; Pressley v. Harrison, 102 Ind. 14 (1884) ; Clover 
 V. Adams, L. K. 5 (J. B. U. 622 (1881) ; Gricrson v. Harmon, 16 S. Car. 618 
 (1881) ; Key v. Paul, 61 N. J. L. 133 (1897). 
 
 "" The principal case is to be distinguished from those in which formal 
 application is made to a chancellor or judge for instructions in his official ca- 
 pacity. Gibbins v. Shepard, 125 Mass. 541 (1878) ; Baxter v. Baxter, 43 N. J. 
 Eq. 82 (1887) ; Nobbs v. Law Reversionary Interest Soc., L. R. (1896), 2 Ch. 
 Div. 830. 
 
 2 — Civ. Proc.
 
 1 8 THF. COURT 
 
 PERSEY r. DeB. 
 
 AssizKS, 1372. 
 
 Liber Assisaniin, 45 Edu^ard III, 3."' 
 
 Heiirv Torscy and another once brought an assize of of novel 
 disseisin against one A. DeB. before Monbray and Wakbruge — and 
 pending the assize, Wakbruge died, and a commission was directed 
 to tlie said Henry to be associated as companion to the said Mon- 
 seigneur Monbray, ad oinnes /Issisas coram quibuscunque Jiisticiares 
 arrauiment capieret, etc., and now Henry was summoned to this 
 assize and he appeared by attorney. 
 
 Holt :-- Sir, you see well how Monseigneur John Monbray and 
 Henry Persey are justices to take this assize, and Henry can not be 
 a party and a judge and take this assize, and Monseigneur John can 
 not take it without a companion, v.^herefore on this day nothing can 
 be done. 
 
 FiTZ, J. : Sir, this assize was brought by Henry at a time when 
 Wakbruge was justice, and it is not reasonable that the suit of 
 Henry should be prejudiced because of a thing that did not happen 
 because of his own act, nor of his default, and the said Henry was 
 made justice pending his suit by command of the King; a matter in 
 which he had no choice. Wherefore it is not reasonable that his 
 suit should be delayed on this account. 
 
 And afterward he would have been nonsuited, so that the other 
 plaintiff witli him could have the assize of the moiety. 
 
 Monbray: I can not make a nonsuit without my companion 
 and Henry can never make a nonsuit against himself, VN^herefore 
 nothing can be done in this suit to-day. 
 
 Tank :-" Sir, it is not reasonable that he who is named plaintiff 
 with Henry should suffer disadvantage because Henry is named 
 justice pending the writ. And sir, since Persey never appeared to 
 this suit in his proper person, it is possible that he is another H[enry 
 Persey who brought the writ than this Henry who is made justice. 
 W^ierefore since this is possible, it is not inconvenient that you and 
 Henry should make the nonsuit. 
 
 And upon this it was adjourned before themselves at West- 
 minster. Upon which day it was the advice of all the sages that 
 Henry could not hold this plea, but that it behooved that a special 
 assize be granted for Henry and the other plaintiff before other 
 justices.^* 
 
 ^ The plaintiff Persey was king's sergeant and occasionally employed as 
 judge of assize. He was made a baron of the exchequer in 1375 and a judge 
 of the common pleas in 1377. 
 
 "John Holt, made a judge of the common pleas in 1383. 
 
 ^ William Tank was made chief baron of the exchequer in 1374. 
 
 '-* Accord : Chancellor of Oxford's Case, 8 Henry VI, 18; City of London 
 V. Wood, 12 Mod. 669 (1701), at p. 687; Wright v. Crump, 7 Mod. I (1702), 
 s. c. Salkeld, 201, 2 Ld. Raym. 766. Holding stock in a corporation disqualifies
 
 NORTHAMPTON V. SMITH 19 
 
 INHABITANTS OF NORTHAMPTON v. SMITH. 
 
 Supreme Judicial Court of Massachusetts, 1846. 
 
 52 Mass. 390."^ 
 
 Shaw, C. J. : This was an appeal from the decree of the judge 
 of probate of the County of Hampshire, by which he decHned, on 
 account of interest, to take jurisdiction of the probate of the will of 
 Oliver Smith, late of Hatfield, and directed the proceedings upon 
 the said will to be transferred to the court of probate of the County 
 of Worcester, being the most ancient adjoining county. This objec- 
 tion is founded on the provision of the Rev. Stat., ch. 83, § 15, 
 directing that when a judge of probate shall be interested in any 
 case within his jurisdiction, the case shall be transferred to the pro- 
 bate court of the most ancient adjoining county. The interest of 
 the judge was supposed to arise from the fact, that he was one of 
 the inhabitants of the town of Amherst; tliat there were, in this 
 will, many bequests to charitable purposes, for the use and benefit 
 of classes of persons described as dwelling in eight towns enumer- 
 ated, of which towns Amherst is one; that if those bequests were 
 beneficial to these towns, tliey had an interest, in their corporate 
 capacity, in establishing the bequests, and of course in proving the 
 will; and that by means thereof, Mr. Conkey, the judge of probate, 
 as an inhabitant of Amherst and a member of tlie corporation, had 
 a derivative interest in the same bequests. 
 
 the holder from sitting as chancellor or judge in a suit to which the corpora- 
 tion is a party. Dimes v. Grand Junction Canal, 3 H. L. C. 759 (1852) ; Adams 
 V. Minor, 121 Cal. 372 (1898). As to whether mere relationship to a stock- 
 holder ought to disqualif3^ Compare: Searsburg Turnpike Co. v. Cutler, 6 
 Vt. 315 (1834), wuth Place v. The Butternut Woolen Co., 28 Barb. (N. Y.) 
 
 503 (1857). , . . , , . , . , , 
 
 At the common law it was no objection that the judge was related to a 
 party to the suit. Brookes V. Earl of Rivers, Hard. 503 (1669). But now by 
 statutes and decisions the general rule is that near relationship of the judge 
 to a party to the suit will disqualify him from acting. Matter of Aldrich, no 
 Mass. 189 (1872) ; Russell v. Belcher, 76 Maine 501 (1884) ; Stearnes v. Curll, 
 Camphell &Co.. 4 Pa. C. C ^6q (1887). 
 
 At theTommon law no impropriety attached to sitting as judge in a case 
 after having acted as counsel. Tounsend v. Hughes, 2 Mod. 150 (1677); 
 Thellusson v. Rendlesham, 7 H. L. Cas. 428 (1859) ; Owings v. Gibson, 2 A. K. 
 Marsh 515 (1820) ; Den v. Tatem, i N. J. L. 164 (i793)> but see Gen. Stat. 
 N.J. (1896), Vol. II, p. 2576. 
 
 Now by statutes and decisions a judge is generally held disqualified from 
 acting in a case where he has previously appeared as counsel. Rev. Stat. U. S., 
 § 615, and see Illinois Central Railroad v. Illinois, 146 U. S. 387 (1892), at p. 
 476; Moses V. Julian, 45 N. H. 52 (1863) ]J<nlb's Fstat.e. 4 Watts (Pa.^ 154 
 (1835). But a judge is not disqualified because he may have formerly repre- 
 sented the parties in other matters. Keller v. Riverton Water Co., 3,4 Pa . Supe r. 
 £t- ^Q L-/ ^-^07,^ ■ or because his son is of counsel. People v. Patrick, 183 N. Y. 
 52 (1905) • 
 
 ^''The statement of the facts and a part of the opinion of the court are 
 omitted.
 
 20 TIIK COURT 
 
 The great question, and the one raised on the appeal, is, whether 
 tlie judge of probate, as an inhal)itant of the Town of Amherst, 
 and a member of that municipal cor])oration, had such an interest in 
 this will, within the meaning of the statute, as to supersede his juris- 
 diction of the probate of the will, and transfer it to another county. 
 It is true tliat the plain dictates of natural justice, independently 
 of all articles of Magna Charta, bills of rights, or other provisions of 
 positive law, require that a man shall not be judge in his own cause. 
 And it is only a just application of this principle, that he shall not 
 sit in judgment in deciding a question, in which he has a personal 
 interest. But this, like all otlier very general propositions, in order 
 to make it the basis of a practical rule, must have a reasonable con- 
 struction, and must be taken, not as absolute and invariable, but 
 with all necessary and implied qualifications. If the term "interest" 
 were used in the loose sense it sometimes is, consisting in a strong 
 and sincere desire to promote all enterprises for the advancement 
 of learning, philanthropy, and general charity, or a similar interest, 
 with all good men, to repress and put down pernicious and mis- 
 chievous schemes, no man could be found fit to be intrusted with 
 the administration of justice; for no man can be exempt from such 
 interests. But, even where there are pecuniary interests, there must 
 be some exceptions ; as when the Commonwealth is a party in a 
 criminal prosecution or a penal action, where the penalty enures to 
 the state, and all civil suits on recognizances and other debts, or for 
 the recovery of property, every citizen has a pecuniary interest. 
 And yet none but citizens can be judges. Our own declaration of 
 rights has made some approximation towards a limitation of the 
 generality of the maxim, by declaring (art. 29) that "it is the right 
 of every citizen to be tried by judges as free, impartial and inde- 
 pendent, as the lot of humanity will admit." It is obvious that no 
 nearer approximation to the rule of absolute impartiality can be 
 made, by any system of laws. 
 
 We are then to consider what is the nature of the interest, in- 
 tended by Rev. Stat., ch. 83, sec. 15, which shall take the case out of 
 the jurisdiction of the judge of probate, and transfer it to the court 
 of probate of an adjoining county. 
 
 I. We think it is not to be a mere possible, contingent interest; 
 not an interest in the question or general subject, to which the mat- 
 ter requiring adjudication relates; but one that is visible, demon- 
 strable and capable of precise proof. Cottle, Appellant, 5 Pick. 483. 
 Sigoiirney v. Sibley, 21 Pick. loi, and 22 Pick. 507. It is not the 
 bias or prejudice which would be sufficient to set aside a juror. 
 Davis V. Allen, 11 Pick. 466. It is to be considered that such an 
 interest, in the judge of probate, is not only to oust him of his juris- 
 diction, but is to confer jurisdiction on another court of probate, 
 which otherwise would not have it. It must therefore depend upon 
 facts capable of being precisely averred and proved, and thus put 
 in issue and tried. The importance of this consideration will be 
 appreciated, when it is considered, that if jurisdiction is taken by a 
 probate court, not entitled to it by law, the entire proceedings are 
 void; the practical consequences of which may be extensively in-
 
 NORTHAMPTON V. SMITH 21 
 
 jurious. Holyoke v. Haskins, 5 Pick. 20. Coffin v. Cottle, 9 Pick. 
 287. 
 
 2. It must be a pecuniary or proprietary interest, a relation by 
 which, as a debtor or creditor, an heir or legatee, or otherwise, he 
 will gain or lose something by the result of the proceedings, in con- 
 tradistinction to an interest of feeling, or sympathy, or bias, which 
 would disqualify a juror.'*^ Smith v. Bradstreet, 16 Pick. 264. 
 
 3. It must be certain, and not merely possible or contingent. 
 Hawes v. Humphrey, 9 Pick. 350. IVilbraham v. County Commis- 
 sioners, II Pick. 322. Danvers v. County Commissioners, 2 Met. 
 185. It must be direct and personal, though such a personal inter- 
 est may result from a relation, which the judge holds as the member 
 of a town, parish or other corporation, where it is not otherwise 
 provided by law, if such corporation has a pecuniary or proprietary 
 interest in the proceedings. 
 
 It may be, and probably is, very true, as the human mind is con- 
 stituted, that an interest in a question or subject-matter, arising 
 from feeling and sympathy, may be more efficacious in influencing 
 the judgment, than even a pecuniary interest; but an interest of 
 such a character would be too vague to serve as a test by which to 
 decide so important a question as tliat of jurisdiction; it would not 
 be capable of precise averment, demonstration and proof; not vis- 
 ible, tangible, or susceptible of being put in issue and tried; and 
 therefore not certain enough to afford a practical rule of action. It 
 is like the principle applying to the case of the competency of a wit- 
 ness; a direct pecuniary interest, however small, on being proved, 
 renders him incompetent ; but the strongest interest from sympathy, 
 from interest in the question, and even an expected interest in the 
 property in controversy, not yet vested, does not render him incom- 
 petent. 
 
 On examining this will of Oliver Smith, we can not perceive 
 that it vests any pecuniary interest, legal or beneficial, in the towns 
 named, other than Northampton. The will provides for the future 
 annual distribution of considerable sums of money, in charit}', for 
 the relief and assistance of various classes of indigent persons to be 
 selected from those residing within the limits of these towns. But 
 the distribution of a sum of money within the limits of a town, al- 
 though it may give a spring to business, and indirectly benefit the 
 inhabitants, as members of society, and holders of property, yet is 
 not a direct pecuniary interest to the town in its corporate capacity, 
 through which its members derive a pecuniary interest. And al- 
 though it may be said, in a loose sense, that such a provision for 
 various classes of persons, and the distribution of so much money, 
 would be of great benefit to the town, and although the inhabitants 
 of such town would feel strongly inclined to aid in promoting and 
 establishing such a charity, and even be willing to pay money in 
 securing it, yet, when strictly considered, it means only that such 
 
 ^* Accord: Bryan v. State, 41 Fla. 643, 26 So. 1022 (1899). Statutes in- 
 many states have made bias or prejudice a ground for disqualifying a judge. 
 See 23 Cyc. 582; 17 Am. & Eng. Ency. of Law (2d ed.) 738.
 
 22 TllK COURT 
 
 an esiabllshmeiit would be useful and beneficial to the dwellers in 
 such town ; nt)t that it would confer any corporate right upon the 
 town. It affords no direct or necessary exemption from taxes. It 
 is the same interest which the inhabitants of a town often feel and 
 manifest in the establishment of a college, academy, hospital, and 
 c\en a courthouse and jail, within their limits. 
 
 The court are therefore of opinion, that the town of Amherst, 
 as a municipal corporation, in its corporate capacity, takes no pecu- 
 niary interest, legal or benehcial, under this will, and that, of course, 
 Mr. Conkey, judge of probate, as an inhabitant of that town, takes 
 no such interest; that he is not prevented from taking jurisdiction 
 of the probate of this will ; and that no other probate court of the 
 commonwealth can take jurisdiction of it. 
 
 The decree of the probate court is reversed, and the case re- 
 mitted to that court, for further proceedings, in the probate of 
 said will, and the settlement of the said Oliver Smith's estate." 
 
 EDWARD LANGE v. CHARLES L. BENEDICT. 
 
 Court of Appeals of Nev^ York, 1878. 
 
 73 N. Y. 12. 
 
 The plaintiff brought an action against the defendant for false 
 imprisonment. From the complaint it appeared that the defendant 
 was judge of the District Court for the United States for the East- 
 ern District of New York ; that the defendant had been found guilty 
 of stealing mail bags, the property of the United States, and had 
 been sentenced by the defendant to pay a fine of $200 and to be 
 imprisoned for one year, although by the act of congress the pun- 
 ishment was a fine or imprisonment. The plaintiff paid the fine and 
 had undergone imprisonment for five days when the judge vacated 
 the sentence and resentenced the plaintiff to imprisonment for one 
 year. This resentence the Supreme Court of the United States held 
 unauthorized and on habeas corpus the plaintiff was discharged 
 
 ■'Great Chartc v. Kennington, 2 Str. ii59 (i743) ; Ut>t>er Dublin v. Ger- 
 mantoTJi'n. 2 Pall. (Pa.) 213 (i793 )- The fact that a judge is a property owner 
 and taxpayer does make him "peV-sonally mterested" m an action against the 
 county so as to entitle the plaintiff to a change of venue. ^rittam^v.^Monroe 
 County 214 Pa. 648 (1906 ). Accord: Cotnmonzvcalth v. Fletcher, 157 Mass. 
 irTi^2yron statutor>- grounds; Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 
 S76 (1894) ; Lazi'ton Rapid Trans. Co. v. La-a'ton, 31 Okla. 458 (1912). Contra, 
 Peck V Essex, 21 N. J. L. 656 (1847) ; Meyer v. .San Diego, 121 Cal. 102, 53 
 Pac. 434, 41 L. R. A. 762, 66 Am. St. 22 (1898). It has been held that where 
 the judicial power is confined to one judge, he may act, although interested, 
 if the necessity is imperative. Matter of Ryers, 72 N. Y. i (1878) ; Hill v. 
 IVells 23 Mass. 104 (1828) ; PhUadelphia v. Pox, 6 /| Pa. 160 ('1870') ; Forest 
 Coal Co V Doolittlc, 54 W. Va. 210, 46 J5. b. 23« (1903) ; State v. Houser, 122 
 Wis. 534, 100 N. W. 964 (1904) ; State v. Policy, 138 N. W. 300 (S. Dak. 
 1912).
 
 LANGE V. BENEDICT 23 
 
 from custody.-*^ To the complaint the defendant demurred on the 
 ground that the complaint did not state facts sufficient to constitute 
 a cause of action. The demurrer was sustained by the New York 
 Supreme Court and the plaintiff appealed to this court.-'' 
 
 FoLGER, J.: In our judgment, the question between the parties 
 is brought to what, in words at least, is a very narrow issue : Did 
 the defendant impose the second sentence as a judge; or, although 
 he was at the moment of right upon the bench, and authorized and 
 empowered to exercise the functions of a judge, was the act of re- 
 sentencing the plaintiff so entirely without jurisdiction, or so be- 
 yond or in excess of the jurisdiction which he then had as a judge, 
 as that it was an arbitrary and unlawful act of a private person? A 
 narrow issue, but not to be easily determined to the satisfaction of 
 a cautious inquirer. 
 
 There are not many topics in the law which have received more 
 discussion and consideration than that of the liability of a person 
 holding a judicial, or cjuasi judicial office, to an action at law, for an 
 act done by him while, at the same time, exercising his office. The 
 principles which should govern such action are, therefore, well 
 settled. The difficulty in satisfactorily disposing of a particular case 
 is, not in finding the rule of law upon which it is to be decided, but 
 in determining on which side of that .rule the facts of the case do lie. 
 
 The general rule, which applies to all such cases, and which is to 
 be observed in this, has been in olden times stated thus : Such as 
 are by law, made judges of another, shall not be criminally accused, 
 or made liable to an action for what they do as judges; to which the 
 Year Books (43 Edw., 3, 9; 9 Id., 4, 3) are cited in Floyd v. Baker 
 12 Coke 26). The converse statement of it is also ancient; where 
 there is no jurisdiction at all, there is no judge; the proceeding is as 
 nothing (Perkin v. Proctor, 2 Wilson, 382-384), citing the Marshal- 
 sea Case (10 Coke 65-76), which says: "Where he has no jurisdic- 
 tion, non est judex." It has been stated thus, also: No action will 
 lie against a judge, acting in a judicial capacity, for any errors 
 which he may commit, in a matter within his jurisdiction. {Gwynne 
 V. Pool, Lutv/., 290.) It has been, in modern days, carried some- 
 what further, in the terms of the statement: Judges of superior or 
 general jurisdiction are not liable to civil actions for their judicial 
 acts, even when such acts are in excess of their jurisdiction, and 
 are alleged to have been done maliciously and corruptly. {Bradley 
 v. Fisher, 13 Wall. 351.) 
 
 It is to be seen that in these different modes of stating the prin- 
 ciple, there abides a qualification. To be free from liability for 
 the act, it must have been done as judge, in his judicial capacity; it 
 must have been a judicial act. So it always remains to be deter- 
 mined, when is an act done as judge, in a judicial capacity. And 
 
 ^*Ex parte Lange, 85 U. S. 163 (1873). The Supreme Court held that the 
 judgment of the court having been executed so as to be a full satisfaction 
 of one of the alternative penalties the power of the court was ended. Clifford 
 and Strong, J. J., dissented. 
 
 ""The statement of facts is condensed from the opinion of the court, por- 
 tions of which are omitted. Reported below in 8 Hun (N. Y.) 362.
 
 24 TlIK COURT 
 
 this is the ditriculty whicli has most often been found in the use of 
 tliis rule, and wliich is present here; to determine when the facts 
 exist which call into play that qualification. 
 
 For it is plain that the fact that a man sits in the seat of justice, 
 though having a clear right to sit there, will not protect him in 
 every act which he may choose or chance to do there. Should such 
 an one, rightfully holding a court for the trial of civil actions, order 
 the head of a l)ystander to be stricken off, and be obeyed, he would 
 be liable. Thus, a person in the office of judge of the Ecclesiastical 
 Court in England, excommunicated one for refusing to obey an order 
 made by him, that he become guardian ad litem for an infant son, 
 and though the order was made in a matter then lawfully before the 
 court for adjudication, and of which he as judge had jurisdiction, 
 he was held liable to an action. (Beaurain v. Sir IVni. Scott, 3 
 Campb. 388.) He had not, as judge, jurisdiction of the person to 
 whom he addressed the order. On tlie other hand, one rightfully 
 holding a court for the trial of a criminal action fined and im- 
 prisoned a juror, for that he did not bring in a verdict of guilty 
 against one on trial for an offense, after the court had directed tlie 
 jury that such a verdict was according to the law and facts. The 
 juror was discharged from imprisonment on habeas corpus brought 
 in his behalf, and it was held that the act of fining and imprisoning 
 him was unlawful, inasmuch as there was no allegation of corrup- 
 tion or like bad conduct against the juror. The juror then brought 
 an action against him who sat as judge and made the order for tlie 
 fine and imprisonment, but took nothing thereby, for it was held 
 that the judge acted judicially, as judge, as he had jurisdiction of 
 the person of the juror, and jurisdiction of the subject-matter, to 
 wit: The matter of punishing jurors for misbehavior as such, and 
 that his judgment that the facts of that case warranted him in in- 
 flicting punishment was a judicial error to be avoided and set aside 
 in due course of legal proceedings, for which, however, he was not 
 personally liable. (Hammond v. Howell, Recorder of London, 2 
 Mod. 218; Bushell's Case, Vaughan Reps., 135.) So a judge of 
 Oyer and Termifier'was protected from indictment when he had 
 made entry of record that some were indicted for felony before him ; 
 whereas, in fact, they w^ere indicted for trespass only. (12 Coke 25.) 
 
 Thus it appears that the test is not alone that the act is done 
 while having on the judicial character and capacity, nor yet is it 
 alone that the act is not lawful. 
 
 We have seen, too, that the test is not that the act was in excess 
 of jurisdiction, or alleged to have been done with malice and cor- 
 ruptly ; for even if it is such an act, it does not render liable the 
 doer of the act, if he be a judge of a court of general or superior 
 authority. (Bradley v. Fisher, supra.y^ 
 
 *" Accord: Taylor v. Doremus, 16 N. J. L. 473 (1838) ; Pratt v. Gardner, 
 56 Mass. 63 (1848) ; Fray v. Blackburn, 3 B. & S. 576 (1863) ; Woodruff v. 
 Stewart, 63 Ala. 206 (1879) ; Anderson v. Gorrie, L. R. (1895) i Q. B. 668 
 (1894) ; Scott V. Fisliblate, 117 N. Car. 265 (1895) ; Webb v. Fisher, 109 Tenn. 
 701, 72 S. W. no, 60 L. R. A. 791, 97 Am. St. 863 (1902) ; Wyatt v. Arnot, 7 
 Cal. App. 221 (1907) ; Kruegel v. Cobb, 124 S. W. 723 (Tex. 1910) ; Casser-
 
 LANGE V. BENEDICT 2$ 
 
 We think it clear that there is no liabihty to civil action, if the act 
 was done "in a matter within his jurisdiction," to use the words of 
 Gwynne v. Pool (supra). Those words mean, that when the person 
 assumed to do the act as judge, he had judicial jurisdiction of the 
 person acted upon, and of the subject-matter as to which it was 
 done. Jurisdiction of the person is when the citizen acted upon is 
 before the judge, either constructively or in fact, by reason of the 
 service upon him of some process known to the law, and which has 
 been duly issued and executed. What is meant by jurisdiction of the 
 subject-matter we have had occasion to consider lately in Hunt v. 
 Hu7it (72 N. Y. 217). It is not confined within the particular facts, 
 which must be shown before a court or a judge, to make out a spe- 
 cific and immediate cause of action ; it is as extensive as the general 
 or abstract question, which falls within the power of the tribunal or 
 officer to act concerning. Our idea will be illustrated by a refer- 
 ence to Groenvelt v. Biirwell (i Ld. Raym. 454). There the de- 
 fendants, as censors of a college of physicians, had imposed pun- 
 ishment on the plaintiff for what they adjudged was malpractice by 
 him. He brought his action. They pleaded the charter of the col- 
 lege, giving them power to make by-laws for the government of all 
 practitioners in medicine in London, and to overlook them and to 
 examine their medicines and prescriptions, and to punish malprac- 
 tice by fine and imprisonment ; that they had, in the exercise of that 
 power, adjudged tlie plaintiff guilty of mala praxis, and fined him 
 twenty pounds, and ordered him imprisoned twelve months, nisi, etc. 
 It was held that the defendants had "jurisdiction over the person of 
 the plaintifi^, inasmuch as he practiced medicine in London; and 
 over the subject-matter, to wit, the unskillful administration of 
 physic. That is the language of Holt, C. J., in that case. And be- 
 cause the defendants had power to hear and punish, and to fine and 
 imprison, it was held that they were judges of record, and because 
 judges, not liable for the act of fining and imprisoning. (See also 
 Ackerly v. Parkinson, 3 Maul. & Selw. 411.) It is the general ab- 
 stract thing which is the subject-matter. The pov/er to inquire and 
 adjudge whether the facts of each particular case make that case a 
 part or an instance of that general thing — that power is jurisdiction 
 of the subject-matter. Thus in Hammond v. Howell {supra), the 
 defendant was saved from liability to civil action, inasmuch as he 
 he had as judge jurisdiction of the subject-matter of punishing 
 jurors for a misdemeanor upon the panel. He made an error in 
 deciding that the facts of that case made an instance of that subject- 
 matter. But the jurors were within his jurisdiction of their persons, 
 and he had jurisdiction of the subject-matter, and his error was a 
 judicial error; an act done quatenus judge; not an act as Howell, 
 the private person, though it was an act contrary to law, grievous 
 and oppressive upon the citizen. 
 
 high V. Malone, 50 Colo. 597 (1911) ; Broom v. Douglass, 57 So. 860 (Ala.) 
 (1912). Contra-/ Hollon v. Lilly, 100 Ky. 553, 18 Ky. L. 968, 38 S. W. 878 
 (1897); Willis V. Linn, 148 Ky. 841 (1912); Gault v. Wallis, 53 Ga. 675 
 (187s) semhle.
 
 26 TIIK COURT 
 
 Tlio iiKiuirv. then, at this stage of our consideration of the case is 
 this: Wliethor the defendant, sitting upon the bench of the circuit 
 court and being on that occasion de jure et de facto the circuit court, 
 and having as such jurisdiction of all persons by law within the 
 power of that court, and jurisdiction of all subject-matters within its 
 cognizance ; whether he had jurisdiction of the person of the plaintiff, 
 and of any subject-matter wherefrom he had authority to hear and 
 adjudge whether the facts in the case of the plaintiff', as then pre- 
 sented to him fell within any of those subject-matters. It is not the 
 inquiry whether the act then done as the act of the court was erron- 
 eous and illegal; that is but another form of saying whether it 
 could or could not be lawfully done as a court by the person then 
 sitting as the judge thereof. It is whether that court then had the 
 judicial ])ower to consider and pass upon the facts presented, and to 
 determine and adjudge that such an act based upon them would be 
 lawful or unlawfvd. 
 
 That the defendant, as that court, had jurisdiction of the person 
 of the plaintiff is manifest. He was before it on a return of a writ 
 of habeas corpus, sued out by him, and was produced in court by the 
 marshal to whom the writ was sent. He was in the custody of law 
 upon a judgment and sentence of that court, the validity of which he 
 was questioning, and seeking from that court a vacating and annull- 
 ing thereof. At least until the order for vacating it was made the 
 plaintiff was lawfully within the power of the court. 
 
 The court also had jurisdiction of the subject-matter. It might 
 by law indict and try persons charged v/ith stealing and appropriat- 
 ing mail bags; it might pass sentence upon them, when duly con- 
 victed, of fine or imprisonment; during the same term of the court 
 at which one sentence had been imposed, it might vacate it or mod- 
 ify it, as law and justice would require. {Ex parte Lange, i8 Wall. 
 163). If it had imposed a sentence greater than that prescribed by 
 law, it could vacate it and inflict one in accord with the law. If no 
 part of the invalid sentence imposed had been executed, it could va- 
 cate and inflict one different in kind or degree. {Ex parte Lange 18 
 Wall. 163; Miller v. Finkle, i Park. Cr. R., 374, and cases cited 
 there.) In England it has been held that at the same term the judg- 
 ment might be altered, and by reason of subsequent conduct of the 
 convicted person the punishment be increased. {Reg. v. Fitzgerald, i 
 Salk. 401.) And another sentence has been given after a portion of 
 the former one had been suffered. (Rex v. Price, 6 East, 323.) 
 The judgment, as expressed in the prevailing opinion in Ex parte 
 Lange {supra), is not in accord with those two cases, and we cite 
 them without expression of approval or otherwise. 
 
 This was the subject-matter — the general matter then before the 
 court. The particular matter or question presented was the sen- 
 tence of fine and imprisonment passed upon the plaintiff; was it 
 erroneous and unlau-ful in that it went beyond the limit of the law, 
 he having been some days in imprisonment under it, and having paid 
 a sum of money equal in amount to the fine, to the clerk of the court, 
 who in turn had paid it to an officer of the United States govern- 
 ment; was it lawful to vacate the sentence if in excess of the law;
 
 LANGE V. BENEDICT 27 
 
 if that sentence should be vacated, was it lawful, under the facts 
 of the case, to impose another sentence which should be in accord 
 with the statute — did all these things present a case for the exercise 
 of power, by virtue of the jurisdiction over the subject-matter? The 
 court, we have seen, had the jurisdiction last named; did it not also 
 have jurisdiction to adjudicate upon that state of facts? If it did 
 have it, and did adjudicate erroneously, was it not a judicial error 
 to be relieved from, by such writ as would bring it up for review, 
 rather than a wrong done personally to be answered for in a civil 
 action? Is not the person who iilled the office of judge and by his 
 presence on tlie bench made that court free from liability for that 
 adjudication, though the act done by him was erroneous and un- 
 authorized by law ? 
 
 It is true that the United States Supreme Court upon a certain 
 state of facts before it, and in a proceeding by certiorari to which 
 this defendant was not a party, and in which he was not heard by 
 that court, reached the conclusion that the second sentence of the 
 circuit court was pronounced without authority, and discharged the 
 plaintiff from his imprisonment thereunder. {Ex parte Lange, supra.) 
 In the prevailing opinion given in the case are repeated expressions 
 to the effect that the power of the circuit court to punish, further 
 than the first sentence, was gone; that its power to punish for that 
 offense was at an end when the first sentence was inflicted, and the 
 plaintiff had paid the $200 and laid in prison five days ; that its 
 power was exhausted ; that its further exercise was prohibited ; that 
 the power to render any further judgment did not exist; that its 
 authority was ended. 
 
 The opinion also says: "A judgment may be erroneous and not 
 void; and it may be erroneous because it is void. The distinctions 
 between void and voidable judgments are very nice, and they may 
 fall under the one class or the other, as they are regarded for differ- 
 ent purposes." We do not think that learned court would disregard 
 the reasoning of Howell's Case (supra) and others like unto it. 
 Yet in Buslinell's Case (supra), he was discharged on habeas cor- 
 pus, on the ground that Howell as judge had no power or author- 
 ity to fine or imprison him for the cause set up ; it was called "a 
 wrongful commitment" (i Mod. 184), as contrasted with "an er- 
 roneous judgment" (12 Mod. 381, 392) ; and yet when Howell was 
 called to answer in a civil action for the act, it was held that though 
 without authority it was judicial. In Bushnell's Case (i Mod, 119), 
 Hale, C. J., said : "The habeas corpus and the writ of error, though 
 it doth make the judgment void, doth not make the awarding of the 
 process void to that purpose," i. e., of an action against the judge, 
 "and the matter was done in a court of justice," he continued. So 
 is the comment upon that case. (Yates v. Lansing, 5 Johns 290.) 
 "It had jurisdiction of the cause because it had power to punish a 
 misdemeanor in a juror, though in the case before tlie court the 
 recorder made an erroneous judgment in considering the act of the 
 juror as amounting to a misdemeanor, when in fact it was no mis- 
 demeanor." (2 Mod. 218.) So in Ackerley v. Parkinson (supra) 
 the defendant was held protected though the citation issued by him
 
 2S THE COURT 
 
 was considered as a nullity; on the ground that the court had a gen- 
 eral jurisdiction over the subject-matter. 
 
 Let it be conceded, at this point that the law is now declared, 
 that the act of the defcntlant w^as without authority and was void, 
 yet it was not so plain as then to have been beyond the realm of 
 judicial discussion, deliberation and consideration, as is apparent 
 from the fact that four judges, other than the defendant, acting as 
 judges, have agreed with him in his view of the law. 
 
 He was, in fact, sitting in the place of justice; he was at the 
 very time of the act a court; he was bound by his duty to the public 
 and to the plaintiff to pass as such, upon the question growing out 
 of the facts presented to him, and as a court to adjudge whether 
 a case had arisen in which it was the demand of the law, that on the 
 vacating of the unlawful and erroneous sentence or judgment of the 
 court, anotlier sentence or judgment could be pronounced upon the 
 plaintiff. So to adjudge was a judicial act, done as a judge, as a 
 court; though the adjudication was erroneous, and the act based 
 upon it was without authority and void. Where jurisdiction over the 
 subject is invested by law in the judge, or in the court which he 
 holds, the manner and extent in which the jurisdiction shall be 
 exercised are generally as much questions for his determination as 
 any other involved in the case ; although upon the correctness of his 
 determination in those particulars, the validity of his judgment may 
 depend. {Ackerly v. Parkinson, supra.) For such an act, a person 
 acting as judge therein is not liable to civil or criminal action. The 
 power to decide protects, though the decision be erroneous (see 
 Garnett v. Farrand, 6 B. & C. 6ii). 
 
 There is anotlier view of this case. It is certain that the defend- 
 ant as the circuit court, had at first jurisdiction of the plaintiff, and 
 jurisdiction of the cause and the proceedings. That jurisdiction 
 continued to and including the pronouncing of tlie first sentence ; 
 nay, until and including the giving of the order vacating that sen- 
 tence. If it be admitted that at the instant of the utterance of that 
 order jurisdiction ceased, as is claimed by the plaintiff, on the 
 strength of the opinion in Ex parte Lange {supra), as commented 
 upon Ex parte Parks (93 U. S. R. 18), and that all subsequent to 
 that was corum non judice, and void; still it was so, not that the 
 court never had jurisdiction, but that the last act was in excess of 
 its jurisdiction. Thus in the opinion {Ex parte Lange, supra, p. 
 165) it was said that the facts very fairly raised the question 
 whether the circuit court in the sentence which it pronounced, and 
 under which the prisoner was held, had not exceeded its powers. 
 (See, also, p. 174.) We think, that the w^hole effect of the opinion 
 is, not that the court had no jurisdiction, no power over the pris- 
 oner and the case, but that it had no authority to impose further 
 punishment. 
 
 This act of the defendant was then one in excess of, or beyond 
 the jurisdiction of the court. And though when courts of special 
 and limited jurisdiction exceed their powers, the whole proceeding 
 is coram non judice, and void, and all concerned are liable, tliis has 
 never been carried so far as to justify an action against a judge of a
 
 LANGE V. BENEDICT 29 
 
 superior court, or one of general jurisdiction, for an act done by 
 him in a judicial capacity. {Yates v. Lansing, supra; Bradley v. 
 Fisher, supra; Randall v. Brigham, 7 Wall. 523.)^^ 
 
 In the case last cited it is said of judges of superior courts: 
 They are not liable to civil actions for their judicial acts, even when 
 such acts are in excess of their jurisdiction, unless perhaps they are 
 done maliciously or corruptly. (Pp. 536, 537.) And in the other 
 cases a distinction is observed and insisted upon between excess of 
 jurisdiction and a clear absence of all jurisdiction over the subject- 
 matter. And to the same effect is this : "For English judges, when 
 they act wholly without jurisdiction * * * have no privilege." 
 (Per Parke, B ; Calder v. Halket, 3 Moore P. C. C. 28, 75.) 
 
 Now it may be conceded that the circuit court is not a court of 
 general jurisdiction; that in a sense it is a court of limited and spe- 
 cial jurisdiction (Kempe's Lessee v. Kennedy, 5 Cranch 173) ; in- 
 asmuch as it must look to the acts of congress for the powers con- 
 ferred. But it is not an inferior court. It is not subordinate to all 
 other courts in the same line of judicial function. It is of inter- 
 mediate jurisdiction between the inferior and the Supreme Courts. 
 It is a court of record ; one having attributes and exercising func- 
 tions, independently of the person of the magistrate designated gen- 
 erally to hold it; per Shaw, C. J. (Ex parte Gladhill, 8 Mete. 168, 
 170) ; it proceeds according to the course of the common law ; it 
 has power to render final judgments and decrees which bind the 
 persons and things before it, conclusively, in criminal as well as civil 
 cases, unless revised on error or appeal (Grignon's Lessee v. Astor, 
 2 How. (U.S.) 341; see Ex parte Tobias Watkins, 3 Pet. 193). 
 "Many cases are found wherein it is stated generally that when an 
 
 "In Piper v. Pearson, 68 Mass. 120 (1854), it is said, per Bigelow, J.: 
 "The common law affords to all inferior tribunals and magistrates complete 
 protection in the discharge of their official functions so long as they act within 
 the scope of their jurisdiction, however false and erroneous may be the con- 
 clusions and judgments at which they arrive. But on the other hand, if they 
 act without any jurisdiction over the subject-matter; or if, having cognizance 
 of a cause, they are guilty of an excess of jurisdiction; they are liable in 
 damages to the party injured by such unauthorized acts. In all cases there- 
 fore where the cause of action against a judicial officer, exercising only a 
 special and limited authority, is founded on his acts done colore officii.^ the 
 single inquiry is whether he has been guilty of an excess of jurisdiction." 
 Accord: Clarke v. May, 68 Mass. 410, 61 Am. Dec. 470 (1854); Miller v. 
 Searle, 2 W. Bl. 1141 (1776) ; Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102 
 (1821) ; Blood V. Sayre, 17 Vt. 609 (1843) ; Watcrville v. Barton, 64 Maine 
 321 (1874); Hanna v. Slevin, 8 Pa. Sup er, _Ct._50Q- (1898) semble; Stephens 
 v. Wilson, iisTCy. 27 (1903) ; Duffin v. Summerville, 9 Ala. App. 573 (1913)- 
 But in Thompson v. Jackson, 93 Iowa 376, 61 N. W. 1004, 27 L. R. A. 92 
 (1895), the rule that protects superior judges exceeding their authority and 
 refuses the same protection to inferior judges is described as "unreasonable, 
 unjust and illogical," and in other jurisdictions the tendency is to hold that a 
 judge of an inferior court acting in good faith without malice in excess of 
 his jurisdiction ought not to be civilly liable. Brooks v. Mangan, 86 Mich. 
 576, 49 N. W. 633, 24 Am. St. J37 (1891) ; Bell v. McKinney, 63 Miss. 187 
 (1885) ; Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138 
 (1891) ; Robertson v. Parker, 99 Wis. 6^2, 7=^ N. W. 423 (i8q8) ; Calhoun v. 
 Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. 254 (1898) ; Bow- 
 man V. Seaynan, 152 App. Div. (N. Y.) 690 (1912).
 
 ,^0 THE COURT 
 
 interior court exceeds its jurisdiction its proceedings are entirely 
 void and atTord no protection to the court, the i)arty, or the officer 
 who executes its process. I apprehend that it should be quahfied 
 when the subject-matter of the suit is within the jurisdiction of the 
 court, and the alleged defect of jurisdiction arises from some other 
 cause." (jMarcy, J.; Savacool v. Boughton, 5 Wend. 172.) How 
 much more so when the court is not inferior? 
 
 For these reasons we are of the opinion that the defendant is 
 protected by his judicial character from the action brought by the 
 plaintiff. We have not gone into a written consideration of the 
 matters urged by the learned and zealous counsel for the plaintiff in 
 his very elaborate and exhaustive brief and printed argviment. We 
 have read them with great interest and benefit. To follow them in 
 an opinion, and to comment upon all the cases cited and positions 
 taken, would be to write a treatise upon this subject. That would be 
 no good reason why they should not be followed and discussed, if 
 the requirements of the case demanded it. The case turns upon a 
 question more easily stated than it is determined: Was the act of 
 the defendant done as a judge? Our best reflections upon it, aided 
 by the reasonings and conclusions of many more cases than w-e have 
 cited, has brought us to the conclusion that as he had jurisdiction of 
 the person and of the subject-matter, and as his act was not with- 
 out the inception of jurisdiction, but was "^ne~ no more than in 
 excess of or beyond jurisdiction, tlie act Avas judicial. We are not 
 unmindful of the considerations of the protection of the liberty of 
 the person, and of the staying of a tendenc}^ to arbitrary exercise of 
 power, urged with so much eloquence by the learned and accom- 
 plished counsel for the appellant. Nor are v.e of the mind of the 
 court in 2 Mod. (218, 220), that "these are mighty words in sound, 
 but nothing to the matter." They are to the matter, and not out of 
 place in such a discussion as this. Nor have we been disposed to 
 outweigh those considerations, wath that other class, which sets 
 forth the need of judicial independence, and of its freedom from 
 vexation on account of official action, and of the interest that the 
 public have therein. (See Bradley v. Fisher, supra; Tajfee v. 
 Doivns, in note to Colder v. Halket, 3 Moore P. C. C. 28, 41, 51, 52.) 
 These are not antagonistic principles ; they are simply countervail- 
 ing. As with all other rules which act in the affairs of men, prepon- 
 derance may not be fondl}^ given to one to the disregard of the 
 other ; each should have its due weight yielded to it, for thus only is 
 a safe equipoise reached. 
 
 We have arrived at our decision upon w^hat we hold to be long 
 and well-established principles applied to the peculiar facts of this 
 interesting case. 
 
 The judgment of the general term should be affirmed. 
 
 All concur, except Andrews, J., absent. 
 
 Judgment affirmed. "*- 
 
 'Accord: Boss v. Ritienhonse, 2 Pall. (Pa.) 16 (1792), s. c. i Ye ates 
 _ Plielph V. Sill, I JJay (ConnJ 315 ( i<So4) ; Yates v. Lansing, 9 Johns. 
 '• Y.) 395 (1811) ; Dnswell v. Impey, i B. & C. 163 (1823) ; Garnett v. Fcr- 
 rand, 6 B. & C. 611 (1827) ; Tompkins v. Sands, 8 Wend. (N. Y.) 462, 24
 
 LORD V. VEAZIE 31 
 
 NATHANIEL LORD v. JOHN W. VEAZIE. 
 
 Supreme Court of the United States, 1850. 
 
 8//0K'. ({/. S.) 251. 
 
 This case was brought up by writ of error from the Circuit Court 
 of the United States for the District of Maine. 
 
 It appeared that in 1842 the Bangor and Piscataquis Canal and 
 Railroad Company executed a deed to the City Bank at Boston by 
 which the bank claimed the entire property of the company. By 
 an act passed in 1847 the company was reorganized and the bank 
 claimed to be sole proprietors under the new charter. John W. 
 Veazie, a shareholder in the original company, claimed that control 
 was granted to the stockholders. In August, 1848, Veazie and Lord 
 executed an instrument purporting to be a conveyance from Veazie 
 to Lord of 250 shares of the company which Veazie covenanted to 
 warrant and defend, and in September, 1848, Lord brought this ac- 
 tion of covenant and a statement of facts agreed upon under which 
 the opinion of the court was to be taken. In October, 1848, judg- 
 ment pro forma was given for defendant at the request of the par- 
 ties in order that the question might be brought before this court. 
 Mr. Moor on his own account as counsel for the City Bank moved 
 to dismiss the appeal on the ground that it was a fictitious case con- 
 trived to settle legal questions upon which he, Moor, and the City 
 Bank had a large amount of property depending. A number of affi- 
 davits were filed in support of and against the motion."" 
 
 Taney, C. J. : The court is satisfied, upon examining the record 
 in this case, and the affidavits filed in tlie motion to dismiss, that the 
 contract set out in the pleadings was made for the purpose of insti- 
 tuting this suit, and that there is no real dispute between the plain- 
 tiff and defendant. On the contrary, it is evident that their interest 
 in the question brought here for decision is one and the same, and 
 not adverse ; and that in these proceedings the plaintiff and defend- 
 ant are attempting to procure the opinion of this court upon a ques- 
 tion of law, in the decision of which they have a common interest 
 opposed to that of other persons, who are not parties to this suit, 
 who had no knov/ledge of it while it was pending in the circuit 
 
 Am. Dec. 46 (1832) ; Dicas v. Brougham, i M. & Rob. 309 (1833) ; Morrison 
 V. McDonald, 21 Maine 850 (1842) ; Stone v. Graves, 8 Mo. 148 (1843) ; Bailey 
 V. Wiggins, 5 Harr. (Del.) 462, 60 Am. Dec. 650 (1854) ; Burnham v. Stevens, 
 33 N. H. 247 (1856) ; Lancaster v. Lane, 19 111. 242 (1857) ; Way v. Townsend, 
 4 Allen (Mass.)' 114 (1862) ; Scott v. Stansfield, L. R. 3 Exch. 220 (1868) ; 
 Pap pa V. Rose, L. R. 7 C. P. 32 (1871) ; Bnsleed v. Parsons, 54 Ala. 393, 25 
 Am. Rep. 688 (1875) ; s. c. 25 Am. Rep. 688, note; Jones v. Brown, 54 Iowa 
 74, 6 N. W. 140, 37 Am. Rep. 185 (1880) ; Grove v. VanDuyn, 44 N. J. L. 654, 
 43 Am. Rep. 412 (1882) ; Rudd v. Darling, 64 Vt. 456, 25 Atl. 479 (1892) ; 
 Marks V .Sullivan, 9 Utah 12, 33 Pac. 224 (1893) ; Webb v. Fisher, 109 Tenn. 
 701, 72 S. W. no, 60 L. R. A. 791, 97 Am. St. 863 (1902) ; Kriigel v. Murphy, 
 126 S. W. 343 (Tex. 1910) ; AlrAia v. Johnson, 231 U. S. 106 (1913)- 
 
 " The statement of facts is abridged and the arguments of counsel 
 omitted.
 
 32 Tin; COURT 
 
 court, and no opportunity of being heard there in defense of their 
 rights. And their conduct is the more objectionable, because they 
 have brought up the cjuestion upon a statement of facts agreed on 
 between themselves, without the knowledge of the parties with 
 whom they were in truth in dispute, and upon a judgment pro forma 
 entered by their mutual consent, without any actual judicial decision 
 by the court. It is a question, too, in which it appears that property 
 to a very large amount is involved, the right to which depends on 
 its decision. 
 
 It is proper to say that the counsel who argued here the motion 
 to dismiss, in behalf of the parties to the suit, stand entirely ac- 
 quitted of any participation in the purposes for which these pro- 
 ceedings were instituted; and indeed could have had none, as they 
 were not counsel in the circuit court, and had no concern with the 
 case until after it came before this court. And we are bound to 
 presume that the counsel who conducted the case in the court below 
 were equally uninformed of the design and object of these parties; 
 and that they would not knowingly have represented to the court 
 that a feigned controversy was a real one. 
 
 It is the office of courts of justice to decide the rights of persons 
 and of property, when the persons interested can not adjust them 
 by agreement between themselves, — and to do this upon full hear- 
 ing of both parties. And any attempt, by a mere colorable dispute, 
 to obtain the opinion of the court upon a question of law which a 
 party desires to know for his own interest or his own purpose, when 
 there is no real and substantial controversy between those who ap- 
 pear, as adverse parties to the suit, is an abuse which the courts of 
 justice have always reprehended, and treated as a punishable con- 
 tempt of court. 
 
 The suit is spoken of, in the affidavits filed in support of it, as 
 an amicable action, and the proceeding defended on that ground. 
 But an amicable action, in the sense in which these words are used 
 in courts of justice, presupposes that there is a real dispute between 
 the parties concerning some matter of right. And in a case of this 
 kind it sometimes happens, that, for the purpose of obtaining a deci- 
 sion of the controversy, without incurring needless expense and 
 trouble, they agree to conduct the suit in an amicable manner, that 
 is to say, that they will not embarrass each other with unnecessary 
 forms of technicalities, and will mutually admit facts which they 
 know to be true, and without requiring proof, and will bring the 
 point in dispute before the court for decision, without subjecting 
 each other to unnecessary expense or delay. But there must be an 
 actual controversy, and adverse interests. The amity consists in the 
 manner in which it is brought to issue before the court. And such 
 amicable actions, so far from being objects of censure, are always 
 approved and encouraged, because they facilitate greatly the admin- 
 istration of justice between the parties.''* The objection in the case 
 before us is, not that the proceedings were amicable, but that there is 
 
 ^Dubuque & P. R. Co. v. Litchfield, 23 How. (U. S.) 66, 16 L. ed. 500 
 (1859).
 
 LORD V. VEAZIE 33 
 
 no real conflict of interest between them ; that the plaintiff and de- 
 fendant have the same interest, and that interest adverse and in con- 
 flict with the interest of third persons, whose rights would be seri- 
 ously affected if the question of law was decided in the manner that 
 both of the parties to this suit desire it to be. 
 
 A judgment entered under such circumstances, and for such pur- 
 poses, is a mere form. The whole proceedings was in contempt of 
 the court, and highly reprehensible, and the learned district judge 
 who was then holding the circuit court, undoubtedly suffered the judg- 
 ment pro forma to be entered under the impression that there was 
 in fact a controversy between the plaintiff and defendant, and that 
 they were proceeding to obtain a decision upon a disputed question 
 of law, in which they had adverse interests. A judgment in form, 
 thus procured, in the eye of the law is no judgment of the court. 
 It is a nullity, and no writ of error will He upon it. This writ is, 
 therefore, dismissed.^^ 
 
 ^^ There must be a real controversy presented to the court. Abstract or 
 fictitious questions will not be decided. Coxe v. Phillips, Lee (Tenn.) 237 
 (1736) ; Da Costa v. Jones, Cowp. 729 (1778) ; In re Elsau, 3 L. J. (O. S.) 
 K. B. 75 (1824) ; Glasgow N. Co. v. Iron Ore Co., L. R. (1910) App. Cas. 293; 
 Smith V. Ciidworth, 24 Pick. (Mass.) 196 (1837) ; Brcivington v. Lozve, i 
 Ind. 21, 48 Am. Rep. 349 ( 1848) ; Berks v. Jones. 21 Pa. 413 ( 181:^) ; Willard's 
 Appeal, 65 Pa. St. 265 (1870) ; Murphy v. Railroad, no Mass. 465 (1872) f 
 Liille V. Ihorne, 93 'JSl . Car. 69 (1885) ; Lincoln v. Aldrich, 141 Mass. 342, 5. 
 N. E. 517 (1886) ; Patter's Estate. 4 Pa. D. R. ^20 C i8q^) ; Scott v. Sheehan, 
 145 Cal. 691, 79 Pac. 353 (1905). In Mills v. Green, 159 U. S. 651, 40 L. ed. 
 293 (1895), it is said, by Gray, J.: 
 
 "The duty of this court, as of every other judicial tribunal, is to decide 
 actual controversies by a judgment which can be carried into effect, and not 
 to give opinions upon moot questions or abstract propositions, or to declare 
 principles or rules of law which can not affect the matter in issue in the 
 case before it. It necessarily follows that when, pending an appeal from the 
 judgment of a lower court, and without fault of the defendant, an event 
 occurs which renders it impossible for this court, if it should decide the case 
 in favor of the plaintiff, to grant him any effectual relief whatever, the court 
 will not proceed to a formal judgment, but will dismiss the appeal." Accord: 
 Wilson & Co. V. Russell, 40 Iowa 697 (1875) ; People v. Troy, 82 N. Y. 575 
 (1880) ; State v. Porter, 58 Iowa 19, 11 N. W. 514 (18S2) ; Cheong Ah Moy 
 v. United States, 113 U. S. 216, 28 L. ed. 983 (1884) ; Flanagan v. Central 
 Lunatic Asylum, 79 Va. 554 (1884); Chicago, R. I. & P. R. Co. v. Dey, 76 
 Iowa 278 (1888); People v. Squire, no N. Y. 666 (1888); Gloucester v. 
 Greene, 45 N. J. Eq. 747, 18 Atl. 81 (1889) ; State v. Board of Comrs. Grant 
 County, 153 Ind. 302 (1899) ; Watkins v. Huff, 94 Tex. 631 (iQoi) ; Tampa 
 Gas Co. V. Tampa, 44 Fia. 813, 2?> So. 465 (1902) ; Jones v. Montague, 194 
 U. S. 147, 48 L. ed. 913 (1904) ; Hotel Co. v. Merchants Ice Co., 41 Wash. 
 620, 84 Pac. 402 (1906) ; McDaniel v. Htirt, 88 Miss. 769, 92 Miss. 197, 41 
 So. 381 (1906) ; Southern P. T. Co. v. Interstate Commerce Comm., 219 U. S. 
 498 (loio) : Reichard's License, 4.S Pa. Super_. Ct. 606 (1911) ; C omm. v. 
 C airns. 46 Pa. Super. Ct. 06 (lOi iT 
 
 In Brozvn v. Leeson, 2 H. Bl. 43 (1792), an action was brought on a wager 
 to determine the number of ways of throwing seven and eleven with two dice. 
 Lord Loughborough struck the case off the list, and was sustained b}' the 
 court in banc. 
 
 In Faust v. Cairns, 242 Pa. 15 (1913) , an appeal was taken from an order 
 refusing an mj unction to restram the board of health from maintaining a 
 quarantine. The quarantine was removed three months before the appeal 
 was argued. Appeal dismissed. 
 
 3 — Civ. Proc.
 
 CHAPTER II. 
 
 Parties. 
 
 SECTION I. IN GENERAL. 
 
 "In life, liberty and estate, every man who hath not forfeited 
 them, hath a property and right which the law allows him to defend ; 
 and if it be violated, it gives an action to redress the wrong, and to 
 punish the wrong doer." Thomas v. Sorrell, Vaughan 380 (1668).^ 
 
 "The word party is unquestionably a technical word and has a 
 precise meaning in legal parlance. By it is understood he or they 
 by or against whom a suit is brought, whether at law or in equity ; 
 the party plaintiff or defendant, whether composed of one or more 
 individuals, and whetlier natural or legal persons ; they are parties 
 in the writ, and parties on the record, and all others who may be 
 affected by the writ indirectly or consequentially are persons inter- 
 ested, but not parties." Per Parker, C. J., in Merchants' Bank v. 
 Cook, 4 Pick. 405 (1826). 
 
 MARY J. ASHBY v. JOSEPH S. ASHBY. 
 X Supreme Court of Louisiana, 1887. 
 
 39 La. Ann. 105. 
 
 Appeal from the Civil District Court for the parish of Orleans. 
 
 Todd, J. : This is a suit instituted by plaintiff, claiming to be a 
 judgment creditor of the defendant Joseph H. Ashby, to annul a 
 mortgage executed by him in favor of his children — co-defendants 
 — which is. charged to be fraudulent and intended to secure an un- 
 just claim against him in their favor to the prejudice of the plain- 
 tiff's rights. The defendant excepted on the ground that the petition 
 disclosed no cause of action. 
 
 From a judgment in favor of the plaintiff annulling the mort- 
 gage assailed, the defendants have taken this appeal. 
 
 It appears from the pleadings and record : 
 
 That the plaintiff has no moneyed judgment against the defend- 
 ant Joseph H. Ashby, on the faith of which she seeks the annull- 
 ment of the mortgage. This judgment, which is referred to in the 
 petition, is not a judgment in favor of the plaintiff, but one in favor 
 of her children, to whom she was at one time tutrix. ^ 
 
 ^"In this state any person of sound mind, of lawful age and under no 
 restraint or legal disability, has the legal capacity to sue, although it may 
 ultimately appear that he has no cause of action." Hunt v. Monroe, 32 Utah 
 428 (1907). 
 
 • A woman appointed to the office of tutor, by the civil law, is one who has 
 the care of the person and property of a minor. 
 
 35
 
 36 PARTIES 
 
 It further aiipcars that, when this suit of nulhty was instituted, 
 these children had attained their majority, and one of them had mar- 
 ried, had children and died. 
 
 It is not alleged or proved that the plaintiff ever acquired from 
 her children this judgment or any right thereto, and the parties 
 owning the judgment are not parties to the suit, or in any matter 
 represented tlierein, but the plaintiff sues alone and in her personal 
 capacity. 
 
 It follows, therefore, that plaintiff has instituted and prosecuted 
 a suit in which she has no personal interest whatever, and in Avhich 
 she does not represent the real parties in interest. 
 
 /\n action can only be brought by one having a real and actual 
 interest which he pursues. C. P., art. 15; Corral & Co. v. Towboat 
 Co., 37 Ann. 803.^ 
 
 Judgment reversed. 
 
 JOHN McELHANON v. JOHN McELHANON 
 Assignee, Etc., for the Use of Thomas J. Le Compte. 
 
 Supreme Court of Illinois, 1872. 
 
 63 ///. 457. /^ 
 
 Writ of error to the Circuit Court of Washington County. 
 McAllister, J : John McElhanon instituted a suit in chancery 
 against James Hughes, and applied for an injunction. He was re- 
 
 ' "The rule, I think, must be regarded as fundamental, that no person can 
 maintain an action respecting a subject-matter, in respect to which he has no 
 interest right or duty, either personal or fiduciary." Per Van Fleet, V. C, in 
 Baxter' Exr. V. Baxter, 43 N. J. Eq. 82, 10 Atl. 114 (1887). Accord: Miirray 
 V Webster, 5 N. H. 391 (1831) ; Qajuphell v __GaIbreaih, 5 Watt3_iTaJ_423 
 ( 1836) ; Fiilham v. McCarthy, i H. L. C. 703 ( 1848) ; Dix v. Mercantile Ins. 
 Co., 22 111. 272 (1859); Attorney-General v. Telegraph Co., 30 Bevan 287 
 (1861) ; Niederhans v. Heldt, 27 Ind. 480 (1867) ; J (inns v Gordon. 124 Pa. 
 263, 16 Atl. 862 (1889) ; Brock v. Rogers, 184 Mass. 54S, t>9 in- i^- 334 (1904) ; 
 "Kvng V. Tyler, 6 Pennew. (Del.) 287 (1907) ; Clark v. Anderson, 103 Mame 
 134 (1907). 
 
 If however, an interest in the plaintiff is conceded, his motive in suing 
 is immaterial. ^[asely.^PiJtsburg, i37_Pa. 548 (18903 ; Brockman v. Creston, 
 79 Iowa 587 {i^oYTEggersv. Newark, 77^1- L- 198 (1908). 
 
 A plaintiff must show some injury peculiar to himself beyond that suf- 
 fered by the public at large. Winterbottom v. Lord Derby, L. R. (1866) 2 
 Exch. 316. And, ordinarily, he is not authorized to bring an individual action 
 to redress some wrong against the community, Doolittle v. Broome County 
 Supervisors, 18 N. Y. 155 (1858) ; Buck Mountain Coal Co. v. Lehigh Navi- 
 gation Co. , \o P a. 01 (1865) ; Kennedy v. Consumers Gas Co., 142 Alass. 91 
 {T^^JX^eorgeTo^n v. Alexandria Canal Co., 12 Pet. (U. S.) 91 (1838). But 
 such authority may be conferred by legislation. Hatvthorn v. Natural Car- 
 bonic Gas Co., 194 N. Y. 326 (1909) ; and citizens and tax payers may main- 
 tain a bill in equity to restrain public officers from acts in violation of the 
 law and constitution. 2 uil'ple v. Pittsb urg, 212 Pa. ^5^ ( J 905) ; Kircher v. 
 Pederson, 117 Wis. 68 (1903 ) . A civil~action "can notbe maintained in the 
 name of the state to redress a purelv private wrong. Attorney-General v. 
 Salem, 103 Mass. 138 (1869) ; People v. Booth, 32 N. Y. 397 (1865) ; State v. 
 Parkville & G. R. Co., 32 Mo. 496 (1862).
 
 STEAMBOAT BURNS 37 
 
 quired to give a bond to Hughes in the penal sum of $500, with 
 James M. McElhanon as his security. The bond was given, and John 
 McElhanon, averring that he is the assignee of Hughes in bank- 
 ruptcy, brings debt upon that bond, against himself and surety for 
 the use of Thomas J. Le Comte. The default of defendant below 
 was entered and plaintiff's damages assessed at $50, whereupon 
 judgment was rendered in favor of plaintiff, for debt, $500 to be 
 discharged upon payment of the damages. The case was brought 
 to this court by writ of error, and the principal error assigned is the 
 insufficiency of the declaration. 
 
 Chitty says that "it is, a n answer to an action that a party is l e- 
 gall: ^ interested in each side of t he question. A party can not be^ 
 botli plaintiitandjkjjgjadanj ln~an"ACti_Qji7^ i Chitty, PI. 40. ~1 
 
 "^ ' This rule will operate'" altliough the party appears on one side 
 in his personal and on tJie other in his official character. Pearson v. 
 Nesbitt, I Dev. 315, 5 ib. 288. 
 
 The judgment of the court belov/ is reversed.* 
 
 STEAMBOAT BURNS. 
 
 "/ Supreme Court of the United States, 1869. 
 
 9 Wall. (U. S.) 237. 
 
 These were two cases brought before the court by what pur- 
 ported to be writs of error to the Supreme Court of Missouri. The 
 writ in tlie first case referred to a judgment in that court in a suit 
 "between the steamboat Burns, her tackle, etc., appellant, and James 
 
 *At law the same person can not be both plaintiff and defendant in the 
 same suit. Mainwaring v. Newman, 2 Bos. & P. 120 (1800) ; Holmes v. Hig- 
 gins, I B. & C. 74 (1822) ; Eastman v. Wright, 23 Mass. 196 (1826) ; Portland 
 Bank V. Hyde, 11 Maine 196 (1834) ; Chandler v. Shehan, 7 Ala. 251 (1845) ; 
 Mahan v. Sherman, 7 Blackf. (Ind.) 378 (1845); Trustees of Methodist 
 Church V. Stezvart, 27 Barb. (N. Y.) 553 (1858) ; Price i. Spence r 7 Phda^ (Pa.) 
 179 (1870) ; Brown v. Mann, 71 Cal. 192, 12 Pac. 51 (1886) ; Wilson v. Bene- 
 dict, 90 Mo. 208, 2 S. W. 283 (1886) ; Byrne v. Byrne, 94 Cal. 576 (1892) ; 
 Szveetland v. Porter, 43 W. Va. 189 (1897) ; Oliver v. Oliver, 178 111. 527, 53 
 N. E. 303 (1899) ; Tavlor v. Thompson, 176 N. Y. 168, 68 N. E. 240 (1903) ; 
 Medlin v. Simpson, 144 N. Car. 397 (1907)- The remedy is in equity. Cole v. 
 Reynolds, 18 N. Y. 74 (1858) ; Price v . S pencer gV h \\2i. (Pa.) 281 Q 873) ; Coop- 
 er V. Nelson, 38 Iowa 440 ( 1874) . TfiFcase of firms having common members is 
 now generally covered by statutes, e. g., Pa. act, of April 14, 1838, P. L. 457; 
 Hall V. hnan n. 34 Pa. ^-^i (i8=;q) : a nd in England by the rules of court under 
 the Judicature Act of 1873, Order 48a, rule 10. 
 
 It has been held no bar to a recovery that one of several defendants has 
 become possessed of a right of action prosecuted agaitisthim and his co- 
 defendants, unless his name appears on record both as plaintiff and defendant. 
 Blanchard v. Ely, 21 Wend. (N. Y.) 342 (1839). See also Pringle v. Pringle, 
 130 Pa. 565 (1890). 
 
 The authorities differ as to whether a plaintiff can summon himself as 
 garnishee. Compare Graigher v. Notnagel, i Peters C. C. (U. S.) 245 (1816) ; 
 Cphh V Nnnemaker. 78 Pa. 50.1 (1875) ; Lyman v. Wood, 42 Vt. 113 (1869) ; 
 Harris v. Ludlam, 2 H. Bl. 3^2 (1794), with Belknap v. Gihhens, 54 Mass. 
 471 (1847) ; Hoag v. Hoag, 55 N. H. 172 (1875).
 
 38 TARTIES 
 
 Reynolds, and James Aiken, resi)ondcnts and appellees," in which 
 "a manifest error hath hap[)encd, to the great damage of the said 
 steamboat, her tackle, etc., as by her complaint ap])ears." The cita- 
 tion made the same recital. The writ and citation in the second case 
 varied from this only in the names of the defendants in error. ° 
 -^^ Miller, ].: It is believed to be the first time that anything but 
 \ a human being, or an aggregation of human beings, called a corpora- 
 /tlon or association, has attempted to bring a writ of error or appeal 
 in this court. 
 
 It is said in support of the writ that the proceeding below was 
 in roll against the steamboat by name, and that as it was so con- 
 ducted through all the state courts it should be so here. 
 
 There is notliing in tlie essential nature of proceedings in rem 
 which justifies or requires this. Whenever the res is seized in ad- 
 miralty proceedings proper, or in revenue or in other proceedings 
 partaking of that character, the property is condemned and sold, 
 and with the distribution of the proceeds the case ends, unless some 
 one appears in court as claimant either of the res or its proceeds.® 
 When a claimant appears he becomes a party to the proceedings, 
 and may defend, take an appeal, or writ of error, or adopt any other 
 proceeding that a party properly before the court may be entitled to. 
 It is true that in placing such cases on the dockets of our courts, 
 and in the reports of our decisions, the name of the vessel or thing 
 seized is often retained; but in all cases where any defensive action 
 is taken, some person must appear and claim an interest or a right 
 to be heard on account of his relation to the property. 
 "> If any person or corporation whom this court can recognize as a 
 I legal entity, capable of sustaining a suit in this court, has an inter- 
 est in such a controversy, that party must connect himself with the 
 case in such a manner as to enable himself to assert his rights here. 
 It can not be done in the name of a steamboat.'^ 
 
 ° Part of the statement of facts and opinion of the court are omitted. 
 
 "Scott V. Shearman, 2 W. Bl. 977 (1775) ; State v. One Bottle of Brandv, 
 43 Yt. 297 (1871). 
 
 ' The parties to an action must have legal entities either as real persons 
 or as artificial persons authorized by law to sue or be sued. White v. Road 
 District, 9 Iowa 202 (1859) ; Steamboat Pcmhinaw v. Wilson, 11 Iowa 479 
 (1861) ; Mexican Mill v. Jellow Jacket M. Co., 4 Nev. 40, 97 Am. Dec. 510 
 (1868) ; Western and Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774, 
 50 S. E. 978 (1905) ; Nelson v. Atlantic Coast Line Relief Department, 147 
 N. Car. 103 (1908) ; Hill v. Armour Fertilizer Works, 80 S. E. 294 (Ga. Aop. 
 1913). Compare Steamboat Kentucky v. Hine, 1 Greene (Iowa) 379 (1848) ; 
 Doe V. Penfield, 19 Johns. N. Y. 308 (1812) ; Clark Bro. v. Wychc, 126 Ga. 
 24 (1906). 
 
 Parties to an action must be designated by name not merely by descrip- 
 tion. Kountzv. Brown, 16 B. Mon. (Ky.) 577 (1855). Thus, a suit against an 
 "Estate" is not a suit with a real defendant. Estate of Columbus v. Monti, 6 
 Minn. 568 (1861) ; Knox v. Greenfields' Estate, 7 Ga. App. 305 (1910). At the 
 common law the true Christian name of the party was required. Shadgett v. 
 Clipson, 8 East. 328 (1807) ; Gardner v. Kraft, 52 How. (N. Y.) 499 (1877) ; 
 Anderson v. //orw, 23 Abbotts N. Cas. (N. Y.) 475 (18S9); Parks v. Tolman, 
 113 Mo. App. 14 (1905). A mere misnomer is not fatal but may be cured by 
 amendment. Horba ch v. K nox. 6 Pa. xjj (1847); Welch v. Hull, 72, Mich. 
 
 47 (ir- 
 
 In some jurisdictions where the plaintiflF is ignorant of the defendants'
 
 KARGES FURNITURE CO. V. AMALGAMATED, &C., UNION 39 
 
 An examination of the records in these cases shows that Adolph 
 Heinecke did in the inferior court claim to be the owner, and de- 
 fended the suit in the name of the steamboat. He Hkewise made 
 affidavit that he was the owner, and gave bond to enable him to 
 appeal to the Supreme Court of that state. But instead of taking the 
 appeal in his own name he took it in the name of the steamboat. We 
 are of opinion that by a liberal construction of the record he may be 
 so far regarded as claimant and party to the record as to enable him 
 to bring a writ of error to this court in his own name if he shall be 
 so advised. The present writs are dismissed. 
 
 A 
 
 KARGES FURNITURE CO. v. AAIALGAMATED WOOD- 
 WORKERS LOCAL UNION, No. 131. ^ 
 
 us, 
 
 Supreme Court of Indiana, 1905. 
 
 Suit by the Karges Furniture Company against the Amalga- 
 mated Woodworkers Local Union Number 131 and others. From 
 a decree for plaintiff against certain defendants, plaintiff appeals.^ 
 
 Hadley, J. : Appellant brought this suit against the appellees, 
 the Amalgamated Woodworkers Union No. 131 of Evansville, an 
 unincorporated labor organization, and its members, to enjoin them, 
 such members being on a strike, from picketing, intimidating, and 
 otherwise interfering w4th the plaintiif's employes and business. 
 The complaint, in two paragraphs, was answered by a general 
 denial. There was a trial, special findings, and injunction awarded 
 against fourteen of the appellees, and finding and decree in favor oP 
 the remaining appellees, including said amalgamated woodworkers 
 union. "-^ 
 
 The first question to be considered is : Can an action be main- 
 tained against an unincorporated society of association? "Private 
 corporations," says Field, J., in Pembina, etc., Mining Co. v. Penn- 
 sylvania (1888), 125 U. S. 181, 189, 8 Sup. Ct. 737, 31 L. ed. 650, 
 "are merely associations of individuals united for a special purpose, 
 and permitted to do business under a particular name, and have a 
 
 name he ma}^ designate the defendant b}^ a fictitious name. In New York a 
 description identifying the person intended must be added. New York Code 
 of Civil Procedure, § 451; Simon v. Vndcrzvood, 61 Misc. (N. Y.) 369 
 (1908) ; The California Code Civil Procedure, § 474, requires the record to 
 be amended by inserting the true names when discovered. Alameda County v. 
 Crocker, 125 Cal. loi (1899) ; Moore v. Lewis, 76 Mich. 300 (1889) ; Gillian 
 v. McDowall, 66 Neb. 814 (1902). 
 
 Persons suing or sued in a representative capacity are distinct persons 
 and strangers to any right or liabiUty they may have as individuals. Leonard 
 V. Pierce, 182 N. Y. 431 (1905). But a description of the character in which a 
 party sues or is sued must be treated as surplusage when the facts establish a 
 right or liability independent of the description. Hampton V. Foster, I2j Fed. 
 468 (1904) ; Filson V. Dunbar. 26 Pa. 47=; (i&'^ t). C ompare Clifford v . Pru- 
 dential Insuranc e Co., 161 Pa. 2^7 C iSoj."). 
 
 ^ ^OnTy so much of the case is given as relates to the question of procedure.
 
 40 TARTIES 
 
 succession of members without dissolution." In England corpora- 
 tions exist only hy virtue of letters patent issued by permission of 
 the crown, and in this state corporations can be created only by 
 special permission of the state expressed in legislative enactment. 
 Corporations may in their corporate name sue and be sued, and hold 
 title to property. The interests of tlieir several members are repre- 
 sented by shares, which may be sold and transferred to a stranger 
 without affecting a dissolution of iJie status of the corporate body. 
 A fundamental purpose for the creation of corporations is to sub- 
 serve public welfare and convenience by bestowing the character of 
 individuality upon a combination of capital and individuals, for the 
 accomplishment of such things as may not be so well or rea4ily 
 achieved by a single person, and that may not be ended by death, 
 or the withdrawal of a part of their members ; and such body being 
 created by authority of a statute, and endowed with certain rights 
 and obligations, is recognized by the law as an artificial person pos- 
 sessed of the right to sue and be sued. 
 
 On the other hand, in tlie absence of an enabling statute defining 
 the rights and liabilities of the members, societies, associations, 
 partnerships, and other bodies, combined under their own rule, for 
 their own private benefit, and without any express sanction of law, 
 are not, in the collective capacity and name, recognized at common 
 law as havirig any legal existence distinct from their members, hence 
 no power to sue orbe sued in the company name. Such unincor- 
 porated associafions, so far as their rights and liabilities are con- 
 . cerned, are rated as partnerships, and to enforce a right either for or 
 ( against them, as in partnerships, the names of all the individual 
 I members must be set forth either as plaintiffs or defendants.^ 
 
 We have no statute abrogating the rule at common law ; hence 
 it must be held that this rule is still in force in this state, and,_re- 
 gardless of the eyideijce.,, the court committed no error in denying 
 "an Tfijunction against the appellee, the Amalgamated Woodworkers 
 Local Union No. 131.^° 
 
 Affirmed. 
 
 ^ Hays V. Lanier, 3 Blackf. (Ind.) 322 (1833) ; Hughes v. Walker, 
 4 Blackf. (Ind.) 50 (1835) ; Holland v. Butler, 5 Blackf. (Ind.) 255 (1839) ; 
 Livingston v. Harvey, 10 Ind. 218 (1858) ; Adams Express Co. v. Hill, 43 Ind. 
 157 (1873) ; Pollock V. Dunning, 54 Ind. 115 (1876) ; 22 Enc. PI. and Pr. 230. 
 While voluntary associations have frequentl)^ been described as partnerships, 
 they are not partnerships in the true sense of that term, since there exists no 
 authority in a single member to bind the others by his individual act, and the 
 death or retirement of a member does not dissolve the society. Dicey on 
 Parties (2d ed.) 149; 4 Cyc. 301; Ash v. Guie, 97 Pa. 493^ 39 Am. Rep. 818 
 
 (1881). " — \ ~7' 
 
 " At common law a voluntary, unincorporated association being a mere 
 aggregation of individuals, can not sue or be sued in the name of the associa- 
 tion. Lloyd V. Loaring, 6 Ves. yjz (1802) ; Pipe v. Bateman, i Iowa 369 
 (1855) ; Marsh v. Astoria Lodge, 27 111. 421 (1862) ; Detroit S. B. v. Detroit 
 Agitations Verein, 44 Mich. 313, 6 N. W. 675, 38 Am. Rep. 270 (1880) ; Bar- 
 hour v. Albany Lodge, 72> Ga. 474 (1884) ; St. Paul's Typothetae v. St. Paul's 
 Bookbinders Union, 94 Minn. 351 (1905) ; M ais.ch v . Order of Americus, 22i 
 Pa. , St. 19 9 (1909) ; Partners Mutual v. Rescr, 43 Ind. App. 634 (1908); 
 O'kourkFw. KetTey^P. Co., 135 S. W. loii (1911 Mo. App.) ; Hanley v. Elm 
 Grove M. T. Co., 129 X. \V. 807 (Iowa 191 1) ; Home Benefit Assn. v. West-
 
 WILSON V. LOUISIANA PURCHASE EXPOSITION COMMISSION 4I 
 
 WILSON V. LOUISIANA PURCHASE EXPOSITION 
 COMMISSION. 
 
 / 
 
 Supreme Court of Iowa, 1907. 
 133 Iowa 586. 
 
 This was a suit brought by the plaintiff for a writ of mandamus 
 to compel the commission to pay him the sum of $200 v/hich he 
 claimed to be due from the State of Iowa under an alleged contract 
 with the commission by which he was engaged to work for the hpr- 
 ticultural department. The executive committee of the commission 
 had disallowed his bill. The answer alleged that the suit was m ) 
 effect against the State of Iowa and also put in issue the materialS 
 averments of the petition. The court below dismissed the petition L_ 
 and plaintiff appealed. ^^ 
 
 Sherwin, J. : The appellant makes but one point in his brief 
 and argument of this case, which is that the court erred in refusing 
 to submit the issues involved to a jury for determination. On the 
 other hand, the appellees contend that the suit can not be main- 
 tained, because it is in effect a suit against the state, and because the 
 state has never consented thereto. We think it must be conceded 
 that, under tlie allegation of the petition, the defendants in this case 
 are nominal only. The Louisiana Purchase Exposition Commission 
 was a creature of the state, created for the specific purpose of rep- 
 resenting the state and its interests at the exposition bearing its^ 
 name. All expenses incurred by it in the execution of its delegated j 
 powers were payable from the funds of the state set apart by legis- \ 
 lative authority for that express purpose. The commission was \ 
 clearly but an agent of the state through whom the public funds were 
 to be disbursed, and this disbursement was authorized by la\y only 
 upon the exercise of the discretion and judgment of the commission. 
 While the state is not named as a party in the action, it is quite clear 
 to us that it is in fact the actual party in interest. If the writ prayed 
 for were to be issued, it would compel the defendant to make a draft 
 
 er, 146 S. W. 1022 (Tex. 1912) ; Francis v. Perry, 82 Misc. (N. Y.) 271 
 (1913) ; Kimball v. Lower Cohmibia Relief Assn., 135 Pac. 877 (Ore. IQ13) ; 
 Caine v. Armenia Lodge, 77 S. E. 184 (Ga. 1913)- "At law, if the objection is/ 
 properly taken, every member of an unincorporated association must be 
 joined as a party defendant. In equity, if the members are numerous, a num- 
 ber of members may be made parties defendant as representatives of the 
 class." Pickett v. Walsh, 192 Mass. 572 ( 1906) ; Mcu.v v. Malthy, 2 Swanst. 
 277 (1818) ; Snow v. Wheeler, 113 Mass. 179 (1873) ; Piatt v. Colvin, 50 Ohio 
 St. 703 (1893), 735; N. Y. Code Civ. Proc, § 1919; Ostrom v. Greene, 161 
 N. Y. 353, 55 N. E. 919 (1900); Taff Vale R. Co. v. Amalgamated Soc, 
 L. R. (1901); App. Cas. 426; Pearson v. Andcrhnrg, 28 Utah 495 (1905); 
 Wolfe v. Lim estone Council, 27,3, Pa. 3.S7 (1912). By statute, in some jurisdic- 
 tions, an unincoporated society known by some distinguishing name, may sue 
 or be sued by such name. 22 Enc. PI. & Pr. 235, 245; Hiith v. Humboldt 
 Stamr.i, 61 Conn. 227 (1891) ; Ex parte Hill, 51 So. 786 (Ala. 1910). 
 ** The statement of facts is abridged.
 
 42 PARTIES 
 
 )upon state funds ; in other words, the effect thereof would be to 
 compel the state itself to pay the plaintiff's claim, which is an un- 
 liquidated demand for which no specific provision has been made 
 from state funds. It is fundamental that a state can not be sued in 
 its own courts witliout its consent, and it is a further rule that a 
 litiji^ant will not be permitted to evade the general rule by bringing 
 action against the servants or agents of the state to enforce satisfac- 
 tion for claims. Cunningham v. Macon, etc., R. R. Co-, 109 U. S. 
 446 (3 Sup. Ct. 292, 2y il. ed. 992) ; In re Ayres, 123 U. S. 443 (8 
 Sup. Ct. 164, 31 L. ed. 216) ; Aplin v. Board of Supervisors of 
 Grand Traverse County, 73 Mich. 182 (41 N. W. 223, 16 Am. St. 
 Rep. 576) ; People v. Didaney, 96 111. 503 ; Corn monwealth v. Wick- 
 er sham, go Pa. 311 ; Weston v. Dame, 51 Maine 461. 
 
 Under the rule that a state can not be sued in its ov/n courts with- 
 out its consent, it necessarily follows that a writ of mandamus will 
 not ordinarily issue to compel state officers or agents to do an act 
 involving discretionary or judicial determination of the question. 
 Nor will such w^it issue to compel the state to execute a contract 
 made by it. Nor will the writ issue to compel the allowance of a 
 rejected or disputed claim. Payne v. Board of Wagonroad Com- 
 missioners, 4 Idaho 384 (39 Pac. 548) ; State v. M err ell, 43 Neb. 
 575 (61 N. W. 754) ; State v. Commissioners, 26 Ohio St. 364. It 
 is made to appear from the allegations of the petition herein that the 
 )plaintiff's claim for services was to be audited and allowed before a 
 voucher w^as issued therefor by the executive committee of the 
 defendant; and, under the rule of the cases heretofore cited, and 
 many others which might be cited, a writ of mandamus will not 
 issue to compel an officer or tribunal to do an act involving discre- 
 tionary or judicial determination. This branch of the case has not 
 been argued by the appellant, and we need give it no further con- 
 sideration. For the reasons thus briefly stated, there was no error 
 in dismissing the plaintiff's petition, and we need not determine 
 whether the plaintiff was entitled to a trial by a jury if the court had 
 jurisdiction of the case.^- 
 
 Affirmed. 
 
 "Accord: Young v. The Scotia, L. R. (1903) A. C. 501 ; Kiersted v. Peo- 
 ple, I Abb. Pr. (N. Y.) 385 (1855) ; Seifs v. MesserscJwiitt, 117 N. Y. App. 
 Div. 401 (1907); Kansas v. Appleton, 73 Kans. 160 (1906); Nash v. 
 Conuitomvealth, 174 Mass. 335 (1899) ; Hodqdon v. Haverhill, 193 Mass. 406 
 (1907); Alabama Industrial School v. Addler, 144 Ala. 555 (1905); Union 
 Trust Co. V. California, 154 Cal. 716 (1908) ; Thomas v. State, 16 Idaho 81 
 (1909) ; Kansas v. United States, 204 U. S. 331 (1907) ; Statham v. Watham 
 andthe Gaekwar of Baroda,'L.R. (1912) Prob. Div. 92; Porto Rico v. Ramos, 
 232 U. S. 627 (1914). For cases where the plaintiff was by statute permitted 
 to sue the state, see Russ v. Commonzi'ealth, 210 Pa. 544 (1905) ; Nus.^bamn v. 
 New York, 119 App. Div. (N'. Y.) 755 (1907T 
 
 A foreign sovereign or state can not be made a defendant without his, 
 or its, consent. Mighell v. Sultan of Jahore, L. R. (1894) i Q. B. D. 149; 
 The Parliament Beige, L. R. (1880) 5 Prob. Division 197; Strousbcrg v. 
 Costa Rico, 44 L. T. (N. S.) 199 (1880) ; Long v. The Tampico, 16 Fed. 491 
 (1883) ; Mason v. Inter Colonial Railroad nf Canada, 197 Mass. 349 (1908). 
 But a sovereign or state may sue. Dela field v. Illinois, 2 Hill (N. Y.) 159 
 (1841) ; Honduras v. Soto, 112 N. Y. 310 (1889) ; State v. Ohio Oil Co., 150 
 Ind. 21 (1897) ; and then may be subjected to a counter claim in mitigation
 
 CLAY V. OXFORD 43 
 
 CLAY V. OXFORD. V 
 
 Court of Exchecquer, 1866. 
 L. R. (1866) 2 Exch. 53. 
 
 This action was commenced on the loth of May, in the name of 
 John Clay, as plaintiff. It was afterwards discovered that John 
 Clay had died before the date of the writ, and on the 14th of June 
 a summons was taken out to substitute the names of his executrix 
 and executors as plaintiffs. This summons was abandoned; but on 
 the 7th of November, another summons to the same effect was taken 
 out before Martin, B., who made the order prayed. It was desired 
 to have the action continued, in order that some depositions which 
 had been taken before the discovery of John Clay's death might b 
 read in the cause.^^ 
 
 J. A. Russell having obtained a rule nisi to rescind this order, 
 
 Jones, Q. C, showed cause. — The amendment asked is not be- 
 yond what might have been made at common law in cases where, as 
 in this case, a peculiar reason of convenience operates in favor of 
 continuing the existing suit. 
 
 J. A. Russell, in support of the rule, was not called upon. 
 
 Bramvvell, B. : This is not a case where it can be said that 
 persons, not formally entitled to be parties, have brought an action 
 to try certain matters perfectly well known to both sides, which is 
 the explanation of Blake v. Done, 7 H. & N. 465, 31 L. J. Ex. 100, 
 and La Banca Nazionale v. Hamburger, 2 H. & C. 330. But here 
 the plaintiff is altogether wrong, or rather there is no plaintiff; the 
 man in whose name the action was brought was dead. It can not be 
 said that this is an amendment "necessary for tlie purpose of de- 
 termining in the existing suit the real question in controversy be- 
 tween the parties," nor is this an application made between the par- 
 ties to the suit ; for there is no plaintiff, and, therefore, no existing 
 suit, and no question in controversy between the parties. If we 
 could see some person suing who had a beneficial interest in the 
 claim made, though not legally entitled to sue, the case would be 
 within the principle of the authorities cited. But the power of 
 amendment is limited to cases where there was originally a party 
 suing, possessed, though with a variety in legal description, of the 
 same interest with the party to be substituted.^* 
 
 Rule absolute. 
 
 of the relief claimed by the plaintiff. South African Republic v. La Campagne 
 Franco-Beige, L. R. (1898) i Ch. Div. 190. 
 
 "Concurring opinions of Kelly, C. B., Chamrell, B. and Pigott, B. are 
 omitted. In England now under the rules of court, order 16, rule 2, where an 
 action, through "a bona fide mistake, is commenced in the name of the wrong 
 person as plaintiff, the court may substitute a new plaintiff. Hughes v. Pump 
 House Hotel Co., L. R. (1902) 2 K. B. 485. Upon this principle an executor 
 was substituted for a plaintiff dead when the suit was brought in Ram v. 
 Tinn. 19 Western Canada L. R. 529 (1911). 
 
 "Accord: Doe v. Butler, 3 Wend. (N. Y.) 149 (1829) ; Hurst v. Fisher, 
 I W. & S. 438 (1841) ; Alexander & Bros. v. Davidson, 2 McM. (S. Car.) 49
 
 44 PARTIES 
 
 y 
 
 KENYON v. SAUNDERS. 
 
 Supreme Court of Rhode Island, 1894. 
 
 18 R. I. 590." 
 
 Stiness, J. : Susan C. Kenyon died in August, 1893, leaving a 
 will, from the probate of which her husband, George N. Kenyon, 
 appealed. At the time of taking the appeal he was serving a sen- 
 tence of fiTte'en"years "imprisonment in the state prison for the crime 
 of manslaughter, imposed by this court at the March term, 1893, 
 which sentence is still in force. A motion to dismiss the appeal was 
 granted by the common pleas division on the ground : First, that 
 said George N. Kenyon was incapacitated, by reason of his sen- 
 tence and imprisonment to take the appeal or to sign and seal the 
 appeal bond required by law. 
 
 Undoubtedly under the common law of England a person con- 
 victed of a felony could not maintain an action. This rule was 
 founded upon the reason that as the conviction worked a forfeiture 
 of goods to the crown, he had no longer any property to sue for. But 
 under our law, Public Stat. R. I. ch. 248, sec. 34, no conviction or 
 sentence for an offense whatsoever works a forfeiture of estate. The 
 reason for the commion-law rule does not here exist, and an enforce- 
 ment of it might practically work a forfeiture of estate. Indeed, 
 this case is a plain example of the possibility. Here, assuming the 
 appellant's interest in the estate and the invalidity" of tlie will, he is 
 the party to take an appeal, and it must be taken within forty days 
 from the probate. If it should be held that his conviction deprives 
 him of his right to appeal, then he would thereby also be deprived 
 I of the power ever to enforce his right to the property itself. Not- 
 withstanding the difficulties which may attend cases of this kind, 
 such a rule would be contrary to tlie spirit of the statute and unsup- 
 ported by the reason upon which it was originally based. A convict 
 is neither civilly dead, nor deprived of his rights of property;" and, 
 If this be so, he should be entitled to enforce such right w hen it is 
 necessary to do so.^® 
 
 Reversed. 
 
 (1841) ; Bollinger v. Choiitcan, 20 Mo. 89 (1854) ; Wolf v. Brown, 142 Mo. 
 612 (i8q7): Kou ntz v. National T. C o., io7 Pa. St. ^a8^ 47 Atl. 350 (1900), 
 and see Lormg v. Folger, 73 Mass. 505 (1856) ; Winship v. Conner, 42 N. H. 
 341 (1861) ; Watt V. Brookover, 35 W. Va. 323, 13 S. E. 1007, 29 Am. St. 
 811 (1891). As to whether the rule applies to nominal plaintiffs, compare 
 Lewis V. Austin, 144 Mass. 383, 11 N. E. 538 (1887) ; Denton v. Stephens, 32 
 Miss. 194 (1855) with Karrick v. Wetmore, 22 App. D. C. 487 (1903). 
 
 At common law the death of either party to a suit before verdict and 
 judgment abated the action, but by statutes it is now provided that if the 
 cause of action survives, the suit shall not abate but may be continued by or 
 against the representatives of the deceased. 5 Enc. PI. & Pr. 786; i Cyc. 47 
 and cases cited. As to the survival of the cause of action, see Street's Foun- 
 dation of Legal Liability, vol. 3, ch. 6. Hayden v. Vreeland, 37 N. J. L. Z72, 
 18 Am. Rep. 723 (1875). 
 
 "A part only of the opinion of the court is printed. 
 
 ""Besides men attainted in a praemunire, every person that is attainted 
 of high treason, petit treason, or felony, is disabled to bring any action ; for
 
 MAC REA V. KANSAS CITY PIANO CO. 45 
 
 J. D. MacRAE and L. S. NAFTZEGER v. THE KANSAS 
 CITY PIANO COMPANY. 
 
 Supreme Court of Kansas, 1904. 
 
 69 Kans. 457. 
 
 Cunningham, J. : The Kansas City Piano Company brought 
 its action in replevin against J. D. MacRae to recover the possession 
 of a piano. A redeUvery bond was given by MacRae, with L. S. 
 Naftzger, one of the plaintiffs in error, as surety, and the instru- 
 ment retained. The piano company had judgment for the recovery 
 of the possession of it and, upon its inability to obtain it or Mac- 
 Rae's failure to deliver it, for the recovery of the sum of $200. To 
 reverse that judgment MacRae brought proceedings in error in this 
 court, but it was affirmed.^" {MacRae v. Piano Co., 64 Kans. 580.) 
 
 After the final determination of that action the piano company 
 caused garnishment summons to be issued and served on plaintiff 
 in error Naftzger. In this garnishment proceeding MacRae filed 
 his answer setting out the reasons why the funds in the hands of 
 Naftzger belonging to him should not be subjected to the payment 
 of the above money judgment against him. The first reason, briefly 
 summarized, was that, after the commencement of the action and 
 prior to the rendition of the judgment, the piano company, which 
 was a Missouri corporation, had been dissolved in accordance with 
 the law of its domicil; that more than one year had elapsed since 
 its dissolution, and the action had not been revived in the name of 
 the real parties in interest or the successors in interest of the com- 
 pany, or in the name of any one authorized further to prosecute the 
 case. He set out the statute of the State of Missouri in force at the 
 time of the dissolution of the corporation, which, in so far as it re- 
 lates to the persons who are authorized to carry on pending litiga- 
 
 he is extra legem posiius, and is accounted in law civiliter mortuns." Coke 
 on Littelton 130 a. By the act of 33 and 34 Vict. ch. 23 ( 1870) ; forfeitures ^ 
 for treason and felony are abolished but a convict is declared incapable of \ 
 bringing a suit at law or in equity and the Crown may appoint an adminis- 
 trator of the convict's property. Carr v. Anderson, L. R. (1903) i Ch. D. 90. 
 The American cases are generally in accord with the principal case. 
 Cannon v. Windsor, i Houst. (Del.) 143 (1850) ; Willingham v. King, 23 
 Fla. 478 (1887) ; Dade Coal Co. v. Haslett, 83 Ga. 549 (1889) ; San Antonio 
 R. Co. V. Gonzales, 72 Pac. 213 (Tex. 1903). In Kansas an action for the 
 recovery of property belonging to a convict must be brought by his trustee. 
 New V. Smith, 84 Pac. 1030 (Kans. 1906). Under a statute suspending civil 
 rights during the term of imprisonment an escaped convict can not sue. 
 Beck V. Beck, 36 Miss. J2 (1858). Otherwise where he escapes into another 
 state, Wilson v. King, 59 Ark. :^2 (1894). The fact that the civil rights of a 
 convict are suspended will not prevent him from being sued. Coppin v. Gun- 
 ner, 2 Ld. Ravm. 1572 (1730); Ramsdcn v. Macdonald, i Wils. 217 (1748) ; 
 Morris v. Wdlsh, 14 Abb. Pr. (N. Y.) 387 (1862) ; Bonnell v. Railroad Co., 
 12 Hun (N. Y.) 218 (1877) ; Broivn v. Mann, 68 Cal. 517 (1886) ; Gray v. 
 Gray, 104 Mo. App. 520 (1904). 
 
 As to civil death see Plainer v. SJierzvood, 6 Johns. Ch. (N. Y.) 118 
 (1822) ; Avery v. Everett, no N. Y. 317 (1888). 
 
 " Part of the opinion of the court is omitted.
 
 46 PARTIES 
 
 tion on behalf of the stoekholders thereof, is substantially tlie same 
 as the Kansas statute (Gen. Stat. 1901, par. 1312). This provides 
 that the directors or managers of a dissolved corporation shall be 
 trustees for the creditors and stockholders thereof, and as svich may 
 maintain iudicial proceedings for the purpose of collecting debts 
 due to such corporation. The Missouri statute specifically provides 
 that such proceedings shall be "by the name of the trustees of such 
 corporation, describing it by its corporate name." 
 
 No issue was taken upon the truth of these answers by any plead- 
 ing by the piano company. The court, however, proceeded to render 
 judgment directing payment of the money in the hands of Naftzger 
 into court to be distributed in a manner that would protect him, and 
 from that judgment this proceeding in error was brought by Mac- 
 Rae and Naftzger. 
 
 The first defense seems quite sufficient. The dissolution of a cor- 
 poration operates, as to it, the same as the death of an individual ; 
 all its powers, prerogatives and authority — its life — ceased, and all 
 legal proceedings then pending were at once suspended. At the 
 common law this termination of corporate powers became so radical 
 that a corporate debtor was entirely discharged of his obligation, 
 and all action by or against it were at once and forever abated ; not 
 even an execution on a judgment theretofore obtained could issue. 
 (9 A. & E. Encyc. of Law (2d ed., 603; 10 Cyc. 1310). It is 
 only in virtue of some statute authorizing it or some principle of 
 equity requiring it that these results may be avoided, or that pending 
 proceedings may be further prosecuted, or judgments already ren- 
 dered enforced. It is not necessary now to decide whether the bar 
 of the statute had run upon a proceeding to revive this action in the 
 name of the parties who, the statute says, may further prosecute it. 
 It is sufficient to say that after the dissolution of the corporation 
 such substitution under authority of such statute and in pursuance 
 of its terms, must be had in order that the action may proceed. It 
 could no longer be maintained in the name of the dissolved corpora- 
 tion. (Paola Town Co. v. Kriitz, 22 Kans. 725 ; Eagle Chair Co. v. 
 Kelsey,22, Kans. 632.) The defendants could raise this question. They 
 could well say that there was no one authorized to receive the fruits 
 of this action, that had there been the money judgment could have 
 been avoided by turning over the replevied property to the persons 
 authorized to receive it. In face of the undenied facts pleaded 
 relative to the dissolution of the company and the failure to substi- 
 tute the parties whom the statute authorizes to carry on the litiga- 
 tion, we are of the opinion that the court erred in proceeding with 
 the case without such substitution.^* 
 
 Judgment reversed. 
 
 "Accord: CommercialBankv. Lockii'ood,2Ua.rr. (Del.) 8 (1835) ■,Bonaffe 
 V. Fowler, 7 Paige Ch. (N. Y.) 576 (1839) ; Miami Exporting Co. v. Gano, 
 13 Ohio 269 (1844) ; Greeley v. Smith, 3 Story (U. S.) 657 (1845) ; Faaners 
 &ALMank v. Little, 8 W. & S. (Pa.) 207 (1844) ; Saltmar.<;h v. P. & M. Bank, 14 
 ATir668 (1848) ; Hightower v. Thornton, 8 Ga. 486, 52 Am. Dec. 412 (1850) ; 
 Carey v. Giles, 10 Ga. 9 (1851) ; Rmlding Association v. Anderson, 7 Phila. 
 (Paj_l26(i868) ; National Bank v. Colby, 21 Wall. (88 U. S.) 609, 22 L. ed. 
 ^7(1^4jn^eifler v. Houesdale & D. P. R. Co.. i Pa. C . C. 64 (1884) ;
 
 CHADSEY V. LEWIS 47 
 
 SECTION 2. REMEDIAL INTEREST. 
 
 CHADSEY V. LEWIS. 
 
 / i 
 / \ 
 
 Supreme Court of Illinois, 1844. 
 6 ///. I53-" 
 
 Treat, J. : This was an action brought by Chadsey, as admin- 
 istrator of Ohver, against William Lewis. The declaration was in 
 debt on a bond, made b}^ Lewis to Oliver, and conditioned for the 
 payment of five hundred dollars. The defendant pleaded two pleas 
 in bar. First, payment; second, that Oliver, in his life-time, made a 
 voluntary gift of the bond to Mary Lewis and Margaret Lewis, and 
 delivered the same for their use and benefit, whereby the property 
 became vested in them. The court overruled a demurrer to this plea, 
 and rendered judgment for the defendant. The administrator prose- 
 cutes a writ of error. 
 
 The chief point in the case is, as to the validity of the second 
 plea. Without inquiring whether the facts alleged in the plea con- 
 stitute such a gift of the bond, as a court of equity will protect and 
 enforce when its aid is sought, it is very clear that they constitute 
 no legal defense to this action. This is an action at law, and it is 
 only necessary to ascertain who has the legal interest in the bond. 
 The demurrer only admits such facts as are well pleaded. The plea 
 does not allege an assignment of the bond. Under our statute, the 
 legal interest can only be transferred by indorsement in writing.^" 
 A mere delivery does not pass such an interest. An action can only 
 be maintained in the name of the person who has the legal interest. 
 Kyle V. Thompson, 2 Scam. 432; Campbell v. Humphries, 2 Scam. 
 
 478- 
 
 The defendant failing to allege an assignment of the bond, the 
 inference is unavoidable, that there was none, and that Oliver never 
 parted with the legal interest. At his decease, as a matter of course, 
 that "interest descended to his personal representative, in Vi-hose 
 name alone an action must be brought to recover the money. Chad- 
 
 American Ex. Bank v. Mitchell, 179 111. App. 612 (1913)- "But courts of 
 equity regard a business corporation as holding the legal title to its prop- 
 erty in trust for its stockholders and creditors. Equity treats its property 
 as appropriated and devoted to certain purposes to which it is to be applied, 
 though the existence of the corporation itself is terminated and legal reme- 
 dies against it are extinguished." Nelson v. Hubbard, 96 Ala. 238, li So. 
 428, 17 L. R. A. 375 (1891) ; Mumma v. Potomac Co., 8 Pet. (U. S.) 281, 8 
 L. ed. 945 (1834) ; Thornton v. Marginal Freight Co., 123 Mass. 32 (1877) > 
 Broughton V. Pensacola, 93 U. S. 266, 23 L. ed. 896 (1876) ; Kelly v. Rochelle, 
 93 S. W. 164 (Tex. 1906). By statute the legal existence of a corporation is 
 frequently extended for the purpose of winding up its affairs. Lindeman v. 
 Rusk, 125 Wis. 310, 104 N. W. 119 (1905) ; Castle's Admr. v. Acrogen Coal 
 Co., 145 Ky. 591 (1911) ; Myers v. Montgomery, 130 N. Y. S. 133 (1911); 
 Harris-Woodbury Co. v. Coffin, 179 Fed. 257 (aflfd. 187 Fed. 1005) (1910) ; 
 Newhall v. Western Zinc Mining Co., 164 Cal. 380 (1912) ; Brandon v. Ump- 
 qua L. Co., 166 Cal. 322 (1913). 
 
 " The statement of facts and arguments of counsel are omitted. 
 
 ^'' See 4 111. Stat. Ann. 4363, § 7621 ; 2 Kent's Comm. 439.
 
 48 PARTIES 
 
 sey, in whom the legal interest is thus vested, institutes an action on 
 the bond, and the obligor does not deny that interest, but insists as a 
 ; defense that third persons have an equitable interest in the obliga- 
 [ tion. Is this any answer in law to the action ? This question was, 
 in principle, settled by this court, in the case of McHcnry v. Ridge- 
 lew 2 Scam. 309. In that case, an action was brought in the name of 
 Ridgeley, on a note assigned to him as cashier. A plea that the note 
 was assigned to Ridgeley as the agent of the bank; that he never 
 had any interest in the note ; and that the legal and beneficial interest 
 therein, w'as in the bank, was held by the court to constitute no de- 
 fense to the action. In that case, the legal interest was in the plain- 
 tift', and the defendant was not permitted to defeat a recovery, by 
 showing that the note was held for the benefit of others. In the 
 present case, the legal interest of the administrator is not questioned, 
 and the only defense interposed by the obligor is, that third persons 
 are beneficially interested in the bond. This is no reason why he 
 should not perform his obligation. The suit is in the name of the 
 proper person, and it makes no difference to the defendant for whose 
 benefit it is brought. As was said in the case of McHenry v. Ridge- 
 ley, the court will not inquire whether the plaintiff sues for himself, 
 or as trustee for some other person. It is sufficient that he has the 
 legal interest. For aught the record shows, this suit may be prose- 
 cuted for the benefit of the donees of the bond. Whether it is or not, 
 the rights of the defendant are not to be affected by the recovery. 
 jAdmitting the truth of the plea to the fullest extent, it show^s but 
 [this, that the plaintiff has the legal, and the donees the equitable 
 jesfate. Tn a court of law, which of these interests is to prevail? 
 '3Tost assuredly the legal one. This view is conclusive on the de- 
 fendant. The court of law, having jurisdiction of the case, should 
 proceed to try it according to its rules, leaving to those claiming the 
 beneficial interest in the subject-matter to invoke the aid of equity. 
 If the Lewises are in fact the donees of the bond, the administrator 
 holds it as trustee for them, and if he refuses to account to them, a 
 court of equity will compel him to execute the trust. It may be a 
 serious question whether there w-as a valid gift of the bond, impor- 
 tant alike to the interests of the estate, and the donees. That ques- 
 tion ought certainly not to be determined in this collateral manner, 
 in a proceeding to which the donees are not parties, and, of course, 
 not bound by any adjudication v/hich may be made. In this con- 
 flict between the legal and the equitable interests, a court of equity 
 is peculiarly the appropriate tribunal to adjust the rights of the 
 parties. The defendant is not interested in that adjustment, it being 
 a matter exclusively between the administrator and the donees. 
 
 We think, therefore, that the circuit court erred in deciding the 
 plea to be valid, and its judgment is reversed with costs, and the 
 cause remanded for further proceedings, consistent with this 
 opinion.-^ 
 
 Judgment reversed. 
 
 ^ See also, Bauerman v. Radcnins, 7 Term Rep. 663 (1798) ; Skinner v. 
 Somes, 14 Mass. 107 (1817) ; Matlack v. Henderson, 13 N. J. L. 263 (1832) ; 
 Garlands v. Jacobs, 2 Leigh (Va.) 651 (1830) ; Hcald v. IVarren, 22 Vt. 409
 
 ■ -S^' 
 
 /^ 
 
 
 
 
 ^. 
 
 
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 ''i^v^t^ 
 
 
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 T^^lX-^-^^^y^-O)^ 
 
 c-i^^ a-««^4.^ 
 
 < 

 
 CLARKSON V. DODDRIDGE 49 
 
 CLARKSONS v. DODDRIDGE. 
 
 Supreme Court of Appeals of Virginia, 1857. 
 
 14 Gratt. (Va.) 42. 
 
 This is an action of debt brought in the name of Doddridge and 
 Miller against D. J. W. and John N. Clarkson, on three bonds for 
 the sum of four thousand seven hundred and twenty dollars and 
 sixty-six, and two-thirds cents each, dated December 25, 1851, and 
 payable nine, eighteen and twenty-four months after date. The 
 obligees in whose names the action is brought, are styled "commis- 
 sioners" in the bonds; and the said sum of money is therein de- 
 scribed, respectively as the " 'first,' 'second' and 'third' payment on 
 salt property of the late Charles G. Reynolds, sold to D. J. W. Clark- 
 son this day." The defendants tendered a special plea in bar, aver- 
 ing, in effect, therein, that the said bonds were executed to the plain- 
 tiffs as commissioners appointed in a chancery suit to sell certain 
 lands; that before the said action was commenced, the said plain- 
 tiffs Avere superseded by the appointment of other commissioners in 
 the said suit, to wit, Quarrier and Gillison; and that thereby the 
 right of action on the said bonds was taken from the said plaintiffs, 
 and vested and now remains in said Quarrier and Gillison. To this 
 plea the plaintiffs objected; and the objection was sustained by the 
 court; "being of opinion that the plea aforesaid does not present a 
 good and sufficient bar to the action brought in this case in the name 
 of Doddridge and Miller, to recover the sums secured to be paid by 
 the several writings obligatory upon which it is founded; and that 
 the present commissioners have a right to sue upon said bonds in the 
 name of said Miller and Doddridge." To this opinion the defend- 
 ants excepted. Judgment was rendered for the plaintiff for debt, 
 interest and costs. "That judgment is now before this court for revi- 
 sion on a writ of supersedeas.-- 
 
 MoNCURE, J. : The only error assigned in the judgment is in the 
 rejection of the special plea. Did the court err in rejecting it? Was 
 the action properly brought in the names of the commissioners to 
 whom the bonds were payable ? Or ought it to have been brought in 
 the names of the new and substituted commissioners ? 
 
 It is a general rule, that an action on a contract must be brought 
 in the name of the party in whom the legal interest in such contract 
 ^iJ'vest^d. The legislature alone has power to make an exception to 
 this rule. 
 
 In the case under consideration, the bonds are payable to Miller 
 and Doddridge, the old commissioners, in whom, therefore, by the 
 
 (1850); Bentley v. Standard Fire Insurance Co., 40 W. Va. 729 (1895); 
 Martel v. Desjardin, 93 Maine 413, 45 Atl. 522 (1899) ; Sentinel Printing Co. 
 y, Long_,^ Pa. Super. Ct. 608 (iqo.t) : Hozves v. Sco'ti, 22^ ra. 7 (, 1909; ; 
 Gilra;y v. MetropoTitan N. Bank, 113 IW. App. 485 (1904) ; Dicey on Parties 
 (2d ed.) 68; i Chitty on Pleading (7th ed.) 17. 
 
 " The statement o£ facts is from the opinion of the court, part of which 
 is omitted. 
 
 4 — Civ Proc.
 
 50 .PARTIES 
 
 very terms of the bonds, and according to the general rule of law 
 before stated, the legal interest in, and right of action on, the bonds 
 were vested. There is no law in existence which divests this legal 
 interest and right of action. The court of chancery, it is true, was 
 authorized by law to substitute new, in place of tlie old, commis- 
 sioners. But the effect of such substitution was not to transfer the 
 legal interest in the bonds from the old to the new commissioners. 
 It only authorized the new commissioners, upon giving the security 
 ^required by law, to collect the bonds; and to bring suit, if necessary 
 'for the recovery thereof, in the names of the old commissioners. 
 The right of the new commissioners to receive the money, does not 
 imply a right to bring an action therefor in their own names. A per- 
 son may have a right to receive money, without any corresponding 
 right to bring an action for it in his own name. This happens when- 
 ever a chose in action, not negotiable by the law merchant, and not 
 coming under the provisions in the Code, ch. 144, § 14, is assigned.^^ 
 Tlie assignee has a right to receive the money, but not to bring an 
 action therefor in his own name. He has, however, an ample rem- 
 edy. He has a right to bring an action at law in the name of his 
 assignor ; and he will be regarded, even by a court of law, as the 
 substantial plaintiff in the action. The court will protect his rights, 
 and will not permit the nominal plaintiff to receive the money, nor to 
 release the debt, nor to dismiss the action. The same principle ap- 
 plies to this case. The circuit court was therefore right in saying 
 that the present commissioners have a right to sue upon the bonds 
 in die name of Miller and Doddridge, the obligees. 
 
 But it was argued, that even if they had a right to bring such a 
 suit, it ought to appear that the suit was brought by them or for 
 their use ; and that as the declaration does not show that the suit was 
 so brought, the fact, if it had been so, should have been replied to the 
 plea. It is usual, when an action is brought in the name of one 
 person for the use of another, to state the fact in the body of the 
 declaration, or by an endorsement thereon or on the w^rit. And it 
 is useful and convenient to do so, to give notice to the defendant of 
 the right of the substantial plaintiff, and to enable the court to 
 protect them by its orders. But this is not necessary.^* The state- 
 ment is no material part of llie pleadings. The cause of action is 
 complete without it. It was, therefore, no bar to the action in this 
 case that new commissioners had been substituted to the place of the 
 plaintiffs, notwithstanding it may not appear on the record that the 
 suit was brought by the former, or for their use. The defendants 
 are in no danger of being compelled to pay the money into the wrong 
 hands. They have an ample remedy to prevent that ; but not by a 
 
 ^Skinner v. Somes, 14 Mass. 107 (1817) ; Pierce v. Talbot, 213 Mass. 
 
 330 (1913)- 
 
 "Accord: Reigar t v. El lmaker , 6 S. & R. CPa.") 44 (1820) ; American 
 Mfg. Co. V. Mo rgan ^ 7X70^2$ Pa. Super. Ct. I76_(i904) ; Wey v. Dooley, 
 134 Til. App7 244 (1967) ; Uowesv. Scott, 224 Pa. St. 7 (1909X; Kelly v. 
 Greany, 216 Mass. 296 (1914). The holder of the legal title is called the 
 "legal", or, "nominal" or "record" plaintiff; the beneficial owner the "use", 
 or, the "equitable" or the "real" plaintiff. 30 Cjx. 37.
 
 CLARKSON V. DODDRIDGE $1 
 
 plea in bar of the action. Their remedy is by motion. If they 
 really apprehend that the action vv^as not brought by or for the use 
 of the new commissioners, and that the old commissioners are fraud- 
 ulently attempting to recover and collect the money for their own 
 use, they can, by motion, obtain a rule requiring the new commis- 
 sioners to avow and prosecute, or to disavow and dismiss the action. 
 And the court, if it have cause to suspect any such thing, may and 
 ought, ex mero motu, to award such a rule. The action was no doubt 
 brought by and for the use of the new commissioners. The fact is 
 plainly inferable from the opinion of the court expressed in the bill 
 of exceptions. It also appears, from an exhibit produced and read 
 by the defendants in connection with their plea, that the new com- 
 missioners were appointed for the very purpose of bringing an 
 action on the bonds. The action was in fact brought shortly there- 
 after. The attorneys who brought it, and the new commissioners, 
 bear the same surnames (Ouarrier and Gillison) and may be the 
 same persons. 
 
 I am of opinion that there is no error in the judgment, and that 
 it be affirmed.^^ 
 
 =^ Winch V. Kceley, i Term Rep. 619 (1787) ; Brandt v. Heatig, 2 Moore 
 184 (1818) ; Smith v. Wooding, 20 Ala. 324 (1852) ; Foss v. Lowell Five Cents 
 Sav. Bank, in Mass. 285 (1873); State v. Layman, 46 Md. 190 (1876); 
 Sumer v. Sleeth, 87 111.. 500 (1877) ; Richmond & D. R. Co. v. Bedell, 88 Ga. 
 591 (1891) ; Bohanan v. Thomas, 49 So. 308 (Ala. 1909). 
 
 At the common law the nominal plaintiff was looked to for costs, Evans 
 V. Rees, 1 Gale & Davidson's Reports, 579 (1841) ; hence the use plaintiff 
 could be compelled to indemnify the nominal plaintiff. Wehb v. Steele, 13 
 N. H. 230 (1842) ; Henderson v. Webb, 8 111. 340 (1846). Statutes have gen- 
 erally imposed costs on the beneficial party. New York Code Civil Procedure, 
 § 3247, Slanson v. Watkins, 95 N. Y. 639 (1884); see note to 62 Lawyers 
 Reports, Annotated 617, although the liability may be cumulative, Riiddell 
 V. Green, 104 Md. 371 (1906) ; Giffordv^Gifford, 27 Pa,^202 (1856), A suit 
 can not be maintained by a legal ■"f)laintifragainst the objection of a use 
 plaintiff having the entire beneficial interest. S^rigss^^ N. Serf ass 1 5 Penna. 
 pis. Rep. 748 (1906) ; but upon proper indemnity furnished, the"beneficial 
 party may use the name of the person having the legal title even against his 
 will. Ro'ckwood V. Broivn, 67 Mass. 261 (1854); Shanks v. White, 36 Ga. 
 432 (1867) ; Foss V. Lozvcll Bank, in Mass. 285 (1873) ; Walker v. Brooks, 
 125 Mass. 241 (1878) ; Coffev v. White . 14 W. N. C. (Pa.) 108 (i883-X. The 
 device of suing to use will not be permitted to impair the rights of the de- 
 fendant, Harriman v. Hill, 14 Maine 127 (1837) ; Stone v. Hubbard, 7 Cush. 
 (Mass.) 595 (1851). So also the use plaintiff will be protected from defenses 
 arising out of acts of the plaintiff after notice of the assignment; Little field 
 v. Story, 3 Johns. (N. Y.) 425 (1808) ; Wagner v. National Life Insurance 
 Co., 90 Fed. 394 (1898), at page 401. Thus a retraxit entered by the nom- 
 inal plaintiff without the consent of the beneficial owner is unavailing. 
 Sloan V. Summers, 14 N. J. L. 509 (1834). But the defendant may avail him- 
 self of all prior defenses against the assignor. Craighead v. Swarts. 219 Pa. 
 149 (1907). Partial assignments were not within the rule permitting assign- 
 ees to sue at common law, Mandcrville v. Welch, 5 Wheat. (U. S.) 277 
 (1820) ; Fairari cves v. Lehigh N. Co.. 2 Phila. CPa.) 182 ( i8=;6) ; Burnett v. 
 Crandall, 63 Mo. 410 (1876) ; Thiel v. Lumber Company, 137 Wis. 272 (1908); 
 in equity see James v. Nezvton, 142 Mass. 366 (1886), and under the judi- 
 cature act of 1873 see Foster v. Baker, L. R. (1910), 2 K. B. Div. 636. The 
 right of an assignee of a chose in action to sue at law in the name of his 
 assignor has been said to afford an adequate remedy so as to preclude a
 
 ;i 
 
 S2 PARTIES 
 
 KITCHINS V. HARRALL. 
 
 Supreme Court of Mississippi, 1877. 
 
 54 Miss. 474. 
 
 Appeal frorn_th£.Xllianr.eiyCQMf4;-Qf Tipi)ah County. Hon. A. B. 
 Fly, chancellor. 
 
 This suit was to subject land, a bond for title to which had been 
 given by Harrall to Kitchins, to the payment of notes for the pur- 
 chase money, executed by Kitchins to Harrall, and by him indorsed 
 to Pryor Scally and William Pollard. 
 
 There was a decree for the plaintiff and Kitchins, the defendant, 
 appealed.-*^ 
 
 Campbell, J. : Harrall exhibited this bill for the use of Pryor 
 Scally and William Pollard. Harrall is the only complainant, and 
 complains for the use and benefit of the persons named, who are 
 not made parties to the bill. The prayer of the bill is to decree pay- 
 ment to the complainant for the use of the parlies named. We are 
 not aware of any authority for this new mode of instituting a suit 
 Tn chancer}-.-'" Courts oi law permit the holder of the legal title, in 
 
 suit in equity. New York G. Co. v. Memphis W. Co., 107 U. S. 205 (1882) ; 
 Walker v. Brooks, 125 Alass. 241 (1878). 
 
 In England the judicature act of 1873, §§ 25, 26, provides that an abso- 
 lute assignment by writing under the hand of the assignor of any debt or 
 legal chose in action of which express notice is given in writing to the 
 debtor, shall be effectual in law to pass the legal right to such debt, subject 
 to prior equities, and all legal remedies for the same. If an assignment does 
 not come within this section it may be enforceable as an equitable assign- 
 ment, and one seeking to recover on an equitable title must make the holder 
 of the legal title a party, Allen v. Woods, 68 L. T. (N. S.) 143 (1893); 
 Ba-ci'den's Patents Syndicate v. Smith, L. R. (1904) 2 Ch. Div. 86. An appli- 
 cation under the rules of court (Order 16, rule 2) to add the name of the 
 assignor as plaintiff will only be granted on proof of his consent or that he 
 has been notified and all the terms necessary for his protection from liability 
 offered to him. Tiirquand v. Fcaron, L. R. (1879), 4 Q. B. Div. 280. 
 
 *' The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 ^Accord: Hammond v. Messenger, 9 Sim. 327 (1838) ; Frye v. Bank of 
 Illinois, 10 111. 2,22 (1848); 5d^eri v._S:£iZi^i^j_Er£wst. (Pa.)^ 53 1 (1868); 
 Walker v. Brooks, 125 Mass. 241 (1878) ; Hart v. O'Brien, 16 VV. Va. 791 
 (1879); Hayward v. Andrews, 106 U. S. 672, 27 L. ed. 271 (1882); New 
 York Guar. Co. v. Memphis Water Co., 107 U. S. 205, 27 L. ed. 484 (1882) ; 
 Kellam v. Sayer, 30 W. Va. 198, 3 S. E. 589 (1887). 
 
 ( While at law he alone sues in whom is vested the legal title, in equity a 
 person beneficially interested may and generally should maintain the suit in 
 'his own name. Btirlew v. Hillman, 16 N. J. Eq. 23 (1863); Olds v. Cum- 
 mings, 31 111. 188 (1863); Field v. Maghee, 5 Paige (N. Y.) 539 (1863); 
 Synith v. Brittenham, 109 111. 540 (1884) ; Fidelity Co. v. Trust Co., 143 Fed. 
 152 (1906). But in some instances the holder of the legal title may be per- 
 mitted to sue alone in equity, as where a trustee sues for all the beneficiaries 
 in a proceeding that does not affect his relations with them. Kerrison v. 
 Stewart, 93 U. S. 155, 23 L. ed. 843 (1876) ; Ashton v. Atlantic Bank, 85 
 Mass. 217 (1861) ; Winslow v. Minnesota R. Co., 4 Minn. 313 (i860) ;Taven- 
 ner v. Barrett, 21 W. Va. 656 (1883) ; Vcttcrlein v. Barnes, 124 U. S. 169, 
 31 L. ed. 400 (1888). Compare Tyson v. Applegate, 40 N. J. Eq. 305 (1885) ; 
 Gibson v. Ledwitch, 84 Kans. 505 (1911).
 
 SHERIDAN V. NEW YORK 53 
 
 certain cases, to sue for the use of the beneficial owner, who is re- 
 garded as the real plaintiff. TlTisJs__becaAise_the.Jbmefi£i^^ 
 can not sue in a court of law in his o\vn name; and, therefore, the 
 name of the holder of the legal title must appear as nominal plain- 
 tiff. There is no reason for any such rule in chancery courts, and it 
 has never obtained recognition by them, Coke said, Nihil simiil 
 inventum est et perfectwn, which is applicable to this suit. 
 Decree reversed. 
 
 New York Code of Civil Procedure. 
 
 § 449. "Every action must be prosecuted in the name of the real 
 party in interest except that an executor or administrator, a trustee 
 of an express trust, or a person expressly authorized by statute, rnay 
 sue, without joining with him the person for whose benefit the action 
 is prosecuted. A person, with whom or in whose name, a contract 
 is made for the benefit of another is a trustee of an express trust, 
 within the meaning of this section." " 
 
 SHERIDAN V. THE MAYOR, ALDERMEN AND COMMON- 
 ALTY OF THE CITY OF NEW YORK. 
 
 Court of Appeals of New York, 1876. 
 
 68 A^. Y. so.'" 
 
 Church, Ch. J. : The only question submitted to the jury was 
 whether Jhe_piaintiff was _the real ^arty in interest. A written assign- 
 ment, properly executed and acknowledged before a proper officer, 
 was produced' in terms transferring absolutely for a valuable con- 
 sideration the demand iiTsmt from Morgan Jones to the plaintiff, 
 aiKTproof was made of the delivery thereof by the former to the 
 latter. As to these facts there was no dispute, nor could there be 
 any dispute that the plaintiff held the legal title to the demand. The 
 learned judge submitted the question to the jury in this language: 
 "If you believe from the evidence that the real party in interest in 
 this suit is Morgan Jones and that this is a sham transaction, then I 
 think the plaintiff should be defeated in the action." 
 
 Precisely what the learned judge meant by a sham transaction, 
 as applied to the transfer of the demand, is not very apparent, but I 
 
 ^Montana Code of Civil Procedure, § 570 (1908), contains identical lan- 
 guage. The provision that actions must be prosecuted in the name of the 
 "real party in interest" has been incorporated in the codes of many 
 states, but with different Hmitations. See for examples the California Code 
 of Civil Procedure, § 367; Missouri Code Civil Procedure, § 540; Gen- 
 eral Code of Ohio (1910), § 11241; Washington Code of Civil Procedure 
 (Ballinger's Statutes), § 4824; Oregon Code of Civil Procedure, § 27; 
 South Carolina Code of Civil Procedure, § 132; Pomeroy's Civil Reme- 
 dies (4tli ed.), § 62, p. 87. 
 
 ""Arguments of counsel and part of the opinion are omitted. Reported 
 below in 8 Hun. (N. Y.) 424.
 
 54 TARTIES 
 
 infer from this and other parts of the charge that he intended to 
 charge, that ahhough a legal title to the claim was transferred to 
 the plaintiff and the assignment was valid as against the assignor, 
 ^ yet if the jury believed that the transaction was colorable, that is, 
 that by any private or implied understanding the transfer was not 
 t intended as bona tide, or an actual and real sale of the demand as 
 / between the parties, the plaintiff could not recover. In this, with 
 great respect, I think the learned judge erred. A plaintiff is the real 
 party in interest under the code, if he has a vandtrafisfer as against 
 ~tTie assignor, and holds the legal title to the demand. The defendant 
 has no legal interest to inquire further. A payment to, or recovery 
 \ by, an assignee occupying this position, is a protection to the defend- 
 L ant against any claim that can be made by the assignor. In this 
 I case, from the undisputed facts, the defendant would be protected if 
 it paid to the assignee or if a recovery was had against it by him. 
 No question was made and none submitted to the jury as to the 
 execution or delivery of the assignment, and conceding that the 
 1 circumstances were such as to justify the jury in finding that it was 
 / colorable as between the parties, yet that w^ould constitute no de- 
 I fense on the ground that the plaintiff was not the real party in inter- 
 I est. Such an inquiry might become material if the rights of credit- 
 ' ors were involved, or upon the right of interposing some defense 
 or counterclaim against the assignor. Nor is it of any moment that 
 no consideration was paid for the demand by the assignee. The 
 assignor could give the demand to the plaintiff, or sell it to him for 
 an inadequate consideration, or without any consideration. It is 
 enough if the plaintiff' has the legal title to the demand, and the 
 defendant would be protected in a payment or recovery by the 
 assignee. It is not a case of mala fide possession which the defend- 
 ant can avail itself of, as if a thief should bring an action upon a 
 promissory note which he had stolen. These views are well set- 
 tled by authority. (44 N. Y. 231 ; 61 N. Y. 614; 2/ Barb. 178; 38 
 Barb. 579; 29 N. Y. 554; 15 Wend. 640.) 
 
 As before remarked, there was no question as to the making 
 and delivery of the assignment, and the remarks of the learned 
 judges at general term, therefore, as to when and under what cir- 
 cumstances a jury is or is not justified in finding contrary to the 
 evidence of one or more witnesses, has no application to the question 
 involved in this case, viz. : the bona fides as between assignor and 
 assignee of the transfer. Suppose after the trial of this action the 
 assignor had commenced an action. The defendant, by proving the 
 making and delivery of the assignment to the plaintiff, could have 
 defeated the action on the ground that he was not the party in inter- 
 est, and I apprehend he would not have been permited to show that 
 the transfer was not as between them an actual bona fide sale, and 
 the result might be that, although the defendant justly owed the debt, 
 it would avoid liability because no one had a right to prosecute. The 
 code never anticipated such a result. 
 Judgment reversed.''^ 
 
 *° Accord: Hays v. Hathorn, 74 N. Y. 486 (1878); Friedman v. Schiil- 
 vian, 46 Misc. (N. Y.) 572 (1905); Manlcy v. Park, 68 Kans. 400 (1904)
 
 TANDY V. WAESCH 55 
 
 TANDY V. WAESCH. 
 
 Supreme Court of California, 1908. 
 
 154 Cal 108. 
 
 Hensiiaw, J. : Plaintiff sued to recover the sum of one thou- 
 sand dollars, paid on account of the purchase price of a piece of land 
 under contract with defendant, whereby defendant agreed to convey 
 the land by a title free and clear of all encumbrances. He averred 
 tliat defendants' title was encumbered by restrictions, reservations 
 and covenants.^^ 
 
 It was alleged that a reasonable time had been given to remove 
 these encumbrances, and that they had not been removed ; and, in- 
 deed, upon the trial, it w^as conceded that they w^ere still in exist- 
 ence. Defendant pleaded by answer and cross-complaint, calling in 
 as defendants to his cross-complaint, besides the plaintiff Tandy, 
 W. M. Garland and E. T. Ames. Trial was had, judgment passed 
 for plaintiff Tandy, and from that judgment and the order of the 
 court denying defendant's motion for a new trial, he appeals. _ 
 
 His principal contention upon appeal seems to be that as it was 
 disclosed and known to him that Tandy was acting as agent, and 
 that the defendant Garland w^as principal, the action should have 
 been brought by Garland, and can not be maintained in the name 
 of Tandy. Tandy, however, was a proper party plaintiff. To the 
 general rule laid down in section 367 of the Code of Civil Procedure, 
 that every action must be prosecuted in the name of the real party 
 
 overruling Stezvart v. Price, 64 Kans. 191 (1902), annotated in 64 L. R. A. 
 581 • Cassidv v. Woodward, 77 Iowa 354 (1889) ; Abell N. B. & Co. v. Hiird, 
 85 Iowa 559 (1892); Leon v. Building Assn., 14 Ariz. 294 (1912). Contra 
 Robbins v. Deverill, 20 Wis. 142 (1865) ; Bostwick v. Bryant, 113 Ind. 448 
 (1887); Hoagland v. Van Etten, 23 Nebr. 462 (1888); Brown v. Ginn, 66 
 Ohio St. 316 (1902); Guerney v. Moore, 131 Mo. 650 (1895); Sunon v. 
 Trummer, 57 Ore. 153 (1910). . , , r j 
 
 In California "a trustee to whom a chose in action has been transterred 
 for collection is, in contemplation of law, so far the owner that he may sue 
 on it in his own name." Toby v. Oregon P. R. Co., 99 Cal. 491 (1893) ; Cor- 
 telyou V. Jones, 132 Cal. 131 (1901). The amended code of 1901, § 367. 
 provided that a person to whom a cause of action has been assigned merely 
 for collection was not the real party in interest. But this clause fell when 
 the act adopting the amendments was held unconstitutional. Lewis v. Dunne, 
 134 Cal. 291 (1901). ^ 1 , , • . 
 
 In some cases it has been held, as at common law, that the assignment 
 of part of a claim does not permit the assignee to sue in his own name. 
 Smith V. Atkinson, 18 Colo. 255 (1893) Skobis v. Ferge, 102 Wis. 122 (1899) ; 
 In others the assignee mav sue, but the assignor ought to be joined. Cham- 
 bers V. Lancaster^ \to N. Y. 342 (1899) ; Singleton v. O Blenis, 12$ Ind. 151 
 (1890) ; Dean v. St. Paul & D. R. Co., 53 Minn. 504 (1893). 
 
 In South Carolina it has been said that the code "has not gone to the 
 extent of making things legally assignable that were not so before, but it 
 simply declares that when a transfer or an assignment has been made, 
 whicli in equity has the effect of making the assignee the real party in inter- 
 est, that then "such assignee must sue." Cliilds v. Alexander, 22 S. Car. 169 
 (1884). See also, Joseph Dixon Crucible Co. v. Paul, 167 Fed. 784 (1909)- 
 
 " Part of the opinion omitted.
 
 56 PARTIES 
 
 in interest, there are eertain exceptions spccilied in section 369 of the 
 Code of Civil Procedure. That section authorizes the trustee of an 
 express trust to sue without joining the beneficiary and declares that 
 a person with whom, or in whose name a contract is made for the 
 benefit of another, is a trustee of an express trust within the mean- 
 ing of this section. The contract having been made in Tandy's name 
 for the benefit of Garland, Tandy thus became the trustee of an 
 express trust and entitled to maintain tlie action. 
 Judgment affirmed.^- 
 
 ERVIN V. THE STATE, EX REL. WALLEY. 
 
 Supreme Court of Indiana, 1897. 
 
 150 Ind. 332. 
 
 ]\IcCabe, C. J. : The appellee sued the appellants to recover 
 money alleged to have been lost by William A. Walley, the relator's 
 husband, to the appellees by betting on a game called faro, under 
 §§ 6676, 6678 Burns' Rev. Stat. 1894 (4951, 4953, Rev. Stat. 1881). 
 The complaint was 'in five paragraphs, and the court overruled a 
 several demurrer by the defendants to each paragraph for want of 
 sufficient facts, and that the plaintiff had no capacity to sue. 
 
 A trial of the issues resulted in a verdict and judgment for 
 $5,414.50 over appellants' several and joint motions for a new trial. 
 The court also overruled appellants' motion to modify the judgment. 
 
 The errors assigned call in question these several rulings, and 
 also call in question the sufficiency of the complaint. ^^ 
 
 It is contended that the demurrers ought to have been sustained 
 because the action is not prosecuted in the name of the real party in 
 interest, namely, Nellie A. Walley, but is prosecuted in the name of 
 the state. It is conceded that the statute on which the action is 
 founded authorizes the prosecution of the action in the name of the 
 state for the benefit of the wife of the loser, under certain circum- 
 stances, but it is contended that such statute was passed prior to the 
 code, and that the code makes a different provision in relation thereto, 
 and must be deemed the last expression of the legislative will, and 
 controlling in this respect. Conceding, without deciding, that such 
 was the order of passage of the two statutes, and that the last act 
 would have the effect to modifv the first in so far as inconsistent 
 
 "Accord: Considerant v. Brisbane, 22 N. Y. 389 (iS^o) •,Seymo'.ir v. 
 Smith, 114 N. Y. 481 (1889) ; Citizens Bank v. Corkings, g. S. Dak. 614 
 (1897) ; Fidelity & C. Co. v. Ballard, 105 Ky. 253 (1899) ; Leach v. Hill, 106 
 Iowa 171 (1898) ; Davidge v. Trust Co., 136 App. Div. (N. Y.) 78 (1909) ; 
 Middleton v. Wohglemuth, 141 App. Div. (N. Y.) 678 (1910) ; Goodfellow v. 
 First National Bank, 71 Wash. 554 (1913). See also Mitchell v. St. Mary, 
 148 Ind. Ill (1897) ; Williams v. Julapa Co., 3 Alaska 222 (1906) ; Koch v. 
 Story, 47 Colo. 335 (1910) ; Portoghese v. Illinois Surety Co., 81 Misc. (N. 
 Y.) 211 (1913) ; 30 Cyc. 56. 
 
 " Only as much of the opinion as relates to the question of parties is 
 printed. The judgment was reversed on other grounds.
 
 FARNI V. TESSON 57 
 
 therewith, we do not think that there was any such inconsistency. 
 Section 251, Burns' Rev. Stat. 1894 (251, Rev. Stat. 1881), pro- 
 vides that: "Every action must be prosecuted in the name of the 
 real party in interest, except as otherwise provided in the next sec- 
 tion." The next section provides that: "An executor, adminis- 
 trator, a trustee of an express trust, or a person expressly author- 
 ized by statute, may sue, without joining with him the person for 
 whose benefit the action is prosecuted." The state is authorized 
 by the statute in question to sue for the benefit of another, and the 
 state is within the meaning of the last section of the code, if the 
 word "person" as used therein, may be held to include the state. 
 
 Among the rules for the construction of the code, it is provided 
 in § 1309, Burns' Rev. Stat. 1894 (1285, Rev. Stat. 1881), that: 
 "The word 'person' extends to bodies politic and corporate." Web- 
 ster defines the words "body politic" to be "The collective body of 
 a nation or state as politically organized, or as exercising political 
 functions ; also a corporation." 
 
 Therefore, we hold that the code does not require tlie action to 
 be brought in the name of the real party in interest, where, as here, 
 a person, the state, is expressly authorized by statute to sue without 
 joining the person for whose benefit the action is prosecuted.^* 
 
 \ 
 
 SECTION 3. JOINDER OF PARTIES. 
 
 (a) Plaintiffs. 
 
 FARNI V. TESSON. 
 
 Supreme Court of the United States, 1861. 
 
 66 U. S. 309. 
 
 Error to the Circuit Court of the United States for the North- 
 ern District of Illinois. 
 
 Tesson & Dangen recovered a judgment against Bontcum and 
 Carrey in the Circuit Court of Peoria County, Illinois, on the 12th 
 of September, 1857, for $8,000. On the same day an execution was 
 issued directed to Woodford County, and a levy was soon after 
 made on real and personal property. Bontcum and Carrey filed a 
 bill on the eqtiity side of the court for an injunction to stop further 
 proceedings under the judgment; and the injunction was directed 
 to issue according to the prayer of the bill, "upon the complainants 
 entering into bond in the penal sum of sixteen thousand dollars with 
 Christian Farni and Peter Farni, conditioned according to law." 
 A bond was accordingly executed, in which the two Farnis with 
 Bontcum and Carrey were the obligors, and Tesson, Dangen, Tuber, 
 Gareshe and Miner the obligees. This bond, it was conceded, was 
 
 ^* Atkinson V. Cawlcy, 112 Ga. 485 (1900); Swift v. Ellsworth, 10 Ind. 
 205 (1858).
 
 58 PARTIES 
 
 not framed in accordance with the order of the court, but upon its 
 being filed the injunction was issued. Afterwards the plaintiffs, per- 
 ceiving the insufficiency of their bond, had a new one executed, to 
 which tlie parties vv^ere the same as to the former one; but the con- 
 ditions were different. In October, 1858, the injunction was dis- 
 solved, and after some time the bill was dismissed. At December 
 term, 1858, Tesson brought suit on the second injunction bond 
 against Christian and Peter Farni in tlie Circuit Court of the United 
 States for the Northern District of Illinois. The suit was brought in 
 his own name as surviving partner of the firm of Tesson & Dangen, 
 omitting as plaintiffs the other three obligees to whom the bond had 
 been given, and making only two of the four obligors who executed 
 it defendants. To avoid the objection of nonjoinder of the other 
 obligees the plaintiff averred that he was the only one interested in 
 the judgment enjoined; that Miner, one of the obligees, w^as the 
 sheriff who held the execution enjoined, and the other obligees were 
 merely the agents or trustees of Tesson. 
 
 There was a trial and a verdict, and judgment for the plaintiff. 
 Before signing the bill of exceptions the judge put on record a writ- 
 ten explanation to the effect that the objection to the nonjoinder of 
 the proper parties, though made by the defendants on the trial, had 
 been understood by the court to have been waived, and was only 
 pressed upon a motion made to arrest judgment, when it was over- 
 ruled as merely technical. This overruled objection is the only 
 matter in the record to which the opinion of the Supreme Court was 
 addressed, and it has seemed necessary to state only such of the 
 facts as form a necessary introduction to that opinion. The defend- 
 ants sued out this writ of error.'' 
 
 Grier, J. : The bond being set forth at length in the declaration, 
 precluded the necessity of oyer, but did not relieve the pleader from 
 the mistake patent in his plea. He sues on a several covenant to pay 
 a sum of money to A, and shows a covenant to pay A, B and C 
 jointly. If one of the joint covenantees be dead, a suggestion of 
 that fact is sufficient to show a right to sue in the names of the sur- 
 vivors. If, by the condition, the money to be recovered be not for 
 the joint benefit of all, the suggestion of that fact can not alter the 
 obligation ; but will show only that, though all the parties to it should 
 join in the suit, and show a legal title to recover, the judgment will 
 be for the use of the party named in the condition, and equitably en- 
 titled to the money. The true reason for the course pursued by the 
 pleader in this case, though not alleged in the pleading, was, perhaps, 
 to give jurisdiction to the Circuit Court of the United States, by 
 omitting the names of obligees v/ho are citizens of Illinois. But it is 
 admitted that such a reason, even if alleged in the pleading, would 
 not have cured the omission. 
 
 It is an elemental principle of the common law, that where a con- 
 tract is joint and not several, all the joint obligees who are alive must 
 be joined as plaintiffs, and that the defendant can object to a non- 
 
 "The statement of facts is slightly abridged and the arguments of coun- 
 sel and a portion of the opinion omitted.
 
 

 
 FARNI V. TESSON 59 
 
 joinder of plaintiffs, not only by demurrer, but in arrest of judgment 
 under the plea of the general issue. 
 
 When there are several covenants by the obligors, as, for in- 
 stance, to "pay $300 to A and B, viz. : to A $ioo, and B $200," no 
 doubt each may sue alone on his several covenant.^® The true rule, 
 as stated by Baron Parke, is, that "a covenant may be construed to 
 be joint or several, according to the interests of the parties appearing 
 upon the face of the obligation, if tlie v^ords are capable of such a 
 construction ; but it will not be construed to be several, by reason of 
 several interests, if it be expressly joint." In this case, the covenant 
 is joint, and will admit of no construction. The condition annexed 
 can not affect the plain words of the obligation. 
 
 It has not been denied on the argument that such is the estab- 
 lished rule of the law and such the plain construction of tlie bond; 
 but it is insisted, that the court should disregard it as merely a tech- 
 nical rule, which does not affect the merits of tlie controversy. The 
 same reason would require the court to reject all rules of pleading. 
 These rules are founded on sound reason, and long experience of 
 their benefits.^'' 
 
 ^^ Dicey on Parties (2d ed.) 112, and see Withers v. Bircham, 3 B. & C. 254 
 (1824) ; Emery v. Hitchcock, 12 Wend. (N. Y.) 156 (1834) ; Keightley v. 
 Watson, 3 Exch. 716 (1849) ; Capen v. Barrows, 67 Mass. 376 (1854) ; Atlanta 
 R. Co. V. Thomas, 60 Fla. 412, 53 So. 510 (1910). 
 
 '' When a contract, whether by specialty or parol, is made with several 
 persons, if their legal interest is joint, they must, if living, join in an action 
 in form ex contractu for the breach thereof, i Chitty on Pleading (2d ed.)/<^ 
 9; Slingsby's Case, 5 Co. i8b (i597) ; Cahell v. Vaiighan, l Wm. Saund. 
 291 (1669) ; Eccleston v. Clipsam, i Wm. Saund. 153 (1669) ; Vaux v. Vatix, 
 Style 203 (1649) ; Anderson v. Martindale, i East 497 (1801) ; Sweigart v. 
 Berk, 8 S. & R- (Pa.) 308 (1822) ; Petrie v. Bury, 3 B. &. C. 353 T1824) ; 
 yfansel v. Morris, i Blackf. (Ind.) 307 (1824) ; Halliday v. Doggett, 6 Pick. 
 (Mass.) 359 (1828) ; Ehle v. Purdy, 6 Wend. (N. Y.) 629 (1831) ; Hatsall 
 V. Griffith, 4 T>tw. 487 (1834) ; Suy dam's Admr. v. Combs, 15 N. J. L. 133 
 (1835) ; Archer v. Bogue, 4 111. 526 (1842) ; Wctherell v. Langston, i Exch. 
 634 (1847) ; ^lary s v. Anderson, 24_ Pa. 272 ( 18=;=;) ; Phillips v. Henshazc, 5 
 Cal. 509 (1855); Calvert v. Bradley, 16 How. (U. S.) 580, 14 L. ed. 1066 
 (1853) ; Snefl v. DeLaiid, 43 111. 323 (1867) ; Titusv^Railroad, 5 Phila. (Pa.) 
 360 (1864) ; Dewey v. Carey, 60 Mo. 224 ( 1875 f\~l}d aster son v. Phinizy, 56 
 Ala. 336 (1876) ; Seymour v. Western R. Co., 106 U. S. 320, 27 L. ed. 103 
 (1880) ; Oshorn v. Martha's Vineyard Railroad Co., 140 Mass. 549 (1886) ; 
 Reynolds' Admr. v. Grier, 7 Houst. (Del.) 329 (1886) ; Sandusky v. Oil Co., 
 63 W. Va. 260 (1907) ; International Hotel Co. v. Flynn, 238 111. 636 (1909) ; 
 Weinfield v. Bergner, 114 N. Y. S. 284 (1909) ; McGaraj^_Ak ej^ 22b Pa. St. ^ -ii^u^ PA'^ 
 228 (1910) ; Silver v. Graves, 210 Mass. 26 (i9irn " ■ "" 
 
 On the death of a joint promisee the cause of action passes to the sur- 
 vivors who must all join in the suit, but the personal representatives of the 
 deceased obligee are not joined as parties. Smith v. Franklin, i Mass. 480 
 (1805); Vanderhenvel v. Storrs, 3 Conn. 203 (1819) ; Roane v. Lafferty, 5 
 Ark. 465 (1843) ; Jackson v. People, 6 Mich. 154 (1858) ; Doss v. Craig, i 
 Colo. 177 (1869) ; Donnell v. Manson, 109 Mass. 576 (1872) ; Thomas v. 
 Green County, 159 Fed. 339 (1908). On the death of the last survivor the 
 right of action passes to his personal representatives. Bebee's admr. v. Mil- 
 ler, Minor (Ala.) 364 (1824). 
 
 A contract can not be so framed at common law, as to give the prom- 
 isees the right to sue on it both jointly and separately. Eveleth v. Sawyer, 96 
 Maine 227, 52 Atl. 639 (1902); Bradburne v. Bot field, 14 M. & W. 559 
 (1845) ; Dicey on Parties (2d ed.) iii.
 
 6o PARTIES 
 
 It is no wrong or hardship to suitors who come to the courts for 
 a remedy, to be required to do it in the mode estabhshed by the law. 
 State legislatures may substitute, by codes, the whims of sciolists 
 and inventors for the experience and wisdom of ages ; but the suc- 
 cess of these experiments is not such as to allure the court to fol- 
 low their example. If any one should be curious on this subject, the 
 cases of Random v. Tohy (ii How. 517), of Bennet v. Butterworth 
 (11 How. 667), of McFaul v. Ramsey (20 How. 523), and Green v. 
 Custard (23 How. 484), may be consulted. 
 
 The judgment of the circuit court is therefore reversed, with 
 costs. 
 
 JOHN MOORE V. A. C. TERHUNE. -^ 
 
 Appellate Court of Illinois, Fourth District, 191 i. 
 
 161 ///. App. 155. 
 
 Duncan, J. : This was an appeal from a justice of the peace 
 court, and on a trial before the county court without a jury, judg- 
 ment was rendered in favor of defendants in error and against 
 A. C. Terhune, plaintiff in error, for $12 as damages and for $15 
 as attorney fees and for costs of suit. 
 
 The record shows that John Moore and Charley Cockrum be- 
 gan this suit jointly against the defendant to recover for wages due 
 them on an alleged contract to plaster a house for plaintiff in error. 
 Before the trial in the county court Charley Cockrum died, and his 
 death being suggested on the record, B. R. Cockrum, as his admin- 
 istrator, was substituted as party plaintiff, and the suit proceeded to 
 judgment with Moore and said administrator as joint plaintiffs. 
 
 The theory for joining Moore and Cockrum as plaintiffs seems 
 to have been grounded on the supposition that they were partners in 
 this contract of employment. The evidence for plaintiffs only tends 
 to prove that Moore and Cockrum were each separately hired by 
 the defendant at $1.50 per day and that they worked four days each. 
 No joint interest of any kind in the $12, for which judgment was 
 rendered, is shown by this record. The only evidence tending to 
 show a joint right to sue is one statement of Mr. Moore in his evi- 
 dence that "We were sorter partners." This was stated in answer 
 to the court's question : "Were you and Mr. Cockrum partners in 
 this w^ork?" All the other evidence as to their employments shows 
 separate contracts, and that there was no partnership between them. 
 It is elementary that an action at law can only be maintained by the 
 party or parties in whom the legal title exists, and no party should 
 be joined as plaintiff who has not a joint interest with the other 
 plaintiffs in the subject of litigation in actions ex contractu. Dix v- 
 Mercantile Ins. Co., 2.2 111. 272; Frye v. Bank of III, 5 Gilm. 332. 
 If they had been partners, on the deatli of Cockrum, Moore, the sur- 
 viving partner, would have taken the exclusive title to this debt and 
 all other assets for the payment of partnership debts, and the right
 
 I MC NULTY V. o'dONNELL 6i 
 
 to sue for same would have devolved upon him. Miller v. Jones, 39 
 111. 54; Finnegan v. Allen, 60 111. App. 354. 
 
 It is clear that if defendants in error have any right of action 
 against the plaintiff in error, they must maintain separate suits 
 against him. For the errors indicated in the foregoing, the judg- 
 ment is reversed and the cause remanded. 
 
 Reversed and remanded. ^^ 
 
 McNULTY V. O'DONNELL. .^ 
 
 Superior Court of P ennsylvania, 1905. 
 27 Superior Court Reports 93. 
 
 Appeal, No. 184, Oct. T., 1904, by defendant, from order of 
 C. P. Potter Co., June T., 1903, No. 284, refusing motion in arrest 
 of judgment in case of Mike McNulty and Thomas Moran for use 
 of Mike McNulty and John Mawn for use of Mike McNulty i. 
 Thomas O'Donnell. 
 
 Porter, J. : The record clearly establishes that the beneficial 
 plaintiff, McNulty, seeks to recover in a single action, brought in 
 the name of three legal plaintiffs, the damages alleged to have arisen 
 from the nonperformance of three distinct and independent con- 
 tracts, each one of which was entered into by the defendant with one 
 of the legal plaintiffs, individually and severally. The defendant 
 had entered into three several contracts for the purchase of apples 
 from McNulty, T. L. Moran and John Mawn, respectively, which 
 contracts were wholly disconnected, the respective vendors being 
 interested only in the contract for the sale of his own apples. After 
 the alleged default of the defendant, Moran and Mawn, respectively, 
 assigned tlieir claims to McNulty. The assignment of the personal 
 contracts by Moran and Mawn, respectWet}% *did not ^vest in theQ 
 plaintiff" the ri.!^ht to proceed for a nonperformance of those con- 
 tracts by an action in his own name, lie must sue in that of his 
 j^:']<^nor:. .Cimiuiings v. Lynn, 1 Dallas 444; Guthrie v. White, i 
 Dallas 26S; Robertson v. keed, 47 Pa. 115; Chitty's Pleading, vol.- 
 
 *' Accord: Smith and Taylor v. Hunt, 2 Chitty 142 (1818). Action for 
 work and labor. The defendant, a carrier, engaged the two plaintiffs to 
 assist him with their horses. Each had three horses and the six drew the 
 wagon. Nonsuit. Brand v. Boulcott, 3 B. & P. 235 (1802) ; Hall v. Leigh, 8 
 Cranch (U. S.) 50, 3 L. ed. 484 (1814) ; Withers v. Bircham, 3 B. & C. 254 
 (1824) ; Gould V. Gould, 6 Wend. (N. Y.) 263 (1830) ; Carter v. Carter, 31 
 Mass. 424 (1833) ; Seaton v. Booth, 4 Ad. & El. 528 (1836) ; Mvtinaer v . 
 Spritn^e^' , 3 W. & S.^ ^o5_ (i8zi2') ; Hinman v. Hapgood, i Den. (N. Y.) 188 
 (1845); Ford V. Bronaugh, 11 B. Mon. (Ky.) 14 (1850); Cleaves v. Lord, 
 6g Mass. 66 (1854) ; Masters v. Freeman, 17 Ohio St. 323 (1867) ; Germania 
 Fire Ins. Co. v. Hawks, 55 Ga. 674 (1876) ; Woodward v. Sherman, 52 N. H. 
 131 (1872); Mining Co. v. Bruce, 4 Colo. 293 (1878); Cofran v. Shepard, 
 148 Mass. 582, 20 N. E. 181 (1889); Starrett v. Gault, 165 111. 99 (1897); 
 Mcintosh V. Zaring, 150 Ind. 301, 49 N. E. 164 (1897) ; Brady v. Koonts, 145 
 111. App. 582 (1908) ; Atlanta & S. A. R. Co. v. Thomas, 60 Fla. 412, 53 So. 
 510 (1910).
 
 6- PARTIES 
 
 I, ch. I. The plaintiff recognized this rule, and as a result we have 
 in this case three le.ti^al plaintiffs: McNulty in his own right, Moran 
 to the use of McNulty and Mawn to the use of McNulty. The 
 legal plaintiff's had no joint right under any one of the contracts. 
 Moran and Mawn could not have brought a joint action against the 
 defendants upon the contracts which he had entered into with them 
 severally. And what they could not have done prior to the assign- 
 ment can not be done afterwards by their assignee, for the causes 
 of action have not been changed, and the legal plaintiff in any suit 
 ,upon either of tlie contracts must still remain the same. Three 
 legal plaintiffs can not maintain a joint action upon three uncon- 
 nected contracts, each one of which respectively has been entered 
 into by one of the respective legal plaintiffs, acting severally. The 
 evidence was in accord with the pleadings and presented nothing 
 which would have warranted an amendment under which a recov- 
 ery might have been sustained. The motion in arrest of judgment 
 should have been sustained: Lockhart v. Power, 2 Watts 371. 
 The judgment is reversed. 
 
 GALLATIN & W. TURNPIKE COMPANY v. FRY. 
 
 Supreme Court of Tennessee, 1889. )( 
 
 88 Tenn. 296. 
 
 Snodgrass, J. : The defendant in error sued the turnpike com- 
 pany for $2,000 damages for injuries to horses, resulting in the death 
 of one of them and destruction of a separator, alleged to have been 
 occasioned by defective and improperly constructed road. The de- 
 fense was "not guilty" and w^ant of property in plaintiff. There was 
 verdict and judgment against the company, and it appealed. 
 
 On the trial it appeared that the horse killed and the one injured 
 belonged, at the time of the accident, to plaintiff, but that the sep- 
 arator had been bought by plaintiff and John W. Parker from the 
 Aultman-Taylor Company, and these parties had given their notes 
 for it. 
 
 It also appeared that, in May, 1887 (the accident being in July 
 
 ■^ following, plaintiff and Parker had mortgaged it to the Aultman- 
 
 / Taylor Company. It was intended, on a fair construction of the 
 
 Smortgage, that the mortgagors were to retain possession and use the 
 
 'property. While so doing it was destroyed, or so wrecked as to be 
 
 entirely ruined in this accident. 
 
 Upon these facts the defendant insisted that the legal title was in 
 the Aultman-Taylor Company, and it alone could sue. 
 
 We think this contention not well founded, the mortgagor being 
 lawfully in possession until default. Jones oh Mortgages, § 440; 
 American Decisions, vol. XVIII, pp. 547 to 552, cases cited in 
 notes. 
 
 The defendant next objected that the right of action was in 
 Parker and Fry, and that there was no evidence to sustain a finding
 
 RHOADS V. BOOTH 63 
 
 in favor of Fry. To meet this objection below, and which is now 
 repeated here, plaintiff undertook to show, tliat, while nominally 
 the title was in himself and Parker, by an arrangement between 
 themselves, it was really in plaintiff alone. But plaintiff distinctly 
 swears this arrangement was after the accident. There was no evi- 
 dence to the contrary. 
 
 It therefore follows that there was no evidence to sustain the\ 
 claim of plaintiff to sole ownership when the injury occurred,_and / 
 the judgment must be reversed and case remanded for a new trial.^* \ 
 
 RHOADS V. BOOTH. . 
 
 Supreme Court of Iowa, 1863. 
 14 Iowa S75'° 
 
 Wright, J. : Upon the information of defendant the plaintiffs 
 in this action (three in number, but not partners), were arrested, 
 tried before a justice of the peace for larceny, and after due exam- 
 ination were discharged. They thereupon instituted this action to 
 recover damages for an alleged malicious prosecution. On the trial, 
 defendant, among others, asked these instructions : 
 
 First. The damages in the case, if any, are purely personal, that' 
 is, they appertain to each person separately, and unless some co- 
 interest or joint interest is shown, plaintiff can not recover. 
 
 **In actions ex delicto persons having a joint interest may sue jointly 
 for their joint damage, and they must join if the objection is made by plea 
 or answer. Y. B. 2 Rich. Ill ; M. T. 42 ; Winterstoke Hundred's Case, 3 Dyer 
 370a • Hiil V. Tucker, i Taunt. 7 (1S07) ■,Foote v. Cohin, 3 Johns (N. Y.) 
 215 3 Am. Dec. 478 (1808) ; Pickering v. Pickering, 11 N. H. 141 (1840) ; 
 Parker v. Parker, 83 Mass. 245 (1861) ; Reedcr v. Sayre, 70 N. Y. 180, 26 
 Am. Rep. 567 (1877); Little v. Harrington, 71 Mo. 390 (1880); Farnuni v. 
 Ewell 59 Vt. 327, ID Atl. 527 (1887); Sack v. Schimmel, 3 Fa Su per. Ct. 
 426 (1897) ; Armstrong v. Canady, 35 So. I3« (Aliss. 1903; ; hutler'v. RoyH- 
 ton, 117 Mo. App. 462, 74 S. W. 723 (1906) ; St. Louis R. Co. v. Webb, zb 
 Okla. 235 (1912); Moppar v. Wiltchik, 56 Misc. (N. Y.) 676 (1907)- For 
 the recovery of propertv all must join. Hart v. Fitzgerald, 2 Mass. 509, 3 
 Am. Dec. 75 (1807) ; Ellis v. Culver, 2 Harr. (Del.) 129 (1836) ; Rcinheimer 
 V. P/^^»»> /7'7n^3i 35 Pa /|37! rT86n'> ; Bray v. Raymond, 166 Mass. 146, 44 N. E. 
 '131 (1896); McCabe v. Transportation Co., 131 Mo. App. 531 (1908). 
 
 Persons with separate interests and, therefore, having the right to sue 
 severally may, if thev have sustained joint damage, join in an action ex 
 delicto. Coryton v. L'ithebv, 2 Saund. 115 (1671); Weller v. Baker, 2 Wils. 
 C. P. 414 (1769) ; Cook V. Batchelor, 3 B. & P. 150 (1802) ; Schuy lkill N._ 
 Co. V. Farr, 4 W. & S. (P aJ, 362 (1842) ; Le Fann v. Malconison, i H. L. 
 Cas. 637^^848) ; IVhite vTBascomb, 28 Vt. 268 (1856) ; Cleveland v. Grand 
 Trunk R. Co., 42 Vt. 449 (1869) ; Hays v. Farzvell, 53 Kans. 78, 35 Pac. 794 
 (1894) ; Mc lntire v. Westmoreland Coal Co., i>8 Pa. 108, 11 Atl. 8o8n (1888) ; 
 Eddv V. Lafayette, 49 ted. 8o>, i L. L. A. 441 { iHgj)'. 
 
 ^•Part of the opinion holding that the objection may be taken at any 
 stage of the case is omitted. Iowa is a code state, but the common law rule 
 is well summarized in this case.
 
 64 TAUTIES 
 
 Second. If a man commit a trespass and kill a horse, which 
 belongs to A and B jointly, then they can sue and recover in a joint 
 action. But if he, by the same act, kills two horses, one belonging 
 to A and the other to B, they could not, in a joint action, recover 
 the value of the horses. So in this action plaintiffs can only recover 
 such damages as tliey have jointly sustained. 
 
 By these and other instructions of a like import, defendant 
 claimed the rule to be, that plaintiffs could not maintain this action 
 unless they had a joint interest in the damages claimed, or the judg- 
 ment to be recovered. These were all refused, and such refusal is 
 now assigned for error. 
 
 The instructions should have been given. As a rule it is only 
 when two or more persons are jointly entitled to, or have a joint in- 
 terest in, the property affected, or the damages to be recovered, that 
 they can unite in an action. Therefore several parties can not sue 
 jointly for injuries to the personT^s Tor "sTa riderj^a^^ttery, or f ajse 
 imprisonment. For words spoken of parties in their joint trade, or 
 for slander of title, they may sue jointly; but not so when two or 
 more sue for slanderous words, which, though spoken of all, apply 
 to them all separately; or in a case of false imprisonment, or a ma- 
 licious prosecution, when each, as individuals, are imprisoned or 
 prosecuted. The principle underlying is, that it is not the act but the 
 consequences which are looked at. Thus, if two persons are in- 
 jured by the same stroke, the act is one, but it is the consequence of 
 that act, and not the act itself, which is redressed, and therefore the 
 injury is several. There can not be a joint action, because one does 
 not share in the suffering of the other, i Ch. PL, 64; 2 Saunders, 
 116, 117; 2 Bouv. Inst., p. 171. 
 
 Reversed.*^ 
 
 y 
 
 "* Accord: Ainsivorth v. Allen, Kerb}^ (Conn.) 145 (1786); Lcavet v. 
 Sherman, i Root (Conn.) 159 (1790). But expenses jointly incurred have 
 been recoverd in a joint action. Barrett v. Collins, 10 Moo. C. P. 446 (1825) ; 
 Pcchell V. Watson, 8 M. & W. 691 (1841). See also, Story v. Richardson, 6 
 Bingh. N. Cas. 123 (1839); Gazynski v. Colbiirn, 11 Cush. 10 (1853); 
 Bunker v. Tufts, S5 Maine 180 (1867) : Stepanck v. Kiila, 36 Iowa 563 (1873) ; 
 Columbia D. B. Co. v. Geisse, 38 N. J. L. 39 (1875) ; Robinett v. McDonald, 
 65 Cal. 611 (1884) ; Fonche v. Brower, 74 Ga. 251 (1884) ; Booth v. Briscoe, 
 L. R. (1877), 2 Q. B. Div. 496; .S"^ Louis R. Co. v. Dickerson, 29 Okla. 386 
 (1911) ; Jefferson Fertilizer Co. v. Rich, 182 Ala. 633 (1913)- 
 
 The common law before the judicature act of 1873 is, in Hanuay v. 
 Smnrtlnvaite, L. R. (1893) 2 Q. B. Div. 412, summarized by Lord Justice 
 Bowen as follows : "The rule was that, in the case of contract, all persons 
 with whom the contract sued on was made had to join as plaintiffs, and no 
 person could join himself as plaintiff in an action for breach of a contract 
 made by the defendant with another person. With regard to torts, I think 
 the law may be properly summed up as follows: persons who had a joint 
 interest were bound to sue jointly, while persons who had several interests 
 were bound to sue separately ; but where persons, although they might have 
 several interests, had sustained joint damage, they might sue jointly also." 
 
 As to the pleading of misjoinder and nonjoinder of plaintiffs, see Ames 
 Cases on Pleading (2d ed.) pages 133 to 143.
 
 BARNIER V. BARNIER 65 
 
 BARNIER V. BARNIER. 
 
 High Court of Justice for Ontario, 1892. 
 
 23 Ontario Rep. 280. 
 
 Ferguson, J. : The action is for the possession of the easterly 
 one-third of lot number three in the second concession of the town- 
 ship of Dover. The trial took place at Chatham upon admissions 
 made in open court and without any other evidence being given. 
 There are admissions in writing, signed by counsel, which were put 
 in. These, however, do not differ from the plain admissions made 
 at the bar. 
 
 The facts, then, on which judgment has to be given are as 
 follows : 
 
 The land came by devise from an owner of it to eight persons 
 as tenants in common. This tenancy in common was expectant 
 "upon the termination of a life estate in the whole, by the same will 
 given to the widow of the testator. This widow has died, and the 
 tenancy in common is now a tenancy in possession. The plaintiff 
 (not being one of the eight tenants in common who took under the 
 devise) purchased, and has had conveyed to him, five undivided 
 one-eighth shares of the land, one of such shares being the share of 
 the defendant, who was one of the original eight tenants In common. 
 Tlie' conveyance of this share was one made directly from the de- 
 fendant to the plaintiff. 
 
 The title of the plaintiff then is, and is admitted to be, a good 
 title to five undivided one-eighth shares in the land, all the shares 
 being equal. The defendant has now no title to the land or any of 
 the shares in it. He does not profess to have really any title to the 
 land or any part of it. It is admitted that he has not. His position 
 is simply this : He was in possession as tenant under a lease from 
 his mother, the widow of the testator, who had the life estate, and 
 after her death he remained in possession and is still in possession. 
 Upon being asked by the plaintiff to give the possession to him, he 
 answered by saying: "take possession of your five one-eight parts, 
 and I will continue in possession of the other three one-eighth parts" ; 
 and he confines his defense to such three one-eighth parts. The de- 
 fendant has not disputed, and does not now disptite, the right of the 
 plaintiff to possession as for and in respect of the five undivided one- 
 eighth parts or shares to which the plaintiff has title ; and the ques- 
 tion is as to whether or not the plaintiff can recover from the de- 
 fendant for the whole or more than in respect of the five-eighth 
 parts. 
 
 The Judicature Act has not, as I understand, made any material 
 change in the principles that govern the rights of the parties in an 
 action for the recovery of the possession of land; although it very 
 greatly changed the practice in such actions. 
 
 In the case Doe d Hellyer v. King, 6 Ex. at p. 795, Baron Piatt 
 is reported to have said: "Now, a tenant in common is the owner of 
 
 5 — Crv. Proc.
 
 66 TARTIES 
 
 the whole estate in common with his co-tenants ; therefore, as soon 
 as he has proved his risjht to the possession in common with others, 
 and that the defendant, having no such right, is a wrongdoer as 
 against him, he is, in my opinion, entitled to a general verdict, for 
 tlic purpose of recovering possession of the whole." This way of 
 considering such a case seems very reasonable and forcible; but the 
 learned Baron was the dissenting judge. The opinion of the other 
 two eminent judges was the opposite of this; and the language of 
 their judgments (especially that of Baron Alderson), leaves no 
 doubt that the opinion was that tenants in common who sue in 
 ejectment can recover (even from a trespasser), only in respect of 
 the shares to which they prove title. 
 
 In the case Denne d. Mozvyer v. Judge, ii East 288, there had 
 been live trustees for sale, whose title was joint. A conveyance had 
 been executed apparently by the five, but the signatures of only three 
 were proved ; it was received as a deed of the three. The court 
 said this had the effect of severing tlie joint estate, and of convey- 
 ing three-fifths of it to be held in common with the two remaining 
 parts. The plaintiff's in ejectment were depending on this title. A 
 verdict was had for the whole. A rule nisi was obtained to enter a 
 nonsuit or confine the verdict to the three-fifths. A verdict for the 
 three-fifths was ordered. 
 
 Both these cases are referred to with approval, and, as I think, 
 followed in the cases Lyster v. Kirkpatrick and Lyster v. Ramage, 
 26 U. C. R. 217 and 233, respectively. In each of these cases the 
 recovery w'as for two undivided third parts of the estate. 
 
 I do not see that what was decided in the case Doe d. Lulliam v. 
 Fenn, 3 Camp. 190, as against the decision above referred to. Even 
 if this were otherwise, the latter decisions should govern. 
 
 I may say that I have made very considerable search and perused 
 a large number of cases for authority supporting the view stated by 
 Baron Piatt, the dissenting judge in Doe d. Hellyer v. King, but I 
 can not say that I have found any, and none was referred to on the 
 argument. If I did not consider that the authorities bind me to do 
 otherwise, I should incline to adopt the reasoning of Baron Piatt in 
 that case. But I think I can not do anything other than say that 
 the present plaintiff (though the defendant has no title at all) can 
 recover possession only in respect of the five midivided one-eighth 
 shares of the land. These are the shares and the only ones to which 
 he has shown title. This possession the plaintiff might have had 
 (according to the admissions) without litigation before this action; 
 but, in my view, the defendant deserves little, if any, consideration. 
 Although there are some cases looking in that direction, I am not, I 
 think, bound to decide anything in his favor. 
 
 There will be judgment for the plaintiff for the five-eighths un- 
 divided, without any costs to either party.*- 
 
 " Accord: Dewey v. Brown, 2 Pick. (Mass.) 387 (1824); Mohcrly v. 
 Bruner, 59 Pa. 481 (1868) ; Kirk v. Bozding, 20 Nebr. 260, 29 N. W. 928 
 (1886); Butrick V. Tilton, 141 Mass. 93, 6 N. E. 563 (1886); Harrelson v. 
 Sarvis, 39 S. Car. 14, 17 S. E. 358 (1892) ; King v. Hyatt, 51 Kans. 504, 32 
 Pac. 1105, 37 Am. St. 304 (1893); Skinner v. Odetihach, 81 Hun (N. Y.)
 
 INGHAM LBR. CO. V. INGERSOLL 6/ 
 
 INGHAM LUMBER CO. v. INGERSOLL. . 
 
 Supreme Court of Arkansas, 1910. 
 93 Ark. 447-'" 
 
 Frauenthal, J. : This was an action instituted by Ingersoll & 
 Company, the plaintiffs below, against the Ingham Lumber Com- 
 pany, to recover damages for an alleged breach of contract. The 
 plaintiffs were a partnership, composed of J. W. Ingersoll and J. H. 
 Cobb, and the firm business was actively managed by said Ingersoll.' 
 On February 21, 1908, the plaintiffs instituted this suit, and on April 
 8, 1908, the said J. H. Cobb appeared before the clerk of the court in 
 
 315 (1894) ; Marshall v. Palmer, 91 Va. 344, 21 S. E. 672, 50 Am. St. 838 
 (1895); Baber v. Henderson, 156 Mo. 566, 57 S. W. 719, 79 Am. St. 540 
 (1900) ; Williams v. Coal Creek Co., 115 Tenn. 578, 93 S. W. 572, 6 L. R. 
 A. (N. S.) 710, 112 Am. St. 878 (1906), 5 Ann. Cas. 824. Contra: Clark v. 
 Vaughan, 3 Conn. 191 (1819) ; Robinson V. Roberts, 31 Conn. 145 (1862); 
 Hibbard v. Foster, 24 Vt. 542 (1852) ; Williams v. Sutton, 43 Cal. 65 (1872) ; 
 Truehart v. McMichael, 46 Tex. 222 (1876) ; Neivman v. Bank of California, 
 80 Cal. 368, 22 Pac. 261, 5 L. R. A. 467, 13 Am. St. 169 (1889) ; Mays v. Wit- 
 kowski, 46 La. Ann. 1475, 16 So. 478, (1894) ; Mather v. Dunn, 11 S. Dak. 
 196, 76 N. W. 922, 74 Am. St. 788 (1898) ; Winborne v. Elizabeth City Lum- 
 ber Co., 130 N. Car. 32 (1902) ; Field v. Tanner, 32 Colo. 278, 75 Pac. 916 
 (1904); Lamb v. Lamb, 139 Mich. 166, 102 N. W. 645 (1905); Bergere v. 
 Chavois, 14 N. Mex. 352 (1908); Lecroix v. Malone, IS7 Ala. 434 (190S) ; 
 Craver v. Mossbach, 57 Wash. 662 (1910) ; Hooper v. Bankhead, 54 So. 
 549 (Ala. 1911). 
 
 At common law, the title of tenant in common being several, they were 
 required to sue severally in real actions. White v. Pickering^ rz S^^. (Pa.^ 
 435 (1816) ; Decker v. Livingston, 15 Johns. (.iN.'Y.) 479~Ti8i8) ; Rand v. 
 Dodge, 12 N. H. 67 (1841) ; Throckmorton v. Burr, 5 Cal. 400 (1855). This 
 rule has been changed in many jurisdictions. Porter v. Beeiler, 17 Barb. 
 (N. Y.) 149 (1853); Hasbrouck v. Buncc, 62 N. Y. 475 (1875); Den v. 
 Brands, 15 N. J. L. 465 (1836) ; Wheat v. Morris, 21 D. C. 11 (1892) ; Pa. 
 Act of April 13, 1807, 4 Sm. L. 476; Commissioners v. Coleman, 108 111. 591 
 (1884). In personal actions tenants in common may join, and according to 
 some authorities, must join, when the injur\' is to the common estate, whether 
 ex contractu or ex delicto. Bac. Abr., tit. Joint Tenants, K; 38 Cyc. 120; Hill 
 V. Gibbs, 5 Hill (N. Y.) 56 (1843) ; May v. Parker, 12 Pick. (Mass.) 34 
 (1831) ; Suydam's Admr. v. Combs, 15 N. J. L. 133 (1835) ; Bullock v. Hay- 
 ward, 92 Mass. 460 (1865) ; Dubois v. Glaub, 52 Pa. 238 (1866) ; Kimball v. 
 Sumner, 62 Maine 305 (1873) ; Fell v. B^ennett_j no Pa. 181, _5 Atl. 17 
 (1885) ; Clapp V. Pawtucket Inst.^l^s'V^^ A^ (1887) ; Lottisville, N. A. & 
 C. R. Co. V. Hart, 119 Ind. 273, 21 N. E. 753, 4 L. R. A. 549 (1889) ; Jackson 
 V. Moore, 94 App. Div. (N. Y.) 504 (1904) ; Lumerate v. 5"^ Louis R. Co., 
 130 S. W. 448 (Mo. App. 1910) ; Fuhrman v. Interin Warehouse Co., 64 Wash. 
 159, 116 Pac. 666 (1911) ; Hughes v. Mendoza, 156 S. W. 328 (Tex. 1913). For 
 an injury to his several interest, a tenant in common may maintain a several 
 action. Hall v. Leigh, 8 Cranch. (U. S.) 50, 3 L. ed. 484 (1814) ; Cook v. 
 Brightly, 46 Pa, 439 (186^ ; Stall v. Wilbur, 77 N. Y. 158 (1879) ; McGhee 
 V. Alexander, 104 ATa. 116 (1893) ; Roberts v. Holland, L. R. (1893), i Q. B. 
 665; Boley v. Allred, 25 Utah 402, 71 Pac. 869 (1903). In Jefferson Fertilizer 
 Co. V. Rich, 182 Ala. 633 (1913), where the maintenance of a fertilizer plant 
 constituted a nuisance, it was held that tenants in common suing jointly 
 could recover damages which occurred to them jointly as owners of the 
 property, but could not recover for personal injuries suffered by each on ac- 
 count of the nuisance. 
 
 " The arguments of counsel and part of the opinion are omitted.
 
 68 PARTIES 
 
 vacation and filed a written statement dismissing the suit at the 
 phiintilT's cost. Thereafter, at the April term of tlie court, the said 
 J. W. Injjerstill tiled a motion to reinstate the suit. In this motion 
 he stated that he had the entire management of the partnership busi- 
 ness, and that Cobb had only a nominal interest therein, and had 
 advised and consented to the institution of the suit, that thereafter 
 he had consi^ircd and colluded with the defendant to defraud tlie 
 said Ingersoll by dismissing the action. The motion was supported by 
 aftidavits, and resisted by the defendant. After hearing the motion, 
 the court reinstated the suit. To this action of the court the said 
 J. H. Cobb made no objecion, and saved no exception, and does not 
 in this court enter any complaint. The lower court was not asked 
 to require the said Ingersoll to indemnify said Cobb against any 
 cost, or to permit tlie said Cobb to withdraw from the suit as a 
 party plaintiff or to be made a party defendant. Thereupon the de- 
 fendant filed its answer ; and upon a trial of the cause a verdict was 
 returned in favor of plaintiffs for $290 damages. The defendant 
 prosecutes this appeal. 
 
 It is urged by the defendant that the court erred in not permit- 
 ting tlie plaintiff, J. H. Cobb, to dismiss the suit and in ordering the 
 action to be reinstated on the motion of the plaintiff, J. W. Ingersoll. 
 The claim herein sued on grew out of a contract made with the 
 partnership, and therefore was a partnership asset. All the partners 
 had an interest in the subject-matter of the suit, and accordingly 
 were proper and necessary parties to the action. Kirby's Digest, 
 sec. 6065 ; 5 Encyc. PI. & Pr. 854; 30 Cyc. 561 ; Summers v. Heard, 
 66 Ark. 550; Hot Springs Rd. Co. v. Tyler, 36 Ark. 205; Matthews 
 V. Paine, 47 Ark. 54; Coleman v. Fisher, 67 Ark. 27. 
 
 The partnership contract was a joint contract, and therefore all 
 partners at the time the contract was made were jointly interested 
 therein. According to the common-law procedure, where one of the 
 ) several owners of a joint interest refused to join as plaintiff, the 
 / other owners were permitted to use his name as a co-plaintiff. 
 ' Gray v. Wilson, Meigs (Tenn.), 394; SjudgMJ /• Berk, 8 Serg. &^ 
 R. ("P a.) 308.,^ One of two or more co-plaintiffs has no right to dis-' 
 miss an action against the objection of the others unless it can be 
 shown that the prosecution of the suit would result injuriously to 
 him. In the event he might be injured by the prosecution of the suit, 
 upon his being indemnified against loss, the court will permit the 
 action to proceed. Where one partner is unwilling to join in a suit 
 I to enforce a partnership claim, the other co-partners have a right 
 I to use his name upon indemnifying him against loss, if indemnity is 
 Idemanded. 5 Encyc. PI. & Pr. 856. And in its sound discretion the 
 \court has a right to prevent the dismissal of a suit by one partner 
 where it appears that the dismissal will result in an injury to the 
 other partners, i Bates on Partnership, 383; 14 Cyc. 399; Cunning- 
 ham v. Carpenter, 10 Ala. 109; Loring v. Brackett, 3 Pick. (Mass.) 
 403 ; Daniel v. Daniel, 9 B. Mon. 195.'** 
 
 ""When the IcRal interest in a cause of action, whether it arises out of 
 tontract or is ex delicto, is joint, residing in several persons, all who are 
 living must join in the action founded on it. One or more of the parties may
 
 INGHAM LBR. CO. V. INGERSOLL 69 
 
 By our code (Kirby's Digest, 6007) it is provided that: "Of the 
 parties to the action, those who are united in interest must be joined 
 as plaintiffs ; but when, for any cause, it may be necessary for the 
 purpose of justice, a person who should have been joined as plain- 
 tiff may be made defendant, the reason therefor being stated in the 
 complaint." Under this provision, where a partner refuses to join 
 in an action to recover a claim of the firm, he may be made a party 
 defendant. 5 Encyc. PI. & Pr. 856.*^ 
 
 In the case at bar the claim sued on was founded upon a con- 
 tract made with the partnership, and all the partners joined in the 
 institution of the suit. Thereafter, one of the partners sought to dis- 
 miss the suit to the injury of the other partner. It was claimed by 
 the other partner tliat he conspired wrongfully with the defendant 
 to defeat him of his rights. Upon the hearing the court refused 
 to dismiss the action. The unwilling partner did not except to the 
 ruling of tlie court. He did not ask to be indemnified against costs 
 or loss. The defendant now is the only party who complains of 
 this action of the court. We do not think that the court abused its 
 discretion or erred in reinstating the cause. 
 
 Affirmed. 
 
 New York Code of Civil Procedure. 
 
 § 446. All persons having an interest in the subject of the action, 
 and in obtaining the judgment demanded, may be joined as plaintiffs, 
 except as otherwise expressly prescribed in liiis act.*^ 
 
 use the name of all in the commencement and prosecution of the action. If 
 others are unwilling to join in the prosecution, the unwillingness does not 
 authorize a dismissal of the suit. They can and will on a proper application, 
 be protected by an indemnity against costs, from those prosecuting the suit. 
 Per Brickell, C. J., in Harris v. Swanson, 62 Ala. 299 (1878). Accord: Cham- 
 bers V. Donaldson, 9 East 471 (1808) ; Sweigart v. Berk, 8 S.__& _R^X?a.) 308 
 (1822) ; Emery v. Mucklozv, 10 Bingh. 23 (i«33) ; ^yHttenead v. Hughes, 2 
 Dowl. P. C. 258 (1833) ; Johnson v. Holds-worth, 4 Dowl. P. C. 63 (1835) ; 
 Wright v. McLemore, 10 Yprg. (Tenn.) 235 (1837) ; Southzvick v. Hopkins, 
 47 Maine 362 (i860) ; IVinslozv v. Nezvlan, 45 111. 145 (1867); Williams v. 
 Pacific Surety Co., 66 Ore. 151 (1913)- ^ , r j 
 
 *^ Under code procedure an unwilling party is made a defendant. 15 
 Enc PI & Pr. 735; N. Y. Code Civ. Proc, § 446; New Jersey Practice 
 Act of 1912 P. L. 377, § 5; Cal. Code Civ. Pro., § 382; Nightingale v. 
 Scannell, 6 Cal. 506, 65 Am. Dec. 525 (1856) ; Allen v. Miller, 11 Ohio St. 
 374 (i860) ; Hopkins v. Lane, 2 Hun (N. Y.) 38 (1874) ; Hardy v. Miles, 
 91 N. Car. 131 (1884) ; Baron v. Lakozv, 121 App. Div. (N. Y.) 544 (1907) ; 
 Caylor v. Cooper, 164 Fed. 727 (1908). In England in case of a difference 
 between co-plaintiffs the proper course is to make an order that the name of 
 one of them should be stricken out as plaintiff and added as defendant. In re 
 Mathews, L. R. (1905) 2 Ch. 460. 
 
 ^'The word "judgment" has been substituted for "relief" which ap- 
 peared in the original code of 1848, and has been retained in most of the 
 codes founded on that of New York. Cal. Code Civ. Pro., § 378; Gen. 
 Code Ohio (1910) § II2S7; Burns' Ann. Stat. Ind. (1914) § 263; Iowa 
 Code § 3460; Wis. Stat. § 2602; N. Car. Code § 409; Cobbey's Comp. Stat. 
 Nebr. § 1036. 
 
 In England the rules of the Supreme Court provide: "All persons 
 may be joined in one action as plaintiffs, in whom any right to relief [in 
 respect of or arising out of the same transaction or series of transactions]
 
 70 PARTIES 
 
 § 448. Of tlic parties to the action, those who are united in in- 
 terest must be joinetl as phiintiffs or defendants except as other- 
 wise expressly prescribed in this act. But if the consent of any one, 
 who ought to be joined as a plaintiff, can not be obtained, he may be 
 made a defendant, the reason therefor being stated in the complaint. 
 And where the question is one of a common or general interest of 
 many persons ; or where the persons, who might be made parties, are 
 very numerous and it may be impracticable to bring them all before 
 the court, one or more may sue or defend for the benefit of all.*^ 
 
 INDIANA, BLOOMINGTON AND WESTERN RAILWAY 
 CO. z: ADAM SON. 
 
 Supreme Court of Indiana, 1887. 
 
 114 Ind. 282. 
 
 The plaintiffs, and appellees, stated in their complaint that they 
 and Nellie Adamson had entered into a contract with the defendant, 
 and appellant, by which they agreed to execute a quitclaim deed for 
 a strip of land for a railroad embankment in consideration of which 
 tlie defendant agreed to pay the plaintiffs and Nellie Adamson one 
 hundred dollars, and maintain a stone culvert through the river em- 
 bankment ; that the plaintiffs and Nellie Adamson had fully per- 
 formed their part of the contract ; that, Nellie Adamson had since 
 died and diat defendants in violation of the contract had failed to 
 put in the culvert. The defendants demurred on the ground that 
 neither the heirs nor representatives of Nellie Adamson were made 
 parties to the action.*^ 
 
 Elliott, J. : The process of elimination which we have pursued 
 
 is alleged to exist, whether jointly, severally, or in the alternative, [where 
 if such persons brought separate actions any common question of law or 
 fact would arise; provided that if upon application of any defendant it shall 
 appear that such joinder may embarrass or delay the trial of the action, 
 the court or a judge may order separate trials or make such other order 
 as may be expedient], and judgment may be given for such one or more 
 of the plaintiffs as may be found to be entitled to relief, for such relief as he 
 or thej- may be entitled to, without any amendment. But the defendant, 
 though unsuccessful, shall be entitled to his costs occasioned by so joining 
 any person who shall not be found entitled to relief unless the court or a 
 judge in disposing of the costs shall otherwise direct. Order XVI, rule I. 
 The parts in brackets were added after it had been decided in Smurthwaite 
 v. Hannay, L. R. (1894) App. Cas. 494, that the order dealt only with joinder 
 of parties and had no reference to joinder of causes of action. See Stroud 
 v. Lawson, L. R. (1898), 2 Q. B. Div. 44; Drincqhier v. Wood, L. R. (1899) 
 I Ch. Div. 393; Benning v. Deford Gas Co., L. R. (1907), 2 K. B. Div. 290; 
 Compania Sansincna D. C. C. v. Hoitlder, L. R. (1910), 2 K. B. Div. 354. 
 
 *' See generally Pomeroy's Code Remedies (4th ed.) p. 161 et scq. Cal. 
 Code Civ. Proc. § 382; Rem. & Ball. Wash. Code (1910) § 189; New Jersey 
 Practice Act of 1912, P. L. 2>77< §§ 4 and 5; Burns' Ann. Stat. Ind. (1914), § 
 270; Union Pacific R. Co. v. Vincent, 58 Nebr. 171 (1899) ; McCormac v. Wig- 
 gins, 84 N. Car. 278 (1881). 
 
 " The statement of facts is abridged from the opinion, of which only so 
 much as relates to the question of parties is printed.
 
 GRAY V. ROTHSCHILD 71 
 
 trims the case down to the question, whether under the code of civil 
 procedure, the survivors rnay bring an action on a joint contract 
 without joining the heirs or representatives of the deceased obUgee. 
 That they might have done so at common law is indisputable. Dicey, 
 Parties to Actions (2d ed.), p. 149. If the code has not changed 
 the rule they may still do so. 
 
 The question with which we have to deal is important, and not 
 entirely free from difficulty, but, after the most careful study we 
 have been able to give the subject, we feel bound to hold that the 
 code does not change the common-law rule. The question goes back 
 of the procedure and takes up the element of the right itself. The 
 right, the statute does not profess to change; it reaches only the 
 remedy. In the case of a joint contract the whole right — the unified 
 interest — vests in the survivors. Upon them falls the entire right. 
 If they do possess the entire right, then they are the real parties in 
 interest, since it is inconceivable that if they do possess the entire 
 right any other person can be a real party in interest. The principle 
 of the common law vesting the whole right in the survivors is not 
 changed by the code, and so long as the principle remains unchanged 
 the persons possessing this entire right must be regarded as the real 
 parties in interest. It requires legislation to abrogate a rule of law, 
 and the courts can not assume tlie functions of the legislature. 
 
 Mr. Pomeroy, who has, as strongly as any one, urged a liberal 
 construction of the code and an extension of its provisions, affirms 
 that the common-law principle has not been abrogated. In discuss- 
 ing this question he said: "In actions ex contractu, all the persons 
 having a joint interest must be made plaintiffs, and, when one of 
 them dies, the action must be brought or must proceed in the names 
 of the survivors ; the personal representatives of the deceased obligee 
 or promisee can not be joined as co-plaintiffs; and in the same man- 
 ner, in actions ex delicto for injuries to personal property, all the 
 joint owners must unite, and, if one of them dies, the action is to be 
 prosecuted by the survivors alone. These common-law rules remain 
 in full force." *^ 
 
 Judgment affirmed.^" 
 
 GRAY V. ROTHSCHILD. 
 
 Supreme Court of New York, 1888. 
 
 48 Hun (N.Y.) 596.'' 
 
 Daniels, J. : The plaintiffs consist of seven different firms, who 
 sold goods, at different times, to the defendants, Charles M. Roths- 
 
 *®Pomeroy's Code Remedies (4th ed.) p. 205. 
 
 ^^ Burkeit v. Lehmen Higginson Grocery Co., 8 Okla. 84 (1899) ; Buck- 
 man V. Brett, 35 Barb. (N. Y.) 596 (1861) ; Medlock v. Merritt, 102 Ga. 212 
 (1897) ; McNaniee v. Carpenter, 56 Iowa 276 (1881). In Natter v. Blanchard 
 Co., 153 App. Div. (N. Y.) 814 (1912), two persons were entitled to share 
 jointly a percentage o£ profits under a contract. In an action by one a demurrer 
 was svistaincd for nonjoinder of his copromissee. 
 
 " Part of the opinion is omitted. Affirmed by the Court of Appeals, 
 112 N. Y. 668.
 
 7- TAKTIKS 
 
 ohiKl and Jacob j\l. RothschiUl. who were co-parlncrs, carrying on 
 business in the city of New York under tlie name of Charles M. 
 Rothschild & Co. It was alleged, in support of their right to main- 
 tain a joint action against the purchasers of the goods, together 
 witli Jacob M. Rothschild and Abraham Rothschild, that the goods 
 had been obtained by means of false representations, and that the 
 purchasers, together with the two other defendants, had entered into 
 a conspiracy under which these goods, and others, were to be pur- 
 chased on credit, and the firm of Charles M. Rothschild & Co. were 
 to defraud the vendors out of the purchase-prices by removing, se- 
 creting and disposing of the goods, and that this conspiracy had been 
 carried into execution. The action was not for the recovery of the 
 goods themselves, or a rescission of the sales made, but for the re- 
 covery of damages amounting to tlie aggregate sum owing to the 
 several tirms, joined as plaintiffs, for the sale of their goods and 
 merchandise. The defendants demurred to the complaint, alleging 
 in suj^port of the demurrer, a misjoinder of plaintiffs; that causes of 
 action had been improperly united, and that the complaint did not 
 state facts sufficient to constitute a cause of action. And the court, 
 at the trial, sustained the demurrer on the ground of a misjoinder of 
 parties, and that several causes of action were improperly vmited in 
 the complaint. 
 
 The accuracy of this decision has been resisted by the plaintiffs, 
 chiefly under the authority of sec. 446 of the Code of Civil Procedure. 
 This section has provided that all persons having an interest in the 
 subject of the action, and in obtaining the judgment demanded, may 
 be joined as plaintiffs, subject to exceptions not required now to be 
 noticed. But this section of the code does not support the case, as 
 the plaintiffs disclose it by their complaint, for each one of the firms 
 in selling their goods, if the facts have been correctly set forth in 
 the complaint, is entitled to maintain a separate action for damages 
 against the purchasers and the two other persons implicated in the 
 conspiracy, and that is all the relief, as the facts have been presented, 
 which either one of the firms would be entitled to obtain. There is 
 no joint subject of action in this case, neither can any joint judg- 
 ment be recovered in the action under the authority of this section, 
 but each one of the firms have a separate and distinct cause of action 
 against the defendants, upon which, in case of a recovery, a separate 
 judgment would necessarily be entered. The subject of the action is 
 the recovery of the damages sustained by each one of the firms in 
 the sale of their own goods. Each sale was distinct from all the 
 others, and made upon fraudulent representations inducing such 
 sale. There was no concurrent or joint action by the several firms, 
 whose members have been joined as plaintiffs, in the sales of their 
 respective goods, but each firm proceeded and transacted the busi- 
 ness for itself. And for the value or price of its goods, if the facts 
 are truthfully alleged in the complaint, each firm is entitled to a 
 separate and distinct recovery. And no facts are alleged in the case 
 in any form which would secure to the plaintiffs joint relief by way 
 of a joint judgment. The case, by no construction which can be 
 placed upon this section of the code, is in such a condition as to be
 
 GRAY V. ROTHSCHILD 73 
 
 maintained by these several firms as the plaintiffs in one action, and 
 no other provision of the Code has gone so far as to permit separate 
 actions for damages to be prosecuted and sustained in this form. 
 
 Authorities have been assiduously collected and cited which are 
 relied upon as sustaining so broad a rule of practice, as to permit 
 this action to be sustained in its present form in behalf of all these 
 different firms. They are cases which have arisen in courts of 
 equity allowing actions to be maintained by persons severally inter- 
 ested in the subject-matter of the action and affecting all alike. In 
 that class of cases an action is allowed to be maintained by all par- 
 ties interested, in obtaining the same relief, but they have no appli- 
 cation to this action, for these different firms are not entitled to any 
 joint, or final relief by way of a single judgment; what they are 
 entitled to, if they can maintain their actions at all, is the damages 
 which each firm has sustained by means of the sale of its own goods 
 induced by fraudulent representations made to it. There is no joint 
 subject-matter to be either set aside or maintained, as there was in 
 the cases cited on the argument, and no joint interest in the action. 
 It is not proposed either to set aside or restrain the effect or prog- 
 ress of the alleged conspiracy, but all that is proposed is the recov- 
 ery of damages to be apportioned to the goods sold by each one of 
 these distinct and separate firms. The general principle so far as it 
 has been extended by courts of equity allows separate plaintiffs hav- 
 ing separate interests to join in an action for relief only where a 
 common object is to be secured by the prosecution of the action. 
 When that is not the case persons having distinct and independent 
 claims against the defendant can not join in a suit for the separate 
 relief of each. This was held in Murray v. Hay (i Barb. Ch. 59, 
 62). And the same principle was acknowledged in Ballon v. Inhab- 
 itants of Hopkinton (4 Gray 324), where it was declared by the 
 court that, if damages were claimed, each party must prosecute his 
 suit separately. And no broader rule was either intimated or sanc- 
 tioned in Cadigan v. Brozvn (120 Mass. 493). In Marselis v. Mor- 
 ris Canal Company (i Saxton N. J. Ch. 31), these principles were 
 very fully considered, and the court concluded that the authorities 
 permitted no greater extension of the rule than has already been 
 mentioned. In Ireland v. City of Rochester (51 Barb. 415) ; Scho- 
 field v. City of Lansing (17 Mich. 437), and Kennedy v. City of Troy 
 (14 Hun 308), the actions were for relief affecting a subject-matter 
 in which all the plaintiffs were interested in obtaining a single pre- 
 ventive judgment. And to avoid a multiplicity of suits, as but one 
 object was to be attained, they were allowed to join in securing the 
 relief necessary f.or the protection of their several interests. The 
 subject-matter was entirely distinct and separate from such an 
 action as this, in which only damages are claimed by each of the 
 firms.' In Smith v. Schulting (14 Hun 52), the complaint v/as sus- 
 tained against a demurrer upon the ground that it was to be in- 
 ferred, not only that the plaintiffs were severally entitled to the same 
 common relief against the same instrument, but that the release it- 
 self had been obtained from them by joint false representations. 
 And there the suit was maintained only so far as to avoid release.
 
 74 TAUTIES 
 
 And in Looniis v. Brown (i6 Barb. 325), the undertaking on which 
 the action was brought had been jointly entered into with, and for 
 the benefit of, the persons who had joined as plaintiffs in the action. 
 While in Ihitik't'rliojf v. Broum (6 Johns. Ch. 139), the decision pro- 
 ceeded no farther than to permit several judgment creditors who 
 were alike interested in setting aside a fraudulent disposition of 
 property by tlieir common debtor, to join in an action for that relief. 
 The case is entirely distinguishable from the present suit, for the 
 reason already mentioned that damages only are what these different 
 firms claim to recover, and those damages are strictly limited to their 
 own separate transactions. 
 
 The case of Goodiiigltf v. Goar (30 Ind. 418) is an authority di- 
 rectly against the plaintiff's action, for there it was held that a joint 
 action on an agreement by several persons to pay a proportionate 
 part of what either should pay for a substitute, in case either should 
 be drafted, could not be maintained. But that the suit for contribu- 
 tion must be maintained against each person separately who had 
 bound himself by the agreement. The case of Wood v. Perry (i 
 Barb. 114) is likewise opposed to the right of the plaintiffs to main- 
 tain this action jointly and so is that of Emery v. Erksine (66 Barb. 
 9), and, also, Hozvell v. City of Buffalo (2 Abb. Ct. of App. 412). 
 This decision has been assailed by the counsel for the plaintiffs as 
 erroneously made, but it has the support of the general principle 
 already mentioned, observed and enforced in courts of equity, that 
 persons having distinct and independent claims to relief can not, 
 unless the case is a peculiar one, join in the prosecution of one 
 action. There the property of the several plaintiff's had been sold 
 for the nonpayment of separate amounts assessed for an improve- 
 ment. The object of the action was to restrain the execution and 
 delivery by the city of certificates of sale, upon the allegation that 
 the assessments were unlawful. The certificates when issued would 
 affect only the property of each different owner. They would have 
 no joint effect upon any of the property. And it was held by the 
 court, chiefly for that reason, that the action could not be main- 
 tained, each plaintiff having only a separate and distinct right of 
 action for relief in which the others were in no manner interested 
 or identified. In all the cases containing any reference whatever to 
 separate and distinct claims for damages, the decisions have been 
 guarded by the conclusion previously stated, that a joint action by 
 several and distinct parties claiming several and distinct damages, 
 can not be maintained. Any other rule would be attended with so 
 much perplexity, intricacy and confusion at the trial, as to render 
 the jury before which the action must necessarily be tried next to 
 incapable of deciding and disposing of it. If this action could pro- 
 ceed to trial seven different causes of action would be presented for 
 the hearing and decision of the jury, and it would be extremely 
 difficult for them to carry in their minds anything like an intelligent 
 recollection of the evidence given, affecting so many different rights 
 of action. A rule allowing several and distinct firms to join in the 
 prosecution of one suit for damages would not only be attended 
 with the greatest embarrassment, but would result in probable in-
 
 HOME INS. CO. V. GILMAN 75 
 
 justice to one or more of the parties from misapprehensions or over- 
 sight of evidence. The demurrer was properly sustained at the trial 
 and both the judgment and order should be affirmed. ^^ 
 
 HOME INSURANCE COMPANY v. GILMAN. 
 
 Supreme Court of Indiana, 1887. 
 
 112 Ind. 7.'' 
 
 Mitchell, J. — A policy of fire insurance was issued to George 
 Sapp, the alleged owner of a store building, stipulating for insurance 
 against loss or damage by fire to the amount of fifteen hundred 
 dollars. 
 
 The policy contained the following stipulation: "Loss, if any, 
 under this policy, payable to W. W. Gilman, executor of the Rey- 
 nolds estate, as his interest may appear." 
 
 The complaint alleged that at the time the policy was issued, to 
 wit, on the 14th day of February, 1885, as, also, when the property 
 insured was destroyed by fire — February i6th, 1885, — Sapp was the 
 owner thereof, in fee simple, and that Gilman held a mortgage 
 thereon to secure a debt due him from Sapp, amounting to nine 
 hundred dollars. It also alleged that the amount of the loss ex- 
 ceeded the amount of the debt due Gilman. The appellant contends 
 that Sapp and Gilman can not maintain a joint action on this 
 policy, and hence that the court erred in overruling the demurrer 
 to the complaint. 
 
 The learned court below was of opinion that an action might 
 be so maintained, and, after hearing the proofs, rendered judgment 
 "that the plaintiffs do have and recover of and from the defendant 
 the sum of $1,537.51, and that of said sum William W. Gilman, as 
 executor of the estate of Henry Reynolds, deceased, shall* first re- 
 cover the sum of $949.51, and the plaintiff George R. Sapp shall 
 recover the residue." 
 
 The question is thus presented, whether after the loss Gilman 
 and Sapp had such a joint interest in the policy as entitled them to 
 join as plaintiffs in an action thereon? 
 
 "Accord: Cohh v. Monjo, 90 App. Div. (N. Y.) 85 (1904) ; Mining Co. 
 V. Bruce, 4 Colo. 293 (1878) ; Jeffers v. Forbes, 28 Kans. 174 (1882) ; Martin 
 V. Davis, 82 Ind. 28 (1882) ; Hellams v. Switser, 24 S. Car. 39 (1885) ; Fore- 
 man V. Boyle, 88 Cal. 290 (1891) ; Faivre v. Gillman, 84 Iowa 573 (1892) ; 
 Morton v. Western Union Tel. Co., 130 N. Car. 299 (1902). Action by three 
 for damages for mental anguish caused by faihire to deliver a telegram. 
 Norfolk & Western R. Co. v. Smoot, 81 Va. 495 (1886). Compare Mcintosh 
 V. Zaring, 150 Ind. 301 (1897). 
 
 There must be community of interest not only in the subject of action 
 but in the relief demanded. Keary v. Mutual Reserve Fund L. A., 30 Fed. 
 359 (1887) ; Central State Bank v. Walker, 7 Kans. 748 (1898) ; Brownwell 
 V. Irwin, 25 Ind. App. 395 (1900) ; Younkin v. Mihvaukee Light, H. & T. 
 Co., 112 Wis. 15 (1901). 
 
 °' Part of the opinion is omitted.
 
 y6 PARTIES 
 
 Section 262, R. S. 1881, provides that "All persons having an 
 interest in the subject of the action, and in obtaininrj the relief de- 
 manded, shall be joined as plaintiffs, except as otherwise provided;" 
 and by sec. 269 of the code it is enacted that "Of the parties in the 
 action, those who are united in interest must be joined as plaintiffs 
 or defendants," etc. 
 
 Section 568 provides that judgment may be given for or against 
 one or more of several plaintiffs, or for or against one or more of 
 several defendants, and that the "Judgment may, * * * when 
 the justice of the case requires it, determine the ultimate rights of 
 the parties on each side, as between themselves." 
 
 These statutes must be deemed to have modified the extremely 
 technical and arbitrary rules of the common law, in respect to par- 
 ties and the rendition of judgments. Their effect is, substantially, to 
 adopt the equitable rules of the chancery courts in regard to these 
 subjects and they require the application of those rules to each case 
 as it arises, whether it be of a legal or equitable character. Tate v. 
 Ohio, etc., R. R. Co., 10 Ind. 174; Goodnight v. Goar, 30 Ind. 418; 
 Pom. Rem., §§ 200, 215 ; i Works Pr. 98, 99. 
 
 At the common law it was essential that all tliose who appeared 
 on the record as plaintiffs should have an interest in the whole of 
 the recovery, so that a judgment in solido could be rendered in favor 
 of all the plaintiffs, as, also, against all the defendants. 
 
 This rule, never founded upon any substantial reason, has been 
 modified by the provisions of the code already referred to. Moyer 
 V. Brand, 102 Ind. 301, and cases cited. 
 
 While it has often been decided, under the code, that all persons 
 who join as plaintiffs must have an interest in the subject of the 
 action, and that it is necessary that they be united in interest (Dill 
 V. Voss, 94 Ind. 590; Faulkner v. Brigel, loi Ind. 329, and cases 
 cited), it does not follow tliat the interest of all must be equal, or 
 that their interests may not be legally severable. It is, of course, 
 not meant that two or more persons having separate causes of ac- 
 tion, although they arise out of the same transaction, and be 
 against the same defendant, may nevertheless unite in the same 
 action. W^here, however, there is, as was said in Tate v. Ohio, etc-, 
 R. R. Co., supra, "one common interest among all the plaintiffs, 
 centering in the point in issue in the cause, the objection of im- 
 proper parties can not be maintained," even though the amount of 
 their several interests be unequal, and even though they may be 
 entitled to several judgments, in respect to the amounts to be recov- 
 ered. All must have some common interest in respect to the subject- 
 matter of the suit and each must be interested that all have relief 
 in respect to that subject-matter. This creates such a unity of inter- 
 est as entitles parties so related to a particular subject-matter to 
 unite as plaintiffs in an action. Martin v. Davis, 82 Ind. 38. 
 
 In the case before us both parties plaintiff had, by contract, a 
 common interest that a recovery should be had upon the policy of 
 insurance. It was the interest of each that the other should recover, 
 as well as that he should recover himself. A recovery by the mort- 
 gagee enured to the benefit of his co-plaintiff, in that it established
 
 CLIMAX SPECIALTY CO. V. SENECA BUTTON CO. "Jj 
 
 a common right. The amount recovered by the mortgagee went in 
 hquidation of the mortgagor's debt, while a recovery by the latter 
 had a like effect upon the common right, and entitled the former to 
 receive payment out of the sum recovered as his interest in the fund 
 might appear. Each was, therefore, interested in the relief sought 
 by the other, and as both appeared upon the face of the policy to 
 have a common interest, neither being entitled to the whole fund, 
 it was proper for the protection of the defendant that both should 
 be parties. "It was not so material whether they were plaintiffs or 
 defendants, so that their rights under the contract would be barred 
 by the event of the suit." Morningstar v. Cunningham, no Ind. 
 328; Durham v. Hall, 67 Ind. 123; May Ins., § 449. 
 
 There was no error in overruling the demurrer to the com- 
 plaint.^*. 
 
 CLIMAX SPECIALTY COMPANY v. SENECA BUTTON 
 
 COMPANY. 
 
 Supreme Court of New York, 1907. 
 
 54 Misc. (N. Y.) 152." 
 
 Sutherland, J.: The plaintiff states in the complaint that the 
 action is brought "for the benefit of itself and of all others who are 
 similarly situated and interested in the questions involved herein and 
 who may contribute to the expenses of the same." The plaintiff's 
 cause of action as alleged may be briefly summarized as follows : 
 The plaintiff owns mills and water rights in the village of Seneca 
 Falls on the Dey race on the north side of Seneca outlet, also called 
 Seneca river, the water for which race is made to flow therein by a 
 wing dam across said stream. Farther up the stream is another dam 
 by means of which a portion of the water of said outlet is run into 
 what is known as the Sackett & Bascom race on the south side, the 
 water from which flows again through tail races into the outlet at 
 points mostly below the wing dam at tlie head of the Dey race. The 
 complaint alleges that the dam furnishing water for the Sackett & 
 Bascom race was built by the joint eff"orts and contributions of the 
 owners of hydraulic rights on both sides of the stream at that point, 
 and under an agreement that the waters diverted into the Sackett 
 & Bascom race should in no event exceed one-half the waters of 
 the outlet, and that the other half of the water should be reserved 
 
 "Accord: Winne v. Niagara Fire Ins. Co., 91 N. Y. 185 (1883). Com- 
 pare, where joinder was permitted, Loomis v. Brown, 16 Barb. (N. Y.) 325 
 (1853) ; Lasher v. North-Western Nat. Ins. Co., 18 Hun (N. Y.) 98 (1879) ; 
 Graves v. Merchants Ins. Co., 82 Iowa 637, 49 N. W. 65, 31 Am. St. 507 
 (1891) ; Trompen v. Yates, 66 Nebr. 525, 92 N. W. 647 (i9o'2) ; Judy v. Jester, 
 100 N. E. 15 (Ind. App. 1912), with joinder not permitted, Keary v. Mutual 
 Reserve Ins. Co., 30 Fed. 359 (1887) ; Swenson v. Moline Plow Co., 14 Kans 
 387 (1875) ; Tell v. Gibson, 66 Cal. 247, 5 Pac. 223 (1884) ; State v. Beasley, 
 57 Mo. App. 570 (1894). 
 
 '"^ Part of the opinion is omitted.
 
 78 PARTIES 
 
 for the mill owners on the Dey race, and that the dam thus con- 
 structed under such aj^rcement had been maintained for more than 
 twenty years in a condition to reserve for the proprietors on the 
 Dey race their one-half of the water flowing through said stream, 
 who used and claimed said half as their right during all that time, 
 but that the defendant corporation which has since acquired rights 
 upon the Sackett & Bascom race has wrongfully raised the dam serv- 
 ing the Sackett & Bascom race to such an extent that more than 
 one-half of the water is now diverted into the Sackett & Bascom 
 race, thus depriving the plaintiff and the other proprietors on the 
 Dey race of their due proportion of said water; and the plaintiff 
 demands judgment that the defendant be required to restore the dam 
 to its former condition, and be enjoined from interfering with the 
 due and accustomed flow of water into the Dey race, and that the 
 plaintifi' have such damage as it has incurred by reason of the 
 wrongful act of the defendant. 
 
 The defendant challenges the right to the plaintiff under the 
 facts stated to maintain an action for himself and other proprietors 
 of water rights injuriously affected by the act complained of. 
 
 Section 448 of the Code of Civil Procedure provides that all 
 persons united in interest must be joined as plaintiffs or defendants, 
 except as otherwise prescribed, but also states that "where the 
 question is one of a common or general interest of many persons 
 * * * one or more may sue * '''■ * for the benefit of all." 
 But in this respect the defendant urges first that the subject matter 
 of this action does not involve a question of interest common or 
 general to the owners in severalty of water rights on the Dey race 
 in the sense in which those words are used in section 448, and also 
 that it does not appear that there are "many persons" interested in the 
 question ; but as to the interest which the Dey race proprietors, 
 holding their respective lands in severalty, have in common or in 
 general respecting the invasion of their respective rights by the 
 wrongful act of the defendant in cutting off their common source 
 of supply, it would seem to be clear that that interest in the subject- 
 matter of this action and in the relief sought is of a kind which 
 would authorize them all to join as plaintiffs, if that method were 
 chosen, or each proprietor could sue alone; and one can sue for 
 all, provided the other condition named in section 448 requisite to the 
 bringing of such a representative action is fulfilled, viz. : that "many 
 persons" are so interested. Lawrence v. Whitney, 115 N. Y. 410; 
 Strohel v. Kerr Salt Co., 164 N. Y. 303; Pom. Code Rem. (4th ed.), 
 §§ 183, 289, old Nos. 269, 392. In respect to tlie number of persons 
 interested, the complaint does not state how many other owners of 
 water privileges there are on the Dey race. It does state that there 
 are "others," which would mean two, at least. In its demurrer in 
 this respect the defendant incorporates the statem.ent that there are 
 three other separate proprietors of water rights on the Dey race, 
 naming them. It was held, upon demurrer, after a review of many 
 authorities, in Hilton Bridge Construction Co. v. Foster, 26 Misc. 
 Rep. 338, that, where the question was one of common (but not 
 joint) interest to the three persons, one of them might sue for the
 
 CLIMAX SPECIALTY CO. V. SENECA BUTTON CO. 79 
 
 benefit of himself and the others under section 448 above quoted, the 
 quahty of the interest and not the number interested being the 
 controlhng feature; and that construction of the expression "many 
 persons" was sustained upon appeal by the Appellate Division of 
 the Third Department (42 App. Div. 630) ; and, although it would 
 seem at first sight that a condition requiring many persons is hardly 
 satisfied by three, nevertheless in respect to this particular section 
 that interpretation seems to be settled. The case of Baer v. Amer- 
 ican Rapid TelegrapJi Co. (36 Hun 400), cited by defendant's coun- 
 sel, is not in conflict. That was an action brought to remove trustees 
 appointed for five persons under a joint agreement, and the plain- 
 tiff, one of the five, did not make the other four parties, but stated 
 in his complaint that he brought the action on behalf of himself and 
 the others if they chose to come in; and it was held that the trustees 
 could not be removed without making all of the five beneficiaries 
 parties, as each of them had an interest in the maintenance of the 
 trust which could not be adjudicated upon and determined without 
 his presence as a party. Such a case is not analagous to the one at 
 bar, where the plaintifi^ could maintain a perfect action and obtain 
 a judgment adequate to his own needs without bringing in the other 
 proprietors holding distinct water rights and a similar cause of 
 action. 
 
 Demurrer to complaint overruled. ^^ 
 
 ^'^ For the history of this provision of the code see McKenzie v. L. Amou- 
 reux, II Barb. (N. Y.) 516 (1851) ; Piatt v. Colvin, 50 Ohio St. 703 (1893)- 
 The English rule is, "where there are numerous persons having the same 
 interest in one cause or matter, one or more of such persons may sue or be 
 sued, or may be authorized by the court or a judge to defend in such cause 
 or matter, on behalf or for the benefit of all persons so interested." Order 
 XVI, rule 9, Duke of Bedford v. Ellis, L. R. (1901) App. C. i; Taft Vale 
 Railway Co. v. Amalgamated Society R. S., L. R. (1901) App. C. 426. Com- 
 pare Markt V. Knight S. Co., 103 L. T. (N. S.) 369 (1910). 
 
 The code permits one or more to sue or defend for all (i) where the 
 question is one of common or general interest to many; (2) where the 
 parties are numerous and it is impracticable to bring them all before_ the 
 Court. The principal case illustrates the first class as well as McKenzie v. 
 L. Amoiireux, 11 Barb. (N. Y.) 516 (1851) ; Farman v. Barnum, 2 How. Pr. 
 (N. S.) (N. Y.) 396 (1885); Dumont v. Peet, 152 Iowa 524 (1911) ; 
 Kelly V. Tiner, 91 S. Car. 41 (1911) ; East Atlantic Land Co. v. Mower, 138 
 Ga. 380 (1912) ; Greer v. Smith, 155 App. Div. (N. Y.) 420 (1913) ; Whit- 
 more V. Water Co., 158 App. Div. (N. Y.) 178 (1913)- 
 
 In the second class of cases the courts do not seem to have laid down 
 any positive rule as to what will be regarded as an impracticable number 
 of parties. Compare George v. Benjamin, 100 Wis. 622 (1898) with Hodges 
 v. Nalty, 104 Wis. 464 (1899), and see Bird v. Lanphear, 11 App. Div. (N. 
 Y.) 613 (1896) ; Brainerd v. Bertram, 5 Abb. N. Cas. (N. Y.) 102 (1878) ; 
 Gnffanti v. National Surety Co., ip6 N. Y. 452 (1909) ; Tobin v. Portland Mills 
 Co., 41 Ore. 269 (1902) ; Frederick v. Douglas County, 96 Wis. 411 (1897) ; 
 Bronson v. Wilmington L. I. Co., 85 N. Car. 411 (1881) ; Whaley v. Ratcliff, 
 no Ky. 154 (1901) ; Penny v. Central Coal & Coke Co., 138 Fed. 769 (1905)- 
 See for the equity rule, Scott v. Donald, 165 U. S. 107 (1897). As to the right 
 of the plaintiff in a representative action to control the suit, see Hirshfield 
 v. Fitzgerald, 157 N. Y. 166 (1898) ; Salisbury v. Binghainton Publishing Co., 
 92 Sup. Ct. (N. Y.) 99 (1895).
 
 8o PARTIES 
 
 (b) Defendants. 
 
 NATIONAL BANK OF PHOENIXVILLE v. BUCKWALTER. 
 
 Supreme Court of Pennsylvania, 1906. 
 
 214 Pa. 289. 
 
 Appeal of plaintifif from an order of the Common Pleas of 
 Chester County, January Term, 1905, No. 73, refusing to take off 
 a nonsuit in the case of The National Bank of Phoenixville v. E. L. 
 Buckzvalter et al. 
 
 Assumpsit on a promissory note. Before Hemphill, P. J. 
 
 At the trial the court entered a compulsory nonsuit. On a mo- 
 tion to take off the nonsuit Hemphill, P. J., filed the following 
 opinion : 
 
 Upon the trial of this case a nonsuit was entered because of the 
 misjoinder of the parties defendant. The obligation upon which 
 suit was brought read as follows : 
 
 "$3,500. Phoenixville, Pa., January 11, 1902. 
 
 "Six months after date we promise to pay to the order of the 
 Tuxedo Pottery Company of Phoenixville, Pa., at the National 
 Bank of Phoenixville, thirty-five hundred dollars, without defalca- 
 tion, value received. 
 
 "It is agreed and distinctly understood, that each of the under- 
 signed is to be liable for only one-tenth of the above amount, viz: 
 three hundred and fifty dollars ($350). This obligation is given as 
 collateral security for notes discounted by said bank for said Pot- 
 tery Company or any renewals thereof to an amount not exceeding 
 $3,500, and to remain in force as long as any of said notes are 
 unpaid." 
 
 Then follow the signatures of E. L. Buckwalter and nine others, 
 all of whom were sued jointly in this action. 
 
 The general rule of law is thus stated in i Parsons on Contracts, 
 p. II : "Whenever an obligation is undertaken by two or more or a 
 right given to two or more, it is the general presumption of law that 
 it is a joint obligation or right. Words of express joinder are not 
 necessary for this purpose ; but, on the other hand, there should be 
 words of severance, in order to produce a several responsibility or 
 a several right." 
 
 So that had the writing terminated with the words "value re- 
 ceived," being the usual formal language of a promissory note, the 
 presumption of law would have been that the obligation was joint. 
 But when further on it expressly states that, "it is agreed and dis- 
 tinctly understood that each of the undersigned is to be liable for 
 only one-tenth of the above amount" — $350— these are words of 
 severance and make the responsibility of the signers several and not 
 joint. 
 
 Consequently they could not be held liable in the present suit, as 
 a verdict and judgment for the full amount, $3,500, against each and
 
 NATIONAL BANK V. BUCKW ALTER Ol 
 
 all, while the liability of each is distinctly stated to be but the one- 
 tenth of that sum. Again, if this were a joint obligation and nine 
 of the obligors should become insolvent, the remaining obligor would 
 be responsible for the whole amount," which would be contrary to 
 the agreement. 
 
 A case directly in point is Costigan v. Liint (104 Mass. 217), 
 where Costigan agreed to build a boat for Lunt and Cummings for 
 a certain sum, each to pay his one-half; and it was held that the 
 contract was not joint but several, the court saying: "His contract 
 was to build a boat for them, and when finished it was to belong to 
 them as tenants in common. But their promise to pay for it is sev- 
 eral and not joint. It is true that they expressed themselves in the 
 plural number and use the expression, 'we will pay', in reference to 
 the several installments that were to become payable at various 
 stages and upon the final completion of the contract. But the terms 
 of this promise must be considered as qualified by the stipulation 
 that each of the defendants is to pay one-half of the entire price in 
 installments. Taking the whole instrument together, it must be in- 
 terpreted as providing that each defendant shall pay one-half of each 
 installment, as it becomes due, and no more * * * It is very 
 plain that no judgment could be rendered against the two jointly 
 for any installment, without rendering them jointly and severally 
 liable for the amount and making each to that extent a surety for 
 the other, and for that reason that plaintiff is not entitled to such a 
 judgment." 
 
 A careful consideration of the case and examination of the au- 
 thorities has satisfied us that we were right in holding upon the 
 trial that the liability of the defendants was several and not joint, 
 and that consequently there could be no recovery against them in 
 "the present action. VVe must therefore refuse to take off the non- 
 suit and dismiss the rule. 
 
 Error assigned was refusal to take off nonsuit. 
 
 Per Curiam : The judgment is affirmed on the opinion of the 
 court below. ^^ 
 
 ®' Against several promissors separate actions must be brought. Livingston 
 V. Tremper, 11 Johns. (N. Y.) loi (1814) ; Watson v. Dickey, Tappan 
 (Ohio) 235 (1817) ; Tiittle v. Cooper, 10 Pick. (Mass.) 281 (1830) ; Gibson v. 
 Wood, 9 Bingh. 297 (1832); Toiirtelott v. Junkin, 4 Blackf. (Ind.) 483 
 (1838) ; Register v. Casperson, 3 Harr. (Del.) 289 (1840) ; Fell v. Goslin, 7 
 Exch. 185 (1852) ; Taylor v. Pierce, 43 Maine 530 (1857) ; Rowan_v. Rowan, 
 2Q Pa. 181 (1857) ; Fau'cet t v. Fell, 77 Pa. 3 8 (187^ ) ; Simmons v. Spencer, 3 
 McCrary (U. S.)"48, 9'Fed. 5^1 (1882) ; Davis v. Bedford, 70 Mich. 120 (1888) ; 
 Payne v. Jelleff, 67 Wis. 246, 30 N. W. ^26 (1886) ; B. & O. R. Co. v. Ganlter, 
 60 111. App. 647 (1895) ; Battle v. Atlantic C. L. R. Co., 132 Ga. 376 (1909) ; 
 Hough v. State Bank, 55 So. 462 (Fla. 1911). 
 
 in many jurisdictions by statute or code two or more persons severally 
 liable on the same written instrument or obligation may be included as de- 
 fendants in the same action at the plaintiff's option. 15 Encyc. o£ PI. & Pr. 
 741; Pomeroy's Code Remedies (4th ed.), p. 393 et seq. ; Costigan v. Lunt, 
 104 Mass. 217 (1870); Champlin v. Sperling, 84 Nebr. 633 (1909); N. Y. 
 Code Civ. Proc, § 454; New Jersey Practice Act of 1912, § 6. 
 
 6 — Civ. Proc.
 
 Sj parties 
 
 BRAGG V. WETZEL. r 
 
 Supreme Court of Indiana, 1839. 
 5 Black f. (Ind.) 95. 
 
 Error to the Union Circuit Court. 
 
 Blackford, J. — This was an action of debt for money lent, 
 brought by Zacheus Wetzel against Wilson Bragg. The suit orig- 
 inated before a justice of the peace. The justice gave judgment for 
 the plaintiff, and the defendant appealed. 
 
 In the circuit court, the defendant moved to dismiss the cause, 
 on the ground that one Smith ought to have been joined as a de- 
 fendant in the suit. The motion was overruled. The cause was 
 submitted to the court, and a judgment rendered for the plaintiff. 
 
 The writ issued against Bragg alone. The declaration is as fol- 
 lows: — "The plaintiff" complains of Wilson Bragg and Seneca 
 Smith, partners, trading under the firm name of Bragg & Smith, 
 of a plea that they render unto him one hundred dollars, which 
 to him they owe, and from him unjustly detain; for that whereas 
 the defendants, heretofore, to wit, on the 27th day of June, 1837, 
 at, etc., were justly indebted to the plaintiff in the sum of one hun- 
 dred dollars, for so much money lent to the defendants by the 
 plaintiff, and at their special instance and request; yet the defend- 
 ants, though often requested, have not, nor has either of them, paid 
 the said sum of money or any part thereof to the plaintiff; but to pay 
 the same and every part thereof, the defendants have at all times 
 refused, and still do refuse, to the damage," etc. 
 
 The plaintiff here shows by his declaration, that Smith, who is 
 not sued, is a joint party to the contract with the defendant, and 
 that Smith is living. It is impossible, under these circumstances, 
 that the plaintiff can recover. It is true, that since the case of Rice 
 
 (V. Shute (5 Burrows 261 1), the facts that tliere is a joint contractor 
 not sued, and that he still is alive, are generally required to be 
 pleaded in abatement ; but that rule has no application to cases like 
 ■ the one before us. Here the plaintiff, in his declaration, admits 
 those facts, and shows that he has no right to sue the defendant 
 alone. The suit should have been dismissed. The nonjoinder, in 
 \such a case as this, mav be taken advantage of on a motion in arrest 
 /of judgment, i Saund. 291, b, note 4; or it may be assigned for 
 (error, i Chitty's Plead. 53. 
 
 The judgment is reversed, and the proceedings subsequent to the 
 motion to dismiss the cause set aside, with costs. ^^ 
 
 "Accord: Cabell v. Vaughan, i Saund. 291 (1670); Byers v. Dohey, I 
 H. Bl. 236 (1789) ; Pike v. Dashiell, 7 H. & J. 466 (1824) ; Gilman v. Rives, 
 10 Pet. CU. S.) 298, 9 L. ed. 432 (1836) ; Needham v. Heath, 17 Vt. 223 (1845) ; 
 FJkin V. Moore, 613 B. Mon. (Ky.) 462 (1846) ; Page v. Brant, 18 111. 37 
 (1856) : Philade lphia v. Reeves, 48 Pa. 472 (18155) : Searles v. Reed, 63 Mich. 
 485, 29 N. W. 854T1886) ; Smith v. Miller, 49 TTTJ. L 521, 13 Atl. 39 (1887). 
 So, also, under the Codes joint promissors must be united as defendants, 
 Woostcr V. Chamhcrlin, 28 Barb. (N. Y.) 602 (1858); Tinkum v. O'Neale,
 
 BLESSING V. MC LINDEN 83 
 
 CHARLES A. BLESSING v. JAMES McLINDEN. 
 
 Court of Errors and Appeals of New Jersey, 191 i. 
 
 81 N. J. L. 379^ 
 
 Pitney, Chancellor: The record shows that Blessing, now 
 defendant in error, commenced suit in the Cape May Circuit Court 
 against WilHam H. Quigg and James McLinden (the latter now 
 plaintiff in error), to recover the amount due upon a judgment 
 theretofore rendered against them as co-partners in a court of rec- 
 ord of the State of Pennsylvania. Summons against both defendants 
 were issued to the sheriff of the county of Cape May, and to it the 
 declaration was annexed as permitted by the practice act. Pamph. 
 L. 1903, p. 564, 95. The sheriff returned that the summons and 
 declaration were served personally upon McLinden, and that Quigg 
 
 5 Nev. 93 (1869) ; Bledsoe v. Irvin, 35 Ind. 293 (1871) ; Jones v. Langhorn, 
 19 Colo. 206, 34 Pac. 997 (1893) ; Cox v. Gille Hardware & Iron Co., 8 Okla. 
 483, 58 Pac. 645 (1899) ; Sharpe v. Baker, 99 N. E. 44 (Ind. App. 1912) 
 except in those states which have abolished joint contract liability or have 
 adopted statutory modifications of the common-law procedure. Pomeroy's 
 Code Remedies (4th ed.) p. 288; 15 Encyc. PI. & Pr. 740; McKee v. Griffin, 60 
 Ala. 427 (1877) ; Morgan v. Brack, 104 Minn. 247 (1908). 
 
 Exceptions to the rule are recognized in some cases, as where one of 
 the parties is an infant, married woman or bankrupt. Dicey on Parties (2d 
 ed.) 249-51 ; Chandler v. Parkes, i Esp. N. P. 76 (1800) ; Hartness v. Thomp- 
 son, 5 Johns. (N. Y.) 160 (1809); Robertson v. Smith, 18 Johns. (N. Y.) 
 459, 9 Am. Dec. 22y (1821) ; Woodward v. Newhall, i Pick. (Mass.) 500 
 (1823). But the practice differs as to whether the party under disability 
 should be omitted in the first place, or joined with the right to discontinue 
 as to a defendant pleading a personal discharge. Goodhue v. Luce, 82 Maine 
 222, 19 Atl. 440 (1889) ; Slocum v. Hooker, 13 Barb. (N. Y.) 536 (1852). 
 
 At common law if a party to a joint contract died, his personal repre- 
 sentatives could not be sued with the survivors, the latter were sued alone. 
 Grant v. Shurter, i Wend. (N. Y.) 148 (1828) ; Burgoyne v. Ohio L. I. & T. 
 Co., 5 Ohio St. 586 (1855) ; May v. Hanson, 6 Cal. 642 (1856) ; Fisher v. 
 Allen, 36 N. J. L. 203 (1873) ; Livermore v. Bushell, 5 Hun (N. Y.) 285 
 (1875) ; New Haven & North Hampton Co. v. Hay den, 119 Mass. 361 
 (1876); Reed v. Summers, 79 Ala. 522 (i88q) : Githers v. Clarke, i.s8 _Pa_. 
 616 (1893) \ En^mim£!LJ^^_Finkey ^S Pa. P. R. 358 _(_i89^)- ^" the d^h of 
 the last survivor the action was brought agamst^his representatives alone. 
 Calder v. Rutherford, 3 Br. & Bingh. 302 (1822). Relief if necessary was 
 afforded in chancery. Burgoyne v. Ohio L. I. Co., 5 Ohio St. 586 (1855). 
 Compare United States v. Price, g How. (U. S.) 83, 13 L. ed. 56 (1850). 
 The rule has been modified by statute in many states. See Bownign's_admr\ 
 v._Kistler_,Z2> Pa. 10 6 (1 859) ; Taylor v. Taylor, 5 Hump. (Tenn.) no (1844) ; 
 Potts v. Dounce, 173 N. Y^ 335 (1903) ; Hogan v. Sullivan, 79 Vt. 36, 64 Atl. 
 234 (1905) ; Lee v. Blodget, 214 Mass. 374 (1913). 
 
 Where a joint debtor dies after suit is brought, statutes in most jurisdic- 
 tions provide for continuing the action against the personal representatives. 
 In Pennsylvania under the act of March 22, 1861 (P. L. 186) the plaintiff 
 may bring in the personal representatives and proceed to judgment against 
 them and the survivors, Dinc/man v. Am.sink. 77 Pa. 114 (1875), or he may 
 continue the action against the survivors- alone, Ash v. GuJe, 97 Pa. 40.^ 
 (1881). See N. Y. Code Civ. Proc, § 758; Gardner v. Walker, 22" How. 
 Pr. 405 (1861); Union Bank v. Mott, 27 N. Y. 633 (1863); Mulligan v. 
 O'Brien, 53 Misc. (N. Y.) 4 (1907), affirmed 119 App. Div. (N. Y.) 355 
 (1907). See also Thompson v. Johnsons, 40 N. J. L. 220 (1878); Revised 
 Statutes of United States, § 956; Moses v. Wooster, 115 U. S. 285 (1885). 
 
 °° Only extracts from the chancellor's opinion are printed.
 
 S4 PARTIES 
 
 could not he found in his county, and according to the information 
 and hehef of the sheriiY was a resident of the State of Pennsylvania. 
 
 The defendant, McLinden, appeared, and filed certain pleas, 
 which, on motion of the plaintiff, were struck out upon the ground 
 that tliey were sham and frivolous and did not set up any defense 
 to the action. 
 
 Judgment by default was thereupon entered in behalf of the 
 plaintiff, and against McLinden alone as defendant, for the amount 
 claimed to be due upon the Pennsylvania judgment, with costs. 
 
 The grounds relied upon for reversal are — first, that the circuit 
 court erred in striking out the pleas ; and, secondly, that the court 
 erred in rendering judgment against the defendant, McLinden, 
 alone, whereas it is insisted that under the "Act concerning obliga- 
 tions", approved March 2j, 1874 (Gen. Stat., p. 2336, § 2)"°, the 
 judgment, if any judgment was law^ful, should have been against 
 both Quigg and McLinden as co-partners. 
 
 The old I'lnglish practice respecting actions against joint debtors, 
 some only of whom could be served with process, was to proceed 
 to outlawry against the absent or absconding defendant, and having 
 done tliis to prosecute the action against the defendant who was 
 served, declaring against him alone upon a joint contract made by 
 him and the absentee, i Tidd Pr. (3d Am. from 9th London ed.) 
 ♦130, 131; I Chit. PI. (13th Am. from 6th London ed.) *42; 2 
 Id. *8. 
 
 But this practice did not rest upon the ground that the joint con- 
 tractor, who was within the jurisdiction, had any right to have his 
 fellow joined as defendant if the latter were without the jurisdic- 
 tion. The law did not deny a recovery against one joint contractor 
 because his co-contractor could not be served with process. The 
 nonjoinder of one of several joint contractors could be availed of 
 only by plea in abatement, and such plea must inform the plaintiff 
 of the names of the parties not joined, and must state that they were 
 still living unless this appeared on the face of the declaration. Rice 
 v. Shute, Burr. 261 1; i Smith Lead. Cas. (H. & W. ed.) *645 and 
 notes ; i Chit. PI. *43, 46 ; 2 Id. *90i ; Mershon v. Hohensack, 2 
 Zab. 372, 379; 3 Id. 580; Lieherman v. Brothers, 26 Vroom 379; 
 Die. Part. 11, 12. 
 
 Under the ancient practice, a plaintiff' who commenced his ac- 
 tion against one only of two joint obligors, where the other resided 
 beyond seas, subjected himself to the risk that the action might be 
 abated and he be put to the cost and delay of a new action with pro- 
 ceedings for outlawry. It was principally in order to avoid this 
 risk, and not because of any apprehension that the right of action 
 against the resident debtor would otherwise be in jeopardy, that a 
 
 "Re-enacting the act of 1771 (Allen 353) as revised by the act of 1782 
 (Wils. 311) which, substantially provided that where joint debtors were sued 
 judgment might be taken against the ones served and also against the others 
 not served. The New Jersey practice act of 1912, sec. 9, provides : "No ac- 
 tion shall be defeated by the nonjoinder or misjoinder of parties. New par- 
 ties may be added and parties misjoined may be dropped, by order of the 
 court, at any stage of the cause, as the ends of justice may require."
 
 BLESSING v. MC LINDEN 85 
 
 prudent plaintiff instituted his suit against both joint debtors and 
 took proceedings for outlawry, in the first instance, if one of the 
 joint debtors was absent or absconding. In some cases, no doubt, it 
 was deemed important to join the absentee in order either to en- 
 force a forfeiture of his property or to avoid waiving the right to 
 proceed against him in a subsequent action. See i Chit. PI. *46; 
 per Voltman, J., in JoU v. Lord Curzon, 4 Man. Gr. & S. (C. B.) 
 
 255- 
 
 The English practice was amended by statute 3 and 4 William 
 IV, ch. 42, § 8, which required that a plea in abatement for non- 
 joinder of a defendant should be accompanied by an affidavit stat- 
 ing the residence in England of the omitted defendant ( i Chit. PI. 
 *46), the practical effect of which was to prevent the resident 
 debtor from objecting to the nonjoinder of his co-obligor unless the 
 latter resided within the jurisdiction. Die. Part., rule 49, 230, 232. 
 And see our Practice act, section 38, Pamph. L., 1903, p. 545. 
 
 In our colonial times, proceedings to outlawry not being in use 
 here, the doubt arose that is referred to in the preamble of our act 
 of 1771, which was solved for this colony by requiring the resident 
 debtor to answer, and permitting judgment to be taken against him 
 and the nonresident together. (Pennsylvania adopted the simpler 
 solution of holding that as there was no process of outlawry in civil 
 actions, the return of non est inventus had the same eft'ect.^^ Dill- 
 man v. Shults, 5 S. & R. 35.) The effect of our act was to prevent 
 the abatement of the action for failure to proceed to outlawry 
 against the nonresident joint debtor, and to provide that the plaintiff 
 might take judgment against him as well as against the debtor who 
 was served with process. 
 
 Even prior to the adoption of the fourteenth amendment, how- 
 ever, it was well settled that if one of the debtors was not within the 
 state, not served with process, and did not voluntarily appear, the 
 judgment could not be enforced against him in any other jurisdic- 
 tion, even though by the lex loci a service on the co-obligor resident 
 within the jurisdiction were sufficient to authorize a judgment 
 against all. D'Arcy v. Ketcham, 11 How. 165; Thompson v. Whit- 
 man, 18 Wall. 457; Knowles v. Gas Light and Coke Co., 19 Wall. 
 58; Hall v. Lanning, 91 U. S. 160; Hanley v. Donoghiie, 116 U. S. 
 i; Renaud v. Abbott, 116 U. S. 2'/'/; Phelps v. Brewer, 9 Cush. 
 (Mass.) 390. 
 
 D'Arcy v. Ketcham, 11 How. 171, brought under consideration 
 a New York statute that provided that "where joint debtors are sued, 
 and one is brought into court on process, he shall answer the plain- 
 tiff; and if judgment shall pass for the plaintiff, he shall have judg- 
 ment and execution not only against the party brought into court, 
 but also against other joint debtors named in the original process, 
 in the same manner as if they had all been taken and brought into 
 court by virtue of such process; but it shall not be lawful to issue 
 or to execute any such execution against the body or against the sole 
 property of any person not brought into court." By the New York 
 
 •* See 10 P. & L. Dig. of Dec. 15919, 16 P. & L. Dig. of Dec. 27807.
 
 86 PARTIKS 
 
 courts it had been liekl that such judgment was vaHd and binding 
 on an absent defendant as prima facie evidence of the debt, reserv- 
 ing to him the right to enter again into the merits and show that he 
 ought not tt) have been cliarged. It was held by the Supreme Court of 
 the United States that the statute, and the judgment founded upon 
 it. were not bintling upon a citizen of Louisiana not served with 
 process in New York; that the judgment was not even prima facie 
 evidence in a Louisiana suit, and not entitled to any faith or credit 
 outside of the state in which it was rendered. 
 
 Until the adoption of the fourteenth amendment, however, it was 
 commonly held that a state might authorize a personal judgment, 
 good within its own territory, against one who had not been sub- 
 jected to the process of its courts by service of such process within 
 the jurisdiction. 
 
 But by that amendment it was (among other things) provided 
 that no state should deprive any person of life, liberty or property 
 without due process of law, and this was construed by the Supreme 
 Court of the United States in Pemioyer v. Nejf, 95 \J. S. 714, 733, 
 to deprive a personal judgment of all validity, either within or with- 
 out the state that rendered it, if it were rendered by a state court in 
 an action upon a money demand against a nonresident served by a 
 I)ublication of notice or summons, but upon whom no personal serv- 
 ice of process within the state had been made, and who had not ap- 
 peared to the action. 
 
 The result is that where one of two joint debtors resides within 
 this jurisdiction and the other is a nonresident, and is not found to 
 be served with process in this state, the plaintiff may have his judg- 
 ment against the resident debtor, omitting the other. This was tlie 
 practical ovitcome, in ordinary cases, under the common-law prac- 
 tice of outlawry. 
 
 We find it unnecessary to consider whether the principle of the 
 decision in Pennoyer v. A^'^'j^ would invalidate a judgment rendered 
 in conformity to our Joint Debtor's Act against one of the several 
 joint debtors (the others only being served with process), he being 
 a citizen and resident of this state. See Moulin v. Insurance Com- 
 pany, 4 Zab. 249, per Chief Justice Green. That precise question 
 does not require decision in order that the present case may be dis- 
 posed of. For we may properly make, and ought to make, every 
 reasonable intendment in favor of the validity of the judgment 
 under review, and therefore may legitimately assume, if necessary, 
 that the defendant Quigg was not a citizen or resident of this state, 
 and could not in any manner be rendered subject to its jurisdiction. 
 
 We, therefore, find no error in the entry of judgment against 
 the defendant McLinden alone. 
 
 Whether the plaintiff, by taking judgment against one only of 
 the joint debtors, debars himself from any future recovery against 
 the other, is a question that does not now concern us.**- There seems 
 
 **The New Jersey Practice Act of 1912, § 20, provides: "An unsatisfied 
 judgment against one or some of several joint contractors, shall not dis- 
 charge the other joint contractors from liability on the contract."
 
 BANGOR BANK V. TREAT 87 
 
 to be a conflict of authority upon the point. See Freem. Judg. (4th 
 ed.), 231, 233; Big. Estop. (5th ed.) 104. 
 
 The judgment under review should be affirmed."^ 
 
 BANGOR BANK v. TREAT. -/^ 
 
 Supreme Court of Maine, 1829. 
 6 Maine 207. 
 
 Mellen, C .J. : This is an action of assumpsit, and the declara- 
 tion states that the note was signed by the defendants and Allen 
 Oilman, jointly and severally ;~andniat a judgment had been recov- 
 ered on the note against Oilman in a several action against him. The 
 defendants have moved in arrest of judgment on accotmt of the 
 joinder of them in the present suit. When three persons by bond, 
 covenant or note jointly and severally contract, the creditor may 
 treat the contract as joint or several at his election; and may join 
 all in the same action or sue each one severally ; but he can not, 
 except in one case, sue two of the three, because that is treating the 
 contract neither as joint or several. But if one of the three be dead, 
 and that fact be averred in the declaration, the surviving two may 
 be joined. In the present case Oilman is living. The plaintiffs con- 1 
 tend tjiaLaS- judgment had been recovered against him, such judg-| 
 ment entitled them to join the other two in the same manner as 
 thotrgh he was dead. This is not so. Wlien they sued Oilman alone, 
 tHey'elected to consider the promise or contract as several and hav- 
 ing obtained judgment they are bound by such election. In case of 
 death, the act of Ood has deprived the party of the power of joining 
 all the contractors ; but he may still consider the contract as joint, j 
 and sue the surviving two. The plaintiffs have disabled themselves 
 from maintaining this action by their former one. i Saund. 2916. j 
 The objection is good in arrest of judgment, where the facts relied 
 on by defendants appears on the records, as in the present case. 
 
 Judgment arrested.®* 
 
 '^ See further Tappan v. Bruner, 5 Mass. 193 (1809) ; UjUnian y. Schultz, 
 5_S^ R^CPa.) \^ CiSiq) ; McCall v. Price, 1 McCord ( STCarrrH2"TiS2 iT; 
 Ivey V. Gamble, 7 Port. (Ala.) 545 (1838) ; Dennett v. Chick, 2 Maine 191, 
 II Am. Dec. 59 (1823) ; Merriman v. Barker, 121 Ind. 74, 22 N. E. 992 (1889) ; 
 N. Y. Code Civ. Pro., §§ 1932-33- 
 
 ^Accord: Ward v. Johnson, 13 Mass. 148 (1816); Fhonds V. Frederick^ 
 8 Watts (Pa-X448 .(183a} ; Claremont Bank v. Wood, 12 Vt. 252 (1840); 
 'Merrick v. Bank of Metropolis, 8 Gill. (Md.) 59 (1849) ; Stearns v. Aguire, 
 6 Cal. 176 (1836); Moore v. Rogers, 19 111. 347 (1857); Winslow v. Her- 
 rick, 9 Mich. 380 (1861) ; Cunimings v. People, 50 111. 132 (1869) ; New H. 
 R. Co. V. Hayden, 119 Mass. 361 (1876) ; Poullain v. Brown, 80 Ga. 27, 5 S. E. 
 107 (1887) ; Fay & Co. v. Jenks, 78 Mich. 312, 44 N. W. 380 (1889) ; .Scanlon 
 V. People, 95 111. App. 348 (1900) ; Gottfried B. Co. v. McDonald, 146 111. 
 App. 601 (1909); Goff V. Ladd, 161 Cal. 257 (1911). Contra: Glasscock 
 V. Hamilton, 62 Tex. 143 (1884). The dictum of Story, J., also contra in
 
 88 
 
 PART IKS 
 
 PAGE V. FREEMAN. yj' 
 
 Supreme Court of Missouri, 1854. 
 ig Mo. 421. 
 
 Scott. J.: This was an action lor an assault and battery. The 
 petition stated that the defendant conspired with, aided and abetted 
 a certain Jesse l-^dwards to assault, beat and otherwise ill treat and 
 abuse the plaintiff, and by and in consequence of such conspiracy, 
 aiding and abetting by said defendant, he, the said Jesse Edwards, 
 did assault, beat and otherwise ill treat and abuse the said plaintiff, 
 to the damage, etc. A demurrer was put in to this petition, which 
 was overruled, and the defendant answered, denying the allegations 
 therein contained. On a trial of the issue, there was a judgment for 
 the plaintiff for the sum of $147.50. Afterwards, the defendant 
 moved the court to compel the plaintiff to elect between the damages 
 recovered in this action, and tliose recovered against Jesse Edwards 
 in another action, for the same assault and battery, and produced a 
 record showing a recovery against Edwards for the same cause, 
 for the sum of two hundred dollars. This motion was overruled, 
 and the defendant appealed."'^ 
 
 In case of a joint trespass, the plaintiff may sue two or more of 
 them jointly, or may sue them separately, and may recover a judg- 
 ment against them. But for one trespass or wrong he can have but 
 one satisfaction. It is like a joint promissory note. A satisfaction 
 by one of the makers will discharge it. A trial and recovery against 
 one trespasser will be no bar to a trial and recovery against another. 
 But where separate actions are brought, as there can be but one 
 satisfaction, the plaintiff is put to his election between the verdicts, 
 and execution is sued out accordingly. If the plaintiff has received 
 satisfaction for the wrong done from Edwards, he can not recover 
 another satisfaction for the same wrong. If he has put himself in a 
 situation which prevents his election, it is his own act. The court, in 
 such case, would relieve the defendant, in the same manner as would 
 be done, should it be made to appear that one of the judgments or 
 executions against a defendant had been satisfied, i John. 290; i 
 Pick. 62. 
 
 United States v. Ciishman, 2 Sum. (U. S.) 426 (1836) is criticised in Clinton 
 Bank V. Hart, 5 Ohio St. 33 (1855). 
 
 Where one of the promissors in a joint and several contract dies, sepa- 
 rate actions may be brought against each of the survivors and the personal 
 representatives, or, all the survivors may be joined, but a joint action against 
 the survivors and the personal representatives of the deceased promissor can 
 not be maintained. Grant v. Shurtcr, i Wend. (N. Y.) 148 (1828); State 
 Treasurer v. Friott, 24 Vt. 134 (1852) ; Morehouse v. Ballon, 16 Barb. (N 
 Y.) 289 (1853) ; May v. Hanson, 6 Cal. 642 (1856) ; Eggleston v. Buck, 31 
 111. 254 (1863) ; Colt V. Learned, 133 Mass. 409 (1882) ; Seaman v. Slater, 18 
 Fed. 485 (1883). 
 
 "Part of the opinion is omitted.
 
 LOW V. MUM FORD 89 
 
 The other judges concurring, the judgment will be reversed, and 
 the cause remanded, and the circuit court directed to proceed in con- 
 formity to this opinion."^ 
 
 LOW V. MUMFORD. 
 
 Supreme Court of New York, 1817. 
 
 14 ]o]ms. (AT. F.) 426. 
 
 In error, on certiorari to a justice's court. 
 
 The plaintiff in error brought an action in the court below, 
 against the defendant in error, "for keeping up a mill-dam on the 
 Susquehanna river, below the lands of the plaintiff, whereby the 
 water of the river was set back and flowed the plaintiff's lands," 
 etc. The defendants pleaded in abatement, that the land on which 
 the mill-dam was erected, and the mills appurtenant thereto, were 
 held in joint tenancy by the defendants, together with several other 
 persons, (naming them), who were not made parties to the suit. 
 The plaintiff objected to the sufficiency of the plea, but the justice 
 gave judgment for the defendants. 
 
 Platt, J., delivered the opinion of the court. The general rule 
 on this subject is, that if several persons jointly commit a tort, the 
 plaintiff has his election to sue all, or any of them, because a tort is, 
 in its nature, a separate act of each individual, and, therefore, in 
 actions, in form ex delicto, such as trespass, trover, or case for mal- 
 feasance, against one only, for a tort committed by several, he can 
 not plead the nonjoinder of the others, in abatement or in bar. (i 
 
 '"Accord: Mitchell v. Smith, 4 Md. 403 (1853); Daily v. Redfern, i 
 Mont. 467 (1872) ; Fleming v. McDonald, 50 Ind. 467, 19 Am. Rep. 711 
 (1872). As to satisfaction, see Love joy v. Murray, 3 Wall. (U. S.) i, 18 
 L. ed. 129 (1865) ; Sessions v. Johnson, 95 U. S. 347 (1877) ; Seitherw Phila- 
 delphia Traction Co., 125 Pa. St. 397, 17 Atl. 338, 4 L. R. A."l4rii Am. St. 
 
 ~905 (1889^ ; 7 . . . . 
 
 Generally, in actions ex declicto, the plaintiff may at his election proceed 
 against the joint tortfeasors in one action or he may sue them severally. 
 "One, or any, or all of several joint wrong-doers may be sued." Dicey on 
 Parties (2d ed.), p. z^48. Pencavin v. Trappin, Latch 262; Hardyman v. Whit- 
 aker, 2 East 573n (1782) ; Livingston v. Bishop, i Johns.. (N. Y.) 1290, 3 Am. 
 Dec. 330 (1806) ; Patten v. Gurney, 17 Mass. 182, 9 Am. Dec. 141 (1821) ; 
 Orange County Bank v. Brown, 3 Wend. (N. Y.) 158 (1829) ; Allen v. 
 Wheatley, 3 Blackf. (Ind.) 332 (1834) ; McGee v. Overby, 12 Ark. 164 
 (1851) ; Klandcr^ i! McGrath. 35 Pa. 128, 78 Am. Dec. 329 (i860) ; Bryant v. 
 Bigelow Carpet Co., 131 Mass. 491 (18S1) ; Peoria v. Simpson, no 111. 294 
 (1884) ; McMullin v. Church, 82 Va. 501 (1886) ; Allison v. Hobbs, 96 Maine 
 26, 51 Atl. 245 (1901) ; Mangan v. Hudson R. Tel. Co., 50 Misc. (N. Y.) 388 
 (1906) ; Hough v. .Southern R. Co., 144 N. Car. 692 (1907) ; Tandrup v. 
 Sampsell, 234 111. 526 (1908) ; Gawne v. Bicknell, 162 Fed. 587 (1908) ; Gold- 
 stein V. Titnick, 59 Misc. (N. Y.) 516 (1908) ; Cole v. Roebling Construction 
 Co., 156 Cal. 443 (1909) ; Helberg v. Hosmer, 143 Wis. 620 (1910) ; Lynch v. 
 Chicago, 152 111. App. 160 (1909) ; Sparrow v. Bromage, 83 Conn. 27 (1910) ; 
 Johnson Co. v. Philadelphia, 236 Pa. St. 510 (1912) ; Webber v. Jonesville, 
 94 b. Car. 189 (1912) ; Rogers v. Ponet, 21 Cal. App. 577 (1913) ; Chicago 
 G. IV. R. Co. V. Hulbert, 205 Fed. 248 (1913).
 
 90 TART IKS 
 
 Chilly's rioad. 75.) There is a dislinction, however, in some cases, 
 between mere personal actions of tort, and snch as concern real 
 property (i Chitty Plead. 76). In the case of Mitchell v. Tarbutt, 
 (5 Term Rep. 65), Lord Kenyon recognizes this distinction and says : 
 "Where there is any disjiute about the title to land, all the parties 
 must be brought before the court." A case in the year books (7 Hen. 
 W, 8) shows that a plea in abatement may be well pleaded for this 
 cause, to an action on the case, for a tort. An action of trespass on 
 the case was brought against the abbot of Stratford, and the plaintiff 
 counted that the defendant held certain land, by reason whereof 
 he ought to repair a wall on the bank of the Thames ; that the plain- 
 tiff had lands adjoining, and that for default of repairing the wall, 
 his meadows were drowned. To which Skrene said, "It may be that 
 the abbot had nothing in the land, by cause whereof he should be 
 charged, but jointly with others, in which case the one can not an- 
 swer without the other." 
 
 But in actions for torts relating to lands of the defendants, there 
 seems to be ground or this further distinction, viz., between nui- 
 sances arising from acts of malfeasance, and those which arise from 
 mere omission, or nonfeasance. The case of the abbott of Stratford 
 w'as that of a nuisance, arising from neglect of duty in not repairing 
 the wall, which was by law enjoined on the proprietor or proprietors 
 of the land on which the w^all stood. The gist of the action, there- 
 fore, was, that the defendant was such proprietor, and had neglected 
 a duty incident to his title. The title to the land, on which the nui- 
 sance existed, was, therefore, directly in question ; for if the abbot 
 Avas not the owner of the land, he was not chargeable with neglect, 
 nor liable for the nuisance. But in this case, the action is for a 
 nuisance arising from an act of misfeasance the "keeping up a mill- 
 dam on a stream below the plaintiff's land." Here needs no aver- 
 ment that the defendant owned the land on which the dam was 
 kept up. The title to that land can not come in question in this suit, 
 for the maintaining such a dam is equally a nuisance, and the de- 
 fendants are equally liable for damages, whether the defendants 
 own the land as joint tenants w'ith others, or Avhether they are sole 
 proprietors, or whether they have any right whatever in it. "Keep- 
 ing up" the dam implies a positive act of the defendants ; it is a mal- 
 feasance, and therefore the plaintiff has a right of action against all 
 or any of the parties who keep up that dam. Unless the title comes 
 in question, there is no difference, in this respect, in cases arising 
 ex delicto, between actions merely personal, and those which con- 
 cern the realty. The plaintiff, in such an action, is always bound to 
 join his cotenants, because his title must come in question as the 
 foundation of his claim ; but he may sue any or all who have done 
 the tortious act. The justice, therefore, erred in deciding against 
 the demurrer to the plea, in abatement, and the judgment must be 
 reversed. 
 
 Judgment reversed.^^ 
 
 •"Accord: Sumner v. Tileston, 4 Pick. (Mass.) 308 (1826) and see 
 Elliott V. McKay, 49 N. Car. 59 ( 1856) ; Karrcn v. Rainey, 30 Utah 7, 83 
 Pac. 2Z3 (1905) ; Baker v. Fritts, 143 111. App. 465 (1908).
 
 CHAMBERLAINE V. WILLMORE 91 
 
 CHAMBERLAINE v. WILLMORE. 
 
 In the King's Bench, 1622. 
 
 Palmer's Reports 313."' 
 
 An action on the case was brought against two for these words : 
 "Thou hast stolen plate from Cambridge of J. S. and we do arrest 
 thee of flat fellony." and upon the general issue it was found for the 
 plaintifif; and moved in arrest of judgment that it does not lie 
 against the two jointly, because the words of one are not the words 
 of the other ; but there should have been several actions, just as two 
 can not bring a joint action for words. Dy. 19. And so it was re- 
 solved by the court, that these several causes could no more pro- 
 duce a joint action, than their words and tongues and tort can be 
 said to be one; and for this reason the judgment was arrested by the 
 court."^^ 
 
 ^ HENRY NIERENBERG AND EMIL ZUKUGMAN v. 
 
 • JAMES WOOD. 
 
 Supreme Court of New Jersey, 1896. 
 
 59 N. J. L. 112. 
 
 On certiorari to the Court of Common Pleas of Passaic County. 
 
 Gum MERE, J. : This action was brought by Wood, the plaintiff 
 below, against the prosecutors, Nierenberg and Zukugman, jointly, 
 to recover compensation for damages done by two dogs, one owned 
 by Nierenberg. and the other by Zukugman, in trampling down and 
 destroying cabbage plants, beans, etc., which were growing in 
 Wood's close. The property was all destroyed at the same time, the 
 two dogs uniting in committing the mischief, and a judgment was 
 entered in the court below against the prosecutors by which each was 
 made responsible for the whole of the injury done. 
 
 ^ S. C. sub nom. Chamberlain v. White, Cro. Jac. 647. 
 
 *° Accord: Burcher v. Orchard, Style 349 (1652) semble ; Glass_v,_Stew- 
 art. 10 S. & R. (Pa.) 222 (1823); Webb v. Cecil, 9 B. Mon. (Ky.) 198, 48 
 Am. Dec. 42^ (1848): Carvillv Cochran, i Phi l_a._XPaJ_ 399 (1852) ; For- 
 syth V. Edminston, 6 Duer. (JM. Y.) 653 (i^sbY\ Bnz::a rd v. Guest, 7 Mont; 
 gomery Co. L. Rep. (Fa.) 197 (1891) ; Blake v. SlmtTT, i9T^Tr47^(i896) ; 
 Gaftts v.Xelgo, 125 JN. Lar. 133, 34 S. E. 246 (1899) ; Harriott v. Plimpton, 
 166 Mass. 585, 44 N. E. 992 (1896) ; Singer M. Co. v. Taylor, 150 Ala. 574 
 (1907) ; Smith v. Agee, 59 So. 647 (Ala. 1912) ; Niinnamaker v. Smith, 80 
 S. E. 465 (S. Car. 1914). Otherwise in libel. Thomas v. Rumsey. 6 Johns. 
 (N. Y.) 26 (1810) ; Miller v. Butler, 60 Mass. 71, 52 Am. Dec. 768 (1850) ; 
 Leidig v. Bucher, 74 Pa. 65 (1873). 
 
 Green V. Uavies, 182 IN. V. 499, 75 N. E. 536 (1905) holds that if two 
 slanders are uttered in pursuance of a common agreement between the par- 
 ties that such slanders shall be uttered, tlien each is jointly liable with the 
 other for the utterance.
 
 92 PARTIES 
 
 The theory upon which the suit was tried and judgment ren- 
 dered seems to have been that, as the loss suffered by the plaintiff 
 was the result of the joint act of two doi^s, their respective masters 
 stood in the same ])osition, so far as liability to respond for the 
 damai::^e done was concerned, as if they j)crsonally had broken and 
 entered the j^laintiff's close and destroyed his growing plants. 
 
 But the reason which makes one who personally aids in or abets 
 the wrong done by another liable for the whole amount of the 
 injury done, does not apply in a ca>se like that under consideration. 
 
 In the case of a joint tort, each offender's liability arises out of 
 tlie fact that his participation in the wrongful act was voluntary 
 and intentional, and the law, as a punishment for his wrongdoing 
 as well as for the protection of the rights of the injured party, 
 makes him answerable for all the consequences of that act. But in 
 tlie case of animals which wander off and unite in perpetrating mis- 
 chief, there is no actual culpability on the part of their owners. 
 Liability in such a case only exists by reason of the negligence of the 
 owners in permitting their animals to stray away and commit the 
 depredations, and it has, therefore, always been held, when the ques- 
 tion has come before the courts, that a joint action will not lie 
 against separate owners of dogs which unite in committing mischief. 
 One of the earliest cases on this subject is Russell v. Tomlinson and 
 Haii'khis, 2 Conn. 206, in which the plaintiff sought to hold the de- 
 fendants jointly liable for injuries done to his sheep by their dogs. 
 Chief Justice Swift, in delivering the opinion of the court, said: 
 "Owners are responsible for mischief done by their dogs, but no 
 man can be liable for the mischief done by the dog of another, unless 
 he has had some agency in causing the dog to do it. When the 
 dogs of several persons do mischief together, each owner is only 
 liable for the mischief done by his own dog, and it would be repug- 
 nant to the plainest principles of justice to say that the dogs of dif- 
 ferent persons, by joining together in doing mischief, could make 
 the owners jointly liable. This W'Ould be giving them a power of 
 agency which no animal was ever supposed to possess." 
 
 A similar view is expressed in Van Steenburgh v. Tobias, 17 
 Wend. 562 ; Auchmuty v. Ham, i Denio 495 ; Partenheimer v. Van 
 Order, 20 Barb. 479 ; Adams v. Hall, 2 Vt. 9 ; Buddington v. Shearer, 
 20 Pick. 477, and Denny v. Correll, 9 Ind. 73. 
 
 Nor does the fact that there may be difficulty in ascertaining the 
 quantum of damage done by each dog afford any ground for hold- 
 ing their owners jointly liable. As was said in Van Steenburgh v. 
 Tobias, supra, the difficulty of such ascertainment is not an argu- 
 ment of sufficient strength to warrant the injustice of punishing a 
 man who is entirely innocent. 
 
 The liability of the prosecutors in this case, for the mischief 
 done by their respective dogs, was a separate and not a joint one, 
 and the plaintiff, in order to recover for the loss vv-hich he had sus- 
 tained, should have brought actions against each of tliem for so 
 much of the injury as was caused by the dog which he owned. By 
 doing so he would have been fully indemnified, for the recovery in
 
 FENEFF V. BOSTON & M. RAILROAD 93 
 
 an action against one owner would have been no bar to the action 
 against the other. 
 
 The judgment of the court, of common pleas should be set 
 aside.'^° 
 
 ANTOINE FENEFF v. BOSTON AND MAINE R.\ILROAD. ^ 
 
 Supreme Judicial Court of Massachusetts, 1907. 
 196 Mass. 575- 
 
 Tort for personal injuries received by the plaintiff in the col- 
 lision of two engines, upon one of which he was riding, in the yards 
 of the New York, New Haven and Hartford Railroad Company 
 in Worchester. Writ in the Superior Court for the county of Wor- 
 chester dated June 13, 1906. 
 
 It appeared that, at the point in the yards where the collision 
 occurred, there were five tracks, three of which were controlled by 
 the defendant. New York Central and Hudson River Railroad Com- 
 pany, and two by the New York, New Haven and Hartford Com- 
 pany, which was not a party to this action. Across these tracks a 
 switch engine operated by the defendant, Boston and Maine Rail- 
 road, ran from time to time. Near at hand was a switching tower. 
 No trains or engines could pass on the tracks at the place in ques- 
 tion unless they were permitted to by the man in charge of the 
 switching tower. That man was an employe of the defendant. New 
 York Central and Hudson River Railroad Company. 
 
 At the time of the collision, the plaintiff, under the circumstances 
 stated in the opinion, was riding upon a passenger engine of the 
 New York, New Haven and Hartford Railroad Company from 
 the south station to go to the union station, when that engine was 
 run into by a switching engine of the defendant, Boston and Maine 
 Railroad. The plaintiff contended that the collision occurred be- 
 
 '° Accord: Russell v. Tomlinson, 2 Conn. 206 (1817) ; Adams v. Hall, 2 
 Vt. 9, 19 Am. Dec. 690 (1829) ; Van Steenhurgh v. Tobias, 17 Wend. (N. Y.) 
 562, 31 Am. Dec. 310 (1837); Buddington v. Shearer, 20 Pick. (Mass.) 477 
 (1838) ; Auchmiity v. Ham, i Den. (N. Y.) 495 (1845) ; Partenheimer v. Van 
 Oder, 20 Barb. (N. Y.) 479 (1855); Denny v. Correll, 9 Ind. 72 (1857); 
 Cogswell v. Mnrphy, 46 Iowa 44 (1877). Otherwise where the animals are 
 in the joint possession of the defendants. Jack v. Hitdnall, 25 Ohio St. 255, 
 18 Am. Rep. 298 (1874); Ozhurn v. Adams, 70 111. 291 (1873) and see Mc- 
 Clain V. Lewistown, etc., Assn., ly Idaho 63 (1909). See also, for the princi- 
 ple that for separate torts separate actions must be brought, Blaisdcll v. 
 Heister, 14 Nev. 17 (1879) ; Strawhridge v. Stern, 112 Mich. 16, 70 N. W. 
 331 (1897) ; Millard v. Miller, 88 Pac. 845 (Colo. 1907) ; Breaux B. Co. v. 
 Hchert, 121 La. 188, 46 So. 206 (1908) ; Wise v. Tube Bending M. Co., 194 
 N. Y. 272 (1909) ; Courtney v. Louisiana Ry. N. Co., 131 La. 575 (1912) ; 
 Dickey V. Willis, 15 Mass. 292, 102 N. E. 336 (1913) ; Pomeroy, Code Reme- 
 dies (4th ed.), p. 303; 38 Cj'C. 484. In Gunner v. Tibbitts, 153 Ind. 591, 55 N. 
 E. 762 (1899) a joint action was sustained against plaintiff's seducer and an 
 abortionist; quaere tamen.
 
 94 PAKPIKS 
 
 cause of noj;lijj^oncc both of the persons operaliii}^- the switching 
 engine and of the person operating the switching tower. At the 
 close of the evidence, the presiding judge directed a verdict for 
 both of the defendants, and the plaintiff exce])ted.'' 
 
 Bkalky, J. : In avoidance of this liability the defendant New 
 York Central and Hudson River Railroad Company urges that two 
 or more wrongdoers can not be held jointly, unless, either in fact or 
 by intendment of law, they co-operate in the perpetration oi the 
 wrong, as otherwise there would be a misjoinder of separate causes 
 of action. Undoubtedly this is the general rule where two or more 
 persons voluntarily unite in the act which constitutes the wrong, 
 or the act is committed under such circumstances that they reason- 
 ably may be charged with intending the injurious consequences 
 which follow. We refer only to a few illustrative cases. " 
 
 It has been said by an eminent legal author that "in respect to 
 negligent injuries, there is considerable difference of opinion as to 
 what constitutes joint liability. No comi)rehensive general rule can 
 be formulated which will harmonize all the authorities." i Cooley 
 on Torts (3d ed.) 246. See Pollock on Torts (7th ed.) 194. But 
 whatever diversity of opinion there may be elsewhere, the law here 
 must be considered as settled, that if two or more wrongdoers negli- 
 gently contribute to the personal injury of another by their several 
 acts, which operate concurrently, to that in effect the damages suf- 
 fered are rendered inseparable, they are jointly and severally liable. 
 Boston and Albany Railroad v. Shanly, 107 Mass. 568, 579 ; Bryant 
 V. Bigelozc Carpet Co., 131 Mass. 491, 503; Corey v. Havener, 182 
 Mass. 250; Oiilighan v. Butler, 189 Mass. 287, 293; Flynn v. Butler, 
 189 Mass. 377. A corresponding liability under similar conditions 
 has been sustained in other jurisdictions. ''•'' The cases of Parsons v. 
 Winchell, 5 Cush. 592; Midchey v. Methodist Religious Society, 125 
 
 '' Only so much of the case is printed as relates to the joinder of defend- 
 ants. 
 
 '■Brown v. Perkins, i Allen (Mass.) 89 (1861); Stone v. Dickin- 
 son, 5 Allen (Mass.) 29, 81 Am. Dec. 727 (1862) ; Burden v. Fetch, 109 Mass. 
 154 (1872); Levi V. Brooks, 121 Mass. 501 (1876); Bath v. Meicalf, 145 
 Mass. 274, 14 N. E. 133, I Am. St. 455 (1887) ; Martin v. Golden, 180 Mass. 
 549, 62 N. E. 977 (1902) ; Parsons v. Winchell, 5 Cash. (Mass.) 592, 52 Am. 
 Dec. 745 (1850); Hozi'kcszvorth v. Thompson, 98 Mass. 77, 93 Am. Dec. 137 
 (1867) ; Banfield v. Whipple, 10 Allen (Alass.) 27, 87 Am. Dec. 618 (1865) ; 
 Midchey v. Methodist R. Sac, 125 Mass. 487 (1877); White v. Saivyer, 16 
 Gray (Mass.) 586 (i860) ; Pervear v. Kimball, 8 Allen (Mass.) 199 (1864) ; 
 Swain v. Tennessee C. Co., in Tenn. 430, 78 S. W. 93 (1903) ; Hill v. Good- 
 child, 5 Burr. 2790 (1771). 
 
 ■' Colegrove v. New York, N. H. & H. R. Co., 20 N. Y. 492, 75 
 Am. Dec. 418 (1859) ; Barret v. Third Ave. R. Co., 45 N. Y. 628 (1871) ; 
 Lynch v. Elecktron Mfg. Co., 94 App. Div. (N. Y.) 408 (1904); Tompkins 
 V. Clay Street Hill R., 66 Cal. 163, 4 Pac. ii6s (1884) ; Cuddy v. Horn, 46 
 Mich. 596, 10 N. W. 32, 41 Am. Rep. 178 (1881) ; Mathews v. Del. L. & W. 
 R. Co., 56 N. J. L. 34, 27 Atl. 919. 22 L. R. A. 261 (1893) ; Electric R. Co. v. 
 Shelton, 89 Tenn. 423, 14 S. W. 863 ( 1890) ; JVilder v. Stanley, 65 Vt. 145, 26 
 Atl. 189. 20 L. R. A. 479 (1893) ; McClcllan v. St. Paul, M. & M. R. Co., 58 
 Minn. 104, 59 N. W. 978 (1894) ; Allison v. Hohbs, 96 Maine 26, 51 Atl. 245 
 (1902); Wabash R. Co. v. Shacklet, 105 III. 364, 44 Am. Rep. 791 (1883); 
 Craves v. City & S. Tel. Assn., 132 Fed. 387 (1904).
 
 FENEFF V. BOSTON & M. RAILROAD 95 
 
 Mass. 487; Harriott v. Plimpton, i66 Mass. 585 ; Mooney v. Ediston 
 Electric Illuminating Co., 185 Mass. 547, and Fletcher v. Boston and 
 Maine Railroad, 187 Mass. 463, upon which the defendant reHes as 
 estabhshing a different rule, are to be distinguished. The first two 
 decided that a master can not be held responsible jointly with his 
 servant nor a principal with his agent, for a tort committed by the 
 servant or agent, when acting within the scope of their employ- 
 ment.'^* In the third case, the joint action failed because no proof 
 appeared of any co-operation between the defendants to procure a 
 breach of the plaintiff's contract of marriage, while in the fourth, 
 the measure of damages as well as the degree of liability being dif- 
 ferent and distinct as to the different defendants, the liability was 
 said to be several. If, in the remaining case, it could have been said 
 that the accident was chargeable- solely to the railroad company, 
 upon whom primarily rested the contractual duty of safely trans- 
 porting the plaintiff and whose breach of this duty was the proxi- 
 mate cause of the injury, yet the decision in favor of the defendants 
 well might rest, as the opinion states, upon his contributory negli- 
 gence. In the present case the wrongful act was unintentional and 
 arose solely from the concurrent negligence of the defendants, and, 
 while it can not be said that there was any concerted action, yet 
 their combined carelessness in the simultaneous performance of 
 unconnected duties produced a single injury to the plaintiff. It thus 
 becomes impossible to ascertain whether one defendant rather than 
 the other was the efficient cause of the wrong to which each con- 
 tributed. 
 
 The plaintiff, therefore, is entitled to prosecute. liissuit..to,.£nal 
 judgment against both defendants, although he can have but one 
 satisfaction in damages. Oidiglian v. Butler, 189 Mass. 287, 293, 
 and cases cited. 
 
 The verdict in their favor having been improperly directed, in 
 accordance with the agreement of the parties judgment is to be 
 entered for the plaintiff in the sum of $600.'^^ 
 So ordered. 
 
 '^ See note to French v. Central Construction Co., 12 L. R. A. (N. S.) 
 669 (76 Ohio 509). 
 
 " Accord : Matthews v. Del. L. & W. R. Co., 56 N. J. L. 34, 27 Atl. 919, 
 22 L. R. A. 261 (1893) •, _Doivnev v^ J^aUroad, i6i„Pa.. '^88. 2q Atl. 128 (1894) ; 
 Brown v. Coxe Bros. & Co., 75 Fed. 689 (1896) ; Corey v^ Havener, 182 
 Mass. 250, 65 N. E. 69 (1902) ; Weathers v. Railroad, in Mo. App. 315, 86 
 S. W. 908 (1904) ; StranJial v. Asiatic S. Co., 48 Ore. 100 (1906) ; Walton v. 
 Miller's Admr., 109 Va. 210 (1909) ; Sweet v. Perliins, 196 N. Y. 482 (1909) ; 
 Pacific T. Co. v. Parmenter, 170 Fed. 140 (1909) ; Mauniee Valley R. & L. Co. 
 V. Montgomery, 81 Ohio 426 (1910) ; Fortmeyer v. National B. Co., 133 N. W. 
 461 (Minn. 1911) ; Spear v. United Raliroads, 117 Pac. 956 (Cal. 1911) ; 
 Jones V. Spokane R. Co., 124 Pac. 142 (Wash. 1912) ; Louisville R. 
 Co. V. Allen, 65 So. 8 (Fla. 1914). In other cases a more restricted 
 rule is piven. Thus in Mason v. Copeland Co., 27 R. I. 232 (1905), it is 
 said: "The case does not present the concurrence of intention in the com- 
 mis-sion of a tort which is necessary to make a joint tort." In Stnrs_ c- 
 becker v. Inland Traction Co., 211 Pa. 156, 60 At l. 583 (1905), it is said: 
 "There can he no recovery upon the joint action where it appears that there 
 was no community of fault by the two defendants in the act which occasioned
 
 96 PARTIES 
 
 ELIZABETH G. CHIPMAN r. JOHN PALMER. /V 
 
 Court of Appeals of New York, 1879. 
 
 77 A^ Y. 51. 
 
 Appeal by the plaintiff from judgment of the General Term of 
 the Supreme Court, in the third judicial department, affirming a 
 judgment in favor of plaintiff, entered upon a verdict. (Reported 
 below. 9 Hun 517.) 
 
 This action was brought to recover damages alleged to have 
 resulted from a nuisance. 
 
 It appeared from the evidence that plaintiff, in 1874, kept a 
 boarding-house in the village of Saratoga Springs, near which 
 flowed a small natural stream of water. Defendant kept a boarding- 
 house higher up on the same stream, the sewerage from which ran 
 into the stream. The sewerage from a large number of hotels and 
 other boarding-houses was also discharged into the stream before 
 it reached plaintiff's premises. In consequence the water of the 
 stream became corrupt and offensive, and by reason of the stench 
 some of plaintiff's boarders left. 
 
 The court charged the jury that they could not hold the defend- 
 ant liable beyond the extent of the wrong w^hich he had himself 
 done. That if sewers from private houses and large hotels had all 
 contributed to produce the damage the jury might apportionate it, 
 and the rule of damage was the rental value. The plaintiff excepted 
 to that part of the charge relating to damages. The jury rendered 
 a verdict for the plaintiff for five dollars."*^ 
 
 Miller, J. : The charge of the judge upon the trial in reference 
 to the damages embraced two propositions : First : That the defend- 
 ant was not liable beyond the extent of the wrong which he had 
 committed, nor for the injury which other parties had contributed 
 to produce, and Second : That as to the amount of injury, the rental 
 value of the premises was the true test. A general exception was 
 taken to this portion of the charge. 
 
 The first proposition contained in the charge was clearly correct. 
 The right of the plaintiff' to recover of the defendant all the dam- 
 ages which he had sustained by reason of the nuisance I tliink can 
 not be maintained. The injury was not caused by the act of the de- 
 fendant alone, or by that of others who were acting jointly or in 
 concert w4th the defendant. It was occasioned by the discharge of 
 sewerage from the premises of the defendant and other owners of 
 lots into the creek separately and independently of each other. The 
 right of action arises from the discharge into the stfeam, and the 
 nuisance is only a consequence of the act. The liability commences 
 
 the injur>'" See also, ^prfj y. VnJip^ -?fS P^, /\^i (1856); Howard v. Union 
 Traction Co... iq^ Pa. 3QI (;g oo') ; Ralienkqrn± v. United Traction Co., 14 
 Pa7 Su per. Ct. 6 35_XlS'Oo).__ 
 
 "^The argiirnents of counsel and that part of the opinion which discusses 
 the measure of damages is omitted.
 
 CHIPMAX V. PALMER 97 
 
 with the act of the defendant upon his own premises, and this act 
 was separate and independent of and without any regard for the act 
 of others. The defendant's act, being several when it was committed, 
 can not be made joint because of the consequences which followed 
 in connection with others who had done the same or a similar act. 
 It is true, that it is difficult to separate the injury ; but that furnishes 
 no reason why one tort feasor should be liable for the act of others 
 who have no association and do not act in concert with him. If the 
 law was otherwise, the one who did the least might be made liable 
 for the damages of others far exceeding the amount for which he 
 really was chargeable, without any means to enforce contribution 
 or to adjust the amount among the different parties. So also proof 
 of an act committed by one person would entitle the plaintiff' to 
 recover for all the damages sustained by the acts of others, who 
 severally and independently may have contributed to the injury. 
 Such a rule can not be upheld upon any sound principle of law. 
 The fact that it is difficult to separate the injury done by each one 
 from the other furnishes no reason for holding that one tort feasor 
 should be liable for the acts of others with whom he is not acting 
 in concert. The authorities relied upon to sustain such a doctrine 
 come far short of establishing any such rule and have no application. 
 (Barrett v. The Third Ave. R. R. Co., 45 N. Y. 628; Webster v. 
 H. R. R. R. Co., 38 N. Y. 260; Sheridan v. B. & N. R. R. Co., 36 
 N. Y. 39; Chapman v. N. H. R. R. Co., 19 N. Y. 341 ; Colgrove v. 
 N. Y & H. and A^. Y. & N. H. R. R. Co., 20 N. Y. 492; Creed v.' 
 Hartman, 29 N. Y. 591.) Each of the cases cited was disposed of 
 upon a different principle. They merely hold that where a direc t 
 ^jersonal injurv is occasioned by the separate and c( rncurrmg negli- 
 gence of t\\ (/parties at one and the same time, an action against 
 one or all of them will lie. The distinction is plain between the 
 cases last cited and one where the injury is remote from the act 
 and consequential, and the result of separate acts of different par- 
 ties at different times, without any association and independent of 
 each otlier. Slater v. Merserean, 64 N .Y. 138, was a case where the 
 separate and independent acts of negligence of two parties was the 
 cause of a single injury to a third person, and as was said in the 
 opinion, was somewhat analogous to' a case where the injury was 
 caused by the concurrent negligence of the trains of two railroad 
 corporations. That case was well decided, and in no way upholds 
 the doctrine contended for by the plaintiff's counsel, and is not in 
 point. 
 
 The appellant's counsel cites from Wood on Nuisances (§§ 821, 
 822), claiming that the text upholds the doctrine that where one 
 contributes to the production of a nuisance, he is chargeable wath 
 all the damages, although many others contributed thereto, and that 
 where several persons drain in the same ditch, and an injury is pro- 
 duced thereby, any of the persons so using the drain are liable jointly 
 or separately. The cases cited by the author do not sustain the 
 principle contended for, as will be seen by an examination of the 
 same. In Duke of Buccleugh v. Connan, 5 Macph. 214, the action 
 
 7 — Civ. Proc.
 
 98 PARTIES 
 
 was a tleclaration or interdict, in tlic Court of Sessions of Scotland, 
 which is in the nature of a bill in eijuity, to prevent the pollution of 
 the river North Esk, which flowed through the lands of the com- 
 plainants, by paper mills erected on tlie stream by the defendants. 
 It was held that the action could be maintained; that no question 
 of damage was raised, but merely the question whether the parties 
 had committed the nuisance sought to be redressed. While an action 
 in equity may be maintained in favor of different parties, who were 
 the owners of property upon the same stream, against the owners of 
 dillerent properties, to restrain the nuisance, they may not be jointly 
 or severally liable for the entire injury occasioned thereby. In 
 Crossley z: Liglitoivlcr, (3 L. R. Eq. 279,) it was held that it was 
 no answer to plaintiff's complaining of a private nuisance that a 
 great many other persons are committing the same sort of nuisance, 
 and that plaintiff has admitted the fact by buying up the rights of 
 some who had acquired rights against him, provided that a definite 
 amount of injury could be traced to the defendant. This case also 
 was a bill in equity to restrain the defendants from suffering the 
 foul w-ater from their dye works to flow into and foul the water 
 of tlie stream and thus interfering with the plaintiff's enjoyment 
 and use of the w^ater. There was no question as to a separate or 
 joint liability for damages in the case. Thorpe v. Brumfitt, 8 L. R. 
 Ch. App., 650,) was a bill for an injunction to restrain defendants 
 from obstructing a roadway, and holds that the acts of several per- 
 sons may together constitute a nuisance which the court will 
 restrain, although the damage occasioned by the acts of any one, 
 if taken alone, would be inappreciable. McAuley v. Roberts, (13 
 Grant Ch. [U. C], 565,) holds tliat an injunction will lie to com- 
 pel the defendant to stop or divert a drain which had been built on 
 the plaintift''s lot. In The Chenango Bridge Co. v. Lewis, (63 Barb., 
 Ill,) the erection and the illegal use of the bridge afterwards was 
 a continuous act; and hence, it was properly held that the liability 
 attached not only to those who were engaged in the use, but also 
 to those who erected the structure with the knowledge or intent that 
 it should be put to the illegal use. None of the cases uphold the 
 doctrine contended for."" 
 
 While, as we have seen, an equitable action will lie to restrain 
 parties who severally contribute to a nuisance, the general rule is 
 well settled that where different parties are engaged in polluting or 
 obstructing a stream, at different times and places, the whole damage 
 occasioned by such wrongful acts can not be collected of one of the 
 parties. This was also distinctly held in Wallace v. Drew, (59 Barb. 
 413.) There must be concert of action and co-operation to make 
 several persons jointly liable. {Williams v. Sheldon, 10 Wend. 
 654; Guille V. Swan, 19 J. R. 381.) In Wood v. Sntcliffe, (8 Eng. 
 L. & Eq. 217,) which was a motion for an injunction to prevent 
 the pollution of a stream by dye wares and matters of that descrip- 
 
 " See further on codefendants in equity People v. Gold Run D. & M. Co., 
 66 Cal. 138, 4 Pac. 1152, 56 Am. Rep. 80 (1884) ; Warren v. Parkhurst, 186 
 N. Y. 43 (1906); Laden v. Tennes.'iee Copper Co., 179 Fed. 245 (1910) ; 
 Milchsack V. Dexter Cement Co., 14 Northampton Co. Rep. 177 (P a. 1914 ).
 
 PRICE V. VIRGINIA-CAROLINA C. CO. 99 
 
 tion, the vice chancellor states that where one wrongdoer does 
 more harm than another by a separate act, "the plaintiff must pursue 
 each of the wrongdoers separately, unless lliey are acting in part- 
 nership or in concert together, as they are separate acts." The same 
 rule is upheld in th.c Slate of Pennsylvania in several cases where 
 the question was presented: (Little ScJiuylkill Nav. R. R. & Coal 
 Co. V. Richards, 'VT jr'enn. 142 ; Seely v. Alden, 6iJPa. 302 ; Bard v. 
 Yolin, 26 Pa. 482.J 
 
 As the portion of the charge which we have considered was 
 clearly right, and the exception was general, so as to include both 
 propositions, it is not material whether the last one was correct in 
 that connection. 
 
 Judgment affirmed."® 
 
 PRICE V. VIRGINIA-CAROLINA CHEMICAL CO. 
 
 Supreme Court of Georgia, 1911. 
 
 136 Ga. 175. 
 
 Complaint. Before Judge Rawlings. Johnson Superior Court. 
 March 23, 1910. 
 
 The Virginia-Carolina Chemical Company filed its petition 
 against W. D. Price & Company and the Citizens Bank of Kite, 
 Georgia, alleging as follows: that on May i, 1908, W. D. Price & 
 Company executed and delivered to petitioner their note for $648.11, 
 due November i, 1908, and payable at the Citizens Bank of Kite; 
 petitioner discounted the note before maturity, and, in due course of 
 trade, it became the property of the Corn Exchange National Bank 
 of Chicago ; that the Corn Exchange Bank, shortly before maturity 
 of the note, sent same for collection to the Citizens Bank of Kite, 
 
 ''Accord: Lull v. Fox & W. Imp. Co., 19 Wis. 100 (1865); Sellick v. 
 Hall, 47 Conn. 260 (1879) ; Sloggy v. Dehvorth, 38 Minn. 179, 36 N. W. 451 
 8 Am. St. 656 (1888); Martinoz^'skv v. Hannibal, 35 Mo. App. 70 1889) 
 Miller v. High Ditch Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. 254 (1891) 
 Ames V. Dorset Marble Co., 64 Vt. 10, 23 Atl. 857 (1891) ; Gallaghe z^y. 
 Kemijierer. 1.44 Pa. S09, .22 A tl. 970, 27 Am. St. 673 (1891) ; People v. Oak- 
 Tand Water F. Co., 118 Cal. 234, 50 Pac. 305 (1897) ; Bonte v. Post el, 109 Ky. 
 64, 22 Ky. L. 583, 58 S. W. 536, 51 L. R. A. 187 (1900) ; Swain v. Tennessee 
 Copper Co., iii Tenn. 430, 78 S. W. 93 (1903) ; Watson v. Colusa-Parrott M. 
 6- Smelting Co., 31 Mont. 513 (1905) ; Mansfield v. Bristor, 76 Ohio St. 270 
 (1907) ; Tackaberry v. Sioux City Service Co., 154 Iowa 358 (1911) ; /?f^- 
 manv. Lcl'Jqh ^ l^'' ^ Cn ^o Pa. Super. Ct. 427 ( 1912) ; Brose v. Tivin Tails' 
 L. & W. Co., 24 Idaho 266 (1913) ; Standard rnosphate Co. v. Lunn, 63 So. 
 429 (Fla. 1913). Contra: South Bend M. Co. v. Liphart, \2 Ind. App. 185, 
 39 N. E. 908 (1844) ; Valparaiso v. Moffitt, 12 Ind. App. 250, 39 N. E. 909, 54 
 Am. St. 522 (1894) ; Wc.<;t Mimcie S. Co. v. Slack, 164 Ind. 21, 72 N. E. 879 
 (1904); "Day V. Louisville, C. & C Co., 60 W. Va. 27, 53 S. E. 776, 10 L. 
 JR. A. (N. S.) 167 (1906). Parties who co-operate in maintaining a nuisance 
 may be held jointly. Comminge v. Stevenson, 76 Tex. 642, 13 S. W. 556 
 (1890) ; Rogers v. Stezvart, 5 Vt. 215, 26 Am. Dec. 296 (1833) ; Irvin v. Wood. 
 4 Rob. (N. Y.) 138 (1866) ; Blanton v. Kincheloe L Co., 102 S. W. 744 (Tex. 
 1907).
 
 lOO PART IKS 
 
 but never rceeivcd any remittance from that bank, nor was tlie note 
 ever returned; that \V. I). Trice & Com])any claim that they paid 
 the note in full to the Citizens I')ank of Kite on the 3d of November, 
 1908, which is denied by that bank, which also denies that it ever 
 received such note for collection ; that petitioner has paid the Corn 
 Kxchane^e Bank the amount of the note, but has never been able to 
 obtain possession of the note; that if this not was paid by W. D. 
 Price & Company to the Citizens Bank of Kite, then that bank is 
 indebted to petitioner for the amount of the note, but if it was not 
 so paid as claimed by Trice & Company, tlien the note has been lost, 
 if it was never received by the Citizens Bank of Kite for collection, 
 or, if it was received by the bank, the latter has approi:)riated and 
 converted it to its own use; and that eitlier W. D. Price & Company 
 or the Citizens Bank of Kite is indebted to ])etitioner in the amount 
 of the note. The prayer of the petitioner v.as that W. D. Price & 
 Company and the Citizens Bank of Kite be required to interplead, 
 whether W. D. Price & Company had paid the note to the Citizens 
 Bank of Kite, as they claimed, or whether said note had never been 
 received by the bank, as claimed by it ; and that ])etitioner have 
 judgment against whichever of the defendants it should appear 
 owed the amount of its note. It was alleged by amendment that 
 petitioner was without any adequate remedy at law, and that in 
 order to prevent a multiplicity of suits and settle the contentions 
 of the parties by one decree it was necessary that a court of equity 
 should take jurisdiction. Price & Company demurred to the petition, 
 on the grounds, that no cause of action was set out. that the peti- 
 tioner is not entitled to the relief sought, eitlier legal or efjuitable, 
 and because sei)arate and distinct actions against separate and dis- 
 tinct defendants are joined in the petition and there is a misjoinder 
 of parties defendant. The court overruled the demurrer, and Price 
 & Company excepted. 
 
 Evans, P. J. : Under the allegations of the petition, the plaintiff 
 is not entitled to have the defendants engage in any internecine 
 legal battle to settle which one of them shoukl pay the money- which 
 it claims to be due from one or the other. The code declares that 
 "whenever a person is possessed of property or funds, or owes a 
 debt or duty, to which more than one jierson lays claim, and the 
 claims are of such a character as to render it doubtful or dangerous 
 for the holder to act, he may apply to ecjuity or compel the claim- 
 ants to interplead." Civil Code (1910), § 5471. Instead of alleging 
 that he has funds belonging to one or the other of the defendants, 
 whom he invites to settle their respective rights to the same, the 
 plaintiff alleges that he is entitled to recover of one of the defend- 
 ants a certain sum of money on an alternative state of facts, and 
 asks that they litigate between themselves which state of facts 
 presents the truth and which one of the defendants is liable to him. 
 This is not permissible. If the bank collected the note, it is account- 
 able to the plaintiff, and that is one cause of action. If the makers 
 have not paid the note they are liable thereon to- the plaintiff, and 
 that is an altogether different cause of action against different de- 
 fendants, and violates the fundamental j)rinciple of pleading which
 
 FAlRriKLD T'. SOUTH PORT NAT. BANK 101 
 
 prohibits the inckision of separate and independent controversies 
 against different parties in the same action.^'-' 
 Judgment reversed. 
 
 TOWN OF FAIRFIELD v. SOUTHPORT NATIONAL BANK. 
 
 Supreme Court of Connecticut, 1904. 
 
 •jj Conn. 423. 
 
 The town of Fairfield brought an action against the Southjiort 
 National Bank, and four other banks, averring in the complaint 
 that the selectmen of the town had borrowed money from time to 
 time of the Southport National Bank and had given twenty prom- 
 issory notes therefor. These notes were paid in full to the South- 
 port National Bank, but were not cancelled or surrendered as the 
 bank had promised they should be, and through its fraudulent trans- 
 fer three of said notes had passed into the possession of the Con- 
 necticut National Bank, ten into the possession of the Peoples Sav- 
 ings Bank, five into the possession of the City Savings Bank, and 
 one into the possession of the Bridgeport Savings Bank. Each of 
 the banks claimed to be a bona fide holder of said notes for value. 
 The Southport National Bank was insolvent. The prayer was for 
 a decree determining what rights the several defendants had in the 
 instruments claimed by them, and what sum they would be entitled 
 to receive from the plaintiff; to compel the Southport National Bank 
 to pay the other banks and procure the instruments to be cancelled 
 and delivered up and for a recovery of damages against the South- 
 port National Bank. To the complaint the Southport National Bank 
 demurred on the ground that the complaint was bad for misjoinder 
 of parties and causes of action. The court below sustained the de- 
 murrer and entered judgment for the bank. The plaintiff appealed.**" 
 
 "Two or more persons can not be joined as defendants upon the ground 
 that one or some are liable in the alternative. Oglesby's Sureties v. State, 73 
 Tex 658 II S. W. 873 (1889) ; Brozvn v. ///. Cent. R. Co., 100 Ky. 525, 18 Ky. 
 L 974 38 S. W. 862, (1897) ; L. & N. R. Co. v. Fort Wayne E. Co., 108 
 Ky. 113, 21 Ky. L. 1544, ^5 S. W. 918 (1900) ; Thorndale M. Co. v. Evens, 146 
 S.' W. 1053 (Tex. 1912); Casey P. M. Co. v. Bootii F. Co., 124 Minn. 117 
 (1913) ; 30 Cyc. 131. ... 
 
 In England, under tlie rules of the Supreme Court, oraer xvi, rule 7, 
 where a plaintff is in doubt as to the per.son from whom he is entitled to re- 
 dres.s, he may join two or more defendants to th'e intent that the questionas 
 to which, if any, of them is liable may be determined. Bennetts v. Mcllwraith, 
 L. R. (1896), 2 Q. B. Div. 464; Thompson v. London County Council, L. R. 
 (1899), I Q- B. Div. 840; Sanderson v. Blyth Theater Co., L. R. (1903), 2 K. 
 B. Div. 533; Compania Sansincna v. Moulder, L. R. (1910), 2 K. B. Div. 354- 
 This practice has been adopted by statute in Rhode Island. Phoenix Iron 
 Foundry v. LocHvood, 21 R. I. 556, 45 Atl. 546 (1900) ; in New Jersey by the 
 Practice Act of 1912, § 6 and rule 8, and in Connecticut by rule of court, 58 
 Conn.. 561. 
 
 ''"The statement of facts is abridged from the opinion of the court, por- 
 tions of which are omitted. The section of the practice act referred to by 
 the court is in the General Statutes, Revision of 1902. Similarly the New
 
 lOJ TARTIES 
 
 Torrance. C. ].: The question is whether, under our Practice 
 Act, the complaint is bad for misjoinder as claimed. That act pro- 
 vides (Gen. Stat., § 6i8) as follows: "Any person may be made a 
 defendant who has or claims an interest in the controversy, or any 
 part thereof, adverse to the plaintiff, or whom it is necessary, for 
 a complete determination or settlement of any question involved 
 therein, to make a jiarty." If then, any of the defendants "has or 
 claims an interest in the controversy, or any part thereof, adverse to 
 the plaintiff," such defendant was properly made a party in the 
 cause. What, then, is the "controversy" in this case, within the 
 meaninc^ of the statute? That controversy relates to the ownership 
 of, the liability upon, and the right to the possession of, the twenty 
 written instruments described in the complaint, each purporting on 
 its face to be a promissory note made by the plaintiff. These in- 
 struments may be said to be the subject-matter of the controversy. 
 Each of the defendants holds one or more of said notes, and they 
 each make certain claims with regard to the said notes held by each, 
 which are adverse to certain claims made by the plaintiff with regard 
 to said notes. The plaintiff is one of the towns of this state, and with 
 reference to each and all of said notes, it claims: (i) that it never 
 executed them and is not legally bound by them; (2) that they were 
 paid in full, with its money, long before they came into the hands 
 of the defendants, other than the Southport National Bank; and 
 (3) that all of said notes held by said last-named defendants, are 
 held by transfer from said Southport National Bank ; that said 
 transfer was made by said bank in fraud of the plaintiff's rights ; 
 and that this fraud may affect the rights of the defendants other 
 than the Southport National Bank. The Southport National Bank 
 denies all of these claims; and the other defendants deny the first, 
 and the other two also, so far as they affect or may affect the right 
 of said defendants. The defendants thusJiave each an interest in 
 having these claims of the plaintiff decided adversely to the plaintiff, 
 and their interest is a pecuniary one. The word "controversy" is 
 exceedingly broad and comprehensive, and for that reason not easily 
 susceptible of any precise general definition and no attempt will be 
 made here to give it any such definition. It is enough to say that 
 we think that words, as applied to the present case, means the ad- 
 verse claims of the parties with respect to the ownership of, liability 
 upon, and possession of, said twenty notes set forth in the complaint. 
 If this be so, it follows that each defendant, as between such de- 
 fendant and the plaintiff, has an interest adverse to the plaintiff in 
 the whole or in some part of the controversy, and thus in terms at 
 least comes within the class who may be made defendants under the 
 statute. 
 
 York Code of Civil Procedure, § 4.47, provides : "Any person may be made a 
 defendant who has or claims an interest in tlic controversy adverse to the 
 plaintiff, or who is a necessary party de<'endant for the complete determina- 
 tion or settlement of a question involved therein, except as otlierwise ex- 
 pressly prescribed in this act." Tlie New York Code of 1848, § 118, was 
 copied into most of the other codes with sliffht modifications. New Jersey 
 Practice Act of 1912, § 6; Ohio Gen. Code, § 112^^; Burns' Ann. Stat. 
 Ind. (1914), § 269; Pomeroy's Code Remedies (4th ed.), P- 266.
 
 FAIRFIELD V. SOUTH PORT NAT. BANK I03 
 
 It must be conceded, however, as claimed by the Southport Na- 
 tional Bank, that with respect to each other, the interest of the de- 
 fendants in the controversy, or any part of it, is a several and not a 
 joint or mutual one. It is true they each obtained the notes they re- 
 spectively hold from a common source, the Southport National 
 Bank; but there is no privity between them. They each obtained 
 and hold their notes by a several title, by means of transactions 
 with which the others had and have no concern whatever. The de- 
 fendants, as between themselves, have no "joint" or "mutual" inter- 
 est in the claims of each against the plaintiff, nor in the claims of 
 the plaintiff against each; and because of this the Southport Na- 
 tional Bank contends that they can not properly be joined as de- 
 fendants. 
 
 In the old equity practice it was undoubtedly the rule, at least 
 in the case of "bills of ])eace," that a single plaintiff could not join 
 numerous defendants in one suit unless there existed among them 
 "a common right, a community of interest in the subject-matter of 
 the controversy, or a common title from which all their separate 
 claims and all the questions at issue arise; it is not enough that the 
 claims of each individual being separate and distinct, there is a com- 
 munity of interest in the question of law or of fact involved, or in 
 the kind and form of remedy demanded and obtained by or against 
 each individual." I Pomeroy's Eq., § 268. The author quoted, how- 
 ever, says in the next section (§ 269) that this rule has long been 
 abandoned, and tlien proceeds to state the matter as follows : "Under 
 the greatest diversity of circumstances, and the greatest variety of 
 claims arising from unauthorized public acts, private tortious acts, 
 invasion of property rights, violation of contract obligations, and 
 notwithstanding the positive denials of some American courts, the 
 v/eight of authority is simply overwhelming that the jurisdiction 
 may and should be' exercised either on behalf of a numerous body 
 of separate claimants against a single party, or on behalf of a single 
 party against such a numerous body, although there is no 'common 
 title', nor 'community of right', or of 'interest in the subject-matter', 
 among these individuals, l3ut where tliere is and because there is 
 merely a community of interest among them in the questions of law 
 and fact involved in the general controversy, or in the kind and 
 form of relief demanded and obtained by or against each individual 
 member of the numerous body." The cases cited in the foot notes 
 in the book above referred to amply bear out the author's state- 
 ments. In the following cases the later rule thus announced has 
 been recognized and applied. Sheffield Waterzvorks v. Yeomans, 
 L. R. 2 Cli. App. 8 ; Nezv York & N. H. R. Co. v. Schuyler, 17 N. Y. 
 592; Carlton v. Newman, yy Me. 408; JVoodruff v. North Bloom- 
 field G. M. Co., 8 Saw. (U. S. C. C.) 62^; Black v. Shreeve, 3 Halst. 
 Ch. (N. J. Eq.) 440; McHenry v. Hazard, 45 N. Y. 580; Board of 
 Supervisors v. Deyoe, yj N. Y. 219; Commonwealth v. Scott, 112 
 Ky. 252, 23 Ky. L. Rep. 1488, 55 L. R. A. 597; DeWolf v. Sprague 
 Mfg. Co., 49 Conn. 282; Evergreen Cemetery Assn. v. Beecher, 
 53 Conn. 551.
 
 104 rARTii:s 
 
 We think the case at Itar comes within this principle. The re- 
 spective rij:^hts which the defend^ints chiini as^ainst the ])laintift', 
 untler the notes held by each, depend snhstantially and for all prac- 
 tical jiurposes upon the decision of the same cpicslions of law and of 
 fact ; and no good reason appears why these rights can not be pro- 
 tected and enforced in one comprehensive proceeding. Of such a 
 jiroceeding this court has said: "We think that it is in harmony 
 with our ]>ractice in analogous proceedings and with the spirit of 
 the Practice Act, and that it promotes speedy, complete, and inex- 
 pensive justice, without placing any obstruction in the way of any 
 defendant in protecting liis rights." Ilvcrijreen Cemetery Assn. v- 
 Bcccltcr, z^}, Conn. 551, 552. 
 
 Judgment set aside and cause remanded. ^^ 
 
 SECTION 4. PERSONAL DISABILITY. 
 
 (a) Infants. 
 
 GUILD V. CRANSTON. 
 
 Supreme Judicial Court of Massachusetts, 185 i. 
 
 62 Mass. 506. 
 
 .Sit AW, C. J. : This case presents a tiuestion somewhat novel and 
 interesting. The suit is for the recovery of land, in usual form, in 
 the name of the plaintiff, by her next friend. The plaintiff now 
 comes into court by her petition or written motion, signed by herself 
 in proper person, and prays that the suit may be discontinued, and 
 all further proceedings thereon stayed. Upon a suggestion by the 
 court, that it would be proper to appoint some person as a commis- 
 sioner to inquire and report the facts, it was conceded by counsel, 
 acting upon the application of the next friend in prosecuting this 
 suit, that the plaintiff is over twenty years of age, and that the suit 
 was commenced and is prosecuted without her authority and against 
 her consent. 
 
 '''Compare Patterson v. Kellogg, 53 Conn. 38 (1885). 
 
 Under the codes : "The test to determine whether two parties can be 
 joined as defendants is, whether they have one connected interest centering 
 in the point in issue, or one common point of litigation." Harris v. Elliott, 
 29 App. Div. (N. Y.) 568 (1898) ; Corcoran v. Mannering, 10 App. Div. 
 (X. Y.) 516 (1896); Brady v. Linchan, 5 Idaho 732 (1898); Demarest v. 
 Holderman, 157 Ind. 467 (1901) ; Oyster v. lola Mining Co., 140 N. Car. 135, 
 52 S. E. 198 (1905) ; Mayer v. Home Insurance Co., 108 N. Y. S. 711 (1908). 
 On the other hand the cases permitting the joinder of defendants are limited 
 by the rule that a joint action can not be maintained where the liabilities of 
 the defendants are distinct and several. Trozvhridge v. Forcpaugh, 14 Minn. 
 133 (1869) ; Iowa Lillovct Gold M. Co. v. Bliss, 144 Fed. 446 (1906). This 
 distinction is particularly marked in the cases where an injury- arises out of 
 the acts of many defendants without common design. Where the claim is for 
 damages alone a joinder is improper. Swain v. Tennessee Copper Co., in
 
 GUILD V. CRANSTON IO5 
 
 A prochein ami or next friend is said to be "any person who will 
 undertake the infant's cause." i Bl. Com. 464. It is not limited to 
 any particular relative designated by being nearest of kin. It seems 
 to be clear, on general principles, that there must be an authority 
 somewhere, to allow or prohibit a suit to be brought in the name of 
 a minor, by any person assuming to be his next friend; other- 
 wise, the rights of the minor might be put at hazard, inasmuch as 
 he will be bound by the judgment. But in theory of law, we think a 
 prochein ami is appointed by the court. It is stated in Miles v. Boy- 
 den, 3 Pick. 219, that this practice of a minor suing by prochein ami 
 commenced with St. West, i, ch. 48, enlarged by St. West. 2, ch. 15 ; 
 and this is confirmed by other authorities. And it appears that orig- 
 inally the practice was, for the person intended to act as prochein 
 ami, who is usually some near relative, to go with the infant before 
 a judge at chambers or for a petition to be presented in behalf of 
 the infant stating the nature of the action, praying that, in respect j 
 of his infancy, the person intended may be assigned as his prochein | 
 ami. This was accompanied with an affidavit, on which the judge' 
 granted his fiat, and on this a rule was drawn up by the clerk of the 
 rules, admitting the person designated to sue as the prochein ami 
 of the infant. Tidd's Pract. (ist Amer. ed.) 69; Com. Dig. Pleader, 
 2 ch. i.^- 
 
 In one case, error being brought to reverse a judgment, because 
 no such previous order was shown, the court above refused to re- 
 verse, because the recital in the writ, stating that the infant was 
 prosecuting by his next friend allowed for that purpose, should be 
 taken as conclusive that an order had been made. ^Irclier v. Frozvde, 
 I Stra. 304. 
 
 The probability is, that like many other such requisites, the 
 practice of obtaining such previous order, from inconvenience, fell 
 into disuse ; probably in the confidence that the authority would not 
 be called in question, or, if called in question, could be supplied, 
 when all was right and well intended, by an order nunc pro tunc ; 
 and if the defendant appeared and pleaded, it would be too late 
 then to cpestion the authority of the prochein ami. It was put on 
 the footing, in this respect, of a power of attorney, which is always 
 
 Tenn. 430 (1Q03). But where it is merely sought to restrain the defendants 
 from continuing the injury all may be joined. Draper v. Bron'u, 113 Wis. 
 361 (1902) ; Montccito Valley IV. Co. v. Santa Barbara, 144 Cal. 578 (1904) ; 
 IVdrrcn v. Parklnirst, 186 N. Y. 45 (1906). 
 
 In England the rules of the Supreme Court, order xvi, rule 4, provide : 
 "All persons may he joined as defendants against whom the right to any 
 relief is alleged to exist, whether jointly, severally or in the alternative, 
 and judgment may be given against such one or more of the defendants as 
 may be found to be liable, according to their respective liabilities, without any 
 amendment." Under this rule a single action will not lie for several torts. 
 Sadler v. Great IVcstcrn R. Co., L. R. (1896), App. Cas. 450; Goiven v. Coul- 
 hridge, L. R. (1898), i Q. B. Div. 352. But where the right to relief against 
 both defendants arises out of a common transaction an action may be brought 
 against both. Frankcnburg v. Great Horseless Carriage Co., L. R. (1900), i 
 Q. B. Div. 504; Bullock v. London G. Omnibus Co., L. R. (1907), i K. B. 
 biv. 264; Cnmpania S. D. C. C. v. Moulder, L. R. (1910), 2 K. B. Div. 354. 
 
 *' "At the common law, infants were required to sue and to defend by
 
 Io6 PARTIES 
 
 presumed to exist, and which can not be questioned unless season- 
 ably challenged, and may then lie sui)plied.''*' 
 
 Such seems to have been tlie view taken by this court at an 
 earlv dav, by a rule reciuiring a prochein ami permitted to prosecute, 
 etc.. to give bond. Parsons v. Jones, 9 Mass. 106, note. So, it has 
 been held, that the name of a person, as next friend, may be intro- 
 duced, by way of amendment, in a writ sued out in (he name of a 
 minor. Blood v. Harrington, 8- Pick. 552. 
 
 We think this power of the court, to api)oint or allow a next 
 friend to prosecute, is recognized by R. S. ch. 79, which after 
 providing for the appointment of testamentary and probate guar- 
 dians, and guardians ad litem, adds: "§ 8. Nothing contained in 
 this chapter shall impair or affect the power of any court of common 
 law, probate court, or court of a justice of the peace," "to apjioint 
 or allow any ]-)erson, as next friend for a minor, to commence, 
 prosecute or defend any suit in his behalf." It presupposes an al- 
 lowance and appointment of the next friend ; but, like a power of 
 attorney to prosecute, it is not inquired into unless specially called 
 in (|uestion. And so we suppose is the form of setting forth in the 
 writ, according to the form stated in the case of Trask v. Stone, 7 
 Alass. 241, where both the attorneys were very good pleaders. The 
 plaintiff was an infant, and sued this action "by A. B., the next 
 friend of the said William, who is admitted by the court here to 
 prosecute for the said William, in a plea of trespass," etc. But it 
 is one of those formal averments which is not traversable.** 
 
 In practice, we know, it is not now the course for the minor or 
 next friend to procure an appointment or allowance previously to 
 the actual commencement of a suit, because usually it is not neces- 
 sary ; yet the case presupposes tliat the authority is with the court to 
 allow, they may of course disallow the nomination, and we think, 
 as a necessary consequence, they may revoke the authority. Com. 
 Dig. Pleader, 2 C. i. Where the proceedings appear to be fair 
 
 guardian; by whom was meant not tlie guardian of the infant's person and 
 estate, but either one admitted by the court for the particular suit on the 
 infant's personal appearance, or appointed for suits in general by the king's 
 letters patent. By the statute of Westminster, 2 C. 15, infants were author- 
 ized to sue by prochcin ami in all actions; and this remedy was held to be 
 cumulative, leaving it optional for suit to be brought by guardian or next 
 friend." Coke Litt, 135 b. note i; Young v. Young, Cro. Car. 86; Goodwin 
 V. Moore, Cro. Car. i6i\ Per Waterman, J., in Chudlcigh v. Chicago, R. I. & 
 P. R. Co., 51 111. App. 491 (1893). 
 
 The father has the first and best right to act as next friend of his in- 
 fant child. Rue V. Meirs, 43 N. J. Eq. 377, 12 Atl. 369 (1887) ; Woolf v. Pem- 
 berton, L R. (1877), 6 Ch. Div. 19; Gulf &c. R. Co. v. Lemons, 152 S. W. 
 1 189 CTex. 191 3). Unless his interest is adverse. Patterson v. Pullman, 104 
 111. 80 (1882). 
 
 "Accord: Judson v. Blanchard, 3 Conn. 579 (1821) ; Barieick v. Racklcy, 
 45 Ala. 215 (1871) ; Butler v. Winchester Home, 216 Mass. 567 (1914)- 
 
 '^ Paul V. Prierson, 21 Fla. 529 (1885). AUhough joined in the suit the 
 next friend is not the real partv in interest. The infant is the real party. 
 Duff\ V. Pinard, 41 Vt. 297 (1868) ; Morgan v. Potter, 157 U. S. 195 (1894). 
 When the infant comes of age, the fact should be noted of record and there- 
 after the suit should be conducted in his own name. Holmes v. Adkins, 2 
 Ind. 398 (1850).
 
 GUILD V. CRANSTON IO7 
 
 and regular, the court would be slow to interfere and revoke tlie au- 
 thority, during the progress of a suit.^"' But when the authority has 
 been assumed by one to act as next friend, contrary to the apparent 
 interest of the minor, or against the express will and consent of a 
 minor old enough to be capable of judging, and the attention of the 
 court is called to it, especially where an application is made by or in 
 behalf of the minor, and proper cause shown, we think it is compe- 
 tent for the court to revoke the authority of the next friend, and 
 stay proceedings, or appoint another. Such next friend is the ap- 
 pointee and officer of the court, as an instrument for the advance- 
 ment of justice, and not with a view to any rights or interests of 
 his own. It seems to follow, as a legal consequence, that his au- 
 thority is revocable.^'' 
 
 ""2. The next question is, whether sufficient cause is shown in 
 the present case. 
 
 It is said that the ])roseciition of this suit can not operate in- 
 juriously to the minor, because it is to recover land, which, if recov- 
 ered, must be to the use of the minor, and the next friend can not 
 aliene it. But this is far from being conclusive. He may so conduct 
 the suit as to fail, and she may have a judgment against her; and, 
 being a suit rightly prosecuted in her behalf, she would be concluded 
 by it. The prochein ami is a volunteer, and gives no bonds. The suit 
 was commenced and prosecuted without her knowledge or consent, 
 and against her will, and, as it appears, contrary to her own convic- 
 tions of her own interest. She is approaching the age of majority, 
 and it does not appear that any right will be lost by a postponement 
 of legal proceedings to that time. The law recognizes the capacity 
 of a minor of such age to act; for many purposes. She may 
 nominate and, with the concurrence of the judge of probate, appoint 
 a guardian. It would be competent for such a minor to apply orig- 
 inally with a next friend to have him allowed. Applying by petition, 
 signed by her in person, avoids the technical objection, that she can 
 not constitute an attorney. 
 
 It is an appeal to the judicial discretion of the court upon all the 
 circumstances; and, on the facts discolsed, the court are of opinion 
 that there is sufficient ground showTi to sustain the application. 
 
 The authority of Samuel Guild, as next friend, withdrawn, and 
 all proceedings stayed, by consent of defendant, without costs to 
 either party. ^' 
 
 ^^ Archer v. Frozvdc, i Strange 308 ( 173.3)- It i? not necessary to the 
 prosecution of a suit bj- a procJiein ami that the infant authorized or con- 
 sented thereto. Morgan v. Thornc, 7 M. & W. 400 (1841); McCarrick v. 
 Keah, 70 Conn. 642 (1898) ; Pync v. Wood, 145 Mass. 558 (1888). 
 
 "'Fulton V. Rosevclt, i Paige N. Y. Ch. 178 (1828) ; O'Donnell v. Broad , 
 i49]Pa^24J4822) ; R uffcl v. Police B. Assn.. o Pa. ^ ^_R:j82(Tqooy ^ 
 
 '^' Ali^ inTant is capable of suing and being sued, but.'Jor the protection of j 
 his interests, he is not permitted to sue or defend alone, the suit must hei 
 condu cted on his belialf by.,.5 _guar.dian ad I it em or next friend. Miles v.\ 
 7?oy(f^~3nPicT^ "(TTass. ) 21-5 (i82sT;' TFUIon v. r.nnlikr. .2 TTarr. Del. 2Q 
 ( 1835 ) ; Hardy v Sranlin. Miles Pa. 87 (183O : Heft v McGill, 3 Pa. 256 
 ( 1846) ; Cavedcr v. Smith. 5 Iowa 157 (TH57) ; Clark v. Piatt, 30 Lonn. 2«2 
 (1861); Bush V. Liiithicttm, $9 Md. 344 (1882) ; Boynton v. Clay, 58 Maine 
 236 (1870); Winer v. Mast, 146 Ind. 177 (1896); Lazvson v. Kuchner, 50
 
 U^ PAKTIKS 
 
 LEVYSTEIN r. O'BRIl^N. / 
 
 SuPKEMF. Court of ALA^A^rA, 1894. 
 106 Ala. 352. 
 
 The liill in this cause was tiled on Sciitcinhcr 12, by the heirs, 
 mother, sister and brothers of Archie O'Brien, Jr., deceased, against 
 Levvstein Bros., and avers the following facts : That about the 28th 
 of Ai>ril, 1894, Levvstein Bros, obtained a judgment against the said 
 Archie O'Brien, Jr., in a justice of the i)eace court of Montgomery 
 county, upon which an execution was duly issued and levied upon 
 the interest of said Archie in certain real estate in the city of Mont- 
 gomery, and on motion of plaintiffs therein, in the circuit court of 
 said county, to which these pa])ers were transmitted, an order was 
 made for the sale of said property so levied upon. After this, and 
 betore the sale, the said Archie OT>rien died. At the time said 
 judgment was rendered in the justice court, and at the time of his 
 death, the said Archie was a minor. No guardian ad litem' wa^ 
 appointed to act for him, and no notice giWn'to'his regularly ap- 
 pointed guardian ; and complainants averred in their bill that for 
 failure to appoint such guardian ad litem, the judgment is void. Tt 
 is not denied in said bill that the said Archie had due notice of said 
 proceedings, nor is it averred that any plea of infancy was inter- 
 posed to any of said proceedings. It is not denied, that the debt for 
 which said judgment was rendered, was valid and binding upon 
 said Archie, nor one on which he should, in equity and good con- 
 science, pay; neither is it averred, that the said Archie, or the com- 
 plainants in said bill, could prove a valid defense to said action. The 
 onlv averment upon this question is, "that if suit were properly and 
 legally brought on said claim against him, there is a full and legal 
 defense thereto." There is no ofifer in said bill to pay the said Levys- 
 tein Bros, any amount that might be found due them. The prayer 
 is, that said judgment be declared void, and the collection thereof 
 perpetually enjoined. 
 
 To this bill respondents interposed several grounds of demurrer, 
 
 W. Va. 344 (1901) ; Hurst v. Goodzvin, 114 Ga. 585 (1901) ; Clasen v. Prnhs, 
 69 Neb. 278 (1903) ; Williams v. Cleveland, 76 Conn. 426 (1904) ; Bancroft 
 V. Bancroft, 85 Atl. 561 (Del. 1911). A judsment obtained by a next friend 
 is not open to collateral attack by the infant on tlie ground of fraud and 
 colkision, he must seek to have the judgment itself .set aside. Chndlcigh v. 
 Chicago R. I. & P. Co., 51 111. App. 491 (1893). In some jurisdictions the 
 suit mu?t be by a guardian ad litem not a next friend. New York Code of 
 Civil Procedure, § 469. Hoftaiing v. Teel, ii How. (N. Y.) 188 (1855) ; Cal- 
 vin V. Hauenstein, no Mo. 575 (1892), in partition; Blair v. Henderson, 49 
 W. \'a. 282 (1901). As a defendant, an infant must be represented by a 
 pjiardian ad litem and not bv a next friend. Szj^'ain v^ Fidelity Ins. Co., 54 
 Pa. a:;; V 1867) ; Biisli v. Linihicum, 59 Md. 344 (i8-:,2TTJpencer v. RohVml, 
 106 Ind. ?8o, 5 N. K. 726 (1886), statute; Mitchel l v. SpaH lding,^g6 Pa. 220 
 (1903); McXaughton's Will, 136 Wis. 179 (1909)- 
 
 in England under the rules of the Supreme Court, Order XVI, rule 16, 
 infants may sue as plaintiffs by their next friend and defend by their guard- 
 ians appointed for that purpose. See Wolf v. Pemherton, L. R. (1877), 6 
 Ch. Div. 19; In re Duke of Somerset, L. R. (1887) ; 34 Ch. Div. 465. 
 
 The guardian ad litem or next friend is usually tiie nearest relation not 
 concerned, in point of interest, in the matter in question. United States
 
 LEVYSTEIN V. O BRIEN lOQ 
 
 and also moved to dismiss same for want of equity. The chancellor 
 overruled the demurrers and the motion to dismiss the bill for the 
 want of equity; and from said decree the present appeal is prose- 
 cuted and the same is here assigned as error. ^^ 
 
 McClellan, J. : In an action against infants, service of sum- 
 mons must be had upon the defendant, as upon defendants who are) 
 sui juris; and such service is as efficacious in the former as in the/ 
 latter case to give the court jurisdiction of the cause. Having thus 
 acquired jurisdiction of the person of an infant defendant^ it is the 
 coujt^.duty..tQ, appoint a guardian ad litem to make_ defense for 
 ITmi ; b ut afailure to discharge this duty does not oust the court's 
 j unsdictTohTwRicIi has already attached; iDut, to the contrary, if the 
 Tase proceecTs'to judgment against the infant without such appomJP 
 ITferif," whether upon issue joined and trial had or upon the default of 
 tTie""defendant, such judgment though irregular and erroneous, and 
 to be so declared upon appeal, js not voijd, and is therefore, not open 
 to impeachment upon collateral attack, i Freeman on Judgments, 
 § 151 ; 2 ib. § 487; 10 A. & E. Ency. of Law, pp. 692-697; Brown 
 on Jurisdiction, p. 113; Drake v. Hanshaw, 47 Iowa 292; Joyce v- 
 McAvoy, 31 Cal. 273, 89 Am. Dec. 172, and notes pp. 185 et seq. ; 
 Siimnons v. McKay, 5 Bush. (Ky.) 25. This doctrine has been 
 recognized by this court in the analogous case of a lunatic de- 
 fendant. JValker v. Clay, 21 Ala. 797, 807. And there is, we take 
 it nothing in the suggestion that, because of the mandatory terms 
 of section 2579 of the Code, a judgment against an infant with- 
 out tlie appointment of a guardian ad litem is not merely erro- 
 neous and irvegular but void. This section is equally mandatory in 
 respect of suits by infants — they "must sue by next friend," yet it 
 v.-ould scarcely be insisted that a judgment at the suit of an infant 
 in his own name against one sui juris would be void. The succeed- 
 ing section — 2580 — is equally mandatory in form in respect of 
 lunatics, but, as w-e have seen, judgments against lunatics are not 
 void though this mandate has been disregarded. And a reference to 
 the authorities cited above shows that under equally mandatory 
 statutes in other states, the ruling has been that a failure to appoint 
 a guardian to defend for the infant is, at most, reversible error and 
 
 Bank V. Ritchie, 8 Pet. (U. S.) 1281 (1834) ; Jarvis v. Crocicr, q8 Fed. 753 
 (1899). 
 
 The next friend or guardian ad litem of an infant plaintiff is generallj' 
 held liable for costs. Bligh v. Trcdqett, 5 De G. & S. 74 (i8si) ; ll'anng v. 
 Crane, 2 Pai-e Ch. (N. Y.) 79 (1830) ; Wcad v. Cantn'cll, 36 Hun (N. Y.) 
 528 (1885), under § 469 of the code; Waimvright v. Wilkinson, 62 Md. 146 
 (1884) ; Rauche v. Bliimcnthal, 4 Penn. (Del.) 521 (1904) ; Burhach v. Mil- 
 wankec E. R. Co., 119 Wis. 384 (1903) ; Reynolds v. Great Northern R. Co., 
 206 Fed. 1003 (1913). Contra Crandal v. Slaid, 52 Mass. 288 (1846) ; Sonle v. 
 Winslozv, 64 Maine 518 (1874); Albec v. ll'interink, 55 Iowa 184 (1880). 
 And, even where not liable generally, the next friend may be taxed with costs 
 when guilty of mismanagement or bad faitli. SmitJi v. Smith, 108 N. Car. 
 365 (1891). The guardian ad litem of an infant defendant will not, ordi- 
 narily, be charged witli costs. Berryman v. Burgster, 6 Porter (Ala.) 99 
 (1837) : Morgan v. Morgan, 12 L. T. (N. S.) 199 (1865), and see 59 Univ. 
 of Pa. L. Rev. 407. 
 
 ^Arguments of counsel and part of opinion omitted.
 
 no PAKTIKS 
 
 not matter for impeachment of the jiult;ment except upon direct 
 assault. 
 
 In chancery, infant defendants can only be brought in by serv- 
 ice ujmn their parents or either of them, if in life, or upon their 
 general guardian, in case the parents are dead ; provided such par- 
 ents or guardian are not adversely interested, and in this latter case, 
 or if there be no parent or guardian, then upon the infant person- 
 ally if over fourteen years of age, etc. Code, p. 814, R. 23. Hence, 
 wliat is said in Daily's admr. v. Reid, 74 Ala. 415, 417, as to the 
 invalidity of a decree pro confesso against an infant has no applica- 
 tion to a judgment at law on personal service against an infant de- 
 fendant, especially in view of the doctrine there announced that the 
 chancery court "is the guardian of all infant litigants before it, and 
 will permit no such irregularity and error [as the taking of a decree 
 pro confesso against an infant] to pass unredressed." Nor was it 
 intended by this language of the court in that case, as counsel in- 
 sist, to convey the idea that the substantive rights of an infant stood 
 upon a plane different from and higher than the rights of persons 
 sui juris, or were to be adjudged by a different standard, but only 
 that the court would so far act as his guardian as to see it that his 
 abstract rights were properly presented to and represented before 
 the forum of conscience, but this is not to say that a court of equity, 
 any more than a common law court, when the claim of the infant 
 is fully presented, would grant any other relief on the merits thereof 
 than an adult litigant would be entitled to on the same facts. It is, 
 therefore, quite an error to suppose that chancery will enjoin a judg- 
 ment at law against an infant which is not void and merely irregular 
 and erroneous on the theory that it is the guardian of all infant 
 litigants, wdien it is without competency to enjoin such a judgment 
 against a person of full age. The w^ell settled law is that chancery 
 has no jurisdiction to enjoin any judgment at law for irregularities 
 attending, and errors committed by the court in, the rendition 
 thereof unless such irregularities or errors were of a character to 
 avoid the judgment ipso facto; a merely erroneous and irregular 
 judgment whether against infants or adults will not be enjoined; a 
 void judgment against either will be. We have seen that the judg- 
 ment sought to be enjoined here was of the former class; it was 
 irregular and erroneous but not void. This appears by the bill. And 
 this is the only ground upon which relief by injunction is sought; 
 no surprise, accident, mistake or fraud is alleged. The bill was, 
 therefore, without equity. The court erred in overruling the mo- 
 tion to dismiss for want of equity, and also in overruling those 
 assignments of demurrer which went to the point we have been 
 considering. 2 Freeman on Judgments, §§ 489, 513; 10 A. & E. 
 Ency. of Law, pp. 889 et seq. ; 12 lb. p. 147a; Collier and Wife v. 
 Falk, 66 Ala. 223, 228; Murphree v. Bishop, 79 Ala. 404; Preston v. 
 Dunn, 25 Ala. 507. 
 
 Reversed and remanded.^^ 
 
 *°As an infant can only appear and defend by a guardian ad litem the 
 omission to appoint such a guardian is reversible error in all cases unless it
 
 SYBELL BELKNAP S CASE III 
 
 (b) Married Women. 
 
 SYBELL BELKNAP'S CASE. 
 In the King's Bench, 1400. 
 Year Book, i Henry IV, i, PI. 2. 
 
 Our lord the King brings a writ of ward against Sybell Belknap 
 and the writ brought by the King was held good. Cokeine. Judgment 
 of the writ, since she is covert of a husband at the time of the writ, 
 etc. Skrene. Your husband for a crime which he committed 
 against the King and divers of his peers was banished to Gascony to 
 remain there until pardoned by the King. 
 
 Wherefore Gascoigne, ex assensu sociorum, said to the defend- 
 ant, answer. 
 
 And after that she pleads in bar."" M. 10 Ed. Ill, 53. 
 
 \ appears that the judgment is for the infant and not to his prejudice. Langston 
 /v. Bassette, 104 Va. 47 (1905) ; Weaver v. Glenn, 104 Va. 443 (1905) ; Sliver 
 I V. Shelback, i Pall. (Pa.) 165 (1786) ; Duncan v. Sand ford, 14 Johns. (N. Y.) ^ 
 ( 417 (1817) : Moore v. M'Ewen, s S. & R. (Pa.) ^7^ (1819) ; Foulkes v. 
 / Yoking, 21 N. J. L. 438 (1848) ; McMiirray v. McMurray, 60 Barb. (N. Y.) 
 ' 117 (1870) ; Wells V. Wells, 144 Mo. 198 (1898) ; White v. Kilmartin, 205 111. 
 525 (1903) ; Winterroth v. Cox, 75 Misc. (N. Y.) 467 (1912). But such omis- 
 
 !)sion does not render the judgment or decree void. It is merely voidable and 
 not open to collateral attack. Austin v. Charleston F. Seminary, 49 Mass. 
 196 (1844) ; Keller v. Wilson, 90 Ky. 350 (1890) ; Millard v. Mormon, 116 111. 
 649 (1886) ; Childs v. Lanterman, 103 Cal. 387 (1894) ; Smith v. Blood, 106 
 ' App. Div. (N. Y.) 317 (1905), unless obtained by fraud or collusion, Mc- 
 Murray v. McMurray, 66 N. Y. 175 (1876) ; Wettrick v. Martin, 181 111. App. 
 94 (1913). On the other hand the failure to appoint a guardian ad litem for 
 an infant plaintiff before bringing suit is not a jurisdictional defect but a 
 mere irregularity which may be cured or waived. Rima v. Rossie Iron Works, 
 120 N. Y. 433 (1890) ; Foley v. California Horseshoe Co., 115 Cal. 184 (1896) ; 
 Chrisman v. Divinia, 141 Mo. 122 (1897) ; Parkins v. Alexander, 105 Iowa 
 74 (1898). 
 
 "" In a case reported in the following year, Y. B. 2. Hen. IV., 7, pi. 26 : 
 "It was testified by the justices that the wife of Sir Robert Belknap, who was 
 exiled, sued a writ alone, her husband not being named in the writ, and, by 
 their award in that suit, the said suit was sufficient because her husband was 
 attainted at law." Markham, J. said: 
 
 Ecce modo mirum, quod foemina fert breve Regis, 
 Non nominando virum conjunctum robore legis. 
 The lady was the wife of the former chief justice of the court of common 
 pleas banished in the reign of Richard II. 4 Foss' Judges 35. 
 
 "If an action be brought against a husband and wife for the debt of the 
 wife, when sole, and the plaintiff recovers judgment, the capias shall 
 issue to take both husband and wife in execution: but, if the action was 
 originally brought against herself when sole, and pending the suit she mar- 
 ries, the capias shall be awarded against her only, and not against her hus- 
 band. Yet, if judgment be recovered against a husband and v/ife for the 
 contract, nay, even for the personal misbehavior of the wife during her cov- 
 erture, the capias shall issue against the husband only: which is one of the 
 many great privileges of English wives." Ill Blackstone's Commentaries 414.
 
 112 PARTI F.S 
 
 h.\tciii-:tt r. badi)i-:li-:v. 
 
 Court oi' Common Pleas, 1776. 
 2 irilliani Bhickstoiu-'s Ri'f^orts, 1070. 
 
 X 
 
 Case cTi^^ainst the (lefendant Sophia luuldclev [without any addi- 
 tion] by John Hatchett and William P.oyse, coachniakcrs on indebti- 
 tartus assumpsit, for work and labor done, and tinchng and providing 
 materials and other necessary things for the defendant's use. She 
 pleads nonassumpsit and also that at the time "when", etc., she 
 was married to one Robert Baddeley, her husband, who is still 
 alive; the plaintiff replies, protestando as to the marriage, that the 
 defendant, before the cause of action accrued, eloped from the 
 said Robert Baddeley. and hath ever since lived separate from him, 
 "and that the work v\as done on her credit only. The defendant did 
 not rejoin in due time, and judgment w'as signed by the ])laintiffs 
 on the 5th of February, 1776, for want of a rejoinder. On the 7th 
 of February in last term. Walker moved in arrest of final judgment 
 (having meant to demur to the replication, but by accident slipped 
 his time) that the replication was bad; because, i. Supposing the 
 facts to be true, it does not therefore follow that she is liable to be 
 sued alone. 2. It should not have been alleged that she eloped, but 
 that she lived in adultery. .So in Rast. 230, pi. 9 in bar of dower, 
 and Robins. Entr, 260. 3. It should have stated the cause of action 
 to have been for necessaries. And now in this term. 
 
 Hill and Glyn showed for cause, that the replication is good. 
 IClopement is a well known term in the law, and signifies a wife's 
 departing from her husband, and dwelling with the adulterer. 
 Terms de la Ley; Co. Litt. 32a. If the wife elopes, the husband is 
 not liable to pay for what she takes up on credit. Lungworthy and 
 Hackmore, Ld. Raym. 444. No, not even for necessaries. Stra. 647, 
 706. S. P. resolved in Manhy and Scott, if they are separated, 
 though not for adultery. And in Deerley and Duchess of Mazarine, 
 Salk. 116. whose husband was abroad, the court intended, that they 
 were divorced, and refused to relieve her against a verdict. 
 
 (jlvn also cited CliUd and Hurdx'.v.an (Mr. Nott's Case.) Stra. 
 
 Walker in sup[)ort f)f the rule, insisted, that the very admission 
 of the fact of coverture destroys the action. If a feme covert 
 appears as a feme sole, and has judgment against her, she and her 
 luisband may set it aside by writ of error, alleging the coverture, i 
 Roll. Abr. 759. Styl. 254, 280. The eloj)ement mentioned in the 
 books, is merely a cause of losing the wife's dower, introduced by 
 the statute of 13 Ed. 1. ch. 34, and did not exist at common law. 
 It is not incumbent on me to maintain that an action lies against 
 the husband for this coachmaker's bill ; it is enough that it does not 
 lie against the wife alone. It is the creditor's folly to trust her, and 
 (as is saifl in Stra. 875) he does it at his own peril.
 
 IIATCIIETT Z'. BADDELY II3 
 
 DeGrey, C. J.: The word elopement is not a legal term, nor 
 has any express meaning in the law. It is not to be found in Brac- 
 ton, Britton or Fleta; nor is used in the statutes of Westm. 2. The 
 Mirror indeed has the word elopa ; but in a different sense. And 
 none of the dictionaries, or etymologists explain the word, except 
 Blount and Jacob. Lord Coke is the first that I remember to have 
 mentioned it, and he speaks 2 Inst. 435 of a wife's eloping and re- 
 maining with an adulterer. The modern books never speak of elope- 
 nuent, but in a criminal view. 
 
 But it is quite indifferent, as to forming my opinion on this case, 
 in what sense the word is to be taken. The present case is not that 
 of a woman having separate maintenance, and living apart from her 
 husband by his express permission ; but of a wife departing from her 
 husband's house, or if you please elo])ing without his consent. She 
 is in c\cr>- vicv, c\cm in respect of (lower (unless adultery be 
 "^rov'edj a feir.c co\erl; ;ni(l as sncli c'lii :ieitlier sue or be sued alone. 
 This is tiie i^em ral law. The ex,-e]>[ions to this are: 
 
 1. Local customs, as in the city of London, where a feme covert, 
 being a sole trader, may be sued. But there the husband must be 
 joined in the action at the outset, for conformity. 
 
 2. The wife of an exile, one abjuring the realm, or perhaps one 
 professed; who are looked upon as dead in law. 
 
 3. The same law has been extended to cases somewhat like the 
 former, as the Duchess of Mazarine's case, whose husband lived in 
 France. 
 
 All these are by the acts of the husband, but no act of the wife 
 can ever make her liable to be sued alone. If she can be sued, she 
 can sue, acquire property, release actions, execute deeds, etc., 
 which would overturn first principles. On the whole, therefore, I 
 am clearly of opinion the defendant is not in a capacity to be sued 
 alone. 
 
 Gould, J. : I think this case is not ripe for a general determina- 
 tion upon principles, because in my opinion the replication is ill 
 pleaded. Elopement is a word of too vague and uncertain a mean- 
 ing. If adultery is intended by it, it should not be thus insinuated, 
 but plainly expressed. 6 Edw. Ill 39. Rastel. Dower t. Bar. e. It 
 is on this I found my opinion. 
 
 Blackstone, J. : It seems to be supposed by the argument, that 
 if the husband is not bound to pay this debt, it follows that the wife 
 may be compelled alone. But this is no legal consequence. I think 
 in the present case, that it can not be recovered of either. And I 
 see no hardship in a man's losing his money, that avows upon the 
 record, that he furnished a coach to the wife of a player whom he 
 knew to have run away from her husband. If this were universally 
 known to be law, it would be difficult for such women to gain credit ; 
 and this would consequently reduce the number of wanderers. But, 
 be this as it may, I am clearly of the opinion that in no case can any 
 feme covert be sued alone, except in the known excepted cases of 
 abjuration, exile, and the like; where the husband is considered as 
 dead, and the woman as a widow or else as divorced a vinculo. Co. 
 
 8 — Cjv. Proc.
 
 114 rAKTll'S 
 
 Lit. r^^^v Aiul ihcrol'orc IJizabctli W'ilnK-t, whose husband was 
 ahrivncl. when she attempted to sue alone, Moor 851, did it with the 
 addition o\ widow. The contrary doctrine mihtates ag'ainst the first 
 principles of the ICntjlish law, wliich considers the woman's powers, 
 nay almost her very being;, as sus[)endcd durinjj the coverture. Her 
 contract is merely void so as to bind herself, say all the judges in 
 .\finib\' anil Scot, i Sid. 120. She and her luisband may ])lead non 
 est factum to her bond. Salk. 7. 6 Mod. 311. 2 Wms. 144. If 
 judgment be had against her, or she be outlawed, her husband and 
 she may reverse it by writ of error. Bro. Abr. ICrror. 173. The 
 very forms of the action demonstrate the same thing. If sued alone 
 she can have no addition (as in the case at bar) which is in the teeth 
 of die statute of i Hen. V. c. 5. If sued by her maiden name it is 
 misnomer, 6 Mod. 311. vShe can not ]Hit in bail without her hus- 
 band. Cro. Jac. 445. If l)y her husband's name and as widow it 
 is the like. And as the previous steps are thus embarrassed, so after 
 judgment the remedy must prove defective. No elegit can go 
 against her lands, else this would be a mode of alienation by a feme 
 covert without a fine. It would be endless to pursue this idea 
 through all its legal absurdities. And therefore I am clearly of 
 opinion for arresting the judgment. 
 
 Nares, J., concurred in opinion, that no action would lie against 
 a feme covert without her husband. Therefore, 
 
 Judgment arrested per tot. Cur.''^ 
 
 / 
 
 "At common law a married woman could not sue or be sued as a feme 
 sole unless her husband was an alien who had always resided abroad or was 
 civillv dead. Marsh v. Hutchisson, 2 B. & P. 226 (1800) ; Marshall v. Rut ton, 
 8 Tei-m Rep. 545 (1800) ; Carrol v. Blencon, 4 Espin. N. P. 27 (1801) ; Kay v. 
 Dnchcsse Dc Picnnc, 3 Camp. 123 (1811) ; Lewis v. Lee, 3 B. & C. 291 (1824) ; 
 Bardcn V. Kcrcrherv, 2 M. & \V. 61 (1836); Gregory v. Paul, 15 Mass. 30 
 (1818) ; Pr yyv V Bnilrnn TO S K^ R. (Pa.) 208J 282O ; StocktOH V. Farley. 
 10 W. Va. 171 (1877). In FLquity too, the rule was to join the husband as 
 the natural protector of her interests. Bein v. Heath, 6 How. (U. S.) 228 
 (1848) ; Burns v. Lynde, 88 Mass. 305 (1863). Where, however, the equity of 
 the wife is adverse to her husband a next friend sliould be joined as complain- 
 ant and the husband made a defendant. Johnson v. Vail, 14 N. J. Eq. 
 423 (1862) ; Porter v. Bank of Rnthland, 19 Vt. 410 (1847). See Roberts v. 
 Evans, L. R. (1878) 7 Ch. Div. 830. As at law, the equity rule has been mod- 
 ified in modern practice under the statutes enlargins the married women's 
 riphts. Forbes v. Tuckennan, 115 Mass. 115 (1874) ; JJeckman v. Ileckman. 
 2i5Pa. 202(1906). In matrimonial cases the wife sued or defended without 
 Tf fVJVr IHeml. Van Ordcn v. Van Orden, 58 N. J. Eq. 545 (1899). 
 
 It was formerly held that where the husband was a native, the wife could 
 not sue or be sued as a feme sole althoush deserted by the husband who had 
 pone abroad. Bogget v. Frier, 11 East 301 (1809) ; Robinson v. Reynolds, I 
 Aiken (Vt.) 174 (1826). In America the rule was relaxed and it has been 
 frequently held that where a husband has permanently abandoned his wife, 
 the latter may sue or be sued as a feme sole. Arthur v. Broadnax, 3 Ala. 557 
 (1842) ; Love v. Moyneham, 16 111. 277 (1855) and cases tliere cited; Oshorn 
 V. Nelson, 59 Barb. (N. Y.) 375 (1871) ; Wolf v. Baureis, 72 Md 481 (1890). 
 This is frequently a matter of statutory provision. Matterson v. Dederkey, 
 12 R. I. 68 (1879) ; Heath v. Morgan, 117 N. Car. 504, 22, S. E. 489 (1895) ; 
 Muller V. Hale, 138 Cal. 163 (1902); Koch^v. Williamsport, 195 Pa. 488 
 (irKX)) ; Schmeher v. Chester Traction Co., 218 Pa. 29 (1907).
 
 STARR V. TAYLOR 1 15 
 
 STARR V. ANN TAYLOR, alias TAYLOR & CO. 
 
 Court of Appeals of South Carolina, 1828. 
 
 4 McCord L. {S. Car.) 413. 
 
 This was a suit by sum. pro. brought on a note signed Taylor & 
 Co. against Ann Taylor, a sole-trader, without joining her husband. 
 
 The defendant pleaded that she was feme covert, and although 
 a sole-trader, yet that her husband's name should have been joined 
 for conformity sake. The plaintiff replied, that by the Act of As- 
 sembly of 1744, (Pub. Laws 190, 2d Brev. Dig. 348,) it was enacted 
 that a feme covert, a sole-trader, might be sued as a feme sole, 
 without joining her husband. Gaillard, J., presiding, overruled the 
 objection of the defendant, and gave a decree for tlie plaintiff. 
 McCord for the defendant appealed on the ground that the husband 
 should have been joined.^- 
 
 CoLcocK, J. : The clause of our act is in the f ollov/ing words : 
 "That any feme covert being a sole-trader in this province, shall be 
 liable to any suit or action to be brought against her for any debt 
 contracted as a sole-trader, and shall also have full power and au- 
 thority to sue for and recover, naming the husband for conformity, 
 from any person whatsoever, all such debts as have or shall be 
 contracted with her as a sole-trader. And that all proceedings to 
 judgment and execution, by or against such feme covert, being a sole 
 trader, shall be as if such woman was sole and not under coverture, 
 any lav/ or custom to the contrary thereof in anywise notwith- 
 standing." 
 
 If Vv-e had no other guide to direct us in this case than the act, 
 the opinion of the presiding judge might be supported; for it would 
 appear from the construction of the clause, that the joining of the 
 husband for conformity relates only to the power which is given to 
 her to sue. It does seem to have declared in the first part of the 
 clause, that she may be sued for debts contracted as sole trader, 
 without the necessity of the husband being joined. But when we 
 trace this departure from the law, which relates to husband and 
 wife to its source, v/e can not but perceive the meaning of the legis- 
 lature although somewhat ambiguously expressed. This partial 
 dissolution of the contract of marriage originated in a custom of 
 London, and upon turning to the authorities, it will be found to be 
 expressed in language very similar to that of our act, and that even 
 in the city courts there the husband must be joined, (as it is said 
 for conformity) v/hether she sue or be sued; and as Lord Eldon 
 says, in the case of Beard v. Wehh, 2 Bos. & Pul. 99, it will be diffi- 
 cult to show that the right to sue, and the liability to be sued, do not 
 stand upon the same footing. In that case, the first question was, 
 whether a feme covert, sole-trader in London, is liable to be sued 
 as such at Westminster, and whether the husband ought not to be 
 joined in the action? On the first, Lord Eldon decides that she 
 
 "Arguments of counsel and part of the opinion are omitted.
 
 Il6 PARTII'S 
 
 could not be sued iu that court; anJ, on the second, he goes into a 
 most elaborate argument, and refers to all the authorities that can 
 be found on the sul)iect. And, since his decision in that case, which 
 was in iSoo, I do not iind that the point has been ducstioned, but 
 seems to be spoken of as settled. * * * 
 
 In this elaborate opitiion. Lord h^ldon adverts to what may 
 be considered as the only argument against this rule of law, which 
 is, that it is absurd to join a party in an action against \vhoni there 
 can be no judgment. But, he says, "the question is, whether upon the 
 authority of this single dictum we are to overturn the series of deci- 
 sions which I have traced from ist Eldw. — , to the present day." — 
 He concludes by examining some cases of settlements, in which 
 there appear to have been some doubts at least, entertained on this 
 point. But the case of Marshall v. Rutton, 8 Term Rep. 545, had 
 not been at this time decided, but was ])cnding before the twelve 
 judges, in which it is decided that a feme covert can not contract 
 and be sued as a feme sole, even though she be living apart from her 
 husband, having a separate maintenance secured to her by deed. 
 
 I am of the opinion, therefore, that when the legislature intro- 
 duced by act diis custom of London, they meant to introduce it as 
 practiced tb.ere ; and I feel no disposition, nor do I think it comports 
 with the sacred contract of marriage, or the good of the commu- 
 nity, to extend this partial dissolution of the husband's authority 
 over the wife, and to subject her to be torn from her family by the 
 rude hands of unfeeling bailitTs, at a moment when, perhaps, they 
 may most need her assistance. 
 Motion granted.'-*' 
 
 "'By the custom of London "where a woman exerciseth a trade wherein 
 her husband doth not intermeddle, she shall have all advantapes, and shall 
 be sued as a feme sole merchant," Bohim's Privileges of London, 187. But 
 a feme sole trader of London was not liable to be sued as such in the courts 
 at Westminster and even in the citv courts the husband was joined for con- 
 formitv. Y. B. Q Edward IV. 35. Candell v. Shazv. 4 T. R. 361 (179O ; Beard 
 V. Webb, 2 B. & P. 93 (1800), where the cases are reviewed. South Carolina 
 seems to have adopted the custom more completely than the other states. 
 Megrath v. Robertson, i Desaussure's S. Car. Eq. 445 (1705) ; Newbiggin v. 
 Pillciis. 2 Bav (S. Car.) 162 (1798) ; MeDaniel v. Cornwall, 9 Hill S. Car. L. 
 277 (i833);'Dio/ v. Heuffer, 3 Richardson S. Car. 78 (1846); Hobart v. 
 Lemon. 3 Richardson S. Car. L. 131 (1846). The existence of the custom has 
 been denied in other states, iltlerville v. Barber, S2 Miss. 168 (1876) ; Carey 
 V. Burruss, 2 VV. Va. 571 (1882). In Pennsylvania by the act of February 22, 
 1 718, I Sm. L. 09, § 1, where mariners or others went to sea leaving their 
 Kvives at shop-keeping or other trades, such wives were deerned feme sole 
 /traders and authorized to sue and be sued without naming their husbands as 
 /parties. RurLcJi^injde^ 2 S. & R.^JPii4-l^3Llj8i6) ; Jacobs v. Featherstotie, 
 I 6 W. & S. (Pa.) .^46 '(1843) ■ By the act ofMay 4, iSsS, P. L. 430, §§ 2, 4, 
 I wHefF^ husband neglects to provide for or deserts his wife, she shall have 
 I the privileges of the act of 1718 and, on petition, will be granted a certificate 
 to that effect. IVuUermtzjv. Porter, 86 ]\a. 2>K C1877) ; Eunng's Af-^^eal^jioi 
 Pa. 371 iiSS'jl-rr.llison v. A >idrrson; 110 Pa. 486 (1885) and P. & L. Dig. of 
 Pa. Dec, vol. 8, coT 13Q02. 
 
 In other states similar statutes authorizing married women to engage in 
 trade also provide that they may sue and be sued alone in respect to matters inci- 
 dental to the business. Young v. Gori, 13 Abb. Pr. (N. Y.) 13 note (1861) ; Klen 
 v. Gibney, 24 How. Pr. (N. Y.) 31 (1862) ; Foster v. Conger, 61 Barb. (X. Y.)
 
 I.UMLEY t'. TORSIELLO llj 
 
 \ 
 
 LUMLEY V. TORSIELLO. 
 Supreme Court of New York, 1902. 
 
 69 App. Div. {K. Y.) 76. 
 
 Ingraham, J. : The action is brought to recover for the conver- 
 sion of a United States bond of the par value of $1,000 and $165 in 
 money dehvered b\- the plaintiff to the defendant as her agent. The 
 answer denied eacli of the allegations of the complaint. Upon the 
 trial the court submitted the case to the jury with a charge to which 
 there was no exception, and the jury found a verdict for the plaintiff. 
 The ques'tion" upon this appeal is presented upon the denial of a mo- 
 tion to dismiss the complaint at the end of the plaintiff's case, re- 
 newed at the end of the defendant's case, to which rulings the de- 
 fendant excepted.^* 
 
 The defendant ba_s£dJus_motion to dismiss the complaint upon 
 the qround that tlic ])laintiff being a married woman could not main- 
 ~tain an action to recover this bond and money delivered to tlie 
 defendant without proving tliat she had a separate estate, but this 
 contention is based upon an evident misconception of the rights of a 
 married woman under the law of this state. By section 21 of the Do- 
 mestic Relations Lav>-s (Laws of 1896, ch. 2y2) it is provided that "A 
 married woman has all the rights in respect to property, real or 
 personal, and the acquisition, use, enjoyment and disposition there- 
 of, and to make contracts in respect thereto with any person, in- 
 cluding her husband, * * * as if she were unmarried"; and 
 by section 450 of the Code of Civil Procedure it is provided that "in\ 
 an action or special proceeding a married woman appears, prose- I 
 cutes or defends alone, or joined with other parties, as if she was 
 single." There can be no question but what, if the plaintiff was a 
 single woman, upon evidence that she delivered money or property 
 to the defendant upon his promise to return them to her, she could 
 maintain an action to recover such property without proof of odier 
 facts as to ownership. How she obtained possession of this money 
 or property would be entirely immaterial to the defendant. As a 
 married woman now sues in respect to such property as if she 
 were single, a defendant who receives from a married woman 
 
 145 (1871) ; Parker V. Symonds, 93 Mass. 258 (1861) ; Todd v. Clapp, 118 Alass. 
 495 (1875) ; Rock-ii'ell v. Clark, 44 Conn. 534 (1877) ; Meyers v. Rahte, 40 Wis. 
 655 (1879); Camden v. Mullen, 29 Cal. 564 (1866); Trieher v. Stover, 30 
 Ark. 727 (1875) ; Wallace v. Rowley, 91 Ind. 586 (1883). As to farming com- 
 pare Snow V. Sheldon, 126 Mass. 332 (1879) with Jn re Long, Ir. Rep., 2 K. 
 B. 343 (1905). 
 
 In England the married v/oman's property act o£ 1882 (45 & 46 Victoria, 
 ch. 75, §§ I, 5) provides that a married woman carrying on a trade sepa- 
 rately from her husband shall, in respect to her separate estate, be subject to 
 the bankruptcy laws. In re Gardiner, L. R. (1888) 20 Q. B. Diy. 249. In the 
 United States a married woman can be declared a bankrupt if she has the 
 requisite capacity under the state law to contract debts in trade. MacDonald 
 V. Teit Weller Co., 128 Fed. 381 (1Q04). 
 
 '^ Part of tlie opinion is omitted.
 
 IlS I'ARTIF.S 
 
 money or property with a promise to return it to her, can no more 
 object to her suing to recover jiosscssion of it on the ground that the 
 source of her title to the property is not proved than lie could if she 
 were single. 
 
 Upon the whole case we think there was no substantial dispute 
 as to the plaintiff's right to recover; that the verdict of the jury was 
 amply sustained by the evidence and that no error was committed 
 which would justify a reversal of the judgment. 
 
 The judgment and order appealed from are, therefore, affirmed, 
 with costs. 
 
 Van Brunt, P. ]., O'Brien and Hatch, ]]., concurred. '•^ 
 
 "The removal of the disabilities of coverture has been accomplished 
 gradually by successive statutes ; in some states the process is still incom- 
 plete. Hence it is impossible to state any general rules on this subject, but 
 in each case the statutes of the particular state must be consulted. The 
 progress of the law may be illustrated by tiie New York codes. Under the 
 earlier code (§ 114) it was provided that where a married woman was a 
 party, her husband must be joined except, (i) where the action concerned 
 her separate property, (2) where the action was between herself and her 
 husband. Palmer v. Davis, 28 N. Y. 242 (1863). This section has been fol- 
 lowed in the codes of other states, for example California Code of Civil 
 Procedure § 370. In other states statutes have conferred similar rights so 
 that in nearly all jurisdictions a married woman may sue or be sued alone in 
 reference to her separate property. Emerson v. Clayton, 32 111. 493 (1863) I 
 Securer v. Sioux City R. Co., 2.2 Minn. 29 (1875) ; Van Cleve v. Rook, 40 N. 
 J. L. 25 (1878) ; Stevenson v. Morris, 37 Ohio St. 10 (1881) ; IVeldon v. De 
 Bathe, L. R. (1884), 14 Q. B. Div. 339; Wolfe v. Underivood, 91 Ala. 523 
 (1890); Norfolk R. Co. v. Dougherty, 92 Va. 372 (1895); Hutton v. Wil- 
 mington C. R. Co., 3 Penn. (Del.) 159 (1901). 
 
 The Code of Civil Procedure of New York § 450 as amended in 1890 
 and 1909, provides : "In an action or special proceeding a married woman ap- 
 pears, prosecutes or defends alone or joined with other parties as if she was 
 single. It is not necessarj^ or proper to join her husband with her as a party 
 in any action or special proceeding affecting her separate property. The 
 iiusband is not a necessary or proper party to an action or special proceeding 
 to recover damages to the person, estate or character of his wife. The 
 husband is not a necessarj' or proper party to an action or special proceeding 
 to recover damages to the person, estate or character of another on account 
 of the wrongful acts of his wife committed without his instigation." Janinsky 
 V. Heidelberg, 21 Hun (N. Y.) 439 (1880); Qitilty v. Battie, 135 N. Y. 201 
 (1892). In the words of Vann, J.: "All courts are open to her and she can 
 enter them with the freedom of a man." }*/inter v. Winter, 191 N. Y. 462 
 (1908). 
 
 In Pennsylvania, the Act of June 8, 1893 (P. L. 345, § 3) provides: 
 "Hereafter a married woman may sue and be sued civilly in all respects 
 and in any form of action and with the same effect and results and conse- 
 quences as an unmarried person." But she may not sue her husband, 
 nor he her, except in a proceeding for divorce, or in a proceeding to protect 
 or recover her or his separate property where there lias been desertion 
 without sufficient cause. Nor may she be arrested or imprisoned for her torts. 
 I 3 P. & L. Dig. (2d ed.) 4879. Littste^\ /,t».f/ 'r>\TjTPa^j7^i( rSn-?) : Stahr 
 ■ V /?r.^7.v r. ^^^ ^' ^'"'3 (^8^?^^ ; (justmev. IVc stc nBcrmr, 224 h^ 455 CIS09). 
 The act of i8f>3 does not deprive a married wornan 01 the rightTTrtiTvoke the 
 aid of a court of equity to secure the possession of her separate property 
 against the fraud of her husband. Heck nian v. IIccktuan^-2\s Pa. 203 (1906). 
 See also Lav.s of New Jersey, May 17, 1906 (P. L. 525) ; Iowa Code (1897) 
 §§ 3162, 3164; Revised Laws of Minnesota Supplement (1907) § 3607. Bliss 
 on Code Pleading (3d ed.) § 34. 
 
 Where the action is in respect to the wife's separate property it has.
 
 HARRIS V. WEBSTER 119 
 
 HARRIS V. WEBSTER. 4^ 
 
 Supreme Court of New Hampshire, 1878. 
 58 N. //. 481. 
 
 Case for slanderous words spoken of Mrs. Harris by Mrs. 
 Webster. The defendants demurred. 
 
 Foster, J. : By the doctrine of the EngHsh common law, hus- 
 ban_d_and wife havealways been requiredto sue jointly for injuries 
 To'tlae peFson of' character "of the wife, committed during coverture. 
 Dfcey on Parties 389; i Ch. PI. y2>- The wrongful act — for exam- 
 ple, an assault upon the wife — may involve two distinct wrongs, 
 and afford two distinct causes of action. The first is the assault 
 upon the wife; and the second is the damage occasioned thereby 
 (through loss of service) to the husband. The husband can not 
 sue alone merely for the injury done to the wife, but he may sue 
 alone for the damage occasioned thereby to himself.^'' In like man- 
 ner, at common law, in an action for the slander of the wife, if the 
 words are actionable per se, the husband and wife must join in a 
 suit for the direct injury to her {Dengate v. Gardiner, 4 M. & W. 
 5), but the husband must sue alone for consequential damage to 
 him; and so, also, if the words are not actionable in themselves, but 
 only because tliev cause damage to the husband, he must sue alone; 
 t^ie'wife can net j<jin. Dicey on Parties 391, 392."" So, also, at com- 
 mon law, husband and wife must be sued jointly for all torts 
 committed by the wife during coverture, unless the tort be commit- 
 ted in the presence and by the direction of the husband, in which 
 case he alone is liable. Dicey on Parties, 476 ; i Starkie on Slander 
 349; I Ch. PI. 93; Carleton v. Hayward, 49 N. H. 314-^® 
 
 in some jurisdictions, been held that she should sue alone. Ackcrly v. Tarhox, 
 31 N. Y. 564 (1864) ; Whiddcn v. Coleman, 47 N. H. 297 (1867) ; Donahue v. 
 Hubbard, 154 Mass. 537 (i8qi) ; Poiv eils Esta tes Pa,_RR._^ (1894); 
 but not if the husband has any marital rights tnefein. Swcrdfergcr v. Hopkins, 
 67 Vt. 136 (1894). In some cases it has been held that, if the wife so elects, 
 she may join her husband as a co-plaintiff. Van Mar en v. Johnson, 15 Cal. 308 
 (i86oy;Atk{nson v. Mott, 102 Ind. 431 (1885) ; Clay v. St. Albans, 43 W. Va. 
 539 (1897). 
 
 '■"Lewis V. Babcock, 18 Johns. (N. Y.) 443 (1821) ; Barnes v. Martin, 15 
 Wis. 240 (1862) ; Berger v. 'Jacobs, 21 Mich. 215 (1870). 
 
 ""'• Beach v. Ranney, 2 Hill (N. Y.) 309 (1842) -. Jimith v. Sm ith, 4=; Pa. 
 403 (1863); Rndcrs v. Beach, 18 Iowa 86 (1864); Harper v. Pinkston, 112 
 N. Car. 293 (1893). Compare Garrison v. Sun Pub. Co., 207 N. Y. i (1912) ; 
 Kovacs V. Mayoras, 175 Mich. 582, 141 N. W. 662 (1913). 
 
 ""^JHawk V. Har mnn. ^ Binnev (Pa.) 43 i i8i2) ; Catterall v. Kenyon, 3 
 Ad. &E1. (N. S.) 310 (1842) ; Marshall v. Oakes, 51 Alaine 308 (1864) ; Davis 
 V. Taylor, 41 111. 405 (1866) ; note to Chicago B. & R. Co. v. Honey, 12 C. 
 C. A. 190 (1894). As to slander, Fitzgerald v. Quann, 109 N. Y. 441 (1888) ; 
 Jackson V. Williams, 92 Ark. 486 (1909), and 30 L. R. A. 521. 
 
 In Hess v. Heft,_2tV3 ^u-^cv. Ct._ s82__(i897), an action for malicious 
 prosecution was lirought against a husband and wife. It appeared that the 
 complaint which led to the arrest was signed by both the defendants. Held 
 that the husband alone was liable. In Smith v. MqcbjlSlie^ 238 E a — §^ 
 (1913) it was held improper to join the husband as defendant with his wife
 
 IJO PAKTIKS 
 
 At common law the wife alone can neither sue nor be sued. 
 The reason of this is founded upon tlie general doctrine of conju- 
 gal union expressed by "the father of the English common law," 
 in the emjihatic and sacred phrase, "Man and wife are the same 
 flesh." Simt idon corfyus et eadon caro, vir et uxor. Bracton, f. 
 31. Sunt quasi u)iica persona, quis caro una et sanguis iinus. 
 Bracton. f. 430. And herein, says an old writer, "The common 
 law shaketh hands with divinitie" — an illustration of tlie habit of 
 presenting every established fact which is too bad to admit of any 
 other defense, as an injunction of religion. Mill on the Subjection 
 of Women 84. All persons are either free of serfs. Also, some 
 are under the rod (sub virga), as wives, etc. Bracton, f. 46. 
 
 "By marriage, husband and wife become one person in law ; 
 tliat is, the very being or legal existence of the wife is suspended 
 during the marriage, or, at least, is incorporated and consolidated 
 into that of the husband, under whose wing, protection, and cover 
 she performs everything; and is therefore called in our law-French, 
 a feme-covert, foemina viro co-operta; is said to be covert-baron, 
 or under the protection and influence of her husband, her baron or 
 lord ; and her condition during her marriage is called her cover- 
 ture. * * * For this reason a man can not grant anything to 
 his wife, or enter into covenant with her, for the grant would be 
 to suppose her separate existence ; and to covenant with her would 
 be only to covenant with himself." i Bl. Com. 442. "It is a well 
 established maxim of the law, that husband and wife are one per- 
 son. For many purposes, this is a mere figure of speech; for other 
 purposes, it must be understood in its literal sense." Lush, J., in 
 Phillips V. Barnet, L. R. i Q. B. Div. 436, 440. 
 
 By the common law, the married woman's contracts were abso- 
 lutely void, — not merely voidable, like those of infants and luna- 
 tics; and this, not because of the theory that, like an infant or a 
 lunatic, she required the protection of the law (for, in legal the- 
 ory, a wife needed the protection of the law no more than a single 
 woman), but because of the theory of the utter absorption of the 
 existence of the wife in that of the husband; or the other theory, 
 of her subjection and slavery. Both theories compelled the same 
 practical result: her legal personality was extinguished, and her 
 social personality was that of a slave, "under the rod." The social 
 condition and legal status of woman was the natural condition of 
 the age of feudalism which produced it — an age when every social 
 relation was governed by feudal analogies. It is not surprising, 
 therefore, that in such an age a theory of conjugal life should have 
 gained ground in England which seemed to reproduce at every 
 fireside the bond of lord and vassal, and to place the lord in the 
 attitude of Petruchio : 
 
 where the action was to recover damages for injuries resulting from lack of 
 care in the maintenance of a freight elevator in a building owned by the wife. 
 The negligence charged being that of the wife's employes.
 
 HARRIS v. WEBSTER 121 
 
 "I will be master of what is mine own : 
 She is my goods, my chattels ; she is my house 
 My household stuff, my field, my barn. 
 My horse, my ox, my ass, my anything." 
 Kenny on Married Women's Property 8. 
 
 The wife being thus sub potestate viri, with the sanction of the 
 law and of public opinion, the law was consistent in holding that 
 "if a man beat an outlaw, a traitor, a pagan, his villein, or his wife, 
 it is dispunishable, because, by the law common, these persons can 
 have no action." Brooke, J., 12 Hen. VIII 4.'='^ And the woman being 
 thus utterly within her husband's control, his chattel, his "ox," he 
 became personally and solely answerable for her torts, as for the 
 trespasses of his other domestic cattle; and, of course, the law 
 could pursue no other consistent system than that which declared 
 all her contracts absolutely void. 
 
 Such was tlie social and legal status of a married woman cen- 
 turies ago ; and the change of her condition before the law seems 
 to be much less in England than in New Hampshire. Phillips v. 
 Barnet, L. R. i O. B. Div. 436, 440. 
 
 But feudalism exists no longer, and the social and legal condi- 
 tions which the system produced have likewise passed away. The 
 benign influences of Christianity, and a more diffused as well as a 
 higher system of moral and intellectual education, have gradually 
 ameliorated the hardships of woman's social condition, and have 
 elevated her to the state of dignity and importance she possesses 
 to-day — a social position of honor and respect. The change has 
 been gradual but it has been as marked as any other step in the 
 course of advancing civilization, for it has been nothing less than 
 a slow but steady march from slavery to freedom. It has been 
 uniform in one respect: "Through all its course it has been dis- 
 tinguished by the gradual dissolution of family dependency, and 
 tlie growth of individual obligation in its place." Maine's Ancient 
 Law 163. 
 
 The movement has been "from status to contract." 18 Alb. 
 Law J. 26. And if it be true, as maintained by Spencer, that in the 
 United States "women have reached a higher status in the social 
 structure than anywhere else" (i Principles of Sociology 764), it 
 is equally true that in many of the states, certainly in New Hamp- 
 shire more than anywhere else, have the legal distinctions between 
 the sexes been swept away. 
 
 The law of servitude in marriage is repealed in this state. In 
 1842 the Revised Statutes empowered a deserted wife to hold and 
 convey property without the interference of her husband. Rev. 
 St., ch. 149, sec. I. Successive steps in the direction of a larger lib- 
 erty and a corresponding responsibility, * * * resulted finally 
 in the Act of 1876 (Laws, ch. 32). As the result of all this legisla- 
 tion, it is now settled that a wife may hold to her own use, free 
 
 ""Compare State v. Rhodes, 61 N. Car. 453, 98 Am. Dec. 78 (1866), with 
 Edmond's Appeal, 57 Pa. 232 (1868) ; i Haw kin's P. C. 130.
 
 122 PARTIES 
 
 from the interference or control of her husbantl, all property at 
 any time earned, acquired, or inherited by, beciueathed, given, or 
 conveyed to her, either before or after marria.y^e, and may make 
 contracts, and may sue and be sued in all matters, whether in law 
 or in equity, in the same manner as if she were sole and unmar- 
 ried. Thus by progress in the same direction, by changes religious, 
 social, customary, legislative, and judicial, the rule of the common 
 law has been abolished and obliterated; and it is no longer possi- 
 ble to say that in New Hampshire a married woman is a household 
 slave or chattel, or that in New Hampshire the conjugal unity is 
 represented solely by the husband. By custom and by statute the 
 wife is now joint master of the household, and not a slave or a 
 servant. The rule now is, that her legal existence is not suspended. 
 So practically has the ancient unity become dissevered and dis- 
 solved, that the wife may not only have her separate property, 
 contracts, credits, debts, wages, and causes of separate action 
 growing out of a violation of her personal rights, but she may 
 enter into legal contract wnth her husband and enforce it by suit 
 against him. Clough v. Russell, 55 N. H. 279.^ And since the 
 wife's property is no longer her husband's nor her earnings his, 
 by mere force of law, and since he has no more legal power of 
 physical control over her than she has over him, no more reason 
 seems to remain for holding him liable for her torts than for hold- 
 ing her liable for his. And there remains "not a reason, nor the 
 semblance of a reason, growing out of the condition and wants of 
 society, the progress of civilization, the exigencies of trade, or the 
 analogies of the law," why the rules and forms adapted to a condi- 
 tion which has ceased to exist, and inapplicable to the conditions 
 which have succeeded, should be longer retained. Cessante ratione 
 legis, cessat ipsa lex. Hammond v. Corhett, 50 N. H. 501, 507; 
 Cole v. Lake Co., 54 N. H. 242, 279, 285. 
 
 Why, then, should the husband of Mrs. Harris be joined in this 
 suit as a party plaintiff, any more than any stranger? None of his 
 legal rights have been invaded by the act of Mrs. Webster; and, 
 since his wife is entitled to hold to her separate use the fruits of 
 the judgment that may be rendered in this action, he can have no 
 right to or interest in the damages v\-hich may be recovered. 
 
 * In some states the statutes enlars::inR tlie rij^lits of married women 
 expressly save the common law inability of husband and wife to sue each 
 other. Lombard v. Morse, 155 Mass. 136 (1891) ; Ke nnedy v. Kni gjiLi'j^ Fa. 
 408 (i8q6) ; Drum v. Drum, 69 N. J. L. 557 (1003) ; I'lioml^son v TJwmp.wn, 
 218 U. S. 611 (1910) ; Perkins v. Blethen, 78 Atl. 574 (\faine 1911) ; Hjinijv, 
 Knehlcr, 2^6 Pa. 13 (1912) ; Lazvler v. Lawler, 107 Ark. 70 (191.3)- I" 
 other states actions at hiw may be maintained. Mathezvson v. Mathezvson, 
 79 Conn. 23 (1906) ; Winter v. Winter, 191 N. Y. 462 (1908). If an action at 
 law will not lie recourse may be had to equity. Woodward v. Woodward. 
 148 Mo. 241 (1898) ; Frankel v. Frankel, 173 Mass. 214 (1899) ; Reckjuanv. 
 Heckm an, 21 ^ Pa. 203 (1906) ; In re Hoffman, 199 Fed. 448 (1912) ; Fitclier 
 V. Griffiilis, 216 Mass. 174 (1913). As to separate property, see Lamer v. 
 Lamer, L. R. (1905) 2 K. B. Div. 539; Gillespie v. Gillespie, 64 Minn. 381 
 (1896). As to torts, see Peters v. Peters, 42 Iowa 182 (1875) ; Abbot v. Abbot, 
 67 Maine 304 (1877) : .S'wi//; v. Smith, 20 R. I. 556 (1898) ; Decker v. Kedly, 
 79 C. C. A. 305 (1906) and note.
 
 HARRIS V. WEBSTER 1 23 
 
 And why should the husband of Mrs. Webster be joined in this 
 suit as a party defendant? He has done no wrong, and neither he 
 nor his property can be holden for any damages or costs which may 
 be recovered. We are unable to discover any reason why the hus- 
 band of either party should be permitted to interfere in this con- 
 troversy, except so far as to persuade his wife to cease litigation. 
 Under recent statutes, antecedent to the law of 1876, it has been 
 held that a husband could not properly be joined as plaintiff in a 
 suit to recover his wife's earnings, nor in an action to recover a 
 debt which accrued to his wife before marriage, nor in a writ of 
 entry to recover possession of her land, nor in an action for tres- 
 pass upon her estate; and, as we have seen, in matters pertaining 
 to her own property, sfie may sue her husband and be sued by him. 
 Aibin v. Lord, 39 N. H. 196; Bank v. Clark, 46 N. H. 134; IVhid- 
 den V. Coleman, 47 N. H. 297; Cooper v. Alger, 51 N. H. 172; 
 Alexander v. Goodwin, 54 N. H. 423 ; Clough v. Russell, 55 N. H. 
 279; CaJioon v. Coe, 57 N. H. 556. The statute of 1876 is so broad 
 and sweeping in its terms as to preclude the supposition that it 
 could have had reference to matters of contract only. 
 
 We are therefore of the opinion, that, as at common law, so no 
 less under the operation of the statute, the rule of pleading must 
 prevail, which requires that an action at law must be brought in 
 the name of the party whose legal right has been affected, against 
 the party who committed or caused the injury (i Chitty PI. i; 
 Dicey on Parties 380-382) ; that the husbands of these female 
 parties are strangers, in law, to this proceeding, and that the de- 
 murrer should be sustained. 
 
 Case discharged." 
 
 = Accord: Martin v. Robson, 65 111. 129 (1872); McCarthy v. Best, 120 
 Mass. 89 (1876) ; Story v. Doivney, 62 Vt. 243 (1890). 
 
 In actions for personal injuries the right of the husband to sue for con- 
 sequential damages is. distinct from the right of the wife to sue for her in- 
 juries. Smith V. City of St. Joseph, 55 Mo. 456 (1874) ; Kelly v. New York, 
 'TTyj. & H. R. Co.,' 168 Mass. 308 (1897) ; Southern R. Co. v. Crozvdcr, 135 
 Ala. 417 (1902). In Pennsylvania under the act ^f May 8, 189 5, P. L. 54, 
 personal injuries to a wifTare redressecT in dne^'suTCbrought in the names of 
 the husband and wife. Doiicc/hue v. Consolidat e d Traction Co., 201 P a. 181 )^ 
 (1902). Where the right of action is in the wTTe, it has been held m^sdine sX— 
 cases that she should sue alone. Hennesy v. White, 84 Alass. 48 (1861) ; r 
 Norfolk & l]\ R. Co. v. Dougherty, 92 Va. 372 (1895) ; Long v. Pennsylvania \ 
 R. Co., 149 Fed. 598 (1907). In other cases the joinder of the husband is 
 held permissible. Brockett v. Fair Haven R. Co., y^ Conn. 428 (1900) ; Nor- 
 nnle v. Wheeling Traction Co., 57 W. Va. 132 (1905). 
 
 While there are cases to the contrary, and while there is a conflict of 
 opinions as to the basis for the rule, it is now generally held that for the] 
 alienation of the affections of her husband a married woman may sue alone./ 
 Bennett v. Bennett, 116 N. Y. 584 (1889) ; Gerrard v. Gerrard, 18 5 Pa. 222i 
 (1898) ; Nolin v. Pearson, 191 Mass. 283 (1906) ; kliason v. Draper, 2 t>oTce'^ 
 (Del.) I (1910). 
 
 In England a married woman may sue or be sued alone, the remedy 
 again.st her being confined to her separate property. Countess of Aylesford 
 V. Great Western R. Co., L. R. (1892) 2 Q. B. 626; Lamer v. Lamer, L. R. 
 (1905) 2 K. B. Div. 539. Nevertheless her husband remains liable for her 
 torts, and he and she may be sued jointly or she may be sued separately for
 
 124 PAUTIl.S 
 
 (c) Insane Persons. /\ 
 
 WIESMANN V. DONALD. 
 
 SuTKKME Court of Wisconsin, 1905. 
 125 Wis. 600.' 
 
 Appeal from a judgment of the Circuit Court for Racine county ; 
 E. B. Belden, Circuit Judge. Reversed. 
 
 Action_broughLiO-^'^'ch' I903» upon a money demand for pro- 
 fessional ^rvices_. rendered by plaintiff to defendant. Defendant 
 sened^^iswer, merely alleging that the plaintiff was adjudged to 
 be insane by the county court in November, 1991, and that said plain- 
 tiff, at the time of the commencement of the suit and of the answer, 
 I was insane and incompetent to institute or maintain the action, and 
 had no general guardian, nor any guardian ad litem appointed for 
 tlie action. Plaintiff' moved to strike out the answer as frivolous, 
 irrelevant, redundant and scandalous, and for judgment accord- 
 ing to the demand of the complaint, which motion was denied April 
 17, 1903, and exceptions duly reserved. Whereupon the action was 
 noticed for trial, and, despite the protest of the plaintiff against the 
 trial of his sanity, that question seems to have been tried on evi- 
 dence of some sort, including- a certified copy of the order of the 
 county judge adjudging said plaintiff insane and ordering that he be 
 committed to the Northern Hospital. No bill of exceptions was 
 served. Thereupon the court entered an order reciting that the 
 issue had been tried and a decision in writing filed, which does 
 not appear in the record, and ordering judgment dismissing the 
 plaintiff's complaint. Whereupon judgment to that effect v^-as en- 
 tered, from which the plaintiff appeals. 
 
 Dodge, J- : The absence of any bill of exceptions informing us 
 v^-hat evidence was presented to the trial court precludes us from 
 reviewing the question of plaintiff's sanity as a fact, and from con- 
 sidering the validity of the county judge's order, earnestly argued 
 by him. By reason of this omission the case must be considered as 
 if his insanity had been fully proved. 
 
 The drastic action of the trial court in dismissing plaintiff's com- 
 plaint itpon a fully admitted cause of action because of his mental 
 incompetency, thereby, for the time at least, relieving the defendant 
 from payment of money which he, by not denying, admitted he owed 
 to the plaintiff, seems to be in complete negation of the duty owed 
 by all courts to protect and care for the rights of the mentally in- 
 competent. We are given very little aid, either by the record or by 
 the respondent's brief, in ascertaining the reasons which led to such 
 action. The respondent informs us, without citation of authority, 
 that "the principle that an insane person can not appear as plaintiff 
 and prosecute a case in his own behalf is elementary." Perhaps he 
 
 her tort after marriage. Seroke v. Kattcnhurg, L. R. (1886) 17 Q. B. Div. 
 177; Earl V. Kinciscotc, L. R. (1900) 2 Ch. Div. 585; Cxienod v. Leslie, L. R. 
 (190Q) I K. B. 880. 
 
 ' Part of the opinion of the court is omitted.
 
 WIF.SMANN V. DONALD 1 25 
 
 told tlie circuit court the same thing, and that court beHeved him. 
 This proposition has, however, been directly negatived by this court 
 in Menz v. Beebe, 95 Wis. 383, 70 N. W. 468, where it was held that 
 no obstacle exists, either by common law or under our statute, to tlie 
 maintenance of an action by an incompetent person. Among the 
 supporting authorities cited in that case was Chicago & P. R. Co. v. 
 Munger, 78 111. 300, where it is pertinently said: 
 
 "This note was due and unpaid, and somebody was entitled to 
 sue upon it and enforce its collection. If appellee [the incompetent] 
 was not, who was ?" 
 
 Again, in Rankin v. Warner, 2 Lea (Tenn.) 302, it is said: 
 
 "The law mainly designs to protect the weak and dependent, and 
 if the courts, seeing a suitor has rights or property entitled to their 
 consideration and judgment, turn him out because no one will or 
 does assume the role of guardian or next friend for him, they will 
 certainly be guilty of a strange perversion of the object of their 
 creation." 
 
 The common law right of a lunatic to maintain a suit was de- 
 clared as long ago as Lord Coke's time, in Beverly's Cases, 2 Coke's 
 Rep. pt. 4, 568. And the distinction in this respect between an in- 
 competent and an infant has always been recognized (i Freem. 
 Judgm. sec. 152), and is fully preserved in our own statutes, which 
 provide (§ 2613, Stats. 1898) that an infant must appear by guar-] 
 dian, but omit any such requirement with reference to the insane 
 plaintiff. The rule in Mcnz v. Beehe is supported not only by the 
 authorities there cited, but also by Allen v. Ransom, 44 Mo. 263; 
 Rankin v. Warner, supra; Amos v. Taylor, 2 Brev. (S. C.) 20; 
 Stigers v. Brent, 50 Md. 214; Looby v. Redmond, 66 Conn. 444, 
 34 Atl. 102; Skinner v. Tibbitts, 13 Civ. Proc. R. (N. Y.) 370/ 
 
 ' It is said that at the early common law idiots, madmen and such as 
 were deaf and dumb naturally were disabled from suing because they wanted 
 reason and understanding. Bracton lib. 5 Chap. 20, fol. 420 b, but later 
 they were permiUed to sue and the suit was required to be brought in their 
 own names. Coke on Littleton 135 b. Hence, following the later common 
 law, it is generally held that the name of the lunatic should appear on the 
 record as the plaintiff and that, in the absence of a statute, an action at 
 law in the name of the committee or guardian alone is improper. Coke v. 
 Darston. Brown. & Gold. 107 (1618); Caneron's Committee v. Pottinger, 3 
 Bibb (Kv.) II (1813); Steel v. Young, 4 Watts (Pa.) 459 (i 83S) : Lane v. 
 Seherme'rhorn, I Hill (N. Y.) 97; Reed v. II ilson, 13 Mo. 2« '(iSso) ; Riggs 
 V. Zaislki, 44 Conn. 120 (1870) ; Rankin v. W'arner, 2 Lea (Tenn.) 302 (1879) ; 
 Dixon V. Cardozo, 106 Cal. 506 (1895). In ejectment compare Petrie v. Shoe- 
 maker, 24 Wend. (N. Y.) 85 (1840) with Warden v. liiehbaum, 14 Pa. 121 
 (1850). Contra Chavannes v. Priestley, 80 Iowa 316 (1890). If there is a 
 guardian or committee appointed the practice is to sue in the name of the 
 insane person "bv" the guardian or committee, Lang v. Whidden, 2 N. H. 
 435 (1822) ; Ub croth v. Union N Bank, 9 Phila. (Pa.) S3 (1872). In England 
 the Committee must now be added as a co^\a.muti.'~7Zord Idzvnsend's Set- 
 tlement L. R. (1908) I Ch. Div. 201. If no guardian is appointed and the 
 insane person sues alone this is no reason for dismissing the suit. Chicago 
 & P. R. Co. V. Hunger, 78 111. 300 (1875) ; Koenig v. Union Depot R. Co.. 
 194 Mo. 564 (1905); McKenna v. McArdle. 191 Mass. 96 (1906). Contra 
 Pelham v. Moore, 21 Tex. 755 (1858). See N. Y. Code Civ. Pro. § 2340 and 
 Dnpignac v. Quick, 27 Misc. (N. Y.) 500 (1899) ; Callahan v. Neiv York C H. 
 R. Co., 99 App. Div. (N. Y.) 56 (1905).
 
 126 TAKTU-S 
 
 Our statutes evince a policy to confer upon courts full power to 
 protect the interests of insane persons who are in court without the 
 protection of their guardians, by authorizin;^ that in any case when 
 a ]Kirty shall appear to be insane the court or judge may appoint a 
 guardian for the action, as the case may require, and by requiring 
 that, in case of a defendant, he shall be ])rotected by a guardian. 
 § -'(tis. Stats. 1898. The jn-oper course for courts to pursue when it 
 becomes apparent that a i)laintitf, by reason of his insanity, can not 
 safely ]irotect his rights in the litigation, is illustrated by IP'eisjiiann 
 V. Daniels, 114 Wis. 240, 90 N. V/. 162, where, u])on suggestion of 
 such a situation, this court, instead of dismissing the case and deny- 
 ing all hearing to the unfortunate, apiwinted a guardian ad litem 
 and directed the case to proceed. For the reasons above stated it 
 is obvious that the circuit court erred, to the grievous prejudice of 
 the plaintiff, in dismissing this action, and that the judgment to that 
 effect must be reversed.^ 
 
 JOHN VAN HORN z.'. HANN. Administrator of SARAH 
 
 SEARCH. ^ 
 
 Supreme Court of New Jersey, 1877. 
 
 39 iV. /. L. 207. 
 
 This is an action originally brought in the Common Pleas of 
 Warren, against the administrator of a lunatic. The claim was for 
 board, lodging, etc., of the lunatic from June 9th, 1873, to October 
 22d, 1873. There was offered in evidence, on the trial, proceedings 
 upon a commission of lunacy, the return to which was a finding, 
 dated October 14th, 1873, that said Sarah Search was a lunatic and 
 had been such for three and a half months i)revious to that date. It 
 aj)peared also that upon the loth of November following upon 
 transmission of the proceedings to the Orphan's Court of Warren 
 county, a guardian was appointed. Sarah .Search subsequently died, 
 
 ^ In Beverly's case, 4 Coke's Reports, 124 (1603) it is said "an idiot 
 in an action bronslit against him shall appear in proper person, and he 
 who pleads best for him, shall be admitted, as appears in s;i Hen. VI 18 b. 
 Otlierwise it is of him who becomes non compos mentis, for he shall appear 
 by guardian if he is within ajj;e, and by attorney if he is of full age." Amos 
 V. Taylor, 2 Brev. (S. Car.) 20 (1809) ; Buchanan v. Rout, 2 T. B. Mon. (Ky.) 
 114 (1825). Although there is some conflict of authority, in some instances 
 due to local statutes, the majority of decisions permit an action at law or in 
 equity to be conducted by the next friend of one who is actually insane but 
 not judicially declared so. Didisheim v. Londoit & \V. Bank, L. R. (1900) 
 2 Ch. Div. 15; Pennington v. Thompson, 5 Del. Ch. 328 (1880); Reese v. 
 Reese, 89 Ga. 345 (1892) ; King v. McLean Asylum, 12 C. C. A. U. S. 139 
 (1894) ; Isle V. Canby, \gc) 111. 39 (1902), S. C. 64 L. R. A. 513 and note; 
 Kroehl v. Taylor, 69 N. J. Eq. 525 (190;). Compare Rankert v. Rankert, iot 
 App. Div. (N. Y.) 27 (190.S).. 
 
 Where tliere has been a judicial finding of insanity and the appointment 
 of a guardian or committee, then suits should be brought by the guardian 
 or committee, either in the name of the lunatic Iw the committee or by the
 
 VAN HORN V. IIANN 127 
 
 under guardianship, and the defendant was appointed administrator. 
 After a year had elapsed, this action was brought. 
 
 On the trial, the court charged the jury "that the plaintiff was 
 entitled to recover from the 9th day of June until the 29th of the 
 same month." The three and a half months reached back to the 
 last date. That after the time when she was declared a lunatic, her 
 administrator was not liable for any debt for her support. That the 
 plaintiff must look to the guardian for her support from June 29th 
 until her decease. A verdict was found in accordance with such 
 charge. An exception was sealed to this charge. 
 
 Reed, J. : There is no contention in this case that no right at 
 all to recover, accrued to the party who furnished the food and lodg- 
 ing to the lunatic. The claim seems to be for necessaries fairly 
 furnished, and affords an exception to the general rule as to the 
 inability of a lunatic to bind himself by contract. Baxter v. Earl of 
 Portsmoufh, 5 Barn. & Cress. 170; Ewell's Lead. Cas. 635, note; 
 Am. Lazv. Reg., Vol. II (N. S.) 22, notes. The ruling of the court 
 touches the manner in which this claim may be secured. The idea 
 of the court below was, that for any claim against the lunatic, aris- 
 ing after the beginning of the period of derangement found by the 
 inquisition, recovery must be sought only through the guardian ; 
 but for a claim accruing previously, an action would lie against the 
 lunatic himself. 
 
 It is difficult to understand upon v/hat principles this claim can 
 be severed at that point of time, and a different method of redress 
 suggested for each portion. Each part is a debt of equal obligation 
 upon the lunatic and his estate. No provision is made by law for 
 the payment of one class of debts and not of another. This claim is 
 all admittedly a debt of the lunatic, and a single method of redress 
 should obviously be afforded to the creditor. The question is, was 
 this action at law against the administrator of the lunatic, the cor- 
 rect method? Has the creditor a right of action at law for this 
 claim ? 
 
 That the lunatic was suable at law for his debts, was a well- 
 established rule of the common law. Broom on Parties 182; Dicey 
 on Parties 2. Nor did the fact that a writ de lunatico had gone, 
 and a fincling had been returned upon it that the defendant was 
 insane, change the rule. Anonymous, 13 Ves. 590. It appears from 
 the statement in Baxter v. Earl of Porfsiiwutli, that there had been 
 
 committee alone, according to the local statutes or practice. Compare Ortley 
 V. Mcssere, 7 Johns. Ch. (N. Y.) 139 (1823) with Lombard v. Morse, 155 
 Mass. 136 (1836) ; Looby v. Redmond, 66 Conn. 444 (1895) ; E^utable^Trust^ 
 Co. V. Garis, 190 Pa. ^4. CiSoo'). But unless the interests of the committee 
 are adverse to those of the hmatic, a next friend is not permitted to sue for 
 the lunatic. Dorsaeimcr v. Roorback, 18 N. J. Eq. 438 (1867) ; Palmer V. 
 Sinnickson, S9 N.J.Eq.530 (1900) ; Bird v. Bird, 21 Gratt. (Va.) 712 (1872) ; 
 Row V. Row, 53 Ohio .St. 249 (1895) ; Tiffany v. Worthington, 96 Iowa 560 
 (1896). So also a suit by a next friend has been allowed where the lunatic 
 was a nonresident. Thierry v. Chalmers, L. R. (1900) Ch. Div. 80, 81 L. T. 
 (N. S.) 511; Pelham v. Moore, 21 Tex. 755 (1858); Plympton V. Hall, 55 
 Alinn. 22 (1893). But as to nonresident insane defendants, compare Sturgis 
 V. Longworth, i Ohio St. 544 (1853) with Michigan Trust Co. v. Ferry, 175 
 Fed. 221 (1910).
 
 128 PART IKS 
 
 such a hndins; in that case. Nor did the fact tliat a committee had 
 been api^ointcd by the chancellor, oi)erate to prevent the bringing or 
 arrest the ]>rogress of such an action. When actions were com- 
 menced against a lunatic, so found by inquisition, the lord chan- 
 cellor, on petition of the committee of the lunatic, showing that 
 there were grounds for defending, would refer it to a master to 
 inquire whether it would be proper to make any and what kind of 
 defense. Shelford on Lunacy 408. 
 
 It was not only well settled that an action lay against a lunatic, 
 whether he was or was not under guardianship, but it was the only 
 method open for the recovery of a contested claim against him by 
 suit. Xo action at law or suit in ec|uity could be maintained against 
 the committee. The committee was the mere curator of the prop- 
 erty of the lunatic. He could make no contracts which bound the 
 latter in any manner. The committee was appointed by the chan- 
 cellor. He made the appointment not ex virtute ofificio, but by dele- 
 gation of power from the crown. The king, by the statute de prae- 
 rogativa regis, (17 Ed. 11., st. 2, ch. 610,) was bound to provide 
 for the safe keeping of the projierty and the maintenance of the 
 lunatic. He was compelled to do this by agents, and he delegated the 
 appointment of these agents to the holder of the great seal. These 
 agents were termed committees, and were merely the receivers or 
 bailiffs of the crown. As such, they were controllable by and account- 
 able to the chancellor as keeper of the king's conscience. They had 
 no title in the property of the lunatic. They could not contract for 
 the lunatic. They could not sue or be sued as the rej)resentative of 
 tJie lunatic.'' 
 
 Xor could a suit in equity be sustained for such a claim. It is 
 true that where there was a debt. against the lunatic admittedly ow- 
 ing, Llie chancellor would entertain a petition to establish it, and pro- 
 vide for its payment out of the proceeds of the lunatic's estate not 
 needed for his maintenance. Even to accomplish this, the chancellor 
 had no right to sell any real estate of tlie lunatic until that authority 
 was given himin 1803, by the statute of 43 Geo. HI. The collection 
 of debts or the establishment of such as were the subject of contro- 
 versy, was not within the scope of equity jurisdiction. 
 
 We therefore will see that the court of chancery, either before or 
 after the statute of Geo. HI, would not retain a petition to establish 
 any alleged debt against the lunatic which was controverted, or con- 
 cerning which there was a doubt, but would send the matter to a 
 common-law tribunal. Ex parte McDougal, 12 Ves. 384. 
 
 A\^hile the chancellor- would not order a debt, although undis- 
 puted, to be paid without reserving sufficient to maintain the lunatic, 
 and would not take cognizance of a contested matter of debt at all, 
 yet the right of action against the debtor himself in a court of law, 
 was constantly admitted. In instances where the court refused to 
 apply ]»roperty to the lunatic's debts, on account of the insufficiency 
 of the remainder for his support, the court admitted that all the 
 lunatic's proi)erty could be reached by the process of the common- 
 
 * Crane v. Anderson, 3 Dana (Kv.) 119 (1835); Lane v. Schermerhorn, I 
 Hill (X. Y.) 97 (1841).
 
 VAN HORN V. HANN 1 29 
 
 law courts, and that equity would not restrain. Ex parte Dikes, 8 
 Ves. 79; Ex parte Hastings, 14 Ves. 182/ 
 
 And the right to sue the lunatic himself, at law, is, in all the 
 cases at common law, alluded to as a settled practice, and as not 
 presenting a matter for discussion. Ihhotson v. Lord Galway, 6 
 T. R. 133; Steel V. Alan, 2 Bos. & Pul. 362; Cock v. Bell, 13 East 
 
 ^ ^ - 
 
 This was, then, the method of procedure at common law. Nor 
 is there any marked departure from that method discoverable in 
 this country. The schemes for the care of the person and property 
 of the lunatic vary somewhat in the different states, but very gener- 
 ally the character of the committee or guardian here is assimilated 
 to that of the committee under the English system. In New York, 
 there is a departure by force of the construction given to their 
 statute. Chancellor Kent decided that in that state, the estate in 
 the hands of the committee was, by their statute, placed in the pos- 
 session of the court, not only for the maintenance of the lunatic, 
 but for the payment of creditors. Brashsear v. Cortland, 2 Johns Ch. 
 401. So courts of equity will there restrain actions at law. Matter 
 of Hiller, 3 Paige 199; Soverhill v. Dickson, 5 How. Prac. Rep. 
 109. The courts of law there, however, take no notice of this, but 
 leave the equity side to deal with the party. In an action at law, the 
 status of the defendant, as a lunatic, can not be urged against the 
 proceeding. Robertson v. Lain, 19 Wend. 650.* 
 
 'At law actions could be maintained against insane persons and they 
 could be arrested and imprisoned upon civil process. Kcrnot v. Norman, 2 
 T. R. 390 (1788) ; Nuit v. Vcrncy, 4 T. R. 121 (1790) ; Ex parte Leighton, 14 
 Mass. 207 (1817) ; unless otherwise provided by statute. Bush v. Pettthone, 
 4 N. Y. 300 (1850) ; J^nna. Act of Jime 16. 18.^6. P. .L .„6io § 44- While, 
 however, Chancery has no jurisdiction tolnterfere with the rights o£ cred- 
 itors to seize and sell by legal process property of the lunatic which at the 
 time of seizure is not in the custody of the court. Ex parte Dikes, 8 Vesey 
 |r. 79 (1803); Salter v. Salter, 6 Bush. (Kv.) 624 (1869); In re Farnham. 
 L. R. (1896) I Ch. Div. 836; In re Clarke. L. R. (1898) i Ch. Div. 336, a 
 court of equity Avill not allow property of a lunatic in its custody to be 
 applied in paying creditors without first providing for his maintenance. Ex 
 parte Hastings, 14 Vesey Jr. 182 (1807). Such property is regarded as in 
 aistodia legis and no creditor can reach it by execution. There must be an or- 
 der of court for payment which will not be made until a sum sufficient for 
 the maintenance of the lunatic is first provided. Eckstein's Estate, 1 Par- 
 son's Eg. Pa ^0 (1842) ; Guthrie's Appeal, 16 Pa. 321 ri SSiTT Adams v. 
 TTiojno.CSrN. Car. 296 (1879). Pending an ir 
 
 Inquisition Chancery has ap- 
 pointed an interim receiver of the estate of an alleged lunatic against whom 
 executions were pending. In re Fountain, L. R. (1888); 37 Ch. Div. 609; 
 InreKrn tnn. K B'mn. CPa.') 6l^ ClSl^). 
 
 "ITtefnhergh v. Schoolcraft, 2 Barb. (N. Y.) 153 (1848); Ingersoll v. 
 Harrison, 48 Alicli. 234 (1S82). In New York since the adoption of the code 
 the courts have enforced their prior equity rule and the committee of 
 an incompetent person is regarded as an officer of the court against whom, 
 as well as his ward, no action will be permitted without leave of court. Smith 
 V. Keteltas, 27 App. Div. ("N. Y.) 279 (1898). But leave to sue is not neces- 
 sary unless the incompetent person has been judicially declared insane and a 
 committee appointed. Grant v. Humbert, 114 App. Div. (N. Y.) 462 (1906). 
 As to service of process, see American Mortcjacje Co. v. Dcivev, 94 N. Y. S. 
 808 (1905). 
 
 9 — Civ. Pkoc.
 
 !>) FAKTXES 
 
 ^-^^"^ty, in tiiis "^ ci.aracter of ^e cammitiee or 
 
 iiS- a ruere c-.: : title in the propertv of the hina- 
 
 - ^ "~ ~ '" ""' ""^ : ■--"-- of the 
 
 - - "^-.^^ 
 
 ■ - - " ' i. » 
 
 ; - ■ - .6 
 
 :^o. 12 
 
 . - - - - :.. V. Pat- 
 
 tTx:i~r. ; iiirit^ . Kv. * ii.' Xor does it matter whether the person 
 '-' ' ""-". as cur:;" ~ " "-- ----- - - - '^^"^ of the itmatic is 
 
 uirirree .21 Ind. ju>. 
 
 - in our 
 
 e- Tne 
 
 -z^'^c iS iicrc, itS in Eng- 
 
 e remm to that writ, it 
 
 r:iardiarL That dntr. by 
 
 -'- - --' - :- __- - — - r:, as in Eng-Iand for a 
 
 rmie ir "was tip«oa. the court 01 wards, and now. in mC'Si of the states, 
 r'" '-^r Z'TOliSZs courts. Supsni^om. of the gnardian's accounts 
 1: - -he ocT'hans' axm, with an apr-eal to the ordinarv. The 
 
 ' ^ " - - " - 1 lars'is where the interest of the Iti- 
 ^- - § 7- By the foirrth secti<3n of this 
 
 aci. '_ - ' : z-^y ^^ real estate uy pay debts, 
 
 T_ -i^njc, and no greater '■-— er upon the orphans' 
 
 or^trrt man trie statirte 43 «jeo. ITI ■_ -.rery. There is do 
 
 7«jTir-er to Ojszipel eEther to investigate ^i-_ . -::.e a qtsestiaDed claim 
 aramst the I-matic. Xeither shccdd as.stmie the settl-ement of such a 
 ---- v\~here the ~--^ — ■' — — ; to present a debt against 
 rre are no : -: harts" corniT: can decree an 
 
 i^- :^^t. V»l:ere the gu^r "..'.- : . , ^ -jiere is no 
 
 '•-—^ -~ ~Jr^ cr-^rt? t-- c^T^'nr:^' h£r-_ n, in every 
 
 "- " - _- :r is equally 
 
 :' 1 : : T nh" remedy 
 
 Lseif. It was in recog- 
 
 — :. .- _- _.--_; that the ..: :n was reached in Cooml'j v. 
 
 I cozier et d.^ z Vroocn 2x1, that the guardian of an habitual dnmk- 
 1"' - -'-■ '- -_ ----- ~-- -■- =- - ;e said: "'The statute places 
 
 "- to his euardian. verv much 
 
 ' - " - :s.tu5 of the lat- 
 
 - and the suits 
 
 r ise. the incon- 
 
 ' "-g as an action 
 
 '-jn. IS f ordbiy presented, and attention is called to 
 : f the act ccncerrrrrLg lunatics, which recognizes 
 
 ' - ' . - . -^ 2^ Qf Jr^ie I3u 1B36, the i.ia.tLiS of 2 l-rrztic 
 
 iat; the 
 
 --•-r._-- - _ _', -. r?g. See 
 ; Act of 1890 ''=3 and 54 \ic-
 
 VAN HORN V. JIANN I3I 
 
 the liability of the lunatic himself, by providing for his exemption 
 from imprisonment for want of bail. The conclusion, then, is 
 reached, that for any legally contracted debt, incurred before or 
 after his derangement, the lunatic is liable to an action at law. 
 
 A question arises, incidentally, as to the manner in which such 
 a defendant should be brought into court, and how he should defend. 
 A word as to the practice may be of use, as it seems untouched by 
 any previous intimation of our courts. The common-law rule is, 
 that a lunatic defends in the same manner as ordinary persons. 
 Process is served upon him personally; then, if an infant, he appears 
 by guardian, and if of full age, by attorney. This rule seems as old 
 as Bez-erly's case, 4 Coke 124, b. See Tidd's Prac, Vol. I, p. 93, 
 note b; i Arch Prac. 25; 2 Saund. 333, n. 4, and cases cited in 
 Coombs v. Janvier, ante. This was the rule in actions at Iz-w?^ 
 
 In suits in equit}-, the practice is different. In those, the lunatic 
 defends by guardian ad litem, and his committee is appointed such 
 guardian as of course, (IVestcomb v. Westcomh, i Dick. 233,) un- 
 less there is no committee, or the committee is, in interest, adverse 
 to him in the suit. Shelf ord *425; Morgan's case, 2 Bland. 184. 
 There a third party- is appointed.^^ 
 
 A failure to notice this diversity- of procedure, or the blending of 
 the two in the same courts, has caused, in one or two states, an allu- 
 sion to a practice of defending by guardian ad litem in all cases — 
 notes to Leach v. Marsh, Am. L. R., vol. II, (N. S.j 31 — and in one 
 
 ^"Justice V. Ott, 87 Cal. 530 (1891) ; Oldrich v. Williams, 12 \ t. 413 
 (1841) ; King v. Robinson, 33 Maine 114 (1851); Johnson v. Pomeroy, 31 
 Ohio St. 247 (1877) ; Stiggers v. Brent, 50 Md. 214 (1878) ; At'u'ood v. Lester, 
 20 R. I. 660 (1898). 
 
 In the absence of a statute authorizing ser%-ice of process on the com- 
 mittee or cruardian ser\-ice must be made on the lunatic. Potts v. Mines, 
 =7 Miss. 735 (1S80); Scott V. U'inningham, 79 Ga. 492 (1887); Redmond 
 V. Peterson, 102 Cal. 595 (1894); State v. District Court, 38 Mont. 166 
 (1908) ; Cecil v. Cecil, 149 Kv. 605 (1912). Compare Shoemaker v. Smith, 
 80 Iowa 6^5 (1890); Jones v. Crourll, 143 Ind. 218 (1895); Burger v. 
 Bordman, 234 Mo. 238 (1913) J ^'- Y. Code Civ. Proc., §§ 426, 4^9- In Pennsyl- 
 vania the Act o£ June 13, 1836, P. L. 601, § 45, provides for service of writs 
 on the committee of the estate of the lunatic. Before the writ issues there 
 should be a suggestion on record of the inquisition of lunacv* and the name 
 of the com.mittee. Hillings v. Laird ^21 Pa. 263 (1853). By the Act of Tune 
 10, 1901, P. L. 554, ~§ I, service is m-ade on the next of kin where no commit- 
 tee has been appointed. If no committee be appointed then it is the dut\- 
 of the plaintiff to apply for the appointment of a committee ad litem. In 
 Massachusetts it is said' that the guardian of a lunatic should have notice of 
 proceedings and if he does not appear and defend in the name of his w-ard 
 a guardian ad litem should be appointed. Taylor v. Lovering, 171 Mass. 302 
 (1898); Mitchell V. Kingman, 22 Mass. 431 (1827); King v. Sto-ji-ell, 211 
 Mass. 246 (1912). 
 
 " In equitv the guardian or committee must be made a defendant Daniel's 
 Chancerv Practice *I7^, Wilson v. Grace, 14 Vesey Jr. 172 (1807) ; Harrison 
 V. Rouan, 4 Wash. C. C. 202 (1819) ; Andrc'Ji's v. O'Reilly, 22 R. I. 362 
 (1901). Where there is no committee a guardian ad litem should be ap- 
 pointed. Nelson v. Buncombe, 9 Bevans 211 (1&46); Denny v. Denny. 90 
 Mass. 311 (1864). To proceed without the appointment of such a guardian 
 is reversible error. Eakin v. Haiikins, 52 W. Va. 124 (1902). So where the 
 interests of the guardian are adverse to those of the ward. Marx v. Row- 
 lands, 59 Wis. no (1883). X. Y. Code Civ. Proc. § 428.
 
 132 PARTI i:s 
 
 state he so tlcfcncls by statutory direction. Symnics v. Major, 21 
 Incl. 443. The coninion-lau method, however, was unitorni and un- 
 i|uestioned, and has never been departed from in this country, wher- 
 ever the courts have had occasion to consider it directly. Faulkner v. 
 McClnre, 18 Johns. 134; Ihichanan \. Rout, 2 T. B. Monroe 114; 
 .Imos V. Taylor, 2 Brev. S. C 20; Barbour on I'arties.^- 
 
 W'ho can ai^pear as his attorney? It is manifest that the hmatic 
 himself has no capacity to a])point. His want of natural ability, as 
 well as the implied prohibition in section 15 of the practice act, for- 
 bids it. It naturally follows that the jjerson who appears as the at- 
 torney should be selected or approved by the court. This was the 
 rule adopted by the Supreme Court of New York, in the case of 
 Faulkner v. McClure, 18 Johns. 134. In that case, the court granted 
 a rule appointing the attorneys of the defendant. I think this is the 
 correct practice, and I think that wdicre the defendant is under 
 guardianship, the rule should never be granted until notice to such 
 guardian has been given of the application for the rule, and an op- 
 portunity for hearing him afforded.^'* 
 
 In this case, this question does not directly arise. The decease 
 of the lunatic, before the institution of the present action, rendered 
 the course of procedure plain. Upon her death, any exceptional treat- 
 ment which she or her estate was entitled to or subject to as a luna- 
 tic, ceased. The duty of the guardian, beyond accounting and pay- 
 ing over the balance to her personal rei:»resentatives, ceased, i Collin- 
 son 310; In re Colvin, 3 Md. Ch. 278. By statute 32 Hen. VIII, all 
 personal property of the lunatic was then payable to his executor or 
 administrator, i Collinson 320, section 11.^* The personal represent- 
 ative of the lunatic was suable, as the deceased herself was, subject 
 to the statutory regulations. She, herself, was liable. The action 
 was for a debt legally incurred. 
 
 The instruction to the jury, that a part could not be recovered in 
 this action, was erroneous, and the judgment nuist be reversed:^"' 
 
 '■ "It shall not be necessary to make an idiot or lunatic a joint party with 
 his guardian or committee except as may be required by statute." Bums' 
 Ann. Stat. Ind. (1914). See also California Code Civ. Pro. § 372; Code of 
 Iowa (1897) § 3485. In England a lunatic appears and defends by his com- 
 mittee who must obtain the sanction of the court before suing or defending. 
 Annual Practice (1914) 249, Order XVI, rule 17. 
 
 "Ex parte A'otliinglou, 37 Ala. 4<)6 (1861); Ciiiviiiujhaiii v. Davis, 175 
 Mass. 213 (1900) ; Stoner v. Rigc/s, 128 Mich. 129 (1901). Contra: fix parte 
 Roiindtrcc, 51 S. Car. 405 (1897). See also Gill v. GUI, L. R. (iQOc^) Prob. Div. 
 
 1-^7- , 
 
 "Ex parte McDougal, 12 Vesey Jr. 384 (1806); I'axton v. Stuart, 80 
 Va. 873 (1885) ; Reanclo v. Misplay, 90 Mo. 251 (1886) ; Findley v. Cowles, 93 
 Iowa 389 (1895); SU>hert_y^Ji mith, 184 Pa. 3 4 (1898); In re Hunt, L. R. 
 (1906) 2 Ch. Div. 295. ^ — 
 
 " For the statutory- law referred to by the court, and amendatorj^ acts, 
 see 2 Comp. Stat. N. J. 2780.
 
 TAYLOR V. CARPENTER 133 
 
 (d) Aliens. ' 
 
 TAYLOR V. CARPENTER. 
 
 United States Circuit Court, First Circuit, 1846. 
 2 IVoodh. and M. (U. S.) i. 
 
 This was an action on the case, brought by the plaintiffs, citizens 
 of Great Britain, agamstnTe defendant, a citizen of Massachusetts, 
 for imitating and using from January, 1842, to January, 1845, in 
 this State, the trade-marks of the plaintiffs, on thread of the defend- 
 ant, and selling great cjuantities thereof, as and for the plaintiffs' 
 thread, to his damage in the sum of $20,000. The defendant pleaded 
 the general issue, and at the trial here at an adjournment of the 
 October Term, 1845, a verdict was found for the plaintiffs for $800. 
 The defendant moved the court to set aside this verdict, and to 
 grant a new trial for the reasons assigned in a motion, embracing 
 various alleged misdirections and omissions by Judge Sprague, be- 
 fore wliom the case was tried.^*' 
 
 Woodbury, J.: The eighth objection is, that the court refused 
 to instruct the jury that the plaintiffs could not recover, because 
 citizens and residents of Great Britain, are foreigners. This seems 
 to be the point most labored and most relied on. 
 
 The first inquiry under this head is, Vv-hether the subject-matter 
 here is one over which this court has jurisdiction, and can be prose- 
 cuted here at all by an alien friend. 
 
 Being an action for a tort or wrong to a foreigner, gives to this ' 
 court general jurisdiction. 
 
 But being an action for a particular kind of wrong, an injurious 
 deceit to the damage of tlie plaintiff's, practiced here, though they 
 live abroad, is said to give them no cause of action. 
 
 The exceptions to this position, as to the rights of foreigners, I 
 take to be twofold, if no more. One is, that it is not reciprocal, no 
 such right being granted to exist, and which may be prosecuted by 
 our citizens in Great Britain where this plaintiff resides. But this 
 might be a good reason for legislation by Congress, not allowing 
 aliens to have any rights, or to prosecute them in this court, unless 
 they are reciprocal and allowed to our people in their respective 
 countries. But no such discrimination has ever been made by Con- 
 gress, and no court could make it by mere construction, without an, 
 exercise of judicial legislation. The cannibal of the Fejees may sue 
 here in a personal action, though having no courts at home for us to 
 resort to. 
 
 It is contended, that no property exists here in mere words or 
 marks, and that they are unlike the good will in a trade or store for 
 business. And it is further urged, that if a foreigner can obtain no 
 redress in such a case, and a citizen might, he should not complain, 
 
 *° Portions of the opinion of the court are omitted. See generally, Borch- 
 ird's Diplomatic Protection of Citizens Abroad.
 
 134 rAKTii.s 
 
 ami may rciiKun at home, as in many thing^s he is not allowed here 
 all ihe rights and privileges of a eitizen, and ought not to be. 
 
 He can not by the Constitution be President. He can not in 
 many states vote. lie can not hold land in many or take by descent 
 though in others he can. lie can not take out patents and copy- 
 rights in all cases, and under like rules with a citizen. He can not 
 own vessels here. He can not engage in the coasting trade here. 
 He can not in the conllict of laws enforce some rights, in cases of 
 discharges in insolvency, which citizens may. Story, Confl. of 
 Lavrs, ^T,, 415; Tozme v. Smith, i Woodb. & Minot, 115.^^ 
 
 r>ut an alien is not now regarded as "the outside barbarian," he 
 is considered in China, and the struggle in all commercial coun- 
 tries for some centuries, has been to enlarge his privileges and 
 powers as to all matters of property and trade. It was one of the 
 grievances in INIagna Charta, as well as the Declaration of Independ- 
 ence, that the naturalization of foreigners had been too much ob- 
 structed. 
 
 So too heavy taxation of alien merchants was guarded against 
 in Magna Charta, allowing them "to go, and come, and buy, and 
 sell, without any evil tolts." i .Statutes at Large, art. 30; Thompson 
 on Charters, p. 55. 
 
 It is hence, undoubted!}', that Montesquieu observed, "that the 
 English have made the protection of foreign merchants an article 
 of their national liberty ;" and Thompson on Charters, p. 232, says, 
 that once they enjoyed it even in war, "in common with the clergy 
 and husbandmen, in order that those who prayed, ploughed, and 
 trafficked, might be at peace." 
 
 For many years it has been held, that picas of alienage are to be 
 discouraged ; and are a defense not favored in the law. 8 D. & E. 
 71, 166; 2 Bl. R. 1326; 13 East, 332; 10 East, 326; i Bos. & Pul. 
 163, 170; 9 East, 321 ; Stephen, PI. 67; Soc. for Prop. Gosp. v. 
 IV heeler et ai, 2 Gall. 127. 
 
 Even as long ago as the time of Lord Ch. J. Hale, he "saith, that 
 the law of England rather contracts than extends the disability of 
 aliens, because the shutting out of aliens tends to the loss of people, 
 who, when laboriously employed are the true riches of any coun- 
 try." Bac. Ab. "Aliens" C. note; Went. 427; 2 Rol. R. 94. 
 
 An alien may bring an action for slander of his character. 
 Bac. Ab.. "Aliens" D. ; Yelv. 198.'^ And by 31 Hen. VI, ch. 4, 
 he may sue for any injury on sea or in the realm. I'ersonal actions 
 
 '' See jrenerally II Kent's Commentaries *S3- As to land. Doe v. Robert- 
 son, II Wlieat. (U. S.) 332 (1826) ; McKinlcy Co. v. Ala.<;ka Co., 183 U. S. 
 363 (1902) ; Haley v. Sheridan, 190 N. Y. 331 (1907); Doe v. Roe, 55 Atl. 
 341 (Del. 1903). "Compare Jcle v. Lemberger, 163 111. 338 (1896) ; Connolly 
 V. Reed, 22 Idaho 29 (1912); Donaldson v. State, 182 Ind. 615 (1913). 
 As to insolvency, Lctchford v. Convillon, 20 Fed. 608 (1884) ; Judd v. Law- 
 rence, I Cush. (Mass.) 531 (1848). Bankruptcy, Cutter v. Foleom, 17 N. H. 
 140 (1845) ; In re Boynton, 10 Fed. 277 (1882) ; in re Clisdell, 2 Am. Bank. R. 
 424 (1899) ; Ex parte Blain, L. R. (1879) 12 Ch. Div. 522. 
 
 '■"Accord: Fisani v. Lawson, 6 Bingham's New Cases 90 (1839); Sid- 
 greaves V. Myatt, 22 Ala. 617 (1853); Crashley v. Press Publishing Co., 179 
 X. Y. 27 (1904).
 
 TAYLOR Zi. CARPENTER 135 
 
 being transitory, are not limited to any particular country. Story 
 Confl. of Laws^ p. 450; 3 Bl. C. 249.^^ And "the laws of a sovereign 
 rightfully extend over persons, who are domiciled within his terri- 
 tory, and even property which is there situate." lb. section 539. 
 
 Our duties are such to redres? wrongs to foreigners, that they 
 are by the Constitution allowed to sue in the United States' Courts, 
 so as to secure greater exemption from local partialities or preju- 
 dices against them; and a refusal of justice to them in judicial 
 tribunals is one just cause of war. 4 Elliott, Deb. 167. The nth 
 section of the Judiciary Act confers the same power on this court 
 to sustain suits where an alien is a party, as where a citizen is. 2° 
 Aliens may sue here as extensively as in the state courts. 19 Pick. 
 214. 
 
 In Barry's case, so notorious for eight or ten years past m both 
 the courts of New York and of the Union, he, though an alien, has 
 been allowed as to regaining the custody of his child from his wife 
 and her connections, the same remedies and principles as are granted 
 to citizens. Barry's Case, 2 How. 65; Mercein v. The People, 25 
 Wend. 64 ; Barry's Case, 5 How. 103. 
 
 An alien gets the right of protection, from his obedience, in- 
 dustry, and care while here, and the usefulness of his capital and 
 skill employed here, when he resides abroad. In Story's Confl. of 
 Laws, section 565, he says : "It may be laid down, as a general rule, 
 that all foreigners, siii juris, and not otlierwise specially disabled by | 
 the law of the place where the suit is brought, may there maintain 
 suits tot vindicate tlieir rights and redress their v.Tongs." 2 Blighj 
 -,i ; I Dovv^ & Clark 169; i Clark & Fin. 333 ; 2 Sim. 94; 8 Barn. & 
 Cress. 427; 9 Ves. 347; 4 John Ch. 370; and 13 Peters, 519; ex- 
 tends comity of suits to corporations out of a state. 
 
 A person from abroad suing in this country is to enjoy no 
 greater nor less rights than citizens. "He is to have the same rights 
 which all the subjects of this kingdom are entitled to." Ld. Tenter- 
 den in De la Vega v. Vimna, i Barn. & Adol. 284; 2 Cow. 626; 
 I Peters, C. C. 317; i Wash. C. C. 376; 2 John. 345; 10 Wheat, i ; 
 Henry on For. Laws, 81-86.-^ 
 
 "One alien may sue another alien if the subject-matter of the action is 
 within the jurisdiction of the court. Barrcll v. Benjamin, 15 Mass. 354 (1819) ; 
 Peabody v. Hamilton, 106 Mass. 217 (1870) ; The Jentsalcm, 2 Gall. U. S. C 
 C. 191 (1814). Contra: Dumonssay v. Delvit, 3 H. & H. Md. 151 (i793), and 
 compare Dcwitt v. Buchanan, 54 Barb. (N. Y.) 31 (1868). 
 
 ='See U. S. Judicial Code, Act of Mar. 3, 191 1, ch. 231, § 24, 36 Statutes 
 at Large U. S. 1187. The federal courts are without jurisdiction 
 where both parties are aliens and no federal question is involved. Montalct v. 
 Murray, 4 Cranch (U. S.) 19 (1807): Rjdiixititis-^^SliLat t, lA y ^"^^- (Pa^) 
 412 (1879) ; Laird v. Indemnity Co., 44 Fed. 712 (1890) ; altHough one is a 
 consul of a foreign nation, Pooley v. Luco, 72 Fed. 561 (1896), but see Judi- 
 cial Code § 233. 
 
 ''Accord: Ramkissenscat v. Barker, i Atk. 51 (i737), contract; Pugh v. 
 Gillam, I Cal. 485 (1851), seamen's wages; Palmer v. DelVitt, 47 N. Y. 532 
 (1872) insurance; Johnston v. Trade Ins. Co., 132 Mass. 432 (1882) insur- 
 ance; United States v. O'Kecfe, 78 U. S. 178 (1870) ; Squilache v. Tidewater 
 C. Co., 64 W. Va. 337 (1908) personal injuries. At common law an alien 
 could not maintain a real or mixed action altliough he could defend his title 
 against all persons but the state. Wangh v. Riley, 49 Mass. 290 (1844);
 
 13" TARTll-.S 
 
 Iniroign contracts, as well as laws, arc respected and enforced 
 only from comity, not propria vigorc, but almost invariably enforced. 
 Story Conll. of Laws, section 244. Much more should we allow to 
 persons pnitection and redress by comity, than to contracts and laws, 
 made abroad, as we do daily, in every appropriate case.-- 
 
 The whole system of modern facilities for intercourse through 
 consuls and ambassadors, through less rigid exclusions, through im- 
 ])roved roads and steamships, through free trade and lower duties, 
 and the greater brotherhood caused by the art of printing, the mar- 
 iner's compass, and Christianity, all tend to connect nations closer, 
 and equalize their rights and privileges in business. The progress of 
 civilization and commerce, and the whole character of ovir institu- 
 tions and laws, are more and more friendly to foreigners, regard- 
 ing them more as brethren, of one blood and origin, and hope, 
 rather than barbarians and enemies. 
 
 So as to permitting them to trade here, to sell and buy, to re- 
 cover for conversions, or injuries, or sales of their property, to sue 
 for frauds and deceits in relation to it as well as contracts, this has 
 been the law ever since the Constitution empowered congress to 
 have courts to try suits, w'here an alien was a party, and ever since 
 congress confirmed that power in 1789 in the circuit court. We, as 
 well as the state courts, have yearly sustained alien friends in vindi- 
 cating their personal rights, as fully as we do citizens, in all analo- 
 gous cases. -^ 
 
 Comity and courtesy are due to all friendly strangers, rather than 
 imposition or pillage. Taking their marks and using them, as and 
 
 Sicmsscn v. Bofcr, 6 Cal. 250 (1S56); White v. Sabaricgo, 23 Tex. 243 
 (1859) ; Jcle V. Lcmhcrger, 163 111. 338 (1896). The right to hold land, how- 
 ever, ordinarily carries with it the right to maintain actions therefor. Den v. 
 Brown, 7 N. J. L. 305 (1879) ; Bradstreet v. Oneida Supervisors, 13 Wend. 
 (N. Y.) 546 (1835) ; Scharpf v. Schmidt, 172 111. 255 (1898). 
 
 "' Comity will not allow a nonresident alien creditor to obtain b}- gar- 
 nishment an advantage over a resident creditor, although the lien of the 
 home creditor is junior to that of the alien. Diicouto Gesselsehaft v. Umbreit, 
 127 Wis. 651 (1906). 
 
 ^ There is a conflict of authority as to whether a nonresident alien can 
 maintain an action for wrongful death under the statutes conferring that 
 right upon the relatives of a decedent. Among the cases upholding the 
 right of action are Davidson v. Hill, L. R. (1901) 2 K. B. Div. 606; Philpott 
 v. Missouri P. R. Co., 85 Mo. 164 (1884) ; Chesapeake & O. R. Co. v. Hig- 
 gins, 85 Tenn. 620 (1887) ; Mithall v. Fallon, 176 Alass. 266 (1900) ; Szymanski 
 v. Blumcnthal, 3 Penn. (Del.) 558 (1902) ; Kellyville Coal Co. v. Petraytis, 
 195 111. 215 (1902); Renhind v. Commodore M. Co., 89 Minn. 41 (1903); 
 Romano v. Capital City B. Co., 125 Iowa 591 (1904) ; Pittsburg, etc., R. Co. 
 v. Xaylor, 73 Ohio St. 115 (1905) ; Hirchkovitz v. Pennsylvania R. Co., 138 
 Fed. 438 (1905, N. J. Stat.); Lotv Moor T. Co. v. La Bianca, 106 Va. 83 
 (1906) ; Alfson v. Bush Co., 182 N. Y. 393 (1905) ; Atchison, etc., R. Co. v. 
 Fajardo, 74 Kan. 314 (1906) ; Kaneko v. Atchison, etc., R. Co., 164 Fed. 263 
 (1908 Cal. Stat.) ; Mascitelli v. Union C. Co., 151 Mich. 693 (1908) ; Ferara 
 V. Auric M. Co., 43 Colo. 496 (1908) ; Mahoning Ore Co. v. Blomfelt, 163 
 Fed. 827 (1908 Minn. Stat.). Among the cases denving the right are Adam 
 v. Brittish & F. S. Co., L. R. (1898) 2 Q. B. Div. 430 ; J2£ML\[^^emisylvania 
 Co,^_i8i_Ea._i25__(i82j) ; McMillan v. Spider Lake Co., 115 Wis. 332 (1902) ; 
 Roberts V. Great X or them R. Co., 161 Fed. 239 (1904, Wash. Stat.) ; Maio- 
 ramo v. B altimore & O. R. Co., 216 Pa. 402 C lqot.). Affirmed, 213 U. S. 268, 
 Iged by'Ta. Act of June 7, 191 1, P. L. 678.
 
 CLARK t'. MOREY 1 37 
 
 for theirs, to their damage, is like preying on a visitor, or inhospit- 
 ably i)lundering a wreck on shore. To elevate our own character as 
 a nation, and the purity of our judicial tribunals, it seems to me we 
 ought to go as far in the redress and punishment of these decep- 
 tions as can be vindicated on any sound principle. 
 
 Some of the statutes, passed in what we consider a compara- 
 tively barbarous age, are not without admonitory lessons on this 
 subject. Beside, one before referred to, the 9 Edw. 3 d. st. 2, ch. i, 
 empowers alien merchants to sell and buy freely any where, and 
 to have redress if disturbed and damages, i Stat, at Large, 212. 
 And 2"] Ed. Ill, st. 2 ch. 18, 19, provides, that as such merchants 
 "can not often long tarry in one place we will and grant that speedy 
 right be to them done from day to day and from hour to hour, ac- 
 cording to the laws," etc. i Stat, at Large 281. 
 
 Again, in the 3d article of our Treaty of 1794 with England, 
 each power is authorized in America "freely to carry on trade and 
 commerce with each other." So we are under treaty obligations to 
 Great Britain and most other European powers to admit their mer- 
 chandise on favorable terms, and to allow their merchants to trade 
 here as those of favored nations. But it would be a mockery of 
 such provisions and engagements, if we prevented them from sell- 
 ing their goods after arriving' here (Ch. J. Marshall in Brown v. 
 State of Maryland, 12 Wheat. 447) ; unless noxious to health or 
 morals ; or if we made onerous discriminations against them, or pre- 
 vented their receiving the proceeds of their goods, or abstained 
 from yielding protection against injuries to thern, or to their marks. 
 vSee Taylor v. Carpenter, 3 Story, R. 461. 
 
 I am not satisfied, then, that the judge at the trial did wrong in 
 not charging on this point .as desired by the defendants. Nor am I 
 dissatisfied with the verdict in law or fact, in this respect. 
 
 New trial refused and judgment on the verdict.-^ 
 
 CLARK V. AIOREY. 
 
 Supreme Court of New York, 181 3. 
 10 Johns. {N. Y.) 69. 
 
 This was an action, of ..assumpsit, on a promissor y note made by 
 the defendant to the plaintiff, dated the 5th June, 181 1, for $209.50, 
 I)aya1)le on demand. The declaration was filed in May term, 1812. 
 In August term last the defendant pleaded, i. Non assumpsit; 
 2. that the plaintifif ought not to have and maintain his action, etc., 
 
 -* Accord : Collins Co. v. Brouni, 3 K. & J. 423 (1875) ; Palmer v. De Witt, 
 47 N. Y. 532 (1872). See Frohman v. Ferris, 238 111. 430 (1909). 
 
 As an alien may sue, so also he may be sued, provided the court has ac- 
 quired jurisdiction of his person or property. Field v. Kennedy, 7 Md. 209 
 (1854); Rnss V. Mitchell, 11 Fla. 80 (1864); Roberts v. Knights, 89 Mass. 
 449 (1863) ; Olcott v. MacLean. 72 N. Y. 223; McHenry v. New York P. & 
 O. R. Co., 25 Fed. 65 (1885) ; Vestal v. Ducktown Sulphur, etc., Co., 210 Fed. 
 375 (1911)-
 
 138 PARTir.S 
 
 \ because the defendant says, that the plaintiff is an aUen, born in for- 
 Wign i>arts. out of llie allegiance of the United States of America, 
 land within the allegiance of a foreign state, to wit, of the united 
 jkingdoni of Cireat Britain and Ireland, and not made a citizen of the 
 United States of America, by naturalization or otherwise, to wit, at, 
 etc. And that the persons exercising the powers of government in 
 the said foreign state, the united kingdom of Great Britain and Ire- 
 land, aforesaid, are at war with, and enemies of, the United States 
 of America, to wit, at, etc., and that the said plaintiff, so being 
 such alien born, etc., and an enemy of the United States of Amer- 
 ica, and not made a citizen by naturalization, or otherwise, entered 
 and came into the United States of America, and still remains 
 therein, without any letters of safe conduct from the President of 
 the United States of America, or any license to be, reside or remain 
 in these United States of America. i\nd this the said defendant is 
 ready to verify, wherefore he prays judgment if the said plaintiff 
 ought further to have or maintain his aforesaid action thereof 
 against him," etc. 
 
 To this plea there was a demurrer, and joinder in demurrer. 
 Kent, C. I. : The second ])lea states that the i)laintiff is an alien, 
 born out of the allegiance of the United States, and under the alle- 
 giance of the King of the United Kingdom of Great Britain and Ire- 
 lland, and not naturalized, and that war exists between the United 
 States and the said kingdom ; and that the plaintiff came into the 
 ; United States and remains here without any letters of safe conduct 
 ' from the President of the United States, or any license to remain 
 ' here. 
 
 This plea is not without jirecedent in the English books; (Rast. 
 Ent. 252, b. 605 b; Denier v. Arnaud, 4 Mod. 405, the record of 
 which plea Lord Kenyon, in 8 Term Rep. 167, says he had exam- 
 ined;) but there are many and weighty reasons why it can not be 
 supported. To render the plea of alien enemy good, it seems now 
 to be understood to be the law of England that the plea must not 
 only aver that the plaintiff was an alien enemy, but that he was ad- 
 hering to the enemy. The disability is confined tT^TTiese two cases: 
 
 1. Where the right sued for was acquired in actual hostility, as was 
 the case of the ransom bill in Anthon v. Fisher; (Doug. 649, note;) 
 
 2. \Miere the ])laintiff, being an alien enemy, was resident in the 
 enemy's country; such was the form of the plea in George v. Pozvell 
 (Fortesc. 221,) and in Le Bret v. Papillon; (4 East, 502;) and such 
 was the case with the persons in whose behalf, and for whose benefit 
 the suit was brought upon the policy, in Brandon v. Neshitt. (6 
 Term Rep. 23.) 
 
 It was considered in the Common Pleas, at Westminster, as a 
 settled point, (Heath, J., and Rooke, J., in Sparenhiirg v. Bannatyne, 
 I Bos. & Pull. 163,) that an alien enemy under the king's protec- 
 tion, even if he were a prisoner of war, might sue and be sued. This 
 point had long before received a very solemn decision in the case 
 of Wells V. Williams, (i Ld. Raym. 282, i Lutw. 34 S. C., i Salk. 
 46.) It was there decided that if the plaintiff came to England be- 
 fore the war, and continued to reside there, by the license and
 
 CLARK Z'. MOREY I39 
 
 under the protection of the king he might maintain an action 
 upon his personal contract; and that if even he came to Eng- 
 land after the breaking out of the war, arid continued there under 
 the same protection, he might sue upon his bond or contract ; and 
 that the distinction was between such an ahen enemy, and one com- 
 morant in his own country. The plea, in that case, averred that the 
 plaintiff was not only born in France, imder the allegiance of the 
 French king, then being an enemy, but that he came to England, 
 without any safe conduct, and the plea was held bad on demurrer. 
 It was considered, that if the plaintiff came to England in time of 
 peace, and remained there quietly, it amounted to a license, and that 
 if he came over in time of war, and continued without disturbance, 
 a license would be intended. It is, therefore, not sufficient to state 
 that the plaintiff came here without safe conduct. The plea must set 
 forth, affirmatively, every fact requisite to prove that the plaintiff 
 has no right of action. It is not to be favored by intendment. This 
 was the amount of the decision in Casseres v. Bell ; (8 Term Rep. 
 i66;) and one of the judges in that case referred to the decision in 
 Udells v. JVilliams, as authority, and so it has uniformly been consid- 
 ered in all the books ; and all the former precedents and dicta that 
 are repugnant to it may be considered as overruled. Though there 
 is a loose and unsatisfactory note of Sylvester's Case, in 7 Mod. 
 150, which was a few years later, and looks somewhat to the con- 
 trary ; yet it never has been considered as affecting the former deci- 
 sion. Indeed, the law on this subject has undergone a progressive 
 improvement. The doctrine once held in the English courts, that an 
 alien bond became forfeited by the war, (Year Book, 19 Edw. IV, 
 pi. 6,) would not now be endured. The plea is called in the books 
 an odious plea, and the latter cases concur in the opinion that the 
 ancient severities of war have been greatly and justly softened, by 
 modern usages, the result of commerce and civilization. 
 
 In the case before us, we are to take it for granted (for the 
 suit was commenced before the present war) that the plaintiff came 
 to reside here before the war, and no letters of safe conduct v.ere, 
 therefore, requisite, nor any license from the president. The license 
 is implied by law and the usage of nations ; if he came here since the 
 war, a license is also implied, and the protection continues until the 
 executive shall think proper to order the plaintiff out of the United 
 States ; but no such order is stated or averred. This is the evident 
 construction of the act of congress of the 6th July, 1798, entitled, 
 "An act respecting alien enemies." (Sess. i cong. 5, ch. y^.) Until 
 such order, the law grants permission to the alien to remain, though 
 his sovereign be at war with us. A lawful residence implies protec- 
 tion, and a capacity to sue and be sued. A contrary doctrine would 
 be repugnant to sound policy, no less than to justice and humanity. 
 
 The right to sue, in such a case, rests on still broader ground 
 than that of a mere municipal provision, for it has been frequently 
 held that the law of the nations is part of the common law. By the 
 law of nations, an alien who comes to reside in a foreign country, is 
 entitled, so long as he conducts himself peaceably, to continue to re- 
 side there, under the public protection ; and it requires the express
 
 140 I'AKTIl-S • 
 
 will of the sovorcijjn power lo order him away. The rigor of the old 
 rules of war no longer exist, as llynkershoek admits, when wars are 
 earried on with the moderation tliat the intluence of commerce in- 
 si)ires. It may be said of commerce, as Ovid said of the liberal 
 arts: Htnollit mores, nee sinit esse feros. 
 
 W'e all recollect the enlightened and humane iirovision of Magna 
 Charta (c. 30) on this subject; and in l^-ance the ordinance of 
 Charles Y as early as 1370, was dictated with the same magnanimity 
 — for it declared that in case of war, foreign merchants had nr)thing 
 to fear for they might depart freely with their effects, and if they 
 happened to die in France, their goods should descend to their heirs. 
 (Renault's Abrege Chron. torn, i, 338.) So all the judges of Eng- 
 land resolved, as early as the time of Henry VIII, that if an alien 
 came to England before the declaration of war, neither his person, 
 nor his efifects, should be seized in consequence of it. (Bro. tit. 
 Property, pi. 38; Jenk. Cent. 201, case 22.) And it has now become 
 the sense and practice of nations, and may be regarded as the public 
 law of Europe, (the anomalous and awful case of the present vio- 
 lent power on the continent excepted,) that the subjects of the 
 enemy, (without confining the rule to merchants,) so long as they 
 are permitted to remain in the country, are to be protected in their 
 persons and property, and to be allowed to sue as well as to be 
 sued. (Bynk. Ouoest. Jur. Pub. b. i c. 25 s. 8.) It is even held, 
 that if they are^ordered away in consequence of the war, they are 
 still entitled to leave a power of attorney, and to collect their debts 
 by suit. (Emerigon, Traite des Assurances, torn. i. 567.) 
 
 Modern treaties have usually made provision for the case of 
 aliens found in the country, at the declaration of war, and have al- 
 lowed them a reasonable time to collect their efifects and remove. 
 Bynkershoek gives instances of such treaties, existing above two 
 centuries ago ; and for a century past, such a provision has become 
 an established formula in the commercial treaties. Emerigon, who 
 has examined this subject with the most liberal and enlightened 
 views, considers these treaties as an affirmance of common right, or 
 the ])ublic law of Euro]:»e, and the general rule is so laid down by 
 the later publicists, in conformity with this i)rovision. (Vattel, b. 
 3. c. 4. s. 63. Le Droit Public de L'Europe, par Mably. Oeuvres, tom. 
 6. 334.) Some of these treaties have provided that foreign subjects 
 should be permitted to remain and continue their business, notwith- 
 standing a rupture between the governments, so long as they behave 
 I)eaceably ; (Treaty of Commerce between Great Britain and France, 
 in 1 7S6, and of Amity and Commerce between Great Britain and the 
 United States, in 1794;) and where there was no such treaty, the 
 permission has been frequently announced in the very declaration 
 of war. Sir Michael Foster (Discourse of High Treason, 185, 186) 
 mentions several instances of such declarations; and he says that 
 the aliens were thereby enabled to acquire personal chattels, and to 
 maintain actions for the recovery of their personal rights, in as full 
 a manner as alien friends. The act of Congress of July, 1798, be-
 
 CLARK Z'. MOREY I4I 
 
 fore alluded to, provides, in cases where there may be no existing 
 treaty, a reasonable time, to be ascertained and declared by the 
 president to alien enemies resident at the opening of the war, "for 
 the recovery, disposal and removal of their goods and effects." This 
 statute may be considered, in this respect as a true exposition and 
 declaration of the modern law of nations. 
 
 The opinion that wars ought not to interfere with the security 
 and collection of debts, has been constantly gaining ground, and the 
 progress of this opinion is worthy of notice, as it will teach us with 
 what equity and liberality, and with what enlarged views of national 
 policy, the question has been treated. A right to confiscate the 
 debts due to the enemy was the rigorous doctrine of the ancient law ; 
 but a temporary disability to sue, was all Grotius (b. 3. c. 20. s. 16) 
 seemed willing to allow to hostilities. Since his time, continued and 
 successful efforts have been made to strengthen justice, to restrain 
 the intemperance of war, and to promote the intercourse and hap- 
 piness of mankind. The power to collect debts, notwithstanding the 
 event of war, is not an unusual provision in the conventional law of 
 nations. In the treaty of commerce between England and France, in 
 1 713, it was provided by the 2d article, that in case of war, the sub- 
 jects of each power residing in the dominions of the other, should 
 be allowed six months to retire with their property, and in the mean- 
 time, should be at full liberty to dispose of the same, "and the sub- 
 jects on each side were to have and enjoy good and speedy justice, 
 so that during the said space of six months they may be able to re- 
 cover their goods and effects." So also in the treaty of commerce 
 between Great Britain and Russia, in 1766, and again in 1797, it was 
 provided, that in case of war, the subjects of each were to be allowed 
 one year to v/ithdraw v/ith their property ; and they were also author- 
 ized to substitute others to collect their debts for their benefit, "which 
 debts the debtors should be obliged to pay in the same manner as if 
 no such rupture had happened." A similar provision, in substance, 
 was inserted in the treaty between the United States and Russia, in 
 1785 ; and in the treaty of commerce between the United States and 
 Great Britain, in 1795, the government of each country was prohib- 
 ited to interfere, either by confiscation or sequestration, with private 
 contracts, and it was expressly declared to be unjust and impolitic, 
 that the debts of individuals should be impaired by national differ- 
 ences. 
 
 The case before us does not raise the question, nor do we give 
 any opinion in favor of the right of action by aliens who resided in 
 the enemy's country when war was declared, and when the action 
 was commenced. The cases appear to be against such right. But as ' 
 to aliens who were residents with us when the war broke out, or who 
 have since come to reside here, by a presumed permission, the au- 
 thorities seem to be decisive. And whether we consider this case in 
 reference to the decisions of the English courts, to the act of Con- 
 gress, or to the sense of European nations, declared in their treaties.
 
 142 PART IKS 
 
 ami hv their writers (in public law, the i^lea must be overruled; and 
 the plaintiff is entitled to judgment, upon his demurrer. 
 Judgment for plaintiff.-^ 
 
 "Accord: Ottcridgc v. Thompson, 2 Cranch. C. C. (U. S.) io8 (1814) ; 
 Janson v. Drcifontcin Con. Min., 87 L. T. 372 (1902) ; Princess Thurn and 
 Taxis V. Moffit, 112 L. T. 114 (1915)- 
 
 The rule is well settled that during any war, foreign or civil, an action 
 can not be prosecuted by an enemy residing in the enemy's territory, but must 
 be stayed until the return of peace. The reasons assigned are that an enemy 
 shall not have the protection of the courts and that the fruits of an action 
 shall not be remitted to a hostile country to furnish resources to the enemy. 
 Kcrsha v. Kclscy, 100 Mass. 561 (186S) ; McConncl v. Hector, 3 B. & P. 113 
 (1802'); Alcinoiis v. Nigrcii, 4 El. & B. 216 (1854); Janson v. Drcifontein 
 Consolidated Mines, L. R. (1902) App. Cas. 484; IFilcox v. Henry, I Pall. 
 (PaJ_j69 (1782) ; R ttssel v. Skip-u'ith, 6 Binney (Pa.) 241 (1814) ; Levine v. 
 Taylor, 12 Mass. 8 (1815) ; Bishop v. Jones, 28 Tex. 294 (1866) ; Whelan v. 
 Cook, 29 Md. I (1867) ; Knoefel v. Williams, 30 Ind. i (1868) ; Sanderson v. 
 Morgan, 39 N. Y. 231 (1868) ; Zacharie v. Godfrey, 50 111. 186, 99 Am. Dec. 
 506 (1869) ; Haymond V. Camd en, 22 W'.Wa. 80 (1883). The rule, however, sus- 
 pends the remedy only and the right of action revives on suspension of hos- 
 tilities. Bellv. Chapman, 10 Johns. (N. Y.) 182 (1813) ; Hutchinson v. Brock, 
 II Mass. 119 (1814) ; Crutcher v. Hord, 4 Bush. (Ky.) 360 (1868) ; Louisville 
 & N. R. Co. V. Buckner, 8 Bush. (Ky.) 277 (1871), and by treaty or law "the 
 statute of limitations is ordinarily prevented from running. Hopkirk v. Bell, 
 3 Cranch (U. S.) 454 (1806) ; Steivart v. Kahn, 78 (U. S.) 493 (1870) ; Cross 
 V. Sabin, 13 Fed. 309 (1882). 
 
 The existence of war does not prevent the citizens of one belligerent 
 from taking proceedings against the citizens of the other in their own 
 courts, whenever the latter can be reached by process. Masterson v. Howard, 
 85 U. S. 99 (1873) ; Seymour v. Bailey, 66 ill. 288 (1872) ; McNair v. Toler, 
 21 Minn. 175 (1875) ; McVeigh v. United States, 78 U. S. 259 (1870); Uni- 
 versity V. Finch, 85 U. S. 106 (1873).
 
 CHAPTER III. 
 Actions. 
 
 SECTION I. COMMON-LAW ACTIONS.^ 
 
 3 Blackstone's Commentaries 117. 
 
 With us in England the several suits, or remedial instruments of 
 justice, are from the subject of them distinguished into three kinds: 
 actions personal, real, and mixed. 
 
 Personal actions are such whereby a man claims a debt, or per- 
 sonal duty, or damages in lieu thereof ; and, likewise, whereby a man 
 claims a satisfaction in damages for some injury done to his per- 
 son or property. The former are said to be founded on contracts, 
 the latter upon torts or wrongs ; and they are the same which the 
 civil law calls "actiones in personam, quae adversus euni infenduntur, 
 qui ex contractu, vel delicto obligatus est aliquid dare vel concedere."- 
 Of the former nature are all actions upon debt or promise ; of the lat- 
 ter, all actions for trespasses, nuisances, assaults, defamatory words, 
 and the like. 
 
 Real actions, (or, as they are called in the Mirror,^ feodal ac- 
 tions) which concern real property only, are such whereby the 
 plaintiff, here called the demandant, claims title to have any lands 
 or tenements, rents, commons, or other hereditaments, in fee-simple, 
 fee-tail, or for term of life. By these actions formerly all disputes 
 concerning real estates were decided ; but they are now pretty gener- 
 ally laid aside in practice, upon account of the great nicety required 
 in their management, and the inconvenient length of their process : 
 a much more expeditious method of trying titles being since intro- 
 duced, by other actions personal and mixed. 
 
 Mixed actions are suits partaking of the nature of the other 
 two, wherein some real property is demanded, and also personal 
 damages for a wrong sustained. As for instance an action of waste ; 
 which is brought by him who hath the inheritance in remainder or 
 revision, against the tenant for life who hath committed waste 
 therein, to recover not only the land wasted, which would make it 
 merely a real action ; but also treble damages, in pursuance of the 
 statute of Gloucester,'* which is a personal recompense; and so both, 
 being joined together, denominate it a mixed action. 
 
 Under these three heads may every species of .remedy by suit or 
 action in the courts of common law be comprised. 
 
 ^ See Maitland's History of the Register of Original Writs, 3 Harvard Law 
 Review, 97 ct scq., reprinted in Select Essays in Anglo-American Legal His- 
 tory, vol. II, p. 549. Stephen on Pleading, Chap. I ; Gould on Pleading 
 (Will's ed.) Chap. I; Chitty on Pleading, Chap. II. 
 
 ^4 Inst. 6, 15. 
 
 ' Ch. 2, § 6. 
 
 ^6 Edw. I, ch. 5.
 
 144 ACTIONS 
 
 3 Stri:i:t's 1'\)L"ni)atio\.s of Li:(;ai, LiAi'.ii.nv 44."' 
 
 To ijo tliroiigh the catalogue of actions in order to place them 
 projierly in this classification would be unprofitable and the result 
 unsatisfactory. We have a hint of the dilTiculties that would be 
 encountered in such an undertaking when we learn that Bracton 
 could hardly determine in his own mind whether the assizes of novel 
 disseisin and morte d'ancestor were actions in rem or in personam. 
 We must, however, notice a few of the most important of the actions 
 and observe where they belong. 
 
 At the top of the scale actions avialable for the recovery of 
 lands and interests therein was the writ of right, the most real of 
 the real actions, the great and final remedy for the recovery of pro- 
 prietary interests in land. Closely associated with this remedy in 
 procedure v.ere certain other writs said to be in the nature of the 
 writ of right. Such were the w^it of right of dower, the formedon 
 in descender and reverter, and the wTit of right de rotionabili parte- 
 
 Below the w^it of right were the possessory real actions known 
 as the assizes and the writ of entry. In the assize of nozfel disseisin 
 the plaintiff recovered both seisin and damages, this being, says 
 Blackstone, the only instance where damages were recoverable in a 
 possessory action at common law. 
 
 The assizes were in the nature of statutory remedies, and avail- 
 able only under circumstances defined for each. The writ of entry, 
 on the other hand, was the universal remedy for the recovery of pos- 
 session w-rongfully withheld from the owner. Its forms were many, 
 "being plainly and clearly chalked out in that most ancient and 
 highly venerable collection of legal forms, tlie Registrnm Brevium." 
 Some form of this writ was available by a party ousted of his tene- 
 ments by abatement, intrusion, or disseisin, and, in general, for de- 
 forcements. But the widow's writs for obtaining her dower had 
 special names : writ of dower and writ of dower unde nihil habet. 
 Tf too much were assigned for dower her holdings could be cut down 
 by means of a writ for the admeasurement of dower, sued out at 
 the instance of the heir or his guardian. The writs of dower were 
 analogous to the writ of right. 
 
 For disturbance or usurpation of the right of presentation to a 
 benefice there was a scheme of real actions beginning with the writ 
 of right of advowson and ending in the quare impedit, which latter 
 remedy, in Blackstone's day, had supi)lanted the others and then 
 remained almost the sole real action in common use. For disturb- 
 ance in franchises, commons, ways, and tenures, the usual remedy 
 was by an action on the case ; but a real action for the admeasure- 
 ment of common and an action upon a writ quod permittat w^ere 
 respectively available for surcharging and disturbing the common. 
 
 The writs de ejectione firmae and quare ejecit infra terminitm 
 were maintainable at the suit of a tenant for years who was dispos- 
 sessed of his interest in the term. The former lay against the les- 
 sor, reversioner, remainderman, or any stranger who was himself 
 
 See tills volume frenerally for the personal actions at common law.
 
 ACTIONS 145 
 
 the wrongdoer ; the other against a person claiming under a wrong- 
 doer. From the qiiare ejecit came the modern action of ejectment. 
 These actions are, hke waste, mixed, inasmuch as the plaintiff re- 
 covers the unexpired term and damages for the injury. Originally 
 the recovery of damages was the chief object in ejectment, but as 
 the remedy came to be more and more real and was principally used 
 to try questions of title, this object was lost sight of. The damages 
 recoverable in tlie action of ejectment thus became nominal, and the 
 plaintiff was allowed to sue for his actual damages in an independent 
 action for mesne profits. 
 
 Of personal common-law actions the most important are account, 
 covenant, debt, detinue, assumpsit, trespass, case, trover, and re- 
 plevin. These, as we have seen, are divided into two classes — actions 
 ex contractu and actions ex delicto; a classification logical enough 
 in itself, but made somewhat unsatisfactory by the supposed neces- 
 sity of forcing the action of detinue into one or the other divisions. 
 
 One who compares the treatise of Bracton with such a modern 
 work as Chitty on Pleading will be struck with the fact that the 
 comparative importance of the real and personal actions has been 
 reversed in the period spanning the six intervening centuries. Brac- 
 ton wrote a big book, and a large part of the really English law 
 which he undertook to expound is found in connection with the sub- 
 ject of real actions. Of the personal actions he has little or nothing 
 to say. In Blackstone's treatise only the personal actions are thought 
 deserving of attention. The old real actions vv^ere practically obso- 
 lete when Chitty wrote (1808), and within the succeeding genera- 
 tion legislation abolished nearly every remaining vestige of them. 
 The procedure incident to their prosecution was too cumbersome. 
 
 It was a toilsome and tedious process, that by which English 
 remedial law was wrought out. Remedies conceived and partially 
 developed in one field had to be warped and bent to strange uses. 
 Ejectment, assumpsit, trover, all illustrate this. Wondrous are the 
 mazes encountered even in a casual glance at the history of the 
 various actions. That there has never been a logical classification 
 in this field is not surprising. Before the time of Blackstone no man 
 could have been in a position to see tlae subject in its entirety. Even 
 when Coke Avrote, many new things were yet to be done with such 
 actions as assumpsit, detinvie, trover, and replevin, and in Black- 
 stone's day some parts of the long cavalcade of actions had already 
 passed or were receding from view. 
 
 10 — Civ. Proc.
 
 J46 A(."n(»NS 
 
 "yy'KX^^^ 
 
 '-^^^-^ ''■^■y (a) Eijectment.* 
 
 ^^^^ ^'•' DEX^r.i- (/<•;;;. j(Ml.\S()X v. .MORRIS. 
 
 SrpRKME Coi'RT or Xr.w jk.nskv, 1822. 
 7 A'. /. /.. 6. 
 
 \ 
 
 This was an action of cicclnicnt, and came before the court ujion 
 a rule to show cause why tlie nonsuit which had been granted by tlie 
 judj^e, at the circuit, should not be set aside and a new trial j^ranted." 
 
 KiKKPATRTCK, C. J.: This is an ejectment for lands in Salem. 
 At the trial of the cause, it was moved for a nonsuit by the defend- 
 ant's counsel; because the lessor of the plaintiff had not shown a 
 title by deed or other conveyance, nor a possession in themselves and 
 those under whom they claimed, for the term of twenty years, and 
 the ])laintilT was called accordingly. 
 
 The ground of the nonsuit, as thus presented by the counsel, 
 and taken by the court, is not c]uite so ])recisely stated as could have 
 been A\-ishcd. From the manner in which it is exi)ressed, it is left 
 doubtful \\-hether it was intended to say, that the lessors of the 
 plaintiflf had not shown a possession of twenty complete years, and 
 therefore not a sufficient one to maintain an action of ejectment, or 
 that they had not shown a possession within twenty years before 
 action brought, and therefore were barred by the statute. 
 
 It will be necessary, therefore, to look into the case, and see how 
 far the motion is supported in point of fact, ujion either the one or 
 the other of those grounds. 
 
 But before I proceed to this, T feel myself constrained, from the 
 course which the argument at the bar has taken, rather than from 
 anything in the case itself, to make a few observations respecting 
 the action of ejectment, as it has been used in this state, from the 
 earliest settlement of the country down to this time. I say, I feel 
 myself constrained to do this from the course of the argument; 
 for it has been insisted, that the i)laintifT in ejectment always has 
 been, and still is obliged, in order to maintain his suit, to show, 
 what the counsel call, a comj)lete, substantive, impregnable title; 
 that is. as it has been explained, a regular deduction of title, by deed 
 from Charles II down to himself, or an exclusive and uninterrupted 
 possession in himself and those under whom he claims, formerly 
 for sixty years, then for thirty, and now for twenty, according as the 
 successive statutes of limitation prevailed; or in other words, such 
 a title as might be disputed, indeed, in point of fact, but could never 
 be overcome by one superior to it. And by way of fortifying this 
 position, reference is made to former practice, in which it is said 
 such deduction was uniformly made, and always required. 
 
 'See 3 Blackstone's Commcntaric<:, 199; 3 Stephen's Commentaries 
 Ci5th ed.), 403; Adams on Ejectment, ch. i; Sedgwick & Wait on Trial of 
 Title to Land. ch. i. 
 
 ' Part of the opinion is omitted.
 
 JOHNSON V. MORRIS 147 
 
 Let us examine this position a little. By the common law, estates 
 of freehold in lands passed by livery of seisin only; that is, by a de- 
 livery o\er the actual possession. He, therefore, who was in the 
 actual possession of land, v.^as, prima facie, the tenant of the free- 
 hold, and had in him the heritable sesina facit stipitem. If he were 
 ousted or dispossessed of this freehold, by one who had no right, he 
 might without process of law, make a peaceable entry, or, if de- 
 terred from that, he might make claim from year to year, which 
 was called continual claim, as near the land as he could, and such 
 entry or claim restored him to his lawful seisin, and made him capa- 
 ble again of conveying, either by descent or purchase. This right of 
 entry, though it might be tolled or taken away by a descent cast, and 
 so, generally speaking, must be pursued during the life of him that 
 made the ouster, or be forever lost, yet it was limited to no particular 
 period or number of years; so that if it was not actually lost by 
 descent or otherwise, the lawful owner might, at all times, restore 
 himself by entering upon the wrongdoer, in a peaceable manner, 
 and turning him out; but if he suffered it to be once lost, he could 
 no longer restore himself by his own act, but must have recourse to 
 his action at law.^ And. indeed, even where it was not lost, as it 
 but seldom happened that the wrongdoer would tamely submit to be 
 turned out without force, the owner, if his object was to gain the 
 actual possession and enjoyment of the land, and not merely to put 
 himself in a capacity to make a lawful conveyance, was generally 
 obliged to have recourse to such action, and to call to his aid the 
 process of the law, to restore to him that right which he could not 
 obtain by peaceable means without it; so that, in most cases it may 
 l)e said, he was put to his action, even when his right of entry was 
 not tolled or taken away. 
 
 This action might be, in the first place, by writ of entry,^ in 
 which he undertook to prove his own former possession, and that the 
 defendant, or some one under whom he held, had dispossessed him ; 
 to which the defendant might answer by denying the fact of the 
 dispossession, or by showing in himself an older and a better pos- 
 session ; and then, upon the trial, it was adjudged for him who had 
 the clearest right, or it might be, in the second place, after the 
 
 ■ It would seem that in the time o£ Bracton "A term of four days was 
 tlie time during which one who has ousted the owner must de facto hold it 
 in order that he may have seisin of it." Maitland, The Beaiititude of Seisin, 4 
 Law Quarterly Review, 31. 
 
 "At common law a writ of entry was a possessory action brought against 
 the occupant of a freehold in possession under an entry alleged to have been 
 unlawfully made by him or those under whom he claimed. Booth on Real 
 Actions, 172; III Blackstone's Commentaries, 181; 15 Cyc. 1059. These writs 
 were of various sorts according to the nature of the injury intended to be 
 redressed. Steam on Real Actions, 139. By the middle of the eighteenth 
 century they were nearly obsolete and were abolished by the act of 3 and 4 
 William IV, cb. 27, § 36 (1833), but in America they were used in several of 
 the colonies in preference to ejectment and, with modifications, survived the 
 Revolution. Hancock v. Wentworth, 46 Mass. 446 (1843) ; Bussey v. Grant, 
 20 Maine 281; WitJierov v Krllcr ^ ir S. & R. Pa. 271 (1824) ; Potter v. 
 Raker, 19 N. H. 166 (1848). Where still in use, the proceedings are largely 
 statutory. Rev. Laws of Mass. (1902), cb. 179.
 
 14^ At IIONS 
 
 rcii^n of Ilenr}- II by writ of assize, which went upon the suggestion, 
 that tlie demandant's ancestor had died in possession, and that he 
 was tlie next heir; and therefore directed the sheriff to inquire, by 
 a jury, whether this were so, and, if found for the demandant, the 
 land was immediately restored.^" Hut still, even if the demandant 
 prevailed in these actions, it only restored to him his former posses- 
 sion, it decided nothing with respect to the right of property; all 
 that he had to show, in order to n^aintain his suit, was the possession 
 of himself or his ancestor, and this might he overcome by the de- 
 fendant showing an older and a better ])osscssion ; for it never was 
 pretended that the demandant's must be such a possession as estab- 
 lished the ultimate right ; for this, either party might afterwards 
 resort to his writ of right." In these possessory actions, therefore, 
 neither the deed of feoffment, by which the estate was created, 
 nor the actual livery of seisin upon such deed were necessarily given 
 in evidence, but the mere possession only. And so also after the 29 
 Car. II which directed that all conveyances of land should be in 
 writing, and not otherwise, it was not necessary, upon the same prin- 
 ciple, to give the writing in evidence, and tlie reason was, that 
 the deed of feoffment and livery of seisin thereupon, in ancient 
 times, and the written conveyance tuider the statute, related to, and 
 were evidence of, the commencement of the estate, and of the ulti- 
 mate right only, which was not at all in question ; but that they 
 could be no proof of the actual and subsequent ])ossession upon 
 which the ouster was alleged to have been committed, and which 
 was the foundation of those possessory actions, and the only thing 
 to be proved in them, or recovered by them. It is true that those 
 might be given in evidence, and might greatly strengthen the proof 
 of possession, but they were not essential to the maintenance of the 
 action ; that depended upon the mere possession. 
 
 To these real actions for the recovery of the possession of 
 lands, succeeded, in common use, the action of ejectment. This 
 was not originally devi.sed as a remedy for injuries done to real 
 estates, that is, to estates or freehold in lands, but as a remedy 
 for injuries done to chattels real, such as terms for years, which 
 were considered as mere chattel interests. But then, as one who 
 
 '"III Blackstone's Commentaries, 184; 1 Pollock & Maitland's Hist. F".ng:. 
 L. (2d ed.) 144. Writs of assize were also abolished in Entrland in 1833. 
 
 " The writ of right was the most important of the real writs. While it 
 lay concurrently with all other real actions in which an estate in fee simple 
 could be recovered, it was the exclusive and final remedy of an owner of land 
 in fee simple who had lost the right to recover in a possessory action. Ill 
 Blackstone's Commentaries, 193. The writ, with other obsolete real actions, 
 was abolished in England in 1833. In America the writ of right was in use 
 in several of the .states. Haines v. Budd, i Johns. (N. Y.) 335 (1800) ; Leon- 
 ard v. Leonard^ 10 Mass. 280 (1813) ; Green v. Liter, 8 Cranch (U. S.) 229 
 (1814); Ten Eyck v. Waterbury, 7 Cowcn (N. Y.) 51 (1827); Boiling v. 
 The Mayor, 3 Rand. (Va.) 563 (1825); Genin v. Ingersoll, 2 W. Va. 558 
 (1868). So also the Writ of Formedon, the writ of right of the tenant in 
 tail, IVells v. Prince, 4 Mass. 63 (1808) ; Dozv v. Warren, 6 Mass. 327 (1810). 
 Statutory real actions and the action of ejectment have superseded these 
 ancient methods of trying title. Kerr v. Leigliton, 2 Greene (Iowa) 196 
 (1849) ; Betz V. Mnllin, 62 Ala. 365 (1878).
 
 JOHNSON V. MORRIS 149 
 
 came into a court of justice to complain that he had been ousted 
 of his term, must necessarily show that such term existed, and that 
 the lease under which he claimed was a good and valid lease, and, 
 of course, that the lessor had a right to make it, the title of the 
 lessor was thereby brought into question, as fully and upon the 
 same principles as it would have been in the real action; so that 
 though the action of ejectment got clear of all the intricacy and per- 
 plexity of the real action, and so become an easy and expeditious 
 method of trying the title to land, yet it required precisely the same 
 proof of title in substance as the real action did. For tliough the 
 form of the action may have been changed, yet the great principles 
 of right have not been changed, nor can they be without a total 
 subversion of the whole system of property in land. In a real ac- 
 tion, the demandant must show his possession, his ouster, and his 
 right to re-enter; in an ejectment, the lessor of the plaintiff must 
 show the very same thing;- — he must show that he has been in pos- 
 session of the land ; that it is now withholden from him, which is an 
 ouster; and that he had a right to re-enter and make the lease in 
 question. I say he must show those things, for the lease, entry and 
 ouster, which are confessed are the mere form of the action, and 
 have nothing to do with the substantial right. The title, therefore, 
 vdiich the lessor of the plaintiff, by the consent rule, is bound to rest 
 upon, and which he is obliged to make out at the trial, is his right of 
 entry, (for if he had this right, it is always confessed that he had a 
 right to make, and did make, the lease) a right which, upon the 
 principles of the common law, necessarily results from his having 
 had an anterior and peaceable possession of the lands in question, 
 and their being now withholden from him by the defendant ; a right, 
 too, which can not be overcome by any subsequent possession, unless 
 it has been tolled or taken- away in the manner before mentioned, or 
 is restrained by the statutes of limitation. 
 
 Let us, then, look a little to the history of these statutes, and 
 consider their nature and effect. 
 
 I have said before, that this right of entry by the common law, 
 was unlimited, in point of time, as were also the real actions of 
 which I have spoken. In the progress of society, however, it was 
 found necessary to constrain men to pursue their rights within a 
 reasonable time or to abandon them forever, and especially so where 
 they were to be pursued by the mere act of the party himself, with- 
 out the intervention of judicial authority. Hence, after sundry other 
 statutes, the 32 Henry VIII which limits writs of right to sixty 
 years ; writs of assize and entry and other possessory writs, if 
 founded upon the possession of one's ancestors, to fifty years; and 
 if founded upon one's own possession, to thirty years. Hence, also, 
 the 21 Jac. I, which declares, that none shall make entry into lands 
 but within twenty years next after his right or title shall accrue to 
 the same.^- After this last statute, if the lawful owner did not make 
 
 "In England the Act of 3 and 4 William IV, ch. 2y (1833), reduced the 
 period of limitation in actions relating to real property, from sixty to twenty 
 years, except in cases of disability, in which ten years from the removal of 
 such disability was allowed for the assertion of their rights. By the Act of
 
 15*^ ACTIONS 
 
 his entry, and si) restore liinisclf to liis |)()sscssi()n within the time 
 therein prescribed, liis right to do so in this extra-judicial manner 
 was gone, but still his right to have possession of the land re- 
 mained as before. The only dili"crence in his condition was, that be- 
 fore he had the remedy in his own hands, and he could restore him- 
 self when he pleased; but that now his remedy was in the hands of 
 the law, and he must be restored, if at all, by its judicial process. 
 r>ut his right, in both cases, was the same, a mere i)ossessory right, 
 founded upon his having had the possession, and his having been 
 turned out of it by the defendant; in both cases he was restored to 
 his possession, and his possession only. 
 
 But those statutes of limitation which governed those remedies 
 in England were not considered as extending to this country, until 
 the Act of ^7^7. which declares, that "all the b'.nglish statutes con- 
 cerning tfie limitation of actions, real and personal, shall be in force 
 here." 
 
 [The court discusses the early statutes of limitation and con- 
 tinues:] 
 
 The right of the lawful owner, therefore, to enter upon the 
 wrongdoer in this extra-judicial manner, and so to restore himself 
 to his possession and make leases, etc., from the first settlement of 
 the province till the act of 1727, was wholly unlimited in point of 
 time; from that time till the Act of 1787 it was limited to sixty 
 }ears ; after that, in some cases, to thirty years ; and since the Act of 
 1798, in all cases, with the usual sa\ings, to twenty years :^'' and as 
 this right of entry is the foundation of the action of ejectment, that 
 action, of course, was limited in the same manner, and not other- 
 wise. But that limitation is merely a limitation of the time within 
 which the entry must be made, and, by no i)ossible construction, a 
 designation of the time during which the possession must have 
 continued. Can any book case be found in which, since the 21 Jac. 
 1, a possession of twenty complete years has been holden necessary 
 to maintain an ejectment? None such can be found. One comes 
 into a court of justice, and says he has been in i)ossession of lands 
 for five, ten, or iifteen years, and that the defendant has turned him 
 out, and holds him out, shall he be told he has no redress, because 
 
 37 and 38 Victoria, cli. 37 (1S74), twelve was sul)slituted for twenty years 
 and .six years for the extra ten allowed to persons under disabilit}-. 
 
 In Pennsylvania the Act of Marcii 26, 1785 (2 Smith's Laws 299, § 2), 
 barred an entry after the expiration of twenty-one \ears, hut the entrj' is 
 onlv barred bv hostile and adverse possession. Jfnzvic v. Scii.'ioiiaii. 6 S. ik 
 R. "(Pa.) 21 (1820). 
 
 Those under disal)ility were allowed ten years from its removal, § 4. 
 But the ri^bt of entry of persons under disability is definitely limited to 
 thirty years by the Act of April 22, 1836, P. L. 532, § i. Hunt v. IVall, 75 Pa. 
 413 (1874). Ejectment must be brouj:ht within one year after entry to arrest 
 the runnintr of the statute. Doiif/las v. Irvine, 126 f'a. 643 (i88<^). See fur- 
 ther for En^'land. Banniu); on the Limitation of Actions, ch. g, and, for the 
 L'nited States, Kelly on Code Limitations of Actions, ch. 12. N. Y. ("ode Civ. 
 Proc. § 365, recjuircs seisin within twenty years before the commencement of 
 the action. 
 
 " See 3 Compiled Statutes of New Jersey, 3169. Den v. Jl'riylit, 7 N. J. 
 L. 173 (1824') ; Pinckney v. Barrage, 31 N. J. L. 21 (1864).
 
 JOItNSON V. MORRIS I5I 
 
 he has not been in twenty ccniiplete years ? And shall the defendant 
 be justified in withholding from him his peaceable possession, thus 
 tortiously and forcibly gained ? Suppose another should enter and 
 turn him out, and another him, shall the last always hold? To what 
 would all this lead but a mere trial of strength, in defiance of all 
 law ; for it is directly in the tooth of that universally acknowledged 
 ])rinciple, that peaceable possession itself is a title which shall never 
 be disturbed but by one who has a better right, and which, therefore, 
 the law will carefully protect until that right be shown in a judicial 
 manner. And whether that possession has lasted five years, or ten 
 years, or twenty years, the law sees no difference. Upon what 
 ground, then, is this notion of possession of twenty complete years 
 founded? Certainly the 21 Jac. I says no such thing — our Act of 
 1798 says no such tiling; they merely limit the time of entry, but 
 require no possession of twenty complete years for this or any 
 other purpose. Well, if those statutes do not rec]uire it, what is it 
 that does require it? Ts it the common law? Let us, then, lay the 
 statutes of limitation out of the question, and then let us inquire 
 what length of possession did the common law require. Does it 
 say auAthing about twenty years, or thirty, or fifty, or even three 
 score years ? No. Time immemorial was its only limitation — time 
 whereof the memory of man runneth not to the contrary, and be- 
 yond which, of course, no proof could possibly reach. But will any 
 one say, that a possession for time immemorial was necessary to 
 support an ejectment or other possessory action? No one will say 
 so. It is true that, in early times, it was custoAiary, in actions of 
 ejectment, to deduce title from the general pro])rietors, and thereby 
 to cut ofif all pretensions of the defendant at once, and that this con- 
 tinued to be the custom up till the revolutionary war, and for some 
 time afterwards ; and it is true, too, that this is done even till this 
 day, when it can conveniently be done, because it is by far the 
 shortest and safest course, for it stops the mouth of the defendant 
 in limine. But the conclusion that is drawn from this, to wit, that 
 the ejectment was put upon the same footing as the writ of right, 
 and required the same proof, and had the same consequences, is not 
 true. It never was put upon the footing of the writ of right ; it never 
 was conclusive ujion the right of proj)erty ; it never did necessarily 
 require such deduction of title ; but, on the contrary, always de- 
 l)ended upon, and was governed by, its own proper principles ; and, 
 except in die cases I have mentioned, kept within its own proper 
 bounds. I never heard of a nonsuit or a decision made against the 
 l)laintifl^, upon the ground that he had not made such deduction of 
 title, except in one case from Sussex, I think, in the Court of 
 l'>rors at Perth Aniboy, and in that, probably, there might have been 
 intermingled other operative reasons, not much connected with the 
 case, and not now easy to be traced. * * * 
 
 I conclude, then, that the lessor of the plaintiff, in an action of 
 ejectment, must always count upon and show a possession of the 
 land within the time to which the right of entry is limited, and under 
 our Act of 1798, within twenty years next before the action brought, 
 otherwise he is barred; but that he need not show a possession of
 
 15- ACTIONS 
 
 twonty coniiilcto years, or of any oilier iiunibor of years, lurtlier than 
 is necessary to constitute a full and peaceable possession;" and 
 that this being merely a possessory action, and the possession to be 
 proved not being intended to establish the ultimate right, and not 
 depending for its validity upon the manner in which it commenced, 
 but being a mere matter in pais, it may be shown as well without 
 dcetl as with it, though, when without it, it will always be looked 
 upon with greater jealousy, and be overcome with greater ease.^^ 
 
 [The court then reviews the facts, finds evidence of undisturbed 
 possession in the lessors of the plaintiffs and those under whom 
 they held from 1759 to 1813 and concludes:] 
 
 Upon whichsoever of the two grounds first stated we may go, 
 therefore, I see nothing in the case that, in point of fact, can sup- 
 port the motion; and even if it were otherwise, and the lessors of 
 the plaintift had given no evidence of a possession of twenty com- 
 plete years, but only of a possession within twenty years, the motion 
 must fail, for the law is not so. In my opinion, therefore, 
 
 Let the rule for a new trial be made absolute. ^'^ 
 
 "Accord: Smith v. Lorillard, 10 Johns. (N. Y.) 338 (1813) : Hoev v. Fur - 
 man^ I Pa. 295 (1845) ; Currier v. Gale, 91 Mass. 522 (1865) ; Bowman v. Wet- 
 tig, 39 111. 416 (1866) ; Elofrson v. Lindsay, 90 Wis. 203 (1895). As to what is 
 evidence of possession see English v. Johnson, 17 Cal. 107 (i860) ; Courtney v. 
 Turner, 12 Nev. 345 (1877) ; Miller v. Long L<;land R. Co., 71 N. Y. 380 (1S77) ; 
 Perrx v. Weeks, 137 Mass. 584 (1884) ; Thompson v. Burhaus, 79 N. Y. 93 
 (1879) ; Doe V. Roe, 26 Del. 78 (1911). 
 
 "In the absence of a paper title, possession is prima facie evidence of 
 ownership. Strange v. White, 84 Ala. 212 (1887) ; Robinoe v. Doe, 6 Blackf. 
 85 (1841) ; Plume v. Steivard, 4 Cal. 94 (1854) ; Dale v. Faivre, 43 Mo. 556 
 (1869) ; Hunter v. Starin, 26 Hun (N. Y.) 529 (1882) ; Beam v. Gardner . 18 
 Pa. Super. Ct. 245 ( 1901 ) ; McCreary v. Jackson Lumber Co./ 148 Ala. 247 
 (1906); Perry v. Clissold, L. R. (1907) App. Cas. 72. Possession is, how- 
 ever, the lowest form of evidence. It is merely presumptive and liable to be 
 overcome b}- any evidence showing the character of the possession, and that 
 it is not necessarily as owner. Rawley v. Brozvn, 71 N. Y. 85 (1877) ; Alexan- 
 der V. Campbell, 74 Mo. 142 (1881) ;-Cahill v. Caliill, 75 Conn. 522 (1903). The 
 legal title to real property carries with it the right of possession and this 
 is sufficient against an adverse occupant who has not remained in possession 
 a sufficient length of time to divest the legal title. Norton v. Frederick, 107 
 Minn. 36 (1909) ; Kreamer v . Voneidq . 213 Pa. 74 (1905). 
 
 "Accord: Den v. Sinnickson, 9 N. J. L. 149 (1827); Leport v. Todd, 
 32 N.J. L. 124 (1866). 
 
 The plaintiff must recover on the strength of his own title, not the weak- 
 ness of that of his adversary-. Joseph v. Bonaparte, 118 Md. 591 (1912) ; 
 Turknett v. Johnson, 66 Fla. 309 (1913) ; Center Bridge Co. v. Wheeler. 86 
 Conn. 585 (1913); James v. Hutchinson, 72, W. Va. 488 (1914). The 
 plaintiff must trace his paper title back to someone who is shown to have been 
 in possession of the locus in quo, or failing in that, he must show that his 
 grantor acquired title from the original proprietors. Troth v. Smith, 68 N. J. 
 L. 36 (1902). 
 
 Where both parties claim title from a common source, the plaintiff need 
 not go back of that source since neither party can deny the title under which 
 he claims. The inquiry is limited to which has the better title. l<iddl£_ji__ 
 MuyJ>]j^, 7 Serg. & R. (Pa.) 230 (1821) ; Clark v. T rindle, 52 Pa. 492 (1866) ; 
 Pollock v. Maison, 41 HI- 516 (1866); Jav 'vT^ichael, 82 Md. i (1896); 
 Drake v. Happ, 92 Mich. 580 (1892) ; Board v. Board, L. R. (1873), 9 Q. B. 
 48; Gaines v. New Orleans, 73 U. S. 642 (1867) ; Mining Co. v. Tavlor, 100 
 U. S. 37 (1879). 
 
 The common-law rule is that an equitable title to land will not support
 
 CAPERTON V. SCHMIDT 1 53 
 
 CAPERTON V. SCHMIDT. ^f""- 
 
 Supreme Court of California^ 1864. 
 26 Cal. 479. 
 
 The plaintiff, Caperton, brought an action against the defendant, 
 Schmidt, to recover certain real property in the City of Oakland 
 relying on a title derived from the original grantee of the Mexican 
 government. On the trial the defendant offered in evidence the 
 record of a former suit by the plaintiff against the defendant for the 
 recovery of the same land, in which it was adjudged that the de- 
 fendant was the owner of an undivided interest in the tract amount- 
 ing to forty eighty-firsts. The evidence was rejected and judgment 
 entered for the plaintiff. 
 
 Defendant appealed contending that the judgment in the former 
 suit was conclusive. Plaintiff argued that a verdict and judgment in 
 ejectment did not conclude the parties from questioning the title in 
 a subsequent contest about the same land.^^ 
 
 Sawyer, J. : From habit, and as a matter of convenience, we ordi- 
 narily speak of the action, in a general sense, as an action of eject- 
 ment. This is well enough, so long as we do not suffer ourselves to 
 be misled by confounding the action to recover real estate in use 
 
 an action of ejectment. Sin'ayzc v. Burke, 12 Peters' (U. S.) II (1838) ; 
 Peck V. Newton, 46 Barb. (N. Y.) 173 (1862); J-allette v. Bennett, 
 69 111. 632 (1873); Windsor v. Bacon, 7 Houst. (Del.) i (1884); Allen v. 
 Woods, 68 L. T. (N. S.) 143 (1893) ; Paisley v. Hobzshu, 83 Md. 325 (1896) ; 
 Russell V. Allmond, 92 Va. 484 (1896) ; Carter v. Ruddy, 166 U. S. 493 (1897) ; 
 Nalle V. Thompson, 173 Mo. 595 (1902); Mead v. Cheshrough, B. Co., 151 
 Fed. 998 (1907) ; McPall v. Kirk'patrick, 2T,(i III. 281 (1908) ; Taylor v. Russell, 
 65 W. Va. 632 (1909). In Pen nsylvania, in the absence of a court of chan- 
 cery, equitable ejectment was recognized as part of the system of administer- 
 ing equity in 'common-law forms. Hawthozu . V. Bronson^ 16 Serg. & R. (Pa.) 
 269 (1827); Ohio, &c., Co. V. Pennsylvania Co.. 222 Pa. 573 (1909). In 
 other jurisdictions, usually under tneir codes, ejectment will lie on an equit- 
 able title. State v. Johnson, 26 Wash. 668 (1901) ; Wright v. Fort, 126 N. Car. 
 615 (1909); Laughlin v. Fariss, 7 Okla. i (1897); Dodge v. Spiers, 85 Ga. 
 585 (1890) ; Pope V. Nichols, 61 Ivans. 230 (1899) ; ll'hitcliead v. Callahan, 44 
 Colo. 396 (1908). Pomeroy's Code Remedies (4th ed.), § 40, compare Sedg- 
 wick & Wait on Trial of Titles to Land, § 790. In New York a plaintiff can 
 not reform a deed through the medium of an action of ejectment. Hall v. 
 La France F. E. Co., 158 N. Y. 570 (1889). But if a deed is set up to avoid 
 his claim he may avoid it by proof of the fraud by which it was obtained. 
 Babcock v. Clark, 93 App. Div. (N. Y.) 119 (1904). While at common law 
 equitable defenses were not available in ejectment, many states permit the 
 interposition of such defens'es. Thurman v. Andcr^^on, 30 Barb. (N. Y.) 621 
 (i860). See also cases in 15 Cyc, p. 71. There is a conflict of authority as 
 to whether ejectment can be maintained on an equitable estoppel. Compare: 
 Bu chanan y. Mycr 3 Yeates (Pa.) 586 (1803) ; Tindall v. Conover, 20 N. J. L. 
 214 (i»43); Suddarth v. Kobertson, ii8 Mo. 286 (1893) ; Rutland R. Co. v. 
 Chaffee, 71 ^'t. 84 (1898) ; Sumnicrfield v. White, 54 W. Va. 311 (1903), with 
 Nix V. Collins, 65 Ga. 219 (1880); Winter v. White, 70 Md. 305 (1889); 
 Harrison v. Alexander, 135 Ala. 307 (1902) ; Amboy, City of v. Illinois C. R. 
 Co., 236 111. 236 (1908). 
 
 ''The arguments of counsel are omitted and the statement of facts is 
 abridged from the opinion of the court, a portion of which is omitted.
 
 154 ACTIONS 
 
 in this state, with the action i)f ejectment at common law, and as a 
 consequence embarrass ourselves by attempting;' to apply the rules 
 of law peculiar to the latter action to the former. Technically, and 
 substantially, we ha\e no action of ejectment. The forms constitute 
 the substance of that action at common law . True, i)ractically, the 
 possession of the land was recovered. Hut this was equally true of 
 the writ of entry, and an assize. All these were possessory actions 
 merely. And there would be just as much ])ropriety in calling our 
 action to recover the possession of land a w rit of entry, or an assize, 
 as an ejectment. The pleadings are more nearly assimilated to the 
 pleadings in a writ of entry, or an assize, than to the i)leadings in 
 an action of ejectment. In theory, the writ of entry, and the assize, 
 were actions to recover the freehold; while ejectment was an action 
 to recover the term of the tenant — a mere chattel interest. But, in 
 our state, an action is rarely brought by a tenant, either in substance 
 or form, to recover his term. Practically, the possession of the 
 land, and nothing more, was recovered at common law in each of 
 the actions named. * * * 
 
 .Says Mr. Blackstone : "As a writ of entry is a real action which 
 disi)roves the title of the tenant by showing the unlawful com- 
 mencement of his i)ossession, so an assize is a real action which 
 proves the title of the demandant merely by show'ing his or his an- 
 cestors' possession ; and these two remedies are, in all otlier respects, 
 so totally alike that a judgment or recovery in one is a bar against 
 the other; so that when a man's possession is once established by 
 either of these possessory actions, it can never be disturbed by the 
 same antagonist in any other of them."'^ 
 
 "Actions of ejectment have succeeded to those real actions 
 called possessory actions ; but an inconvenience was found to result 
 from them which did not follow from real actions, to which it has 
 been found necessary to apply a remedy. Real actions could not be 
 brought twice for the same thing; but a person might bring as many 
 ejectments as he pleased, which rendered the rights of parties sub- 
 ject to endless litigation."''' 
 
 The inconclusiveness of the judgment resulting from the form 
 of proceeding was admitted to be an inconvenience, and the neces- 
 sary remedy for it, referred to by Mr. Archibold, was, an injunction, 
 which was at length granted, after tw'o or more trials.-'" In these 
 real actions, then, we may say, with at least as much propriety as 
 the respondent's counsel says of the action of ejectment, "the object 
 is the recovery of possession; the subject-matter to be tried is the 
 right of possession as between ])laintiff and defendant; that is the 
 extent of the issue." 
 
 ''Ill Blackstone's Commentaries, 185. 
 
 '" Arclibold's Note to III Blackstone's Commentaries, 206. 
 
 '"Earl of Bath v. Slicni.'in, 4 Brown's Cases in Parliament, ^^7^, (1700) ; 
 Barefoot v. Fry, Bnrnb. 158 (1723) ; LeigJiton v. Leighton, i Peere Wms. 671 
 (1720). In CJieery_x^_R()bwson/j Yeates (Pa.) 521 (1795), after tlie fonrtli 
 verdict, the court said tliat any further proceedings would be regarded as 
 vexatious and would be stayed. There was no jurisdiction at that time to 
 grant an injunction.
 
 CAPKRTOX Z\ SCHMIDT 155 
 
 It is manifest, therefore, that the reason that one recovery in 
 ejectment at common law was not a bar to a second ejectment be- 
 tween the same parties for the same land, was not because the sub- 
 ject matter to be tried was the right of present possession; for this 
 reason wpuld apply with equal force to the actions we have just con- 
 sidered, in which a former recovery was a bar. But the reason is 
 found in the very framework and essential qualities of the action, 
 which rendered the rules of law laid down at the commencement of 
 this opinion inapplicable. The character of the proceeding is well 
 known. Originally, the party who desired to recover the possession 
 of land in this action entered upon the land, and there executed a 
 lease to some friend, and left him in actual possession, where he 
 remained till some other friend (called the casual ejector), or the 
 prior tenant, came and .turned him out. For this injury the tenant 
 brought his action against the party who ousted him. If the party 
 ousting him was a stranger, he was bound, vmder a rule of court, 
 to give notice to the tenant in possession that he had been sued and 
 should make no defense, and that unless the tenant in possession 
 should defend he would be turned out. This served as process to 
 the tenant in ])ossession, who then appeared and defended by per- 
 mission of the court, and became the real defendant in the suit. The 
 plaintiff did not allege title in his declaration. He simply alleged that 
 his lessor, on a day named, demised to him- the premises in question, 
 to hold for a specified term then next ensuing; that by virtue of said 
 demise he entered into said premises and became and was thereof 
 possessed for the said term ; that being so possessed the defendant, at 
 a time specified, and before the expiration of his term, with force and 
 arms, entered and ejected him. Subsequently a change was made by 
 the courts, after which the plaintiff and casual ejector were fictitious 
 persons. The tenant in possession, as a condition of being allowed 
 to appear and defend, was required to enter into what was called the 
 consent rule, whereby he agreed to confess the lease, entry and ouster, 
 and to plead not guilty.-^ This obviated the necessity of proof on 
 the points admitted, and left the parties at the trial at that stage 
 of the proceedings in which they would have been after proving 
 
 "^ This practice was established in the time of Lord Chief Justice Rolle, 
 who presided in the court of the Upper Bench during the Protectorate. Style 
 
 368 (1652) ; V. Daz'ics, i Keble 28 (1661). The practice was reprobated 
 
 because it was thought that it provided no responsibility for costs in case the 
 defendant succeeded. But this objection was obviated by making it part of 
 the consent rule that the lessor of the plaintiff would pay costs. Chitty's 
 note to Til Blackstone's Commentaries, 203 ; Den v. Wilson, 5 N. J. L. 680(1819) . 
 See also / L^lso n \._C j Ul'pl^i'll_ . i l^:il]. (Pa.) 126 (1785) ; Jackson v. Dciuiiston. 
 4 Johns. ( NTTTTJi I (1B09 ) ; Hillard v. Connelly, 7 Ga. 172 (184Q) ; flitd- 
 dlcston V. Hughletl, i Humph. (Tenn.) 64 (1839); Atzvell v. McLiirc, 49 
 N. Car. 371 (1857). The form of summons prescribed by the Pennsylvania 
 Act of March 21, 1806, 4 Smith's Laws of Pennsylvania, 326, § 12, dispensed 
 with fictitious parties. In New Jersey the consent rule and all fictions in 
 ejectment were abolished in 1855, General Statutes of New Jersey, p. 1282. 
 The common-law forms survive in a few jurisdictions. Doe v. McCullonqh, 
 155 Ala. 246 (1908); Doe dent. Dockstnder v. Roe, 4 Pennew. (Del.) 398 
 (1903) ; Nevin v. Dcsharoon, 6 Pennew. (Del.) 278 (1907), at p. 282; Doe v 
 7?or. 26 Del. 78 (1911).
 
 156 ACTIONS 
 
 lease, entry and ouster. But the form -of the declaration continued 
 to be the same. I'pon protif of tiic facts alleged, as the action orig- 
 inally stood, or upon their admission under the modified forms of 
 proceeding, without proving any title in the landlord, if the defend- 
 ant should introduce no testimony whatever, the plaintijT would 
 I>robably be entitled to recover. He certainly would upon the face of 
 the record, whatever the practice might have been under the almost 
 unlimited control exercised over the action by the judge who intro- 
 duced it, and his successors. And he certainly would at this day 
 in this state, on such a complaint, and j)roof of the facts alleged, 
 with no counter proof.-- But it would not be safe for the plaintiff 
 to rest on such proof or admissions; for the defendant would un- 
 doubtedly introduce testimony to rebut his prima facie case ; hence 
 it was necessary for the plaintiff to show title in his lessor, notwith- 
 standing none was directly alleged ; and the title, tliough not directly 
 in issue, thus became the real question and the only question liti- 
 gated. But, as there was no averment of title, and no issue directly 
 taken upon it, the title was only collaterally or incidentally litigated. 
 It became "a fact in controversy," as distinct from "a fact in issue." 
 ■Mr. Blackstone, after stating the mode of proceeding says : "This 
 is the regular method of bringing an action of ejectment, in which 
 the title of the lessor comes collaterally and incidentally before the 
 court in order to show the injury done to the lessee by this ouster." 
 * * * "Such is the modern way of obliquely bringing in question 
 the title to lands and tenements, in order to try it in this collateral 
 manner."-^ But we have seen, that the rule in all cases requires that 
 the matter tried must be directly, and not merely collaterally in issue, 
 in order that the judgment shall be a bar. And in an action of eject- 
 ment at common law the title is not directly in issue ; hence the judg- 
 ment under the rule was not a bar, nor could the determination of 
 the title be used as a matter of estoppel. 
 
 "At the common-law judgment for default of appearance or plea was 
 entered against the casual ejector not the tenant. Doc v. Roe, i Dowl. & 
 Ry. 514 (1822) ; Gardiner v. Murray, 4 Yeates (Pa.) 560 (1808) ; Jackson v. 
 Visclier, 2 Johns. 7 •^- V.) lOO (l«oo); IVilliams v. Doc, i Sm. & Mar. (Miss.) 
 559 (1844) ; Cttslm-a v. Cushzva, g Gill (Md.) 242 (1850). Now judgment by 
 defauh may be obtained against tlie real party by complying with the par- 
 ticular statutory- prerequisites of the jurisdiction. Bolard v. M asmi. 66 Pa. 
 138 (1870) ; l^orcns v. Berry , 207 Pa. 296 (1904) ; Sheridan v. Andrews, 49 
 N. Y. 478 (1872) ; Svntlison v. Briggs, 33 Gratt. (Va.) 180 (1880). If the 
 case goes to trial and the defendant gives no evidence, but relies on the weak- 
 ness of plaintiff's title, the court may direct a verdict. Fous t v. Ros s, i Watts 
 & S. (Pa.) 501 (1841) ; Anderson v. McCorr.nck, 129 111. 308 (1889). A judg- 
 ment in ejectment against a tenant is not binding upon the landlord, as to the 
 title, if he was not made a party to the action and did not appear therein. 
 Eldrcd v. Johnson, 75 Ark. i (1905). After judgment for the plaintiff, whether 
 against casual ejector or tenant, a w-rit of habere facias posscssiono'i issued 
 at the common law. Under the modern English practice, where one is sued 
 who is not in possession and judgment obtained by a default, an actual 
 tenant without notice, claiming the land through a different source, who is 
 ejected, may have the judgment and subsequent proceedings set aside upon 
 electing to appear and defend. Minet v. Johnson, 63 L. T. (N. S.) 507 (1890). 
 
 ^III Blackstone's Commentaries, pp. 202, 205; Aflin v. Parkin, 2 Burr. 
 665 (1758).
 
 CAPERTOX r. SCHMIDT 157 
 
 "In ejectment the unsuccessful party may re-try the same ques- 
 tion (that is the title), as often as he pleases without leave of the 
 court, for by making a fresh demise to another nominal character it 
 becomes the action of a new plaintiff upon another right." * * * 
 
 This is the reason given in the books. By a new demise a dif- 
 ferent term is created, a new possession and ouster alleged, and the 
 matters directly alleged are different from those directly alleged in 
 the former suit. The recovery alone, therefore, could not be a bar, 
 as a different term was recovered. And the determination of the title 
 was not available as matter of estoppel, because it was not directly 
 in issue. And thus the title— the "fact in controversy," bift not 
 "directly in issue" — might be again and again "collaterally and in- 
 cidentally" tried. The judgment is not conclusive upon the title till 
 it has been "directly" put in issue, and determined.-* * * * 
 
 In several of the states, as in New York and Illinois, there are 
 special statutes regulating actions for the recovery of real estate.--'' 
 In such cases, the forms of the common-law action of ejectment are 
 generally abolished, and another form substituted, and — what would 
 naturally be expected, as a consequence of the change of the form in 
 the action — the effect of the judgment is also modified, regulated and 
 prescribed. Sometimes one new trial in the same action is granted, 
 as a matter of right, and another upon a proper showing, in the dis- 
 cretion of the judge. But when finally determined in that action, it 
 is made conclusive. The statutory form of a declaration in New York 
 does not even allege title. It only alleges a possession by plaintiff 
 and an ouster by defendant. Yet the judgment is made conclusive. 
 A second trial, if any be had, must be in the same action.-*' * * * 
 
 If a party declares upon a seisin in fee, and tlaus puts his title 
 in issue, and chooses to rely upon a prior possession merely, or does 
 not choose to put in all his evidence of title, or is unable from any 
 accident to get it in, he is in no worse position than many other 
 
 -'Jackson V. Dicffendorf, 3 Tohns. (N. Y.) 268 (1808) ; Baileyjv^ Fair- 
 play^ Binn. (Pa.) 450 (1814) ; Haii'kins v. Hayes, 3 Harr. (061X489 (1842) ; 
 Kwimel V. Bcnna, 70 Mo. 52 (1879). The modern tendency is strongly m 
 favor of holding the judgment in ejectment conclusive, as in other actions, 
 when the issue is made in the names of the real parties and the titles and 
 defenses are the same as in the first suit. Miles v. Caldzvell, 69 U. S. 35 
 (1864); Sturdv V. Jackson, 71 U. S. 174 (1866); Barger v. Jlobbs, 67 111. 
 592 (1873) ; Doyle v. Hallam, 21 Minn. 515 (1875) ; Freeman on Judgments 
 (4th ed.), § 299. 
 
 "• Starr & Curtis's Ann. Stat, of 111., Vol. 2, p. 1607, et scq.; Aetna L. Ins. 
 Co. V. Hoppin, 255 111. 115 (1912). See also California Code of Civ. Proc, 
 § 738, et scq.; General Code of Ohio (1910), § 11901, et seq. The provision 
 of the N.Y. Code Civ. Proc, § 1525, for a new trial as of right within three 
 years is repealed by the Act of 191 1, ch. 509, 2 Session Laws 191 1, p. 1 166. 
 K, In Pennsylvania the Act of April 13, 1807, 4 Smith's Laws, 476, § 4, 
 provided that two verdicts in succession for the same party, for the same 
 land and on the same title should he a bar. l')rc xcl v. Man . 2 Pa. 267 (1845) ; 
 Tr caster v. Flcishcr. 7 W. & S. (Pa.) 137 (1S44). The Act of May 8, 1901, 
 P. L. 142, makes one verdict and judgment conclusive. Necld Y.^ Cunning^ 
 hain, 216 Pa. 523 (1907) ; Lr^ ^/^v. Lynch. 221 Pa. 423 (1908T 
 
 ■'Evans v. Millard, 16 N7"^~5i9(i858r; Harris v. IVaite, 54 How. Pr. (N. 
 Y.) 113 (1877) ; Set, "Ice v. Sctzke, 121 111. 30 (1887) ; Cook County v. Calumet, 
 etc., Co., 131 111. 505 (1890).
 
 15i^ ACTIONS 
 
 l)anics, wlio for any reason fail in iK'isonal action to get in suffi- 
 cient, or all their evidence. I'liulcnt counsel, where, from any un- 
 forscen accident they fail to make as strong a case as the facts and 
 evidence attainable should enable them to do, and they are not 
 satislied of the sufficiency of tlieir proofs, will sul)mit to a nonsuit, 
 or in a proper case, with the permission of the court, withdraw a 
 juror and liegin again. If they do not, they can not com])lain that 
 the iiulgnnent against them in the action should be followed by its 
 legitimate consequences. 
 
 In order that we may not be misapjjrehended, we will add, that 
 the e'stoppel of a verdict and judgment is necessarily limited to the 
 rights of the ])arties as they exist at the time when such verdict and 
 judgment are rendered, and can not i^reclude either party from 
 showing that their rights have been varied or extinguished at a sub- 
 sequent period. No injury, therefore, can result on that ground. 
 
 In this case the record offered in evidence, and excluded by the 
 court, shows, that in the former suit, the title was distinctly put in 
 issue and determined (the possession of an undivided half was 
 admitted by the answer) ; that the undivided forty-one eighty-first 
 parts Avas found and adjudged to be in the ])laintiffs — and forty 
 eighty-first parts in the defendant; that the same title, and the same 
 ouster, were relied on in this action — for the plaintiff's proved that 
 the defendant's possession extended as far back as 1857 before the 
 conunencement of the former action, and no evidence of title ac- 
 {[uired since the former suit was offered. The court, therefore, 
 erred in refusing to admit the record in e\idence, and the judgment 
 must be rexerscd.-' 
 
 ■'At tlic early law ejectment was an action for the recovery of damages, 
 hut when the proceedings became fictitious and the parties nominal, the dam- 
 apes became nominal also. Hence for the injury due to loss of possession a 
 further remedy became necessary and this was found in an action of tres- 
 pass vi ct annis, generally termed an action for mesne profits. Sedgwick on 
 Damages (8th ed"), ch. 30; Goodtitle v. Tombs, 3 Wils. C. P. 118 (1770); 
 GUI v. Patten, i Cranch (U. S.) 465 (1807) ; Davis v. Doc dem. Delpit,2^ Miss. 
 445 (1853) ; Oshonrn v. Osbouru, 11 S. & R. (Pa.) 55 (1824). "The action 
 for mesne profits difiFers from an'action for use and occupation, in this, that 
 the latter is founded upon a promise, express or implied, while the former 
 springs from a trespass, an entrj- vi et annis upon premises, and a tortious 
 holding." Thorn t^son v. Bon'cr, 60 Barb. 463 (1871) ; Avcnt v. Hord, 3 Head 
 (Tenn.) 458 (1859) : Brandmeicr v. Pond Creek C o..22q Pa. 280 (1910). In New 
 Jersey and Pennsylvania a recovery of ))iesne profits was permitted in the ac- 
 tion of ejectment provided notice of tlie claim had previously been given. Den 
 v. Cliiihb. I X. T. L. 466 (i7gs) ; Kline v. IVilliams, 60 N. J. L. 17 (1903); 
 fioyd v. Cowan , 4 Dall. (Pa.) 138 (1794) ; Cook v. Niclwlax, 2 W. & S. (Pa.) 
 27 (1841). And now, under modern statutes and codes, the plaintiff is usually 
 allowed to unite in the same complaint claifns to recover real property and 
 for damages for the withholding thereof. Vandervorl v. Gould, 36 N. Y. 639 
 (1867) ; Wallace v. Bcrdell, loi N. Y. 13 (1885) ; Provident I. S. v. Burnliam, 
 128 Mass. 458 (1880) ; Lippett v. Kelly, 46 Vt. 516 (1874) ; Methodist Church 
 V. Xorthern P. R. Co., 78 Wis. 131 (1890) ; Scott v. Colson, 156 Ala. 450 
 (1908) ; Cape Jirardean, etc., Co. v. .9/. Louis, etc., Co., 222 Mo. 461 (1909) ; 
 Whitehead v. Callahan, 44 Colo. 396 (1908). Otherwise in R. I., Rinfret v. 
 Morrisey, 20 R. I. 223 (1908). 
 
 In a subsef|uent action for the recovery of mesne profits the record of 
 the judgment in ejectment is, between the parties, conclusive as to plain-
 
 BUTLER r. FRONTIER TEL. CO. I59 
 
 BUTLER z: FRONTIER TELEPHONE COMPANY. 
 
 Court oi" Appeals of New York, 1906. 
 186 A^ Y. 486. 
 
 ^ 
 
 Appeal from a judgment of the Aj)])ellate Division of the Su- 
 ])reme Court in tlie fourth judicial department, entered December 
 6, 1905, affirming a judgment in favor of plaintiff entered upon a 
 decision of the court at a trial term without a jury. 
 
 This is an action of ejectment, which was tried by consent be- 
 fore the court without a jury. The trial judge found as facts that 
 "the defendant on or about January i, 1903, without the consent of 
 the plaintiff and without lawful authority, entered upon" his prem- 
 ises in the city of Buffalo "and stretched a wire over and across 
 the same in the manner described in the complaint and maintained 
 said wire upon said premises until January 10, 1903, when the 
 defendant removed the said wire entirely from plaintiff's said 
 premises." 
 
 According to the allegations of the complaint the wire was 
 strung "about thirty feet from the surface of the ground on the 
 easterly side and slanting to about twenty feet on the westerly side," 
 reached "across the entire width of said premises." 
 
 The trial judge further found that "the plaintiff has been in pos- 
 session of the premises described in the complaint at all times men- 
 tioned therein and since, except that portion thereof occupied by the 
 defendant with said wire during the period specified." The damages 
 sustained by the plaintiff were assessed at six cents for "the with- 
 holding by the defendant of that portion of the premises occupied 
 Ijy said w4re for the period above specified." There was neither alle- 
 gation nor evidence that the wire was supported by any structure 
 standing upon the plaintiff's lot. The action was commenced on the 
 5th of January, 1903. 
 
 The court found as a conclusion of law that the plaintiff", as the 
 owner in fee of the ])remises in question, "was entitled at the 
 commencement of this action to have said wire removed from said 
 j)remises, and is entitled to judgment against the defendant so de- 
 claring, and for six cents damages for withholding said property 
 and for the costs of this action." 
 
 The judgment entered accordingly was affirmed on appeal to the 
 appellate division by a divided vote, and the defendant now comes 
 here.-^ 
 
 tiff's title and right of possession between demise and execution on the judg- 
 ment. West V. Hughes, i H. & J. (Md.) 574 (1805) ; Benson v. Matsdorf, 2 
 Johns. (N. Y.) 369 (1807) ; Buntin v. Duchanc, i Blackf. (Ind.) 56 (1820) ; 
 Al'Creadyjy. Guardiaiisof Poor, 9 S. & R. (Pa.) 04 (1822) ; Chirac v. Rein- 
 VcTier, II Wlieat. (UrST) 280 (!H26) ; Den v. McShane, 13 N. J. L. 35 (1831). 
 But it is not conchisive as to plaintiff's rights prior to the commencement 
 of the suit. Avent v, hlord, 3 Head (Tenn.) 458 (1859) ; Kille v. Ege, 82 Pa. 
 102 (1876) ; Miller v. Henrx, 84 Pa. 33 (1877). ' 
 
 ""* The arguments of counsel are omitted. The decision affirms 109 App. 
 Div. (N. Y.) 217 (1905).
 
 l6o ACTIONS 
 
 A'anx. j.: The (juostion presented by llils ai>i)i-'al is whether 
 ciectiiicnt will lie when the soil is not touched, hut [)art of the space 
 jr f C^v "fcmsT^oVe flic soil is occupied by a telephone wire unlawfully 
 struni; by the defendant across the ])laintiflf's i)remises? This cjues- 
 tion has never been ])assed ui)on by the Court of Appeals nor by the 
 Sujirenie Court, except in the decision now before us for review. 
 Questions similar but not identical, as they related to overhanging 
 eaves, projecting cornices or leaning walls, were decided in favor of 
 the ilefendant in .liken v. Benedict (39 Barb. 400), and Vrooman 
 V. Jackson (6 Hun 326), and in favor of the plaintiff in SJierry v. 
 Freeking (4 Duer. 452). In Leprell v. Kleinsclnnidt (112 N. Y. 
 364) the question as to the effect of projecting eaves was alluded to 
 but not decided, because there was in that case "a physical entry by 
 the defendant upon the land of the plaintiffs and an unlawful deten- 
 tion of its possession from them." 
 
 The precise c]uestion before us does not a]')pear to have been 
 passed upon in any other state, and u])on the cognate question re- 
 lating to projecting cornices and the like, the authorities are divided. 
 Some hold that ejectment will lie because there is an actual ouster 
 or disseisin. (Murphy v. Bolger, 60 Vt. 723; McCourt v. Eckstein, 
 22 Wis. 153; Stedman v. Smith, 92 Eng. C. L. i.)-^ Others hold 
 that there is not such a disturbance of possession as to sustain an 
 action in that form. (Norwalk H. &- L. Co. v. Vernam, 75 Conn. 
 662; Rasch V. North, 99 Wis. 285).-'" The case last cited does not 
 overrule the earlier case in Wisconsin, but proceeds upon the the- 
 ory that the aerial space was occupied by the projecting eaves of 
 both parties, one above the other, on opposite sides of the boundary 
 line. Some of the cases hold that a court of equity may order the 
 removal of a projection without deciding whether ejectment will 
 lie or not. Thus, in Wilmarth v. Woodcock (58 Mich. 482, 485) it 
 was decided that equity would require the removal of a projecting 
 comice because "no remedy at law^ is adequate, owing to the un- 
 certainty of the measure of damages, to afford complete compensa- 
 tion." But, as the learned court continued: "No person can be 
 permitted to reach out and apy)ropriate the property of another and 
 secure to himself the adverse enjoyment and use thereof, which, in 
 a few years, will ripen into an absolute ownership by adverse posses- 
 sion."' (See, also, Plummer v. Gloversville Electric Co., 20 App. 
 Div. 527.) 
 
 =" So also in Joluisou v. Mitmcsoia Tribune Co., Qi Minn. 476 (1904); 
 Oiithivaite v. Gunn, 180 Mich. 66 (iqM)- Where one erects upon his 
 own land a building and projects the foundation beyond the line upon ad- 
 joining land, the owner of such land may maintain ejectment. Wachstein v. 
 Christopher, 12S Ga. 917 (1907). But not if he uses the foundation himself. 
 Zander v. Valentine B. B. Co., 95 Wis. 162 (1897). 
 
 ^"Harrington v. Port Huron, 86 Mich. 46 (1891), a sewer constructed 
 through plaintiff's land. As to wires over a street, see IVadsivorth Board of 
 Works V. United Telephone Co., L. R. (1884), 13 Q. B. Div. 904; Telegraph 
 Co. x^WJlt^iVhU^. (Pa.) (1851) ; Milhille Traction Co. v. Goodivin, 53 N. J. 
 T^qr44Brn^). Ejectment was held not to lie for backing water on adjoin- 
 ing land. Ezzard v. Tindley G. M. Co., 74 Ga. 520 (1885). Contra: Reynolds 
 V. Munch, 100 Minn. 114 (1907).
 
 BUTLER v. FRONTIER TEL. CO. l6l 
 
 While some of the cases may be harmonized by resort to the 
 distinction between "disseisins in spite of the owner, and disseisins 
 at his election," the main question is open, and must be determined 
 upon principle. 
 
 The defendant concedes that the plaintiff has a remedy, but in- j 
 sists that il is an action for trespass, or to abate a nuisance, while the/ 
 plaintiff claims that ejectment is a proper remedy and one of especial/ 
 value as it entitles him, if he needs it, to a second trial as a matter 
 of right and to costs, even if he recovers less than fifty dollars dam- 
 ages. (Code Civ. Proc. §§ 1525'^^ 3228.) 
 
 An action of ejectment, according to the code, is "an action to 
 recover the immediate possession of real property." (Code Civ. Pro. 
 § 3343, sub. 20.) While the statute to some extent regulates the pro- 
 cedure, it did not create the action and for the principles which gov- 
 ern it resort must be had to the common law^. (Code Civ. Pro. 
 §§ 1496 to 1532; Real I'roperty Law, §§ i, 218; 2 R. S. 303.) 
 
 Without entering into the somewhat involved and perplexing 
 learning upon the subject, it is sufficient to say that, as all the author- 
 ities agree, the plaintiff must show that he was formely in possession, 
 that he was ousted or deprived of possession and that he has a right 
 to re-enter and take possession. It is admitted by the pleadings that 
 when the wire was put up the plaintiff v^^as in possession of the entire 
 premises and that he was entitled to the immediate possession thereof 
 as owner when the action was commenced. The serious question is 
 whether he was deprived of possession to the extent necessary to 
 authorize ejectment. While ouster is essential to the maintenance of 
 the action, it need not be entire or absolute, for it is sufficient if the 
 defendant is in partial possession of the premises while the plaintiff 
 is in possession of the remainder. (Sitllk'on v. Legraves, 2 Str. Cases, 
 695 ; Doe V. Burt, i T. R. 701 ; Lady Dacre's Case, i Lev. 58 ; Rozvan 
 V. Kelsey, 18 Barb. 484; Otis v. Smith, 26 Mass. 293; Gilliam v. 
 Bird, 8 Iredell [Law], 280; Reynolds v. Cook, 83 Va. 817; Mc- 
 Dozvell v. King. 4 Dana [Ky.], 67; Adams on Ejectment, 27; New- 
 ell on Ejectment, 38; Warvelle on Ejectment, 22). Mines, quarries, 
 mineral oil and an upy)er room in a house are familiar examples.'- 
 Is the unauthorized stringing of a wire by one person over the land 
 of another an ouster from possession to the extent that the wire 
 occupies space above the surface as claimed by the plaintiff, or a 
 
 "Repealed bv the Act of 191 1, ch. 509, 2 Session Laws 191 1, p. 1166. 
 
 ''- White V. ll'hite, 16 N. J. L. 202 (1837): Asheville D. S. T. v. Astau, 
 92 N. Car. 578 (1885) ; Brady v. Kreuger, 8 S. Dak. 464 (i8g6) ; Condict v. 
 firie R. Co., 80 N. J. Eq. 519 (1912). Compare: Thorn v. Witson, no Ind. 
 325 (1886). As to fixtures, compare: Jackson v. May, 16 Johns. (N. Y.) 
 184 (1819), with Stancel v. Calvert, 60 N. Car. 104 (1863); Hill v. Hill, 
 43 Pa. 521 (1862). Ejectment may Ije maintained for the recovery of a mine. 
 IVhiltinijliam v. Andrcivs, 4 Mod. Rep 143 (1693) ; Grot:: v. Lehigh & IV. C. 
 Co., I Luzerne Lepal Reg. 53; Kirk v. Matticr, 140 Mo. 23 (1897). As to oil 
 wells, compare: Karns v. Tanner. 66 Pa. 297 (1870), with Utiioii. Petroleum 
 Co. V. BJ ij2MLj. \ C-"~'r 7 - y'='- ^7^ ('1^72) ; Priddy v. Thompson, 204 Fed. 955 
 '(1913). Ejectment will lie upon a right to quarry and remove stone. Rey- 
 nolds V. Cook, 83 Va. 817 (1887). Contra: Brozam v. Chadzvick, 7 Ir. C. L. loi 
 (1857). 
 
 II — Civ. Proc.
 
 l62 ACTIONS 
 
 mere trespass or interference with a right incidental to enjoyment as 
 claimed bv the defendant? Was the plaintiff in the nndisturbed pos- 
 session of his land when a portion of the si)ace above it was occupied 
 by the jiermancnt structure of the defendant, however small? Was 
 the space occupied by the wire part of the land in the eye of the law ? 
 \Vhat is "real property?" What does the term include so far as 
 the action of ejectment is concerned? The answer to these ques- 
 tions is found in the ancient principle of law : Cujus est solum, ejus 
 est usque ad coeluni et ad inferos. The surface of the ground is a 
 guide, but not the full measure, for within reasonable limitations 
 land includes not only the surface but also the space above and the 
 part beneath. (Co. Litt. 4a; 2 Blackstone's Comm. 18; 3 Kent's 
 Com. [14th ed.] *40i.) "Usque ad caelum" is the upper boundary, 
 and W'hile this may not be taken too literally, there is no limitation 
 witliin tlie bounds of any structure yet erected by man. So far as 
 tlie case before us is concerned, the plaintifif as the owner of the soil 
 owned upward to an indefinite extent. He owned the space occu- 
 pied by the wire and had the right to the exclusive possession of 
 that space which was not personal property, but a part of his land. 
 According to fundamental principles and within the limitation men- 
 tioned space above land is real estate the same as the land itself. The 
 law regards the empty space as if it were a solid, insej^arable from 
 the soil, and protects it from hostile occupation accordingly. 
 
 If the w-ire had touched the surface of the land in permanent and 
 exclusive occupation, it is conceded that the plaintiff would have 
 been dispossed pro tanto. A part of his premises would not have 
 been in his possession, but in the possession of another. The extent 
 of the disseisin, however, does not control, for an owner is entitled 
 to the absolute and undisturbed possession of every part of his 
 premises, including the space above, as much as a mine beneath. If 
 the wire had been a huge cable, several inches thick and but a foot 
 above the ground, there would have been a difference in degree, but 
 not in principle. Expand the wire into a beam supported by posts 
 standing upon abutting lots without touching the surface of plain- 
 tiff's land, and the difference would still be one of degree only. En- 
 large the beam into a bridge, and yet space only would be occupied. 
 Erect a house upon the bridge, and the air above the surface of the 
 land would alone be disturbed. Where along the line of these illus- 
 trations would dispossession begin? What rule has the law to 
 measure it by? How much of the space above the plaintiff's land 
 must be subject to the dominion of the defendant in order to 
 effect a dispossession? To what extent may the owner be dispos- 
 sessed and kept out of his own before there is a privation of seisin? 
 Unless the principle of usque ad coeliim is abandoned any jphysical, 
 exclusive and permanent occupation of space above land is an occu- 
 pation of the land itself and a diseisin of the owner to that extent. 
 
 The authorities, both ancient and modern, with some exceptions 
 not now important, agree that the ability of the sheriff to deliver 
 possession is a test of the right to maintain an action of ejectment. 
 (Jackson V. Buel, 9 Johns, 298; IVoodhull v. Rosenthal, 61 N. Y. 
 382, 389; Patch V. Keeler, 27 Vt. 252, 255; Warvelle on Ejectment,
 
 BUTLER V. FRONTIER TEL. CO. 163 
 
 34; Crabb on Real Property, 710; Butler's Nisi Prius, 99.) "The 
 rule now is, that when the property is tangible and an entry can be 
 made and possession be delivered to the sheriff, this action will lie." 
 (^Nichols V. Lewis, 15 Conn. 137.) The defendant insists that the 
 sheriff can not give possession of space any more than he can deliver 
 water in a running stream or "air whirled by the north wind." 
 When the space over land is unoccupied there is no occasion for 
 delivery, because there is nothing to exclude the owner from posses- 
 sion. The sheriff", however, can deliver occupied space by remov- 
 ing the occupying structure. All that he does to deliver possession 
 of the surface of land, or of a mine under the surface, is to remove 
 either persons or things which keep the owner out. He does not 
 carry the plaintiff upon the land and thus put him in possession, but 
 he simply removes obstructions which theretofore had prevented 
 him from entering. So, in this case, that officer can deliver posses- 
 sion by removing the wire, the same as he would if one end hap- 
 pened to be embedded in the soil, when no question as to the right 
 to bring ejectment could arise. Where there is a visible and tangible 
 structure by which possession is withheld to the extent of the space 
 occupied thereby ejectment will lie, because there is a disseisin 
 measured by the size of the obstruction, and the sheriff can physically 
 remove the structure and thereby restore the owner to possession. 
 
 The smallness of the wire in question does not affect the con- 
 trolling principle, for it was large enough to prevent the plaintiff 
 from building to a reasonable height upon his lot. The prompt re- 
 moval of the wire after the suit was brought could not defeat the 
 action because the rights of the parties to an action at law are gov- 
 erned by the facts as they existed when it was commenced. {Wis- 
 ner\. Ocumpaiigli, 71 N. Y. 113.) 
 
 The judgment should be affirmed, with costs. ^^ 
 
 '^ Compare Kraiis v. Birnbanm, 200 N. Y. 130 (1910) where the removal 
 of boards from a fence on the disputed ground was held not an ouster. 
 
 Ejectment will not lie for mere incorporeal hereditaments since there 
 can be no seizin thereof, nor ouster, nor can the sheriff deliver possession 
 on execution. Den v. Craig, 15 N. J. L. 191 (1836) ; Black v . JjephliiMc , 2 
 Yeates (Pa.) 331 (1798) ; Child v. Chappell, 9 N. Y. 246X1^53). A grant of 
 the exchisive right of interment in a cemetery lot subject to certain regula- 
 tions, is not an interest in land that will support ejectment. Hancock v. Mc- 
 Avoy,_ iSi Pa. 460 (1892). Ejectment will not lie for the interruption~or"5 
 mere easement or license. Doc v. Cozvley, i Car. & P. 123 /1823) ; Wood v. 
 Truckee T. Co., 24 Cal. 474 (1864) ; Provident I. S. v. Bnrnham, 128 Mass. 
 458 (1880) ; Croker v. Fothcrgill, 2 B. & Aid. 652 (1819) ; Harlow v. Lake 
 Superior T. Co., 36 Mich. 105 (1877) ; Conover v. Atlantic S. Co., 70 N. J. L. 
 315, 57 Atl. 897 (1904); Coquille M. Co. v. Johnson, 52 Ore. 547 (1910) ; 
 Chism v. Smith, 138 App. Div. (N. Y.) 715 (1910) ; Menominee R. L. Co. v. 
 Seidl, 149 Wis. 316 (1912). But otherwise where a right of entry exists and 
 the interest is tangible so that possession can be delivered. Winona v. Huff, 
 II Minn. 119 (1866); Mahon v. San Rafael T. Co., 49 Cal. 269 (1874); 
 Southern Pacific Co. v. Burr, 86 Cal. 279 (1890).
 
 ? 
 
 l6| ACTIONS 
 
 (b) Forcible Entry and Detainer. 
 
 CARL SCI I WINN v. RANDOLPH PERKINS. 
 
 Court of L^kkoks .xnu Aitkai-s oi- Ni:\v Jersi-iv, 1910. 
 
 70 .V. y, /,. 513."' 
 
 Sw Avzi:, J.: This was an action of forcible entry and detainer 
 by Schwinn against Perkins in tlic I'irst District Court of Jersey 
 City. Prior to August, 1908, Schwinn was in possession of the 
 main front room on the first floor of a house in Jersey City under a 
 lease from Perkins ending November i, 1908. There was evidence 
 that on September 3, 1908, during the term, one Willits was in the 
 room in the employ of the plaintiff as caretaker and watchman. The 
 ]ilaintiff had there conducted a tailoring business, but about August 
 i6tli or i8th had moved to New York all his stock in piece goods 
 and most of the things necessary to do business. He testified, how- 
 ever, that he had left part of his property used for trying on pur- 
 poses in the premises ; that he also had there a complete set of fall 
 samples ; that he did not take down his sign, but had made arrange- 
 ments to do so, intending to use it in New York. On September 3d 
 Willits was forcibly ejected from the premises by the defendant. 
 The evidence of force was sufficient to bring the case within the 
 sfatute relating to forcible entries and detainers. The defendant 
 sought to prove that he had had possession from the twenty-first day 
 of August under an agreement for surrender of the term between 
 him and Schwinn, and he offered evidence that the plaintiff had con- 
 tracted to have his sign taken down ; that another person was in 
 possession of the premises ; and that his own representatives had 
 been in possession of the i)remises in August. In short, he offered 
 evidence, of a parol surrender of the lease_exec^uted Jby afi actual 
 possession. MWler v. Denins, 68 N. J. L. 320, p. 323, 53 Atl. 394. 
 Tliis" evidence was rejected, and the trial judge directed a verdict 
 in favor of the plaintiff. Judgment was entered that Schwinn, the 
 I)laintiff, be restored to the possession of the premises specified in 
 his complaint, and recover treble costs. This judgment was reversed 
 by the Supreme Court. 
 
 The only c|westion we think it necessary to consider is whether a 
 parol surrender executed by an actual possession would constitute a 
 defense in an action of forcible entry and detainer. The peculiari- 
 tlesTof this action have been frequently dwelt ujion by the courts, 
 and the difficulties have arisen out of the seeming injustice of a 
 judgment restoring the possession of property to one not rightfully 
 entitled thereto.''' The difficulties are well illustrated by the pro- 
 
 " Affirmins,' 77 X. J. L. 402 (1909). 
 
 ""Wliile forcible entry and detainer as a civil proceeding is based upon 
 and has by modern legislation been evolved from the English forcible entry 
 and detainer which was a criminal proceeding merely, yet the present stat- 
 utes often contain such modifications and additions as to make it impossible to 
 state any rules or principles which are always applicable. Generally speaking,
 
 SCinVINN V. PERKINS 165 
 
 longed litigation in Newton v. Harland, i, Manning and Granger, 
 644. In Harvey v. Brydges, 14 Meeson & Welsby, 437, Baron 
 Parke said: "If it were necessary to decide it, I should have no 
 difficulty in saying that where a breach of the peace is committed by 
 a freeholder, who, in order to get into possession of his land, assails 
 a person wrongfully holding possession of it against his will, al- 
 though the freeholder may be responsible to the public in the shape 
 of an indictment for a forcible entry, he is not liable to the other 
 party. I can not see how it is possible to doubt that it is a perfectly 
 good justification to say that the plaintiff was in possession of the 
 land against the will of the defendant, who was owner, and that he 
 entered upon it accordingly ; even though, in so doing, a breach of 
 the peace was committed." It is evident that his view was that in 
 such a case the only remedy was by an indictment for the forcible 
 entry and detainer, and that a civil action to redress the private 
 wrong would not lie. These cases were, however, actions of tres- 
 pass, did not necessarily involve the construction of the forcible 
 entry and detainer act, and are not inconsistent with the view that 
 one 'who is in possession and wrongfully evicted by force may be 
 entitled to be restored to the possession in the method prescribed by 
 the act. Beddell v. Maitland, 17 Ch. Div. 174, was a case of forcible 
 entry, and Mr. Justice Fry distinctly held that there was no civil 
 remedy for the forcible entry alone, unaccompanied by some inde- 
 pendent wrong. Our Supreme Court, however, has held that tres- 
 pass can be maintained. Thiel v. BulVs Ferry Land Co., 58 N. J. L. 
 212, 33 Atl. 281. Mr. Pollock says (Pollock on Torts, 312) : "The 
 correct view seems to be that the possession of a rightful owner 
 gained by forcible entry is lawful as between the parties, but he 
 shall be punished for the breach of the peace by losing it, besides 
 making a fine to the King." The opinion as to the right of the party 
 who is forcibly dispossessed to bring an action of trespass, expressed 
 by the learned chief justice in Thiel v. Bull's Ferry Land Co., was 
 referred to, but neither approved nor disapproved, by this court in 
 Mershon v. WiUiams, 62 N. J. L. 779, at pp. 784, 785, 42 Atl. 778. 
 It is not involved in the present case. We think that under the stat- 
 ute, which forbids an inquiry info the estate or merits of the title, 
 the plaintiff, even though his possession may be wrongful, is entitled 
 to recover possession by this statutory action, v/here he is ejected 
 by violence, whether he is or is not entitled to sue in trespass for 
 damages. It is essential, however, to the maintenance of the action 
 that he should have been in peaceable possession. The old forms 
 of indictment for forcible entry and detainer contained that allega- 
 
 forcible entry and detainer is a remedy for the protection of the actual posses- 
 sion of realtv, wliether rightful or wrongful, against forcible invasion, its ob- 
 jectbeing to prevent disturbances of the public peace, and to forbid any per^ 
 son righting himself by his own hand and by violence ; and therefore ordinarily/ 
 the only matters involved are the possession of the plaintiff and the use of\ 
 force bV defendant." 19 Cyc. 1124 and cases there cited. See also Murry v.L 
 Burris,'6 Dak. 170 (1889) ; Fult.'; v. Munro, 202 N. Y. 34 (1911) ; Meier v. 
 Hilton, 257 111. 174 (1913). For Pennsylvania, see Act of March 31, i86o,y 
 P. L. 382, §§ 21, 22, P. & L. Dig. 2329 and notes, also under the Act 
 of 1700, Blythc V. IVright, 2 Ashmead 428 (1841).
 
 l66 ACTIONS 
 
 tion. 3 Cliitty, Criminal Law 887. 888; 2 Rurns' Justice, 220. The 
 rcporteil cases in this state where the statutory action is brought by 
 the person injured sustain the same view. Mairs v. Sparks, 5 N. J- L- 
 513 ; Berry v. U'illianis, 21 N. J. L. 423, at p. 427 ; FunkJiauser v. Col- 
 loty, 6/ N. J. L. 132, at p. i35,\50 Atl. 580. The pecuUar section of 
 our act which was the subject of discussion in Mason v. Powell, 38 
 N. ]. L. 576, recognizes the necessity of possession, and the language 
 of the act is: "If any jierson shall enter upon or into any lands, 
 tenements, or other possessions," the judgment, if in favor of the 
 complainant, is followed by a writ of restitution directed to the 
 sheritV to cause the complainant to be reseised or jiossessed.^*' i Gen. 
 St. 1598, pi. 13. 
 
 The important cjueslion now presented, one of the difficult and 
 imjwrtant questions of the law, is : What constitutes "possession" ? 
 The learned trial judge seems to have thought that mere occupancy 
 was possession in the view of the law — a not uncommon confusion 
 of thought to which the Court of Appeals of New York called at- 
 tention in Myc/att v. Coe, 142 N. Y. 78, 36 N. E. 870, 872, 24 L. R. A. 
 850. The distinction has been touched upon in our owm cases. 
 Corlies v. Corlies, 17 N. J. L. 167, was an action for forcible entry 
 and detainer. Mr. Justice Dayton in dealing with the averments 
 of the complaint said that the complainant must have had actual 
 possession of the premises, and that an averment that he and his 
 horses and w-agon were pushed and backed off the premises, when 
 coupled with an averment of seizin in fee simple, did not suffice, 
 since it might be true tliat he was actually on the premises, but was 
 there only by accident or as a visitor or trespasser. That mere occu- 
 pancy or personal presence upon the ground is not sufficient to con- 
 stitute that possession which the law clothes with legal rights is 
 shown by a few illustrations. There may be possession without occu- 
 pancy, as where a man's servant is in the actual occupancy of the 
 property holding possession for him, or where a man has temporarily 
 gone out of his house, leaving no one in charge, but still having legal 
 possession ; and there may be a case of occupancy without posses- 
 sion, as where in a man's absence a mere stranger, visitor or tres- 
 passer goes into his house without claim of right. In Bacon's 
 Abridgment, under the head of "Forcible Entry and Detainer" (4 
 Bacon's Abridgment, Amer. ed. 328), it is said: "A man who breaks 
 open the doors of his own dwelling or of a castle which is his own 
 
 "Judgment in forcible entry and detainer is for restitution of the prem- 
 ises sued for. Kerr v. Phillips,' s N. J. L. 818 (1820) ; Robinson v. Crnmcr, 
 10 111. 218 (1848) ; Farzvell v. Boston, 63 Mo. 446 (1876) ; Stover v. Hazcl- 
 hakcr, 42 Xebr. 393 (1894). Damages are not recoverable. Minor v. Knoiules, 
 I Root (Conn.) 142 (1789) ; Foe v. Bradley, 44 Ark. 300 (1884), unless al- 
 lowed by statute, Rimmcr v. Blasingame, 94 Cal. 139 (1892) ; Lane v. Rithl. 
 103 Mich. 38 (1894); Bach. v. Ncu.\ 23 App. Div. (N. Y.) 548 (1897); 
 Cole V. Eagle, 8 B. & C. 409 (1S28) ; Mairs v. Sparks, 5 N. J. L. 513 (1819). 
 But where damages can not be recovered against the rightful owner for 
 forcible entr>-, they may be recovered for any independent wrong such as 
 injury to furniture. Be'ddall v. Maitland, L. R. (1881), 17 Ch. Div. 174, but 
 see Jones v. Foley, L. R. (1891), i Q. B. Div. 730. A writ of restitution on a 
 collusive plea of guilty will be set aside. Coinm. v. Griffin, 149 Pa. 176 (1892).
 
 SCIIWINN Z'. PERKINS 167 
 
 inheritance, but forcibly detained from him by one who claims the 
 bare custody of it, can not be guilty of a forcible entry or detainer 
 within the statute," and Ex parte Shotzvell, i Ashm. (Pa.) 140, is 
 quoted as authority for the statement that the possession of the 
 prosecutor must be quiet, peaceable and actual, not a mere scram- 
 bhng possession. Archbold (2 Archbold's Criminal Pleading 331) 
 cites this passage as the law. In a recent philosophical treatise 
 (Pollock & Wright on Possession), it is said that whether legal 
 possession shall follow physical possession or not is a point of law ; 
 and that whether there exists at the date in question between a given 
 person and a given thing the relation of physical possession or occu- 
 pation is wholly or mainly a matter of fact (p. 10). The distinction 
 thus made between occupancy or physical possession and legal pos- 
 session appears very clearly when the case is presented of two per- 
 sons in the occupancy of the same property. Littleton^' says that 
 "If A be seised of a mese (i.e., a house including 'buildings, cur- 
 tilage, orchard and garden,' Co. Litt. 56a), and F that no right hath 
 to enter into the same mese claiming the said mese to hold to him 
 and to him and to his heirs entereth into the said mese, but the said 
 A is tlien continually abiding in the same mese; and in this case the 
 possession of the freehold shall be always adjudged in A and not in 
 F, because in such case v/here two be in one house or other tenements 
 and the one clairaeth by one title and the other by another title, the 
 law shall adjudge him in possession that hath right to have the pos- 
 session of tiie same tenements." Bacon's Abridgment (4 Bacon's 
 Abridgement, 327), cites Dalton : "If two are in possession of a 
 house, and the one enters by one title and the other by another, he 
 that hath the right shall be supposed to be in the possession." It is 
 said in Pollock & Wright, p. 19: "We must have some positive rule 
 to meet the case of a thing which is the object of dispute and so 
 evenly disputed that no claimant can be said to have de facto pos- 
 session rather than another. It might conceivably be held that legal 
 possession is in suspense as well as the physical possession. But 
 the common law does not so hold ; it prefers, in the absence of a de- 
 cisive state of fact, to make legal possession follow the better right." 
 Although the authors last cited were not dealing with cases involving 
 force, the citations are important as showing the difficulties that 
 arise in determining the question of actual possession, which alone 
 is important in an action of forcible entry and detainer. The illus- 
 trations last given are quite like the case at bar. If Perkins had 
 been allowed and able to prove what he offered to show, he would 
 have established a prior possession of the premises in dispute, with 
 the acquiescence of Schwinn. This, as the Supreme Court said, 
 did not involve any questioning of Schwinn's title or estate, but 
 only the question of his assent to Perkins' actual possession. While 
 Perkins may not have been physically present in the premises at all 
 hours, if he had taken possession in execution of a parol surrender 
 of the lease, he was legally in possession of the property, and there- 
 after any attempt by Schwinn to resume possession was a trespass. 
 
 " Co. Litt. 368a.
 
 lU'^ ACTlllNS 
 
 A more trespasser may be forcibly ejected if no more force than is 
 necessary for the jnirpose is used; it is only when a trespasser has 
 ceased to be a mere trespasser and his occujiancy has ripened into 
 a possession, althous^h it may be a w ronfj^ful jxjssession only, that the 
 statute relatinj^ to forcible entry and detainer becomes applicable. 
 We ajjree with the statement of Pollock that a mere trespasser does 
 not .s[ain jiossession until there has been something like acquiescense 
 in the physical fact of his occupation on the part of the rightful 
 owner. Pollock on Torts, 312. This was' the view taken by Lord 
 Denman in Brozvn v. Dazvsou, 12 Adolphus & Ellis, 624, at page 629, 
 10 L. T- Q- B. 7. He says: "A mere trespasser can not, by the very 
 act of trespass, immediately and without excuse give himself what 
 the law understands by possession against the person whom he 
 ejects, and drive him to produce his title, if he can without delay re- 
 instate himself in his former possession." The use of the word 
 "former" in connection with possession seems to be inaccurate, as 
 the possession can hardly be said to have been terminated by the 
 act of trespass if the trespasser did not himself gain possession by 
 that act alone. It is difficult to say what will suffice to enlarge a 
 mere occupation into a legal possession. Some light is thrown upon 
 the subject by the passage from Practon, cjuoted by the Supreme 
 Court of Massachusetts in Page v. Dwiglit, 170 Mass. 29, 48 N. E. 
 850, 39 L. R. A. 418. Bracton, 162b. Bracton is dealing with a case 
 of disseisin; and says : "The first and principal remedy is of this 
 kind, namely, that he who has been disseised may reject the spoiler 
 of his own strength if he can, or by strength which he has called in 
 or recalled, provided no interval has elapsed, the disseisin or mis- 
 deed being flagrant." Bracton's expression as translated, "provided 
 no interval has ela])sed," hardly differs from Lord Denman's expres- 
 sion six centuries later, "without delay." In such a case as Mr. 
 Justice Barker suggests in Pac/e v. Dxvight. the forcible entry and 
 the recapture are but one transaction, and the recapture is not a 
 forcible entry, but a successful and proper resistance of a forcible 
 entry ; all that has been done is to resist successfully a wrongful act. 
 It would be a travesty of law, if a man could enter my house and defy 
 me to protect my own possession except by the slow^ process of the 
 courts ; and, if I am in possession, it can make no difiference whether 
 the trespasser enters by force or by stealth. The act as to forcible 
 entries and detainers was for the protection of those who already 
 had actual and peaceable possession, not for those who newly ac- 
 quired a mere foothold by force or by stealth. No distinction in the 
 two methods is made by the books, and in Mason v. Powell, 38 N. J. 
 L. 576, the entry which was held to be a forcible entry was made in 
 the absence of the rightful possessor and. w ithout any breach of the 
 peace. These views are in harmony with the expressions of our own 
 courts. Mairs v. Sparks, 5 N. J. L. 513, at page 516, and Mercer eaii 
 v. Bergen, 15 N. J. L. 244, at page 247, 29 Am. Dec. 684. These cases 
 are similar to the present. If Perkins took possession in August in 
 execution of Schwinn's surrender, that possession was in him still 
 unless Schwinn had in some way acquired a new possession; and the 
 jury might have found that Perkins, instead of acquiescing, under-
 
 SCIIWINN V. PERKINS 169 
 
 took to resist what amounted, under the decision in Mason v. Powell, 
 to a forcible entry by Schwinn, and, so far from being himself guilty 
 of a forcible entry, was only defending his already existing posses- 
 sion against a mere trespasser. The Massachusetts Supreme Court 
 has reached the same result in a similar case. Hodgkins v. Price, 
 132 Mass. ig6. The court said: "The process is for the purpose of 
 restoring one to a possession which has been kept from him by force. 
 It is not a process against a party who resists the right of posses- 
 sion by force, but it is for an interference with an actual possession. 
 The claim that this plaintiff was ever in possession of this estate is 
 simply preposterous. He had no more possession of it than he would 
 have had of one of the rooms of the building if he had gone into such 
 room and said to the occupant of it : 'I have come to take possession 
 of this room. Here I am, in possession ; you will please go out. I 
 propose to hold this by force, and, if you attempt to remove me by 
 force, then the v.'eaker of us on being ejected will bring an action of 
 forcible enti-y and detainer against the other.' But to make this 
 illustration precisely analogous we will say that this party, instead 
 of calling in at the place of business when the tenant was there, took 
 the opportunity while he had gone to dinner to clamber through the 
 transom window over his door, and in the mode before suggested 
 salute him upon his return. It w^ould be a disgrace to the law and 
 to all concerned in the administration of it, to say that a possession 
 thus forcibly obtained, before the business hours of the day from 
 one who is in actual peaceable occupation of the premises, is to be 
 protected and restored by the law w^hen the actual occupant shall 
 resume his occupation." If the rejected evidence had been received, | 
 it would have presented a question for the jury v/hether the plaintiff's i 
 agent Willits was occupying the premises under such circumstances ' 
 as amounted to a legal possession, or whether Perkins had the legal 
 possession by virtue of an executed surrender. We think the evi- 
 dence should have been received, and that the Supreme Court was 
 right in reversing the judgment of the District Covirt.^^ 
 
 ^'^ The plaintiff in tliis action must show actual and peaceable possession 
 prior to the time of the forcible entry and detainer. Pennsylvania v. ll^addlc , 
 -ATTTn-^n YPf i.7 41 (I7Q2 ) ; Carter v. Neivbold, 7 How. Pr. (U. V.) 166 (1852) ; 
 Mann v. Brady, 67 111. 95 (1873) ; Comrnoni<.'calth v. Bro^vn, 138 Pa. 44 7 
 (1891); Cain V. Flood, 21 N. Y. Civ. Froc. 116 (1891) ; Culled ge v. white, 
 IZ Tex. 498 (1889) ; Chessen v. Harrehon, 119 Ala. 435 (1898) ; Laskodik v. 
 Touiashumes, 161 111. App. 598 (1911) ; Carrier v. Carrier, 85 Conn. 203 (1912). 
 Mere constructitve possession is insufficient, although an actual foothold is 
 not always absolutely requisite. O'Neill v. Jones, 72 Minn. 446 (1898) ; 
 Bradley v. West, 60 Mo. 59 (1875) ; Gid dings v. Land, &c., Co., 83 Cal. 96 
 (1890) ; Midler v. Blake, 167 111. 150 (1897). Possession without right has 
 been protected against forcible dispossession even by the legal owner. Iron 
 Mountain R. Co. v. Johnson, 119 U. S. 608 (1886) ; Mitchell v. Carder, 21 W. 
 Va. 277 (1883) ; Peyton v. Peyton, 34 Kans. 624 (1886). But a mere scram- 
 bling or interrupted possession is insufficient to support an action. IVray v. 
 Taylor, 56 Ala. 188 (1876) ; Nezvton v. Doyle, 38 Mich. 645 (1878) ; Stevenson 
 V. Morrissey, 22 111. App. 258 (1886) ; Blake v. McCray, 65 Miss. 443 (1888). 
 A mere trespasser or intruder can not bring proceedings. Hodgkins v. Price, 
 132 Mass. 196 (1882) ; Lawton v. Savage, 136 Mass. iii (1883) ; Co.v v. Cun- 
 ningham, 77 111. 545 (1875) ; Torrey v. Berke, 11 S. Dak. 155 (1898). Gen- 
 erally, the entry or the detainer must be accompanied by acts of violence or
 
 I TO ACTK^XS 
 
 (c) Dower. 
 
 W'ATl'.RS z'. GOOCH. 
 
 CouuT OF Appkai.s of Kfxtuckv, 183 1. "' 
 6 J. J. Marsh, (/vy.) 5S6. 
 
 RoBFKTSOX, C. J.: This writ of error is prosecuted to reverse 
 a jiulg^nient against the demandant in a writ of dower, wide nihil 
 Itabcf.-'' The defendant, who was such as tenant, did not enter his 
 aj^pcarance, but demurred to the evidence given on a writ of inquiry ; 
 and the demurrer was joined by the demandant, and sustained by the 
 court. The opinion on the demurrer was reserved until the jury had 
 returned a verdict in favor of the demandant for dower, and for one 
 cent in damages. And then, after sustaining the demurrer, the fol- 
 lowing judgment was rendered: 
 
 "Therefore, it is considered by the court that the defendant re- 
 cover against the plaintiff his costs by him, about his defense herein 
 expended, and the said plaintiff in mercy," etc. 
 
 The common-law writ is an unusual though an appropriate rem- 
 edy for obtaining dower in this state.''" But as no statute of Ken- 
 tucky, or of Virginia j)rior to the separation, has prescribed the mode 
 of procedure throughout, and as the bill in equity has, in the practice 
 of botli states, superseded the real action of the common law in 
 cases of dower, we have to decide now, for the first time and with- 
 out the aid of any direct authority, how far the ancient British 
 forms in such cases shall prevail, and what is the proper mode of 
 proceeding in the courts of this state. 
 
 In England, when the writ was obtained, a summons was served 
 
 menaces suflficient to cause an api)rehension of injury. Kramer v. Lott, 50 
 Pa. 495 (1865) ; Thoinpson v. C qinmomvealLlu 116 Pa. 155 (1887) ; Pharis v. 
 Gere, no N. Y. 336" (1888) ; Richter \. Cordcs, 100 Mich. 278 (1894) ; i'nits 
 V. Mmiro, 202 N. Y. 34 (1911) ; In re Mnnro, 195 Fed. 817 (1912) ; Brooks v. 
 Brooks, 84 N. J. L. 210 (1913). In some cases an entry against the will of 
 the occupant obtained by strategy or stealth has been held sufficient to sus- 
 tain the charge. Tucker v. Qiiimhy, 27 Iowa 15 (1873) ; Ilainmond v. Doty, 
 184 111. 246 (1900) ; Young v. Milward, 109 Ky. 123 (1900) ; Cartcri v. Rob- 
 erts, 140 Cal. 164 (1903); White v. Pfieffer, 165 Cal. 740 (1913). The action 
 does not lie against one put in possession by the sheriff under a writ. Rook 
 V. Godfrey, 105 Tenn. 534 (1900), but if the writ be void it will not give law- 
 ful possession. Stark v. Billings, 15 Fla. 318 (1875). 
 
 ** The legal remedy at common law to enforce an assignment of dower 
 was the writ of dower ttnde nihil habet, or the writ of right of dower, brought 
 against the tenant of the freehold, the former writ was adopted where no 
 dower had been assigned by the tenant within the vill where the lands lay 
 of which dow-er was demanded, but if the widow had received part of her 
 dower the remedy was by writ of right of dower. Scribner on Dower, vol. 
 II, p. 91. The writ was abolished in England by the Common-Law Procedure 
 Act of i860, § 26, and now an ordinary action is commenced by writ en- 
 dorsed with notice that dower is claimed, Rules of Supreme Court, Appendix 
 A, pt. II, § 4. 3 Select Essays Anglo-Amer- Leg. Hist. 690. 
 
 *" In a number of the states the common-law mode of proceeding by writ 
 of dower unde nihil habet is substantially retained, although the widow is
 
 WATERS V. GOOCH I /I 
 
 on the land, and proclamation, warning the tenant of the freehold, 
 was made, fourteen days before the return of the summons, on a 
 Sabbath day after divine service, at or near the church in the parish 
 in which the land lay; on a proper return of the service and procla- 
 mation, the tenant was entitled to an essoign if he appeared, but if 
 he failed to appear the demandant was entitled to a "grand cape," 
 commanding the sheriff to take one-third of the land designated by 
 metes and bounds by the view of good and lawful men (generally 
 two, and to warn the tenant to appear at the next term. On a 
 proper return of the grand cape the demandant v^^as entitled to a 
 judgment for her dov/er and for a writ of seizin for the land, de- 
 scribed in the return, to be held by her in severalty; after judgment 
 for dower by default, if the demandant claimed damages also, and 
 suggested on record that her husband died seized, a writ of inquiry 
 was av,-arded ; the inquisition was taken by the sheriff in the coun- 
 try and returned on the writ of seizin. It was not necessary to file 
 a count unless the tenant entered his appearance and offered to 
 plead; and when an issue was made up, unless the jury, impannelled 
 and sworn to try it, found specially that the husband died seized, and 
 of what estate and v/hen he died, the demandant was not entitled to 
 damages; 2 Saunders Reports 43, n. i, 3, 4. 
 
 The judgment for dower and that for damages were deemed 
 chstinct, and independent, the one of the other. The suit Avas con- 
 sidered as ended, at common law, by the judgment for seizin, and 
 the damages v^-ere added by the statute of Merton, only when the 
 husband died seized ; and hence, though personal notice was not 
 necessary in order to obtain a judgment for dower, an inquisition 
 of damages was illegal and ineffectual unless the tenant had personal 
 notice of the time of executing the writ of inquiry ; 2 Saun. 45, a. n. 4. 
 
 A statute of Virginia (1748) re-enacted in this state in 1796, 
 I Dig. 66, declares that "process in all real actions shall be the same 
 and have the same effect as in England, except that the returns shall 
 be according to the laws of this commonwealth ;" and also allows 
 one imi)arlance, and abolishes "views" essoins, and "vouchers." 
 An act of 1798, i Dig. 66, reformed the method of proceeding in 
 writs of right; but the mode of proceeding in writs of dower has 
 never been s])ecially regulated by any statute. We are of opinion, 
 however, that the statute of 1810, i Dig. 258, and that of 181 1, i 
 lb. 262, for regulating civil proceedings in all suits at common law, 
 
 not limited to the common-law action alone. The action, however, has been 
 modernized and simplified. See Massachusetts Revised Laws (1902), ch. 
 180, p. 1621 ; Maine Rev. Stat. (1903), ch. 105, p. 848; New Hampshire Pub- 
 lic Statutes (1901), ch. 242, p. 753; Rhode Island General Laws (1909). ch. 
 329, p. 1196, § 7; New Jersey General Statutes, vol. II, p. 1275; Delaware 
 Laws, ch. 87, p. 663; Pennsvlvania Act of T une i.^. 1836; P. L. 568, § 79; 
 Brozcn v. Adams, 2 Whart. (Pa.) 188 (18,36): Jo herv:T 'aiterson, J2 Pa. 149 
 Ti^dO) : A'Uracldcn v. Mcl^addcn 32 Pa. Super. Ct. 534 (1907)- In some 
 jurisdictions ejectment will he tor unassigned dower. Galhraith v. Fleming, 
 60 Mich. 408 (1886), although at the common-law ejectment vvould not lie 
 where the dower had not been assigned. Doc v. Niiit, 2 Car. & P. 430 (1826) ; 
 Go nrlcy y Kinley, b6 V:i. 270 (1870 ). In New York the action for dower is 
 regulated by the ("ode of Civil Procedure, §§ 1596 to 1625. In California, 
 dower, as such, is not allotted to the widow, California Civil Code, § 173.
 
 IJ2 ACTIOXS 
 
 must be understood as aiiplyinj^ to writs for dower, not only as to 
 the service and return of ])rocess, hut also as to the pleadings and 
 trial : Consec|uently, a count will he necessary whether the tenant 
 appear or not, and the case, like other common-law suits, may stand 
 for trial at the hrst term after ten days' personal service of the writ. 
 Trior to the statute of IMerton a demandant was not entitled to 
 recover damai^es in any writ of dower. That statute allowed dam- 
 aj?es when the husl)and had died seized.'^ P)Ut since its enactment 
 the common-law form of declaring (when a count became neces- 
 sary ) was not changed ; and consec|uently it was never necessary to 
 a\cM. in the count, that the husband died seized. But when the de- 
 mandant had obtained judgment for dower by default and without 
 a count, a writ of inquiry of damages was not awarded unless it was 
 suggested on the record that the husband had died seized. 
 
 ' The tenant, by default, admits the demandant's right to dower so 
 far as her count alleges a legal claim: consequently a judgment for 
 the dower should be rendered, in such a case, in consequence of the 
 default. But there should be no writ of inquiry unless it be inferable 
 from the count that the demandant claims damages by averring, in 
 substance, that her husband died seized. For, unless the count can 
 be construed as importing an allegation that the husband died seized, 
 a default does not admit that the demandant has a right to damages 
 or to a writ of inquiry: and as a writ of inquiry in a case of dower 
 should be executed in court (as in ordinary cases in this country), 
 the tenant might be surprised if there sh<)uid be an inquisition asto 
 damages when he had not been notified by the count or otherwise 
 that the demandant claimed, or w^as ever entitled to any damages. 
 It seems to us that as, according to the statutes of 1810-11, writs of 
 dower should be tried in the same manner as other suits at law^ are 
 triable, whenever a demandant may be entitled to a writ of inquiry, 
 the inquisition should be held on the hearing of the cause in court; 
 and hence, as the common-law mode of suggesting on the record 
 that the husband died seized, and of notifying the tenant of the time 
 of holding the inquisition in the country is ineligible and inappro- 
 priate here, there should be no inquiry of damages, by default, un- 
 less the count allege, in effect, that the husband died seized.^- 
 
 *' Emhrec v. liUis, 2 Johns. (N. Y.) 118 (1S07). See N. Y. Code Civ. Proc, 
 § 1601, and Marble v. Lezds, 53 Barb. (N. Y.) 43^ (1867) ; Blair v. Ohphani, 9 
 Mo. 237 (1943) ; La\ton v. Butler, 4 Harr. (Del.) 507 (1847) : Hopper v. Hop- 
 per. 22 N. J.'L. 71s" (l8so) ; Brnnrr v. Evans. 3 V. & W. (Pa.) 4.S4 (1832) ; 
 Price V. Hohbs, 47 Md. 359 (1877) ; Roan v. Holmes, 32 Fla. 295 (1893) and 
 note 21 L. R. A. 180. 
 
 *- In modem proceedings the sufficiency of tlie pleadings will, of course, 
 depend upon the statutes and practice of the particular jurisdiction. In gen- 
 eral, the widow should set forth her marriage. Draper v. Draper, il Hun 
 (N. Y.) 616 (1877), the seizin of her husband, Morse V. Thorsell, 78 III. 600 
 (1875); Hiitchins v. Burril, 72 Maine 311 (1881); Kenyan v. Kenyan, 17 
 R. I. 339 (1891) ; Garrison v. Young, 135 Mo. 203 (1896) ; describe the prem- 
 ises. Atzvood V. Atzi'ood. 22 Pick. (Mass.) 283 (1839) ; Bostick v. Barnes, 59 
 S. Car. 22 (1900), and in some jurisdictions a demand on the tenant. Free- 
 man V. Freeman, 39 Maine 426; (1855) '- Ba9C v. Page, 60 Mass. 196 (1850) ; 
 Daz'is V. Walker, 42 N. H. 482 (1861), although at common law such a demand 
 was unnecessar>- to tlie maintenance of an action, Jackson v. Loucks, 7
 
 WATERS V. GOOCH 1 73 
 
 The count in this case, dQ£s_not-. allege that the husband died 
 seized ; consequently the writ of inquiry was unauthorized, and ought 
 to have been set aside. When a defendant admits, by default, that 
 ttTe~T5taintifT'is entitled to damages, a demurrer to evidence on the 
 inquiry would be irregular, because the effect of a demurrer to evi- 
 dence, and of a judgment sustaining such demurrer, is, that the 
 plaintiff is not entitled to any damages ; and, therefore, when a de- 
 fendant has admitted, by his default, that the plaintiff is entitled to 
 some damages, he should not demurr to illegal or insufficient testi- 
 mony, but should object to its introduction, or move to exclude it. 
 But as the default in this case did not admit that the demandant was 
 entitled to any damages, the demurrer to the evidence which proved 
 that her husband had sold and conveyed the land in his lifetime, was 
 proper, although a motion to set aside the inquisition, or quash the 
 writ of inquiry might, perhaps, have been more regular. The de- 
 mandant was not entitled to costs, unless she had been entitled to 
 damages, for Vv^e know of no law allowing costs to a demandant in 
 a writ of dower when she fails to obtain damages.*'' 
 
 Wherefore, as to the damages and costs, the circuit court did not 
 err in sustaining the demurrer. Rut it erred in giving costs to the 
 tenant, as he had not entered an appearance, and also in rendering 
 judgment in bar of the action. As the default admitted the right to 
 dower so far as it was sufficiently alleged in the count, jvidgment 
 ought to have been given for dower; and if the cotmt be defective, 
 still the court erred in barring the action; and therefore judgment 
 must be reversed. As the case will be remanded, and may be retried, 
 it is proper to observe that the count is defective in not alleging that 
 the husband was ever seized of such an estate as would entitle the 
 wife to dower. To entitle a demandant to do\yer, her count must 
 aver, in substance, that "stfe' was the wife ; and that the husband was, 
 during coverture, seized of a freehold interest at least; see Booth on 
 Real Actions ; Sanders, supra, and Ambler and Wife v. Norton, 4 
 Henning & Munford, 42. It is true that a freehold may be only a 
 life estate; but it is a maxim in pleading that a freehold shall prima 
 facie, be understood to mean the largest estate in fee. The count in 
 this case avers only, that the husband had "purchased" the land. 
 That is not equivalent to an averment that he had acquired a free- 
 hold interest ; because he might have "purchased" only an estate for 
 years, of which his wife would not have been dowable. 
 
 As there may be another trial, we deem it not improper to make 
 a further suggestion as to the mode of obtaining and enforcing a 
 judgment for dower. Neither tlie grand nor petty cape can be 
 ap])licable or proper in the procedure by writ of dower in this state; 
 because, according to the statute regulating the mode of proceeding 
 in common-law actions, a judgment- may be obtained at the appear- 
 ance term ; nor is any other process necessary or proper for warning 
 
 Cow. (N. Y.) 287 (1827) ; Cozvan v. Lindsay, 30 Wis. 586 (1872) ; but failure 
 to make demand may bar a recovery of damapes for detention on a plea of 
 toiit teynps prist. Woodruff v. Brovun, 17 N. J. L. 246. 
 
 "Fisher v. Morgan, i N. J. L. 147 (1792) : Slia rt) v. Pettit. 4 . Dall. (Pa.) 
 212 (1800), but see Gann on v. Wildman. t. Pa. D. R. 835 (1894).
 
 1/4 ACTIONS 
 
 the tenant, than a writ in the nature of the precipe, and the form 
 of which is given, in outline, by an act of i7Qt\ i Dig. 445. 
 
 In England, when the tenant appeared and pleaded to the action, 
 if the demandant obtained judginent for dower, it was rendered for 
 one-third of tlie land (^described in the count) to be ascertained and 
 allotted to her by metes and bounds by the sheriff, on an inquisition 
 by two or more persons selected by him in pursuance of the writ of 
 seizin on which he made his return to court showing the manner in 
 which he had executed it, and what land he had delivered to Uie de- 
 mandant.** The form of the judgment for dower, together with that 
 for damages when the husband died seized, may be seen in 2 Sand- 
 ers. Ov^i'-- Such must be the judgment in this country, whether 
 rendered upon an issue or by default, because, as neitlier the gjand 
 nor petty cape can be used, and as a judgment may be rendered at 
 the first term succeeding tlie service of the writ, tlie dower can not 
 be designated here prior to the judgment, as it was in England when 
 there was a default, and therefore must, in all cases alike, be set 
 apart in severalty by the sheritt acting under the writ of seizin. If 
 either party have cause to complain of the manner of executing the 
 writ, the return may, for sufiicient cause, be quashed, and a new 
 writ issued. 
 
 If the husband had alienated the land in his lifetime, seizin 
 should be given to the wife of a third in value, according to the con- 
 dition of the land at the date of the alienation ; Perkins, Tit. Dow. 
 sec. 328; Hargrave's note, 193, to lib. i Co. Lit. Humphrey v. Phin- 
 ney, 2 Johnson's Rep. 484; Dorchester v. Coz'eutry, 11 Johnson's 
 Rep. 512; ShaiL' v. White, 13 Johnson's Rep. 179. 
 
 On the return of tlie cause to the circuit court the demandant 
 may amend her count, and the defendant may, of course, appear and 
 plead. 
 
 Judgment reversed, and cause remanded for further proceedings 
 consistent with this opinion.*^ 
 
 ** Folicmbc's Case, Godbolt's Reports 165 (1611) ; Gannon v. U'idman, 
 3 Pa. Dis. R. S35 (1894). See also, Scribner on Dower, vol. II. p. 140; Park 
 on Dower, p. 299. 
 
 " As early as the reign of Elizabeth the court of chancery- exercised an 
 auxilian,- jurisdiction in claims for dower. The limits of this jurisdiction 
 were not clear at first, but in time were expanded until as a final result of 
 the decisions, equity entertained a general concurrent jurisdiction in the 
 assignment of dower. Curtis v. Curtis, 2 Brown's Ch. 620 (1789) ; Mundy v. 
 Mundy, 2 Vesey Jr. 122 (1793") ; Pultncy v. Warren, 6 Vesey Jr. 73 (1801). 
 This jurisdiction has generally been assumed by courts of equity in America. 
 Herbert v. Wren, 7 Cranch (U. S.) 370 (1S13) ; Badgley v. Bruce, 4 Paige ch. 
 (X. Y.) 98 (1833) ; Hartshornc v. Harishorne, 2 X. J. Eq. 349 (1840) ; Blain 
 V. Harrison, II 111. 384 (1849) ; Farrow v. Farro'je, I Del. Ch. 457 (1822); 
 S Prague v. Stciens, 2^ R. I. 361 (1911). 
 Jt In Pennsylvania, the Act of July 7, 1885, P. L. 257. confers upon the 
 
 , courts of common pleas all the power and jurisdiction of a court of equity 
 in dower and partition. See under prior acts. Br oiL-n's At>Peal, 84^ Pa. 457 
 (1877) : Kelso's Appeal, 10 2 Pa. 7 (1882). The^Orphans' Court has jurisdic- 
 tion where the widow elects to take against her husband's will. Lippincott's 
 Estate, 7 Phila. (Pa.) 504 (1870) ; Robin's .►\ppeal. i W. X. Cas. 238 (1875).
 
 DUVALL V. WATERS 1 75 
 
 (d) Waste. 
 
 DUVALL V. WATERS. 
 
 Court of Chancery of ]^vIarylaxd, 1827.. 
 
 I Bland Ch. (Md.) 569.'" 
 
 Bland, Chancellor : The terms waste and trespass are very often 
 used to designate injuries to property of the identical same nature. 
 The cutting of a timber tree, or the pulling down of a house, may be 
 an act entirely lawful; or it may be an act of waste, or of trespass; 
 and, that not because of any peculiarity in the act itself ; but, because 
 of the party, by whom it may have been done, having an absolute 
 title, a limited estate, or no right whatever. The absolute ovv'ner of 
 an estate in fee simple, Vv-ithout any incumbrance, or charge upon it, 
 has an uncontrollable power to dispose of it as he may think proper ; 
 and can be, in no way held accountable, as a w^aster or trespasser, 
 for any thing he may do with the trees, houses, or soil of his lands. 
 If he who does s uch an act has o nly a particular estate, as a tenancy 
 T or life or~y ears, It is properly deribrhlhate^'lva'STgT'fant^f^T^ 
 ri^hL whatever, it- is then said to be a trespa ss! iii general, when 
 any permanent or lasting "injury is done, by'The holder of the partic- 
 ular estate, to the inheritance, or to the prejudice of any one who 
 has an interest in the inheritance, it is properly called waste; as 
 where timber trees are felled, or houses are destroyed by a tenant 
 for life or years; or by a mortgagor or mortgagee in possession; or 
 by a tenant in fee simple, where the state has reserved to itself an 
 ^interest in the trees, etc., for the use of the public. 
 
 In general waste is the abuse, or destructive use of property by) 
 him who has not an absolute unqualified title. And in general tres-/ 
 pass is an injury, or use, without authority, of the property of an-l 
 other, by one who has no right whatever. 
 
 At common law, if the owner of the inheritance had good reason 
 to believe, that a tenant in dower, or by the courtesy, or a guardian 
 designed to commit waste, he might, before any waste was done, 
 have a prohibition directed to the sheriff, commanding him to pre- 
 vent it from being done ; and in execution of this writ of prohibition, ^ 
 the sheriff might, if necessary, call to his aid the posse comitatus. .^ "^ 
 This writ was extended, by a statute passed in the year 1267, to ' 
 tenants for life and for years; and afterwards, in 1285, it was taken ^.,-■.-'- 
 away, and another form of writ given in its place; but when the !*' J,^^ 
 court of chancery first granted injunctions, it seems to have taken •■' 
 its jurisdiction from this writ of prohibition of waste.*" 
 
 After waste had been actually committed, the ancient corrective 
 remedy, in a court of common law, was by a writ of waste, for the 
 
 ^" Only so much of the opinion of the chancellor as describes the com- 
 mon-law remedies for waste is printed. 
 
 " Coke on Littleton, 53 ; 2 Coke's Institutes, 299 ; Jefferson v. Bishop of 
 Durham, i B. & P. 105 (1797).
 
 176 AfllONS 
 
 recovery of the pUue wastctl aiul treble damages, as a compensa- 
 tion tor the injury done to the inheritance."* There were, however, 
 several cases to which the writ of waste did not extend; and as to 
 such cases, the party was left without any remedy at ccjmmon law. 
 The action of waste could only have been brought by him who had 
 the unmediate reversion or remainder, to the disinheritance of whom 
 the waste wais always alleged to have been committed ; and there- 
 fore, if a lease had been made to A for life or years, remainder to 
 B for life; and A committed waste, the action could not be brought 
 bv him, in reversion or remainder, so long as the life estate of B 
 continued. Rut thejntervenm^jjfe estate only s.U5pended the rem- 
 1 edy^ for, after its termmationTTTie reversioner, or remainderman 
 might then bring his action against A for the waste done before 
 that time,*" Nor could ajiy one maintain this action unless he had 
 the estate of inheritance in him at the time the waste was com- 
 mitted ; nor could it be sustained against an executor, for waste com- 
 mitted by his testator, it being a wrong which died with the person; 
 nor could one coparcener bring an action of waste against another ; 
 although one joint tenant or tenant in common might have a writ of 
 waste against his cotenant, compelling him either to make partition, 
 and take the place wasted as his own share, or to give security not 
 to commit any further waste."'" 
 
 At the common law there was no process by which a threatened 
 trespass upon a real estate, however great or irreparable, could be 
 prevented. After the act was done the injured owner might bring 
 his action of trespass against the vv^rongdoer, and recover satisfac- 
 tion in damages ; but. the common law gave him no means of pre- 
 venting the execution of the designs and threats of any one, w^hose 
 declared and settled purpose was to commit a trespass upon his 
 
 ^^ "Waste, at common law, was a real action which could be maintained 
 
 for an injur\' to lands, houses and woods to the prejudice of the heir. By 
 
 the statute of Gloucester (6 Edw. I, ch. 5), the plaintiff could recover not 
 
 only the possession of the property, but treble damages for the injury. 
 
 Thereafter the action was considered a mixed action and was based partly on 
 
 the common law and partly on the statute. After beinp in long disuse in 
 
 England, the action was abolished by the statute, 3 & 4 William IV, ch. 27. 
 
 iThis action was never much in use in this country, the action on the case in 
 
 I the nature of waste for the recovery of single damages only being resorted 
 
 Ito in Its stead, as it had long superseded in England the old action of waste." 
 
 I Wills' Gould on Pleading, 13. 3 Blackstone's Commentaries, 228; Moore v. 
 
 Tounshend, zi N. J. L. 284 (1869); Stevens v. Rose, 69 Mich. 259 (1888). 
 
 To what extent the statutes of Marlbridge and r,Ioucester are in force in this 
 
 countr>- is a matter of considerable uncertainty. Compare Sackett v. Sackett, 
 
 8 Pick. (Mass.) 309 (1829); ll'aples v. U'ap'les, 2 Harr. (Del.) 281 (1837), 
 
 with Moore v. Ellsivorth, 3 Conn. 483 (1821) ; Stetson v. Day, 51 Maine 434 
 
 (1863); Roby V. Ne-u'ton, 121 Ga. 679 (1904); Magness v. Harris, 80 Ark. 
 
 ^83 (1906), and see 4 Kent's Commentaries, 80. 
 
 *' Robinson v. Wheeler, 2t N. Y. 252 (1862); Short v. Piper, 4 Harr. 
 md.) 181 (1844): Tiffany on- Real Property (1903), § 255. One entitled 
 to a contingent remainder can not maintain an action of waste, his remedy 
 is in equity. Latham v. Lumber Co., 139 N. Car. 9 (1905) ; Ohio Oil Co. v. 
 Daufjhetee, 240 111. 361 (1909) ; Canada v. Daniel, 157 S. W. 1032 (Mo. 1913)- 
 ^Otherwise in Pa. by act of June 8, 1891, P. L. 208. 
 
 ' "'Nelson v. Clay. 7 T. J. Marsh. (Ky.) 139 (18.32) ; JInolihan v. TJnoJihan, 
 193 X. Y. 197 (1908).
 
 DUVALL V. WATERS IJJ 
 
 lands. If, however, the claimant was not in possession, and he 
 thought proper to bring an action to estabhsh his right, and recover 
 the estate; then, and in aid of such suit, and to prevent any injury 
 from being done to the property, pending the controversy, the com- 
 mon law gave the writ of estrepement. It would seem, that orig- 
 inally this writ could only be used as an aid to a real action for the 
 recovery of the land itself ; but, its scope having been extended by 
 statute, it was afterwards used in connection with actions in which 
 no land was demanded, as in actions of waste, trespass, etc. It was 
 not, hovvcver, allowed to be associated with a suit for partition; be- 
 cause the tenants, being both of them in possession, there was no 
 reason why one should be restrained and not the other. A writ of 
 estrepement might be sued out at the same time, and together with 
 the original writ, commencing the action ; and that too, in those cases 
 where damages for waste done, pending the action, might be recov- 
 ered; because it was injurious to the commonwealth that waste 
 should be done, and peradventure he who committed it might not be 
 able to satisfy the plaintiff his full damages. ^^ 
 
 The writ of estrepementjs c-Tlainly a preventive remedy, and so 
 far it is analogous to a writ of prob.ibition, by v/hich a tenant in 
 dower, or by the courtesy might be prevented from doing waste. 
 But it is more; it is also a remedial and correctiye remedy ; because, 
 tlic holder of land may n(.)t onl}- l)c ])rL'\cnted from doing waste; but 
 if he s hould do any notwitlislandinf;- the prohibition, the plaintiff 
 may recover da maL^es fur such waste, e\cn u[) to the time when 
 posses sion stial l be dclixcrcd to liini. Tliis writ has some other pecu- 
 liar traits of character. Tt can ikwt he brought into action inde- 
 pendently and alone ; it must always be associated with another as 
 fe'tea^dfrr ; to which it acts as an auxiliary, whose fortunes it must 
 foTTow, and to v/hose final fate it must submit. If it emanates, as it 
 may, at the same time and together with its chief, from the chancery 
 office, it is then called an original ; but if it be awarded by the court, 
 in which the action is depending, as it may, it is then called a judicial 
 writ of estrepement. This writ, as its very name distinctly imports, 
 is always intended to stay waste. It is nowhere spoken of as a 
 means by which a mere trespass may be prevented ; in all its modifi- 
 cations, it is continually treated as a remedy against waste. But in a 
 writ of right, and all the other actions, except a writ of waste, to 
 which an estrepement is called in as an auxiliary, there is not any 
 privity of title whatever between the parties to the suit; all such 
 privity being expressly disavowed. The plaintiff asserts, and calls 
 for the vindication of his absolute title against an unqualified wrong- 
 doer, who he complains of as a disseizor, ejector, or trespasser. 
 
 '* The scope of the writ of estrepement has been extended in Pennsyl- v 
 vania by the acts of April 2, 1803, 4 Sm. L. 88, § 2; March 29, 1822, 7 Sm. L.' 
 520, § I ; March 27, 1833, P. L. 99, as well as other acts which will be found in 
 2 Pepper & Lewis' Digest, Zi2)2>^ title estrepement. Brown y, O^Brj^n, 3 
 Clark (Pa.) 93 (1838) ; Jones v. W hitehead ,^}. Parson iLq. (Pa.) 304 (1847) ; 
 Smith V. ChaJ>J)cll^S Pa. Super. CX 8r (1904) ; E bcrly v. Rupp , 90 Pa. 259 
 (1879) ; Arthurs v. W ilson, 242 P a. 429 (1913). 
 
 12 — Civ. Proc.
 
 I/S ACTIONS 
 
 Aiul, ihorcforo. in all such cases, the injury which it is the office of 
 the writ of estrepenient to prevent, is not projierly waste, founded 
 on privity of title, as hetwecn a reversioner and a particular tenant; 
 hut literally a trespass, in the chancery acceptation of that term; 
 and not a mere almsive use of that which a lawful holder had a 
 ri.tjht to enjoy. 
 
 Where the title and the rights of the parties are admitted, there 
 can he no mistake ; and therefore, there should be no confusion or 
 misapplication of these terms waste and trespass. But, in the Eng- 
 lish authorities, there is not the same distinctness, in the applica- 
 tion of them, to any such injuries to the inheritance, where the rights 
 of the parties are disputed and ])ut in litigation. If the party asserts 
 his title to an estate, by an action at law, such acts, w ith reference to 
 a i^resumption in favor of the validity of his title ])ending the suit, 
 arc said to be waste; but if he asks, in a court of chancery, to have 
 tlie doing of such acts prevented by an injunction, they are denom- 
 inated trespasses. This difference in characterizing the same in- 
 jurious acts, when proposed to be prohibited by an estrepement, as 
 waste; and when proposed to be restrained by an injunction as tres- 
 pass, has been attended Vvith some confusion. And therefore in 
 relation to the peculiar species of injunctions, now under considera- 
 tion, all such acts as would be deemed waste, when done by an 
 admitted particular tenant, if done after the institution of any suit 
 involving the title, or of a suit for partition, it may be well to de- 
 nominate eventual waste. 
 
 The judicial records of the state, and the acts of assembly reg- 
 ulating officers' fees show, that the writ of waste as well as the writ 
 of estrepement were at one time in common use in Maryland. But 
 here, as in England, these w'rits have fallen into disuse, and 
 are now seldom, or never brought, having given way to the more 
 easy and expeditious remedy by an action upon the case in nature 
 of waste at common law^ ; by which the plaintiff obtains satisfaction 
 for the injury done to his inheritance by a recovery of damages 
 alone ;^- and in Alaryland to an injunction from chancery which per- 
 forms the office of a writ of estrepement. 
 
 The whole subject of waste, in Maryland, seems to have ]:>assed, 
 almost altogether, from the cognizance of the court of common law 
 to that of the court of chancery; and the shifting of this matter so 
 entirely, from the one jurisdiction to the other, may be attributed to 
 the nature of the injury recpiiring redress; to the dififerent constitu- 
 tions of the tribunals ; and to their peculiar modes of proceeding. 
 Waste is a wrong which can not always be duly estimated and re- 
 munerated in damages; it is an injury which requires to be met, in 
 
 "Greene v. Cole, 2 Saund. 252 (1671) arid note; Young v. Spencer, 10 
 B. & C. 145 (1829) ; IVoodlwusc v. Walker, L. R. (1880), 5 Q- B. Div. 404; 
 IVhite V. IVagner, 4 H. & J. (Md.) 373 (1818) ; Smith v. Follanshee, 13 Maine 
 ^72 (1836) ; Bellovjs v. McGinnis, 17 Ind. 64 (1861) ; Moore v. Townsliend, 33 
 N. J. L. 284 (1869) ; Pnftprj^niiv C ^niliffe^y Pliila. (Pa.^ ^6 4. (1875) ; Stevens 
 V. Rose, 69 Mich. 259 ( iSSSyfDorsey v. Moore, 100 N. Car. 41 (1888) ; Jrus- 
 teej^ of Proprietors of Kingston v. Le high ]'. C^^l ^^-- 241 Pa. 469 (1913). 
 Yhere is a double remedy in RliodeTiland. Thackeray \.'~Eldigan, 21 R. I. 481 
 (1899) ; and Maine, Stetson v. Day, 51 Maine 484.
 
 TIIOURON V. PAUL 179 
 
 its onset, or earliest a])i)roaches, by a strong and decisive preventive 
 remedy, acting with a promptness almost amounting to surprise; 
 and yet affording to the party restrained a speedy hearing. No 
 adequate remedy of this kind, it is evident can be obtained from a 
 court of common law, open only at short intervals during the year ; 
 acting from term to term; and limited to a given set of technical 
 forms of proceeding. Hence it is, that the remedy has been so con- 
 stantly, in modern times, sought in the court of chancery, which is 
 always open, constantly accessible, and is capable of moving with an 
 energy and despatch called for by the emergency, and suited to the 
 peculiar nature of the case.^' 
 
 (e) Account.'^* 
 
 THOURON z: PAUL. ^ 
 Supreme Court o f PENNS YIA^AyjA,_I84X^ 
 6 Whart. (Pa.) 615.'' 
 
 Error to the District Court of the City and County of Phila- 
 delphia. ^ . 
 
 ^This was an action of account rende r brought by Nicholas E. 
 Thouron and Henry Paillet", trading under the firm of N. E. Thouron 
 & Co., against Joseph S. Paul and Eliza his wife, late Eliza Clark, 
 administratrix of i\iaskline Clark. The defendants pleaded that the 
 intestate never w^as bailiff or receiver, plene administravit, etc. 
 
 The cause came on for trial before Jones, J., on the 23d of April, 
 1838, when evidence was given on the part of the plaintiffs, that on 
 the tenth day of May, A. D. 1826, the plaintiffs being the owners of 
 certain silk_^oods and other goods, in value seven thousand eight 
 hTmdHd^nd forty-eighf doTFars'and eighty-six cents, sold one half 
 of the same to the intestate Maskline Clark, and took from him his 
 noterat six months, for the same, under an agreement that the goods 
 were to be shipped to Guayaquil,' in South America, on their joint 
 
 •''' For the remedv in equity for waste see Lewis' Cases on Equity Jurisdic- 
 tion, I ; I Ames' Cases on Equity Jurisdiction 460 ; Bewes on Waste, 166 ; 
 Garth v. Cotton, White & Tudor's Leading Cases in Equity,^ 80&; Wtlds v. 
 Lavton, i Del. Ch. 226 (1822); Phoenix v. Clark, 6 N. J. £.q. 447 (1847) ; 
 pennvvJininsoiL^ Pa. 382 (1857) ; Moses v. Johnson, 88 Ala. 517 (1889). 
 In England tlie~remedies for waste, under the Judicature Act of 1873, are an 
 action'for damages, for an account and for an injunction; Judicature Act of 
 1873, § 25, cl. 3; Annual Practice (1914), P- 1928; Rules of Sup. Ct., Order 50, 
 rule 6; Meu.v v. Coblcy, L. R. (1892) 2 Ch. Div. 253. 
 
 In most states there are express statutory or code remedies for waste 
 which sometimes include a double or treble liability for damages, i Stimson's 
 American Statute Law, §§ 1332, 1343; N. Y. Code Civ. Pro., §§ 1651-1659; 
 Hoolihan v. HooUhan, 193 N. Y. 197; Cal. Code Civ. Proc, § 732; lso)n v. 
 Book, 142 Cal. 666 (1904) ; Riipel v. Ohio Oil Co., 95 N. E. 225 (Ind. 1911)- 
 
 •'''See I A. & E. Encyc. of Law (ist ed.) 128, Title Account Render; 
 article by Prof. Langdell, 2 Harvard Law Rev. 242, 267. 
 
 •'■"'The statement of facts is abridged and the arguments of counsel and 
 part of the opinion of the court are omitted.
 
 l8o AtTlONS 
 
 account: the sliipmoiit to he uiulcr the control of the plaintiff, and 
 the profit and loss to he etiually divided hctwecn theui. That the 
 shipment was accordint;^ly made hy the plaintiff, hut proved unfor- 
 tunate : and the net loss to each of the parties was two thousand six 
 hundred and thirty-four dollars and thirty-three cents. The plain- 
 tiff's counsel admitted that none of the proceeds of the shipment 
 came into the hands of the intestate Clark, in his lifetime, or of his 
 administrators, since his death, and that all the ])roceeds were re- 
 ceived by the plaintiffs. The i)laintift"'s counsel claimed to recover 
 in this suit the sum of four thousand i'ne hundred and twenty dol- 
 lars and fifty-one cents, heinp^ the amount of the net loss on half of 
 the shipment, as above mentioned, with interest to the day of trial, 
 givini:^ the defendant credit for the payments made by him and re- 
 ceived by the plaintiff, as by an account current produced. The plain- 
 tiff's counsel then closed his case. The defendant's counsel offered 
 no evidence. The learned judge being of opinion that the plaintiffs 
 had given no such evidence, as in law was sufficient to maintain the 
 action, ordered a judgment of nonsuit to be entered. And after- 
 wards the court in bank refused to set aside the judgment of non- 
 suit. The plaintiff's then took this writ of error. 
 
 Kexxkdy, J.: It seems to be well settled that the action of ac- 
 count render lay only at common law against a guardfan in socage, 
 bailiff or receiver, and in favor of trade between merchants, i Bac. 
 Abr. tit. Accompt (A) page 32 (Wil.^on's ed.), Co. Lit. 172a. 2 Inst. 
 379. I Roll. Abr. 117, 1. 43. I Com. Dig. tit. Accompt, A i. Bull. 
 N. P. 127. And to maintain it, there must be either a privity in deed 
 ' by consent of tlie party, for against a disseisor or vvrong-doer no 
 account doth lie; or a privity in law, ex provisione legis, made by 
 the law, as against a guardian, etc. i Inst. 172a. But an infant 
 tenant in socage may maintain an action of account render against 
 a stranger who enters into his land and receives the profits thereof ; 
 Fitz. N. B. 117, note a. Inst. 89 b; Cro. Car. 229: which would 
 rather seem to be an exception to the rule that requires privity to 
 maintain the action. The statute of 13 Ed. Ill, ch. 23, gave it to the 
 executors of a merchant; the 25 Ed. Ill, ch. 5, to the administrators. 
 And afterwards, the statute of 3 & 4 Ann. ch. 16, gave the right to 
 maintain it against the executors and administrators of every guard- 
 ian, bailiff and receiver, and by one joint-tenant, tenant in common, 
 his executors and administrators against the other, as bailiff, for 
 receiving more than his share, and against their executors and ad- 
 ministrators."'® Now, upon examination in each of these cases, it 
 will be perceived that the action of account render is only main- 
 
 "" Henderson v. Jiasun, 17 Ad. & El. 70 (1851). OwiiiR principally to 
 the extension of equity jurisdiction, as well as the growth of assumpsit, the 
 common-law action became nearly obsolete in England before the change 
 in procedure. Now a plaintiff may endorse his writ with a claim for an 
 account and a reference will be made under Order XV, rule i, unless there 
 is a preliminary question to be tried. /;/ i-e Cvlion, L. R. (1885), 29 Ch. 
 Div. S34. 
 
 In most of the states the action has been abandoned in favor of the 
 Femedy aflForded by equity, Linton v. Walker, 8 Fla. 144 (1858) ; Field v. 
 BroTiii, 146 Ind. 293 (1906); Church v. Anti-Kalsomine Co., iiS Mich. 219
 
 TIIOURON V. PAUL l8l 
 
 tainable by the plaintiff against the defendant upon the ground that 
 the latter has been entrusted with the care of the lands belonging to 
 the former, and had the capacity at least to receive, if he did not 
 actually receive, the rents and profits thereof for the use of the 
 owner; or v/ith the management and disposition of goods, partly if 
 not wholly belonging to the plaintiff, and been in the receipt of the 
 moneys arising therefrom for the use of the plaintiff, either in part 
 or in whole. Upon this ground, the ward has a right to maintain 
 the action against his guardian in socage ; for as Littleton saith, 
 sec. 123, "such guardian in socage shall not take any issues or profits 
 of such lands or tenements to his own use, but only to the use and 
 profit of the heir ; and of this he shall render an account to the heir 
 when it pleaseth the heir, after he accomplisheth the age of four- 
 teen years." See also i Inst. 89a, 87b, 88a. Fitz. N. B. 118, A. In 
 like manner, for the like reason, the action lies against the bailiff of 
 the plaintiff, by whom, as Lord Coke says, "is understood a servant 
 that hath administration and charge of lands, goods and chattels, to 
 make the best benefit for the owner against whom an action of ac- 
 count doth lie for the profit which he hath raised or made, or might 
 by his industry or care have reasonably raised or made, his reason- 
 able charges and expenses deducted." i Inst. 172a. So according 
 to the same authority, it lies against a receiver on the ground of his 
 having received money for the use of the plaintiff; as, "when one 
 receiveth money to the use of another to render an account ; but, 
 upon his account, he shall not be allowed his expenses and charges. 
 And therefore a man can not charge a bailiff as a receiver ; because 
 then the bailiff should lose his expenses and charges." i Inst. 172a. 
 And for this latter reason, it may be, that a guardian shall not be 
 charged as a receiver, on account of the issues of the land, received 
 by him, before his ward has attained the age of fourteen years ; but 
 for other moneys received by him, he may be charged as receiver. 
 Fitz. N. B. 118. See also note (a) there. To the rule, however, that 
 a receiver shall not be allowed for his expenses and charges, the 
 receptor denarioriim, in favor of merchants, and for advancement 
 of trade and traffic, seems to be an exception, so that he shall have 
 his expenses and charges allowed, but then it would seem that he 
 shall account on the other hand for the profit he has or might rea- 
 sonably have received, i Inst. 172a." And as between merchants. 
 
 (1898); Tilla V. Cook, 77 Va. 477 (1883), and under the system of code 
 procedure has lost its identity, Pico v. Columbet, 12 Cal. 414 ( 1859) ; Wright 
 V. Wright, 50 How. Pr. (N. Y.) 176 (1879) ; Dunn v. Johnson, 115 N. Car. 249 
 (1894) ; Teasley v. Bradley, iioGa. 497 (1900). But in several jurisdictions the 
 action is still in use, Garrity v. Hamburger Co., 136 111. 499 (1891) ; Kemp v. 
 Merrill, 92 111. App. 46 (1900); Bitterling v. D e^shler^ 160 Pa._i (1894); 
 Siccier V. Si eger, 209 Pa. 65 (1904) ; see Enterprise Oil Co. V. N ational Tran- 
 sit to., 172 Pa. "421 (1896), as to the statute ot 4 Anne; Hamilton v. Conine, 
 aOTd". 633 (1868) ; Haydcn v. Merrill, 44 Vt. 336 (1872) ; Black v. Nichols, 
 68 Maine 227 (1878). 
 
 " Sturton V. Richardson, 13 M. & W. 17 (1844) ; Sargent v. Parsons, 12 
 Mass. 149 (1815) ; Gibbs v. Sleeper, 45 Vt. 409 (1873) ; Bredin v. Kingland,., 
 4 Watts (Pa.) 420 (1835) ; McLeciiLJLJdLiidc^sd Pa. 146" (1866). 
 
 A defendant charged with receiving a sum from the plaintiff's hand 
 could wage his law. Y. B. 13 & 14 Edw. Ill (Roll's ed.) 289, pi. '24.
 
 l82 ACTIONS 
 
 who arc copartners in trade, it is also c|uitc clear that at common 
 law the action of acconnl render can onl}' he maintained by one 
 a.!j;ainst the other, upon the j;round that tiie defendant has been en- 
 trnsteil with the goods helonging to iheni, to he disjxjsed of by him 
 for the common lienelit of both, or has received moneys for the use 
 of both. It is thus laid down by Lord Coke, i Inst. 172a, "If two 
 joint merchants occupy their stock, goods and merchandise in com- 
 mon to their common proht, one of them naming himself a merchant 
 shall have an account against the other, naming him a merchant, and 
 shall charge him as receptor denariornm ipsius B. ex quacunque 
 causa ct contractu ad coinniuJiem ulUitatem ipsorum A. & B. pro- 
 vcu'icn' s'lcut per legem inercatoriani rationabilitcr nionstrare po- 
 terit." And such appears to be the form and words of the writ: 
 "We command you (the sheriff), that you summon A, merchant, 
 that justly, etc., he render to B, merchant, a reasonable account for 
 the time in which he was receiver of the money of him the said B, 
 from whatever cause and contract coming, to the common ])rofit of 
 them the said A and B, as by the law of merchants he may reason- 
 ably show that he ought to render to him," etc. Fitz. N. B. 117 D."'^ 
 The receipt of money, therefore, on their joint account by the de- 
 fendant, appears to be the \'ery gist of the action of account render 
 between merchant and merchant, or copartners in trade ; and such 
 appears to have been the imderstanding and decision of this court 
 many years since, in James v. Brozvn (i Dall. 339). This case, I be- 
 lieve, has ever been regarded here as laying down the ground upon 
 which the action may be maintained by a partner in trade against his 
 copartner. That such has ever been considered in luigland the true 
 ground of the action in such case, is evidenced further not only by 
 the form of the writ already noticed, and the declaration which fol- 
 lows the form of the writ, but likewise by the form of the judgment. 
 The judgment is, that the defendant account with the plaintiff. 
 Godfrey v. Saunders (3 Wils. 88, 89 ).-^'' 
 
 But it appears from the evidence adduced in this case by the 
 
 ^l)laintiffs themselves and their own statement, that the amount of 
 
 money claimed by them to be recovered from the defendant, as his 
 
 proportion of the net loss, which accrued, as they say, in transacting 
 
 their partnership business, \vas, in truth, the lialancc of a debt owing 
 
 '•''Jamcx x. Brflzcnc. i Dall. (Pa.) 339 (1788); A>% v. Kelly. 3 Barb. 
 (N TT"4T9^(i848)T IVood v. Morrow, 25 Vt. 340 (1853); Home v. In- 
 (jrahani, 125 111. ig8 (1888). 
 
 "In this action there are two judi;ments, first, on the preliminary trial 
 of the ripht to an accounting the judgment is that defendant account. 
 Auditors are tlien appointed and upon their report a second and final judg- 
 ment is entered for the balance found due. Qrcii^juXMUill^, 5 Binney (Pa.) 
 .S63 (1813); Closson V. Means, 40 Maine 337 (1835); Black v. Nieliols, 68 
 Maine 227 (1878) ; Partridge v. Ryan, 134 111. 247 (1890) ; Lee v. Yanaway, 
 52 111. App. 23 (1893). 
 )C In Pennsylvania, the Act of April 4, 1831, P. L. 492, § i, permits the 
 / jury before whom the action is tried to settle the accounts of the parties. 
 The Act of October 13, 1840, P. L. 7, § 18, provides that after it shall have 
 been found that defendant is liable to account, the court may either appoint 
 auditors or direct a jury to be impaneled to settle the accounts.
 
 TIIOUROX V. PAUL 1 83 
 
 by the defendant to them created by the purchase of goods from 
 them, and was not to be affected in any way by the business of the 
 partnership or its result, whether it turned out to be profitable or 
 otherwise to the parties, and therefore could not upon the principles 
 already laid down for the maintenance of the action of account ren- 
 der be recovered in it. As well might an account stated between the 
 parties be made the subject of recovery in such action. But an ac- 
 count stated, showing a balance due b}- one partner to the other, upon 
 a final settlement of all their partnership transactions, accompanied 
 with an express promise to pay it, wovtld, I take it, be a bar of itself 
 to an action of account thereafter to recover such balance. It would, 
 as it appears to me, be good evidence to support the plea of plene 
 computavit, which is considered a good plea in bar to the action. 
 Godfrey v. Saunders (3 Wils. Rep. 113). Bac. Abr. (by Wilson) 
 38, tit. Accompt. Two notes of hand were here given by the de- 
 fendant to the plaintiffs, containing a promise on his part to pay the 
 debt created by the purchase of the goods ; which would be good 
 evidence, in an action of assumpsit brought by the plaintiffs against 
 the defendant, upon an account stated, to show that they had had an 
 account between them, and that the sum of the notes was thereupon 
 found to be the amount of money coming from the defendant to the 
 plaintiffs. 2 Stran. 719. Chitty on Bills, 366. Clayton v. Gosling 
 (5 B. & C. 360) ; Higlnnore v. Primrose (5 M. & S. 65). Seeing, 
 then, these notes would be good evidence to prove an account stated, 
 the inevitable conclusion would seem to be, that they would be good 
 evidence also to prove the plea of plene computavit. It is also clear 
 that the money mentioned in the notes was to be paid for the pur- 
 pose of launching the partnership ; and if not paid according to the 
 tenor thereof, was recoverable in an action of assumpsit. Venning v. 
 Leckie (13 East 7). And in no other form of action, excepting that 
 or debt, do I conceive that it was recoverable. For it was the price, 
 and a sum certain, that was to be paid by the defendant to the plain- 
 tiffs, at all events, for the goods purchased by him of them ; and 
 could not be said to have arisen out of the partnership entered into 
 between them."'^' 
 
 At first, I misapprehended the facts of this case, and took up the 
 notion that the claim of the plaintiffs against the defendant in it, 
 was founded upon their partnership transactions ; and under that 
 misapprehension, conceived, that although the plaintiffs could not 
 maintain the action of account render, according to the rules of the 
 common law on the subject, yet they might be permitted to have the 
 benefit of such action with us, as a substitute for a bill in equity; 
 seeing we had no court of chancery to resort to, in cases of compli- 
 cated accounts, for the purpose of obtaining a settlement of them ; 
 where, by means of auditors, they could be examined and adjusted 
 with much more accuracy than by a jury."' But upon a more full in- 
 
 / 
 
 ""Accord: Hnlmes v. IVnbrlh, 9 Pa. D. R. 784 (igii) . On the other 
 hand, assumpsit will not He where the duty of the agent is to account only, 
 until an account has been settled. R reside v. Rcesidc . 49 Pa. 322 (1865) ; 
 Bxir t pn V Tf^'nc^ , 2 7 Pa. Super. Ct. 626 (1905)^ 
 
 "Equity jurisdiction in matters of account was conferred on the Su-
 
 } 
 
 184 Actions 
 
 vcstigatioii of the facts of the case, and the principles of equity as 
 well as those of law applica))le to it, I am now satisfied that the plain- 
 titVs can not be considered as ha\inq^svifncTent cause to entitle them 
 to redress, in such form of action, upon either legal or equitable prin- 
 ciples. It is i>eihaps true, that Lord Ilardwicke may have thought 
 that any matter of account, growing out of privity of contract be- 
 tween iKirties, was cognizable by a court of etpiity, when he said in 
 Billion V. Hydf (i Atk. 127, 128), "It is a matter of contract and 
 account; and consetiuently a pro])er subject for the jurisdiction of 
 this court." And it may possibly be that Lord Redesdale entertained 
 a similar opinion, when he said, in O'Connor v. Spaight (i Schoales 
 & Lef. 309), "The ground on which I think this is a proper case for 
 equity is, that the account has become so complicated that a court 
 of law would be incompetent to examine it upon a trial at nisi prius, 
 with all necessary accuracy; and it could appear only from the re- 
 sult of the account, that the rent was not due. This is a principle on 
 which courts of equity constantly act, by taking cognizance of mat- 
 ters which, though cognizable at law, are yet so involved wath a 
 complex account that it can not properly be taken at law ; and until 
 the result of the account, the justice of the case can not appear." 
 But it must be observed, that in each of these cases there were 
 mutual claims and accounts, arising from contract and a course of 
 dealing between the parties, that had been carried on through a series 
 of years; and that the justice of the claim of the plaintiffs here does 
 not necessarily depend upon the result of a final settlement and ad- 
 justment of the partnership accounts. That courts of equity, how- 
 ever, will take cognizance of cases where mutual accounts exist 
 between the parties, founded in privity of contract, is a doctrine 
 which is recognized in both the English and American courts, and 
 acted upon without any limitation or restriction whatever. Deit- 
 li'iddie v. Bailey (6 Ves. 140, 141) ; Wells v. Cooper, cited there; 
 Courtney v. Godshall (9 Ves. 473) ; Porter v. Spencer (2 John. Ch. 
 Rep. 171) ; I Story's Equi. 439, pi. 457, and other cases there re- 
 ferred to."- But it would seem, as if courts of equity will not enter- 
 tain jurisdiction in matters of account, where the accounts to be 
 examined are all on one side only, and no discovery is wanted for the 
 purpose of supporting the account. Barker v. Dacie (6 Ves. 687, 
 688) ; Frietas v. Don Santos (i Younge & Jerv. 574) ; Courtney v. 
 Godshall (9 Ves. 473) ; i Story's Equi. 439, pi. 558, and other cases 
 cited by him in the margin. In such case, Mr. Justice Story, in his 
 
 preme Court and the Common Pleas of Pliiladelphia by the Act of June 13, 
 1840, P. L. 666, § 39, and by the Act of October 13, 1840, P. L. 7, § 19, upon 
 the Supreme Court and all the courts of common pleas in partnership ac- 
 counts and such other accounts as had theretofore been settled by the action 
 of account render. 
 
 ""Equity will take jurisdiction on the ground of account, notwithstand- 
 ing that the accounting involved is on one side only, if it is so complicated 
 as seriously to embarass the remedy at law and in cases where discovery is 
 needed and is sought. But it will not take jurisdiction where there is no 
 relation of trust and the accounting is not complicated and is merely a basis 
 for ascertaining damages." Holland v. Hallahan, 211 V^!l__^22, (1905). See 
 also, .5ii^^£r_v. ^Fonrff r^i4' Pa. 117 (1906); Fischer v. Riehl, 2ig Pa. 505 
 (1908); Paton V. fat on, 156 Pa. 49 (1893). ^
 
 THOURON V. PAUL 185 
 
 valuable Commentary on Equity Jurisprudence, vol. i, page 440, pi. 
 458, lays it down tliat "if no discovery is asked or required by the 
 frame of the bill, the jurisdiction will not be maintainable. And a 
 fortiori when there are no mutual demands, but a single matter on 
 one side, and no discovery is required, a court of equity will not en- 
 tertain jurisdiction of the suit, though there may be payments on 
 the other side, which may be set off; for in such case, there is not 
 only a complete remedy at law ; but there is nothing requiring the 
 peculiar aid of a court of equity to ascertain and adjust the claim. "\ 
 To found the jurisdiction, in case of a claim of this sort, there should 
 be a series of transactions on the one side, and of payments on the 
 other;" for which he cites Wells v. Cooper, cited in Dinwiddie v. 
 Bailey (0 Ves. 139); Foster v. Spencer (2 John. Ch. Rep. 171); 
 Moones v. Lewis (12 Price, Rep. 502) King v. Rossett (2 Younge 
 & Jerv. 33) ; Madd. Ch. Prac. 70, 71. Now this doctrine is directly 
 applicable to the case before us, and goes to show that the plaintiffs 
 could not demand an account even in a court of equity against the 
 defendant. This being the case, it naturally follows that the present 
 action can not be sustained upon equitable principles. It may be 
 observed, however, that Lord Chief Baron Comyns, in his Digest, 
 tit. Chancery, A 2, declares that chancery will oblige any one to give 
 an account for money received by him. But admitting this position 
 to be correct to its fullest extent, and that it is not necessary that 
 there should be mutual accounts, or a requisition of discovery, when 
 the account is all upon one side, as the current of authorities on the 
 subject would seem to evince, in order to give chancery jurisdiction 
 over the case, still it goes to prove that chancery will not take cog- 
 nizance of the matter, unless the respondent be charged by the com- 
 plainant with having received money or something else that he has 
 converted into money for the use of the complainant ; which does not 
 exist in the case under consideration. Upon this view, it appears 
 that the court below were right in nonsuiting the plaintiffs ; and the 
 judgment therefore ought to be affirmed. 
 Judgment affirmed.'^" 
 
 •^'Compare: Woolley v. Osborne, 39 N. J. Eq. 54 (1884); Blodgett v. 
 Foster, 114 Mich. 688 (1897) ; Gleason, &c., Co. v. Hoffman, 168 111. 25 
 (1897) ; McMnllen L. Co. v. Strother, 136 Fed. 295 (1905) ; Miller v. Russell, 
 224 111. 68 (1906) ; Nohle v. Burnett Co., 208 Mass. 75 (1911), with Walker 
 V. Brooks, 125 Mass. 241 (1878) ; Uhlman v. New York L. I. Co., 109 N. Y. 
 421 (1888) ; Rutherford v. Alyea, 54 N. J. Eq. 411 (1896) ; Ellis v. South- 
 western L. Co., 102 Wis. 409 (1899); Fuller v. Davis, 184 111. 505 (1900); 
 Tennessee, &c., Co. v. Fitzgerald, 140 111. App. 430 (1908) ; Mersereau v. 
 Bennett, 62 Misc. (N. Y.) 356 (1909) ; Grieb v. Equitable Soc., 189 Fed. 498 
 (1911) ; Franklin v. Crane, 80 N. J. Eq. 509 (1912). See further i Ames' 
 Cases on Equity Jurisdiction 442.
 
 V iSO ACTIONS - - --t^>t: 
 
 (f) Covenant. 
 
 M'XOV :■. WIIICKLI'.K. ^ 
 
 SuPKF.MK Court of Ai.MiANfA. 1838. 
 
 6 Porter (Ala.) 201. 
 
 Action of covenant. The plaintiffs, Wlicelcr and M'Cdrmick, 
 declarcil against the defendant M'Voy on an indenture sealed by the 
 parties wherein the plaintiffs agreed within live months to erect t\yo 
 three-storv brick buildings for the defendant in the city of Mobile 
 according to certain specifications in a workmanlike manner, for 
 which defendant agreed to pay eight thousand six hundred dollars. 
 The plaintiffs further averred that they fully performed their con- 
 tract except that at the request of the defendant they made divers 
 alterations in the plans not provided for in the indenture and com- 
 lileted the Iniildings as soon as they could be com]-)letcd, which was 
 two months after the time agreed, but the defendant had failed to 
 pay the sum of twenty-three hundred dollars, the last instalment 
 of the contract price. The defendant demurred to the declaration, 
 which demurrer was overruled. There was, subsequently, a trial 
 and a verdict rendered for plaintiff upon which judgment was en- 
 tered. The defendant took a writ of error assigning as error the 
 overruling of the demurrer.''* 
 
 Collier, C. ]. : Several questions were raised in the circuit court, 
 upon the demurrers to the declaration and pleas, w-hich w^ere so dis- 
 posed of, as to make it necessary for an issue of fact to be tried by 
 the iurv, who found a verdict for the plaintiffs, on which judgment 
 was" rendered. At the trial, a bill of exceptions was taken by the 
 defendant below, who prosecutes a writ of error to this court, and 
 assigns the judgment on the demurrers, and the decision of the court 
 excepted to, as causes for reversal. 
 
 We shall only consider the sufficiency of the declaration, which 
 
 ])resents the question, whether an action of covenant will lie upon an 
 
 agreement under seal (to perform certain work), which has been 
 
 modified, or the time of performance enlarged by parol. 
 
 . Covenant can only be maintai ned upon a writi ng under sea l.''^ 
 
 / If a contract be unattested by a seaTT or Is unwntfen. the action by 
 
 I which redress can be had, for a non-])erformance, is debt or assump- 
 
 ' '■' The statement of facts is abridged. 
 
 '■'Covenant can not be maintained except on a deed. Ciitts v. I-rosf, 
 Smith (K. H.) 309 (1813) ; Picrson v. Pierson, 6 N. J. L. 168 (1822) ; Bildcr- 
 hack V. Pounder, 7 N. J. L. 64 (1823) ; Moore v. Jones, 2 Ld. Raym. 1536 
 (1728); Berkeley v. Hardy, s B. & C. 355 (1826); Andrezvs v. Ilerriott, 
 4 Cow. (X. Y.) 508 (182s); LeRoy v. Beard, 8 How. (U. S.) 4.SI (1850); 
 Davis V. J add, 6 Wis. 85 (1857) ; McManns v. Cassid v. 66 Pa. 260 (1870) ; 
 Eu'ings v. Gordon. 49 N. H. 444 ( \^o) ; Trntl v Sp gtts ^j Pa. 3 39 (1878) ; 
 Manning v. Perkins, 86 Maine 419, 29 Atf. 11 14 (.\^9A) \ Simpson v. Ritchie, 
 89 Maine 299 (1913). It is immaterial whether the covenant be implied 
 or express. "If, from the specialty executed by the parties, the law implies 
 such a covenant, it is, as respects the form of action thereon, as if it were 
 incorporated therein in terms." Wilson v. Griszi'old, 9 Blatch. (U. S.) 267 
 C1871), and see Luchv v. Roz.-sec, i A. K. Mar. (Ky.) 217 (1818).
 
 m'voy v. wheeler 187 
 
 sit, or either, according to the subject-matter. If new terms are in- 
 troduced into a contract, other duties imposed, or another day pro- 
 vided for its consummation, it is clear, that the original contract does 
 not remain unimpaired, so that an action would lie for a breach 
 of its stipulations. — If then, no action could be maintained upon the 
 original contract, Vv-hen thus modified, we think it follows that the 
 present action is misconceived. For though the modifications are 
 set out in the declaration, yet they are to be shown by parol, and can 
 not, according to the premises, we have assumed, be made the basis, 
 either in whole or in part of an action of covenant. 
 
 The case of Littler v. Holland [3 Term Rep. 590] was an action 
 of covenant, upon an agreement under seal, to build two houses by 
 a certain day. It appeared on the trial, that the time of performance 
 was enlarged by parol, and that the houses Avere built within the 
 enlarged time. This evidence, it was held, did not support the alle- 
 gation in the declaration, and the plaintiff was nonsuited. 
 
 So, in Brovm v. Miller [3 Term Rep. 590] an action of debt was 
 brought on a bond to submit to arbitration. The condition limited 
 the time for the arbitrator to make his award. The declaration 
 alleged that the time was enlarged by mutual consent, and that the 
 award was made within that time. On demurrer, it was determined, 
 that the remedy on the bond was gone, by the failure to make the 
 award Vv^itliin the time contemplated by its condition. To the same 
 effect, also, is the case of Freeman v. Adams [9 Johns. Rep. 115]. 
 
 In Philips, et al. v. Rose [8 Johns. Rep. 392], the plaintiff agreed 
 to build an oil-mill within a prescribed time, which was enlarged by 
 parol, and the work completed within the enlarged time. — The court 
 held that evidence of the enlargement would not support the declara- 
 tion. And in Jezvell, et al. v. ScJiroeppel [4 Covv'en 565], the court 
 consider the law as settled, "that the plaintiffs, inasmuch as they had 
 not performed, within the time stipulated by the original contract, 
 could not recover upon the covenants contained in it. They could 
 not, in such an action, give evidence of an extension of the time. 
 
 In Langzuorthy v. Smith, [2 Wend. 587] the Supreme Court of 
 New York reaffirm the previous decisions of that court, on the 
 point, and consider it as beyond doubt, that a parol agreement to 
 enlarge the time for the performance of covenants, is good; and 
 that by an enlargement, the remedy upon the covenant itself, is lost, 
 and must be sought upon the agreement enlarging the time of the 
 performance. 
 
 In the case at bar, the declaration shows, that the contract 
 was so materially varied, and the labor of the defendants so greatly 
 increased, that they could not perform it until several monUis after 
 thTexpiration of the day therefor appointed. It will, therefore, fol- 
 low, that the action can not be maintained, and that the plaintiffs 
 must resort to their remedy upon the parol agreement; making the 
 coveharit/so far as material, inducement to the action. 
 
 The judgment is reversed.'''^ 
 
 °° Accord: Sherzvin v. Rut. & B. R. Co., 24 Vt. 347 (1852); Ravinvid 
 V. Fisher, 6 Mo. 29 (1839) ; Manuel v. Campbell, 3 Ark. 324 (1840) ; Phillips 
 & C. Co. V. Seymour, 91 U. S. 646 (1875) ; P'icary v. Moore, 2 Watts (Pa.)
 
 l88 ACTIONS 
 
 TAIT ■:: ATKINSON. 
 
 CoL'KT OF Queen's Bench, Upper Canada, 1845. 
 
 3 U. C. Q. B. 152. 
 
 Tlic plaintiffs declare specially in assumpsit, for the nonpayment 
 by the defendant of a certain sum of money awarded to the plain- 
 tiffs; the award was given, as averred, in accordance with the terms 
 of a written instrument under seal, recited at length in the declara- 
 tion ; no new consideration apart from the deed to support the prom- 
 ise was alleged. 
 
 The defendant demurs, on the ground that the action should 
 have been covenant, and not assumpsit. 
 
 Robinson, C. J., delivered the judgment of the court. 
 
 We are of opinion that this action is strictly founded on the 
 covenant ; upon which therefore the plaintiffs should have sued, 
 and not in assumpsit. The case of Barber v. Harris^'' is much in 
 point. No new consideration is stated for supporting an assumpsit, 
 apart from the deed. What the parties had stipulated for in that 
 instrument w^as, that the house should be paid for to the tenant at 
 the expiration of the term, after being valued by persons appointed 
 by them respectively ; they did appoint persons to value, and the val- 
 uation was made by those persons, and adopted and assented to as 
 the value, as the plaintiff's statement of his case shows. All, there- 
 fore, had taken place which was necessary to enable the plaintiffs to 
 sue under the covenant; and we see no difficulty on account of the 
 valuation having been made on a later day than had been at first 
 agreed on. It would not have been necessary to state any day in the 
 declaration when the appraisers were to determine tlie value ; and it 
 became immaterial, as the value had been ascertained by referees, 
 
 451 (1834) ; Luciani v . Insurance Co., 2 \Miart. (Pa.'L JL67 (1836); Lehigh^ 
 C. &L A', XZa^ jy. tfartan, ^7 Pa. 4'A) ( 1856) ; Carrici^. Dilworth, 59 Pa. 406" 
 (1868). But otherwise where the additional acts are in pursuance of the 
 terms of the speciaUy itself. Potts v. Point Pleasant Land Co., 49 N. J. L. 411 
 (1887) ; Ramsburg v. McCahan, 3 Gill. (Md.) 341 (1845) ; Fry v. Talbot, 106 
 !NId. 43 (1907). Covenant will lie on a specialty, although not fully per- 
 formed if strict performance is prevented by or waived by defendant. 
 District of Columbia v. Camden Iron Works, l8l U. S. 453 (1901) ; il/o«- 
 o cacy B. Co. v. American I. B. M Co.^ 83 Pa. 517 (1877). It has been held" 
 that covenant would lie on a sealed instrument, although the time of per- 
 formance had been extended by parol, if the breaches assigned went only to 
 the manner of performance. Crane v. Maynard, 12 Wend. (N. Y.) 408 
 
 Even in jurisdictions that have abolished the distinctions between forms 
 of actions it sometimes becomes necessarj- to determine what the action 
 would have been before the code ; as where the statute of limitations is to 
 be applied. Hayden v. Patterson, 39 Colo. 15 (1906). 
 
 In Jerome v. Ortinan, 66 Mich. 668, 33 N. W. 759 (1887), it was held 
 that under a statute providing that no deed should be deemed invalid for 
 want of a seal, covenant would lie on an instrument signed but not sealed 
 which would otherwise have been a deed. Accord : Steele v. Curie, 4 Dana 
 (Kv.) 381 (1863; ; Graves v. Sniede's Admr., 7 Dana (Ky.) 344 (1838). 
 
 '■ \ P. & D. 360.
 
 MITCHELL V. Ji'nABB 189 
 
 with the consent of both parties, and subsequently adopted as the 
 vahie.*'^ 
 
 Judgment for defendant on demurrer. 
 
 /^ 
 
 (g) Debt. . ^' 
 MITCHELL V. McNABB. 
 
 Supreme Judicial Court of Maixe, 1870. 
 58 Maine 506. 
 
 On exceptions to the ruhng of Goddard, J., of the Superior 
 Court for the county of Cumberland. 
 
 Debt, "for that the said defendant, at said Portland, on the 30th 
 day of May, A. D. 1870, by his writing obligatory of that date, 
 sealed with his seal and here in court to be produced, therein sold to 
 the plaintiff the good-will of his business and therein agreed not to 
 carry on the boot and shoe business in the city of Portland for one 
 year from tlie date thereof. Yet the said defendant, not regarding 
 his said agreement, did again commence the boot and shoe business 
 in said city of Portland, on the first day of July thereafter, and hath 
 continued to carry on the boot and shoe business in said city of Port- 
 land, from said first day of July to the day of the purchase of this 
 
 •^ Since covenant lies for the breach of a promise under seal and assump- 
 sit for the breach of a simple promise it is evident that they are not con- 
 current remedies. Bulstrode v. Gilburn, 2 Stra. 1027 (1736) ; Tonssaint v. 
 Martinnant, 2 T. R. 100 (1787); Codman v. Jenkins, 14 Mass. 93 (1817) ; 
 Wood v. Edwards, 19 Johns. (N. Y.) 205 (1821) ; Schlencker v. Moxsy, 3 
 B. & C. 789 (1825); Bahcr v. Harris, 9 Ad. & El. 532 (1839); Byrd v. 
 Knighton, 7 Mo. 443 (1842); Myrick v. Slason, 19 Vt. 121 (1847); Mc- 
 Manus & Henry v. C assidy. 66 P a. 260 (1870) ; McKay v. Darling, 65 Vt. 
 639, 27 Atl. 324 (1893) ; Conroy v. Equitable Accident Co., 27 R. I. 467 
 (1906); Drezi' v. Western Union Tel. Co., iii Maine 346 (1913). But a 
 specialty may be evidence in assumpsit. Varney v. Bradford, 86 Maine 510, 
 30 Atl. 115 (1894); Baldwin v. Emery, 89 Maine 496, 36 Atl. 994 (1897); 
 and see Liickey v. Rozvzcc, i A. K. Mar. (Kv.) 295 (1818) ; Marker v. Ken- 
 rick, 13 C. B. 188 (1853). 
 
 Where a specialty contained a promise to pay a sum certain covenant 
 was usually concurrent with debt although the latter action was preferred. 
 Anon. 3 Leon 119 (1585) ; Chawner v. Bozves, Goodb. 217 (1613) ; Frcre v. 
 
 , Style, 133 (1648) ; Lozve v. Peers, 4 Burr. 222s (1768) ; Harrison v. 
 
 Wright, 13 East 343 (1811); Huddle v. Worthington, i Ohio 423 (1824); 
 Taylor v. Wilson, 27 N. Car. 214 (1844) ; Wetumpka, &c., R. Co. v. Hill, 
 7 Ala. 772 (1845) ; A^^w Holland T. Co. v.J^ancastcr Co^, 71. Pa. 442 (1872) ; 
 Outtozvn V. Dulin, 72 Md. 536, 2o'~AiT^l34 (1890). Covenant alone was 
 proper where the specialty called for the 'performance of something other 
 than the payment of a liquidated sum. Watson v. Nairy, i Bibb. (Ky.) 356 
 (1809) ; Scott v. Conover, 6 N. J. L. 223 (1822) ; Wilson v. Hickson, i 
 Blackf. (Ind.) 230 (1822); Jackson v. Waddill, i Stew. (Ala.) 579 (1828); 
 Sims V. Whitlock, 5 Ark. 103 (1843); Fortcnhury v. Tunstall. 5 Ark. 263 
 (1843) ; Haynes v. Lucas, 50 111. 436 (1869) ; Pox River Co. v. Reeves, 68 
 Til. 403 (1873) ; Garland v. McDonald, 41 U. C. Q. B. 573 (1877) ; Morgan 
 V. Guttenberg, 40 N. J. L. 394 (1878).
 
 190 A IT IONS 
 
 writ. And the plaintiff avers tliat the said defendant, by not keeping 
 his said agreement, has damaged Iiini in his liusiness the sum of two 
 hmulred dollars." 
 
 To this deelaration the defendant tiled a general demurrer 
 which the ])lainlilT joined. The presiding judge sustained the de- 
 murrer and adiudged the declaration had; whereuiion the plaintiff 
 alleged exceptions."'' 
 
 Appleton, C .J.: This is an action of debt. The writ is dated 
 October 14, 1870. The declaration sets forth an agreement, under 
 seal, signed by the defendant, in and by which he "agreed not to 
 carry on the boot and shoe business in the city of Portland for one 
 year," from May 31, 1870, and an averment that from the first 
 dav of July he "continued to carry on the boot and shoe business in 
 said city of Portland to the day of the purchase of this writ." To 
 this th.e' defendant demurred, the demurrer was sustained, and the 
 ]->laintiif excepted. The ciuestion presented is whether debt is main- 
 tainable. 
 
 The declaration sets forth no promise to pay any money under any 
 terms orlcdndi'tions, but sunply an agreement to abstain from sell- 
 ing boots and shoes at a particular place and for a stipulated time, 
 and a violation of such agreement. The damages in such case must 
 obviously be uncertain and unliquidated. 
 
 ' Debt lies when one is entitled to receive a certain and licjuidated 
 sum of money, or in case of a bond for the payment of money, or 
 the performance of some acFunder a penalty, or for goods sold and 
 •delivered, etc. "Debt," remarks Richardson, C. J., in Lozvell v. Bel- 
 lozvs, 7 N. H. 391, "js the j)i'oper action, whenever the demand is for 
 a s.um^ertaill,jai"_.is capable of Ix-ing rc;idily rclu -cil to a certainty; 
 but it is not the proper remedy vvhen the demand is rather for 
 unliquidated damages than for money, unless the performance of 
 the contract is secured by a penalty, i Chit. PI. 101."^° "The true 
 
 ""Arguments of counsel omitted. 
 
 '"Grips V. Ingledew, 7 Mod. 87 (1702), 2 Ld. Raym. 814; Van Horn v. 
 Hamilton, 5 N. J. L. 477 (1819) ; Little v. Mercer, 9 Mo. 216 (1845); 
 Knowles v. Eastman, 65 Mass. 429 (1853); Lee v. Gardiner, 26 Miss. 521 
 (1853) ; B aum v. Tomkin, n o Pa. 569 (1885). At early law debt would lie 
 for chattels as well as money. Ames : Parol Contracts, 8 Harvard L. Rev. 
 2--.2. Birkhead v. Wilson, Dyer 24b (i537); Rands v. Peck, Cro. Jac. 618 
 ("1621). In the modern cases it is said that the obligation must be payable m 
 monev, either a sum certain or one that can readily be reduced to certamty. 
 Watson V. M'Nairy, i Bibb (Kv.) 356 (1809); Thayer v. Campbell, 2 Bibb 
 (Kv.) 472 (1811); Strottd V. Shimer, 8 N. J. L. 134 (1825); Cassaday v. 
 Lanqhliu, 3 Blackf. (Ind.) 134 (1832) ; Crockett v. Moore, 3 Sneed (Tenn.) 
 145 dS^^n) ; Mix V. Nettleton, 29 111. 245 (1862) ; Dnngan v. Hcnderhtc, 21 
 Gratt. (Va.) 149 (1871) ; Turpin v. Sledd, 23 Gratt. (Va.) 238 (1873) ; Weiss^y^ 
 Mauch Clumk I.C ch. .s8 Pa. 29.S (1868); Belford v. Woodzvard, 158 111. 122 
 ^1895); Aottinglia-my. Ackiss, no Va. 810 (iQio). But where the obliga- 
 tion is in the alternative to pay money or furnish goods and on failure to 
 exercise the option at a certain time is for money absolutely, then debt 
 lies for the recoverv of such mone}^ Henry v. Gamble, Minor (Ala.) 
 15 (1820); Bradford'v. Steivart, Minor (Ala.) 44 (1821); Taylor v. Meek, 
 4' Blackf. (Ind.) 388 (1837) ;■ Gregory v. Bewly, 5 Ark. 318 (1843) ; Crockett 
 V. Moore, 3 Sneed (Tenn.) 14S (1855); Minnick v. Williams, 77 Va. 758 
 (1883).
 
 YOUNG V. ASHBURNSHAM I9I 
 
 test," remarks Story, J., in Dullard v. Bell, i Mason 543, "is, there- 
 fore, whether the sum to be recovered has, upon the contract itself, 
 a legal certainty." Debt "lies only for the recovery of a sum of 
 money in nuniero, and not where the damages are unliquidated and 
 incapable of being reduced by averment to a certainty." I Chit. PI. 
 iT3;r E)e5F will riot lie on a contract of indemnity against unliqui- 
 dated or unascertained damages. Flannigav. v. Com. Ins. Co., i 
 Dutch. (N. J.) 506; Rutaji v. Hopper, 5 Dutch. (N. J.) 112. As 
 the action of debt is for the recovery of a sum of money, the breach 
 or cause of action complained of must necessarily originate out of 
 the nonpayment of the money previously alleged to be payable. But 
 here there was not and could not be the allegation of any sum of 
 money which the defendant was bound to pay, and for the neglect 
 to pay which he should be held responsible in damages. '^^ 
 Exceptions overruled. 
 
 YOUNG V. ASHBURNSHAM. 
 
 Court of Com:mon Pleas, 1586. 
 
 3 Leonard's Reports 161. 
 
 In an action of debt brought by the administrators of Young 
 against Ashburnham ; the defendant pleaded nihil debet; and the 
 enquest was taken by default. And upon the evidence given for the 
 plaintiff, the case appeared to be this, that the said Young was an 
 innholder in a great town in the county of Sussex where tlie sessions 
 used to be holden ; and that the defendant was a gentleman of 
 quality in the country there; and he, in going to the sessions, used 
 to lodge in the house of the said Young, and there took his lodging 
 and his diet for himself, his servants, and horses : upon which, the 
 debt in demand grew : but the said Young was not at any price in 
 certain with the defendant, nor was there ever any agreement made 
 betwixt them for the same. It was said by Anderson, Chief Justice, 
 "that upon that matter, an action of debt did not lie. And therefore 
 aftervv-ards, the jury gave a verdict for the defendant.'^- 
 
 '^ Debt is distinguished from assumpsit in this, that the latter action 
 must be brought where the object is to recover special damages for non- 
 performance of a parol or simple contract, while debt lies against one 
 under a duty to pay a sum of money ascertained or readily ascertainable. 
 Eib V. Pindall, 5 Leigh (Va.) 109 (1834); Durrill v. Lawrence, 10 Vt. 517 
 (1838) ; Somerville v. Grim, 17 W. Va. 803 (18S1) ; Ec^pMica v. Lgca^c. 2 
 Dall. (Pa.) 118 (1791) ; Knapf> v. Hohokcn, 38 N. J. L. 37TT1876) •,~Kuhcr 
 V. Burke, 11 Serg. & R. 238 (1824). Thus debt lies on a sealed bond, Lcland 
 V. Barry, 69 111. 348 (1873) ; on a judgment, Lee v. Gardiner, 26 Miss. 521 
 (1853) ; on a recognizance, State v. Davis, 43 N. H. 600 (1862) ; for use and 
 occupation, Gray v. Johnson, 14 N. H. 414 (1843). As to collateral prom- 
 ises, compare Bnllard v. Bell, i Mason. (U. S.) 242 (1817), with Gregory v. 
 Thomson, 31 N. J. L. 166 (1865) ; Randall v. Rigby, 4 M. & W. 130 (1838). 
 As to promissory notes, see Mandcville v. Riddle, i Cranch (U. S.) 290 and 
 note p. 367; Cressivell v. Crisp, 2 Dow. Pr. 635 (1834); Bishop v. Young, 
 2 Bqs._& P. 78 (1800) ; Rahorg v. Peyton, 2 Wheat. (U. S.) 385 (1817). 
 
 '" "The writ in debt, like the writs for the recovery of land, was a praecipe 
 quod rcddat. The judgment for the plaintiff is that he recover his debt.
 
 102 ACTIONS 
 
 ARTIU'R DILLTXf.IIAM r. JACOB SKEIN. 
 
 SUPKKMF. COUKT. TkRNITOKV Ol" AkKAXSAS, 1S32. 
 Uciutslcad (r. S.) 181. 
 
 Error to Washington Circuit Court, determined before Benjamin 
 Johnson, Thomas P. Eskridge and I'^hvard Cross, judges.'" 
 
 Opinion of the Court. — This suit was commenced on the fol- 
 lowing writ, before a justice of the peace: 
 
 "Territory of Arkansas, county of Washington. To the con- 
 stable of Prairie Township, county of Wa.shington, greeting: Sum- 
 mons Arthur Dillingham to appear before me, a justice of the peace, 
 on th.e 3d day of June. 1831. at my dwelling-house, between the hours 
 of ten in the forenoon, and three o'clock in the afternoon of said day, 
 to answer Jacob Skein in an action of debt on an open account un- 
 der one hundred dollars. Given under mv hand, this 26th of May, 
 1831. 
 
 " (Signed) Henry Tollett, J. P." 
 
 On the 3d day of June, 183 1, the parties appeared, and after hear- 
 ing the evidence, the justice rendered judgment against the de- 
 fendant Dillingham, in jpavor of the plaintiff Skein, for seventy dol- 
 lars and costs of suit. From this judgment Dillingham prayed an 
 appeal, and at the December term of \Vashington Circuit Court, the 
 parties appeared by their attorneys, and the case was tried by a jury 
 who found for the plaintiff Skein, now defendant in error, seventy- 
 one dollars and seventy-five cents, for which the court rendered 
 judgment to which judgment this writ of error is prosecuted. 
 
 It is objected that debt will not lie upon an open account, and 
 
 In other words, as in the case of real actions, the defendant was conceived 
 of as having in his possession something helonging to the plaintiff which 
 he might not rightfully keep, but ought to surrender. This doubtless ex- 
 plains why the duty of a debtor was always for the payment of a definite 
 amount of money or a fi.Ked quantity of chattels. A promise to pay as much 
 as certain goods or services were worth would never support a count in debt. 
 In Y. B. 12 Edw. IV 9-22, Brian, C. J., said: 'If I bring cloth to a tailor 
 to have a cloak made, if the price is not determined beforehand that I shall 
 pay for the making, he shall not have an action of debt against me.' For 
 the same reason, the qnanlnm viertiit and quantum valebant counts seem 
 never to have gained a footing among the common counts in debt, and in 
 as.sumpsit the quantum meruit and quantum valebant counts were distin- 
 guished from the indebitatus counts. But principle afterwards yielded so 
 far to convenience that it became the practice to declare in indebitatus 
 assumpsit when no price had been fixed by the parties, the verdict of the 
 jur\- being treated as equivalent to a determination of the parties at the 
 time of bargain. 
 
 The ancient conception of a creditor's claim in debt as analogous to a 
 real right manifested itself in the rule that a plaintiff must prove at the trial 
 the precise amount to be due which he demanded in his praecipe quod 
 reddat. If he demanded a debt of £20 and proved a debt of £19 he failed 
 as effectually as if he had declared in detinue for the recovery of a horse 
 and could prove only the detention of a cow." 2 Ames' Parol Contracts Prior 
 to Assumpsit, 8 Harvard Law Review 252, reprinted Select Essays in 
 Anglo-American Legal History, vol. Ill, p. 304. See also, Baugh v. 
 Phillips, I Rolle 257 (1616); Hooper v. Shepherd, 2 Str. 1089 (1738). 
 
 ^ Part of the opinion dealing with other questions is omitted.
 
 DILLINGHAM V. SKEIN 193 
 
 that therefore the writ of summons is erroneous and void. Admit- 
 ting that a mistake in naming the approj)riate form for action in the 
 writ of summons wovild be a fatal error, on which we give no opin- 
 ion, still we think there is nothing in the objection. Debt will lie 
 upon an open account for goods sold and delivered, as well as an 
 action of assumpsit. In the case of Hughes v. Maryland Insurance 
 Company, 8 Wheaton, Rep. 311, Judge Washington says: "Debt is 
 certainly a sum of money due by contract and it most frequently is 
 due by a certain and express agreement, which also fixes the sum, 
 independent of any extrinsic circumstances. But it is not essential 
 that the contract should be express, or that it should fix the pre- 
 cise amount of the sum to be paid. Debt may arise on an implied 
 contract, as for the balance of an account stated, to recover back 
 money which a bailiff has paid more than he had recovered, and in 
 a variety of other cases, where the law, by implication, raises a con- 
 tract to pay. So an action of debt may be brought for goods sold 
 to defendant, for so much as they are worth. In Emery v. Fell, 2 
 Term Rep. 28, in which there was a declaration in debt, containing 
 a number of counts, for goods sold and delivered, work and labor, 
 money laid out and expended, and money had and received ; the 
 court, on a special demurrer, sustained the action, although it was 
 objected that it did not appear that the demand was certain, and 1 
 because no contract of sale was stated in the declaration. This casei 
 proves that debt may be maintained upon an implied, as well as upon; 
 an express contract, although no precise sum is agreed upon. But 
 the doctrine stated by Lord Mansfield, in the case of Walker v. 
 Witter, Douglass, 6, is conclusive upon this point. Hejays it down 
 that debt may be brought for a sum capable of being ascertained, 
 though not ascertained at the time the action was brought. Ashurst 
 and Buller say that wherever indebtitatus assumpsit is maintainable, 
 debt is also.""* United States v. Colt, 1 Peters C. C. Rep. 145. 
 
 '* Accord: Buller's Nisi Prius, 167; Walker v. Witter, Dougl. i (1778); 
 Ayleti'v. Loik'c, 2 Wm. Bl. 1221 (1778); McOuiHin v. Cox, i H. Bl. 249 
 (1789) ; Lord v. Houston, 11 East 62 (1809) ; United States v. Colt, i Peters 
 (U. S. C. Ct.) 145 (1815) ; Hughes v. Union Ins. Co., 8 Wheat. (U. S.) 294, 5 
 L. ed. 620 (1823) ; .Sviitli v. Proprietors, 8 Pick. (Mass.) 178 (1829) ; Bloom- 
 field V. Hancock, i Yerg. (Tenn.) loi (1826) ; Jenkins v. Richardson, 6 
 J. J. Mar. (Ky.) 441, 22 Am. Dec. 82 (1831) ; Young v. Hawkins, 4 Yerg. 
 (Tenn.) 171 (1833) ; Norris v. School District, 12 Maine 293 (1835) ; 
 Hickman v. Searcy, 9 Yerg. (Tenn.) 47 (1836); Van Dusen v. Blum, 35 
 Mass. 229 (1836); Thompson v. French, 10 Yerg. (Tenn.) 452 (1837); 
 Malta ffey v. Petty, i Ga. 261 (1846) ; Furman v. Parker, 21 N. J. L. 310 
 (1848) ; McVicker v. Beedy, 31 Maine 314, 50 Am. Dec. 666 (1850) ; Parker 
 V. Bristol R. Co., 6 Exch. 702 (1851) ; Weiss v. Mauch Chunk I. C o.. 58 Pa. 
 295 (1868) ; Kirk_ v, Hartnian, 63 Pa. 97 (1869) ; National R.rcliaHge Bank 
 V. Abell, 63 Maine346 (1872); Seretto v. Rockland, &c., R. Co.. loi Maine 
 140 (1906). In The Mayor of New York v. Butler, i Barb. (N. Y.) 325 
 (1847), it is said by Strong, P. J., "The distinction is betv/een a claim for 
 the actiial vahie of the work, and ope where the plaintiff seeks to recover 
 unliquidated special damages for the breach of a contract. The former is a 
 debt, the latter is not imtil settled by a judgment. The action of debt can.l 
 in general be sustained for money due on a contract, wherever tlie demand '; 
 is capable of being readily reduced to a sum certain, upon tlie predicated 
 statement of facts." 
 13— Civ. Proc.
 
 194 ACTION'S 
 
 Tlie aciion, then, as described in tlic wril of summons, was not, 
 in our jud«:nnent, misconceived, but was just as approjiriate as indeb- 
 itatus assuinf^sit. The omission to insert the word book before the 
 word account, we do not deem material. We know no distinction 
 between an ojkmi account and a book account ; and each expression 
 conveys the same idea. 
 
 Judgment at'lirmod. 
 
 CORNELIUS DOWD qui tarn r. GIDEON SEAWELL. 
 
 Supreme Court of North Carolina, 183 i. 
 
 3 Dcvcrcux L. (N. Car.) 185. 
 
 Debt, upon tlie statute prescribing the rules to be observed in 
 solemnizing the rites of matrimony. The writ demanded "fifty 
 pounds, which he (the defendant) owes and unjustly detains, to his 
 damage one hundred dollars, due for having solemnized the rites of 
 matrimony between, etc., contrary to the act of the general assembly 
 in such case made and j^rovided." 
 
 Upon nil debet ])leaded, the jury, before his Honor Judge 
 Strange, at ^kloore, on the last circuit, returned the following verdict, 
 "that the defendant does owe the sum of fifty pounds, reduced by 
 the scale to twenty-four pounds ten shillings." His Honor, upon 
 the motion of the defendant's counsel, arrested the judgment, and 
 the plaintiff appealed. 
 
 No counsel appeared for the plaintiff. 
 
 Winston, for the defendant. 
 
 RuFFiN, J. : We think the decision of the superior court right, 
 and that the judgment must be arrested. 
 
 It is an action of debt for the penalty for marrying a couple 
 v.ithout a license. The sum demanded is one hundred dollars ; and 
 the verdict is for twenty-four pounds ten shillings. The Act of 1778^ 
 (Rev. ch. 134) gives a penalty of £50; which, when scaled, amounts I 
 to the sum found by the jury. .J 
 
 It was formerly thought that the action of debt, being for an en- 
 /tire tiling, could not be maintained unless the exact sum — neither 
 more nor less — was recovered. This is not now so considered, nor 
 I has been for a long time. And the rule is, that in actions, where 
 from the nature of the demand the true debt is uncertain, it 
 may be alleged to be large enough to cover the real debt, and 
 there shall be a verdict according to the truth, and judgment 
 thereon. Hence, in debt on simple contract, the declaration is good 
 although the sums demanded in several counts do not amount to or 
 exceed the sum demanded in the writ, or the recital of it in the 
 beginning of the declaration. McOuillin v. Cox, i H. Bl., 249; 
 Lord v. Houston, 11 East 62. And in Aylett v. Lowe, 2 Bl. Rep. 
 1 22 1, it was held, that upon a verdict for £100 in debt for £200, 
 on a wutuatus, there should be judgment for the plaintiff. And so 
 too in debt on a specialty, if the deed does not of itself show^ the
 
 DOWD v. SEAWKLL I95 
 
 certainty of the whole demand, but the extent is matter of proof 
 aliunde, the verdict may be according to the truth, and if it be within 
 the sum demanded, there shall be judgment for the plaintiff, as in 
 Incledon v. Crips, 2 Salk. 658, S. C. 2 Ld. Raym. 814, which was 
 debt on a bond, whereby the defendant obliged himself to pay the 
 plaintiff £35 for every hundred stacks of wood, and he averred 
 that he delivered a certain number of hundred and one half, which 
 came to £182.10. Upon demurrer it was held, that there could 
 be no apportionment on this contract for the half hundred, and 
 therefore the plaintiff could not have judgment for that: but it was 
 further held, that he might remit that, and have judgment for the 
 rest; because the debt might be more or less by matter extrinsic of 
 the deed, and therefore there was no variance between the deed 
 and the verdict. And this observation shows thejrue rule; namely, 
 that where the sum demanded is shown in the declaration to be on a 
 cbntract~or~other matter, which in itself conclusively fixes the 
 amount due thereon, then the recovery must agree with the demand. 
 For the debt on that contract is that or nothing. This is not because 
 in debt a sum in nurnero is claimed, but for the more substantial rea- 
 son, that if the recovery of more or less were allowed, there would 
 be a variance betvveen the allegata and probata, and the declaration 
 would convey to the defendant no information of the cause of action. 
 Where the verdict therefore may stand with the contract set forth 
 in the declaration, and both be true, there shall be judgment. Where 
 the verdict can not be made to accord wnth the contract, there can 
 not be judgment, as in debt on bond for £100, a verdict for $100 
 is not good, because it could not be for the debt created by the spe- 
 cialty sued on. It is the same upon any written instrument, as upon 
 a bond ; if it be declared on as a writing, constituting in itself a sub- 
 stantial contract, as a promissory note. It is not the instrument 
 described, and therefore can not be received in evidence. '^^ 
 
 The same principles apply to actions of debt for penalties given 
 by statutes. As in every case, tlie declaration must set out the mat- 
 ter, whether of contract or law, whereby the demand arises ; so in 
 these actions the plaintiff must show a statute giving the penalty 
 demanded by him, and charge the acts which show the defendant 
 to be guilty of the offense within the statute These allegations are 
 indispensable to enable the defendant to know for what he is sued, 
 and to protect himself by plea in another action for the same matter. 
 Anciently the statute was set out at full length. That was relaxed, 
 and stating it by its title was then allowed. Afterv/ards a general 
 reference to it by alleging the particular penalties given thereby, and 
 
 "In Hickman v. Searcy, 6 Yerger (Tenn.) 47 (1836), it was held that 
 debt would lie for contribution b}' one warrantor in a deed against his co- 
 warrantor, and in Sanders v. Marks, 3 Levinz 429 (1696), debt was held to 
 lie on an agreement under seal to pavxthe proportionable part of the charges 
 of a suit at law. See also, Wetumpka, etc., R. Co. v. Hill, 7 Ala. 772 (1845). 
 But in Long v. Long, i Hill (N. Y.) 597 (1841), it was held that debt would 
 not lie for the breach of a sealed contract to pay a note and save the plain- 
 tiff harmless therefrom where the amount of the note did not appear in the 
 contract and this case is cited with approval in Flanagan V. Camden Mutual 
 Ins. Co., 25 N. J. L. 506 (1856).
 
 Tf)6 ACTIONS 
 
 coiiclmling "against the form of the statute" was held sufficient, upon 
 the irrounds that the court was hound to take notice of all puhlic 
 laws, and that the particular statute was sufficiently identified l)y 
 the statement of the penalty and of the acts forbidden by it. But 
 certainly there must be some description of it : and if there be no ref- 
 erence to it the declaration is bad. Scrntcr v. Harrington, i Hawks 
 192; Myddlcton v. U'ynn, WiLles 599. 
 
 If, however, the statute itself g-ive an uncertain penalty, or a 
 l»enaltv to be measured by reference to some uncertain thing, then 
 the sum demanded is not conclusive on the plaintiff, but he may re- 
 cover according to the certainty made by his y)roof, because he can 
 ( do no more towards a more definite description of the statute or of 
 the debt."" In an action, therefore, for substracting tithes against 
 the Stat., 2d and 3d ed., 6, which gives the treble value, the judgment 
 shall be according to the verdict, though different from the sum de- 
 manded. Pcwbtrton v. Skelton, Cro. Jac. 498. The court say there 
 that the variance is no objection, because the statute gives no cer- 
 tain sum, but only so much in reference to the value; and the value 
 can not be positively estimated until it is done by the jury them- 
 selves. And the judges distinguisli that case from an action grounded 
 on a specialty in which the certainty of the debt appears, and from 
 an action grounded on a statute which gives a sum certain ; in both 
 which the "precise sum must be demanded. This last position is, to be 
 sure, but a dictum in that case, but it is the point of the decision in 
 Cunningham v. Bennett, i Geo., i C. B., stated by Mr. Justice Buller 
 in his Nisi Prius, a book of much authority. There it was held that 
 a penal action could not be for less than the penalty given by the 
 statute; and though the plaintiff had a verdict, judgment w^as ar- 
 rested. I conclude, therefore, that wherever a statute gives a cer- 
 tain sum in numero, that exact sum must be demanded, else it can 
 not be taken to be the penalty given by that statute. Here the decla- 
 ration conforms neither to the act of 1741 nor that of 1778. The 
 former gives £50 proclamation money to the use of the parish, or, 
 by the act of 1777, to that of the county. The latter gives £50, 
 scaled to £24.10, one-half to the informer and the other to the 
 county. Consequently the judgment must be arrested for this 
 reason.'" 
 
 The other objection, that damages are demanded, is not a good 
 one. Thev can not be recovered, but it is not error to demand them." 
 
 " In debt on a statute Kivin^ an uncertain sum by way of penalty the ver- 
 dict is Rood altbouuh a less sum than is demanded is found to be due. 
 United States v. Coll, l Pet. (U. S.) 145 (1815) ; Dopier v. Bray, 2 Hawk 
 (N Car ) 57 (18^2) ; Rockivell v. The State, \i Ohio 130 (1841) ; StockzvcU v. 
 United States, 13 Wall. (U. S.) 531, 20 L e^d. 491 (^^7^)- ., n a 
 
 '■'• She z^-cll v. rd l 1, Yeates (P a.) 11 (1800) ; Martut v. Large, 3 McCord 
 (S r:ir~ 11^ (I '^2,\) ; " k j!.vr!l v. Ch icago, 22 111. 283 (1859). 
 
 ' "Norris v. Film ore, i Yeates ( Pa.) 405 (i794) : Ritchie v Shannon 2 
 Rawle (Pa.i lob ( iS2l?T; r5arnajies in debt are usually nominal. ^WraLy.,^ 
 0'\'eal 4 W & S 130 (1842). Nominal dama},'es are not siven on judgment 
 Ty defaultln dTbt. People v. Ilallett, 4 Cow. (N. Y.) 67 (1825). As to the 
 amount recoverable in debt on a penal bond, see Frazer v. Little, 13 Mich. 193 
 ?i860.
 
 BROOKS v. scott's exr. 197 
 
 The case of Frederick v. Lookup, 4 Burrows 2018, shows this: for 
 the judgment was reversed only as to the damages assessed, and 
 affirmed for the debt, which was the penaUy. 
 
 Judgment affirmed.^^ ^ /a^^<j..-wv. 
 
 (h) Assumpsit. «o__^^ -^--.JrJ^j^ 
 
 BROOKS f. SCOTT'S Exr. '"^ '^ ^^v^ -^ - • .^ 
 
 Supreme Court of Appeals of Virginia, 181 i. 
 
 2 Munford (Va.) 344. 
 
 In an action of assumpsit by Hezekiah Brooks against James 
 Scott, in the county court of Prince Edward, the declaration con- 
 tained four counts, viz. ist. A general indebitatus assumpsit foft '^j^tv'^^/ 
 goods sold and delivered; 2d. A like count for money lent; 3d. A I 
 like count for services done and performed in the capacity of anl 
 overseer; and, 4th. A common quantum meruit for like services. 1 
 At the trial, on the general issue, the plaintiff offered evidence to-' 
 prove that the defendant had acknowledged he had employed the 
 plaintiff as an overseer for the term of three years, and was to pay 
 nim the qnantity of two thousand pounds of tobacco per year ; to 
 which_Jestimony_the .defendant objected; but the objection was 
 overruled by the court, and the evidence permitted to go to the jury ; 
 to which opinion of the court a bill of exceptions was filed. Verdict 
 and judgment for the ])laintiff. Upon an appeal, the district court 
 was of opinion that the county court "acted improperly in admitting 
 evidence to go to the jury, of a special agreement to support the 
 general charges laid in the declaration." The judgment w^as there- 
 fore reversed with costs ; the suit retained for trial, and leave given 
 to amend the declaration ; whereupon the plaintiff obtained a writ 
 of supersedeas from a judge of this court. ^^ 
 
 ■" Debt is the action usually employed to enforce a statutory' duty to pay 
 money or to recover a penalty imposed by statute, if no other specific remedy 
 is provided. Bigclozv v. Cambridge, &c., Co., 7 Mass. 202 (1810) ; Jeffrey v. 
 Blue Hill T. Co., 10 Mass. 368 (1813) ; Billiard v. Bell, i Mason (U. S.) 242 
 (1817); Tilson V, IVarzvick G. L. Co., 4 B. & C. 962 (18251 ; Blackhnni v. 
 Baker, 7 Porter (Ala.) 284 (1837) ; Simouson v. Spencer, 15 Wend. (N. Y.) 
 548 (1836) ; Gav man \. Gamble, 10 Watts (Pa.) 382 (1840) ; Janvrin v. Scam- 
 nwn, 29 N. H. 280 (1854); Love v. Pusey, &c., Co., 3 Penn. (Del.) 577 
 (1907) ; California v. Poulterer, 16 Cal. 514 (i860) ; Orne v. Roberts, 51 N. H. 
 no (1871); Springfield v. Postal Tel. C. Co, 164 111. App. 276 (1911). The 
 remedy may be concurrent with other actions. Geneva v. Cole, 61 111. 397 
 (1871). But if the statute prescribes another form of action, debt will not 
 lie. Smith v. Drew, 5 Mass. 514 (1809) ; M_oy cr v^Kirby, 14 .Sergr {y R (Pa/) 
 162 (1826). In the absence of statutory trrounds debt will not lie for a mere 
 tort. Chamberlin v. Cox, 2 N. J. L. 332 (1807) ; Lads v. Pitkin, 3 Green (Iowa) 
 ■/7 (1851), and see IVilliaws v. Mead, 80 Conn. 434 (1908). 
 
 "'.See Ames' History of Assumpsit, II Harvard Law Review, 1-18, re- 
 printed in Select Essays in Anfiio-Amcrican Legal History, vol. Ill, p. 599; 
 Hare on Contracts (1887), p. 117. 
 
 " Portions of the opinions are omitted.
 
 198 ACTIONS 
 
 Carki.l, J. : Tlic mily ([uestion now to be decided is, whether the 
 evidence was properly admitted, under either count in the declara- 
 tion. The two first counts, being for goods sold and money lent, 
 are so totally variant from the evidence as to be thrown entirely 
 out of view.' Nor do I think the evidence admissible under the 3d 
 count. It is true that, with respect to debts for work and labor, or 
 oflier personal services, the rule is, that, however special the agree- 
 ment was, yet if it was not under seal, and the terms of it have been 
 |)erformed on the plaintiff's i)art, and the remuneration was to be in 
 monev, the party may declare either specially on the original execu- 
 tory agreement, or in indebitatus assumpsit, on the express promise 
 to remunerate (if there was one), or on the promise which the law 
 -implies on the execution of the agreement.^- But this rule, so far as 
 relates to the indebitatus assumpsit count, has never been carried 
 farther than to those cases where the remuneration contemplated by 
 the parties was to be in money. When the remuneration was not to 
 beTn money, but was to be in any other kind of personal property, 
 or in personal services, or in the doing any collateral act (as the 
 delivery of a bond or the like), there, the general indebitatus assuwp- 
 sit count is not sufficient, but the declaration must be special. .^^ J 
 This principle applies, I conceive, with full force to the case now 
 before the court (where the remuneration was to be in tobacco), 
 and proves the error of the county court. 
 
 Every reason for excluding the testimony under the third count, 
 is at least equally applicable to the fourth, or quantum meruit count; 
 for it can not be contended that the latter count admits a greater 
 range of testimony than the former. In fact, they are both emphat- 
 ically termed money counts, "being founded on express or implied 
 promises to pay money in consideration of a, precedent debt." To 
 extend them farther would be to demolish tthe distinction, wisely 
 adopted, between general and special counts, and, with it, all those 
 barriers established for the safety of the defendant, by apprising 
 him of the real nature of the plaintifif's claim, and by enabling him to 
 plead a former recovery in bar of a subsequent action. 
 
 Fleming, J.: The plea was non assumpsit, and issue thereon. 
 The evidence excepted to was, that the defendant had acknowledged, 
 before witnesses, that he had employed the plaintiff as an overseer 
 for three years ; and was to pay him 2,000 lbs. of tobacco per year. 
 
 ^^ Leeds v. Burrows, 12, East i (1810) ; Strcctcr v. Horlock, i Bingh. 34 
 (1822); Bank of Columbia v. Patterson, 7 Cranch. (U. S.) 299 (1813) ; 
 BovAcislcr v. Dohson. 5 Wlia it- d'a.) 398 (1839); Hancock V. Ross, 18 Ga. 
 364 (iSsO ; Tunmson v. J-icld, 21 111. 108 (1859) ; Hosley v. Black, 28 N. Y. 
 438 (1863) ; Morse v. Sherman, 106 Mass. 430 (1871) ; Ford v. Rockivcll, 2 
 Colo. 376 (1874) ; Mc Arthur Brothers v. Whitney, 202 111. 527 (1903)- 
 
 ** Accord: Felton v. Dickinson, 10 Mass. 287 (1813) ; Mitchell v. Gile, 
 12 N. H. 390 (1841) ; IVcart v. Hoagland, 22 N. J. L. 517 (1850) ; Ranlett v. 
 Moore, 21 N. H. 336 (1850) ■,Rastland v. Sparks, 22 Ala. 607 (1853) ; Meyers 
 V. Schemp, 67 111. 469 (1873); Pierson v. Spaulding, 61 Midi. 90 (1886); 
 contra, Crandall v. Bradlev, 7 Wend. (N. Y.) 311 (1831) ; Teplin v. Packard, 
 8 Barb. (X. Y.) 220 (1850) ; St. Louis, &c., Co. v. Soulard, 8 Mo. 665 (1844) ; 
 Pa\ne v. Couch, I Greene (Iowa) 64 (1847) ; Pou'elton Cool Co. v. McShain, 
 75 Pa. 238 (1874) ; McKinnie v. Lane, 230 111. 544 (1907)-
 
 HOLLISTER V. LYON & HEALY 199 
 
 The evidence then proves a special agreement to pay a quantity, of 
 tobacco for certain services, which was allowed to support a gen- 
 eral charge of a sum of money, said to be due for services per- 
 formed as an overseer, which, in my conception, was irrelative to 
 the issue, and tended to take the defendant by surprise. Every 
 plaintiff is presumed to understand his own case, and to know what 
 evidence he can bring forward in support of it ; which ought to ap- 
 ply directly to the charge in the declaration, and not by inference or 
 implication. 
 
 In the case before us, the plaintiff, in order to avail himself of 
 the evidence excepted to, should have brought a special action on 
 the case, stating the agreement, his performance of the services, for 
 which the law would have implied an assumpsit, his demand for the 
 tobacco, and the defendant's refusal to pay: with an averment that 
 the tobacco contracted for was worth so much money, and laid his 
 damages accordingly ; and then the parties would have gone to trial 
 on fair and equal grounds ; and no surprise on cither side. But, as 
 the case appears, the judgment of the county court can not be svis- 
 tained; and was properly reversed by the judgment of the district 
 court, which is affirmed by the unanimous opinion of this court.^* 
 
 \ 
 
 H. L. HOLLISTER v. LYON & HEALY. 
 
 Appellate Court of Illinois, 191 3. 
 177 ///. App. 652. 
 
 Barnes, J. : This was an action of assumpsit on the common 
 counts. The only question that need be considered is whether, on the 
 facts appearing in the record, plaintiff could recover on the common 
 counts only. 
 
 Plaintiff claimed to have returned a pianola, previously bought 
 of_ defendant, with the understanding that he was to be credited 
 with $250 on a piano or orchestrelle which he was to get some time 
 ih'the future — when he got a new house he was building — and for^ 
 vv^hich he v.-as to pay $1,000, He called about three years after- 
 
 *'^A special contract must be declared on specially, indebitatus assumpsit 
 will not lie. Ctittcr v. Powell, 6 T. R. 320 (i7Q5) ; Hull v. Heightman, 2 East 
 145 (1S02) ; ]\'hite V. Woodruff, i Root (Conn.) 309 (1790; Jennings v. 
 Camp, 13 Johns. (N. Y.) 04, 7 Am. Dec. 367 (1816) ; Algeo v. Algeo, ^o S. & 
 ^R^JTaj-^^ (1823) ; Hnrlock v. Murphy, 2 Houst. (Del.) 550 11^27 ; Way- 
 nard v. Tidball, 2 Wis. 34 (1853); Ladue v. Seymour, 24 Wend. (N. Y.)- 
 60 (1840) ; Brozvn v. Fales, 139 Mass. 21 (1885) ; McGonigal v. Raughley, 6 
 Penn. (Del.) 61 (1906); Applebaum v. Goldman, 155 Mich. 369 (1909); 
 Massachusetts C. & R. A. v. Crudcli, 30 R. I. 193 (1909)- Where performance 
 of a special agreement has been prevented by the act or default of the de- 
 fendant the plaintiff has been permitted to recover in indebitatus assumpsit in 
 Moult on V. Trask, 50 Alass. 577 (1845) ; Carrol v. Giddings, 58 N. H. 3^^ 
 (1878) ; Money v. York Iron Co., 82 Mich. 263 (1890). In other jurisdictions 
 it has been held that the plaintiff must declare specially. Rankin v. Darnell, 
 II B. Mon. (Ky.) 30 (1850) ; Harris v. Ligget. i W /^ S. (V7^^ 30J (1841) ; 
 Expardet Metal F. Co. v. Boyt-'e, 233"[I1. 284 (1908) waiver.
 
 2(.X) ACTIONS 
 
 \vaicls ami was uiiablo to tjct any information about the matter from 
 any t)nc ho oonsultcHl in defendant's store, Notbinji^ more was done 
 abnut the matter and he brought this aetion. 
 
 On evidence of sucli facts, the court directed a verdict for $250 
 and accrued interest. 
 
 There was no agreement to pay him money, but simply to give 
 credit for $250 on condition of a sale of either a piano or an 
 orchestrellc. or on a sale that was executory, or where delivery must 
 be made in the future. Under any theory he could not recover on 
 the common counts. Ijidchitafus assumpsit will not lie where the 
 agreement is not for the paj-ment of money but for the doing of some 
 other thing; Myers v. Scheuip, 67 111. 469; nor on an executory con- 
 tract, Cast V. Roff, 26 111. 453; nor for the nondelivery of goods, 
 Seckel v. Scott, 66 111. 196. In such cases the party must declare 
 specially on the contract. 
 
 Assuming that plaintiff had taken the necessary steps to perfect 
 a cause of action, it nevertheless was one for unliquidated damages 
 of which there was no proofs The court erred in directing a ver- 
 dict and denying the motion in arrest of judgment. The judgment 
 Avill be reversed and the cause remanded. 
 
 Reversed and remanded.®' 
 
 X 
 
 EDWARD THOMPSON COMPANY v. KOLLMEYER. 
 
 Appellate Court of Indiana, 1910. 
 46 Ind. App. 400. 
 
 Rabb, J. : Appellant brought an action in general assumpsit 
 against appellee, to recover on an account for goods alleged to have 
 been sold and delivered by api)ellant to appellee. Issues were formed 
 and a trial had, resulting in a finding and iudgment for appellee. The 
 only question presented here is the sufficiency of the evidence to 
 sustain the finding. 
 
 The goods alleged to have been sold were volumes thirteen to 
 thirty-two, inclusive, of the American and English Encvclopedia of 
 Law, volumes fifteen to twenty-three, inclusive, of the Encyclopedia 
 of Pleading and Practice, and volume two of the supplement to the 
 Encyclopedia of Pleading and Practice. The appellant introduced in 
 evidence, without objection, the following vv'ritten order, given by 
 'apj)ellee to appellant : 
 
 "Columbus, Indiana, March 19, 1903; I'.dward Thompson Com- 
 pany, Northport, New York, Gentlemen : Please renew shipments 
 
 '^Accord: Brand v. Henderson, 107 111. 141 (1883); Parmly v. Farrar, 
 169 III. App. 606, 48 N. E. 693 (1897) ; Meyer v. Frcnkil, 113 Ind. 36 (1910) ; 
 Seluihe v. Farrell, 142 App. Div. (N. Y.) 13 (1910) ; Miller v. Walker, 158 
 111. App. 276 (1910) ; Smith v. Young, 179 111. App. 364 (1913) ; Gallup v. 
 Jeffery Co., 86 Conn. 308 (1912), and cases in notes to preceding case. Com- 
 pare Volhnar v. Bayfield Mill Co., 146 Wis. 412 (1911) code.
 
 EDW. TH02MPS0N CO. V. KOLLMEYER 20I 
 
 on my contracts for American and English Encyclopedia of Law, 
 second edition, and Encyclopedia of Pleading and Practice, sending 
 me at once volumes thirteen to twenty-three, inclusive, of the Amer- 
 ican and English Encyclopedia of Law and volumes fifteen to 
 twenty-three, inclusive, of the Encyclopedia of Pleading and Prac- 
 tice, for which I am to pay you $7.50 and $6 per volume respectively, 
 also send me the remaining volumes of the American and English 
 Encyclopedia of Law as published, and the supplement to the Ency- 
 clopedia of Pleading and Practice. The terms on the volumes of the 
 American and English Encyclopedia of Law now published, and the 
 subsecjuent volumes, and on volumes fourteen to twenty-three of the 
 Encyclopedia of Pleading and Practice, I agree to pay as follows : 
 $6.50 cash; balance $10 bimonthly, beginning September i, 1903. j 
 
 C. J. Kollmeyer." \ 
 
 It was shown by other undisputed and uncontradicted evidence 
 that the goods were shipped pursuant to the order, and had been 
 partially paid for by appellee, a balance of $139.50 remaining due. 
 
 Appellee contends that appellant's action, being in general as- 
 sumpsit upon the account, and not based upon the written order, 
 would not be sustained by proof of the v>'ritten order introduced in 
 evidence. 
 
 It is the settled law in this state, that where an express contract 
 has been entered into, and one party has fully performed his part 
 of the contract, so that nothing remains unexecuted but the other's 
 obligation to pay, the party performing his part of the contract may 
 sue the other upon the implied contract to pay for the benefit he has 
 received. Magee v. Sanderson (1858), 10 Ind. 261 ; Peden v. Scott 
 (1905). 35 I"d. App. 370; Board, etc., v. Gibson (1902), 158 Ind. 
 471, and cases cited. 
 
 The special contract marks the maximum of the measure of 
 damages. In this case the undisputed evidence shov/s that the 
 goods were furnished to appellee, at his request, by appellant, and 
 all that remained to be done under the contract was that appellee 
 should pay for them. Under the evidence, appellant was clearly 
 entitled to a fmding and judgment against appellee for the balance 
 remaining due on the purchase price of the books. 
 ^■jTrdgment reversed and a new trial ordered.^*^ 
 
 "•^ Accord: Dees v. Self Bros., 165 Ala. 225 (loio); Marsh v. Frickc, 
 I Ala. App. 64Q (1911); Elliott v. ll'ilson. 25 Del. 445 (igii); Theis v. 
 Svohoda, 166 III. App. 20 (1911) ; Wilson v. Reighard, 230 Pa. 141 (1911) ; 
 Ludzi'ii/ V. P^tsey & Jones Co., 143 App. Div. (N. Y.) 290 (1911); Clymers- 
 Jones Lith. Co. v. IJnltrd .'statrs F ff S: R r.n /|S Pa, Super. Ct. 636 ,(1912) f 
 St. Louis & S. F. R. Co. v. Hall, 65 So. 2>?> (Ala. 1914) ; American Surety Co. 
 V. Fruin B. C. Co., 182 Mo. App. 667 (1914) and cases in note to Brooks v. 
 Scott, supra.
 
 202 ACTIONS 
 
 NEGRO I'ETKR :•. W ILLIAAI STEl-.L. y^ 
 
 S r I'K ': M !•. CquRT_oiL_r-iiN n syixa^n LA,_I-S.o i . 
 
 3 Ycatcs {Pa.) 250. 
 
 This cause was tried at msl hr'r.is, at Lancaster, before the late 
 and iiresent chief justice. The plaintiff declared in a general indeb- 
 itatus assumpsit for work, labor and service, and on a quantum 
 meruit. It was stated, that he was captured during the late revolu- 
 tionary war, witliin the British lines, by the defendant then an Amer- 
 ,ican officer, and lirought into Lancaster county. The defendant 
 /there registered him as a slave, and after being six months within 
 [the state, he v/as discharged by habeas corpus. The action was 
 j brought for remuneration for his services, after he had been six 
 months within the state. The defendant at the trial, excepted to the 
 form of the action, insisting that trespass was the proper remedy; 
 and the court directed a nonsuit, with liberty to move in bank to 
 take it off." 
 
 Yeates, J. : This is a motion to set aside a nonsuit, and the only 
 question is, whether a free negro may not support a general indeb- 
 itatus assumpsit on a quantum meruit, for work, labor and service, 
 against a person claiming, or who formerly did claim to hold him 
 as a slave ? 
 
 On the part of the plaintiff it has been insisted, that where the 
 party has two remedies given by the law, for an injury done to his 
 person or property, he may elect which he pleases. That though 
 trespass and false imprisonment would lie, yet indebitatus assumpsit 
 mav also be maintained. That the party may waive the tort and go 
 for' the sum really due, i Burr. 21, Cooper et al. v. Chitty et ah, 
 2 Ld. Ravm. \2\6,Lamine v. Dorrel; Fellham v. Terry cited Cowp. 
 416, 419.' I Term Rep. 387; Bull. 128. Simpson v. Gisling; Cowp. 
 246, Chenv v. Batten^' 2 Dall. 76, yS,HaIdane v. Duche's exrs. 
 And it has been said, that this form of action is a liberal remedy, 
 like a bill in equity, entrapping no one in form. 2 Bla. Rep. 830. 
 2 Burr. 1012.^^ 
 
 The defendant has contended, that trespass is the specific rem- 
 edy pointed out by law, and that the point of slavery could only be 
 tried in that form of action, or homine replegiando. That the de- 
 ' fendant's holding the plaintiff by force is utterly inconsistent with a 
 I contract express or implied, which must be the ground of every 
 ; assumpsit, i Term Rep. 20. Stokes- et al. \. Lewis et al, lb. 387, 
 Birch V. Wright. And that a recovery in this suit would not be a bar 
 to a future action of trespass. That surprise might be occasioned to 
 
 "' The arguments of counsel are omitted. 
 
 ""Where a plaintiff is entitled to two modes of redress and elects to 
 bring assumpsit, the defendant may raise any defense peculiar to that action, 
 although the same defense would not have been allowed had the other form 
 of action been pursued. SmUli v. Hodson, 4 Durn. & E. 211 (179O ; Duncan 
 V Ware 5 S. & P. (Ala.) 119 (1833); Meredith v. Richardson, 10 Ala. 828 
 (1846).
 
 PETER V. STEEL 203 
 
 the defendant in this form of action and he might not know how to 
 shape his defense. Assumpsit will not lie against an excise officer 
 for an over payment. Cowp. 69, JVhitehread v. Brookbank; nor 
 money paid for the release of cattle distrained for damage feasant, 
 though the distress was wrongful. lb. 414. To support the suit, 
 there must be privity between tlie parties. 2 Dall. 54, 55. Rapalje 
 et al. V. Emory. 
 
 I am not disposed to break in on the boundaries of actions, nor 
 to make any innovation therein. If the defendant would sustain 
 any inconvenience or difficulty in tlie present form of action, or the 
 plaintiff derive an}^ advantage therefrom, I should not feel inclined 
 to support it. 
 
 The argument of surprise in the present suit is most powerful, 
 if well founded. But is not a demand for work, labor and service, 
 an immediate notice to tlie defendant, that for such time as he 
 claimed the plaintiff to be in a state of vassalage, compensation to a 
 reasonable extent is sought for? Would trespass more thoroughly 
 apprize him how to shape his defense, than tlie present form of 
 action ? On the general issue, the defendant may give every thing 
 in evidence, which shows that the plaintiff has no right to recover. 
 Indeed in actions for money had and received, which is a most lib- 
 eral remedy, the objection as to want of notice of the nature of the 
 demand on the face of the pleadings, almost uniforml)^ occurs ; 
 and yet such assumpsits have been sustained notwithstanding. 
 
 In Astley v. Reynolds (2 Stra. 915) detinue or trover was open 
 to the plaintiff, when money was unlawfully extorted by duress of 
 goods, and yet assimipsit was held to lie. In Howard v. Wood (Sir. 
 T. Jon. 126. 2 Lev. 245) and in .Irris v. Stakeley (Mod. 260) it 
 was held, that indebitatus assumpsit Avould lie for the rightful 
 against the Vv'rongful officer, for the profits of an office, as for money 
 had and received. In these cases it was objected, that indebitatus 
 assumpsit would not lie for want of privity, and because there was 
 no contract ; it v/as only a tort, a disseisin and the plaintiff might 
 have brought an assize, and that the defendant took the profits 
 against the will of the plaintiff. "There the question to be tried 
 was, whether the grant of the office was good or bad, but that did 
 appear from the form of the declaration ; nor was it possible for the 
 defendant to be apprized, what title the plaintiff intended to set up. 
 Again, it was not the only remedy, for an assize will lie for an 
 office." Cowp. 416. But the several objections were overruled by 
 the court; because it is an expeditious remedy, facilitates the recov- 
 ery of just rights, and tliis manner of action had long prevailed. 
 2 Jon. 128. 
 
 In Hitchin v. Campbell, (2 Bla. Rep. 829, 830) it was deter- 
 mined, that indebitatus assumpsit will lie for the assignees of a bank- 
 rupt against a creditor who has levied his debt by fieri facias, sub- 
 sequent to the act of bankruptcy. There Lord Chief Justice De 
 Grey observed, that "practice had certainly much extended the 
 action of assumpsit, as a very useful and general remedy. While 
 the action was in its infancy, the courts endeavored to find technical 
 arguments to support it, as by a notion of privity, etc., yet that prin-
 
 204 ACTIONS 
 
 ciplc is tiH) narrow to support these actions in ij^cneral, to the extent 
 to whidi they are admitted. The assignees might have their election 
 to bring either tort or contract, yet they could not bring both; and 
 having elected to bring trover, the judgment in that, bars the action 
 of assiiiiif'sit." 
 
 In I -amine v. Dorrel, 2 Ld. Raym. 1216, the court held, that if 
 one takes goods to which he has no right, and sells them, the owner 
 mav waive the tort and recover the price for which they were sold 
 in indebitatus assumpsit, and that it did not differ from assumpsit 
 for the profits of an office. Lord Chief Justice Holt remarks, that 
 "the defendant may plead recovery in this suit in bar of an action 
 of trover; because by the indebitatus assumpsit, the plaintiff makes 
 and affirms the defendant's act to be lawful; and consequently the 
 sale of the goods is no conversion." This reasoning is highly appli- 
 cable to the case before the court. That a plaintiff may dispense 
 with a trespass or wrong, and proceed for the sum really due, is I 
 apprehend too well established by the cases cited and others, to be 
 now shaken. But he shall not blow both hot and cold at the same 
 time. I Term Rep. 387.*'' 
 
 I proceed now to consider and remark on the authorities adduced 
 bv the defendant's counsel. 
 
 In Whitebread v. Brookbank, Cowp. 69, Lord Mansfield said "it 
 might be of great inconvenience, if the case "should hereafter be 
 made a precedent, that an action for money had and received Avill 
 lie against an officer of revenue for an over payment."^" The reso- 
 lution therefore is founded on principles of general policy, the reve- 
 nue being materially interested in the construction of the statute of 
 I Geo. 3. c. 7. § 6, granting a bounty on the exportation of. beer, 
 made from malted corn. The present is a mere controversy between 
 individuals. 
 
 In Lindon v. Hooper, Cowp. 414, it was held, that an action for 
 money had and received, does not lie to recover back money paid 
 for the release of cattle damage feasant, though the distress were 
 wrongful. The reasons are given : the case is singular and depends 
 on a peculiar system of strict positive law, which has provided two 
 precise remedies, replevin or trespass, in both of which the plain- 
 tiff must specially reply a right of common or some otlier title, as a 
 justification of the cattle being where they were taken. "But if 
 assumpsit might be brought in such a case, the defendant might be 
 surprised at the trial. He could not be prepared to make his de- 
 fense ; he could not tell what sort of right of common, or other 
 justification the j)1aintiff might set up. The plaintiff' might shift his 
 
 "' One who waives the tort and sues in assumpsit is bound by his election. 
 Lythgoe v. Vernon, 5 H. & N. 180 (i860) ; Reynolds v Fenton, 2 P hila. (Pa.) 
 2(>8 (1857) ; JVare v. Percival, 61 Maine 391X1872) ; tinlay v. Hryson, 84 Mo. 
 664 (1884) ; Nicld V. Burton, 49 Mich. 53 (1882) ; Beider v. Fuller, 106 Mich. 
 342 (1895). 
 
 ""McMillan v. Eastman, 4 Mass. 378 (1808) ; Charleston v. Stacy, 10 Vt. 
 :;62 (1838) ; Seitzinjier v. Strinhcraer. 2 2 Pa. 379 (1850) ; Scliool District v. 
 Tehhets, 67 Maine 239~Ti877), but compare Mott v. Pettit, i N. J. L. 298 
 (1795) ; Gibson County v. Harrington, i Blackf. find.) 260 (1823).
 
 PETER Z: STEEL 205 
 
 prescription as often as he pleased, or he might rest upon objec- 
 tions to the regularity of the distress. The plaintiff can never be suf- 
 fered to throw such a difficulty upon his adverse party. Besides as 
 applied to the subject-matter of this question, the action for money 
 had and received could never answer the equitable end for which it 
 was invented, and deserves to be encouraged. For the point to be 
 tried therein, whether the plaintiff's cattle trespassed on the de- 
 fendant's land, may depend on the plaintift''s right, or defendant's 
 right, or the fact of trespassing, or it may depend on mere form. 
 It would be unequal and unjust, as between the parties, to suffer as- 
 sumpsit to be substituted in lieu of an action of trespass, and would 
 create inconvenience by leaving rights of common open to repeated 
 litigation, and depriving posterity of the benefit of precise judg- 
 ments upon record."'*^ 
 
 Lord Mansfield further observed, that "there was a material 
 distinction between the case then before the court and the instances 
 .alluded to at the bar, where the plaintiff is allowed to waive the 
 trespass and bring action for money had and received. In the lat- 
 ter, the relief is more favorable to the defendant. He is liable to 
 refund only v^diat he has actually received, contrary to conscience 
 and equity ; and the plaintiff, by electing this mode of action, eases 
 the defendant of special pleading, and takes the risk of being sur- 
 ])rised tipon himself." 
 
 On the most careful consideration of this case, I am satisfied that 
 not a single reason which influenced the court's decision in Lindon 
 V. Hooper, applies to the case now before us ; and that all the 
 grounds of suffering assumpsits to be brought where the wrong is 
 dispensed with, unite in the present instance, and fortify the mode 
 of action which has been pursued. 
 
 The observation of the court in Rapalje et al. v. Emory, 2 Dall. 
 54, 55, goes merely to the identifying of money and tracing it into 
 the hands of an utter stranger, according to the distinction laid 
 down in Cowp. 200. 
 
 \Miere one does work for another by compulsion, whom he is 
 under no legal or moral obligation to serve, the law will, I think, 
 imply and raise a promise on the part of the person benefited 
 thereby, to make him a reasonable recompence ; and as I have not 
 been'abTe to discover any solid ground of objection against the plain- 
 tiff's sustaining the form in which this action has been conceived, I / 
 am of opinion that the nonsuit should be set aside, and the costs tot 
 await the determination of the suit. Of the merits of the plaintiff's, 
 demand, the jury are the constitutional judges. 
 
 Smith and Brackenridge, justices, concurred; Shippen, C. J., 
 took no part in the decision. 
 
 Nonsuit set aside and new trial awarded. "- 
 
 "'Accord: Webber v. Aldrich, 2 N. H. 461 (1822) ; Colwell v. Perden, 3 
 Watts (Pa.) 327 (1834). ■" 
 
 '■'- Higgins v. Brecn, 9 Mo. 493 (184.S) ; Abbott v. Freemont, 34 N. H. 43 
 (1857); Hickam v. Hickam, 46 Mo. App. 496 (1891), similar to principal 
 case. While assumpsit may be the remedy, the circumstances may be such 
 as to rebut tlie implication of a promise to pay. Uric v. Johnstonj\ P. & W.
 
 20<J ACTIONS 
 
 BOARD Ol' 11K;11W.W C(\M M ISSIONERS 
 V. BLOOAIINGTON. 
 
 Supreme Court t)i- Illinois, 1912. 
 253 ///. 164. 
 
 The Board of Highway Commissioners of the town of Bloom- 
 ington, in McLean County brought an action of assumpsit, based on 
 the common counts, against the city of Bloomington to recover from 
 the said city the amount of taxes collected on property in Bloom- 
 ington township located within the corporate limits of the city of 
 Bloomington and paid over by the collectors of revenue to the city of 
 Bloomington under the third proviso of section 16 of the Road and 
 Bridge Law, as amended in 1909. The taxes in question were levied 
 under sections 13 and 14 of the Road and Bridge Law in 1909 and 
 were collected and paid over to the city in 1910. At the December 
 term, 1910, of this court, in the case of People v. Fox, 247 111. 402, 
 this court held that the third proviso of said section 16 of the Road 
 and Bridge Law was unconstitutional and void, in that it granted a 
 special privilege to certain cities based ujwn a mere arbitrary classi- 
 fication. Upon the assumption that the decision of this court in the 
 Fox case established the right of the board of highway commis- 
 sioners to the money paid over to the city under the unconstitutional 
 proviso of section 16, said highway commissioners brought this 
 action of assumpsit and recovered a judgment for the amount so 
 paid over and $1,384.93 interest. From this judgment the city of 
 Bloomington has prosecuted the present appeal. "'^ 
 
 (Pa.) 212 (1831) ; Sloss I. & S. Co. v. Harvey, 116 Ala. 656 (1897) ; Thomp- 
 son V. Broiik, 126 Mich. 455 (1901). 
 
 The owner .of personal property tojtipusly taken and converted into 
 moiiev or money's worth, may "waive tlietort and sue io .assumpsit. Young 
 V. Marshall, 8 Bingham 43 (1831) ; Russell v. Bell, 10 M. & W. 340 (1842) ; 
 Hanibly v. Trott, Cowpcr 371 (1776), at page 2>7h', D un das v. MuJiloLhcm, 
 35 Pa- 351 (i860) ; Nordcn v. Jones, 22, Wis. 600 (1873I ; 1/ estcott v. Sharp, 
 50 X. T. L. 392 (1887); Chittenden v. Pratt, 89 Cal. 178 (1891); Pryor v., 
 Morgatij 170 Pa. 568 (1895) ; St. John v. Antrim I. Co., 122 Mich. 68 (1899) ; 
 Phelps V. Church, etc., 99 Fed. 683 (1900). But the authorities are in conflict 
 as to whether assumpsit will lie where the chattels have not been sold or dis- 
 posed of. Among the cases denying the right of action are, Jones v. Hoar, 
 5 Pick. (Mass.) 285 (1827); Willet v. Will ct. 3 \ Vatts (Pa.) 277 (1834); 
 Crov.' V. Boyd, 17 Ala. 51 ( 1849) ; l^mTtTrvTSmit h , 43 N. H. 536 (1862) ; Car- 
 son River ll. Co. v. Bassett, 2 Nev. 249 (1866) ; Paine v. McGlinchy, 56 Maine 
 50 (1868); Johnston v. Deverill, 61 111. 316 (1871); Satterlce \ MeHc_L J2(x 
 Pa. 62 (1874 ) ; Grinnell v. Anderson, 122 Mich. 533 (1899); Woodruff v. 
 Zahan, 133 Ga. 24 (1909). Among those supporting the right of action are 
 Terry v. Munger, 121 N. Y. 161 (1890) ; McComb v. Guild, 9 Lea (Tenn.) 
 81 (1882) ; Evans v. Miller, 58 Miss. 120 (1880) ; Gordon v. Bruner, 49 Mo. 
 570 (1872); Braithzi'aite v. Akin, 3 N. Dak. 365 (1893). And see Rees v. 
 Jl'estern P.. Society 44 Pa. Super. Ct. ^381 (1910). 
 
 U here the right of action arises out ot negligence, the injured person 
 can not waive the tort and sue in assumpsit for monej- paid for medical at- 
 tendance. Plefka V. Detroit U. R., 147 Mich. 641 (1907). 
 
 "" Only a portion of the opinion is printed.
 
 HIGHWAY COMMISSIONERS V. BLOOMINGTON 20y 
 
 ViCKERS, J.: Appellant next contends that there can be no re- 
 covery in this action because there is no privity between the parties 
 to the suit and no basis in the evidence for the finding that the 
 money in cjuestion was received by appellant for the use of 
 appellee. 
 
 The action of assumpsit was devised for the purpose of recover- 
 ing damages for the nonperformance of a parol or simple contract. 
 (3 Johns. Cases 60.) The word is derived from the Latin assumere, 
 meaning to assume or to undertake. (Bouvier's Law Diet.) In the 
 law of contracts the word v/as understood as an undertaking, either 
 express or implied, to perform a parol agreement. An "express 
 assumpsit," by the common law, v^-as "an undertaking made orally, 
 by writing not under seal or by matter of record, to perform an act 
 or to pay a sum of money to another." An "implied assumpsit" 
 was defined to be "an undertaking presumed, in law, to have been 
 made by a party from his conduct, although he has not made any 
 express promise." (Bouvier's Lav\^ Diet.) There v'ere two general 
 forms in the action of assumpsit. "Special assumpsit" was brought 
 upon an express contract or promise, while "general assumpsit" was 
 brought upon an implied contract. (2 Smith's Leading Cases, 14.) 
 
 It will thus be seen that there is a general agreement between 
 a special assumpsit and an express contract, and general assump- 
 sit and an implied contract. As ordinarily understood, the only dif- 
 ference between an express contract and an im.plied contract is, 
 that in the former the parties arrive at their agreement by words, 
 either oral or written, sealed or unsealed, while in the latter their 
 agreement is arrived at by a consideration of their acts and conduct. 
 (2 Page on Contracts, sec. 771.) In both of these cases there is, in 
 fact, a contract existing between the parties, the only difference being 
 in the character of evidence necessary to establish it. A familiar 
 illustration of an implied contract is, where one person, in the ab- 
 sence of any express agreement, renders valuable services to an- 
 other which are knowingly accepted by such other, the law will im- 
 ply a promise to pay a fair and reasonable compensation for such 
 services. (McFarlane v. Dawson, 125 Ala. 428.) If an attorney 
 renders services without any express agreement as to the amount of 
 compensation to be received, the law implies a promise to pay him 
 reasonable compensation for the work done. (Miller v. Tracey, 86 
 Wis. 330.) These illustrations are examples of genuine implied con- 
 tracts, in all of which there is some act or line of conduct as a basis 
 for the implication and which furnishes the necessary privity to sup- 
 port the action of general assumpsit. This class of implied con- 
 tracts is som.etimes called contracts implied as of fact (Page on 
 Contracts, supra.) 
 
 After subtracting express contracts and contracts implied in 
 fact, there is still left another large class of obligations, to enforce 
 which the action of general assumpsit is a well established remedy. 
 The principle upon which this latter class of obligations rests is 
 equitable in its nature, and was, like most other equitable principles, 
 derived from the civil law. This obligation was under the civil law 
 designated "quasi-contractus." Stated as a civil law principle, it was
 
 JCX*^ AITKIN S 
 
 "an oMii^ation similar in character to that of a contract, but wliich 
 arises not from an aj2;reenient of parties but from some relation 
 between them or from a voluntary act of one of them, or, 
 stated in other lans^uage, an obli.ji^ation sprinj^ing; from volun- 
 tary and lawful acts of parties in the al)scnce of any agree- 
 ment." (Mowe's Studies of Civil Law, 171; Morey on Roman 
 Law, 371.) In quasi contracts the obligation arises not from con- 
 sent, as in the case of contracts, but from the law or natural 
 equity. "The term was not found in the common law, but it has 
 been taken by writers upon the common law from the Roman law 
 and may be considered now as quite domesticated, even to the ex- 
 tent of being used as the title of a very valuable common-law text- 
 book. Keener on Quasi Contracts." (Bouvier's Law Diet.) Page, 
 in his late work on contracts (vol. 2, p. 1166), in discussing the term 
 "quasi contract" says: "The term 'quasi contract,' while but little 
 used in law, is a term of considerable antiquity in English law. The 
 term 'quasi ex contractu' is used in Bracton to include 'agency, 
 wardship, the division of common property, the distribution of an 
 inheritance, an action arising out of a testament, a suit to require a 
 sum paid not due, and such like'." 
 
 The class of obligations now under consideration, and which 
 are treated in works on contracts as "contracts implied in law," or 
 quasi contracts, are recognized and enforced by common-law courts 
 by means of a general assumpsit. The liability exists from an impli- 
 cation of law that arises from the facts and circumstances indepen- 
 dent of agreement or presumed intention. (Pract v. Daniels, 20 
 Colo. 100.) In this class of cases the notion of a contract is purely 
 fictitious. There are none of the elements of a contract that are nec- 
 essarily present. The intention of the parties in such case is entirely 
 disregarded, while in cases of express and implied contracts in fact 
 the intention is of the essence of the transaction. In the case of 
 contracts the parties fix their terms and set the bounds upon their 
 liability. As has been well said, in the case of contracts the agree- 
 ment defines the duty, while in the latter class of cases "the duty 
 defines the contract." ( Herfcog v. Hertzoq, 2Q Pa. St. 4 68; Cohun- 
 bus, Hocking Valley and Toledo Railzn'ay Co. v Gaffncy\6^ Ohio St. 
 104; 61 N. E. Rep. 152.) The action of assumpsit, under the com- 
 mon counts for money had and received, is an appropriate remedy 
 to enforce the equitable obligation arising from the receipt of money 
 by one person which belongs to another and which in equity and 
 justice should be returned. (Gaines v. Miller, tti U. S. 395; Pauly 
 7'. Pauly, 107 Cal. 8; Brown v. Woodzvord, 75 Conn. 254; Wilson 
 V. Turner, 164 111. 398.) The action is in form ex contractu, but 
 the alleged contract being purely fictitious, the right to recover 
 does not depend upon any principles of privity of contract "betvveen 
 the plaintiff and the defendant and no privity is necessary: "(2 Pa^e 
 on Contracts, sec. 7^9, and cases there cited.) The righ t to re coyer 
 b governed by principles of equity although the action is at Mw. The 
 action is maintainable in all cases where one person has received 
 money or its equivalent under such circumstances that in equity and 
 good conscience he ought not to retain it and which ex aequo et bono
 
 HIGHWAY COM^rISSIONERS V. BLOOMINGTON 209 
 
 belongs to another. (Jackson v. Hough, 38 W. Va. 236; Merchant's 
 Bank v. Barnes, 47 L. R. A. 737.) A few cases illustrating the ap- 
 plication of the principle under consideration will be sufficient to 
 enable us to determine the question now under discussion. 
 
 Where A receives money from X which belongs to B, without 
 B's consent, the general rule is that in the absence of special cir- 
 cumstances B may recover such money from A. ( United States v. 
 Bank, 96 U. S. 30.) Where a sheriff retains money which he claims 
 to be due him as commission, but which legally belongs to a board 
 of education, he is liable in an action for money had and received. 
 (Socorro Board of Education v. Robinson, 7 N. M. 231.) A public 
 quasi corporation, such as a county, which receives taxes and ap- 
 plies them all to its own use when it should pay bonds issued by the 
 town out of such taxes, is liable to such town therefor. (Strough 
 V. Jefferson County, 119 N. Y. 212, 23 N. E. Rep. 552.) Where a 
 county receives money belonging to other persons without authority 
 it must refund to such persons. (Chapman v. County of Douglas, 
 
 107 U. wS. 348.) Where taxes are paid to a county by a sheriff when 
 they should have been paid to a city, the city may recover such taxes 
 from the county. (SaJem-w Marion County, 25 Ore. 449, 36 Pac. 
 Rep. 163.) Where a county is divided and the original county is 
 legally entitled to the taxes when the division was made, but which 
 had not been then paid but the state official through whose hands 
 such taxes passed paid a part thereof to the new county, the orig- 
 inal county may recover such taxes from the new county. (Colusa 
 County v. Glen County, 117 Cal. 434, 49 Pac. Rep. 457.) Where a 
 stockholder receives dividends from a corporation which he knows 
 to be insolvent and that such dividends are paid out of the capital of 
 the corporation, he may be compelled to repay such dividends in an 
 action brought by the receiver of the company. (Warren v. King, 
 
 108 U. S. 389.) Where a school trustee expends money for the 
 actual benefit of township schools which by law he is required to 
 pay over to another school corporation, such township is liable to 
 such corporation for the amount of money thus expended. (Center 
 School Tozvnship v. School Conirs., 150 Ind. 168, 49 N. E. Rep. 961.) 
 In State v. St. Johnsbury, 59 Vt. 332, it was held that where fines 
 were imj)roperly paid to a village instead of tlie county clerk for the 
 use of the state, an action for money had and received was main- 
 tainable by the state against the village. This case reviews many 
 cases, both English and American, and reaches the conclusion that 
 the action was properly brought, and that no privity other than that 
 implied by laws was necessary. 
 
 The facts in the case at bar are, that appellant received from 
 the collectors of taxes the money here sought to be recovered. At 
 the time this money was paid oyer by the collectors and received by 
 appellant there was in the statute a provision which, had it been 
 valid, would have settled the right of appellant to this money. The 
 statute, however, under which this money was received by appel- 
 lant has been declared unconstitutional. To be sure, the decision of 
 this court, declaring said statute unconstitutional, was rendered after 
 14 — Civ. Proc.
 
 2IO ACTIONS 
 
 tho moncv had been paid over to apiicllant. hut this circumstance 
 docs not aiTcct the lethal status of the parties in the least. The rule 
 is universal that an unconstitutional law confers no rij^ht, imposes 
 no duty and afForils no protection. It is in legal contemplation as 
 though no such law had ever been passed. {Norton v. Shelby, 
 iiS U. S. 425.) There being no question of wrongful intention on 
 the part of anyone in connection with this transaction, the unconsti- 
 tutional statute must be eliminated from all consideration. With this 
 statute out of view the situation is simpliiied. We merely have the 
 case of the collectors of taxes voluntarily paying to the appellant, 
 and the appellant voluntarily receiving, public funds which under 
 the law belong to Bloomington township. The money in question 
 must be conclusively presumed to have been levied and paid by tlie 
 taxpayers for the benefit of the only municipality that had a legal 
 right to receive it. The equitable right to this fund follows the legal 
 title thereto. Applying the foregoing principles to tliese facts, we 
 have no hesitation in coming to the conclusion that an action of 
 assumpsit for money had and received to the use of appellee is 
 maintainable to recover the money in question, and that it is not 
 necessary that tliere should be any privity whatever between the 
 parties other than such privity as is imiilied by law, to warrant a 
 recovery.^* 
 
 Judgment afifirmed. 
 
 PARKER V. CLEMMONS. ^ 
 
 Supreme Court of Vermont, 1908. 
 
 80 Vt. 521. 
 
 ;ii'il>^it in the common money cou nts. Plea, the gen- 
 ( i rial by court at the March Term, 1907, Rutland 
 
 County, Waterman, J., presiding. Judgment for the plaintiffs. The 
 defendant excepted. The opinion states the case."^ 
 
 Tyler, J. : Assumpsit with common counts f^ plea, the general 
 issue. It appeared by an agreed statement of facts that the de- 
 fendant was manager of a telephone company and was engaged, 
 with an assistant, in wiring^ a business_block in Eair.Jiaven.; that 
 while so engaged thVassistant, in the defendant's absence from the 
 
 ** Accord: Trowcr v. San Francisco, 152 Cal. 470 (1907), 15 L. R- A. 
 (N. S.) 183 and note; Bxiits Co. v. Jackson, I2g Ga. 801 (1908), 15 L. R. A. 
 (N. S.) 567 and note; Luther v. Wheeler, 73 S. Car. 83 (1905) ; Allsman v. 
 Oklahoma City, 21 Okla. 142 (1908), c. f . ; Phoebus v. Manhattan Social Club. 
 105 Va. 144 (1906), 8 Amer. & Eng. Ann. Cas. 667 and note. 
 
 " The arguments of counsel are omitted. 
 
 "* These are counts framed in certain conventional forms alleging a debt 
 founded on one of the several causes of action from which the law implies a 
 promise to pay, as distinguished from special counts framed upon the particu- 
 lar circumstances of the case. Those usually employed w ere of four kinds : 
 (i), the indebitatus count; (2), the quantum meruit; (3), the quantum vale- 
 bat; (4), the insimnl computassent or account stated. Those arising out of 
 monev transactions were called the money counts. The forms of these counts
 
 PARKER Z'. CLEMMONS 211 
 
 room, accidently overturned a jar of chemical fluid; that the fluid 
 ran out, leaked through the floor into the plaintiff's jewely store 
 and injured various articles therein. The defendant was not em- 
 ployed by the telephone company, but was in charge of the work 
 at the request of the son of the owner of the block, and the assist- 
 ant was also employed by him. When the plaintiff discovered the'\ 
 injury to his goods he sent for the defendant, showed them to him i 
 and informed him that part of them would have to be sent away to ( 
 be repaired. The defendant then promised the plaintiff that he 
 would pay him the amount of the damage when he ascertained what 
 it was. The plaintiff had the goods repaired, showed the bill there- , 
 for to tlie defendant, who at first agreed to pay it, but afterwards i 
 refused unless the owner of the block would pay one-half, which ' 
 the latter would not do. 
 
 No question was made in the argument other than whether a 
 recovery could be had under any of the common counts. 
 "^ Tf is clear that the "work and labor performed" upon the goods 
 were for the plaintiff" and not for the defendant, and the same is 
 true in respect to "money laid out and expended." Indeed, all the / 
 common counts are founded on express or implied promises to pay/ 
 money in consideration of antecedent debts. ^" j 
 
 This case does not fall within either of the first three divisions 
 made in the text-books, — indebitatus assumpsit, quantum meruit, or 
 quantum valehat. The plaintiff contends that the count for an ac- 
 count stated will lie, but we think that his demand does not fall 
 within the definition of an account. It was said by Chief Justice 
 Shaw in Whitwell v. Willard, i Mete. 216 that the primary idea of 
 account computatio, is some matter of debt and credit, or demands 
 in the nature of debt and credit, between parties ; that it implies that 
 one is responsible to another for moneys or other things, either on 
 the score of contract or of some fiduciarv relation. It is doubt- 
 
 were not in accord with the strict rules of pleading, and Lord Holt is stated 
 to have said that he was a bold man who first ventured on them. Hayes v. 
 Warren, 2 Str. 933 (1732), but they firm\y established themselves in practice 
 and practically supplanted special counts for common debts or money de- 
 mands. I Chitty on Pleading, 342. For the forms of the counts in indebitatus 
 assumpsit, see 2 Encyclopaedia of Forms, p. 297. The common counts were 
 made more concise in England by the rules of Trinity Term I William IV, 
 see 7 Bingham 781 (1831). In most of the code states a complaint in the 
 form of the common counts is sufficient. Allen v. Carpenter, 7 N. Y. 476 
 C1852) ; Freeborn v. Glazcr, 10 Cal. 337 (1858) ; Kerstetter v. Richmond, 10 
 Ind. 199 (1858) ; Grannis v. Hooker, 29 Wis. 65 (1871) ; Jones v. Mial, 82 N. 
 Car. 253 (1880) ; Dunnett v. Thornton, 73 Conn, i (1900). Contra: Foerster 
 V. Kirkpatrick, 2 Minn. 210 (185S) ; Boivcn v. Chambers, 3 Ore. 452 (1869).. 
 Since the act of May 25, 1887, P. L. 271, the common counts as such are] 
 obsolete in Pennsylvania. Bank v. Kopit3Sch,ji6i Pa. 134 (1894). In Massa- / 
 chusetts the plaintiff may use one ot the common counts "when the natural I 
 import of its terms correctly describes the cause of action." Revised Laws, 
 ch. 173, § 6, pi. 7; Channan v. Henshaiv, 81 Mass. 293 (i860), or a count on 
 an account annexed may be used, Avhenever the cause of action would be cor- 
 rectlv .described by anv of the common counts at law. Stearns v. IVaslibnrn, 
 73 Mass. 187 (1856). 
 
 '^'Chicago v. Chicago & N. R. Co., 130 III. 300 (1900) ; Stcztart M. Co. v. 
 iron Clad M. Co., 67 N. J. L. 577 (1902).
 
 JIJ ACTIONS 
 
 loss true, however, that it would be sufficient to come within the 
 dcfuiition it the accounts were all on one side, provided the amount 
 were ag^recd to by the parties. Langdon v. Roane's .Idiiir-, 41 Am. 
 Dec. 60 and note. 
 
 The form adopted by Chitty and ever since followed is that, 
 "the defendant accounted with the plaintiff of and concerning divers 
 sums of iiKMiey bf fore then due from the defendant to the ]:)laintiff 
 and then in arrear and unpaid, and that u]K)n such accounting the 
 defendant was found to be in arrear to the plaintiff in a named sum, 
 and that being so found in arrear and indebted, the defendant in 
 consideration thereof undertook and faithfully promised," etc., and 
 the allegation of the breach in this as in the other common counts 
 is: "Yet the defendant, not regarding his said promises, * * * 
 had not, although often requested, as yet paid said sum of money," 
 etc. 
 
 Bouvier defines "account stated" as an agreed balance of ac- 
 count. It was held in Comer v. f/'av, 107 Ala. 300, 54 Am. St. Rep. 
 93, that an account stated is an account balanced, and rendered, with 
 an assent to the balance, express or implied, so that the demand is 
 essentially the same as if a promissory note had been given for the 
 balance. See also, 2 Ency. PI. & Pr. 1024. 
 
 We also refer to some of the earlier authorities. It is said in i 
 Saund. PI. & Ev. 5th. ed., page 47, in respect to a recovery upon 
 this count, that it must be proved that the account was "of money or 
 a debt." It is also there said that an account stated does not alter 
 the nature of the original debt. It wa^ held in Knowles v. Mitchell, 
 13 East 240, that an admission by the defendant that a certain sum 
 was agreed to be paid to the plaintiff for the sale of standing trees, 
 made after the trees had been felled and taken away by the de- 
 fendant, would support a count upon an account stated. It was 
 decided in IVhithead v. Howard, 5 Moore 105, cited in Saunders, 
 that a recovery could not be had upon this count because there was 
 no existing antecedent debt due from the defendant to the plaintiff. 
 U'ilUs V. Jernegan, 2 Atk. 251 ; Peacock v. Harris, 10 East 106."^ 
 
 If the defendant in the present case was primarily liable to tlie 
 
 Slaintift" it was in an action of trespass on the case for a tort. The 
 amages consequent upon the wrongful act were not a proper sub- 
 S ject of book account and were not treated as such by the plaintiff. 
 I He paid for the repairs and took receipted bills for such payments. 
 The plaintiff relies upon this sentence in the opinion in Pozvers 
 V. Insurance Co., 68 Vt. on page 396, 35 Atl. 333, "It is unneces- 
 sarv, in order to support this count (account stated), to show the 
 nature of the original debt, or prove the .specific items constituting 
 the account, but it must appear that at the time of the account a 
 
 ■"An account stated must he founded on previous transactions of a mone- 
 tary character, creatine the relation of debtor and creditor. Allen v. Cook, 
 2 Dowl. 546 (1834) ; Clarke v. I'Vebb, 2 Dowl. 671 (1834) ; Lubbock v. Tribe, 
 ' 3 M. & W. 607 (1838) ; Lock'Mood v. Thome, 11 N. Y. 170 (1854) ; Mellon jf^ 
 Cawpbj JLji Y^- 415 (1849); Chaac v. Chase, 191 Mass. 556 {Kiobp, Flssc"^ 
 Hlonke, liflAo. App. 422 (1907)-
 
 WIIITTAKER V. STANGVICK 213 
 
 certain claim existed, of and concerning which an account was 
 stated." That the court was not considering the right of a party to 
 recover for a tort in an account stated is apparent from the fact 
 that the plaintiff in that case was seeking to recover upon an insur- 
 ance contract and an amount that he claimed had been agreed upon. 
 
 Bradley v. Phillips, 52 Vt. 517, is distinguishable from the pres- 
 ent case. There the parties, being owners of adjoining lands, each 
 had cut logs over the line on the other's land. They settled by an 
 agreement that each should pay the other at specified rates for the 
 logs taken, and the plaintiff had paid the defendant. But the latter, , 
 though having taken the property and having promised to pay for 
 it and having induced the plaintiff to pay for what he had taken, 
 refused to pay the plaintiff. The court held that the question was 
 one purely of contract; that the defendant's agreement was to pay 
 the plaintiff for what logs he had taken ; that nothing remained for 
 him to do but pay over the money, and that the plaintiff could re- 
 cover upon the common counts. The defendant's liability was the 
 same as if he had bought the logs and promised to pay the plaintiff 
 for them. The parties, in legal effect, waived their respective claims 
 for torts, settled their claims and promised to pay each other the 
 sums agreed upon for the logs each had taken, whereupon each be- 
 came the other's debtor. In the case before us the defendant did 
 not become tlie plaintiff's debtor, and upon the authorities he can 
 not recover upon the count for an account stated. 
 
 Judgment reversed and cause remanded.''^ , 
 
 (i) Trespass. ^-^^^"^ * - i>i^\C^^«y?Z .. 
 
 WHITTAKER v. STANGVICK.'^^ A-^-^-^-r^ ^ £^-' 
 
 Supreme Court of Minnesota, 1907. ' ,// P^^'^t 
 
 100 Minn. 386. / '* 
 
 Action in the district court for Otter Tail County to enjoin 
 defendants from constructing certain covers or blinds, from hunt-, 
 ing or shooting ducks or other water fowl therefrom, and from 
 shooting over or across plaintiff's land. The case was tried before! 
 
 "•""In Page v. Page, 21 N. H. 389 (1850), assumpsit was brought on an ac- 
 count stated for damage done by defendant's cattle and for a ladder taken 
 without leave and broken. On the trial evidence was introduced that defend- 
 ant had promised to pay for the damage without fixing any sum. A verdict 
 for these items was set aside, as not recoverable in general indebitatus as- 
 sumpsit. The court, however, added: "It would be difficult, we think, to 
 frame any special declaration according to these facts, that would sho^v a 
 legal consideration for the defendant's promise. There was no. liquidation 
 of the amount to be paid, no acceptance of the defendant's promise by the 
 plaintiff in discharge of the trespass; nothing that in law would amount to an 
 accord; nothing that the defendant could plead in bar to an action of trespass 
 for the original injury." See, also. Gills v. Laing, 4 Camp. 80 (1814) ; Allen
 
 -14 ACTIONS 
 
 Ikixtor. )., who fouiul in favor of the defendants. From an order 
 dcnvini:^ a motion for a new trial, i)laintitT ai)])ealed.' 
 
 J.uxiARP, I.: The plaintitY and appellant son.qht to peri^etualiy 
 enjoin defendants and respondents from construeting covers or 
 blind> on the snrface of a lake in front of a strip of land, to which 
 plaintiil" claimed ownership, sei)arating two navigable lakes; froml 
 hunting or shooting ducks or other water fowl therefrom; and from 
 shooting across or over the strip of land. The court ordered judg- 
 ment for the defendants, after trial. This appeal was taken from tlie 
 order denying a motion for a new trial. The essential question here 
 is whether the decision was justified by the evidence and was con- 
 sistent with law. 
 
 The court found the facts as follows : The plaintiif owned the 
 long, narrow strip, and acci-etions, extending to a creek connecting 
 the waters of the lakes, which formed what is known as a "duck 
 pass." Although there was a public highway over the duck pass, by 
 virtue of an agreement with the supervisors of the township the 
 plaintiif had the right of fishing and hunting thereon to the same 
 extent as though the road had not been laid out. The defendants and 
 \otlier persons wrongfully had previously gone on plaintiff's land at 
 Vhe liighway and shot ducks and water fowl, and now^ threaten to 
 continue to do so. The effect of the acts was to practically monop- 
 olize the shooting privileges and to largely impair the value of the 
 privileges to the plaintiif and her guests. The defendants had been 
 previously restrained by an order of the district court from going 
 upon the highway for the purpose of hunting, and from hunting or 
 shooting ducks or other Avater fowl upon the highway. "That the 
 said defendants have heretofore erected, and intend and threaten to 
 hereafter erect, upon the surface of Upper Ten Mile lake, directly 
 in front of the said pass, and at a distance of about three hundred 
 twenty-five feet from the shore line thereof, certain covers or blinds, 
 w-ith the purpose and intention of shooting therefrom the wald ducks 
 and other water fowl flying over said pass, and that in_iiiinling_said 
 game defendants_areJiable_to shoot ov er plaintiff 's said land. That 
 "said lakeTs'ofTarge extent, and^t is not necessary for the mere pur- 
 pose of hunting or shooting the said wild fowl, that said defendants 
 should locate such cover or blinds at the place above mentioned. 
 That the probable result of such acts on the part of the defendants 
 will be to injuriously affect the facilities for shooting wild fowl 
 afi'orded by said pass ; and as a consequence thereof the value of 
 said shooting privileges wall be to a considerable extent impaired." 
 
 There was testimony to the effect that a shotgun would carry 
 shot "probably four hundred feet, maybe m.ore than that." In con- 
 sequence, when persons in the blind would shoot towards plaintiff's 
 
 V. WoodzL'ard, 22 N. H. 544 (1851) ; Knickerbocker, etc., Co. v. Flail, 3 Nev. 
 194 (1867) ; Ingersoll v. Moss, 44 111. 72 (1891). 
 
 One who would recover under a common count must use a count appro- 
 priatel}' framed with reference to the cause of action. Wertheim v. Fidelity, 
 etc., Co., 72 Vt. 326 (1900) ; Sandusky v. Oil Co., 63 W. Va. 260 (1907). 
 
 ' Part of the opinion of the court is omitted.
 
 WriITTAKER V. STANGVICK 215 
 
 place, "the shot could not help but drop around [plaintiff's] place, 
 on the point, in the woods, or in the timber, or across this point here. 
 A certain amount of the shot would go over the pass. * * * From 
 thirty to fifty per cent, of the shot would go over the land and on 
 the pass. It depends on the winds, and which way the ducks fly. 
 * * * In shooting ducks flying from the north, south, some of these 
 ducks in the ordinary course of shooting naturally would fall when 
 they were killed, on this pass." 
 
 I. The first question is whether the facts found show a tres- 
 pass. Defendants urge that the falling of the shot and of ducks on 
 plaintiff's'^~1and:^not^ ha\-iTTg^ b-een_ s4iown to ''become__a nuisajice, 
 cout^~nrrDlr-^'5'"lufficienr^o'~cOTsHtufe a trespass3qn, the^_part 
 of the defendants. The old ~ maxim that 'the lav/ does not concern 
 iTselt with" trifles' might well be invoked here." This contention in- 
 volves a misapprehension of the law of trespass. 
 
 With respect to damages as an essential, the common law recog- 
 nizes Uvo kinds of actions. In the first class there i s a direct myasion 
 of another'.sj)exson or jiroperty without permission, which is. action- 
 ableper se, or \\ii: ■ • <> rise to a piesumption of at least some 
 ct amage, with out pi o- > i" >'i' any actual damage. Unpermitted contact 
 with the peFs"on" constitutes assault and battery. Unpermitted inva- 
 sion of premises constitutes a trespass quare clausum fregit.^ In the 
 second class, actions on the case, in which the damages are indirect 
 and cons equential, there can be n^^recovery unless the plaintiff 
 sEowsTas an essential part oTTiTs"Tase7 that"3amages , pecuniary in 
 iJindi proximate in sequence, and substantial in extent have resulted. 
 Tntresnass ouare claiisuni frei/if, it is immaterial whether the. g»aM- 
 t!ti:: (if'liarni suitered be .ur*-';t^ Httle, or tma^pizecjable^ It is true that 
 m McConico v. Singleton, 2 i\Iill, Const. 244 (S. C. 1818), Mr. 
 Justice Johnson held that the owner can not prevent others from 
 hunting wild game on uninclosed and uncultivated lands, because to 
 recovei-" in trespass you must prove some actual injury. One quaint 
 reason assigned was the public concern that there should be hunters 
 to form a competent militia to oppose that great danger to free insti- 
 tutions, a standing army. It is elementary that the general rule is 
 otherwise. For example, in Patrick v. Greemvay (see Mellor v. 
 Spateman, i Saund. 346b), the defendant angled in plaintiff's sev- 
 eral fishery, but caught nothing. Plaintiff had a verdict, which was 
 sustained because of the infringem.ent of the right which could here- 
 after be evidence of the exercise of the right by the defendants." 
 And see, as to fisheries, 13 A. & E. Ency. (2d ed.) 584. As to gen- 
 eral rule. Cooper v. Crabtree, per Jessel, M. R., 20 Ch. Div. 592 ; 
 Feise v. Thompson, i Taunt. 121 ; i Street, Foundation of Liability 
 for Tort, p. 19; 46 Cent. Dig. "Trespass," § 15, col. 271 ; Id. § 141, 
 col. 480. Nowhere is the doctrine better expressed than by Lord 
 Holt, in Ashhy v. White, 2 Ld. Raym. 938, i Smith's Lead. Cas. 
 268: "If a man gives another a cuff on the ear, though it cost him 
 nothing, no not so much as a little diachylon, yet he shall have an 
 action; for it is a personal injury. So a man shall have an action 
 against another for driving over his ground, though it do him no
 
 JlO ACTIONS 
 
 daniaj^c; for it is an invasion of his ]>ro]iciiy, and the other has no 
 rit^lit to come there. "- 
 
 It is also entirely immaterial by means of what instrumentality 
 the trespass is committed. See 4O Cent. Dig. "Tresi)ass/' § 8, col. 
 256. One maliciously annoying another by means even of loud 
 noises, consisting of pounding on tin pans, etc., and thereby injur- 
 ing the health and business of the latter, is guilty of trespass and lia- 
 ble for the injuries sustained. ShcUaharger v. Morris, 115 Mo. App. 
 566, 91 S. W. 1005. To the same effect, see Donahue v. Keystone, 
 181 N. Y. 313, 317, 73 N. E. 1 108 (holding specifically that escape 
 of gas from street mains may constitute a trespass), and Adams 
 V. Rivers, 11 Barb. 390. "No doubt," said Landon, J., in For- 
 bell V. City, 164 N. Y. 522, 526, 58 N. E. 644, 646, 51 L. R. A. 
 695, 79 Am. St. 666, "trespass may be committed by the pro- 
 jection of force beyond the boundary of the lot where the pro- 
 jecting instrument is operated. Injuries caused by explosion are 
 familiar instances."^ 
 
 More specifically, in the celebrated case of Pickering v. Rudd, 
 I Starkie 56, i Ames' Cases on Torts, 42, Lord Ellenborough said : 
 "I recollect a case where I held that firing a gun loaded with shot 
 into a field was a breaking of the close. The learned judge on the 
 circuit with me doubted upon the point, but many with whom I 
 afterwards conversed on the subject thought I was right, and the 
 judge himself who at first differed with me was afterwards of the 
 same opinion; but I never yet heard that firing in vacuo could be 
 considered as a trespass. No doubt, if you could prove any incon- 
 venience to have been sustained, an action might be maintained; 
 but it may be questionable whether an action on the case would not 
 be the proper form." To the same effect, see Prezvitt v. Clayton, 5 
 T. B. Mon. 4. If a hunter shoot where he has a right to kill a bird 
 in the air, and step upon the land of another to pick up the dead 
 bird, the act of going onto the land to pick up the bird relates to the 
 act of shooting, and the whole act one transaction, constituting a 
 trespass at common law apart from the statute. Earl, C. J., in 
 Osbond V. Meadows, 12 C. B. (N. S.) 10, 15. And see Mayhew v- 
 Wardley, 14 C. B. (N. S.) 550; State v. Shannon, 36 Ohio St. 
 423, 38 Am. Rep. 599. 
 
 It is true that in some of the cases referred to, and in L. Realty 
 Co. V. Johnson, 92 Minn. 363, 100 N. W. 94, 66 L. R. A. 439, 104 
 Am. St. 677, the holding that trespass or some other enjoinable 
 wrong existed was based upon an abuse of the highway. And see 
 
 -Accord: Dixon v. Con<, 24 Wend. (N. Y.) 188 (1840) ; New England 
 T. & S. C. V. Mather, 68 Vt. 378 (1895) ; Quillen v. Belts, i Penne. (Del.) 53 
 (1897) ; Fisher v. Maysmith, 106 Mich. 71 (1895) ; Hurle y v Jnnrs rfi:; P^' 
 34 (1894) ; Timamis v. Leonard, 121 Md. 583 (191377 
 
 VMiisre a street car leaves the track and knocks down a telephone pole, 
 standing on the side of the street, against a person on his own premises, a 
 trespass is committed. Louisville R. Co. v. .Sweeney, 157 Ky. 620 (1914). 
 So, where animals escape and trespass on the land of an'other, their owner is 
 liable in trespass q. c. f. Dglld Ly. Ferris, 7 W. & S. (Pa.) 367 (1844) ; I'^an 
 Leuven v. Lykc, i X. Y. 5157184HJ!
 
 WHITTAKER V. STANGVICK 217 
 
 Harrison v. Duke (1893), i Q. B. Div. 142; Hickman v. Maisey 
 (1900), I Q. B. Div. 752; Queen v. Pratt, 4 El. & Bl. 865. 
 
 Such cases are, however, at least significant illustrations of the 
 extent to which the strictness of the law of trespass to realt}^ greater 
 than in cases of trespass to the person, has been carried, i Street 
 on Foundation of Liability for Tort, 24. 
 
 Moreover, here the defendants proposed to inclose and make 
 several to themselves that which belonged to the many. Did not 
 the blind amount to "a clandestine encroachment and appropriation 
 of navigable waters, which should be common to the public?" The 
 precise nature, however, of defendants' act, whether it amounted to 
 a purpresture (23 A. & E. Ency. (2d ed.) 528; 7 Words & Phrases, 
 5867), or to nuisance (see People v. Park, 76 Cal. 156, 18 Pac. 141), 
 or to both (see People v. Vanderhilt, 26 N. Y. 287; People v. Gold 
 Run, 66 Cal. 138, 4 Pac. 1152, 56 Am. Rep. 80; The Idlewild, 64 Fed. 
 603, 12 C. C. A. 328), or to neither, need not be here determined. 
 The defendants' right to properly use the navigable lakes did not 
 give tliem any more right to shoot over plaintiff's land than a neigh- 
 boring proprietor would have had to so shoot from his own premises. 
 Tt has been definitely determined in this court that the neighboring 
 proprietor may not lawfully do so. Lamprey v. Danz, 86 Minn. 317, 
 90 N. W. 578. 
 
 The mere fact that damage from falling shot or birds would be 
 insignificant, as has been shown, has no logical bearing at all upon 
 the question. The record, besides, conclusively shows substantial 
 damage to the premises. At common law, trespass or case would 
 have lain.* The inherent danger to landowners from guns in the 
 hands of hunters, often irresponsible and reckless, and sometimes 
 malicious, must be adequately guarded against if the law is to be 
 more than a name. As the hazard from the use or threatened use of 
 dangerous instrumentalities increases, in all branches of the law, 
 the responsibility of the person employing them becomes stricter 
 and may amount to insurance of safety. All remedial resources of 
 law and equity may be exercised to prevent such peril to persons or 
 property, or conduct likely also to result in breach of peace. 
 
 Order reversed.^ 
 
 ^ Liability for consequential i nj uries may result from an acf: which is 
 i tself "a" trespass. in . which case tTTe"miurecl person may sue in trespass or m ay 
 waive the tresp ass and_ sac in case ior tlie consequence s. Branscomh v. 
 Bridges, i B. & C7 145 (1823); Smith v. Goodivin, 2 N. & M. 115 (1833); 
 Knott V. Davis, 6 H. & J. 230 (1824) ; Dalton v. Favour, 3 N. H. 465 (1826) ; 
 Scliner v. Feeder, 7 Blackf. (Ind.) 342 (1845) ; Claflin v. Wilcox, 18 Vt. 60S 
 (1846) ; Jordan v. Wyatt, 4 Gratt. (Va.) 151 (1847) ; Bixhy v. Harris, 26 N. H. 
 125 (1852); Van D resor y. King, 34 Pa. 201 (1859); Wyant v. Crouse, 127 
 Alich. 158 ( ifJSr^T-^t commonlaw a count in trespass can not be joined with 
 a count in case in the same declaration. Cooper v. Bissell, 16 Johns. 146 
 (i8iq) ; Smith v. Rhode Island Co., 26 R. I. 24 (1904), but counts in trespass 
 and case may be joined where they relate to the same subject matter under 
 some codes. Louisville & N. R. Co. v. Higginbotham, 153 Ala. 334 (1907). 
 Compare: Gulf Yellow Pine L. Co. v. Monk, 153 Ala. 358 (1907). 
 
 ° The principal classes of trespass are : 
 
 Trespass to the person, as an assault and battery, false imprisonment,
 
 jlS AlTlOXS 
 
 Li:.\MI': :•. HRAV. , 
 
 Court ov Kixt/s Bkxcii, 1803. 
 
 3 East 593- 
 
 This was an action of trespass, in which tlic phiintiff declared 
 that the defendant with force and arms drove and struck a single- 
 horse chaTse which the defendant \yas then driving along the king's 
 TiTghwav with such great force and violence upon and against the 
 jilaintiff's curricle drawn by two horses, and upon and against the 
 said horses so drawing, etc., and in which said curricle the plaintiff I 
 was then and there riding with his servant, which servant was then! 
 driving the said curricle and horses along the king's highway afore- ' 
 said, that bv means thereof the plaintiff's servant w^as throxyn out 
 of the curricle upon the ground, and the horses ran away wath the 
 curricle, and while the horses were so running away with the cur- 
 ricle the plaintiff, for the preservation of his life, jumped and fell 
 from the curricle upon the ground and fractured his collar bone, 
 etc. Plea, not guilty. 
 
 It appeared in evidence at the trial before Lord Ellenborough, 
 C. T-, at the last sittings at Westminster, that the accident described 
 in the declaration happened in a dark night, owing to the defendant 
 driving his carriage on the wrong side of the road, and the parties^ 
 not being able to see each other; and that if the defendant had kepj 
 his right side there was ample room for the carriages to have passecS 
 without injury. But it did not appear that blame was imputable tol 
 the defendant in anv other respect as to the manner of his driving. 
 Tt was therefore objected for the defendant, that the injury having>' 
 hapi^ened from negligence, and not wilfully, the proper remedy was 
 by an action on the case and not of trespass vi et armis: and the 
 plaintiff was thereupon nonsuited.*' 
 
 Lord Ellf.n borough, C. J.: The true criterion seems to be 
 according to what Lord C. j. \'}eGr (iY~§2YS-iTCScoTrV7Shepl^erd, 2 
 Wm.Blackstone's Rep. 892, \xIi£ib£r,lb.CL,piai]itiLff rf reived an injury 
 byjorce from the defendant. If the injur^ous^ act be the imme diate 
 
 etc. Jhtrst v. Carlisle, .^ P . & W. (Pa.) 176 (1831) ; Petit v. Colmery, 4 Penn. 
 
 (0610266 (I903). , . . . • f ■ . r 
 
 Trc^oass dc bonis asportatis, the unlawful appropriation of or interter- 
 ence with personal propertv. Phillips v. Hall, 8 Wend. (N. Y.) 610 (1832) ; 
 Crazcford v. ]Vatcrson. 5 Fla. 472 (1854); Briswan v. Milters. 26 Ea^^A^j? 
 (1856). The action is frequently concurrent ^vith trover. Stanley V. Gaylord, 
 I Cush. (Mass.) 536 (1848) ; see, also, Dame v. Dame, 43 N. H. 37(1861). 
 
 Trespass qtiare clansiun f regit, an unlawful entry upon or an immediate 
 inj'irv to real propertv in the possession of the plaintiff. Gregory v. Pipe, 
 9 B. & C. 591 (1829) ; 'Ritcker v. McNcely, 4 Blackf. (Ind.) 179 (1836) ; Stnr- 
 gis V. Warren, li Vt. 4^3 (1839) ; Maxzi'ell v. Maxwell, 31 ^faine 184 (1850) 
 Collins Y._££aJis^ 148 Pa. 65 (1892); Kent C. A. Society v. Ide, 128 Mich 
 '~433~~(T90i ) ; Moore v. Dnhc, 84 Vt. 401 (1911); Collier v. Ulster & Del 
 R. Co., 72 Misc. (N. Y.) 274 (191O ; Beasley v. Byrum, 163 N. Car. 3 (1913) 
 It applies to an interest in land only. Burleigh v. Pord, 59 N. H. 536 (1880) ; 
 Stocks V. Booth, I T. R. 428 (1786). 
 
 'The arguments of counsel are omitted.
 
 LEAISIE V. BRAY 219 
 
 result of the force originally applied by the defendant, and the 
 planititf he m-mrea nv it. it i s t he suBj ect of an action of trespass 
 vi et arnus by all the cases both ancient and modern. It is immate- 
 naT vvTiether the injury be wilful or not. As in the case alluded to 
 by my brother Grose, where one shooting at butts for a trial of 
 skill with the bow and arrow, the weapon then in use, in itself a 
 lawful act, and no unlawful purpose in view; yet having accident- 
 ally wounded a man, it was holden to be a trespass, being an imme- 
 diate injury from an act of force by another. Such also was the 
 case of Weaver v. Wood, in Hob. 134, where a like unfortunate 
 accident happened Vv'hilst persons were lawfully exercising them- 
 selves in arms. So in none of the cases mentioned in Scott v. Shep- 
 herd did wilfulness make any difference. If the injury were re- 
 ceived from the personal act of another, it was deemed sufficient to 
 make it trespass. In the case of Day v. Edzvards, 5 Term Rep. 
 648, the allegation of the act having been done furiously was under- 
 stood to imply an act of force immediately proceeding from the 
 defendant. As to the case of Ogle v. Barnes, 8 Term Rep. 188, I 
 incline to think it was rightly decided; and yet there are words there 
 which imply force by the act of anotlier; but, as was observed, it 
 does not appear that it must have been the personal act of the de- 
 fendants; it is not even alleged that they were on board the ship 
 at the time ; it is said indeed that they had the care, direction, and 
 management of it; but that might be through the medium of other 
 persons in their employ on board. That therefore might be sus- 
 tained as an action on the case, because there were no words in the 
 declaration which necessarily implied that the damage happened 
 from an act of force done by the defendants themselves. I am not 
 aware of any case of that sort where the party himself sued having 
 been on board this question has been raised. But here the defendant 
 himself was present, and used the ordinary means of impelling the 
 horse forward, and from that the injury happened. And therefore] 
 there being an immediate injury from an immediate act of force by 
 the defendant, the proper remedy is trespass; and wilfulness is noil 
 necessary to constitute trespass. ' 
 
 Grose, J. : I am of the same opinion. Looking into all the cases 
 from the year book in the 21 H. 7 down to the latest decision on the 
 subject, I find the principle to be, that if the injury be done by the 
 act of the party himself at the time, or he be the immediate cause of 
 it, though it happen accidentally or by misfortune, yet he is answer- 
 able in trespass. The case mentioned from Strange, that in Hobart, 
 and those in the Term Rej)orts, all agree in the principle. 
 
 Lawrence, J. : I am of the same opinion. It is more convenient 
 that the action should be trespass, than case ; because if it be laid in 
 trespass, no nice points can arise upon the evidence by which the 
 plaintiff may be turned round upon the form of the action, as there, 
 may in many instances if case be brought; for there if any of the 
 witnesses should say that in his belief the defendant did the injury 
 Avil fully, the plaintiff will run the risk of being nonsuited. But in ac-^ 
 tions of trespass the distinction has not turned either on the lawful- 
 ness of the act from whence the injury happened, or the design of
 
 J JO ACTIONS 
 
 the ivnrlv doins^ it to commit the injury; but, as mentioned by Mr. 
 Justice Rlackstone in the case of Scolt v. S/tcphcrd, 2 Blac. Rep. 
 895, on the difference between injuries direct and biuncdiate, or 
 mediate and conseijucntial ; in the one_ instance the remedy is by tres- 
 pass, in tlic other by case. The same principle is laid down in IRey- 
 nolds V. Clarke, 2 Ld. Raym. 1402. As to Ogle v. Barnes, I certainly 
 did not mean to say that the distinction turned on the wilfulness of 
 the act ; 1 only made use of the word zviifiil to distinguish that from 
 other cases which had been mentioned where the injurious acts were 
 averred to be ivilfully done, and where as the acts com])lained of 
 were charged as intentional, and the injuries done immediately re- 
 ferred to them, trespass was determined to be the proper remedy. 
 And so I understand what was tliere said by my brother Grose. 
 \\'hat I principally relied on there was, that it did not appear that 
 the mischief happened from the personal acts of the defendants; 
 it might have happened from the operation of the wind and tide 
 counteracting their personal efforts at the time ; or indeed they might 
 not even have been on board. Alleging that the defendant negli- 
 gently did such an act may be sustained by proof that it was done 
 by his servant in his employ in the absence of the master, according 
 to Michael v. Alestree, 2 Lev. 172, followed up by Brucker v. Fro- 
 mont, 6 Term Rep. 659. Those were actions on the case, and are 
 reconcilable with M'Manus v. Crickett, i East. 106, in which case 
 the court held that trespass would not lie against a master for the 
 wilful act of his servant in driving his master's carriage against 
 another's carriage, against the will of his master. 
 
 Le Blanc, J.: In many of the cases the question has come be- 
 fore the court upon a motion in arrest of judgment, where the 
 court in determining whether trespass or case were the proper rem- 
 ,edy, have observed on the particular language of the declaration. 
 'But in all the books the invariable principle to be collected is, that 
 where the injury is immediate on the act done, there trespass lies; 
 but where it is not immediate on the act done, but consequential, 
 there the remedy is in case. And the jlistinctionjj^ well instanced by 
 the example put of a man's" tlirowing a log into the highway: if at 
 the time of its being thrown it liit any jK'i.son, it i s trespass ; btiL Ji 
 aftexj.t beJlHiQwivaiiy person going along the road receive an iajury 
 'By falling over it as it lies there_, it is case.J Neither does the degree 
 of violence with which the act is done make any difference; for if 
 the log were put down in the most quiet way upon a man's foot, it 
 would be trespass; but if thrown into the road with whatever vio- 
 lence, and one afterwards fall over it, it is case and not trespass. 
 So here, if the defendant had simply placed his chaise in the road, 
 and the plaintiff had run against it in the dark, the injury would 
 not have been direct, but in consequence only of the defendant's pre- 
 vious improper act. Here, however, the defendant was driving the 
 carriage at the time with the force necessary to move it along, and 
 the injury to the jtlaintiff happened from that immediate act; there- 
 
 ' This illustration is given by Fortescue, J., in Reynolds v. Clarke, i Str. 
 634 0725)-
 
 ADAMS V. HEMMENWAY 221 
 
 fore the remedy must be trespass ; and all the cases will support that 
 principle. It is chiefly in actions for running down vessels at sea 
 that difficulties may occur ; because certainly the force which occa- 
 sions the injury is not so immediate from the act of the person 
 steering. The immediate agents of the force are the wind and waves, 
 and the personal act of the party rather consists in putting the ves- 
 sel in the way to be so acted upon ; and whether that may make any 
 difference in that case I will not now take upon me to determine. 
 But here, where the personal force is immediately applied to the 
 horse and carriage, the things acted upon and causing the damage, 
 like a finger to the trigger of a gun, the injury is immediate from 
 the act of driving, and trespass is the proper remedy for an immedi- 
 ate injury done by one to another; but where the injury is only 
 consequential from the act done, there it is a case. 
 
 Rule to set aside nonsuit made absolute.^ . jt'^.^v"*— 
 
 /y^f^z^-L^^^ "^x^C"^—^ 
 
 / 
 
 ADAMS V HEMMENWAY. -'^• 
 Supreme Judicial Court of Massachusetts, 1804. 
 
 I Mass. 145. 
 
 In this case, "the defendant was attached to answer to the plain- 
 tiff in a plea of trespass, for the plaintiffs, at K., on the — day of — , 
 being owners and proprietors of a certain schooner called the 
 Charles, of the burden of , then and there, on the said day, de- 
 spatched the said vessel, duly fitted and equipped, under the com- 
 mand of one Charles Adams, master of said vessel, on a voyage for 
 P., in order to bring back a cargo of lumber from said P., and while 
 said vessel was so proceeding on her voyage aforesaid, on the — 
 day of — aforesaid, about three leagues from tlie land, to wit, at 
 Plymouth aforesaid, the defendant being then and there sailing in a 
 certain boat or vessel, the name of which is to the plaintiffs tm- 
 known, then and there, with force and arms, made an assault on 
 
 ^Accord: Gates v. Miles, 3 Conn. 64 (1819); Perexval v. Hickey, 18 
 Johns. (N. Y.) 256 (1820); Rappclyea v. Halsc, 12 N. J. L. 257 (1831) ; 
 Painter v. Baker, 16 111. 103 (1854). Compare Williams v. Holland, 10 Bing. 
 112 (1833). Trespass will lie for beating a drum in the highway where a 
 wagon and team are passing, causing the horses to take fright and run away. 
 Loithz V. Hafner, i Dev. (N. Car.) 185 (1827). See, also, Cole v. Fisher, il 
 Mass. 137 (1814) ; Gnille v. Sivan, 19 Johns. (N. Y.) 381 (1822) ; Johnson v. 
 Perry, 2 Humph. (Tenn.) 569 (1842) ; Brennan v. Carpenter, i R. I. 474 
 (1849) ; Ma her v. Ashmead, 30 Pa. 344 (1858) ; Richer v. Freeman, 50 N. H. 
 420 (187077 
 
 While statutes have in many states abolished the procedural distinction 
 between trespass and case, it is generally held that the substantive rights and 
 liabilities of the parties are not thereby afifected. Blalock v. Randall, 76 111. 
 224 (1875) ; Chicago T. & T. Co. v. Core, 223 111. 58 (1906) ; Cannon v. Hor- 
 sey, I Houst. (Del.) 440 (1857); Pruitt v. FJlington, 59 Ala. 455 (1877); 
 Rogers v. Duhart, 97 Cal. 500 (1893) ; Lawry v. Lawry, 88 Maine 482 (1896) ; 
 Eujrhj^ Q q.Uinun^ A^ Pa. Super. Ct. 578 (1900) ; Suicr v. Wenatchee IV. F. 
 Co.. 35 Wash. I (1904). Compare Coe v. English, 6 Houst. (Del.) 456 (1881).
 
 ACTIONS 
 
 the aforesaid vessel called the Charles, owned by the plaintiffs as 
 afi>resaid, and iired and discharj^ed at the said vessel, and master 
 and crew therein, a musket or lire-arm loaded with gunpowder and 
 lead, and with the same grievously and danj^erously wounded the 
 said Charles Adams, master of the plaintiff's' vessel, so that, for the 
 jireservation of the life of said Charles Adams, the crew on board 
 the plaintiff's' vessel were com])elled to return therein to K. afore- 
 said, and the jilaintiffs' intended voyage aforesaid has been broken 
 up and defeated, and the plaintiff's have thereby lost all the freight- 
 monev which they might have earned and gained in the intended 
 Aovage aforesaid, together with the passage-money for sundry pas- 
 sengers, who had then and there taken and engaged a passage to P. 
 in said vessel ; and other outrages the defendant then and there com- 
 mitted on the plaintiff's vessel, against the peace, etc." 
 
 Upon hearing the declaration read, the whole court (Strong, 
 Sedgwick, Sewall and Thacher, justices) said it would be in vain 
 to go on with the action ; that the action should have been case, and 
 not trespass; and that even if a verdict should be found for the 
 plaintiff's, the court must arrest the judgment. 
 
 The plaintiff's discontinued upon payment of costs. 
 
 Attorney-General (Sullivan) and Thomas for the plaintiffs. 
 
 Parsons and B. Whitman for the defendants.^ 
 
 Note. — In an action of assault and battery, brought by the mas- 
 ter, Charles Adams, against the defendant, (for the injury done 
 him by the discharge of the musket,) which was tried at this term, 
 the jury found a verdict f(M- the master — $3,391 damages. 
 
 '■ %ogai i V rcasor, i, Yeates (Pa.) 586 (i795) ; Stump v. Kelly, 2.2 111. 140 
 {\%--,Q)T Om7yaf\\ Cummins, 6 Serg . & R. (Pa.) 343 (1821) ; J^ath v. Caton, 
 2,1 Mich. IQQ (1877) : Me\cr v. tiorst . 106 Pa. 552 (1884) ; Vogcl v. McAuliffe, 
 18 R. I. 791 (1895) ; Welch V. Seattle & M. R. Co., 56 Wash. 97 (1909). For 
 injuries bv servants in the course of their employment, case is the proper rem- 
 edy. Sharrod v. London & N. W. R. Co., 4 Exch. 580 (1849); Barnes v. 
 H'urd, II Mass. 57 (1814) ; P hUa. G. & N. R. Co. v. fFti L-^ Whart. (Pa.) 142 
 (1838) ; Havens v. HartforJ~& N. H. R. Co., 28 Conn. 69 (1859) ; Mosscssiau 
 v. Callcndcr, 24 R. I. 168 (1902). 
 
 Action o-v the Case. 
 
 "In 1537, some two hundred and fifty years after the introduction of this 
 writ, Sir Anthony Fitzherbert, in his treatise de Natura Brev'mm, the earliest 
 authoritative abridgement of the common law- gives a list of the then known 
 actions on the case. There is no attempt at classification, but on analysis 
 tl-ey will be found to fall into certain definite classes. 
 
 1. Cases illustrating what may he termed the primary use of the writ — 
 the normal extension of the principles underlying the formed writs of tres- 
 pass to conditions closely analogous to those for which remedy was given 
 by such writs, but where one or another of the precise technical requirements 
 for the operation of such writs being lacking no redress was possible under 
 them: (a) either because the harm resulted indirectly and not directly as re- 
 r-uircd in trespass vi et armis, or (b) the property which w^as destroyed had 
 been given to the defendant and not taken from the possession of the plain- 
 tiff as required in trespass de bonis asportatis, or (c) the property invaded 
 was not within the protection of the writ of trespass quare clausmn fregit; 
 being a term of years or a franchise. 
 
 2. The second class of case deals witli the secondary use of the writ, the 
 use of it not to extend trespass, but to enforce duties and obligations having
 
 GREGOIR V. LEONARD 223 
 
 GREGOIR V. LEONARD. 
 
 Supreme Court of Vermont, 1899. 
 
 71 Vt. 410. 
 
 Case : Heard on general demurrer to the declaration, at the De- 
 cember term, 1898, Addison county, Ross, C. J., presiding. De- 
 murrer overruled and declaration adjudged sufficient. The defend- 
 ant excepted. 
 
 Watson, J. : The only contention made by the defendant upon , 
 his general demurrer to the declaration is that if the plaintiff has 
 any right of action in the premises, it is in trespass and not in an 
 action on the case. \ 
 
 The allegations in the declaration show a right in the defendant, 
 his servants, and agents, to pass and repass to and from the lands 
 owned and occupied by the defendant, over and described premises 
 
 no kinship to trespass or at best only a remote analogy. These again fall into 
 two distinct groups. 
 
 A. Those which deal with certain positive duties, obligations to act 
 affirmatively Where the only injury sustained is the loss of the benefit which 
 would have been derived from the proper performance of the duty; where 
 the only right invaded is the right to the beneficial fulfillment of the obliga- 
 tion. These cases stand at the ver\' opposite pole from those just discussed in 
 which there is a mere extension of the field of punishable misconduct. There 
 is here no element of personal guilt. While the word 'ncgligentia' is used, it 
 does not signify negligence in the modern sense of the personal breach of 
 social duty. It is the mere failure, from whatsoever cause, to fulfill an obli- 
 gation only satisfied by performance that is the basis of recover}-. Of these 
 Fitzherbert gives several instances ; one group, and that the earliest, are 
 those attached by custom as an incident to the tenure of a particular estate 
 or the incumbency of an office. A second group are those which in the mod- 
 ern classification of the common law are segregated into a distinct class, and 
 treated as the very antitheses of tort liabilities. These are modern con- 
 tractual obligations; duties having as their basis the consent of those who 
 assume them. As instances of these are given cases of warranties and the 
 case of one who having promised to build certain wagons and having been 
 paid the price fails to do so; the damage laid being the loss of their profit- 
 able use. To Fitzherbert these appear to differ in nothing substantial from 
 similar positive obligations annexed by custom to the tenure of real estate. 
 F.videnty the time has not yet come when the fact that such obligations rest 
 not on custom or some general policy of law, but upon the expressed consent 
 of the individual, serves to mark them as radically different from all other 
 positive obligations. 
 
 B. A class of case is given lying, it may be said, midway between the 
 new broadc- conception of trespass and positive obligations. These contain 
 the germ and root from which has developed modern social duty to act, if 
 one acts at all, with due regard for the safety of others, and in relations con- 
 sciously assum.ed to take precautions to provide for the safety of those with 
 whom one is thereby associated. In Fitzherbert this idea exhibits itself in a 
 duty of proper performance recognized as attaching to the exercise of certain 
 trades and calling; many of them the prototypes of modern public or quasi 
 public-service trades. These duties are of varying degrees of stringency. In 
 the case of innkeepers the obligation approaches the absolute duty of afford- 
 ing full protection to the guest and his property. In other cases, as that of 
 carpenters or farriers, the duty is rather that of care in conduct of the busi- 
 ness to secure the safety of its patrons." Moral Duty to Aid Others as a | 
 Basis of Tort Liability, by Francis H. Bohlen, 56 Univ. of Pa. Law Review, I 
 223 (April, 1908). I
 
 22.\ ACTIONS 
 
 of the plaintilT. in and over the way in question, upon the condition 
 tliat in so passinsj; over the ]>laintiff's jircmises they should keep the 
 gates, bars, and fences, which they shall pass or rejxass, closed and 
 put up in as i;"ood condition as they found them at the time of such 
 passing. 
 
 The plaintilT alleges in substance, that at the time in question, he 
 had constructed and maintained good and suflicient bars across the 
 discontinued road near the southerly boundary of his farm, and also 
 about thirty rods south of the north end of the discontinued road 
 on his farm, and that the bars were then in good repair; that it was 
 the duty of the defendant, his servants, and agents, upon passing 
 along the road, in accordance with the conditions of the right of 
 way, "to carefully lower said bars, without injury to them, and to 
 place them up, after passing through ;" that to obstruct the plaintiff 
 in the use and enjoyment of his farm, on the days in question, the 
 defendant, with his servants and agents, passed over the discon- 
 tinued road, along the right of way, and through the bars, and threw 
 them down in a careless and w^rongful manner, and broke and ruined 
 them, and, with his servants and agents, passed through and left 
 the bars down and did not put them up, or place any barrier to pre- 
 \ent horses and cattle and other stock from going through the bars 
 and upon the land of the ])laintifif; and that cattle and horses did 
 escape through them and upon his farm, trod down grass and grain 
 growing thereon, etc., by means whereof, the plaintiff was damaged 
 in the use and enjoyment of his farm, etc. 
 
 The plaintiff was the servient and the defendant the dominant 
 owner of the land covered by the right of way, with a right in tlie 
 defendant to enter upon and pass over the plaintiff's premises in 
 and over the right of way, and, in so doing, the defendant had a 
 right to take down the bars across the way to enable him to pass 
 through. 
 
 The defendant, having the right to enter upon and pass over the 
 plaintiff's premises in the legitimate use of his easement, in the exer- 
 cising of that right within its limitations he was not guilty of break- 
 ing and entering, and whatsoever was done thereafter being but 
 aggravation of damages, the action of trespass on the freehold will 
 not lie. Goodrich v. Judevine, 40 Vt. 190; Grout y. Knapp, 40 Vt. 
 163 ; Howard v. Black, 42 Vt. 258.^^' 
 
 The throwing down of the bars by the defendant, his servants, 
 and agents, in a careless and wrongful manner, did not work a for- 
 feiture of the defendant's right in the easement; it was but the care- 
 less and negligent exercise of a lawful right, for which trespass will 
 not lie. Sahin v. Vermont Cent. R. Co., 25 Vt. 363. 
 
 The bars having been let down by the defendant, to pass through, 
 it was his duty, after passing through, to put them up, but his fail- 
 
 ' " See, Six Carpenters' Case, 8 Coke 216 (1611), and annotations to that 
 I case in i Smith's Leadinp Cases. In actions for seduction it has been held 
 ! that wliere the offense was accompanied by an illegal entry of the plaintiff's 
 
 house, h? miphl brinR trespass or case, Bennett v. AUcott, 2 T. R. 166 (1817). 
 
 But case seems tlie more appropriate remedy. jKcQ>nji,^jitikj^ 3 Serg. & R. 
 
 (Pa.) 215 (1817) ; Moran v. Dawes, 4 Cow. (N. Y.) 412 (1825) ; Furman v. 
 
 Apple gate, 23 X. J. L. 28 (1850).
 
 DAME V. DAME 225 
 
 ure so to do, was only the omission of an act which he ought to 
 have performed— a mere nonfeasance — for which trespass will not 
 lie. Stone v. Knapp, 29 Vt. 501 ; Stoughton v. Mott, 25 Vt. 668; i 
 Chit. PI. 126." 
 
 The injuries for which the plaintiff seeks to recover damages, 
 were committed by cattle and horses, which escaped through the 
 bars, left down by the defendant, upon the plaintiff's farm, treading 
 down grass, grain, etc., there growing. Such injuries were not done 
 by the act of throwing down the bars in a careless and wrongful 
 manner, and therefore immediate, but arose after that act was com- 
 pleted, and were more particularly occasioned by the failure of the 
 defendant to put up the bars, after passing through, and were the 
 collateral consequences thereof. ,;; 
 
 For the careless and negligent exercise of a Jawful.right.,an.d for 
 the omTsiTon of an act whTcli Tt Is tlie duty of a party to perform, 
 resuTtmg in a cullaRral injur}- to another, whose relations there.^o 
 ar e sucirthat he m a}' insist upon the proper exercise of such lawful 
 right, and tipon tKe iienOriiiance of the act omitted, but which ought 
 to have been performed, the par t^ so injured may rcco\er his conse- 
 quential damages in an action on the ease. That is the proper 
 remedy, i Chit. Fl. 133; Sabin \. I'cnunnt Central Railroad Co., 
 25 Vt. 363. No question having been raised, in argument, as to the^ 
 sufficiency of the declaration if an action on the case is the proper/ 
 remedy, we express no opinion thereon. \_ 
 
 Judgment affirmed and cause remanded. ^- 
 
 (k) Detinue!:,^^>^-'''*^*'^'^ ^^^^t^^^cC 
 
 DAME V. DAMfe.^?t^;t>^ ^ /'^^C^^ ^^^^U 
 I-'-' Supreme Court of New Hampshire, i86i.,n'*<-'^:^ /ot:i^i:^iCt^ 
 
 43 ^. H. 2,7. ^2jf ^ ^^'•^^'r^^-t't5>!?^i.^ 
 
 This was an action of detinue, brought to recover a ho use and 
 barn^'' alleged to be the property of the plaintiff, and situated on the * 
 
 k\ 
 
 "In Ktsscckcr v. Monn, 3 6 Pa. 313, 78 Am. Dec. 379 (i860), trespass 
 q. c. f. was susfained against one who having a license to enter took down a 
 gate and neglected to restore it to its place whereby his swine entered and 
 committed the injuries complained of. 
 
 ^- Shafcott V. iMitf/ford, i Ld. Raym. 187 (1698); Riddle v. Proprietors, 
 &-C., 10 Mass. 169 (1810) ; Maiill v. Wilson, 2 Harr. (Del.) 443 (1838) ; Church 
 of Ascension v. Bnckliart, 3 Hill (N. Y.) 193 (1842) ; Linsley v. Bushnell, 15 
 Conn. 225 (1842) ; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453 (1848) ; Gate v. 
 Gate, 50 N. H. 144 (1870) ; Garleton v. Gate, 56 N. H. 130 (1875) ; Fallon v. 
 O'Brien, 12 R. I. 518 (1880) ; Petey M. Go. v. Dryden, 5 Penn. (Del.) 166 
 (1904) ; Birkhead^v. ^roo(/, 3 5 Pa. Super. Ct. 235 (1908) ; Birminghmn W. Go. 
 V. Martini, 2 Ala. App. 6^2 (1911) ; Bagaglio v. Paolino, 35 R. I. 171, 
 (1913) ; Nirdlinaer v. Amer. D. T. Go., 2 40 Pa. 571 (1913) ; Crosby v. Plum- 
 per, III Maine~355 (1913)- 
 
 " Detinue lies only for the recovery of a specific chattel and not for real 
 
 15 — Civ. Proc.
 
 226 ACTU1NS 
 
 land i)f the ilofendant, in I'aiiuinj^ton, in said county, all of which 
 is fully sot forth in the plaintiff's declaration, which is as follows: 
 
 "In a i)lea of detinue for that, whereas the plaintiff heretofore, 
 to wit, on the lirst day of July, 1856, at l^'arniiuf^non aforesaid, was 
 lawfully possessed of a certain house and a certain harn, both situ- 
 ated on the land of the said Daniel Dame, being the house built by 
 the plaintiiY in the year 1842, said house being about thirty-six feet 
 long and about twenty-six feet wide, and one story and one quarter 
 high, and of the value of $300; and said barn being about twenty- 
 four feet long and about twenty feet wide, and of the value of $200, 
 situated between the house of Eleazer Rand and the house now 
 owned by Benjamin Chesley, on the left hand side of tlie road lead- 
 ing from the Bay road, so called, to the Ten Rod road, so called, as 
 one goes toward the Ten Rod road, as of his own house and barn, 
 and being so possessed, the said plaintiff afterward, to wit, on 
 the third day of July, 1856, casually lost the same out of his 
 possession, which thereafterward, to wit, on the same day, came 
 into the hands and possession of the said Daniel Dame, by finding; 
 and the plaintiff' further saith, that although the said Daniel Dame 
 well knew that the said house and barn were the proper house and 
 barn of the ])laintiff, and although requested by the said plaintiff, 
 to wnt, at said I""armington, on the nineteenth day of May, i860, to 
 deliver the same to the plaintiff, yet the said Daniel Dame hath not 
 delivered up the said house and barn to the plaintiff, but wholly 
 refuses so to do, and still unlaw^fully detains the same." 
 
 To this declaration the defendant filed a general demurrer, and 
 the plaintiff joined in demurrer, and the question of law was 
 reserved. 
 
 Sargent, J.: The only question here raised is whether in this 
 state an action of detinue can be maintained. It is claimed by the 
 defendant that this form of action w^as never introduced into this 
 state, or if it ever has been used or authorized here, that it has from 
 recent entire disuse become obsolete so that it can not now be main- 
 tained. 
 
 This action was early held to be an appropriate remedy in a cer- 
 tain class of cases. It would seem that the original distinction be- 
 tween replevin and detinue was very similar to that between trespass 
 and trover. Trespass de bonis asporatis was brought, not to recover 
 the identical thing taken, but damages for the illegal taking and loss 
 of the same, when such taking was unjust and unlawful, while trover 
 was brought for the unjust detention and conversion of property 
 where the original taking was lawful and proper. 
 
 So replevin was originally brought to recover the possessiQii_oi,a 
 chatfelTn specie when the original taking was wrongful, a nd detinue. 
 
 property, Coupledike v. Coupledike, Cro. Jac. 39 (1605), or for fixtures at- 
 tached to the soil, McFadden v. Crawford, 36 W. Va. 671 (1892), but things 
 severed from the realty and converted into personalty may be recovered in 
 this form of action, Cooper v. Watson, JZ Ala. 252 (1882) ; Adlcr v. Prcst- 
 U'ood, 122 Ala. 367 (1898). So also in trover and conversion, Quitman Co. V. 
 Conixav, 63 Fla. 253; (1912) ; Anderson v. Todesea, 214 Mass. 102 (1913) > 
 Melton \. fiillerton R. Co., 157 App. Div. (N. Y.) 525 (1913); Strickland v. 
 Miller, \2 Ga. App. 671.
 
 DAME v. DAME 227 
 
 tiLJXCOi:£jLiJie_axlkleJii.x/z^£i^-..u'iien-tlie. original taking was lawful. 
 3 Black. Com. 144-152. Hence we find that the form of the declara- 
 tion in trover and detinue are similar, it being alleged in both that 
 the property came to the hands and possession of the defendant by 
 finding. To be sure Blackstone says that replevin can be maintained 
 only in one instance of unlawful taking, to wit, that of an unlawful 
 distress. 3 Black. Com. 145. However this may have been in early 
 times, when personal property was of but small consequence, and 
 when legal remedies were mainly if not solely sought to acquire 
 possession of real estate, or to enforce some right connected there- 
 with, or to collect the rents chargeable thereon, yet in modern times 
 it is held that the law is otherwise, and numerous authorities of the 
 greatest weight lay it dov/n that this action lies in all cases of illegal 
 taking. 
 
 Chitty says, by replevin the ov/ner of goods unjustly taken and 
 detained from him, may recover possession thereof. It is princi- 
 pally used in cases of distress, but it seems that it may be brought 
 in any case where the owner has goods taken from him by another. 
 I Chit. PI. 162. And again, "It has been said that replevin lies only 
 in one instance of an unlawful taking; namely, that of an unlawful 
 distress of cattle, damage feasant, or of chattels for rent in arrears ; 
 but as before observed, it appears that this action is not thus limited, 
 and if goods be taken illegally, though not as a distress, replevin 
 may be supported." i Chit. PI. 164, and authorities cited. 2 Saund. 
 PL & Ev. 760; 2 Wheat. Selw. N. P. 1194. Replevin was generally 
 a co-extensive remedy v/ith trespass de bonis asportatis. Panghurn 
 V. Partridge, 7 Johns. 143, and authorities cited. Thompson v. But- 
 ton, 14 Johns. 87. 
 
 There is one exception stated by Blackstone (vol. 3, 151), where 
 he says, "If I distrain another's cattle damage feasant, and before 
 they are impounded he tenders me sufficient amends, now, though 
 the original taking was lawful, my subsequent detainment of them, 
 after tender of amends is wrongful, and he shall have an action of 
 replevin against me to recover them." But that this is an exception 
 to the general rule would seem evident from the manner and position 
 in which it is stated. On page 145, an unlawful taking is stated as 
 the first injury to the right of personal property or possession, for 
 which the remedy is by action of replevin. On page 151, he speaks 
 of the second injury, which is an unjust detainer of another's goods 
 when the original taking was lawful, for which the remedy in all 
 cases stated, with the single exception above mentioned, is either 
 detinue or trover. Now the learned commentator cited as his au- 
 thority for the exception above named, Fitzherbert's Nat. Brev. 69, 
 where the doctrine is stated thus: "If a man take cattle for damage 
 feasant, and the other tenders him amends and he refuseth it, etc. ; 
 now if he sueth a replevin for the cattle, he shall recover damages 
 only for the detaining of them, and not for the taking of them, for 
 that the same was lawful, therefore no return shall lie." Baron Gil- 
 bert, in his treatise on distresses and replevin, says, this is the only 
 instance in which replevin lies where the original taking was not 
 tortious. Hammond (in his Nisi Prius 334) says the same, and
 
 2JS ACTIONS 
 
 assigns the reason, namely, "that replevin is the proper action to try- 
 all questions arisintj out of a distress." Here is the cause why this 
 sini^le excej^tion to the general rule was made, because this was the 
 remedy so imiversally applied in all cases of distress, and so seldom , 
 in any other case, that Blackstone (erroneously) lays it down that 
 it is applicable only there ; it was held, therefore, as a matter of 
 convenience in practice that it should be extended to cover all cases 
 of distress, even though in a single instance it should thus be car- 
 ried beyond its original and appropriate limits. 
 
 W^ith this single exception the common law is believed to be uni- 
 form that replevin does not lie unless the original taking was unlaw- 
 ful in fact, or made so in law by relation, under such circumstances 
 as would have made the taking a trespass ab initio. Our statute 
 makes other exceptions. Kimball v. Adams, 3 N. H. 182. To sustain 
 these views, see, in addition, Com. Dig., Replevin, A.; Buller's N. P. 
 52; 3 Wooddeson's Lectures 219; 2 Rolle's Abr. 441 ; Lord Redes- 
 dale in Ex parte Mason, i Sch. «S: Lef. 320, note; and also in Ex 
 parte Chamber lain, i vSch. & Lef. 322; and in Shannon v. Shan- 
 non, I Sch. & Lef. 324; 7 Johns. 140; Story's PI. 422, note; Osgood 
 V. Green, 30 N. H. 210; Gardner v. Campbell, 15 Johns. 401. 
 
 But we find in different states that these actions have been gen- 
 erally regulated by statute and made to apply often to very different 
 uses and ]nn-poses from those for which they were originally de- 
 signed. To be sure we find in all the states, perhaps, the actions of 
 trespass and trover retained, trover l)cing generally extended in 
 practice, so as to cover all cases of wrongful detention and conver- 
 sion, without regard to the fact as to whether the original taking 
 were legal or illegal ; but we find that the actions of replevin and 
 detinue have met with very unecjual favor in the different states. 
 
 In Massachusetts, it has been held that replevin may be main- 
 tained in all cases of wrongful detention of the plaintiff's goods, 
 although the original taking may have been justifiable. Badger v. 
 Fhinnev, 15 Mass. 359; Baker v. Bales, 16 Mass. T47; Marston v. 
 Baldwin, \j Mass. 606; and in that state, too, it is held that detinue 
 is obsolete. Baker v. Bales, 16 Mass. 154; Colby's Prac, and Howe's 
 Prac, Detinue. But these decisions in Massachusetts, so far as they 
 claim to rest upon the common law, have been so often and so seri- 
 ously questioned, and are opposed by such an overwhelming weight 
 of authority, both English and American, that they may well be con- 
 sidered as having very little weight upon the question. See argument 
 of Webster and Metcalf, in Baker v. Bales (page T48), and authori- 
 ties cited, and, also, the numerous notes by the editor, and authorities 
 cited upon this case of Baker v. Bales, in the recent editions of Mas- 
 sachusetts Reports; and particularly, note 23, upon the action of 
 detinue. See also Wheat. Selw. N. P. 1194, and note and au- 
 thorities. 
 
 But it is said that these decisions in Massachusetts are author- 
 ized by their statute; and if that were so, they would stand well 
 enough, whether they accord with the common law or not. Mellen, 
 C. J., in Seaver v. Dingley, 4 Greenl. 315, in speaking of these Massa- 
 chusetts cases, says, that the court, after mature consideration.
 
 DAME Z'. DAME 229 
 
 decided "that whatever might be the strict principles of the common 
 law, the statute of 1789 had so altered the common law, that an ac- 
 tion of replevin may be maintained in case of an unlawful detention, 
 though the taking was not tortious and unlawful." But even this 
 position is disputed, and it is claimed, with apparent reason, that 
 these decisions can not be sustained either upon the principles of 
 the common law or upon the statute of that state. See notes 36 and 
 37 to Baker v. Fales, and authorities cited, where it is said, that 
 neither the form of the writ, as prescribed in tliat state, nor their 
 statute "give any countenance to the notion that replevin may be 
 maintained for an unlawful detention ; but, on the contrary, extend 
 only to cases of supposed unlawful taking." And, also, "that it is 
 quite clear that at the common law no action of replevin could be 
 maintained in this case." 
 
 Judge Story also seems to doubt whether these decisions in Mas- 
 sachusetts can stand even upon the statute of that state, and he does 
 not hesitate to pronounce their doctrines as innovations upon the 
 common law (Story's PI. 442, note),. where, in speaking of the doc- 
 trine that replevin may be maintained for goods unlawfully de- 
 tained, although there may have been no tortious taking, he says, 
 "this innovation on the common law, whether attributable to the 
 statute or to the constrviction given to it, is to be regretted. The 
 gist of the action is altered. It is no longer an unlawful taking, but 
 an unlawful detention. The general issue, non cepit, though it can 
 hardly be overruled as a good plea in replevin, has ceased to be a 
 logical defense ; indeed is no more to the purpose than nil debet, in 
 assumpsit. It unsettles former decisions, unless some exceptions are 
 set up without an}^ other reason than a desire to avoid overruling 
 former cases. Thus, it was formerly held that replevin would not 
 lie on a bailment by the plaintiff; but if replevin will lie in all cases 
 of unlav/ful detention, then it may be maintained in many cases of 
 bailment and, lastly, it has destroyed the analogy betw^een the actions 
 of trespass and replevin, where it existed before." 
 
 In Pennsylva nia, it was decided at an early day that replevin 
 v\'0uld lie wherev^ one man claimed goods in the possession of 
 another, no matter how the possession was acquired. But in that 
 state the action of replevin is authorized and regulated only by stat- 
 ute. Weave r v. Lmvrence. t D.nll T57 And the law continues the 
 same. Staughton v. Rappal o , ^ S. & R. 562 ; Keite v^ Boyd.^6 S. &: 
 R. 300. There could of course be Tittle necessity for the action of 
 detinue in that case.^* 
 
 In Virginia, it has been held that at common law replevin lay in 
 all cases where goods were unlavv'fully taken. And this was the law 
 in that state till 1823, when an act of the legislature confined the 
 v.rit to the case of distress for rent. J^aidcn v. Bell, 3 Randolph 
 
 ^' Replevin lies in Pennsylvania "wherever one man claims goods in the 
 possession of another without regard to the manner in which the possession 
 was obtained," per Agnew, J., in Herdir. v. Vnupa. 55 Pa. 176 (1867). Det- 
 inue is a neglected action, although there arc occasional instances of its use. 
 B crnbridcic :!LJ l'nni cr. 2 Yeates (Pa.) 129 (1799) ; Rcm enter v.__Rr7mn, 11 W. 
 1^^. C. 194 (1882) ;A/o:r/cr v. Haivk, 233 Pa. 316 (1912J
 
 230 ACTIONS 
 
 4.j8. In tliat state we find the action of detinue in very common use, 
 as it is believed to he in all the southern and some of the western 
 states. 
 
 In South Carolina, while detinue was in common use, it is said in 
 Byrd v. O'Harlin, 1 Rep. Con. Ct. 401, that it is not decided in that 
 state whether replevin will lie in any other case than that of a dis- 
 tress for rent. 
 
 So in Connecticut, while it is admitted that by the hinglish au- 
 thorities, as well as those of some of the contiguous states, replevin 
 lies for any tortious or unlawful taking of goods and chattels, yet 
 it is held that, under their statute, it lies only in cases of attachment 
 and distress. JVatson v. Watson, 9 Conn. 140; s. c. 10 Conn. 75. 
 
 In New York, previous to their revised statutes, they adhered 
 strictly to the common-law distinction between replevin and detinue, 
 and both actions were used. See 7 Johns. 140; 10 Johns. 373; 14 
 Johns, ^y, and 15 Johns. 402, before cited, which were cases of re- 
 plevin ; and Todd v. Crookslianks, 3 Johns. 432, which was detinue. 
 But by their Revised Statutes (vol. 2. 553), the action of detinue 
 was abolished, and the action of replevin was made, by express pro- 
 vision of law, to cover the same ground, or nearly so, that detinue 
 had before covered. ^^ 
 
 •But in North Carolina, on the other hand, it is held that detinue 
 lies in every case in which the property is wrongfully detained, 
 without regard to the manner in which the defendant acquired pos- 
 session. Johnson v. Preston, Cameron & Norwood 464. 
 
 It is said in 3 Black. Com. 151, that there is one disadvantage 
 which attends this action (detinue), namely, that the defendant is 
 herein permitted to wage his \a.\v, that is, to exculpate himself by 
 oath, and thereby defeat the plaintiff in his remedy, and that for this 
 reason the action itself is much disused, and has given place to the 
 action of trover. See, also, Bac. Abr., Detinue. But the 3 and 4 Wm. 
 lY. ch. 42, § 13, abolished the wage of law in all cases; since which, 
 this action has been much in use in England, and is said to be a very 
 adxantageous remedy, especially where it is material to embrace in 
 the same action with a count in detinue, another count in debt, for 
 a money demand as due upon a contract, i Chitt. PI. 121 and 125.^*' 
 
 It does not seem to be clearly settled upon authority, whether 
 the action of detinue should be confined to those cases where the 
 
 *■'■ The recovery of chattels is now provided for by the Code of Civil Pro- 
 cedure, §§ 1689 to 1736. Barnett v. Selling, 70 N. Y. 492 (1877) ; National S. 
 Co. V. Shcahan, 122 N. Y. 461 (1890). 
 
 '"Prior to the abolition of wager of law in 1833, a defendant availed him- 
 self of this privilege as late as 1824. King v. Williams, 2 B. & C. 538 (1824). 
 "Wajrer of Law, if it ever had a legal existence in the United States, is now 
 completelv abolished," per Storv, J., in Childress v. Emory, 8 Wheat. (U. S.) 
 642 (1823). See also, Troubat & Haly's Practice, Wiiarton's Edition, Vol. II, 
 page 15 note. 
 
 While detinue, as an action, has been abolished in England, the name is 
 still retained, in practice, to describe the modern statement of claim in an 
 action based on the same wrong, Rules of Supreme Court, Appendix C, Sec- 
 tion 2, No. 2. See also, Rherles Hotel & R. Co. v. Jones, L. R. (1887), 18 
 Q. B. Div. 459-
 
 DAME V. DAME 23 1 
 
 possession was at first rightful, and only the detention wrongful, or 
 whether that remedy, like trover, should be extended to all cases 
 where the detention is wrongful, without regard to the quality of 
 the original possession. The earlier authorities all favor the former 
 view. Lord Coke says, "that detinue lyeth v/here any man comes 
 to goods either by delivery or finding." Coke Litt. 286, b. Blackstone 
 lays dovk'n this rule, that in order to maintain detinue the first point 
 to be proved is, that the defendant came lawfully into possession of 
 the goods, as either by delivery to him or by finding them. 3 Bl. 
 Com. 151. Bac. Ab., Detinue; Wheat. Selw. N. P. 665." 
 
 But it is said by Chitty (i Chit. PI. 123) that it is a common doc- 
 trine in the books, that this action can not be supported if the de- 
 fendant took the goods tortiously; but he pronoimces the reasoning 
 upon which that opinion is founded as fallacious, and holds that it 
 may be maintained in any case where the detention v/as wrongful, 
 without regard to the manner in which the defendant acquired pos- 
 session. And wdiile there would seem to be no good reason for en- 
 larging the remedy by replevin, any more than there is that of tres- 
 pass de bonis; yet it may well admit of a quaere whether, as a matter 
 of convenience in practice, and not inconsistently with principle, 
 the action of detinue should not be so far enlarged beyond its orig- 
 inal limits, as to keep pace with its kindred action of trover. ^^ 
 
 It is alleged that detinue has never been used or authorized in- 
 this state, and that replevin, trespass, and trover, afford ample reme- 
 dies for all cases and classes of injuries. But trespass and troveri 
 are no substitute for detinue, for they only give damages for thej 
 goods taken or converted, without giving the party any chance to 
 recover the chattel in specie. In regard to_j^2l£Zi"iJi}l^,J-Pil^''lt5"^ 
 tliat the common law^isjn force here, aiiH^that mis^ction only lies 
 m case of 'a^~wro'ngTul taking in fact,, or by' mt^nd^^ of law with 
 f!TF'sTngle~ 7-omnion-Taw excei)tinn of cases of cattle taken damage 
 feasant, v\ hen amends arc tendered before impounding, and other 
 excepfions niade by our statute in case of animals impounded, where 
 it is held that it lies for a wrongful detention as well as a wrongful 
 taking; Kimball v. Adams, 3 N. H. 182; but it must be against the 
 person impounding, and can not be against the pound-keeper while 
 the creatures are in his legal custody; Bills v. Kinson, 21 N. H. 448, 
 where it is said that our statute has added to the causes for which 
 this action may be instituted at common law, not only in the above 
 case of animals impounded, but in case of goods attached on mesne 
 
 ^' The gist of the action is the detention of the goods, to the immediate 
 possession of which the plaintiff is entitled. Kettle v. Bromall, Willes 118 
 (1697) ; Miller v. Graham, i B. & P. N. S. 140 (1804) ; Gledstate v. Hczvitt. 
 I Cromp. & J. 565 (1831) ; Clements v. Flight, 4 Dowl. & L. 261 (1846) ; Miller 
 V. Dell, L. R. (1S91), I Q. B. Div. 468; Stezi'art v. Guy, 138 N. Car. 176 
 (1902) ; Williams v. Lay, 184 Ala. 54 (1913). 
 
 ^^ The American cases generally hold that, as the gist of the action is the^ 
 detainer, it is immaterial wlicther or not the defendants' possession was orig 
 inally tortious. Ovcings v. Frier, 2 A. K. Mar. 268 (1820) ; Bernard v. Herbert, 
 3 Cranch. (U. S.) 346 (1828); Pierce v. Hill, 9 Porter (Ala.) 151 (1839); 
 Schulenberg v. Campbell, 14 Mo. 491 (1851) ; Shomo v. Caldwell, 21 Ala. 448 
 (1852).
 
 2^2 ACTIONS 
 
 process, when claimed by a third i)ers()n, and in case of goods ex- 
 empt from attachment. Rev. Stat., ch. 204, §§ 1, 2 and 3; Comp. 
 Laws 520. 
 
 In accordance w illi these views is the f(jrin of the writ prescribed 
 by hiw in the action of replevin ( Ivcv. Stat., ch. 182, § 14; Comp. 
 Laws 4O4). commanding the sheriff to replevy the goods belonging 
 to A. P., of, etc.. "wrongfully taken and detained," as it is said, etc. 
 It would seem that this form embraces the common law, as nearly 
 as may be, as stated in the English cases, re])levin there being held 
 to be the ]iroper remedy in cases where projierty has been wrongfully 
 taken and detained, whether as a distress or in any other way. 
 
 Replevin then does not encroach ui)on the common-law ground 
 of detinue, but leaves all that ground for the application of that 
 remedy. It is only when rejilevin is carried beyond the common-law 
 limit, as in Massachusetts, by the court, and as it is in some states, 
 as in New York, by statute, that it can be said at all to supersede the 
 necessity of detinue as a remedy w^here the original taking was law- 
 ful, and it is desired to recover the thing detained, in specie. 
 
 Nor do we find our statutes silent concerning the action of 
 detinue. In the statute of limitations of 1791, detinue is twice men- 
 tioned and enumerated with trespass, trover, and replevin, and the 
 time of limitation is fixed for each. N. H. laws of 1815, 164 and 
 165. In the later statute of limitations, passed in 1825, we find sim- 
 ilar provisions, and the same enumeration of action, in which detinue 
 is twice repeated, as before. N. H. laws of 1830, 76. And in the 
 Revised Statutes, after specifying that certain actions, such as for 
 words, etc., shall be brought within tv^o years, it is provided, that 
 all other personal actions shall be brought in six years. Rev. Stat., 
 ch. 181, §§ 3 and 4. AJthough detinue is not here enumerated spe- 
 cifically, yet the same is true of trover, trespass, debt, and all other 
 actions having the same term of limitation. 
 
 It would seem that detinue v^-as a remedy as fully recognized by 
 our laws, and provided for as specifically as any of the other forms 
 of personal actions. Nor is its place superseded by any other form 
 of action. There are also good and sufficient reasons why it should 
 be used, even if it were a concurrent remedy with replevin. In the 
 latter, the plaintiff resumes the j)roperty in the first instance, and if 
 he does not ])revail, he must pay the defendant the value of the 
 property, as by our practice there is no judgment for a return. Bell 
 V. Bartlett, 7 N. H. 188. Rut in detinue, though the claim be to re- 
 cover the specific chattel, yet it is not taken from the hands of the 
 defendant till the right is determined, and the plaintiff takes his 
 property on his execution.^" No bonds are required. 
 
 Detinue may also be joined with debt in the same declaration, 
 which, in a large class of cases, is a decided advantage.-" It may 
 
 '•'But, in Alabama, see Jacobs v. State, 61 Ala. 448 (1878) ; United States 
 V. Bryant, iii U. S. 499 (1884). In West Virginia, replevin having been abol- 
 ished, a replevy bond and counter forthcoming bond have been made part of 
 the proceeding's in detinue. Robinson v. Woodford, 2,7 W. Va. 2>77 (1892). 
 
 ^ Dalslon v. Janson, 5 Mod. 90 (1696) ; Rucker v. Hamilton, 3 Dana (Ky.) 
 36 (1835) ; Calvert v. Marlow, 18 Ala. 67 (1850) ; J ones v. Gordg ji^^A Pa. 263 
 V 18:89) • Tic f el Bros. v. Maxvjell, 1S4 S. W. 319 TTex. 1913)-
 
 DAME V. DAME 233 
 
 also be brought for several articles, part of which are in existence, 
 and can be recovered, and a part of which may have been converted, 
 conveyed away, or destroyed; as the judgment in detinue is in the 
 alternative, first, that the plaintiff do recover the goods in question 
 specifically; or, secondly, if tlie plaintiff can not have the goods, 
 that he recover the value thereof, and his damages for the deten- 
 tion.-^ 
 
 The jur}' must therefore find the value not only of all the goods 
 in the aggregate, but of each article separately, so that the plaintiff 
 may have all that can be found of his property in specie, and for the 
 balance, whatever it may prove to be, he may recover his damages, 
 and this all in one suit and by a single judgment and execution, i 
 Wheat. Selw. N. P. 667; Saund. PI. & Ev., ante.'-^ 
 
 The difference in the course of proceedings, iti the two cases 
 (replevin and detinue), results naturally from the different injuries 
 for the redress of which these remedies were invented. Where the 
 taking was illegal and wrongful, the redress was by replevin, in 
 which the possession of the property was immediately returned to 
 the party from whom it had been thus wrongfully taken; and the 
 parties were then left to determine their several rights. But where 
 the possession was legally and rightfully obtained, as by a bailment 
 or a finding, but the further detention was claimed to be wrongful, 
 the plaintiff was not allowed to take the property in any summary 
 manner from the hands of the defendant, to whom, perhaps, he had 
 himself committed it; but he must first tr}^ his title and establish his 
 right, and if he proved the detention to be wrongful, he then recov- 
 ered his goods. 
 
 We think, then, that there are sufficient grounds, both upon the 
 statute and upon authority and reason, as well as convenience, for 
 holding that detinue in this state can be maintained. 
 
 The demurrer is overrviled.-' 
 
 "^ Where the defendant, in detinue, was in possession of the plaintiff's 
 goods under such circumstances that he was bound to return them on demand, 
 it is no defense to say that he has lost them, the burden is on him to show 
 that he was not at fault. Reve v. Palmer, 5 C. B. (N. S.) 84 (1858) ; Good- 
 man V. Boycott, 2 B. & S. I (1862); Lynch v. Thomas, 3 Leigh (Va.) 682 
 (1832) ; Robb V. Cherry, g8 Tenn. 72 (1896). Where the chattel was destroyed 
 by casualty before suit is brought it was held that the action would not lie. 
 Lindscy v. Perry, i Ala. 213 (1841). On the other hand where the chattel 
 was destroyed after suit brought the defendant was not relieved from lia- 
 bility. Wilkerson v. McDoiigal, 48 Ala. 517 (1872) ; Carrel v. Early, 4 Bibb 
 (Ky.) 270 (1815); Barksdale v. Appleberry, 2^ Mo. 389 (1856). Contra: 
 Bethea v. McLennon, 23 N. Car. 523 (1841) ; White field v. White field, 44 
 Miss. 254 (1870). 
 
 "When the verdict is for the plaintiff the jury finds the value of the 
 chatties and damages for their detention. Williams v. Archer, 5 M., G. & S. 
 318 (1847) ; Lenox v. Pike, 2 Ark. 14 (1839) ; Raniho v. Wyatt, 32 Ala. 363 
 (1858); Averett'y. Milner, 75 Ala 505 (1883); Higgenbotham v. Riicker, 2 
 Call (Va.) 313 (1800) ; New Era L. Co. v. Daniels, 143 Ky. 207 (1911). The 
 judgment should be in the alternative, for the specific chattels sued for, or 
 for the value thereof as assessed by the jury, with the damages. McCidlough 
 V. Floyd, 103 Ala. 448 (1893); Kirkland v. i'iJchcr, 174 Ala. 170 (1911). If 
 the goods are delivered up after suit brought, the plaintiff recovers merely 
 damages for their detention. Cross field v. Such, 8 Exch. 159 (1852). 
 
 ■'In detinue "(i) the plaintiff must have property in the thing sought to
 
 -34 
 
 ACTIONS 
 
 (1) Trover.-' 
 DAXIS i: HURT. 
 
 Sll'UKAIK COIRT OF ALABAMA, 1896 
 
 ''--'' 114 Ala. 146 
 
 4 
 
 Tills \\a> an acUon ot trover l ^r^nght hv the appellee, Peter T.> 
 Hurt, against the appellants, W. F. Davis & Son, warehousemen, tO' 
 recover dama ges f or the alleged con vei-^giojl -by the defendants, of 
 fnreeT^aTes'of cotton. Issue was joined upon the plea of the general 
 
 issue. 
 
 On the trial of the cause, as is shown hy the bill of exceptions, 
 the testimony for the plaintiff tended to show that he had purchased 
 from certain parties warehouse certilicates for- the three bales oi 
 cotton, which the holders of said certificates had stored with the 
 defendants ; that these certificates belonged to the plaintiff, and that 
 subsequently upon his making demand upon the defendants for the' 
 cotton, which said certificates represented, the defendants were un- 
 able to find the cotton in their warehouse, and that after a diligent 
 search by the plaintifi^'s agent and the defendants, the cotton was 
 never found. Jt was further shown that the plaintiff had instructed 
 
 be recovered; (2) he must liavc the right to^its jmmediate pqsses^^ (3) it 
 must be capable of identific ation ; (4) ifls es'sentiallhat tli'e property.bjijpf 
 some xalue; and (fj) the dere'ndant must have had possession at some time 
 beTore tlie institution of the"~acfi6n," per Sanders, J., in Hefner v. Fuller, 58 
 W. Va. 159 (1905). Thus, detinue lies for a "six-barreled pistol, called a 
 six-shooteV or revolver," IVright v. Ross, 2 Greene (Iowa) 266 (1849) ; or a 
 deed, Goodman v. Boycott, 2 B. & S. I (1862) ; or a promissory note, if of any 
 value, Todd v. Crookshanks, 3 Johns. (N. Y.) 432 (1808) ; Hefner v. Fidler, 
 supra. It will lie for a specific bag of money, S pence v. McMillan, 10 Ala. 
 383 (1846). See Southern H. Co. v. Lester, 166 Ala. 86 (iQio), but not 
 for monev which, it is alleged, the defendant owes the plaintiff. Broivn v. 
 FJlison, 55 N. H. 556 (1873). So, also, the plaintiff must be entitled to imme- 
 diate possession. ^Bou-ers v. Parker, 38 N. H. 563 (1879) ; .S'eals v. Fdiiunul- 
 son, 72, Ala. 293 (1882). 
 
 ^"The action of trover or conversion was, in its origin, an action of tres- 
 pass on the case for recovery of damages against a person who had found 
 gbbdK. and refused to deliver them on demand to the owner, but converted 
 them to his own use; from which word finding (trouvcr) the remedy is 
 called an action of trover. The circumstance of the defendant not being at 
 
 i liberty to wage his law in this action, and the less degree of certainty requi- 
 site in describing the goods, gave it so considerable an advantage over the 
 action of detinue (which before 3 & 4 W. 4, c. 42, was subject to the defense 
 of law wager), that by a fiction of_ law actions of trover were at length per- 
 mitted to be brouiiht "against any person who had in his possession, by any 
 means whatever, the personal prope,rt3'oi another, and sold or used the same 
 wTnTcTi't the consent of the owner, or refused to deliver tlie same vvlien de- 
 manded. The injury lies in the conversion and deprivation of the plaintiff's 
 property, which is the gist of the action and the statement of the finding 
 or trover is now immaterial, and not traversable." Chitty on Pleading, Vol. 
 I, page 163. See History of Trover by James Barr Ames, Harvard Law 
 Review, Vol. XI, page 277, reprinted in Select Essays in Anglo-American 
 Legal Histor\-, Vol. Ill, page 417. Cooper v. Chitty, 1 Burr. 20 (1756) ; 38 
 Cyc. 1997.
 
 DAMS V. HURT. 235 
 
 the defendants to ship to his cotton merchant 45 bales of cotton, in 
 which were included the three bales involved in this suit, and that 
 only 42 bales of cotton were received by his cotton merchants ; the 
 three bales which were not received being those involved in this 
 suit. 
 
 The testimony for the defendants tended to show that the de- 
 fendants made a search for the cotton, with the agent of the plain- 
 tiff, and failed to find it, and that they afterwards made a diligent 
 search in their warehouse for said cotton without finding it ; and 
 that the cotton was never shipped by the defendants after a demand 
 was made by the plaintiff for said cotton, nor was it delivered to any 
 one else; and that the cotton was not in the possession of the de- 
 fendants at the time the suit was brought. 
 
 Upon the introduction of all the evidence, the court of its own 
 motion instructed the jury as follows: "If the jury believe from 
 the evidence that the cotton in controversy was stored vx'ith the de- 
 fendants as warehousem.en for a reward, and the said defendants, 
 upon demand failed to deliver said cotton, or to account for its 
 absence, then the defendants are liable in this action to the plaintiff 
 for the value of the cotton and interest thereon from the time of 
 such demand."-^ Verdict and judgment for plaintiff. Defendants 
 appeal. 
 
 Bpickell, C. J. : When the bailee fails to return the goods, on 
 demand, the principal has an election of remedies ; he may sue in 
 assumT:)sit for a breach of contract, or in case for negligence, or if 
 there has been a conversion of the goods, in trover for the conver- 
 sion. Story on Bailments, §§ 194-269; Salt Springs Nat. Bank v. 
 Wheeler, 48 N. Y. 492, 8 Am. Rep. 564; Magnin v. Dinsmore, 70 
 N. Y. 410, 26 Am. R.ep. 608. The gist of the action of trover is the 
 conversion; the right of property may reside in the plaintiff, enti- 
 tling him to pursue other remedies, but trover can not be pursue^' 
 without evidence of a conversion of the goods. -^ Glaze v. McMUlioA, 
 7 Port. 279; Connor v. Allen, 33 Ala. 516; Balling v. Kirby, 90 Ala. 
 215. In Connor v. Allen, supra, it was said by Rice, C. J. : "Trover 
 is one of the actions the boundaries of which are distinctly marked 
 and carefully preserved by the code.-" A conversion is now, as it 
 has ever been, the gist of that action, and without proof of it, the 
 plaintiff can not recover, whatever else he may prove, or whatever 
 may be his right of recovery in another form of action." And he 
 
 '" Parts of the statement of facts and opinion of the court are omitted. 
 
 -'• Thorogood v. Robinson, 6 Ad. & E. (N. S.) 769 (1845) ; Brync v. Stout, 
 15 111. 180 (1853) ; Frome v. Dennis, 45 N. J. L. 515 (1883) ; Spooner v. Man- 
 chester, 133 Mass. 270 (1882) ; Evans v. Mason, 64 N. H. 98 (1886) ; Mc- 
 Phclers v. Page, 83 Maine 234 (1891) ; Industrial & G. T. v. Tod, 170 N. Y. 
 233 (1902) ; Walker v. First N. Bank, 43 Ore. 102 (1903) ; Port Huron E. & 
 T. Co. V. Otto G. E. IV., 89 Minn. 393 (1903). 
 
 ■'Accord: Bixel v. Bixel, 107 Ind. 534 (1886). In England the fictitious 
 averment of finding was abolished by the Common Law Procedure Act of 
 1852, 15 & 16 Victoria, ch. 76, § 49. And, although the distinctions between 
 the forms of action have, since the Judicature Act of 1873, ceased to exist, th? 
 substantive rights are preserved. Henderson v. Williams,^ L. R. (1895), I Q. 
 B. 521.
 
 J^() ACTIONS 
 
 adopts the delinition or description of a conversion given by Mr. 
 Cireonleat : "A conversion in the sense of the law of trover, consists 
 either in the appropriation of tlie thing to the i)arty's own use and 
 beneticiai enjoyment, or in its destruction, or in exercising dominion 
 over it. in exchision or defiance of the i)laintiff's rights, or in with- 
 holding the possession from the plaintiff, under a claim of title in- 
 consistent with his own." 2 Greenl. Ev., Sec. 642. In Glace v. Mc- 
 Million, sitf'ra, it was said: "It is believed that all conversions may 
 be divided into four distinct classes: i. By a wrongful taking. 
 2. By an illegal assumption of ownershi]). 3. By an illegal user or 
 misuser. 4. By a wrongful detention."-'* In Boiling v. Kirby, supra, 
 there was a very full examination of the authorities, and discussion 
 of the essential elements or facts which must concur to constitute 
 conversion in the sense of the law of trover, by McMillan, J.; arid 
 the result declared was, that "conversion upon which recovery in 
 trover may be had, must be a positive, tortious act. Nonfeasance or 
 neglect of legal duty, mere failure to perform an act obligatory by 
 contract, or by which property is lost to the owner will not support 
 the action."-" The case is republished, with elaborate and instructive 
 annotation by Mr. Freeman, 24 Am. St. Rep. 789-819. In Ala. & 
 Teiin. Rwers R. R. Co. v. Kidd, 35 Ala. 209, it was held, that "trover 
 will not lie for a bare nondelivery of goods by a warehouseman, 
 unless they are in his possession, and he refuses to deliver them on 
 demand."' In Abraham & Bro. v. Nunn, 42 Ala. 51, it was held, 
 that trover would not lie against a warehouseman, for the conver- 
 sion of goods taken from his possession by an armed force, without 
 negligence or complicity on his part. In Salt Springs Nat. Bank v. 
 Wheeler, supra, the defendant had received for acceptance certain 
 bills of exchange, and at the demand of the person entrusting them 
 to him, failed to return them, saying he could not find tliem, and 
 might have torn them up with papers he considered of no value ; it 
 was held, he was not liable in trover, there being no evidence of a 
 voluntary or intentional destruction or loss of the bills; though he 
 was liable upon his implied promise to present the bills for accept- 
 ance, and if not accepted or paid, to give notice to the plaintiff. 
 
 ^A mere assertion of title to a chattel will not amount to a conversion. 
 Lowry v. Walker, 4 Vt. 76 (1831) ; Fernald v. Cha.';c, 2>7 Maine 289 (1853) ; 
 Gilleiv. Robert.'!, 57 N. Y. 28 (1874) ; Sliaz,' v. Vu'o/'t' . 8 Pa. Super. Ct. 491 
 (1898). So a mere asportation, although wrongful, is not necessarily a con- 
 version unless the party taking the goods intends some use to be made of 
 them by himself or those for whom he acts, or, unless owing to his act the 
 goods are destroyed or consumed to the prejudice of their lawful owner. 
 Fouldc.s V. Willoughby, 8 M. & W. 540 (1841) ; Mattice v. Brinknian, 74 Mich. 
 705 (1889) ; farn.'Hi'orth v. Lowery, 134 Mass. 512 (1883) ; Hammond v. .Sul- 
 livan, 99 N. Y. S. 472 (1906) ; Lee Tung v. Burl; hart, 59 Ore. 194 (1911)- 
 
 =^ Accord: Mulgrave v. Ogden, Cro. Eliz. 219 (1591) ; Heald v. Carey, 11 
 C. B. 977 (1852) ; Jalin.wn v. .^trader, 3 Mo. 586 (1832) ; Hazvkins v. Hoff- 
 man, 6 Hill (N. Y.) 586 (1844) ; Forehand v. Jones, 84 Ga. 508 (1899) ; W^^y 
 V. Dcnnie, 174 Mass. 43 ( 1899) ; Andrevjs v. Carl, 77 Vt. 172 (1904)- Other- 
 wise where there has been positive misconduct, Phillips v. Brigham, 25 Ga. 
 617 (1859); Wheelock v. Wheelwright, 5 Mass. 104 (1809); Woodman v. 
 Hubbard, 25 N. H. 67 (1852) ; Donncll v. Canadian P. R. Co., 109 Maine 500 
 (1912).
 
 DAVIS V. HURT. 237 
 
 Without pursuing further an examination of authorities, it may 
 safely be said, that a mere fa i lure by a bailee nn HemanH made^ to 
 deliver goods which have been entrustedto him, is not a co nversion 
 which \j\\\ support an action of trover , if he sets up no title hostile to 
 "or i nconsistent with the title of the bailor, or ha^ IIUL appfcJpriate cT 
 fHem to his own use , or t o the use of a third pe rson, or exercised 
 nv ^Lliem a dominion inconsistent with tJi£.. {:taiiment. All that can 
 "tTETairly predicated of the facts ?oun(^ in the record, is the mere 
 failure to deliver the cotton upon the demand^" of the plaintiff; 
 possession of it not remaining with the defendant. There was no 
 denial of the title of the plaintiff, nor a dominion exercised over the 
 cotton inconsistent with the terms of the bailment, no evidence of a 
 conversion or appropriation of it to their own use, or to the use of 
 any third person by the defendants. The failure to deliver, unex- 
 plained, raises a presumption of negligence against them, and may 
 involve them in a liability for a breach of the contract of bailment, 
 or for negligence in the performance of the dttty springing from the 
 contract, but it is not the conversion ; the positive, tortious act, indis- 
 pensable to maintain trover. -^^ From this view, it results there was 
 error in the instruction given voluntarily by the court below. 
 
 Reversed and remanded. '•- 
 
 '" Where the original taking: is tortious no demand is necessary before 
 suit. Farrington v. Smith, 15 Johns. (N. Y.) 431 (1818) ; Earle v. V'anburen, 
 7 N. J. L. 344 ( 1799) ; Magnycr v. Haii'thorn, 2 Harr. (Del.) 71 ( 1836) ; Bntner 
 V. Dyball, 42 111. 34 (1866) ; Gihnore v. Ncivton, 91 Mass. 171 (1864) ; Claflin 
 V. Guriiey, 17 R. I. 185 (1890). But where the possession of the defendant 
 was originally lawful, and he has done nothing that constitutes an actual 
 conversion, then demand must be shown. Dictus v. Fuss, 8 Md. 148 (1855) ; 
 Cutter V. Fanning, 2 Iowa 580 (1856) ; Y eager v IVallace, S7 Pa. 365 (1868) ; 
 Castle v. Corn Exchange Bank, 148 N". Y. 122 (1895) ; Moore v. Monroe R. 
 Co., 128 Ala. 621 ( 1900) ; Marcus v. Chicago, M. & S. P. R. Co., 167 111. App. 
 638 (1912). 
 
 "^Accord: Rogers v. Huie, 2 Cal. 571, 56 Am. Dec. 363 (1852) ; Sturges 
 V, Keith, 57 111. 451, II Am. Rep. 28 (1870) ; Dearbonrn v. Union N. Bk., 58 
 Maine 273 (1870) ; Berman v. Kling, 81 Conn. 403 (1908) ; Cohen v. Koster, 
 ^ii App. Div. (N. Y.) 570 (1909). But trover is the proper action where 
 there has been a wrongful delivery^ of goods to one not entitled to them. 
 Devereux v. Barclay, 2 B. & Aid. 702 (1813) ; Cerkel v. Waterman, 63 Cal. 
 34 (1883) ; Louisville & N. R. Co. v. Barkhousc, 100 Ala. 543 (1892) ; Peo- 
 ple's Bank V. Mo., K. & T. R. Co., 158 Mo. App. 519 (1911) ; First N. Bank 
 v. Rons ford, 158 Mo. App. 519 (1911). 
 
 " Trover may be maintained for every species of personal property wdiich 
 is the subject of private ownership and has value. Nebraska v. Omaha :V. 
 Bank, 59 Nebr. 483 (1899); Alexmider v CnU^frlfi^ 13 Pa. Super. Ct. 518 
 (1900), money; Qavisj ^ F 1 1 n k , .IQ P a . 243 (1861), promissorv note; Amory 
 V. I'lynn, 10 JohnsTCN? Y.) "102^X1813), wild geese that had been tamed"; 
 Cnmmings v. Perham, i Mete. (Mass.) 555 (1840), a dog; Ayres v. French, 41 
 Conn. 142 (1874) ; ^iter v. Kelly, 69 Pa. 403 (1871) ; Daggett v. Davis, 53 
 Mich. 35 (1884) ; Reacltng t. Lo. v. Harley, 186 Fed. 673 (1911), certificates 
 of stock; Vaughn v. Wright, 139 Ga. 736 (1913), tax receipts. It does not lie 
 lor a public record. Keeler v. Fassett, 21 Vt. 539 (1849), nor for chattels 
 that have for their object the violation of law, Spalding v. Preston, 21 Vt. 
 9 (1848) ; Morrill v. Cooclenoxv, 65 Maine 178 (1876) ; Robertson v. Porter, i 
 Ga. App. 223 (1907). 
 
 To maintain trover the plaintiff must have a property in the chattel, gen- 
 eral or special, and the actual possession or the right to immediate possession.
 
 > 
 
 23S ACTIONS 
 
 (m) Replevin. '^ 
 SINNOTT V. FKTOCK. 
 
 •' ' 165 iV. Y. 444. 
 
 Replevin to recover certain chattels which it was alleged the 
 plaintiff was induced to sell to the defendant by fraud on the part 
 of the latter. On the trial it was conceded that prior to a demand 
 'for the return of the goods and before the commencement of the 
 action the chattels ha d be enjaken from the defenda nt on an execu - 
 tion against him and-sold. so that at the flme^ofTRe demand and 
 conimeiic-ement of the action^ they were not in the defenda nt's p os- 
 session, custody or conffol" "There" was" no "suggestion of collusion 
 with " the'"execiition' cTecIltor. The trial court dismissed the com- 
 plaint and the judgment entered on such dismissal was affirmed by 
 the appellate division of the Supreme Court. Plaintiff appeals."* 
 
 CuLLEN, J. : Originally at common law the action of replevin 
 lay to recover the possession of goods illegally distrained by a 
 landlord. The primary object of the action was to recover posses- 
 sion of the specific chattels. The form of action was so useful that 
 the action was extended to nearly all cases of unlawful caption or 
 detention of chattels where it was sought to recover tlie chattels in 
 specie. ^^ In many cases where the plaintiff was unable to obtain the 
 return of the chattels he could recover in the action their valvie. 
 
 MartiiL v Megargee^ 212 Pa. 558 (1905) ; Abbott v. Crcmer, 118 Wis. ^77 
 (1903) ; Aettleton \. Kerr, 167 111. App. 74 (1912). As against a stranger 
 possession alone is sufficient to maintain trover. Giinzburger V. Rosenth al, 
 226 Pa. 300 (1910). ' 
 
 '"'Replevin is an action at law for the recovery of specific personal chat- 
 tels, wrongfull}' taken and detained, or wrongfully detained, with damages 
 which the wrongful taking or detention has occasioned. It is what we usually 
 term a mi.Ked action, heing partly in ron and partly in personam — in rem so 
 far as the specific recovery of the chattels is concerned, and in personam as 
 to the damages. To sustain the action plaintiff must have the rigiit to imme- 
 diate and exclusive possession at the time of the commencement of his suit." 
 Fredericks v. Tracy, 98 Cal. 658 (1893). See, also, Fisher v. IVhooller v, 25 
 Pa. 197 (1855) ; Maclary v. Turner, 9 Houst. (Del.) 281 (1891); Kbbb v. 
 Dohrinski, 14 Okla. 563 (1904) ; Pedrick v. Kiiemmell, 74 N. J. L. 379 (1907) ; 
 Hitch v. Riggin, 26 Del. 84 (1911) ; Shantz v. Shriner, 167 Mo. App. 635 
 (1912). Replevin differs from trover and trespass in that it is for 
 the recovery of the specific property, and not primarily for damages; it dif- 
 fers from detinue in that it restores the property to the plaintiff at the begin- 
 ning of the action. Mcnnie v. Blake, 6 Ell. & BI.841, and authorities there cited; 
 Hrrdir v Vnini^j^^ Pa. 176 (1867) ; La I'ie V. Crosby, 43 Ore. 612 (1903). 
 
 " The arguments of counsel and part of the opinion of the court are 
 omitted. The statement of facts is derived from the opinion. 
 
 "The statement in III Blackstone's Commentaries, 146, that replevin only 
 applied in one instance of unlawful taking, that of wrongful distress, is now 
 admitted to have been incorrect. Shannon v. Shannon, i Sch. & Lef. 324 
 (1804) ; George v. Chambers, 11 M. & W. 149 (1834) ; Minnie v. Blake, 6 
 Ell. & Bl. 841 (1S56). Replevin in England is now almost entirely governed by
 
 SINNOTT V. FEIOCK 239 
 
 Still, the action remained essentially one to recover the possession 
 of chattels as distinguished from actions in trespass or trover to 
 recover damages for the seizure or for the value of the property. 
 There were many technical rules in force relating to this form of 
 action, which at times made proceedings under it difficut, and in 
 1788 a statute was passed in this state (i R. L. 1813, p. 31) to 
 simplify the procedure. It directed the form of plaint before the 
 sheriff in which the plea was "of taking and unjustly detaining" 
 beasts, goods or chattels. ^"^ Afterwards the Revised Statutes pre- 
 scribed the rules governing actions of replevin and the procedure 
 therein. The provisions of chapter 2 of title 7 of the Code of Pro- 
 cedure of 1848, entitled claim and delivery of personal property, 
 operated as a substitute for those of the Revised Statutes. They 
 direct that at the commencement of the action the plaintiff may 
 replevy the chattels, but in the affidavit to obtain the vv^rit there is 
 required the statement that the defendant "unjustly detains" them. 
 The provisions of the present Code of Civil Procedure in the article 
 entitled "Action to recover a chattel" (Sec. 1689 to Sec. 1730), are 
 substantially the same as those of the old code.'^ 
 
 the County Courts Act of 1888, 51 & 52 Victoria, ch. 43, §§ 133-137, and the 
 rules of court under that act. 
 
 In America the weight of authority is that the remedy never was re- 
 stricted to cases of wrongful distress but was proper for any unlawful taking. 
 Bruen v. Ogdcn, 11 N. J. L. 370 (1830) ; Daggett v. Robins, 2 Blackf. (Ind.) 
 415 (1831) ; Ely V. Ehle, 3 N. Y. 506 (1850). And now by judicial decision 
 or statute the rule generally prevails that the action will lie for unlawful 
 detention mereh-, in cases where the original taking was not tortious. Ohio 
 V. Jennings, 14 Ohio St. Jz (1862) ; Whitman v. Merrill, 125 Mass. 127 (1878) ; 
 Gildas V. Crosby, 61 Mich. 413 (1886) ; Hart v. Boston & M. R. Co., 72 N. H. 
 410 (1903). In Pennsylvania it was held at an early date that the action 
 would lie "whenever a plaintiff claims goods in the possession of another." 
 Weaver v. Lawrence, 1 Dall. (Pa.) 156 (1785) ; Shearick v. Hiiber, 6 Binn. 
 (Pa.) 2 (1813). "■ ^ 
 
 A mere taking, however, will not support the action, the gist of which is 
 tortious detention. Page v. Crosby, 41 Mass. 210 (1835) ; Johnson v. Johnson, 
 4 Harr. (Del.) 171 (1844); Hickey v. Hinsdale, 12 Mich. 99 (1863); Kier- 
 bow V. Young, 20 S. Dak. 414 (1906) ; Petchenik v. Rich, 84 N. J. L. 592 
 (1913)- 
 
 ^^ The general rule is that all personal property of a tangible nature may 
 be the subject of replevin, Eddy v. Davis, 35 Vt. 247 (1862), cattle; Flentge 
 V. Priest, 53 Mo. 540 (1873), seal of court; First Church v. Stearns, 38 Mass. 
 148 (1838), church records; Bush v. Groomes, 125 Ind. 14 (1890), promis- 
 sory note. Replevin will not lie for fixtures attached to realty, _Roberts v. 
 JJajiphin D. Bank^ ig Pa. 71 (1852) ; Niblet v. Smith, 4 T. R. 504 (1792) ; 
 nor for property mTTie custody of the law. Smith v. Huntingdon, 3 N. H. 76 
 (1824); Pott v . Oldwine, 7 \ Yatt5- (Pa.) 173 (1838); nor for corporate 
 stock as distinguished from the certificates. Ashton v. Heydenfeldt, 
 124 Cal. 14 (i8og) ; nor for articles on the person of the defend- 
 ant, Ma.rham v. Day, 82 Mass. 213 (i860); nor for money incapable of 
 specific identification, Spear v. Ark. Nat. Bank, 163 S. W. 508 (Ark. 1914) ; 
 nor for a coffin with the corpse enclosed after burial, Guthrie v. Weaver, i 
 Mo. App. 136 (1876), but as to the right to possession of a corpse, see Petti- 
 grew V. Pettigr ezv, 213. Ea.^13 (1904) ; Doodeward v. Spence, 6 Cornmon-" 
 wealth Reports (Australia) 406 (1908); Miner v. Canadian P. R. Co., 15 
 Western Canada Law Reporter 161 (1910). 
 
 '■ The name "claim and delivery" derived from the New York Code of 
 1848 has been adopted in many code jurisdictions to describe the statutory
 
 240 ACTIONS 
 
 The qucstidii scxeral times arose under the Code of Proeedtire 
 whether replevin eould he niaintaineil against a party who was not in 
 possession, eitlier actual or constructive, of the chattels, and was the 
 suhject of conflicting decisions in the Supreme Court and in the 
 Superior Court of New York. It Imally came to this court in 
 Xicl'.ols V. Alichael (23 N. Y. 264). This was also a case of fraud- 
 ulent purchase of goods in which the defendant, before the action 
 \vas brought, had voluntarily transferred the goods to his assignee. 
 It was hekl that the action could be maintained. This decision was 
 based on the authority of two English cases, Garth v. Howard (5 
 Car. & P. 346) and Jones v. Do7vlc (9 M. & W. 19). In the case in 
 this court Judge Selden wrote : "The theory upon which these cases 
 proceed is perfectly sound, and applies directly to the ])resent case. 
 It is, that where a person is in possession of goods belonging to 
 another, which he is bound to deliver upon demand, if he, without 
 authority from the owner, parts with that possession to one who 
 refuses to deliver them, he is responsible in detinue equally with the 
 party refusing. He contributes to the detention. It is the conse- 
 quence of his own wrongful delivery. The action in such cases may 
 properly be brought against both, because the acts of both unite in 
 I)roducing the detention." This doctrine has been steadily adhered 
 to by tliis court. (Burnett v. Selling, 70 N. Y. 492 ; Dunham v. Troy 
 Union R. R. Co., 3 Keyes, 543.)'^* These decisions, however, do not 
 control the .present case. They are authorities to the effect that 
 where the defendant has wrongfully parted with possession the 
 action will lie. As already stated, the defendant did not part with 
 possession by any act on his jiart, but the pro])erty was taken from 
 him by process of law valid as to him and which he could not 
 resist. To uphold a recovery in replevin under such circumstances 
 we must go further, and decide that whenever property has been 
 taken or obtained wrongfully an action of replevin may be main- 
 
 remedy given in lieu of replevin, California Code of Civil Procedure, §§ 5CK)- 
 521, EUinghoe v. Brakkcn, 36 Minn. 156 (1886); Hall v. Hall, i Idaho 361 
 (1871) ; Fredericks v. Tracy, 98 Cal. 658 (1893) ; Hooker v. Lalhain, 118 N. 
 Car. 170 (i8g6). The technical action of replevin has been abolished 
 in many of the states and supplied by a statutory equivalent. In others the 
 name has been retained but the action has been modified so as to enlarge its 
 scope and simplify its procedure. C'obbey on Replevin (igoo), § Q ; A. & E. 
 Encyc. of Law (I'st ed.), vol. 20, p. 1041 ; Fa Act o f April 19, 1901, P. L. 88; 
 Harris v. Krause, 60 N. J. L. 72 (1897) ; l^^'^O V- Worris, 7;^ N. ^T L. 279 
 (1906). 
 
 " To maintain replevin the general rule is that tlie defendant mu.st have 
 either actualor con^structive possession of the property sued f or at_ ttie time 
 oTlnm^ng^uTiyBraWeyv 33T Ci'S62) ; M'ltclielt vTTTo^rts, 
 
 50 N. H. 48(3X1871) ; Calnan v. Stern, 153 Mass. 413 (1891). As to \vhether 
 I the action will lie where the defendant has wrongfully parted with possession 
 
 /"Before suit there is a conflict of opinion. In accord with the New. York deci- 
 sions ar e^zC£r v Tfl/^»a«, 5 W. & .S. (Pa.) 556 (1843) ; Pomeroy v. Trimper, 
 90 Mass. 398(1854); Harkey v. Tillman, 40 Ark. 551 (1883); Helman v. 
 
 Withers, 3 Ind. App. 532 (1891) ; McBrian v. Morrison, 55 Mich. 351 (1884) ; 
 Andrews v. Hoeslich, 47 Wash. 220 (1907). Contra : Feder v. Abrahams, 28 Mo. 
 App. 454 (1888) ; Webb v. Haysty, 80 N. Car. 305 (1879) ; Warren v. Letter, 
 24 R. I. 36 (1902); Glass v. Basin & B. S. M. Co., 31 Mont. 21 (1904); 
 Kierhov.' v. Yonnf/, 20 S. Dak. 414 (1906).
 
 SINNOTT Z'. FEIOCK 24I 
 
 tallied against the taker regardless of whether the property is in his 
 possession or whether he has been lawfully deprived of it, and, 
 as a logical sequence, as we think,, also regardless of the fact that 
 the property sought to be replevined may have ceased to exist with- 
 out fault on the defendant's part ; in other words, that the action can 
 be maintained under all circumstances to the same extent as an 
 action for conversion. Such a doctrine would substantially destroy 
 the characteristics of an action of replevin which distinguish it as 
 an action to recover possession of specific property, and we find 
 no authority for it in the decisions of this or of our sister states. 
 In Massachusetts the rule seems absolute that the defendant must 
 be in possession when the action of replevin is brought. (Richard- 
 son v. Reed, 4 Gray 441; Hall v. White, 106 Mass. 599.) In the,, 
 earlier case it is said: "By the common law replevin can not_be| 
 maintained wlicrc trespass can not; for. by thatTaw"^ an unTaw^fuI' 
 fai<ing of go'tvls is a prerequisite to tlie mainteiiance of repleA'in. 
 Fut tre spass will lie in cases where replevin jY.ill not. Replevin, 
 being an action in"wliicTi" the process is partly in rem, wall not lie 
 where it is impracticable or unlawful to execute that part of the 
 process according to the precept." In the later case it was held 
 that the action would not lie against a sheriff wdio had seized goods 
 but parted with possession before the date of the plaintiff's writ. 
 The same rule obtains in New Hampshire {Mitchell v. Roberts, 50 
 N. H. 486), Iowa {Coffin v. Gephart, 18 Iowa 256), Missouri {Feder 
 V. Abrahams, 28 Mo. App. 454 ; Davis v. Randolph, 3 Mo. App. 454), 
 Maine {Ho7.ve v. Shazv, 56 Maine 291), Minnesota {Ames v. Miss- 
 Boom Co., 8 ]\Iinn. 467), and in North Carolina (Haughton v. New- 
 berry, 69 N. Car. 456). ''^ 
 
 In A'lrginia there is a very early case on the subject {Burnley 
 V. Lambert, i Wash. 308) argued^ by Mr. (afterwards Justice) 
 Washington and Mr. (afterwards Chief Justice) Marshall. It was 
 there held that the defendant could not, by transferring the prop- 
 erty before the commencement of the action, defeat the writ. In 
 the opinion it is said that "Possession of the defendant prior to the 
 suit v.-as sufficient to charge him unless he was legally evicted." 
 Jn Pool v. Adkisson (i Dana no) the Court of Appeals of Ken- 
 tucky, following the decision in Burnley v. Lambert, held that the 
 voluntary transfer of the defendant before suit did not defeat an 
 action in replevin. It is there said: "According to the case of 
 Burnley v. Lambert, the fact that the plaintiff was not possessed of 
 
 '" The cases are collected and discussed in a note in 18 Lawyers' Reports 
 Annotated N. S., p. 1266. "The Writ of Replevin is not regarded in Pennsyl- 
 vania altogether as a proceeding in rem, but is a proceeding also against the 
 defendant in the writ personally; and under this view of it, the practice has 
 uniformly been to insert in the writ a summons to the defendant to appear; 
 and, for the greater security and convenience of the owners of personal 
 property from whom the possession is improperly withheld, the action of 1 
 replevin may be maintained by such owners in all cases, and may proceed on | 
 the summons alone, where the property has been eloigned or disposed of." 
 Per Sergeant, J., in Baldzvin v. Cash, 7 W. & S. (Pa.) 425 (1844). 
 
 16 — Civ. Proc.
 
 24- ACTIONS 
 
 tho slaves when this suit was broui^ht can not change or affect the 
 rcinody. unless he had been 'legally evicted.' This doctrine, if in- 
 terjireted literally, may be too restrictive. P>ut it seems to be free 
 from just excei)tion, if understood as we suppose it ought to be, to 
 mean that the plaintiff had been divested of the possession in a 
 manner authorized by law. and which would, therefore, exonerate 
 him from the charge of tortious conduct." It was held by the court, 
 in CaliiwcH v. Fenzvick (2 Dana 333), that detinue could not be 
 maintained for a slave dead before the commencement of the action, 
 though otherwise if he had died subsequent to the commencement 
 of the action, or the defendant had improperly parted with his pos- 
 session. The court said: "Detinue is a mode of action given for the 
 recovery of a specific thing and damages for its detention, though 
 judgment is also rendered in favor of the plaintiff for the alternate 
 value, provided the thing can not he had; yet the recovery of the 
 thing itself is the main object and inducement to the allowance of the 
 action. * * * The action is not adapted to the recovery alone of 
 the value of a thing detained ; nor can it be maintained therefor." 
 
 We ha\'e thus reviewed the leading cases in this country in ref- 
 erence to the circumstances under which an action of replevin can 
 be maintained. None of them authorizes the maintenance of the 
 action under the circumstances of the present case. In all of them 
 replevin is held to be essentially a possessoix acticm. In many of 
 the states it is unqualifiedly requisTfe'Tor the mainjtenance of the 
 actiorTTH'ariFr'deFendariT sh15litd"'1^"F m" of the chattels 
 
 sued for at the. time the action was commenced. In others, as in 
 our owtTstate, an exception' is made to the general rule where the 
 defendant has voluntarily parted with the property. Still the excep- 
 tion goes only to the extent stated. The law in Virginia and Ken- 
 tucky is substantially the same as our own, and the cases cited from 
 those states are well reasoned on principle. The case at bar falls 
 I within the rule stated in those cases, that where the defendant is 
 ) evicted by legal process before suit brought the action will not lie, 
 and we are, therefore, of opinion the disposition of the case by the 
 courts below was correct.'*" 
 Judgment affirmed. 
 
 '"At common law where tlie goods were delivered to the plaintiff, the 
 judgment in his favor was for damages for the detention; the judgment if for 
 defendant was pro rctorno habcndo. Ilastonw. W'orthi ngton , 5 Serg. & R. 
 (Pa.) 130 (1819) ; Morris on Rcplevin^^TX Tf the"" defendant kept the goods 
 under a claim of property the judgment for plaintiff was for the value of the 
 goods and damages and the defendant had no option to return tlie goods. 
 Field v. Post, 38 N. J. L. 346 (1876). While the practice differs in the differ- 
 ent jurisdictions the tendency of modern statutes is to permit an election 
 between a recover\' of the goods or their value. Fiebcr v^Schrciada:, 221 Pa. 
 152 (1908) ; Wcsfinyhou sc Co.j v . Harris, 2 37 Pa. 203 (1912); Bates v. Cap- 
 ital S. Banl^ 21 Idaho 1 41 ("1912) ; Kcrman v. Lccper, 172 Mo. App. 286 
 (1913). The Pennsylvania Act of April 14, 1905, P. L. 163 permits the court 
 to order the property impounded in the custody of the sheriff, where the 
 defendant gives bond and the plaintiff shows that by reason of tlie special 
 nature of the property damages will not compensate him.
 
 BROWDER v. PTIINNEY 243 
 
 SECTION 2. ABOLITION AND CONSOLIDATION OF 
 FORMS OF ACTIONS. 
 
 New York Code of Civil Procedure. 
 
 Sec. 3339. There is only one form of civil action. The distinc- 
 tion between actions at law and suits in eqtiit}^, and the forms of 
 those actions and suits have been abolished.*^ 
 
 BROWDER z: PHINNEY. 
 
 Supreme Court of Wasiiinc-.ton, 1902. 
 
 30 Wash. 74.^" 
 
 Du.xDAR, J. : This is an action for damages for wrongful and 
 forcible eviction from leased premises. Plaintiffs obtained from the 
 defendant, on the 31st day of August, 1899, a contract or lease of 
 two store rooms in Seattle, described, for a term of three years, 
 with stipulated rent, which contract or lease was signed by defend- 
 ant, Nellie Phmney, through her agent, Daniel Jones, and delivered 
 to plaintiffs. Plaintiffs alleged that they were put in possession of 
 said premises by defendant on October i, 1899; that they paid rent 
 
 " The California Code of Civil Procedure, Sec. 307, provides : "There 
 is in this state but one form of civil action for the enforcement or protection 
 o£ private rights and the redress or prevention of private wrongs." The vari- 
 ous codes of the other states follow, in the main, the language of the New 
 York or California Codes. Burns' Ann. Stat. Ind. (1914) § 249. In some 
 states, however, for example Iowa, while the forms of action are abolished, 
 proceedings may be of two kinds, legal and equitable. Code of Iowa (1897) 
 §§ 3426, 3427. See generally Pomeroy's Code Remedies (4th ed.) p. 5. 
 
 In England, the Judicature Act of 1873, § 100, provides : "Action shall 
 mean a civil proceeding commenced by writ, or in such other manner as may 
 be prescribed by rules of court ; and shall not include a criminal proceeding 
 by the Crown." The rules of the Supreme Court, order II, rule i. provides: 
 "Every action in the High Court shall be commenced by a writ of summons, 
 which shall be endorsed with a statement of the nature of the claim made, or 
 of the relief or remedy required in the action." Order I, rule i, provides 
 that proceedings formerh- commenced in the common-law courts by writ, 
 in the court of chancery by bill or information, in the court of admiralty by 
 a cause in rent or in personam, or in the probate court by citation shall be 
 instituted in the High Court by a proceeding to be called an action. 
 
 In Massachusetts, there are three divisions of personal actions (i) con- 
 tract, which includes assumpsit, covenant and debt; (2) tort, vvhich includes 
 trespass, trespass on the case, trover and actions for penalties ; (3) replevin. 
 Revised Laws (1902) ch. 173, § i. No equity suit is to be defeated because 
 there is an adequate remedy at law nor shall an action at law be defeated on 
 the ground that relief should be sought in equity, but the proceedings shall 
 be amendable before final judgment or decree. See Worthington v. U'aring, 
 157 Mass. 421 (1892), Revised Laws (1902), ch. 159, § 6. 
 
 In New Jersey, the practice act of 1912 provides : "There shall be but 
 one form of civil action in the courts of common law, which shall be de- 
 nominated an 'action at law,' but this shall not apply to proceedings upon 
 prerogative writs; provided that subject to rules, a writ of mandamus mav 
 be awarded in such an action. Tlie process and pleadings in all actions shall 
 be according to rules of court." 
 
 " Part of the opinion is omitted.
 
 24-1 ACTION'S 
 
 therefor for the months of Oetobcr and November of said year to 
 saiil defendant, and saici rent was acce])tcd by said defendant; in 
 short, that tliey were incommoded during the time of their lease by 
 the improvements which were made upon the premises for the les- 
 sors, and were finally, on the 12th day of January, 1900, forcibly 
 evicted from the premises by defendant. At the opening of the 
 trial, defendant's counsel objected to the introduction of any testi- 
 mony under the complaint, for the reason that it did not state facts 
 sufiicient to constitute a cause of action, which motion was denied. 
 At the close of plaintiffs' testimony defendant moved for a nonsuit 
 on the ground that the instrument sued on was invalid, and that the 
 plaintiffs had not shown any facts to take it out of the statute of 
 frauds,"*' and for the further reason that authority in the agent to 
 execute the lease was not shown. This motion was denied by the 
 court. Counsel for defendant then moved the court to instruct the 
 jury to return a verdict for defendant on the ground that a court of 
 law has no power to entertain this suit. This motion was granted, 
 and the case dismissed, the court taking the view that the lease was 
 invalid in law because it was not acknowledged,'*'' and that the facts 
 showing part performance of the contract could be enforced in 
 equity, but could not be shown in an action at law. 
 
 We think the court erred in dismissing the action. Whether or 
 not the contract or lease was originally illegal, it is not necessary 
 for the purpose of this discussion to determine. But if illegal, a 
 part performance of the contract, either by the jilaintiffs taking 
 possession of the premises under the lease or by the payment and 
 acceptance of rent under the terms of the lease, would render the 
 lessor liable for damages for its violation by him ; and the court, in 
 holding that part performance could not be shown in an action for 
 damages, lost sight of the rule of concurrent jurisdiction with which 
 courts are clothed, especially under the reformed procedure. Our 
 statute (Bal. Code, Sec. 4793)^'''' provides that there shall be in this 
 state but one form of action for the enforcement of private rights 
 and the redress of private wrongs, which shall be called a "civil 
 action" ; and this statute evidently means something. It was not 
 intended by this enactment of the law-making ])ower to leave in 
 force or to perpetuate the old distinctions which existed at the 
 common law between legal actions and equitable procedures, so far 
 as the manner of bringing the actions is concerned. It was plainly 
 the intention thereby to abolish such distinctions, and to substitute 
 for all other forms of complaint a statement of facts, for it provides 
 that the complaint shall contain a plain and concise statement of 
 facts constituting the cause of action, and this plain and concise 
 statement of facts must necessarily be the same (if it is a concise 
 statement of facts) whether the relief or remedy sought by the 
 action be equitable or legal in its nature. In this case, if the plain- 
 tiffs had demanded specific performance, the statement of facts on 
 
 "Remin^'ton & Ballinser's Code (1909), § .=5289. 
 "Remington & BallinRer's Code (1909), § 8802. 
 *' Remington & Ballinger's Code (1909;, § I53-
 
 BROWDER V. PHINNEY 245 
 
 which the demand would have been based would have been iden- 
 tically the same statement as that upon which the demand made was 
 based. It is not in accordance with the spirit of the code to turn a 
 litigant out of court, and subject him to the costs and delays of 
 bringing another action before tlie same tribunal on the same plead- 
 ings. If there could be any doubt as to the meaning of the statute 
 in this respect, it is set at rest by the further provision that the 
 defendant may set forth by answer as many defenses and counter- 
 claims as he has, whether they be such as have heretofore been 
 denominated legal or equitable, or both ; for it can not be presumed 
 that the legislature intended to make provisions for the determination 
 in one action of legal and equitable rights alleged in an answer, and 
 to preclude the determination in the same action of legal and equit- 
 able rights alleged in the complaint. It may not have been the inten- 
 tion of the legislature to abolish all the distinctions which have so 
 long existed between legal and equitable proceedings and the rules 
 governing them. That question it is not necessary to discuss here. 
 But it was the evident intention to provide for the trial and deter- 
 mination of all rights, v/hether denominated legal or equitable, in 
 one action, and to relieve from the necessity of a multiplicity of 
 suits to determine controversies between litigants. The superior 
 court is a court of general jurisdiction. It has the power to 
 try either legal or equitable proceedings, having concurrent juris- 
 diction in both. It is not a law court, nor an equity court, nor a 
 probate court, but it is all the time the superior court of general 
 jurisdiction, empowered to try all these differently termed causes 
 tmder the title of a civil action; and when it has once acquired juris- 
 diction of that civil action it may proceed in an orderly way to deter- 
 mine equitable, legal, or probate controversies. 
 
 When the court, which has jurisdiction over both equitable and 
 law proceedings, discovered in the complaint the statement of facts 
 which formed the basis of the controversy between the litigants, 
 he should have proceeded to settle the issues, and not have dis- 
 missed the plaintiffs out of court and imposed upon them the delays, 
 costs and annoyance of bringing another suit, which would neces- 
 sarily have been based upon the same statement of facts ; for at all 
 times, if the plaintiffs had a cause of action at all, it was based upon 
 the contract or lease, coupled with the part performance alleged. 
 The principle evidently sought by the legislature to be engrafted 
 upon our procedure is intelligently stated by Mr. Pomeroy in his 
 work on Equity Jurisprudence (2d ed.). Sec. 183, where it is said: 
 
 "The fundamental principle of this reformed system is, that all 
 distinctions between legal and equitable actions are abolished, the 
 one 'civil action' is the single judicial means of enforcing all rights 
 in a court clothed with both jurisdictions of law and of equity in 
 combination, and in this civil action legal and equitable primary 
 rights, causes of action, and defenses, may be united, and legal and 
 equitable remedies may be obtained. In applying this principle the 
 following results have been well established : Whenever a plaintiff 
 is clothed with primary rights, both legal and equitable, growing out 
 of the same transaction or condition of facts vv^hich thus constituted
 
 246 ACTION'S 
 
 a cause of acti(Mi, ami is ciititleil thereon to an e(|uitahle remedy, 
 ami also to a further legal remedy based upon the su])i)osition that 
 the ei|uitalile relief is granted, and he sets forth all these facts in his 
 petition, and demands a judgment awarding both si)ecies of relief, 
 the action will be sustained; the court will, in its judgment, form- 
 ally grant both the ei|uitable and the legal relief."'" 
 
 And again in Sec. S/ : 
 
 "Wherever the reformed [)rocedure has been administered ac- 
 cording to its plain intent, the necessity of this double judicial pro- 
 ceedings has been obviated; indeed, if the true spirit of the new 
 procedure is accepted by the courts, such a se])aration of equitable 
 and legal rights and remedies, and their ])rosecution in distinct 
 actions, will not perhaps be allowed. The ])laintifif brings one civil 
 action in which he alleges all the facts showing himself entitled to 
 both the equitable and the legal reliefs needed to complete his legal 
 right, and asks and obtains a double judgment, granting, first, the 
 l>roper equitable remedy, and secondly, the legal remedy, by which 
 his juridical position with resi)ect to the subject-matter is finally 
 perfected." 
 
 There v^as suflicient testimony in the case for the consideration 
 of the court or jury on the question of agency and of part per- 
 formance. 
 
 The judgment will be reversed, with instructions to the lower 
 court to try the cause and determine the issues.'' 
 
 *" But see Disbrozv v. CnuDiicry I'. M. Co., 104 Minn. 17 (1908), as to tlie 
 necessity for adopting a theory to control the trial of the case. 
 
 ^' Where the plaintiff proceeds on tlie theory that his remedy is by a suit 
 in equity, but his complaint fails to state facts sufficient to entitle him to 
 equitable relief, but does state facts sufficient to entitle him to a money judg- 
 ment, he will not be dismissed from court, but will be given the relief to which 
 lie appears entitled. Donovan v. McDciitt, 36 Mont. 61 (1907); Madden v. 
 McKcnzic, 144 Fed. 64 (1906). Compare Barnes v. Quicjlcy, 59 N. Y. 265 
 (1874) ; Moore v. Coyne, 113 App. Div. N. Y. 52 (1906). So, also, where in 
 an action based on legal rights it becomes necessary to administer equitable 
 relief, that relief is to be afforded. Trost v. Davis, 31 Ind. 34 (1869) ; Hall 
 V. Sugo, 169 N. Y. 109 (1901); Madden v. McKenzie, 144 Fed. 64 (1906). 
 See, also, Wright v. Wright, 40 N. Y. 437 (1873) I Akin v. Davis, 11 Kans. 
 580 (1873); //«/' V. Guilford County, 74 N. Car. 130 (1876); De Lacy v. 
 Hurst, 83 Ga. 223 (1889); Whitehead v. Szveet, 126 Cal. 67, 58 Pac. 376 
 (1899) ; Todd V. Bettingen, 98 Minn. 170 (1906) ; Kazeheer v. Nunemaker, 82 
 Xebr. 732 (ux>8). The federal courts preserve the distinction between actions 
 at law and suits in equity. Armstrong Cork Co. v. Merchants R. Co., 184 Fed. 
 199 (1910). By act of congTess March 3, 1913, equitable defenses may be 
 given at law. 
 
 The abolition of forms of action docs not, however, alter the sub- 
 stantive rights of the parties. The principles of law and equity remain un- 
 altered. De Witt v. Haxs, 2 Cal. 463 (1852) ; Smith v. Rowc, 4 Cal. 6 (1853) ; 
 Renbcns v. Joel, 13 N. Y. 488 (1836) ; Cole v. Reynolds, 18 N. Y. 74 (1858) ; 
 Wilson V. Green, 135 N. Car. 343 (1904). If a legal cause of action is dis- 
 closed, legal principles apply; if purely equitable, e(iuitable principles apply 
 and will control the case. Stevens v. Neze York, 84 N. Y. 296 (1881) ; Merrill 
 V. Dearing, 47 Minn. 137 (1891) ; Titzsimons v. Drought, 16 App. Div. (N. Y.) 
 454 (1897) ; limmons v. Kiger, 23 Ind. 483 (1864) ; Cadell v. Allen, 99 N. Car. 
 542 (1888) ; Loeh v. Supreme Lodge, 198 N. Y. 181 (1910) ; Niehatis v. Nic- 
 haus, 12^ N. Y. S. 1071 (1910) ; Southern R. Co. v. Hon-ell, 89 S Car. 391 
 (1911). In Britain v. Rossiter, L. R. (1879), 11 Q. B. Div. 123, it is said
 
 ROGERS V. DUHART 247 
 
 JOSEPH ROGERS v. JEAN DUHART. 
 
 Supreme Court of California, 1893. 
 
 97 Cal. 500. 
 
 Appeal from a judgment of the Superior Court of Los Angeles 
 In favor of the plaintiff. 
 
 The complaint averred that the executors of Miguel Leonis let 
 and demised to the plaintiif certain lands for the term of eight 
 months beginning February i, 1891, and thereupon plaintiff took 
 possession, that defendant entered on plaintiff's said described 
 property with cattle and sheep, depastured and destroyed the grass 
 and remained until April 17, 1891. The facts, which were not dis- 
 puted, showed that defendant had been pasturing cattle on the land, 
 but was notified by the executors to remove them by December 31, 
 1890; that defendant without the knowledge of the executors or the 
 plaintiff kept his cattle on the land until April 17, 1891 ; that the 
 land was unenclosed and neither the plaintiff nor any one on his 
 behalf took possession until April 12, 1891, and that plaintiff had 
 been damaged in the sum of $900.'*'^ 
 
 Patterson, J. : The briefs are devoted chiefly to a discussion of 
 the question whether an action trespass quare clausum fregit can be 
 maintained by one who was not in the actual possession of the land 
 at the time the acts complained of were performed. The respondent 
 refers to cases showing that actual possession is not in all cases 
 essential, and the appellant insists that the exceptions are confined 
 to cases in which the plaintiffs were the owners — where the title 
 draws to it the possession for the purpose of redressing injuries to 
 the estate. 
 
 It would be a useless thing to attempt to reconcile the cases on 
 the subject. Decisions adhering to the common-law rules of plead- 
 ing are seldom of any value in determining the sufficiency of a plead- 
 ing under the code, and sometimes lead to serious departures from 
 its letter and spirit. With us, mere forms of action are cast aside. 
 I'Lvery action is now, in effect, a special action on the case. (Jones 
 v. Steamer Cortes, ly Cal. 487, 79 Am. Dec. 142; Goulet v. Asseler, 
 22 N. Y. 225; Mattheivs v. McPlierson, 65 N. Car. 189; Brown v. 
 Bridges, 31 Iowa 145.) And the rigid formalism and subtle distinc- 
 tions found in the rules governing the common-law forms of action 
 are as inapplicable and inane under the modern plan of procedure as 
 the highly dramatic speech, senseless repetitions, and smybolic ges- 
 tures of the formulae prescribed for the five forms of civil actions 
 by the decemvirs of ancient Rome. 
 
 by Lord Esher at page 129: "I think that the true construction of the Judi- 
 cature Acts is that they confer no new rights; they only confirm the rights 
 which previously were to be found existing in the courts of law or in equity; 
 if they did more, they would #ilter the rights of parties, wliereas, in truth, 
 thev only change the procedure." 
 
 ' *" The facts are abridged from the opinion of the court, a part only ot 
 which is printed.
 
 248 ACTIDNS 
 
 Does the complaint state in ordinary and concise lan}:^ua!^e facts 
 sutVicient to constitute a cause of action? That is the question, and 
 not whether it is sutlicient to show trespass qiiarc clausitin, tres- 
 pass •;•/ ct arniis, or any other technical form of action, ex delicto 
 or i\v contractu. 
 
 The common-law rule is, that if plaintiiY declares in trespass 
 ijuorc clausuin, where the action should be case, he will be non- 
 suited at the trial; but under our system, if the facts alleged and 
 proved are such as would have entitled the plaintiff to relief under 
 any of the recognized forms of action at common law, they are 
 sufficient as the basis .of relief, whatever it may be. 
 
 The bill of exceptions herein states facts which would entitle 
 plaintiff to relief in an action on the case, which includes torts not 
 committed with force actual or implied, injuries committed to prop- 
 erty of which plaintiff" has the reversion only, and, in fact, all 
 injuries not provided for in other forms of action. The fact that 
 the plaintiff" alleges he was in possession is immaterial. The allega- 
 tion may be treated as surj"»lusage. "Supertluity does not vitiate." 
 "The nature of the right of action has not been changed, nor has 
 the amount of damages recoverable been aff"ected, but the special 
 and technical rules which govern the use of the two common-law 
 actions mentioned ('trespass' and 'case') have certainly been abro- 
 gated." (Pomeroy's Remedies and Remedical Rights, Sec. 232.) 
 The damages recoverable in the common-law action of trespass 
 qiiare clausum are for the wrong done to the plaintiff"'s possession, 
 as well as to the inheritance, and where the entry is with actual 
 force, treble damages are frequently allowed. A\'hile the plaintiff" is 
 not permitted to recover such damages under the facts proved in 
 the case, he is certainly entitled to recover such damages as would 
 have been recoverable if the action were the common-law "action 
 of case." To hold that the plaintiff could not recover would be to 
 restore tlie old distinctions between these technical actions.*'' 
 
 Judgment affirmed. 
 
 POSTAL f. COHX. 
 
 Supreme Court of New York, Appellate Division, 1903. 
 
 d>i Afp. Div. (;V. Y.) 27. 
 
 Woodward, J. : The return certifies that the pleadings in this 
 action were oral; that the complaint was "for deceit and fraud in 
 tlie sale of a horse" ; that the answer was a general denial and coun- 
 terclaim, and that both parties demanded bills of particulars. The 
 
 "See also, Reed v. Scott, 30 Ala. 640 (1837) ; Wilson v. Ryholt, 17 Ind. 
 391, 79 Am. Dec. 486 (1861) ; Huffman v. I^arsons, 21 Kans. 467 (1879); 
 HazL'kins v. Ovcrstrcet, 7 Okla. 277, 54 Pac. 472 (1898) ; Dnnnctt v. Thornton, 
 73 Conn. I, 46 At). 158 (1900); Brunhcim v. Stratton, 145 Wis. 271 (1911). 
 Compare Hill v. Barrett, 14 B. Men. (Kv.) Si (1853).
 
 POSTAL V. COHN 249 
 
 record on appeal also contains a written complaint setting forth all 
 the elements of a cause of action for fraud, and a bill of particulars 
 tiled by the plaintiff restating in substance the facts alleged in the 
 complaint. The court charged the jury that if they believe no fraud 
 was committed there could be no recovery by the plaintiff, and a 
 verdict was rendered for the plaintiff upon evidence affording no 
 proof of the essential element of scienter. (2 Kent's Comm. [13th 
 ed.] ^482, *489; Atwood v. Small, 6 CI. & Fin. 444; Oberlander v. 
 Spiess, 45 N. Y. 175.) The only evidence tending to prove that the 
 defendants had knowledge of the alleged unsoundness of the horse 
 was to the effect that on the day of the delivery to the plaintiff the 
 horse was seen "wringing wet" while in the defendants' possession. 
 There is no evidence that this condition had continued for any 
 length of time or that it had been noted on any previous occasion. 
 The defendants, in explanation, say the horse was "soft." This evi- 
 dence was, we think, wholly insufficient as proof of scienter. "A 
 party, therefore, relying upon the establishment of a cause of 
 action or a right to a remedy against another, based upon the alleged 
 com.mission of a fraud by such person, must show affirmatively 
 facts and circumstances necessarily tending to establish a proba- 
 bility of guilt in order to maintain his claim. When the evidence is 
 capable of an interpretation which makes it equally as consistent 
 with the innocence of the accused party as with that of his guilt, 
 the meaning must be ascribed to it which accords with his innocence 
 rather than that which imputes to him a criminal intent." (Morris 
 v. Talcott, 96 N. Y. 100, 107.) It does not appear that the tort was 
 at any time waived, and the authorities in this state do not allow 
 this complaint to be considered as setting forth a cause of action for 
 breach of warranty. "Where fraud is alleged as the basis of the 
 act^ion it must be proved. The law will not permit a recovery by 
 proof of a right of action upon contract or of some other character, 
 and this though facts may be stated or may appear which in proper 
 form might sustain such an action." (Truesdell v. Bourke, 145 
 N. Y. 612, 617.) The same rule is declared in Degraw v. Elmore 
 (50 N. Y. i) ; Ross v. Mather (51 N. Y. 108) ; Barnes v. Qiiigley 
 (59 N. Y. 265) ; Salisbury v. Howe (87 X. Y. 128). Conaughty v. 
 Nichols (42 N. Y. 83) is not out of harmony with these views.^° 
 As was pointed out in Greentree v. Rosenstock (61 N. Y. 583), that 
 case maintains only that an action upon contract does not cease to be 
 such because the pleading contains an incorrect conclusion of law, 
 having the aspect of a tort. For the same reason Town of Green 
 Island v. Williams (79 App. Div. 260) does not aid the plaintiff. 
 The case at bar is in all material respects similar to Ross v. Mather 
 {supra). In that case the plaintiff had judgment in an action to 
 recover damages upon the sale of a horse. The complaint contained 
 
 ^ In the case referred to the action was brought against the defendants 
 as factors to recover the proceeds of merchandise consigned for sale. The 
 complaint contained an averment that defendants had "converted" the sum 
 due. The plaintiff having established a cause of action in contract merely, 
 the referee refuse to allow an amendment and entered a nonsuit. Judg- 
 ment was reversed.
 
 J5<> ACTIONS 
 
 all the clcnienls of a caiiso of action for fraud; not as averments 
 of conclusions of law. but, as in the case here under review, state- 
 ments of si>ecitk facts. Only a cause of action for breach of war- 
 rantv was jiroved. In reversing the judgment of the general term, 
 entered upon an order denying defendant's motion for a new trial 
 and directing iudgment upon the verdict, the Court of Appeals said: 
 "The code never intended that a i>arty who had failed in the i)er- 
 formance of a contract merely, should he sued for a fraud, or that 
 a partv who had committed a fraud should he sued for a breach of 
 contract, unless the fraud was intended to be waived. The two 
 causes of action are entirely distinct, and there can be no recovery 
 as for a breach of contract, where a fraud is the basis of the com- 
 plaint." 
 
 Section \oy of the Municii)al Court Act (Laws of 1902. ch. 
 580) requiring that the allegations of a ])leading must be liberally 
 construed, does not contem])late such looseness of construction as 
 would be necessary to take this case out of the condemnation of the 
 rule of these decisions. There was rather an entire failure of proof 
 of the cause of action alleged within the meaning of section 173 of 
 that act. 
 
 We think the judgment should be reversed.'^ 
 
 HARTFORD r. SMITH. 
 
 United Statks Circuit Court of Apprals, Third Circuit. 1912. 
 
 199 Fed. 763. 
 
 In error to the District Court of the United States for the 
 Western District of Pennsylvania; James S. Young, Judge. 
 
 Action by P. C. Hartford against Roland H. Smith and another, 
 doing business as A. J. Davis & Co. Judgment for defendants, and 
 plaintiff brings error. Affirmed on condition. 
 
 J. B. Mcl'iiF.KSON, Circuit Judge; The Pennsylvania act of 1887 
 (P. L. 271 ; 3 Pepj). & Lew. Dig. Laws, 5819, 5825) undertakes to 
 abolish the distinctions theretofore existing between actions ex 
 contractu and actions ex delicto, but only so far as related to pro- 
 
 " Accord: Bermel v. Haniischfeger, 97 APP- I^'v- N. Y. 402 (1904). 
 Compare Tyndall v. Bcatty, 57 Misc. (N. Y.) 646 (1908). 
 
 AltliouRli the distinctions in the forms of actions ex contractu and ex 
 delicto are abolished and one form of action substituted, it is generally said 
 that the principles of law which govern remain unchanged. Lubert v. Chanvi- 
 tcaii. 3 Cal. 458 (1833) ; Sampson v. Sitae ffer, 3 Cal. 196 (1853) ; Anderson 
 V. Case, 28 Wis. 506 (1871) ; Pierce v. Carey, 37 Wis. 232 (1873) ; Minneap- 
 olis H. IV. V. Smith, 30 Minn. 399 (1883); Hozi-ard v. Gunnison, 12 Ohio 
 Dec. 684 (1902) ; Jones v. Winsor, 22 S. Dak. 480 (1908) ; Norton v. Reed. 
 253 Mo. 236 (1913); ll'elcli V. Seattle & M. R. Co., 56 Wash. 97 (1909); 
 Maronen v. Anaconda C. Co., 48 Mont. 249 (1913) ; Cullen v. Dickenson, t,t, 
 S. Dak. 27 (1913). The distinction between real and personal actions is not 
 so abolished as to permit the title to real property to be determined in replevin. 
 Ricketts V. Barrel, 53 'nd. 470 (1876).
 
 HARTFORD t'. SMITH 25 I 
 
 cedure. Sections i and 2 put this restriction affirmatively'*- — "so 
 far as relates to procedure" — while section 8 with greater emphasis 
 puts it negatively as well as aflirmatively : 
 
 "The true intent and meaning of this act is that * * * as toJ 
 the action (evidently actions) herein recited, it applies to the pro J 
 cedure only, and the legal rights of the party are not in any way to' 
 be affected thereby." 
 
 As a contribution to the history of the act, the writer of this 
 opinion may state of his own knowledge that a draft of the statute 
 was submitted to the late Judge Simonton, of Dauphin County, for 
 consideration and criticism, and that the sentence just quoted from 
 section 8 was inserted at his suggestion, in order that no doubt 
 might exist about the limited scope of the legislation^ And the 
 appellate courts of Pennsylvania have taken this view in several 
 cases. FrLL:.x^^ath(nuav^_jj^^_9.Rn, 19 Atl. loii; Wmkleblake_ 
 y^_Jjm^y±e^_j^i_]^^y^28 Atl. 937 (a decision concurred in by 
 Justice Williams of Tioga County, who has always been under- 
 stood to be the draftsman of the act) ; and Busch v. Calhoun, 14 Pa. 
 Super. Ct. 582. The mere label of the actionTrnoFdecisiverArvvas 
 said byjustice Mitchell in Fritz \. Hathaway : 
 
 "Accurracy and technical precision have no terrors, except for 
 the careless and the incompetent; and the act of 1887 was not in- 
 tended to do away with them. As to all matters of substance, com- 
 l)leteness, accuracy and precision are as necessary now to a state- 
 ment as they were before to a declaration in the settled and time- 
 honored forms." 
 
 See also, Osboni v. Bank, 154 Pa. 137, 26 Atl. 289; Corrv v. 
 Railroad, 194 Pa. 219, 45 Atl. 341, and Brandmeier v. Pond Creek 
 Co., 22g Pa. 284, 78 Atl. 273. 
 
 It is clear, therefore, that, although the name of the action now 
 before us is "trespass," the legal rights of the parties are to be de- 
 termined as if it were the old action of trover and conversion. In- 
 deed, this is conceded, and we may turn at once to the statement of 
 claim in order to discover what particular wrong is complained of. 
 The statement is not ambiguous. It recites that the defendants were 
 stock-brokers; that the plaintiff gave them certain orders to buy 
 stocks on a margin ; that he put up whatever margin was demanded, 
 this being always sufficient to protect them ; that he was not notified 
 that the shares would be sold, and gave no order to sell ; and that 
 the sale produced a balance in his favor of $5,527.71, "which it was 
 the duty of defendants, as plaintiff's brokers, so as aforesaid to 
 immediately pay over to j)]aintiff upon or without demand." The 
 statement continues : 
 
 "The sections of the act of 1887 referred to are as follows: "So far as 
 relates to procedure, the distinctions heretofore existing between actions ex 
 contractu be abolished, and that all demands, heretofore recoverable in debt, 
 assumpsit or covenant, shall hereafter be sued for and recovered in one forrri 
 of action to be called an "action of assumpsit." § i. So far as relates to pro- 
 cedure, the distinctions heretofore existing between actions ex delicto be 
 abolished, and that all damages, heretofore recoverable in trespass, trover, 
 or trespass on the case, shall hereafter be sued for and recovered in one 
 form of action to be called an "action of trespass." § 2.
 
 252 ACTIONS 
 
 "Plaintiff further says that defendants wholly disregarded their 
 duties to him. as hereinbefore mentioned, to keep and maintain the 
 proceeds of the sale of said stocks and the margins deposited witli 
 them by plaintiff" as a fund solely and entirely applicable for the 
 purpose of carrying out these particular transactions, but did, with 
 intent to defraud plaintiff, convert and ai)iM-opriate said fund to 
 their own use, or the use of some other i)erson or persons, and that 
 on November 12, 1909, and continuing from that time until the 
 present, defendants, with intent to defraud plaintiff, neglected, 
 failed and refused to deliver or pay over to plaintiff the balance 
 of said fund amounting as above mentioned, to wit, $5,527.71, 
 which sum defendants have illegally, unlawfully, and fraudulently 
 misappropriated and converted to their own use, or to the use of 
 some other person or persons." 
 
 The action is trover for the conversion of money, although the 
 plaintiff in error desires to treat it as an action for the conversion 
 of the stocks. The learned judge held that in its present form it 
 could not be maintained, and we agree with this conclusion. It 
 should have been assumpsit, and if the suit had been dismissed for 
 this reason, without prejudice to the plaintift''s right to bring tlie 
 proper action, we might affirm the judgment at once. It is easy to 
 understand why the action was brought in tort. Under the Pennsyl- 
 vania practice some kinds of tort may still be redressed in a suit 
 begun by a capias ad respondendum, which requires the entry of 
 bail to the action. This suit was so begun, and, as a judgment for 
 the plaintiff would also have supported a capias ad satisfaciendum, 
 the defendants might have been committed to prison, until dis- 
 charged according to law. But no such result would follow a re- 
 covery in assumpsit, and, as already stated, the suit should have been 
 in that form of action. So far as appears from the uncontradicted 
 evidence, the defendants were under no obligation to return specific 
 money to the plaintiff, but owed him a duty that might be dis- 
 charged by the payment of money generally. See Little v. Gihbs, 
 4 N. J. L. 211 ; Davis x. Thompson, io_ S.ad. (Pa.) 563, 14 Atl. 169; 
 Aurentsj.'. Portejr. 56 Pa. iiq; Life Ass'n v. Catlin 2 Walk. (Pa.) 
 33S7^8Q'c. 2014, H, note 53 ; A. & E. Encyc. of Law (2d ed.) 
 652, § 5, note 7. 
 
 The practical reason against affirming the judgment as it stands 
 is this: It is not a mere dismissal of the suit without prejudice, but 
 a judgment in favor of the defendants, and with the present record 
 the doctrine of res judicata might give the plaintiff trouble if he 
 brought another suit. This would be unjust, for the defendants con- 
 cede that they owe the money, and are only defending against the 
 drastic remedy that has been invoked. Indeed, they offered the 
 plaintiff a note for the full amount of his claim, although the note 
 was afterwards returned. In order, therefore, that tlie litigation 
 may perhaps end here, w^e shall enter no judgment for the present; 
 but we direct the clerk of this court to notify counsel that, if the 
 defendants shall confess judgment to the plaintiff on or before 
 November 30, 1912, in an action ex contractu for $5,527.71, with 
 interest from November 12, 1909, and if the district court shall cer-
 
 PEOPLE EX REL. V. IIEALY 253 
 
 tify US that this has been done, we will then affirm the judgment. 
 Otherwise, we shall be obliged to reverse it formally, with leave to 
 the plaintiff to apply to the district court for permission to change 
 the form of action under the Pennsylvania statute of 1871 (P. L. 
 265; 3 Pepper & Lewis' Digest Laws, col. 5894). The act reads as 
 follows : 
 
 "In all actions pending or hereafter to be brought in the several 
 courts of this commonwealth, said courts shall have power at any 
 stage of the proceedings to permit an amendment or change in the 
 form of action if the same shall be necessary for a proper decision 
 of tlie cause upon its merits," etc. 
 — and seems to provide a remedy for the existing situation." 
 
 SECTION 3. PUBLIC CIVIL ACTIONS. =* 
 (a) Quo Warranto. 
 
 THE PEOPLE ex rel RASTER v. HEALY. ^ 
 
 Supreme Court of Illinois, 1907. 
 230 ///. 280. 
 
 E. O. Raster filed in the Circuit Court of Cook County a petition 
 for a mandamus against J. J. Healy, state's attorney for that county, 
 commanding him to sign a petition for leave to file an information 
 in the nature of a quo warranto against one H. L. Brand charged 
 with having usurped the office of treasurer of tlie Illinois Publish- 
 ingjCompany, an Illinois c<)r[)()ralion. It appeared from relator's 
 allTdavit attached to the petition for leave to file the information that 
 Raster was secretary of that company and a director; that the board 
 of directors consisted of ten persons ; that by the by-laws a majority 
 of the board was required to constittite a quorum, that Brand had ) 
 been elected at a meeting held by five directors only and had never \ 
 been properly and legally elected as trasurer, but had intruded into / 
 and unlawfully held the office. To Jhe petition for a mandamus V 
 Healy demurred. The demurrer was sustained by the circuit court 
 and the petition dismisledr" Raster appealed. •^'^ 
 
 Scott, J. : This controversy involved the construction of sec- 
 tion I of chapter 112, Hurd's Revised Statutes of 1905, which reads: 
 "That in case any person shall usurp, intrude into, or unlawfully 
 hold or execute any office or franchise, or any office in any corpora- 
 tion created by authority of this state (or any person shall hold or 
 claim to hold or exercise any privilege, exemption or license, which 
 
 "See also, Duff eld v^Rcwm^g, 144 Pa. 520, 23 Atl. 4 (i8gi) ; Miller y. 
 Lehigh Co., 181 Pa. 6J2, :^j Atl. 824 (1897) ; Raymond Syndicate v. Uiittcn^ 
 tag, 177 MassTsSJ (igoi) ; Pratt v. Davis, 118 III. App. 161 (1905). 
 
 '"* See generally High's Extraordinary Legal Remedies. 
 
 " The arguments of counsel and part of the opinion of the court are 
 omitted.
 
 254 ACTIONS 
 
 has heoii ini|)rnpcrly or witliout warrant of law issued or granted 
 by any olTicor. hoanl, commissioner, court, or other person or per- 
 sons authorized ov empowered by law to grant or issue such ])riv- 
 ilege. exemption or license), or any iniblic ollicer, shall have done, 
 or sutTered any act which, by the provisions of law, works a for- 
 feiture of his office, or any association or number of persons shall 
 act within this State as a corporation w ithoul being legally incorpo- 
 rated, or any corporation does or omits any act which amounts to a 
 surrender or forfeiture of its rights and privileges as a corporation, 
 or exercises powers not conferred by law, or if any railroad com- 
 pany doing business in this state shall charge an extortionate rate for 
 the transix>rtation of any freight or passenger, or shall make any- 
 unjust discrimination in the rate of freight or passenger tariff over 
 or upon its railroad, the attorney-general or state's attorney of the 
 ]iroper county, either of his own accord or at the instance of any 
 individual relator, may present a petition to any court of record of 
 competent jurisdiction, or any judge thereof in vacation, for leav e 
 to fil e an inf ormation in the nature of a quo warranto , ir; i t^ | he J iame 
 ot the peo i2.1o "f ilic ^\;<Ar <<'' Illinois, and if such court or judge shall 
 te satisfied thai ilurc is niobable ground for the proceeding, th.e 
 court or judge may grant the petition, and order the information to 
 be filed and process to issue. When it appears to the court or judges 
 that the several rights of divers parties to the same office or fran- 
 chise, privilege, exemption or license, may properly be determined 
 on one information, the court or judge may give leave to join all 
 of such persons in the same information, in order to try their re- 
 spective rights to such office, franchise, i)rivilcge, exem[)tion or 
 license." 
 
 It is contended by the ai>pellee that this statute vests the state's 
 attorney of the proper county with an arbitrary discretion in refer- 
 ence to seeking leave to file an information in the nature of a quo 
 V warranto in the name of the people; that in the exercise of that dis- 
 (cretion he can not be controlled by the courts, and that he may 
 /refuse to seek the leave for any reason which to him seems suffi- 
 /cient or may refuse when no reason at all can be assigned for so 
 ' doing; while apj)ellant argues that in a case such as that now be- 
 fore us, where the proposed individual relator has a personal and 
 private interest in the litigation w^iich he desires to set on foot and 
 where the interest of the public is purely or largely theoretical, the 
 only discretion vested in the legal representative of the people is a 
 discretion to determine wdiether the documents presented to him by 
 the individual are in proper legal form, and whether the party seek- 
 ing the institution of the suit presents evidence of such facts as 
 establish his legal right to the remedy to be afforded by judgment 
 against the respondent in the quo warranto proceeding. 
 
 Originally a proceeding of this character was by writ of quo 
 warranto against any one who claimed or usurped any office, fran- 
 chise or liberty, to inquire by what authority he supported his claim, 
 in order to determine the right. Later the practice was changed and 
 an information in the nature of a writ of quo warranto succeeded
 
 PEOPLE EX REL. V. HEALY 255 
 
 the former method. (3 Blackstone's Com. 262, 263.) By the com- 
 mon law the proceeding in quo warranto was employed exclusively 
 as a prerogative remedy, to punish a usurpation of franchises or 
 liberties granted by the crown, and never as a remedy for private 
 citizens desiring to test the title of persons claiming to exercise a 
 ]niblic franchise or desiring to establish a private right. In Eng- 
 land the information, as a means of investigating and determining 
 civil rights between parties, owes its origin to the statute of 9 Anne, 
 chapter 20, which authorized and required the proper officer to 
 file the information by leave of court, upon the relation of any person 
 desirous of prosecuting the same, against any person usurping or 
 intruding into any municipal office or franchise in the kingdom.^'' 
 (High on Extraordinary Legal Remedies, 3d ed., sec. 602.) That 
 statute, however, having been passed in the year of our Lord i/io, 
 has never been in force in this state. ^'^ 
 
 It will be observed from examination of section i, supra, that 
 the proceeding is made the vehicle for the assertion of many rights, 
 both private and public, which could not have been vindicated by 
 this method at the common law. As originally used, the proceeding 
 was criminal in character, and the offender, upon conviction, was 
 liable both to fine and imprisonment, as well as ouster from the 
 franchise or liberty which he had wrongfully usurped. Under our 
 statute the proceeding is, in fact, a civil remedy when used for the 
 protection of private rights, and in the event of a judgment in 
 favor of the defendant, costs may be awarded against the relator. '^^ 
 (Ch. 112, sec. 6, stipra.) 
 
 '^ See opinion of Tindal, C. J., in Darlcy v. The Queen, 12 CI. & F. 520 
 (1846) at p. 536. Proceedings under the old writ of quo warranto were civil. 
 W'hen proceedings by information in the nature of quo warranto were sub- 
 stituted these were at first deemed criminal, as they involved fine or impris- 
 onment in addition to the ouster. Nevertheless, proceedings at the instance 
 of private relators were soon regarded as merely civil. King v. Francis, 2 
 T. R. 484 (1788). And now by the act of 1884, 47 and 48 Victoria, ch. 61, § 15, 
 amending the judicature act, proceedings in quo warranto are deemed to be 
 civil. For a recent case, see TJie King v. Beer, L. R. (1903) 2 K. B. Div. 
 693- . 
 
 ■'" In Illinois, acts of parliament made in aid of the common law prior to 
 the fourth vear of the reign of James I (1607) are in force until repealed. 
 M'Cool V. Smith, i Black (U. S.) 459 (1861). 
 
 '"^ In the United States the remedy by quo warranto is generally regarded 
 as a purely civil proceeding. Foster v. Kansas, 112 U. S. 201 (1884) ; Coni- 
 )nercial Bank v. The State, 12 Miss. 439 (1845) ; State v. Ashley, i Ark. 279 
 (1839) ; State v. McDanicl, 22 Ohio St. 354 (1872) ; Attornev-General v. Dela- 
 ware & B. B. R. Co., 38 N. J. L. 282 (1876) ; Kcspnhlica v. ^Vray, 2 Yeates 
 (Pa.) 429 (1799) ; Attorney-General v. Sullivan, 163 Mass. 446 (1895) ; State 
 V. Standard Oil Co., 218 Mo. i (1909). 
 
 In New York, the writ of quo warranto is abolished, but the same relief 
 may be had in an action brought in the name of the people of the state. 
 Code of Civil Procedure, §§ 1983-1986; People v. McLaughlin, 174 N. Y. 450 
 (1903) ; People v. Locw, 19 Misc. (N. Y.) 248 (1897) ; People v. Hinsdale, 43 
 Misc. (N. Y.) 182 (1904). .'\nd in code jurisdictions although the form of the 
 writ is abolished the substance of the proceeding remains unaltered. Terri- 
 tory v. Hanxhurst, 3 Dak. 205 (1882) ; IVishek v. Becker, 10 N. Dak. 63 
 (1900) ; State v. Masons and Odd Felloivs Joint Stock Assn., 91 Kans. 9 
 (1913)-
 
 256 ACl'lOXS 
 
 Hv the ooiiiinon law, and in I'^ni^^Iand prior to the passage of the 
 statute of Anno, arbitrary (hscretion was lodj^ed in the attorney- 
 jjfencral to determine whether he would nio\e, and that discretion 
 could not be controlled or reviewed. {.Ittorncy-cicncral v. Iron- 
 mongers' Co., 2 Beav. 314; .Ittorncy-fjoicral v. Wright, 3 Beav. 447; 
 People y. .Ittorney-general, 22 Piarl). 114; People v. Faircliild, 8 
 Hun. 334 ; /;/ re Gardner, 68 N. Y. 467 ; Everding v. McGinn, 23 Ore. 
 15.) In extending^ the scope of this proceedinc;^ the le,i;islature of 
 this state has not by express words changed or altered the common 
 law so far as the discretion vested in the attorney-general or state's 
 attorney is concerned. l)ut the character of the discretion possessed 
 by these ot^icers must be determined, to some extent, by considera- 
 tion of the rights which the law-making ])ower has committed to that 
 discretion. 
 
 By the common law the information in the nature of a quo 
 warranto was solely a prerogative remedy. No suit was ever prose- 
 cuted by that remedy at the instance of a private person or for the 
 assertion of a private right. It was used only where a wrong had 
 been done, or was alleged to have been done, to the king, and it was 
 therefore the rule that only the king, or his representative, should 
 determine whether a suit should be brought to enforce the right of 
 the king. Where jurisdiction is given the courts to enforce the 
 rights of private individuals by this method it is manifest tliat the 
 power to determine whether the suit should be brought should not 
 be lodged in the legal representative of the sovereign power, when, 
 as here, the right of the citizen is substantial and the concern of the 
 state with regard to the litigation is practically or entirely theoretical. 
 In such case, the reason for the rule having failed the rule itself 
 should fail. 
 
 When the legislature extended the right to private individuals to 
 assert private rights by this proceeding, it is apparent that it was 
 intended that they should have an opportunity to seek redress for 
 tlieir wrongs by making application to a court, or judge thereof, for 
 leave to file an information. The duty resting upon the state's 
 attorney to sign and present a petition for leave to file an informa- 
 tion in the nature of a quo warranto where evidence of facts is prop- 
 erly j)resented to him by a proposed relator which shows prima facie 
 that the relator is legally entitled to the relief, in reference to a pri- 
 vate right, which v/ould be offered him by a judgment in his favor 
 in a quo warranto proceeding, is an absolute one. It follows, there- 
 fore, that where he declines to act for any reason other than the 
 facts, evidence of the existence of which is presented to him, do not 
 warrant the relief which the proposed relator seeks, or that the peti- 
 tion and affidavit or af^davits presented to him are not in proper 
 legal form, his declination is an abuse of his discretion, conceding 
 that his construction of the statute be correct, and such an abuse 
 of discretion as amounts to a refusal on his part to exercise his dis- 
 cretion at all and to a refusal to perform the duty enjoined upon 
 him by the law. 
 
 Courts of last resort in cnir sister states have frequently found 
 themselves confronted with the same difficultv which we are now
 
 TFOPLE EX REL. V. HEALY 257 
 
 considering, where legislatures have extended the scope of the rem- 
 edy by quo warranto to include the enforcement of private right 
 but have failed to impose by express words a positive duty upon the 
 attorney-general or state's attorney to proceed at the instance of 
 the individual relator, or have failed to provide that the proceeding 
 may be instituted without the co-operation of those officers. It has 
 sometimes been held that the arbitrary discretion of the public prose- 
 cutor still exists as at common law, and that if he refuses to lend his 
 name to the proceeding the individual relator is without remedy, 
 even though the refusal of the officer results from political, selfish 
 or other improper considerations. In other states relief for the 
 relator has been suggested by various methods, not substantially 
 different, so far as the result to be attained is concerned. -^^ 
 
 The statute of Anne does not expressly require the officer of the 
 crown to file the application for leave, and yet Rex v. Trelawney, 
 3 Burr. 1616, and Rex v. Wardroper, 4 Burr. 1964, hold that under 
 that statute the officer is without discretion in the matter but must 
 apply at the instance of the private relator, and that the only dis- 
 cretion is in the court; and in State v. Elliott, 13 Utah 200, it was 
 said that "except when changed by statute the rule of procedure is 
 practically the same in this country as in England" under the stat- 
 ute of Anne. 
 
 It is, of course, true, that in many cases where the individual 
 relator has a private and personal interest in the suit which he seeks 
 to set on foot the public also has a substantial interest therein. No 
 injury can result to the public in such instances, however, by re- 
 quiring the prosecutor to proceed, for the reason that the court, or 
 the judge thereof, when the petition for leave to file the information 
 is presented, is vested with a sound legal discretion to be exercised 
 in determining whether leave to tile the information should be 
 granted, and the court or the judge thereof may, in the exercise of 
 
 ^ Under statutes confirming the right to petition for a quo warranto to^ 
 the attorney-general, the consent of that officer is necessary although the pro-^ 
 ceedings are at the instance of a private relator. Wallace v. Anderson, 5C 
 Wheat. (U. S.) 291 (1820) ; Barnum v. Gihnan, 27 Minn. 466 (1881) ; .S"/fl/t' 
 V. Cook, 39 Ore. 2,77 (iQoi) ; People v. McCldlan, 118 App. Div. (N. Y.) 177 
 (1907). But it has been intimated in some cases and held in others that the 
 court will in a proper case compel the state officer to file the information. 
 State v. Dclicsselinc, i McCord (S. Car.) 52 (1821) ; In re Bank of Mount 
 Pleasant, 5 Ohio 250 (1831) ; Larnoreaux v. Ellis, 89 Mich. 146 (1891) ; Cam 
 V. Broivn, ill Alich. 657 (1897) ; State v. Frazicr, 28 Neb. 438 (1889) ; State 
 V. Withers, 121 N. Car. 376 (1897) ; State v. Dahl, 69 Minn. 108 (1897)- 
 <^ In Pennsylvania, under the Act of June 14, 1836, P. L. 621, §§1-2, quo 
 warranto for the usurpation of a public office must be at the suggestion of 
 the attorney-general or some authorized agent of the commonwealth. Com-^ 
 tnonweallliv^iirrcll, 7 Pa. 34 (1847), the rightsof a private relator are" 
 colrRned to cases~vvhere his individual interests are involved. Coinmonwcalth 
 V. Me an or, 16 7 Pa. 202 (1895); Co-minomveatth v. Bozvditcli7 2\7 PaT^27~ 
 Tioo7^ : Ala thcws Petition. 238 Pa. 419 (1913)- A private relator, though 
 having aiTinterest is not entitled to the writ for the purpose of forfeiting a 
 charter. Commnnzvealtli v. Phil adcjj'hia &^C. C. R. Co,, 10 W. N. Cas. 400 
 (1881) ; M'urpHyvTP amicrt^aM, 20 Ta. 415 (i8S3)- 
 
 17 — Civ. Proc. 
 
 fwa
 
 25S ACTUIXS 
 
 tliat discretion, fully protect the rij^hts of the ])ul)lic, and may under 
 some circumstances, where the puhlic weal demands, refuse leave 
 to tile the information although the clear legal right of the relator 
 is estahlished. (McPlioil v. People, 160 111. 77.)'^". The rights and 
 interests of the puhlic being thus fully protected by a sound legal 
 discretion lodged in the court, or the judge thereof in vacation, it 
 is manifest that there is no occasion for the exercise by the state's 
 attorney or attorney-general of a discretion to be used for the same 
 purpose and for no other purjwse. 
 
 The discretion possessed by the attorney-general at the common 
 law is no doubt now possessed by the attorney-general or state's 
 attorney in all cases which are, in fact, prosecutions on the part of 
 the people and which involve no individual grievance of the re- 
 lator/'^ One such case is where the wrong is the usurpation of an 
 appointive public office to which, in the event of judgment of ouster, 
 no particular individual will have a right to succeed; and another 
 example is where the object is to secure a judgment ousting a cor- 
 poration from the enjoyment of all the franchises which it exer- 
 cises. In cases, however, where the proposed relator has an individ- 
 ual and personal right, distinct from the right, if any, of the public, 
 which is enforceable by a proceeding in quo warranto, and where 
 he presents to the state's attorney a proper petition for his signature 
 with evidence of the facts necessary to establish the right, it is the 
 duty of that officer to apply for leave to file an information in the 
 nature of a cjuo warranto, and if he refuses when the matter is 
 properly presented to him, he may be compelled by mandamus to 
 sign and file the petition for leave. 
 
 Reversed and remanded. ^- 
 
 '"King v. Parry, 6 Ad. & El. 810 (1837) ; Queen v. Cousins, L. R. (1873), 
 8 Q. B. 216; Commo nwealth v. Cli iley, 56' Pa. 270 (1870) ; State v. Smith, 48 
 Vt. 266 ( 1876) r TTUycr v. M inTermann, 70'N. J. L. 512 (1904) ; State v. Vil- 
 lage of Kent, 96 Minn. 255 (1905) ; People v. Hepler, 240 111. 196 (1909) ; 
 Koven v. Stanley, 84 N. J. L. 446 (1913) ; People v. Union Con. E. R. Co., 
 263 III. 32 (1914). The discretion must be exercised according to law and is 
 reviewable. People v. Anderson 239 111. 266 (1909). 
 
 '^People V. Grand River B. Co., 13 Colo. 11 (1889) ; Haupt v. Rogers, 170 
 Mass. 71 (1898) ; State Railroad Commission v. People, 44 Colo. 345 (1908) ; 
 Thirte enth & F. S. P. R. Co. v. Broad Str eet R. T. Co^giQ Pa. 10 (1907); 
 'Com moin^'ealth v. Croz<', 218 Pa. 234 (1907).' 
 
 " See further State v. Stezvart, 6 Houst. (Del.) 359 (1881) ; State v. Han- 
 cock, 2 Penn. (Del.) 231 (1899) ; Attorney-General v. N. ¥., N. H. & H. R. 
 R., 197 ;Mass. 194 (1908) ; State v. Grimm, 220 Mo. 483 (1909) ; Anderson v. 
 Myers, -jj N. J. L. 186 (1908) ; People v. Karr, 244 111. 374 (1910) ; C ommon - 
 we alth V. Smail. 238 Fa. 106 (1913) ; State v. Kuhns, 89 Atl. i (Del. 1913)- '
 
 FISHER Z\ CITY OF CHARLESTON 259 
 
 (d) Mandamus. 
 
 FISHER V. CITY OF CHARLESTON. 
 
 Supreme Court of Appeals of West Virginia, i88i. 
 
 17 W. Va. 595. 
 
 V 
 
 Henry T. Fisher petitioned the Circuit Court of Kanawah 
 County for a mandamus against the City of Charleston, averring! 
 that he had obtained judgment against the city for $744.80, which 
 was unpaid, and that he knew of no property out of which the judg-j 
 ment could be made. The prayer was for a rule on the mayor and 
 city officials to show cause^whyL.a writ of mandamus should not be 
 issued, commanding the treasurer to pay the petitioner out of any 
 "money in his hands not appropriated, and for want of such funds 
 commanding the mayor and councils to levy a tax sufficient to sat- 
 isfy the jttdgment. 
 
 The mayor and other officials moved to quash the rule, which "i 
 motion the court overruled. They then filed an answer averring 
 that they had levied a tax sufficient to satisfy the judgment and had 
 made sundry payments to Fisher. 
 
 To the answer the plaintiff demurred, and the demurrer having 
 been overruled, replied generally. A jury sworn to try the issue 
 found a special verdict to the effect that the city officers had made 
 a levy which included the plaintiff's claim. There were other claims 
 provided for in the same tax levy. On this verdict the court refused 
 a peremptory mandamus and dismissed Fisher's petition. Fisher 
 brought error. *^^ 
 
 Green, P. J. : Originally a mandamus v^-as a mandate issued di-1 
 rectly by the King of England to his subjects, ordering the per- 
 formance of some specified act. It was in no sense a judicial writ J 
 Such mandates have long since become obsolete. Any such mandate 
 was called originally a mandamus ; but gradually a m.andate ceased 
 to be called a mandamus, and this name was applied to a judicial 
 writ issued by the King's Bench in the name of the King. In this 
 court the King originally sat in person, and when he ceased to do so, 
 yet by a fiction of the law he was still presumed to be present. At 
 first these writs were issvied by the King's Bench only in cases in 
 which the King or the public at large was interested, and for these 
 reasons this writ was called a prerogative writ and was regarded 
 as not issued of strict right but only at the will of the sovereign. 
 But in modern times even in England there is a tendency to treat 
 this writ as a writ of right, and to strip it of its prerogative char- 
 acter. In this country it has lost its prerogative nature and is re- 
 garded very much as a v/rit of right and in the nature of an ordi- 
 nary suit between parties, when the aggrieved party shov/s himself 
 entitled to this kind of relief. See Gilman v. Bassnett, 2)2) Conn. 298; 
 
 ^ The statement of facts is abridged from the opinion of the court, part 
 of which is omitted.
 
 26o 
 
 ACTIONS 
 
 .tsbcrry v. r>t'a:ers, 6 Tex. 4^7; ConiDiOfi^cralfli v. Denuison, 24 
 How. 66:'* 
 
 It is true, that sonic of the courts in this country still ajipear to 
 regard this writ as preroj^ativc in its character. See People v. 
 lioani of Metropolitan Police, 26 N. Y. 316. This appears especially 
 to he the case in Illinois. See Inspectors of Peoria v. The People, 
 20 111. 530; People V. Hatch, t,^ 111. 134-140; City of Ottawa v. The 
 People, 48 111. 240. Rut the weight of American authorities is de- 
 cidedly opposed to these views, and we may regard what Chief 
 justice Taney said in 'T/ie Commonivealth of Kentucky v. Dennison, 
 Governor, etc., 24 How. 97, on tliis ]H)int as correctly stating the 
 law. Me says; 
 
 "It is well settled, that a mandamus in nujclcrn i)racticc is noth- 
 ing more th.an an action at law between the parties, and is not now 
 regarded as a prerogative writ. It undoubtedly came into use by 
 virtue of the prerogative powers of the English crown and was sub- 
 ject to regulations and rules, which have long since been disused. 
 But the right to the writ and the power to issue it has ceased to 
 depend upon any prerogative power, and it is now regarded as an 
 ordinary process in cases, to which it is ai)plicable. It was so held 
 by this court in the cases of Kendall v. United States, 12 Pet. 615; 
 Kendall v. Stokes et al, 3 How. lOO."''''' 
 
 The use of this writ as a judicial writ issued by the King's 
 Bench may be traced to the early part of the fourteenth century, 
 but it was rarely used till the latter part of the seventeenth century. 
 See Middleton's Case, 2 Dyer, 322 b. temp. 16 Elz. ; Bogg's Case, 11 
 Coke 93; Pozvers, J., in Queen v. Heathcote, 10 Mod. 48; Dr. Wid- 
 dington's Case, i Lev. part I, 23, 13 Car. IT; Rex \. Askezv, Burr. 
 2186; King v. City of Canterbury, i Lev. part I, 119; Sir Thomas 
 Earle's Case, Carth. 173; Rex v. Mayor of Oxford, 2 Salk. 428. 
 The mode of proceeding in this early day to obtain a writ of man- 
 damus was by a motion based upon an at^davit for a rule to show 
 cause, why a writ of mandamus to perform a specified act should 
 not be issued. The hearing of this motion was usually ex parte, no 
 notice thereof being given to the other party. If the motion was 
 
 "Rex. V. Harkcr. 3 Burr. 1265 (1762) ; People v. Steele, 2 Barb. (N. Y.) 
 397 (1848); Queen v. Church Wardens of All Saint.s, IJ'icjan, L. R. (1876) 
 I App. Cas. 611. 
 
 " "The correct rule deduced from tlie modem practice, seems to be that 
 mandamus, Avhile no longer a mere prerogative writ, is yet somewhat of a 
 discretionary writ and should be issued not in the exercise of an arbitrary 
 and capricious discretion, but in the exercise of a sound legal discretion in 
 accordance with the established rules of law." State v. Gibson, 187 Mo. 536 
 at page 555. Accord: State v. Wilson, 123 Ala. 250 (1898) ; Knight v. Thomas, 
 93 Maine 494 (1900) ; Slate v. Board of Cohnnissioners, 162 Ind. 580 (1903) ; 
 Cay V. Torrance, 145 Cal. 144 (1904) ; People v. Olsen, 215 111. 620 (1905) ; 
 SUerii'ood v. Rynearson, 141 Mich. 92 (1905); Shepard v. Oakley, 181 N. Y. 
 339 (1905) ; l» '<-' Prceman, 73 N. J. L. 329 (iQO?) ; Klinlein v. Baltimore, 118 
 Md. 576 (1912) ; Smith v. Commissioner of Boston, 215 Mass. 333 (1913) ; 
 In re Welch Mfg. Co., 201 Fed. 519 (1913) ; State v. Kan.ms City G. Co., 254 
 Mo. 515 (1914). In Washington, it is said that any person "has the same 
 right to sue out the writ as he has to commence a civil action to redress a 
 private wrong." State v. McQuade, 36 Wash. 579 (1905).
 
 FISIIKR V. CITY OF CHARLESTON 26 1 
 
 sustained, an order was made directing the rule to show cause to be 
 issued. It was provided in the order, that the rule should be served 
 by delivering- to the defendant a copy of the order, which recjuired 
 him to appear at a certain time and show cause against the issuing 
 of the writ of mandamus described, and on the return day the de- 
 fendant was heard, and any counter affidavits filed by him were con- 
 sidered. The affidavits in support of the motion should according to 
 this old practice contain a precise statement of the facts constituting 
 the relator's right to the writ, and the allegations were required to 
 be stated in this affidavit so positively that if false, the relator 
 could be successfully prosecuted for perjury. Such affidavits should 
 also show that the relator was entitled to the relief he asked; that 
 he had complied with all the necessary forms to constitute his right ; 
 and that he had applied to the defendant to do that which he asked, 
 and that he had refused or neglected to do it. If by the counter- 
 affidavit of the defendant it was perfectly apparent that the relator 
 was not entitled to the writ the rule was discharged ; but if the re- 
 lator's right to the writ after the receiving of the counter-affidavits 
 was doubtful, the rule was made absolute, in order that the right 
 might be formally tried, and an order was entered directing an 
 alternative writ, or mandamus nisi, to be issued. 
 
 In this writ it was absolutely necessary to set forth the facts, 
 which entitled the prosecutor to the relief prayed for. It was ad- 
 dressed to the person or persons, whose duty it was to perform the 
 act, and it commanded him or them to do the thing required, which 
 v^^as accurately specified, or show some cause why he or they should 
 not do it. To this writ the defendant was required to make a written 
 return either denying the facts stated in the v.'rit or setting forth 
 other facts sufficient to defeat the relator's claim. If the alternative 
 vv-rit or mandamus nisi was defective in form merely, the defendant 
 could move to quash, before he made his return ; but for such defect 
 lie could not move to quash after he made his return ; but for a defect 
 of substance the writ of mandamus nisi would be quashed at any 
 time, before a perem.ptory mandamus was awarded. If the return 
 of the defendant was adjudged as insufficient answer, or if he made 
 no return, a peremptory mandamus was av/arded commanding abso- 
 lutely the defendant to do the thing required; and if this writ was 
 disobeyed, an attachment issued against the defendant. If the return 
 was sufficient in law but false in fact, the relator could not traverse 
 it, but was forced to resort to his action against the defendant for a 
 false return. See Blackstone's Com. iii ; Moses on Mandamus, 202, 
 203 ; High's Ex. Rem., sec. 500, p. 360 ; Field on Corporations, sec. 
 499> P- 571 ; Commercial Bank of Albany v. Canal Commissioners, 
 10 Wend. 30, 31. 
 
 As then the case was at common law determined entirely upon 
 the alternative vv'rit of mandamus and the return thereto, the utmost 
 strictness v/as required in these. It has even been said, that in a 
 return to a mandamus nisi the same certainty was required as in 
 indictments or returns to writs of habeas corpus ; but it is question- 
 able, whether this was not carrying the rule too far; (see King v. 
 The Mayor, etc., of Lynn Regis, Dough. 177) though Lord Chief
 
 262 ACTIONS 
 
 Justice Holt in Rr.v v. . Ihinijilon, 12 Mod. 401, says: "That a return 
 to a maiulanius at oominon law rec[uires the utmost certainty the 
 law allows of." Hartol, Judge, says in Harxvood v. Marshall, 10 Md. 
 404: "Th.crc is no branch of the law, in which more technical pre- 
 cision and nice discrimination are found, than the rules which gov- 
 erned the constructions of returns to writs of mandamus at common 
 law." lie tiien cites from Tapping on Mandamus, 353, the princi- 
 ples, which at common law govern in such cases, and which, he 
 says, are sustained by the authorities he quotes. This citation is: 
 "The averments of the return must be certain. The certainty re- 
 ipiired b)' the common law is by some of the cases stated to be cer- 
 tainlv to every intent, and therefore greater certainty than is requi- 
 site to a plea. Other cases have decided, that tlie certainty or strict- 
 ness, which prevailed at common law, was the same that governed 
 estoppels, indictments or returns to w-rits of habeas corpus; and 
 as to til em it is laid down, that nothing is to be taken or construed 
 by intendment or inference, so that all material facts should be 
 positively and distinctly alleged." But in an older case in Maryland 
 it was held, that the common law required the same certainty in a 
 return to a mandamus as in declarations and pleadings. Sec Rroshis 
 v. Renter et ol., i Harr. & J. 551. 
 
 The ancient strictness and certainty required in the return of a 
 mandamus nisi was based in part on the fact that it could not be 
 traversed, but was treated by the court as true. But in 171 1, 9 Anne, 
 ch. 20, this rule was changed. By the second section of said act it 
 was enacted, "that when a return is made to a mandamus in certain 
 cases, it shall and may be lawful to and for tlie person or persons 
 suing or prosecuting such writ of mandamus to jilead to or trav- 
 erse all or any of the material facts contained within the said re- 
 turn; to which the person or persons making such return shall re- 
 ply, take issue or demur ; and such further ]n-oceedings and in such 
 manner shall be had therein for the determination thereof, as might 
 have been had, if the person or persons suing such writ had brought 
 his or their action on the case for a false return; and if any issue 
 shall be joined on such proceedings, the person or persons suing 
 such writ shall and may try the same in .such place, as an issue 
 joined in such action on the case should or might have been tried; 
 and in case a verdict shall be found for the person or ])ersons 
 suing such writ, or judgment given for him or them upon demurrer 
 or by nil dicit or for want of a replication or other [)leading, he or 
 they shall recover his or their damages and costs in such manner, 
 as he or they might have done in such action on the case as afore- 
 said, and a peremptory writ of mandamus shall be granted without 
 delay for him or them for whom judgment shall be given, as might 
 have been, if such return had been adjudged insufficient; and in 
 case judgment shall be given for the person or j)ersons making such 
 return, he or they shall recover his or their costs of suit.""" 
 
 "In some jurisdictions the statute of 9 Anne, ch. 20, has been regarded 
 either as part of the common hiw or as substantially adopted in the prac- 
 tice under the local laws. United States v. Boiittvell, 84 U. S. 604 (1873) ;
 
 FISHER V. CITY OF CHARLESTON 263 
 
 111 1843, (see 6 and 7 Vic, ch. 67), a further act was passed to 
 enable persons to sue out and prosecute writs of error in certain 
 cases upon proceedings on writs of mandamus. In 1854, (see 17 
 and 18 Vic, ch. 125), v/as passed the common-law procedure act, 
 which changed very much the proceedings in mandamus. These acts 
 are all to be found in the appendix to High's Extraordinary Legal 
 Remedies. 
 
 The effect of this statute of Anne was in cases falling within its 
 provisions to assimilate the proceedings in mandamus to those in 
 ordinary actions at law. The relator in his alternative writ of man- 
 damus, sometiir.es called a mandamus nisi, set forth his right or 
 cause of action in a formal manner, which corresponded to a decla- 
 ration in an ordinary action. The respondent then set up his defence 
 by way of return, corresponding to a plea in an ordinary action of 
 law. The relator then traversed this return or replied to it by way of 
 confession and avoidance, corresponding to a replication in an ordi- 
 nary suit, or he might demur, and to this again the respondent 
 might reply by traverse or by way of confession and avoidance; 
 and so on till an issue of law or fact was joined, which was tried, 
 as such an issue would be tried in an ordinary suit at law. This 
 statute made the pleadings in certain mandamus cases substantially 
 like those in ordinary suits at law ; and the subsequent legislation in 
 England rendered this likeness still more complete. 
 
 In some of the states of this country this statute of Anne has 
 been recognized by the courts as a part of their law, while in other 
 states from an early day it has been substantially re-enacted, while 
 in a few of the states for some time at least no such statute existed, 
 as in Pennsylvania.''^ We have always had such a statute in this 
 state. It is the same as the Virginia statute, and is ch. 109 of our 
 code. (See. p. 570.) It is in these words: 
 
 "ist. When a v.-rit of mandamus is issued, the return thereto 
 shall state plainly and concisely the matter of law or fact relied on 
 in opposition to the complainant. 
 
 New Haven & N. C. v. State, 44 Conn. 376 (1877) ; Fairbank v. Sheridan, 43 
 N. J. L. 82 (1881) ; Clement v. Graham, 78 Vt. 290 (1905)- In other jurisdic- 
 tions the statute was held not to be in force, Commonzvealth v. Canal Conv- 
 missioners. 2 P. & W. (Pa.) 517 (1831) ; Fttshugh v. Luster, If^ex. 391 
 (1849); Dane v. Derbv, 54 Maine 95 (1886) ; Chumasero v. Potts, 2 Mont. 242 
 (1875) ; Limt V. Davison, 104 Mass. 498 (1870) ; State v. Jefferson County, 
 II Kans. 66 (1873). The practice established by modern statutes and codes 
 has assimilated the proceedinps to those in an ordinary action. California 
 Code Civil Procedure, §§ 1084-1097; New York Code Civil Procedure, 
 §§ 2067-2090; General Code of Ohio (1910) § 12283; State v. Crites, 48 Ohio 
 St. 142 (1891); State V. Kellogg, 95 Wis. 672 (1897); People v. Best, 187 
 N. Y. I (1907). 
 
 •^- "' Mandamus in Pennsylvania is now regulated by the Act of June 8, 
 1893, P. L. 345, and its supplements. Covint omvealtJi v. Huttel, 4 Pa. Super. 
 Ct. 95 (1897) ; D avis v. Patterson 12 Pa. Super. Ct. 479 U900^ TDonglas^v. 
 McLean, 25 Pa. Super. Ct. (1904) ; Mc Clintock v. yoi'^m Republica ns, 210 
 Pa. 115 (1904); ^I'J^ler ^ PI,iIrldrlpl,la, ?^n \'a /[hS (Toi^). •Ihe~"writ of 
 mandamus at the common law and under the statute must be distinguished 
 from an order made by the court upon the treasurer of a municipality for the 
 paj^ment of a judgment against it, commonly called a mandamus. In re Sedgc - 
 le >^venue, 88 Pa. 509 ( 1879). "
 
 J()4 AlTlONS 
 
 "2>.I. 'l"ho (.•(Mnphtiiiaiit ma}' llifrcupon deimir to the return to 
 jtlead spcoiall}' thereto or both. 
 
 "3tl. The defendant may reply to, lake i ^sue on or demur to the 
 ])lcas of the eom])lainant. 
 
 "4th. If a verdict be found or a imlj^nicnt be rendered for the 
 ])crson suin.ij out a writ on demurrer or by nil (Heit or for want of a 
 rephcation or other pleading, he shall recover his costs and such 
 damages as the jury may assess, and final judgment thereupon shall 
 be awarded without delay, as if the return to the writ had been 
 judged insufficient. 
 
 "5th. If judgment be rendered for the defendant, he shall re- 
 cover his costs." 
 
 This is a re-enactment substantially of the statute of 9th Anne 
 with an extension of its provisions to all cases of mandamus, the 
 statute of 9th Anne being confined to certain cases only of man- 
 damus. 
 
 The practice in mandamus cases differs much in England and 
 in the different states in this country, it being largely regulated by 
 local rules, usages and statutes. Some of these diversities of prac- 
 tice are pointed out and commented on in Ex parte Garland, 42 Ala. 
 559. Without undertaking to point out or comment on these diversi- 
 ties of practice T will simply state, that the usual practice in this 
 state, and the most usual practice in this country, is to begin the 
 proceedings by presenting to the court an ai)plication in the form of 
 a petition setting forth in detail the grounds, upon which the peti- 
 tioner asks a writ or mandamus. This petition in this state is usually 
 ex parte, no notice that it will be filed being given to the defendants, 
 and it is always sui)ported by affidavit, when presented by a private 
 person. Goshorn et al. v. Supervisors of Ohio County, i W. Va. 
 312; Board of Supervisors of Mason County v. Minturn, 4 W. Va. 
 302; Shields & Preston v. Bennett, auditor, 8 W. Va. 76; Barnett v. 
 Meredith, Judge, 10 Gratt. 651 ; Sights v. Yarralls, 12 Gratt. 293. If 
 a prima facie case is presented by this i)etition warranting the relief 
 sought, the court frequently issues a rule, which is served on the 
 opposite party, requiring him to show cause, why a mandamus 
 should riot issue. Smith v. Dyer, i Call 563 ; Dew v. Judges of Sweet 
 Springs, 3 H. & ]\I. i ; Barnett v. Meredith, Judge, 10 Gratt. 652; 
 Harrison v. Emmerson and other Justices of Norfolk, 2 Leigh. 764; 
 Board of Supervisors of Mason County v. Minturn, 4 W. Va. 302; 
 The Ohio Vallcx Iron IJ'orks v. The fozvn of MoundsviUe, 11 W. 
 Va. 8. 
 
 But in this state the issuing of this rule is frequently dispensed 
 with ; and the most usual practice is to issue the alternative writ im- 
 mediately on the filing of a proper petition supported by affidavit. 
 See Bridges v. Shallcross, 6 W. Va. 662 ; Shields & Preston v. Ben- 
 nett, 8 W. Va. 72; Fisher v. The Mayor of Charleston, 17 W. Va. 
 62S. Where the court thinks proper to issue a rule, and it has been 
 served, if the defendant fails to answer it or files an insufficient 
 answer, the court either issues a i)eremptory writ of mandamus, 
 enlarges the rule or compels an answer, as may be proper in the 
 particular case. But if the answer denies the facts stated in the
 
 FISIIKR v. CITY OF CHARLESTON 265 
 
 petition or shows sufficient cause, why the rule should not issue, so 
 that it appears, that there is a dispute of fact between the parties, 
 an alternative writ of mandamus is ordered to be issued, in order 
 that by the return to such alternative writ of mandamus a formal 
 issue may be made up and tried. See Dew v. Judges of Sweet 
 Springs, 3 H. & M. i ; Douglas & Woodzvard v. Looniis, Judge, 5 
 W. Va. 544. This alternative writ of mandamus, whether issued 
 immediately on the filing of the petition or after the return of such 
 a rule, here as elsewhere stands in lieu of a declaration in an ordi- 
 nary suit. See The People v. The Supervisors of Westchester, 15 
 Barb. 612; Canal Trustees v. The People, 12 III. 254.''^ The facts, 
 however, alleged in this alternative writ, may be alleged by way of 
 recital ; but it being in the nature of a declaration as well as of a 
 writ, the sufficiency of these facts to entitle the plaintiff to the re- 
 dress he seeks is called in question by a motion to quash the alterna- 
 tive writ or by a demurrer to it, and any defect in the recitals or 
 allegations of this alternative writ can not be aided by the petition 
 or affidavit thereto, for though they be the foundation, on which 
 the writ was issued, they constitute no part of the pleadings in the 
 case. See Commercial Bank of Albeny v. Canal Commissioners, 10 
 Wend. 25; Johnson v. The Auditor of the State, 4 Ohio St. 493; 
 People V. Baker, 25 Barb. 105. If the petition does not state the 
 necessary facts to justify the issuing of an alternative writ or a rule, 
 neither ought to be issued, and if issued, on the return day this fatal 
 defect should be taken advantage of not by demurrer but by motion 
 to quash the alternative writ or to discharge the rule as improvi- 
 dently awarded. The petition and affidavit bear to the mandamus 
 nisi a relation. similar to that, which an affidavit bears to an attach- 
 ment. 
 
 When the alternative want of mandamus has been issued, if the 
 defendant does not do the act required, and the writ be not quashed 
 on motion or dismissed on demurrer, the defendants, to w^iom it is 
 addressed, and none others, must make a return thereto. This return 
 under our statute is in the nature of a plea in an ordinary action at 
 law, and it must be tested by the ordinary rules of pleading both as 
 to its form and substance. It must therefore be in the nature of a 
 traverse or a plea in confession and avoidance; and if insufficient 
 in law, it may be demurred to by the complainant, or he may reply 
 thereto; (see Commercial Bank of Albany v. Canal Commissioners 
 of the State of New York, 10 Wend. 20; The People v. Baker, 25 
 Barb. 105; The Commissioners ex rel. Middleton y. Tlie_C_gmmis- 
 
 •"* "The alternative writ corresponds in many particulars to a declaration 
 at common law, and in a proper case may be demurred to, or the return may 
 be demurred or pleaded to and an issue made by which the rights of the 
 parties may be determined and the decision of the court reviewed, if desired, 
 by writ of error." Sclinitdcr v. Transportation Co., 76 N. J. L. 171 (1908). 
 So also, Williams v. New Haven, 68 Conn. 263 (1896) ; People v. Super- 
 visors, 142 N. Y. 271 (1894) ; Welch v. State, 164 Ind. 104 (1904). In Illinois 
 the petition takes the place of the alternative writ and the plea or answer 
 takes the place of the return, People v. Hcmstrect, 156 111. 155 (1895). So 
 also, in Ohio v. Dalton, i Ohio C. C. 119 (1885) ; Chatters v. Coahona County, 
 73 Miss. 351 (1895).
 
 266 ACTION'S 
 
 sioiicrs of Allegheny County. .^7 Pa. St. 237; B'ujgsy. Johnson, 6 
 \\'all. 185) : and so the pleadings proceed as in an ordinary common- 
 law suit, till the parties are at issue in fact or law, which issues are 
 tried as in an ordinary action at law. 
 
 judpnent reversed and cause remanded willi instructions to 
 award a proper alternative writ of mandamus ajjainst tlie City of 
 Charleston.'''' 
 
 (c) Prohibition. 
 STATE z: WHITAKER. ^ 
 
 Supreme Court of North Carolina, 1894. 
 114 A^ Car. 818. 
 
 The defendants applied for a_^_writ of prohibition to issue to 
 Thomas Badger, mayor of the city oTXaTeigh, upon the groimd that 
 tlie city orrlinancc for the violation of which they were being tried 
 wasTnvalid and because a trial by jury had been refused them. 
 
 Clark, J- : The writ of i)rohibiLion existed at common law and 
 is also authorized by the constitutional i)rovision (Art. IV, sec. 8) 
 which gives the Supreme Court "power to issue any remedial writs 
 necessary to give it a general supervision and control over tlie pro- 
 ceedings of the inferior courts." In this state this writ can issue 
 onlv from the Supreme Court. Perry v. Shepherd, 78 N. Car. 83. 
 
 The writ of prohibition is the converse of mandamus. It pro- 
 hibits action, while mandamus compels action. It differs from ani 
 injunction, v/hich enjoins a i)arty to the action from doing the for- 
 bidden act, while prohibition is an extraordinary judicial writ issu- 
 ing to a court from another court having supervision and control of 
 its proceedings, to prevent it from proceeding further in a rnatter 
 pending before such lo\ver court. It is an original remedial writ and 
 is the remedy afforded by the common law against the encroach- 
 ment of jurisdiction by inferior courts and to keep them within the 
 limits prescribed by law. 19 A. & E. Encyc, 263,264; High, Ex- 
 traordinary Rem., sec. 762. 
 
 It is settled that this writ does not lie for grievances which may 
 
 •^'See also, Fitch v. McDiavmid, 26 Ark. 482 (1871) ; State v. Lrt.'t.f, 76 
 Mo. 370 (1882); Srdft V. Richardson, 7 Houst. (Del.) 338 (1886); State \ 
 YouH'j, 102 X. E. g6i (Ind. 1913). Where an officer or a court has a judicia 
 or quasi judicial discretion as to the performance of an act mandamus will 
 lie to compel the officer to act, but will not lie to control his discretion or to 
 compel its exercise in a particular manner. United States v. Lawrence, 3 
 Dall. (U. S.) 42 (1795); Chase v. Blackstone C. Co., 27 Mass. 244 (1830); 
 Doi Ullass v Cominonu'calth, 108 P a. 559_ (i885) ; People v. Commissioners, 
 149 X. Y. 2?rn ^/J^ ; f ' .vhitii irv: TTdughion, 98 Va. 499 (1900) ; United States 
 V. Hitchcock, 190 U. S. 316 (1903) ; iValker v. Superior Court, 139 Cal. 108 
 (■1903) ; Chat field Co. v. Reeves, 87 Conn. 63 (191.3) I People v. Craven, 210 
 N. Y. 443 (1914) ; IVest Jersey & S. R. Co. v. Public Utility Comm., 89 Atl. 
 1017 (X. J. 1914). Contra: State v. Clausen, 44 Wash. 437 (1906).
 
 STATE V. WIIITAKER 267 
 
 be redressed in the ordinary course of judicial proceedings by ap- 
 peal or by recordari or certiorari in lieu of an appeal. Nor is it a 
 writ of right, granted ex debito justitiae, like habeas corpus, but it is 
 to be granted or withheld according to the circumstances of each 
 particular case. Being a prerogative writ, it is to be used like all 
 such, v.ith great caution and forbearance to prevent usurpation, and 
 secure regularity, in judicial proceedings where none of the ordi- 
 nary remedies provided by law will give the desired relief, and dam- 
 age and wrong will ensue pending their application. High on Extra- 
 ordinary Remedies, sees. 765, 770. 
 
 In the present case the mayor's court has jurisdiction of the 
 persons of the defendants and of the subject-matter, which is 
 the alleged violation of a town ordinance. If the ordinance in ques- 
 tion is invalid that matter can be determined on appeal to the Supe- 
 rior Court, and by a further appeal (if desired) thence to this court. 
 This has been often done. There is no palpable usurpation of juris- 
 diction or abuse of its authorit}^, nor likelihood of injury to defend- 
 ants, which calls for the extraordinary process of this court by pro- 
 hibition to stop the action of the lower court. It is more orderly to 
 proceed in the regular way to have an alleged error of this kind 
 corrected on appeal. The writ might properly issue where the court! 
 belov,' has no jurisdiction of the subject-matter, as for instance, if al 
 justice of the peace should attempt to try a defendant for larceny,! 
 or decree foreclosure of a mortgage; but even in that case it would! 
 rest in the discretion of the Supreme Court whether the matter 
 should be left to correction by appeal or by treating such judgment 
 as a nullity. As to tlie denial of a jury trial by the mayor, it is 
 pointed out by Smith, C. J., in State v. Powell, 97 N. Car. 417, that 
 under the present Constitution (Art. i, sec. 13) the legislature is 
 authorized to vest the trial of petty misdemeanors in inferior courts 
 without a jury if the right of appeal is preserved. It was otherwise 
 under the former Constitution, under which State v. Moss, 47 N. 
 Car. 66 was decided. The guaranty of a trial by jury in the sixth 
 and seventh amendments to the Constitution of the United States 
 applies only to the federal courts, and is not a restriction on the 
 states, which may provide for the trial of criminal and civil cases 
 in their own courts, with or without jury, as authorized by the State 
 Constitution. Coole3^ Cons. Lim. (6th ed.), 30; Walker v. Samnnct, 
 92 U. S. 90; Mitnn v. Illinois, 94 U. S. 113. 
 
 There are instances, though infrequent, when this writ has been 
 invoked. It has been granted where, after conviction for felony, the 
 court has at a subsequent term granted a new trial upon the merits, 
 without any legal authority for so doing. Quimbo Appo. v. The 
 People, 20 N. Y. 531. It is also the appropriate remedy pending an 
 appeal from an inferior to a superior court, to prevent the former 
 from exceeding its jurisdiction by attempting to execute the judge- 
 ment appealed from ; or to prevent a circuit court exceeding its 
 j)0\vers by issuing an unauthorized writ of error and supersedeas to 
 a county court and interfering improperly with the jurisdiction of 
 the latter. Supervisors v. Gorrell, 20 Grat. 484. Also, prevent an 
 inferior court's interfering with or attempting to control the records
 
 J(>S AlTlOXS 
 
 ami seal of the superior court \>y injunction. T/ioiiuis v. Meade, 36 
 Mo. 27,2. It lies to prevent a probate court exercising jurisdiction 
 over the estate of a deceased ])erson wlicn it can not lawfully do so. 
 rniteii States v. Shank, 15 Minn. ,^()9. Or, where justices of the 
 ])eace are ])roceeding without authority of law to abate a supposed 
 nuisance, prohibition lies to stay their action. Zylstra v. Charleston, 
 1 Ray 38J. These are cited as illustrations, but in each case it 
 is in "the discretion of the Supreme Court wliethor tlie writ shall be 
 il^ranted. 
 
 Prohibition does not issue to restrain ministerial acts, but only 
 to restrain judicial action where the latter would be a usurpation 
 and can not be adequately remedied by an appeal. 19 A. & E. Encyc. 
 268, 269. It issues to and acts upon courts. ..as~aix-ii4ilildi2ILScts 
 upon i^arties , and likeaTiJniuiicYio^ 
 
 remedi es "caji^be h ad L^y the orcfmarj process of tlie C!)urts. When 
 ^nfCrtanieci~tKe usuaTcoiirs'e,' unless prior notice of the petition has 
 been given, is to issue a notice to the lower court to show cause 
 why the writ should not issue and to order a stay of proceedings in 
 the' meantime. 19 A. &E. Encyc., 280, 281. 
 
 In the present case if the defendants are convicted upon an in- 
 valid ordinance there is ample remedy by appeal. The Constitution 
 does not guarantee a jury trial in such case, since the defendants 
 have the right of appeal. If there is aught in the charter of the city 
 which grants the defendants a trial by jury, if demanded, the error 
 in the refusal could be corrected by a jury trial in the superior 
 court. There is no emergency which recjuires the court to issue the 
 writ prayed for. 
 
 Petition denied.'" 
 
 'Tor an account of prohibition at common law, see Ex parte Williaius, 
 4 Ark. 537 (1842). See also, Connecticut River R. R. v. County Commission- 
 ers, 127 Mass. 50 (1879) ; State v. Ward, 70 Minn. 58 (1897) -.DjlValts Pe}ir^ 
 Hon A2 \V. N. Ca. Pa ^_iiA (1898) ; Valentine v. Police Court, 141 Cal. 615 
 (i(;o4) ; People v. if'yatt, 186 N. Y. 383 (1906) ; Teham v. Municipal Court, 
 191 Mass. 92 (1906) ; Hindman v. Colvin, 46 Wash. 317 (1907) ; State v. Rey- 
 nolds, 209 Mo. 161 (1908) ; Dunbar v. Bonrland, 88 Ark. 153 (1908) ; Curtis 
 V. Cornish, 109 Maine 384 (1912); Central Ga. P. Co. v. Ham, 139 Ga. 569 
 (1913) ; McLean v. District Court, 24 Idaho 441 (1913) ; Hirsh v. Twyford, 
 40 Okla. 220 (1913); State v. McOuillin, 256 Mo. 693 (1914) ; Succe.';- 
 .<;ion of McDermott, 134 La. 348 (1914)- The imlawful act must be that of a 
 judicial or quasi judicial body. The writ does not lie against private individ- 
 uals. Southern R. Co. v. Birmingham S. & N. R. Co., 131 Ala. 663 (1901) ; 
 Moore v. Holt, 55 W. Va. 507 (1904); Kump v. McDonald, 64 W. Va. 323
 
 HILL V. NELSON 269 
 
 SECTION 4. VENUE OF ACTIONS. '^ 
 
 HILL V. NELSON. ,.^^ 
 
 Supreme Court of New Jersey, 1904. 
 70 N. J. L. 376. 
 
 On demurrer to plea. 
 
 Dixon, J. : The first count of the declaration alleges that the 
 plaintiff was possessed of a certain several fishery under the statutes 
 of Pennsylvania, situate in the Delaware river opposite to the east- 
 erly bank of his farm, in Bucks county, and that the defendants, 
 witli force and arms, broke and entered that fishery and deposited 
 large quantities of earth upon the land under the water of the river 
 within the bounds of his fishery, and thereby the fishery was ob- 
 structed and the plaintiff was deprived of its use. The second count 
 is in substance the same, except that it alleges possession by the 
 plaintiff of a "certain pool and fishery." For the wrong thus perpe- 
 trated the plaintiff claims damages. 
 
 To this declaration the defend^Liita_u!eadjhat the supposed causes 
 of action accrued tr, the plamtifF out of the jurisdiction of tliis court, 
 HI ilie C'linlx' 'if r,M.ck>, in llie stale 01' I 'enns\i\ania, and therefore 
 they pray judgment whether the court can or v/ill take further cog- 
 nizance of the action. Whereupon the plaintiff demurs. 
 
 Li the brief submitted on behalf of the plaintiff it is stated that 
 the only cjuestion is, "Is the action local or transitory?" in effect 
 conceding that if it be local the pfea is valid. 
 
 The flecision of the question does not seem doubtful. A several 
 ;i-;hcry is necessarily attached to land and belongs to the own^f 6f 
 the land or Ins grantees. 2 Bl. Com. 39. It is as immovable as the 
 land itself. Tlie same thing is true of "a pool and fishery." Since, 
 therefore, the property injured by the act of the defendants had a 
 certain and fixed location, so the wrong done was necessarily local. 
 The act charged, the depositing of earth on the land under the water 
 in which the plaintiff had his right of fishery, is not legally distin- 
 guishable, as to locality, from any other trespass upon the land. 
 According to all the authorities, actions for such injuries are local. 
 
 But the more important question, discussed in the oral argument 
 and really involved in the demurrer, is whether, the cause of action'\ 
 being local and having arisen outside of New Jersey, this court has\ 
 jurisdiction of a suit which seeks only damages for the tort. (^ 
 
 In reaching our conclusion on this question, we have not been 
 unmindful of the fact that an action might be brought over which 
 v.-e would undoubtedly have jurisdiction and which yet might re- 
 quire a decision of every point possible to be raised in this suit. For 
 example, an action upon a contract whereby the defendants had 
 
 '' See 3 Street's Foundations of I^epal Liability 90, 40 Cyc. 10, 22 Enc. 
 PI. & Pr. 773; I Chitty on Pleading ^279; Gould on Pleading (Wills ed.) 
 263; Stephen on Pleading (Andrews' ed.) 324.
 
 270 ACTIONS 
 
 ptisrocd ti) iiuloninifv the plaintill" for this injury in case he proved 
 jjiir.isolt entitled to the fishery. Nor do we overlook the i)ossibility 
 that, if we have no jurisdiction, the i)laintirf may be remediless, 
 since elsewhere no court may be able to reach the defendants or 
 their property. Nevertheless, we are obliged to decide the matter 
 according to the prescriptions of the common law, which in this 
 respect have not been changed by constitutional or legislative pro- 
 visions. 
 ^ On examining the subject we find an inveterate and imperative 
 / rule of the common law that if a local cause of action arises outside 
 V^f the realm, the law courts have no jurisdiction over it. 
 
 Originally the pleader was required to state truly the place where 
 each fact asserted by him occurred, and if issue was joined thereon 
 the fact was tried by a jury summoned from that neighborhood or 
 venue. Afterwards, wdien juries were no longer expected to decide 
 issues of fact upon their own knowledge, a fictitious venue was in 
 some actions permitted, and the pleader assigned to his facts, under 
 a videlicet, the place in which he desired the trial to be held. These 
 actions were then styled transitory. But this fiction was not allowed 
 when the cause of action was so related to a certain piece of land 
 that it must have arisen on or near that land. Actions for such 
 causes were still local and triable only in the vicinity in which the 
 land lay. One effect of this rule was that if the land was outside 
 of the limits of England the law courts of that country had no 
 jurisdiction. The truth of this statement is made evident by the 
 cases. 
 
 As early as 1667 the question came before the house of lords in 
 the remarkable controversy between Skinner and the East India 
 Company (6 St. Tr. 710), when Skinner complained to the house 
 that the company, among other wrongs, had unlawfully seized his 
 warehouses in the East Indies and that he could not obtain redress 
 in the ordinary tribunals. The opinions of the judges at West- 
 minster being called for, they all replied that for the seizure of his 
 realty he was not relievable in any ordinary court of law in England. 
 On that opinion the house attempted to establish an original civil 
 jurisdiction in itself and adjudged £5,000 to Skinner as damages, 
 but such vigorous protest and opposition were made by the house 
 of commons against this usurpation that finally, on the intervention 
 of the king, the lords abandoned their position and the records of 
 the proceedings in both houses were expunged. 
 
 In 1725 the question again arose at nisi prius before Chief Jus- 
 tice Eyre, in Shelling v. Fanner, i Str. 646, and he likewise ruled 
 that the king's bench could not try an action of trespass for the 
 seizure of a house in the East Indies, referring to a former decision 
 to the same effect in a local action for a cause arising in Barbadoes. 
 Fifty years afterv/ards, Lord Mansfield, in Alostyn v. Fabrigas, 
 Covv-p. 161,"^ mentioned two nisi prius trials before himself, in which 
 
 '* See Enplish and American notes to this case in Smith's Leading Cases, 
 and Gardiner v. Thomas, 14 Johns. (N. Y.) 134 (1817) ; Barrell v. Benjamin, 
 15 Mass. 354 (1819). The act of 21 James I, ch. 12, requiring actions of
 
 HILL V. NELSON 27I 
 
 the plaintififs had recovered damages for injuries to realty beyond 
 the sea within the dominions of the king, but he seems to have fol- 
 lowed an erroneous report of the ruling of Chief Justice Eyre, in 
 Shelling v. Farmer. When, a few years later, the question came be- 
 fore the king's bench, in Doulson v. Matthews, 4 T. R. 503, the nisi 
 prius cases before Lord Mansfield w^ere overruled. Lord Kenyon 
 saying that the contrary had been held in the common pleas, and the 
 decision being that an action for damages resulting from a trespass 
 to land in Canada could not be tried in England, and that the plain- 
 tiff in such an action was rightly nonsuited. 
 
 In 1875 the point v\as again decided in IVhitaker v. Forbes, L. R. 
 10 C. P. 583; I C. B. Div. 51, where it was held that an action of 
 debt for an annuity charged upon land in Australia, and for which 
 the defendant was responsible only because of his estate in the land, 
 was local and could not be maintained in England. 
 
 Very recently the question was again before the English courts, 
 in Conipanhia de Mocambique v. British South Africa Co., 2 Q. B. 
 358 (1892) ; App. Cas. 602 (1893), and it was decided by the house 
 of lords that, even since the judicature acts which abolished the 
 distinction between transitory and local suits with regard to venue, 
 the courts of England had no jurisdiction to entertain an action for 
 damages caused by a trespass on lands abroad. 
 
 The same view has been upheld in this country. Livingston v. 
 Jefferson, i Brock. 203 (before Chief Justice Marshall) ; Watts v. 
 Kenney, 6 Hill 82 ; Cragin v. Lovell, 88 N. Y. 258 ; Clark v. Scud- 
 der, 6 Grav 122, and many cases cited in i Sm. Lead. Cas. 961 and 
 22 Encyc. PI. & Pr. 776.^- 
 
 Although in New Jersey the question seems never to have been 
 decided, the distinction between transitory and local actions has 
 always been observed, and in Ackerson v. Erie Railroad Co., 2 
 Vroom 309, this court based its reasoning upon that distinction to 
 sustain jurisdiction over a transitory cause of action arising out of 
 the state, apparently assuming that if the cause had been local the 
 suit could not have been maintained. 
 
 Our conclusion is that we have no jurisdiction to try the merits 
 of this controversy. 
 
 The plaintiff urges that the plea is informal because it does not 
 show what court has jurisdiction. But this is not necessary when the 
 plea presents facts showing that the subject-matter is beyond the 
 
 case, trespass and false imprisonment against justices of the peace, majors, 
 constables, etc., to be brought in the county -where the cause of action arose, 
 was held not in force in several of the American states. Pcarce v. Atzvood, 
 13 Mass. 324 (1816) ; Campbell v. Thompson, 16 Maine 117 (1839) ; Gardne r 
 V. Kichl , 182 Pa. 194 (1897). But in many of the states statutes require suits 
 agamst public officers to be tried in the county where the cause of action 
 arose. New York Civil Code of Procedure, §983 ; Murphy v. Callan, 69 App. 
 Div. (N. Y.) 413 (1902); Layne v. Sharp, 32 Ky. L. 2,2> (1907). As to 
 municipal corporations, see Phillips v. Baltimore, no Md. 431 (1909). 
 
 " Where an act in one state causes damages in another, as between the 
 states the action is generally held transitory. Thayer v. Brooks, 17 Ohio 489, 
 49 Am. Dec. 474 (1848) ; Mannvillc Co. v. Worcester, 138 Mass. 89, 52 Am. 
 Rep. 261 (1884) ; Smith v. Southern Railroad, 136 Ky. 162 (1909).
 
 2/2 ACTIONS 
 
 p^cncral jurisilictiDii of the courts of the state; it was i"C(iuired only 
 when the denial of jurisdiction resulted from some special and ex- 
 clusive jurisdiction residins;- elsewhere within the realm. See Coni- 
 panh'ia de Mocaiiib'njiic w South .Ifrica Co., 2 (J. B. 358, 369 
 (189J). In circumstances like those present the question might be 
 raised by demurrer to the declaration if the necessary facts were 
 averred, or by jilca in bar or by motion to nonsuit, as may be per- 
 ceived on reference to the cases already cited. 
 The defendants are entitled to judgment."'* 
 
 r 
 
 J. E. BRADY r. R. B. BRADY. 
 
 SUPKKMl-: COL'RT OF NoRTTI CaROLIXA. I913. 
 161 .V. Car. 324. 
 
 Appeal from Webb, J., at Fall Term^ 1912, of Hertford. 
 
 Tins action is to recover $900 in the possession of the defendant 
 Bridge r. The plaintiff alleges7m substance, tliat lie 1s' fHe^oWner 
 qTatract-.oi land in Virginia; that the defendant R. B. Brady has 
 sold the timber on said land, and has caused the same to be cut and 
 reiiioved ; that $900 of the money paid for the timber is now in the 
 piirssession of the defendant Bridger, as attorney for the defejidant 
 Brad y, and that he has made demand for said money, which has 
 been refused. There is no allegation of an unlawful entry upon said 
 land, nor that the cutting and removal was wrongful, and the plain- 
 tiff does not ask to recover damages to the land, but that he recover 
 /said sum of S900. 
 
 When the action was called lor trial it was dismissed on the 
 motion of the defendant, ui)on the ground that the courts of this 
 istate did not have jurisdiction thereof, and the plaintiff excepted 
 and appealed. 
 
 Allen, J.: If the cause of action set out in the complaint is 
 local, the courts of Virginia alone have jurisdiction of it, _and if 
 trarisltory,~tIiF action may be maintained in this state. 
 
 Actions are transitory \\hen the transactions on which t hey a re 
 basecl v.v '.'c an\\\hcre, and are local when they could 
 
 iT(5T occi! Mine particular place. The distinction exists in 
 
 the nature of the subject of the injury, and not in the means used or 
 the place at v.hich the cause of action arises. Mason v. Warner, 31 
 
 '* Lkingston v. Jefferson, i Brock. (U. S.) 203 (1811) ; liachns v. Trustee.'! 
 of Illinois & Mich. Canal, ij 111. 534 (1856); Bates v. Ray, 102 Mass. 458 
 (1869) ; Cragin v. Lovell, 82 N. Y 258 (1882) ; l)it Brenil v. Pennsylvania R. 
 Co., 130 Ind. 137, 29 N. E. 909 (1891) ; Martin v. .South Norivalk Sav. Bank, 
 72 Conn. 698 (1899) ; Munger v. Cro-nee, 115 III. App. 189 (1904) ; Peyton v. 
 Des)noud, 129 Fed. i (1904) ; Mnnicihal Council of Sydney v. Bull, L. R. 
 (1909), I K. B. Div. 7; Gem City Acetylene Co. v. Cohlentz, 86 Ohio 199 
 (1912); Dhooghe v. Chicago, etc., R. Co., 91 Nebr. 613 (1912). Compare 
 firi.<:bane v. Penna. R. Co., 205 N. Y. 431 (1912) with Little v. Chicago, etc., 
 R. Co., 65 Minn. 48 (1896).
 
 BRADY 2'. BRADY 273 
 
 Mo. 510; McLeod v. R. R., 58 Vt. 732; Perry v. R. R., 153 N. C. 
 118. 
 
 The subject of the injury complained of by the plaintiff is the 
 refusal by the defendants to surrender to him money, the proceeds!) 
 of the sale of certain timber, which he alleges belonged to him, ands 
 there is nothing in the complaint which would entitle him to recover, / 
 here or elsewhere, damages for injury to the land. He does not al-/ 
 lege an unlawful and wrongful entry or other trespass upon the 
 land, nor that the land was injured, and contents himself with a 
 statement of a cause of action for money in the hands of the defend- 
 ants in this state. 
 
 We have said recently, in IVilliams v. Lumber Co., 154 N. C. 
 309 : "If one entered upon the land of another and cut trees thereon, 
 the owner of the land and of the trees had his election at common 
 law to sue in trover and conversion or in trespass de bonis asportatis 
 for the value of the trees, of in trespass quare clausiim fregit for 
 injury to the freehold, the land, or to the possession of it," and the 
 first tv.'O of these actions are transitory, and the last local. 
 
 If the owner elects to sue for the recovery of damages to the 
 land, he must allege a trespass, but can waive the trespass, consider 
 the trees as personality after severance from the land, and sue for 
 the wrongful conversion or wrongful carrying away of the trees, in 
 v.hich event he would recover their value. 
 
 The reason the action qnare clausum fregit is local is that the 
 injury to the land can only be done on the land, and the other actions 
 are transitory because the trees, after severance, may be carried 
 away and converted elsewhere. 
 
 The question has arisen in other jurisdictions and has been de- 
 cided in accordance with these views. 
 
 In McGonigle v. Atchison, 33 Kans. 726, the plaintiff sued in the 
 courts of Kansas to recover damages for the removal of sand from 
 land in Missouri, and the court, discussing the right to maintain! 
 the action, said: "If the facts show a cause of action in the nature \ 
 of trespass de bonis asportatis, or trover, then the action is certainly I 
 transitory; but if they show only a cause of action in the nature of \ 
 trespass quare clausum fregit, then the action is admittedly local J 
 * * * He (the plaintiff) seems to v/aive all the wrongs and in- 
 juries done with reference to his real estate and to his possession 
 thereof, provided the digging and removal of the sand was any in- 
 jury to either, and sues only for the value of the sand which was 
 converted. We think it is true, as is claimed by the defendant, that 
 the petition states facts sufficient to constitute a cause of action in 
 the nature of trespass quare clausum fregit; but it also states facts 
 sufficient to constitute a cause of action in the nature of trespass 
 de bonis asportatis, and of trover; and we think the plaintiff may 
 recover upon either of these latter causes of action, for they are 
 unquestionably transitory. * * * When the sand was severed 
 from the real estate, it became personal property, but the title to 
 the same was not changed or transferred. It still remained in the 
 plaintiff. He still owned the sand, and had the right to follow it 
 18 — Civ. Proc.
 
 2y.\ ACT KINS 
 
 aiul reclaim it. inti) wliatcvcM- jurisdiction it mio^lit be taken. He 
 could recover it in an action of replevin (Richardson v. York, 14 
 Me. J16: Harlan_y^arhw, 15 Pa. St. 507; Ilallcck v. Mixer, 16 
 Cal. 574) ; or he could maTntaln an action in the nature of trespass 
 dc bonis osportatis, for damag^es for its unlawful removal {IVadleigh 
 V. Janrrin. 41 N. H. 503, 520; Bulkey v. Dolbearc, 7 Conn. 232) ; 
 or he could maintain an action in the nature of trover, for damages 
 for its conversion, if it were in fact converted {Tyson v. McGuineas, 
 2$ Wis. 656; ]]' hidden v. Seelye, 40 Me. 247, 255, 256; Riley v. 
 Boston If. P. Co., 65 Mass. 11 ; Nelson v. Burt, 15 Mass. 204; For- 
 syj^h y,JlljdU,.4lIij^i- 291; Wright w Guicr, 9 Watts 172; Mooers 
 v. U'ait, 3 Wend. 104) ; or he could maintain an action in the nature 
 of assumpsit for damages for money had and received, if the tres- 
 l)asser sold the property and received money therefor (Pozvell v. 
 Rees, 7 Ad. & L. 426; JJliidden v. Seelye, 40 Me. 255; Halleck v. 
 Mixer, 16 Cal. 574.)" 
 
 In Tyson v. McGuineas. 25 Wis. 658, the court said of a cause 
 of action to recover damages in the courts of Wisconsin for the 
 cutting of trees on lands in Michigan : "The cause of action stated 
 in the com]-)laint is for appropriating and converting by the defend- 
 ants, to their own use, three million feet of pine timber and saw- 
 logs, the property of the plaintiff. To sustain this cause of action, 
 various witnesses were sworn upon the part of the plaintiffs, who 
 gave evidence tending to show that these logs were cut upon lands 
 belonging to them in Michigan. But the cause of action relied on is 
 manifestly not trespass to the realty. It is not claimed that there can 
 be any recovery for damages to the real estate in this action. But 
 it is said, in answer to the objection that tb.e action is local, that as 
 soon as the trees and timber were severed from the realty, they be- 
 came personal property, and that trover will lie against any one 
 removing and converting them. The authorities cited by the coun- 
 sel for the plaintiffs certainly establish the principle that when the 
 trees on the plaintiffs' land were severed from the freehold and car- 
 ried away, they became personal property, and that an action of tro- 
 ver might be maintained for their value. \V hidden v. Seelye, 40 
 Me. 247; Moody v. Uliitney, 34 Me. 563; Pierrepont v. Barnard, 5 
 Barb. 364; Sampson v. Hammond, 4 Cal. 184, and cases there cited. 
 It must be admitted that trover is a transitory action, and may be 
 maintained in this state for a conversion of personal property in an- 
 other state. W hidden v. Seelye, supra; Glen v. Hodges, 9 Johns. 
 66; I Chitty PI., 269; Gould, PL, ch. 3." 
 
 In W'hidden v. Seelye, 40 Me. 255, the plaintiff sued in the courts 
 of Maine to recover damages for cutting and removing timber from 
 lands in New Brunswick, and the court said: "The trees on the 
 plaintiff's land, when severed from the freehold and carried away, 
 [jecame personal property, and his title thereto was not divested by 
 the wrongful acts of the defendant. * * * When there has been 
 a severance of what belongs to the freehold, and an asportation, the 
 action of trover may be maintained. 3 Stephens N. P., 2665. The 
 title to the property severed remains unchanged and the owner may 
 regard it as personal property and maintain replevin. Richardson
 
 STATE EX REL. V. COURT ET AL. 275 
 
 V. ]^ork, 14 Me. 216. So, the tort being waived, if the property 
 severed has been sold, the action of assumpsit may be maintained. 
 * * * The jury have found that the plaintiff was in possession 
 of the mortgaged premises and that tlie defendant cut thereon the 
 logs in controversy. 
 
 The logs having been severed from the freehold, and after such 
 severance being personal property, and having been carried away 
 and converted by the defendant to his own use, trover is the fitting 
 and appropriate form of action in which to recover the damages 
 resulting from their conversion. It is a transitory action and may 
 be maintained in this state for a conversion of personal property in 
 a foreign jurisdiction." 
 
 It thus appears that the plaintiff could maintain this action under 
 the forms of action at common law, and if so, his right to do so can 
 not be doubted under a system, like ours, which has abolished forms 
 of action, and, looking only to the substance, requires a simple, con- 
 cise statement of the facts, and affords the party relief to which he 
 is entitled upon the facts. 
 
 Pleadings are now construed liberally, with a view to substantial 
 justice between the parties, and if it can be seen from their general 
 scope that a party has a cause of action, although not stated with 
 technical accuracy, the pleading will be sustained. Stokes v. Taylor, 
 104 N. Car. 395; Blackinore v. Winders, 144 N. Car. 215; Brewer 
 V. Wynne, 154 N. Car. 471. 
 
 The cases of Cooperage Co. v. Lumber Co., 151 N. Car. 455, and 
 Perry v. R. R., 153 N. Car. 117, are not in conflict with this position, 
 because in each the cause of action was to recover damages for in- 
 jury to the land. 
 
 Being of opinion, therefore, that the cause of action stated in the 
 complaint is to recover the value of the trees and is transitory, we 
 hold that it can be maintained in this state. '^^ 
 
 Reversed. 
 
 STATE EX REL. MACKEY v. DISTRICT COURT ET AL. 
 
 Supreme Court of Montana, 1910. 
 
 40 Mont. 359. 
 
 Original application for prohibition, by the state on the relation 
 of William T. Mackey, against the district court of the fifth judicial 
 district to forbid further proceedings in the case of Lillie E. Lenicke 
 V. G. F. McConnell, A. B. Widney and U\ T. Mackey. The suit was 
 on promissory notes executed at Portland, Oregon, and payable in 
 
 "Accord: Bradlcy-Watkin.'^ Co. v. Kalamazoo Judge, 144 Mich. 142, 107 
 N. W. 875 (1906). Compare Walker v. Bejir y. 7 P a. C. C. 258 (1889). 
 
 In American Union Tel. Co. v. Micfdleton, 80 N. Y. 408 (1880), the de- 
 fendant cut down telegrapli poles and carried them to the ditches and side 
 fences of the road where he left them. Held an action would not lie outside 
 of the state where the cause of action arose.
 
 2-6 ACTIONS 
 
 tlKit_city. Il ai)j>earc(l that the plaintilT Lenickc resided at Seattle, 
 W'ashinjj^ton. and, of the det'eiuhuits, McCotuiell resided at Seattle 
 and W'idncy ami Mackey at I'ortland, Orejjon."" 
 
 Smith, |.: It is contended in the reply brief of the relator that 
 the district court has no jurisdiction of tlie subject-matter of the 
 f cause, for tlie reason that the contracts were in terms to be per- 
 formed in the state of Oregon, cou])led with the fact that the de- 
 fendants are all nonresidents of Montana. Our statute (Revised 
 Codes, sec. 6504) ex]>ressly provides that, if none of the defendants 
 reside in tjus state, an action may be tried in any county which the 
 planitTlT may designate in his complaint. As to what are styled local 
 ScTions^— sucli, for example, as those relating to interests in lands — 
 usually the venue or place of trial is the district or the county where 
 the subject-matter lies. But in general, transitory actions may be 
 tried wherever personal service can be made on the defendant. As 
 to the general jurisdiction of the courts of a state, this is coexten- 
 sive with its soxereignty, which is limited only by the territory of 
 the state and attaches to all the property and persons within the lim- 
 its thereof. (W'ells on Jurisdiction of Courts, sees. 112, 113.) 
 
 The Supreme Court of North Carolina in Miller v. Black, 47 
 N. Car. 341, said: "The case presents simply the question whether 
 one citizen of the United States can sustain an action against a citi- 
 zen of another in a state where neither lives. * * * To many 
 purposes the citizens of one state are citizens of every state in the 
 Union. They are not aliens, one to the other. They can purchase 
 and hold, and transmit by inheritance, real estate of every kind in 
 each state. It would be strange indeed if a citizen of Georgia, meet- 
 ing his debtor, a citizen of Massachusetts, in the state of New York, 
 should not have a right to demand what was due him, nor be able to 
 enforce his demand by resort to the courts of that state. * * * 
 Ahist a citizen of California to whom one, a citizen of Maine, owes 
 a debt, * * * <r{) to Maine, and bring his suit there, or wait 
 till he catches him in California? We hold not, but that the courts 
 of every state in the Union, where there is no statutory provision 
 to the contrary, are open to him to seek redress." The same court, 
 in Wolters v. Breeder, 48 N. Car. 64, said: "We think it is settled 
 that a citizen of South Carolina may sue another citizen of that state 
 in the courts of our state upon a personal cause of action originat- 
 ing in South Carolina." 
 
 In the case of Johnston v. Insurance Co., 132 Mass. 432, the 
 Supreme Judicial Court, through Mr. Justice Endicott, said: "It 
 has been decided in this commonwealth that one foreigner may sue 
 another in our courts upon a simple contract debt made without our 
 jurisdiction ; if the defendant is found here and process can be legally 
 served upon him." In the case of tlall v. Williams, 6 Pick (Mass.) 
 232, 17 Am. Dec. 356, it was held that, if a citizen of one state was 
 in another state and served with process there, he was bound to 
 
 '"The statement of facts is from the opinion of the ccnirt, a part only 
 of which is printed. It was held that the court had acquired jurisdiction over 
 the persons of the defendants hy virtue of a general appearance by counsel, 
 the discussion of that point is omitted.
 
 KENWOOD V. CIIEESEMAN 277 
 
 appear and make his defense, or submit to the consequences. The 
 Supreme Court of Iowa, in Darrah v. Watson, 36 Iowa 116, said: 
 "Is it true that the courts of our state can not acquire jurisdiction of 
 the person of a citizen and resident of a sister state by the service 
 of original process upon such citizen within the jurisdiction of the 
 former state? We think it is not." Again, the Supreme Judicial 
 Court of Massachusetts in Barrell v. Benjamin, 15 Mass. 354, said: 
 "Personal contracts are said to have no situs or locality, but follow 
 the person of the debtor, wdierever he may go ; and there seems to 
 be no good reason why courts of any country may not lend their aid 
 to enforce such contracts." And it was therefore held that one for- 
 eigner might sue another who was transiently within the jurisdic- 
 tion of the courts of the state upon a contract made between them 
 in a foreign country. (See also, Gardner v. Thomas, 14 Johns. 
 (N. Y.) 134, 7 Am. Dec. 445; Hawes on Jurisdiction of Courts, 
 sec. 16; Lisenbee v. Holt, i Sneed (33 Tenn.), 42; Szvan v. Smith, 
 26 Iowa, 87.) In the case of Peabody v. Hamilton, 106 Mass. 217, 
 it was said: "That both parties are foreigners is no ground for 
 dismissing the writ. It is not necessary that a foreign plaintiff 
 should be personally within the jurisdiction in order to institute an 
 action. * * * Personal actions of a transitory nature may be 
 maintained in any jurisdiction within which the defendant is found, 
 so that process is legally served upon him. This we understand to 
 be tlie general rule of the common law." In Dewitt v. Buchanan, 54 
 Barb. (N. Y.) 31, it was held: "Actions for injuries to the person 
 are transitory and follow the person; and therefore, so far as the 
 nature of the action is concerned, one foreigner may sue another 
 foreigner in our courts for a tort committed in another country, the 
 same as on a contract m.ade in another country." 
 
 In our judgment there can be no question that the district court 
 of JefTerson County had jurisdiction of the subject-matter of the \ 
 action, and, it having acquired jurisdiction over the persons of the 
 defendants by their voluntary general appearance, it follows that 
 the proceedings in this court should be dismissed; and it is so 
 ordered. ^^ 
 
 Dismissed. 
 
 KENWOOD z: CHEESEMAN. 
 
 Supr eme Court of Pennsylvania, 181 7 . 
 
 3 Serg. & R. (Pa.) 500. 
 
 Cheesem an, the plaintiff below, brought an action of assumpsit 
 against Kenwood in the"'Court of Common Pleas of Philadelphia 
 County""f6r'the use and' occupation of the plaintiff's land in the 
 
 ''^Roberts v. Knight, 7 Allen (Mass.) 449 (1863) ; Educational Society v. 
 Varney, 54 N. H. 376 (1874) ; Henderson v. Perkins, 94 Ky. 207, 14 Ky. L. 
 782, 21 S. W. 1035 (1893); Kun selman v. S tine, 192 Pa. 462, 43 Atl. 948 
 (1899).
 
 J~8 MTIONS 
 
 State of Now Jersey. It appeared that Ihc defendant went on the 
 TaiiTt uTulcr an ajjreenient to purehase, hut a dispute havinj]^ occurred 
 anil the purchase not having: been conii)leted, the vendor brought this 
 action, (^n error by the defendant below it was urj:;ed that the action 
 was locab'"* 
 
 'I'li.r.ii NfAN. C J.: The last exception is, to the jurisihction of 
 the court of common pleas. The land is in New Jersey, and there- 
 fore, the defendant supposes, an action for the rent, can be main- 
 tained nowhere out of New Jersey. Were this action, in its nature 
 local, the law would be with the defendant. I>ut the action is transi- 
 tory, and therefore not confined to New Jersey. The action o f 
 assumpsit is founded on X^riyity ofcontract, not jpri vity pf^ esiate. 
 This was (lee icled in tlfe case of The Corporation of New ForFv. 
 PatK'son, 2 Johns. Cas. 335. With regard to actions for the recovery 
 of rent, I take the law to stand thus : Where the action is brought 
 by the lessor against the lessee, being founded on the mere privity of 
 contract, it is transitory, and may be brought out of the county, or 
 state, in which the land lies. But if the lessor assigns the reversion, 
 and the action is brought by the assignee of the reversion, against 
 the lessee, there is a distinction, founded on the form of the action 
 which may be brought. The assignee may, in such case, maintain an 
 action of debt at common lav,% which being founded solely on privity 
 of estate (for the privity of contract is destroyed by the assign- 
 ment of the reversion), is local. Or, he may have an action of cove- 
 nant by virtue of the statute 32 Hen. 8, ch. 34, which transfers the 
 privity of contract from the assignor to the assignee; and this 
 action not being founded on privity of estate, but of contract, is 
 transitory, and may be brought anywhere. This distinction is taken, 
 in the case of Thursby v. Plant, i Saund. 237, which is cited by the 
 court in Tlirale v. Cormvall, i Wils. 165, v.ith this remark, "that it 
 had always been held for good law." We may take the rule then 
 to be, that where the action is founded on i)rivity of estate, it is local, 
 where on privity of contract, it is transitory. T have laid down this 
 rule, when the action is brought by the lessor, or the assignee of the 
 reversion, against the lessee. It is unnecessary to speak now of 
 actions brought against the assignee of the lessee. In i Chitty on 
 Pleadings, 274, 275, the cases on this subject are collected, and the 
 result briefly and truly given. 
 
 I am of opinion, on the whole, that the [)resent action was well 
 brought, and well supported by the evidence. The judgment should, 
 therefore, be affirmed. 
 
 Duncan. J. : Assumpsit can not be considered as a local action. 
 It is founded on the contract express or implied, between the i)arties. 
 No possible case could ever arise, in which the action would be 
 local. But all actions of debt or covenant, between the lessor and 
 lessee, the action being founded on privity of contract, are transi- 
 tory, whether the lands be abroad, or in the county in which the 
 action is brought, i Chitt. Plead. 274. The rule, as I apprehend it, 
 
 "Only so much of the opinion of the judges as relates to tlie question of 
 venue is included.
 
 THE CHANCELLOR V. MORRIS 279 
 
 is: where the action is founded on privity of estate, it is local; 
 where on privity of contract, transitory. Debt for rent by the 
 assignee, is local. But covenant being founded on privity of con- 
 tract, is transitory.'^^ At common law, covenant did not lie for the 
 assignee of the reversion, but is given by stat. 32 Hen. 8, ch. 34. 
 Thrale v. Cornzuall, 1 Wils. 165, and so is the distinction, i Saund. 
 237. It can be no objection to the action, that it concerns tlie realty, 
 and, therefore, only can be tried in the county in which the land lies. 
 This is not the law of contracts. For where you proceed against the 
 party for damages, for the nonperformance of such contract, you 
 may bring the action wherever the party is to be found. It follows 
 the person, and in Penn v. Baltimore, a specific execution of articles 
 respecting lands lying in America, was decreed by the Court of 
 Chancery of England. For where the title is incidental, the court 
 possessing jurisdiction of the contract, which is in its nature transi- 
 tory, may even inquire into the very title, let the lands lie where they 
 may. Besides, in this case, the defendant would not be allowed to 
 qtiestion the plaintiff's title to the land. 
 
 Gibson, J., was absent. 
 
 Judgment affirmed.^" 
 
 THE CHANCELLOR OF THE STATE OF NEW JERSEY 
 V. BENJAMIN P. MORRIS. 
 
 Supreme Court of New Jersey, 191 i. 
 82 A-. /. L. 14. 
 
 Garrison, J. : To the declaration filed in the name of the chan- 
 cellor in an action on a receiver's bond the defendant demurred and 
 also moved to strike out the assignments of breach. Without passing 
 upon the propriety of this joinder, we have, since no objection was 
 interposed by the plaintiff, considered die several grounds urged 
 against the declaration with the result that judgment is given for the 
 plaintiff on the demurrer and the defendant takes nothing by his 
 motion. 
 
 " Covenant founded on privitj- of contract is transitory, but when founded 
 on privity of estate is local. Licitoiv v. Ellis, 6 Mass. 331 (1810) ; Bracket v. 
 Alvord, 5 Cow. (N. Y.) 18 (1825) ; Whitakcr v. Forbes, L. R. 1875) 10 C. P. 
 583; Tillotson V. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St. 95 (1887) ; Cole- 
 man V. Lucksingcr, 224 Mo. i (1909) ; Burt Lumber Co. v. Bailey, 175 Fed. 
 131 (1909). 
 
 '"Bulwer's Case, 7 Co. S7 (1584); ^Pey v. Yally, 6 Mod. 194 (1704); 
 Thiirsby v. Plant, i Saund. 237 (1669); Roche v. Marvin, 92 N. Y. 398 
 (1883) ; State v. Pist. Court, 94 Minn. 370, 102 N. W. 869 (1905) ; Clement v. 
 Stanger, 75 N. J. L. 287 (1907) ; Shcppard v. Cflcnr D'Alcne Lumber Co., 62 
 Wash. 12 (1911). 
 
 Courts of equity act in personam. Peun v. Lord Baltimore, i Ves. Sr. 444 
 (1750) ; Massie v. I'l'atts, 6 Cranch (U. S.) 148, 3 L- ed. 181 (1810) i Schmaltc 
 V. York Mfg. Co.. 204 P a. i, 53 Atl. 522, 59 L. R. A. 907, 93 ArrT Sr. 7S2 
 (1902).
 
 J^O ACTION'S 
 
 The defenclnnt also niovcd that the venue, which was laid in At- 
 lantic County, be chanj^ed to Monmouth County where the defend- 
 ant resides. Ihe venue as laid is sought to be justified upon the 
 ground that the receiver's creditors in whose interest the action is 
 brought are residents of Atlantic County. Such creditors are, how- 
 ever, not parties to the action, hence the place of their residence was 
 not to be considered in laying the venue, which under the two 
 hundred and second section of the i^ractice act,^^ might be either 
 (i) the county in which the plaintiff resides, or (2) in which the 
 defendant resides, or (3) in which the cause of action arose, or 
 (4) in which process was served on a nonresident defendant. 
 
 In the present case the venue should have been laid in the 
 county in which the defendant resides since none of the odier con- 
 tingencies existed. Neither the residence of the chancellor as an 
 individual nor the state capital is within the meaning of the statute, 
 moreover no one has moved to have tlie place of trial in either Mor- 
 ris or ^Mercer County. The cause of action can not be said to have 
 arisen in any particular covmty; and the defendant is not a non- 
 resident. There being therefore but one place where the v^enue could 
 properly be laid under the statute, there was no right of choice in 
 the plaintiff and no room for the discretion of the court under the 
 two hundred and second section. Assuming that the convenience of 
 the persons for whom the action is brought will be considered under 
 the two hundred and third section as if they were plaintiffs, the con- 
 venience of the defendant is equally entitled to consideration ; and 
 where the conveniences off'set each other, the statutory venue should 
 prevail. The venue must be changed to Psionmouth County, not for 
 the convenience of the defendant, but because there was no author- 
 ity to lay it elsewhere, and no sufficient reason has been shown for 
 a change of the venue laid in conformity with the statute. ®- 
 
 "■3 Comp. Stat. N. J. (1910) 41 13. 
 
 " In England the rules of the Supreme Court provide, order 36, rule i, 
 "There shall be no local venue for the trial of any action, except where other- 
 wise provided by statute, but in every action in every division the place of 
 trial shall be fixed by the court or a judge." The place of trial is ordinarily 
 fixed by the master under the summons for directions. The place is fixed 
 according to the balance of convenience, having regard to all the circum- 
 stances. Jenkins V. Biisliby, L. R. (1891) i, ch. 484. It is within the discretion 
 of the judge to change the venue. Thorogood v. Newman, 23 Times Rep. 
 97 (1906). 
 
 In the United States the rules as to local venue are to a large extent 
 statutory. Some states adhere to the common law, but in the great majority 
 the subject is fully covered by statute. For example, see New York Code 
 Civ. Pro. §§ 982 to 990; California Code Civ. Proc. §§ 392 to 400; i Burns' 
 Ann. Stat. Ind. (1914) §§ 309 to 311. In the various statutes the common- 
 law rules are followed approximately in actions relating to land. In transi- 
 tor>- actions proper the general policy is that suit shall be brought in the 
 county where the plaintiff or defendant resides. 40 Cyc. 94 and cases there 
 cited. Wood v. Ins. Co., 13 Conn. 202 (1839) ; Talmadge v. Third Nat. Bank, 
 91 X. Y. 531 (1883) ; Archibald v. Miss. R. Co., 66 Miss. 424 (1889) ; Jacob- 
 son V. Hosmer, 76 Mich. 234, 42 N. W. mo (1889) ; Hunt v. IDean, 91 Minn. 
 96, 97 N. W. 574 (1903) ; Interstate Cooperage Co. v. Eureka Lumber Co., 151 
 N. Car. 455 (1909); Hislop v. Taaffe, 141 App. Div. (N. Y.) 40 (1910); 
 Danser v. Dorr, 78 S. E. 367 (\\^ Va. 1913) ; Scott v. Miller L. Co., 122 Minn.
 
 WEST V. RATLEDGE 28 1 
 
 SECTION 5. COMMENCEMENT OF ACTIONS, 
 (a) Process. 
 
 WEST, qui tarn, v. RATLEDGE. 
 
 Supreme Court of North Carolina, 1833. 
 
 4 Devereux's Law (N. Car.) 31.*' 
 
 Daniel, J. : In England, when a person is about to commence a 
 •suit, the usual course of proceeding is in the first place, to execute 
 a warrant to an attorney of the court to have the writ issued, and 
 the pleadings in the cause made up. The attorney then gives instruc- 
 tions for the original ; these instructions are contained in a paper 
 called the praecipe, in which he sets forth the cause of action. 
 Formerly, the practice was to take the warrant and the praecipe to 
 the chancery, where the original writ was caused to be made out by 
 the Master of the Rolls ; which original recited the action as stated 
 in the praecipe. The original is a mandatory letter in parchment 
 from the King, tested in his name, and sealed with the great seal. 
 It is directed to the sherifl^ or other returning officer of the county 
 v/here the plaintiff intends to lay the venue, and is made returnable 
 to the court either of the King's Bench or Common Pleas, at West- 
 minster.^* If the sheriff return on the original non est inventus, the 
 original is then left on file in the court, and a judicial writ or process 
 issues, called a special capias ad respondendum, which is grounded 
 upon the original. If the sheriff return on the capias, non est in- 
 ventus, the plaintiff" then may issue an alias, and a pluries, and so on 
 into outlawry, to compel an appearance by the defendant. When the 
 defendant appears in court in consequence of the service of the 
 original, or an arrest on any process which issues upon it, the plain- 
 tiff' then files his declaration, and serves a copy on the defendant, 
 who defends either by demurrer or plea. If he pleads to tlie action, 
 
 377 (1913). As in the principal case many statutes provide that nonresidents 
 may be sued where found or served. Murpliy v. IVinter, 18 Ga. 690 (1855) ; 
 Hawley v. State, 69 Ind. 98 (1879) ; Baisley v. Baislcy, 113 Mo. 544, 21 S. W. 
 29, 35 Am. St. 726 (1892) ; Stcen v. Swadley, 126 Ala. 616, 28 So. 620 (1899) ; 
 Smith V. Provident Sav. L. A. Soc, 159 Mich. 167 (1909). 
 
 The Nev/ York Code Civ. Pro., § 987, provides : "The court may, by 
 order, change the place of trial in either of the following cases: (i) Where 
 the county designated for that purpose in the complaint is not the proper 
 county. (2) Where there is reason to believe that an impartial trial can not 
 he had in the proper county. (3) Where the convenience of witnesses, and 
 the ends of justice will be promoted by the change." Similar statutes are in 
 force in most states. See Carpenter v. Central Vcr>!iont R. Co., 84 Vt. 538 
 (1911) ; Murray Cure Inst. Co. v. Ward, 108 Minn. 527 (1909); State v. 
 District Court, 43 Mont. 571 (1911) ; Hemenway v. Fitzgerald, 159 App. Div. 
 (N. Y.) 748 (1913) ; Taber v. Eyler, 162 S. W. 490 (Tex. 1913) ; Willoughhy 
 v. Buffalo, etc.,J <^ Co., 203 Pa. 243 (1902). 
 
 " E5c"tract from the opinion of the court. 
 
 "^^ The day for the defendant's appearance is generally the return day of 
 the writ, i Tidd's Practice 106; Hunsaker v. Coffin, 2 Ore. 107 (1864).
 
 28 J ACTKINS 
 
 then the wlmlc of the pleadings to tlio makiiij^ up of the issue are 
 coinploteil in the Superior Court at Westniinster. A nisi prius record 
 is tlicn made out and transmitted to the court of nisi prius, or the 
 assizes of the county wliere the \enue is laid, that the issues may be 
 there tried by a jmy. When a trial takes place, and a verdict is 
 rendered, it is entereil on the nisi i)rius roll, or some paper attached 
 to it which is called the postea, and delivered to the party in whose 
 favor the verdict is rendered, who returns it into the Superior Court, 
 at Westminster, where the record belongs ; and on notice being given 
 to the adverse party, a motion is then made for judgment; which, if 
 no cause is shown to the contrary, is rendered by the court upon 
 which issues the execution. 
 
 In modern times the practice of commencing suit by original pur- 
 chased out of chancery, has been tacitly waived by the profession. 
 The practice is now, for the attorney to leave the praeci])e and a 
 memorandum of his warrant at the filazer's office, and the filazer 
 thereupon issues a capias ad respondendum, in the first instance, 
 keeping the praecipe as instructions for the original, if it afterwards 
 becomes necessary, by a writ of error being brought after a judg- 
 ment by default, on demurrer, or on plea of mil tiel record; for 
 the want of an original is aided after verdict, by stat. i8, Eliz. ch. 14. 
 If a writ of error should be brought, for the want of an original, 
 in any of those cases where the defect, is not cured by the statute 
 of Elizabeth, the plaintiff may, by a i)etition to the Master of the 
 Rolls, obtain an original and move the court where the record is, 
 to amend by adding the original, which is always granted. So that 
 the record is comjilete, when in obedience to the writ of certiorari, it 
 is transmitted into the court of errors. The plaintiff in error will 
 then have nothing in the record upon which he can assign errors, and 
 will fail in his effort to reverse the judgment, (i Saund. 318, a 
 Archb. P. K. B. 73.) By the rules of the common law, great nicety 
 and exactness were required in the proceedings and pleadings in a 
 suit; small errors and inaccuracies were always sure to be fatal to 
 the party making them ; as for instance, in bailable actions, the decla- 
 ration should always correspond with the writ in the names of the 
 parties, and in the cause of action {Bingham v. Dickie, i Eng. C. L. 
 :vep. 276, Archb. Pra. 68, 69, 124), and if there w^as a variance in 
 these, or in the sum demanded, Ijetween the w rit and declaration, it 
 would be fatal. (Archb. 68.)'*' 
 
 ■^See also 3 Blackstone'.s Commentaries, 270, chaps. 18 and 19; Arcli- 
 bold's Practice, bk. I, pt. i ; Tidd's Practice, chaps. 5 to 11 ; Troubat & Haly's 
 Practice, ch. 6; 32 Cyc. 419. 
 
 In modern Hnt;Iish practice every action in the high court of justice is 
 commenced either by a writ or by an originating summons. A writ is a formal 
 document by which'the king commands tlie defendant to enter an appearance 
 within so many days (usually eight) if he wishes to dispute plaintiff's claim, 
 otherwise judgment will be signed against him. The writ specifies the name 
 and residence of each plaintiff and defendant and the name and place of 
 business of th.e plaintiff's solicitor. It also specifies the division of the high 
 court in which the plaintiff intends to sue. Besides the formal statements 
 ever\- writ must be endorsed with a statement of the nature of plaintiflf's 
 claim and of the relief or remedy required in the action. Ordinarily the en-
 
 HAIL Z'. SPENCER 283 
 
 HAIL z: SPENCER. 
 
 Supreme Court of Rhode Island, 1835 
 
 I R. I. 17. 
 
 By the Court: The note declared on is dated October 31, 1828, 
 and signed by Esek. Spencer. The writ, dated October 2y, 1834, is 
 admitted to" have been sent to the officer for service, a day or two 
 before the 31st October, 1834, but ins_not_admitted that_the officer 
 received the writ before the day of service,^" *"" " " 
 
 Was the action commenced within six years? 
 
 Our act of limitations seems to be not materially different from 
 the English statute, adopted as early as the reign of James I. And it 
 seems to be reasonable to conclude that the English construction was 
 perfectly understood by our legislature. If, therefore, the language 
 of both statutes is substantially the same, our legislature must have 
 used the language with a view to the meaning given to it by English 
 courts. In fact the principles of the decisions of those courts have 
 been uniformly recognized in ours, as truly expounding the meaning 
 of the act. If the issuing of the English capias be considered in the 
 common pleas, then, the commencement of the suit (and it in fact is 
 in all cases where an outlawry is not contemplated), there can be 
 no good reason why the issuing of our writ of arrest, or original 
 summons (which takes the place of the arrest), should not, on like 
 principles, be deemed the commencement of the suit. The writ of 
 arrest is nothing more than the English capias, naturalized here, or 
 accommodated to our institutions. Now it is admitted that the writ, 
 in this case, v>-as issued prior to the expiration of the six years, and. 
 
 dorsement is a general statement of the nature of the claim, but in certain 
 cases the plaintiff is permitted to state the particulars of the case in full 
 detail on the back of the writ, which is then said to be specially endorsed. 
 When the writ is drafted, unless the plaintiff is obliged to apply for special 
 leave, as where the defendant is out of England or it is proposed to unite dif- 
 ferent causes of action, the writ is taken to the central office of the high 
 court or to a district registry, where a signed copy is stamped and filed and 
 a second copy impressed witli a seal and handed back for service. The plain- 
 tiff or his solicitor serves this by showing it to the defendant and leaving 
 with him a correct copy. If the action is for the recovery of land and no one 
 is in possession, the writ is served by posting. Odgers on Pleading & Prac- 
 tice, ch. i; Stephens' Commentaries "(15th ed.), vol. 3, p. 523. 
 
 In the United States the commencement of an action is generally regu- 
 lated by statute, and ^vhile many of the ancient names are retained, the 
 practice bears little analogy to the common law. The most common name 
 for the writ by which a personal action is commenced is "A Summons." For 
 example s ee, Penn^vhiania Act of Tune i^. 1836, P. L. ^6 8. § i ; P. & L. 
 Dig. (2d ed.) 5770; New York Code of Civ. Proc. §§ 4t6-4TS. In some juris- 
 dictions suit is commenced by notice. See Leas v. Merriman, 132 Fed. 510 
 (1904) ; McKcnna v. Cooper, 79 Kans. 847 (1909). 
 
 The praecipe is a memorandum addressed by the attorney to the clerk 
 of the court containing directions for the preparation of the writ and an 
 order for its issuance. Potter v. Hutchinson M. Co., 87 Mich. 59 (1891). 
 
 ""Part of the opinion is omitted. The court at this time consisted of Dur- 
 fee, C. J., Hailc, J., and Staples, T.
 
 284 ACTIONS 
 
 unless Uie actual receipt of the service of it, by the officer, be neces- 
 sary to constitute the commencement of the action, it was com- 
 menced within the six years. In the ordinary acceptation of terms, 
 the action is certainly commenced when the writ is issued, but to 
 answer the intent of the statute, is something more than this re- 
 quired? If more, what is it? Is it the service of the writ? If so, 
 it is the sherilT who commences the suit, and not the ])laintiff. And 
 the ability of the sheriff to make the service, may depend on a thou- 
 sand circumstances, over which neither he nor the i)laintiff may 
 have any control ; nay, even on the will of the debtor himself, as his 
 absence from the coimty. We can not suppose that the legislature, 
 in any event, intended to make a man's rights dependent on such 
 contingencies. 
 
 Is it the receipt of the v.rit by the sheriff that is required in 
 order to constitute the commencement of an action? If so, its com- 
 mencement may still depend on contingencies wholly independent of 
 the plaintiff', as the sherift"'s occasional absence, his sickness, or his 
 want of official qualifications. But at any rate, why should the re- 
 ceipt of it by the sheriff be required. As long as tlie defendant is 
 untouched by the precept, of what consequence is it to him, whether 
 it be in the hands of the plaintiff or the sheriff How can his liabil- 
 ity be affected by this or that event? The truth is, that in contem- 
 plation of law, the writ is issued on the application of the creditor, 
 by the sovereign power of the state, through the instrumentality of 
 its officers. It is the state's precept or command, and is issued and 
 the action commenced, whenever it is in the hands of the plaintiff, 
 or his attorney, ready to fulfill its purpose. In this view the com- 
 mencement of the action depends wholly on the will, or the diligence 
 of the plaintiff. If he loses his right, it is wholly the result of his 
 neglect. It should, however, be followed up by such acts as show 
 that it is a real and not a pretended commencement of a suit. For if 
 there be an unusual lapse of time between the day of the date of the 
 writ, and that of its delivery to the sheriff, and wholly unexplained, 
 it might raise a presumption against the correctness of the date, 
 which would force on the jilaintiff the necessity of proving its cor- 
 rectness.^^ 
 
 We have been unable to ascertain, that in any state with the 
 exception of JTonnecticut, the service of the writ is considered~"the 
 cTnTTTnHTcement of the action. Itjs_belieyed, that all Qth^r_sjates 
 consider the issuing of the writ as the comuKiu » rimt of_ _the suit . 
 And, iff fact, in the case cited from 4 Conn. R. 1 5, 1 , the court seems 
 to build its decision rather on the received oi)inion, or established 
 practice of that state, than on any judicial decisions, English or 
 American.^* It indeed considers a decision in Massachusetts, that a 
 
 ''As to what is reasonable diligence in endeavoring to obtain service, 
 compare Marble v. Hinds, 67 Maine 203 (1877), with Tracy v. Grand Trunk 
 R. Co., 76 Vt. 313 (1904). 
 
 '"Jencks v. Phelps, 4 Conn. 149 (1822). Accord: Sanford v. Dick, 17 
 Conn. 213 (1845); Bonnet v. Ramsay, 6 Martin (La.) N. S. 129 (1827); 
 Scarlc v. Adams, 3 Kans. 515 (1866) ; Detroit Free Press v. Bagg, 78 Mich. 
 650 (1889) ; Hayton v. Beason, 31 Wash. 317 (1903)-
 
 HAIL V. SPENCER 285 
 
 writ may be altered at any time before its service, as recognizing the 
 service as the commencement of the suit. Nobody can doubt the 
 right of the plaintiff to alter his writ, or, in other words, to make a 
 new one of it, at any time before service ;'btit the true date of the 
 writ would then be the day of its alteration, which, if necessary, 
 might be proved. But at any rate, the inference in this case was 
 wrong. The service of the Avrit is not considered in Massachusetts 
 the commencement of the action. Dane takes it for granted that the 
 suit is commenced when the writ is issued. (Digest, v. i, ch. 29, art. 
 7, sec. 3.) And in Ford v. Phillips (i Pick. 202), the making and 
 not the service of the writ, is considered the commencement of the 
 suit.^° 
 
 Since, therefore, the writ in this case was issued within the six 
 years, and since the issuing of the writ appears to me to have been 
 the commencement of this suit, I do not see the propriety of going 
 into a very wide estimate of the plaintiff's further diligence. The 
 law bars his action after the six years, and it seems to me to give 
 him the benelit of the whole of that time, without imposing upon 
 him the necessity of making calculations as to contingencies arising 
 from circumstances over which he has no control. 
 
 "The statute did not intend to bar," says Lord Mansfield, "un- 
 less the party had acquiesced six years, but he who sued out a latitat 
 to bring the defendant into custody, did not acquiesce, within the 
 true meaning of the act." Johnson v. Smith (2 Burr. 961). 
 
 Let judgment be entered for the plaintiff, for the principal and 
 interest of the note, together with the amount of the account and 
 costs. '"' 
 
 '•'So, also, Gardner v. Wchhcr, 34 Mass. 407 (1835), but the writ must be 
 "made with the intention to have the same seasonably served." Bunker v. 
 Shed, 49 Mass. 150 (1844). 
 
 "" The general rule is that a suit is commenced when a writ is sued out 
 with the bona fide intention of being served. Society v. Whitcomb, 2 N. H. 
 227 (1820) ; Burdick v. Green, 18 Johns. (N. Y.) 14 (1820) ; Johnson v. Far- 
 zvell, 7 Maine 370 (1831) ; McClure v McClitre, I Grant Ca. 222 (Pa. 1855) ; 
 Chapman v. Goodrich, 55 Vt^ssTTiSSjTrToT the purpose of stopping the 
 running of the statute of limitations, however, it is also generally held that 
 the writ must be delivered or put in the course of delivery to the proper offi- 
 cer for service. Ross v. Luther, 4 Cow. (N. Y.) 158 (1825) ; Mason v. Cheny, 
 47 N. H. 24 (1S66), particularly instructive; Lesure L. Co. v. Mutual F. I. 
 Co., loi Iowa 514 (1897) ; Huxsman v. Evening Star N. Co., 12 App. Ca. 
 D. C. 586 (1898) ; Nichols v. British American L Co., 109 Ga. 621 (1900); 
 County V. Pacific Coast Borax Co., 67 N. J. L. 48 (1901) ; Dcdenbach v. De- 
 troit, 146 Mich. 710 (1906). Contra: Williams v. Roberts, i Cromp. M. & R. 
 676 (1835) ; Schroedcr v. Merchants' & M. T. Co., 104 111. 71 (1882), hold- 
 ing that the writ need not be delivered for service. 
 
 By the New York Code of Civil Procedure, §§ 398, 399, an action is 
 commenced when the summons is served on the defendant. But an attempt 
 to commence an action is equivalent where the summons is delivered to the 
 sheriff with the intent that it shall be actually served, followed by actual 
 service, or service by publication, within sixty days after the expiration of 
 the time limited for the commencement of the action. See Riley v. Riley, 141 
 N. Y. 409 (1894). 
 
 In equity see Miller v. Rich, 204 111. 444 (1903) ; United States v. Miller, 
 163 Fed. 444 (1908). 
 
 In England under the rules of the Supreme Court, order VIII, rule i,
 
 286 ACT KINS 
 
 IKSSK ROMAIX :•. T.OAKI) ()|.^ COMMISSIONERS OF 
 
 AirscATixi-: au'XTv. 
 
 SlTKl'Ml-: Coi'UT Ol' IciWA, iS.].}. 
 Morris's (/ou'a) ^f^j. 
 
 This was an action of trcsi)ass brouij^ht by the board of commis- 
 sioners of the county of Muscatine, trustees of a school section, 
 against Jesse Romaine. Upon the summons issued and returned in 
 this case, there was the following: 
 
 "I hereby authorize George Hunt to serve the within summons 
 according to law, for and at my risk. 
 
 "James Davis, Sheriff. M. 
 
 '"Septcmlier 28, 1840." 
 
 "As per authority of James Davis, sheriff of Muscatine county, 
 T served the within, on the 26th day of September, by informing 
 him, the defendant, that I had a writ for him ; he, the defendant, 
 immediately fled from my presence, I then left a copy of the within 
 in the care of Benjamin Brooks, he being a man person over the 
 age of fifteen years, and said Brook's house being defendant's usual 
 place of residence. 
 
 "G. W. Hunt. 
 
 "Returned October 14, 1840." 
 
 The defendant moved to quash the summons : 
 
 (i.) Because it was not served upon the defendant according 
 to law. (2.) That there had been no service upon the defendant by 
 an officer of that court or any other person legally authorized. 
 Which motion w^as overruled. Thereupon came a jury to inquire 
 into and assess the damages, and a verdict and judgment was ren- 
 dered for the plaintiff for sixty-eight dollars and ninety cents. 
 
 To reverse this judgment the defendants belou' sued out their 
 writ of error. 
 
 Mason, C. J.: The service of the summons in this case was 
 clearly defective, and there was no appearance to cure that defect. 
 The return is dated October 14, 1840. We can not find tliat at that 
 date there v.as any other than a personal service provided for. On 
 the 31st of December, following, a law was passed authorizing a 
 service by copy where the defendant can not be found, but the re- 
 turn in this case was wholly irregular under that law. 
 
 In the first place the certificate of a ])erson, not a sworn officer, 
 is not a sufficient return ; secondly, it does not appear to have been 
 left at the place of residence of the defendant, but merely with 
 Benjamin Brooks; and, thirdly, the contents of the writ do not ap- 
 pear to have been stated to said Brooks. In the absence of any 
 
 a writ not served may be renewed on application to tlie court, but the prac- 
 tice is not to renew where the plaintiff's claim would, but for such renewal, 
 be barred. Ifcuctt v. Barr, L. R. (1891), i Q. B. Div. 98.
 
 CASSIDV V. LElTCir 287 
 
 statute on the subject, service must be personal. Where the statute 
 provides a substitute, the terms and conditions of that substitute 
 must be complied with.'^^ 
 Reversed. 
 
 CAS SIDY V. LEITCH. X 
 
 New York Common Pleas, 1877. 
 
 2 Abbott's .Kew Cases 315.'" 
 
 Trial by the court. 
 
 Van Hoesen, J. : This action is founded upon a judgment re- 
 covered in the. .state, of Louisiana. The Louisiana suTt was begun 
 and judgment rendered therein in the year 1869. At the commence- 
 ment of the suit, and for some time pr~Toi~as well as subsequent 
 thereto, the defendant was domiciled at the corner of Rampart and 
 Terpsichore streets in the city of New Orleans. He was absent 
 from home when the suit was begun, and the citation and the peti- 
 tion (papers which correspond to the summons and the complaint 
 of our New York practice) were served upon him by the sheriff 
 leaving a copy of them at the domicile of the defendant with his (the 
 defendant's) wife, who vvas a white person above the age of 14 
 years, and who dwelt in the same domicile with said defendant. 
 
 The return of the sheriff is in strict conformity with the law 
 of Louisiana as expounded by the courts of that state (Code of 
 Practice, sees. 189, 190, 201 ; Kendrick v. Kendrick, 19 La. 38). 
 
 The defendant, as has been said, was domiciled in Louisiana, 
 and owed allegiance to that state, and submission to its laws. 
 
 The manner of serving process must necessarily be regulated by 
 everv country for itself; and if a state permits process to be served 
 upon orie of its own citizens by the leaving of it in his absence at 
 his domicile with an adult member of his household, that method of 
 service is not so repugnant to the principles of natural justice that 
 
 ^ "In making service of the summons, and in the return of such service, 
 the provisions of the statute must be and must appear to have been substan- 
 tially observed and followed by the officer, otherwise the proceedings can not 
 be supported." People v. Bernal, 43 Cal. 385 (1872); Bennet v. Hozvard, 2 
 Day (Conn.) 416 (1807); Fitlcher v. Lyon, 4 Ark. 449 (1842); Wilsjn v. 
 Hayes, 18 Pa. 354 (1852) ; Hynek v. Louis and Clara Englest, 11 Fov^'a' 210 
 ("i8'6or; Water Lot Co. v. Bank of Bninszi'ick, 30 Ga. 68t (i860) ; Maker v. 
 Bull, 26 111. 348 (1861) ; Coffee v. Gates, 28 Ark. 43 (1872) ; Hiller v. Burling- 
 ton & M. R. Co., 70 N. Y. 223 (1877) ; People v. Judge of Superior Court, 38 
 Mich. 310 (1878) ; Blake v. Smith, 67 N. H. 182, 38 Atl. 16 (1892) ; Late v. 
 Grammes, 158 111. 492, 41 N. E. 1080 (1895); Savings Bank v. Anthier, 52 
 Minn. 98, 53 N. \V. 812, 18 L. R. A. 498 (1892) ; Eisenhofcr v. New Yorker 
 Z. P. Co., 91 App. Div. (N. Y.) 94, 86 N. Y. S. 438 (1904) ; Warrick v. Mc- 
 Cormick, 150 Ky. 800 (1912). The statutory provisions for personal service 
 and substitutes therefor in the various states differ greatly in their require- 
 ments and must be consulted for local details. See the various local works 
 on practice and Elliott's General Practice, ch. 10. 
 
 ""The arguments of counsel and part of the opinion are omitted.
 
 j8S At rioNs 
 
 a foreign tribunal shouM refuse to recoj^nize it and treat a sentence 
 founded on it as a nullity (3 Burjje l-'oreij^n and Colonial Laws, 
 1056). 
 
 A foreis^n jud.nnient rendered atijainst a oili/en of the state 1n 
 which it was i)ronounccd. stands on a very different footing from a 
 forei;:fn judgment against one who owed no allegiance to and was not 
 subject to the jurisdiction of the state in which it was rendered. 
 
 In order to make the answer in this case sufficient, there should 
 
 the added to it allegations showing that the defendant was not domi- 
 
 [ciled in Louisiana or subject to the laws of that state, or that the 
 
 [judgment is not binding there, or that it is contrary to natural jus- 
 
 ^tice. As a plea in bar the answer is fatally defective. 
 
 ' After reading the testimony of the defendant, no surprise will be 
 
 felt at his omission to contest the plaintiff's claim. I think judgment 
 
 should be rendered in favor of the plaintiff for the sum claimed in 
 
 the complaint. "•'' 
 
 \'erdict for i)laintii"f for $9,107.85. 
 
 WALLACE v. UNITED ELECTRIC COMPANY. >J 
 Supreme Court of Pennsylvania, 1005. 
 
 211 Pa. 473. 
 
 Appeal bv plaintiff from a decree of Court of Common Pleas 
 No. I, Philadelphia, setting aside service of a bill in equity for dis- 
 covery and an accounting in the case of Albert E. Wallace v. United 
 Electric Company of Nezv Jersey and United Gas Improvement 
 Company.''*" 
 
 Brown, ].: \ 'Iccrco for discovery is a personal one to be en- 
 forced a_gain.-i i!- i'ci-(i;i ilccrccd to make it ; and, if the appellee 
 "waT~pfoperly Ijrought within the jurisdIctTon of the court below 
 personaliv. a' decree that it make discovery could be enforced against 
 it personally bv the appellant as his first move to obtain the ultimate 
 
 '•'Substituted service in actions in personam is a departure from the 
 common-law rule requiring personal service and the statute authorizing: such 
 service must be followed strictly. But when the statute is complied with, 
 the general rule is that substituted service on a resident defendant is equiva- 
 lent to personal service and warrants a personal judgment. 19 Ency. PI. 
 & Pr. 624; 32 Cyc. 461 ; ^iijac v. Mm^mL.3 Yeates (Pa.) 258 (1801) ; Con- 
 well v. Ativood, 2 Ind. 289 (1S50T; Hope v. Hope, 4 DeG. M. & G. 328 (1854) ; 
 Sturgis v. Fay, 16 Ind. 429, 79 Am. Dec. 440 (1861) ; Beard v. Beard, 21 Ind. 
 321 (1863) ; Knox v. Miller, 18 Wis. 397 (1864) ; Castlcton v. Wcyhridue, 46 
 Vt. 474 (1874) ; Ditftos V. Burlinciham, 34 L. T. (N. S.) 688 (1876) ; Betan- 
 court V. Eberlin, 71 Ala. 461 (1882) ; Dul'al v. Johnson, 39 Ark. 182 (1882) ; 
 Giles V. ?Jicks, 45 Ark. 271 (1885) ; People v. House, 4 Utah 382, 10 Pac. 843 
 (1886) ; Hurlbnt V. Thomas, 5s Conn. 181, 10 Atl. 5.56, 3 Am. St. 43; Missouri, 
 K. & T. R. Co. V. Norris, 61 Minn. 2S6 (189.S) ; Jay v. Bndd, L. R. (1898), l 
 Q, E. 12; Nelson v. Chicago, B. & Q. R. Co., 225 111. 197 (1907) ; Atchi.wn 
 Co. V. Challiss. 65 Kans. 179 (1902) ; Park Land Imp. Co. v. Lane, 106 Va. 
 304 (1906) ; Abbott V. Abbott, loi Maine 343 (1906). 
 
 "' A part of the opinion of the court is omitted.
 
 WALLACE v. ELECTRIC COMPANY 289 
 
 relief asked for. In view of this, the proceeding must, as was held 
 by the learned judge below, be regarded as in personaui as to the 
 appellee; and the question whether the Act of April 6, 1859, P. L. 
 387, even if it does authorize extra-territorial service of process 
 from a court of this state, is effectual to acquire jurisdiction over 
 the person of a defendant residing and served in anotlier state, is 
 not an open one. 
 
 Before the passage of that act, Chief Justice Gibson, in discuss- 
 ing the attempt to acquire jurisdiction over the person of the 
 defendant by the extra-territorial service of process, said in Steel 
 V. Smith, 7 W. & S. 447: "Jurisdiction of the person or property 
 of an alien is founded on its presence or situs within the territory. 
 Without this presence or situs, an exercise of jurisdiction is an act 
 of usurpation. An owner of property who sends it abroad subjects 
 it to the regulations in force at the place as he would subject his 
 person by going there. The jurisdiction of either springs from the 
 voluntary performance of an act, of whose consequence he is bound 
 to take notice. But a foreigner may choose to subject his property, 
 reserving his person; and it is clear that jurisdiction of property 
 does not draw after it jurisdiction of the owner's person; conse- 
 quently, there can be no rightful action by the tribunal on the 
 foundation of jurisdiction acquired by the attachment of property, 
 which reaches beyond the property itself. What, then, is the right 
 of a state to exercise authority over the persons of those who be- 
 long to another jurisdiction, and who have, perhaps, not been out of 
 the boundaries of it? 'The sovereignty united to domain,' says 
 Vattel, 'establishes the jurisdiction of the nation over its territories 
 or the countries which belong to it. It is its province, or that of its 
 sovereign, to exercise justice in all places under its jurisdiction, or 
 the county which belongs to it; to take cognizance of the crimes 
 committed and the differences that arise in the country.' 'On the 
 other hand,' adds Mr. Justice Story (Confl. ch. 14, sec. 539), no 
 sovereignty can extend its process beyond its own territorial limits, 
 to subject other persons or property to its judicial decisions." 
 
 The first section of the Act of 6th April, 1859, authorizes any 
 court of this commonwealth having equity jurisdiction, in any suit 
 in equity instituted therein concerning property within the jurisdic- 
 tion of the said court, to order and direct that any subpoena or other 
 process to be had;, in .such_su]t_be^ served on any defendant therein 
 ThTfTTesTcIIng or being out of the jurisdiction of said court wherever 
 he, she or they may resicle or be found.' It further provides for the 
 pfobr"of~service both within and without the limits of the United 
 States. It was held in Coleman's Appeal, 75 Pa. 41, that process 
 thus issued in this state and served in another state on a resident 
 thereof could not give jurisdiction of the person thus served." In 
 the federal courts the same view is entertained. By a statute of the 
 state of Oregon provision was made for service upon a nonresident 
 by publication. In Pennoyer v. Neff, 95 U. vS. 714, it appeared that 
 judgment had been entered against Neff on process which the plain- 
 
 19 — Civ. Prog.
 
 290 ArruiNs 
 
 tiiY inulciti)i)k to have served upon him extra-territorially, by publi- 
 cation, in conformity to the statute. Juclj^nient was entered in the 
 l»roccedins; a!::ainst liim, and, in holding; that he was not hound by 
 lit, through Mr. justice FicUl, it was said: "Where the entire object 
 lof the action is to determine the jiersonal rights and obHgations of 
 Ithc defendants, that is, where the suit is merely in personam, con- 
 [structive service in this form upon a nonresident is ineffectual for 
 any purpose. Process from the tribunals of one state can not run 
 into another state, and summon ])artics there domiciled to leave its 
 territory and respond to proceedings against them." In the Circuit 
 Court of the United States, for the western district of this state, in 
 the case of McHcnry v. Nexv York P. & O. R. R. Co., 25 Fed. Repr. 
 65, the Court of Common Pleas of Westmoreland County had made 
 an order of service on aliens in pursuance of the act of 1859, but 
 it was said by the circuit court: "It is, indeed, true that pursuant 
 -to an order of the court of common pleas, claimed to be authorized 
 by the Pennsylvania Act of April 6, 1859, P. L. 387, process has 
 been served on those defendants in England, where they reside, but, 
 clearly, such extra-territorial service was ineffectual to bring them 
 within the jurisdiction of the court or make them parties to the 
 suit." 
 
 The service upon the appellee was inetiectual to bring it into this 
 jurisdiction, and the order of the court below setting it aside was 
 properly made. That order is now affirmed and this appeal dismissed 
 at the costs of appellant.''^ 
 
 '''^Buchanan v. Rucker, 9 East 192 (1808) ; Bissell v. Briggs, 9 Mass. 462, 
 6 Am. Dec. 88 (1813); Borden v. Fitch, 15 Johns. (N. Y.) 121, 8 Am. Dec. 
 225 (1818) ; Skinner v. McDaniel, 4 Vt. 418 (1832) ; Gifford v. Thorn, 7 N. J. 
 Eq. 90 (1848) ; Litchfield v. Burwell, 5 How. Pr. (N. Y.) 341 (1850) ; Harris 
 V. Hardeman, 14 How. (U. S.) 334, 14 L. ed. 444 (1852) ; Cooper v. Reynolds, 
 10 Wall. 308, 19 L. ed. 931 (1870) ; Thompson v. Whitman, 18 Wall. (U. S.) 
 457 (1873) ; Isett v. Stuart, 80 111. 404, 22 Am. Rep. 194 (1875) ; Pennoyer v. 
 ^'eff, 95 U. S. 714, 24 L. ed. 565 (1877) the leading case; Harkness v. Hyde, 
 98 U. S. 476, 25 L. ed. 237 (1878) ; Qitarl v. Abbett, 102 Ind. 233, i N. E. 476, 
 52 Am. Rep. 662 (1885); Heuntson v. Fabre, L. R. (1888), 21 Q. B. 6; 
 Rand v. Hanson, 154 Mass. 87, 28 N. E. 6, 12 L. R. A. 574, 26 Am^ St. 210 
 (1891); Anheuser-Busch Brew. Assn. v. Peterson, 41 Nebr. 897 (1894); 
 Cabanne v. Graf, 87 Minn. 510, 92 N. W. 461, 59 L. R. A. 735, 94 Am. St. 722 
 (1902) ; First Nat. Bk. v. Eastman, 144 Cal. 487, 77 Pac. 1043, 103 Am. St. 95 
 (1904) ; Hildreth v. Thibodeau, 186 Mass. 83, 71 N. E. 111,104 Am. St. 560 
 (1904) ; Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867 (1905) ; Martin v. 
 Martin, 214 Pa. 389 (1906); Wetmore v. Karrick, 205 U. S. 141 (1906);' 
 Brown V. Fletcher, 210 U. S. 82 (1907) ; Emanuel v. Symon, L. R. (1908), I 
 K. B. 302; Loii'rie v. Castle, 198 Mass. 82 (1908). 
 
 An appearance in the case, or its equivalent, is a waiver of the defective 
 service. Kecler v. Kccler, 24 Wis. 622 (1869) ; Pearce v. Bogert, 10 Daly (N. 
 Y.) 277 (1881); Allured v. Voller, 107 Mich. 476, 65 N. W. 285 (1895); 
 Stamcv v. Barkley_^ 2ii Pa. 313, 60 Atl. 991 (1905). As to whether the ac- 
 knowledgment alone of service outside the jurisdiction will afford a basis 
 for a personal judgment, compare Richardson v. Smith, 11 Allen (Mass.) 
 134 (185?) ; Johnson v. Monell, 13 Iowa 300 (1862) ; Clark v. Tull, 113 Iowa 
 143, 84 X. W. 1030 (1901) with Litchfield v. Burwell, 5 How. Pr. (N. Y.) 
 341 (1850) ; Weatherbee v. U'eatherbee, 20 Wis. 499 (1866) ; Scott v. Noble, 
 "2 Pa. 115, 13 Am. Rep. 663 (1872) ; Smith v. Chilton, 77 Va! 535 (1883) ;
 
 GOLDEY Z-. MORNING NEWS 29 1 
 
 GOLDEY z: AIORNING NEWS. 
 
 Supreme Court of the United States, 1895. 
 
 156 U. S. 518. 
 
 This was an action for a libel, claiming damages in the sum of 
 Sioo,ooo, brought in the Supreme Court of the -state of New York 
 for the county of Kings, by Catherine Goldey, a citizen of the 
 state of New York, against The Morning News of New Haven, a 
 corporation organized and existing under the laws of the state of 
 Connecticut, and carrying on business in that state only, and having 
 no place of business, officer, agent or property in the state of New 
 York. 
 
 The action was commenced January 4, 1890, by personal service 
 of the summons in the city and state of New York upon the presi- 
 dent of the corporation, temporarily there, but a citizen and resident 
 of the state of Connecticut; and on January 24, 1890, upon the 
 petition of the defendant, appearing by its attorney specially and 
 for the sole and single purpose of presenting the petition for re- 
 moval, was removed into the Circuit Court of the United States for 
 the Eastern District of New York, because the parties were citizens 
 of different states, and the time within which the defendant was re- 
 quired by the laws of the state of New York to answer or plead to 
 the complaint had not expired. 
 
 In the Circuit Court of the United States the defendant, on Feb- 
 ruary 5, 1890, appearing by its attorney specially for the purpose of 
 applying for an order setting aside the summons and the service there- 
 of, filed a motion, supported by affidavits of its president and of its 
 attorney to the facts above stated, to set aside the summons and the 
 service thereof, upon the ground "that the said defendant, being a cor- 
 poration organized under the laws of the state of Connecticut, where 
 it solely carries on its business, and transacting no business within 
 the state of New York, nor having any agent clothed with authority 
 to represent it in the state of New York, can not legally be made a 
 defendant in an action by a service upon one of its officers while 
 temporarily in said state of New York." Thereupon, that court, 
 after hearing the parties on a rule to show cause why the motion 
 should not be granted, "ordered that the service of the summons 
 herein be, and the same is hereby, set aside and the same declared 
 to be null and void and of no effect, and the defendant is hereby 
 relieved from appearing to plead in answer to the complaint or other- 
 wise herein." 42 Fed. Rep. 112. The plaintiff sued out this writ of 
 error. ^^ 
 
 Gray, J. : This v^rit of error presents the question whether, in a 
 personal action against a corporation which neither is incorporated 
 
 Riker v. Vaiighan, 23 S. Car. 187 (1885); Godivin v. Monds, 106 N. Car. 
 448, 10. S. E. 1044 (1890) ; White v. White, 66 W. Va. 79 (1909). 
 
 As to proceedings in rem, see the chapter on Judgments, sec. 7 (b) infra. 
 
 " Only so much of the opinion as relates to the service of process is 
 printed.
 
 292 ACTIONS 
 
 nor docs business within the slate, nor has any aj^ent or property 
 tliercin, service of the summons upon its president, temporarily 
 within the juris(Hction, is suflicient service upon the corporation. 
 
 L^pon the cpiestion of the \a]idity of such a service as was made 
 in this case, there has been a dirfcrence of opinion between the courts 
 of the state of New York and the Circuit Courts of the United 
 States. Such a service has been held valid by the Court of Appeals 
 of New York. Miller v. Burlin<iton & Missouri Railroad, 70 N. Y. 
 22T^ ; Pof^e V. 7Vr;v Haute Co., 87 N. Y. 137. It has been held invalid 
 by the Circuit Courts of the United States, held within the state of 
 New York ; Good Hope Co. v. Raikvay Barb Fejicing Co., 23 Blatch- 
 ford 43; Goldey v. Morning News, 42 F'ed. Rep. 112; Clews v. 
 Woodstock Co., 44 Fed. Rep. 31 ; Bentlif v. London & Colonial 
 Corporation, 44 Fed. Rep. 667; .hnerican Wooden Ware Co. v. 
 Stent, 63 Fed. Rep. 676 ; as well as in other circuits. Elgin Co. v. 
 .Itcliison, etc., Raihcoay, 24 Fed. Rep. 866; United States v. Amer- 
 ican Bell Tel. Co., 29 Fed. Rep. 17; Carpenter v. Westinghouse Co., 
 32 Fed. Rep. 434 ; St. Lonis Co. v. Consolidated Barb Wire Co., 32 
 Fed. Rep. 802 ; Reif snider v. American Publishing Co., 45 Fed. Rep. 
 433; Fidelity Co. v. Mobile Roilzvay, 53 Fed. Rep. 850. It becomes 
 necessary, therefore, to consider the question upon principle, and in 
 the light of the previous decisions of this court. 
 
 It is an elementary ])rincij)le of jurisprudence, that a court of 
 justice can not acquire jurisdiction over the person of one who has 
 no residence within its territorial jurisdiction, except by actual 
 service of notice within the jurisdiction upon him or upon some one 
 authorized to accept service in his behalf, or by his waiver, by gen- 
 eral appearance or otherwise, of the want of due service. Whatever 
 effect a constructive service may be allowed in the courts of the 
 same government, it can not be recognized as valid by the courts 
 of any other government. D'Arcy v. Ketclmm, 11 How. 165; 
 Knozvles v. Gaslight Co., 19 Wall. 58; Hall v. Lonning, 91 U. S. 
 160; Pennoyer v. Neff, 95 U. S. 714; York v. Te.vas, 137 U. S. 15; 
 Wilson V. Seligman, 144 U. S. 41. 
 
 For example, under the provisions of the Constitution of the 
 United States and of the acts of congress, by which judgment of the 
 courts of one state are to be given full faith and credit in the courts 
 of another state, or of the XJnited States, such a judgment is not 
 entitled to any force or efifcct, unless the defendant was duly served 
 with notice of the action in which the judgment was rendered, or 
 waived the want of such notice. Constitution, art. 4, sec. i ; Acts 
 of May 26, 1790, ch. 11, i Stat. 122, and March 27, 1804, ch. 56, 2 
 .Stat. 299; Rev. Stat. sec. 905; Knowles v. Gaslight Co. and Pen- 
 noyer V. A'^ri^^, above cited. 
 
 If a judgment is rendered in one state against two partners. 
 jointly, after serving notice upon one of them only, under a statute 
 of the state providing that such service shall be sufficient to author- 
 ize a judgment against both, yet the judgment is of no force or 
 efifcct in a court of another state, or in a court of the United States, 
 against the partner who was not served Avith process. D'Arcy v. 
 Ketchum, and Hall v. Lanning, above cited.
 
 DUN LAP Z'. CODY 293 
 
 So a judgment rendered in a court of one state, against a cor- 
 poration neither incorporated nor doing business within the state, 
 must be regarded as of no vaUdity in the courts of another state, or 
 of the United States, unless service of process was made in the 
 tirst state upon an agent appointed to act there for the corporation, 
 and not merely upon an officer or agent residing in another state, 
 and only casually within the state, and not charged with any busi- 
 ness of the corporation there. °'' 
 
 Judgment affirmed. 
 
 DUNLAP v. CODY. . 
 
 Supreme Court of Iowa, 1871. ^ 
 
 31 lozva 260.°* 
 
 Suit lujon a judgment rendered by the Circuit Court of Hancock 
 Coimfy, Illihois, for the sum of $1,145.31. The defendant in answer 
 denies any indebtedness, and alleges that the note upon which judg- 
 mehtTvas obtained was executed in Ohio on the 5th day of March, 
 1855, and at the time suit was instituted thereon was barred by the 
 statute of limitations ; that plaintifFs and their attorneys, in order 
 to'avoid the statute of limitations of the state of Iowa, and obtain 
 jurisdiction of the person of defendant in the state of Illinois, fraud- 
 
 ^' Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, i5 L- ed. 451 
 (1855) ; St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222 (1882) ; Fitzgerald Co. 
 V. Fitzgerald, 137 U. S. 98, 34 L. ed. 608 (1890) ; Mexican Central R. Co. v. 
 Pinkney, 149 U. S. 194, 37 L. ed. 699 (1893) ; In re. Hohorst, 150 U. S. 653 
 (1893) ; Conlcy v. Mathieson Alkali IVorks, 190 U. S. 406 (1903) ; Remington 
 V. Central Pacific R. Co., 198 U. S. 95, 49 L. ed. 959 (1905); Peterson v. 
 Chicago, R. I. & P. R. Co., 205 U. S. 364 (1906); Hcrndon-Carter Co. v. 
 N orris, 224 U. S. 496 (1912) ; St. Louis S. IV. R. Co. v. Alexander, 227 U. S. 
 218 (1913) ; Dobson v. Farbenfabriken Co., 206 Fed. 125 (1913) ; Ostrander v. 
 Deerfield L. Co., 206 Fed. 540 (1913). In International H. Co. v. Common- 
 wealth, 234 U. S. 579 (1914) it is said per Day, J.: "For some purposes a 
 corporation is deemed to be a resident of the state of its creation, but when 
 a corporation of one state goes into another in order to be regarded as within 
 the latter, it must be tliere by its agents authorized to transact its business in 
 that state. The mere presence of an agent upon personal affairs does not 
 carry the corporation into the foreign state. It has been frequently held by 
 this court, and it can no longer be doubted that it is essential to the rendi- 
 tion of a personal judgment that the corporation be doing business within 
 the state. * * * Each case must depend upon its own facts, and their con- 
 sideration must show that this essential requirement of jurisdiction has been 
 complied with and that the corporation is actually doing business within the 
 state." See further Phillihs v. Library Co . 141 Pa. 462, 21 Atl. 640, 23 Am. 
 St. 304 (1891) ; Foster v. Charles Bctcher Lumber Co., 5 S. Dak. 57, 58 N. W. 
 9, 23 L. R. A. 490, 49 Am. St. 859 (1894) ; Doctor v. Desmond, 80 N. J. Eq. 
 77 (1912) ; Kendall v. Orange Judd Co., 118 Minn. 1. (1912) ; Watkins Land 
 Mtg. Co. V. F.lliott, 62 Kans. 291 (1900) ; Payne v. Fast Union Lumber Co., 
 109 La. 706 (1903) ; Grant v. Cananea C. Co., 189 N. Y. 241 (1907) ; White- 
 hurst y. Kerr, 153 N. Car. 76 (1910) ; Fldred v. Palace Car Co., 105 Fed. 455, 
 45 C. C. A. T ( 1900) and note. As to service of process on corporations, gen- 
 erally, see Thompson on Corporations §§ 2990, 3050, and the local statutes. 
 
 "^ Part of the statement of facts and opinion of the court are omitted.
 
 294 A(.ri»).\s 
 
 iilcntly rcprcscntod to dcfondaiU that one Miatt, with others, was 
 about to erect an elevator at Carthaj^e, in Hancock County, lUinois, 
 to cost between $30,000 and l{^40,ooo, and induced defendant, who 
 lis a carpenter, to go to Hancock County for the purpose of looking 
 f at the site of said elevator. That they had the sheriff of Hancock 
 ' County in waiting, and that, as soon as defendant stepped from the 
 cars at Carthage, the said sheriff served him with a summons in 
 said cause. That the proposal of building the elevator was a pre- 
 tense made for the purpose of inducing defendant to go to Illinois 
 where plaintiff' could see him, and avoid the bar of the statute of 
 limitations of the state of Iowa. To this answer the plaintiff de- 
 murred. 
 
 The demurrer was overruled and judgment entered for defend- 
 ant with costs. Plaintiff's appeal. 
 
 Day, C. J.: Do the means used to oi)tain jurisdiction of the 
 person of defendant, in the courts of Illinois, amount to fraud? It 
 \ would seem that this question scarcely needs discussion. Fraud 
 ( consists in the suggestio falsi or the suppressio veri. Both exist here. 
 / The false statement was made to defendant by plaintiff's attorney 
 ' that Hiatt and others were about to erect an elevator in Hancock 
 County, Illinois, to cost between $30,000 and $40,000; and the de- 
 fendant, being a carpenter, was induced to go to Illinois to look at 
 the site of the proposed structure. The truth, that the object in 
 getting defendant into the state of Illinois, was to obtain jurisdiction 
 of his person in an action against him, and avoid the bar of the stat- 
 ute of limitations of the state of Iowa, was sup])ressed. It can not 
 be supposed that if the real facts and purpose had been made known 
 to defendant he would ^voluntarily have gone to Illinois, and subjected 
 himself to an action upon this demand, long since barred by the 
 statute of limitations of the state in which he resides. Counsel rep- 
 resenting plaintiff in this court, and v.-ho, it is but justice to say, 
 were not concerned in obtaining the judgment in Illinois, do not 
 seriously controvert the y)osition, that the mode of obtaining juris- 
 diction was fraudulent. They concede that it "smells somewhat of 
 fraud." The only palliation w^hich they are able to offer is the sug- 
 gestion of a doubt whether it may not be considered a "pious fraud" 
 in which "the end justifies the means." 
 
 We do not think that it is entitled even to that small measure of 
 charity. 
 
 An enlightened and just administration of the law, no less than 
 sound public morals, condemns such j^ractices, and demands that 
 the client whose cupidity could sanction, and the attorney whose 
 venality could execute, such a purpose, should alike be disgraced."^ 
 
 Affirmed. 
 
 "Accord: Stein v. Valkenhuysen, i El., B. & El. 65 (1858) ; Wauzer v. 
 Brujht, 52 111. 35 (1869) ; Williams v. Rccd, 29 N. J. L. 385 (1862) ; Metcalf 
 V. Clark, 41 Barb. (N. Y.) 45 (1864) ; Tcnvnscnd v. Smith, 47 Wis. 623, 3 N. 
 W. 439, 32 Am. Rep. 793 (1879) ; Columbia Placer Co. v. Hucynis Co., 60 Minn. 
 142, 62 N. VV. 115 (1895) ; Olcan St. R. Co. v. Con.slriiction Co., 55 App. Div. 
 (X. Y.) 292 (1900) : Harbison- 1 i'alL'cr Ref Co. v. Frederick.';^ 12 Pa. Dis. R. 
 419 (1903) ; CavanaglTv. Manhattan Transit Co., 133 Fed. 818^1903). Com-
 
 MORROW V. DUDLEY &- CO. 295 
 
 MORROW V. DUDLEY & CO. /T 
 
 United States District Court, Middle Dist. Pa., 1906. 
 144 Fed. 441. 
 
 Arciibald, J. : Service of the summons in this case was made 
 on W. D. Breaker, one of the defendants, a resident of New York, 
 on January 20, 1906, while he was at Scranton, Pa., for the purpose 
 of attending a hearing in bankruptcy before W. L. Hill, referee, in 
 support of a claim of the defendant firm against the La Plume Con- 
 densed Milk Company, of which the plaintifif is trustee. The hearing 
 was fixed for January 19th, and after the parties had met, and pro- 
 ceeded a certain distance, it was adjourned to the next day. Service' 
 was made after the completion of the adjourned hearing, as the de-; 
 fendant was on his way to the train to return home. The summons^ 
 were returnable the fourth Monday of February (February 26th), 
 the first day of the next term ; and, on February loth, the present 
 rule to set aside the service was taken. 
 
 Of the right of a party to attend a judicial hearing away from 
 the place of his residence, without being subjected to the service of 
 pirocess, there is, of course, no question, i Tr. & Haly Prac, sec. 
 236.- And hearings before a referee in bankruptcy are within the 
 rule. Ardlng v. Flozvcr, 8 Term Rep. 534; Selhy v. Hills, 8 Bing. 
 166; Ex parte King, 7 Ves. 312; Ex parte List, 2 Ves. & B. 373; 
 Matthe-iVs v. Tufts, 87 N. Y. 568. The privilege is personal, how- 
 ever, and may be waived ; and will be taken to be so, unless insisted 
 upon promptly. Mattliezvs v. Puffer (C. C.) 10 Fed. 606; Hendrick 
 V. Gates, 3 C. P. Rep. (Pa.) 160. There was a delay of three weeks 
 in the present instance, and it is contended that this operated as a 
 waiver. But I am not so persuaded. Ordinarily, it is sufficient if ap- 
 plication to set aside the service is made on or before the return day 
 (Lederer v. Adams, 19 Civ. Proc. R. [N. Y] 294, 11 N. Y. Supp. 
 481 ; McPherson v. Nesmitli, 3 Grat. [Va.] 237), provided no other 
 step has been taken in the case (i Tr. & Haly Prac. sec. 240), and 
 the situation of the parties has not changed meanwhile {JVebb v. 
 Taylor, 9 Jur. 39; Alassev v. Dantam. 12 Wkly. Notes Cas. [Pa.] 
 436; Young v. Armstrong, ij, Wkly. Notes Cas. [Pa.] 313). It 
 was held in Souder v. Burlmg, i Tr. & Haly Prac. sec. 236, note, 
 that it must be made before the defendant leaves the jurisdiction. 
 But the circumstances v.hich led to this observation are not stated, 
 
 pare Union Sugar Refinery v. Mathiesson, 2 Cliflf (U. S.) 304 (1864) ; Com- 
 mercial Nat. Bank v. Davidson, 18 Ore. 57 (1889) ; Kennedy v. Merritt, 55 
 Pitts. L. J. 261 (190S) ; McLain v. Parker, 88 Kans. 717 (1913)- 
 
 -Accord: Hayes v. Shiel d.';, 2 Yeates (Pa.) 222 (i797) ; Hnddes on v^ 
 Priser, 9 Phila. 65 (1872); Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35 
 (1876)'; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370 (1877); Murray 
 V. Wilcox, 122 Iowa 188, 97 N. W. 1087, 64 L. R. A. 534, loi Am. St. 263 
 (1904) ; Richardson v. Smith, 74 N. J. L. in (1906) ; Skinner v. IVaite, 155 
 Fed. 828 (1907) ; Barber v. Knozvles, 77 Ohio 81 (1907). The privilege does 
 not extend to mere volunteers. Michaels v. Hain, 78 Hun (N. Y.) 500 
 (1894).
 
 296 ACTIONS 
 
 and there is iiothin;^ to tleterniiiie, therefore, how far it may be 
 properly extended to other cases. It is probable that there the de- 
 fendant did not depart immediately, for it is said that if he had 
 insisted on his ]irivile.c;e at once, the plaintiff might have had the 
 process served upon him legally, afterwards, before he left. In 
 this respect, it is like the case where the defendant returns into the 
 jurisdiction, jnitting himself again within reach of process, before 
 he moves; which is held to be a waiver. Massey v. DautitDi, 12 
 Wkly. Notes Cas. (Pa.) 436; Hendrlck v. Gates, t, C. P. Rep. (Pa.) 
 160." But it certainly does not apply where, as here, the defendant 
 was served on his way -to the train. 
 
 The rule is made absolute, and the serxice is set aside.* 
 
 GEORGE GRAVES v. J. D. MACFARLAND. 
 
 Supreme Court of Nebraska, 1899. 
 
 58 Ncbr. 802. 
 
 Sullivan, J.: This is an appeal by George Graves from a judg- 
 ment of the District Court of Antelope County. The facts essential 
 to an understanding of the questions presented for decision are 
 these: The appellant, who was plaintiff below, purchased of Lyman 
 Seiler, in August, 1890, a lot in the city of Lincoln subject, accord- 
 ing to the recital of the deed, to an incumbrance of $1,600. In Janu- 
 ary, 1892, the mortgagee, J. D. Macfarland, brought an action in 
 the District Court of Lancaster County to foreclose his mortgage, 
 making Seiler and Graves and wife parties defendant. Mr. and 
 Mrs. Graves resided in the city of Neligh, in Antelope County, and 
 process was sent to the sherifif of tliat county for service upon them. 
 The writ was issued on January 10 and was made returnable Janu- 
 ary 18. It was not in fact returned and filed in the office of the 
 clerk of the district court until January 23. The sheriff's certificate, 
 v^hich is dated January 16, recites that on January 15 the summons 
 
 ' W'liat is a reasonable time for departure is a question of fact to be de- 
 terminated from the evidence. Linton v. Cooper, 54 Nebr. 438 ( 1898) ; Cake v. 
 Haight, 30 Misc. (N. Y.) 386 (1900); Finncanc v. Warner, 194 N. Y. 160 
 (190Q). 
 
 * Nonresident parties and witnesses are exempt from service of process 
 while attending and departing from court. Miles v. McCiillonnK i Binney 
 (Pa.) 77 (1803) ; Grove v. Campbell, 9 Yerg. (lenn.) 7 {m2>^-))]Massev v. 
 Colville, 45 N. J. L. 119 (1883) ; Wilson v. Donaldson, 117 Ind. 356 (1888). 
 Contra (as to suitors) in Capwcll v. Sipe, 17 R. I. 475 (1891) ; Baisley v. Bais- 
 Icy, 113 Mo. 544 (1892). See generally 25 Lawyer's Reports Annotated 721. 
 As to attorneys see Greenleaf v. People, 133 N. Car. 292 (1903). As to the 
 exemption from arrest in civil cases enjo\'ed by ambassadors, members of 
 legislative bodies while in the discharge of tlieir duties, electors and persons 
 actually engaged in military service see i Troubat & Haly's Practice (Fish's 
 ed.). 246, 2>2 Cyc. 490; Merrick v. Gidding, 28 Fed. 387 (1S86), members of 
 congress; Corlies v. Holmes, 20 Wend. (N. Y.) 681 (1839), e\ectOT i_Davidson , 
 V. Barclay. 6 'i Pa. 406 (1869), militar\- service; Cameron v. Roberts, 87 Wis. 
 291 (l894Tr^"stice of the Y^ence]_Dii pnnt v Pjchnn ^ Dall. (Pa.) 321 (1805) ; 
 In re Anfryc, 3 \V. N. C. (Pa.) 188 (1876), diplomats.
 
 GRAVES V. MACFARLAND 29/ 
 
 was personally served upon Mrs. Graves and a copy left at the usual 
 place of residence of George Graves/'^ 
 
 It is contended that the summons not having been returned 
 within the time limited by the statute, the court acquired no juris- 
 diction over the person of the appellant, and that the jttdgment ren- 
 dered against him was therefore void. We think counsel is right 
 in asserting that the file-mark of the clerk is the proper and primary 
 evidence of the time when the summons was returned by the sheriff. 
 And it must, under the authorities, be conceded that the return 
 contemplated by the law includes not only the officer's certificate of 
 service, but also the delivery of the writ to the office from which 
 it issued. (Alderson, Judicial Writs & Process, sec. 184; Nelson v. 
 Cook, 19 111. 440; Cariker v. Anderson, 27 111. 358). It does not 
 follow, however, that a service which is valid when made becomes 
 a nullity because the officer fails to make due return of the writ. 
 When the summons is served the action is pending; the court has 
 jurisdiction of the parties and can not be divested of the authority 
 over them by any fault or omission of the sheriff. It is not the offi- 
 cer's return that gives the court power to hear and determine the 
 cause, but the fact of service during the life of the writ. The return 
 is, of course, the appropriate evidence of the jurisdictional fact, but 
 it is not conclusive. There is no good reason why a defendant who 
 has been duly served should complain because the court was not 
 possessed of the proof of service within the time fixed by the stat- 
 ute.*' (Smith V. Payton, 13 Kans. 362; dough v. McDonald, 18 
 Kans. 114; Miller v. Forbes, 49 Pac. Rep. [Kans.] 705.) 
 
 * Only so much of the opinion as relates to the sheriff's return is printed. 
 Judgment for the plaintiff below was reversed on other grounds. 
 
 "In Nelson v. Cook, 19 111. 440 (1858) it is said: "The indorsement of 
 the officer is one thing, and the return another. The action of the officer 
 upon the writ is not the return strictly speaking. It does not become a return, 
 or bear that character, until as the word imports, it be actually returned to 
 the office out of v/hich it issued. Being indorsed, and remaining in the hands 
 of the officer, it is under his control, and he can erase the endorsement and 
 substitute another at his pleasure. He is not concluded b}- anything he may 
 have written upon it, until it has left his possession, and has been returned 
 to the proper office. Nor is he then concluded, for, by a proper application 
 to the court, and which courts rareh^ refuse, he can alter and amend his re- 
 turn ; the courts holding him to his first responsibility in an action for false 
 return." See, also, Beall v. Shattnck, 53 Miss. 358 (1876). 
 
 Process must be returned by the officer charged v/ith executing it, certify- 
 ing in a brief statement what he did in furtherance of the command of the 
 writ. Jenkins v. McGill, 4 How. Pr. (N. Y.) 205 (1849) ; Jones v. Bihh Brick 
 Co., 120 Ga. 321, 48 S. E. 25 (1904). See, also, Mctcalf v. Gillet, 5 Conn. 400 
 (1824) ; JJ^ilson v. Grcatlwnse, 2 111. 174 (1835) ; Moore v. Miller, 16 N. J. L. 
 233 (1837); Sheldon v. Comstock, 3 R. I. 84 (1854); Hutton v. Campbell, 
 10 Lea. (Tenn.) 170 (1882) ; State v. Reed, 50 La. 170, 23 So. 333 (1898) ; 
 Alhright-Pryor Co. v. Pacific S. Co., 126 Ga. 498 (1906) ; Hemmelherger- 
 Harrison L. Co. v. Jones, 220 Mo. 190 (1909) : McGozvin v. Dickson, 182 
 Ala. 161 (1913); New York Code Civ. Proc, § 434; California Code Civ. 
 Pro. § 415. 
 
 It is proper to permit a return of service to be amended according to the 
 fact. Spencer v. Rickard, 69 W. Va. 322 (1911). Accord: First Nat. Bk. v. 
 Ellis, 27 Okla. 699 (1911); Spcare v. Stone, 193 Fed. T,y$ (1912) ; Fnrr v. 
 Bank of Fairmount, 139 Ga. 815 (1913) ; Fountain v. Detroit M. & C. R. Co., 
 210 Fed. 982 (1913) ; Ripley v. Harmony, in Maine 91 (1913).
 
 2q8 ACTIONS 
 
 TILLAIAX r. D.W'IS. 
 
 SuPKKMK Court of Geoucia, 1859. 
 
 28 Ga. 494. 
 
 Certiorari. Decision l)y Judge Allen, in Lee Superior Court, 
 ^larch term, 1859. 
 
 William J. Tillman broug;ht suit to the January term, 1858, of 
 Lee Inferior Court, against John A. Dannard and Jonathan Davis, 
 on a promissory note given for rent. Davis lived in the county of 
 Lee. and Dennard in the county of ]")ougherty. Both parties ap- 
 pear, from the entries on the original and second original declara- 
 tions, to have been regularly served. 
 
 At the July term, 1858, of said court, a verdict was rendered 
 in favor of the plaintiff, judgment duly entered up, and fi. fa. issued. 
 
 Davis afterwards m.oved to set aside said judgment, on the fol- 
 lowing grounds, to wit : 
 
 1st. That defendant Davis was, in fact, only security to the con- 
 tract on wh.ich said judgment was founded, and signed the same as 
 such. 
 
 2d. That he gave ])laintiff notice to sue the principal on said 
 note on or about the first day of January, 1858. That the suit on 
 v/hich said judgment is founded was brought against himself and 
 said principal within three months after the notice aforesaid, but 
 that said principal was never duly served with said writ ; that said 
 principal was not served until after the court passed to which the 
 writ was sued. And that, therefore, the court had no jurisdiction 
 on said suit. That Dennard was insolvent. These facts Davis of- 
 fered to prove to the court. 
 
 The court refused the motion, and Davis excepted; whereupon 
 the court also overruled the exceptions, and Davis sued out a writ 
 of certiorari. Upon the hearing of the certiorari at the March term, 
 1859, of Lee Superior Court, it was admitted that, since the hearing 
 in the inferior court, the interrogatories of C. M. Boynton, the sher- 
 iff of Dougherty County, had been taken, and that the sheriff ad- 
 mitted he had not served Dennard within the pro|)er time ; that the 
 service was., however, made before the January term, 1858, of Lee 
 Inferior Court, and by the consent of Dennard, was dated back to 
 the proper time. The court refused to act ui)on any matter not dis- 
 closed by the record from the court below, but sustained the certi- 
 orari and overruled the decision of the inferior court. 
 
 To this decision coimsel for Tillman excepted, and now assigns 
 the same for error.**^ 
 
 Lumpkin, J. : Of course, the testimony of Boynton, the Sheriff of 
 Dougherty County — taken after the case was decided in the inferior 
 court — was properly disregarded upon the hearing of the certiorari. 
 
 *a Part of the opinion of the court and the dissenting opinion are omitted. 
 By statyte in Georgia a defendant can now traverse the sheriff's return. 
 Parker v. Medlock, 117 Ga. 813, 45 S. E. 61 (1903).
 
 TILLMAN V. DAVIS 299 
 
 Had that evidence been in, it would have sustained the return of 
 Boynton, the sheriff; and we should have been saved the necessity of 
 inquiring whether the return of that officer, as it stands, can be con- 
 troverted. The case depends upon the decision of that question. 
 If Dennard was regularly served, as he appears to have been by 
 the return of the sheriff, Davis v/as concluded by the judgment. 
 
 Upon examination, it will be found that the conclusiveness of 
 the sheriff's return, both upon mesne and final process, is assumed 
 as one of the axiomatic trviths of the law, and the principle is found 
 scattered broadcast throughout the whole of the text books and re- 
 ports, both in England and in this country, except in the state of 
 Connecticut, where a contrary doctrine has obtained. 
 
 "The return of the sheriff," says Baron Comyn, "is of such high 
 regard, that generally no averment shall be admitted against it. As 
 if A be returned to be outlawed, he can not say that he was only 
 quarto or qiimto exactus. Kit., 280. If the sheriff return issues upon 
 B, it can not be averred by A to save the issues, that his name is not 
 B. 2 Rol. .462, I, 5. If the sheriff' in redisseisin returns accessi ad 
 terras, etc., it can not be assigned for error, quod non accessit. 
 Leon., 183. If coronors make a return, it can not be said that only 
 one made the return. R. Raymond, 485. If a sheriff returns scire 
 feci A. tenen' iin' mess' , A can not plead non tenet. R. Cro. Eliz., 
 872; R. Mod. 10. (Com. Dig. Title Return G. 6 vol., 242-243.) 
 Sheriffs' return not traversable ; but you may have an action for a 
 false return. Loft., 631 ; Rex v. Elkins, 4 Burr. 2127 ; Barr v. Satch- 
 zvell, 2 Str. 813. 
 
 But I will not multiply citations upon this point. I have investi- 
 gated carefully in Brooke and Viner's Abridgements, and traced 
 the question to its fountain head, and find it well settled that by the 
 common law no averment will lie against the sheriff's return, and one 
 reason assigned amongst others, is that he is a sworn officer, to whom 
 the law gives credit. Jenk. 143, pi. 98. There are some exceptions 
 to the general rule in favor of life and liberty, and som.e modifica- 
 tions made by several ancient statutes. But they are slight and re- 
 stricted to returns upon particular subjects, and do not affect the 
 present case. It is also true, that while the return of the sheriff, in 
 certain cases, will not be allowed to be controverted in the same 
 action, an averment may be made contrary to the same return in 
 another action. 
 
 I lay down another proposition, which seems to be uniform and 
 incontrovertible : that a return of the sheriff which is definitive to 
 the trial of the thing returned, as the return of the sheriff upon his 
 writs, can not be traversed. Brooke's Abr. Title Averment ; Viner's 
 Abr. Title Return, vol. XIX. 
 
 All the American authorities are collected in note (d.) appendix 
 to vol. 2 Cowen & Hill's notes to Phillips on Ev., p. 794, and, as I 
 stated in the beginning of this opinion, with a solitary exception, 
 there is an unbroken array of American cases in favor of die well- 
 established English rule, that as between the parties to the process
 
 300 ACTIONS 
 
 or their pri\ ies,' the return of the slieriff is usually conclusive, and 
 not liable to collateral impeachment, except for fraud or collusion ; 
 a rule so necessary to secure the rights of the jiarties, and to give 
 \alidity ami effect to the acts of ministerial officers, leaving the 
 persons injured to their redress liy an action for a false return; and 
 that this rule concluding the ])artics, api)lied to mesne process, by 
 which the parties are brought into court. 
 
 T will not consume time in reviewing the Connecticut cases. 
 Suffice it to say that in li'atson and others v. IVatson (6 Conn. 
 Rep. 334). Ch. J. Hosmer, who delivered the meagre opinion of the 
 court, says, distinctly, that it is a general rule of the English common 
 law, that the return of the sheriff is conclusive, both as it respects 
 mesne and final process, there being no distinction made between 
 the two in Westminster Hall. Rut that in Connecticut a contrary 
 doctrine had prevailed ; and that he was unable to assign the precise 
 reason for this dei)arture from the English common law. 
 
 This concession is sufficient to satisfy a judge in Georgia what 
 his duty is. 
 
 It may be supposed that to make the returns of an officer, prima 
 facie evidence of their truth would be a sufficient security for the 
 riglits of the people; and to prevent the perpetration of irreparable 
 wrong. But that is a matter for the legislature and not for the 
 courts. 
 
 By the act of 1S40 (Pamphlet, p. 4; Hotchkiss, 527), returns 
 made under oath, by virtue of any rule or order of the court, are 
 traversable.^ But the legislature has not seen fit to extend the right 
 to the ordinary returns made by a shcrift' on process in his hands. 
 Where they stop, we must stop." 
 
 .Stephens, J., concurred. Benning, J., dissents. 
 
 ' Strangers are not concluded by the return. United States v. McHie, 194 
 Fed. 894 (1912) ; Hearsley v. Bradbury, 9 Mass. 95 (1812) ; Brown v. Davis, 
 9 N. H. 76 (1837); Phillips v. Elu'e'll, 14 Ohio St. 240, 84 Am. Dec. 373 
 (1863) ; Hutton v. Campbell, 10 Lea. (Tenn.) 170 (1882). 
 
 "A return of personal service made by a private person is open to con- 
 tradiction. O'Connor v. Felix, 147 N. Y. 614, 42 N. E. 269 (1895) ; Campbell 
 V. Wayne Circuit Judge, III Mich. 247, 69 N. W. 511 (1896) ; Peck v. Cham- 
 bers, 44 W. Va. 270, 28 S. E. 706 (1897) ; Marin v. Potter, 15 N. Dak. 284, 107 
 N. W. 970 (1906). 
 
 "Accord: Slayion v. Inhabitants of Chester, 4 Mass. 478 (1808); Bean 
 V. Parker, 17 Mass. 591 (1822); Case v. Redfield, 7 Wend. (N. Y.) 398 
 (1831) ; Goubot V. DeCrony, 2 Dowl. P. C. 86 (1833) ; ^ion Church v . St. 
 Peter ' s Clmrrh ^ :; W. & S. 2 1=; (1843) ; Barrett v. Copelancl, i« Vt. 67, 44 Am? 
 Dec. 362 (1844) ; Castner v. Styer, 23 N. J. L. 236 (1852) ; Nichols v. Nichols, 
 96 Ind. 433 (1884) ; Insurance Co. v. Webb, 106 Tenn. 191 (1900) ; Neivcomb 
 V. New York Central, etc., R. Co., 182 Mo. 687, 81 S. W. 1069 (1904) ; Mayer- 
 son V. Cohen, 123 App. Div. (N. Y.) 646 (1908) ; Strobel v. Clark, 128 Mo. 
 .\pp. 48 (1907); Miedreich v. Lauenstein, 172 Ind. 140 (1908), affirmed: 
 232 U. S. 236; Higham v. Iowa S. T. Assn., 183 Fed. 845 (1911) ; Fraternal 
 Bankers v. Wire, 150 Mo. App. 189 (1910) ; Sutherland v. People's Bank, 
 III Va. 515 (1910) ; Kimsey v. Macon Lumber Co., 136 Ga. 369 (1911); 
 Hntovilsky v. Little Rus.sian, etc., Church, 78 N. J. Eq. 576 (1911) ; F/ar- 
 cus Oak L. Co. V. Heasley, 50 Pa . Super. Ct. 127 (1912). The modem 
 tendency, however, is to permit the return to be attacked by affidavit, motion 
 or other proceeding to set it aside, hence there is great confusion in the cases.
 
 TOWNER V. PHELPS 3OI 
 
 TOWNER V. PHELPS. 
 
 Supreme Court of Connecticut, 1791. 
 
 I Root's {Conn.) 250. 
 
 Upon a writ of error, adjudged — That a writ which has been 
 served and returned can not have an existence as a writ, for an- 
 other purpose, by being taken out of the files and served again/" 
 
 X 
 
 (b) Appearance. 
 CARRIE M. CHILDERS v. ADOLPH J. LAHANN. 
 
 Supreme Court of New AIexico, 1914. 
 18 N. Mex. 487. 
 
 Motion to dismiss appeal. ^^ 
 
 Roberts, C. J. : Aj^pellant admits that no citation was issued or 
 served u pon a pp.ellee ; That "the return day was October 25, 1913. 
 But 'sHe' resists the motion to dismiss the appeal, on the ground that 
 appellee has entered a general appearance in the case in this court. 
 The Issuance and service of citation is waived by the vokmtary 
 appearance of the appellee or defendant in error. Daily v. Foster, 
 128 Pac. 71. The claim of appellant is not based upon any formal 
 entry, plea, m.otion, or act of the appellee shov\"n by the records of 
 
 See 32 Cyc. 516; 18 Enc. PI. & Pr. 969; Butts v. Francis, 4 Conn. 424 (1822) ; 
 Owens V. Ranstead, 22 111. 161 (1869) ; Barbour v. Nezvkirk, 83 Kv. 529 
 (1886); Crosby v. Farmer, 39 Minn. 305 (1888) ; Park Bros. & Co.'y. Qjl 
 City B . IV., 204. Pa. d '^T,. S4 Atl. 334 (1903) ; Nicholas Allegrette v. Stubbert, 
 "126 111. App. 171 (I9c6) ; Westman v. Carlson, 86 Nebr. 847 (1910) ; Pinnacle 
 Gold Min. Co. v. Popst, 54 Colo. 451 (1913). 
 
 ^"A writ when returned served is functus officio. Gorman v. Steed, i W. 
 Va. I (1864) ; Carrigan v. Washburn, 9 N. Y. Supp. 541 (1889) ; Mansur v. 
 Insurance Co., 136 Mo. App. 726 (1909). Contra: Ridcnburg v. Sandlin, 14 
 Idaho 472 (1908), where it is said: "The contention that a snmmons once 
 returned and filed is functus officio and can not be given life and effect by an 
 order of court is not well founded. As soon as it becomes a file of the court, 
 it is beyond the power of any party to the action to withdraw it without an 
 order of court to that effect ; but the court itself has control over the rec- 
 ords and files in a case as well as over its own process, and it might order a 
 summons already issued and on file to be withdrawn for service, or order an 
 entirely new summons as ju.stice and the e.xigencies of the case demand." 
 
 In most jurisdictions that follow the common law, when a summons is 
 returned not served, an alias writ may issue, and if that be similarly re- 
 turned, it may be followed by pluries writs until service is made upon the de- 
 fendants. Danville & IV. R. Co. v. Brozvn, 90 Va. 340 (1893) ; Oil & Gas 
 IV. Co. v. Gartland, 58 W. Va. 267 (1905) ; Berkman v. Weisinger, 50 Misc. 
 (N. Y.) 515 (1906) ; Bovaird v Ferguson 21^ Pa. 235 (1906). California 
 otherwise, Dupuy v. Shear, 29 C al. 238 (1865), see Coffin v. Bell, 22 Nev. 
 169 (1894). 
 
 "Part of the oi)inion is omitted.
 
 ^OJ ACTIONS 
 
 this court, but is founded solely upon a letter received by her attor- 
 ney from one of appellee's attorneys, and the reply of her said at- 
 torney thereto. The letters are as follows: 
 
 "El Paso, Texas, Nov. 2, 1913. 
 •']•:. W. Dobson, 
 
 "Albuquerque. N. M. 
 "Dear Mr. Dobson: 
 
 "Your letter of the 28th ult. was forwarded to me here, and I 
 wish to thank you for the offer to extend courtesies in case of Cliil- 
 ders V. Lahann. 
 
 "If it is not asking too much, I would like to have the case con- 
 tinued to the January term, when I hope to be able to attend to it. 
 I am here under treatment and improxing slowly, but am unfit for 
 work. By extending the time for hearing of the case as indicated, 
 you will greatly oblige. Mr. Hudspeth will sign a stipulation if one 
 is necessary. 
 
 "Yours truly, 
 
 "John Y. Hewitt." 
 
 To which appellant's attorney replied as follows: 
 
 "John Y. Hewitt, 
 
 "El Paso, Texas. 
 "My Dear Judge : 
 
 "Yours of the 2d inst. received. I told Mr. Hudspeth that I 
 would grant any reasonable time for you to file briefs in the case 
 of Childers v. Lahann, and so far as I am concerned the case can 
 be taken up at the January term. After your reply brief is filed it 
 may be that I will want to answer the same, although at the present 
 time I think I have covered all points that I could. 
 
 "I v>-ill sign any stipulation that you or Mr. Hudspeth may de- 
 sire, although this letter is sufficient and I assure you no advantage 
 will be taken and you will be granted the time that you desire. 
 
 "Yours truly, 
 
 "E. W. Dobson." 
 
 Xo application for a continuance was made to the court by ap- 
 pellee, and no entry of any kind was made by the court in the case 
 in this regard. On November 26, the motion to dismiss was filed. 
 
 The solution of the question depends upon the effect of the let- 
 ters quoted, for, if they constituted an appearance by appellee in this 
 court, the motion to dismiss is not well taken. 
 
 Eouvier's Law Dictionary defines appearance, in practice, as fol- 
 lows : "A coming into court as a party to a suit, whether as plaintiff 
 or defendant. The formal proceeding by which a defendant sub- 
 mits himself to the jurisdiction of the court." 
 
 It could hardly be contended that the letters v.hich passed be- 
 tween the attorneys would constitute an appearance, within the defi-
 
 CHILDERS V. LAHANN 303 
 
 nition of the term above quoted. There was no "coming into court," 
 for no action by the court was asked by appellee. No paper, motion or 
 pleading of any kind was filed by appellee, nor was any relief asked 
 of the court. Had appellee applied to the court for a continuance, 
 such act would have constituted an appearance and the court would 
 have jurisdiction over his person. And the question, as to vv^hether a 
 party had appeared and submitted himself voluntarily to the juris- 
 diction of the court, should be tried by the record and not by other 
 evidence. Were this not true the door might be opened to fraud 
 and imposition. As to the acts necessary to constitute an appearance 
 and how established, the Supreme Court of Indiana say : "To con- 
 stitute an appearance so as to give jurisdiction over the person of a " 
 defeiidant in this slate;iTierFmusrbe some formal entry, plea, mo- 
 tion, or act, (^r word sj'ol.cn in said cause in court \yhich should be 
 "sbo-.; n liy llie record." Kirkpatrick, etc., Co. v. Central Electric Co., 
 150 Tn.I. O^ty. 
 
 In the case of Scott et al. v. Hull et al, 14 Ind. 136, the defend- 
 ants sought to remove the cause to the Federal Court, and the ques- 
 tion arose as to whether they had not voluntarily appeared in the 
 case in the state court, by appearing before an officer upon the tak- 
 ing of depositions by plaintiffs, and also by defendants taking depo- 
 sitions, to be used upon the trial of said cause. The court say: 
 "There should be some formal entry, or plea, or motion, or official 
 act (3 Blackf. 266) to constitute an appearance; and this should be 
 of record, and tried by the record. 6 Com. Dig. 8; Kanoitse v Mar- 
 tin, 15 How. (U. S.) 198." 
 
 The Supreme Court of West Virginia, in the case of Groves v. 
 County Court, 42 W. Va. 587, say: "Appearance is the first act of 
 the defendant in court (i Tidd, Prac. 262; 6 Com. Dig. tit. 'Pleader', 
 B. I, p. 6) and the appearance of the defendant is triable by the rec- 
 ord which is a verity (i Co. Litt. 260; i Chit. PI. 512)." See also 
 Colhy V. Knapp, 13 N. H. 175. 
 
 In vol. 2, Standard Encyc. Proc. 491, the rule is stated as follows : 
 "There should be some formal entry of record, 'or plea, motion, or 
 official act, to constitute an appearance', and this should be tried 
 by the record and not by other evidence." 
 
 In this case, the fact that the court would be required to resort 
 to evidence outside of the record, in order to ascertain that appellee 
 had appeared, renders appellant's contention untenable. 
 
 The court has jurisdiction of the cause, but not of the appellee, 
 because of the failure of serve citation. All that remains to give the 
 court jurisdiction over both the cause and the parties,, is the issu- 
 ance and service of citation. We are of the opinion that the abov^ 
 facts, all of which are admitted, furnish good cause for a denial of 
 the motion to dismiss the appeal, and warrant the court in permitting 
 appellant to sue out and serve citation on appellee. The court is^-_ 
 always reluctant to dispose of any cause except upon the merits 
 of the question involved, unless required to do so by plain and ex- 
 plicit provisions of the statute, rule of court, or established pro- 
 cedure.
 
 304 ACTIONS 
 
 luir the reasons stated, the motion to dismiss the appeal will be 
 denied, at this time, and appellant will be j^iven the ric^ht to sue out 
 and serve citation, antl it is so onlered.'-' 
 
 IIARRY E. HENRY r. WALTER L. SriTLILR. 
 
 Slpkkmk Couut of Elokioa, 1914. 
 
 67 7-7(1. 146" 
 
 X 
 
 SiiACKLKFORn, C. J.: Walter L. Spitlcr instituted an action of 
 replevin against Ilarry E. Henry to recover the i)ossessTon" of "cer- 
 tain described mules. The property was redelivered to the defendant 
 upon the filing of a forthcoming bond in accordance with the statu- 
 "fory provisions. On the 7th day of April, 1913, the return day of 
 ,the writ, the defendant entered his special appearance "for the pur- 
 /pose of moving to quash the return to the writ of replevin" and tiled 
 the f ollowinsr motion : 
 
 '"See, further, Humphreys v. Humphreys, Morr. (Iowa) 359 (1844); 
 Scott V. Hull, 14 Ind. 136 (i860); Byrne v. Jeffries, 38 Miss. 533 (i860); 
 Crary v. Barber, I Colo. 172 (1869) ; Rhoades v. Delaney, 50 Ind. 468 (1875) ; 
 Douglas v. Haherstro, 8 Abb. N. C. (N. Y.) 230, 50 How. Pr. 276 (1880) ; 
 Ridyzi.'ay v. Horner, 55 N. J. L. 84, 25 Atl. 386 (1892) ; Harrison v. Morton, 
 87 Md.671 (40 Atl. 897) (1898); Bank v. Prescott, 60 Kans. 490 (1899); 
 Kirkpatrick C. Co. v. Central E. Co., 159 Ind. 639, 65 N. E. 913 (1902). 
 
 A general appearance is an unqualified submission to the jurisdiction of 
 the court and does not necessarily involve the physical presence of either 
 the party or his attorney. It may be in writing. Russell v. Craig. 10 Colo. 
 App. 428, 51 Pac. 1017 (1897) ; Thornhill v. Hargrcavcs, 76 Nebr. 582 (1906), 
 or by acts showing unequivocal recognition that the case is before the court. 
 Long V. A'CU'liouse, 37 Ohio 348, 49 N. E. 79 (1897) ; People v. Cowan, 146 
 N. Y. 348, 41 N. E. 26 (1895). 
 
 A special appearance is one made for the sole purpose of objecting to 
 the jurisdiction of the court over the person of the defendant. A'ye v. Lis- 
 comhe, 21 Pick. (Mass.) 263 (1838) ; Turner j y. f-nrj^ j^^ 12 Pa. Super, Ct. 284 
 (1899) ; Hilton v. Consumers Co., 103 Va. 255(1904) ; Allen F. Co. v. South- 
 ern R. Co., 145 N. Car. 37 (1907); Dixon v. Wells, L. R. (1890) 25 Q. B. 
 249; State V. Tolan, 2,3, N. J. L. 195 (1868) ; Scacoast L. Co. v. R. J. '& B. F. 
 Camp L. Co., 63 Fla. 604 (1912). It has been held that if a defendant relies 
 on want of personal jurisdiction his objection must be confined to a denial of 
 jurisdiction over his person and must not include a denial of jurisdiction of 
 the subject-matter of the action. Smith v. Hoover, 39 Ohio 249 (1883) ; Fitz- 
 gerald & Mallory Con. Co. v. Fitzgerald, 127 U. S. 98, 34 L. ed. 608 (1890) ; 
 Nicholcs V. People, 165 111. 502, 46 N. E. 237 (1897) ; Pcrrine v. Knights Tem- 
 plar's L. I. Co., 71 Xebr. 267, 98 N. W. 841, loi N. W. 1017 (1904) ; Lillie 
 V. Modern IVoodmen, 89 Xebr. i (1914) ; Western L. Co. v. Butte, etc., Mining 
 Co., 210 U. S. 368 (1907). Contra: Kelley v. Smith, 196 Fed. 466 (1912) ; 
 Spencer v. Court of Honor, 120 Minn. 422 (1913). 
 
 Where an attorney appears, he is presumed to act by authority of the 
 party he represents; but if his authority is questioned, the court will require 
 proof of his employment. Bayley v. Buckland, i Exch. i (1847) ; Kepley v. 
 Irwin, 14 Xebr. 300, 15 X. W. 719 (1883) ; Ferris v. Commercial Nat. Bank, 
 158 111. 237 (1895) ; Bonnifield v. Thorp, 71 Fed. 924 (i8tj6) ; Danville, etc. . 
 P. Co. V. Rhodes, 18 Pa. 157, 36 Atl. 648 (1897) ; 2 Enc. PI. & Pr. 68i;~23 
 Cyc. 1077. 
 
 " Part only of the opinion is printed.
 
 HENRY V. SPITLER 305 
 
 "The defendant, Harry E. Henry, by his attorneys for the pur- 
 pose hereinabove stated, and under his special appearance herein 
 filed, respectfully moves the court to quash the return of the sheriff 
 to the writ of replevin issued in the above-stated cause, upon the 
 following grounds and for the following reasons: 
 
 ( 1 ) It affirmatively appears from said return to the writ of re- 
 plevin that no eft'ectual and valid service of the same has been made. 
 
 (2) It affirmatively appears from said return that this defendant 
 has not been summoned to appear in said cause by proper and ef- 
 fectual service of process in the manner required by law. 
 
 (3) It affirmatively appears from, said return that this court 
 has never acquired jurisdiction of the person of this defendant. 
 
 (4) And for other good and sufficient reasons apparent upon the 
 face of the return to the said writ of replevin. 
 
 Wherefore the defendant prays that the said return may be 
 quashed." 
 
 This motion was denied and the defendant allowed until the 
 August rule day in which to plead, on which day he filed his plea of 
 not gtiilty. A trial was had before a jury, which resulted in a verdict 
 in favor of the plaintiff. Upon this verdict a judgment was rendered 
 and entered against the defendant and the sureties upon his forth- 
 coming bond, which judgment the defendant has brought here for 
 review. 
 
 The first and second assignments are based upon the denial of 
 the motion "to quash and set aside the sheriff's return to the writ and 
 summons in replevin issued in said cause." It is contended by the 
 plaintiff that these assignments have been waived by the defendant 
 both by the filing of his forthcoming bond and by subsequently 
 pleading and going to trial upon the merits, so that they are not open 
 to consideration by us. While there is much conflict in the authori- 
 ties upon this point, we are of the opinion that this contention must 
 be sustained. In fact, we are committed to the doctrine that after 
 the denial of a motion to set aside the service of the process by v;hich 
 the suit was commenced because there was no legal service upon the 
 defendant, the defendant waives this point by pleading issuably to 
 the declarations and going to trial upon the merits. Florida Rail- 
 road Co. v. Gensler, 14 Fla. 122. It is true that subsequent to this 
 decision the point was again before this court and was left tmde- 
 termined because only two members thereof participated therein. 
 Mr. Chief Justice Maxwell held, as is set forth in the first headnote 
 in StepJiens v. Bradley, 24 Fla. 201, 3 South Rep. 415: "If after 
 special appearance to set aside service of summons, the court re- 
 fusing to set it aside, the defendant appears to defend the action, 
 he will be considered to have waived the defect of service." Mr. 
 Justice Raney refused to concur therein for the reasons stated in his 
 opinion. We think that Mr. Chief Justice Maxwell was right, and 
 hereby copy with approval the following excerpt from his opinion : 
 
 "The first error assigned is against the action of the court in 
 overruling the motion 'to cfuash the writ and in sustaining the serv- 
 
 20 — Civ. Proc.
 
 ^o6 
 
 ACTIONS 
 
 ice' \\"e find in the rcct)r(l no motion to (jnash the writ, but only to 
 'quash the service of the writ', antl as to that it is needless to specify 
 the fjrounds of the motion, as the error, if there was one, was cured 
 under the rule adojitcd in this state, by the conduct of the defend- 
 ants in afterwards appearing to demur and file pleas. Florida Rail- 
 road Conif^any v. Cetislcr cf al, 14 Fla. 123. The statute which au- 
 thorizes a party to plead over after his demurrer has been overruled, 
 without bcinj:: deemed to have waived the benefit of his demurrer 
 on appeal to this court, has no appHcation to a case where a party, 
 notwithstanding defective process or defective service, of process, 
 waives his objections, whether overruled by the court or not, by 
 apjiearing generally to defend the suit." 
 
 We are strengthened in the correctness of this conclusion by the 
 vigorous and well reasoned opinion rendered by Mr. Justice Mar- 
 shall in Corbett v. Physicians' Casualty Association, 135 Wis. 505, 
 115 N. \\\ Rep. 365, 16 L. R. A. (N. S.) 177. The authorities upon 
 each side of the question will be found collected in the case note 
 to this opinion on page 155 of 16 L. R. A. (N. S.). One of the 
 latest and most strongly reasoned opinions on the other side of the 
 question is that of Mr. Justice Poffenbarger in Fisher v. Crowley, 
 57 W. Va. 312, 50 S. E. Rep. 422, 4 Ann. Cas. 282, the effect of 
 which is weakened, however, by the forcible dissenting opinion ren- 
 dered by Mr. Justice Sanders. A valuable case note will also be 
 found on ])age 290 of 4 Ann. Cas. Even if we should hold that the 
 court erred in the denial of the motion, as to which we express no 
 opinion, and should for that reason reverse the judgment, the de- 
 fendant would then be in court. See Busard v. Houston, 65 Fla. 
 479, 62 South. Rej). 483, follov^dng prior decisions in holding that 
 "A writ of error from what purports to be a final judgment of a 
 circuit court operates as a general ai)i)earance in the case of parties 
 taking the writ." Having reached this conclusion, it becomes un- 
 necessary to determine whether or not the filing of a forthcoming 
 bond by the defendant in an action of replevin constitutes a general 
 appearance. Upon this point also the authorities are in conflict. See 
 Fowler v. Fowler, 15 Okla. 529, 82 Pac. Rep. 923 ; Cheatham v. Mor- 
 rison, 37 S. C. 187, 15 S. E. Rep. 924; Morrow v. Nowell-Shapleigh 
 Hardware Co., 165 Ala. 331, 51 South. Rep. 766. 
 Affirmed." 
 
 "Accord: Ltimpley v. Beavers, 25 Ala. 534 (1854) ; Pry v. Hannibal R. 
 Co., 73 Mo. 123 (1880) ; Lycoming F S Co. v. Storrs, 97 P a. 354 (1881); 
 Dailey v. Kennedy, 64 Mich. 208, 31 IS. vv. 125 ( i«»7) ; :iealy v. Cat. Lnm. 
 Co., 19 Ore. 94, 24 Pac. 197 (1890) ; Ruby C. M. Co. v. Gurley, 17 Colo. 199, 
 29 Pac. 668 (1892) ; Thompson v. Greer, 62 Kans. 522, 64 Pac. 48 (1901) ; 
 Franklin L. I. Co. v. Hickson, 197 111. 117, 64 N. E. 248 (1902); Corbett v. 
 Casualty Assn., 135 Wis. 505 (iqo8) : Mc Cullour/h v. Railway Mail Asm.. 
 225 Pa. 118 (1909) ; Farmers L. & T. Co. v. Joseph, 86 Nebr. 256 (1910) ; 
 Scff V. Alvin, 181 III. App. 41 (19T3) ; Woodhouse v. Nelson Land Co.-, 91 
 Kans. 823 (1914). Contra: Kent v. Il'est, 50 Cal. 185 (1875); Walling v. 
 Peers, 120 Mass. 548 (1876) ; Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237 
 (1878) ; Southern P. R. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942 (1892) ; 
 Baird V. Heifer, 12 App. Div. (N. Y.) 23, 42 N. Y. S. 484 (1896) ; Chandler v. 
 Citizens Xat. Bk., 149 Ind. 601, 49 N. E. 579 C1897) ; Graham v. O'Bryan, 120
 
 WETZEL V. COUNTY OF HANCOCK 307 
 
 K 
 
 CHARLES C. WETZEL v. COUNTY OF HANCOCK. v 
 Appellate Court of Illinol-, 1908. 
 143 ///. App. 178. 
 
 Ramsay, J. : Plaintiff in error brought suit against defendant in 
 error before a justice of the peace in Hancock County to recover 
 for services alleged to have been performed by plaintiff in error for 
 the defendant in error. Summons vv-as served upon the county board 
 and on return day George V. Helfrich, die state's attorney for said 
 county appeared on behalf of the county. Upon a trial of the cause 
 before the justice of the peace and after all the evidence upon the 
 part of plaintiff in error had been heard, the defendant in error, by 
 its attorney, entered a motion to dismiss the case for want of juris- 
 diction upon the part of the justice of the peace. This motion the 
 court overruled and rendered judgment in favor of plaintiff in error 
 in the sum of $141 and costs. An appeal u'as prayed by defendant in 
 error to the circuit court of said county, which was allowed without 
 bond. 
 
 In the circuit court plaintiff' in error made a motion to dismiss 
 the appeal for want of an appeal bond, and defendant in error re- 
 newed its motion made before the justice of the peace to dismiss the 
 suit for want of jurisdiction. The trial court denied the former 
 motion and allowed the latter and dismissed the suit for want of 
 jurisdiction of subject-matter. Exception was taken of the action 
 of the court and the case brought to this court upon a writ of error. ^"^ 
 
 Plaintiff' in error next contends that the justice of the peace had 
 jurisdiction of the subject-matter involved and that the trial court 
 erred in dismissing the suit. Section 31 of chapter 34 of the Revised 
 Statutes provides that : "All actions, local or transitory, against any 
 county may be commenced and prosecuted to final judgment in the 
 circuit court or any court of general jurisdiction in the county 
 against which the action is brought." The word "may" in this sec- 
 tion has been held by our Supreme Court to mean "must." Randolpii 
 County v. Ralls, 18 111. 29. 
 
 Since, under said section 31 above quoted, all suits against coun- 
 ties must be brought in the circuit court or a court of general juris- 
 diction in the county, it follov.'S as a matter of course that a justice 
 of the peace has no jurisdiction of the subject-matter in a suit in 
 
 N. Car. 463, 27 S. E. 122 (1897) ; fisher v. Crowley, 57 Ind. 312, 50 S. E. 422 
 (1905). See also, Gahrn v. Wallace, 206 Mass. 39 (1910) ; Meyers v. American 
 L. Co., 201 N. Y. 163 (1911) ; Franklyn v. Taylor H. Co., 68 N. J. L. 113 
 (1902) ; Big p'ein Coal Co. v. Read, 229 U. S. 31 (1913). For England see 
 Keymer v. Rcddy, L. R. (1912) i K. B. 215. 
 
 A special appearance without more does not, as a rule, give jurisdiction 
 of the person. 3 Cyc. 527 and the cases there cited. In Iowa, Kentucky and 
 Texas by statute a special appearance is an appearance for all purposes. See 
 York V. Texas, 137 U. S. 13, 34 L. ed. 604 (1890) ; Maysville R. Co. v. Ball, 
 108, 241, 21 Ky. L. 1693, 56 S. W. 188 (1900) ; Teller v. Equitable M. Assn., 
 108 Iowa 17, 78 N. W. 674 (1899). 
 
 ^'■Part of the opinion dealing with another point is omitted.
 
 3a^ ACTIONS 
 
 which a counl}- is a dofciidant, aiul as the justice of tlie peace in the 
 case at bar haii no jurisdiction of the subject-matter it could not be 
 given him by an appearance of the defendant, nor even by its con- 
 sent. Lcii/li V. Masou, i Scam. 249; Bccsnioi v. City of Peoria, 16 
 III. 488; ll'iUianis v. /ilanhcus/iif', 12 111. I2T ; HigJnvay Coiiimission- 
 i-rs V. S)nit/i, 217 111. 260. 
 
 In Peak v. The People, 71 111. 278, the court say that "consent 
 of the parties can not confer jurisdiction u\nm a court in which the 
 law has not vested it." 
 
 The justice of the peace had no jurisdiction of the subject- 
 matter and the circuit court could, upon an appeal, acquire no juris- 
 diction to try the case. Dodge v. 77/1^ People, 113 111. 496; Nigh v. 
 Do7rl, 84 111. App. 228. 
 
 Plaintiff in error cites many cases in su])port of his contention 
 that an appearance by appellee can be held to give the court juris- 
 diction, but an examination of those cases shows that the jurisdic- 
 tion there discussed was a jurisdiction of the person and not a juris- 
 diction of the subject-matter. 
 
 Where a court h.as jurisdiction of the subject-matter a party 
 mav confer jurisdiction of his person by an entry of api)carance, 
 but when the court has no power to hear and determine the subject- 
 matter involved, the question of jurisdiction is not waived by an 
 appearance, but may be suggested at any time and in any manner 
 that properly calls the attention of the court to that fact. Nigh v. 
 Dorel, 84 111. App. 228; Tozvn of Audubon v. Hand, 223 111. 367. 
 
 The action of the trial court in dismissing the suit was proper 
 and the judgment is accordingly affirmed.^'' 
 
 ""Appearance never confers jurisdiction, where the subject-matter is not 
 within the jurisdiction of the court." Per Adams, C. J., in Hynds v. Fay, 70 
 Iowa 433, 30 X. W. 683 (1886). Accord: Lozv v. Rice, 8 Johns. (N. Y.) 409 
 (1811); Perkins v. Perkins, 7 Conn. 558, 18 Am. Dec. 120 (1829); Rhode 
 Island V. Massachusetts, 12 Pet. (N. S.) 657, 9 L. ed. 1233 (1838); Osgood 
 V. Thurston, 23 Pick. (Mass.) no (1839); Brozvn v. Webber, 60 Mass. 560 
 (1850); Broicn Bros. & Co. v. Bank of Mississippi, 31 Miss. 454 (1856); 
 Ind. & C. R. Co. V. Rcnner, 17 Ind. 135 (1861) ; White v. Hampton, 14 Iowa 
 66 (1862) ; Rahilly v. Lane, 15 Minn. 447 (1870) ; Wheelock v. Lee, 74 N. Y. 
 495 (1878) ; Pine Saiv Logs v. Sias, 43 Mich. 356, 5 N. W. 414 (1880) ; Prvin 
 V. Oregon R. Co., 62 How. Pr. (N. Y.) 490 (1882) ; The Monte A, 12 Fed. 331 
 (1882J ; Sunier v. Miller, 105 Ind. 393, 4 N. E. 867 (1885) ; The Norma, 32 
 Fed. 411 (1887) ; The Berkeley, 58 Fed. 920 (1893) ; ■'^tate v. Manitowoc, 92 
 Wis. 546, 66 N. W. 702 (1896) ; Butterick v. Richardson, 39 Ore. 246, 64 Pac. 
 390 (\qoi) -.lin ct lis h v. English i() Pa. Super. Ct. 586 (1902); Nixon v. 
 Piedmont hfuflns. Co., 74 S. Car. 438 (1906); Murphy v. People, 221 111. 
 127 (1906) ; Riley v. Southern R. Co., 81 S. Car. 387 (1908) ; West Cove G. 
 Co. V. Bartlev, 105 Maine 293 (1909) ; Rcid v. Reid, 72 Misc. (N. Y.) 214 
 (IQII): L eu.'i.<;bur(i Bridge Co . v. UnioJi Cnutity, etc,.. 232 Pa. 255 (1911); 
 Wolf V. McGaugh, 175 Ala. 299 (1912) ; St. Louis v. Glasgow, 254 Mo. 262 
 0913)-
 
 r 
 
 KING ■:/. WILMINGTON, ETC., RY. CO. 309 
 
 (c) Statement of Plaintiff's Claim. 
 
 KING V. WILMINGTON AND NEW CASTLE ELECTRIC 
 RAILWAY COMPANY. 
 
 Superior Court of Delaware, 1898. 
 I Pennezv. (Del.) 452. 
 
 Superior Court, New Castle County, November Term, 1898. 
 
 Lore, C. J. : The plaintiff's declaration contains four counts for 
 injuries, alleged to have been received by him, by having been thrown 
 from one of the defendant's electric railroad cars, through the care- 
 lessness and negligence of the defendant. 
 
 The defendant demurs specially to each of the four counts of 
 the plaintiff's declaration.^" 
 
 The substance of the demurrer is, that the plaintiff has not setl 
 forth in his declaration the facts of his claim with sufficient certainty 
 to ay)piise tlie defendant of what is intended to be proved. 
 
 The rule of pleading in cases of this character is quite clear. The 
 plaintiff must set forth in his declaration the facts of his claim, with 
 such certainty as reasonably to inform the defendant what is pro- 
 posed to be proved in the case; so that the defendant may have a 
 fair opportunity to meet such facts in preparing his defence. 
 
 It is the purpose of pleading to reasonably and fairly disclose the 
 facts of the case and not to conceal them, ir'leadings should not be 
 used as the means of concealing the facts by vague and general 
 terms. Time, place and circumstances, so far as relied on and with- 
 in the knowledge of the party, must be specified ; and that, too, with 
 reasonable fullness and fairness. Any other rule would make plead- 
 ing the medium of concealing the facts of the case, except so far as 
 might be necessary to bring it within the least possible legal cer- 
 tainty. 
 
 Chitty epitomizes the rule in this definition: "A declaration is 
 the specification in methodical and legal form of the circumstances 
 which constitute plaintiff's cause of action." 2 Chitty's Pleading 
 240. 
 
 It is not sufficient to state a mere conclusion of law. 
 
 It is not sufficient to state the result or conclusion of fact, arising 
 from circumstances of the case not set forth in the declaration. 
 
 While some Western states have adopted a different rule, yet by 
 the best considered cases, it is not sufficient merely to allege gener- 
 ally the negligence and carelessness of the defendant, without giving 
 any particulars of such negligence, even in the case of passengers. ^^ 
 
 '" Part of the opinion is omitted. 
 
 ^^ Bolin V. Southern R. Co., 65 S. Car. 222 (1902) ; Wilkins v. Standard 
 Oil Co., 70 N. J. L. 449 (1904) ; Norfolk & W. R. Co. v. Stcgall, 105 Va. 538 
 (1906) ; Cumberland T. & T. Co. v. Pierson, 170 Ind. 543 (1908). Compare: 
 Greinke v. Chicago C. R. Co., 234 111. 564 (1908) ; Gresh_ v^ IVanama ker, 221 
 Pa. 28 (1908). A general averment of negligenceTs good^^gainsT"^— grmeral 
 demurrer. Chicago v. Schtvab, 202 111. 545 (1903), but not against a special 
 demurrer, Palmer Brick Co. v. Chenall, 119 Ga. 837 (1904).
 
 3IO AlTIONS 
 
 In the statoiiioiU of facts in plcading^s, Chitty announces a rule 
 which practically solves this case. "A jj^eneral statement of facts, 
 which atiniits of ahnost any proof to sustain it is ohjcctionahle." 2 
 (.'hitty's rieadinij 231. 
 
 .\pi)lyini^ these rules to the declaration in this case, we find that 
 the second, thirtl and fourth counts are sufficient. 
 
 The second count charges the defendant with "so negligently 
 and carelessly omitting and neglecting to use pr<)])er care and cau- 
 tion in running one of its cars wherein the said plaintiff was then 
 and there a passenger for hire, that said car ran from the rail with 
 great force and violence," whereby the i)laintilT was thrown out and 
 injured. 
 
 The third charges the defendant with "negligently and carelessly 
 running two cars, upon one of which the said plaintiff was then 
 riding as a passenger for hire, upon a certain track, which was then 
 and there through the negligence and carelessness of the said de- 
 fendant improper and unsafe," whereby the car was thrown from 
 the track and the plaintitT thereby thrown to the ground and injured. 
 
 The fourth count charges the defendant with "so negligently and 
 carelessly running a certain car in wdiich the plaintiff was then and 
 there a passenger for hire and was then riding, that the said car 
 jumped from the track," thereby causing the injviry. 
 
 While the facts set forth in these three counts are meagre, yet 
 they are sufficient in law, inasmuch as they specify circumstances 
 relied on ; such as the car ran from the rail from the negligent run- 
 ning of the defendant ; the car was thrown from the track by reason 
 of an improper and unsafe track; that the car jumped from the 
 track; by reason of the defendant's careless running. These speci- 
 fications direct the defendant to the ])eculiar circumstances wdiich 
 are alleged to have caused tlie injury. 
 
 Applying the same test, the first count in the declaration is mani- 
 festly insufficient. It charges the defendant with "so negligently and 
 carelessly operating a certain electric car which it was then and 
 there running for the carriage of persons for hire, that thereby the 
 said plaintiff, who was then and there a passenger on said car, was, 
 through the negligence and carelessness of the said defendant as 
 aforesaid," thrown from the car and injured. 
 
 This averment is simply the bald statement, that the defendant 
 so negligently and carelessly operated a car that the plaintiff was 
 thrown from the car and' injured. Negligently operating a car, is a 
 very general statement, involving a multitude of possible circum- 
 stances of negligence, with not one single fact or circumstance 
 stated ; which comes within Chitty's rule of admitting almost any 
 ]»roof to sustain it. It is more in the nature of a statement of a con- 
 clusion of fact, and contains none of the elements of good pleading. 
 It gives the defendant no specific fact to meet or defend, but turns 
 him loose among a multitude of ])ossible causes of negligence com- 
 ing within the term negligently operating a car. 
 
 The plaintiff justifies in part that the allegation of negligence is 
 that contained in the form given in 2 Chitty 650. Examination shows
 
 MOORE V. IIOBBS 3II 
 
 that this count is in marked contrast with the s])ecific statement of 
 fact contained in that form. 
 
 We do not mean to say that the plaintiff is always bound to set 
 forth facts or circumstances, the knowledge of which is more prop- 
 erly or peculiarly in the opposite party, or to detail the circumstances 
 minutely ; but that such circumstances, as he does know and must 
 have contemplated and relied on when he framed his declaration, 
 and are reasonably necessary for the defendant's information, should 
 be specified with reasonable certainty. To this he is unquestionably 
 held by all the rules of good pleading. 
 
 The demurrer therefore to the first count is sustained. The 
 demurrers to the second, third and fourth counts are overruled.^" 
 
 /T 
 
 MOORE V. HOBBS. 
 
 Supreme Court of North Carolina, 1878. 
 
 79 N. Car. 535- 
 
 Civil action tried at Spring Term, 1878, of Chowan Superior 
 Court, before Furches, J. 
 The plaintiff complains : 
 
 1. That the defendants are indebted to him in the sum of $488.70 
 at eight per cent, interest per annum from the ist day of December, 
 
 1875- 
 
 2. That no part of said debt has been paid. 
 
 3. Therefore the plaintiff demands judgment against the de- 
 fendant (for said sum) and costs. 
 
 The defendants demur : 
 
 Because the facts stated in said comj-)laint are insufficient to con- 
 stitute a cause of action, in that, it does not contain a plain and con- 
 cise statement of the facts constituting the plaintiff's cause of action. 
 
 The court overruled the deniui;rg,r and offered to allow the de- 
 fendants To answer, which they refuse to do. Thereupon judgment 
 was rendered upon the complaint in favor of the plaintiff for the 
 sum demanded, and the defendants appealed. 
 
 Reade, J. : "A declaration is a specification in a methodical and 
 legal form of the circumstances which constitute the plaintiff's cause 
 of action." i Chitty, i'l. 240. Observe, that it is not to state that 
 there is a cause of action, but the "circumstances" which constitute 
 the cause of action. "The general requisites or qualities of a declara- 
 
 " "The purpose of a declaration is to inform the defendant of the nature 
 of the demand made upon him. The facts must be stated with sufficient c er- 
 tainty to be understood by the defendan t, who has to answer them; by the 
 j ur>-,w no have to inquire into their truth ; and by the cot irt. which has to 
 Tender the judgment." Lane v. Scakford, 106 Va. 93 (1906). See also, 
 Beardslcy v. Sonthmayd, 14 N. T. L. 534 (1834); Read v. Smith, 83 Mass. 
 519 (1861) ; Gere v. li nger, 125 Pa. 644, 17 Atl. 511 (1889) ; ^Barr_y_^.McGni-y, 
 131 Pa. 401, ly All. 4S' (i8yy) ; Bill Posting S. Co v. Jerome, 2 7 Pa. Super. 
 Ct. 171 (1905) ; Cassidy v. Richardson, 74 i\. H. 221 (1907) ; Stone v. Pen- 
 dleton, 21 R. I. 332 (1899) ; Haines v. Rogers, 73 N. J. L. 51 (1905) ; Royal 
 Phosphate Co. v. I'an Ness, 53 Fla. 135 (1907).
 
 312 ACTICtXS 
 
 til)!! are, * * *; second, that it contain a statement of all the facts 
 necessary in point of law to sustain the action, and no more; third 
 that these circumstances be set forth with certainty and truth." i 
 Chittv, ri. 244. Observe again, that "all the facts are to be set forth. 
 If a declaration in debt be upon simple contract, the consideration 
 must be set forth with the other facts. If it be upon a specialy, the 
 sjiecialty must be set forth, and that imports a consideration. Chitty, 
 PI. 362, 363. The form of a declaration on simple contract is as 
 follows : A B, the plaintiff in this suit * * * comi)lains of C D, the 
 defendant, in this suit * * * for that, whereas the defendant on — 
 was indebted to the plaintifif in $ — for the price and value of goods 
 then sold and delivered by the plaintiff to the defendant at his re- 
 quest, etc., or for the price and value of work then done, etc., or for 
 money lent, etc. Arch, N. I\ 297. The form of a declaration on 
 specialty is as follows: A B, the plaintiff, etc., complains, etc. 
 Whereas, the defendant, etc., by his certain writing obligatory sealed 
 with his seal, and now shown to the court, etc., acknowledged him- 
 self to be held and lirmly bound unto the plaintiff in the sum of $ — , 
 etc., Arch, N. P. 304. A defect in the declaration appearing on the 
 face of it could be taken advantage of by demurrer. 
 
 It is plain therefore that under the former mode of pleading, the 
 declaration in this case is fatally defective. It states a cause of 
 action, viz., indebtedness ; but it states not one single "circumstance" 
 or "fact" constituting the cause. But then it is said, "that all the 
 forms of pleading heretofore existing are abolished." C. C. P., sec. 
 91. True, but still, all form is not abolished, for the same C. C. P., 
 sees. 91, 92, prescribes, "that the complaint shall contain a plain and 
 concise statement of the facts constituting the cause of action with- 
 out unnecessary repetition, and each material allegation shall be 
 distinctly numbered." 
 
 Observe, that in the new, as in the old form, the facts constitut- 
 ing the cause of action must be stated, w^ith this addition in the new 
 over the old, that each material fact shall be separately numbered. 
 The object of the declaration in the old forms was to inform the 
 defendant fully as to the facts, so that he might make his defense 
 both by the proper pleas and by proofs, and that the jury and the 
 court might see what they had to try and to decide. This was not a 
 matter of mere form, but of substance. And there has been no relax- 
 ation of the requisite in the new form, and no alteration from the 
 old, except to require the greater particularity of separately num- 
 bering every material fact. Why require them to be numbered if 
 they are not required to be stated? 
 
 I /There is not in this case a single fact stated to show whether the 
 'complainant is on a simple contract for goods sold and delivered, or 
 'for work and labor, or for money lent, or for any like matter, or 
 j whether it is upon a bond or other specialty, or whether it be not 
 for some alleged tort. 
 
 Reversed and remanded.'" 
 
 ^"Pomerov's Civil Remedies (4th ed.), § 411, et seq.; People v. Ryder, 
 12 X Y. 433 (1855) ; Green v. Palmer, 15 Cal. 411 (i860) ; Rogers v. Milwau- 
 kee, 13 Wis. 610 (1861); Cline v. Cline, 3 Ore. 355 (1871); H^iH^ v. IVills,
 
 PEOPLES BANK V. NICKERSON 313 
 
 p PEOPLES NATIONAL BANK v. NICKERSON. 
 
 Supreme Judicial Court of Maine, 1910. 
 106 Maine 502. 
 
 Real action to recover several tracts of land in Pittsfield, Som- 
 erset county. At the return term of the writ, the defendant filed 
 a special demurrer to the declaration. The presiding justice pro 
 forma overruled the demurrer and the defendant excepted. 
 
 The declaration in the plaintiff's writ is as follows : 
 
 "In a plea of land wherein the plaintiff demands of the defend- 
 ant a lot of land situated in said Pittsfield and bounded and de- 
 scribed as follows, to wit: (Description omitted in this report.) 
 
 "Also another lot situated in said Pittsfield and bounded and 
 described as follows, to v/it: (Description omitted in tliis report.) 
 
 "Also another lot situated in said Pittsfield and bounded as fol- 
 lows, to wit: (Description omitted in this report.) 
 
 "Also another lot of land situate in said Pittsfield and bounded 
 and described as follows, to wit : (Description omitted in this report.) 
 
 "Whereof the defendant was seized in fee simple within twenty 
 years last past and whereof the defendant within said time unjustly 
 and without judgment of law disseized the demandant and still un- 
 j ustly w ithholds said premises from it and the demandant further 
 avers that the defendant lias "been in possession of said premises 
 since'lhe nth day of May, 1908, receiving the rents and profits 
 thereof during all that time which the demandant avers are reason- 
 ably worth fifteen dollars ($15.00) per month which it claims to 
 recover in this action." 
 
 King, J.: The sole cjuestion presented in this case is whether a- 
 d eclaration in a writ of entry containing in one count several distinct' 
 tra cts of land is bad- for dupJicitv. ( 
 
 " Duplicity in a declarat ion consists in joining in one and the 
 same count, different grounds of action, of different natures, or of 
 
 same nature, to entorce only a single right of recoxery." Gould 
 )n Pleading (5th ed.), page 205, sec. 99.-^ 
 
 34 Ind. 106 (1870) ; LouxsvxUe & P. C. Co. v. Murphy, 9 Bush (Ky.) 522 
 (1872) ; Yorn v. Bracken, 153 Ind. 492 (1899) ; Phelan v. Vestner, 125 Ga. 
 825 (1906); Kiblinger Co. v. Sank Bank, 131 Wis. 595 (1907); Pennington 
 V. GiUaspic, 63 W. Va. 541 (1908) ; Levering v. ll'ehb P. Co., 106 Minn. 62 
 (1Q08) ; Smyihc v. Cleary, 127 App. Div. (N. Y.) 555 (1908) ; Rnshin v. Cen- 
 tral Georgia R. Co., 128 Ga. 726 (1907). 
 
 The New York Code of Civ. Pro., § 481, provides: "The complaint 
 must contain: (i) the title of the action, specifying the name of the court 
 in which the action is brought; if it is brought in the Supreme Court, the 
 name of the county, which the plaintiff designates as the place of trial ; and 
 the names of all the parties to the action, plaintiff and defendant. (2) A 
 plain and concise statement of the facts constituting each cause of action 
 without unnecessary repetition. (3) A demand of the judgment to which 
 the plaintiff supposes himself entitled. 
 
 ■^ For example, where several causes of action on different contracts are 
 stated in one count. Blonie v. IVahl-Henues Institute, 150 111. App. 164 
 (1909). So, where a declaration for injury to an employe charged (i) dul-
 
 314 ACTION'S 
 
 In C'hitty im ricailiiijj ( ifnii ccl.), vol. I, star jiaj^c 249, it is said: 
 "'i'hc plaiiititY can not, l)v the common-law nilc, in order to sustain a 
 single demand, rely upon two or more distinct j^i'^^^^inds or matters, 
 each of which, independently of the other, amounts to a good cause 
 of action in respect to such demand." 
 
 Mr. Stephen in his work on Pleading says, i>age 242, "that the 
 declaration must not, in suppc^'t of a single demand, allege several 
 matters, by any one of which that demand is sufficiently supi)orted." 
 
 The distinction between the combining in one count of several 
 distinct causes of action and duplicity must be kept clearly in mind. 
 That distinction was aptly stated in H'uison v. Thompson, 8 U. C. 
 B. 561, 562, where the court said: "Dui>licity in a count consists 
 in supporting the same claim on several distinct grounds, not in 
 laying several injuries in one count." 
 
 A declaration, therefore, is not bad for duplicity because more 
 than one cause of action is set forth in one count, provided not 
 more than one independent and sufficient ground or matter is therein 
 alleged in support of a single demand or right of recovery. 
 
 In Piatt V. Jones, 59 ]\Iaine, i)age 242, it is said: "It is not quite 
 accurate to say that two causes of action in one count render it 
 double. Several items of account may be very properly embraced 
 in one count, and yet each one of those items might be a good cause 
 of action. So in the case of several trespasses upon the same lot of 
 land." 
 
 It will be seen u])on examination oi the declaration before us 
 that it does not violate the rule against duplicity. The pleader has 
 set forth as bTsclemand, or. right of recovery, the right to Oie pos- 
 srs,',)'! of 'four distinct tracls of land; the ground or matter alleged 
 in suj^i^ort of his demand, ur right of recovery, is that the defendant 
 liarclisseized him" of those tracts. If the declaration is to be con- 
 strued as setting forth in one count a separate demand for each of 
 those tracts, rather than a demand for them all combined, there is no 
 duplicity, because there is no allegation of more than one ground 
 relied upon in support of each single demand. In other words, if 
 there is but one demand, or right of recovery, set forth — that is, 
 the demand of the combined tracts then there is but one ground 
 relied upon in support of that demand — the defendant's disseizin ; 
 on the other hand, if there is set forth a distinct demand, or right 
 of recovery, for each tract, still there is but one ground relied upon 
 in support of any of those distinct demands — the defendant's dis- 
 seizin. In neither case would the declaration be bad for duplicity." 
 
 Ivxceptions overruled.-"' 
 
 ncss of circular saw teeth; (2) irregularity in the set of the teeth; (3) fail- 
 ure to instruct plaintiff how to operate the saw. Ferguson v. National SIioc- 
 makcrs, loS Maine 189 (ion). 
 
 " Part of the opinion is omitted. 
 
 ^Accord: Burgess v. Freelove, 2 Bos. & Pul. 425 (1801) ; Den v. Snozv- 
 hill, 13 N. J. L. 23 (1831) ; M.ain v. School District. 18 Conn. 214 (1846); 
 Hotchkiss V. Butler, 18 Conn. 287 (1847); Wilder v. McCormick, 2 Blatch. 
 C. C. 31 (1846); Fisk V. Tank, 12 Wis. 276 (i860); Cracraft v. Cochran, 
 16 Iowa 301 (1864) ; Earl v. Tupper, 45 Vt. 275 (1873) ; Rice v. Coolidge, 121
 
 GAINESVILLE, ETC., ELEC. R. CO. V. AUSTIN 315 
 
 GAINESVILLE AND DAHLONEGA ELECTRIC RAILWAY 
 COMPANY V. AUSTIN. 
 
 Supreme Court of Georgia, 1905. 
 122 Ga. 823. 
 
 The petition contained three counts. In the first count it was 
 alleged, that the plaintiff was a passenger in one of the electric cars 
 of the defendant, in which no seats were provided, and that he was 
 therefore compelled to stand ; that in the center of the car was a 
 post, upon the top of which rested the trolley-pole; that while the 
 car was in motion the conductor negligently caused and allowed the 
 trolley-wheel to get off the wire, and the trolley-pole shot upward ; 
 that the trolley-wire began to sag, and the trolley-pole began to stri]> 
 the guy-wires off the trolley-wire; that the trolley-wire, with its 
 deadl} electric current, was thus caused to fall down and among 
 the unprotected passengers on the car ; that there was no roof on the 
 car to keep the Vvire off', and it came in contact with the passengers, 
 shocking them and causing lurid flashes of fire ; that the car was run- 
 ning 20 to 30 miles per hour, and the employes in charge of the car 
 took no steps to stop it, or to prevent the electric current from strik- 
 ing the passengers ; that the plaintiff was considerably shocked, and 
 the emergency was great, and, being dazed and shocked and in dire 
 extremity, jumped from the car to the ground, and in so doing was 
 seriousl)^ injured. \'arious acts of negligence were charged against 
 the defendants. The third count contained allegations similar to 
 those of the first count, except that it was averred that by the falling 
 of the wire the plaintiff' was "thrown and hurled" from the car. 
 The defendant demurred to each count on various grounds, to the 
 jjetition generally on_tlie ground tjiat it is contradictory and uncer- 
 tain, and to th'e'tHird count on the ground that it contradicts the first 
 ^Trd'-s^roTid cduhts; "The court struck the second count, and over- 
 ruTed the demurrer as to the remainder of the petition. The defend- 
 ant excepted. 
 
 Cobb, J.: The special demurrer was designed to raise objection 
 that the first and third counts contained contradictory allegations as 
 to the manner in v/hich the injury complained of occurred; and the 
 c|uestion is presented whether this practice is allowable in this state. 
 The rules of the common-law pleading permitted the bringing of one 
 suit founded upon several causes of action of a similar nature. 
 
 Mass. 393 (1876) • ^"f-mcr "" rmuyi^ 97 Pa. 503 (1881) ; Devino v. Central 
 Vt. R. Co., 63 Vt. 98 (1890) ; Oliver v. Perkins, 92 Mich. 304 (1892) ; State v. 
 IVarren, yy Md. 121 (1893); Waterman Co. v. Waterman, 40 App. Div. (N. 
 ^•) 530 (1899). Otherwise where two or more distinct primary rights are 
 sought to be enforced or two or more distinct wrongs redressed. English v. 
 Purser, 6 East 395 (1805) ; Handy v. Chat field, 22, Wend. (N. Y.) 35 (1840) ; 
 Swinney v. Nave, 22 Ind. 178 (1864) ; Overbagh v. Oalhout, 90 Hun (N. Y.) 
 506 (1895) ; Alabama G. S. R. Co. v. Shahan, 116 Ala. 302 (1896) ; Gore v. 
 Condon, 87 Aid. 368 (1898) ; Southern R. Co. v. Hanby, "166 Ala. 641 (1910). 
 See also Secor v. Sturgis, 16 N. Y. 548 (1858) at p. 558.
 
 3i6 Ai iio.Ns 
 
 provided such causes of action were set forth in separate and distinct 
 counts. A declaration which contained one count and set fordijwo 
 or more causes of action therein was bad for duplicity, butc^^ecla- 
 ration which contained two or more distinct counts upon sep.arate 
 causes did not violate the rule against duplicity. If the declaration 
 coiTtVmed more tlian one count, and the transaction set forth was 
 exactly the same in each, the pleading was bad, and the surplus 
 counts would be stricken therefrom, and in some cases the cost 
 would be placed upon the attorney responsible for the surplusage. 
 But if the counts differed in any substantial particular from each 
 other, each was allow^ed to stand, upon a fiction that each was a dif- 
 ferent cause of action. The rule permitting various counts setting 
 forth different causes of action of a similar nature gave rise to the 
 practice of the pleaders in setting forth one cause of action in vari- 
 ous wavs in different counts, in order to meet the probable variations 
 in proof that might occur at the trial. While as matter of fact there 
 may have been only one transaction, a declaration containing several 
 counts would be allowed to stand where there was any material 
 difference in the way in which the details of the transaction was set 
 forth ; the declaration on its face thus appearing to be upon several 
 causes of action, and therefore within the rule above referred to. 
 See Gould on Pleading, 164, 208; Stephen on Pleading (Heard), 
 266; I Chitty on Pleading, 424; Phillips on Code PI., sees. 124, 206; 
 5 Encyc, P. & P. 319 (ii).-'* The common-law practice of allowing 
 two or more causes of action of a similar nature to be joined in the 
 same declaration has been incorporated into the code of this state. 
 The rule allowing several counts was substantially and materially 
 changed by the rules of practice adopted in England in 1833, under 
 w-hich two or more counts were generally not permissible where it 
 was apparent that they were ba.sed upon the same transaction. See 
 I Chitty, PI. 749; Stephen, PI. (Heard) 277. The reason given for 
 the abolition of several counts by the English r^lles of practice of 
 1833 was that the right to amend had been greatly enlarged, and 
 there was therefore no longer any necessity for stating the cause of 
 action in various ways.^^ Under the present law of this state the 
 right of amendment is even more liberal than it was in England in 
 1833, but this does not entirely dispense with the desirable results 
 reached by the use of several counts; for v^^hile the plaintiff may 
 amend to adjust his pleading to the evidence, the amendment may 
 be of such a character as to cause surprise to the opposite party and 
 v.-ork a postponement of the case, and several counts can be well 
 
 ^* Nelson v. Griffiths, 2 Bingh. 412 (1824) ; Frazer v. Shaw, 7 Dow). & R. 
 383 (1825); Little V. Blunt, 30 Mass. 473 (1833) ; Cole v. Sprawl, 35 Maine 
 161 (1852) ; Blaurcgard v. Webb Granite Co., 160 Mass. 201 (1893) ; Winters 
 ji_JU^wr-^>^-JLJEa. Super. Ct. 47 (1895); Rawlinson v. Shaiv, 117 Mich. S^ 
 (189S) ; Farquhar v. Farquhar, 194 Mass. 400 (1907)- 
 
 " In Enjrland the rules of the Supreme Court, order 19, rule 4, now pro- 
 vide : "Every- pleadinp shall contain and contain only, a statement in a surn- 
 mar\- form of the material facts on which the party pleading relies for his 
 claim or defence, as the case may be, but not the evidence by which they are 
 to be proved, and shall, when necessary, be divided into paragraphs, numbered 
 consecutively."
 
 HITCHCOCK V. MUNGER 317 
 
 used to avoid tlie probability of delay which would result from the 
 use of one when the evidence varies from the allegations and makes 
 an amendment necessary. The changes made by the English rules 
 of practice of 1S33 have never been adopted by the General Assem- 
 bly or by the judges as rules of practice in this state; and a plaintiff 
 may in different counts set forth the same cause of action in various 
 ways. 
 
 When the first and third counts in the petition are tested by the 
 prevailing rules of practice in this state, it will appear that there is 
 at least one substantial difference betv/een the two. In the first 
 count it is alleged that the plaintiff "jumped" from the car, and in 
 the third count that he vras "thrown and hurled" from the car. 
 While each count sets forth a cause of action having for its basis 
 apparently the same transaction, the causes of action in the two 
 counts are not the sam.e, and in determining liability different proof 
 vvould be required and different rules of law would be applicable. In 
 P'ltts V. Smith, 108 Ga. 37, and Self ret v. Sheppard, 11 1 Ga. 814, 
 the petitions were held bad for duplicity, for the reason that one 
 count dealt apparently v.ath tv/o separate and distinct catises of ac- 
 tion. See, in this connection, Orr v. Cooledge, 117 Ga. 206. The 
 first and third counts set forth a cause of action, and there was no 
 error in overruling the demurrer to these counts. .See Mannon v. 
 Ry. Co. (W. Va.)r49 S. E. 450. 
 Judgment affirmed.-® 
 
 HITCHCOCK I'. MUNGER. 
 
 Supreme Court of New Hampshire, 1844. 
 
 IS N. H. 97. 
 
 Debt, qui tam, under the statute against usury. 
 
 The first count alleged that on the 26th day of February, 1839, 
 one Samuel Richardson made his promissory note to the defendant, 
 for the sum of three hundred dollars, upon which note there were 
 three indorsements, the dates of which were specified in the count, 
 and that afterwards, on the 8th day of April, 1841, Richardson and 
 the defendant niade a corrupt agreement, by virtue of w^hich Rich- 
 ardson paid the defendant the sum of fifteen dollars, for forbear- 
 
 -"Pomeroy's Civil Remedies (4th ed.), § 467. Under the codes it is gen- 
 erally held that where a plaintiff has two or more grounds upon which he 
 may have a single cause of action, and there is some uncertainty as to whicli 
 he would be able to establish at the trial, he may set forth his claim in dif- 
 ferent counts so as to include each and every ground he may have for re- 
 coverv. Whitney v. Raikvav Co., 27 Wis. 327 (1870) ; Pearson v. Milwaukee 
 & St'. P. R. Co., 45 Iowa 497 (1877) ; Wilson v. Smith, 61 Cal. 209 (1882) ; 
 Oherndorfer v. Mayer, 30 Utah 325 (1906). Compare: Ferguson v. Gilheri. 
 16 Ohio St. 88 (1865) ; Penn M. L. T. Co. v. Conoughy, 54 Nebr. 123 (1898) ; 
 Craft R. M. Co. v. Onimnpiac B. Co., 63 Conn. 551 (1893). 
 
 But where the complaint sets out two or more distinct causes of action, 
 the statement of the facts constituting each cause must be separate and num- 
 bered. N. Y. Code of Civ. Pro., § 483; Pollers v. Shcrin, 89 App. Div. (N.
 
 ^iS ACTUINS 
 
 aiicc and jjivinjj day of ]^aynKMit of tlu- sum i\uc on the note, over 
 and above the rate of six per oenl.. ci)iUrary to the form of the 
 statute, etc.. 1>\ reason whereof the defendant forfeited the sum of 
 forty-tive dolUirs. being three times the amount of the usury ; one- 
 half to the use of the county, and one-half to the use of the plaintiff. 
 
 The second count alley;ed that on the said 26th day of February, 
 1839, said Kicliardson t^ave his other ])romissory note to the defend- 
 ant, of like date and amount, and i)ayal)le in the same manner, at 
 the rate before mentioned, upon which note were payments made by 
 the said Richardson similar to those ui)on the note first described. 
 The corrupt agreement, etc., was then stated, as in the first count. 
 
 After verdict for the plaintiff the defendant moved in arrest of 
 iudgment, on account of the insuHicicncy of the second count in the 
 declaration.-"' 
 
 CiiLCiTRiST, j.: Where there are several counts in a declaration, 
 whether the subjects of them be really distinct, or identical, they 
 must always purport to be founded on distinct causes of action, and 
 not to refer to the same matter. Stephen on Pleading (2d ed.), 318, 
 319. This is rendered necessary by the rule against duplicity, the 
 object of which is to ensure the production of a single issue upon 
 the same subject-matter in dispute, i Ch. PI. 259. This rule, though 
 evaded as to the declaration, by the use of several counts, is not per- 
 mitted to be directly violated. Where there are several counts, they 
 are for all ])urposes as distinct as if they were in different declara- 
 tions, and they must severally contain all necessary allegations. But 
 a party has a common law right to introduce several counts into his 
 declaration, in fact for the same subject-matter of complaint, and 
 varying from the first count only in statement, description, or cir- 
 cumstances. I Ch. PI. 451.''^ 
 
 In Barnes v. May, Cro. Elis. 240, a demand in assumpsit for 
 wool sold, was alleged to have been made "at such a day and place." 
 The second count contained an averment, licet similiter requisitus, 
 
 Y.) 37 (1903); Paul V. l-'ord, 117 App. Div. (N. Y.) 151 (1907); ^'^"'<-' v. 
 Smith, 73 Kans. 174 (1906); Yazoo & M. V. R. Co. v. Wallace, 90 Miss. 
 609 (1907) ; Casey v. St. Louis Transit Co., 205 Mo. 721 (1907)- 
 
 Where a complaint shows double statements of the same cause of action 
 or different grounds of recover>- for the same right in one count the plaintiff 
 has, in some cases, been required to elect upon which ground he will proceed. 
 Harvey v. Southern Pacific Co., 46 Ore. 505 (1905); McHugh v. St. Louis 
 Transit Co., 190 Mo. 85 (1905). 
 
 -' The statement of facts is abridged and the arguments of counsel and 
 part of the opinion are omitted. 
 
 ••aW'hen separate counts are used either in a common-law declaration or a 
 code complaint, each is a complete cause of action, as distinct from the others 
 as if it stood alone. Leabo v. Dctrick, 18 Ind. 414 (1862) ; Simmons v. Fair- 
 child, 42 Barb. (N. Y.) 404 (1854) ; Clark v. VVhittakcr Iron Co., 9 Mo. App. 
 446 (1881) ; Bailey v. Mosher, 63 Fed. 488 (1894) ; McLellan v. Assiniboia, 5 
 Manitoba 127 (1888) ; Hopkins v. Contra C. Co., 106 Cal. 366 (1895) ; Cooper 
 V. Portncr B. Co., 112 Ga. 894 (1900) ; Gilmore v. Christ Hospital, 68 N. J. L. 
 47 (1902). Matters of inducement and not of the gravamen of the action 
 stated in the first count of the complaint, need not and should not be re- 
 peated, but merely referred to in the subseciucnt counts. Ahendroth v. Board- 
 ley, 2- Wis. 555 C1871) ; Aull Savings Bank v. Lexington, 74 Mo. 404 (1881).
 
 HITCHCOCK t'. MUNGER 319 
 
 without alleging day and place, and it was adjudged good. In as- 
 sumpsit for the defendant's board for 120 weeks, the count alleged 
 the price to be 7s. per week. The second count was upon quantuin 
 meruit; and after verdict for the plaintiff, it was moved in arrest of 
 the judgment, because the weeks in the quantuin meruit were not 
 laid to be alia than those in the special promise, sed non allocatur; 
 for they do not appear necessarily to be the same, and without neces- 
 sity the court will not intend them so. Bac. Abr., Pleas and Plead- 
 ings, B, I. In Tindall v. Moore, 2 Wis. 114, the action was slander 
 upon several sets of words spoken by the defendant of tlie plaintiff. 
 The first set charged the plaintiff with setting a certain house on 
 fire. In the fifth set he said that the plaintiff "set the house on fire," 
 (meaning the same house). After verdict for the plaintiff, it was 
 moved in arrest, that the latter set of words were not actionable, and 
 the innuendo could not relate to the house mentioned in the first set 
 of words. But it was held that though the latter set of words 
 were not in themselves actionable, they should have relation to the 
 former set. In Phillips v. Fielding, 2 H. Bl. 123, which was assump- 
 sit for the nonperformance of a special agreement, the first count 
 set forth certain conditions of sale, and it was held that the other 
 counts might have referred generally to those conditions without re- 
 peating them. Gould, J., said that he remembered an indictment for 
 forgery, in which there were three counts for the forgery, and three 
 for the utterance. In the first count, the prisoner w^as particularly 
 described, and the grand jury having rejected the three first counts, 
 an objection was raised that the remaining counts described him as 
 "the said A B," by reference to the first; but all the judges held that 
 the description was good, and that the latter counts might refer to 
 the former. In Stiles v. Nokes, 7 East 493, Mr. Justice Lawrence 
 says that a general reference to former parts of the record may be 
 suflicient in pleading, without repeating the whole of such parts, 
 where it is a reference to something certain. In a second count upon 
 a deed or agreement, it is proper to aver that a certain other deed 
 or agreement was made betv»/^een the parties containing the like terms 
 and stipulations as are contained in the deed set forth in the first 
 count. I Ch. PI. 450, note, (h). 
 
 The second count in the declaration before us refers to the first 
 count with as much particularity as the law and authorities require. 
 We are of opinion that it is sutffcient, and that the motion in arrest 
 of judgment should be overruled. 
 
 Judgment on the verdict.-^ 
 
 -'' Accord : Dorr v. McKinnev, 91 Mass. 359 ( 1864) ; Haskell v. Haskell, 
 54 Cal. 262 (1880) ; Brickcr v. Missouri F. K. Co., 83 Mo. 391 (1884) ; St. 
 Louis G. L. Co. V. St. Louis, 86 Mo. 495 (1885) ; Treweek v. Hozvard, 105 
 Cal. 434 (1895) ; Fellows v. Chipnian, 26 R. I. 196 (1904) ; Wolf v. Smith, 149 
 Ala. 457 (1906) ; Marietta v. Cleveland, C. C. &■ St. L. R. Co., 52 Misc. (N. 
 Y.) 16 (1906) ; Realty Co. v. Farm Stock & H. R. Co., 79 Minn. 465 (1900). 
 Contra: Fatter v. Flarncst, 45 Ind. 416 (1873). And a reference to be 
 deemed sufficient must be clear and explicit. Opdycke v. Easton &■ Amboy R. 
 R. Co., 68 N. J. L. 12 (1902) ; Taylor v. Nciu Jersey T. G. & T. Co., 70 N. J. 
 L. 24 (1903).
 
 ^^JO ACTIONS 
 
 BULL V. MATIIF.WS. A 
 
 Sl'PKKMF. Coi'KT OV KuOlir. ISI.ANO, 1897. 
 
 20 R. I. 100. 
 
 Trespass on the case for tro\er and con\crsion, joining counts 
 in assumpsit. T-Teard on defendant's motion in arrest of judgment. 
 Tii-i-ixciiAST, J.: This is a motion in arrest of judgment on 
 the ground of a misjoinder of causes of action. The action is tres- 
 pass on the case for trover and conversion, and the declaration con- 
 tains a count in trover and conversion, and also the ordinary counts 
 in assumpsit. At the trial of the case in the chstrict court a decision 
 was rendered in favor of the plaintiff for $19.10 and costs; but there 
 is nothing in tlie record to show whether the judgment was based 
 on the count in trover and conversion, or on those in assumpsit. No 
 plea was fded in the case, but as the defendant entered an appearance 
 the general issue is deemed to be filed. Gen. Lav/s R. I., ch. 237, 
 sec. 3. But whether, in this case, the general issue as to the count 
 in trover, which would be not guilty, or as to the counts in assump- 
 sit, v.hich would be non assumpsit, is in, we have no means of deter- 
 mining. Within five days after the rendition of said decision the 
 defendant tiled his motion in arrest of judgment in the district court, 
 whereupon the case was certified to this court. 
 
 Itis a familiarjule of common-law pleading that counts.sound- 
 ing "nTtorf "can not i)roperl} \k- joined wilh counts sounding ia,con- 
 tract, and also that such misjoinder is fatal, not only on deuiurrer, 
 luit'also on^moTionTn arrest of judgment. Mncyc. PI. & Pr., vol. 2, 
 l5rSo371uTd''cases'"aIecT; HasTieU \. IBowen, 44 Vt. 579. The effect 
 of such misjoinder is clearly expressed in Chit. PI. 9 Am. ed. 206, 
 as follows: "The consequences of a misjoinder are more important 
 than the circumstances of a particular count being defective; for in 
 case of a misjoinder, however perfect the counts may respectively 
 be in themselves, the declaration will be bad on demurrer or in arrest 
 of judgment, or upon error." See also Gould's PI., ch. 4, sec. 87, 
 and cases cited. 
 
 The ordinary test for determining whether different causes of 
 action may be joined is to inquire whether the same plea may be 
 pleaded and the same judgment given on all the counts of the decla- 
 ration; and unless this question can be answered in the affirmative 
 the counts can not be joined. See Drury v. Merrill, 20 R. I. 2. See 
 also Court of Probate v. Sprague, 3 R. l. 205. 
 
 Applying this test to the case at bar, it will at once be seen that 
 there is a fatal misjoinder. If the pleader in this case had simply 
 omitted to strike out the money counts which are printed in the writ, 
 \ perhaps v.-e might disregard them; but as he has filled them out in 
 the ordinary way where the case is assumpsit, we feel bound to pre- 
 sume that he intended to rely thereon, as well as on the count in 
 trover. 
 
 It is true that, since the case was certified to this court, the plain- 
 tiff's counsel has filed an affidavit setting forth that by reason of 
 mistake and oversight he neglected to strike out the money counts,
 
 BULL V. MATHEWS 321 
 
 and also that at the trial in the district court the evidence introduced 
 was confined to tlie count in trover, which was the only count relied 
 on. But as a motion in arrest of judgment raises only those objec- 
 tions which are apparent upon the record ; {State v. Paul, 5 R. I. 189 ; 
 Black on Judgments, vol. i, sec. 96-8;) and as the affidavit forms no 
 part of the record, we are not at liberty to consider it. 
 Judgment arrested.-^ 
 
 New York Code of Civil Procedure, Sec. 484. 
 The plaintiff may unite in the same complaint, two or more 
 causes of action, whether they are such as were formerly denom- 
 inated legal or equitable, or both, where they are brought to recover 
 as follows: 
 
 1. Upon contract, express or implied. 
 
 2. For personal injuries, except libel, slander, criminal conver- 
 sation or seduction. 
 
 3. For libel or slander. 
 
 4. For injuries to real property. 
 
 5. Real property, in ejectment, with or without damages for 
 withholding thereof. (See sec. 1496.) 
 
 6. For injuries to personal property. 
 
 7. Chattels, with or without damages for the taking or detention 
 thereof. (See sec. 1689.) 
 
 8. Upon claims against a trustee, by virtue of a contract, or by 
 operation of law. 
 
 9. Upon claims arising out of the same transaction, or transac- 
 tions connected with the same subject of action, and not included 
 within one of the foregoing subdivisions of this section. (See sec. 
 1815.) 
 
 10. For penalties incurred under the forest, fish and game law. 
 
 11. For penalties incurred under the agricultural law. 
 
 12. For penalties incurred under the public health law. 
 
 But it must appear, upon the face of the complaint, that all the 
 causes of action, so united, belong to one of the foregoing subdi- 
 visions of this section ; that they are consistent with each other ; and, 
 except as otherwise prescribed by law, that they affect all the par- 
 lies to the action ; and It must appear upon the face of the complaint, 
 that they do not require different places of trial.^" 
 
 ^*At the common law, a cause of action arising ex contractu can not be 
 joined with a cause of action arising ex delicto. Brown v. Dixon, i Term 
 Rep. 274 (1786) ; Corbctt v. Packington, 6 Barn. & C. 268 (1827) ; Howe v. 
 Cook, 21 Wend. (N. Y.) 29 (1839) ; McNair v. Compton, 35 Pa. 23 (1859) ; 
 McDermott v. Morris Canal & B. Co~, 2,1i 1^. J. L. 53 (187^) ; N. & IV. R. 
 Co. V. Wysor, 82 Va. 250 (1886) ; Wilkins v. Standard Oil Co., 71 N. J. L. 
 399 (1904). . . . , 
 
 Where the plaintiff waives the tort, there is no misjoinder of counts 
 where one count alleges failure of consideration in a contract and the other 
 alleges a right to rescind the contract by reason of false representations which 
 induced it. Whitney v. Haskell, 216 Pa. 622 (igoy). Accord: Logan w. Wallis, 
 76 N. Car. 416 (1876) ; Campbell v. Wright, 21 How. Pr. (N. Y.) 9 (i860). 
 
 '° See Pomeroy's Code Remedies (4th ed.), § 437 et seq. ; California Code 
 Civil Procedure, § 427. 
 
 21 — Civ. Proc.
 
 ACTIONS 
 
 GEORGE DERBY WHITE z'. IMPRO\^ED TROPERTY 
 I-IOLDING COMPANY. 
 
 Supreme Court of New York, Appellate Division, 1910. 
 140 Api>. Div. (N. y.) 529. 
 
 Appeal by the defendant, the Improved Property Holding Com- 
 pany of New York, a corporation, from an interlocutory judgment 
 of the Supreme Court in favor of the plaintiff, entered in the office 
 of the clerk of the county of New York on the 8th day of June, 
 1910, upon the decision of the court, rendered after a trial at the 
 New York special term, overruling the defendant's demurrer to the 
 amended complaint. 
 
 Laughlin, J. : The first ground of demurrer is that an action 
 for breach of contract is joined with an action for the conversion of 
 personal property, and that such causes of action are not consistent 
 with each otlier, and do not fall within any of the subdivisions of 
 section 484 of the Code of Civil Procedure. 
 
 I am of tlie opinion that the demurrer was well taken. It is evi- 
 dent that tlie plaintiff has attempted to set forth two causes of ac- 
 tion separately numbered and stated to recover the same amount of 
 damages on two different theories ; but it does not necessarily follow 
 that the causes of action may be joined in one complaint. In the 
 first cause of action it is alleged that defendant leased to the plaintiff 
 certain rooms in the 320-322 Fifth avenue building; and that between 
 the 5th day of Alarch and the ist day of April, 1909, the defendant 
 "unlawfully and wrongfully took and converted" certain personal 
 property of the plaintiff lawfully on the leasehold premises "and 
 disposed of the same to its own use" ; whereby the plaintiff sustained 
 damages in the sum of $3,843. In the second cause of action it is 
 alleged that it was provided in the lease that the defendant should 
 cause the premises to be cleaned and cared for and should be ^re- 
 sponsible for the loss of property "in or from said leased premises 
 caused by the gross neglij^ence" of the janitor or his assistants; that 
 the premises were part of an office building containing freight and 
 passenger elevators which were in charge of the servants of the de- 
 fendant who had access to the premises; that the defendant, not 
 regarding its duty, "so negligently conducted itself in caring for said 
 premises and property that through the gross negligence and mis- 
 conduct of the defendant, its servants and agents, and without 
 negligence on the part of the plaintiff, said property was removed 
 from said premises in the absence of the plaintiff, his servants and 
 agents, by some person or persons unknown to the plaintiff, and 
 thereby said property was wholly lost to the plaintiff, to his damage," 
 in said sum of $3,843. 
 
 In an action for conversion an order of arrest might be obtained 
 and a body execution issued on the judgment. (Code Civ. Proc. 
 sees. 549, 556, 557.) But no such relief can be had in an action for 
 breach of contract by which personal property has been lost as al-
 
 WHITE V. HOLDING CO. 323 
 
 leged in this complaint. Although this may not be a controlling con- 
 sideration it is important in determining the legislative intent in 
 construing the provisions of section 484 of the Code of Civil Pro- 
 cedure which specifies the causes of action that may be joined in 
 the same complaint. It is not contended that authority for joining 
 these two causes of action is found in any of the subdivisions of 
 section 484 excepting the 9th. That subdivision in connection with 
 the first sentence of the section provides that the plaintiff may unite 
 in the same complaint two or more causes of action brought to re- 
 cover, "upon claims arising out of the same transaction, or trans- 
 actions connected with the same subject of action, and not included 
 within one of the foregoing subdivisions of this section." By the last 
 paragraph of that section it is further provided that it must appear 
 upon the face of the complaint that all tlie causes of action, "so 
 united, belong to one of the foregoing subdivisions of this section," 
 and "that they are consistent with each other." 
 
 It is quite clear, I think, that the cause of action for the wrong- 
 ful conversion of personal property by the defendant is not consist- 
 ent with a cause of action for the breach of an agreement on its 
 part to safeguard the property against loss, whereby through its 
 neglect to perfrom its contract duty the property was removed and 
 appropriated by a third party. If the property was converted by the 
 defendant it surely was not taken by a third party through its neg- 
 lect to care for it. Conversion implies a wrongful and wilful act 
 on the part of the defendant. 
 
 Moreover, I am of the opinion that the claim for conversion 
 and the claim for breach of contract do not arise out of the same 
 transaction or transactions connected with the same subject of action 
 within the scope and meaning of subdivision 9 of section 484 of the 
 Code of Civil Procedure. The "transaction" upon which the cause 
 of action for conversion is based was the conversion. (See People 
 V. Dennison, 84 N. Y. 272 ; Storey v. Richardson, 91 App. DIv. 381 ; 
 affd., 181 N. Y. 584; Van v. Madden, 132 App. Div. 535'; Deagan v. 
 Weeks, 67 App. Div. 410, and Heigle v. Willis, 50 Hun 588.) On 
 the other hand the subject of the action for the breach of contract 
 and the transaction upon which it was based are the contract and 
 the facts constituting the breach. (See Lehmair v. Griswold, 40 
 N. Y. Super. Ct. 100; Carpenter v. Manhattan Life Ins. Co., 93 
 N. Y. 552, and Rothschild v. Whitman, 132 N. Y. 472.) 
 
 It follovv^s, therefore, I think, that the Interlocutory judgment 
 should be reversed, with costs, and demurrer sustained, with costs, 
 with leave to plaintiff to serve an amended complaint upon payment 
 of costs In this court and in the court below. ^^ 
 
 Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred. 
 
 "Accord : Nichols v. Drew, 94 N. Y. 22 (1883) ; Southworth Co. v. Lamb, 
 82 Mo. 242 (1884) ; Henderson v. Boyd, 85 Tenn. 21, i S. W._498 (1886); 
 Stark V. Wellman, 96 Cal. 400, 31 Pac. 259 (1892) ; Commercial Union A. 
 Co. V. Shoemaker, 63 Nebr. 173 (1901); Kriiger V. St. Joe Lmnbcrinn Co., 
 II Idaho 504, 83 Pac. 695 (1905) ; Drexel V. Hollander, 112 App. Div. (N. Y.) 
 25 (1906); Montgomery v. Alexander Lumber Co., 140 Ga. 51 (1913); 
 Pridemore v. Fife, 178 Mo. App. 332 (1914). Compare Devin v. Walsh,
 
 3^4 ACTIONS 
 
 MART1:R i: 1I1£NRV SANCHEZ COM T ANY. 
 
 Supreme Court of New Jersey, 1908. 
 
 77 N. J. L. 95 " 
 
 Trencitard, J.: The plaintiff in this action sues the Henry 
 Sanchez Company, Henry Sanchez and Gumersindo Sanchez. 
 
 The action is brought upon a promissory note for $1,000, made 
 by one of the defcnthmts, the Henry Sanchez Company, a corpora- 
 tion of this state, to the plaintiff. 
 
 The first count of tlie declaration charges the company alone with 
 liability. 
 
 The second count avers that the company was dissolved under 
 the corporation act of this state ; that the two individual defendants 
 were directors of tlie company, and became trustees for the cred- 
 itors under the statute ; that they have corporate assets of the com- 
 pany in their hands sufficient to pay all outstanding liabilities of tlie 
 company. On these facts the second count seeks to recover against 
 these two directors alone. 
 
 The declaration also contains common counts, under which tlie 
 plaintiff seeks to hold all three defendants. 
 
 The defendant Gumersindo Sanchez demurs upon the ground, 
 among others, that the three counts or causes of action are improp- 
 erly joined. 
 
 We think the demurrer should be sustained. 
 
 The plaintiff can not, in one action, assert an independent lia- 
 bility of the corporation In one count, an independent liability of 
 the individual directors of the corporation in anotlier, and the lia- 
 bility of both the corporation and the individual directors in a third 
 count. Dunn v. Pennsylvania Railroad Co., 38 Vroom 377. 
 
 Such misjoinder of counts affords cause for a general demurrer 
 to the declaration, i Chitt. PI. 202, 205, 665 ; 2 Saund. 117b; Drum- 
 mond V. Dorant, 4 T. R. 360; Dunn v. Pennsylvania Railroad Co., 
 supra. 
 
 The demurrer will be sustained.^^ 
 
 108 Iowa 428, 79 N. W. 133 (1899) ; Maisenbackcr v. Society Concordia, 71 
 Conn. 369, 42 Atl. 67, 71 Am. St. 213 (1899) ; Minton v. Piano Co., 33 App. 
 D. C. 137 (1911) ; Hooper v. Herring, 9 Ala. App. 292 (1914) ; Birmingham 
 R. L. & P. Co. v. Jackson, 9 Ala. App. 588 (1914). See also Bowman v. 
 IVoIilke, 166 Cal. 121 (1913). 
 
 "Part of the opinion is omitted. 
 
 ** Strohecke r v. Grant, 16 S. & R. (Pa.) 237 (1827) ; Sehring v. Keith, 
 2 Bailey's S. Cai*. l92~(T83f) ; Preston v. Davis, 8 Ark. 167 (1847) ; Burns v. 
 IViUiams, 88 N. Car. 159 (1883) ; Sleeper v. World's F. B. H. Co., 166 111. 57 
 (1897); Wedgewood Co. v. Parr, 112 Iowa 514 (1900); Gihnore v. Christ 
 Hospital, 68 N. J. L. 47 (1902) ; Cole v. Lippit, 25 R. I. 104 (1903) ; Weil v. 
 Town< ;e«^ ?5 Pa. Super. Ct. 638 (1904). _ _ _ ~ 
 
 A demand due plaintiff as surviving partner may be joined in the same 
 action with a demand due him in his own right. Stafford v. Gold, 9 Pick. 
 (Mass.) 533 (1830) ; Adams v. Hackett, 27 N. H. 280 (1853) ; Davis v. 
 Church, 1 W. & S. 240 (1841), compare Mosgrove v. Golden. loi Pa. 605
 
 COPLESTON V. PIPER 325 
 
 COPLESTON V. PIPER. ^^ 
 
 Court of Co:mimon Pleas, 1697. 
 
 1 Lord Raymond 191. 
 
 Trespass quare clausum necnon mesuagium et tenementum 
 f regit et quandam parcellam hordei asportavit, etc. Upon not guilty 
 pleaded, verdict for the plaintiff, and entire damages given. And 
 last Easter term Gould King's serjeant moved in arrest of judg- 
 ment; I. That the word tenementum is too general and uncertain, 
 for it signifies anything that can be holden. But the Powells justices 
 said, that ejectment de uno tenemento is ill for the uncertainty, be- 
 cause in that action the tiling itself must be recovered, and tene- 
 mentum may signify a thing for which ejectment will not lie, as an 
 advowson, etc., but in trespass where damages only are recoverable, 
 the word will serve well enough. But in this case, it being after ver- 
 dict, they will intend that it signifies the same with mesuagium, and 
 so si:rplusage, and no damages given for it. To which Treby chief 
 justice agreed. 2. Gould argued, that the declaration was too uncer- 
 tain, for the jury could not know, for what quantity of barley the 
 plaintiff declared, for the word parcel is very uncertain. And there- 
 fore I Cro. 865 b. trover for parcella piscium Anglice ling, judg- 
 ment was arrested for the uncertainty. 5 Co. 34. Playter's case. 
 Besides that, it does not appear, whether this parcel was severed 
 from the grovtnd, or growing upon it ; in which cases the defendant 
 must have different pleas, for in the first case he might justify by 
 distress, in the last he must make title to the land. And therefore 
 the plaintiff ought to have declared for so many loads of barley, 
 etc. But as to this the court said, that after verdict they will intend 
 that it was severed from tlie land. But as to the other exception they 
 said, that this differs from Playter's case; for in that case there 
 was neither quantity nor quality, but here there is quality. And 
 Treby chief justice said, that in the term before, trespass pro tribus 
 struibus foeni, Anglice ricks of hay, was adjudged good after ver- 
 dict. And Powell junior justice said, that trover pro una parcella 
 fill had been adjudged good in the King's bench ; and yet there seems 
 that there was uncertainty in the quantity and quality also, for there 
 are several sorts of thread. See i Mod. 295 ; i Ventr. 105. So that 
 they seemed to be of opinion that the principal case was well enough ; 
 
 (1882) ; Richards v. Heather, 1 B. & Aid. 29 (1817). So, a demand against 
 one as a surviving partner may be joined with a demand against him as an 
 individual. Golding v. Vaiighan, 2 Chitty Rep. 436 (1782), S. Car. 18 E. C. 
 L. R. 724. But a count against a firm on a joint demand can not be joined 
 with a count against one of tlie partners on an individual demand. Lynch v. 
 Thompson, 61 Miss. 354 C1883) ; United States v. McCoy, 54 Fed. 107 (1893). 
 In England, under the rules of the Supreme Court, order XVIII, rule I, 
 the plaintiff may unite several causes of action in one action except in actions 
 for the recovery of land and actions by a trustee in bankruptcy, but if it 
 appear to the court that any such causes of action can not be conveniently 
 tried together, separate trials may be ordered. See also New Jersey Practice 
 Act of 1912, § 14.. .
 
 3-6 ACTIONS 
 
 hut upon the importunity of the defendant's counsel it \vas stayed till 
 tlie jilaintiff should move for his judg^nent. And now this term 
 Darnall serjeant moved for judgment; and said that it was good, 
 after verdict at least. And he cited Style 199, 75, 224, 353; 2 Cro. 
 664; Pasch. 1694, B. R. EtJierick v. Calendar. Trover de tribus 
 peciis \ini branditati, Anglice brandy wine; the defendant demurred 
 generally ; and exception there was taken, that pecia was a very un- 
 certain word; but it was adjudged well enough after verdict. And 
 in the case Holt cited, a case between Brasey and Roe, trover pro 
 quatuor peciis tracti grafetti, Anglice drawn grasett, which was ad- 
 judged good after demurrer. But Treby chief justice said, that a 
 piece of stuff was a quantity known to consist of so many yards; 
 but a parcel of barley is no quantity known. And therefore last 
 IMichaelmas term in a case between Smith and Theobald, trover de 
 quandum parcella culmi, after verdict judgment was arrested, etc. 
 And in Trin. 22 Car. ; 2 B. R. ; Rot. 373 trover de quandam parcella 
 fili, it was adjudged ill after verdict. And therefore he thought, 
 tliat judgment ought to be arrested, and it was arrested, nisi, etc.^* 
 
 '^ While some of the objections on the ground of uncertainty in the older 
 cases may seem fantastically technical, nevertheless, in modern pleading, "thej 
 declaration must allege all the circumstances necessary for the support of the 
 action, and contain a full regular and methodical statement of the injury^ 
 which the plaintiff has sustained, with such precision, certainty and clearness i 
 that the defendant, knowing what he is called upon to answer, may be able toj 
 plead a direct and imequivocal plea; and that the jury may be able to give 
 a complete verdict upon the issue, and the court, consistently with rules of 
 law, may give a ceraiin and distinct judgment upon the premises." Per 
 Chapman, J., in Read v. Smith, 83 Mass. 519 (1861) ; Lidirig Coal Co. v. Liid- 
 Iioii, 69 Ohio 311 (1903). See also, Cutler v. Southern, 1 Saund. 116 (1667) ; 
 Camphill v. St. John, i Ld. Raym. 20 (1694) ; Hart fort v. Jones, i Ld. Ra}Tn. 
 588 (1700), Salk. 654; Martin v. Hendrickson, 2 Ld. Raym. 1007 (1703); 
 IVyat v. Essington, 2 Ld. Raym. 637 (1725), Str. 637; Bertie V. Pickering, 4 
 Burr. 2455 (1769); King v. Pippet, I Term Rep. 235 (1786); J' Anson v. 
 Stuart, I Term Rep. (1786), i Sm. L. Ca. 30 and notes; Drewry v. Tzviss, 4 
 Term Rep. 558 (1792) ; Oystcad v. Shed, 12 I^Iass. 505 (1815) ; Phillips v. 
 Phillips, L. R. 4 Q. B. Div. 127 (1878) ; Gere v. Unger, 12 .=; Pa. 644 (1889) ; 
 Giroux A. Co. v. White, 21 Ore. 435 (1891), w'here the complaint is given in 
 its entirety, not, says the court, "as a pattern to imitate, but as an exemple 
 to deter"; Che.<;tmit St. N. Bk v. IlUis, 161 Pa. 241 (1894) ; Clark v. Lin dsay. 
 7 Pa. Supef~Ct. 43 (189^) ; Ferguson v^ Western U. T. Co., 64 N. J. L. 222 
 (1899) ; Busrh v. CaUiqun^ 14 Pa. Super. Ct. 578 ''1900) ; Logansport v. Kihm, 
 159 Ind. 68 (1902) ; Davis v. Smith, 26 R. L 129 (1904) ; Soule v. Weatherhy, 
 59 Utah 306 (1911). Under the codes uncertainty is usually taken ad- 
 vantage of by motion to make more certain. Gould on pleading (Will's ed.) 
 367 note; IJale v. Omaha N. Bk., 49 N. Y. 626 (1S72) ; Lockwood v. Bridge 
 Co., 60 S. Car. 492 (1900) ; unless so uncertain that the elements of a cause 
 of action are not disclosed, Phillips v. Sonora C. Co., 90 App. Div. (N. Y.) 
 140 (1904) ; Chicago & E. R. Co. v. Lawrence, 169 Ind. 310 (1907). At com- 
 mon law indefiniteness and uncertainty are, ordinarily, defects of form and 
 subject to special demurrer, unless the pleading fails to disclose a cause of 
 action. Race v. Ea.<;ton & A. R. Co., 62 N. J. L. 536 C1898); Emmons v. 
 Alvord, 177 Mass. 466 (1901) ; McDonald v. Smith, 139 Mich. 211 (1905)-
 
 NEVIL V. SOPER 327 
 
 , - NEVIL V. SOPER. 
 
 Court of King's Bench, 1698. 
 
 Salkeld 213. 
 
 In covenant against an apprentice the plaintiff assigned for 
 breach, that the apprentice before the time of his apprenticeship 
 expired, and durante tempore quo servivit, departed from his mas- 
 ter's service: The defendant demurred, and had judgment, because 
 the declaration was repugnant, for it should have been durante tem- 
 pore quo servire debuit. The case of Lawly v. Arnold,^^ Hill 8 W, 3 
 B. R,, was not unlike this : That was trespass for taking and carry- 
 ing away his timber and brick, super terrain snani jacent. ergo con- 
 fectionem domiis de novo aedificat. And the court held this Insen- ' 
 sible, for tliey could not be materials toward the building of a house'/ 
 already built. Sed Quaere, if that was not surplusage?"^ ( 
 
 j^ MACURDA V. LEWISTON JOURNAL CO. 
 Supreme Judicial Court of Maine, 1908. 
 
 104 Maine 554. 
 
 Two actions on the case brought by the plaintiff against the 
 defendant company, to recover damages for alleged libels published 
 by the defendant company, "of and concerning the plaintiff." The 
 defendant company filed a general demurrer to each declaration. 
 The presiding justice, pro forma,' overruled the demurrers, and the 
 defendant excepted. 
 
 ^^Lodie V. Arnold, Salk. 458 (1696). 
 
 '^Pleadings must not be repugnant. Vigers v. Aldrich, 4 Burr. 2482 
 (1769) ; Rowan v. Lee, 3 J. J. Marsh (Ky.) 97 (1829) ; Lcavitt v. Coles, 2 
 McLean (U. S.) 491 (1841); Mix v. People, 92 111. 549 (1879); Gulliver v. 
 Fowler, 64 Conn. 556 (1S94) ; Borland v. Prindlc, 144 Fed. 713 (1906); 
 Anniston E. & G. Co. v. Rosen, 159 Ala. 195 (1909) ; Stanley v. Siunrel, 163 
 S. W. 697 (Tex. 1914). Thus a declaration that alleges the plaintiff's intes- 
 tate was intoxicated and unable to care for himself and which likewise avers 
 fhat"he was in the exercise of due care, is bad for repugnancy. Keeshan v. 
 Elgin A. & S. T. Co., 132 III. App. 416 (1907). To vitiate a pleading on the ' 
 ground of repugnancy, the conflicting statements must be irreconcilable, as ■ 
 well as material. Coddingtoh' v. Wilkin, Cro. Jac. Z77 (1615). Compare 
 TncTedbn v. Barges, Shower 27 (1688) ; Nosworthy v. Wyldeman, i Mod. 42 
 (1669) ; Palmer v. Stavely, Salk. 24 (1701) ; Wyat v. Aland, Salk. 324 
 (1703) ; Hayman v. Rogers, 1 Strange 232 (1719) ; Sabine v. Johnson, 1 Bos. 
 & P. 60 (1797) ; Catzenholz v. Heller, 82 Wis. 30 (1892) ; Ross v. Charles- 
 town Co., 42 S. Car. 447 (1894) ; Peoples Bank v. Geisthart, 55 Nebr. 232 
 (1898) ; Town of Cameron v. Hicks, 63 W. Va. 484 (1909) ; IVahle v. Great 
 N. R. Co., 41 Mont. 326 (1910). "If the pleading is repugnant, in a material 
 point ; it is ill in substance or on general demurrer ; but repugnancy in an 
 immaterial point is a fault in form only, and therefore no advantage can be 
 taken of it, except by special demurrer." Gould on Pleading (Will's ed.) 
 313. See also, Chitty on Pleading (16 Amer. ed.) 573.
 
 ^w'S ACTIONS 
 
 King, J-: I^ach action is lo recover damages for an alleged libel 
 and is before the law court on a general demurrer to the declaration. 
 In the first action the publication of the alleged libelous matter is 
 stated in this form : 
 
 "Said defendant did * * * falsely and maliciously compose, 
 ■print, publish and circulate, or cause to be composed, printed, pub- 
 lished and circulated in a certain public newspaper * * * ^ certain 
 scandalous and malicious libel of and concerning the plaintiff." 
 
 In tlie otlier action the publication is stated In this form : 
 
 "Said defendant did * * * falsely and maliciously compose 
 and publish or cause and prepare to be composed and published 
 * * * in a certain newspaper * * * a certain scandalous and 
 malicious libel of and concerning the plaintiff." 
 
 It is a general rule of pleading, too well settled to need the cita- 
 tion of authorities, that the declaration must allege the gravamen — 
 the grievance complained of with such precision, certainty and 
 defmiteness that the defendant may know what to answer by his 
 pleading and proof. 
 
 A disjunctive allegation as to the essence of the cause of action 
 is as pure an example of uncertainty and indefiniteness in pleading 
 as can well be found, for it completely conceals from the defendant 
 the ground upon which a recovery is claimed. 
 
 Such form of allegation has been uniformly regarded as fatally 
 defective. 
 
 '• "A pleading is bad under any system of practice when it states 
 material facts in the alternative, so that it is impossible to determine 
 upon which of several equally substantive averments the pleader 
 relies for the maintenance of his action or defense." 6 Encyc. PI. 
 & Pr., page 268; Chitty on PI. i6th Am. ed., star page 260; Stephen 
 on PI. 340 ; State v. Singer, loi Maine, 299. 
 
 In the last case cited this court recently decided that such form 
 of charging, in the disjunctive, in an indictment for libel, violates 
 the rule of certainty in criminal pleading and is fatal on general 
 demurrer. It is there said : 
 
 "To be charged wdth printing and publishing a libel is one thing 
 and to defend against it, evidence of one kind may be required, 
 while to meet the charge of having caused a libel to be printed and 
 published may require evidence of another and entirely different 
 character. This distinction goes to the essence of the charge." 
 
 Applying the same rule of certainty to the declaration in the 
 cases before us, with like discriminating reasoning, and they are 
 found defective because of the disjunctive form in which the pvib- 
 lication is alleged. 
 
 But it is suggested by plaintiff that such effect is not reached by 
 a general demurrer. We think it is. It is not a defect in form, but 
 in substance. The question to be answered by the declaration is:
 
 MACURDA V. JOURNAL CO. 329 
 
 What act of defendant is relied upon? The answer is uncertain; 
 either that he did an act complained of, or caused it to be done. 
 This uncertainty of allegation goes to the very essence of the cause 
 of action to the act of defendant from which the cause of action 
 springs. 
 
 If from the declaration tlie cause of action does not sufficiently 
 appear the pleading is defective in matter of substance. 
 
 Here the plaintiff has alleged in each declaration that the defend- 
 ant did either one or the other of two substantive acts, but he has 
 not disclosed upon which of those acts he relies as the cause of 
 action. 
 
 It is the opinion of the court that the declaration in each case is 
 defective because of the disjunctive form of allegation used, and 
 that the defect is reached by general demurrer. 
 
 This conclusion makes it unnecessary to consider the other par- 
 ticulars in which it is claimed the declarations are defective. The 
 entry in each case must be, exceptions sustained.^'' 
 
 *'As a general rule, it is bad pleading to state material facts in the 
 alternative. Kmg v. Brereton, 8 Mod. 328 (1725) ; Cook v. Cox, 3 M. & S. 
 109 (1814) ; Stone v. Graves, 8 Mo. 148 (1843) ; Tilt v. Tift, 4 Den. (N. Y.) 
 175 (1847); Corhin v. George, 2 Abb. Pr. (N. Y.) 465 (1856); Sailers v. 
 Genin, 8 Abb. Pr. (N. Y.) 253 (1859) ; Wheeler v. Thayer, 121 Ind. 64 (1889) ; 
 Mitchell V. Williamson, 6 Md. 210 (1854) ; Pittsburg, &c., R. Co. v. Peck, 
 
 165 Ind. 537 (1905) ; Sprague v. Currie, 133 App. Div. (N. Y.) 18 (1909) ; 
 Pacetti V. Cent. G. R. Co., 6 Ga. App. 97 (1909) ; Sloss-Sheffield Co. v. Smith, 
 
 166 Ala. 437 (1910) ; Chitty on Pleading, *26o; Stephen on Pleading (Heard's 
 ed.) 387. When a plaintiff, in a single count shifts his right of action from 
 one ground to another, and states several breaches of duty in the alternative 
 or disjunctively, so that it is impossible to say upon which of several equally 
 material averments he relies, the complaint is bad. Highland, &c., R. Co. v. 
 Dusenherry, 94 Ala. 413 (1891). Compare Douglas v. Marsh, 141 Mich. 209 
 (1905) ; Spaulding v. Edina, 122 Mo. App. 65 (1906) ; Alabama G. S. R. Co. 
 V. Sanders, 145 Ala. 449 (1906). 
 
 It has, however, been held that it is sometimes permissible to plead) 
 alternatively, when from the nature of the case the party pleading can not) 
 fairly be expected to know with certainty which of two conditions exist ( 
 either of which would svistain his action or defense. Mann v. Cook, 24 Abb. \ 
 N. C. 314 (1890) and note; Hasbery v. Moses, 81 App. Div. (N. Y.) 815. 
 (1907) , Mutual Life Ins. Co. v. McCurdy, 118 App. Div. (N. Y.) 815 (1907) ; 
 Floyd v. Patterson, 72 Tex. 202 (1888) ; Bank of Saluda v. Feaster, 87 S. Car. 
 95 (1910) And in several states, by statute, a party may allege a fact in the 
 alternative upon declaring his belief of one alternative or the other and his 
 ignorance whether it is one, or the other. Revised Laws Massachusetts 
 (1902), ch. 173, § 34; Kentucky Code of Civil Procedure, § 113, subsec. 4; 
 Lotilwille & N. R. Co. v. Ft. Wayne Co., 108 Ky. 113 (1900) ; Merschelv. L. & 
 N. R. Co., 121 Ky. 620 (1005). Missouri Revised Statutes (1909), § 1828; 
 Fleming v. Tatiim, 232 Mo. 678 (1911) ; Otrich v. 5"^. L., &c., R. Co., 154 Mo. 
 App. 420 (1910). Under the modern English rules the averment of inconsistent 
 sets of material facts in the alternative is permitted unless embarrassing. Rules 
 of Supreme Court, order 10, rule 24: Annual Practice (1914) 320; Smith v. 
 Richardson, L. R. 4, C. P. D. 112 (1878). 
 
 The New Jersey Practice Act of 1912, Schedule A, rule 37, provides, 
 "Plaintiff may claim alternative relief based upon an alternative construction 
 or ascertainment of his cause of action."
 
 :>j 
 
 ^O ACTIONS 
 
 DOE d. BTKCII ■:'. PHILIPS. 
 
 Court of King's Bench, 1796. 
 
 C Term Reports, 597. 
 
 This ejectment was brought for a forfeiture in a lease. 
 
 Yates on a former day moved that the lessor of the plaintiff 
 should give in a particular of the covenants, of the breaches, of the 
 times when, etc., on which he meant to insist that the defendant had 
 forfeited the lease, and that he should not be permitted to give evi- 
 dence at the trial of any thing not contained in those particulars. _ 
 
 Scarlet now showed cause against the rule, and consented to give 
 a particular of the covenants on which he meant to rely, such a 
 particular as (he said) would be sufficient if this were an action of 
 covenant instead of ejectment, but objected to the extent of the 
 rule, which required a particular of the breaches and of the times 
 when the forfeitures accrued. 
 
 But the court, thinking that the application In its full extent was 
 highly reasonable, made the rule absolute.^^ 
 
 *^l Tidd's Practltce (gth ed.) S96; l Troubat & Haly's Practice (Whar- 
 ton's ed.) 365.; 31 Cyc. ^6^ : 16 P. & L. Di& _^f Pa£,_Pa.^^ 
 
 A bill of particulars is appropriale^^inaTrdescriptions oT^actions where 
 the circumstances are such that justice demands that a party should be ap- 
 prised of the matters for which he is to be put for trial with greater par- 
 ticularity than is required by the rules of pleading." Per Rapallo, J., in Ttllon 
 V. Bcecher, 59 N. Y. 176 (1874). While the granting or refusmg of a bill of 
 particulars' generally lies in the discretion of the court, it is usual to require 
 tjarticulars only in those cases where the pleadings are permitted to be gen- 
 eral. If the pleading is more indefinite than is allowed by law a demurrer 
 should be interposd. Clarke v. Ohio R. Co., 39 W. Va. 7,12 (1894) ; Trans- 
 portation Co. v. Standard Oil Co., 50 W. Va. 611 (1902). See also, Le Breton 
 V. Braham, 3 Burr. 1389 (1763) ; Collett v. Thompson, 3 B. & Pul. 246 (1802) ; 
 Hurst V. Wathis, I Camp. 68 (1807) : Mercer v. Savre, 3 Johns. 248 (1808) ; 
 Humphrv v. Cotteyou, 4 Cow. (N. Y.) 54 (1825) ; Johnson v. Birley, $ B. 
 & Aid. {^o (1822) ; Comm. v. SneUing, 32 Mass. 321 (1834) : Davies v. Cha(>- 
 vian, 6 Ad. & El. 767 (1837) ; Earh v. Smith, T2 Irish C. L. Rep., Appendix 
 3;; (1S61) I Jlnrris_y^_HansmU-I^W. N. C. (Phila.) 507 C187.O : Urnnnston 
 V Enoch s, I W. N. C. C'Phila.) 244 (187O ; Enrhush v.j'himts, 2 W. N?C. 
 TTmTaT 108 (187-'); Kelsev v. Saraent, 100 N. Y. 602 (t88.0 : Etzvyer v. 
 Slaftery, 118 App. Div. (N. Y.) 345 C1907) ; IVells v. Caro, 131 N. Y. S. 573 
 (1911) ; Locker v. Tobacco Co., 260 Fed. 973 (1912).
 
 CHAPTER IV. 
 Trial. 
 
 SECTION I. MODES OF TRIAL. 
 
 "These modes of trial are seven in number: The trial by the 
 record, by certificate, by witnesses, by inspection, by wager of battle, 
 by wager of law, and by jury. The first is the appropriate form of 
 trial when the existence of a record is affirmed on one side and 
 denied on the other, upon an issue of md tiel record. The trial by 
 certificate is of rare occurrence in modern times, being almost en- 
 tirely confined to the issue of ne ungues accoiiple en lo'ial matrimonie. 
 This form of issue can arise only in dower; it is not allowed in 
 personal actions. The trial by witnesses is, at tlie common law, 
 applicable only to a very few issues ; but it is the only form of trial 
 which is known to the civil law. It is the proper form of trial when, 
 to a widow's writ of dower, the tenant pleads that the husband is 
 alive. 
 
 "The trial by inspection or examination occurred when the judges, 
 upon the testimony of their own sense, were able to decide the point 
 in dispute. This mode of trial seems to have been incidentally swept 
 av.-ay in England in the demolition of real actions. The wager of 
 battle was an appeal to arms, and proceeded upon the theory that 
 heaven would give the victory to him who had the right. It was 
 confined, as far as civil actions are concerned, to issue joined in a 
 writ of right, "the last and most solemn decision of real property." 
 It was abolished by statute. Wager of law was a method of decid- 
 ing the issue by permitting the defendant to swear to the truth of his 
 defense. He brought eleven compurgators with him into court wlio 
 swore that they believed that he spoke the truth; and the oaths of 
 the twelve were as conclusive against the plaintiff as a verdict would 
 have been. This method of trial also has been abolished in England 
 by statute. The seventh, and by far the most important mode of 
 trial, is the trial by jury, called also the trial per pais, or by the 
 country. It is on account of the peculiar characteristics of the trial 
 by jury that the system of pleading at common law is what it is; 
 and many of the rules which have been criticised as most technical 
 and artificial, prove to be both logical and sound when considered in 
 relation to the tribunal for whose guidance they were framed. Trial 
 by jury is, with the exception of tlie trial by the record, the only 
 form of trial in use in the United States."^ 
 
 'Pepper on Pleading, 4; also, 18 A. & E. Encyc. of Law (i ed.), 470. See 
 also III Blackstone's Commentaries, 330; Stephen on Pleading (9 Am. ed.)- 
 76; Elliott's General Practice, § 504, et seq.; Thompson on Trials, passim.; 
 Thayer on Evidence, passim. Under modern statutes and rules many cases 
 may be tried by the court without a jury.
 
 332 TRIAL 
 
 MILLE LACS COUXTY COIMATISSTONERS v. MORRISON. 
 Supreme Court of Minnesota, 1875. 
 
 22 Minn. 178 
 
 Proceedings to enforce payment of delinquent taxes in the county 
 of Mille Lacs under the Act of March 9, 1874 (Laws, 1874, ch. i, 
 sec. 113). The defendant objected to a defect in the county auditor's 
 affidavit to the tax Hst, which was overruled, and to the sufficiency 
 of the affidavit of publication, which was allowed to be corrected. 
 The defendant then demanded a jury trial, which was denied. After 
 rendering judgment against defendant's objections, the district judge 
 certified the case to the supreme court. - 
 
 GiLFiLLAN, C. J. : \\'hethcr the taxpayer is entitled to a jury 
 trial in these proceedings is an important question, as it affects both 
 the power of the state to collect its revenues by a speedy and conven- 
 ient mode, and tlie security of the citizen against oppression and 
 illegal acts. It is claimed that because legal rights are involved and 
 are to be determined, it is a proceeding at law, and that in all pro- 
 ceedings at law the right to a trial by jury is guaranteed by the Con- 
 stitution, and the case of Parsons v. Bedford, 3 Pet. (U. S.) 433, 
 is cited. In that case Mr. Justice Story, discussing the provisions of 
 the Federal Constitution in respect to trial by jury, says (p. 447) : 
 "By common law they meant what the Constitution in the third 
 article denominated Maw,' not merely suits which the common law 
 recognized among its old and settled proceedings, but suits in which 
 legal rights were to be ascertained and determined, in contradistinc- 
 tion to those where equitable rights alone were recognized and 
 equitable remedies administered ; or where, as in the admiralty, a 
 mixture of public law and maritime law and equity, were often 
 found in the same suit." 
 
 If, by this language, the learned judge meant that in all proceed- 
 ings to ascertain and determine rights, other than those of equitable 
 or maritime jurisdiction, the Constitution guarantees the right of 
 trial by jury, the language is certainly too broad ; for there are many 
 proceedings, involving important rights, of neither equitable nor 
 maritime jurisdiction, in which, as settled by many decisions, the 
 parties are not entitled to a jury trial. We refer to a few of these: 
 Proceedings by the state under its right of eminent domain. Penn. 
 R. Co. V. Lutheran Congregation, 53 Pa. St. 445 ; Buffalo Bayou, etc., 
 R. Co. V. Ferris, 26 Texas 588; Haverhill Bridge v. County Comm'rs, 
 103 Mass. 120; Dronberger v. Reed, 11 Ind. 420; Livingston v. 
 Mayor, etc., of N. Y., 8 Wend. (N. Y.) 85.^ 
 
 'The statement of facts is from the opinion, part of which is omitted. 
 
 'Central Branch U. P. R. Co. V. Atchison. T. & S. F. R. Co., 28 Kans. 
 453 (1882) ; Ingram v. Maine IV. Co., 98 Maine 566 (1904) ; IVixom v. Bixby, 
 127 Mich. 479 (1901); St. Joseph v. Gciwits, 148 Mo. 210 (1899); State v. 
 Jones, 239 N. Car. 613, 52 S. E. 240 (1905) ; Gilmer v. Hunnicutt, 57 S. Car. 
 166, 35 S. E. 521 (1900) ; Bauman v. Ross, 167 U. S. 549, 42 L. ed. 274, 17 Sup.
 
 MILLE LACS COUNTY V. MORRISON 333 
 
 Proceedings to determine the right to office under an election. 
 Whallon v. Bancroft, 4 Minn. 109 ; Ewing v. Filley, 43 Pa. St. 384.* 
 
 Proceedings to assess, on property benefited, the damages for 
 taking lands for highways. People v. Mayor, etc., of Brooklyn, 4 
 N. Y. 419; McMasters v. The Commonwealth, 3 Watts (Pa.) 292. 
 In mandamus. Atherton v. Sherwood, 15 Minn. 221." Under statutes 
 for settling estates of insolvents. Sands v. Kimhark, 27 N. Y. 147.^ 
 
 Proceedings to appoint guardians of insane persons. Gaston v. 
 Bahcock, 6 Wis. 503. 
 
 References to assess the value of improvements under occupying 
 claimants' laws, where such mode of assessment existed at the 
 adoption of the constitution. Ross v. Irving, 14 111. 171. In suits 
 uniting the legal cause of action to recover a debt, with the equitable 
 cause of action to foreclose a mortgage given to secure it. Stillwell 
 V. Kellogg, 14 Wis. 461.^ To enforce liens given by statute upon 
 vessels for labor and material. Sheppard v. Steele, 43 N. Y. 52. 
 In summary proceedings to enforce debts, where the party may be 
 presumed, from his entering into the contract, to have consented to 
 such mode of enforcing it. Bank of Columbia v. Okeley, 4 Wheat. 
 (U. S.) 235.® As to enforce recognizances or the bonds of sheriffs. 
 Gildersleeve V. The People, 10 Barb. (N. Y.) 35; Murry v. Askew, 
 6 J. J. Marsh. (Ky.) 27; Cr eight on v. Johnson, 6 Litt. (Ky.) 240. 
 
 Summary convictions for petty offenses. Byers v. Common- 
 wealth, 42 Pa. St. 89. To determine the settlement of paupers. 
 Shirley v. Lunenburg, 11 Mass. 379. Upon judgments of courts mar- 
 tial under military laws. Rawson v. Brown, 18 Maine 216.* 
 
 Ct. 966 (1896). Compare Lake Erie, W. & St. L. R. Co. v. Heath, 9 Ind. 558 
 (1857) ; Jiivinall v. Jamesburg D. D., 204 111. 106, 68 N. E. 440 (1903) ; Pusey 's 
 Appeal . 83 Pa. St. 67 (1876) ; King v. Greenwood Cent. Co., 67 Ohio St. 240, 
 65 N. K 882 Tl902)r^ ~^ 
 
 *Mason v. State, 58 Ohio St. 30, 50 N. E. 6, 41 L. R. A. 291 (1898) ; State 
 V. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. 39 (1897) ; State v. Moores, 
 56 Nebr. l, 76 N. W. 530 (1898) ; Wheeler v. Caldwell, 68 Kans. 776, 75 Pac. 
 1031 (1904) ; Contra: State v. McDonald, 108 Wis. 8, 84 N. W. 171, 81 Am. 
 St. 878 (1900). 
 
 ^Mayer v. Wilkinson, 52 Nebr. 764, 73 N. W. 214 (1897). 
 
 *Weil v. Jaeger, 174 III. 133, 51 N. E. 196 (1898) ; In re Christensen, loi 
 Fed. 243 (1900) ; Vollkommer v. Frank, 107 App. Div. 594, 95 N. Y. S. 324 
 (1907), affirmed 205 U. S. 521, 51 L. ed. 911 ; O'Neill v. Glover, 71 Mass. 144 
 (185s) ; Kempton v. Saunders, 130 Mass. 236 (1881) ; Merrill v. Bowler, 20 
 R. I. 226, 38 Atl. 114 (1897). 
 
 ^The joinder of an equitable cause of action with one purely legal does 
 not deprive the defendant of the right to a jury trial. Van Deventer v. Van 
 Deventer, 32 App. Div. 578, 53 N. Y. S. 236 (1898) ; Myers v. Knabe, 4 Kans. 
 App. 484, 46 Pac. 472 (1896) ; Sherman V. Randolph, 13 Okla. 224, 74 Pac. 102 
 (1903). But see Guaranty Trust Co. v. Robinson, 31 Misc. 277, 64 N. Y. .S. 366 
 (1900) ; Bank of .Spartanburg v. Chickasaw Soap Co., 70 S. Car. 253 (1904). 
 Federal practice did not permit the joinder of an equitable with a legal cause 
 of action. Scott v. Neely, 140 U. S. 106, 35 L. ed. 358, 11 Sup. Ct. 712 (1891). 
 But see Act of Congress of Mar. 3, 1915, ch. 90, 38 Stat. L. 956. 
 
 " Kruf/h v. Lycoming F. Ins. Co., 77 Pa. St. 15 (18 74)- Parties may consent 
 to arbitration, but compulsory arbitration violates the right. Rhit ^fs v. Cla rk, 
 . 51 Pa St q6 (1866) : Cutl er v Richlev. mi Pa. St. 10 5, 2^; Atl. 96 (1892). 
 
 "People v. Daniel," 50 N. Y. 274 (1872) ; :itate v. Wagener,^ 74 Minn. 
 518, 77 N. W. 424, 42 L. R. A. 749, 73 Am. St. 369 (1898).
 
 334 
 
 TRIAL 
 
 In proceedin{;s for the assessment and collection of taxes. 
 McCarrol's Lessee v. Weeks, $ Hayw. (Tenn.) 246; Cozvles v. 
 Brittain, 2 Hawks (N. Car.) 204; Harper v. Tozvn of Elberton, 23 
 Ga. 566; Nezv Tozvn Cut v. Seabrook, 2 Strobh. (S. Car.) 560; 
 Crandall v. James, 6 R. I. 144." 
 
 The general principle upon which tliese cases were decided was 
 tliat tiie several constitutions intended only to preserve the right of 
 trial by jury in those cases where it existed at the adoption of the 
 respective constitutions, and that rights of persons or pro])crty com- 
 ing in question in those controversies in which, before that time, the 
 right was not recognized do not come within the meaning of the 
 constitutional guaranties. This court, in WJiallon v. Bancroft, 4 
 ]\Iinn. 109, said (p. 113) : "Wherever the right of trial by jury could 
 be had under tlie territorial laws, it may now be had, and the legis- 
 lature can not abridge it ; and those cases which were triable by the 
 court, without the intervention of a jury, may still be so tried." 
 
 It is not, of course, to be understood from this that the right to 
 a jury trial will depend on the form of the action or proceeding, or 
 tliat the legislature may, by changing the form of proceeding or 
 remedy, take that mode of trial from those rights to which the con- 
 stitution intended to secure it. The Constitution of Vermont pro- 
 vides : "Trial of issues proper for the cognizance of a jury, in the 
 Supreme or county courts, shall be by jury, except when parties 
 otherwise agree." This, though differently expressed, is substan- 
 tially tlie same as the provision in the constitution of this state. The 
 Supreme Court of Vermont, discussing this clause in Plimpton v. 
 Tozi'n of Somerset, 33 Vt. 283, said : "All rights, whether then or 
 thereafter arising, which would properly fall into those classes of 
 rights to which, by the course of the common law, the trial by jury 
 was secured, were intended to be embraced within this article." This 
 is the best definition that we have found of the classes of cases to 
 which the trial by jury is secured, for it makes the right to such a 
 trial depend on the nature and character of the controversy, and not 
 on the form of action or proceeding in which it is to be determined. 
 
 The judgment, under the law of 1874, is made conclusive as to 
 everything except tlie jurisdiction of the court. It has this effect, 
 not only as between the state and the owner of the land, but as to all 
 parties, whenever or however the question may arise. It is evident 
 that if it concludes the owner for all time, as it certainly does, as to 
 rights which, by the law existing when the constitution was adopted, 
 were to be tried by jury, it deprives the owner of that constitutional 
 right unless he may have that trial before judgment. 
 
 At the time of the adoption of the constitution the owner, when- 
 ever, in an action at law, the c[uestion of title under tax laws might 
 arise, had the right to a jury trial of certain issues upon which the 
 title depended. But it was not every matter involved in the tax 
 proceedings w^hich he could have so tried. There will, and always 
 must, be some matters as to which the proceedings themselves are 
 
 ^"Ball V. Ridge Copper Co., 118 Mich. 7, 76 N. W. 130 (1898) ; State v. 
 Bley, 162 Ala. 239, 50 So. 263 (1909).
 
 MILLE LACS COUNTY V. MORRISON 335 
 
 necessarily final, and as to which no further hearing can be allowed. 
 For instance, at what value the property should be assessed, or what 
 rate of tax should be levied, or for what purposes taxes should be 
 raised, are matters which, of necessity, can not be submitted to a 
 jury. No revenue system ever devised has provided for the inter- 
 vention of a jury to determine those things, either before or after 
 sale. No such system could stand. In McCarrol's Lessee v. Weeks, 
 5 Hayw. (Tenn.) 246, which arose under a law somewhat similar to 
 tJie law of 1874, and in which the court appear to go further than we 
 are disposed to, the court, speaking of proceedings for assessing 
 taxes, very justly said: "It is certainly true that they have the 
 character of summary proceedings, and it is equally true that they 
 must, of necessity, be so ; for, if the government were necessitated 
 to take the cautious and tedious steps of the common law in giving 
 personal notice, making up pleadings, and having a jury trial, it 
 would cease to exist. All governments, to raise their revenue, lay 
 taxes on property, and their proceedings necessarily must be sum- 
 mary and in rem as to that." 
 
 The only issues which, upon a question of title under a tax sale, 
 any party could in any case have tried by a jury, were those that 
 might be made upon the authority to tax — that is, whether the tax 
 was laid upon property subject to taxation; upon the performance, 
 by the proper officers, of tlie things made by law essential to the 
 validity of the tax or sale ; and upon the nonpayment of the tax. 
 In no case could he have a jury try and determine how much the tax 
 ought to have been. 
 
 It is true the act does not expressly provide for a jury trial ; but 
 it must be presumed that the legislature did not intend to exclude it 
 where it is necessary to the validity of the proceedings and the con- 
 clusive effect of the judgment. Under its general powers the district 
 court may direct a jury trial of any issues in which the parties have 
 a right to that mode of trial, in any proceedings pending before it ; 
 and when, in these tax proceedings, either of the two issues we have 
 mentioned is made, and a jury trial demanded, may direct the matter 
 to be tried at a general term.^^ 
 
 No such issue Is raised in this case. The answer relates only 
 to the acts and omissions of the assessing officers and board of equal- 
 ization; and if the facts were as pleaded, and by reason thereof the 
 taxes appearing on the list against the property were too high, it was 
 the duty of the court merely to reduce the taxes to what it should 
 deem the proper amounts. 
 
 Judgment affirmed.^^ 
 
 ^State V. Jackson, 56 W. Va. 558, 49 S. E. 465 (1904). 
 
 *""It is the right of trial by jury which exists and is preserved, and 
 what that right is is a purely historical question, a fact to be ascertained like 
 any other social, legal or political fact. As the constitution speaks from the 
 time of its adoption, the fact of the right to jury trial, which is ascertained 
 to have existed at that time, must necessarily determine the meaning of the 
 clause which recognizes and preserves that right." Pomeroy's note to Sedg- 
 wick's Construction of Statutory and Constitutional Law (2d ed.), p. 487. 
 See, also, Cooley's Constitutional Limitations (6th ed.), p. 505; Copp v.
 
 33t) TRIAL 
 
 ROSS V. McCALDIN. 
 
 Court of Appeals of New York, 1909. 
 
 195 A''. Y. 210." 
 
 WiLLiARD Bartlett, J. : This is a common-law action to recover 
 •an indebtedness of $1,000 alleged to be due to the plaintiff from the 
 defendant. The principal plea was payment. Evidently anticipating 
 .this plea the plaintiff in his complaint alleged that he had accepted 
 two promissory notes from the defendant on account of his debt 
 which had never been paid and that he had given to the defendant a 
 receipt for $1,000 in full settlement of all liability, which receipt he 
 asked to have vacated, annulled and rescinded. This prayer for 
 relief was followed by a demand for judgment in the sum of $1,000, 
 with interest and costs. 
 
 The allegations of the complaint in regard to this receipt do not 
 suffice to turn the action into a case for the cognizance of a court of 
 equity. The receipt is not a contract. Ryan v. Ward, 48 N. Y. 204. 
 It is merely a declaration which the defendant might use as evidence 
 in support of his plea of payment. The cases cited by the respondent 
 in which equity has entertained jurisdiction of suits to cancel releases 
 have, therefore, no application here. We are clearly of opinion that 
 this action is a common-law action, in which the defendant was en- 
 titled to a jury trial provided he made a seasonable demand therefor 
 
 Henniker, 55 N. H. 179, 20 Am. Rep. 194 (1875) ; Whitehurst v. Coleen, 53 
 111. 247 (1870) ; Ranningv^aylor, 24 Pa. St. 289 (1855) ; Lawr ence v. B orm, 
 g6 Pa. St. 22 .^ (iST^TTCafital T. Co. v. Hof, 174 U. S. i, 43T:. ed. 873, 19 
 Sup. Ct. 580 (1898) ; Bucknam v. Bucknam, 176 Alass. 229, 57 N. E. 343, 49 
 L. R. A. 735 (1900) ; Drady v. District Court, 126 Iowa 345, 102 N. W. 115 
 (1905) ; Gunn v. Union R. Co., 27 R. I. 320, 62 Atl. 118, 2 L. R. A. (N. S.) 
 362 (1905) ; Mead v. Cutler, 194 Mass. 277, 80 N. E. 496 (1907) ; Robison v. 
 Wayne Circuit Judges, 151 Mich. 315, 115 N. W. 682 (1908). 
 
 _A statute providing that in civil actions a party shall not be entitled to 
 a trial by jury unless he files within a prescribed time a demand for such a 
 trial is constitutional. Foster v. Morse, 132 Mass. 354, 42 Am. Rep. 438 (1882) ; 
 Clark v. Baker, 192 Mass. 226, 78 N. E. 455 (1906); Goodman v. Superior 
 Court of Santa Clara County, 8 Cal. App. 22,2, 96 Pac. 395 (1908) ; Heard v. 
 Kennedy, 116 Ga. 36, 42 S. E. 509 (1902) ; Condon v. Royce, 68 N. J. L. 222, 
 52 Atl. 630 (1902) ; People v. Judge of Superior Ct., 41 Mich. 31, i N. W. 985 
 (1879). In civil cases the right to a jury trial may be waived. Baird v. Mayor 
 74 N. Y. 382 (1878) ; Palmer v. Dreii', 59 N. H. 594 (1879) ; Lunnnis^^l^Mi^ 
 S^ndy Land &-c. Co., 188 Pa. St. 27, 41 Atl. 319 (1898) ; Claussenius v. Clatis- 
 senius, 179 111. 545, 53 N. E. 1006 (1899) ; Chessman v. Hale, 31 Mont. 577, 79 
 Pac. 254, 68 L. R. A. 410 (1905) ; Brooklyn H. R. Co. v. Brooklyn C. R. Co., 
 105 App. Div. 88, 93 N. Y. S. 849 (1905) ; New York Code o£ Civil Procedure, 
 § 968, provides : "In each of tlie following actions, an issue of fact must be 
 tried by a jury unless a jury trial is waived, or a reference is directed: i. An 
 action in which the complaint demands judgment for a sum of money only. 
 2. An action of ejectment; for dower; for waste; for a nuisance; or to re- 
 cover a chattel." 
 
 As to divorce, see Bishop on Marriage and Divorce, § 256; Poivell v. 
 Powell, 104 Ind. 18, 3 N. E. 639 (i88s) ; Marchmont v. Marchmont, I Sw. & 
 Tr. 228 (1858) ; Misjmj^jillisorhA(> Pa. St. 32i_Xi863). 
 
 "The statemlfnt of facfs and"afgufnents of counsel are omitted. The de- 
 cisioi reverses 123 N. Y. App. Div. 13. '
 
 ROSS V. M'CALDIN 337 
 
 and did not waive his right thereto in any of the modes prescribed 
 by the statute relating to that subject.^* 
 
 The action was moved for trial at a special term of the Supreme 
 Court in Kings county. At tlie outset of the trial the following pro- 
 ceedings took place : 
 
 "Defendant's counsel : Your honor will see by reading the com- 
 plaint that there is no equitable cause of action set out; under the 
 former practice the proper course would have been, if there was no 
 equitable cause of action set up, to ask for a dismissal of the com- 
 plaint, but under the decisions since and the provisions of the code 
 allowing different causes of action to be united, whether equitable or 
 not, it has been held that the court must determine from the allega- 
 tions of the complaint, not from the prayer for relief, what the char- 
 acter of the action is. Your honor will see, after looking at this 
 complaint, that the relief demanded is a judgment for a sum of 
 money, and I think, if your honor will read the complaint, you wiP 
 see that there is no equitable cause of action set forth. 
 
 "The Court : I think I will hear the proofs and decide the ques- 
 tion afterwards. 
 
 "Motion denied. Defendant excepts." 
 
 The motion thus made by the counsel for the defendant, to the 
 denial of which he duly excepted, was a demand that the case be sent 
 to a trial term to be tried by a jury. This clearly appears subse- 
 quently in the record by Vv'hat occurred after the plaintiff had intro- 
 duced his testimony and rested. 
 
 "Defendant's counsel renewed motion on the grounds already 
 stated to dismiss the complaint or to send tlie same to trial term to be 
 tried by a jury. Motion was denied. Defendant excepted." This 
 statement plainly shows that the learned judge at special term must 
 distinctly have understood the defendant's counsel to have demanded 
 a jury trial unless the court was willing to dismiss the complaint on 
 the ground that it did not state a cause of action cognizable by a 
 court of equity. The course pursued by counsel for the defendant 
 was that approved by this court in Hand v. Kennedy, 83 N. Y. 149, 
 155, and an exception was duly taken to the denial of the motion in 
 each instance. These exceptions raise a question of law for the con- 
 sideration of this court. We think that they were well taken and 
 entitled the defendant to a reversal of the judgment on the ground 
 that he had a right to have the case tried by a jury. He asserted that 
 right in due time and did nothing which could fairly be construed 
 into a waiver thereof. 
 
 The judgment should be reversed and a new trial granted, costs 
 to abide tlie event. 
 
 "New York Code of Civil Precodure, § 1009. Herh v. Metropolitan 
 Hospital & Dispensary, 80 App. Div. 145, 80 N. Y. S. 552 (1903). 
 
 "A party can not be held to have waived his constitutional right to a 
 jury trial unless an intention to do so appears affirmatively or by necessary 
 inference from unequivocal acts or conduct." Harsey v. McMullcn, 109 Minn. 
 ZZ2, 123 N. W. 1078 (1909). Compare Gable v. Sivohe, 64 Nebr. 838, 90 N. W. 
 919 (1902), with Chessman v. Hale, 31 Mont. 577, 79 Pac. 254, 68 L. R. A, 
 410 (1904). 
 
 22 — Civ. Prog.
 
 338 TRIAL 
 
 CuUcn, Ch. J., Gray, Edward T. Bartlctt and Hiscock, JJ., con- 
 cur ; \\'crner, J-, dissents ; Chase, J., absent. 
 Judgment reversed.^" 
 
 "The constitutional provision that the riftht of trial by jury shall remain 
 inviolate does not concern issues of fact in equity. Mcridcn Sav. Bank v. 
 M'Connack, 79 Conn. 260, 64 Atl. 338 (1Q06) ; Bcmis v. Armour Packing Co., 
 10=, Ga. 203, 31 S. E. 173 (1809) ; Canaran y. Payc , i4__Pa*_SllIier. Ct.. 91 
 (1907) ; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557 (1898) ; Ely v. Coont::, 
 167 Mo. 371, 67 S. W. 299 (1902); Noble v. Learned, 153 Cal. 245, 94 Pac, 
 1047 (1908) ; LaceUcs v. Clark, 204 IMass. 362, 90 N. E. 875 (1910). In juris- 
 diciions where legal and equitable causes of action are joined in the same 
 complaint a party is not deprived thereby of his riftht to have a trial by jury 
 of the legal cause of action. Davis v. Morris, 36 N. Y. 569 (1867) ; Hudson 
 V. Carv/, 44 N. Y. 553 (1871) ; Siernhergcr v. McGovern, 56 N. Y. 12 (1874) ; 
 Ream's v. Spann, 28 S. Car. 530, 6 S. E. 325 (1887) ; Hughes v. Dunlap, 91 
 Cal. 385, 27 Pac. 642 (1891) ; Abernathy v. Allen, 132 Ind. 84, 31 N. E. 534 
 (1892) : Where, however, the cause of action is equitable, but legal relief is 
 sought as an incident to the equitable cause merely, then neither party is enti- 
 tled to a jury trial as a matter of right. Koeper v. Louisville, 109 Minn. 519, 
 124 N. \V. 218 (1910). In bringing an action of a distinctly equitable character 
 the plaintiff may be held to waive his right to a jury trial. Davison v. 
 Associates, 71 N. Y. 333 (1877); Cogswell v. A'". Y., N. H. & H. R. Co., 
 105 N. Y. 319, II N. E. 518 (1887) ; Loeb v. Royal Arcanum, 198 N. Y. 180, 
 91 N. E. 547 (1910). But such proceeding by the plaintiff will not deprive the 
 defendant of his right to a jury trial if otherwise entitled thereto. Wheelock 
 V. Lee, 74 N. Y. 495^ (1878) ; Sommer v. A^. Y. El. R., 60 Hun 148, 14 N. Y. S. 
 619, 38 N. Y. St. 419 (1891). 
 
 In England, under the rules of the supreme court, the mode of trial is 
 regulated by order XXXVI, rules 2 to 8. In slander, libel, false imprisonment, 
 malicious prosecution, seduction or breach of promise of marriage, either 
 party may have a trial by jury on giving notice. In all other cases the trial 
 ■will'be by the judge alone unless an order be made for a jury trial. Such 
 an order will be made if either party applies in proper time, unless the action 
 is one w-hich could, without the consent of the parties, have been tried without 
 a jury before the Judicature Act of 1873, or unless it appears that the case 
 involves a prolonged examination of documents or accounts or a scientific 
 or local investigation which can not conveniently be made by a jury. Timson 
 V. Wilson, L. R. 38 Ch. Div. 72 (1888) ; Jenkins v. Bushby, L. R. 1891, I 
 Ch. Div. 484. 
 
 In equity the chancellor may award an issue to be tried at law before 
 a jury, for the purpose of informing the conscience of the court upon doubtful 
 questions of fact, but the granting of such an issue lies within the sound 
 discretion of the court. Raymond v. Flavel, 27 Ore. 219, 40 Pac. 158 (1895) ; 
 Canavi m J^ Pavg . 34 Pa Super. Ct >-QJL_Xi907) ; Biggersiaff v. Biggerstaff, 
 i^oTll. 407, 54 N. E. 333 (1899) ; Nashville R. & L. Co., v. Bnnn, 168 Fed. 862 
 (1909) ; Clark v. Roberts, 206 Mass. 235, 92 N. E. 461 (1910). An issue, 
 except where it is directed by statute, is merely advisory. If the chancellor 
 is not satisfied with the verdict he may set it aside and award a new trial 
 of the issue, or he may disregard it and proceed to decide the case without 
 the intervention of a jury. Carter v. Jeffries, no Va. 735, 67 S. E. 284 (1910).
 
 FIRST NAT. BANK OF KOCK SPRINGS V. FOSTER 339 
 
 FIRST NATIONAL BANK OF ROCK SPRINGS v. FOSTER. 
 
 Supreme Court of Wyoming, 1900. 
 
 9 Wyo. 157." 
 
 Corn, J. : Defendant in error brought suit against plaintiff in 
 error upon a lost certificate of deposit. Under the instruction of 
 the court that three-fourths of the jury might concur in and return 
 a verdict, a verdict for the plaintiff was returned, signed by ten of 
 the jurors, the other two refusing to concur. 
 
 The defendant below objected to the verdict being received for 
 the reason that it was not unanimous, and therefore not a lawful 
 verdict. The objection was overruled and the verdict entered, and 
 the defendant took its exception. Our Declaration of Rights, art. 
 I, sec. 9 of the constitution provides: ''The right of trial by jury 
 shall remain inviolate in criminal cases, but a jury in civil cases in 
 all courts, not of record, may consist of less than twelve men, as may 
 be prescribed by law. Hereafter a grand jury may consist of twelve 
 men, any nine of whom concurring may find an indictment, but the 
 legislature may change, regulate, or abolish the grand jury system." 
 
 Section 3651, Rev. Stat. 1899, provides that: "In all civil cases 
 in any of the courts in the state of Wyoming, which shall be tried 
 by a jury, three-fourths of the number of the jurors sitting in any 
 such case may concur in and return a verdict in said case, and such 
 verdict shall have the same force and effect as though found and 
 returned by all tlie jurors sitting in said case; but whenever such 
 verdict is found and returned by a less number than twelve, said 
 verdict shall be signed by each juror concurring therein." The 
 plaintiff in error insists that the statute is in violation of the section 
 of the constitution above quoted, and this is the only imporant 
 question presented. 
 
 No other of the state constitutions, so far as we are advised, 
 contains precisely the same provision as ours, except that of Colo- 
 rado. But the general question here involved has repeatedly been 
 before the courts of this country for consideration, and certain 
 propositions which lie at the threshold of the discussion are well 
 settled. It is conceded that, in almost all of the states, the legisla- 
 ture may lawfully exercise not only such powers as are specifically 
 enumerated, but that it is invested with the entire legislative power 
 of the state except as restrained by the provisions of the constitution. 
 And our constitution, in line with most of others, art. 3, sec. i, 
 provides that "the legislative power shall be vested in a senate and 
 house of representatives, which shall be designated 'The legislature 
 of the state of Wyoming.' " It is also so well settled as to require no 
 reference to authorities that, when the constitution secures to liti- 
 gants the right of trial by jury, the legislature has no power to deny 
 or impair such right. The courts have uniformly held also that the 
 
 "The statement of facts, arguments of counsel and part of the opinion 
 are omitted, as v/ell as the opinion denying a rehearing.
 
 340 TKIAT. 
 
 word "jury" as used in our constitutions, when not otherwise modi- 
 fied, means a common-law jury composed of twelve men, whose 
 verdict shall be unanimous. As stated by the Supreme Court of 
 ^Minnesota: "The expression 'trial by jury' is as old as Magna 
 Charta, and has obtained a definite historical meaning which is well 
 understood by all English-speaking peoples ; and, for that reason, 
 no American constitution has ever assumed to dcfme it. V/e are 
 tlierefore relegated to the history of the common law to ascertain its 
 meaning. The essential and substantive attributes or elements of 
 jury trial are and always have been number, impartiality and unan- 
 imity. The jury must consist of twelve; they must be impartial and 
 indifferent between the parties; and their verdict must be unan- 
 imous." Lommen v. Minneapolis Gaslight Co., 65 ]\Iinn. 196. An 
 extended list of the cases is given in the note to State v. Bates, 14 
 Utah 293, 43 L. R. A. 48.^^ 
 
 It is unquestioned also that at the adoption of the constitution 
 tlie right existed in Wyoming as at common law ; that is, in felonies 
 and in all common law cases in the district court, our court of gen- 
 eral common-law jurisdiction, the right was to an impartial jury of 
 tvv-clve men and a unanimous verdict. It is also conceded that the 
 people of the state had the power by their constitution to preserve 
 or abrogate the right, or make such modifications of it and establish 
 such modes of trial as might be deemed expedient. These general 
 propositions being settled, the question before us is to ascertain to 
 what extent the right of trial by jury as above defined, is preserved 
 by the section of tlie Declaration of Rights above quoted. 
 
 As to the right in criminal cases, there is no room for construc- 
 tion. The language is express that it shall remain inviolate ; that is, 
 that a person charged with crime has the right as heretofore to 
 demand a trial by twelve impartial men whose verdict must be 
 unanimous in order to support a judgment. In civil cases the lan- 
 guage is also express as to the matter of number, one of the three 
 essentials of a jury trial at common law, and the legislature is 
 empowered to provide by law for juries consisting of less than 
 twelve. There is no room for construction. But there is no specific 
 mention in the section or anywhere in the constitution of the third 
 essential of unanimity. Is it then to be deemed a matter unprovided 
 
 *'Y. B. 41 Edw. I., 31; Y. B. 41 Ass. li; Tredymmock v. Ferryman, Cro. 
 Car. 259 (1632); Work V. State, 2 Ohio St. 296, 59 Am. Dec. 671 (1853); 
 Opinion of Justices, 41 N. H. 550 (i860); Ptimpton v. Sommerset, 33 Vt. 
 283 (i860); Whallon v. Bancroft, 4 Minn. 109 (i860); Vaughn v. Scade, 
 SO Mo. 600 (i860) ; Recce v. Knott, 3 Utah 452, 24 Pac. 757 (1861) ; Campan 
 V. Detroit, 14 Mich. 276 (1866); Whitelmrst v. Coleen, 53 111. 247 (1870); 
 Lovings v. Norfolk & IV. R. Co., 47 W. Va. 582, 35 S. E. 962 (1900). And 
 see In re Pe nnsylvania Hall, 5 Pa. St. 204^ ClS74) ; Stillivcll v. Kellog, 14 
 \\'is~45iTiB6iT; Berry v. Chamberlain, 53 N. J. L. 463, 23 Atl. 115 (1891) ; 
 Skinner V. Allison, 127 App. Div. 15, in N. Y. S. 264 (1908). A verdict 
 rendered by thirteen jurors unless by consent is erroneous. Whitehurst v. 
 Davis, 2 Hayw. (N. Car.) 113 (1800) ; Wolfe v. Martin, i Flow. (Miss.) 30 
 (1834) ; McConnick v. Brook field, 4 N. J. L. 69 (1818) ; Muirhead v. Evans, 
 6 Exch. 447 (1851) semble. ; State v. Hndkins, 35 W. Va. 2.17, 13 S. E. 367 
 (1801); Contra, Tillman v. Ailles, 5 S. & M. (Miss.) 272) (1845)- And see 
 Ross V. Ncal, 7 T. B. Mon. (Ky.), 407 (1826).
 
 FIRST NAT. BANK OF ROCK SPRINGS V. FOSTER 34I 
 
 for, a right not preserved, leaving the legislature at full liberty to 
 enact such law^s upon the subject as it may deem proper, unrestrained 
 by the constitution ? We do not think so. 
 
 The whole section must be construed together. The subject of 
 it is the right of trial by jury, and we think the intention of the 
 framers reasonably appears to have been to preserve the right invio- 
 late in criminal cases, and to point out, by way of permission to the 
 legislature, wherein the common law might be invaded by statute in 
 civil cases. It is as if the constitution had said : "With reference to 
 the right of trial by jury, it is provided that in criminal cases it shall 
 remain in all respects as heretofore. In civil cases it shall remain 
 as heretofore, except that the legislature may provide for a number 
 less than twelve to constitute a jury." There is no other reasonable 
 construction, for if a rule is to be applied that the legislature have 
 power to enact any laws upon the subject unless prohibited in express 
 language, then they may entirely abolish the right and practice of 
 trial by jury in civil cases, for they are not expressly prohibited 
 from so doing. Yet, there appears nowhere in the constitution any 
 intention to abrogate tlie right or to substitute any other mode of 
 trial. But the form of statement, when vievv-ed in the light of tlie 
 surroundings, makes it manifest that the intention was to preserve 
 the right. The provision in regard to number is by way of permis- 
 sion, indicating clearly that, in the judgment of the framers of the 
 constitution, permission was necessary. It is also stated as an excep- 
 tion, the word "but" being used in its very customary meaning of 
 "except." That it is stated as an exception is also shov/n by the use 
 of the word "jury" itself. It can not be supposed that the convention 
 were ignorant of the legal meaning of tlie word, but they must be 
 presumed to have used it in its correct legal sense of a body of twelve 
 impartial men whose verdict must be unanimous. And it is evident 
 they did so use it. It is so used in the first clause securing the right 
 inviolate in criminal cases. The provision that the number may be 
 less than twelve is clear evidence that the word as used referred to 
 the body universally known to be composed of twelve men. It is 
 permission to the legislature to make a designated change in the 
 common law jury, to reduce the common-law number, twelve. It is 
 not essential that a prohibition upon the legislature should be in 
 express terms. It may be by implication. Page v. Allen, 58 Pa. St. 
 345. It will scarcely be contended that an act would be valid provid- 
 ing for the trial of causes by a jury chosen by the plaintiff, or by the 
 party by whom the jury was first demanded, thus disregarding the 
 element of impartiality. Yet by the argument of counsel there is no 
 prohibition upon such legislation. And it is indeed no more pro- 
 hibited than a disregard of the element of unanimity is prohibited. 
 Neither is prohibited except by the use of the word "jury," the 
 plainly implied provision for "trial by jury," which, as matter of 
 definition, necessarily involve and include both impartiality and 
 unanimity of verdict. * * * 
 
 In order to sustain the constitutionality of this section of the 
 statute, it is necessary for this court to say that there is no right of 
 trial by jury in civil cases under the constitution in this state, but
 
 34-J TRIAL 
 
 that each succeeding session of tlie legislature may invent and estab- 
 lisii any mode of trial that the whim of the hour or any supposed 
 cxij;oncics of convenience or economy might dictate. Under such 
 a ruling it would be competent for the legislature to provide that 
 the judge of the district should call into court the partisan board of 
 county connnissioncrs and submit to them for decision by a majority 
 vote all civil causes pending in any county. It is perfectly clear that 
 no such revolutionary destruction of ancient landmarks was ever con- 
 templated. The whole tenor of tlie instrument makes it plain that the 
 ancient metliod of trial by jury was not to be abandoned, but was to 
 be retained and preserved except as designated in the constitution 
 itself, and what the essentials of that method are, is not a matter of 
 construction or conjecture. We tliink the statute is clearly uncon- 
 stitutional. 
 Reversed. ^^ 
 
 SECTION 2. THE JURY. 
 
 (a) Jury Process. 
 3 Blackstone's Commentaries 352. 
 
 When an issue is joined, by these words, "and this the said A 
 prays may be inquired of by the country," or, "and of this he puts 
 himself upon the country — and the said B does the like," the court 
 awards a writ of venire facias upon the roll or record, commanding 
 the sheriff "that he cause to come here, on such a day, twelve free 
 and lawful men, lihcros et legales homines, of the body of his 
 county, by whom the truth of the matter may be better known, and 
 who are neither of kin to the aforesaid A nor the aforesaid B, to 
 recognize the truth of the issue between the said parties." And such 
 writ was accordingly issued to the sheriff. 
 
 Thus the cause stands ready for a trial at the bar of the court 
 itself; for all trials were there anciently had, in actions which were 
 there first commenced; which then never happened but in matters 
 of weight and consequence, all trifling suits being ended in the court- 
 
 **Accord : Denver v. Hyatt, 28 Colo. 129, 63 Pac. 403 ( 1900) . Uhanimity 
 is an essential feature of a jur\' trial at common law. A statute which de- 
 stroys this feature abridges the right to a jury trial. American Pub. Co. v. 
 Fisher, 166 U. S. 464, 41 L. ed. 1079, 17 Sup. Ct. 618 (1896) ; Kleinschmidt 
 V. Dunphy, i Mont. 118 (1869) ; Cloud v. Morgan, 7 Kans. App. 213, 52 Pac. 
 896 (1898) ; May v. M. & M. R. Co., 3 Wis. 197 (1854). In civil cases the 
 right to a trial by a jury of twelve may be v/aived by consent. Roach v. 
 Biakey, 89 Va. 767, 17 S. E. 228 (1893); Gillespie v. Benson, 18 Cal. 409 
 (1861) ; Raleigh & G. R. Co. v. Bradshaw, 113 Ga. 862, 39 S. E. 555 (1901) ; 
 Krunh v. Lyco jmnjj_E^nA^ Co.. 77 Pa. St. 1 =^ (1874) ; Mi ller v. Cambria Co., 
 25 Pa. Super. "Ct. 591 (1^*04) ; Kanorowski v. People, 113 111 App. 468 T1904) ; 
 TJmfed States v. Ramsey, 158 Fed. 488 (1907)- Under the constitution of 
 Missouri as amended, a law authorizing a verdict by nine or more of a jury 
 of twelve is valid. Gabbert v. Chicago R. I. & P. R. Co., 171 Mo. 84, 70 S. W. 
 891 (igo2) ; Taussig v. St. Louis & K. R. Co., 186 Mo. 296, 85 S. W. 378 
 (1904).
 
 THE JURY 343 
 
 baron, hundred, or county courts : and indeed all causes of great im- 
 portance or difficulty are still usually retained upon motion, to be 
 tried at the bar in the superior courts. But when the usage began to 
 bring actions of any trilling value in the courts of Westminster Hall, 
 it was found to be an intolerable burden to compel the parties, wit- 
 nesses and jurors to come from Westmoreland perhaps or Cornwall, 
 to try an action of assault at Westminster. A practice therefore very 
 early obtained, of continuing the cause from term to term, in the 
 court above, provided the justices in eyre did not previously come 
 into the county where the cause of action arose ; and if it happened 
 that they arrived there within that interval, then the cause was 
 removed from the jurisdiction of the justices at Westminster to that 
 of the justices in eyre. Afterwards, when the justices in eyre were 
 superseded by the modern justices of assize (who came twice or 
 thrice in the year into the several counties, ad capiendas assisas, to 
 take or try writs of assize, of morf d'ancestor, novel disseisin, nui- 
 sance and the like), a power was superadded by statute Westm. 2, 
 13 Edw. I, ch. 30, to these justices of assize to try common issues in 
 trespass, and other less important suits, with direction to return 
 theni (when tried) into the court above, where alone the judgm.ent 
 should be given. And as only the trial, and not the determination, 
 of the cause, was now intended to be had in the court below, tliere- 
 fore the clause, of nisi priiis was left out of the conditional contin- 
 uances before mentioned, and was directed by the statute to be 
 inserted in the writs of venire facias; that is, "that the sheriff should 
 cause the jurors to come to Westminster (or wherever the king's 
 court should be held) on such a day in Easter and Michaelmas 
 terms; nisi prius, unless before that day the justices assigned to take 
 assizes shall come into his said county." By virtue of which the 
 sheriff returned his jurors to the court of the justices of assize, 
 v/hich was sure to be held in the vacation before Easter and Michael- 
 mas terms; and there the trial was had. 
 
 An inconvenience attended this provision: principally because, 
 as the sheriff made no return of the jury to the court of Westmin- 
 ster, the parties were ignorant who tliey were till they came upon 
 the trial, and therefore were not ready with their challenges or ex- 
 ceptions. For this reason, by the statute, 42 Edw. Ill, ch. 11, the 
 method of trials by nisi prius was altered ; and it was enacted that 
 no inquests (except of assize and gaol-delivery) should be taken by 
 writ of nisi prius, till after tlie sheriff had returned the names of the 
 jurors to the court above. So that now in almost every civil cause 
 the clause of nisi prius is left out of the writ of venire facias, which 
 is the sheriff's warrant to warn the jury; and is inserted in another 
 part of the proceedings, as we shall see presently. 
 
 For now the course is, to make the sheriff's venire returnable 
 on the last return of the same term wherein issue is joined, viz., 
 Hilary or Trinity terms; which, from the making up of the issues 
 therein, are usually called issuable terms. And he returns the names 
 of the jurors in a panel (a little pane, or oblong piece of parchment) 
 annexed to the writ. This jury is not summoned, and therefore, not 
 appearing at tlie day, must unavoidably make default. For which
 
 3+4 TRIAL 
 
 reason a compulsive process is now awarded against the jurors, 
 called in the common pleas a writ of lialu^as corpora jnratorum, 
 and in tlic king's bench a distringas, commanding the sheriff to have 
 their bodies or to distrain them by their lands and goods, that they 
 may appear upon the day appointed. The entry therefore on the roll 
 or record is, "that the jury is respited, through defect of the jurors, 
 till the first day of the next term, then to appear at W'cstminstcr, 
 unless before that time, viz., on Wednesday the fourth of March, 
 the justices of our lord the king, appointed to take assizes in that 
 county, shall have come to Oxford, that is, to the place assigned for 
 holding the assizes." And thereupon the writ commands tlie sheriff 
 to have their bodies at Westminster on the said first day of next 
 term, or before the said justices of assize, if before that time they 
 come to Oxford; viz., on the fourth of Alarch aforesaid. And, as 
 the judges are sure to come and open the circuit commissions on the 
 day mentioned in the writ, the slieriff returns and summons the jury 
 to appear at the assizes, and there the trial is had before the justices 
 of assize and nisi prius: amon^ Avhom (as hath been said) are 
 usually two of the judges of the courts of Westminster, the whole 
 kingdom being divided into six circuits for this purpose. And tlius 
 we may observe that the trial of common issues, at nisi prius, which 
 was in its original only a collateral incident to the original business 
 of the justices of assize, is now, by the various revolutions of prac- 
 tice, become their principal civil employment: hardly any thing 
 remaining in use of the real assizes but the name. 
 
 If the sheriff be not an indifferent person ; as if he be a party in 
 tlie suit, or be related by either blood or affinity to either of the 
 parties, he is not tlien trusted to return the jury, but the venire 
 shall be directed to the coroners, who in this, as in many other in- 
 stances, are the substitutes of the sheriff', to execute process when 
 he is deemed an improper person. If any exception lies to the 
 coroners, the venire shall be directed to two clerks of the court, or 
 two persons of the county named by the court, and sworn. And these 
 two, who are called elisors, or electors, shall indifferently name the 
 jury, and their return is final; no challenge being allowed to their 
 array.^® 
 
 "See also Bacon's Abridgement, tit. Juries. In England the ancient 
 method of selecting and summoning jurors has been superseded by modern 
 acts which confide the preparation of the jury Hst to designated officials. 
 Jurors are summoned by the sheriff in obedience to precepts directed to 
 him issued by the judges or other officials charged with that duty. See 8 
 Halsbury's Laws 226. In America common law writs for procuring the attend- 
 ance of jurors have long since fallen into disuse and the procedure is largely 
 statutory-. 24 Cyc. 222, 12 Enc. PI. & Pr. 318. "Our system of summoning 
 jurors bears little resemblance to that practiced under the common law. In 
 
 Maine, New Hampshire, Vermont, Massachusetts, Pennsylv^mia^ and \V 
 Virginia, a writ of venire facias, expressly so calle3, issues by order of the 
 court before each drawing, but this is the only process. In all other states 
 it is believed that the drawing takes place as a matter of course upon a 
 certain date, and the venire issues only after the drawing is finished and the 
 list of jurors ready to be summoned. Some states continue to designate this 
 process as a venire; in others it is known as an "order," "precept," "sum- 
 mons" or simply "process." In many of the statutes no mention is m.ade of
 
 JONES V. WOODWARTH 345 
 
 (b) Challenges. 
 
 3 Blackstone's Commentaries 363. 
 
 Jurors may be challenged propter affectum for suspicion of bias 
 or partiality. This may be either a principal challenge, or to the 
 favor. A principal challenge is such where the cause assigned carries 
 with it prima facie evident marks of suspicion either of malice or 
 favor; as, that a juror is of kin to either party within the ninth 
 degree ; that he has been arbitrator on either side ; that he has an 
 interest in the cause ; that there is an action depending between him 
 and the party ; that he has taken money for his verdict ; that he has 
 formerly been a juror in the same cause; that he is the party's 
 master, servant, counsellor, steward or attorney, or of the same 
 society or corporation with him; all these are principal causes of 
 challenge, which, if true, can not be overruled, for jurors must be 
 omni exceptions majores. Challenges to the favor are w^iere the 
 party hath no principal challenge, but objects only to some probable 
 circumstances of suspicion, as acquaintance and the like ; tlie validity 
 of which must be left to the determination of triers, whose office is 
 to decide whether the juror be favorable or unfavorable. The triers, 
 in case the first man called be challenged, are two indifferent persons 
 named by the court ; and if they try one man and find him indifferent, 
 he shall be sworn ; and then he and the two triers shall try the next ; 
 and when another is found indifferent and sworn, the two triers 
 shall be superseded, and the two first sworn on the jury shall try tlie 
 rest.2" 
 
 X. JONES V. WOODWARTH. ^ - ^ , 
 
 Supreme Court of South Dakota, 1910. ' . ^ 
 
 24 S. Dak. 583. 
 
 Corson, J. : This is an appeal by the defendant from a judgment 
 rendered in favor of the plaintiff, and from the order denying a new 
 trial. The action was instituted by the plaintiff to recover of the 
 
 the process. When the drawing is conduded, the clerk makes a copy of the 
 names of the jurors drawn, which he delivers to the sheriff, which per se 
 constitutes the order and authority to the sheriff to summon." Thompson and 
 Merriam on Juries, § 69 (1882). 
 
 ^Brooke's Abridgment, "Challenge"; Coke on Littleton, 155b, ef seq.; 
 34 Lib. Ass. 6; Berry v. Wallen, i Overt. (Tenn.) 186 (1804) ; McCormick v. 
 Brook field, 4 N. J. L. 69 (1818) ; Mechanics & F. B. v. Smith, 19 Johns. (N. 
 Y.) 115 (1821) ; People v. Reyes, 5 Cal. 347 (1855) ; Flemming v. State, 11 
 Ind. 234 (1858). 
 
 "Challenges to the array are at once an exception to the whole panel, 
 in which the jury are arrayed or set in order by the sheriff in his return; 
 and they may be made on account of partiality or some default in the sheriff 
 or his undcr-officer who arrayed the panel." Ill Bl. Comm. 358. "Challenges 
 to the polls, in capita, are exceptions to particular jurors, and seem to answer 
 the rescusatio judicis in the civil and cannon laws. . . . Challenges to the 
 polls of the jury (who are judges of fact) are reduced to four heads by Sir 
 Edward Coke: Propter honoris respectum; propter defectum; proper 
 affectum; and propter delictum." Ill Bl. Comm. 361 ; I Co. Lit. 156.
 
 346 TRIAL 
 
 defendant dcimng[cs for an alleged breach of a contract entered into 
 by the dcicndant with the plaintiff for the purchase of 100 head of 
 steers, which the defendant refused to accept.'^ 
 
 It is disclosed by the record that upon tlie case being called for 
 trial, and before the drawing of the trial jury, the defendant inter- 
 posed a challenge to the array of jurors sumnioncd and returned to 
 try said cause, supported by affidavit, on the ground tliat the plain- 
 tiff in the said action was the sheriff of said county at the time of the 
 drawing of the jury for said term of court, and participated in the 
 drawing of the same, and that he, as such sheriff, summoned and 
 caused to be summoned said jury. This challenge was denied by the 
 court, and the defendant duly excei)tcd. Thereupon a jury was 
 called to the box for examination, and the defendant interposed a 
 challenge to the array on the same grounds previously interposed to 
 the panel. This challenge was also denied, and the defendant ex- 
 cepted. Thereupon the jury was examined as to their qualifications, 
 and the defendant, after having exhausted his challenges, renewed 
 his challenge to the array. This challenge w^as also denied, and the 
 defendant excepted. It is assigned as error, among others, that the 
 court erred in denying these challenges, and it is contended on the 
 part of the appellant that for this error the case should be reversed. 
 
 It is contended by the respondent in support of the ruling of the 
 trial judge that in civil cases a challenge to the panel or to the array 
 is not provided for — the only challenge allowed being the challenge 
 to individual jurors — and hence that the trial court was right in 
 denying appellant's challenges. The law in relation to the formation 
 of the trial jury in a civil case is provided for by section 249 of the 
 Code of Civil Procedure, and following sections: By section 251 is 
 provided: "Either party may challenge the jurors." By section 252, 
 as amended by chapter 171, Laws 1903, the grounds of the challenge 
 are specified. It wall be noticed by an examination of these sections 
 of the Code of Civil Procedure that no provision is made for a chal- 
 lenge to the panel or to the array. The learned counsel for the 
 respondent calls our attention to section 3 of the Code of Civil Pro- 
 cedure, which provides, "The code establishes the law of this state 
 respecting the subjects to which it relates, * * *" and also to 
 section 9, which provides, "* * * But in all cases provided for 
 by this code, all statutes, laws and rules heretofore in force in this 
 state, whether consistent or not wuth the provisions of this code, 
 unless expressly continued in force by it, are repealed and abro- 
 gated * * *"; and insists that under these provisions of the Code 
 of Civil Procedure no challenge to the panel or array can be allowed 
 in a civil action, as no provisions have been made in the Code of 
 Civil Procedure authorizing such a challenge to the panel or array. 
 Prior to the adoption of the Revised Codes of 1903, there would 
 have been great force in the contention of the respondent, but by 
 that revision an important change was made in respect to the com- 
 mon lav/ being in force in this state. Prior to the revision of 1903 
 
 **Parts of the opinion of the court an^l the concurring opinion of McCoy, 
 J., in which Whiting, P. J., joined are omitted. Haney, J., dissented.
 
 JONES V. WOODWARTH 347 
 
 'by section 2505, Comp. Laws, it is provided, "In this state there is 
 no common law in any case where the law is declared by the codes," 
 but by the revision of 1903 section 6 of the Civil Code was substi- 
 tuted for tliis section, which reads as follow: "In this state the 
 common law is in force except w^iere it conflicts with the codes or 
 the constitution." It will be noticed that the language of this section 
 is broad and comprehensive, and that it applies to all the codes, and 
 that now "the common law is in force in this state except where it 
 conflicts wdth the codes or the constitution." It will also be noticed 
 that the word "codes" is used in the plural. 
 
 It seems to be the settled practice at common law to allow chal- 
 lenges to tlie panel or array, both in civil and criminal cases. 
 3 Blackstone by Cooley 359; 17 A. & E. Encyc. of Law iiii; 24 
 Cyc. 328; Cowgillv. Wooden, 2 Blackf. (Ind.) 332; Woods v. Rozv- 
 man, 5 Johns. (N. Y.) 133; GoUohitsch v. Rainbow, 84 Iowa 567; 
 Mvjsko v'"'- ^' Pnttnn^ TO S erg. 8c R. ( F2i^ 334; j^O^U.V V. Wells, 
 4Y eates (Pa.) 43 ; Ullman v. State, 124 Wis. 602 ; People v. Fellows, 
 122 Cal. 22>3; iVliite v. State, 45 Tex. Cr. 597. The Code of Civil 
 Procedure having made no provision for a challenge to the array 
 or panel, and there being no provision in the constitution in conflict 
 with the common law upon this subject, it would seem quite clear 
 that under the law as it now exists the rule of the common law 
 authorizing such a challenge to the panel or array should be allowed, 
 notwithstanding the provisions of the Code of Civil Procedure 
 which have been heretofore quoted. The Code of Civil Procedure 
 having provided for challenges to individual jurors, those provisions 
 of the code supersede the common law, but, the Code of Civil Pro- 
 cedure not having provided in any manner for the challenge to the 
 panel or the array in civil cases, the common law applicable to such 
 challenge remains in force, and the court therefore erred in denying 
 the challenge to the array or the panel, as the facts stated in the 
 affidavit of the clerk as to the participation of the sheriff in the 
 drawing and summoning of the jury at that term is undisputed. 
 
 It is provided in section 716, Pol. Code, that: "In case tlie sheriff 
 shall be disqualified by reason of being a party to any suit pending in 
 said circuit court, or suspension from office, the coroner shall serve 
 wath the said officers in place of the sheriff," and by section 717 it is 
 provided specifically the manner in which the jury shall be drawn by 
 the officers designated. In our opinion these provisions in regard to 
 the drawing of the jury are mandatory, and it must be presumed, 
 we think, that the sheriff knew that, as a party to the action to be 
 tried at that term, he was disqualified from participating in any 
 manner in the drawing or summoning of the jury. In such case it 
 was the duty of the sheriff to notify the other members of the board 
 designated to draw the jury that he was disqualified andthat tlie 
 coroner should be called in to act in his place. While no improper 
 motive may have actuated the plaintiff in failing to so witlidraw 
 from the board, still it is the design of the law to remove all tempta- 
 tion from the officer so situated in using any improper influence by
 
 348 TRIAL 
 
 participating in the drawing of the jury and to carry into full effect 
 tlic intention of the provisions of the constitution (sec. 6, art. 6) 
 which provides: "The ris^ht of trial by jury shall remain inviolate." 
 Foruia v. P racer, 140 Mich. 631 ; Covington Bridge Co. v. Smith, 
 118 Ky. 74; -S\ Cov. Ry. v. SchiUing (Ky.)> ^o S. W. 510; Drogdcn 
 V. State. 47 Tex. Cr. 121 ; State v. Austin, 183 ]\Io. 478, In the case 
 of Fornia v. Fracer, supra, the learned Su[)rcme Court of JNIichigan, 
 in discussing a similar question, says : "The statute leaves no discre- 
 tion as to the officer who shall perform the act of drawing the jury. 
 The clerk, and no other officer, must draw the names from the box. 
 This court in People v. Labadic, 66 ]\Iich. 702, * * * said : 'The 
 statutes which establish the rule for the drawing of jurors leave no 
 discretion in the officers designated to conduct such drawing but 
 plainly indicate how the proceedings shall be conducted.' " 
 
 The summoning of the jury by the sheriff was equally irregular 
 and in violation of the common law, as was his participation in the 
 drawing of the same. To permit the sheriff under such circum- 
 stances to summon the jury where he is a party to an action to be 
 tried by tliem affords him opportunity to exercise an improper in- 
 fluence over them. Woods v. Rozvan, 5 Johns. (N. Y.) 133 ; Leqaux^ 
 V. Wells, 4 Yeates^{^Pa.) 43; Cozvgill v. Wooden, 2 I31ackf. (Ind.) 
 332; Gollobitsch V. Rainbozu, 8z| Iowa 567; Muns hower v. Patton, 
 loSerg. &. R. (Pa.) 334. In tlie case of JVoods v. Rowan, supra, 
 the Supreme~CouTt of Judicature for the state of New York, in dis- 
 cussing this question, says: "The reason given for not permitting 
 the sheriff to summon a jury, in his own cause is because he is not 
 to be trusted to return the jury (3 Bl. Comm. 354) ; and so scrupu- 
 lous is the law on this subject that it is a good reason for quashing 
 the array when made by a person or officer of whose partiality there 
 is any reasonable ground of suspicion. 3 Bl. Comm. 59. Under our 
 act, the opportunity offered the sheriff of selecting the jury is much 
 more circumscribed than it was before; but to a certain extent he 
 has still the power of choosing the triors of the cause. He has an 
 advantage which the other party has not, and hov.'ever remote or 
 unimportant that advantage may be, if it exists at all, the law does 
 not allow him an opportunity of availing himself of it. It is for this 
 reason, among others, that the sheriff is not competent to summon 
 a jury in the great variety of cases mentioned by Lord Coke. Co. 
 Litt. 156a, It is true that the sheriff no longer selects the whole 
 panel, and that it now is his duty to summon all such persons as 
 shall have been previously balloted by the clerk; and hence it is 
 argued that the challenge to the array in this case was properly over- 
 ruled. I can not accede to this conclusion. The sheriff certainly may 
 select such of them as he may suppose will best subserve his pur- 
 pose, and by summoning them, and omitting to summon the rest, 
 he may in many cases as effectually pack a jury as if he had the 
 pov/er of selecting the whole panel. The impartial and equal admin- 
 istration of justice renders it dangerous to trust the sheriff with 
 such a power. It is no answer to this objection to say that it is not 
 to be presumed the sheriff will prostitute his office to such purposes. 
 It is because he may do it that the law interposes ; and, if he may.
 
 DOWNEY v. FINUCANE 349 
 
 that is decisive of the question. I have taken some pains to ascertain 
 whether in England it has ever been considered that it was not a 
 good ground of challenge to the array where the sheriff has sum- 
 moned a special jury; he being a party or otherwise disqualified. 
 As far as my researches have extended, I do not discover that there 
 is any distinction. The rule appears to be universal ; and yet, where 
 a special jury is to try the cause, the sheriff has no more power of 
 selecting the jury than he has under our statute. I am satisfied that 
 it is safest to adhere to the rule as we find it settled, a rule wisely 
 introduced for the purpose of guarding against partiality and cor- 
 ruption in trials by jury. The court are of the opinion that the 
 challenge to the array upon the trial ought to have been allowed; 
 and that there must, therefore, be a new trial witli costs to abide the 
 event of the suit." This opinion, delivered over a century ago, so 
 clearly and so fully states the law applicable to the case at bar that 
 we do not deem a further discussion of the question necessary. For 
 the error committed by the court in denying the challenge to the 
 array of the jury, the judgment of the court below must be reversed.^^ 
 Judgment reversed. Haney, J., dissents. 
 
 ^ 
 
 FRANK H. DOWNEY v. THOMAS W. FINUCANE. 
 Court of Appeals of New York, 191 2. 
 
 205 A^. Y. 251. 
 
 WiLLARD Bartlett, J. : This is a civil action to recover damages 
 for fraud and deceit.^^ 
 
 The basis of the action is tlie alleged falsity of a prospectus pub- 
 lished to promote the sale of the securities of the United States 
 Independent Telephone Company. This prospectus was not pre- 
 pared or signed by any of the appellants. The sole signature to the 
 prospectus is that of Albert O. Fenn, care AlHance Bank, Rochester, 
 
 '^"The challenge to the array must be certain and specific, 3 Burr. 140; 
 and is an objection to all the jurors returned by the sheriff, collectively, 3 
 Bl. Comm. 358; Co. Litt. 156, 158; and is founded on some partiality or 
 default in the sheriff or his under-officer, or the clerk who arrayed the panel, 
 3 BI. Comm. 359; i Archb. Pr. 204." Conkey v. Northern Bank, 6 Wis. 447 
 (1858) ; Gardner v. Turner, 9 Johns. (N. Y.) 260 (1812) ; Pringle v. Huse, 
 I Cow. (N. Y.) 432 (1823) ; Munshower v_^Pattx m, 10 S. & R. (Pa .) 334, 13 
 Am. Dec. 678 (1823) ; Quinebang Bank v. Tarbox, 20 Conn. 510 (1850) ; Clin- 
 ton V. Englebrecht, 13 Wall. (U. S.) 434. 20 L. ed. 659 (1871) ; St. Louis & S. 
 E. R. Co. v. Wheelis, 72 111. 538 (1874) ; United States v. Loughery, Fed. Cas. 
 No. 15631, 13 Blatch. (U. S.) 267 (1876) ; Commonwealth v. Walsh, 124 Mass. 
 32 (1878) ; Boyer v. Tcaaue, 106 N. Car. 576, 11 S. E. 665, 19 Am. St. 547 
 (1890) ; Riley v. Chicago, M. & St. P. R. Co., 67 Minn._i63, 69 N. W. 718 
 (1897) ; such a challenge must be made promptly. Brunskill v. Giles, 9 Eingh. 
 13 (1832) ; Clears v.- Stanley, 34 111. App. 338 (1889) ; Klemmer v. Mount Penn. 
 G_ JR Cp t6^ Pa. St. q2ij 30 A tl. 274 (1894) ; Wal lace v. Jameson, itq Pa. 5 t. 
 98736 Atl. 142 ( 1897) ; Evansville & S. I. Tr. Co.v. Joluison (Ind. App.), 97 
 N. E. 176 (1912). 
 
 ^^Only so much of the opinion as relates to the right to challenge is 
 printed.
 
 350 TRIAL 
 
 N. Y. The plaintiff's right to recover, therefore, rests upon the 
 agency of Fonn to act In their behalf in endeavoring to procure sub- 
 scriptions by means of tlie prospectus. 
 
 The appellants, however, contend that Fenn, instead of acting 
 for the individual members of the syndicate, was solely the agent 
 of the United States Independent Telephone Company, and this be- 
 ing so that they can not be held liable for his fraudulent misrepre- 
 sentations inasmuch as they were merely directors of that corpora- 
 tion. 
 
 The five defendants claimed to be entitled to six peremptory 
 challenges each, but the court allowed only six peremptory chal- 
 lenges in all, treating the defendants collectively as but one party, 
 within tlie meaning of section 1176 of the Code of Civil Procedure, 
 which provides that upon a trial of an issue of fact joined in a civil 
 action in a court of record each party may peremptorily challenge 
 not more than six.-* The question docs not appear to have been con- 
 sidered in any reported case in this state. Numerous authorities 
 from other states are cited in the briefs of counsel, but they are only 
 relevant where statutes exist similar in phraseology to our own, that 
 is to say, where a given number of peremptory challenges is allowed 
 to each part}\ Such is the statute in Illinois in force since the year 
 1827, and "during that time it has been general practice and so 
 understood by tlie entire profession that each side to the case with- 
 out reference to the number of persons in each in all civil cases have 
 but three peremptory challenges." Schmidt v. C. & N. W. R. Co., 
 83 111. 405. The appellants rely upon Himdhaitsen v. Atkins, 36 Wis. 
 518, where the court was called upon to construe a statute regulat- 
 ing peremptory challenges which provided that in civil causes each 
 party should be entitled to three. The defendants had appeared by 
 different attorneys and severed their defenses, and the court held 
 that inasmuch as their defenses were essentially different and each 
 had a distinct issue to maintain, each w-as to be considered a party 
 witliin the meaning of the statute. The court, however, added this 
 qualification: "Undoubtedly when several defendants in a civil 
 action join in their defense, or severing in tlieir answers set out but 
 one defense common to them all, they constitute one party limited 
 to the statutory number of challenges given to a party as ruled in 
 this case in the court below. In such a case they might and perhaps 
 ought to join in one answer setting up a common defense; and they 
 should not be permitted to gain additional challenges by the mere act 
 of severing in their pleadings,. They have a community of interests 
 and should be left to a community of challenges." Such is the case 
 
 **In England peremptory challenges without cause exist only, as a matter 
 of ripht, in cases of treason and felony. 18 Halsbury's Laws, 249. If allowed 
 in civil cases it is as a matter of curtesy. Creed v. Fisher, 9 Exch. 472 (1854). 
 In the United States, a limited number of peremptory challenges are gen- 
 erally authorized by statute in civil as well as criminal cases, but the right 
 is purely statutory. Gordon v. Chicago, 20X 111. 623, 66 N. E. 823 (1903) ; 12 
 Ency. PI. & Pr. 475 ; O'Neil v. Lake Superior Co., 67 Mich. 560, 35 N. W. 162 
 (1887) ; Bruce v. Beall, 100 Tenn. 573, 47 S. W. 204 (1898) ; Stevens v. Union 
 R. Co., 26 R. I. 90, 58 Atl. 492, 66 L. R. A. 465 (1904).
 
 TEGARDEN V. PHILLIPS 35 1 
 
 here. The defendants had a common interest; their answers were 
 substantially identical; and the defense was conducted in the com- 
 mon interest of all. Under the circumstances, whatever might be 
 the rule if different defenses, possibly antagonistic to one another, 
 had been interposed, the defendants were properly treated as only one 
 party within the meaning of section 1176 of the code. 
 The judgment should be affirmed, with costs.^^ 
 
 V TEGARDEN v. PHILLIPS. 
 
 Appellate Court of Indiana, 1895. 
 14 Ind. App. 27."' 
 
 LoTZ, J. : The appellant, George W. Tegarden, as administrator 
 de bonis non of the estate of John Phillips, deceased, brought this 
 action against the appellee, Thomas L. Phillips, to recover the sum 
 of $3,000, alleged to be due and owing from the latter to the estate. 
 After issue joined, there was a trial by jury, and a verdict returned 
 for the appellee, upon which the court, after overruling appellant's 
 motion for a new trial, rendered judgment. The appellee was a son 
 and heir at law of appellant's decedent. The only error assigned is 
 the overruling of the motion for a new trial. One of the causes for 
 a new trial v/as the alleged incompetency of one of the jurors, 
 Thonias J. Grigsby. It appears from the affidavits filed in support 
 of this cause that the juror, on his voir dire, was asked whether or 
 not he was related by blood or marriage to either of the parties to 
 tlie action, and that in answer to such question the juror stated that 
 he was not. It is also made to appear that this juror's wife and the 
 appellee's wife are related by consanguinity within the fifth degree, 
 the juror's wife and the appellee's wife's mother having been first 
 cousins. It is also shown by the affidavits of the appellant and his, 
 counsel that they had no knowledge of such relationship when they 
 juror was accepted. ( 
 
 ^'Accord: Sodoiisky v. McGee, 4 J. J. Marsh. (Ky.) 267 (1830) ; Bihh v. 
 Reid, 3 Ala. 88 (1841) ; Snodgrass v. Hunt, 15 Ind. 274 (i860); Stone v. 
 Segur, 93 Mass. 568 (1866); Bryan v. Harrison, 76 N. Car. 360 (1877); 
 McClay v. Worrall, 18 Nebr. 44, 24 N. W. 429 (1885); United States v. 
 Alexander, 2 Idaho 354 (1888) ; Hargrove v. Vaughn, S2 Tex. 347, 18 S. W. 
 695 (1891); Illinois, lozva and Minnesota R. Co. v. Freeman, 210 111. 270 
 (1904) ; Waters-Pierce Oil Co. v. Bitrrozi-s, 77 Ark. 74 (1905) ; Clark v. St. 
 L. & S. R. Co., 234 Mo. 396, 137 S. W. 583 (1911) ; Galveston H. & S. A. R. 
 Co. V. Saunders, (Tex. Civ. App.) 141 S. W. 829 (1911) ; Schwing v. Dimlap, 
 130 La. 498, 58 So. 162 (1912) ; Crandall v. Pnget Sound Tract. &c. Co., 
 77 Wash. 37, 137 Pac. 319 (1913). Compare Stroke v. Henchman, 2,7 Mich. 490 
 (1877) ; Mutual Life Ins. Co. v. Hillmon, 14s U. S. 285, 36 L. ed. 706, 12 Sup 
 Ct. 909 (1891) ; Texas & P. R. Co. v. Stell, (Tex.) 61 S. W. 980 (1901) ; Wag- 
 goner V. Dodson, 96 Tex. 6, 68 S. W. 813, 69 S. W. 993 (1904) ; Cornell-An- 
 drew Smelting Co. v. Boston & P. R. Co., 202 Mass. 585, 89 N. E. 118 (1900) • 
 Hannay v. Harmon, (Tex. Civ. App.) 137 S. W. 406 (1911). 
 
 V N. E. 549 on rehearing of 39 N. E. 212. A part only of the opinion. 
 IS given.
 
 o5- TRIAL 
 
 At coniniCMi law, relationship by consanguinity or affinity within 
 the ninth degree, computed according to the rules of the civil law, is 
 good grounds for challenge.-^ And it seems that this relationship 
 could not be waived. Oakley v. .Ispimvcll, 3 N. Y. 550; Edzvards v. 
 Russell, 21 Wend. (N. Y.) 63. These rules have been changed in this 
 state by statute. The fact that a juror is related to one of the parties 
 within the inhibited degrees does not absolutely disqualify him from 
 serving. The eleventh subdivision of section 240, Rev. Stat. 1894 
 (sec. 240, Rev. Stat. 1881), provides that "when a person is required 
 to be distinterested or indifferent in acting on any question or matter 
 affecting other parties, consanguinity or affinity within the sixth 
 degree inclusive by tlie civil law rules, or within the degree of sec- 
 ond cousin inclusive, shall be deemed to disqualify such person from 
 acting except by consent of the parties." It has been held that this 
 statute applies to jurors. Dearmond v. Dcannond, 10 Ind. 191 ; 
 Huds petit V. Herston, 64 Ind. 133. It will be seen from tliis statute 
 that tlie relationship may be waived, and the juror permitted to 
 
 serve. 
 
 * * * 
 
 But, aside from the question of waiver, were the juror and the 
 appellee related, it is clear that they were not related by consanguin- 
 ity. If related at all, it was by affinity. Appellant's contention is that 
 they were related by affinity, while appellee insists that no relation- 
 ship exists between them by affinity. Affinity is an artificial relation- 
 ship. Bouv. Law Diet, defines it thus : "Tlie connection existing in 
 consequence of marriage between each of the married persons and 
 the kindred of the other. It is distinguished from consanguinity, 
 which denotes relationship by blood. Affinity is the tie whish exists 
 between one of the spouses with the kindred of the other. Thus, the 
 relations of my wife — her brothers, her sisters, her uncles — are 
 allied to me by affinity; and my brothers, sisters, etc., are allied in 
 the same way to my wife. But my brother and the sister of my wife 
 are not allied by the ties of affinity."-^ 
 
 The degrees of relationship by consanguinity of a husband or 
 wife to a third person is determined by counting up to the common 
 ancestor, and down to the related party ; and the degree of relation- 
 ship by affinity is found by counting up to the common ancestor, and 
 then counting dov.-n. The juror complained of was related to appel- 
 lee's wife by affinity only. This did not relate the juror and appellee 
 by affinity. The husbands of second cousins could not possibly fall 
 within the line of computation. The juror can not be related to the 
 appellee without departing from the principle upon which relation- 
 ship by affinity is determined. It is sometimes said that there is a 
 
 ''Accordincr to Coke if a juror was of kin to cither party in any dejrree 
 he was disqiiahfied. Co. Litt 157a. But later practice exchided only those 
 related within the ninth degree, 3 Bl. Comm. 363 ; Tidds Pr. 853. Such is 
 the rule in a number of states while in others the statutes prescribe a nearer 
 degree of relationship for absolute disqualification. 
 
 ^If either party to the marriage be dead and no issue living, the disquali- 
 fication ceases. Cain v. Ingham, 7 Cow. (N. Y.) 478 (1827) ; and note V an- 
 noy V. Givens, 23 N. J. L. 201 (1851) ; Bigelow v. Sprague, 140 Mass. 425, 
 5 N. E. 144 (1885).
 
 TEGARDEN V. PHILLIPS 353 
 
 connection between parties, arising from marriage, which is neither 
 consanguinity nor affinity. It is called "afjlnitas affinitatis." Bouv. 
 Law Diet. ; Ersk. Inst. p. 678. It is sometimes confused with and 
 called "affinity." As a general rule, however, this connection is too 
 vague and shadowy for judicial cognizance. In any event, it is not 
 recognized by our statute. Section 240, Rev. Stat. 1894; sec. 240, 
 Rev. Stat. 188 1. It is true that in some cases this relationship or con- 
 nection has been recognized by the courts. Thus, in Markham v. 
 Lee, 22 Edw. IV, p. 2, cited in Mounson v. West, i Leon. 89, the 
 defendant's challenge to the array was sustained because the sheriff's 
 wife was a sister to the plaintiff's wife. And in 15 Hen. VII, ch. 9, 
 cited in i Leon. 89, the challenge was sustained because the brother 
 of the wife of the defendant had married the daughter of the sheriff. 
 In Foot V. Morgan, i Hill (N. Y.) 654, it was held that a justice of 
 the peace who had married the sister of the plaintiff' was incompe- 
 tent to try the case. And in Railroad Co. v. Schuyler, 28 How. Prac. 
 (N. Y.) 187, it was held that a judge who had married the first 
 cousin of one of the defendants was incompetent to sit. These are 
 the only cases which have come under our observation which directly 
 support appellant's contention. The appellant cites and relies upon 
 the case of Paddock v. Wells, 2 Barb. Ch. (N. Y.) 231. It is there 
 said: "Relationship by affinity may also exist between the husband 
 and one who is connected by marriage with a blood relative of the 
 wife. Thus, where two men marry sisters, they become related to 
 each other in the second degree of affinity, as their wives are related 
 in the second degree of consanguinity," This latter statement is mere 
 dicta, for there was no such question before the court. The question 
 there before the court was whether or not the vice chancellor was 
 competent to sit, he being a first cousin of a former husband of tlie 
 defendant, there being issue living of the first marriage. We believe 
 the weight of authority, as well as reason and logic, is opposed to 
 appellant's contention. In Co. Litt. 527, it is laid down that the mar- 
 riage of the juror's son with the daughter of the plaintiff is not a 
 principal cause of challenge, as it would be if the juror himself 
 had married the daughter of the plaintiff. In 2 Steph. Comm., it is 
 said : "The consanguinei of the wafe are the affines of the husband, 
 and vice versa; but the affines of the wife are not those of the 
 husband, nor are the affines of the husband those of the wife." In 
 Waterhouse v. Martin, Peck (Tenn.) 374, it is held that there is no 
 relation by affinity between a party to the suit and the judge, whose 
 son's wife is an aunt of such party. In Hume v. Bank, 10 Lea 
 (Tenn.) i, it is held that a judge is not incompetent to sit in a cause 
 in which the husband of his wife's sister is a party. In Poydras v. 
 Livingston, 2 Mart. (N. S. 482) (La.) 293, it was decided that, 
 although the wives of the judge and the defendant were related by 
 consanguinity in the fourth degree, the husbands were not related by 
 affinity, and that the judge was not disqualified. In Chinn v. State, 
 47 Ohio Stat. 575, it was held, in a criminal case, that a defendant 
 was not related by either consanguinity or affinity to his wife's broth- 
 er's wife. See, also, Coop. Just. 422; Tayl. Civ. Law, 339; i Bish. 
 Mar. & Div. 314; Just. Inst, i, 10, 6; i Chit. Bl. 435, note 5. The 
 23 — Civ. Pkoc.
 
 354 
 
 TRIAL 
 
 17 
 
 juror was not incompetent. Under this rule above stated, it is true 
 that, if two men should marry sisters, one would not be disqualified 
 by this fact alone from serving on a jury where the other is a party. 
 But there are many other grounds for clvallenging a juror than those 
 enumerated in the statute. A juror must be disinterested, impartial, 
 free from bias and prejudice. If, by reason of his relationship, or 
 by reason of his association with a party, he has become biased or 
 prejudiced, or rendered partial, he may be challenged for such 
 cause. -'-• Thornt. Juries & Inst., p. 79. 
 Judgment affirmed. 
 
 THOMPSON V. DOUGLASS. 
 
 Supreme Court of Appeals of West Virginia, 1891. 
 
 35 W. Va. 337. 
 
 Branxon, J. : Thompson & Jackson brought an action of 
 assumpsit against S. C. Douglass & Co. in the Circuit Court of Bar- 
 bour county, and recovered judgment; and tlie defendants brought 
 tlie case to this court.^° 
 
 The first point of error made against the judgment is that the 
 court excluded five persons from tlie jury because they were in- 
 debted to one of the defendant firm. Challenges of jurors, called 
 challenges to the polls, are of two kinds — peremptory and for cause. 
 Lord Coke said, as we can say to-day, that peremptory challenges 
 were allowed the party "upon his own dislike, without showing any 
 cause."^^ Our law allows each party in civil cases four such chal- 
 lenges and in felony cases, to the state two, and the accused six. 
 Challenges for cause are divided by the common law into challenges 
 for principal cause and challenges to the favor — the former being 
 where the cause assigned positively disqualified ; the latter being 
 causes w^hich, though not conclusively disqualifying, yet threw sus- 
 
 "Accord: Chase v. Jennings, 38 Maine 44 (1854) ; North Ark. & W. R. 
 Co. v. Cole, 71 Ark. 38, 70 S. VV. 312 (1902); Louisville & N. R. Co. v. 
 Holland, 173 Ala. 675, 55 So. looi (1911). Compare Den v. Clark, i N. J. L. 
 446 (1794). And see generally as to incompetency through relationship, 
 Y. B. 23 Ass. 11; Y. B. 21 Edw. IV., 20; Hartford Bank v. Hart, 3 Day 
 (Conn.) 491, 3 Am. Dec. 274 (1807); Daily v. Gaines, i Dana (Ky.) 529 
 (1833) ; Churchill v. Churchill, 12 Vt. 661 (1839) ; Armstrong v. Timmons, 3 
 Har. (Del.) 342 (1841) ; Paddock v. Wells, 2 Barb. Ch. (N. Y.) 331 (1847) ; 
 Hardy v. Sprowle, 32 Maine 310 (1850) ; and note Triillinger v. Webb, 3 Ind. 
 198 (1851) ; Balshau2hjLFaJj:£r,J.3 Pa^St.__95_(i852) ; Morrison v. McKinnon, 
 12 Fla. 552 (W6ST; Rust v. ShackleJorJ, 47 Ga. 538 (1873) ; Lynds v. Hoar, 
 10 Nova Scotia 327 (1875) ; Wirchach v^ First Nat. Bank, 97 Pa. Sl 543, 39 
 Am. Rep. 821 (1881) ; People v. Clark, 62 Hun (N. YTS^ifirNTY. S. 473, 
 695, 41 N. Y. St. 448 (1891) ; Texas & P. R. Co. v. Elliott, 22 Tex. Civ. App. 
 
 31, 54 s. w. 410 (1899); CM^iildLy^Jlpw£lL_^^..;Ps^^\s>t.R^37 (1907); 
 
 Pemiscot L. &c. Co. v. Davis, 147 Mo. App. 194, I25^. W. 218 (1909) ; 
 Walsingham v. State, 61 Fla. 67, 56 So. 195 {1911); Dalton v. Humphries. 
 139 Ga. 556, 77 S. E. 790 (1912). 
 
 "A part of the opinion of the court is omitted. 
 
 "Co. Litt. 156b.
 
 THOMPSON V. DOUGLASS 355 
 
 piclon of bias on the juror. Principal challenges were tried by the 
 court, challenges to the favor by three triers; and, while these dif- 
 ferent modes of trial of challenges existed, it was very important to 
 preserve this distinction in order to determine in which class the 
 challenges would fall, in view of the different methods of trial of 
 each. But our statute law requires challenges to be tried by the 
 court, and thus the distinction between principal cause of challenge 
 and challenge to the favor has become unimportant, and we com- 
 monly call all challenges challenges for cause.^^ What Lord Coke said 
 centuries ago may be said now : "The causes of favor are infinite." 
 No enumeration was ever attempted of what causes might be alleged 
 as grounds of challenges to the favor. It would be impossible to 
 specify all that should be allowed in advance by a statute, for they 
 depend upon each particular case, and the circumstances and parties 
 to it. All concede that statutory disqualifications are not the only 
 ones.^^ 
 
 The cause assigned for the challenge of these jurors would fall 
 under the head of challenge to the favor. But is the fact that a 
 man is indebted to another good cause of challenge to exclude the 
 indebted party from sitting as a juror in a case wherein the creditor 
 is a party? Would a feeling of favor or fear move him, in the eye 
 of the lav/, to render a false verdict? Practically, there is some 
 force to say that where a party is greatly favored by a creditor, by 
 indulgence, he would feel a favor towards his friend; and, with per- 
 haps more force, that one largely indebted to another, so much in- 
 debted as to be at his mercy for his solvency, and even his home, 
 might from fear fail to render a just verdict adverse to his creditor. 
 On the other hand, it would be going quite far to say that simply 
 the fact that one man is indebted to another would disqualify ; that 
 if he owes only a small sum, which he is able to pay at any time, or 
 is a man of large means, or had more means than has his creditor, 
 he should be rejected. I do not say that no case of indebtedness — 
 
 °"The tendency of modem legislation is to relegate the trial of all chal- 
 lenges to the court. Thompson and Merriam on Juries, § 172; Proffatt on 
 Trial by Jury, § 167; New York Code Civ. Proc, § 1180 ; Pennsyly aniaact^ 
 of Jun e^S, 1883, P. L. 79, § i, P. & L. Dig. 4260; Compiled~Statutes"o f~Ts' ew" 
 J erseyTTOmr^prSpTS ; Rev. L. Mass. (1902) ch. 176, § 28; O' Fallon Coal 
 Co. V. Laquet, 198 111. 125, 64 N. E. 767 (1902). 
 
 ^'Churchill V. Churchill, 12 Vt. 661 (1839) ; Paddock v. Wells, 2 Barb. Ch. 
 (N. Y.) 331 (1847) ; Bailey v. Macaulay, 13 Ad. & El. (N. S.) 815 (1849) ; 
 Hudspeth v. Herston, 64 Ind. 133 (1878); Mich. A. L. R. Co., v. Barnes, 
 40 Mich. 383 (1879) ; Kohler v. West Side R. Co., 99 Wis. 33, 74 N. W. 568 
 (1898) ; Medlock v. Commrs., 115 Ga. 237, 4i S. E. 579 (1902) ; Grant v. 
 Nat. R. Spring Co., 100 App. Div. 234, 91 N. Y. S. 805 (1905). A juror 
 is not incompetent because he is a member of the same religious denomina- 
 tion or fraternal order as one of the parties to the suit, unless the interests 
 of the particular congregation or lodge to which he belongs are involved. 
 Purple v. Morton, 13 Wend. (N. Y.) 9, 27 Am. Dec. 167 (1832) ; Biirdine 
 V. Grand Lodge, 37 Ala. 478 (1861) ; Clcage v. Hyden, 6 Heisk. (Tenn.) 73 
 (1871) ; Delazvare Lodge v. Allmon, 1 Pennew. (Del.) 160 (1897) ; Reed v. 
 Peacock, 123 Mich. 2^4, 82 N. W. 53, 4 L. R. A. 423, 81 Am. St. 194 (1900) ; 
 Smith v. Sisters of the Good Shepherd, 27 Ky. L. I107, 87 S. W. 1083 (1905) ; 
 Searle v. Bishop of Springfield, 203 Mass. 493 (1909) ; S ehring v. Weaver , 
 42 Pa. Super. Ct. 588 (1910).
 
 356 TRIAL 
 
 one siiowlnj:: the debtor to be at the mercy and in the power of his 
 creditor — might not exchide. I have, however, met wiUi no case 
 exckiding, or of attenijit to exckide, a juror for such cause, except 
 one cited by counsel, Jhi)ih v. Siiiit/i, 19 Jolms. (N. Y.) 115, where, 
 because the juror was an indorser on a note held by a bank, he was 
 held disqualified by the triers, not by the court — the court having al- 
 lowed the fact to go before the triers as an item of evidence to show 
 bias; and, as the court above said, it was a decision on the admissi- 
 bility, not on the sufticicncy, of the evidence to show bias;. and the 
 judge in the opinion pointedly said that he would not undertake to 
 say that the single circumstance that one was indorser on a note 
 to the bank would of itself support a challenge to the favor, yet it 
 was easy to imagine that an indorser might have bias, as in case the 
 maker was insolvent, and the indorser in great danger at the hands 
 of the bank. Xo other case is cited. 
 
 In this present case simply the fact of indebtedness is shown 
 witliout any appearance of amounts or the relative pecuniary stand- 
 ing of the parties. We therefore think the jurors were improperly 
 excluded.^* 
 
 What then? Is it reversible error, or harmless error? Where 
 a disqualified juror is put on the jury, it is of course error; but 
 where a qualified juror is improperly rejected, it is a wholly differ- 
 ent thing. In such case the man taking his place is qualified and un- 
 exceptionable. Is he not as good a juror as the excluded one? Has 
 not the party had what the law designs — a trial by an impartial jury ? 
 If you set aside the verdict, upon a new trial he can not get that 
 rejected man. Is that man better than all the balance of the citizens 
 of the state qualified for jury service? Shall a long costly trial be 
 upturned for such cause only to give the party what he has already 
 had — a fair jury? Is the administration of justice to bear the odium 
 of such technicality? 
 
 Snow V. Weeks, 75 Maine 105, holds that the exclusion of a 
 qualified juror is not reviewable; that the judge "may put a legal 
 juror off, but can not allow an illegal juror to go on." In Sutton v. 
 
 "One who stands in a business relation to a party to the suit which is 
 cakulated to influence his verdict will not be permitted to serve as a juror. 
 Y. B. ID Edw. I\', 12; Anonymous, 2 Dyer 176a (1559); Harrishiirg_MJh^ 
 V. For.yf r r^ JA'atts (Pa.) 304 (1839); Goodrich v. BitrdiclT^ 2^ Mich.. 39 
 ~(iS72) -y'Stumm v. TtTTuniiel, 39 Iowa 478 (1874) ; Hubbard v. Rutlidge, 57 
 !NIiss. 7 (1879) ; Cent. R. R. Co. v. Mitchell, 63 Ga. 173 (1879) ; Catasanqua 
 Mfg. C o_,^, ^ot>kins, 141 Pa. St. 30. .21 Atl. 638 (1891) ; Iroquois Furnace 
 Co. V. McCrea, igi 111. 340, 61 N. E? 79 ( 1901 ) ; McCorkle v. Mallory, 30 
 Wash. 632, 71 Pac. 186 (1902); Blair v. McCormack Const. Co., 123 App. 
 Div. 30, 107 N. Y. S. 750 (1907) ; Pearce v. Quincy Min. Co., 149 Mich. 
 112, 112 N. W. 739, 12 Ann. Cas. 304 and note (1907); Hall v. Chattin, 
 17 Idaho 664, 106 Pac. 1132 (1910); Hu fnanlc v. Del. & H ^ Co., 227 Pa. 
 476j 76 At l . 205 (191 0J. But otherwise if the relationship is not calculated 
 to influence tlie verdict. Marsh V. Coppock, g Car. &. P. 480 (1840); Cu^ii: 
 intngsy^ Cann, F,2 Pa. S jL484_ (1866) ; Richardson v. Planters' Bk., 94 \'a. 
 130, 26^ E. 413 (i896yT~FaH Strike v. Potter, 53 Nebr. 28, 7i N. W. 295 
 (1897); Arnold v. Producers' Fruit Co., 141 Cal. 738, 75 Pac. 326 (1904) ; 
 Dimmack v. Wheeling Trac. Co., 58 W. Va. 226, 52 S. E. loi (1905) ; Joyce 
 V. Metropolitan S. R. Co., 219 Mo. 344, 118 S. W. 21 (1908) ; Border v. 
 Carrabine, 30 Okla. 740, 120 Pac. 1087 (1912).
 
 THOMPSON V. DOUGLASS 357 
 
 Fox, 55 Wis. 531, is a quaere whether the rejection of a competent 
 juror would be error; but the opinion strongly maintains that it is 
 not. In Tatiim v. Young, i Port. (Ala.) 298, it was held that "when 
 a cause has been tried by a legally impartial jury, though the judge, 
 on the application of the plaintiff, against the consent of the defend- 
 ant, may have rejected a juror for a cause somewhat questionable as 
 to its sufficiency, such rejection of the juror is not available in error." 
 This opinion draws the line between the erroneous rejection and ad- 
 mission of a juror, and says, where the trial has been by a fair jury, 
 there can be no prejudice, and quotes with approval what Judge 
 Story said in U. S. v. Cornell, 2 ]\Iason (U. S.) 91 : "Even if a juror 
 liad been set aside by the court for an insufficient cause, I do not 
 know that it is a matter of error, if the trial has been by a jury duly 
 sworn and impaneled, and above all exceptions. Neither the pris- 
 oner nor the government in such a case have suffered any injury." 
 
 In O'Brien v. Iron IVorks, 7 ]\Io. App. 257, it vras held that 
 "the improper exclusion of a juror upon a challenge is not sufficient 
 ground for reversal, where it does not appear that the party was 
 prejudiced thereby." In Maner v. State, 8 Tex. App. 361, held that 
 excusing juror for insufficient cause was no material error, when it 
 is not shown that the defendant was prejudiced. See Dodge v. 
 People, 4 Nebr. 220; John D. C. v. State, 16 Fla. 554; Railroad Co. 
 V. Franklin, 23 Kans. 74 ; State v. Ward, 39 Vt. 225 ; Watson v. State, 
 63 Ind. 548. 
 
 There are some authorities on the other side. I notice that a 
 very limited number cited by prisoner's counsel in Montague's Case, 
 10 Grat. (Va.) 767, sustain the contrary; perhaps only two of the 
 American cases. An abuse of discretion by the court, or where it 
 appears that prejudice in the particular case resulted from the ex- 
 clusion, would be subject to review. Nothing of this kind appears ) 
 here, and we are of opinion that the exclusion of these jurors, / 
 though on insufficient ground, is not reversible error."-* 
 ^//<9^- 
 
 '"While the disallowance of a good cause of challenge may result in a /^ /C*^ 
 reversal of judgment, the erroneous allowance of a challenge will not, in the [ ■. 
 
 absence of abuse of discretion, necessarily have that effect. A party is en- ^ ^y^A 
 titled to an impartial jun,-, but he is not, as a matter of right, entitled to any , / J/'^^ 
 particular juror called who happens to be qualified. Phelps v. Hall, 2 Tvler ^"^^y 
 (Vt.) 401 (1803); Silvis v. £/v, 3 Watt5. & 3. (Pa.) 420 (1842); Bibb v. u r Lom) 
 Re'xd, 3 Ala. 88 (1841) ; Mansell v. The Queen, S El. '& B. 54 (1857) ; Smith 
 V. Clayton, 29 _N. J. L. 357 (1862) ; People v. Arcco, 32 Cal. 40 (1867) ; Grand 
 Rapids Booming Co. v. Jarvis, 30 Mich. 308 (1874) ; Citizens' Bk. v. Strauss, 
 26 La. Ann. 736 (1874) ; Coryell v. Stone, 62 Ind. 307 (1878) ; O'Brien v. 
 Vulcan Iron Works, 7 AIo. App. 257 (1879) ; Commonzi'ealth v. Hosier, 135 
 Pa. St. 221, 19 Atl. 943 (1890) ; Rhea v. State, 63 Nebr. 461, 88 N. W. 789 
 (1902); Glasgow v. Metropolitan St. R. Co., 191 Mo. 347, 89 S. W. 915 
 (1905); International & G. N. R. Co. v. Owens, (Tex.) 124 S. \V. 210 
 (1910); Comji h. \. Henderson, 24.2 Pa. 372. 89 A tl. 567 (1913). Contra: 
 Boles V. 3Va/<?, 13 bm. & M. (Miss.) 398 (1850); V^an Blaricum v. People, 
 16 111. 364, 63 Am. Dec. 316 (1855) ; Scranton v. Gore. 124 Pa. c;q-^ t? Atl. 
 144 (1889), and compare Comfort v. Mosser. 121 Pa. St. 4=;:::. t^ At!. 612 
 (1888) ; Clay y. Western M'. R. to., 221 Pa 4.^9. 70 A tl. 807 (IQ08) ; Searle 
 V. Roman~Cathohc J^isiiop, 203 Mass. 493 (1909). It is generally held that 
 the findings of the court upon questions of fact involved in a challenge are 
 conclusive, but the findings upon questions of law are reviewable on error.
 
 358 TRIAL 
 
 WOOD z: STODDARD (uil tarn, &c. 
 
 Supreme Court of New York, 1807. 
 
 2 Johns. (N. Y.) 194 
 
 A 
 
 In error on certiorari. The plaintiff below brought an action to 
 recover of the defendant below a sum, received by him for exces- 
 sive interest, under the act for preventing usury, one moiety of which 
 is directed to go to tlie use of the town where the offense is commit- 
 ted, and the other moiety to the person prosecuting. The cause was 
 tried in the tov/n of Scipio, where the usurious sum was received. 
 The constable and jury were inhabitants of tlie same town. The de- 
 fendant below challenged all tlie jurors as being interested. The 
 justice before whom the cause was tried overruled the exception, 
 and a verdict was found for the plaintiff. 
 
 Per Curiam : The relaxation of the rule, as to questions of 
 interest, has never been extended to jurors. They must be omni 
 exceptione majores, free from every objection, and wholly disinter- 
 ested. The judgment below must be reversed. 
 
 Judgment reversed.^® 
 
 March v. Portsmouth & C. R. Co., 19 N. H. 372 (1849) ; Dew v. McDivitt, 
 31 Ohio St. 139 (1876); \Virehaxh v^_FirstI^t^^ 9ZP?'--S43> 39 ■'*^"^- 
 
 Rep. 821 (1881) ; CatasaitqucTMJg^ Co. v. HopHtns, 141 WTTTzo, 21 Atl. 638 
 (1891) ; Johnson v. State, 59 N. J. L. 271, 35 Atl. 787 (1896) ; Ruschenberg 
 V. Southern El. R. Co., 161 I^Io. 70, 61 S. W. 626 (1900) ; State v. Register, 133 
 N. Car. 746, 46 S. E. 21 (1903) ; Grayhill v. DeYoitng, 146 Cal. 421, 80 Pac. 
 618 (1905); Sansouver v. Glenlyon Dye Works, 28 R. I. 539, 68 Atl. 545 
 (1908) ; Hinton v. Atchison & N. R. Co., 83 Nebr. 835, 120 N. W. 431 (1909)- 
 Other courts hold that the decision of the trial court is reviewable whether 
 the challensje is for principal cause or to the favor. Winnesheik Ins. Co. v. 
 Schucller, 60 111. 465 (1871) ; Bnlbo v. People, 80 N. Y. 484 (1880) ; O' Fallon 
 Coal Co., v. Laquet, 198 111. 125, 64 K. E. 767 (1902). 
 
 "Accord: 17 Lib. Ass. 15; 28 Lib. Ass. 18; Day v. Savadge, Hob. 85, 87; 
 Anonymous, I Salk. 153 (1688) ; Queen v. Wilts County, 6 Mod. 307 (1704) ; 
 Hesketh v. Braddock, 3 Burr. 1847 (1766); Alexandria v. Brockett, i Cr. 
 C. C. 505 (1808) ; Boston v. Tileston, 11 Mass. 468 (1814) ; Russell v. Hamil- 
 ton, 3 III. 56 (1839) ; Columbus v. Goetchius, 7 Ga. 139 (1849) ; Fine v. St. 
 Louis Public Schools, 30 Mo. 166 (i860); Hazves v. Gustin, 84 Mass. 402 
 (1861); Bailey v. Trumbull, 31 Conn. 581 (1863); Garrison v. Portland, 2 
 Ore. 123 (1865) ; Johnson v. Americus, 46 Ga. 80 (1872) ; Diveny v. Elmira, 
 51 N. Y. 506 (1873) ; Watson v. Tripp, 11 R. I. 98, 33 Am. Rep. 420 (1874) ; 
 Gibson V. Wyandotte, 20 Kans. 156 (1878); Goshen v. England, 119 Ind. 
 368, 21 N. E. 977, 5 L. R. A. 253 (1889) ; Robinson v. Wilmington, 8 Houst. 
 (Del.) 409 (1889); Cason v. Ottumwa, 102 Iowa 99, 71 N. W. 192 (1897); 
 Davey v. Jamesville, in Wis. 628, 87 N. W. 813 (1901) ; Multnomah County 
 V. Willamette Towing Co., 89 Ore. 204, 89 Pac. 389 (1907) ; Anderson v. 
 Wilmington, 6 Pennew. (Del.) 485, 70 Atl. 204 (1907) ; Broadway Mfg. Co., 
 V. Leavenworth Terminal R. Co., 81 Kans. 616, 106 Pac. 1034 (1910). 
 Contra: Middleton V. Ames, 7 Vt. 166 (1835) ; Omaha v. Olmstead, 5 Nebr, 
 446 (1877); Kemper v. Louisville, 14 Bush (Ky.) 87 (1878); Jackson v. 
 Pool, 91 Tenn. 448, 19 S. W. 324 (1892) ; Marshall v. McAllister, 18 Tex. Civ. 
 App. 159, 43 S. W. 1043 (1898) ; Detroit v. Detroit Ry., 134 Mich. 11, 95 N. 
 W. 992, 99 N. W. 411, 104 Am. St. 600 (1903). The principle has been 
 applied to taxpayers of counties. Peck v. Essex, 21 N. J. L. 656 (1847); 
 Elliott V. Wallozha County, 57 Ore. 236, 109 Pac. 130 (1910). Contra: RaUi- 
 b-.'.n v. Thurston Co., 8 Wash. 238, 35 Pac. 1132 (1S94) ; Eastman v Burke,
 
 ^ 
 
 PAGE V. CONTOOCOOK VAL. RAILROAD 359 
 
 PAGE V. THE CONTOOCOOK VALLEY RAILROAD. 
 
 Superior Court of Judicature of New Hampshire, 1850. 
 
 21 A^. H. 438. 
 
 Appeal from the decision of commissioners and selectmen, 
 awarding damages to the appellant for laying out the Contoocook 
 Valley Railroad, across his land. 
 
 On the 20th of June, 1850, the Contoocook Valley Railroad and 
 the Concord and Claremont Railroad entered into a contract by in- 
 denture, which contract was in force at the time of the trial of this 
 cause, in October, 1850. By this contract, it was agreed that the 
 Concord and Claremont Railroad should run and manage both roads, 
 and tliat the joint net income of both roads should be divided be- 
 tween them in proportion to the sums expended in constructing and 
 completing each. 
 
 After the trial of this cause by the jury, it was discovered that 
 one of the jurors owned eleven shares in tlie capital stock of the 
 Concord and Claremont Railroad ; and, on this ground, the appellant 
 moved to set aside the verdict. 
 
 Perley, J. : By the contract between the two roads the net in- 
 come of both was to be divided in proportion to the cost of each. 
 The sums paid to land-owners would be part of the expense of con- 
 structing and completing the roads. Under this bargain, stockholders 
 in the Concord and Claremont road would be interested to keep the 
 land-damages paid by the other road, as low as possible, because, on 
 a division of profits, the lower the land-damages paid by the Con- 
 toocook Valley road, the smaller would be the amount taken by that 
 road from the common fund, out of which dividends would be made 
 to the stockholders of the two roads. 
 
 The juror, who owned stock in the Concord and Claremont road, 
 was, therefore, by virtue of this contract, directly interested in the 
 result of the cause, which he assisted to try.'^ His interest was prob- 
 
 119 N. Car. 505, 26 S. E. 39 (1896) ; Martin v. Somervell Co., 21 Tex. Civ. 
 App. 308, 52 S. W. 556 (1899) ; Pool V. Warren Co., 123 Ga. 205, 51 S. E. 
 328 (1905) ; Big Sandy R. Co., v. Floyd Co., 31 Ky. L. 17 (1907) ; Wilson v. 
 Wapello, 129 Iowa 77, 105 N. W. 363 (1905). In a number of states it is 
 provided by statute that the fact that a juror is a resident or taxpayer of 
 a city, town or county is not a good cause of challenge. New York Code 
 of Civil Procedure, § 1170: Pennsylvania, act of April ^ 6;_i84.o. P. L. 410, 
 § 6, P. & L. Dig. 4260; S_crqnt bn y Gore, 124^ a. St. 59^^x7 A!Tri44 (1889) ; 
 Rev. Laws Minn. 1905, § 4i3T~l^ew Jersey^^vT Stat 1877, p. 530, § 39; 
 W. Va. Code 1906, § 3717; Rev. Laws Mass. (1902) pp. 1492, 1591. In 
 Boston v. Baldwin, 139 Mass. 315, i N. E. 417 (1888) a member of common 
 council of the city of Boston was held not competent to sit as a juror in 
 a case to which the city was a partj^ 
 
 ^'But compare Augusta S. R. Co. v. McDadc, 105 Ga. 134, 31 S. E. 420 
 (1898). Generally, stockholders are not competent as jurors in actions to 
 which their corporation is a party. Y. B. 21 Edw. IV, 11, 20, 31, 63; Respublica 
 V. Richards, i Yeates (Pa.) 480 { 17 9S) ; ^Sj Ms v. Ely, 3 Watts & IS. (Fa?)^ 
 420 (,1^42; ; tieesorTv. Savage Silver Min. Co., 3 JNev. 157" (1867); Fenin- 
 sular R. Co. v. Hozivrd, 20 Mich. 18 (1870) ; Butler v. Glens Falls &c. R. Co., 
 121 N. Y. 112, 24 N. E. 187 (1890). See N. Y. Code Civ. Proc, § 1180;
 
 360 TRIAL 
 
 ably vcrv trinins:^ in amount, and may not have influenced his judg- 
 ment at all on the ([ucstion of damages. r>ut the principle is extremely 
 well settled, that any, even the smallest, degree of interest in the 
 i]uestion pending, is a decisive objection to a juror. HeskctJi v. 
 Braddock. 3 Burrows, 1856; Hatvkcs v. Kcnnchcck, 7 Mass. 464; 
 Wood V. Stoddard, 2 Johns. (N. Y.) 194. 
 
 As this objection was not known to the appellant until after the 
 verdict was returned, it was not waived by proceeding to trial with- 
 out challenge. 
 
 The verdict must be set aside, and a new trial granted. 
 
 FERDINAND GIRARD v. THE GROSVENORDALE 
 •\ COMPANY. 
 
 i 
 
 Supreme Court of Errors of Connecticut, 1909, 
 
 82 Conn. 271. 
 
 Action by a servant to recover damages for personal injuries 
 alleged to have been caused by the defendants' negligence. There 
 was a verdict and judgment for the plaintiff and appeal by the de- 
 fendant.^® 
 
 Thayer, J. : Before the jury was impaneled counsel for the 
 plaintiff, in the absence of the jurors and in the presence of counsel 
 for the defendant, informed the court that the defendant was in- 
 sured against liability for damage to the plaintiff through negligence, 
 by an insurance company, and that the insurance company was in- 
 terested and conducting the defense. Counsel for the defendant 
 admitted the fact of the insurance. The plaintiff's counsel claimed 
 the right to inquire of the jurors whether any of them were stock- 
 holders, officers, agents, or employes of the insurance company, as 
 affecting the qualification of the jurors. The defendant objected to 
 this, but the court permitted it to be done, and in impaneling the 
 jury such questions were asked of them by the plaintiff's counsel. 
 Exception was taken to this, and it is assigned as error. 
 
 So far as appears, the inquiries were made in good faith, for the 
 genuine purpose of learning w-hether any of the jurors were dis- 
 qualified by interest, and not for the purpose of getting before the 
 jurors a fact not in issue in the case for the purpose of prejudicing 
 them. The facts were not called to the jury's attention until per- 
 mission had first been obtained from the court in their absence. It 
 
 McLaughlin v. Louisville Electric Light Co., 100 Ky. 173, 37 S. W. 851, 18 
 Ky. L. 693, 34 L. R. A. 812 (1896) ; Martin v. Farmers Mut. Fire Ins. Co., 
 139 Mich. 148, 102 N. W. 656 (1905) ; Murchison Nat. Bank v. Dunn Oil Mills 
 Co., 150 N. Car. 683, 64 S. E. 883 (1909). Compare ll'illiaws v. Great IVcit. 
 R. Co., 3 H. & N. 869 (1858) ; Rogers Grain Co. v. Tanton, 136 111. App. 533 
 C1907) ; Stone v. Monticello Const. Co., 135 Ky. 659, 117 S. W. 369 (1909) ; 
 Walter v. Louisville R. Co., 150 Ky. 652, 150 S. W. 824 (1912). 
 
 "A part only of the opinion is given. For an error in the charge a new 
 trial was ordered.
 
 GIRARD V. GROSVENOKDALE CO. 361 
 
 was within the discretion of the court to grant this permission if, 
 upon the statements of counsel, there was any reason to beheve that 
 any of the jurors would be interested, as stockholders or otherwise 
 in the insurance company, in the result of the action. Ordinarily 
 such interest on the part of jurors in this state in a foreign insur- 
 ance company would hardly be presumed. But it is possible tliat the 
 agent of the company who placed the insurance, or claim agent or 
 adjuster who had been employed in attempting to settle the claim, 
 might be among the jurors summoned. It can not, therefore, be said 
 that in all cases it is improper to permit counsel to ask such questions 
 as were permitted in this case to determine whether jurors are dis- 
 qualified. Cases are cited from other states holding that it is error 
 to permit the fact of the insurance to be brought to the jury's atten- 
 tion by questions asked in the examination of witnesses, by remarks 
 of counsel in argument, or by questions asked of jurors while they 
 are being impaneled. For the reason stated, we think cases may 
 exist in which such questions may properly be permitted in deter- 
 mining the qualifications of the jurors, and that in the present case 
 it does not appear that the court's discretion was improperly exer- 
 cised.^^ 
 
 '^Compare Meyer v. Gimdloch-Nelson Mfg. Co., 67 Mo. App. 389 
 (1896) ; Spoonick v. Backus-Brooks Co., 89 Minn. 354 (1903) ; Foley v. 
 Cudahy Packing Co., 119 Iowa 246, 93 N. W. 284 (1903) ; Swift v. Platte, 
 68 Kans. i, ^2 Pac. 276, 74 Pac. 635 (1903); Grant v. National R. Spring 
 Co., 100 App. Div. 234, 91 N. Y. S. 805 (1905) ; Faber v. Reiss Coal Co., 
 124 Wis. 554, 102 N. W. 1049 (1905) ; Vindicator Consol. Gold Min. Co. v. 
 Firstbrook, 36 Colo. 498, 86 Pac. 313 (1906) ; Granrus v. Croxton Min. Co., 
 102 Minn. 325, 113 N. W. 693 (1907) ; Brtisseau v. Lover Brick Co., 133 Iowa 
 24s, no N. W. 577 (1907) ; Blair v. McCormack Const. Co., 123 App. Div. 
 30, 107 N. Y. S. 750 (1907) Aff. 193 N. Y. 520; Rinklin v. Acker, 125 N. Y. 
 App. Div. 244, 109 N. Y. S. 125 ( 1908) ; Sailer v. Friedman Bro. Shoe Co., 
 130 Mo. App. 712, 109 S. W. 794 (1907) ; Beeler v. Butte & London Copper 
 Development Co., 41 Mont. 465, no Pac. 528 (1910) ; Heydman v. Red Wing 
 Brick Co., 112 Minn. 158, 127 N. W. 561 (1910) ; Kenny v. Marquette Cement 
 Co., 243 III. 396, 90 N. E. 724 (1910); Odell v. Genessee Const. Co., 145 
 App. Div. 125, 129 N. Y. S. 122 (1911); Pckin Stove & Mfg. Co. v. 
 Ramey, 104 Ark. i, 147 S. W. 83 (1912) ; Featherstone v. Lowell Cotton 
 Mills, 159 N. Car. 429, 74 S. E. 918 (1912) ; Citizens Light, Heat & Power 
 Co., V. Lee, 182 Ala. 561, 62 So. 199 (1913) ; Walters v. Durham Lumber Co., 
 165 N. Car. 388, 81 S. E. 388 (1914) ; Egner v. Cxirtis T. & P. Co., 96 Nebr. 
 18, 146 N. W. 1032 (1914) ; Inland Steel Co. v. Gillespie, 181 Ind. 633, 104 N. E. 
 76 (1914) with Lipschuts v. Ross, 84 N. Y. S. 632 (1903) ; Stratton v. Nichols 
 Lumber Co., 39 Wash. 323, 81 Pac. 831 (1905) ; Harry Bros. Co. v. Brady 
 (Tex. Civ. App.) 86 S. W. 615 (1905) ; Howard v. Beldenville L. Co., 129 
 Wis. 98, 108 N. W. 48 (1906) ; Chybowski v. Bucyrus Co., 127 Wis. 332, 106 
 N. W. 833 (1906) ; Hoyt v. Davis Mfg. Co., 112 App. Div. 755, 98 N. Y. S. 
 1031 (1906) ; Actitus v. Spring Valley Coal Co., 246 111. 32, 92 N. E. 579 
 (1910) ; Pierce v. United Gas & E. Co., 161 Cal. 176, n8 Pac. 700 (1911) ; 
 Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 Pac. 233 (1913) ; Mithen 
 V. Jeffrey, 259 111. 2,72, 102 N. E. 778 (1913) ; Houston Car Wheel & Machine 
 Co. V. Smith, (Tex. Civ. App.) 160 S. W. 435 (1913) ; Putnam v. Pacific 
 Monthly Co., 68 Ore. 36, 130 Pac. 986, 136 Pac. 835 (1913) ; Rothenberg 
 v. Collins, 161 App. Div. 387, 146 N. Y. S. 762 (1914) ; Duncan Coal Co. 
 V. Thompson, 137 Ky. 304, 162 S. W. n39 (1914)- See also. Hollis v. Un ited 
 ^MesGlas£_£Q^^j22QjE^:_jQj_6QAtl. 55 (1908); Simpson v. Foundation 'Co., 
 201 N. Yr479, 95 N. E. 10 (igH) ; Curran v. Larch, 243 Pa. 247, 90 Atl. 
 62 (1914).
 
 2,62 TRIAL 
 
 MOORE V. CASS. 
 
 Supreme Court of Kansas, 1872. 
 
 10 Kans. 288. 
 
 A 
 
 Action by Cass to recover from Moore the value of a horse 
 hired by him and claimed by plaint! iT to have died in consequence 
 of Moore's negligence. Verdict and judgment for plaintiff. Defend- 
 ant brings error.^° 
 
 Kingman, C. J. : The remaining error urged arose on this state 
 of facts: John Donnelley, one of the jurors who tried the case, 
 upon his examination under oath as to his qualifications as a jury- 
 man, stated tliat he was acquainted with the plaintiff, but not inti- 
 mately acquainted with him ; that he knew nothing about the case 
 and had not formed or expressed an opinion as to it. After the trial 
 five affidavits were read showing the acquaintance between the 
 plaintiff and tlie juror, and which the plaintiff in error claims 
 show an intimate acquaintance. Neither an acquaintance nor an 
 intimate acquaintance with a party to a suit renders a juror incom- 
 petent. It does not necessarily show that the juror would not be 
 impartial. It would depend on tlie moral character of the man, and 
 his mental organization, what effect his intimacy might have on his 
 judgment, even if this intimacy is caused by strong friendship, which 
 is not always the case. Intimacy frequently grows out of business 
 relations, and is strengthened by habit, and may exist with envy and 
 dislike. This may not be a very amiable feature, but it is true. The 
 fact of intimacy does not of itself disqualify a man as a juror, though 
 in most cases it would cause a peremptory challenge of such a man. 
 The most that can be claimed, then, is that the answers of the juror 
 misled the counsel by their falsehood. It is not necessary to inquire 
 whether tliat would be a good cause for a new trial, because we 
 are not convinced that the facts stated show even an intimate 
 acquaintance with the plaintiff on the part of the juror. It is shown 
 tliat he frequented the saloon of the plaintiff as often as once a 
 week ; had been seen to drink there, and with the plaintiff, and had 
 played cards in the same company, and these acts had continued for 
 a year or more before the trial. Now all these facts hardly show an 
 intimate acquaintance. Certainly the facts may exist without any 
 intimacy. Again, what constitutes intimate acquaintance is not so 
 cleary defined in men's minds that the juror might not truthfully 
 say that he had no intimate acquaintance with the plaintiff, even if 
 counsel should think otherwise on the same facts. We can not say 
 from the record that the juror answered untruthfully, and so all 
 semblance of error on this point vanishes. The motion for a new 
 trial was properly overruled.*^ 
 
 Judgment affirmed. 
 
 ^'The statement of facts is abridged and the argument and part of the 
 opinion of the court are omitted. 
 
 ""Mere acquaintance of the jurors with a Htigant does not imply hi;iS 
 by them in his favor any more than it raises a presumption of prejudice." 
 Perkins v. Sunset Tel. & T. Co., 155 Cal. 713, 103 Pac. 190 (1909). Accord:
 
 f 
 
 GARTHWAITE, GRIFFIN & CO. 'v. TATUM 363 
 
 GARTHWAITE, GRIFFIN & CO. v. TATUM. 
 
 Supreme Court of Arkansas, i860. rlA>|LAA.>^ 
 
 21 Ark. 336. Vi 
 
 Fairchild, J. : This case was brought here by appeal from a 
 judgment for the defendant below, the appellee here. It is like the 
 case of Gould v. Tafum,^^ just decided, being an action of debt 
 upon a note executed at the same time with the note in that case, 
 in which the issues were tlie same. The same testimony of Wliitt 
 and Lee was given in this case, as in the other, and under like cir- 
 cumstances. A similar motion for a new trial similarly met, and with 
 like result, as shown in the transcript. There was no such evidence 
 as that of the endorsement on the note, and the reading of the declar- 
 ation in the other case. 
 
 The case of Gould v. Tatum was first tried; upon tlie next day 
 this case was called, and the same jurors that tried that case were, 
 brought to try this case. It was admitted by the parties that the) 
 issues were the same as in that case, and that the evidence would be; 
 the same, except the note sued on, and the plaintiffs objected to the 
 proposed jurors as disqualified from sitting as a jury in this case. 
 The court overruled the objection. 
 y^C By their verdict in the other case, the jurors had formed and 
 ( \ expressed their opinion upon this case. And tlie fact that this was 
 done on oath, after hearing all the facts and after full deliberation 
 thereon, amid the solemnities and under the direction of judicial 
 proceedings, could have no other effect than to incline them to ren- 
 der such verdict as they had rendered the day before. The law | 
 presumes them to have been under a disqualifying bias, and the ob- 
 jection of the plaintiff should have been sustained.*^ i 
 
 Judgment reversed. 
 
 McFaddcn v. Wallace, 38 Cal. 51 (1869) ; Lavender v. Hudgens, 32 Ark. 
 763 (1878) ; Chesapeake & O. R. Co. v. Smith, 103 Va. 326, 49 S. E. 487 
 (1905); Decker v. Laws, 74 Ark 286, 85 S. W. 425 (1905). But a juror 
 should be excluded where it appears that his friendship or enmity for a 
 party would weigh in the determination of the case. March v. Portsmonth 
 & C. R., 19 N. H. 372 (1849) ; McLaren v. Birdsong, 24 Ga. 265 (1858) ; 
 Biiddee v. Spongier, 12 Colo. 216, 20 Pac. 760 (1888) ; C ommon weaUh^v . 
 Mosier. 135 Pa. St. 221. iq Atl. 943 (1890) ; Stinson v. Sachs, a vVasH^ 391, 
 30 Pac. 287 (1894) ; Omaha & R. V. R. Co. v. Cook, 2,7 Nebr. 435, 55 N. W. 
 943 (1893) ; Omaha St. R. Co. v. Craig, 39 Nebr. 601, 58 N. W. 209 (1894) ; 
 Texas Cent. R. Co. v. Blanton, 36 Tex. Civ. App. 307, 81 S. W. 537 (1904) ; 
 State V. Caron, 118 La. 349, 42 So. 960 (1907) ; Grand Lodge v. Taylor, 44 
 Colo. 373 (1908). Compare Onions v. Nash, 7 Price 205 (1819). As to 
 bias see Chicago & A. R. Co. v. Adler, 56 111. 344 (1870) ; IVinnesheik Ins. 
 Co. V. Schneller, 60 111. 465 (1871) ; Richmond v. Roberts, 98 111. 472 (1881) ; 
 U. S. Rolling Stock Co. v. Weir, 96 Ala. 396, 11 So. 436 (1891) ; People 
 V. Star Co., 135 App. Div. 517, 120 N. Y. S. 498 (1909). 
 
 "-21 Ark. 239 (i860). 
 
 "At common law the fact that a juror had rendered a verdict on a 
 previous trial of the same case was ground for principal challenge. Y. B. 
 33 Hen. VI., i ; Long's Case, Cro, Eliz. 33 (1583) ; Argent v. Darrell, 2 Saik.
 
 364 
 
 TRIAL 
 
 ^" GOTTLIEB SCILAIIDT t: NEW YORK MUTUAL FIRE 
 r INSURANCE CO. 
 
 Supreme Judicial Court of Massachusetts, 1854. 
 
 67 Ahiss. 529. 
 
 Action of contract on a policy of insurance on the plaintiff's 
 tl\vellin£i: house, barn, etc., against loss by fire. The defense was 
 that plaintiff purposely set fire to the property insured. Counsel for 
 the plaintiff in his closing argument having stated his belief that some 
 of the jury knew personally that two of the defendant's witnesses 
 were not worthy of belief, 'the court instructed the jury that they 
 could take into consideration all the evidence they had heard as to 
 the character and standing of any of the witnesses; but that any 
 particular knowledge of any facts, such as the generally infamous 
 character of any of the defendant's witnesses, not testified to, or 
 otherwise appearing in the cause, not within the common knowledge 
 of all tlie jurors, not being open to comment on the part of the de- 
 fendant's counsel, or to instruction on the part of the court, but 
 which was in possession merely of some one or more, but not the 
 whole of the jury, could not fairly be taken into view by the jury, 
 
 648 (1699); Herndon v. Bradshaw, 4 Bibb (Ky.) 45 (1815) ; J^loyd v. 
 Xourse. 2 Ijaa de (Pa.) 49 (1829) ; Weeks v. Mcdlcr, 20 Kans. 57 (1878) ; 
 Dothard vTDcnson, 72 Ala. S41 (1882); Ihint V. Columbia City, 122 Mo. 
 App. 31, 97 S. W. 955 (1906) ; Cliarlestoti & W. C. R. Co. v. Atiaii-ay, 7 
 Ga App 231 66 S. E. 548 (1909), so also where the former trial resulted 
 in a disapreement. Scott v. McDonald, 83 Ga. 28, 9 S. E. 770 (1889) ; Hester 
 
 V Chambers, 84 Mich. "^62, 48 N. W. 152 (1891). Contra: JFIiitticr v. Ham- 
 lin, 12 Fla. 18 (1867) ; Atkinson v. Allen, 12 Vt. 619, 36 Am. Dec. 361 (1839). 
 So one who had served as a grand juror on the finding of an mdictment 
 is disqualified from sending as a juror on the trial for the offense or the 
 trial of a civil action arising out of the offense. Y. B. 7 Edw. IV., 4; Roy 
 
 V Godfry, l Sid. 243 (1676); Rogers v. Lamb, 3 Blackf. (Ind.) 155 (1832) ; 
 Spear v 'Spencer, i Greene, Iowa 534 (1848) ; McGehee v. Shafer, 9 Tex. 20 
 (1852) ; Hail-kins v. Andrczvs, 39 Ga. 118 (1869) ; Mcdlock v. Commissioners. 
 115 Ga. 337, 41 S. E. 579 (1902); Ryan v. State, 10 Ohio C. C. (N. S.) 
 497 (1908). .... 
 
 Where two cases arise out of the same transaction, mvolve the same 
 issues and are to be decided upon the same evidence, a juror who has tried 
 the first case may be challenged in the second. Grady v. Early, 18 Cal. 108 
 (1861) ; Baker v. Harris, i Winst. (N. Car.) 277 (1864) ; Swarnes v. Sition, 
 S8 III 155 (1871); Apperson v. Longivood, 12 Heisk. (Tenn.) 262 (1873); 
 \mith V. State, 55 Ala. i (1876) ; IVeeks v. Lyndon, 54 Yt. 638 (iSSi) ; Ste- 
 phens V. State, 53 N. J. L. 245, 21 Atl. 1038 (1891) ; Railway Co. v. Smith, 60 
 Ark. 221 (1895)^, and see Schallman v. Royal Ins. Co., 94 111. App. 364 (1901). 
 But a juror is not rendered incompetent to sit in a case merely because he has 
 previously sat in a case for a similar cause of action and depending upon the 
 same general considerations. Algier v. Steamer Marie, 14 Cal. 167 (1859) ; 
 Nugent v. Trepagnier, 2 Martin (La.) (O. S.) 205 (1812) ; Sjmth y Jlagen- 
 ^ellcr 21 Pa. St. 491(1853) ; Dew v. McDivitt, 31 Ohio St. 139 (1876) ; thari- 
 ton Plow Co'^nJImFK^ti Nebr. 384. 20 N. W. 268 (1884) ■, Comm. y. Toth, 
 145 Pa. 308, 22 Atl. 157 (1891) ; Central R. & B. Co. v. Oglctrce, 97 <ja. 325, 
 2^^ \L rwnri^^Tr Jennings v. Heinroth, 71 111. App. 664 (1897) ; Doyle v. 
 Offut, 135 'Ky. 296 (1909) ; Manhattan Bldg. Co. v. Seattle, 52 Wash 226, 100 
 Pac. 330 (1909) ; Commonwealth v. IVasson, 42 Super. Ct. 38 (1910)-
 
 SCHMIDT V. NEW YORK MUT. F. INS. CO. 365 
 
 and should have no influence on their minds in making up their 
 verdict. Verdict for defendants. Plaintiff excepts.^* 
 
 Dewey, J. : It was undoubtedly the ancient doctrine that jurors 
 were to render their verdict as Vv^ell upon facts within their personal 
 knov/ledge, as upon those derived from the testimony of the wit- 
 nesses duly sworn and testifying in the case. 3 Bl. Comm. 374, The 
 practice of taking jurors from the vicinage seems to have been 
 adopted under tlie notion that they might thus be the better qualified 
 from their personal acquaintance with the facts, the parties and their 
 v»'itnesses, to decide the cases that might be brought them. But at 
 the present day it is thought a greater object, and more likely to se- 
 cure the due administration of justice, to submit cases to impartial 
 and unbiased jurors ; and that those are less likely to be so who have 
 come from the immediate neighborhood of the parties, and have 
 been either eye witnesses to the facts, or have had their minds im- 
 bued with the popular feeling as to the merits of the controversy. 
 
 With this change as to the proper qualifications of a juror, it 
 has very naturally come to be well settled that a juror can not give 
 a verdict founded on facts in his own private knowledge. If the 
 juror knows any particular fact material to the proper decision of 
 the case, he ought to be sworn as a witness in open court, and be 
 publicly examined, so that his evidence, like that of other v/itnesses, 
 may first be scrutinized as to its competency and bearing upon the 
 issue, and for the further reason that the court and the parties may 
 know upon what evidence the verdict was rendered, i Stark. Ev. 
 499 is direct to this point. The views of this court in the cases of 
 Parks V. Boston, 15 Pick. (Mass.) 209, 210; Patterson v. Boston, 
 20 Pick. (Mass.) 166, and Murdoch v. Sumner, 2.2 Pick. (Mass.) 
 156, in all which the subject was somewhat considered fully accord 
 witli the principle above stated. A distinction was taken in those 
 cases as to the juror's applying his own general knowledge and ex- 
 perience to the examination of the case, in estimating the weight of 
 the evidence and in assessing damages. While to this extent the 
 juror may properly call to his aid his personal knowledge, learning 
 and experience, as was properly held in those cases, yet no sanction 
 was given to his acting upon his knowledge of a particular fact, 
 knovv-n only to himself, and not a matter of common observation or 
 general knowledge.*^ 
 
 Exceptions overruled. 
 
 " The statement o£ facts is abridged and the argument of counsel and 
 part of the opinion of the court are omitted. 
 
 "Accord: Bennct v. Hartford Hundred, Style, 223 (1650); Wright v. 
 Crump, 7 Mod. I (i702'> : Briinxnn v. Graham. 2 Yeates (Pa .) 166 (1796); 
 Ottovja Gas Light & Coke ~Co. v. Graham, 28 111. 73, 81 Am. Dec. 263 (1862) ; 
 Sim Mpn \'- Kent, gPhWajF'd.) 30 (1871 ) ; Griffin v. Ilarriman, 74 Iowa 436, 
 38 NrW. 139 (i«88) ; IVinslow v. Morrill, 68 Maine 362 (1878) ; Garside v. 
 Ladd Watch Case Co., 17 R. I. 691, 24 Atl. 470 (1892). Compare Kitsinger v. 
 .Sanborn, 70 111. 146 (1873) ; State v. Maine Cent. R. Co., 86 Maine ^09, 29 Atl. 
 1086 (1894). 
 
 _ "A juror having knowledge of incidental facts, or those collateral to the 
 main issue of the case, is not thereby rendered incompetent to rJt in that 
 case. But, where tlie juror has such knowledge of material facts as will
 
 366 TRIAL 
 
 r 
 
 ARCHIMEDES SMITH v. TIMOTHY D. EAMES. 
 
 Supreme Court of Illinois, 1841. 
 
 4 ///. 76. 
 
 Breese, J.: This was an action of assumpsit, brought in the 
 Morgan Circuit Court, by Eames against Smith, in which a judg- 
 ment was rendered for the plaintiff, from which an appeal was taken 
 to this court.**' 
 
 As to the first point, the bill of exceptions taken in the cause, 
 states, tliat upon calling a jury, after the defendant had exhausted 
 his peremptory challenges, Joseph T. Taggart was called as a juror, 
 and upon being questioned by defendant's attorney, whether he had 
 formed and expressed an opinion in relation to the right of the plain- 
 tiff to recover, answered that he had both formed and expressed an 
 opinion. Upon being asked, by plaintiff's counsel, whether he had 
 formed his opinion from conversing with the witnesses, or from his 
 own knowledge of the facts, or from information derived from the 
 parties, or from rumor, he answered, from rumor. Upon being 
 asked, by defendant's attorney, whether he knew who the witnesses 
 were, he said he did not. Upon being asked, by the defendant's 
 counsel, whether he still entertained the opinion he had heretofore 
 formed, as to which party ought to succeed in the matter, he an- 
 swered, he did, if what he had heard was true. The juryman was 
 not interrogated as to his belief of the truth of the rumors to which 
 he referred, as the bill of exceptions states. The defendant's at-j 
 torney challenged him for cause, which the court disallowed, andi 
 he was sworn as a juror. 
 
 In support of the challenge, the appellant's counsel has referred 
 to Co. Litt. 157 a. b. ; 2 Peter's Cond. R. 499-5oo; 2 Johns. (N. Y.) 
 194; 7 Cow. (N. Y.) 122 ; Buller's N. P. 307; i Johns. (N. Y.) 316; 
 I Cow. (N. Y.) 432; I Swift's Dig. 737; i Burr's Trial 41, 43, 370, 
 419; 4 Wend. (N. Y.) 238, 241 ; 9 Pick. (Mass.) 496; Breese (111.) 
 29; Hilliard's Dig. 182. 
 
 The counsel for the appellee, to sustain the decision of the circuit 
 
 tend to bias his opinion, he is incompetent to sit in that case. This rule has 
 been asserted even \shere the juror swears that he is unbiased. In the appli- 
 cation of this rule it seems, therefore, to be a question addressed to the 
 sound discretion of the court, and if the inference is strong, or the pre- 
 sumption great, that the knowledge on the part of the juror is such as will 
 affect the verdict, a challenge for cause should be sustained." 63 L. R. A. 812, 
 note to State v. Stcntz, 30 Wash. 134, 70 Pac. 241, 63 L. R. A. 807 (1902). 
 Compare Blake v. MUlspaugh, i Johns. (N. Y.) 316 (1806) ; Laverty v. Gray, 
 3 Mart. (La.) (O. S.) 617 (18x5) ; Lord v. Brou.'n, 5 Den. (N. Y.) 345 (1848) ; 
 Trout V IVilliams, 29 Ind. 18 (1867) ; Buddee v. Spongier, 12 Colo. 216, 20 Pac. 
 760 (1888) ; Harris v. State, 24 Nebr. 803, 40 N. W. 317 (1888) ; Johnson v. 
 Park City 27 Utah 420, 76 Pac. 216 (1904), with Diirell v. Mosher, 8 Johns. 445 
 (1811) • Harjer v. Kean. n Serg. & R. (Pa .) 280 (1824) ; Royston v. Royston. 
 21 Ga 161 (1857) ; Burlington & M. K. Co. v. Beehe, 14 Nebr. 463 (1883) ; 
 Cradle v. Hoffman, 105 111. (1882) ; Deldaney v. Salina, 34 Kans. 532, 9 Pac. 
 271 (1886). . . , 
 
 " Part of the opinion upon another pomt is omitted.
 
 SMITH V. EAMES 367 
 
 court, relies upon the case of Durrell v. Mosher, 8 Johns. 445, 3rd 
 ed. ; 6 Cow. (N. Y.) 564; 7 Cow. (N. Y.) 122, 123; i Burr's Trial 
 369, 370, 380. 38 1 » 408 (note), 418; I Cow. (N. Y.) 438. 
 
 We have carefully examined all the cases referred to, with a 
 desire to arrive at some rule Vv^hich shall be suited to our condition, 
 which can be practically enforced, and which shall do no violence to 
 the right of every person to a fair and impartial trial by jury. There 
 is not a perfect coincidence of views in the several cases referred to, 
 nor entire harmony of opinion. The old rule was, that the more a 
 person knev/ of the facts, of his own knowledge, the better qualified 
 v/as he to perform the functions of a juror. The doctrine now is, 
 in England, that if a juror has declared that the prisoner is guilty, or 
 will be hanged, or the like, if made out of ill will to him, it is good 
 cause of challenge ; but if it was made from personal knowledge of 
 the facts in the cause, it is no ground of challenge. 
 
 The leading case in this country upon tliis subject, is that of 
 Burr, indicted for treason. The opinions and resolutions of Chief 
 Justice Marshall, who tried the case, upon the various objections 
 made to jurors, as they were called, have been received favorably 
 by all the courts of the several states, and it will not be difficult, 
 aided by the light which his brilliant mind has shed upon the sub- 
 ject, to come to a conclusion, correct in principle, and calculated to 
 promote justice. For this purpose, it will be unnecessary to enter 
 into an elaborate review of all the cases cited, but to state simply the 
 general conclusions to which they all tend, and that is, that a juror 
 is disqualified, if he has expressed a decided opinion upon the 
 merits of the case. If, without any qualifications whatever, a juror 
 says the defendant is guilty, or the like, or that the plaintiff ought to 
 recover in the action, or that the verdict ought to be against the 
 plaintiff, he would be disqualified, as not standing impartial betweenj 
 the parties. 
 
 If, on the contrary, a juror says that he has no prejudice or bias'^^ 
 of any kind for or against either party ; that he has heard rumors in( 
 relation to the case, but has no personal knowledge of the facts ; and, ' 
 from the rumors, has formed and expressed an opinion in a particu- 
 lar way, if they are true, without expressing any belief in their) 
 truth, we should think he would not be disqualified. By hearing re- 
 ports of a case, not from the witnesses, nor from the parties, but 
 from common fame, and making up an opinion on them, the juror 
 has not prejudged the case, unless the case should turn out to be 
 precisely as the rumors were, a thing very improbable; he has ad- 
 judged only the rumors, varying in their hue and color as they 
 circulate through the country. The human mind is so constituted, 
 that it is almost impossible, on hearing a report freely circulated in a 
 county or neighborhood, to prevent it from coming to some conclu- 
 sion on the subject; and this will always be the case while the mind 
 continues to be susceptible of Impressions. If such impressions be- 
 come fixed, and ripen into decided opinions, they will influence a 
 man's conduct, and will create, necessarily, a prejudice for or against 
 the party towards whom they are directed, and should disqualify him 
 as a juror.
 
 368 TRIAL 
 
 Opinions arc formed in different ways: with some, their pre- 
 conceived prejudices arc their opinions; with others, a current 
 rumor fixes their hchcf ; with another class, the most idle gossipinsf 
 is received as truth itself; while others hesitate long, and demand 
 testimony, before they will assent or dissent. Taking mankind as we 
 lind them it may not be unreasonable to believe, that by far the 
 greater part come to no certain conclusion on a statement of facts, 
 until they have evidence of their existence, though they may have 
 impressions in regard to them, which, if not carefully examined, 
 might seem to be fixed opinions, and when called on, it would be so 
 stated. A distinction must be made between such impressions and 
 opinions, and in this consists the rule. 
 
 In the case of TJie People v. Mather,^'' the court says, "There is 
 no difference between an opinion formed by being an eye-witness of 
 a transaction, or by hearing the testimony of those who were such 
 witnesses, and an opinion founded upon rumors and newspaper pub- 
 lications." This is true if a decided opinion is formed, for it matters 
 not how, or upon what it is formed, whether upon rumors or per- 
 sonal knowledge, so that it is an opinion. But there are grades of 
 opinion. That which the public instinctively forms, upon the hap- 
 pening of any striking occurrence, or of those matters which are 
 current topics of remark, should be distinguished from those delib- 
 erate convictions of the mind which are produced by maturely con- 
 sidering the f-acts and circumstances of a case, and which regulate 
 a man's conduct, or prompt him to action. If a person, without any 
 knowledge of the facts, upon the faith of rumor alone, forms a de- 
 liberate opinion, and is convinced, without any evidence, he is not 
 fit to judge his fellows. 
 
 But if, in obedience to the laws of his organization, his mind re- 
 ceives impressions from the reports he hears, which have not become 
 fixed and decided, though they may seem to be at first, he would not 
 be disqualified, and this is in accordance with the views expressed by 
 Chief Justice jMarshall in Burr's case. He says, "Light impressions, 
 which may be supposed to yield to the testimony that may be offered, 
 Nvhich may leave the mind open to a fair consideration of that testi- 
 jrnony, constitute no sufficient objection to a juror; but that those 
 strong and deep impressions which will close the mind against the 
 testimony that may be offered in opposition to them, which will 
 combat that testimony and resist its force, do constitute a sufficient 
 objection to him."*^ 
 
 We take it, then, as settled, that the opinion which is_to dis- 
 qualify, must be a decided one, not an impression merely/wHich 
 rumor may have produced, and which another report may dissipate. 
 The opinion must, also, be a positive one, not depending upon any 
 contingency, not hypothetical. All the cases referred to, recognize 
 this distinction. In Diirrell v. Mosher,*^ it w'as held, that where a 
 juror, on being called up, said he had no personal knowledge of the 
 matters in dispute, but that if the report of the neighbors was cor- 
 
 *' 4 Wend. (N. Y.) 241 (1830). 
 
 "i Burr's Trial 416. 
 
 *'8 Johns. (X. Y.) 445 (1811).
 
 SMITH V. EAMES 369 
 
 rect, the defendant was wrong, and the plaintiff was right, was quah- 
 tied ; for the reason that the opinion was not a fixed and positive 
 one, that it depended on the hypothesis of the truth of the reports. 
 This case has never been overruled, and is approved by all the sub- 
 sequent cases. It establishes the principle, and for good reasons, that 
 there must be a decided conviction of the mind, on the facts, before 
 the juror can be considered as having formed an opinion which will 
 disqualify. Here the juror showed which way his opinion was, if 
 the reports were true, that he was against the defendant, who had 
 challenged him. In the case before the court, this does not appear. 
 It is not shown by the record, how the opinion of the juror was, 
 whether for or against the party challenging him ; and it can not be 
 known whether the party challenging was prejudiced by his being 
 sworn. In most of the cases cited, the opinion of the juror was made 
 known, as in the case in 7 Cow. (N. Y.) 381. There the juror had 
 heard the witnesses in a former trial of the same cause, and had 
 made up his mind conclusively, that the defendants were guilty; and 
 he had freely expressed this opinion. It is, however, the opinion of 
 the majority of the court, that this circumstance should make no 
 difference in the principle. A party ought not be compelled to abide 
 the risk of the opinion which may be formed, being adverse to him, it 
 being considered sufficient that he has formed and expressed an 
 opinion. 
 
 It is not perceived that the case at the bar, differs in any essential 
 particulars from the case of Durrell v. Mosher. Taking the whole 
 statement of the juror in connection, he said he had formed and ex- 
 pressed an opinion from rumor as to who ought to recover, and that 
 he was still of the same opinion, if the rumors were true, placing his 
 opinion entirely upon the hypothesis of the truth of the rumors. He 
 had an opinion from rumor, if the rumors were true, leaving it 
 clearly inferible, that if they were not true he had no opinion. At 
 most, then, he showed that he entertained not a fixed, decided, posi- 
 'five opinion, upon the merits of tlie case, but had formed just such 
 an one as all persons instinctively form, when they hear a narrative 
 of any occurrence, or the history of any transaction. He showed 
 that he had come to no certain conclusion upon the facts, tliat his 
 mind was in such a condition as to be open to the testimony that 
 might be offered, and prepared to yield to its force. 
 
 On Burr's trial, Hamilton Morrison was called as a juror, and he) 
 stated that he had frequently declared, that if the allegations againstf* 
 the prisoner were true, he was guilty; and he was decided to be an) 
 impartial juror. In the same case, Mr. Parker was called as a juror, 
 and being examined by the court, said he had formed no opinion of 
 the truth of the depositions, but if they were true. Burr's designs 
 were treasonable ; and he was retained as a juror. Opinions of tliis 
 character, which are hypothetical, do not disqualify. 
 
 We then lay down this rule, that if a juror has made up a decided) 
 opinion on the merits of the case, either from a personal knowledge . 
 of the facts, from the statements of witnesses, from the relations of ■ 
 the parties, or either of them, or from rumor, and that opinion is 
 
 24 — Civ. Proc.
 
 370 TRIAL 
 
 positive, and not hypothetical, and such as will probably prevent him 
 from giving an impartial verdict, the challenge should be allowed. 
 
 If the opinion be merely of a light and transient character, such 
 as is usually formed by persons in every community, upon hearing 
 a current report, and which may be changed by the relation of the 
 next person met with, and which does not show a conviction of the 
 mind, and a fixed conclusion thereon, or if it be hypothetical, the 
 challenge ought not to be allowed ; and to ascertain the state of mind 
 of a juror, a full examination, if deemed necessary, may be allowed. 
 
 Testing this case by this rule, we think the juror was properly 
 received.^*' 
 
 Judgment affirmed. 
 
 Scates, J., dissented on tlie application of the law to the facts. 
 
 SECTION 3. PROCESS FOR WITNESSES. 
 
 St. 5 Elis. Ch. 9, Sec. 12 
 
 If any person or persons, upon whom any process out of any 
 of tlie courts of record within this realm or Wales shall be served to 
 testify or depose concerning any cause or matter depending in any 
 of the same courts, and having tendered unto him or them, accord- 
 ing to his or their countenance or calling, such reasonable sums of 
 money for his or their costs and charges, as having regard to the 
 distance of the places is necessary to be allowed in that behalf, do 
 not appear according to the tenor of the said process, having not a 
 lawful and reasonable let or impediment to the contrary; that then 
 the party making default, to lose and forfeit for every such offense 
 ten pounds, and to yield such other recompense to the party ag- 
 grieved, as by the discretion of the judge of the court, out of which 
 the said process shall be awarded, according to the loss and hindrence 
 that the party which procured the said process shall sustain, by rea- 
 son of the non-appearance of the said witness or witnesses ; the said 
 several sums to be recovered by the party so grieved against the 
 offender or offenders, by action of debt, bill, plaint or information, 
 
 "Accord: Mann v. Glover, 14 N. J. L. 195 (1833) : Irvine v. Tifmhprnmn'M 
 Bank. 2 Watts & S. ( Pa.) 190 (1841) ; Thompson v. Updegraff, 3 \V. Va. 629 
 (1869) ; Collins v. Burns, 16 Colo. 7, 26 Pac. 145 (1891) ; Kumli v. Southern 
 Pac. Co., 21 Ore. 505, 28 Pac. 637 (1892) ; Coghill v. Kennedy, 119 Ala. 641, 
 24 So. 459 (1898); Pine v. Callahan, 8 Idaho 684, 71 Pac. 473 (1902) ; 5"/. 
 Louis, I. M. & S. R. Co. V. Stamps, 84 Ark. 241, 104 S. W. 1114 (1907) ; Fur- 
 long V. American Central Fire Ins. Co., 136 Iowa 499, 113 N. W. 1087 (1907) ; 
 Smith v. Chicago B. & O. R. Co., 81 Nebr. 186, 115 N. W. 755 (190S) ; Noo- 
 nan v. Luther, 128 App. Div. 673, 112 N. Y. S. 898 (1908) semble; In re Hanna- 
 hcr's Will, 155 Iowa 73, 135 N. W. 34 (1912). Compare Blake v. Millspaugh, 
 I Johns. (N. Y.) 316 (1806) ; Theobald v. St. Louis Tr. Co., 191 Mo. 395, 90 
 S. W. 3S4 (1905) ; Shane v. Butte FJec. R. Co., 37 Mont. 599, 97 Pac. 958 
 (1908) ; Devlin v. Devlin, 89 S. Car. 268, 71 S. E. 966 (1911)-
 
 
 COURTNEY V. BAKER 37I 
 
 in any of the Queen's Majesty's courts of record, in which no wager 
 of law, essoin or protection to be allowed. ^^ 
 
 X^COURTNEY V. BAKER. ^ 
 
 Supreme Court of New York, 1846. 
 
 3 Denlo (N. Y.) 27 
 
 Error to the mayor's court of the city of Albany. The cause 
 came into the mayor's court upon appeal from a judgment rendered 
 by a justice of the peace. The action was brought by Baker against 
 Courtney and wife, to recover the penalty of fifty dollars alleged to 
 have been forfeited to the plaintiff by the statute (2 R. S. 400, sec. 
 43),^^ for the failure of the defendant, Mrs. Courtney, to attend 
 court as a witness, pursuant to a subpoena served upon her in a suit 
 in this court in which Baker was tlie plaintiff and one Wilkins was 
 
 " "A writ of subpcena ad testificandum is a process issued by legal author- 
 ity to summon witnesses under penalty to appear at the time commanded and 
 the place therein designated, before some officer, body or court, to give evi- 
 dence upon the matter pending." Per Shull, J., iri_//o7i'<??- v. Lnn7.'cr , i^ P a. 
 •Dist. R. 745 (1904). The writ is directed to the person who is commanded to 
 appear and testify; consequently it may be served by a constable, sheriff or 
 any private person who is capable of proving the service, vmless otherwise 
 provided by statute. RespublicQ y. St, CinW^ -z P all (Pa,) loi (1877) ; Smith 
 V. Wilbur, 35 Vt. 133 (1862). 
 
 At the early common law, one who, without interest in the cause, ap- 
 peared voluntarily as a witness on behalf of another was liable to be sued 
 for maintenance bj- the adverse partv. Thaver on Evidence. 12^ to 120 ; Y. B. 
 II Hen. VI, 41; Y. B. 21 Hen. VI, 15; Y. B. Hen. VI, 6. In chancery, "Per- 
 sons whose vvitnesses were frightened by the prospect of proceedings for 
 maintenance applied to the chancellor for a subpoena directed to the v/itnesses. 
 The witnesses, being thus compelled to testify, ran no risk of proceedings 
 being taken against them." Holdsworth Hist. Eng. Lavi-, vol. Ill, p. 4^. 
 Wigmore on Evidence, vol. III., § 2190. The statute of Elizabeth, supra 
 (1562), provided for the issuing of process to compel the attendance of wit- 
 nesses, but at first it was not the practice to issue an attachmicnt against a 
 witness for disobedience of a subpoena; the injured party was left to his 
 remedy by action at law. Havithbury v. Harvey, Cro. Eliz. 131 (1588) ; Good- 
 win v. Jl'cst, Cro. Car. 522, 540 (1639) ;. Proceedings by attachment were 
 first taken in the Kings Bench. Hammond v. Stezvart, 1 Str. 510 (1721); 
 Wyatt v. IVinkzvorth, 2 Str. 810 (1729); Wyatt V. IVingford, 2 Ld. Raym. 
 1528; Small V. Whitmill, 2 Str. 1054 (1737) ; Chapman v. Poinion, 2 Str. 1150 
 (1741), and the practice was subsequently followed by the Common Bench. 
 Compare Stephenson v. Brookes, Barnes, 2>3 (i74o) with Brodie v. Tickett, 
 Barnes 35 (1750). In Bowles v. Johnson, i W. Bl. 36 (1748), Lee, C. J., is 
 reported as saying : "Attachments are a new practice. I remem.ber the first ' 
 motion for them. It was then agreed that the same restrictions should be 
 used in attachments as in actions on the 5 Eliz., one of which is that a tender 
 of expenses should be made at the service of tlie subpoena." Hallet v. Hears, 
 13 East 15 (1810) and note; Milsom v. Day, 3 Afoore 2>33 (1829) ; Barrow v. 
 Humphreys, 3 B. & Aid. 598 (1820). For the modern English practice .see 
 rules of the supreme court, order XXXVII, rules 20, 26 to 34. In re Batson, 
 70 L. T., N. S., 382 (1894); Raymond v. Tapson, L. R. 22 Ch. Div. 430 
 (18S2). 
 
 "X. Y. Code of Civil Procedure, §§ 853, 855.
 
 0/ - 
 
 TRIAL 
 
 (lofeiulant. which was noticed for trial at the Albany circuit in April, 
 1S45. The pica was the .q:cncral issue. The plaintiff proved that 
 !Mrs. C, who resided in Albany, was served with a subpoena in tliat 
 cause to appear at the circut on the fifteenth day of April, 1845; 
 tliat the cause was tried on the twenty-third day of the same month, 
 tlic witness not being present, and the plaintiff was nonsuited. Mrs. 
 C. was called as a witness on that day, but not appearing, her default 
 was entered. At the time of serving the subpoena, which was on the 
 nintli day of April, the plaintiff paid Mrs. C. fifty cents as witness 
 fees, which she received, but intimated that she should not attend. 
 
 The defendant's counsel offered to prove that Mrs. C. attended 
 tlie court on the fifteenth day of April, and for three or four days 
 thereafter ; that her husband then requested the plaintiff to pay her 
 fees, adding that if he did not do so she would not attend further; 
 but he refused to make any further payment. He also offered to 
 show tliat when the plaintiff subpoenaed Mrs. C. she told him she 
 knew nothing about the matter, and that the plaintiff replied, "I 
 know that, but you hzve been talking about me and shall attend 
 court." The whole of the evidence so offered was objected to by 
 tlie plaintiff's counsel and excluded by the court and tlie defendant's 
 /Counsel excepted. The court directed the jury, if they believed the 
 /evidence, to find a verdict for the plaintiff for the penalty of fifty 
 I dollars, and the jury found accordingly, and judgment was there- 
 upon rendered for the plaintiff. 
 
 Beardsley, J. : By the act of 1840 the fees of a witness are 
 "fifty cents for each day while attending any court or officer; and 
 if the witness resides more than three miles from the place of at- 
 tendance, travelling fees at the rate of four cents per mile, going and 
 returning." Laws, 1840, p. 331, sec. 8.^^ A witness is not bound in 
 any case to attend unless duly subpoenaed, for which purpose the 
 statute declares, amongst other things, that "the fees allowed by law 
 to such witness for travelling to and returning from the place where 
 he is required to attend, and the fees allowed for one day's attend- 
 ance shall be paid or tendered to such witness." 2 R. S. 400, sec. 
 42, sub. 3.°* If the witness, when duly subpoenaed refuse or neglect 
 to attend, he is responsible to the aggrieved party for all damages, 
 and may be proceeded against in various ways. 
 
 I. By action on the case at common law. It is the duty of the 
 witness to obey the subpoena, and in this action, the injured party 
 may recover such damages as result from the violation of duty by 
 the witness, i Ch. PI. 159, 7th Am. ed. ; i Stark. Ev. 80, Phil. ed. 
 1842; I Phil. Ev. 7; Hasbrouck v. Baker, 10 John. 248; Pierson v. 
 lies, Doug. 561. This remedy is recognized by the statute, which, so 
 
 "N. Y. Code of Civil Procedure, § 3318; O'Rourke V. Degnon Realty Co., 
 139 App. Div. 695, 124 N. Y. S. 364 (1910). 
 
 "X. Y. Code of Civil Procedure, § 852. In Pennsylvania the ac t_o£-Fgb- 
 ruary23, 1889, P. L. 8, § i, P. & L. Dip. (2d*ed.) 7593, allows witnesses one 
 dollar fOT^aclr day's attendance at court and three cents for each mile travel- 
 inj? to and from court. Higher fees are, however, given by local statutes. In 
 Philadelphia the witness fee is $1.50 per diem. See also New Jersey Comp. 
 Stats. (1910), p. 2288, § 2; Mass. Rev. Laws (1902), vol. II, p. 1733.
 
 COURTNEY V. BAKER 373 
 
 far, is in affirmance of the common law. 2 R. S. 400, sec. 43. See 
 also 5 Eliz., ch. 9, sec. 12, in Doug. 556, and i Phil. Ev. 3.^^ 
 
 2. By attachment, and this at common law as well as by the 
 statutes last referred to. See also 2 R. S. 535; and 540, sec. 34; 
 Pearson v. lies, supra; Amey v. Long, 9 East 483; i Phil. Ev. 7;-- 
 2 Tidd's Pr. 8, 8tli Phila. ed.,' 1840.=^ 
 
 3. By an action for the penalty of fifty dollars. The revised 
 statutes declare that "every person who shall be duly subpoenaed to 
 attend as witness" "shall be bound to attend, according to tlie com- 
 mand of such subpoena, and for every failure so to attend, without 
 a reasonable excuse," "shall forfeit to the aggrieved party the sum 
 of fifty dollars." The English statute of 5 Eliz., already referred to, 
 is to the same effect ; it imposes a penalty of ten pounds on any wit- 
 ness v/ho makes default and refuses to appear, "having not a lawful 
 or reasonable let or impediment to the contrary," the said penalty 
 "to be recovered by the party so aggrieved."^^ 
 
 This penalty is given to the "aggrieved party," and the action 
 can be sustained by no one else. Plence, as in an action on the case 
 at common law for disobeying a subpoena, the plaintiff can only re- 
 cover the penalty by showing he was damnified by the laches of the 
 witness ; if no loss followed, the penalty was not incurred. A party 
 "does not acquire a right to this penalty by the mere refusal of a 
 witness to attend when duly subpoenaed. Something more is re- 
 quired. It must be shown that the witness was material, and that 
 damages resulted from his non-attendance. In Goodwin v. West, 
 which was an action on the statute of 5 Eliz. to recover tlie penalty 
 of ten pounds, it was moved in arrest of judgment that the declara- 
 tion v/as not good, and the third exception taken by counsel was, that 
 tlie plaintiff did not show that he was endamaged hy the non-appear- 
 ance of the witness ; to which it was answered, "that the action 
 being brought only for ten pounds and not for furthei dam.ages, it 
 is well enough, and the ten pounds is due for her non-appearance to 
 the king and tlie party. But all the justices held that the declaration 
 was ill for tliis cause ; for there ought to be a party grieved by the 
 non-appearance, otherwise there is no cause for forfeiture ; and so 
 is the express scope and v^^ords of the statute." In B. R. 15 Car. i. 
 
 ^^Masterman v. Jiidson, 8 Bingh. 224 (1832) ; Heermans v. Williams, 11 
 Wend. (N. Y.) 636 (1834) ; Prentiss v. Webster, 2 Doug. (Mich.) 5 (1845) ; 
 Hurd V. Swan, 4 Den. (N. Y.) 75 (1847) ; Robinson v. Trull, 4 Cush. (Mass.) 
 249 (1849) ; Connett v. Hamilton, 16 Mo. 442 (1852) ; Lane v. Cole, 12 Barb. 
 (N. Y.) 680 (1852) ; McCall v. Butterworth, 8 Iowa 329 (1859) ; Lamont v. 
 Crook, 6 M. & W. 615 (1840) ; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390 
 (1879). 
 
 ^"Res^mb.. V P uane. A Yeates (Pa.) 347 (1807) ; Regina v. Russell, 7 Dowl. 
 693 (1839) ; Chicago & A. R. Co. v. Dunning, 18 111. 494 (1857) ; Burns v. 
 Superior Court, 140 Cai. i, y;^ Pac. 597 (1903) ; Fairfield v. U. S., 146 Fed. 508 
 (1906) ; Commonwealth v. Klein, 40 Pa. Super. Ct. ^jks Cid oq') ; Leber v. U. 
 S., 170 Fed. 881 (1909) i^ People v. Keid, 139 App. Div. 551, 124 N. Y. S. 205 
 (1910). 
 
 '''McKeon v. Lane, i Hall (N. Y.) 319 (1828) ; Smith v. Merwin, 15 
 Wend. (N. Y.) 184 (1836); Nelson v. Eiijell, 2 Swan (Tenn.) 271 (1852); 
 Carrington v. Hutson, 28 Hun (N. Y.) 371 (1S82) ; Lombard v. Smith, 2,7 Ore. 
 23, 60 Pac. 388 (1900).
 
 374 TRIAL 
 
 Cro. Car. 522, 540, Sir Wm. Jones 430. The same point was ad- 
 jiuls^cd in the conunon pleas, which judgment was affirmed on writ 
 of error, in the case of Madison v. Shore, 9 Wm. 3, though this was 
 admitted to be "contrary to a judgment in the Hke case, anno 30 EUz., 
 where the Hke exception was taken and overruled." 5 Mod. 355 ; i 
 Salk. 206; I Comb. 449, 458. See also 3 Bac. Ab. Evidence D ; Pear- 
 son V. lies, supra; Heermans v. Williams, 11 Wend. (N. Y.) 636; 
 MeKeon v. Lane, i Hall, 319; Masterman v. Jndson, 8 Bing. 224. 
 A precedent for a declaration for the penalty on 5 Eliz. is given in 
 7 \\'entworth's PI. 243. It alleges that the evidence that the witness 
 could have given would have been material, and that it was nec- 
 essary for tlie party. The declaration in Pearson v. lies, supra, con- 
 tains a similar averment. I regard the principle as sound and en- 
 tirely settled by authority."^ 
 
 If a defaulting witness Avas wholly unable to give material evi- 
 dence in the case, it is manifest that no injury could have arisen for 
 his non-attendance, and consequently he could not have incurred 
 tlie penalty. In this case, the defendants offered to prove a direct 
 and unqualified admission by the plaintiff, that he was aware the 
 witness knew nothing about the matter in question in tlie cause 
 wherein she had been subpoenaed, followed by a declaration that she 
 had been talking about him, and therefore should attend the court. 
 This evidence was pertinent to the issue, and should not have been 
 rejected. It would have tended to prove that the witness was in no 
 way material to the plaintiff, and might have satisfied the jury that 
 he had sustained no injury by her non-attendance. This was an es- 
 sential point in the case, and the court clearly erred in excluding the 
 evidence. I will add, that if, in truth, the witness was subpoenaed 
 for the purpose of annoyance, and not because she was regarded as 
 material, it was a gross abuse of tlie process of the court, and as 
 such deserved to be punished as a palpable contempt of its authority. 
 
 But this is not all, for no forfeiture occurs unless the fail- 
 ure of the witness to attend is "without reasonable excuse." Now 
 let it be granted, which is all the plaintiff could claim, that but 
 for what I am to state, the witness would have been bound to 
 attend the court from the fifteenth of April, the day named in the 
 subpcEna, to the twenty-third, when the cause was tried. The witness 
 had been paid for one day's attendance and no more, and it was of- 
 fered, by the defendants, to prove that she attended on the fifteenth, 
 as tlie subpcena required, and for three or four days thereafter; 
 that the plaintiff was then called upon to pay her fees, and was in- 
 formed that she would not remain at court unless they were paid, 
 and that he refused to make any further payment. This evidence 
 the plaintiff objected to, and it was excluded by the court. Upon 
 
 '^Conling v. Coxe, 6 C. B. 703 (1848) ; Robinson v. Trull, 4 Cush. (Mass.) 
 249 (1849) ; Carrington v. Hutson, 28 Hun (N. Y.) 371 (1882) ; Landenbtirg 
 V. Pennsylvania R. Co.. 66 N. J. L. 187 (1901) ; Nolan v. Grider, 135 Cal. 49, 
 67 Pac. 9 (1901). Assumpsit will lie to recover back money paid for expenses 
 to a witness who has not attended. Martin v. Andrews, 7 El. & Black, i 
 (1856) ; Please v. Bamford. 96 Maine 23, 51 Atl. 234 (1901). Contra: Letgh- 
 ton V. TiLombly, 9 N. H. 483 (1838).
 
 BARRUS V. PHANEUF 375 
 
 what principle it was rejected, I confess I do not see. If such was \ 
 the case the plaintiff alone was in fault, and the witness had a most ' 
 "reasonable excuse" for leaving the court. She was entitled to the 
 daily sum of fifty cents, and it was the plaintiff's duty to see it 
 paid to her. The witness was not bound to trust the party, and rely 
 on him for future payment; the allowance to witnesses is for their 
 daily sustenance, and a refusal to pay is a virtual discharge of the 
 witness, and a very sufficient excuse for omitting further attendance 
 in the cause. If this plaintiff was thus endamaged, it was his own 
 fault, and he must bear the consequences, whatever they may be. 
 No right of action could accrue in his favor under such circum- 
 stances, and no penalty was incurred by the witness. A party who 
 would seek redress against a witness, must see that he is not himself 
 in fault, and that everytliing has been done which the witness had a 
 right to exact. ^x 
 
 The court erred in rejecting the evidence offered on these points,.' 
 and the judgment must be reversed.^^ 
 
 Judgment reversed. 
 
 /^ 
 
 BARRUS V. PHANEUF. 
 
 Supreme Judicial Court of Massachusetts, 1896. 
 
 166 Mass. 123 
 
 Contract to recover extra compensation as an expert. At the 
 trial in the superior court, before Maynard, J., the jury returned a 
 verdict for the plaintiff; and the defendant alleged exceptions, the 
 nature of which appear in the opinion. 
 
 Allen, J. : The jury must have found upon the evidence that the 
 defendant engaged the plaintiff to go into court at a future day, and 
 
 "^In civil cases a witness is not bound to attend court unless his fees and 
 expenses have been paid or tendered. Chapman v. Pointon, 2 Str. 1150 
 (1740) ; Bowles v. Johnson, i Wm. Bl. 36 (1748) ; Fuller v. Prentice, i H. Bl. 
 49 (1788) ; Ashton v. Haigh, 2 Chit. 201 (1814) ; Ogden v. Gibbons, 5 N. J. 
 L. SiB (1819); Betteley v. McLeod, 3 Bingh. N. C. 405 (1837); Flurd v. 
 Szvan, 4 Den. (N. Y.) 75 (1847) ; Bednlieu v. Parsons, 2 Minn, i (1858); 
 Bliss v. Brainard, 42 N. H. 2SS (i860) ; Richards v. Goddard, L. R. 17 Eq. 
 Cas. 238 (1873) ; Trl^ihlp V M^ lhollen. 8 Pa Dist. aax (\9>qq) ; Hollister V. 
 People, 116 111. App. 338 (1904) ; People'v. Healey, 139 IH- App. 363 (1908). 
 Contra: Smith v. Barger, 9 Yerg. (Tenn.) 322 (1836), and compare H olden v. 
 Shove, I R. I. 287 (1850) ; N orris v. Hassler, 23 Fed. 581 (1885). A witness 
 in a civil case is not bound to attend court after the time for which his fees 
 have been paid or tendered. Atzvood v. Scott, 99 Mass. 177 (1868) ; Mattocks 
 v. Wheat on, 10 Vt. 493 (1838) ; Muscott v. Range, 27 How. Pr. (N. Y.) 85 
 (1863). In criminal cases the rule, in the absence of a statute to the contrary, 
 is that no tender of fees is necessary upon the service of the subpoena. Rex 
 v. Cooke, I C. & P. 321 (1824) ; Rex v. Sadler, 4 C. & P. 218 (1830) ; Ex parte 
 Chamberlain, 4 Cow. (N. Y.) 49 (1825) ; Henley v. State, 98 Tenn. 665, 41 
 S. W. 352, 1104, 39 L. R. A. 126 (1897) ; Hancock v. Parker, 100 Ky. 143, 37 
 S. W. 594, 18 Ky. L. 622 (1896) ; Dixon v. People, 168 111. 179. 48 N. E. 108, 
 39 L. R. A. 116, 179 and notes (1897) ; State v. Kaemmerling, 83 Kans. 383, 
 III Pac. 443, 31 L. R. A. (N. S.) 781 and notes (1910).
 
 376 TRIAL 
 
 testify for liim as an expert, in rcj^ard to a matter which the plain- 
 tiff hatl examined as a civil engineer. From the dates (?iven, it would 
 seem that tliis enc[aj:^ement was six weeks before the trial. The plain- 
 tilY agfrecd to do this, and talked over the matter, and went into 
 court and testilied, and during the process of the trial advised the 
 defendant's attorney in regard to the questions to be asked to himself 
 and to the other witnesses. 
 
 At some time after he had so agreed to appear and testify, the 
 plaintiff was regularly summoned by the defendant as a witness, 
 and was paid the statutory fees, and made no objection thereto, and 
 made no claim for extra compensation ; and it would seem that dur- 
 ing his testimony he was not, in fact, asked any questions which 
 called for his opinion as an expert. 
 
 The defendant contends tliat, if there was an express promise 
 to pay tlie plaintiff extra compensation, such promise was with- 
 out consideration ; and that the plaintiff did no more tlian he was 
 legally required to do under his subpoena. 
 
 In this commonwealth, every justice of the peace may issue 
 summonses for witnesses in civil cases. Stat. 1885, ch. 141. This is 
 usually done by the party's attorney, if he be a justice of the peace, 
 or by a justice upon the mere request of a party or of his attorney, 
 v/ithout any consideration of the materiality of the evidence or of 
 other circumstances. No doubt here, as in England, the court might 
 interpose to prevent this privilege from being used oppressively. 
 Raymond v. Tapson, 22 Ch. D. 430. But usually no question arises 
 unless a witness fails to attend, in which case the court may issue a 
 warrant to bring him in. Pub. Stat., ch. 169, sec. 6. The issuing of 
 this warrant is a matter of discretion, and before issuing it the court 
 usually must be satisfied that the testimony is material, and that the 
 failure to attend is without reasonable excuse. We should be slow to 
 admit that the court would be without power to require the attend- 
 ance of a professional or skilled witness, upon a summons duly 
 served, and with payment of the statutory fees, although he was 
 unacquainted with the facts and could testify only to opinions; but 
 such power would hardly be exercised unless, in the opinion of the 
 court, it was necessary for the purposes of justice. In re Roelker, i 
 Sprague, 276 ; IV ebb. v. Page, i Car. & K. 23 ; Parkinson v. Atkinson, 
 31 L. J. (N. S.), C. P. 199 ; I Whart. Ev., sees. 380-383. Even in such 
 case the court would probably be without the power to compel the 
 witness to make a study of the case beforehand, or to pay attention 
 to the body of the evidence introduced by the parties with a view 
 to forming an opinion thereon. It would seem that one who is sum- 
 moned as an expert would perform all that the court could require 
 of him if he should hold himself in readiness to be called upon to 
 testify to such opinions as he might have, when his turn should come. 
 People V. Montgomery, 13 Abb. Pr., (N. Y.) (N. S.), 207; Flinn v. 
 Prairie Connty, 60 Ark. 204. If a party is content to rest upon his 
 legal rights, and summons the expert whose testimony he wishes to 
 have, and pays the statutory fees, without any previous engagement 
 or understanding with him, and thus takes his chance of being able 
 to get an attachment to bring the witness into court in case he should
 
 BARRUS V. PHANEUF 377 
 
 fail to appear, and if he thus succeeds in getting the testimony which 
 he wishes and afterwards refuses to pay any special compensation, 
 the question might be directly presented whether the witness would 
 be entitled to recover anything on a quantum meruit. That question 
 does not arise here. The questions here are whether there was any 
 sufficient consideration for an express or implied promise to pay, 
 and whether there was sufficient evidence of an engagement by him 
 to' testify as an expert, upon request, which might imply a promise 
 by the defendant to pay him as an expert. 
 
 Several cases have arisen in different courts where a professional 
 witness has taken the stand without objection, and afterwards has 
 declined to give professional opinions without special compensation, 
 and has been required by the court to answer. Such decisions do not 
 strictly apply to the case before us, because in all such cases the court 
 has judicially determined that the purposes of justice require the 
 testimony of the witness. Ex parte Dement, 53 Ala. 389; Wright v. 
 People, 112 111. 540; State v. Teipner, 36 Minn. 535. In Indiana, 
 however, the court has refused to require such witness to answer 
 under such circumstances. Biichman v. State, 59 Ind. i ; Dills v. 
 State, 59 Ind. 15. In Connecticut, in respect to an ordinary witness, 
 not an expert, the court held that ordinarily an agreement to pay 
 extra fees will not be sustained, but that it might be valid where the 
 witness assumed a duty which the law would not impose on him ; and 
 the court added: "If a witness agrees with a party, that he will 
 attend and testify without being summoned, and he is not summoned 
 and so is not brought under the order or censure of the court, we 
 suppose any reasonable promise for compensation is good and may 
 be enforced ; for the proceeding or service is not under nor in pur- 
 suance of the statute." Dodge v. Stiles, 26 Conn. 463, 466, 467. A 
 casual intimation that ordinarily a witness can recover only the fees 
 allowed by law is also found in Pool v. Boston, 5 Cush. (]\Iass.) 
 219, 221.^° 
 
 In the present case, we are of opinion that, upon the facts in 
 evidence, there was sufficient consideration to support a promise to 
 pay a reasonable compensation, in addition to the statutory fees, and 
 that the jury was warranted in finding a promise to that effect, or a 
 mutual understanding that the plaintiff was to be so paid. If such 
 promise was made, or such understanding existed, the plaintiff's 
 right to recover would not be taken away or lost by his omission to 
 claim or demand extra compensation, or to notify the defendant that 
 he should make such claim, or by his acceptance of the statutory fee 
 without objection, or by the omission of the defendant at the trial to 
 put any question to him as an expert witness, and the consequent 
 
 *°Where an ordinary witness is within the jurisdiction and amenable 
 to process, an agreement to compensate him in an amount in excess of the 
 legal fees for attending court and testifying to facts within his knowledge, 
 is contrvLTy to public policy and void. Clifford v. Hughes, 139 App. Div. 
 730, 124 N. Y. S. 478 (igio) ; Collins v. Godefroy, I B. &. Ad. 950 (1831) ; 
 Dodge v. Stikes, 26 Conn. 463 (1857) ; Walker v. Cook, 2:^ HI- App. =;6i 
 (1889) ; Lyon v. Htisscy, 82 Hun 15, 31 N. Y. S. 281, 63 N. Y. St. 531 (1894) ; 
 Cowles V. Rochester Folding Box Co., 81 App. Div. 414, 80 N. Y. S. 811 
 ( 1 903 ) ; Ramschasel's Estate, 24 Pa. Super. Ct. 262 (1Q04 ) .
 
 37S TRIAL 
 
 omission of the plaintifT to testify as an expert. All these were merely 
 matters lor the consideration of the jury in determining whether any 
 such promise was made, or sucli understanding existed.''^ [, 
 
 Exceptions overruled. ^ 
 
 r 
 
 BOSTON c^ MAINE RAILROAD v. STATE. 
 Supreme Court of New Hampshire, 1910. 
 
 75 A^. H. 513 
 
 ^Motions by the plaintiffs that two witnesses, duly summoned 
 under a caption for the taking of depositions to be used on the trial 
 of the plaintiff's petition for abatement of taxes, be directed toi 
 answer certain inquiries put to them in the course of their examina- 
 tion and to produce certain documents in obedience to a subpoena 
 duces tecum served upon each. 
 
 The plaintiffs had filed in the Supreme Court a petition for 
 abatement of taxes assessed against them by the state board of 
 equalization for the year 1909, and referees had been appointed to 
 hear the parties and report the facts. It was alleged that the plain- 
 tiff's' road and equipment had been appraised at a sum in excess of 
 its true value, and assessed for purposes of taxation at a greater 
 percentage of its true value than all other taxable property in the 
 state. For the purpose of showing these facts the plaintiffs sub- I 
 poenaed Thomas R. Varick, treasurer and manager of John B. 
 Varick Company, and William B. Burpee, treasurer of the Elliott 
 ]\Ianufacturing Company. The subpoena served upon Varick di- 
 
 *^\Vhile the earlier cases showed a disinclination to compel professional 
 men to testify on professional subjects for the ordinary witness fee, the result 
 of the more' recent decisions is that the expert must obey the subpoena of 
 the court and testify to facts within his knovvledsje. Flinn v. Prairie, 60 Ark. 
 204, 29 S. W. 459, 27 L. R. A. 669, 46 Am. St. 1&8 (1895) ; Dixon v. People, 
 16S 111. 179, 48 N. E. 108, 39 L. R. A. 116 (1897) ; North Chicago St. R. Co. 
 V. Zciger, 182 111. 9, ^.% N. E. 1006, 74 Am. St. 157 (1899) ; Bathgate v. Irvine, 
 126 Cal. 135, 58 Pac."'442, yy Am. St. 158 (1899) ; Maine v. Sherman, 74 Nebr. 
 m5, 103 N. \V. 1038 (1905) ; Commonwealth w. Cochran, 14 P a. Dist. R^ 805 
 (1905) ; Butler V. Toronto MiiToscope Co., ii~T5htario'L. R. 12"^ (1905) ; Chicago 
 & M. E. R. Co. V. Judge, 135 111. App. 277 (1907) ; State v. Bell, 212 Mo. in. 
 Ill S. W. 24 (1908) ; Phillcr v. Waukesha Co., 139 Wis. 1040, 120 N. W. 829, 
 25 L. R. A. (N. S.) 1040 and note (1909). But an expert is not required to 
 testify either to an opinion or to any other fact which must be ascertained by 
 special labor. And if he does perform v/ork in preparation and qualification 
 to enable him to testify at the request of any person an implied contract for 
 reasonable compensation or an express contract will be valid. People v. Mont- 
 gomery, 13 Abb. Pr. (N. S.) (N. Y.) 207 (1871); Tiffany v. Kellog Iron 
 Works, =9 Misc. 113, 109 N. Y. S. 754 (1908) ; Anderson v. Minneapolis, St. 
 Paul & S. M. R. Co., 103 Minn. 184, 114 N. W. 744 (iQoS) ; Scho field v. Little, 
 2 Ga. App. 286. s8 S. E. 666 (1907) ; Hough v. State, 68 Misc. 26, 124 N. Y. S. 
 878 (1910) ; Gordon v. Conley, 107 Maine 286, 78 Atl. 365 (1910) ; Keller v. 
 Harrison, i^i Iowa 320, 128 N. W. 851 (1910). For England see Batley v. 
 Kvnock, L. R. 20 Eq. Cas. 632 (1875) ; Macklev v. Chillingworth, L. R. 2 C. P. 
 Div. 273 (1877) ; Ttirnhull v. Janson, L. R. 3 C. P. Div. 264 (1878).
 
 BOSTON & M. RAILROAD V. STATE 379 
 
 rected him to produce the poHcies of insurance of the Varick Com- 
 pany; that upon Burpee to produce all the books, papers and inven- 
 tories tending to show the stock in trade of the Elliott Manufactur- 
 ing Company. ' 
 
 Varick appeared, testified that he could not give any estimate of 
 the insurance and that he did not bring with him the policies men- 
 tioned in the subpoena, because he considered that they were "our 
 private business," and that it would be "an injury to our private 
 business to produce them." He further testified that the had pur- 
 chased a Cgftain interest in the company, but declined to state tlie 
 price on the ground that the transaction was his private business. 
 
 Burpee stated that he had not brought with him the books and 
 docum.cnts enumerated in the subpoena and should decline to make 
 any disclosure as to the stock account and insurance policies of the 
 Elliott Company until he had consulted the directors and counsel. 
 
 Counsel for plaintiffs moved in the Supreme Court that each 
 witness be ordered to answer the questions propounded to him and 
 to produce the documents described.^- 
 
 Parsons, C. J. : In this controversy between the plaintiffs and 
 the state, in which the witnesses are not immediately interested, the 
 Vv-itnesses complain that they are asked to disclose by oral testimony 
 and the production of written matter in their possession details of 
 their private affairs for the benefit of strangers. The ground of 
 their objection is not very clearly presented, but it seems to be, aside 
 from a natural disinclination to make public disclosure of their busi- 
 ness affairs, that such disclosure may in some way result to their 
 pecuniary disadvantage. "No subject shall * * * be compelled 
 to * * '^ furnish evidence against himself." Bill of Rights, 
 article 15. But this article relates to criminal proceedings only. 
 Wood V. Weld, Smith ( N. H. ) 367, 368. It has not been suggested 
 that response to the inquiries or the requests for the production of 
 papers would tend to incriminate either of the v/itnesses. 
 
 There was at one time in England diversity of opinion whether 
 a witness could be compelled to testify to facts which might expose 
 him to a civil suit or to pecuniary loss, which v/as settled by a statute ; 
 declaring that a witness can not by law refuse to answer a relevant; 
 question upon the ground that the answer may tend to establish he I 
 owes a debt, or is otherwise subject to a civil suit. 46 Geo. Ill, ch. * 
 JT'fMay 5, 1806). This statute has generally been accepted in this 1 
 country as correctly declaring the law. i Gr. Ev., sec. 452 ; 3 "Wig. j 
 Ev., sec. 2223. It was so held in tliis state in 1825 {Copp v. Upham, ' 
 3 N. H. 159, 162), a conclusion that does not appear to have been 
 since questioned. A witness has no greater right to conceal facts by 
 withholding documentary proof of them in his possession than to 
 refuse to answer orally to matters within his knowledge. There is 
 no difference in principle between compelling proof of the truth by 
 either method. Bull v. Loveland, 10 Pick. (Mass.) 9, 14; Burnham 
 
 •'The statement of facts is abridged and part of the opinion of the court 
 omitted.
 
 .^So TRIAL 
 
 V. i}fo7vhray, 14 Gray (Alass.") 226, 240; Amey v. Long, 9 East 373; 
 3 Wig, ICv., sec. 2193."^ In cither case, the evidence when properly 
 called for must be produced, unless its production is excused by 
 some specific privilege. That the disclosure may result in pecuniary 
 loss to tlie witness or is personally distasteful to him is not such a 
 privilege."* 
 
 \\'hile the witnesses are naturally disinclined to disclose the 
 details of their i^rivate business for the benefit of third parties, the 
 duty to do so when required in the administration of justice is one 
 devolving upon them as members of a civili/.ed community. Except 
 for such duty, the promise of protection to each member of the 
 community by the twelfth article of tlie bill of rights, and of a cer- 
 tain remedy for wrong by recourse to the laws, declared to be the 
 right of each subject by the fourteenth article, would be of no yalue. 
 This remedy through judicial procedure is part of the protection 
 guaranteed to each member of the community from the community, 
 by the twelfth article, and to effect which each member is by the 
 same article declared to be bound to contribute his share of the 
 expense and to yield his personal service when necessary. There 
 could be no judicial administration of rights without the personal 
 service of members of the community, and their efforts as such 
 officers would be futile if other members of tlie community possess- 
 ing knowledge of, or other evidence as to, the controversy were not 
 obliged to yield their services when necessary. The service ren- 
 dered by the witnesses in appearance at the caption in obedience to 
 the subpoena was doubtless not agreeable to them and was not per- 
 formed without pecuniary sacrifice. Inconvenience, monetary loss, 
 
 or disinclination they did not regard as an excuse for disobeying the 
 
 \ 
 
 '^Summers V. Moseley, 2 Cr. & M. 477 (1834). 
 
 "In general a wUness is not bound to answer a question which would 
 tend to expose him to a prosecution for crime. Cohurn v. Odell, 30 N. H. 
 540 (1855); Commonvi-ealth v. Trider, 143 Mass. 180, 9 N. E. 510 (1887); 
 People V. Forbes, 143 N. Y. 219 (1894) ; Twining v. State of Nezv Jersey, 211 
 U. S. 78, 29 Sup. Ct. 14, 53 L. ed. 97 (1908) ; and the rule is the same in ac- 
 tions for penalties -which, though civil in form, are criminal in their nature. 
 Lees V. U. S., 150 U. S. 476. 37 L. ed. 1150, 14 Sup. Ct. 163 (1893). But a wit- 
 ness can not refuse to testify because his answer may be against his pecu- 
 niarj^ interest or may expose him to a civil action. Baird v. Cochran. 4 Serp . 
 & R. (Pa.) 307 (1818) ; Taney v. Kemp, 4 H. & J. (Md.) 348, 7 Am. Dec.~^3 
 (1818) ; Planters' Bank v. George, 6 Martin (La.) (O. S.) 670, 12 Am. Dec. 
 487 (1819) ; Copp V. Upham, 3 N. H. 1^9 (1825) ; Bull v. Loveland, 27 Mass. 9 
 (1830) ; In re Kip, i Paige (N. Y.) 601 (1829) ; Ward v. Sharp, 15 Vt. 115 
 (1843) ; Alexander v. Knox, 7 Ala. 503 (1845) ; Ex parte Mumford, 57 Mo. 
 603 (1874) ; Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 81 1 
 (1895); New York Life Ins. Co. v. People, 95 111. App. 136 (1900); Russie 
 Cement Co. v. Woolworth Co., 68 Misc. 454, 125 N. Y. S. 82 (1910). Contra: 
 Starr v. Tracy, 2 Root (Conn.) 528 (1797) ; United States v. Grundy, 3 
 Cranch (U. S.) 337, 2 L. ed. 459, and note (1806) ; Benjamin v. Hathaway, 3 
 Conn. 528 (1821) ; Bank of United States v. Washington, 3 Cranch (C. C.) 
 295 (1828). A witness will not be compelled to furnish evidence irrelevant to 
 the issue, if the disclosure of such irrelevant facts would be injurious to his 
 business. Ex parte Jennings, 60 Ohio St. 319, 54 N. E. 262, 71 Am. St. 720 
 (1899) ; Peterson v. Mineral King Fruit Co., 140 Cal. 624, 74 Pac. 162 (1903) ; 
 In re Park, 138 Fed. 421 (1905). See also Ripley v. Seligman, 88 Mich. 177, 
 50 N. W. 143 (1891) ; In re 0.sborne, 141 Mass. 307, 4 N, E. 618 (1886) ; Al- 
 vord V. Alvord, 109 Iowa 113 (1899).
 
 BOSTON & M. EAILKOAD Z^K STATE 38 1 
 
 subpoena requiring their presence. Neither is a vana excuse for 
 failure to testify or obey the subpoena duces tecum. The service is 
 one which they are constitutionally bound to render and for which 
 they perhaps can obtain full recompense only when they may be 
 compelled to ask like protection from the community. The con- 
 stitution merely recognizes and declares, but docs not create the 
 duty. "Every person in tlie kingdom, except the sovereign, may be 
 called upon and is bound to give evidence to the best of his knowl- 
 edge upon any question of fact material and relevant to an issue tried 
 in any of the qiteen's courts, unless he can show some exception in 
 his favor." Willes, J., in Ex parte Fernandez, lo C. B. (N. S.) 3, 39. 
 "For three hundred years it has been recognized as a fundamental 
 maxim that the public * * * has a right to every man's evidence." 
 3 Wig. Ev., sec. 2192. 
 
 It is further suggested that the inquiries as to the value of stock 
 in trade call for the exposure of trade secrets which are privileged. 
 Upon what ground the average value of the stock in trade of a 
 trading or manufacturing corporation can be called a "trade secret" 
 has not been explained. But whatever view might be taken as be- 
 tween competitors in the same line of business, the amount of the 
 stock in trade of such organizations is not a matter which, as it 
 relates to taxation, they are privileged to keep secret. On the con-* v ^.^ 
 trary, in order to enable the state to execute the sovereign power .''-J 
 of taxation, such corporations are required to make a return to tliej •\^ 
 taxing officers each year of the amount of such stock. P. S., ch. 55, |=)^'* 
 sec. 7, cl. 6 ; lb., ch. 57, sees. 4-8. The matter is public — not secret, i 
 
 In the legal search for truth made for the protection of members 
 of the community, the parties and the state are entitled to all evi- 
 dentiary matter in the knowledge or control of each member of the 
 community which will aid the inquiry. As to some matters greater 
 injustice would be done by compelling the witnesses to disclose than 
 by determining the controversy without their aid. Such matters are 
 exceptions to the general duty to give evidence. 3 Wig. Ev., sees. 
 2192, 2193.^^ As the questions which the witnesses have refused to 
 
 ""What the state of the law actually is would be difficult to decide pre- 
 cisely. It is clear that no absolute privilege for trade secrets is recognized. 
 On the other hand, courts are apt not to require disclosure except in such 
 cases and to such extent as may appear to be indispensable for the ascertain- 
 ment of truth. More than this, in definition, can as j-et hardly be ventured." 
 Wigmore on Evidence, vol. Ill, § 2212. Co mpare Tetlow \^ SmiQiirmti,_JiS 
 Phi1a__(Pa/> T7n <-tSSt^ ; Star K. P. Co. v. Greemvood, 3 Ont. 280 (1883) ; 
 Moxie Nerve Food Co. v. Beach, 35 Fed. 465 (1888) ; Dohson v. Graham, 49 
 Fed. 17 (1889) ; Gorham Mfg. Co. v. Emery Bird Thayer Dry-goods Co., 92 
 Fed. 774 (1899) ; Herreschoff v. Kniefsch, 127 Fed. 492 (1904) ; International 
 Curtis Marine Turbine Co. v. Cramp Ship, &c., Co., 176 Fed. 925 (1910) ; Bur- 
 nett v. Phalon, 11 Abb. Pr. (N. Y.) 157 (i860) ; Saccharine Corp. v. Chem- 
 icals & Drugs Co., L. R. (1900) 2 Ch. Div. 556; In re Park, 138 Fed. 421 
 (1905) ; In re Lathrop-Haskins & Co., 184 Fed. 534 (1910) ; In re Bolster, 
 59 Wash. 655, 110 Pac. 547 (1910). See also State v. Davis, 68 W. Va. 142, 69 
 S. E. 639 (1910) ; Wilson v. U. S., 221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct. 538 
 (191 1 ) ; American Lithographic Co. v. ll'crckmcistcr, 221 U. S. 603, 55 L. ed. 
 873, 31 Sup. Ct. 676 (1911) ; Ex parte Gould, 60 Tex. Cr. 442, 132 S. W. 364, 
 31 L. R. A. (N. S.) 835 and note (1910). In bankruptcy proceedings, In re 
 ^V heeler, 158 Fed. 603 (1907).
 
 o 
 
 §2 TRIAL 
 
 answer arc not privileged, the plaintiffs are as a matter of law 
 entitled to the evidence asked for. But while it is the duty of wit- 
 nesses to furnish all the facts in tlicir possession which are not 
 privileged, the performance of that duty should not be made any 
 more unpleasant or arduous than is necessary. There seems to be 
 considerable doubt whether the question as to the price paid for the 
 interest in the John B. Varick Company wall be material at the trial ; 
 and as tlie witness does not wish to make the same public, should 
 he volunteer to attend the hearing before the referees the question 
 should not be insisted upon in the deposition."^** 
 The motions are granted. 
 
 S^ IN RE THAW. 
 United States District Court, W. Dist. Pa., 1908. 
 
 172 ¥cd. 288" 
 
 Young, J. : This is a writ of habeas corpus ad testifacandum. 
 The respondent moves the court to quash the writ and dismiss the 
 proceeding. 
 
 The writ w^as granted upon the petition of the relator, setting 
 out that the evidence of Henry Kendall Thaw was necessary in 3. 
 certain proceeding in bankruptcy, pending in this district. As is 
 customary in such proceedings, it not appearing from the petition 
 that the writ ought not to issue, the usual order was made, allowing 
 the writ, and the case now comes before us to determine the whole 
 matter. It is not in the nature of an appeal from the order of the 
 court granting the writ, but is the proper and orderly consideration 
 of the whole matter after the service of the writ and the return of 
 the respondent. 
 
 It appears from the record that. Thaw having filed his petition 
 in bankruptcy, it became necessary to subject him to the usual ex-1 
 amination provided by the Act of Congress Act July i, 1898, ch. ' 
 
 "A subpoena duces iecuvi must state with reasonable certainty and pre- 
 cision the particuhir documents desired. An order to produce all papers con- 
 cerning the matter in dispute is not sufficiently specific. A merica n Car 6" 
 Foundry Co. v, Alexandria IV. Co., 221 Pa. 52Q, 70 A tl. 867 (1908) ';' Attorney' 
 General V. lyUson, 9 Sim. 526 (1839) ; Lee v. Angas, L. R. 2 Eq. 59 ( 1866) ; 
 United States v. Babcock, 3 Dillon (U. S.) 566, Fed. Cas. No. 14484 (1876) ; 
 Ex parte Brown, 72 Mo. 83, 27 Am. Rep. 426 (1S80) ; In re Storror, 63 Fed. 564 
 (1S94) ; Carson v. Hozvlcy, 82 Minn. 204, 84 N. W. 746 (1901) ; Dancel v. 
 Goodyear Shoe Machinery Co., 128 Fed. 753 (1904) ; Miller v. Mutual Reserve 
 Fund Life Assn., 139 Fed. 864 (1905) ; Hale v. Henhel, 201 U. S. 43, 26 Sup. 
 Ct. 370, 50 L. ed. 652 (1906) ; United States v. Terminal R. Assn., 154 Fed. 
 268 (1907) ; Ex parte Gould, 60 Tex. Cr. 442, 132 S. W. 364 (1910). A sub- 
 poena duces tecum can only be used to compel the production of documentary 
 evidence. In re Shephard, 3 Fed. 12 (1880) ; Johnson Steel St. R. Co. v. 
 North Branch Steel Co., 48 Fed. 191 (1891). 
 
 ''A petition for revision of the order of the district court in this case wa^ 
 dismissed by the circuit court of appeals, 166 Fed. 71.
 
 IN RE THAW 383 
 
 541, 30 Stat. 544, U. S. Comp. Stat. 1901, p. 3418. The referee, 
 having made an order for his examination, it was found that he was 
 beyond the jurisdiction of the court, and in the custody of Dr. Lamb, 
 superintendent of tlie Matteawan State Hospital for the Criminal 
 Insane in the state of New York, where he had been committed by 
 the Supreme Court of the state of New York as an insane criminal. 
 This writ was then allowed, directed to Dr. Lamb, to produce the 
 body of the prisoner to testify in the bankruptcy matter now pend- 
 ing in this court. 
 
 Section 753 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 
 952)®* provides that: 
 
 "The writ of habeas corpus shall in no case extend to a prisoner 
 in jail, unless," among other tilings, "it is necessary to bring the 
 prisoner into court to testify." 
 
 We have, then, in this section the authority to grant the writ 
 to bring a prisoner from his place of confinement to testify ; but the 
 power should only be exercised when there is necessity of having the 
 evidence of the prisoner. Unless the necessity is so great that the 
 ends of justice may be defeated if the evidence were not produced, 
 the court of the jurisdiction where the evidence is needed will be 
 slow to grant a writ which will remove a person confined by the 
 court of another jurisdiction from his place of confinement. The 
 comity that exists between courts, the reluctance of federal courts 
 to interfere with the jurisdiction of state courts, will and ought to 
 restrain us from interfering with the orderly and effective adminis- 
 tration and execution of the law in sister courts. 
 
 After a carefvil examination of this record in the light of the 
 law and practice, as we understand it and have indicated, we have 
 concluded that no necessity has arisen for the bringing of the pris- 
 oner away from his proper place of confinement into the district. 
 If-his evidence is necessary, his deposition can be taken. Section 21, 
 els. "a" and "b," of the bankrupt act (act July i, 1898, ch. 541, 
 30 Stat. 552; U. S. Comp. Stat. 1901, p. 3430), provide all the 
 means for a thorough examination of the bankrupt. 
 
 The writ must therefore be quashed, and the petition dismissed, 
 with costs.^^ 
 
 **See also N. Y. Code Civ. Proc, § 2008 et seq. ; California Code Civ. 
 Proc, §§ 1995-7. In England under the Prison Act of 1898 (61 and 62 Vict. 
 Ch. 41) § II, a Secretary of State on proof that the presence of any prisoner 
 at any place is required, in the interest of justice, may, by writing under his 
 hand, order that the prisoner be taken to that place. See also, rules of Su- 
 preme Court, order XXXVI, rule 35; Jenks v. Ditton, 76 L. T. 591 (1897). 
 In Weldon v. Neal, L. R. 15 Q. B. D. 471 (1885), the court refused a habeas 
 corpus to a party to a suit, in custody, to enable her to appear in court to 
 argue in person a rule for a new trial. 
 
 ''"'Adams v. , 3 Keb. 51 (1672) ; Gccry v. Hopkins, 2 Ld. Raym. 851 
 
 (1702); Re.r v. Burhage, 3 Burr. 1440 (1763) ; Rex v. Rodda.n, Cowp. 672 
 {1777) ; In re Price, 4 East 587 (1804) ; Nohle v. Smith, 5 Johns. (N. Y.) 
 357 (1810) ; Attornev General v. Faddcn, i Price 403 (1815) ; People v. Stone, 
 10 Paige (N. Y.) 606 (1844); Marsden v. Overbury, 18 C. B. 34 (1856); 
 State v. Kennedy, 20 Iowa 372 (1866) ; State v. Adair, 68 N. Car. 68 (1873) ; 
 Ex parte Harris, 73 N. Car. 65 (1875); Maxwell v. Rives, 11 Nev. 213 
 (1876) ; Roberts v. State, 72 Ga. 673 (1S84) ; United States v. Bare field, 23
 
 3S4 TRIAL 
 
 SECTION 4. RIGHT TO OPEN AND CLOSE. 
 
 WESTERN AND ATLANTIC RAILROAD COMPANY 
 ^ z: BROWN. 
 
 Supreme Court of Georgia, 1897. 
 102 Ga. 13. 
 
 Action for dama£::es before Judge Milner, Whitefield Superior 
 Court, October term, 1896. 
 
 Brown sued the railroad company for $500, by reason of the 
 neghgent kilHng of a jennet. The defendant admitted the kiUing, but 
 denied that tlie jennet was worth $500 or any other large sum, and 
 denied that the killing was due to any fault or negligence on the part 
 of the defendant or its servants. There was a verdict for the plain- 
 tiff for $108,162/3 and costs of suit A motion for a new trial was 
 overruled, and defendant excepted. The motion alleges, in addition 
 to the general grounds, that tlie court erred: In ruling that the 
 plaintiff was entitled to the opening and conclusion, the defendants* , 
 attorneys stating to the court before the argument began that de-jl 
 fendant admitted the killing, and the law then implied negligence, 
 which made a prima facie case for recovery.^'* 
 
 Little, J. : Before the argument of the case began,^^ counsel for 
 defendant admitted the killing of the animal to recover for which 
 
 Fed. 136 (1885) ; Ex parte Marmaduke, 91 Mo. 228, 4 S. W. 91, 60 Am. Rep. 
 250 (1886) ; People v. U'illard, 92 Cal. 482, 28 Pac. 585 (1891) ; Roberts v. 
 State, 94 Ga. 66, 21 S. E. 132 (1894) ; People v. Sebring, 14 Misc. 31, 35 N. Y. 
 S. 237 (1895) ; Hancock v. Parker, 100 Ky. 143, 37 S. W. 594 (1896) ; Hayden 
 V. Comm., 140 Ky. 634, I3i S. W. 521 (1910). 
 
 In Koeckcr x. JCo ecker. 7 Phjla^ (P a.) 364 ( 1820) it is said by Paxson, J., 
 "The writ of habTas^cor pus ad testificandum is' a common law writ, and may 
 always be issued by a common law court in a proper case. It may issue to 
 bring up a witness who is in prison charged with crime, or under sentence 
 therefor, or who is under execution for debt, or where he is under duress, as 
 a seaman on board of a man-of-war. The proper practice is to apply for a 
 rule to show cause based upon an affidavit setting forth _ substantially : 
 1st, That the witness is a prisoner, or under duress. 2d,That his testimony is 
 material, and if he has to be brought a great distance, the materiality of his 
 testimony should appear from the affidavit; and 3d, If the witness is not in 
 prison, that he or she is willing to attend, and it has been held that in such 
 case the witness should have been served with a subpoena." 
 
 "Part of the opinion of the court is omitted. 
 
 "The weight of authority is in favor of the view that the burden of 
 proof and consequent right to open and close must be determined at the 
 commencement of the trial and from an inspection of the pleadings only. 
 Lake Ontario Nat. Bank v. Judson, 122 N. Y. 278, 25 N. E. 367 (1890) ; Pontt- 
 fex v. Jolly, 9 Car. & P. 202 (1839) ; Central of Georgia R. Co. v. Morgan, no 
 Ga. 168 (1899) ; Hollander v. Farber, 52 Misc. 507, 102 N. Y. S. 506 (1907) ; 
 Jn rh.nn V Winrhrster, 4 Pall. (Pa.) 20.^ (i8oo'^ ; Miller Brew. Co. v. De 
 France, 90 Iowa 395, 57 N. W. 959 (1894). In Illinois the trial court may in 
 its discretion permit the defendant, on going to trial, to withdraw the general 
 issue and rely on special pleas, and in such case defendant, having the affirma- 
 tive, has the right to open and close. Gardner v. Meeker, 169 111. 40, 48 N. E. 
 307 (1897).
 
 PYLES V. PIEDMONT MT. AIRY GUANO CO. 385 
 
 the suit was brought, and asked for the opening and conclusion, 
 which was denied. We think the denial was right. The effect of the 
 admission did not go far enough to shift the burden. To entitle the 
 plaintiff' to recover he must have shown two things: the killing; the 
 value. The killing being shown, the law would presume negligence ; 
 but it would not have presumed a value as we understand it. The 
 burden is not shifted until the admissions show a prima facie right 
 to recover, to rebut which the defendant undertakes. So long as any 
 portion of the burden of making out his case by proof rests on the 
 plaintiff, he is entitled to open and conclude, imless the defendant 
 introduces no evidence.^^ The admissions here went only half-way 
 the road the plaintiff had to travel before he could reach a stopping 
 place ; the other half proved to be a stony path for him, but he 
 finally passed over it and established that he had done so to the satis- 
 faction of the jury ; and there being evidence to sustain their verdict, 
 we will not interfere. 
 Judgment affirmed."^ 
 
 /° 
 
 PYLES V. PIEDMONT MT. AIRY GUANO COMPANY. 
 
 Supreme Court of Florida, 1909. 
 
 58 Fla. 348 
 
 Error to Circuit Court, Marion county. Action by the Piedmont 
 Mt. Airy Guano Company against Samuel R. Pyles. Judgment for 
 plaintiff, and defendant brings error. 
 
 Whitfield, C. J. : The Piedmont Mt. Airy Guano Company, a 
 corporation, brought an action against Samuel R. Pyles in the Circuit 
 Court for Marion county upon an indorsement of a note for 
 $1,142.30, dated July i, 1904, given by George Close to the plaintiff 
 below. 
 
 ''Harvey V. Mitchell, 2 Moo. & R. 366 (1841) ; Commontvealth v. Hoe, 26 
 Leg. Int. 124 ( 1869) ; East Tenn., Va. & G. R. Co. v. Fleetwood, 90 Ga. 23, 
 15 S. E. 778 (1892). 
 
 ''^Brunswick & IV. R. Co. v. Wiggins, 113 Ga. 842, 39 S. E. 551, 61 L. R. A. 
 513 and note (1901). See also Best on Right to Begin, § 40 et seq. Where 
 the case stated in the complaint upon a money demand in contract is admitted, 
 and nothing is left for a complete determination in the plaintiff's favor, but a 
 mere computation of interest on the demand for the period claimed, the de- 
 fendant, upon an affirmative defense set up in his answer has the right to 
 open and close. Brennan v. Security Life Ins., &c., Co., 4 Daly (N. Y.) 296 
 (1872). So where the amount of plaintiff's claim is admitted and defendant re- 
 lies on a counterclaim. Pozver v. Turner, 27 Mont. 52, 97 Pac. 950 (1908). 
 Where, however, the plaintiff seeks to recover actual damages of an unascer- 
 tained amount, he is entitled to begin, although the affirmative of the issue may, 
 in point of form, be with the defendant. Carter v. Jones, i Moo. & R. 281 
 (1833) ; Mercer v. IVhall, 5 Ad. & El. (N. S.) 447 (1845) ; Sawyer v. Hop- 
 kins, 22 Maine 268 (1843); Huntington v. Conkey, 2S Barb. (N. Y.) 218 
 (i860) ; Baltimore & O. R. Co. v. MclVhinney, 36 Ind. 436 (1871) ; Cunning- 
 ham v. Gallagher, 61 Wis. 170, 20 N. W. 925 (1884) ; Elder v. Oliver, 30 Mo. 
 ■App..p75 (18^) ; Railway Co. v. Taylor, $7 Ark. 136 (1893) ; Parrish v. Sun 
 Printing & P. Assn., 6 App. Div. 585, 39 N. Y. S. 540 (1896) ; Chicago & A. 
 R. Co. V. Hill, 130 111. App. 218 (1906) ; Baltimore City v. Hurlock, 113 Md. 674, 
 78 Atl. 558 (1910) ; Mann v. Dempster, 181 Fed. 76 (1910). 
 
 2£ — Civ. Proc.
 
 3^6 TRIAL 
 
 Amonj:f tlic (lcfcn?cs interposed was that the notes sued on 
 became mixed and minjjjled with other notes made to the defendant 
 and the indorsement "was a result purely of accident, mistake and 
 inadvertence" and the defendant "did not then have any intention 
 whatever of signing the said note." "^ 
 
 Error is assigned on the rulings of tiie court that the plaintiffj 
 have the opening and conclusion of the argument. ^ 
 
 In the ahsence of a statute or rule upon the suhject, where the 
 plaintiff has anything to prove in order to get a verdict, whether in 
 an action ex contractu or ex delicto, and whether to establish his 
 right of action or to fix the amount of his damages, the right to 
 begin and conclude the argument to the jury belongs to the plaintiff. 
 The unvarying test to be applied is which party would, upon the 
 pleadings and record admissions and without any proof, be entitled 
 to a verdict. If the plaintiff would succeed on the pleadings alone, 
 the defendant may begin and conclude the argument; if the defend-- 
 ant would succeed, then there is something for the plaintiff to prove 
 at the outset, and the plaintiff may begin and conclude the argument 
 to the jury. Where there arc several issues, and the plaintiff has 
 anytliing to prove under any one of them in the first instance, in' 
 order to recover, the right to open and close the argument is with 
 him. In every case where the general issue or a general or special 
 denial is pleaded, the right to open and close is with the plaintiff, for 
 then he has something to prove in the first instance, no matter what 
 may be the nature of the controversy, or what special defenses may 
 be set up.'^^ 
 
 In this case the action is on a promissory note; but there is a 
 common count and a plea of the general issue, which requires the 
 plaintiff" to prove something at least before he can recover. There- 
 fore the court properly ruled that the right to open and conclude 
 the argument to the jury was with the plaintiff. 
 
 Judgment affirmed.''*^ 
 
 "Part of the opinion of the court is omitted. 
 
 "i Thompson on Trials, § 228; Abbot's Trial Brief, 395; Brunswick & 
 W. R. Co. V. Wiggins, 113 Ga. 842, 39 S. E. 551, 6x L. R. A. 513 (1901). 
 
 •'Accord: Bates v. Forcht, 89 Mo. 121, i S. W. 120 (1886); Harvey v. 
 Broiiilette, 61 Vt. 525, 17 Atl. 722 ( 1889) ; Staner v. Joyce, 120 Ind. 99, 22 N. E. 
 89 (i88g). Compare Barker v. Malcolm, 7 Car. & P. loi (1835) ; Conselyea 
 V. Su-ift, 103 N. Y. 604 (1886) ; Montgomery v. Hunt, 93 Ga. 438, 21 S. E. 
 
 59 (1893). 
 
 The general rule is that he who has the affirmative of the issue shall 
 begin and close. Heidon v. Ibgrave, 3 Leon. 162, Gouldsb. 23 (1586) ; Leech 
 V. Armitaae^j2 j)^\\. (Pa.) \2 ^ (1791) ; Mercer v. Whall, 5 Ad. & El. (N. S.) 
 447 (1845) {Booth V. Millns, 15 M. & W. 669 (1846) ; Shadbolt v. Findeisen, 
 88 111. App. 432 (1900) ; Zweibel v. Myers, 69 Nebr. 294, 95 N. W. 597 (1903) ; 
 Harrison V. Russell, 17 Idaho 196, 105 Pac. 48 (1909)- Where the defendant 
 pleads the general issue or a general denial, the right to open and close is 
 with the plaintiff. Ayer V. Austin, 22, Mass. 225 ( 1828) ; Kearney v. Cough, 
 5 Gill & T. (Md.) 457 (1833); Toppan v. Jenness, 21 N. H. 232 (1850); 
 Price V. Seward, Car. & M. 22, (1841) ; Cox v. Vickers, 35 Ind. 27 (1870) ; 
 Hudson V. IVetherington, 79 N. Car. 3 (1878); Farrington v. Jennison, 67 
 Vt. 569, 32 Atl. 641 (1895) ; Yjm S larch V Van S'^nrrfi,-4^6-£a-54S. 46 Atl. 
 1062 (1900) ; Semler Milling Co. v. Fyffe, 127 111. App. 514 (1906) ; Convert 
 V. Bishop B. Co., 152 111. App. 516 (1910) ; Piercy v. Frankfort Marine Acci-
 
 DENNY V. BOOKER 387 
 
 DENNY V. BOOKER. 
 
 Court of Appeals of Kentucky, i8ii. 
 2 Bibh (Ky.) 427. 
 
 This was an action of detinue, brought by John P. Booker, in the 
 Jefferson Circuit Court, against Ann Denny for a negro girl slave, 
 named Rachel. Plea that the slave was in the possession of, and 
 belonged to Edward Denny, at the time of his death, and that she 
 had taken out letters of administration of the estate, and held the 
 negro by virtue thereof ; issue and verdict and judgment for the 
 plaintiff in the court below, from which Denny has appealed to this 
 court. "^ 
 
 Clark, J. : The second assignment of error is, the court erred 
 in refusing to permit the counsel for the plaintiff in error to open 
 and conclude the argument. It is a rule of practice that the person' 
 holding the affirmative of a proposition has the right to open and, 
 conclude the argument, and if tliis right is withheld, it is said in the^ 
 case of Cliurchill v. Rogers ^® to be error. 
 
 dent Co., 142 App. Div. 839, 127 N. Y. S. 354 (iQn)- The plaintiff begins 
 and has the right to reply where the defendant's pleadings, or any part of 
 them, deny the whole, or any part, of the plaintiff's pleadings, so as to leave 
 any affirmative allegation on his side to be established by proof. Inglis v^ 
 Lnglts 2 Pall. (Pa.) 4=;. i L. ed. 282 (1790) ; Hodges v. Holder, 3 Camp. 366 
 (1813) ; Davidson v. Henop, i Cr. (C. C.) 2S0 (1804) ; Beall v. Newton, i 
 Cr. (C. C.) 404 (1807) ; Jackson v. Hesketh, 2 Stark. 454 (1819) ; Bedell v. 
 Russell, I Ry. & Moo. 293 (1825) ; Cotton v. James, 3 Car. & P. 505 (1829) ; 
 Kimble v. Adair, 2 Blackf. (Ind.) 320 (1830) ; Jackson v. Pittsford, 8 Blackf. 
 (Ind.) 194 (1846) ; Lexington Fire, Life, &c. Ins. Co. v. Paver, 16 Ohio 324 
 (1847) ; Belknap v. Wendell, 21 N. H. 175 (1850) ; Bnzzell v. Snell, 25 N. H. 
 474 (1852) ; Huffman v. Alderson, 9 W. Va. 616 (1876) ; Johnson v. Maxwell, 
 87 N. Car. 18 (1S82) ; Cilley v. Preferred Ace. Ins. Co., 109 App. Div. 394, 
 96 N. Y. S. 282 (1905) ; Leesville Mfg. Co. v. Morgan Wood & Iron Co., 75 
 S. Car. 342, 55 S. E. 768 (1906) ; Mitchem v. Allen, 128 Ga. 407, 57 S. E. 721 
 (1907) ; Wright v. Collins, in Va. 806, 69 S. E. 042 (1911) ; Coffman v. Spo- 
 kane Chronicle Pub. Co., 65 Wash, i, 117 Pac. 596 (1911) ; where, however, 
 the burden of proof is upon the defendant to establish the only issue in the 
 cause, he should be given the right to open and close the argument. Gibson v. 
 Reiselt, 123 111. App. 52 (1905) ; Heilbronn v. Hcrsog, 165 N. Y. 98 (1900); 
 Viehman v. Boelter, 105 Minn. 60, 116 N. W. 1023 (1908) ; Darrell v. Sparks, 
 142 Mo. App. 460, 127 S. W. 103 (1910). Contra: Dorr v. Tremont Nat. Bank, 
 128 Mass. 349 (1880). 
 
 ''Part of the opinion of the court is omitted. 
 
 "Hardin (Ky.) 182 (1808). Accord: Dazns v. Mason, 21 Mass. 156 
 (1826) ; Jtidge of Probate v. Stone, 44. N. H. 593 (1863) ; Colwell v. Brower, 
 75 111. 516 (1874) ; Porter v. Still, 63 Miss. 357 (1885) ; Lake Ontario Nat. 
 Bank v. Jndson, 122 N. Y. 278, 25 N. E. 367 (1890) ; Smith v. Trader's Nat. 
 
 'Bank, 74 Tex. 541, 12 S. W. 221 (1889) ; Merzbach v. Ne-iv York, 163 N. Y. 
 16, 57 N. E. 96 (1900) ; Nagle v. Schnadt, 239 111. 595, 88 N. E. 178 (1909). 
 Elsewhere it has been held a matter in the discretion of the trial court to 
 be interfered with only in cases of injustice or abuse of discretion. Robeson 
 v. Whit(>sidps, t6 Sprgr ^ R (Pa.-) -^20 (1827) ; Brans ford v. Freeman, i 
 Eng. L. & Eq. 444 (1850) ; Geach v. Ingall, 14 M. & W. 95 (1845) ; Smith v. 
 Coopers., 9 Iowa 376 (1859) ; Lucas v. Sullivan, 33 Mo. 389 (1863) ; Smith v. 
 
 , jrasier ^s?, Pa. St. 226 .'•i866'L : Lancaster v. Collins, 115 U. S. 222, 29~Cred. 
 
 ' 373. 6 Sup. Ct. 33 (1885) ; Aultman v. Falkuni, 47 Minn. 414, 50 N. W. 471 
 (1891) ; Oexner v. Loehr, 133 Mo. App. 211, 113 S. W. 727 (1908).
 
 3v*^S TRIAL 
 
 But it i.^ not conceived that a parly by pleadincf affirmatively 
 what only amounts to the negative of the issue can ac(iuirc this right. 
 The plea filed by the plaintiit in error is in reality nolhing more than 
 the general issue of iion dctlnct, and would on that account have 
 been bad on demurrer.'" It did not release the plaintiff below from 
 proving title to the slave, nor was the burden on the defendant 
 tliercby increased. 
 
 Judgment affirmed.^'' L 
 
 SECTION 5. DEMURRER TO EVIDENCE. 
 
 COPELAND V. NEW ENGLAND INSURANCE CO. 
 
 Supreme Judicial Court of Massachusetts, 1839. 
 
 39 Mass. 135. 
 
 Morton, J., delivered the opinion of the court.^^ This is assump- 
 sit on a policy of insurance on the brig Adams. It is alleged 
 that the brig was totally lost upon a coral reef near the Isle of 
 Pines on the coast of Cuba. The admissions of the parties re- 
 duced the case to the simple question whether the loss was 
 caused by any of the perils insured against. To prove the affirma- 
 tive the plaintiffs introduced the testimony of four witnesses, 
 and here submitted their case. The defendants believing this 
 evidence to be insufficient to support the action demurred to it. 
 The plaintiff joined in the demurrer ; and the case has been 
 argued upon the evidence thus brought before us. 
 
 This mode of trial is very unusual in this state. No case of the 
 kind has happened since the commencement of our reports; and 
 
 "Richards v. Frankum, 6 M. & W. no (1840). 
 
 "Averments affirmative in form but negative in substance do not shift 
 the burden of proof or give to the party making them the right to open 
 and close. Smith v. Davics, 7 Car. & P. 307 (1836) ; Crowley v. Page, 7 Car. 
 & P. 789 (1837) ; Chambers v. Hunt, 18 N. J. L. 339 (1841) ; Haines v. Kent, 
 II Ind. 126 (1858); Beatty v. Hatcher, 13 Ohio St. 115 (1861) ; Shiilse v. 
 MclVilliams, 104 Ind. 512, 3 N. E. 243 (1885); Georgia R. R. v. Williams, 
 74 Ga. 723 (1885) ; Florence Oil &c. Co. v. Farrar, 109 Fed. 254 (1901) ; 
 Barker Cedar Co. v. Roberts, 23 Ky. L. 1345 (1901) ; Doerhoefer v. Sliezv- 
 maker, 29 Ky. L. 1193, 97 S. \\^ 7 (1907). To entitle a defendant to open 
 and close because of admissions in his pleadings, such admissions must cover 
 the plaintiff's entire cause of action, so as to dispense with the necessity of 
 anj' proof on plaintiff's part to make out a prima facie case. Cammack v. 
 Nezi'man, 86 Ark. 249, 1 10 S. W. 802 (1908); Hyatt v. Clements, 65 Ind. 12 
 (1878) ; Benedict v. Penfield, 42 Hun (N. Y.) 176, 4 N. Y. St. 685 (18S6) ; 
 Abel V. Jarratt, 100 Ga. 732, 28 S. E. 453 (1897) ; Sorensen v. Sorcnscn, 68 
 Xebr. 483, 94 N. W. 540 (1903) ; Louisville H. & St. L. R. Co. v. Schwab, 127 
 Ky. 82, 105 S. W. no (1907). Where, however, the defendant has the affirma- 
 tive of the issue, the fact that the complaint alleges facts not essential for 
 the plaintiff to aver or prove which are denied by the answer, will not deprive 
 defendant of his right to open and close. Murray v. New York Life Ins. Co., 
 85 N. Y. 236 (1881) ; Hurliman v. Scckendorf, 9 Misc. 264, 29 N. Y. S. 740 
 (1894); Lewis v. Donahue, 27 Misc. 514, 58 N. Y. S. 319 (1899). 
 
 "The statement of facts and part of the opinion of the court are omitted.
 
 ^ 
 
 L 
 
 I 
 
 v? 
 
 •V .1 
 
 \ 
 
 1 f^ )^ 1^ >! 
 
 41 
 
 1^1 ^ 
 
 NL J ll V*^ \? xP 
 

 
 COPELAND V. NEW ENGLAND INS. CO. 389 
 
 it is believed that very few instances occurred before that time.^^ 
 But however unusual the resort to this mode of trial may be, it 
 can not be questioned that the legal right to demur to evidence 
 exists under proper regulations and restrictions. However, as 
 its purpose seems to be, to withdraw facts from the tribunal spe- 
 cially provided for their determination, it is no favorite of our 
 system. And when the hazard and disadvantage which it im- 
 poses upon the party demurring, are duly considered,^^ and the 
 few cases to which it may properly apply are recollected, there 
 will be no danger of its coming into common practice. 
 
 There are undoubtedly cases, though they are rare, in which a 
 demurrer to evidence may be safely and properly taken. Where 
 all the evidence in a case consists of written instruments, and 
 these are introduced by the party having the affirmative, his 
 opponent may safely demur to the evidence and be sure thereby 
 to bring the merits of his case before the court. As it would be 
 the province of the court to determine the construction and legal 
 operation of the instruments, they would have, by the conces- 
 sion of the parties, all the materials necessary to enable them to 
 determine the legal rights of the parties in the action. The facts 
 being thus before them, they in applying the law to them are in 
 the exercise of their appropriate duty. 
 
 _ But a demurrer is not confined to written evidence. Where 
 witnesses positively testify to certain definite facts, and there is 
 no discrepancy between them, and no other evidence to be 
 offered, a demurrer will properly bring these facts before the 
 court, and enable them to judge whether they will sustain the 
 action or defense which they are introduced to support. 
 
 But it not infrequently happens, that the plaintifit or party 
 having the affirmative, attempts to support the issue on his part 
 by indirect and circumstantial evidence. And when the posi- 
 tions are to be established by inferences from many other facts, 
 it is difficult, if not impracticable, to admit a demurrer. 
 
 _ It may be well here to consider the effect of a demurrer to 
 evidence. And we shall do it with the more care, because we 
 apprehend that it was not duly considered or perfectly under- 
 stood by the counsel on either side. It seems to have been sup- 
 posed to be an admission of the truth of the evidence ; and the 
 
 Golden v. Knowles, 120 Mass. 336 (1876) ; Rockwell v. Congress Hotel 
 Co., 237 111. 98, 86 N. E. 740 (1908). In a number of states the practice of 
 demurring to the evidence has fallen into disuse, having been superseded by 
 a motion for a nonsuit or by a motion to direct a verdict for the defendant. 
 See cases collected in Hopkins v. Railroad, 96 Tenn. 409, 34 S. W 1029 32 
 L. R. A. 354 (1895), and Bass v. Rublcc, 76 Vt. 39s, 57 Atl. 96^ (1904) ; Den- 
 man v. Johnston, 85 Mich. 387, 48 N. W. 565 (1891) ; Colegrove \ N Y & 
 H R. Co., 20 N. Y. 492, 75 Am. Dec. 418 (1859) ; Bnch V. Conrade^iSA Pa. 
 326, 26 Atl. 368 (1893) ; Bank v. Carr, i; Pa. Super. Ct. ^ 46 (1900) : 13 P & 
 
 J-.- ^ . nf P a>_E£C 23 1 ^ 4 ^ ^ • 
 
 , *"'He that demurs to parol evidence, engages in an uphill business. For 
 
 \every fact is taken pro confesso, which the jury might, with the least degree 
 bf propriety, have inferred from his evidence." Per Tilghman C t'' in 
 Dickey V. Schr eider, 3 Serg. & R. ( Pa.) 413 (1817). '
 
 '30O r\iXAL 
 
 court linve been cnlleil upon, supposing^ it all to be true, to de- 
 termine what infoiences may be drawn from it, and whether it 
 would be comiictent for the jury uj)on it to find a verdict for the 
 plaintiffs. And it has been argued that if we would set aside a ver- 
 dict found for the plaintiffs on this evidence, we must render judg- 
 ment for the defendants, on the demurrer. 
 
 But we think this is a mistaken view of the subject and fails to 
 give to the demurrer its legal effect. It leaves it to the court to draw 
 inferences from the circumstances proved and to judge of the weight 
 of the evidence, which would be trenching upon the province of the 
 jury. The eft'ect of a denuu-rer to evidence is not only to admit tlie 
 truth of tlie evidence, but tlie existence of all the facts which are 
 stated in tliat evidence, or which it conduces to prove. Hence that 
 'most acute and learned pleader, Mr. Justice Gould, says that this 
 demurrer, "tliough called a demurrer to evidence, is essentially a 
 demurrer to the facts shown in evidence." Gould on Pleading, 47, 
 4S, 49. As a demurrer to a declaration asks the opinion of the court 
 upon the facts properly pleaded, so a demurrer to evidence asks 
 their opinion upon the facts shown in evidence. In both cases the 
 decision is purely a matter of law, and can not involve any questions 
 of fact on the evidence. 
 
 The true question always raised by this kind of demurrer is not 
 what is competent for the jury to find, but what the evidence tends 
 to prove. This view is fully sustained by a most clear and elaborate 
 opinion given by the learned Lord Chief Justice Eyre, in pronounc- 
 ing the judgment of the House of Lords in the case of Gibson v. 
 Hunter, 2 H. Blackstone 187. This case contains a most lucid and 
 able discussion of the whole subject. He says the precise operation 
 of a demurrer to evidence is to take from the jury and refer to the 
 judges the application of the law to the fact. In the nature of things 
 the facts are first to be ascertained. Where the evidence is written, 
 or if in parol, is positive, definite and certain, the party offering the 
 evidence is bound to join in demurrer. But the reason of the rule 
 "does not apply to parol evidence which is loose and indeterminate, 
 which may be urged with m.ore or less effect to a jury ; and least of 
 all will it apply to evidence of circumstances, which evidence is 
 meant to operate beyond the proof of the existence of those circum- 
 stances, and to conduce to the proof of the existence of other facts. 
 And yet if there be no demurrer in such cases, there will be no con- 
 sistency in the doctrine of demurrers to evidence, by which the appli- 
 cation of the law to the fact on an issue is meant to be withdrawn 
 from a jury and transferred to the judges. If the party who demurs 
 will admit the evidence of the fact, the evidence of which fact is 
 loose and indeterminate, or in the case of circumstantial evidence, 
 if he will admit the existence of the fact, which the circumstances 
 oft'ered in evidence conduce to prove, tliere will then be no more 
 variance, in this parol evidence, than in a matter in writing, and the 
 reason for compelling the party who offers the evidence to join in 
 demurrer, will tlien apply, and the doctrine of demurrers to evidence
 
 COPELAND V. NEW ENGLAND INS. CO. 39I 
 
 will be uniform and consistent." See also M'xddleton v. Baker, Cro. 
 Eliz. 752.^* 
 
 This doctrine seems to be founded upon and well supported by 
 the case of Wright v. Pindar, reported in Style 34, and also in Aleyn 
 18. In Style, Chief Justice Rolle says "that matter of fact ought to 
 be agreed in a demurrer to evidence, otherwise the court can not 
 proceed upon the demurrer; for the judges can not try the matter 
 of fact, for that were for the judges to give the verdict, which 
 belongs to the jury to do." And in Aleyn 18, the decision is thus \ 
 stated : "And it was resolved, that he that demurs upon the evidence / 
 ought to confess the whole matter of fact to be true, and not refer/' 
 that to the judgment of the court. And if the matter of fact be V 
 uncertainly alleged, or that it be doubtful whether it be true or not, 
 because offered to be proved only by presumptions and probabilities, 
 and the other party will demur thereupon, he that alleges the matter 
 can not join in the demurrer with him ; but ought to pray the judg- 
 ment of tlie court, that he may not be admitted to his demurrer 
 unless he will confess the matter of facts to be true. And for that 
 the defendant did not so in this case, both parties having misbehaved 
 themselves, the court can not proceed to judgment." * * * 
 
 Now, in the case at bar, the defendants demur generally to evi- 
 dence, which is circumstantial, loose and indeterminate. And so far 
 from recfting the facts and conclusions which the evidence tends to 
 prove, and which they intend to admit, they refer generally to all 
 evidence as it exists in the form of depositions, consisting of great 
 variety of interrogatories and cross-interrogatories, and the answers 
 to them, which are neither direct and positive nor consistent. This 
 we think to be clearly irregular. To quote the language of Judge 
 Story, "the defendants have demurred, not to facts, but to evidence 
 of facts, not to admissions, but to mere circumstances of presump- \ 
 tion." 85 I 
 
 The evidence offered in this case tends to show, and undoubtedly 
 does show, that the brig insured, in a squall (not a severe one, to be 
 sure) ran upon a coral reef and was totally lost. This proof, by 
 itself, clearly would support the plaintiff's action. But the defend- 
 ants contend that the testimony of the same witnesses tends to show 
 that tlie vessel was run on shore intentionally or through the gross 
 incapacity of the master. Now these are distinct substantive facts, 
 which the defendants wish to establish, It is true the evidence tends 
 strongly, very strongly, to prove them. But the defendants can not 
 avail themselves of these grounds of defense on a demurrer to the 
 evidence. If the plaintiff's evidence does not show a prima facie 
 case, the defendants may demur. But if they wish to set up any facts 
 in defense, they must resort to tlie jury to have them established. 
 
 ^s. c. Baker's Case, 5 Co. Rep. 104 (1600), and see Newis v. Lark, 
 Plowd. 403, 41 1 ( 1871) ; Fits Harris v. Boiun, 1 Lev. 87 (1663) ; Hurst v. Dippo, 
 I Dall. (U. S.) 20, I L. ed. 19 (i774) ; Miller v. Ware, i C. & P. 237 (1824), 
 note; Nelson v. Whitfield, 82 N. Car. 46 (1880). 
 
 ^Young v. Black, 7 Cranch (U. S.) 565, 3 L. ed. 440 (1813).
 
 392 TRIAL 
 
 The depositions introduced by the plaintiffs were taken by the de- 
 fendants, and thus tlie facts may be presented in an order and a 
 form most favorable to the latter. The defendants, too, by demur- 
 rin:^. admit the facts which the evidence conduces to prove for the 
 plaintitTs. and can not avail themselves of such as it tends to show 
 for the defendants. The plaintiffs, by joining in the demurrer, did 
 not admit the truth of that part of tlie testimony which is favorable 
 to the defendants, much less any inferences which may be drawn 
 from it. If the defendants wish to set up any facts to exonerate or 
 discharge them, they must look to the jury to establish them. The 
 court can not examine, compare and weigh the different parts of the 
 evidence. It would be performing a duty which the law has not im- 
 posed upon them, and which they uniformly refuse to accept from 
 the agreement of the parties themselves. 
 
 Without going into further examination of tlie evidence, we are 
 fully convinced that the demurrer was not properly tendered, that 
 the evidence did not present a proper case for a demurrer, that the 
 plaintiffs ought not to have joined in it, but to have prayed the judg- 
 ment of the court whether the defendants should be admitted to it. 
 
 The court have an important discretion in allowing or disallow- 
 ing demurrers to evidence.®^ Although a demurrer is a matter of 
 right and the opposite party may be compelled to join in it, when 
 properly presented, yet he should ahvays be careful to see that it con- 
 tains the proper admissions before he joins in it. On the whole, we 
 are satisfied that the demurrer was tendered and joined without fully 
 examining and duly considering the nature and effect of the measure. 
 
 And we think, not as Lord Chief Justice Rolle said, "that both 
 parties have misbehaved themselves," but in the language of the 
 Supreme Court of the United States, "that the demurrer has been so 
 incautiously framed that there is no manner of certainty in the state 
 of facts upon wliich any judgment can be founded. Under such a 
 predicament the settled practice is to award a new trial, upon the 
 ground that the issue between the parties has not been tried." This 
 was done in the analogous cases of Wright v. Pindar, and Gibson v. 
 Hunter, by the House of Lords, and in Fowle v. Common Council of 
 Alexandria,^'' by the Supreme Court of the United States. 
 
 Venire facias de novo awarded. 
 
 ^'Shields V. Arnold, i Blackf. (Ind.) 109 (1820) ; Maus r. Montgomery, 
 II Serg. ^ R CP^S LZZDJ^^^^A) '• Morrison v. McKinnon, i2TTx^552 (ISiSBJ; 
 Van Stone v. Stillwell, 142 U. S. 128, 35 L. ed. 961, 12 Sup. Ct. 181 (1891) ; 
 University of I'a. v. Snyder, 100 Va. 567, 42 S. E. 2i7 (1902). Compare 
 Fowler v. Macomb, 2 Root (Conn.) 388 (1796). 
 
 *'ii Wheaton (U. S.) 320, 6 L. ed. 608 (1826). Accord : Dormady v. Bank, 
 2 Scam. (111.) 236 (1840) ; Ingram v. Jacksonville St. R. Co., 43 Fla. 324, 30 So. 
 800 (1901). 
 
 "The demurrant attacks the evidence of his adversary, and in the very 
 nature of things, this attack can not be aided by his own evidence. The suffi- 
 ciency of the adversary's evidence to support the issue upon his part is the 
 only question presented by the demurrer, and this question must be deter- 
 mined without reference to the evidence of the demurring party; indeed, 
 such a partj' does not and can not have any evidence. The evidence of the 
 adversary is alone involved in the issue raised by the demurrer." Frits v. 
 Clark, 80 Ind. 591 (1881); Goodman v. Ford, 23 Aliss. 592 (1852). Every
 

 
 WASHBURN V. ALLEN 393 
 
 SECTION 6. NONSUIT. 
 
 WASHBURN V. ALLEN. 
 
 Supreme Judicial Court of Maine, 1885. 
 77 Maine 344. 
 
 Foster, J. : This action was tried before the presiding justice, 
 without the intervention of a jury. The parties upon both sides had 
 introduced their evidence, and at this stage of the trial the plaintiff 
 claimed to become nonsuit, to which the defendant objected; there- 
 upon the court ruled, as a matter of law, that the plaintiff could not 
 become nonsuit against the defendants' objection.^^ 
 
 Before proceeding to consider the authorities that bear upon this 
 question, it may be remarked that nonsuits may be classed under two 
 divisions, (i) Involuntary; as when ordered by the court against 
 the plaintiff's objection. (2) Voluntary, when allowed by the court 
 on the plaintiff's own motion. Into the one or the other of the two 
 classes the decided cases fall. The case under consideration comes 
 within the last, and brings us to consider the rule of practice appli- 
 cable in such cases. 
 
 fact is taken against the party demurring as true, and no testimony can be 
 considered which impugns its truth. Davisji^Steine r, 14 Pa. St . 275^ 5^ Am. 
 Dec. 547 (1850); Cocksedge v. FanshawTj^ DougTriiH (1779) ; Uoe v.' Rue, 
 4 Blackf. (Ind.) 263, 29 Am. Dec. 368 (1836) ; McKowen v. Ms Ponald, ,^^^, 
 V^ gt /l'|T, 82 Am. Dec. 576 (1862) ; Plant v. Edwards, HsTnd. 588 (1882) ; 
 Lake Shore, &c., R. Co. v. Foster, 104 Ind. 293, 4 N. E. 20, 54 Am. Rep. 319 
 (1885) ; Hopkins v. Railroad, 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354 
 (1895) ; Des Moines Life Assn. v. Crim, 134 Fed. 348, 67 C. C. A. 330 (1904) ; 
 Mugge v. Jackson, 50 Fla. 235, 39 So. 157 (1905) ; Mcily v. St. Louis & F. S. R. 
 Co., 215 Mo. 567, 114 S. W. 1013 (1908) ; Carter v. Prairie Oil & Gas Co., 80 
 Kans. 792, 104 Pac. 563 (1909). In Virginia and West Virginia an anomalous 
 practice exists by which the evidence of both parties is put in the demurrer, the 
 demurrant admitting all that may reasonably be inferred from the evidence of 
 the adverse party and waiving so much of his evidence merely as is contra- 
 dicted or impeached thereby. Trout v. Va. & Tenn. R. Co., 23 Gratt. ( Va.) 619 
 (1873) ; Chesapeake, &c., R. Co. v. Sparrozvs, 98 Va. 630, 37 S. E. 302 (1900) ; 
 Bowers v. Bristol Gas. &c. Co., 100 Va. 533, 42 S. E. 296 (1902) ; Bowman 
 v. Dewing, 50 W. Va. 445, 40 S. E. 576 (1901). 
 
 A demurrer to evidence must be in writing. Landt v. McCiillough, 218 
 111. 607, 75 N. E. 1069 (1905) ; Rockwell v. Congress Hotel Co., 22,7 111 98, 86 
 N. E. 740 (1908) ; Bridgeport Wooden-ware Mfg. Co. v. Railroads, 103 Tenn. 
 490, 53 S. W. 739 (1890) ; Skinner Mfg. Co. v. Wright, 51 Fla. 324, 41 So. 28 
 (1906) ; Newport, &c., Co. v. Nicolopoolos, 109 Va. 165, 63 S. E. 443 (1909). 
 
 Upon demurrer to evidence, the damages may be assessed by the prin- 
 cipal jury conditionally before they are discharged; or they may be assessed 
 by another jury upon a writ of inquiry after the demurrer is determined. 
 Darrose v. Newholt, Cro. Car. 143 (1629) ; Feay v. Decamp, 15 Serg. & R. 
 (Ea^) 227 (1826); Young v. Foster, 7 Port.^Ala. 420 (1838) ; "Mobile & O. 
 R. Co. V. Mc Arthur, 43 Miss. 180 (1870) ; Holmes v. Phoenix Miit. Life Ins. 
 Co., 49 Ind. 356 (1874) ; Hanover Fire Ins. Co. v. Lewis, 23 Fla. 193, i So. 
 863 (1887) ; Galveston, &c., R. Co. v. Templeton, 87 Tex. 42, 26 S. W. 1066 
 (1894). 
 
 ^*The argument of counsel and part of the opinion of the court are 
 omitted.
 
 394 TKIAL 
 
 The English practice differs somewhat from that of our own 
 courts. At c6mmon law, as early practiced in the l^i.c^hsh courts, 
 upon every continuance or day given over before judg-ment, the 
 plaintiff was demandable, and upon his nonappearance might have 
 been nonsuit. Bacon's Abr. Nonsuit, D. ; Co. Litt. 139b. And no 
 verdict could be returned and given, unless in his presence, or that 
 of his counsel, but the plaintiff was said to be nonsuit. Therefore it 
 was usual for a plaintiff, when he or his counsel perceived tliat he 
 had not given evidence sufficient to maintain his issue, to withdraw 
 himself and be voluntarily nonsuited. 3 Black. Comm. *376; Murphey 
 V. DonJan, 5 B. & C. 178, 11 Eng. Com. Law 195. And whenever 
 the plaintiff ought to appear in court, he was at liberty to witlidraw. 
 Co. Litt. 138, b, 139, a; Robinson v. Lawrence, 7 Exch. 123. The| 
 plaintiff had a right to be nonsuited at any state of the proceedings! 
 he might prefer, and thereby reserve to himself the power of bring- 
 ing a fresh action for the same subject-matter; and the right con-/ 
 tinued to the last moment of the trial, even till after verdict rendered, 
 or, where the case was tried by the court without the intervention 
 of a jury, until the judge had pronounced his judgment. Outlnvaite 
 V. Hudson, 7 Exch. 380. Consequently, if he was not satisfied with 
 the damages given by the jury, he might become nonsuit. Bacon's 
 Abr. Nonsuit, D. ; Keat v. Barker, 5 Modern 208. 
 
 But by statute, 2 Henry IV, ch. 7 (A. D. 1400), it w^as ordained 
 and established, that if the verdict passed against the plaintiff, he 
 should not be nonsuited, which before that time was otherwise at 
 common law\ 
 
 Notwithstanding this statute, which was an amendment of the 
 common law, it was held that the plaintiff" might be nonsuited after 
 the finding of a special verdict, and the reason of this would seem 
 to be that a special verdict is in the nature of a statement of facts ; 
 and also after a demurrer and argument thereon, and a rule for 
 judgment for defendant, though it could not be done at the same 
 term. Bacon's Abr. Nonsuit, D. ; Alderly v. Alderly, Cro. Jac. 35. 
 And this statute was afterwards construed as applying only to cases 
 where the jury had passed upon the whole matter. Earl of Oxford 
 V. Waterhonse, Cro. Jac. 575 ; Com. Dig. Pleader, w\ 5. Except in 
 the cases above stated, the plaintiff could always become nonsuit 
 upon any continuance. '^^ 
 
 In 1740, the English practice was further regulated by statute 
 of 14 Geo. II, ch. 17, which provided: "That where issue is, or shall 
 be, joined in any action or suit at law in any of his majesty's courts 
 of' record, and the plaintiff' or plaintiffs, in any such action or suit, 
 hath or have neglected, or shall neglect, to bring issue on to be tried 
 according to the course and practice of the said courts respectively, 
 it shall and may be lawful for the judge or judges of the said courts 
 respectively, at any time after such neglect, upon motion made m 
 open court (due notice thereof having first been given), to give the 
 
 '"Under the modem English practice a plaintiff can not elect to be non- 
 suited • if he offers no evidence at the trial, the defendant is entitled to a 
 verdict. Fox v. Star Neivspaper Co., L. R. ( 1898) i Q. B. 636 ; affirmed L. K. 
 (1900) App. Cas. 19, and see rules of supreme court, order XXVI, rules 1-4.
 
 WASHBURN V. ALLEN 395 
 
 like judgment for the defendant or defendants in every such action 
 or suit, as in the case of nonsuit." ^^ 
 
 It would seem that the practice in England, under the common 
 law, as v/ell as since tlie more modern statutes, has been perhaps **■ 
 more liberal in favor of allowing nonsuits to plaintiffs as matter of 
 right, than is prescribed in this country. According to the practice 
 there, as appears by the decisions of their courts, a plaintiff could, 
 not be nonsuited on the trial against his assent, but might insist, as 
 matter of right, on the cause going to the jury, and thus taking his 
 chance of a verdict. Dewar v. Purday, 4 Ad. & El. 633.®^ 
 
 Whatever may be practice elsewhere, the courts of Massa- 
 chusetts and New Hampshire have never adopted the early English 
 practice, but, on the contrary, have declared that, after a cause has 
 been opened to the jury, the plaintiff can not become nonsuit, as a 
 matter of legal right, but the court might allow it, at that stage of 
 the case, in its discretion. In Haskell v. Whitney, 12 Mass. 47, 
 Jackson, J., in pronouncing the opinion of the court says : "The 
 plaintiff, or demandant, may, in various modes, become nonsuit, or 
 discontinue his suit, at his pleasure. At the beginning of every term, 
 at which he is demandable, he may neglect or refuse to appear. If 
 the pleadings are not closed, he may refuse to reply, or to join an 
 issue tendered; or, after issue joined, he may decline to open his 
 cause to the jury. The court also may, upon sufficient cause shown, 
 allow him to discontinue, even when it can not be claimed as a right ; 
 as after the cause is opened, and the evidence submitted to the 
 jury."^^ 
 
 We have carefully examined not only the authorities cited, but 
 many others, in support of the extension of the rule to authorize a 
 nonsuit, as matter of right, up to the time of verdict, but we are not 
 satisfied tliat, as against the decisions of our own courts, the English 
 practice, or the old common law doctrine should prevail. In the 
 cases to which we have referred, our courts have fully recognized, 
 though they have not seen fit to follow, the ancient common law as 
 laid down many years ago in England. Many of the customs of our 
 courts are different from tliose existing at that time, when no ver- 
 dict could be returned for or against a plaintiff unless he or his 
 counsel v/as present in court, and to avoid which, or, if in his favor, 
 and tlie damages were not satisfactory to him, he might withdraw 
 himself and become nonsuit. Cessanfe ratione legis, cessat ipsa lex. 
 
 ^Meivhurn v. Langley, 3 T. R. I (1789) ; Porselius v. Haddocks, I H. 
 Bl. lOT (1789) ; Burton v. Harrison, I East 346 (1801) ; Barnes' notes 313. 
 
 **See note 99 to Ringold v. Haven, post p. 403. 
 
 *-The court also cites Locke v. Wood, 16 Mass. 317 (1819) ; Means v. 
 Welles, 12 Mete. (Mass.) 356 (1847) ; Lowell v. Merrimack Mfg. Co., 11 Gray 
 (Mass.) 382 (1858); Shaiv v. Boland, 15 Gray (Mass.) 571 (i860); Truro 
 V. Atkins, 122 Mass. 418 (1877) ; Btirbank v. Woodward, 124 Mass. 357 (1878) ; 
 Judge of Probate v. Abbott, 13 N. H. 21 (1843) ; Wright v. Bartlctt, 45 N. H. 
 289 (1864) ; Pollard v. Moore, 51 N. H. 188 (1871) ; Fulford v. Converse, 54 
 N. H. 543 (1874) ; Parker v. Burns, 57 N. H. 602 (1876) ; Farr v. Cate, 58 
 N. H. 367 (1878) ; Proprietors v. Davis, 2 Maine 356 (1822) ; Theobald v. 
 Colby, 35 Aiaine 179 (1853) ; Philips v. Echard, Cro. Jac. 35 (1605) ; Larrabee 
 V. Rideout, 45 Maine 193 (1858).
 
 396 TRIAL 
 
 Hence, not only upon principle, but authority, we may safely 
 found this rule: That the i)laintilT, before ojiening his case to jury, 
 or to the court, when tried before the court without the intervention 
 of the jury, may become nonsuit as a matter of right ; after the case 
 is opened, and before verdict, leave to become nonsuit is within tlie 
 discretion of the court ; after verdict there can be no nonsuit."^ * * * 
 
 In this case both parties had introduced their evidence. The 
 plaintilT thereupon stated that he voluntarily became nonsuit. The 
 defendants objected. The court then ruled, as matter of law, that 
 the plaintilT could not become nonsuit against the defendant's objec- 
 tion, and ordered judgment for defendants. 
 
 This, we think, was error; it was, in effect, expressly denving 
 that the trial court had the power, in the exercise of its discretion, 
 to grant the nonsuit asked for by the plaintiff, and which, as we 
 have stated, could have been done, in the discretion of the court, at 
 tliat stage of the case. 
 
 Exceptions sustained. 
 
 yo EASTON BANK v. CORYELL. 
 Supreme Court of Pennsylvania, 1844. 
 9 Waits and S. (Pa.) 153- 
 
 r . 
 
 Error to the common pleas of Bucks county. This was an action 
 of assumpsit on a promissory note brought by the Easton Bank 
 against Coryell and Murray. After the charge of tlie court, the jury 
 retired to deliberate upon their verdict, and after the lapse of some 
 time came into court. After they had entered the jury box and nine 
 of them had been called, and before the clerk had finished calling 
 them, the plaintiff asked to suffer a nonsuit. The court decided that 
 it was too late, and refused to allow it, and plaintiff excepted. The 
 refusal was one of the assignments of error. 
 
 •^Accord: Bcnolst v. Miirrin, 48 Mo. 48 (iS;!*) ; United States v. Huma- 
 son, 8 Fed. 71 (1881) ; Bettis v. Schricbcr, 31 Minn. 329, 17 N. W. 863 (1883) ; 
 Johnson v. Bailey, 59 Fed. 670 (1894) ; Derick v. Taylor, 171 AI:iss. 444 (1898) ; 
 Carpenter v. N.'Y., N. H. & II. R. Co., 184 Mass. 98, 68 N. E. 28 (1903)- 
 In other jurisdictions the plaintiff may suffer a voluntary nonsuit at any 
 time before the case is submitted to the jur>'. Amos v. Sinnott, 5 111. 440 
 (1843) ; Adams v. Shepard, 24 HI- 464 (i860) ; McClelland v. Louisville, N. A. 
 &c R. Co., 94 Ind. 276 (1883) ; National Broadvjay Bank v. Lesley, 31 Fla. 56 
 (1893) ; Morrisey v. Chicago & N. W. R. Co., 80 Iowa 314, 45 N. W. 545 (1890) ; 
 Toulouse V. Pare, 103 Cal. 251, 37 I^ac. 146 (1894) ; Bauman v. Whiteley, 57 N. 
 J L. 487, 31 Atl. 9S2 (1895) ; Osborne v. Davies, 60 Kans. 695, 57 Pac. 941 
 (1899) ; Greenfield v. Carey, 70 N. J. L. 613, 57 Atl. 269 (1904) ; McPherson v. 
 Seattle Elec. Co., 53 Wash. 358, loi Pac. 1084 (1909) ; Snyder v. Collier, 85 
 Nebr 552 123 N. W. 1023 (1909) ; Knight v. ///. Cent. R. Co., 180 Fed. 368 
 '('1910) ; Strottman v. R. Co., 22S J^fo. 154, 128 S. W. 187 (1910) ; Van Wage- 
 men V. Chladek, 27 .S. Dak. 436, 131 N. W. 507 (1911). The New York Code of 
 Civil Procedure provides, § 1 182 : "It is not necessary, in an action in a court 
 of record to call the plaintiff, when the jurors are about to deliver their ver- 
 dict; and the plaintiff, in such an action, can not submit to a nonsuit, after the 
 cause has been committed to the jur>-, to consider the verdict."
 
 MERCHANTS BANK OF CANADA V. SCHULENBERG 397 
 
 Per Curiam. There is no apparent error in the charge ; but the 
 plaintiff was erroneously compelled to submit to a verdict. It was 
 ruled in McLiighan v. Bovard/'^ for reasons not necessary to be 
 repeated, that a plaintiff is entitled to become nonsuit at any time 
 before the jury have declared their readiness to give their verdict 
 in. answer to the prothonotary's formal inquiry; but in this instance 
 they were not ready, for they had not all been called and counted, 
 in compliance with the ceremony that precedes the question of readi- 
 ness. It is better to hold fast to the established criterion, whatever 
 it may be, than introduce imcertainty by departing from it.^^ 
 
 Judgment reversed. 
 
 V^ MERCHANTS' BANK OF CANADA v. ALBERT R. 
 / SCHULENBERG. 
 
 Supreme Court of Michigan, 1884. 
 
 54 Mich. 49. 
 
 Sherwood, J. : This case has once before been in this court (48 
 Mich. 102), but the questions then raised have no bearing upon the 
 points made in the present record. The action is assumpsit upon a 
 Canadian judgment rendered in the Court of Queen's Bench in the 
 province of Ontario, The plea vvas the general issue, with notice of 
 set-off and other special matters in bar of the suit. Under the set- 
 off defendant claimed to be entitled to a judgment. There v;as no 
 contest as to the amount of the plaintiff's claim upon the trial. The 
 record of the Ontario judgment was introduced in evidence without 
 objection, and the plaintiff's counsel rested his case. 
 
 The defendant then examined two witnesses upon his part, and, 
 when nearly ready to close tlie defense, counsel for plaintiff an- 
 nounced to the court that he was taken by surprise by the defendant's 
 testimony ; was not then prepared to meet it; and asked leave of the 
 court to submit to a nonsuit, with the right to move to set the same 
 aside. This application of plaintiff's counsel was objected to by the 
 
 ^4 Watts (Pa.) I'^o S (ig.^n). S ee Pa. Act of April 16, 1903, P - L- 216, § i. 
 
 "^Accord : Price v. Jr'arnerri balk. 17b (1696) ; Kcat v. Barker, 5 Mod. 
 208 (1696) ; Usher v. Sibley, 2 Brev. (S. Car.) 32 (1806) ; Chedoteauv. Domin- 
 qiiez, 7'Mart. (O. S.) (La.) 490 (1820) ; U'ooster v. Burr, 2 Wend. (N. Y.) 
 295 (1829) ; McCredv v. Fev. 7 Watts (FaJ_ 4Q6 (1838) ; Otdhzvaite v. Hud- 
 son, 7 Exch. 380 (1852) ; Stevens v. Esling, 2 F. & F. 136 (i860) ; People's 
 Bank V. Stewart, 93 N. Car. 402 (1885) ; Helzvig v. Plosmer, 73 Mich. 258, 41 
 N. W. 268 (1889) ; Piedmont Mfg. Co., v. Buxton, 105 N. Car. 74, 11 S. E. 
 264 (1890) ; Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427 (1891) ; Jackson 
 V. Meriti, 21 D. C. 276 (1892) ; Felts v. r) el. L._& W. R. Co., 170 P a. St. 432. 
 33 Atl. 97 (iSot) : Crumley v. Lut a. 180 Pa. 476. .-^6 Atl . .929 (1897). See 
 Sharpe v. Soivers, 152 N. Car. 379 (1910). The ancient practice was for the 
 officer of the court to ask the jur\-, after they had considered of their verdict, 
 if they were agreed in their verdict. If they answered in the affirmative, 
 the officer then called the plaintiff by name to hear the verdict; and if he 
 appeared the verdict was pronoimced. If he did not appear to prosecute his 
 suit he was nonsuited." Per Abbott, C. J., in Murphy v. Donlon, 5 B. & C. 
 178 (.1826).
 
 39S TRIAL 
 
 defendant, on the j^'ound that since the suit was commenced the 
 Statute of Limitations had commenced to run against the claim 
 stated in his notice of set-ofT. Tlie objection was overruled bv the 
 court, and counsel for the defendant excepted. Counsel for defend- 
 ant tliereupon admitted the plaintiff's claim of $531,000 stated in his 
 declaration, and claimed his readiness to make proof of his offset 
 to the amount of $646,348, and insisted upon his right to proceed 
 with the trial, establish his claim, and have a verdict for the sur- 
 plus in his favor, and requested the court to permit him to do so. 
 Counsel for plaintiff objected, the court sustained the objection, and 
 defendant's counsel again excepted. These two exceptions are now 
 before us for consideration, and only these. 
 
 The question is simply this: Whether, under our statute, when 
 the defendant has given notice of set-off and claims a balance in his 
 favor, tlie plaintiff can discontinue his suit, or be permitted to dis- 
 continue it, witliout tlie consent of and against the wishes of the 
 defendant. 
 
 Set-off is a mode of defense. By it the existence of the demand 
 sued upon is, in a certain sense, admitted; but at the same time, the 
 defendant sets up a demand against the plaintiff to counterbalance 
 it, in whole or in part, and under our statute the defendant may have 
 judgment for any balance found in his favor. Originally the defend- 
 ant's claim could only be allowed to the extent of the plaintiff's 
 demand proved on tlie trial. Toml. Law Diet. ; Babbington on Set- 
 oft" I. At common law the defendant was in no instance allowed to 
 recover judgment for damages for a positive claim against the plain- 
 tiff*. To obviate the rigor of this rule of law, and to avoid a multi- 
 plicity of suits where mutual cross-demands existed, unconnected 
 with each other, and to have the whole adjudicated upon in one 
 action, was the great object of the statute of set-off. Ward v. Fel- 
 lers, 3 Mich, 281. 
 
 The right of set-off at law is given by statute, and is, of course, 
 limited by it. The common law never recognized it. Bacon Abr. 
 tit. "Set-off;" Woods v. Ayres, 39 IMich. 345. 
 
 How. Stat., sec. 6886 of tlie chapter authorizing set-off in jus- 
 tice's court, reads as follows: "If the amount of set-off duly estab- 
 lished, be equal to the plaintiff's debt, judgment shall be entered for 
 the defendant, with costs; if it be less than the plaintift''s debt,_tlie 
 plaintiff' shall have judgment for the residue only, with costs; if it 
 be more than the plaintiff's debt, and the balance found due to the 
 defendant from the plaintiff in the action be three hundred dollars 
 or under, judgment shall be rendered for the defendant for the 
 amount thereof, with costs ; and execution shall be awarded as upon 
 a judgment in a suit brought by him; but no such judgment shall be 
 rendered against the plaintiff when the contract which is the sub- 
 ject of suit, shall have been assigned before the commencement of 
 such suit, nor for any balance due from any other person than the 
 plaintiff in the action." The same provisions are made applicable 
 to proceedings in courts of record, in cases of set-off. See How. 
 Stat., sees. 7367, 7368.
 
 MERCHANTS BANK OF CANADA V. SCHULENBERG 399 
 
 The object of the statute is beneficial and equitable, and in its 
 operation it proceeds upon equitable principles. Doivner v. Eggles- 
 ton, 15 Wend. (N. Y.) 55, 56. 
 
 The doctrine of set-off was borrowed from the doctrines of com- 
 pensation of the civil law, and constituted an important part thereof. 
 2 Poth. Obi. No. 13, p. 99; Duncan v. Lyon, 3 Johns. (N. Y.) ch. 
 359; Reab v. McAUster, 8 Wend. (N. Y.) 115; Whitaker v. Rush, 
 I Ambler 407. This doctrine was also followed to some extent in 
 tlie English courts before the statutes of set-off were enacted. See 
 Chapman v. Derby, 2 Vern. 117; Lindsay v. Jackson, 2 Paige 
 (N. Y.) 581. And while it is true that the right of set-off is statu- 
 tory and we can not enlarge the right beyond what the statute rea- 
 sonably allows, yet the courts may, and it is their duty in determin- 
 ing, regulating and applying the practice in securing and enforcing 
 that right, to be liberal in their action, and to give the law such con- 
 struction as wall secure all the benefits and advantages intended. 
 
 The right of the plaintiff at common law to voluntarily submit to 
 a nonsuit, or to discontinue his suit at any time before the jury have 
 rendered their verdict, is well supported by the authorities, and has 
 always been the practice in this state when no set-off has been 
 pleaded. 3 Chit. Pr. 910; i Burril's Pr. 241; Wooster v. Burr, 2 
 Wend. (N. Y.) 295; Circuit Court Rule 26; i Green's Pr. 447, 279; 
 Slocomh V. Thatcher, 20 Mich. 52. I think that when tlie set-off is 
 purely defensive, and no affirmative action is required on the part 
 of the court or jury, the right of the plaintiff to become nonsuited 
 at his pleasure, before verdict or judgment, should be in the dis- 
 cretion of the court ; which discretion should not be exercised against 
 the right, except in cases where the rights of the defendant might be 
 prejudiced. 
 
 Under the statute, however, authorizing a judgment to be ren- 
 dered in case of set-off for any balance found due the defendant 
 upon the trial, the rule is and should be different. In such a case, 
 really two suits are pending before the court to be tried at the same 
 time. In the one, the plaintiff has the affirmative of the issue ; and in 
 the other, the defendant has the affirmative. It is only after the 
 trial, when the extent of each party's claim has been ascertained, 
 that the liquidation of the smaller claim occurs by way of set-off, 
 or can be made by the court or jury. 
 
 The statute requires the defendant to bring forward his claim 
 for adjudication at the time the plaintiff brings his suit, and thereby 
 determines the time when the defendant shall have his claim adjudi- 
 cated, at the peril of doing so at his own expense. In all other re- 
 spects, the case stands as though two separate suits were brought to 
 determine the rights of the parties ; and I fail to see why both cases 
 should not be governed by the same rules, and receive the same 
 treatment at the hands of the court. Simple justice requires this, and 
 I can see no reason why the equitable rules upon which the whole 
 doctrine of set-off is based should not be carried out in the practice 
 In these cases. Adopting this rule, the plaintiff would have no more 
 right to discontinue the defendant's suit than the latter would that 
 of the former ; and such, I think, should be the law.
 
 400 TRIAL 
 
 These views find support in the followinj^ authorities, which I 
 think shouKl govern this case: Tlioiiias v. /////, 3 Tex. 270; Brad- 
 ford V. Honiilton, 7 Tex. 55. 5S, 59; Francis v. Edivards, yy N. Car. 
 271, 275; Rilcv V. Carter, 3 llunii)li. (Tcnn.) 230; Rcss v. Van Pat- 
 ini. 13 ilow. Pr. (N. Y.) 258; Cockle v. Underwood, 3 Duer (N. Y.) 
 076; J 'an Allen v. Schennerhorn, 14 How. Pr. (N. Y.) 287. 
 
 I think the exceptions of defendant's counsel to the action of the 
 court, in not allowing the defendant to make full proof of his claim 
 and take judgment tlierefor, were well taken. 
 
 The judgment must be reversed with costs and a new trial 
 granted. 
 
 Campbell, J. concurred. 
 
 CooLEY, C. J. : In this case the defendant relied upon a set-off, 
 which, he claimed, was larger than the plaintiff's demand, and he 
 brings the case to this court, assigning for error the order of the 
 circuit court permitting tlie plaintiff, notwithstanding his objection, 
 to submit to a nonsuit. 
 
 The general right of the plaintiff to discontinue his suit or to 
 submit to a nonsuit, at any time before A-erdict, is undoubted, and in 
 the absence of any statute taking away the right, it exists in the cases 
 where set-off is relied upon, to the same extent as in otlier cases. 
 This is fully recognized in Cummings v. Pruden, ii Mass. 206, and 
 Branham v. Bronni, i Bailey (S. Car.) 262. In several states stat- 
 utes have been passed taking away the right, but w^e have no such 
 statute. The fact that the statute of set-offs permits judgment to be 
 taken by the defendant for the balance found due him, does not pre- 
 clude a discontinuance. Cummings v. Pruden, supra. 
 
 But it is said there are decisions to the contrary of these, and 
 several are referred to. The Texas cases are not in point, as they 
 are decided under the civil law, which does not prevail in this state. 
 Egery v. Poiver, 5 Tex. 501; Walcott v. Hendrick,6 Tex. 406; 
 Bradford V. Hamilton, 7 Tex. 55.^^ The case of Francis v. Edwards, 
 yj N. Car. 271, was decided upon a construction of the code of tliat 
 state, and therefore has no bearing. In Riley v. Carter, 3 Humph. 
 (Tenn.) 230, the defendant had obtained judgment for his set-off 
 in justice's court, and the plaintiff removed tlie case to tl;e circuit 
 court by certiorari, and then, in that court, was given leave to dis- 
 miss his suit. This was palpable error, and the court so held; but 
 we discover no analogy between that case and this. The defendant 
 had his judgment, and unless error was shown, had a right to retain 
 it. The three New York cases of Cockle v. Underwood, 3 Duer 
 (N. Y.) 676; Rees v. Van Patten, 13 How. Pr. (N. Y.) 258; and 
 ]"an Alen v. Schermerhorn, 14 How. Pr. (N. Y.) 287, are not in 
 point because decided under the state code; but so far as they can 
 be considered as having a bearing, they are against the defendant 
 Instead of for him, for they all recognize the power of the court 
 
 "Accord: Jackson v. Furst, (Tex. Civ. App.) 154 S. W. 243 (1913)- 
 See also, in Louisiana: Jones v. Jenkins, 9 Rob. (La.) 180 (1844); Davis 
 V. Young, 35 La. Ann. 739 (1883) ; State v. Rost, 48 La. Ann. 455, 19 So. 256 
 (1896).
 
 nS \'^ f(^cp^^CC5_. coc(7 
 
 RINGGOLD V. HAVEN 4^1 
 
 in its discretion to permit the plaintiff to discontinue; which is all 
 that is necessary to sustain this judgment. 
 
 The judgment should be affirmed.^'' 
 
 Champlin, J., concurred. 
 
 Affirmed. 
 
 /^ 
 
 RINGGOLD V. HAVEN & LIVINGSTON. 
 
 Supreme Court of California, 1850. 
 
 I Cal. 108. 
 
 Action against the defendants as common carriers for not safely 
 transporting goods of the plaintiff from New York to San Francisco. 
 Plea the general issue. On the trial defendants moved for a non- 
 suit on the ground that the plaintiff's evidence disclosed that the con- 
 tract for transportation was with Livingston, Wells & Co., and not 
 with defendants. The court refused the nonsuit on the ground that 
 defendants were liable as having made the contract without disclos- 
 ing their principal. On appeal two questions were considered: 
 1st. Had the court the legal right to order the plaintiff to be non- 
 
 *'There is a conflict of opinion upon the point discussed in the principal 
 case, due, in part, to the language of the statutes and their interpretation. 
 In accord with the view of Cooley, C. J., see Usher v. Sibley, 2 Brev. (S. 
 Car.) 32 (1806); Cuinmings v. Pruden, 11 Mass. 206 (1814) ; Branham v. 
 Brown, I Bailey L. (S. Car.) 262 (1829) • McCrcdv v. Fcv, 7 Watts ( Pa.) 496 
 (1838) ; Sewall v. Tarhox, 30 :Maine 27 O849) ; Buffington v. Quackenhross, 
 5 Fla. 196 (1853) ; Clarke v. Wall, 5 Fla. 476 (1854) ; Fowler v. Lawson, 15 
 Ark. 148 (1854); Fink v. Bruihl, 47 Mo. 173 {1^,70) ; Gilmime^JLJBMd^^d 
 Pa;St,_4^2_(i8Z4) ; Anderson v. Gregory, 43 Conn. 61 (1875) ; Hnffstutler 
 yrLoidsvitte Packing Co., 154 Ala. 291, 45 So. 418 (1908). The trend of 
 authority is contra. Means v. Welles, 53 Mass. 356 (1847) ; Hancock Ditch 
 Co. v. Bradford, 13 Cal. 637 (1859) ; McLeod v. Bcrtschy, 33 Wis. 176, 14 
 Am. Rep. 755 (1873) ; Tabor v. Mackkee, 58 Ind. 290 (1S77) ; Egolf v. Bryant, 
 63 Ind. 365 (1878) ; Mathews v. Taaffe, 44 Minn. 400, 46 N. W. 850 (1890) ; 
 East St. Louis v. Thomas, 102 111. 453 (1882) ; In re Lasak, 131 N. Y. 624 
 (1892); Boone v. Bush, 91 Tenn, 29, 17 S. W. 792 (1891) ; Northwestern 
 Mut. Life Ins. Co. v. Barbour, 95 Ky. 7, 23 S. W. 584, 15 Ky. L. 394 (1893) ; 
 Rumbough v. Young, 119 N. Car. 567, 26 S. E. 143 (1896) ; Samaha v. Saniaha, 
 18 App. Dist. Columbia, 76 (1910) ; Lay v. Collins, 74 Ark. 536, 86 S. W. 
 281 (1905) ; Cray v. Granger, 48 Wash. 442, 93 Pac. 912 (1908) ; Menke v. 
 Barnhart, 12,7 111. App. 223 (1907) ; Znckcrman v. Witkowski, 115 N. Y. S. 
 157 (1909) ; Hamlin v. Walker, 228 Mo. 611, 128 S. W. 945 (1910) ; Giirr v. 
 Brinson, 138 Ga. 665, 75 S. E. 979 (1912) ; Long v. Bagwell, 38 Okla. 312, 
 133 Pac. 50 (1913)- 
 
 In England the rules of the supreme court, order 21, rule 16, provide : 
 "If, in any case in which the defendant sets iip a counterclaim, the action 
 of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may 
 nevertheless be proceeded with." Roberts v. Booth, L. R. (1893) i Ch. Div. 
 52; Adams v. Adams, L. R. (1892) i Ch. Div. 369. In equity see Pullman's 
 Palace Car Co. v. Cent. Tr. Co., 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. 
 808 (1897); Boyle V. Stallings, 140 N. Car. 524, 53 S. E. 346 (1906); 
 Inman v. Hodges, 80 S. Car. 455, 61 S. E. 958 (1908) ; Frost v. Idaho Irriga- 
 tion Co., 19 Idaho 372, 114 Pac. 38 (1911) ; Tee v. Noble, 23 N. Dak. 225, 
 13s N. W. 769 (1912) ; Brooks v. White, 22 Cal. 719, 136 Pac. 500 (1913) ; 
 Holmes v. Holt, 90 Kans. 774, 136 Pac. 246 (1913). 
 
 26 — Civ. Proc.
 
 402 TKIAL 
 
 suited without his consent? 2iul. Did the court err in refusinj^ the 
 motion for a nonsuit? Botli questions were answered in the affirm- 
 ative and a new trial was granted. Upon tlie first point tlic opinion 
 of the court was as follows:'-'^ 
 
 Bf.nnett, J. : As to tlie right of tlie court to direct a compulsory- 
 nonsuit. Upon this point we are met by a contrariety of authorities 
 and a diversity of argument. In some of the states, the affirmative, 
 in others the negati\e, of the proposition is asserted in theory and 
 maintained in practice. In some, it is held, that the court has no 
 right, in any case, to nonsuit the plaintiff even though his evidence 
 he insufficient in law to support his action; whilst, in others, it is 
 settled, that a jury should be allowed to receive no cause until the 
 court is satisfied that the evidence is sufficient in law to autliorize 
 the jury to find a verdict in favor of the plaintiff. In all, however, 
 it is agreed, that cases may sometimes, under certain forms, be 
 witlidrawn from the jury and reserved for tlie sole consideration and 
 determination of the court. This last is a common ground in the 
 English courts, in the federal courts of the Union, and in the courts 
 of the various states. The only difference upon the subject which 
 appears to exist, is as to the manner in which the conceded end shall 
 be reached. In the federal courts, and in the courts of some of the 
 states, the object is attained by means of the cumbrous and compli- 
 cated machinery of a demurrer to evidence; in the courts of others 
 of tlie states, through the simpler and easier process of motion for 
 nonsuit at the trial. In both cases, the same end is arrived at; and 
 the one remedy as well as the other can be applied only where the 
 plaintiff shall have failed to have made out a case which the law says 
 is proper to be submitted to a jury. The former practice is constantly 
 passing more and more into disfavor, and the latter usurping its 
 place. Thus, at the present day, in the English courts, although it 
 is held, in theory, to be optional witli the plamtiff w'hether he shall 
 be nonsuited or not, and that he may compel tlie defendant to resort 
 to a demurrer to evidence, yet the constant practice there is for the 
 plaintiff, upon tlie suggestion of the judge that the evidence is 
 insufficient, to submit to a nonsuit, w^ith leave to move the court in 
 banc to set it aside.^*^ Graham's Pr. 270. In the state of New York 
 the practice of compulsory nonsuit is perfectly well settled. Clements 
 v. Benjamin, 12 Johns. (N. Y.) 298; Pratt y. Hull, 13 Johns. (N. Y.) 
 334; Stuart V. Simpson, 1 Wend. (N. Y.) 376; Betts v. Jackson, 6 
 Wend. (N. Y.) 173. The reasoning of the court upon this subject in 
 Pratt V. Hull is convincing: "The answer to this abstract question," 
 they say, "can not admit of a doubt. This must be a power vested 
 in the court. It results necessarily from their being made the judges 
 of the law of the case where no facts are in dispute. It is a pure 
 question of law, whether under a given state of facts, the plaintiff 
 is in law entitled to recover. Unless this is a question of law for the 
 courts, there is no meaning in what has been considered a salutary 
 
 The statement of facts is abridged from the opinion of the court, 
 only a part of which is printed. 
 
 ■"aBut see note 89 to Washburn v. Allen ante p. 394.
 
 RINGGOLD V. HAVEN 403 
 
 rule in our courts of justice, that to questions of law the judges are 
 to respond, and to questions of fact the jury." The general rule is 
 well laid down in Stuart v. Simpson, above cited, as follows : "If the 
 evidence would not authorize a jury to find a verdict for the plain- 
 tiff, or if the court would set it aside, if so found as contrary to evi- 
 dence, in such case it is the duty of the court to nonsuit the plaintiff." 
 The power of a court, acting according to the course of the common 
 law, to set aside a verdict, which is contrary to, or unsustained by, 
 the evidence, is too clear to admit of a doubt; and the power of a 
 civil law court of second instance to reverse the judgment of a court 
 of first instance, on the ground that it is against the weight of evi- 
 dence, is also unquestionable. If, therefore, upon a given state of 
 facts, a court would be obliged to set aside a verdict of the jury as 
 against the evidence, we see no reason or propriety in submitting 
 such facts to them for their consideration. When their determina- 
 tion will be a nullity, why compel them to deliberate ? Such a course 
 is neither creditable to the law, nor complimentary to the jury. Nor, 
 in adopting the practice of nonsuit, is there to be apprehended any 
 danger of encroachment upon the rights of parties or of abridgment 
 of the prerogatives of juries. This system of trial can be expected to 
 operate beneficially, and with certain, not fickle, results, only when 
 the practical sense of a jury is guided by, and acts in subserviency 
 to, established principles of law, expounded and enforced by the 
 court. We are of the opinion, therefore, that the power of compul- 
 sory nonsuit should be upheld.^^ 
 
 ®'At common law a nonsuit was never ordered against the will of the 
 plaintiff. If he failed to make out a case the court directed him to be called 
 and it was usual, in such a case, to submit to a nonsuit with leave to move 
 to set it aside ; but if the plaintiff thought proper to answer when he was 
 called, he might do so and insist on taking a verdict. Pochin v. Pawley, i 
 Wm. Bl. 670 (1769) ; Dewar v. Piirday, 4 N. & M. 633 (1835) ; Stancliffe v. 
 Clarke, 7 Exch. 439 (1852) ; Ross v. Gill, I Wash. (Va.) 87 (1792) ; Thweat v. 
 Finch, I Wash. (Va.) 217 (1793) ; Irving v. Taggart, I Serg. & JR.. (Pa.) 360 
 (1815) ; Mitchell v. New England Marine Ins. Co., 23 Mass. 117 (1S26) ; 
 Smith V. Crane, 12 Vt. 487 (1840). Following this rule it has been frequently- 
 held that the court has no power to order a nonsuit, where the plaintiff 
 msists on going to the jury. De Wolf v. Raband, i Pet. (U. S.) 476, 7 
 L. ed. 227 (1828) ; Booe v. Davis, 5 Blackf. (Ind.) 115 (1839) ; Wells v. Gaty, 
 8 Mo. 681 (1844) ; Saunders v. Coffin, 16 Ala. 421 (1849) ; Rankin v. Curtenius, 
 
 12 111. 334 (1851). Compare Plolmcs v. Chicago & A. R. Co., 04 111. 439 
 (1880) ; Hill V. Rucker, 14 Ark. 706 (1854) ; Castle v. Bv.llard, 64 U. S. 172, 
 16 L. ed. 424 (1859); Case v. Hannahs, 2 Kans. 490 (1864); Hudson v. 
 Strickland, 49 Miss. 591 (1873) ; Oscanyan v. Arms Co., 103 U. S. 261, 26 L. 
 ed. 539 (1880) ; Zittle v. Schlesinger, 46 Nebr. 844, 65 N. W. 892 (1896). In 
 other jurisdictions the power to order a compulsory nonsuit is exercised 
 where the plaintiff's evidence is insufficient in law to maintain the action. 
 Eddy v. Wilson, i G. Greene (Iowa) 259 (1848); Bailey v. Kimball, 26 N. 
 H. 351 (1853) ; Central Railroad v. Moore, 24 N. J. L. 824 (1854) ; Ellis v. 
 Ohio Life Ins. &■ Trust Co., 4 Ohio St. 628, 64 Am. Dec. 610 (1855) ; Nauga- 
 tuck R. Co. v. Waterbv.ry Button Co., 24 Conn. 468 (1856) ; Gardinier v. Otis, 
 
 13 Wis. 460 (1861) ; Cooper v. Waldron, 50 Maine 80 (1862) ; Aycrigg v. 
 A^. Y. & E. R. Co., 30 N. J. L. 460 (1864) ; Deyo v. A^. Y. Cent. R. Co., 34 
 N. Y. 9, 88 Am. Dec. 418 (1865) ; f^ifl v Th^ hinting T rust. Cn . 108 Pa. St. 
 
 >^ L-ll^8£), see act of March 11, 1875, P. L. 6, extending to all parts of the 
 
 \ ) commonwealth the act of March 11, 1836, P. L. 76, and 13 P. & L. Dig. 
 
 Vof Dec. 23154; Turner v. Bowley, 12 Times Law Rep. 402 (1896); Hanna
 
 404 TRIAL 
 
 RUMFORD NATIONAL BANK z: ROBAIN ARSENAULT. 
 
 Su PKKME JlDlCIAL CoUUT OF IMaINE, I9II. 
 108 Maine Reports 241' 
 
 Emery, C. J. : This was an action against the Richmond Manu- 
 facturing Company and three individuals, Riley, Maxwell and Arsc- 
 nault, as promisors upon a promissory note payable to the plaintiff 
 bank. The note offered and admitted in evidence, however, was 
 signed as promisors only by tlie Richmond Company, Riley and 
 Maxwell. Arsenault had merely endorsed it as payee and endorser. 
 The defendants asked for an order of nonsuit because of this 
 variance, whereupon the plaintiff by leave of court discontinued as 
 to Arsenault. The court nevertheless then ordered a nonsuit and the 
 plaintiff excepted. 
 
 1. The discontinuance as to Arsenault left the action as if orig- 
 inally brought against the other three defendants only, so that at the 
 time of the nonsuit there was no variance as to defendants between 
 tlie note declared on and tliat put in evidence. 
 
 2. The note was subscribed by Riley and Maxwell personally, 
 and also bore the subscription "Richmond Manufacturing Company 
 by Edwin Riley, Pres., J. L. Cummings, Treas." There was no other 
 evidence that the note was that of the company. This lack of evi- 
 dence is also urged as sufficient ground for the nonsuit. But the 
 nonsuit can not be maintained on that ground. The note was admit- 
 tedly the note of Riley and Maxwell, the individual defendants, since 
 tliey had not denied their signatures as required by Court Rule X. 
 As the case stood, the plaintiff was entitled to a verdict against them, 
 even if not against the company, R. S., ch. 84, sec. 98. The in- 
 sufficiency of tlie evidence against the company, (if it was in- 
 sufficient) might have required a direction for a verdict in its favor 
 if asked for, but did not require, nor authorize, a nonsuit as to the 
 other defendants. 
 
 3. In the declaration tlie note was described as bearing interest 
 while the note in evidence did not bear interest. This variance, how- 
 ever, was not urged at the trial as ground for the nonsuit, and is 
 easily remedied by amendment of the declaration. Hence it can not 
 be admitted here as ground for sustaining the nonsuit. 
 
 V. De Garmo, 140 Cal. 172, 73 Pac. 830 (1903) ; Kearns v. Southern Railroad, 
 139 X. Car. 470, 52 S. E. 131 (1905) ; Martin v. Werman, 107 App. Div. 482, 
 95 X. Y. S. 284 (1905). But where a prima facia case is shown the motion 
 must be denied. Davis v. Columbia & Greenville R. Co., 21 S. Car. 93 (1883) ; 
 Brearley v. London & N. W. R. Co., 15 Times Law Rep. 237 (1899) ; American 
 Mfg. Co. V. Smith, 3j Pa. Super._C t. 469 (1907); Sloan v. Pliiladelphia_7!r 
 R. R. Co. 22^ Pa. 5;2 r7-t At1.'Tr^?Tp~('TQOQ) ; Fcaley v. Bull, 163 N. Y. 397, 57 
 N. E. 631 (1900) {Walters v. Syracuse Rapid Transit Co., 178 N. Y. 50, 70 
 N. E. 98 (1904). 
 
 'The reporter's statement of facts is omitted.
 
 ISAACS v. EVANS 405 
 
 4. As a general rule variances that are remediable by allow- 
 able amendments or discontinuance are not grounds for a nonsuit 
 unless the plaintiff refuses to make the necessary amendments.^ 
 
 Exceptions sustained. Case to stand for trial. 
 
 ^ 
 
 ISAACS V. EVANS. 
 
 Court of Appeal, 1900. 
 16 Times Law Reports 480 P -f)^ « 
 
 This was an appeal from a decision of Mr, Justice Farwell. The 
 action related to an alleged partnership in a gold mine in Wales. 
 One of the plaintiffs Thomas Evans (who had assigned his interest 
 to Godfrey D. Isaacs) alleged that he and Meredith Evans the de- 
 fendant had agreed to acquire a certain property at Garthgell in 
 Merioneth, with a view to mining goM, and that the lease was made 
 to the defendant who had worked the mine and wrongfully refused 
 to recognize the plaintiffs' interest. The defendant denied the part- 
 nership, and pleaded the statute of fratids. In reply the plaintiffs 
 set up acts which they alleged to be in part performance. 
 
 When the case was opened on behalf of the plaintiffs Mr. Justice 
 Farwell intimated that he would first deal with the question arising 
 under the statute. The plaintiffs' counsel desired to go into tlie evi- 
 dence before the question of law was determined, but the learned 
 judge declined to adopt that course; and at tlie conclusion of the 
 opening he decided against the plaintiffs on the ground that the 
 statute of frauds applied. He therefore dismissed the action with 
 costs. The plaintiffs appealed.^ 
 
 The Master of the Rolls (Lord Alverstone) said that the 
 learned Judge had decided this case upon a preliminary discussion 
 arising out of the opening of the learned counsel for the plaintiffs. 
 Inasmuch as he (the Master of the Rolls) thought that there were 
 
 'A nonsuit may be ordered for a material variance between the allegations 
 in the pleadings and the evidence. Heath v. Freeland, i M. & W. 543 (1836) ; 
 Waldron v. Hopper, 1 N. J. L. 339 (1795) ; Stone v. Knowlton, 3 Wend. 
 (N. Y.) 374 (1829); Cunningham v. 3'/iaz c?^_^PjL-St40i (1847) ; Beck v. 
 ferrara, 19 Mo. 30 (i8s3) : Jcnneson v. Ca mden'^& A R. Co.. 5 Clark(Pa.') 
 409 (1856); Zeig V. Ort, 3 Chand. (Wis.) 26 (1850); Hereford~v7Lake, 
 15 La. Ann. 693 (i860); Flanagan v. Wilmington, 4 Houst. (Del.) 548 
 (1873) ; Johnson v. Moss, 45 Cal. 515 (1873) ; Boone v. Stover, 66 Mo. 430 
 (1877) ; Waldhier v. Hannibal & S. J. R. Co., 71 Mo. 514 (1880) ; Hnggins 
 V. Watford, 38 S. Car. 504, 17 S. E. 363 '1892) ; Elmore v. Elmore, 114 Cal. 
 516, 46 Pac. 458 (1896) ; Morton V. Dennis 5 Pa. Dist. 342 ( 1896). But an 
 opportunity to amend is generally allowed. ToJice Jury v.^Jahoiidean, 27 
 La. Ann. 224 (1875) ; Harkins v. Edwards, i Iowa 296 (1855) ; Richardson 
 V. Carbon Hill Co., 6 Wash. 52, 32 Pac. 1012, 20 L. R. A. 338 (1893) ; 
 Little field v. Maine Cent. R. Co., 104 Maine 126, 71 Atl. 657 (1908), subject 
 to the defendant's right to a continuance if surprised. Bell v. Rowland, 
 9 Iowa 281 (1859). 
 
 'The statement of facts is abridged.
 
 4C6 TRIAL 
 
 not suftkient materials before the court to enable it to determine the 
 case and that there must be a further inquiry, he Avould, in accord- 
 ance with the usual practice, abstain from saying anything upon the 
 questions wliich had been raised since it might embarrass the parties 
 upon the further inquiry. He would only say this, that, there being 
 here three questions to be determined, viz., as to what the agreement 
 was, whether there had been part performance of it, and what were 
 tlie rights of the plaintiffs and the defendant — he did not think that 
 the court could deal with those questions without hearing the evi- 
 dence. He would have had more hesitation in adopting this course 
 but for the decision of the Court of Appeal in Fletcher v. London 
 and North-Western Ralhvay Company, (1892) i Q. B. 122; and hi;; 
 hesitation arose from the fact that in his own personal experience 
 he had known many cases in which the plaintiff had been nonsuited. 
 But he thought that it would not conduce to expedition if a prelim- 
 inary judgnient was to be given upon an assumed state of facts in a 
 case where there was any dispute as to the real facts, and in all cases 
 there ought to be tlie consent of the plaintiffs' counsel to that pro- 
 cedure. It was not possible to say in this case that there had been 
 any such consent, and it was for that reason that he was pressed 
 with the decision of the Court of Appeal in Fletcher v. London and 
 North-Western Railzvay Company. In that case the court laid it 
 down broadly that, except by the consent of the plaintiff's counsel, a 
 plaintiff ought not to be nonsuited without the evidence being heard. 
 Where that consent was given it might fairly be assumed that the 
 plaintiff" was satisfied with the facts as stated in the opening. This 
 case must therefore be remitted for trial. 
 
 Lord Justice Rigby agreed. He was not sorry to be bound by the 
 rule laid down in Fletcher v. London and North-JVestern Raihvay 
 Company. In his opinion, as a general rule, the time that w^as wasted 
 in discussions whether the witnesses should be called and the almost 
 inevitable disputes that arose when the evidence had not been given, 
 more than counterbalanced any advantage to be gained by deciding 
 a case at the trial upon a preliminary point of law. 
 
 Lord Justice Collins said that Fletcher v. London and North- 
 western Railway Company came as somewhat of a surprise to the 
 profession, but it was a decision of the Court of Appeal and their 
 Lordships were bound by it. Speaking for himself, where a case was 
 tried before a judge without a jury and the counsel for the plaintiff 
 had, as he might be trusted to do, stated his case up to the very high- 
 water mark of what he was able to prove and the judge was against 
 him, he thought it would be a w^aste of public time to hear the evi- 
 dence. It was, however, improbable that counsel would often insist 
 upon the evidence being heard when the result must be the same as 
 upon his opening statement. He regretted the delay which would re- 
 sult in this case.'* 
 
 *Accord: Cross v. Rix, 29 Times Law Rep. 85 (1912) ; Fisher v. Ftshcr, 
 5 Wis. 472 (1856); Haley v. Western Transit Co., 76 Wis. 344. 45 N. \V. 
 16 (1890) ; Wheeler v. Oregon R. &c. Co., 16 Idaho 375. 102 Pac. 347 (i909~> ; 
 Pietsch V. Pietsch, 245 111. 454, 92 N. E. 325, 29 L. R. A. N. S. 218 and note 
 rigio). See also Barlo v. Detroit Iron & Steel Co., IS5 Mich. 94, 118 N. W.
 
 HOPKINS v. CLARK 407 
 
 HENRY C HOPKINS v. JAMES F. A. CLARK ET AL. 
 Court of Appeals of New York, 1899. 
 
 158 N. y. 299= 
 
 Bartlett, J. : The defendants are Boston stockbrokers and the 
 plaintiff is their customer, residing in Philadelphia. 
 
 The transactions involved in this suit took place in February, 
 1893. The defendants, on the 17th of February, 1893, purchased for 
 the account of plaintiff $10,000 par value Reading railroad third 
 mortgage bonds at forty-two. At the time this purchase was made 
 plaintiff had an open account with tlie defendants, showing a balance 
 due him of $2,737.41. This action was brought to recover that bal- 
 ance, ignoring the purchase of the Reading bonds, on the theory that 
 it was unauthorized and duly repudiated. 
 
 The action is defended on two grounds : First, that Campbell, 3 
 member of the defendants' firm, was given discretionary authority 
 by plaintiff to make such purchases on his account as he (Campbell) 
 thought would be profitable ; second, that the Reading bond purchase 
 was subsequently ratified by plaintiff. 
 
 There were but two witnesses sv/orn, plaintiff in his own behalf 
 and defendant Campbell for the defense. 
 
 The proofs were supplemented by a number of letters that passed 
 between the parties about the time of this transaction. The conflict 
 in the evidence was unusually sharp, and the case was submitted to 
 the jury, who found for the plaintiff. 
 
 The first point virged by appellants on this appeal is that the evi- 
 dence does not support or tend to support the verdict on which the 
 judgment was entered. 
 
 The course of the trial was this: At the end of the plaintiffs' 
 case the defendants moved for a dismissal of the complaint. The 
 court denied the motion and the defendants excepted. 
 
 738 (1908); Bastian v. Philadelphia, 180 Pa. 227, 36 j \tl. 746 (1897); 
 Walker v. Supple, 54 Ga. 178 (1875), and compare ^kelTon v. Schacht, 22 
 Cal. App. 144, 133 Pac. 504 (1913). In a number of jurisdictions the right 
 of the court to direct a verdict or nonsuit upon the facts stated by counsel 
 is well established. Oscanyan v. Arms Co., 103 U. S. 261, 26 L. ed. 539 ( 1880) 
 Lindlcy v. Atchison, T. & S. F. R. Co., 47 Kans. 432, 28 Pac. 201 (1891) 
 Butler V. National Home, 144 U. S. 64, 36 L. ed. 346, 12 Sup. Ct. 581 (1892) 
 Pratt V. Cotnvay, 148 Mo. 291, 49 S. W. 1028, 71 Am. St. 602 (1898) ; United 
 States v. Dietrich, 126 Fed. 676 (1904) ; Brashcar v. Rabenstein, yi Kans. 
 455, 80 Pac. 950 (1905) ; Miner v. Hopkinton, yz N. H. 232, 60 Atl. 433 (1905) ; 
 Broivn v. District of Columbia, 29 App. D. C. 273 (1907) ; Kelly v. Bergen 
 Comity Gas Co., 74 N. J. L. 604, 67 Atl. 21 (1906) ; Hey v. Prime, 197 Mass. 
 474, 84 N. E. 141 (1908) ; Gross v. Bennington, 52 Wash. 417, 100 Pac. 846 
 (1909) ; D'Aloia v. JJnione Fratcllauza, 84 N. J. L.' 683, 87 Atl. 472 (1913). 
 
 A motion made at the commencement of a trial to dismiss a complaint 
 on the ground that it does not state facts sufficient to constitute a cause 
 of action is practically a demurrer to the complaint on that ground, and 
 it can not be sustained unless it appears that admitting all of the facts 
 alleged, no cause of action whatever is stated. Abbott v. Easton, 195 N. Y. 
 372, 88 N. E. 572 (1909). 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted.
 
 -H^ TKIAL 
 
 Tlie defense thou ]nit in their evidence and the case was sub- 
 mitted to the jury, without a motion of any kind being made on be- 
 lialf of the defendants. 
 
 It is now insisted that the question of kiw that there is no evi- 
 dence to support the verdict is before the court by reason of defend- 
 ants' excciUion to the denial of the motion to dismiss at the end of 
 phiintilT's case. 
 
 ^\'e are of opinion that this exception is not available here for the 
 reason that the motion was not renewed at the close of the whole 
 evidence. 
 
 The learned counsel for appellants insists that this is not the rule 
 of practice and cites a number of cases to sustain his contention. 
 The following are the cases cited: 
 
 Erust \. Hudson Rkrr R. R. Co., 24 How. Pr. (N. Y.) 97. This 
 case is not in point, as it presented a single exception upon the re- 
 fusal of the circuit judge to nonsuit upon the whole evidence after 
 the testimony had been given by the defendant and both parties had 
 rested. 
 
 Tiffany v. St. John, 65 N. Y. 314, Here the motion was made and 
 denied at close of plaintiff's case, and Mr. Commissioner Dwight, in 
 the Commission of Appeals, said that the propriety of this ruling 
 could be regarded in the light of the additional evidence taken after 
 the denial of the motion. This same rule is laid down in other cases 
 cited by appellants. Painton v. Northern Central Railway Co., 83 
 X. Y. 7; Commercial Bank of Keokuk v. Pfciffer, 108 N. Y. 242, 
 252; McCotter v. Hooker, 8 N. Y. 497, 503; Jackson v. Leggett, 7 
 Wend. (N. Y.) 377. These cases go to the extent of holding that 
 the defendant could not be heard to insist on appeal to tliis court 
 that his motion to dismiss at the end of plaintiff's case should have 
 been granted, if the defendant's proofs had in any way supplied the 
 defects of plaintiff's case.^ 
 
 Other cases are cited by appellants, but are not in point, as in all 
 of them defendant's motion to dismiss was renewed at tlie end of 
 the case. Schenectady & Saratoga Plankroad Co. \. Thatcher, 11 
 N. Y. 102, 105 ; Byrnes v. N. Y., L. E. and IV. R. R. Co., 113 N. Y. 
 251, 257; Potter V. A^. Y. C. and H. R.R. R. Co., 136 N. Y. 77, 80. 
 In none of these cases was the point distinctly raised as to the effect 
 of defendant going to the jury after his own case is closed without 
 renewing his motion to dismiss made at the end of plaintiff's evi- 
 dence. 
 
 It is doubtless true that this state of the authorities has proved 
 misleading and tended to create some confusion in the minds of the 
 profession as to the correct practice. It is also true that it may be 
 inferred from some of the cases cited that if defendant's proofs had 
 not supplied the defects of plaintiff's case, the exception at close of 
 
 "Accord: Weil v. Ncvitt, 18 Colo. 10, 31 Pac. 487 (1892); Ingalls v. 
 Olberg, 70 Minn. 102, 72 N. VV. 841 (1897) ; Hicks v. Southern Ry., 6,3 S. Car. 
 559, 41 S. E. 753 (1901) Van Cott v. North Jersey St. R. Co., 72 N. J. L. 
 229, 62 Atl. 407 (1905) ; Trickey v. Clark, 50 Ore. 516, 93 Pac. 457 (1908) ; 
 Lou-e V. San Francisco & N. IV. R. Co., 154 Cal. 573, 98 Pac. 678 (1908).
 
 HOPKINS v. CLARK 409 
 
 plaintifiPs evidence would be available here. It, therefore, is desira- 
 ble that the practice on this point should be settled. 
 
 The rule laid down by the Supreme Court of the United States 
 seems the proper one, to the effect that when a defendant, after tlie 
 close of the plaintiff's evidence, moves to dismiss, and, the m.otion 
 being denied, excepts thereto, and then proceeds with his case, and 
 puts in evidence on his part, he thereby waives tlie exception, and 
 the overruling of the motion to dismiss can not be assigned as error. 
 Union Pacific Railway Co. V. Daniels, 152 U. S. 684; Columbia and 
 Piiget Sound R. R. Co. v. Hawthorne, 144 U. S. 202, 206, and cases 
 cited.'' 
 
 This rule is founded upon reason and convenience. In a court 
 whose jurisdiction is limited to the review of questions of law, there 
 ought not to be, as a general rule, any necessity to examine the record 
 at large in order to determine whether an exception is available. The 
 case at bar illustrates this point. It is the contention of appellants 
 tliat they are entitled to the benefit of the exceptions taken to the 
 denial of the motion to dismiss at the close of plaintiff's case, as 
 that case was not strengthened, but was clearly weakened by tlie 
 defendants* evidence. In other words, this court is to be asked in all 
 cases to examine the evidence of the defendant, no matter how 
 lengthy it may be, to determine whether tlie defendant shall have 
 the benefit of an exception concerning which all doubt would be re- 
 moved by his renewing tlie motion to dismiss at the close of the 
 whole evidence. 
 
 In holding in the case at bar that we can not consider the excep- 
 tion taken at the end of plaintiff's case and thus settling the rule of 
 practice, we do not deprive the appellants of any valuable right, as 
 this brief record very clearly discloses, if we were called upon to 
 examine it, questions that were properly submitted to the jury. 
 
 The learned counsel for the respondent has cited us to a number 
 of cases where no motion to dismiss was made by defendant at any 
 time during the trial. The rule in such cases has long been settled 
 that the defendant by failing to move concedes there was a question 
 for the jury. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 631 ; 
 Schwinger v. Raymond, 105 N. Y. 648, 649; Hazvver v. Bell, 141 
 N. Y. 140, 143 ; Pollock v, Pennsylvania Iron JJ'orks Co., 157 N. Y. 
 699; Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437. 
 
 It follows that the verdict of the jury must stand and the judg- 
 ment entered thereon should be affirmed, unless there are exceptions 
 disclosed by the record that entitle the defendants to a reversal.^ 
 
 Judgment affirmed. 
 
 'Accord: Runkle V. Burnham, 153 U. S. 216, 38 L. ed. 694, 14 Sup. Ct. 
 837 (1894) ; Sigafus v. Porter, 179 U. S. 116, 45 L. ed. 113, 21 Sup. Ct. 34 
 (1900) ; Northwestern Steamship Co. v. Griggs, 146 Fed. 472 (1906) ; Carr 
 V. Manahan, 44 Vt. 246 (1872) ; Hurley v. O'Sidlivan, 137 Mass. 86 (1884) ; 
 Joliet A. & N. R. Co. v. Velie, 140 111 59, 29 N. E. 706 (1892); Chicago 
 & G. W. R. Co. V. Wedel, 144 111. 9, 32 N. E. 547 (1892) ; Lvnch v. Johnson, 
 109 Mich. 640, 67 N. W. 908 (1896) ; Field v. Tliornell, 106 Iowa 7, 75 N. \V. 
 685, 68 Am. Rep. 281 (1898). 
 
 ^Accord: Wangner v. Grimm, 169 N. Y. 421 (1902); Sigua Iron Co. 
 V. Brown, 171 N. Y. 488, 64 N. E. 194 (1902) ; Bopp v. A^. Y. El. V. T. Co.,
 
 410 TKIAL 
 
 SECTION 7. DIRECTION OF VERDICT. 
 
 PLEASANTS v. FANT. 
 
 Supreme Court of the United States, 1874. 
 
 89 U. S. 116. 
 
 X 
 
 Error to the circuit court for the District of Maryland. R. & H. 
 Pleasants sued Fant in the court below and tlie only question was 
 whetlier tlie defendant was a partner in the firm of Keene & Co. 
 Testimony was offered to prove that Fant had procured for Keene a 
 loan of ;? 10,000 from a bank of which he was president and that 
 Keene had voluntarily promised to give Fant a part of the profits 
 jrom the transaction, but had mentioned no particular portion of the 
 profits. i\t the conclusion of the testimony the court said to tlie jury : 
 
 "There is no evidence in this cause from which the jury can find 
 that the defendant had such an interest in the purchase and sale of 
 the cotton by Keene & Co. as will make him, the defendant, a partner 
 as to third persons, and the jury will, therefore, find their verdict 
 for defendant." 
 
 Verdict and judgment for defendant. Plaintiff brings error." 
 
 ]\Iiller, J. : We are pressed with the proposition that it was for 
 the jury to decide this ciucslion, because the testimony received and 
 offered had some tendency to establish a participation in the profits, 
 and the question of liability under such circimi stances should have 
 been submitted to them, with such declarations of what constitutes a 
 partnership as would enable them to decide correctly. 
 
 No doubt there are decisions to be found which go a long way to 
 hold that if there is the slightest tendency in any part of the evidence 
 to support plaintiff's case it must be submitted to the jury, and in the 
 present case, if the court had so submitted it, with proper instruc- 
 tions, it would be difficult to say that it would have been an error of 
 which the defendant could have complained here. 
 
 But, as was said by this court in the case of the Improvement 
 Company v. Munson,^^ recent decisions of high authority have estab- 
 lished a more reasonable rule, that in every case, before the evidence 
 is left to the jury, there is a preliminary question for the judge, not 
 whether there is literally no evidence, but whether there is any upon 
 which a jury can properly proceed to find a verdict for the party 
 
 177 I^'- Y. 33 (1903) ; Spencer v. State, 187 N. Y. 484, 80 N. E. 375 (1907) ; 
 Seeman v. Levine, 205 N. Y. 514, 99 N. E. 158 (1912) ; Barrow v. B. R. Lewis 
 Lumber Co., 14 Idaho 698, 95 Pac. 682 (1908) ; Bordeaux v. Atlantic Coast 
 Line R. Co., 150 N. Car. 528, 64 S. E. 439 (1909). Compare Van Ness v. 
 North Jersey St. R. Co., 75 X. J. L. 273, 67 Atl. 1027 (1907) ; Dryden v. 
 Pelton-Armstrong Co., 53 Ore. 418, loi Pac. 190 (1909); Northern Pac. 
 R. Co. V. Spencer, 56 Ore. 250, 108 Pac. 180 (1910). 
 
 •The statement of facts is abridged and part of the opinion of the court 
 omitted. 
 
 '"81 U. S. 442, 21 L. ed. 867 (1871).
 
 PLEASANTS V. FANT 4II 
 
 producing it, upon v;hom the onus of proof is imposed. The English 
 cases there cited fully sustain the proposition,^^ and the decisions of 
 this court have generally been to the same effects- 
 It is the duty of a court in its relation to the jury to protect 
 parties from unjust verdicts arising from ignorance of the rules of 
 law and of evidence, from impulse of passion or prejudice, or from 
 any other violation of his lawful rights in the conduct of a trial. 
 This is done by making plain to them the issues they are to try, by 
 admitting only such evidence as is proper in these issues, and reject- 
 ing all else ; by instructing them in the rules of law by which that evi- 
 dence is to be examined and applied, and finally, when necessary, by 
 setting aside a verdict which is unsupported by evidence or contrary 
 to law. 
 
 In the discharge of this duty it is the province of the court, either 
 before or after the verdict, to decide whether the plaintiff has given 
 evidence sufficient to support or justify a verdict in his favor. Not 
 whether on all the evidence the preponderating weight is in his favor, 
 that is the business of the jury, but conceding to all the evidence 
 offered the greatest probative force which according to the law of 
 evidence it is fairly entitled to, is it sufficient to justify a verdict? 
 If it does not, then it is the duty of the court after a verdict to set it 
 aside and grant a new trial. IMust the court go through the idle cere- 
 mony in such a case of submitting to the jury the testimony on which 
 plaintiff relies, when it is clear to the judicial mind that if the jury 
 should find a verdict in favor of plaintiff that verdict would be set 
 aside and a new trial had ? Such a proposition is absurd, and accord- 
 ingly we hold the true principle to be that if tlie court is satisfied 
 that, conceding all the inferences which the jury could justifiably 
 draw from the testimony, the evidence is insufficient to warrant a 
 verdict for the plaintiff, the court should say so to the jury. In such 
 case the party can submit to a nonsuit and try his case again, if he 
 can strengthen it, except where the local law forbids a nonsuit at 
 
 ^Jewell V. Parr, 13 C. B. 909 (1853) ; Toomey v. London, Brighton & 
 South Coast R. Co., 3 C. B, N. S, 146 (1857) ; Ryder v. IVombwell, L. R. 4 
 Exch. 31 (1868), In the last case it is said by Willes, J.: "It was formerly 
 considered necessary in all cases to leave the question to the jury, if there 
 was any evidence, even a scintilla, in support of the case, but it is now 
 settled that the question for the judge (subject of course to review) is, not 
 whether there is literally no evidence, but whether there is none that_ ought 
 reasonably to satisfy the jury.that the fact sought to be proved is established." 
 See further, Thompson on Trials, vol. II, p. 1595 ; 6 Encyclopaedia of Pleading 
 and Practice, 667 ; 38 Cyc. 1563. 
 
 ^Parks V. Ross, 11 How. (U. S.) 362, 13 L. ed. 730 (1850) ; Schuchardt 
 V. Aliens, I Wall. (U. S.) 359, 17 L. ed. 64:2 (1863); Commissioners of 
 Marion County v. Clark, 94 U. S. 278, 24 L. ed. 59 (1876) ; Hathaway v. East 
 Tennessee R. Co., 29 Fed. 489 (1886); Scho field v. Chicago, &c., R. Co., 
 114 U. S. 615, 29 L. ed. 224, 5 Sup. Ct. 1125 (1884); Treat Mfg. Co. v. 
 Standard Steel &c. Co., 157 U. S. 674, 39 L. ed. 853, I5 Sup. Ct. 718 (1894) ; 
 Delaware L. & W. R. Co. v. Converse, 139 U. S. 469, 35 L. ed. 213, il Sup. 
 Ct. 569 (1890) ; Hepner v. United States, 213 U. S. 103, 53 L. ed. 720 (1909) ; 
 Delk V. St. Louis, &c., R. Co., 220 U. S. 580, 55 L. ed. 590 (1910).
 
 .|IJ TRIAL 
 
 that staple of tlic trial, or if he lias done his best he must abide the 
 jiulgiiicnt of the court, subject to the rij^hts of review, whether he 
 has made such a case as ous^ht to be submitted to the jury; such a 
 case as a jury mic^lit justifiably find for him a verdict. 
 Judgiuent aflirmed.^^ 
 
 ^IcDONALD V. IMETROrOLITAN STREET RAILWAY CO. 
 
 Court of Appeals of New York, 1901. 
 167 A'. Y. 66.^' 
 
 ^Iartin, J.: This action was for personal injuries resulting in 
 'tlie death of tlie plaintiff's intestate, and was based upon the alleged 
 'negligence of tlie defendant. An appeal was allowed to tliis court 
 upon the ground of an existing conllict in the decisions of different 
 departments of the appellate division as to when a verdict may be 
 directed where there is an issue of fact, and because in this case an 
 erroneous principle was asserted which, if allowed to pass uncor- 
 rected, would be likely "to introduce confusion into the body of the 
 law." Sciolina v. Erie Preserving Co., 151 N. Y. 50. The court hav- 
 ing directed a verdict, the appellant is entitled to the most favorable 
 inferences deducible from the evidence, and all disputed facts are 
 to be treated as established in her favor. Ladd v. JEtna Ins. Co., 147 
 N. Y. 478, 482; Higgins V. Eagleton, 155 N. Y. 466; Ten Eyck v. 
 U'hitheck, 156 N. Y. 341, 349; Bank of Monongahela Valley v. 
 Weston, 159 N. Y. 201, 208. 
 
 It is believed, the testimony of the plaintiff's witnesses was suffi- 
 cient to justify the jury in finding the defendant negligent and the 
 plaintiff's intestate free from contributory negligence. The evidence 
 of the defendant was in many respects in direct conflict, and if 
 credited would have sustained a verdict in its favor. Whether the 
 defendant was negligent, tlie plaintiff's intestate free from contribu- 
 
 *'Accord: Bartclott v. International Bank, II9 111. 259, 9 N. E. 898 
 (1887) ; Hite v. Metropolitan St. Ky., 130 Mo. 132, 31 S. W. 262^ X2 S. W. Z3, 
 51 Am. St. 555 (1895) ; Saltier v. Chicago R. I. & P. R. Co. 71 Nebr. 213, 
 98 N. W. 663 (1904) ; West fall v. Wait, 165 Ind. 35^ jz N. E. 1089 (1Q05) ; 
 J'andergrift Const. Co. V. Camden, &c., R. Co., 74 N. J. L. 669, 65 Atl. 986 
 ( 1906; ; Cobb V. Glenn Boom Lumber Co., 57 W. Va. 49, 49 S. E. 1005, no Am. 
 St. 734 (1905) ; Walker v. Warner, 31 App. (D. C.) 76 (1908) ; Krenz v. Lee, 
 104 Minn. 455, Ii6 N. W. 832 (1908) ; Hinckley v. Danbury, 81 Conn. 241, 70 
 Atl. 590 (1908) ; Weston v. Livezey, 45 Colo. 142, 100 Pac. 404 (1909) ; Well- 
 ington V. Corinna, 104 Alaine 252, 71 Atl. 889 (1908). In the same manner as for 
 the defendant, a verdict may be directed for a plaintiflf who has fully made out 
 his case, where the defendant's evidence does not warrant a finding in his fa- 
 vor. Tilly v. Cox, 119 Ga. 867, 47 S. E. 219 (1904) ; Rochester Mach. Tool 
 Works V. Weiss, 100 Wis. 545, 84 N. W. 866 C1901) ; Gilchrist v. Brown, 165 
 Pa. St. 27s (1895) ; Friedline v. State, 93 Ind. 366 (1883) ; Harding v. Roman 
 Catholic Church, 113 App. Div. 685, 99 N. Y. S. 945 (1906) ; Xjt)ldstein v. 
 D'Arcy, 201 Mass, 312, 87 N. E. 584 (1909). 
 
 "The arguments of counsel and part of the ©pinion of the court are 
 omitted.
 
 m'donald v. metropolitan ST. R. CO. 413 
 
 tory negligence, and the amount of damages were submitted to the 
 jury. It, however, having agreed upon a general verdict and failed 
 to answer the questions submitted, the trial judge withdrew them and 
 directed a verdict for the defendant. Upon the verdict so directed a 
 judgment was entered. Subsequently an appeal was taken to the 
 appellate division, where it was affirmed, and the plaintiff has now 
 appealed to this court. 
 
 Although there was a direct and somewhat severe conflict in tlie 
 evidence, the questions of negligence and contributory negligence 
 were clearl}^ of fact, and were for the jury and not for the court 
 unless the right of trial by jury is to be partially, if not wholly 
 abolished. It was assumed below tliat the plaintiff's evidence estab- 
 lished a case which, undisputed, was sufficient to warrant a verdict 
 In her favor. But the court said tliat at the close of the defendant's 
 evidence the plaintiff's case had been so far overcome that a verdict 
 in her favor would have been set aside as against the weight of evi- 
 dence. Upon that alleged condition of the proof. It held tliat the 
 trial court might have properly submitted the case to the jury if it 
 saw fit, but that It was not required to as the verdict might have been 
 thus set aside. The practical result of that decision, if sustained, is 
 in every close case to vest in the trial court authority to determine 
 questions of fact, although the parties have a right to a jury trial, if 
 it tliinks tliat the weight of evidence is in favor of one and it directs 
 a verdict in his favor. 
 
 There have been statements by courts which seem to lend some 
 justification to that theory, but we think no such broad principle 
 has been Intended and tliat no such rule can be maintained either 
 upon principle or authority. The rule that a verdict may be directed 
 whenever the proof Is such that a decision to the contrary might 
 be set aside as against the weight of evidence would be both uncer- 
 tain and delusive. There is no standard by which to determine when 
 a verdict may be tlius set aside. It depends upon the discretion of the 
 court. The result of setting aside a verdict and tlie result of directing 
 one are widely different and should not be controlled by the same 
 conditions and circumstances. In one case there Is a re-trial. In the 
 other the judgment is final. One rests in discretion ; tlie other upon 
 legal right. One involves a mere matter of remedy or procedure. 
 The other determines substantive and substantial rights. Such a 
 rule would have no just principle upon which to rest. 
 
 While in many cases, even where tlie evidence is sufficient to 
 sustain it, a verdict may be properly set aside and a new trial ordered, 
 yet, that In every such case the trial court may, whenever it sees 
 fit, direct a verdict and thus forever conclude the parties, has no basis 
 in the law, which confides to juries and not to courts the determina- 
 tion of the facts in this class of cases. 
 
 We think it can not be correctly said In any case where the right 
 of trial by jury exists and the evidence presents an actual Issue of 
 fact, that the court may properly direct a verdict. So long as a ques- 
 tion of fact exists, it is for the jury and not for the court. If the evi- 
 dence Is Insufficient, or if that which has been introduced Is con- 
 clusively answered, so that, as a matter of law, no question of credi-
 
 414 TRIAL 
 
 bility or issue of fact remain.-^, then the question being one of law, 
 it is the (lutv of the court to dcterniinc it. Cut \\hcnever a pkiintilf 
 has cstabUshcd facts or circumstances \vhich would justify a linding 
 in his favor, the right to have the issue of fact determined by a jury 
 continues, and the case must ultimately be submitted to it. 
 
 The credibility of Avitnesses, the effect and weight of conflicting 
 and contradictory testimony, are all questions of fact and not ques- 
 tions of law. If a court of review having power to examine tb.e facts 
 is dissatisfied with a verdict because against the weight or prepon- 
 derance of evidence, it may be set aside, but a new trial nuist be 
 granted before another jury so that the issue of fact may be ulti- 
 mately determined by the tribunal to which those questions are con- 
 fided. If tliere is no evidence to sustain an opposite verdict, a trial 
 court is justified in directing one, not because it would have author- 
 ity to set aside an opposite one, but because there was an actual 
 defect of proof, and, hence, as a matter of law, the party was not 
 entitled to recovery. . . . 
 
 \\'e are of the opinion that a plain issue of fact was presented 
 for tlie jury; that the court erred in directing a verdict; that the 
 judgment and order should be reversed and a new trial granted, with 
 costs to abide the event.^^ 
 
 Parker, C. J., Eartlett, Vann, Cullen and Werner, JJ., concur. 
 
 Gray, J., dissents. 
 
 "Accord: Mitchell v. Third Ave. R. Co., 62 App. Div. 371, 70 N. Y. S. 
 1 1 18 (1901) ; Scott V. Barker, 129 App. Div. 241, 113 N. Y. S. 693 (1908) ; 
 S eager v. Solvay Process Co., 129 App. Div. 813, 114 N. Y. S. 591 (1909) ; 
 Kircher v. Iron Clad Mfg. Co., 134 App. Div. 144, nS N. Y. S. 823 (1909) ; 
 Keller v. Halsey, 202 N. Y. 588, 95 N. E. 634 (1911) ; Little Rock, &c., R. 
 Co. V. Henson, 39 Ark. 413, (1882) ; Ailee v. S. Car. Railway Co., 21 S. Car. 
 c;50 (1884); Conadeau v. American Ace. Co., 95 Ky. 280 (1894); Clark 
 V. Stitt, 12 Ohio C. C. 759 (1894); Leiuis v. Prien, 98 Wis. 87, 7;^ N. W. 
 654 (1897); Devli n V Beac on_LirMJLcU-l^. Pa^-5&L_48. Atl. 482 (1901) ; 
 Heh v. ConsoJida t_cd_G_as (To^ oi Pa. 4^13 , jOj^tl. 994, 88 Am. St. 819 (1902) ; 
 VinariV. Supreme Council, 210 Pa. 456, 00 AtT 10 (1904)- 
 
 In Denny v. WiUiajnsTBf W^ss^ I C1S62) it is said: "The practical line 
 of dhtinction is, that if the evidence is such that the court would set aside 
 any number of verdicts rendered upon it, toties quotics, then the cause 
 should be taken from the jun,-, by instructing them to find a verdict for 
 the defendant. On the other hand, if the evidence is such that, though one 
 lOr two verdicts rendered upon it would be set aside on motion, yet a second 
 lor third verdict would be suffered to stand, the cause should not be taken 
 •from the jury, but should be submitted to them under instructions." Accord : 
 Crosby V. Wells, 73 N. J. L. 790, 67 Atl. 295 ('1906), see l^n-n'nj-d Fxpi-^sf (:n_ 
 v. V.'iie. 6-1 Pa St. 201 (1870) . "When the determination of the issue depends 
 only on the existence of certain facts, and these are not in question, the 
 decision rests with the court. But when it depends not merely on the existence 
 of facts, but on conclusions arising from them respecting which there is 
 no fixed standard of judgment, it is for the jury, even where there is no 
 dispute as to the facts. While facts may be admitted, the conclusions to be 
 drawn from them may remain a matter of controversy. To justify a verdict 
 by direction, two conditions must concur: (i) The controlling facts must be 
 established beyond doubt; (2) their effect, in the conclusions to which they 
 lead, must be so clear and unquestionable that it may be judicially declared." 
 Mcnner v. Delaware & H. Canal Co., 7 Pa. Super. Ct. 135 (1898).
 
 EMPIRE STATE CATTLE CO. V. ATCHISON, &C. R. CO. 415 
 
 X^EMPIRE STATE CATTLE COMPANY v. ATCHISON, 
 r TOPEKA AND SANTA FE RAILWAY COMPANY. 
 
 Supreme Court of the United States, 1907. 
 210 U. S. I." 
 
 White, J. : With the object of saving them from destruction by 
 the flood which engulfed portions of Kansas City on May 31 and the 
 first week of June, 1903, more than three thousand head of cattle 
 belonging to the petitioners, which were in the Kansas City stock 
 yards, were driven and crowded upon certain overhead viaducts in 
 those yards. For about seven days, until the subsidence of the flood, 
 they were there detained and could not be properly fed and watered. 
 Many of them died and the remainder were greatly lessened in 
 value. These actions were brought by the petitioners to recover for 
 the loss so sustained upon the ground that the cattle were in the 
 control of the defendant railway company as a common carrier, and 
 that the loss sustained was occasioned by its negligence. 
 
 The railway company defended in each case upon the ground 
 that before the loss happened it had delivered the cattle to a con- 
 necting carrier, but that if the cattle were in its custody it was with- 
 out fault, and the damage was solely the result of an act of God, 
 that is, the flood above referred to. 
 
 As the cases depended upon substantially similar facts and in- 
 volved identical questions of law, they were tried together, and at 
 the close of the evidence the trial court denied a peremptory instruc- 
 tion asked on behalf of the plaintiffs, and gave one asked on behalf 
 of the railway company. 135 Fed. 135. 
 
 While there was some contention in the argument as to what 
 took place concerning the requests for peremptory instructions, we 
 think the bill of exceptions establishes that at the close of the evi- 
 dence the plaintiffs requested a peremptory instruction in their .fa- 
 vor, and on its being refused duly excepted and asked a number of 
 special instructions, which were each in turn refused, and exceptions 
 were separately reserved, and the court then granted a request for a 
 peremptory instruction in favor of the railway company, to which 
 the plaintiffs excepted. 
 
 On the writs of error which were prosecuted from the Circuit 
 Court of Appeals for the Eighth Circuit that court affirmed the 
 judgment on the ground that as both parties had asked a peremptory 
 instruction the facts were thereby submitted to the trial judge, and 
 hence the only inquiry open was whether any evidence had been in- 
 troduced which tended to support the inferences of fact drawn by 
 the trial judge from the evidence. One of the members of the Cir- 
 cuit Court of Appeals (Circuit Judge Sandborn) did not concur in 
 
 "Only so much o£ the opinion of the court as relates to peremptory 
 instructions is printed. On a review of the evidence the judgment of the 
 court below was affirmed.
 
 4l6 TRIAL 
 
 the opinion of the court, because he deemed that as the request for 
 peremptory instruction made on behalf of plalntilTs ^vas followed by 
 special requests seeking to have the jury determine the facts, the 
 asking for a peremptory instruction did not amount to a submission 
 of the facts to the court so as to exclude the right to have the case 
 go to the jury in accordance with the subsecpicnt special requests. 
 He, neverlhclcss, concurred in the judgment of affirmance, because, 
 alter examining the entire case, he was of oi)inion that prejudicial 
 error had not been committed, as the evidence was insufficient to 
 have justified the sul)mlssion of the issues to the jury. 147 Fed. 457. 
 The cases are here because of the allowance of writs of certiorari. 
 They present similar questions of fact and law, were argued together 
 and are, therefore, embraced in one opinion. The scope of the in- 
 quiry before us needs, at the outset, to be accurately fixed. To do so 
 requires us to consider the question which gave rise to a division of 
 opinion in the Circuit Court of Appeals. If it be that the request by 
 both parties for a peremptory instruction is to be treated as a submis- 
 sion of the cause to the court, despite the fact that the plaintiffs 
 asked special instructions upon the effect of the evidence then, as 
 said in Beuttell v. Magone, 157 U. S. 154, "the facts having been 
 tluis submitted to the court, w^e are limited in reviewing its action, 
 to a consideration of the correctness of tlie finding on the law and 
 must affirm if there be any evidence in support thereof." If, on the 
 other hand, it be that, although the plaintiffs had requested a peremp- 
 tory instruction, the right to go to the jury was not waived in view 
 of the other requested instructions, then our inquiry has a wider 
 scope, tliat is, extends to determining whether the special instruc- 
 tions asked w- ere rightly refused, either because of their inherent un- 
 soundness or because, in any event, the evidence was not such as 
 would have justified the court in submitting the case to the jury. It 
 was settled in Beuttell v. Magons, 157 U. S. 154, that where both par- 
 ties requested a peremptory instruction and do nothing more, they 
 thereby assume the facts to be undisputed and in effect submit to the 
 trial judge the determination of the inferences proper to be drawn 
 from them. But nothing in that ruling sustains the view that a party 
 may not request a peremptory instruction, and yet, upon the refusal 
 of the court to give it, insist by appropriate requests, upon the sub- 
 mission of the case to tlie jury, where the evidence is conflicting or 
 the inferences to be drawn from the testimony are divergent. To 
 hold the contrary would unduly extend the doctrine of Beuttell v. 
 Magone, by causing it to embrace a case not within the ruling in that 
 case made. The distinction between a case like the one before us 
 and that which was under consideration in Beuttell v. Magone has 
 been pointed out in several recent decisions of Circuit Court of Ap- 
 peals. It was accurately noted in an opinion delivered by Circuit 
 Judge Severens, speaking for the Circuit Court of Appeals for the 
 Sixth Circuit, in Minahan v. Grand Trunk Ry. Co., 138 Fed. 37, 41, 
 and was also luclrlly stated in the concurring opinion of .Shelby, 
 Circuit Judge, in McCormack v. National City Bank of Waco, 142 
 Fed. 132, where, referring to Beuttell v. Magone, he said (p. 133) :
 
 EMPIRE STATE CATTLE CO. V. ATCHISON, &C. R. CO. 417 
 
 "A party may believe that a certain fact which is proved without 
 conflict or dispute entitles him to a verdict. But there may be evi- 
 dence of other, but controverted facts, which, if proved to the satis- 
 faction of the jury, entitles him to a verdict, regardless of the evi- 
 dence on which he relies in the first place. It can not be that the 
 practice would not permit him to ask for peremptory instructions, 
 and, if the court refuses, to then ask for instructions submitting the 
 other question to the jury. And if he has the right to do this, no re- 
 quest 'for instructions that his opponent may ask can deprive him of 
 the right. There is nothing in Beuttell v. Magone, 157 U. S. 154, that 
 conflicts with this view when the announcement of the court is 
 applied to the facts of the case as stated in the opinion. 
 
 "In New York there are many cases showing conformity to the 
 practice announced in Beuttell v. Magone, but they clearly recognize 
 the right of a party who has asked for peremptory instructions to go 
 to the jury on controverted questions of fact if he asks the court to 
 submit such questions to the jury. Kirts v. Peck, 113 N. Y. 226; 
 Slitter V. Vanderveer, 122 N. Y. 652. 
 
 "The fact that each party asks for a peremptory Instruction to 
 find in his favor does not submit the issues of fact to the court so as 
 to deprive the party of the right to ask other instructions, and to ex- 
 cept to the refusal to give them, nor does it deprive him of the right 
 to have questions of fact submitted to the jury if issues are joined 
 on which conflicting evidence has been offered. Minahan v. G. T. W. 
 Ry. Co., 138 Fed. 37." 
 
 From this it follows that the action of the trial court in giving 
 the peremptory Instruction to return a verdict for the railway com- 
 pany can not be sustained merely because of the request made by 
 both parties for a peremptory instruction In view of the special re- 
 quests asked on behalf of the plaintiffs. The correctness, therefore, 
 of the action of the court In giving the peremptory instruction de- 
 pends, not upon the mere requests which were made on that subject, 
 but upon whether the state of the proof was such as to have author- 
 ized the court. In the exercise of a sound discretion, to decline to 
 submit the cause to the jury.^^ 
 
 ^'Compare Thompson v. Simpson, 128 N. Y. 270, 28 N. E. 627 (1891) ; 
 Westervelt v. Phelps, 171 N. Y. 212, 63 N. E. 962 (1902) ; First Nat. Bank 
 V. Hayes, 64 Ohio St. 100, 59 N. E. 893 (1901) ; Lindquisf v. Northwestern 
 Port Huron Co., 22 S. Dak. 298, 117 N. W. 365 (1908) ; Fairbanks v. 
 Nichols, 135 App. Div. 298, 119 N. Y. S. 752 (1909) ; Saxton v. Perry, 47 
 Colo. 263, 107 Pac. 281 (1910); Mims v. Johnson, 8 Ga. App. 850, 70 S. E. 
 139 (1911) ; Bankers Surety Co. V. Miller, 105 Ark. 697, 150 S. W. 570 (1912) ; 
 Rice V. Bennett, 29 S. Dak. 341, 137 N. W. 359 (1912) ; Home Fire Ins. Co. 
 V. Wilson, 109 Ark. 324, 159 S. W. 11 13 (1913) ; United States v. Two Baskets, 
 20s Fed. 2>7 (1913); Krccck v. Supreme Lodge, 95 Nebr. 428, 145 N. W. 
 859 (1914) ; Fairbanks V. Austin, 96 Nebr. 137, 147 N. W. 126 (1914), with 
 Thompson V. Brcnnan, 104 Wis. 564, 80 N. W. 947 (1899) ; German Sav. 
 Bank V. Bates Addition Imp. Co., ill Iowa 432, 82 N. W. 1005 (1900) ; 
 Stauff V. Bingenheimer, 94 Minn. 309, 102 N. W. 694 (1905) ; Wolf v. Chicago 
 Sign Printing Co., 233 111. 501, 84 N. E. 614 (1908) ; Lonier v. Ann Arbor 
 Sav. Bank, 153 Mich. 253, 116 N. W. 1088 (1908); Osterholm v. Boston & 
 Montana Consol. Min. Co., 40 Mont. 508, 107 Pac. 499 (1909) ; Bank of 
 Commerce v. Broyles, 16 N. Mex. 414, 120 Pac. 670 (1910) reversed on 
 27 — Civ. Proc.
 
 4l8 TRIAL 
 
 YOUNG, ADMINISTRATRIX, v. CENTRAL RAILROAD OF 
 
 NEW JERSEY. 
 
 Supreme Court of the United States, 1914. 
 232 U. S. 602. 
 
 Memorandum opinion by direction of the court. By Mr. Chief 
 Justice White. 
 
 As administratrix of the estate of her deceased husband, the 
 plaintiff in error sued to recover for the loss occasioned by his death 
 alleged to have resulted from the negligence of the defendant rail- 
 road company. Over the objection of the defendant the case was 
 submitted by the trial court to the jury and from the judgment en- 
 tered on the verdict rendered against the railroad company, error 
 was by the company prosecuted from the Circuit Court of Appeals. 
 On tlie hearing that court concluding that the evidence did not 
 justify the submission of the case to the jury, reversed the judgment 
 and in passing upon a motion made by the railroad company in the 
 trial court, pursuant to the Pennsylvania practice for judgment in 
 its favor no7i obstante veredicto^^ it was held that the motion was well 
 taken and the case was remanded to the trial court not for a new 
 trial, but with directions to enter a judgment for the defendant. 200 
 Fed. 359. As the case as made by the pleadings depended not merely 
 upon diverse citizenship, but was expressly based on the Employers' 
 Liability Act, error was prosecuted from this court. 
 
 We shall not undertake to analyze the evidence or review the 
 grounds which led the court below to conclude that error was com- 
 mitted in submitting the case to the jury, because we think it is 
 adequate to say that after a careful examination of the record we 
 see no reasons for holding that the court below erred in so deciding. 
 As regards, however, the ruling on the motion for judgment non 
 obstante veredicto, it is apparent in view of the recent decision in 
 
 other grounds, 234 U. S. 64, 58 L. ed. 1214; King v. Cox, 126 Tenn. 553, 151 
 S. \V. 58 (1912); Virginia-Tennessee Hardware Co. v. Hodges, 126 Tenn. 
 370, 149 S. W. 1056 (1912) ; Rite v. Kecnc, 149 Wis. 207, 134 N. W. 383, 
 135 N. W. 354 (1912); Fitzsimmons V. Richardson, 86 Vt. 229, 84 Atl. 811 
 
 (1912) ; Perkins v. Board of Comrs. of Putnam County, 88 Ohio St. 495, 
 103 N. E. 377 (1913); Midland Valley v. Lynn, 38 Okla. 695, 135 Pac. 370 
 (1913); Mann v. Franklin Trust Co., 158 App. l3iv. 491, 143 N. Y. S. 660 
 
 (1913) ; Chesapeake & O. R. Co. v. McKell, 209 Fed. 514 (1913) ; Breakwater 
 Co. V. Donovan, 218 Fed. 340 (1914). 
 
 ^ 'Tn Pennsylvania under the act of April 22, 1905, Pub. L. 286, whenever 
 on the trial of any issue a point requesting binding instructions has been 
 reserved or declined, the party presenting the point may move to have the 
 evidence certified and filed and for judgment non obstante veredicto upon 
 the -whole record, \vhereupon it shall be the duty of the court to enter such 
 judgment as should have been entered upon that evidence. The act of April 
 20, 1911, Pub. L. 70, extends the practice to cases where the jury have dis- 
 
 1 agreed. It has been held that if there was a conflict of evidence on a 
 material fact or any reason why there should not have been a binding direction 
 at the trial there can be no judcrment against the verdict entered under the 
 act. Dalmas v. Kemble, 215 Pa. 410, 64 A tl. 559 (1906) ; Duffy v. Y ork Havjn 
 
 UVater F17'd.vr Ci^.T ^.p f^- 107. »i A tl. 908 (1911) ; . Squires v. Jo b^ SO Pa. 
 
 ^Super. Ct. 289 (1912) ; Hanick \.~Veader_,__ 243 Pa. 272, 90 Atl. 146 (1914).
 
 LYMAN V. FIDELITY & CASUALTY CO. 419 
 
 Slocum V. Insurance Company, 228 U. S. 364, that error was com- 
 mitted.^^ It follows tliat our duty is to affirm and modify; that is, to 
 affirm the judgment of reversal and to modify by reversing so much 
 of tlie action of the court below as directed the entry of a judg- 
 ment in favor of the defendant. Conformably to this conclusion it 
 is ordered that the judgment of reversal be, and the same is hereby 
 affirmed, and that the direction for entry of judgment in favor of 
 defendant be reversed and the case is remanded to the trial court 
 with directions to set aside its judgment and grant a new trial. 
 Affirmed and modified. 
 
 SECTION 8. ARGUMENTS OF COUNSEL. 
 
 HENRY H. LYMAN, STATE COMMISSIONER OF EXCISE 
 
 V. THE FIDELITY AND CASUALTY COMPANY OF 
 
 NEW YORK, APPELLANT, IMPLEADED WITH 
 
 MARGARET A. OUSSANI. 
 
 Supreme Court of New York, Appellate Division, 1901. 
 6s App. Div. (N. Y.) 27. 
 
 Appeal by the defendant, The Fidelity and Casualty Company of 
 New York, from a judgment of the Supreme Court in favor of the 
 plaintiff, entered in the office of the clerk of the county of New York 
 on the 4th day of January, 1901, upon the verdict of a jury, and also 
 from an order entered in said clerk's offices on the 28th day of De- 
 cember, 1900, denying the defendant's motion for a new trial made 
 upon the minutes. 
 
 Per Curiam : This action was brought against the principal 
 and surety upon an excise bond to recover the penalty thereof, to 
 wit, the sum of $1,600 for a violation of the Liquor Tax Law (Laws 
 of 1896, ch. 112, as amended) by the principal. The principal and 
 surety answered separately, and the issues raised by the answers 
 were somewhat different. Upon the trial they appeared by separate 
 counsel. At the close of the plaintift"'s case a separate motion was 
 made in behalf of each defendant to dismiss the complaint, and in 
 
 ^'In Slocum v. New York Life Ins. Co., 228 U. S. 364, 57 L. ed. 879 
 (1912), it was held by a divided court that the "right of trial by jury" 
 secured by Art. 7 of the amendments to the Constitution of the United States 
 did not permit entr_v, by a federal court, after a verdict in favor of one party, 
 of a judgment for the opposing party under the Pennsylvania statute. Accord : 
 Pcdersen v. Delaware, Lackawanna & W. R. Co., 229 U. S. 146, 57 L. ed. 
 1 125 (1913) ; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 58 L. ed. 906 (1913) ; 
 Engemoen v. Chicago, St. P. M. O. R. Co., 210 Fed. 896 (1914) Alinnesota 
 jurisdiction. In Bothwell v. Boston El. R. Co., 215 Mass. 407, 102 N. E. 665 
 O913) it is pointed out that the decision is not binding on the state courts 
 in determining what abridges trial by jury under their own constitutions, 
 and in passing on the constitutionality of the Massachusetts act of 1909, ch. 
 236 it is said, per Rugg, C. J., "We are of opinion that the history of our 
 practice as to trial by jury both before and since the adoption of the Consti- 
 tution shows that the trial by jury of our Constitution has slightly more
 
 4-0 TRIAL 
 
 many respects upon difTcrcnt ji^rouncls. The court decided to sub- 
 mit but two qucslions of fact to the jury, viz., whether hquor was 
 sold on the premises after one o'clock on the nij^hts of February 22 
 and 27. 1900. Counsel for the princii)al then oi)ened the case to the 
 jury for his client, at the close of which counsel for the surety com- 
 pany demanded the right to open the case in behalf of his client and 
 to state to the jury his client's position with reference to the evi- 
 dence. The court refused to permit such openinj^ and appellant's 
 counsel excepted. At the close of all the evidence the principal's 
 counsel summed up for his client, and the counsel for the surety 
 company asserted his right to also sum up in behalf of appellant. 
 This was objected to by plaintiff's counsel. The objection was sus- 
 tained by the court and appellant's counsel excepted. 
 
 The liability of the defendants was several and was not neces- 
 sarily the same. We think the court had no right, without appel- 
 lant's consent, to require it to acquiesce in the opening and summing 
 up by the counsel for the principal and to deprive it of the right and 
 privilege of presenting through its counsel its own views of tlie 
 conflicting evidence and questions upon w^hicli the jury was to pass. 
 Where such a case is being defended in good faith, an arrangement 
 can ordinarily be made at the suggestion of the court, by which one 
 counsel will discuss the question of fact for all of a class of defend- 
 ants that may be affected alike; and the court has it in its power, 
 by limiting time of counsel in addressing the jury, to prevent the 
 time of tlie court and the jury being unnecessarily occupied; but we 
 can not assent to the doctrine that tlie court may say arbitrarily that 
 the attorney or counsel for a principal shall open and sum up the case, 
 not only for his own client, but for the surety w'hom he does not 
 represent. 
 
 No other question in the case calls for serious consideration, but 
 these exceptions require that the judgment and order should be re- 
 versed as to appellant and a new trial granted, with costs to appellant 
 to abide the event.-*^ 
 
 Present — Van Brunt, P. J., Patterson, Ingraham, ]\IcLaughlin 
 and Laughlin, JJ. 
 
 flexibility in its adaptation of details to the changing needs of society without 
 in any degree impairing its essential character than is ruled by the majority 
 of the court in Slocum v. New York Life Ins. Co. We are constrained not 
 to adopt the reasoning or the conclusion of that opinion as correctly defining 
 the scope of the legislative power under our Constitution." See article by 
 Prof. E. R. Thayer in 63 Univ. of Pa. L. Rev. 385. See also, Muench v. 
 Hcinemann, 119 Wis. 441, 96 N. W. 800 (1903) ; Miller v. Bank of Harvey, 
 22 N. Dak. 538, 134 N. W. 745 (1912) ; Erwin v. Shell, 119 Minn. 496, 138 
 N. W. 691 (1912) ; Stchlins v. Martin, 121 Minn. 154, 140 N. W. 1029 (1913) ; 
 Brown V. U'alla Walla, 76 Wash. 670, 136 Pac. 1166 (1913) ; McVeety v. 
 Harvey Mercantile Co., 24 N. Dak. 247, 139 N. W. 586 (1913) ; Knight v. 
 Martin, 124 Minn. 191, 144 N. W. 941 (1914) ; Johnston v. Nichols, 83 Wash. 
 394, 145 Pac. 417 (1915). Compare Baltimore & Ohio R, Co. v. Nohil, 
 85 Ohio St. 175, 97 N. E. 374 (1911); Jones v. Chicago B. & O. R. Co., 
 (Wvo.) 147 Pac. 508 (1915). 
 
 -"Compare Sodowsky v. McGee, 4 J. J. Marsh. (Ky.) 267 (1830) ; In re 
 Gird's Estate, lS7 Cal. 534, 108 Pac. 499 ( 1910). 
 
 When a question of fact is left to the jury the parties have a right to 
 be heard by counsel. Douglass v. Hill, 29 Kans. 527 (1883) ; Lee v.^Lee^^
 
 /^ 
 
 HYMAN & CO. V. IT. II. SNYDER CO. 42I 
 
 LOUIS P. HYMAN & COMPANY v. H. H. SNYDER 
 COMPANY. 
 
 Court of Appeals of Kentucky, 1914. ^ / y, — / 
 
 159 Ky. 354.' 
 
 r- A-i 
 
 William Rogers Clay, Commissioner: Another ground urged 
 for reversal is the fact that the trial court limited the time for argu- 
 ment by counsel to ten minutes on a side. Counsel for plaintiff 
 moved the court to extend the time beyond ten minutes. He also \ 
 moved the court to extend the time to thirty-five minutes. Both mo- \ 
 tions w^ere overruled. 
 
 In almost every jurisdiction it is the rule that the time fixed for 
 argument is within the sound discretion of the trial court, and a 
 case will not be reversed unless it appears tliat this discretion has 
 been abused. What is a reasonable time for argument depends upon 
 the circumstances of each particular case. In reviewing the discre- 
 tion of the trial court, appellate courts will take into consideration 
 not only the amount involved, the number of witnesses examined, 
 and the time consumed in developing the testimony, but also the 
 simplicity or complexity of the instructions and of the issues in- 
 volved, and of the facts and circumstances out of which those issues 
 arise. In this case the amount in controversy was about $2,000. -^ 
 Almost two days were consumed in the trial. A number of witnesses ) 
 testified on each side. The instructions were somewhat long, and I 
 presented issues growing out of plaintiff's claim and defendant's ' 
 counter-claim. While we appreciate the necessity for the dispatch 
 of legal business, and therefore the further necessity for not inter- 
 fering with the sound discretion of the trial court in limiting the 
 time for argument, yet that discretion should never be exercised in 
 such a way as to amount to a practical denial of the right of argu- 
 ment. In this case a time limit of ten minutes amounted to a practi- 
 cal denial of that_right. For this reason the judgment must be re- 
 versed.^^ "'""" ' 
 
 9Pa.__Stl^(l848) ; Garrison v. W'llcoxson, li Ga. 154 (1852) ; Millerd v 
 Thorn, 657NrYr402 (1874); Hoicck v. Cite, 30 Nebr. 113, 46 N. W. 280 
 (1890); Fareira v. Sviith, 3 Misc. 255, 22 N. Y. S. 939, 52 N Y St i-^a 
 (1893); Lanon v Hibbard, 63 111. App. 54 (1895); Wilken v. Exterkamp, 
 102 Ky. 143, 420 S. W. 1140, 19 Ky L. 1132 (1897). Compare Heagy v. State, 
 «S Ind. 260 (1882); Gunn v. Head, 116 Ga. 1325, 42 S. E 343 (1902)- 
 IVarner v. Close, 120 Mo. App. 211, 96 S. W. 491 (1906) ; Young v. McNeill. 
 78 S. Car. 143, 59 S. E. 986 (1907). 
 
 / o ^^ *° *^^ ^^^^t of waiving arguments see Tyre v. Morris, 5 Har. (Del ) -i 
 (1848); Reardon y. Smith, 72 111. App. 674 (1897); New York & L. B. 
 R. Co V. Garrity,63N. J. L. 50, 42 Atl. 842 (1899) ; Hackney v. Del. & Atl. 
 ^el Co., 69 N. J. L. 335, 55 Atl. 252 (1903); Conrad v. Cleveland, &c., 
 R. Co., 34 Ind. App 133, 72 N. E. 489 (1904) ; Henry v. Dussell, 71 Nebr. 
 691, 99 N. W 484 0^4) I St. Louis & S. F. R. Co. v. Johnson, 74 Kans. 
 83, 86 Pac. 156 (1906) ; Stlber v. Public Service R. Co., 78 N. J L qo 7^ 
 Atl. 232 (1909) ; Barney v. Quaker Oats Co., 85 Vt. 372, 82 Atl. 113 '(1912) 
 ;; Fart of the opmion is omitted. 
 
 / J'^^^'^^''^ ^- ^i^^^^.'r -1 ^"^- 370 (1854); Frcligh V. Ames, 31 Mo. 2S3 
 vi«6o;; frice v. Hannibal, &c., R. Co., 35 Mo. 416 (1865); Baldwin \.
 
 4^2 TRIAL 
 
 >OraY r. CriESAPEAKI' & OTITO RAILWAY CO. 
 / Supreme Court of Atpeals of \\'kst Virginia, 1905. 
 
 57 //'• Ta. 333. 
 
 Action by A. S. Ray, administrator of Annie S. Ray against the 
 Chesapeake and Ohio Railway Company. Judgment for plaintiff 
 and defendant brings error. -^ 
 
 Brannon, p. J.: Another alleged error Is based on the reading 
 from the code and books of reported cases by counsel of the plaintiff 
 in argument before the jury. Counsel distinctly call upon us to say 
 Avhetlier it is not error to allow counsel to read law to the jury 
 against obicction. The subject has been much discussed in Bloyd v. 
 Pollock, 27 W. Va. 75 ; Ric'kcffs v. C. and O. Ry. Co., 33 W. Va. 433 ; 
 Gregory v. O. R. R. Co., 37 W. Va. 606. As stated in the Gregory 
 
 I case reading law from law books to the jury is very dangerous and 
 
 I should not be indulged. So many books and decisions are read, of 
 such diverse statement and conclusion, some good law, some bad, 
 some not pertinent to the case, and misapplied to the facts, and at 
 the close of the argument the law of the case is "confusion worse 
 
 iconfounded." How can the most intelligent jury solve the riddle? 
 
 /The safer course is not to read law to the jury. As in this case it 
 
 ' may entail reversal. The court has full power to refuse to allow it. 
 It consumes time and lengthens trials. Attorneys should argue and 
 apply the facts and get the law by instructions from the court, if 
 
 ' desired. If it is true that tlie jury is tlie judge of evidence and the 
 court of tlie law, then it follows that law should not be read to the 
 jury ; for if the jury is not the judge of tlie law, why read law books 
 to it ? The courts of the United States do not allow it. In most of the 
 
 I states it is not allowed. Sidlivan v. Royer, y2 Cal. 248, i Am. Stat. 51 
 and note ; Phoenix v. Allen, 11 Mich. 501 ; Hudson v. Hudson, 90 Ga. 
 581. "The practice of counsel reading from law books when arguing 
 to the jury is exceedingly dangerous and should not be indulged in." 
 Steffenson v. Chicago, 51 N. W. 610. "The court may, in civil cases, 
 refuse to permit counsel to read law to a jury, and this can not be 
 assigned as error. It is the province of the court, in such cases to 
 interpret the law for the jury, and not for the jury to interpret the 
 law for themselves." Sprague v. Craig, 51 111. 288.-* When, how- 
 
 Bitrrows, 95 Ind. 81 (1883) ; Commonwealth v. Bnccicri. 1^3 Pa.^ 53S, 26 
 Atl. 228 (1893) ; People's Casualty Ltaim Adj. Co. v. JJatrow^ 172 111. 62, 
 49 N. E. 1005 (1898) seven minutes allowed on each side; Christiansen V. 
 Graver Tank Works, 223 III. 142, 79 N. E. 97 ( 1906) ; Mitchell v. State, 
 86 Ark 486, in S. W. 806 (1908) ; Mitchell v. Robinson, (Tex. Civ. App.) 
 162 S. W. 443 (1913). Compare Nesbitt V. Walters, 38 Tex. 576 (1873); 
 Senior V. Brogan, 66 Miss. 178, 6 So. 649 (1888); Zweitiisch v. Lowy, 57 
 111. App. 106 (1804) ; Neumann v. St. Louis Transit Co., 109 Mo. App. 221, 84 
 S. W. 1S9 (1904). 
 
 ^Part only of the opinion is printed. 
 
 ^Whilc counsel may express their own views of the lav/, it is, according 
 to some authorities, error to permit them to read extracts from hooks as the 
 law of the case. Johnson v. Culver, 116 Ind. 278, 19 N. E. 129 (1888) ; Tnllcr
 
 RAY V. CHESAPEAKE & O. R. CO. 423 
 
 ever, law has been read, it becomes a question whether it should 
 cause reversal. If the law is bad, or not pertinent to the case, unless 
 instructions after such argument propound the sound law on the very 
 points to which the bad law relates, it will call for reversal ; but if 
 so^ured, it will not. If good and pertinent law, it will not call for 
 reversal. The law read in this case was statute and decided law 
 "pertinent and sound, except as stated below, and we see no cause for 
 reversal for tliat cause under cases above cited. I will say, however, 
 that the reading from Cleveland v. Corrigan, 46 Ohio St. 283, 3 L. R. 
 A. 387, was bad, because it states three clashing lines of authorities, 
 as to the care required of children, leaving it to the jury to say which ', 
 was the correct one. Perhaps plaintiff's instruction No. i cured it ; / 
 but it should not have been read. L_ 
 
 But this does not end the trouble. The attorney read long, con- 
 fusing recitals of facts from decided cases. For what purpose? 
 From Omaha v. Morgan, a long recital of the facts of that case — \ n^-fi.. 
 notliing but a recital of facts. What had they to do with this case<.,^t/ 
 except to confuse the jury? Was it intended to similarize the two/,^-/^ 
 cases? This was not admissible. It is purely evidentiary matter, W ''^ 
 which everybody concedes to be not allowable, because a jury must ^'^iff, 
 try a case by, and only by its own evidence. The facts had little or 
 no similarity with the case before the jury. So far as they had, it 
 was improper; if they had not, then it was improper for that case 
 to touch this case. Then, there is tlie long detail of facts read from 
 Swift V. Staten Island R. T. R. Co., 25 N. E. 378, touching injury to a 
 little girl of fifteen while crossing a railroad track, injured while 
 watching one train by another approaching from another direction. 
 The cases being nearly akin in facts and character, the object was to 
 lend strength to the plaintiff's case by using that case as a precedent ; 
 in other words, to try tliis case by that case. It also contained much 
 argumentation to prove the liability on the facts of that case — mere 
 facts — and thence deduced liability on the defendant in this case. 
 
 V. Talbot, 23 111. 357, 76 Am. Dec. 695 (i860) ; Phoenix Ins. Co. v. Allen, 11 
 Mich. 501, 83 Am. Dec. 756 (1863) ; Baldwin's Appeal, 44 Conn. 37 (1876) ; 
 Reich V. New York, 12 Daly (N. Y.) 72 (1883) ; Gricbel v. Rochester P. Co., 
 24 App. Div. 288, 48 N. Y. S. 505 (1897) ; Marriage v. Electric Coal Co., 176 
 111. App. 457 (1912). Others hold that the matter lies in the discretion of the 
 court. May field v. Cotton, yj Tex. 229 (1872); People v. Anderson, 44 Cal. 
 65 (1872) ; Curtis v. State, 36 Ark. 284 (1880) ; Gilberson v. Miller Min. & 
 Smelt. Co., 4 Utah 46, 5 Pac. 699 (1885) ; Baltimore & O. R. Co. v. Kean, 
 65 Md. 394, 5 Atl. 325 (1886) ; Williams v. Brooklyn El. R. Co., 126 N. Y. 96, 
 26 N. E. 1048 (1891) ; Stratton v. Dole, 45 Nebr. 472, 63 N. W. 875 (1895) ; 
 Commonwealth v^ Renso, 2ibJ P?i. 147. 6.=; Atl . 30 (1906) ; Mahoney v. Dixon, 
 '34 Mont. 454, '&7 Pac. 452~(T9o6). And, the court's refusal of such permission 
 will not be disturbed. Richmond's Appeal, 59 Conn. 226, 22 Atl. 82 (1890) ; 
 Newport News, &c., R. Co. v. Bradford, 100 Va. 231, 40 S. E. 900 (1902) ; 
 Stone v. Comm., 181 Alass. 438, 63 N. E. 1074 (1902) ; Meyer v. Foster, 147 
 Cal. 166, 81 Pac. 402 (1905) ; Ryan v. Lambert, 49 Wash. 649, 96 Pac. 232 
 (1908) ; Sullivan v. Capital Trac. Co., 34 App. Cas. (D. C.) 358 (1910). In Good 
 V. Mylin, i-^ Pa. St. 538 £ 1850) it was held proper to refuse permission to 
 counsel to read to the jury the opinion of the Supreme Court reversing: a 
 former judgment in the same cause. Accord: Bell v. McMaster, 29 Hini 
 (N. Y.) 272 (1883) ; Clark v. Iowa Cent. R. Co., 162 Iowa 630, 144 N. W. 
 332 (1913)-
 
 .JJ4 TRIAL 
 
 It is not allowable to tluis introduce evidence and facts of another 
 case, because it lends its impress, inllucnces, or may influence, the 
 iury trying the case in hand. It is matter foreign and extraneous to 
 the' case. See Richrtts v. CJics. and O. Ry., 33 W. Va. 433, citing 
 I Thompson on Trials, sec. 947, saying that counsel had no right 
 to introduce any evidentiary matter not in evidence, and can not 
 under pretence of reading law books read passages which bear on 
 , <luest!ons of facts before the jury,-^ It is not allowable even to.read 
 the facts of the same case as contained in a rc[)ort of a decision 
 upon it in the Supreme Court. State v. IVIilt, 5 Jones L. (N. Car.) 
 224, y2 Am. Dec. 533. 
 Judgment reversed. 
 
 / 
 
 BOONE V. HOLDER. 
 
 Supreme Court of Arkansas, 1908. 
 87 Ark. 461. 
 
 Hart, J. : B. E. Boone brought this suit against Albert Holder 
 for alienation of the affections of his wife, Alice Boone. There was 
 a jury trial, and a verdict for the defendant, and plaintiff has ap- 
 pealed.-^ 
 
 It is unnecessary to abstract the testimony, except to state that 
 it was sufficient to sustain the allegations of the complaint. 
 
 Xo objections were made to the instructions of the court. The 
 sole ground relied upon for reversal is on account of alleged im- 
 proper argument of counsel. In his motion for a new trial the 
 plaintiff, Boone, states that R. J. White, counsel for the defendant 
 was, over his objections, permitted to argue to the jury "that if the 
 mouth of the plaintiff"'s wife was not closed by the iron laws she 
 would swear that Holder, the defendant, never had sexual inter- 
 course with her; that her husband, the plaintiff, had mistreated her; 
 that he had neglected her and had been too intimate with one of the 
 witnesses for the plaintiff — Doshy Holder." 
 
 It is a well established rule that it is error, sufficient to reverse a 
 judgment, for the court to suffer counsel, against objection, to state 
 
 ='In Williams v. Brooklyn El. R. Co., 126 N. Y. 96, 26 N. E. 1048 (i8gi), 
 it is said: "If, however, tlie reading from a decision was to bring before the 
 jur>' the facts of the case decided, or the amount of the verdict, or the com- 
 ments of the judge on the facts to influence the jury in deciding upon the facts 
 in the case on trial, or in fixing the amount of damages, then clearly the read- 
 ing ouglit not to be permitted." Accord: Porter v. Cohen, 60 Ind. 338 (1878) ; 
 Dempscy v. State, 3 Tex. App. 429, 30 Am. Rep. 148 (1878) ; Evansville v. 
 Milter, 86 Ind. 414 (1882) ; Williams v. State, 83 Ala. 68, 3 So. 743 (1887) ; 
 Mullen V. Rcinig, 72 Wis. 388, 30 N. W. 861 (1888) ; Laughlin v. Street R. Co., 
 80 Mich. 154, 44 N. W. 1049 (1890) ; East Tenn., &e., R. Co. v. King, 88 Ga. 
 443, 14 S. E. 708 (1891) ; Jackson v. Pool, 91 Tenn. 448, 19 S. W. 324 (1892). 
 Contra: Harrington v. Wadeshoro, 153 N. Car. 437, 69 S. E. 399 (1910), by 
 statute. 
 
 See also Elliott v. New York, N. H. & IE R. Co., 83 Conn. 320, 76 Atl. 
 298 (1910). 
 
 **Part of the opinion is omitted.
 
 UNITED STATES CEMENT CO. V. COOPER 425 
 
 facts pertinent to the issue and not in evidence. 12 A. & E. Encyc. 
 "oi PI. & Pr., p. ^2^ ; Thompson on Trials, 963. Although not 
 expressly decided, the language used by the court in the case of 
 Little Rock Ry. and Electric Co. v. Goerner, 80 Ark. 158, expresses 
 the same view. The reason for the rule is that a party can not be 
 permitted to present his evidence in the form of argument of his 
 counsel to the jary, but unust confine himself to the legal method of 
 establishing his cause of action or defense thereto. 
 
 The remarks complained of being a statement of matters material 
 to the issues, the court should have admonished the attorney that 
 the statement was improper, and should have told the jury to dis- 
 regard it. Having failed to do this, it was prejudicial error to 
 permit counsel to travel out of the record and to base his argument 
 on facts not appearing therein. Little Rock and Ft. Smith Ry. Co. v. 
 Cavanesse, 48 Ark. 106 ; Fort v. State, 74 Ark. 210.-^ 
 
 For error in counsel for defendant stating to the jury prejudicial 
 facts which were not in evidence, the judgment must be reversed 
 and the cause remanded for a new trial. 
 
 .^UNITED STATES CEMENT COMPANY v. COOPER. 
 
 Supreme Court of Indiana, 1909. 
 
 172 Ind. 599. 
 
 Action by Spencer E. Cooper, by his next friend, against the 
 United States Cement Company, From a judgment on a verdict for 
 pjlaintiff for $500 defendant appeals. ^^ 
 
 Hadley, J. : Appellee's counsel, in his closing argument to the 
 jury, used the following langauge : "The plaintiff is not rich. He 
 w-as not born with a silver spoon in his mouth. He can not sit in a 
 richly adorned chair with silver and gold piled about his plate. He 
 
 ^' Among the many cases in accord see: Mitchnm v. State, ll Ga. 615 
 (1852) ; Tucker v. Heimikcr, 41 N. H. 317 (i860) ; State v. Lee, 66 Mo. 163 
 (1877) ; Union Cent. Life Ins. Co. v. Chcever, 36 Ohio St. 201, 38 Am. Rep 
 573 (1880) ; Williams v. Brooklyn El. R. Co., 126 N. Y. 96, 26 N. E. 1048 
 (1891) ; Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind App 510 ^3 
 N. E. 991 (1892) ; Roso v. Detroit, 96 Mich. 447, 56 N. W. 11 (1893) ; Union 
 Pac. RCo.v. Field, 137 Fed. 14, 69 C. C. A. 536 (1905) ; Fjsliei^. FemisyLdmtia 
 .LiUM^- Super. Ct.JSQQ-UOiXZ) ; Berger v. Standard Oil Co., 31 Kv. L. 613, 103 
 S. W. 245 (1907) ; Angelas v. Pelias, 150 III. App. 527 (1909) ; Bliss v. IP'ol- 
 cott, 40 Mont. 491, 107 Pac. 423 (1910) ; CHisens Mut. Fire Ins. Co. V. Cono- 
 wtngo Bridge Co., 116 Md. 422, 82 Atl. 372 (1911) ; IVorden Lumber, &c. Co. 
 v. Minneapolis, St. P., &c. R. Co., 168 Mich. 74, 133 N. W. 949 (1911)- St 
 L, I M & S R. Co. V. Earle, 103 Ark. 356, 146 S. W. 520 (1912) ; Chicago, 
 St. L. 6- N. O. R. Co. v. Rozvell, 151 Ky. 313, i^i S. W. 9S0 (1912) ; Lucas 
 V. Peoria & E. R. Co., 171 III. App. i (1912) ; Spahn v. Peoples R. Co., (Del.), 
 02 Atl. 727 (1912) ; Nuckols V. Andrews, 6 Ala. App. 275, 60 So. 592 (1912) • 
 Herricks v. Chicago & E. I. R. Co., 2S7 HI- 264, 100 N. E. 897 (1913) • Buck- 
 ley V. Bo.'iton El. R. Co., 215 Mass. 50, 102 N. E. 75 (1913) ; Fadden v. Mc- 
 Kmney, 87 Vt. 316, 8g Atl. 351 (1914). 
 
 ^Only so much of the opinion as relates to the argument of counsel is 
 given.
 
 426 TKIAL 
 
 can not riJc in fine chariots. lie docs not have millions, like the 
 defendant, made from the labor of other men." The appellant, in 
 the presence of the jury, objected to the laiij:[ua<:^e at the time, and 
 moved that the court withdraw the same from the jury, which mo- 
 tion was overruled. Api>ellant thereupon moved that the court with- 
 draw the case from the jury and set aside the submission, w'hich 
 motion was also overruled, and an exception properly reserved. The 
 language complained of was not directed to any issue or legitimate 
 evidence in the case, and w'as of a prejudicial character. There could 
 have been no justilication for its use, and it can not now be said that 
 it did not affect the result. 
 
 Judgment reversed and cause remanded, with instructions to 
 sustain appellant's motion for a new trial, and for further proceed- 
 ings not inconsistent herewith.-'' 
 
 SECTION g. CHARGE OF THE COURT. 
 
 STUMPS V. KELLEY. 
 ' Supreme Court of Illinois, 1859. 
 
 22 ///. 140. 
 
 Action on the case by Susanna Kelley by her next friend, appellee, 
 against Barbara Stumps, appellant, for damages resulting from in- 
 juries inflicted by a vicious cow belonging to the appellant. At the 
 
 *^In addressing the jur>' appeals to passion and prejudice are not allow- 
 able. Galveston, H. & S. A. R. Co. v. Cooper, 70 Tex. 67, 8 S. \V. 68 (1888) ; 
 Wagner V . Hazle Township, 2i5j ^:3^2iQ^64^AtI. 405 (1906) ; Holmes v. Loud, 
 149 Mich74io, 112 JN. W. 1 109 (1907) ; Seaboard Air Line R. Co. v. Smith, 53 
 Fla. 375, 43 So. 235 (1907) ; Saxtonv. Pittsburgh R. Co,,_2iq Pa. _492, 68 Atl. 
 1022 (1908) ; Hyman v. Kirt, 153 Atich. 113, 116 N. W. 536 (190S) ; llhite v. 
 Chicago & N. W. R. Co., 145 Iowa 408, 124 N. W. 309 (1910); Jones v. 
 Tucker, 26 Del. 422, 84 Atl. 4, 1012 (1912) ; Haake v. G. H. Dnlle Mill. Co., 
 168 'Sio. App. 177, 153 S. W. 74 (1912) ; Moore v. Springfield, &c. Trac. Co., 
 180 III. App. 623 (1913) ; Appel V. Chicago City R. Co., 259 III. 561, 102 N. E. 
 1021 (1913) ; Almon v. Chicago & N. W. R. Co., 163 Iowa 449, 144 N. W. 
 997 (1914); Becker v. Phila. Rapid Transit (7<?..^21i_P? 1^ 9^ Atl. 86l 
 (1914); Morrison v. Carpenter, 179 Mich. 207, 146 N. W. 100(1914). But 
 appeals to s\Tnpathy based on the evidence are not ordinarily improper. 
 Doii'dell V. Wilcox, 64 Iowa 721, 21 N. W. 147 (1884) ; Gulf C. & S. F. R. 
 Co. V. Norflcet, 78 Tex. 321, 14 S. W. 703 (1890); LIenry_y. HnfJ, 143 Pa . 
 St. ^^ 22 Atl 1046 , (1801 ): Shute V. Exeter Mfg. Co., 69 rs^ R. 210, 46 Atl. 
 391 (I'^^J?) ; Atlantic Coast Line R. Co. V. Jones, 132 Ga. 189, 63 S. E. 
 834 (looS) ; Eaton v. Hope, 177 Mich. 411, 143 N. W. 241 (1913). In Ferguson 
 V. Moore, 98 Tenn. 342, 39 S. \V. 341 (1897), it is said, per Wilkes, J.: 
 "Tears have always been considered legitimate arguments before a jury, and 
 ■while the question has_ never arisen out of any such behavior in this court, 
 we know of no rule or jurisdiction in the court below to check them. It would 
 appear to be one of the natural rights of counsel, which no court or consti- 
 tution could take away. It is certainly, if no more, a matter of the highest 
 personal privilege. Indeed, if counsel has them at command, it may be seri-
 
 STUMPS V. KELLEY 427 
 
 trial there was a verdict for the plaintiff for $500. Defendant ap- 
 pealed. ^° 
 
 Walker, J. : Courts are created and established for the admin- 
 istration of justice, and all legal and proper means should be em- % 
 ployed for the attainment of that end. And how can it be error for 
 the court to instruct the jury as to the law of the case, whether \ 
 asked to do so or not, we are at loss to conjecture. We have been 
 referred to no authority that so holds, and we can not imagine that 
 such can exist. One of the very objects of having a judge is to in- 
 struct the jury on the law applicable to the case. Instead of its being 
 error for the court on its own motion to instruct, where it seems 
 to be required by the justice of the case, it is rather the duty of the 
 judge to give such instructions. The instructions given by the 
 court in this case, without being requested by either party, we think 
 embraced the law as applicable to the case, and it is not denied that ) 
 it does. And we have no hesitancy in saying that so far from its / 
 being error, that tlie court acted in strict conformity wuth the duty/ 
 imposed by the oath of the judge, and the requirements of the law.^i 
 
 Affirmed. 
 
 ously questioned whether it is not his professional duty to shed them when- 
 ever proper occasion arises, and the trial judge would not feel constrained 
 to interfere unless they were indulged in to such excess as to impede or delay 
 the business of the court." 
 
 '"The statement of facts is abridged from the opinion of the court, only 
 a part of which is printed. 
 
 '^The court may of its own motion instruct the jury upon the questions 
 of law involved. Clarke v. Baker, 7 J. J. Marsh. (Ky.) 194 (1832) ; Blunt v. 
 Commonxijealth, 4 Leigh (Va.) 689, 26 Am. Dec. 341 (1843) ; Thistle v. Frost- 
 hurgh Coal Co., 10 Md. 129 (1856) ; State v. Burns, 8 Xev. 251 (1873) ; Mc- 
 Lellan v. Wheeler, 70 Maine 285 (1879) ; Parker v. Georgia Pac. R. Co., 83 
 Ga. 539, 10 S. E. 2T,S (1889); Roscnkovits v. United Rys. & Electric Co., 
 108 Md. 306, 70 Atl. 108 (1908). Contra by statute: Archer v. Sinclair, 49 
 Miss. 343 (1873); Wat kins v. State~,Zo 'M^iss'.'^223"XiSB2). It has been held 
 that the court is not bound to give any instructions unless by the request of 
 the parties. Reasoner v. Brown, 19 Ark. 234 (1857) ; Haiipt v. Pohlmann, I 
 Robt. (N. Y.) 121 (1863); McLellan v. Wheeler, 70 Maine 285 (1879); 
 Stuckey v. Fritsche, 77 Wis. 329, 46 N. W. SQ (1890) ; Osgood v. Skinner, 211 
 111. 229, 71 N. E. 869 (1904) ; Morgan v. ]\IiilJiall, 214 Mo. 451, 114 S. \V. 4 
 (1908). Elsewhere it is held mandatory upon the court to charge with reason- 
 able fulness upon all the material issues presented, even in the absence of 
 requests. Capital City Brick & Pipe Co. v. Bes Moines, 136 Iowa 243, 113 
 N. W. 83s (1907); Douglass V. Geiler, 32 Kans. 499, 4 Pac. 1039 (1884) ; 
 Barton v. Cray, 57 jMich. 622, 24 N. W. 638 (1885); Rowell V. Vershire, 62 
 Vt. 405, 19 Atl. 990, 8 L. R. A. 708 (1890) ; Chattanooga & D. R. Co. v. Foils, 
 113 Ga. 361, 38 S. E. 819 (1901) ; Falkner v. Pilcher, 137 N. Car. 449, 49 S. E. 
 945 (1905), and see Ball v. Intcrtirban St. R. Co., 49 Misc. 129, 96 N. Y. S. 
 739 (1905)- But generally, where the :harge to the jury is correct, as far as 
 it goes, failure to give further or more specific instructions upon a particular 
 point will not be held error in the absence of any request therefor. Pcnnock 
 V. Dialogue, 2 Pet. (U. S.) I, 7 L. ed. 327 (1829) : Cnober v. Altimus. 62 Pa. St 
 486 (1869) ; Webber v. Djinn, 71 Maine 331 (1880) ; Sudlozu v. Warshing, 108 
 N. Y. 520, 15 N. E. 532 ( 1888) ; Humes v. United States, 170 U. S. 210, 42 L. ed. 
 loii, 18 Sup. Ct. 602 (1897) ; Camden & A. R. Co. v. Williams, 61 N. J. L. 
 646, 40 Atl. 634 (1898) ; Na.^hville & St. L. R. Co. v. Heikens, 112 Tenn. 378, 
 79 S. W. 1038 (1903); Miller v. Shumway, 135 Mich. 654, 98 N. W. 385 
 (1904); Price V. Huddleston, 167 Ind. 536 (1906); Bailey v. Grand Forks
 
 INDIANA RATTAVAY CO^IPANV r. IMAURER. 
 
 SUPKEMli CoL'KT (M" ImMANA, 1902. 
 160 Iiid. 25. 
 
 Action I)}' Joliii Maurcr against the Indiana Railway Company. 
 From a judgment for plaintiff, defendant appeals.^^ 
 
 Hadlky, C. J.: Suit by appellee to recover damages for injuries 
 received through the alleged negligence of appellant in operating its 
 street railroad in the city of South Bend. Upon issues joined by the 
 general denial, the jury returned its verdict for appellee for ^400, 
 and therewith returned their answers to divers interrogatories pro- 
 pounded by the court. 
 
 It is averred in the complaint tliat the plaintiff is old, infirm, and 
 possessed of but one leg ; that in alighting from the street car it was 
 necessary for him to use both hands in supporting himself ; and 
 that while reaching for and attempting to remove from the car a grip 
 bag which he had, and before he had time to remove it, the defendant 
 suddenly and negligently started the car, thereby causing the plain- 
 tiff to be thrown down and dragged by the car, whereby he was in- 
 jured, etc. 
 
 The second instruction gi\en to the jury is complained of. It is 
 in substance as follows: A higher degree of care is required of a 
 street car company towards passengers who are aged and infirm 
 than towards the active and able-bodied, and it is the duty of such 
 company to assist such infirm passengers — if in need of assistance— 
 in alighting from its car when they are passengers thereon; and if 
 it was shown that the plaintiff was a passenger on the defendant's 
 car, and was infirm, and a cripple, and in need of assistance in alight- 
 ing from the car, and the defendant knew such facts, and the 
 defendant having stopped the car to allow the plaintiff to alight, 
 failed and neglected to assist him, and started the car forward be- 
 
 Lumber Co., 107 Minn. 192, 119 N. W. 786 (1909) ; Grealish v. Brooklyn C. 
 & S. R. Co., 130 App. Div. 238, 114 N. Y. S. 582 (1909) ; Kahn v. Bennett , 223 
 Pa. 36, 72 At l. 342 (1909). 
 
 ' A misdli-ection as lo the law which injuriously afTects one of the parties 
 is error and ground for reversal. Carnes v. Piatt, 6 Robt. (N. Y.) 270 
 (1868) ; Radcli ffe v. H oily field, 2i6 Pa. 367 65_Atl. ^89 (1907). But error 
 will be regarded as harmless if the riglits oi the appeHant have not been preju- 
 diced thereby. 38 Cyc. 1809 and cases cited ; San Juan v. St. John's Cas Co., 
 195 U. S. 510, 49 L. ed. 299, 25 Sup. Ct. 108 (1904) ; F.nstice v. Cottrtright, 61 
 N. J. L. 653, 40 Atl. 676 (1898). Where, however, the instructions are cor- 
 rect in themselves, a reviewing court will not reverse because wrong reasons 
 were given for them, unless it clearly appears that the jury were misled or 
 injustice has resulted in consequence of such instructions. Dale v. Arnold, 2 
 Bibb (Ky.) 605 (1810) ; liaslcy v. Craddock, 4 Rand. (Va.) 423 (1826) ; Car- 
 penter V. Pierce, 13 X. H. 403 (1843); Budd v. Brooke, 3 Gill (Md.) 198, 
 43 Am. Dec. 321 (1845) ; i2ii^^UY.J2n:*jJiPx_St^Ji7 (^8) ; Blodgctt v. 
 Berlin Mills Co., 52 N. H. 215 ( 1872) ; Marion 'vTState, 20 Nebr. 233, 29 
 N. W. 911, 57 Am. Rep. 825 (1886). 
 
 *^Part of the opinion of the court is omitted.
 
 INDIANA RAILWAY CO. V. MAURER 429 
 
 fore the plaintiff had fully alighted, thereby throwing and injuring 
 the plaintiff, the defendant should be found guilty of negligence. 
 
 Instructions to the jury must be confined to the issues. ^ It is^ 
 fundamental that a plaintiff can recover only upon the complaint hes 
 makes ; that is, he can not complain of one thing, and recover for(, 
 another. Hence in directing the jury as to the rules of law that shall 
 guide them in reaching their verdict, the court must avoid leading 
 them av/ay from the issue made by the pleadings, and into giving 
 effect to facts not in the case. If extraneous and irrelevant facts 
 have been disclosed by the evidence which are likely to influence the 
 jury, tlie latter should be admonished to disregard them; and a 
 statement of the law relating to such irrelevant facts without limita- 
 tion, and in such manner as naturally to lead the jury to believe such 
 facts effective in the consideration of their verdict, will constitute 
 reversible error, because inclined to mislead the jury. Lindley v. 
 Sullivan, 133 Ind. 588, 592; McKeen v. Porter, 134 Ind. 483, 49°; 
 Nichol V. Thomas, 53 Ind. 42, 52; Elliott, Gen. Pr., 899. The pro- s 
 priety of an instruction is to be determined, not by whether it em- ' 
 bodies a correct statement of the law upon a given state of facts, 
 but whether it correctly states the law relevant to the issuable facts 
 given in evidence on the trial.^^ 
 
 The court clearly stepped outside the case made by the pleadings 
 iri the giving of this instruction. The sole ground of complaint is 
 the untimely starting of the car before the plaintiff had time fully to 
 alight. That the defendant failed to assist the plaintiff in leaving 
 the car is not stated as a cause for damages, or even that such thing 
 had occurred, and therefore, so far as it affected the plaintiff's right 
 to recover damages, it was wholly immaterial whether the defendant 
 did or did not assist him from the car. The record shows that con- 
 siderable evidence was given, without objection, both in support and 
 in denial of the conductor's claim that he did assist the plaintiff off 
 the car; but the giving of irrelevant evidence without objection fur- 
 nishes the court no sufficient justification for charging the jury 
 that the defendant might be found guilty of negligence upon a state 
 of facts not properly in the case.=^* The natural effect of such charge 
 
 "Accord: Hooker v. Johnson, 6 Fla. 730 (1856) ; Whitman v. Keith, 18 
 Ohio St. 134 (1868) ; Gulf of California Nov., &c. Co. v. State Investment, 
 &c. Co., 70 Cal. 586 (1886) ; Holt v. Pearson, 12 Utah 63, 41 Pac. 560 (1895) ; 
 Baltimore & O. R. Co. v. Lee, 106 Va. 32, 55 S. E. i (1906) ; Smitley V. Pinch, 
 148 Mich. 670, 112 N. W. 686 (1907) ; Smith v. Central Vermont R. Co., 80 
 Vt. 208, 67 Atl. 535 (1907) ; Ratner V. Chicago City R. Co., 233 111. 169, 84 
 N. E. 201 (1908) ; Hackett v. Chicago C. R. Co., 235 III. 116, 85 N. E. 320 
 (1908). 
 
 "Accord: Coos Bay R. Co. v. Siglin, 26 Ore. 387 (1894) ; Moody v. Rozv- 
 land, 100 Tex. 363, 99 S. W. 11 12 (1907); Jacksonville El. Co. v. Batchis, 
 54 Fla. 192, 44 So. 933 (1907) ; Latourctte v. Meldriim, 49 Ore. 397, 90 Pac. 
 ■^03 C1907) ; Kellogg v. Kirksville, 132 Mo. App. 519, 112 S. W. 296 (1908). 
 Contra : Scott y. Sheaklv. ^ Watts (Pa.') ^o (18.^1 ) ; Gayarre v. Tunnard, 
 9 La. Ann. 254 (1854); l^oyce v. California Stage Co., 25 Cal. 460 (1864) ; 
 Collins V. Collins, 46 Iowa 60 (1877) ; Bowers v. Thomas, 62 Wis. 480, 22 N. 
 W. 710 (1885) -. Sloan V. Baltimore & P. R. Co.. 131 Pa. St. 568, 1 8 Atl. 903 
 (1890) ; Rome Wotel Co. v. Warlick, 87 Ga. 34, 13 S. E. 116 (1^91) ; Brusie 
 T. Peck Bros. & Co., 135 N. Y. 622, 32 N. E. 76 (1892) ; Fox v. Utter, 6 Wash.
 
 430 TKIAL 
 
 is to impress the jury that the fact of assistance or non-assistance is 
 material, and the truth may he that in arrivinti^ at tlieir verdict the 
 jury found the dcfomhint guiU}' of ncci^hgcnce in faihng to assist the 
 l>haintitT to alight, and free fioni negligence in the untimely starting 
 of the car. \\c can not tlierefore say that the instruction was harm- 
 less. 
 
 / 
 
 Judgment reversed.^' 
 
 ST. LOUIS, I. M. & S. R. CO. v. SPENCER. 
 
 Circuit Court of Appeals, U. S., Eighth Circuit, 1895. 
 71 Fed. 93. 
 
 Sandborn, J. : About 9 o'clock in the forenoon, on the twenty- 
 fourth day of May, 1894, Sarah Owen Spencer, the defendant in 
 error, was a passenger in a Pullman car attached to a train of the 
 St. Louis, Iron Mountain and Southern Railway Company, the plain- 
 tiff in error, which was passing through the yard of that company at 
 Texarkana, in the state of Arkansas. A switchman of the plaintiff 
 in error carelessly threw a switch before the Pullman car had passed 
 it, and this derailed the car, caused it to collide with a train of coal 
 cars, smashed two of the windows on one side of the car, and as the 
 defendant in error alleged, seriously injured her. She brought an 
 action for her damages, and recovered a judgment against the com- 
 pany. The writ of error in this case was sued out to review the 
 proceedings which resulted in this judgment. 
 
 Counsel for tlie plaintiff in error declare in their brief that they 
 rely upon eleven supposed errors to reverse the judgment. The 
 first five are founded upon exceptions to the refusal of the court to 
 give certain requests for instructions to the jury, which they pre- 
 ferred. The first request was that if the jury believed that the injury 
 to the defendant in error resulted without fault of the company, by 
 inevitable accident, or by reason of the diseased condition of the 
 defendant in error, their verdict should be for the plaintiff in error. 
 The second request was that if the jury found from the evidence 
 that the defendant in error was injured by mere accident, without 
 fault on the part of the company or its employes, they should return 
 a verdict for the company. These requests were properly refused. 
 
 299. 33 Pac. 354 (1893; Madison v. Missouri Pac. R. Co., 60 Mo. App. 599 
 C1894) ; Oualy v. Johnson, 80 Alinn. 408, 83 N. W. 393 (1900) ; Davis v. At- 
 lanta, &c. R. Co., 63 S. Car. 370, 41 S. E. 468 (1901) ; Struehling v. Stevenson, 
 129 Iowa 25, 105 N. W. 341 (1905) ; National Mutual Fire Insurance Co. v. 
 S Prague, 40 Colo. 344, 92 Pac. 227 (1907) ; Childs v. Childs, 49 Wash. 27, 84 
 Pac. 660 (1908J. See 2 Thompson Trials (2d ed.), § 2309 et seq. 
 
 "See Republic Iron & S. Co. v. Radis, 106 111. App. 530 (1903), 
 where it is said: "It is error to instruct the jury upon matters inadmissible 
 in evidence under the pleadinps, when proper objections are made, even 
 though the court admits the evidence against the objection." Accord: Illinois 
 Cent. R. Co. v. McKee, 43 111. 119 (1867) ; Bick v. Minneapolis, St. P. & S. S. 
 M. R. Co., 107 Alinn. 78, 119 N. W. 505 (1909).
 
 ST. LOUIS, I. M. & S. R. CO. V. SPENCER 43 1 
 
 The evidence was undisputed that the derailment of the car was 
 caused by the act of the switchman of the company, who threw the 
 switch before the rear trucks of the car had passed over it. It is 
 error to charge the jury upon an assumed state of facts to which no 
 evidence apphes, because it withdraws their attention from the real 
 issues on trial, and tends to fix it upon issues that are not pre- 
 sented by the case.^^ 
 
 The requests for instructions of which complaint is made in the 
 third, fourth and fifth supposed errors that are relied upon were 
 substantially given in the general charge of the court. It is not error : 
 for the trial court to refuse to charge as requested by counsel, where ] 
 the rules of law embodied in the requests are properly laid down in , 
 the general charge of the court.^'^ 
 
 The sixth, seventh, eighth, ninth and tenth supposed errors of 
 which complaint is made relate to certain paragraphs in the general 
 charge of tlie court; but, upon examination of the record, we find 
 that no exceptions to these portions of the charge were taken before, 
 the jury retired. 
 
 The general charge covers four closely-printed pages of this 
 record. It states uncontroverted facts and propositions of law for 
 the guidance of the jury. Many, perhaps all, of these statements 
 and propositions are correct. The exception of counsel for plaintiff 
 in error to each and every sentence of the charge given was therefore 
 unavailing. "If the entire charge of the court is excepted to, or a 
 series of propositions contained in it are excepted to in gross, and/ 
 any portion of what is excepted to is sound, the exception can not) 
 be sustained."^^ ' 
 
 '"Citing Northwestern Miit. Life Ins. Co. v. Stevens, 71 Fed. 258 (1895) ; 
 Railroad Co. v. Huston, 95 U. S. 702, 24 L. ed. ^^ (1S77) ', A'£?w York, N. H. 
 & H. R. Co. v. Blessing, 67 Fed. 277 (1895). Accord : Etting v. Bank of U. S., 
 II Wheat. (U. S.) 59, 6 L. ed. 419 (1826) ; State v. Gibbons, 10 Iowa 117 
 (1859) ; Pelley v. Wills, 141 Ind. 688, 41 N. E. 354 (1895) ; Consolidated Trac. 
 Co. V. Haight, 59 N. J. L. 577, 37 Atl. 135 (1896) ; Cunningham v. Davis, 175 
 Mass. 213, 56 N. E. 2 (1900) ; hJieskrll v. Fa rmers Sr AJrrhnp ir<f hint Rpnt-^ 
 ^V, ^^ ^'^^ (^^7*7) ; Indiana R. Co. v. Maurer, 160 Ind. 25, 66 N. E. 156 (1902) ; 
 Clark V. Morris, 30 App. (D. C.) 553 (1908) ; Pelham v. Chattahoochie Gro- 
 cery Co., 156 Ala. 500, 47 So. 172 (1908) ; Florida East Coast R. Co. v. Carter, 
 67 Fla. 335, 65 So. 254 (1914). So, also, instructions should not be given em- 
 bodying mere abstract propositions of law. Hathorn v. Stinson, 10 Maine 
 224 (1833) ; Mosaic Tile Co. v. Chiera, 133 Mich. 497, 95 N. W. 537 (1903) ; 
 Harden v. City of Moline, l7g 111. App. loi (1912) ; Maionica V. Piscopo, 217 
 Mass. 324, 104 N. E. 839 (1914). 
 
 ''Citing Union Pacific R. Co. v. Jarvi, 53 Fed. 65, 3 C. C. A. 433 (1892) ; 
 Gulf C. & S. F. R. Co. V. Washington, 49 Fed. 347, i C. C. A. 286 (iSgi) ; 
 Union Pac. R. Co. v. O'Brien, 49 Fed. 538, i C. C. A. 354 (1891) ; Eddy v. 
 Lafayette, 49 Fed. 807, i C. C. A. 441 (1891). Accord : Fleming v. Dixon, ' IQ4 
 Pa. St. 67, 44 Atl. 1064 (1899); Hcrbich v. North Jersey St. R. Co", 07 
 bi. J.~tr574, 52 Atl. 357 (1902) ; Virginia P. & P. Co. v. Patterson, 104 Va. 
 189, 51 S. E. 157 (1905) ; Stone v. Leiviston B. & B. R. Co., 99 Maine 243, 
 59 Atl. 56(1904) ; McGarry v. Healey, 78 Conn. 365, 62 Atl. 671 (1905) ; 
 Davis V. Diamond Carriage, &c. Co., 146 Cal. 59, 79 Pac. 596 (1905) ; Creachen 
 v. ^omley Bros Carpet Co., 214 P_a^.LS^_M-Atl ig.q (1906); MacFeat^vT 
 P- ^- cr B. R. Co., t) l^ennw. TDel.) 513, 69 Atr744 (1908); Amorsen v. 
 Swift, 243 111. 93, 90 N. E. 250 (1909). 
 
 '-Citing McClellan v. Pyeatt, 50 Fed. 686, I C. C. A. 613 (1891) ; Bracken 
 V. Union Pacific R. Co., 56 Fed. 447, 5 C. C. A. 548 (1893) ; Beaver v. Taylor,
 
 432 t:ciai. 
 
 The diargo of tlic court was concluded, and the jury retired to 
 consider their verdict, on January 20, 1895. The exceptions now 
 iirijed to certain siiecillc jiorlions of the charge lirst appeared in the 
 bill of exceptions, which was presented to and signed by the judge 
 who tried the case on February 23, 1895. These exceptions are 
 utterly futile. As early as November, 1892, the decision of this 
 court apprised counsel of this fact. In Price v. Pankhurst,^'-^ Judge 
 Caldwell, in delivering the opinion of this court, said : 
 
 "It is the duty of the party excepting to call the attention of 
 the court distinctly to the portions of the charge he excepts to, and 
 this must be done before the cause is finally submitted to the jury, 
 to the end that the court may have an opportunity to correct or 
 explain the parts of the charge excepted to, if it seems proper to do 
 so. The practice, which, it has been intimated at the bar, sometimes 
 obtains, of taking a general exception to the whole charge, with 
 leave to specify particular exceptions after the trial, is a plain viola- 
 tion of the letter and si)irit of the rule. The parly who conceives 
 that the charge is erroneous in any respect, and remains silent, will 
 not be heard to point out tb.e error after the trial ; and a general 
 exception to the whole charge, any part of which is good law, is 
 equivalent to silence. The rule is mandatory. Its enforcement does 
 not rest in the discretion of the lower court." This rule has been 
 repeatedly affirmed.^" 
 
 Judgment affirmed. 
 
 93 U. S. 46, 23 L. ed. 797 (1876) ; Lincoln v. Claflin, 7 Wall. (U. S.) 132, 
 19 L. ed. 106 (1868); Cooper v. Schlesinger, in U. S. 148, 28 L. ed. 382, 
 4 Sup. Ct. 360 (1884); Burton v. Ferry Co., 114 U. S. 474, 29 L. ed. 215 
 (1884) ; Rogers v. The Marshall, i Wall. (U. S.) 644, 17 L. ed. 714 (1863) ; 
 Moulor V. American Life Ins. Co., in U. S. 333, 28 L. ed. 447, 4 Sup. Ct. 
 466 (1884) ; Block V. Darling, 140 U. S. 234, 35 L. ed. 476. n Sup. Ct. 832 
 (1891). Accord: Walsh v. Kelly, 40 N. Y. s=;6 (1869); Stcffenson v. Chi., 
 M. & St. P. R. Co., 51 Minn. 531, 53 N. W. ^ (1892) ; Syndicate L Co. v. 
 Catchings, 104 Ala. 176, 16 So. 46 (1893) ; Luedtlcc v. Jeffcrv, 89 Wis. 136, 
 61 N. W. 292 (1894); Brozck V. Steinway R. Co., 161 N. "Y. 63 (1899); 
 Luce V. Hassam, 76 Vt. 450, 58 Atl. 725 (1904) ; Foote v. Kellcy, 126 Ga. 799, 
 55 S. E. 1045 (1906) ; Inland Steel Co. v. Smith, 168 Ind. 245]^ 80 N. E. 538 
 (1906). Contra: Dady v. Condit, 188 111. 234, 58 N. E. 900 (1900) ; Ellis v. 
 Leonard, 107 Iowa 487, 78 N. W. 246 (1899) ; Curtis v. Wins ton. 18 6 Pa! § ):. 
 492, 40 Atl. 786 (1898) ; Mastel v. Wa lk er, 24 6 Pa . 6.i. Q2 Atl. 63 (1914). 
 "•'53Fcd. 312 (1892). " ""^ 
 
 *°Citing Bracken v. Union Pac. R. Co., 56 Fed. 447, 5 C. C. A. 548 (1893) ; 
 Emanuel v. Gates, S3 Fed. 772, 3 C. C. A. 663 (1892) ; Sutherland V. Round, 
 57 Fed. 467, 6 C. C. A. 428 (1893) ; Park v. Bnshnell, 60 Fed. 583, 9 C. C. A. 
 138 (1894). Accord: Hickory v. United States, 151 U. S. 303, 38 L. ed. 170, 
 14 Sup. Ct. 334 (1894). Exceptions to the charge or to the refusal of instruc- 
 tions must be taken at the trial, but tlie precise time and manner is usually a 
 matter of local practice. See generally 38 Cvc. 1700 and Vaughan V. Porter, 
 16 \'t. 266 (1844) ; Illinois Cent. R. Co. v. Modglin, 85 III. 481 (1877) ; Hayes 
 V. Solomon, 90 Ala. 520, 7 So. 921 (1889) ; Spooner v. Cummings, 151 Mass. 
 313, 23 N. E. 839 (1890) ; Caroulte v. Williamson, 108 Cal. 135 (1895) ; Gehl 
 V. Mitojaukee Produce Co., n6 Wis. 263, 93 N. W. 26 (1903) ; Polykranas v. 
 Krausz, 73 App. Div. 583, 77 N. Y. S. 46 (1902) ; Broadivay Trust Co. v. Fry, 
 40 Misc. 680, 83 N. Y. S. 103 (1903) ; N. Y. Code Civil Proc. § 995; Nadeait 
 V. Sawyer, 73 N. H. 70, 59 Atl. 369 (1904) ; Block v. Great Northern R. Co., 
 106 Minn. 285, 118 N. W. 1019 (1908) : Lindsay v. Dutton,22ZP3^j2d&^j^s,-At\. 
 1096 (1910) ; Commonuicalth v. Johnston, 44 Pa. Super. Ct. 218 (1910);
 
 r 
 
 WHITNEY V. WELLESLEY & B. ST. R. CO. 433 
 
 WHITNEY V. WELLESLEY AND BOSTON STREET 
 RAILWAY COMPANY. 
 
 Supreme Judicial Court of Massachusetts, 1908. 
 
 197 Mass. 495." 
 
 Bradley, J.: If trial by jury is to retain its efficiency, the pre- 
 siding judge by means of suitable instructions must enable jurors to 
 see their way to a right verdict. The provisions of R. L. ch. 173, sec. 
 80, which first appeared in Gen. Stat. ch. 115, sec. 5, that "tlie courts 
 shall not charge juries with respect to matters of fact, but they may 
 state the testimony and the law," were not intended to destroy this 
 salutary power. In the construction of the statute it uniformly has 
 been held that, in charging juries, the judge, although prohibited 
 from stating his opinion as to the credibility of witnesses,*^ may sum 
 up the testimony according to his recollection, submitting its effect, 
 however, to their consideration and judgment, and leaving to them 
 for decision all issues of fact within tlieir province. He may eluci- 
 date the proper application of the legal principles involved by illus- 
 trations drawn from common experience, or by reference to cases 
 where similar questions have been decided, and define the degree of 
 weight which the law attaches to a whole class of testimony. In any 
 clear analysis of the evidence, however impartial, the attention of 
 the jury necessarily must be directed to the weight and Importance 
 of particular facts which they may find to have been proved. If an 
 unbiased analytical statement of the testimony and of the law dis- 
 tinctly indicates the party who is entitled to prevail, this furnishes no 
 just reason for the defeated party to complain, either of the method 
 employed or of the adverse verdict.^^ Besides, it is not a violation of 
 
 Qulmhy V. Jay, 196 Mass. 584, 82 N. E. 10S4 (1907). Where points for charge 
 are declined, it is not necessary to read them to the jury; it is better practice 
 not to read them. IValdie v. Doll, 29 Cal. 555 (1866) ; Ransom v. Christian, 
 56 Ga. 351 (1876) ; Sherman v. State, 17 Fla. 888 (1880) ; Walhe rt v. Trexler^ 
 i^ Pa. St. 112, 27 Atl. 6.=; (1893) ; Long v. Southern R. Co., 50 S. Car. 49, 27 
 STE. 531 (1897; ; Soper Lnn'wer Co. v. Halsted, 73 Conn. 547, 48 Atl. 425 
 (1901) ; Muthershauph v. McCabe, 22 Pa. Super. Ct. .S87 (190.1). 
 
 "Tlae""statement of facts and part ot the opinion of the court are omitted. 
 
 *^Chapman v. Erie R. Co., 55 N. Y. 579 (1874) ; Chicago & A. R. Co. v. 
 Robinson, 106 111. 142 (1883) ; Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894) ; 
 Jones V. Warren, 134 N. Car. 390, 46 S. E. 740 (1904) ; Sheppehnan v. People, 
 134 III. App. 556 (1907) ; Cleveland, C. C. & St. L. R. Co. v. Schneider, 40 
 Ind. App. 524, 82 N. E. 538 (1907) ; Central of Georgia R. Co. v. Sowell, 3 
 Ga. App. 142 (1907). Co mpare Simmons v. Penna. R. Co.. ioq Pa. 23 2, 48 
 Atl. 1070 (1901). 
 
 _ ^'At common law, the trial judge may express his opinion upon the 
 weight of the evidence, provided the ultimate decision of the questions of fact 
 is left to the jury. Petty v. Anderson, 3 Bingh. 170 (1825) ; Solarte v. Mel- 
 ville, 7 B. & C. 430 (1827) ; Dnrkee v. Marshall, 7 Wend. (N. Y.) 312 (i8y ) ; 
 Rowell V. Fuller, 59 Vt. 688, 10 Atl. 853 (1887) ; Brandt v. Frederick, 78 Wis. 
 I, 47 N. W. 6, II L. R. A. 199 (1890) ; Hiirlbnrt v. Hurlbnrt, 128 N. Y. 420, 28 
 N. E. 651, 26 Am. St. 482 (1891) ; Doyle v. Union Pac. R. Co., 147 U. S. 413, 37 
 L. ed. 223 (1893) ; Pool v. W hite. I7=; Pn /\^n i^ Afl Sot (1896) ; Cinder^ 
 v ^ Bachman, 8 Pa. Super. Ct. 4 05 (1898) ; Houghton v. New Haven, 79 
 2« — Liv. rROC. ■
 
 TRIAL 
 
 the constitutional requirement that judj^cs shall he as "free, Impartial 
 and independent as the lot of humanity will admit," if the instruc- 
 tions, while judicially fair, are comprehensively strong, rather than 
 hesitatin£;lv barren or inelVcctive, and neither the tone of a charge, 
 nor the form of verbal delivery are of themselves ground of excep- 
 tion, if no error of law apix^ars.^* In a word, the judge who dis- 
 charges the functions of his office Is, under the statute as well as at 
 common law, the directing and controlling mind at the trial, and not 
 a mere functionary to preserve order and lend ceremonial dignity to 
 the proceedings. 
 
 In the present case, under the exceptions taken at the close of 
 the charge, tlie defendant alleged a two-fold grievance, namely, 
 because the testimony had been incorrectly stated, and because the 
 comment upon it was argumentative,^^ rather than expository. The 
 first objection has been waived by tlie subsequent stipulation, that the 
 evidence had been correctly stated, and, to ascertain If the instruc- 
 tions are open to the second objection, the entire charge is to be 
 considered, and not isolated portions. The plaintiff sued for per- 
 sonal injuries received while a passenger on a car of the defendant, 
 and in defense it was said that her claim was a fraudulent Invention 
 to get damages. In her evidence she described the injury as being 
 on "her right leg, while a medical witness of the defendant, from a 
 phvslcal examination made shortly after the accident, directly con- 
 tradicted her, by locating it upon the left leg. But even then the 
 jury could say that, if the injury \vas proved, the distinction of mem- 
 Conn. 6;o, 66 Atl. 509 (1907) ; Mcrhlingcr v. Lambert, 76 N. J. L. 806, 72 Atl. 
 119 (1908). But in many states the court is restrained from commenting on 
 the facts or expressing an opinion upon the weight of the evidence. Salter v. 
 Myers, 5 B. Mon. (Kv.) 280 (1845) ; Evans v. Blackhart. 12 111. 195 (1850) ; 
 Wood v. Deutchman, 75 Ind. 148 (1881) ; Chieago & A. R. Co. v. Robinson, 
 106 111. 142 (1883) ; State v. Greer, 22 W. Va. 800 (1883) ; Lorie v. Adams, 51 
 Kans. 692, 2,3 Pac. 599 (1893) ; Hamlin v. Treat, 87 Maine 310, 32 Atl. 909 
 (1895) ; Tyler v. Chesapeake & O. R. Co., 88 Va. 389, 13 S. E. 975 (1891) ; 
 Supreme Lodge v. Lipscomb, 50 Fla. 406, 39 So. 637 (iQOS) ; Latimer v. 
 General E. Co., 81 S. Car. 374, 62 S. E. 438 (1908) ; Mitchell v. Masury, 132 
 Ga. 360, 64 S. E. 295 (1908). And in jurisdictions where the judge may com- 
 ment on the evidence, he must do so in a dispassionate manner. MP^ier v. 
 Phila. R c ip!d Trmt sit C o., 227 Pa. 273, 7 5 Atl. 1070 (1910) ; Valley Lumber Co. 
 v7 Smith,' 71 Wis. 304," 37 -N- ^^412, 5 Am. St. 2i6 (1888): Berkowits v. 
 Schlanger, 70 Misc. 239, 126 N. Y. S. 664 (191 1). 
 
 *• Accord: Reiger v. Davis, 67 N. Car. 185 (1872) ; Rotintree V. Gurr, 68 
 Ga. 292 (1881) ; Page v. Smiipter, S3 Wis. 652, II N. W. 60 (1881) -.Horton v. 
 TJ ir fhrvingfr^r <^-^r Cnnl f l/ ).. 2 Pennv. (Pa.) 21 _Ll882) ; Cibbs v. Johnson, 
 63 Mich. 671. 30 N. W. 343 (1886) ■,Bealv. Lowell &D7^t. R. Co., 157 Mass. 
 444, 32 N. E. 653 (1892) ; Motherway v. Wall, 168 Mass. 333, 47 N. E. 13S 
 
 *^The charge should be clear, direct and explicit, Morris v. Morris, 28 Mo. 
 114 (1859) ; Gafney v. .S7. Paul City R. Co., 81 Minn. 459, 84 N. W. 304 (1900) ; 
 Rondinell a \^Jlcirot>oHt_anLife Iiis ^o.. 24 Pa. Super . Ct. 29.3 (1904) . and not 
 argumentative. /Fray v. /:73'7f^TAtSr553, 17 bo. I80 ( 1894) ; UlJea v. Michigan 
 C. R. Co., 142 Mich. 265, 105 N. W. 746 (1905) ; Illinois Cent. R. Co. v. Colh- 
 son, 134 111. App. 443 (1907) ; Jones v. Monson, 137 Wis. 479, 119 N. W. 179 
 (1909). But the fact that particular instructions are argumentative is not 
 reversible error, where the charge, as a whole, properly advises the jury upon 
 the material issues. McCormick v. Parriott, Z2, Colo. 382, 80 Pac. 1044 (1905) : 
 Thrall v. Wilson. 17 Pa. ^nppr Tf ^76 (imiA.
 
 HUDSON V. MINNEAPOLIS, L. & M. R. CO. 435 
 
 bers was of little consequence. If, in his recapitulation of the testi- 
 mony, the judge dwelt upon this incident at great length, he did not 
 misquote the evidence, and it can not be said that the illustrations 
 used are wholly inappropriate. The real gravamen of the complaint 
 is, that they conveyed to the jury an argument in favor of the plain- 
 tiff. But if standing alone, there is some ground for this criticism, 
 as this portion of the charge should have been more cautiously ex- 
 pressed, upon his attention having been directed to the matter, the 
 judge in full and unexceptional language further instructed them 
 that not only were they to recall the evidence from having heard the 
 witnesses, and depend upon their own judgment as to its evidentiary 
 value, but also that what he had said by way of comment was only*® 
 to make plain the issues, which were solely for their determination. 
 Exceptions overruled.'*' 
 
 FREDERICK H. HUDSON v. MINNEAPOLIS, LYNDALE 
 ^ AND MINNETONKA RAILWAY COMPANY. 
 
 Supreme Court of Minnesota, 1890. 
 
 44 Minn. 52. 
 
 Appeal by plaintifif from an order of tlie District Court for 
 Hennepin county, Lochren, J., presiding, refusing a new trial. 
 
 Mitchell, J. : The ground upon which plaintiff moved for a 
 new trial was an alleged irregularity in the proceedings of the court. 
 The facts, as disclosed by affidavits presented by the respective 
 parties, and the statement of the judge who presided at the trial, 
 were as follows : After the jury had been charged, they retired in 
 the care of an officer to one of the jury-rooms to deliberate on their 
 verdict. Later in the afternoon, tJie judge, having completed the 
 other work of the day, but wathout adjourning court, retired to his 
 chambers in the same building. Although court had not adjourned, 
 yet, there being no one in the courtroom where the trial had taken 
 place, the officer in charge of the jury permitted them, in accord- 
 ance with a common practice, to come out of the jury-room into 
 
 *^New York Fireynen's Ins. Co. v. Walden, 12 Johns. (N. Y.) 513, 7 Am. 
 Dec. 340 (1815) ; Tracy v. Swartwout, 10 Pet. (U. S.) 80, 9 L. ed. 354 (1836) ; 
 Port er v. Sciler, 23 Pa. St. 424, 62 Am . Dec. 341 (1854) ; Illinois Cent. R. Co. v. 
 ''Davidson, 76 Fed. 517, 22 L. C A. 30b (1896). 
 
 *'Accord: Stewart v. Fuller, 208 Mass. 359, 94 N. E. 680 (iQli). The 
 court may read to the jury from the statutes applicable to the case. Sommer 
 V. Carbon Hill Coal Co., 107 Fed. 230, 46 C. C. A. 255 (1901) ; McNatt v. 
 McRae, 117 Ga. 898, 45 S. E. 248 (1902), or from decisions which state the 
 law correctly and are appHcable to the facts. Lett v. Horner, S Blackf. (Ind.) 
 296 (1840) ; In re Spencer, 96 Cal. 44S (1892) ; Henry v. Klopfer, 147 Pa. 
 178, 23 Atl. 337, 338 (1892), but not where the extract read is inapplicable or 
 misleadmg. Stiicke v. Mihvaukee & M. R. Co., 9 Wis. 202 (1859) ; Talmadge 
 V. Davenport, 31 N. J. L. 561 (1864) ; Dimes Sav. hut, v. Allentown Ban k 
 61 Pa. St. ^Qi (i869)r Stewart v. Hiinter, 16 Ore. 62, 16 Pac. 876, S Am. 
 St. 267 (1888) ; Lendberg v. Brotherion Iron Min. Co., 75 Mich. 48, 42 N W 
 C75 (1889).
 
 436 TRIAL 
 
 the courtroom, tlic latter beinj^ more commodious. After they had 
 deHberatcd there some tune, they notified tlie oflicer that they desired 
 further instructions from the judge. The officer communicated tliis 
 recjuest to the judge, and also notified the clerk of the court, and 
 then made diligent search throughout and around the court-house 
 for the counsel and parties connected \vith the case, but was unable 
 to find any of them, as they had all left. Theroui)on the judge, ac- 
 companied by the clerk and the sheriff, entered the court-room; the 
 jury in the meantime having taken tlieir seats together in the jury- 
 box as at the trial. The judge then resumed his seat upon the bench. 
 The ofticer, in answer to the inquiry of the judge, stated to him 
 that he had searched for the parties and their counsel, and could find 
 none of them about the court-house ; that none of them were in or 
 about it. The clerk then called the list of the jurors, who responded 
 to their names as called. The judge then asked them if they had 
 agreed upon a verdict, to which they responded that they had not. 
 The foreman, seconded by another juror, then asked the court a 
 question respecting a matter of law relating to the case. The judge 
 answered tlie question propounded, and then, together with all others 
 except the jury, retired from the court-room. All this w^as done pub- 
 licly, in the presence of the court officers, w^ith the doors of the court- 
 room open, in the day-time, in open session, and before any adjourn- 
 ment of the court for the day. It is also worthy of note, as indicating 
 how little real merit there was in the plaintiff's motion for a new 
 trial, that he does not claim that the instruction given was erroneous, 
 nor does he anywhere state what it w^as, or excuse himself for not 
 doing so by alleging that he does not know. We fail to see anything 
 irregular, or even lacking in courtesy, in tlie conduct of the court. 
 
 Counsel for plaintiff attempt, rather disingenuously as we tliink, 
 to use the fact that the jury had been let out into the courtroom so 
 as to convey tlie impression that the judge entered the jury-room 
 alone, and there held private communication with them respecting 
 the cause. But the fact tliat the jury had been deliberating in the 
 courtroom for a time, during the absence of others, is wholly im- 
 material. Under the facts stated, the instruction given by the judge 
 to the jury was not a privy communication, but a communication in 
 open court, and in the regular form of judicial proceedings.^^ Most 
 
 ^■"It is improper for the judge to communicate with the jury except in open 
 court after they have retired to deHberate upon their verdict. Bunn v. Crotil, 
 10 Johns. (N. Y.) 239 (1813) ; Cook V. Green, 6 N. J. L. 109 (1822) ; Benson 
 V. Clark, I Cow. (N. Y.) 258 (1823); Sargent v. Roberts, i Pick. (Mass.) 
 32>7, II Am. Dec. 183 (1823); Fish v. Smith, 12 Ind. 563 (1859); Somnter 
 v^ HubcjL ^S^ Pa. St. 162 38 Atl. S9S (1897) ; ffitrst v. Webster MfgTUo':; 
 'nS'Wis. 342, 107 N. W. 566 (1906) ; State v. Murphy, 17 N. Dak. 48, 115 
 N. W. 84, 17 L. R. A. (N. S.) 609 (1908) and note; Du Cate v. Brighton, 
 133 Wis. 628, 114 N. W. 103 (1907); Berst v. Moxom, 163 Mo. App. 123, 
 145 S. W. 857 (1912); Mound City v. Mason, 262 111. 392, 104 N. E. 685 
 (1914). Contra: Shapley v. White, 6 N. H. 172 (1833). In some cases 
 appellate courts have refused to reverse where the irregularity was trifling 
 and no prejudice shown. Galloway v. Corhitt, 52 Mich. 460, 18 N. W. 218 
 (1884) ; Mosley v. Washburn, 165 Mass. 417, 43 N. E. 182 (1896) ; State v. 
 Olds, 106 Iowa no, 76 N. W. 644 (1898) ; People v. Pickert, 26 Misc. 112, 56 
 N. Y. S. 1090 (1899).
 
 HUDSON V. MINNEAPOLIS, L. & M. R. CO. 437 
 
 of the cases cited by counsel refer to communications of the first 
 kind, and hence are not in point. Even in the case of Sargent v. 
 Roberts, i Pick. (Mass.) 337, which is a case of that kind, and lays 
 down a very strict rule, it is added: "No communication whatever 
 ought to take place between the judge and the jury after the cause 
 has been committed to them by the charge of the judge, unless in 
 open court, and, where practicable, in presence of the counsel in the 
 cause." The cases from Ohio involving communications in open 
 court were mainly controlled by a statute of that state, which re- 
 quired that all instructions should be given and the verdict received 
 "in the presence of, or after notice to, the parties or their counsel." 
 But even there it was held no error to receive a verdict or to give 
 instructions in the absence of the parties or their counsel, after they 
 had been loudly called at the court-house door, or, pursuant to a 
 previous understanding, had been notified by ringing the court-house 
 bell. Crusen v. State, lo Ohio St. 258; Preston v. Bozvers, 13 Ohio 
 St. I. Davis V. Fish, i G. Greene (Iowa) 406, was evidently decided 
 mainly upon the ground that the session of the court was held on 
 Sunday, and without any notice to the parties; the court clearly 
 intimating, however, that if the session had been on a business day, 
 and within reasonable hours, some reasonable effort to secure the 
 presence of the absent counsel or party, such as calling them at the 
 door, would be sufficient. 
 
 The trial of a case is not concluded until a verdict has been ren- 
 dered, or tlie jury has been discharged from the further considera- 
 tion of the cause, and it is the duty of the counsel to remain in or be 
 represented at the court during its sessions until the trial is ended. 
 The power of the court to recall a jury and give them additional in- 
 structions has never been questioned, and counsel and parties can 
 not, by absenting themselves from the court-room before the trial is 
 ended, take away this power, or suspend the right to exercise it 
 until tliey can be found and brought in. It is no part of the duty of 
 the court to dispatch messengers to hunt up absent parties or counsel, 
 and to suspend business until tliey return. A proper regard for the 
 dispatch of public business in our courts forbids any such thing. 
 It is customary to send for counsel when the jury come into court 
 for further instructions, and to wait a reasonable time for tliem to 
 return. It is eminently proper and very desirable that this should 
 be done whenever it conveniently can be, for a court is, and always 
 ought to be, unvv^illing to give any instructions, if it can be avoided, 
 without affording counsel a full opportunity to suggest corrections 
 or additions; and Vv-e have no desire to do anything that would in 
 any way tend to a disregard of those usages and customary forms 
 designed to insure a fair and impartial trial of causes in courts of 
 justice. But the practice of sending for parties or counsel who have 
 absented themselves before the end of the trial is a matter of court- 
 esy, and not of right, Wiggins v. Downer, 6y How. Pr. (N. Y.) 65 ; 
 Cornish v. Graff, 36 Hun. (N. Y.) 160; Cooper v. Morris, 48 N. J. 
 L., 607; Alexander v. Gardiner, 14 R. I. 15; Chapman v. Chicago 
 and N. Y. Ry. Co., 26 Wis. 295; Danntley v. Hyde, 6 Jur. 133. 
 Hoberg v. State, 3 Minn. 181, 262, involved a case of a private com-
 
 4^1^ TUIAL 
 
 munioatioii by the judfjc to the jury after they luiJ retired to deliber- 
 ate on tiieir verdict. Aloreovcr that was a prosecution for a felony, 
 wiicrc a more strict rule is usually ai)plied than in civil actions, or 
 even prosecutions for misdemeanors, cs[iecially with reference to the 
 personal presence of the accused during all the proceedings had at 
 the trial. 
 
 In view of the result reached on the merits, we have not found it 
 necessary to consider the ciuestion of practice as to whether proof 
 of an irregularity of this kind can be made by affidavit, or whether 
 the facts must be incorporated into a case or bill of exceptions. 
 See, however, People v. Kelly, 94 N. Y. 526. 
 
 Order affirmed.^^ 
 
 / 
 
 SECTION 10. CUSTODY AND CONDUCT OF JURY. 
 
 BISHOP OF L. V. EARL OF KENT. 
 
 Exchequer Chamber, 1499. 
 
 2 Brooke's Abridgement, 309 pi. ig."^ 
 
 In the exchequer chamber the case was that at the nisi prius 
 in tlie county of Bedford, upon issue between the Bishop of L. and 
 the Earl of Kent, the jury w^as sworn at the bar, and when the evi- 
 dence was being given to them, there came such a tempest of thunder 
 
 **"The court has a large discretion in the matter of giving additional 
 instructions after the jury has retired for deUberation, and may supplement 
 the original charge whenever confident that the ends of justice will be best 
 subserved by doing so. * * * Only in case of abuse, resulting in injury to 
 some substantial right, will an exercise of such discretion be reviewed." 
 Carter v. Becker, 69 Kans. 524, yy Pac. 264 (1904). Accord: Bank of Kentucky 
 V. McWilliants, 2 J. J. Marsh. (Ky.) 256 (1829); Lee v. Quirk, 20 111. 392 
 (1858) ; Sittig v. Birkestack, 38 Md. 158 (1873) ; Nichols v. Miinscl, 115 Mass. 
 567 (1874) -.JjirjS ffigh/ry, icY^ Pa .Sf. ^/jp (jP^9.'t ; People V. Perry, 65 Cal. 
 568, 4 Pac. 572 (1884) ; Brccdlove v. Biindylgdlnh. 319 (1884) ; Phillips v. Neiv 
 York Cent. & H. R. K. Co., 127 N. Y. 657, 27 N. E. 978 (1891); Allis v. 
 United States, 155 U. S. 117, 39 L. ed. 91, 15 Sup. Ct. 36 (1894) ; Miller jv. 
 Rovnl Flint Glass Works. 172 Pa. St. 70 , 23 Atl. 350 (1895) ; Rafnger v. 
 Boston Mut. Life Assn., 167 Alass. log, 44 N. E. 1088 (1896); Douglas v. 
 Metropolitan St. R. Co., 119 App. Div. 203, 104 N. Y. S. 452 (1907) ; Charlton 
 V. Kelly, 156 Fed. 433 (1Q07) ; Traders & Truckers Bank v. Black, 108 Va. 59, 
 60 S. E. 743 (1908) ; Holland v. Shcehan, 106 Alinn. 545, 119 N. W. 217 (1909) ; 
 First Nat. Bank v. Hedgecock, 87 Nebr. 220, 127 N. W. 171 (1910) ; In re 
 Darrow, 175 Ind. 44, 92 N. E. 369 (1910) ; Harrcll v. Columbia Elec. St. R. 
 &c. Co., 89 S. Car. 97, 71 S. E. 359 (1911) ; Humphrey v. Monida &c. Stage 
 Co., 115 Minn. 18, 131 N. W. 498 (1911); Check v. Nicholson (Tex. Civ. 
 App), 146 S. W. 594 (1912) ; Ruck V. Milwaukee Brew. Co., 148 Wis. 222, 
 134 N. W. 914 (1912) ; Gotoskcy v. Grawunder (Tex. Civ. App.), is8 S. W. 
 249 (1913) ; IValczakowski v. Mihvankee Elec. R. & Light Co., 157 Wis. 191, 
 147 N. W. 20 (1974); Gay v. Gay, 74 W. Va. 800, 83 S. E. 75 (1914). 
 Contra: Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401 (1906) 
 statute; Randolph v. Govan, 22 Miss, g (1850) semble. 
 
 ""Translated. The abridged case is reported at length in Y. B. 14 Hen. VIT, 
 29. The opinion of Keble, J., concurring with Woode, J., is reported in Y. B. 
 15 Hen. VH, i. The substance of the case is given in the notes to King v. 
 Woolf, I Chitty 401 (1819), and Smith v. Thompson, 1 Cow. (N. Y.) 221 
 (1823).
 
 BISHOP OF L. V. EARL OF KENT 439 
 
 and rain that some of the jury departed without leave of the justices 
 (it seems that they stood open In the street) and a juror came into a 
 house where divers said to him that he take care what he did, for 
 the matter was better for the Earl of Kent than for the bishop ; and 
 prayed him to drink with them, and so he did ; and after the tempest 
 ceased the jury came back, and no challenge taken to them,^^ and 
 they were sent into an inn, and when they were agreed to give their 
 verdict, the Earl of Kent showed this matter to the justices, who de- 
 manded it of the jury, who confessed it; and it was demanded if 
 they were agreed in their verdict, who said yes ; and found for the 
 bishop. And the justices were in doubt if the verdict was good, 
 wherefore they were adjourned. And per Woode, J., the juror shall 
 make fine; but the verdict is good and not void. But Vavisor, J., 
 contra ; and that jurors are like prisoners till they have given their 
 verdict ; for the not giving of the evidence is not material, for if no 
 evidence was given, yet they shall give their verdict for the one 
 party or the other, and the earl has not surceased his time to show 
 this matter, and at least he may show it amicus curiae; but Rede, J., 
 contra ; for the cause of the departure was lawful. For the law is 
 the same if there comes a sudden affray, and the law is the same 
 if the house be on the point of falling down. But they shall make 
 fine for eating and drinking, for this is a contempt, but the verdict 
 is good and not void ; and where they have agreed on their verdict — 
 and take food and drink after the agreement and before the verdict, 
 that shall not render the verdict void. And here it is not void, for he 
 who gave him drink did not entreat him for the Earl of Kent, and 
 also tlie verdict is given against the Earl. Note the diversity ; and 
 Davers, J., accordingly, and that if a deed which accords with the 
 issue and is not prejudicial to either party is put before the jurors in 
 the house, that shall not render the verdict void, and if a party gives 
 money to the jury which passes against him, still the verdict is good 
 and contra if it passes for him, and agreed with Vavisor, that the 
 party had not surceased his time, and also that he might show it as 
 amicus curiae; and Tremaile, J., agreed with Rede in omnibus. And 
 that where there are two triers in a house and one of them drinks, 
 which was confessed, but not at the cost of any party, their verdict 
 is good, but they shall be fined. And at this time Prisot, J., Hody, 
 C. B., and Brian, J., contra, who held the taking of the meat and 
 drink before that they were agreed shall make the verdict void, not- 
 v/ithstanding that it was not at the costs of any party ; but Fineux, 
 J., contra, and that the verdict is good, and that the juror shall make 
 fine, and agreed with Rede in omnibus; and as to the surceasing of 
 the time and amicus curiae, agreed with Vavisor, and adjornatur. 
 
 "^When informed of misbehavior by the jury it is incumbent on counsel 
 to move promptly in the matter and not sit silently by and speculate upon the 
 result. Cooper v. Carr, i6i Mich. 405, 126 N. W. 468 (1910) ; Brooks v. 
 Camak, 130 Ga. 213, 60 S. E. 456 (1907) ; Western Roofing Co. v. South Park 
 Baptist Church, 137 Mo. App. loi, 119 S. W. 495 (1909) ; Francis y. Phila- 
 delphia. &-C., R- Co.. 13 Mont. County L. Rep. (Pa.) 176 (1897) ; McLorHle VT 
 Binns, 5 Binn. QPa.) 340, 6 Am. Dec. 420 (1812).
 
 -J.JO 
 
 TI^IAT, 
 
 Anil so the best opinion was that, tuic sliall he made, and the verdict 
 good and not void.'- 
 
 WILSON V. ABRAHAMS. 
 
 Supreme Court of New York, 1841. 
 I Hlirs Retorts C07 
 
 The trial of this cause at the Albany circuit lasted nearly two 
 davs, and when the court adjourned for rest or refreshment in the 
 progress of the trial, the jurors were allowed to separate. During 
 the adjournment for dinner on the second day of the trial, one of the 
 jurors went into a tavern near tlie city hall, and drank about half a 
 gill of brandy. This was before the evidence had been closed. The 
 jury afterwards rendered a verdict for the plaintiff for ten dollars 
 damages, which being much less than he supposed himsejf entitled 
 to recover, he now moved to set aside the verdict for tlie misbehavior 
 of the juror. There was no allegation that the juror was intoxicated, 
 or that the drinking was at the request or expense of either party, 
 or rendered him less capable than he was before for the proper dis- 
 charge of his duty.^^ 
 
 Broxson, J. : In civil cases, when the court adjourns for refresh- 
 ment in the progress of a trial, and before the cause is finally com- 
 mitted to the jury, it is now the usual course to allow the jurors to 
 separate and return to their families or boarding houses for food 
 and rest ; and if one of them drinks a glass of spirituous liquor while 
 so absent from court, I can not think it sufficient ground for setting 
 aside the verdict, unless there is some reason to suppose that the 
 juror drank to excess, or at the expense or on the invitation of one 
 of the parties. I agree that it would be well that all men should 
 abstain from the use of intoxicating drinks; but until that senti- 
 ment becomes nearly or quite universal, I think it should not be 
 imposed as a law upon a juror in these cases where he is permitted 
 for a night or an hour to go w^heresoever he pleases without being 
 attended by an officer. To adopt the language of Parke, J., in 
 Everett v. YoncUs, (4 Barn. & Adol. 681), where food was secretly 
 delivered to the foreman, after the jury had retired to consider 
 their verdict, "it would be a fearful thing if verdicts could be set 
 aside on such grounds as this." We might expect to see many ver- 
 dicts overturned.^* 
 
 ^Ko. Lit. 227; Y. B. 24 Edw. Ill 24; Y. B. 2 Hen. IV 21, 22; Y. B. 14 
 Hen. VII I. A separation o£ the jurors when considering their verdict 
 induced by a sudden alarm of fire in a building within less than one hundred 
 and fifty feet of the jury room, is not, of itself, such misconduct as will 
 vitiate the verdict. Armleder v. Lieherman, 33 Ohio St. 77, 31 Am. Rep. 530 
 (■1877). As to criminal procedure see Rex v. Kettcridge, 112 Law Times 783 
 (191.O. . . 
 
 "Part of the opinion of the court is omitted. 
 
 "At common law, if the jurors, before verdict, ate or drank at their own 
 expense, they were subject to a fine, but the verdict was not void; if at the 
 cost of a party to the suit the verdict would be set aside. Anonymous,
 
 WILSON V. ABRAHAMS 441 
 
 When in the course of the trial, a juror has in any way come 
 under the influence of the party who afterwards has the verdict, or 
 there is reason to suspect that lie has drunk so much, at his own 
 expense, as to unfit him for the proper discharge of his duty, or 
 where he has so grossly misbehaved himself in any other respect as 
 to show that he had no just sense of the responsibility of his station, 
 the verdict ought not to stand. But every irregularity which would 
 subject the juror to censure, whether in drinking spirituous liquor, 
 separating from his fellows, or the like, should not overturn the 
 verdict, unless there be some reason to suspect that the irregularity 
 may have had an influence on the final result.^^ 
 
 There is no pretence in this case, that the juror either drank to 
 excess, or at the expense of the defendant, and we think the verdict 
 should not be disturbed. 
 
 Motion denied.^^ 
 
 I Dyer 27 (i53S); Trewennarde v. Skewys, i Dyer 55 (1544) ; Anonymous, 
 I Dyer 218 (1562) ; Saunders v. Freeman, i Plowd. 209 (1562) ; Welcden v. 
 Elkington, 2 Plowd. 516 (1578); Mounson v. West, I Leon. 132 (1588); 
 Mounson v. IVest, Goldsb. 93; Harebottle v. Placock, Cro. Jac. 21 (1603); 
 King v. Burdctt, 2 Salk. 645 (1697) ; King v. Biirdett, 12 Mod. iii, i Ld. 
 RajTn. 148; Everett v. Youells, 4 B. & Ad. 681 (1833) ; Morris v. Vivian, 10 
 M. & W. 137 (1842). Compare Cooksey v. Haynes, 27 L. J., N. S., Exch. 371 
 (1858), where a jury covertly procured victuals and liquor, and the court 
 ordered a new trial. And see Hanrahan v. Ayres, 10 Misc. 435, 31 N. Y. S. 
 458, 64 N. Y. St. 12 (1894). 
 
 ^^Compare Rose v. Smith, 4 Cow. (N. Y.) 17, 15 Am. Dec. 331 (1825) ; 
 Repalh v. Walker, 13 Colo. 109, 21 Pac. 917 (1889) ; Bernier v. Anderson, 8 
 Idaho 67s, 70 Pac. 1027 (1902) ; Underzvood v. Old Colony St. R. Co., 31 
 R. I. 253 (iQio). with McCausland v. McCansland, i Yeates (Fa.) 372 (1794) ; 
 Richardson v. Jones, I Nev. 405 (1865); State v. Ciicucl, 2)i N. J. L. 249 
 (1865) ; Hanrahan v. Ayres, 10 Misc. 435, 31 N. Y. S. 458, 64 N. Y. St. 12 
 (1894) ; Hemmi v. Chicago G. W. R. Co., 102 Iowa 25, 70 N. W. 746 (1897) ; 
 Gorham v. Sioux City Stock Yards Co., 118 Iowa 749, 92 N. W. 698 (1902) ; 
 Elnine y. Chambers, T .Serg. & R. (Pa .) 169^^14') ; Long V. Davis, 136 Iowa 
 734, 114 N. W. 197 (1907) ; St. Louis Belt, &c., R. Co. v. Cartan R. E. Co., 204 
 Mo. 565, 103 S. W. 519 (1907) ; Walsh v. Winston, 18 Idaho 768, iii Pac. 1090 
 (1910). 
 
 ^''It has generally been held that during the trial of a civil case and 
 before final submission the court may, in its discretion, permit the jury to 
 separate for rest and refreshments, first admonishing them not to talk about 
 the case with others. Noel v. Denman, 76 Tex. 306, 13 S. W. 318 (1890) ; 
 San Antonio & A. P. R. Co. v. Bennett, 76 Tex. 151, 13 S. W. 319 (1890) ; 
 Welch V. Welch, 9 Rich. L. (S. Car.) 133 (1855) ; Morrow v. Saline Co., 21 
 Kans. 484 (1879) ; Stancell v. Kenan, 33 Ga. 56 (1861) ; Abel v. Hitt, 30 Nev. 
 93, 93 Pac. 227 (1908) ; Guardian Fire Ins. Co. v. Central Glass Co., 194 Fed. 
 851 (1912). And even after the submission of the case the separation of the 
 jury, although irregular, will not warrant a reversal, if it appears that neither 
 party was prejudiced thereby. Brandin v. Grannis, I Conn. 402n. (1814); 
 Crane v. Sayre, 6 N. J. L. no (1822). Compare Shepherd v. Baylor, 5 N. J. L. 
 827 (1820) ; Smith v. Thompson, I Cow. (N. Y.) 221 (1823) ; Wright v. Burch- 
 ficld, 3 Ohio 53 (1827); Harter v. Seaman, 3 Blackf. (Ind.) 27 (1832); 
 Pulaski v. Ward, 2 Rich. L. (S. Car.) 119 (1845) ; Riggins v. Brown, 12 Ga. 271 
 (1852) ; Dozvner v. Baxter, 30 Vt. 467 (1857) ; Evans v. Foss, 49 N. H. 490 
 (1870); Eich V. Taylor, 20 Minn. 378 (1874); Armleder v. Lieberman, t,:^ 
 Ohio St. 77, 31 Am. Rep. 530 (1877) ; Carter v. Ford Plate Glass Co., 85 Ind. 
 180 (1882) ; Watts V. South Bound R. Co., 60 S. Car. 67, 38 S. E. 240 (1900).
 
 44^ 
 
 TRIAL 
 
 ^ 
 
 GULF. COLORADO AND SANTA FE RAILWAY COMPANY 
 1'. ]\L\TTIIEWS FT AL. 
 
 Court of Civil Aiteals of Texas, 1902. 
 28 Tex. C'xv. An- 92. 
 
 Trmpleton, J.: The defendants in error, who are the wife and 
 minor children of J. L. IMatthcws, deceased, brought this suit to 
 recover damages sustained by them on account of his death, which 
 it was alleged was occasioned by the negligence of the plaintiff in 
 error. On a trial before a jury they obtained judgment for $10,000." 
 
 Pending the trial of this case in the district court, one of the 
 jurors, who was afterwards selected as foreman of the jury, and 
 J, \^ . W'oolsey, whose mother was a sister of J, L. Matthews, met 
 during a recess of the court. The juror set up the drinks to Woolsey. 
 They then had dinner together, Woolsey paying therefor. After 
 dinner the juror bought cigars for both. They had a private con- 
 versation on the streets, which lasted several minutes. Woolsey was 
 looking after and managing the cause for Mrs, Matthews, He em- 
 ployed the attorneys for the plaintiffs and w^ent to Fort Worth to 
 look up testimony. Lie boarded at the same hotel with Mrs. Mat- 
 thews during the trial. Woolsey and the said juror lived at White- 
 wright, where they were in business. They wxre intimate friends. 
 They testified that the case was not mentioned; that their meeting 
 was accidental and tliat their conversation was of a purely social na- 
 ture. The juror bore a good reputation. These facts were shown 
 on the hearing of defendant's motion for a new trial and were in- 
 sisted upon as a reason why tlie motion should be granted. We are 
 of opinion that the point was well made, and that the trial court 
 erred in not sustaining tlie motion upon that ground. 
 
 The importance of guarding a jury engaged in the trial of a cause 
 from improper influences is too well understood to require argument. 
 While Woolsey w^as not a party to this suit and had no pecuniary in- 
 terest in it, his connection with the case was such that it was mani- 
 fest impropriety for a juror to exchange courtesies with him. The 
 juror may have been entirely innocent of any wrong intention, and 
 it is even possible that the eating, drinking, smoking, and social 
 intercourse with the kinsman and manager of the plaintiffs did not 
 affect his verdict. However, such conduct was reasonably calculated 
 to do so, and may have done so without the juror knowing it. No 
 matter how innocent the parties may have been, their conduct was 
 improper, and it is impossible to say that injury to the defendant 
 did not result from It. The only safe rule to adopt upon a question 
 like this is to require of the jurors and interested parties such cir- 
 cumspection as will prevent all suspicion of improper influence. The 
 jurors and parties should keep strictly aloof from each other pend- 
 ing the trial, and if they do not, but meet under circumstances from 
 which injury to the other party may be reasonably apprehended, a 
 verdict for the party engaging in intercourse with the juror can not 
 
 ''Part of the opinion is omitted.
 
 ALEXANDER V. JAMESON ( 443 
 
 be sustained. Such a transaction is incapable of explanation. If 
 parties were permitted to excuse improper conduct of this character 
 on the ground that no wrong was intended and probably no injury 
 was done, it would be impossible to draw the line anywhere short 
 of absolute corruption. We are unwilling to lend encouragement to 
 practices which, if tolerated, would undermine the purity and efii- 
 ciency of our jury system. 
 
 The authorities bearing on this question are numerous and some- 
 what conflicting. In Marshall v. Watson, lo Tex. Civ. App. 127, 40 
 S. W. 352, the authorities upon which our conclusion is based are 
 collated and reviewed. We concur in the views there expressed, 
 and have found no Texas case which announces a different rule.^^ 
 
 Reversed and remanded. 
 
 /^ 
 
 ALEXANDER v. JAMESON. 
 
 Supreme Court of Penns ylvania, 1812. 
 5 Bin. (Pa.) 238.'' 
 
 Tilghman, C. J. : This was an issue directed by the orphans' 
 court of Franklin county, to try who were the heirs of a certain 
 John Alexander, deceased. The defendants gave in evidence a 
 
 ^^Accord: Sloan v. Harrison, l N. J. L. 123 (1792) (party talks to juror) ; 
 Knight v. Freeport, 13 Mass. 218 (1816) (witness talks to juror) ; Cosicr^v. 
 Merest, 3 Br. & Bing. 272 (1822) (hand bills distributed reflecting on plain- 
 tiff) ; Turner v. Beardslcy, 19 Wend. (N. Y.) 348 (1838) ; Martin v. More- 
 lock, 32 111. 485 (1863) (attorney converses with jurors) ; McDaniel V. Mc- 
 Daniels, 40 Vt. 363, 94 Am. Dec. 408 (1867) (friends of party talk to jurors) ; 
 Erwin v. Bulla, 29 Ind. 95, 92 Am. Dec. 341 (1867) ; Kecgan y . McCandlcss_, 
 ^_ Phila. (Pa.) 248 (1869) (party treats juror) ; HamUionw. Pease, sS^Conn. 
 115 (1871); Piatt v. Threadgill, 80 Fed. 192 (1897) (cigars for jurors); 
 Austin & McCargar v. Langlois, 81 Vt. 223 (1908) (counsel plays cards with 
 jurors); Stcenburgh v. McRorie, 60 Misc. 510, 113 N. Y. S. Iii8 (1908) 
 (cigars for jurors) ; Matter of Vanderhilt, 127 App. Div. 408, III N. Y. S. 558 
 (1908) (extra pay for jurors) ; State v. Reid, 120 La. 200, 45 So. 103 (1907) 
 (treating); Craig v. Picrson Lumber Co., 169 Ala. 548, 53 So. 803 (1910) 
 (treating) ; Godfrey v. Dalquist, 27 S. Dak. 373, 131 N. W. 209 (1911) (party 
 and juror drink together) ; Solomon V. Loud, 17s Mich, 233, 140 N. W. 651 
 (1912) (paying a juror not in the case to watch the jurors) ; Van Loon v. St. 
 Joseph R., &c. Co., 174 Mo. App. 372, 160 S. W. 63 (1913) ; Sandstrom v. 
 Oregon, &c., R. Co., 69 Ore. 194, 136 Pac. 878, 43 L. R. A. (N. S.) 889 (1913) 
 (treating) ; In re Qiiinn's Estate, 180 Mich. 502, 147 N. W. 566 (1914)- Com- 
 pare, where the irregularity was held insufficient to vitiate the verdict, Barlowe 
 V. State, 2 Blackf. (Ind.) 114 (1827) ; Mcllvaine v. Wilkins, 12 N. H. 474 
 (1841) ; Koester v. Ottiinnva, 34 Iowa 41 (1871) ; Borland v. Barrett, 76 Va. 
 128, 44 Am. Rep. 152 (1882) ; Vane v. Evanston, 150 111. 616 (1894) ; Prit ch- 
 ard V. Henderson, 3 Pennew. (Del.) 128, 50 Atl. 217 (1901) ; Peary v. Metro- 
 politan St. R. Co., 162 Mo. 75, 62 S. W. 452 (1901) ; Ayrhart v. JVilhelmy, 
 135 Iowa 290, 112 N. W. 782 (1907) ; Deighton v. Hover, 58 Wash. 12, 107 
 Pac. 853 (1910) ; Beach Front Hotel Co. v. Sooy, iC)7 F'ed. 881, 118 C. C. A. 
 579 (1912) ; Lints V. Denver City Tramway Co., 54 Colo. 371, 131 Pac. 258 
 
 (1913). 
 
 ""The statement of facts, arguments of counsel and concurrmg opmions 
 are omitted.
 
 444 TRIAL 
 
 maiuiscript book found in the trunk ot tlic said Alexander after his 
 death. \Vhcn the jury were about to retire, the counsel for the 
 phiintirt's objected to their being permitted to carry this book out 
 with them; but the court were of opinion that the jury should have 
 it, to which opinion an exception was taken, on which we are now 
 to decide. It is no longer a c^ucstion whether the book was legal 
 evidence, but the naked ]>oint is, wliether, having been given in 
 evidence, tlie court might i^crmit tb.e jury to take it out with them. 
 It is untloubtediy laid down as a principle in some of tlie English 
 cases that the jury are to take no papers not under seal without the 
 consent of both parties ;°" yet the same cases say that if the court 
 permit them to be taken, it shall be no cause for setting aside the 
 verdict. \\'e are somewhat in the dark as to the reason of this dis- 
 tinction between sealed and unsealed writings, but it is certain 
 that it originated under circumstances not applicable to the present 
 time. The best account of it is to be found in the writings of Lord 
 Hale and Lord Gilbert.^^ They say that in ancient times, men of rank 
 and property had seals by which their families were distinguished. 
 Those were not numerous ; and as causes were tried by men in the 
 neighborhood, it was supposed that the seals were so notorious as to 
 be well known to the jury. Papers under seal, therefore, carried 
 their own evidence along with them; and indeed it is probable that 
 in many instances it was thought sufficient to affix a seal without 
 any subscribing witness, so that the instrument was authenticated by 
 the seal alone. But the notoriety of seals has long ceased. Every 
 man now takes vvhat seal he pleases. They are no longer a family 
 distinction, and so far has it been carried in this and some other 
 states, that a flourish with the pen in the place of a seal has been 
 held equivalent to a seal. It is to be observed, that although the rule 
 is laid down as I have mentioned in the luiglish books, yet it does 
 not appear that the point has been brought before any court for the 
 last half century, during which period the commerce of the world 
 has been prodigiously enlarged, and commercial people make very 
 little use of seals in their transactions. I have never known this 
 question expressly decided in Pennsylvania; but I take it, that in 
 practice, the English rule has not been extended here. It has been 
 our custom to deliver to the jury all written papers except deposi- 
 tions taken under rule of court. These have been withheld, because 
 it has been thought unequal, that while the jury were not permitted 
 to call the witnesses before them who had been examined in court, 
 they should take with them the depositions of other witnesses not 
 examined in court.*^- After the uniform practice which has pre- 
 
 n". B. n Hen. IV, 17; Y. B. 34 Hen. VT, 25; Vtcary v. Farthing Co.. 
 Cro. Eliz. 411 (1595) ; Grazes v. Short, Cro. Eliz. 616 (1599) ; Olive v. Guin, 
 2 Siderf. 145 (1658) ; Lord Petre v. Heneage, 12 Mod. 519 (1702) ; Farmers^ 
 Bank V. Whinficld, 24 Wend. (N. Y.) 419 (1840). 
 
 "Hale's Pleas of the Crown, 307; Gilbert on Evidence, 22; Co. Litt. 227b. 
 See TU Holdsworth's Hist. Eng. Law, 196, 324. 
 
 •"Accord: Negro Jerry v. ToiL'tisend, 9 Md. 145 (1856); Rawson v. 
 Curtiss, 19 III. 4S6 ('i8:;8^ ; Shnmo y Zeigler, 10 Phila. _X£a.l_ 6jl. 31 Leg. 
 Int. 205 (1874) ; Cockrill v. Hall, 76 Cal. 192. 18 Pac. 31S (1888) ; Chamber- 
 lain V. Pybas, 81 Tex. 511, 17 S. W. 50 (1891) ; Graham v. Citizens' Bank, 45
 
 ALEXANDER V. JA:MES0N 445 
 
 vailed in this state, I can not consent to the establishment of a rule 
 which in many cases would produce confusion and injustice. I have 
 witnessed the trial of many causes, particularly of the mercantile 
 kind, in which the jury could not decide without the aid of unsealed 
 papers ; causes which required the minute and laborious investiga- 
 tion of a variety of books and papers, in which long calculations 
 were necessary, founded on accounts and entries. To tell the jury 
 that they must form their verdict on the recollection of what passed 
 at the bar, would be imposing on them a most unreasonable duty. 
 Under such circumstances, they could do no more than make a 
 vague guess at tlie truth, and their verdict might be an abuse instead 
 of a satisfactory administration of justice. I am of opinion there- 
 fore that the court of common pleas had a right to permit the jury 
 to take out with them the book which had been given in evidence, 
 and that the judgment should be affirmed. 
 
 Yeates, J., and Brackenridge, J., delivered concurring opinions. 
 
 Judgment affirmed.^^ 
 
 W. Va. 701, 32 S. E. 24s (1898) ; L. H. & St. L. R. Co. v. Morgan, no Ky. 
 740 (1901) ; Standard S. Co. v. McMiillen, 100 111. App. 82 (iQoi) ; Winter- 
 mute V. Furniture Co., 53 Wash. 539 (1909). Contra: Wakeman v. Marquand, 
 5 Martin (La.) (N. S.) 26s (1826) ; Hopkinson v. Steel, 12 Vt. 582 (1840) ; 
 Stitcs V. McKihhen, 2 Ohio St. 588 (1853); Hozvland v. Willets, 9 N. Y. 
 170 (1853) ; Hansborough v. Stinnett, 25 Grat. (Va.) 495 (1874). Matter rests 
 in discretion of judge. Whitehead V. Keyes, 85 Mass. 495 (1862) ; Kratiss v. 
 Cope, 180 Mass. 22, 61 N. E. 220 (1901) ; Koosa v. Wart en, 158 Ala. 406, 48 
 80.544(1909). 
 
 '^Accord : The papers to be taken out resting In the court's discretion, 
 rrHnrn v. Rirhnrdxnn. 46 Pa. St. 385 C l86.^) ; Porter V. Mount, 45 Barb. (N. 
 Yr)r422(l865) ; Clark v. Phoenix Ins. Co., 36 Cal. 168 ( 1868) . See Cal. Code (Ziv. 
 Proc. (1915), § 612; Collins v. Frost, SA Ind. 242 (1876) ; Tabor v. Jxidd, 62 
 N. H. 288 (1882} ; Hickman v. Ford, 43 Ark. 207 (1884) ; Barker v. Perry, 
 67 Iowa 146, 25 N. W. 100 (1885) ; Kittq nina I. Co. v. O'Neil. no Pa. St . 
 548, I Atl. 592 (1885) ; Mooncy v. HoJigJi, 34 Ala. 80, 4 So. 19 (1887) ; Tuhhs 
 V. Dwelling-House Ins. Co., 84 Mich. 646, 48 N. W. 296 (1891); Chicago &■ 
 J. E. R. Co. V. S pence, 213 111. 220, 72 N. E. 796, 104 Am. St. 213 (1904) ; 
 Raynolds v. Vinier, 12$ App. Div. 18, 109 N. Y. S. 293 (1908) ; Phillips v. 
 Chase, 201 Mass. 444, 87 N. E. 755 (1909) ; Johnson v. Fairbank Co., 156 111. 
 App. 381 (1910). Contra: Unless by consent. Lots v. Briggs, 50 Ind. 346 
 (1875) ; Williams V. Thomas, 78 N. Car. 47 (1878) ; Moore v. McDonald, 68 
 Md. 321, 12 Atl. 117 (1887) ; Watson v. Watson, 12,7 Ky. 25, 121 S. W. 626 
 (1910). Notes of testimony should not be given to the jury. Commonwealth 
 v _Wnre^ T37 Pa. S\. /\6,K (1890^ ; Crisman V. McMurray, loj' Tenn. 469, 64 
 S. W. 711 (1901). Nor documents not in evidence. Whitney v. Whitman, 5 
 Mass. 405 (1809) ; Alger v. Thompson, 83Mass.4S3 (1861) ; Schappner v. Sec- 
 ond Ave. R. Co., 55 Barb. (N. Y.) 497 (1870) ; Peeks v. Odom, 70 Tex. 183, 
 7 S. W. 702 (1888) ; Rich v. Hayes, 97 Maine 293, 54 Atl. 724 (1903). But if 
 a document not in evidence is sent to the jury by mistake and has no influ- 
 ence on the verdict, a new trial will not be granted. Winslow v. Campbell, 
 46 Vt. 746 (1874) ; Hix v. Drury, 5 Pick. (Mass.) 296 (1827). It is most ir- 
 regular for the jury to take documents out with them, without the court's 
 consent. Heylor v. Hall, Palm. 325 (1623) ; Goodman v. Cotherington, Siderf. 
 235 (1665) ; Rex v. Burdett, i Ld. Raym. 148 (1698) ; Sheaff v. Gray, 2 Yeates 
 (Pa.) 273 (1798) ; Lott v. Macon, 2 Strob. (S. Car.) 178 (1847), but the ver- 
 dict may be allowed to stand if not influenced by the papers improperly exam- 
 ined. Bersch v. State, 13 Ind. 434, 74 Am. Dec. 263 (1859) ; Sanderson v. 
 Bowen, 4 Thomp. & C. (N. Y.) 675 (1874) ; Wilkins v. Maddery, 67 Ga. 766 
 (1881).
 
 ,\.\U TRIAL 
 
 yHT' ISAAC BRUNSON v. WllXIAAI GRAHAM. 
 
 ^ SurREME_C0L'KT OF ri:XN SYLVAN lA, 1 796. 
 
 2 Ycatcs (Pa.) 166. 
 
 Case for nonperformance of a contract respecting the transfer 
 of funded stock of the United States. The cause was tried at the 
 sittings in Philadelphia, on the nineteenth of September last, and a 
 verdict for the plaintiff. 
 
 A rule was made to show cause why the verdict should not be 
 set aside and a new trial granted, which rule was now made abso- 
 lute by consent and without argument. It was admitted that the 
 jury retired from the bar and conferred together for some time 
 without coming to a decision, and then broke up late at night. Next 
 morning one of the jurors applied to a broker for information re- 
 specting the price of certificates at a particular period, and having 
 obtained the intelligence he wanted, communicated the same to his 
 fellow-jurors. Metcalfe v. Deane, Cro. Eliz. 189. 
 
 V^cmre facias de novo awarded.*^* 
 
 )^ 
 
 FALLS CITY v. BENNET SPERRY. 
 
 Supreme Court of Nebraska, 1903. 
 68 Nehr. 420."" 
 
 LoBiNXiER, C. : Defendant in error obtained a judgment against 
 Falls City for damages alleged to have resulted from a change in 
 the grade of the street in front of the former's premises. In support 
 of its motion for a new trial the city filed the affidavits of several of 
 
 ■^"Jurors are sworn to tr>' the cause according to the law and the evidence. 
 That is not evidence to which the juror listens out of court, when thereis 
 no opportunity to meet it, and no chance for cross-examination." Ncsmith 
 V. Clinton F. I. Co., 8 Abb. Pr. (N. Y.) 141 (1859) ; I^ow v. Parsons, 1 Root 
 (Conn.) 429 (1792) ; Robinson V. Donehoo, 97 Ga. 702, 25 S. E. 491 (1895). 
 But a new trial will not be granted where it is made to appear that the juror's 
 communication with a tliird person related purely to his private affairs. 
 Saltzman V. Sunset Tel. Co., 125 Cal. 501, 58 Pac. 169 (1899). Jurors should 
 decide cases upon such evidence as is produced before them by the parties to 
 the litigation, and not go in search of evidence privately, or act upon evidence 
 so obtained. Metcalfe v. Deane, Cro. Eliz. 189 (1590) ; Boivler v. Jl'ashinrjton, 
 62 Maine 305 (1873) ; Winslow V. Morrill, 68 Maine 362 (187S) ; Harrington 
 V. Worcester L. & S. St. R. Co., 157 Mass. 579, 32 N. E. 955 (1893) ; Pierce v. 
 Brennan, 88 Minn. 50, 92 N. \V. 507 (1901) ; Buffalo Structural Co. v. Dick- 
 inson, 98 Apo. Div. 355, 90 N. Y. S. 268 (1904); Floody v. Great Northern 
 R. Co., 102 Minn. 81, 112 N. W. 875, 1081 (1907); Bowler v. Washington, 
 62 Maine 302 (1873) ; Statnpofski v. Steffcns, 79 111. 303 (1875) ; Helmc v. 
 Kti wston 8 KuId (P^^ ^^i f TSor.^ • Deacon v. Shreve, 22 N. J. L. 175 
 TTZ^i>) ; 1- landers v. Mnllin, 73 Vt. 276, 50 Atl. 1055 (1901); Wooldridge v. 
 White, 105 Kv. 247, 48 S. W. 1081 (1899); Consolidated Ice Mack. Co. v. 
 Trenton Hygiene Ice Co., 57 Fed. 898 (1893) ; Ironton Lumher Co. v. Wagner, 
 (Ky.) 119 S. W. 197 (1909); Johnson v. Riter-Conley Mfg. Co., 149 App. 
 Div. 543, ^23 N- Y. S. 1004 (1912). 
 
 "Part of the opinion of the court is omitted.
 
 FALLS CITY V. SPERRY 447 
 
 the jurors, to the effect "that Joseph McCormick was one of _ the 
 jurors on said case and that Joseph McCormick stated in the jury 
 room before the members of the jury when said cause was_ under 
 consideration, that he (McCormick) was well acquainted with the ' 
 premises in question, that he had observed the street and premises 
 of Bennet Sperry before the grading in question and that he knew 
 from his own observation before and after the grading complained 
 of in plaintiff's petition how the water took its course before said 
 grading, along said street in front of plaintiff's premises." Affidavits i 
 of several outsiders were filed, stating that the same juror had said' 
 to them "that he (McCormick) had arrived at his verdict, or the 
 amount Sperry was damaged by the grading in question, partly from 
 his own knowledge of the premises gained from his observation of 
 the street and premises in question before and after the grading 
 complained of in plaintiff's petition," Plaintiff in error's attorneys 
 also presented affidavits, one of which set forth that affiant "did not 
 know that said Joseph McCormick personally knew anything about 
 the premises at the time of the trial and the knowledge came to me 
 after the verdict had been rendered in said case; that said Joseph 
 McCormick upon his voir dire examination before being sworn to 
 try said case stated that he knew notliing concerning the case nor 
 the merits thereof and that he had no knowledge of the facts in the 
 case." 
 
 There was no counter showing, and these affidavits were incor- 
 porated in a separate bill of exceptions which was served within the 
 forty days after the overruling of the motion. The affidavits are 
 admissible because their purpose is "to prove matters occurring dur- 
 ing the trial or in the jury room which do not essentially inhere in 
 the verdict itself." Johnson v. Parrotte, 34 Nebr. 26, 30; Harris v. 
 State, 24 Nebr. 803 ; Savary v. State, 62 Nebr. 166, 179. Whether the 
 facts therein recited were sufficient, therefore, to entitle plaintiff in 
 error to a new trial, is one of the questions presented by this pro- 
 ceeding. 
 
 There was a time in the history of the law when a verdict 
 arrived at by the method here complained of would have been proper. 
 The primitive English jury, while not, as is sometimes loosely said, 
 a mere body of witnesses, was permitted to and did base its verdict 
 chiefly upon the prior personal knowledge of its members. 6 Encyc. 
 PI. & Pr. 668 et seq., where the authorities, legal and lay, are col- 
 lected. 
 
 This rule was continued in force longer than it otherwise would 
 have been, by the fact that jurors were liable to the penalties of 
 attaint for a false verdict. 3 Blackstone's Commentaries, p. 374. 
 And it was retained in qui tarn actions until well into the eighteenth 
 century. Mattison v. Allanson, 2 Strange 1238. But with the sup- 
 planting of the practice of attaint by that of new trials it came to be 
 the rule that a juror could not use his personal knowledge of the 
 subject matter of the controversy unless he was sworn and gave it 
 to his fellow-jurors like any other witness. Bennet and the Hundred 
 of Hartford, Style 233 (1650) ; Re.v v. Rosser, 7 Car. & P. 648;
 
 44S TKIAT. 
 
 Ma>ilc\ V. Shaw, Car. & ^lar. 361 ; State v. Pozuell, 7 N. J. L. ^244 ; 
 .Inscliicks v. State, 6 Tex. App. 5-M. 539- This did not necessarily 
 prevent him from still acting as a juror {Hpzvscr v. CommomvcaWi, 
 5^1 Pa. St. Zc)~^ :^Z'^'' Dunbar v. Park.'<, 2 Tyl. (Vt.) 217;! Wharton, 
 
 "iCvidcncc, sec. Ooj), but it did preclude him from communicating 
 sinijilv as a juror, mailers Avilhin his own knowledge. 
 
 The modern jury must arrive at ils verdict from evidence regu- 
 larly produced iii the course of the trial proceedings. That evidence 
 may be no different from such as might be acquired by the jurors un- 
 officially, but still the latter could not be considered. Thus, the jury 
 
 , under the proper supervision may view the premises in controversy, 
 and in this slale such view may afford a proper basis for their ver- 
 dict. Chicago, R. I. and P. R. v. FarzvcU, 60 Nebr. 322. But if one 
 or more the jurors should visit unofficially the same locality during 
 the progress of the trial and reach a conclusion as a result of such 
 inspection, the verdict would be vitiated. W'mslow v. Morrill, 68 
 ]\Iaine 362; Botvlcr v. Washington, 62 Maine 302; Eastzvood v. 
 People, 3 Parker Crim. Rep. (N. Y.) 25; Flanderst v. Mullin, 73 
 Vt. 276; Consolidated Ice-Machine Co. v. Trenton Hygeian Ice Co., 
 57 Fed. 898. There would seem to be no difference in principle 
 between a juror's using knowledge irregularly acquired during that 
 trial and relying on that acquired prior thereto. 
 
 On die principle above stated, jurors are not allowed to make 
 private experiments or investigations for the purpose of determining 
 essential controverted points. People v. Conkling, iii Cal. 616, 627; 
 Wilson V. United States, 116 Fed. 484, 486.^'' In short they are not 
 permitted to consider any fact not brought before them in the regu- 
 lar way. Hcffron v. Gallupe, 55 Maine 563, 568 ; Thompson v. Mal- 
 let, 2 Bay (S. Car.) 94, and if one of their number, at any time 
 before an agreement is reached, makes a statement to his fellow- 
 jurors based upon his prior knowledge and having a material bear- 
 ing on the subject of their deliberations, the verdict is vitiated 
 thereby. Sam v. State, 1 Swan. (Tenn.) 60; Ryan v. State, 97 
 Tenn. 206; Citizens' St. R. Co. v. Burke, 98 Tenn. 650, 652 ; Forsyth 
 V. Central Mfg. Co., 103 Tenn. 497, 498; Anschicks v. State, 6 Tex. 
 App. 524, 537. A juror is entitled, of course, to use his general 
 knowledge and experience on a subject for the purpose of testing 
 the credibility of the witnesses, as on a question of value. Re.v v. 
 Rosser, 7 Car. & P. 648; Patterson v. City of Boston, 20 Pick. 
 (Mass.) 159. But if he have knowledge of any specific matter in 
 controversy, it is his duty to so inform the court, and have it placed 
 before his fellow-jurors, if at all, according to the established rules 
 of trial evidence. 
 
 With a distinct and undisputed showing that this juror not only 
 had the prior knowledge and based his own conclusions partly 
 thereon, but that he used it to influence his fellow-jurors in arriving 
 
 "Accord: Jim v. State, 4 Humph. (Tenn.) 2S9 (1843); Yates v. People, 
 38 111. 527 (1865) ; Higgins v. Los Angeles Gas & Electric Co., 159 Cal. 651, 
 115 Pac. 313 (1911)-
 
 FRY V. IIORDY 449 
 
 at tlieir verdict, we are unable to see how it can be permitted to 
 stand. 
 
 Reversed and remanded.^''^ 
 
 (^ 
 
 ^-" FRY V. HORDY. 
 
 Court of King's Bench, 1677. 
 T. Jones 83'' 
 
 On a verdict for the plaintiff it was moved by Levins for the 
 defendant to have a new trial, because upon an affidavit urged by 
 him, made by the bailiff who attended the jury, the court was in- 
 
 *''a Accord: Wright v. Crump, 7 Mod. I (1702); Bradley v. Bradley, 4 
 Dall. (Pa.) 112, I L. ed. 763 (1792) ; Gregory v. Baugli, 4 Rand. (Va.) 611 
 (1827) ; Otiawa Gas Light Co. v. Graham, 28 111. 73, 81 Am. Dec. 263 (1862) ; 
 Head v. Hargrove, 105 U. S. 45, 26 L. ed. 1028 (1881) ; Douglass v. Trask, 
 77 Maine 35 (1885) ; Griffin v. Harriman, 74 Iowa 436, 38 N. W. 139 (1888) ; 
 Atchison, &c., R. Co. v. Hayes, 42 Kans. 609, 22 Pac. 741 (1889) ; Forsyth v. 
 Central M. Co., 103 Tenn. 497, 53 S. W. 731 (1899) ; Street R. & T. Co. v. 
 Simmons, 107 Tenn. 392, 64 S. W. 70S (1901) ; De Gray v. N. Y. & N. J. T. 
 Co., 68 N. J. L. 454, 53 Atl. 200 (1902). But, as laid down in Patterson v. 
 Boston, 20 Pick. (Mass.) 159 (1S38), jurors in arriving at a verdict may make 
 use of the general knowledge and experience which they have in common with 
 other men. Schmidt v. Insurance Co., 67 Mass. 529 (1854) ; State v. Railroad 
 Co., 86 Maine 309 (1894) ; Lillibridge v. McCann, 117 Mich. 84, 75 N. W. 288 
 (1898) ; Piircellw. Tibbies, loi Iowa 24, 69 N. W. 1120 (1897) ; McGarrahan 
 V. N. Y., N. H. & H. R. Co., 171 Mass. 211, 50 N. E. 610 (1898) ; Karner v. 
 Kansas City El. R. Co., 82 Kans. 842 (1910). 
 
 Where in the course of the trial the jury are permitted to view the prem- 
 ises involved, it has been held in some jurisdictions that the purpose of the 
 view is to enable the jury to better understand and apply the testimony given 
 in court, and that the jurors may not base their verdict upon the examina- 
 tion itself. Close v. Samm, 2.7 Iowa 503 (1869) ; Wright v. Carpenter, 49 
 Cal. 607 (1875); Pittsburgh, Ft. W. & C. R. Co. v. Swinney, 59 Ind. 100 
 (1877) ; Machader v. Williams, 54 Ohio St. 344, 43 N. E. 324 (1896) ■,Moffz. 
 i nan y. Bloomsburg & S. R. Co.. 14^ Pa. St. 5 03. 22 Atl. 823 ( 1891 ) ; Dady v. 
 Condit, 188 "111. 234, 58 N. E. 900 (1000) ; Northwestern Miit. Life Ins. Co. 
 V. Sun Ins. Co., 85 Minn. 65, 88 N. W. 272 (1901). The better rule, however, 
 would seem to be that what is observed by the jury upon view is evidence, 
 to be considered in connection with the verbal testimony in arriving at a 
 verdict. Fitzgerald v. La Porte, 67 Ark. 263, 54 S. W. 342 (1899) ; Chicago, 
 &c., R. Co. V. Parsons, 51 Kans. 408 (1803) ; Shano v. Fifth Avenue Bri dge 
 Co... 180 Pa. St. 2A^. 42 Atl. 128 (1899) ; Groundwater v. Washington, 92 Wis7 
 56, 65 N. W. 871 (1896) ; Chicago, R. I. & P. R. Co. v. Farzuell, 60 Nebr. 
 322, 83 X. W. 71 (igoo) ; Norcross v. Vase, 199 Mass. 81, 85 N. E. 468 (1908) ; 
 Tacoma v. Hansen, 59 Wash. 594, no Pac. 426 (1910). In People v. Milner, 
 122 Cal. 171, 54 Pac. 833 (1898) it was said: "If it were material to determine 
 whether a hole in the panel of a door was or was not caused by a bullet, it 
 would be permissible to remove the panel, to bring it into the courtroom, 
 offer and have it received in evidence, and submit it to the inspection of 
 the jur^^ It would not for a moment be doubted, if this procedure were 
 adopted, but tliat the physical object was evidence in the case. If, instead of 
 so doing, the court should direct that the place where the material fact oc- 
 curred should be viewed by the jury, and the jury should be conducted to 
 the spot, and the panel of the door pointed out to them, would it be any the 
 less the reception of evidence because obtained in this way?" See also II 
 Wigmore on Evidence, § 1168. 
 
 '^~Foy v. Harder, 3 Keb. 805 ; Foster v. Hawden, 2 Lev. 205. 
 
 29 — C:v. Proc.
 
 450 
 
 TRIAL 
 
 formed, that the jury being a long tunc in debate on their verdict, it 
 ■vvas at length agreed amongst them that they would try the matter 
 by the event of the falling of a sixpence, if pile for the plaintiff, if 
 cross for tlie defendant ; and the chance being for the plaintilt, they 
 unanimouslv gave their verdict for him, and (as was said) against 
 the direction of the judge who tried the cause: but that matter was 
 not regarded, for no certificate of the judge was produced. But for 
 the illbehavior of the jury, who put their consciences in the power of 
 chance, a rule was given that the verdict should be quashed, and the 
 jurors being of the county of Northumberland should attend the 
 court the next term, unless cause this term ^hown.''^ 
 
 f Hir.H 
 
 WILLIAM S. PARHAM v. THOMAS HARNEY. 
 Court of Errors and Appeals of Mississippi, 1846. 
 
 14 Miss. 55. 
 
 In error from the Circuit Court of Hinds county. Action by 
 Thomas Harney against William S. Parham for assault and battery. 
 On tJie trial there was a verdict for plaintiff for $3,602.50. A new 
 trial v/as refused and the defendant appealed.^^ 
 
 Clayton, J. : The principal ground of error assigned in this cause 
 is the misconduct of the jury upon the trial in the court below. 
 Without consultation or deliberation about their verdict, they agreed, 
 immediately upon entering their room, that each should put down 
 a sum which should be divided by twelve, and that the result should 
 give the amount of damages to be found by their verdict. This rule 
 was adopted and acted on. The several amounts put down by the 
 jurors ranged from thirty dollars to ten thousand dollars. This mode 
 of making up a verdict has been repeatedly condemned by the courts 
 of the country.^*' It substitutes the fluctuating and uncertain hazards 
 of a lottery for the deliberate conclusions of their reflections and in- 
 terchange of views. 
 
 This misconduct w^as established by the testimony of three wit- 
 nesses, who were not of the jury; deputy sheriffs who saw the pro- 
 ceeding, and the tickets upon which the figures were written, placed 
 in a hat and drawn out to form the basis of their finding. Such a 
 course can not meet w^ith judicial sanction. 
 
 The judgment will be reversed and a new trial awarded."^ 
 
 ''Accord: Rex v. Fitzwaltcr, 3 Keb. 555 (1676) ; Rex v. Fitzwalter, 2 Lev. 
 139; Hale V. Cove, i Stra. 642 (1726) ; Philips v. Fowler, Comyns 525 (1736) ; 
 Aylett V. Jewel, 2 W. Bl. 1299 (1779) ; Vaise v. Delaval, i D. & E. 11 (1785) ; 
 Lew V. Brannan, 39 Cal. 485 (1870) ; Merscve v. Shine, 27 Iowa 253 (1873) ; 
 Obe'ar v. Gray, 68 Ga. 182 (1881) ; Wright v. Abbott, 160 Mass. 395, 36 N. E. 
 62 (1894). 
 
 ""The statement of facts is abridged. 
 
 '■"Mitchell V. Ehle, 10 Wend. (N. Y.) 595 (1833); Elledpe v. Todd, i 
 Humph. (Tenn.) 43, 34 Am. Dec. 616 (1839) ; Roberts v. Fnilis, i Cow. 
 (N.Y.) 238 (1823) ; r-Jarvey v. Rickett, 15 Johns. (N. Y.) 87 (1818). 
 
 ''Accord: Warner v. Robinson, i Root (Conn.) 194, i Am. Dec. 38 
 (1790); St. Martin v. Desnoyer, I Minn. 156, 61 Am. Dec. 494 (1854);
 
 M DONALD &C. GUARANTY CO. V. PLESS 451 
 
 Mcdonald and united states fidelity and 
 
 GUARANTY CO. v. PLESS. 
 
 /^^ 
 
 Supreme Court of the United States, 191 5. 
 238 U. S. 264. 
 
 Lamar, J. : Pless & Winbourne, attorneys at law, brought suit 
 in tlie Superior Court of McDowell County, North Carolina, against 
 ]^^IcDonald to recover $4,000 alleged to be due them for legal serv- 
 ices. The case was removed to the then Circuit Court of the United 
 States for the Western District of North Carolina. There M^as a 
 trial in which the jury returned a verdict for $2,916 in favor of 
 Pless & Winbourne. The defendant McDonald moved to set aside 
 the verdict on the ground that when the jury retired the foreman 
 suggested that each juror should write down what he thought the 
 plaintiffs were entitled to recover, that the aggregate of those 
 amounts should be divided by twelve and that the quotient should be 
 the verdict to be returned to the court. To this all assented. 
 
 The motion further averred that when the figures were read out 
 it was found that one juror was in favor of giving plaintiffs nothing, 
 eight named sums ranging from $500 to $4,000, and three put down 
 $5,000. A part of the jury objected to using $5,000 as one of the 
 factors inasmuch as the plaintiffs were only suing for $4,000. But 
 the three insisted that the)^ had as much right to name a sum above 
 $4,000 as the others had to vote for an amount less than that set 
 out in the declaration. The various amounts were then added up and 
 divided by twelve. But by reason of including the three items of 
 $5,000 the quotient was so much larger than has been expected that 
 much dissatisfaction with the result was expressed by some of the 
 jury. Others, however, insisted on standing by the bargain, and the 
 
 Birchard V. Booth, 4 Wis. 67 (1856) ; Forbes v. Hozfard, 4 R. I. 364 (1856) ; 
 Boynton v. Trumbull, 45 N. H. 408 (1864) ; Sharp v. Kansas City Cable R. 
 Co., 114 Mo. 94, 20 S. W. 93 (1S92) ; Dixon v. Pluns, 98 Cal. 384, 33 Pac. 
 268, 20 L. R. A. 698, 35 Am. St. 180 (1893) ; Long v. Collins, 12 S. Dak. 
 621, 82 N. W. 95 (1900) ; Ottawa v. Gilliland, 63 Kans. 165, 65 Pac. 252, 88 
 Am. St. 232 (1901); Birmingham R., &c., Co. v. demons, 142 Ala. 160, 37 
 So. 925 (1904); Williams v. Dean, 134 Iowa 216, iii N. W. 931 (1907); 
 International Agr. Corp. v. Abercrombie, 184 Ala. 244, 63 So. 549, 49 L. R. A. 
 
 (N. S.) 415 (1913)- Conir:^- Cn'^^'ppyth'7,'mfp M Jnvi^ c. 2 Y)^\\. ( Pa) K^, I 
 
 L. ed. 287 (1790) ; Clcl gnd v. Carlisle, 186 Pa. St. no, 40 At l. 288 (1898), and 
 see Bell v. Butler, 34 Wash. 131, 75 Fac. 130 (1904). The impropriety consists 
 in iht agreement in advance to be bound by the result. There is no impropriety 
 in taking a ballot to_ arrive at an average, not to control the minds of the jury 
 or forestall their ultimate conclusion, but merely as a basis from v.hich to work 
 in an effort to reach a verdict. Dorr v. Fcnno, 29 Mass. 520 (1832) -.Jlihit^jw^ 
 White^S^^yAeJ VTi.) ti ( 18 35 ) ; Kennedy v. Kenncdv, 18 N. T. L. 450 (1842) ; 
 Tyodge v. Carroll, 59 N. H. 237 (1879) ; Luft v. Lingane, 17 R. I. 420. 22 Atl. 
 942 (1891) ; McDonnell v. Pescadero, &c.. Stage Co., 120 Cal. 476, 52 Pac. 725 
 (1898) ; Groves & S. R. R. Co. v. Herman, 206 111. 34, 69 N.' E. "36 (1003) ; 
 McElhone v. Wilkinson, 121 Iowa 429, 96 N. W. 868 6903) ; Haaan v. Gibson 
 Min. Co., 131 Mo. App. 386, in S. W. 608 (1008); Rambo v. "Empire Dist. 
 P.lef. Co., 90 Kans. 390, 133 Pac. 553 (1913') ; Loy v. Northern Pac. R. Co., 
 77 Wash. 25, 137 Pac. 446 (1913) ; Pushcart v. New York Shipbuilding Co., 
 85 N. J. L. 525, 89 Atl. 980 (1914).
 
 .J5-' TKIAL 
 
 protcstiiii:: jurors finall}- yioUlcil to llio .'u\q;timonl that tlicy were bound 
 by the prc\ ic^is agreement, and llie (juotient: verdict was rendered 
 accordinjjly. 
 
 The defendant further allcp^cd in his motion that the jurors re- 
 fused to file an affidavit, but stated that they were wilhng to testify 
 to the facts allej^eil, provided the court thouglit it proper that they 
 sliould do so. At tlie liearing- of the motion one of the jurors was 
 sworn as a witness, but the court refused to allow him to testify on 
 the ground that a juror was incompetent to imjieach his own verdict. 
 The ruling was affirmed by the Court of Appeals. 206 Fed. 263. The 
 case was then brought here by writ of error.'^- 
 
 Though Rev. Stat., par. 914, does not make North Carolina deci- 
 sions controlling in the federal court held in that state, we recognize 
 the same public policy which has been declared by that court, by 
 those in England and most of the American states. For while by 
 statute in a few jurisdictions, and by decisions in others, the affida- 
 vit of a juror may be received to prove the misconduct of himself 
 and his fellows, the weight of authority is that a juror can not im- 
 peach his own verdict. The rule is based upon controlling consid- 
 erations of a public policy which in these cases chooses the lesser 
 of two evils. When the affidavit of a juror, as to the misconduct of 
 himself or the other members of the jury, is made the basis of a mo- 
 tion for a new trial the court must choose between redressing the 
 injury of the private litigant and inflicting the public injury which 
 would result if jurors were permitted to testify as to what had hap- 
 pened in the jury room. 
 
 These two conflicting considerations are illustrated in the present 
 case. If the facts were as stated in the affidavit, the jury adopted an 
 arbitrary and unjust method in arriving at their verdict, and the 
 defendant ought to have had relief, if the facts could have been 
 proved by witnesses who were competent to testify in a proceeding 
 to set aside the verdict. But let it once be established tliat verdicts 
 solemnly made and publicly returned into court can be attacked and 
 set aside on the testimony of those w4io took part in their pub- 
 lication and all verdicts could be, and many would be, followed by 
 an inquir}^ in the hope of discovering something which might invali- 
 date the finding. Jurors would be harassed and beset by the defeated 
 party in an effort to secure from tliem evidence of facts which might 
 establish misconduct sufficient to set aside a verdict. If evidence thus 
 secured could be thus used, the result would be to make what was 
 intended to be a private deliberation, the constant subject of public 
 investigation — to the destruction of all frankness and freedom of 
 discussion and conference. 
 
 The rule on the subject has varied. Prior to 1785 a juror's testi- 
 mony in such cases was sometimes received though always with great 
 caution. In that year Lord Mansfield, in Vaise v. Delaval, i T. R. 
 II, refused to receive the affidavit of jurors to prove that their ver- 
 dict had been made by lot. That ruling soon came to be almost 
 
 "A portion of the opinion holding that the federal court was not con- 
 trolled by the North Carolina decisions is omitted.
 
 m'dONALD &C. guaranty CO. V. PLESS 453 
 
 universally followed in England and in this country. Subsequently, 
 by statute in some states, and by decisions in a few otliers, the 
 juror's affidavit as to an overt act of misconduct, which was capable 
 of being controverted by other jurors, was made admissible. And, 
 of course, the argument in favor of receiving such is not only very 
 strong but unanswerable — when looked at solely from tlie stand- 
 point of the private party who has been wronged by such miscon- 
 duct. The argument, however, has not been sufficiently convincing 
 to induce legislation generally to repeal or to modify the rule. For, 
 while it may often exclude the only possible evidence of misconduct, 
 a change in the rule "would open the door to the most pernicious arts 
 and tampering with jurors." "The practice would be replete with 
 dangerous consequences." "It would lead to the grossest fraud and 
 abuse" and "no verdict would be safe." Cluggage v. Swan, 4 Birm . 
 (Pa.) 155 ;jStraker v. Graham, 4 M. & W. 721. 
 
 There are only three instances in which the subject has been 
 before this court. In United States v. Reid, 12 How. (U. S.) 361, 
 366, the question, though raised, was not decided because not neces- 
 sary for the determination of the case. In Clyde Mattox v. United 
 States, 146 U. S. 140, 148, such evidence was received to show 
 that newspaper comments on a pending capital case had been read 
 by the jurors. Both of those decisions recognize that it would not 
 be safe to lay down any inflexible rule because there might be in- 
 stances in which such testimony of the juror could not be excluded 
 without "violating the plainest principles of justice." This might 
 occur in the gravest and most important cases ; and without at- 
 tempting to define the exceptions, or to determine how far such evi- 
 dence might be received by the judge on his own motion, it is safe 
 to say that there is nothing in the nature of the present case war- 
 ranting a departure from what is unquestionably the general rule, 
 that the losing party can not, in order to secure a new trial, use the 
 testimony of jurors to impeach their verdict. The principle was rec- 
 ognized and applied in Hyde v. United States, 225 U. S. 347, which, 
 notwithstanding an alleged difference in the facts, is applicable here." 
 
 "Accord: Price v. Warren, i H. & M. (Va.) 385 (1807) ; Dana v. Tucker, 
 4 Johns. (N. Y.) 487 (1809) ; Cluggage v. Swan, 4 Binn. (Pa.) 150, 5 Am. 
 Dec. 400 (1811) ; Hindle v. Birch, 8 Taunt. 26 (1817) ; Straker v. Graham, 4 
 M. & W. 721 (1839) ; Cain V. Cain, I B. Mon. (Ky.) 213 (1841) ; Burgess v. 
 Langley, 5 Man. & G. 721 (1843) ; Clum v. Smith, 5 Hill (N. Y.) 560 (1843) ; 
 Cook V. Castner, 63 Mass. 266 (1852) ; Smith v. Ciilbertson, 9 Rich L. 
 (S. Car.) 106 (1855); Pleasants v. Heard, 15 Ark. 403 (1855); Hester v. 
 State, 17 Ga. 130 (1855) ; Green v. Bliss, 12 How. Pr. (N. Y.) 428 (1856) ; 
 Tucker v. South Kingston, 5 R. I. 558 (1859) ; McCray v. Stewart, 16 Ind. 
 377 (1861) ; Merriman's Appeal, 108 Mich. 454, 66 N. W. 372 (1896) ; Purcell 
 V. Southern R. Co., 119 N. Car. 728, 26 S. E. 161 (1896) ; Sttill v. Stull, 197 
 Pa. 243, 47 Atl. 240 (1900) ; Eversole v. White, 112 Ky. 193, 65 S. W. 442, 
 23 Ky. L. 1435 (1901) ; Chicago v. Saldman, 225 111. 625, 80 N. E. 349 (1907) ; 
 Soens V. Chicago, &c., Coal Co., 160 111. App. 467 (1911) ; Red fern v. Thomp- 
 son, ID Ga. App. 550, 73 S. E. 949 (1911) ; Pullman Co. v. Finlev, 20 Wyo. 
 456, 125 Pac. 380 (1912) ; Blodgett v. Park, 76 N. H. 435, 84 Atl. 42 (1912) ; 
 Romans v. McGinnis, 156 Ky. 205, 160 S. W. 928 (1913) ; Baxter v. Beckwith, 
 25 Colo. App 322, 137 Pac. 901 (1914); Glockner v. Jacobs, 40 Okla. 641, 
 140 Pac. 142 (1914) ; Hurlburt v. Leachman, 126 Minn. 180, 148 N. W. 51 
 (1914). Contra: Crawford v. State, 2 Yerg. (Tenn.) 60, 24 Am. Dec. 467
 
 454 TRIAL 
 
 The su,c:,c:c^tion that, If this be the true rule, then jurors could 
 not bo wilucsscs in criminal cases, or in contempt i)rocccding 
 brous^ht to inmish the wrongdoers is witliont founchition. For the 
 principle is limited to those instances in which a private party seeks 
 to use a juror as a witness to impeach the verdict. 
 
 Judgment afilirnied. 
 
 r 
 
 ROBERTS V. HUGHES. 
 Court of Exchequer, 1841. 
 
 7 M. & W. 399- 
 
 This was an action tried before the under-sheriff of Merioneth- 
 shire, in which the plaintiff had a verdict for 15/ 6s. Jervis had 
 obtained a rule msi to enter a verdict for the defendant, or for a 
 new trial, on the ground that the verdict had been entered for the 
 plaintiff by a mistake of the under-sheriff. 
 
 R. F. Richards, in showing cause, proposed to read an affidavit 
 of one of the jurors, as to what had passed on the delivery of their 
 verdict. Jervis objected. 
 
 Per Curiam. The rule does not exclude jurymen from swear- 
 ing to what took place in open court, but only as to what took place 
 in their private room, or the grounds on which they found their 
 verdict. 
 
 The affidavit was accordingly read and ultimately the rule w-as 
 made absolute for a new trial.''* 
 
 (1821); Wright V. Illinois & M. Tel. Co., 20 Iowa 195 (1866); Perry y. 
 Bailey, 12 Kans. 539 (1874). The majority view is severely criticized in 
 4 Wigmore on Evidence, § 2346 et seq. For statutory modifications see 2 
 Thompson on Trials (2 ed.), § 2627. Affidavits of jurors may be received 
 in support of their verdict. Dana v. Tucker, 4 Johns. (N. Y.) 487 (1809) ; 
 Hix v. Drnrv, 5 Pick. (Mass.) 296 (1827) ; Smith v. Eames, 4 111. 76 (1841) ; 
 Hutcliinson'v. Consumers Coal Co., 36 N. J. L. 24 (1872) ; Davis v. Huber 
 Mfg. Co., 119 Iowa 56, 93 N. W. 78 (1903) ; Birmingham, &c., Co. v. Clem- 
 mons, 142 Ala. 160, 37 So. 925 (1904) ; McGlone v. Hanger, 56 Ind. App. 243, 
 104 N. E. 116 (1914). 
 
 '^Accord: Cogan v. Ebden, I Burr. 383 (i757) ; Jackson v. Dickenson, 
 15 Johns. (N. Y.) 309 (1818); Prussel v. Knowles, 4 How. (Miss.) 90 
 (1839); Dalrymple v. Williams, 63 N. Y. 361, 20 Am. Rep. 544 (1875); 
 Dayton v. Church, 7 Abb. N. Cas. (N. Y.) 367 (1879); Burlinghame v. 
 Central R. of Minn., 23 Fed. 706 (1885) ; Matt ox v. United States, 146 U. S. 
 149, 36 L. ed. 921 (1892) ; Werts v. Cincinnati, H. & D. R. Co., 11 Ohio Dec. 
 872 (1893) ; Peters V. Fogarty, 55 N. J. L. 386, 26 Atl. 855 (1893) ; Rush v. St. 
 Paul City R. Co.. 70 Minn. 5, 72 N. W. 733 (1897) ; Hempton v. State, in 
 Wis. 127, 86 N. \V. 596 (1901) ; Hary v. Speer, 120 Mo. App. 556, 97 S. W. 
 i28 (1906); Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402 
 (1914). In Randall v. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221 
 (1912) it is said per RugR, C. J.: "The affidavits of all the jurors agreeing 
 to the same points were admissible for the purpose of showing the clerical 
 error occurring after the deliberations of the jury had ceased and the verdict 
 had been agreed upon, and of enabling the court to correct it. A clerical error 
 in the statement of the conclusions of a jury established by uncontroverted 
 evidence may be corrected."
 
 ANONYMOUS 455 
 
 ANONYMOUS. 
 
 Court of Common Bench, 1310. 
 
 Year Book, Mich. Term 4 Ed. II No. 74" 
 
 In a writ of entry siir disseisin an inquest was joined. And after 
 the inquest was sworn, they could not agree. 
 
 Stanton, J. :"^ Good people, you can not agree ? 
 
 Stanton, J., to John Allen •J'^ Go and put them in a house until 
 Monday, and let them not eat or drink. 
 
 On that commandment John put tlnem in a house without, etc. 
 At length, on the same day, about vesper-time, they agreed. And 
 John went to Sir Hervey and told him that they were agreed. Then 
 Stanton, J., gave them leave to eat. Then on Monday the inquest 
 came and wanted to give a verdict in gross. And Stanton, J., said 
 that he wanted the story told. So the inquest told the story, etc.^* 
 
 "Selden Society, Year Book series, vol. IV, p. 188. 
 
 "Hervey of Stanton. 
 
 "Apparently the marshal of the court. 
 
 ""The jury after the proofs are summed up, unless the case be very 
 clear, withdraw from the bar to consider of their verdict; and, in order 
 to avoid intemperance and causeless delay, are to be kept without meat, 
 drink, fire, or candle, unless by permission of the judge, till they are all 
 unanimously agreed." 3 Blackstone's Commentaries, 375 ; Wright v. Crump, 
 7 Mod. I (1702). St. Germain opposed this practice. Doc. & Stud. Dialogue 
 II, ch. 53. And, by the juries act of 33. and 34 yict.,_ ch. yj (1870), § 23, 
 "Jurors after having been sworn, may, in the discretion of the judge, be 
 allowed at any time before giving their verdict the use of a fire when out 
 of court and be allowed reasonable refreshment, such refreshment to be 
 procured at their own expense." See notes to King v. Woolf, I Chitty, 401 
 (1819) ; Smith v. Thompson, I Cow. (N. Y.) 221 (1823), and see Reg v. 
 NeKton, 3 C. & K. 85 (1850). 
 
 In America, while the furnishing of refreshments and other necessaries 
 to the jury is under the strict control of the court, in the exercise of a 
 sound discretion, O'Barr v. Alexander, 2,7 Ga. 195 (1867) ; Gaither v. Hascall- 
 Richards Steam Generator Co., 121 N. Car. 384, 28 S. E. 546 (1897), it is 
 highly improper for the court to coerce the jury into finding a verdict by 
 subjecting them to severe physical or moral pressure. Hancock V. Elani, 
 3 Baxt. (Tenn.) 33 (1873) ; Physioc V. Shea, 75 Ga. 466 (1885) ; Henderson 
 V. Reynolds, 84 Ga. 159, 10 S. E. 734, 7 L. R. A. 327 (1889) •,MiUer_v, Miller^ 
 T8 7 Pa. 572, /| T Atl. 277 (1898); Fairbanks v. IVeeher, 15 Colo. App. 268, 
 62 Pac. 368 (1900). 
 
 "And it has been held, that if the jurors do not agree in their verdict 
 before the justices are about to leave the town, though they are not to be 
 threatened or imprisoned, the judges are not bound to wait for them, but 
 may carry them around the circuit from town to town in a cart." Ill Black- 
 stone's Commentaries, 376. Accord: Kinq v. Lcdinnham, Vent. 97 (1671) ; 
 Y. B. 19 Edw. Ill, Trin. No. 22, Rolls ed. p. 184; Y. B. 19 Lib. Ass. 6; Y. 
 B. 41 Lib. Ass. II ; 2 Hale's Pleas of ths Crown, 297. In Spearman v. Wilson, 
 44 Ga. 473 (1871), it was held error for the court to state to the jury that 
 if they did not bring in a verdict soon he would make arrangements to carry 
 them to another county. Accord: Gholston v. Gholston, 31 Ga. 625 (i860) 
 and see Texas Midland R. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163 (1908), 
 where such an alleged threat was not regarded as intended or taken seriously. 
 
 In civil cases, if the jurors can not agree after being kept together for 
 such a time as is deemed reasonable by the court, the court may discharge
 
 456 TRIM. 
 
 HUNTIN AND WWE v. CITY OF DANVILLE. 
 
 Sltkkmk Court of Arrr.ALs of Virginia, 1896. 
 
 93 J 'a. 200. 
 
 F.rror to a ind,!::incnt of the corporation court of the city of Dan- 
 ville, roiulcrcJ July 15, 1893, in an action of ejectment wherein the 
 plaintilYs in error were the plaintiffs, and the defendant in error 
 was the defendant.'" 
 
 RiKLY, J, : The fourth bill of exceptions is in regard to certain 
 remarks made by the court to the jury, which, it is claimed, were 
 in the nature of a threat, and calculated to coerce the jury into ren- 
 derinc^ a verdict. After the jury had been considering of their ver- 
 dict for a day and a half, they were brought into court preparatory 
 to an adjournment at the close of the second day, and the usual in- 
 quiry being made of them as to whether or not they had agreed 
 upon a verdict, they replied in the negative; whereupon the court 
 remarked to them that "he wished them to decide the case ; that they 
 were as competent to do it as any other jury; that this was the sec- 
 ond trial of the case, and that they would be kept together until the 
 end of the term unless they did ; that the case was a perfectly plain 
 one, and ought to be decided in five minutes after reading the in- 
 structions and applying them to the facts." It thereupon discharged 
 them until the next morning with the usual injunction not to con- 
 verse with any one on the subject. The record is silent as to the 
 time that thereafter elapsed before the verdict was rendered. 
 
 The trial by jury is a sacred right, and should be sedulously 
 guarded. The jury should not only be kept from all extraneous 
 influences in reaching their verdict, but the court itself should be 
 careful not to trench upon their province. A verdict resulting from 
 coercion could not be allowed to stand.^*^ It must be the untram- 
 meled "expression of the concurrence of individual judgments." 
 
 them. Richards v. Page, 81 IMaine 563, 18 All. 289 (1888) ; N. Y. Code Ov. 
 Proc, § 1181 ; Ingersoll v. Lansing, 51 Hun loi, 5 N. Y. S. 288, 24 N. Y. St. 
 163 (1889). 
 
 As to criminal cases compare People v. Olcott, 2 Johns. Cas. (N. Y.) 301, 
 1 Am. Dec. 168 (1801); People v. Goodzdn, 18 Johns. (N'. Y.) 187, 9 Am. 
 Dec. 203 (1820) with Co}umQm£££ llIi V- Cook, 6 Se rg^_&_ R. (Pa.) 577, 9 
 Am. Dec. 46; (1822) ; lSfe^dv7State,~7 Forter (Ala.;' 187 (iB^STT Common- 
 ^rrnlfhv fii- pntrirk. T2T Pa. .St. lo O. 15 Atl. 466, I L. R. A. 451, ^ Am. ST. 
 7^7(7^), and see note to State v. Harris, 119 La. 298, 11 L. R. A. (N. S.) 
 178 6907) ; People v. Warden, 202 N. Y. 138, 95 N. E. 729 (1911)- 
 
 "Only so much of the case as relates to the question of coercion of the 
 jury is printed. 
 
 ^Green v. Telfair, Tl How. Pr. (N. Y.) 260 (1853); Cranston v. New 
 York Central £r H. R. Co., 103 N. Y. 614, 9 N. E. 500 ( 1886) ; Southern Ins. 
 Co V. White, 58 Ark. 277, 24 S. W. 42t (1893) ; Mahonev v. San Francisco & S 
 M. R. Co., iio Cal. 471, 42 Pac. 96S, 43 Pac. 518 -(1895); MiUerv^Miller, 
 187 Pa. St. ?72. 41 Atl. 277 Ci8r)8) ; Twiss v. Lehigh Val. R. Co., 61 App. Div. 
 "286, 70 N. Y."S 241 (1901) ; hlodges v. O'Brien, 113 Wis. 97, 88 N. W. 901 
 ("1902) ; Highland Foundry Co. v. iV. Y., N. H. & H. R. Co., 199 Mass. 403, 85 
 N. E. 437 (1908).
 
 BUNTIN V. CITY OF DANVILLE 457 
 
 But while this is true, it is a maxim of the law that there should be 
 an end of litigation, and jurors should always agree, if possible. It 
 is particularly desirable that they should agree, if they can conscien- 
 tiously do so, where there has been one or more mistrials, as was tlie 
 case here. They should honestly endeavor to reconcile their differ- 
 ences of opinion, though not to the extent of surrendering their con- 
 victions. All who are familiar with jury trials know that jurors are 
 prone to report to the court their inability to agree, but not being 
 discharged, often render, in a reasonable time thereafter, a verdict 
 whose justice demonstrates, as was the case here, the propriety of 
 the action of the court in keeping them together longer. It is the 
 duty of the court to keep them together until it is satisfied that they 
 have made an honest effort to agree, and that their inabihty to do so 
 is due to a conscientious difference of judgment. Where their dif- 
 ferences render it necessary, a reasonable time must be taken for the 
 performance of the important duty submitted to the jury. What is 
 reasonable time must depend upon the circumstances of each case, 
 and be left in a very great measure to the discretion of the trial court. 
 And unless it is a clear case of an abuse of such discretion, the ver- 
 dict, for the cause we have been considering, should not be dis- 
 turbed.^^ And while we are of opinion that the remarks of the court, 
 which are excepted to, do not justify the construction put upon them 
 by the counsel, or the claim that the large discretion necessarily re- 
 posed in the trial court was abused in this instance, yet it is proper 
 to add that it is better and safer to refrain from any expression of 
 opinion, which may be claimed to savor of threat or coercion, as to 
 the time the jury will be kept together^^ unless a verdict is sooner 
 rendered. 
 Affirmed.83 
 
 ^Chesapeake & O. R. Co. v. Cowherd, 96 Ky. 113, 27 S. VV. 990, 16 Ky. 
 L- 2,73 (1894) ; Chicago City R. Co. v. Shreve, 128 III. App. 462 (1906) ; Scar- 
 lotta V. Ash, 95 Minn. 240, 103 N. W. 1025 (1905) ; Dover v. Lockhart Mills, 
 86 S. Car. 229, 68 S. E. 525 (1910) ; Covey v. Rogers, 85 Vt. 308, 81 Atl. 1130 
 (1912). 
 
 ^^Slater v. Mead, 53 How. Pr. (N. Y.) 57 (1876) ; Terre Haute R. Co. v. 
 Jackson, 81 Ind. 19 (1881) ; Phoenix Ins. Co. v. Moog, 81 Ala. 335, i So 
 108 (1886) ; Chesapeake & O. R. Co. v. Barlow, 86 Tenn. 537 (1888) ; Knapp 
 V. Chicago & W. M. R. Co., 114 Mich. 199 (1897) ; De Jarnettc v. Cox, 128 
 Ala. 518, 29 So. 618 (1900). Compare Osborne v. Wilkes, 108 N. Car. 6s i 
 13 S. E. 285 (1891). 
 
 "^Pierce v. Rehfuss, 35 Mich. 53 (1876); St. Louis & S. F. R. Co. v. 
 Bishard, 147 Fed. 496 (1906) ; Karner v. Kansas City El. R. Co., 82 Kans. 
 842, 109 Pac. 676 (1910) ; St. Louis, L M. & S. R. Co. v. Devaney, 98 Ark 
 83, 135 S. W. 802 (1911).
 
 45S TRIAL 
 
 SECTION II. VERDICT. 
 
 ^^^ BUNN V. IIOYT. 
 
 Supreme Couut of Nf.w York, 1808. 
 3 Johns. (.V. F.) zss.'^a 
 
 Rikcr moved to set aside the verdict in tliis cause for irregu- 
 larity. 
 
 This was an action of assumpsit against the defendant, as the 
 agent of Graham in the sale of a ship. The cause was tried at the 
 last sittings in New York, before Mr. Chief Justice Kent. 
 
 After the charge of the judge, the jury retired from the bar to 
 consider their verdict, and after being together several hours, they 
 separated, and the next morning delivered to the court a verdict 
 sealed up for the plaintiff. When the verdict was read, the counsel 
 for the defendant requested that the verdict might be taken by the 
 polls, and one of tlie jurors, on being asked whether he agreed to 
 the verdict as read, said that he could not agree to it; that he had 
 signed the sealed verdict as a matter of accommodation, but he 
 thought it unconscientious, and could not assent to it. The judge 
 then directed the jury to retire and reconsider tlieir verdict, to which 
 the defendant's counsel objected; but the jury were sent out and 
 after being absent for some time, they gave information to the court 
 that they could not agree on their verdict, upon which they were in- 
 formed 'by the direction of the judge, that tliey must agree. After 
 having been out several hours, they returned with a verdict for the 
 plaintiff for the same damages as before. 
 
 To show tliat the verdict was irregularly taken the counsel cited 
 Trials per pais, 249, 310; 2 Salk. 645 ; 2 Tidd 817. 
 
 Hopkins and J. Radcliff, contra, were stopped by the court. 
 
 Per Curiam : There has been no irregularity shown to render it 
 proper to set aside the verdict. 
 
 Rule refused.^* 
 
 '^aA second point in the case upon newly discovered evidence is omitted. 
 
 "The practice of allowing the jury to seal a verdict and then separate 
 is ver>' general, having superseded the privy verdict of the common law 
 described by Blackstone, 3 Bl. Comm. 377 ; Dornick v. Rcichcnback, i oJkr£. & 
 R,__CEiu) 84 (1823) ; High v. Johnson, 28 Wis. 72 (1871) ; Liiicago v.Langlass, 
 66 111. 361 (1872), and in the absence of a statutory prohibition, the practice is 
 permissible in civil cases, in the discretion of the judge without regard to 
 the consent of the parties. Bunker Hill, &c., Min. Co. v. Schmeling, 79 Fed. 
 263, 24 C. C. A. 564 (i8q7) ; Bunker Hill, &c., Min. Co. v. Oberder, 79 Fed. 
 726 (1897) ; Green v. Bliss, 12 How. Pr. (N! Y.) 428 (1856) ; Anonymous, 63 
 Maine 590 (1874) ; Kmmer v. Kister. i87 Pa. 227. ao A tl. 1008, 44 L. R. A. 
 432 (1898). The only true verdict is that which the jury announce orally 
 in open court and which is received and recorded. .Saunders v. Freeman, 
 Plowd (1562) ; Laurence v. Stearns, 28 Mass. 501 (1831) ; Withee v. Rozve, 
 45 Maine 571 (i8s8) ; Crotty v. Wyatt. 3 HI- App. 388 (1879); Suiliff v. 
 Gilbert 8 Ohio 405 (1838); Root v. Sherwood, 6 Johns. 68, 5 Am. Dec. 
 191 (1810) ; Sco U V. Scott, IIP Pa. 387. 2 A tl. 531 1885; Ostrander v. Lansing,
 
 BUNN V. HOYT 459 
 
 III Mich. 693, 70 N. W. 332 (1897) ; R oth V. East. CnnMPlhvWo Cnho Cn J 
 242 Pa. 23, 88 Atl. 781 (1913); Nelson v. Wood, 210 Fed. 18 (1913). The 
 parties may, however, consent that the verdict be received by the clerk in 
 the absence of the judge. Diibuc v. Lazell, 182 N. Y. 482 (1905) ; Ferrell v. 
 Hales, 119 N. Car. 199 (1896) ; Owens v. Southern R. Co., 123 N. Car. 183, 
 31 S. E. 383, 68 Am. St. 821 (1898) ; Bedal v. Spiirr, zz Minn. 207, 22 N. W. 
 390 (1885) ; Rigg v. Bias, 44 Kans. 148, 24 Pac. 56 (1890) ; Union Pac. R. 
 Co. V. Connolly, yy Nebr. 254 (1906). In civil cases there is a conflict of 
 opinion as to whether a party may demand a poll of the jury. Some juris- 
 dictions have declared this right absolute. Hubble v. Patterson, i Mo. 392 
 (1823) ; Fox V. Smith, 3 Cow. (N. Y.) 23 (1824) ; Jackson v. Haivks, 2 Wend. 
 (N. Y.) 620 (1829) ; Johnson v. Howe, 7 111. 342 (1845) ; Labor v. Koplin, 
 4 N. Y. 547 (1851) ; Hancock v. Winans, 20 Tex. 320 (1857) ; Whiiev.Arclt2 
 bald S_cliQil l D^^t-> ^ P ^-- County C t^_xjCj886) ; Smith v. Pazf77~i 33 N. Car. 
 66, 45 S. K 348 (1903). Elsewhere a poll is discretionary with the judge. 
 Ropps V. Barker, 21 Mass. 239 (1826); School Dist. v. Bragdon, 23 N. H. 
 507 (1851) ; Rutland v. Hawthorn, 36 Ga. 380 (1867) ; Whitner v. Hamlin, 
 12 Fla. 18 (1867) ; Dunlop v. Munroe, i Cr. (C. C.) 536, Fed. Cas. No. 4167 
 (1809), and see Humphries v. District of Columbia, 174 U. S. 190, 43 L. ed. 
 944, 19 Sup. Ct. 637 (1898). In Iowa the code dispenses with a poll in the case 
 of a sealed verdict. Dunbauld v. Thompson, 109 Iowa 199, 80 N. W. 324 
 
 (1899). 
 
 A verdict defective in form merely may be recommitted to the jury for 
 correction whether sealed or not. Tyrrell v. Lockhart, 3 Blackf. (Ind.) 
 136 (1832) ; IVnlfrn.'^,. v Fy.fpr. 7 Watts. CPal ^8 (^RJ?.^ ; Sutliff V. Gilbert, 8 
 Ohio 405 (1838); Pritchard V. Hennessey, i Gray (Mass.) 294 (1854); 
 Clark V. Sidway, 142 U. S. 682 , 35 L. ed. 1157, 12 Sup. Ct. 327 (1891) ; Clark 
 V. Lude, 63 Hun 363, 18 N. Y. S. 271, 43 N. Y. St. 607 (1892) ; Childs v. Car- 
 penter, 87 Maine 114, 32 Atl. 780 (1895) ; Lyon v. Brozvn, 34 App. Div. 323, 
 54 N. Y. S. 315 (1898) ; Saxon v. Foster, 69 Ark. 626, 65 S. W. 425 (1901) : 
 Wright V. Wright, 114 Iowa 748, 87 N. W. 709, 55 L. R. A. 261 (1910); 
 Hary v. Speer, 120 Mo. App. 566, 97 S. W. 228 (1906) ; Blake v _..J±u.snberaeii^ 
 /^ Pa^ Su per. Ct. 32 ( 191 1 ) ; Beecher v. Newcomer, 46 Pa. Super . Ct. ^44 
 (1911) ; Bronstein v. American Ice Co., 119 Md. 132, 86 Atl. 131 (1912). 
 
 \Vhere the jury have separated after agreeing to a sealed verdict, and 
 on coming into court one of the jurors dissents, it is generally held, as in 
 the principal case, that the judge may send the jury out to deliberate further. 
 Blackley v. Sheldon, 7 Johns. (N. Y.) 32 (1810) ; Douglass v. Tousey, 2 Wend. 
 (N. Y.) 3-2, 20 Am. Dec. 616 (1829) ; Perry v. Mays, 2 Bailey (S.. Car.) 354 
 (1831) ; Warner v. N'ew York Cent. R. Co., 52 N. Y. 437, 11 Am. Rep. 724 
 (1873) ; Campbell v. Murray, 62 Ga. 86 (1878) ; Devereux v. Champion Cotton 
 Press Co., 14 S. Car. 396 (18S0) ; Weeks v. Hart, 24 Hun_(N. Y.) iSi 
 (1881) ; Morgan v. Bell, 41 Kans. 345 (1889) ; Lagrone v. Timmerman, 46 
 S. Car. 372, 24 S. E. 290 (1895) ; Frick v. Reynolds, 6 Okla. 638, 52 Pac. 391 
 (1898) , Fdce Fisheries Co. v. Pacific Realty Co., 35 Wash. 535, 77 Pac. 839 
 (1904) ; Coughlin v. Weeks, 75 Wash. 568, 135 Pac. 649 (1913). Contra : Kra- 
 mer V. K ist£t,_jS7 ~P^. 227, 40„ Atl. 1008, 44 L. R. A. 432 (1898), wheTe it 
 was said die proceeding must be treated as a mistrial and the jury discharged. 
 In the words of Mitchell, J.: "When a juror dissents from a sealed verdict 
 there is a necessary choice of evils, a mistrial or a verdict finally delivered 
 under circumstances that justly subject it to suspicion of coercion or im.- 
 proper influence. We are of opmion that the former is the lesser evil. 
 If one juror can dissent so may ail change their view and render a new 
 verdiot exactly opposite to the one they first agreed upon and sealed." If 
 after the separation of the jury the plaintiff's attorney has a conversation 
 with one or more of the jury, following which the jurors dissent from the 
 sealed verdict and afterwards find a larger verdict, the second verdict will 
 be set aside. Martin v. Morelock, 32 III. 485 (1863).
 
 DIEIIL i: KVAXS. 
 
 SuPRF-ME Court op Phnnsylvaxia, 1815, 
 iSerg. & R. (Pa.) 367 
 
 The iurv empaneled in this cause, \vliich was an action for freight 
 and clcnuiriage, found a verdict in these weirds: "We find for the 
 plaintiiT, and are of opinion, that the plaintiff has already received 
 (Hit of proiKM'ty of the defendant, payment in full for the amount of 
 freight to which he is entitled." 
 
 A motion for a new trial was now made by Ingcrsoll, on behalf 
 of the plaintiff, on the ground that the finding was too uncertain 
 to admit of a judgment being entered upon it. He observed that 
 the jury had found for the plaintiff, but had assessed no damages. 
 Thev had expressed an opinion that the freight had been received 
 by tiie plaintiff out of the defendant' property, but had said nothing 
 about clemurrage; and this opinion relates to a set-off, of which n(j 
 notice was given by the defendant's pica. If tlie jury meant to find 
 for the defendant, they ought to have said so. He cited i Ld. Raym. 
 324; 7 Bac. Ab. 37, Verd. R. 
 
 Levy, for the defendant, said that if the court could collect the 
 meaning of the jury from the whole verdict it was sufficient, i Dal). 
 462; Hob. 54; I Salk. 328; 2 Burr. 700; Cro. EUz. 854, pi. 16. 
 
 In this case, the jury having found (for an opinion of a jury is 
 a finding) that the plaintiff had received payment in full for the 
 freight, out of the property of the defendant, their assessing no 
 damages is a plain indication that they meant it is a finding for the 
 defendant. 
 
 TiLGHMAN, C. J. : The plaintiff's declaration sets forth a claim 
 for freight and demurrage. The jury, after being long out, and 
 having declared to the court that they found great difficulty in com- 
 ing to an agreement, at length brought in a verdict as follows : "We 
 find for the plaintiff, and are of opinion that the plaintiff has already 
 received, out of the property of the defendant, payment in full for 
 the amount of freight to w^iich he is entitled." This is certainly an 
 extraordinary verdict and not easily understood. I agree that if there 
 be substance, it is sufficient ; the court will mould it into form. But 
 what did the jury intend? Did they mean to find for the plaintiff 
 generally, both as to freight and demurrage? If so, the verdict is 
 imperfect, because they have found no particular sum, nor have 
 they said that the demurrage has been paid.*^ Perhaps they intended 
 
 "A verdict must be responsive to all the issues made by the pleadings. 
 Miller V. Trets, i Ld. Raym. 324 (1697) ; Smith v. Raymond, I Day (Conn.) 
 189 (1804) ; Middlcton v. Quiglcy, 12 N. J. L. 352 (1831) ; Crouch v. Martin, 
 3 Blackf. (Ind.) 256 (1833) ; McCoy v. Rives, 9 Miss. 592 (1844) ; Moore v. 
 Moore, 67 Tex. 293, 3 S. W. 284 (1887) ; Hackctt v. Jones, 34 111. App. 562 
 (1889) ; Phoenix I. Co. v. Maryland G. M. Co., 146 Fed. 501 (1906) ; Spina- 
 pont V. Vogel Co., 81 Misc. (N. Y.) 127, 142 N. Y. S. 177 (1913) ; IVaco 
 Cement Stone Works v. Smith (Tex. Civ. App.), 162 S. W. 1158 (1913); 
 Smith V. Smith, 141 Ga. 629, 81 S. E. 895 (1914)- 
 
 Where a money judgment is sought, a verdict that fails to find a sum 
 >vith sufficient definiteness to permit the entry of judgment is bad. Miller v^
 
 DIEHL V. EVANS 4^1 
 
 to find for the defendant as to the demurrage, and I think it most 
 probable they did. But then why not find generahy for the defend- 
 ant? For if the plaintiff was entitled to freight only, and had re- 
 ceived full payment for that freight, the verdict ought to have been 
 for the defendant. There seems then to be some mystery in the busi- 
 ness. The jury could not agree, and appear to have come to a com- 
 promise among themselves. When I consider this, and perceive that 
 they have only given their opinion that the plaintiff has received 
 payment for his freight, I am not satisfied that they unanimously 
 intended to find absolutely for the defendant. An opinion is not a 
 legal verdict. The finding must be positive.^*^ With all the inclination, 
 therefore, which I feel to give effect to a verdict, after a full trial on 
 the merits, I can not say that the intention of the jury is expressed 
 with sufficient certainty to authorize the court to enter judgment for 
 the defendant. I am, therefore, of opinion that there should be a new 
 trial. 
 
 Yeates, J. : It Is the duty of a court to mould a verdict into legal 
 form, where the intention of the jury is plain and clear. But this 
 can not be done in the present instance. 
 
 The finding here is not only imperfect, but contradictory. The 
 jury have found for the plaintiffs, but have ascertained no sum in 
 damages. They declare merely their opinion that the plaintiffs have 
 received the amount of the freight, but are wholly silent as to the 
 demurrage, which was one of the grounds of action. It is absolutely 
 impossible to render judgment on this verdict. It must, therefore, be 
 set aside and a new trial awarded. 
 
 Brackenridge, J., concurred. 
 
 New trial awarded.®' 
 
 //owgr, 2 Rawle (Pa.) .q.l (iggp) ; Neville v. Northcidt, y Coldw. (Tenn.) 294 
 (1869) ; IVaison v. Damon, 54 Cal. 278 (1880). But where the amount is not 
 in issue a verdict in favor of a party without assessing damages has been held 
 sufficient. Bell v. Old, 88 Ark. 99, 113 S. W. 1023 (1908) ; Hall v. Bank of 
 Emporia, 133 111. 234 (1890). 
 
 ^'Heyward v. Bennett, 3 Brev. (S. Car.) 113 (1813) ; Jewett v. Davis, 6 
 N. H. 518 (1834) ; Knox v. Breed, 12 111. 61 (1850) ; Day v. Webb, 28 Conn. 
 140 (1859) ; BrucLv. Mausb u rv. 102 Pa. St. .'l'; (18 82) ; Cotirey v. Metropolitan 
 St. R. Co., 73 App. Div. 518, 77 N. Y. S. 222 (1902) ; Gray's Harbor Boom Co. 
 v. Lytle Logging, &c., Co., 38 Wash. 88, 80 Pac. 271 (1905) ; Stevens v. Walker, 
 99 Maine 43, 58 Atl. S3 (1904) ; Nicholson v. Maine Cent. R. Co., 100 Maine 
 342, 61 Atl. 834 (1905), accord. 
 
 "In Patterson v. United States, 2 Wheaton 221, 4 L. ed. 224 (1817), it is 
 said, per Washington, J. : "A verdict is bad if it varies from the issue in a 
 substantial matter, or if it find only a part of that which is in issue. The 
 reason of the rule is obvious; it results from the nature and the end of the 
 pleading. Whether the jury find a general or a special verdict, it is their duty 
 to decide the very point in issue ; and, although the court in which the cause is 
 tried may give form to a general finding, so as to make it harmonize with the 
 issue, yet, if it appears to that court, or to the appellate court, that the finding 
 is different from the issue, or is confirmed to a part only of the matter in 
 issue, no judgment can be rendered upon the verdict. It is true that if the 
 jury find the issue, and something more, the latter part of the finding will 
 be rejected as surplusage; but this rule does not apply to a case where the 
 facts found in th.e verdict are substantially variant from those which are in 
 issue." Where the issue is correctly found surplusage may be disregarded by 
 the court. Cavene v. Michael. 8 Serg. & R. (Pa.) 441 (1822): Fisher v.
 
 462 TRIAL 
 
 PECK f. SNYDER. 
 SuPKEME Court of IMiciiigan, 1864. 
 
 13 Midi. 21. 
 
 Assumpsit to recover damages for not building a house and barn 
 according to contract. After the charge to the jury, defendant's 
 counsel asked the court to direct the jury to find specially and return 
 such finding with their verdict upon these two questions: ist. 
 Whether when plaintiff paid defendant the balance of the contract 
 price and took possession he had not full knowledge that the house 
 and barn were not constructed according to contract. 2nd. Whether 
 the defendant was guilty of any fraud by concealing the facts re- 
 specting said building. The court refused so to direct the jury. De- 
 fendant excepted.^^ 
 
 ]\Iartin, C. J. : I can see but one exception taken below, to 
 which our attention can be directed, and that is to the refusal of the 
 judge to direct the jury to find specially upon certain questions, in 
 case they found a general verdict. This is a novel request. A jury 
 may find a general or a special verdict, according to the exigencies of 
 the case ; but a judge can not direct or compel them to do either and 
 more particularly, not to give reasons for a general finding.^^ 
 
 Affirmed. 
 
 Kean, i_^\Vatt& {Pa.) 259- (1832) ; ^^^h V- Sensemqjj?,o Pa . St. 5 2p> 24 Atl. 
 748' (1892). ~~~ ^ , 
 
 A verdict is not final until recorded. Rottnmnd v. P ennjylvnma R Co., 
 225 Pa. 410, 74 Atl. 341 (1910), hence the jury may amendtheir verdict so as 
 t^ put Tt in form before they separate. Warner v. Railroad Co., 52 N. Y. 437, 
 II Am. Rep. 724 (1873); Griffin v. Lamed, in 111. 432 (1884); Pe^er^. 
 P/Lt7arfe/^/!ta,_ij.4j'a^St_96^ 6A.tl._899 (1886). And the court may recommit 
 the verdict to the jury to Be reformed. Crocker v. Hoffman, 48 Ind. 207 
 (1874) ; Produce Exchange v. Bicbcrhach, 176 Mass. 577, 58 N. E. 162 (igoo) ; 
 Black V. Griggs, 74 Conn. 582, 51 Atl. 523 (1902); Cohen v. Traction Co., 
 141 Iowa 469, 119 N. W. 964 (1909) ; Bronstein v. American Ice Co., 119 
 Md. 132, 86 Atl. 131 (1912) ; Seaboard A. L. R. v. Howe, 139 Ga. 429, 77 
 S. E. 387 (1Q13) ; Harris v. Hipsley, 122 Md. 418, 89 Atl. 852 (1914) ; Grand 
 Rapids & Indiana R. Co. v. Oliver, 181 Ind. 145, 103 N. E. 1066 (1914)- 
 And so the court itself, if the intention of the jury can be clearly ascertained, 
 may carry into effect its findings by amending the verdict so as to make it 
 conform to such intention. Richardson v. Mellish, 3 Bingh. 334 (1825); 
 Parks V. Turner, 12 How. (U. S.) 39, 13 L. ed. 883 (1851) ; Kaon v. Insurance 
 Co., 104 U. S. 106, 26 L. ed. 670 (1881) ; Erie .City Inm JVorks \. Ba rjwuAO^ 
 Pa,^t,l25,_jj[j\m^^p^ 508 (1884), and^see act of March 14, 1872, Pub. L. 
 'zfTlJ^^iWirevTvrTPliodstown, 48 N. J. L. 588, 7 Atl. 301 (1886) ; Hodgktns 
 V. Mead, 119 N. Y. 166, 23 N. E. 559 (1890) ; Italian-Swiss Agricultural Colony 
 V. Pease, 194 111. 98, 62 N. E. 317 (1901) ; Minot v. Boston, 201 Mass. 10, 86 N. 
 E. 783 (1909) ; Wirt v. Rcid, 138 App. Div. 760, 123 N. Y. S. 706 (1910) ; Parkin 
 \^_Sai£_DepositBankjJAjSs^3]i^J^CA^^ '• Kilgas v. Wayne Co., 85 N. 
 
 J. L. 35i,~^rAtl. 1656 ( 1913) . But a verBict will not be altered unless it 
 clearly appears that the alteration will be in accordance with the intention of 
 the jur>'. Spencer v. Goter, l H. Bl. 79 (1788) ; Edwards v. McCaddon, 20 
 Iowa 520 {1866). 
 
 "The statement of facts is abridj^ed and part of the opinion omitted. 
 
 "A verdict is general if, in a criminal case, the jury find the defendant 
 guilty or not guilty, or if in a civil case, they find for the plaintiff and state
 
 ^ 
 
 HAMBLETON V. DEMPSEY 463 
 
 HAMBLETON v. DEMPSEY. 
 
 Supreme Court of Ohio, 185 i. 
 20 Ohio 168. 
 
 Assumpsit by Dempsey and Co. to recover money paid by them 
 to Hambleton as treasurer of Lawrence county, upon a tax demand- 
 ed by him and denied by them to be legal. The money was paid 
 over to the treasurer under protest. 
 
 The cause was submitted to a jury at the May term, 1851, who 
 returned into court their verdict, as follows : 
 
 "We, the jury, find that in case the court, upon the foregoing 
 statement of facts, should be of opinion that the law of the case was 
 with the plaintiffs, that then we find for the plaintiffs, and that the 
 said defendant did assume and promise, etc., and we assess the dam- 
 ages of the said plaintiffs at $185.65. But in case that the court, 
 upon the foregoing statement of facts, should be of opinion that 
 the law of the case is with the defendant, then we, the jury, find 
 for the defendant ; and that the said defendant did not assume and 
 
 the damages, if anv, or find for the defendant. For form see Morrissey v. 
 Schindlcr, 8 Nebr. 672, 26 N. W. 476 (1886). 
 
 A special verdict states the facts as found by the jury and prays the 
 advice of the court thereon, conchiding conditionally, that if upon the whole 
 matter the court shall be of opinion that the issue ought to be found for the 
 plaintiff, then they find for the plaintiff and assess the damages accordingly, 
 and if otherwise, then they find for the defendant. Co. Litt. 228, III Bl. 
 Comm. 2>77', Viner's Abr. Trial, U. f . ; Wall innford V. Dunlapj i^ Pa, St. 31 
 (1850) ; Mum ford V. Wardzvell, 72> U. S. 423, 18 L. ed. 756 (iSStJT ~ 
 
 At common law the jury was liable to be attainted for a false verdict 
 (the writ was not abolished until 1825, Statute 6 Geo. IV, ch. 50, § 60). 
 To relieve jurors from this difficulty it was enacted by the statute of West- 
 minster, II (13 Edw. I, ch. 30, § 2), that "the justices assigned to take 
 assizes shall not compel jurors to say precisely whether it be disseisin, or not, 
 so that they do show the truth of the deed, and require aid of the justices. 
 But if they of their own head will say that it is disseisin, their verdict shall be 
 admitted at their own peril." Upon this statute rests the practice of finding 
 special verdicts. Tidd's Practice, 897. But while the court could request or 
 advise the jury to find specific facts, it could not direct a special verdict, the 
 jury being at liberty to judge for themselves whether they would find a 
 general or a special verdict. Cooley's Constitutional Limitations (7th ed.) 461 ; 
 Mayor of Devizes v. Clark, 3 Ad. & El. 506 (1835) ; Jameson Trial, 6 Yale 
 Law J. 32 (1896) ; Cha vihers JS.. Davis . -^ Whart. (Pa.> 40 (1837) ; Fuller v. 
 Kennebec Mut. Ins. Co., 31 Maine 325 (1850) ; Underwood v. People, 32 Mich. 
 I, 20 Am. Rep. 633 (1875) ; Foster v. Johnson, 70 Ala. 249 (1881) ; Baltimore _ 
 &Oj R- Co. v ,_ S III t>hiir 'springs, S. D., 96 Pa. 65, 4 2 Am. Rep. 529 (1S82). 
 The iorm of verdict and the practice ot submittmg specific questions of fact 
 to the jury is now generally regulated by statute. See Clementson on Special 
 Verdicts, 38 Cyc. 1909; Childress v. Lake Erie & IV. R. Co., 182 Ind. 251, 
 105 N. E. 467 (I9I4)._ Since the decision of the principal case it has been pro- 
 vided by statute in Michigan that the jury in addition to their general verdict 
 may be required to answer five specific questions, put to them by the court 
 on request of counsel. Comp. L. Mich. (1897) vol. 3, § 10237; Hendrickson 
 v. Walker, 22 Mich. 68 (1875) ; Ziicker v. Karpeles, 88 Mich. 413, 50 N. W. 
 373 (1891) ; Rathbim v. Parker, 113 Mich 594, 72 N. W. 31 (1897) ; Beaiidin 
 V. Bay City, 136 Mich. 2>2,Z, 99 N. W. 285 (1904).
 
 464 TRTAL 
 
 proini^o, in inannor ami form, as the said plaintiffs hath above there- 
 of allcs::cil aj^ainst liiin." i\nd thcrcuiion the court took the matter 
 uiuler advisement to the term of Sei)temhcr, 185 1, and then declared 
 its opinion that the said ]^laintilTs were entitled to recover, and ren- 
 dered judgiuent upon said special linding of facts, in favor of said 
 jilaintilYs and against said defendant below, for the sum of $185.65, 
 and interest from the first day of last term. To w^hich opinion of the 
 court rendering said judgment, etc., the defendant excepted. 
 
 The foregoing "statement of facts," referred to by the jury, 
 seems to have been the items of testimony, written and oral, pro- 
 duced on the trial of the parties respectively, but the facts are not 
 embodied in tlie verdict and are only found in the bill of exceptions. 
 
 The writ of error is prosecuted to reverse the judgment of the 
 common pleas, and errors are duly assigned."" 
 
 Spalding, J. : We have no hesitation in reversing the judgment 
 of the court of common pleas. 
 
 The verdict neither finds the issue nor the facts upon which the 
 court may pronounce the finding as a conclusion of law. The stat- 
 ute provides that "no jury shall, in any case, be compelled to give 
 in a general verdict, so that they find a special verdict and show the 
 truth of the fact, and require the aid of the court." 
 
 Here they found no one fact to be true, bur have simply referred 
 the court to the evidence, and told them if upon that evidence they 
 are of opinion the law of the case is with the plaintiffs, then the jury 
 find for the plaintiffs, etc. It is the game of "hide and go seek" 
 between the court and jury. The evidence is laid before the jury and 
 they are told to find the facts. The jury lay the same evidence be- 
 fore the court and tell them to find the facts and law together. Such 
 practice as this we can not sanction. The parties are disposed to 
 treat this as a special verdict. One of the best special pleaders in 
 this or any other country, has laid down the rule governing this sub- 
 ject, in this wise: "If in a special verdict, the jury find only the 
 evidence of a material fact, instead of the fact itself, or otherwise 
 omit to find, upon such a fact, either way, no judgment can be ren- 
 dered upon the finding for either party, since a matter of fact, essen- 
 tial to the determination of the cause, is left unascertained by the 
 verdict." Gould's Pleading, chapter 10, section 62. 
 
 Reversed.®^ 
 
 •"The statement of facts is abridped and the arguments of counsel and 
 part of the opinion of the court omitted. 
 
 "Accord: Holland v. Fisher, O. Bridpman 188 (1662); Rex. v. 
 Huggins, Ld. Raym. 1574 (1730); Fen_v^3lan cliard, 2 Yeate s__(.Pa.) 543 
 (1800) ; Tiinnell v. Watson. 2 MunfTTVa) 283I1811); Bxittsv. Bilhe, 4 
 Price 240 (1817); Barnes v. Williams, il Wheat. (U. S.) 415, 6 L. ed. 508 
 (1826) : Seziard v. Jackson, 8 Cow. (N. Y.) 406 (1826) ; Hill v. Covell, i N. Y. 
 S22 (1848); Thayer v. United Brethren, 20 Pa. St. 60 (1852); Williams v. 
 'liillis, 7 AbbrTrTTNTY.) 90 (1858) ; Garfield v. 7\ night's ferry, &c., Water 
 Co., 17 Cal. 511 (1861) ; Dixon v. Duke, 85 Ind. 434 (1882) ; Hodges v. Easton, 
 106 U. S. 408, I S. Ct. 307 (1882) ; Boyer v. Robertson, 144 Ind. 604, 43 N. E. 
 879 (1895); .Standard S. M. Co. v. Ro\al Ins Co., 201 Pa^ Jy^^^ Atl. 354 
 (1902) ; NiclwTson v. Maine Cent. R. Co., 100 Maine 342, bl Atl. 834 (1905) ; 
 Reffke V. Paper Co., 136 Wis. 53S. 1 17 N. W. 1004 (1Q08) ; Elliott v. Miller, 
 158 Fed. 868 (1908) ; Collins v. Whiteside, 75 N. J. L. 865, 69 Atl. 174 (1908).
 
 CHICAGO & N. R. CO. V. DUNLEAVY 465 
 
 CHICAGO AND NORTHWESTERN RAILWAY CO. v. 
 
 ANNIE DUNLEAVY, ADMX. 
 
 Supreme Court of Illinois. 1889. 
 129 ///. 132. 
 
 Action on the case by Annie Dunleavy, administratrix of the 
 estate of John Dunleavy, deceased, against the Chicago and North- 
 western Railway Company, to recover damages under the statute 
 for the death of plaintiff's intestate. On the trial a verdict for 
 $1,800 was found for plaintiff, upon which judgment was entered; 
 this judgment was affirmed by the appellate court and a further 
 appeal taken to the supreme court.^^ 
 
 Bailey, J. : The next questions to be considered are those which 
 relate to the special findings of the jury. Upon this branch of the 
 case it is urged, first, that the court improperly refused to submit 
 certain questions of fact to the jury; second, that certain of the 
 questions of fact submitted were not properly answered; third, 
 that the special findings of fact are inconsistent with the general 
 verdict. The statute under which special findings may be required 
 is but recent, and the rules of practice thereby established have 
 never before been presented to this court for its considration. We 
 must, therefore, look mainly to the statute itself for our guide in 
 determining the propositions now raised. The statute is as follows: 
 
 Section i. "That in all trials by jury in civil proceedings in this 
 state in courts of record, the jury may render, in their discretion, 
 either a general or a special verdict ; and in any case in which they 
 render a general verdict, they may be required by the court, and 
 must be so required on request of any part}^ to the action, to find 
 specially upon any material question or questions of fact which 
 shall be stated to them in writing, which questions of fact shall be 
 submitted by the party requesting the same to the adverse party be- 
 fore the commencement of the argument to the jury." 
 
 Section 2. "Submitting or refusing to submit a question of fact 
 to the jury when requested by the party, as provided by the first 
 section hereof, may be excepted to and be reviewed on appeal or 
 writ of error as a ruling on a question of law." 
 
 Section 3. "When the special finding of fact is inconsistent with 
 the general verdict, the former shall control the latter and the court 
 may render judgment accordingly."^^ 
 
 "'The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 "^Kurd's 111. Rev. Stat. (1916), p. 2001, § 79. In the absence of any statute, 
 it has been held in a number of states that it is within the reasonable discre- 
 tion of the presiding judge to require or refuse to require the jury to 
 answer pertinent interrogatories in addition to a general verdict. Pierce v. 
 Woodward, 6 Pick. (Mass.) 206 (1828); SvMth v. Putney, 18 Maine 87 
 (1841); McMasters v. Westchester, 25 Wend. (N. Y.) 379 (1841) ; Green 
 V. Clay, 10 Allen (Mass.) 90, 87 Am. Dec. 622 (1865) ; Mair v. Bassett, 117 
 Mass. 356 (1875) ; Gcrmond v. Railroad Co., 65 Vt. 126, 26 Atl. 401 (1803) ; 
 30 — Civ. Proc.
 
 .|66 TRIAL 
 
 It is manifest, of course, that a special finding by a jury upon 
 material questions of fact submitted to them under the provisions of 
 the statute is not a special verdict, but an essentially different pro- 
 ceeding. A special verdict can not be f(3und Avhcre there is a gen- 
 eral verdict, but the special fimlings of fact provided for by the 
 statute can be required only in case a general verdict is rendered. 
 lUit while this is so, much light in relation to special findings upon 
 tiie questions of fact, and their office and objects, may be derived 
 from the rules applicable to special verdicts. Both forms of verdict 
 are provided for by the same statute, and tliey must therefore be 
 construed as being in pari viafcria. 
 
 In giving construction to the statute, the first, and perhaps the 
 most important question, relates to the scope and meaning of the 
 phrase, "material question or questions of fact." May such ques- 
 tions relate to mere evidentiary facts, or should they be restricted to 
 those ultimate facts upon which the rights of the parties directly de- 
 pend? Evidently the latter. Not only does this conclusion follow 
 from analog}^ to the rules relating to special verdicts, but it arises 
 from the very nature of the case. It would clearly be of no avail to 
 require the jury to find mere matters of evidence, because, after 
 being found, they would in no way aid the court in determining 
 what judgment to render. Doubtless, a probative fact from w^hich 
 the ultimate fact necessarily results would be material, for there the 
 court could infer such ultimate fact as a matter of law. But wdiere 
 the probative fact is merely prima facie evidence of the fact to be 
 proved, the proper deductions to be drawn from the probative fact 
 present a question of fact and not of law, requiring further action 
 by the jury, and it can not, therefore, be made the basis of any action 
 by the court. Requiring the jury to find such probative fact is merely 
 requiring them to find the evidence and not the facts, and results in 
 nothing which can be of the slightest assistance to the parties or the 
 court in arriving at the proper determination of the suit. 
 
 The view w-e take is strongly fortified by the provision of the 
 third section of the statute, that, when a special finding of fact is 
 inconsistent with the general verdict, the former shall control. This 
 necessarily implies that the fact to be submitted shall be one which, 
 if found, may in its nature be controlling. That can never be the 
 case with a mere evidentiary fact. A fact which merely tends to 
 
 Walker v. New Mexico S. R. Co., 165 U. S. 593, 41 L. ed. 837 (1897) ; Ellis 
 V. Block, 187 Mass. 408, 73 N. E. 475 (1904); Prccdman v. A'. Y., N. H. 
 & H. R. Co., 81 Conn. 601, 71 Atl. 901 (1909) ; D\iffy v. Yor k H aven Water 
 & Power Co., 242 Pa. 146. 83 Atl. 935 (1913) ; yiclor-Anfencan FucWo. v. 
 /^iTccanr/z, 209 1^'ed." 568 (1913). The Xew York Code of 1848 provided that 
 the court mipht instruct the jury, if they rendered a general verdict, to find 
 upon particular Questions of fact to be submitted in writing. William.'; v. 
 Wells, 7 Abb. Pr. 90 (1858); Barkley v. N. Y. Cent. R. Co., 35 App. Div, 
 228, 54 X. Y. S. 766 (1898). Tliis practice has been adopted in many states, 
 by statute or code. Some leave it to the discretion of the court as to whether 
 questions may be propounded. Others require the court to submit interroga- 
 tories to the juT}' on request of a party. See Clementson on Special Verdicts, 
 p. 30, and statutes in appendix; N. Y. Code Civ. Proc, § 1187; i Bums' Ind. 
 Ann. Stat. (1914), §§ 572-3; Cal. Code Civ. Proc. (1915), § 625; Thompson 
 on Trials (2d ed.), § 2668.
 
 CHICAGO & N. R. CO. V. DUNLEAVY 467 
 
 prove a fact in issue without actually proving it, can not be said to 
 be, in any legal sense, inconsistent with a general verdict, whatever 
 that verdict may be. Such inconsistency can arise only where the 
 fact found is an ultimate fact, or one from which the existence or 
 non-existence of such ultimate fact necessarily follows, and that is 
 never the case with that which is only prima facie evidence of the 
 fact sought to be proved. 
 
 The common law requires that verdicts shall be the declaration 
 of the unanimous judgment of the twelve jurors. Upon all matter 
 which they are required to find they must be agreed. But it has 
 never been held that they must all reach their conclusions in the 
 same way and by the same method of reasoning. To require unanim- 
 ity not only in their conclusions, but in the mode by which those con- 
 clusions are arrived at, would in most cases involve an impossibility. 
 To require unanimity, therefore, not only in the result, but also in 
 each of the successive steps leading to such result, would be prac- 
 tically destructive of the entire system of jury trials. To illustrate, 
 suppose a plaintiff trying his suit before twelve jurors, should seek 
 to prove a fact alleged in his declaration by giving evidence of 
 twelve other facts, each having an independent tendency to prove the 
 fact alleged. The evidence of each probative fact, or the conclusions 
 to be drawn from it, might appeal with peculiar force to the belief 
 or judgment of some one of the jurors, but less so to his fellows. 
 The cumulative effect of all the evidence might be such as to leave 
 no doubt in the mind of any member of the panel as to the truth of 
 the fact alleged, still, if the jury are required to find specially as to 
 each probative fact, no one of the whole twelve facts v.-ould be at 
 all likely to meet with the unanimous concurrence of the entire 
 jury. As to each they would be compelled to confess their inability 
 to agree, or what would be its equivalent, say they did not know or 
 could not tell ; which, if we apply the rules governing special verdicts, 
 would be tantamount to a finding that the fact was not proved or did 
 not exist. If such finding should be required, and should be given 
 the effect of controlling the general verdict, the result would be, that 
 under such system of trial, general verdicts could but seldom stand. 
 
 However natural the curiosity parties may have to know the 
 precise course of reasoning by which jurors may arrive at verdicts 
 either for or against them, they have no right, under guise of sub- 
 mitting cjuestions of fact to be found specially by the jury, to require 
 them to give their views upon each item of evidence, and thus prac- 
 tically subject them to a cross-examination as to the entire case. 
 Such practice would subserve no useful purpose, and would only 
 tend to embarrass and obstruct the administration of justice ; and we 
 may further say that such practice finds no warrant in our statute. 
 
 We are referred to one case in another state, where, in a suit for 
 personal injuries against a railroad company, the defendant was 
 permitted, under a statute somewhat similar to ours, to put to the 
 jury no less than one hundred and thirty-six interrogatories as to the 
 facts covering, apparently, every possible phase of the evidence. The 
 judgment against the railroad company was reversed for an er- 
 roneous instruction to the jury as to the form of their answer to
 
 46S TRIAL 
 
 questions uhcre the evidence was not sufficient, but no suggestion 
 sconis to have been made tliat any portion of the questions put to 
 the jury were improper. Wliatever may be the view of such prac- 
 tice taken by the courts of other slates, we are unwilUng to give our 
 countenance to its adoption here."* 
 
 In the present case the defendant's counsel prepared and sub- 
 mitted liftecn questions of fact upon which the court was asked to 
 require the jury to make special findings. Of these the eleventh and 
 twelfth were refused. The first was modified and submitted to the 
 jury in its modified form. The residue of tlie questions were sub- 
 mitted as asked. We do not understand that the defendant is now 
 complaining of the action of the court in relation to its eleventh and 
 twelftli questions of fact. The first, as prepared by the defendant's 
 counsel, was as follows: 
 
 I. "What precaution did the deceased take to inform himself 
 of the approach of the train which caused the injury?" 
 
 This was modified by tlie court so as to read as follows : 
 
 I. "Was the deceased exercising reasonable care for his own 
 safety at the time he was killed ?" 
 
 The ultimate fact which it was incumbent upon the plaintiff to 
 prove, and which the defendant sought to disprove, was, tliat the 
 deceased, at the time he w-as killed, was in the exercise of due care. 
 That was one of the issues made by the pleadings, and it w^as one of 
 tlie ultimate facts upon which the plaintiff's right to recover neces- 
 sarily depended. What the deceased did to inform himself of the 
 approach of the train was material only as tending to show reason- 
 able care on his part or the want of it. His acts in that behalf, then, 
 whatever they may have been, were facts which were merely evi- 
 dential in their nature, and while they doubtless would have had a 
 tendency to prove reasonable care or the contrary, there were none 
 of them, so far as the evidence shows, which would have been con- 
 clusive of that question. The question, then, as submitted by the 
 defendant's counsel, sought to obtain a finding as to mere probative 
 facts, and the court, tliercfore, properly refused to require the jury 
 to answer it. The question substituted by the court submitted to the 
 jury a material and controlling fact, and one which could be prop- 
 erly made the subject of a special finding.^^ 
 
 '^ll'ard V. Bitsack, 46 Wis. 407, i N. W. 107 (1879) ; Haney Co. v. Asso- 
 ciation, 119 Iowa 188, 93 N. W. 297 (1903); Evans v. Moseley, 84 Kans. 
 322, 114 Pac. 374 (1911) ; Rogers v. Kansas Co-Opcrative R. Co., 91 Kans. 
 351. "^iJ P<ic- 991 (i9i4)- The Michigan statute limits the number of questions 
 to five. Mich.: Howell's Ann. Stats. (1913). § 12943. 
 
 ""Each question submitted should be limited to a single direct and ma- 
 terial controverted issue of fact, and in such a way that the answer will 
 necessarily be positive, direct and intelligible." Jcn-ell v. Railroad, 54 Wis. 
 610. 12 N. W. 83, 41 Am. Rep. 63 (1882); Morse v. Morse, 25 Ind. 156 
 (1865 J ; Germaine v. Muskegon, 105 Mich. 213, 63 N. W. 78 (1895) ; Morbey 
 V. Chicago, &c., R. Co., 116 Iowa 84, 89 N. W. 105 (1902) ; Drum-Flato Co. 
 V. Edmisson, 208 U. S. 534, 28 Sup. Ct. 367, 52 L. ed. 606 (1907) ; Springfield 
 C. M. Co. V. Gediitis, 227 111. 9, 81 N. E. 9 (1907) ; People v. Commercial Ins. 
 Co., 247 111. 92 (1910); Kuchler v. Stafford, 185 111. App. 199 (1914)- But 
 questions may be allowed the answers to which will establish probative facts 
 from which an ultimate material fact may be inferred as a matter of law. 
 Cale V. Rriddy, 66 Ohio St. 400, 64 N. E. 437 (1502).
 
 CHICAGO & N. R. CO. 1\ DUNLEAVY 469 
 
 Complaint is made to the answers given by the jury to the fourth 
 and lif til questions. Those questions were as follows : 
 
 4. "Did the deceased look to ascertain if said train in question 
 was approaching?" 
 
 5. "Did the deceased listen to ascertain if said train was ap- 
 proaching?" 
 
 To both of these questions the jury answered: "Don't know." 
 
 It is, perhaps, questionable whether the defendant, in order to 
 avail itself of the objection that no proper answer was made to 
 these questions, should not have made it at the time tlie verdict was 
 returned and before the jury was discharged, for then the jury might 
 have been required to complete their verdict by making proper 
 answers. Moss v. Priest, 19 Abb. Prac. (N. Y.) 314.°® But, how- 
 ever that may be, it is manifest that the error, if it be one, can not 
 have been prejudicial to the defendant unless it can be seen that 
 answers to said questions most favorable to the defendant, which of 
 course would have been answers in the negative, w^ould have consti- 
 tuted a finding inconsistent with the general verdict. 
 
 If, then, we treat said qtiestions as having been ansvv-ered in the 
 negative, would such answers, eitlier alone or in connection with the 
 answers to the other questions, have constituted a finding necessarily 
 inconsistent with the general verdict? To the second question, viz., 
 "If the deceased had looked before the accident, could he have dis- 
 covered the approach of the train in time to have avoided the acci- 
 dent?" the jury answered, "Yes," and to the third question, viz., 
 "If the deceased had listened before the approach of said train, could 
 he have discovered the approach of the train in time to have avoided 
 the accident ?" they answered, "If he had concentrated his attention 
 in that particular direction, yes." The first question, viz., "Was the 
 deceased exercising reasonable care for his safety at the time he was 
 killed?" was also answered, "Yes." 
 
 The question then presents itself, whether, if it be admitted that 
 the deceased neither looked nor listened for the train, and also that 
 if he had looked he could have seen it, and if he had listened with 
 his attention concentrated in that direction, he could have heard it 
 in time to avoid the accident, such facts would constitute such con- 
 clusive proof of contributory negligence on the part of the deceased 
 as would have barred a recovery. Undoubtedly a failure to look or 
 listen, especially where it affirmatively appears that looking or listen- 
 ing might have enabled the party exposed to injury to see the train 
 and thus avoid being injured, is evidence tending to show negligence. 
 But they are not conclusive evidence, so that a charge of negligence 
 can be predicated upon them as a matter of law. There may be vari- 
 ous modifying circumstances excusing the party from looking or 
 
 ^Btmtin v. Rose, 16 Ind. 209 (1861) ; Summers v. Greathonse, 87 Ind. 
 205 (1882) ; Dyer v. Taylor, 50 Ark. 314, 7 S. W. 258 (1887) ; Fisk v. Chicago, 
 &c., R. Co., 74 Iowa 424, 38 N. W. 132 (1888) ; Chicago, &c., R. Co. v. Goy- 
 ette, 133 111. 21, 24 N. E. 549 (1890).
 
 470 TUIAI. 
 
 listcnlni:^. aiul that bcinc^ the case, a mere failure to look or listen 
 can not, as a loj^al conclusion, be pronoiniced ne^jlij^encc per se.^'' 
 
 In determining whether the special landings are inconsistent with 
 the general verdict so that the latter must be held to be controlled by 
 the former, this court can not look at the evidence. All reasonable 
 presumptions will be entertained in favor of the verdict, while noth- 
 ing will be presumed in aid of the S[)ecial fmdings of fact. The in- 
 consistency must be irreconcilable, so as to be incapable of being re- 
 moved by any evidence admissible under the issues. Pennsylvania 
 Co. V. S)uitli, 98 Ind. 42; McComas v. Haas, 107 Ind. 512; Redel- 
 shcimcr v. Miller, 107 Ind. 485. Under these principles it must be 
 held that there is no necessary or irreconcilable inconsistency between 
 the special finding and the general verdict, especially in view of the 
 fact that the jury, notwithstanding their finding that the deceased 
 did not look or listen, also found that he was in the exercise of rea- 
 sonable care. 
 
 Affirmed.°« 
 
 SECTION 12. MOTIONS AFTER VERDICT. 
 
 SMITH V. BIESIADA. 
 
 Supreme Court of Indiana, 1909. 
 
 174 Ind. 134. 
 
 Biesiada and others petitioned for the construction of a public 
 drain under section 2 of the Act of March 11, 1907. Acts, 1907, 
 p. 508, section 6141, Burns, 1908. The matter was referred to commis- 
 
 ''Terre Haute & T. R. Co. v. Voelker, 129 111. 540, 22 N. E. 20 (1889) ; 
 Toledo, &c., R. Co. V. Cline, 135 111. 41, 25 N. E. 846 (1890) ; Lctvis v. Long 
 Island R. Co., 162 N. Y. 52, 56 N. E. 548 (1900). Compare North Pcnn. R. 
 Co^-v. Heilcuian, 49 Pa.^St^-Co^ 8& Am. Dec. 482 (1865) ; Pennsylvania R. Cq,. 
 V. Bcalc, 73 Pa. 81:^504, 13 Am. Rep. 753 (1873), and see Patterson's Raif\\-ay 
 Accident Law, §§ 173-183. 
 
 "'Special findings are to be reconciled with the general verdict if they 
 reasonably can be. But where the special finding!? are inconsistent with and 
 antagonistic to the general verdict, the former control and judgment must 
 be entered in accordance with the special findings. Indianapolis, &c., R. Co. 
 V. Stout, 53 Ind. 143 (1876) ; Trevor v. Hazdcy, 99 Mich. 504, s8 N. W. 466 
 (1894) ; Kennedy v. Ball, 91 Hun (N. Y.) 197, 36 N. Y. S. 325 (1895) ; Troy 
 v. Brady, 67 Ohio St. 65, 65 N. E. 616 (1902) ; An-de v. Cole, 99 Minn. 357, 
 109 N. \V. 812 (1906) ; Hau'ley v. Bond, 20 S. Dak. 215, 105 N. W. 464 (1905) ; 
 Connell v. Electric Co., 131 Iowa 622, 109 N. W. 177 (1906) ; Court of Honor 
 V. Dinger, 221 111. 176, 77 N. E. 557 (1906) ; Pittsburgh, &c., R. Co. v. Light- 
 heiser, 168 Ind. 438, 78 N. E. 1033 (1906) ; Plyer v. Pacific P. C Co., 152 Cal. 
 125, 92 Pac. 56 (1907) ; Oshurn v. Raihvay Co., 75 Kans. 746, 90 Pac. 289 
 (1907) ; Ft. Wayne C. Co. v. Page, 170 Ind. 585, 84 N. E. 145 (1908) ; Havlik 
 V. .St. Paul F. & M. Co., 87 Nebr. 427, 127 N. W. 248 (1910) ; Morrow v. 
 Bonebrake, 84 Kans. 724, 115 Pac. 585 (1911); Caledonia County Grammar 
 School V. Kent, 86 Vt. 151, 84 Atl. 26 (1912) ; Ellison v. Greenville & S. R. 
 Co., 94 S. Car. 425, 77 S. E. 123, 78 S. E. 231 (1913) ; Sare v. Hoadley Stone 
 Co., 57 Ind. App. 464, 105 N. E. 582 (1914) ; Duckworth v. Stalnakcr, 78 \V. 
 Va. 247, 81 S. E. 989 (1914).
 
 SMITH V. BIESIADA 47I 
 
 sioners who made a report, to which WilUam Smith filed a remon- 
 strance. A trial by the court resulted in findings for Smith on 
 certain grounds and other findings in favor of the petitioner. Judg- 
 ment was rendered modifying the commissioners' report. Smith 
 appealed, assigning as error the overruling of his motions (a) for a 
 new trial, (b) to dismiss the proceeding, (c) for a venire de novo, 
 (d) in arrest of judgment.^^ 
 
 Montgomery, J. : The motions to dismiss, for a venire de novo, 
 in arrest of judgment, were all made after the judgment establishing 
 the drain had been rendered, and the motion for a new trial over- 
 ruled. It is very clear that the court could not then entertain a 
 motion to dismiss the cause.^ 
 
 A motion for a venire de novo must be made before judgment 
 is rendered on the verdict or finding.^ 
 
 A motion in arrest of judgment must be made before rendition 
 of the judgment sought to be arrested.^ 
 
 It follows that the court did not err in overruling these motions. 
 
 Judgment affirmed.* 
 
 **A part only of the case is printed. 
 
 ^Burns' Annotated Statutes of Indiana (1914), § 340. See Tooher v. 
 Arnoux, 76 N. Y. 397, 20 Alb. Law J. (1879) ; Ames' Cases on Pleading (2d 
 ed.) 269 and notes. 
 
 ^Citing 2 Elliott, Gen. Prac, § 985 ; Shaw v. Merchants' Bank, 60 Ind. 
 83 (1877) ; McClintock v. Theiss, 74 Ind. 200 (1881) ; Deatty v. Shirley, 83 
 Ind. 218 (1882); Potter v. McCorniack, 127 Ind. 439, 26 N. E. 883 (1891); 
 Bennett V. Simon, 152 Ind. 490, 53 N. E. 649 (1899) ; Sloan v. Lick Creek Co., 
 6 Ind. App. 584, 33 N. E. 997 (1893) ; Cannon v. Castleman, 24 Ind. App. 188, 
 55 N. E. Ill (1900) ; McCaslin v. State, 38 Ind. App. 184, 75 N. E. 844 (1906). 
 For the distinction between a venire de novo and a new trial see JVitham 
 V. Lewis, I Wils. 48, 53 (1744) ; Tidd's Practice (2 Am. ed.) 953, and Butcher 
 V. Metis, I Miles (Pa.) 2%?, (1836) in fra. 
 
 'Citing Train V. Cridley, 36 Ind. 241 (1871) ; Hilligos v. Pittsburgh R. 
 Co., 40 Ind. 112 (1872) ; Brownlee v. Hare, 64 Ind. 311 (1878) ; Pastes v. 
 Pastes, 79 Ind. 363 (1881) ; Potter v. McCormack, 127 Ind. 430, 26 N. E. 883 
 (1891) ; Smith v. State, 140 Ind. 343, 39 N. E. 1060 (1894) ; Baylcss v. Jones, 
 10 Ind. App. 102, 27 N. E. 421 (1894). 
 
 ■"Ill Blackstone's Commentaries 386; Tidd's Practice, 934 et seq. ; i 
 Troubat & Haly's Practice (Wharton's ed.), 525. The party who has obtained 
 a verdict is, in theory, immediately entitled to judgment. Van Riper v. Vatt 
 Riper, 4 N. J. L. 156, 7 Am. Dec. 576 (1818) ; Hutchinson v. Boiirs, 13 Cal. 
 50 (1859), but, by the practice in the Court of King's Bench, it was incum- 
 bent upon the prevailing party to enter a rule for judgment nisi causa, which 
 rule expired in four days, and if at the end of four days no sufficient cause 
 was shown to the contrary, judgment could be signed. Rex v. Plkins, 4 Burr. 
 2129 (1767) ; Roberts v. Stacey, 13 East. 21 (1810) ; Willis v. Bennett, Barnes 
 443 {'i^VZl) ; Reynolds v. Simonds, Barnes 446 (1739). Under the modern 
 English rules an application for a new trial is by fourteen days' notice of 
 motion, served within ten days after the trial, order XXXIX, rule 4. 
 
 In the United States, statutes and rules of court usually fix the time 
 for entry of judgment on verdicts and the time within which motions for 
 new trial, for judgment non obstante veredicto and in arrest of judgment 
 should be made. 1 Black on Judgments (2d ed.) 121 ; Goodrmn v. Grimes, 
 185 Mass. 80, 69 N. E. 1053 (1904); N. Y. Code Civ. Proc, §§ 999-1000; 
 Thayer Mfg. Co. v. Steinau, 58 How. Pr. (N. Y.) 315 (1880) ; Dillon v. O'Neal, 
 26 R. I. 87, 58 Atl. 455 (1904) ; 23 P- & L- Dig- of Pa. Dec. 2^070. Pending 
 the disposition of such a motion the entry of judgment is generally held 
 irregular. Stevenson v. Sherwood, 22 111. 238, 74 Am. Dec. 140 (1859) ; 
 Louisville Chemical Works v. Commonwealth, 8 Bush. (K. Y.) 179 (1871) ;
 
 47- TRIAL 
 
 (a) New Trial. 
 
 California Code of Chil Proccdurr, § 657. 
 
 The former verdict or other decision may be vacated and a new 
 trial granted, on the appHcation of the party aggrieved, for any of 
 the following causes, materially affecting the substantial rights of 
 such party: 
 
 1. Irregularity in the proceedings of th*' court, jury, or adverse 
 party, or any order of the court or abuse of discretion by which 
 either party was prevented from having a fair trial ; 
 
 2. Misconduct of the jury; and whenever any one or more of 
 the jurors have been induced to assent to any general or special 
 verdict, or to a finding on any question submitted to them by the 
 court, by a resort to the determination of chance, such misconduct 
 may be proved by the affidavit of any one of the jurors ; 
 
 3. Accident or surprise, which ordinary prudence could not 
 have guarded against ; 
 
 4. Newly discovered evidence, material for the party making 
 the application, which he covild not, with reasonable diligence, have 
 discovered and produced at the trial ; 
 
 5. Excessive damages, appearing to have been given under the 
 influence of passion or prejudice; 
 
 6. Insufficiency of the evidence to justify the verdict or other 
 decision, or that it is against law ; 
 
 7. Error in law, occurring at the trial and excepted to by the 
 party making the application.^ 
 
 Mnrnr/mn '^rminnry V^ E I'thlchrm ^I^:^ T^. SL.J&L. 26 Atl. 237 (1893) ; Lou- 
 tsfiUe V. Middoon, 19 Ky. L. 1386, 43 S. W. 867 (1897) ; Schmidt v. Terry, 
 III Fed. 290 (1901). But, with rare exceptions, a motion for new trial made 
 after the prescribed time has elapsed and judgment has been entered will be 
 denied. R-jjiti g v. Tecs, i Binn. (Pa.) 45 0, 2 Am. Dec. 455 (1808) ; Syracuse^ 
 /W_Jlil Cn V Car others. ()?, Pa. St^ ;_320^ (1869) ; State v. McGozijan, 62 Mo." 
 App. 625 (1895); Nelson v. Farmland Security Co., 58 Nebr. 604, 79 N. W. 
 161 (1899) ; Hilly. Har d_ cr. -^ Pa. Super. Ct. 4 73 (1807) ; Hanniim v. Belcher- 
 to-ii'ti, 19 Pick. (Mass.K3ii (1837); Allen v. Adams, 150 Ind. 409, 50 N. E. 
 387 (1897) ; Wilson v. Dallas, 84 Nebr. 605, 121 N. W. 1128 (1909) ; Walker 
 v. Blake, 13 Ariz. I, 108 Pac. 221 (1910) ; Mann v. Dempster, 181 Fed. 76 
 (1910); Rosner v. Colin, 81 N. J. L. 343, 79 Atl. 1056 (1911). Compare 
 Emma Silver Min. Co. v. Park, 14 Blatch. (U. S.) 411 (1878); Ellis v. 
 Hearn, 132 App. Div. 207, 116 N. Y. S. 977 (1909); Okaaaki V. Snssman, 
 79 Wash. 622, 140 Pac. 904 (1914). Similar rules apply to motions for judg- 
 ment non obstante veredicto, which must be made after verdict and before 
 judgment. Mississippi v. Manchester Commercial Bank, 6 Sm. & M. (Miss.) 
 218 (1846) ; Rol^rhnrhrrv, Puqh, TO W. N. Cns. iV-A.\ 9.^^ ( 1881 ) ; Marsliall- 
 iozi-n S. Co. V. Des Moines B. Co., (Iowa) loi N. W. 1124 (1905), and to 
 motions in arrest of judgment. Burrall v. DiiBois, 2 Dall. (U. S.) 229, i 
 L. ed. 360 (1793) ; State v. Leathers, 61 Mo. 381 (1875) ; Keller v. Stevens, 
 66 Md. 132, 6 Atl. 533 (1886) ; Smith v. State, 140 Ind. 343, 39 N. E. 1060 
 (1894) ; Lodge v. O'Toole, 20 R. I. 300 (1897); Marshall v. Davis, 122 Ky. 
 413 (1906). Compare Sulli'-an v. A'ew Bedford Saz'. Inst., 140 Mass. 260, 
 6 X. E. 83 (1885) -J^iscle V. Ki.<;.<:in qcr,K\ Pa. Super. Ct. 4=;^ (1Q13V 
 
 ''In many of the practice acts of the various states the grounds for new 
 trials are, as in the California Code, expressly enumerated; in others this 
 enumeration is omitted and it is provided that new trials may be granted for
 
 r 
 
 WOOD V. GUNSTON 473 
 
 WOOD V. GUNSTON. 
 
 Upper Bench, 1655. 
 Style's Reports 466' 
 
 Wood brought an action upon the case against Gunston for 
 speaking of scandalous words of him ; and amongst other words for 
 calHng him traytor, and obteyns a verdict against him at the bar, 
 wherein the jury gave 1500/. dammages. Upon the supposition that 
 the dammages were excessive, and that the jury did favour the 
 plaintiff, the defendant moved for a new tryal. But Sergeant May- 
 tiard opposed it, and said that after a verdict the partiality of the 
 jury ought not to be questioned, nor is there any presidents for it in 
 our books of law, and it would be of dangerous consequence if it 
 should be suffered, and the greatness of the dammages given can be 
 no cause for a new tryal, but if it were, the dammages are not here 
 excessive, if the words spoken be well considered, for tliey tend to 
 take away the plaintiff's estate and his life. Windham on the other 
 side pressed for a new tryal, and said it was a packed business, else 
 there could not have been so great dammages, and the court hath 
 power in extraordinary cases, such as this is, to grant a new tryal. 
 Glyn, Chief Justice : It is in the discretion of the court in some 
 cases to grant a new tryal, but this must be a judicial, and not an 
 arbitrary discretion, and it is frequent in our books for the court to 
 take notice of miscarriages of juries, and to grant new tryals upon 
 them, and it is for the people's benefit that it should be so for a jury 
 may sometimes by indirect dealings be moved to side with one party, 
 and not to be indifferent betwixt them, but it can not be so intended 
 of the court; wherefore let there be a new tryal tlie next term, and 
 the defendant shall pay full costs, and judgment to be upon this 
 verdict to stand for security to pay what shall be recovered upon 
 the next verdict.'' 
 
 the reasons usual at common law. Compare Ohio Gen. Code (1910), § 11576; 
 Burns' Ind. Ann. Stat. (1914), § 585; Oklahoma Rev. Laws (1910), § 5033; 
 Lord's Ore. Laws (1909), § 174; Minn. Rev. Laws (i9i4),§ 4198; Howell's Mich. 
 Stat. (2ded.), § 15134; Mass. Rev. Laws (1902), ch. 173, § 112 ; R. L Gen. Laws 
 (1909), ch. 298, § 12; Ga. Code (1911), §§ 6078-6093; N. Y. Code Civ. Proc. 
 §§ 999-1006. As to whether the courts in granting new trials are confined to 
 the enumerated grounds, compare People v. Fair, 43 Cal'. 137 (1872) ; Mc- 
 Mahon v. State, 17 Tex. App. 321 (1S79) ; Svcartont v. IVillingham, 6 Misc. 
 179, 26 N. Y. S. 769, 31 Ahb. N. Cas. 66 (1893), with Zalcski v. Clark, 45 Conn. 
 397 (1877) ; Bartling v. Jamison, 44 Mo. 141 (1869) ; Donnelly v. McArdle, 
 14 App. Div. 217, 43 N. Y. S. 560 (1897). See, also, 14 Enc. PI. & Pr. 707; 
 20 Cjc. 707. As to England, see Rules of the Supreme Court, order XXXIX, 
 rr. 1-8. 
 
 "Style 462 where the chief justice is reported as saying "if the court do 
 believe that the jur>' gave their verdict against their direction given unto 
 them, the court may grant a new trial." 
 
 "'There are instances, in the year-books of the reigns of Edward III, 
 Henry IV and Henry VII of judgments being stayed (even after a trial at 
 bar) and new venires awarded, because the jury had eat and drank without 
 consent of the judge, and because the plaintiff had privately given a paper 
 to a jurjTnan before he was sworn. And upon these the chief justice, Glynn,
 
 474 TRIAL 
 
 in 1655 proiindcd the first precedent that is reported in onr books for prant- 
 inR a new trial upon account of excessive damatjes Riven by the jur>': appre- 
 hending, witli reason, that notorious partiality in the jurors was a principal 
 species of misbehavior. A few years before a practice took rise in the com- 
 mon pleas, of Rrantincr new trials upon the mere certificate of the judge 
 (unfortified by any report of the evidence) that the verdict had passed 
 a.cainst his opinion; though Chief Justice Kollc (who allowed new trials 
 in case of misbehavior, surprise or fraud, or if the verdict was notoriously 
 contrary to the evidence) refused to adopt that practice in the court of 
 kings bench. And at that time it was clearly held for law, that whatever 
 matter was of force to avoid a verdict ought to be returned upon the postca, 
 and not merely surmised by the court ; lest posterity should wonder why a 
 new venire was awarded, without any sufficient reason appearing upon the 
 record. But very earh- in the reign of Cliarlcs the Second new trials were 
 granted upon affidavits; and the former strictness of the courts of law, in 
 respect of new trials, having driven many parties into courts of equity to be 
 relieved from oppressive verdicts, they are now more liberal in granting 
 them; the maxim at present adopted being this that (in all cases of moment) 
 where justice is not done upon one trial, the injured party is entitled to 
 another." Ill Blackstone's Commentaries 387; Y. B. 24 Edw. Ill, 24; Y. B. 
 II Hen. IV 18; Y. B. 14 Hen. VII i; Slade's Case, Style 138 (1648) ; Graves 
 V. Short, Cro. Eliz. 616 (1398) ; Goodman V. Cothcrington, Sid. 235 (1664) ; 
 Rex v. Fitz-W'atcr, 2 Lev. 139 (1675) ; Queen v. Hclston, 10 Mod. 202 (1713) ; 
 Bright v. Eyiwn, I Burr. 3Q0 (1757) ; Com. Dig. Pleader R. 17; Viner's Abr., 
 Trial M. g. ; Thayer on Evidence 170; Hilliard on New Trials 2; Graham and 
 Waterman on New Trials 2; Odger's Pleading and Practice (7th ed.) 331. 
 
 Where the damages claimed are unliquidated the court will not ordi- 
 narily grant a new trial on the ground of excessive damages alone, unless 
 the damages are so large that no jury could reasonably have given them. 
 Praed v. Graham, 24 Q. B. Div. 53 (1889) ; ^^!£/m_v,JVor//f,__LQlSi^£.^ & 
 (J'a.) 399^1823) ; Allen v. Craig, 13 N. J. ir"294T^[^33T; Worster v. Pro- 
 prietlofs, 16 Pick. (Alass.) 541 (1835); Collins v. Albany & S. R. Co., 12 
 Barb. (N. Y.) 492 (1852) ; Billings v. Observer, 150 N. Car. 540, 64 S. E. 435 
 (1909) ; IVirsinjj V-^jnit li, 22 2 Pa. 8, ^70 Ati Q0 6 (19 08) ; or unless, as fre- 
 quently required, the verdict is the result of passion or prejudice. Howley v. 
 Kramer, 36 Misc. 190, 73 N. Y. S. 142 (1901) ; Chlanda v. Transit Co., 213 
 Mo. 244, 112 S. W. 249 (1908) ; Felt v. Puget Sound Electric R. Co., 175 Fed. 
 477 (1909) ; Pinkcrton v. Wisconsin Steel Co., 109 Minn. 117, 123 N. W. 60 
 (1909) ; Hazvkins V. Nuttallburg Co., 66 W. Va. 415, 66 S. E. 520 (1909) ; 
 DeCclles v. Casey, 48 Mont. 568, 139 Pac. 586 (1914) ", Waterman v. Minne- 
 apolis &c. R. Co., 26 N. Dak. 540, 145 N. W. 19 (1914)- But a new trial will 
 be granted if the court concludes that the jury applied the wrong measure 
 of damages or took into consideration matters that they ought not to have 
 considered. Johnston V. Great Western R. Co., L. R. (1904), 2 K. B. 250. 
 The same rules apply where the damages are inadequate, but the power to 
 grant a new trial is more sparingly exercised. Porsdikc v. Stone, L. R. 3 
 C. P. 607 (1868) -.Palmer V. The Leader Publishing Co^.J Supe n Ct. (Pa.). qoQ 
 (1898) ; Toledo R. &c. Co. v. MasonT^rO{\\o St. 463, 9 1 NTX 292 (1910) ; 
 Schmid v. Chicago, M. & St. P. R. Co., 108 IMinn. 329, 122 N. W. 9 (1909) ; 
 Leazitt v. Dow, 105 ]^Iaine 50, 72 Atl. 735 (1908) ; Jackson V. Humbolt, 84 
 Kans. 445, 113 Pac. 1047 (1911) ; Fitlmele v. Forrest, 27 Del. 155, 86 Atl. 733 
 (1913); Montgomery Light, &c., Co. v. King, 187 Ala. 619, 65 So. 998 
 (1914); Doody V. Boston & M. R. Co., 77 N. H. 161, 80 Atl. 487 (1914)- 
 Where, however, the law prescribes the measure of damages, the dis- 
 regard of the law and the award of a sum not warranted by the rule furnishes 
 grounds for a new trial. Walker v. Smith, 4 Dallas 389, I. L. ed. 878, I Wash. 
 (C. C.) 152, Fed. Cas. No. 17086 (1804) ; Commonivealth v. Sessions for Nor- 
 folk County, 5 Mass. 435 (1809) ; McDonald v. Walter, 40 N. Y. 551 (1869) ; 
 Ells'u'orth v. Central Railroad Co., 34 N. J. L. 93 (1869). A verdict in excess 
 of the sum demanded will be set aside. Mclntire v. Clark, J Wend. (N. Y.) 
 330 (1831) ; Garlick v. Bower, 62 Cal. 65 (1882).
 
 QUAGLIANA V. JERSEY CITY, &C. R. CO. 475 
 
 GIACHINO QUAGLIANA v. JERSEY CITY, H. & P. 
 STREET RAILWAY COMPANY. 
 
 >^ 
 
 Supreme Court of New Jersey, 1908. 
 77 N. J. L. Reports loi 
 
 Action for personal injuries. The trial resulted in a verdict for 
 defendant and plaintiff obtained a rule to show cause why the verdict 
 should not be set aside on account of surprise.^ 
 
 Tren CHARD, J. : The contention of the plaintiff is that one 
 Bagley, a material witness for the plaintiff, was influenced by the 
 defendant to absent himself from the trial, and that his absence 
 justifies this court in granting a new trial. 
 
 Misconduct of the prevailing party or his attorney, in inducing 
 a witness to absent himself from the trial, is ground for a new trial. 
 Carey v. King, 5 Ga. 75 ; Barron v. Jackson, 40 N. H. 365 ; Crafts v. 
 Union Mutual Fire Insurance Co., 36 N. H. 44. 
 
 But the misconduct must be clearly established. Marsh v. Mock- 
 ion, I Tryw. & G. 34. 
 
 The affidavits in this case, taken In pursuance of the rule, do not 
 disclose misconduct upon the part of the defendant or its attorney. 
 It appears that both sides desired to use Bagley as a witness. He 
 was subpoenaed by the defendant, but not by the plaintiff. When he 
 appeared at the office of the attorney of the defendant at about ten 
 o'clock in the morning of tlie day of the trial he was intoxicated, 
 and because of his condition was informed that he was not needed 
 that day, but was requested to be in court the next morning. The 
 plaintiff voluntarily moved his case notwithstanding tlie absence of 
 the witness. The action upon the part of the defendant's attorney 
 was, we think, in good faith and evinces no misconduct on his part. 
 The controlling reason why the plaintiff did not have the benefit of 
 Bagley's testimony was that he had neglected to subpoena him. A 
 new trial will not be granted because of the absence of a witness due 
 to the negligence of the applicant. Sherrerd v. Olden, i Halst. 344 ; 
 29 Cyc. 872. 
 
 Let the rule to show cause be discharged with costs.® 
 
 *Part of the opinion of the court is omitted. 
 
 *A new trial may be granted, on the ground of surprise, if a witness 
 is unexpectedly absent under circumstances not due to any negligence on 
 the part of the appHcant who must use reasonable dihgence and prudence 
 to guard against such accidents. Compare Dickenson v. Fisher, 3 Times L. R. 
 459 (1887) ; Ellis V. Hearn, 132 App. Div. 207, 116 N. Y. S. 977 (1909) with 
 Washer v. White, 16 Ind. 136 (1861) ; Atlantic & B. R. Co. v. Johnson, 127 
 Ga. 392, 56 S. E. 482 (1906) ; North Michigan Land &c. Co. v. Kneeland, 149 
 Mich. 495, 112 N. W. 1 1 14 (1907). Generally, a new trial will not be granted 
 on the ground of surprise, accident or mistake unless the occurrence could 
 not have been anticipated by ordinary^ diligence, a matter peculiarly within 
 the discretion of the trial court. Ellis v. Ginsburg, 163 Mass. 143, 39 N. E. 800 
 (1895). "Many matters transpire in the conduct of a case in the courtroom
 
 476 TRIAL 
 
 YOUNG f. KERSHAW; BURTON v. KERSHAW. 
 ^'^ Court of Arn-.AL, 1899. 
 
 Si Law Times Reports 531 
 
 This was an application by the defendant in both actions for 
 judgment or for a new trial upon appeal from the verdict and judg- 
 ment at the trial. The plaintilt in each action sued the defendant to 
 recover damages for a libel which accused the plaintiff of adultery. 
 The defendant pleaded a justification of the libel. The actions were 
 tried togetlicr at York, before Vxt. Commissioner Bosanquet with a 
 jury, and the trial lasted for four days. The jury found a verdict 
 for the plaintiff Young with 100/. damages, and for the plaintiff 
 Burton with 1000/. damages. The defendant applied for a new trial, 
 upon the ground that he had, since the trial, obtained fresh evidence 
 which could not have been obtained by reasonable diligence before 
 the trial. This evidence was that of two youths, and was to the 
 effect tliat tliey had seen adultery committed by the plaintiffs upon 
 an occasion which was alleged to be a different occasion from any 
 sought to be proved at the trial. This evidence was communicated 
 after the trial, to a man who was the co-respondent in a pending 
 divorce suit brought by the plaintiff Young against his wife, and was 
 referred by him to the defendant's solicitors.^" 
 
 Smith, L. J. : This is an application by the defendant for a new 
 trial. The trial took place at York wdth a special jury, and lasted 
 for four days. The action was for a libel published by the defendant 
 
 ^vllich it is almost impossible to present in detail to another tribunal, and of 
 all of which the trial judge is necessarily observant. Further, the trial judge 
 becomes better acquainted with the accustomed acts and habits of the various 
 attorneys in constant practice before him, and therefore can more accurately 
 judge whether a complaint of such surprise, as is here charged (absence from 
 courtroom) is of such a character as to demand relief." Per Horton, C. J., 
 in Green v. Bulkley, 23 Kans. 130 (1879). Alotions for new trials on the 
 ground of surprise present a great variety of circumstances. See De Giou v. 
 Dover, 2 Anst. 517 (1795); Richardson V. Fisher, i Bingh. 145 (1823); 
 Ains-ci'orth V. Sessions, I Root (Conn.) 175 (1790); McQueen v. Stewart, 7 
 Ind. 535 (1S56) ; Archer v. Heidi, 55 Ga. 200 (1875), mistake of witness; 
 Iseley v. Love joy, 8 Blackf. (Ind.) 462 (1847); Land v. Miller, 7 Tex. 463 
 (1852) ; Hel-d.ig v. Railroad Co., 9 Misc. 61, 29 N. Y. S. 9, 59 N. Y. St. 540 
 (1894), intoxication or insanity of witness; Cutler V. Rice, 14 Pick. (Mass.) 
 494 (1833) ; Greene v. Farlow, 138 Mass. 146 (1884), oversight of counsel; 
 Jackson v. Warford, 7 Wend. (N. Y.) 62 (1831) ; Schellons v. Ball, 29 Cal. 
 605 (1866) ; Holbrook v. Nichol, 36 111. 161 (1864) ; Croner v. Insurance Co., 
 18 App. Div. 263, 46 N. Y. S. 108 (1897) ; Peterson v. Barry, 4 B inn (Pa ) 
 481 (1812) ; Martin v. Marvine, i _Phila2JTa.l 280^9 Leg^nt j (Pa.) ( I8^2) ; 
 Green v. IVilmington Trust CoTrS7^Atl. 885, 27 Del. 232 O912) ; Ltisepool 
 L L. G. T. Co. v. Wright, 158 Ky. 290, 164 S. W. 952 (1914), unexpected 
 character of evidence; Rogers v. Niagara Ins. Co., 2 Hall (N. Y.) 559 (1829) ; 
 Chinn V. Taxlor, 64 Tex. 385 (1885); Hapgoods v. Lusch, No. 2, 123 App. 
 Div. 27, 107 N. Y. S. 334 (1907), unexpected ruling; Miller v. Layne, 84 Minn. 
 221, 87 N. W. 605 (1901), unavoidable absence of party. 
 
 *^he arguments of counsel and concurring opinion of Williams, L. J., 
 are omitted.
 
 YOUNG V. KERSHAW 477 
 
 accusing the plaintiffs of adultery. The jury found verdicts for the 
 plaintiffs. The defendant now applies for a new trial, and the only 
 ground upon which that application is really made is that new evi- 
 dence has been discovered which could not have been adduced at 
 the trial. It is stated that two witnesses have since been found. 
 Now, what is the rule as to granting a new trial in order to enable a 
 party to adduce new evidence after an action has once been decided 
 by a jury ? It seems to me that the cases which have been referred 
 to show that a new trial may be granted if new evidence, which 
 could not have been obtained before, has been discovered, vv^hich if 
 it had been adduced at the trial, would have been conclusive, so 
 that the verdict must have been found otherwise than it was. I 
 think that is the rule, apart from all the authorities, which I will not 
 discuss. That being so, what is the new evidence in this case which 
 the defendant has discovered? Would that evidence have been con- 
 clusive of this case if it had been adduced at the trial ? In my opinion 
 it is evidence obtained under suspicious circumstances, and for that 
 reason alone I think that it can not be considered as conclusive." 
 Further, it would only amount to oath against oath, and that is not 
 enough, as was pointed out in Anderson v. Titmas, 36 L. T. 711, by 
 Huddleston, B. How can it be said that this evidence, if adduced, 
 would be conclusive ? Therefore this case does not come within the 
 rule as to granting a new trial upon the ground that new evidence 
 has been discovered since the trial. The appeals must therefore be 
 dismissed, 
 
 Collins, L. J. : I am of the same opinion. The only question 
 which has been argued is whether or not the defendant is entitled to 
 a new trial foi the purpose of adducing new evidence which he has 
 discovered since the trial. It is a matter of the greatest importance, 
 and has always been so treated by the courts, that all material evi- 
 dence, which could with reasonable skill and diligence be produced 
 at the trial, shall be the only evidence which can be considered, and 
 must be adduced at the trial. It is obviously in the public interests 
 that parties, who have gone through the ordeal of litigation and have 
 had their rights settled at the trial, should not afterwards be allowed 
 to patch up the weak parts and fill up the omissions in their case by 
 means of fresh evidence. That is a rule of great importance. It is 
 true tliat in special and exceptional circumstances a new trial has 
 been granted because new evidence has been discovered. But the 
 rule which permits that to be done is fenced around with many limi- 
 tations. The party asking for the new trial must show that tliere 
 was not remissness on his part in adducing all possible evidence at 
 
 "A new trial will not be granted where the new evidence is untrust- 
 worthy or suspicious. McDonald V. People, 123 111. App. 346 (1905) ; Boiakosky 
 V. Phila. & R. Co., 126 Fed. 230 (1903) ; Parker v. Hardy, 41 Mass. 246 
 (1837) ; Greenleaf v. Grounder, 84 Maine 50, 24 Atl. 461 (1891) ; Hueser v. 
 Transportation Co., 143 App. Div. 494, 128 N. Y. S. 415 (1911). Compare 
 Peyser v. Coney Island R. Co., 81 Hun 70, 30 N. Y. S. 610, 62 N. Y. St. 543 
 (1894) ; G reen v. Peoples T. Co.. =; Pa. Dis t R. 284 (i8q6) -Laird V. Ahl, 140 
 App. Div. 659, 125 N. Y. S. 527 (1910) ; Uoldstein v. T^asi Fallow field Tp., 43 
 Pa. Super. Ct. 158 (1910).
 
 .j-S TRIAL 
 
 the trial. Then ac;niii. ns to the class of new evidence the rule is that 
 the new cvitlence must be such that, if adduced, it would be prac- 
 tically conclusive — that is, evidence of such a class as to render it 
 ])robable almost beyond doubt that the verdict would l)e dillerent. 
 In some of the cases which have been cited the new evidence came 
 in to corroborate evidence which was, although not contradicted, 
 weak at the trial, and that corroboration made the previous weak, 
 but uncontradicted, evidence practically conclusive. The other cases 
 were cases in which the new evidence consisted of documents which 
 were not impeached and were conclusive. The case which was most 
 relied ui^on by the appellant — Anderson v. Titmas, 36 L. T. 711 — 
 does not support his contention at all, but is really against him, and 
 is nearly on all fours with the present case. In that case the new 
 evidence was evidence to support the evidence of the defendant at 
 the trial which was contradicted by the plaintiff, and it was held 
 that such evidence was no ground for granting a new trial. There 
 is notliing more than that in the new evidence in this case. It is sim- 
 ply new evidence to contradict evidence given at the trial. Looking 
 at this new evidence, how can it be said that, if adduced, it would be 
 conclusive or even render it probable that the verdict w^ould be dif- 
 ferent? This case, therefore, falls far short of any principle upon 
 w-hich the courts have ever granted a new trial upon the ground of 
 the discovery of fresh evidence. I agree that the appeal must be 
 dismissed. ^- 
 
 Appeal dismissed. 
 
 ^-Before granting a new trial the court will consider the weight and 
 probable effect of the new evidence. There are many authorities which 
 declare, as in the principal case, that the new evidence must be such as to 
 render a different result reasonably certain. Mechanics' Ins. Co. v. Nichols, 
 16 N. J. L. 410 (1S38) ;X^mm.Ji.-ElatiaciaruJZ\Yaits. & S. (Pa.)_AL=; (1844) ; 
 Finclite v. f indite. 68 Hun (N. Y.) 82, 22 N. Y. S. 729, 52 N. Y. St. 243 
 (1893) ; State v. 67am, 82 Maine 472 (1S90) ; Larsen v. Onesite, 21 Utah, 38, 59 
 Pac. 234 (1900); People v. McCitUoiigh. 210 111 488, 71 N. E. 602 (1904); 
 L. & N. R. Co. V. Ueltsch, 31 Ky. L. 931, 104 S. W. 320 (1907), or, at 
 least probable, Hoban v. Sand ford, 64 N. J. L. 426, 45 Atl. 819 (1900); 
 JVatson V. Roth, 191 111. 382 (1901) ; Parsons v. Lewiston, B. & B. S. R. Co., 
 96 Maine 503 (1902) ; Romaine v. Spring Valley, 120 App. Div. 501, 105 N. Y. 
 S. 256 (1907) ; Grafton v. Ball, 164 App. Div. 70, 149 N. Y. S. 447 (1914) ; 
 Vansant v. Kotvalcivski (Del.), 90 Atl. 421 (i9U) ; Wcichman v. Kast, 157 
 Wis. 316, 147 N. W. 369 (1914). "It is not necessary that the newly dis- 
 covered evidence should be such as to require a different verdict, but there 
 must be a probability that the verdict would be different upon a new trial." 
 Cobb v. Cogswell, in Maine 336, 89 Atl. 137 (1913).
 
 KILBY V. ERWIN 479 
 
 x^ KILBY V. ERWIN. 
 Supreme Court of Vermont, 191 i. 
 
 84 Vt. 2.t^ 
 
 Action on the case for damage to plaintiff's sugar maple trees 
 caused by fires claimed to have spread from defendant's land. At 
 the trial the defendant's motion for a continuance, to enable him to 
 procure a plan showing the course of the fires, was refused. Verdict 
 and judgment for plaintiff. Defendant excepted and also petitioned 
 for a new trial. In addition to reversing judgment, the court dis- 
 posed of the petition for a new trial as follows :^^ 
 
 MuNSON, J. : The matter of costs makes it necessary to dispose 
 of the petition for a new trial. We think the case discloses evidence 
 which would have an important bearing upon the main issue on a re- 
 trial, and certainly would be likely materially to change the result as 
 regards the amount of damage sustained. The desired proof was 
 something which the petitioner believed to exist, and knew where to 
 look for, but was unable to get at. He seasonably moved for a con- 
 tinuance which would enable him to procure it, but was required to 
 go to trial without it.^* He now produces evidence of conditions 
 which he was then unable to establish. This evidence is newly dis- 
 covered within the spirit of the rule, if not within the letter of it. 
 
 It appears that the writ was served December third, that counsel 
 was employed the next day, and that on the day following there 
 came a heavy fall of snow, which remained on the ground until after 
 the term at which the case was tried. The plaintiff had prepared for 
 the suit by having a plan made and the premises examined by persons 
 who were afterwards called as witnesses. The petitioner knew of 
 the plaintiff's claim, but due diligence did not require that he incur 
 the expense of preparation until the suit was commenced. After the 
 snow fell no adequate examination was possible. 
 
 The petition characterizes the refusal of the court to grant a 
 
 "Only so much of the case as relates to the motion for a new trial is 
 printed. The statement of facts is supplemented from the syllabus. 
 
 ^^Jackson V. Malin, 15 Johns. (N. Y.) 293 (1818) ; Hanly v. Blanton, i 
 Mo. 49 (1821) ; Smith V. Smith, 119 Cal. 183, 48 Pac. 730, 51 Pac. 183 (1897). 
 The court is not required to grant a new trial on the ground of new evidence 
 unless the evidence could not have been discovered and produced at the 
 trial by the exercise of reasonable diligence. Lccdony v. Pancak e, 4 Yeates 
 (Pa.) 183 (1805); People v. Superior Ct., 5 Wend. (N. Y.) 115 (1830); 
 Thomas v. Consolidated Traction Co., 62 N. J. L. 36, 42. Atl. 1061 (1898) ; 
 Damon v. Carrol, 167 Alr.ss. 198, 45 N. E. 85 (1896) ; Edwards v. Foote, 129 
 Mich. 121, 88 N W. 404 (1901) ; Zimmerman v. Wcigcl, 158 Ind. 370, 63 N. E. 
 566 (1901) ; Chicago v. McNalley, 227 111. 14, 81 N. E. 23 (1907) ; Ca meron 
 V, f^y.z.<:rll, /|o P:i. Su ner. Ct. 40s (iQoq ) ; Rockivcll v. Italian Swiss Co., 10 
 Cal. App. 633, 103 Tac. 162 (1909) ; Green v. li'ilmington Trust Co., 27 Del. 
 232, 187 Atl. 885 (1912) ; Cobb v. Cogswell, in Maine 336, 89 Atl. 137 (1913) ; 
 Adam Roth G. Co. v. Hotel Monticello Co., 183 Mo. App. 429, 166 S. W. 1125 
 (1914) ; Hubbard-Zemurray Steamship Co. v. Crescio, 179 111. App. 56 (1914) ; 
 Daly V. Gregg, 91 Kans. 506, 138 Pac. 614 (1914) ; Robinson v. Smith, 112 
 Law Times 929 (1915).
 
 ^SO TRIAL 
 
 continuance as an abuse of its discretion, and makes this the basis of 
 the apjihcation ; but the substance of the complaint is the petitioner's 
 inability to have certain evidence which a continuance would enable 
 him to'procure; and the (jucstion has been ars:ued as one of newly 
 discovered evidence. The jictitionee contends that the new evidence 
 is merely corroborative of that given on the trial by the petitioner in 
 descriliing an examination he made soon after the fire, and that it 
 does not appear but that the same facts might have been shown by 
 some of those who fought or watched the iire at different stages of 
 its progress. It is evident that an accurate plan, showing completely 
 and in detail the course and spreading of the several fires, produced 
 in connection with the testimony of witnesses who had made a par- 
 ticular examination of the premises for the purpose of testifying 
 fully as to the source and extent of the injury, would be something 
 quite different from any evidence which the petitioner could possibly 
 produce in tlie circumstances in which the case was tried.^^ 
 Petition sustained. 
 
 "Newly discovered evidence that is cumulative merely, will not warrant 
 a new trial. Pike v. Evons, 15 Johns. (N. Y.) 210 (1818) ; Kirk v. Rickerson, 
 46 N. J. L. 13 (1884) ; Trocdcr v. Hyams, 153 Mass. 536, 27 N. E. 775 (1891) ; 
 Slattcrvv. Su preme Tent, 19 Pa. Super. Ct. 108 (1902) ; NortJnvestern El. & 
 Grain CoTv. Smilev, 154 1117 App. 351 Zi9iO)TT-indstrom V. Fitzpatrick, 105 
 Minn. 331, 117 N. W. 441 (1908) ; Harrell v. Southern S. P. Co., 6 Ga. App. 
 "^SS, 65 S. E. 305 (1909) ; Mellincier v. Pcnn a. E,^0^.j22Q_J' 3.. 122. 78 A ll. 66 
 "(1910); Purccll Envelope Co. v. United States, 48 Ct. of CI. (U. S.) 66 
 (1913) ; In re Waldcn, 166 Cal. 446, I37 Pac 35 (1913) ; ^^«''^ v. Fink, 125 
 Minn. 401, 147 N. W. 279 (1914). "Evidence is cumulative which merely 
 multiplies witnesses to any one or more of the facts before investigated, or 
 onlv adds other circumstances of the same p;cneral character. But that evi- 
 dence which brings to light some new and independent truth of a different 
 character, although it tend to prove the same proposition or ground of claim 
 before insisted on, is not cumulative within the true meaning of the rule." 
 Waller v. Graves, 20 Conn. 305 (1850) ; Broadhead v. Marshall, 2 Wm. Bl. 
 955 (1774") ; Smith v. Atkins, 18 Vt. 461 (1846) ; People v. Superior Court, 10 
 Wend. (N. Y.) 286 (1833) ; McCreery Co. v. Equitable B., 54 Misc. 508, 104 
 N. Y. S. 959 (1907) ; Parker Washington Co. v. St. Louis Transit Co., 131 
 Mo. App. 508, 109 S. W. 1073 (1908), where it was discovered after trial 
 that plaintiff did not own the property damaged. Union Cent. Life Ins. Co. v. 
 Loughmiller, 33 Ind. App. 309, 69 N. E. 264 (1904) ; Robinson v. Smith, 112 
 Law Times 929 (1915). Direct and circumstantial evidence are not cumula- 
 tive of each other. Cuyoi v. Butts, 4 Wend. (N. Y.) 579 (1830) ; Dundee 
 Mfg. Co. V. Van Riper, 33 N. J. L. 152 (1868); Dierloff v. Winterfield, 26 
 Wis. 175 (1870) ; Dent v. Simpson, 81 Kans. 217, 105 Pac. 542 (1909) ; Tucker 
 V. Wyoming Coal M. Co., 18 Wyo. 97, 104 Pac. 529 (1900). So, also, direct 
 and opinion evidence are not cumulative. Humphries v. Marshall, 12 Ind. 609 
 (1859) ; Cole v. Cole, 50 How. Pr. (N. Y.) 59 (1875). Thus, the testimony of 
 a surgeon that upon operating he found certain conditions is not merely 
 cumulative to that of a physician that upon an external examination he con- 
 cluded such conditions existed. Bousman v. Stafford, 71 Kans. 648, 81 Pac. 184 
 (1905). Where the contents of a lost instrument has been established by 
 secondary evidence, the original, if found, will be merely cumulative, Wis- 
 consin R. Co. v. Ross, 142 111. 9, 31 N. E. 412 (1892) ; Ray v. Baker, 165 Ind 
 74, 74 N. E. 619 (1905), unless the evidence as to the contents of the origmal 
 was conflicting and the applicant suffered for want of the original, Piatt v. 
 Munroe, 34 Barb. (N. Y.) 291 (1861) ; Protection L. L Co. v. Dill, 91 HI- I74 
 (1878) ; Win field Building & Loan Assn. v. McMiillen, 59 Kans. 493, 53 Pac 
 481 (1898).
 
 FERRAND V. BINGLEY TP. DIST. LOCAL BOARD 481 
 
 FERRAND v. BINGLEY TOWNSHIP DISTRICT LOCAL 
 .0^ BOARD. 
 
 /^ - 
 
 ( Court of Appeal, 1891. 
 
 8 Times Law Reports 70 
 
 This was an action of trespass. The defendants had pulled down 
 an obstruction erected by the plaintiff upon what the defendants 
 alleged to be a public footway. The right of way claimed was over 
 the plaintiff's land. The action was tried before Mr. Justice Day and 
 a special jury at Leeds, when the jury found a verdict for the de- 
 fendants — that is, in favor of the right of way claimed. The plain- 
 tiff moved for a new trial upon the ground that the verdict was 
 against the weight of the evidence. 
 
 Mr. Gainsford Bruce, Q. C, and Mr. Whitaker Thompson ap- 
 peared for the plaintiff; Mr. Tindal Atkinson, Q. C, and Mr. L. A. 
 Kershaw appeared for the defendants. 
 
 Lord Esher, the Master of the Rolls, said that it was necessary 
 again to deal with the rule as to granting new trials which had been 
 laid down by the court of appeal and recognized by the House of 
 Lords. There was always a preliminary question to be determined — 
 namely, whether there was any evidence to go to the jury; and it 
 has been laid down that, if the evidence was such that no reasonable 
 man acting carefully could find for the party upon whom the burden 
 of proof rested, then there was no evidence to go to the jury. The 
 old doctrine of a scintilla of evidence had disappeared. If there 
 was some evidence to go to the jury, then the question arose whether 
 the court could interfere with the verdict upon the ground that it 
 was against the weight of the evidence.^^ This court and the House 
 of Lords had laid down the rule applicable to such a case, and the 
 rule so laid down was nearly as strong as the rule laid down upon 
 the first point." But if that rule was pressed too far, it would be- 
 come the same as the rule on the first point. If it were so pressed, 
 then the result would be that the court could never grant a new trial 
 
 "Because the_ court was not justified, upon the evidence presented, in 
 entering a nonsuit or directing a verdict, it does not follow that, upon a 
 review of the jury's action upon such evidence, the verdict may not be set 
 aside, as against the weight of the evidence. Kinsman v. New York Miit. Ins. 
 Co., 5 Bosw. (N. Y.) 160 (1859) ; Lockwood v. Atlantic Mut. Ins. Co., 47 Mo. 
 50 (1870) ; Denver Tramzvay Co. v. Oivens, 20 Colo. 107, 36 Pac. 848 (1894) ; 
 Metropolitan R. Co. v. Moore, 121 U. S. 558, 30 L. ed. 1022, 7 Sup. Ct. 1334 
 (1887) ; Clark v. Jenkins, 162 Mass. 397, 38 N. E. 974 (1894) ; Mt. Adams & 
 E. P., &€., R. Co. v. Lowery, 74 Fed. 463 (1896) ; Voge v. Pcnnev, 74 Minn. 525, 
 77 N. W. 422 (1898) ; Series v. Scries, 35 Ore. 289, 57 Pac. 634 (1899) ; Larkin 
 V. United Traction Co., 76 App. Div. 238, 78 N. Y. S. 538 (1902). Contra: 
 Hensley v. Davidson, 13^ Iowa 106, 112 N. W. 227 (1907). 
 
 ^'' Ryder v. IVomhwcll, L. R. 4 Exch. 32 (1868); Dublin, Wicklow & 
 Wexford R. Co. v. Slatterv, L. R. 3 App. Cas. ims (1878); Solomon v. 
 Bitton, L. R. 8 Q. B. Div. 176 (1878) ; Webster v. Fricdberg, L. R. 172, O. 
 B. Div. 736 (1886); Metropolitan R. Co. v. Wright, L. R. 11 App. Cas. 152 
 (1886) ; Brisbane v. Martin, L. R. App. Cas. 249 (1894) ; Toronto R. Co. v. 
 King, L. R. App. Cas. 260 (1908). 
 
 31 — Crv. Prog.
 
 4^2 TRIAL 
 
 on the groiiml of the verdict being against the weight of evidence. 
 This conrt liad never said so, but it had said tliat it would not inter- 
 fere unless for the strongest reasons possible. But it had not said 
 that it would never interfere. The court would not interfere merely 
 upon the ground that the case upon one side was stronger than the 
 case upon the other. The court must say in the present case whetlier 
 the diliiculties in the way of the defendants' case were not so great 
 that the jury must liave dealt with the evidence wrongly. (His lord- 
 ship tlien went through the evidence, and said that the weight of 
 the e\ idence so greatly preponderated in favor of the plaintiff that 
 the verdict was unsatisfactory, and the case must be tried again.) 
 
 LoKD Justice Lopes concurred. It had been laid down that the 
 verdict of a jury ought not to be disturbed luilcss it was one which a 
 jury, viewing the evidence reasonably, could not properly find. 
 That did not say that a new trial ought not to be granted if the evi- 
 dence strongly preponderated on one side, as it would be tantamount 
 to saying that a verdict ought not to be disturbed no matter how 
 strongly against the weight of the evidence it might be. 
 
 Lord Justice Kay agreed. The verdict must be very strongly 
 against the evidence to induce the court to grant a new trial. 
 
 New trial granted.^* 
 
 "It is within the discretion of the court to grant a new trial where the 
 verdict is contrar}- to the evidence or againr-t the weight of the evidence, and 
 because it is a matter of discretion it is difficult to lay down rules as to the 
 limits of this power. In IlUnois it has been said: "If a verdict is manifestly 
 against the weight of the evidence, it is not necessary that it should further 
 appear that it was not the result of the impartial and honest judgment of the 
 jury, nor that it resulted from prcjiidicc, passion or some improper motive or 
 condition. To permit a verdict wliich is clearly and manifestly against the 
 weight of the evidence to stand, upon the supposition that the jury were 
 impartial and honest, would be as unjust and injurious to the defeated party 
 as though it proceeded from passion, prejudice or some improper motive." 
 Donelson v. East St. Louis K. Co., 235 III. 625 (1908) ; frick V. Aurora, &c. R. 
 Co., 154 111. App. 277 (1910). On the other hand, in Connecticut, it has been 
 said: "To justify the setting aside of a verdict, such verdict should in the 
 opinion of the court be manifestly and palpably erroneous; should be so 
 manifestly against the evidence as to indicate that the minds of the jurj-men 
 were not open to reason and conviction, or that an improper influence was 
 brought to bear. A new trial should be granted only when manifest injustice 
 has been done, and when the wrong is so plain and palpable as to exclude all 
 reasonable doubt of its existence, and clearly to denote that some mistake 
 has been made by the jury in the application of legal principles, or to justify 
 the suspicion of corruption, prejudice, or partiality of the jurj'." Atwood V. 
 Richer, 83 Conn. 171, 76 Atl. 306 (1910) ; Read v. Atlas Co., 83 Conn. 167, 
 76 Atl. 465 (1910) ; Berkouita v. Gas Co., 134 App. Div. 389, 119 N. Y. S. 
 100 (1909); Gottlieb V. Constant, 70 Misc. 380, 127 N. Y. S. 250 (1911); 
 Louisville /. T. R. Co. v. Roemmele, 157 Ky. 84, 162 S. W. 547 (1914) ; 
 Carrier v. Donovan, 88 Conn. 27, 89 Atl. 894 (1914) ; Edzvards v. U'illcy, 218 
 Mass. 363, 105 N. E. 986 (1914). The disposition of each case will depend 
 upon its particular facts, but if the verdict is clearly and decidedly against 
 the weight of the evidence, there is ground for a new trial. See Kohne V. 
 Ins. Co. of N. America, i Wash. (C. C.) 123, Fed. Cas. No. 7921 (1804) ; 
 S'ii; ear ing en \. Bir ch. 4 Yeates (Pa.) 322 (1806) ; Aitken v. McMeckan, L. R. 
 riggFTATCriTon ^TJi V. CVarfe . 19 PaTT:. C. 286 (iS q?) ; Lee v. Chicago M. 
 & O. R. Co., loi W^is. 352, yj N. W. 714 (1898) ; Gnnn v. Union R. Co., 22 R. 
 I. 579, 48 Atl. 1045 (1901) ; Ho'cL'e v. Raymond, 74 Conn. 68, 49 Atl. 854 (1901) : 
 Spoke V. Thomas, 114 Tenn. 458 (1904) ; Phillips v. Laughlin, 99 Maine 26
 
 DUXNIXG V. CROFUTT 483 
 
 SAMUEL S. DUNNING, TRUSTEE, v. FREDERICK B. 
 CROFUTT. 
 
 /^ 
 
 Supreme Court of Errors of Connecticut, 1908. 
 
 81 Conn. loi 
 
 Replevin for one gray mare, three colts and a quantity of hay, 
 corn and tobacco, attached by the defendant officer as the property 
 of William W. Foote in an action in favor of Edward E. Harrison 
 and replevied by the plaintiff, Samuel S. Dunning, as trustee under 
 the will of Sherman Foote, who had devised his farm to the plain- 
 tiff in trust, with a direction that his son William W. Foote should 
 be allowed to live on the farm. The verdict was for the plaintiff for 
 all the property except the gray mare, which was by the verdict di- 
 rected to be returned to the defendant. The defendant having moved 
 for a new trial, the court ordered that the verdict should be set aside 
 unless the plaintiff surrendered tlie three colts to the defendant. The 
 plaintiff having failed to do so, the verdict was set aside and plaintiff 
 appealed.^^ 
 
 Hall, J. : Without repeating here the evidence before us regard- 
 ing the purchase of the gray mare and the payment of the expense 
 of getting her colts, it is sufficient to say of it, that we deem it 
 ample to sustain the conclusion manifestly reached by the jury in 
 ordering the gray mare returned to the defendant, that she w^as not 
 purchased by the plaintiff; that he had no interest whatever in her, 
 but that she was bought and placed upon the farm by William W. 
 Foote; and that the question of the title to the mare having been 
 thus settled by the verdict, and, evidently, in the only manner thought 
 
 (1904); Coalmer v. Barrett, 61 W. Va. 237, 56 S. E. 385 (1907); Bond v. 
 Penm^. Co^^2i8P a. 34, 66 A tl. 983 (1907) ; Black v. Virginia P. C. Uo.i^W^ 
 Va. 121, 55 S. E. 587 (1906) ; Scanncll v. Boston E. R. Co., 208 Mass. 513, 94 
 N. E. 696 (1911) ; Bauer v. Montague M. Co., 163 App. Div. (N. Y.) 589, 
 148 N. Y. S. 990 (1914) ; Maynard v. Des Moines, 159 Iowa 126, 140 N. W. 
 208 (1913). Where, however, there is a conflict of evidence, a verdict 
 against the bare preponderance of evidence will not be disturbed on that 
 ground alone. Camden V. Coivley, I Wm. Bl. 417 (1763) ; Szi'ain v. Hall, 3 
 Wils. C. P. 45 (1770); Peters V. Phoenix Ins. Co., 3 Serg. & R. (Pa.) 25 
 (1817) ; Rice v. Welling, 5 Wend. (N. Y.) 595 (1830) ; Bloom v. Crane, 24 
 111. 48 (i860) ; Commissioner for Railways V. Brown, L. R. 13 App. Cas. 133 
 (1887) ; Shepherd V. Camden, 82 Maine 535, 20 Atl. 91 (1890) ; Pringle v. Guild, 
 119 Fed. 962 (1903) ; Lewis v. Roby, 79 Vt. 487, 65 Atl. 524 (1907) ; Boyd v. 
 Bangor R. &c. Co., ill Maine 332, 89 Atl. 139 (1913) ; Cardivcll v. Norfolk 
 & W. R. Co,. 114 Va. 500, yy S. E. 612 (1913) ; Florida East Coast R. Co. v. 
 Hayes, 66 Fla. 589, 64 So. 274 (1914). 
 
 Under codes authorizing new trials where the verdict is "contrary" to 
 the evidence, a new trial may be granted where the verdict is not sustained 
 by sufficient evidence. "Both forms of expression mean when the weight of 
 the evidence, as a whole, is not sufficient to justify the verdict." Knote v. 
 De Shirley, 84 Kans. 738, 115 Pac. 539 (1911) ; Ferguson v. Gill, 74 Hun 566, 
 26 N. Y. S. 596, 57 N. Y. St. 213 (1893) ; Krakoiver v. Davis, 20 Misc. 350, 
 45N. Y. S. 780 (1897). 
 
 "The statement of facts is abridged from the opinion of the court, a part 
 only of which is printed.
 
 484 TklAL 
 
 by the trial juilgc to 1)C justifiable upon the evidence, it followed, in 
 the absence of evidence showing that any other than the general 
 rule should be applied, that the ownership of the dam carried the 
 title to the three colts which were conceded to be her offspring. 
 2 A. ^: E. Encyc. of Law (2d cd.), 34S. The trial court, therefore, 
 conitnitted no error in holding that the verdict awarding the three 
 colts to the ])laintill' was against the evidence.-*^ 
 
 But the ]ilaintiit has no good groiuid to complain because he 
 must retry the question of ownership of property which the jury has 
 properly found belonged to him. He could have avoided such re- 
 trial if he had surrendered that which the jury unlawfully awarded 
 to him. To secure a further opportunity of contesting the c[uestion 
 of ownership of the colts he was willing to risk the expense and 
 uncertain result of a new trial of the entire case. 
 
 There is no error. 
 
 SAVERY r. BUSICK. 
 
 Supreme Court of Iowa, 1861. 
 II lo-ii'a 487. 
 
 On the twelfth of October, 1857, defendant confessed a judg- 
 ment before tlie clerk of the district court for the sum of three 
 hundred and nine dollars and fifty cents, being the supposed balance 
 due the plaintiff on a fifteen hundred dollar note, dated the twenty- 
 first of July and payable in six months. It was afterwards ascer- 
 tained that a mistake had been made in the computation of interest 
 
 *°In settinp: aside a verdict as "contrarj' to law," the phrase "means that 
 t'^e verdict is one which tlie law does not authorize the jury to render upon 
 the evidence presented to them. The phrase refers to the act of the jury in 
 drawing from the evidence a conclusion which is not justified by it, and for 
 that reason may be said to be contrary to the law. It docs not refer to any 
 act of the court in piving to the jury directions upon which their verdict is 
 to be based, for, although such verdict may be contrary to the law in the 
 sense that it is not authorized by the law, yet, it is not an error for which 
 the jury are responsible, but it is an error for which the court is responsible, 
 but to be pointed out by an exception." Swartont v. Ii'{lliiigha7n, 31 Abb. N. 
 Cas. 66, 6 Misc. 179, 26 N. Y. S. 769 (1893) ; Bryant v. Comm. Ins. Co., 30 
 Mass. 543 (1833) ; Farrant V. Ohninm, 3 B. & Aid. 692 (1820) ; Gregory v. 
 Tuffs, 2 Dowl. P. C. 711 (1834) ; Wcbh v. Du.^ar. 3 Binn^JJ^aJ-320 (1811) ; 
 State V. Layton, 3 Harr. (Del.) 469 (1842) ; Doe v. McDonald, 2 U. C. Q. B. 
 267 (184^) ; Blake v. Shnzv, 10 U. C. Q. B. 180 (18^2) ; Hoffman v. Bosch, 
 iS Kev.360,4 Pac.703 (1884) : IVilson v. IVhiltakcr. <; Phik. (Pa.) 358 (1864) ; 
 ] phr V. Brnrlheck, 102 Pa. St. e^^^ ax Atl. 1006, 73 Am. St. 828 (1899) ; Irwin 
 V. Thompson, 27 Kans. 643 (i!^2);' Perdue v. Bailey, 53 Ga. 333 (1874); 
 Merrill v. Bassctt, cjj Maine 501, 54 Atl. 1102 (1903) ; Cary Mfg. Co. v. Ma- 
 lone, 131 App. Div. 287, 115 N. Y. S. 632 (1909); Massillon Sign &■ Poster 
 Co. v. Buffalo Lick Springs Co., 81 S. Car. 114, 61 S. E. 1098 (1908) ; IVilson 
 V. Tnttlc, 6 Ga. App. 83, 64 S. E. 290 (1909) ; Frits v. Sayre, 77 N. J. L. 
 236, 72 Atl. 425 (1909) ; Morgan v. Los Angeles Pac. Co., 13 Cal. App. 12, 
 108 Pac. 735 (1910) ; Pugh v. Bluff City Excursion Co.. 177 Fed. 399 (1910) ; 
 Buck v. Buck, 122 Minn. 463, 142 N. W. 729 (1913) ; Smyth v. Tennison, 
 24 Cal. App. 519, 141 Pac. 1059 (1914)-
 
 SAVERY V. BUSICK 485 
 
 on said note, and that the true balance due was $384.50, being 
 seventy- five dollars more than the amount for v^hich the judgment 
 was confessed. This last named sum plaintiff alleges that the de- 
 fendant afterwards made a parol promise to pay. Failing to do so, a 
 suit was brought upon said promise to recover the seventy-five dol- 
 lars before a magistrate. A trial being had, a judgment was ren- 
 dered in favor of plaintiff for the amount of his claim. The cause 
 was taken by appeal to the district court, and on a second trial there, 
 the plaintiff claimed to have shown the mistake of seventy-five dol- 
 lars in the confession of the judgment aforesaid, and the defend- 
 ant's promise to pay the same, and asked the court to say to the 
 jury that upon this state of facts the plaintiff was entitled to re- 
 cover, that a moral consideration is sufficient to support a promise 
 in cases where there was originally a sufficient valuable considera- 
 tion upon which action could have been sustained, notwithstanding 
 some positive rule of law might exempt the party from liability. 
 
 The court refused such instruction, and at the instance of the 
 defendant told the jury in substance that a mistake in the confes- 
 sion of the judgment spoken of was no sufficient consideration in 
 law to support a promise to pay the amount of the mistake; that 
 such mistake could only be rectified by appeal to the Supreme Court, 
 or motion to the court rendering the judgment, or by proceeding in 
 equity; and that if the jury should find from the evidence that a 
 judgment had been rendered in the district court upon a note which 
 constituted any part of the claim or promise sued upon, they should 
 find for the defendant. 
 
 The jury in their retirement gave a verdict for plaintiff directly 
 against the instructions of the court, which, upon motion, was set 
 aside, and a new trial granted. From* this ruling of the court the 
 appeal comes. 
 
 _ Lowe, C. J. : Whatever may be our view of the law of this case, 
 it is impossible for us to express it, or consider the questions pre- 
 sented, without going behind the action of the jury in trampling 
 upon the authority of the court, and thereby giving some counte- 
 nance to their assumption. This we are unwilling to do even by the 
 slightest implication. 
 
 It is no more competent for the jury to usurp the powers of the 
 court, than it is for the court to interfere with their province in the 
 ascertainment of facts. And when the jury, in this case, arrogated 
 to themselves the right to determine the law in direct opposition to 
 the instruotions given them by the court, they were guilty of a 
 flagrant abuse of their duties and obligations ; and we will not review 
 this case until it is tried upon the law as it shall be expounded by 
 the court and not by the jury. 
 
 Afifirmed.21 
 
 "Accord: Flem mina v. Marine Ins. Co., 4 W hart. (Pa.) 59 (1839) ; 
 Wood V. Cox, 17 C. B. 280 (1855); Kogcrs v. Mtirray, '3~^osw. '(N. Y.) 
 357 (1858) ; Biinten v. Orient In.<;. Co., 4 Bosw. (N. Y.) 254 (1859) ; Moffatt 
 V. Thompson, 17 N. B. 516 (1877), semhlc ; Paul v. Casselberry. 12 Phila . 
 (Pa.) 313 (1878) ; Dent v. Bryce, 16 S. Car. 1 (1881) ; Crane v. Chicago & 
 N. W. R. Co., 74 Iowa 330, Z7 N. W. 397, 7 Am. St. 479 (1887) ; Standiford
 
 
 ( 
 
 (b) Judgment Non Obstante Verdicto.^' 
 
 W. II. S HIVES V. ICNO COTTON MILLS. 
 
 Supreme Court of North Carolina, 1909. 
 
 151 A'. Car. 290. 
 
 Civil action for personal injuries. The plaintiff, a "boss dyer," 
 fell through a hole in the dyeing department of defendant's mill, 
 made by the removal of two planks by workmen who were making 
 repairs. On the trial the defendant moved for a nonsuit on the 
 ground ( i ) of want of knowledge of the defect on the part of the 
 defendant, (2) that the injury was caused by a fellow servant and 
 (3) that the plaintiff was gvtilty of contributory negligence. The 
 motion was denied, but the trial judge stated that he was doubtful 
 as to the plaintiff's right to recover, upon the whole evidence, and 
 would reserve that question to be passed upon after verdict. The 
 jury having found the issues submitted to them in favor of the 
 plaintiff and assessed his damages at $3,000, the court rendered 
 judgment, "being of opinion, upon the whole record, that plaintiff 
 is not entitled to recover, non obstante veredicto, the action is dis- 
 missed." Whereupon the plaintiff appealed. ^^ 
 
 Browx, J. : In entering a judgment non obstante veredicto for 
 the defendant we think the learned judge below misconceived the 
 usages and practice of the courts in respect to such judgments. At 
 common law they were never rendered for a defendant. 
 
 The usual definition of a judgment non obstante is "a judgment 
 entered by order of the court for the plaintiff in an action at law, 
 notwithstanding a verdict for the defendant." 2 Tidd. Pr. 922 ; Rap. 
 & L. Law Diet. ; Black Law Diet. 
 
 V. Green, 54 Nebr. 10, 74 N. W. 263 (1898) ; Murray v. Heinze, 17 Mont. 
 353, 42 Pac. 1057, 43 Pac. 714 (1895) ; McAllister v. Rocky Fork C. Co., 31 
 Mont. 359, 78 Pac. 595 (1904) ; Fleming v. L. & N. R. R. Co., 148 Ala. 527, 
 41 So. 683 (1906) ; Kaplan v. Shapiro, 53 Misc. 606, 103 N. Y. S. 922 
 (1907); Lynch v. Snead Archiiectiiral Works, 132 Ky. 241, 116 S. W. 693 
 (1909) ; Webber v. Jonesville, 94 S. Car. 189, y7 S. E. 857 (1913) ; Wallace 
 V. ll'eavcr, 47 Mont. 437, 133 Pac. 1099 (1913). Contra: Van Vacterv. Brews- 
 ter, 9 Miss. 400 (1843) ; t^^<^k v. Lend, 2 Ga. I, 46 Am. Dec. 368 (1847) ; 
 Cochrane v. Winbiirn, 13 Tex. 143 (1S54) ; Wellborn v. Weaver, 17 Ga. 267, 
 63 Am. Dec. 235 (1855); Todd v. Liverpool Ins. Co., 18 U. C. C. P. 192 
 (1868); Pittsburgh C. C. R. Co. v. hrs, 12 Ind. App. 602, 40 N. E. 923 
 (1895); Watts V. iX or folk & W. R. Co., 39 W. Va. 196, 19 S. E. 521, 23 
 L. R. A. 674, 45 Am. St. 894 (1894) ; Galligan v. Woonsockct S. R. Co., 27 
 R. I. 363, 62 Atl. 376 (1905) ; St. Louis & M. R. Co. v. Dooley, 77 Ark. 
 561, 92 S. W. 7S9 (1906) semblc; Luken v. Lakeshore & M. R. Co., 248 111. 
 337. 94 N. E. 175 (1911) ; Touslcy v. Pacific E. Co., 166 Cal. 457, 137 Pac. 31 
 (1913). 
 
 "See the cases and notes in Ames's Cases on Pleading (ist cd.) 275; 
 (2d ed.) 264; I Chitty on Plcadinc: (16 Am. ed.) 688; Stephen on Pleading 
 (9th Am. ed.) 97; Gould on Pleading (Will's ed.) 171 ; 14 Am. Law Rev. 494. 
 
 ^The statement of facts is derived, in part, from the opinion of the court, 
 Ik part only of which is printed.
 
 SHIVES V. ENO COTTON MILLS 487 
 
 At common law a judgment non obstante veredicto could be 
 entered only when the plea confessed the cause of action and set 
 matters in avoidance which were insufficient, although found true, 
 to constitute either a defense or a bar to the action. In such case 
 the plaintiff was entitled to a judgment in his favor, notwithstanding 
 a verdict for the defendant. Cotton Mills v. Abernathy, 115 N. Car. 
 403; Walker V. Scott, 106 N. Car. 57; Riddle v. Germanton, 117 N. 
 Car. 387.2* 
 
 The practice was adopted, says Judge Pearson, to discourage 
 sham pleas by the defendant. Moye v. Petway, 76 N. Car. 329. 
 
 Hence it follows that at common law a judgment non obstante 
 could only be granted upon motion of the plaintiff — never for a de- 
 fendant — and that its use was consequently very restricted. 
 
 This rule, however, has been relaxed in many jurisdictions, espe- 
 cially Vv'here counterclaims are pleaded, and where the code system 
 prevails, and it is held that such judgment may be rendered on the 
 pleadings for either partv entitled to it, irrespective of the verdict. 
 II Encyc. PI. & Pr. 914.25 
 
 In no case, however, can such judgment be rendered for any 
 party, except when the pleadings entitle the party against whom 
 the verdict was rendered to a judgment. Grant v. Insurance Co., 76 
 Ga. 575; V/illoughby v. Willoughby, 51 E. C. L. y22', Gregory v. 
 Brunswick, 54 E. C. L. 481 ; McFerran v. McFerran, 69 Ind. 29; 11 
 Encyc. PI. & Pr. 914, and cases cited.^® 
 
 ^*2 Tidd's Pr. (9th ed.) 920 ; Broadbent v. Wilks, — Wiles 360, 364 (1742) ; 
 Biirdick V. Green, 18 Johns. (N. Y.) 14 (1820) ; Dewey v. Humphrey, 5 Pick. 
 (Mass.) 187 (1827) ; Smith v. Smith, 4 Wend. (N. Y.) 468 (1830) ; Roberts 
 V. Dame, ll N. H. 226 (1840); Shreve v. Whittlesey, 7 Mo. 473 (1842); 
 Bellows v. Shannon, 2 Hill (N. Y.) 86 (1841) ; Berry v. Borden, 7 Blackf. 
 (Ind.) 384 (1845) ; Mallory v. Lamphear, 8 How. Pr. (N. Y.) 491 (1853) ; 
 IVillia^ns v. Anderson, 9 Minn. 50 (1864) ; Lough v. Thornton, 17 Minn. 
 253 (1871); Hyer v. Vaughn, 18 Fla. 647 (1882); Burnham v. New York, 
 P. & B. R. Co., 17 R. I. 544, 23 Atl. 638 (1891) ; TilUnghast v. McLeod, 17 
 R. I. 208, 21 Atl. 345 (1891) ; German Ins. Co. v. Frederick, 58 Fed. 144 
 (1893); Virgin Cotton Mills v. Abernathy, 115 N. Car. 402, 20 S. E. 522 
 (1894) ; Stoddard v. Cambridge Mut. Fire Ins. Co., 75 Vt. 253 (1903) ; Fish- 
 hurne v. Robinson, 49 Wash. 271, 95 Pac. 80 (1908) ; Shearer v. Guardian 
 Trust Co., 136 AIo. App. 229, 116 S. W. 456 (1908) ; Ivanhoe Furnace Corp. 
 V. Crozvder, no Va. 387, 66 S. E. 63 (1909) ; Dalenz v. Fitssimmons, 78 N. J. 
 L. 618, 75 Atl. 924 (1910) ; Audit Co. v. Taylor, 152 N. Car. 272, 67 S. E. 
 582 (1910); Strong v. Gunning, 153 111. App. 182 (1910). 
 
 ■^Brown v. Searle, 104 Ind. 218, 3 N. E. 871 (1885) ; Carl v. Granger Coal 
 Co., 69 Iowa 519, 29 N. W. 437 (1886) ; Stewart v. American Exch. Nat. Bank, 
 54 Nebr. 461, 74 N. W. 865 (1898) ; Piano M. Co. v. Richards, 86 Minn. 94 
 (1902) ; Plimkett v. Detroit E. R. Co., 140 Mich. 299, 103 N. W. 620 (1905) ; 
 Whitaker v. Crowder S. Bank, 26 Okla. 786, no Pac. 776 (1910). 
 
 '"Since judgment non obstante veredicto is entered where it appears from 
 the record that the verdict can not be supported, the evidence can not be 
 looked to in support of such a motion. Pittsburgh R. Co. v. Martin, 82 Ind. 
 476 (1882) ; Slivitski V. Wien, 93 Wis. 460, 67 N. W. 730 (1896) ; Lezvis v. 
 Foard, 112 N. Car. 402, 17 S. E. 9 (1893) ; Manning v. Orleans, 42 Nebr. 
 712, 60 N. W. 953 (1894) ; Plunkett v. Detroit E. R. Co., 140 Mich. 299, 103 
 N. W. 620 (1905) ; Baxter v. Irvin, 158 N. Car. 277, 7i S. E. 882 (1912) ; 
 Streitweiser v. Lightbourn, 87 Conn. 527, 89 Atl. 186 (1913). But the practice 
 in some jurisdictions permits such a judgment where all the evidence attain- 
 able has been produced and is conclusive, as a matter of law, on the merits
 
 4SS TKIAL 
 
 It Is manifest that tliis is not a case where, upon the pleadings, 
 jiulsj^ncnt can bo appropriately rendered for the defendant, not- 
 withstandini:: the verdict. 
 
 'I'hc cause is remanded with directions to enter judgment upon 
 tlie verdict. 
 
 Reversed. 
 
 sv.-^i^ /^..>;/- ^-'^^^ ^Arrest of Judgment." 
 
 NOYES, FRENCH & I^RTCKETT 1: 1-:DWARD J. PARKER. 
 Supreme Court of V^ekmont, 1892. 
 
 64 r/. 379- 
 
 Assumpsit to recover $285, the amount of an overdraft paid by 
 the plaintilis upon the defendant's draft for $1,900, the price of 
 two hundred tubs of butter. The plaintiffs claimed that the defend- 
 ant never delivered tliirty of said tubs. On the trial, the court 
 charged that to entitle the plaintiff to recover, the weight of the evi- 
 dence must support their claim that the butter was not delivered. 
 \'erdict and judgment for plaintiffs. The defendant excepts.-^ 
 
 Thompson, J. : After verdict the defendant filed a motion in 
 arrest of judgment, which was overruled, and to this ruling he ex- 
 cepted. At common law, "judgment can never be arrested but for 
 that which appears upon the record itself." Pechy v. Harrison, i 
 Ld. Raym. 232, i Salk. yy\ Sutton v. Bishop, 4 Burr. 2284, 2287. 
 "Such a motion can only be made 'on account of some intrinsic de- 
 fect apparent on the face of the record, which would render the 
 judgment in the case erroneous.'" State v. Carver, 49 Maine 588 
 yy Am. Dec. 275 ; State v. Cr eight, i Brev. (S. Car.) 169, 2 Am. Dec. 
 656; State V. John, 8 Ired. (N. Car.) 330, 49 Am. Dec. 396; i Bouv. 
 Law Diet. (14th ed.) Article, Arrest of Judgment; i Rap. & Law. 
 Law Diet. Article, Arrest of Judgment 2 ; i Blacks. Comm, (Cooley's 
 ed.) Book III, star p. 394.-^ In Walker v. Sargeanf, 11 Vt. 329, the 
 
 in favor of the partv against whom the verdict is rendered. Baxter v. Cove- 
 nant M. L. A., 81 Minn. I, 83 N. W. 459 (1900); Cruikshank v. St. Paul 
 F. I. Co., 75 Minn. 266, 77 N. W. 958 (1899) ; Richmire v. Elevator Co., 11 
 iV. Dak. 453, 92 N. W. 819 (1902) ; Nelson v. Grondahl, 12 N. Dak. 130, 96 
 N. \V. 299 (1903) ; Dalmas v. Kcmble, 21.S Ja. aid, 64 Atl . 559 (1906) ; Ben- 
 nett V. Great K. R. Co., 115 Minn. 128, 131 N. W. 1066 (1911) iMjlfbjv. Yorlc 
 Haven^ '. P- Cc. ^i'^ Pa. 107. 81 Atl. 90 8 (1911) ; Mixon v. Wallis^(Tex. 
 
 ^IvTApp.), 161 S. \Y. 907 (1913) ; N. Y. Code Civ. Proc, § 1185. For the 
 Federal procedure see Young v. Central R. of N. J., 232 U. S. 602, 58 L. ed. 
 750 (1914), supra, and notes. 
 
 -'Gould on Pleading (Wills' ed.) 151; Stephen on Pleading (9 Am. 
 ed.) 96; III Blackstone's Commentaries, 393; Archbold's Pr. (8th ed.), 
 1353; Ames' Cases on Pleading (ist ed.), 265; (2d. ed.), 264 and notes; 23 
 Cyc. 824 ; 5 Enc. L. & P. 501 ; 2 Standard Proc. 979. 
 
 "Only so much of the case as relates to the motion in arrest of judg- 
 ment is printed. 
 
 ''Lee V. Brozcn, 5 Wend. (N. Y.) 221 (1830) ; IVentworth v. Wentworth, 2 
 Minn. 277, 72 Am. Dec. 97 (1858) ; AronsonjL^Sl£E^ki^^^--^-..Ei^S°' 7^
 
 NOYES V. PARKER 489 
 
 court say : "A motion in arrest can be sustained only for matter ap- 
 parent of record, and such things as take place on trial must be placed 
 on record by a bill of exceptions, allowed by the court, before notice 
 can be taken thereof for reversing a judgment, for they would never 
 be proper for a motion in arrest." In Blacks. Comm., above cited, it 
 is said: "And this is an invariable rule with regard to arrests of 
 judgments upon matter of law, 'that whatever is alleged in arrest of 
 judgment must be such matter as would upon demurrer have been 
 sufficient to overturn the action or plea.' * * * gyi- ^j-^g j-ule 
 will not hold e converso, that everything that may be alleged as cause 
 of demurrer will be good in arrest of judgment," for certain omis- 
 sions and errors are aided by a verdict, i Rap. & Lav/. Law Diet. 
 supra. The rule as to the defects that shall be cured by verdict is 
 thus stated in note (i) to Stennel v. Hogg, i Saund. 228, (6th ed. 
 with notes by John Williams, Patterson and Edward Vaughn AVil- 
 liams) : "Where there is any defect, imperfection, or omission in 
 any pleading whether in substance or form, which would have been 
 a fatal objection upon demurrer; yet if the issue joined be such as 
 necessarily required on the trial proof of the facts so defectively or 
 imperfectly stated or omitted, and without which it is not to be pre- 
 sumed that either the judge would direct the jury to give, or the jury 
 would have given the verdict, such defect, imperfection, or omission, 
 is cured by the verdict by the common law ; or, in the phrase often 
 used upon the occasion, such defect is not any jeofail after verdict."^'' 
 Gould's PI. chapter 10, section 13; i Chit. PI. (14th Am. ed.) 673 
 and note ( i ) . "But where no cause of action is stated, the omission is 
 not cured by verdict. For as no right of recovery was necessary to be 
 proved, or could have been legally proved under such a declaration ; 
 there can be no ground for presuming that it was proved at the 
 
 Pa^St. 68 (1871) ; Qmckv^ Miller, 103 Pa. St^_(i883) ; Bond v. Diisiin, 
 112 U: S. 604; 28 L. ed. 8357 5~Su'p. Cnge (1884; •,1Jray v. Commomvealth, 
 92 Va. 772, 22 S. E. 858 (1895) ; Hughes v. Frum, 41 W. Va. 44=;, 23 S. E. 
 604 (1895); Burrows v. Niblack, 84 Fed. in (1898); lVard,v_^Lgkcside_R. 
 Co., 20 Pa. C. C ^494 (1898) ; Washington v. Calhoun,' 103 Ga. 675 (1898); 
 Vanderhorst Brew. Co. v. Amrhine, 98 Md. 406, 56 Atl. 833 (1904) ; Danley 
 V. Hibbard, 222 111. 88, 78 N. E. 39 (1906) ; Stid v. Missouri Par. R. Co., 211 
 Mo. 411, 109 S. W. 663 (1907) ; Hubbard v. Rutland R. Co., 80 Vt. 462, 68 Atl. 
 647 (1908) ; Pelican Assur. Co. v. American Feed, &c., Co., 122 Tenn. 652, 126 
 S. W. 1085 (1909). 
 
 ^°Roe V. Gatehouse, 2 Salk. 663 (1695) J Hall v. Douglas, Barnes, 452 
 (1744) ; Daley v. Atwood, 7 Cow. (N. Y.) 483 (1827) ; Morey v. Homan, 10 
 Vt. 565 (1838) ; Bequette v. Losselle, 5 Blackf. (Ind.) 443 (1840) ; Higgins v. 
 Bogan, 4 Harr. (Del.) 330 (1845) ; Sezvalls Falls Bridge Co. v. Fisk, 23 N. H. 
 171 (1851); Brown v. Harmon, 21 Barb. (N. Y.) 508 (1856); Boilridge v. 
 '■ H erst. 6 Vhih.. (P a.) 391 (1867) ; Harley v. L ebanon Mut. Ins. Co., 120 Pa^St. 
 182, 13 Atl. 833 (1888) ; Johnson v. J ohnsoti, 30~Co^V402, 70 Pac. 692 (1902) ; 
 Bowen v. White, 26 R. I. 68, 58 Atl. 252 (1904) ; Enright v. Gibson, 119 111. 
 App. 411 (1905) ; Danley v. Hibbard, 222 111. 88, 78 N. E. 39 (1906) ; Pitts- 
 btirgh C. C. & S. R. Co. v. Chicago, 144 111. App. 293 (1908) ; F is rip v fCis^ 
 singer, 53 Pa Super. Ct 453 { im2l ; Kansas City Masonic Temple Co. v. 
 Young, 179 Mo. App. 278, 166 S. VV. 838 (1914) ; Rudd v. Buxton, 41 App. 
 Dist. C. 353 (1914). In Massachusetts, by statute, a judgment may not be 
 arrested for a cause existing before verdict unless such cause affects the 
 jurisdiction of the court. McManus v. Thing, 208 Mass. 55, 94 N. E. 293 
 (1911).
 
 490 TRIAL 
 
 trial." '^ Gould's Pi, chapter lo, section 13. The defendant has not 
 pointed out any "intrinsic defect" apparent on the face of the record, 
 whicli under the rules of law as above stated, would render tlie judg- 
 ment of the court below erroneous, and therefore this exception can 
 not avail him. 
 
 luds^ment affirmed.^- 
 
 r 
 
 ^^•ILLIAM ICLLIS, ADMINISTRATOR OF RACHEL 
 PRITCHARD, V. MOSES CULVER. 
 
 Superior Court of Delaware, 1836. 
 2 Harr. (Del.) 129" 
 
 Black, J. : This is an action of replevin for taking and detain- 
 ing a bed and furniture, a dining table, one chest, fifty bushels of 
 corn, six hogs, four sheep, one cow, one horse colt, and one-third of 
 four and a half stacks of fodder, of the goods and chattels of the 
 
 *^Buxet7din v. Sharp, 2 Salk. 662 (1695) ; Copleston v. Piper, i Ld. Raym. 
 191 (1697) ; Barriere v. Na i rac. 2 Pall. (Pa.) 249, 1 L. ed. 368 (1796) ; MOX: 
 field V. /r/ti(£tJL^o^vqe (Fa.) 241 (1 811) ; Jackson v. Peskcd, l M. & S. 234 
 XT^T^\^wyer v. Wliittier, 2 N. H. 315 (1820) ; Smith v. Curry, 16 111. 147 
 (1S54) ; Heddcns v. Younglove, 46 Ind. 212 (1874); Richards v. Travellers' 
 Ins. Co., 80 Cal. 505, 22 Pac. 939 (1889) ; Pierson v. School Dist., 106 Iowa 
 693 (1808) ; Dcanv. Cass, 73 Vt. 314, 50 Atl. 1085 (1901) ; Southern R. Co. v. 
 Maxzvell, 113 Tenn. 464, 82 S. W. 1137 (1904) ; McKulty Y ._0.'Donncli.27 
 Pa. Super Ct. 0.^ (iqo=,) • Hennincj v. Sawpsell, 236 111. 375 86 N. E. 274 
 (1908) ; Metropolitan S. R. Co. v. Adams Express Co., 145 Mo. App. 371, 
 
 130 S. W. loi (1910) ; Hubbard v. Montross Metal Shingle Co., 79 N. J. L. 
 208, 74 Atl. 254 (1909) ; Warner V. Baker, 36 App. (D. C.) 493 (1911) ; Grover 
 Irrigation & Laud Co. v. Lovella Ditch Reservoir & Irr. Co., 21 Wyo. 204, 
 
 131 Pac. 43 (1913)- , , . ^ . ^ 
 "The authorities in the book are very numerous on the subject of defects 
 
 being aided after verdict. It is quite unnecessary to detail a great nvimber of 
 the older cases on the subject, the great majority of them haying arisen 
 upon matters which would now be considered mere form. And it would be 
 a task of some difficulty to reconcile all the decisions upon the subject, 
 partly because the courts have in later times become much more liberal 
 than they were formerly in discriminating between form and substance, 
 and partially because the distinction between the doctrine of intendment at 
 common law and the statute of jeofails, is very often but little attended to 
 in many of the older reports and treatises." i Chitty on Pleading (16 
 Am. ed.) 707. By intendment after verdict, is meant that the court will pre- 
 sume that the particular tiling which appears to be defectively stated, or 
 omitted, was duly proved at the trial. The statutes of jeofails on the other 
 hand expressly provide that judgment after verdict shall not be stayed or 
 reversed for specified errors, chiefly of form, that might have been objected 
 to by demurrer. 
 
 "Judgment will be arrested only for errors which appear on the face ot 
 the record. Carpenter v. Child, i Root (Conn.) 220 (1790) ; SJmner v. RoJ?e- 
 jny^ /\ Ypatps (Pa/) 3 7=; _( 1807) : Walker v. Sargcant, 11 Vt. 327 (1839); 
 Lovcll V. Sabin, 15 N. H. 29 (1844) ; Howard v. State, 6 Ind. 444 (1855) ; 
 Kirk V. Littcrst, 71 Iowa 71, 2,2 N. W. 106 (1887) : Schubkaacl v. Dier stein. 
 1 31 Pa. St. 46. 18 AtL 1059, 6. L. R. A. 481 (1889) ; Harris v. State, 53 Fla. 37, 
 43 So. 311 (1907) ; Kendall v. Kroeger, &c., Grocery Co., 173 111. App. 504 
 (1912) ; Boville v. Dalton P. Mills, 86 Vt. 305, 85 Atl. 623 (1912) ; Dempsey 
 V. Poore (\V. Va.), 83 S. E. 300 (1914)- 
 
 "A part only of the opinion is printed.
 
 ELLIS V. CULVER 491 
 
 plaintiff. The defendant pleaded non cepit and property; and the 
 jury have found for the plaintiff, and assesses his damages to $91.50. 
 
 A motion has been made to arrest the judgment, on the ground 
 that one tenant in common can not maintain replevin for his undi- 
 vided share of a chattel, and that the writ and declaration show that 
 as to a part of the property in controversy (the fodder) the plain- 
 tiff make claim of only one-third part. 
 
 In our judgment a joint tenant or tenant in common can not 
 maintain replevin for his share of an undivided chattel against a 
 co-tenant, nor, as we conceive, against a third person who may have 
 possession of it. The right to the possession is an entire right, and 
 all owners must unite in the action. * * * Where, therefore, 
 the record shows another person to be part owner of the chattel for 
 which replevin is brought, it may be taken advantage of on a motion 
 in arrest of judgment. 
 
 With these impressions as to the law, the court would have no 
 difficulty as to the decision to be made, if this chattel held in common 
 were the only one in controversy in this action. But the WTit and 
 declaration embrace various other articles, and this is the only one 
 which, from tlie record of proof, appears to have been held in com- 
 mon — the plaintiff claims to be the sole owner of all the others. In 
 such a case, ought the court to arrest the judgment? 
 
 The declaration contains but a single count. It may be good for 
 part and bad for the residue. Gould, 195 ; 5 Bacon, 349. Where a 
 verdict is given in an action of slander, in which there is only one 
 count in the narr., and where some of the words are actionable and 
 some are not, the court wuU intend that damages were given for the 
 actionable words only, and render judgment on the verdict Brooke 
 v. Clarke, Croke Eliz. 328; Archbold's PI. 196; 2 Saund. 171, (a) ; 
 I Chitty 384. If several considerations be stated in one assumpsit, 
 and one is void, and the others good, and damages be given ratione 
 praermssoriim, as in Roe v. Gatehouse, i Lord Raym. 146; or, if 
 one of several charges be insufficiently stated, Fontleroy v. Aylmer, 
 I Lord Raym. 239 ; or, if part of the promise set out be a nudum pac- 
 tum, Phette place v. Steer e, 2 Johns. (N. Y.) 443; or, if a count in 
 a narr., contain a sufficient cause of action connected with matter 
 not actionable, Borden v. Fitch, 15 Johns. (N. Y.) 121 ; or, if to a 
 plea in bar to a part of the claim, and not guilty be pleaded as to 
 the residue, the plea in bar be demurred to and sustained, and a ver- 
 dict of "guilty in manner and form as plaintiff in his narr. had al- 
 leged," be rendered, as in Eastman v. Chapman, 1 Day (Conn.) 30; 
 the court in each of these cases held that they would intend that 
 damages were given only for the considerations that were good ; or 
 the matters that were actionable; or the charges that were well 
 stated; and rendered judgment on the verdicts. In an action of tres- 
 pass against baron and feme, Smalley v. Kerfoot, 2 Strange 1094, 
 for entering house, taking goods, and converting them to their use, 
 the court held that as the wife could not convert to her own use, they
 
 40J 
 
 TRIAL 
 
 wouKl iiitcinl that damages wcro given only for entering the house 
 and taking Uie goods, and not for the conversion. 
 
 In Ihincroft v. Coo, Croke James 664, which was an action of 
 trover dc uno risco, anghce a trunk full of hue linen, to the value 
 of £20; and de loia pixidc, anglice a box full of bands, cuffs and 
 shirts, to the value of £ 10, and of divers parcels of other goods, in 
 which £So damages were given; the court refused to arrest the 
 judpnent ; and held that they would intend that damages were given 
 for the trunk only. In the case of Steele v. The IVestern Inland 
 Lock Xaz-igation 'Company, reported in 2 Johns. (N. Y.) 283, the 
 same principle is recognized. 
 
 Upon tlie authority of these cases, and the principles they estab- 
 lish, we are not inclined to arrest the judgment in this suit. The 
 court are to decide this motion from what appears on the record ; 
 from it, no objection is presented to the recovery of any part of the 
 property claimed in the writ, excepting the fodder ; from aught that 
 appears, this action can be maintained by the plaintiffs against the 
 defendant for all the other chattels. It was entirely within the po\yer 
 of the defendant to have withdrawn from the jury the consideration 
 of damages for the fodder. It is by his own act, or by his acquies- 
 cence, tliat damages have been allowed for it, if they have been 
 allowed. He might have demurred, or objected to the evidence, or 
 called on us to instruct the jury not to give damages for the fodder ; 
 and thus confined the jury to those chattels to which there was no 
 objection in law to a recovery by the plaintiff. As he has not adopted 
 either of these modes, but by his acquiescence or silence, allowed the 
 jury to take into consideration this chattel of no great amount, w^ith 
 the otliers for which his action properly lies, we are not disposed to 
 put the plaintiff out of court or award a venire de novo if this could 
 be done, but to infer that damages were given by tlie jury only for 
 those articles of property enumerated in the declaration, for which 
 this action could be brought by the plaintiff, and sustained against 
 the defendant. 
 
 ^Motion to arrest judgment overruled unanimously, and judg- 
 ment as of the October term, when the case was argued.^* 
 
 "Accord: Russell v. Come, i Salk. 119 (1703) ; Doc v. Dycball, 8 B. & 
 C 70 (1828) ; Ring v. Roxhrongh, 2 Tyrw. 468 (1832) ; Steele v. Navigation 
 Co 2 Johns. (N. Y.) 283 (1807) ; Borden v. Fitch, 15 Johns. (N. Y.) 121. 
 8 Am. Dec. 225 (1818) ; Packard v. Slack, 32 Vt. 9 (1859) ; Conway v. Jeffer- 
 son 46 X H 521 (1866) ; otherwise in penal action, Morse v. Eaton, 23 N. H. 
 4i5'(l85i) ; Specht v. Pennsylvania R Co., 7 Pa. C. C. S4 (1889) ; Robbins v. 
 Bossennan, 133 Iowa 318, no N. W. 587 {\907YYKarnnffv: Ketch, 69 N. J. L. 
 499 55 Atl. 163 (1903), overruling Farwell v. Smith, 16 N. J. L. 133 (1837) ; 
 Potts V. Clarke, 20 N. J. L. 536 (1845). Contra: Stirling v. Garrittc, 18 Md. 
 468 (1862) ; Peyton v. Rose, 41 Mo. 257 (1867) ; Flowers v. Smith, 214 Mo. 98, 
 
 112 S. W. 499 (1908). , A A .u u A 
 
 Where a declaration contains several counts, some good and others bad, 
 the common law rule, followed in a number of states, is that if the verdict 
 is general, judgment should be arrested. Some jurisdictions have declined 
 to follow this rule, and in others the same result has been attained by 
 statute, so that in the majority of the states judgment will not be arrested 
 after a general verdict, if there be one good count to which the verdict can be 
 applied. 5 Enc. L. & Pr. 325 I 23 Cyc. 829 ; Leach v. Thomas, 2 M. & W. 427
 
 ^^ 
 
 BUTCHER V. METTS 493 
 
 BUTCHER V. METTS. 
 
 f 
 
 District Court of Phil adelphia,^ 1836. 
 I Miles (Pa.) 233. 
 
 In this case a verdict was rendered for the plaintiff, but judg- 
 ment was arrested on account of the insufficiency of the verdict. ^^ 
 The plaintiff then obtained a rule to show cause why a venire facias 
 de novo should not be awarded, the former trial having proved 
 fruitless. 
 
 Meredith, who had been of counsel with the defendant, resisted 
 the award of a new venire, and contended tliat upon the arrest of 
 the judgment the action was at an end; that the defendant no longer 
 had a day in court, and that there was no way in which he could be 
 brought into court but by a new original. 
 
 I. Norris, contra. 
 
 Jones, J. : An arrest of judgment is In effect nothing more than 
 superseding a verdict for some cause apparent upon the record, 
 which shows that the plaintiff is not entitled to the benefit of the 
 verdict. It is often followed by a judgment for the defendant, that 
 he go without day, but it is not of itself a judgment for the defend- 
 ant. The court may, after an arrest of judgment, award a repleader 
 or a venire de novo without a repleader. Which of these courses is 
 the proper one, depends upon the nature of the defect for which 
 the judgment is arrested."® If it appears by the record that the plain- 
 
 (1837) ; Ames' Cases on Pleading (2d ed.) 260, and the cases there collected. 
 See, also, Ruth V. Kiita, I Wa ttsllPa.) 48q_(i8.1'^) ; Johnson v^Clark, 2 W. 
 N^_Cas.._Xia.X4S4-XiS74) ; Langan v. Enos Fire Escafe Co:, 233 III. 308, S4 
 NTR 267 (1908) ; Klofski V. Railroad S. Co., 235 111. 146, 85 N. E. 274 
 (1908) ; Varn v. Pelot, 55 Fla. 357, 45 So. 1015 (1908) ; Ardison v. ///. Cent. 
 R. Co., 155 111. App. 274 (1910); and compare Hagar v. Norton, 188 Mass. 
 47i 7^ N. E. 1073 (1905) ; Massncco v. Tomassi, 80 Vt. 186, 67 Atl. 551 (1907). 
 
 ^''B utrhpr V. Mntts, i Miles (Pa.) 1 53 (183 6) . 
 
 ^*Accord: State ex rcl. Bond v. Fisher, 230 Mo. 325, 130 S. W. 35 (1910). 
 See, also, Gibson v. Waicrhonse, 5 Maine 19 (1827) ; Pratt v. Thomas, 2 Hill 
 (S. Car.) 654 (1835) ; Kauffman v. Kanffman, 2 Whart. (Pa.l 139 (1836) ; 
 Kevile v. Shriver, 11 G. & J. (Md.) 405 (1841) ; Rabcr v. Jones, 40 Ind. 436 
 (1872); Taylor v. Jones, 52 Ala. 78 (1875); Craivford v. Crockett, 55 Ind. 
 220 (1876) ; Sanner v. Sayne, 78 Ga. 467, 3 S. E. 651 (1887) ; Johnson v. John- 
 son, 30 Colo. 402, 70 Pac. 692 (1902) ; Stid v. Missouri P. R. Co., 211 Mo. 411, 
 109 S. W. 728 (1907). Compare Kitchenman v. Skecl, 3 Exch. 49 (1848). 
 
 As to whether error lies from an order arresting judgment compare 
 Bemis v. Faxon, 2 Mass. 141 (1806) ; Skinner v. Robeson, 4 Yeates (P a^j_^7=> 
 (1807) ; Benjamin y. Armstrong. 2 Serg. & R7 (Pa.) ^02 (1816) : Adam.iv. 
 Mercdew, 3 Y. & Jer. 419 (1829) ; Favor v. Philbrick, 5 N. H. 357 (1831) ; 
 Pozvell V. Kinney, 6 Blackf. (Ind.) 359 (1842) ; Boivie v. Kansas, 51 Mo. 454 
 (1871) ; Daniels v. Denver, 2 Colo. 595 (1875) with Fish v. Weatherwax, 2 
 Johns. Cas. (N. Y.) 215 (1801); Home v. Barney, 19 Johns. (N. Y.) 247 
 (1821) ; People v. Onondaga G. S., 2 Wend. (N. Y.) 631 (1829) ; Wallis v. 
 Sparks, Morr. (Iowa) 20 (1835) ; Garesche v. Emerson, 31 Mo. 258 (i860) ; 
 Morehcad v. International R. Co., 46 Tex. 178 (1876) ; Brazel v. New South 
 Coal Co., 131 Ala. 416 (1901). 
 
 Where judgment is arrested for a defect in substance in pleading a new 
 action may be brought and the former proceeding can not be pleaded as res 
 adjiidicata. Louisville & N. R. Co. v. Beasley, 123 Tenn. 629, 134 S. W. 306 
 (1910J ; State ex rel. Bond v. Fisher, supra. See Myers v. Ftlley, i2jDi%\.. 
 (Pa.) 562 (1903).
 
 494 TRIAL 
 
 tifl has no cause of action, the court will give judgment, after the 
 arrest of judpnent on the verdict, that tiie plaintiff take nothing by 
 his writ, and that the defendant go without day. If issue be joined 
 upon an immaterial point, there being a sufficient cause of action 
 alleged in the declaration, the i)roncr course is to award a repleader. 
 If the ploaclings be sufficient and the issue well joined, but the ver- 
 dict is imperfectly found, it is usual to award a venire de novo; 
 and tiiis it is said may be done upon the motion of the defendant, 
 witliout a motion in arrest of the judgment. 
 
 The venire de novo is an ancient proceeding of the common law. 
 It was in use long before the practice of granting new trials. It fol- 
 lows of course upon the granting of a new trial ; but as a distinct 
 proceeding it is commonly adopted after a bill of exceptions or after 
 a special verdict imperfectly found, but always for some cause ap- 
 parent on the record, and if granted when it should not be, it is error, 
 and tlie award of it may be reversed. 
 
 A new trial, on the other hand, is commonly granted after a gen- 
 eral verdict for some cause not apparent on the record, and it is not 
 assignable for error. Hamhleton v. Veere, 2. Saund. 1716, (n. i); 
 Goodtitle v. Jones, 7 T. Rep. 43, 48; IVitham v. Lewis, i Wils. 48, 
 56; Com. Dig. tit. Pleader, R. 18; i Sellon's Pr. chapter 11, sec- 
 'tion 3, (C. D.) ; Aliller v. Ralston, i Serg. & R. (Pa.) 309; Ebersol 
 V. Krug, 5 Binn. (Pa.) 53; Lessee of Pickering v. Rutty, i Serg. & 
 R. (Pa.) 515- 
 
 In this case the fault was in the verdict. Of course it appears 
 upon record. A venire facias de novo is therefore proper. 
 
 In regard to the objection that the defendant is no longer in court 
 in this action, it should be observed that the judgment was arrested 
 at this term, and no judgment has been entered for the defendant. 
 He is therefore still in court and bound to take notice of tlie further 
 proceedings in the cause. But if the term had been allowed to elapse 
 after the arrest of judgment, and the cause had not been continued 
 by a curia adv. vult, according to strict notions of practice, tlie action 
 would have been discontinued, and the defendant without day in 
 court. 
 
 Venire de novo awarded.
 
 CHAPTER V 
 
 Judgment 
 
 SECTION I. RENDITION AND ENTRY 
 
 3 Blackst. Connn. 395 
 
 Judgments are the sentence of the law, pronounced by the court 
 upon the matter contained in the record;^ and are of four sorts. 
 First, where the facts are confessed by the parties, and the law de- 
 termined by the court; as in case of judgment upon demurrer; 
 secondly, where the law is admitted by the parties and the facts dis- 
 puted; as in case of judgment on a verdict; thirdly, where both the 
 fact and the law arising tliereon are admitted by the defendant; 
 which is the case of judgments by confession or default;^ or, lastly, 
 where the plaintiff is convinced that eitlier fact, or law, or both, 
 are insufficient to support his action, and therefore abandons or 
 withdraws his prosecution; which is the case in judgments upon a 
 nonsuit or retraxit.^ 
 
 The judgment, though pronounced or awarded by the judges, 
 is not their determination or sentence, but the determination and 
 sentence of the law. It is the conclusion that naturally and regularly 
 follows from the premises of law and fact, which stand thus : 
 against him, who hath rode over my corn I may recover damages 
 by law ; but A hath rode over my corn ; therefore I shall recover 
 damages against A. If the major proposition be denied, this is a 
 demurrer in law; if the minor, it is then an issue of fact, but if 
 both be confessed (or determined) to be right, the conclusion or 
 judgment of the court can not but follow.* Which judgment or 
 conclusion depends not therefore on the arbitrary caprice of the 
 judge, but on the settled and invariable principles of justice. The 
 
 ^Gifford V. Livingston^ 2 Den. (N. Y.) 380, 391 (1845) ; State v. Wood, 
 23 N. J. L. 560 (1850) ; Whiteivcll v. Emory, 3 Mich. 84 (1853); Deuel V. 
 Haivke, 2 Minn. 50 (1858) -. Mahoning Cntinty Bank's Appeal, yz Pa. St>_-LSg 
 (1858) ; Ludlow V. Norjolky'Zy Va. 319, 12 S. E. 612 (1891) ; State v. Fleming, 
 147 Mo. I, 44 S. W. 758 (1898) ; State v. Muench, 217 Mo. 124, 117 S. W. 
 25 (1908); McGuire v. Bryant & Co., 53 Wash. 425, 102 Pac. 237 (1909); 
 Consolidated G. Co. V. Strut hers, 41 Mont. 565, III Pac. 152 (1910). 
 
 '^Thompson v. Gilmore, 50 Maine 428 (1861); Frank v. Hardee, 22 La. 
 Ann. 184 (1870) ; Cooper v. Kantcr, 24 Misc. 203, 52 N. Y. S. 625 (1S98) ; 
 
 Mnfrjpfiyr /Ipprnl^ 2 Pa ^n per. Ct. s^ 2 (1896). 
 
 ^Beccher's Case, 8 Co. 115 (1608) ; Harris v. Preston, 10 Ark. 201 (1849) ; 
 Broward v. Roche, 21 Fla. 465 (1885). "A retraxit differs from a nonsuit 
 in that the one is negative and the other positive; the nonsuit is a mere 
 default and neglect of the plaintiff, and therefore he is allowed to begin his 
 suit again upon payment of costs ; but a retraxit is an open and voluntary 
 reunuciation of his suit in court, and by this he forever loses his action." 3 
 Bl. Comm. 296. 
 
 *New York, N. H. & H. R. Co. v. Hungerford, 75 Conn. 76 (1902). 
 
 495
 
 496 JUDGMRNT 
 
 judpncnt. in short, is the remedy ]M-cscrihc(l hy hiw for the redress 
 of injuries; and the suit or action is the vehicle or means of admin- 
 isteriufj it. What that remedy may be, is indeed the result of de- 
 hberation and study to point out ; and therefore the style of tlie 
 judpnent is, not that it is decreed or resolved by the court, for then 
 the judqinent might appear to be their own; but, "it is considered," 
 twisiJcraltDU est per curiam, that the plaintilT do recover his dam- 
 ajjes, his debt, his possession, and the like; which implies that the 
 judi^ment is none of their own; but the act of law, pronounced and 
 declared by tlie court, after due deliberation and inquiry.^ 
 
 ZAHORKA AND OTHERS v. GEITH. 
 
 Supreme Court of Wisconsin, 1906 
 
 129 Wis. 498. 
 
 Appeal from a judgment of the Circuit Court for Milwaukee 
 County. 
 
 In the matter of admitting to probate the last will and testament 
 of one Carl Geith, deceased, the question arose as to whether the 
 
 ^Strictly, a "judgment" is restricted to a proceeding at law, while a "de- 
 cree" is the adjudication of a court of equity, but in jurisdictions that have 
 aboHshed the distinction between law and equity so far as procedure is con- 
 cerned, the final determination of any suit is known as a judgment. Walker 
 V. Walker, 03 Iowa 643, 61 N. W. 930 (1895) ; N. Y. Code Civ. Proc, §1200; 
 Cal. Code Civ. Proc, §577. It is necessary, also, to distinguish between an 
 order and a final judgment. "The former is a decision made during the prog- 
 ress of the cause, either prior or subsequent to final judgment, settling some 
 point of practice or some question collateral to the main issue presented by 
 the pleadings, and necessan,' to be disposed of before such issue can be passed 
 upon by the court, or necessary to be determined in carrying into execution 
 the final judgment. The latter is the determination of the court upon the issue 
 presented by the pleadings, which ascertains and fixes absolutely and finally 
 the rights of the parties in the particular suit in relation to the .'•-ubjcct-matter 
 in litigation, and puts an end to the suit." Loving v. Illslcy, i Cal. 24 (1850) ; 
 Davis V. Barr , q S. & R. (Pa.) 516 (1820); CJMs£US^JL^ L- Assii^J^i^iicuig- 
 tanJr^^^^T^^^^'i^^V^Mcrcer v. Glass, 89 Ky. 199 (1889) ; Ex parte 
 ClnncryTL. K. 12 (J. ii. Div. 342 (1884) ; Onslow v. Commissioners, L. R. 
 25 Q. B. Div. 465 (1890) ; Goldring v. Rcid, 60 Fla. 78, 53 So. 503 (1910). For 
 modern English practice see Rules of Supreme Court, order xl, rules l-io; 
 order xli, rules i-io. 
 
 "Tiie dogget, or as it is commonly called, the docket or docquet, is an in- 
 dex to the judgment, invented by the court for their own ease, and the 
 security of purchasers, to avoid the trouble and inconvenience of turning over 
 the rolls at large. The practice of docketing judgments seem to have first 
 obtained as early as the reign of King Henry the Eighth, in the Court of 
 Common Pleas." 2 Tidd's Practice (9th ed.) 939. The keeping of the dockets 
 was regulated by statute. 7 & 8 William III, ch. 36. Before the statute, it is 
 said, the judgment bound the lands, and the docket was notliing more than an 
 index. After the statute it was deemed necessary that the judgment should 
 be docketed in order to bind the lands as to purchasers and mortgagees. 2 
 Tidd's Practice (9th ed.) 040; Gilbert's Practice C. P. 140 (1737) ; Flower v. 
 Bolinghroke, I Str. 639 (1725) ; Wait v. Carth, Barnes, 261 (1739). But in 
 England today, a judgment does not operate as a charge on land until a writ 
 for the purpose of enforcing it is registered in the Land Registry under the 
 Land Charges Registration and Searches Act of 1888 (51 and 52 Vict., ch. 51), 
 and of 1900 (63 and 64 Vict., ch. 26).
 
 ZAHORKA V. GEITH 497 
 
 defendant was the wife of the testator at the time of his death, and 
 hence whether she was entitled to the rights given to her as widow 
 by statute. The court below found that defendant was the lawful 
 widow of decedent and from the judgment in her favor the heirs 
 at law and legatees and devisees named in the will appealed.® 
 
 Cassoday, C. J. : The important question presented is whether 
 the defendant in this action had been divorced from her former 
 husband, Edward Baehr, before she v/as married to the deceased, 
 Carl Geith, December 8, 1894. Of course, if she had not been so 
 divorced before such marriage, then such marriage was "absolutely 
 void, without any judgment of divorce or other legal proceeding." 
 Sections 2349, 2330, Stat. 1898. In obedience to such statutes this 
 court has so declared. Williams v. Williams, 63 Wis. 58, 61. Upon 
 full hearing of the divorce action and at the close of the trial thereof, 
 the circuit court on September 6, 1890, declared that "judgment is or- 
 dered for plaintiff and against defendant." This is claimed to be a 
 mere order for judgment, which did "not affect the status of the 
 parties so as to render them capable of contracting marriage with 
 others." In support of such claim counsel rely on State v. Eaton, 85 
 Wis. 587, where such language was used. That was a criminal ac- 
 tion for adultery, and this court also held that "if the judgment, 
 when entered, can for any purpose take effect from the date of the 
 order therefor, it can not operate to make an act a crime which was 
 not so when committed, or, if then a crime, to make it one of a 
 higher grade." The ruling of this court in that case seems to assume 
 that when such judgment of divorce should be entered, pursuant 
 to such order, it might take effect for some purposes "from the date 
 of the order therefor." It has been held that "judgment of divorce, 
 after being signed by judge and filed with clerk, is binding upon the 
 parties and their privies, although not entered by the clerk." Estate 
 of Newman, 75 Cal. 213, 7 Am. St. 146. In a later case in that state 
 it was held: "Judgment becomes rendered and the rights of the 
 parties established at the time the court pronounces its decision; 
 and it is not necessary to its validity that it should be in writing or 
 signed by the judge . . . Judgment of divorce becomes effective 
 at the time of its rendition, although it is not entered by the clerk 
 until a subsequent date." Estate of Cook, yy Cal. 220; Allen v. Voje, 
 114 Wis. i.^ 
 
 In ordering judgment for the plaintiff and against the defend- 
 ant in the divorce action here under consideration there was no 
 claim nor mention of alimony to be awarded as in the divorce action 
 considered in State v. Eaton, supra. There can be no question but 
 that the circuit court, in the language quoted above, pronounced 
 
 *The statement of facts is abiidged from the opinion, part o£ which is 
 omitted. 
 
 'Compare Seaman v. Ward, I Hilton (X. Y.) 52 (1856) where it is said, 
 per Daly, J.: "It was admitted, on the trial, that Justice McCarthy rendered 
 judgment, in his mind, within the four days, though it was not entered until 
 afterwards. There is no such thing as a judgment rendered in the mind of 
 the justice. Judgment is a judicial act, not a mental resolution. It is not 
 enough that the judge concludes to render judgment; he must declare it." 
 Accord: Jones v. Walker, 5 Yerg. (Tenn.) 427 (1827), 
 
 32 — Civ. Prog.
 
 498 Jl'lxniKNT 
 
 iiulgiiicnt of tlivorce in favor of this defendant and against Edward 
 Baclir. then residin*;- in Germany. German Am. Bank v. Poivcll, 
 iJi Wis. 575. There was nothin<jf further to be done except for the 
 clerk to eiiter iudjj^nient in obedience to surh direction of the court. 
 '1 he court had fully ]ierformed its judicial functions. The clerk 
 failed to perform his duty as clerk.^ 
 
 The question recurs whether u])on the records of the court and 
 the ]iroofs taken in ojien court and the findings of the court made 
 Mav 19, 1904, as to the facts as they v/ere September 6, 1890, the 
 trial court was justified in ordering judgment in the divorce action 
 i:i<nc pro tunc as of September 6, 1890, and whether the judgment 
 entered May 19, 1904, pursuant to such order mmc pro tunc as of 
 September 6, 1890, was binding and effectual in dissolving the mar- 
 riage relation between this defendant and Edward Baehr as of Sep- 
 teniber 6, 1890. After careful consideration we are constrained to 
 hold that such judgment of divorce was binding and effectual. Thus 
 it is said by Mr. Freeman : "The entry of judgment nunc pro tunc is 
 alwavs proper when a judgment has been ordered by the court but 
 the clerk has failed or neglected to copy it into the record." i Free- 
 man, Tudgm. (4th ed.), § 61.** 
 
 Judgment aitlrmed. 
 
 '"Accord: Huntington v. Charlotte, 15 Vt. 46 (1843); In re Cook, 77 
 Cal. 220, 17 Pac. 923, I L. R. A. 567, n Am. St. 267 (1888) ; Holt v. Holt, 
 107 Cal. 258, 40 Pac. 390 (1895). "The pronoiincin.c: of judgment is a judicial 
 act; the entr>- of record thereof is a ministerial duty. The judgment is com- 
 plete when properl}' declared, though the mechanical act of recording the 
 same has not been performed." Sicher v. Frink, 7 Colo. 148, 2 Pac. 901 (1883) ; 
 Goddard v. Coffin, 2 Ware (U. S.) 381, Fed. Cas. No. 5490 O849) ; As±dcJlLs 
 Atfj^nj '>4-'T'?i7 St t8;^ (T-^54) ; Casement v. Rinpgold, 28 Cal. 335 (1865); 
 'Uray v. Palmer, 28 Cal. 416 (1865) ; Kehoe v. Blcthcn, 10 Nev. 445 (1876) ; 
 Los Angeles County Bank v. Raynor, 61 Cal. 145 (1882) ; Holtby v. Hodgson, 
 L. R. 24 Q. B. Div. 103 (1S89) ; Risk v. Uffelman, 7 Misc. 133, 27 N. Y. S. 
 392, 57 N. Y. St. 102 (1844) ; State v. IVeber, 96 Minn. 422, 105 N. W. 490, 
 113 Am. St. 630 (1905) ; United States v. S toller, 180 Fed. 910 (1910) ; JVallis v. 
 first Aat. Bk., 155 Wis. 533, 14S N. W. 195 (1914) ; Brotm v. Cray, 88 
 Conn. 141, 89 Atl. 1 123 (1914). Compare, under statutes, Callahan v. Votruba, 
 104 Iowa 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. 538 ( 1898) ; Locke 
 V. Hubbard, 9 S. Dak. 364, 69 N. W. 588 (i8g5) ; Maurin v. Carnes, 71 Mmn. 
 308, 74 N. W. 139 (1898) ; Crouse y. M urphy, 140^ a^ St. 335, 2 1 Atl. 358, 
 12 L. R. A. 58, 23 Am. St. 232 (1891) ; State v. Judge of Uiviswn, 128 La. 914, 
 .S5 So. 574 (1911) ; F arris v. Matthezvs, 149 Ky. 455, 149 S. vV. 896 (1912). 
 Courts, in the absence of a statute, have provided by general rule for the 
 entry of judgments by the clerk in certain cases, and in this respect, the act 
 of the clerk is ministerial. Sommerville V. Fiske, 137 Mass. 91 (1884) ; Boyd 
 V. Insur ji a^e Patrol. 20 W. N. Cas. (Pa.') ^^ (1887); Fountalne V. Hudson, 
 93 Mo. 62, 5 S. W. 692, 3 Am. St. 515 (1887) ; Robostelh v. Railroad Co., 34 
 Fed. 507 (1888) ; Crim v. Kessing, 89 Cal. 478, 26 Pac. 1074, 23 Am. St. 491 
 (1891) ; Card V. Meincke, 70 Hun 3S2, 24 N. Y. S. 27S, 54 N. Y. St. 285 
 (1893) ; Rothschild v. Knight. 176 Mass. 48, 57 N. E. 337 (1900) ; Collins v. 
 Davis, 114 N. Y. S. 792 (1909); Central Trust Co. v. Holmes Min. Co., 30 
 Nev. 437, 97 Pac. 390 (1908). 
 
 •Accord: Reily v. Burton, 71 Ind. 118 (1880); Young V. Young, lOS 
 Mo. 624, 65 S. W. 106. 88 Am. St. 440 (lOoD ; Metr.ger v. Morley, 197 HI- 
 208, 64 N. E. 280, 90 Am. St. 158 (1902) ; State v. Goodrich, 159 Mo. App. 
 422, 140 S. W. 629 (1911) ; Stein v. Meyers, 253 111. I99. 97 N. E. 295 (1912) ; 
 Creed v. Marshall, 160 N. Car. 394, 76 S. E. 270 (1912) ; Chester v. Graves.
 
 BELL V. OTTS 499 
 
 BELL V. OTTS 
 
 Supreme Court of Alabama, 1892 
 
 loi Ala. 186. 
 
 Appeal from the Circuit Court of Jefferson. 
 
 Tried before the Hon. James B. Head. 
 
 Tliis was a statutory action of ejectment brought by the appel- 
 lee against the appellants, and sought to recover certain described 
 property. The judgment from which the present appeal is prose- 
 cuted is in the following language : "This day came the parties by 
 their attorneys, and the demurrer to pleas were sustained by the 
 court, the material facts therein averred being provable under tlie 
 general issue; and issue being joined, thereupon came a jury of 
 twelve good and lawful men, to wni : R. W. Beck and eleven others, 
 who, being duly sworn and empanelled according to law, on their 
 oaths say, 'We the jury find for the plaintiff for the land sued for 
 viz., S. y2 of S. E. }i of Sec. 6, T. 13 S., R. 2 W., in Jefferson 
 county, and twenty-five dollars damages for detention as against 
 defendant, Martha Bell,' and judgment is rendered against defend- 
 ants Samuel Mace and Henry Edwards for land sued for, together 
 with all the costs in this behalf expended, for which execution may 
 issue." The opinion renders it unnecessary to notice in detail the 
 several rulings of the lower court. 
 
 Haralson, J.: The verdict in this case was: "We the jury 
 find for the plaintiff for the land sued for (describing it), and 
 twenty-five dollars damages for detention against defendant, Martha 
 Bell." On this verdict a judgment ought to have been entered against 
 all the defendants for the land sued for, for twenty-five dollars 
 against Martha Bell as damages for detention, and against all of 
 them for the costs, Code, sections 2709-10; 67 Ala. 197. Immediately 
 following this verdict, with a comma between, appears what purports 
 to be a judgment in the cause, based on the verdict, namely, "And 
 judgment is rendered against the defendants, Samuel Mace and 
 Henry Edwards, for the land sued for, together with all the costs 
 in this behalf, for which execution may issue." 
 
 A judgment shall be complete and certain in Itself, and must 
 appear to be the act, the adjudication of the court, and not a mem- 
 orandum or certified result. Speed v. Cocke, 57 Ala. 209. Among 
 various definitions of a judgment in the books, not differing in 
 legal effect from each other, we have the one that it is "the final 
 
 159 Ky. 244, 166 S. W. 998 (1914). But intervening equities will be protected. 
 Leonard v. Broughton, 120 Ind. 536, 22 N. E. 731, 16 Am. St. 347 (1889). 
 
 It is error to enter final judgment before all the issues are disposed of. 
 Meylin v. Woodford, i Blackf. (Ind.) 286 (1823) ; Pn rii v Hnrdpn , 9 Spr g- 
 &R^££aL). 2.^ (1822) : Dow v. Rattle, 12 111. 373 ( i85T)T Williams v. Perkins, 
 21 Ark. 18 (i860) ; Gage v. Allen, 84 Wis. 323, 54 N. W. 627 (1893) ; Stone 
 V. Perkins, 217 Mo. 586, 117 S. W. 717 (1908); Gross v. Bennington, 52 
 Wash. 417, 100 Pac. 846 (1909) ; Montgomery v. Gahagan, 246 Mo. 310, 151 
 S. W. 453 (1912). See also N. Y. Code Civ. Proc, §§ 1221, 1225.
 
 c^ftf). JUDGMENT 
 
 consideration and dotcrniinalion of a court of competent jurisdic- 
 tion upon the matters submilltcd to it." i iM'ocnian on judgments, 
 section 2 ; ]r/iihi'cll v. Rwory, 3 Mich. 84, 59 Am. Dec. 220. The lan- 
 j:^uaj;e of a judgincnt is, "It is considered by the court that the plain 
 tilT iiavc and recover, or that the defendant go without day."^" If ever 
 what purports to be a judgment falls short of being a finding, an ad- 
 judication of the court, com])letc and certain, but is in substance a 
 mere memorandum of the clerk which declares, as here, no more 
 than that a judgment was rendered, without setting out what the 
 nidgiliertt'wilt;, it can not be sustained as the final consideration and 
 dett^rttri^Mlbft'of the court. Dank v. Godhold, 3 Stew. (Ala.) 240; 
 Hmdhi. 'ri>W/, 20 Ala. 298. 
 
 Y«l Th^^Ii'^iihere absolutely nothing in the shape of a judgment 
 against ^thfe?' defendant, Martha Bell, for anytliing; and as for the 
 otlier defendants, there is simply a declaration that judgment is 
 rendered against tliem for the land and costs, but no judgment is 
 in fact rendered. This entry is lacking in form and material aver- 
 ments to constitute it a judgment, and to support it as such would 
 be to sanction an uncertainty and looseness in the record and pre- 
 servation of solemn and important judicial ascertainments, such as 
 would be pernicious. 
 
 Our conclusion is, there is no such judgment here as will support 
 an appeal, and it is therefore dismissed. 
 
 Appeal dismissed.^^ 
 
 ^"Bakcr v. State, 3 Ark. 491 (1840); Jasper Mercantile Co. v. O'Rear, 
 112 Ala. 247, 20 So. 583 (1895) ; Wilkinson v. Olin, 136 111. App. 527 (1907) ; 
 Williams v. Connors, 149 111. App. 29 (1909). In modern practice the formal 
 lansniage of the judgment is not regarded as material, provided that it is 
 clearly indicated that the subject in controversy has been adjudicated. Todd 
 v. Potter, I Dav (Conn.) 238 (1804) ; Whitakcr v. Bramson, 2 Paine (U. S.) 
 209, Fed. Cas. No. 17526 (1835) ; Needham v. Gillaspy, 49 Ind. 245 (1874) ; 
 Ware v. Pennington, 15 Ark. 226 (1854); Haminan v. Lewis, 34 Tex. 474 
 (1870) ; Alton v. Hcidrick, 248 111. 76, 93 N. E. 386 (1910) ; Tisdale v. Davis, 
 182 111. App. 31 (1913)- 
 
 ^Conover v. Conover, 17 N. J. L. 187 (1839); Davidson v. Murphy, 13 
 Conn. 213 (1839) ; Ferguson v. Sta ver, 40 Pa . St. 2IX-I1861) ; Bevington v. 
 Buck, 18 Ind. 414 (1862) ; Wilbur v. Abbot, 58 N. H. 272 (1878) ; Simmons 
 v. Craig, 137 N. Y. 550, 33 N. E. 76 (1893) ; Carter v. Elmore, 119 N. Car. 
 296, 26 S. E. 35 (1896); Fitzsimmons v. Munch, 74 111. App. 259 (1897); 
 Hall v. Beston, 13 App. Div. 116, 43 N. Y. S. 304 (1897); Birdsell Mfg. 
 Co. V. Independent Fire, &c., Co., 87 111. App. 443 (1899); Hoodless v. 
 Jcrnigan, 46 Fla. 213, 35 So. 636 (1903); Good v. Che.'ster, 65 W. 
 Va. 13, 63 S. E. 615 (1909); Folcarclli v. Ward, 132 App. Div. 316, 116 
 N. Y. S. 1093 (1909) ; Levert v. Bcrthclot, 127 La. 1004, 54 So. 329 (1910). 
 In ParkjLMMl ines, 147 P a. St. 407. 2.^ Atl. 7 6q (1892), an action of replevin, 
 the verdict foimd rent due the defendant and goods of a certain value 
 liable for the rent. Subsequently this entry was made: "Feb. 2, 1891. Jury 
 fee paid (by deft.) eo die judgment." It was held that the record would 
 not support an execution. Sterrett, J., said: "No court in this country, 
 or elsewhere, has gone to a greater length than the courts of this state in 
 sanctioning extreme brevity in the entry and record of judgments; but when 
 we are asked to sustain a'so-called judgment, which is silent as to the sum 
 for which, and the person or persons against whom it was intended to be 
 entered, it is time to draw the line." Compare Helyete v. Rapp, 7 Serg. & R. 
 (Pa.) 306 (1821) ; Sellers v. Burk, 47 Pa. St. 344 (IgSJTT
 
 SNOW V. WEST gOJ 
 
 SNOW z;. WEST Juob -lo x^nfijiaail 
 
 bfuofI8 .inam^bui 
 
 Supreme Court of Utah, i^it, '^"^ ^°°/'"!f "" 
 37 fy-^a/t 528. •" Xlfswf w ebiow lo 
 
 Action by A. E. Snow against E. M. Wesl^^^'^^iilfr^^ji^Rl 
 Brothers, as assignee, was substituted as plaintifff^'^ ^*^ ^'•^'^iz Jaol stf 
 
 The court entered judgment allowing the d^ftritd^fft ^^Se^dff 
 judgments. Brothers appeals.^- 1) {'fro i)-io:i3T alorlv/ 
 
 Frick, J.: The first assignment of error t6' be liotit6d-?^'^lMt 
 the court erred in permitting the judgment whf (:'h \yi^^ ^ntet^U ^bf- 
 "the sum of 242.98" to be set off, for the reasoii'iriWtH^Mffi^fil 
 not a judgment for an amount certain and is tfiefyfor^'''v'3{^''^Trii 
 case of Carpenter v. Sherfy, 71 111. 427, and Avery'^."BW&ock, 
 
 35 111. 175, cited by appellant in support of his contention, seem to 
 hold as contended for.^^ We do not think, however, that those cases 
 are based on sound legal principles. No doubt judgments should 
 be specific and certain. Judgments should, hqwever, be. read, con- 
 strued and applied as other writings are, and -^Ffii'^the light of 
 the pleadings and the whole record they are certain, they should 
 be enforced. This, we think, is the doctrine announced by the 
 better reasoned cases, and is supported by the^ 4£xt .writers. In 
 referring to this subject in i Black on Judgmenis,^ section Fie, where 
 the author to some extent reviews the cases, .le 3ays:''!'^7\ft^OT^cl^ 
 or ambiguous designation of the parties, of Ihe'sutfect-MkfPef 'M- 
 volved, may be construed, as we have seen,"with reference to the 
 other parts of the record. And if the pleadings, or the verdict, show 
 the actual amount of the recovery, without any doubt or room 
 for mistake, it would seem that the judgment should not be con- 
 sidered invalid, at least as between the parties, for its failure to 
 specify the sum awarded with precision." The foregoing text is 
 supported by the cases of Carr v. Anderson, 24 Miss. 188, and Giits- 
 willer V. Crowe, 32 Minn. 70, in which the facts were similar to those 
 in the case at bar." See, also. Freeman on Judgments, section 48. 
 Any person of ordinary intelligence who should inspect the entry 
 
 ^"Part of the opinion of the court is omitted. 
 
 ^^Accord: Hopper v. Lucas, 86 Ind. 43 (1882) ; Peter v. Hill, 13 111. App. 
 
 36 (1883) ; Boyne v. Vandalia R. Co., 128 111. App. 191 (1906), and, in judg- 
 ments for taxes. Laurence v. Fast, 20 111. 338, 71 Am. Dec. 274 (1858); 
 Lane v. Bommclman, 21 111. 143 (1859) ; Bdily v. Doolittle, 24 111. 577 (i860) ; 
 Woods V. Freeman, i Wall. (U. S.) 398, 17 L. ed. 543 (1863) ; People v. San 
 Francisco Savings Union, 31 Cal. 132 (1866) ; Randolph v. Metcalf, 6 Coldvv. 
 (Tenn.) 400 (1869). 
 
 "Accord: Therme v. Bethenoid, 106 la. 697, 77 N. W. 497 (1898) ; Gutc- 
 willer V. Crozve, 32 Minn. 70, 19 N. W. 344 (1884), distinguishes Tidd v. 
 Rines, 26 Minn. 201, 2 N. W. 497 (1879), on the ground that in the earlier 
 case the figures were not separated by a line or decimal mark. See also 
 Collins V. Welch, 38 Minn. 62, 35 N. W. 566 (1887) ; Dyke v. Bank, 90 Cal. 
 397, 27 Pac. 304 (1891). The omission of the word dollars in a verdict is not 
 such a defect as to prevent the rendering of judgment according to the mani- 
 fest intent of the jury. Hopkins v. Orr, 124 U. S. 510, 31 L. ed. 523 (1887).
 
 502 jrnr.Mi-.NT 
 
 oi the imli^^incnt in (iucsti(in woiiUl, wo tiiinlc, n^t liavc the shghtcst 
 hesitanc}' or doubt with respect to arrivinij at the amount of the 
 judg^iicnt. Should a writing or record which would be read and 
 imderstood by all ordinary men in but one sense, nevertheless, be 
 held to be uncertain by a court of justice because certain signs, marks 
 or words usually used are wanting? It would seem that any writing 
 or record that is certain to all ordinary minds should likewise be 
 sufficiently certain in a court of justice. Common sense should not 
 be lost sight of entirely merely because a court acts in conformity 
 to certain rules of evidence. We are satisfied that, in view of the 
 whole record and the manner in which the figures were written and 
 pointed off, the amount of the judgment in question was no more 
 uncertain than if the dollar sign or mark had in fact been used, or 
 the words "dollars" and "cents" had been written out in full after 
 the figures. This assignment must therefore be overruled.^^ 
 Affirmed. 
 
 KKNNON r. GILMER 
 
 Supreme Court of the United States, i 
 
 131 U. S. 22. 
 
 Action bv Kennon to recover damages for personal injuries 
 sustained while a passenger in a stage coach operated by Gilmer 
 and others between the towns of Deer Lodge and Helena in the 
 Territory of Montana. At the trial the jury returned a verdict for 
 the plaintiff for $20,000 general damages and $750 medical ex- 
 penses. Judgment having been entered on the verdict, the defend- 
 ants appealed to the Supreme Court of the Territory, which ordered 
 
 "There are cases which hold that a judgment expressed in figures and 
 not in words is defective. Cole v. Petty, 2 N. J. L. 60 (1806) ; Walton v. 
 Vanderhoof, 2 N. J. L. 73 (1806); Ncal v. Collins, 2 N. J. L. 85 (1806) ; 
 Under v. Monroe, 33 111. 388 (186.4); Smith v. Miller, 8 N. J. L. 175, 14 
 Am. Dec. 418 (1825); Lloyd v. Hancc, 16 N. J. L. 127 (1837). Contra: 
 Tankersley v. Silhnrn, Minor (Ala.) 185 (1824); Moore v. IVhitcomb, 
 48 Mo. 543 (1871); Daz'is v. McCray, 100 Ala. 545, 13 So. 665 (1892), 
 and in East Orange v. Richardson, 71 N. J. L. 458, 50 Atl. 897 (1904). it is 
 held that the entry of judgment in figures is a mere defect in form, not preju- 
 dicial to the defendant, and therefore furnishing no ground for reversal. See 
 also Koppcrl v. Nagy, 37 111. App. 23 (1890). 
 
 If a judgment purports to be final and is given upon a money dernand, 
 the amount of the recovery must be stated with certainty and precision. 
 Dickinson v. Rahn, 98 III. App. 243 (1901) ; Jones v. Acre, Minor, (Ala.) 5 
 (1820) ; Berry v. Anderson, 2 How. (Miss.) 649 (1837) Brozvn v. Horless, 22 
 Tex. 645 (1859) ; Noyes v. Ncwmarch, 83 Mass. 51 (1861) ; Battell v. Lowery, 
 46 Iowa 49 (1877); Bickford v. Flannery, 70 Maine 106 (1879); People v. 
 Pirfenhrinck, 96 111. 68 (1879.) •Park ^Holmes. 1 42 Pa. 407. 23 Atl. 769 (1892) ; 
 Etheridge v. Middleton, i Marv. (Del.) 139, 40 Atl. 714 (1893) ; Moore v. 
 Evans, 24 Idaho 153, 132 Pac. 971 (1913). But in some cases the judgment 
 has been supported bv reference to the pleadings and verdict. Dinsmore v. 
 Austin, ^i'mor, (Ala.) 89 (1822) ; Lewis v. Smith. 2 Serg. & R.(Pa.) 142 (1815) ; 
 Sellers V. Burk, 47 Fa. St^.AM-Ll^5 '■ Ulshafer v. Sieivarl^JlJ'a. St. 170 
 Ci^^2T^,'L:adnicr v. Ladnier, 64 Miss. 368, i bo. 492 (1886).
 
 KENNON V. GILMER 503 
 
 the judgment to be reduced to the sum of $10,750 and affirmed it 
 for that amount. Writs of error to the Supreme Court of the United 
 States were sued out by both parties. ^^ 
 
 Gray, J. : By the action of the court in entering an absolute 
 judgment for the lesser sum, instead of ordering that a judgment 
 for that sum should be entered if the plaintiff elected to remit the 
 rest of tlie damages, and that if he did not so remit there should 
 be a new trial of the whole case, each party was prejudiced; and 
 either, therefore, is entitled to have the judgment reversed by 
 writ of error. The plaintiff was prejudiced, because he was de- 
 prived of the election to take a new trial upon the whole case. The 
 defendant was prejudiced because if the judgment for the lesser 
 sum had been conditional upon a remittitur by the plaintiff, the 
 defendants, if the plaintiff had not remitted, would have had a new 
 trial generally ; and if the plaintiff had filed a remittitur, and thereby 
 consented to the judgment, he could not have sued out a writ of 
 error, and the defendants would have been protected from the 
 possibility of being obliged in any event to pay the larger sum. 
 Whereas upon the absolute judgment entered by the court, without 
 any election or consent of the plaintiff, the plaintiff had the right 
 to sue out a writ of error ; and he availed himself of that right, 
 and docketed his writ of error in this court before the defendants 
 docketed their writ of error. The defendants were thus put in the 
 position of being obliged to contest the plaintiff's writ of error, in 
 order to defend themselves against being held liable for the larger 
 sum, as the plaintiff contended that they must be upon this record. 
 
 The erroneous judgment of the Supreme Court of the Territory 
 being reversed, the case will stand as if no such judgment had been 
 entered; and that court will be at liberty, in disposing of the 
 motion for a new trial according to its view of the evidence, either 
 to deny it, to grant a new trial generally, or to order judgment for 
 a less sum than the amount of the verdict, conditional upon a re- 
 mittitur by the plaintiff.^^ 
 
 Judgment reversed. 
 
 "The statement of facts is abridged and part of the opinion omitted. The 
 decision reversed is reported in 5 Mont. 257. 
 
 ^'The judgment must conform to and follow the pleadings and verdict. 
 Grosvenorv. Danforth, 16 Mass. 74 (1819) ; Baltsell v. Hickman, 4 Litt. (Ky.) 
 265 (1823) ; Hawk V. Anderson, 9 N. J. L. 319 (1827) ; J)enn ison v. Leech, 
 Q^Pa, St. 164 (18^8} ; Bennett v. Bidterzvorth, 11 How. (U. S.) 669, 13^-. 
 ed. 859 (1850) ; Wright v. Delafield, 25 N. Y. 266 (1862) ; Dawson v. Shirk, 
 102 Ind. 184, I N. E. 292 (1885) ; Fam Etten v. Rosters, 48 Nebr. 152, 66 
 N. W. 1106 (1896); Shuhnan v. Maison, 25 Misc. 765, 54 N. Y. S. 1009 
 (1898) ; Gentry v. United States, loi Fed. 51 (1900) ; Lczvis v. Story, 147 
 111. App. 221 (1909) ; Enshew v. Rcise, 117 N. Y. S. 906 (1909) ; Weeks v. 
 New York, &c., R. Co., 145 App. Div. 535, 129 N. Y. S. 888 (1911) ; Spears 
 V. Wise, 187 Ala. 346, 65 So. 786 (1914). If a verdict is found for a sum 
 certain, the court can not give judgment for a greater sum. Reid v. Dunklin, 
 5 Ala. 20s (1843) ; Buck v. Little, 24 Aliss. 463 (1852) ; Mitchell v. Geisendorff, 
 44 Ind. 358 (1873); Alpers v. Schammel, 75 Cal. 590, 17 Pac. 708 (1888); 
 Volker v. Bank, 26 Nebr. 602, 42 N. W. 732 (1889) ; Halberg v. Brosscau, 
 64 111. App. 520 (1896); Hanmneller v. Ackerman, 130 Mo. App. 387, 109 
 S. W. 857 (1908); or a less sum, Heidenheimer v. Schlett, 63 Tex. 394 
 (1885); Goggan v. Evans, 12 Tex. Civ. App. 256, 33 S. W. 891 (1896);
 
 304 junr.^rKNT 
 
 WTT.RF.R 1: WTDNER 
 Supreme Corur ov New York, 1828 
 
 I I Tend. (X. y.) 56. 
 
 Error from the Monroe Coninion Pleas. Daniel K. Widner 
 brought an action of slander against Wilber in the Monroe Com- 
 mon rieas. In declaring, the plaintiff in the commencement of the 
 declaration, is named David K. Widner, and his name is not again 
 mentioned. The defendant appeared and pleaded, issue was joined 
 and the cause brought to trial. On the trial, the words for the 
 speaking of which the action was brought, were proved to have 
 been spoken of and concerning Daniel K. Widner. The capias was 
 produced, which was in the name of Daniel K. Widner, and the 
 pleas of tlie defendant were shown to be entitled Wilber ads. Daniel 
 K. Widner. The attorney for the plaintiff testified that Daniel K. 
 Widner was his client, and that the suit was brought for him. In 
 the record, the name of Daniel K. Widner, as plaintiff, does not 
 occur, except in the warrant for attorney, until after the finding 
 of the verdict, when it is found in a continuance of curia odvisare 
 viilt, as that of the plaintiff in the cause; then follows a judgnient 
 on demurrer, and a judgment on the verdict in favor of the said 
 
 if the verdict is excessive, the remedy is a new trial, unless a remittitur is 
 
 entered; Pickwood v. JVright, I H. Bl. 64:2 (1791) ; Atchison T., &c., R. Co. 
 
 V. Cogsix'ell, 23 Okla. 181, 99 Pac. 923 (1909) ; Walker v. Fuller, 29 Ark. 448 
 
 (1874) ; Blackivcll v. Landrcth, 90 Va. 748, 19 S. E. 791 (1894); Excelsior 
 
 Electric Co. v. Sivcct, 59 N. J. L. 441, 31 Atl. 721 (1896) ; Dickinson v. Rahn, 
 
 98 111. App. 245 (1901). In England, in an action of tort, while a new trial 
 
 may be granted for an excessive verdict, the court has no jurisdiction, 
 
 without the defendant's consent, to make an order that imless the plaintiff 
 
 consents to reduce the damages there shall be a new trial. Watt v. Watt, 
 
 L. R. (1905), A. C. 115, overruling Belt v. Laii'es, L. R. (1884), 12 Q. B. Div. 
 
 356. See also Rules of Supreme Court, order xl, rule 10. la Penasxlvanja^the 
 
 I Supreme Court, under the act of May 20, 1891, P. L. lof, § 2, P. & L. I5ig. 
 
 (2d ed.) 322, has power to reduce a judgment on a verdict to such sum as it 
 
 vmav deem proper and just; but the power is exceptional and sparingly exer- 
 
 /cised. Smith v^JUm^sJ'jib, Co^^iyB- Pa. _ St. 481^^16 Ajtl. 296, 35 L. R. A. 819 
 
 (1896) ; B cglcy v. Railroad Co.j 201^ Pa. 84, 50 Atl. 1009 (1902) ; Slcvcnson 
 
 Iv. Ehcri -afe CoaVCo., 201 Pa. ii2,.-f;o Atl. 818, 88 Am. St. 805 (1902) ; Dincm 
 
 \'frSuprcme Council of Catholic MiiL Ben. Assn., 213 Pa. 489, 62 Atl. 1067 
 
 C1906) ; Murtland v. English, 214 Pa. 325, 63 Atl. 882, 112 Am. St. 747 (1906). 
 
 In CoffTnan v. Srozi.'n, 7 Colo. 147, 2 Pac. 905 (f883), the defendant's 
 
 answer admitted an indebtedness to plaintiff and tendered $31.40. The jury 
 
 rendered a verdict for $20.40, upon which judgment was entered. Held, that 
 
 defendant was bound by his tender and under the pleadings, the plaintiff was 
 
 entitled to $31.40 in any event; therefore judgment was reversed and the 
 
 cause remanded with directions to the court below to render judgment for 
 
 that sum. Accord: Swectland v. Tuthill, 54 111. 215 (1870). 
 
 In an action upon a statutory right, the judgment must conform to the 
 statute. Thus where a statute, giving a right of action for wrongful injury 
 to the person of a child both in favor of the parent and the child, provides 
 that separate verdicts and judgments shall be rendered, a judgment for the 
 sum of the two separate verdicts is erroneous. American Steel, &c., Co. v. 
 Tynan, 183 Fed. 949 (191 1 Pa. Act}.
 
 V.'ILLER V. WIDENER 
 
 505 
 
 Daniel K. Widner. From the bill of exceptions attached to the rec- 
 ord, it appears various exceptions were taken to opinions pronounced 
 by the common pleas in the progress of the trial ; but as the questions 
 arising upon these exceptions are not particularly passed upon by 
 this court, in the opinion pronounced, it is deemed necessary to 
 state them. 
 
 Sutherland, J. : The objections arising on the face of the 
 record appears to be unanswerable. The declaration throughout is 
 in the name of David K. Widner, and the judgment is in favor of 
 Daniel K. Widner. It is an action of slander, and, on tlie face of 
 the record, Daniel has recovered a judgment against the defendants 
 for a slander uttered against David. No doubt it was a mistake, 
 and enough appears in the bill of exceptions to authorize the amend- 
 ment,^^ on a proper application for that purpose; but the bill of 
 exceptions can not be used in aid of the record, and there is nothing 
 in the record to amend by. The case is not within the sixth section 
 of the statute of jeofails (i R. L. 120), because the true name is not 
 rightly alleged in any part of the record. 
 
 The decisions of the court below, I am inclined to think, were 
 correct throughout, and that, upon the bill of exceptions, the judg- 
 ment ought to be affirmed ; but for the error in the record it must be 
 reversed. 
 
 Judgment reversed, venire de novo}^ 
 
 ^^M^olf V. Stepney, Cro. EHz. 864 (1601) ; Birfon v. Mandel, Cro. Jac. 67 
 (1605) ; Marsh v. Berry, 7 Cow. (N. Y.) 344 (1827) ; Prqwattqin v, McTier,J. 
 Phila. 183 (i8=;o) : Shelly v. Dobbins, 31 La. Ann. 530 (1879)'; Fay v. Stuben- 
 rauch, 141 Cal. 573, 75 Pac. 174 (1904). Compare Albers v. Whitney, i Story 
 (U. S.) 310, Fed. Cas. No. 137 (1840). 
 
 ^^Accord: Scandovcr v. Warnc, 2 Camp. 270 (1809) ; Sweazy v. Nettles, 
 2 Mo. 6 (1827) ; Ming v. Green, 6 Rand. (Va.) 551 (1828) ; Reeve v. Lee, 6 
 \\'is. 80 (1858) ; Ford v. Doyle, 2,7 Cal. 346 (1869). Compare Cleveland R. 
 Co. v. Siirrclls, 115 III. App. 615 (1869). To support a judgment the names 
 of the parties must appear of record with sufficient certainty to permit execu- 
 tion to be issued. Joseph v. Joseph, 5 Ala. 280 (1843) ; Captain, &c., v. 
 Paschal, g Heisk. (Tenn.) 203 (1872) ; Moody v. Detttch, 85 Mo. 237 (1884) ; 
 Park V . Holmes. \a7 Pa. St. 497, 23 At l. ^69 (1892) ; Fuller Watchmans Elec- 
 trical Director Co. vrtouis, 50 111. App. 428 (1893) ; Hitch v. Gray, i Marv. 
 (Del.) 400, 41 Atl. 91 (1895). But a judgment is operative for or against 
 all who are actual parties, although their names be given incorrectly, if by 
 reference to other parts of the record, the pleadings and process, the true 
 parties can be correctly ascertained. Wilson v. Nance, 11 Humph. (Tenn.) 
 189 (1850); Vangeazel v. Hillyard, I Houst. (Del.) 515 (1858); Laftin v. 
 White, 38 111. 340 (1865) ; McCartey v. Kittrell, 55 Miss. 253 (1877) ; Preston 
 V. Wright, 60 Iowa 351, 14 N. W. 352 (1882) ; ^Hendry v. Crandall, 131 Ind. 
 42, 30 N. E. 789 (1891) ; Roach v. Blakey, 89 Va. 767, 17 S. E. 228 (1893) ; 
 Terry v. French, 5 Tex. Civ. App. 120, 22 S. \V. loii (1893) ; First Nat. Bk. 
 V. Garland, 109 Mich. 515 (1896); Ex parte Howard Harbinson Co., iig 
 Ala. 484, 24 So. 516 (1898); Chicago Clock Co. v. Tobin, 123 Cal. 377, 55 
 Pac. 1007 (1899). As to fictitious names, compare Ford v. Doyle, 37 Cal. 346 
 (1869) ; Bernstein v. Schoenfeld, 37 Misc. 610, 76 N. Y. S. 14 (1902), with 
 Campbell v. Adams, 50 Cal. 203 (1875) ; Alameda Co. v. Crocker, 125 Cal. loi, 
 57 Pac. 766 (1899).
 
 5o6 JUDGMENT 
 
 ROOT r. T<l'JJ.OWES 
 
 Supreme Judicial Court of Massachusetts, 1850 
 60 Mass. 29 
 
 This was an action of debt on judgment, brought against William 
 B. F'cllowes and Newbury Day. The declaration averred that the 
 ]^laintiffs, at the court of common ])lcas, held at Greenfield, on the 
 second Monday of November, 1846, "recovered judgment against 
 the said Fellowes and Day, by the name of William B. Fellowes and 
 Day," and that said judgment was unsatisfied. The defend- 
 ant Fellowes was defaulted ; but Day pleaded the general issue. 
 
 At the trial in the court of common pleas, before Mellen, J., the 
 plaintiffs offered to prove "that Newbury Day, one of these defend- 
 ants, was the Day referred to in said judgment." His counsel ob- 
 jected to the admission of parol evidence to prove that fact; but the 
 objection was overruled, and the evidence admitted. A verdict was 
 returned against Day, and he alleged exceptions to the admission of 
 the evidence. 
 
 AIetcalf, J. : The omission of Day's Christian name in the writ 
 on which the judgment now in suit was recovered was a matter 
 which he might have pleaded in abatement. But as he suffered judg- 
 ment to go against him without objection to the misnomer, an execu- 
 tion on that judgment, issued against him by the same defective 
 name, would have been valid, and might have been legally enforced. 
 Swith V. Bou'ker, i ]\'Iass. 76. In this suit on the judgment, however, 
 if the writ had omitted his Christian name, he might have pleaded 
 in abatement, as he might have done in the original action. It was 
 proper, therefore, for the plaintiff to insert his full name in the writ, 
 and to aver, as they have done, that they recovered judgment against 
 him by the name of Day. So are the precedents. 2 Chit. PI. (6th Am. 
 ed.) 484. 
 
 Ho\.- then are the plaintiffs to prove this allegation in their writ, 
 unless by parol evidence? The counsel for Day has not informed us, 
 and we do not know. 
 
 Exceptions overruled.^* 
 
 =^°Accord: Newcomh v. Peck, 17 Vt. 302, 44 Am. Dec. 340 (1845) ; Hays 
 V. Varborough, 21 Tex. 487 (1858); Goodgion v. Gilbreath, 32 S. Car. 388, 
 II S. E. 207 (1889). Compare Gardner v. Kraft, 52 How. Pr. (N. Y.) 499 
 
 (1877). 
 
 One sued by the wrong name who appears and fails to plead the misnomer 
 in abatement is concluded bv the judgment. Y. B. 33 Hen. VI, 7, 19; Craw- 
 ford V. Satchwell, 2 Str. 1218 (1745) ; Smith v. Patten, 6 Taunt. 115 (1815) ; 
 Lafaveite Ins. Co. v. French, 59 U. S. 404, I5 L. ed. 451 (1855) ; First Nat. 
 Bk. V. .loggers, 31 Md. 381, 100 Am. Dec. 53 (1869) ; Bridges v. Layman, 31 
 Ind. 384 C1869) ; Fond v. F.nnis, 69 111. 341 (1873) ; Louisville, &c., R. Co. v. 
 Hall, 12 Bush. (Ky.) 131 (1876); Shay v. McNamara, 54 Cal. 169 (1880); 
 L'Etiqle V. Florida C. R. Co., 21 Fla. 353 (1885') ; Peterson v. Little, 74 Iowa 
 223, 37 X. W. 169 (1887) ; Kingen v. Stroh, 136 Ind. 610, 36 N. E. 519 (1893) ; 
 Corrigan v. Sclnnidt, 126 Mo. 304, 28 S. W. 874 (1804) ; Althause v. Huns- 
 berger, 6 Pa. Super. Ct. 160 (1897). So also where plaintiff is misnamed.
 
 OAKLEY V. PEGLER 507 
 
 O. R. OAKLEY v. G. H. PEGLER 
 
 Supreme Court of Nebraska, 1890 
 
 30 Nehr. 628. 
 
 Errar to the District Court for Lancaster County. 
 
 The action was brought on a judgment recovered in the state of 
 New York by Pegler against O. R. Oakley. The answer of the de- 
 fendant averred "that his true name is Oscar R. Oakley and not 
 O. R. Oakley, as set forth in said action, petition and proceedings." 
 
 On the trial the defendant testified as follows on cross-examina- 
 tion: 
 
 O. What do you say your name is ? 
 
 A. Oscar Rodman Oakley is my name. 
 
 Q. By what name were you known in the business world ? 
 
 A. Well, a business man often uses his initials, and I very fre- 
 quently do that, of course. 
 
 O. Is it not a fact you use your initials almost entirely? 
 
 A. I use my initials in signing checks. I don't know as I do en- 
 tirely, btit I do sometimes. 
 
 Q. Is it not a fact that 3'our business signature to your checks 
 is in the form of O. R. Oakley ? 
 
 A. They are. 
 
 Q. I will ask you if it is not a fact that the signature you leave 
 at bank, prepared for that purpose — the bank at which you do busi- 
 ness — at the First National Bank, is not O. R. Oakley? 
 
 A. Yes, all business men use their initials.-^ 
 
 Maxwell, J. : The principal error relied upon is that the plain- 
 tiff in error was sued by the initial letters of his Christian name and 
 not' by his surname. It will be seen from his own testimony that his 
 habit has been, and is when signing checks, doing business at banks 
 and other places, to use the initial letters of his Christian name. At 
 common law a declaration describing a party by the initial of his 
 Christian name is bad on special demurrer (Turner v. Fitt, 3 M. G. 
 & S. 701 ; Bliss on Code Pleading, section 146a) r" It should be made 
 to appear, however, that tlie letter used is but an initial and not the 
 
 McGaughey v. Woods, 106 Ind. 380, 7 N. E. 7 (1885) ; and see VIner's Abr. 
 Misnomer; Bacon's Abr. Misnomer. As to judgments by default, compare 
 Parry v. JVoodson, 33 Mo. 347, 84 Am. Dec. 51 (1863) ; Edwards v. Warner, 
 III 111. App. 32 (1903) ; McGaughev v. M'oods, supra, with Cole v. Hindson, 
 6 T. R. 234 (1795); Farnham v. Hildrclh, 32 Barb. (N. Y.) 277 (i860); 
 Schoellkopfv. Ohmeis, ii Misc. 253, 2>^ N. Y. S. 736 (1895). 
 
 ^*The statement of facts is abridged from the opinion of the court. The 
 arguments of counsel and part of the opinion are omitted. 
 
 "Jones V. Macqidllin, 5 D. & E. 195 (1793) ; Nash v. Collier, 5 Dowl. & L. 
 341 (1847) ; Miller v. Hay, 3 Wei., H. & G. 14 (1848) ; Wilson v. Shannon, 6 
 Ark. 196 (1845) ; Knox V. Stark s, 4 Minn. 20 (i860) ; Elherson v. Richards, 
 42 N. J. L. 69 (1880); Begos v. Wellman, 82 Ala. 391, 2 So. 877 (1886); 
 Monroe Cattle Co. v. Becker, 147 U. S. 47, 37 L. ed. 72 (1892).
 
 5oS JUDGMENT 
 
 true name (Trcv.-Jv v. Jari'is, 27 Conn. 42). Whether an apparently 
 initial letter will be treated as a name must depentl ujion the manner 
 in whieh the ciuestion is raised.-^ 
 
 In the ahsenec of a motion to the contrary, or a pleading calling 
 attention to the fact that it is not the name of the party, the court 
 will be warranted in treating it as his name. If the defendant objects 
 on the ground of misnomer, he must give his true name. A judgment 
 against a i>arty sued by the initials of his Christian name is not void. 
 At the most it is voidable for error of the court in the proceedings. 
 Where, before judgment, the attention of the trial court is called to 
 the fact tliat the defendant has been sued by the initials of his Chris- 
 tian name, the court may permit an amendment instantcr by insert- 
 ing the full Christian name.-* If no objection is made on that ground, 
 tlie defendant will be concluded by the judgment. 
 
 In the case at bar the plaintiff in error did business as O. R. 
 Oakley, and although his Christian name is Oscar R. Oakley, the 
 name by which he does business in signing checks and at the banks 
 and at other places is O. R. Oakley. This may be called his business 
 name, and a judgment recovered against him by that name can not 
 be attacked collaterally. There is no error in the record and the 
 judgment is affirmed.-^ 
 
 ^Kinticrslcv v. Knott, 7 C. B. 980 (1849) ; Stcver v. Brown, 119 Mich. 
 196, 77 N. W. 704 (1899) ; Gottlieb v. Alton Grain Co., 87 App. Div. 380, 84 
 N. Y. S. 413 (1903")- 
 
 '*DavcHport V. Kirkland, 156 111. 169, 40 N. E. 304 (1895) ; Bnrdeshaw v. 
 Co-mcr, 108 Ala. 617, 18 So. 556 (1895); Fay v. Stubenrauch, 141 Cal. 573, 
 75 Pac. 174 (1904); Jllnh^ rnhnrrp Co. V Pn.<tJnx.^.fy, 3T P^, Siiper^ Ct. 6o2 
 (1906). 
 
 ^Linch V. Hooke, I Salk. 7 (1705) ; Harrison v. Harrison, 19 Ala. 499 
 (1851) ; Bridges v. Lavman, 31 Ind. 384 (1869) ; Jones' Est ate. 27 Pa . St. 336 
 (1856) ; Fezi'lass v. Abbott, 28 Mich. 270 (1873) -rHicWv. Riley, 83 Ga. 332, 
 9 S. E. 771 (1889) ; Perkins v. McDowell, 3 Wyo. 328, 23 Pac. 71 (1890) ; 
 Grant v. Birdsall, 2 N. Y. Civ. Proc. 422, 48 N. Y. Super. Ct. 427 (1882) ; 
 Hinkle v. Collins, 113 Mich. 105, 71 N. W. 481 (1897) ; Vicborn v. Pollock, 
 133 Mich. 524, 95 N. W. 576 (1903). Contra: I'inccnt V. Means, 184 Mo. 327, 
 82 S. W. 96 (1904). Where a defendant is known as well by one name as 
 another he may be sued by either, and it is immaterial by which name he 
 was known to the plaintiflF. Y. B. 44 Edw. Ill, 16; P.agleston v. Nathan A. Son, 
 5 Rob. (N. Y.) 640 (1866) ; Clark v. Clark, 19 Kans. 522 (1878) ; Isaacs v. 
 Mints, II N. Y. S. 423, 33 N. Y. St. 423 (1890), and see Linton v. First Natl. 
 Bk., 10 Fed. 894 (1882) ; Rich v. Mayer, 7 N. Y. S. 69, 26 N. Y. St. 107 
 (1889).
 
 KERBY V. JENKINS ' 509 
 
 SECTION 2. JUDGMENT BY CONFESSION 
 
 KERBY V. JENKINS 
 
 Court of Exchequer, 1832 
 2 Tyrwhitt 499. 
 
 A rule for setting aside an interlocutory judgment and subse- 
 quent proceedings, for irregularity, was obtained on the defendant's 
 affidavit, that on twenty-fourth January he signed a paper, which 
 was the cognovit-^ on which judgment was entered up, but that he 
 was never served with any process. 
 
 Cause was shown on an affidavit that the defendant, on signing 
 the cognovit, said he knew what a cognovit was, having signed one 
 before, and thanked the plaintiff's attorney for the indulgence ; and 
 that process was sued out an hour before the cognovit was given. 
 
 Per Curiam : It is not necessary that process should be served 
 before a cognovit is given. It is sufficient if it has been sued out 
 
 Rule discharged with costs.^' 
 
 *'See Lilly's Entries, 470; Clift's Entries, 421; Chitty's Forms (1847), 
 308 ; Wentworth on Pleading, 10, 428 ; Tidd's Practice, 559 ; 4 Enc. PI. & Pr. 
 560. At common law where the defendant had no defense to the action, in- 
 stead of proceeding to trial or allowing judgment to be taken by default, he 
 could give the plaintiff a cognovit actionem, usually called a cognovit, or 
 written confession of the action authorizing the plaintiff to sign judgment, 
 frequently on condition that the defendant be allowed time for the payment 
 of the debt or damages, the amount of which in general was first agreed upon. 
 If given after plea pleaded it usually contained an agreement to withdraw 
 the plea, in which case it was termed a cognovit actionem relicta verificatione. 
 Chitty's Practice, 844; Richardson v. Jones, 12 Grat. (Va.) 53 (1855). By con- 
 fessing the action the defendant often obtained terms, such as a stay of exe- 
 cution or, in an action for unliquidated damages avoided the expense of a 
 writ of inquiry'. McClish V. Manning, 3 G. Greene (Iowa) 223 (1851) ; Keep 
 V. Leckie, 8 Rich. L. 164 (S. Car.) (1855) ; Hirschfield v._ Franklin, 6 Cal. 607 
 (1856). In modern English practice no order to enter judgment by consent 
 will be made where the defendant has not appeared or has appeared in per- 
 son, imless the defendant attends before a judge and gives his consent in 
 person, or unless his written consent is attested by a solicitor, except where 
 the defendant is a barrister or solicitor. Rules of Supreme Court, order xli, 
 rule 10; and see the act of 32-33 Vict. (1869), ch. 62, §§ 24-28. 
 
 The words "they can not deny" are sufficiently explicit to authorize the 
 entry of judgment. Lewis v. Barber, 21 111. App. 638 (1886) ; Burton v. Law- 
 rence, 4 Tex. 373 (1849). 
 
 -'Accord: IVebb v. Aspinwall, 7 Taunt. 700 (1817) ; Wade v. Swift, 8 
 Price 513 (1820) ; Morley v. Hall, 2 Dowl. 494 (1834) ; Shanley v. Colwell, 
 6 M. & W. 543 (1840) ; Commercial Bank v. Brondgcest, 5 U. C. Q. B. .325 
 (1847); Laverty v. Patterson, $ U. C. Q. B. 641 (1848). Contra: Keep v. 
 Leckie, 8 Rich. L. (S. Car.) 164 (1855), and see Stein v. Good, 16 III. App. 
 516 (1885); O'Dell V. Reynolds, 70 Fed. 656 (1895). It is essential to the 
 validity of a judgment confessed, pending suit, that the defendant be served 
 with process or that he appear in person or by attorney. Richardson v. 
 Daly, 4 M. & W. 384 (1838) ; F errand v. McClease, i Ind. 87 (1848) ; Craig 
 V. Glass, I Ind. 89 (1848) ; Coonley v. Tracy, 4 Ind. 137 (1853) ; PhiladclphicL 
 V. Toll. 2 W. N. C. (Pa.) 226 (1874) ; Stewart w. }V alters, 38 N. J. L. 274 
 (1876). The judgment must be entered with plaintiff's assent. Thayer v. 
 Finley, 36 111. 262 (1864) ; Mason v. Ward, 80 Vt. 290, 67 Atl. 820 (1907).
 
 5IO JUDGMJiXT 
 
 A. IV IWROUITAR CO., Ll^rlT^.^. v. CHARLES E. DEHAVEN, 
 
 1-:t Al. 
 
 Sltkkme Court of ArrKAi.s of W'fst Virginia, 191 2 
 70 11 : Va. 73S. 
 
 Error to Circuit Court, Berkeley County. 
 
 Action by Arthur B. Farquhar and others, partners as A. B. 
 Farquhar Co., Limited, a£]:ainst Charles E. Dehaven and others. 
 Judgment for plaintiffs, and defendants brlnj^ crror.^^ 
 
 Miller, J. : The judgment below to which this writ of error 
 applies, denied the motion of defendants to quash the execution on 
 a judgment in favor of plaintiffs, entered against them, in vacation, 
 by tlie clerk of the circuit court on September 12, 1910. 
 
 The entire record of the judgment as presented here is as 
 follows : 
 
 "This day came the defendants, by Martin & Seibert, their attor- 
 neys in fact, and say that they can not gainsay the plaintiff's action 
 against them, but that they are justly indebted to the said plaintiffs 
 in the sum of $527.07 with interest thereon from this date and the 
 costs of this action, on account of two certain notes, one dated 
 August 30, 1909, due six months after date, and the other dated 
 August 30, 1909, due twelve months after date. 
 
 "It is therefore considered that the plaintiffs, Arthur B. Far- 
 quhar, W^m. E. Farquhar and Frances Farquhar, general partners, 
 trading and doing business as A. B. Farquhar Co., Limited, do re- 
 cover of and from the said defendants, Charles E. Dehaven and 
 H. L. Dehaven, the sum of five hundred and twenty-seven dollars 
 and seven cents ($527.07), with interest from this date until paid, 
 and their costs in this behalf expended. Teste : L. De W. Gerhart, 
 Clerk Circuit Court of Berkeley County, West Virginia. 
 
 "Memo: Said notes were filed with the said clerk upon the day 
 of the entry of the said order, and are in the words and figures 
 following :" 
 
 The notes referred to, of which one is copied in the records, are 
 judgment notes, in form like those in use in Pennsylvania, bear- 
 ing six per cent, interest, and providing for a ten per cent, attorney's 
 fee in addition to all other necessary expenses of collection after 
 maturity. They also contain waiver of presentment and protest, 
 homestead and exemption rights real and personal, and other rights, 
 and also the following material provision: "And we do hereby em- 
 power and authorize the said A. B. Farquhar Co., Limited, or agent, 
 or any prothonotary or attorney of any court of record to appear 
 for us and in our name to confess judgment against us and in favor 
 of said A. B. Farquhar Co., Limited, for the above named sum with 
 the costs of suit and release of all errors and without stay of execu- 
 tion after the maturity of this note." 
 
 ^Part of the opinion of the court and the dissenting opinion of Robin- 
 son, ]., are omitted.
 
 A. B. FARQUHAR CO., LTD., V. DEHAVEN 5H 
 
 The motion to quash assigned as the only ground therefor that 
 the judgment is void, the clerk being without authority to enter the 
 same upon a judgment note, as was done, without suit and service 
 of process. 
 
 As both sides agree the question presented is one of first impres- 
 sion in this state. We have no statute, as has Pennsylvania and 
 many other states, regulating the subject. In the decision we are 
 called upon to render, we must have recourse to the rules and prin- 
 ciples of the common law, in force here, and to our statute law, 
 applicable, and to such judicial decisions and practices in Virginia, 
 in force at the time of the separation, as are properly binding on us. 
 It is pertinent to remark in this connection, that after nearly fifty 
 years of judicial history in this state no case has been brought here 
 involving this question, strong evidence, we think, that such notes, 
 if at all, have never been in very general use in this commonwealth. 
 And in most states where they are current the use of tliem has grown 
 up under statutes authorizing them, and regulating tlie practice of 
 employing them in commercial transactions. . . . 
 
 The case we have here, on the motion to quash, is one of collat- 
 eral attack, and to sustain the motion and reverse the judgment 
 below, we must hold the judgment void upon its face. Is it so void? 
 As already indicated, the question must be answered practically upon 
 the common law rules and principles. We have no statute in any 
 way governing tlie subject, except section 43, chapter 125, of the 
 Code, providing for a confession by the defendant in vacation in the 
 clerk's office. What then is the common law applicable to the case ? 
 
 In I Black on Judgments, section 50, it is said : "All judgments 
 rendered upon the confession of the defendant may be divided into 
 two classes: i. Those entered in an action regularly commenced by 
 the issuance and service of process. 2. Those entered upon the con- 
 fession of the defendant, or his warrant of attorney, without tlie 
 institution of an action. The former class of judgments are well 
 known to the common law and must be tested and sustained by rules 
 and principles existing independently of statute, while judgments 
 of the latter class derive all their efiicacy from positive law and must 
 conform, in order to be valid, to all the requirements and formalities 
 set up by the legislature." In the same section this writer further 
 says : "Now judgments entered for the plaintiff upon the defend- 
 ant's admission of the facts and law, as the same are known to the 
 common law and exist independently of statutes, are of two varie- 
 ties : First, judgment by cognovit actionem, and second, by confes- 
 sion rel'icta verificatione. In the former case the defendant, after 
 service, instead of entering a plea, acknowledges and confesses that 
 the plaintiff's cause of action is just and rightful. In the latter case, 
 after pleading and before trial, tlie defendant both confesses the 
 plaintiff's cause of action and withdraws or abandons his plea or 
 other allegations, whereupon judgment is entered against him with- 
 out proceeding to trial. In order to sustain a judgment of either of 
 these sorts, it is essential that orocess, regularly issued, should have 
 been served upon the defendant (though he may accept service with 
 the same effect as if the writ had been served as it usually is) ; and
 
 3 1 J JUDGMENT 
 
 an njrrccmcnt in writing made out of court, authorizing tlie clerk to 
 enter up such a judgment, -ill not sustain it, where there has been 
 no appearance l)y the defendant." Blackstone says, on the subject of 
 confession of judgment at common law: "And this happens, in 
 the first place, where the defendant suft'crs judgment to go against 
 him by default, or viliil dicil: as if he puts in no plea at all to the 
 plaintiiT's declaration; by confession or cognovit actionem, where he 
 acknowledges the plaintiff's demand to be just; or by nan sum in- 
 ■formatiis, when the defendant's attorney declares he has no instruc- 
 tion to say anything in answer to tlie plaintiff, in defense of his client; 
 which is a species of judgment by default. If these, or any of them, 
 happen in actions where the s]>eciric thing sued for is recovered, as in 
 actions of debt for a sum certain, the judgment is absolutely com- 
 plete. And therefore it is very usual, in order to strengthen a credit ^ 
 or's security, for tlie debtor to execute a warrant of attorney to some 
 attorney named by the creditor, empowering him to confess a judg- 
 ment by either of the ways just now mentioned (by nihil dicit, cog- 
 novit actionem, or non sum informatus) in an action of debt to be 
 brought by tlie creditor against the debtor for the specific sum due; 
 which judgment when confessed, is absolute, complete and bind- 
 ing. . . ."3 Blackstone, Com. 396, 397. The great Virginia com- 
 mentator, ]\Ir. ]\linor, says on this subject (IV Minor's Inst. 726) : 
 "The defendant was always allowed to acknowledge tlie plaintiff's 
 action, and confess a judgment for the amount claimed, or for such 
 part tliereof as he and the plaintiff could agree upon, provided it was 
 done in open court. But a confession of judgment in the clerk's 
 office was never contemplated by the common law, and can only take 
 place in pursuance of the authority of some statute." 
 
 So according to these authorities the warrant of attorney, in 
 use at common law, was confined to the confession of judgments, 
 in the three ways enumerated by Blackstone, in a pending suit ; that 
 is by answering niJiil dicit, cognovit actionem, or non sum in- 
 formatus. And as Mr. Black says, judgments by confession of de- 
 fendant or on his warrant of attorney, without the institution of an 
 action, derive all their efficacy from positive or statute law. And 
 judgment in the clerk's office, as Mr. Minor says, was never con- 
 templated at the common law. Such warrant of attorney was usually 
 given by the defendant to the plaintiff, by way of security, on com- 
 promising an action ; and it authorized the attorney to whom it was 
 directed to appear for the defendant, and to receive a declaration 
 in an action to be brought against him, and thereupon confess the 
 same in the manner already indicated. Tidd's New Prac. (Ed. 1837) 
 275; I Tidd's Pract. (Ed. 1828) pp. 590, 606; 2 Chitty, Gen. Pract. 
 
 In the case at bar, counsel for defendants in error say, they rely 
 upon the fact that there is nothing in the record showing afiirma- 
 tively that process was not served. The record, however, purports 
 to be a complete transcript of all the proceedings which took place 
 in the clerk's office in vacation, not at rules; and as no process is 
 exhibited or referred to, we think we must necessarily say that no 
 suit was begun by process, and that there was no action pending in
 
 A. B. FARQUHAR CO., LTD., V. DEHAVEN 513 
 
 which at common law, a judgment on a warrant of attorney could 
 have been confessed, in either of the ways authorized by the ancient 
 practice. Mr. Freeman says, 2 Freeman on Judgments, section 547 : 
 "Judgments by confession are in no wise exempt from the rule 
 applicable to other judgments, that to be valid they must be entered 
 in a court having jurisdiction over the subject-matter of the action 
 and the parties thereto. 'Though no adjudication is in fact required 
 in entering a judgment of confession without action, yet it has all the 
 qualities, incidents and attributes of other judgments, and can not 
 be valid unless entered into a court which might have lawfully pro- 
 nounced the same judgment in a contested action.' Where the law 
 requires judgments to be signed by the judge, its provision extends 
 to judgments by confession, and renders them void if not so signed." 
 Looking to the literal terms of the power we see it authorizes ap- 
 pearance, but gives no specific authority to waive process, or to 
 appear in the clerk's office, or waive the filing of the declaration ; 
 and limited by the rules and practices prevailing at common law, 
 we must say no donee of the power had any authority to waive any 
 of the rights of the plaintiff, to be sued and served with process, 
 and to have a declaration filed on which judgment might lawfully 
 be entered. Without jurisdiction thus acquired a judgment at com- 
 mon law on warrant of attorney would have been void. And even 
 in those states, where it is otherwise provided by statute, the statute 
 being in derogation of common law rights, the statutes are strictly 
 construed.^^ 23 Cyc. 699. 
 
 Letus see how this question has been viewed in the other states 
 than Virginia. In Vermont, the Supreme Court says : Judgments on 
 confession without antecedent process have no basis other than 
 the_ statute, and a full compliance with the statute is necessary to 
 their validity, and the provisions authorizing them are to be strictly 
 construed."^ Mason v. Ward, 80 Vt. 290. In Iowa in response to 
 the contention that the statute there, regulating the confession of 
 judgment, was merely cumulative of the common law remedy, the 
 court said : "We do not think this position is correct. ... So 
 far as we are advised it has never been the understanding of the 
 profession nor of the business community in this state that warrants 
 of attorney to confess judgment had any place in our law. A confes- 
 sion of judgment pertains to the remedy. A party seeking to enforce 
 here a contract made in another state must do so in accordance with 
 the laws of this state. Parties can not by contract made in another 
 state engraft upon our procedure here remedies which our laws do 
 not contemplate nor authorize." Hamilton v. Schoenherger, 47 Iowa 
 385. In New Jersey the entry of a judgment by a justice on a judg- 
 ment note without process or proof was declared illegal. The court 
 said "The defendant must be brought into court in the usual way, 
 and the same proceeding had, as in other cases of written contracts/' 
 
 ■''Manufactitrcrs' Bank v. Si. John, 5 Hill (N. Y.) 407 (1843); Edgar v. 
 Greer, 7 Iowa 136 (1858) ; Chapin v. Thompson, 20 Cal. 681 (1862) ; Henry v. 
 Estes, 127 Mass. 474 (1879); Kahn v. Lesser, 97 Wis. 217, 72 N. W. 739 
 (1897). Compare Saunders v. Lipscomb, 90 Va. 647, 19 S. E. 450 (1894). 
 ZZ — Civ. Proc.
 
 51-1- Jl'DCMF.N'T 
 
 Stretch V. Hancock. 2 N. J. L. 193.="' In Tennessee, in Carlin v. 
 Taylor, 75 Tcnn. 666, the Supreme Court held, that no judgment 
 could be confessed in that state l)y an attorney, on a judgment note 
 Uke the one involved here. And in Kansas and Missouri, such notes 
 are condcnuictl. and the practice of employincf tlicm rcjmdiatcd on 
 ]irinciples of public policy, and as j::iving to the defendant no day in 
 court, and as permittinji^ the defendant to bargain away his right to 
 be heard in court, contrary to }niblic policy. McCrairy v. Ware, 
 6 Kans. App. 155; First Nat. Dank v. White, 220 Mo. 717. We are 
 inclined to agree with the IMissouri court in the case last cited, in 
 which they say: "Such agreements are iniquitous to the uttermost 
 and should be promptly condemned by the courts, until such time as 
 they may receive express statutory recognition, as tliey have in some 
 states."^! 
 
 Of course if a debtor has been summoned into court by process, 
 and given a day and an opportunity to be heard, no good reason 
 could be assigned why judgment should not be pronounced against 
 him at common law by confession on a warrant of an attorney. 
 The fact that the Virginia court and this court have recognized the 
 right of tlie defendant by personal appearance, to submit himself 
 without process to the jurisdiction of the court, and to confess a 
 valid judgment against him, and that a proper construction of our 
 statute, section 43, chapter 125 of the Code, might authorize a de- 
 fendant to appear in person in the clerk's office and make like con- 
 fession of judgment, we do not regard any justification for the 
 proposition, that he may by warrant of attorney authorize appear- 
 ance by and confession of judgment, either in court or in the clerk's 
 office, without process directed and regularly served upon him. It 
 is contended, however, that the old legal maxim, qui facit per alium, 
 facit per se, is as applicable here as in other cases. We do not think 
 so. Strong reason exists as we have shown, for denying its applica- 
 tion, when holders of contracts of this character seek the aid of the 
 court and of their execution process to enforce them, defendant 
 having no day in court or opportunity to be heard. We need not 
 say in this case that a debtor may not by proper power of attorney 
 duly executed, authorize another to appear in court and by proper 
 endorsement upon the writ waive service of process, and confess 
 judgment. But we do not wish to be understood as approving or 
 intending to countenance the practice of employing in this state com- 
 mercial paper of the character here involved. Such paper has here- 
 tofore had little if any currency here. If the practice is adopted 
 into this state it ought to be, w^e think, by act of legislature, with 
 all proper safeguards thrown around it, to prevent fraud and impo- 
 sition. The policy of our law is, that no man shall suffer judgment 
 
 "But see, now, Comp. Stat. New Jersey (1910), vol. I, p. 219, title 
 "Bonds and Warrants"; Shelmerdine v. Lippincott, 69 N. J. L. 82, 54 Atl. 
 
 237 (1903)- . ^ , 
 
 *^rirst Nat. Bank v. White, 220 Mo. 717, 120 S. W. 36, 132 Am. St. 612 
 C1909). See also Jemison v. Freed, 161 Ala. 598, 50 So. 52 C1909) ; Kans. Gen. 
 Stat. (1909), § 5996; Mo. Rev. Stat. (1909) ; §§ 21 13-21 16. The practice of 
 entering judgment by warrant of attorney rests on the statutes and rules of 
 court ©f the various jurisdictions. See, generally, 5 Encyclopaedia of Forms, 107.
 
 WHITNEY V. HOPKINS 515 
 
 at the hands of our courts without proper process and a day to be 
 heard. To give currency to such paper by judicial pronouncement 
 would be to open the door to fraud and imposition, and to subject 
 the people to wrongs and injuries not heretofore contemplated. This 
 we are imwilling to do. 
 
 These considerations lead us to conclude that a judgment by 
 confession in the clerk's office, on warrant of attorney, without pro- 
 cess regularly issued and served upon or accepted by defendant is 
 void on its face. We therefore reverse the judgment below, quash 
 the execution and award the defendant's costs here and in the court 
 below, incurred on said action.^^ 
 
 Robinson, J., and Brannon, J., dissent. 
 
 F. M. WHITNEY v. JAMES HOPKINS 
 Supreme Court of Pennsylvania, i8q o^ 
 13s Pa. St. 246 
 
 Appeal by the defendant from the action of tlie Court of Com- 
 mon Pleas of Susqueha«nna County in discharging a rule to set aside 
 a judgment in favor of the plaintiff against the defendant for 
 $4,765.55, with interest, entered by the prothonotary upon the filing 
 of articles of agreement referred to in the opinion of the court.^^ 
 
 Williams, J. : The learned counsel for the appellant is right in 
 the general proposition on which he rests his appeal. The prothono- 
 tary of the court of common pleas is merely the clerk of the court. 
 He has no authority, virtiife officii, to act as the clerk, agent, or 
 attorney of any person. It is his duty to record upon the minutes 
 of the court all judgments rendered by or confessed before the court 
 whose clerk he is. If he is not personally present, the court may 
 direct any competent bystander to make the entries upon the record ; 
 for the legal effect of such entries does not depend upon the person 
 by whom they may be copied or recorded, but upon the jurisdiction 
 of the court whose acts they are. It is also the duty of the prothono- 
 tary to enter, by himself or his clerks, on the records of the court, 
 any amicable action entered into in writing, and filed in his office, 
 when the court is not in session. He may also note the confession 
 
 '"Accord: IVilhelm v. Locklar, 46 Fla. 575, 35 So. 6 (1903). Compare 
 Jones V. Bradshaw, 16 Grat. (Va.) 3S5 (1863). And see Aultman Taylor Co. 
 V. Mead, 109 Ky. 583, 60 S. W. 294 (1901) ; Teel v. Yost, 128 N. Y. 387, 28 N. 
 I^- 353. 13 L. R. A. 796 (1891) ; Flanagan v. Bruner, 10 Tex. 257 (1853) ; Rose- 
 hrotigh V. Ansley, 35 Ohio St. 107 (1878) ; Stein v. Brunncr, 42 La. Ann. 772, 
 7 So. 718 (1890) ; Saunders V. Lipscomb, 90 Va. 647, 19 S. E. 450 (1894) ; 
 Hazel V. Jacobs, 78 N. J. L. 459, 75 Atl. 903, 27 L. R. A. (N. S.) 1066 (1910) ; 
 Acme Food Co. v. Kirsch, 166 Mich. 433, 131 N. W. 1123, 38 L. R. A. (N. S.) 
 8i4n (191 1); Jarrett v. Sippley, IS7 S. W. 975, 175 Mo. App. 197 (1913) ; 
 /rose V. Balla, 181 Ind. 491, 104 N. E. 851 (1914); Hutson v. Wood, 263 
 111. 376,. 105 N. E. 343 (1914).. 
 
 *'The statement of facts is abridged and the opinion o£ the court below 
 and arguments of counsel are omitted.
 
 5l6 JUDGMKXT 
 
 of jiulgincnt in such action by tlic defendant."* This he does simply 
 as the clerk and keeper of tlie records of the court in which the 
 parties aji^rce that their action shall be entered. Cook v. Gilbert, 8 
 S. & R. 5O7. He has no authority in the ])remises, and no duty to 
 dischari::e except to put faithfully into records of the court what 
 the i^arties have agreed shall go there. As an individual, he may 
 be autliorized to act for another in the same manner that any other 
 person may be ; and, when so authorized, his powers are derived 
 from the instrument under which he acts, and not from his office. 
 His commission as prothonotary gives him no right to act as attor- 
 ney in fact or at law for suitors or others, and imposes no duties 
 except such as grow out of his relations to the court as its clerk. 
 To justify him in acting for suitors, an express authority must be 
 shown, coming either from the person affected by his acts, or from 
 an act of the general assembly. By the act of February 24, 1806, 
 it was made tlie duty of the prothonotary of any court of record 
 within the commonwealth, on the application of the holder, to enter 
 judgment on any note, bond or other instrument of writing in which 
 judgment is confessed by the maker, or which contains a warrant 
 of attorney for an attorney at law or other person to appear and 
 confess judgment tliereon. The act directs that the judgment be 
 entered against the person or persons who executed the instrument, 
 and for the amount which, from the face of the instrument, may 
 appear to be due thereon. If the amount due can not be ascertained 
 from the face of the instrument, the prothonotary can not enter 
 judgment upon it, for the act of 1806 gives him no power to inquire 
 beyond. Connay v. Hahtead, 73 Pa. 354-^^ 
 
 The instrument on which the judgment in this case was entered 
 is a contract bearing date the ninth of April, 1884, by which the 
 plaintitif sold to the defendant a farm for $4,500. This amount was 
 to be paid in yearly installments, with interest annually on the whole 
 sum unpaid. The contract contained a confession of judgment in 
 these words : "The said party of the second part, in case default be 
 made for the space of three months in all or any of the above pay- 
 ments, does hereby confess judgment to the said party of the first 
 part, his heirs or assigns, for the whole amount unpaid on the above .. 
 agreement." On the back of the contract were the following in- ; 
 dorsements: "April i, 1885, paid $275; April i, 1886, paid $520; 
 April 2, 1888, $305." There was no indorsement for either 1887 or 
 1889, and neither that for 1886, nor that for 1888, was for the whole 
 amount of the payment then falling due. The judgment was entered 
 on the first day of June, 1889. 
 
 When this contract was presented to the prothonotary two ques- 
 
 I"See the acts of March 21, 1806, 4 Sm. L. 326, § 8, and June 13, i836,'\ 
 P L ^68, § 40; P. & L. Dip. (2d ed.) 5870-71; 10 P. & L. Dig. of Decisions/ 
 15853 r Cart£i V . /f//>'M._l£LPhi]a. 46ijj888). 
 
 "In Q^utnay-y^lakteadj/i^e agreement was for the sale of a tract ot 
 land at ten dollars an acre, the number of acres -to be ascertained by a survey. 
 Held, tliat until the number of acres should be determined, a matter wholly 
 outside of the paper, the amount of the purchase money could not be know-^n 
 and the prothonotary had no Ruide in entering judpment. See also Latrqbe 
 Bldg., &c., Assn. v. Fritz, 152 Pa. St. 224, 25 Atl. 558 (1893).
 
 WHITNEY r. HOPKINS 51/ 
 
 tions were suggested for his consideration. The first grew out of 
 the terms of the confession. Had the maker made default in any 
 payment for the space of three months ? The second arose from the 
 words of the act of 1806. Could the amount due be ascertained 
 from the face of the instrument? If both questions could be an- 
 swered affirmatively, the judgment could be entered. If either could 
 not be so answered, the prothonotary had no power in the premises. 
 The possession of an instrument in writing for the payment of 
 money affords proof, prima facie, of a right in the holder to recover 
 upon it according to its terms. The holder is not required to prove 
 that it has not been paid. His case is made by the production of 
 the instrument in the first instance, and the burden of showing pay- 
 ment is on him who alleges it. Whether the instrument be a note, 
 a bond, or a contract, like that on which this judgment was entered, 
 the rules of evidence are the same. The instrument makes for the 
 holder a case, prima facie, on which he could recover before a 
 jury, or have a judgment entered by virtue of the power of attorney. 
 Both the default and the amount due were ascertainable in the first 
 instance from the face of the instrument. If payments had been 
 made that did not appear on the paper, so that there was in fact 
 no default, the court would on application hear the defendant's 
 proofs, and strike off the judgment; but, until the prima fades of 
 the instrument is overcome by proof, the judgment must stand. The 
 trouble with the appellant's case is that the general rule which he 
 invokes is not applicable upon the facts of this case. The instrument 
 was within the act of 1806, and upon its face it was practicable for 
 the prothonotary to determine the existence of a default, and the 
 amount due to the holder. The judgment was rightly entered, and 
 the rule to strike it off was rightly refused.^^ 
 The judgment is therefore affirmed. 
 
 '"The prothonotary's power does not extend beyond entering judgment 
 in those cases where the instrument fixes an amount or sum certain or the 
 amount can be ascertained upon the face of the instrument. Compare Helvcte 
 iv. Riipp, 7 Serg. & R. (Pa.) 306 (1821) ; James v. Crownover, 3 Sad. (Pa.) 
 hz, 6 Atl. 42 (1886); Miller v. Flint Glass Works, 172 Pa. St. 70 (1895); 
 \First Natl. Bank v. Bartlett, 35 Pa. Super. Ct. 593 (1908), with Rate 
 fv. Heslip, 4 Pa St. 139 (1846); Weaver v. McDevitt, 21 Pa. Super. Ct. 
 597 (1902); Stranhurg v. Manross, 19 Pa. D. R. 849 (1910) ; Toledo 
 [Computing Scale Co. v. Manfred, 20 Pa. Dist. R. 69 (1910) ; Purvis v^ 
 KOempsey, 238 Pa. 173, 85 Atl. 1091 (1913)- On a penal bond judgment shouM 
 be entered for the amount of the penahy. Waldo v. Fobes, i Mass. 10 (1804) ; 
 Den v. Znllcrs, 7 N. J. L. 153 (1824) ; Suburban Bldg. & L. Assn. v. Paulus, 
 80 Mo. App. 36 (1899) ; Kcech v. O'Herro n. Al Pa. SupenJTt. Tf^ (lonn;^ ; 
 KcatinoJ^. .Fj Lddrick, 24 o"Par59n, 88 Atl n (1913). Compare Disoway v. 
 Edwards, 134 N. Car. 254, 46 S. E. 501 (1904). 
 
 Judgment can not be entered for a sum in excess of the amount limited 
 by the warrant. Tucker v. Gill, 61 111. 236 (1871) ; Sloane v. Anderson, 57 
 Wis. 123, iz N. W. 684, 15 N. W. 21 (1883) ; Mutual Guarantee Build inn. 
 &c.. Assn. V. Fallen. 21 Pa. C. C. 617 ritoS ') ; tortune v. Bartolomei, l64"Tll. 
 51, 45 N. E. 274 (1896). A warrant of attorney may confer authority to con- 
 fess judgment before the debt becomes due. Roundy v. Hunt, 24 III. 598 
 (i860) ; Farwell v. Huston, 151 111. 239, 37 N. E. 864, 42 Am. St. 237 (1894) ; 
 hfrgnty T , T, Co. v. Ran, 1. 53 Ph /|88 , 26Atl. 220 (1893) ; Allport v. Meutsch. 
 166 111. App. 172 (1911). Contra: Warwick v. Petty, 44 N. J. L. 542 (1882) ; 
 Spier V. Corll, 33 Ohio St. 236 (1877), and see Reeves v. Kroll 133 Wis. 196. 
 113 N. W. 440 (1907). 
 
 \ 
 X
 
 5lS JUDGMENT 
 
 JOHN GUYER'S ADMINISTRATOR r. WILLIAM GUYER 
 
 Superior Court ok Dklawaki:, i88i 
 
 6 Housl. (Pil.) 430 
 
 Judgment No. 386, May Term, 18S0, of this court at the suit 
 of Joint Giiycr v. W'iUiam G. Guycr, had upon a rule laid for 
 the purpose at the following November term, been stricken from the 
 record l)y order of the court on the proof made under the rule, and 
 afterwards at tliat term, November 2y, 1880, judgment was again 
 entered at the suit of the administrator of John Guyer, deceased, 
 against \\''illiam G. Guyer, on the same judgment-bond, and by 
 virtue of the same warrant of attorney appended to it; and now, at 
 this term, Whitely, for the defendant, had obtained a rule upon the 
 plaintiff to show cause wherefore the latter judgment should not 
 be set aside. 
 
 Vandegrift (Bradford with him) now showed cause. The first 
 judgment referred to, and which was set aside by the order of the 
 court, was an absolute nullity. The warrant of attorney on which it 
 was irregularly and improperly entered was to confess judgment at 
 the suit of John Guyer, his executors, administrators, etc., in the 
 usual form, and which, of course, imported at the suit of John 
 Guyer in his lifetime or at the suit of his executor or administrator 
 after his death ; but it was proved on the hearing of the rule to set 
 aside the judgment, and upon which it was set aside by tlie court, 
 that it was not entered imtil two years after the death of John 
 Guyer, and was, even as late as that, entered in his own name as a 
 living party to the judgment, not only several terms after his death, 
 but two weeks before any administration had been granted on his 
 estate. All, therefore, that had been done in the matter of enter- 
 ing the judgment, up to that time, by any one, as the agent, friend 
 or representative of the deceased obligee in the bond and warrant of 
 attorney was wholly without authority in law, and was also without 
 any effect or operation whatever in law, and the judgment after- 
 wards properly and correctly entered upon the same bond and war- 
 rant of attorney, in the name of his duly appointed administrator, is 
 regular, lawful and valid. 3 Wash. 558; 7 Bingh. 337; 8 T. R. ; 
 4 Taunt. 884; I Sug. 371 ; 2 Sug. 238; i Houst. 516; 4 Harr. 280, 
 527; 3 Harr. 241, 264, 519. The error and irregularity in the enter- 
 ing of the first judgment could not possibly have been amended by 
 the court."'' 
 
 ''A warrant of attorney to confess judgment, if coupled with an interest, 
 is not revocable at the will of the debtor. Odes v. Woodward, 2 Ld. Raym. 
 766, 849 (1702) ; Odes v. Woodward, i Salk. 87; Wassell v. Reardon, 11 Ark. 
 705, 44 Am. Dec. 245 (1851) ; Raplcy v. Price, 11 Ark. 713 (1851) ; Bakery^ 
 Lukcns, 3.7 Pa. 146 (18^0); Sp encer v. Re ynolds, o Pa. C. £L2AQ_ ( 1899) • 
 Compare A'raMi- v. F earn e, 16 Ala. 689, 50 Am. Dec. 197 (1849); Gale v. 
 Chase, 3 Johns. (N. Y.) 147 (1808) ; Sherman v. Brenner, i W. N. C. (Pa.) 
 193 (1S74) ; Rea v. Forrest, 88 111. 275 (1878) ; First Nat. Bk. v. Ciinninghani, 
 48 Fed. 510 (1891), and sec Hunt v. Rotismanier, 8 Wheat. (U. S.) 174, 5
 
 GUYER V. GUYER 519 
 
 Whiteley. Any entry of judgment by a warrant of attorney is 
 an execution of the warrant, and it is thereupon functus officio. 
 This is not the cause of an entirely unauthorized entry of a judg- 
 ment on the warrant of attorney in question, but it was in strict 
 conformity with the terms of it, and nothing aliunde, or outside the 
 instrument itself, can be allowed to annul or defeat the execution 
 of it when made in literal conformity with the terms of the power 
 conferred by it. i Tidd. 552; i Houst. 516; 3 Wash. 568 ; 6 S. &. 
 R. 166: 5 Watts 28q ; i Sug. 89. 
 
 The Court: The attempt to enter the first judgment in the 
 name of the obligee in tlie bond several terms of the court after his 
 death, under the authority of the warrant of attorney, was so utterly 
 inconsistent with the power conferred by it, and contrary to law, that 
 we had, and still have, no hesitation in considering it as a total fail- 
 ure to execute the warrant, and an absolute nullity in contempla- 
 tion of law. The rule in this case must therefore be discharged.^^ 
 
 L. ed. 589 (1823). Judgment, however, can not be entered by warrant of at- 
 torney after the death of the debtor. Note, I Vent. 310 (1678); Savile V. 
 Wiltshire, Barnes 270 (1746) ; Bennett V. Davis, 3 Cow. (N. Y.) 68 (1824) ; 
 Milnor v. Milnor, 9 N. J. L. 93 (1827) ; Heath v. Brindlcy, 2 Ad. & El. 365 
 (1834) ; Blackburn v. Godr'ick, 9 Dowl. 337 (1841) ; Lanninq v. PazM flj^^^Pa. 
 St . 480 (186 1) ; Tobias v. Dnrsey. 2W Ki C (-p:^'^ 15 (1875) ; Gordon v ^MarJ- 
 7?v. 4 W. JM. C. (Pa .) 37 (1S77) ; Haddock v. Stevens, 15 N. Y. Civ. Pro. 248 
 (1888). A'or can judgment be confessed in favor of a creditor dead at the 
 time. IVild V. Sands, 2 Str. 718 (1726) ; Short v. Coglin, i Anst. 225 (1792) ; 
 Cowie v. Alla-way, 8 D. & E. 257 (1799) J Hcnsall v. Matthew, 7 Bingh. 337 
 (1831) ; Finnrvv. Ferguson. 3 W.itts. ^ .S. (PR.\y]J7. (1842) ; Went 3 V. B ealor. 
 1 4 Pa. C. C. 3 2 2 (1804) . But if the warrant is in favor of the creditor, 'his 
 executors and administrators," judgment may be entered in favor of the per- 
 sonal representatives. Coles V. Haden, Barnes, 44 (1746) ; Baldwin v. Atkins, 
 2 Dowl. 591 ( 1834) . 
 
 As to warrants twenty years old, see Parsons v. Cannon, 27 Del. 298, 
 88 Atl. 470 (1912) ; Bicrlv \' Hamor, Ko Pa. Super. Ct. 12X (1Q 12'). 
 
 '''A judgment having been once entered on a warrant of attorney the 
 warrant is fnnctns officio and a second judgment can not be entered. _Cam pbell 
 V. Canon . Add . (Pa.) 267 (i795) ; IJvcdcy_y. .P.cnnnrk, 9, "Rrowne,, (Pa.") 
 32\ {\%\3)\F air child V. Camac, 3 WasHTC C. 558, Fed. Cas. No. 4610 
 (1819) ; Martin V-Rcx, 6 Serg. & R. 296 ( 1820) ; Neff y. Barr, 14 Serg^ & 
 R. 166 (1826) : Uh-ich V. Voneida. i P. & \\L _(Pa. ) 24S {iS^JTManufac- 
 turers & MechanTcs bank v. Cowden, 3 Hill (N. Y.) 461 (1842) : Ely v. Kar- 
 many, 23 Pa. St. 314 ( 1854) ; Banning v. Taylor. 2A Pa. St. 2 07 (1855) ; Dixon 
 
 " v. llIt//c7 \J^ ~Fa." C- "C. 3 ?,^ ( 7597) : Palmer v. Hohman, 47 Pitts. L. J. 96 
 (1899). Wlie're the power has been irregularly exercised, can a second judg- 
 ment be entered after the first has been set aside? It was so held in Huner v, 
 Doolittle, 3 G. Greene (Iowa) 76 (1851), and, semble, Coiilson v. Clutterhuck, 
 2 Dowl. (N. S.) 391 (1842) ; Bennett v. Simmons, 2 D. & L. 98 (1844) ; 2 
 Chitty's Pr. 869. In Pennsylvania a power to confess judgment authorizedX 
 'by a warrant of attorney is exhausted by the entry of judgment, and a second \ 
 judgment can not be entered, although the first has been stricken off because j 
 Uio formal confession was filed of record. BeUcvue Bor. v. Hallett, 234 Pa. / 
 I191, 83 Atl. 66 (1912). Accord: Ostcrhout v. Briggs, 37 Pa. Super. Ct. 169/ 
 1(1908); Philadelphia v. Johnson, 208 Pa. 645, 57 Atl. 1114 (1904), affg. \ 
 [23 Pa. Super. Ct. 591 (1903) ; Commonwealth v. Massi, 225 Pa. 548, 74 Atl. 1 
 419 (1909) ; Hecren v. Remington, 47 Pa. Super. Ct. 437 (1911). /
 
 5 JO JL'DOMKNT 
 
 SELIGMAX T\UVAl kt at., r. l-.DWARD HERMAN et al. 
 
 Court ok ArrKAi.s or Ni:\v York, 1889 
 115 A^ Y. 163" 
 
 Appeal from jiulfi^mcnt of the general term of the Supreme 
 Court in the First Judicial Department, entered upon an order made 
 Way 13, 1S87, which affirmed a judgment in favor of defendants, 
 entered upon an order sustaining a demurrer to plaintiff's complaint. 
 
 This action was brought by plaintiffs, as judgment-creditors of 
 the defendants Edward and ]\Ioses Herman, to vacate a judgment 
 obtained against him by defendant Tuska. 
 
 The complaint alleged, in substance, that the judgment in favor 
 of Tuska was entered upon service of summons and complaint and 
 an offer of judgment served on the same day the complaint was 
 served; that the object of procuring judgment in this form was to 
 evade tlie statute ; that a portion of the cause of action was a prom- 
 issory note, the consideration of which was not set forth in the com- 
 plaint as required by the statute relating to judgments by confes- 
 sion, as to setting forth the consideration of the claim upon which 
 judgment is sought; that the judgment was, in effect, a judgment by 
 confession, and so was void for want of such statement. 
 
 Earl, J. : A creditor may obtain a judgment against his debtor 
 in either one of three ways: (i) He may serve a summons in an 
 action and take judgment after a trial or by default, and he must 
 pursue the regular practice to that end.^° (2) He may serve a sum- 
 mons and complaint and obtain an offer of judgment from tlie de- 
 fendant, and upon that enter judgment under section 738 of the 
 Code; and if he adopts that course, he must pursue the practice 
 prescribed;*^ or (3), he may obtain a judgment by confession in the 
 
 '^Affirming 44 Hun (N. Y.) 489. The statement of facts has been modified 
 from that report and the arguments of counsel omitted. 
 
 *°N. Y. Code Civ. Proc, § 1212, et scq. 
 
 "X. Y. Code Civ. Proc, § 738. The defendant ma\-, before the trial, 
 serve upon the plaintiff's attorney a written offer to allow judgment tp be 
 taken against him for a sum, or property, or to the effect, therein specified, 
 with costs. If there are two or more defendants, and the action can be 
 severed, a like offer may be made by one or more defendants, against whom 
 a separate judgment may be taken. If the plaintiff, within ten days there- 
 after, serves upon the defendant's attorney, a written notice that he accepts 
 the offer, he may file the summons, complaint, and offer, with proof of accept- 
 ance, and thereupon the clerk must enter judgmentaccordingly. If notice of 
 acceptance is not thus given, the offer can not be given in evidence upon the 
 trial; but if the plaintiff fails to obtain a more favonible judgment, he can not 
 recover costs from the time of the offer, but must pay costs from that time. 
 
 See Hill v. Northrop, Q How. (N. Y.) 525 (1854) ; Ranney v. Russell, 3 
 Duer 689, 10 K. Y. Super. Ct. 6S9 (1854) ; Dridenbacker v. Mason, 16 Hov/. 
 Pr. (X. Y.) 203 Ci8s8) ; White v. Bogart, 7Z N. Y. 256 (1878) ; Riggs v. Way- 
 dell, 78 N. Y. 586 (1879) ; Shepherd v. Moodline, 150 N. Y. 183, 44 X- E. 
 963 (1896); United States Mortgage, &c., Co. v. Hodgson, 30 Misc. 86, 61 
 N. Y S. 868 (1R99)-
 
 TRIER V. HERMAN 52 1 
 
 manner provided in section 1273, etc., of the Code.*^ He has the 
 statutory right to pursue either of these methods. He may pursue 
 one for the express purpose of avoiding the others, because the 
 statute gives him tlie absolute choice. If his practice is regular and 
 his claim and proceedings are honest and bona fide, no court will 
 deprive him of the advantage his judgment will give him. He can 
 not compel his debtor to give a confession of judgment, and if he 
 can not obtain one, he must pursue one of the other methods. 
 
 Here there is no claim that defendants' practice was irregular, 
 or that the debt for which judgment was taken was not actually due, 
 or that there was any fraud or bad faith practiced upon any one. 
 
 This case is unlike that of White v. Cotshaiisen, 129 U. S. 329, 
 because in that case there was but one statute regulating the matter, 
 and that was violated; and it is more like the case of Beards v. 
 Wheeler, 11 Hun 539; 76 N. Y. 213. 
 
 For these reasons, and those expressed more at large in the 
 opinion of the general term, the judgment should be affirmed, with 
 costs. 
 
 All concur. 
 
 Judgment affirmed.*^ 
 
 *^N. Y. Code Civ. Proc, § 1273. A judgment by confession may be en- 
 tered, without action, either for money due or to become due, or to secure a 
 person against contingent liability in behalf of the defendant, or both, as pre- 
 scribed in this article. 
 
 § 1274. A written statement must be made, and signed by the defendant, 
 to the following effect : 
 
 1. It must state the sum, for which judgment may be entered, and au- 
 thorize the entry of judgment therefor. 
 
 2. If the judgment to be confessed is for money due or to become due, 
 it must state concisely the facts, out of which the debt arose ; and must show 
 that the sum confessed therefor is justly due, or to become due. 
 
 3. If the judgment to be confessed is for the purpose of securing the 
 plaintiff, against a contingent liability, it must state concisely the facts, con- 
 stituting the liability ; and must show, that the sum confessed therefor does 
 not exceed the amount of the liability. 
 
 The statement must be verified by the oath of the defendant, to the 
 effect, that the matters of fact therein set forth are true. See Triiscott v. 
 King, 6 N. Y. 147 (1852) ; Lanning v. Carpenter, 20 N. Y. 447 (1859) ; Freligh 
 V. Brink, 22 N. Y. 418 (i860) ; Gandall v. Finn,* 40 N. Y. 217, 2 Abb. Dec. 
 232 (1864) ; Wood v. Mitchell, 117 N. Y. 439, 22 N. E. 1125 (1889) ; Critten 
 V. Vanderburgh, 151 N. Y. 536, 45 N. E. 952 (1897) ; Blackmer v. Greene, 20 
 App. Div. 532, 47 N. Y. S. 113 (1897); Wild v. Porter, 22 App. Div. 179, 
 47 N. Y. S. 1036 (1897) ; Anderson v. Shutts, 114 App. Div. 308, 99 N. Y. S. 
 893, 37 Civ. Proc. R. 141 (1906). Under these sections judgment can not be 
 confessed for a tort. Burkham v. Van Suan, 14 Abb. Pr. (N. S.) 163 (1873). 
 
 ^'Generally, a judgrnent by consent of the parties is as conclusive upon 
 the parties and their privies as a judgment in invitiim. Harding v. Harding, 
 198 U. S. 317, 25 Sup. Ct. 679, 49 L. ed. 1066 (1905) ; Hoiipt v. Bohl, 71 Ark. 
 330, 75 S. W. 470 (1903); Clark v. Charles, 55 Nebr. 202, 75 N. W. 563 
 (1898) ; Casler v. Chase, 160 Mo. 418, 60 S. W. 1040 (1900), but it may be 
 inquired into for fraud. Edison Gen. Electric Co. v. Westminster & V. T. 
 Co., L. R. (1897) App. Cas. 193; Hambleton v. Yocum, 108 Pa. St. .304.
 
 !;jj JUDGMENT 
 
 SECTION 3. JUDGMENT BY DEFAULT 
 
 MORRICE r. GREEN 
 Court of King's Bench, 1699 
 
 3 Salk. 213. 
 
 In this case it was liolJ that a judgment by nihil dicit is where 
 one is in court, and required to make answer to what is objected 
 against him, but he is silent and says nothing in his defense.** 
 
 There is likewise a judgment for departing in despite of the 
 court, and tliat is where the party appears, and, being to attend that 
 day, goes out of the court without leave of the court ; as in common 
 recoveries, where the common vouchee comes in and pleads nul 
 tort, mil disseisin, and then the demandant imparls generally, and 
 not to a day certain ; and for that reason the vouchee is still obliged 
 to attend the court, but doth not; then the entry is, postca eodem 
 die revenit the demandant, and because the vouchee is not there but 
 is departed, therefore the demandant hath judgment.*^ 
 
 And lastly there is a judgment by default, and that is where 
 the party hath a day certain, and is demandable, and being demanded 
 doth not appear, whereupon judgment is given against him by de- 
 fault: and these are distinct judgments, which can not be used the 
 one for the other. See Co. Entr. 269 a. Rast Ent. 173 b.*^ 
 
 "Tidd's Practice, 562; Com\-n's Digest, "Pleader," (c) 42; Foster v. Fil- 
 ley 2 111. 256 (1836) ; Cross v.' Watson, 6 Blackf. (Ind.) 129 (1842) ; Sum- 
 vicrlin v. Dozi'dle, 24 Ala. 428 (1854) ; Safford v. Vail, 22 111. Z27 (1859) ; 
 Dart v. Hercules, 34 111. 395 (1864) ; Wilcox v. Field, i Colo. 3 (1864) ; Mc- 
 Nasser v. Sherry, 1 Colo. 12 (1864) ; Gilder v. Mclntyre, 29 Tex. 89 (1867) ; 
 Hochme v. Rupear, i Colo. 405 (1871) ; Comer v. Shiner, 4 Colo. 246 (1878) ; 
 Hutchinson v. Powell, 92 Ala. 619, 9 So. 170 (1890) ; Glens Falls Ins. Co. v. 
 Porter, 44 Fla. 568, 33 So. 473 (1902) ; Endowment Dept. v. Harvey, 6 Ala. 
 App. 239 (1912). For form see Stephen on Pleading (9 Amer. ed.) 114. 
 
 *'Co Litt. 139a ; Brooke's Abridgment, "Departure in Despite" ; 7 Viner's 
 Abridgment, 449; Y. B. 22, Edw. Ill 2; Y. B. 3, Hen. IV, 2; Y. B. 9, 
 Hen. V, 5; Y. B. 9, Hen. VI, 58; Lilbitrne v. Heron, Cro. Jac. 292 (1611). 
 
 ^'Co. Litt. 25Qb ; Sleigh v. Chetham, I Show. 20, 65 ( 1689) ; Staple v. 
 Hayden, i Salk. '216 (1703); Howell v. Denniston, 3 Caines (N. Y.) 96 
 (1805) ; Mason v. Germaine, i Mont. 263 (1870) ; Holtzman v. Martinez, 2 
 N. Mex. 271 (1882) ; Grigg v. Gilmer, 54 Ala. 425 (1875) ; Falken v. Hoiisa- 
 tonic R. Co., 63 Conn. 2s8, 27 Atl. 1117 (1893); Chicago, C. C. & St. L. 
 R. Co. and P. & E. Ry. Co. v. Bozarth, 91 111. App. 68 (1900). "At common 
 law judgment against the defendant for default of appearance was unknown, 
 the penalty for his contumacy being distress infinite and outlawry ._ But if 
 after appearing he neglected to make defense by plea or demurrer within the 
 time allowed, judgment by nihil dicit— 'he says nothing'— might be taken 
 against him." Ahele.^ v. Pozvell. 6 Pa. Super Ct. I2t. (i8q 7) ; Rhoades v. 
 Delaney, "O Ind. 468 (187s) ; Douglass v. Langdon, 29 Iowa 245 (1870) ; Fan- 
 ning V. R\is.^ell, 81 111. 398 (1876). By statute of 5 George II, ch. 27, to ex- 
 pedite the plaintiff's proceedings, if the defendant after service of process did 
 not appear at the return day or within eight days thereafter, the plaintiff was 
 permitted to enter a common appearance or file common bail and proceed as 
 if the defendant had appeared. Carter v. Daisy, 42 Miss. 501 (1869). There
 
 DAVIS V. GRANISS 523 
 
 DAVIS V. GRANISS 
 
 Supreme Court of Indiana, 1839 
 
 S Black f. (Ind.) 79 
 
 Error to tlie La Porte Circuit Court. 
 
 Sullivan, J. : Assumpsit by C, B. Graniss and others against 
 Davis and one Allison on a promissory note. Davis appeared and 
 pleaded to the action. Allison, on whom process had been duly 
 served, entered no appearance. An issue was made on the plea filed 
 by Davis. Verdict and judgment against Davis alone. 
 
 This judgment must be reversed. The error consists in taking 
 judgment against one of the defendants only. The principles which 
 govern suits against joint contractors are, we presume, familiar to 
 all. A judgment by default should have been taken against Allison, 
 and the jury that tried the issue made on the plea filed by Davis, 
 should have been sworn to assess the damages against Allison also. 
 2 Arch. Pr. 23. 
 
 Judgment reversed.*^ 
 
 would seem to be little material difference between a judgment by nihil dicit 
 and one by default. Winn v. Levy, 2 How. (Miss.) 902 (1838) ; Manville v. 
 Parks, 7 Colo. 128, 2 Pac. 212 (1883) ; Elyton Land Co. v. Morgan, 88 Ala. 
 434, 7 So. 249 (1889), and see Barhe y. Davis, 1 Miles (Pa.) 118 (1835). In 
 fact, the modern tendency is to use the term default" in its broadest sense, 
 so as to include any failure by a party to a suit to take a step required by law 
 in its prosecution or defense. 6 Enc. PI. & Pr. 10; Warren v. Kennedy, i 
 Heisk. (Tenn.) 437 (1870) ; Acheson v. Inglis, 155 Iowa 239, 135 N. W. 
 632 (1912). But a judgment for want of a sufficient affidavit of defense is a 
 judgment upon defense made, and not on a default. Abcles v. Powell, 6 Pa . 
 Super. Ct. 123 (189 7). 
 
 For the modem English practice see Rules of Supreme Court, order xxvii. 
 And see N. Y. Code Civ. Proc, §§ 1212-15 ; Penna. arts Tnnp 73, 1836. P. L.I/ 
 568, § 33 ; P.. & L. Dig. (2d ed_J_584.S ; Ma rch 28. 183 ,^. P. L. 88. § 2 : P. & Li 
 Dig. (2d ed.T5847 ; May 25, 1887, P. lITzji, § 5 ; P." & L. Dig. (2d ed.)L 
 5853; April 22, 1889, P. L. 41 ; P. & L. Dig. (2d ed.) 5867. New Jersey Comp. 
 Stat. (1910), p. 4094, § 133; N. J. Laws, 1912, p. 394; Mass. Rev. Laws (1902) 
 ch. 173, § 54; Cal. Code Civ. Proc. (1915), § 585; Ohio Gen. Code (1910) 
 p. 2482. 
 
 A judgment by default against one who has neither been served with 
 process nor entered an appearance in the action is irregular and void. Moore 
 V. Watkins, i Ark. 268 (1839) ; Townsand v. Townsand, 21 111. 540 (1859); 
 Swift v. Dixon, 131 N. Car. 42, 42 S. E. 458 (1902) ; Ault v. Cowan (2), 20 
 Pa. Super. Ct. 628 (1902); Jones v. Roland, 8 Blackf. (Ind.) 272 (1846); 
 Harris V. Hardeman, 14 How. (U. S.) 334, 14 L. ed. 444 (1852). Statutes 
 providing for constructive service are in derogation of the common law and 
 must be strictly followed. Jordan v. Giblin, 12 Cal. loo (1859); Thompson 
 v. Carroll, 36 N. H. 21 (1857) ; Bardsley v. Hines, 23 Iowa 157 (1871) ; Pen- 
 noyer v. Neff, 95 U. S. 714, 24 L. ed. 565 (1877) ; Bowler v. Ennis, 46 App. 
 Div. 309, 61 N. Y. S. 686 (1899); Porter v. Prince, 188 Mass. 80, 74 N. E. 
 256 (1905). Judgment by default entered prior to the time allowed by law 
 for an appearance is erroneous. Winaeri v. C nnnpU^ a Sprfr^_^T? (Pa.) 237 
 
 *'At common law, where judgment by default was signed as to part of 
 the defendants in a joint action, and issue joined as to the residue, a special
 
 5 -'4 JUDGMENT 
 
 BOULTKR z: FORD. 
 Court ov King's Bench, 1662 
 
 Sidcrfin 76." 
 
 Covenant is brought against two upon an indenture by which 
 they covenant artificially to erect a house, etc. One makes default 
 wherefore judgment is against him. The other pleads that the two 
 did artificially erect the house upon which they are at issue and 
 found for the defendant. And it was moved for the plaintiff, not- 
 widistanding the verdict, he should have a writ of inquiry against 
 that defendant against whom judgment is given by default be- 
 cause here the act to be done should be done by both and one is 
 condemned of nonfeasance by the judgment. But it was held by the 
 court that no writ of inquiry should issue against the other de- 
 fendant to charge him with any damages, for it appears by the 
 
 venire was awarded tarn ad triandum qtiam ad inquirendum, as well to try the 
 issue as to inquire of the damages; and the jury that tried the issue in that 
 case assessed the damages for all. 2 Arch. Pr. 700; Hcydon's Case, 11 Co. 5 
 (1612) ; Crcssy v. U'chb, 2 Str. 1222 (1744) ; Dicker v. Adams, 2 B. & P. 163 
 (1800) ; Hart v. De Lord, 17 Johns. (N. Y.) 269 (1820) ; ]'an Schaik v. Trot- 
 ter, 6 Cow. (N. Y.) 599 (1S27) ] (y2lcalv^O^Nc_ql,^4 Watts & S. (Pa.^ t:;o 
 ( 1842) ; Day v. Braidey.l Pa. St. 4g QjCl845) ; Gerrish v. Cummings, 4 Cush. 
 (Mass.) 39": {iii4g) ; Chase v. Lovering, 27 N. H. 295 (1853); Storey v. 
 Bird, 8 Mich. 316 (i860) ; Coynmonv.'ealth v. McCleary, Q2 Pa. St. 18 8 (1879) ; 
 Netso V. Foss, 21 Fla. 143 (1884) ; I Vatsontown Nat. Bank v. Messenger. 6 
 Pa. C. "C. 6o q_IiS8clL; Stainbrook v. Duncan, 45 111. App. 344 (1892) ; Coles 
 V. McKenna, 80 N. J. L. 48, 76 Atl. 344 (1910) ; Ernst Tosctti Brew. Co. v. 
 Wagner, 168 111. App. 27 (1912) ; Long v. Gzvin, 188 Ala. 196, 66 So. 88 (1914). 
 Hence, in an action against several persons on a joint debt if one defaults, 
 final judgment can not be entered against him until the issues as to the 
 others are disposed of. Russell v. Hogan, 2 111. 552 (1839) ; Teal v. Russell, 
 3 111. 319 (1840); Hitlme V. Janes, 6 Tex. 242, 55 Am. Dec. 774 (1851); 
 Barker v. Justice, 41 Miss. 240 (1866); Campbell v. Floyd, 153 Pa. St. 84, 
 25 Atl. 1033, 1038 (1893) ; Murtland_J S.JEkixJ!L.JS^ Pa. St 09, 21 Atl. 1038 
 (1893); Uher V. Cameron State Bank (Tex. Civ. App.), 125 S. W. 321 
 (1910) ; Silts V. Springer, 236 111. 276, 85 N. E. 748 (1908). Compare: Mc- 
 Jntyre V. Smith, 108 Va. 736, 62 S. E. 930 (1908). See, also, Blessing v. Mc- 
 Lindcn, 81 N. J. L. 379, 79 Atl. 347, 35 L. R. A. (N. S.) 3i2n (1911) ; Cellu- 
 lose Package Mfg. Co. v. Calhoun, 166 Cal. 513, 137 Pac. 238 (1913)- 
 
 Generally, in actions on joint contracts, where no purely personal defense 
 is interposed by one defendant, judgment must be rendered against all who 
 are served or none. Tut tie v. Cooper, 27 Mass. 281 (1830) ; Rohr v. Davis, 9 
 Leigh (Va.) 30 (1837) ; State v. Gibson, 21 Ark. 140 (i860) ; Addcrton v. Col- 
 lier, 32 Mo. 507 (1862) ; Donnelly V. GraJiam, '^-/ Va St. 27/] (187=;') ; Curry v. 
 Roundtree, 51 Cal. 184 (1^75) ; Slapp v. Davis, 78 Ind. 128 (1881) ; Wootters 
 V. Kauffman, 67 Tex. 488, 3 S. W. 465 (1887) ; Pen fold v. Sly field, no Mich. 
 343. 68 X. W. 226 (1896) ; Scho field v. Palmer, 134 Fed. 753 (1904) •,3olt^. 
 V \fiirhUio-f. 37 Pa. Super Ct. 375 (1908) ; Edgerton v. Chicago, R. L & P. 
 R. Co., 146 111. App. 199 (1909), and, therefore, an interlocutory judgment 
 against one could not be made final until the case is concluded as to the 
 others, i Black on Judgments (2d ed.), § 206; Taylor v. Beck, 3 Rand. (Va.) 
 316 (1825) ; Dow V. Rattle, 12 111. 373 (1851) ; Swanzey v. Parker, 50 Pa. St. 
 441, 88 Am. Dec. 549 (1866). 
 
 *"S. C. I Keb. 284. Part of the case is omitted.
 
 WILKINS V. BROCK 5^5 
 
 verdict that the covenant is performed. And the other defendant 
 shall have costs against the plaintiff. See Tilly and Woody's Case, 
 7 Edw. IV, 31 ; Parker and Lawrence's Case, Hob. 14, 17. 
 
 WILKINS' ADMR. v. BROCK AND ROSELLE 
 
 Supreme Court of Vermont, 1908 
 
 81 Vt. 332." 
 
 RowELL, C. J. : This is an action for malpractice as physicians. 
 The declaration contains a count in trespass for assault and battery 
 and two counts in case. At the close of all the testimony, the count 
 in trespass was ruled out, there being no evidence to support it, and 
 the case submitted only on the other counts. 
 
 The defendant Roselle let judgment go by default. The de- 
 fendant Brock pleaded not guilty, and the issue was tried by jury 
 and found for the plaintiff, and damages assessed against the de- 
 fendants jointly by direction of the court, the defendant Roselle 
 not appearing. To this the defendant Brock excepted, and objects 
 that Roselle was not a party on trial, and stood as though she had 
 never been a party to the action, and that he was prejudiced by 
 bringing thus prominently before the jury that she had admitted 
 her guilt, as the jury would be likely to think that as she was guilty 
 he was also, as they joined in the treatment complained of. But 
 here was no error, for the judgment against Roselle was interlocu- 
 tory, not final, and therefore she remained a party for the purpose 
 of assessing damages; and though she was defaulted and Brock 
 found guilty, yet the final judgment was to be joint, for they were 
 declared against jointly, and there could be but one assessment of 
 damages, and that assessment had to be by the jury that tried the 
 issue between the plaintiff and Brock. Mr. Tidd says that in an 
 action against several, if some let judgment go by default and oth- 
 ers plead to issue, tlie jury that tries the issue assesses damages 
 against all. 2 Tidd's Pr., 3d Am. ed. 894.^° So in Heydon's Case, 
 II Co. (5a), which w^as trespass for assault and battery against 
 
 *^0nly so much of the case as relates to the question of default is printed. 
 The judgment of the court below was reversed upon other grounds. 
 
 ""'In trespass or other action for wrong, against several defendants, the 
 plaintiff may, at any time before final judgment, enter a nolle prosequi as to 
 one defendant and proceed against the others." i Tidd's Practice (8th ed.) 
 736; IValsh V. Bishop, Cro. Car. 239, 243 (1631) ; Lover v. Salkeld, 2 Salk. 
 455 (1699) ; Greeves v. Rolls, 2 Salk. 456 (1703) ; Dale v. Eyre, I Wils. 306 
 (1751). So a verdict and judgment against one or more defendants may be 
 regarded as equivalent to a nol. pros, as to the others, although there is no 
 formal entry to that effect. Cridlan dw. Floyd. 6 Serg. & R. (Pa.) 412 (1821) ; 
 Breidenthal v. McKenna, 14 PaT^t. 160 (1850 ) ; Davis v. Taylor, 41 III. 
 40^(1866) ; St. Louis, &c., k. Co. V. Smith, 43 111. 176 (1867) ; McDonald v. 
 Judson, 97 III. App. 414 (1900) ; Lynch v. Chicago, 152 III. App. 160 (1909)- 
 
 Generally, there is no contribution between tort feasors ; one may be sued 
 severally or any or all together, and where more than one is sued a verdict 
 pr judgment may be rendered for or against any or all. Sparrow v. Bromagc,
 
 c;26 Jl'DCMF.XT 
 
 tlircc, two plonilcd to issue and tried separately, and damages in 
 different anioinits assessed. One let judgment go by default, and a 
 writ of inquiry of damages was awarded on the roll but not issued. 
 Thereupon a great question was moved, and depended for divers 
 terms, how, and against whom, and for what amount, judgment 
 should be entered; and at last, on consideration had of the prece- 
 dents and the books, jud.gment was entered against all for the sum 
 first assessed, and that judgment was affirmed on error. So in i 
 Saund. 207a, note (2), it is said that where several are jointly 
 charged in an action of trespass and plead jointly, or sever in their 
 pleas, or one lets judgment go by default, and the jury assesses sev- 
 eral damages, the verdict is wrong and the judgment erroneous. But 
 that the plaintiff may cure the verdict by entering a nol. pros, as to all 
 the defendants but one, and taking judgment against him only. 
 So in Bohun v. Taylor, 6 Cow. 313, it is said that where there is but 
 one trespass, and "all are found guilty of the whole, the damages 
 must be entire, though the defendants sever, and one lets judgments 
 go by default. And in Gcrr'ish V. Cnmm'mgs, 4 Cush. 391, it is said 
 that in an action of trover there can be but one assessment of dam- 
 ages; and though one defendant is defaulted and the other found 
 guilty, yet there must be a joint judgment, and that the verdict, 
 which is to fix the amount of damages, fixes it as well for the party 
 defaulted as for the party that pleaded.^^ 
 
 83 Conn. 27, 74 Atl. 1070 (1910) ; Jansen v. Varmim, 89 111. 100 (1878); 
 Vicths v. Skinner, 47 111. App. 325 (1892) ; Hozvard v. Dayton Co., 94 Ga. 416, 
 20 S. E. 336 (1894) ; Peacock v. F caster, 51 Fla. 260, 40 So. 74 (1906) ; Love- 
 lace V. Miller, 150 Ala. 422, 43 So. 734 (1907) ; Tan::er v. Breen, 131 App. 
 Div. 654, 116 N. Y. S. no (1909) ; Reid v. Miller, 205 Mass. 80, 91 N. E. 
 223 (1910); Pecaro v. Halberg, 246 111. 95, 92 N. E. 600 (1910); Winn v. 
 Kansas City B. R. Co., 245 Mo. 406, 151 S. W. 98 (1912) ; Bochm v. General 
 E. Co., 179 Mo. App. 663, 162 S. W. 723 (1914)- But in Pennsylvania the 
 practice is that where the declaration is for a joint tort and the evidence 
 fails to show joint action by the defendants, the plaintiff must amend, oth- 
 erwise there will be a variance. Weist v. Traction Co., 200 Pa. 148, 49_Atb 891 
 ( 1901 ) ; Demfsev v. Devers . A?', Pa- Sup er^Lt^ 193 Ci9io; - St^Tinqiiisl v. 
 Hodges, 248 111. 491, 94 ^. E. 94 (i9ii)"T~ ; "" " „, ^ , „ , 
 
 "Accord: Bostwick v. Lewis, I Day (Conn.) 33 (1802) ] IVakelyjLJmd, 
 6 Binn. (Pa.) 316 (1814), semble; Bohun v. Taylor, 6 Cow. (JST Y.) 313 
 TTS26) ; Gerrish v. Ciimmings, s8 Mass. (4 Cush.) 391 (1849) ; Turner v. Mc- 
 Carthy, 4 E. D. Sm. (N. Y.) 247 (1885) ; O'Shca v. Kirker, 8 Abb. Pr. 69, 
 17 N. Y. Super. Ct. 120 (1859) ; O'Shea v. Kirker, 4 Bosw. 120 (1859).. Where 
 a joint tort is proved the jury can not award several damages against the 
 individual defendants. Rodney v. Strode, 1 Carth. 19 (1685) ; Sabin v. Long, 
 I Wils. 30 (1743) ; Hill v. Goodchild, 5 Burr. 2790 (1771) ; Mitchell v. Mil- 
 hank, 6 T. R. 199 (1795) ; Halsey v. Woodruff, 9 Pick. (Mass.) 555 (1830) ; 
 Gardner v. Field, 67 Mass. 151 (1854) ; Beal v. Finch, li N. Y. 128, 9 How. 
 Pr. 385 (1854); Greenlands Ltd. v. Wilwshurst, L. R. 3 K. B. 507 (1913) ; 
 Foy V. Barry, 159 App. Div. 749, I44 N. Y. S. 971 (1913)- But see Broivn v. 
 Thaver, 212 Mass 392, 99 N. E. 237 (1912). 
 
 Cressy v. Webb, King's Bench 1744, 2 Strange 1222. Webb only pleaded 
 to issue, the other defendants let judgment go by default. And it came on at 
 Guildhall to try the issue, and also to assess the damages as to the others. On 
 the trial Webb was acquitted, and a doubt arose whether the plaintiff could 
 go on ; but the chief justice thought he might proceed, and he did so. Accord : 
 Jones v. Harris, 2 Str. 1108 (1738) ; Legrand v. Page, 7 T. B. Mon. (Ky.) 
 401 (1828). But otherwise if the defense "destroys the cause of action as 
 to all the defendants." Biggs v. Greenfield, 8 Mod. 217, 2 Ld. Raym 1372
 
 KARON V. EISEN 527 
 
 KARON ET AL. V. EISEN et al. 
 
 Supreme Court of New York, Appellate Term, 191 i 
 
 2 N. y. Civ. Proc. (iV. S.) 197" 
 
 Appeal from an order of the City Court of New York entered 
 at special term denying a motion made by the defendant Samuel 
 Wiesenfeld to vacate a judgment by default entered against him. 
 
 Page, J. : The complaint in this action alleges, so far as material 
 to this appeal, that Eisen and Einhorn made their promissory note 
 payable to the plaintiffs for the sum of $803.25 ; that thereafter, and 
 before delivery thereof to the plaintiffs, and in order to lend credit 
 to said note, and to induce the plaintiffs to accept the same, for a 
 valuable consideration, the firm of B. Wiesenfeld & Co., composed 
 of the defendants Benjamin Wiesenfeld, Samuel Wiesenfeld, and 
 Max Spalter, duly indorsed said note, and the same was, with the in- 
 dorsement thereon, duly delivered to the plaintiffs, for value re- 
 ceived, and the plaintiffs thereby became the lawful owners and 
 holders thereof, for value, and in due course. Due presentation, 
 demand at maturity, non-payment, and notice thereof were also duly 
 alleged. Benjamin Wiesenfeld and Max Spalter answered. Samuel 
 Wiesenfeld did not answer. Therefore a judgment for the full 
 amount demanded in the complaint was entered against him. Motion 
 was made to vacate the judgment, and was denied. 
 
 The liability of the members of the firm of B. Wiesenfeld & 
 Co. was a joint liability, and the plaintiffs could not take judgment 
 against one joint defendant until the issue raised by the other joint 
 defendants has been disposed of. Smith v. Weston, 81 Hun 87, 89; 
 30 N. Y. Supp. 649.^^ It is only where the liability is several that 
 judgment can be taken against a defendant upon his default, in a 
 case where some of the defendants have answered, and then the 
 action must be severed. Code Civ. Proc. sections 456, 1205. In this 
 case the action has not been and could not be severed. Therefore, 
 if plaintiff was successful on the trial of the issue raised, a judg- 
 ment would be entered against all of the defendants named, who are 
 jointly indebted, and the appellant would have two judgments 
 against him on the same cause of action, and in the same action. 
 The clerk had no power or authority to enter the judgment. There- 
 fore it should have been vacated.^* 
 
 Order reversed. 
 
 (1723) ; Panghurn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423 (1914) ; 
 and see Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649 (1901). 
 
 ^"S. C. 128 N. Y. S. 137. Part of the opinion is omitted. 
 
 "Accord: Catlin v. Billings, 13 How. Pr. (N. Y.) 511 (1857) ; Warner v. 
 Ford, 17 How. Pr. (N. Y.) S4 (1858); Anckcr v. Adams, 23 Ohio St. 543 
 (1873) ; Smith V. Weston, 81 Hun 87, 30 N. Y. S. 649 (1894) ; Oshnn v. Bar- 
 tram, 8 O. C. D. 259, IS Ohio C. Ct. 224 (1897) ; Bauer v. Hawes, 115 App. 
 Div. 492, loi N. Y. S. 455 (1906). See Pomeroy's Civil Remedies (3d ed.), 
 § 299 et seq. 
 
 "Compare Stedeker v. Bernard, 102 N. Y. 327, 6 N. E. 791 (1886). By. 
 § 454 of the New York Code of Civil Procedure two or more persons sev- 
 erally liable upon the same instrument may be joined as defendants. By § 456,
 
 c;j8 JUDGMEXT 
 
 SIR FRAXCTS GOODWIN r. WKLSIIK & OVER 
 
 Court of King's Bench, 1609 
 
 YfhcrtoK isi"' 
 
 Sir Francis brought several actions of trespass against the two 
 defendants for goods taken, and declared to damages. The attor- 
 ney for the defendants pleaded von sum informatus; and thereupon 
 iudgment is given severally for the plaintiff and writs of inquiry 
 of damages issued, and were returned. And it was moved that the 
 writs should not be filed, because the plaintiff' at tlie time of the 
 inquiry did not prove that the goods belonged to him, but only 
 proved tlie value of the goods; for by Serjeant Nichols there is a 
 dift'erence between an action confessed and non sum informatus; 
 for in the first case the property is likewise confessed to be in the 
 plaintiff", but it is not so in the other case; for this judgment passes 
 without the defendant's privity and only for want of pleading, as 
 in the case of niliil d'lclt. But, per tot' Cur', it is all one, and the 
 plaintiff' need not prove property in either of the cases, and the rea- 
 son is, because the writ commands only the value to be inquired 
 and no more, and that alone is the charge of the jury. And, by all 
 the justices, they themselves as judges, if they would, might in 
 these cases assess damages, without issuing any writ; for it issues 
 onlv quia nescitur quae damna; but if they will trouble themselves 
 v.ith the assessment of damages they may.^'^ But it is otherwise in 
 the case of non cul. pleaded, for there the trespass is denied, which' 
 must be tried by the jury, and there the property and the value also 
 ought to be proved. Nota also, in the first case, the judgment is, 
 
 where the summons is aprainst persons "alleped to be severally liable," judp- 
 ment mav be taken against one or more where plaintiff would be entitled to 
 judgment if the action was against him or them alone. When judgment is 
 so taken the action is served and plaintiff proceeds against the other defend- 
 ants. § 1205 provides: "Where the action is against two or more defendants, 
 and a several judgment is proper, the court ma}% in its discretion, render 
 judgment, or require the plaintiff to take judgment, against one or more 
 defendants, and direct that the action be severed and proceed against the 
 others, as the only defendants therein." Sec Pomeroy's Civil Remedies (3d 
 ed.), § 403; Bank of Gcncssee v. Field, IQ Wend. (N. Y.) 643 (1839); 
 Parker v. Jackson, 16 Barb. (N. Y.) 33 (1852) ; Pruyn v. Black. 21 N. Y. 
 300 (i860) ; Mcintosh v. Ensign, 28 N. Y. 169 (1863) ; Stimson v. Van Pelt, 
 66 Barb. (N. Y.) 151 (1868); Fielden v. Lahens, 6 Abb. Pr. (N. S.) 341 
 (1867); Weidman v. Sibley, 16 App. Div. 616, 46 N. Y. S. 1102 (1897); 
 Lau'ton v. Partridge, in App. Div. 8, 97 N. Y. S. 516 (1906); Draper v. 
 Interborough Transit Co., 124 App. Div. 357. 108 N. Y. S. 691 (1908) ; Sayre 
 V. Progressive C. Co., 159 App. Div. (N. Y.) 799 (1913); I-yon v. Page, 21 
 Mo. 104 (1855) ; Key v. Robinson, 8 Ind. 368 (1856) ; People v. Fnsbie, 18 
 Cal. 402 (1861); Shain v. Forbes, 82 Cal. 577, 23 Pac. 198 (1890); Bailey 
 Loan Co. v. Hall, no Cal. 490, 42 Pac. 962 (1895) ; Cole v. Roeblmg Const. 
 Co., 156 Cal. 443. 105 Pac. 255 (1909)- 
 
 "S. C. Cro. Jac. 220; i Brownl. 214. 
 
 "Bruce v. Raivlings, 3 Wils. 61 (1770) ; Longman v. Fenn, i H. Bl. 541 
 (1791) ; rFflfH»i_\L-£/n7/i/?y/^ Whart. (PiU-goc) (1837) ; BeUvJBdl j) Watts 
 47(_l83St). See, zho, J arvis v. Blanchard, 6 Mass. 4 (i8nJ7
 
 HOOKIN Z: QUILTER $29 
 
 quod recuperet querens. If then upon a writ of inquiry of damages 
 the plaintiff should be obliged to prove property and fail of it, that 
 would go in avoidance of the first judgment, which can not be. 
 Yelverton of counsel with the plaintiff.^^ 
 
 HOOKIN V. QUILTER 
 
 Court of King's Bench, 1747 
 
 2 Str. 1271=^ 
 
 There were three counts in the declaration as executrix, and a 
 fourth was for use and occupation of the plaintiff's house. Judg- 
 ment by default in common bench and reversed on error. 
 
 For per curiam there being no verdict, we can presume nothing, 
 but that the fourth count is, as it appears, in her own right, which 
 can not be joined with the others, and the damages are intire.^^ 
 
 ^'Letting judgment go by default is an admission of the cause of action. 
 East India^Co. v. Glover, i Str. 612 (1725) ; Bcvis v. Lindsell, 2 Str. 1149 
 (1740); Anonymoiis, 3 Wils. 155 (1771) ; Snovuden v. Thomas, 2 Wm. Bl. 
 748 (1771); Thellnsson v. Fletcher, i Dougl. 315 (1780); Leib v. Bolton, x 
 Dall. (Pa.) 82, I L. ed. 46 (1784) ; Greene v. Hearne, 3 T. R. 301 (1789) ; 
 Shepherd v. Charter, 4 T. R. 275 (1791) ; De Gaillon v. L'Aigle, i B. & P. 
 368 (1799) ; Kingston v. Haychurch, I Chittv R. 644 (1819) ; Bates v. Loomis, 
 5 Wend. (N. Y.) 134 (1830) ; Forter v. Smith, 10 Wend. (N. Y.) 2>77 (1833) ; 
 Carter v. Hunter, 3 Ala. 30 (1841) ;; In re Toppan, 24 N. H. 43 (1851) ; 
 Froitst V. Briiton, 15 Mo. 619 (1852) ; U'illson v. IVillson, 25 N. H. 229, 57 
 Am. Dec. 320 (1852) ; Clark v. Compton, 15 Tex. 32 (1855) -.Cook v. Skelton, 
 20 111. 107, 71 Am. Dec. 250 (1858) ; Hunt v. San Francisco, 1 1 Cal. 250 
 (1858) ; Whittey v. Douge, 9 Iowa 597 (1859) ; Creamer v. Dikeman, 39 N. J. 
 L. 195 (1877); Billiard v. Sherwood, 85 N. Y. 253 (1881) ; Banks v. Gay 
 Mfg. Co., 108 N. Car. 282, 12 S. E. 741 (1891); Hellen v. Steinwender, 28 
 Fla. 191, ID So. 207 (1891) ; Martin v. New York, &c., R. Co., 62 Conn. 331, 
 25 Atl. 239 (1892) ; Grinnell v. Bebb, 126 Mich. 137, 85 N. W. 467 (iQoi) ; 
 Lenney v. Finlcy, 118 Ga. 427, 45 S. E. 317 (1903) ; Parratt v. Hartsuff, 75 
 Nebr. 706, 106 N. W. 966 (1906) ; Wolf v. Powers, 144 111. App. 168 (1908) ; 
 Brown Con. Co. v. Mac Arthur B. Co., 236 Mo. 41, 139 S. W. 104 (1911) ; 
 Buck V. Citizens C. M. Co., 254 111. 198, 98 N. E. 228 (1912). Where the 
 claim is unliquidated the damages must be proved. Reigne v. Dewees, 2 Bay 
 (S. Car.) 405 (1802) ; William v. Cooper, 3 Dowl. 204 (1834) ; Webb v. Webb, 
 16 Vt. 636 (1844) ; Rose v. Gallup, 2,2> Conn. 338 (1866) ; Mississippi R. Co. 
 V. Green, 9 Heisk. (Tenn.) 588 (1872) ; Ditnlap v. Horton, 49 Ala. 412 (1873). 
 Otherwise where the claim is liquidated, Holdipp v. Otway, 2 Saund. 106 
 (1669) ; Arden v. Connell, 5 B. & Aid. 885 (1822) ; (T Nenl v. O'Neal. 4 Watts. 
 &_S^PaJ. 130 (1842) ; Mass. M. L. Co. v. Kellogg, 82 111. 614 (1876) ; Hart- 
 man v. Farrior, 95 N. Car. 177 (1886); St. Louis, &c., Co. v. Zumwalt, 31 
 Okla. 159, 120 Pac. 640 (1912). And see as to assessment of damages, 23 Cyc. 
 760; 6 Enc. PI. &Pr. 127. 
 
 '^S. C. Hooker v. Quilter, l Wils. 171, where it appears that the action 
 was assumpsit, the first three counts being for use and occupation of a house 
 of plaintiff's testator. Judgment was by nihil dicit, a writ of inquiry issued 
 and entire damages were assessed. 
 
 ^'Smith v. Carley, 8 Ind. 451 (1856). Assumpsit on a promissory note, 
 the declaration failed to aver that defendant was the maker of the note and 
 that the note was unpaid. Judgment by default reversed. Per curiam: "As 
 34 — Civ. Proc.
 
 530 jriH-.Mr.NT 
 
 ArcKLROY z: Rl'.ADING 
 Court of Common F leas, rniLAP ELPHiA , j[87o 
 
 7 PItila. (Pa.) 433 
 
 Sur rule to strike off nonsuit. Sitr rule to strike off narr. 
 
 Ludlow, J.: Judj:r"icnts of nonsuit and non pros, are, in modern 
 practice, different ju(li::mcnts ; the former involves the nonappear- 
 ance on call of the plaintiff on the trial, or such a defect in point 
 of law, or inadequacy of proof, as renders it either impolitic or 
 impossible for the plaintiff to proceed with the suit; a judgment 
 of non pros., especially under our rule of court, which permits a 
 defendant to enter such a judgment if a narr. is not filed within 
 a year, is a judgment by default for laches. Under our rule a non 
 pros, may be entered by order of an attorney in the office of the 
 clerk of the court, while a nonsuit can, only at the trial, be suffered 
 by the plaintiff, or be ordered by the court. 
 
 In this case a nonsuit was by mistake ordered by defendant's 
 attorney, and, as the parties insist upon their legal rights, this judg- 
 ment must be stricken from the record ; and then nothing will justify 
 us in striking oft* the narr., for a plaintiff may, at any time, file his 
 narr., if a 7ion pros, has not been ordered according to the rule. 
 
 Rule to strike off nonsuit is made absolute. Rule to strike off 
 narr. is discharged.^'* 
 
 a general rule, a default, re.crularly taken, admits the cause of action ; but, then, 
 there must be a declaration or complaint containing such a statement of facts 
 as will, when admitted, in point of law authorize a judgment against the de- 
 fendant." 
 
 Accord: Collins v. Gibbs, 2 Burr. 899 (i7S9) ; Boivdell v. Parsons, 10 East. 
 359 (1808) ; Randolph v. Cook, 2 Port. (Ala.) 286 (1835) ; Huntress v. Effing- 
 )tam, 17 N. H. 584 (1845) ; Hall v. Jackson, 3 Tex. 305 (1848) ; Winston v. 
 Miller, 20 Miss. 550 (18.10) ; Hollis v. Richardson, 13 Gray (Mass.) 392 (1859) ; 
 Griffith V. Clarke, 18 Aid. 4-,7 (1862); Comm. v. Hoffman, 74 Pa. St. 105 
 (1873) ; McAllister v. Kuhn, 96 U. S. 87, 24 L. ed. 615 (1877) ; Argall v. Pitts, 
 78 N. Y. 239 (1879) ; Cragin v. Lovell, 109 U. S. IQ4, 27 L. ed. 903 (1883) ; Har- 
 vion V. Ashmcad, 60 Cal. 439 (18S2) ; Chaffin v. McFaddcn, 41 Ark. 42 (1883) ; 
 Johnson v. I\Iantz, 69 Iowa 710, 27 N. W. 467 (1886) ; Old v. Mohler, 122 Ind. 
 594, 23 N. E. 967 (1S89) ; Bond v. Djiliith Milling Co., 55 Minn. 53, 56 N. W. 
 463 CiSq^") Chestnut Street Bank v. £//a- 161 Pa. St. 24L 28 Atl. 1082 (1894) ; 
 .Shields v. Clement, 12 'Alisc. 506, 33 ^- ^'- i^- ^7^^. 67 N. Y. St. 376 (1895) ; 
 Schiieler v. Mueller, 193 111. 402, 61 N. E. 1044 (iQoi) ; Gillian v. Gillian, 65 
 S. Car. 129, 43 S. E. 386 (1902) ; Forsyth y. Stumho ngh, t^ Pn D R. 339 
 (1903) ; U'erten v. Koosa, 169 Ala. 25s, 53 bo. 98 (1910) ; Gadsden v. Home 
 Fertilizer Co., 89 S. Car. 483, 72 S. E. 15 (1911) ; Davies Exr. v. Louisville, 159 
 Ky. 252, 166 S. \V. 969 (1914). In assumpsit for goods sold and delivered 
 after judgment for want of a plea, judgment will not be struck off because 
 the statement omitted to lay a venue. American Mfg. Co. v. S . Morgan 
 SmjSiIi.C o-, 25 Pa Super. Ct. 176 (100 4). 
 
 Where on default damages were assessed on all the counts and one was 
 bad on general demurrer, judgment was reversed. Dryden v. Dryden, 9 Pick. 
 (Mass.) 546 (1830). Contra: Swearingen v. Bank, 13 Ohio, 200 (1844) ; Hunt 
 V. San Francisco, II Cal. 250 (1858). 
 
 "Judgment of non prosequitur, or non pros, is a final judgment for costs 
 only, signed by the defendant, whenever the plaintiff, in any stage of the 
 cause, neglects to prosecute his suit, or part of it, within the time limited by
 
 BRONSON V. SCIIULTEN 531 
 
 SECTION 4. AMENDMENT OF JUDGMENTS 
 
 BRONSON V. SCHULTEN 
 
 Supreme Court of United States, i88i 
 
 104 U. S. 410 
 
 Error to the Circuit Court of the United States for the Southern 
 District of New York. 
 
 The plaintiffs sued Bronson, as collector of customs for the 
 port of New York, to recover duties, paid under protest, in excess 
 of the amount authorized by law upon seventy-four entries of 
 goods at the custom house. On the trial there was a verdict for the 
 plaintiffs fixing the precise error under which the excessive duty had 
 been exacted and leaving to a referee the determination of the 
 actual amount due. Upon the report of the referee judgment was 
 entered August 5, i860, and the amount paid to and accepted by 
 the plaintiffs. It subsequently appeared that in thirty-four of the 
 entries, for which claims were made, the sums which should have 
 been allowed the plaintiffs were omitted in the adjustment. On Jan- 
 uary 26, 1877, the circuit court made an order that the judgment 
 be vacated and the assessment of damages under the verdict be 
 referred to a referee. On March 10, 1877, the referee reported that 
 there was due plaintiffs, in addition to what had been paid under 
 the judgment set aside, the sum of $1,205.90, on which interest was 
 allowed to the amount of $2,017.21. For tiiese sums judgment was 
 rendered. To reverse this judgment the present writ of error is 
 brought.^^ 
 
 Miller, J. : If there was no question of lapse of time, or of tlie 
 power of the court over its own judgments after the term at which 
 
 the rules of the court for that purpose. 2 Archbold's Practice (7 ed.) 1052; 
 I Tidd's Practice (9th ed.) 458; 3 Bl. Comm. 296; Powell v. White, I Dougl. 
 168 (1779) ; Thurston v. Murray, 3, Binn. (Pa.) 4i.'? (1811) ; Howes v. Austin, 
 35 111. 396 (1864); Commonwealth v. Casey, 94 Mass. 214 (1866), at p. 218; 
 Walton V. Lcfever, 17 Lane. L. R. 203 (1900) ; Wolf v. Stillman Co., 79 N. J. 
 L. 284, 75 Atl. 436 (1910). In some states nan pros, and nonsuit have been 
 used as convertible terms. Partlozv v. Elliott, Meigs (Tenn.) 547 (1838); 
 Buena Vista Co. v. Parrish, 34 W. Va. 652, 12 S. E. 817 (1891). 
 
 In most jurisdictions the term non pros, is no longer employed, the modern 
 equivalent being judgment of dismissal for want of prosecution. Whistler v. 
 Hancock, L. R. 3 Q. B. 83 (1878) ; Script Phonography Co. v. Gregg, 59 L. J. 
 Ch. 406 (1890); Davcy v. Bentinck, L. R. (1893), i Q. B. 185; Rules of 
 Supreme Court (England), order 27, rule i; New York Code Civ. Proc., 
 § 822; Gross v. Clark, 87 N. Y. 272, i Civ. Proc. 464 (1881) ; Herb v. Metro- 
 politan Hospital, 80 N. Y. App. Div. 145, 80 N. Y. S. 552, 12 N. Y. Ann. Cas. 
 415 (1903) ; Finn v. Scottish Union, &c. Ins. Co., 12>7 App. Div. 60, 122 N. 
 Y. S. Z7 O910) ; California Code C'w. Proc. § 583; Mowry v. Weiscnborn, 
 137 Cal. no, 69 Pac. 971 (1902) ; People v. Renter, 88 111. App. 586 (1899) ; 
 Anderson v. Broward, 45 Fla. 160, 34 So. 897 (1903) ; Colorado Eastern R. Co. 
 V. Union Pac. R. Co., 94 Fed. 312 (1899). 
 
 "The statement of facts is abridged from the opinion of the court, part 
 of which is omitted.
 
 53- J^' 
 
 HGMKXT 
 
 they arc rciulcroU, and if there were a hill m chancery to set aside 
 this iiulpnent on tlie ground of mistake, it is clear that no reUef 
 could be granted, because of the negligence, carelessness, and in- 
 attention and laches of the plaintilYs, or of their attorney, in the 
 matter. 
 
 Docs tJie power of tlic court over its own judgments, exercised 
 in a summary manner on motion, after the term at which it was 
 rendered, extend beyond this? 
 
 In tliis country all courts have terms and vacations. The time 
 of tlie commencement of every term, if there be half a dozen a 
 year, is fixed by statute, and the end of it by the final adjournment 
 of the court for that term. This is the case with regard to all the 
 courts of the United States, and if there be exceptions in the state 
 courts, they are unimportant. It is a general rule of the law that 
 all the judgments, decrees, or other orders of the courts, however 
 conclusive in tlieir character, are under the control of the court 
 which pronounces them during the term at which they are rendered 
 or entered of record, and they may then be set aside, vacated, modi- 
 fied, or annulled by that court.*'- 
 
 But it is a rule equally well established, that after the term has 
 ended all final judgments and decrees of the court pass beyond its 
 control, unless steps be taken during that term, by motion or other- 
 wise, to set aside, modify, or correct them; and if error exists, they 
 can only be corrected by such proceeding by a w-rit of error or 
 appeal as may be allowed in a court which, by law, can review the 
 decision. So strongly has this principle been upheld by this court. 
 
 "^ "During the term wherein any judicial act is done, the record remaineth 
 in the breast of the judges of the court, and in their remembrance, and there- 
 fore, the roll is alterable during that term as the judges shall direct; but when 
 that term is past, then the record is in the roll and admitteth no alteration, 
 averment, or proof to the contrary-." Co. Litt. 260; Y. B. 7 Hen. VI 28; 
 Y. B. 9 Edw. IV 3; Blackamore's Case, 8 Co. 156 (1610) ; A)wnymoiis, 3 Salk. 
 31 (1694) ; Day v. U'ilber, 2 Caines (N. Y.) 258 (1804) ; Ncale v. Caldwell, 
 3 Stew. (.\la.) 134 (1830) ; Frink v. King, 4 111. 144 (1841) ; People v. Mayor 
 of Xew York, 25 Wend. (N. Y.) 252 (1841) ; Huntington v. Finch, 3 Ohio 
 St. 445 (1854); Cooper v. Galhraith, 24 N. J. L. 219 (1853); Robinson v. 
 Hartford Co., 12 Md. 132 (1S58) ; Mason V. Pearson, 118 Mass. 61 (1875) ; 
 King v. Brooks, 72 Pa. St. 363 (187 2) ; Lance vBonn ell, lo j^Pa. St. 46 C1 884) ; 
 Fralcy v. teat her, 40 i\. J. 1^. 429 (1884) ; .'ytate v7 .'iozi^ers, 42 Kans. 312, 
 22 Pac. 425 (1889) ; Ginrich v. Ginrich, 146 Ind. 227, 45 N. E. loi (1896); 
 Flickiuger v. Omaha Bridge & R. Co., 98 Iowa 358, 67 N. W. 372 (1869) ; Anil 
 V. St. Louis Trust Co., 149 Mo. I, 50 S. W. 289 (1898) ; In re Hcrnd on Bpr- 
 onqh. IQ Pa. Super. Ct. 127 (iQo:^ ) ; Bottineau Land &c. Co. v. Hintze,''iSo 
 Iowa 646, 125 N. W. 842 (1911) ; Kansas City v. Wocrishoeffcr, 249 Mo. i, 155 
 S. W. 779 (1912) ; Carey v. Vickers, 38 Okla. 643, 134 Pac. 851 (1913). 
 
 The am.endment of judgments and orders and the time within which 
 such power may be exercised is, in some jurisdictions, regulated by statute or 
 rule of court. See N. Y. Code Civ. Proc. §§ 724, 1282, 1283. In re Henderson, 
 IS7 X- Y. 423, 52 N. E. 183 (1898) ; Cooper v. Cooper, 57 App. Div. (N. Y.) 
 595 (1900); Smith V. S7nith, 121 App. Div. 480, 106 N. Y. S. 137 (1907); 
 Heinitz v. Darmstadt, 140 App. Div. 252, 125 N. Y. S. 109 (1910) ; Cal. Code 
 Civ. Proc, §§ 473, 663; Mississippi Code (1906), § 1016; Graves v. Fultoti, 7 
 How. (Miss.) 592 (1843). For England, see Rules of Supreme Court, order 
 xxviii, rule ii ; In re Suffied, L. R. 20 Q. B. Div. 693 (1888) ; Bright v. Sellar, 
 L. R. (1904), I IC B. 6; Midr v. Jenks L. R. (1913), 2 K. B. 412.
 
 BRONSON V. SCIIULTEN 533 
 
 that while reaHzing that tliere is no court which can review its 
 decisions, it has invariably refused all applications for rehearing 
 made after the adjournment of the court for the term at which the 
 judgment was rendered. And tliis is placed upon the ground that 
 the case has passed beyond the control of the court. Brooks v. 
 Railroad Company, 102 U. S. 107; Public Schools v. Walker, 9 
 Wall. 603 ; Brozvn v. Aspden, 14 How. 25 ; Cameron v. McRoberts, 3 
 Wheat. 591; Sihhald v. United States, 12 Pet. 488; United States 
 V. The Brig Glamorgan, 2 Curt. C. C. 236 ; Bradford v. Patterson, 
 I A. K. Marsh. (Ky.) 464; Ballard v. Davis, 3 J. J. Marsh. (Ky.) 
 
 656. . . . 
 
 But to this general rule an exception has crept into practice m 
 a large number of the state courts in a class of cases not well de- 
 fined, and about which and about the limit of this exception these 
 courts are much at variance. An attempt to reconcile them would 
 be entirely futile. The exception, however, has its foundation in 
 the English writ of error coram vobis, a writ which was allowed 
 to bring before the same court in which the error was committed 
 some matter of fact which had escaped attention, and which was 
 material in the proceeding. These were limited generally to the 
 facts that one of the parties to the judgment had died before it was 
 rendered, or was an infant and no guardian had appeared or been 
 appointed, or was a feme covert and tlie like, or error in the process 
 through default of the clerk.^^ 
 
 In Rolle's Abridgment, page 749, it is said that if the error be in 
 the judgment itself, a writ of error does not lie in the same, but 
 in another and superior court. 
 
 In Pickett's Heirs v. Legerzvood, 7 Pet. 144, this court said 
 that the same end sought by that writ is now in practice generally 
 attained by motion, sustained, if the court require it, by affidavits; 
 and it was added, this latter mode had so far superseded the former 
 in the British practice, that Blackstone did not even notice the writ 
 as a remedy. 
 
 It is quite clear upon the examination of many cases of the 
 exercise of this writ of error coram vobis, found in the reported 
 cases in this country, and as defined in the case in this court above 
 mentioned, and in England, that it does not reach to facts sub- 
 mitted to a jury, or found by a referee, or by the court sitting to 
 try the issues ; and therefore it does not include the present case. 
 
 There has grown up, however, in the courts of law a tendency 
 to apply to this control over their own judgments some of the prin- 
 
 •^i Archbold's Practice (7th ed.) 389; Lcdgcrwood v. Pickett, i McLean, 
 143, Fed. Cas. No. 8175 (1831) ; Smith v. Kingslcy, 19 Wend. (N. Y.) 620 
 (1838) ; Hurst v . Fisher, l Watts & S. (Pa.) 438 (1841) iSt^phensv. Stephens. 
 I Phila. TPa.) 108^ 7 Leg, int. 183 (18.S0) ; McKindley v. Buck, 43 111. 488 
 TTH57) ; Mississippi & Tcnn. R. Co. v. Wynne, 42 Miss. 315 (1868); Mc- 
 Lemore v. Durivage, 92 Tenn. 482, 22 S. W. 207 (1893) ; Brady v. Washington 
 Ins. Co., 82 111. App. 380 (i8q8) ; V^^vr*^^^'^ v Virtue, IX Pa. Super. Ct. 10^ 
 (1900) ; Consolidated Coal Co. v. Oeltjen, 189 111. 85, 59 N. E. 600 (1901) ; 
 Dobbs y. State, 63 Kans. 321, 65 Pac. 658 (1901) ; Hadley v. Bernero, 103 Mo. 
 App. 549, 78 S. W. 64 (1903) ; Madden v. Ferguson, 182 111. App. 2io (1913) ; 
 Jeude V. Sims, 258 Mo. 26, 166 S. W. 1048 (1914).
 
 534 JUDGMENT 
 
 clplcs of tlio courts; of c(iuity in cases which £:[o a liltlc furtlicr in 
 aciniinistcrini::^ sunininrv rehcf than tlic old fashioned writ of error 
 coram z'obis did. This practice has been fonnded in the courts of 
 many of the states on statutes which conferred a prescribed and 
 limited control over the judgment of a court after the cxiViration 
 of the term at which it was rendered. In other cases the summary 
 remedy by motion has been granted as founded in the inherent 
 power of the court over its own judgments, and to avoid the ex- 
 pense and delay of a formal suit in chancery. It can easily be seen 
 how this practice is justified in courts of the state where a system 
 has been adopted which amalgamates the equitable and common law 
 jurisdiction in one form of action, as most of the rules of procedure 
 do. 
 
 It is a profitless task to follow the research of counsel for the 
 defendants in error through the numerous decisions of the state 
 court cited by them on this point in support of the action of the 
 circuit court. The cases from the New York courts, which go 
 farthest in that direction, arc largely founded on the statute of that 
 state,^* and we are of opinion that on this point neither the statute 
 of that state nor the decisions of its courts are binding on the courts 
 of the United States held there. 
 
 The question relates to the power of the courts and not to the 
 mode of procedure. It is whether there exists in the court the 
 authority to set aside, vacate, and modify its final judgments after 
 the term at which they were rendered ; and this authority can neither 
 be conferred upon nor withheld from the courts of the United States 
 by the statutes of a state or the practice of its courts. 
 
 We are also of opinion that the general current of authority in 
 the courts of this country fixes the line beyond which they can not 
 go in setting aside their final judgments and decrees, on motion 
 made after the term at w^hich they were rendered, far within tlie 
 case made out here. If it is an equitable power supposed to be here 
 exercised, we have shown that a court of equity, on the most formal 
 proceeding, taken in due time, could not, according to its established 
 principles, have granted the relief which was given in this case. 
 
 It is also one of the principles of equity most frequently relied 
 upon that the party seeking relief in a case like this must use due 
 diligence in asserting his rights, and that negligence and laches in 
 that regard are equally effectual bars to relief.*^^ 
 
 As we have already seen, nothing hindered the plaintififs from 
 discovering the mistake of which they complain for seventeen years, 
 but the most careless inattention to the proceeding in which they 
 had claimed these rights and had them adjudicated. 
 
 **Montgomery v. Ellis, 6 How. Prac. (N. Y.) 326 (1851); Wetmore v. 
 Law, 34 Barb. (N. Y.) 515, 22 How. Prac. 130 (i860) ; In re Buffalo, 78 N. Y. 
 362 (1879) ; Furman V. Furman, 153 N. Y. 30Q, 47 N. E. 577, 60 Am. St. 629 
 (1897) ; IVeston v. Citiccn's Nat. Bank, 88 App. Div. 330, 84 N. Y. S. 743 
 (1903), and note 62 supra. 
 
 ^McBride v. Little, 115 Mass. 308 (1874) ; Cairo &c. R. Co. v. Titus, 27 
 N. J. Eq. 102 (1876) ; Perkins v. St. Louis &c. R. Co., 143 Mo. 513, 45 S. W. 
 260 (1897) ; Gardener v. Van Alstyne, 22 App. Div. 579, 48 N. Y. S. 114 
 (1S97J ; Heller v. Dyerville Mfg. Co., lit Cal. 127, 47 Pac. 1016 (1897).
 
 BRONSON V. SCIIULTEN 535 
 
 There was here an acquiescence for that length of time in the 
 correctness of a judgment which had been paid to them, when tlie 
 error, if any existed, only needed a comparison of their own bill of 
 particulars with the reports of the referee, to be seen, or at least to 
 be suggested. Having been negligent originally, and having slept on 
 their rights for many years, they show no right, under any sound 
 practice of the control of courts over their own judgments, to have 
 •^hat in this case set aside. 
 
 Judgment reversed.^* 
 
 ^'Accord: Sailer v. Evans, 4 Burr. 1984 (1766) ; Curr'ie v. Henry, 3 Johns. 
 (N. Y.) 140 (1808) ; Killpatrick V. Rose, 9 Johns. (N. Y.) 78 (1812) ; Usher 
 
 V bansey, 4 M. & S. 94 (1815) ; Jiidson v. Blanchard, 3 Conn. 579 (1821) : 
 Catlin V. Robinson, 2 Watts (Pa.) 37 3 (1834) ; Darling v. Giirney, 2 Dowl. 
 
 loi {1^33) ; Jackson v. Ashton, 10 Pet. (U. S.) 480, 19 L. ed. 502 (1836) ; 
 St ephens v. Cou'an, 6 Watts (PaJ . 5" (1837); Alters v. IVhitney, i Story 
 310 Fed Cas. i\o. 137 (1840); Wilkie v. Hall, 15 Conn. 32 (1842) ; Bank of 
 U 'S. V. Moss, 6 How. (U. S.) 31, 12 L. Ed. 331 (1848) ; O'Conncr v. Mullen, 
 II 111. 57 (1S49) ; Vllerv V r\nrh iR Pa. St. TiR dS^il ; Baldzvin v. Kramer. 
 2 Cal 582 (1S52) ; Coiiahran v. Gntchcus, 18 111. 390 (1857) ; State v. Disney, 
 5 Sneed (Tcnn.) 598 (1858) ; Layman v. Grayhill, 14 Ind. 166 (i860) ; Cook v. 
 Wood 24 111. 295 (i860); Commomvealth v. Weymouth, 84 Mass. 144, 79 
 Am Dec '776 (1S61) ; De Castro v. Richardson, 25 Cal. 49 (1864) ; Undcrtt'ood 
 
 V Sledge, 27 Ark. 295 (1871) ; Foster v. Red field, 50 Vt. 285 (1877) ; Fraley v. 
 Feather, 46 N. J. L. 429 (1884) ; Barrcll v. Tilton, 119 U. S. 637, 30 L. ed. 511 
 (1886) • Radclyffe v. Barton, 1^4 Alass. 157, 28 N. E. 148 (1891) ; Wiggins v. 
 Steiner, 103 Ala. 655, 16 So. 8 (1893) ; McGurry v. Wall, 122 Mo. 614, 27 S. W. 
 327 (1894) ; Dcering v. Qiiivey, 26 Ore. 556, 38 Pac. 710 (1895) ; Cornell Um- 
 versitv \. Parkinson, 59 I^ans. 365, 53 Pac. 138 (1898) ; United States v. Fur 
 Clippings. 106 Fed. 161 (1900); Page v. Shields, 102 111. App. 575 (1902); 
 Perkins v. Casileberrv, 119 Ga. 702, 46 S. E. 825 (1903) ; Wet more v. Carrick. 
 205 U S. 141, 51 L. Ed. 74^ (1906) ; Collins v. Hawkins, 77 Ark. loi, 91 S. W. 
 26 (1905) ; Loeser v. Savings Bank, 163 Fed. 212 (1908) ; United States v. 
 New York Cent. R. Co., 164 Fed. 324 (190S) ; Merri field v. Western Cottage 
 Piano, &c. Co., 149 111. App. i (1909) ; 2elig v. Bine Point Oyster Co., 61 Ore. 
 535 113 Pac. 852 (1911) ; Philip Carey Co. v. Vickers, 38 Okla. 643, I34 Pac. 
 851 (1913) ; Cramer v. Illinois C. M. Assn., 260 111. 516, 103 N. E. 459 (1913) ; 
 Kendrick v. Williams, 157 Ky. 767, 164 S. W. 72 (1914)- 
 
 In Penngylvania "Jiidpments by confession or upon default remain m- 
 definitely within the control of the court, and upon proper cause shown may 
 be opened up or vacated at any time; but not so with respect to judgments 
 obtained adversely. The power com.mitted to the discretion of the court with 
 respect to the latter has a fixed limitation." Pennsylvania Stave Co.'s Appeal, 
 225 Pa. 178, 73 A\\. 1107 (1Q09); Castle v. Reynolds, 10 Watts (Pa.) 51 
 (184c) ; Aheles v. Powell, 6 Pa. Super. Ct. 123 (1897) ; Dean v. Munhall, 11 
 Pa. Super. Ct. 69 (1899) ; McCready v. Cans, 242 Pa. 364, 89 Atl. 459 (1913)- 
 Such control as the court may thereafter exert over the judgment is m the 
 exercise of its chancery powers alone, and is exceptional. Fisher v. Heston- 
 ville R. Co., 185 Pa. St. 602, 40 Atl. 97 ( 1898) ; Ga::sam v. Reading, 202 Pa. 
 23, 51 Atl, 1000 (1902); Benson v. Railway Co., 232 Pa. 187, 81 Atl. 198 
 (1911) ; Wickel v. Mertz, 49 Pa. Super. Ct. 472 (1912).
 
 530 juix;mi:nt 
 
 PURSLEY V. WICKLE 
 
 ArrKLLATE CoiKT OK TxniANA, 1891 
 
 4 hid. A pp. 2,^i 
 
 0\\ tlic I4tli of Xovcmbcr, 1885, in the Howard Circuit Court, 
 W'icklc. in an action against Pursley for dania.e^cs on account of 
 nllogvd fraud in the exchanj^^e of lands, recovered judgment for one 
 dollar, as also for all costs by him laid out and expended not there- 
 tofore adjudged against him. 
 
 At the ]\Iarch term, 1890, of said court, Pursley filed a "motion 
 to modify and correct" said judgment, so that the recovery of costs 
 would be for one dollar only. 
 
 Counsel for Pursley complained that in the rendering of the 
 judgment in favor of the appellee for costs, and which it is now 
 sought to modify, section 592, R. S. 1881, was disregarded. That 
 section is as follows : 
 
 "In all actions for damages solely, not arising out of contract, 
 if the plaintiff do not recover five dollars damages, he shall recover 
 no more costs than damages except in actions for injuries to char- 
 acter and false imprisonment, and where the title to real estate 
 comes to question." 
 
 On the part of Wickle it was insisted that whatever may be 
 said of the action of the court in its judgment for costs, tliat judg- 
 ment could not now be amended or modified upon the motion made 
 by the appellant. 
 
 The court overruled the motion and appellant excepted.^^ 
 
 New, J. : It is well settled that courts have the power to correct 
 mistakes and supply omissions in their records whenever and wher- 
 ever the records supply the means of making such corrections or 
 supplying such omissions. Miller v. Royce, 60 Ind. 189; Reily v. 
 Burton, 71 Ind. 118; Chissom v. Barhour, 100 Ind. i ; i Work's Prac- 
 tice, sections 714, 715, 716, 1030, 1031. 
 
 This power is inherent and belongs to the court as such ; it does 
 not depend upon a statutory grant of jurisdiction, i Black Judg- 
 ments, section 161 ; Freeman Judgments (3d ed.), section 71. 
 
 The authorities all hold that a court has plenary control over 
 its orders, judgments and decrees during the term at which they are 
 rendered. Xor is it only in respect to clerical misprisions or omis- 
 sions that tliis power of amendment during the term may be exer- 
 cised; it also extends to the errors of the court, for during the term 
 the proceedings are in all respects in fieri. 
 
 And as regards mere clerical errors arising from misprisions of 
 clerk, it is always in the power of the court, even after the close 
 of the term, upon motion of one party and due notice to the other, 
 to correct such errors where a showing is made in manner and form 
 as required by law of what the correction should consist. 
 
 "The statement of facts is abridged from the opinion of the court.
 
 PURSLEY V. WICKLE 537 
 
 But in order to secure stability and reliability to the records of 
 the courts and properly guard the rights of parties litigant rules of 
 practice have grown up under the sanction and observance of the 
 courts w^hich impose important limitations on their power to modify 
 or amend their own judgments. 
 
 The power to amend judgments upon motion and notice by 
 making additions or elisions on account of clerical errors after the 
 close of the term at which the judgment was rendered is allowed 
 only for the purpose of making the record conform to the truth, not 
 for the purpose of revising and changing the judgment actually 
 rendered. The only purpose of the amendment in such cases is to 
 make the record conform to the very judgment pronounced by the 
 court; to set right the record and make it speak the truth, so that 
 clerical errors shall not misrepresent what was in fact the action 
 of the court. The rendition of a judgment and the entry of it are 
 different and distinct from each other. The former is the action of 
 the court, while the latter is the act of the clerk of the court. 
 
 Amendments of the kind we are speaking of are not allowed 
 as a means of incorporating into a judgment a mere after-thought 
 nor as a means of modifying or enlarging the judgment, so that it 
 shall express something which the court did not do, even though 
 the proposed amendment embraces matters which should have en- 
 tered into the judgment of the court. 
 
 Amendments upon such motions are not permitted to perform 
 the office of appeal or writ of error, or as a method of reviewing 
 the judgment, correcting judicial mistakes or substituting a judg- 
 ment for the one in fact rendered. Ample provision had been made 
 by the code for the correction of judicial errors in most cases. See 
 Black Judgments, sections 153 to 160; Freeman Judgments (3d ed.), 
 section 69 to section 102; Bole v. Newherger, 81 Ind. 274; Hickman 
 V. Fort Scott, 141 U. S. 415 ; Goucher v. Patterson, 94 111. 525 ; Mer- 
 rill y. Shirk, 128 Ind. 503. 
 
 The appellant's motion is not to reform or amend the judg- 
 ment as to what "seemeth to be misprision of the clerk therein." On 
 the contrary, the plain purpose of the motion is to so change the 
 judgment that it shall be essentially different in substance from 
 what it was as pronounced and different from what it was intended 
 to be, so far as it can be determined from anything disclosed in the 
 record before us.®^ 
 
 Judgment affirmed. 
 
 ^'Accord: Y. B. 9 Edw. IV 3; Anonymous, Goldsb. 151 (1600) ; Anony- 
 mous, Cro. Jac. 213 (1609) ; Villars v. Parry, i Ld. Raym. 182 (1696) ; Philips 
 V. Smith, I Str. 136 (1718) ; Foot v. Cady, i Root (Conn.) 173 (1790); 
 Taylor v. Starr, 2 Root (Conn.) 293 (1795) ; Greene v. Coggswell, 3 Ohio 487 
 (1828) ; Ballard v. Davis, 3 T- J. Marsh. (Ky.) 6s6 (1830) ; Chambers v. 
 Hodges, 3 Tex. 517 (1848) ; lil lcrv y. Clark. 18 Pa. S t. 148 (i8 m) ; Morrison 
 V. Dapman, 3 Cal. 255 (1853) ; Whitivell w. Emory, ^ Mich. 84, 59 Am. Dec. 
 220 (1853) ; Forqtier v. Forquer, 19 111. 68 (1857) ; Gove v. Lyford, 44 N. H. 
 525 (1863) ; De Castro v. Richardson, 25 Cal. 49 (1864) ; Aetna Life Ins. Co. 
 V. McCormick, 20 Wis. 265 (1866) ; Rogers v. Bradford, 8 Bush. (Ky.) 163 
 (1871) ; Wolfe V. Davis, 74 N. Car. 597 (1876) ; Robinson v. Brown, 82 111. 279 
 (1876) ; Blatchford v. Newberry, 100 111. 484 (1881) ; Browder v. Faulkner, 82
 
 538 JUIM^MKNT 
 
 MASON AND OTHERS 7'. FOX, STEVENSON & THORPE 
 Court or Kinu.'s Bkncii, i6ji 
 
 Cro. Jac. 63-''* 
 
 Ejectment in the common pleas of a lease of Robert Tyrwhyt; 
 and judgnii^'iit being given for the plaintiff upon a verdict, error was 
 thereof brought and assigned, because the judgment was, quod re- 
 cuperet versus Franc'xscxim Stephenson possession of a messuage, 
 sixty acres of land, fifteen acres of meadow, and fifteen acres of 
 pasture ; whereas the verdict was entered, that he was found guilty 
 of the ejectment of a messuage, ten acres of meadow, and thirteen 
 acres of pasture, and for the residue not guilty; so as there is not 
 any land in the verdict, and a lesser quantity of ineadow and pasture 
 than is in the judgment. And it was moved that it was amendable; 
 for it is the misprision of the clerk, who ought to have entered the 
 judgment according to the verdict, and the paper copy for entering 
 the judgment was right enough ; so that the mis-enterings of it upon 
 the roll was amendable by the statute of 8 Hen. 6, ch. 12. But it was 
 objected to that it was not amendable ; for being in point of judgment, 
 it is always imputed to be the act and error of the court, and not 
 merely the default of tlie clerk : as where a capiatur is entered for a 
 uiisericordia, or a Concessum est per Curiam where it should have 
 been a consideratum est, etc., it hath been adjudged to be error, and 
 
 Ala. 257, 3 So. 30 (1886) ; Knox v. Moser, 72 Iowa 154, 33 N. W. 617 (1887) ; 
 Stannard v. Hubbel, 123 N. Y. 520, 25 N. E. 1084 (1890) ; Crew v. JdcCafferty. 
 12 4 Pa. St. 2QO. 16 Atl. 7A ^. ID Am. St. 578 (1889) ; Egan v. hganTgo Cal. 15, 
 27 Fac. 22 ( 1891 ) ; Radclyffe v. Barton, 134 Mas.s. 157, 28 N. E. 148 (1891) ; 
 McKay v. Dcnnington, 82 Hun 509, 31 N. Y. S. 716, 64 N. Y. St. 394 (1894) ; 
 Hicklin v. Marco, 64 Fed. 609 (1894) ; Cleveland Leader Printing Co. v. Green, 
 52 Ohio St. 487, 40 N. E. 201, 49 Am. St. 725 (1895) ; Heath v. New York 
 Bldg. &c. Bank. Co., 146 N. Y. 260, 40 N. E. 770 (1895) ; Griffith v. Maxwell, 
 19 Wash. 614, 54 Pac. 35 (1898) ; Alay v. Stimson Lumber Co., 119 N. Car. 96, 
 25 S. E. 721 (1896) ; State v. Donovan, 10 N. Dak. 203, 86 N. W. 709 (1901) ; 
 Chicago &c. R. Co. v. State, 159 Ind. 2t,7, 64 N. E. 860 (1902) ; Rice v. Donald, 
 97 Md. 396, 55 Atl. 620 (1903) ; Goldreyer v. Cronan, 76 Conn. 113, 55 Atl. 594 
 (1903) ; Dunscomb v. Poole, 41 Misc. 335, 84 N. Y. S. 749 (1903) ; Pisa v. 
 Resek, 206 111. 344, 69 N. E. 67 (1903) ; Day v. Mountin, 89 Minn. 297, 94 
 N. W. 887 (1903); Mclnnes v. Sutton, 35 VVash. 384, yy Pac. 736 (1904) ; 
 Camplin v. Jackson, 34 Colo. 447, 83 Pac. 1017 (1905) ; Smith v. Smith, 121 
 App. Div. 480, 106 N. Y. S. 137 (1907) ; Olson v. Mattison, 16 N. Dak. 231, 
 112 N. \V. 994 (1907); Laugesen v. Sanford, 135 Wis. 252, 115 N. W. 808 
 (1908) ; Story Mercantile Co. v. McClcllan, 145 Ala. 629, 40 So. 123 (1906) ; 
 Boardman v. Hesseliine, 200 Mass. 495, 86 N. E. 931 (1909) ; Forrester v. Laiv- 
 ler, 14 Cal. App. 171, 11 1 Pac. 284 (1910) ; Heinitc v. Darm.';tadt, 140 App. Div. 
 252, 125 N. Y. S. 109 (1910) ; Silliman v. Silliman, 66 Ore. 402. 133 Pac. 769 
 (1913) ; Jnster v. Court of Honor, 120 Minn. 325. 139 N. W. 701 (1913). 
 Compare Ehrhart's Esta t e, 31 Pa. Super. Ct. 120 (1906 ). and see Lewis v. 
 Linton. 24 Ha. C". Ct. I8g (looo).: ' Frit chard v. Mines, ^b Ind. App.~57i,~io6 
 N. E. 411 (1914). So also, a court of equity will not interfere with a judgment 
 at law merely because it is erroneous. Jacobs v. M orange, 47 N. Y. 57 (1871) ; 
 Cros.f V. Gall. 6^ W. Va. 276, 64 S. E. 533 (1909) ; West Chicago Park Comm. 
 V. Riddle, 151 111. App. 487 C1909). 
 
 "S. C. Anonymous, W. Jones, 9. Part of the case is omitted.
 
 MASOX V. FOX 539 
 
 not amendable. And thereupon it was much debated whether it 
 might be amendable. 
 
 All the justices of the King's Bench and Barons of the Ex- 
 chequer were assembled to consider thereof; and they all agreed 
 and resolved (except Tanfield, Chief Baron, who doubted thereof, 
 upon divers precedents shown to them), that it was amendable, and 
 not like to tlie cases put ; for the entry of a capiatur instead of a 
 misericordia is an error in point of law,"° and can not be imputed to 
 the default of the clerk, the clerk having nothing to induce him either 
 ways; but here the verdict is the guide to the judgment, and the 
 court direct the judgment to be entered according to that verdict ; 
 for the judgment is but the consequent of the verdict, and when the 
 verdict is before the clerk to enter his judgment, it is but his mis- 
 prision that he did not enter it according to the verdict, especially 
 here, when the entry of the judgment in the paper is according to 
 the verdict, and the entry on the roll is in another manner and dis- 
 agreeing from the verdict, and so a mere misprision of the clerk, and 
 no default in the court ; wherefore it is amendable.''^ 
 
 ■^"See 3 Bl. Comm. 398. By the statute of jeofails, 16 & 17 Car. II, ch. 8, 
 a capiatur for a misericordia was made amendable after verdict. Anonymous, 
 3 Mod. 112 (1686). 
 
 "Accord: Gyciivile v. Smith, Cro. Jac. 628 (1621) ; Aylesworth V. Chad- 
 well, Cro. Car. 38 (1626) ; Anonymous, I Vent. 132 (1671) ; Cradock v. Rad- 
 ford, 4 Mod. 371 (1604) ; Vcrelsfv. Rafael, Cowp. 425 (1776) ; Doe v. Perkins, 
 3 T. R. 749 (1790) ; Dunbar v. Hitchcock, 3 M. & S. 591 (1815). "There can 
 be no doubt that it is competent for a court of record, under its general, 
 inherent and necessary authoritj^ to correct the mistakes and supply the 
 defects of its clerk or recording officer, so as to have the record conform to 
 the actual facts and truth of the case, and that this may be done at any time 
 as well after as during the term nutic pro tunc." Balch v. Shaw, 61 Mass. 282 
 (1851). Accord: Close v. Gillespey, 3 Johns. (N. Y.) 526 (1808) ; IValdo v. 
 Spencer, 4 Conn. 71 (1821) ; Chichester v. Cande, 3 Cow. (N. Y.) 39, 15 Am. 
 Dec. 238 (1824) •,Chaviherlain v. Crane, 4 N. H. 115 (1827) ; Hall v. Williams, 
 10 Maine 278 (1833) ; Hunt v. Allen, 22 N. J. L. 533 (1850) ; Fay v. Wcnzell, 
 62 Mass. 315 (1851) ; Lewis v. Ross, 37 Maine 230, 59 Am. Dec. 49 (1854) ; 
 Ohio V. Beam, 3 Ohio St. 308 (1854) ; Smithy. Hood, 25 Pa. St. 218, 64 Am. 
 Dec. 692 (1855); Emery v. Whitwell, 6 JViich. 474 U«59^ '; Biirson v. Blair, 
 12 Ind. 371 (1859) ; State v. Dowd, 43 N. H. 454 (1862) ; Doane v. Glenn, i 
 Colo. 454 (1872) ; Smith v. Kennedy, 63 Ala. 334 (1879) ; Bean v. Ayres, 70 
 Maine 421 (1879) ; Ecker v. Bank, 64 Md. 292, i Atl. 849 (1885) ; Lci"^ v. 
 Kennedy. ■>\W^^^- <'Pa,) ^n? (1876) ; Wiggin v. Superior Court, 68 CaTr39B, 
 9 Pac. 646 (1886) ; Cohn y. Scheuer. 11; Pa. St. t78. 8 Atl. 421 (1886) ; Bohlen 
 V. Metropolitan &c. R. Co., 121 N. Y. 546, 24 N. E. 932 (1890) ; Hatton v. 
 Harris, L. R. (1892) App. Cas. 547; Hogue v. Corhit, 156 111. 540, 41 N. E. 
 219, 47 Am. St. 232 (1895) ; Bostwick v. Van I leek, 106 Wis. 387, 82 N. W. 
 302 (1900) ; Stevenson v. Black, 168 Mo. 549, 68 S. W. 909 (1902) ; Willard's 
 Estate, 139 Cal. 501, 73 Pac. 240, 64 L. R. A. 554 (1903) ; litest Chicago Park 
 Comrs. V. Boal, 232 111. 248, 83 N. E. 824 (1908) ; Kreisel v. Snavery, 135 Mo. 
 App. 155, 115 S. W. 1059 (1908) ; Gage v. Weineck, 148 111. App. 140 (1909) ; 
 _Keech Co. v. O'Herron. ii Pa. Super. Ct. 108 (1Q09) ; Brown v. Clark, 81 
 "Conn. 562, 71 Atl. 727 (1909) ; Strodi v. Stafford Co., 65 Misc. 625, 121 N. Y. S. 
 93 (1910) ; Clark v. Scovill, 198 N. Y. 279, 91 N. E. 800 (1910) ; Schloss v. 
 Lennon, 123 Minn. 420, 144 N. W. 148 (1913) ; Green v. Commonwealth, 152 
 Ky. 239, 153 S. W. 242 (1913)-
 
 t^40 JUDGMENT 
 
 SECTION 5. OPENING AND VACATING JUDGMENTS 
 
 DEERING V. QUIVEY 
 
 Supreme Court or Oregon, 1895 
 
 26 Ore. 556 
 
 This is an action by William Dccring & Company against the 
 partnership of Creighton & Quivey, and comes here on appeal from 
 an order of the Circuit Court of Benton County vacating a judgment 
 of that court, and permitting the defendants to file an answer. The 
 transcript shows that a demurrer to the complaint having been 
 overruled, the defendants refused to further plead or answer, and 
 judgment was on April 14, 1892, rendered against them. It also 
 appears from the affidavit of their attorney, filed on November 25th 
 of that year, that they had a valid and meritorious defense to the 
 action, but, believing that said demurrer constituted a legal defense, 
 suffered judgment to be rendered against them, intending to test 
 the issue of the law raised thereby upon appeal to this court; and 
 that he, for such purpose, in proper time, prepared a notice of 
 appeal, and took it to the office of the sheriff of the said county for 
 service, but finding said officer absent therefrom, left it with the 
 deputy clerk, who promised to deliver it to the sheriff upon his re- 
 turn. Believing said notice had been served, the appeal was other- 
 wise perfected, and the transcript filed in this court. The cause was 
 set for hearing, and he prepared a brief therefor, but did not dis- 
 cover that said notice had not been served until after November 
 23d, which was too late to take an appeal. He also filed with said 
 affidavit copies of said notice, and the undertaking on appeal, and 
 tendered an answer duly verified by the defendants, and moved the 
 court to set aside and vacate said judgment, and permit said answer 
 to be filed. This motion was on June 5, 1893, granted, and an order 
 made by the court vacating said judgment, and permitting said 
 answer to be filed, from which order and judgment the plaintiffs 
 appeal.''^ 
 
 Moore, J.: The statute provides that the court "may, in its dis- 
 cretion, and upon such terms as may be just, at any time within 
 one year after notice thereof, relieve a party from a judgment taken 
 against him through his mistake, inadvertence, surprise, or ex- 
 cusable neglect." Hill's Code, section 102. It can not be success- 
 fully contended that there was any mistake, inadvertence, surprise, 
 or excusable neglect on the part of the defendants when they elected 
 to rely upon their demurrer to the complaint, and suffered judg- 
 ment to be rendered against them for want of answer. "A motion 
 or proceeding," says Mr. Black in his work on judgments, section 
 330, "to vacate or set aside a judgment can not be sustained on any 
 
 "Part of the opinion of the court is omitted.
 
 DEERIXG V. QUIVEY 541 
 
 grounds which might have been pleaded in defense to tlie action, and 
 could have been so pleaded with proper care and diligence." Relief 
 will not be granted when a party has knowingly acquiesced in the 
 judgment complained of, or has been guilty of laches and unreason- 
 able delay in seeking his remedy. Craig v. Worth, 47 Md. 281 ; 
 Elder v. Bank of Lawrence, 12 Kans. 242. The defendants had an 
 opportunity to plead to the complaint, but they voluntarily declined 
 to do so, and consented to and knowingly acquiesced in the judg- 
 ment which was rendered. The liberal provisions of the statute 
 above quoted are intended for the benefit of those who, by reason of 
 any of the causes there assigned, have not had their day in court. 
 The defendants, having had this right, can not claim any relief under 
 that section of the statute. 
 
 The remedy, if there is any in this case, must be based upon the 
 inherent right of every court of record to correct, modify, or vacate 
 its judgments and decrees. This right, however, exists only while 
 the proceedings of the court remain in the breast of the judges, 
 or during the term at which the judgment or decrees was rendered; 
 and at the close of such term all final proceedings had therein 
 become conclusive, and the court loses jurisdiction of them. Free- 
 man on Judgments (3d ed.), section 69. "When a final judgment," 
 says Pleasants, J., in Brewster v. Nor fleet (Texas Civ. App.), 22 
 S. W. 226, "has been rendered in a cause, and the term of the court 
 has expired, the jurisdiction of the court over the subject matter of 
 litigation is gone; and the court has no power to set aside the judg- 
 ment, and to hear the case anew, for the purpose of correcting errors 
 committed upon the former trial." This was the rule of the common 
 law and, unless modified by statute, still prevails in most of the 
 courts.'^^ 
 
 Reversed. 
 
 "It is generally held that in the absence of statutory authority, a court has 
 no power to open, vacate or set aside a final judgment obtained adversely, 
 after the expiration of the term at which such judgment was rendered. 
 Cameron v. McRoberts, 3 Wheat. (U. S.) 591, 4 L. ed. 467 (1818) ; Lampsett 
 V. Whitney, 4 111. 170 (1841) ; Slatter v. Glover, 14 Ala. 648, 48 Am. Dec. 118 
 (1848); Blair V. Russell, i Ind. 516 (1849); Cook v. Wood, 24 111. 293 
 (i860) ; Spafford v. Janesville, 15 Wis. 474 (1862) ; Lattimer v. Ryan, 20 Cal. 
 628 (1862) ; Hall v. Paine, 47 Conn. 429 (1880) ; Donnell v. Hamilton, 77 Ala. 
 610 (1884) ; Gilbert Arnold Land Co. v. O'Hare, 93 Wis. 194, 67 N. W. 38 
 (1896) ; Jones v. New York Life Ins. Co., 14 Utah 215, 47 Pac. 74 (1896) ; 
 Hill v. Eaa n^Q W. N. C. (Pa.) 267 (18 06) ; Schmidt v. Rehwinkel, 86 111. 
 App. 267' (i?m)^DearLJL.Jdim hall. 11 P a. Super Ct. 6q_ (i8qo) : Chicago v. 
 Nicholes, 192 111. 489, 61 N. E. 434 (1901) ; Turner v. Davis, 12,2 N. Car. 187, 
 43 S. E. 637 (1903); People v. District Court, 2>2> Colo. 405, 80 Pac. 1065 
 (1905) ; Curtiss v. Bell, 131 Mo. 245, in S. W. 131 (1908) ; Ayres v. Ander- 
 son Tully Co., 89 Ark. 160, 116 S. W. 199 (1909) ; McCreadv v. Gatis, 242 P a. 
 .364, 89 Atl. 4=^0 (1913) ; Tryon v. Pennsylvania R. Co., 213 Fed. 49 (1914)". 
 
 In a number of states statutes provide that the courts may within a pre- 
 scribed time (frequently a year) relieve a party from a judgment or order 
 taken against him through his mistake, inadvertence, surprise or excusable 
 neglect. New York Code Civ. Proc, § 724; California Code Civ. Proc, § 473; 
 Ohio Gen. Code (i9io),§ 11631. A party seeking relief under such statutes must 
 show good and sufficient reasons for failing to defend at the proper time. 
 Cowton v. Anderson, i How. Prac. (N. Y.) 145 (1845) ; Milwaukee Mut. Loan 
 &c. Soc. V. Jagodzinski, 84 Wis. 35, 54 N. W. 102 (1893) ; Mitchell v. Allen,
 
 54- JUDGMENT 
 
 ANONYMOUS 
 
 Supreme Court ok Nkw York, 1826 
 
 6 Coze. (N. v.) 390 
 
 T. A. Collier, for the defendant, moved to set aside a default for 
 want of a plea, on the ground of merits. 
 
 H. P. Hunt, contra, read an affidavit showing that by reason of 
 the defendant's doubtful circumstances, the plaintiff would be in 
 danger of losing his debt, unless the judgment w^as suffered to stand 
 as security. 
 
 Curia. Let the defendant plead and go to trial on payment of 
 costs; the judginent to remain as security. 
 
 Collier. Do the court mean the cost of resisting the motion 
 merely, or the costs of the default and subsequent proceedings also? 
 
 Curia. Both must be paid. The plaintiff is entitled to them as a 
 
 no Ga. 2S2, 34 S. E. 851 (1899). In New York it is held that the court has 
 power, independently of the statutes, to set aside judgments improperly ob- 
 tained; the only limitation is that the motion must be within one year. 
 Weston V. Citizens' Nat. Bk., 88 App. Div. 330, 84 N. Y. S. 743 (1903) ; 
 Clark V. Scovill, 198 N. Y. 279, 91 N. E. 800 (1910). 
 
 The principle has been applied to mistakes of fact. Cannon v. Reynolds, 
 5 El. & Bl. 301 (1855) ; Capcn v. Stoughton, 82 Mass. 364 (i860) ; Mead v. 
 Morris, 21 Wis. 310 (1867) ; Kimball v. Kclton, 54 Vt. 177 (1881) ; Bahcock 
 V. Day, 104 Pa. St. 4 (1883) : Keith v. McCaffrey, 145 Mass. 18, 12 NTET. 419 
 ri887) ; Sargent v. Kindred, 5 N. Dak. 8, 63 N. W. 151 (1905) ; Wright v. 
 Krabbenhoft, 104 Minn. 460, 116 N. W. 940 (1908) ; Litlnianian Soc. v. Tunila, 
 80 Conn. 642, 70 Atl. 25 (1908) ; Hilt V. Hcimbcrger, 235 111. 235, 85 N. E. 304 
 (1908). Compare demons v. rield, 99 N. Car. 400, 6 S. E. 790, 6 Am. St. 529 
 (1888); Lou-e V. Hamilton, 132 Ind. 406, 31 N. E. 1117 (1892); Devlin v. 
 Boyd, 69 Hun 328, 23 N. Y. S. 523, 53 N. Y. St. 247 (1S93). Also to accident 
 and neglect excusable under the circumstances. Sage v. Matheny, 14 Ind. 369 
 (i860)'; Atzvood V. Chichester, 3 Q. B. Div. 722 (1878); Davis Estate, 15 
 Mont. 347, 39 Pac. 292 (1804) ; Grady v. Donahoo, 108 Cal. 211, 41 Pac. 41 
 
 (1895) ; Thompson v. Connell, 31 Ore. 231, 48 Pac. 467, 65 Am. St. 818 (1897) ; 
 Ennis V. Fourth Nat. Bk., 102 Iowa 520, 71 N. W. 426 (1897) ; Oueal v. Bulen, 
 89 Minn. 477, 95 N. \V. 310 (1903) ; Boyd v. Williams, 70 N. J. L. 185, 56 Atl. 
 135 (1903) ; Capital Fire Ins. Co. v. Davis, 85 Ark. 385, 108 S. W. 202 (1908) ; 
 Lichier v. Seitznian, 121 N. Y. S. 609 (1910) ; Robinson v. Carmichael, 134 
 Ga. 654, 68 S. E. 582 (1910). Compare, where the excuses were insufficient, 
 Shaffer v. Sutton, 49 111. 506 (1869); Prager v. Beardsley, 133 App. Div. 
 592, 118 N. Y. S. 232 (1909) ; Kachel v. Stiitz, 137 App. Div. 199, 121 N. Y. S. 
 979 (1910) ; Gainsville v. Johnson, 59 Fla. 459, 51 So. 852 (1910); Gurske v. 
 Britt, 86 Nebr. 312, 125 N. W. 539 (1910). 
 
 As to negligence of counsel see 17 A. & E. Encyc. of Law (2d ed.) 833 and 
 compare Kreite v. Kreite, 93 Ind. 583 (1883) ; Butler v. Morse, 66 N. H. 429 
 23 Atl. 90 (1891); Amherst College v. Allen, 165 Mass. 178, 42 N. E. 570 
 
 (1896) ; Saut^t) V. J-laniaan, 7 Pa. Dist. R. 604^ (1898) ; Morris v. IVofford, 114 
 Ga. 935, 41 S. E. 56 (1902) ; Eggleston v. Royal T. Co., 205 111. 170, 68 N. E. 709 
 (1903) ; Alfcrits v. Cahcn, 145 Cal. 397, 78 Pac. 878 (1904) ; Barlow v. Burns, 
 70 N. J. L. 631, 57 Atl. 262 (1904) ; Fisher v. Hcnning (Tex. Civ. App.), 164 
 S. W. 913 (1914), with Philips v. Hawley, 6 Johns. (N.Y.) 129 (1810) ; 
 Sharp V. New York, 31 Barb. 578 (i860) ; Densereau v. Salliant, 22 R. I. 500, 
 48 Atl. 668 (1901) ; Brand v. Baker, 42 Ore. 426, 71 Pac. 320 (1903) ; Lenz v. 
 Rowe, 66 N. J. L. 131, 48 Atl. 525 (1901) ; Van Cott v. Wcbb-Millcr. 2 ^ Pa. 
 Super. Ct. 51 (190 4)-
 
 LUDWIN V. SIANO 543 
 
 consequent of the default ; and at all events. Were this otherwise, 
 the plaintiff would lose these costs altogether, if he should not suc- 
 ceed. We do not mean his obtaining them should in any way depend 
 on the event of the suit. 
 Rule accordingly.^* 
 
 CHARLES LUDWIN v GUSEPPE SIANO 
 Supreme Court of New York, 1901 
 
 36 Misc. (N. Y.) 537 
 
 Appeal by the plaintiff from an order made by tlie Municipal 
 Court of the city of New York, second district, borough of Manhat- 
 tan, vacating a judgment and discharging the defendant from arrest 
 and imprisonment. '^^ 
 
 McAdam, p. J. : On the return day of the summons botli parties 
 appeared. The plaintiff declined to pay the clerk's trial fee, where- 
 upon the justice dismissed the complaint. The defendant then de- 
 parted from the court-room, whereupon the plaintiff paid the trial 
 fee and, concealing the fact that It was the same case in which the 
 justice had granted such dismissal, took from the justice a judg- 
 ment as upon the defendant's default, with a provision adjudging 
 the defendant liable to arrest and imprisonment. The defendant was 
 incarcerated under the execution issued, whereupon he obtained 
 from the justice an order to show cause why the proceedings should 
 not be set aside. The justice, after hearing the parties, decided that 
 a fraud upon the court had been committed, vacated the judgment 
 and execution and discharged the defendant from further imprison- 
 ment. The propriety of the order can not be questioned, but the 
 
 '^In opening a judgment and allowing the defendant a hearing on the 
 merits the court may impose equitable terms as a condition precedent to grant- 
 ing relief. Anonymous, 3 Doug. 431 (1784) ; Larimer v. Liile, I Chitty, Rep. 
 134 (1879) ; Cash v. Wells, I B. & Ad. 375 (1830) ; Livingston v. Livingston, 
 3 Johns. (N. Y.) 254 (1808) ; Denton v. Noyes, 6 Johns. (N. Y.) 296, 5 Am. 
 Dec. 237 (1810) ; Pier son v. Hohnan, 5 Blackf. (Ind.) 482 (1840) ; Bailey^v. 
 Clayton, 20 Pa. St. 29.'^ (.^^•''3) ' Blodget v. Conklin, 9 How. Prac. (NrY.T 442 
 (1854) ; Mottv. Union Bank, 8 Bosw. 591 (1861) ; McMurray v. Erie, 59 Pa, 
 St. 223 (1868) ; McTague v. Pennsylvania & N. E. R. Co., 44 N. J. L. 62 
 (1882) ; Huston Tt>. &c. Ins. Co. v. Beale, lio P a,,St._32l^ Atl. 926 (1885) ; 
 Exley v. Bcrryhill, 36 Minn. 117, 30 JNl. VV. 436 (1886) ; Missouri Pac. R. Co. v, 
 Linson, 39 Kans. 416, 18 Pac. 498 (1888) ; Bond v. Neusclnvander, 86 Wis. 391, 
 57 N. W. 54 (1893) ; Law v. O'Regan, T79 Mass. 107, 60 N. E. 397 (1901) ; 
 Chicago v. English, 198 111. 211, 64 N. E. 976 (1902) ; Shenstone v. Wilson, 117 
 App. Div. 752, 102 N. Y. S. 1037 (1907) ; Friedland v. Commonivealth F. Ins. 
 Co., 136 App. Div. 6, 120 N. Y. S. 126 (1909) ; Heiliger v. Ritter, 78 Misc. 264, 
 138 N. Y. S. 212 (1912). The payment of accrued costs may be imposed. .Sistcd 
 V. Lee, I Salk. 402 (1704) ; Roland v. Kreyenhagen, 18 Cal. 455 (1861) ; N orris 
 V. Dodge, 23 Ind. 190 (1864) ; Flanigan v. Thompson, 4 W- N. Cas. (Pa.) 74 
 (1877) ; Ueland v. Johnson, 77 Minnr543, 80 N. W. 700, 77 Am. ^t. 698 (1899) ; 
 Goodness v. Metropolitan S. R. Co., 49 App. Div. 76, 63 N. Y. S. 476 (1900) ; 
 Bloor V, Smith, 112 Wis. 340, 87 N. W. 870 (1901); Kressh v. Novick, 162 
 App. Div. 891, 148 N. Y. S. 55 (1914), 
 
 "Part of the opinion is omitted.
 
 c; |.j. JUDGMENT 
 
 iustico's power to make It is challcnj::ed, the plaintiff claiming that he 
 can only open a juclj::ment and not vacate one. 
 
 This court has hclil that a justice of the municipal court has 
 ]>owcr in a i>ropcr case to vacate a judi^mcnt for want of jurisdiction 
 under the amendment of 1896, ch. 748. Sccrlip v. Baier, 21 Misc. 
 
 Rep. 331. 
 
 The only availahle objection to the order is that it allowed ten 
 dollars cost's on granting the motion, which the municipal court has 
 no statutory power to allow. The order will, therefore, be modified 
 by striking out the ]>rovision as to ten dollars costs and as modified 
 affirmed, with costs."^ 
 
 IN RE COLLEGE STREET 
 
 Supreme Court of Rhode Island, 1877 
 
 II R. I. 472 
 
 Motions to vacate assessments for benefit made in the matter of 
 the widening of College street. The assessments were made by com- 
 missioners appointed by the court tmder an act of 1854 relating to 
 streets in the city of Providence, and, upon the filing of their report, 
 notice was given and the report was subsequently confirmed by the 
 court. It appeared that, by an act of 1873, the power to assess for 
 benefits had been taken away from such commissioners and that 
 the report in so far as it reported assessments was unauthorized and 
 void.'^ 
 
 DuRFEE, C. J.: The report was confirmed at the March term, 
 1874. The motions were not filed until tlie October term, 1874, or 
 
 "The court may open or vacate a judgment procured by collusion or 
 fraud uhere the court has been imposed upon, or a party deprived of his day 
 in court without fault on his part or that of his counsel. Binsse v. Barker, 13 
 N J L. 263, 23 Am. Dec. 720 (1832) ; Bell v. Kelly, 17 N. J. L. 270 (1830) ; 
 Cnrhrnn v. Eldridne. 40 Pa. St. 36.'^ (1865) ; Gillespie v. Ront, 39 111. 247 ( 1866) ; 
 JTa\herry v. McClurg, sT'IVIo. 256 (1873) ; Dngan v. McGlann, 60 Ga. 353 
 (1878) ; Zellcrhach v. Allcnhcrg, 67 Cal. 296, 7 Pac. 908 (1885) ; Taylor v. 
 Sharp, 8 Manitoba 163 (1892) ; O'Neill's Estate, 90 Wis. 480, 63 N. W. 1042 
 (1895) • Larson v. Williams, 100 Iowa no, 63 N. W. 464, 69 N. W. 441, 62 
 Am. St. 544 (1896) ; Adams School Tp. v. /rzc'tw, 150 Ind. 12, 49 N. E. 806 
 (1897); Furman v. Furman, 153 N. Y. 309, 47 N. E. 577, 60 Am. St. 629 
 (1897) ; Rivers v. West, 103 Ga. 582, 30 S. E. 555 (1897) ; Cotterall v. Kaon, 
 151 Ind 182, 51 N. E. 235 (1898) ; Bates v. Hamilton, 144 Mo. I, 45 S. W. 
 641 66 Am. St. 497 (1898) ; Nugent v. Metropolitan St. R. Co., 46 App. Div. 
 105' 61 N Y. S. 476, 7 N. Y. Ann. Gas. 193 (1899) ; Wright v. Simpson, 200 
 111 'c6 65 N. E. 628 (1902) ; Pelts v. Bollinger, 180 Mo. 252, 79 S. W. 146 
 (1903) ; Kcyes v. Brackelt, 187 Mass. 306, 72 N. E. 986 (1905) ; French v. 
 Raymond, 82 Vt. 156, 72 Atl. 324 (1909) ; Wade v. Watson, 133 Ga. 608, 66 
 S E 922 (1909) ; United States v. Aakervik, 180 Fed. 137 (1910) ; Wagner v. 
 Beadle, 82 Kans. 468, 108 Pac. 859 (1910) ; Miller v. Barto, 247 111. 104, 93 
 N E 140 (1910) ; Roberts v. Pratt, 152 N. Car. 731, 68 S. E. 240 (1910) ; 
 IVickel v. Mertc. 40 Pa. Suoer. Ct. 472 (1012!: Moore v. Moore, 139 Ga. 597, 
 77 S. E. 820 (1913)- , , . . r u 
 
 "The statement of facts is abridged from a part oi the opmion ot the 
 
 court.
 
 IN RE COLLEGE ST. 545 
 
 later. Ordinarily the court has no power over its judgments, to alter 
 or annul them upon mere motion after the close of the term at which 
 they were rendered. It is claimed, however, in support of the mo- 
 tions, that, while this is ordinarily so, yet the rule has its exceptions, 
 and that judgments may be set aside on motion after the term at 
 which they were entered, when they are irregular, or void for want 
 of jurisdiction. The cases support this claim. '^^ 
 
 In Hervey & Co. v. Edmunds, 68 N. C. 243, the court say that 
 a judgment void for want of jurisdiction of the subject matter may 
 be set aside or stricken from the records ex niero motu, or at the 
 instance of any person interested in having it done. In that case 
 the motion was made several terms after the entry of the judgment. 
 It was refused; not, however, because made too late. In For men 
 et at. V. Carter et al., 9 Kans. 674, the opinion of the court was 
 that a void judgment can be set aside at any time on motion. In 
 Crane Adm'r v. Barry, 47 Ga. 476, the court entered judgment on 
 an award, having power to transform a statutory award into a judg- 
 ment. At a subsequent term the court set the judgment aside on 
 motion, holding it to be void upon the ground that the award was not 
 statutory, but simply a common law award. In Shuford v. Cain, 
 I Abb. U. S. 302, a judgment rendered by a United States Circuit 
 Court, in a cause over which it had no jurisdiction under the Judi- 
 ciary Act, was set aside by the court on motion at a subsequent term 
 as a nullity. See also Camion v. Reynolds, 5 El. & B. 301. 
 
 We think the cases abundantly show our authority to grant the 
 motions. We think, too, the motions ought to be granted ; for though 
 our decree is void, it is not necessarily innocuous. Under the act 
 of 1854 the assessments are not enforced by execution issuing out 
 of this court, but are added to the taxes of the persons whose estates 
 are assessed, and are a lien upon those estates. In the case at bar 
 the assessments have been added to the taxes. This has been done 
 under the sanction of our decree. The persons whose estates are 
 clouded by the assessments, and who are threatened with their col- 
 lection, move us to vacate the decree and the report confirmed by it, 
 in so far as they purport to confirm or report any assessments 
 against them. 
 
 Assessments vacated.^^ 
 
 "Citing Hooe v. Barber, 4 Hen. & M. 439 (1809) ; Holmes v. Howie, 8 
 How. Pr. (N. Y.) 383 (1851) ; Keaton v. Banks, 10 Ired. (N. Car.) 381, 51 
 Am. Dec. 393 (1849) ; Ex Parte Crenshaw, 15 Pet. (U. S.) 119, 10 L. ed. 682 
 (1841); Harris v. Hardeman, 14 How. (U. S.) 344, 14 L. ed. 449 (1852); 
 Wood V. Luse, 4 AlcLean 254, Fed. Cas. No. 17950 (1847) ; Franks v. Lockey, 
 45 Vt. 395 (1873) ; Hallett v. Righters, 13 How. Pr. (N. Y.) 43 (1S56) ; Piii 
 V. Davison, 27 Barb. (N. Y.) 97 (1861) ; Dedcrick v. Richley, 19 Wend. 
 (N. Y.) 108 (1838) ; Manufacturers &c. Bank v. Boyd, 3 Den. (N. Y.) 257 
 (1846); Reynolds v. Stanshury, 20 Ohio 344, 55 Am. Dec. 459 (1851) ; 
 Winslow V. Anderson, 3 Dev. & B. (N. Car.) 9, 32 Am. Dec. 651 (183S) ; 
 Cityy. Boyd, 50 111. 453 (1869) ; Cowles v. Hayes, 69 N. Car. 406 (1873). 
 
 "*A void judgment, or a judgment rendered in proceedings materiaHy 
 irregular, may be vacated or set aside after the time when ordinarily it would 
 become final. Page v. South, 2 D. & L. 108 (1844) ; Anlaby v. Praetorius, 
 L. R. 20 Q. B. Div. 764 (1888) ; Hunt v. Yeatman, 3 Ohio, 15 (1827) ; Hunt- 
 ington V. Finch, 3 Ohio St. 445 (1854) '> Downing v. Still, 43 Mo. 309 (1869) - 
 
 35 — Civ. Prog.
 
 540 JUDGMENT 
 
 SECTION 6. COLLATERAL ATTACK 
 
 (a) Personal Actions 
 
 ANONYMOUS 
 
 Court of Exchequer, 1364 
 
 Liber Assisanim, 38 Edw. Ill 21" 
 
 Certain men were outlawed in the King's Bench in the time 
 of Shard elowe^'^ and their chattels were forfeited. And the names 
 of the men so outlawed were sent into the Exchequer with the 
 amount of their goods, among whom there was a man, sent with 
 the others by misprision of a clerk, who was not outlawed, who had 
 chattels to the value of £6. And a writ issued to the sheriff where 
 the chattels were to levy them to the use of the King, who returned 
 that a lord had seized the said goods, and thereupon a writ issued 
 to him out of the Exchequer to make him reply to the King concern- 
 ing the said goods, who came and alleged that the said man whose 
 goods he had in his hands was not outlawed. And upon this came 
 parcel of record of the King's Bench by writ which was issued 
 out of Chancery. And Green^^ came with the defendant into the 
 Exchequer and testified that he was not outlawed, but it was a mis- 
 prision of the clerk. 
 
 Skipwith.^^ Although all the justices wished to declare other- 
 wise, when they had the record before them they should not be 
 received.^* 
 
 Olney v. Harvey, 50 111. 453, 99 Am. Dec. 530 (1869) ; Foreman v. Carter, 9 
 Kans. 674 (1872) ; Lucy v. Dowling, 114 Mass. 92 (1873) ; White v. Coulter, 
 59 N. Y. 629 (1874) ; Giiyer v. Giiyer, 6 Houst. (Del.) 430 (1881) ; Dohbms 
 V. McNamara, 113 Ind. 54, 14 N. E. 887. 3 Am. St. 626 (1887) ; Pantallv. 
 Dirkpy, \2X Pa. St. 4^1 , 16 Atl. 7 80 (1889) ; Mueller v. Rcimer, 46 Mmn. 314, 
 48I7TW. 1 120 (1S91); Dalton V. West End. S. R. Co., 159 Mass. 221, 34 N. E. 
 261, 38 Am. St. 410 (1893); People v. Temple, 103 Cal. 447, Z7 Pac. 414 
 (1894) ; Maiirys v. Fitzivatcr, 88 Fed. 768 (1898) ; Rorer v. People's Bldg. &c. 
 Assn., 47 W. Va. i, 34 S. E. 758 (1899) ; Union C. Co. v. Leffler, 122 Ga. 640, 
 50 S. E. 483 (1905) ; Kerns v. Morgan, 11 Idaho 572, 83 Pac. 954 (1905) ; 
 Mj^rrn fd v Tlninn Tp. Poor Dist.. <?i P a. Suner. Ct. 4; ^ (1906) ; Shmnake v. 
 SKiimake, 17 Idaho 649, 107 Pac. 42 (1910) ; Lushington v. Seattle A. & D. 
 Co., 60 Wash. 546, III Pac. 785 (1910); Dorian v. F i rst Catholic Slovak 
 lhtlnti^^iV^__F^ir^ r Ct, Tip (19 12') ; 3 Blackst. Comm. 406. 
 
 'HTansTated from TotteH's Edition of 1561 ; S. C. Brooke's Abridgment, 
 Record 45. 
 
 "John de Shardelowc, justice of the Common Bench and King's Bench, 
 died 1344 (Foss.). 
 
 "Henr>- Green, chief justice of the King's Bench, 1362 (Dugdale, Foss.). 
 
 "William de Skipwith, chief baron of the Exchequer, 1363, Dugdale, 
 Foss.). 
 
 ^"And the rolles being the records or memorialls of the judges of the 
 court of record, import in them such uncontrollable credit and veritie, as they 
 admit no averment, plea or proofe to the contrarie." Co. Litt. 269, Har. & B. 
 Ed. See also Y. B. 3 Edw. II, Trin. 4 ch. 155 (S. S.) ; Y. B. 27 Hen. VI 
 2lb; Y, B. 7 Hen. VII 4; Verney v. Digman. Dyer 89b (i553) ; Wright v.
 
 PALMER V. BOArOD &C. ESSEX COUNTY 547 
 
 NICHOLAS F. PALMER, EXECUTOR, v. THE BOARD OF 
 
 CHOSEN FREEHOLDERS OF THE COUNTY 
 
 OF ESSEX 
 
 Supreme Court of New Jersey, 1908 
 yy N- J- L. 143 
 
 On the rule to show cause why a writ of mandamus should not 
 issue. 
 
 The facts established by the proofs taken under this rule are: 
 That the relator, on November 19, 1907, instituted an action in the 
 Essex County Circuit Court against the board of chosen freeholders 
 of the county of Essex, by the issue of a summons on that day re- 
 turnable December 6, 1907. Declaration was attached to and served 
 with the summons November 20, 1907. On December 10, 1907, 
 judgment by default for want of a plea was duly entered and execu- 
 tion has been issued thereon and returned unsatisfied by tlie sheriff. 
 
 After entry of the judgment application was made to tlie circuit 
 court to open it because improvidently entered, and because the 
 defendant had a legal defense in the statute of limitations, which 
 application v/as refused. Thereupon this rule was obtained^^ requir- 
 ing the said board of freeholders and tlie individual members thereof 
 to show cause why a peremptory or alternative writ of mandamus 
 should not issue commanding them to add to the amount to be raised 
 by taxation for current expenses, etc., for the coming year, an 
 amount sufficient to pay the execution, and commanding them to 
 order the county auditor and collector to pay to tlie petitioner the 
 amount of the execution out of any funds in their hands belonging to 
 the board of freeholders, 
 
 VooRHEES, J.: The issuance of the writ asked for is resisted 
 upon several grounds, each of which is an attack upon tlie judgment. 
 It is well settled that where a court of general jurisdiction has 
 jurisdiction of the subject matter and has acquired jurisdiction over 
 
 Wickam, Cro. Eliz. 468 (i595) ; Hyndes Case, 4 Coke 70b (1590); Rams- 
 bottom v. Buckhurst, 2 M. & S. 565 ( 1814) ; Croswell v. Byrnes, 9 Johns. 290 
 (1812) ; Selin v. Snyder, 7 Serg. & R. (Pa.) i66 (1821) ; In re Conrsen's Will, 
 4 N. J. Eq. 408 (1843) ; McCarthy v. Marsh, 5 N. Y. 263 (1851) ; Walker v. 
 Armour, 22 III. 658 (1859); Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742 
 (1867) ; Kemper v. Waverly, 81 111. 278 (1876) Ferguson v. Kumler, 25 Minn. 
 183 ( 1878) ; Kostenbader v. Kuebler, iqq Pa. 246. 48 At l. 972, 85 Am. St. 783 
 (1901). 
 
 "A judgment can not be collaterally attacked in proceedings for its 
 enforcement. Porter v. Rountree, in Ga. 369, 36 S. E. 761 (1900) ; Toomeyy . 
 Rosanskv. 11 Pa. Super. Ct. w6 (1800 "). and the principle is applicable to pro- 
 ceedings by mandamus to compel a municipal corporation to provide for the 
 payment of a judgment. Harshman v. Knox, 122 U. S. 306, 30 L. ed. 1152 
 (1886) ; Edmundson v. Independent School Dist., 98 Iowa 639, 67 N. W. 671, 
 60 Am St. 224 (1896) ; Bear v. Brunswick, 122 N. Car 434, 29 S. E. 719, 65 
 Am. St. 711 (1898) ; Tucker v. Iluhhcrt, 196 Fed. 849, 117 C. C. A. 365 (1912). 
 But it may be shown that the court was without jurisdiction. Moore v. Edge- 
 field, 32 Fed. 498 (1887) ; Brownsville v. Loagtie, 129 U. S. 493, 32 L. ed. 780 
 (1888).
 
 5-}S JUIX-.MKNT 
 
 the person of the dcfciidanl, its judgment is invincible against col- 
 lateral attack. It is only where there is lack of jurisdiction in one 
 or both of the above particulars that the judgment is void and may 
 be so treated in a collateral proceeding/*^ Wcstcott v. Danzcnbakcr, 
 I llalst. 13 J ; Win Dyke v. Bastcdo, 3 Gr. 224; Godfrey v. Myers, 
 3 Zab. 197; Iless V. Cole, Id. 116; National Docks Co. v. Pennsyl- 
 I'an'ia Railroad Co., 7 Dick. Ch. Rep. 58; Podesta v. Binns, 3 Robb. 
 
 Jurisdiction will be presumed in cases of domestic judgments of 
 courts of general jurisdiction.^^ Miller v. Diingan, 6 Vroom. 389. 
 
 The defendants insist that the record discloses upon its face 
 that tlie judgment was improvidcntly and prematurely entered, and 
 hence is void. The reasoning of the defendants on this subject is 
 that tlic statute of 1846 (Gen. vStat, pp. 408, 410) requires the 
 service of summons issued against a board of chosen freeholders 
 to be made "thirty days at least before tlie session of the court to 
 which such process is returnable," and, as such service was not made 
 in this case, the judgment is a nullity. There would be no merit in 
 this contention if the above statute was impliedly repealed by sec- 
 tion 52 of tlie Practice Act. Roache v. Jersey City, 11 Vroom 257. 
 
 But, assuming the premature entry of tlie judgment, that fact 
 does not render it void. It will stand until reversed or set aside.^^ 
 Hoey V. Aspell & Co., 33 Vroom 200. 
 
 **"'\Vhcre a court lias jurisdiction, it lias a right to decide every question 
 which occurs in the cause; and whether its decision be correct or otherwise, 
 its judgment, initil reversed, is regarded as binding in every other court. But, 
 if its acts without authority, its judgments and orders are regarded as nulHties. 
 They are not voidable, but simply void ; and form no bar to a recovery sought, 
 even prior to a reversal in opposition to them. They constitute no justifica- 
 tion ; and all persons concerned in executing such judgments or sentences, 
 are considered, in law, as trespassers." Elliott v. Peirsol, 1 Pet. (U. S.) 328 
 (1828) ; Lucy v. Dcas, 59 Fla. 552, 52 So. 515 (1910) ; Miller v. Rowan, 251 111. 
 344, 95 N. E. 2S5 (1911) ; Johnson v. North Star Lumber Co., 206 Fed. 624 
 (1913). See Brooke's Abr., Error 177, 187; Viner's Abr. Judgment, G., a.; 2() 
 Lib. Ass. 26; Y. B. 22 Edw. IV 30, 31. Compare Y. B. 19 Edw. IV 8; Gold 
 V. Strode, Carth. 148 (1690). 
 
 *' Accord: Foot v. Stevens, 17 Wend. (N. Y.) 483 (1837); Bridgeport v. 
 Blinn, 43 Conn. 274 (1876) ; Heri ng v. Chambers, lop, Pa. St. 172 (1883) ; 
 O'Connor v. Felix, 87 Hun (TTTYJ 179, 33 JN. Y. S. 1074, 67 N. T. St? 777 
 (1895) ; Hereford v. People, 197 111. 222, 64 N. E. 310 (1902) ; Menagcr v. Dc 
 Leonis, 140 Cal. 402, 73 Pac. 1052 (1903) ; Wilkins v. McCorkle, 112 Tenn. 688, 
 80 S. W. 834 (1904) ; Forrest v. Fey, 218 111. 740, 75 N. E. 789, i L. R. A. 
 (N. S.) 740 and note (1905); Flowers v. Reece, 92 Ark. 611, 123 S. W. 
 773 (1909). As to the application of the principle where the service of 
 process is constructive compare Cadmus v. Jackson, ^2 Pa. St. 20 5 (1866) ; 
 Adams v. Cowlcs, 95 Mo. 501, 8 b. W. 711, Am. St. 74 (1888)"^ Flardy v. 
 Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. 80 (1892) ; Sweeny v. Girolo, 154 
 Pa. St. 609, 26 Atl. 600 (1893) ; Hunter v. Ruff, 47 S. Car. 525, 25 S. E. 65, 
 s8 Am. St. 907 (1896) ; Co-operative Savings &c. Loan Assn. v. Mcintosh, 105 
 Iowa 697, 75 N. W. 520, with Hallett v. Salter, 13 How. Pr. (N. Y.) 43 (1856) ; 
 Galpin v. Page, 18 Wall. (U. S.) 350, 21 L. ed. 959 (1873) ; Ferguson v. Craiv- 
 ford, 86 N. Y. 609 (1881) ; Schissel v. Dickson, 129 Ind. 139, 28 N. E. 540 
 (1891) ; Button v. Smith, 10 App. Div. 566, 42 N. Y. S. 80, 4 N. Y. Ann. Cas. 
 25 (1896) ; Parsons v. JVcis, 144 Cal. 410, 77 Pac. 1007 (1904), and see Pen- 
 noyer v. Neff, 95 U. S. 714, 24 L. ed. 565 (1877) ; Martin v . Martin, 214 Pa. 389, 
 63 Atl 1026 (1906), as to nonresidents. ^ 
 
 "Accord : Myers v. Clark, 3 Watts & S. (Pa.) S35 ( 1842) ; IVhitzvell v.
 
 PALMER v. BOARD &C. ESSEX COUNTY 549 
 
 Irregularities in proceedings in court of general jurisdiction 
 as against collateral attack are cured by judgment {Apel v. Kelsey, 
 52 Ark. 341; Fischer v. Holmes, 123 Ind. 525), which is fatal to 
 the objection that in actions against boards of freeholders the statute 
 does not permit a declaration to be served with the summons. If 
 the provisions of section 95 of the Practice Act (Pamph. L. 1903, 
 P- 537) > include municipal corporations defendant, this objection 
 has no foundation. Dock v. Elicabethtown Manufacturing Co., 
 5 Vroom 312, and Cooper v. Cape May Point, 38 Vroom 437, are 
 cases which point to this construction. 
 
 Nor can it be successfully urged that because the declaration 
 on its face exhibits a cause of action barred by the statute of limita- 
 tions, it is equivalent to stating no cause of action whatever. Such 
 is the contention of the defendant. The statute does not obliterate 
 the cause of action. This defense may be waived. To be availed 
 of it must be pleaded.^^ Christie v. Bridgman, 6 Dick. Ch. Rep. 331 ; 
 Peer v. Cookerotv, 2 Beas. 136; West Hoboken v. Syms, 20 Vroom 
 546. 
 
 These are matters that should be addressed to the court in which 
 the judgment was entered and that were correctly decided by it in 
 refusing to open judgment, and, while we have considered them, 
 they can not be availed of as a means of collateral attack upon the 
 recovery. ®° 
 
 Rule absolute. 
 
 Barhier, 7 Cal. 54 (1857) ; White v. Croiv, no U. S. 183, 28 L. ed. 113 (1883) : 
 Wells V. Atkins, 68 Vt. 191, 34 Atl. 694, 54 Am. St. 880 (1896) ; Brezuing Asso- 
 ciation V. McGozvan, 49 La. Ann. 630, 21 So. 766 (1897). 
 
 ^'Accord: Cox v. Thomas, 9 Grat. (Va.) 323 (1852). 
 
 '"Accord: Rex v. Vincent, i Str. 481 (1721) ; Duchess of Kingston's Case, 
 20 St. Tr. 335 (1776) ; Commonwealth v. Morrison, 4 Bibb. (Ky.) 336 (1816) ; 
 ^Orphans' Court v Groff, 14 Serg. & R. (Pa .) 181 (1826) ; Elliott v. Pcirsol, 
 I Fet. (U. b.) z^'S, 7 L. ed. 164 (1828) ; Buell v. Cross, 4 Ohio, 327 (1831) ; 
 Vandyke v. Bastedo, 15 N. J. L. 224 (1836) ; Voorhees v. Bank of U. S., 10 
 Pet. (U. S.) 449, 9 L. ed. 490 (1836) ; Wright v. Marsh, 2 G. Gr. (Iowa) 94 
 (1849) ; Bnckmastcr v. Rider, 12 111. 207 (1850) ; Bil lings v. Russell. 2^ Pa^SL 
 189. 6 2 Am. Dec. 330 (1854) ; Morrozv v. Weed, 4 Iowa yj, 66 Am. Dec. 122 
 (1856) ; Sears v. Terry, 26 Conn. 273 (1857); Hendrick v. Whittemore, 105 
 Mass. 23 (1870) ; Martin v. McLean, 49 Mo. 361 (1872) ; Lancaster v. Wilson, 
 27 Grat. (Va.) 624 (1876) ; Hume v. Little Flairock Draining Assn, 72 Ind. 
 499 (1880) ; Ottersonv . Middleton. 102 Pa. St. 78 (i8g -^) ; Hunting v. Bhm, 
 143 N. Y. 511, 38 N. E. 716 (1894) ^Pcarse v. Hill, 163 Mass. 493, 40 N. E. 
 765 (189s) ; Corey v. Morrill, 71 Vt. 51, 42 Atl. 976 (1898) ; Hall v. Sanntry, 
 72 Minn. 420, 75 N. W. 720, 71 Am. St. 497 (1898) ; In re McNeil's Estate, 
 15s Cal. 2,32,, 100 Pac. 1086 (1909) ; Bickford v. Bickford, 74 N. H. 448, 69 Atl. 
 579 (1908) ; Point Pleasant v. Greenlee, 63 W. Va. 207, 60 S. E. 601, 129 Am. St. 
 971 (1907) ; Smith V. Young, 136 Mo. App. 65, 117 S. W. 628 (1908) ; In re 
 Jenkins, J32 App. Div. 339, 117 N. Y. S. 74 (1909) ; Pozvelly Scranton, 2 27 
 Pa. 604. 76 Atl- qo j; (1910); Clark v. Atlantic City, 180 Fed. 598 (1910) ; 
 Continental fertiliser Co. v. Pass, 7 Ga. App. 721, 67 S. E. 1052 (1910) ; Lucy 
 V. Deas, 59 Fla. 552. 52 So. 515 (1910) ; Martin v. McCall, 247 111. 484, 93 
 N. E. 418 (1910); Morris v. Robbins, 83 Kans. 335, in Pac. 470 (1910) ; 
 Bailey v. Hopkins, 152 N. Car. 748, 67 S. E. 569 (1910) ; Welch v. Lacroix, 
 III Maine 324, 89 Atl. 69 (1913) ; Gimby v. Cooper, 177 Mo. App. 354, 164 
 S. W. 152 (1914)- 
 
 If after judgment another court may in another suit inquire into the 
 errors and irregularities in the prior proceedings, "a judgment, though un-
 
 550 juncxiEKT 
 
 I'.ARPr. MINTON 
 
 SurRRArE Court of North Carot.ixa, 1905 
 
 138 A". Car. 202 
 
 Action by Dorinda Earp a.c;ainst L. L. Minton, heard by Judge 
 \\*. R. Allen and a jury, at tlie June term, 1904, of tlie Superior 
 Court of Wilkes County. 
 
 This was a civil action tried in the superior court upon appeal 
 from the judgment of a justice of the peace. The plaintiff alleges 
 that she is the owner of a cow and that the defendant is in wrongful 
 and unlawful possession of her. The defendant admits the pos- 
 session of the cow, but denies that his possession is wrongful and 
 unlawful and avers that he is an innocent purchaser for value. It 
 appears from the record that tlie defendant purchased the cow from 
 one Cranor, who came into possession of her by virtue of a judg- 
 ment secured by him in an action brought before a justice of the 
 peace against Dorinda Earp, the plaintiff in this action, to recover 
 possession of the cow. In the present action this judgment was 
 introduced and relied on by defendant to establish his right to the 
 possession of the cow. 
 
 The court submitted the following issues: i. Is the plaintiff 
 owner of the property in dispute? Ans. Yes. 2. What was the 
 value of the cow? Ans. Twenty-five dollars. 3. Was the judgment 
 upon which the defendant relies procured by fraud? Ans. Yes. 
 
 From a judgment for the plaintiff the defendant appealed. 
 
 Browx, J. : The defendant excepts to the submission of the 
 third issue as to fraud in the procurement of the judgment in Cranor 
 V. Earp and to the admission of certain testimony and parts of 
 his Honor's charge relating to that issue. The defendant's ground 
 of objection to the issue, the evidence and the charge is the same; 
 that is that a judgment can not be collaterally attacked for fraud, but 
 it must be impeached, if at all, by an independent action.^^ We 
 do not deem it necessary to consider these exceptions separately. 
 
 reversed and irreversible, would no longer be a final adjudication of the rights 
 of litigants, but the starting pomt from which a new litigation would spring 
 up acts of limitation would become useless and nugatory; purchasers on the 
 faith of judicial process would find no protection; every right established by 
 a judgment would be insecure and uncertain and a cloud would rest upon 
 ever\- title." Lancaster v. Wilson, 27 Gra.t. (Va.) 624 (1876). "Commentators 
 upon it have said, the res judicata renders white that which is black, and 
 straight that which is crooked. Facit cxcurvo rectum, ex alho nigrum." Per 
 Campbell, J., in Jeter v. Heweft, 22 How. (U. S.) 352, 16 L. ed. 345 (1850). 
 
 But a proceeding void on the face of the record may be attacked collater- 
 ally. A liens v. Lynn. 216 Pa. 604 66 At l. 81, 10 L. R. A. "(N. S.) 463n, 116 Am. 
 St. 791 (1907). "Upon collateral attack the judgment will be set aside, gen- 
 erally speaking, for but one of three reasons: lack of jurisdiction of the 
 person, lack of jurisdiction of the subject-matter of the action, or an absolute 
 lack of juri.=;diction to render such judgment as the one given." Baldwin v. 
 Foster, 157 Cal. 643, 108 Pac. 714 (1910). 
 
 '^A code substitute for a bill of review or a bill to impeach for fraud. 
 Peterson v. Vann, 83 N. Car. 118 (1880).
 
 EARP V. MINTON 55 1 
 
 We think that his Honor committed error in submitting the issue 
 to the jury, and it follows that the admission of evidence and his 
 Honor's charge thereto are likewise erroneous. It is well settled 
 by this court that it is not permissible for a party to attack a judg- 
 ment in a collateral proceeding on account of fraud. When a judg- 
 ment is attacked for fraud the proper remedy is by motion in the 
 cause, if the action is then pending, but if it has been ended by final 
 judgment, an independent action must be instituted. Carter v. Roun- 
 tree, 109 N. Car. 29; Smith v. Gray, ii6 N. Car. 311; Burgess v. 
 Kirhy,, 94 N. Car. 575. 
 
 In the case before us the judgment is attacked for fraud in its 
 procurement. At most, it is only voidable for an irregularity not 
 apparent. It is not such an irregularity as to render the judgment 
 absolutely void, hence it can not be attacked collaterally, but it must 
 be impeached, if at all, by a separate proceeding instituted for that 
 purpose. Burgess v. Kirhy, supra; Neville v. Pope, 95 N. Car. 346; 
 Brittain v. Mull, 99 N. Car. 483. If it is contended that the summons 
 in the case of Cranor v. Earp was improperly or irregularly served, 
 or that defendant was sick and could not attend the trial, her remedy 
 was to move in that cause before the justice to set aside the judg- 
 ment. 
 
 We are of opinion that in submitting the issue as to fraud in 
 the procurement of the judgment in Cranor v. Earp and admitting 
 evidence and instructing the jury in regard thereto, his Honor com- 
 mitted error. ^^ 
 
 New trial. 
 
 ^"Accord: Bush v. Sheldon, I Day (Conn.) 170 (1803) ; Sims v. Slaciwi, 
 3 Cranch (U. S.) 300 (1806) ; Peck v. Woodhridge, 3 Day (Conn.) 30 (1808) ; 
 Homer v. Fish, 18 Mass. 435, 11 Am. Dec. 218 (1823) ; McRae v. Mattoon, 30 
 Mass. 53 (1832) ; Anderson v. Anderson, 8 Ohio 108 (1837) ; Tarb ox v. 
 Hrn^iSj _ft Watt<; 3 98, 37 Am. Dec. 478 (1837) ; Granger v. Clark, 22 Maine 128 
 (1842) ; Greene v. Greene, 68 Mass. 361, 61 Am. Dec. 454 (1854) ; Mason v. 
 Messenger, 17 Iowa 261 (1864) ; Christtnas v. Russel, ^2 U. S. 290, 18 L. ed. 
 475 (1866) ; The Acorn, 2 Abb. 434, Fed. Cas. No. 29 (1870) ; Simpson v. 
 Kimherlin, 12 Kans. 579 (1874); Krekeler v. Ritter, 62 N. Y. 372 (1875); 
 Blanchard v. Webster, 62 N. H. 467 (1883) ; Otterson v. Middleton. 102 P a. 
 78 (188 3 ') ; Sherburne v. Shephard, 142 Mass. 141, 7 N. E. 719 (i885) ; 
 Stewart v. Stitsher, 83 Ga. 297, 9 S. E. 1041 (1889) ; O.g/g v. Baker, 137 P a. 
 St. -^78 ^0 Atl. 998, 21 Am. St. 886 (1890) ; Murphy v. trance, loi Mo. 151, 
 13 S. WT 817 (1890) ; Edgerton v. Edgcrton, 12 Mont. 122, 29 Pac. 966, 16 
 L. R. A. 94, 33 Am. St. 557 (1892) ; Nevitt v. First Nat. Bk., 91 Hun 43, 36 
 N. Y. S. 294, 71 N. Y. St. 376 (1895) ; Langdon v. Blackburn, 109 Cal. 19, 
 41 Pac. 814 (1895) ; Bowman v. Wilson, 64 111. App. y^ (1895) ; Kansas City 
 R. Co. V. Morgan, 76 Fed. 429 (1896) ; Sanders v. Price, 56 S. Car. i, 2,2> S. E. 
 731 (1899) ; People v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399, 773 (1901) ; 
 Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325, 66 S. W. 933 (1901) ; 
 Logan v. Central Iron Co., 139 Ala. 548, 36 So. 729 (1903) ; Oster v. Broe, 161 
 Ind. 113, 64 N. E. 918 (lon^^ : C^nmden Nnt. Bk. V. Fries-Breslin Co.. 214. Pa . 
 :^Q=i, 6 3 Atl. 1022 (109 6') ; Mahoncy v. State Insurance Co., 133 Iowa 570, no 
 N. W. 1041 (1907); Ulber v. Dunn, 143 Iowa 260, 119 N. W. 269 (1909) ; 
 Lang v. Dunn, 145 Iowa 363, 124 N. W. 192 (1910) ; Morris v. Traveler's 
 Insurance Co., 189 Fed. 211 (1911). Contra: Hall v. Hamlin, 2 y/atts (Pa. ) 
 354 (1834) ; Jackson v. Sumnierville l^ Pa. St. 359 (18.S 0) : Mandeville v. 
 Reynolds, 68 N. Y. .S28 (1877): Phehs v. Benson, 161 Fa. St. 418 , 29 Atl. 86 
 (1894) ; Pray v. Jenkins, 47 Kans. 599, 28 Pac. 716 (1892) ; Saper v. Me ad, 
 164 Pa. 12=;. ^Q Atl. 284 (1894). In some cases it has been held that the judg-
 
 55- JUDGMENT 
 
 CROUSIC t: McVICAR 
 
 Court of Atpkals ov Ni:\v York, 1912 
 207 iV. 1'. 213 
 
 Appeal from a judgment of the appellate division of the Supreme 
 Court in the fourth judicial department, entered March 17, 191 1, 
 modifying and affirming as modihcd a judgment in favor of defend- 
 ants entered upon a dismissal of the complaint by the court on trial 
 at special term. The nature of the action and the facts, so far as 
 material, are stated in the opinion.^^ 
 
 CuLLEX, C. J. : One Crouse died on the twenty-first day of No- 
 vember, 1892, leaving a last will and testament whereby, after many 
 legacies, he bequeathed a large residuary estate of personalty to 
 the persons who would be entitled to take the same under the law if 
 he had died intestate. The plaintiff and certain others, first cousins 
 of the testator, were his next of kin, unless the defendant Dorothea 
 Edgarita Crouse, who was then an infant aged six years, was his 
 legitimate child. The claim was made on behalf of said infant that 
 she was such child, and by the defendant Eula H. Potulicka that she 
 was tlie widow of said testator. In this state of conflicting claims 
 the executors of the will of the deceased brought an action in the 
 Supreme Court against all the persons claiming any portion of the 
 estate under the will, asking that it be determined who were entitled 
 to the estate. The complaint in this action does not set forth in full 
 the judgment roll in the executors' action, but it does state the object 
 of the action and that the issue in it was as to the status of the de- 
 fendant Dorothea. It alleges that the action was brought on for 
 trial, when the parties entered into stipulation by which it was agreed 
 that the conflicting claimants, the first cousins on one side and Dor- 
 othea on the other, should share the residuary estate equally and 
 that judgment to that effect should be had. In accordance w^ith tlie 
 stipulation, which the guardian was authorized by the court to make 
 on behalf of the infant, judgment was entered on the 19th day of 
 February, 1895, which decreed that the residuary estate be divided 
 as stipulated (certain deductions being made from the infant's share 
 
 ment is impeachable collaterally, where the fraud is practiced in the act of 
 obtaining judpment; where the court is misled. Abonloff v. Oppenhcimer, 
 L. R. ID Q. B. Div. 295 (1883); Pfiffncr v. Krapfel, 28 Iowa 27 (1869); 
 Amador C. & M. Co. v. Mitchell, 59 Cal. 168 (1S81) ; Richardson v. Trimble, 
 38 Hun (X. Y.) 409, 17 Abb. N. Cas. 210 (1886) ; First Nat. Bk. v. Cunning- 
 ham, 48 Fed. 510 (1891) ; Daniels v. Benedict, 50 Fed. 347 (1892) ; Cotterell 
 V. Koon, 151 Ind. 182, 51 N. E. 235 (1898); Wondcrly v. Lafayette Co., 150 
 Mo. 635, 51 S. \V. 745, 45 L. R. A. 386, 73 Am. St. 474 (1899) ; Fort Jefferson 
 Imp. Co. v. Green, 112 Ky. 85, 65 S. W. 161 (1901) ; Cooky v. Barker, 122 
 Iowa 440, 98 N. W. 289, loi Am. St. 276 ( 1904) ; Mahoney v. State Insurance Co., 
 133 Iowa 570, no N. W. 1041 (1907) ; Flail v. Cox, 104 Ark. 303, 149 S. W. 80 
 (1912). Contra: Sherburne v. Shcpard, 142 Mass. 141, 7 N. E. 719 (1886); 
 Carr v. Miner, 42 111. 179 (1866) ; Cody v. Cody, 98 Wis. 445, 74 N. \V. 217 
 (1898) ; Davis v. Davis, 61 Maine 395 (1873). 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted.
 
 CROUSE V. M VICAR 553 
 
 in favor of third parties, details of which are immaterial in this 
 controversy). A copy of that judgment is annexed to the complaint 
 and forms part thereof. The complaint then charges that the claim 
 on behalf of Dorothea was not only false but fraudulent and made 
 in bad faith, and that it was intended to support it by the perjury of 
 certain witnesses who had been suborned for the purpose; that 
 plaintiff did not know at the time and had no means of knowing that 
 the claim was fraudulent, but supposed it w^as made in good faith, 
 and that relying on the false statements made in various stages of 
 the suit he made the compromise and entered into the stipulation 
 above recited. He asks as relief that the judgment be set aside and 
 that the defendant Dorothea restore to him the moneys awarded to 
 her out of his share. 
 
 I think the courts below were right in holding that the complaint 
 did not state facts sufficient to constitute a cause of action. The 
 complaint was evidently framed, and the appeal has been argued, 
 as if the action were to set aside for fraud merely an agreement to 
 compromise and to recover money paid thereunder. But this is a 
 mistaken view. There is a solemm judgment rendered in one action 
 which it is sought to attack by another. The court whose decree is 
 assailed had jurisdiction of the subject-matter of the action, of the 
 parties thereto and jurisdiction to render a judgment distributing 
 the estate of the decedent. It matters not whether that judgment was 
 right or wrong. Until reversed on appeal or set aside it was con- 
 clusive. Nor does it matter when the cause was brought on for 
 trial, instead of hearing testimony the court made its decree on the 
 stipulation of the parties. A judgment by default is as conclusive as 
 any other judgment, and a judgment rendered on the express stipu- 
 lation of the parties can hardly be of less effect than one rendered 
 on the failure of a party to appear. Parties may by their stipulation 
 make the law of the case which the courts may and at times are 
 bound to enforce. (In re N. Y., Lackawanna & W. R. R. Co-, 98 
 N.Y.447). 
 
 The judgment sought to be set aside was therefore subject to 
 the same and only to the same attack that could be made on any other 
 judgment. It is doubtless true that a judgment can be set aside for 
 fraud by an action brought for that purpose, but it is settled law 
 (save possibly in one or two jurisdictions) that the fraud for which 
 a judgment can be impeached must be in some matter other than the 
 issue in controversy in tlie action. By Professor Pomeroy it is said 
 (Equity Jurisprudence, section 1361) : "Equity will not restrain a 
 legal action or judgment when the controversy will be decided by 
 the court of equity upon a ground equally available at law, unless 
 the party invoking the aid of equity can show some special equitable 
 feature or ground of relief, and, in the case assumed, this special 
 feature or ground must necessarily be something connected with the 
 mode of trying and deciding the legal action, and not with the cause 
 of action or the defense themselves, "^^ In United States v. Throck- 
 
 "^Accord: Bateman v. fVilloe, i Sch. & L. 210 (1803); Prothero v. For- 
 tnan, 2 Swanst. 227 (1818) ; Emerson v. Udall, 13 Vt. 477, 27 Am. Dec. 604
 
 --^ JUDGMENT 
 
 viorton, 98 U. S. 61, 66, it was held: "On the other hand, the doc- 
 trine is equally well settled that the court will not set aside a judg- 
 ment because it was founded on a fraudulent instrument, or 
 perjured evidence, or for any matter which was actually presented 
 and considered in the judgment assailed." (See, also, Black on Judg- 
 ments, section 372.) In Rose v. Wood, 70 N, Y. 8, the complaint 
 charged that the defendants, combining with oUiers to cheat and 
 defraud tlie plaintiff by perjury and false testimony, obtained a 
 judgment setting aside a deed and asked that the judgment so ob- 
 tained might itself be set aside for the fraud and perjury. The com- 
 jMaint was held on demurrer not to state a cause of action. Mayor, 
 etc., of Xeiv York v. Brady, 115 N. Y. 599, is to the same effect. 
 In the latter case is to be found an extensive review of the author- 
 ities. In Smith v. Lezvis, 3 Johns. (N. Y.) 157, it was held that an 
 action would not lie for suborning witness to testify falsely by which 
 the plaintiff was cast in judgment. The reason of the rule is stated 
 l>y Chancellor Kent, then chief justice, that otherwise there could be 
 no final determination of a suit. So here, if in this action the plaintiff 
 should be successful, thereafter the defendant might sue to set aside 
 the adverse judgment on the ground that plaintiff's claim had been 
 made in bad faith and supported by perjury. The principle on 
 which the rule rests is the oft-repeated maxim. Interest republicae 
 lit sit finis liiiiim. It does not follow that a defeated litigant is with- 
 out redress for perjury. He can apply in the original action and in a 
 proper case obtain relief. 
 
 The fact that the decree now sought to be vacated rests on 
 stipulation does not differentiate it in principle from one where the 
 
 C1841) ; Warner v. Conant, 24 Vt. 351, 58 Am. Dec. 178 (1852) ; Holmes v. 
 Stateler. ^7 111. 209 (1870); Hetsell v Bents S Phila. (Pa.) 261 (1871); 
 Tyler v. Hammerslcy, 44 Conn. 419, 26 Am. Rep. 479 (US//!); Walker v. 
 Shreve, 87 111. 474 (1877); Holmes V. Steele, 28 N. J. Eq. 173 (1877); 
 Lebanon Miit. Ins. Co. v. Erh, i Sad. (Pa.) 181, i Atl. 559, 57i (1885); 
 Harding v. Hawkins, 141 111. 572, 31 N. E. 307, 33 Am. St. 347 (1889) ; 
 G aszam v Rrndinn. 202 Pa. 2^1. m Atl. looo (1902) ; Stewart v. Wood, 86 
 Ark. 504, III S. \V. 983 (1908) ; Zetlin v. ZctUn, 202 Mass. 205, 88 N. E. 762 
 (1909); Mushbaugh v. East Peoria, 260 111. 27, 102 N. E. 1027 (1913) ; 
 Bnchler v. Black, 213 Fed. 880 (1914)- Contra: Laun v. Kipp, 155 Wis. 347, 
 145 N. \V. 183 (1914) ; Zohrlant v. Meugelberg, 158 Wis. 392, 148 N. W. 314, 
 149 N. W. 280 (1914) ; De Soto Coal Min. &-c. Co. v. Hill, 188 Ala. 667, 65 
 So. 988 (1914). And see Cole v. Langford, L. R. (1898) 2 Q. B. 36; Birch v. 
 Birch, L. R. (1902) Probate 130. 
 
 It is frequently said that the fraud that will justify equitable interference 
 with a judgment or decree must be that which occurs in the procuring of the 
 judgment by which the defendant is deprived of his day in court, or the court 
 itself is imposed upon. Patch v. Ward, L. R. 3 Ch. App. 203 (1867) ; Ellis v. 
 Kelly, 6 Bush (Kv.) 621 (1871); United States v. Throckmorton, 98 U. S. 
 61, 25 L. ed. 93 (1878) ; Rnss v. Wood, 70 N. Y. 8 (1877) ; Mayor of City of 
 Xew York v. Brady, 115 N. Y. S99, 22 N. E. 237 (1889) ; Weaver v. Vande- 
 vanter, 84 Tex. 691, 19 S. W. 889 (1892); Piatt v. Threadgill, 80 Fed. 192 
 (1897) ; Parsons v. Weis, 144 Cal. 410, 77 Pac. 1007 (1904) ; Pratt v. Griffin, 
 223 111. 349. 79 N. E. 102 (1906) ; Wihon v. Anthony, 72 N. J. Eq. 836, 66 Atl. 
 907 (1907) ; Cantwell v. Kimmerle, 179 111. App. 66 (1913) ; Fricbe v. Elder, 
 181 Ind. 597, 105 N. E. 151 (1914) ; Hollister v. Sobra, 264 HI- 535, 106 N. E. 
 507 (I9M)-
 
 DUNLAP V. GLIDDEN 555 
 
 judgment was rendered after hearing evidence.^^ The stipulation 
 acted as a substitute for evidence. Each party being afraid of the 
 effect of the evidence of the adverse party stipulated that the adver- 
 sary's claim should prevail to the extent of one-half. No fraud is 
 charged except in statements made as to the issue itself. If perjury 
 in that respect made on the witness stand and inducing a court or 
 jury to render an erroneous decision would not support an action to 
 set aside the judgment, it is difficult to see why it should be of more 
 moment because it frightened the parties into a compromise. 
 Judgment affirmed. 
 
 DUNLAP V. GLIDDEN AND OTHERS 
 Supreme Judicial Court of Maine, 1850 
 
 31 Maine 435 
 
 Two actions on the case, each charging, tliat Dunlap was the 
 just and lawful owner of a lot of land; that said Glidden, however, 
 had sued out a writ of entry for the land against Dunlap, and in 
 that action had obtained a verdict and judgment for the same; that 
 said verdict was obtained by the fraud of Glidden and by false 
 testimony of two of the defendants and of other witnesses, under 
 a conspiracy among all the defendants, by fraud and perjury, to 
 deprive and cheat the plaintiff of his said land. 
 
 The defendants protesting, that the fraud and conspiracy are 
 falsely charged, pleaded that the plaintiff is estopped, by the said 
 judgment, from proving his allegations. 
 
 The plaintiff replies, that he ought not to be estopped, etc., 
 because neither the parties nor the cause of action in the former 
 suit were the same as in tliis action, and re-asserts, that said judg- 
 ment was obtained by fraud, perjury and conspiracy as in the writ 
 alleged. To that replication the defendants demur generally, and 
 there is a joinder in the demurrer.^® 
 
 ^'Accord : Pozvell v. Shank, 3, Watts. (Pa.) 2%^ (18-^4) ; Gifford v. Thorn, g 
 N. J. Eq. 702 (1^55; ; Hanscom v. Hcwes, 78 Mass. 334 (1859) ; Donnelly v. 
 Wilcox, 113 N. Car. 408, 18 S. E. 339 (1893); In re South American & 
 Mex. Co., L. R. (1895) i Ch. 2)7', Adler v. Van Kirk Land & Const. Co., 
 114 Ala. 551 (1896) ; Kidd v. Huff, 105 Ga. 209, 31 S. E. 430 (1898) ; Harding 
 V. Harding, 198 U. S. 317, 25 Sup. Ct. 679, 49 L. ed. 1066 (1904) ; South Penn. 
 Oil Co. v. Calf Creek Oil &c. Co., 140 Fed. 507 (1905) ; Commonwealth v. 
 Churchill, 131 Ky. 251, 115 S. W. 189 (1909) ; Lewis v. St. Louis L &c. R. Co., 
 107 Ark. 41, 154 S. W. 198 (1913). Contra: Lamb v. Gatlin, 2 Dev. & B. 
 (N. Car. Eq.) 2>7 (1838) ; Jenkins v. Robertson, L. R. (1867) i H. L. Scotch 
 117, and compare IVadhams v. Gay, 7:^ 111. 415 (1874) ; Gay v. Parpart, 106 
 U. S. 679, I Sup. Ct. 456, 27 L. ed. 256 (1882) ; Lawrence Mfg. Co. v. Janes- 
 ville Mills, 138 U. S. 552, 11 Sup. Ct. 402, 34 L. ed. 1005 (1891) ; Carr v. 
 Illinois Cent. R. Co., 180 Ala. 159, 60 So. 277, 43 L. R. A. (N. S.) 6340 (1912). 
 
 "'The argument of counsel and part of the opinion of the court are 
 omitted.
 
 556 JUDGMENT 
 
 Wells, J.: The cause of action in these suits is tlie same, but 
 the same defendants are not all joined in each of them. The declara- 
 tions allege in substance, that Benjamin Gliddcn, Jr., commenced 
 an action against the plaintiff to recover several parcels of real 
 estate, iJiat a verdict was rendered in that action in favor of Glidden, 
 and judi::ment was entered on the verdict, that all of the defend- 
 ants fraudulentl)'- conspired together to defeat the plaintiff's title, 
 and to aid Glidden in his suit, and that by the false testimony of 
 two of the defendants and others, the verdict was obtained against 
 tlie plaintiff. 
 
 These actions are brought to recover damages arising from the 
 judgment obtained by Glidden against the plaintiff, and if they 
 should be sustained, the record would present the anomaly of a 
 judgment remaining in full force, and of another, in which dam- 
 ages were rendered on account of the existence of the former one. 
 B\it the judgment against the plaintiff, so long as it remains in 
 force, must be considered as true and just. He can not be permitted 
 to aver the falsity of that judgment, as the ground for the recovery 
 of damages. It constitutes in itself a clear and unequivocal denial 
 of his allegations. He says, that by the fraud and conspiracy of the 
 defendants, he has lost the land, but the judgment imports that it 
 was properly rendered in the ordinary course of judicial pro- 
 ceedings. * * * 
 
 The plaintiff can not recover upon the ground alleged of false 
 testimony given by some of the defendants. For an action will not 
 lie against a witness for giving false testimony in another case. 
 Dam port v. Sympson, Cro. Eliz. 520; Eyers v. Sedgwicke, Cro. 
 Jac. 601." 
 
 If the judgment was obtained, as is contended, by fraud and 
 periur\% the plaintiff has ample remedy by law. The court, which 
 rendered the judgment, upon proof of these allegations, would be 
 bound to grant a new trial, so that upon a further investigation, 
 justice might be done.^ The witnesses, if guilty, might be indicted 
 
 ^'"Accord: Harding v. Bodman, Hutton II (1617) ; Smith v. Lewis, 3 
 Johns. (X. Y.) 157, 3 Am. Dec. 460 (1808); Cunningham v. Brown, 18 Vt. 
 123, 46 Am. Dec. 140 (1846); Lyford v. Demerit, 32 N. H. 234 (1855); 
 Engstrom v. Sherburne, 137 Mass. 153 (1884) ; Castriqne v. Behrens, 3 El. & 
 El. 710 (1861) ; Buffer v. Allen, L. R. 2 Exch. 15 (1866) ; Horner v. Schin- 
 stock, 80 Kans. 136, loi Tac. 996 (1909). 
 
 *A new trial on the ground of perjury is discretionary. Fabriliits v. Cock, 
 3 Burr. 1771 (176^) : St ntthers^y. IVagn a:. 6 Phila. (EajL-262 (1867); 
 Shnnahan w Insurance C 'o.,£ Ta7Sup er.jit . 6? ('1807 '). It has been said that a 
 new trial will not be granted on this ground until after the perjured witness has 
 been convicted, or is dead. Dyche v. Pation, 3 Jones' Eq. (N. Car.) 332 
 (i8=;7) ; Tovcy v. Young, Prec. Ch. 193 (1702) ; Whcatley v. Edwards, Lofft. 
 87 (1772) ; Benfield v. Petrie. 3 Dougl. 24 (1781) ; Warwick v. Bruce, 4 M. & 
 .S 140 (1815) ; Secley v. Mayhczv, 4 Bing. 561 (1828) ; Great Falls M. Co. v. 
 Ma'.hcs, 5 N. H. 574 (1832) ; Holtz v. Schmidt, 12 Jones & Sp. (N. Y.) 327, 
 44 N. Y. Super. Ct. 327 (1878). "Perhaps the rule laid down in these cases 
 may be too strict and exacting for all circumstances, but it is obviously 
 foimdcd in wise policy." Dexter v. Handy, 13 R. I. 474 (1881). A convic- 
 tion will not necessarily lead to a new trial if the court is otherwise satisfied 
 with the verdict. Davies v. Breckncll, L. R. 3 P. & D. 88 (1873).
 
 DUNLAP V. GLIDDEN 557 
 
 for perjury, and so might all those be indicted, who inilawfuUy con- 
 spired together to deprive the plaintiff of his rights, and their 
 conviction would afford the most convincing evidence, that a review 
 of the action should take place. 
 
 It is contended on the part of the plaintiff, that the pleas of 
 the defendants are bad. But it does not become necessary to decide 
 that question, for the declarations being bad, judgment must be 
 rendered against the plaintiff as the party, who committed the first 
 error in pleading. 
 
 The declarations in both actions are adjudged bad.^ 
 
 -False or perjured testimony is not, alone, ground for impeaching a 
 judgment collaterally. Biilkley v. Stczvdrt, i Day (Conn.) 130, 2 Am. Dec. 57 
 (1803) ; Peck V. IVoodbridge, 3 Day (Conn.) 30 (1808); S^nith v. Lewis, 3 
 Johns. (N. Y.) 157, 3 Am. Dec. 469 (1808) ; Tipton v. Gardner, 4 Ad. & El. 
 317 (1835) ; Pilmore v. Hood, 8 Scott, 180 (1839) ; Abbott v. Bahr, 3 Finn. 
 (Wis.) 193 (1851); Demerit v. Lyford, 27 N. H. 541 (1853); Greene v. 
 Greene, 68 Mass. 361, 61 Am. Dec. 4=^4 (1854) ; Dilling v. Murray, 6 Ind. 324, 
 63 Am. Dec. 383 (1855) ; Lyford v. Dcmcrritt, 32 N. H. 234 (1855) ; Wood- 
 rozv V. O'Conncr, 28 Vt. 776 (1856) ; Field v. Sanderson, 34 Mo. 542, 86 Am. 
 Dec. 124 (1864) ; Elkins v. Page, 45 N. H. 310 (1864) ; Cottle v. Cole, 20 Iowa 
 481 (1S66) ; Vance v. Burhank, loi U. S. 514, 25 L. ed. 929 (1879) ; New York 
 Cent. R. Co. v. Harrold, 65 How. Pr. (N. Y.) 89 (1883) ; Lebanon MutJLns. 
 Co.v. Erb,2Chest.Co. (Pa.) S 3.^ (188.S) ; Burton v. Perry, 146 111771, 34 N. E. 
 60 (1893) ; United States v. Chnng Shee, 71 Fed. 277 (1S95) ; Baker v. Wads- 
 worth, L. J. (N. S.) 67 Q. B. Div. 301 (1898) ; Maddox v. Summerlin, 92 Tex. 
 483, 49 S. W. 1033, 50 S. W. 567 (1899) ; IVord v. Schozv, 29 Tex. Civ. App. 120, 
 68 S. W. 192 (1902) ; El Capitan Co. v. Lees, 13 N. M. 407, 86 Pac. 924 
 (1906) ; Bleakley v. Barclay, 75 Kans. 462, 89 Pac. 906, 10 L. R. A. (N. S.) 
 230 (1907). Nor, by the weight of authority, is such testimony, alone, ground 
 for equitable relief. Stnith v. Lowry, i Johns. Ch. (N. Y.) 320 (1814) ; 
 Vaughn v. Johnson, 9 N. J. Eq. 173 (1852) ; Boston & W. R. Co. v. Spar- 
 hawk, 83 Mass. 448, 79 Am. Dec. 750 (1861) ; Ross v. Wood, 70 N. Y. 8 
 (1877) ; United States V. Throckmorton, 98 U. S. 61, 23 L. ed. 93 (1878) ; 
 Floiver v. Lloyd, L. R. 10 Ch. D. 327 (1878) ; Mctcalf v. Gilmore, 59 N. H. 
 417, 47 Am. Rep. 217 (1879) • Koiint::;'s Abbe.al (Pa.) 36 Phila. Leg. In t. 
 186 (1879) ; Pico V. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. K- A. 
 336, 25 Am. St. 159 (1891) ; Codde v. Mahiat, 109 Mich. 186, 66 N. W. 1093 
 (1896) ; United States v. Gleeson, 90 Fed. 778 (1898) ; McDougall v. Walling, 
 21 Wash. 478, 58 Pac. 669, 75 Am. St. 849 (1899) ; Maryland & Co. v. Marney, 
 91 Md. 360, 46 Atl. 1077 (1900) ; Sohler v. Sohler, 135 Cal. 323 (1902) ; 
 Wood V. Davis, 108 Fed. 130 (1900) ; Evans v. IVoodsw'orth, 213 III. 404, 7^ 
 N. E. 1082 (1905) ; French v. Raymond, 82 Vt. 156, 72 Atl. 324 (1909) ; Ljicy 
 V. Deas, 59 Fla. 552, 52 So. 515 (1910). Contra: Burgess v. Lovengood, 55 
 N. Car. (2 Jones) 457 (1856) ; Kersey v. Rash, 3 Del. Ch. 321 (1869), semble; 
 Stowell V. Eldred, 26 Wis. 504 (1870) ; Graver v. Faurot, 76 Fed. 257 (1896) ; 
 Davis V. Jones (Tex.), 149 S. W. 727 (1912) ; El Reno F. I. Co. v. Sutton 
 41 Okla. 297, 137 Pac. 700 (1913), and contra, by statute, Laithe v. 
 McDonald, 12 Kans. 340 (1873) ; Brown v. Byani, 59 Iowa 52, 12 N. W. 770 
 (1882); Landers v. Smith, 78 Maine 212, 3 Atl. 463 (1886); Stezvart v. 
 Duncan, 40 Minn. 410, 42 N. W. 89 (1889) ; Hass v. Billings, 42 Minn. 63, 
 43 N. W. 797 (1889) ; Moiirdy v. Witzka, 89 Minn. 300, 94 N. W. 885 (1903) ; 
 Munro v. Callahan, 53 Nebr. 73, 73 N. W. 131, 70 Am. St. 366 (1898) ; Beck 
 V. Juckett, III Iowa 339, 82 N. W. 762 (1900) ; Van Antzverp v. Lathrop, 70 
 Nebr. 747, 98 N, W. 35 (1904) ; Young v. Lindquist, 126 Minn. 414, 148 N. W. 
 
 455 (1914)- 
 
 In Nugent v. Metropolitan S. Ry. Co., 49 App. Diy. (N. Y.) a judgment 
 was vacated because the perjured testimony was inspired and manufactured 
 by one of the attorneys.
 
 358 juncMEXT 
 
 THOMAS ATKINSON AND FRANCIS ATKINSON v. 
 TASCIIAL ALLEN 
 
 Supreme Court of Vermont, 1839 
 12 Vt. 6ig 
 
 Ejectment, for the whole of the first division of the rij^ht of 
 Charles Murray, in Charleston, lieing lot No. 5. Plea, not guilty, and 
 trial by jury.^ 
 
 Upon the trial in the county court, the plaintiffs introduced testi- 
 mony tending to prove that, in 1806, one John Atkinson took posses- 
 sion of one hundred acres of the west part of said lot. The plaintiffs 
 also read in evidence two deeds from John Atkinson to themselves, 
 conveying the land in question, one dated in 1820, and the other in 
 1821 ; also, an act of the legislature, passed in 1819, authorizing the 
 plaintiffs to hold lands in this state. The possession of John Atkin- 
 son was continued until the fall of 1810, and then vacated until 1818, 
 when he again took possession, and he and the plaintiffs, from that 
 time, continued in possession until 1829, wdien the plaintiffs were 
 evicted by one Alpha Allyn, who continued in possession until July, 
 1833. The plaintiffs did not connect their claim of title wdth Murray, 
 the original grantee. The defendant was in possession of the land 
 previous to, and at tlie time of the commencement of this suit. Here 
 the plaintiff's rested. 
 
 The defendant then read in evidence a judgment of the county 
 court, rendered at the June term, 1833, in favor of Charles Murray, 
 of the city of London, in England, against Alpha Allyn, showing a 
 recovery of the seizin and possession of said land ; also a writ of 
 possession, issued on said judgment, and the return of the officer 
 thereon, showing that the writ had been duly executed. 
 
 The plaintiffs then gave evidence tending to prove that the action 
 of ejectment in favor of Murray against Alpha Allyn, w^as com- 
 menced without Murray's knowledge; that he never recognized it, 
 and that the judgment recovered therein was collusive, colorable and 
 fraudulent. To the admission of this evidence the defendant ob- 
 jected, but the court overruled the objection. 
 
 The jury returned a verdict for the plaintiffs to recover one 
 hundred acres of the lot in question, and the defendant excepted to 
 the decision and charge of the county court. 
 
 Redfiei.d, J.: The only remaining objection made to the pro- 
 ceedings in the court below is, that the plaintiffs were suffered to 
 attack the judgment in favor of Charles Murray against Alpha Allyn 
 collaterally, by showing that it was not bona fide, but colorable 
 merely, got up by Allyn to shield himself and his tenant, the defend- 
 ant — Murray having no knowledge of the proceedings. It is obvious, 
 that as the plaintiffs, and those under whom they claim title, had 
 
 'Part of the statement of facts, the arguments of counsel and part of the 
 opinion are omitted.
 
 ATKINSON V. ALLEN 559 
 
 possession of the premises prior to Alpha Allyn, and were forcibly 
 ousted by h'm, they can upon this first seizin only, recover of Allyn 
 and all who have entered, either under him, or upon his possession, 
 whether with or without his consent, unless they can shield them- 
 selves under a title older and better than that of the plaintiffs. This 
 they attempted by force of the judgment in favor of Murray, the 
 original proprietor, against Alpha Allyn, he being put out of pos- 
 session and the present defendant and those under whom he claims 
 title, being put in under color of this judgment. This judgment the 
 plaintiffs were permitted to avoid, by proof addressed to the jury, in 
 the manner above stated. As the plaintiffs were neither parties, nor 
 privy to this judgment, and could have brought no process or suit 
 whatever to reverse or set it aside, they must be permitted to avoid 
 the effect of the judgment in this manner, if at all. The rule that 
 a judgment of a court of competent jurisdiction is conclusive, until 
 reversed or in some manner set aside and annulled, and that it can 
 •not be attacked collaterally, by evidence tending to show tliat it was 
 irregularly or improperly obtained, only applies to parties and privies 
 to the judgment, who may take proceedings for its reversal, and in 
 no sense extends to strangers. It is obvious, if the facts found by 
 the jury in this case are to be regarded, that the defendant is the 
 tenant of Alpha Allyn, and has no more connection with the title of 
 Murray than if he had attempted to show title from him, by means 
 of a forged deed. And it is not, for a moment, to be tolerated, that 
 the rights of parties to the title of lands, are to be shifted and post- 
 poned, to their juniors, by merely colorable proceedings of this 
 character. This mode of redress has always been allowed to strang- 
 ers or tliird persons. Dutchess of Kingston's Case, 11 State Tr. 230; 
 Crosby v. Leng, 12 East, 409; Lloyd v. Maddox, Moore, 917, 11 
 State Tr. 262, i Stark Ev. (6th ed.) 259.* 
 
 The judgment of the county court is affirmed. 
 
 *A stranger to the record may impeach a judgment in a collateral pro- 
 ceeding, either on the ground of want of jurisdiction in the court to render 
 it or of fraud or collusion between the parties in obtaining its entry, if, and 
 only if, it injuriously affects his rights. Warter v. Perry, Cro. Eliz. 199 
 (1589) ; Fermor's Case, 3 Coke 77 (1601) ; Vcale v. Gatesdon, W. Jones 91 
 (1625) ; Randal's Case, 2 Mod. 308 (1678) ; Pierce v. Jackson, 6 Mass. 242 
 (1810) ; Griswold v. Stewart, 4 Cow. (N. Y.) 457 (iS2q) ; Vose V. Morton, 
 58 Mass. 27 (1849) ; Douglass v. Howland, 24 Wend. (N. Y.) 35 (1840) ; 
 Downs V. Fuller, 43 Mass. 135, 35 Am. Dec. 393 (1840) ; Gurnsey v. Edwards, 
 26 N. H. 224 (1853) ; Vandcrvcer v. Gaston, 24 N. J. L. 818 (1854) ; Golahar 
 V. Gates, 20 Mo. 236 (1855) : Brunner^s Appeal. a1 Pa. 67 (1864 ) ; Sidensparker 
 V. Sidensparker, 52 Maine 481, 83 Am. Dec. 527 (1864) ; Annett v. Terry, 35 
 N. Y. 256 (1866) ; Lee v. Back, 30 Ind. 148 (1868) ; Mecklev's Appeal, 102 
 Pa_S36 (1883) ; Biddle v. Tomltnson. iiq Pa. 200. 8 AtTTyJA (1886) : SafFord 
 V. Weare, 142 Mass. 231, 7 N. E. 730 (1886) ; Smith v. Cuyler, 78 Ga. 654, 3 
 S. E. 406 (1887) ; Eureka Iron & Steel IVks. v. Bresnahan, 66 Mich. 489, 33 
 N. W. 834 (1887) ; McCanless v. Sinitlt, 51 N. J. Eq. 505, 25 Atl. 211 (1893) ; 
 Roberts V. Yancy; 94 Ky. 243, 21 .S. W. 1047, 42 Am. St. 357 (1893) ; Sager v . 
 Mend. t6/i Pa. i2i., -^q M}, ^S.] (1894) ; Shamlin V. Hall, 123 Ala. 541, 26 So. 
 285 (1898) ; Safe Deposit Co. v. Wright, 105 Fed. 155 (1900) ; Brownwell v. 
 Snyder, 122 App. Div. 246, 106 N. Y. S. 771 (1907) ; Sache v. Wallace, loi 
 Minn. 169, 112 N. W. 386 (1907) ; Harpold v. Doyle, 16 Idaho 671, 102 Pac. 
 158 (1908) ; Wick V. Rea, 54 Wash. 424, 103 Pac. 1462 (1909) ; Northern Pac. 
 R. Co. V. Boyd, 177 Fed. 804 (1910) ; Hall v. Hall, 139 N. Y. App. Div. 120,
 
 5()0 juix;mkxt 
 
 CANDF.E r. T.ORD AND OTHERS 
 
 Court ov AppilALS of Nkw York, 1848 
 
 2 A'. }'. 269 
 
 Appeal from the late Court of Chancery. The complainant 
 Candcc recovered jiulpnent for $1,1^12.90 against Russel Lord on 
 March 29, 1844, on a demand which existed prior to the judg-mcnts 
 hereafter mentioned. After execution issued and returned unsatis- 
 fied, Candee filed this bill ag^ainst the judgment debtor, Henry Lord 
 and William Champlin, averring that in August, 1843, Russel Lord, 
 without consideration and to defraud his creditors had confessed 
 a iucigment to Henry Lord for $1,400 upon which certain real 
 estate had been sold by the sheriff and purchased by Henry Lord; 
 that in the same month another fraudulent judgment had been con- 
 fessed to William Champlin for $1,250 on which other real estate 
 was sold and purchased by Champlin and another; that the sums 
 bid on the sales belonged to Lord's creditors and claiming that the 
 defendants Lord and Champlin should account therefor. The an- 
 swers of Champlin and Henry Lord insisted, among other things, 
 that complainant's judgment was obtained in a suit brought against 
 Russel Lord upon a forged endorsement of a promissory note, and 
 this was insisted upon as a ground of defense to the bill, so far as 
 they were concerned. The chancellor, reversing a previous order 
 of the vice chancellor, awarded issues for trial by jury, one of which 
 was whether the endorsement upon which the complainant obtained 
 his judgment was a forgery. From this order the complainant 
 appealed.^ 
 
 123 N. Y. S. 1056 (1910). But he can not so attack it for mere irregularities. 
 Szdggari v. Harbcr, 5 111. 364, 39 Am. Dec. 418 (1843) ; Sccrist V. Green, 3 
 Wail. (U. S.) 744, 18 L. ed. 153 (1865) ; Dean v. Thatcher, 32 N. J. L. 470 
 (1S65) ; State v. Rogers, 131 Ind. 458, 31 N. E. 199 (1891) ; Milleisen v. 5'^M.r^- 
 vmn, 4 P:' -Siippr. Ct. 4:;:; (1807') ; Allred v. Smith, 135 N. Car. 443, 47 S. E. 
 597 0904) ; Pullman Palace Car Co. v. Washburn, 66 Fed. 790 (1895). Nor 
 can a mere disseizor or volunteer collaterallj- attack a judgment to which he 
 is a stranger. Wellington v. Gale, 13 Mass. 483 (1816) ; Baugh v. Baugh, 37 
 Mich. 59, 26 Am. Rep. 495 (1877). 
 
 Generally, the right or interest prejudiced, to come within the rule must 
 have accrued prior to the rendition of the judgment attacked. Doe v. Derby, 
 I Ad. & El. 783 (1834) ; Kunt v. Haven, 52 N. II. 162 (1872) ; Freydewall v. 
 Baldiiin, 103 111. 325 (1P82) ; Hogg v. Link, 90 Ind. 346 (1883) ; Strayerj^. 
 Jn lmscni. 1 10 Pa. 21. t At1. 22g (1S85) ; Peterson v. Wcissbein, 80 CaT. 38^ 22 
 T'acTlS (1889) ; Chase v. Kaynor, 78 Iowa 449, 43 N. W. 269 ( 1889) ; Dull v. 
 Blackman, 169 U. S. 243, 42 L. ed. 733 (1898) ; Bennett v. Wilson, 133 Cal. 
 379, 65 Pac. 880, 85 Am. St. 207 (1901) ; Hudkins v. Crim, 72 W. Va. 418, 78 
 S. E. 1043 (1913). Thus, where land is conveyed subject to a judgment 
 and the judgment debtor fails to have the judgment opened or stricken 
 off in proceedings brought for that purpose, the grantee can not in a 
 subsequent action of ejectment collaterally attach the judgment as against 
 one deriving title through a sheriff's sale under the judgment. Ross v. Dewey, 
 215 Pa. 526, 64 Atl. 674 (1906). Accord: Johns v. Pattee, 55 Iowa 665, 8 
 N. W. 663 (1881). 
 
 'The statement of facts is abridged and the arguments of counsel and 
 part of the opinion of the court are omitted.
 
 CANDEE V. LORD 56 1 
 
 Gardiner, J.: The most important question in this cause, is 
 whether a judgment obtained without fraud or collusion, is con- 
 clusive evidence, in suits between creditors in relation to the property 
 of the judgment debtor, of the indebtedness of the latter. 
 
 A debtor may be said to sustain two distinct relations to his 
 property: that of owner, and quasi trustee for his creditors. As 
 owner he may contract debts to be satisfied out of his property, 
 confess judgments, create liens upon it, sell or give it to others at 
 pleasure; and so far as he is personally concerned, will be bound 
 by his own acts. But the law lays upon him an obligation to pay his 
 debts, and holds him in behalf of his creditors to the exercise of 
 good faith in all transactions relating to the fund upon which they 
 must depend for payment. He can, therefore, neither create a debt, 
 or do any of the things above mentioned mala fide to their prejudice. 
 The common law, of which the English statute^ and our own is but 
 the exposition, declares that every such debt, judgment or assurance, 
 contracted or given with the intent to hinder, delay or defraud his 
 creditors, as against them, to be void. And equity in many cases 
 holds the debtor and his confederates in the fraud as trustees for 
 the parties aggrieved. The rights of creditors to the property of the 
 debtor, are to be worked out through the different relations to which 
 I have alluded. 
 
 In creating debts, or establishing the relation of debtor and 
 creditor, the debtor is accountable to no one unless he acts mala fide. 
 A judgment, therefore, obtained against the latter without collusion, 
 is conclusive evidence of the relation of debtor and creditor against 
 others. First, because it is conclusive between the parties to the 
 record who in the given case have the exclusive right to establish it ; 
 and second, because the claims of other creditors upon the debtor's 
 property are through him, and subject to all previous liens, prefer- 
 ences or conveyances made by him in good faith.^ Any deed, judg- 
 ment or assurance of the debtor, so far at least as they conclude 
 him, must stop his creditors and all others. Consequently, neither 
 a creditor nor stranger can interfere in the bona fide litigation of 
 the debtor, or re-try his cause for him, or question the effect of the 
 judgment as a legal claim upon his estate. A creditor's right, in a 
 word, to impeach the act of his debtor, does not arise until the 
 latter has violated the tacit condition annexed to the debt; that he 
 has done, and will do nothing to defraud his creditors. 
 
 Where, however, fraud is established, the creditor does not claim 
 through the debtor, but adversely to him, and by a title paramount, 
 which overreaches and annuls the fraudulent conveyance or judg- 
 ment by which the latter himself would be estopped.^ It follows 
 
 •Statute of 13 Eliz. ch. 5 (1571). See Tivyne's Case, 3 Coke 80 (1602) ; 
 I Smith's Leading Cases, l and note. 
 
 ''Pabst Braving Co. v. Jensen, 68 Minn. 293, 71 N. W. 384 (1897) ; Menc[el 
 .V. Connecticut Fim Ins Cn , . K Pa. Super CL .dQl (1897) ; Newark City Nat. 
 Bank V. Crane, 60 N. J. Eq. 121, 45 Atl. 975 1900); Comer v. Sliehce, 129 
 Ala. 588,30 So. 95, 87 Am. St. 78 (1900). 
 
 *"A jvidgment which has heen procured by the fraudulent contrivance of 
 the debtor or the collusion of both parties is subject to collateral attack by 
 any one a stranger to the judgment who has been injuriously affected there- 
 
 36 — Civ. Proc.
 
 t^OJ JUDGMENT 
 
 from tlic principles suggested, that a judgment obtained without 
 frauil or colhision, and which conckides the debtor; whether ren- 
 dered upon default, confession, or after contestation, is upon all 
 questions affecting the title to his property, conclusive evidence 
 a<;ainst his creditors, to establish first, the relation of creditor and 
 debtor between the parties to the record, and second, the amount of 
 tlie indebtedness. This principle is assumed in our statute in relation 
 to creditor's bills, 2 R. S. 174, section 38, and decided in Rogers v. 
 Rogers, 3 Paige, 599; 2 Greenlf. Ev. 531 ; Marsh v. Pier, 4 Ra wle. 
 288, 9. 
 
 It is immaterial whether the debt was created prior or subse- 
 quent to the fraudulent lien, or conveyance, which was sought to 
 be removed. The right of the creditor to impeach the assurance 
 of the debtor, arises out of the relation which exists between them 
 at the commencement of the suit for tliat purpose, and does not 
 depend upon tlie time when the fraud was consummated. Hence 
 a conveyance made with intent to defraud subsequent creditors is 
 void at their election. And the fraudulent grantee would not be 
 permitted to allege, in bar of the action against him, that the parties 
 seeking relief were not creditors prior to, or at the time of tlie 
 conveyance. Walker v. Burrows, i Atkyns, 94 ; Stillman v. Asdown, 
 2 Atkyns 481, 512; Sezvard v. Jackson, 8 Cowen 431, 441 ; Hind v. 
 Longworth, 11 Wheaton, 209; i Story's Eq., section 356; Jackson v. 
 Myers, 18 John R. 425 ; 20 John R. 472. The only difference in the 
 two cases is found in the degree of evidence necessary to establish 
 the fraud. In this case, the defendants have not alleged that the 
 iudgmcnt of the complainant was not obtained in good faith. ^ But 
 tliey insist that there was error in the suit in which it was obtained, 
 in the determination of a question of fact; and that they are not 
 concluded by the defense of the debtor, because they are not in 
 privity with him. We think otherwise. The law which gave the 
 judgment debtor the unlimited right (when honestly exercised) to 
 contract debts, to settle and adjust their amount, to secure and to 
 pay them, made him to this extent tlie representative of all his 
 creditors who should seek the satisfaction of their demands out of 
 his property ; so far at least they are in privity with, and claim under 
 their debtor. If, as the defendants insist, they hold the property 
 in question by a title derived under a valid judgment, prior to tliat 
 of the complainant, their rights can not be affected by this evidence. 
 If, however, as the bill alleges, their judgment was fraudulent, the 
 complainant, as a creditor, can repudiate it, and claim the property 
 as that of his debtor, his acts to the contrary notwithstanding, and 
 
 by." Northern Pac. R. Co. v. Boyd, 177 Fed. 804 (1910). Accord: Earl of 
 Brandon v. Becker, 3 CI. & F. 479 (1835) ; T^'n'trnd v Kern<;. ?, Watts (P;i.) 
 180 (1834) ; Hammock v. McBride, 6 Ga. 178(1810) ; Park-hurst V. Summer, 23 
 Vt. 538, 56 Am. Dec. 94 (1851) ; Raymond v. Whitney, 5 Ohio St. 201 (1855) ; 
 Hackett V. Manlove, 14 Cal. 85 (1859); Sidensparker v. Sidensparker, 52 
 Maine 481, 83 Am. Dec. 527 (1864) ; Streety v. McCurdy, 104 Ala. 493, 16 So. 
 686 (1894) ; Cook v. Morris, 66 Conn. 137, 33 Atl. 594 (1895) ; Brownell v. 
 Snyder, 122 App. Div. 246, 106 N. Y. S. 771 (1907) ; Nixon v. Loundes (1909), 
 2 Irish Rep. K. B. i.
 
 SCOTT V. SHEARMAN 563 
 
 hold his confederates in the fraud accountable as trustee for his 
 benefit. 
 
 My brethren concur in the conclusions above stated (but) a 
 majority of the court are of opinion that the decision of the chan- 
 cellor was upon a question of practice, which is not a proper subject 
 of review in this court, and for that reason the appeal should be 
 dismissed. 
 
 Appeal dismissed.^ 
 
 (b) Proceedings in Rem. 
 
 SCOTT V. SHEARMAN 
 
 Court of Common Bench, 1775 
 
 2 W. Bl. 977 
 
 Trespass against five custom house officers for breaking and 
 entering the house of the plaintiff at Harwich, and searching and 
 rummaging the same, and taking away certain of his goods. On 
 Not Guilty pleaded, the cause was tried at Chelmsford assizes in 
 Lent, 1774, and a verdict found for the plaintiff, damages 100/. on 
 this special case reserved. 
 
 The defendants, who are all known to be custom house officers, 
 on the 24th of August, 1773, entered the plaintiff's house in the day 
 time, in the com.pany of the plaintiff, under pretence of an informa- 
 tion against run goods, and demanded of the plaintiff and his wife 
 their keys, which they refused to deliver, and desired to see their 
 information; which Shearman refused to produce, and threatened, 
 
 ^Accord: Voorhees v. Seymour, 26 Barb. (N. Y.) 569 (1857) ; Burgess v. 
 Simonson, 45 N. Y. 225 (1871) ; Decker v. Decker, 108 N. Y. 128, 15 N. E. 
 307 (1888) ; Bensimer v. Fell, 35 W. Va. 15, 12 S. E. 1078, 29 Am. St. 774 
 (1891) ; McCanless v. Smith, 51 N. J. Eq. 505, 25 Atl. 211 (1893) ; Ledoux V. 
 Bank of America, 24 App. Div. 123, 48 N. Y. S. 771 (1897) ; Railroad Equip- 
 ment Co. V. Blair, 145 N. Y. 607, 39 N. E. 962 (1895) ; Nicholas v. Lord, 193 
 N. Y. 388 (1908). Compare Second U'orkingmen's Bldg. &c. Assn. v. Wick- 
 ers, 83 N. J. Eq. 397, 91 Atl. 897 (1914). 
 
 In Thombson's Appeal. 57 Pa. St 17.^ (1868 ). upon distribution of the 
 proceeds of a sherirt's sale it was held error for the auditor, at the instance 
 of junior judgment creditors, to postpone the lien of a prior judgment 
 against the debtor, on the ground that the bond and warrant upon which such 
 judgment had been entered, had been obtained by false representations. The 
 court said: "Judgment creditors may attack a judgment collaterally when it 
 is a fraud upon them, as when there has been collusion between the debtor 
 and the creditor; but they can not set it aside merely because it is a fraud 
 upon the debtor." Accord: Dougherty's Esta te, f 'Wnttg Rf 's jpn 42 Am. 
 Dec. 326 (1844) ; Drexcl's A ppml, f\ Pn "^t ■?-!■? (rR^y) ; Lewis v. Rogers. j 6 
 Pa. 18 (1851) ; Sxvihart v. Shazvm, 24 Ohio St. 432 ( 187^ ) T l/Iiners' Trust Co . 
 Y. Roseberrv. 81 Pa. St. 3 0Q (1876) ; Sec ond Nat. Banks Appml. ^5 Pa <ft 
 528 (1877) ; Mc Alpine v. Sweetser, 76 Ind. 78 (iSSi) : Zua'v. S'earight,^j xo 
 Pa. St. So6r 24 Atl. 746 (1892) ; Safe Deposit &c. Co. v. Wright, 105 Fed.^^, 
 44 C. C. A. 421 (1900) ; Stewart Lumber Co. v. Downs, 142 Iowa 420 (1909) ; 
 Blau V. Bernai^nr.r.i. =;/[ Pa. Super. Ct. Ill (1913).
 
 564 JUDGMENT 
 
 it tlioy would not give up their keys, he would break open the locks ; 
 and aocorditip^ly got a constable, to whom he i)roduced his wTit of 
 assistance, and broke open the locks of the chambers, closets and 
 drawers ; and took away twenty pints of Geneva in one case bottle, 
 and ten pints with rue steeped therein in another case bottle, which 
 was brou.L^ht that morning at five o'clock from on board the plain- 
 tiff's vessel (which was just arrived from Flushing where she had 
 sold a cargo of fish), and was part of the shift's stores. The de- 
 fendants gave in evidence a cojiy of the record of condemnation 
 of the same Geneva in the Court of Exchequer, Michaelmas Term, 
 1773: And that the said Geneva, w'hen seised, was immediately 
 lodged in the King's storehouse.^" 
 
 Blackstone, J. : The only possible ground that the plaintiff can 
 rely on in tJie present case, which is unaccompanied with misbe- 
 havior, or any unwarrantable violence, is, that the goods were not in 
 truth liable to be seised by the laws of the customs; altliough, by 
 the plaintiff's default, they have been condemned in the Exchequer. 
 But I take this condemnation to be conclusive evidence to all the 
 world, that the goods were liable to be seised; and that therefore 
 tliis action will not lie.^^ 
 
 I. Because of the implicit credit which the law gives to any 
 judgment in a court of record, having competent jurisdiction of 
 the subject-matter. The jurisdiction in this case of the Court of 
 Exchequer is not only competent, but sole and exclusive. And 
 though it be said, that no notice is given to the owner in person, 
 and that therefore he is not bound by the condemnation, not being 
 a party to the suit; — yet the seisure itself is notice to the owner, 
 who is presumed to know whatever becomes of his own goods. 
 He knew they were seised by a revenue officer. He knew they 
 were carried to the King's warehouse. He knew, or might have 
 known, that by the course of law, the validity of that seisure would 
 come on to be examined in the Court of Exchequer, and could be 
 examined nowhere else. He had notice by the two proclamations 
 according to the course of that court. He had notice by the writ 
 of appraisement, which must be publicly executed on the spot where 
 
 "Part of the statement of facts and opinion of the court are omitted. 
 
 " "Judgments or decrees as to the status of the res, in proceedings 
 strictly in rem, are concUisive against all the world as to that status ; while 
 such judgments as to the rights of parties, wliatever may be the point 
 adjudicated, not being as to status, are only conclusive between parties and 
 privies to suit." Per Mayfield, J., in McCann v. Ellis, 172 Ala. 60, 55 So. 303 
 (igii) ; Makin's Produce Co. v. Callison, 67 Wash. 434, 121 Pac. 837 (1912). 
 While it is generally said that a judgment in rem binds all the world perhaps 
 it is more accurate to say that such a judgment is conclusive against all per- 
 sons having any interest in the thing in controversy in any subsequent pro- 
 ceeding where the grounds of the adjudication, or the fact of its rendition, 
 or its legal consequences are relevant. 2 Black on Judgments (2d ed.), § 795; 
 Freeman on Judgments (4th ed.), § 617; The Mary, 9 Cranch 126, 3 L. ed. 
 678 (1815) ; Caslrique V. Imrie, L. R. 4 H. L. 414 (1870) ; Bailey v. Sundberg, 
 49 Fed. 5S3, I C. C. A. 387 (1892) ; Ballantyne v. Mackinnon, L. R. (1896), 
 2 Q. B. 455. Rx parte Kcnmnre Shoe Co., 50 S. Car. 140, 27 .S. E. 682 (1897) ; 
 Si mon's Es tate, 20 Pa. Super. Ct. 4';o (1002) ; Sorensen v. Sorensen, 68 Neb. 
 ^!3o Ti903).~ Compare Diirant v. Abendorth, 97 N. Y. 132 (1884).
 
 SCOTT V. SHEARMAN 565 
 
 the goods were detained. And having neglected this opportunity 
 of putting in his claim, and trying the point of forfeiture, it was his 
 own laches, and he shall forever be concluded by it, not only with 
 respect to the goods themselves, but every other collateral remedy 
 for taking them. For it would be nugatory, to debar him from 
 recovering directly the identical goods that are condemned, if he is 
 allowed to recover obliquely damages equivalent to their value, 
 
 2. Because, the property of the goods being changed, and irre- 
 vocably vested in the Crown by the judgment of condemnation (as 
 is clear beyond any dispute and conceded on the part of the plaintiff) 
 it follows as a necessary consequence, that neither trespass nor 
 trover can be maintained for taking tliem in an orderly manner. 
 For the condemnation has a retrospect and relation backwards to 
 the time of tlie seisure. The spirituous liquors that were seised were 
 therefore, at the time of the seisure, the goods and chattels of his 
 Majesty, and not of the plaintiff, as in his declaration he has (nec- 
 essarily) declared them to be ; since neither trespass nor trover will 
 lie for taking of goods, unless at the time of the taking, tlie property 
 was in the plaintiff. 
 
 This reasoning is supported by authorities expressly in point. 
 In Gilbert's Treatise of the Exchequer, ch. 13, it is clearly shown, 
 in what manner these informations in rem, which were instituted 
 in order to give the Crown possession of its ancient prerogative 
 revenues of wrecks, deodands, estrays and the like, by degrees came 
 afterward to be applied to the forfeitures enacted by the statute 
 \q.\y, for offenses against the laws of the customs and excise. And 
 it is expressly laid down, page i86, that "the very seising of the 
 goods is notice to the claimer, and an undertaking to proceed to con- 
 demnation according to the rules of the court." 
 
 The retrospect or relation backward in these informations was 
 the same as in the inquests of office. And there is in Keilw. 68, b. 
 in the King's Bench, 21 H. 7, a remarkable case of retrospect in 
 the case of a deodand. The king's officer had seised the instrument 
 of death immediately after the accident ; but no inquisition was had 
 till a year afterward, when the goods were found to be a deodand. 
 Upon trespass brought against the officer for seising the goods, the 
 court held, that the inquisition related back to the death, that the 
 seisure therefore was lawful, and no action of trespass would lie. 
 
 The case also of fugitive's goods is a strong instance to show 
 how conclusive the law esteems the judgment of forfeiture to be, 
 when pronounced by a legal and competent tribunal. If the cor- 
 oner's inquest finds a man guilty of homicide, and that he fled for it ; 
 though he may traverse the crime, and be acquitted of the felony, 
 yet he can not traverse the flight, by which his goods are forfeited 
 to the king. 8 Ed. 4. 4. ; i Hal. P. C. 416; 2 Hal. P. C. 64. And 
 therefore, though the petty jury expressly acquit him of both the 
 felony and the flight, their verdict as to the flight shall be void; 
 for they ought not to inquire of the flight, after it has been once 
 found, and the forfeiture vested in the Crown by ihe coroner's 
 inquest. Fitz. Abr. Forfeiture 35, Staundf. P. C. 183, and Prero?.
 
 566 JUDGMENT 
 
 46; Dvcr 238 b. ; 2 llal. P. C. 301. The reason given in some of 
 the books wliy this inciuest is not traversable, like other inquests of 
 office, is because of tJie notoriety of the coroner's inquest super 
 visum corporis, at which the inhabitants of all the neighboring vills 
 are bound to attend ; and so the finding of the flight is but in effect 
 recording the absence of tlie party. There is surely as much notori- 
 etA' of the information in the Exchequer against uncustomed goods; 
 and the absence or default of the party shall be equally conclusive 
 against him. 
 
 But the legal decision of this question does not rest on theory 
 or analogy only. It hath been determined over and over in tlie 
 very point. Vanderhurg v. Blake, Tr. 13 Car. 2. In the Exchequer, 
 Hardr. 194, it was held the seisure and proclamation are sufficient 
 notice to tlie owner ; and that neither trover, nor action for malici- 
 ous information, nor other action which may blow off the judg- 
 ment by a sidewind, will lie after a condemnation in the Exchequer. 
 Elkins V. Smith, M. 31 Car. 2. In the Exchequer, Raym. 335, and 
 cited per cur. Carth. 327. After condemnation the property is 
 altered, so as neitlier trespass, nor trover will lie for the proprietor 
 against the person that seiseth them. Martin v. Wilsford, T. 6 W. 
 & ]\I. In the Exchequer, Carth. 323. After judgment upon an 
 information of seisure, the property is altered thereby, so as neither 
 trover nor trespass will lie for him who was the owner, and it is not 
 reasonable that a judgment should be subverted by a collateral action. 
 And in Robinson qui tarn. v. Verfelt et al., Tr. 2 Geo. 2, in the 
 Exchequer (according to a note of Sir Thomas Parker, late C. B.) 
 Pengelly, C. B., held, that if a stranger claims property on the 
 information and on the trial a forfeiture is found, by the condemna- 
 tion the property is altered against the right owner, though he be 
 not the claimer on record. The general doctrine has been recognized 
 in the King's Bench in 1705, in the case of Stafford v. Stevens, and 
 in 1731, in that of Butley v. U^alter, according to notes furnished 
 by the custom house books, and in a variety of nisi prius cases from 
 the same quarter ; to which may be added two instances from Viner, 
 tit. Evidence, p. 95, where the same point was ruled by Price, B., in 
 1716, and King, Chief Justice, in 1719. 
 
 Judgment for the defendants. ^^ 
 
 De Grey, C. J., Gould, J., and Nares, J., concurrsd. 
 
 "Accord: Cooke v. Sholl, 5 T. R. 255 (1703) ; King v. Matthews, S Price 
 202 (1797); Buchanna n_ y. Bi pqs. 2 Yeates (Pa.) 2.-^2 (1797); Hart v. Mc- 
 Kamara, 4 Price, I54n~(l8i7)'; Uelston v. iioyt, 3 Wheat. (U. S.) 246, 4 L. 
 ed. 381 (1818), affg. 13 Johns. 561; Whitncv v. ll^alsh, 55 Mass. 29, 48 Am. 
 Dec. 590 (1848) ; Averill v. S7}iith, 84 U. S. 82, 21 L. ed. 613 (1872) ; Windsor 
 V. McVeigh, 93 U. S. 274, 23 L. ed. 914 (1876) ; McGuire v. Winslow, 26 Fed. 
 304 (1886) ; In re Gottcsfeld. 2.d=; Pa 314, Qi Atl. 404 (iQld ). 
 
 "A judgment in rem is founded on a proceeding instituted, not against 
 the person, as such, but against or upon the thing or subject-matter itself, 
 whose state, or condition, is to be determined. It is a proceeding to determine 
 the state or condition, of the thing itself; and the judgment is a solemn 
 declaration upon the status of the thing, and it ipso facto renders it what it 
 declares it to be." Per Hall, J., in Woodruff v. Taylor, 20 Vt. 63 (1847). "If 
 the technical object of the suit is to establish a claim against some particular 
 person, with a judgment which generally, in theory at least, binds his body,
 
 FREEMAN V. ALDERSON 5^7 
 
 FREEMAN v. ALDERSON 
 
 Supreme Court of the United States, 1886 
 
 119 U. S. i8s 
 
 The following was the case as stated by the court. 
 
 This was an action of trespass to try the title to certain land in 
 Texas brought in the United States Circuit Court. 
 
 The plaintiffs in error, defendants below, claimed the land under 
 a deed to their grantor, executed by the sheriff of McLennan County, 
 in that state, upon a sale under an execution issued on a judgment 
 in a state court for costs, rendered against one Henry Alderson, tlien 
 owner of the property, but now deceased. 
 
 The defendants in error, plaintiffs below, asserted title to the 
 land as heirs of Alderson, contending that the judgment, under 
 which the alleged sale was made was void, because it was rendered 
 
 or to bar some individual claim or objection, so that only certain persons are 
 entitled to be heard in defense, the action is in personam, although it may 
 concern the right to or possession of a tangible thing. If, on the other hand, 
 the object is to bar indifferently all who might be minded to make an objec- 
 tion of any sort against the right sought to be established, and if any one in 
 the world has a right to be heard on the strength of alleging facts which, if 
 true, show an inconsistent interest, the proceeding is in rem!' Per Holmes, 
 C. J., in Tyler v. Court of Registration, 175 Alass. 71, 55 N. E. 812, 51 L. R. A. 
 433 (1900). See also Mankin v. Chandler, 2 Brock. 125, Fed. Cas. No. 9030 
 (1823) ; Hamnerv. Griffith, 1 Gr. Cas. (Pa) IQ 3 (1854) ; Lord v. Chadhourne, 
 42 Maine 429, 65 Am. Dec. 290 (1856) ; McClurg v. Terry, 21 N. J. Eq. 225 
 (1870) ; State v. Central Pacific R. Co., 10 Nev. 47 (1875), P- 80; Martin v. 
 King, 72 Ala. 3^4 (1882) ; Cross v. Armstrong, 44 Ohio St. 613, 10 N. E. 160 
 (1887) ; Holly River C. Co., v. Howell, 36 W. Va. 489, 15 S. E. 214 (1892) ; 
 Francis Times & Co. v. Carr, 82 L. T. 698 (1900). 
 
 To formulate a test, the application of which, in every instance, will 
 determine whether a particular judgment is in rem is difficult, because the 
 nature and purpose of the proceeding and scope of the remedy are determin- 
 ing factors in the instances in which adjudications are binding upon all, and 
 they rest on ancient practice or positive legislation rather than on logical 
 analysis. The following are examples : Condemnations or forfeitures for 
 breach of the excise or revenue laws, cases cited in principal case and supra; 
 decrees in admiralty, Transportation Co. v. Fitzhugh, i Black (U. S.) 574 
 (1861) ; The Cella, L. R. 13 P. D. 82 (1888) ; Ballantyne v. Mackinnon, L. R. 
 (1896), 2 Q. B. 455; Minna Craig S. Co. v. Chartered M. Bank, L. R. (1897), 
 I Q. B. 460; decrees of prize courts, Hughes v. Cornelius, 2 Shower, 232 
 (1682) ; Penhallow v. Doane, 3 Dall. 54 (i795) ; Geyer v. Aguilar, 7 T. R. 681 
 (1778); Wheelvuright v. Depeyster, i Johns. (N. Y.) 471, 3 Am. Dec. 345 
 (1806); judgments establishing highways, Millcreek Tp^ V^^^ed, 29 Pa. St. 
 195 (1857) ; Wakefield v. Cooke, L. R. (1904), A. C. 31 ; orders of naturaliza- 
 tion, McCarthy v. Marsh, S N. Y. 263 (1851) ; Commomvealth v._ Sim,tLSim, 
 7 Phila (P-O 84 (1868) ; State v. Floeflinger, 35 Wis. "393 (1874) ; decrees 
 adjudging a debtor a bankrupt, Shawhan v. Wherritt, 48 U. S. 627 (1849); 
 Michaels v. Post, 88 U. S. 398, 22 L. ed. 520 (1874), P- 428; Mount v. Man- 
 hattan Co., 41 X. J. Eq. 211, 3 Atl. 726 (1886) ; Broivn v. Smart, 69 Md. 320, 
 14 Atl. 468, 17 Atl. 1 101 (1888) ; orders establishing the status and settlement 
 of a pauper, IVpst flu ff nln v Walker Tp.. 8 Pa. 177 (iSaS) : Jennison v. West 
 Springfield, 79r~(T^ass.) 544 (1859) ; Uxbridge Union v. Winchester Union, 
 91 L. T. 533 (1904) ; a sentence of expulsion from college, Kex v. Grundon, 
 I Cowp. 315 (1775).
 
 5(.)S JUDGMENT 
 
 a£::ainst hini ^vltllont personal service of citation, or his appearance in 
 the action. 
 
 The material facts of the case, as disclosed by the record, arc 
 brielly tlicsc: On the i6th of July, 1855, a tract of land comprising 
 one-tliird of a league was patented by Texas to yMderson, who had 
 been a soldier in its army. One undivided half of this tract was 
 claimed by D. C. Freeman and G. R. Freeman, and they brought 
 an action against him for their interest. The pleadings in that 
 action are not set forth in the transcript, but from the record of 
 the judgment therein, which was produced, we are informed that 
 the defendant was a nonresident of the state, and that the citation 
 to him was made by publication. There was no personal service 
 upon him, nor did he appear in tlie action. The judgment, which 
 was rendered on the ist of October, 1858, was of a threefold char- 
 acter. It first adjudged that the plaintiffs recover one undivided half 
 of tlie described tract. It then appointed commissioners to partition 
 and divide the tract, and set apart, by metes and bounds, one-half 
 thereof, according to quantity and quality, to the plaintiffs ; and to 
 make their report at the following term of the court. And finally, it 
 ordered that the plaintiffs have judgment against the defendant for 
 all costs in the case, but stayed execution until the report of the 
 commissioners should be returned and adopted and a final decree 
 entered. 
 
 At the following term, the commissioners made a report show- 
 ing that they had divided the tract into two equal parcels. The 
 report was confirmed, and on the 31st of March, 1859, the court 
 adjudged that the title to one of these parcels was divested from 
 Alderson and vested in the plaintiffs, the two Freemans, and that 
 they recover all costs in that behalf against him, which were $61.45, 
 and that execution issue therefor. Execution therefor was issued 
 to the sheriff of JMcLennan County on the 30th of May, directing 
 him to make the amount out of "the goods, chattels, lands and 
 tenements" of the defendant. It was levied on the other half of the 
 divided tract, which remained the defendant's property. On the 
 5th of July, 1859, this half was sold by the sheriff to one James E. 
 Head for $66.79, being the costs mentioned and his fees for the 
 levy and for his deed, which was executed to the purchaser. In 
 September following. Head conveyed the premises to D. C. Free- 
 man, for the alleged consideration of $178. On the trial, the de- 
 fendants, to show title out of the plaintiffs, offered in evidence the 
 judgment for the costs, the execution issued thereon, and the 
 sheriff's deed; to the introduction of which the plaintiffs objected, 
 on the ground that the judgment for costs was a judgment in per- 
 sonam, and not in rem, and was ordered against the defendant, who 
 was a nonresident of the state, without his appearance in the action 
 or personal service of citation upon him, but upon a citation by 
 publication only, and therefore constituted no basis of title in the 
 purchaser under the execution. 
 
 The court sustained the objection and excluded the documents 
 from the jury; and the defendants excepted to the ruling. No
 
 FREEMAN V. ALDERSON 569 
 
 other evidence of title being produced by the defendants, a verdict 
 was found for the plaintiffs, and judgment in their favor v^as entered 
 thereon ; to review which the case is brought to this court on a writ 
 of error. 
 
 Field, J. : Actions m rem, strictly considered, are proceedings 
 against property alone, treated as responsible for the claims asserted 
 by the libellants or plaintiffs. The property itself is in such actions 
 the defendant, and, except in cases arising during war for its hostile 
 character, its forfeiture or sale is sought for the wrong, in the 
 commission of which it has been the instrument, or for debts or 
 obligations for which by operation of law it is liable. The court 
 acquires jurisdiction over the property in such cases by its seizure, 
 and of the subsequent proceedings by public citation to the world, 
 of which the owner is at liberty to avail himself by appearing as a 
 claimant in the case. 
 
 There is, however, a large class of cases which are not strictly 
 action m rem, but are frequently spoken of as actions quasi in rem, 
 because, though brought against persons, they only seek to subject 
 certain property of those persons to the discharge of the claims 
 asserted. Such are actions in which property of nonresidents is 
 attached and held for the discharge of debts due by them to citizens 
 of the state, and actions for the enforcement of mortgages, and 
 other liens. Indeed, all proceedings having for their sole object the 
 sale or other disposition of the property of the defendant to satisfy 
 the demands of the plaintiff, are in a general way thus designated. 
 But they differ, among other things, from actions which are strictly 
 in rem, in that the interest of the defendant is alone sought to be 
 affected, that citation to him is required, and that judgment therein 
 is only conclusive between the parties.^^ 
 
 The state has jurisdiction over property within Its limits owned 
 by nonresidents, and may, therefore, subject it to the payment of 
 demands against them of Its own citizens.^* It is only in virtue 
 of Its jurisdiction over the property, as we said on a former occa- 
 sion, that its tribunals can inquire into the nonresident's obligations 
 to its own citizens; and the Inquiry can then proceed only so far 
 as may be necessary for the disposition of the property. If the non- 
 resident possesses no property in the state, there is nothing upon 
 which its tribunals can act. Pennoyer v. Neff, 95 U. S. 714. They 
 can not determine the validity of any demand beyond that which is 
 satisfied by the property. For any further adjudication, the de- 
 fendant^ must be personally served with citation or voluntarily 
 appear in the action. The laws of the state have no operation out- 
 
 " "It is better to distinguish between proceedings in rem and proceedings 
 quasi in rem. The latter are assimilated to the former in some particulars, — 
 as in respect to the manner of acquiring jurisdiction,— but are not always 
 attended by the same consequences — in respect, for example, to the persons 
 bound by the adjudication." 2 Black Judgments (2d ed.), § 793. 
 
 ^Klark v. Smith, 13 Pet. 195, 10 L. ed. 123 (1839) ; Parker v. Overman, 18 
 How. (U. S.) 137, 15 L. ed. 318 (185s) ; United States v. Fox, 94 U. S. 315, 
 24 L. ed. 192 (1876) ; Hulinci v. Kaw Valley R- &c. Co., 130 U. S. 559, 9 Sup 
 Ct. 603, 32 L. ed. 1045 (1889) ; Olmsted v. Olmsted, 216 U. S. 386 (1909).
 
 570 JUDGMENT 
 
 side of Its territory, except so far as may be allowed by comity; its 
 tribunals can not send their citation beyond its limits and require 
 parties there domiciled to respond to proceedings against them ; and 
 publication of citation within the state can not create any greater 
 obligation upon them to appear. So, necessarily, such tribunals can 
 ha\c no iurisdiction to pass upon the obligation of nonresidents, 
 except to the extent and for the purpose mentioned.^^ 
 
 This doctrine is clearly stated in Cooper v. Reynolds, lo Wall. 
 308, where it became necessary to declare the effect of a personal 
 action against an absent party without the jurisdiction of the court, 
 and not served with process or voluntarily appearing in the action, 
 and whose property was attached, and sought to be subjected to 
 the payment of tlie demand of the resident plaintiff. After stating 
 the general purpose of the action, and the inability to serve process 
 upon the defendant, and the provision of law for attaching his 
 property in such cases, tlie court, speaking by ]\Ir. Justice Aliller, 
 said: "If the defendant appears, the cause becomes mainly a suit 
 in personam, Avith the added incident that the property attached 
 remains liable, under the control of the court, to answer to any 
 demand which may be established against the defendant by the final 
 judgment of the court. But if there is no appearance of the defend- 
 ant, and no service of process on him, the case becomes in its essen- 
 tial nature a proceeding hi rem, the only effect of which is to subject 
 the property attached to the payment of the demand which the court 
 may find to be due to the plaintiff. That such is the nature of this 
 proceeding in this latter class of cases is clearly evinced by two 
 well-established propositions: First, the judgment of the court, 
 though in form a personal judgment against the defendant, has no 
 effect beyond the property attached in that suit. No general execu- 
 tion can be issued for any balance tmpaid after the attached property 
 is exhausted. No suit can be maintained on such a judgment in the 
 same court, or in any other ; nor can it be used as evidence in any 
 other proceeding not affecting the attached property ; nor could the 
 costs in that proceeding be collected of defendant out of any other 
 property than that attached in the suit. Second, the court, in such a 
 suit, can not proceed unless the officer finds some property of de- 
 fendant on which to levy the writ of attachment. A return that 
 none can be found is the end of the case, and deprives the court of 
 further iurisdiction, though the publication may have been duly 
 made and proven in court." 
 
 To this statement of the law it may be added, what, indeed, is a 
 conclusion from the doctrine, that whilst the costs of an action may 
 properly be satisfied out of the property attached, or otherwise 
 
 ^Kxlhurn v. Woodzvorth, 5 Johns. (N. Y.) 37, 4 Am. Dec. 321 (1809); 
 Borden v. Fitch, 15 Johns. (N. Y.) 121, 8 Am. Dec. 225 (1818) ; Ewer v. 
 Coffin, 55 Mass. 23, 48 Am. Dec. 587 (1848) ; D'Arcy v. Kctchum, 11 How. 
 (U. S.) 165, 13 L. ed. 648 (1850) ; Bisclwff v. Wethered, g Wall. (U. S.) 812, 
 19 L. ed. 829 (1869); Thompson v. Whitman, 85 U. S. 4S7, 21 L. ed. 897 
 (1873); Heziitson v. Fabre, L. R. 21 Q. B. Div. 6 (1888); Wetmore v. 
 Karrick, 205 U. S. 141, 51 L. ed. 745 (1906) ; Brown v. Fletcher's Estate, 210 
 U. S. 82, 52 L. ed. 966 (1907).
 
 FREEMAN V. ALDERSON 57I 
 
 brought under the control of the court, no personal liability for them 
 can be created against the absent or nonresident defendant; the 
 power of the court being limited, as we have already said, to the 
 disposition of the property, which is alone within its jurisdiction. 
 
 The pleadings in the case in which judgment was rendered for 
 costs against Alderson are not before us. We have only the formal 
 judgment, from which it should seem that the action was to recover 
 an undivided interest in the property, and then to obtain a partition 
 of it, and have that interest set apart in severalty to the plaintiffs — 
 a sort of mixed action to try the title of the plaintiffs to the un- 
 divided half of the property, and to obtain a partition of that half. 
 Such action, though dealing entirely with realty, is not an action 
 in rem in the strict sense of the term ; it Is an action against the 
 parties named, and, though the recovery and partition of real estate 
 are sought, that does not change its character as a personal action; 
 the judgment therein binds only the parties in their relation to the 
 property. The service of citation by publication may suffice for the 
 exercise of the jurisdiction of the court over the property so far as 
 to try the right to its possession, and to decree its partition ; but it 
 could not authorize the creation of any personal demand against the 
 defendant, even for costs, which could be satisfied out of his other 
 property. 
 
 The judgment is for all the costs in the case, and no order is 
 made tliat they shall be satisfied out of the property partitioned. 
 Had satisfaction been thus ordered, no execution would have been 
 necessary. The execution, also, is general in its direction, com- 
 m.anding the sheriff to make the costs out of any property of the 
 defendant. 
 
 The judgment, as far as the costs are concerned, must, there- 
 fore, be treated as a judgment in personam, and, for the reason 
 stated, it was without any binding obligation upon the defendant; 
 and the execution issued upon it did not authorize the sale made, 
 and, of course, not the deed of the sheriff. Were the conclusion 
 otherwise, it would follow, as indeed it is claimed here, that a joint 
 owner of real property might sue a nonresident cotenant for parti- 
 tion, and, having had his own interest set apart to himself, proceed 
 to sell out on execution the interest of his cotenants for all the costs. 
 
 The judgment of the court below must be affirmed.^^ 
 
 " "Proceedings in partition or to quiet title are not strictly proceedings 
 in rem, for they are not taken directly against property, but they are re- 
 garded, so far as they affect property, as proceedings in rem sub modo, in 
 respect of which, while there must be reasonable notice to the parties, personal 
 service is not essential to jurisdiction and constructive service may Tdc substi- 
 tuted." Per Fuller, C. J., in Meyer v. Kuhn, 65 Fed. 705, 13 C. C. A. 298 
 (1895). Accord: Pillshury v. Dimgan, 9 Ohio, 118 (1839) ; Dillon v. Heller, 
 39 Kans. 599, 18 Pac. 693 (1888) ; Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 
 557, 2Z L. ed. 918 (1889); Allred v. Smith, 135 N. Car. 443, 47 S. E. 597, 65 
 L. R. A. 924 (1904). 
 
 Proceedings regarded as quasi in rem include: Actions commenced by 
 attachment of property, Cliilds v. Diahv. 2.A Pa. 2X (1854") ; Gleason v. IVilson, 
 48 Kans. 500, 29 Pac. 69^ (1892) ; Soulard v. Vacuum Oil Co., 109 Ala. 387,
 
 57J JUDGMENT 
 
 (c) Probate and Administration 
 
 JONE NOELL r. WELLS 
 
 Court ov King's Bench, 1668 
 
 I I.czinc22S" 
 
 Debt by the plaintiff as executrix to her Inisband — the defend- 
 'ant pleads never executrix — and on a trial the plaintiff produced 
 the probate of the will in evidence — the defendant said, that the will 
 was not true, but a forged will. And the chief justice, before whom 
 it Avas tried, was of opinion, that he could not give such evidence 
 directly contrary to the seal of the Ordinary in a matter within his 
 jurisdiction, whereupon a case was made for the opinion of the 
 court, and a verdict taken for the plaintiff, but judgment to be staid 
 if the court should be of opinion, that such evidence might be given ; 
 and upon motion the whole court held, that it could not be given. 
 But evidence may be given, that the seal was forged or repealed, or 
 that there were bona notahilia, for those confess and avoid the seal. 
 But he can not give in evidence that another was executor; or that 
 the testator was non compos mentis,^^ for those falsify the proceed- 
 ings of the Ordinary in cases of which he is judge. But those are to 
 be remedied by appeal. ^^ 
 
 19 So. 414 (1895) ; Oil Well Supt^ly Co. v. Kocn, 64 Ohio St. 422, 60 N. E. 
 603 (1901) ; Glcnny v. Boyd, 26 Pa. Sup er . Ct. 380 (1904) : inquisitions of 
 lunacy, Den v. Clark, 10 N. J. L. 217, 18 Am. Dec. 417 (1828) ; Rg^ers^v. 
 Walker j ji Pa. St. 3 7 1, 47 Am. Dec. 470 (1847) ; Van Dcusen v. Sweet, 51 
 M. V. 378 (1873) ; Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 5 L. R. A. 
 637, 15 Ann. St. 386 (1889) ; foreclosure of liens, White v. Williams, 3 N. J. 
 Eq. 376 (1836); Dclanev w, _G anlt, 30 Pa . St., 63 .Cl8.s8) ; Williams v. Ives, 
 49 111. 512 (1869) ; Lehman v. Hinton, 44 W. Va. I, 29 S. E. 984 (1897) ; 
 Smith V. Moore, 112 Iowa 60, 83 N. W. 813 (1900). As to divorce compare 
 Bater v. Batcr, L. R. (1906) P. D. 209, with Haddock v. Haddock, 201 U. S. 
 562, 26 Sup. Ct. 525, 50 L. ed. 867 (1905) ; as to marriage, Meadozvs v. King- 
 ston, Amb. 756 (1775); Duchess of Kingston Case, 20 How. St. Tr. 355 
 (1776). 
 
 ^'S. C. I Sid. 359, where the action is reported as trover and conversion. 
 
 ^'Accord: C^om mnmucalth v. J \fn trer, l6 S crg. ■& R. (Pa.) 416 (1827); 
 Colton V. Ross, 2 Paige, Ch. (N. Y.) 396, 22 Am. Dec. 648 (1831) ; Vermont 
 Baptist State Convention v. Ladd, 59 Vt. 5, 9 Atl. i (1886) ; Clapp v. Vatcher, 
 9 Cal. App. 462, 99 Pac. 549 (1908), at least as to those entitled to be heard in 
 the probate proceedings. Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 21 L. R. A. 
 680 (1892) ; distinguishing Brigham V. Fayerwcather, 140 l^Iass. 411, 5 N. E. 
 265 (1886), where on bill to set aside A's deed to a stranger, the probate of 
 A's will was held inadmissible as evidence of A's sanity. See also Brown v. 
 Brown, 209 Alass. 388, 95 N. E. 796 (1911). As to refusal of probate, com- 
 pare Arnold v. Arnold, (Ky.) 16 S. W. 585 (1891) ; In re Goldsticker, 192 N. Y. 
 35, 84 N. E. 581 (1908), with McCoys. Clayton. 119 Pa. S t. 133, 12 Atl. 860 
 (1888). 
 
 Where no appeal has been taken from the probate of a will within the 
 time required by law, a gift thereunder can not be impeached on the grovmd 
 that testator was not of age when he executed the will. Stout jv. Young, 217 
 Pa^ 4^, 66 Atl. 659 (1907). 
 
 j\ccord: Plume v. Beale, I Peere, Wm. 388, 2 Eq. Ca. Abr. 421 (1717) ; 
 Kcrrick v. Bransby, 7 Bro. P. C. 358 (1727) ; Allen v. Dundas, 3 T. R. 125
 
 NOELL V. WELLS 573 
 
 (1789) ; Jones V. Jones, 7 Price 663 (1819) ; Moore v. Tanner, 5 T. B. Mon. 
 (Ky.) 42 (1827) ; Fry v. Taylor, 1 Head (Tenn.) 594 (1858). On indictment 
 for forging a will, compare Rex v. Vincent, i Str. 481 (1722), with Rex v. 
 Buttery, R. & R. 341 (1819). It is generally held that the probate of a will can 
 not be impeached collaterally for fraud. Archer v. Mosse, 2 Vem. 8 (1686) ; 
 Allen V. McPherson, I H. L. Ca. 191 (1845) ; Bozven v. Allen, 113 111. 53, 55 
 Am. Rep. 398 (1885); McCambrldge v. Walraven, 88 Md. 379, 41 Atl. 928 
 (1898) ; Vincent v. Vincent, 70 N. J. Eq. 272, 62 Atl. 700 (1905) ; Del Canipo v. 
 Camarillo, l=;4 Cal. 647, 98 Pac. 1049 (1908). But scmblc contra: Orphans' 
 Court V. G ro ff 14 Serg. & R. (PaJ 181 (1826) ; Tebhets v. Tilton, 24 N. H. 
 120 (.ii^5i) ; tyelTs ^state, 7 Pa. C. C. 354 (1 889) ; Covington v. Chamherlin, 
 156 Mo. 574, "S7 S. \V. 'jz'S (1900), and see R helps v. Benso n, 16 1 Pa. St. 418. 
 29 Atl. 86 (1894). ' " 
 
 The judgment or decree o£ a court of probate, acting within the scope 
 of its peculiar and limited jurisdiction, is conclusive upon parties and privies, 
 and, in so far as it is in rem upon all persons, until reversed or set aside. 
 Blackham's Case, I Salk. 290 (1708) ; Dublin v. Chadhonrn, 16 Mass. 433 
 (1820); MrPhrrMo n v Cinjliff tt Serg. & R. (Pa .) 422 (1824); Roach v. 
 Martin, 1 Harr. (Del.) 548 (1835) ; Cecil v. Cecil, 19 Md. 72, 81 Am. Dec. 626 
 (1862); Caujolle V. Ferrie, 13 Wall. _(U. S.) 465, 20 L. ed. 507 (1871); 
 iVillet's Appeal, 50 Conn. 330 (1882) ; Liginger v. Field, 78 Wis. 369, 47 N. W. 
 613 (1890) : Commonwealth v. McDonald. 170 Pa. St. 221, 32 Atl. 410 ( i89.s) : 
 King v. Ross, 21 R. I. 413, 45 Atl. 146 (1899) ; May v. Boyd, 97 Maine 39S. 
 54 Atl. 938, 94 Am. St. 509 (1903) ; Burgess V. Stribling, 134 Mich 2,2,, 95 
 N. W. looi (1903). So, a decree of probate is conclusive as to the formal 
 validity of a will. Potter V. Webb, 2 Maine 257 (1823) ; Poplin v. Hawke, 
 8 N. H. 124 (1835) ; Carpenter V. Cameron. 7 Watts (P a.) 51 (1838) ; Wood- 
 ruff V. Taylor, 20 Vt. 65 (1S47); Vanderpoel \. Van Valkenburg, 6 N. Y. 190 
 (1852) ; Greenwood v. Murray, 26 Alinn. 259, 2 N. W. 945 (1879) ; Loring v. 
 Arnold, 15 R. I. 428, 8 Atl. 335 (1887) ; Wohlgemuth' s Will, no App. Div. 
 644, 97 N. Y. S. 367 (1906); In re Hasselbrook, 128 App. Div. (N. Y.) 
 874 (1908). 
 
 At common law, the probate of a will was not conclusive as to real 
 estate, as to which the ecclesiastical courts had no jurisdiction. Montgomery 
 V. Clark, 2 Atk. 378 (1745) ; Doe v. Cahert, 2 Campb. 387 (1810) ; Tompkins 
 V. Tompkins, i Story C. Ct. 547 (1841) ; Den v. Ayres, 13 N. J. L. 153 (1832) ; 
 Perry v. Szveeny, li App. D. C. 404 (1897). But in many jurisdictions, by 
 statute, probate is conclusive as to real estate, unless contested within the 
 time allowed by law. Judson v. Lake, 3 Day (Conn.) 318 (1809) ; Parker v. 
 Parker, 65 Mass. 519 (1853); Folmar's Appeal, 68 Pa. St. 482 (1871): 
 Norvell v. Lesseur, 33 Grat. (Va.) 222 (1880) ; Cochran v. Young, tqi" Pa. St. 
 22>2> {"^^^Z^ ; Wettnch v. Horn. 20T Pa. 201 50 Att~i ooi (1902). see a ct of Tun e 
 2^. i89.S, P . LTza^Nezi'by v. Blakely, 90 Atl. (JNI. J.) 318 (1913). Or, at least, 
 prima j-acie e-v-Tdence of title. Allaire v. Allaire, 27 N. J. L. 312 (1875), see 
 Act of 1898, § 20, N. J. Comp. Stat. (1910), vol. 3, p. 3819; Thomas v. Wil- 
 liamson, 51 Fla. 232, 40 So. 831 (1906); New York Code Civil Procedure, 
 §§ 2625, 2653a; Lewis V. Cook, 150 N. Y. 163, 44 N. E. 778 (1896) ; Henriques 
 V. Yale University, 28 App. Div. 354, 51 N. Y. S. 284 (1898) ; In re Clyne, 
 72 Misc. 593, 131 N. Y. S. 1090 (1911) ; Beardsley v. Beardsley, L. R. i Q. B. 
 746 (1899). As to foreign wills, see .Opp v. Chess. 204 Pa. 401, ^d Atl. 354 
 (1903) ; Dibble v. Winter, 247 111. 243, 93 JM. E. 145 (1910). 
 
 The question whether an appointment by will is revoked by the marriage 
 of the donee of the power, does not involve the validity of the will, and is 
 not affected by the terms of the decree admitting the will to probate. Paine 
 V. Price, 184 Mass. 350 (1903). See also Washbon v. Cope, 144 N. Y. 287, 
 39N. E. 388 (1895).
 
 5~4 JUDGMENT 
 
 THOMAS 7'. PEOrLE 
 
 SiTRF.ME Court of Illinois, 1883 
 
 107 ///. 517 
 
 An action was brouc^ht in the name of the state to the use of John 
 Joiner against Charles W. Thomas on liis official bond as master in 
 chancery. It appeared that Joiner had left his home and not having 
 been heard from for more than seven years, his brother applied to 
 the county court for administration on his estate, Vv'hich was granted. 
 Thomas then upon the demand of the administrator paid over the 
 proceeds of a sale in partition of real estate belonging to Joiner. 
 Joiner subsequently turned up alive and sued Thomas to recover 
 this fund and recovered judgment, from which Thomas appealed. 
 C^ne of the contentions of Thomas was, that the decision of the court 
 granting administration could not be collaterally attacked.-" 
 
 IMuLKEY, J.: It must be conceded that if the probate court had 
 autliority to act at all in the particular case before it, then its adjudi- 
 cation, like that of any other court, became binding and conclusive 
 upon all parties to tlie proceeding, until reversed or otherwise set 
 aside. The real question therefore is, whether the court had any 
 authority to act at all. The contention of appellant is, "that the juris- 
 diction of the probate court did not depend upon the death of Joiner, 
 but upon the fact that that court was set in motion by the application 
 for an administrator, and having been so set in motion, its jurisdic- 
 tion to investigate and decide was complete, and its decision can not 
 be collaterally attacked as to anything the court was called upon to 
 decide." This proposition, in the light of the facts as confessed upon 
 the record before us, we regard as fundamentally erroneous. Juris- 
 diction, in the general and most appropriate sense of that term, as 
 applied to the subject-matter of a suit at law or in equity, is always 
 conferred by law, and it is a fatal error to suppose tlie power to 
 decide in any case rests solely upon the averments in a pleading. It 
 is true that a court is not permitted, on its own motion, to institute a 
 suit between the parties to a controversy. As claimed by appellant, 
 there must be a properly framed complaint or other pleading show- 
 ing a cause of action within the jurisdiction of the court, before it 
 can lawfully proceed to adjudicate. But behind all this there must 
 be power in the court, conferred by law, to act in a real case of the 
 character of the one supposed by the pleading or complaint, and if 
 there is not, the whole proceedings, and all acts done under it, will be 
 inoperative and void. 
 
 The position of appellant is well met by the case of Griffith v. 
 Frcsier, 8 Cranch, 23, where the question in hand came under con- 
 sideration. Chief Justice Marshall, speaking for the court, said in 
 that case: "To give the Ordinary jurisdiction, a case in which, by 
 law, letters of administration may issue, must be brought before 
 him. In the common case of intestacy it is clear that letters of 
 
 ^'The facts are abridged and the arguments and part of the opinion of 
 the court omitted.
 
 THOMAS V. PEOPLE 575 
 
 administration must be granted to some person by the Ordinary; 
 and though they should be granted to one not entitled by law, still 
 the act is binding until annulled by the competent authority, because 
 he had power to grant letters of administration in the case. But 
 suppose administration to be granted on the estate of a person not 
 really dead ? The act, all will admit, is totally void. Yet the Ordinary 
 must always inquire and decide whether the person whose estate 
 is to be committed to the care of others be dead or in life. It is a 
 branch of every cause in which letters of administration issue. Yet 
 the decision of the Ordinary that the person on whose estate he acts 
 is dead, if the fact be otherwise, does not invest the person he may 
 appoint with the character or powers of an administrator. The 
 case, in truth, was not one within his jurisdiction. It was not one in 
 which he had a right to deliberate, — it was not one committed to 
 him by the law ; and although one of the points occurs in all cases 
 proper for his tribunal, yet that point can not bring the subject 
 within his jurisdiction." 
 
 The general proposition that under our system of government 
 no one can be deprived of his life, liberty or property without due 
 process of law, is not denied or questioned, and as John Joiner 
 was in no sense a party to the proceeding before the probate court 
 when letters on his estate were granted, on what principle can he be 
 said to be bound by the action of the court in making the grant? 
 The general rule unquestionably is, that no one is bound by an 
 adjudication of w^hich he had no notice or to which he was not a 
 party. Testing the present case by this rule, appellee is not clearly 
 bound.^^ 
 
 Judgment affirmed. 
 
 ''Accord: Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896 (1893) ; Cunnins v. 
 Reading School Dist., 198 U. S. 458, 49 L. ed. 1125 (1904), affirming 206 Pa, 
 469 (1903) and Blinn v. Nelson, 222 U. S. I (1911), affirming 197 Mass. 279 
 are distinguishable upon the terms of the state statutes. Generally, the action 
 of a court of probate in granting administration can not be attacked in an- 
 other court in a collateral proceeding. Ornisbee v. Piper, 123 Mich. 265, 82 
 N. W. 36 (1900) ; McCooey v. A^ Y., &c., R. Co., 182 Mass. 205, 65 N. E. 
 62 (1902) : ZtVy/gr y. Storev. 220 Pa. 4 77, 69 Atl. 894 (1908); Connors v. 
 Cunard S. Co., 204 Mass. 310, 90 N. E. 601 (f9io) ; J^accelli v. Del. & H. Co., 
 138 N. Y. App. Div. 623, 122 N. Y. S. 849 (1910). But the granting of let- 
 ters of administration is, at the best, no more than prima facie evidence of 
 the death of the intestate. And, if he is not in fact dead, the probate court is 
 without jurisdiction and the letters are invalid. Allen v. Dundas, 3 T. R. 125 
 (1789); Thompson v. Donaldson, 3 Esp. 63 (1800) ; Clayton v. Gresham, 
 10 Ves. Jr. 287 (1804) ; Moons v. De Bcrnales, i Russ. 301 (1S26) ; Newman 
 V. Jenkins, 27 Mass. 515 (1830); French v. Frasier, 7 J. J. Mar. (Ky.) 425 
 (1832) ; Duncan v. Stewart, 25 Ala. 408, 60 Am. Dec. 527 (1854) ; English v. 
 Murray, 13 Tex. 366 (1855) ; Morgan v. Dodge, 44 N. H. 255, 82 Am. Dec. 
 213 (1862) ; Jochumsen v. Bank, 85 Mass. 87 (1861) ; Tisdale v. Connecticut 
 M. L. Co., 26 Iowa 170 (1868) ; Cunnincihani w Smith 70 Pa. 450 (1872 ) ; 
 Mutual L. Co. v. Tisdale, 91 U. ^7238, 23 JL. ed. 314 (1^7 S) ; Lancaster v. 
 Washington L. Ins. Co., 62 Mo. 121 (1876) ; Epping v. Robinson, 21 Fla. 36 
 (1884) ; Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746 (1878). 
 
 Roderigas v. East River Savings Inst., 63 N. Y. 460^ 20 Am. Rep. 555 
 (1875), contra, approved in Plume v. Howard Savings Inst., 46 N. J. L. 211 
 (1884) is overruled. Matter of Killan, 172 N. Y. 547 (1902) ; Marks v. Emi- 
 grant I. S. Bank, 122 App. Div. (N. Y.) 661, 107 N. Y. S. 491 (1Q07) : Williams 
 V. Post, 158 App. Div. (N. Y.) 818, 143 N. Y. S. 1027 (1913).
 
 570 JUOGMKN'T 
 
 IIF.FXKR z'. ALP.RK^TIT 
 
 Supr eme ^ ourt of rr.NNSYLVANjA, ipii 
 231 Pa. 396. 
 
 Srirr facias to revive lien of jiulf:^mcnt. The court directed a 
 verdict for the plaintiiT. Defendant ajtpealcd. 
 
 Per CuRiA^f : This was a scire facias to revive and continue 
 the Hen of a judj]^icnt entered in the common pleas, upon the fiHng 
 of a certified transcript from the orphans' court, showing a balance 
 due by executors to the widow of the decedent. At the trial, offers 
 of testimony were made, to show that before the adjudication of the 
 orphans' court one of the executors had sold tlie widow six houses 
 under a verbal agreement with her that he, and his coexecutor 
 "were to take of such moneys as might come into their hands" as 
 executors, the amount of the purchase price of the houses that was 
 unpaid. The purpose of the offer, as stated by counsel, was to prove 
 that long prior to the adjudication, the amount the widow was found 
 to be entitled to, had by the agreement mentioned, been paid her, 
 and that nothing was then due her by the executors. The assign- 
 ments of error relate to the overruling of these offers and the direc- 
 tion of a verdict for the plaintiff. 
 
 In settling the accounts of executors, administrators and guard- 
 ians the jurisdiction of the orphans' court is exclusive, and in a 
 proceeding on its transcript in the common pleas, no defenses but 
 payment after the adjudication and iiid iiel record are available. 
 Bernhardt v. Taylor, 223 Pa. 307. 
 
 If the agreement attempted to be set up could, as argued, be 
 considered an equitable assignment of an amount sufficient 10 pay 
 the balance of the purchase money of the houses, it was, in effect, 
 a payment pro tanto by the executor to the widow. The adjudica- 
 tion was conclusi\e of the amount due by the former to the latter, 
 and that matter could not be inquired into by the common pleas. 
 
 The judgment is affirmed.-^ 
 
 "Tlie final settlement of the account of an executor or administrator, 
 after due notice, is generally conclusive upon all matters coming directly 
 before the court. Sparhaiijk v. Bucll, 9 Vt. 41 (1837); Sever v. Russell, 58 
 Mass. 513, 50 Am. Dec. 811 (1849) ; Parcher v. Busscll, 65 Mass. 107 (1853) ; 
 Shoemaker v. Brown, 10 Kans. 3?>3 (1872); Biiltcley v. Andmvs, 39 Conn. 
 523 (1873) ; Jones V. Chase, 55 N. H. 234 (1873) ; Ilutton v. Williams, 60 Ala. 
 107 (1877) : Simmons V. Goodell, 63 N. H. 458, 2 Atl. 897 (1885) ; Holden v. 
 Lathrop, 65 ^lich. 652, 32 N. W. 879 (18S7) ; Succession of Rabasse, 50 La. 
 Ann. 746, 23 So. 910 (1898); Mulcahey V. Dmv, 131 Cal. Ji, 63 Pac. 158 
 (1900) ; Bonner v. Gorman, 71 Ark. 480, 77 S. W. 602 (1903) ; Piper' s Estate, 
 208 Pa. 6^6. >7 Atl 1 1 18 (1904); ll'yckoff V. O'Xiel, 71 N. jTTIq. 58l, 63 
 Atl. 982 ( K)o6) ; Alexander's Pslate, 214 Pa. -<6q. 63 Ai l 799 (1906) ; Sin- 
 nickson v. Perkins, 231 III. 492, 83 I\. E. 194 (1007) ; Webber Hospital Assn. 
 V. McKenaie, 104 Maine 320, 71 Atl. 1032 (irK>8); Harris v. Harris, 82 Vt. 
 199 (1909) ; Connor v . Gibbons. 228 Pa. 617. 77 A tl. 1009 (1910); Goodman 
 V. Griffith, 155 Alo. App. 574, 134 S. W. 1051 (1910); Doane's Estate, 64 
 Wash. 303 (191 1 ). As to New York see Code of Civil Procedure, §§ 2742,
 
 WORK Z: PRALL 5~7 
 
 SECTION 7. RES JUDICATA 
 
 (a) Merger 
 
 WORK f . PR-\LL 
 
 Su perior ("ot-rt of PFN-x.sYT.VAK TA,jrf)r>j 
 
 26 Superior Court 104. 
 
 Appeal by defendant from an order of tlie court of common 
 pleas of Washington County discharging a rule to open judgment 
 in the case of W. x\. Work to use of Crouch Brotliers against 
 Lydia M. Prall and H. L. Prall.^^ 
 
 Henderson, J. : The defendants gave tlieir judgment promissory 
 note to the plaintiff on March 21, 1902. A judgment was entered 
 thereon by virtue of the warrant of attorney which tlie note con- 
 tained, on March 22, 1902, and on the 24di of tlie same montli the 
 judgment was assigned to tlie use plaintiffs. The note was pavable 
 in three montlis from date and no notice of tlie assignment of tlie 
 judgment was given to the defendants until about five months after 
 the same became due. The defendants' evidence, taken on die rule to 
 open judgment, was uncontradicted and would warrant a jurv in 
 finding that pa>Tnents had been made by Lydia M. Prall sufficient 
 in amount to discharge tlie debt before the defendants had notice 
 that the judgment had been assigned. These pa>-nients were made 
 to one Richardson, a partner of tlie plaintiff" to whom a note for a 
 similar amount had been given by tlie defendants for a like consid- 
 eration. 
 
 As between the plaintiff and the defendants the latter showed a 
 sufficient cause to entitle them to have the judgment opened. Unless 
 therefore, the equitable plaintiff's have a better position than tlie 
 payee of tlie note, tlie relief asked for should be gi-anted. 
 
 2743; In re Randall. 152 N. Y. 50S. 46 X. E. 045 (iSq;V, In re Hal- 
 sted, 41 Misc. 606, 85 N. Y. S. 301 (ux)3) ; Chester v. Buffalo Car Mfa. 
 Co., 183 N. Y. 425, 76 N. E. 4S0 ( 1906) ; Bozcer's Estate, 24 Fa. 38 8. 
 87 Atl. 711 (1913). The allowance or rejection ot a~ctainr~by the pro5ate 
 court is usually held to have the force of a judsmient as to immediate parties 
 and their privies. MeKinnev v. Davis, 6 Mo. 501 (1840) ; Doolev v. 
 U'atkins, 5 Ark. 705 (1843); Stone v. Jl'ood. 16 III. 177 (l8'^4); 
 Moerehen v. Stoll. 48 Wis. 307, 4 N. W. 3:^2 (1870) : Snellinc; v. Kroger. 89 
 Iowa 247, 56 N. W. 446 (1803) ; Hioli's Estate, no Pa. St j ; ^. ?r, Atl. 421, 
 423 (1890); Le-u-is V. IVeleh. 47 Minn. 103. 48 N. W. 608, 40 N. W. 665 
 (1891); IVileox V. Gilchrist, 85 Hun i, 32 N. Y. S. 608 (189O ; Matter of 
 
 Clapp. 30 Misc. 395, 63 N. Y. S. 1006 (1900) ; Ynrum V Cmumrrruil \n f 
 
 Bank, iq:; Pa. St^iK a6 Atl. 94 (looo) ; Estate of Riehmond, 9 Cal. App. 
 413. 99 P'ic. 558 (190ST; Matter of Guarantv Trust Co.. m App. Div. O58, 
 116 N. Y. S. 147 (1909) ; Wood V. Sharp. 150 Ky. 46, 166 S. VV. 787 (1014). 
 Contra: State v. Bowen, 4s Miss. 347 (1871") ; Lezering v. Levering, 64 Md. 
 399. 20 Atl. I (1885) ; Haiermale v. Houck. 122 Md. 82 (1910). 
 
 ^The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 37 — Civ. Proc.
 
 578 JL-DGMENT 
 
 By the confession of judgment tlie plaintiffs' cause of action 
 became merged in the judgment. The original claim having served 
 its purpose as evidence upon which a judgment was obtained, 
 expended its force and the warrant of attorney authorizing the 
 judgment was exhausted. Black on Judgments, section 674; Ries v. 
 Rozclaud, II Fed. 657; Scliuler v. Israel, 27 Fed. 851. The note 
 does not survive as a cause of action. In the very nature of the 
 case tlie inferior obligation evidenced by tlie note has been changed 
 into a matter of record and the remedy of the payee is on the 
 judgment. The judgment obtained thereon does not possess the 
 qualities of a negotiable note. 
 
 The assignee of a judgment takes the same subject to existing 
 equities between the parties thereto and has no better position than 
 would the judgment creditor have occupied if he had not executed an 
 assignment. Filbert v. Ha-.ck. 8 Watts, 443; A'oble v. Thompson Oil 
 Co., 79 Pa. 354 ; Black on Judgments, section 953. In order to avoid 
 the effect of the payment ly the defendant to the plaintiff' it was tlie 
 dut>- of the assignee to give the former notice of the assignment. 
 "It is impossible to conceive upon what principle of justice a debtor 
 should be prejudiced by an assignment of which he knows notliing. 
 If the part}- whose interest and dutv' it is to give him notice so that 
 he can regulate his conduct according to the new relation, fails to 
 do so he should certainly not be compelled to suffer." Gaiillagher v. 
 Caldzcell, 22 Pa. 300; Xohle v. Thompson Oil Co., 79 Pa. 354; Lee 
 V. Delehanty, 25 Hun 197; May v. Nezcingham, 17 Pa. Super. Ct. 
 469: Black' on Judgments, section 950. This rule applies to the 
 assignment of a mortgage. Foster v. Carson, 159 Pa. 477. The 
 entr}- of the assignment on the records in the court of common pleas 
 was not notice to the defendants. The judgment docket was not for 
 their benefit and they are not required to examine it. Henry v. Broth- 
 ers, 48 Pa. 70; Horstman v. Gerker, 49 Pa. 282. 
 
 Order reversed.^* 
 
 -""The general rule is, that by a judgment at law or a decree in chancery, 
 the contract or instrument upon which the proceeding is based becomes en- 
 tirely merged in the judgment. By the judgment of the court, it_ loses all 
 of its vitality- and ceases to bind the parties to its execution. Its force and 
 effect are then expended, and all remaining legal liability is transferred to 
 the judgment or decree. Once becoming merged in the judgment, no further 
 action at law or suit in equity- can be maintained on the instrument." IVayman 
 V. Cochrane, 35 111. 152 (1864). "The original contract is drowned in the 
 judgment." Biddleson v. IVhitel, i W. Bl. 506 (1764). Accord: Thatcher v. 
 Gammon. 12 Mass. 26S (1815) ; O'.i'cns v. Bouie, 2 Md. 457 (1852) ; Peters 
 V. San ford, I Den. (X. Y.) 224 (1845) ; Pike v. McDonald, 32 Maine 418. ^4 
 Am. Dec. 597 (1851) ; Mitchell v. Mayo, 16 111. 83 (1854) ; Temple v. Scott, 3 
 Minn 419 (1859) ; North v. Mudge, 13 Iowa 496, 81 Am. Dec. 441 (1862) ; 
 Barnes v. Gibbs, 31 X. J. L. 317. 86 Am. Dec. 210 (1865) ; Blxstone v. Bl\ston e, 
 51 Pa. 373 (l86 s) ; Ober v. Gallagher, 93 U. S. 199, 23 L. ed. 829 ( 1876) ; Con- 
 necticut }l. lTCo. v. Jones. 8 Fed. 303 (1880) ; Cooksev v. Kansas City R. 
 Co., 74 Mo. 477 (1881) ; Grant v. Burgwyn, 88 X. Car. 95 (1883) ; BroTtn v. 
 West, 73 Maine 23 (1881") ; Davies v. AVtt- York Maxor, Aldermen and Com- 
 monalty of X. Y., 93 X. Y. 250 (1883) ; Bro-an v. Darrah, 95 Ind. 86 (1883) ; 
 Price V. Bank, 62 Kans. 735, 64 Pac. 637 (1901) ; Rossitcr v. Mcrriman, 80 
 Kans. 739, 104 Pac. 858 (1909); Scherl v. Flamm, 133 App. Div. (X. Y.) 
 274 (1909); Roh.rbacher v. Walsh, 170 Mich. 59, 135 N. W. 907 (1912); 
 Harper v. Daniels, 211 Fed. 57 (1914).
 
 MEMMER V. CAREY 670 
 
 PETER MEMMER AND ANOTHER v. WILLIAM N. CAREY 
 Supreme Court of Minnesota, 1883 
 
 30 Minn. 458. 
 
 Appeal by defendant from a judgment of the municipal court of 
 St. Paul. 
 
 By the Court: There was a running account between plaintiffs 
 and defendant, for butcher's meat sold by the former to latter from 
 time to time, between January i and October 6, 1882 ; the balance 
 remaining unpaid at the latter date being something over $160. On 
 October 19th, plaintiffs recovered judgment in a justice's court for 
 $100 of this balance, having commenced suit therefor on October 
 nth. There being no evidence in the case at bar having any reason- 
 able tendency to show that the meat was furnished upon any agree- 
 ment for credit, the price of it was due upon delivery, and hence 
 plaintiffs might have brought suit for the whole balance at the time 
 when they sued for the $100. In the present action plaintiffs seek 
 to recover the remainder of the balance mentioned. But the judg- 
 ment of the justice is well pleaded in bar as a former recovery 
 upon the same cause of action ; for it is a general rule (in the absence 
 of special facts to create an exception) that an indebtedness of his 
 customer to a retail dealer, upon a running account, furnishes one 
 entire cause of action, and if such cause of action is split, and a 
 recovery had upon a part of it, the judgment is a bar to any further 
 recovery thereupon. Am. Button Hole, etc. Co. v. Thornton, 28 
 Minn. 418; Guernsey v. Carver, 8 Wend. 492: Secor v. Sturqis, 16 
 N. Y. 548. 
 
 Judgment is reversed.^^ 
 
 ^^"An entire claim, arising either upon a contract or from a wrong, can 
 not be divided and made the subject of several suits; and if several suits be 
 brought for different parts of such claim the pendency of the first mav be 
 pleaded in abatement of the others and a judgment upon the merits in either 
 will be available as a bar in the other suits. But it is entire claims only 
 which can not be divided within this rule, those which are single and indi- 
 visible in their nature. The rule does not prevent, nor is their any principle 
 which precludes the prosecution of several actions upon several causes of 
 action." Per Strong, J., in Secor v. Sturgis, 16 N. Y. 548 (1858). Accord: 
 Girling v. Aldas, 2 Keb. 617, I Vent. 73 (1670); Johnson v. Long, i Ld. 
 Raym. 370 (1697) ; S^nifh v. Jones, 15 Johns. (N. Y.) 229 (1818) ; Bates v. 
 Quattlebom, 2 N. & McC. (La.) 205 (1819) ; IVillard v. Spcrrv, 16 Johns. 
 (N Y.) 121 (1819) ; fnqrahmn v ^(7//, tt ^Prc r. ^^ R . rPn ^ yR (1824) ; Hite 
 V. Long, 6 Rand. (Va.) 457, 18 Am. Dec. 719 (1828) ; Bac/ot v. Williams, 3 B & 
 C.235 (1824) ; Miller V. Covert, i Wend. (N. Y.) 487 (1828) ; Goodrich w. Yale, 
 97 Mass. 15 (1867) ; Mcintosh v. Lown, 49 Barb. (N. Y.) 550 (1867) ; Gihbs v. 
 Criiikshank, L. R. 8 C. P. 454 (1873) ; Burritt v. Belfrcy, 47 Conn. 323, 36 Am. 
 Rep. 79 (1879) ; Sykes v. Gcrher, 98 Pa. St. 179 (18S1) ; Lazv v. McDonald, 62 
 How. Pr. (N. Y.) 340 (1881) -. Buck v. Wilson, tt^ Pa. 423. 6 Atl. 07 (1886) ; 
 Vanuxem v. Burr, 151 Mass. 386, 24 N. E. 773, 32 Am. St. 4^8 (1890) ; Hill 
 V, /or, 149 Pa. 24.^ 24 Atl. 29^ ( iRnpA • WUlnunhhy V. Atkinson, 96 Maine 372752" 
 Atl. 756 (1902) ; Welch v. Buchans Soap Corp., 56 Misc. 689, 107 N. Y. S. 
 616 (1907); Johnson v. Herold, i6i Fed. 593 (1908); Warren v. Shechan, 
 156 Mich. 432, 120 N. W. 810 (1909) ; Kennedy v. Neva York City, 196 N. Y.
 
 580 JUDCMF.NT 
 
 ERANNENBURG r. INDIANArOLIS, PITTSBURGH & 
 CLEVELAND RAILROAD CO. 
 
 Supreme Court of Indiana, 1859 
 
 13 I)td. 103°* 
 
 Hanna, J.: This was an action, commenced before a justice of 
 the peace, for the value of a mare killed by the cars of the company, 
 at a place where the road was not fenced. Answer tiled. Trial ; 
 and judgment for the plaintiff for one hundred dollars. Defendants 
 appealed to the circuit court, where the plaintiff filed a demurrer to 
 the first paragraph of the answer, which was overruled, and judg- 
 ment for defendants. 
 
 IQ, 89 N. E. 360 (1909) ; Pomeroy v. Prescott, 156 Maine 401 (1910) ; Burt v. 
 Trust Co ., d'^ Pa. Super. Ct. .■^20 ( 191 1 ) ; Sl^icr v. Locust Laundry. s6 V :i. 
 Supe r. Ct.^323-Ci9M) ; Sharp v. McBridc, 134 La. 250 (1914); J^^^ principle 
 
 15 generally applicable to actions on running accounts. Phillips V. Berick, 
 
 16 Johns. (N. Y.) 136, 8 Am. Dec. 299 (1819) ; Avery v. Fitch, 4 Conn. 362 
 (1822) ; Guernsey v. Carver, 8 Wend. (N. Y.) 492, 24 Am. Dec. 60 (1832) ; 
 Stevens v. Lockwood, 13 Wend. 644, 28 Am. Dec. 492 (1835) ; Bendernagle 
 V. Cocks, 19 Wend. (N. Y.) 207 (1838) ; Oliver v. Holt, 11 Ala. 574, 46 Am. 
 Dec. 228 (1847) ; Lpcj an v. Cgff rgy^^O-Pa., lod XJ-8a81; Lucas v. LeCompfe, 42 
 111. 303 (1866) ; TIayward v. Clark, 50 Vt. 612 (1878) ; Corey v. Miller, 12 R. I. 
 237 (1879) ; Manle'y v. Tufts, 59 Kans. 660, 54 Tac. 683 (1898) ; De Graff v. 
 Mayper, 63 Misc. 568, 118 N. Y. S. 571 (1909)- Contra: Badger v. Titcomb, 
 32 Alass. 409, 26 Am. Dec. 611 (1834) ; King v. Sheriff, I B. & Ad. 672 
 (1831), and see Pennebaker v. Parker, ?,?, Pa. Su per. Ct. 4.S8 (1907)- The rule 
 does not apply to items accruing or becoming due after suit brought. Mc- 
 Laughlin V. hi ill, 6 Vt. 20 (1834) ; Ster ner v. Grover , 3 W. & S. 136 (^1842) ; 
 Beck V. Devereaux, 9 Nebr. 109, ~2^. W. 365 (1879) ; Jacohy v. Peck, 
 23 Cal. App. 363 (1913). On breach of contract of employment by wrong- 
 ful discharge it is generally held that but a single cause of action arises, 
 a recovery in which is a bar to a subsequent suit on the same contract. 
 Booge v. Pacific Railroad, 22> Mo. 212, 82 Am. Dec. 160 (1862); Col- 
 burn V. IVoodzvorth, 31 Barb. (N. Y.) 381 (i860) ; Roscnmueller v. Lampc, 
 89 111. 212 (1878) ; Richardson v. Eagle M. IV., 78 Ind. 422, 41 Am. Rep. 
 584 (l88i); Smith v. Gilbert Lock Co., 4 N. J. L. 312 (1881) ; Kccdy v. 
 Long, 71 Md. 385, 395, 18 Atl. 704, 5 L. R. A. 759 (1889) ; Lichtenstein v. 
 Brooks, 73 Tex. 196, 12 S. W. 975 (1889) ; Kalin v. Kahn, 24 Nebr. 709, 40 
 N. \\^ 135 (1888) ; Omstead v. Bach, 78 Md. 132 (1893) ; Jaynes v. Allen Co., 
 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821 (1886) ; Monarch Cycle Mfg. 
 Co. V. Mueller, 83 III. App. 359 (1898); Aiie v. Nadeau, 93 Maine 282, 44 
 Atl. 891, 74 Am. St. 346 (1S99) ; U'aldron v. Ilendrickson, 40 App. Div. 7, 
 57 N. Y. S. 561 (1899) ; Ilo-ii'ay v. Going-Northrup Co., 24 Wash. 88, 64 Pac. 
 135, 6 L. R. A. (N. S.) 48, 49 (1901) ; Ornstcin v. Yahr, &c.. Drug Co., 119 
 Wis. 429, 96 N. W. 826 (1903); James v. Parsons, 70 Kans. 156, 78 Pac. 
 438 (1904) ; Livingston v. Klaw, 137 App. Div. 639, 122 N. Y. S. 264 (1900) ; 
 IVillingham V. Buckeye C. O. Co., 13 Ga. App. 253, 79 S. E. 496 (1913) ; 
 Menihan v. Hopkins, 129 Tenn. 24, 164 S. W. 775 (1914). Elsewhere, where 
 wages are payable in installments, separate suits may be maintained upon each 
 installment as it falls due, but all installments actually due must be included 
 in one action. Jenkins v. Scranton, 20^ Pa. .sq8. St A tl. 788 (1903) ; Strauss 
 V. Mcertief, 64 Ala. 299, 3» Am. Kep. 8 (1^79) \ Isaacs v. Davies, 68 Ga. 169 
 (1881) ; McEvoy v. Buck, 27 Minn. 402 (1887) ; IVilliams v. Luckctt, 77 Miss. 
 394, 26 So. 967 (1899); Stradley v. Bath P.^ _Ql^ 228^ Pa. 108,^7 Atl. 242 
 (1903). See also Bernard v. Hoboken, 27 N. J. L. 412 (1859); Planders v. 
 Canada A. P. S. S. Co., 161 Fed. 378 (1908) ; Webb v. Depew. 152 Mich. 698, 
 116 N. W. 560 (1908). 
 
 •'Part of the opinion is omitted.
 
 BRANNENBURG V. INDIANAPOLIS, P. & C. R. CO. 581 
 
 The said paragraph is, in substance, that if the animal, etc., was 
 injured, etc., it was at the same time and place at which another 
 horse was injured, for which said plaintiff brought suit before said 
 justice for one hundred dollars, upon which issue was joined, and 
 upon the trial judgment was recovered by said plaintiff against said 
 defendants for one hundred dollars, etc. 
 
 The question argued by counsel, is, whether the pleadings show 
 but one trespass, and if so, whether a separate suit can be main- 
 tained for each animal killed. 
 
 We think the paragraph of the answer sufficiently avers, that 
 at the same time and place, and by the same act, two horses of the 
 plaintiff were killed by the cars of the defendants, and that the 
 plaintiff had sued and recovered a judgment for the value of one of 
 said animals. 
 
 We are of opinion that, under the circumstances disclosed in this 
 case, the plaintiff could not bring a separate suit for each animal 
 killed. 
 
 It is not necessary for us to decide whether, in a case where 
 animals by one act destroyed are of a greater value than one hundred 
 dollars, the owner can abandon any attempt to recover except for a 
 part, within the jurisdiction of a justice, or not. What we do 
 decide, is, that one substantive and complete cause of action, arising 
 out of the same tort, can not be divided into several suits. If A 
 should shoot into a flock of sheep of B, and kill half a dozen, we 
 can not think that half a dozen rights of action would thereby 
 accrue to B ; he would be entitled to recovery in one suit for the 
 whole damage done, and if he failed to bring his action for the 
 whole injury sustained, it would be his own fault. 
 
 Judgment affirmed.^^ 
 
 "Accord: Fetter v. Beale, 1 Salk. 11 (1700); Farrington v. Payne, 15 
 Johns. 432 (1818), where it is said by the court: "Suppose a trespass or a 
 conversion of a thousand barrels of flour, would it not be outrageous to allow 
 a separate action for each barrel?" Cook v. Cook, 2 Brev. (S. C.) 349 (1810) ; 
 Thompson v. Rogers, 2 Brev. (S. C.) 410 (1810) ; Hodsoll v. Stallebrass, 11 
 Ad. & El. 301 ( 1840) ; Whitney v. Clarendon, 18 Vt. 252 ( 1846) ; The Kalamazoo, 
 g Eng. L. & Eq. 557 (1851) ; Cunningham v. Morris, 19 Ga. 583, 65 Am. 
 Dec. 6ll (1856) ; Marble v. Keyes, 75 Mass. 221 (1857) ; Herriter v. Porter, 
 23 Cal. 385 (1863); McCaffrey v. Carter, 125 Mass. 330 (1878); Foster v. 
 Napier, 73 Ala. 595 (1883) ; Tidwcll v. Witherspoon, 21 Fla. 359, 58 Am. Rep. 
 665 (1885); Bethlehem G. Co. v. Yn dcr. 112 Pa. 1^ 6, 4 Ail. 42 (1886); 
 Knozvlton v. A'. Y. & N. E. R. Co., 147 Mass. 606, 18 N. E. 580, i L. R. A. 
 625 (1888); Beronio v. Southern Pacific R. Co., 86 Cal. 415, 24 Pac. 1093, 
 21 Am. St. 57 (1890) ; Skeen v. Springfield E. Co., 42 Mo. App. 158 (1890) ; 
 Thisler v. Miller, 53 Kans. 515, 36 Pac. 1060, 42 Am. St. 302 (1894) '•_gn^;»rn» 
 V. Penna R. Co.. 6 Pa. Suner. Ct 383 (1 808) ; Packham v. Fire Ins. Co., 91 Md. 
 515, 40 Atl. 1066, 50 L. K. A. «28, «o Am. St. 461 (1900) ; Stern v. Riches, in 
 Wis. 591, 87 N. W. 555, 87 Am. St. 892 (1901) ; Barnard v. Devine, 34 Misc. 
 182, 68 N. Y. S. 859 (1901) ; Burage v. Kelchner, 66 Kans. 642, 72 Pac. 
 232 (1903) ; Dills V. Justice, 137 Ky. 822, 127 S. W. 472 (1910) ; Cordner v. 
 Hall, 84 Conn. 117, 79 Atl. 55 (1911). Otherwise where the claim arises from 
 several torts, White v. Moseley, 25 Mass. 356 (1829); Friend v. Dunks, 37 
 Mich. 25 (1877) ; Rockwell v. Brown, 36 N. Y. 207 (1867) ; 4j]jj± £hi v. Dye 
 Works 107 Pa. 2^3 ( 1800) : Pantell v. Coal Co., 204 Pa. 1^8. .S3 Atl. 7.sr" 
 (1902) ; Harp v. Southern R. Co., 150 Ky. 564, 150 S. W. 663 (1912) ; Mc- 
 Knight v. Minneapolis S. R. Co., 149 N. W. 131, 127 Minn. 207 (1914).
 
 5S2 JUDGMENT 
 
 REILLY V. SICILIAN ASPHALT PAVING CO. 
 
 Court or Appeals of New York, 1902 
 
 170 A'. Y. 40. 
 
 CuLLEN, J. : The appellant claimed tliat while driving in Central 
 Park in the city of New York both his person and his vehicle were 
 injured in conse([uence of collision with a gravel heap placed on 
 tlie road through tlie negligence of the defendant. Thereupon he 
 brought an action against the defendant in the court of common 
 pleas to recover damages for tlie injury to his person. Subse- 
 quently he brought another actloti in one of the district courts in 
 the city of New York to recover for the injury to his vehicle. In 
 this last action he obtained judgment, which was paid by tlie 
 defendant. Thereafter the defendant set up by supplemental answer 
 the judgment in the district court suit and its satisfaction as a bar 
 to tlie further maintenance of the action in the common pleas. On 
 the trial of the case in the Supreme Court (to which under the 
 Constitution the action was transferred), it was held that the plain- 
 tiff's right of action was merged in the judgment recovered in the 
 district court and his complaint was dismissed. The judgment 
 entered upon this direction was affirmed by the appellate division 
 and an appeal has been taken to tliis court by allowance. 
 
 The rule is that a single or entire cause of action can not be 
 subdivided into several claims and separate actions maintained 
 thereon. Secor v. Stiirgis, 16 N. Y. 548; Nathans v. Hope, yy 
 N. Y. 420. As to this principle there is no dispute. Therefore, 
 the question presented by this appeal is whether from the defend- 
 ant's negligence and the injury occasioned thereby to the plaintiflF 
 in his person and his property there arose a single cause of action 
 or two causes of action, one for the injury to his person and the 
 other for injury to his property.-^ * * * 
 
 The question now before us has been the subject of conflicting 
 decisions in different jurisdictions. In England it has been held by 
 the Court of Appeals, Lord Coleridge, Chief Justice, dissenting,^^ that 
 
 Where an injury is of such a nature as to be abatable, the law will not pre- 
 sume the continuance of the wronp. Hence a recovery is for damages accru- 
 ing before action brought, and successive actions may be brought for the 
 continuance of the wrong. Ballantine v. Public Service Corp., 86 N. J. L. 
 331, 9 Atl. 95 (1914) ; Staple v. Spring, 10 Mass. 72 (1813) ; Chattanooga 
 V. Bowling, loi Tenn. 342, 47 S. W. 700 (1898) ; Sanitary District v. Ray, 
 199 111. 63, 64 N. E. 1048, 93 Am. St. 102 (1902) ; Ganstcr V. Metro t>olitan 
 E. Cn.. 2 T4 Pa. 628, 64 Atl. 91 (1906) ; Knhn v. ///. C. R. Co., in Til. App. 
 323 (1903). Otherwise where the injury is permanent, Mansfield v. Tcnny, 
 202 Mass. 312, 88 N. E. 892 (1909) ; Risher v. Ackcn C. Co., 147 Iowa 459, 124 
 N. W. 764 C1910) ; Vandcrslice v. Irondale E. Co., 232 Pa. 435^ 81 Atl. 445 
 (1911) ; Phila. B. & W. R. Co. v. Karr, 3» App. L). C. (1912) ; Chesapeake 
 & O. R. Co. V. Blankenship, 158 Ky. 270, 164 S. W. 943 (1914). 
 
 ''Part of the opinion is omitted. 
 
 **Lord Coleridge, C. J., dissenting: "It seems to me a subtlety not war- 
 ranted by law to hold that a man can not bring two actions, if he is injured
 
 REILLY V. SICILIAN ASPHALT PAV. CO. 583 
 
 damages to the person and to property though occasioned by the 
 same wrongful act give rise to different causes of action, Brunsden 
 V. Humphrey, L. R. 14 Q, B. Div. 141 ; while in Massachusetts, 
 Minnesota and Missouri the contrary doctrine has been declared. 
 Doran v. Cohen, 147 Mass. 342 ; King v. Chicago, M. & St. P. Ry. 
 Co., 82 N. W. Rep. 1113; Von Fragstein v. Windier, 2 Mo. App. 
 598. The argument of those courts which maintain that an injury 
 to person and property creates but a single cause of action is that, as 
 the defendant's wrongful act was single, the cause of action must be 
 single and that the different injuries occasioned by it are merely 
 items of damage proceeding from the same wrong, while that of the 
 English court is that the negligent act of the defendant in itself 
 constitutes no cause of action and becomes an actionable wrong 
 only out of the damage which it causes. "One wrong was done 
 as soon as the plaintiff's enjoyment of his property was substantially 
 interfered with. A further wrong arose as soon as the driving also 
 caused injury to the plaintiff's person." Brunsden v. Humphrey, 
 supra. I doubt whether either argument is conclusive. If, where 
 one person was driving the vehicle of another, both the driver and 
 the vehicle were injured, there can be no doubt tliat two causes of 
 action would arise, one in favor of the person injured and the 
 other in favor of the owner of the injured property. On the other 
 hand, if both the horse and the vehicle, being the property of the 
 same person, were injured, there would be but a single cause of 
 action for the damage to both. If, while injury to the horse and 
 vehicle of a person gives rise to but a single cause of action, injury 
 to the vehicle and its owner gives rise to two causes of action, it 
 must be because there is an essential difference between an injury 
 to the person and an injury to property that makes it impracticable, 
 or, at least, very inconvenient in the administration of justice to 
 blend the two. We think there is such a distinction. Different 
 periods of limitation apply. The plaintiff's action for personal in- 
 juries is barred by the lapse of three years; that for injury to the 
 property not till the lapse of six years. The plaintiff can not assign 
 his right of action for the injury to his person, and it would abate 
 and be lost by his death before a recovery of a verdict, and if the 
 defendant were a natural person, also by his death before that time. 
 On the other hand, the right of action for injury to property is 
 assignable and would survive the death of either party. * * * 
 
 While some of the difficulties in the joinder of a claim for 
 injury to the person and one for injury to the property in one cause 
 of action are created by our statutory enactments, the history of 
 the common law shows that the distinction between torts to the 
 person and torts to property has always obtained. Lord Justice 
 Bowen in the Brunsden case has pointed out that there is no author- 
 ity in the books for the proposition that a recovery for trespass 
 to the person is a bar to an action for trespass to goods or vice versa. 
 
 in his arm and in his leg, but can bring two, if besides his arm and leg 
 being injured his trousers which contain his leg, and his coat-sleeve which 
 contains his arm, have been torn." See further, MacDoiigall v. Knight, L. R. 
 25 Q. B. Div. I (1890), at p. 8.
 
 5S.| JUDGMENT 
 
 It is true that at ccmitiion law the necessity of bringing two suits 
 could at the election of the plaintiff be obviated in some cases, 
 as. for instance, by declaring for trespass on the plaintiff's close 
 and alleging in aggravation thereof an assault upon his person.'*" 
 (See Waterman on Trespass, 205, 406.) Still, in such a case there 
 would be but a single cause of action, to wit, the trespass upon 
 the close, and if the defendant justified this trespass it would be 
 a complete defense to the action, the personal assault being merely 
 a matter of aggravation. Carpenter v. Barber, 44 Vt. 441. 
 
 Therefore, for reason of the great difference between the rules 
 of law applicable to injuries of the person and those relating to in- 
 juries to property we conclude that an injury to person and one to 
 property, though resulting from the same tortious act, constitute 
 different causes of action.^^ 
 
 Judgment reversed and new trial granted. 
 
 BROWN V. FIRST NATIONAL BANK OF NEWTON, KANS. 
 
 United States Circuit Court of Appeals, Eighth Circuit, 1904 
 
 132 Fed. 450.'=' 
 
 Saneorn, J. : This is an action brought by William E. Brown, 
 the plaintiff in error, against the First National Bank of Newton, 
 Kans., to recover $7,500 alleged damages for the wrongful 
 release of a judgment which Brown had pledged to the bank 
 as collateral security for the payment to it of a note for $3,366.75, 
 
 *''Doyle V. American W. Co., 60 App. Div. (N. Y.) 525, 69 N. Y. S. 952 
 (1901) ; Vock V. Antcrbourn, 67 N. Y. Misc. 168, 122 N. Y. S. 233 (1910). 
 
 "A cause of action may be regarded as resulting from the injury inflicted 
 rather than the act causing the injury. Brnnsdcn v. Humphrey, L. R. 14 Q. B. 
 Div. 141 (1884) (rev. 11 Q. B. Div. 7'^^, 51 L. T. (N. S.) 529, Z3 Am. 
 L. Reg. 369 and note) ; Boerxnn v. Taylor, 19 Conn. 122 (1848) ; Peake v. 
 B. & O. R. Co., 26 Fed. 495 ( 1886) ; Watson v. Texas & P. R. Co., 8 Tex. 
 Civ. App. 144, 27 S. W. 924 (1894) ; Lamb v. Harhaugh, 105 Cal. 680, 39 Pac. 
 56 (1895) ; Ochs V. Public Service R. Co., 81 N. J. L. 661, 80 Atl. 495 (1911) 
 (rev. 80 N. J. L. 148). On tlie other hand the majority of American decisions 
 regard a single act causing injury as giving rise to a single cause of action, 
 although the result is injury to the person and to property. Hoive v. Peckham, 
 10 Barb. (N. Y.) 656 (1851); Seger v. Barkhamstad, 22 Conn. 290 (1853); 
 Baltimore & O. R. Co. v. Ritchie, 31 Md. 191 (1869) ; Hodge v. Bennington, 
 43 Vt. 450 (1871); Lamb v. St. Louis, C. & IV. R. Co., 33 Mo. App. 489 
 C1888) ; Doran v. Cohen, 147 Mass. 342, 17 N. E. 647 (1888) ; Bliss v. New 
 York C & H. R. Co., 160 Mass. 447, 36 N. E. 65, 39 Am. St. 504 (1894) ; 
 Braithwaite v. Hall, 168 Mass. 38, 46 N. E, 398 (1897) ; Oivensborough & 
 H. G. Co. V. Coons, 20 Ky. L. Rep. 1678, 49 S. W. 966 (1899); King v. 
 Chicago, M. & S. R. Co., 80 Minn. 83, 82 N. W. 1113, 81 Am. St. 238, 
 50 L. R. A. 161 and note (1900) ; Birmingham S. R. Co. v. Lintner, 141 Ala. 
 420. 38 So. 363, 109 Am. St. 40 C1904); Kimball v. Louisville & N. R. Co., 
 94 Miss. 396, 48 So. 230 (1908) ; Howell v. Fuller, 151 N. Car. 315, 66 S. E. 131 
 (1909). Compare Underwriter's A. L. /. Co. V. Vicksburg T. Co., 63 So. 453, 
 106 Miss. 244 (1913). See also Henry v. Lilley, 42 Pa. Sup er. Ct. 565 (1909)- 
 
 '"Part of the opinion is omitted.
 
 BROWN V. FIRST NAT. BANK OF NEWTON 585 
 
 made by Brown as principal and Cora E, Brown and T. J. Norton as 
 sureties. The court below instructed the jury to return a verdict for 
 the defendant because in an action, on the note, which had been 
 brought by the bank, Brown had recouped or set off so much of the 
 damages which were caused by the release as were necessary to pay 
 and defeat the claim upon the note. The writ of error challenges 
 the judgment upon the verdict rendered pursuant to this instruction. 
 
 In the action upon the note for $3,366.75, Brown and his sure- 
 ties pleaded, and introduced evidence in support of, other defenses 
 besides that based upon the release of the pledged judgment, so, 
 that, although the record in the case before us establishes the fact 
 that there was evidence that the jury applied a portion of Brown's 
 claim for damages on account of that release in payment of the note, 
 it fails to disclose what portion of that claim was thus applied. In 
 this state of the record the charge of the court below was based upon 
 the rule of law that one may not split his cause of action ; that if, 
 by an action or defense he avails himself of a part of a single claim 
 or obligation, he thereby estops himself from enforcing the re- 
 mainder of it ; and that, as Chief Justice Shaw felicitously expresses 
 it, "he can not use the same defense first as a shield and then as a 
 sword." O'Connor v. Varney, 10 Gray 231 ; Britton v. Turner, 
 6 N. H. 481, 495, 26 Am. Dec. 713 ; Batterman v. Pierce, 3 Hill 171 ; 
 Machine Co. v. Farmer, 27 Minn. 428, 430, 8 N. W. 141 ; Bolen 
 Coal Co. V. Brick Co., 52 Kans. 747, 749, 35 Pac. 810; Lucas v. Le 
 Compte, 42 111. 303, 305 ; Sutherland on Damages, sections 186, 187, 
 189; Freeman on Judgments, sections 2^/, 224; 2 Van Fleet's 
 Former Adjudication, p. 867; Desha's Exrs. v. Robinson, 17 Ark. 
 245.^3 
 
 The plaintiflf does not dispute this general rule of practice, but 
 he insists that his case is not governed by it, because the release of 
 the judgment constitutes a payment of the note, and he v/as com- 
 pelled to present that release as a defense to the action upon the note, 
 or to entirely lose all benefit of it. But was the plaintiff required 
 to set up his claim for damages from the release of the judgment 
 as a defense to the action upon the note and under penalty of a loss 
 of all remedy upon it ? The contract of the bank, the pledgee, was to 
 exercise reasonable diligence to collect the judgment and to apply the 
 proceeds of it to the payment of the note for $3,366.75. The claim 
 of Brown was that, without his consent, and in violation of this 
 agreement, the bank released the judgment which was collectible, 
 without collecting it, to his damage in the sum of $7,500. These 
 facts appear to present an affirmative cause of action for breach of 
 the contract of pledge, which was perfectly available to the plaintiff 
 in an independent action, regardless of the proceedings of the bank 
 upon the note. They undoubtedly constituted a tort and a cause of ac- 
 tion for conversion (Colebrook on Collateral Securities, section 131.) 
 But the pledger had the option to waive the tort, and to sue for breach 
 of the contract. The plaintiff held this cause of action against the 
 
 "Compare Davis v. Hedges, L. R. (1871) 6 Q. B. 687, and see also 2 
 Black. Judgments (2d ed.) § 768.
 
 (^85 JUDGMENT 
 
 bank when the latter l)rou.c:ht its action against him and his sureties 
 upon his note. His cause of action for breach of the contract of the 
 plcdj^e exceeded in amount the sum due u])on iiis note. His claim 
 for damages was not only an affirmative cause of action against tlie 
 bank, but it also constituted, at his option, a good reason why the 
 bank' was not entitled to recover upon the note, a good defense of 
 payment of the note to the action upon it. Brozvn v. First National 
 Bank, 112 Fed. 901, 904, 50 C. C. A. 602, 605, 56 L. R. A. 876; 
 Colebrook on Collateral Securities (2d ed.), section 114. If the 
 facts which condition this claim of Brown had constituted a de- 
 fense to the action upon the note, and nothing more, he would have 
 been required to present them in that action at his peril, and, if he 
 failed to do so, a judgment on the note would have rendered his 
 claim upon them res adjudicata. Inasmuch, however, as they pre- 
 sented an affirmative cause of action against the plaintiff as well as a 
 good defense of payment to the action of the bank upon the note, the 
 choice was his to interpose them as a defense or to reserve tliem and 
 maintain an independent action upon them for all the damages which 
 he had sustained. A failure of a defendant in an action to plead or 
 prove facts purely defensive renders such matters res adjudicata 
 after iudgment and conclusively estops him from again presenting 
 them.^* 'i Van Fleet on Former Adjudication, section 198. But 
 where the facts which establish his defense also constitute an affirm- 
 ative cause of action against the plaintiff, he has the option to inter- 
 pose them as a defense, or to reserve them for an independent or 
 cross action. If he refrains from presenting tliem as a defense, the 
 judgment in the action against him does not bar or adjudicate his 
 affirmative cause of action upon them, and he is free to subse- 
 quently maintain it. i Freeman on Judgments, sections 277, 224; 
 2 YanFleet on Former Adjudication, section 436; Cook v. Moseley, 
 13 Wend. 2yy; i Sutherland on Damages, section 187; Batterman 
 V. Pierce, 3 Hill 171, 174; Britton v. Turner, 6 N. H. 481, 495, 26 
 Am. Dec. 713; Bartli v. Burt, 43 Barb. 628; Mimnaugh v. Partlin, 
 67 Mich. 391, 34 N. W. 717. The reason for this rule is that the 
 damages resulting from the plainintiff's wrongful act may be indeter- 
 minate, or may not have entirely accrued, when he brings his action, 
 and it might be unjust or inequitable to permit him to determine the 
 time when the defendant must present and prove his claim for the 
 damages w^hich he has suffered from the breach of the plaintiff's 
 contract. 
 
 The application of this rule of law to the facts of the case in 
 hand seems to strongly indicate that the plaintiff had an indivisible 
 affirmative cause of action against the bank for the wrongful sur- 
 render of the judgment, that he elected to use a portion of it in 
 defense to the bank's action upon his note, and that he thereby con- 
 
 "Loring v. Mansfield, 17 Mass. 394 (1821) ; Broughton v. Mcintosh, i 
 Ala. 103 (1840); Binck v. IVood, 43 Barb. (N. Y.) 315 (1864); Gilson v. 
 Bingham, 43 Vt. 410, 5 Am. Rep. 289 (1871) ; j^lhT'^ /j;;s{pnrd Estate. 169 
 Paj6og^2 Atl. 621 (1895) ; Weiser v. Kling, 38'7^ Div. 266, 57 ^- ^- S. 
 ^nt^oo) ; Wcinvwn v. Salit, 85 Misc. 456, 147 N. Y. S. 758 (1914)-
 
 TAYLOR V. CLAYPOOL 587 
 
 clusively estopped himself from maintaining an action for any 
 part of it.^^ 
 
 Judgment affirmed. 
 
 TAYLOR V. CLAYPOOL 
 
 Supreme Court of Indiana, 1841 
 
 5 Black f. (Ind.) 557 
 
 Error to the FrankHn Circuit Court. 
 
 Blackford, J. : Taylor brought an action of assumpsit against 
 William H. Aloseley and William W. Claypool, on a joint promis- 
 sory note. The writ was returned noti est inventus as to Mose- 
 ley. Claypool appeared and pleaded as follows: That the plaintiff 
 heretofore, etc., impleaded the defendant and Moseley, etc., for not 
 performing the same promises, etc. ; and that the plaintiff in that 
 suit (it being suggested that the writ had been served on Moseley 
 and not on Claypool) obtained a judgment against Moseley for the 
 amount due, etc. General demurrer to the plea, and judgment for 
 the defendant. 
 
 This is a joint action against Moseley and Gaypool; and, to 
 support it, the plaintiff must have joint cause of action against the 
 
 ''Accord: Eastmure v. Laws, 5 Bing. (N. Car.) 444 (1839); Good % 
 Good,Q Watts ( Pa.) 567 (1840) ; Sargent v. Fitspatrick, 70 Mass. SnTiSSS) ; 
 Eaker v. Stinch field, 57 Maine 363 (1869); Inslee v. Hmipton, 11 Hun (N. 
 Y.) 156 (1877) ; Jenninffs v. Hare. 104. Pa. St. a8q ( ,188-^ ) ; Wright v. Ander- 
 son, 117 Ind. 349, 20h.il.. 247 (1888) ; Clement v. Field, 147 U. S. 467, 13 Sup. 
 Ct. 358, 37 L. ed. 244 (1893) ; Greenwood Drug Co. v. Bromonia Co., 81 S. 
 Car. 516, 62 S. E. 840, 128 Am. St. 929 (1908) ; Jones v. Charles Warner Co., 
 25 Del. 566, 83 Atl. 131 (1912) ; Nernst Lamb Co. v. Hill 24^ Pa. ^/[S, 90 Atl. 
 137.(1914)- So, where a judgment is recovered on a claim, it is no longer 
 available as a counterclaim in a pending action. Rosenfeld v. Solomon, 61 
 Misc., 238, 113 N. Y. S. 72;^ (1908) ; Townsend v. Niles, 210 Mass. 524, 96 
 N. E. 1035 (1912). Generally, where a defendant has a set-ofif or counterclaim 
 he may use it or not at his option, and if he does not use it he is not pre- 
 cluded from maintaining a separate action. Morton v. Bailey, 2 111. 213, 27 
 Am. Dec. 767 (1S35) ; Judah v. Brandon, 5 Blackf. (Ind.) 506 (1841); 
 Gilmore v. Reed, j6 Pa. St. 462 (187 4) ; Tomlinson v. Onigley, 5 Houst. 
 (Del.) 168 (iS76);'Longstreet v. I^hile, 39 N. J. L. 63 (1876) ; 'Dewsnap v. 
 Davidson, 18 R. I. 98, 26 Atl. 902 (1892) ; New England Mortgage Security 
 Co. V. Fry, 143 Ala. 637, 42 So. 57, in Am. St. 62 (1904) ; Virginia-Carolina 
 Chemical Co. v. Kirven, 215 U. S. 252, 54 L. ed. 179 (1909), affirming Kirven 
 V. Virginia-Carolina Chemical Co., 77 S. Car. 493, 58 S. E. 424; Kaufman v. 
 Cooper, 39 Mont. 146, loi Pac. 969 (1909) ; Steel v. Holtzer, 144 N. Y. S. 643 
 (1913); Secor V. Siver, 165 Iowa 673, 146 N. W. 845 (1914). A fortiori 
 where the claim was unavailable as a defense in the former action. De Graef 
 V. Wyckoff, 118 N. Y. I, 22 N. E. 11 18 (1889) ; Thro M. V- Susquehanna Mu t. 
 Fire {ns Cn . t^i^ Pa St. 427. 17 Atl. 47 3. II Am. 'Rep. 909 (1889). 
 
 _ By statute, a counterclaini is sometimes barred unless set up in the 
 action brought against the party in whose favor it exists. Brosnan v. Kramer, 
 13s Cal. 36, 66 Pac. 979 (1901) ; Douglas v. First Nat. Bank of Hastings, 
 17 Minn. 35 (1871). So, in actions before justices of the peace. Henry v. 
 Mil ham, 13 N. J. L. 266 (1832) ; Herring v Adams. K Watts & S. ( Pa) 459 
 (1843) ; Lathrop V. Hayes, 57 111. 279 (1870). ^~^
 
 5SS JUDGMENT 
 
 defendants. The pica sliows that the plaintiff has no such cause of 
 action; because it shows tliat he had previously obtained judgment 
 against Moseley on the note now sued on. The note, at least so 
 far as Moseley is concerned, was merged in the judgment; and any 
 suit in which he is defendant, founded on the note, must be barred 
 by tliat judgment. It is true that, by our statute, if a suit on a joint 
 contract be brought against two, and one only can be found, judg- 
 ment can be taken against him alone on whom process has been 
 served. R. S. 1838, p. 446. But still as the action is against both, 
 a judgment against the one served with process can not be obtained, 
 unless the plaintiff can show that he has then subsisting a good cause 
 of action against both. The case of Sheehy v. Mandevill et al, 6 
 Cranch 253, seems to be opposed to the plea, before us ; but that case, 
 as shown'in Robertson v. Smith, 18 Johns. 459, can not be supported. 
 Judgment affirmed."'^ 
 
 SESSIONS V. JOHNSON 
 
 Supreme Court of the United States, 1877 
 
 95 U. S. 347 
 
 Error to the Circuit Court of the United States for the District 
 of ^Massachusetts. 
 
 Kane, Sprague & Co., on April 5, 1870, mortgaged their stock, 
 tools and fixtures to W. W. Sprague, to secure him as their in- 
 dorser, and he assigned the mortgage to the defendant below as 
 security for a debt. On October 12th, the same mortgagors gave 
 a second mortgage on the same and other property to E. A. Good- 
 now for $4,000, which sum he paid to W. W. Sprague, who used it 
 
 "Accord: Phxlson v. Bamp field, I Brev. (S. Car.) 202 (1S03) -JVard v. 
 Johnson, 13 Mass. 148 (1816) ; Williams y. Mc Fall, 2 Serg & R. (P a.) 280 
 (1816) ; Robertson v. Smith, 18 Johns. (i\. Y.) 459, 9 Am. Dec. 227 (1821) ; 
 Smith V. Black. 9 Serg. & R (Pa.) 142, 11 Am. Dec. 686 (1822) ; Wann v. 
 McMiilty, 7 111. 355, 43 Am. Dec. 58 (1845) ; Henderson v. Reeves, 6 Blackf. 
 (Ind.) loi (184O; Moale v. Hollins, 11 Md. 11, 33 Am. Dec. 684 (1839); 
 Peters v. San ford, i Den. (N. Y.) 224 (1845) ; King v. Hoare, 13 M. & W. 
 494 (1844) ; Fcrrall v. Bradford, 2 Fla. 508, 50 Am. Dec. 293 (1849) ; Sloo 
 V. Lea, 18 Ohio, 279 (1849) ; Candee v. Clark, 2 Mich. 255 (1851) ; Thompson 
 v. Emmert, 15 111. 415 (1854) ; Siiydam v. Barber, 18 N. Y. 468, 75 Am. Dec. 254 
 (1858); Brady v. Reynolds, 13 Cal. 31 (1859); Mason v. Eldred, 6 Wall. 
 (U. S.) 231, 18 L. ed. 783 (1867), overruling Sheehy v. Mandeville, 6 Cranch 
 (\J. S.) 254 (1810); Kingslev v. Daz'is, 104 Mass. 178 (1870); Reynolds v. 
 Pittsburgh 6-c. R. Co., 29 Ohio St. 602 (1876) ; Kendall v. Hamilton, L. R. 4 
 App. Cas. 504 (1879) ; Latter v. BandoiiJ, 48 Wis. 638, 4 N. W. 774 (1879) ; 
 Robinson v. Snyder, 74 Ind. no (1881) ; Janscn v. Grimshaw, 125 III. 468, 
 17 N. E. 850 (1888) ; Wilson v. Bncll, 117 Ind. 315, 20 N. E. 231 (1888) ; 
 Hammond v. Scho field, L. R. (1891), i Q. B. 453; Heckmann v. Young, 134 
 N. Y. 170, 31 N. E. 513, 30 Am. St. 655 (1892) ; O'H anion v. Scott, 89 Hun 44, 
 35 N. Y. S. 31 (1895); Davison v. Harmon, 65 Minn. 402, 67 N. W. 1015 
 (1896) ; Beshears v. Vandalia Banking Assn., 73 Mo. App. 293 (1897) Capital 
 City Dairy Co. V. Plummer, 20 Ind. App. 408, 49 N. E. 963 (1898) ; Coles v. 
 McKenna, 80 N. J. L. 48, 76 Atl. 344 (1910) ; Almand v. Hatticock, 140 Ga.
 
 SESSIONS V. JOHNSON 589 
 
 in part to pay notes given by the mortgagors upon which both mort- 
 gagees were Hable. On October 12th, the whole property covered 
 by the mortgages was sold, the purchaser giving $6,000 in notes, of 
 which $3,555.60 were delivered to Goodnow and $2,444.40 to the 
 defendant, and both mortgages were released. Bankruptcy proceed- 
 ings were commenced against Kane, Sprague & Co. on November 
 2d in the same year, and the plaintiffs below were appointed as- 
 signees of the bankrupt estate. The assignees sued Goodnow to 
 recover the value of the property covered by his mortgage and ob- 
 tained judgment, by agreement, for $4,000. They also brought 
 another suit against Goodnow to recover the preference he ob- 
 tained through the payment of the notes upon which he was an 
 indorser. This suit was settled for $2,000 and a release given him 
 of all claims against him. The assignees then brought suit against 
 the defendant to recover back the proceeds of the $2,444.40 in notes, 
 given to the defendant on the release of the first mortgage, on the 
 ground that they had been obtained in fraud of the bankruptcy act. 
 
 On the trial in the district court a verdict was rendered for the 
 plaintiff for $2,786.56 and judgment thereon affirmed by the circuit 
 court. On error the defendant contended that the plaintiffs were 
 estopped by their previous suit.^'' 
 
 Clifford, J. : Even without satisfaction, a judgment against one 
 of two joint contractors is a bar to an action against the other, 
 within the maxim transit in rem judicatum; the cause of action 
 being changed into matter of record, which has the effect to merge 
 the inferior remedy in the higher. King v. Hoare, i^ Mees. & W. 
 504.^* 
 
 26, 78 S. E. 345 (1913) ; Rycman v. Manerud, 68 Ore. 350, 136 Pac. 826 (1913) ; 
 Otherwise where the defendant in the second suit was beyond the jurisdiction 
 of the court at the time of the first suit. Olcott v. Little, 9 N. H. 259, 32 Am. 
 Dec. 357 (1838) ;Yolio v. McGovern, 42 Ohio St. 11 (1884) ; Cox v. Maddux, 
 72 Ind. 206 (1880); Finch v. Galigher, 181 111. 625, 54 N. E. 611 (1899); 
 Bradley Engineering &c. Co. v. Heyburn, 56 Wash. 628, 106 Pac. 170 (1910), 
 but as to partnerships in Illinois see Fleming v. Ross, 225 111. 149, 80 N. E. 92 
 (1907), and see Blessing v. Mc Linden, 81 N. J. L. 379, 79 Atl. 347 (1911). 
 
 In a number of states the common-law rule is no longer in full force, 
 statutes having either declared joint contracts to be joint and several, or 
 provided for further proceedings against co-obligors joined but not served 
 in the first action. See N. Y. Code Civ. Proc, §§ 1278, 19^2, 1937; Hoffer- 
 herth v. Nash, 191 N. Y. 446, 84 N. E. 400 (1908) ; Mass. Rev. L. (1902), ch. 170, 
 § 14; Odom v. Denny, 82 Mass. 114 (18&0) ; Penna . Act April 6, 18 30^ P. L. 
 277, ^i\ Lczvis V. Williams. 6 Whart. (Pa.) 2 64. (1840); ct. CouMfenorjf. 
 Siihre, 71 Pa. St. 46 2 (1872) : N. T. "Prac. Act of 1912, March 28, P. L. 377, 
 § 20 ; Bonesteel v. Todd, 9 Mich. 371, 80 Am. Dec. 90 (1861) ; Dill v. White, 
 52 Wis. 456, 9 N. W. 404 (1881) ; Westheimer v. Craig, 76 Md. 399, 25 Atl. 
 419 (1892); Cahoon v. McCidlock, 92 Va. 177, 23 S. E. 225 (1895) ; Bute v. 
 Brainerd, 93 Tex. 137, 53 S. W. 1017 (1899) ; Sherburne v. Hyde, 185 111. 580, 
 57 N. E. 776 (1900) ; Ingwaldson v. Olson, 79 Minn. 252, 82 N. W. 579 (1900) ; 
 Middleton v. Nibling (Tex.), 142 S. W. 968 (1912). 
 
 'The facts are summarized from the opinion of the court, part of which 
 is omitted. 
 
 ''Todd V. Stewart, 9 Ad. & El. (N. S.) 759 (1846) ; Stewart v. Todd, 9 
 Ad. & EL (N. S.) 767 (1846) ; Ex parte Fewings, L. R. 25 Ch. Div. 338 (1883). 
 But the judgment does not extinguish any remedy except the particular cause 
 of action in respect of which it was recovered, and the creditor is not pre- 
 cluded from enforcing any collateral security he may have taken. Drake v.
 
 590 JUDGMENT 
 
 Judcnnont in such case is a bar to a subsequent action against 
 the "other contractor, because, the contract being merely joint, there 
 can be but one recovery; and consctiucntly the plaintiff, if he pro- 
 ceeds ag^ainst one only of two joint promisors, loses his security 
 against the other, the rule being that by the recovery of the judg- 
 ment the contract is merged and higher security substituted for the 
 debt. Robertson v. Smith, i8 Johns. (N. Y.) 477; Ward v. Johnson, 
 13 INIass. 149; Cozvlcy v. Patch, 120 Mass. 138; Mason v. Eldred, 
 6 Wall. (U. S.) 231. 
 
 But the rule is otherwise where the contract or obligation is 
 joint and several, to the extent that the promisee or obligee may 
 elect to sue the promisors or obligorf> jointly or severally ;^° but even 
 in that case the rule is subject to the limitation, that, if the plaintiff 
 obtains a joint judgrnent, he can not afterward sue them separately, 
 for tlie reason that the contract or bond is merged in the judgment; 
 nor can he maintain a joint action after he has recovered judgment 
 against one of the parties in a separate action, as the prior judgment 
 is a waiver of his right to pursue r. joint remedy.^" 
 
 Different modifications of the rule also arise where the contro- 
 versy grows out of the tortious acts of the defendants. Where a 
 trespass is committed by several persons, the party injured may sue 
 any or all of the wrongdoers, but he can have but one satisfaction 
 for the same iniury, any more tlian in an action of assumpsit for a 
 breach of contract. 
 
 Courts everywhere in this country agree that the injured party 
 in such a case may proceed against all the w-rongdoers jointly, or 
 he may sue them all or any of them separately ; but if he sues them 
 all jointly, and has judgment, he can not afterward sue any one of 
 them separately; or, if he sues any one of them separately, and has 
 judgment, he can not afterward seek his remedy in a joint action, 
 because tlie prior judgment against one is, in contemplation of law, 
 an election on his part to pursue his several remedy.*^ 
 
 Mitchell, 3 East 251 (1803) ; Wcgg Prosser v. Evans, L. R. (1895), i Q. B. 
 108; Economic Life Assur. Soc. v. Usborne, L. R. (1902), A. C. 147; IVJiitev. 
 j'mt//; 3^ Pa. St. 186, 7=; A m. Dec. 589 (1859) I Steele v. Lord, 28 Hun (N. YT) 
 27(1882). So also, a judgment on the collateral does not merge the principal 
 debt. Ackley v. Westervelt, 86 N. Y. 448 (1881) ; Vannxcm v. Burr, 151 Mass. 
 386, 24 N. E. 773, 21 Am. St. 458 (1890). See also, note to preceding case as 
 to statutor>' modifications of common-law rule. 
 
 ^"Simonds v. Center, 6 Mass. 18 (1809) ; Townsend v. Riddle, 2 N. H. 448 
 C1822) ; Clinton Bank v. Hart, 5 Ohio St. 34 (1855) ; People v. Harrison, 82 
 111. 84 (1876) ; Davis v. Schmidt, 126 Wis. 461, 106 N. W. 119, no Am. St. 
 938 (1906) ; Taylor v. Sartorious, 130 Mo. App. 23, 108 S. W. 1089 (1907)- 
 
 *''Ex parte Rowlandson, 3 P. Wms. 405 (i735) ; Bangor Bank v. Treat, 
 6 Greenl. (Maine) 207, 19 Am. Dec. 210 (1829) ; McDi l'itt v. McDivitt. 4 Wat ts. 
 (Pa.) 384 (1835) ; United States v. Price, 50 U. S. 83, 13 L. ed. 56 (1850) ; Fay 
 V. Jenks, 78 Mich. 312, 44 N. W. 380 (1889) ; Scanlon v. People, 95 111. App. 348 
 (1900). Contra: Kirkpatrick v. Stinglcy, 2 Ind. 269 (1850); but compare 
 United Oil &c. Co. v. Alberson, 43 Ind. App. 626, 88 N. E. 359 (1908). 
 
 ^^Livingston v. Bishop, l Johns. (N. Y.) 290, 3 Am. Dec. 330 (1806) ; 
 Ammonett v. Harris, I H. Sc Vi. (Yn.) 488 (1807) ; SwitJi v, Rines, Fed. Cas. 
 No. 13100, 2 S>imn. 338 (1836) ; Cameron v. Kanrich, 201 Mass. 451, 87 N. E. 
 60s (1909). Compare Davis v. Caswell, 50 Maine 294 (1862); Gilbreath v.
 
 SESSIONS V. JOHNSON 59I 
 
 Where the injury is tortious, the remedy may be joint or sev- 
 eral ; but the rule in this country is that a judgment against one with- 
 out satisfaction is no bar to an action against any one of the other 
 wrongdoers. Lovejoy v. Murray, 3 Wall. (U. S.) i, 2 Cliff. (U. S.) 
 196; Livingston v. Bishop, i Johns. (N. Y.) 290; Drake v. Mitchell, 
 3 East. 258.^2 
 
 Separate mortgages were held by the defendant and the other 
 mortgagee, of different dates, and it appears that they were given 
 for entirely different considerations. Of course, the respective mort- 
 gagees held the property subject to an equity of redemption in the 
 mortgagors; and the case shows that the mortgagors sold the re- 
 spective equities of redemption, and distributed the proceeds of the 
 sale between the respective mortgagees. Throughout, the relations 
 of the mortgagees to the insolvent debtors were entirely separate. 
 They never held any joint claim against the insolvent mortgagors, 
 nor did the mortgagees ever receive any joint security from the 
 insolvent debtors for their respective claims. Instead of that, the 
 respective equities of redemption remained in the mortgagors, and 
 the conceded facts show that they sold the equities and distributed 
 the proceeds between the respective mortgagees, showing to a dem- 
 onstration that there never was any joint contract relation between 
 the mortgagees and the insolvent debtors. 
 
 Even the proceeds of the sale of the equities of redemption, as 
 distributed between the respective mortgagees, were entirely sepa- 
 
 Jones, 66 Ala. 129 (1880) ; Moore v. Chattanooga Electric R. Co., 119 Tenn 
 710, 109 S. W. 497, 16 L. R. A. (N. S.) 978 (1907). In Allen v. L iggett. 81 
 Pa. St. 486 ( 1876 )^^ the summons was in trespass q. c. f. against two, onT~of 
 whom was not served. A judgment against the one served remaining unsatis- 
 fied, it was held a second action could be maintained against the tort feasor 
 not served. 
 
 *^Accord: Wright v. Lathrop, 2 Ohio 33, 15 Am. Dec. 529 (1825) ; Sprague 
 V. Waite, 36 Mass. 455 (1837) : Fox v. Northern Lihrrtir.^. % Watts & S. (Pa.) 
 103 (1841) ; Kennedj^jf^Mlijiy,_l2jPa ^St. 408 (18 50) ; Brooks v. Ashhurn, 9 
 Ga. 297 (i85iy7~^/c«M v. Crocheron, 19 Ala. 647, 54 Am. Dec. 203 (1851) ; 
 Savage v. Stevens, 128 Mass. 254 (1880) ; Albright v. McTighe, 49 Fed. 817 
 (1892) ; Russell v. McCall, 141 N. Y. 437, 36 N. E. 40S, 38 Am. St. 807 (1894) ; 
 Cleveland v. Bangor, 87 Maine 259, 32 Atl. 892, 47 Am. St. 326 (1895); 
 Roodhouse v. Christian, 158 111. 137, 41 N. E. 748 (1895); Vincent v. Mc- 
 Namara, 70 Conn. 332, 39 Atl. 444 (1S9S); Cashing v. Hederman, 117 Iowa 
 637, 91 N. W. 940, 94 Am. St. 320 (1902) ; Johnston v. McKenna, 73 N. J Eq. 
 I, 67 Atl. 395 (1907) (and. 74 N. J. Eq. 448, 70 Atl. 312) ; Tandnip v. Samp- 
 sell, 234 111. 526, 8s N. E. 331, 17 L. R. A. (N. S.) 852 (1008) ; Sqnire v. 
 Ordemann, 194 N. Y. 394, 87 N. E. 435 (1909) ; Cole v. Roebling Const. Co., 
 156 Cal. 443, 105 Pac. 255 (1909) ; Nelson v. Illinois Cent. R. Co., 98 Miss. 
 295, 53 So. 619, 31 L. R. A. (N. S.) 689 (1910); Berg v. Bates, 153 
 App. Div. 12, 137 N. Y. S. 1032 (1912) ; Lovimis v. Loomis, 148 Wis. 
 C53, 135 N- W. 125 (1912); Charles E. Johnson Co. v Philnriplphln^ -y^f. 
 Pa. sio. 84 Atl. 1014 (1912); Renfrow v. Condor, isyi^TTOiTisasrw. 
 385 (1913)- In England a judgment without more against one torfeasor is a 
 bar to any further proceedings against his co-trespassers. Buckland V. John- 
 son, IS C. B. 145 (1854) ; Brown v. Wooiton, Cro. Jac. y^ (1605) ; Brinsmcad 
 \. Harrison, L. R. 6 C. P. 584 (1871) (affd. L. R. 7 C. P. 547) (1872^ and 
 this rule is followed in a few American decisions, Hunt v. Bates, 7 R I 217 
 82 Am. Dec. 592 (1862) ; Pctticolas v. Richmond, 95 Va. 456 (1897) ; Staunton 
 Tel. Co. V. Buchanan, 108 Va. 810, 62 S. E. 928 (1908) ; and in Canada Long- 
 more V. Mc Arthur, 43 Can. Sup. Ct. 640 (1910) (affg. 19 Manitoba 641).
 
 592 JUDGMENT 
 
 rate: nor would it make any dilTorcncc if the mortgagees, in re- 
 ceiving their respective jiortions of those j-iroceeds, had acted jointly, 
 as it is well-settled law that where the tort is joint the injured party 
 niav liave a joint or several remedy, the rule being that a judgment 
 against one wrongdoer without satisfaction is no bar to action 
 against any one of the other joint tort-feasors. Lovejoy v. Murray, 
 supra. 
 
 Joint wrongdoers may be sued separately ; and the plaintiff may 
 prosecute the same until the amount of the damages is ascertained 
 by verdict, but the injured party can have only one satisfaction, the 
 rule being that he may make his election de mclioribus damnis, 
 which, when made, is conclusive in all subsequent proceedings. 
 Heydon's Case, ii Colo. 50; White v. Philbrick, 5 Greenl. (Maine) 
 147; Knickerbocker v. Colver, 8 Cow. (N. Y.) in; O'Shea v. 
 Kirkcr, 4 Bosw. (N. Y.) 120." 
 
 Without more, these remarks are sufficient to show that tlie 
 theory of estoppel can not be maintained, and that the first two 
 errors assigned must be overruled, for two reasons: i. Because the 
 relation of joint contractors never subsisted between the insolvent 
 debtors and the mortgagees, to whom the proceeds of the equities 
 of redemption were distributed by the insolvent mortgagors. 2. Be- 
 cause the mortgagees acted separately in accepting certain portions 
 of the proceeds of that sale; nor would it have made any difference 
 if they had acted jointly, as it is settled by all the authorities that 
 when several persons have been jointly concerned in the commission 
 of a wrongful act they may all be charged jointly as principals, or 
 the plaintiff may sue any one of the parties separately, torts being 
 in their nature several, even v/hen the wrongful act was jointly com- 
 mitted. Ad. Torts (3d cd.), 939. 
 
 Suppose tliat is so, still it is insisted by the defendant tliat the 
 
 "Duane v. Mtercken, 4 Yeat es (PaJ 437 (1870) ; Thomas v. Runisey, 6 
 Tohnsr(NrY.r26 O810') ; Dexter v. Broat, 16 Barb. (N. Y.) 337 (1853); 
 Karr V. Barstozv, 24 111. 580 (1S60) ; Wright v. London General Omnibus Co., 
 L. R. 2 Q. B. Div. 271 (1877) ; Putney v. O'Brien, 53 Iowa 117, 4 N. W. 891 
 (1880) ; Luce v. Dexter, 135 Mass. 23 (1883) ; S cither v. P hilade hhia Tr. Q o.. 
 i^sPa/Stsg^, 17 Atl. 338, 4 L. R. A. 54, n Am. St. 905 (1889) ; Spurr v. 
 iXortTi Hudson &c. R. Co., 56 N. J. L. 346, 28 Atl. 582 (1894) ; Dicken^v. 
 Balbach, 9 Pa. Dist. 449 (1900) ; Fitzgerald v. Union Stock Yards Co., 89 
 IS,ebr. 393, 131 N. W. 6i2r3TX. R. A. (N. S.) 98311 (1911)- See also, Taylor 
 V. Hollard, L. R. (1902), i K. B. 676. A few American cases hold that the 
 mere issuing of an execution will be regarded as an election to consider the 
 execution defendant alone responsible. White v. Philbrick, 5 Greenl. 
 (Maine) 147, 17 Am. Dec. 214 (1827) ; Smith v. Singleton, 2 McMuU (S. Car.) 
 184, 39 Am. Dec. 122 (1842) ; Boardman v. Acer, 13 Mich, jj, 87 Am. Dec. 
 736 (1S65); Fleming v. McDonald, 50 Ind. 278, 19 Am. Rep. 711 (1875); 
 Kendall v. School Dist., 75 Maine 358 (1883). But the majority hold that 
 actual satisfaction is required to constitute a bar. Sheldon v. Kibbc, 3 Conn. 
 214, 8 Am. Dec. 176 (1819) ; Osterhout v. Roberts, 8 Cow. (N. Y.) 43 (1827) ; 
 Flo\d V. Bro'ii'ne. 1 Rawlc (Pa.) 1 21. 18 Am. Dec. 602 (1829); Blann v. 
 Crocheron, 20 Ala. 320 (1852) ; Page v. Freeman, 19 Mo. 421 (1854) ; Lovejoy 
 V. Murray, 3 Wall. (U. S.) I, 18 L. ed. 129 (1865) ; Griffie v. McClung, 5 W. 
 Va. 131 '(1S72); Gittleman v. Feltman, 122 App. Div. 385, 106 N. Y. S. 839 
 (1907) ; McVey v. Manatt, 80 Iowa 132, 45 N. W. 548 (1890) ; Norfolk Lum- 
 ber Co. V. Simmons, 2 Marv. (Del.) 317, 2 Hurl. & Colt. 717, 43 Atl. 163 
 (1897) ; Squire v. Ordemann, 194 N. Y. 394, 87 N. E. 435 (1900).
 
 SESSIONS V. JOHNSON 593 
 
 plaintiff can not, in any proper view of the facts, recover more than 
 the difference between the amount paid by the other mortgagee and 
 the value of the property distributed. What the plaintiffs claim is 
 the amount the defendant received from the insolvent debtors as 
 part of the proceeds of the sale of the equities of redemption. Abun- 
 dant proof is exliibited that he received $2,444.40, and it is conceded 
 that the whole of that amount remains in the hands of the defendant. 
 
 Two sums, amounting in the whole to $6,000, were received by 
 the plaintiffs of the second mortgagee before the present suit was 
 instituted. Four thousand dollars of the amount was recovered by 
 the judgment in favor of the plaintiffs. They also instituted a second 
 suit against the same party, to recover the amount received by him in 
 payment of the notes upon which he was liable as indorser, which 
 action was compromised by the payment to the assignees of $2,000, 
 as appears by the agreed statement of facts. Such payment being 
 made, the assignees executed a release to tlie defendant in that suit 
 of all claims and demands which they, as such assignees, has against 
 him on that account. 
 
 Judgments bind parties and privies, but they do not bind stran- 
 gers ; and it is clear that the present defendant was neither a party 
 nor a privy to the action in the first suit, nor had he anything to 
 do with the compromise of the second suit between those parties. 
 
 Enough appears in the evidence to establish that theory; but if 
 any possible doubt could otherwise arise in respect to the conclu- 
 sion, the matter is set entirely at rest by the verdict of the jury. 
 They were told by the court that if the plaintiffs had once received 
 full satisfaction for tlie proceeds of the sale from the other mort- 
 gagee, "then they can recover nothing from the defendant" ; and it 
 follows from the verdict that they did not recover in the suits against 
 the other mortgagee anything for the portion of notes taken for tlie 
 sale of the equities which was distributed to the defendant in the 
 present suit. All that he received remains in his hands; and in as 
 much as the assignees are not estopped by the proceedings against the 
 second mortgagee from prosecuting their claim against the defendant 
 for the portion of the proceeds of the equities of redemption which 
 was distributed to him by the insolvent debtors. It follows that the 
 assignee may recover the whole amount of that portion without 
 regard to the antecedent proceedings against the second mortgagee, 
 which is all that need be said in response to tlie third assignment of 
 error. 
 
 Judgment affirmed.^* 
 
 *^A_cause of action whether ex' contractu or ex delicto is not merged or 
 extinguished by the recovery and satisfaction of a judgment against a stranger 
 not in privity with or joined in liabiHty with the defendant. Mathews V. 
 Lawrence, 1 Dcnio (N. Y.) 212, 43 Am. Dec. 665 (1845) ; Ellis v. State, 2 
 Ind. 262 (1850); Atlantic Dock Co. v. Nczv York, 53 N. Y. 64 (1873); 
 Bennett V. Field, 13 R. I. 139, 43 Am. Rep. 17 (1880) ; Hawley v. Dawson, 16 
 Ore. 344, 18 Pac. 592 (1888). See also, Bertrand V. Bingham, 13 Tex. 266 
 (1855) ; Grafton v. Hinkley, ill Wis. 46, 86 N. W. 859 (1901). So also, where 
 the judgment is in favor of the stranger. Scott v. Hartog, 75 Misc. 126, 132 
 N. Y. S. 846 (1912) ; McGillvray v. Employers' Liability Assur. Corp., 214 
 Mass. 484, 102 N. E. 77 (1913). 
 38 — Civ. Proc.
 
 59-}. JUDGMENT 
 
 (b) Estoppel 
 
 PHILLIPS V. WARD 
 
 Court or Exciikquer, 1863 
 
 2 //. & C. 7^7 
 
 Declaration. — For money payal)lc by tlic defendants to the plain- 
 tiff, for work, etc., done by the iilainliff as attorney and solicitor of 
 and otherwise for the defendants, upon their retainer, and for fees 
 due in respect thereof, and for materials, etc., provided, and for 
 money lent, money paid, and on accounts stated. 
 
 Pica. — That the plaintiff ouj;:ht not to be admitted to say that 
 any money is payable by the defendants to the plaintiff for the 
 causes of action in the declaration mentioned ; because they say tliat 
 the said retainer was a joint retainer by the defendants in this ac- 
 tion and one John Bazali^ette; . . . and that before this suit 
 the plaintiff brought action against the said John Bazalgette in the 
 court of common pleas for the same causes of action as in the decla- 
 ration mentioned; and such proceedings were thereupon had in 
 an action that afterward and before this suit it was considered by 
 the judgment of the said court in the said action that the plaintiff 
 should take nothing by his writ for or in respect of the said causes 
 of action ; and the said judgment still remains in force; and this the 
 defendants are ready to verify. Wherefore they pray judgment if 
 the plaintiff ought to be admitted to say that any money is payable 
 by the defendants to tlie plaintiff for the causes in the action in the 
 declaration mentioned. 
 
 Demurrer, and joinder therein. 
 
 Hayes, Serjt., in support of the demurrer. A plaintiff who 
 has failed in an action against one of several joint contractors is 
 not thereby estopped from suing the others. An estoppel would 
 arise in another action between the same parties for the same cause, 
 but it is a novel plea that, because the plaintiff has sued the wrong 
 party, he is estopped from suing the right one. King v. Hoare, 13 
 Mees. & W. 494, is the converse of this case. There it was held that 
 a judgment (without satisfaction) recovered against one of two 
 joint debtors was a bar to an action against the other. But that 
 decision proceeded on the ground that a judgment changes the cause 
 of action into matter of record, and the inferior remedy is merged 
 in the higher. It is like the case of a judgment against one of sev- 
 eral joint tort-feasors, which, of itself, without execution, is a bar 
 to an action against the others for the same cause. In an action 
 of contract against A, he can not plead in abatement the pendency 
 of another action for the same cause against B, Henry v. Goldney, 
 15 Mees. & W. 494; but the proper course is to plead the non-joinder 
 of the contractor in abatement. This plea merely says that the 
 judgment in the former action was that the plaintiff should take 
 nothing by his writ; but that may have been on the ground of a
 
 PHILLIPS V. WARD 595 
 
 personal discharge, as by bankruptcy or insolvency, or upon some 
 ground which would not affect the merits of this case. Bramwell, 
 B. : It may have been on the ground that the plaintiff had not de- 
 livered a signed bill as required by the 6 & 7 Vict. ch. 73, section 37. 
 PiGOTT, B. : Or on tlie ground of infancy. Channell, B., referred 
 to Buckland v. Johnson, 15 C. B. 145 (E. C. L. R., vol. 80), 
 
 Bompas, in support of the plea. The plea discloses good matter 
 of estoppel, for it shows that the plaintiff's claim has been adjudi- 
 cated upon in an action against a co-contractor. That is the dis- 
 tinction between King v. Hoare and Henry v. Goldney. In the 
 former case judgment had been recovered, and the matter had 
 passed in rem judicatam; but in the latter there was merely the 
 pendency of another action for the same cause against another party. 
 The court, having already pronounced judgment as to the validity 
 of the plaintiff's claim, will not again adjudicate upon it in succes- 
 sive actions against each co-contractor.^^ 
 
 Pollock, C. B. : We are all of opinion that the plea can not be 
 sustained. This is an action against persons who are joint debtors 
 with another person not now sued; and because he was fortunate 
 enough to succeed by some plea or other in an action brought by 
 the plaintiff against him for the same cause, the defendants seek to 
 avail themselves of his immunity. Now, for anything which appears 
 on the face of this plea, he may have succeeded on matter of de- 
 fense, which, though good with respect to him, is not open to his 
 co-debtors. The consequence is that the plea is bad, and the plain- 
 tiff entitled to judgment. 
 
 Bramwell, B. : I am also of opinion that the plea is bad. No 
 doubt if a person jointly liable with others succeeds in an action 
 against him alone by pleading a release or payment, that would 
 afford a good defense to an action against the other joint debtors — 
 whether pleaded in bar or by way of estoppel seems unimportant — 
 for a release to one is a release to all, and payment by one is a 
 discharge of all. Therefore, in some cases, a judgment recovered 
 by one of several joint debtors may be pleaded in an action against 
 the others. But this plea does not shov/ that the former action was 
 successfully resisted on some ground common to all the joint debt- 
 ors ; but only that the court gave judgment for the defendant, which 
 may have been on some ground purely personal, as infancy, bank- 
 ruptcy, or insolvency. Then it is said that the plaintiff should have 
 replied specially showing how it was that he could maintain this 
 action though he had failed in the other. But in my opinion that 
 is not so. The plea ought to state a complete defense, and not call 
 upon the plaintiff to answer matter imperfectly pleaded. 
 
 Channell, B. : I am of the same opinion. The defendants 
 plead a judgment recovered by a joint debtor in a former action 
 for tlie same cause; and I think it incumbent on the defendants to 
 show by their plea that the judgment in that action is inconsistent 
 with their liability in this action. But, so far as this plea states, the 
 judgment for the defendant in the former action may have pro- 
 
 ^'Part of the argument of counsel is omitted.
 
 596 JUDGMENT 
 
 cccdcJ on a ground whlcli, tlioii.c:h alTordlnjT a perfect defense as 
 regards him, does not affect the liability of the present defendants. 
 
 PicoTT, B. : I am of tlie same opinion. This plea is in form a 
 plea in estoppel; but, whether it be considered in substance as a 
 plea in estoppel or a pica in bar, I think it bad, for it is perfectly 
 consistent with every allegation in it that, though the defendant in 
 the other action recovered judgment against the plaintiff, the de- 
 fendants in this action are still liable. It is said that the plaintiff 
 ought to have replied specially, but I am of opinion that the defend- 
 ants ought by their plea to show that the judgment in the former 
 action proceeded on a ground which operated as a discharge of all 
 the joint debtors. 
 
 judgment for the plaintiff.*® 
 
 OLD DOMININON COPPER MIN., ETC., CO. v. BIGELOW 
 
 Supreme Judicial Court of Massachusetts, 1909 
 
 203 Mass. 159 
 
 Two bills in equity were filed by the plaintiff against the defend- 
 ant, who was one of the two promoters who planned and affected 
 the organization of the plaintiff company, to compel, after rescission 
 by the plaintiff, the restitution of the consideration received by 
 the promoters for property alleged to have been sold at a large 
 profit without a full disclosure of material facts, or to compel an 
 accounting for the secret profits, and for damages for breach of 
 trust. After demurrers to the bill had been overruled, the defendant 
 was permitted to file supplemental answers setting up, as a bar 
 to the plaintiff's claim, a judgment of the Circuit Court of the United 
 States for the Southern District of New York in a suit like one 
 of the present suits in all particulars except that it was prosecuted 
 against the executors of the will of Lewisohn, the defendant's fellew 
 promoter, in which the defendant's demurrer to the bill had been 
 sustained and a decree entered dismissing the bill, which had been 
 
 '"Accord: Hunt v. Terrill, 7 J. J. Marsh. (Ky.) 67 (1831) ; McLelland v. 
 RidgeiK'ay, 12 Ala. 482 (1847) ; Ferguson v. State Bank, 11 Ark. 512 (1851) ; 
 Nevill V. Hancock, 15 Ark. 511 (1855) ; Brozvn v. Johnson, 13 Grat. (Va.) 644 
 (1857) ; Cowley v. Patch, 120 Mass. 137 (1876). A judgment for one is no 
 bar in an action against a co-contractor not within the jurisdiction at time of 
 first suit. Larison v. Hager, 44 Fed. 49 (1890). A judgment in favor of joint 
 defendants will not per se bar a several action, vice versa. Detroit v. Hoiigh- 
 ton, 42 Mich. 459, 4 N. W. 171, 287 (1880) ; McLean v. Hansen, 37 111. App. 48 
 (1890) ; McCormack v. Barton, 19 Misc. 625, 44 N. Y. S. 393 (1897) ; Roby 
 V. Rainsherger, 27 Ohio St. 674 (1875) ; Reynolds v. Pittsburgh C. & St. L. R. 
 Co., 29 Ohio St. 602 (1876). So also, a judgment in favor of one joint and 
 several promisor is no bar to an action against another unless it is shown that 
 the first judgment was rendered upon a defense which would be an extin- 
 guishment of the cause of action. Townsend v. Riddle, 2 N. H. 448 (1822) ; 
 Hill v. Morse, 61 Maine 541 (1873) ; Spencer v. Dearth, 43 Vt. 98 (1870). 
 Sec also Mann v. Edwards, 34 111. App. 473 (1889).
 
 OLD DOillNIOX COPPER MIN. &C. CO. V. BIGELOW 59/ 
 
 affirmed by the circuit court of appeals and the Supreme Court of 
 the United States.*^ It was contended that the matter was res judi- 
 cata as to Bigelow. On the supplemental answers a hearing was had 
 before a single justice, who reserved this among other questions 
 arising thereon for the consideration of this court.*^ 
 
 RuGG, J. : The liability of the defendant, as has been pointed out, 
 according to the law of this commonwealth, is one arising ex delicto. 
 The wrong committed was a tort, in which the defendant and 
 Levv'Isohn acted in concert. The finding of the single justice, sup- 
 ported by the evidence, is in substance that they were joint tort- 
 feasors. The inquiry then is, whether one of several joint tort- 
 feasors can plead a judgment in favor of his joint tort-feasor against 
 a plaintiff claiming to have been injured by their joint act as an 
 estoppel in suit by the same plaintiff against himself. 
 
 This can hardly be regarded as an open question in this com- 
 monwealth. In Sprague v. Oakes, 19 Pick. (Mass.) 455, which was 
 an action for trespass quare clausum fregit, it was said, respecting 
 such a defense, "The defendant v/as neither a party nor privy to 
 that judgment, was not bound by it, nor could he take advantage of 
 it." This case has never been overruled or questioned, and must be 
 regarded as stating the law of this commonwealth. There are other 
 authorities to the same point. Lansing v. Montgomery, 2 Johns. (N. 
 Y.) 382; Marsh v. Berry, 7 Covv^ (N. Y.) 344; Moore v. Tracy, 7 
 Wend. (N. Y.) 229; Gittleman v. Feltman, 122 App. Div. (N. Y.) 
 385 ; Atlantic Dock Co. v. Mayor and Aldermen of New York, 53 
 N. Y. 64; Tyng v. Clarke, 9 Hun (N. Y.) 269; Calkins v. Allerton, 
 3 Barb. (N. Y.) 171, 174; Gohle v. Dillon, 86 Ind. 327; Thompson 
 V. Chicago, St. Paul, etc., R. Co., 71 Minn. 89; Three States Lumber 
 Co. V. Blanks, 118 Tenn. 627. 
 
 The reason upon which these decisions rest is that there can be 
 no estoppel arising out of a judgment, unless the same parties have 
 had their day in court touching the matter litigated, and unless the 
 judgment is equally available to both parties. It requires no discus- 
 sion to demonstrate that a judgment in the Lewisohn suit against 
 the defendants would not have fixed liability upon tlie present de- 
 fendant. Hence there can be no estoppel under our law or under 
 the general principles of jurisprudence, because it is not mutual. 
 Brigham v. Fayerweather, 140 Mass. 141, 415 ; Dallinger v. Richard- 
 son, 176 Mass. yy, 83; Worcester v. Green, 2 Pick. (Mass.) 425, 
 429; Biddle & Smart Co. v. Burnham, 91 Maine 578; Moore v. 
 Albany, 98 N. Y. 396. "Estoppels to be good must be mutual." 
 Litchfield v. Goodnow, 123 U. S. 549, 552; Nelson v. Brown, 144 
 N. Y. 384, 390. Bigelow could not have appeared as of right and 
 made a defense in that suit. No judgment can be regarded as res 
 
 *''Old Dominion Copper Min. &c. Cd. v. Lewisohn, 210 U. S. 206, 52 L. ed. 
 
 1025^(1907). 
 
 ^'The facts, as summarized, relate to but one of the questions considered, 
 and only so much of the opinion of the court as refers to this question is 
 printed. Hammond, J., dissenting on the merits, concurred on this point with 
 the majority of the court. Knowlton, C. J., and Morton, J., dissenting on the 
 merits expressed no opinion on this brancli of the defense.
 
 598 JUDGMENT 
 
 judicata as to any matter Avhcrc the ri^^hts in the subject matter arise 
 out of mutuality, and not by succession, unless the ]iarty could, as 
 matter of right, appear and defend, even though he may have knowl- 
 edge of the suit. Otherwise, he might be bound by a judgment as 
 to which he had never had the oi)portunity to be heard, which is 
 opposed to the first principles of justice, Brahrook v. Boston Five 
 Cents Sav. Bank, 104 ]\Iass. 228, 2.^3. There is no privity between 
 joint wrongdoers, because all are jointly and severally liable. Corey 
 V. Havener, 182 ]\Iass. 250; Fcne'jf v. Boston & Maine R. Co., 196 
 JMass. 575, 581 ; Pinkerton v. Randolph, 200 Mass. 24, 28. There is 
 no right of contribution between joint w^rongdoers, where they are 
 in pari delicto with each other. ChurcJiill v. Holt, 127 Mass. 165. 
 They are equally culpable, and the wrong complained of results 
 from their joint effort. The right of recovery over by a municipality 
 against a person whose WTong created a defect in the highway, 
 Holyokc V. Hadley Co., 174 Mass. 424, is no exception to this rule, 
 because the tort committed by each of the wrongdoers is diverse in 
 character, and rests upon a different basis of liability, and there is a 
 right of indemnity in favor of the municipality. Lowell v. Glidden, 
 159 ]\Iass. 317, 319. We are aware of no instance of joint partici- 
 pation in a common tortious enterprise where there is any right of 
 contribution. One comprehensive definition of privies is such per- 
 sons as are "privies in estate — as donor and donee, lessor and lessee 
 and joint tenants; or privies in blood — as heir and ancestor; or 
 privies in representation — as executor and testator or administrator 
 and intestate ; or privies in law — where the law without privity in 
 blood or estate casts land upon another, as by escheat." Buckingham 
 V. Ludlum, 2)7 N. J. Eq. 137; Douglass v. Howland, 24 Wend. (N. 
 Y.) 35, 53. Joint tort-feasors come within none of the classes thus 
 described. The definition in Greenl. Ev., section 535, adopted by 
 the Supreme Court of the United States, in Litchfield v. Goodnow, 
 123 U. S. 549, 551, namely, "Alutual or successive relationship to 
 the same rights of property" equally fails to include joint tort- 
 feasors. If we turn to the law of privity as illustrated in actions 
 against partnerships and joint debtors, the soundness of this con- 
 clusion is confirmed. It has been repeatedly decided that an admin- 
 istrator of a decedent in one jurisdiction is not in privity with an ad- 
 ministrator of the same estate appointed in another jurisdiction, and 
 that a judgment against one such administrator is not res judicata 
 to the other. Ingersoll v. Coram, 211 U. S. 335, and cases cited; 
 Johnson v. Powers, 139 U. S. 156. In Chase v. Henry, 166 Mass. 
 577, it was held that discharge in insolvency in this commonwealth 
 did not bar the debt of a copartnership, one member of which was a 
 nonresident, although two were residents and the copartnership 
 had a regular place of business here. It has been several times held 
 that judgment against one surviving partner upon a claim against 
 the partnership was not admissible in evidence against the executors 
 of a deceased partner, although the existence of the partnership was 
 not disputed. Buckingham v. Ludlum, 37 N. J. Eq. 137; Moores'^ 
 /[ppeal s, 34 Pa. St. 411 ; Sturgess v. Beach, i Conn. 507; Larison 
 V. Hager, 44 I'cd. 49. The converse, which is exactly parallel to the
 
 OLD DOAIIXION COPPER IIIN. &C. CO. V. BIGELOW 599 
 
 present case, namely, that a jttdgment in favor of one partner or 
 joint and several debtor will not avail his associate in liability, has 
 often been decided. Townsend v. Riddle, 2 N. H. 448 ; McLelland 
 V. Ridgezvay, 12 Ala. 482 ; State Bank v. Robinson, 13 Ark. 214, 221 ; 
 Detroit V. Houghton, 42 IMich. 459, 560. It is difficult to conceive 
 of persons more closely identified with their common business than 
 joint debtors and partners, and if judgments against one do not 
 bind his associate, we do not see how persons occupying the less 
 intimate relation to each other, which Bigelow and Lewisohn did, 
 can be bound as privies. See also Williams v. Bankhead, 19 Wall. 
 
 563, 570. 
 
 Apart from authority and on principle the same result seems 
 necessary. Joint tort-feasors act in unison respecting a common 
 wrongful enterprise. It is one of the penalties, which the common 
 law (differing in this respect from the civil law) inflicts upon those 
 who jointly engage in intentional violation of the rights of others, 
 that each shall be left to bear the natural results of his conduct. 
 Courts will not lend their aid in adjusting the conflicting claims of 
 wrongdoers touching their own turpitude. 
 
 An injured party is given the right to pursue his remedy, either 
 singly or together, against those who thus cause injury, and may 
 proceed to judgment against all in separate actions. He is barred 
 only by a satisfaction. An inevitable corollary of these generally 
 undisputed propositions and one consonant with a fundamental sense 
 of justice is that a party has a right to try his case against every- 
 body who has done him a wrong by immediate and direct culpable 
 action. He is not precluded by a failure against one alleged joint 
 wrongdoer from attempting to pursue another. He is entitled to his 
 day in court against a particular adversary. We believe there are 
 no exceptions to this rule stated in this form. The cases where 
 judgment in favor of an active agent or servant avails a passive prin- 
 cipal or master, Portland Gold Min. Co. v. Stratton's Independence, 
 158 Fed. 63 and cases cited, or where the relation of indemnitor and 
 indemnitee exists. Port Jervis v. First Nat. Bank of Port Jervis, 96 
 N. Y. 550, do not constitute exceptions to tliis rule, but stand on a 
 different ground. 
 
 For another reason the New York judgment in favor of Lew- 
 isohn seems not to be a bar. The joint actor with the defendant was 
 not the defendant in the New York suit, but it was prosecuted 
 against his executors. If it be assumed that there was a kind of 
 privity between the two who acted in concert, that privity was 
 broken by the death of one. There is no privity between Lewisohn's 
 executors and Bigelow. Elva v. Edwards, 13 Allen (Mass.) 48; 
 Merrill v. New England Ins. Co., 103 Mass. 245, 249 ; Thompson v. 
 American Surety Co., 170 N. Y. 109. It can not be said that the 
 plaintiff has elected to pursue his remedy against the estate of Lew- 
 isohn to the exclusion of his rights against Bigelow. As between 
 joint tort-feasors the doctrine of election has no application, and 
 moreover the plaintiff sought the New York forum voluntarily only 
 in the sense of being compelled to go there that a court might acquire 
 jurisdiction of those defendants.
 
 boo JUDGMEXT 
 
 The cletcriniii.ition that the rchitiou between Lewisohn and Bigc- 
 ]o\v was that of joint tort-feasors respecting a cause of action 
 arising ex deUcto disposes also of the argument pressed by the de- 
 fendant, that Lewisohn was trustee, agent or representative of Bige- 
 low to such an extent that he was in iirivity with him. See Bigelow 
 V. Old nonunion Copper Mm., etc, Co., 74'N. J. Eq. 457.^ 
 
 The conclusion is, therefore, that the matters set up in the sup- 
 plemental answers do not preclude the plaintiff from continuing tlie 
 prosecution of the present suits.*'' 
 
 CROMWELL V. COUNTY OF SAC. 
 
 Supreme Court of the United States, 1876 
 
 94 U. S. 351^ 
 
 Field, J.: This was an action on four bonds of the county of 
 Sac, in the state of Iowa, each for $1,000, and four coupons for in- 
 terest, attached to them, each for $100. The bonds were issued in 
 i860, and were made payable to bearer, in the city of New York, in 
 
 *°The prevailing rule is that a judgment in favor of one of the joint tort 
 feasors will not bar a separate action against another. Lansing v. Montgom- 
 ery, 2 Johns. (N. Y.) 382 (1807) ; Sprague v. Waitc, 36 Mass. 455 (1837); 
 Atlantic Dock Co. v. New York, 53 N. Y. 64 (1873), semble; Coble v. Dillon, 
 86 Ind. 327, 44 Am. Rep. 308 (1882) ; Thotnp.wn v. Chicago, St. P. &c. R. Co., 
 71 Minn. 89, 73 N. \V. 707 (1898) ; Three States Lumber Co. v. Blanks, 118 
 Tenn. 627, 102 S. W. 79 (1907) ; Staunton Mut. Tel. Co. v. Buchanan, 108 Va. 
 810, 62 S. E. 928 (1908), semble; Sutter v. Kansas City, 138 Mo. App. 105, 
 119 S. W. 1084 (1909) ; Louisville, H. & St. L. R. Co. v. Linton, 43 Ind. App. 
 709, 88 N. E. 532 (1909) ; Nelson v. Illinois Cent. R. Co., 98 Miss. 295, 53 So. 
 619 (1910). Contra: People v. Stephens, 51 How. Pr. (N. Y.) 235 (affd. 71 
 N. Y. 527) (1S76) ; Jenkins v. Atlantic Coast Line R. Co., 89 S. Car. 408, 
 71 S. E. loio (1911). 
 
 "The general rule that one many not have the benefit of a judgment as 
 an estoppel unless he would have been boimd by it had it been the other way, 
 is subject to recognized exceptions, one of which is that in actions of tort, 
 such as trespass, if the defendant's responsibility is necessarily dependent 
 upon the culpability of another, who was the immediate actor, and who, in 
 an action against him by the same plaintiff for the same act, has been ad- 
 judged not culpable, the defendant may have the benefit of that judgment 
 as an estoppel even though he would not have been bound by it had it been 
 the other way." Portland Cold Min. Co. v. Stratton's Independence, 158 Fed. 
 63 (1907) ; Ferrers v. Arden, Cro. Eliz. 668 (1598) ; Biggs v. Benger, 2 Ld. 
 Raym. 1372 (1724); King v. Chase, 15 N. H. 9, 41 Am. Dec. 675 (1844); 
 Emery v. Foii-ler, 39 Maine 326, 63 Am. Dec. 627 (1855); IVilliams v. Mc- 
 Grade, 13 Minn. (Gil. 39) 46 (1868) ; Hill v. Bain, 15 R. I. 75, 23 Atl. 44 
 (1885); Feathcrston v. Newburgh & C Turnpike, 71 Hun 109, 24 N. Y. S. 
 603, 54 X. Y. St. 71 (1893) ; Doremus v. Root, 23 Wash, 710, 63 Pac. 572, 54 
 L. R. A. 649 ('1901) ; Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. 
 R. A. 119 f 1002) ; Anderson v. West Chicago St. R. Co., 200 111. 329, 65 N. E. 
 717 0902) ; McCinnis v. Chicago R. I. & P. R. Co., 200 Mo. 347, 98 S. W. S90 
 C1906) ; Munt:: v. Algiers & G. S. R. Co., 116 La. 235, 40 So. 688 (i9o6) ; Willi- 
 ford V. Kansas City M. &c. Co., 154 Fed. 514 (1907) : Logan v. Atlanta & C 
 A. Co., 82 S. Car. 518, 64 S. E. 515 (1909). Contra: ///. Cent. R. Co. v. Clarke, 
 85 >ti';s. 691, 38 So. 97 ('1904). 
 
 "Part of the opinion of the court and the dissenting opinion are omitted.
 
 CROMWELL V. COUNTY OF SAC 6oi 
 
 the years 1868, 1869, 1870 and 1871, respectively, with annual inter- 
 est at the rate of ten per cent, a year. 
 
 To defeat this action, the defendant relied upon the estoppel of 
 a judgment rendered in favor of the county in a prior action brought 
 by one Samuel C. Smith upon certain earlier maturing coupons on 
 the same bonds, accompanied with proof that the plaintiff Cromwell 
 was at the time the owner of the coupons in that action, and that 
 the action was prosecuted for his sole use and benefit. 
 
 The questions presented for our determination relate to the opera- 
 tion of this judgment as an estoppel against the prosecution of the 
 present action, and the admissibility of the evidence to connect the 
 present plaintiff with the former action as a real party in interest. 
 
 In considering the operation of this judgment, it should be borne 
 in mind, as stated by counsel, that there is a difference between the 
 effect of a judgment as a bar or estoppel 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 subse- 
 quent action. It is a finality as to the claim or demand in contro- 
 versy, concluding parties and tliose in privity with them, not only 
 as to every matter which was offered and received to sustain or 
 defeat the claim or demiand, but as to any other admissible matter 
 which might have been offered for that purpose. Thus for ex- 
 ample, a judgment rendered upon a promissory note is conclusive 
 as to the validity of the instrument and the amount due upon it, 
 although it be subsecjuently alleged that perfect defenses actually 
 existed, of which no proof was offered, such as forger}^ want of 
 consideration, or payment. If such defenses were not presented in 
 the action, and established by competent evidence^^, the subsequent 
 allegation of their existence is of no legal consequence. The judg- 
 ment is as conclusive, so far as future proceedings at law are con- 
 cerned, as though the defenses never existed. The language, there- 
 fore, which is so often used, that a judgment estops not only as to 
 every ground of recovery or defense actually presented in the action, 
 but also as to every ground which might have been presented, is 
 strictly accurate, when applied to the demand or claim in contro- 
 versy. Such demand or claim, having passed into judgment, can not 
 again be brought into litigation between the parties in proceedings 
 at law upon any ground whatever.^- 
 
 ^*As to evidence compare Smith v. IVhiting, 11 Mass. 445 (1814) ; Estate of 
 Harrington, 147 Cal. 124, 86 Pac. 546, 109 Am. St. Rep. 118 (1905) ; Raneyjy^ 
 Westlake. 216 Pa. ■^74. 65 Atl . 807 (1907), with Cole v. Nashville, 6 Cold. 
 (Tenn.) 639 (1868); Lewis v. Davis, 8 Daly (N. Y.) 185 (1878) ; Alabama 
 G. S. R. Co. V. B livens, 92 Ga. 522, 17 S. E. 836 (1893) ; Damren v. American 
 Light & Power Co., 95 Maine 278, 49 Atl. 1092 (1906). 
 
 ^'Ferrer's Case, 6 Coke 7, Cro. Eliz. 668 (1598) ; Anderson v. Campbell, 3 
 Wils. C. P. 304 (1772) ; Diichcss of Kingston's Case, 20 How. St. Tr. 355 
 (1776) ; Outram v. Morewood, 3 East 346 (1803) ; Stafford v. Clark, 2 Bingli. 
 377 (1824) ; Wood v. Jackson, 8 Wend. (N. Y.) 9, 22 Am. Dec. 603 (1831) ; 
 Doty V. Brown, 4 N. Y. 71, 53 Am. Dec. 350 (1850) ; Mervine v. Parker, 18 
 Ala. 241 (1850); Sawyer v. Woodbury, yz (7 Gray) Mass. 499, 66 Am. Dec.
 
 602 JUDGMENT 
 
 r.ut \vhcrc the sccmul nclioii botwccii Ihc same parties is upon 
 a ditrcrciit claim or dcmaiul, tlie jiiclj^mcnt in the prior action oper- 
 ates as an estoppel only as to those matters in issue or points contro- 
 verted, upon the determination of which the finding or verdict was 
 rendered. In all cases, therefore, where it is sought to ai^ply tlie 
 estoppel of a judgment rendered upon one cause of action to matters 
 arising in a suit upon a ditl'erent cause of action, the inquiry must 
 always be as to the point or cjucstion actually litigated and deter- 
 mined in the original action, not what might have been thus litigated 
 and determined. Only upon such matters is the judgment conclu- 
 sive in another action.''-"' 
 
 The difference in the operation of a judgment in the two classes 
 of cases mentioned is seen through all the leading adjudications 
 upon tlie doctrine of estoppel. Thus in the case of Outraiii v. More- 
 zvood, 3 East 346, the defendants were held estopped from averring 
 title to a mine in an action of trespass for digging out coal from 
 it, because in a previous action for a similar trespass, they had set 
 up the same title, and it had been determined against them. In 
 commenting upon a decision cited in tliat case, Lord Ellenborough, 
 in his elaborate opmion, said: "It is not recovery, but the matter 
 alleged by the party, upon which the recovery proceeds, which cre- 
 ates the estoppel. The recovery of itself in an action of trespass 
 is only a bar to the future recovery of damages for the same injury ; 
 but the estoppel precludes parties and privies from contending to 
 the contrary of that point or matter of fact, which, having been 
 once distinctly put in issue by them, or by those to whom they 
 
 518 (1856) ; Hargus v. Goodman, 12 Ind. 629 (1859) ; Gray v. GillUan, 15 111. 
 453, 60 Am. Dec. 761 (1854) ; Walker v. Chase, 53 Maine 258 (1865) ; Jamaica 
 Pond Aqueduct Corp. v. Chandler, 121 Mass. I (1876) ; _Sclru!an v. Kelly, I23 
 Pa. St. 65, 33 Atl. 1 107 (1896) ; Crunert v. Spalding, 104 Wis! 193, 80 N. W. 
 589 (1899) ; IVooster v. Cooper, 59 N. J. Eq. 204, 45 Atl. 381 (1899) ; King v. 
 Ross, 21 R. I. 413, 45 Atl. 146 (1899) ; Bacon v. Hunt, 72 Vt. 98, 47 Atl. 394 
 (1900) ; Mershon v. Williams, 63 N. J. L. 398, 44 Atl. 211 (1899) ; Lockyer v. 
 Ferryman, L. R. (1S77) 2 App. Cas. 519; Sly v. Hunt, 159 Mass. 151, 34 N. E. 
 187 (1S93) ; Penny v. British & American Mortgage Co., 132 Ala. 357, 31 So. 
 96 (1901) ; Allcn jf^Jjil'-ynnfinnnl Tprt R Cn., 2r>T Pa. 579, K\ Atl. 2>22, 88 
 Am. St. 834" (1902) ; Ilavjkshurst v. Ashury Park, 65 N. J. Eq. 496, 56 Atl. 
 697 (1903J ; McKinnon v. Johnson, 59 Fla. 332, 52 So. 288 (1910) ; Gould y. 
 Randal, 232. Pa. 612, Ri AtLEoo (1911); Mound City v. Castlcman, 187 Fed. 
 92 (1911) ; Pratt \. Griffin, 223 111. 349, 79 N. E. 102 ( 1906) ; Blcaklcy v. 
 Barclay, 75 Kans. 462, 89 Pac. 906 (1907) ; Corbett v. Craven, 196 Mass. 319, 
 82 N. E. Z7 (1907) ; Peo ple's Trust Co. v- L/iWtfl r/. ^6 Pa. Super. ClJlqi 
 (1914). The principle applies whether the first adjudication is in a court of 
 law or equity. Mutual Life Ins. Co. v. Nezvton, 50 N. J. L. 571, 14 Atl. 756 
 (18S8) ; United Oil & Gas Co. v. Ellsworth, 43 Ind. App. 670, 88 N. E. 362 
 (1908) ; Spink v. Philadelphia Hydro-Electric Co., 24S Pa. 143 . Oi Atl. 609 
 (1914). But see Vicksbnrg v. tlenson, 231 U. S. 259, 58 L. ed. 209 (1913). 
 
 '■•^ Hibshma n v Didlrhnn, 4 \Vattj; rPa.^ t8^ ( i8^0 ; Christian v. Penn, 
 7 Ga. 434 (1849) ; Lentzv. Wo UnrpW'? Pn s;t ^12, i;^ Am Dec. 569 (1851) ; 
 Duncan v. Holcomb, 26 Ind. 378 (1866) ; Lindsey v. Danville, 46 Vt. 144 
 (1873) ; Spurlock v. Missouri Pac. R. Co., 76 Wis. 67 (1882) ; Wiggins Ferry 
 Co. V. Ohio & M. R. Co., 142 U. S. 396, 35 L. ed. 105S (1892) ; Stokes v. 
 Foote, 172 X. Y. 327, 65 N. E. 176 (1902) ; Stroup v. I^epper, 69 Kans. 241, 76 
 Pac. 825 (1904) ; Lim Jew v. United States, 196 Fed. 736 (1912) ; Grider v. 
 Groff, 202 Fed. 685 (1912) ; Chapman v. F'ropp, 125 Minn. 447, 147 N. W. 442 
 (1914) ; Wliitaker v. Garren, 167 N. Car. 658, 83 S. E. 759 (1914).
 
 CROMWELL V. COUNTY OF SAC 603 
 
 are privy in estate or law, has been, on such issue joined, solemnly 
 found against them." And in the case of Gardner v. Biickhee, 3 
 Cow. (N. Y.) 120, it was held by the Supreme Court of New York 
 that a verdict and judgment in the marine court of the city of New 
 York, upon one of two notes given upon a sale of a vessel, that the 
 sale was fraudulent, the vessel being at the time unseaworthy, were 
 conclusive upon the question of the character of the sale in an action 
 upon the other note between the same parties in the court of com- 
 mon pleas. The rule laid down in the celebrated opinion in the case 
 of the Duchess of Kingston was cited, and followed: "That the 
 judgment of a court of concurrent jurisdiction directly upon the 
 point is as a plea at bar, or as evidence conclusive between the same 
 parties upon the same matter directly in question in another court." 
 These cases usually cited in support of the doctrine tliat the 
 determination of a question directly involved in one action is con- 
 clusive as to that question in a second suit between the same parties 
 upon a different cause of action, negative the proposition that the 
 estoppel can extend beyond the point actually litigated and deter- 
 mined. The argument in these cases, that a particular point was 
 necessarily involved in the finding in the original action, proceeded 
 upon the theory that, if not thus Involved, the judgment would be 
 inoperative as an estoppel. 
 
 It is not believed that there are any cases going to the extent 
 that because in the prior action a different question from that actu- 
 ally determined might have arisen and been htigated, therefore such 
 possible question Is to be considered as excluded from consideration 
 in a second action between the same parties on a different demand, 
 although loose remarks looking in that direction may be found In 
 some opinions. On principle, a point not in litigation in one action 
 can not be received as conclusively settled In any subsequent action 
 upon a different cause, because it might have been determined in 
 the first action. 
 
 Various considerations other than the actual merits may govern 
 a party in bringing forward grounds of recovery or defense In one 
 action, which may not exist In another action upon a different de- 
 mand, such as the smallness of the amount or the value of the prop- 
 erty In controversy, the difficulty of obtaining the necessary evidence, 
 the expense of the litigation and his own situation at the time. A 
 party acting upon considerations like these ought not to be precluded 
 from contesting in a subsequent action other demands arising out 
 of the same transaction. A judgment by default only admits for 
 the purpose of the action the legality of the demand or claim In 
 suit ; It does not make the allegations of the declaration or complaint 
 evidence in an action upon a different claim.^^ The declaration may 
 contain different statements of the cause of action in different counts. 
 
 _""That a judgment by default has an operation by estoppel can not be 
 denied ; but the ground and extent of that estoppel must, in my opinion, be 
 found on the face of the judgment itself, and can not be inferred or deduced 
 from the pleading of the party who has obtained the judgment, when the de-
 
 ()04 JUDGMENT 
 
 Tt could hartlly be prctcmlcd that a jiKl.c;:nicnt by default in such 
 a case would make the several statements evidence in any otlier pro- 
 cecdinjj. Boylcau v. Kittrnt, 2 I'^xch. 665, 681 ; Hughes v. Alexander, 
 5 Ducr 493. 
 
 If. now, \vc consider the main question presented for our deter- 
 mination by the ligh.t of the views thus expressed and the authorities 
 cited, its solution will not be difficult. It appears from the findings 
 in the original action of Smith, that the county of Sac, by a vote 
 of its people, authorized the issue of bonds to the amount of ,$io,ooo, 
 for the erection of a court house ; and bonds to that amount were 
 issued by tlie county judge, and delivered to one Meserey, with 
 whom he had made a contract for the erection of the court house ; 
 that immediately upon receipt of the bonds the contractor gave one 
 of them as a gratuity to the county judge; and that the court house 
 was never constructed by the contractor, or by any other person 
 pursuant to the contract. It also appears that the plaintiff had be- 
 come, before their maturity, the holder of twenty-five coupons, 
 which had been attached to the bonds ; but there was no finding that 
 he had ever given any value for them. The court below held, upon 
 these findings, that the bonds were void as against the county, and 
 gave judgment accordingly. The case coming here on writ of error, 
 this court held that the facts disclosed by the findings were sufficient 
 evidence of fraud and illegality in the inception of the bonds to call 
 upon tlie holder to show that he had given value for the coupons ; 
 and, not having done so, the judgment was affirmed. Reading the 
 record of tlie lower court, it must be considered that the matters 
 adjudged in that case were these : that the bonds w^ere void as against 
 the county in the hands of parties who did not acquire them before 
 maturity and give value for them, and that the plaintiff, not having 
 proved that he gave such value, was not entitled to recover upon 
 the coupons. \Miatever the illegality or fraud there was in the issue 
 and delivery to the contractor of the bonds affected equally the cou- 
 pons for interest attached to them. The finding and judgment upon 
 the invalidity of the bonds, as against the county, must be held to 
 estop the plaintiff here from averring to the contrary. But as the 
 bonds were negotiable instruments, and their issue was authorized 
 by a vote of the county, and they recite on their face a compliance 
 with the law providing for their issue, they would be held as valid 
 obligations against the county in the hands of a bona fide holder 
 taking them for value before maturity, according to repeated de- 
 cisions of this court upon the character of such obligations. If, 
 therefore, tlie plaintiff received the bond and coupons in suit before 
 maturity for value, as he offered to prove, he should have been 
 permitted to show that fact. There was nothing adjudged in the 
 former action in the finding that the plaintiff had not made such 
 proof in that case which can preclude the present plaintiff from 
 
 fendant has said nothing, and done nothing: and has merely allowed the judg- 
 ment to go by default." Per Fitz. Gibbon, L. J., in Irish Land Commission v. 
 Ryan, L. R. (1900), 2 Ir. 565; Frost v. Koon, 30 N. Y. 428 (1864) ; Hanliam v. 
 Sherman, 114 Mass. 19 (1873) ; Lazvson v. Conaway, 37 W. Va. 159, 16 S. E. 
 564, 18 L. R. A. 627, 38 Am. St. 17 (1892).
 
 ' CROMWELL V. COUNTY OF SAC 605 
 
 making such proof here. The fact that a party may not have shown 
 that he gave value for one bond or coupon is not even presumptive, 
 much less conclusive, evidence that he may not have given value for 
 another and different bond or coupon. The exclusion of the evi- 
 dence offered by the plaintiff was erroneous, and for the ruling of 
 the court in that respect the judgment must be reversed and a new 
 trial had.^* 
 
 Judgment reversed. 
 
 Clifford, J., dissented. 
 
 ^^Accord: Neshit v. Riverside Independent Dist., 144 U. S. 610, 12 Sup. Ct. 
 746, 36 L. ed. 562 (1892) ; Crandall v. Gallup, 12 Conn. 365 (1837) ; Russell 
 V. Place, 94 U. S. 606, 24 L. ed. 214 (1876) ; Watts v. JVatts, 160 Mass. 464, 
 36 N. E. 479 (1894) ; Kapp y. Shields, 17 Pa. Super. Ct. ^2^(1901) ; Callan v. 
 Anderson, 131 Ala. 22S, 31 So. 427 (1901); Stokes v.' Poole, 172 N. Y. 327, 
 65 N. E. 176 (1902) ; Ha rtman v. Pittsburgh Inc l ined Plane Co. , 23 Pa. Super. 
 Ct. 360 (1903) ; Flarrison v. Remington Paper Co., 140 I'ed. 385, 72^. C. A. 
 405, 3 L. R. A. (N. S.) 954 (1905) -^Northern P. R. Co. v. Slaight, 20S U. S. 
 122, 51 L. ed. 738 (1907) ; Virginia-Carolina Chemical Co. v. Kirven, 215 
 U. S. 252, 54 L. ed. 179 (1909); United States v. Naldrett, 214 Fed. 895 
 (1914). "Only material, relevant and necessary facts decided in a former 
 action are conclusively determined thereby. The judgment does not operate 
 as an estoppel as to immaterial or imessential facts, even though put in issue 
 by the pleadings and directly decided." Stannard v. Hiihhell, 122, N. Y. 520, 
 25 N. E. 1084 (1890); Geneva N. Bk. v. Independent School Dist., 25 Fed. 
 629 (18S5) ; Unglish v. Marvin, 128 N. Y. 380, 28 N. E. 634 (1891) ; Taylor v. 
 Hutchinson, 61 N. J. L. 440, 39 Atl. 664 (1898) ; Burlcn v. Shannon, 99 Mass. 
 200, 96 Am. Dec. 733 (1868). Where a judgment in a former suit is relied on 
 as conclusive, it may be shown by evidence aliunde not inconsistent with the 
 record that the particular point was not adjudicated, if in law the judgment 
 could have been rendered on any other point. Seddon V. Tiitop, 6 T. R. 607 
 (1796) ; Packet Co. v. Sickles, 72 U. S. 580 (1866) ; Cole mqn\ s Appeal. 62 
 Pa. St. 2 52 (1869) ; Follansbee v. JValker. 7 A Pa. St. j o6 7i87.^') ; Lewis v. 
 Ocean N. P. Co., 125 N. Y. 341, 26 N. E. 301 (1891) ; SnsQuehanna Miit. E ire 
 Co. v. Mardorf. 1^2 Pa. 22^^ 25 A tl. 234 (1892); Nashua & L. R. Corp. v 
 Boston & L. R. Corp., i^Mass. 222, 41 N. E. 268, 49 Am. St. 454 (1895) ', 
 Er.ibdcn v. Lisherncss, 89 Maine 578, 36 Atl. iioi, 56 Am. St. 442 (1897); 
 Pctmrhnkpy v Pn rkcr, 33 Pa. Super. Ct. 4 S8 (1Q07): Clark v. Scovill, 19S 
 N._Y. 279, 91 N. E. 800 (1910). In Bigelow V. Windsor, 67 Mass. 299 (1854), 
 it is said by Shaw, C. J.: "To ascertain whether a past judgment is a bar to 
 another suit, we are to consider, first, whether the subject-matter of legal 
 controversy, which is proposed to be brought before any court for adjudica- 
 tion, has been drav/n in question, and within the issue of a former judicial 
 proceeding which has terminated in a regular judgment on the merits, so that 
 the whole question may have been detennined by that adjudication; secondly, 
 whether the former litigation was between the same parties, in the same right 
 or capacity litigating in the subsequent suit, or their privies respectively, 
 claiming through or under them, and bound and estopped by that which would 
 bind and estop those parties, and thirdly, whether the former adjudication 
 was had before a court of competent jurisdiction to hear and decide on the 
 whole matter of controversy, embraced in the subsequent suit." 
 
 In Mershon v. Williams, 63 N. J. L. 401, 44 Atl. 211 (1899), it is said: 
 "A matter is not res judicata unless there be (i) identity of the thing sued 
 for, (2) of the cause of action, (3) of the persons and parties, (4) and of the 
 quality of the persons for and against whom the claim is made." Bouv. Law 
 Die. tit. res judicata; Bens v. Hines, 3 Kans. 390 (1866). As to the last two, 
 they may be admitted. But as to the first two, it has been pointed out the 
 decisions frequently fail to observe the difference between a judgment set up 
 as a bar, when there must be identity in the cause of action, and a judgment 
 offered as evidence of a particular question when all that is necessary is that 
 the issue raised in the second suit must be identical with the issue in the
 
 6o6 JUDGMENT 
 
 ROBINSON V. ROBINSON 
 Court of King's Bench, 1603 
 
 Cro. Joe. 15'° 
 
 Debt, as executor of J. S. The defendant pleaded quod auter- 
 foit he brought an action as administrator of J. S. for this debt, 
 and was therein barred; and prayed judgment, whether the present 
 action was maintainable. The truth was, that the plaintiff and 
 another were made executors, and he, not knowing thereof, took 
 out administration, and brought debt as administrator; to which 
 action it was pleaded in abatement, that another was made executor 
 who had proved the will and administered; and upon this plea he 
 was barred. Having now proved the will, and the other executor 
 being dead, he brought the present action as executor ; and the de- 
 fendant pleaded against him the former bar. 
 
 The Court adjudged tliat it was no bar; for although once a 
 bar in a personal action is a bar perpetual, that is to be understood 
 when it is a bar to the right, but here it was not any bar; but by 
 tlie misconceiving of his action, the action abated, wherefore it is 
 not any bar in a new action. And it was adjudged accordingly .^^ 
 
 WILBUR V. GILMORE 
 Supreme Judicial Court of Massachusetts, 1838 
 
 38 Mass. 250 
 
 Trespass quare clausum. The action was submitted to referees 
 under a rule of court. They awarded to the plaintiff the sum of $5, 
 as the actual value of wood and timber cut and carried away by the 
 defendant, and submitted to the determination of the court the legal 
 questions arising in the case. 
 
 first. Freeman on Judgments (4th edj, §§ 252-256; Black on Judgments (2d 
 ed.), §§ 610, 611, 23 Cyc. 1298. Ferhinger v. F. H. Martin Drug Co., 56 Colo. 
 445, 138 Pac. 1107 (1914) ; Chicago Terminal R. Co. v. U'itisloiv, 216 111. 166, 74 
 N. E. 815 (1905) ; Robinson & Co. v. Marr, 181 111. App. 605 (1913) ; Coyle 
 V. Due, 149 N. W. 122, 28 N. Dak. 400 (1914)- 
 
 "S. C. Robinson's Case, 5 Coke 33, where the earlier cases are referred to. 
 
 "Accord: ^"'!»'y v Tii<:j<r_a )ice Co. of P cnnsylvq}iiaj_i2 Pa. St. 391 
 (1849) ; Jordan V. Sci'fcrt, 126 Mass. 25 (1878) ; 777// v. Huckabce, 70 Ala. 183 
 (l88i) ; Atkins v. Anderson, 63 Iowa 739, I9 N- W. 323 (1884) ; Garrett v. 
 Greenu-cll, 92 Mo. 120, 4 S. W. 441 (18S7) ; Jerico V. Underhill, 67 Vt. 85, 
 30 All. 690, 48 Am. St. 804 (1894) ; In re IVrislcy, 126 Mich. 109, 85 N. W. 
 456 (1901); Succession of Jones, 120 La. 986, 45 So. 965 (1908); Lyons v. 
 Hammond Elevator Co., 139 111. App. 495 (1908). Hence, where a foreign 
 corporation fails in an action because it has not registered in compliance 
 with a state law, it is not debarred from bringing a second action after com- 
 plying with the law. Pittshurgh Construction Co. V. We stside Belt R., 227 
 Pa. 90, 75 Atl. 1029 (1910). And a judgment given because of misjoinder or
 
 WILBUR V. GILMORE 607 
 
 The trespass was committed in the Ufetime of the plaintiff's 
 testator. In the year 1835, the plaintiff commenced a suit against 
 tlie defendant for the same cause of action. To that suit there was 
 a general demurrer and joinder in the court of common pleas, and 
 judgment was there rendered that the declaration was bad and that 
 the defendant recover his costs. The defendant insisted that those 
 proceedings were a bar to tlie present action.^^ 
 
 Morton, J. : The general rule undoubtedly is, that the judgment 
 in one action shall bar all other suits between the same 'parties and 
 for the same cause of action. Interest republicae ut sit finis litium. 
 But this rule is limited to judgments rendered on the merits. If 
 the plaintiff be nonsuit for want of proof, or because his allegata 
 and probata do not agree, or for any other cause, he may commence 
 another action, i Chitty PI. (5th ed.) 227; Gould PI. 478. Even 
 a judgment of nonsuit on the merits, or on an agreed statement 
 of facts, has been holden to be no bar to another action. Knox v. 
 Waldoborongh, 5 Greenl. (Maine) 185; Bridge v. Sumner, i Pick. 
 (Mass.) 371.^^ So if the plaintiff mistake the form of his action, as 
 if he bring trespass instead of trover, and his writ be adjudged bad 
 on demurrer, the judgment will not bar an action of trover, i 
 Chitty Pl._ (5th ed.) 227; Gould PI. 478, section 6. So if the plaintiff 
 mistake his cause of action and the defendant demur and have judg- 
 ment, this will not preclude the plaintiff from commencing a fresh 
 action correctly setting forth the right cause. So also if the declara- 
 tion be demurred to, or a bad plea be pleaded and demurred to, and 
 a judgment be rendered against the plaintiff for the insufficiency of 
 his declaration, it will not estop the plaintiff from bringing another 
 action to enforce the same right; because the case as stated in the 
 last declaration was not tried in the first. In all these cases, if 
 
 nonjoinder of parties or because of want of capacity in a party to sue or be 
 sued establishes nothing but such defect or incapacity and will not debar a 
 subsequent suit where such objection does not exist. Harris v. Columbia 
 Water & Light Co., 114 Tenn. 328, 85 S. W. 897 (1904). 
 
 _ ^'The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 ^^"A nonsuit is but like blowing out a candle, which a man at his 
 own pleasure lights again." Clapp v. Thomas, 87 Mass. 158 (1862), citing 
 March on Arbitrements, 215. Such a judgment is not final upon the merits. 
 Daggett v. Robins, 2 Blackf. (Ind.) 415, 21 Am. Dec. 7S2 (1831) ; Brintnall 
 V. Foster, 7 Wend. (N. Y.) 104 (1831) ; Bond v. McNider, 3 Ired. (25 N. 
 Car.) 440 (1843) ; Foster v. Wells, 4 Tex. loi (1849) ; Fisk v. Parker, 14 La. 
 Ann. 491 (1859) ; Blair v. McLean. 2^ Pa. 7 7 (18^! Holland v. Hatch, 15 
 Ohio St. 464 (1864); Beckett v. Stone, 60 N. ].~C7~23, 36 Atl. 880 (1897); 
 Honsinger v. Union Carriage &c. Co., 175 N. Y. 229, 67 N. E. 436 (1903) ; 
 Deneen v. Houghton County St. R. Co., 150 Mich. 235, 113 N. W. 1126 (1907) ; 
 Grats V. Parker, 137 Wis. 104, 118 N. W. 637 (1908) ; Zeller v. Ranson, 140 
 Mo. App. 220, 123 S. W. 1016 (1909); Buchanan v. James, 134 Ga. 475 68 
 S. E. 72 (1910). Contra: Ordway v. Boston & M. R. Co., 69 N. H. 429 43 
 Atl. 243 (1899) ; Clow V. West, 2,7 Nev. 267, L. R. A. 1916A, 696n, 142 Pac. 
 226 (1914) ; McGiiire v. Bryant Lumber and Shingle Mill Co., 53 Wash. 425, 
 102 Pac. 237 (1909) ; Lezvis v. Superior Court of Butte County, 11 Cal. App! 
 483, 105 Pac. 763 (1909). The same rule applies where the dismissal of an 
 action is equivalent to a nonsuit. Woods v. Lindwall, 48 Fed. 62 (1891) • Mc- 
 pherson V. Sivift, 27 S. Dak. 296, 130 N. W. 768 (1911) ; County of Morrison 
 V. Lyonburg, 124 Minn. 495, 145 N. W. 380 (1914).
 
 6oS JUDGMENT 
 
 the defendant plead tlic former judgment in bar, the plauitiff may 
 reply tliat it was not obtained on the merits, i Chitty PI. (5th ed.) 
 2J7; Gould n. 478, section 45; Vin. Abr. Judgment (Q. 4) ; Lam- 
 />(•« V. Kcilgc^'-''", I IMod. 207. In this last case, North, C. J., says: 
 "There is no question but that if a man mistakes his declaration and 
 the defendant demurs, the plaintiff may set it right in a second 
 action." 
 
 It is apparent from the record that the former judgment between 
 these parties was rendered ui)on the insufficiency of the declaration 
 and not upon the merits of tlie case, and therefore can be no bar to 
 the present action."* 
 
 '■'A judcrment on demurrer, if upon the merits, is, in effect, as conclusive 
 as if established bv evidence submitted to a court or jury. Lampcn v. Kcdge- 
 1CW. I Mod. 207 (167=;); Bonchand v. Bias, 3 Denio (N. Y.) 239 (1846); 
 Rohnison V. Ilon'ard, 5 Cal. 428 (iSs-^) ; Vanlandingham V. Ryan, 17 HI- 25 
 (iS^O ; Aurora v. West, 7 Wall. (U. S.) 82, 19 L. ed. 42 (1868) ; Woolley v. 
 LouisviUc BankUiq Co.. 81 Ky. 527, 5 Kv. L. 562 (1883) ; Coney v. Harney, 
 SZ N. J. L. 53, 20 Atl. 736 (1891) ; Lutterell v. Reynolds, 63 Ark. 254, 37 S. W. 
 lo;i (1896^; Trahior v. Maverick T. Co., 92 Nebr. 821, 139 N. W. C66 (1913)- 
 But a demurrer based on fonnal and technical defects, or, Avhich goes to the 
 sufficiency of tlie complaint in point of form,_ while conclusive upon the 
 point determined is not conclusive upon the merits. Gilman v. Rives, 10 Pet. 
 (U. S.) 298, 9 L. ed. 432 (1836); Gerrish v. Praff, 6 Minn. (Gil. 14) 53 
 (1861); Birch V. Funk, 2 Met. (Kv.) 544 (18.-9) ; StozvcH V. Chamberlain, 60 
 N. Y. 272 (1875) ; Detrick v. Sha rrar, 95 ^^ ^t.\2i (1880) ; Kirsch v. Kirsch, 
 in Cal. 56, 46'Pac". 164 '(i'i()6)-rrerre' Haufe &■ I. R. Co. v. State, 159 Ind. 
 45S, 65 N. E. 401 (1902) ; Duke v. Postal Tel. Cable Co., 71 S. Car. 95, 50 
 S. E. 675 (1904). A judgment is not available as an estoppel unless upon the 
 merits, that is, "When it amounts to a declaration of the law as to the 
 respective rights and duties of the parties, based upon the ultimate fact or 
 state of facts disclosed by the pleadings and evidence and upon which the 
 right of recovery depends, irrespective of formal, technical or dilatory objec- 
 tions or contentions." Black on Judgments, § 694- Compare (on the merits) 
 Livennore V. Herschell, 3 Pick. (Mass.) 33 (1825) ; Stafford v. Clark, i Car. 
 & P. 403 (1824) ; Hamilton B. Assn. V. Reynolds, 5 Duer 671, 12 N. Y. Super. 
 Ct. 671 (1856) ; FollansbrP v. Walker lA Pn St -^o o (1873) ; Davie v. Davis, 
 108 N. Car. 501, 13 S. E. 240, 23 Am. St. 71 (1891) ; BcsecJier Y. .Ehyya 176 
 Pa. St. 23, 34 Atl. 926 (1896) ; Lusk v. Chicago, 211 111. 183, 71 N. E. 878 
 (T904Tr7» re Ward's Estate, 152 Mich. 218, 116 N. W. 23 (1908) ; Everett 
 V. Williams, 152 N. Car. 117, 67 S. E. 265 (1910), with (not on the merits) 
 Hitchin V. Campbell, 2 Wm. Bl. 827 (1771) ; Leonard v . LcoaflrdUl-JWattsjS: 
 S (Pa,) 342 (1841) ; Carmonv v. Hoo beji^S, Pa, St. 3a5-Ci847) ; Brackett v. 
 fTmfiT^o N. H. 257 (1850); Hurst v. Means, 2 Sneed (Tenn.) 546 (1855) ; 
 Correia V. Supreme Lodge, 218 :Mass. 305, 105 N. E. 977 (1914) ; Witcher v. 
 Oldham, 4 Sneed (Tenn.) 220 (1856) ; Gage v. Holmes, 78 Mass. (12 Gray) 
 428 (1859) ; Reynolds v. Lincoln, 71 Cal. 183, 9 Pac. 176, 12 Pac. 449 (1886) ; 
 IJAruilryvJ^oJjjuan, T44 Pa. St. 489, 22 Atl. 919 (1891) ; Meredith Mechanic 
 Assn7v7~^ierican Twist Drill Co., 67 N. H. 450, 39 Atl. 330 (1893) ; Huffman 
 V. Knight, 36 Ore. 581, 60 Pac. 207 (1900); Reid v. Caldwell, 114 Ga. 676, 
 40 S. E. 712 (1901) ; Johnson v. Amberson, 140 Ala. 342, 37 So. 273 (1903) ; 
 Chicago Traction Co. v. Winslow, 216 III. 166, 74 N. E. 815 (1905) : Mulcahy 
 V. Dicudoune, 103 Minn. 352, 115 N. W. 636 (1908) ; Conant v. Boston Cham- 
 ber of Commerce, 201 Afass. 479, 87 N. E. 906 (1909) ; Clark v. Scovill, 198 N. 
 Y. 279, 91 X. E. 800 (1910) ; McDonald v. Hygcnic Ice Co., 148 App. Div. 
 (N. Y.) 539 132 N. Y. S. 857 ; Barrentine v. Henry Wrape Co., II3 Ark. 196, 167 
 S. W. 1115 (1914); Bax)er v. Buchhoh-Hill E. Transp. Co., 227 U. S. 637 
 57 L. ed. 681 (1913); Means v. Hoar, no Maine 409, 86 Atl. 772 (1913) ; 
 Smith V. ArjHsirong, 125 :Minn. 59, 145 N. W. 617 (1914) ; Epstein v. Soskin, 
 85 Misc. 194, 14S N. Y. S. 323 C1914). An infant, prevailing on the plea of 
 infanc\', in an action on a promissory note, given by him for a chattel which
 
 LITCHFIELD V. GOODNOW 609 
 
 LITCHFIELD v. GOODNOW 
 
 Supreme Court of the United States, 1887 
 
 123 U. S. 549 
 
 This suit was brought by Edward K. Goodnow, assignee of the 
 Iowa Homestead Company, in his hfetime, against Grace H. Litch- 
 field, in her Hfetime, to recover the amount of taxes for the years 
 1864 to 1 87 1, both inclusive, paid by the Homestead Company on 
 certain tracts of Des Moines river lands held and owned by her, by 
 and through conveyances from the Des Moines Navigation and 
 Railroad Company. For a general statement of the facts reference 
 is made to Stryker v. Crane, 123 U. S. 527. The taxes were paid be- 
 fore the decree in Homestead Co. v. Valley R. Co., 17 Wall, (U. S.) 
 153, and the assignment was made to Goodnow afterwards. As de- 
 fenses to the action, the prior adjudication in that case was pleaded 
 in bar, and also the statute of limitations based on the decision as 
 to title in Wolcott v. Des Moines Co., 5 Wall. (U. S.) 681, the same 
 as in Stryker v. Crane. 
 
 Both these defenses were overruled by the Supreme Court of the 
 state, and judgment was entered in that court for the amount of 
 taxes paid and interest. Goodnozv v. Litchfield, 63 Iowa 275. The 
 defendant brought error.^° 
 
 Waite, C. J. : The defense of prior adjudication is disposed of 
 by the fact that Mrs. Litchfield was not a party to the suit in which 
 the adjudication relied on was had. At the time of the commence- 
 ment of the suit she was the owner of her lands, and they were de- 
 scribed in the bill, but neither she or any one who represented her 
 title was named as a defendant. She interested herself in securing 
 a favorable decision of the question involved as far as they were 
 applicable to her own interests, and paid part of the expenses ; but 
 there was nothing to bind her by the decision.^^ If it had been ad- 
 he had obtained by fraud and refused to deliver on demand, was held liable 
 in an action of tort for the conversion of the chattel. Walker v. Davis, 67 
 Mass. (i Gray) 506 (1854). But where a plaintiff has an election either to 
 sue on an express contract or to treat that contract as rescinded and to sue on 
 an implied contract, then, when the election has been made and the suit pro- 
 ceeds to judgment on the merits, such judgment is a bar to an action upon 
 the other theory. Macder v. Wexler, 98 N. Y. App. Div. 68 (1904). So also, 
 where there is an election between tort and contract, Burnett v. Smith, 70 
 Mass. C1855) ; Roberts v. Moss, 32 Ky. L. R. 525 (1907). 
 
 *"The statement of facts is from the opinion of the court. 
 
 *^But compare: Weld v. Clarke, 209 Mass. 9, 95 N. E. 651 (1911) ; Hos- 
 _tct t_er V. Pittsburgh, I07 Pa. St. 410. (1 884) ; Burns v. Gavin, 118 Ind. 320, 20 
 N. E. 799 ( !»«»;• Koby V. hggers,' 130 Ind. 415, 29 N. E. 365 (1891) ; 
 Lightcap v. Bradley, 186 III. 510, 58 N. E. 221 (1900) ; Confectioners 
 Mach. &c. Co. V. Racine Engine &c. Co., 163 Fed. 914 (1908) ; Ramsey v. 
 Wilson, 52 Wash, in, 100 Pac. 177 (1909) ; Lambcrton v. Dinsmore, 75 N. H. 
 574, 78 Atl. 620 (1910) ; Ward v. Clendenning, 245 111. 206, 91 N. fe. 1028 
 (1910) ; Bemis Car Box Co. v. /. G. Brill Co., 200 Fed. 749 (1912) ; Heavrin 
 V. Lack Malleable Iron Co., 153 Ky. 329, 155 S. W. 729 (1913) ; Singer Mfg. 
 Co. V. Cramer, 109 Fed. 652 (1901). 
 
 39 — Civ. Prog.
 
 6lO JUDGMENT 
 
 verse to her interest, no decree could have been entered agahist her 
 personally cither for the lands or the taxes. Her lands were entirely 
 separate and distinct from those of the actual parties. A decree in 
 favor of or ajj^ainst them and their title was in no legal sense a decree 
 in favor of or against her. She was indirectly interested in the re- 
 sult, but not directly. As the questions alTecting her own title and 
 her own liability for taxes were similar to those involved in the suit, 
 the decision could be used as a judicial precedent in a proceeding 
 against her, but not as a judgment binding on her and conclusive as 
 to her rights. Her rights were similar to, but not identical with, 
 those of the persons who were actually parties to the litigation. 
 
 Greenleaf, in his Treatise on the Law of Evidence, vol. i, section 
 523, states the rule applicable to this class of cases tints: "Under 
 the term parties in this connection, the law includes all who are 
 directly interested in the subject xnatter, and had a right to make a 
 defense, or to control the proceedings, and to appeal from the judg- 
 ment. This right involves also the right to adduce testimony, and 
 to cross-examine the witnesses adduced on the other side. Persons 
 not having these rights are regarded as strangers to the cause. But 
 to give full effect to the principle by which parties are held bound 
 by a judgment, all persons who are represented by the parties and 
 claim imder them, or in privity with them, are equally concluded by 
 the same proceedings. We have already seen that the term privity 
 denotes mutual or successive relationship to the same rights of prop- 
 erty. The ground therefore, upon which persons standing in this 
 relation to the litigating party are bound by the proceedings to which 
 he was a party is, that they are identified with him in interest ; and 
 whenever this identity is found to exist, all are alike concluded. 
 Hence, all privies, whether in estate, in blood, or in law, are estopped 
 from litigating that which is conclusive on him with whom they are 
 in privity." The correctness of this statement has been often affirmed 
 by this court; Lovejoy v. Murray, 3 Wall. (U. S.) i, 19; Robbins v. 
 Chicago City, 4 Wall. (U. S.) 657, 673; and the principle has JDcen 
 recognized in many cases. Indeed, it is elementary. Hale v. Finch, 
 10 U. S. 261, 265 ; Brooklyn City, etc., R. Co. v. Nat. Bank, 102 U. S. 
 14, 22; Bntterfield v. Smith, loi U. S. 570.^- 
 
 In the condition of parties to the record during the whole course 
 of the litigation between the Homestead Company and those who 
 were nam.ed as defendants, Mrs. Litchfield had no right to make a 
 defense in her own name, neither could she control the proceedings, 
 nor appeal from the decree. She could not in her own right adduce 
 
 •^Accord: Hunt v. Haven, 52 N. H. 162 (1872) ; Buchingham v. Ludlunt, 
 37 X. J. Eq. 137 (1883) ; McDonald & Co. v. Gregory, 41 Iowa 513 (1875) ; 
 Hart V. Moulton, 104 Wis. 349, 80 N. W. 599, 76 Am. St. 881 (1899) ; Smith 
 V. Kessler, 22 Idaho 589, 127 Pac. 172 (1912) ; Foster v. Earl of Derby, i Ad. 
 & El. 783.(1834) ; Co. Litt. 352b. "It is well understood, though not usually 
 stated in express terms in works upon the subject, that no one is privy to a 
 judgment whose succession to the rights of property thereby affected occurred 
 previously to the institution of suit." Freeman on Judgments, § 162; Sampson 
 V. Oldever, 22 Cal. 200 (1863) ; Moreland v. H C. Prick Coke _£.o.^ 170 Pa. St. 
 33, 32 Atl. 634 O895) ; Gage v^Parker, 178 III. 455, 53 N7 E. 317 (1899) ; 
 Riescliick v. Klingclhoefcr, cji Mo. App. 430 (igoi).
 
 LITCHFIELD V. GOODNOW 6ll 
 
 testimony or cross-examine witnesses. Neither was she identified in 
 interest with any one who was a party. She owned her lands; the 
 parties to the suit owned theirs ; her rights were all separate and dis- 
 tinct from the rest, and there was no mutvial or successive relation- 
 ship between her and the other owners. She was neither a party to 
 the suit, nor in privity with those who were parties; consequently 
 she was in law a stranger to the proceedings and in no way bound 
 thereby. As she was not bound, the Homestead Company and its 
 assigns were not. Estoppels to be good must be mutual.®^ This was 
 in effect the decision of the court below, and it was right. 
 
 It follows that there is no error in the record, and 
 
 The judgment is affirmed.®* 
 
 *'Per Alderson, B., in Petrle v. Nuitall, ii Exch. 569 (1856) : "It is 
 essential to an estoppel that it be mutual, so that the same parties or privies 
 may both be bound and take advantage of it." Brereton v. Evans, Cro. Eliz. 
 700 (1598) ; Bradford v. Bradford, 5 Conn. 127 (1823) ; Wenman v. Macken- 
 zie, 5 El. & Bl. 447 (1855) ; Simpson v. Pearson, 31 Ind. i, 99 Am. Dec. 577 
 (1869) ; Parker v. Moore, 59 N. H. 454 (1879); Chandler's Appeal, 100 Pa. 
 St. 262 (1882) ; Coney v. Harney, 53 N. J. L. 53, 20 Atl. 736 (1890) ; Buford 
 V. Adair, 43 W. Va. 211, 27 S. E. 260, 64 Am. St. 854 (1897) ; Shipman v. 
 Rollins, 98 N. Y. 311, IS Abb. N. Cas. 288 (1885) ; Walker v . Philadelphia, 
 iq; Pa. St 1 68 . 45 Atl. 657, 78 Am. St. 801 (1900) ; Pfeffer v. Kling, 58 App. 
 Div. 179, 68 N. Y. S. 641 (1901) ; Robinson & Co. v. Marr, 181 111. App. 605 
 (1913) ; Jones v. Adler, 183 Ala. 435, 62 So. Tj-j (1913) Hudkins v. Crim, 72 
 W. Va. 418, 78 S. E. 1043 (1913). 
 
 "Accord: Lo-wher v. Bcaiichamp, 2 Harr. (Del.) 139 (1836) ; Burhans v. 
 Van Zandt, 7 N. Y. 523 (1852) ; Hale v. Chandler, 3 Mich. 531 (1855) ; Queen 
 V. Hartington, 4 El. & Bl. 780 (1855) ; Chase v. Szvain, 9 Cal. 130 (1858) ; 
 Spencer v. Williams, L. R. 2 P. & D. 230 (1871) ; Hill v. Stevenson, 63 
 Maine 364 (1873); Day v. Combination Rubber Co., 2 Fed. 570 (1880); 
 
 Rittist>aiiah v. L ev.%s, 10?, Pa. SL I CJ883) ; De Mora v. Concha, 
 
 LT R. 29 Ch. Div. 268 (1885) ; Stnrbridge v. Franklin, 160 Mass 149, 35 
 N. E. 669 (1893) ; Ransom v. Brinkerhoff, 56 N. J. Eq. 149, 38 Atl. 919 
 
 (1897) ; Louisville & N. R. Co. v. Brinkerhoff, 119 Ala. 606, 24 So. 892 
 
 (1898) ; Owingsville &c. T. Co. v. Hamilton, 53 S. W. 5, 21 Ky. L. 815, 5 S. W. 
 175, 21 Ky. L. 1150 (1899) ; Reynolds v. Aetna L. I. Co., 160 N. Y. 635, 55 
 N. E. 305 (1899) ; Harris v. Columbia Water & L. Co., 114 Tenn. 328, 85 
 S. W. 897 (1904) ; Fowler v. Stebbins, 136 Fed. 365 (1905) ; Ingersoll v. Coram, 
 211 U. S. 335, 52 L. ed. 208 (1908) ; International Forwarding Co. v. Rosati, 
 156 111. App. 339 (1910) ; Kowal v. Lehrman, 144 App. Div. 219, 128 N. Y. S. 
 968 (1911) ; Mcrriam v. Saal field, 190 Fed. 927 (1911) ; Fkrhg rt v Ftpnr, gi^ 
 Pa. Super. C t. 39 (T9T2) ; Feldkamp v. Ernst, 177 Mich. 550, 143 N. W. 887 
 (1913) ; Helm v. Zarecor, 213 Fed. 648 (1913). The judgment is conclusive 
 upon the real party in interest and not upon a merely nominal or formal party 
 having no interest or duty in the subject-matter of the litigation. Rogers v. 
 Haines, 3 Greenl. (Maine) 362 (1825); Peterson v. Lothro p, 34 Pa. St. 223 
 (1859); Fatist v. Baiimgartncr, 113 Ind.T39, 15 JM. E. zZJ'X'^^VrCUizenf 
 Bank V. Miller, 45 La. Ann. 493, 12 So. 516 (1893) ; Cheney v. Patton, 144 111. 
 373. 34 N. E. 416 (1893) ; Curtis v. Bradley, 65 Conn. 99, 31 Atl. 591, 28 L. R. 
 A. 143, 48 Am. St. 177 (1894) ; United States v. Des Moines Valley R. Co., 
 84 Fed. 40 (1897) ; Malay v. Duden, 86 Fed. 402 (1898) ; Keller v. Mount 
 Vernon, 23 App. Div. 46, 48 N. Y. S. 370 (1897) ; Ransom v. Pierre, loi Fed. 
 665 (1900). One not a party may be bound if he actually submits to the con- 
 sideration of the court his claim or interest in the subject of the action. 
 Sevey v. Chick, 13 Maine 141 (1836) ; Conant v. Jones, 50 App. Div. 336 64 
 N. Y. S. 189 (1900) ; Nash v. D'Arcy, 183 Mass. 30, 66 N. E. 606 (1903) ; 
 Lake v. Weaver, 80 N. J. Eq. 395, 86 Atl. 817 (1912).
 
 6l2 JUIX.MKNT 
 
 Kir :•. BRIGHAM 
 
 Supreme Court of Nfav York, iSio 
 6 Joints. (N. Y.) 158 
 
 This was an action brought by the plaintiff, as sheriff of the 
 county of Oneida, against the defendants, on a bond given as se- 
 curity for the gaol liberties, granted to the defendant, Abel Brig- 
 ham,\vho had been arrested and imprisoned on a ca. sa. in favor of 
 John Bissell. 
 
 At the trial, the plaintiff gave in evidence, the record of a re- 
 covery against him, in favor of Bissell, for tlie escape of the defend- 
 ant Brigham ; that immediately after suit was commenced against 
 the plaintiff, he gave notice thereof to the defendants, and the suit 
 was regularly defended by the plaintiff, aided by the active co- 
 operation of the defendant's counsel. The judge ruled, that the rec- 
 ord of the recovery in that suit was conclusive against the defendants 
 in this suit, unless they could show fraud or collusion between the 
 plaintiff and Bissell ; and he rejected evidence offered by the defend- 
 ants, to controvert the fact of the escape. A verdict was accordingly 
 found for tlie plaintiff. 
 
 A motion was made to set aside the verdict; and the question 
 submitted to the court was, whether the opinion of the judge was 
 correct. 
 
 Per Curiam : There was no misdirection on this point. The 
 case of Blasdale v. Bahcock, i Johns. (N. Y.) 517 shows that the 
 record was evidence, in this case, for the plaintiff; and as the bond, 
 on which the suit was brought, was, in effect, a bond of indemnity, 
 the recovery, after notice to the defendants, and their assuming the 
 defense, was conclusive, that the plaintiff had been damnified to 
 that extent. The case of Diiffield v. Scott, 3 Term Rep. 374, is to 
 this point; and the present is a stronger case, because here the de- 
 fendants assumed upon themselves the defense of the suit, and 
 became essentially parties. The case of principal and surety is said 
 Pothier, Traite des Obligations, part 4, ch. 3, section 61, not to come 
 within the rule of res inter alios acta. The case o f Bande r v. Frem- 
 berper, 4'Da.\\. (Pa.) 436 , is also a strong authority in support of the 
 opinion given upon thel;rial. The suit there was on the covenant 
 of warranty in a deed; and to show a breach, the plaintiff gave in 
 evidence a recovery against him in ejectment, by a third person, 
 and tliat the defendants had notice of this ejectment, and took part 
 in the defense. The defendant then offered to controvert the title 
 of that third person, and that he conveyed good title to the plaintiffs ; 
 but the court held the evidence inadmissible. The same rule was laid 
 down in the case of Hamilton v. Oitts. 4 Tyng (Mass.) 349. The] 
 motion to set aside the verdict is therefore denied. 
 
 Motion denied.^^ 
 
 "The general rule is that one responsible over to another, who has been 
 notified of a suit against the person he is bound by law, or by agreement, to
 
 KIP V. BRIGHAM 613 
 
 indemnify, and who has had an opportunity to appear and defend, is con- 
 ckided by the judgment. Freeman on Judgments, § 181 ; Hamilton v. Cutis, 
 4 Mass. 349, 3 Am. Dec. 222 (1808) ; Kip v. Bingham, 7 Johns. (N. Y.) 168 
 (1810); Clarke v. Carrington, 7 Cranch (U. S.) 308, 3 L. ed. 354 (1813) ; 
 Barney V. Dczvcy, 13 Johns. (N. Y.) 224, 7 Am. Dec. 372 (1816) ; Brown Co. 
 V. Butt, 2 Ohio 348 (1826) ; Pope v. Nance, I Stew. (Ala.) 354. 18 Am. Dec. 
 60 (1828) ; Mpl,nffv_v_J.ytle, T Watts CPaJ)_2i4(i833) ; Walker v. Ferrin, 
 
 4 Vt. 523 (iSJiytllo ydv. Barr, 1 1 Pa. St. 41 (j849) ; Bullock v. Winter, 10 
 Ga. 214 (1851) ; CKicago & NTW.l^To. v. Northern Line Packet Co., 70 111. 
 217 (1873) • Washington Gaslight Co. v. District of Coliimhia, 161 U. S. 316, 
 40 L. ed. 712, 16 Sup. Ct. 564 (1895) ; Dcmpsey v. Schawacker, 140 Mo. 680, 38 
 S. W. 954, 41 S. W. iioo (1897) \JPo]£lcrv^JS T.^^y ^jl'^^i^ ^^^F^ :. ^"pgr- Ct. 366 
 (1901); Prescott V. LeConte, ^:i AppT TJrvT^fe, 82 N. Y. S."4il O903I ; 
 Rowell V. Smith, 123 Wis. 510, 102 N. W. I (1905) ;jKoch v. Hinkle, 35 Pa. 
 SuEer.JX42j (1908) ; May v. Poluhoff, 65 Misc. 546, i2bTnrrSrS27Crgio)l 
 American Surety Co. of Nezv York v. Sandberg, 225 Fed. 150 (1915)- The 
 decisions of different courts are not uniform upon the requirements o£ the 
 notice to be given to the indemnitor. It need not be in writing. Ferrea V. 
 Chabot, 63 Cal. 564 (1883) ; Miner v. Clark, 13 Wend. (N. Y.) 425 (1836) ; 
 Somers v. Schmidt, 24 Wis. 417, i Am. Rep. 191 (1869). The party against 
 whom ultimate, liability is claimed must be fully and fairly informed that the 
 action is pending, with full opportunity to defend or participate in the defense. 
 If he then neglects, or refuses to make any defense he may have, the judg- 
 ment will conclude him. Oceanic Steam Nav. Co. v. Campania T. E., 144 
 N. Y. 663, 39 N. E. 360 (1895) ; Consolidated Hand-Method Lasting Mack. 
 Co. V. Bradley, 171 Mass. 127, 50 N. E. 464, 68 Am. St. 409 (1898) ; Shrews- 
 bury V. Boylston,.! Pick. (Mass.) 103 (1822) ; Jacob v. Pierc e, 2 Rawle (Pa .) 
 204 (1828) ; Stephens v. Jack, 3 Yerg. (Tenn.) 403, 24 Am. 'Dec. 583 (1832) ; 
 Bramble v. Poultney, li Vt. 208 (1839) ; Brown v. Chancy, I Ga. 410 (1846) ; 
 Hardy V. Nelson, 27 Maine 525 (1847) ; Pif tshnrnh, C fi- S t T. R Co. v. 
 Mnr<;J,n]J^ ^c^ P^ ,9t, T'^7 (^^7?^ ', Lamar Ins. Co. v. Pennell, 19 111. App. 2I2^ 
 (^885) ; Richmond v. Ames, 164 Mass. 467, 41 N. E. 671 (1895) ; The Chesa- 
 peake L. & T. Co. V. Western Assur. Co., 99 Md. 433, 58 Atl. 16 (1904)- 
 The appearance of the indemnitor in defense of the suit is evidence that he 
 had notice. Harding v. Larkin, 41 111. 413 (1866) ; In re Alexander's Esta te, 
 21 4 Pa. 369, 63 Atl. 799 (1906). But one is not bound if it appears that the 
 deiendant m the first action refused to permit him to become a party on the 
 record, or to participate in the trial or to perfect an appeal from the judgment. 
 Fi fth Muf Rldrr Society V Holt, 184 Pa. S t. 572, 39 Atl. 293 (1898). 
 
 One who, to protect himself from liability on the covenants in a lease, 
 actively conducts the defense in an action against his tenant to recover pos- 
 session and for use and occupation, employing counsel and paying costs, is 
 estopped from questioning the validity of a judgment obtained in such action 
 against his tenant. But he can not be compelled to pay the plaintiff in such 
 action the damages awarded. His liability is to his tenant and covenantee only. 
 Hendricks v. Dean, 103 Minn. 162, 117 N. W, 426 (1908).
 
 6i4 jrix;Mi:NT 
 
 GIBSON r. LICDWTTCII 
 Supreme Court of Kansas. 191 i 
 
 84 Kiins. 505 
 
 Johnson, C. J.: This was an action to foreclose a mortgage 
 executed by Thomas F. Ledwitch to F.. Hehker, as trustee for A. C. 
 Wilcox, who assigned it to Charles E. Gibson. It recited that "the 
 said Thomas F. Ledwitch is indebted to A. C. Wilcox, five hundred 
 dollars, evidenced by one promissory note of even date herewith, 
 executed by said Thomas F. Ledwitch, payable to the order of A. C. 
 Wilcox." It also stipulated that if default should he made in 
 payment of either the note or the interest coupons, or in procuring 
 insurance, or in paying taxes, the whole debt should become due 
 at the option of tli'e owner, and that a foreclosure suit might be 
 instituted at once. It was also agreed that if there was a default of 
 payment of any sum for thirty days the mortgagor would be required 
 to pay to the owner of the note interest at the rate of twelve per 
 cent, per annum from the date of the note to the time of actual 
 payment. The only duty devolving on the trustee, by the terms of 
 tlie mortgage, was that he was authorized by the mortgagor "to pay 
 all liens of any kind, eitlier prior or subsequent, that may in any 
 manner affect the title to the land herein conveyed," etc. There was 
 no appearance by any of the defendants in the foreclosure action, 
 except J. K. Flitch, who set up as a defense tliat in a former action 
 against E. Heliker, trustee, as defendant, a judgment was rendered 
 by default quieting the title of the land in Hitch. In that action it 
 appears that Heliker was served by publication, and that Wilcox, 
 the payee and owner of the note, was not made a party. In the 
 present action the trial court held that the former decree, quieting 
 title in Hitch, was a bar to the maintenance of the action of fore- 
 closure by Wilcox's assignee, and from this decree the plaintiff 
 appeals. 
 
 The only question for decision is whether the judgment quieting 
 title in Hitch is binding on Wilcox and his assignee, and is a bar 
 to the action of foreclosure. The instrument in suit is conceded to be 
 a mortgage — a mere incident to the debt which it secures. It is nqt 
 a trust deed, and by it nothing is conveyed to the trustee. He is 
 named as trustee, but it seems that he bears only a nominal relation 
 to the security. The debt is not payable to him, the option to declare 
 the debt due upon default in any of the conditions does not rest with 
 him, he has no authority to transfer the mortgage or to foreclose 
 it and is given no control whatever over the mortgage relations. He 
 is a trustee in name, witliout powers or duties in respect to the mort- 
 gage relations, and manifestly is without authority to represent the 
 owner of the debt v/hich the mortgage secures. Even when a trustee 
 has an interest, and is vested with powers and duties over the mort- 
 gage relations, it is generally deemed necessary to make the trustee 
 and beneficiar}-^ parties to a foreclosure action. It has been said:
 
 GIBSON V. LEDWITCH 615 
 
 "The general rule is that, in all proceedings affecting the trust 
 estate, whether brought by or against third persons, the trustee and 
 cestui que trust are so far independent of each other tliat the latter 
 must be made a party to the suit in order to be bound by the judg- 
 ment or decree rendered therein." 23 Cyc. 1246. See also 2 Black. 
 Judg. (2d ed.) section 585; 2 Perry Trusts section 873; Wiltsie 
 Mort. Forecl. section 112. 
 
 In Hutchinson v. Myers, 52 Kans. 290, where a mortgage in 
 which a trustee was named as second party and occupied a position 
 similar to the nominal trustee in the mortgage in this case was 
 involved, it was held that the beneficiary or creditor alone could 
 maintain an action to foreclose in his own name. It was easy to 
 imagine a case of a trustee vested with powers and duties as to the 
 mortgage relations, and clothed with authority to represent the 
 beneficiary in the collection of the mortgage debt, the foreclosure of 
 the mortgage and the protection of the security from the attacks of 
 third parties, where a judgment against the trustee might be binding 
 on the beneficiary. Swcnney v. Hill, 65 Kans. 826. 
 
 In Kerrison v. Stewart, 93 U. S. 155, it was said: "It can not 
 be doubted that, under some circumstances, a trustee may represent 
 his beneficiaries in all things relating to their common interest in the 
 trust property. He may be invested with such powers and subjected 
 to such obligations that those for whom he holds will be bound by 
 what is done against him, as well as what is done by him. The diffi- 
 culty lies in ascertaining whether he occupies such a position, not 
 in determining its effect if he does. If he has been made such a rep- 
 resentative, it is well settled that his beneficiaries are not necessary 
 parties to a suit by him against a stranger to enforce the trust.^^ 
 
 *'The opinion (per Waite, C. J.), continues: "If he has been made such 
 a representative, it is _ well settled that his beneficiaries are not necessary- 
 parties to a suit by liim against a stranger to enforce the trust. Shaw v. 
 Norfolk Co. R. Co., 5 Gray (Mass.) 162 (1855) ; Bifield v. Taylor, I Beat. 91 
 (1828); Campbell V. Texas & New Orleans R. Co., Fed. Cas. No. 2366, 
 I Woods (U. S. C. C.) 368 (1871) ; Ashton v. Atlantic Bank, 3 Allen (Mass.) 
 220 (1861) ; or to one by a stranger against him to defeat it in whole or in part. 
 Rogers v. Rogers, 3 Paige (N. Y.) 379 (1832) ; Wakeman v. Grover, 4 Paige 
 (N. Y.) 23 (1832) ; Winslow v. Minn. R. Co., 4 Minn. 313 (Gil. 230), 77 Am. 
 Dec. 519 (i860) ; Campbell v. Watson, 8 Ohio 499 (1838). In such cases, the 
 trustee is in court for and on behalf of the beneficiaries ; and they, though not 
 parties, are bound by the judgment, unless it is impeached for fraud or collu- 
 sion between him and the adverse party." Vetterlein v. Barnes, 124 U. S. 169, 
 8 S. Ct. 441, 31 L. ed. 400 (1888) ; Robertson v. Van Cleave, 129 Ind. 217, 26 
 N. E. 899, 29 N. E. 781, IS L. R. A. 68 (1891) ; Cooky v. Kelley, 52 Ind. App. 
 687, 98 N. E. 653,96 N. E. 638 (1911). The principle has frequently been 
 applied in proceedings relating to mortgages where a trustee holds the title 
 for the benefit of bondholders. Corcoran v. Chesapeake & O. Canal Co., 94 
 U. S. 741, 24 L. ed. 190 (1867) ; Shaw v. Railroad Co., 100 U. S. 605, 25 L. ed. 
 757 (1879) ; Chicago & Great Western Railroad Land Co. v. Peck, 112 111. 
 408 (1885) ; Beats v. ///. Cent. R. Co., 133 U. S. 290, 3^ L. ed. 608, 10 Sup. Ct. 
 314 (1880) ; Toler v. East Tennessee &c. R. Co., 67 Fed. 168 (1894) ; Woods v. 
 Woodson, 100 Fed. 515 (1900) ; Grant v. Winona & S. R. Co., 85 Minn. 422, 
 89 N. W. 60 (1902). Contra: Davis v. Hemingway, 29 Vt. 438 (1857); 
 Raphael v. Wasatch &c. Co., 201 Fed. 854 (1912) ; Tyson v. Applegate, 40 
 N. J. Eq. 305 (1885). For England, see rules of Supreme Court, order 16, 
 rule 8. Francis V. Harrison, L. R, 43 Ch. Div. 183 (1889) ; In re Mitchell, 65 
 L. T. 851 (1892).
 
 6i6 JUDGMF.N'T 
 
 lloro the trustee has no beneficial interest in the mortg^age, he 
 was vested with no power or control as to either the debt or the 
 security and was clothed with no authority to represent the creditor 
 as to the niorl,i;ai;e or the mort.i^nge lien, and unless the creditor is 
 himself brous^iit into litigation the judgment can not operate as an 
 estoppel against him. Notliing done by or against the nominal 
 trustee, in an action to which the owner of the note and mortgage 
 was not a party, could operate to bind the latter, and the judgment 
 relied on by the appellees was no defense or bar to the maintenance 
 of the foreclosure action. 
 
 It follows that the judgment of the district court must be re- 
 versed and the cause remanded for further proceedings.*"' 
 
 "One not a r^rty will be concluded by a judgment in a suit if repre- 
 sented bv a partv Iccallv entitled to represent him. Stout V. Lye, 103 U. S. 66, 
 26 L. ed. 4-;S (I'SSo) ; Grcrn v. Poguc, 158 U. S. 478, 39 L. cd. 1061, 15 Sup. 
 Ct. 975 (1894). As applied to trusts, "a suit to obtain or defend possession p£ 
 property belonging to trustees, or claimed to belonp; to them, is readily dis- 
 tinguishable from one concerning the execution of the trust, where there are 
 often various and conflicting interests between the different cestui que trust." 
 Jezi'ctt V. Tucker, 139 AIass.^566, 2 N. E. 680 (1885). At law, in matters affect- 
 ing the trust estate the trustee, invested with the legal title, sues in his own 
 name, McRacnv v. Johnson, 2 Fla. 520 (1849) ; Parsons v. Boyd, 20 Ala. 112 
 (1852) ; Presley v. Stribling, 24 Miss. 527 (1852) ; Pcnna. K. Co. v. Duncan, 
 iiTPa. St. 352, 5 Atl. 742 (l886) ; Barker v. Furlong, L. R. 2 Ch. Div. 172 
 (1891), and the beneficiaries will be concluded by the judgment, although 
 thev mav have a remedy against the trustee if he fails in his duty. Clark v. 
 Flanner'v, 99 Ga. 239, 25 S. E. 312 (1896); Boyden V. Partridge, 68 Alass. 
 (2 Gray) 190 (1854); Miller V. Butler, 121 Ga. 758, 49 S. E. 754 (1904); 
 Cooley'w. Kelley, 52 Ind. App. 687, 96 N. E. 638, 98 N. E. 653 (iQiO- 
 
 In equity, the general rule is that all persons interested in the_ subject- 
 matter of tlie suit must be made parties, if the same is to affect their rights, 
 and this rule requires that in litigation respecting trust property both trustee 
 and cestui que trust be made parties. Kirk V. Clarke, 2 Eq. Ga. Abr. 165 
 (1708) ; s. c. Prec. Ch. 27s; Bifield v. Taylor, i l\Ioll. 193, I Beat. 91 (1828) ; 
 Collins V. Lofftiis, 10 Leigh. (Va.) 5, 34 Am. Dec. 719 (1839); Stilkvell v. 
 McNeely, 2 N. J. Eq. 305 (1840) ; Mathczvs v. Stebhen son. 6 Pa. St. 406^ 
 (1847); Dunn V. Seymour, li N. T Fg. o?n (f?,'.e>^-^chollv. Sclwener. 1 
 j ^Vnnftw X£aJ- ,200 (1S62); Spragtic V. Tyson, 44 Ala. 338 (1870) ; Day v. 
 Wetherhy, 29 \Vls. 3O3 (.i»72') ; PoUerjulLoMiii , 10 Ph ila, (Pa ) ^96, 32-I*eg- 
 Int. 66 (1875) ; Trustees of the Internal Improvement Fund v. Gleason, 15 Fla. 
 384 (1875) ; Scanlon v. Cobb, 85 111. 296 (1877) ; Rembcrt v. Key, 58 Miss. 533 
 (1880) ; Hill V. Durand, 50 Wis. 3^4, 7 N. W. 243 (1880) ; Lehigh C. & N. 
 (2£L^y Appml, 88E a^ St. 4 09 ^T -Syol; Bank V. Crafts, 145 Mass. 444 (1888) ; " 
 Zehnbar V. Spillman, 25 Fla. 591, 6 So. 214 (1889) ; Kevitt v. Woodhurn, 82 
 111. App. 649 (1898), reversed 190 111. 283, 60 N. E. 500; Wilcox v. Mann, 115 
 Iowa 91, 87 N. W. 748 (1901) ; Pyle v. Henderson, 55 W. Va. 122, 46 S. E. 
 791 (1904). The modem tendency is to limit this rule to cases where the rela- 
 tions between trustee and beneficiary are material or where the power of the 
 trustee to bind or control the property is in question. McGrazv v. Bayard, 96 
 111. 146 C1880); Northampton Nat. Bank v. Crafts, 145 Mass. 444, 14 N. E. 
 758 (1888); General F. F. Co. v. Lundell, 66 111. App. 140 (1895); In re 
 Tucker, 153 Fed. 91 (1906). And, ordinarily, the beneficiaries are represented 
 by the trustee where the trust is an active one, imposing upon the trustee the 
 duty of receiving, controlling and managing the trust fund for the benefit of 
 the ce.<!tiii que trust. Willis v. Henderson, 5 111. 13 (1842) ; Carey v. Brown, 
 92 U. S. 171, 23 L. ed. 469 (1875') ; Ames' Cases on Trusts (2d ed.) 260, note; 
 Van Bokkclen v. Tinges, 58 Md. 53 (1881) ; Smith v. Portland, 30 Fed. 734 
 (1887) ; Warren v. Howard, 99 N. Car. 190, 5 S. E. 424 (1888) ; Vetterlein v. 
 Barnes, 124 U. S. 169, 31 L. ed. 400, 8 Sup. Ct. 441 (1888) ; In re Estate of
 
 SINGER V. HUTCHINSON 617 
 
 SINGER V. HUTCHINSON 
 
 Supreme Court of Illinois, 1900 
 
 183 ///. 606 
 
 This is an appeal from a judgment of the appellate court affirm- 
 ing a decree rendered on a creditor's bill filed by appellees January 
 7, 1898, against the Singer &: Talcott Stone Company and others, as 
 defendants, to reach the assets of the Singer & Talcott Stone Com- 
 pany in the possession of the defendants, as stockholders. Edward 
 T. Singer, Charles G. Singer, Walter Singer, Harriet A. Singer, 
 Charles B. Kimball, Spencer Kimball and the Singer & Talcott Com- 
 pany were made defendants to the bill. 
 
 The evidence showed that June 12, 1897, a judgment was ren- 
 dered in the Superior Court of Cook County in a suit at law 
 brought January 21, 1893, in which appellees were plaintiffs and 
 the Singer & Talcott Stone Company was defendant, in favor of 
 appellees, for the sum of $15,496.33 and costs; that August 10, 
 1897, an execution was issued on said judgment, which execution 
 was returned by the sheriff November 8, 1897, "no property found." 
 
 The defendants (appellants here) offered evidence tending to 
 show that the appellees were not entitled to recover in the action 
 at law — in other words, such evidence as might have been admis- 
 sible in that suit — which evidence the court excluded. 
 
 The decree was that the defendants Edward T. Singer and 
 Charles G. Singer and the Singer & Talcott Stone Company pay to 
 the complainants $16,639.66.^® 
 
 Craig, J. : It is first claimed by appellants in the argument that 
 the judgment recovered in the law court against the stone company 
 is not proper evidence of the existence of a claim against the cor- 
 
 Stewart, 126 N. Y. 201 (1891) ; Roberts v. New York E. R. Co., 155 N. Y. 31, 49 
 N. E. 262 (1898) ; Sanders v. Houston Guano &c. Warehouse Co., 107 Ga. 49, 
 32 S. E. 610 (1899) ; Jowa & C. I. Co. v. Hoag, 132 Cal. 227, 64 Pac. 1073 
 (1901) ; Perkins v. Burlington Land & Improvement Co., 112 Wis. 509, 
 88 N. W. 648 (1902) ; Miller v. Butler. 121 Ga. 758, 49 S. E. 754 (1904) ; 
 Felkner v. Dooly, 27 Utah 350, 75 Pac. 854 (1904) ; McDevitt v. Bryant, 104 
 Md. 187, 64 Atl. 931 (1906) ; Gould v. Soto, 14 Ariz. 558, 133 Pac. 410 (1913) ; 
 Sherman v. Goodwin, 15 Ariz. 47, 135 Pac. 719 (1913). See also N. Y. Code 
 Civ. Pro., § 449 ; Cal. Code Civ. Pro., § 369. 
 
 The beneficiary is bound where the suit is prosecuted or defended by 
 the trustee with the consent or participation of the beneficiary. Plum v. Good- 
 now, 123 U. S. 560, 31 L. ed. 268, 8 Sup. Ct. 216 (1887) ; Bracken v. Atlantic 
 Trust Co., 36 App. Div. 67, 55 N. Y. S. 506 (1899) ; Jackson v. West, 22 Tex. 
 Civ. App. 483, 54 S. W. 297 (1900) ; Glass v. Concordia, 113 La. 544, Z7 So. 
 189 (1904) ; Alexander's Estate. 21A Pa. 369;63 Atl. 799 J1906). But a judg- 
 ment against a party sued or suing as an indiviclual is'not an estoppel in a 
 subsequent action where he sues as trustee. Rathbone v. Hoonly, 58 N. Y. 
 463 (1874) ; Bakery. Small, 17 Pa. Super. Ct. 423 (1901)- So, a common-law 
 judgment against the cestui que trust does not bin'o" the trustee, he not being 
 a party. Roberts v. Yancey, 94 Ky. 243, 21 S. W. 1047, 15 Ky. L. Rep. 10, 
 42 Am, St. 357 (1893). 
 
 _ '"Only so much of the case as relates to the question of res judicata is 
 prmted.
 
 6l8 JUDGMENT 
 
 l^oratlon to chnr,c:c property in piod faith distributed to appellants, 
 they not bcinij i)artics thereto. It is well settled rule that a judg- 
 ment rendered in a court of competent jurisdiction is conclusive 
 between ]>arties and privies in rei;ard to all matters of controversy 
 determined by the judj^ment, and all persons represented by the 
 parties, both plaintill" and defendant, are bound and concluded 
 as privies by the judgment which may be rendered. It is also a well 
 settled rule that a corporation represents the stockholders in all 
 matters within the scope of its corporate powers transacted in good 
 faith by the officers of the corporation. Among the conceded powers 
 of corporations may be mentioned those of bringing and defending 
 actions in regard to the rights and obligations of the corporation. 
 Bissit V. Kcntiichy River Nav. Co., 15 Fed. 353, is an interesting case 
 on this question, where the authorities are fully cited and commented 
 upon in a note. 
 
 This was a creditor's bill by a creditor wdio had reduced his 
 claim to judgment against the Singer & Talcott Stone Company, 
 brought against the corporation and its stockholders, to reach assets 
 belonging to the corporation which had been turned over by the 
 officers of the corporation to the stockholders in fraud of tlie 
 rights of the creditors, and it is not claimed that the judgment 
 against the corporation was obtained by fraud, or that there was a 
 want of jurisdiction in the court in which the judgment was ren- 
 dered. In tlie absence of fraud in obtaining the judgment against 
 the corporation, and in the absence of a want of jurisdiction in the 
 court wherein the judgment w-as rendered, we think the judgment in 
 a case of this character was conclusive against the stockholders 
 as to the amount and validity of the claim of the creditor.®^ 
 
 Affirmed. 
 
 '"Accord: Brewer v. New Gloucester, 14 Mass. 216 (1817) ; Gaskill v. 
 Dudley, 47 Mass. (6 Mete.) 546, 39 Am. Dec. 750 (1843) I Lane v. Inhahitanis 
 of the Fourth School Disf. in Weymouth, 51 Mass. 462 (1845) ; Donworth v. 
 Coolbaugh, 5 Iowa 300 (1857) ; Milliken v. VVhitehouse, 49 Maine 527 (i860) ; 
 Wilson. McElroy & Co. \. Pittsburgh & Youphiogheny Coal Co., 43 Pa. St . 
 424 (1862 ) ; Haixjes v. Anglo-Saxon P. Co., loi Mass. 385 (1869) ; Thayer "7. 
 A'ew L'ngland L. Co., 108 ]Mass. 523 (1871) ; Hazvkins v. Glenn, 131 _U. S. 
 319, 33 L. ed. 184, 9 Sup. Ct. 739 (1S89) ; IVilloughby v. Chicago Junction R. 
 Co., 50 N. J. Eq. 656, 25 Atl. 277 (1892) ; Capita l City Mnt. F. Ins. Co. v . 
 Boggs, 172 Pa. St. 91, 33 Atl. 349 (1895); Hatfield v. Cummings, 152 Ind. 
 537. 53 JN- ^- 761 (1898) ; Welch v. Sargent, 127 Cal. 72, 59 Pac. 319 (1899) ; 
 Hancock Nat. Bank v. Farnnm, 176 U. S. 640, 44 L. ed. 619, 20 Sup. Ct. 506 
 ( 1900) ; Hearst v. Putnam Min. Co., 28 Utah 184, "jy Pac. 753, 66 L. R. A. 
 784, 107 Am. St. 608 (1904) ; Converse v. Aycr, 197 Mass. 443, 84 N. E. 98 
 (1908) ; French v. Ffardiufi^ ^^6 Pa Super. Ct. 363 (jo i^^. Contra: McMahon 
 V. Macy, 51 N. Y. 153 (1872) ; Larkin v. Hogan, 14 Ariz. 63, 126 Pac. 268 
 (1912) ; Davidson v. Real Estate & Investment Co., 249 Mo. 474, 15S S. W. I 
 (1913) ; Mister v. Thomas, 122 Md. 44^, 89 Atl. 844 (1914) ; Clarke v. Marks, 
 III Maine 218, 88 Atl. 718 (1913) ; Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. 
 554, 28 L. ed. 1038 (1884 N. Y. Lav.-) ; Wetter v. Letvis, 22 Misc. 12, 48 N. Y. 
 S. 617 (1897) ; Assets Realization Co. v. Howard, 70 ^Misc. 651, 127 N. Y. S, 
 798 (1911) ; Finney v. Guy, 106 Wis. 256, 82 N. W. 595, 49 L- R- A. 486 (1900) ; 
 Cla-.'.scn V. Head, no Wis. 405, 85 N. W. 1028, 84 Am. St. 933 (iQOi). Or at 
 least, not more than prima facie evidence. Merchants' Bank v. Chandler, 10 
 Wis. 434 (1865) ; Grund V. Tucker, 5 Kan. 70 (1869) ; Ward v. Joslin, 105 Fed. 
 224 (1900 Kans. Law). 
 
 i
 
 HARVEY V. WILDE 619 
 
 HARVEY V. WILDE. 
 Court of Chancery, 1872 
 L. R. 14 Eq. Cas. 438 
 
 This was a creditor's suit for the administration of the real 
 and personal .estate of WilHam Wilde, deceased, who by his will, 
 dated tlie 15th of February, 1865, appointed the defendants, Samuel 
 Seeker Hill and William Wilde, executors thereof; and also devised 
 certain specific real estate to them upon trust for the benefit of his 
 daughter Eliza Reilly for life, and after her death for her brothers 
 and sisters and the two sons of her deceased brother.'^" 
 
 The testator died July 28, 1866. In February, 1869, the firm of 
 Harveys & Hudsons, bankers, brought an action at law against the 
 executors for the recovery of a balance due from the testator aj; 
 the time of his death. The executors denied liability and comm.enced 
 a cross action. Under an order of court both actions were referred 
 to an arbitrator who found that the bank was entitled to recover 
 from the defendants, as executors, the sum of £5,066 los. 6d. and 
 judgment Vv"as signed for the plaintiffs June 14, 1870. 
 
 On tlie 9th of July, 1870, the decree was made in this suit in 
 the usual form, directing inquiries as to the real estate, and a sale 
 both of the residuary and of the specifically devised real estate in 
 the event of the personal estate proving insufficient for the payment 
 of the testator's debts and funeral expenses. 
 
 On the 19th of July, 1870, Sir Robert Harvey died. On the 22d 
 of July following, tiie firm of Harveys & Hudsons was adjudicated 
 bankrupt. 
 
 The personal estate of the testator proved Insufficient for pay- 
 ment of his debts, and an application was made for a sale of the 
 real estate. Thereupon the persons beneficially interested therein 
 required that the debt due to Messrs. Harveys & Hudsons should 
 be proved as against them, and the question whether they were 
 entitled to require such proof was nov/ brought before the court on 
 an adjourned summons. 
 
 Mr. Fry, O. C, and Mr. Cozens-Hardy, for the trustee in bank- 
 ruptcy, pointed out that In this case the executors were also devisees 
 in trust, and urged the hardship of requiring the debt to be estab- 
 lished a second time, the question having been decided after full hear- 
 ing, and the principal witness being now dead. 
 
 Mr. Chitty and Mr. Maidlow, for the persons interested in 
 the real estate, contended that the judgment was against the execu- 
 tors only, and could not be enforced at law against the real estate 
 of the testator; that the devisees were clearly entitled to have the 
 debt established as against them, Willson v. Leonard, 3 Beav. 373; 
 that the circumstances of the executors being devisees in trust 
 
 '"Part of the statement of facts is omitted.
 
 520 JUDGMENT 
 
 made no difTcrcncc. Morse v. Tucker. 5 Hare 79; that as to the 
 hardship alleged to be occasioned by the death of Sir R. Harvey, tlie 
 executors were at a like disadvantage before the arbitrator. 
 
 Lord Romilly, M. R. : I do not think that I can hold the 
 devisees bound by the judgment, but on a claim made in a suit 
 such as this I think I have jurisdiction to decide on which side the 
 burden of proof lies. When a creditor brings in a claim I fre- 
 quently order an action to be brought in order to decide the matter; 
 and if, after the action has been tried and decided against the 
 executor, it were necessary to have it tried over again against the 
 devisees of the real estate, the delay would be endless. I tliink, 
 therefore, that the judgment ought to be prima facie evidence of 
 the debt. The devisees will be at liberty to disprove it, if they 
 can ; but if they do not, I shall hold the debt binding against tlie real 
 estate.''^ 
 
 •^■'Between the real and personal representatives of a deceased person 
 there is no privity. Hence a judgment against an administrator or executor 
 i-; never conclusive against the heirs or devisees." Freeman on Judgments 
 (4th ed), § 163; Mason v. Peter, i Munf. (Va.) 437 (1810) ; Osgood v. 
 Manhattan Co., 3 Cow. (N. Y.) 612, 15 Am. Dec. 304 (1824); Dale v Rose- 
 z-elt 1 Paige Ch. (N. Y.) 35 (1828) ; Collinson v. Owens, 6 Gill & J. (Md.) 
 4 (1833^ ; Deneale v. Stump, 8 Pet. (U. S.) 528, 8 L. ed. 1033 (1834) ; McCoy 
 V Nichols, 4 How. (Miss.) 31 (1839) ; Thayer v. Mollis, 44 Mass. (3 Mete.) 
 369 (1841) ; Hacen v. Tillman, 5 N. J. Eq. 363 (1846) ; Stone v. ll^ood, 16 III. 
 177 (18^4) ; Nichols v. Day, 32 N. H. 133, 64 Am. Dec. 358 (1855) ; Beckett v. 
 Selozrr, 7 Cal. 215, 68 Am. Dec. 237 (1857) ; ingle v. Jones, 9 Wall. (U S.) 
 486 19 L. ed. 621 (1869) ; Sharpe v. Freeman, 45 N. Y. 802 (1871) ; Lehman 
 v Bradley, 62 Ala. 31 (1878) ; Scott v. Ware, 64 Ala. 174 (1879) ; Starke v. 
 I'nison, 65 Ala. 576 (1880) ; Charles v. Spears, 9 Lea (Tenn.) 725 (1882) ; 
 Watts V. Taylor, 80 Va. 627 (1885) ; Clark v. Bettelhcim, 144 Mo. 258, 46 S. W. 
 135 (1898) ; Eayrs v. Nason, 54 Nebr. 143, 74 N. W. 408 (1898) ; Howell v. 
 Huqhes, 168 Ala. 460, S3 So. 105 (1910). Contra, by statute, Cunningham v. 
 Ashley, 45 Cal. 485 (1873) ; Mecks v. Olphcrts, no U. S. 564, 25 L ed. 735 
 (1879 Cal. Stat.) ; Merritt v. Daffin, 24 Fla. 320, 4 So. 806 (1888) ; Texas 6- 
 P. R. Co. V. Smith, 91 Fed. 483 (1899 La. Stat.) ; Hint on v. Pntchard, 126 
 N Car. 8, 35 S. E. 127 (1900) ; Gimn v. James, 120 Ga. 482, 48 S. E. 148 
 (1904) ; Po'iset v. Townsend, 166 111. App. 384 (1911)- Conversely, a judg- 
 ment for or against an heir or devisee does not bind the admmistrator, ig 
 Iowa 269 (1865) ; Douglass v. McCarer, 80 Ind. 91 (1881) ; Forbes v. Doug- 
 lass, 175 Mass. 191, 55 N. E. 847 (1900). It is frequently said that the judg- 
 ment is prima facie evidence against the heirs or devisees. Garnett v. Macon, 
 Fed. Cas. No. 524s. 6 Call (Va.) 308, 2 Brock. (U. S.) 185 (1825) ; Sergeant 
 v, Ewina.. 36 Pa. St. 156 (i860) ; Ste ele v. Lineberger, 5 ^Pa. St. 308(1868) 
 HofMnsv^ Stoitt, 6 Bush (Ky.) 37o (1869) Gibson v. Gibson, 82 111. 61 
 (1876) ; Hobbs v. McMakin, 4 S. W. 793, 9 Ky. L. 221 (1887) ; Pauly. Grimm, 
 T«^P3_5 t 330, 3 R Atl. 1017 (1898). Contra: Robertson v. Wright, I7 Grat. 
 f\ a ) 534 (18^ ; Laidley v. Kline, 8 W. Va. 218 (1875) : Board v. Calhhan, 
 33 \V Va 209 10 S. E. 382 (1889) ; Burnham v. Burnham, 46 App. Div. 513. 
 62 N. Y. S. 120 (1900), (affd. 165 N. Y. 659, 59 N. E. 1119)., 
 
 Where the personal representative is also heir or sole devisee he will be 
 bound by a judgment against him as executor. Stewart v. Montgomery, 23 
 Pa St 410 (1854) ; Colton V. Onderdonk, 69 Cal. 155, 10 Pac. 395. 58 Am. 
 Rep. 556 (1886); rn2UP"'"''"'"'f'' ^ Cnrhrnn. 1^6 Pa. St. .22^. 23 Atl. 203 
 (1891) ; Donifelser v. Heyl, 7 Kans. App. 606, 52 Pac. 468 (1898). Contra: 
 Merchant.';' Nat. Bank v. Good, 21 W. Va. 455 (1883) ; Lanby v. Gill, 42 Misc. 
 334, 86 N. Y. S. 718 (1904). , , _. .„ , 
 
 Generally, a judgment against the personal representative will be con- 
 clusive upon legatees, as the personalty is the primary fund for the payment 
 of debts. Castellaw v. Guilmartin, 54 Ga. 299 (1875) ; Harris v. Bryant, 83
 
 COAD V. COWIIICK 621 
 
 SECTION 8. LIEN OF JUDGMENTS 
 
 COAD V. COWHICK 
 
 Supreme Court of Wyoming, 1910 
 9 Wyo. 316 
 
 On reserved question from the District Court of Laramie County. 
 
 Mark M. Coad on September 14, 1888, recovered a judgment 
 against Oscar F. Cowhick upon which a balance remained unpaid. 
 On June 18, 1891, J. Y. Cowhick died, seized of the real estate in con- 
 troversy, leaving Oscar F. Cowhick as one of his heirs at law. 
 On August 15, 1 89 1, Oscar F. Cowhick conveyed to Marshall Field 
 & Company all his interest, as heir at law of said decedent, in his 
 estate. On August 29, 1891, Coad issued execution on his judgment 
 levied on said real estate and became the purchaser at sheriff's sale. 
 The question was whether the judgment rendered in the district 
 court became a lien on the after-acquired real estate of the judg- 
 ment debtor.'^- 
 
 Corn, J. : The sole question submitted in this case is whether, 
 in this state, a judgment of the district court is a lien upon after- 
 acquired lands. Our statute upon the subject is as follows: Section 
 3828, "Lands and tenements, including vested interests therein, and 
 permanent leasehold estates, renewable forever, and goods and chat- 
 tels not exempt by law, shall be subject to the payment of debts, and 
 shall be liable to be taken on execution, and sold as hereinafter 
 provided." 
 
 Section 3829. "Such lands and tenements, within the county 
 where the judgment is entered, shall be bound for the satisfaction 
 thereof from the first day of the term at which judgment is ren- 
 dered; but judgments by confession, and judgment rendered at the 
 same term at which the action is commenced, shall bind such lands 
 only from the day on which such judgments are rendered; and all 
 other lands, as well as goods and chattels of the debtor, shall be 
 bound from the time they are seized in execution." 
 
 N. Car. 568 (1880); Mauldin v. Gossett, 15 S. Car. 565 (1881) ; Martin v. 
 Ellerhe, 70 Ala. 326 (1881) ; Eraser v. Charleston, 19 S. Car. 384 (1882) ; 
 Hooper v. Hooper, 32 W. Va. 526, 9 S. E. 937 (1889) ; Ward v. Durham, 134 
 111. 195, 25 N. E. 745 (1890) ; Carey v. Roosevelt, 81 Fed. 608 (1897) ; Hansen 
 E. F. E. V. Teaboiit, 104 Iowa 360,73 N. W. 875 (1898). But it has been held 
 that a judgment against the executor is not conclusive upon legatees so far as 
 their legacies are charged upon and payable out of realty. Eirst Baptist 
 Church V. Syms, 51 N. J. Eq. 363, 28 Atl. 461 (1893). And one of two claim- 
 ants to a specific legacy was held not bound by a judgment, to which he was 
 not a party, recovered by the other cliamant against the executors of the will. 
 Weeks V. Weeks, 16 Abb. N. Cas. (N. Y.) 143, 52 Super. Ct. 512 (1885), and 
 see Shipman v. Rollins, 98 N. Y. 311, 15 Abb. N. Cas. 288 (1885). 
 314 (1889) ; Tolcr v. East Tennessee &c. Co., 67 Fed. 168 (1894) ; Woods v. 
 '"The statement of facts is abridged and the arguments of counsel and 
 part of the opinion omitted.
 
 t)jj JUDGMENT 
 
 At common law. except for debts due the kinj::, the lands of the 
 debtor were not liable to the satisfaction of a judj^ment against him, 
 and consoiiuentlv no lien thereon was acciuircd i)y a judgment. But 
 by tiie Statute \\'estm. II, 13 Edw. i, the judgment creditor was 
 given his election to sue out a writ of fi. fa, against the goods and 
 chattels of the defendant, or else a writ commanding the sheriff to 
 deliver to him all the chattels of the defendant, except oxen and 
 beasts of the plow and a moiety of his lands until the debt should 
 be levied by a reasonable price and extent. When the creditor chose 
 the latter alternative, his election was entered on the roll, and hence 
 the writ was denominated an elegit. Hutchcson v. Gruhhs, 80 Va. 
 254. While this statute did not in direct terms create the lien, courts 
 so construed it as to infer a lien from the power to take the lands 
 in execution." Scriba v. D canes, i Brock. (C. C.) 170. And this 
 lien has been held by the English courts and by the almost unani- 
 mous opinion of tlie courts oi this country, to extend to the after- 
 acquired land? of the debtor. Most of the states have enacted stat- 
 utes declaring the lien, and almost without exception, and witliout 
 regard to whether such statute in terms extended the lien to after- 
 acquired lands, they have held that such lands were bound by the 
 judgment from the time of their acquisition by the debtor. Freeman 
 on Judgments, 367. So far as I can find, the only two exceptions 
 are Pennsy lv ania and Ohjo - There was also a similar holding in 
 Iowa. Hmrlngton v. Sharp, I Green (Iowa) 131. But the rule laid 
 down in that case was subsequently changed by an amendment to 
 the statute expressly providing that judgments should be a lien 
 upon after-acquired lands, thus bringing it into line with the mass of 
 opinion in this country. Ji'are v. Delahaye, 95 Iowa 682. The Mis- 
 sissippi court is also cited as adopting the same construction. But 
 an examination of the cases shows that that court simply rejected 
 
 "Accord: Jones v. Jones, i Bland (Md.) 443, 18 Am. Dec. 327 (1827) ; 
 Coomhs V. Jordan, 3 Bland (Md.) 284, 22 Am. Dec. 236 (1831) ; United 
 States V. Morrison, 4 Pet. (U. S.) 124, 7 L. ed. 804 (1830) ; Burton v. Snnth, 
 13 Pet. (U. S.) 464, 10 L. ed. 248 (1839) ; Massingill v. Doivns, 7 How. (U. S.) 
 760 12 L. ed. 903 (1849) ; Hntcheson v. Grubbs, 80 Vt. 251 (1885) ; Morsell 
 V. First Nat. Bank, 91 U. S. 357, 23 L. ed. 436 (1875) ; Anderson v. Taylor 6 
 Lea (Tenn.) 382 (1880) ; Converse v. Michigan Dairy Co., 45 Fed. 18 (1891) ; 
 McMillan v. Davenport, 44 Mont. 23, 118 Pac. 756 (1911)- 
 
 In England a judgment does not operate as a charge on land unless a 
 writ or order for its enforcement is registered in the Land Registry under 
 the acts of 1888 (51 & 52 Vict. ch. 51 § 2), and 1900 (63 & 64 Vict. ch. 26 
 § 2\ and ceases to have effect at the expiration of five years from date of 
 registration unless renewed for a further period of five years. Hood v. 
 Cathcart, L. R. (1895), 2 Ch. Div. 411- , , • j i. „ 
 
 Statutes in the American states generally provide that judgments shall 
 be a lien on land for a prescribed term of years. See New York Code of 
 Civil Procedure, § 1251 ; Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57 
 N. E. 168, 79 Am. St. 565 (1900); Belfer v. Ludlow, 143 App. Div. 147. 127 
 N. Y. S. 623 (1911); California Code of Civil Procedure, §671; 3 Comp. 
 Stat, of New Jersey (1910) 2956; Bogert v. Lydecker, 45 N. J. L. 314 (1883) ; 
 Pen nsylvania acts of April 4. 17 98 , 3 Sm. L. 2 M. § 2; June I, 1887, P. L. 289, 
 5 I 2'P. & L. big. (2d ed.) 4201^4206; l^nnk o f N. Amer ica v. FiLzsuncms, 
 3 BinnrnPa.) 342 (1811) ; Miller v. Miller 147 Pa. St. _^ 48. 23 Atl. 841 (1892) ; 
 ^nrUunTsAppeal, 91 Pa. St.^85 Ci»74) ; Stealer vTSchall, 209 Pa. 526. 58 Atl. 
 gi2 (.1OO4J. "*
 
 COAD V. COWHICK 623 
 
 the contention that lands subsequently acquired were bound from 
 the date of the judgment, and held that "the lien attached on after- 
 acquired property from the time it was acquired by the debtor." 
 Moody V. Harper, 25 Miss. 492 ; Cayce v. Stoval, 50 Miss. 402. 
 
 But it is contended that our legislature having adopted the lan- 
 guage of the Ohio statute, we are bound by the construction given 
 to it by the Ohio courts. The case of Roads v. Symmes, i Ohio 314, 
 which settled the law in that state, is not a construction of the stat- 
 ute under consideration, but is an exposition of the rule at the com- 
 mon law or under the statute of Westm. II. The court deem it 
 unnecessary to decide whether it was a maxim of the common law or 
 was first introduced by the statute of Westm, II, as they say both 
 are equally the law in Ohio. And the decision is expressly based 
 upon the reasoning in the Pennsylvania case of Colhoun v. Snider, 
 6JBirL^j(JPa4^i45. But tlie decision in the Pennsylvania case fs not 
 based upon the common law nor the statute of Westm. II. The 
 author of Freeman on Judgments says of that decision: "As long 
 ago as the year 181 3, in the case of Colhoun v. Snider, the judges 
 in Pennsylvania, in deference to a long course of decisions in that 
 state, were constrained to decide that no judgment could ever at- 
 tach as a lien upon lands in which the judgment debtor had no in- 
 terest at the date of its rendition. The judge delivering this opinion 
 at the same time said : 'I am well satisfied that by the English com- 
 mon law lands purchased by the defendant, after judgment, but 
 aliened before execution, were bound by the lien.' Forty-seven years 
 later it was said in the same state that, 'whatever may be thought 
 of the doctrine of Colhoun v. Snider, that a judgment lien does not 
 bind after-acquired real estate, it is too firmly established in the 
 jurisprudence of this state to be shaken at tliis day.' Waters^ A^eal, 
 35^a^_St_^23. The rule thus established in Pennsylvania, and con- 
 fesse3Ty~repugnant to the common law, was adopted in a few other 
 American cases. It is, nevertheless, clearly repudiated, in favor of 
 the common-law rule, by the vast majority of tlie American decisions 
 declaring judgments to be liens upon real property acquired by the 
 defendant, after their rendition." Freeman on Judgments, section 
 367. The Ohio court in 1829, in Stiles v. Murphy, 4 Ohio 92, re- 
 affirmed the doctrine as laid down in Roads v. Symmes. But while 
 they construe the statute tlien in force in that state, they base their 
 decision upon Roads v. Symmes, and they say in conclusion, "That 
 decision may have been an innovation upon established principles of 
 law. It may have been a departure from true policy, under the 
 circumstances in which we are placed. But it would be a more dan- 
 gerous innovation, and a wider departure from true policy now 
 to disturb it." 
 
 The decisions in Pennsylvania and Ohio, as before observed, are 
 substantially conceded by the courts of those states to have been 
 erroneous,^ and are only adhered to under the rule of stare decisis. 
 That rule is not in any measure persuasive with us, the question not 
 having been passed upon before by this court, and no such rule of 
 property having been established in this state. Most of the states 
 have enactments similar to our own, to which they have given a
 
 6j4 judgment 
 
 construction cxtcncHnj:: the lion lo aftcr-acciuircd lands, and this was 
 the prevailing construction lonj^ prior to the adoption of the statute 
 bv us. 
 
 Our conclusion is, therefore, that, having adopted the statute of 
 Wcstm. II into the legislation of this state, wc adopted the con- 
 struction given to it with substantial unanimity by the courts of Eng- 
 land and this country, that the lien of the judgment attaches to the 
 after-aciiuired lands of the debtor. And that our enactment upon 
 the subicct was framed for the purpose of adapting that statute to 
 our conditions by defining the territorial limits of the lien existing 
 bv force of it, and not to change the character or extent of the lien 
 in any other respect.'^* 
 
 r'ottcr, C. J., and Knight, J., concur. 
 
 '* Accord: Brace v. Duchess of Marlhorough, 2 P. Wms. 491 (1728); 
 Sudgen on Vendors (8th Amer. ed.) vol. II, p. 156; Harris v. Rankin, 4 
 Manitoba 115 (18S7) ; McClnrc V. Crotcaii, 18 Quebec Super. Ct. 336 (1900) ; 
 Kidgcly v. Garicll, 3 H. & McH. (Md.) 449 (i796) ; Stow v. Tifft, 15 Johns. 
 438, 8 Am. Dec. 266 (1818) ; Ridge v. Prathcr, i Blackf. (Ind.) 401 (1825) ; 
 Den ex dcm. Green v. Stcelman, 10 N. J. L. 193 (1828) ; Jackson v. Bank of 
 U. S., 5 Cranch (C. C.) i, Fed. Cas. No. 7131 (1836); McClung v. Beirne, 
 \o Leigh (Va.) 394, 34 Am. Dec. 739 (1839) ; Chapron v. Cassaday, 3 Humph. 
 (Tenn.) 661 (1842) ; Trustees Real Estate Bank v. Watson, 13 Ark. 74 
 (1852) ; Harrison v. Roberts, 6 Fla. 71 1 (1856) ; Steele v. Taylor, i Minn. 274 
 (Gil. 210) (1856) ; Ralston v. Field, 32 Ga. aS2> (1861) ; Wales v. Bogne, 31 
 111. 464 (1863) ; Handly v. Sydenstricker, 4 W. Va. 605 (1871) ; Thulemeyer 
 V Jones, 37 Tex. 560 (1872) ; Cayce v. Stovall, 50 Miss. 396 (1874) ; Babcock 
 V. Jones, 1=; Kan. 296 (1S75); Campbell v. Martin, 87 Ind. S77 (1882); Ex 
 parte Trenholm, 19 S. Car. 126 (1882) ; Dickson v. Hynes, 36 La. Ann. 684 
 (1S84) ; Duell V. Potter, si Nebr. 241, 70 N. W. 932 (1897) ; Dessert v. Sieber- 
 ling, ^9 Nebr. 309, 80 N. W. 900 (1899) ; Wamble v. Cant, 112 Tenn. 327, 79 S. 
 W. 801 (1903); Glenn Morris Co. v. McColgan, 100 Md. 479. 60 Atl. 608 
 (190s) ; N. Y. Code Civ. Pro.. § 1251 ; Cal. Code Civ. Pro., § 671. Contra: 
 Riindle V. Ettivein. 2 Yeate s (Pa.) 23, 6 Binn I37n (i795) ; Colh ounv Sni der, 
 6"B inn. ( Pa.) 13 S (1813)'; Roads V. Symmes, I Ohio 281, 13 Am. Dec. 52T 
 ( 1824) ; McCormick v. Alexander, 2 Ohio 65 (1825); Stiles v. Murphy, 4 
 Ohio 92 (1829) ; EnrJ^r's AppeaL fiJE?! St 777 i; 1847) ; Leaji^g^kin^ 7 
 Pa St. 492 (1848) ; Aloorehead v. McKinney, 9 Pa. St. 265 (1848) ; Jacob's 
 AfpcalT^S Pa. St. 477 (T 8U) ! Ross ^^-Crts^TF cat. 106 Pa. St. 82 (1884) ; 
 Smdhv. Elogg . 52 Ohio St. 527, 40 N. E. 406 (1895) ; Elerrman Sazv Mill Co. 
 V. Martin, 22 Kv. L. 651, 58 S. W. 524 (1900) : Br\an ji^Jjmes^&.LauMib^^ 
 vS7££/_C£.^28_Pkj2i. '85 Atl. 1089 (1913)- The same rule prevailed in Iowa. 
 Harrington v. Sharp, I Greene (Iowa) 131, 48 Am. Dec. 365 (1848) ; Woods 
 V. Mains, l G. Greene (Iowa) 27s (1848) until altered by the Code, § 3801; 
 Ware v. Delabaye, 95 Iowa 667, 64 N. W. 640 (1895). In Illinois, where an 
 execution is issued on a judgment within a year from its rendition, the judg- 
 ment will become a lien on after-acquired realty; if no execution is issued 
 within the year no lien will exist. Breed v. Gorham, 108 111. 81 (1883), and 
 see Winter v. Diinlap, 84 Kan. 519, 114 Pac. 1057 (1911)- 
 
 Several judgments entered at different times, if they become a hen on 
 after-acquired realtv, attach together and all stand on an equal footing, 
 Goetz V. Mott, 21 Abb. N. Cas. 246, i N. Y. S. 153, iS Civ. Proc. R. 11 (1888) ; 
 In re Hazard, 73 Hun 22, 25 N. Y. S. 928, 56 N. Y. St. Rep. 82 (1893) ; 
 Moore v. Jordan, 117 N. Car. 86, 23 S. E. 259, 42 L. R. A. 209, .S3 Am. St. 570 
 C180;) ; Kisterton v. Tate, 94 Iowa 663, 63 N. W. 350, 58 Am. St. 419 (1893) ; 
 Belknap v. Greene, 36 S. Car. 119, 34 S. E. 26 (1899)- Contra: Creighton v. 
 Leeds &c. Co., 9 Ore. 213 (1881). And see Elston v. Castor, loi Ind. 426, 51 
 Am. Rep. 754 (1884) ; Sherrard v. Johnston, IQ.^ Pa. St. 1 66, 44 Atl. 252, 74 
 Am. St. 680 (1899).
 
 INDEPENDENT SCHOOL DIST. &C. V. WERNER 625 
 
 INDEPENDENT SCHOOL DISTRICT OF WEST POINT v. 
 
 WERNER 
 
 Supreme Court of Iowa, 1876 
 43 lozva 643 
 
 The Independent School District of West Point, plaintiff and 
 appellant, avers in its petition that it obtained judgment against 
 the defendant, and one Charles Peters and others, on which an 
 execution issued and was returned: "no property found of defend- 
 ant's." Afterwards plaintiff brought a suit in equity against the said 
 Charles Peters and others, for tlie purpose of subjecting to the 
 payment of said judgment certain land to which it was averred 
 that said Charles Peters formerly held title, but which he had fraud- 
 ulently conveyed to the other persons made parties defendant to that 
 suit. Decree was rendered in favor of the plaintiff. The judgment 
 was established as a lien on the land, and a special execution was 
 ordered to be issued and levied on the same, which was done. 
 
 Afterward, and before sale this suit was brought. The petition 
 avers, in addition to the facts above set forth, that Wm. Werner, 
 the defendant in this suit, entered upon the said land by himself 
 and servants since the date of the decree, and cut wood and carried 
 off the same, and tliat a portion of the wood so cut still remains 
 on the land; that the defendant then had several hands chopping 
 wood on said land, for the purpose of removing the same, and 
 was greatly depreciating the value of said land, and impairing the 
 plaintiff's security and liens thereon ; and the petition prays that the 
 defendant be restrained from the further chopping of wood on 
 said land and from removing the wood already chopped. 
 
 The answer admits the decree; avers that defendant had con- 
 trol of the land for twenty-four years, during which time he had 
 paid taxes and cut from it his fire-wood and fence posts; admits 
 that there were several cords of fire-wood, some fence posts and 
 rails cut and remaining on said land, but avers that they were cut 
 before the decree was rendered, and denies that he has removed 
 wood since the decree, and denies that any one has done so for him. 
 
 The defendant moved for a dissolution of the injunction. The 
 motion was sustained and the plaintiff" appeals,'^^ 
 
 Adams, J. : At the time of tlie alleged cutting and removal of 
 wood and timber, no decree has been rendered in favor of the 
 plaintiff. At that time the plaintiff was, at most, a mere judgment 
 lien holder. Plaintiff had, it is true, brought suit in equity to set 
 aside the title of those in whom it stood of record, but no attach- 
 ment had issued and no levy had been made. "A judgment lien 
 on land constitutes no property or right in the land itself; it only 
 confers a right to levy on the same to the exclusion of other adverse 
 interests subsequent to the judgment." Rodgers v. Bonner, 45 N. 
 Y- 379- 
 
 "Part of the ooinion is omitted. 
 40 — Civ. Prog.
 
 (')j6 judgment 
 
 A iudj^jiicnt debtor, therefore, has a right to cut fire wood and 
 timber uihmi his hniul previous to a levy, and it follows that such 
 wood ami timber cut, but not removed, become his personal prop- 
 erty, and do not pass by a levy upon and sale of, the land. 
 
 We think the injunction was properly dissolved.^'^ 
 
 Affirmed. 
 
 MAY V. EMERSON 
 Supreme Court of Oregon, 1908 
 
 52 Ore. 262 
 
 This is an action of ejectment, commenced on October 23, 1907, 
 to recover the possession of lots 35 and 36, In block 11, Stewart's 
 second addition to Baker City. The answer admits that defendant 
 is in possession, and alleges that he is owner of the lots in fee sim- 
 ple ; and as a second defense alleges possession under a contract of 
 purchase, as disclosed in the stipulation of facts which includes the 
 
 "Accord: Lannlng v. Carpenter, 48 N. Y. 408 (1872). So, while ma- 
 chinery sold to the debtor may become affixed to the realty so as to be sub- 
 ject to' the judgment lien, the lien, alone, gives the judgment creditor no right 
 of possession. Ra jnwnd v. Schoon ove rj 181 Pa. St- 352, 37 Atl. 524 (1897). 
 And, so long as a debtor uses his property for ordinary purposes, he can not 
 be impeached for waste. Hoskin wVVoodzvard, 45 Pa. S t. 4^ (1863). But a 
 debtor wasting the property in fraud of creditors will be liable" in an action on 
 the case, Yates v. Joyce, 11 Johns. (N. Y.) 136 (1814) ; Christian v. _ Mills, 
 2Walk. (Pa/) mo, i6 W. N. Cac ,^Qt (1885), or may be restrained by i'njunc- 
 HorT IVitmcr's AppeaLl^ Fa. S t^'^. 84 Am. Dec. 505 (1863). 
 
 In Conrad v. Atlantic Insurance Co., I Pet. (U. S.) 386, 7 L. ed. l8g 
 (1828), at p. 442, it is said by Stor\', J.: "It is not understood that a general 
 lien by judgment on land constitutes, per se, a property, or right, in the land 
 itself.' It only confers a right to levy on the same, to the exclusion of other 
 adverse interests, subsequent to the judgment; and when the levy is actually 
 made on the same, the title of the creditor, for this purpose, relates back to 
 the time of his judgment so as to cut out intermediate incumbrances. * * _ * 
 In short, a judgment creditor has no jus in re, but a mere power to make its 
 general lien effectual, by following up the steps of the law, and consummating 
 his judgment by an execution and levy on the land." See also. Finch v. Earl 
 of iVinchelsea, i P. Wms. 277 (1715); Brace v. Duchess of Marlborough, 
 2 P. Wms. 491 (1728) ; Ladd v. Blunt, 4 Mass. 402 (1808) ; Shepard v. Roivc, 
 14 Wend. (N. Y.) 260 (1835) ; Petit v. Shepherd, 5 Paige (N. Y.) 493, 28 
 Am. Dec. 437 (1835) ; Cover v. Black. I Pa. St. 493 ^ (1845) ; Kollock v. Jack- 
 son, 5 Ga. 153 (1848) ; Reed'sAbhcal.\x Pa. St. 47T , f 18^0') ; Whiting & Slark 
 V. Beebe, 12 Ark. 421 (1851), at p. 542; Swarts v. Stees, 2 Kans. 236, 85 Am. 
 Dec. 588 (1864) ; Broivn v. Pierce, 7 Wall. (U. S.) 205, 19 L. ed. 134 (1868) ; 
 I^reveineycr V. Southern Mut. Ins. Co.. 62 Pa. St , 340, i Am. Rep. 420 (1869), 
 where a judgment creditor was held not to have an insurable interest in 
 specific property; Rogers v. Bonner, 45 N. Y. 379 (1871) ; Foute v. Fairman, 
 48 Miss. 536 (1873) ; Ashton v. Slater, 19 Minn. 347 (1872) ; Dyson v. Sim- 
 mons, 48 Md. 207 (1877) ; Mansfield v. Gregory, 11 Nebr. 297, 9 N. W. 87 
 (1881); Bruce v. Nicholson, 109 N. Car. 202, 13 S. E. 790, 26 Am. St. 562 
 (1891) ; fiqhfy rm,tifryn,rii\ Af F I Cn Kto Pn St ^TO. 32 Atl. 439, 47 
 Am. St. 904 (1895) ; Fulkerson v. Stiles, 156 Cal. 703, 105 Pac. 966, 26 L. R. A. 
 (N. S.) 181 (1909) ; Huff v. Sweetser, 8 Cal. App. 689, 97 Pac. 705 (1908) ; 
 Hunter v. Citi.zens S. & T. Co., 157 Iowa 168, 138 N. W. 475 (1912) ; Apple 
 V. Robb, 54 Ind. App. 359, 103 N. E. 12 (1913)-
 
 MAY V. EMERSON 627 
 
 following: That on February 24, 1906, defendant purchased the 
 lots from Dugan and wife, the price to be paid in monthly install- 
 ments, continuing over a period of more than a year; that a deed 
 was executed by Dugan and wife, and deposited in escrow with 
 M. S. Hughes, to whom payments were made, and was to be deliv- 
 ered by Hughes when the payments were completed; that the de- 
 fendant was to have possession from the date of the purchase ; that 
 on April 12, 1906, after the purchase and before tlie delivery of the 
 escrow deed, plaintiff, in an action of debt against Dugan and wife, 
 attached the said lots, which action resulted in judgment against 
 them on April 25, 1906; that an execution sale of said lots was had 
 on June 12, 1906, and confirmation thereof was had on June 22, 
 1906, and a sheriff's deed issued to the plaintiff on June 27, 1907, 
 that plaintiff, at the time of the attachment, had knowledge of the 
 contract of sale and escrow deed, and on July 15, 1906, notified the 
 defendant of said judgment and execution sale, and demanded that 
 payment of the purchase price be made to him ; that defendant paid 
 all the installments of the said purchase price to Hughes, according 
 to the agreement, and received the deed from him on or about Sep- 
 tember 14, 1907. From these facts the trial court found that plaintiff 
 acquired the title to the property free from any equity of the defend- 
 ant, and rendered judgment accordingly, and the defendant ap- 
 peals.''' 
 
 Eakin, J.: It is beyond controversy that the title remains in 
 tlie vendor until the actual delivery of the deed. The vendor still 
 has not only the legal title, but also an interest in the property as 
 security for the payment of the purchase price; and this interest 
 should be and is available to a creditor through the lien of his judg- 
 ment, which lays hold of such legal title, and thereafter pa3'ments 
 made to the vendor by the vendee are at his peril. Tomlinson v. 
 Blackburn, 37 N. Car. 509. If the purchase price is fully paid, 
 although the deed is not actually delivered, the vendor having but the 
 naked legal title, the judgment creditor can acquire no more. Sfannis 
 V. Nicholson, 2 Ore. 332; Riddle v. Miller, 19 Ore. 468; Riddle's 
 App_ea l, lo^Pa. i^ ij Uhl v. May, 5 Nebr. 157; Elwell v. HitcJicocF, 
 41 Katis. "130!^ 
 
 But to the extent of the unpaid purchase price the creditor's 
 lien will bind the property. Kinports v. Boynton, 120 Pa. 306; 
 Lefferson v. Dallas, 20 Ohio St. 68, and until the delivery of the 
 
 "Part of the opinion of the court is omitted. 
 
 '^Accord: Finch v. Winchelsea, I P. Wms. 277 (1715) ; Prior v. Penprase, 
 4 Price 99 (1817) ; Manley v. Hunt, i Ohio 257 (1824) ; Hoagland v. Latoxir- 
 ctte, 2 N. J. Eq. 254 (1839) ; Lounshury v. Piirdy, li Barb. (N. Y.) 490 
 (1851) ; Thomas v. Kennedy, 24 Iowa 397, 95 Am. Dec. 740 (1868) ; Adickes 
 V. Lowry, 15 S. Car. 128 (1880) ; Hurt v. Prillman, 79 Va. 257 (1884) ; Davey 
 V Ruffell. 162 Pa-S t. 443, 29 Atl. 894 (1894) ; Gibbs v. Tiffany, d Pa.Super . 
 Lt. 2« (1897) ; Hecker v. Moiirer. 8 Pa. Super. Ct. 4^ ( 1808) : Dalrvmble v. 
 Security Imp. Co., 11 N. Dak. 65, 88 N. W. 1033 (1902) ; Fleming v. Wilson, 
 92 Minn. 303, loo N. W. 4 (1904) ; McClecry v. Stoiip, 32 Pa Super Ct. 42 
 (1906) ; Adams v. White, 40 Okla. 535, I39 Pac. 514 (1914). Contra: Kobert- 
 son V. Wood, 5 La. Ann. 197 (1850); Buchanan v. Kimes, 2 Baxt. (Tenn.) 
 275 (1872).
 
 628 JUDGMF-XT 
 
 escrow deed tlic rights and remedies of the creditors of tlie vendor 
 are the same as in the case of an executory sale, evidenced by a 
 bond for a deed. In both cases the vendee has but an equitable 
 interest in the property, and the legal title remains in the vendor; 
 and where the escrow agreement requires the vendee to make pay- 
 ments to the depositary, he being a mere stakeholder, without any 
 personal interest in the fund, the vendee is only bound to pay to 
 him, while the grantor alone is the party in interest. But when a 
 creditor of the grantor has laid hold of his interest in the property, 
 and the grantee has notice of that fact, he is bound by the new 
 conditions. However, the docketing of the judgment is not con- 
 structive notice to him. He is not bound to search the records 
 every time he makes a payment. He is entitled to the benefit of all 
 payments made to the vendor until he has actual knowledge of the 
 lien. Freeman, Judgments, section 364; i Black., Judgments, sec- 
 tion 438; 17 A. & E. Encyc. of Law (2d ed.) 780; Wehn v. Fall, 55 
 Nebr. 547; Tayloev. Thompson, 5 Pet. (U. S.) 357; Moy^-r v. Hin- 
 luan, 13 N. Y. 180; Hampson v. Edelen, 2 Har. & John. (Md.) 64; 
 Parks V. Jackson, 11 Wend. (N. Y.) 442.'^ 
 
 Defendant was not required to make tlie payments to plaintiff 
 as they matured, until plaintiff acquired the vendor's rights. The 
 vendee can not assume to determine for himself, and at his own 
 risk, the controversy between plaintiff and his debtor; and defend- 
 ant need not go into equity to settle their differences. He may 
 stand upon his contract, and when plaintiff has acquired the vendor's 
 right to the money by perfecting title in himself the defendant 
 will be justified in making payment to him. In McMuUen v. Wen- 
 ner, 16 Serg. & R. (P^.) 19, it is held that the sale on execution 
 "Bin^tlie legal estate, andthe execution purchaser stands in the 
 place of the original vendor, and is entided to the unpaid purchase- 
 money, the payment of which he can enforce by ejectment ; and tliis 
 works no hardship on the vendee, as he can protect himself by 
 witldiolding further payments, unless he is indemnified. And upon 
 payment to the judgment creditor he is entitled to a conveyance of 
 the legal title vested in the sheriff's vendee. Mover v. Hinman, 13 
 N. Y. 180; Id., 17 Barb. (N. Y.) 137. In the latter case it is held 
 tliat the judgment against the vendor is a charge upon the land, 
 and binds the legal title ; but equity limits and restricts this lien to 
 the amount of the unpaid purchase-money due from the vendee, and 
 the vendee may insist upon a conveyance of the premises upon pay- 
 ment of the purchase-price. 
 
 In Stewart v. Coder, 1 1 Pa. 90, it is held that when the vendor 
 retains the legal title for the security of unpaid purchase-money. 
 
 "Accord: Vance v. Workman, 8 Blackf. (Ind.) 306 (1846); Filley & 
 Hopkins v. Duncan, I Xebr. 134, 93 Am. Dec. 2,2,7 (1850) ; Shinn v. Taylor, 28 
 Ark. 523 (1873) ; Floyd v. Harding, 28 Grat. (Va.) 401 (1877) ; Schrocdcr v. 
 Gurncy, 72, N. Y. 430 (1878) ; Logan v. I'annill, 90 Va. 11, 17 S. E. 744 (1893). 
 Unless it can be shown that the payments were made with actual knowledge 
 of a lien on the vendor's interest in the land, IVehn V. Fall, 55 Nebr. 547, 
 76 N. W. 13, 70 Am. St. 397 (1S98). Compare State Bank of Decatur v. 
 Sanders, 114 Ark. 440, 170 S. W. 86 (1914).
 
 MAY V. EMERSON 629 
 
 a Judgment against him is a lien not only on the naked title, but it 
 also attaches on the money remaining unpaid, and the execution 
 purchaser may enforce payment by an action in ejectment. A judg- 
 ment creditor has a right to sell the vendor's interest in the property, 
 and in that manner acquire his interest in the debt, as well as the 
 property, as security for its payment. Glander v. Tighe, 43 Nebr. 
 3.-14; Doe V. Startzer, 62 Nebr. 718. Whether the creditor has a 
 remedy by attaching the debt or whether in all cases that remedy 
 would be adequate, need not be decided here; the remedy by judg- 
 ment and execution sale of the vendor's interest is a proper one. 
 But the defendant has not forfeited his rights by failing to redeem 
 from plaintiff's execution sale. He is not a redemptioner until he 
 has received the escrow deed, which he can secure only by paying 
 the purchase-price to the depositary, which would thus require a 
 double payment ; and, without the peril of litigation with the vendor, 
 he could not pay plaintiff until the vendor's interest is extin- 
 guished. The burden is upon plaintiff to put himself in a position 
 to demand the money from the defendant. This makes it necessary 
 for him to acquire tihe vendor's right and title. 
 
 Defendant has pleaded possession under his contract of pur- 
 chase, of which the plaintiff at all times had notice ; and, until the 
 defendant has forfeited his right to possession tliereunder, he can 
 not be ousted. The stipulation in this case discloses that he paid 
 the money to the depositary, but that is not an act of forfeiture, 
 even though such payment may be a total loss to him. Tomlinson v. 
 Blackburn, 37 N. Car. 509. 
 
 But defendant can not be ousted by plaintiff until the latter has 
 placed him in default, by tendering him a deed and demanding the 
 money. The execution of tlie deed by plaintiff and the payment of 
 the purchase-money by the defendant are concurrent acts. Guthrie 
 V. Thompson, i Ore. 353; Wolcott v. Madden, 10 Ore. 370; Powell 
 V. Dayton, etc., R. Co., 12 Ore. 488. 
 
 The defendant is not in default, and therefore can not be ousted 
 by ejectment; and the judgment is reversed.^*^ 
 
 Reversed. 
 
 A judgment lien accruing: against a vendor of land after the making of 
 the contract of sale binds his interest in the land to the extent of the unpaid 
 purchase money. Catlin v. Rnhinson. 2 Watts (Pa ) 37-^ (1834); Lane v. 
 Ludlow, 2 Paine (C. C.) 591, Fed. Cas. No. 8052 (1835) ; Moyer v. Hinman, 
 13 N. Y. 180 (1855) ; Pafton v. Hollidavsbiira. 40 Pa. St. 2 06 (1861) ; Leffer- 
 son V. Dallas, 20 Ohio St. 68 (1870) ; Jackson v. ii'nell, 34nn3t 241 (1870) ; 
 Minneapolis & St. Lords R. Co. v. Wilson, 25 Minn. 382 (1879); Pack v. 
 Hansbarger, 17 W. Va. 313 (1880) ; Hardee v. McMichael, 68 Ga. 678 (1882) ; 
 Coolbough v. Roemer, 30 Minn. 424, 15 N. W. 869 (1883) ; Berryhill v. Potter, 
 42 Minn. 279, 44 N. W. 251 (1890) ; Snyder v. B of kin, 37 W. Va. 355, 16 S. E. 
 591 (1892) ; Kinports v. Bo vntnn. 120 Pa. St^3o6, i4 AtL 13=^, 6 Am. St. 706 
 (1888) ; Valentine v. Seiss, 79 Md. 187, 28 Atl. 892 (1894) ; First Nat. Bk. v. 
 Edgar, 65 Nebr. 340, 91 N. W. 404 (1902) ; Zenda Min. Co. v. Tiffin, 11 Cal. 
 App. 62, 104 Pac. 10 (1909).
 
 630 JUDGMENT 
 
 DOE EX DEM COOrER z: CUTSHALL 
 Supreme Court of Indiana, 1S48 
 
 I f)td. 246 
 
 Ejectment, by Doc on the demise of Cooper against Cutshall. 
 Judgment for the defendant below. Cutshall derives title from Com- 
 paret ; Cooper, the lessor of tlie plaintiff, from Norris. The facts of 
 the case are these : 
 
 On the 9th of August, 183 1, Francis Comparet sold the land in 
 controversy to Luke Norris, gave him a title-bond for, and put him 
 in possession of it. Norris continued in possession till December, 
 1833, and made improvements. At the time he found he should be 
 unable to pay for the land, and, accordingly, surrendered the pos- 
 session and title-bond, received back his notes, given for the pur- 
 chase-money, and the contract was then cancelled by mutual consent. 
 Comparet then sold the land to Cutshall. 
 
 On the 2d of May, 1833, Stephen Coles obtained a judgment in 
 the Allen Circuit Court against said Luke Norris; and on tlie 20th 
 day of Alay, 1834, had the land in dispute sold, on an execution on 
 said judgment against Norris, at which sale, Henry Cooper, the 
 lessor of the plaintiff, became the purchaser. Such are the respective 
 titles of the parties. The plaintiff claims to succeed on the ground 
 that the judgment of Coles was a lien on the equitable estate of 
 Norris in the land, under his title-bond and possession, and that, 
 by the sheriff's sale and deed, that interest and right of possession 
 were conveyed to Cooper, his lessor; and he relies upon the cases of 
 Jackson v. Parker, 9 Cow. (N, Y.) 73, and JVayman et al. v. 
 Harding, 3 Blackf. (Ind.) 26. The case of Jackson v. Parker was 
 examined, and held not to be law in this state, in Modisetf v. Johnson, 
 2 Blackf. (Ind.) 431; and Modisett v. Johnson was reviewed and 
 confirmed by this court in Orth v. Jennings et al, 8 Blackf. (Ind.) 
 420. The case of IVayman et al. v. Hardin, has no bearing upon the 
 present. 
 
 We think Cole's judgment was no lien on the land held by 
 Norris, and that the sale by the sheriff of the land, under Cole's 
 judgment, and his deed pursuant to said sale, conveyed no title to 
 Cooper, the plaintiff's lessor. 
 
 The judgment is affirmed with costs, etc.^^ 
 
 "Many cases hold that the interest of a vendee in possession under a 
 contract of purchase is equitable and not subject to the lien of a judgment 
 against him. Modisett v. Johnson, 2 Blackf. (Ind.) 431 (1831); Davis v. 
 Cumberland, 6 Ind. 380 (1855) ; Gentry v. Allison, 20 Ind. 481 (1863) ; Evans 
 V. Fceny, 81 Ind. 532 (1882) ; Roddy & Co. v. Elam, 12 Rich. Eq. (S. Car.) 
 343 (1866) ; Merchants' Nat. Bank v. Eustis, 8 Tex. Civ. App. 350, 28 S. W. 
 227 C1894) ; Rosenberger V. Jones, 118 Mo. 559, 24 S. VY. 203 (1893) ; Sweeney 
 V. Pratt, 70 Conn. 274, 39 Atl. 182, 66 Am. St. loi (1898) ; Powell v. Bell, 
 81 Va. 222 C1885) ; Nelson v. Turner, 97 Va. 54, 33 S. E. 390 (1899). In New 
 York the decisions were conflicting, compare Bogert v. Perry, 17 Johns. 
 (N. Y.) 351 (1819), with Jackson ex don. Cary v. Parker, 9 Cow. (N. Y.)
 
 MUTUAL ASSUR. SOC. V. STANARD 63I 
 
 MUTUAL ASSUR. SOC. v. STANARD 
 
 Supreme Court of Appeals of Virginia, 1815 
 
 4 Munf. (Va.) 539 
 
 The Mutual Assurance Society against fire on buildings, in the 
 state of Virginia, filed a bill in the Superior Court of Chancery for 
 the Richmond District, against Larkin Stanard, and Beverley C. 
 Stanard and Robert S. Chew, trustees in a deed executed by the 
 said Larkin, for the benefit of sundry creditors of his, who were also 
 made defendants. 
 
 The object of the bill was to obtain satisfaction of a judgment 
 rendered by the district court of Fredericksburg, in favor of the 
 
 73 (1828) ; Ellsworth v. Cuyler, 9 Paige (N. Y.) 418 (1842) ; Salisbury v. 
 La Fine, 21 Colo. App. 13, 121 Pac. 952 (1912) ; Ross v. Nichols, 25 Colo. App. 
 409, 138 Pac. 1013 (1914). The revised statutes provided that such an interest 
 should not be bound by the docketing of a judgment, nor sold by execution 
 thereon, Griffin v. Spencer, 6 Hill (N. Y.) 525 (18.44) ; Bought on v. Bank, 
 2 Barb. Ch. (N. Y.) 45S (1847), and this provision is re-enacted in the Code 
 of Civil Procedure, § 1253. Packard v. Sugarman, 31 Misc. 623, 66 N. Y. S. 30 
 (1900). (But the interest can be reached by attachment, Higgins v. McCon- 
 nell, 130 N. Y. 482, 29 N. E. 978 (1892). 
 
 Where, by statute or decision, a judgment is a lien on an equitable 
 estate in lands the rule is otherwise. Baldzvin v. Belcher, I J. & L. 18 (1844) ; 
 Walcott & Colder v. Lynch, 13 Ir. Eq. R. 199 (1850) ; Adams v. Harris, 47 
 Miss. 144 (1872) ; Rand v. Garner, 7$ Iowa 311, 39 N. W. 515 (1888) ; Steivart 
 V. Berry, 84 Ga. 177, 10 S. E. 601 (1889) ; Washington v. Bogart, 119 Ala. 277, 
 24 So. 245 (1898) ; Davis v. Vass, 47 W. Va. 811, 35 S. E. 826 (1900). In 
 Pennsylvania. "A judgment against the equitable estate which a vendee holds 
 imder articles of agreement for the sale and purchase of land attaches to and^ 
 binds the legal estate the instant that it vests in the vendee." Water's Appeal, 
 35 Pa. St. 523, 78 Am. Dec. 354 (i860) ; Richter v. Selin, 8 Serg. & R. (Pa.) 
 425 (1822)'; Amverter v. Mathiot, 9 Serg. & R. (Pa.) 397 (1823) ; Episcopal 
 Academy v. Frieze, 2 Watts (Pa.) 16 (1833) ; Foster's Appeal, 3 Pa. St. 79 
 (1846); Russell's Appeal, i^ Pa. St. 319 (1850); Lloyd, Huff and Watt's 
 Appeal, 82 Pa. St. 485 (1876); Eberly v. Lehman, 100 Pa. St. 542 (1882). 
 But a vendee who has paid no part of the purchase money and with the con- 
 sent of the vendor has cancelled the articles of agreement, has no estate which 
 would be bound by the lien of a judgment against him. Raffensberger v. 
 Cji/Zi.yow, 28 Pa. St. 426 (1857). 
 
 At common law a judgment at law is not a lien upon an equitable 
 interest, the creditor must have relief in equity. Jackson ex dem. Montgomery 
 V. CJiapin, 5 Cow. (N. Y.) 485 (1826) ; Baird v. Kirtland, 8 Ohio 21 (1837) ; 
 New York Dry Dock Co. v. Stillman, 30 N. Y. 174 (1864) ; Morsell v. First 
 Nat. Bank, 91 U. S. 357, 23 L. ed. 436 (1875) ; Brandies v. Cochrane, 112 U. S. 
 344, 28 L. ed. 760, 5 Sup. Ct. 194 (1884) ; Trusdell v. Lehman, 47 N. J. Eq. 
 218, 20 Atl. 391 (1890) ; Sipley v. Wass, 49 N. J. Eq. 463, 24 Atl. 233 (1892) ; 
 Cummings v. Duncan, 134 N. W. 712, 22 N. Dak. 534, Ann. Cas. 1914B, 976n 
 (1912) ; Smith v. Collins, 81 N. J. Eq. 348, 86 Atl. 957 (1913). In Pennsyl- 
 vania, in the absence of a court of chancery it was established as a principle 
 that judgments were liens on equitable estates. Carkhuff v. Anderson, 3 Binn. 
 (Pa.) 4 (1810); Fair Hope North Salvage Fire Brick Co.'s Estate, 183 Pa. 
 St. 96, 38 Atl. 519 (1897). And in several states statutes provide that a judg- 
 ment is a lien on equitable interests in real e.state. McMechen v. Marman, 
 8 Gill & J. (Md.) 57 (1836) ; Blain v. Stewart, 2 Iowa 378 (1856) ; Niantic 
 Bank v. Dennis, 2,7 Hb 381 (1865) ; Trimble v. Hunter, 104 N. Car. 129, 10 
 S. E. 291 (1889); Weaver v. Smith, 102 Tenn. 47, 50 S. W. 771 (1898); 
 Barlow v. Cooper, 109 111. App. 375 (1Q02). 
 
 ]
 
 6^2 JUDGIMENT 
 
 complainants, acjainst the dofcmlant, T.arkin Stanard, at April term, 
 viz.. on the 0th of i\lay, 1808, by suhjccting for that purpose a tract 
 of land, and smulry slaves and other ])ersonal property ("being 
 all his estate, real and personal") which he had conveyed by that 
 deed, bearing date tlie 28th of April, and recorded on tlie 9th of 
 May, 1808. 
 
 Larkin Stanard and the trustees in their answers denied the 
 charge of fraud made in the bill. The other defendants appeared to 
 be just creditors, and by their answers stated their claims, to sat- 
 isfy which the deed was given. It did not appear that the plaintiffs 
 had sued out any execution upon their judgment. Chancellor Tay- 
 lor dismissed the bill and plaint iiTs appealed.*- 
 
 RoANE, J.: The court is of opinion, that, as it appears In evi- 
 dence, in this cause, that the deed of trust in the proceedings men- 
 tioned, was executed on and after the first day of the term in which 
 the appellants' judgment was obtained, and as that judgment relates 
 to the said first day, inclusively, the said deed of trust could not 
 vacate or affect the lien on the land created by tlie judgment,^^ that, 
 consequently, it was incompetent to exclude the claim of the appel- 
 lants upon the land thereby conveyed; and that the right of the 
 trustees under the same ought to be taken in subordination thereto ; 
 that, as the said deed provided, that tlie said land should be sold 
 to answer the purposes of the said trust, the court is of opinion, 
 that the trustees therein named, should have been decreed to sell 
 the same, and pay, In the first place, the principal sum, interest and 
 costs, due to the appellants by the said judgment, out of the proceeds 
 thereof, after which they should be held at liberty to proceed in 
 the execution of their trust; and that there is error in so much 
 
 "A portion of the statement of facts is omitted. 
 
 ^'At common law, judgments of a court of record, on whatever day of 
 the term entered, related back to the first day of the term and overreached 
 as a lien all intermediate conveyances of, or, charges upon, the debtor's lands. 
 Stand ford v. Cooper, Cro. Car. 102 (1627); 2 Tidd's Pr. 967, 3 Sa!k. 212. 
 The Statute of Frauds (29 Car. II, ch. 3, §§ 14, 15), required that the true 
 date of all judgments should be noted in the margin of the roll, and provided 
 that, as against bona fide purchasers for value, such judgments should bind 
 from the time they were signed. Odes v. Woodward, 2 Ld. Raj-m. 766 (1702) ; 
 Robinson V. Tonge, 3 P. Wms. 398 (1735) ; Fatin v. Atkinson, Willes 427 
 Ci7-]3) ; Sivann v. Broome, 3 Burr. 1595 (1764) ; Bracjner v. Langmead, 7 T. R. 
 20 (1796) ; IVaghorne v. Langmead, i B. & P. 571 (1796). The common-law 
 rule was followed in a number of early American cases. Coutts v. Walker, 
 2 Leigh (Va.) 268 (1830) ; Skipzvith v. Cunningham, 8 Leigh (Va.) 271, 31 
 Am. Dec. 642 (1837) ; Brockenborough v. Brockenborough, 31 Grat. (Va.) 
 s8o (1870); Farley v. Thomas L. Lea, 3 Dcv. & B. (N. Car.) 169 (1838); 
 Urbana Bank v. Baldwin, 3 Ohio 65 (1827) ; Riddle v. Bryan, 5 Ohio 49 
 ("1831), and with some statutory qualifications is still the law in several states, 
 Colt V. Dn Bois, 7 Nebr. 391 (1878); Hayden v. Huff, 60 Nebr. 625, 83 
 N. W. 920 (1900) ; Coad v. Cozvhick, 9 Wyo. 316, 63 Pac. 584, 87 Am. St. 953 
 C1900) ; Bowlin v. Garrett, 49 Kans. 504, 31 Pac. 135, 33 Am. St. 2>77 (1892) ; 
 Holman v. Miller, 103 N. Car. 118, 9 S. E. 429 (1889) ; Jeffrey v. Moran, loi 
 U. S. 285, 25 L. ed. 785 (1879 Ohio) ; Nat. Bank v. Tennessee C. &c. R. Co., 
 62 Ohio St. 564, 57 N. E. 4,so (1889); Neiv South Building & L. As.m. v. 
 Reed, 96 Va. 34^, 31 S. E. 514, 70 Am. St. 858 (1898) ; Smith v. Parkersburg 
 Co-op. Assn., 48 \V. Va. 232, 37 S. E. 645 (1900); McKinney v. Street, 165 
 N. Car. 515, 81 S. E. 757 (1914).
 
 MUTUAL ASSUR. SOC. V. STANARD 633 
 
 of the said decree as dismisses the bill in toto, instead of making the 
 provision respecting the land. 
 
 With respect to the personal estate conveyed by the said deed, 
 the court is of opinion, that, as it is competent to a debtor to prefer 
 one bona fide creditor to another not having a lien thereupon, which 
 lien only arises by the delivery of the execution to the sheriff;^* 
 and as no execution was taken out by the appellants in this case, the 
 court is of opinion, that the appellants have no lien or ground to 
 stand on, either for the purpose of vacating the deed aforesaid, or 
 of being permitted to redeem the said personal property, according 
 to the doctrine established in the case of Shirley v. Watts, 3 Atk. 
 200; but this opinion, on this point, is not to bar or affect the right 
 of the appellants, if any, to the residuary money, resulting to the 
 grantor, Stanard, from the sale of the personal estate thereby con- 
 veyed. 
 
 The court is of opinion, therefore, that, so far as the decree dis- 
 inisses tlie bill as to the personal property, it is correct; but that it 
 was erroneously dismissed as to the land, for the reason before as- 
 signed ; and that, instead thereof, it should have made the provision 
 hereinbefore mentioned, in favor of the appellants. 
 
 Decree reversed, and cause remanded to the court of chancery, 
 to be reformed pursuant to tlie principles of this decree.^^ 
 
 ^Simpson v. Smith, 75 Miss. 505, 22 So. 805 (1897) ; In re Tapper, 163 
 Fed. 766 (1908 N. Y.) ; Whitaker v. Wishey, 12 C. B. 44 (1852) -yJDuncajtjf. 
 Mc Cuni p£x,ljJX^W 2.tts ( Pa . ) 212 (1840), infra page 694. 
 
 **Tir a great majority of states the common-law rule has been modified 
 or abolished, i Black on Judgments, § 443. In some jurisdictions judgments 
 rendered at the same term are equal. Morgan v. Sims, 26 Ga. 283 (1858) ; 
 Bailey v. Bailey, 93 Ga. 768, 21 S. E. 77 (1894) ; Dloiighy v. Spanninger, 30 111. 
 App. 302 (1888) ; Gay v. Rainey, 89 111. 221, 31 Am. Rep. 76 (1878), in others 
 a judgment is regarded as entered on the last day of the term. Chase v. 
 Gihnan, 15 Maine 64 (1838) ; Goodall v. Harris, 20 N. H. 363 (1850) ; Bradish 
 v. State, 35 Vt. 452 (1862) ; Wolfe v. Joubert, 45 La. Ann. iioo, 13 So. 806, 
 21 L. R. A. 772 (1893), and see Bradley v. Heffernan, 156 Mo. 653, 57 S. W. 
 763 (1900). But in most states the lien of a judgment attaches from the date 
 of "rendition" or date of "entry," the language of the statutes varying in this 
 respect. See New York Code of Civil Procedure, § 1250; In re Hazard, 73 
 Hun 22, 25 N. Y. S. 928, 56 N. Y. St. Rep. 82 (1893) ; Gay v. Hudson R. E. P. 
 Co., 182 Fed. 904 (1910N. Y.) ; California Code Civ. Pro., § 671 ; Del. Rev. Code 
 (i9i5),ch. 132, § I ; Dyson Y. Simmons, ^^Md. 207 (1877) ; Callanan v. Votruba, 
 104 Iowa 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. 538 (1898) ; Himt v. 
 Swayse, 55 N. J. L. ZZ, 25 Atl. 850 (1892) ; Julian v. Beal, 26 Ind. 220, 89 Am. 
 Dec. 460 (1866) ; Marshall v. Hart, 4 Minn. 450 (i860) ; Belbaze v. Ratto, 
 69 Tex. 636, 7 S. W. 501 (1888) ; Sklower v. Abbott, 19 Mont. 228, 47 Pac. 901 
 (1897) ; IVhitworth V. McKee, 32 Wash. 83, 72 Pac. 1046 (1903) ; Pennsyl- 
 vania, Art nf yfurrh -7T^ T77?, I Sm. L. 389, § 3 ; P. & L. Dig. (2d ed.) 4201 ; 
 n^^c h^v.' Murray. 4 Dall. (Pa.) ^20, 4 Yeates_i97j_i L. ed. 850 (1805) ; Burns 
 v' Bums. 18 P hila. (Pa.) •;^8o (1886^ ; UTasgo2^_y_._JC£Limr-i7^I'a. St. 262, 32 
 Atl. 1095 (1895)', and see Patterson's Ap peal, j^6_Pz. St. 93 ( 1880) ; Cran- 
 ford Mercantile Co. v. Andeflon, 179 Ala. 573, 60 So. 874 (1913).
 
 634 JUDGMENT 
 
 GALLAGHER v. TRUE AMERICAN RUB. CO. 
 
 Court of Chancery of New Jersey, 1908 
 
 75 N. J. Eq. 171 
 
 On appeal of the Trenton Trust and Safe Deposit Company, 
 from tlie decision of the receiver of the defendant corporation re- 
 fusing preference of a claim. 
 
 On April 28, 1908, at ten minutes after four o'clock in the 
 afternoon, a judgment was recovered in the Supreme Court of this 
 state against the defendant company, impleaded with others. The 
 suit was on a promissory note of which the defendant company 
 was the maker, and, consequently, the party primarily liable. The 
 other defendants were indorsers. At eight o'clock in the evening 
 of the same day the bill of complaint in this cause was presented 
 to this court, and an order was thereupon made appointing Edward 
 L. Katzenbach, Esq., receiver of the defendant company. The bill 
 and order were, according to the practice, marked filed as of April 
 28, 1908, the date of their presentation and consideration, and were 
 actually filed in the clerk's office the next day. Mr. Katzenbach 
 qualified as receiver on the 29th, the day the papers were lodged in 
 the clerk's office. 
 
 A claim by the plaintiff as a preferred creditor against the 
 defendant corporation in respect to the lands of the defendant was 
 duly made and presented to the receiver, who disallowed it as a 
 preference.®^ 
 
 Walker, V. C. : This solution of the question here presented 
 depends upon whether the law will take account of the fraction 
 of a day. 
 
 Our act concerning judgments (Gen. Stat, p. 1841, section 2) 
 provides that a judgment shall bind lands from the time of the actual 
 entry thereof on the records of the court. 
 
 Section 68 of our present corporation act (Rev. of 1896; P. L., 
 pp. 2yy, 299) provides that upon the appointment of a receiver 
 the property of an insolvent corporation forthwith vests in him; 
 and, therefore, the property of the defendant company vested in the 
 receiver on the day the appellant's judgment was recovered. 
 
 The rule that the law does not take account of the fraction 
 of a day, is, like almost every other rule, subject to exceptions, and 
 one exception is that which is recognized in the contest between 
 judgment creditors as to who has the prior lien by virtue of a levy 
 made on the same day with another or with other levies. Now, 
 as it is incumbent upon courts to decide who is first in point of time 
 with reference to the delivery of a writ to a sheriff or other officer, 
 and of the priority of a levy upon property as between several 
 executions, it would be quite an anomaly, if not absurd, for this 
 
 '*The statement of facts is from the vice-chancellor's opinion, part of 
 which is omitted.
 
 GALLAGHER V. TRUE AMERICAN PUB. CO. 635 
 
 court to refuse to take account of time as between a judgment 
 creditor and a receiver each claiming priority of right in the real 
 estate of an insolvent corporation, the judgment creditor by reason 
 of the entry of a judgment, which, by the terms of the statute, is a 
 lien upon the land of the defendant upon its entry, and the receiver 
 in behalf of unsecured creditors, asserting that the judgment merely 
 ascertains the amount of the debt due to the creditor, and that 
 no lien thereunder exists upon the land in his possession and to 
 which he holds title by virtue of the statute and order of his ap- 
 pointment. 
 
 The law does take account of parts of days In cases where it is 
 essenntial so to do in order that justice may be done. Johnson v. 
 Pennington, 15 N. J. L. 188. And the exact time of the entry of a 
 judgment may be proved as matter dehors the record. Hunt v. 
 Swayse, 55 N. J. L. 33. 
 
 The doctrine that the law will not take cognizance of the frac- 
 tions of a day is a legal fiction, and it will not be permitted to work 
 injustice.®^ Clark v. Bradlaiigh, L. R. 7 Q. B. 151, per Justice 
 Denman (at p. 153), and per Justice Williams (at p. 154) ; affirmed 
 on appeal, S. C, 8 6. B. Div. 63. 
 
 These views lead to a reversal of the decision of the receiver. 
 I will advise an order that the appellant's judgment be paid by way 
 of preference out of the proceeds of the sale of the defendant cor- 
 poration's real estate in the hands of the receiver.^^ 
 
 ^"See note to Arrowsniiih v. Hormening, 23 Amer. L. Reg. (N. S.) 253 
 (1884). 
 
 ^^Accord: Lemon v. Staats, i Cow. (N. Y.) 592; Biggan v. Merritt, 
 Walk. (Miss.) 430, 12 Am. Dec. 576 (1831) ; Reed & Co. v. Haviland, 38 
 Miss. 323 (i860) ; Bates v. Hinsdale, 65 N. Car. 423 (1871) ; Marvin v. Mar- 
 vin, 75 N. Y. 240 (1878) ; N. Y. Code Civ. Pro., § 1246; Herron v. Walker, 
 69 Miss. 707, 12 So. 259 (1892); German S. Co. v. Campbell, 99 Ala. 249, 
 12 So. 436, 42 Am. St. 55 (1892). Contra: Lord For Chester v. Petrie, 3 
 Doug. 261 (1783) ; Pugh v. Robinson, 1 T. R. 116 (1786) ; Schilstra v. Van 
 Den Heuvcl, 82 N. J. Eq. 155, 90 Atl. 1056 (1913) ; Bulows & Pope v. O'Neall, 
 4 Desaus. Eq. (S. Car.) 394 (1813) ; Rockhill v. Hanna, Fed. Cas. No. 11980, 
 4 McLean (U. S.) 5^4 (1849) ; Emerick v. Garzvood, 1 Browne (Pa.) 20, 4 
 Dall. 321 n., I L. ed. 851 n. (1806) ; IVright v. Mills, 4 H. & N. 488 (1859) ; 
 Bruce V. Vogel, 38 Mo. 100 (1866) ; Mc Clnre v. Roman , p Pa. St. 4^8 (1866) ; 
 Patterson's Appeal, 96 Pa . St. 93 (1880 ). See also In re London & Devon Bis- 
 ctiit Co., L. K. 12 Eq. 190 (1871J. Between a judgment and conveyance priority 
 in time may be shown. Mtirfrce V. Carmack, 4 Yerg. (Tenn.) 270, 26 Am. Dec. 
 232 (1833); Mechanics Bank v. Gorm gn, 8 Watt<; 8j S (Pp..) 304 (1844); 
 Berry v. Clements, 9 Humph. (Tenn.) 312 (1848) ; Bayer's Estate, ?,i Pa. S t. 
 432, 91 Am. Dec. 129 (1866) ; Hoppock v. Ramsey, 28 N. J. Eq. 413 (1877) ; 
 Clark v. Duke, 59 Miss. 575 (1882) ; Hunt v. Sway::e, 55 N. J. L. 33, 25 Atl. 
 850 (1892). Compare Hockman v. Hockman, 93 Va. 455, 25 S. E. 534, 57 Am. 
 St. 816 (1896). As to Mortgages compare Claason's Appeal, 22 Pa. St. 359 
 (1853) ; Hollingszvorth v. Thompson, 5 Harr. (Del.) 432 (1854) ; Hendrick - 
 son ^s A pfeal. 2d Pa. St. 363 (18.SS) with Goetsinger v. Rosenfield,'i6 Wash. 
 "392, 47 Pac. 882, 38 L. K. A. 257 (1897) ; Holliday v. Franklin Bank, 16 Ohio 
 533 (1847) ; Ex parte Stagg, i N. & AIcC. (S. Car.) 405 (1819), where judg- 
 ments are entitled to equal precedence as liens on land, it has been held in 
 some jurisdictions that execution gives priority as to the proceeds of the sale. 
 Adams v. Dyer, 8 Johns. (N. Y.) 347, 5 Am. Dec. 344 (1811) ; Waterman v.
 
 636 jrniiMi-NT 
 
 HUBBARD V. PRESIDF.NT. V.TC, HAMILTON BANK 
 
 Supreme Judicial Court of Massachusetts, 1844 
 
 48 Mass. 340 
 
 Petition by the receivers of the Phoenix Bank to restrain the 
 Hamihon Bank from further ]irosecuting a suit against the Phoenix 
 Bank commenced by attaclimcnt before the appointment of the re- 
 ceivers and to dissolve the attachment. In denying the prayer of 
 the petition the court explained the nature of the lien acquired by 
 attachment as follows.^^ 
 
 Dewey, J. : Originally, an attachment on mesne process seems 
 to have been instituted merely for the purpose of compelling the 
 appearance of the defendant in court to answer to the suit. But 
 as early as 1650, attachments were authorized for the additional 
 purpose of securing the payment of such judgment as might be re- 
 covered in the action. The colonial ordinance of 1650 was thus: 
 "It is hereby ordered by this court, and the authority thereof, that 
 henceforth, all goods attached upon any action shall not be re- 
 leased upon the appearance of the party, or judgment, but shall 
 stand engaged until the judgment, or the execution granted upon 
 such judgment, be discharged." Anc. Chart. 51. The same pro- 
 vision was substantially re-enacted in 1659, with this limitation : 
 "Where execution is not taken out and executed within one month 
 after that judgment is granted, all such attachments shall be re- 
 leased and void in law, unless the court that granted the judgment 
 shall see cause to give further time." Anc. Chart. 193. 
 
 The Statute of 1784, ch. 28, provided that all goods and estate, 
 attached upon mesne process for the security of the debt or damages 
 sued for, should be held for the space of thirty days after final 
 judgment, to be taken on execution. Thus the law continued until 
 the revision of the statutes of the commonwealth, when, by Rev. 
 Stats., ch. 90, sections 23-25, it was enacted, that all real estate and 
 all personal estate, attached upon the original writ, "shall be held as 
 security to satisfy such judgment as the plaintiff may recover," 
 with the former limitation of thirty days after judgment rendered, 
 for the service of the execution. 
 
 Haskin, 11 Johns. (N. Y.) 228 (1814); Reeves v. Johnson, 12 N. J. Law 29 
 (1830) ; Burney v. Boyett, i How. (Miss.) 39 (1834) ; Tilford v. Burnham, 
 7 Dana (Ky.) 109 (1838) ; Rockhill v. Ilanna, 15 How. (U. S.) 189, 14 L. ed. 
 656 (1853) ; Cook V. Dillon, 9 Iowa 407, 74 Am. Dec. 354 (1859) ; Kisterson 
 V. Tate, 94 Iowa 665, 63 N. \V. 350, 58 Am. St. Rep. 419 (1895) ; Canfield v. 
 Broixning, 69 N. J. L. 553, 55 Atl. loi (1903). Contra: Mctzlcr w. Kilgore, 
 3. Pen. &_W. iPaJ 245, 23 Am. Dec. 76 (1831) ; IVils on's AppeaL _QQ p£^SL 
 370 (1879). "As to bankruptcy see Golden v. Blaskopf, 126 Mass. 523 (1879) ; 
 In re Rhoads, 98 Fed. 399 (1890) ; Metcalf v. Barker, 187 U. S. 165, 23 Sup. 
 Ct. 67, 47 L. ed. 122 (1902) ; Clarke v. Larremorc, 188 U. S. 486, 23 Sup. Ct. 
 363, 47 L. ed. 555 (1902) ; Menckey. Rosenberg ,^202 Pa. Sl^j:,3i_5l^tl. 767, 
 90 Am. St. 627n (1902) ; Hillycr v.~LeRoy, 179 N. Y. 369, 72 N. E.^37, 103 
 Am. St. Rep. 919 (1904). 
 
 "Extracts from the opinion of the court only are printed.
 
 HUBBARD V. PRESIDENT, &C. HAMILTON BANK 637 
 
 In this connection it may be proper to notice, that in order to 
 secure the dissolving of an attachment, even in case of the death 
 of the defendant, it has been thought necessary to provide therefor 
 by statute; and that such dissolution of an attachment is limited 
 to cases where some person shall, within one year after the debtor's 
 decease, make application for administration, and obtain it on such 
 application. Stat. 1822, ch. 93, section 6. Rev. Stats., ch. 90, section 
 
 These various statutes, authorizing a party thus to acquire, 
 not indeed a property in the estate attached, but merely a charge 
 or incumbrance, of a peculiar character, seem to have been uni- 
 formdy considered by this court as conferring upon the party thus 
 attaching a right in the nature of a lien. Thus in Grosvenor v. Gold, 
 9 Mass. 210, 211, Sedgwick, J., says, "by an attachment a plaintiff 
 has a lien upon the subject of it provisionally; that is, to the 
 amount of the judgment he may finally recover; and in so much 
 is the absolute property of the defendant diminished." In Petty place 
 V. Dutch, 13 Pick. (Mass.) 392, it was said by the court, "an attach- 
 ment constitutes a lien." So in Arnold v. Brown, 24 Pick. (Mass.) 
 95, the court say, "an attachment constitutes a mere lien on the prop- 
 erty. The effect of the sale" of the same afterwards by the defend- 
 ant "will be to pass the general property incumbered by the attach- 
 ment." In Smith v. Bradstreet, 16 Pick. (Mass.) 264, it was held that 
 an attachment of property would authorize the attaching creditor to 
 appear, as a party in interest, to oppose the probate of a will devis- 
 ing the premises attached to another person in exclusion of the heir 
 at law, as whose estate it was attached. 
 
 That an attachment creates a valid lien, was held also in the 
 District Court of the United States for tlie District of Vermont, in 
 Downer v. Brackett, 5 Law Reporter 392, decided in 1824. It was 
 there ruled that an attachment on mesne process binds the lands or 
 goods attached, during the time fixed by law, as effectually as a 
 judgment binds in England. See also H aught on v. Eustis, 5 Law 
 Reporter 505. In New Hampshire the question has been very re- 
 cently considered in the case of Kittredge v. Warren, 7 Law Re- 
 porter yy, and the doctrine, that an attachment constitutes a lien, 
 fully sustained — in a case where the question raised as to the 
 proper construction to be given to the saving clause in the United 
 States Bankrupt Act of 1841 — in a very able and learned opinion of 
 Chief Justice Parker. 
 
 We are satisfied that under the laws of Massachusetts an at- 
 tachment is a lien or incumbrance upon the property attached. It 
 fastens itself upon the property, and whoever takes the property 
 takes it cum onere. It is constantly spoken of as a lien in the 
 books of reports, in the agreements of the bar, and in the opinions 
 of the bench. It is not a lien in that sense which requires the party 
 to be in possession of the property thus incumbered or charged 
 with it. An attachment of real estate does not require a change 
 of possession. But that does not make it the less a lien in the sense 
 which we attach to that term. Such would be the case of all liens 
 under judgments, where judgments create a lien. The only dis-
 
 5-.S JUDGMENT 
 
 tinction to be taken between the cases of lien by attachment and 
 lien bv a jiuli^incnt is, that in the latter case the debt is ascertamed 
 and tVxed ; the party has proceeded one step further in the series of 
 acts necessary to give effect to his Hen. But does this really make 
 the cases to differ, where nothing subsequently occurs to prevent 
 the plaintiff from proceeding with his action so far as to terminate 
 it bv a judgment in his favor? Where such judgment is actually 
 rendered, it gives effect to the attachment, and everything relates 
 back to the time when the attachment was made. A judgment in 
 England and in New York does not give any actual legal estate m 
 the'' property attached, but a lien that operates to vest such title 
 upon a seizure and transfer on execution; and which, when per- 
 fected, relates back to the time of the judgment.'"^ 
 
 SECTION 9. ACTIONS ON JUDGMENTS 
 
 STEWART V. PETERSON'S EXECUTORS 
 
 Su preme Court of Penksylvania. i8 6q 
 
 63 Pa. St. 230"* 
 
 Sharswood, J. : At common law where a party had recovered 
 a judgment in a personal action, and suffered a year and a day to 
 elapse without taking out execution, he was driven in order to reap 
 the fruits of it to a new action of debt upon the judgment. The 
 statute of Westm. II, 13 Edw. I., St. i, ch. 45, first gave a writ of 
 scire facias in such a case, as was the law previously in real actions : 
 6 Bacon's Abr. tit. "Scire Facias," C. ; Roberts Dig. 240. The right 
 to resort to the former action still remained, and it seerns to be 
 the settled doctrine that it might be maintained as well wnthin the 
 
 '"Rev. Laws ]*^Iass. (1902), ch. 167, § 38. The attachment is effective for 
 thirty days after judgment. Sec. 54. In attaching land the officer need not 
 enter on the land or be within view. Sec. 58; Taylor v. Mixter, 11 Pick. 
 (Mass.) 341 (1831). But no attachment of land or of a leasehold estate shall 
 be valid against a subsequent attaching creditor or purchaser in good faith for 
 value unless the officer deposits a certified copy of the original writ in the 
 registry of deeds for the county in which the land lies. Sec. 59. Attachments 
 may be dissolved by giving bond. Sees. 88, 116. If the land is not attached 
 on 'mesne process, the officer in making levy shall forthwith deposit in the 
 registry of deeds a copy of the execution wath a memorandum that the execu- 
 tion is'in his hands for the purpose of taking the land and no taking shall be 
 valid against a purchaser in good faith for value and without notice, before 
 such copy is deposited. Ch. 178, § 4; Oiven v. Neveau, 128 Mass. 427 (1878) ; 
 Croachcr v. Oesting, 143 Mass. 195, 9 N. E. 532 (1887). 
 
 The practice of attaching real and personal property on mesne process 
 to be held as securitv for the satisfaction of the judgment prevails throughout 
 New England. See Maine Rev. Stat. (1903), ch. 83, §§ 24-79; New Hampshire 
 Laws (1911). ch. 45, §1; Connecticut Gen. Stat. (1902), ch. 56; Vermont 
 Pub. Stat. (1906), §§ 1450-1458, 1782-1791; R. I. Gen. Laws (1909). ch. 301, 
 De Wolf v. Murphy, 11 R. I. 630 (1877). 
 
 "Extract from the opinion of the court.
 
 STEWART V. PETERSON 639 
 
 year as af tervv^ards ; so that even though the party might issue exe- 
 cution, he could still sue an original in debt. It is laid down in 
 the Year Book, 43 Edw. Ill, 2, 6, that "if one recover upon a statute 
 merchant, the statute gives an execution by capias and also against 
 the land, notwithstanding he can have a writ of debt." This au- 
 thority is relied upon as establishing the point by the most respecta- 
 ble of our standard writers: Com. Dig. "Debt," A. 2; 2 Bacon's 
 Abr. tit. "Debt," A. ; Wheaton's Selwyn, 6i6, 7th Amer. Ed. The 
 weight of the American cases is the same way; Clark v. Goodwin, 
 14 Mass. 237 ; Hale v. Angel, 20 Johns. (N. Y.) 342 ; Church v. Cole, 
 I Hill (N. Y.) 645; Denison v. Williams, 4 Conn. 402. It is not a 
 valid objection to the action that at the time it was commenced, the 
 plaintiff could have proceeded by execution upon the original judg- 
 ment. Headley v. Rohy, 6 Ohio 523 ; Kingsland v. Forest, 19 Ala. 
 519; White River Bank v. Downess, 29 Vt. 332; Greathouse v. 
 Smith, 3 Scam. (111.) 541; Davison v. Nehaker, 21 Ind. 334. The 
 reason for this was that at common law the plaintiff could have 
 execution only for the amount of the judgment without interest. 
 In order to recover that he must resort to a new action. Hence our 
 Act of 1700 (i Smith's Laws, 7) provided that "lawful interest shall 
 be allowed to tlie creditor for the sum or value he obtained judg- 
 ment for, from the time the said judgment was obtained till the time 
 of sale or till satisfaction be made." There exists no reason why 
 the same rule, which as we have seen obtains in actions of debt on 
 the judgment, should not apply to proceedings by scire facias, which 
 have so completely and so properly taken their place in this state.^^ 
 
 "■3 Blackstone's Commentaries, 160. In modern English practice an action 
 will lie on a judgment or order which finally establishes a debt. Hodsoll v. 
 Baxter, E. B. & E. 884 (1858) ; In re Boyd, L. R. (1895), i Q. B. 611 ; Godfrey 
 v. George, L. R. (1896), i Q. B. 48; Seldon v. Wilde, L. R. (1910), 2 K. B. 9. 
 And a foreign judgment can be enforced in this way alone. Grant v. East on, 
 L. R. (1883), 13 Q. B. 302; Nouvion v. Freeman, L. R. (1889), 15 App. Cas. i ; 
 Pemberton v. Hughes, L. R. (1899), I Ch. 781. But if an action of debt is 
 brought on a domestic judgment which can be enforced by execution, the 
 plaintiff "will run the risk of having it stayed as an abuse of the process of the 
 court, and probably have to pay the costs." Per Lindley, M. R., in Pritchett 
 V. Englisli and Colonial Syndicate, L. R. (1899), 2 Q. B. 428. The right to 
 sue on a judgment^ is barred by the English statute of limitations in twelve 
 years. Hebblethivaite v. Peever, L. R. (1891), i Q. B. 124; Jay v. Johnstone, 
 L. R. (1893), I Q- B. 25. At common law, a presumption of payment arose 
 after the lapse of twenty years. Miller v. Smith, 16 Wend. (N. Y.) 425 (1836) ; 
 Maxwell v. De Valinger, 2 Pennew. (Del.) 504, 47 Atl. 381 (1900) ; Robert^ 
 y. Powell. 210 Pa. KOA 6n Atl 258 (1905) ; Horn V. Sayer, 184 111. App. 326 
 (1913), which might be rebutted by competent evidence, Johnson v. Tuttle, 
 9 N. J. Eq. 365 (1853) ; Walker v. Robison, 136 Mass. 280 (1884). 
 
 Scire Facias 
 
 "In Foster, sci. fa. 2, it is said that scire facias post annum et diem 
 lay at common law in real actions and on a writ of annuity, where the plain- 
 tiff did not sue out execution on his judgment within a year and a day. In 
 personal actions, prior to the statute of ^A^estminster II (13 Edw. I, ch. 45), 
 if the plaintiff did not have execution within a year and a day, he was put to a 
 new action upon his judgment. This statute, however, extended the remedy 
 by scire facias to personal actions, and its provisions have been re-enacted 
 generally in the United States, though the new acts have generally extended
 
 640 junr.Mr.NT 
 
 AMES V. HOY 
 
 Supreme Court of California, 1S59 
 
 12 Cal. II 
 
 Action of debt on a decree for a sum of money obtained by 
 the plaintiff aj^ainst the defendant in the District Court of Nevada 
 County. The case was tried without a jury, the plaintiff had judg- 
 ment and defendant appealed. '^^ 
 
 Baldwin, J. : Plaintiff recovered a judgment in the district of 
 Nevada County, In October, 1854, for a sum of money. The judg- 
 
 tiie time ^\•ithin which execution may issue without revival by scire facias. 
 Treatinp: of the methods of executing judgments, Bhickstone says (book 3, p. 
 421) : 'But all these writs of execution must be sued out within a year and a 
 day after the judgment is entered; otherwise the court concludes prima facie 
 that the judgment is satisfied and extinct. Yet, however, it will grant a writ 
 of scire facias in pursuance of St. Westm. II, 13 Edw. i, ch. 45, for the 
 defendant to show cause why the judgment should not be revived and execu- 
 tion had against him, to which the defendant may plead such matter as he 
 has to allege in order to show why process of execution should not be issued ; 
 or the plaintiff may still bring an action of debt founded on his dormant 
 judgment, which was the only method of revival allowed by the common law.' 
 It will thus be seen that the statute of Westminster II served to extend to 
 personal actions the remedy by scire facias to revive a dormant judgment, 
 which theretofore existed at common law only as respected real actions and 
 writs of annuity. It will be observed from the quotation from Blackstone 
 that the judgment, in default of execution within a year and a day, did not 
 become 'dead,' but merely dormant. It still subsisted as a debt, and could 
 still be the foundation of a new action of debt, or, at the election of the 
 plaintiff, be revived by scire facias,^ so as to again become a lien tipon which 
 execution might issue. And the writ of scire facias to revive a judgment was 
 not a new action, but a continuation of the old one. Eld red v. Hazlet t,_^%V2.. 
 St. 16." Per Keller, J., in Davis v. Davis, 174 Fed. 786 (1909). 
 
 In some states the judgment on scire facias is that plaintiff have execu- 
 tion of the judgment described in the writ. Tindall v. Carson, 16 N. J. L. 94 
 (1837); Bertram v. Jl'aterman, 18 Iowa 529 (1865); Houston v. Emery, 76 
 Tex. 282, 13 S. W. 264 (1890) ; Rogers v. Hollingszvorth, 95 Tenn. 357, 32 S. 
 W. 197 (1895) ; Trimble v. Elkln, 88 Mo. App. 229 (1901). In others a new 
 judgment is entered for the amount then due upon the original judgment with 
 interest. "The judgment is quod recuperet instead of a bare award of execu- 
 tion." Dirff y. Wynkooty, 74 Pa. St. .^oo (1873) ; Kistlcr v. Mosser, 140 Pa. St. 
 367, 2irStT7^357 (1891) ; Slayton w. S'milie, 66 Vt. 197, 28 Atl. 871 (1894); 
 Gregory v. Perry, yi S. Car. 246, 50 S. E. 787 (1904). 
 
 In a number of states the writ of scire facias is abolished and a judg- 
 ment is revived by an action under the code. N. Y. Code Civ. Pro., §§ 1376- 
 78 (1913) ; Wallace v. Swinton, 64 N. Y. 188 (1876) ; Haupt v. Burton, 21 
 Mont. 572, 55 Pac. no, 69 Am. St. Rep. 698 (1898) ; Wilson v. McCornack, 
 10 Okla. 180, 61 Pac. 1068 (1900) ; Davidson v. Hunter, 22 Utah 117, 61 Pac. 
 556 (1900) ; Scars v. Kilbourne, 28 Wash. 194 (1902). 
 
 Where a judgment is sued on and a second judgment recovered the first 
 judgment is not merged. Preston v. Perton, Cro. Eliz. 817 (1600) ; Mumford 
 V. Stacker, i Cow. (N. Y.) 178 (1823) ; Weeks v. Pearson, 5 N. H. 324 (1831) ; 
 Stockwcll v. Walker, 3 Ind. 215 (1851) ; Lawton v. Perry, 40 S. Car. 255, 18 
 S. E. 861 (1893) ; Kelly v. Hamblen, 98 Va. 383, 36 S. E. 491 (1900) ; Springs, 
 V. Pharr, 131 N. Car. 191, 42 S. E. 590, 92 Am. St. 775 ( 1902). Contra : Gould 
 V. Haxden, 63 Ind. 443 (1878). Compare Collinawood v. Cars on. 2 Watts & 
 S^JTa.) 220 (1841) ; C ujSter v. Dctterer. j^^-Ms 8 1 S. (Pa.)~28 (1841), with 
 Furshtv. Overdeer, T, Watts" & S. (l la.) 470 (1842). 
 
 '''The statement of facts is abridged and the arguments of counsel omitted.
 
 AMES V. HOY 641 
 
 ment was in an equitable suit brought to dissolve a copartnership 
 and settled the firm accounts, and for a decree for the balance due. 
 The records of Nevada were consumed by fire before the institution 
 of this suit, and the papers and minutes of the court evidencing this 
 judgment destroyed. An action at law is now brought to recover the 
 amount of this judgment or decree. Several questions are made : 
 
 I. That suit can not be maintained in this state on a domestic 
 judgment. At common law, actions could be so maintained. ( i Ch. 
 PI. 103-4.)^* There is nothing in our statute which divests the right ; 
 and the policy and inconvenience, suggested by the appellant, applied 
 as well in England as here. The chief argument is, that there is no 
 necessity for a right of action on a judgment, inasmuch as execu- 
 tion can be issued to enforce the judgment already obtained, and 
 no better or higher right or advantage is given to the subsequent 
 judgment. But this is not true in fact, as in many cases it may be 
 of advantage to obtain another judgment in order to save or prolong 
 the lien ; and in this case the advantage of having record evidence 
 of the judgment is sufficiently perceptible. The argument that a de- 
 fendant may be vexed by repeated judgments on the same cause of 
 
 "At common law a judgment for a sum certain is a debt of record and 
 an action of debt will lie thereon as soon as recovered irrespective of the 
 plaintiff's right to take out execution. Barracliff v. Grisconi, Coxe, _N. J. L. 
 193 (1793) ; Clark V. Goodzvin, 14 Mass. 22,7 (1817) ; Denison v. IVilliams, 4 
 Conn. 402 (1822) ; Hale v. Angel, 20 Johns. (N. Y.) 342 (1823) ; Richards v. 
 B ickley, 13 Serg. & R- (PaJ,j95 (1825) ; Goodrich v. Colvin, 6 Cow. (N. Y.) 
 397 (1825; ; ^rnlth v. Mumford, 9 Cow. (N. Y.) 26 (182S) ; Tindall v. Carson, 
 16 N. J. L. 94 (1837) ; Church v. Cole, 1 Hill (N. Y.) 645 (1841) ; Millard v. 
 Whifaker, 5 Hill (N. Y.) 408 (1843); Lockwood v. Barefield, 7 Ga. 393 
 (1849); McDonald v. Butler, 3 Mich. 558 (1855); White River Bank v. 
 Doivner, 29 Vt. 332 (1857) ; Ives v. Finch, 28 Conn. 112 (1859) ; Griffin v. 
 Eaton, 27 111. 379, 81 Am. Dec. 233 (1862) ; O'Neal v. Kittredge, 85 Mass. 470 
 (1862) ; Simpson V. Cochran, 23 Iowa 81, 92 Am. Dec. 410 (1867) ; Burnes v. 
 Simpson, 9 Kans. 658 (1872) ; Linton v. Hurley, 114 Mass. 76 (1873) ; Wilson 
 v. Hatfield, 121 Mass. 551 (1877) ; Boyd v. Mann, 9 Baxt. (Tenn.) 349 (1878) ; 
 Becknell v. Beckncll, no Ind. 42, 10 N. E. 414 (1886) ; Copeland v. Todd, 30 
 S. Car. 419, 9 S. E. 341 (1888) ; Morse v. Pearl, 67 N. H. 317, 36 Atl. 255, 68 
 Am. St. 672 (1892); Hnrtrr V. Hnrter. 4 Pa. D. R. 211 ClSo';') : Harris V. 
 Steiner, 30 Misc. Rep. 624, 62 N. Y. S. 752 (1900) ; Kelly v. Hamblen, 98 Va. 
 383, 36 S. E. 491 (1900) ; Treat v. Wilson, 65 Kans. 729, 70 Pac. 893 (1902) ; 
 Town of Fletcher v. Hickman, 165 Fed. 403 (1908 Colo.) ; Ratchford v. Cov- 
 ington County Stock Co., 172 Ala. 461, 55 So. 806 (1911) ; Bashor v. Beloit, 
 20 Idaho 592, 119 Pac. 55 (1911). In some jurisdictions it has been held that 
 the creditor does not have an absolute right to sue on his judgment without 
 showing some special reason or necessity therefor. Pitccr v. Riissel, 4 Ore. 
 124 (1871) ; Stevens v. Stone, 94 Tex. 415, 60 S. W. 595 (1901) ; Succession of 
 Beckham, 16 La. Ann. 352 (1861) ; Solen v. Virginia & T. R. Co., 15 Nev. 313 
 (1880). In Kentuckj- a second judgment can not be obtained, the remedy is 
 to enforce the original judgment. Cundiff v. Trimble, 52 S. W. 940, 21 Ky. 
 L. 657 (1899). And in a number of states by statute or code an action can 
 not be brought on a domestic judgment without leave of court upon cause 
 shown. N. Y. Code Civ. Pro., § 1913; Shuman v. Strauss, 52 N. Y. 404 (1873) ; 
 Partridge v. Monihan, no N. Y. S. 539, 59 Misc. 234 (1908) ; Rando v. Na- 
 tional Park Bank of New York, 137 App. Div. 100, 121 N. Y. S. 1048 (1910) ; 
 McDonald v. Dickson, 85 N. Car. 248 (1881) ; Cole v. Mitchell, 77 Wis. 131, 
 45 N. W. 948 (1890) ; Merchants' Nat. Bank v. Gaslin, 41 Minn. 552, 43 N. W. 
 483 (1889) ; Wilson v. Tucker, ids Iowa 55, 74 N. W. 908 (1898) ; Brock v. 
 Kirkpatrick, 60 S. Car. 2^2, 38 S. E. 779, 85 Am. St. 847 (1900). 
 41 — Civ. Proc.
 
 642 JUDGMENT 
 
 action is answered \>y the suggestion that an effectual remedy to the 
 party against tliis annoyance is the payment of the debt. 
 
 2. It is also argued that the destruction of the book containing 
 the judgment is the destruction of the judgment itself; so that the 
 primary evidence of the judgment being removed, no other proof of 
 it is admissible. We think that this position is alike indefensible in 
 reason and on authority."^ 
 
 3. The last objection is, that no action can be maintained at 
 law upon a decree in equity for a specific sum of money. The 
 action in the case before us may be considered to be in debt, or as 
 an action in the nature of the action of debt, under the old system. 
 This action was proper whenever a sum liquidated and made definite 
 by contract or judgment was recoverable, and we are not able to 
 perceive why a recovery in equity for a certain and ascertained 
 amount is not as legitimate a basis for action as a judgment at law. 
 Some of the most respectable courts in the Union have so adjudged, 
 and we think properly. See 15 Mass. 196, and other cases cited 
 therein-^*^ 
 
 Judgment affirmed. 
 
 "Accord: Stockhridge v. West Stockbridge, 12 Mass. 400 (1815), semhle; 
 Jackson ex dem Taylor v. Cullum, 2 Blackf. (Ind.) 228, 18 Am. Dec. 158 
 (1829) ; Neivcomb v. Drummond, 4 Leigh (Va.) 57 (1832) ; Jackson ex dem. 
 M'Fail V. Craiiiords, 12 Wend. (N. Y.) 533 (1834) ; MUt hnore v. Miltimor e, 
 40 Pa. St. 151 (1861) ; Mason v. Bull, 26 Ark. 164 (1870^; Parry v. U'alscr, 57 
 MorT59"(i874) ; Mandcville v. Reynolds, 68 N. Y. 528 (1877); Richard's 
 Appeal, 122 Pa. St. 547, 15 Atl. 903 (1888). Contra: Walton v. McKesson, 64 
 K. Car. 77 (1870), and see Cox v. Stout, 85 Ind. 422 (1882). General!}', a court 
 determines the authenticity of its own records by inspection, Eiscnhart v. 
 SJaymaker jAStrg. & R. (Pa.) 153 (1826) ; Anderson v. Dudley, $ Call CVaTJ 
 529 \'i^i)\rrcat V. Maxwell, 82 Maine 76, 19 Atl. 98 (1889).^ The issue on 
 the plea of nul ticl record must be tried by the court, not the jury. White v. 
 Elkin, 6 Blackf. (Ind.) 123 (1842) ; Carter v. IVilson, i Dev. & Bat. (N. Car.) 
 362(1835). Compare 0-a«.'/ori V. 5"i»r??!o»/o«, 7 Port. (Ala.) 110(1838). If 
 the judgment is rendered by a co-ordinate court of the same state it should be 
 proved by a transcript or exemplification in accordance with the local law. 
 Smith V. Frost, 5 Hill (N. Y.) 431 (1843) ; Kinsey v. Ford, 38 Barb. (N. Y._) 
 195 (1862) ; N. Y. Code Civ. Pro., § 939; Dickinson v. Chesapeake & Ohio 
 R. Co., 7 W. Va. 390 (1874). Judgments of sister states must be authenticated 
 in accordance with the act of Congress of May 26, 1790; U. S. Comp. Stat. 
 (1913), § 1519. See Pa. P. & L. Dig, of Dec. 10,080; Santa Clara Valley Mill 
 & Lumber Co. v. Prescott, 127 111. App. 644 (1906) ; Flammond v. Knox, 125 
 App. Div. 9, 109 N. Y. S. 367 (1908) ; Flack v. Andrews, 86 Ala. 395, 5 So. 452 
 (1888) ; Davis v. Davis, 174 Fed. 786 (1909). 
 
 "'To constitute a cause of action the judgment must be final, personal, un- 
 satisfied and for the payment of money. Seligman v. Kalkman, 17 Cal. 152 
 (i860); Brown V. Bridge, 106 Mass. 563 (1871) ; Smith v. Kander, 58 Mo. 
 App. 61 (1894) ; Pratt v. Jones, 22 Vt. 341, 54 Am. Dec. 80 (1850) ; Hutchin- 
 son V. Gillespie, II Exch. 798 (1856). 
 
 In England, foreign and colonial decrees in chancery for the payment of 
 money could be enforced by actions at law. Sadler v. Robins, i Camp. 253 
 (1808); Henley V. Soper, 8 B. & C. 16 (1828), but not domestic decrees, 
 Carpenter v. Thornton, 3 B. & Aid. 52 (1819) ; Bailey v. Bailey, L. R. (1884), 
 13 Q. B. Div. 855. In a recent case, however, an order for the payment of 
 money made in the Chancery Division was enforced by an action in the 
 King's Bench Division of the High Court. Seldon v. Wilde, L. R. (1910), 2 
 K. B. Q. In the United States, "in all cases where an action of debt can be 
 maintained upon a judgment at law to recover a sum of money awarded by
 
 STEPHENS V. HOWE 643 
 
 BENJAMIN F. STEPHENS v. MANLEY HOWE 
 Supreme Judicial Court of Massachusetts, 1879 
 
 127 Mass. 164'' 
 
 Lord J.: This is an action against Manley Howe and Henry 
 R. Stevens, brought upon a judgment recovered in the Circuit Court 
 of the United States for the Second Circuit against the defendants, 
 who were formerly partners. Howe alone defends. No question 
 is made as to the jurisdiction of the court, in which the judgment 
 was recovered, over the parties to the suit and of the subject matter 
 of it. The parties defendant appeared and defended. So far as we 
 understand the offer of evidence, the rejection of which is com- 
 plained of, it was an offer to prove that, before judgment, the claim 
 in suit had been wholly or in part paid by Stevens. Of course, such 
 evidence is incompetent while the judgment remains unreversed.^* 
 
 Exceptions overruled. 
 
 SAVAGE V. EVERMAN 
 
 SuPREMJ rpTTT^T nT7 Pftvjtj<;vtvatvjta^ 1 8/2 
 70 Pa. St. 315 
 
 Error to the District Court of Philadelphia. 
 
 This was an action of debt brought by John W. Everman against 
 John R. Savage and others trading as Savage, Martin & Co. on a 
 judgment by default in the Supreme Court of New Jersey for 
 
 such judgment, the like action may be maintained upon a decree in equity, 
 provided it is for a specific amount and that the records of the two courts 
 are of equal dignity and binding obligation." Nations v. Johnson, 24 How. 
 (U. S.) 195, 16 L. ed. 628 (i860) ; Pennington v. Gibson, 16 How. (U. S.) 65, 
 14 L. ed. 847 (1853) ; Evans v. Tnt.p.ni r\ '^ex^, ^ R. (Pa.) 2 ^2. 11 Am. Dec. 
 717 (1823) ; Thrall v. Waller, 13 Vt. 231, 27 Am. Dec. 592 (1841) ; Warren v. 
 McCarthy, 25 111. 95 (i860) ; Dubois v. Dubois, 6 Cow. (N. Y.) 494 (1826) ; 
 Mutual Life Ins. Co. v. Newton, 50 N. J. L. 571, 14 Atl. 756 (1888). Contra: 
 Hugh V. Higgs, 8 Wheat. (U. S.) 697, 5 L. ed. 719 (1823) ; Boyle v. Schindel, 
 52 Md. I (1879). 
 
 ""Part of the opinion is omitted. 
 
 °*"To an action on a judgment or decree, no defense should be enter- 
 tained which might have been interposed to defeat the original action." 2 
 Freeman on Judgments, § 435; Middleton v. Hill, Cro. Eliz. 588 (1597); 
 Biddlc V. Wilkins, i Pet. (U. S.) 686, 7 L. ed. 315 (1828) ; Brown v. Trulock, 
 4 Blackf. (Ind.) 429 (1837) ; Crawford v. Simonton, 7 Port. (Ala.) no 
 (1838) ; Jackson v. Fletcher, Morris (Iowa) 230 (1843) ; Tap pan v. Heath, 16 
 N. H. 34 (1844) ; Dickson v. Wilkinson, 3 How. (U. S.) 57, il L. ed. 491 
 (184s); Bird V. Smith, 34 Maine 63, 56 Am. Dec. 635 (1852); Guinard v. 
 Heysinger, 15 111. 288 (1853) ; Burton v. Stezvart, 11 Ind. 238 (1858) ; Morris 
 V. Boomer, 16 Wis. 547 (1863); Poorman v. Mitchell, 48 Mo. 45 (1871) ; 
 McAllister v. Singer Mfg. Co., 64 Ga. 622 (1880) ; Morris v. Curry, 41 Ark. 
 75 (1883) ; Kitteredge v. Martin, 141 Mass. 410, 6 N. E. 95 (1886) ; Barton v. 
 ikadclyffe, 149 Mass. 275, 21 N. E. 374 (1889) ; Hartcr v. Shull, 17 Colo. App. 
 162, 67 Pac. 911 (1902) ; Stihvell v. Smith, 219 Pa. 36, 61 Atl. 910 (1907).
 
 644 JUDGMENT 
 
 $810.47. The (Icfcndanls pleaded "Nil debucnint," "Nul ticl reeord," 
 "Pavinent with leave" and a special plea, and on the trial before 
 Hare, P. J., ollered to prove that, before the commencement of the 
 suit, it was aijrced between Everman and the defendants, who were 
 all residents of Pennsylvania, that certain real estate of the defend- 
 ants in New Jersey should lie sold at sheriit's sale and Everman 
 should purchase and take title to the same in full satisfaction and 
 discharge of the promises and sums of money due by the defendants. 
 Accordingly Savage went into New Jersey, accepted service of a 
 summons for himself and his partners, judgment was obtained, the 
 same set forth in the declaration; and a sheriff's sale had at which 
 plaintiff's became the purchaser. The court rejected the offer and 
 sealed a bill of exceptions. A verdict was rendered for the plaintiff 
 for $862.24 and defendants took out a writ of error."^* 
 
 SiiARSWooD, J. : Anciently, it seems to have been considered that 
 nothing could be pleaded to an action on a judgment which was 
 matter in pais and not of record. Thus even payment w-as held (30 
 Eliz.) not to be a good plea. Ordway & Perote's Case, 2 Leon. 213. 
 Of course accord and satisfaction fell within the same category. 
 Littleford V. LeMayyi, Cro. Jac. 579. For remedy, it was enacted 
 by the statute, 4 Anne, ch. 16, section 12, that "where any action shall 
 be brought upon any single bill, or where action of debt or scire 
 facias shall be brought upon any judgment, if the defendant hath 
 paid the money due upon such bill or judgment, such payment shall 
 and may be pleaded in bar of such action or suit." This statute, 
 as to this and some other sections, was reported by the judges of 
 the Supreme Court as in force in this state. 3 Binn. (Pa.) 625 ; Rob- 
 erts' Dig. 45. There is a similar statute in New Jersey. Gulick v. 
 Loder, i Green (N. J.) 68. It is said in 2 Saund. on PI. & Ev. 115, 
 that accord and satisfaction can not be pleaded under this statute. 
 He cites 4 Aloore 165, but that must be a mistake, as it contains noth- 
 ing to the point. Whether under this statute or at common law, the 
 American authorities w^ithout a single exception that I can find, 
 maintain the contrary doctrine — that accord and satisfaction is a 
 good defense to an action or other proceeding on a judgment. JVit- 
 terhy v. Mann, 11 John. (N. Y.) 568; Boyd v. Hitchcock, 20 John. 
 (N. Y.) 76; Le Page v. McCrea, i Wend. (N. Y.) 164; Brown v. 
 Feeter, 7 Wend. (N. Y.) 301; Evans v. Wells, 22 Wend. (N. Y.) 
 224, 341 ; La Farge v. Herter, 11 Barb. (N. Y.) 159; Campbell v- 
 Booth, 4 Gill. 29; McCullough v. Franklin Coal Co., 21 Md. 256; 
 Reid V. Hihbard, 6 Wis. 175 ; Jones v. Rohcom, 3 Ind. 327; Farmers' 
 Bank V. Groves, 12 How. (U. S.) 51. In the recent case of Maute 
 V. Gross, 6 P. F. Smith (Pa.) 250, it was assumed, apparently with- 
 out question, that such was the law in this state. There the defend- 
 ants confessed a judgment in favor of the plaintiffs under a cotem- 
 poraneous agreement by them, that they would accept in satisfaction 
 lubricating oil of a certain quality, according to sample. The only 
 question was, whether oil of that quality had been furnished, and an 
 
 "aTlie statement of facts is abridged and the arguments of counsel and 
 part of the opinion of the court omitted.
 
 SAVAGE V. E\T:RMAN 645 
 
 isstte had been directed to determine that fact. It is certainly within 
 the spirit, if not the letter of the statute of 4 Anne, to admit 
 as a good plea in bar whatever in law or equity amounts to a dis- 
 charge and satisfaction of the debt secured by tlie judgment. A text 
 writer of great respectability so states it: 2 Troubat & Haly, 13, 
 edition of 1853. The simple, intelligible and well-settled rule on this 
 subject is, that whenever a defense exists, v/hich has arisen since the 
 judgment, and which could not tlierefore have been available at the 
 time it was rendered, it may be set up in any subsequent proceeding. 
 Cardesa v. Humes, 5 Serg. & R. (Pa.) 65; Thatcher v. Gammon, 12 
 Mass. 267. 
 
 Upon this principle the evidence offered by the defendants ought 
 to have been received. It v/as admissible under the plea of pay- 
 ment with leave to give the special matter in evidence. As no 
 objection was made, we are bound to presume that due notice was 
 given or was vi^aived. The matter contained in tlie offer could not 
 have availed the defendants as an answer to the demand of the plain- 
 tiff in the original suit. All that took place before the rendition of 
 the judgment was a mere accord witliout satisfaction. An agreement 
 to accept something collateral to the debt is witliout consideration, 
 and therefore not binding. What made it effectual was actual ac- 
 ceptance by the plaintiff, and this was not until after the judgment 
 Hearn v. Kiehl, 2 Wright. (Pa.) 147. Here, by the accord, a house 
 and lot was agreed to be accepted in satisfaction. Afterwards, and 
 in pursuance of this accord, it was actually conveyed to the plaintiff 
 and accepted by him. It matters not how the title was conveyed, if 
 it was under and in pursuance of the original accord. 
 
 Judgment reversed.^^ 
 
 ^Conner v. Pennington, I Del. Ch. 177 (1821) ; Brilcy v. Sugg, i Dev. & 
 B. Eq. (N.Car.) 366, 30 Am. Dec. 172 (1836) ; La Farge v. Herter, 9 N. Y. 241 
 (1853) ; Lyon V. Northrup, 17 Iowa 314 (1864) ; Thorn v. Wilson, 27 Ind. 370 
 (1866) ; IVolcott V. Ensign, 53 Ind. 70 (1876) ; Potter v. Hartnett, 148 Pa. 
 15, 23 Atl. 1007 (1892) ; Lofland v. McDaniel, i Penn>-w. (Del.) 416, 41 Atl. 882 
 (1898) ; Roberts v. Pratt, 158 N. Car. 50, 72, S. E. 129 (1911). 
 
 A payment of part of the amount due upon a money judgment under a 
 parol agreement that it should operate as a satisfaction in full will not dis- 
 charge a judgment, DeJand v. Hiett, 27 Cal. 611, 87 Am. Dec. 102 (1865); 
 Moss V. Shannon, i Hilton (N. Y.) 173 (1856) ; Knight v. Cherry, 64 Mo. 513 
 (1877) ; Mc Arthur v. Dane, 61 Ala. 539 (1878) ; Haggin v. Clark, 61 Cal. I 
 (1882) ; Weber v. Couch, 134 Mass. 26, 45 Am. Rep. 274 (1883) ; Fletcher v. 
 Wurglcr, 97 Ind. 223 (1884) ; Madcley v. White, 2 Colo. App. 408, 31 Pac. 181 
 (1892). Otherwise where there is a sealed release, Braden v. Ward, 42 N. J. 
 L. 518 (1880); Beers v. Hendrickson, 45 N. Y. 665. And there are other 
 authorities which hold that part pajment of a judgment, by way of compro- 
 mise, may under all the circumstances and equities of the case amount to an 
 accord and satisfaction. Harper V. Graham, 20 Ohio 105 (1851) ; Booth v. 
 Campbell, 15 Md. 569 (1859) ; Clay v. Hoysradt, 8 Kans. 74 (1871) ; Case v. 
 Flawkins, 53 Miss. 702 (1876) ; Miller v. Lilly, 84 Ind. 333 (1882) ; Hcndrick__ 
 V Thomas "inf) Pn, -y ? (1884) ; Neal V. Handley, 116 111. 418, 6 N.~E."45, 56 
 AmrRep. 784 (1886)"; Pinson v. Puckctt, 35 S. Car. 178, 14 S. E. 393 (1891) ; 
 Fozvler v. Sm i th. 13 3 Pa St 630, 2^ Atl. 744 (1893); Brown v. Kern, 21 
 wash. 211, ST'Pac. 798 (1899). 
 
 As to payment by joint party or third person see 2 Black on Judgments 
 (2d ed.), § 995.
 
 CHAPTER VI 
 
 Execution 
 
 SECTION I. ISSUING OF THE WRIT 
 
 "Execution, Executio, and signifietli in law the obtaining of 
 actual possession of anything acquired by judgment of law, or by 
 fine executory levied, whether it be by the sheriff or by the entry 
 of the party, whereof you shall read more hereafter." Coke on Lit- 
 tleton, 1543.^ 
 
 "A writ of execution is a written command or precept to the 
 sheriff or ministerial officer, directing him to execute the judgment 
 of the court. It is the command of the court addressed to the min- 
 isterial ofificer in writing, and under the seal of the court, containing 
 with more certainty the command of the court, and expressed with 
 more solemnity, than if uttered verbally by the court. It is neverthe- 
 less the command of the court to the officer to proceed and execute 
 the judgment of the court." Sutliff, J., in Kelly v. Vincent, 8 Ohio 
 
 St. 415 (1858). 
 
 New York Code of Civil Procedure, section 1364. 
 
 "There are four kinds of execution, as follows : 
 
 "i. Against property. 
 
 "2. Against the person. 
 
 "3. For the delivery of the possession of real property with or 
 without damages for withholding the same. 
 
 "4. For the delivery of the possession of a chattel, with or with- 
 out damages for the taking or detention thereof. 
 
 "An execution is tlie process of the court, from which it is 
 issued."^ 
 
 *3 Blackst. Comm. 412; Bacon's Abridgement, "Execution"; Comyn's Di- 
 gest "Execution." Tidd's Practice (gth ed.) 993, 11 A. & E. Encyc. of Law 
 (2d ed.) 609; 17 Cyc. 21. 
 
 ''Execution issues from the court in which the judgment is given, Memo- 
 randum, Cro. Car. 34 (1626) ; Chandler v. Colcord, i Okla. 260, 32 Pac. 330 
 (1893) ; Willamette Real Estate Co. v. Hendrix, 28 Ore. 485, 42 Pac. 514, 52 
 Am. St. 800 (1895) ; Garnett v. Goldman, 39 Okla. 516, 135 Pac. 410 (1913), 
 and, in the absence of a statute or rule of court to the contrary without 
 special leave of court, Miller v. Mt7forc?. _2_Serg. & R. (Pa.) 35 (1815) ; 
 Little v. Cook, I Aikens (Vt.) 363, 15 AmTT5ec. 698 fiSi^) ; Union Bank v. 
 McChing, 9 Humph. (Tenn.) 91 (1848) ; Irons v. McQu e wan, 27 Pa. S t. 196, 
 67 Am. Dec. 456 (1856) ; Carpenter v. Vanscoten, 20 InaTso (1863) ; Dorn v 
 Howe, 59 Cal. 129 (1881) ; Ensley v. McCorkle, 74 Ind. 240 (1881) ; Maloney 
 I- Real Estate B. & L. Assn., 57 Mo. App. 384 (1894) ; Horrman v. Sherin, 
 8 S. Dak. 36, 65 N. W. 434, 59 Am. St. Rep. 744 (1895) ; Bludworth v. Poole, 
 21 Tex. Civ. App. 551, 53 S. W. 717 (1899). In England, leave to issue 
 execution is required where six years have elapsed since the judgment and in 
 certain other cases as provided in Order XLII, rule 2^ of the Supreme Court. 
 By the New York Code of Civil Procedure, § 1375, executions are of course 
 within five years after judgment, after that time there must be an order of 
 court granting leave, §§ 1377, 1381. So also, an order is required for an exe- 
 cution against wages, § 1391 ; Reibstein v. Stem, 140 App. Div. 519, 125 N Y 
 S. 508 (1910) ; Neu v. Fox, 151 App. Div. 17, 135 N. Y. S. 208 (1912). 
 
 The plaintiff alone, or his attorney, has a right to sue out and control 
 the execution Osgood & Co. v. Broujn, Freem. Ch. (Miss.) 392 (1839); 
 
 647
 
 64S EXECUTION 
 
 TRUKTT AND GILL v. LEGG 
 Court or ArvEAi.s of IMarylanu, 1S70 
 
 32 Md. 147 
 
 Appeal from the Circuit Court for Anne Arundel County. This 
 was an action of assumpsit brou.cjht by the appellants against the 
 appellee. On the 24th of April, 1S67, during tlie April term of the 
 court below, a verdict was rendered for the plaintiffs, but no judg- 
 ment, absolute or nisi, was rendered or entered thereon against the 
 defendant. On the twenty-sixth day of April, 1867, the defendant 
 filed a motion, and reasons for a new trial, and no day appears to 
 have been fixed for its hearing, nor rule upon the plaintiffs to show 
 cause against it, at any prescribed time. The case thus standing, 
 and several terms having intervened, on the loth of March, 1868, 
 a writ of execution was issued by order of the plaintiffs. On motion 
 of 'lie defendant the court below ordered the execution quashed and 
 plaintiff's excepted.^ 
 
 Stewart, J. : After the verdict, the plaintiffs who had pre- 
 vailed were entitled at once to have judgment nisi causa, and if 
 they moved to that effect the judgment would have become final 
 after four days, unless the defendant moved for a new trial, or in 
 arrest of judgment, within that time, which would suspend the 
 iudgment until that motion was disposed of.* But as the plaintiffs 
 made no motion to that eft'ect, and no judgment was in fact entered, 
 the verdict still continued as such, and the expiration of the term 
 could not give to it the force and eft'ect of a judgment. Non constat, 
 in tlie absence of such motion on the part of the plaintiffs they 
 desired judgment to be entered on the verdict, as they might also 
 move for a new trial, or other action, upon the verdict. The judg- 
 ment rendered on the verdict is the conclusion of the law upon the 
 facts found by the jury, and is the act of the court, and the clerk 
 in entering it, records it as the judgment of the court, and has no 
 authority to enter it without the sanction of the court. After the 
 iudgment becomes final, and not before, execution may be issued 
 
 Ex parte Hampton, 2 Greene (Iowa) 137 (1849) ; Watt v. Alvord, 25 Ind. 533 
 (1865) ; Remington Paper Co. v. O' Dougherty, 81 N. Y. 474 (1880) ; Wills v. 
 Chandler, 2 Fed. 273, I McCrary 276 (1880); State v. Pilsbitry, 35 La. Ann. 
 408 (1883) ; Cortes v. Superior Court, 86 Cal. 274, 24 Pac. ion, 21 Am. St. 37 
 (1890) ; Galle v. Tode, 148 N. Y. 270, 42 N. E. 673 (1896). But an unauthor- 
 ized execution may be ratified and then the irregularity will be deemed to 
 have been waived. Clarkson v. White, 4 J. J. Marsh (Ky.) 530, 20 Am. Dec. 
 229 C1830) ; Lerch v. Gallup, 67 Cal. 595, 8 Pac. 322 (1885); Johnson v. 
 Murray, 112 Ind. 154, 13 N. E. 273, 2 Am. St._ Rep. 174 (1887). 
 
 ^The statement of facts is from the opinion of the court, part of which 
 is omitted. 
 
 *At common law, judgment is suspended pending a motion for new trial 
 and an execution can not be issued until the motion is disposed of. 2 Tidd's 
 Practice C9th ed.) 903, 930; Bar re v. Affl eck, 2 Yeate s (Pa. ) 274 (1708) ; 
 Danielson v. Northivestern Fuel Co., 55 l^YdT 49 (i«93), but in many of the 
 states by .statute or rule, execution will not await the disposition of a motion 
 for new trial unless a stay is ordered. Church v. Goodin, 22 Kans. 527 (1879) ; 
 Ex parte Craig, 130 Mo. 590, 32 S. W. 1121 (1895) ; Erie R. Co. v. Ackerson, 
 3.^N. J. L. 33 (1868).
 
 TRUETT V. LEGG 649 
 
 against the defendant, but in order to charge him in execution, or 
 bind his property, or proceed against him by action of debt, or 
 have scire facias on the judgment, it is necessary that the judgment 
 should be entered of record. 2 Tidd's Practice, 964, 975. The 
 record in this case shows no such judgment, and therefore the 
 execution was improvidently issued, and was properly quashed by 
 the court. ^ 
 
 Judgment affirmed. 
 
 ^To support an execution there must be a valid and subsisting judgment 
 or decree. Jones v. Pope, i Saund. 2>1 (1666) ; Stampe v. Kinsey, 2 Show. 494 
 (1686) ; Parker v. Frambes, 2 N. J. L. 156 (1807) ; Lofton v. Champion, 2 
 N. J. L. 157 (1807) ; Albee v. Ward, 8 Mass. 79 (1811) ; Cutler v. Wadsworth, 
 7 Conn. 6 (1828) ;Faw Ness v. Cantine & Radcliff, 4 Paige (N. Y.) 55 
 (1833) ; D insmore^ v. Bigper t, Q Pa. St. 13 ^ (1848) ; Dawson v. Wells, 3 Ind. 
 398 (1852); Keeling v. Heard, 3 Head (Tenn.) 592; Criszvell v. Ragsdale, 
 18 Tex. 443 (1857) ; Lincoln v. Cross, 11 Wis. 91 (i860) ; Johnson v. Baker, 
 38 III. 98, 87 Am. Dec. 293 (1865) ; Chase v. Dana, 44 111. 262 (1867) ; Fithian 
 v. Monks, 43 Mo. 502 (1869); Davidson v. Seegar, 15 Fla. 671 (1876); 
 Darrow v. Scullin, 19 Kans. 57 (1877) ; Strother v. Richardson, 30 La. Ann. 
 1269 (1878) ; Ling v. King, 91 111. 571 (1879) ; Jenness v. Circuit Judge for 
 Lapeer County, 42 Mich. 468, 4 N. W. 220 (1880) ; Balm v. Nunn, 63 
 Iowa 641, 19 N. W. 810 (1884) ; Ninde v. Clark, 62 Mich. 124, 28 N. W. 
 765, 4 Am. St. 823 (1886). The judgment also must be final. Mather v. 
 Chapman, 6 Conn. 54 (1825) ; Daniel v. Cooper, 2 Houst. (Del.) 506 (1862) ; 
 Walden v. Clark, 50 Vt. 383 (1877) ; In re Scdgeley Ave., 88 Pa. St. 509 
 (1879) ; Devlin v. Hinman, 40 App. Div. loi, 57 N. Y. S. 663, 29 Civ. Proc. 127 
 (1899). Ordinaril}', the party who has obtained judgment is immediately 
 entitled to execution, Smith v. Smith, L. R. 9 Exch. 121 (1874) ; Kavlor v. 
 Hollozmv. ■; Phila. (Pa.) 1^ 30 (1864) ; Szvectser v. Fox, 43 Utah 40,T34P'ac. 
 599, 47 L. R. A. (N. S.) 14S (1911) ; but a judgment subject to conditions 
 can be enforced only in accordance with their terms. Veal v. Warner, i Mod. 
 20 (1669) ; Shoemaker v. Shirtliffe, i Dall. (U. S.) 133, i L. ed. 69 (1785) ; 
 Otwellv. Messick,4 Houst. (Del.) 542 (1873). And where a statute provides 
 that a certain time shall elapse after judgment before execution, an execution 
 issued sooner is erroneous. Bacon v. Cropsey, 7 N. Y. 195 (1852) ; Wilkin- 
 son's Appeal. 6^ Pa. St. 180 (1870) ; Jones v. Carnahan, 63 Ind. 229 (I878)", 
 and by some authorities void, Briggs v. Wardwell, 10 Mass. 356 (1813); 
 Penniman v. Cole, 49 Mass. 496 (1844) ; Washington Nat. Bank v. Williams, 
 188 Mass. 103, 74 N. E. 470 (1905). At common law, execution m.ight issue 
 as soon as judgment was signed and before its entry of record, provided there 
 Avas no writ of error depending or agreement to the contrary. Tidd's Prac- 
 tice (9th ed.) 994; Hastings v. Cunningham, 39 Cal. 137 (1870) ; Willson v. 
 Bin ford, 54 Ind. 569 (1876) ; Los Angeles County Bank v. Raynor, 61 Cal. 145 
 (1882) ; Drake v. Harrison, 69 Wis. 99, 33 N. W. 81, 2 Am. St. 717 (1887) ; 
 Fontaine v. Hudson, 93 Mo. 62, 5 S. W. 692, 3 Am. St. 515 (1887), otherwise 
 justice's judgments, Huffman v. Sisk, 62 Mo. App. 398 (1895) ; Weigley v. 
 Matson, 125 111. 64, 16 N. E. 881, 8 Am. St. 335 (1888), otherwise out of 
 term time. Knight v. Martin, 155 111. 486, 40 N. E. 358 (1895); Stevens v. 
 Manson, 87 Maine 436, 32 Atl. 1002 (1895) ; Lowenstein v. Caruth, 59 Ark. 
 588, 28 S. W. 421 (1894) ; Fisher v. Jones, 114 Ga. 648, 40 S. E. 700 (1901). 
 But by statutes in some states an enrollment or docketing of the judgment is 
 a prerequisite to an execution. Barrie v. Dana, 20 Johns. (N. Y.) 307 (1822) ; 
 Marvin v. Herrick, 5 Wend. (N. Y.) 109 (1830) ; Smith v. Trenton Delaware 
 Falls Co., 20 N. J. L. 116 (1843) ; Blashfield w. Smith, 27 Hun (N. Y.) 114 
 (1822) ; Balm v. Nunn, 63 Iowa 641, 19 N. W. 810 (1884) ; Mason & Risch Vo- 
 calion Co. v. Killough Mu.ur Co., 45 S. Car. ii, 22 S. E. 755 (1895) ; Dewey v. 
 Dewey, 151 Mich. 586, 115 N. W. 735 (1908) ; Belfer v. Ludlozv,^6g Misc. 486, 
 126 N. Y. S. 130 (1910). But the irregularity may be cured by nunc pro tunc 
 order. Graham v. Lvnn, 4 B. A'Ton. (Ky.) 17, 39 Am. Dec. 493 (1843); 
 Doughty v. Meek, lo.s Iowa 16, 74 N. W. 744, 67 Am. St. 282 (1808). As to 
 what is sufficient docketing see Appleby v. Barry, 2 Rob. (N. Y.) 689 (1864).
 
 650 
 
 EXECUTION 
 
 FARMF.RS' AND MFXIIANICS' NAT. BANK v. CRANE 
 
 Supreme Court or New York, Special Term, 1873 
 
 IS Ahh. Pr. {N. S.) (N. Y.) 434 
 
 The plaintiffs, the Farmers' and Mechanics' National Bank of 
 Philailelphia, sued Walworth D. Crane and Joseph C. Danckelman, 
 copartners, to recover the amount of an overdraft ; and in the com- 
 plaint alleged fraud. Judgment was obtained against both defend- 
 ants. Separate executions were issued against the person of each 
 defendant. The plaintiffs neglected to charge the defendant, Danc- 
 kelman, in execution, and he was discharged by an order of super- 
 sedeas. The defendant, Crane, now moved to have the execution 
 against him set aside. 
 
 Bushnell & Albright, attorneys for defendant Crane, and Samuel 
 Jones, of counsel, cited 6 T. R. 525; Gra. Pr. 357; 2 Stra. 1218; 
 Gra. Pr. 411; 5 Duer 682. 
 
 Sandford, A\'oodruff & Robinson, attorneys for plamtiffs, and 
 Edmund R. Robinson, of counsel, cited Fake v. Edgerton, 5 Duer 
 681, and asked to be allowed to amend execution by indorsement 
 directing the sheriff to apprehend one defendant only. 
 
 Fanciier, J.: It is a well settled principle of practice that an 
 execution, being founded on the judgment, must in all respects fol- 
 low it, and be warranted by it. It has been held that it must be in 
 the name of all the plaintiffs against all the defendants (6 T. R. 525 ; 
 Gra. Pr. 357; 2 Stra. 1218), and that it must strictly pursue tlie 
 judgment (Gra. Pr. 411).® 
 
 *The execution must accord with the judgment. Breidenthal v. McKenna, 
 14 Pa St. 160 (1850) ; Kncib v. Graves, 72 Pa. St^ 104 (1872) ]lVinsJowv. 
 O'Prv 56 Ga. 138 (i876)T3'"a^'^^3' v.'Har^rafcr, 30 Gratt. (Va.) 487 (1878); 
 Van Cleave v. Biicher, 78 Cal. 600, 21 Pac. 954 (1889) ; Brozvn v. Duncan 132 
 111. 413, 23 N. E. 1 126, 22 Am. St. 545 (1S90) ; Moloney v. Real Estate B. & L. 
 Assn 57 Mo. App. 384 (1894); Merrifield v. Western Cottage Piano & 
 Organ Co., 238 111. 526, 87 N. E. 379 (1909) ; Schmitt v. Weber, 239 111. 377, 
 88 N. E. 268 (1909) ; Mallory v. Hartman, 86 Conn. 615, 86 Atl. 567 (1913) ; 
 Jordan Bros. v. Gordon, 8 Ala. App. 479. 62 So. 1023 (1913)- In Corhin v. 
 Pcarce, 81 111. 461 (1876), it is said by the court: "A variance between a 
 judgment and an execution might be so marked that, in the absence of other 
 proof, it would properly be inferred that the judgment in question was not 
 the judgment mentioned in the writ, but such inference may be rebutted by 
 proof, and if it appears that, in fact, the judgment in question was the judg- 
 ment 'upon which the writ was issued, in such case the variance, though an 
 irregularity, does not render the writ void." And see Chesehro v. Barme, 163 
 Mass. 79, 39 N. E. 1033 (1894). Thus, the execution should follow the judg- 
 ment in the statement of the amount due, McSherry V. Queen, 2 Cranch (C. 
 C ) 406, Fed. Cas. No. 8926, (1823) ; Tipton v. Grubbs, 2 B. Mon. (Ky.) 83 
 (1841) ; Monaghan v. Monaqhan, 25 Ohio St. 325 (1874) ; J affray v. Sauss- 
 man, 52 Hun 561, 5 N. Y. S. 629 (1889), but a slight discrepancy will not 
 vitiate the execution. Becker v. Quigg, 54 111. 39° (1870) ; Williams v. Brown, 
 28 Iowa 247 (1869) ; Bruere v. Britton, 20 N. J. L. 268 (1844). Contra: Wilson 
 V. Fleming, 16 Vt. 649, 42 Am. Dec. 531 (1844) ; Hightower v. Handlin, 27 Ark. 
 20 (1871).
 
 farmers' & mechanics' NAT. BANK V. CRANE 65I 
 
 The case cited from term reports is authority for holding that 
 if a separate execution against the body of the defendant is issued 
 upon a joint judgment against two defendants, the execution will 
 be set aside, and the defendant arrested under it will be discharged. 
 
 If the plaintiffs wish to exonerate one of several defendants 
 from arrest on an execution, they can not do so by an irregular exe- 
 cution, but must indorse upon it a direction to the sheriff (5 Duer 
 682). 
 
 As to the amendment suggested, I do not think it can properly 
 be made on this motion. If the plaintiffs desire to amend, they 
 should move for that purpose, on a notice to the defendants, who 
 perhaps may wish to be heard on the effect of the former arrest of 
 the defendants, the discharge of one of them, and the subsequent 
 arrest of the other on a several execution. 
 
 The motion should be granted.'^ 
 
 'Accord: Whitman v. James, 10 Daly (N. Y.) 490 (1882), affirmed 89 
 N. Y. 635. Where a judgment is recovered against a number of defendants 
 it is irregular to issue execution against less than all. Anonymous, Goodb. 
 181 (1610) ; Panton v. Hall, 2 Salk. 598 (1689) ; Morse v. Dewey, 3 N. H. 535 
 (1826); State V. Stout, 11 N. J. L. 362 (1830); Boyken v. State, 3 Yerg. 
 (Tenn.) 426 (1832) ; Saunders v. Gallagher, 2 Humph. (Tenn.) 445 (1841) ; 
 Gihhs V. Atkinson,^/^ Pa. T.. l^JVh\h) 139 (1843) ; Conn V. Pender, 1 Smedes 
 & M. (Aliss.) 386 (1843) ; SJiaffexj^Watkins^zyi3lts & S. (Pa.) 219 (1844) ; 
 Wilson & Wheeler v. Nance & Collins, 11 HumpH."XTennr) 189 (1850) ; 
 Saul & Hensinger V. Geist, i Wpodw. (Pa.) 306 (1865) ; Flanagan v. Tinen, 
 B3 Barb. ( NTyIJ sSTrSTTTowrFracTTso (1867 ) ; Linn v. Hamilton, 34 N. J. 
 L. 305 (1870) ; Dandistel v. Kronenherger, 39 Ind. 405 (1872) ; Elson v. 
 O'Dowd, 40 Ind. 300 (1872) ; Brinton v. Gerry, 7 111. App. 238 (1880) ; Zelle 
 V. Bohh, 14 Mo. App. 267 (1883) ; Burdick v. Burdick, 16 R. I. 495, 17 Atl. 859 
 (1889) ; In re First Nat. Bank, 49 Fed. 120 (1891) ; Merrifield v. Western 
 Cottage Piano Co., 238 111. 526, 87 N. E. 379, 149 111. App. i (1909). But see, 
 where separate judgments or orders are entered in one proceeding. Kempt on 
 V. Cook, 4 Pick. (Mass.) 21, 305 (1826) ; Sharpe v. Baker, 51 Ind. App. 547, 
 99 N. E. 44, 96 N. E. 627 (1912) ; Hyder v. Butler, 103 Tenn. 289, 52 S. W. 
 876 (1899) ; McMamts v. Price, 246 Mo. 438, 152 S. W. 3 (1912). Compare 
 Land Credit Co. v. Fermoy, L. R. 5 Ch. App. 322 (1870). The rule, it is said, 
 is technical, and the court from which the process issues will take care that 
 it is not used to work injustice. Mortland ^ v. Himes ^^JP^ SL.,265 (1848) ; 
 
 Sheets y. JFyw^oo^^4^^^^SL_I98_.(i873) -yuffield vTCooper, 87 F a. St. 443 
 (1878) r Aiidgenerally, the plaintiff, under his powerTo control the writ, may 
 direct the sheriff to make the amount of the debt out of the property of one, 
 or any or all of the defendants. Godfrey v. Gibbons, 22 Wend. (N. Y.) 569 
 (1840) ; Root V. Wagner, 30 N. Y. 9, 86 Am. Dec. 348 (1864) ; Crossitt v. 
 Wiles, 13 N. Y. Civ. Pro. 327 (1888); Flanders v. Batten, 50 Hun 543, 3 
 N. Y. S. 728, 20 N. Y. St. 671 (1889). 
 
 One execution can not issue on two separate and distinct judgments 
 Doe V. Pue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368 (1836) ; Merchie v. Gaines, 
 5 B. Mon. (Ky.) 126 (i8zt4) ; Bain & Wyatt v. Chrisman & Porter, 27 Mo. 
 203 (1858) ; Lewis v. Dennis, 54 Tex. 487 (1881) ; B. & O. R. Co. v. Vander- 
 warker, 19 W. Va. 265 (1881) ; Bigham v. Dover, 86 Ark. 2^2> no S. W. 217 
 (1908). 
 
 Upon a judgment in favor of several, an execution issued in favor of 
 one of the plaintiffs is irregular. Moody v. R. Hoe, 22 Fla. 314 (1886); 
 Cleveland v. Simpson, yj Tex. 96, 13 S. W. 851 (1890), but see Railsback v. 
 Love joy, 116 111. 442, 6 N. E. 504 (1886); Couch v. Atkinson, 32 Ala. 633 
 (1858).
 
 652 EXECUTION 
 
 1':arl z: brown 
 
 Court of King's Bench, 1750 
 
 I inis. K. B. 302 
 
 The plaintlfT died after the verdict and before judgment was 
 entered thereupon. Afterwards judgment was entered and an exe- 
 cution taken out, without any scire facias sued out at the suit of tlie 
 ]>laintiff's representative. y\nd now it was moved to set aside the 
 execution of fieri facias, and it was held that although the judgment 
 v>as regularly entered by the 17 Car. 2, c 8^ yet the fieri facias 
 issued irregularly, for there ought to have been a scire facias; so 
 the fieri facias was set aside, and the money levied thereupon or- 
 dered to be restored to the defendant, per totam curiam.^ 
 
 *"The death of either party between the verdict and judgment, shall 
 not hereafter be alleged for error, so as such judgment be entered within 
 two terms after such verdict." Act of 17 Charles II. ch. 8 (1666). MunmJL 
 Coot£Z\_6_Serg, & R. 126 ( 1820) ; Walter v. ErdmaUj^ 4 jPa. Super . Ct. 348 
 
 'Johnson v. Parmcly, 17 Johns. (N. Y.) 271 (1820); Gansevoort v. 
 GiUUand, i Cow. (N. Y.) 218 (1823); Harzvood v. Murphy, 13 N. J. L. 193 
 (1832) ; Hiicy V. Redden, 3 Dana (Ky.) 488 (1835) ; May v. State Bank of 
 North Carolina, 2 Rob. (Va.) 56, 40 Am. Dec. 726 (1843), at p. 69; Warwick 
 
 V. , 20 N. J. L. 116 (1843) ; Moore & Cocke v. Bell, 13 Ala. 459 (1848) ; 
 
 Bellinger v. Ford, 14 Barb. (N. Y.) 230 (1852) ; Trail v. Snouffer, 6 Md. 308 
 (1854) ; Hcwgly v. Johns, 3 Baxt. (f enn.) 85 (1873) ; Brown v. Parker, 15 
 111. 307 (1853) ; ^I organ v. Taylor, 38 N. J. L. 317 (1876), prior to the practice 
 act of 1874; Welch v. St. Louis, 12 Mo. 516 (1882) ; Tucker v. Carr, 20 R. I. 
 477, 40 Atl. I, 78 Am. St. 893 (1898). Quaere whether an execution so issued 
 is void. Seeley v. Johnson, 61 Kans. 337, 59 Pac. 631, 78 Am. St. 314 (1900) ; 
 Meyer v. Mintonye, 106 111. 414 (1883) ; Bellinger v. Ford, 21 Barb. (N. Y.) 
 311 (1856), or merely voidable, i2fl5LV,_57tar/i«_4_.WiiarL_CPa-) 339. 34 Am. 
 Dec. 509 (1830') ; Da rlington v. j>gafeniQ?UJ3 AVatts^&^S,. lEa.) 182 (1845); 
 Hughes v. Wilkinson, 37 Miss. 482 (1859) ; Jenness v. Circuit Judge, 42 Mich. 
 469, 4 N. \V. 220 (1880). In many of the states the common law rule has been 
 changed and the personal representative may have an execution without a 
 writ of revival. For example, see N. Y. Code Civ. Pro., § 1376; Ireland v. 
 Litchfield, 22 How. Pr. 178, 21 N. Y. Super. Ct. 634 (1861) ; Guilerman v. 
 Coufant, 128 App. Div. 453, 112 N. Y. S. 900 (1908) ; Pe nnsylvania Act of 
 Peb^ 2d. 1 8 34. P. L. 70, § 26 ; Gcmmill v. Btitl_cr,j^ Pa.^St. 232^1846)! Mojgcin 
 V. Taylor, 38 i\'. J. L. 3J7 (1876) ; Mavi 
 
 •Jity v. EastriJge,67 Hid. 211 (1879) ; 
 Hatcher v. Lord, lis Ga. 619 (1902), 41 S. E. 1007, 61 L. R. A. 353 and note; 
 Kinkade v. Gibson, 209 III. 246, 70 N. E. 683 (1904). In England where there 
 is a change of parties by death or otherwise, the party alleging himself 
 entitled to execution may apply to the court for leave to issue execution, and 
 the court may make an order to that effect upon such terms as shall be just. 
 Rules of Supreme Court, Order XLII, rule 17; Mercer v. Lazvrence, 26 W. 
 R. 506 (1878) ; Ex parte Woodall, L. R. 13 Q. B. Div. 479 (1884).
 
 COOPER V. MAY 653 
 
 COOPER V MAY 
 
 Superior Court of Delaware, 1832 
 
 I Har. {Del.) 18 
 
 Certiorari. Judgment before a justice of the peace in an action at 
 the suit of Thomas May against Nathaniel D. Masten. An execution 
 issued in 1826, on which a sale was made, but no part applied to 
 that execution. Masten died in 1826, and his widow administered, 
 and af tervv'ards intermarried with Cooper. An alias fi. fa. was issued 
 in 1829. 
 
 This was the error assigned, that the alias fi. fa. issued several 
 years after the defendant's death, and without any previous sci. fa.^" 
 
 Clayton, C. J. : If judgment is recovered, and the defendant 
 dies in one month afterwards, if a term is suffered to elapse, so that 
 the execution must be tested after his deatli, such execution would 
 be irregular ; for the rule is, that when a new person, who was not 
 a party to a judgment, derives benefit by, or becomes chargeable to, 
 the execution, there must be a sci. fa. to make him a party. 2 
 Saund. 6, n. i ; i Ld. Raym. 245 ; i Salk. 319-20; 2 Ld. Raym. 768; 
 2 Inst. 471. So when the defendant dies in term time and execution 
 is taken out immediately after the term, a day posterior to the death 
 of defendant, a scire facias is necessary to revive the judgment 
 against the administrator. 6 T. R, 368. Lord Kenyon in this case 
 says, "great injustice may be done to creditors if v/e permit the exe- 
 cution to stand." The plaintiff should have sued out a scire facias 
 to revive the judgment against the defendant's executor. The mo- 
 ment a party is dead, the rights of his creditors are fixed. An execu- 
 tion once begun should proceed. I understand by this that where 
 chattels or other property are seized in execution, you may proceed 
 to complete the execution at any time after, and the death of neither 
 plaintiff nor defendant will stop the execution.^^ But I have met with 
 
 "A part onlj'- of the opinion is printed. 
 
 "Accord: Harivood v. Phillips, O. Bridgman 464 (1663) ; Adams v. Con- 
 nelly, 118 111. App. 441 (1905) ; Farrer v. Brooks, i Mod. 188 (1674) ; Fox v. 
 Lamar, 2 Brev. (S. Car.) 417 (1810) ; Massie v. Long, 2 Ohio 287, 15 Am. Dec. 
 547 (1826) ; Doe V. Heath, 7 Blackf. (Ind.) 154 (1844) ; Wood v. Morehouse, 
 45 N. Y. 368 (1871) ; Holman v. Holman, 66 Barb. (N. Y.) 215 (1872); 
 Rosenaarte n y. Deemer. i. W- N. Cas. Pa. 63 (1873); Davis v. Moore, 103 
 III. 445 (1882) ; Coffin v. Freeman, 84 Maine 535, 24 Atl. 986 (1892) ; Conne U. 
 v.^Q'Nell , I.S4 Pa. St. 582, 26 Atl. 607 (1893) ; Knelly v. Bachert. 13 Pa D. R . 
 135 (1903)- Contra: Davis v. Oswalt, 18 Ark 414, 68 Am. Dec. 182 (1857) ; 
 Chandler v. Burdett, 20 Tex. ,42 (1857) ; McMiller v. Butler, 20 Tex. 402 
 (1857) ; Burge v. Brown, 5 Bush. (Ky.) 535, 96 Am. Dec. 369 (1869). 
 
 In Massie' s Heirs' Lessee v. Long, 2 (jhio 287, 15 Am. Dec. 547, it is said : 
 "Itis well settled that if the defendant die, after execution is sued out and 
 levied, that the execution proceeds, as if the death had not taken place. The 
 reason generally given for this is, that execution is an entire thing, and having 
 once commenced, can not be stopped. But there is undoubtedly a much more 
 satisfactory reason to warrant the proceeding, at least in the case of a levy
 
 654 EXECUTION 
 
 no case \vhcrc von can take out execution which must be tested after 
 tlie death of the phiintitT or defendant. A scire facias is necessary 
 in every such case. The ahas li. fa. is irregular, and the proceedings 
 must l»e reversed. ^- 
 Judgnient reversed. 
 
 PAYNE V. PAYNE'S EXR. 
 
 Court of Appeals of Kentucky, 1848 
 
 8B. Mon. {Ky.) 391" 
 
 Simpson, J.: This was a motion to quash an execution, made 
 by the defendant in the execution. 
 
 There were two plaintiffs in the judgment at law, one of whom 
 had died before the last execution issued. His death was suggested 
 in the execution, and this fact was also relied upon as a ground for 
 quashing it. But it is fully settled that where there are two or more 
 plaintiffs or defendants in a personal action, and one or more of 
 
 upon chattels. By the levy, the property of the defendant _in_ the goods is 
 divested, and the sheriff acquires a special property, which it is his duty to 
 divest himself of according: to the exigent of the writ." 
 
 ^"At common law if there is but one defendant and he dies after judg- 
 ment and before execution, an execution can not issue tested after his death 
 without first reviving the judgment by writ of scire facias. Where a statutory 
 remedy is substituted for scire facias it must be followed strictly. Fitzherbert 
 Natura Brevium 266; Vincent v. Dale, I Dyer 76b (1552). 
 
 Jefferson v. Morton, 2 Saund. 6 (1670) ; Boyd v. Armstrong, I Yerg. 
 (Tenn.) 40 (1821) ; Den ex dent. Sharp v. Humphreys, 16 N. J. L. 25 (1837) ; 
 Cartney V. Reed, 5 Ohio 221 (1831) ; Heapy v. Parris, 6 T. R. 368 (i795) ; 
 Stvmets v. Brooks, 10 Wend. (N. Y.) 207 (1S33) ; Bragner v. Langmead, 7 T. 
 R.20 (1796) ; Jeii'eit v. Smith, 12 Mass. 309 (i8is) ; Henderson v. Candy, ll 
 Ala. 431 (1847) ; State v. Michaels, 8 Blackf. (Ind.) 436 (1847) ; Hildreth v. 
 Thompson, 16 Mass. 191 (1819) ; S pringer v. Brozvn. o Pa. St ^o=; (1848) 
 Mcanor v. Hamilt on, 27 Pa. St. 137 (185 6) ; Trail v. Snouffer, 6 MHr3o8 ( 1854) 
 'ZaflinV. Herrington, l6 111. 301 (i«55T; J^Voodv^ ohvell. : ^^ Pa. St. 02 (i8=;q) 
 Ransom v. Williams, 69 U. S. 313, 17 L. ed. 803 (1864) ; Smith v. Reed, 52 Cal. 
 345 (1877) ; Welch v. Bat tern, 47 Iowa 147 (1877) ; Sims v. Eslava, 74 Ala. 594 
 (1883) ; Middleton v.Mjddleton, 106 Pa. St^252 (1884) ; In re Shephard, L. R. 
 43 Ch. DTTsTTTWr; 5;i// V. L.ilbertTW^owS'sX?, 44 N. W. 815 (1890) ; Bar- 
 field V. Barfield, 113 N. Car. 230, 18 S. E. 505 (1S93) ; Rcddick v. Long, 124 Ala. 
 260,2780. 402 (1899) ;^//aj y?. Co. V. 5"»h7A, 52 App. Div. 109, 64 N. Y. S. 1044 
 (1900), see N. Y. Code Civ. Pro., §§ 1380-1 ; Seely v. Johnson, 61 Kans. 337, 
 59 Pac. 631, 78 Am. St. 314 (1900) ; Watson v. Moore, 40 Ore. 204, 66 Pac. 
 814 (1901) ; Vogt V. Daily, 70 Nebr. 812, 98 N. W. 31 (1904) ; Dunbar v. 
 Kelly, 189 Mass. 390, 75 N. E. 740 (1905) ; PerrcTv^ Lepper, -226-£a. St. ^8, 
 75 Atl. 722, (1910) ; Rose v. Dunbar, 20 Idaho i, 115 Pac. 920 (1911) ; Craig 
 v. Wagner, 88 Conn. 100, 89 Atl. 916 (1914) ; Prentiss v. Bozvden, 145 N. Y. 
 342, 40 N. E. 13 (1895). An execution in violation of this rule is generally 
 held void. Holloway v. Johnson, 7 Ala. 660 (1845) ; per ctir. "of no more ef- 
 fect than waste paper"; Wallace v. Sainton, 66 N. Y. 188 (1876) ; Cunning- 
 ham V. Burk, 45 Ark. 267 (1885) ; Sawyers v. Sawyers, 93 N. Car. 321 (1885) ; 
 Prentiss V. Bowdcn, 145 N. Y. 342 (1895). Contra, holding the proceedings 
 voidable merely, Butler v. Hcynes, 3 N. H. 2i (1823); Sbeer v. Samt>k^/i 
 V^atts (Pa ) 367 (1835); Harrington v. O'Reilly, 17 Miss. 2l6 (1848); 
 fledges v. ll'hite, 19 R. I. 717 (1897). 
 
 "Part of the opinion of the court is omitted.
 
 ERWIN V. DUNDAS 655 
 
 them die after judgment, execution may be had for or against the 
 survivors, without a scire facias. (2 Saunders 72, note by WilHams, 
 and the cases cited.) This ground was properly held untenable and 
 the motion overruled." 
 Judgment affirmed. 
 
 ERWIN V. DUNDAS 
 
 Supreme Court of the United States, 1846 
 
 4 How. (U. S.) s8 
 
 Error from the Circuit Court of the United States for the South- 
 ern District of Alabama. 
 
 Ejectment by Erwin, the plaintiff In error, to recover a lot In 
 the city of Mobile, known as Hitchcock's cotton press, to which 
 he claimed title as purchaser at sheriff's sale on an alias fi. fa. Issued 
 July 19, 1840, on a judgment against Henry Hitchcock and Robert 
 D. James. Henry Hitchcock, the former owner of real estate, 
 died August 12, 1839, having devised the land to his wife, who con- 
 veyed to Cowperthwaite and Cowperthwaite to Dundas and others, 
 tlie defendants. Upon the trial the court below directed a verdict 
 for the defendants to which the plaintiff excepted. ^^ 
 
 Nelson, J. : A series of cases, coming down from the earliest 
 history of the law on the subject, and the reason assigned In support 
 of them, necessarily lead to the result — and Avhich has also been 
 confirmed by express decision in all courts where the authority of 
 the common law prevails — that an execution Issued and bearing 
 teste after the death of the defendant Is Irregular and void, and 
 can not be enforced either against the real or personal property of 
 the defendant, until the judgment Is revived against the heirs or 
 devisees In the one case, or personal representatives In the other. 
 
 In the case before us, the judgment upon which the execution 
 was Issued and the lands sold had been rendered against two defend- 
 ants, one of whom was living at the time, but the lands sold be- 
 longed to the estate of the deceased. And it Is material to inquire, 
 whether, In this aspect of the case, a different rule can be applied to 
 the sale. 
 
 At common law a judgment or recognizance In the nature of a 
 judgment did not bind the lands of the defendant, nor did the exe- 
 
 "Accord : Y. B. 48 Edw. Ill, 12 b ; Withers v. Harris, 2 Ld. Raym. 806, 
 3 Salk. 319 (1702) ; Hamilton v. Lyman, 9 Mass. 14 (1812) ; Bodwoin v. 
 Jordan, 9 Mass. 160 (1812) ; Bcrryhill v. Wells, J, B inn^ XPa^) 56 (1812) 
 semble; Lane v. Bcltzhoovcr, 1 Taney ( C. TT.) no, FedTCas. No. 8047 (1840) ; 
 Howell & Howell v. Eldridge, 21 Wend.. (N. Y.) 678 (1840) ; Ellison v. 
 Andrews, 12 Ired. (N. Car.) 188 (1851) ; Cushman v. Carpenter, 62 Mass. 388 
 (1851) ; Dickinson v. Bowers, 7 Baxt. (Tenn.) 307 (T874). Contra: Ballingcr 
 V. Redhead, i Kans. App. 434, 40 Pac. 828 (1895) ; Jreiler v. Freiler. i P a. 
 Co. Ct 263 (1885) ; Fro hock v. ggf.yh'nc, 8 Watts (Pa.) T2f (18^0) partition. 
 " ^'^Hie slatement ot facts is abridgecTlind the arguments of counsel and 
 part of the opinion of the court omitted.
 
 656 F.XF.CUTION 
 
 cutidn disturb the possession, as it went only against the goods and 
 chattels. The Statute of Wcstm. II, eh. 18 (13 Edvv. I), first sub- 
 jected the lands of the debtor to execution on a judgment recovered 
 against him, and gave the plaint! If the writ of elegit by virtue of 
 which the sheriff seized and delivered a moiety of the lands until 
 the debt was levied out of the rents and profits. Under this statute, 
 a nioiety of the land is deemed bound from the rendition of the 
 judgi-:ient. 2 Bac. Abr., tit. Execution, 685 ; 3 Bl. Com. 418; 3 Coke 
 iz^TJie People v. Hoskins, 7 Wend. (N. Y.) 466. 
 
 Before the statute, a judgment was considered a charge only 
 upon tlie personal estate of the defendant ; since, a charge upon both 
 the real and personal estate. 
 
 Before and since the statute, in case of a judgment against two 
 defendants, and the death of one, the charge of the judgment sur- 
 vived against tlie personal estate of the survivor; and execution 
 could be taken out against him within the year wdthout a scire facias, 
 and the debt levied. 2 Tidd 1120; i Salk. 320; Bing. on Ex. 136; 
 Norton v. Lady Harvey, 2 Wms. Saund. 50, 51, n. 4, and 72, n. 3; 
 16 ]\Iass. 193, n. 2; I Cow. (N. Y.) 738. 
 
 The writ, however, must be in form against both, to correspond 
 with the record, but it could be executed against the goods of the 
 survivor only ; or, on making a suggestion of the death upon the rec- 
 ord, the writ could be against the survivor alone.^^ 
 
 And if the judgment against both defendants is founded upon 
 contract, the surviving defendant is entitled to contribution out of 
 the estate of the deceased (Bing. on Ex. 137, and cases cited) ; if 
 upon tort, it would be otherwise. 
 
 But since the statute, if the plaintifif seeks to enforce the judg- 
 ment against the real estate of the defendants in the case put, he 
 must revive it by scire facias against the surviving defendant, and 
 the heirs, devisees, and terre-tenants of the deceased, before execu- 
 tion can regularly issue. For, as to the real estate of the defendants, 
 the charge of the judgment does not survive; and the execution 
 must go against the lands of both ; and as it can not be regularly 
 issued against the deceased codefendant, nor be allowed to charge 
 the estate in the hands of his heirs, devisees, or terre-tenants, until 
 they have notice, and an opportunity to set up a defense, if any, 
 to the judgment, a scire facias is indispensable to the regularity of 
 the execution. 2 Wms. Saund. 51, n. 4; Bing. on Ex. 137, and 
 
 "Accord: Johnston v. Lynch, 3 Bibb (Ky.) 334 (1814) ; Woodcock v. 
 Bennett, i Cow. (N. Y.) 711, 13 Am. Dec. 568 (1823) ; Calloway v. Enbank, 
 4 T. T. Mar. (Kv.) 280 O830) ; Carnahan v. Brown, 6 Blackf. (Ind.) 93 
 (1841") ; Davis v. 'flclm, 3 Smedes & M. (Miss.) 17 (1844) ; Reams v. McNail, 
 9 Humph. (Term.) 542 (1848) ; Thompson v. Bondnrant, 15 Ala. 346, 50 Am. 
 Dec. 136 (1849) ; Cheatham v. Brien, 3 Head (Term.) 553 (1859) ; Blanks v. 
 Rector. 24 Ark. 496, 88 Am. Dec. 780 (1866) ; Sheetr: v lV\<nkoot>. lA Pa. St. 
 198 (1873), cf. Stoner v. Stroman. 9 Vv'aUs & ^!). (W .) S=, (i84.S) ; Holt v. 
 Lynch, 18 W. Va~s^7 (1881) ; Duquesne A'at. Bank v. Mills, 22 Fed. 611 
 ('1883 Pa.) ; Reed v. Garfield, 15 111. App. 290 (1884) ; LoomisjLMass. 12 Ea. 
 Super. Ct.J3.^ C1899) ; Forbes v. Thompson, 2 Penn. (Del.) 530, 47 Atl. 1015 
 (1900) r'STerri field V. Western Cottage Piano &c. Co., 149 HI- App. I (1909)-
 
 ERWIN V. DUNDAS 657 
 
 cases cited; 4 Mod. 316; 2 Coke 14a; i Ld. Raym. 244, i Salk. 320, 
 Carth. 404; 16 Mass. 193 n. ; i Cow. (N. Y.) 711. 
 
 It will be seen, therefore, upon these authorities, that the same 
 objections exist, both in principle and in reason, as it respects the 
 enforcement of a judgment against two by a sale of the real estate 
 on execution after the death of one, which have been sliov/n to 
 exist against the enforcement of a judgment against a single de- 
 fendant after his death. For as tlie charge of the judgment against 
 the land does not survive, but continues upon the lands of both 
 after the death of one, the same as before, and can not be enforced 
 against the real estate of the survivor alone, as in the case of the 
 personalty, and the execution must therefore be issued against both 
 if issued at all, it is obvious the lands of the deceased, in that event, 
 are as liable to be sold by the sheriff as the lands of the survivor. 
 The rights of the heirs and devisees, and the reasons for protecting 
 them by the scire facias, are the same in the one case as in the 
 other; and when the law disables the plaintiff from suing out exe- 
 cution against the real estate on a judgment against one defendant 
 after his death, it must equally disable him from suing it out on a 
 judgment against two, after the death of one. Otherwise, in both 
 cases, the interest of new parties, upon whom the estate has fallen, 
 or to whom it may have passed, is liable to be suddenly and with- 
 out notice divested by the silent, and till then dormant, power of 
 the law; parties, too, who from their age and situation in life will 
 not unfrequently be the least qualified to understand and protect 
 these interests, being the children of the deceased defendant. 
 
 Upon the whole, without pursuing the examination further, 
 we are satisfied, that, according to the settled principles of the com- 
 mon law, and which are founded upon the most cogent and satis- 
 factory grounds, the execution having issued and bearing teste in 
 this case after the death of one of the defendants, the judgment 
 was irregular and void; and that the sale and conveyance of the 
 real estate of the deceased under it to the plaintiff was a nullity.^^ 
 
 Judgment affirmed. 
 
 ^'Accord : Bacon's Abridgement, Executions, G. \; In re Herberts Case, 
 3 Coke 12 (1584) ; Smarte v. Edsun, i Lev. 30 (1673) ; Lampton v. Colling- 
 vjood, 4 Mod. 314 (1694); Pennoir v. Brace, I Salk. 319 (1696); Reed v. 
 Garvin ^ J Scrg. & R. (Pa.) 354 (1821) ; CoTumornvcalUiJvr Ihejtse of Fellas V. 
 ersE. 
 
 VMUJersl kc, 8 SergTgr R TXya.) 452 0^^22)YW'oo3cock\. Bennett, i Cow. 
 (N. Yyyii, 13 Am. Decr5S8~(i823) ; Stiles v. Brock & Co., 1 Pa. St. 215 
 (1845) ; Austin v. Reynolds, 13 Tex. SAA~C^^^?yrT^enderson v. Vdnlwok, 24 
 Tex. 358 (1859) ; Mi llard v. Gavit t, i.S P hila. (Pa .) 279 (1881). Contra, as to 
 lands of the survivor, Martin v. BranclTBank atT)ecatur, 15 Ala. 587, 50 Am. 
 Dec. 147 (1849) ; Hardin v. McCanse, 53 Mo. 255 (1873) ; Reed v. Garfield, 15 
 111. App. 290 (1884) ; Christ v. Flannagc.n, 23 Colo. 140, 46 Pac. 683 (189&) and 
 see Baskin v. Huntington, 130 N. Y. 313, 29 N. E. 310 (1S91). Section 1383 of 
 the New York Code of Civil Procedure declares that the provisions for ob- 
 taining leave to issue execution where a judgment debtor has died "do not 
 affect the right of a judgment creditor to enforce a judgment, against the 
 property of one or more surviving judgment debtors, as if all the judgment 
 debtors were living. In that case, an execution must be issued in the usual 
 form; but the attorney for the judgment creditor must endorse thereupon, a 
 notice to the sheriff, reciting the death of the deceased judgment debtor, and 
 requiring the sheriff not to collect the execution out of any property which 
 belonged to him." 
 42 — Crv. Proc.
 
 658 EXECUTION 
 
 SECTION 2. PROPERTY AND INTERESTS SUBJECT 
 TO EXECUTION 
 
 MACK V. PARKS 
 Supreme Judicial Court of Massachusetts, 1857 
 
 74 Mass. 517 
 
 Action of tort for taking the plaintiff's watch from his person 
 and carrying it away, and converting it to the defendant's use. The 
 question whether the taking was lawful was submitted to the 
 decision of the court upon the following facts: 
 
 The defendant was a deputy sheriff and acting in his official 
 capacity at the time of the tort alleged. While the plaintiff and 
 one or two others were in a shop, talking about watches, the de- 
 fendant came in, and joined in the conversation. In the course of 
 it the plaintiff took the defendant's watch into his hands to com- 
 pare its weight with that of his own, and then handed bodi to the 
 defendant. The defendant then (still holding the plaintiff's watch 
 in his hand) told the plaintiff* that he had a writ against him and 
 must attach his watch, and asked him to take it off, it being con- 
 nected to his person by a silk band ■which passed about his neck. 
 The plaintiff refused to take it off; upon which the defendant 
 severed the band at the place where it was sewed together, and 
 took the watch ; and afterward, before the beginning of this suit, 
 tendered to the plaintiff the value of the silk band.^^ 
 
 BiGELOW, J. : It seems to be perfectly well settled at common 
 law, that chattels in the actual possession and use of a debtor can 
 not be taken or distrained. It is laid down in Co. Lit. 47a, that 
 "aldiough it be of valuable property, as a horse, etc., yet when a 
 man or woman is riding on him, or an axe in a man's hand cutting 
 of wood and the like, they are for that time privileged and can not 
 be distrained." So "if nets are in the hands of a man, they can 
 not be distrained any more than a horse on which a man is." Har- 
 grave's note 294. S. P. Read v. Burley, Cro. Eliz. 539, 596.^® 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 "Accord: Storey v. Robinson, 6 T. R. 138 (1795). But in State ex rel. 
 Rogers v. Dilliard, 3 Ired. (N. Car.) 102, 38 Am. Dec. 708 (1842) it was said 
 that a horse although ridden by its owner, could be levied on and that it was 
 the duty of the party to surrender the horse to the officer. In Bell v. Douglass, 
 I Yerg. (Tenn.) 397 (1830), tools of a meclianic in use were held subject to 
 levy. In Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492 (i860), a levy upon a 
 bag of gold, which the debtor was carrying along the street, was sustained as 
 not tortious. Field, C. J, said : "The coin was contained in a bag, which was 
 held by the plaintiff in his hand, and from its seizure thus situated the plain- 
 tiff could not claim any exemption, as he might, perhaps, do in reference to 
 money upon his person. Thus situated it was like a horse held by its bridle, 
 subject to seizure under execution against its owner." 
 
 In Moormati v. Quick, 20 Ind. 67 (1863), the sheriff levied on money as 
 it was being counted out to the debtor at a bank in payment of a check.
 
 MACK V. PARKS 659 
 
 In the leading case of Simpson v. Hartopp, Willes, 512, which Mr. 
 Justice Buller saj-s (4 T. R. 568) is "of great authority because it 
 was twice argued at the bar, and Lord Chief Justice Willes took 
 infinite pains to trace with accuracy those things which are priv- 
 ileged from distress," it is distinctly adjudged that things in actual 
 use can not be taken or distrained ; and the reason given is, that an 
 attempt to distrain such articles would lead to a breach of the 
 peace. In the modern case of Sunholf v. Alford, 3 M. & W. 253, 
 it is laid down as well settled law, that "goods in the actual pos- 
 session and use of the debtor can not be distrained" ; "a man's 
 clothes can not be taken off his back in execution of a fieri facias."^'' 
 The main ground on v/hich these and other authorities rest is, that 
 it would tend directly to a collision and breach of the peace, if 
 articles thus situated were allowed to be taken from the hands of a 
 debtor. Gorton v. Falkner, 4 T. R. 565 ; Storey v. Robinson, 6 
 T. R. 139; Adames v. Field, 12 Ad. & El. 649, and 4 P. & Dav, 504. 
 Com. Dig. Distress, C. Gilbert on Distresses, 43. There are many 
 articles of personal property, subject to attachment under our laws 
 and usages, which could not have been distrained or taken at com- 
 mon law under the rule as stated in the earliest authorities. Potter 
 V. Hall, 3 Pick. (Mass.) 368. But in the absence of any proof of 
 usage or custom in this state, from which it might be inferred that a 
 different rule of law has ever been adopted, the present case falls 
 v/ithin the principles on which the English authorities rest, and 
 m_ust be governed by them. 
 
 The v/atch, at tlie time it was taken by the defendant, was in 
 the plaintiff's actual possession and use, v-orn as part of his dress 
 or apparel, and v^as severed from his person by force. Such an 
 act, if permitted, v/ould tend quite as directly to a breach of the 
 peace as to take from a man the horse on which he vv^as riding, or 
 the axe with v/hich he was felling a tree. It is indeed a m.ore gross 
 violation of the sanctity of the person, and tends to a greater 
 
 Held, that there was not si:ch a title in the money in the debtor as would, 
 previous to its dehvery to him, enable the sheriff to seize it. Accord : Richards 
 V. Heger, 122 Mo. App. 512, 99 S. W. 802 (1907). See also Cotirtoy v. Vincent, 
 15 B_^eav. 486 (1S52) ; Bindon's Case, Moores (K. B.) 214 (1585) Arguendo. 
 
 In Hardtstey and Barney, Comb. 356 (1695), it is said, per Holt, C. J.: 
 "Upon a fieri facias the sheriff may take any thing but wearing clothes; nay, 
 if the party hath two gowns, he may take one of them." In Cooke V. Gibbs', 
 3 Mass. 193 (1807), it is said, per Parsons, C. J., "a fieri facias at common 
 law is issued against the goods and chattels of the debtor without any excep- 
 tion; but if the sheriff were to strip the debtor's wearing apparel from his 
 body, he would be a trespasser, for such apparel when worn, is not liable to 
 the execution." In Bumpus v. Maynard, 38 Barb. (N. Y.) 626 (1861), it was 
 held that the sheriff was not liable for failure to seize on execution the 
 necessary wearing apparel of the judgment debtor who was in bed at the 
 time of levy. 
 
 By statute in many jurisdictions wearing apparel is exempt from execu- 
 tion. Bozvne v. Witt, 19 Wend. (N. Y.) 47s (1838); Fra-ier v. Barnum. 
 19 N. J. Eq. 316, 97 Am. Dec. 666 (1868). Jewelry may be so classed but debt- 
 ors will not be permitted to invest large sums in articles of personal adornment 
 and by wearing them, defraud their creditors. In re Gemmel, 155 Fed. 551 
 (1907) ; In re Evans & Co., 158 Fed, 153 (1907) ; In re Leech, 171 Fed. 622 
 (1909).
 
 (^yO EXl-Cl'TION 
 
 ai:s;ravatlon of the fcclin£::s of the dohtor. Nor would it be prac- 
 ticable to place any limit to the exercise of such a rioht. If allowed 
 at all, it nuist extend to every article of value usually worn or car- 
 ried about the person; if an officer can sever a silken cord, he 
 may likewise break a metalic chain; if he can seize and take a 
 watch, so he may wrest a breastpin or earring from the person, or 
 thrust his hand into the pocket and carry off money ;_ he may, in 
 short, resort to any act of force necessary to enable him to attach 
 property in the personal custody of the debtor. It is obvious that 
 such a doctrine would lead to consequences most dangerous to tlie 
 good order and peace of society. 
 
 It is no answer to this action, that the defendant tendered to 
 the plaintiff the value of the cord by which the watch was attached 
 to the person, or that the watch itself, detached from the person, 
 was subject to attachment.-^ The wrong consists in having taken 
 an article from the person of the plaintiff, which was at the time 
 by law exempted from attachment. The mode in which it was done 
 is wholly immaterial. He is liable for the value of the watch, being 
 a trespasser ab initio. "No lawful thing, founded on a wrongful 
 act, can be supported." Lutt'm v. Benin, ii Mod. 50; Ilsley v. 
 Nichols, 12 Pick. (Mass.) 270. The v/atch, although liable to at- 
 tachment if it had been taken by tlie defendant when not connected 
 with the person of the plaintiff', was wrongfully seized and can not 
 now be held under attachment. 
 
 Judgment for the plaintiff.-- 
 
 =^In Deposit Naf. Bank v. Wichham, 44 How. Pr. (N. Y.) 421 (1873). 
 the defendant, the judgment debtor, while under supplementary proceedings, 
 in which he was restrained from disposing of his property, handed his watch 
 to his attorney as a fee for services to be rendered; for this he was adjudged 
 guiltv of contempt and directed to be imprisoned. In Frasier v. Barnnm, 
 19 N. J. Eq. 316. 97 Am. Dec. 666 (1868), in proceedings in equity for the 
 examination of the judgment debtor it was disclosed that the defendant was 
 in possession of jewelry worth $300. The chancellor said: "The rings and 
 jewelr>- are not wearing apparel, and must be given up to the complainant to 
 satisfy his debt. Being articles generally worn on the person, it may be out 
 of the power of the sheriff to levy on, or take possession of them, but a 
 receiver will be appointed in this cause, and an order made to deliver them 
 to him." 
 
 "So, also, property taken from the person of a prisoner upon his arrest, 
 whether upon criminal or civil process, is not subject to levy. Robinson v. 
 Howard, 61 Mass. 257 (i8si); Morris v. Pcnniiuan, 80 Mass. 220, 74 Am. 
 Dec. 675 (1859) : Davie s v. Gallagher, 17 Phila.JPaJ 229 (1883) ; Commercial 
 Exchange Bank vTHcLeod, 65 Iowa 665, 19 N. W. 329, 22 N. W. 919, 54 Am. 
 Rep. 36 (1885) ; Dahms v. Scars, 13 Ore. 47, il Pac. 891 (1885) ; Richardson 
 v. Anderson, 4 White & Wilson's Civil Cases Court of Appeals (Tex.), § 286, 
 18 S. W. 195 (1892) ; Connolly v. Thurher Whyland Co., 92 Ga. 651, 18 S. E. 
 1004 (1893) ; Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090, 39 L. R. A. 
 165, 64 Am. St. 524 (1897) ; Hill v. Hatch, gq Tenn. 39, 41 S. W. 349, 63 Am. 
 St. 822 (1897) ; Hubbard v. Garner, 115 Mich. 406, 73 N. W. 390, 69 Am. St. 
 580 (1897). Contra: Ex parte Htirn. 92 Ala. 102, 9 So. S^S, I3 L. R. A. 120, 
 25 Am. St. 23 (1890) ; Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459 
 (1867), in the absence of bad faith; Reifsnyder v. Lee, 44 Iowa loi, 24 Am. 
 Rep. 733 (1876) ; Byrne v. Byrne, 89 Wis. 659, 62 N. W. 413 (1895), where 
 the action against the prisoner was by the person who suffered the loss of the 
 f roi" ertv. 
 
 "The general rule of law is that all chattels, the property of the dcb.to-,
 
 TURNER V. FEXDALL 66 1 
 
 TURNER V. FENDALL 
 Supreme Court of the Uxited States, iSoi 
 
 I Cr. {U. S.) 117 
 
 Error to the Circuit Court of the District of Columbia. The 
 plaintiff in error and defendant below had been sergeants of the 
 town of Alexandria and had returned on a writ of fieri facias, 
 issued on a judgment rendered by the Court of Hustings in favor 
 of Philip Richard Fendall, that he had made the debt, but had 
 levied thereon a writ of fieri facias on a judgment against Young 
 and Fendall trading as Robert Young & Co. Before the next suc- 
 ceeding term the Hustings Court was abolished and its powers 
 transferred to the circuit court. Fendall moved for and obtained 
 judgment against Turner for failure to pay him the amount levied 
 on his writ. Turner brought error.-^ 
 
 Marshall, C. J. : Tv/o questions have been made at the bar. 
 (i) Can an execution be levied on money? (2) Can it be levied on 
 money in the hands of the officer? 
 
 The principle that an execution can not be levied on money has 
 been argued to be maintainable under the authority of adjudged 
 cases, and under the letter and meaning of the act of the Virginia 
 legislature on the subject of executions. Yet no such case has been 
 adduced. Lord Mansfield, in the case cited from Douglas 219, 
 said "he believed there were old cases where it had been held that 
 the sheriff could not take money in execution even though he found 
 it in the defendant's scrutoir, and that a quaint reason was given 
 for it, viz., that money could not be sold," and it is believed that 
 there may be such cases, but certainly there are cases in which the 
 contrary doctrine has been held. In 2 Shower 166, it Is laid down 
 expressly that money may be taken on a levari facias, and no dif- 
 ference in this respect is perceived between the two sorts of execu- 
 tion. In Dalton's Sheriff 145, it is also stated in terms that money 
 may be taken in execution on a fieri facias. The court can perceive 
 
 may be taken in execution, and v/lienever an officer has it in his power to 
 satisfy an execution in his hands, it is his dut}^ to do so, and if he omits to 
 perform his duty he must be accountable to those who may be injured by the 
 omission." Per Marshall, C. J., in Turner v. Fendall, i Cranch. 117 (1801). 
 See also Fleetwood's Case, 8 Coke 340 (i&io) ; Francis and Nash, Temp. 
 Hard. 53 (1733) ; Henson v. Edzvards, 10 Ircd. (N. Car.) 43 (1S49) ; Stief v. 
 Hart, I N. Y. 20, 4 How Pr. (N. Y.) 223 (1847) ; Knox v. HiirJ, 18 Mo. 243 
 (1853). In Oystead v. Shed, 12. Mass. 505 (1815), it was held that private 
 papers and account books were not goods and chattels that could be sold on 
 execution. So also manuscripts. Dart v. WoodJiousc, 40 Mich. 399, 29 Am. 
 Rep. 544 (1879). Contra: IVashington Bank v. Fidelity Abstract Co., 15 
 W^ash. 487 (1896) and see Banker v. CaldzveU, 3 ]\Iinn. (Gil. 46) 94 (1859). 
 As to intoxicating liquors see Hincs V. Stahal, 79 Kans. 88, 99 Pac. 2^2, 131 
 Am. St. 280. 20 L. R. A., N. S., 11 18 (1908) and note. 
 
 "The facts arc abridged and onlj'^ extracts from the opinion of the court 
 printed.
 
 662 EXECUTION 
 
 no reason in the nature of thuiLis wliy an execution should not be 
 levied on nionev."' 
 
 But has numey not yet paid to the creditor become his prop- 
 erty? That is, allhoui^h his title to the sum levied may be com- 
 plete, has he tlie actual legal ownership of the specific pieces of 
 coin which the officer may have received? On principle the court 
 conceives that he has not this ownership. The judgment to be 
 satisfied is for a certain sum, not for the specific pieces which con- 
 stitute that sum, and the claim of the creditor on the sheriff seems 
 to be of the same nature with his claim under the judgment, and 
 one which may be satisfied in the same manner. No right v/ould 
 exist to ]nirsue the specific pieces received by the officer, although 
 they should even have an earmark; and an action of debt not of 
 detinue, may be brought against him if he fails to pay over the 
 sum received, or converts it to his own use. It seems to the court 
 that a right to specific pieces of money can only be acquired by 
 obtaining the legal or actual possession of them, and until this is 
 done there can be no such absolute ownership as that an execution 
 may be levied on them. A right to a sum of money in tlie hands 
 of a sheriff can no more be seized than a right to a sum of nioney 
 in the hands of any other person, and however wise or just it may 
 be to give such a remedy, the law does not appear yet to have 
 given it."' 
 
 "^Accord: King v. IVehh, 2 Show. i66 (i6Si); Armistcad v. Phil pot, i 
 Dougl. 231 (1779) ; Brooks v. Thompson, i Root (Conn.) 116 (1790) ; Handy 
 V. Dobbin, 12 Johns. (N. Y.) 220 (1815); Holmes v. Nimcaster, 12 Johns. 
 (N. Y.) 395 (1815) ; Summers v. Caldwell, 2 N. & McC. (S. Car.) 341 (1820) ; 
 Spencer v. Blaisdcll, 4 N. H. 198, 17 Am. Dec. 412 (1827) ; Sheldon v. Root, 
 33 Mass. (16 Pick.) ^67, 28 Am. Dec. 266 (1835) ; Hcrron's Apt>eal,j2Q F a. St. 
 240 (1857); Klin£[clter^Bm£^JL.JlLhMlh2 376 (1884); 
 
 Noble v. Kellv, 40 N. Y. 415 (iSGoYT' SulJrvan v. Tinker. 140 Pa. St. 3 .S. 21 
 At! 2^7 (1891); Exchange Nat. Bank of Montgomery v. Stewart, 158 Ala. 
 218, 48 So. 487 (1909). See P a. Act of Jun e 16^ 1836. P. h^2l5, §§ 24, 25; 
 New York Code Civ. Proci7?T4io. 
 
 ^Accord: Ross v. Clarke, 1 Dall. (U. S.) 354, i L- ed. 173 (1788); 
 Wilder v. Bailey, 3 Mass. 2S9 (1807) ; Knight v. Criddle, 9 East 48 (1807) ; 
 Dawson v. Holcomb, 1 Ohio 27s, 13 Am. Dec. 618 (1824) ; Dubois v. Dubois, 
 6 Cow. (N. Y.) 494 (1826) ; Prentiss v. Bliss, 4 Vt. 513, 24 Am. Dec. 631 
 (1832); Thompson v. Brown, 34 Mass. (17 Pick.) 462 (1835); Masters v. 
 Stanley, 8 Dowl. 169 (1840) ; Reddick v. Smith, 4 111. (3 Scam.) 451 (1842) ; 
 Collingridge v. Paxton, 11 C "B. 683 (1851) ; Clymer v. Willis, 3 Cal. 363, 58 
 Am. Dec. 414 (1853); Muscott v. Woolworth, 14 How. Pr. (N. Y.) 477 
 (1857) ; Sibert v. Humphries, 4 Ind. 481 (1853) ; Baker v. Kenworthy, 41 N. 
 Y 215 (1869) ; State v. Taylor, 56 Mo. 492 (1874) ; Hardy v. Tilton, 68 Maine 
 105, 28 Am. Rep. 34 (1S78); Smith v. McMillan, 84 N. Car. 593 (1881); 
 Manly v. McCarty, 5 N. J. L. 218 (1882). Contra: Dolby v. Mttllins, 3 Humph. 
 (Tenn.) 437, 39 Am. Dec. 180 (1842) ; New Haven Steam Saw Mill Co. v. 
 Fowler, 28 Conn. 103 (1859) ; Mann v. Kelsey, 71 Tex. 609, 12 S. W. 43. 10 
 Am. St. 800 (188S), and compare Harding. v. Stevenson, 6 H. & J. (Md.) 
 254 (1824) ; Crane v. Freese, 16 N. J. L. 305 (1838). 
 
 The principle has been applied to a surplus remaining in the sheriff's 
 hands after satisfaction of a prior execution. Fieldhonse v. Croft, 4 East 
 SIC (1804); Willows v. Ball, 2 B. & P. (N. S.) 376 (1806); Harrison v. 
 Paynter, 6 M. & W. 387 (1840) ; Wood v. Wood, 4 Ad. & El. (N. S.) 397 
 C1843). But the v.'eight of authority is contra. Jaquett v. Palmer, 2 Harr. 
 (Del.) 144 (1836) ; King v. Moore, 6 Ala. i5o, 41 Am. Dec. 44 (1844) ; Lang- 
 don V. Locket t, 6 Ala. 727, 41 Am. Dec. 78 (1844) ; Pierce v. Carleton, 12 111.
 
 BAYER V. DOSCHER 663 
 
 The mandate of the writ o£ fieri facias as originally formed, is 
 that the officer have the money in court on the return day, there to 
 be paid to the creditor. Forms of writs furnish strong evidence of 
 whsX was law when they were devised, and of the duty of the 
 officer to whom they are directed. 
 
 Judgment affirmed. 
 
 BAYER V. DOSCHER 
 
 Supreme Court of New York, Appellate Division, 1910 
 
 139 App. Div. (N. Y.) 324 
 
 Appeal by the defendant, John H, Doscher, from a judgment 
 of the Supreme Court in favor of the plaintiff. The complaint was 
 for services rendered, materials furnished and upon an account 
 stated. Judgment was demanded for $55.75. The defendant's an- 
 swer admitted that there was due the plaintiff $55 and alleged as 
 a defense that on a judgment obtained by Winthrop P. Soule against 
 Thomas P. Bayer for the sum of $85.85 an execution was duly 
 issued out of the Supreme Court and on December 2, 1909, the 
 sheriff "duly levied under said execution upon the sum of $55 in 
 cash, in the possession of the defendant herein, the property of the 
 aforesaid Thomas P. Bayer, plaintiff. That thereupon any and all 
 sums due from this defendant to the plaintiff were discharged and 
 satisfied." The facts thus alleged in the answer occurred after 
 the commencement of this action. The plaintiff demurred to the 
 foregoing defense on the ground that it was insufficient in law and 
 the court sustained the demurrer and gave judgment for $55.-^ 
 
 Cochrane, J. : The answer is insufficient as a defense to the 
 causes of action alleged in the complaint because there is no con- 
 nection shown between the money alleged to have been levied upon 
 as the property of the plaintiff and such causes of action." That 
 
 358, 54 Am. Dec. 405 (1851) ; Wheeler v. Smith, 11 Barb. (N. Y.) 345 (iS'^i) ; 
 Herron's Appeal, 29 Pa. St. 24Q (1857); Walton v. Compton, 28 Tex." 569 
 (1866) ; Roddey v. Erwin.'^i^S). Car. 36, 9 S. E. 729 (1888) ; Oppenheimer v. 
 Marr, 31 Nebr. 811, 48 N. W. 818, 28 Am. St. 539 (1891) ; Wiant v. Hays, 38 
 W. Va. 681, 18 S. E. 807, 23 L. R. A. 82 (1893) ; Young Smyth Field & Co. v. 
 Levy, 6 Super. Ct. Pa. 23 (1897); Commerce Vault Co. v. Barrett, 123 111. 
 App. 398 (1905) ; Turner v. Gibson, (Tex.) 152 S. W. 839 (1913). 
 
 As a general principle, and in the absence of statutes establishing a 
 special rule for particular cases, property in the custody of the law is not 
 subject to execution. Wineqardner v. Hafer .js.Vsi. St. 144. (1850); IViswall 
 V. Sampson, 55 U. S. 52, 14 L. ed. 322 (1852) ; Columbian Book Co. v. De 
 Golyer, 115 Mass. 67 (1874) ; First Nat. Bank v. Dunn, 97 N. Y. 149, 49 Am. 
 Rep. 517 (1S84) ; Rockland Bank v. Alden, 103 Maine 230, 68 Atl. 863 (1907). 
 
 ^^Part of the statement of facts and opinion of the court are omitted. 
 
 ^'To be subject to levy the identical money must be the property of the 
 debtor. It is not sufficient that the sum is owing to him or is on general 
 deposit in bank. Maxzvell v. McGee, 66 Mass. 137 (1853) ; McMillan v. 
 Richards, 9 Tal. 365, 70 Am. Dec. 655 (i8s8) ; Scott Kerr & Co. v. Smith, 
 2 Kans. 438 (1864) ; Carroll v. Cone, 40 Barb. (N. Y.) 220 (1862) ; Rozell v, 
 Rhodes, 116 Pa. St. 129, Q_ Atl. 160, 2 Am. St. 591 (1887) National ~BahT~of
 
 664 EXECUTION 
 
 irioiioy ninv have represented any cither transaction between the 
 ]>artics. ]\lonevs belonijing to a judgment debtor may be levied upon 
 under an execution. Code Civ. Pre, section 1410. But if the de- 
 fendant had in his possession money belonjjinjj to the plaintiff which 
 was thus levied upon, that could not affect the cause of action 
 ajrainst defendant for services rendered and material furnished or 
 on an account stated. He still remained indebted on those causes 
 of action. 
 
 Assuming, however, that the defendant intended to allege that 
 he paid to the sheriff on the execution against plaintiff the amount 
 which defendant admits having owed the plaintiff' on the causes of 
 action alleged in the complaint such payment was voluntary. It is 
 well settled that a chose in action is not subject to the lien of an 
 execution and is incapable of levy or seizure by the sheriff. Mc- 
 N'eely v. [fV/xr, 166 N. Y. 124; Clark v. Warren, 7 Lans. (N. Y.) 
 180; Clarke v. Goodridge, 41 N. Y. 210; Duffy v. Dawson, 2 Misc. 
 (N. Y.) 403. Defendant simply owed a debt to the plaintiff and 
 could not extinguish that debt by voluntarily paying some other debt 
 which the plaintiff owed. The sheriff could not levy on the debt of 
 defendant to plaintiff and defendant had no more right to volun- 
 tarily pay the sheriff than he had to pay the judgment creditor 
 directly.'® 
 
 Judgment affirmed. 
 
 the Republic v. Young, 125 111. App. 139 (1905); Summerfield v. Goldstein, 
 59 Misc. 387, 112 N. Y. S. 357 (1908) ; Wash v. Hendrick, 143 Ky. 443, 136 
 S. W. 883 (1911)- 
 
 ^'At common law choses in action were not subject to execution. Co. 
 Litt. 290b; Francis v. Nash, Lee Temp. Hardw. 53 (1733) ; Diindas v. Dutens, 
 I Ves. Jr. 196 (1790) ; Denton v. Livingston, 9 Johns. (N. Y.) 96, 6 Am. 
 Dec. 264 (1812) ; Wicr v. Davis, 4 Ala. 442 (1842) ; Johnson v. Crawford, 
 6 Blackf. (Ind.) 337 (1843) ; Moore v. Pillow, 3 Humph. (Tenn.) 448 (1842) ; 
 Rhoadsjv^ M^egonigal,2 Pa. S t. 3g Q845) ; Price v. Brady, 21 Tex. 614 (1858) ; 
 CTwndler v7 Caldzvcll, 17 Ind. 256 ( 1861 ) ; Brotver v. Smith, 17 Wis. 410 
 (1863) ; Dore v. Dougherty, 72 Cal. 232, 13 Pac. 621, i Am. St. 48 (1887) ; 
 Crawford v. Schmitc, 139 111. 564, 29 N. E. 40 (1891) ; Tradesmen's ^BlJ.a._^ 
 LoanAssn v Mnh^r^g P? Sjiprr ^<". 3411.^^809) ; Champagne v. Bloch Bros., 
 121 La. Ann. 193, 46 So. 207 (1908) ; Bidle v. Hamilton, 161 111. App. 587 
 (1911); In re Fritz's Estate, 83 N. J. Eq. 610, 91 Atl. 1017 (1914). As to 
 equity see note to Hall v. Henderson, 126 Ala. 449, 61 L. R. A. 621 (1900). 
 
 In many jurisdictions choses in action can be reached by attachment 
 or garnishment. And for certain classes of choses in action there are statu- 
 tory provisions for their sale upon execution. Such statutes mark the limits 
 of the ricrht and prescribe the manner in which it shall be exercised. California 
 Code Civ. Pro., § 688; Davis v. Mitchell, 34 Cal. 81 (1867) ; Hoxie v. Bryant, 
 131 Cal. 85, 63 Pac. 153 (1900) ; Iowa Code (1897) 3971; Burns' Ind. Ann. 
 Stat. (1914), § 763; Bay v. Saulspaugh, 74 Ind. 397 (1881) ; N. J. Comp. Stat. 
 (1910), p. 2244, § 4 ; Pq Art nf Jiinp TfS, t8^6, P. L. 7^^-;, ^ 22, P. & L. Dip. (2d 
 ed.) 3387: Rojelle v. Rhodes , I-I6 Pa. St. i29^ _Atl. 100, 2 Am. St. 591 (1887) ; 
 X. Y. Code Civ. Pro., § 141 1; McKecly v. Weh, 166 N. Y. 124, 59 N. E. 697 
 C1901) ; Henry v. Traynor, 42 Minn. 234, 44 N. W. II (1889) Judgments; 
 Fishhurn v. Loudershausen, 50 Ore. 363, 92 Pac. 1060, 14 L. R. A., N. S. 1234 
 C1907) Promissory notes; Freeman on Executions (3d ed.), § 112; Herman 
 on Executions, § 122.
 
 PARI-IAM V. THOMPSON 665 
 
 PARHAM V. THOMPSON 
 Court of A.ppeals of Kentucky, 1829 
 2 7. /. Mar. (Ky.) 159 
 
 Robertson, J. : The only question which it is necessary to 
 decide in this case is whether a creditor who has a fieri facias 
 against the estate of his debtor is guilty of a trespass, by entering 
 on land in the possession of the debtor, for the purpose of assisting 
 the officer to levy the execution on the growing crop, and afterward 
 entering, to bid at the sale of the crop, before it is ripe, or is secured. 
 A fieri facias may be levied on a growing crop ; it is a chattel. It 
 is "fructus industriale," which goes to the executor; 2 Tidd's Pr. 
 917; Gil. Executor, 19; i Salk. 368; 2 Bl. Coram. 428; Toller, 204. 
 
 Corn growing passes to the devisee of the personal property, 
 and not to the devisee of the land. Toller 204 ; Swin. 933. It passes 
 by parol contract. Roberts on Frauds 126; Noble v. Smith, 2 Johns. 
 (N. Y.) 52; I Ld. Raym. 182; Bui. Ni. Pri. 34. 
 
 Consequently, although it may be inconsistent, and injurious, 
 to sell growing corn, and therefore the general practice is to wait 
 after the levy, until it shall be gathered ; yet the legal right to sell 
 it before it shall be gathered, results from its personal character 
 and the right to le\y on it. See Tidd. 91, and Whipple v. Foote, 2 
 Johns. (N. Y.) 422. The argument "ab inconvenienti" applies no 
 more to this case tlian it would to the mere right to sell anything 
 else which is immature, as a colt or a pig. 
 
 The creditor, therefore, is not a trespasser, by entering with 
 the sheriff, to levy and to sell ; nor for directing the sale, and pur- 
 chasing the crop, if the process be regular, the judgment valid, and 
 the sale fair, as they all seem to have been in this case. 
 
 Judgment af^rmed.-^ 
 
 ^"Accord : Penhallow v. Dzvight, 7 Mass. 34, 5 Am. Dec. 21 ( 1810) ; 
 Stewart v. Doughty, 9 Johns. (N. Y.) 108 (1812) ; Hartwell v. Bissell, 17 
 Johns. (N. Y.) 128 (1819) ; Peacock v. Purvis, 2 Brod. & Bingh. 362 (1820) ; 
 Stambaugh v. Yeates, 2 Raw le (Pa.) 161 (1828) ; Craddock v. Riddlesbarger, 
 2 Dana (Ky.) 205 (1834); SimtJTw'Tritt, i Dev. & Bat. (N. Car.) 241, 28 
 Am. Dec. 565 (1835); Shepard v. Philbrick, 2 Den. (N. Y.) 174 (1846); 
 Northern v. State, I Ind. 113 (1848) ; Wharton v. Naylor, 12 Ad. & El. 
 (N. S.) 673 (1848) ; gggrvgt^grr, 16 Pa. St. 175, 55 Am. Dec. 490 (1851); 
 State V. Cemmill, i Houst. (Del.) 9 (i8s5; ', Mackenzie & Son v. Lamplcy, 31 
 Ala. 526 (1858) ; Bloom v. IVelsh, 27 N. J. L. 177 (1858) ; Lindley v. Kclley, 
 42 Ind. 294 (1873) ; Pickens v. Webster, 31 La. Ann. 870 (1879); Gillitt v. 
 Truax, 27 Minn. 528, 8 N. W. 767 (1881) ; Crine v. Tifts & Co., 65 Ga. 644 
 (1880) ; Preston v. Ryan, 4=^ Mich. 174, 7 N. W. 819 (1S81) ; Long v. Seavers, 
 103 Pa. St. m7 (188O ; Willis v. Moore, 59 Tex. 628, 46 Am." Rep. 284 (1883) ; 
 Sele'cman V. Kinnard, 55 Mo. App. 635 (1893) ; Policy v. Johnson, 52 Kans. 
 478, 35 P'ic. 8, 23 L. R. A. 258 (1893) ; Voils v. Battin, 6 Kans. App. 742, 50 
 Pac. 940 (1897) ; Sims v. Jones, 54 Nebr. 769, 75 N. W. 150, 69 Am. St. 749 
 (1898) ; GordQ n_\ Gordon, a^ Pa. Super. Ct. 95 (191 1). In some states, how- 
 ever, it is only when severed or fit to be severed that crops are deemed sub- 
 ject to leyy. Heard v. Fairbanks, 46 Mass. (5 Mete.) iii, 38 Am. Dec. 394 
 C1842) : N orris v. Watson, 22 N. H. 364, 55 Am. Dec. 160 (1851) ; Burleigh
 
 OOO EXECUTION 
 
 POOLE'S CASE 
 At Nisi Prius in Middlesex, 1703. 
 
 iSalk. 368 
 
 Tenant for years made an under-lease of a house in Holborn 
 to J. S., who was by trade a soap boiler. J. S., for the convenience 
 of "his trade, put up fats, coppers, tables, partitions, and paved the 
 back-side, etc. And now upon a fieri facias against J. S., which 
 issued on a judgment in debt, the sheriff took up all these things, 
 and left the house stripped, and in a ruinous condition ; so that the 
 first lessee was liable to make it good, and thereupon brought a spe- 
 cial action on the case against the sheriff, and those that bought the 
 goods, for the damage done to the house. Et per Holt, C. J., it was 
 held, 
 
 First. — That during the term the soap-boiler might well remove 
 the fats he set up in relation to trade, and that he might do it by 
 the common law (and not by virtue of any special custom) in favor 
 of trade and to encourage industry ■/'" but after the term they become 
 a gift in law to him in reversion, and are not removable.^^ 
 
 Secondly. — That there was a difference between w-hat the soap- 
 
 V. Piper, 51 Iowa 649, 2 N. W. 520 (1879) Scolley v. Pollock, 65 Ga. 339 
 (1880) ; Ellithorpc v. Reidcsil, 71 Iowa 315, 32 N. W. 238 (1887) ; Tipton v. 
 Martzell, 21 Wash. 273, 57 Pac. 806, 75 Am. St. 838 (1889). In other states 
 statutes expressly restrict the levy or sale to crops that have matured. 
 Gillitt V. Truax, 27 Minn. 528, 8 N. W. 767 (1881) ; Farmer's Bank v. Morris, 
 79 Kv. 1^7 (1880) ; Edwards v. Thompson, 85 Tenn. 720, 4 S. W. 913, 4 Am. 
 St. 807 (1S87); Keslcr v. Cornelison, 98 N. Car. 2>^2„ 2 S. E. 839 (1887). 
 
 "Friictus naturales" while unsevered are not subject to execution as 
 personalty. Sparrozsj V. Pond, 49 Minn. 412, 52 N. W. 36 (1892) ; Adams v. 
 Smith, I Breese (III.) 283 (1828) ; Bank of Lansingburgh v. Crary, i Barb. 
 (X. Y.) 542 (1847) ; Rogers v. Elliott, 59 N. H. 201, 47 Am. Rep. 192 (1879). 
 As to peaches compare State v. Gemmill, 1 Houst. (Del.) 9 (1855), with 
 Wilson V. Fowler, 88 Md. 601, 42 Atl. 201 (1898). As to trees in a nursery 
 compare Miller v. Baker, 42 Mass. 27 (1840), with Maples v. Millon, 31 Conn. 
 598 (1863). 
 
 Quaere: Can a sheriff seize and sell crops of seed sown before they are 
 sprung up? Bagshaw v. Farnsworth, 2 L. T. (N. S.) 390 (i860). 
 
 '"A fixture erected by a tenant on demised premises, for the purpose of 
 carrying on his trade is personal property and may be removed or levied on 
 by fieri facias against him. Cresson v. Stout, 17 Johns. (N. Y.) 116, 8 Am. 
 l^ec. 373 (1819) ; Pitt V. Shew, 4 B. & Aid. 206 (1S21) ; Winn v. Ingilby, 5 
 B. & Aid. 625 (1822) ; Farrant v. Thompson, 5 B. & Aid. 826 (1822) ; Doty 
 V. Gorham, 22 Mass. 487 (1827); Wetherby v. Foster, 5 Vt. 136 (1832) 
 Taffe V. Warnick, 3 Blackf. (Ind.) in, 23 Am. Dec. 383 (1832) ; ljum£^ 
 Miles. A Watts (Pa.) 3.-^ o (1835); Ombony v. Jones, 19 N. Y. 234 (1859) 
 Slate V. Bonham, 18 Ind. 231 (1862) ; Hey y. Bruner, 61 Pa. ^87 (1S69) . 
 Fifield v. Maine Cent. R. Co., 62 Maine 77 (1873) : He finer v. Lewis , 23_Iji. 
 
 .St^302 (1873) ; Antrim v. Dobbs, L. R. 30 In 424 (1891) ; Gallagher v. L>av is, 
 1 79 Pa._S t_^04^36 Atl. 319 (1897); Crossley Bros. v. Cee, L. R. (1908) 
 
 "Lyde v. Russell, i B. & Ad. 394 (1830) ; Minshall v. Lloyd, 2 M. & W. 
 450 (1837); Throt>t>'s Appeal, 70 Pa. St. vy=^ (1872); Donnewald v. Ttirner 
 Real Estate Co'., ^\ Mo. App. 350 (1891) ; Morey v. Hoyt, 62 Conn. 542, 26 Atl. 
 127, 19 L. R. a1 611 (1893) accord.
 
 PETERSON V. SAN FRANCISCO 66/ 
 
 boiler did to carry on his trade, and v/hat he did to complete the 
 house, as hearths and chimney pieces, which he held not removable,^^ 
 Thirdly. — That the sheriff might take them in execution, as well 
 as the under-lessee might remove them, and so this was not like 
 tenant for years without impeachment of waste; in that case he 
 allowed the sheriff could not cut down and sell, though the tenant 
 might; and the reason is, because in that case the tenant hath only 
 a bare power without an interest ; but here the under-lessee hath an 
 interest as well as a power, as tenant for years hath in standing 
 corn, in which case the sheriff can cut down and sell. 
 
 PETERSON V. SHERIFF OF SAN FRANCISCO 
 
 Supreme Court of California, 1896 
 
 115 Col. 211" 
 
 McFarland, J. : The appellant filed a petition in the superior 
 court for a writ of mandate. He averred in his petition (briefly) 
 that he had obtained a judgment in a justice's court against the 
 Eureka Electric Company, a corporation, for two hundred and 
 thirty-three dollars and fifty cents ; that he had taken out an execu- 
 tion upon said judgment, which had been returned nulla bona; 
 that upon an examination of the secretary of said company he 
 discovered that it was the owner of two certain United States 
 letters patent, and the inventions covered thereby; that thereupon 
 he procured an alias execution, which he delivered to the sheriff 
 with instructions "to levy upon, advertise, and sell all the right, 
 title and interest of said defendant, the Eureka. Electric Company, 
 
 '"Real fixtures, articles so annexed to the freehold as to pass as a part 
 thereof, are not subject to levy as personalty. The difficulty lies in deciding 
 what is such a fixture, and can only be determined by reference to the sub- 
 stantive law of fixtures. Compare Goddard v. Chase, 7 Mass. 432 (1811); 
 Voorhis v. Freem an, 2 Watts & S. (P a.) 116, 37 Am. Dec. 490 (1841); 
 IVinslow v. Merchants InsT'Co., 45 (4 TVletc.) Mass. 306, 38 Am. Dec. 368 
 (1842) ; Rice V. Adams, 4 Harr. (Del.) 332 (1S45) ; Har lan v. HarlaHj^lS Pa. 
 St. 507 , 53 Am. Dec. 612 (1850) ; Titus v. Mabce, 2^111.' 2S7 T1861) ; Titus v. 
 'Gmlieimer, 27 111. 462 (1861); Strickland v. Parker, 54 Maine 263 (1866); 
 Latham V. Blakely, 70 N. Car. 368 ( 1874) ; Keve v. Paxton, 26 N. J. Eq. 107 
 (1875) ; Newhall & Stebhins v. Kinney, 56 Vt. 591 (1884) ; Hackett v. Ams- 
 den, 57 Vt. 432 (1885) ; McNally v. Connolly, 70 Cal. 3, il Pac. 320 (1886) ; 
 Willis v. Morris, 66 Tex. 628, I S. W. 799, 59 Am. Rep. 634 (1886) ; Hopewell 
 Mills V. Taunton Sav. Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 
 Am. St. 235 ( 1S89) ; Friedlander v. Ryder, 30 Nebr. 783, 47 N. W. B>z, 9 L. R. 
 A. 700 (1890); Svoitzer v. Allen, 11 Alont. 160, 27 Pac. 408 (1891), with 
 Sturgis v. Warren, 11 Vt. 433 (1839) ; Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. 
 Dec. 634 (1S33); Hutchman 's Appea l, 27 Fa.. St. 209 (1856): Murdoch v. 
 Gifford, 18 N. Y. 28 (1858) ; Vaughcn v. Haldeman, 33 Pa. St. 522 , 75 Am. 
 Dec. 622 (1859) ; Jo hnson y.^ reTiajTy, 43^Ta. SE^o87 82 Am. Dec. 568 (1862). 
 
 "The arguments of counieTare omitted. ~
 
 66S r.xF.cuTioN 
 
 in and to ?nid letters patent, and the iincntions covered and pro- 
 tected thereby"; and that the said sheriff refused to advertise and 
 sell said rights, etc., of said company to said patent rights. Where- 
 fore, he prayed for a writ of mandamus requiring the sheriff "to 
 advertise and sell all the right, title and interest" of said company 
 in and to said patent rights. A general demurrer to the petition was 
 sustained by the sui'icrior court, and judgment was entered for the 
 respondent. From this judgment the petitioner appealed. 
 
 The demurrer was properly sustained. There is no method by 
 which tlie sheriff could levy upon said property. It was neither 
 "personal property, capable of manual delivery," which, under sub- 
 division 3 of section 542 of the Code of Civil Procedure, must be 
 attached by taking it into custody, nor does it come under the cate- 
 gory of "debts and credits, and other personal property not capable 
 of manual delivery," which must be attached by leaving notice with 
 a third person owing such debts or having such credits or personal 
 property in his possession. A patent right is a thing created entirely 
 by federal legislation. It is a personal favor or monopoly granted 
 to a particular person by the United States Goverjiment. It could 
 not be transferred to another person at all, if the government had 
 provided no method of transferring it ; but the government has 
 provided that it may be transferred by assignment, and that is the 
 only method by which it can be transferred. And if a creditor of 
 the patentee can have the patent right subjected to the satisfaction 
 of his judgment at all, it can be done only by a court of equity, 
 acting in personam and compelling the patentee to make an assign- 
 ment. It can not be advertised and sold under a common execution ; 
 as before said, there is no way in which it can be levied upon ; and 
 the mere advertising and selling of it upon notice could convey 
 nothing to the purchaser. Carver v. Peck, 131 Mass. 291, and cases 
 there cited ; Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120. 
 In Carver v. Peck, supra, the court says : "The incorporeal and in- 
 tangible right of an inventor or an author in a patent or a copyright 
 can not be taken on execution at law." In Pacific Bank v. Robinson, 
 supra, the court says: "But a patent right is not tangible property. 
 It is an incorporeal thing, subsisting in grant from the Government 
 of the United States. Yet it is subjected to some of the legal inci- 
 dents of ov/nership of tangible property, such as succession and 
 transfer; but as a creation of legislation it is transferable only 
 according to the provisions of the statutes which created it, and the 
 only question is, has a court of equity power to compel its assign- 
 ment and sale for the benefit of judgment creditors?" 
 
 The judgment appealed from is affirmed.^* 
 
 "Accord: Cooper v. Gitnn, 4 B. Mon. (Ky.) 594 (1844); Stephens v. 
 Cady, 14 How. (U. S.) 528, 14 L. ed. 528 (1852) ; Stevfns v. Gladding, 17 
 How. (U. S.) 447, 15 L. ed. 155 (1854) ; Banker v. Caldwell, 3 Minn. (Gil. 46) 
 94 (1859) ; Carver v. Peck, 131 Marss. 291 (1881) ; Harrin^LoiLJl^ Cmnbrid_ge, 
 jitJ^L^jJCas^-tEaJ 456 (1884); Newton y. B jicks. 72 Pa..^SL J?77 (i8g6) ; 
 Ball V. Coker, 168 Fed. 304 (1909). In Fennsylvania a pate nt right own«d by^ 
 an insolvent corporation may be sold under the special fieri facias Act of \
 
 DENTON v. LIVINGSTON 669 
 
 DENTON V. LIVINGSTON 
 
 Supreme Court of New York, 1812 
 
 9 Johns. (iV. Y.) 96 
 
 Assumpsit by the plaintiff against the defendant to recover 
 money alleged to have been collected and received upon a u^rit of 
 venditioni exponas, issued out of the Supreme Court and directed 
 to tlie defendant as sheriff of the county of Columbia at the suit of 
 the plaintiffs, against the goods of one Samuel Edmonds. 
 
 The plaintiffs proved that the amount of the sales was sufficient 
 to satisfy their execution. 
 
 The defendant proved that among the goods and chattels sold 
 ■was a share in the Bank af Columbia which sold for fifty dollars, 
 and three shares in the Hudson Library, which sold for nine dol- 
 lars. The defendant contended that the shares were not liable to 
 be sold on execution, and that the defendant was not liable for them, 
 Ashley, the purchaser, having refused to pay for them. 
 
 The judge charged the jury that the plaintiffs were not entitled 
 to recover for the shares and that the jury must find for the plain- 
 tiffs after deducting these, and other, items. The jury accordingly 
 found a verdict for the plaintiffs.^^ 
 
 Kent, C. J. : The bank stock and library shares were levied 
 on by mistake, for these were mere choses in action, and not the 
 subject of a le\y and sale by fieri facias any more than bonds and 
 notes ; and such things can not be taken in execution. Francis v. 
 Nash, 2 Geo. II K. B. cited in Com. Dig. tit. Execution, ch. 4.^° 
 
 But, on other grounds, rule granted for new trial. 
 
 April 7, 1870, P. L. 58. Erie Wringer Mfg. Co. V. National Wringer Co., 63 
 Fed. 248 (1894); £/affff v Famsmort h, 12 W . N^Cas.JPa.) 500 (1882). 
 
 A patent right or copyright althoiTgh ribt^iibJecrto~executioh at law may- 
 be subjected by a court of chancery to the payment of a judgment debt of 
 the patentee. Agcr v. Murray, 105 U. S. 126, 26 L. ed. 942 (1881) ; Gordon 
 V. Anthony, 16 Blatch. (U. S.) 234, Fed. Cas. No. 5605 (1897) ; Gillett v. 
 Bate, 86 N. Y. 87, 10 Abb. N. Cas. 88 (1881) ; Gorrell v. Dickson, 26 Fed. 454 
 (1886) ; Pennsvlvan ia^^ct of Ma^_Q^_i889^ _P. L. 172, P. & L. Dig. (2d ed.) 
 1361 ; Doud & Miller v. Bonta Plate Glass Co., 28JPitts. L. J. JK_S.) 358 
 (1898). And, in New York, also^by~proceedihgs suppTementary'to execution. 
 Barnes v. Morgan, 3 Hun (N. Y.) 703 (1875). 
 
 In Brooks v. Cassebeer, 157 App. Div. (N. Y.) 683, 142 N. Y. S. 781 
 (1913), it is held that an execution will not lie against voluntary payments 
 by husband to wife after separation. 
 
 °^The statement of facts is paraphrased and only so much of the case as 
 relates to the shares of stock printed. 
 
 ^"At common law shares of stock in a corporation were not subject to 
 execution. Cooper v. Dismal Szvamp Canal Co., 2 Murphy (N. Car.) 195 
 (1812); Williamson v. Smoot, 7 Mart. (O. S.) (La.) 31, 12 Am. Dec. 494 
 (1819) ; Nashville Bank v. Ragsdale, Peck (Tenn.) 296 (1823) ; ^ Sjaymake r 
 y. Bank of Gettysburg. 10 Pa. St. -^7;^ (184 0) at p. 375; Foster \. t" otter, 
 2,7 JWlo. 525 ( 1866) ; Van Norman v. Jackson, 45 Mich. 204, 7 N. W. 796 
 (1881) ; Barnard v. Life Jns. Co., 4 Mackey (15 D. C.) 63 (1885) ; Rhea v. 
 Powell, 24 111. App. 77 (1887) ; In re Leavesley, L. R. (1891), 2 Ch. Div. I at 
 p. 7; Fowler v. Dickson, i Boyce (Del.) 113, 74 Atl. 601 (1909) at p. 122.
 
 O/O 
 
 EXECUTION 
 
 GUE V. THE TIDE WATER CANAL CO. 
 
 Supreme Court of the United States, i860 
 
 6s U. S. 25/' 
 
 Taney, C. J. : It appears from the record in this case that a 
 judgment was obtained by Robert Gtie, the appellant, against the 
 Tide Water Canal Company, in the Circuit Court of the United 
 States for the District of Maryland, upon which he issued a fieri 
 facias, and the marshal seized and advertised for sale a house and 
 lot, sundry canal locks, a wharf, and sundry other lots ; all of which 
 property, it is admitted, belonged to the canal company in fee. 
 
 The canal company thereupon filed their bill in the circuit court, 
 praying an injunction to prohibit the sale of this property under 
 the fieri facias. The injunction was granted, and afterward, on final 
 hearing, made perpetual. And from this decree the present appeal 
 was taken. 
 
 In most jurisdictions the common-law rule has been changed by statute, but, 
 where a levy upon and sale of stock is authorized by law, the provisions of 
 the statute must be substantially observed or the sale will be treated as void. 
 Hoxve V. Starkweather, 17 Mass. 240 (1821) ; Princeton Bank v. Crozcr, 
 22 N. J. L. 383, 53 Am. Dec. 254 (1850) ; Blair v. Compton, 2)i Mich. 414 
 (1876); Voorhis v. Terhnne, 50 N. J. L. 147, 13 Atl. 391, 7 Am. St. 781 
 (1887) ; Feige v. Burt, 118 Mich. 243, yy N. W. 928, 74 Am. St. 390 (1898). 
 The legislation upon this subject in the different states varies greatly. See 
 Cook on Stock and Stockholders (3d ed.), § 483; Cal. Code Civ. Pro., § 688; 
 N. J. Comp. Stat. (1910), p. 2244; Mass. Rev. L. (1902), ch. 177, §§46-51 ; Peo- 
 ple v. Goss & P. Mfg. Co., 99 111. 355 (1881) ; State v. First Nat. Bank, 89 Ind. 
 302 (1883) ; Nashville Trust Co. v. Weaver, 102 Tcnn. 66, 50 S. W. 763 (1808). 
 In New York the stock of a debtor may be reached by attachment, Code Civ. 
 Pro., § 647; Plympton V. Bigclow, 11 Abb. N. Cas. (N. Y.) 180, 63 How. Pr. 
 (N. Y.) 484 (1882) ; O'Brien v. Mechanics &c. Ins. Co., 56 N. Y. 52, 15 Abb. 
 Pr. (U. S.) 222, 46 How. Pr. (U. S.) 429 (1874). InPcnnsxkania,_ execu- 
 tion against the stock of a corporation held by a defendant may be, either 
 by fieri facias under the Act of JMarch 29, 1819, 7 Sm. L. 217, § 2, or by 
 attachment execution under § 34 of the act of June 16, 1836, P. L. 755, P. & L. 
 Dig. (2d ed.) Ml"? ; Commonwealth v. Watmough, 6 Wliart. (Pa.) 1 17 (1840) ; 
 Lex V. Potter-Zj i6 _Pa. St 295 (i 8577 \lVcaver^v^lTunting3bn & B. T M. R. 
 &c Co^ 50 Pa. Str3iTTi865). Shares~oI national Fank stock may be sold, 
 5j7ji££L!E£iflIc^-i65l^- St. 184, 30 Atl. 746 (1895) ; Oldacre v. Butler, 116 
 
 Ala. 652, 23 So. 3 (iSgTir , ^ , . , j • -i r .1 
 
 The situs of stock for the purpose of attachment is the domicile ot the 
 corporation issuing the shares. Christ mas v . Biddle, i?> Pa. St. 223. (1850); 
 Plimpton V. Bigeloiv, 93 N. Y. 592,~4TTv. Pro7i89(iF83) ; Jellemck v. Huron 
 Copper Min. Co., 177 U. S. i, 44 L- ed. 647 (1899) ; Daniel v. Gold Hill Min. 
 Co.. 28 Wash. 411, 68 Pac. 884 (1902); Gundry v. Kcakirt, 173 Fed. 167 
 (1909), see Young v. South Tredegar iron Co., 85 Tenn. 189, 2 S. W. 202, 
 4 Am. St. 752 (1886) ; Dean R. Tel. Co. v. Howell, 162 Mo. App. ico, 144 
 
 S. W. 135 (1911). ,„,.., „ J t, 1 r 
 
 In England by the statute of l & 2 \ ict., ch. no, s 14 and the rules of 
 the Supreme Court, Order XLVI, rules I to 11, if a person against whom a 
 judgment has been entered holds government stock, or stock or shares in any 
 public company in England, the court may, on application of the judgment 
 creditor, order such stock to stand charged with the payment of the amount 
 due. In re Hutchinson, L. R. 16 Q. B. Div. 515 (1885); In re Leavesley, 
 L R. (1891) 2 Ch. Div. I. 
 
 ''The arguments of counsel are omitted.
 
 GUE V. TIDE WATER CANAL CO. 67I 
 
 The Tide Water Canal is a public improvement situated in the 
 State of Maryland, and constructed and owned by a joint stock 
 company chartered by the State of Maryland for that purpose. The 
 canal extends from Havre de Grace, in Maryland, to the Pennsyl- 
 vania line ; and it is admitted that the property levied on is necessary 
 for the uses and working of the canal. 
 
 Upon the matters alleged in the bill and answer several ques- 
 tions of much interest and importance have been raised by the 
 respective parties, and discussed in the argument here. But we do 
 not think it necessary to decide them, nor to refer to them partic- 
 ularly, because, if it should be held that this property is liable to be 
 sold by a judicial proceeding for the payn;ient of this debt, yet it 
 would be against equity and unjust to the other creditors of the 
 corporation, and to the corporators who own the stock, to suffer 
 the property levied on to be sold under this fieri facias and conse- 
 quently the circuit court was right in granting the injunction. 
 
 The Tide Water Canal is a great thoroughfare of trade, through 
 which a large portion of the products ot the vast regions of country 
 bordering on the Susquehanna river usually passes, in order to 
 reach tide water and a market. The whole value of it to the stock- 
 holders consists in a franchise of taking toll on boats passing through 
 it, according to the rates granted and prescribed in the act of assem- 
 bly which created the corporation. The property seized by the mar- 
 shall is of itself of scarcely any value, apart from the franchise of 
 taking toll, with which it connected in the hands of the company, and 
 if sold under this fieri facias without the franchise, would bring 
 scarcely anything; but would yet, as it is essential to the working 
 of the canal, render the property of the company in the franchise, 
 now so valuable and productive, utterly valueless. 
 
 Now it is very clear that the franchise or right to take toll on 
 boats going through the canal would not pass to the purchaser 
 under this execution. The franchise being an incorporeal heredita- 
 ment, can not, upon the settled principles of the common law, be 
 seized under a fieri facias. If it can be done in any of the states, 
 it must be under a statutory provision of the state; and there is 
 no statute of Maryland changing the common law in this respect. 
 Indeed, the marshal's return and the agreement of the parties shows 
 it was not seized and consequently, if the sale had taken place, the 
 result would have been to destroy utterly the value of the property 
 owned by the company, while the creditor himself, would most 
 probably, realize scarcely anything from these useless canal locks, 
 and lots adjoining them. 
 
 The record and proceedings before us show that there were 
 other creditors of the corporation to a large amount, some of whom 
 loaned money to carry on the enterprise. And it would be against 
 the principles of equity to allow a single creditor to destroy a fund 
 to which other creditors had a right to look for payment, and 
 equally against the principles of equity to permit him to destroy the 
 value of the property of the stockholders, by dissevering from the 
 franchise property which was essential to its useful existence.
 
 672 EXECUTION 
 
 In tills view of the subject, the court do not deem it proper to 
 express any opinion as to the right of this creditor, in some other 
 form of judicial proceeding, to compel the sale of the whole prop- 
 erty of the corporation, including the franchise, for the payment of 
 his debt. Nor do wc mean to express any opinion as to the validity 
 or operation of the deeds of trust and acts of Assembly of the 
 Slate of Maryland, referred to in the proceedings. If the appellant 
 has a right to enforce the sale of the whole property, including the 
 franchise, his remedy is in a court of chancery, where the rights and 
 priorities of all the creditors may be considered and protected, and 
 the property of the corporation disposed of to the best advantage, 
 for tlie benefit of all concerned. A court of common law, from the 
 nature of its jurisdiction and modes of proceeding, is incapable of 
 accomplishing this object; and the circuit court was right in grant- 
 ing tlie injunction, and its decree is therefore affirmed.^^ 
 
 *^At common law a public franchise can not be taken and sold upon fieri 
 facias. AiniuQiiJ v^New Alexandria & P. Turnpike Road Co., i.^ Serg. &_ R. 
 (Pa.) 210, 15 Am. Dec. S93 (^^STJ^^^ymoitr \. Mi fjord & C. Tpk. Co~ 10 
 Ohio 476 (1841) ; Susquehanna Can al Co^. Bonhani^g Watts&S,_(PA.) 27, 
 42 Am. Dec. 315 ^845) ; .b/a/^ v.' Rives, 5 Tred^'^CI?: Xar.)~~297 (1844); 
 Winchester & L. Tpk. Co. v. Vimont, 5 B. Men. (Ky.) I (1S14) ; Thomas v. 
 Armstrong, 7 Cal 286 (1857) ; James v. Pontiac P. R. Co., 8 Mich. 91 (1860) ; 
 Richardson V. Sibley, 03 Mass. 65 (il Allen), By Am. Dec. 700 (1865); 
 Steii-art V. Jones, 40 }vIo. 140 (1867); Foster & Co. v. Fozi'ler & Co .. 60 
 Fa. St. 27 (1S68); Youncman \. El mira K. Co^, 65; Pa. St. 278, (1870); 
 Hatcher v. Toledo, Wabash &~W. R. Co., 62 nr477~(i872) ; Randolph 
 V. Lamed, 27 N. J. Eq. 557 (1876) ; Palestine City v. Barnes, 50 Tex. 
 538 (187S) ; Ba.rter V. Nashville & H. Turnpike Co., 10 Lea. (Tenn.) 48S 
 (1882) ; East Ala. R. Co. v. Doe, 115 U. S. 340, 5 Sup. Ct. 869, 29 L. ed. 
 136 (18S4); Louisville &c. R. Co. v. Boney, 117 Ind. 501, 20 N. E. 432, 
 3 L. R. A. 435 (18S8) ; Brady v. Johnson, 75 Md. 445, 26 Atl. 49, 20 L. R. A. 
 7}.7 (1S92). But in most jurisdictions statutes have provided a method by 
 v.hich franchises ma}' be subjected to execution which must be strictly fol- 
 lowed in order to make a valid sale. California Code Civ. Pro., § 388, 
 Gregory v. Blanchard, 98 Cal. 311, 33 Pac. 199 (1893) ; 2 Consolidated Laws 
 N. Y., "Corporations," §§ 70-6; Penna. Act of April 7 1870, P . L. 58, § i, P. 
 & L. Dig. (2d ed.) 3517; Maiisel v. .l)'czv York (yc. K. Co , ii\ Pa . St. 606, 
 ZZ Atl. 2)77 (1895) ; Smith y7Z4ltoj )na & P.R^(Jd.,iS2 Pa. St.,,i39, 37 Atl. 930 
 (1807); Sinyiwns v. ly arUimpTo n. i7o'^fass7~2o;^. 49 N. E. 114 (1897); 
 Williams V. East Wdreham '&'c.lT. Co., 171 Alass. 61, 50 N. E. 646 (1898) ; 
 Keystone Bank V. Donnelly, 196 Fed. 832 (1912). As laid down in the prin- 
 cipal case, property indispensably necessary for the exercise of a public 
 or quasi public franchise is not subject to execution unless made so by 
 statute. rj^r^^^2iS- P'^'-'^'iT^i , F. W. &c. R. Co ., 3-Pllila^CEa.) I73 (1858); 
 Foster & Co. v. Foivler & Co.. 60 Pa. bt. ^7^ (18 68) ; Hackley v. Mack, 60 
 Mich. 591, 27 N. W. 871 (1886) ; Northern Pacific R. Co. v. Shimmel, 6 Mont. 
 161, 9 Pac. 889 (18S6), office safe not subject to execution; Sherman County 
 Irrigation Co. v. Drake, 65 Xcbr. 699, 91 N. \V. 512 (1902). Contra: Boston 
 & C. & M. R. V. Cilmore, 37 N. H. 410, 72 Am. Dec. 336 (1858) ; Lathrop v. 
 Middlcton, 23 Cal. 257, 83 Am. Dec. 112 (1863) ; Risdon Iron & Locomotive 
 Works v. Citizens' Traction Co., 122 Cal. 94, 54 Pac. 529, 6S Am. St. 25 
 (189S) ; Tulare I. Dist. v. Collins, 154 Cal. 446, 97 Pac. 1124 (1908). So, w^here 
 the franchise is no longer exercised the property becomes subject to execu- 
 tion. Benedict v. Heineberg, 43 Yt. 231 (1870) ; Gardner v. Mobile & N. W. 
 R. Co., 102 Ala. 635, 15 So. 271, 48 Am. St. 84 (1893). 
 
 The property of strictly private corporations is liable to be taken on 
 execution precisely as the property of an individual debtor. Overton Bridge 
 Co. V. Means, 33 Nebr. 857, 51 N. W. 240, 29 Am. St. 514 (1892) ; Reynolds
 
 LYOX V. CITY OF ELIZABETH 673 
 
 LYON V. CITY OF ELIZABETH 
 
 Supreme Court of New Jersey, i88i 
 
 43 A^ /. L. 158 
 
 Van Syckel, J. : The plaintifif having recovered a judgment 
 against the city of Elizabeth in this court, caused a M^rit of fieri 
 facias to be issued thereupon, by virtue of which the sheriff of 
 Union county has levied upon eight several lots of land in said 
 city, and advertised the same for sale to satisfy said judgment. 
 
 Lots numbers i, 2, 3, 4 and 7 were purchased by the city at a 
 sale made under the authority of the city charter for unpaid taxes 
 assessed thereon. Lots numbers 5 and 6 were conveyed to the city 
 for the purpose of erecting school houses thereon for public schools, 
 but no school house has, as yet, been erected upon either lot. Lot 
 number 8, upon which there is a dwelling house, is a lot lying within 
 the exterior lines of a public street recently laid out by the city. The 
 lot has been condemned for the purposes of the highway, but the 
 house has not yet been removed, and is rented to a tenant. 
 
 On behalf of the city application is made to set aside this levy. 
 In England an action would not lie against a quasi political 
 corporation for breach of duty except by force of positive law, as 
 in the case of neglect to make hue and cry, for which an action 
 was given against the hundred by the statute of Winton. 13 Edw. I. 
 Upon the rendition of judgment the remedy for enforcing its pav- 
 ment was not by execution against the property of the corporation, 
 but by levying the damages out of the property of any one or more 
 of the persons within the limits corporate.'^ 
 
 Outside of the New England states it has never been held that 
 the creditors of a municipal corporation can resort to the individual 
 property of the inhabitants to satisfy a judgment obtained against 
 the corporate body. The practical construction of the courts in 
 New England has been that in an action by or against a municipal 
 corporation, every member of it is a party to the suit, and upon that 
 ground the practice there held has been maintained. Chase v. Merri- 
 mack Bank, 19 Pick. (Mass.) 564; Beardsley v. Smith, 16 Conn. 
 368.^^ 
 
 V, R^ymM/ Lumber Co.. 160 Pa. St_626,:j2_Atl. 537 (1895) ; East Side Bank 
 \. Columbus Tannin n Co., lyoTa ^t i. 32,Atl. 539 (1895) ; Arnold \. IVeimer, 
 40 Nebr. 216, 58 N. W. 709 (1894) ; lones v. Bank, 10 Colo. 464, 17 Pac. 272 
 (1887) ; Poor V. Chapin, 97 Maine 295, 54 Atl. 753 (1903). 
 
 ^"Russell V. The Men Dwelling in the County of Devon, 2 T. R. 667 
 (1788); Cozsi'lcy V. Newmarket Local Board, L. R. (1892) App. Cas. 345; 
 Maguire v. Liverpool, L. R. (1905), i K. B. 767; IVeightman v. Washington, 
 I Black (U. S.) 39, 17 L. ed. 52 (1861) ; Brabham v. Hinds, 54 Miss. 363, 28 
 Am. Rep. 352 (1877) ; Kincaid v. Hardin Co., S3 Iowa 430, 5 N. W. 589, 36 
 Am. Rep. 236 (1S80). 
 
 ""By usage, peculiar to the New England States, the property of an 
 inhabitant may be taken on execution upon a judgment against a town. 
 Brewer v. New Gloucester, 14 Mass. 216 (1817) ; Fernald v. Lewis, 6 Maine 
 264 (1830); Gaskill V. Dudley, 47 Mass. 546 (6 Mete), 39 Am. Dec. 750 
 
 43 — Civ. Prgc.
 
 f)74 EXECUTION 
 
 In Rcrs v. City of jratcrtozcn, 19 Wall. (U. S.) 107, this prac- 
 tice was pronounced to be indefensible, and contrary to tbe funda- 
 mental principle embodied in the Constitution of the United States, 
 that no man shall be deprived of his property without due process 
 of law. In suits against municipal corporations the individual citizen 
 is not a party to the proccctling, he is not served with process and 
 has no opportunity of being heard in his defense. 
 
 It seems to be clear, also, that a fieri facias against the public 
 property of a municipal corporation is unknown to the common law. 
 The reason why, in the absence of express legislative sanction, tliese 
 political divisions of tlie state can not be subjected to such process, 
 is obvious. Municipal corporations are erected for political pur- 
 poses only, and are mere instrumentalities through which the legis- 
 lature administers the civil policy of the state. The legislature 
 delegates to them such measures of political power as may be 
 deemed essential for the efficient administration of their local affairs 
 and for tlie government of the people within the corporate limits. 
 Their control of property is intended only for corporate purposes, 
 and is to be applied only to promote the objects for which they are 
 erected into governments. The taxing power ordinarily furnishes 
 the only means they possess for raising the revenue essential to 
 defray their expenses. 
 
 The municipality can not, in the absence of express legislation, 
 be deprived of the means indispensable to the exercise of the func- 
 tions with which it is charged. Otherwise a judgment creditor, by 
 force of an execution, could destroy the corporate powers by with- 
 drawing the resources, without which they can not be exercised. 
 It would be manifestly contrary to the theory upon which a part of 
 the sovereignty of the state is delegated to local governments to 
 concede to an individual the right thus to arrest their operations. 
 The unrestricted right in the creditor to pursue the corporation by 
 execution could, for all practical purposes, as effectually annul a 
 city charter as its absolute repeal. M onagha n_}L_ Qity of Phila delphia, 
 28 Pa. St. 207 ; S chaffer v. Ca d wallader. ;^6 Pa. St 126; ChJcaoo v. 
 Hasley, 25 111. 595 ; j3ill. on Mun. Corp., sections 446-686; Common- 
 wealt hy^ P £rkinSj 4.^ Pa. St. 400; Frank v. Chosen Freeholders of 
 FI lid son, 10 Vroom (N. J.) 347. 
 
 In a recent decision by the Supreme Court of the United States, 
 Meriwether v. Garret, 102 U. S. 472, the immunity from execution 
 
 (1843) ; Beardsley v. Smith, 16 Conn. 368, 41 Am. Dec. 148 (1844) ; Union v. 
 Craziford, 19 Conn. 331 (1848) ; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 
 332 (1877), where it is said "payment of such a judgment has never been 
 compelled by mandamus against the corporation, as in other parts of the 
 United States"; Eames v. Savage, 77 Maine 212, 52 Am. Rep. 751 (1885); 
 Bloovtfield V. Charter Oak Bank, 121 U. S. 121, 30 L. ed. 923 (1887). But 
 the general rule is that, in the absence of a statute, the private property of an 
 individual within the limits of a municipality can only be subjected to the 
 debts of the municipality by taxation. McriwctJier v. Garrett, 102 U. S. 472, 
 26 L. ed. 197 (1880) ; Emcrick v. Gilinan, ID Cal. 404, 70 Am. Dec. 742 C1858) ; 
 North Lebanon \ Arnold. a7 Pa. St. 488 ("1864) ; Miller V. McWilliams, 50 
 Ala. 427, 20 Am. Rep. 297 (1874) ; I-Hh v. Taylor, 88 N. Car. 489 (1883).
 
 LYON V. CITY OF ELIZABETH 675 
 
 of property held by a city for public uses was very broadly recog- 
 nized. In Emeric v. Gilman, lo Cal. 404, Justitce Field says : 
 
 "Whoever becomes a creditor of a county must look to its 
 revenues alone for payment. The statute authorizes a suit against 
 the county by which the demand may pass into judgment, but it has 
 given no remedy by execution, and when the judgment is rendered 
 the plaintiff must resort to mandamus." 
 
 Mr. Freeman, in his work on Executions, section 22, takes the 
 same view : "A judgment against a county or municipal corporation 
 is ordinarily no more than the mere establishment of a valid claim, 
 for which it is the duty of the proper officers to provide means of 
 payment out of the revenues of the defendant. It is error to award 
 or issue execution on such judgment." 
 
 There are cases which hold that a political corporation is im- 
 pressed with a dual character, the one public, the other private. In 
 the exercise of their powers, governmental and public, they are 
 clothed with the immunities of sovereignty. When they step outside 
 of the domain where they are engaged strictly in the exercise of 
 sovereign powers, and make contracts in their private capacity, they 
 incur the responsibilities of individuals or private corporations. 
 Lloyd V. New York, 1 Seld. (N. Y.) 369; Clarke v. Rochester, 24 
 Barb. (N. Y.) 466, 482. Assuming that when they make an agree- 
 ment in their private capacity, the law will afford every remedy 
 incident to the enforcement of ordinary contracts, property acquired 
 for, and employed in tlie discharge of their sovereign functions, 
 could not be diverted to the satisfaction of obligations resting upon 
 them in their character of private corporations. Logically, property 
 held in their private capacity, could alone be appropriated to the 
 liquidation of such private claims, by process of execution. 
 
 But it is insisted that by force of the first section of the act 
 concerning judgments (Rev., p. 520), all lands are liable to be levied 
 on and sold by execution, whether the property of individuals or 
 municipal corporations. 
 
 By the common law, execution went against lands or tenements 
 of the defendant at the suit of the king only. The plaintiff could 
 have satisfaction only of goods, chattels and the present profits of 
 lands by fieri facias or levari facias, but not the possession of the 
 lands themselves, in consequence of the feudal principles which 
 prohibited alienation and the encumbering of the fief with the debts 
 of the owner. In England the sale of lands by execution is the 
 creature of statutory regulation since the restrictions upon alienation 
 began to wear avv^ay. 
 
 The act to subject lands in this state to sale by execution was 
 passed February 16, 1799 (Pat. L. 368), and was intended to bring 
 within the reacli of creditors, then entitled to make their money by 
 execution, the landed property of their debtors. There is nothing 
 in the act which expressly, or by necessary intendment, brings the 
 public property of municipal corporations within its operation. 
 Under it creditors had no more right to sell lands devoted to the 
 public uses of the corporation than they had, prior to its passage,
 
 676 EXECUTION 
 
 ti) sell furniture necessary in the use of its pul)lic offices. It would 
 be a startlint:^ proposition to hold that a creditor could seize and 
 sell a court house or a jail, and that the sheriff could be required 
 to put him in possession of il. To ^'we the act so wide a ranj:^e 
 would be a constant menace to the life of the body corporate, and 
 so clearly contrary to public ]>(jlicy, that it can not be conceived that 
 it was intended to be so ai^plied. 
 
 In Monaghan v. Plnladt'lpJiia, 28 Pa, St^-.2IQ, the court said, 
 "it was very clear that none of the property necessary for govern- 
 mental purposes could be seized and sold, even if the usual process 
 for collecting a judgment could issue against such corporation." 
 It will be impossible for these political bodies to dispense the impor- 
 tant functions of government committed to them, if they are, to the 
 same extent as individuals, subject to the ordinary process of levy 
 and sale by execution. 
 
 The practice in this state has uniformly been to issue execution 
 against the municipal body, not to seize and sell its public property, 
 but for the purpose of laying a foundation for mandamus proceed- 
 ings. In aid of the judgment creditor legislation has been deemed 
 necessary. Rev., p. 391, S. 9, repealed by Act of March 14, 1879 
 (Pamph. L., p. 293) ; Act of March 27, 1878 (Pamph. L., p. 182). 
 An implication may arise from the language of these acts that a 
 public corporation may possess property which shall be subject to 
 seizure under a fieri facias, but there is nothing in their terms which 
 presumably enables a creditor to deprive it of such property as is 
 essential to the beneficial exercise of its granted powers. These 
 statutory provisions should be strictly construed to prevent the 
 mischief which would flow from the practice sought to be enforced 
 in this case. 
 
 All the real estate levied on in this case is exempt from sale. 
 Two lots were conveyed to and are held by the city for school- 
 house purposes. The house on one lot is, under the term.s of the 
 charter, to be sold and the proceeds appropriated to paying the dam- 
 ages on the street. It can not, at the will of the creditor be diverted 
 from the use for which the law has marked it. The remaining lots 
 v\ere purchased by the city for unpaid taxes, and are held as a 
 means of enabling it to raise the necessary revenues for current 
 expenses. The lands are held for public uses, for out of them the 
 city must realize the funds essential to the discharge of its obliga- 
 tions. A sale by execution would surely result in a ruinous sacrifice 
 of the property, and would defeat the collection of taxes, without 
 paying the city debt. Nothing could be more hurtful to the city than 
 such an interference with the collection of its revenues. 
 
 What relief the court will give the judgment creditor on man- 
 damus proceedings can not now be considered. 
 
 The levy must be set aside.*^ 
 
 "In some states the strictly private property of a m.iinicipal corporation 
 charged with no public trusts may be taken in execution. Birmingham v. 
 Rv.mscy & Co., 63 Ala. 352 (1879) ; Hart v. New Orleans, 12 Fed. 292 (1882) ; 
 Murf^hree V. Mobile, 108 Ala. 663, 18 So. 740 (1895) ; School Dist. of ft. 
 Smith V. Board of Imp., 65 Ark. 343, 46 S. W. 418 (1898) ; Dunham v. Angus,
 
 JONES V. JONES 6/7 
 
 JONES V. JONES 
 
 High Court of Chancery of Maryland, 1827 
 
 I Bland. (Md.) 443'* 
 
 Bland, Ch. : It was a well settled principle of the common law 
 of England, that the real estate of a debtor could not be taken in 
 execution at the suit of a citizen creditor, and sold for the satisfac- 
 tion of the debt. This rule was considered as a fair and necessary 
 result from the nature of the feudal tenures, according to which 
 all the lands of tliat country were held. And, as the most liberal 
 species of those tenures was expressly declared to be that by which 
 all the lands of Maryland should be held, it followed that real 
 estate could be no further subject to be taken in execution here than 
 the same kind of estate was liable in England. 
 
 In the case of the king, however, an execution always issued 
 against the lands as well as the goods of a public debtor; because 
 the debtor was considered as being not only bound in person, but 
 as a feudatory who held mediately or immediately from the king; 
 and therefore, holding what he had from the king, he was from 
 thence to satisfy what he owed to the king. As a consequence of 
 this liability and for tlie public benefit, if a judgment was obtained 
 against a public debtor by the king, he thereby acquired a lien upon 
 the real estate of such debtor, which took effect not merely from 
 the date of tlie judgment, but by relation from the commencement 
 of the suit to the exclusion of all subsequent incumbrances. In 
 
 145 Cal. 165, 78 Pac. 557 (1904). Elsewhere it is held that the proper remedy 
 of the creditor is by mandamus to compel paj'm.ent or the collection of a tax 
 for that purpose. Emcric V. Gilman, ID Cal. 404, 70 Am. Dec. 7J.2 (1858); 
 Cn m'innmii/'nl.fh V. Perkins, 4.'^ Pa. S t^ 400jfi862) ; Morrison v. Hinkson, 87 
 ITr~587, 29 Am. Rep. 77 (1877); Uarling v. Baliimorc, 51 I^id. I (1S78) ; 
 Emery V. Bnrrcsen, 14 Utah 328, 47 Pac. 91, 2>7 L. R. A. 7z^, 60 Am. St. 898 
 (1896). The decisions are influenced by local statutes. But the authorities 
 are in accord that property of a municipality owned or used for public pur- 
 poses is not subject to sale on execution. Ill Dillon Municip. Corp. (5th ed.), 
 § 992; Davenport v. Peoria Marine & Fire Ins. Co., 17 Iowa 276 (1864); 
 Darlington v. New York, 31 N. Y. 164, 28 How. Pr. (N. Y.) 352, 88 Am. Dec. 
 248 (1865); Brinckcrhoff V. Board of Education, 6 Abb. Pr. (N. S.) 428, 
 2 Daly 443, 2>7 How. Pr. (N. Y.) 499 (1869) ; Ransom v. Boat, 29 Iowa 68, 
 4 Am. Rep. 195 (1870) ; Klein v. Nezv Orleans, 99 U. S. 149, 25 L. ed. 430 
 (1878) ; New Orleans v. Morris, 105 U. S. 600, 26 L. ed. 1184 (1881) ; Low 
 V. Howard County, 94 Ind. 553 (1883); The Protector, 20 Fed. 207 (1884), 
 police boat; Ellis v. Pratt City, lii Ala. 629, 20 So. 649, 33 L. R. A. 264, 56 
 Am. St. 76 (1895), proceeds of policy of insurance on public hall and market 
 house; Board of Directors v. Bodkin, 108 Tenn. 700 (1902), money in bank 
 to meet interest on levee bonds ; Kerr v. New Orleans, 126 Fed. 920, 61 C. C. 
 A. 450 (1903) ; Equitable Loan &c. Co. V. Edwardsville, 143 Ala. 1S2, 38 So. 
 1016, III Am. St. 34 (1904), stock of liquors in town dispensary; People 
 ex rel. Post v. San Joaquin Valley Agricultural Assn., 151 Cal. 797, 91 Pac. 
 740 (1907) ; School Town of Windfall v. Somerville, 181 Ind. 463, 104 N. E. 
 859 (1914) ; Morpanfon Hardware Co. v. Morganton Graded Schools, 151 
 N. Car. 507, 66 S. E. 583 (1Q09). Compare Clarissy v. Metropolitan Fire Dept., 
 7 Abb. Pr. (N. S.) 352, 31 N. Y. Super. Ct. 224 (1869). 
 
 "An extract only from the opinion of the chancellor is printed.
 
 ()-S EXECUTION 
 
 F.nplnnd the king's debt is preferred in execution and in tlic admin- 
 istration of a deceased's estate, to that of a citizen ; which right of 
 preference was in Maryland extended to the lord proprietary. 
 After our revolution it was held to have devolved, according to the 
 principles of the common law, upon the state; and it has been ex- 
 pressly declared, that all lands and tenements belonging to any pub- 
 lic debtor, after the commencement of suit against him, shall be 
 liable to execution in whatever hands or possession they may be 
 found.*'^ By Avhich legislative enactment the state's lien, as in Eng- 
 land, relates not merely to the date of the judgment, but to the* 
 commencement of the action. Whence it follows, tliat the liability 
 of the real estate of a debtor to the state to be taken in execution, 
 and the lien of the state incident to such liability, are founded upon 
 the common law and the acts of assembly passed in express relation 
 to debts due to the state. 
 
 But the general rule of the common law in regard to the liability 
 of real estate to be taken in execution as between party and party, 
 was modified by a statute passed in the year 1285,** which made 
 such estates liable to be partially taken in execution. This statute, 
 w^hich gave the writ of elegit enlarged the remedy of the creditor 
 by declaring, tliat, w-hen a debt was recovered or damages adjudged, 
 it should be in the election of the plaintiff to have a fieri facias, or to 
 have all the debtor's chattels and the one-half of his lands delivered 
 to him until the debt was levied to a reasonable extent ; which gave 
 the election immediately that the debt was recovered ; and therefore 
 the whole land was held to be bound from the day of the rendition 
 of the judgment; and those concerned, it was presumed, might 
 easily ascertain from the record by what judgments the lands of the 
 debtor were thus bound. But as some inconvenience arose, because, 
 according to the common law, judgments took effect by relation from 
 the first day of the term, it was in the year 1677 declared by the 
 statute of frauds,^^ that the day on wdiich judgments were rendered 
 should be entered upon the record; and that purchasers should be 
 charged from such time only, and not from the first day of the term 
 whereof the judgment was entered. This then was the nature and 
 extent of the judicial lien, as between party and party, wath which 
 the real estate of a debtor might become bound in Maryland as well 
 as in England. And this judicial lien was afterward mainly fortified 
 and enlarged by a statute passed in the year 1732,*^ applicable only 
 
 "Contra: Evans v. Walsh, 41 N. J. L. 281, 32 Am. Rep. 201 (1879). 
 
 **Statute of Westminster II (13 Edw. I), ch. 18, I Stat, of Realm 81. 
 "When debt is recovered or knowledged in the King's Court, or damages 
 awarded, it shall be from henceforth in the election of him that sucth for 
 such debt or damages, to have a writ of fieri facias unto the sheriff for to 
 levy the debt of the lands and goods ; or that the sheriff shall deliver to him 
 all the chattels of the debtor, saving only his oxen and beasts of his plow, 
 and tlie one half of his land, until the debt be levied upon a reasonable price 
 or extent : And if he be put out of that tenement, he shall recover by a 
 writ of novel disseisin, and after by writ of redisseisin, if need be." 
 
 *^29 Car. II, ch. 3, §§ 14 and 15. 
 
 *'Gco. II, ch. 7. For a further account of the act of 1732 see Coombs 
 V. Jordan, 3 Bland (Md.) 284, 22 Am. Dec. 236 (1831), at p. 304. In Massa- 
 chusetts as early as 1696 and in Pennsylvani a as ear ly as 1700 lands were, by
 
 DALZELL V. LYNCH 679 
 
 to the then colonies of Great Britain, and received as law in Mary- 
 land, which subjected the whole of a debtor's real estate to be taken 
 in execution and sold for the payment of his debts. 
 
 DALZELL V. LYNCH 
 
 Supre me Cou rt of Pennsylvania, 1842 
 4 Watts and Scrg. (Pa.) 255 
 
 Error to the District Court of Allegheny County. 
 
 This was an action of ejectment by Francis Lynch against 
 William Dalzell, in which the plaintiff, inter alia, gave in evidence 
 the record of a judgment against William Dalzell, a fieri facias 
 issued upon it and a levy upon the house and lot in controversy, de- 
 scribing it as being "a leasehold property, with some nine or ten 
 years to run." The property was sold by the sheriff upon the fieri 
 facias, and he made a deed to the plaintiff for it, which was regu- 
 larly acknowledged in open court.^'' Upon the trial of the cause the 
 
 colonial statutes, rendered liable to sale on execution for debts. Lav/s of 
 Massachusetts (1742) p. 75; Presbyterian Corpo ration )L.JVallace, j_Ra^e 
 (Pa.) 100 (1831), at p. 141. By torce ot tlie express statutory provisions and 
 codes of the different states the interest of a debtor in real estate may be sold 
 on execution. For. a summary of the practice, which varies greatly in the 
 several jurisdictions, see 4 Kent's Commentaries 430, where it is said, "The 
 general regulation, and one prevalent in most of the states is to require the 
 creditor to resort, in the first instance, to the personal estate, as the proper 
 and primary fund, and to look only to the real estate after the personal estate 
 shall have been exhausted and found insufficient." But contra Isham v. 
 Downer, 8 Conn. 282 (1830) ; Pitts v. Magie, 24 111. 610 (i860). In Massa- 
 chusetts executions may be levied on lands and chattels contemporaneously. 
 Hoar v. Tilden, 178 Mass. 157, 59 N. E. 641 (1901) ; Rev. Laws Mass. (1902), 
 ch. 178, vol. 2, p. 1603. And see further New York Code Civ. Pro., § 1430 
 ct scq., Ohio Gen. Code (1910), 2495, § 11655; Penna. act of June 16, 1S36, 
 P. L. 755, § 43 et seq., 2 P. & L. Dig. (2d ed.) 3453^ ■ 
 
 In England under the writ of elegit given by the statute of Westminster 
 II the money due the creditor could be made by delivering to him all the 
 chattels of the debtor and one half of the land. This was extended by the 
 Judgments Act of 1838 (i and 2 Vict., ch. no), § 11 to the whole of the 
 debtor's land and restricted by the Bankruptcy Act of 1883 (46 and 47 Vict., 
 ch. 52), § 146 so as to exclude "goods." By the rules of the Supreme Court, 
 Order XLIII, rule I, writs of elegit are to be executed as heretofore. Under 
 the Judgments Act of 1864 (27 and 28 Vict. ch. 112), § 4, where land has 
 actually been delivered to the creditor under the writ of elegit he may apply, 
 by originating summons, to the Chancery Division for an order for the sale 
 of his debtor's interest in the land, the practice upon application to follov/ 
 that of the court of chancery with respect to sales of the real estate of 
 decedents for the payment of debts. Rules of Supreme Court, Order LV, 
 rule 9b ; In re Duke of Neivcastle, L. R. 8 Eq. 700 ( 1869) ; In re Bithray, 
 59 L. J. Ch. 66 (1889) ; In re Harrison and Bottomley, L. R. (1899) i Ch. 
 Div. 465. 
 
 " Sowers V. Vie.iA Pa ^ St. 99 (1850) ; IVilliams v. Downing, t8 Pa. St-6i 
 (1851), hold that on a sberift's sale of a term a deed is unnecessary. In 
 England the sheriff assigns the judgment debtor's term in writing under his 
 official seal. Doe ex dem. .James v. Brazen, 5 B. & Aid. 243 (1821); Doe ex 
 dem. Hughes v. Jones, 9 M. & W. 372 (1842) ; Play fair v. Musgrove, 14 M. & 
 W. 239 (1845) ; Coleman v. Razvlinson, i F. & F. 330 (1858).
 
 68o EXECUTION 
 
 l>laiiitilT ofTcrcd this deed in evidence; it was olijected to by the 
 ilcfendant on the ground that there was no inciuisition upon or con- 
 demnation of the property. The same question was raised in a point 
 put to the court by the defendants. 
 
 ludge Shaler overruled the objection to the evidence, and after 
 a careful examination of the subject and the peculiar phraseology 
 of our acts of assembly on the subject of taking lands in execution, 
 ruled the point against the defendant. Verdict and judgment accord- 
 ingly.'*^ 
 
 Per Curiam : It is said by Lord Coke, in his annotations on the 
 British statute, that a term for years has been extended by force 
 of the words medietatem terrae suae ; but he has not said that such 
 was the practice in his day, and indeed it would have been strange 
 had a term been treated as land for the purposes of an elegit, and 
 as a chattel for the purposes of a common-law extent, or of a fieri 
 facias.*" A lessee for years is not seised, nor is he a terre-tenant; 
 and the land of which he is barely possessed, can not be called his 
 in the technical, more than it can in the popular sense. But whatever 
 may have been the practice under the British statute, it is certain that 
 none such as that supposed to have been intimated by Lord Coke 
 has prevailed under our own; and a practical interpretation for more 
 than a century would alone be decisive of the question. But it is evi- 
 dent that any other than the one we have adopted, would have been 
 inconsistent with the design of the legislature. A term for years is a 
 chattel which might always be sold on a common-lav/ execution ; and 
 our statute, which is an enabling and not a disabling one, was in- 
 tended to subject land to sale for payment of debts in the aspect in 
 v.-hich it had before been exempted. It left the writ of fieri facias, 
 as to chattels, exactly where it found it. There was no motive to 
 burden a leasehold interest, which is usually of little value beyond 
 the rent reserved, with the costs of an inquisition ; and that estates 
 of freehold were subjected to execution only sub modo, arose from 
 a lingering regard for feudal prejudices. There is reason to think 
 that the penmen of our early statutes, who seem to have been bred 
 to the law and more familiar with black-letter than the lawyers of 
 our day, were peculiarly heedful of accuracy in the use of technical 
 words ; and it is said in the Touchstone, page 92, on the authority of 
 Brooke, Done 41, that leases for years do not pass by a general grant 
 of lands, though it seems they may be comprehended with the assist- 
 ance of special description, or by force of the context. There is no 
 reason to think the legislature meant to give that word a more 
 
 **The arguments of counsel are omitted. 
 
 "But see Palmer's Case, 4 Coke 74, Cro, Eliz. 584 (i597) ; Fleetwood's 
 Case, 8 Coke 340 (1610) ; Coniyn v. Bradlyn, Moore 873 (1614) ; Richardson 
 V. Webb, I Morrell's Bankruptcy Cases 40 (1884); Johns v. Pink, L. R. 
 ( 1900) I Ch. Div. 296, from which it appears that in England the judgment 
 creditor may proceed by fieri facias and sale of the term, or, by elegit and 
 either take the term at an annual valuation as lands extended, or take the 
 term as a chattel at a valuation or have it sold to a third person at such valua-
 
 NICHOLS V. GUTHRIE 68l 
 
 extended meaning; and the admission of the sheriff's deed, as well 
 as the direction consequent on it, was entirely proper. ^° 
 Judgment affirmed. 
 
 NICHOLS V. GUTHRIE 
 
 Supreme Court of Tennessee, 1902 
 109 Tenn. 535 
 
 Appeal from the Chancery Court of Maury county. 
 
 This case involves a controversy, growing out of the third clause 
 of the will of Thomas Walker, made in 1852, which is as follows : 
 "To my granddaughter, Elizabeth Sims, I give the tract of land on 
 which she now resides, containing about one hundred acres, also 
 another tract of about the same size adjoining William McLane 
 
 ^"A term of years is a chattel real and liable to execution as personalty. 
 King v. Deane, 2 Shower 85 (1658) ; Taylor v. Cole, 3 T. R. 292 (1789); 
 Sparrow v. Earl of Bristol, i Marsh. (Ky.) 10 (1813) ; Doe ex dem. West- 
 moreland V. Smith, I M. & Ry. 137 (1827) ; Rojian v. King, L. R. (1S94) 2 
 Ir. R. 6^8; Chapman v. Gray, 15 Mass 439 (1819) ; Adams V. French, 2 N. H. 
 3S7 (1821) ; Coombs V. Jordan, 3 Blr.nd (Md.) 284, 22 Am. Dec. 236 (1831) ; 
 Thomas v. Blackemore, 5 Yerg. (Tenn.) 113 (1833) ; Barr v. Dee ex dem. 
 Binford, 6 Blackf. (Ind.) 335, 38 Am. Dec. 146 (1842) ; Shelton v. Codman, 
 S7 Mass. 318 (1849); V/illia_msj v. Dozening , iS JPa. St. 60 (18^1) : Doe ex 
 dem. Uriah Glenn v. Peters, 44 N. Car. 457, 59 Am. Dec. 563 (1853) ; Bigelow 
 V. Finch, 17 Barb. (N. Y.) 394 (1S53) ; Buhl v. Kenyan, 11 Mich. 249, 83 Am. 
 Dec. 738 (18&3); TJiusv Ule Novelty Iron Works' ApHcd, 77 Pa. St. 10 3 
 (1874), levy out of view^ifficient ; Bismark Building Assn. v. Bolster, 92_P a. 
 St. 123 (1S79) ; Kile V. Giebncr. 114^ Fa. St. -^8"i77~ A.tl. i;a fiS^^'o): /j^rew\. 
 Rinehart, 3 P a . CoTT t. ^o (1887) ; McCrecry v. Bcrncy Nat. Bank, iTFAla. 
 224, 22 So. 577, 67 AmT^St. 105 (1S96) ; Smith v. Scanlon, ic6 Ky. 572, 51 
 S. W. 152, 21 Ky. L. 169 (1899) ', Acklin v. Waltermler, 19 Ohio C. Ct. 372 
 (1899) ; Le fever v. Armstrong, \^ Pa. Super. Ct. ,^6.^ (looi) ; Gcllaglicr v. 
 Hicks, 2ib Fa. St. 24^. 6; AtT 623 ( 1907) : Pozvcll v. Nichols. 2b Ukla. 734, 
 no Pac. 762 (1910). Contra: Miin v. Carrington, 2 Root (Conn.) 15 (1793); 
 Hyatt v. Vincennes N. B. (Ind.), 113 U. S. 408, 5 Sup. Ct. 573, 28 L" ed. 1009 
 (1884) ; Loring v. Melendy, II Ohio 355 (1842), permanent lease. Also contra 
 under statutes forbidding assignment of terms without the landlord's con- 
 sent, Holliday v. Achle, 99 Mo. 273, 12 S. \V. 797 (1SS9) ; Moser v. Tucker, 
 87 Tex. 94, 26 S. W. 1044 (1894) ; Boone v. First Nat. Bank, 17 Tex. Civ. 
 App. 36s, 43 S. W. 594 (1897) ; Mexican Nat. Coal, Timber & Iron Co. v. 
 Frank, 154 Fed. 217 (1907), although the general rule is that a clause for- 
 bidding assignments does not apply to executions. Doe ex dem. Mitchinson 
 V. Carter, 8 T. R. 57 (1798) ; Jackson ex dem. Schuyler v. Corliss, 7 Johns. 
 (N. Y.) 531 (1811) ; Jackson ex dem.. Stevens v. Silvernc.il, 15 Johns. (M. Y.) 
 278 (1818) ; Smith v. Putnam, 3 Pick. (Mass.) 221 (1825) ; Riggs v. Piirsell, 
 66 N. Y. 193 (1876) ; Farnuin v. Hefner, 79 Cal. 575, 21 Pac. 955, 12 Am. St. 
 174 (1889) ; Medina Temple Co. v. Currey, 58 111. App. 433 (1895) ; in re 
 Bush, 126 Fed. 878 (1904) ; Powell v. Nicholls, 26 Okla. 734, no Pac. 762 
 (1910). 
 
 A tenant at will lias not such an interest in the land as can be sold en 
 execution. Waggoner v. Speck, 3 Ohio 293 (1827) ; Bigelow v. Finch, 11 Barb. 
 CN. Y.) 498 (1851), 17 Barb. (N. Y.) 394 (1853). Contra : Gerhrr v Nnrf-rcia . 
 iiVJ^'N. Ca s. (Pa.) I97 , (1881). By § 1430 of R. V. Code Civ. Pro. the 
 expression "real property/' as used in reference to executions, includes lease- 
 hold property where the lessee is possessed of five years unexpired term. 
 United States O. Co. v. Btige, 136 N. Y. S. 297 (1912).
 
 682 EXECUTION 
 
 ♦ * * to have and to hold said property during her natural life, 
 to be free from the debts, liabilities or contracts of her present 
 
 * * * husband, and at her ileath all of said property is to be 
 equally divided among the children of said Elizabeth then living, or 
 tlic descendants of such children." 
 
 During the existence of the life tenancy of Elizabeth Sims, a 
 judgment creditor of Walter Sims, who was a son of the life tenant, 
 caused to be levied an execution upon his interest in the land, and, 
 at the sale made under and by virtue of this levy, became the 
 purchaser, and took from the sheriff a deed to the same. Whatever 
 interest, if any, he acquired thereunder, was subsequently passed 
 to one Hoge, who is defendant to this cause. After the levy, but 
 before the sheriff's sale thereunder, W^alter Sims aliened and con- 
 veyed all his interest in the same land to his sister, and she subse- 
 quently conveyed the same interest to one Nichols, who is one of the 
 complainants in this cause. The life tenant died after these various 
 transactions, and the present bill was filed for a partition, or a sale 
 for partition, of this land. The only controversy in the case arises 
 witli regard to the Walter Sims interest. 
 
 The complainant Nichols insists that the levy and sale were 
 ineffectual to vest any title or interest in the defendant Hoge, be- 
 cause of the fact that, at the date of such levy and sale, the interest 
 of Walter Sims was a mere possibility or expectancy not subject 
 to execution. His further insistence is that this expectancy, or 
 possibility, could be alieniated, and, as an alienee, he was substituted 
 to all tlie right and interest of Walter. The converse of these propo- 
 sitions is maintained by the execution purchaser, Hoge.^^ 
 
 Beard, C. J. : The present certainly falls within the class of cases 
 where the event on which the contingency depends is certain, while 
 the person to take on the happening of the event is uncertain. For 
 which one, if any, of the children of Elizabeth Sims would survive 
 her, and then be capable of taking the remainder, was uncertain 
 until her death occurred, and whatever interest either of these chil- 
 dren had in the remainder was a pure expectancy. 
 
 It would seem, on principle, that such an interest or expectancy, 
 not transmissible at common law, was beyond the reach of an execu- 
 tion creditor. Whether a contingent remainder of any kind can be 
 subjected by a judgment creditor, may be regarded as an open 
 question in this state, though in Henderson v. Hill, 9 Lea (Tenn.) 
 34, in the form of dictum, it is said : "The weight of authority seems 
 to be that a legal contingent remainder is not subject to execution." 
 Citing Freeman on Execution, section 175. 
 
 Upon examination of the cases, we think it will be found that 
 this statement, though a dictum, is correct. At least, such was the 
 holding in Watson v. Dodd, 68 N. Car. 528; Howard v. Peavey, 128 
 111. 430; Diicker V. Burnham, 146 111. 9; Roundtree v. Roundtree, 
 26 S. Car. 450; Young v. Young, 89 Va. 675 ; Jackson v. Middleton, 
 52 Barb. (X. Y.) 9. 
 
 "The statement of facts is from the opinion of the court, part of which 
 is omitted.
 
 NICHOLS V. GUTHRIE 683 
 
 Moore V. Llttel, 41 N. Y. 66, and Woodgate v. Fleet, 44 N. Y. 
 9, are cited as contra, but the first of tliese cases simply held that 
 an interest, vested or conting;ent, is alienable during the continuance 
 of the antecedent estate, while in the second the argument of the 
 court Vv"as mainly devoted to the determination of the question 
 whether the remainder involved was contingent or vested. 
 
 But it is said that the effect of section 63 of Shannon's Code, 
 which provides that the words "real estate," "real property," "lands," 
 include lands, tenements and hereditaments, and all rights thereto, 
 and interests therein, equitable as well as legal, is to change the rule, 
 and make an interest purely contingent as tlie one in question, sub- 
 ject to the claim of an execution creditor. We are referred to the 
 case of White v. McPheeters, 75 Mo. 286, where, in construing a 
 statute similar to ours, this view is expressed. 
 
 But if we are right in our holding that, during the life tenancy, 
 the rem.ainder in the property in question vested in the class as a 
 unit, and not severally in the members of that class, then there is 
 no room for the application of this statute, as in such case no mem- 
 ber of the class has an interest v/hich can fairly be called legal or 
 equitable. On the other hand if tlie other view obtains, that this 
 was a mere possibility made, by reason of the contingency as to the 
 person, the same results follow. 
 
 It results, therefore, that the execution purchaser, Hoge, took 
 nothing by his purchase, while complainant Nichols, as alienee, if 
 upon no other ground, upon that of estoppel, did acquire the inter- 
 est of Walter Sims when it fell in upon the death of the life tenant. 
 
 Affirmed.s2 
 
 ^^An estate in reversion is subject to execution. Williams v. Amory, 14 
 Mass. 20 (1817) ; Burton v. Smith, 13. Pet. (U. S.) 464, 10 L. ed. 248 (1839) ; 
 Den ex dem. Miirrell V. Roberts, 11 Ired. L. 22 N. Car. 424, 53 Am. Dec. 419 
 (1850) ; Bangor v. Warren, 34 Maine 324, 56 Am. Dec. 657 (1851) ; Bean v. 
 Kiilp, 7 Phila^PajL650_li87o) ; Woodgate v. Fleet, 44 N. Y. i, 11 Abb. Pr. 
 (NT'S:)' 4TT1 870) ; AtwaieFv. Manchester Sav. Bank, 45 Minn. 341, 48 N. W. 
 187, 12 L. R. A. 741 (1891). So, also, a vested remainder. Roe v. H umphreys, 
 
 2 Yeates (Pa.) ^27. 2 Dall. 22^ (i795) ; Den ex dem. Rickey v. HUTman, 
 7 N. J. L. 180 (1824) ; Brown V. Gale, 5 N. H. 416 (1831) ; Kelly v. Morgan, 
 
 3 Yerg. (Tenn.) 437 (1832); Wiley v. Bridgman, 1 Head. (Tenn.) 63 
 (1858); Bonham V. Bishop, 23 S. Car. 96 (18.S4) ; Railshack v. Lovejov, 116 
 111. 442, 6 N. E. 504 (1886) ; Shipp v. Gibbs, 88 Ga. 184, 14 S. E. 196 (£891) •, 
 Stevens v. Mulligan, 167 Mass. 84, 44 N. E. 1086 (1896) ; Deadman v. Yantis, 
 230 111. 243, 82 N. E. 592, 120 Am. St. 291 (1907) ; Dnnkerson v. Goldberg, 162 
 Fed. 120 (1908); Shirran v. Dallas, 21 Cal. App. 405, 132 Pac. 454 (1913). 
 As in the principal case, it has been frequently held that a contingent re- 
 mainder is not subject to execution. Baker v. Copenbargcr, 15 111. 103, 58 Am. 
 Dec. 600 (1853) ; Pcnn v. Spencer, 17 Grat. ("Va.) 85, 91 Am. Dec. 375 (1866) ; 
 Jackson v. Middleton, 52 Barb. (N. Y.) 9 (1866) ; Watson v. Dodd, 68 N. Car. 
 528 (1873); Dodge v. Beattie, 61 N. H. loi (1881) ; Harvard v. Peavey, 128 
 111. 430, 21 N. E. 503, 15 Am. St. 120 (1889) ; Young v. Young, 89 Va. 675, 17 
 S. E. 470, 23 L. R. A. 642 (1893) ; Smith v. Gilbert, 71 Conn. 149, 41 Atl. 284, 
 71 Am. St. 163 (1898) ; Taylor v. Taylor, 118 Iowa 407, 92 N. W. 71 (1902). 
 But contra: Cohalan v. Parker, 138 App. Div. 849, 123 N. Y. S. 343 (1910) ; 
 White V. McPheeters, 75 Mo. 286 (1882) ; Peoples Trust Co. of Madison, Ind. 
 V. Dewees, 143 Ky. 730, 137 S. W. 201 (1911) ; De Haas v. Bunn. 2 Pa. St. 
 335. 44 Am. Dec. 201 (1845) ; Drake v. Brown, 68 Pa. bt. 223 ( l^yiV: Robbins'
 
 584 EXECUTION 
 
 HUMn-IRl'-Y T'. GERARD 
 Supreme Court of Errors of Connecticut, 191 i 
 
 S3 Conn. 346 
 
 Action to quiet and settle the title to real estate, and for other 
 equitable relief, brougjht to and reserved by the Superior Court in 
 New Haven County, Williams, J., upon an agreed statement of facts, 
 for the advice of this court upon questions stipulated by counsel 
 pursuant to sections 70-71 of the rules of this court. ^^ 
 
 Prentice, J. : The plaintiffs claim that Mrs. Beecher ^vas en- 
 titled to compensation from the other owners of the reversionary 
 interest in the property, by reason of the improvements which, dur- 
 ing the continuance of her life estate, she made upon it in the belief 
 that upon her death it would pass to her heirs ; and that the plaintiffs, 
 by virtue of the foreclosure of their lien, are entitled to receive out 
 of the proceeds of a sale, if ordered as prayed for, the amount of 
 such compensation. They contend that they are in a position to be 
 
 Estate, 199 Pa. 5 00,^ 49 Atl. 233 (looi) ; Kenvon v . Davis. 219 Pa. 585 , 69 Atl. 
 62 (1908) ; compare Pattciyoii v^^qldzceU,_i24j^a^St^^ Atl. 18, 10 Am. 
 
 St. 598 (1889). See also Moore w717ittel, 41 N. Y. 66 (1869) ; Sheridan v. 
 House, 43* N. Y. (4 Keyes) 569, 4 Abb. Dec. 218 (1868) ; Packer's E state 
 (Nr>?j_j ^l6 Pa. T1 6. QZJS.t\. 70 (iQ U) • 
 
 rn PInllips v. Rogers^ S3 M:iss. 405 (1847), it was held that an estate 
 defeasible upon the debtor's dying without issue living at the time of his 
 decease could be taken in execution and held until the happening of the 
 contingency. And see Kendall v. Laurence, 22 Pick. (Mass.) 540 (1839) ; 
 I-Iarvey v. West, 87 Ga. 553, 13 S. E. 693 (1891) ; McClure v. Cook, 39 W. Va. 
 579, 20 S. E. 612 (1894) ; Bayer v. Walsh , i66_ Pa St 38, 30 A tl. 1039 (1895). 
 In Harbcr & Brother v. Nash, 126 Ga. tttTsS ^- -t^- 92S (1906), land was 
 devised to three daughters of testator with a provision tliat so soon as one of 
 said daughters should "leave the land either by marriage, death or otherwise" 
 she should have no further interest therein. Held, that a daughter had not 
 such an interest as was subject to execution. 
 
 As to ground rents compare Hurst v. Liihjjrozv , 2 Yeate s (Pa.) 24, i 
 Am. Dec. 326 (1795), with Payn v. Beat, 4 Den? ( JN . Y . ) 405 ( 1847 ) . 
 
 "Only so much of the case as relates to executions is printed. The 
 facts were, briefly, that ^Mrs. Maltby died in 1871 and by her will devised 
 one fourth of he'r real estate in trust for her niece Mrs. Beecher for life 
 and after her death to her "lawful heirs." On the distribution of Mrs. 
 Maltby's estate the premises in dispute were set out to the trustee for Mrs. 
 Beecher v/ho was given a lease of the property. It was then supposed that 
 the remainder in fee was vested in Mrs. Beecher's son, G. L. Gerard, and 
 Mrs. Beecher at her own expense erected a valuable brick building upon the 
 land. In 1901 Mary E. Ives (now Humphrey) and others filed judgment 
 Hens against Mrs. Beecher's interest in the property which were foreclosed 
 and the judgment creditors ptit in possession. G. L. Gerard then brougl.t 
 proceedings to determine his interest in the property in which it was held 
 that he took no interest under Mrs. Maltby's v.ill, and that the remainder, 
 subject to Mrs. Beecher's life estate, was in the intestate estate of I^Irs. 
 Maltbv. Mrs. Beecher having died, the judgment plaintiffs and heirs of Mrs. 
 Maltby ask for an adjudication upon their respective interests. See Ives v. 
 Beecher, 75 Conn. 153, 52 Atl. 746 (1903) ; /wj v. Beecher, 75 Conn. 564, 54 
 Atl. 207 (1903) ; Gerard v. Ives, 78 Conn. 485, 62 Atl. 607 (1906) ; Gerard v. 
 Beecher, 80 Conn. 363, 68 Atl. 43S (1908).
 
 HUMPHREY V. GERARD 685 
 
 substituted for her in the enforcement of any claim of this character 
 which could be enforced in her interest. This contention involves 
 the maintenance of two independent propositions, to Avit: (i) that 
 the circumstances attending the making of the improvements by 
 Mrs. Beecher were such as to justify the assertion of a claim in 
 equity for compensation for them, and (2) that the plaintiffs by 
 their foreclosure have come into the rights in that regard which 
 otherwise would be enjoyed by her estate. 
 
 We have no need to enter upon an examination of the question 
 as to what the rights of Mrs. Beecher's estate, arising out of the 
 circumstances under which the improvements were made by her, 
 or the conduct of the parties interested in the estate, or both together, 
 might, in the absence of the foreclosure, be. It is sufficient for the 
 negation of the plaintiff's contention that they have not succeeded 
 in appropriating to themselves any claim of that character and in 
 coming into a position to enforce such a claim. It is the policy 
 of our law that all the property of a debtor should be responsible 
 for his debts, and in consonance with this policy we have held 
 that our statutes regulating attachments and executions svibject 
 to these processes certain equitable interests in property. The in- 
 terests which have been thus brought within the reach of execu- 
 tion have included the equitable title which a cestui que trust 
 has in lands or property, the legal title of which is held by another 
 under a trust for his benefit, the equity of redemption in prop- 
 erty subject to a mortgage,^* the equity in shares of stock pledged 
 as collateral for a loan, and the income of a trust fund which 
 the cestui que trust is entitled to receive as of right. Punderson 
 V. Brown, i Day (Conn.) 93, 96; Davenport v. Lac on, ly Conn. 
 278, 281; Middletown Sav. Bank. v. Jarvis, 33 Conn. 372, 379; 
 Ives V. Beecher, 75 Conn. 564, 568 ; Loonier v. Loonier, 76 Conn. 
 522, 528. These equitable interests are of a very different character. 
 
 "At common law an equity of redemption was not liable to sale on 
 execution against the mortgagor. Pliinket v. Pcnson, 2 Atk. 293 (1742); 
 Kelly v. Btirnham,g N. H. 20 (1837) ; Van Ness v. Hyatt, 13 Pet. (U. S.) 294, 
 10 L. ed. 168 (1839) ; Woodside v. Adams, 40 N. J. L. 417 (1878) ; Cochrane 
 V. Rich, 142 Mass. 15, 6 N. E. 781 (1886). But in the majority of states, by 
 statutes or otherwise, the interest of the mortgagor may be taken under an 
 execution against him. Jackson ex dcm. Tonslcy v. Rhodes, 8 Cow. (N. Y.) 
 47 (1827) ; Garro y. Thompson, _Z_Watts (Pa.) 416 (1838) ; Doughten v. Gray, 
 10 N. J. Eq.~323 (1855) ; Curdv^ WunSterTTXJYno^t. 92 (1855) ; Taylor y. 
 Corneli u s, 60 Pa ,_St ^87 (1869) ; Durfce v. Grinncll, 69 111. 371 (1S73)'; 
 Irimm'v. MarsliTsA^- ^- 599, I3 Am. Rep. 623 (1874) ; Walters V. Dcfcn- 
 baugh, 90 111. 241 (1878) ; Loomis v. Lezvis, 140 Alass. 208, 5 N. E. 488 (1885) ; 
 Bodwcll v. Lane, 83 Maine 168, 21 Atl. 829 (1891) ; Second Nat. Bank v. 
 Gilbert, 174 111. 485, 51 N. E. 584, 66 Am. St. 306 (1898) ; Due v. Bankhardt, 
 151 Ky. 624, 152 S. W. 786 (1913). The great weight of authority is to the 
 effect that the interest of a mortgagee in real property before foreclosure is 
 not subject to sale on execution against him. Jackson ex dem. Norton v. 
 Willard, 4 Johns. (N. Y.) 41 (1809)"; Eaton v. Whiting, 20 Mass. 484 (1826) ; 
 Rickert v. Madeira I Rawle (Pa.) -^ 2^ (1829) ; Cooch v. Gerry, 3 Harr. 
 (Del.) 281 (1840) ; Brown v. Bates, 55 Maine 520, 92 Am. Dec. 613 (1868) ; 
 Morris v. Barker, 82 Ala. 272, 2 So. 335 (1886). As to chattels see Ferguson 
 V. Lee, 9 Wend. (N. Y.) 258 (1832) ; Chapman v. Hunt, 13 N. J. Eq. 370 
 (1861); Prout V. Root, lit Mass. 410.
 
 586 rxECUTioN 
 
 however, from that which it is sought 1o here appropriate. It is 
 doubtless true, in a sense, that an equitable ripjht to have compensa- 
 tion for betterments is one which charj^es the land with a lien which 
 courts of equity will upon proper occasion recognize, and by appro- 
 priate processes enforce. This charge, however, does not in strict- 
 ness constitute a lien on the estate. Gr'isivold v. Bragg, 48 Conn. 577, 
 581; I Story's Equity Jurisp. (12th cd.) S. 655; Freeman on Co- 
 tenancy & Partition (2d ed.), section 510. But not all interests in 
 property can be appropriated by a levy of execution upon the 
 property. That of a mortgagee can not. Huntington v. Smith, 4 
 Conn. 235, 237 ; McKelvey v. Creevey, ^2 Conn. 464, 467 ; Pettus v. 
 Gault, 81 Conn. 415, 419. In like manner an interest which is so 
 indeterminate, uncertain, or contingent that it is incapable of being 
 appraised or sold with fairness to both the debtor and creditor, 
 may not be thus levied upon. In Sm'itli v. Gilbert, 71 Conn. 149, 154, 
 this matter was fully discussed and passed upon, and we held that 
 while an interest which was not strictly goods or lands might be 
 taken, it was only when tliat interest was property capable of ascer- 
 tainment, definition and valuation, that such was the case. The 
 situation here is one w^hich clearly brings any uncertain, undeter- 
 m.ined equity which Mrs. Beecher may have had for compensation 
 for her improvements, within these qualifying principles, and makes 
 it certain that it was not open to a levy of execution upon the realty 
 or interest therein, to satisfy the judgment of these plaintiffs.^'^ That 
 
 •"At common law an equitable estate in real or personal property could 
 not be sold under a fieri facias. Hence the creditor was obliged to po into 
 equity to subject such interest to the payment of the judgment. Lystcr v. 
 Dolland, I Ves. Jr. 431 (1792) ; Scott v. S'cliotcy, 8 East 466 (1807) ; Metcalf 
 V. ScJiotcy, 2 B. & P. N. R. 461 (1S07) ; Wilson v. Beard, 19 Ala. 629 (1851) ; 
 Smith v. McCann, 24 How. (U. S.) 398, 16 L. ed. 714 (i860); Ncwson v. 
 Kurtz, 86 Ky. 277, 5 S. W. 575, 9 Ky. L. 587 (1S87) ; Potter v. Couch, 141 
 U. S. 296, 35 L. ed. 721, II Sup. Ct. 1005 (i8qo) ; Bates v. Lcdgerzvood M. Co., 
 130 N. Y. 200, 29 N. E. 102 (i8qi) ; Tyrrell v. Painton, L. R. (1895) i_ Q. B. 
 202; Tischler v. Robinson, 56 Fla. 699, 48 So. 45, (1908) ; Hunter v. Citizens' 
 S. & T. Co., 157 Iowa 168, 138 N. W. 475 (1912) ; Smith v. Collins, 81 N. J. 
 Eq. 348, 86 Atl. 957 (1913). By section 10 of the Statute of Frauds (29 Car. 
 n, ch. 3) the interest of a cestui que trust in lands, tenements and heredita- 
 ments was made liable to execution. The tendency of the decisions was to 
 restrict the operation of the statute to the estates therein clearly designated. 
 King V. Ballett, 2 Vem. 248 (1691); Harris v. PiigJi, 4 Bing. 335 (1827), 
 such as a mere dry trust ; Doe ex dem. Hull v. Greenhill, 4 B. & Aid. 684, 690 
 (1821) ; Stevens v. Hince, no L. T. 935 (1914). The statute did not extend to 
 the provinces and in some of the states was not adopted. Russell v. Lewis, 
 2 Pick. (Alass.) 508 (1824). In other states the rule was established without 
 statute that the equitable as well as the legal estate of the debtor might be 
 taken in execution. Flannagin v. Dazvs, 2 Houst. (Del.) 476 (1862) ; Atwalcr 
 V. Manchester Sav. Bank, 45 Minn. 341, 48 N. W. 187, 12 L. R. A. 741 (1891) ; 
 Ai r^ rrler y. MgfJrof^ 9 Sp- g. & R- (PaJ 397 (1823) ; RickerLJL Madcim, 
 _r|^^rrwlp £Pfj7l 3^S |t82q). In the last case it is said, in the opinion of the 
 court : "In consequence of the want of a court of chancery, our law differs 
 from the law of England, for in England a judgment only binds a legal 
 interest; in Pennsylvan ia, a legal and an equitable interest. In England, the 
 relief is in chancery ; but here, we enforce payment by the common-law 
 process of execution; and, hence, under the construction of the Act._of J295f 
 for taking lands in execution for payment of debts, an equitable as well as a 
 legal title to land, has been considered as subject to the lien of a judgment.
 
 ROGERS V. KEN NAY 687 
 
 which can not be taken upon execution can not be reached by a 
 judgment lien. General Statutes, section 4151 5 ^"^^^ v. Beecher, 75 
 Conn. 564, 567. The superior court is advised that the plaintiffs are 
 not entitled to compensation out of the proceeds of any sale of the 
 property in question, which may be ordered, by reason of any im- 
 provements Mrs. Beecher may have made thereon. 
 
 ROGERS V. KENNAY 
 
 Court of Queen's Bench, 1846 
 
 11 Jur. 14" 
 
 Issue under the Interpleader Act, tried before Coleridge, J., at 
 the summer assizes at Chelmsford, in 1845, in the common form, to 
 try whether certain goods, seized by the sheriff of Essex in an 
 execution at the suit of the defendant, against one William Rowe, 
 were, at the time of such seizure, the property of the plaintiff, 
 Rogers, or not. On the trial, it appeared that Rowe, who was a 
 builder, being indebted to Rogers, had deposited goods with him, 
 under the following memorandum : 
 
 "Mr. Thomas Rogers. Sir, — In consideration of your having 
 given cash for several bills of exchange, bearing my signature, and 
 drawn by you upon my responsibility and recommendation, I here- 
 with deposit about 500 slates; between thirty and forty slate chim- 
 ney jambs, complete, and ready for fixing up; twenty sink stones; 
 a quantity of stone paving; twelve large stone logs for laying down 
 to given purposes; a quantity of Bath stone coping, and several 
 
 The extent of the decisions in Pennsylvania is to subject to execution all 
 possible contingent titles in land, accompanied with an estate, property, or 
 real interest in the land, whether that interest be legal or equitable." 
 
 The tendency of modem legislation is to subject equitable estates to 
 levy and sale on execution but the statutes and the decisions interpreting 
 them differ in the several jurisdictions. See Davenport v. Lacon, 17 Conn. 
 278 (1845) ; Kennedy v. Niinan, 52 Cal. 326 (1877) ; New York Code Civ. Pro., 
 § 1431 ; Laclede Bank v. Keeler, 103 111. 425 (1882) ; Poole v. French, yi Kans. 
 391, 80 Pac. 997 (1905) ; Raymond v. Blancgrass, 36 Mont. 449, 93 Pac. 648 
 (1908) ; Chamblee v. Atlanta Brewing &c. Co., 131 Ga. 554, 62 S. E. 1032 
 (1908); Robertson v. Howard, 82 Kans. 588, 109 Pac. 696 (1910); Peoples 
 Trust Co. V. Dewcese, 143 Ky. 730, 137 S. W. 201 (loii). Compare Gorham 
 V. Wing, 10 Mich. 486 (1862) '; Starr v. United Slates, 8 App. D. C. 552 (1896) ; 
 Hogan v. Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644 (1868) ; Linn v. Davis, 
 58 N. J. L. 29, 32 Atl. 129 (1895) ; First Nat. Bank of Cortland v. Logite, 89 
 Ohio St. 288, 106 N. E. 21, L. R. A. 1915 B, 340 n (1914). In Williams v. Baker, 
 62 N. J. Eq. 563, 51 Atl. 201 (1902), it is held that N. J. Comp. Stats. (1910), 
 p. 4675, § 7, providing that on sale on execution of any interest in lands, the 
 purchaser shall take such estate and interest as the debtor had, refers only to 
 legal estates, and does not subject an equitable estate to execution and sale. 
 See further Freeman on Executions (3d ed.), § 18S; 17 Cyc. 957; 11 A. & E. 
 Encj'C. of Law (2d ed.) 632. As to trust estates, see Ames' Cases on Trusts. 
 p. 433 et scq. ; Demuth v. Kemp, 130 N. Y. App. Div. 546, 115 N. Y. S. 28 
 (1909). 
 
 ^S. c. 9 Ad. & El. N. S. 592, 15 L. J. N. S. (Q. B.) 381.
 
 6SS EXECUTION 
 
 stoiic ?tcps and stone sla])s; fourlocn wheelbarrows, and fifty-six 
 deal planks ; and the whole of these things arc now upon your land 
 at Maryland Point, Stratford, ICsscx, as collateral security for any 
 sum of money now due or owing, or which may become due here- 
 after or owing, by virtue of any bill of exchange, I O U's or in any 
 other way whatsoever or howsoever; and I further authorize you, 
 in default or nonpayment on my part, to sell, by private or public 
 sale, the whole of the foregoing articles named, and account to nie 
 (in account of debit and credit for the same), showing how the 
 account may then stand between us. 
 
 "William Rowe." 
 
 Rowe removed some of the materials from time to time, and 
 deposited others in lieu of them. On the tenth of IMarch the sheriff 
 seized the goods in execution upon the i)laintiff's premises. The 
 jury found a verdict for the plaintiff, on the question whether the 
 memorandum \vas given bona fide, or was a colorable contrivance 
 to protect the goods against an execution; but the learned judge 
 directed a verdict to be entered for the defendant according to his 
 construction of the memorandum, reserving leave to move to enter 
 a verdict for the plaintiff. In the following, Michaelmas Term, a 
 rule nisi accordingly was obtained, against which Pearson showed 
 cause. First, some of tlie goods seized were not the same as had 
 been deposited with Rogers under the memorandum ; and the plain- 
 tiff is entitled to a verdict for them. The memorandum could not 
 give tlie transferee a property in goods not upon the plaintiff's 
 premises at the time of the assignment. Topfield v. Hilhnan, 6 ^Man. 
 & G. 245 ; Gale v. Burnell, 10 Jur. 198. [Patteson, J. : The memo- 
 randum does not seem to point to any future acquired property.] 
 Secondly, a pledge or mortgage of goods and chattels does not 
 confer a property in them to the pawnee or mortgagee. In detinue, 
 the declaration in which states that the plaintiff was possessed, as of 
 his own property, a lien must be pleaded specially ; Mason v. Farnell, 
 12 M. & W. 674, overruling Lane v. Tewson, in note to White v. 
 Teal, 12 Ad. & El. 116; 4 Per. & D. 43 ; 5 Jur. 1037; Whitehead v. 
 Harrison, 6 Q. B. 423; 8 Jur. 894; Barnezvall v. Williams, 7 Man. 
 & G. 403 ; so also in trover, which involves the right of property 
 and right of possession. IJlnte v. Teal, 12 Ad. & El. 113, 4 Jur. 890. 
 The sheriff might have sold the goods subject to the Hen of the plain- 
 tiff. "Goods pawned may be taken on an execution against the 
 pawner, upon satisfaction of the pledge." TIdd. Pr. 1003, (9th ed.). 
 
 Montagu Chambers, contra : Part of the goods were deposited 
 under the memorandum, and other part at different times, giving 
 the plaintiff a Hen upon them. As to the first, the plaintiff holds 
 them as a pledge, with a power to sell. The sheriff has no right to 
 seize goods held in right of a Hen upon them. Legg v. Evans, 6 
 M. & W. 36. As to the question what is meant by the issue of 
 property or no property, a lien confers a special property which 
 entitles the party to detain the goods as against a stranger until his 
 claim is satisfied. In trover, a plea of no property in the plaintiff 
 means no property as against the defendant. Nichols V. Bastard,
 
 ROGERS V. KEN NAY 689 
 
 2 Cr. M. & R. 659. [Patteson, J.: In Richards v. Symons, 10 
 Jtir. 6, a right of lien, conferred upon the defendant by the plaintiff, 
 supported a plea in trespass, that the chattel was not the property of 
 the plaintiff.] When the judge directed this issue, he meant to intro- 
 duce tlie question as to special as well as general property. 
 
 Lord Den man, C. J. : If a debtor has pawned his goods the 
 sheriff can do no more than sell the duplicates ; they are all the 
 interest of the execution debtor in the goods; he can not get the 
 goods without paying the money for Vv'hich they are pledged. Legg 
 V. Evans, 6 M. &: W. 36, is a case directly in point, and it was much 
 considered. 
 
 Patteson, J. : The case of Legg v. Evans is directly in point, 
 because the action in that case was brought against the sheriff who 
 had seized the goods in question, of which the plaintiff in trover 
 stated that he v/as lawfully possessed as of his own property. If in 
 this case any goods were taken which were not in the possession of 
 the plaintiff, that would make a difference ; no question of lien would 
 then arise. 
 
 Williams, J., concurred. Rule absolute.^'' 
 
 '"Chattels pledged are not, at common law, liable to seizure and sale on 
 execution against the pledgor, at least until paj^ment of the debt or other 
 extinguishment of the pledgee's title. Badlam v. Tucker, i Pick. (Mass.) 389, 
 II Am. Dec. 202 (1823); Jacobs v. Latour, 5 Bing. 130 (1828); Moore v. 
 Hitchcock, 4 Wend. (N. Y.) 292 (1830) ; Wheeler v. McFarland, 10 Wend. 
 (N. Y.) 318 (1S33) ; Sexton v. Monks, 16 Mo. 156 (1852) ; Danforth v. Denny, 
 25 N. H. 155 (1852); Mozvcr v. Stickney, 5 Minn. 307 (Gil. 321) (1861); 
 Reeves v. Serhen, 16 Iowa 234, 85 Am. Dec. 513 (1864) ; First Nat. Bank v. 
 Pettit, 9 Heisk. (Tenn.) 447 (1872) ; Smith v. Jennings, 74 Ga. 551 (1885) ; 
 Neill V. Rogers, 41 W. Va. 37, 23 S. E. 702 (1895) ; McClxntock v. Central 
 Bank, 120 Mo. 127, 24 S. W. 1052 (1893) ; First Nat. Bank v. Harkness, 
 42 W. Va. 156, 24 S. E. 548, 32 L. R. A. 408 (1S96) ; Rice v. Gilbert, 72 111. 
 App. 649 (1897) ; Sailier Banking Co. V. Hartwig, 23 Misc. 89, 51 N. Y. S. 
 677 (1898) ; McClung v. Colwcll, 107 Tenn. 592, 64 S. W. 890, 89 Am. St. 961 
 (1901). In many states, usually by statute, the interest of a pledgor may be 
 sold subject to the pledgee's interest. Pomeroy v. Smith, 17 Pick. (Mass.) 
 85 (1835); McConeghy v. McCaw, 31 Ala. 447 (1858); Mechanics Bldg. & 
 Loan Assn. v. Conover, 14 N. J. Eq. 219 (1862) ; Hass v. Prescott, 38 Wis. 
 146 (1875) ; Horner v. Dennis, 34 La. Ann. 389 (1882) ; Fox v. Cronan, 47 
 N. J. L. 493, 2 Atl. 444, 4 Atl. 314, 54 Am. Rep. 190 (1885) ; Lewis v. Dillard, 
 76 Fed. 688 (1896) ; People's Nat. Bank v. IVheedon, 115 Ga. 782, 42 S. E. 91 
 (1902) ; Miliken Commission Co. v. Albers Commission Co., (Mo.) 147 
 S. W. 1065 (1912). By § 1412 N. Y. Code Civ. Pro. the interest of the debtor 
 in property pledged may be sold "in the hands of the pledgee" by virtue of an 
 execution against property. Under the earlier cases the sheriff took possession. 
 Bakewell & Cole v. Ellsworth, 6 Hill (N. Y.) 484 (1844) ; Sticf v. Hart, i 
 N. Y. 20, 4 How. Pr. (N. Y.) 223 (1847). ItLPennsylyaiiiaiJiLdeLthe^ct of 
 June 16. 1836. P. L. 775, § 23, 2 P. & L. Dig. (2d'"edy3388, the sheriff may 
 sell the debtor's interest without disturbing the pledgee's possession. Srodes 
 V. Cavr n^ 3 Watts_(Pa.'> 258 (1834) ; B mgh v. Kirk Patrick, 54 Pa. Str '84r9!3 
 Am. Dec. 675 ^1867); F reeman y. SvPnons, 7 Phila. (t^.) 30 7 (1869); 
 Reichenbach v. McKean, q^ Pa. Si. 432 (1880); IVaverl y Coal &c. Co. v. 
 
 WcKenna n. no P^a . St. '^9971 Atl. P43 (185O. 
 
 rrTias^ been held that the interest of the pledgee in the goods may be 
 sold on execution against him. Saul v. Krugcr, 9 How. Pr. (N. Y.) 569 
 (1854) ; Jn re Rollason, L. R. 34 Ch. Div. 495 (1887). Contr?i: d o ody ear v . 
 Donnelly , i^ W. N. C. (Pa.) 314 (1883), and see Mores v. Co'nMm, Owen 
 123 Ci6oqT. ' 
 
 44 — Civ. Proc.
 
 690 EXECUTION 
 
 DAVIS 1: r.ARNARD 
 
 Supreme Court of Nr.w Hampshire, 1881 
 60 A^ H. 550 
 
 Bill in equity to remove a cloud from the plaintiff's title to 
 certain real estate. Facts agreed. The plaintiff and one John K. 
 Davis v.-ere tenants in common of certain lands in Northfield; and 
 tlie defendant, havinj^ a judgment against John K. Davis, levied 
 tlie execution issued thereon upon the premises as if John K. Davis 
 were sole tenant. The plaintiff claims that the levy is void, and that 
 it creates a cloud on her title.'^^ 
 
 Smith, J. : One tenant can not convey a part of the land held 
 in common with another, by metes and bounds, to a stranger. If 
 he could, his grantee would become tenant in common of a partic- 
 ular part with the other tenant, v/ho, in making a legal partition, 
 might, notwithstanding the conveyance, have the whole of the part 
 tlius conveyed assigned as his property. Porter v. Hill, 9 Mass, 34. 
 For tlie same reason an execution against one holding land as a 
 tenant In common can not be extended on a part of the land so 
 holden by metes and bounds. French v. Lnnd, i N. H. 42 ; Thomp- 
 son V. Barber, 12 N. H. 563; Smith v. Knight, 20 N. H. 9; Hall v. 
 Young, 37 N. H. 134; Carter v. Beals, 44 N. FI. 413.^^ 
 
 The defendant levied his execution upon the whole estate, one 
 moiety of which belonged to the plaintiff and the other to the judg- 
 ment debtor. According to all the authorities, the levy was good 
 against John K. Davis; and although the return shows that the 
 v.-hole tract was levied upon. In fact his moiety and that alone 
 passed to the creditor by virtue of the levy. The levy did not 
 affect the plaintiff's title to the other half of the premises. She was 
 not a party to the levy, and is not bound by anything that was done 
 affecting her Interest. She remains seized of an undivided half, and 
 tlie defendant became seized of the other half as tenant In common 
 with her. Upon petition by either for partition, there will be noth- 
 ing In the levy to prevent judgment that partition be made. The 
 defendant claims to hold only the moiety that belonged to John K. 
 Davis, and makes no claim to the moiety belonging to the plaintiff. 
 As the levy can have no effect upon the plaintiff's rights, when par- 
 tition is made It must be made regardless of the levy. The plaintiff 
 is entitled to a decree that the defendant release to her one undivided 
 half of the whole tract. 
 
 Case discharged.^" 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted. 
 
 "Accord: Varmint V. Abbot, 12 Mass. 474, 7 Am. Dec. 87 (1815) ; Bald- 
 win V. Whiting, 13 Mass. 57 (1816). Contra: Trecn v. Emerick, 6 Ohio St. 
 
 391 (1834)- 
 
 "The interest of one of tv/o or more joint tenants or tenants in common 
 of land is suhject to levy and sale upon execution ap^ainst such tenant. 
 Starr v. Leavitt, 2 Conn. 243, 7 Am. Dec. 268 (1817) ; Bavia^ton^v. Clarke,
 
 RAINS V. m'nAIRY 69I 
 
 RAINS V. McNAIRY 
 
 Supreme Court of Tennessee, 1843 
 
 4 Humph. (Tenn.) 356 
 
 John McNairy and Francis McNairy were the joint owners of 
 a Jackass. A judgment was obtained in the Circuit Court of David- 
 son County by Stout against John McNairy, and a fieri facias was 
 issued thereupon, and levied on the animal, by Rains, sheriff of 
 
 2^en;^&W\(Pa.) 115, 21 Am. Dec. 432 (1830) ; Galusha v. Sinclear, 3 Vt. 
 394 (i«3i); McCormick y. ^ Jfai^ey, gWans_ (PaJ 482 (1840); Jones v. 
 Lewis, 30 N. CarTCS IreJ.) 70, 47 Am. Dec.'338 (1847) ; Argyle V. Dwinel, 29 
 Maine 29 (1848) ; Smith v. Knight, 20 N. H. 9 (1849) ; Arnold V. Cess na, 2^ 
 Pa. St. 34 (1855) ; Baker v. Shepherd. 27 Ga. 12 (1867) ; TJiompson'v. St'itt, 
 SSrPal^!. 156 (1867) ; Butler v. Roys, 25 Mich. 53, 12 Am. Rep. 218 (1872) ; 
 Smith vTCraw ford, 81 111. 296 (1876); /iycor^ v. Kimbrough, 61 Tex. 543 
 (1884) ; Frederick v. Missouri River &c. R. Co., 82 Mo. 402 (1884) ; Brown 
 V. Renfro, 63 Tex. 600 (1885) ; McClellan v. Solomon, 23 Fla. 437, 2 So. 825, 
 II Am. St. 381 (1887); Stnall's At>t>eal. i M on ag. (Pa.) ,, 664, 15 Atl. 767 
 (1888) ; Ballard v. Scruggs, 90 Tenn. 585, 18 S. W. 259, 25 Am. St. 703 (1891) ; 
 Thornburgv. Wiggins, 135 Ind. 178, 34 N. E. 999, 22 L. R. A. 42, 41 Am. St. 422 
 (1893) ; Midgleyy. Walker, loi Mich. 583, 60 N. W. 296, 45 Am. St. 431 (1894). 
 In the case of estates by entireties the common law rule subjected the 
 property to the husband's debts provided the wife's right of survivorship 
 was not interfered with. Barber v. Harris, 15 Wend. (N. Y.) 615 (1836); 
 Stoeblcr v. /S'wf?rr^_^Watts_JTaJ_j8l__Xi836) ; Washburn & Campbell v. 
 Burns, 34 N. J. L. 18 (1869), Since the married women's property acts have 
 freed the wife's property from liability to the husband's creditors it has been 
 held in one line of cases that during their joint lives the land is free from 
 judgment or execution against either of them. Chandler v. Cheney, 27 Ind. 
 391 (1S71) ; Bruce v. Nicholson, 109 N. Car. 202, 13 S. E. 790, 26 Am. St. 562 
 (1891) ; Naylor v. Minock, 96 Mich. 182, 55 N. W. 664, 35 Am. St. 595 (1893) ; 
 Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. 
 St. 921 (189s); McCubbin v. Stanford, 85 Md. 378, 27 Atl. 214 (1897); 
 Dickey v. Converse, 117 Mich. 449, 76 N. W. 80, 72 Am. St. 568 (1898) ; Ray 
 V. Long, 122 N. Car. 891, 44 S. E. 652 (1903) ; Jordan v. Reynolds, 105 Md. 
 288, 66 Atl. 27, 9 L. R. A. (N. S.) I026n, 121 Am. St. 578, 12 Ann Cas. 51 
 (1907) ; Aliens y. Lyon. 216 P a. 604, 66 Atl. 81. 10 L. R. A. (N. S.) 463n, 116 
 Am. St. TQiTq Ann. Cas. I37 (iQO?); Meyer's Estate, 232 Pa. 89. 81 Atl. 145 
 
 (1911) ; Bci hl V. Martin, 2-^6 Pa. ^IQ , 84n^Arq^T~2:^. R. A. (N. S.) 55Sn 
 
 (1912) ; In re Beihl, 197 Fed. 870 Pa. (i9i2)r"Other cases hold that husband 
 and v/ife may each encumber their tmdivided half of the property during 
 their joint lives subject to their respective rights of survivorship. Buttlar v. 
 Rosenblath, 42 N. J,. Eq. 651, 9 Atl. 69S, 59 Am. Rep. 52 (1887) ; Hiles v. 
 Fisher, 144 N. Y. 306, 39 N. E. 337, 30 L. R. A. 305, 43 Am. St. 762 (1895) ; 
 Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340 (1901). See 9 L. R. A. 
 (N. S.) 1026; 61 U. of Pa. Law Review 476. 
 
 An execution against one of several joint tenants or tenants in com- 
 mon is levied on the debtor's undivided interest and not by taking a part of 
 the tract as the debtor's share. Bartlct v. Harlow, 12 Mass. 348, 7 Am. Dec. 
 76 (1815) ; Smith v. Benson, 9 Vt. 138, 31 Am. Dec. 614 (1837) ; Brown v. 
 Bailey, i Mete. (Mass.) 254 (1840); Staniford v. Fullcrton, 18 Maine 229 
 (1841) ; Campau V. Gogfrey, 18 Mich. 27, 100 Am. Dec. 133 (1869) ; Aycock v. 
 Kimbrough, 61 Tex. 543 (1884). Contra: Treon v. Emerick, 6 Ohio 391 
 O834). In Massachusetts, a levy and sale on execution of land of a tenant 
 in common, operates, after partition, by way of estoppel to transfer title to 
 the purchaser, if the land described is allotted to the debtor. Cressey v. Cres- 
 sey, 215 Mass. 65, 102 N. E. 314 (1913). "The application of this principle," 
 says Rugg, C. J., "results in something like a wager or chance. The grantee 
 gets nothing unless on partition the shares of the grantor should happen to 
 include the parcel described by metes and bounds in the deed."
 
 602 EXFXUTION 
 
 Davidson. F. McXalry attended on the day of the sale and forbade 
 the same, but the sheriff sold the entire interest in the animal and 
 delivered him to the purchaser. 
 
 Francis McXairy instituted thereupon this action of trover in 
 the Circuit Court of Davidson County ai:;^ainst Rains, and a verdict 
 and judi::nicnt were rendered, Mancy, Judc^c, ])rcsiding, in favor 
 of the plaintiff, for the sum of $300, that bcinj^f the estimated value 
 of his interest in the animal. The defendant, ivains, appealcd.*^^ 
 
 Green, J.: Francis H. and John S. IMcNairy were joint owners 
 of a jackass, upon which Rains, the sheriff', levied an execution in 
 his hands against John S. McNairy. F. H. McNairy forbade tlie 
 sale, claiming the ownership of one-half; but the sheriff sold and 
 delivered to the purchaser the whole jack; whereupon this action 
 of trover was brought. The plaintiff recovered for one-half the 
 value of the jack in the circuit court, and Rains, the sheriff, appealed 
 to tliis court. 
 
 It is now insisted that tlie sheriff had a right to take and deliver 
 tlie jack to the purchaser, by virtue of the execution against John 
 S. I\IcNairy; that the purchaser became joint owner of the jack 
 with F. H. IMcNairy, the sale of the entire property having in fact 
 transferred only the one-half ; and as a consequence of tliese propo- 
 sitions, it is contended that there has been no conversion, and that 
 no action lies by one tenant in common against the otlier. 
 
 Each co-tenant having a right to the possession, can not be sued 
 by the other part owner, unless there has been a conversion of the 
 property; and the older elementary books hold, that a sale by one 
 co-tenant of the entire property does not amount to a conversion, 
 but that its destruction would.®^ 
 
 It is argued that as the sale by one tenant in common of his co- 
 tenant's share, passes the interest of the vendor only, the interest of 
 the other co-tenant still remains in common with the purchaser, and 
 therefore there can be no conversion by the act of sale. Bac. Abr. 
 Trover ; Salk. 292 ; i East 367 ; Littleton, section 323. And this doc- 
 trine was maintained in tlie case of Morcereau v. Norton, 15 Johns. 
 (N. Y.) 179, where it was held that a sale was not such a destruction 
 of the property as to destroy the tenancy in common. 
 
 But the more recent American cases hold that as the assumption 
 of authority over, and actual sale of the property by a stranger, will 
 constitute a conversion, so the assuming authority to sell, and act- 
 ually making sale of the interest of another, under a claim of title 
 in the vendor, although he be part owner, may be taken to be a con- 
 version, for which an action of trover will lie. Weld v. Oliver, 21 
 Pick. (Mass.) 559; White v. Osborne, 21 Wend. (N. Y.) 72; Mel- 
 ville V. Brown, 15 Mass. 82; Lucas y. Wasson, 3 Dev. (N. Car.) 398. 
 
 It is true, such sale does not vest in the purchaser any greater 
 interest than that of the party making the sale ; and the co-tenant, 
 who is not consulted, may so consider it, and take the property when 
 opportunity offers; but he may sue in trover for the eonversion, 
 
 **The arguments of counsel are omitted. 
 "Trout V. Kennedy'j 4Z_Pa. 387 (1864).
 
 RAINS V. M'nAIRY 693 
 
 and thereby vest in the purchaser the entire property. 21 Wend. 
 (N. Y.) yj. 
 
 In a late case, Waddell v. Cook, 2 Hill (N. Y.) 47, an action of 
 trespass was sustained against the marshal, Waddell, for seizing 
 and selling goods of Cook under fieri facias against Bowne, who was 
 a joint owner of the goods with Cook. The court held that though 
 the marshal's authority extended to a total dispossession of both 
 the co-tenants by an execution against one, yet the law denied him 
 the right to sell the entire property. In attempting to do so, though 
 the act be nugatory, yet the law may well treat it as such an abuse 
 of legal authority, as renders him a trespasser ab initio. 2 Kent 
 351, note b, 4th ed. 
 
 We therefore think this action was well conceived, and affirm 
 tlie judgment.^^ 
 
 *'The interest of a tenant in common chattels may be taken and sold on 
 execution against him alone. Mersereaii V. Norton, 15 Johns. (N. Y.) 179 
 (1818) ; Pettingill v. Bartlctt, I N. H. 87 (1817) ; Whitney v. Ladd, 10 Vt. 165 
 (1838) ; M'Elderry v. Flannagan, I Har. & G. (Md.) 308 (1827) ; Thompson 
 V. Mazvhinney, 17 Ala. 362, 52 Am. Dec. 176 (1850) ; Hopkins v. Forsyth, 14 
 Pa. .S^ ■i/\. ^7. Am__npc 513 (1850) ; Hay den v. Binney, 73TiIass. (7 GrayT) 
 416 (1856) ; Aweary v. Cahill, 20 III. 214 (1858). The general practice is for 
 the officer to levy upon and take possession of the whole of the common 
 property but to sell only the debtor's interest. Melville v. Brown, 15 Mass. 82 
 (1818) ; Reed v. Howard, 43 I^Iass. (2 Lletc.) 36 (1S40) ; Waddell v. Cook, 
 
 2 Hill (N. Y.) 47, 37 Am. Dec. 372 (1841) ; Ficro v. Bet is, 2 Barb. (N. Y.) 633 
 (1848) ; Ray v. Birdseye, 5 Denio (N. Y.) 619 (1846) ; Caldwell v. A}igcr, 4 
 Minn. (Gil. 156) 217, yy Am. Dec. 515 (i860) ; Vcach v. Adams, 51 Cal. 6og 
 (1877) ; Burton v. Kennedy, 63 Vt. 350, 21 Atl. 529, 25 Am. St. 769 (1891). 
 Henderson V. Brenneckc, 26 App. Div. 309, 49 N. Y. S. (1898) ; 
 Spalding v. Allred, 23 Utah 354, 64 Pac. lioo (1901). Unless naturally sev- 
 erable, Newton v. Hoxve, 29 Wis. 531, 9 Am. Rep. 616 (1S72), see Snyder v. 
 Stehman.io Vz. Super. Ct. 639 (1899) . And in some states statutes forbid 
 the slier iff trom taking a chattel trom a co-owner without his consent, in 
 which case the levy may be made without possession. Vicory v. Straiisbaugli, 
 78 Ky. 425 (1880); Willis v. Loeb, 59 Miss. 169 (1881) ; Richart v. Good- 
 paster, 116 Ky. 637, 76 S. W. 831, 25 Ky. L. 889 (1903) ; Heydon v. Heydon, 
 
 1 Salk. 392 (1693). 
 
 The principles applicable to cotenancies, were in the early cases, applied 
 to partnerships. Bacluirst w. Clinkard, I Show. 169 (1691) ; Chapman v. Koops, 
 
 3 Bos. & P. 289 (1802) ; Johnson v. Evans, y M. & G. 240 (1844) ; Helmore v. 
 Smith, L. R. 35 Ch. Div. 449 (1885), and in America these precedents have 
 been folloAved by courts. Reed v. Shepcrdson, 2 Vt. 120, 19 Am. Dec. 697 
 (1829) ; Phillips v. Cook, 24 Wend. (N. Y.) 3S9 (1840) ; Newhall v. Bucking- 
 ham, 14 111. 405 (1853) ; V/iles V. Maddox, 26 Mo. yy (1857) ; Nixon v. Nash, 
 12 Ohio St. 647, 80 Am. Dec. 390 (1861) ; Robinson v. Tevis, 38 Cal. 6n 
 (1869) ; Smith v. Orser, 42 N. Y. 132 (1870) ; Clements v. Jessup, 36 N. J. Eq. 
 569 (1883) ; Wright v. IVcrd, 65 Cal. 525, 4 Pac. 534 (1S84) ; Fdt v. Cleghorn, 
 
 2 Colo._ App. 4, 29 Pac. 813 (1S92). But the interest acquired by the pur- 
 chaser is no more than the interest of the execution debtor upon a settlement 
 of the partnership's affairs. United States v. Hack, 8 Pet. (U. S.) 271, 8 L ed 
 941 (1834) ; Garbctt v. Veale, 5 Ad. & El. (N. S.) 408 (1843) ; Eighth Nat. 
 Bank V. Fitch, 49 N. Y. 539 (1872) ; Farley, Spiar & Co. v. Moog, 79 Ala. 148 
 58 Am. Rep. 585 (1885) ; Sr^anw Gilbert, 175 III. 204, si N. E. 604, 67 Am. St. 
 208 (1898) ; Weber v. Herts, 188 111. 68, 58 N. E. 676 (1900). Hence it has 
 been held that the partnership goods can not be taken from the firm for the 
 purpose of selling the interest of a member of the firm. Sanborn v. Royce, 
 132 Mass. 594 (1882) ; Russell v. Cole, 167 Mass. 6, 44 N. E. 1057, 57 Am. St. 
 432 (1896); Levy & Sugar v. Cowan, 27 La. Ann. 556 (1875) ; Haynes v. 
 Knowles, 36 Mich. 407 (1877) ; Ernest v. Woodworth, 124 Mich. I, 82 N. W.
 
 694 EXECUTION 
 
 SECTION 3. LIEN OF EXECUTIONS 
 
 DUNCAN V. M'CUMBER 
 Supreme roTTPx m? Pfnnsyj-vanta,^ 1840 
 
 10 Jl'aits (Pa.) 212 
 
 Error to the Common Pleas of Erie County. 
 
 This was an action of trespass de bonis asportatis, brought by- 
 Solomon IM'Cumber, the defendant in error, against James Duncan, 
 plaintiff in error. The goods in question were part of the personal 
 estate of IMoses Fellows at the time of his decease; and as such 
 were thereupon taken into possession by Rebecca Fellows, his ex- 
 ecutrix and widow. Upon a judgment obtained against her, as the 
 executrix of IMoses Fellows, in favor of James Duncan, the plain- 
 tiff in error, in the common pleas of Erie County, a writ of fieri 
 facias was sued out to ]\Iay term, 1839, directed to the sheriff o£ 
 Erie county, and delivered to him to be executed on the twenty- 
 seventh day of Alarch, 1839, in tlie borough of Erie; at which place, 
 it seems, that the sheriff, without going to the residence of Rebecca 
 Fellows about fourteen miles from the borough, where the goods 
 then were, endorsed a seizure of them upon the back of the writ, 
 without seeing them, or having them in his power; and without 
 attempting to take the possession of them, until twenty days or 
 more afterwards, when, in the meanwhile, they had come into the 
 hands and possession of the defendant in error, as a purchaser 
 thereof at constable's sale, made under the following circumstances: 
 On the first of April, 1839, ^^i execution was issued by Thomas 
 Greenwood, a justice of the peace of Erie county, against Rebecca 
 Fellows, in her own right, as it would appear by tlie execution, at 
 the suit of Ezra Thompson, for $70.79, besides costs of suit; also, 
 on the next day, another execution was issued by P. Wells, another 
 justice of the peace of Erie county, against Rebecca Fellows, as 
 executrix of Moses Fellows, deceased, at the suit of Timothy J. 
 Newton, for a debt of $6.20, besides eighty-two cents cost; both 
 of these executions were directed to the constable of Harborcreek 
 
 661 (1900); Morrison v. Blodgctt, 8 N. H. 238, 29 Am. Dec. 653 (1836); 
 Treadivell v. Brown, 43 N. H. 290 (1861) ; Garvin v. Paul, 47 N. H. 158 
 (1866) ; Deal v. Bogne, 20 Pa. St 228, 57 ^"i. Dec. 702 (1853) ; Kcinheimer 
 V. ]j cm ti qi \:a} ] , jT ? "^, ~ST ^^TTT^ho ) : lyurho rrow's Appeal, 84 Pa. St. 404 
 rr^77T;Pa^Art f ^Anril 8. 187^ . P. L. e^^rTTS L. DiR. (2cl ed.) 3572; ITare^ 
 v__r»»im,p 2Pa~?r lAi (1870^) : I<ic]iar£v,.AIlm^J^^X^^^^:^-^^^QS>JJ^ Atl. 552, 
 2 Am. St. 652 (1887) ; WJiite y. ^ech, 171 Pa. St. 82 , 32 Atl. 1130 (1895) ; 
 In re S Packman's App caT Z Aj ^- Super Ct. 221 (1 897) ; Jones v. Lawrence 
 (Tex.) 151 S. W. 584 (19T2). In Lnglafid under the act of 1890 (53 and 54 
 Vict.) ch. 39, § 23, a writ of execution can not issue against partnership 
 property except on a judgment against the firm. But the judgment creditor 
 of a partner may obtain an order charging the partner's interest in the firm 
 and appointing a receiver of his share of the profits. Brown, Janson & Co. 
 V. Hutchinson, L. R. (1895) 2 Q. B. 126.
 
 DUNCAN V. m'CUMBER 695 
 
 township, in Erie county, whose name, as it appears, was G. W. 
 Walker. Having them in his hands on the second day of April, 
 1839; he, by virtue thereof, actually took the goods from the pos- 
 session of Rebecca Fellows where he found them, and in the course 
 of ten or twelve days afterwards, sold them at public auction to 
 the defendant in error, after giving due notice thereof. The goods, 
 upon the defendant in error's paying for them, were accordingly 
 delivered by the constable to him ; from whom the plaintiff in error, 
 in company with the deputy sheriff, afterwards, but before the return 
 day of the fieri facias, took the goods by virtue thereof. 
 
 Upon the trial of the cause below, after the evidence was given 
 to the jury, the counsel of the defendant requested the court to 
 charge the jury, first, tliat the execution in favor of James Duncan 
 and against Rebecca Fellows, executrix of Moses Fellows, deceased, 
 bound the personal property of the deceased, from the delivery of 
 the same to the sheriff. Second, that the levy and sale of the goods 
 by the constable. Walker, upon an execution issued by a justice, and 
 received by the constable after the lien of the fieri facias in the 
 sheriff's hands had attached, did not release the goods from the 
 sheriff's levy and lien; and that notwithstanding the action of tlie 
 constable, the sheriff was justified in taking and selling the goods 
 upon the fieri facias in his hands. Third, that tlie execution in the 
 constable's hands, being against Rebecca Fellows for her individual 
 debt, the constable could not levy upon and sell the goods late of 
 Moses Fellows, deceased, in her possession as executrix, so as to 
 release them from the previous lien of the fieri facias, in favor of 
 James Duncan against Rebecca Fellows, as the executrix of Moses 
 Fellows, deceased. 
 
 The court in their charge to the jury considered the defendant's 
 first proposition to be correct in general; but denied his second, 
 unless the purchaser at the constable's sale had full notice of the 
 sheriff's claim to the goods under the fieri facias, and his indorse- 
 ment thereon of having levied on the same ; whether he had such 
 notice or not, the court left as a question of fact to the jury to be 
 decided by them. The defendant's third proposition the court an- 
 swered in the negative. The counsel of the defendant below ex- 
 cepted to the answers and charge of the court on his second and 
 third proposition; which have been assigned for error. 
 
 Kennedy, J. : At common law, in England, the writ of fieri 
 facias bound the defendant's goods from its teste, so that a sale of 
 the goods made thereafter by the defendant, though bona fide, 
 might have been avoided by a seizure of the goods under the writ 
 at any time before it became returnable. Anonymous, Cro. Eliz. 
 174; Cro. Car. 149, 181, 440; i Mod. 188; Gilb. on Executions, 13, 
 14.®* It was no doubt presumed, when such writ was awarded, that 
 
 "The common-law rule prevails in Tennessee. Coffee v. Wray, 8 Yerg. 
 (Tenn.) 464 (1835); Edwards v. Thompson, 85 Tenn. 720, 4 S. W. 913, 4 
 Am.. St. 807 (1887) ; Cecil v. Carson, 86 Tenn. 139, 5 S. W. 532 (1887), and 
 formerly prevailed in North Carolina; Palmer v. Clarke, 13 N. Car. (2 Dev. 
 L.) 354, 21 Am. Dec. 340 (1830). Cf. Weisenfield v. McLean, 96 N. Car. 248, 
 2 S. E. 56 (1887).
 
 696 EXECUTION 
 
 it would not only be issued, but would be immediately put into the 
 hands of the sheriff, and be by him executed. This, however, was 
 not always the case. On the contrary, the notion of the goods being 
 retrospoclively bound from the teste of the writ, as frequently 
 abused by taking out writs of fieri facias one after the other, without 
 ever delivering them to the sheriff, whereby the goods of the de- 
 dcfendants therein named became bound, \vhich consequently made 
 the sales thereof by the defendants, and all commerce in regard to 
 them, somewhat uncertain. To prevent this, as Chief Baron Gilbert 
 observes, Gilb. on Executions 14, it was enacted, among other 
 things, by the Statute of Frauds, 29 Car. 2, ch. 3, section 16, "that 
 no writ of fieri facias, or other writ of execution, shall bind the prop- 
 erty of the goods, against whom such writ of execution shall be 
 sued forth, but from the time that such writ shall be delivered to 
 the sheriff, under sheriff, or coroners to be executed; and for the 
 better manifestation of the said time, the sheriff, under sheriff, 
 and coroners, their deputies and agents, shall, upon the receipt of 
 any such writ (without fee for doing the same), indorse upon the 
 back tliereof, the day of the month, or year, whereon he or they 
 received the same." i Mod. 188; i Sid. 271.^° But neither before 
 
 ''Repealed by the act of 19 and 20 Vict., ch. 97, § i, but substantially 
 revived by the Sales of Goods Act of 1893 (56 and 57 Vict., ch. 71, § 26) 
 as follows : 
 
 "A writ of fieri facias or other writ of execution against goods shall 
 bind the property in the goods of the execution debtor as from the time 
 when the writ is delivered to the sheriff to be executed; and, for the better 
 manifestation of such time, it shall be the duty of the sheriff, without fee, 
 upon receipt of any such writ to endorse upon the back thereof the hour, 
 day, month and j-ear when he received the same. 
 
 "Provided that no such writ shall prejudice the title to such goods 
 acquired by any person in good faith and for valuable consideration, imless 
 such person had at the time when he acquired his title notice that such writ 
 or any other writ by virtue of which the goods of the execution debtor might 
 be seized or attached had been delivered to and remained unexecuted in the 
 hands of the sheriff." 
 
 See Hutchinson v. Johnston, 1 T. R. 729 (1787) ; Samuel v. Duke, 3 M. & 
 \V. 622 (1838) ; Guest V. Cozvbridge R. Co., L. R. 6 Eq. 619 (1S68) ; McGivcrn 
 v. McCausland, 19 U. C. C. P. 460 (1869) ; Clifford v. Logan, 9 Manitoba 423 
 (1894). Where several writs arc delivered to the sheriff at the same time 
 there is no priority between them. AshzvortJi v. Earl of Uxbridge, 12 L. J. 
 Q. B. 39 (1842). And as to county courts see Murgatroyd v. Wright, L. R. 
 (1907) 2 K. B. 333. 
 
 Section 16 of the statute of frauds was at an early date adopted by 
 many of the states, and, while the modem tendency is toward the abolition 
 of an execution lien before levy, the statute is still substantially in force in 
 about one half of the states. 2 Freeman on Executions (3d ed.) 1017; 
 Haggerty & Nobles v. Wither, 16 Johns. (N. Y.) 287, 8 Am. Dec. 321 (1819) ; 
 Lambert v. Paulding, 18 Johns. (N. Y.) 311 (1830) ; Cowden v. Brad y, 8 Scrg. 
 & R_4Pa.) 505 (1822) ; Shafnc r v. Gjhnorc^j^V^its&^^JF^TTA^X 1842) ; 
 Johnson v. McLane, 7 Blackt. (TncT.') 501, 43 Amr i5ec7~i'o2 (1845) ; James v. 
 Burnet, 20 N. J. L. 63S (i8zi6) ; Ray v. Birdseye, 5 Denio (N. Y.) 619 (1846) ; 
 Taylor v. Horsey, 5 Har. (Del.) 131 (1849); Love v. Williams, 4 Fla. 126 
 (1851); Marshall V. Cunningham, 13 111. 20 (1851); Newcombe v. Leavitt, 
 22 Ala. 631 (1853) ; Gott v. Williams, 29 Mo. 461 (i860); French v. Allen, 
 50 Maine 437 (1862); Whitehead v. Woodruff, 11 Bush (Ky.) 209 (1874); 
 McCrisaken v. Osweiler, 70 Ind. 131 (1880) ; Sawyer v. Bray, 102 N. Car. 79, 
 8 S. E. 885, II Am. St. 713 (1889) ; Hanchett v. Ives, 133 111. 332, 24 N. E. 396
 
 DUNCAN V. m'cUMBER 697 
 
 nor since the passage of this statute, is the property of the goods 
 altered by the mere dehvery of the writ to the sheriff, but continues, 
 notwithstanding, in the defendant, till the execution thereof. The 
 meaning of these words, "that the goods shall be bound from the 
 delivery of the writ to the sheriff," is, that after the writ is so de- 
 livered, if the defendant makes an assignment of his goods, unless 
 in market overt, the sheriff may take them in execution. Lathal v. 
 Tomkins, 2 Eq. Ca. Abr. 381, pi. 14; Smallcomh v. Cross, i Ld. 
 P>.aym. 252; per Holt, C. J. This statute, however, only protects 
 goods in the hands of purchasers or strangers, where the goods are 
 sold bona fide; for if the party die after tlie teste, but before the 
 delivery of the writ to the sheriff, the goods are bound in the hands 
 of his executors or administrators; for this is not a change of 
 property by sale, or for a valuable consideration ; Comb. 145 ; so that 
 in this respect the law is still the same that it was before the statute, 
 which was made for the benefit of strangers, who might have ac- 
 quired a title to the goods between the teste of the writ of execu- 
 tion, and the time of tlie delivery thereof to the sheriff, and not for 
 the benefit of the part}^, or his executors, or administrators. Bac. 
 Abr. tit. Execution, 716, 733; Gilb. on Executions, 15, 16.^^ That 
 the principle of the common law of England in regard to the goods 
 of a defendant, in an execution, being bound thereby from its teste, 
 was introduced into and adopted in Pennsylvania, upon its first 
 settlement as a province, is evidenced very clearly by our act of 
 Assembly, passed for tlie prevention of frauds and perjuries, in 
 
 (1890) •,Inr e_Braden's Estate. 16; P a. St. 184, ^o Atl. 746 (1895) ; Gillig v. 
 George CT'lrealu'cIl Co., 148 N. Y. 177, 42 N. E. 590 (1896) ; Hall v. Nash, 
 58 N. J. Eq. 554, 43 Atl. 683 (1890) ; Boisseau v. Bass, 100 Va. 207, 40 S. E. 647, 
 57 L. R. A. 380, 93 Am. St. 956 (1902) ; Spicks v Prospe rf. Tir C q , ^q Pp 
 SuEei\_Ct3Q9_ti9a2) ; Starhuck v. Gcho, 59 N. Y. Misc. 332, 112 N. Y. S. 312 
 (1908) ; N. Y. Code Civ. Pro., §§ 1363, 1405 ; McAdams v. Mundy, 79 N. J. L. 
 480, 76 Atl. 1031 (1910) ; Rock Island Plow Co. v. Rcardon, 222 U. S. 354, 
 56 L. ed. 231 (1911 111.) ; Schneider v. Schmidt, 82 N. J. Eq. 81, 88 Atl. 179 
 (1913). In some jurisdictions bona fide purchasers without notice of the 
 execution are protected before actual levy. Van Waggoner v. Moses, 26 N. J. 
 L. 570 (1857) ; Evans v. Walsh, 41 N. J. L. 281, 32 Am. Rep. 201 (1879) ; 
 Williams v. Shelly, 37 N. Y. 375 (1867); Osborn v. Alexander, 40 Hun 
 (N. Y.) 323 (1886) ; N. Y. Code Civ. Pro. § 140Q; Hiding, Brockerhoff & Co. 
 V. Cabell, 9 W. Va. 522, 27 Am. Rep. 562 (1876); Trevillian v. Guerrant, 
 31 Grat. (Va.) 525 (1879) ; Wcisenficld V. McLean, 06 N. Car. 248, 2 S. E. 
 56 (18S7). In other jurisdictions actual levy is made the test of priority. 
 Princeton Bank v. Crozer, 22 N. J. L. 383, 53 Am. Dec. 254 (1850), as to bank 
 stock; Merccin V. Burton, 17 Tex. 206 (1856), personal property; Johnson v. 
 Gorham, 6 Cal. 195, 65 Am. Dec. 501 (1856) ; Tidlis v. Brazvley, 3 Minn. 277 
 (1859) ; Knox V. Webster, 18 Wis. 406, 86 Am. Dec. 779 (1864) ; Reeves v. 
 Sebern, 16 Iowa 234, 85 Am. Dec. 513 (1864) ; Baqley v. Ward, 2,7 Cal. 121, 99 
 Am. Dec. 256 (1869); McMahan v. Hall, 36 Tex. 59 (1871) ; Sawyers v. 
 Sawyers, 93 N. Car. 321 (1885). In Ohio there is no preference among 
 executions sued out of the same court apainst the same debtor during the 
 term at which the judgment is rendered or within ten days thereafter. 
 Meier v. Fir.'it Nat. Bank, 55 Ohio St. 446, 45 N. E. 907 (1896). 
 
 "Changed in Pcnna. as to debtor's dying after the teste but before 
 delivery of the writ by the act of _Feb. 24, 1834, P . L. 70, § 33, 2 P. & L. Dig. 
 (2d ed.) 2659; Hoskins V. HustonTTlhirk H'a.') 4 8q_(i8j^). But where the 
 writ is delivered^ the sheriff has priority altliouc^h the debtor die before levy. 
 In re Aver^ Estate, i C. P. Kept. (Pa.) 151 (1877).
 
 69S EXECUTION 
 
 177 J."' The fourth section of this act is an exact transcript of the 
 sixteenth section of 29 Car. 2, ch. 3, ah-eady recited, with the excep- 
 tion of the words "of the person," which appear to have been omitted 
 in the Knghsh statute, evidently from oversight. Had not the rule 
 of tlie common law of England on this subject been in force here, 
 the passage of our act would have been wholly unnecessary. But 
 being in force here, and tlie like evils experienced from it, as were 
 there, it became necessary to apply a similar remedy. It is evident, 
 therefore, since the w-rit of fieri facias in this case was delivered 
 to the sheriff before the executions were issued, under which the 
 constable took and sold the goods, that they were bound by the fieri 
 facias, when the executions came into the hands of the constable, 
 whether the sheriff had actually then made a seizure of the goods or 
 not ; and as against a purchaser from the defendant in tlie execution, 
 tlie sheriff would, by virtue of the lien thus acquired, have had a right 
 to seize or take the goods at any time before the return day of the 
 fieri facias had passed by, and to sell them afterwards, for the pur- 
 pose of satisfying the debt mentioned in tlie writ.®^ But whether he 
 had such right, as against a purchaser without notice of the lien 
 under the fieri facias from a constable, where the latter took and 
 sold the goods under executions authorizing him to do so, seems to 
 present a different question. Under the statute of 29 Car. 2, it has 
 been held, that goods bought at a sale made under an execution, de- 
 livered to the sheriff subsequently to the delivery of a prior execu- 
 tion, were protected from the prior execution, in the hands of the 
 purchaser under the second execution; although, as to any other 
 part}^, the goods were bound by the prior delivery of the first writ, 
 under which the sheriff ought to have taken and sold them. This 
 distinction seems to have been considered necessary, in order that 
 the ends of justice might be advancd, which it was thought would be 
 frustrated, should the sales made under execution be suffered to be 
 invalidated by other executions, in being before or at the same time. 
 
 ••Re-enacted by the Act of Junej6^^836J- L. 755, §§ 39 and 40, 2 P. &. 
 L. Dig. (2d ed.) 3434; Shafnef'vTVUmore, 3 Watls_&_S- (Pa.) 438 (1842); 
 Sc huylkil l's Appeal, 30 Pa. St 358 U858). But a levy must be made before 
 tKe return~dnv'onHe'\vrit. Sturge7 Appeal, 8 6 Pa. S t. 413 (1878); In re^ 
 Braden's Estatejjl^ Pa. St. iB^Tso Atl.^46 (1895). And a writ of fieri 
 facias without levy creates no lien on real estate independent of the judgment 
 lien, Wilson's Appeal, 90 _Pa- St. 370_(i879). Hence, where neither of two 
 judgmenTsTTa lien upofriand7the tirst levy has the first grasp on the fund 
 raised by the sale. Shcrrardy. Johnson, 193 Pa. St. 166, 44 Atl. 252, 74 Am. 
 St. 680 (1899). Accdrd't ToTCTV v. Reed7W'ir^^~AA2 (1883)- As to life estates 
 see AVoLvJEaM^s^^SJAlaUsJTaXSJP (1839)- 
 
 •'In Ativood v. Pierson, g Ala. 656 (1846), it is said the right which 
 the sheriff, or other officer acquires, gives a special property only, and this for 
 the sole purpose of enabling him to perform the duty which the law enjoins. 
 But the general property, as wcH as the title, remains in the debtor, clogged, 
 it is true, with the lien created by the levy; and so it would be, in like 
 manner, if instead of actual seizure the execution was in the sheriff's hands. 
 It can not be said, therefore, that the seizure Creates an adverse title to the 
 debtor, for the general property remains with him, capable of disposition in 
 any way which does not impair the lien." 
 
 See Harrison v. IVilson, 2 A. K. Marsh. (Ky.) 547 (1820) ; Butler V. 
 Maynard, 11 Wend. (N. Y.) 54S, 27 Am. Dec. 100 (1834) ; Mumper v. Rush- 
 more, 79 X. Y. 19 ( 1879) ; Steffin v. Steffin, 4 Civ. Proc. R. (N. Y.) 179 (1883).
 
 DUNCAN V. m'CUMBER 699 
 
 Smallcomh v. Cross, i Ld. Raym. 252 ; Hutchinson v. Johnson, i 
 T. R. 729. It is certainly of the first importance in order that the 
 ends of justice may be fully met and answered, that personal, as well 
 as real estate, should bring fair prices at judicial sales, which can 
 not be affected with any degree of certainty, without giving all rea- 
 sonable protection to the purchasers thereof. And seeing such sales 
 are not only made publicly, but at a certain time and place, fixed 
 on for that purpose by the proper officer of which he is required 
 to give a certain previous notice, either by written or printed hand- 
 bills set up in the most public places, or advertisements published 
 in the newspapers of the country, so that all wishing to buy may 
 be informed of the sale about to be made, and that other officers, 
 having jvidicial process in their hands, which they ought to execute, 
 may be advised of what is going on, and assert their claims of 
 preference, if they have any, it would seem to be both expedient 
 and reasonable, that property once sold, in this manner, should not 
 be liable to be sold a second time, under judicial process against the 
 same defendant, after it shall have gone into the hands of the pur- 
 chaser, at the first sale. If an officer, who has judicial process 
 placed in his hands to be executed, shall through neglect of duty, 
 or want of proper vigilance upon his part, suffer a sale of property 
 to be made, under judicial process of later date, as to lien, whereby 
 an injury or loss shall accrue to the party in whose favor he holds 
 such process, it is better that he should be held liable for such loss 
 than that the purchaser should be disturbed in his enjoyment of the 
 property after having bought and paid for it. Under this view of 
 the case, and the law applicable to it, we are of opinion that the sale 
 of the goods in question, so far as the constable took and sold them, 
 under the execution against Rebecca Fellows, as the executrix of 
 Moses Fellows, deceased, was good, and that the sheriff could not 
 afterwards take the same goods out of the possession of the pur- 
 chaser at constable's sale. Consequently, if Duncan, the defendant 
 below,_ either advised the sheriff or his deputy to take the goods, or 
 aided in doing so, he thereby became a trespasser, and liable to be 
 sued by the plaintiff' below as such. But in regard to the goods taken 
 and sold by the constable, under the execution against Rebecca 
 Fellows, individually in her own right, we think the constable had 
 no right to take the goods in her possession belonging to the estate of 
 Moses Fellows, the testator, as long as the sheriff had in his hands 
 an execution against her, as executrix of the testator, which bound 
 the goods. Farr v. Newman, 4 T. R. 621.^^ The court below, how- 
 ever, instructed the jury otherwise. 
 
 Judgment reversed, and a venire facias de novo awarded.'^'' 
 
 "A levy upon property of a person other than the judgment debtor is a 
 trespass. Haz ard v. Israel, i B iniT, 24Q_2 Am. Dec. 438 (1808) ; Farrant v 
 Thompson,~2iy: & Ry. i (i822)TPhillips v. Hall, 8 Wend. (N. Y.) 610, 24 
 Am. Dec. 108 (1832) ; Carson v. McCormick Harvesting Maclt. Co., 18 Tex. 
 Civ. App. 225, 44 S. W. 406 (1898) ; Harris v. Nelson, 113 111. App. 487 (1902) ; 
 Graham v. Lane. ^ Brewst. (Pa.) 92 ("i860 ). 
 
 '"In Rogers v. Dickey, 6 111. (i Gilm.) 636, 41 Am. Dec. 204 (1844), the 
 court extracts the following principles from t)ic decisions : "First, that where
 
 -OO EXECUTION 
 
 RICE r. SERGEANT 
 
 Court of King's Bench, 1702 
 
 7 Mod. 37 
 
 A man Iiavinj:^ obtained a judj^mcnt for a just debt against A 
 took out a fieri facias and got the sheriff to seize the goods, but 
 would not let him proceed farther ; but suffered the goods to remain 
 in the custody of A, the debtor. B, who had also obtained a judg- 
 ment against A for a just debt, took out a fieri facias. 
 
 The question was whether he could seize upon the same goods. 
 
 And Per Curiam he may, for the former was a fraudulent exe- 
 cution and the sheriff might very well return nulla bona upon the 
 first execution.^^ 
 
 two or more writs of fieri facias are delivered at different times, either to 
 the same or different officers, and no sale is actually made of the defendant's 
 goods, the execution first delivered must have the priority-, though the first 
 seizure may have been made on a subsequent execution. Second, but where 
 the goods are actually sold by virtue of a levy made under a junior execu- 
 tion, the sale will be good, and the property can not aftervrard be taken from 
 the purchaser by the senior execution. The only remedy of the party injured 
 is against the officer." Accord : Sniallconib V. Buckingham, 5 Mod. 376, I Ld. 
 Ra>Tn. 251, I Salk. 320 (i6q6) ; Payne v. Drew, 4 East 523 (1804) ; Hotchkiss 
 v. McVickar, 12 Johns. (N. Y.) 403 (1815) ; Marsh v. Lazvrence, 4 Cow. 
 (N. Y.) 461 (1825) ; McCall v. Trevor, 4 Blackf. (Ind.) 496 (1838) ; Qimcqn 
 v. McCnmbcr. 2 Watts & S. (Pa.) 264 (1841), retrial of principal case; 
 WcClelland V. Shingluff, 7 Waffs'SrS'. (Pa.) 434, 42 Am. Dec. 224 (1844) ; 
 Miller v. Urady, 76 Ark. 276, 88 S.'^W.^oBjTJQOS) ; Love v. Williams, 4 Fla. 
 126 (1851) ; Faircloth V. Fcrrell, 63 N. Car. 640 (1869) ; Evans v. Walsh, 41 
 N. J. L.'28i, 32 Am. Rep. 201 (1879) ; Speclman v. Chaffee, 5 Colo. 247 (1880) ; 
 Stroudshnrg Bank's Aff^cal. 126 Pa. St. .S23, i7 .Atl. 868 (1889) ; In re J. R. 
 Richardson Co., 2b Del. 336, 83 Atl. 1034 (1912). 'Contra : Kerr v. Montgomery, 
 I Hill (S. Car.) 277 (1833) ; Robinson v. Cooler, I Hill (S. Car.) 286 (1833), 
 and see Lancaster v. Jordan, 78 Ala. 197 (18S4). 
 
 In .'Simpson v. Snvd cr, 4 Pa. D. R. 64l_ (1895), a constable who sold 
 under his levy after notice by the sheriff or ~a prior execution in his hands, 
 was held liable to the sheriff in assumpsit for the proceeds of his sale to an 
 amount sufficient to satisfj' his writ. 
 
 ^^At common lav/, goods taken in execution and suffered to remain in 
 the debtor's custody could be seized at the suit of another creditor. Twyne's 
 Case, 3 Coke 82, i Sm. L. Cas. i and note (1601) ; West v. Skip, i Ves. Sr. 
 456 (1749) ; Smith V. Russell, 3 Taunt. 400 (1811) ; Lovick v. Croivder, 8 B. & 
 C. 132 (1S2S) ; Christopherson v. Burton, 3 Exch. 160 (1848). The rule has 
 been so stated in American cases. United States v. Convngham, Fed. Cas. No. 
 14850, 4 Dall. 358, 1 L. ed. 865, Wall. Sr. 178 (1802) ; B'erry v. Smith, 3 Wash. 
 (C. C.) 60, Fed. Cas. No. 13S9 (1811) ; Roberts v. Scales. 1 Ired. L. (N. Car.) 
 88 (1840); Wilson v. Hensley, 4 Ired. L. (N. Car.) 66 (1843); Border v. 
 Benge, 12 Iowa 330 (1861) ; Parker v. Waugh, 34 Mo. 340 (1864). And, un- 
 doubtedly, if the property is left with the defendant not merely as custodian 
 but with the ordinary powers of an owner (such as the power to sell), the 
 levy will be regarded as merely colorable and fraudulent. Knox v. Summ ers, 
 4 Yeates (Pa.) 477 (1807) ; Farrington v. Sinclair, 15 Johns. (IN. Y.) 429 
 T1818) ; Dickenson v. Cook, 17 Johns. (N. Y.) 332 (1820) ; Cook v. Wood, 
 16 N. J. L. 254 (1837) ; In re Keyser's A p peal, 13 Pa- St. 409. 53 Am. Dec. 487 
 (1850) ; Webster v. Denison, 25 Vt. 493 0^53) V i'ruitt v. Lii dwig, 25 P a^_St.
 
 ORCHARD 
 
 WILLIAMSON 
 
 701 
 
 ORCHARD V. WILLIAMSON 
 
 Court of Appeals of Kentucky, 1831 
 6 /- /. Mar. (Ky.) 558 
 
 In the fall of 1828, Williamson being the owner of a bay mare, 
 swapped her with Mark Millian for a black mare. At the time the 
 exchange took place, Tudder, then a constable of the county in 
 which the parties resided, had two small executions in his hands 
 against Millian, which he levied on the bay mare in the possession 
 of Millian. On the same day, finding the black mare in the posses- 
 sion of Williamson, he levied them on her also, and carried them off. 
 After the exchange had taken place, he received a third execution 
 against Millian, which he also levied on each of the mares. 
 
 On the execution of bonds for the delivery of the property, to 
 the officer on the day of sale, by Millian with Orchard as his surety, 
 both mares were delivered to Millian ; who, to indemnify Orchard, 
 
 145 (1854) ; Jayne v. Dillon, 28 Miss. 283 (1854) ; PnryM A- (7 n^c Aj>p^l^j^i 
 Pa. St. 27.^, 80 A m. Dec. 615 (1861) ; Davidson v. rFaZtfroM, 31 Ilir^^or^S^rn- 
 T5ec. 206 (1863") ; Sage V. Woodin, 66 (N. Y.) 578 (1876) ; Acton & IVood- 
 nutt v. Knowlcs, 14 Ohio St. 18 (1862) ; Murphy v. Swadener, 33 Ohio St. 85 
 (1877) ; Wunderlich v. Roberts, 67 Ind. 421 (1879) ; Wtinsch v. McGraw, 4 
 Wash. y2, 29 Pac. 832 (1892) ; Glazier v. S a wyer, 11 P a. Co. Ct^_Rep. 34 
 (1892) ; Mulligan v. Barn e s. 171 Pa . St. ^3. T^'i'A tl. iioo"Ti8og,) ; Dunham v. 
 R undle, 4 Pa. Super._ Q^Il24^(i897). But the mere fact that the goods are 
 lett m the possession of the debtor does not, in some American jurisdictions, 
 alone constitute fraud in itself; there must be further evidence of mala fides 
 to deprive the creditor of his lien. Doty v. Turner, 8 Johns. (N. Y.) 20 
 (1811) ; Rew v. Barber, 3 Cow. (N. Y.) 272 (1824) ; Hoivell y. Al kyn, 2 Ra^vle 
 (Pa.) 282 (1830) ; Swigert v. Thomas, 7 Dana (Ky.) 220 (1838) ] Cumberland 
 Bank v. Hann, 19 N. J. L. 166 (1842) ; Larits v. lyorthinn tnn^ /\ p^ "^t. 753 
 45 Am. Dec. 682 (1846) ; Dutertre v. Driard, 7 Cal. 549 (1857) ; IVeidejiSjauLv. 
 ke yriolds, /iQ Pa. St. _ 23-Xj86=;) ; Elias v. Farley, 42 N. Y. (3 Keyes.) 398, 2 
 AEb. App. II, 5 Abb. Pr. (N. S.) 39 (1867) ; Dancy, Hyman & Co. v. Hubbs, 
 71 N. Car. 424 (1874) ; Carlisle v. Wathen, 78 Ky. 365 (1880). So, creditors 
 may, without destroying their lien, agree that the debtor's assignee for cred- 
 itors may sell the goods and pay them out of the proceeds. InjreKent, 
 Santfc fr Co 's Appeal. 87 Pa. St. i6S (1878) ; Mathezv's Estate , "14 4 Pa. St. 
 139', 22 Atl. 903 (1891) ; In r e L e idich's Esta te, iMIFa^St- 4'^i. 29 Atl. 89, 90 
 (1894) ; Broadliead v. Cornman, 171 Pa. St. 322, 33 Atl. 360 (1895). 
 
 In Power v. Van Bur en, 7 Cow. (N. Y.) 560 (1827), a levy was made in 
 December upon hides in vats undergoing the process of tanning and which 
 could not be sold before spring without sacrifice and the sheriff was directed 
 not to sell until May. Held, that the fieri facias was not dormant as to 
 subsequent executions. A postponement to avoid sacrificing the property was 
 reasonable. Whipple v. Foot, 2 Johns. (N. Y.) 418, 3 Am. Dec. 442 (1807) ; 
 Eantz v. Worthing ton, 4 Pa. St. 153, 45 Am. Dec. 682 (1846) ; Cj)nnelj__v. 
 ■ Q'Neil, 1 5 4 i"a. ^r 5 8^, 26"Atl. 607 (1893). Compare Burleigh v. Piper, 51 
 Iowa 649^2 N. W. 520 (1879); Sweetser v. Matson, 153 111. 568, 39 N. E. 
 1086, 27 L. R. A. 374, 46 Am. St. 911 (1894). 
 
 Where a proper order to proceed with the execution is given before a 
 second execution is delivered to the sheriff, the first has priority. Deacon V . 
 Govett, 4 Fhila . (Pa.) 7 (i860); In re Freeburger's Appeal. 40 Fa. St 24 4 
 (1861).
 
 -02 EXECUTION 
 
 permitted him to keep possession of them. Previous to the day 
 of sale. WilHamson, without the consent of MilHan or Orchard, 
 obtained possession of the black mare, and carried her to another 
 county : but Orchard having pursued him, regained possession ; and 
 on thiC day of sale, delivered each mare to the officer. He sold the 
 bay mare first, for a sum more than sufficient to discharge the two 
 executions which the constable had received, previous to the ex- 
 change between IMillian and Williamson. He then sold the black 
 mare, under the third execution ; whereupon Williamson as an in- 
 fant, by Detheridge his next friend, instituted an action of trover 
 and conversion against Orchard, claiming in his declaration, dam- 
 ages for an illegal conversion of each of the mares. Verdict for 
 Williamson for $20 and motion for new trial overruled. Orchard 
 prosecutes tliis writ of error.'^- 
 
 BucKXER, J. : Whether the constable had a right to sell the 
 black mare under the execution which he had not received until after 
 ^lillian and the defendant in error had made tlie exchange, is a 
 question in the solution in which we apprehend not the least diffi- 
 culty; but it is not presented in the present record, and to decide 
 it v.-ould be premature and useless. But the authority on the part 
 of the constable to levy the two executions which first came to his 
 hands, upon both of the mares, is directly involved; because, if he 
 had not authority to levy on both, it must result from the fact that 
 the defendant in error, being the owner of one or tlie other of them, 
 she was not subject to those executions; and in that event it is 
 clear that he was entitled to a verdict. 
 
 But if the levy made by the constable was valid, Williamson 
 had no right to demand the possession of either mare until the 
 money was made, by the sale, to discharge the two executions which 
 were rightfully levied. And having no right to the possession. 
 Orchard can not be properly charged with an illegal conversion, 
 for delivering possession of property to the officer, for the delivery 
 of which he was bound by his written obligation. Were the two 
 mares then subject to the two executions referred to? That they 
 were, we are satisfied. By the provisions of the statute on the 
 subject, all the property of a defendant in an execution, which is 
 subject to execution, is bound by it from the time of its delivery to 
 the sheriff. That tlie black mare, being the property of Millian, 
 and in his possession, in the county of Madison, w^hilst the officer 
 had in his hands two executions against his property, was subject 
 to them at the time Tudder made the levy, can not be questioned, 
 unless, by the transfer of her to the plaintiff in error, the lien, which 
 the law creates, had been released; a position which has not been 
 even contended for. But the argument is, that the levy on the 
 bay mare, made by the constable previously to that on the black, 
 was an affirmance of the exchange between Millian and the defend- 
 ant in error, and rendered that valid which had been previously 
 voidable at the option of the plaintiffs in the executions, but not 
 
 "The statement of facts is taken from the opinion of the court, part of 
 which is omitted.
 
 ORCHARD V. WILLIAMSON 703 
 
 void. This argument seems to be based on the supposition that the 
 constable had a right to levy on either one of the mares, but not on 
 both; a position, which is considered as entirely untenable. Both 
 of them, if necessary for the payment of the two executions men- 
 tioned, were properly levied on, and might have been sold, if the 
 first one sold had failed to bring the amount required. Suppose 
 the levy had been made on the black mare first, would the contract 
 of exchange between Millian and Williamson have been thereby 
 vacated, so that the latter would have had a right to demand from 
 the constable the bay mare, after he had taken her into possession 
 under levy? It is clear that he would not. Williamson would, in 
 such case, have his action against Millian for passing property 
 to him which had been subsequently taken and sold by a paramount 
 claim; but he would have no more right to the property, with the 
 title to, and possession of which he had parted, than he would have 
 had to it, if, instead of receiving by way of exchange the black 
 mare, Millian had assigned him a note on some insolvent man ; for, 
 in either c&se, Millian would be presumed to have acted in good 
 faith, until the contrary should be made to appear. It is, to be 
 sure, a misfortune for an individual to lose the property parted 
 with, as well as the consideration which he supposes he has re- 
 ceived ; but his misfortune, in such a case, is similar to those which 
 must be necessarily encountered, in many cases, by persons con- 
 tracting for property with men who have not a valid title to it, and 
 may be unable to make compensation for the injuries sustained. 
 Suppose that Millian had given to Williamson, in the exchange, 
 $50 as an estimated difference in the value of the two mares, and so 
 soon as he got the bay mare, had swapped her to a third person, 
 who had exchanged her with a fourth, for another horse ; and under 
 such circumstances, the constable had levied on the mare in Wil- 
 liamson's possession ; would he, in such case, have a right to retake 
 the bay mare? It is evident that he would not. And why? Be- 
 cause, although once the owner of her, he had parted with his 
 title to her, and delivered possession ; and Millian would then have 
 an unquestionable right to dispose of her as he might think proper. 
 In this case he had not sold hei-, but she was taken under execution 
 by an officer of the law, and the right of the plaintiff in such execu- 
 tion to have sold her, if necessary to the discharge of his executions, 
 was as undeniable as would be the right of the individual, in the case 
 put, to retain possession of her as his own property.'^" 
 Reversed and remanded for further proceedings. 
 
 "The general lien of an execution binds property acquired by the debtor 
 after the writ has come into the hands of the sheriff and while the writ is 
 current and unsatisfied. Shafncr v. Gilmore, 3 Watts & S. (Pa. ) 438 (1842); 
 Brown v. Burrus, 8 Mo. 26 (1843T; Ray v. tixrdseye, 5 Denio (N. Y.) 619 
 (1846) ; Grooms v. Dixon, 5 Strob. (S. Car.) 149 (1850) ; Wilson. Sieaer & 
 Co fs At>t>eal. 1 3 Pa. St. 426 ( 1850 ) ; Rtittan v. Lcvisconte, 16 U. C. Q. B. 495 
 riSTr) : SchuylktU's Af)t>cnl.\n'?7i. St. ^^8 (1858 ) ; State v. Blnndin, 32 Mo. 
 387 ( 1862) ; Roth V. IVells, 29 N. Y. 471 (1864) ; Carrier v. Thompson, 11 S. 
 Car. 79 (1878), before code; Blatchford v. Boyden, 122 III. 657, 13 N. E. 801 
 (1887); Clifford V. Logan, 9 Manitoba 423 (1894); Second Nat. Bank v. 
 Gilbert, 174 II!. 485, 51 N. E. 584, 66 Am. St. 306 (1898) ; Boisseau v. Bass,
 
 -04 EXECUTION 
 
 SECTION 4. THE LEVY 
 
 SEMAVXI^'S CASE 
 
 In the King's Bench, 1604 
 
 5 Coke 91 '* 
 
 In an action on the case by Peter Semayne, plaintiff, and Richard 
 Grcsham, defendant, the case was such: the defendant and one 
 George Berisford were joint tenants of a house in Blackfriars in 
 London for years; George Berisford acknowledged a recognizance 
 in tjie nature' of a statute-staple to the plaintiff, and being possessed 
 of divers goods in the said house died, by which the defendant was 
 possessed of the house by survivorship, in which the goods continued 
 and remained ; the plaintiff sued process of extent on the statute to 
 the sheriffs of London; the sheriffs returned the conusor dead, on 
 which the plaintiff had another writ to extend all the lands which he 
 had at the time of the statute acknowledged, or at any time after, 
 and all his goods vrhich he had at the day of his death ; which writ 
 the plaintiff delivered to the sheriffs of London and told them that 
 divers goods, which were the said George Berisford's at the time of 
 his death, were in the said house; and thereupon the sheriffs, by 
 virtue of the said writ, charged a jury to make inquiry according 
 to the said writ, and the sheriffs and jury accesserunt ad domum 
 
 100 Va. 207, 40 S. E. 647, 57 L. R. A. 380, 93 Am. St. 956 (1902) ; Birch River 
 Boom &c. Co. V. Glendon Boom &c. Co., 71 W. Va. 507, 76 S. E. 972 (1912) ; 
 Pastel! V. Avery, 12 Ga. App. 507, 77 S. E. 666 (1913). Articles acquired after 
 the return of the writ are not bound. Lloyd v. U'yckoff, 11 N. T. L. 218 (1830) ; 
 Mathews v. Warne, il N. J. L. 295 (1830) ; Cook v. Wood, 16 N. J. L. 254 
 (1837) ; FrrrA v. Copnlnnd. i8 W. N. C. (P a.) 94 (1886). And a specific lien 
 acquired by a levy on particular property will not bind after-acquired property. 
 Caldwell V. Fificld, 24 N. J. L. 150 (1853)- "Where the sheriff levies on a 
 specific article, or articles, namint? them, without more, he will be confined to 
 his lew ; as for example, where he levies on a horse, he will not be permitted 
 to sell a cow, or other article of property." IVilso n. Sicncr_ Co.'s Appeal, 13 
 Pa^ St. 4 26 (i8;o). , The lien of an execution on domestic animals attaches 
 to their young after they are born. Talbot v. Magce, 59 Mo. App. 347 
 (1894). Compare: Blum v. Light, 81 Tex. 414, 16 S. W. 1090 (1891). So a 
 levy on sheep includes the wool that may prow during the existence of the lien 
 of the execution. Young v. Williams, 21 N. Y. W. Dig. 249 (1885). 
 
 The lien of an execution without levy expires with the return day. 
 Cook V. Wood, 16 N. J. L. 254 (1837); Hathwav v. Howell, 54 N. Y. 97 
 (1873) ; Sttiraes' Appea l 86 Pa. St. di^ (1878) ; Walker v. FIcnry, 85 N. Y. 
 130 (iFRiTf^^rJsLjMin^r , 200 Pa. ^89 (lOQi) ; Olden v. Sassman, 72 N. J. 
 Eq. 637, 66 All. 603 (1907). But by levy on personalty the officer acquires a 
 special property in the goods seized which he may sell before or after the 
 return day in satisfaction of the writ. Religious Society oj_Roman Catholigs 
 V. HilrhrorJi, 2 Browne (Pa.) 333 (l8n); laylor v. Mnmford, 3 Humph. 
 (Tenn.T"66(i842) ; West v. Shocklev, 4 Harr. (Del.) 287 (1845) ; Paxsoi^s 
 A ppeal, 49 Pa. St. lo^ (i8 60 ; Herrcll v. Sizcland, 81 111. 457 (1876) ; Spencer 
 VTIaug, 45 Minn. 231, 47 N. W. 794 (1801) ; Ansonia Brass &c. Co. v. Con- 
 ner. 103 N. Y. 502, 9 N. E. 238, II Civ. Proc. R. 371 (1886). 
 
 '*Same case Cro. Eliz. 908; Yelv. 28; F. Moore 668; i Smith's L. Ca. 
 (nth ed.) 104.
 
 semayne's case 705 
 
 praedictam, ostio domus praedict' aperto existen' et bonis praedictis 
 in praedicta domo tunc existen' and they offered to enter the said 
 house, to extend the goods according to the said writ; and the 
 defendant praemissorum non ignarus intending to disturb the execu- 
 tion, ostio praed' domus tunc aperto existen', claudebat contra vice- 
 corn' & jurator' praed'; whereby they could not come, and extend 
 the said goods, nor the sheriff seize them, by which he lost the benefit 
 and tlie profit of his writ, etc. And in this case these points v/ere 
 resolved : 
 
 1. That the house of every one is to him as his castle and fortress, 
 as well for his defense against injury and violence, as for his 
 repose f^ and although the life of a man is a thing precious and fav- 
 ored in law ; so that although a man kills another in his defense, or 
 kills one per infortun, without any intent, yet it is felony, and in 
 such case he shall forfeit his goods and chattels, for the great regard 
 which the law has to a man's life ; but if thieves come to a man's 
 house to rob him, or murder, and the owner or his servants kill any 
 of the thieves in defense of himself and his house, it is not felony, 
 and he shall lose nothing, and therewith agree 3 E. 3. Coron. 303, 
 305, and 26 Ass. pi. 23. So it is held in 21 H. 7, 39, every one may 
 assemble his friends and neighbors to defend his house against vio- 
 lence; but he can not assemble them to go with him to the market 
 or elsewhere for his safeguard against violence; and the reason of 
 all this is, because domus sua cuique est tutissimum refugium. 
 
 2. It was resolved, when any house is recovered by any real 
 action, or by eject' firmae, the sheriff may break the house and de- 
 liver the seisin or possession to the demandant or plaintiff for the 
 words of the writ are, habere facias seisinam, or possessionem, and 
 after judgment it is not the house in right and judgment of law of 
 the tenant or defendant.''^ 
 
 3. In all cases when the king is party, the sheriff*, if the doors 
 be not open, may break the party's house, either to arrest him or to 
 do other execution of the king's process, if otherwise he can not 
 enter. But before he breaks it, he ought to signify the cause of his 
 
 '^"The forbearance of the borovigh law in refusing to allow officers 
 to enter a burgess's house to arrest, attach or distrain, vv'as the forbearance 
 of early folk-law, which made a man's house his castle, or rather his temple, 
 for the sanctity of the house seems to have been due to the religious origin 
 of the house-peace." Bateson, Introduction to Borough Customs, Vol. ll, 
 Selden Society. See Cicero Pro Domo, 41. 
 
 London (1122), Liber Albus, p. 69. "De quihus ita solet esse quod 
 acctisati non solcnt attachiari nisi in medio vico et in via; quia non in domibus 
 nee sub appenticiis." 
 
 Northampton {circa 1 190), Custumal, I, cap. 19, § i. "Nullus hallivus 
 potest capere naman in domo probi hominis neqiie super stallis ejus pro aliquo 
 planctu neqiie pro nllo debito nisi pro dcbito domini regis nisi per judicium 
 quod pcrtinct ad coronam domini regis." Borough Customs, Selden So- 
 ciety, Vol I, p. 103. 
 
 "Accord: Hozve v. Butterficld, 58 Mass. (4 Cush.) 303, 50 Am. Dec. 785 
 (1849). See note to Upton v. Wells infra page 810. So also where the writ is 
 for the recovery of specific chattels. Keith v. Johnson, i Dana (31 Ky.) 604, 
 25 Am. Dec. 167-n (1833) ; Hou'e v. Oyer, 50 Hun 559, 3 N. Y. S. 726, 20 N. Y. 
 St. 685 (1880) : Jo nes V. Herron. i Pa. Dist. R. 4 )7^ (1892). Contra: State v. 
 Beckner, 132 Ind. 371, 31 N. E. 950, 32 Am. St. 257 (1892). 
 
 45 — Civ. Proc.
 
 -o5 EXECUTION 
 
 comiiK. an.d to make request to open doors ; and that appears well by 
 the statute of Westni. I. ch. 17 (which is but an affirmance of the 
 common law) as hereafter appears, for the law without a default in 
 the owner abhors the destruction or breaking of any house, which 
 is for the habitation and safety of man, by which great damage 
 and inconvenience might ensue to the party, when no default is in 
 him; for perhaps he did not know of the process, of which if he 
 had notice, it is to be presumed that he would obey it; and that 
 appears by the book in 18 E. 2 Execut. 252, where it is said that 
 the king's officer who comes to do execution, etc., may open the 
 doors which are shut, and break them, if he can not have the keys ; 
 which proves, that he ought first to demand them, 7 E. 3, 16. J beats 
 R so as he is in danger of death, J flees, and thereupon hue and cry 
 is made, T retreats into the house of T they who pursue him, if the 
 house be' kept and defended by force (which proves that first re- 
 quest ought to be made) may lawfully break the house of T for it is 
 at the king's suit. 27 Ass. p. 66, the king's bailiff may distrain for 
 issues in a sanctuary. 27 (28) Ass. p. 35, by force of a capias on 
 an indictment of trespass the sheriff may break his house to arrest 
 him ; but in such case, if he breaks the house when he may enter 
 without breaking it (that is on request made, or if he may open 
 the door witliout breaking), he is a trespasser, 41 Ass. 15, on issue 
 joined on a traverse of an office in chancery, venire facias was 
 awarded returnable in the king's bench, without mentioning non 
 omittas propt' aliquam libertat' ; yet forasmuch as the king is party, 
 the writ of itself is non omittas propt' aliquam libertat', 9 E. 4, 9, 
 for felony or suspicion of felony, the king's officer may break the 
 house to apprehend tlie felon, and that for two reasons: i. For 
 the commonwealth, for it is for the commonwealth to apprehend 
 felons. 2. In every felony the king has interest, and where the 
 king has interest the writ is non omittas propter aliquam libertatem ; 
 and so the liberty or privilege of a house doth not hold against the 
 king.^^ 
 
 4. In all the cases when the door is open the sheriff may enter 
 the house, and do execution, at the suit of any subject, either of the 
 body or of the goods ; and so may the lord in such case enter the 
 house and distrain for his rent or service, 38 H. 6, 26a. 8 E. 2 
 Distr. 21 & 33 E. 3. Avow. 256, the lord may distrain in the 
 house, although lands are also held in which he may distrain.^^ 
 Vide 29 Ass. 49. But the great question in this case was, if by 
 
 "Accord: Brigcfs Case, 1 Rolle 336 (1615) ; Burdett v. Abbott, 14 East I 
 (1811) ; Laiinock v. Brown, 2 B. & Aid. 592 (1819) ; Harvey v. Harvey, L. R. 
 (1881) 26 Ch. Div. 644. 
 
 '■^Ryan v. Shilcock, 7 Exch. 72 (1851), holds that the lifting of the 
 fastening by which a door is kept closed is not unlawful in making a distress, 
 Pollock, C. B., saying: "The landlord has authority by law to open the door 
 in the ordinary way in which other persons can do it, when it is left so as 
 to be accessible to all who have occasion to go on the premises." Accord : Dent 
 V. Hancock, 5 Gill (Md.) 120 (1847). Contra: Curtis v. Hubbard, 4 Hill 
 (N. Y.) 437, 40 Am. Dec. 292 (1842). See State v. Arm field, 2 Hawks 
 (N. Car.) 246, II Am. Dec. 762 (1822) ; Long v. Clarke, L. R. (1894) i Q- B. 
 119.
 
 semayne's case 707 
 
 force of a capias or fieri facias at the suit of the party the sheriff, 
 after request made to open the door, and denial made, might break 
 the defendant's house to do execution if the door be not opened. And 
 it was objected, that the sheriff might well do it for divers causes. 
 
 1. Because it is by process of law; and it was said, that it would be 
 granted on the other side, that a house is not a liberty, for if a 
 fieri facias or a capias be awarded to the sheriff at the suit of a com- 
 mon person, and he makes a mandate to the bailiff of a liberty who 
 has return of writs, who nullum dedit lespons' in that case another 
 writ shall issue with non omittas propter aliquam libertatem ; yet it 
 will be said on the other side that he shall not break the defendant's 
 house as he shall do of another liberty; for whereas in the county 
 of Suffolk there are two liberties, one of St. Edmund Bury, and 
 the other of St. Etheldred of Ely, suppose a capias comes at the 
 suit of A, to the sheriff of Suffolk to arrest the body of B, the 
 sheriff makes a mandate to the bailiff of the liberty of St. Ethel- 
 dred, who makes no answer, in that case the plaintiff shall have a 
 writ of non omittas, and by force thereof he may arrest the defend- 
 ant within the liberty of Bury, although no default was in him. 
 
 2. Admitting it to be a liberty, the defendant himself shall never 
 take advantage of a liberty ; as if the bailiff of a liberty be defendant 
 in any action, and process of capias or fieri facias comes to the sher- 
 iff against him, the sheriff shall execute the process against him ; for 
 a liberty is always for the benefit of a stranger to the action. 3. For 
 necessity the sheriff shall break the defendant's house after such 
 denial as is aforesaid, for at the common law a man should not 
 have any execution for debt, but only of the defendant's goods. Sup- 
 pose then the defendant would keep all his goods in his house, and 
 so the defendant himself by his own act would prevent not only the 
 plaintiff of his just and true debt, but there would also be a great 
 imputation to the law, that there should be so great a defect in it, 
 that in such case the plaintiff by such shift without any default in 
 him should be barred of his execution. And the book in 18 E. 2. 
 Execution 252, was cited to prove it where it is said, that it is not 
 lawful for any one to disturb the king's officer, who comes to execute 
 the king's process ; for if a man might stand out in such manner, a 
 man would never have execution, but there it appears (as has been 
 said) that tliere ought to be request made before the sheriff breaks 
 the house. 4. It was said, that the sheriffs were officers of great au- 
 thority, in whom the law reposed great trust and confidence, and 
 are to be of sufficiency to answer for all wrongs Mdiich should be 
 done ; and they had custodiam comitat, and therefore it should not be 
 presumed that they would abuse the house of any one by color of 
 doing their office in execution of the king's writ against the duty of 
 their office, and their oath also, but it was resolved, tliat it is not law- 
 ful for the sheriff (on request made and denial) at the suit of a 
 common person, to break the defendant's house, sc. to execute any 
 process at the suit of any subject; for thence would follow great in- 
 convenience that men as well in the night as in the day should have 
 their houses (which are their castles) broke, by color whereof, great 
 damage and mischief might ensue; for by color thereof, on any
 
 708 EXECUTION 
 
 fcigfiied suit, the house of any man at any time might be broke 
 when the dofcndant niijj;ht be arrested elsewhere, and so men would 
 not be in safety or quiet in their own houses.''* And although the 
 shcritY be an officer of great authority and trust, yet it appears by 
 cxi^erience, that the king's writs are served by bailiffs, persons of 
 little or no value ; and it is not to be presumed, that all the substance 
 a man has in his house, nor that a man would lose his liberty, which 
 is so inestimable, if he has sufficient to satisfy his debt. And all 
 the said books, which prove, that when the process concerns the 
 king, that the sheriff may break the house, imply that at the suit 
 oi the party, th.e house may not be broken, otherwise the addition 
 (at the suit of the king) would be frivolous. And wnih this resolu- 
 tion agrees the book in 13 E. 4. 9, and the express difference tliere 
 taken between the case of felony, which (as has been said) con- 
 cerns the commonwealth, and the suit of any subject, which is for 
 the particular interest of the party, as tliere it is said in 18 E. 4. 4a. 
 bv Littleton and all his companions it is resolved that the sheriff 
 can not break the defendant's house by force of a fieri facias, but he 
 is a trespasser by the breaking, and yet the execution which he then 
 doth in the house is good.^° And it was said, that the said book 
 of 18 E. 2 was but a short note, and not any case judicially ad- 
 
 '■"PoUon V. Brozvn, I Keb. 698, I Sid. 186 (1664) ; Anonymous, 6 Mod. 
 105 (1703) ; Biickcnham v. Francis, II Moore 40 (1825) ; Ilslry v. Nichols, 
 12 Pick. (Mass.) 270, 22 Am. Dec. 425 (1831) ; Keith v. Johnson, I Dana 
 (31 Ky.) 604, 25 Am. Dec. 167-n (1833) ; Prcttyman v. Dean, 2 Harr. (Del.) 
 4Q4 (1839) ; State v. Hooker, 17 Vt. 658 (1845) ; Hooker v. Smith, 19 Vt. 151, 
 47 Am. Dec. 679 (1847) ; Snvdaker v. Brosse, 51 111. 357, 99 Am. Dec. 551 
 (1869) ; Welsh v. Wilson, 34 Minn. 92, 24 N. Vv''. 327 (1885) ; State v. Whit- 
 aker, 107 N. Car. 802, 12 S. E. 456 (1890) ; Jones y^H_ erron , i Pa. Dist. R. 
 475 (1892). But the shcriflf maj' break open the outer door of a workshop or 
 other building not part of the d'.vclling. Pent on V. Bro-ik'n, supra; Haggerty 
 & Kohlcs V. 'Wilbcr, 16 Johns. (N. Y.) 287, 8 Am. Dec. 321 (1810) McGce v. 
 Givan, 4 Blackf. (Ind.) 16 (1835) ; Hobson v. Thelluson, L. R. (1867) 2 Q. B. 
 642; Stearns v. Vincent, 50 Mich, 209, 15 N. W. 86, 45 Am. Rep. 37 (1883) ; 
 H odder v. Williams, L. R. (1895) 2 Q. B. 663. Wliere a sheriff gains peace- 
 ful entrance, he may break open inner doors and closets if they are not 
 opened on demand. King v. Bird, 2 Show. 87 (1680) ; Stale v. Thackam, i Bay 
 (S. Car.) 358 (1794) ; Ratcliffe v. Burton, 3 Bos. & P. 223 (1802) ; Hutchison 
 V. Birch, 4 Taunt. 619 (1S12). In Szcain v. Mi::ner, 74 Mass. 182, 69 Am. Dec. 
 244 (1857), where a building was leased in distinct portions to several ten- 
 ants, the slieriff who had entered the outer door was held to have no authority 
 to break into one of the apartments. Contra: Cantrell v. Conner, 6 Daly 
 (N. Y.) 39 (1875), and contra in the case of a lodger; Fee v. Gansel, I Cowp. 
 I (1774) ; Williams v. Spencer, 5 Johns. (N. Y.) 352 (1810). 
 
 '"Accord: Pcrcival v. Stamp, 9 Exch. 167 (1853). Compare D^ike of 
 Brunswick V. Slou.<n:an, 8 C. B. 319 (1849). An arrest on civil process after 
 breaking the outer door entitles the debtor to his release. Hodgson v. Town- 
 ing, 5 Dowl. 410 (1836) ; Kerbey v. Denby, I M. & W. 336 (1836) ; Slate v. 
 Hooker, 17 Vt. 658 (1845). Otherwise where the debtor has been arrested 
 and closes the door. Mahomed v. Queen, 4 !Moore P. C. 239 (1843) ; Sandon 
 V. Jervis, E. B. & El. 935 (18^9). The dictum in the principal case is criti- 
 cised in Curtis V. Hubbard, 4 liill. (N. Y.) 437, 40 Am. Dec. 292 (1842), where 
 an execution after an illegal entry was held invalid. Accord : Ilsley v.. Nichols, 
 12 Pick. (Mass.) 270, 22 Am. Dec. 425 (1831) ; People v. Hubbard, 24 Wend. 
 (N. Y.) 369, 35 Am. Dec. 628 (1840) ; Closson v. Morrison, 47 N. H. 482, 
 P3 Am. Dec. 459 (1867); Bailey v. Wright, 39 Mich. 96 (1878); Welsh v. 
 Wilson, 34 Minn. 92, 24 N. \\. 327 (1885).
 
 semayne's case 709 
 
 judged, and it doth not appear at whose suit the case is intended, 
 but it is an observation or collection (as it seems) of the reporter. 
 And if it be intended of a quo minus or other action in which the 
 king is party, or is to have benefit, the book is good law. 
 
 5. It was resolved, that the house of any one is not a castle 
 or privilege but for himself, and shall not extend to protect any 
 person who flies to his house, or the goods of any other which are 
 brought and conveyed into his house, to prevent a lawful execu- 
 tion, and to escape the ordinary process of law; for the privilege 
 of his house extends only to him and his family, and to his own 
 proper goods, or to those which are lawfully and without fraud 
 and covin there ;^^ and tlierefore in such cases after denial on re- 
 quest made, the sheriff may break the house ; and that is proved 
 by the statute of Westm. i. c. 17, by which it is declared, that the 
 sheriff may break a house or castle to make replevin, when the goods 
 of another which he has distrained are by him conveyed to his 
 house or castle, to prevent the owner to have a replevin of his goods ; 
 which act is but an affirmance of the common law in such points. 
 But it appears there, that before the sheriff in such case breaks the 
 house, he ought to demand the goods to be delivered to him for the 
 words of the statute are, "after that the cattle shall be solemnly de- 
 manded by the sheriif," etc. ".t^ 
 
 6. It was resolved, admitting that the sheriff, after denial made, 
 might have broke the house, as the plaintiff's counsel pretended he 
 might, then it follows that he has not done his duty, for it doth not 
 appear, that he made any request to open the door of the house. 
 Also the defendant, as this case is, has done that which he might 
 well do by the law, scil. to shut the door of his ov/n house. 
 
 "Lastly, the general allegation, praemisorum non ignarus, was 
 not sufficient in this case where the notice of the premises is so 
 material; but in this case it ought to have been certainly, and di- 
 rectly alleged; for without notice of the process of law, and of the 
 coming of the sheriff with the jury to execute it, the shutting of the 
 door of his own house was lawful. And judgment v/as given against 
 the plaintiff. 
 
 "The debtor's dwelling house is alone privileged. The sheriff may- 
 break the outer door of a third person's house to execute a fieri facias 
 against the debtor, but he acts at his peril and if there are no goods of the 
 debtor on the premises, he is a trespasser. Biscop v. White, Cro. Eliz. 759 
 (1600) ; White v. Whitshire, Palm. 52 (161Q) ; Stanhope v. Daivson, 2 Lutw. 
 1428 (1736); Johnson v. Leigh, l Marshall 565, 6 Taunt. 246 (1815) ; 
 De Graff enreid v. Mitchell, 3 McCord (S. Car.) 506, 15 Am. Dec. 648 (1826) ; 
 Fullerton v. Mack, 2 Aik. (Vt.) 415 (1828); Douglass v. State, 6 Yerg. 
 (Tenn.) 525 (1834); Stitt v. Wilson, Wright (Ohio) 505 (1834); Piatt v. 
 Brown, 16 Pick. (Mass.) 553 (1835); McGee v. Givan, 4 Blackf. (Ind.) 16 
 (1835) ; Morrish V. Murrey, 13 M. & W. 52 (1844) ; Burton v. Wilkinson, 18 
 Vt. 186, 46 Am. Dec. 145 (1846). So, as to a box in a trust company, United 
 States v. Graff, 67 Barb. (N. Y.) 304, 4 Hun 634 (1875) ; Klett v. Craig, i 
 W N. C (Pa.) 28 (187.^) : Tilling hast v. Johnson, 34 R. iri3'5782 Atl. 7§8 
 ~nm2). Compare Gregg v. Hilson.S Phila. (Pa.) 91 (1871).
 
 7IO EXECUTION 
 
 DUNCAN'S APPEAL 
 Supr eme Co urt. of PEim5YLVANiAi^6o 
 
 37 Pa. 500 
 
 This was an appeal from the decree of the Common Pleas of 
 Camliiia County, confirming the report of the auditor, appointed 
 to distribute the proceeds of the sheriff's sale of tlie personal prop- 
 erty of George McCann. 
 
 The facts are these : A writ of fieri facias was issued out of 
 the Court of Common Pleas of Cambria Count)', upon a judgment 
 in favor of Francis Christy, against the defendant, George ]\IcCann, 
 and placed in the sheriff's hands on the twenty-fifth of July, 1859. 
 On the twent3'-ninth of August, 1859, four other writs of fieri facias 
 were issued and placed in the hands of the sheriff — one at tlie suit of 
 Thomas Duncan ; one at the suit of Peter Ford ; one at the suit of 
 A. H. Rosenheimer & Brook; and the other at the suit of Mrs. Sarah 
 Duncan, upon which the sheriff on the said day, indorsed the 
 following levy: "August 29, 1859, levied on a planing machine, 
 with all the fixtures thereto belonging, as the property of George 
 !McCann. The above levy given in by John Fenelon, Esq., at Ebens- 
 burg." On the same day (also at Ebensburg) the sheriff indorsed 
 the same levy on the writ in favor of Francis Christy. On the 
 fifth day of September, 1859, a writ of fieri facias, at the suit of 
 Morris L. Ilallowell & Co. against the same defendant (McCann) 
 was placed in the sheriff's hands on said day at seven o'clock a. m., 
 on which, on the nineteenth day of the same month, the sheriff made 
 a levy (inter alia) of the said "planing machine, wdth all the fixtures 
 thereto belonging," being at the time, where the property was, and 
 having it in view. On the said nineteenth of September the sheriff 
 advertised the property, and sold the "planing machine" on the twen- 
 ty-eighth of September, 1859, for $500. An auditor appointed to 
 make distribution of the proceeds of the sale awarded the fund to 
 IMorris L. HoUowell & Co., fi.rst satisfying (with the consent of the 
 attorney for Hallowell & Co.) the balance of the writ in favor of 
 Christ)'. This appeal was then taken by the execution-creditors, 
 whose claims were rejected by the auditor and the court, who as- 
 signed for error here the confirmation of the auditor's report.^^ 
 
 Strong, J. : It is plain that the levy indorsed upon the appellant's 
 execution on the twenty-ninth of August, 1859, and also upon the 
 other writs returnable to September term, was of no avail against 
 subsequent execution-creditors. Whatever may have been its effect 
 as between the sheriff and George McCann, the debtor,^^ it was no 
 
 "Part of the statement of facts and the arguments of counsel are omitted. 
 
 ""It has been held that the endorsement of a levy upon property not 
 in view may be good, as between the parties, where the judgment debtor 
 assents. McGirr V. Hunter, 13 111. App. 195 (1883); Trovillo v. Tilford, 6 
 Watts (Pa.) 46S, 31 Am. Dec. 484 (1837); Dresser v. Ainszvorth, g Barb. 
 CN. Y.) 619 (1050) ; Rliame v. McRoy, 7 Rich. (S. Car.) 2i7 (1853) ; Caldzvell
 
 DUNCAN'S APPEAL 7II 
 
 levy at all, to create a lien upon the planing machine, as against 
 the appellees. In no sense can it be said to have been a seizure, either 
 actual or constructive. The property was neither in the power nor 
 in the view of the sheriff. It was ten miles distant, and was. not 
 seen by the officer until after the return day of the executions, when 
 he had no power to make or complete a levy under them. Nor was 
 it seen by him until he made an actual levy under the execution or 
 the appellees. 
 
 We have departed from the strictness required by the English 
 courts to constitute a levy.^* We do not require the sheriff in all 
 cases to take actual and exclusive possession of personal property, 
 but it never yet has been held that a levy can be made upon prop- 
 erty not in the power or at least in the view of the officer. The 
 indorsement upon an execution is itself no levy; it is but evidence. 
 The levy is an assertion of title by the sheriff, amounting at least 
 to a legal divestiture of the possession of the defendant, and such 
 as would subject the officer making it to an action of trespass, but 
 for the protection of the execution. It should be public, open and 
 unequivocal, not depending for proof of its having been made upon 
 a mere office entry. This is necessary in order to prevent fraud 
 and litigation in regard to the title to property. Secret liens are a 
 hardship to the community, and are not to be encouraged. 
 
 V. Fifield, 24 N. J. L. 150 (1853); Jayne v. Dillon, 28 Miss. 283 (1854); 
 Roebuck V. Thornton, 19 Ga. 149 (1855) ; Dean v. Thatcher, 32 N. J. L. 470 
 (1865) ; Fox V. Cronan, 47 N. J. L. 493. 2 Atl. 414, 4 Atl. 314, 54 Am. Rep. 190 
 (1885). Contra: Perry v. Hardison, 99 N. Car 21, 5 S. E. 230 (1888) semble; 
 Crawford v. Newell, 23 Iowa 453 (1867). 
 
 ^^Rice V. Sergeant, 7 Mod. 27 (1702); Bradley v. Wyndham, 1 Wils. 44 
 (1743) ; Blades v. Ariindale, i M. & S. 711 (1813) ; Ackland v. Paynter, 8 
 Price 95 (1820) ; Gladstone v. Padwick, L. R. 6 Exch. 203 (1871) ; Bissicks 
 V. Bath Colliery Co., L. R. 2 Exch. D. 459 (1877), 3 Exch. D. 174 (1878); 
 Ex parte Jones, 42 L. T. 157, (1880) ; Bower v. Hett, L. R. (1895) 2 Q. B. 51. 
 
 In Beekman v. Lansing, 3 Wend. (N. Y.) 446, 20 Am. Dec. 707 (1830), it 
 is said per Marcy, J. : "In England the officer enters upon the premises in 
 which the defendant's goods are, and leaves one of his assistants in posses- 
 sion of them, or he causes an inventory to be taken and removes them. We 
 are not disposed to go this length, but are of opinion that the officer should 
 enter upon the premises where the goods of the defendant are, and take 
 actual possession of them, if they are such of which possession can be taken. 
 The goods should be brought within his view, and subjected to his control, 
 and it is proper also, if not necessary, that an inventory should be taken of 
 them ; the officer should assert his title to the goods by virtue of the execu- 
 tion ; and we are inclined to think that his acts, as to the asserting of his rights 
 and the divesting of the possession of the defendant, should be of such a 
 character as would subject him to an action of trespass but for the pro- 
 tection of the execution; they should be public, open and unequivocal, and 
 nothing should be done by him to cast concealment over the transaction. 
 But it is not necessary that an assistant of the officer should be left in pos- 
 session of the goods, or that the goods should be removed; they may be 
 left in the custody of the defendant, at the risk of the plaintiff or of the 
 sheriff, or on obtaining, as is customarv, a receiptor for their delivery on 
 demand." See also Cox v. M cDonaal. 2 Yeates CPa.') 434 (1799); IVestervelt 
 V Pmckney, 14 Wend. (N. Y.) 123, 28 Am. Dec. 516 (1835) ; Moss v. Moore, 
 3 Hill (S. Car.) 276 (1837) ; Williamson v. Johnston, 12 N. J. L. 86 (1830) • 
 Polite v. Jefferson, 5 Harr. (Del.) 388 (1852) ; Ouackenhiish v. Henry, 42 
 Mich. 75, 3 N. W. 262 (1879) ; Auby v. Rathbiin, 11 S. Dak. 474, 78 N. W. 9=2 
 (1899); Gilfillan v. King, 239 Pa. 395. 86 Atl. 9 2.^ (1913).
 
 712 EXECUTION 
 
 If it were necessary to refer to .luthorities for the doctrine 
 tliat a levy can not be made upon personal property which is not at 
 the time in the power of the officer, so that he can take immediate 
 possession, or at least in his view, such authorities arc abundant 
 and at hand. It was said in ]]'ood v. J'anarsdale, 3 Rawle (Pa.) 
 401, that it (a levy upon such property) "can not be made without 
 the sheriff has it within his power and control, or at least within his 
 view; and if having it so he makes a levy upon it, it will be good 
 if followed up afterwards within a reasonable time by his taking 
 possession in such manner as to apprise everybody of the fact of 
 its having been taken in execution." It would seem that the learned 
 judge who delivered the opinion in that case, thought that to make 
 effective such a constructive seizure, viz., an assertion of title to 
 the property while it is in full view of the officer, or in his power, 
 it is necessary tliat it be followed up within a reasonable time by 
 taking actual and notorious possession.^^ Whether the levy can 
 be thus completed after the return day of the w^it, need not now 
 be considered, for in tliis case the goods having been ten miles dis- 
 tant, a levy was not commenced. The doctrine of IVood v. Vanars- 
 dale was reasserted in Lozvrx v. Coidter, 9 Barr (Pa.) 349, and in 
 the SchuylkUl Court's Appeal, 6 Cas. (Pa.) 358. 
 
 Such also are the decisions in other states, the courts of which, 
 like ours, have departed from the rigor of the English rule; Hagerty 
 V. IVilber, 16 John. (N. Y.) 288; Beeckman v. Lansing, 3 Wend. 
 (N. Y.) 440; JVesterz'cltv. Pinckney, 14 Wend. (N. Y.) 123; l^aii- 
 zvycke v. Pine, 2 Hill (N. Y.) 666; Barker v. Binninger, 4 Kern. 
 (N. Y.) 271 ; 8 B. l^.Tonr. (Ky.) 300; 4 Wis. 573. 
 
 Upon principle and authority, therefore, it must be held that 
 the appellant had no lien upon the planing machine by virtue of 
 any levy, and as his execution had no force after its return day 
 without a levy, the writ of the appellees was entitled to the money 
 arising from the sale. And as the appellant had no right to the 
 money he can not be heard to complain that a portion of it was ap- 
 plied to the execution of Francis Christy, with the consent of the 
 appellees. ®° 
 
 Decree affirmed. 
 
 1 
 
 ^Logsdon v. Spivey, 54 111. 104 (1870) ; Murphy v. Swadencr, 33 Ohio 
 St. 85 (1877) ; Dixon v^Vhiie Scwbi g Mack. C o., 128 Pa. St. ?,q7^ 18 Atl. 502, 
 5 L. R. A. 659, 15 Am. St. 683 (1889) ; In re Braden's Estate^ 165 Pa.^SL_ia4, 
 30 Atl. 746 (1895) ; Trimble v. Hunt, ibg III. App7~259 (1912) ; TTigdon v. 
 V/arrant IVarchouse Co., 10 Ala. App. 496, 63 So. 938 (1913)- 
 
 "Accord: Brian v. Strait, Dud. (S. Car.) 19 (1837) ; Ray v. Harconrt, 19 
 Wend. (N. Y.) 495 (1838) ; Van Wyck v. Pine, 2 Hill (N. Y.) 666 (1842) ; 
 Morse v. Hiird, 17 N. H. 246 (1845) ; Can-thorn v. McCraw, g Ala. 519 (1846) ; 
 Loziryy. Coulter. Q Pa. St. t,j\q (18 48) ; CaJiip v. Chamberlain, 5 Den. (N. Y.) 
 198 (1848) ; Broun v. I-'ratf, 4 Wis. "513, 65 Am. Dec. 330 (1856) ; Taffts v. 
 Manlove, 14 Cal. 47, 72> Am. Dec. 610 (1859) ; Minor v. Herriford, 25 111. 344 
 (1861) ; Minor v. Smith, 13 Ohio St. 79 (1861) ; Carey v. Brigh Us^.VTX.^i. 
 70 (1868, per Sharswood, J..: "A mere paper levj' is no levy at all, and a 
 .<:ale under it is a nullity as to subsequent execution-creditors and purchasers. 
 A man mipht have his bed sold from under him, by that means without Icnow- 
 inp it") ; Nenvian v. Hook, 37 Mo. 207, 90 Am. Dec. 378 (1866) ; Wilson v. 
 PozL'ers, 21 Minn. 193 (1S75); Dorrier v. Masters, 83 Va. 459, 2 S. E. 927
 
 MORGAN V. KIXNEY 713 
 
 MORGAN V. KINNEY 
 
 Supreme Court of Ohio, 1883 
 
 38 Ohio St. 610 
 
 LONGWORTH, J. : The decision in this case depends entirely upon 
 legal issues, the judgment below having been rendered upon de- 
 murrer. The facts of the case are correctly stated in the brief of 
 the plaintiff in error, and are as follov/s : 
 
 On October 10, 1878, the defendants, Gray & Smith, obtained 
 a judgment in the Court of Common Pleas of Cuyahoga County 
 against A. W. Anderson and others, and execution was at once 
 issued thereon to the sheriff of Belmont County. On October 12, 
 1878, the sheriff, without leaving St. Clairsville, tv/elve miles dis- 
 tant from Bellaire, indorsed upon the writ of execution in his hands, 
 that for want of goods and chattels whereon to levy, he levied upon 
 certain real estate, describing the town lots in Bellaire, as the prop- 
 erty of A. W. Anderson. But no record, other than this, was made 
 in the sheriff's office; and no entry of any kind was made on the 
 foreign execution docket, until after the filing of the assignment 
 deed hereinafter mentioned. On October 12, 1878, there was, in 
 Belmont county, belonging to A. W. Anderson and his co-defend- 
 
 (1887) ; Nelson v. Van Gazelle Valve Mfg. Co., 45 N. J. Eq. 594, 17 Atl. 943 
 (1889) ; Sawyer v. Bray, 102 N. Car. 79, 8 S. E. 885, 11 Am. St. 713 (1889) ; 
 Windmiller v. Chapraan, 139 111. 163, 28 N. E. 979 (1891) ; State v. Bcckncr, 
 132 Ind. 371, 31 N. E. 950, 32 Am. St. 257 (1892) ; Jones v. Howard, 99 Ga. 
 451, 27 S. E. 765, 59 Am. St. 231 (1896) ; Nighbcrt v. Hornsbv, 100 Tenn. 82, 
 42 S. W. 1060, 66 Am. St. 736 (1897) ; In re Pond, 21 Misc. 114, 46 N. Y. S. 
 999 (1897) ; Meyer v. Missouri Glass Co., 65 Ark. 286, 45 S. W. 1062, 67 Am. 
 St. 927 (1898) ; Samuel v. Knight, o Pa. Super. C\ -^^ ^ ( jRcxa\ ■ Hopke V. 
 Lindsay, 83 Mo. App. 85 (1899) ; Avon-by-the-Sea Land &c. Co. v. McDowell, 
 71 N. J. Eq. 116, 62 Atl. 865 (1906) semble, but otherwise where officer is not 
 entitled to take possession ; Sanders v. Carter, 124 Ga. 676, 52 N. E. 887 
 (1905) ; Cup pies V. Level, 54 Wash. 299, 103 Pac. 430, 23 L. R. A. (N. S.) 519 
 (1909) ; Peppers v. Harris, 145 Iowa 635, 124 N. W. 625 (1910) ; Hartr.ian v. 
 HefHe finger. 47 Pa. Super. Ct i don ') ; Russell v. State, 13 Ga. Apir^5r,^79^. 
 E. 495 (1913) ; Hobbs v. Williams, 175 Mo. App. 409, 162 S. VV. 334 (1914). 
 Contra: Flinn v. Fennirnore, 7 Houst. (Del.) 206, 31 Atl. 586 (1885). While 
 the officer may permit ponderous and unwieldy chattels to remain where he 
 finds them he must, nevertheless, assume control over them by some open 
 and unequivocal act. Davidson v. Waldron, 31 111. 120, 83 Am. Dec. 206 
 (1863); Hill v. Harris, 10 B. Mon. (Ky.) 120, 50 Am. Dec. =;42 (1849); 
 Gallagher v. Bishop, 15 Wis. 276 (1862) ; 'Harris v. Evans, 81 111. 419 (1876) ; 
 Kile v.J2Lihnrr, tt/] Pp St. 381. 7 At l. 154 (1886) ; Johnson V. Iron Belt Min. 
 Co., 78 Wis. 159, 47 N. W. 363 (1896) ; Stanley v. Moyniham, 45 111. App. 102 
 (1892); Field V. Fletcher, 191 Mass. 494, 78 N. E. 107 (1906); Graced. 
 Finleyson, 10 Ga. App. 480, 73 S. E. 689 (1911). The principle has been ap- 
 plied to cattle on range, Sheffield v. Key, 14 Ga. 528 (1854) ; Gunter v. Cobb, 
 82 Tex. 598, 17 S. W. 848 (1891), and growing crops. State v. Poor, 4 Dev. & 
 B. (N. Car.) 384, 34 Am. Dec. 387 (1839) ; Godfrey v. Broivn, 86 111. 454 
 (1877) ; Barr v. Cannon, 69 Iowa 20, 28 N. W. 413 (1886) ; Bilby v. Hartman, 
 29 Mo. App. 125 (1888) ; State v. Fowler, 88 Md. 601, 42 Atl. 2o'i, 42 L. R. A. 
 849, 71 Am. St. 452 (1898). See also Olden v. Sassman, 72 N. J. Eq. 637, 66 
 Atl. 603 (1907); Fligdon v. Warrant Warehouse Co., 10 Ala. App. 496, 63 
 So. 938 (1913).
 
 714 
 
 EXECUTION 
 
 ants, personal property subject to levy, amply sufficient to satisfy 
 saici'execurion. On October 21, 1878, A. W. Anderson made an as- 
 sijrnment for the benefit of creditors, and his assij^nment deed was 
 duly tiled with the probate juds^e the same day, and the assignee 
 gave bond and qualified according to law; and as such assignee 
 brought this suit. At tlie time this suit was brought, the sheriff had 
 made no return of any of his proceedings under said execution, to 
 the court from which the execution issued. 
 
 The suit was to enjoin the sheriff from selling the^ land under 
 this execution, the petition of plaintiff was dismissed in the court 
 of common pleas and judgment rendered for defendant, which judg- 
 ment was afterward affirmed in the district court. 
 
 It seems to us that the decision of this case depends entirely 
 upon the question whether the indorsement by the sheriff upon the 
 writ of execution constituted in itself a valid levy upon the land. 
 The doctrine is well settled that in respect to real estate the assignee 
 for the benefit of creditors stands in the shoes of his assignor, and 
 takes no greater estate than that held by him. He takes subject 
 to all liens and incumbrances existing at the time of the assignment 
 and is not to be regarded in equity as a bona fide purchaser without 
 notice. See Burrili on Assignment, section 391, and numerous cases 
 cited in the notes to the third edition. 
 
 By force of statute, an entry by the sheriff upon the foreign 
 execution docket operates as notice to the world ; and it is plain that 
 its omission in the present case, whatever might be its effect as 
 against a bona fide purchaser without actual notice, can not be taken 
 advantage of by the assignor who can not protect himself by want 
 of notice, either actual or constructive. 
 
 Neither can the assignor complain that at the time of the levy 
 he was possessed of personal property sufficient to satisfy the judg- 
 ment. If he did not choose to apply such property to its payment 
 he can not complain that the sheriff', failing to find goods and chat- 
 tels whereon to levy, proceeded to levy upon land.^^ 
 
 Was then this levy a valid one? Clearly it was, unless under 
 our statute the expression "seized in execution" shall be construed 
 as m.aking an actual seizure of some kind essential. See 75 Ohio 
 L. 680, S4.^^ In Gwynne on Sheriffs, 308, the law is stated thus: 
 
 *'In First Nat. Bank v. Black Hills Fair Assn., 2 S. Dak. 145, 48 N. W. 
 852 (1891), it is said, "If judgment debtors have personal property, let them 
 turn it over, or put it out to the sheriff; and then if he persists in selling the 
 realty, they have cause for complaint." Accord: Allen v. Gleason, 4 Day 
 (Coiin.) 376 (1810); Mavburv v. /owg^. 4 Yeates (Pa.) 21 ( 1804) semble; 
 Graves v. Mervjin, 19 Conn. 96 (1848) ; Sloan v. Stanly, li Ired. (N. Car.) 
 627 (1850) ;.P///.y V. Magic, 24 111. 610; Stancill v. Branch, 61 N. Car. 306, 
 93 Am. Dec. 592 (Phil. L. 1S67) (i860) ; Levan v. Millholland. 114 Pa. S t. 49, 
 7 Atl. 194 (1886) semble; Landrinn v. Broaazvell, no Ga. 538, 35 S. E. 638 
 (1900); see Cloud v. Lore, 5 Houst. (Del.) 163 (1876). 
 
 **Gen. Code Ohio (1910), § 11657 provides: "A judgment of the Supreme 
 Court for m.oncy shall bind the lands and tenements of the debtor within the 
 county in which the suit originated, from the first day of the term at which 
 the judgment is entered, and all other lands, and the goods and chattels of the 
 debtor, from the time they are seized in execution." In the principal case the 
 land was in a county other than that in which the judgment was recovered.
 
 MORGAN V. KINNEY ^1$ 
 
 "No entry by an officer on real estate is necessary to constitute a 
 levy. The officer may remain in his own office and not even go 
 vi^ithin view of the land; he need not seize upon any twig, turf, or 
 other part thereof as symbolical of the whole. His indorsement 
 upon the execution of a levy will constitute one to all intents and 
 purposes." 
 
 From the time that a valid levy is made, the land is in legal 
 sense "seized in execution" — that is, rendered liable for its satisfac- 
 tion. Nowhere in the statutes is the officer directed to make any 
 actual seizure, which it would seem could only be done by taking 
 possession of the land and ousting the judgment debtor. It would 
 be contrary to all previous notions concerning the duties of such 
 officers to hold that prior to sale or appraisement, and upon the 
 mere receipt of the writ it becomes their duty to enter upon the 
 debtor's land and take possession.^^ 
 
 Judgment affirmed. 
 
 Where the judgment is Itself a lien, the argument for a paper levy would 
 seem stronger. In Wood v. Colvin, 5 Hill (N. Y.) 228 (1843), it is said, per 
 Bronson, J.: "When the judgment is a lien upon the land, it is not necessary 
 that the sheriff should make any formal levy or seizure before proceeding to 
 advertise and sell. It would be an idle ceremony for him to go to the land or 
 make an inventory of it, or do any other act of the like nature. The judgment 
 binds the land, which is already in the custody of the law before the execu- 
 tion issues. The execution comes as a power to enable the creditor to reap 
 the fruits of the seizure already made." 
 
 ^'Accord: Catlin v. Jackson ex deni. Grafs, 8 Johns. (N. Y.) 520 (1811) ; 
 Cowden v. Brady. 8 Serg. & R. (Pa.) 505 (1822), per Gibson J., at p. 509, 
 and~see Troubat & Haly's Practice (1880), § 1216; Hammatt v. Bassett, 2 
 Pick. (Mass.) 564 (I824)'; Doe ex dem. Bardcn v. McKinne, 4 Hawks (N. 
 Car.) 279, IS Am. Dec. 519 (1826) ; Hall v. Crocker, 44 Mass. (3 Mete.) 
 245 (1841); Wood V. Colvin, 5 Hill (N. Y.) 228 (1843); Fitch v. Tyler, 
 34 Maine 463 (1852) ; Smith v. Morse, 2 Cal. 524 (1852) ; Fenno v. Coulter, 
 14 Ark. 38 (1853) ; JDiinnica v. Coy, 28 Mo. 525, 75 Am. Dec. 133 (1859) ; 
 Duncan v. Matncy, 29 Mo. 368, jy Am. Dec. 575 (i860) ; Bidwell v. Coleman, 
 II Minn. (Gil. 45) 78 (1865) ; Lockzvood v. Big clow, 11 Minn. (Gil. 70) 113 
 (1865) ; Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441 (1869) ; Rodgers v. 
 Bonner, 45 N. Y. 379 (1871) ; Isam v. Hooks, 46 Ga. 309 (1872) ; Hamblen v. 
 Hamblen, 33 Miss. 455, 69 Am. Dec. 358 (1857) ; Cavanaugh v. Peterson, 47 
 Tex. 197 (1877) ; Bank of British Columbia v. Page, 7 Ore. 454 (1879) ; 
 Sanger v. Trammell, 66 Tex. 361, i S. W. 378 (1886) ; Kile _v. Gieb ner, 114 Pa. 
 St. 381, 7 Atl. 154 (1886) semble; Lynch v Earlc, iSKnTsJirsS^Afl^^a 
 (1894) ; Hcrr v. Broadivell, 5 Colo. App. 467, 36 Pac. 70 (1895) ; Union Nat. 
 Bank V. Lane, 177 111. 171, 52 N. E. 361, 69 Am. St. 216 (1898); Acklin v. 
 Waltcrmier, 10 Ohio C. D. 629, 19 Ohio C. C. 2>7~ (1899) ; Jones v. Olson, 
 17 Colo. App. 144, 67 Pac. 349 (1902) ; Brittania Mining Co. V. United States 
 Fidelity &c. Co., 43 Mont. 93, 115 Pac. 46 (1911) ; Hunncman v. Phelps, 207 
 Mass. 439, 93 N. E. 697 (1911). Contra: Morgan v. Johnson, 27 La. Ann. 539 
 (1875) ; Watson v. Bondurant, 21 Wall. (U. S.) 123, 22 L. ed. 509 (1874) ; 
 Carlson v. Smith (Minn.), 149 N. W. 199 (1914) ; Waters v. Duvall, 11 Gill 
 & J. (Md.) 27, ZZ Am. Dec. 693 (1839) ; Elliott v. Knott, 14 Md. 121, 74 Am. 
 Dec. 519 (1S59) ; Langlcy v. Jones, 33 Md. 171 (1870). 
 
 So also in England, under a writ of elegit, the sheriff does not deliver 
 actual possession of the land to the judgment creditor, and the latter, if not 
 peaceably admitted, is driven to an action to obtain possession. Jefferson v, 
 Dawson, 3 Keb. 243 (1673) ; Taylor v. Cole, 3 T. R. 292 (1789) at p. 295; 
 Addison v. Tate, 11 Exch. 250 (1855) ; Hatton v. Haywood, 9 Ch. App. 229 
 (1874), at p. 236. And while a leasehold interest in land is sold as a chattel
 
 7l6 EXECUTION 
 
 CHEXERY r. STEVENS 
 
 SiTKF.Mr. JrniciAL Coukt of Massachusetts, 1867 
 97 Mass. 77 
 
 Writ of entry brouglit by the demandant as trustee of Almira 
 Richards, wife of Asa F. Richards, for possession of two tracts 
 of land in New Salem, declaring on his seisin for her life. Plea, 
 nul disseisin.®" 
 
 The tetiant claimed title by virtue of a levy of an execution in 
 favor of himself against Asa'p. Richards, the husband of Almira. 
 and contended thatthe consideration for the conveyance of the land 
 to Almira was paid by Asa F., and the conveyance was void as 
 against his creditors. The whole of the demanded premises were 
 set off by the officer, on the levy, October 2, 1865, and by his return 
 it appeared that they were appraised at the value of two thousand 
 dollars, while the amount needful to satisfy the execution, interest 
 and charges of levy, was nineteen hundred and ninety-four dollars 
 and eleven cents.®^ 
 
 The judge ruled that the levy was invalid, and instructed the 
 
 the sheriff does not take possession. King v. Dcane, 2 Show. 85 (1679) ; 
 Play fair v. Miisgrove, 14 M. & W. 239 (1845) ; Tit itsville Novelty Iron IVo rks' 
 4licqlJ77_£a.^-lQ^M^74) ', Maurer_v^lieafer 7Ti6 Pa. St . 339, 9 Atl. 869 
 
 The essentials of a valid levy or attachment of land is a rnatter of 
 statutorj^ provision in many jurisdictions. See Freeman on Executions (3d 
 ed.), § 280b. . _, 
 
 '^Only so much of the case as relates to the levy is prmted. 
 
 ^^Massachusetts in 1716 adopted a statutory method of subjecting land 
 to the payments of debts differing from the common law elegit. Gordon v. 
 Lewis, I Sumner 525, Fed. Cas. No. 5612 (1834). According to this practice, 
 which, with some variations, is followed in other New England states, the 
 officer, on taking land on execution, causes it to be appraised by three per- 
 sons, one appointed by the creditor, one by the debtor and the third by the 
 ofificer. The appraisers view the land, determine its value and set off by metes 
 and bounds to the creditor a sufficient quantity of land to satisfy the execution. 
 If the land can not be divided without damage to the v.'hole, the levy is made 
 on such undivided portion as will satisfy the execution to be held in common 
 with the debtor. The officer delivers seisin to the creditor or his attorney aiid 
 if a person other than the debtor is seised, he delivers such momentary seisin 
 as will enable the creditor to maintain an action therefor. The officer returns 
 the execution and appraisement to the court and within three months after 
 the levy has been completed causes the execution and return to be recorded. 
 The debtor may within one year after the levy redeem by paying the amount 
 for which the land was set off with interest, as well as taxes, liens and ex- 
 penses for repairs and improvements, receiving credit for the rents and 
 profits, whereupon the creditor shall deliver to the debtor a deed of release. 
 Mass. Rev. Laws (1902), ch. 178, p. 1603; Alaine Rev. Stat. (1903), ch. 78, 
 p. 668; Gen. Stat. Conn. (1902), § 921; Pub. Stat. N. H. (1891), ch. 23.3. 
 To obtain title by such proceedings every requirement of the statute must be 
 strictly followed. Ladd v. Blunt, 4 Mass. 402 (1808); Pierce v. Strickland. 
 26 Maine 277 (1846); FJlison v. Wilson, 36 Vt. 60 (1863); Pickering v. 
 Reynolds, in Mass. 83 (1872) ; Schroedcr v. Tomlinson, 70 Conn. 348, 39 Atl. 
 484 (1898); Freeman on Executions (3d ed.), § 372. In Massachusetts the 
 creditor if he so elects mav now sell the land on the execution. Hackctt v. 
 Buck, 128 Mass. 369 (1880). The Vermont statutes provide for a sale. 
 Vt. Pub. Stat. (1906), §§ 2170-76. 
 
 I
 
 CHEXERY V. STEVE>7S 
 
 717 
 
 jury that the demandment v/as entitled to recover upon the deed 
 to him from Almira Richards. A verdict was thereupon returned 
 for the demandant ; and the tenant alleged exceptions, 
 
 BiGELow, C. J.: Taking the return of the officer as it stands, 
 the levy was^ clearly invalid by reason of a seizure of more land 
 than was sufficient to satisfy the execution by the sum of five dol- 
 lars and eighty-nine cents. No amendment to the return has been 
 properly made by an application to the court since the execution 
 has become matter of record. Welsh v. Joy, 13 Pick. (Mass.) 477, 
 482. But tlie proposed amendment would not cure the difficulty. 
 There would still have been more land set off than the officer had a 
 right to take in order to satisfy the execution with all lav/ful fees. 
 This is fatal to the validity of the lev}^ Pickett v. Breckcnridge, 22 
 Pick. (]\Iass.) 297, is a decisive authority on this point, and also that 
 the amount of the excess for which the levy was made is not so in- 
 considerable as to fall within the maxim de minimis non curat lex. 
 The counsel for the tenant is in error in supposing that the validity 
 of a levy, where land has been set off for too large a sum, may be 
 made to depend on the proportion which such excess bears to the 
 whole amount of the execution ; or, in other v/ords, that if the error 
 is relatively small as compared with the debt, it is immaterial that 
 more land has been set off to the creditor tlian he is justly entitled 
 to. But this can not be so. In the transfer of title to real estate 
 by virtue of a statute power, the requisitions of law m.ust be strictly 
 complied with. The sheriff can take no more land than is exactly 
 sufficient to satisfy the execution. If he errs in this respect, as a levy 
 can not be void in part and valid in part, the whole is void.®- 
 
 Exceptions overruled. 
 
 ^•Accord: Huntington v. IVinchell, 8 Conn. 45, 20 Am. Dec. 84 (1830) ; 
 Skinner v. McDanicl, 5 Vt. 539 (1833); Pickett v. Breckcnridge, 22 Pick. 
 (Mass.) 297, 2,3 Am. Dec. 745 (1839) ; French v. Eaton, 15 N. H. 2>?>7 (1844) ; 
 Bates V. Willard, 51 Mass. 62 (1845) ; Thayer v. Mayo, 34 Maine 139 (1852), 
 where the excess was fifty-two cents; McGregor v. Williams, 64 Mass. (10 
 Cush.) 526 (1852) ; Glidden v. Chase, 35 Maine 90, 56 Am. Dec. 690 (1852), 
 where the excess was fourteen cents; Webster v. Hill, 38 Maine 78 (1854) ; 
 Bachelder v. Thompson, 41 Alaine 539 (1856) ; Prescott v. Prescott, 62 Maine 
 428 (1873). But a levy is not to be avoided because the officer has taxed, and 
 caused to be satisfied in the extent, fees not authorized by law. In such case 
 the officer is liable to the debtor, but the creditor is not to suffer for the 
 error or extortion of the officer. ^Stiirdivant v. Frothingham, 10 Maine 100 
 (1833) ; Odiorne v. Mason, 9 N. H. 24 (1837) ; Camp v. Bates, 13 Conn, i 
 (1838); Holmes v. Hall, 45 Mass. (4 Mete.) 419 (1842); Keen v. Briggs, 
 46 Maine 467 (1859) ; Avery v. Bowman, 40 N. H. 453, yj Am. Dec. 728 
 (i860) ; Wilson v. Gannon, 54 Maine 384 (1867). 
 
 Aside from statutes while an excessive levy maj^ be set aside by the 
 court from which the execution issued, it is not, unless set aside, invalid 
 and will support a sale. Deceit v. Odcll, 3 Hill (N. Y.) 215, 38 Am. Dec. 628 
 (1842); Donaldson v. Bank of panville, 20 Pa. St. 245 (1853); Brozvn v. 
 Allen, 3 Head ( lenn.) 429 (1859) ; Pugh v. Calloway, 10 Ohio St. 488 (i860) ; 
 Black V. Nettles, 25 Ark. 606 (1869) ; Cam pan v. Godfrey, 18 Mich. 27, 
 100 Am. Dec. 133 (1S69) ; Drake v. Murphy, 42 Ind. 82 (1873) ; Bogle v. 
 Bloom, 36 Kans. 512, 13 Pac. 793 (1887) ; McConnell v. Kaufman, 5 Wash. 
 686, 32 Pac. 782 (1893); Backus v. Barber, 107 Mich. 468, 65 N. W. 379 
 (1895) ; Hunt v. Lavender, 140 Ga. 137, 78 S. E. 805 (1913) ; see also Gary 
 Brick Co. V. Tilion, 20S Fed. 497 (1913).
 
 j-lS EXECUTION 
 
 SECTION 5. EXEMPTIONS 
 
 FINK V. FRAENKLE 
 City Court of New York, 1891 
 
 20 A". Y. Civ. Proc. 402 
 
 Appeal by the judgment creditor from an order of the special 
 tcnn denying a motion made by them to punish the judgment debtor 
 for contempt in refusing to deliver to the referee appointed in pro- 
 ceedings supplementary to execution, certain property owned by 
 him. 
 
 Van Wyck, J. : The plaintiff issued an execution against the 
 property of defendant, which was duly returned unsatisfied, where- 
 upon he obtained an order in supplementary proceedings for the 
 examination of defendant, and upon his examination the judgment 
 debtor testified that he was a physician in active practice; lived at 
 115 Second street; was unmarried; had no children; and owned a 
 set of furniture for his waiting-room, a set for his bedroom, a 
 library of about two hundred volumes, and his surgical instruments; 
 and that all his furniture was worth about $200, and the surgical 
 instruments about $150 ; and that the books and office furniture were 
 used by him in his business, and, though he does not so testify, it is 
 to be presumed that he also used the instruments in his business. 
 He made no attempt to show that he was a householder, or that he 
 had a family or any person for whom he provided. 
 
 At common law neither a judgment debtor nor his family had 
 any way of exempting any portion of his property from execution 
 for his or their benefit,^^ so that any privileges that he may now have 
 
 *'At common law, under a writ of fieri facias, the sheriff had authority 
 to seize evers-thing that was a chattel belonging to the defendant except 
 necessary wea'ring apparel. Tidd's Practice (1828) looi ; Hardistey v. Barney, 
 Comb. 356 (1695). But in distress for rent beasts of the plow could not be 
 taken when there were other suflficient subjects of distress on the premises. 
 Piggott V. Births, i M. & W. 442 (1836); Keen v. Priest, 4 H. & N. 235 
 (1859) ; or as Cooke puts it: "Beasts belonging to the plow, averia carucae, 
 shall not be distrained, which is the ancient common law of England, for no 
 man shall be distrained by the utensils or instruments of his trade or profes- 
 sion, as the axe of a carpenter, or the books of a scholar, while goods or 
 other beasts which Bracton calls the animalia (or catella) otiosa may be 
 distrained." Co. Litt. 47a. By the act of 1888 (51 and 52 Vict.), ch. 51, § 4, 
 the same goods are exempt from distress as are protected from seizure on 
 execution by § 95 of the County Courts Act of 1846 (9 and 10 Vict., ch. 95). 
 These articles are the same as those exempted from execution by the Small 
 Debts Act of 1845 (8 and 9 Vict., ch. 127), § 8 namely: "The wearing apparel 
 and bedding of any judgment debtor or his family, and the tools and imple- 
 ments of his trade, the value of such apparel, bedding, tools and implements 
 not exceeding in the whole the value of five pounds." In re Dawson, L. R. 
 (1899) 2 Q. B. 54; Davis v. Harris, L. R. (1900) i Q. B. 729; Masters v. 
 Fraser, 85 X. T. 611 (1902). In Lavell v. Richings, L. R. (1906) i K. B. 480, 
 a cab, the onlv article on the premises, was held exempt from distress, as an 
 implement of 'trade although above the value of £5, as the debtor must be left 
 at least £5 worth of tools.
 
 FINK V. FRAENKLE 719 
 
 in that direction must be sought for in the statutory law, and in this 
 state the laws which exempt from execution the judgment debtor's 
 personal property are to be found in the Code of Civil Procedure, 
 section 2463, which exempts his earnings for personal service within 
 sixty days, when "necessary for the use of a family, wholly or 
 partly supported by his labor;" section 1390 which exempts certain 
 articles of personal property therein enumerated, "when owned by 
 a householder;" and section 1391, which exempts "furniture, pro- 
 fessional instruments, library, and certain other articles, not exceed- 
 ing in value $250, owned by a person being a householder, or hav- 
 ing a family for which he provides." The judgment debtor in this 
 case is left to the necessity of seeking and finding his justification 
 for refusing to deliver his property to his receiver in these three 
 sections of the code. 
 
 Perhaps it would be well to state in passing that when the judg- 
 ment debtor is a woman, she has, by section 1392, the same exemp- 
 tions as a householder has under sections 1390 and 1391. 
 
 The concensus of judicial thought is that the harsh rule of the 
 common law, which stripped judgment debtors of everything except 
 the clothes upon their backs, was mollified by statutory provisions, 
 "as a protection for poor and destitute families," and "to mitigate 
 the consequences of men's thoughtlessness and improvidence."^* 
 Judge Selden, in the Crawford case, in the Supreme Court, 9 How. 
 Pr. (N. Y.) 548, says: "Although our statutes exempting certain 
 articles of prime necessity, belonging to householders, from levy and 
 sale upon execution, were intended for the benefit of the entire 
 family and not of its head alone, still I entertain no doubt that the 
 master of the family may waive the exemption." However, the court 
 of appeals in the Kneettle case, 22 N. Y. 240, has held that the house- 
 holder can not even waive the right of exemption, as it is for the 
 benefit of the family for which he provides.^'' In the Kneettle case 
 
 ®?In several decisions statutes granting exemptions are regarded as in 
 derogation of the common law and to be construed strictly. Rue v. Alter, 
 5 Denio (N. Y.) 119 (1847) ; Knahh v. D rak^-jzT, Pn, St_^iga 62 Am. Dec. 
 
 352 (1854) ; Grimes v. Bryne, 2 Minn, (i Gil. 72) 89 {i%^)\Garaty & Arm- 
 strong V. DuBose, 5 S. Car. 493 (1874) ; Wlnte v. Hcffner, 30 La. Ann. 1280, 
 31 Am. Rep. 238 (1878) ; London & Canadian Loan Agency Co. v. Connell, 
 II Manitoba 115 (1896). But the doctrine more generally accepted is that 
 such statutes, being remedial, beneficial and humane, will be liberally con- 
 strued. Parkerson v. Wightman, 4 Strob. (S. Car.) 363 (1850) ; Montague v. 
 Richardson, 24 Conn. 338, 63 Am. Dec. 173 (1856) ; Deere v. Chapman, 25 111. 
 610, 79 Am. Dec. 350 (1861) ; Stewart v. Brown, 2,7 N. Y. 350, 93 Am. Dec. 
 578 (1867) ; Pond V. Kimball, loi Alass. 105 (1869) ; Good v. Fogg, 61 111. 449, 
 14 Am. Rep. 71 (1871) ; Heath v. Keyes, 35 Wis. 668 (1874) ; Astley v. Capron, 
 89 Ind. 167 (1883) ■ Commonwealth v. Boyd, s6 Pa. St. 402 (1867) ; Byoiis v. 
 Mount, 89 Tenn. 361, 17 S. W. 1037 (1890); Yates County Nat. Bank v. 
 Carpenter, 119 N. Y. 550, 23 N. E. 1108, 7 L. R. A. 557, 16 Am. St._855 (1890) ; 
 Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892) ; Ferguson v. Spcith, 13 Mont. 
 487, 34 Pac. 1020, 40 Am. St. 459 (1893) j Noycs v. B elding, 5 S. Dak. 603, 
 59 N. W. 1069 (1894) ; Hutchinson v. Whitmore, 99 Mich. 255, 51 N. W. 451, 
 30 Am. St. 431 (1892) ; Nelson v. Fightmaster, 4 Okla. 38, 44 Pac. 213 (1896) ; 
 Cook v. Allee, 119 Iowa 226, 93 N. W. 93 (1903) ; In re Swanson, 213 Fed. 
 
 353 (1914)- 
 
 ""Accord: Crawford v. Lockzvood, g How. Pr. (N. Y.) 547 (1854); 
 Harper v. Leal, 10 How. Pr. (N. Y.) 276 (1854) ; Maxwell v. Reed, 7 Wis.
 
 -JO F.Xr.CUTION' 
 
 the execution \vas issued upon a judj^ment recovered on a promis- 
 sory note containing- this pr«)vision: "And T hereby waive and relin- 
 quish all right of exemption of any property I may have from execu- 
 tion on this debt;" and judge Denio in that case, writing in support 
 of the contention that the right of exemption can not be waived, 
 reiterates the oft-repeated construction given to these statutes, as 
 follows: "These exemption laws a]>ply only to householders who 
 have families for which they provide." 
 
 All of this judicial reasoning goes to establish that only a house- 
 hold's property is exempt; that a householder is the master of a 
 household; and that a household is a family living togetlier, how- 
 ever not necessarily wife and children, but it must be a family, 
 small or large, for which he provides. 
 
 This judgment debtor has not in any wMy shown himself a 
 householder, or a man having a family for which he provides, and 
 hence it follows that he should have been forced to yield up_ his 
 property to his receiver in order that it might reach his creditor, 
 tlie plaintiflr.^^ 
 
 The order appealed from must be reversed, with costs. 
 
 Ehrlich, C. J., concurred. 
 
 SS^ (18^9) ; Denny v. White, 2 Cold. (Tenn.) 283, 88 Am. Dec. 596 (1865) ; 
 Curtis V. O'Brien, 20 Iowa 376, 89 Am. Dec. 543 (1866); Moxley v. Ragan, 
 10 Bush (Kv.) 156 (1873); ^^cchf V. Kelly, 82 111. 147, 25 Am. Rep 301 
 (1876) • Branch v. Tomlinson. 77 N. Car. 388 (1877) ; Walbngsford v. Ben- 
 nett, I Mackev (D. C.) 303 (1881) ; Green v. Watson, 75 Ga. 471, 45 Am. Rep. 
 479 (188O ; Mills V. Bennett, 94 Tenn. 651, 30 S. W. 748, 45 Am. St 763 
 (1893) ; Pozi-ell v. Daily, 61 111. App. S52 (1895') ; Roach v. Curtis, 191 N. \. 
 2^^7 84 X E. 283 (1908) semble. Contra: Heives v. Parkman, 20 Pick. 
 (Mass ■) 00 (1838) ; Case v. Dunnwre . 2% Pa._SLjQ3 (1854) ; La ucks' Appe al, 
 24 Pa. St 426 (185 O ; BaianmtJL^ilileju OJ Pa^t. 225, 72 Am. Dec. 738 
 JiB^EJT^^Tocketrv. Johnson, 22 La. Ann. 89 (1870); Patterson v. Taylor, 
 1=; Fla 336 (1875) ; Fogg v. Little field, 68 Maine 52 (1877) ; Keyhers v. Mc- 
 Comher, 67 Cal. 395, 7 Pac 838 (1885) ; B^tiyji^Rankin^Lm^^^^L^^ 21 
 Atl 74 (1890) ; Moss V. Jenkins, 146 Ind.^9. 45T^nr7S9 (1896) ; Rrqenert 
 v. Mead, S9 Kans. 665, 54 Pac. 684 (1898) ; VVriuhtv,Wright (Pa.). 103 Fed. 
 
 580 (1900). , . „ r •. X • 
 
 *'^The statutes giving the right of exemption usually conhne it to resi- 
 dent "householders" or "heads of families." For the construction of these 
 tenns see Herman on Executions, § 94; Freeman on Executions (3d ed.), 
 S ^2^- 18 Cvc 1397; 7 A. & E. Encvc. of Law 133, and see further Woodward 
 V ~Murrav, "18 Johns. (N. Y.) 400 (1820) ; Bowne v. Witt, 19 Wend. (N. Y.) 
 475 (1838); Bonncl v. Dunn, 28 N. J. L. 153 (1859); Marsh v Lazenby, 
 A\ Ga. 153 (1870) ; Bunnell v. Hay, 73 Ind. 452 (1881) ; Linton v. Crosby, so 
 iowa 385, 9 N. W. 311, 41 Am. Rep. 107 (1881) ; Zimmerman v. Franke, 
 31 Kans. 650, 9 Pac. 747 (1886) ; Chamberlain v. Darrozv, 46 Hun 48, li N. Y. 
 St 100 (1887) ; Pettit v. Muskeaon Booming Co.. 74 Mich. 214, 41 N. W. 900 
 (1889) ; Boelter v. Klossner, 74 Minn. 272, 77 N. W. 4, 72, Am. St. 347 (i8q8) ; 
 Webster V. McCauvran, 8 N. Dak. 274, 78 N. W. 80 (1899) ; Rolater v. King, 
 13 Okla. 37, 73 Pac. 291 (1903) ; Duffey v. Reardon, 70 Ohio St. 328 71 N. E. 
 712 (1904). The exemption in some jurisdictions extends to inhabitants 
 whether married or single. Brown v. Wait, 36 Mass. 470, 31 Am. Dec. 154 
 (1838); Cobbs V. Coleman, 14 Tex. 594 (1855); Die ffenderfer v . Fisher, 
 ■X Grant (Pa.) ^o (18^ 9). , . . ^ 
 
 In a number of states constitutional provisions exempt certain property 
 
 from sale on execution, in others homestead exemptions are provided and 
 in some states both. Stimson's Amer. Stat. Law, §§ 83 and 84. The kind, 
 value and amount of property exempt varies in the different states. Herman
 
 POND V. KIMBALL 
 
 721 
 
 POND V. KIMBALL 
 
 Supreme Judicial Court of Massachusetts, 1869 
 loi Mass. 105 
 
 Tort by Sylvanus W. Pond and Hamon E. Leland against the 
 sheriff of Middlesex, for the act of his deputy in attaching, on a 
 writ against the plaintiffs, property belonging to them, but alleged to 
 be exemf t from attachment. 
 
 At the trial in the superior court, before Brigham, J., it appeared 
 that the plaintiffs were copartners; that all the property attached 
 was partnership property ; and that some, if not all, of it came with- 
 in the exemption of the statute, part as tools and implements, part 
 as materials and stock, unless the fact that it was partnership prop- 
 erty prevented its coming within such exemption. The presiding 
 judge ruled that the fact that it was partnership property did not 
 render it liable to attachment if it would otherwise have been ex- 
 empt; ordered a verdict for the plaintiffs and reported the case to 
 this court.^'' 
 
 Ames, J. : This report finds that the property described in the 
 plaintiffs' declaration belonged to them as copartners. It had been 
 procured by them to be used in their shop, as appropriate to and 
 usual in the prosecution of their joint business. A portion of it 
 falls within the description of "tools and implements" necessary to 
 the prosecution of their trade and business, and another portion 
 under that of "materials and stock" necessary for the same purpose, 
 and intended to be used or wrought therein.^^ 'pj^g clsLim of 
 
 on Executions, § 97; N. Y. Code Civ. Proc, §§ 1389-1404; Mass. Rev. Laws 
 (1902), 1598, ch^ 177, § 34; N. J. Comp. Stat. (1910) 2745, §§ 10-17; Pa. Act of 
 Apri 9. 1849. P. L. 533, P. & L. Dig. (2d ed.) 3342, Mar. 4, 1887, T: L7^, 
 
 April 4, 1889 , P. L. 23. ' 
 
 In some jurisdictions the exemption is allowed only in actions on con- 
 tracts. State v. Mclogiie, 9 Ind. 196 (1857) ; Kirkpatnck v. White, 29 Pa St 
 176 (1857) ; Kenyan v. Goi dd^ bi Pa. St._292 (1869I ;'MEssle VrEnydrT, 
 33 Ark. 688 (1878) ; Northern v. tianners, 121 Ala. 587, 25 So 817 yj Am St 
 74 (1898); DeHart v. Haiin, 126 Ind. 378, 26 N. E. 61 (1890). Contra- 
 Smith V. Omans, 17 Wis. 395 (1863) ; Conroy v. Sullivan, 44 111. 451 (1867) * 
 Dclhnger v. Tweed, 66 N. Car. 206 (1872); Loomis v. Gerson, 62 111 n 
 
 °'Part of the statement of facts is omitted. 
 
 *'Many exemption laws specify tools of trade but there is great diversity 
 of opmion as to what articles come within that description. See Kilbnrn v 
 Demmmg 2 Vi 404, 21 Am. Dec. 543 (1829), spinning machine exempt; 
 Ktcliie V McCaulcw 4 Pa. 47LJC1846), expensive stamping blocks not exempt; 
 Loddard v. Chaffee, 84 Mass. (2 Allen) 395, 79 Am. Dec. 796 (1861) 
 musicians' violin exempt; Wallace v. Bartlett, 108 Mass. 52 (1871) shop 
 furnishings not exempt; Wilkinson v Alley, 45 N. H. 551 (1864), farming 
 implements exempt; Allen v. Thompson, 45 Vt. 472 (1873), barbers' chair 
 exempt; Amend v. Murphy, 69 111. 2>2>7 (1873), rnusic teacher's piano exempt; 
 Bitting V Vanderburgh, 17 How. Pr. (N. Y.) 80 (1859), watch exempt. 
 V°<?*Jf" J) ^^ Turnbiill, 106 Fed. 667 (1901) ; Allman v. Gann, 29 Ala 240 
 (1856) ; McCue v Tunstead, 65 Cal. 506, 4 Pac. 510 (1884) ; Kirksey v. Rowe. 
 114 Oa. 893, 40 S. E. 990, 88 Am. St. 65 (1902), work horse exempt. 
 
 46 — Civ. Proc.
 
 -22 EXECUTION 
 
 the plainiitTs is. dial on luMh these jjrounds a portion at least of 
 the property was exempt from attachment ; and that the defendant 
 is hahle in this action for the wronj^ful act of his deputy in making 
 such attachment. 
 
 This claim, then, raises the question whether the exemption of 
 certain property from attachment, provided for in the General Stat- 
 utes, chapter 133, section 32, clause 5, 6 and chapter 123, section 32, 
 applies to the case of property belonging jointly to two or more co- 
 partners. It does not api)car that, at the time of the attachment, the 
 plaintilYs had dissolved partnership, or had divided their joint prop- 
 erty, or had had a general settlement and winding up of their busi- 
 ness. We agree with the plaintiffs' counsel, that the statute is 
 humane and beneficial in its purpose and operation, and fairly en- 
 titled to as liberal a construction as can be given it, consistently with 
 its true and just interpretation. There are many difficulties, however, 
 in the way of applying it to the case of copartners and joint owners, 
 and these difficulties we find to be insuperable. Property purchased 
 with the joint funds of the firm, and constituting a portion of its 
 capital, must necessarily be subject to all the incidents of partnership 
 property. On the decease of one member of the firm, it would go to 
 the surviving member, and he would have a right to hold it, to be 
 used in settling the affairs of the concern, and paying its debts. 
 In the case of numerous partners can it be said that each would have 
 the right to claim, as exempt from attachment for the joint debts, 
 one hundred dollars' w^orth of tools and implements, and another 
 hundred dollars' w^orth of materials and stock ; or is the whole firm 
 to be considered as one debtor only? Does the exempted property 
 in that case belong to the partners jointly, or does each take a sepa- 
 rate share? It appears to us that tlie statute is intended to apply only 
 to the case of a single and individual debtor. The exemption which it 
 gives is strictly personal. The statute speaks in the singular number 
 throughout, unless possibly the clause as to fishermen (Gen. Stats., 
 chapter 133, section 32, clause 9) be an exception. Its apparent ob- 
 iect is to secure to the debtor the means of supporting himself and 
 his family, by following his trade or handicraft with tools belonging 
 to himself. It also provides that his family are to be secured in 
 the enjoyment of certain indispensable comforts and necessaries. 
 
 Compare Robert v. Adams, 38 Cal. 383, 99 Am. Dec. 413 (1869); Fowler v. 
 Gilmore, 30 Tex. 432 (1867); Brozvn v. Hoffmeister, 71 Mo. 411 (1880); 
 Equitable Life Assur. Sac. v. Goode, loi Iowa 160, 70 N. W. 113, 35 L- R- A. 
 690, 63 Am. St. 378 (1897) ; State v. St. Paul, in La. 71, 35 So. 389 (1903), 
 professional books; Patten v. Smith, 4 Conn. 450, 10 Am. Dec. 166 (1823) ; 
 Sallee v. Waters, 17 Ala. 482 (1850); Prather v. Bobo, 15 La. Ann. 524 
 (i860) ; Green v. Raymond, 58 Tex. 80, 44 Am. Rep. 601 (1882) ; Bliss v. Ved- 
 dcr, 34 Kans. 57, 7 Pac. 599, 55 Am. Rep. 237 (1885) ; Brummage v. Kenworthy, 
 27 Okla. 431, 112 Pac. 984, Ann. Cas. 1912C, 6o7n (1910) ; Hams v. Townlcy, 
 (Tex) 161 S. W. 5 (1913), printing press exempt. Contra: Buckingham v. 
 Billings, 13 Mass. 82 (1816) ; Spooner v. Fletcher, 3 Vt. 133. 21 Am. Dec. 579 
 (1830) ; Dan forth v. Woodward, 10 Pick. (Mass.) 423, 20 Am. Dec. 531 
 (1830) ; Oliver v. White, 18 S. Car. 235 (1882) ; Front.:; v. Dobson, 64 Miss. 631, 
 2 So. 75, 60 Am. Rep. 68 (1887). In Peevehouse v. Smith (Tex. Civ. App.), 152 
 S. W. 1 196 (1913), an automobile Vv^as held a "carriage" within an exemption 
 law allowing the head of a family one carriage or buggy.
 
 POND V. KIMBALL 723 
 
 out of his property. But property belonging to the firm can not be 
 said to belong to either partner as his separate property. He has no 
 exclusive interest in it. It belongs as much to his partner as it does 
 to him, and can not in whole or in part be appropriated (so long 
 as it remains undivided) to the benefit of his family. It may be 
 wholly contingent and uncertain whether any of it will belong to him 
 on the winding up of the business and the settlement of his account 
 with the firm. 
 
 The exemption, in our opinion, is several, and not joint. It 
 applies to the debtor in the singular number, and is personal and in- 
 dividual only. If he desires to form a partnership and combine his 
 means with those of one or more than one other person, he must 
 take the precaution to retain exclusive ownership of his tools and 
 implements, allowing the use of them to his associates, or he will lose 
 entirely the benefit of the statutory exemptions as to that kind of 
 property. 
 
 The result is, tliat the plaintiffs are not entitled to maintain their 
 action; the verdict must be set aside, and judgment entered for the 
 defendant.^^ 
 
 '^Accord: .Clecfp v. Houston, i Phila. (P a.') 352 (1852) ; Bonsall^ v.^omly 
 
 44 Pa. St. 442 (1863 ) ; GaylordTSon & Co. v. M. Imhoff & Co., 26 Ohfo^St. 317 
 20 Am. Kep. 702 (1875) ; State v. Spencer, 64 Mo. 355, 27 Am. Rep. 244 (1877) 
 Spiro V. Paxton, 3 Lea. (Tenn.) 75, 31 Am. Rep. 630 (1879) ; Love v. Blair 
 72 Ind. 281 (1880) ; Baker v. Sheehan, 29 Minn. 235, 12 N. W. 704 (1S82) 
 State V. Bowdcn, 18 Fla. 17 (1881) ; State v. Emmons, 99 Ind. 452 (1884) 
 Cowan v. Their Creditors, yj Cal. 403, 19 Pac. 755, 11 Am. St. 294 (1888) 
 Schlaphack v. Long, 90 Ala. 525, 8 So. 113 (1889); Ex parte Karish, 32 
 S. Car. 437, II S. E. 298, 17 Am. St. 865 (1889) ; Thurlow v. Warren, 82 
 Maine 164, 19 Atl. 158, 17 Am. St. 472 (1889) ; Fingerhnth v. Lachman, 37 111. 
 App. 489 (1890) ; State v. Pruitt, 65 Mo. App. 154 (1895) ; Green v. Taylor, 
 98 Ky. 330, 32 S. W. 945, 17 Ky. Law Rep. 897, 56 Am. St. 375 (1895); 
 In re Spits, 8 N. Mex. 622, 45 Pac. 1122, 34 L. R. A. 604 (1896) ; Bateman v. 
 Edgcrly, 69 N. H. 244, 45 Atl. 95, 76 Am. St. 162 (1897) ; Gazette Pub. Cp- V. 
 McMurtrie. 7 Pa. Super Ct. 6 17 (1898). Contra: Stczvart v. Brown, 2,7 iSl. V. 
 350, 93 Am. Dec. 578 (1867) ; Radcliff v. Wood, 25 Barb. (N. Y.) 52 (1857) ; 
 McCoy V. Brennan, 61 Mich. 362, 28 N. W. 129, i Am. St. 589 (1886); 
 Blanchard, Williams & Co. v. Pascal, 68 Ga. 32, 45 Am. Rep. 474 (1881) ; 
 St. Louis Type Foundry v. International Live-Stock Journal Printing &c. Co., 
 74 Tex. 651, 12 S. W. 842, 15 Am. St. 870 (1889), and contra, if other partners 
 consent, Burns & Smucker v. Harris, 67 N. Car. 140 (1872) ; O'Gorman v. 
 Fink, 57 Wis. 649, 15 N. W. 771, 46 Am. Rep. 58 (1883) ; Richardson v. Redd, 
 118 N. Car. 677, 24 S. E. 420 (1896) ; In re Scabolt, 113 Fed. 766 (1902), 
 or there is a severance of interest, Goudy v. Werbe, 117 Ind. 154, 19 N. E. 764, 
 3 L. R. A. 114 (1888) ; Lee v. Bradley Fertilizer Co., 44 Fla. 787, 3;^ So. 456 
 (1902). 
 
 In some cases a distinction is made in favor of claims out of partnership 
 property when the execution is against one of the firm for his individual debt. 
 Moyer v. Drummond, 32 S. Car. 165, 10 S. E. 952, 7 L. R. A. 747, 17 Am. St. 
 850 (1889) ; Dennis v. Kass & Co., 11 Wash. 353, 39 Pac. 656, 48 Am. St. 880 
 (1895) ; Southern Jellico Coal Co. v. Smith, 20 Ky. L. 1594, 105 Ky. 769, 
 49 S. W. 807 (1899). Contra: State v. Boivden, 18 Fla. 17 (1881) ; IVills v. 
 Downs, 38 111. App. 269 (1890) ; Porch v. Arkansas Milling Co., 65 Ark. 40, 
 
 45 S. W. 51, 67 Am. St. 895 (1898). 
 
 In Heckle v. Grewe, 125 III. 58, 17 N. E. 437, 8 Am. St. 332 (1S88), it is 
 held that the interest of a tenant in common in personal property "stands on 
 the same footing, in respect to exemption laws, as like interests in other 
 property where the possession as well as the title is several." Accord : Scrvanfi 
 v. Lusk, 43 Cal. 238 (1872) ; Nezvion v. Howe, 29 Wis. 531, 9 Am. Rep. 616
 
 7-4 
 
 EXF.CUTION 
 
 FROST i: SHAW 
 
 Supreme Court of Ohio. 1854 
 3 Ohio St. 270 
 
 Trespass bv the plnintilT in error for the recovery of damages, 
 lor the levy and sale by execution, of certain chattels, consisting of 
 one yoke of work cattle, one ox-yoke with the bows and irons, six 
 sheep, and one cow, which he claimed to be exempted by law from 
 seizure on execution. The plaintiff being indebted to Vangordcr & 
 Canfield in the sum of $68.83 gave them a promissory note for that 
 amount, and, as security, a chattel mortgage of the property above, 
 with tlie exception of the ox-yoke with the bows and irons. Van- 
 gorder & Canfield obtained judgment on the note and the defend- 
 ant Shaw^ as constable, by direction of Birchard, the agent of the 
 plaintiff's in the execution, levied on and sold said chattels. On the 
 trial of the case in the court of common pleas there was a verdict 
 and judgment for defendants. Plaintiff brought error. ^ 
 
 Bartley, J.: Although the humane provisions of the law ex- 
 empting certain articles of necessity from execution for the pay- 
 ment of debts, may be entitled to a liberal construction, the settled 
 principles which govern the right of private property, are not to 
 be overlooked. The owner of the chattels exempted from execution, 
 is not divested of the right of disposing of property himself, either 
 by sale, or by pledge in security of the payment of his debts. And 
 in case of a pledge or chattel mortgage, the owner clearly waives 
 the benefit of the exemption, so far as the encumbrance extends, or 
 is operative.^ 
 
 But it is urged, with much force and ingenuity, by the counsel 
 for the plaintiff, that the seizure and sale, on execution, of one of 
 the chattels, consisting of an ox-yoke with its appendages, which 
 was not covered by the mortgage, sustained the action ; and that the 
 court of common pleas erred in the charge to the jury, in_ reference 
 to this article. The statute authorizes a person of a family, "if he 
 be engaged at tlie time in the business of agriculture, to select one 
 work horse, or mare, or one yoke of work oxen, with the necessary 
 gearing for the same," which he may hold exempt from execution 
 or sale by debt. Swan's Rev. Stat., page 710. We are saved the 
 
 (1872) ; Rutledge v. Rutledge, 8 Baxt. (Tenn.) 33 (1874) ; Sierman v. Hann 
 160 Iowa 356, 141 N. W. 934 (1913)- Compare Wright v. Pratt, 31 Wis 99 
 (1872). In Hniidryv. Ham pton. i6o Pa. St.,A8^8 Atl. 471 (1894), it is held 
 that the joint owners of a certificate of stock pledged for a joint debt could not 
 claim their exemptions out of the proceeds of a sheriff's sale of the stock. 
 And in Sharpe v. Baker, 51 Ind. App. 547, 99 N. E. 44 (1912), a tenant by en- 
 tirety was held not entitled to cla^im an exemption out of the joint property. 
 
 *The statement of facts is abridged and part of the opinion omitted. 
 
 'Accord: Harvey v. Ford, 83 Mich. 506, 47 N. W. 242 (1890) ; Rogers \. 
 Raynor, 102 Mich. 473, 60 N. W. 980 (1894) ; Hawley v. Hampton, 160 Pa. St. 
 18 28 Atl. 471 (1894) ; Monroe v. Button, 20 N. Y. Misc. 494, 46 N. Y. S. 637 
 (iPf)7) ■ Grovcr v. Yoimie, no Iowa 446, 81 N. W. 684 (1900). But only as 
 to the holder of this lien. McComb v. Watt, 39 Okla. 412, 135 Pac. 361 (1913)-
 
 FROST V. SHAW 725 
 
 necessity of considering the question whether the "necessary gear- 
 ing" could be held exempt from execution, when the debtor had 
 parted with the oxen, by the fact that it does not appear in this case, 
 that the plaintiff had laid any foundation, by proof, for his right to 
 the benefit of the exemption, as to this article, which, by the terms 
 of the law, depended on his selection of it, as necessary for carrying 
 on his business of agriculture. There are certain enumerated arti- 
 cles, which are absolutely exempted from execution, and which the 
 officer is bound, at his peril, to notice, and not take on execution, 
 tuiless turned ovit to him, by the debtor waiving his right to the 
 exemption. But there are other articles, including that now in ques- 
 tion, the exemption of which from execution, by the terms of the 
 lav/, depends on the selection to be made by the debtor. This selec- 
 tion should be made by the debtor at the time of the levy, if he be 
 present ; but if not present, he should make the selection and notify 
 the officer of the same, within a reasonable time thereafter, and be- 
 fore tlie sale. Without such selection, the right to the benefit of the 
 exemption does not exist as to those articles, which the statute 
 authorized the debtor to select, and when no such selection has been 
 made, it is the duty of the officer to proceed to levy on, and sell the 
 property. The plaintiff, therefore, having failed to show that he had 
 selected this article to be held as necessary to his business, failed to 
 establish his right to the exemption, and, consequently, his right to 
 maintain an action for the taking and sale' of the article on execu- 
 tion.^ 
 
 Judgment affirmed. 
 
 ^Where articles are specifically exempt by statute, or where the debtor's 
 property amounts to no more than the exemption allowed, the following cases 
 hold that the officer must assume that an exemption is claimed ahhough there 
 may have been no affirmative act on the debtor's part. State v. Haggard, 
 I Humph. (Tenn.) 390 (1839); Elliott v. Whitcmore, 5 Mich. 532 (1858); 
 Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. 219 (i8s9) ; Cole v. Green, 
 21 111. 104 (1859) ; U'yckoff V. IFyllis, 8 Mich. 48 (i860) ; Lynd v. Pickett, 
 7 Minn. (Gil. 128) 184, 82 Am. Dec. 79 (1862) ; Mantian v. Mcrritt, 93 Mass. 
 (II Allen) 582 (1866) ; Frost v. Mott, 34 N. Y. 253 (1866) ; Woods v. Keyes, 
 96 Mass. 236, 92 Am. Dec. 765 (1867) ; Perry v. Leivis, 49 Miss. 443 (1873) ; 
 Wallace v. Laivyer, 54 Ind. 501, 23 Am. Rep. 661 (1876) ; Shear v. Reynolds, 
 90 111. 238 (1S78) ; Murphy v. Sherman, 25 Minn. 196 (1878) ; Seip v. Tilgh- 
 man, 23 Kans. 289 (1880) ; Parsons V. Thomas, 62 Iowa 319, 17 N. W. 526 
 (1883) ; Harrington v. Smith, 14 Colo. 376, 22, Pac. 331, 20 Am. St. 272 (1890) ; 
 Grieb V. Northrup, 66 App. Div. 86, 72 N. Y. S. 481 (1901) ; Skinner v. Jen- 
 nings, 137 Ala. 29s, 34 So. 622 (1902) ; Sandcrhcrg v. Borstadt, 48 Colo. 96, 109 
 Pac. 419 (1910). Contra: Twinam v. Sivart, 4 Lans. (N. Y.) 263 (1871) ; 
 Gilezncs v. Goldberg, 69 App. Div. 438, 74 N. Y. S. 984, 10 N. Y. Ann. Cas. 
 393 (1902) ; Thompson v. Peterson, 122 Minn. 228, 142 N. W. 307 (1913). 
 But, generally, the exemption is regarded as a personal privilege to which the 
 debtor must lay claim within the time and in the manner provided by law or 
 established by practice. Gresham v. Walker, 10 Ala. 370 (1846) ; Weaver's 
 Appeal, 18 Pa. St. 307 (1852); trammer v. Freese. 19 Pa. St. 2^=; (1852); 
 Dichl V. Ho l ben, ;>,Q Pa. St. 213 Li S5i ) : Borland v. O Ncal, 22 Cal. 504 (1863) ; 
 i ^qj^ V. 57rmm a w, 52 Pa. StT"^3 (1866) ; Osborne V. Sclniit, 67 Mo. 712 
 (187STT State v7 Bouldcn, 57 Md! 314 (1881) ; Green v. Blunt, 59 Iowa 79, 
 12 N. W. 762 (1882) ; Barton v. Brozvn, 68 Cal. 11 (1885) ; Sctths v. Bond, 
 49 Ark. 114, 4 S. W. 286 (1886) ; Stewart's Abtyeal. 20 W. N. Cas. (Pa .) 11 1 
 (18S7); lYill ia ptson y. KriimbhaarT 12,2 Pa. St. 45 5, 19 Atl. 281 (1890); 
 Stanton v. FTencli, b3 Cal. 194, 23 i'ac. 355 {liigo) ; Pirie v. Harkness, 3
 
 7^6 EXECUTION 
 
 MEGEHE z>. DRAPER 
 
 Supreme Court of Missouri, 1855 
 21 Mo. 510 
 
 Ryland, J. : The defendant, Drainer, caused the plaintiff's prop- 
 erty to be levied ujion under and by virtue of an execution. The 
 plaintilT claimed the property, to the value of $150, as exempt from 
 execution, under the act of the legislature of February 6, 1847, ^^^^ 
 tlie property was duly appraised. The defendant afterwards caused 
 the property to be sold under the execution, and this suit is brought 
 for tliat wrong. The defense relied upon is, that the plaintiff, at 
 the time, had other property not specifically exempt from execution, 
 more than sufficient in value to pay the debt, which he concealed 
 from the officer, so as to keep it out of the reach of the execution. 
 Upon tlie plaintiff's motion, this part of the defendant's answer was 
 stricken out, and the defendant excepted. Upon the trial, the defend- 
 ant offered to prove the same matters before the jury; which proof 
 was rejected, and the defendant excepted. There was a verdict for 
 the plaintiff, and judgment thereon. The defendant moved for a new 
 trial, which was refused, and he brings the case here by appeal. 
 
 The only matter for our consideration involves the act of the 
 court below in rejecting the evidence on the trial, and in striking 
 out the answer, or that part of the answer setting up the above mat- 
 ters in defense. If the court properly struck out that part of the 
 answer, then it was proper also to reject the evidence in relation to 
 the same subject matter. 
 
 This court is of opinion that the matter set up in the defendant's 
 answer was well stricken out. It affords no defense to the plaintiff's 
 action. The statutes reserving and exempting certain specific prop- 
 erty from execution, and property real, personal and mixed from 
 execution, to a certain amount in value, were not made alone for the 
 benefit of the debtor. He must be the head of a family. The legisla- 
 ture had an eye to the family of the debtor, to his household, and 
 determined to prevent as much suffering and misery from entering 
 
 S. Dak. 178, 52 N. W. 581 (1892) ; Wagner v. Barden, 13 Ind. App. 571, 41 
 N. E. 1067 (1895); Scanlan v. Guiling, 63 Ark. 540, 39 S. W. 713 (1897); 
 Hartvwn v. Wood, 57 App. Div. 23, 67 N. Y. S. 1046 (1901); Johnson v. 
 Larcade, no 111. App. 611 (1903) ; In re Moss v. Light fine, 60 Misc. (N. Y.) 
 62 (1908) ; United States Fidelity Co. v. Hollenshead, 51 Wash. 326, 98 Pac. 
 749 (1909). And this rule is especially applicable where the debtor must 
 select from a number of articles those that he claims as exempt. In Btizsell 
 V. Hardy, 58 N. H. 331 (1878), trespass was brought against an officer for 
 taking a pair of oxen and a cow claimed under the exemption law. At the 
 time of attachment the plaintiff had two cows, a pair of oxen and a horse. 
 Said the court : "Either the oxen or the horse were exempt but not both. 
 One of the two cows was exempt but not both. If he had made such a claim, 
 the officer might have attached the horse and the other cow." Accord : Sum- 
 ner v. BroTun, 34 Vt. 194 (1861) ; Bzitt v. Green, 29 Ohio St. 667 (1876) ; 
 Nash V. Farrington, 86 Mass. (4 Allen) 157 (1862); Savage v. Davis, 134 
 Mass. 401 (1883). Cf. Copp v. Williams, 135 Mass. 401 (1883). 
 
 i
 
 MEGEHE V. DRAPER y2y 
 
 into such abodes as they could, by saving to them the small allowance 
 mentioned in the statutes. These statutes, so productive of good to 
 the classes which generally so much need protection, deserve and 
 meet with liberal interpretation from the courts. 
 
 It would at once destroy all the intended benefit of these stat- 
 utes, to suffer such a defense to be set up against those claiming 
 the protection under them. If the defendant in the execution, who 
 claims the property to be exempt, has concealed and hid, or placed 
 be3''ond the immediate reach of the officers of justice, his property, 
 and this fact be known to the plaintiffs in the execution, let them 
 ferret out the hidden property and take steps to reach it, and sub- 
 ject it to the process of the law. The burden should be on their 
 shoulders. If the plaintiff here in the execution asserts that the 
 defendant has concealed his property, let him search out the prop- 
 erty with his writ of execution. He can garnishee under execution 
 the person in w-hose possession the property is supposed to be. 
 Let him take this course. He has no right by act to destroy the 
 obvious intention of the statute in favor of the helpless and needy, 
 when he can so easily, by garnisheeing, reach the hidden or con- 
 cealed property. It will not do to say that he can not find it, or does 
 not know where it is. He charges that the defendant has concealed 
 it ; then the law gives him means to pursue it. Let it once be under- 
 stood that such an allegation in a defendant's answer, in cases like 
 the present, v/ill be availing, and you might as well strike the whole 
 provision exempting property from execution from the statute book.* 
 
 Judgment affirmed. 
 
 *Accord: Callozvay v. Carpenter, lo Ala. 500 (1846) ; Wilcox v. Hawley, 
 31 N. Y. 648 (1864) ; Mannan v. Merritt, 93 Mass. 582 (i865) ; Moseley v. 
 Anderson, 40 Miss. 49 (1866) ; Crmnmcn v. Bcnnct, 68 N. Car. 494 (1873); 
 Diivall v. Rollins, yi N. Car. 218 (1874) ; Caster v. Hardie, 75 N. Car. 460 
 (1876) ; Ketchum v. Allen, 46 Conn. 414 (1878) ; Bell v. Dcvore, 96 111. 217 
 (1880) ; Bald-win v. Talhot, 43 Mich. 11, 4 N. W. 547 (1880) ; Elder v. Wil- 
 liams, 16 Nev. 416 (1882) ; Bates v. Callendcr, 3 Dak. 256, 16 N. W. 506 
 (1883) ; Admondson v. Ryan, iii 111. 506 (1885) ; Comstock v. Bechtel, 63 
 Wis. 656, 24 N. W. 465 (1885) ; Over v. Shannon, 91 Ind. 99 (1883) ; Sannoner 
 V. King, 49 Ark. 299, 5 S. W. 327, 4 Am. St. 49 (1887) ; Freehling v. Bres- 
 nahan, 61 Mich. ^40, I Am. St. 617 (1886) ; King v. Hartcr, 70 Tex. S79, 
 8 S. W. 308 (1888) ; State v. Carson, 27 Nebr. 501, 43 N. W. 361, 9 L. R. A. 
 523, 20 Am. St. 681 (1889) ; Dohcrty v. Ramsey, i Ind. App. 530, 27 N. E. 879, 
 50 Am. St. 223 (1891) ; Pinkus v. Bamberger, 99 Ala. 266, 13 So. 578 (1892) ; 
 Noyes v. B elding, 5 S. Dak. 603, 59 N. W. 1069 (1894) ; Wagner v. /. H. North 
 Furniture & Carpet Co., 63 Mo. App. 206 (1895) ; Boylston v. Rankin, 114 
 Ala. 408, 21 So. 995, 62 Am. St. iii (1896). Compare State v. Freeman, 
 173 Mo. App. 294, 158 S. W. 726 (1913). The debtor may by his conduct 
 estop himself from claiming particular property. Cassell v. JJ'illiatns, 12 111. 
 387 (1851); Stevenson v. White, 5 Allen (Mass.) 148 (1862); Currier v. 
 Sutherland, 54 N. H. 475, 20 Am. Rep. 143 (1874) ; Rose v. Sharpless, 33 
 Grat. (Va.) 153 (1880); State v. Koch, 40 Mo. App. 635 (1890); Bolin v. 
 Weeks, 50 111. App. 236 (1893). 
 
 A doctrine contrary to the principal case prevails elsewhere which is 
 stated as follows in Stronse v. Becker, 38 Pa. St. 190, 80 Am. Dec. 474 (1861), 
 bj'- Woodward, J. : "When an officer comes Avith an execution, it is the duty 
 of the debtor, as a good citizen, if he can not pay the debt, to facilitate the 
 making a levy. He should exhibit his property honestly, and claim only the 
 exemption which the law allows him. It is a hard thing, doubtless, to be 
 strictly honest in such an emergency, but it Is best, after all, even for the
 
 7-S KXr.CUTION 
 
 SECTION 6. CLAIMS BY STRANGERS TO THE WRIT 
 MILLMR i: THE COMMONWEALTH 
 SuPREME_CoyRXjQFL Pennsylvania.^j S^? 
 
 5 ^fl. i294 
 
 In error from the Common Pleas of Clinton. This was an 
 action of debt against the sheriff and his sureties on an official bond. 
 The plaintiff proved a judgment against Harvey and Fleming; a 
 fieri facias and return of "levied on a horse, wagon, sleigh and 
 clock." He then proved that prior to the delivery of the writ, he 
 had called on the sheriff to make a levy on some lumber of the 
 defendants, and informed him that it was claimed by a stranger, 
 but that he might go on and plaintiff would give a bond of indem- 
 nity at any time before the day of sale. The sheriff was satisfied, 
 and did not require a bond at that time. He then gave evidence 
 that the lumber in their possession belonged to defendants in the 
 execution. The defendants then offered in evidence the venditioni 
 and al. vend, at the terms succeeding the fieri facias, to the first of 
 v^-hich there was a return — that the property mentioned in the writ 
 being claimed by third persons, and plaintiff having promised to 
 indemnify, and having neglected so to do, he had refused to sell. To 
 
 debtor himself. If his property be taken, his self-respect and conscious integ- 
 rity are left, and he has gained a moral discipHne \vhich will go far toward 
 |repairing his fortunes. But if he equivocate and dissemble — denies his owner- 
 Iship of that which he can not hide, and embarrasses the officer of the law in 
 the execution of legal duties, he forfeits not only his self-respect, but his hold 
 upon the exemption provided for honest debtors. And it is reasonable that he 
 should ; for what right has he to expose the officer to the peril of a suit for 
 levying on the goods of a pretended owner, or, on the other hand, of incurring 
 liabilities to the plaintiff for neglect of diUy? If, to escape from the dilemma 
 in which the sheriff or constable finds himself placed, he obtains indemnity 
 from the plaintiff, this is an inconvenience and a delay such as a debtor has 
 no right to cause, and then turn around and show by his admission of title 
 and claim of exemption, that it was needless and vexatious. In a word, the 
 ' law would have all men honest and sincere. To debtors who are so, it leaves 
 I $300 worth of property — to those who are not it offers no reward." Accord : 
 In re_HucyLs__Ap,^cqi^2CiV^ 219 (1857); Emersonjy^miJh,sj^ Pa. St. 90, 
 88~Am. Dec. 566 (1865) ; Carl v. Si7iith, 8 PliITaT Ren. (Pa.J 5^9 (iSji^T^n re 
 I mhoff's A Pinea l. 119 Pa. "St. 350, 13 AtX 279 (1888) ; Moore y, Baker, 2 Pa. 
 DisL^. 142 (1892) ; flrank v. Kurt.-^^./] P n. 5; iippr. Ct 233 (1897) ; Riley V. 
 Opde n, 185 Pa. St. 5^0 6, 40 Atl. 76 (1898) ; Brackett v. Watkins, 2i~Wend. 
 ( i\' . V . ) 68 "t 1839) -rSanborn v. Hamilton, 18 Vt. 590 (1846); Mandlove v. 
 Burton, i Ind. 39 (1848); McNally v. Mulherin, 79 Ga. 614, 4 S. E. 332 
 (1887); McWilliams v. Bones, 84 Ga. 199, 10 S. E. 723 (1889); Hoover v. 
 Haslage, 5 Ohio N. P. 90 (1897) ; Farwell Co. v. Patterson, 76 111. App. 6or 
 (1898) ; In re Yost, 117 Fed. 792 (1902) ; Wun derly v. LeopojdjJi2_Pa^uper. 
 Ct^3i_(i9ij). 
 
 Tri a number of states the debtor in special cases may have a stay of 
 execution for a prescribed period upon giving security. The statutes differ 
 widely in the various jurisdictions. See Herman on Executions, § 392; 
 17 Cyc. 1 139; 7 A. & E. Encyc. of Law (ist ed.) 146.
 
 MILLER V. COMMONWEALTH 729 
 
 the alias the return was — that he had made diligent search for the 
 property mentioned in the writ, and could find no part of it in his 
 bailiwick; all of which were rejected by the court. The defendants 
 then gave evidence that the lumber was not the property of the de- 
 fendants in the execution ; and they further offered evidence of the 
 same character as to the property levied on, which was rejected. 
 
 The court (Woodward, P. J.) after leaving it to the jury to 
 decide whether this was a case for requiring indemnity, said: The 
 conversation respecting indemnity seems to have regarded the lum- 
 ber, as that alone was in dispute. If the sheriff waived indemnity 
 on an agreement by plaintiff to furnish it when required, it was his 
 duty to go and make a levy, and he might have required indemnity 
 before the sale. If they parted on that understanding, the plaintiff's 
 failure to tender it did not excuse the sheriff. This, however, would 
 not give a right of action to the plaintiff' if the property did not 
 belong to the defendants in the execution, and the question whether 
 the lumber was liable to the execution was left to the jury. But as to 
 the property actually levied on, the question of ownership was im- 
 m.aterial, for that was in the custody of the law, and the sheriff was 
 bound to make some disposition of it unless the plaintiff refused to 
 indemnify him, and then he should have refurned that fact, as an 
 excuse for not selling. 
 
 The rejection of the evidence, and the charge "as to the indem- 
 nity, and that the ownership was immiaterial," were the errors 
 assigned.^ 
 
 Coulter, J. : The rule is, that a sheriff must execute a writ of 
 fieri facias at his peril. And in England it seems to be well set- 
 tled that he can not contradict his return for the purpose of reliev- 
 ing himself from the liability which the return imposes. Thus, 
 where he returns — goods levied, with a schedule — he assumes the 
 responsibility that they belong to the defendant, and he will after- 
 wards, as a general rule, be estopped from denying that they were 
 such. It may in some cases be hard, but considerations of public 
 policy outweigh and countervail all tenderness of that kind. The 
 danger of collusion between the officers and the defendant for the 
 purpose of defeating an honest creditor, marks the wisdom of the 
 rule. Otherwise, a sheriff could return — levied on the goods of 
 the defendant — and thus satisfy the judgment pro tanto, and upon 
 a suit on his bond, call the defendant as a witness to establish that 
 the goods were not his, under some colorable and fraudulent trans- 
 fer, made for the purpose of defeating the creditor, and thereby 
 hinder and delay creditors and involve them in embarrassing law- 
 suits. 
 
 The sheriff has the remedy in his own hands. If a claim is 
 set up to the property ostensibly belonging to the defendant and in 
 his possession, which would make a reasonable man pause and 
 doubt, he may in England summon a jury to try the right, and tliis 
 
 "The arguments of counsel and part of the opinion are omitted. The case 
 i<; at common law, prior to the Interpleader Act of 1848, see note, post page 734.
 
 /o' 
 
 ?0 EXECUTION 
 
 would protect him. as is said in 3 F.ac. Ahr. Slicriff, N. 6, scl 
 qucrc?* or he may apply to the court to cnlarj:^c the time of makinr; 
 his return until an indemnity has been given to him; i Taunton, 
 120. Although that proceeding has not been adopted here, a remedy 
 equally efficacious is at hand. He is authorized in such circum- 
 stance's of reasonable doubt, when the property is claimed by a 
 stranger, to demand indenmity from the plaintiff, and if he refuse 
 to give it, the officer may refuse to levy and sell, and make a special 
 return to the court. i6"Serg. & R. (Pa.) 68. But when, regardless 
 of these safeguards, the sheriff chooses to return a levy, it is at his 
 own peril, because the judgment creditor is thereby estopped and 
 hindered, and may be deprived of his right, unless the sheriff be 
 responsible for his own official act. In the whole range pf English 
 decisions, there is perhaps but one exception; and that is where a 
 levy is returned on the goods of a person who is afterwards de- 
 clared a bankrupt, but the act of bankruptcy was committed before 
 levy. In such a case the assignee in bankruptcy is entitled to the 
 goods, and the sheriff being ignorant of the act of banlcruptcy at 
 the time of tlie levy and return, is relieved from its force and the 
 liability it creates. 6 Maule & Selw. 42. But this exception to the 
 general rule seems to be founded on the peculiar policy of the bank- 
 rupt system ; a cherished policy in England, and which overrides 
 other rules for the purpose of giving efficacy to its peculiar feature — 
 an equilibrium among creditors at the date of the act of bankruptcy. 
 If the goods are eloigned or rescued, the sheriff is liable. 2 Saund. 
 343. And the English courts will only interfere to relieve a sheriff 
 from the dilemma of an adverse claim by extending the time for 
 making his return, at their discretion, and upon such terms as they 
 think right. 4 Taimt. 585; i Taunt. 120.^ In New York it has been 
 ruled that it is the duty of the sheriff to sell the goods seized, and 
 which are claimed by a stranger, unless they are proved before an 
 inquest which the sheriff has authority to impanel, not to be the 
 goods of the defendant. In that case he may return nulla bona ; but 
 even on inquest found, if the plaintiff gives him indemnity, he is 
 
 'The sheriff could summon a jury to inquire as to the fact of ownership, 
 Farr v. Newman, 4 T. R. 621 (1792), at p. 633; Roberts v. Thomas, 6 T. R. 88 
 (1794); Bayley v. Bates, 8 Johns. (N. Y.) 185 (1811) ; Philips v. Harriss, 
 3 J. J. Mar. (Ky.) 122 (1829), but the findings of the jury were not con- 
 clusive, Latkow v. Earner, 2 H. Bl. 437 (i795) ; Glossop v. 'Pole, 3 M. & S. 
 175 (1814) ; Chinn v. Russell, 2 Blackf. (Ind.) 172 (1828) ; Cassell v. Wil- 
 liams, 12 111. 387 (1851) ; Roii-e v. Bowen, 28 111. 116 (1862) ; Cohen v. Climax 
 Cycle Co., 19 App. Div. 158, 46 N. Y. S. 4, 4 Ann. Cas. 332 (1897). 
 
 "While the sheriff could apply to the court for further time to make 
 his return, so that during the interval the question of property might be 
 settled or one or the other of the parties interested might indemnify him 
 against either proceeding with the levy or making a return of nulla bona, 
 Watson on Sheriffs, 195; Murfree on Sheriffs, § 581, it was wholly dis- 
 cretionary with the court whether it would interfere at all or upon what terms 
 it would do so. See Wells v. Pickman, 7 T. R. 174 (i797) ; King v. Bridges, 
 7 Taunt. 294 (1817) ; V enables v. Wilks, 4 Moore 339 (1820); Etchclls v. 
 Lorait, 9 Price 54 (1821) ; Ledbury v. Smith, i Chitty 294 (1819) ; Burr v. 
 Freethy, i Bingh. 71 (1822) ; Robey v. State, 94 Md. 61, 50 Atl. 411, 89 Am. 
 St. 405 (1901).
 
 MILLER V. COMMONV/EALTH 731 
 
 bound to proceed. 8 Johns. (N. Y.) 185.^ The rights of judgment 
 creditors can not be disregarded. A judgment would be of Httle 
 value if it could be hindered in execution by frivolous pretenses, and 
 sham and fraudulent transfers of property. The sheriff is bound to 
 execute his writ, saving only when he adopts the means furnished for 
 his security, and which do not injure or defeat the creditor. But if 
 he goes on to execution without resort to these, seizes goods, and 
 makes return of record so as to render the judgment extinct pro 
 tanto, and defeat and delay its further execution, to the manifest 
 injury of the plaintiff, he does so at his own peril, and every consid- 
 eration of public policy requires that he should be held accountable. 
 In Hall V. Ga/&rai/A, 8^ Watts_X£a-)^20^it v;as ruled by this court 
 thataTconstabTe who has reason to doubt the ownership of goods, may 
 require the plaintiff to indemnify him, and if he refuses to sell, not 
 having done so, he becomes liable. The discriminating and accurate 
 judge who delivered the opinion in that case, assimilates the proceed- 
 ing to like transaction on the part of the sheriff, and fully sustains 
 the case in 16 Serg. & R., already referred to. It would seem, there- 
 fore, that in cases where a sheriff returns that he has levied the 
 goods of the defendant, he is to be bound by it.^ He ought to sell on 
 his fieri facias, but if he return the levy, the venditioni exponas may 
 be issued to compel him to sell, and bring him into contempt if he 
 does not. 
 
 The plaintiff stated that a brother of one of the defendants 
 claimed part of the lumber, but he should go on and make the levy, 
 
 ^Accord: Townsend v. Phillips, 10 Johns. (N. Y.) 98 (1813) ; Van Cleef 
 V. Fleet, 15 Johns. (N. Y.) 147 (1818) ; Piatt v. Sherrv, 7 Wend. (N. Y.) 236 
 (1831); Curtis V. Patterson, 8 Cow. (N. Y.) 65 (1827); Ball v. Pratt, 36 
 Barb. (N. Y.) 402 (1862) ; Cohen v. Climax Cycle Co., 19 App. Div. 158, 46 
 N. Y. S. 4, 4 N. Y. Ann. Cas. 332 (1897) ; N. Y._ Code Civ. Pro., §§ 1418-20. 
 If the undertaking is given the ofiBcer must detain the property as belonging 
 to the judgment debtor. 
 
 *In Dorin V McCandless, 146 Pa. St. 344. 2 3 Atl. 245, 28 Am. St. 798 
 (1891), the sheriff took possession of goods pointed out to him by the plain- 
 tiff as the property of the debtor, and, upon a claim by a third person, re- 
 linquished possession and returned the writ nulla bona without demanding 
 indemnit}-. In an action against him for failing to sell it was held error to 
 refuse to permit him to show that the goods belonged to the claimant. 
 Miller v. Commonwealth was distinguished on the ground that in that case 
 the sheriff had returned a levy and that he should not be allowed to con- 
 tradict his own return. The court says, per Paxson, C. J. : "The true 
 rule to be deduced from the authorities is this : that when the sheriff returns 
 an execution nulla bona, he does so at his own risk, and if it is shown that 
 there is property of the defendant which he might and ought to have levied 
 upon, he will be responsible. It is competent, however, for him to show that 
 the property pointed out to him was the property of a stranger. In other 
 words, he may show his return to be true, for if true, the plaintiff in the 
 execution has sustained no injury." See fur ther Com m.onwealth_w^_Vandykef 
 ^STjPa ^t. 34 (1868X : Smith V. Cicotte, iiTSIich. 383 (1863) ; Sage v. Dickinson, 
 ~33 Grat. (Va.) 361 (1880) ; State v. Langdon, 57 Mo. 353 (1874) ; Hamhlct 
 V. Herndon, 3 Humph. (Tenn.) 34 (1842) ; Adams v. Disston, 44 N. J. L. 662 
 (1882). As to the constitutionality of a statute restricting a claimant to an 
 action on the bond see Fonlc v. Mann, 53 Iowa 42, 3 N. W. 814 (1879); 
 Cheadle v. Guitlar, 68 Iowa 680, 28 N. W. 14 (1886), and compare Harris v. 
 Krause, 60 N. J. L. 72, 37 Atl. 439 (1897).
 
 ~32 EXFXUTION 
 
 and they would then sec wlio owned tlic property ; that he would give 
 a hond of iiulcmnity before the sak% if rec|uired. The sheriff was sat- 
 isfied witli this arrangement, but never did levy on the lumber, and 
 never called upon or notihed the plaintiff, but made the levy on the 
 other property, and returned that levy. Evidence on both sides was 
 given as to the ownership of tliis lumber, and the transaction bears 
 strong impress of a fraudulent arrangement between the brother and 
 one of the defendants to cheat his creditors. The facts, however, 
 were fully submitted to the jury. But the court said that the testi- 
 mony given in relation to the indemnit}'' related to the lumber, as it 
 was only with regard to that, there was understood to be any dis- 
 pute. The learned judge tlien states the law correctly; that if the 
 sheriff had agreed to levy on the lumber, upon the condition that 
 Allison would indemnify him at any time afterwards before sale, 
 if required, and the sheriff neglected to make the levy, and never in- 
 formed the plaintiff", or called on him for indemnity, that the officer 
 was liable. In the case of the Coiiim^ijiS!£altA.-:^i^-dl'JltinQugh^_6 
 Whaj-t^ (Pa J 117, it was decided that the sheriff was not bound 
 knowingly and wilfully to levy on the property of a stranger even 
 before indemnity offered, but that where the plaintiff showed the 
 property and there was tolerable evidence of title, such as possession 
 in defendant, the sheriff w^as bound to levy upon it, being indemni- 
 fied, or answer in damages, and that in such case a stranger could not 
 maintain trespass without showing clearly and satisfactorily that 
 tlie property belonged to him. In the case at bar the jury determined 
 the property to be in defendant, and assessed damages accordingly. 
 Judgment affirmed.^" 
 
 "On a fieri facias at common law the sheriff was bound at his peril to 
 take only the goods of the defendant; and therefore, if he took the goods 
 of a stranger^ although the plaintiff declared they were the property of the 
 defendant, he was a trespasser, for he was "obliged at his peril to take notice 
 whose the goods are." Bacon's Abridgement, Execution (c) ; Sanderson v. 
 Baker, 2 Wm. Bl. 832 (1772) ; Ackworth v. Kempe, 4 Dougl. 40 (1778) ; 
 Glasspoole v. Young, 9 B. & C. 696 (1829). The following courses were open 
 to him: (i) To levy, sell and run the risk of a suit by the claimant. (2) To 
 return the writ nulla bona and run the risk of a suit by the plaintiff. (3) To 
 apply to the court for further time to make his return so that during the 
 interval one of the parties might indemnify him for either proceeding with 
 the levy or making a return nulla bona. (4) To summon a jury to satisfy 
 himself as to the fact of ownership, but such action was of little value, 
 since the verdict was not conclusive against the claimant, nor against the 
 plaintiff in execution, although in his case perhaps admissible in mitigation 
 of damages. See cases in note 6 supra. Tidd's Practice (1828) 1008. 
 
 In many of the American states there is a statutory proceeding, modelled 
 on the sheriff's inquest, for determining before sale the right of property in 
 chattels taken in execution. The state laws differ widely in their provisions. 
 In some the claimant is free to pursue his common-law remedies, in others 
 the judgment is conclusive, at least as to the sheriff's responsibility. Text 
 writers regard them as cumbersome and inadequate. Freeman on Executions 
 (3d ed.), § 277; Murfree on Sheriffs, § 584. Compare N. Y. Code Civ. Pro., 
 § 1418 et scq., and cases in note 8 supra with Comp. Stat. N. J. (1910), 
 Executions, § 34, and Harris v. Krause, 60 N. J. L. 72, 27 Atl. 439 (1897). 
 
 In Massachusetts it is provided: "If there is reasonable doubt as to 
 the ownership of the property, or as to its liability to be taken on execution, 
 the officer may require sufficient security of the creditor to indemnify him 
 for taking it." Rev. L. Mass. (1902), ch. 177, § 35. If the officer neither
 
 SLINGSBY v. BOULTON 733 
 
 SLINGSBY V. BOULTON 
 
 In Chancery Before Lord Eldon, 1813 
 I Ves. & B. 334 
 
 In 1812, the plaintiff, being sheriff of Yorkshire, received a writ 
 of fieri facias upon a judgment obtained by the defendant, Boulton, 
 against the other defendant, indorsed for £446. The plaintiff levied ; 
 but receiving notice, and a copy of a settlement of part of the goods, 
 he made no return; but afterwards paid in £329 2s., being the resi- 
 due of the levy after deducting the sum paid to the trustees of the 
 settlement ; who brought an action of trover against the plaintiff for 
 the goods in settlement ; and, tlie defendant, Boulton, also claiming, 
 the plaintiff filed a bill of interpleader; offering to bring the money 
 into court, if the court should be of opinion, that under the circum- 
 stances he ought to do so ; and moved for an injunction. 
 
 Mr. Barber, for the motion, admitted that this was a bill of inter- 
 pleader without bringing the money into court; but insisted that 
 under the circumstances of the case it was not necessary. 
 
 Mr. Johnson, for the defendant, resisted the motion, on the 
 ground that the interposition of this court to compel defendants to 
 interplead could not be obtained, when the fund was not deposited. 
 
 The Lord Chancellor: Is there any instance of a bill of inter- 
 pleader by the sheriff? He acts at his peril in selling the goods ; and 
 is concluded from stating a case of interpleader ; in which the plain- 
 tiff always admits a title against himself in all defendants. A person 
 can not file a bill of interpleader, who is obliged to put his case upon 
 this, that as to some of the defendants he is a wrongdoer.^^ 
 
 demands this nor asks specific directions, but assumes the responsibility of 
 executing his process in his own way, he can not require indemnity when 
 subsequently to his action controversy arises. Russell v. Walker, 150 Mass. 
 531 (1890). The laws of IHinois, Alaine, Michigan and Kansas are sub- 
 stantially the same as of Massachusetts. Murfree on Sheriffs, §§ 592, 593. 
 
 "Accord: Shaw v. Chester, 8 Paige Ch. 339 (1840), affirming 2 Edw. Ch. 
 405 (1834); Qidnn v. Green, 1 Ired. Eq. (N. Car.) 229 (1S40); Quinn v 
 Patton, 2 Ired. Eq. (N. Car.) 48 (1841) ; Parker v. Barker, 42 N. H 78 77 
 Am. Dec. 789 (i860) ; Rogers v. Weir, 34 N. Y. 463 (1866) semble; Dewey 
 V. White, 65 N. Car. 225 (1871) ; First Nat. Bank v. Bininger, 26 N. J. Eq. 
 345 (1875) ; Third Nat. Bank v. Skillings Lumber Co., 132 Mass. 410 (1882). 
 Cf. Starrs v. Payne, 4 Hen. & Munf. (Va.) 506 (1810) ; Nash v. Smith, 6 
 Conn. 421 (1827) ; Lawson v. Jordan, 19 Ark. 297, 70 Am. Dec. 596 (1858). 
 
 In England substantial relief was afforded to sheriffs by the Interpleader 
 Act of 1831 (I & 2 Will. IV 4, ch. 58, § 6), which provided that where claims 
 were made by persons, not parties, against whom the process issued, to any 
 goods or chattels taken or intended to be taken in execution, upon applica- 
 tion of the sheriff, or other officer, it should be lawful for the court from 
 which the process issued to call before them the party issuing the process 
 and the party making the claim and thereupon to exercise for the relief 
 of the sheriff the powers contained in the act, that is to compel the claimant 
 to appear and maintain or relinquish his claim, to order the trial of a feigned 
 issue, or, with the consent of the parties, to dispose of the merits of their 
 claims in a summary manner. The judgment in an interpleader proceeding 
 IS conclusive. Act of 23 & 24 Vict, (i860), ch. 126, § 17. The subject is now
 
 734 EXECUTION 
 
 DE COPPETT V. BARNETT 
 Court of Appkal, 1901 
 
 17 Times L. Rep. 273 
 
 This was an appeal from an order made by Mr. Justice Darling 
 at Chambers. The plaintiff, de Coppett, carried on business as a 
 lodging-house keeper in Clarges street, Piccadilly, and he had on 
 his premises tliirty-three cases of wine, which had been deposited 
 with him by one Captain Bell as security for an advance of money, 
 and which he had subsequently been authorized by Captain Bell to 
 sell in order to repay the debt. The defendant, Barnett, who was 
 
 povemcd by the Rules of the Supreme Court of Judicature. Act of 46 & /\,'7 
 Vict. (1883), ch. 49; Order LVII, rule I, "wliich provides: "Relief by way 
 of interpleader may be granted * * * where the applicant is a sheriff 
 or other officer charged with the execution of process by or under the 
 authority of the High Court, and any claim is made to any money, goods, or 
 chattels taken or intended to be taken in execution under anj^ process, or 
 the proceeds or value of an\' such goods or chattels, by any person other than 
 the person against whom the process issued." The sheriff, however, may 
 proceed with the execution if he thinks proper. Harrison V. Foster, 4 Dowl. 
 P. C. 588 (1836). See further Allen v. Gibbon, 2 Dowl. P. C. 292 (1833) ; 
 Holton V. Giintrip, 6 Dowl. P. C. 130 (1837) ; Claridge V. Collins, 7 Dowl. 698 
 (1839) ; ly inter V. Bartholomew, II Exch. 704 (1856) ; Richards v. Jenkins, 
 L. R. 18 Q. B. Div. 451 (1S86) ; Goodman v. Blake, L. R. 19 Q. B. 77 (188,7) : 
 Van Laun v. Baring, L. R. (1903) 2 K. B. 277; Cox v. Bowen, L. R. (1911) 
 2 K. B. 611. Generally, where the claimant does not enter security the court 
 orders the sale of the goods. Paquin v. Robinson, 85 L. T. 5 (1901) ; Discount 
 Banking Co. v. Lambarde, L. R. (1893) 2 Q. B. 329. 
 
 In Pennsylvania—the F.ngh'sh prnrpdnre-jauis__adopted, the Interpleader 
 'Act"of April TO, tS,i8, P. L. 448, § g, being almost a verbatim copy of the 
 Act of I & 2 Will. IV; Troubat and Haly's Practice (Wharton's ed.) 721. 
 The practice has been further defined by the A ct of May 26, 1897. P. L. 95, 
 P. & L. Dig. (2d ed.) 3439, which is a consolidation of the existmg statutory 
 law and in addition puts into statutory form the principal parts of 
 the practice already established by the decisions. When goods levied on are 
 claimed by a third person, the sheriff applies for a rule to show cause why 
 an issue should not be framed to determine the ownership. Berger & Wir t It 
 V. H. W. Jnerpen Sr Co.. 7 Fa. Super. Ct. 388 (1898) ; Barto n y Zlieynoid s, 
 17 Pa. Super. Ct. =^04 (looi ). If the rule is made absolute7 the claimant gives 
 bond to maintain his title and receives the goods, otherwise the court may 
 direct a sale. Blackstaff v. Dn Pont De Nemours Powder Co , 48 Pa. Sup er. 
 Ct. 470 (19 12). In the issue the claimant is the plaintiff and the other parties 
 defendants. Pro wst v. Alneo. 8 JPa. D.^^^jTjjSoo'). 
 
 Under the Act of 1848 the discharge of a rule for an interpleader did 
 not affect the claimant's rights, Bainj^Funk, 61 Pa. St 185 (1869). But 
 section 15 of the Act of 1S97 provides that if the^ieriff^cornplics with the 
 provisions of the act, "he shall be freed from all liability to the claimant, 
 the plaintiff and defendant in the execution, the person found in possession of 
 the goods and chattels levied on or seized, and every other person who had 
 knowledge of such levy or seizure prior to the sale of said goods and chattels, 
 or who shall take any step under the provisions of this act." As this deprives 
 the claimant of his right of action against the sheriff, he is a party aggrieved 
 by the discharge of a rule for an issue and may question the order. ' Book v . 
 Day. 180 Pa. St. 44. 41 Atl. 998 (1899). If the sheriff does not proceed 
 unrl'T the act he remains liable as formerly to plaintiff or the claimant. 
 ArrjV£ r v. Sedjjwick. ^6 Pa. Super. Ct. 593 (1908) . Where the sheriff in 
 making a levy is subjected to no risk, as in the case of a chattel real, he is 
 not entitled to an interpleader. Maurer v. Sheaf er, 116 Pa. 339, 9 Atl. 860 
 (1887). ^^^
 
 DE COPPETT V. BARNETT 735 
 
 a judgment creditor of Captain Bell and had obtained a writ of 
 fieri facias against him, went to the plaintiff's premises with an officer 
 of the sheriff of Middlesex named Mountjoy, and some other men, 
 and forcibly removed the wine. For this trespass the plaintiff 
 brought an action against Barnett, Mountjoy and Sir George Her- 
 bert, the sheriff. The question as to the right to the wine having 
 been brought before Mr. Justice Channel! on interpleader proceed- 
 ings, that learned judge directed that an interpleader issue should 
 be tried, and that no action should be brought or continued against 
 the sheriff pending the interpleader proceedings. The issue was tried 
 before Mr. Justice Darling, who decided the matter in favor of the 
 plaintiff, de Coppett, and directed that the action against the sheriff 
 should not be barred. The action thereupon continued, and after 
 various proceedings had been taken, the case again came before Mr. 
 Justice Darling on an appeal by the plaintiff from an order giving 
 the defendants further time for delivering their defense. The 
 learned judge dismissed the plaintiff's appeal, and added to the or- 
 der an expression of his opinion that there ought not to be an action 
 against the sheriff. From this order the plaintiff appealed. 
 
 Mr. Carrington appeared for the plaintiff, Mr, P. Rose-Innes 
 for the sheriff. 
 
 The Master of the Rolls^^ said there had clearly been a trespass 
 in this case, and the question was whether the plaintiff's action 
 against the sheriff ought to be barred. Mr. Rose-Innes had referred 
 to the case of Smith v. Critch field, 14 Q. B. Div. 873. That only 
 showed that a sheriff might be protected against an action for tres- 
 pass if no substantial grievance had been done to the person whose 
 premises were wrongfully entered. ^^ The evidence here showed 
 that the plaintiff had been disturbed in the enjoyment of the prem- 
 ises, and had suffered damage. In his opinion the order appealed 
 against was a remarkable order, and he thought that the clause ex- 
 pressing the learned judge's opinion that there ought to be no action 
 against the sheriff should be struck out. The plaintiff would, there- 
 fore, be at liberty to continue his action. 
 
 Lord Justice Romer concurred. 
 
 Appeal allowed. 
 
 "Sir A. L. Smith. 
 
 "Accord: Winter v. Bartholomew, il Exch. 704 (185-6), distinguishing 
 if not overruling H oilier v. Laurie, 3 C. B. 334 (1846) ; Smith v. Critch field, 
 L. R. 14 O. B. Div. 873 (i88s); London, Chatham &c. R. Co. v. Cable, 
 80 L. T. 119 (1899). See also Holt v. Frost, 3 H. & N. 821 (1858) ; Hooke 
 V. Ind, Coope & Co., 36 L. T. 467 (1877). 
 
 In Zachartas v Toiton, go Pa. St. 286 (1879 ). the sheriff, by direction of 
 the execution creditor and upon being indemnified, levied on goods in pos- 
 session of the claimant as the property of the execution debtor and after- 
 ward applied for and obtained an order for an interpleader. The trial of 
 the issue resulted in favor of the claimant and he took out of court the 
 proceeds of the sale of his goods. Thereafter he brought trespass de bonis 
 asportatis against the sheriff and the execution creditor. Held, reversing 
 judgment for the defendants that neither of them could justify under the 
 interpleader act for anything done prior to the inception of the proceedings 
 thereunder. But compare Act of 1897, supra. See also Walker v. Olding, 
 I H. & C. 621 (1862) ; Abbey v. Searls, 4 Ohio St. 598 (1855) ; Phillips v. 
 Reagan, 75 Pa. St. 381 (1874) ; Hibbard v Thrasher, 65 111. 479 (1872). ^
 
 730 EXECUTION 
 
 SECTION 7. THE SALE AND RETURN 
 
 THOMSON z: CLERK 
 
 Court of Qiteen's Bl.ncii, 1596 
 
 I Cro. Elh. 504 
 
 Trover and conversion of goods, at D. in comitat. Nott. The 
 <lefendant saith, that he recovered against the plaintiff a debt of £20 
 by bill in the Queen's Bench, and thereupon had a fieri facias, di- 
 rected to the sheriff of York, who, at Wakefield, in comitat. Eborum, 
 seized those goods, and delivered them unto him in satisfaction of 
 this execution; and so justifies the conversion. It was thereupon 
 demurred, and without argument ruled, that the pleading was ill. 
 Because^* . . . the sheriff upon a writ of fieri facias can not 
 deliver the defendant's goods to the plaintiff, in satisfaction of his 
 debt. Wherefore it was adjudged for the plaintiff.^^ 
 
 "Part of the judgment, on points of pleading, is omitted. 
 
 "Accord: Bcaly v. Smtif'son, 2 Vent. 93 (1689); Holm v. Hunter, 12 
 Mod. 494 (1609) ; Cargle v. Knox, 143 Ga. 597, 85 S. E. 764 (1915). Upon a 
 writ of fieri facias the goods must be sold and, in strictness, the money- 
 brought into court. Bacon's Abridgement, Executions (c) ; Clerk v. Withers, 
 I Salk. 2^2, 2 Ld. Raym. 1072 (1704) ; Leader v. Danvers, 1 Bos. & P. 359 
 (1798); Bcalc js Exrs. y. ConxmmiWi'JiIJ]L_JJL.SsxZ-^&-J^^L^i^^) 299 (1824); 
 CampheU'w. Cobb, 2 bneed (TenrO 18 (1854). But at the sale" the judgment 
 creditor may become a purchaser. Petit v. Benson, Comb. 452 (1696); 
 Stratford v. Tu-ynan, Jac. 418 (1822); Attv.-Gcn. v. Fort, 8 Price 364 note 
 (1804) ; Cookson v. Fryer, i F. & F. 328 (1858) ; Dclisle V. Dczvitt, 18 U. C. 
 Q. B. 1^5 (1859) ; Villars v. Rogers, L. R. 9 Ch. App. 439 (1874) ; Morris' 
 Estate, Crabbe (U. S.) 70 (1836); Smnll v . Jones, i Watts & S. (Pa .') 128 
 (1841) ; Cavcnder v. Smith, I Iowa 306 (1855) ; Dicker)iian v. Burgess, 20 
 111. 266 (1858) ; Boos V. Morgan, 130 Ind. 305, 30 N. E. 141, 30 Am. St. 237 
 (1891) ; Bradley v. Hefferman, 156 Mo. 653, 57 S. W. 763 (1900). In^Pcnij- 
 sylvania, where there is a sale by the officer to the execution creditor in the 
 absence of anj- other bidder or bystander, collusion will be presumed. 
 RirkritS V. TJnnngst, 1=; Pa. Q O, '^^ Am. Dec. 572 (1850); McMichagL 'V .^M£- 
 Dernioti,, 17 Pa. St. 353, 55 Ani. Dec. 560 (1851) ; Conn i ff'v. Dovle. 8 Phila. 
 (Pa.) 630 (1871). Contra: State v. Johnson, 2 N. Car. (Hayw.) 293 (179S) ; 
 Learned v. Geer, 139 IVIass. 31, 29 N. E. 215 (1885) semble; Power v. Larahee, 
 3 N. Dak. 502, 57 N. W. 789, 44 Am. St. 577 (1894) ; Gilbert v. Watts-DeGol- 
 yer Co., 169 111. 129, 48 N. E. 430, 61 Am. St. 154 (1897) ; and see Swiresjv. 
 Brotherline. 41 Pa. St. 1.';=;, 80 Am. Dec . 601 (1861). 
 
 In Owen \. Barksdale, 30 N Car. 81, 47 Am. Dec. 348 (1847), it is said: 
 ■"When a sheriff receives an execution, it is his duty to levy it, and make 
 public sale of the property' so levied on ; he can not deliver it to the plaintiff 
 in the execution in satisfaction of his debt, nor can he sell it at private sale; 
 and until he does sell it as the law directs, his deed can convey no title to the 
 purchaser. It is the judgment, execution, sale and conveyance by him that 
 completes the conversion of the property." Bingjia m V. Youn g, 10 Pa. St. 3^5 
 < 18.19) ; Dickerman v. Burgess, 20 111. 266 (iSsSy; Mechanics^Bank'v. tHtt, 
 ^..\ Mo. 364 (1869) ; Shcehy v. Graves, 58 Cal. 449 (1881). 
 
 i
 
 WALLER V. WEEDALE 737 
 
 WALLER V. WEEDALE 
 
 Court of Common Bench, 1604 
 
 Noy 107 
 
 In detinue the case was thus : A had recovered In debt against 
 W and execution awarded to the now defendant being then sheriff 
 of Southampton ; who takes the goods, etc., and returns a fieri facias 
 et denarios habeo, but none of the goods were sold before the return, 
 but the sheriff kept them in his hands; and judgment now for the 
 plaintiff. For the sheriff can not detain the goods taken upon an 
 execution in his own hands, and satisfy the debt of his proper 
 money. But he ought to sell them upon a venditioni exponas, and 
 may return upon his so doing, quod non invenit emptores ; for a 
 grand inconvenience would ensue, if the sheriff himself might retain 
 them.is 
 
 JOHN J. REYNOLDS v. THOMAS T. HOXSIE 
 
 Supreme Court of Rhode Island i860 
 
 6 R. I. 463 
 
 Ejectment to recover part of a tract of land known as the Reyn- 
 olds Hoxsie farm. At the trial it appeared that the plaintiff claimed 
 title, under a sheriff's deed, to the interest of Reynolds Hoxsie, Jr., 
 which was sold to the plaintiff on July 28, 1855, as the highest bid- 
 der, at a sale under a levy thereon of an execution in favor of the 
 
 "So also, the general rule is that the officer making the sale, or his 
 deputy, can not directly or indirectly become the purchaser of the property 
 sold. Ormond v. Faircloth, I Murph. (5 N. Car.) 35 (1804) ; Mark v. Law- 
 rence, 5 Har. & J. (Aid.) 64 (1820) ; Mills v. Goodsell, 5 Conn. 475, 13 Am. 
 Dec. 90 (1825) ; Perkins v. Thompson, 3 N. H. 144 (1825) ; Pierce v. Benja- 
 min, 14 Pick. (Mass.) 356, 25 Am. Dec. 396 (1833) ; Riner v. Stacv, 8 Humph. 
 (Tenn.) 288 (1847); McCluskey v. IVehb, 4 Rob. (La.) 201 (1843) ; Daniel 
 V. Modawell, 22 Ala. 365, 58 Am. Dec. 260 (1853) ; Crook v. Williams, 20 Pa. 
 St. 342_Xi853) ; Wickliff v. Robinson, 18 111. 145 (1856) ; Robinson v. Clark, 
 7 "Jones (52N. Car.) 562, 78 Am. Dec. 265 (i860) ; Terrill v. Anchaiier, 14 
 Ohio St. 80 (1862) ; Galbraith V. Drought, 24 Kans. 590 (1880) ; Doivning v. 
 Lyford, 57 Vt. 507 (1885) ; Price v. Thompson, 84 Ky. 219, i S. W. 408, 8 Ky. 
 L. 201 (1886) ; McKeighan v. Hopkins, 19 Nebr. 22,, 26 N. W. 614 (1886) ; 
 Shotwell V. Mnnroe, 42 Mo. App. 669 (1890) ; Giles v. Bank of Southwestern 
 Georgia, 102 Ga. 702, 29 S. E. 600 (1897); N. Y. Code Civ. Pro., § 1387. 
 At least, without the knowledge and acquiescence of the parties. Woodbury 
 V. Parker, 19 Vt. 353, 47 Am. Dec. 695 (1847) ; Farnum v. Perry, 43 Vt. 473 
 (1871). Nor can he bid for another person. Chambers v. State, 3 Humph. 
 (Tenn.) 237 (1842) ; Harrison v. McHenry, 9 Ga. 164, 52 Am. Dec. 435 
 (1850) ; Knight v. Herrin, 48 Maine 533 (i860) ; Sparling v. Todd, 27 Ohio 
 St. 521 (1875) ; Caswell v. Jones, 65 Vt. 457, 26 Atl. 529, 20 L. R. A. 503, 36 
 Am. St. 879 (1893) ; Coleman v. Maclean, loi Ga. 303, 28 S. E. 861 (1897). 
 But semble contra Moore v. Pye, 10 Kans. 246 (1872) ; Scott v. Mann, 36 Tex. 
 157 (1871). 
 
 47 — Civ. Proc.
 
 73^ EXECUTION 
 
 IilaintifT against the firm of Gardner & Iloxsic. It further appeared 
 that the sale had hccn twice adjourned by the ofiicer on account of 
 errors in the advertisements of the sale. The case was submitted to 
 the court.^' 
 
 Amf.s, C. J-; At the common law, a sheriff charg^ed with a fieri 
 facias was oblijred to proceed at once to seize and sell the goods of 
 the execution debtor, having full power over the time, place, and 
 mode of sale, in order to enable him to obey the exigency of his 
 writ. He was not bound to sell at auction ; but on the contrary, if 
 he sold in this mode, could not charge against the goods levied the 
 expenses of that mode of sale. If either party to the execution 
 wanted the goods sold at auction, the party requesting it was bound 
 to pay the expenses of sale out of his own pocket. Woodgate v. 
 KnatclihuU, 2 T. R. 148, 156, 157. The ofiicer was not to consider 
 whether it would be of advantage to the debtor to delay the sale or 
 not, his duty being to sell immediately; and if the court found him 
 colluding with the debtor for the purpose of delay, they would fix 
 upon him the whole debt and costs, upon attachment. lb. 157. If 
 he could not find purchasers for the goods levied, or for enough 
 of them to satisfy the debt and costs, his duty was to return the fact 
 upon his process ; and if a venditioni exponas v/as issued to him, 
 he might make the same return to that; since, if the plaintiff in 
 execution w'as dissatisfied with the return, he might set up a pur- 
 chaser of the goods himself. Leader v. Danvers, i B. & P. 359, 
 360. If the goods were sold at auction, it was his duty, however, 
 not to allow them to be sacrificed for want of bidders ; and if a 
 small sum in comparison with their value was bid for tliem, he 
 was to keep them, and return that he did so for want of buyers, 
 and wait for a venditioni exponas, which, in such a case, was con- 
 strued to mean : "Sell for the best price you can obtain." Per Lord 
 Ellenborough ; Keightley v. Birch, 3 Campb. 521, 523, 524." 
 
 ^'The statement of facts is abridged and the arguments of counsel and 
 part of the opinion of the court omitted. 
 
 ^In England the Bankruptcy Act of 1883 (46 & 47 Vict.), ch. 52, § 145, 
 provides "Where the sheriff sells the goods of a debtor under an execution 
 for a sum exceeding twenty pounds (including legal incidental expenses), 
 the sale shall, unless the court from which the process issues otherwise 
 orders, be made by public auction, and not by bill of sale or private contract, 
 and shall be publicly advertised by the sheriff on and during three days next 
 preceding the day of sale." See further the rules of the Supreme Court, 
 Order XLIII, rule 8, and Craivshazv v. Harrison, L. R. (1894) i Q. B. 79. 
 In most jurisdictions statutes require that sale under executions shall be 
 made at public auction after due notice. N. Y. Code Civ. Proc, §§ 1384, 
 1429, 1434, Pa. Act of June 16, 1836, P. L. 755, § 42. In Massachusetts the 
 officer is required to keep personalty four days at least and sell it within 
 fourteen days next after seizure unless it is redeemed. Rev. L. Mass. (1902), 
 ch. 177, § 36. See Caldzvell v. Eaton, 5 Mass. 399 (1809) ; Tilconib v. Union 
 Marine & Fire Ins. Co., 8 Mass. 326 (1811) ; Field v. Fletcher, 191 Mass. 494, 
 78 N. E. 107 (1906); Plaisted v. Floar, 45 Maine 380 (1858). Within the 
 time allov/ed by law, the actual time of sale is usually in the discretion of 
 the officer. Powell v. Governor, 9 Ala. 36 (1846). Personal property, if levied 
 on before the return day, may in most jurisdictions be sold after the return 
 day. Linnendoll v. Doe, 14 Johns. (N. Y.) 222 (1817); Wheaton v. Sexton, 
 4 Wheat. (U. S.) 503, 4 L. ed. 626 (1819) ; Smith v. Spencer, 3 Ired. (N. Car.) 
 256 (1842) ; Hare v. Pearson, 26 N. Car. (4 Ired.) 76 (1843) ; Spang_v^_Cojti^
 
 REYNOLDS V. HOXSIE 739 
 
 In this state the sale of goods upon execution is regulated by- 
 statute, with more attention to the interests of the execution debtor. 
 The sheriff is to sell the goods at auction, and not until he has adver- 
 tised them for sale at least ten days, in order that the debtor may 
 have that time in which to redeem them, as well as to ensure them 
 against sacrifice. With regard to real estate, which may be levied 
 upon and sold here on execution, the statute still more carefully 
 guards the rights of the debtor, requiring the officer to "set up 
 notifications of said levy in three or more public places in the town 
 where said real estate lies, for the space of three months before the 
 same shall be exposed to sale, notifying all persons concerned, of 
 the levy and intended sale of the estate, that the owner thereof 
 may have an opportunity to redeem the same;" and also to "notify 
 said sale, by causing an advertisement thereof to be published once 
 a week, for the space of three weeks next before the time of sale, 
 in some newspaper in the county where said estate lies ; and if no 
 newspaper be printed therein, then in some newspaper printed in 
 Newport or Providence." Rev. Stat, chapter 195, sections 8, 11.^^ 
 
 Under these statutes, the practice has been for officers charged 
 with executions, for good cause, to adjourn sales of property real 
 or personal levied upon by them, duly advertising the change of the 
 time of sale, that there may not be a failure for want of buyers. Such 
 power of adjournment was always deemed incidental to the power 
 
 monw e alth, 12 Pa. S t. 358 (1849) ; Dennis v. Chapman, 19 Ala. 29, 54 Am. Dec. 
 186 (1851) ; P axson's Appeal, 49 Pa. St. iq'; (186=; ') ; Cox v. Currier, 62 Iowa 
 551, 17 N. W. yby (1883). Although by delay the execution may become 
 dormant as to creditors. Dtmderdale v. Sanvesire, 13 Abb. Pr. (N. Y.) 1 16 
 (1861); In re Earl's Appea l, ix Pa. St. 48^— ^tSsoV In the case of real 
 property the majority of decisions permits a sale after the return day. 
 Tillofson v. Doe, 5 Blackf. (Ind.) 590 (1841) ; Wood v. Colvin, 5 Hill (N. Y.) 
 228 (1843) ; Bellingall v. Duncan, 8 111. (3 Gil.) 477 (1846) ; Pettingill v. Moss, 
 3 Minn. (Gil. 15O 222, 74 Am. Dec. 747 (1859) ; Stein V. Chambless, 18 Iowa 
 474, 87 Am. Dec. 411 (1865); Willoughby v. Dewey, 63 111. 246 (1872); 
 Lowry V. Reed, 89 Ind. 442 (1883) ; Huff v. Morton, 94 Mo. 405, 7 S. W. 283 
 (1887) ; Ollis V. Kirk Patrick, 3 Idaho (Hasb.) 247, 28 Pac. 435 (1891) ; Hunt 
 V. Swayse, 55 N. J. L. 33, 25 Atl. 850 (1892) ; Ludeman v. Hirth, 96 Mich. 17, 
 55 N. W. 449, 35 Am. St. 588 (1893) ; Wyant v. Tiithill, 17 Nebr. 495, 23 N. W. 
 342 (1895) ; Rhodes v. Barnett. iq6 Pa 420. 46 Atb 438 (1900). Contra: Lehr 
 V. Doe ex dem. Rogers, 3 Sm. & M. (Miss.) 468 X"i844) ; Rogers v. Cawood, 
 
 I Swan (Tenn.), 142 (1851) ; Williamson v. Williamson, 52 Miss. 725 (1876) ; 
 Cain v. Woodward, 74 Tex. 549, 12 S. W. 319 (1889) ; Hawes v. Rucker, 94 
 Ala. 166, ID So. 85 (1891). 
 
 ^''See Wellington v. Gale, 13 Mass. 483 (1816) ; Mushhack v. Ryerson, 
 
 II N. J. L. 346 (1830) ; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475 (1856) ; 
 Olcott V. Robinson, 21 N. Y. 150, 78 Am. Dec. 126 (i860) ; Pary's Appeal, 41 
 Pa. St. 273, 80 Am. Dec. 615 (1861) ; Jackson v. Spink, 59 111. 404 (1871) ; 
 Carrier V. EsbauaJu 70 Pa. St ^_2jQ (1871) ; Morey v. Hoyt, 65 Conn. 516, 33 
 Xtl. 490 (1895) ; Holmes v. 'Jordan," 163 Mass. 147, 39 N. E. 1005 (1895); 
 Voting V. Scho field, 132 Mo. 651, 34 S. W. 497 (1895) -. McK ee v. Ke rr, 19 2 
 
 ^■_SL j:..64, 43 Atl. 953 (i8£> o) ; Brockhiirst v. Kaiser, 75 N. J' L^(46 Vroom) 
 itl. 
 
 i6_2, 67 Atl. 75 (1907) ; Blake v. Rogers, 210 Mass. 588, 97 N. E. 68 (1912) ; 
 Victor Inv. Co. v. Rocrig, 22 Colo. App. 257, 124 Pac. 349 (1912). "That is a 
 public and a proper place for setting up notices, which is likely to give 
 information to those interested and who may probably become bidders at 
 the sale." Cummins v. Little, 16 N. J. Eq. 48 (1863) ; Russell v. Dyer, 40 N. H. 
 173 (i860) ; Austin v. Soule, 36 Vt. 645 (1864) ; McLaughlin v. Huston- 
 Hudson Lumber Co., 31 Okla. 182, 120 Pac. 659 (1912).
 
 740 Exr.ci'TiON 
 
 to sell; the whole of which was intrusted by the execution, under 
 the law, to the ofticer. No other order was ever issued to him than 
 the execution ; a venditioni exi>onas being wholly unknown in the 
 simplicity of our practice.-" Within the limits of the law the officer 
 exercised his discretion with regard to the time of sale ; and as no 
 positive publication of the necessary power of adjournment existed 
 upon the statute book, adjourned the sale, from time to time, as the 
 exigencies of the case required.-^ If he could not, from storms or 
 accidents, reach tlie place of sale; if reaching it, from want of buy- 
 ers, he could not sell, or could not sell except at a great sacrifice; 
 in fine, if from any cause, consistently with the performance of his 
 general duty under the execution, the sale could not take place at 
 the time originally appointed, he appointed another time at which 
 it might. Nor was this practice peculiar to ourselves; but in other 
 states this same incidental power was not only possessed, but in 
 proper cases required to be exercised, by sheriffs charged with sales 
 upon execution as a part of their duty. Warren v. Leland, 9 Mass. 
 265, 266; Tinkom v. Purdy, 5 Johns. (N. Y.) 345; McDonald v. 
 Neilson, 2 Cow. (N. Y.) 159, 170, 185, 190, 191 ; Russell v. Rich- 
 ards, II Maine 371; ilfjizils_x_ill£i^ALZiii[l<2ii^^ Richards 
 et al. V. Holmes et al, 18 How. (N. Y.) 147. No doubt, officers 
 were liable to either party to the execution, for the improper, and 
 especially fraudulent exercise of this power, to his detriment; but 
 that they were deemed to possess and actually did exercise it, long 
 before our statutes incidentally recognized it as possessed by them, is 
 perfectly notorious. -- 
 
 ^In England under the rules of the Supreme Court, Order XLIII, rule 
 2, the judgment creditor is at liberty to sue out a writ of venditioni exponas 
 where it appears upon the return of a fieri facias that the sheriff has seized 
 but not sold the goods of the judgment debtor. In Hughes v. Rccs, 4 M. & W. 
 468 (1838), it is said by Lord Abinger, C. B. : "The venditioni exponas is 
 not a process distinct from the fieri facias, but a part of it ; it is a writ direct- 
 ing the sheriff to execute the fieri facias in a particular manner." Accord : 
 Farmers' Bank v. Masscy, i Harr. (Del.) 186 (1833) ; Frisch v. Mille r. 5 Pa. 
 St. 310 (1847); Fetxno v. Coulter, 14 Ark. 38 (1853); Holmes v. McInToe, 
 20 Wis. 657 (1866) ; Bigelow v. Renkcr, 25 Ohio St. 542 (1874) ; Dryer v. 
 Graham, s8 Ala. 623 (1877); Borden v. McRae, 46 Tex. 396 (1877); llicks 
 V. Ellis, 65 Mo. 176 (1877) ; Hall v. Clagelt, 63 Md. 57 (1884) ; Hastings v. 
 Bryant, 115 111. 69, 3 N. E. 507 (1885) ; Rain v. Young, 61 Kans. 428, 59 Pac. 
 1068, 78 Am. St. 325 (1900). In J'ennsylvania a venditioni exponas is the 
 proper writ under which to sell land levied on by fieri facias and condemned 
 by the sheriff's inquisition. Ac^f J une 16, 1836, P. L . 755, § 61, P. L. Dig. 
 (2d ed.) 3464. 
 
 -'But now the General Laws of Rhode Island (1909), tit. 31, ch. 304, § 13, 
 provide: "The officer may, for good cause, from time to time, adjourn the 
 .sale of the estate levied on, giving one week's notice thereof by publication 
 in a newspaper." McCudden v. li heeler, 23 R. I. 528, 51 Atl. 48 (1902). 
 
 "The power of the sheriff to adjourn a sale for good cause is generally 
 recognized. Tinkom v. Purdy, 5 Johns. (N. Y.) 345 (1810) ; McDonald v. 
 Neilson, 2 Cow. (N. Y.) 139, 14 Am. Dec. 431 (1823) ; Russell v. Richards, 
 II Maine 371, 26 Am. Dec. 532 (1834) ; La nts v. IVorthi iufton. 4 Pa. St. 153, 
 45 Am. Dec. 682 (1846) ; IDonaldson v.^Exrt^p Pa. ^t,-486_jCi847) ; Jewctl v. 
 Guycr, 38 Vt. 209 (1865); Sanborn v. Chamferlin, loi Mass. 409 (1869); 
 Todd v. Hoagland, 36 N. J. L. 352 (1873) ; Wade v. Saunders, 70 N. Car. 270 
 C1874) ; Aldrich v. Grimes, 14 R. I. 219 (1883) ; Hollister^ v. Vanderlin, 165 
 Pa._St. 248, 30 Atl. 1002, 44 Am. St. 657 (1895) ; Gilbert v. Watts-DeGolyer
 
 M NAUGHTON V. M LEAN 74I 
 
 We do not by this intend to sanction needless adjournments of 
 such sales merely for the purpose of delay, and especially not ad- 
 journments made by an officer in collusion with either party, to 
 serve the particular interest of that party, to the injury of the other. 
 When such cases arise, they will be dealt with according to their 
 circumstances; it being perfectly understood that there can not be 
 a wrong, under our jurisprudence, for which the law in some form 
 does not provide an adequate remedy. In the case at bar, there 
 was not only no collusion of the kind adverted to, but the delay of 
 sale, caused by the adjournment was either absolutely required, or, 
 in proper caution, prudent, in order to its validity. Accidentally — - 
 and the evidence does not disclose whether by the carelessness of 
 the officer or of the printer — the newspaper advertisements of the 
 sale, in both instances, embodied a mistake. In the first, the day of 
 the week for the sale, appropriate to the day of the month named, 
 was mistaken ; and in the last, the levy was stated to have been made 
 in January, w^hen it was actually made in February. For the pur- 
 pose of correcting such mistakes, it was, in our judgment, quite 
 proper for the officer, that the sale might be correctly advertised 
 and all question of its validity upon this ground avoided, to adjourn 
 the sale, as he did, for the periods necessary for this purpose ; and 
 the defendant, at least, whose time to redeem was thereby enlarged, 
 is the last person who has cause to complain of the delay. 
 
 Judgment for the plaintiff. 
 
 MOSES A. McNAUGHTON v. CHARLES E. McLEAN 
 
 Supreme Court of Michigan, 1889 
 
 T2> Mich. 250 
 
 Relator applied for mandamus to compel the respondent, as 
 financial secretary to the Laboring Men's Building and Savings 
 Association, to transfer to relator certain shares of stock in said 
 association bid off by him at an execution sale.-^ 
 
 Sherwood, C. J. : Respondents make answer to the petition of 
 relator, and among other things say that the sale under which re- 
 Co., 169 111. 129, 48 N. E. 430, 61 Am. St. 154 (1897) ; Weatherhy v. Slape, 58 
 N. J. Eq. 550, 43 Atl. 898, 78 Am. St. 627 (1899) ; Frazec v. Nelson, 179 Mass. 
 456, 61 N. E. 40, 88 Am. St. 391 (1901). Contra: Fraaman v. Fraaman, 64 
 Nebr. 472, 90 N. W. 245, 97 Am. St. 650 (1902). But the power is not to be 
 arbitrarily exercised. Todd v. Hoagland, 36 N. J. L. 352; Gilbert V. Watts- 
 DeGolyer Co., 66 111. App. 625, aff'd 169 111. 129, 48 N. E. 430, 61 Am. St. 154 
 (1897). And in many jurisdictions a new notice must be given. Enloe v. Miles, 
 12 Sm. & M. (Miss.) 147 (1849) ; Thornton v. Boyden, 31 111. 200 (1863) ; 
 Montgomery v. Barrow, 19 La. Ann. 169 (1867) ; Frederick v. IVheelock, 3 Th. 
 & C. (N. Y.) 210 (1874) ; Avon-by-the-Sea Land &c. Co. v. Finn, 56 N. J. Eq. 
 808, 41 Atl. 360 (1898). Contra: Luther v. McMichael, 6 Humph. (Tenn.) 
 298 (1845), and compare Dexter v. Shepard, 117 Mass. 480 (1875) ; Hollister 
 JiLj/gndrrlin. T65 ?n^t^248, 30^Atl. 1002, 44 Am. St. 657 (1895). 
 
 "Part of the opinion of the court is omitted.
 
 74- EXECUTION 
 
 lator claims to be the owner of sr.id stock was made by the officer 
 liolding tlie execution in the hall of the association in the evening, 
 between nine and ten o'clock, after a meeting had been held, and 
 after all the members but three had left and gone away; and they 
 aver that such sale was void, and conferred no rights upon the 
 relator respecting the stock. Carnick v. Myers, 14 Barb. (N. Y.) 9. 
 
 The sale made by an officer under an execution at such an hour, 
 and under such circumstances, was void, at least as to the parties 
 liaving knowledge of the facts, and in this case they had such knowl- 
 edge. In New York the statute requires that the sale shall be made 
 between nine o'clock in the forenoon and the setting of the sun,-' 
 but, independently of any statute, we think that a public sale of 
 property ordered by court, at such an unseasonable hour, ought not 
 to be sustained. It would subject the debtor's property in a large 
 majority of cases to great sacrifice, and must be held against public 
 policy and void.-^ 
 
 The writ will be denied. 
 
 HEROD V. BARTLEY 
 
 Supreme Court of Illinois, 1853 
 
 .15 ///• 58 
 
 Replevin by Herod and Colvard against Seaton, to recover pos- 
 session of a horse. The pleas put in issue the right of the plaintiffs 
 to the property. The cause was heard by the court. The plaintiffs 
 introduced the following evidence, and then closed their case : 
 (i) A transcript from the docket of a justice of the peace, showing 
 a judgment in favor of Hudson against Layton, and an assignment 
 thereof to the plaintiff's; (2) An execution issued on the judgment, 
 which vvas returned satisfied by the sale of a horse to the plaintiffs ; 
 (3) The constable testified, that he levied tlie execution on the horse 
 in question, and allowed Layton to retain him till the day of sale ; 
 the plaintiffs purchased the horse at the sale, but the horse was not 
 then present, nor was he in the possession of the v/itness. Judgment 
 was rendered for the defendant.-^ 
 
 ^N. Y. Code Civ. Pro., § 1384. 
 
 ^Accord: Greenwood v Lehigh C oal Co.jl_C\axisU£S') 393 (1843) ; Carrick 
 v. Myers, 14 iiarb. (i\. Y.) (i852y; Rigney v. Small, 60 111. 416 (1871) ; 
 Grace v. Garnett, 38 Tex. 156 (1873) ; Cole v. Porter, 4 G. Gr. (Iowa) 510 
 (1854) scmble; Hancock v. Shockman, 4 Ind. T. 138, 69 S. W. 826 (1902) ; 
 Rhodes & Son Furniture Co. v. Jenkins, 2 Ga. App. 475 (1907). Compare 
 Wood-ward v. Sartzvell, 129 Mass. 210 (1880); Injre_Raube nliold 's Estate. 
 I Woodv.'. (Pa.) 478 (1869). A sale prior to the time authorized by statute 
 IS mvalid. Mushback v. Ryerson, 11 N. J. L. 346 (1830) ; Gibbs_jL^J^.££ly, 
 7 Watts CPa.) 305 ( 1838) ; IVilliams & Davis v. Jones, I Bush. (Ky.) 621 
 (1866) ; Camp v. G'ahley, 6 111. App. 499 (1880); IVienskawski v. IVisner, 
 114 Mich. 271, 72 N. W. 177 (1897). 
 
 "The statement of facts is from the opinion of tlie court, a brief portion 
 of which is omitted.
 
 LONGWORTHY V. FEATHERSTON 743 
 
 Treat, C. J. : The plaintiffs were not entitled to recover. They 
 failed to substantiate their claim of title. The sale of the horse by 
 the constable was illegal and void. In the sale of personal property 
 on execution, the property itself must be present. Bidders should 
 have an opportunity of inspecting the goods, and forming an esti- 
 mate of their value. This is the only way to secure fairness and com- 
 petition at public sales. It is necessary to protect the rights of both 
 debtor and creditor. It should also be in the power of the officer to 
 deliver the property forthwith to the purchaser.^^ 
 
 Judgment affirmed. 
 
 LONGWORTHY v. FEATHERSTON 
 
 Supreme Court of Georgia, 1880 
 
 65 Ga. 1 6s 
 
 Ejectment by Longworthy against Featherston to recover a tract 
 of land sold by the sheriff on executions against the plaintiff and 
 purchased by the defendant. The jury found for the defendant and 
 
 "Accord: Linnendoll v. Doe, 14 Johns. (N. Y.) 22 (1817) ; Sheldon v. 
 Soper, 14 Johns. 352 (N. Y.) (1817) ; Crcsson v. Stoitt, \y Johns. (N. Y.) 116, 
 8 Am. Dec. 372, (1819) ; Ainsworth v. Greenlee, 3 Murph. (N. Car.) 470, 9 
 Am. Dec. 615 (1819) ; Bostick v. Reiser, 4 J. J. Marsh. (Ky.) 597, 20 Am. 
 Dec. 237 (1830) ; Smith v. Tritt, i Dev. & B. (N. Car.) 241, 28 Am. Dec. 565 
 (1S35) ; Bakeu'cll & Cole v. Ellsworth, 6 Hill (N. Y.) 484 (1844) ; Skinner 
 V. Skinner, 4 Ired. L. (N. Car.) 175 (1843) ; Blanton v. Morrow, 7 Ired. Eq. 
 (N. Car.) 47, 53 Am. Dec. 391 (1850); Perkins v. Spmilding, 2 Mich. 157 
 (1851) ; Burns v. Ray, 18 B. Mon. (Ky.) 392 (1857) ; Crandall v. Blen, 13 Cal. 
 15 (1859) semble; Baker v. Casey, 19 Mich. 220 (1869) ; Tibbetts v. Jageman, 
 58 111. 43 (1871) ; Gaskill V. Aldrich, 41 Ind. 338 (1872) ; Morgan v. Holladay, 
 48 How. (N. Y.) 86, 38 N. Y. Super. Ct. ^3 (1874); IVinfield v. Adams, 
 34 Mich. 437 (1876) ; Rozvan v. Refeld, 31 Ark. 648 (1877) ; Murphy v. Hill, 
 77 Ind. 129 (1881); Boylan v. Relly, 36 N. J. Eq. 331 (1882); Wright v. 
 Mack, 95 Ind. 332 (1883) ; Yoemans v. Bird, 81 Ga. 340, 6 S. E. 179 (1888) ; 
 Gnnter v. Cobb, 82 Tex. 598, 17 S. W. 848 (1891) ; Horsey V. Rnowles, 74 Md. 
 602, 22 Atl. 1 104 (1891) ; Alston v. M or phew, 113 N. Car. 460, 18 S. E. 335 
 (1893); Lawry v. Ellis, 85 Maine 500, 27 Atl. 518 (1893); Stonebridge v. 
 Perkins, 141 N. Y. I, 35 N. E. 980 (1894) ; Penney v. Earle, 87 Maine 167, 32 
 Atl. 879 (1895); Brock V. Berry, 132 Ala. 95, 31 So. 517, 90 Am. St. 896 
 (1901) ; Hartman v. He ffle finger, 47 Pa. Super. Ct. i (1911). In some cases 
 it has been held that the property need not be in immediate view provided the 
 property is open to the inspection of bidders. Earle v. Gorham Mfg. Co., 
 2 App. Div. 460, 2,7 N. Y. S. 1037, 74 N. Y. St. 2>32> (1896), where, on a 
 sheriff's sale of the silverware of a hotel, held in the hotel rotunda a large 
 part of the silverware was in an adjoining? room opening out of the rotunda. 
 Tifft v. Barton, 4 Dcnio (N. Y.) 171 (1847) ; Bruce v. Westervclt, 2 E. D. 
 Smith (N. Y.) 440 (1854) \ Klot>t> v. IV itmover. 43 Pa S t. 210. 82 Am. Dec. 
 .';6l (1S62); National BanF'ofJTT'vT^pragiie, 20 N. 7- Eq. 159 (1869); 
 Hcw\~-&-Cd. MU^a lterson, 5 7 Pa. St. 346( 1868) ; Phillips v. Brown, 74 Maine 
 549 (1883). While the decidecl wcightoTaUttTOrity is that a sale not within 
 view of the bidders is void, there are decisions which hold such a sale void- 
 able only. Pads v. Stephens, 63 Mo. 90 (1876) ; Foster v. Mabe, 4 Ala. 402, 
 37 Am. Dec. 749 (1842); Hazzard v. Burton. 4 Hair. (D'el.) 62 (1843); 
 Cook V. Timmons, 67 111. 203 (1873).
 
 744 EXECUTION 
 
 plaintitY cxooptcil. Tl was insisted for tlu> ]ilainlilT that the sale 
 was illojj^al l>ccausc it was not before tlie court house door."^ 
 
 Jackson, j.: The court house was burned down. No new one 
 had been buiU, and no place rented for a court house. The superior 
 court was hekl twice a year at an academy, but school was kept 
 there, and the county only engaged it tenijiorarily at the time and 
 for the time the suj^erior court sat, and it remained and was private 
 property. The clerk's office was in a rented room at another place. 
 Where the other county officers kept theirs the record does not 
 tell us. 
 
 Under these circumstances tiie sheriff went to the site of the 
 burnt court house and the weather being hot he made proclamation 
 and took the crowd to a shade some hundred or hundred and fifty 
 yards off in full view of the court house site, and there sold the 
 property to the highest and best bidder, at a fair and full price. 
 The sale was fully attended and it appears that the property brought 
 full price; and under tlie peculiar facts and circumstances of this 
 case, we think that the purchaser who paid full price, and whose 
 money, paid for this land, was applied to the executions against the 
 plaintiff, should be protected. The court house here was burnt, no 
 other had been built, no other had been rented by the year, or for 
 any term of years, as a court house — the academy had not been so 
 rented, but was merely used by arrangement "with the owner made 
 twice a year to hold the superior court there, and the balance of 
 the time he kept school therein, and on the day of this sale the school 
 was kept there. There was then no court house in the county at the 
 time of the sale. IMust sheriiT sales therefore cease, and no title pass 
 to property at them, and no judgment be enforced, and all the wheels 
 of justice stop running? We think not. The sale ought not to have 
 been at the academy; the sheriff and bidders would have been tres- 
 passers on the school and school master and his private property. 
 It ought not to have been at the clerk's ofBce ; that was in a private 
 building, and in no sense the court house, for it does not appear that 
 any court ever was held there ; the record shows no other place 
 Vv-here to sell but the court house site, still the county property and 
 whereon in time the court house would be rebuilt ; for convenience 
 and the comfort of shade, and with no hurt to anybody, the sheriff 
 proclaimed to the crowd assembled there within the hours of sale 
 that he would go over to a grove in full view, and there everybody 
 went and the sale took place. These circumstances take this case 
 without the cases cited by the counsel for plaintiff in error, w'ho 
 argued the case with much learning and ability, and we affirm the 
 judgment upholding the validity of the sale. 
 
 The sale by the sheriff should be at the court house, if there be 
 one, either owned or rented by the county authorities; but if there 
 be but the ashes of one, and none other substituted, the sheriff may 
 sell there, or in full view of it, after proclaiming within the hours of 
 sale to the assembled bidders that they would go to a shady place 
 hard by to escape the oppressive heat of the sun ; and one who buys 
 
 *Part of the opinion of the court is omitted.
 
 LOXGWORTHY V. FEATPIERSTON 745 
 
 for full value at such a sale will be protected by the sheriff's title 
 against the defendant in execution.^® 
 Judgment affirmed. 
 
 ^°In Kane v. McCozvn, 55 Mo. 182 (1874), a sheriff's sale held at the 
 door of a church building located at the county seat and used at the time 
 as the court house, the regular court house being occupied by troops, was 
 held valid. Said the court : "It is plain that a sale at the door of the de- 
 serted court house, where no court was in session, would have been utterly 
 against the spirit and meaning of the law." 
 
 In Union Bank v. Sjiiitli, 3 La. Ann. 147 (1848), where, after a levy and 
 advertisement of the sale, the court house was by special law removed to 
 another place, it was held that the advertisement posted at the old court 
 house should be removed to the new and the sale be made at the latter. 
 In Patterson v. Reynolds, 19 Ind. 148 (1862), a sale of land by the sinking 
 fund commissioners was set aside on the ground that it was not made at 
 the court house door. It appeared that the commissioner who cried the sale 
 made proclamation of the terms of sale on the court house steps and then 
 on account of the inclemency of the weather went into the court house and 
 conducted the sale from the judge's stand in full view of the court house 
 door. The judgment was reversed. 
 
 The statutes of many states require that sales of real estate on execution 
 shall be made at the court house, or door of the court house, of the county 
 wherein the land is situate. Sessions v. Peay, 23 Ark. 39 (1861); Mers v. 
 Bell, 45 Mo. 333 (1870) ; Koch & Dry f us v. Bridges, 45 Miss. 247 (1871) ; 
 Biggs & Co. v. Brickell, 68 N. Car. 239 (1873) ; Holmes v. Taylor, 48 Ind. 169 
 (1874) ; Sinclair v. Stanley, 64 Tex. 67 (1885) ; Moody v. Moe'llcr, J2 Tex. 635, 
 10 S. W. 727, 13 Am. St. 839 (1889) ; Kendrick v. Latham, 25 Fla. 819, 6 So. 
 871 (1889) ; Borneman v. N orris, 47 Fed. 438 (1891) ; Anniston Pipe-Works 
 V. Williams, 106 Ala. 324, 18 So. iii, 54 Am. St. 51 (1894). Where the place 
 of sale is not designated by law, the officer in choosing the place must act in 
 good faith and with due regard for the rights and interests of the parties. 
 Howland v. Pettey, 15 R. I. 603, 10 Atl. 650 (1887) ; Cowgill v. Cahoon, 3 
 Harr. (Del.) 2;^ (1839) ; Cummins v. Little, 16 N. J. Eq. 48 (1863) ; Wood- 
 ward V. Sartzi'ell, 129 Mass. 210 (1880). A term of years need not to be sold 
 on the premises. Sowers v. Vie, 14 Pa/SL-QQ-XlSjO). A sale of real estate 
 on execution held" out oF the county where the land lies is at least irregular 
 and is generally held void. Cox v. Nelson, i T. B. Mon. (Ky.) 94, 15 Am. 
 Dec. 89 (1824) ; Trestor v. Fleish er, 7 W atts & S. (Pa.) 137 (1844) ; Doe ex 
 dem. Hanby v. Tucker, 23 Ga. 132, 68 Am. Dec 514(1857) ; Jenncrs v. Doe 
 ex dem. Pomeroy, 9 Ind. 461 (1857) ; Aired v. Montague, 26 Tex. 732. 84 Am. 
 Dec. 603 (1863) ; Thacher v. Devol, 50 Ind. 30 (1875) ; Morrell v. Ingle, 23 
 Kans. 32 (1879) ; Kent::ler v. Chicago &c. R. Co., 47 Wis. 641, 3 N. W. 369 
 (1879) ; Street v. McClcrkin, 77 Ala. 580 (1884) ; Wort ham v. Basket, 99 N. 
 Car. 70, 5 S. E. 401 (1888) ; Needles v. Frost, 2 Okla. 19, 35 Pac. 574 (1894). 
 
 (Tourt of King's Bench, 1694, Pahnet V. Price, 2 Salk. 589. An action was 
 laid in Staffordshire, and judgment for the plaintiff; he sued out a fieri 
 facias with a testatum into Worcestershire; and now it was moved that this 
 was irregular, and ought to be set aside, because no fieri facias had ever gone 
 into Staffordshire ; and the sheriff of Staffordshire made affidavit that he 
 never returned any fieri facias in the cause: Sed non allocatur; for the 
 fieri facias upon which the testatum is founded, is returned of course by the 
 attorneys themselves, as originals are ; if you search the file you may find one, 
 and that is sufficient. 
 
 At common law, if it was desired to have execution of the defendant's 
 goods in a county different from that in which the venue of the action was 
 laid the practice was to issue what was called a testatum fieri facias, which, 
 regularly, was preceded by a fieri facias in the county of the venue returned 
 nulla bona, Brand v. Mcars, 3 T. R. 388 (1789) ; Cowperthwaite v. Owen, 
 3 T. R. 657 (1790), although the issuing of the original fieri facias was to a 
 great extent a matter of form. Archbold's Practice (Chitty's ed.) 419. In 
 some American jurisdictions this practice has been followed, Denn, Lessee of 
 Inskeep v. Lecoy, i N. J. L. 46 (1790); Trenton Delaware Bridge Co. v.
 
 746 EXECUTION 
 
 WODDYi: 7: COLES 
 Court of Queen's Bench, Temp. Eliz. 
 
 Noy 59 
 
 An action of trespass was brought for taking goods, etc. The 
 defendant said that a recovery was had against the plaintiff in 
 Southw. upon which a fieri facias was directed to him by which he 
 took the goods and sold them. By Po])ham. If a fieri facias for 
 £20 be awarded to the sheriff, upon which he takes an entire chattel 
 and sells it for £40 and returns the fieri facias with the £20 in 
 court, he may detain the surplusage tmtil the defendant comes to 
 demand it of him ; for he is not bound to search the defendant. 
 Agreed. But by Gawdy. If a fieri facias be awarded for 40s. by 
 force of which the sheriff takes five oxen, every one of the value of 
 £5 and sells them all, it is clear that the defendant shall have an 
 action of trespass against the sheriff, which was agreed.^° 
 
 Ward, 4 N. J. L. 320 (1816) ; LesJier v. GcJir, i Dall. (U. S.) 330, i L. ed. 161 
 (17S8); McCo rvnck v. Measjrn,! Serg^&__R^_(Pa.) 92 (1814); Bowman V. 
 Tagg, 12 Phila. (Pa.) 338^(1 878 )T~^'t"/-yo» V- Arnold 172 Pa. St 264, 33 Atl. 
 552 (iS^. Act Tnnp t6. tS;6. P. £77557X767^ "& L- Dig. (2d ed.) 3477- 
 In many jurisdictions tlie common-law practice has been superseded by 
 statutes authorizing the issuing o£ execution into any county in which the 
 judgment has been docketed. N. Y. Code Civ. Pro., § 1365; Roth v. Schloss, 
 6 Barb. (N. Y.) 30S (1S49) ; Dunham v. Reilly, no N. Y. 366, 18 N. E. 89 
 (1888) ; Goii'an v. Foun!ain, 50 Minn. 264, 52 N. W. 862 (1892) ; Bugbee v. 
 Lombard, 88 Wis. 271, 60 N. W. 414 (1S94). Compare Evans v. Aldridge, 
 133 N. Car. 378, 45 S. E. 772 (1903). See also U. S. Comp. Stat. (1913), § 1631 ; 
 Prevo^L:!i^M^rrell^^S^P\tXs. L^ J. 125 (1877); Lyman Ventilating Refrig- 
 erator Co. vTSorFtJiard, Fe^TTas. N"o. 8633, 12 Blatchf. 405 (1875). 
 
 '"A sale of more property than is necessary to satisfy the execution is void. 
 Patterson v. Corneal, 3 A. K. Mar. (Ky.) 618, 13 Am. Dec. 508 (1821); 
 Tiernan v. Wilson, 6 Johns. Ch. (N. Y.) 411 (1822) ; Reed v. Carter, 
 I Blackf. (Ind.) 410 (1825); Richards v. Brittin, 3 Pa. (Clark l.,J.)_2ay 
 (1845) ; Dawson v. Litsey, 10 Bush (Ky.) 408 (1874) ; Cornelius v. Buford, 
 28 Tex. 202, 91 Am. Dec. 309 (1866) ; Plunnner v. Whitney, 33 Minn. 427, 
 23 N. W. 841 (1885); Grim v. Reiiihnl d^AS Pa. 4 46. 2^ Atl. 1129 (1892); 
 Richards v. Edwardy, 138 Ga. 690, 76 S. E. 64 (1912). Compare where the 
 excess was small, Morrison v. Bruce, 9 Dana (Ky.) 2H (1839); Humphry 
 V. Beeson, i G. Gr. (Iowa) 199, 48 Am. Dec. 370 (1848). 
 
 So, where property real or personal is susceptible of subdivision, the 
 officer ought to divide it into parcels, and discontinue the sale as soon as he 
 has realized enough to satisfy the writ. Stead v. Course, 4 Cranch. (U. S.) 
 403, 2 L. ed. 660 (1808) ; Hcwson v. Deygert, 8 Johns. (N. Y.) 333 (1811) ; 
 Groff v. Jones, 6 Wend. (N. Y.) 522, 22 Am. Dec. 5.45 (1831) ; Reed v. Carter, 
 3 Blackf. (Ind.) 376, 26 Am. Dec. 422 (1S34) ; Wheeler v. Kennedy, i Ala. 
 292 (1840); Den ex dem. Davis v. Abbott, 3 Ired. (N. Car.) 137 (1842); 
 Cowen v. Underwood, 16 111. 22 (1854); Aldrich V. Wilcox, 10 R. I. 405 
 (1873); J^^krr V Chester Gas Cn , ^ ^-JEg-J^^ -LI<2. £. D^^ Co. 269 (1873); 
 Gordon V, O'Neil, 96 J^fo. 350, 9 S. WT920 (iSSSJl White v. Roberts, 112 Ky. 
 788, 66 S. W. 758, 23 Ky. L. 2187 (1902). Where an execution commands a 
 sheriff to sell so much of the premises as may be necessary to satisfy a decree, 
 his duty is to sell so much only as may be necessary to meet the requirement 
 of the execution, provided such portion can be conveniently and reasonably 
 detached from the residue of the property. Vanduyne v. Vanduyne, 16 N. j. 
 Eq. 93 (1863).
 
 WOODS V. MONELL 747 
 
 WOODS V. MONELL 
 
 Court of Chancery of New York, 1815 
 
 I Johns. Ch. (N. Y.) 502 
 
 The plaintiff's bill averred that one Sakett had conveyed certain 
 land to the plaintiff in trust to sell the same and apply the proceeds 
 in payment of incumbrances thereon and other debts of Sakett. 
 That the property was subject to judgments upon which executions 
 issued and all the premises were sold together by the sheriff on 
 February 23, 1812; that the plaintiff who was present at the sale 
 gave notice of his deed of trust and requested the sheriff' to sell in 
 parcels ; that the premises were sold to the attorney for the execu- 
 tion creditors who conveyed to Monell and Waller, who had com- 
 menced an action of ejectment. The prayer was for an injunction 
 to stay the action of ejectment and that the sale might be set aside. 
 The answer admitted that the property was sold as a whole; that 
 the premises had been laid out into town lots on a map, but no one 
 had informed the sheriff of the division of the lots, nor did it appear 
 that they had been divided except on paper. Witnesses were heard.'^ 
 
 Kent, Chancellor : The suit is brought to set aside the sheriff's 
 sale, on the ground of fraud. The plaintiff has not made out a case 
 of actual fraud; and if the sale is invalid, it must be because the 
 premises described in the case were sold contrary to law, by being 
 sold entire, and not in parcels, as the plaintiff requested. 
 
 I have no doubt of the value and solidity of the rule, that where 
 a tract of land is in parcels, distinctly marked for separate and dis- 
 tinct enjoyment, it is, in general, the duty of the officer to sell by 
 parcels, and not the whole tract, in one the entire sale. To sell the 
 parcels separately is best for the interest of all the parties concerned. 
 The property will produce more in that way, because it vv^ill accom- 
 modate a greater number of bidders, and tends to prevent odious 
 speculations upon the distresses of the debtor. Nor does the officer 
 act within the spirit of his authority, if he sells more than is requi- 
 site to satisfy the execution. To sell a whole tract, when a small 
 part of it would be sufficient, or, probably sufficient, for the purpose, 
 is a fraud that ought to set the sale aside. The principle which I 
 have suggested has received a judicial sanction. Rowley v. Web b, 
 ±^ximr-4r^2.4-Ml'> Stead v. Course, 4 Cr. (U. S.) 403; hezvson v. 
 Deygerf, 8 Johns. (N. Y.) 333; and whenever a case comes fairly 
 within the reach of it, I shall very willingly adopt and apply it.^^ 
 
 ^JThe statement of facts is abridged and part of the opinion omitted. 
 
 ^-Property, whether real or personal susceptible of division into lots, 
 tracts or parcels, should as a rule be offered for sale in parcels. A "lumping 
 sale" is rarely justifiable. Ryersonv Nicholson , 2 Yeates_X£a4- 516 (1790) ; 
 Rowleyjv. Brown, i Binn ..JlEaJ L6i rib o.-^) : Tiernan v. Wilson. 6 Johns. Ch. 
 U^^-) 4ii'Ti822); Fletcher v. Stone, 3 Pick. (Mass.) 250 (1825) ; Neshitt 
 v. Dallam, 7 Gill. & J. (Md.) 494, 28 Am. Dec. 236 (1836) ; Merwin v. Smith,
 
 ~4S EXECUTION 
 
 But I do not perceive (hat the eireiimstnnces of this case are 
 suiTicient to warrant the apphcation of llie rule. 
 
 The plaintiff was present at the sale, and became a bidder. He 
 requested the sheriff to sell the premises by lots, and not in one 
 entire parcel ; but he produced no map or other description of the 
 ground as laid out in lots. In the deed of trust under which the 
 plaintiff" claimed title, and which had l)een executed to him by the 
 defendant in the execution, about six months before, the ground! 
 was not designated by lots, but was described as a "certain lot, piece, 
 or parcel of land, known and distinguished on a map, etc., as lot 
 No. 34, and the easterly end of lot No. 38, containing three and a 
 half acres, and bounded," etc. And when the plaintiff took posses- 
 sion of this "said tract of land," under his deed, he leased the same 
 as one entire parcel to I. ITasbrouck ; and so it appears to have been 
 enjoyed at the time of the sale. 
 
 The sale is represented as having been made on the land. To 
 bring the sheriff in default, or to charge him with an abuse of trust, 
 the plaintiff, who was then in possession, and claimed the land, 
 ought, at least, to have furnished the sheriff with clear and distinct 
 proof of the division of the three acres into town lots, and of the 
 size and description of these lots, and that the same was the act of 
 the owner.2^ Sq small a tract, and under the occupation of one 
 
 2 N. J. Eq. 182 (1839) ; Coxc V. Halstcd, 2 N. J. Eq. 311 (1840) ; Pcnn v. 
 Craig 2 N. J. Eq. 495 (1841) ; Hicks & Hammond v. Perry, 7 Mo. 346 
 (1842) ; Day v. Graham, 6 111. (i Gilm.) 435 (1844) ; Culberson v. Morgan, 
 ^g N Car 3S7, 47 Am. Dec. 329 (1847) ; Slierrv v. Nick, i Ind. (Smith 289) 
 S75 (1849) ; TnlC-iu.Cw-J2MzaLAPKi^a_UiBaJJ33 (1850) ; Reed v. Diven, 7 Ind. 
 189 (1835) ; Tillman v. Jackson, i Minn. (Gil. 157) 183 (1854) ; Cunningham 
 V Cassidy, 17 N. Y. 276, 7 Abb. Pr. 183 (1858) Boyd v. Ellis, 11 Iowa 97 
 (1869) ; klopp V. irhiiniay£K,-43 ^^- ^^- 21Q (1862') ; San Francisco v. Pixlcy, 
 21 Cal. 5^ (i8r32) ; Catlett v. Gilbert, 23lmr 614 (1864) ; Btmker v. Rand, 
 19 Wis. 253, 88 Am. Dec. 684 (1865) ; Gregory v. Purdue, 32 Ind. 453 (1870) ; 
 Tugzvell v. Bussing, 48 How. Pr. (N. Y.) 89 (1874) ; Hay v. Baugh, 77 Hi- 
 :;oo (1875) ; Bell v. Taylor, 14 Kans. 277 (1875) ; Schilling v. Ltntncr, 43 N. J. 
 Eq. 444, II Atl. 153 (1887) ; Grim v. Rejnbold, 148 Pa. St 446, 23 Atl. 1129 
 (1892); PoTi'cr V. Larabee, 3 N. Dak. 502, 57 N. W. 789, 44 Am. St. 577 
 (1894); Hart v. Hines, 10 App. Cas. (D. C.) 366 (1897); Forbes v. Hall, 
 102 Ga. 47, 28 S. E. Q15, 66 Am. St. 152 (1897) ; Holt on v. Moody, 117 Mich. 
 321 75 N W. 762 (1898) ; Brock V. Berry, 132 Ala. 95, 31 So. 517, 90 Am. St. 
 896 (1901) ; Miller v. McAllister, 197 111. 72, 64 N. E. 254 (1902) ; Copper v. 
 Iowa Trust &c. Bank, 149 Iowa 336, 128 N. W. 373 (i9io) ; Sublett \. 
 Gardner, 144 Ky. 190, 137 S. W. 864 (1911) ; Vangnndy V. Hill, 262 III. 162, 
 104 N. E. 147 (1914) ; York v. Bvars, 131 Tenn 38, 173 S. W. 435 (i9i.S). 
 
 »='In Lennon v. Heindel, 56 N. J. Eq. 8, 37 Atl. 147 (1897), on bill by the 
 execution defendant to set aside a sheriff's sale of real estate it was urged 
 that the property should have been sold in parcels. Pitney, V. C., said : 
 "I think this ground fails for two reasons— first, I am not sure that it would 
 have sold for more if it had brcn sold in parcels, though it is probable that it 
 would; second, no serious request of the sheriff was made, no preparation or 
 survevs or plots were made. The property was described in two parcels, but 
 it was not suggested that it should have been sold in the parcels thus desig- 
 nated. And if the defendants in execution had wished the property sold 
 in parcels they should have got up a scheme, maps and plots, and requested 
 the sheriff to make sale in that way." In Iowa it is provided by the code 
 that the defendant may deliver to the officer a plan of division of the land 
 levied on, and if the officer unrcasonablv refuses to sell according to the 
 plan the sale will be set aside. Taylor v. Trulock, 59 Iowa 558, 13 N. W. 661
 
 WOODS V. MONELL 
 
 749 
 
 tenant, will not, without other circumstances, raise the presumption 
 of an abuse of power in the sale. One of the witnesses says that 
 the premises, at the sale, were divided into five lots, by fences ; but 
 the other v^itness, who was also present at the sale, says he does 
 not recollect any cross fences, and if they were then visible, the 
 whole was still in the occupation of one tenant; those fences could 
 not have been intended for the evidence of any division in pur- 
 suance of the map to which the witnesses refer, and which is made 
 an exhibit in the cause ; for by the map, the ground was divided into 
 a great number of small lots ; and it bears date within three months 
 of the sale. 
 
 I see no sufficient ground, tlierefore, upon which this bill can 
 be sustained; and it must, accordingly, be dismissed as to all the 
 defendants, with costs.^* 
 
 Decree accordingly. 
 
 (1882). See also Baker v. Chester Gas Co., 2 Del. Co. 269 iiSj^), affd. 73 
 Pa. St. 116: Wellshear v. Kelley, 69 Mo. 343 I1S79J; Feilcfv. Dbrtch] 34 ArlcT 
 399 (1879) ; Howland v. Pcttey, 15 R. I. 603, 10 Atl. 650 (1887). 
 
 "As it is the duty of the officer to make an advantageous sale of the prop- 
 erty he must necessarily be invested with some discretion in the manner 
 of sale, and if he has honestly done so his judgment will usually be accepted. 
 Nelson v. Bronncnburg, 81 Ind. 193 (1881) ; Stall v. Macalestcr, 9 Ohio 19 
 (1839) ; Balfour v. Burnett, 28 Ore. 72, 41 Pac. I (1895). A division may be 
 clearly impractical, as in Craig v. Stevenson, 13 Nebr. 362, 18 N. W. 510 
 (1884), and Geney v. Maynard, 44 Mich. 578, 7 N. W. 173 (1880), where 
 upon several lots a single building has been erected, Glcason v. Hill, 65 Cal. 
 17, 2 Pac. 413 (1884), where four ditches and the water rights connected 
 therewith constituting one system were sold as one parcel. So where the offi- 
 cer receives no bids for the parcels, he may offer the prooerty en masse. Slater 
 V. Maxzcell, 6 Wall. (U. S.) 268, 18 L. ed. 796 (1867) ; White v. Crow, no U. 
 S. 183, 28 L. ed. 113 (1884); Nix v. Williams, no Ind. 234, n N. E. 36 
 
 (1886) ; Ollis V. Kirk Patrick, 3 Idaho 247 (Hash.), 28 Pac. 435 (1891) ; Hen- 
 derson v. Harness, 184 111. 520, 56 N. E. 786 (1900) ; Wilson v. Cory, 114 Iowa 
 208, 86 N. W. 289 (1901) ; Siler v. Lazvson, 163 Ky. 6, 173 S. W. 158 (1915). 
 Contra: Udell v. Kahn, 31 Mich. 195 (1875). 
 
 Where property subject to a mortgage is taken on execution, since the 
 equity of redemption can not be subdivided by separate sales of the various 
 articles or tracts, the whole ought to be sold in one parcel. Tifft v. Barton, 
 4 Denio (N. Y.) 171 (1847); Webster v. Foster, 81 Mass. (iS Gray) 31 
 (i860) ; Carpenter v. Simmons, 28 How. Pr. (N. Y.) 12, 24 N. Y. Super. Ct. 
 360 (1863) ; Worthington V. Hanna, 23 Mich. 530 (1871) ; Harvey v. Mc- 
 Adams, 32 Mich. 472 (1875) ; Plimpton v. Goodell, 143 Mass. 365, 9 N. E. 791 
 
 (1887) ; Locke v. Shrcck, 54 Nebr. 472, 74 N. W. '970 (1898) ; Knutson v. 
 Rosenberger, 81 Nebr. 761, 116 N. W. 687, 129 Am. St. 711 (1908) ; Howland 
 V. Donehoo, 141 Ga. 687, 82 S. E. 32 (1914). But in Rowley v. Brown, i Bin. 
 CEaJ_6L_USai) , a lumping sale of three properties was disallowed although 
 subject to an unapportioned ground rent. Compare Se^rgent^ v. Bedford, 
 
 - 6 W. K - C Pa -^5ZS-Xi879)_, and see Baker v. Clicster Ga^ Co., 73"Pa. St. ii5, 
 2 Del. Co. 269 ( iS7?^^yFx£clsio r SazTngs^Fu nJv^TdcTiran^o DeLjCo. (Pa.) 
 10 (1905); Cochran v. Goodelf, 131 Mass. 464 (1881) ; North v. Dearborn, 
 146 Alass. 17, 15 N. E. 129 (1888). 
 
 By the weight of authority a sale en masse instead of in parcels is 
 voidable but not void. Wheeler v. Train, 3 Pick. (Mass.) 255 (1825); 
 Williams v. Allison, 2,3 Iowa 278 (1871) ; Lambcrton v. Merchants' Nat. Bank, 
 24 Minn. 281 (1877) ; Boylan v. Kelly, 36 N. J. Eq. 331 (1882) ; Bennett v. 
 Bagley, 22 Hun (N. Y.) 408 (1880) ; Reynolds v. Tenant, 51 Ark. 84, 9 S. W. 
 857 (1888) ; Lewis v. Whitten, n2 Mo. 318, 20 S. W. 617 (1892) ; LIudepohl 
 V. Liberty Hill &c. Water Co., 94 Cal. 588, 29 Pac. 1025, 28 Am. St. 149 
 (1892); Grim v. Reinbold, 148 Pa. 446, 23 Atl. n29 (1892); Hoffman v.
 
 ;-50 EXECUTION 
 
 WORTH V. NEWLIN 
 Court of Chancery of New Jersey, 1896 
 
 36 Atlantic Reporter 30" 
 
 Grey, V. C. : This matter is presented upon exceptions filed 
 against the confirmation of a foreclosure sale under section 45, p. 
 21 1 1, Gen. Stat. 1895. The sale was made by the sheriff of Cape 
 ]\Iay county, on October 19, 1896, pursuant to the command of a 
 writ of fieri facias issued upon decree made in this foreclosure 
 suit for the sale of an hotel and lot of land, and also its furniture. 
 The execution directed the sale of a lot of land at Cape May having 
 an hotel upon it, and also of a lot of furniture, the equipment of 
 the hotel, described in the proofs as "The Cb.alfonte." The execu- 
 tion did not specify whether the land should be sold separately 
 from tlie personal property or not, nor did it direct a sale of either 
 in parcels. It described the real estate and the personal property 
 in the same terms by which tliey were described by the mortgagor in 
 the complainant's mortgage. 
 
 The objection is that the real estate and personal property were 
 sold together, and not separately.^*' The property consisted of an 
 hotel and its furniture and equipment. The exceptant is one of the 
 mortgagors. In the mortgage which she made she described the 
 lands mortgaged, and added this clause as to the personal property : 
 "And also all the furniture, carpets, bedding, household goods, 
 kitchen utensils, crockery, china, glass, wooden, silver, iron, and tin 
 ware, and other household furnishing goods now in or which may 
 hereafter be put in the hotel on the said premises." The mortgage 
 was not executed as a chattel mortgage, as if the parties considered 
 the furniture separately from the hotel, but as a real estate mort- 
 gage only, naming the furniture as if it were appurtenant to the 
 hotel. There were no judgments entered or other liens upon the 
 personal property. The complainant's mortgage was the only lien 
 upon this personal property. The furniture and utensils of the 
 hotel were treated by the parties as if they considered them to be 
 part of the hotel equipment. The v;rit directed a sale of the prop- 
 erty mortgaged in the very words which the exceptant had herself 
 used in describing it in the mortgage. The sheriff swears without 
 contradiction "that no request was made to deponent (the sheriff) 
 before or at the sale to sell said hotel and said furniture separately." 
 
 Buschman, 95 Mich. 538, SS N. W. 458 (1893) ; Margin v. JVicks, 92 Hun 155, 
 36 N. Y. S. 375, 71 N. Y. St. 145 (1895) ; Palmer v. Riddle, 180 111. 461, 54 N. E. 
 227 (1899); Dixon V. Dixon, 38 Misc. Rep. 652, 78 N. Y. S. 255 (1902); 
 Bechtel v. Wicr, 152 Cal. 443, 93 P^c. 75, 15 L. R. A. (N. S.) 549n (1907)- 
 Contra: Brien v. Robinson, 102 Tenn. 157, 52 S. W. 802 (1898), and see 
 Forbes v. Hall, 102 Ga. 47, 28 S. E. 915, 66 Am. St. 152 (1897). 
 
 "Part of the opinion is omitted. 
 
 *°In Lee v. Fellou-es & Co., 10 B. Mon. (Ky.) 117 (1849), a sale on 
 execution of land and slaves in gross was held irregular. Accord: Cresson v. 
 Stout, 17 Johns. (N. Y.) 116, 8 Am. Dec. 272 (1819).
 
 THOMPSON V. M' MANAMA 75 1 
 
 The property had, at the last two sales made of it, been sold real 
 and personal as an entirety. The weight of the evidence is that it 
 is customary in Cape May to sell hotels with their furniture as an 
 entirety. In view of these facts, and of the sheriff's opinion that 
 the property would bring a better price when sold as a whole than 
 when sold separately, I do not think the sheriff exceeded his power 
 under the writ, nor that he used his discretionary authority harshly 
 or oppressively, in selling the hotel and its equipment as an entirety. 
 The hotel was located at a public seaside resort, and the per- 
 sons who could have proved the value of the hotel and of the fur- 
 niture, if it were desired to do so, were necessarily many. The 
 sheriff testifies that in his opinion the hotel and furniture was 
 "worth more, and would sell for more, if sold together as a whole, 
 than if sold separately." I think it may well be claimed that a fur- 
 nished hotel, mortgaged as such, would produce at a public sale a 
 higher price if sold as an entirety than would result from a sale of 
 I the hotel at one bid, and its furniture separately, either as a whole 
 'or in parcels. Upon the whole matter, as submitted to me, I think 
 the exceptant has failed to show sufficient cause to justify a refusal 
 to confirm the sale. I shall therefore advise that an order be made 
 confirming the sale.^'^ 
 
 THOMPSON V. McMANAMA 
 
 Superior Court of Cincinnati, 1858 
 
 2 Disn. (Ohio) 213 
 
 Special Term. — On motion to set aside a sheriff's sale. At the 
 January term, A. D. 1858, the plaintiff obtained a decree of fore- 
 closure and sale of certain leasehold premises in the city of Cincin- 
 
 ="111 Bergin v. Hayward, 102 Mass. 414 (1869), it is said: "The law does 
 not undertake to point out in what precise manner he (the officer) shall set 
 up the property to be bidden upon. From the necessity of the case, much 
 must be left to his reasonable and fair discretion. There may be cases in 
 which it would be injudicious to sell articles singly, or in any other way than 
 by the case, or the dozen, or perhaps even by the lot. He must act in good 
 faith, so as to make the process as little oppressive to the debtor and as 
 productive to the creditors as circumstances will allow, paying of course, 
 all due regard to general usage and established practice in "like cases. We 
 cannot say, however, that it v.ould necessarily, and under all circumstances 
 be illegal or improper for the officer to set up in one lot the whole of a 
 stock in trade, or the entire contents of a workshop, or all the machinery, 
 tools and fixtures of a specific manufactory. It is certainly possible to 
 conceive of cases in which subdivision might be injurious to all parties con- 
 cerned. For instance, it might be more judicious to sell a pair of horses 
 together, at one collective price, than to sell each horse separately." Accord : 
 Matson v. Swcctser, 50 111. App. 518 (1893) ; National Bank of the Metrop- 
 olis V. Sprague, 20 N. J. Eq. 159 (1869). Compare Yost v. SviHh, lo^ Pa. St. 
 628, 51 Am. Rep. 219 (1884); S mith v. Mcldren 107 Pa St. 348 (1884); 
 Fu rhvsh v Gr,'cne. 108 Pa. St. .so.3 (188.S). wit h KloPt) v. Witm oyer. ^^ Pa' 
 St. 219, 82 Am. Dec. 561 (1862) ; Grim v. R einbold. 148 Pa. St7 Zi6. 2->, Atl. 
 1129 (1892).
 
 752 EXFXUTION 
 
 nati. The property was npi)raisesd at ij^tjoo, and the sheriff makes 
 his return that the property "was struek off and sold to Joseph 
 Temple for the sum of iJ^SOo, it beinf^ more than two-thirds of the 
 ajipraised value of said lot or parcel of land, and he being the high- 
 est and best bidder for said premises and the purchaser thereof." 
 The sheriff also indorsed upon the order of sale the following state- 
 ment of facts, viz.: 
 
 "1858, March 15. Tn this case, at the sale of the premises herein 
 descrilied, George B. Whitcomb bid for said property the sum of 
 $875, whereupon the same was knocked down and struck off to him, 
 and he paid me $25, and promised and agreed with me and the 
 other parties interested, that he would pay the balance of said pur- 
 chase money within a limited time, or that it should be returned 
 sold to the next highest bidder, and that the $25 so paid should be 
 forfeited to the interested parties; and the said George B. Whit- 
 comb having failed to pay said sum, so bid by him, I have returned 
 the sale to Uie next highest bidder (see return hereto attached), and 
 ask the court, in making their final order in said action, to direct 
 what is to be done with the $25 forfeited as aforesaid. 
 
 R. Mathers, Sheriff." 
 
 Edward !Morse, for plaintiff, 
 
 Joseph McDougal, for IMcManama. 
 
 R. D. Handy, for purchaser, Temple. 
 
 Storer, J. : The duty of the sheriff, whenever he is required to 
 sell real estate upon execution is plain. 
 
 I. He must demand and receive the purchase money from the 
 purchaser before he makes his return. ^^ 
 
 ''A sale on execution is a cash sale. Nealev v. Stewart. 10 Serg;. & R. 
 (Pa.) 207 (1823) ; Bayle y v. F rench, 2 PickTcM ^assjTS^ ( 1824) ; Robins jy. 
 5r//flj:_j2_Wiitts_ (PaT) 359 (iS34r;'Sivope v. Ar'dery, 5 Ind. 213 (1854); 
 Ex parte State, 15 Ark. 263 (1854) ; Islcr v. Andrews, 66 N. Car. 552 (1872) ; 
 Chandler v. Goodrich, 58 N. H. 525 (1879) ; Dazct v. Landry, 21 Nev. 291, 
 30 Pac. 1064 (1892) ; Simmons v. Cook, 109 Ga. 553, 34 S. E. 1033 (1899); 
 Mcherin v. Saunders, 131 Cal. 681, 63 Pac. 1084, 54 L. R. A. 272 (1901) ; 
 Rowe v. Granger, 118 App. Div. (N. Y.) 459, 103 N. Y. S. 439 (1907)- If the 
 officer extends credit to the purchaser he does so at his own risk. Denton v. 
 Livingston, 9 Johns. (N. Y.) 96, 6 Am. Dec. 264 (1812) ; McCluskey v. Mc- 
 Neely, 8 111. (3 Gilm.) 5/8 (1846) ; Harper v. Fox^ Watts & S,j 1Pa.') 142 
 (1844); Disston v. Strauck, 42 N. J71Z:~S4Sr 2 Ky. Law Rep. 100 (1880); 
 McLendon v. Harrell, 67 Ga. 440 (1881) ; Robinson v. Brennan, 90 N. Y. 208 
 (1882); Willbanks V. Untriner, 98 Ga. 801, 25 S. E. 841 (1896); Qomnion- 
 ■Li'ealthjv,jComrey,JLZAX2::^ St. 355, 34 Atl. 581 (1896). In a number of juris- 
 dictions, if the execution creditor becomes the purchaser the officer may- 
 credit the amount of the execution debt in payment of the bid. Nichols v. 
 Ketcham, 19 Johns. (N. Y.) 84 (1821) ; Russell v. Gibbs, 5 Cow. (N. Y.) 390 
 (1826) ; Mark_^ v. ^smer, 138 P a^_St^, 20 Atl. 841 (1890) ; Krtunhkaar v. 
 Ye wdall, 153 Pa. StT^b, 20 A 1172 19 TI893) ; see Pa^Ac t of Apr il 2a_jB46. 
 P. L. 411, 19 P. ^ L. Dig. of Dec. 34350; Wilson v. American Phot jtJidief 
 Printitifi Co.. A Wkly. Notes Ca s. (Pa.) 13 (I877) ; Boots v. Ristine, 146 Ind. 
 75, 44 X. E. 15 (1896). Compare Watson v. Hoboken Planing Mills Co., 156 
 App. Div. 8, 140 N. Y. S. 822 (1913). If there is a dispute between creditors 
 as to the application of the proceeds of the sale the officer should brine: the 
 money into court. Fozvler v. Pearce, 7 Ark. 28, 44 Am. Dec. 526 (1846) ; 
 Williams v. Smith, 6 Cal. 91 (1856) ; Hotchkiss v. Homan, 11 Pa^J3iiiLJR. 
 43 (ij joi) ; Atlanta Trust &c. Co. v. Nelms, 115 Ga. 53, 41 S. E. 247 (1902).
 
 THOMPSON V. M MANAMA 753 
 
 2. He must sell to the highest and best bidder.^^ 
 
 3. If the purchaser neglects or refuses to pay the purchase 
 money, or if he is not a real bidder, and it is evident that he has 
 made his bid to postpone the sale or delay the creditor in the collec- 
 tion of his debt, it is the duty of the sheriff to disregard his bid and 
 offer the property again for sale, as if no previous bid had been 
 made. 
 
 It v/as held in Bishee v. Hall, 3 Ohio 464, that when the pur- 
 chaser refuses to complete tlie contract by paying the money, the 
 sheriff was not bound to make himself liable by returning an actutal 
 sale and trusting to a recovery against the purchaser, and this rule 
 is affirmed in Russell v. Gibbs, 5 Cow. (N. Y.) 396, where it is said, 
 "the officer may refuse to deliver the property until he receives the 
 purchase money, and if tlie money is refused, he may re-sell the 
 property." We find the same principle decided in U^ortman v. Con- 
 yngliam, i Pet. (C. C.) 243, where Judge Washington states, "if the 
 purchasers refused to comply with the terms of sale, it was the 
 same thing as if the land had not been struck off to them ; and the 
 marshal might, and it was his duty to offer the property again for 
 sale."-*^ When, however, the officer returns that the property has 
 been struck off to a purchaser, and a new agreement is made at the 
 time, by which the payment of the price is postponed to a future 
 time, and upon the nonperformance of vv'hich the sale is to be set 
 
 ^''At a sheriff's sale A bid three dollars, B bid three dollars and a half, 
 but the sheriff refused to cry B's bid and knocked off the property to A. 
 The sale was set aside. Duffy v. Rutherford, 21 Ga. 363 (1857). The sale 
 should be to the highest and best bidder. Parker v. Pratt, 8 N. J. L. 104 
 (1849) ; Lane v. White, 12 Wis. 381 (i860) ; United States v. Vestal, 4 Hughes 
 (C. C.) 467 (1882) ; Svi'ires ^v. Brotherli ne. 41 Pa. St. t3 5,__8o Am. Dec. 601 
 (1861) semble. The officer is not obliged to accept the bid of an irresponsible 
 person. State v. Johnson, 2 N. Car. (Hayw.) 293 (1796) ; Den ex dem. 
 Flomerfelt v. Zcllcrs, 7 N. J. L. 153 (1824) ; Kinney v. Showdy, i Hill (N. Y.) 
 544 (1841) ; Hobbs v. Beavers, 2 Ind. 142, 52 Am. Dec. 500 (1850) ; Michel 
 V. Kaiser, 25 La. Ann. 57 (1873); Hotchkiss v. Homan. 11 Pa. Dist. R. 43 
 (1901). _ 
 
 ^°The defaulting bidder may be held to his contract in an action by the 
 officer to recover the amount of the bid. Friedly v. Schc cts, 9 Serg. &_ R. 
 (Pa.) 156, II Am. Dec. 691 (1823); Chap pell v. 'Uann, 2T'Bar57T^- Y-) 17 
 (1855) ; Armstrong v. Vroman, 11 Minn. (Gil. 142) 220, 88 Am. Dec. 81 
 (1866) ; Webb v. Perkins, 60 111. App. 91 (1894). Or the officer may resell 
 the property. Wilson v. Loring, 7 Mass. 392 (1811) ; Bisbee's Lessee v. Hall, 
 3 Ohio 449 (1828) ; Den ex dem. Smith v. Young, 12 N. J. L. 300 (1831) ; 
 People V. Hays, 5 Cal. 66 (1855) ; New Orleans v. Pellerin, 12 La. Ann. 92 
 (1857) ; Croacher v. Oesting, 143 Mass. 195, 9 N. E. 532 (1887) ; Bradley v. 
 Geo. Challoner's Son's Co., 103 111. App. 618 (1902). And, generally, the 
 defaulting bidder will be held liable for the difference between his bid and 
 the amount obtained. Robinson v. Garth, 6 Ala. 204, 41 Am. Dec. 47 (1844) ; 
 Qjskell V. Aforn .s^^LWalis_^L.S..Xl-a.) 32 (1844.) ; Williams v. Lines, 7 Blackf. 
 (Ind. J 46 (1843) ; Fgr stcr V. H ayiy.cn, 26 Pa. 2 66^^1856) ; Herdman v. Cooper, 
 39 111. App. 330 ( i8go)' semble ;/iarnt?.y V. BhitKcnthal, loi Ga. 598, 28 S. E. 
 1017, 65 Am. St. 339 (1897) ; Hu ghes v. Millcr,ji86 Pa. St, 32S 40 Atl. 492 
 (1898) ; Hartman v. Pemberiofl^jLSz- Siiper^t. 222 (1904). Contra : Gricr 
 V. Yonfs, 50 JN. Car. 37~l (1858); Roberts v. Westbrook, i Coldw. (Tenn.) 
 115 (i860) ; Harvey & Keith V. Adams, 9 Lea (Tenn.) 289 (1882). And the 
 rule does not apply where the terms of sale are altered. Hare v. Bedell, 98 
 Pa. St. 48^ (1881). ^ - 
 
 48 — Civ. Prog.
 
 J> 
 
 EXECUTION 
 
 aside, the power of the officer ceases over the process and he can 
 not. upon the same process, offer the property again for sale, much 
 less disregard the sale and return tliat the next highest bidder is the 
 purchaser. 
 
 The sheriff's duty is clearly defined: he must discharge it as 
 tlie law requires him to do; he can not imi)ose new conditions or 
 make any private agreement connected with the sale.*^ If he pre- 
 sumes thus to act, his proceedings will be set aside or disregarded 
 altogether, as the court, from which execution has issued, may think 
 proper. We have no doubt, nevertheless, in every proper case, that 
 the person to whom the property has been struck down, as the pur- 
 chaser, may, at any time before the confirmation of the sale, assign 
 his bid to another, and tlie act will be confirmed by the court. This 
 is the rule in Kentucky; Jamison v. Tudor, 3 B. ISIon. (Ky.) 357; 
 Fried e v. Veach, i Daiia (Ky.) 212 ; and it has long been regarded as 
 tlae law in Ohio ; Ewing v. Higby, 7 Ohio pt. I, 204.*- 
 
 But in tlie case before us the sale appears to have been made to 
 one party, and afterwards, widiout the property being re-offered, 
 anotlier person is returned as the next highest bidder, and entitled to 
 tlie purchase ; and this, too, by an understanding between the parties 
 to the sale. Such a proceeding we can not judicially sanction. The 
 sale must be set aside and a new order of sale issue to the sheriff.*^ 
 
 ]\Iotion granted and sale set aside. 
 
 "A conditional bid is unauthorized and should be disregarded by the 
 officer. FaMVxev. Sedgw ick. 8 Pa. St. 407 (1848) ; Moore v. Owsley, 37 Tex. 
 603 (1872); Dewey M. Willoughhy, 72 111. 250 (1874); Nebraska Loan & 
 Trust Co. v. Hamer, 40 Nebr. 281, 58 N. W. 695 (1894). Nor can the sheriff 
 impose terms different from those employed by law. Stevenson v. Black, 
 
 I N. J. Eq. 338 (1831); ffrllnnn V Hellwnn. 1. Rawle (P a.) 440 (1834); 
 Tn rr Br.-inyx Appeal, ^o Pa. St. 348 (1858) ; Cable v. Byrne, 38 Minn. 534, 
 38 N. W. 620, 8 Am. St. 696 (18S8). 
 
 "Accord: People ex rel. Newell v. Muzzy, I Denio (N. Y.) 239 (1845) ; 
 Trotter v. Nelson, l Swan (Tcnn.) 7 (1S51) ; Carpenter v. Sherfy, 71 111. 427 
 (1874) ; Green v. Clark, 31 Cal. 591 (1857) ; IVood v. Morehouse, 45 N. Y. 
 368 (1871); Conger v. Bahcock, 87 Ind. 497 (1882) ; Ward v. Lozvndes, 96 
 N. Car. 367, 2 S. E. 591 (1887) ; Parlcr v. Johnson, 81 Ga. 254, 7 S. E. 317 
 (1888) ; Oliver v. Dougherty, 8 Ariz. 65, 68 Pac. 553 (1902). 
 
 *' Accord: Swortzell v. Martin, 16 Iowa 519 (1864) ; Mathews v. Chfton, 
 13 Sm. & M. (Miss.) 330 (1850); Dazet v. Landry, 21 Nev. 291, 30 Pac. 
 1064 (1892) ; Kimkel v. Ebv. 7 Pa. P. R. 672 (1898) ; HoJsMiss. V H nn u^n, 
 
 II Pa. Dist/ ^.^.4xXl£iP0 • Contra: Zantzing cr v. Pole, i Pall. (Pa.) 410. 
 iJU ed. 204 (1789) semblc; Cnmmings v. MacGill, 6 N. Car. (2 MurphT) 357 
 (1818) ; ." iouth V. Lavens.6\V. N. C as^Pa.) 528 (1878) ; Hous^m m v. Potts , 
 40 W. N. CJPaJ ^52 0897)-
 
 GULICK V. WEBB 755 
 
 WILLIAM D. GULICK v. MARY WEBB ET AL. 
 
 Supreme Court of Nebraska, 1894 
 41 Nebr. 706 
 
 Appeal from a decree of the District Court of Lancaster county, 
 confirming a sheriff's sale of certain lots in the city of Lincoln, sold 
 under an order of sale in an action to foreclose certain mechanics' 
 and mortgage liens. W. H. Tyler was the purchaser for $13,000, 
 which was more than two-thirds of the appraised value.** 
 
 Harrison, J.: The objection upon which the appellants rely 
 is as follows : "An unlawful combination was entered into by certain 
 of the claimants and lien-holders to prevent competition at the 
 bidding or crying of the sale; that such combination was carried 
 out and rival bidding was prevented, to the injury of the defendant 
 and certain of the creditors." The evidence (which consists of affi- 
 davits of various persons) discloses that five of the lienholders, 
 whose liens were of the liens foreclosed in the action, no one of 
 them being of sufficient financial ability to purchase the property, 
 entered into an agreement or combination to the effect that one of 
 their number, William Tyler, was to bid at the sale in behalf of all 
 the five lienholders, and bid until the amount offered for the prem- 
 ises would equal the mortgage liens of one Gulick, w^hich was prior 
 to the liens of the five v/ho entered into the agreement, and eighty 
 per cent, of the aggregate amount of their liens. A careful reading 
 and analysis of all the evidence contained in the affidavits presented 
 and used during the hearing in the district court, as preserved in 
 the bill of exceptions and record filed in this court, satisfies us 
 that the judge who rendered the decision and confirmed the sale 
 was fully warranted in the conclusion which he evidently formed 
 as a basis for the disposition made of the matters in controversy, 
 that the agreement between the five lienholders was one by which 
 they combined to jointly purchase the property for their common 
 benefit, and not an agreement not to bid or to avoid competition or to 
 deter others from bidding or competing at the sale ; that in so com- 
 bining they had no fraudulent or illegal intent or purpose. This being 
 established, then the question arises whether such an agreement is 
 forbidden by or is contrary to law, and sufficient to set aside the 
 sale to the trustees acting or bidding for the parties to such con- 
 tract. We have no doubt that in the earlier cases in which this ques- 
 tion arose and was decided, some courts of high authority have an- 
 nounced a doctrine which would avoid this sale solely upon the 
 grounds of the formation of such an association, regardless of the 
 intent or motives of the parties, assigning as a reason that its neces- 
 sary and unavoidable effect is to tend to discourage or prevent com- 
 petition ; but the later cases have in effect overruled the above doc- 
 trine and established what we consider a better and more practical 
 
 "The arguments of counsel and part of the opinion are omitted.
 
 756 rXF.Cl'TIOX 
 
 one, that wlicre an examination of all the facts and circumstances 
 shows tlic object of the association was to enable the parties to com- 
 pete where without combinin;^ they could not do so, formed for an 
 lionest purpose and with such an intent, and not with any view to 
 preventinc: competition, or deterrinsr bidders or "chilling bids," the 
 sale will bo tipheld and completed.'^ 
 Decree aflirmed. 
 
 "At sales on execution tlic piiffinc;- or chillinq: of the biddinjx is fraudu- 
 lent. Moncricff v. Goldshorough, 4 H. & IM. (Md.) 281. i Am. Dec. 407 
 (1700); D(2AaJklsatV-\^-.Mj:Jiny^ I Browne (Pa,) 346 (1811); Crowdcr v. 
 AHsti». 2 Tar. & P. 208 (1825) ; Rex v. Marsh, 3 Y. & J. 331 (1829) ; Bunts 
 V. Cole. 7 Blackf. (Ind.) 265, 41 Am. Dec. 226 (1844) ; Carson v. Laiv, 2 Rich. 
 Eq. (S. Car.) 296 (1846) ; llcrndon v. Gibson, 38 S. Car. 357, 17 S. E. 145, 
 20 L. R. A. 545, 37 Am. St. 765 (1802); Toole v. Johnson, 61 S. Car. 34, 
 39 S. E. 254 (1901). And, generally, if practices are resorted to by a bidder 
 or combination of bidders the object of which is to stifle fair competition 
 the sale will be set aside. Jones v. Caszvell, 3 Johns. Cas. (N. Y.) 29, 2 Am. 
 Dec. 134 (1802) ; Thomt'son v. Davics, 13 Johns. (N. Y.) 112 (1816) ; Troup 
 V. Wood, 4 Johns. Ch. (N. Y.) 228 (1820) ; Mills v. Rogers, 2 Litt. (Ky.) 217, 
 
 13 Am. Dec. 263 (1822) ; Hazcley v. Cramer, 4 Cow. (N. Y.) 717 (1825) ; 
 Froncberger v. First Nat. Bank, 203 Fed. 429 (1913) ; Den ex deiii. Smith V. 
 Greenlee, 2 Dev. L. (N. Car.) 126, 18 Am. Dec. S64 (1829) ; Sniull v^ Jones. 
 I Watts & S^XCaJ,i28 (1841) ; Hamburgh Mfg. Co. v. Fdsall, 5 N. J. Eq. 249 
 (1845) ; Vantrees V. Hyatt, 5 Ind. 487 (1854) ; Slinghuff y. Eckel, 24 Pa^t. 
 472 (1853); IVooton V. Flinkle, 20 AIo. 290 (1855^; Vocks v. Icard', 7 \\'alL 
 (U. S.) 559, 19 L. ed. 275 (1868) ; National Bank of the Metropolis v. Sprague, 
 20 N. J. Eq. 159 (1869) ; Packard v. Bird, 40 Cal. 378 (1870) ; Gage v. Graham, 
 57 111. 144 (1870) ; Griffith v. Judge, 49 Mo. 536 (1872) ; Underwood v. Mc- 
 )'eigh, 23 Grat. (Va.) 409 (1S73) ; Barrett v. Bath Paper Co., 13 S. Car. 128 
 (1879) ; Lau-nin v. Bradley, 13 Mo. App. 361 (1883) ; Phehs v. Benson, j6t 
 P a. St. 418. 20 Atl. 86 (1894) ; Lennon v. Heindcl, 56 N. J. Eq. 8, 27 Atl. 147 
 ri897) ; Hurst v. Fisher, 64 Ohio St. 530, 60 N. E. 626 (1901) ; Fislur v. 
 Hampton Transp. Co., 136 Mich. 218, 98 N. W. 1012, 112 Am. St. 358 (1904) ; 
 Fletcher v. Johnson, 139 Mich. 51, 102 N. W. 278, 11 1 Am. St. 401 (1905) ; 
 Coal & Coke R. Co. v. Mar pie, 70 W. Va. 136, 73 S. E. 261, 38 L. R. A. (N. 
 S.) 7i9n, Ann. Cas. 1913 D, 959n (1911). But an a.crreement by two or more 
 persons to purchase for their joint benefit is not unlaw-ful where the purpose 
 of the combination is honest, as to prevent a sacrifice of the property, or 
 where, on account of the magnitude of the sale, purcliasers who would other- 
 wise be excluded are enabled to participate in the bidding. Phippen v. Stick- 
 ney, 3 Mete. (Mass.) 384 (1841); Smull y. Jones. 6 W :ittg R{ S^XP? ^ 122 
 (1843); Szvitzer v. Skiles, 8 111. (3 Gilm.) 529, 44 Am. Dec. 72^ (1846); 
 James V. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743 (1851) ; Bellows v. Rtissell, 20 
 N. H. 427, 51 Am. Dec. 238 (1845) ; Kearney v. Taylor, 15 How. (U. S.) 494, 
 
 14 L. ed. 787 (1853); Buckner v. Chamhlis, 30 Ga. 652 (i860); Young_y. 
 Snyder, 3 Grant Cas. (Pa .) 151 (1852) ; Jenkins v. Brink, 30 Cal. 586, 89 Am. 
 ^6^^34^1866) ; IVickFFv. Hoppock, 6 Wall. (U. S.) 94, 18 L. ed. 752 (1867) ; 
 Marie v. Garrison, 83 N. Y. 14 (1880) ; IFunt v. Ftlintt, 80 Ind. 245, 41 Am. 
 Rep. 794 (1881); Oram V Rothermel, 98 Pa. St. 30 (1881); Pennsylvattia 
 Transp. Co. y. Pitt. '^hurjjh^LC^ J?- Co., fi W. N. C as/(I^a.) 35 (1881) ; Smith v. 
 t:ilman,'s^ ^fd. I83742 Am. Rep. 329 (1881) ; Maffet v. I jams, 103 Pa. St._266 
 C1883); Hopkins v. Ensign, \22 N. Y. 144, ' 25 IS! . E. 306, 9 L. R. A. 731 
 (1890) ; Fidelity Trust Co. v. Mobile St. R. Co., 54 Fed. 26 (1893) ; Woodruff 
 V. Warner, 175 Pa. St. 302, 34 Atl. 667, 52 Am. St. 845 (1896), question of 
 actual Iraud is fdr the jury; De Baun v. Brand, 61 N. J. L. 624, 41 Atl. 958 
 (1898) : Munson v. Magee, 22 N. Y. App. Div. Z2>2,< 47 N- Y. S. 042 (1897), 
 affd. 161 N. Y. 182 : Bradjny. O'Neil. 18 3 Pa. St. 462. 38 Atl. 1023,63 Am. St. 
 761 (1898) ; Satterfeldv. KTndley, 144 N. Car. 455, 57 S. E. 145, 15 L. R. A. 
 ex. S.) 399n, 12 Ann. Cas. 1098 (1907) ; Snouffer v. Heisig (Tex.), 130 
 S. W. 912 (1910).
 
 LEVI V. GREER 757 
 
 LEVI V. GREER 
 
 Supreme Court of Pennsylvania, 1912 
 236 Pa. 475 
 
 Appeal, No. 166, Jan. T., 1912, by W. N. Seibert, from order 
 of C. P. Erie Co., Feb. T., 1912, No. 60, setting aside sheriff's sale 
 in case of Isaac Levi and /. P. Trivitt v. R. M. Greer, administrator 
 of the estate of Elsie A. Greer, deceased, and R. M. Greer, et al. 
 
 Per Curiam : The setting aside, or the refusal to set aside a 
 sheriff's sale is in the sound discretion of the court and its order 
 will not be disturbed unless it appears that there was manifest 
 error. While inadequacy of price is not by itself sufficient to justify 
 the court in setting aside a sheriff's sale, yet where there is great 
 inadequacy, the court may seize upon other circumstances in order to 
 give relief; Stroup v. Raymond, 183 Pa. 279; Light v. Zeller, 195 
 Pa. 315. In this case there was great inadequacy in price and a mis- 
 description of the property by including seven and a half acres not 
 owned by the defendant and not subject to the lien of the judgment, 
 which left some uncertainty as to what a purchaser would take by 
 the sale and clouded tlie title of a third party who joined in the 
 application to set aside the sale. There was, in addition to this, con- 
 duct on the part of the purchaser, who refused shortly before the 
 sale to carry out his agreement to buy a part of the premises at pri- 
 vate sale and who thus prevented the defendant from paying the 
 judgment, which indicted unfairness by him and a purpose of mis- 
 lead. 
 
 The order is affirmed at the cost of the appellant.*® 
 
 *''Mere inadequacy of price is not sufficient in itself to justify the setting 
 aside of a judicial sale of propert3^ Livingston V. Byrne, 11 Johns. (N. Y.) 
 555 (1864) ; Mcrcercau v. Prcst, 3 N. J. Eq. 460 (1836) ; Draine v. Smelser 
 & Henderson, 15 Ala. 423 (1849) ; Brittin V. Handy, 20 Ark. 381, 73 Am. Dec. 
 497 (1859) ; Smith v. Duncan, 16 N. J. Eq. 240 (1863) ; Kerr v. Havcrstick, 94 
 Ind. 178 (1883) ; Coolbaugh v. Rocmer, 32 Minn. 445, 21 N. W. 472 (1884) ; 
 Central Pac. R. Co. v. Creed, 70 Cal. 497, 11 Pac. 772 (1886) ; Smith v. 
 Perkins, 81 Tex. 152, 16 S. W. 805, 26 Am. St. 794 (1891) ; Barling v. Peters, 
 134 111. 606, 25 N. E. 765 (1890) ; Morrisse v. Inglis, 46 N. J. Eq. 306, 19 Atl. 
 16 (1889) ; Cchurre v. Pearson, 27 App. Div. 621, 50 N. Y. S. 112 (1898) ; 
 Clark V. Glos, 180 111. 556, 54 N. E. 631, 72 Am. St. 223 (1899) ; Ackerman v. 
 Hendricks, 117 Iowa 106, 90 N. W. 522 (1902) ; Westmoreland Build ing_ Assn. 
 v. Ncsbit. 21 Pa. S uper. Ct. 150 (1902) ; J^ylej^i^,u£xmstr ong, 2 35 Pa. 224, 83 
 Atl. 577 (1912). JBut courts are not slo\v^to seizeupoiT^t^her circumstances 
 impeaching the fairness of the transaction, as a cause for vacating it, espe- 
 cially if the inadequacy be so gross as to shock the conscience. Reed V. 
 Carter, 3 Blackf. (Ind.) 376, 26 Am. Dec. 422 (1834) ; Graff am v. Burgess, 
 117 U. S. 180, 6 S. Ct. 686, 29 L. ed. 839 (1885) ; Fletcher v. McGill, no Ind. 
 395, ID N. E. 651, II N. E. 779 (1886) ; Philli ps v. IVUson, i64j^a^ St 350, 30 
 Atl. 264 (1S94); Davis v. McCann, 143 Mo. 172, 44 S. W. 795 (1897); 
 Simmons v. Sharpe, 138 Ala. 451, 35 So. 415 (1903); Kinkaid V. Rossa, 
 31 S. Dak. 559, 141 N. W. 969, Ann. Cas. 1915D, i098n (1913). So also, if the 
 sale has been attended by an irregularity. Booth v. Webster, 5 Harr. (Del.) 
 129 (1848); Byers v. Snrget, 19 Plow. (U. S.) 303, 15 L. ed. 670 (1856); 
 Schroeder V. Young, 161 U. S. 334, 40 L. ed. 721 (1895) ; Lennon v. Hcindel, 
 56 N. J. Eq. 8, 2>7 Atl. 147 (1897) ; Hm^l V.Lyans^ 41 Pa, Super. Ct._28s 
 (1909) ; Kissinger V. Zieger, 138 Wis. 368, 120 N. W. 249 (1909) ; Shipley v. 
 Shamwell, 41 App. D. C. 267 (1914),
 
 758 KXECUTION 
 
 JONES V. GOODBAR 
 
 Supreme Court of Arkansas, 1895 
 
 60 Ark. 182 
 
 C. B. Goodbar issued an execution on a judgment confessed on 
 a promissory note for $150 before a justice of the peace and placed 
 tlie same in tlie hands of J. T. Jones, a constable. On January 26, 
 1891, tlie constable returned the execution "not satisfied" and the 
 justice renewed it for a year. On January 26, 1892, the constable 
 again brought the execution to the justice and made oral report that 
 it was still unsatisfied, but made no written return thereof. After- 
 wards the appellee recovered judgment against the appellants, the 
 constable and his surety, for failure to return the execution. A 
 motion for new trial having been overruled an appeal was taken.^^ 
 
 RiDDiCK, J. : The question to consider is whether the bringing 
 back of the writ on the return day, and the oral report by the con- 
 stable to the justice that it was still unsatisfied, constituted a return 
 tliereof, witliin the meaning of the statute. 
 
 "A return," says Mr. Herman, "may be considered as the cer- 
 tificate of the officer to whom any process is directed, stating what 
 he has done in obedience to the command therein given, or the 
 reason of his neglect in not fulfilling them, and is a material part of 
 his duty." Herman on Ex., p. 373. Our statute requires this return 
 to be made in writing, and that the name of the officer be signed to 
 his return. Sand. & H. Dig., section 6003. But this would probably 
 be the law, even without the statute. Herman on Executions, p. 236. 
 
 It is evident that one object in requiring the officer to make a 
 return of the writ is that the court and parties interested may know, 
 first, whether the writ has been obeyed, and, if so, in what manner, 
 and if not executed, the reason of the officer for failing to execute 
 it. To this end the written certificate concerning these facts is re- 
 quired. The bringing back of the writ by the officer, and filing it in 
 the office of the justice or clerk from which it issued, together with 
 this written certificate of his proceedings under it, indorsed on the 
 writ or upon some paper attached thereto, constitute in law the re- 
 turn of tlie writ. Making the indorsement without the actual return 
 of the writ is not a return, nor is it a return to bring back and file 
 the writ without the certificate of the officer required to be indorsed, 
 for both togetlier constitute the return, within the meaning of the 
 statute. State v. Melton, 8 Mo. 417; Nelson v. Brown, 23 Mo. 13; 
 Beall V. Shattuck, 53 Miss. 361 ; Freeman on Ex. (2d ed.), section 
 353. We therefore conclude that the circuit court, under the facts 
 of this case, properly held that the officer failed to return the writ.*^ 
 
 *'The arguments of counsel and part of the opinion of the court are 
 omitted. There was error on another point. 
 
 *'Accord: Ptirrinqton v. Loring, 7 Mass. 388 (1811); Shover^ V. Funk, 
 5 Wat^jLiCPa.) 457 (1843). ^^; 
 
 "^ "It is the diity of a sheriff or other ministerial officer to return all writs 
 on the return day thereof with a short account in writing endorsed by him
 
 JONES V. GOODBAR 759 
 
 thereon of the manner in which he has executed the same, or why he has done 
 nothing. A return upon an execution, which is sufficient in law ; that is, a 
 return which the officer has the right to make, is conclusive between the 
 parties, and they are interested to have the officer perform, his full duty, to 
 make his return and file the writ with its proper custodian. Neither of them 
 can be deprived of the return by his neglect or failure to return the writ by 
 the return day, and the court in which the judgment was obtained, upon which 
 the execution issued, may, if the writ be not returned in due time, award a 
 rule against the officer to return it, and if he do not obey the rule, compel 
 him to make his return upon the writ and to return it by attaching and fining 
 him for contempt." Per Riely, T., in Rozve V. Hardv, 97 Va. 674, 34 S. E. 
 625, 75 Am. St. 811 (1899) ; People v. Everest, 4 Hill (N. Y.) 71 (1843); 
 Tidd's Practice (oth ed.) 307; Clerk's Case, Cro. Eliz. 873 (1601) ; M or eland 
 V. Leigh, i Stark N. P. 312 (1816) ; Jupp v. Cooper, L. R. 5 C. P. D. 26 
 (1879). A failure by the officer to make a return will, in most states, render 
 him liable to an action for damages and in some states to a penalty. White 
 V. Wilcox, I Conn. 347 (1815) ; Bnrk v. Campbell, 15 Johns. (N. Y.) 456 
 (1818) ; McGregor v. Brown, 22 Mass. (5 Pick.) 170 (1827) ; Runleit v. Bell, 
 5 N. H. 433 (1831) ; Keith v. CommonzvealtJi, 5 J. J. Marsh. (Ky.) 360 
 (1831) ; Cnm monzvcalth v. McCoy. 8 Watts (Pa..) 153, 34 Am. Dec. 445 
 (1839) ; Pardee v. Robertson, 6 Hill (N. Y.) 550 (1844) ; Lawrence v. Rice, 
 53 Mass. (12 Mete.) 535 (1847) ; Bach man v. Fc nsj ennacher. 112 Pa. St. 331, 
 4 Atl. 546 (1886) ; McGiiire v. Bdusher, 52 iSI. YTApp. Div. 276,"55~Tsrr^. S. 
 382 (igoo) ; Bell v. Wycoff, 131 N. Car. 245, 42 S. E. 608 (1902) ; Bickham v. 
 Kosminsky, 74 Ark. 413, 86 S. W. 292 (1905). So also for a false return. 
 Weld V. Bartlett, 10 Mass. 470 (1813) ; Clough v. Monroe, 34 N. H. 381 
 (1857) ; Long v. Towl, 41 Mo. 400 (1867) ; Wright v. Darlingt on joSJ'a^.St. 
 372 (1885) ; Rcmick v. Wentworth, 89 Maine 392, 36 Atl. 622 ~0^6). 
 
 Failure to make return, and delays and defects in the return of the writ 
 do not, in most jurisdictions, affect the purchaser's title. .SjmtUjv^Mickleyj 
 tRawle(Pa.) 95 (1828); Jackson ex dem. Ten Eyck v. Walker, 4 Wend. 
 (N. Y.r452 (1830); Doe ex dem. Wolf v. Heath, 7 Blackf. (Ind.) 154 
 (1844) ; Forrest & Lyon v. Camp, 16 Ala. 642 (1849) ; Hinds' Heirs v. Scott, 
 II Pa. St. IQ^I Am. Dec. 506 (1849) ; Phillips v. Coffee,l7~mLSA, di^ra. 
 Dec. 357 (1855) ; Low v. Adams, 6 Cal. 277 (1856) ; Phillips v. Schiffer, 64 
 Barb. (N. Y.) 548, 7 Lans. 347 (1873); Murray v. Chadzvick. ^2 Vt. 293 
 (1880); Willis V. Smith, 66 Tex. 31, 17 S. W. 247 (1886). But in states 
 where the practice of extending land on execution prevails, it is essential that 
 the return be filed in conformity with the statute. Bott v. Burnell, 11 Mass. 
 163 (1814); Prescott V. Pettee, 3 Pick. (Mass.) 331 (1825); Mitchell v. 
 Kirtland, 7 Conn. 229 (1828); Walsh v. Anderson, 135 Mass. 65 (1883). 
 In Massachusetts: "It is well settled that a title to real estate, acquired 
 under a judgment and execution can not be established unless the execution 
 is returned into court, but as the statute does not fix the time within which 
 this must be done, the return will be effectual if it is made at any time 
 before the execution is put in evidence in the case in which it is relied on. 
 It is equally true that an officer can not justify an attachment of goods on 
 mesne process unless he returns his writ into court." Fletcher v. Wrighton, 
 184 Mass. 547, 69 N. E. 313 (1904). See also Firth v. Haskell, 148 Mass. 501, 
 20 N. E. 164 (1889) ; Rand v. Cutler, 155 Mass. 451, 29 N. E. 1085 (1892).
 
 760 r.XKCUTION 
 
 SECTION 8. TITLE OF THE PURCHASER 
 
 HARDENBURG v. BEECHER 
 
 Supreme JJouRT or Pennsylvania, 1883 
 
 104 Pa. St. 20 
 
 Error to the Court of Common Pleas of Warren County, of 
 January term, 1S83, No. 382. 
 
 Rc])lcvin, brought November 6, 1882, by Moses Beecher and 
 \\'. H. Copcland against G. W. Hardenburg and B. F. McClure, for 
 "one hundred barrels crude petroleum." The property was re- 
 plevied and a claim property bond given. Plea, non cepit, and prop- 
 erty.^^ 
 
 The interest of Merrill and Markert in twenty-five acres of land 
 under articles, was taken in execution on three several writs and 
 sold July 26, 1882, to the defendants, G. W. Hardenburg and B, F. 
 McClure, for the sum of $1,100, and the deed therefor was ac- 
 knowledged on November 2y, 1882. The costs of sale only were 
 then paid, but after tlie acknowledgment of the deed the balance of 
 the bid, on application to court, was applied upon the purchase 
 money judgments of Plardenburg, McClure and M. D. Archibold. 
 
 At the date of the sale to said Hardenburg and McClure, July 
 26, 1882, there were two oil wells on said twenty-five acres, flow- 
 ing several barrels of oil per day. Soon after said sale defendants 
 took possession of said twenty-five acres, said Merrill and Markert 
 having abondoned tlie same, repaired the tanks and wells, and saved 
 the flow of oil. 
 
 The plaintiff's, Beecher and Copeland, issued an alias fieri facias 
 on their judgment, September 2, 1882, to No. 13, December term, 
 1882, and levied on the oil in question in tanks on the land, being oil 
 produced on said twenty-five acres from! the said wells, after the 
 sale of the said twenty-five acres by the sheriff to the defendants, 
 and before the acknowledgment of the deed for the same land to 
 them. Said oil was levied on October 16, 1882, and sold as the 
 property of Merrill and Markert to plaintiffs October 26, 1882, being 
 one hundred barrels crude petroleum, sold at ninety cents per bar- 
 rel. Said oil was sold in tanks on the land then in possession of the 
 defendants. The defendants claimed the oil by virtue of the sheriff's 
 sale to them of the land as above stated, and refused to surrender 
 the same to the plaintiffs, whereupon plaintiffs brought this action 
 of replevin for said one hundred barrels of crude petroleum. 
 
 Judgment, on case stated, was entered for the plaintiff for ninety 
 dollars and defendants took this writ of error. 
 
 Clark, J. : A purchaser at a sheriff's sale, before his deed has 
 been acknowledged, has an inceptive interest in the land; Morrison 
 v. IVurtz, 7 Watts. (Pa.) 437; such an interest as will be bound by a 
 
 "Part of the reporter's statement of facts is omitted.
 
 HARDENBURG V. BEECHER 761 
 
 judgment; Rohh v. Mann, i Jones (Pa.) 300. The subsequent ac- 
 knowledgment and delivery of the sheriff's conveyance inures to the 
 benefit of lien creditors, and, as in the case of a private individual 
 sale, the incumbrancer by relation has the benefit of his security to 
 the extent of the v^hole estate; such an estate is attended with the 
 ordinary consequences of sale by an individual; Hawk v. Stoiich, 5 
 Serg. & R. (Pa.) 161 ; Stephen's A pp., 8 W. & S. (Pa.) 188; Slater's 
 A pp., 4 Cas. (Pa.) 170. The title acquired under the sheriff's deed 
 relates back to the time of the sale, not merely to the date of the 
 deed;^° Hoyt v. Koons, 7 Harr. (Pa.) 277; but not so as to wholly 
 divest the legal ownership of the debtor, who, until the acknowl- 
 edgment of the deed, is entitled to the possession, with all its attend- 
 ant advantages; Garrett v. Dewart, 7 Wr. (Pa.) 342. A judgment 
 entered against the debtor after the day of the sale is not a lien upon 
 the land, although the deed to the purchaser was not acknowledged 
 until a subsequent time;^^ Hahn v. Rhoads, i P. & W. (Pa.) 484. It 
 follows as the result of all these cases, that if the deed be subse- 
 quently acknowledged, the vendee has such inceptive title by his mere 
 purchase as will be bound by the lien of a judgment, whilst the debtor 
 has no such title remaining as will support a lien ; if, however, the 
 acknowledgment be refused, the vendee's contract is rescinded, and 
 the debtor's title remains as if no sale had been made. 
 
 The debtor is, however, entitled to the possession until the ac- 
 knowledgment ; the purchaser has by his mere purchase acquired no 
 title to the? present enjoyment." This right to possession carries 
 
 ^"Accord: Smith v. Allen, i Blackf. (Ind.) 22 (1818) ; Robinson v 
 Robinson, 3 Harr. (Del.) 391 (1841) ; Boyd's Lessee v. Longworth, 11 Ohio 
 235 (1842); Thomas v. Crofut, 14 N. Y. 474 (1856); Barrett v. Western 
 66 Barb. (N. Y.) 205 (1870); Edwardsville R. Co. v. Sawyer, 92 111. 377 
 (1879); Farlin v. Sook, 30 Kans. 401, i Pac. 123, 46 Am. Rep. 100 (1883) ; 
 Hackensack Sav. Bank v. Morse, 46 N. J. Eq. 161, 18 Atl. 367 (1889) ; Penn- 
 sylvmia Schuvl. V. R. Co v Cleary, 12.S P a. St. 442. 17 Atl. 468. 11 Am. ^f 
 913 (1889). Contra : Leger v. Doyle, 11 Rich. LTTBTCar.) 109, 70 Am. Dec. 240 
 (1857) ; Den ex dent. Green v. Steehnan, 10 N. J. L. 193 (1828). Cf. Leach 
 V. Koenig, 55 Mo. 451 (1874). 
 
 "Accord: Fell v. Price, 8 III. (3 Gilm.) 186 C1846) ; Marshall v. McLean, 
 3 G. Greene (Iowa) 363 (1852); Miller v. Wilson, 32 Md. 297 (1869); 
 Greer v. Winter smith, 85 Ky. 516, 4 S. W. 2^2, 9 Ky. L. 96, 7 Am. St. 613 
 (1887); Robinson v. Thornton, 102 Cal. 675, 34 Pac. 120 (1893); Dumond 
 V Church, 4 App. Div. 194, 38 N. Y. S. 557, 74 N. Y. St. 176 (1896); 
 Cf. Van Rensselaer v. Sheriff of Albany, i Cow. (N. Y.) 501 (1823). 
 
 ^=A conveyance is necessary to complete the title of the purchaser of 
 real estate sold on execution, and the right to possession follows. Hall^v 
 Benner. i Pen. & W (Pa.) 402 (1830) ; Kelly v. Governor, 14 Ala. ^41 (1848) ; 
 Storchv. Carr. 2« Pa. St. ^ix (1857) ; Dminica v. Coy, 24 Mo. 167, 69 Am. 
 Dec. 420 (1857) ; Garrett wTDeKart, 43 P a. St. .^42. 82 Am. Dec. 570 (1862) ; 
 Rogers v. Caivood, i Swan (Tenn.) 142, 55 Am. Dec. 729 (1851) ; Edwards 
 v. Miller, 4 Pleisk. (Tenn.) 314 (1871) ; Robinson v. Hall, 2,2, Kans. 139, 5 Pac. 
 763 (1885). But a deed is unnecessary where a leasehold interest is sold 
 Williams v. Downin a 18 Pa. St. 60 (i8m ). In jurisdictions allowing a 
 sfatiitory period lor the redemption of the property bv the debtor, the pur- 
 chaser is not entitled to a deed from the sheriff until the expiration of such 
 period. Evcrtson v. Sazvyer, 2 Wend. (N. Y.) 507 (1829) ; N. Y. Code Civ 
 Pro., §§ 1438-41; Cal. Code Civ. Pro., §§ 700-1; Schcrmerhorn v. Merrill, 
 I Barb. (N. Y.) 511 (1847) ; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec 
 (jho (1858) ; Cummings v. Coe, 10 Cal. 529 (1858) ; Curtis v. Bush, 39 Barb.
 
 y(i2 EXECUTION 
 
 with it its attendant advantai::cs, the right to the growing crops as 
 they may mature ; the right to an ordinary use of a mine or quarry, 
 or to the flow from an oil well. The debtor will not be allowed to 
 commit waste or destruction of the premises."'"' The sheriff's vendee 
 is, therefore, only entitled to the growing grain, to the use of mine 
 or (]uarry, and the oil upon the lands embraced within his purchase, 
 subiect to the right accruing to the debtor under his possession. 
 The grain, the coal, or the oil, so far as they are of the realty, belong 
 to the vendee; the debtor may, however, pending the sale, and 
 until the acknowledgment of the deed, cut the ripened grain, mine 
 the coal, or receive the flow of oil, and apply the product to his own 
 use. Whilst these products are attached to the realty they belong 
 to the vendee, and it is by ordinary severance only that they become 
 the property of the debtor.^* 
 
 The grain as a growing crop, the coal in the mine, or the oil in 
 the well, could not, after the sale of the land, be seized and sold upon 
 execution as the property of the debtor, nor would the debtor be 
 allowed to sell or waste them. But if, before the acknowledgment, 
 the grain ripen and the debtor sever it from the land, if he continue 
 
 (N. Y.) 66i (1863) ; Page v. Rogers, 31 Cal. 293 (1866) ; Cook v. Knozvlcs, 
 38 Mich. 316 (1878) ; Foorman v. Wallace, 75 Cal. 552, 17 Pac. 680 (1888) ; 
 Shirk V. Thomas, 121 Ind. 147, 22 N. E. 976, 16 Am. St. 381 (1889) ; Dray v. 
 Dray, 21 Ore. 59, 27 Pac. 223 (1891) ; Hill v. Szvihart, 148 Ind. 319, 47 N. E. 
 705 (1897) ; Wood V. Conrad, 2 S. Dak. 405, 50 N. W. 903 (1891). In some 
 states a sheriff's deed must be acknowledged. Roads v. Symmes, i Ohio 281, 
 13 Am. Dec. 621 (1824) ; Boal v. King, Wright (Ohio) 223 (1833) ; RdlasJf. 
 McCarfyj_ 10 VJ^attj (Pa.) 13 (1840); StorcjLV. Cqrr, 28 Pa. St. i.^'^ (i8q7) : 
 Ryan v. Carr, 46 Mo. 483 (1870) ; Hammond v. Gordon, 93 Mo. 223, 6 S. W. 
 93 (1S87). Contra: Doe ex dcm. Wayman v. Naylor, 2 Blackf. (Ind.) 32 
 (1826); Greer v. Howard, 4 Ky. L. 350 (1882); Stephenson v. Thompson, 
 13 111. 186 (1851) ; White v. Farley, 81 Ala. 563, 8 So. 215 (1886) ; Faxton v. 
 Heron, 41 Colo. 147, 92 Pac. 15 (1907) ; McNamara v. McNamara, 135 N. Y. 
 Supp. 215 (1911). 
 
 "The debtor in possession is answerable to the sheriff's vendee for waste 
 committed after the sale. Rich v. Baker, 3 Denio (N. Y.) 79 (1846) ; McKeen 
 V. Gavimon, 33 Maine 187 (i8si) ; Thomas v. Crofut, 14 N. Y. 474 (1856) ; 
 Sands v. Pfeiffer, 10 Cal. 258 ('1858) ; Marquette H. & O. R. Co. v. Atkinson, 
 44 Mich. 166, 6 N. \V. 230 (1880); Whitney V. Huntington, 34 Minn. 458, 
 26 N. W. 631, ^7 Am. Rep. 68 (1886) ; Gourley v. Lnkens, 4 Montg. Co. (Pa.) 
 15 (1888). Otherwise where a house is accidentally destroyed by fire. 
 Merritt v. Richcy, 127 Ind. 400, 27 N. E. 131 (1890). 
 
 "Where there is no severance, actual or constructive, growing crops 
 pass to the purchaser of land at e.xecution sale. Bear v , Bitzer. 16 Pa. St . 175, 
 55 Am. Dec. 490 (1851); Bloom v. Welsh, 27 N. J. L. 177 (1858) ; Nichols 
 V. Dewey, 86 Mass. (4 Allen) 386 (1862); Scriven v. Moote, 36 Mich. 64 
 (1877); Frost v. Render, 65 Ga. 15 (1880); Thzveat v. Stamps, 67 Ala. 96 
 (1880); Thomas v. Noel, 81 Ind. 382 (1882); Heavilon v. Farmers' Bank, 
 81 Ind. 249 (1881) ; Smith V. Hague, 25 Kans. 246 (1881) ; Long v. Seavers, 
 103 Pa. St. 517 (1883). Contra: Cassilly v. Rhodes, 12 Ohio 88 (1843); 
 Albin V. Riegcl, 40 Ohio St. 339 (1883) ; contra, as to matured crops, Hecht 
 V. Dittman, 56 Iowa 679, 7 N. W. 495, 10 N. W. 241, 41 Am. Rep. 131 (1881) ; 
 First Nat. Bank v. Beegle, 52 Kans. 709, 35 Pac. 814, 39 Am. St. 365 (1894). 
 In Potter v. Lambie, 142 P a . K'i'^, 21 A tl. 888 (1891), the purchaser who 
 had~not dispossessed the debTor by legal proceedings or otherwise, was held 
 a trespasser for removing part of the crops. See N. Y. Code Civ. Pro., § 1441. 
 Richardson v. Dinkgrave, 26 La. Ann. 632 (1874) ; Frank v. Magee, 50 La. 
 Ann. 1066, 22 So. 939 (1S98).
 
 HARDENBURG V. BEECHER 763 
 
 the ordinary work of the mine, or operate the oil well, the grain, 
 the coal, and the oil, the ordinary products of the land, during the 
 lawful possession of the debtor, are his ; these are some of the at- 
 tendant advantages of his possession. After severance and posses- 
 sion taken by the debtor, these products are of course liable to 
 execution for his debts. 
 
 But if he voluntarily abandon the possession of the land, and 
 surrender to the sheriff's vendee, he loses all these attendant; ad- 
 vantages.^^ 
 
 If the vendee enter under these circumstances, he Is lawfully 
 in possession; the subsequent acknowledgment of the deed gives 
 him title by relation from the date of the sale. The debtor's right 
 to remain until the sale is fully completed, and to enjoy its inci- 
 dental advantages as such, are not the subject of execution, nor 
 is he obliged to remain for the benefit of his creditors ; the privilege 
 is a personal one, and he may exercise it or not, as he chooses. 
 
 Hardenburg and McClure bought the lands and the oil, and if 
 Merrill and Markert, the debtors, without any fraud, abandoned 
 their possession and suffered the vendees to enter, if they did not 
 stand upon their rights or claim the advantages incident to posses- 
 sion, but voluntarily relinquished all, we think the vendees were 
 justified In making an entry for the purpose of securing the oil 
 which flowed from the lands they had already purchased, and which 
 were subsequently conveyed to them. If, whilst lawfully in pos- 
 session, they erected tanks and received the flow of oil from the 
 well, which otherwise would have gone to waste, the subsequent 
 acknowledgment of the deed would as certainly have confirmed 
 their title to the oil, part and parcel of the land when they bought, 
 as to the land itself. Merrill and Markert might have remained 
 pending the acknowledgment of the sheriff's deed and received and 
 claimed this oil as their own, but they were not obliged to do so. 
 
 ^'A purchaser at sheriff's sale upon obtaining title may, if he can do so 
 peaceably, take possession of the land. Taylor v. Cole, 3 T. R. 292 (1789) ; 
 McDougall v. Sticker, 1 Johns. (N. Y.) 42 (1806) ; Orscr v. Storms, 9 Cow. 
 (N. Y.) 687, 18 Am. Dec. 543 (1826) ; Leidv y. Proctor. 07 Pa. St. 486 
 (1881), but he can not take forcible possession, the defendant is only bound 
 to surrender when statutory proceedings or a judgment in ejectment require it. 
 People ex rel. Brinkerhoff v. Nelson, 13 Johns. (N. Y.) 340 (1816) ; Evert- 
 son v. Sawyer, 2 Wend. (N. Y.) 507 (1829) ; Coleman v. Hair, 22 Ala. 596 
 (1853) ; trick V. Fiscus, 164 Pa. St. 623, 30 Atl. 51 5 (1894). The common-law 
 remedy ot tlie purchaser to obtain possession is ejectment. Morton v. Sanders, 
 2 J. J. IMarsh. (Ky.) 192 (1829) ; Den ex dem. Davis v. Evans, 27 N. Car. 
 525 (1845) ; Odonnell v. McMurdie, 6 Humph. (Tenn.) 134 (1845) ; Downing 
 V. Sullivan, 64 Conn, i, 29 Atl. 130 (1894) ; Gimn v. Hardy, 130 Ala. 642, 31 
 So. 443 (1900). In a number of jurisdictions a summary proceeding to obtain 
 possession is provided bv statute. Ferguson v. Blakenv, 6 Ark. 296 (1845) ; 
 Spraker v. Cook, 16 N. Y. 567 (1858) ; N. Y. Code Civ. Pro., § 22.-!2: Wal - 
 hddne's Aht^eal. Q Z. Pa. St . 466 (1880) ; Moore v. Moore, 23 Super Ct. Pa. 7 3 
 (1903); Pa. Act of April 20, 1905, P . L. 239, 2 P. & L. Dig. (2d ed.) 3491. 
 As to writs ot assistance see Lundstrum v. Branson, 92 Kans. 78, 139 Pac. 
 1 172 (1914). As to the New England practice see note to Chenery v. Stevens, 
 97 Mass. 77, supra.
 
 -64 EXECUTION' 
 
 Thcv can not complain, as the claun of tlicse creditors to the oil can 
 occupy no hij^^hcr jilacc than that of Merrill and Markert. 
 The judt^ment is therefore reversed.^^ 
 
 CHAMPNEY V. SMITH 
 
 Supreme Judicial Court of Massachusetts, i860 
 
 81 Mass. 512 
 
 Action of tort for the conversion of forty-eight and one-half 
 cords of wood. At the trial in the Superior Court it was agreed 
 that the defendants purchased wood of a deputy sherifif, who sold it 
 on execution against S. L. Arnold & Co. as their property, when it 
 was in fact the jiroperty of the plaintiff. The defendants contended 
 that the plaintiff's remedy was against the officer, and not against 
 them. But Putman, J., ruled otherwise. The jury returned a verdict 
 for the plaintiff, and the defendant alleged exceptions. 
 
 AIetcalf, J. : A purchaser at an officer's sale of A's goods, on 
 an execution against B, acquires no property in them, and can 
 justify no intermeddling with them. For any acts of assumed own- 
 ership or control thereof he is liable to A in any action to which he 
 would have been liable if there had been no sale. Cases cited in 
 Biiffum V. Deane, 8 Cush. (Alass.) 41 ; Shaw v. Tunhridge, 2 W. Bl. 
 1064; Stone V. Ehherly, i Bay (S. Car.) 317. 
 
 We understand that the defendants took and carried away the 
 wood, under Smith's claim thereto, by virtue of the officer's sale. 
 The plaintiff has therefore adopted a proper form of action, though 
 he might have maintained replevin. 
 
 Exceptions overruled.^^ 
 
 "So it has been frequently held that the purchaser is entitled only to rent 
 which accrues after the sheriff's deed is acknowledged. Scheerer v. Stanley, 
 2 Rawle (PaJ 276 (1830); Bank of Penns:ylvania v. Wise. 7, Watts (Pa.) 
 394 (1834) ; Smith v. Colvin, 17 Barb. (N. Y.) 157 (1853) ; Swiff vTAgncs, 
 33 Wis. 228 (1873) ; Millard v. McMullin, 68 N. Y. 345 (1877) ; Ktrkpatrick 
 V. Boyd, QO Ala. 449, 7 So. 913 (1889) ; Israel v. Cloiigh, 5 Pa. Dist. R. 325 
 (1896) ; King v. Bosscrman, 13 Pa^Supcr. Ct. 480 (J 900) ; Tate v. Saunders, 
 245 Mo. 186^' 149 ^^V. 485 (1912). Gontra: Stayton V. Morris, 4 Harr. 
 (Del.) 224 (1843) ; Dailcy v. Grimes, 27 Md. 440 (1867) ; Kane v. Mink, 64 
 Iowa 84, 19 N. W. 852 (1884). As to the respective rights of the purchaser 
 and the debtor in jurisdictions where the debtor is allowed a period to redeem, 
 compare Reynolds v. Lathrop, 7 Cal. 43 (1857) ; Walker v. McCiisker, 71 Cal. 
 594 12 Pac. 723 (1887) ; Sadler v. Kearney, 143 Cal. 506 (1904), with Wright 
 V Williams, 7 Lea (Tenn.) 700 (1881) ; Mcrritt V. Gibson, 129 Ind. 155, 27 
 N. E. 136, 15 L. R. A. 277 (1891), and with Sowles V. Ilauley, 64 Vt. 412, 23 
 Atl. 725 (1892); Pringle v. James, 109 111. App. loo (1902); Kennedy v. 
 Trumble, 32 Wash. 614, 73 Pac. 698 (1903)- 
 
 ''A sale on execution passes only the right, title and interest of the 
 judgment debtor. If the debtor has no interest, none passes by the sale to 
 the purchaser. There is no warranty in judicial sales, and if the sheriff sells 
 in good faith, he is not responsible to the purchaser for any defects in title. 
 The purchaser takes what he gets and no more. Caveat Emptor is the rule. 
 The Monte Allcgre, 9 Wheat. (U. S.) 616, 6 L. ed. 174 (1824) ; Duncan v.
 
 CHAMPNEY V. SMITPI 765 
 
 Garratt, I Car. & P. 169, 2 L. J. (O. S.) K. B. 142, 26 R. R. 629 (1824) ; 
 fWgdZiLV^>S"cAi:^iLs^^.Sjerg^& R. rP'i-) 156, n Am. Dec. 691 (1822) ; Weidler 
 y. Farmers Batik ^J.L.S£XS^& R7 (Pa.) 134 (1824) ; Freeman v. Caldwell, 
 loWa tts (Pa.) Q (1840 ) ; Williams V. Miller, 16 Conn. 144 (1844) ; Auslin 
 V. 'I'ilden, 14 Vt. 325 (1842) ; Wood v. Calvin, 2 Hill (N. Y.) 566, 38 Am. Dec. 
 598 (1842) ; Mervine v. Vanlier, 7 N. J. Eq. 34 (1848) ; V annoy v. Martin, 
 41 N. Car. 169, 51 Am. Dec. 418 (1849) ; Chapman v. Speller, 14 Ad. & El. (N. 
 S.) 621 (1850) ; Vansyckle v. Richardson, 13 111. 171 (1851) ; McCartney V. 
 /^t«5r, 25 Ala. 6S1 (1S54) ; Creps V. Baird, 3 Ohio St. 277 (1854) ; Carpenter 
 V. Stilwell, II N. Y. 61 (1854) ; Phil lips v. Zerh e Ru n & ShaiiwkinJ inprove- 
 ment Co., 25 Pa. .St. 5 6 (1855) Hamsmith V. Espy, 19 Iowa 444" (IB65) ; 
 Coombs V. Gordcn, 59 Maine iii (1871) ; Bassett v. Lockard, 60 111. 164 
 (1871) ; Fan.s-(-ojoc v. Kimlcr, yj 111. 151 (1875) ; Frost v. Yonkcrs Sav. Bank, 
 70 N. Y. 553, (8 Hun) 26 Am. Rep. 627 (1877) ; Carbine v. Morris, 92 111. 555 
 (1879) ; li^jjl s, V Z/"^w. /^3'^^, Tn<S Pa. St. Ill ( l88zi") ; V/right V. Tichcnor, 104 
 Ind. 185, 3 N. E. 853 (1885) ; Smith v. Wortham, 82 Va. 937, i S. E. 331 
 (1887); Hexter v. Schneider, 14 Ore. 184, 12 Pac. 668 (18S6) ; Greer v. 
 Wintcrsmith, 85 Ky. 516, 4 S. W. 232, 9 Ky. L. 96, 7 Am. St. 613 (1S87) ; 
 Lewark V. Carter, 117 Ind. 206, 20 N. E. 119, 3 L. R. A. 440, 10 Am. St. 40 
 (1888) ; Goodbar v. Z^aniV/, 88 Ala. 583, 7 So. 254, 16 Am. St. 76 (18S9) ; 
 Stearns v. Edson, 63 Vt. 259, 22 Atl. 420, 25 Am. St. 758 (1891) ; Ronan v. 
 King, L. R. (1S94) 2 Ir. R. 648; Stoncbridge V. Perkins, 141 N. Y. i, 35 
 N. E. 980 (1894) ; Long v. McKissick, 50 S. Car. 218, 27 S. E. 636 (1897) ; 
 Brady v. Carteret Realty Co., 67 N. J. Eq. 641, 60 Atl. 938, no Am. St. 502 
 (1904) ; Smith v. Kcmether, 24 Del. 572, 76 Atl. 482 (1910) ; Kochs Co. v. 
 Jackson, 156 N. Car. 326, 72 S. E. 326 (1911) ; Large v. Wabash R. Co., 168 
 111. App. 310 (1912); Spears v. Weddington, 146 Ky. 434, 142 S. W. 679 
 (1912) ; Irwin v. Beggs, 24 Colo. App. 158, 132 Pac. 385 (1913) ; Nelson v. 
 Bock, 84 N. J. L. 123, 85 Atl. 1009 (1913) ; Grove s v. Lewis, .S3 Pa. Super. Ct . 
 511 (1913) ; Hammer w. Westphal, 120 Md. 15, 87'^Atl. 488 (1913). 
 
 As to whether equitable relief may be given to the purchaser and, if so, 
 under what circumstances, the cases are conflicting. Compare Smith v. 
 Harrison, 26 L. J. Ch. 412 (1857) ; Kearney v. Ryan, L. R. 2 Ir. R. 61 (1878) ; 
 Thompson v. Harlan, I Dana (Ky.) 190 (1833) ; Rhode v. Ne ff, I W oojw. 
 (Pa.) 4 77 (1869) ; .'^hnkslpnre_v^Delnny. 86 Pa. St. Tn8 (1878) ; Henderson V. 
 Overton, 2 Yerg. (Tenn.) 394, 24 Am. Dec. 492 (1830) ; Boy kin v. Cook, 
 61 Ala. 472 (1878) ; First Nat. Bank v. Rogers, 22 Minn. 224 (1875) ; Kerr 
 V. Kerr, 81 111. App. 35 (1898), v/ith Weidler v. Farmers Ba nk, 11 S erg^ R. 
 (Pa.) 134 (1824); Hand v. Grant, 18 Miss. (10 Sm. & IM.) 514 (1848); 
 yoM«?^ V. i?nrr, 5 Strob. (S. Car.) 147, 53 Am. Dec. 699 (1850) ; Bickley v. 
 Biddle. ^^ Pa. St. 276 (1 859;) ; Holmes v. Shaver, 78 111. 578 (1875) '; Goodbar 
 V. Daniel, 88 Ala. 583, 7 So. 254, 16 Am. St. 76 (1889) ; Pinksfon v. Harrell, 
 106 Ga. 102, 31 S. E. 808, 71 Am. St. 242 (1898) ; Dickson y^McGartncy, 226 
 Pa. 552, ys Atl. 735 (1910) ; Copper Bell Min. CoTof IV. Va. v. Gleeson, 
 14 Ariz. 548, 134 Pac. 285 (1913). A doctrine widely recognized is that an 
 innocent purchaser at a void sale whose money has been expended in dis- 
 charging the judgment debt or paying liens may be subrogated to the right 
 of the creditors paid as against the execution debtor. M'Ghee v. Ellis, 4 Litt. 
 (Ky.) 244, 14 Am. Dec. 124 (1823) ; Payne v. Hathaway, 3 Vt. 212 (1831) ; 
 Lambeth v. Elder, 44 Miss. 80 (1870) ; Davis v. Gaines, 104 U. S. 386, 26 
 L. ed. 757 (1881) ; Swain v. Stockton Savings Soc, 78 Cal. 600, 21 Pac. 365, 
 12 Am. St. 118 (1889) ; Paxton v. Sterne, 127 Ind. 289, 26 N. E. 557 (1890) ; 
 Junior Order Building & Loan Assn. v. Sharpe, 63 N. J. Eq. 500, 52 Atl. 832 
 (1902) ; Hutson v. Wood, 263 111. 376, 105 N. E. 343, Ann. Cas. 1915C, 587 
 (1914).
 
 -(>(j EXECUTION 
 
 PINCKNEY V. PINCKNEY 
 
 Supreme CoupvT of Iowa, 1901 
 
 114 I OK a 441 
 
 This is an action between the widow and the heirs at law of 
 J. W. Pinckney, deceased, for the partition of certain real estate 
 belonging to the estate of said Pinckney. The issues here arise 
 upon the claim of Sarah A. Collie as a purchaser at execution sale 
 of the interest of one of the heirs. 
 
 Waterman, J.: J. W. Pinckney died intestate on the twenty- 
 fiftli day of April, 1898, seised of the real estate in question, leaving 
 surviving him his widov/ and a number of children, including John 
 W. Pinckney, whose interest gives rise to this controversy. Some 
 years prior to his death, J. W. Pinckney had made an advance- 
 ment to tliis son of $1,000, taking his receipt and acknowledgment 
 therefor. Afteil tlie death of the father, Sarah A. Collie brought 
 suit by attachment against John W. Pinckney, and caused the writ 
 to be levied upon his interest in the real estate involved herein. 
 Later she obtained judgment, and upon a sale under special execu- 
 tion she bought in said property. At the time of such levy and 
 sale Sarah A. Collie had no knowledge that an advancement had 
 been made to John W. Pinckney, and she now denies the right 
 of the others interested to have the amount of the advancement 
 considered as a part of his interest in the estate; in other words, 
 she claims to have taken under her purchase at execution sale the 
 share which would have gone to John W. Pinckney if no advance- 
 ment had been made. The trial court awarded her such interest 
 in the property as "John W. Pinckney would have been entitled to 
 in excess of the said advancement." The general rule is that a 
 purchaser of an heir's interest takes subject to all advancements 
 made to him. Steele v. Frierson, 85 Tenn. 430. The' proposition 
 stated also has some support in w^hat is said in the case of Lig'mger 
 V. Field, 78 Wis. 367. Ordinarily, the doctrine of caveat emptor 
 applies to a purchaser at judicial sale. Burns v. Hamilton's Admr., 
 70 Am. Dec. 572, note; Jones v. Blumenstein, yy Iowa 361. Appel- 
 lant claims, however, that her rights are saved by section 2925 of 
 the code, which is as follows : "No instrument affecting real estate 
 is of any validity against subsequent purchasers for a valuable con- 
 sideration without notice unless recorded in the office of the re- 
 corder of the county in which the same lies, as hereinafter provided." 
 A judgment creditor purchasing at execution sale is entitled to pro- 
 tection under this section, at least in the absence of controlling 
 equities; IVeaver v. Carpenter, 42 Iowa 343; Gower v. Doheny, 33 
 lov.-a 36; Walker v. Elston, 21 Iowa 529. But it is pertinent to ask, 
 against what is this protection assured? The code provision says, in 
 effect, it is against unrecorded instruments affecting real estate. 
 Cearly, this receipt is not such an instrument. The right of the 
 estate to charge the advancement against the heir would have been
 
 PINCKNEY V. PINCKNEY 767 
 
 the same had no receipt or acknowledgment been given. It seems 
 clear that the instruments referred to in this section are those which 
 are entitled to be recorded, and a receipt is not of that class. When 
 the instrument is of a kind that recording is unnecessary, as a cer- 
 tificate of purchase from the United States, or a transfer thereof, 
 this section does not apply. Klein's Heirs v. Argenbright, 26 Iowa 
 493; David V. Rickabaugh, 32 Iowa 540; Harnioti v. Clayton, 51 
 Iowa 36. Neither is such a claim as a widow's right to dower 
 affected by the provisions^ of this section. Crusie v. Belhnire, 69 
 Iowa 397; Kendall v. Kendall, 42 Iowa 464; Butler v. Fitsgeraid, 
 43 Nebr. 192, In principle the claim to a credit for the advance- 
 ment is much like, the right of dower. Appellant relies upon the 
 cases of Ettenheimer v. Northbraves, 75 Iowa 28, and Finch v. Gar- 
 rett, 102 Iowa 381 ; but, in our opinion, neither of these decisions 
 gives any support to her claim. In the first one the equity against 
 which the execution purchaser was given protection was founded 
 upon an unrecorded mortgage, and in the other it was found as a 
 fact that the purchaser had notice of the advancement, but nothing is 
 said to indicate that the holding of the court would have been dif- 
 ferent had there been no such notice. Our conclusion is that the 
 receipt we have here is not an instrument affecting real estate, within 
 the meaning of section 2925, and that the general rule to which we 
 have above referred applies. Under this rule Sarah A. Collie, by her 
 purchase at execution sale, acquired only the debtor's actual interest 
 in tlie estate, which was his share as heir, less the advancement. As 
 this was awarded her by the trial court, its judgment will be 
 affirmed.^^ 
 
 ^^Where the interest sold is subject to equities not within the recording 
 acts, the purchaser takes only such interest. Richardson v. Wicker, 74 N. Car. 
 278 (1876) ; Morrisnn-X..Fimk, ?s Pfi St i-^T_.Xi854) ; Bnrgin v. Bnrgin, 82 
 N. Car. 196 (1880) ; Chumasero v. Vial, 3 Mont. 376 (1879) ; Nugent v. 
 Prichatsch, 61 Miss. 402 (1883); Parker v. Coop, 60 Tex. in (1883); 
 McKamey v. Thorp, 61 Tex. 648 (1884); Tcnnant v. Watson, 58 Ark. 252, 
 24 S. W. 495 (1893) ; Clemmons v. Cox, 114 Ala. 350, 21 So. 426 (1896) ; 
 Colyar v. Capital City Bank, 103 Tenn. J22, 54 S. W. 977 (1899); Cote v. 
 Lanqston. 226 Pa. 9.A0, 7 =; Atl. 662 (1910). Compare Lance^ v. Gorman^j.36 
 Pa. St. ,200, 20 Atl. 792, 20 Am. St. 914 (1890) ; Logan wTFva, 144^ ^. St._3i 2, 
 22 Atl. 757 (1891) ; Creegan v. Robertson, 74 Hun OTTY.) 22, 2{rN. Y. S. 
 326, 56 N. Y. St. 161 (1893) ; Maroney v. Boyle, 141 N. Y. 462, 36 N. E. 511, 
 38 Am. St. 821 (1894). A fortiori as to equities of which the purchaser has 
 actual or constnictive notice. Parks v. Jackson, 11 Wend. (N. Y.) 442, 25 
 Am. Dec. 656 (1833) ; Hoffman y. Strohecker. 7 Watts (Pa) 86, 32 Am. Dec. 
 740 (1838); Houghton v. Bartliolomezv, 51 Mass. (10 Mete.) 138 (1845^; 
 Reed's App eal, t^ Pn .^t ^7^. rrSgn') ; Moyer v. Hinman, 13 N. Y. 180 (1855) ; 
 Pash V. Ravesies, 32 Ala. 451 (i8s8) ; Qihson v. Winslow. 46 Pa. St. .^80. 
 84 Am. Dec. 552 (1863); Blue y. Blue, 38 111. g, 87 Am. Dec. 267 (1865) ; 
 Byers v. Wackmam, 16 Ohio St. 441 (1866) ; Myers y. Leas, loi Pa. S t. 172 
 (1882); §ill V. Sinjack hammer, 103 Pa. St. 7 (188.^) : Anglesey v. Colnnn. 
 44 N. J. Lq. 203, 9 Atl. 105, 14 Atl. 627 (1888) ; Miller v. Baker, 166 Pa. St. 
 414, 31 Atl. 121, 45 Am. St. 680 (1895) ; Gcishakcr v. Fancoast, 57 N.J. Eq. 60, 
 40 Atl. 200 (1898) ; May v. Cleland, 117 Mich. 45, 75 N. W. 129, 44 L. R. A. 
 163 (1898) ; Morgan v. Turner, 35 Misc. 399, 71 N. Y. S. 996 (1901) ; Luke v. 
 Smith, 13 Ariz. 155, io8 Pac. 494 (1910) ; Tate v. Sanders, 245 Mo. 186. 149 
 S. W. 485 (1912).
 
 ^68 EXKCUTION 
 
 FOORMAX 1'. WAT J.ACE 
 
 Supreme Court oi' California, 1885 
 75 Col. 552™ 
 
 Searls, C. J. : The question involved in this appeal may be 
 stated thus : A brings an action against B, sues out and levies an 
 attacimient upon the land of the latter, obtains a judgment upon 
 which an execution issues, and the land in question is sold. A, the 
 judgment creditor, becomes the purchaser, receives a sheriff's cer- 
 tificate of sale, which is filed and recorded, and in due time receives 
 a sheriffs deed of the premises. B, the judgment debtor, had con- 
 veyed the land before suit brought by a deed which was not recorded, 
 and of which A had no notice until after his receipt and record 
 of the certificate of sale, but which was duly recorded before the 
 sherifil's deed issued. If, upon these facts, the title of A under his 
 sheriff's deed is paramount to that of B, under his deed recorded 
 after the sale and recordation of the certificate, and before the 
 sherift''s deed was recorded, then the judgment and order appealed 
 from should be affirmed ; otherwise a reversal should be had. 
 
 In other words, is the interest acquired by a purchaser of real 
 estate at a sheriff's sale, whose certificate of sale is properly re- 
 corded, destroyed by the production of a deed from the judgment 
 debtor, executed anterior to the sale, but not recorded until after 
 the record of the certificate of sale, and just prior to the expiration 
 of the time for redemption? 
 
 Appellant answers this question in the affirmative, and further 
 contends tliat respondent, having purchased the land at a sale under 
 his own judgment, and having merely credited the net proceeds of 
 tlie sale upon such judgment, is not a bona fide purchaser for a 
 valuable consideration. 
 
 It has often been held in this state that a conveyance in con- 
 sideration of the cancellation of a pre-existing indebtedness is a 
 conveyance for a valuable consideration w'ithin the meaning of sec- 
 tion 1214 of the Civil Code. Gasscn v. Hendrick, 74 Cal. 444; 
 Frey v. Clifford, 44 Cal. 335; Schl liter v. Harvey, 65 Cal. 158. 
 A like doctrine prevailed under the recording act in force prior to 
 the code. Hunter v. Watson, 12 Cal. 377, 73 Am. Dec. 543, where 
 it was said: "A judgment creditor, purchasing at his own sale with- 
 out notice, is a bona fide purchaser within the act." 
 
 It follows from these decisions and the findings, that respondent 
 stands in the position of an innocent purchaser for a valuable con- 
 sideration, without notice at the date of his purchase, in the same 
 manner and to the same extent as an innocent third party would 
 do, who had purchased and paid his money ,°" 
 
 Judgment affirmed. 
 
 ''"The statement of facts and part of the opinion of the court are omitted. 
 
 *"A bona fide purchaser at a sale on execution without notice is within 
 the protection of the recording acts. Ir vine v. Cam f>helL 4>liinn. (Pa.') 118 
 (1813) ; Pendleton v. Button, 3 Conn. 406 (1820) ; Den ex dem. Sam'l J. Head
 
 BRIGHAM V. DOVER 769 
 
 BIGHAM V. DOVER 
 
 Supreme Court of Arkansas, 1908 
 86 Ark. 323 
 
 Appellee bought a saddle for $12 at a sale under the following 
 execution : 
 
 "County of Pope, Township of White. 
 
 "The State of Arkansas to any constable of Polk county: You 
 are hereby commanded that of the goods and chattels of E. T. Big- 
 ham you cause to be made the sum of nine dollars ($9) which W, W. 
 Cranford late before me, a justice of the peace for said county, re- 
 covered against him for his costs in a replevin suit, and also costs in 
 a suit wherein S. S. Crockett was plaintiff and W. W. Cranford and 
 E. T. Bigham were defendants, and that you have said sum of 
 money within thirty days to render to said W. W. Cranford for his 
 costs aforesaid. 
 
 "Witness my hand as such justice this the i6th day of September, 
 1906. 
 
 "B. F. McMillan, J. P." 
 
 The sale was regular. 
 
 The execution was based on two judgments against appellant in 
 the justice court, aggregating the sum of $9 with costs. The judg- 
 ments were in favor of different parties. The judgments were valid. 
 Appellants, claiming that the execution was void, and that the sale 
 thereunder was void, brought replevin against appellee for the sad- 
 
 V. Richnian, 13 N. J. L. 43 (1832) ; Jackson ex dem. Merrick v. Post, 15 Wend. 
 (N. Y.) 588 (1836) ; Scribncr v. Lockwood, 9 Ohio 184 (1839) ; Stewart v. 
 Freeman. 22 Pa. St. 120 CiS ^-^) ; Blankenship v. Douglas, 26 Tex. 225 X 18627 ; 
 Hetzcl V. Barber, 69 N. Y. i (1877) ; Mansfield v. Gregory, 8 Nebr. 432, i 
 N. W. 382 (1879); Lee v. Bermingham, 30 Kans. 312, i Pac. yz (1883); 
 McCandless v. Inland Acid Co., 108 Ga. 618, 34 S. E. 142 (1899) ; Johnson v. 
 Equitable Securities Co., 114 Ga. 604, 40 S. E. 787, 56 L. R. A. 933 (1901). 
 See Hughes v. Williams, 218 Mass. 448, 105 N. E. 1056 (1914). As in the 
 principal case, some courts have held that the execution creditor purchasing 
 at the sale is protected by the recording acts in the same manner as a stranger. 
 Wood V. Chapin, 13 N. Y. 509, 67 Am. Dec. 62 (1856) ; Htmter v. Watson, 
 12 Cal. 363, 72 Am. Dec. 543 (1859); Evans v. McGlasson, 18 Iowa 150 
 (1864) ; Butter field v. Walsh, 21 Iowa 97, 89 Am. Dec. 557 (1866) ; Woodzvard 
 V. Sartwell, 129 Mass. 210 (1880); Vance v. Corrigan, 78 Mo. 94 (1883); 
 Columbus B. Co. v. Graves, 108 111. 459 (1884) ; Riley v. Martinelli, 97 Cal. 
 575, 22 Pac. 579, 21 L. R. A. zi, 33 Am. St. 209 (1893); Sternberger & 
 Willard V. Ragland, 57 OTTio St. 148, 48 N. E. 811 (1897) ; Pngh v. Highley, 
 152 Ind. 252, 53 N. E. 171, 44 L. R. A. 392, 71 Am. St. 327 (1898) ; Rouse v. 
 Caton, 168 Mo. 288, 67 S. W. 578, 90 Am. St. 4^6 (1901). Contra: Ayres v. 
 Duprey, 27 Tex. 593, 86 Am. Dec. 657 (1864) ; Tennant v. Watson, 58 Ark. 
 252, 24 S. W. 495 (1893) ; Murphy v. Plankington, 13 S. Dak. 501, 83 N. W. 
 575 (1900); Hacker v. White, 22 Wash. 415, 60 Pac. 11 14, 79 Am. St. 945 
 (1900) ; Morris y Ziegler, 71 Pa. St. 4=;o (1 872') semble ; American S. Bank 
 V. Helgesen, b7 Wash. 572, 122 Pac. 26 (1912) ; Euke v. Smith, 227 U. S. 379, 
 57 L. ed. 558 (1913). See 24 A. & E. Encyc. of Law (2d ed.) 129; 17 Cyc. 
 1304. 
 
 49 — Civ. Proc.
 
 --0 F.XKCrTION 
 
 die. The cause was tried by the court sitting as a jury, and the 
 above appear as the luuHsputcd facts. 
 
 The court found that the sale was valid, and that the title to 
 the saddle: was in appellee, but that appellant was entitled to the 
 dittcrcnce between $12, the amount for which the saddle was sold, 
 and i?5.50, the amount of the Cranford judgment, and rendered 
 judgment accordingly. The appellant duly ])rosecutcs this appeal. 
 
 Wood, J. : There is no law or rule of practice that authorizes 
 a single execution for the amounts of two separate and distinct 
 judgments. 17 Cyc. 932, A joint execution upon two separate 
 judgments is not voidable merely, but void. Merchie v. Gaines, 5 B. 
 Monroe (Ky.) 126; Doc v. Rue, 4 Blackf. (Ind.) 263. Such an ex- 
 ecution is defective, not in form merely, but also in substance, and 
 is therefore not susceptible of amendment. See Blanks v. Rector, 
 24 Ark. 496; fliglifozi'cr v. Handlin, 27 Ark. 20; Hall v. Doyle, 35 
 Ark. 445 ; Jctt v. Sliinn, 47 Ark. 373 ; and Downs v. Dennis, 83 Ark. 
 71, as to executions that may or may not be amended. An execu- 
 tion based on a valid judgment, but which contains an excessive 
 amount only, may, according to some decisions, be amended. Hunt 
 V. Loucks, 38 Cal. 372; Bogle v. Bloom, 36 Kan. 512; Otis v. Nash, 
 26 Wash. 39. But this is not that case. The ruling of the court 
 eliminating the amount of one of the judgments did not cure the 
 error of taking and selling appellant's property under process that 
 was absolutely void. Such error was prejudicial, and could not be 
 cured by amendment. Appellee acquired no title by his purchase 
 at a sale under the void execution.^^ 
 
 The judgment is therefore reversed, and the cause is remanded 
 for new trial. 
 
 Hill, C. J., and McCulloch, J., dissent. 
 
 "A sale upon a void judgment or execution confers no title. Armstrong 
 V. Jackson, ex dcm. Elliott, i Blackf. (Ind.) 210, 12 Am. Dec. 225 (1822) ; 
 Byhee v. Ashby, 7 111. (2 Gilm.) 151, 43 Am. Dec. 47 (1845) ; Kennedy v. 
 Duncklee, 67 Alass. (i Gray) 65 (1854); Den ex dcm. Todd v. Philhower, 
 24 N. J. L. 796 (1854) ; Gray v. Hawcs, 8 Cal. 562 (1857) ; Silvan v. Coffee, 
 20 Tex. 4, 70 Am. Dec. 371 (1857) ; Marsh v. Sherman, 12 Ind. 358 (1859) ; 
 Farnliam V. Hildreth, 32 Barb. (N. Y.) 277 (i860) ; French v. Edzvards, 80 
 U. S. 506, 20 L. ed. 702 (1871) ; Sheetzjw^Wy nlzoop. 74 Pa. St. i q8 (1873) ; 
 Caiily V. Blue, 62 Ala. 77 (1878); Siotsenbiirg v. Stotscnbnrg, 75 Ind. 538 
 (1881) ; Sidivell v. Schumacher, 99 111. 426 (1881) ; McCracken v. Flanagan, 
 141 N. Y. 174, 36 N. E. 10 (1894) ; Tenan v. Cain. 188 Pa^^ St. 2A2. ^ i Atl. 594 
 (1898) ; McCauley v. IVilUams, 122 N. Car. 293, 30 S. E. 345 (1898) ; First 
 Nat. Bank v. Gibson, 60 Nebr. 767, 84 N. W. 259 ( 1900) ; Kountz v. National 
 Transit Co., 197 Pa. 398, 47 Atl. 350 (1900) ; Schott v. Linscott, 80 Kans. 
 536, 103 Pac. 997 (1909) -jlinrhnnn v Hrfflefinnpr^ ^7 Pa. Suner. Ct. T (19II). 
 But mere irregularities in the proceedings before sale will not impair the 
 title of a bona fide purchaser. Such errors must be corrected by direct pro- 
 ceedings and can not be made the basis of a collateral attack on the title of 
 the purchaser. 3 Freeman on Executions (3d ed.), § 339; Jackson v. Bartlett, 
 8 Johns. (N. Y.) 361 (1811) ; Jackson ex dem. Carman v. Rosevelt, 13 Johns. 
 (N. Y.) 97 (1816) ; Jackson ex dem. Randall v. Davis, 18 Johns. (N. Y.) 7 
 (1820) ; Den ex dem. Flomerfell v. Zcllers, 7 N. J. L. 153 (1824) ; SmuU-il- 
 Mickley, i Ra v.'le (Pa.) 05 ( 1828): Richardson v. Kimball, 28 Maine 463 
 jy^U^r^^rfhirt^. Darling, 4 Cush. (Mass.) 197 (1894) ; Schaffer v. Bolander. 4 
 Greene (Iowa) 201 (1853) ; Osgood v. Blackmore, 59 111. 261 (1871) ; Lenox v. 
 Clarke, 32 Mo. 115 (1873) ; Otmstead v. Kellogg, 47 Iowa 460 (1877) ; Elliott
 
 WILLIAMS V. GALLIEN 77I 
 
 WILLIAMS V. GALLIEN 
 
 Supreme Court of Louisiana, 1841 
 
 I Roh. {La.) 94 
 
 The plaintiff filed a petition in the District Court for the Parish 
 of Natchitoches, praying that a monition might be issued, and his 
 title be confirmed to a tract of land purchased by him at a sheriff's 
 sale under execution against the defendant ; the homologation of the 
 sale was opposed by the latter. The sale was confirmed,! and the 
 defendant ordered to pay the costs of his opposition, Carr, J., pre- 
 siding. 
 
 Martin, J. : The defendant is appellant from a Judgment ho- 
 mologating the sale of a tract of land of his, adjudicated by the 
 sheriff to the plaintiff. The hom.ologation, on the monition, was re- 
 sisted on the ground of gross misconduct in the sheriff, who pro- 
 ceeded to the sale of the property levied on, after the defendant had 
 paid the amount of the judgment to the plaintiff in the executiton, 
 notwithstanding the repeated directions of the attorney of said plain- 
 tiff to forbear to sell the property, and ordering the execution to be 
 returned. The defendant supported his allegation by the testimony 
 of Sherburne, the attorney of the plaintiff in the execution. This 
 gentleman deposed that he received from the present defendant, 
 then also the defendant in the execution, a draft, and agreed that all 
 proceedings on the fieri facias should be suspended until it could be 
 known whether the draft would be accepted; and that afterwards 
 on learning that the draft had been accepted, he directed the sheriff 
 to return the execution; that the draft was a satisfaction of prin- 
 cipal and interest of judgment, and that he considered it as settled; 
 that the sale was made without his knowledge, and that he ordered 
 the sheriff several times before the sale, and once upon seeing the 
 advertisement of sale, to return the execution, and not sell the land. 
 The draft was given him by Gallien, then and now defendant, one 
 month before the sale, which was postponed several times. The 
 costs of suit were not included in the draft. On the part of the 
 
 V. Hart, 45 Mich. 234, 7 N. W. 812 (1881) ; Hiidepohl v. Liberty Hill Water 
 Co., 94 Cal. 588, 29 Pac. 1025, 28 Am. St. 149 (1892) ; Hoffmati v. Biischman, 
 95 Mich. 538, 55 N. W. 458 (1893) ; Conley v. Redwine, 109 Ga. 640, 35 S. E. 
 92, 77 Am. St. 398 (1899) ; Berry v. Gates, 175 Mass. 2>'72>, 56 N. E. 581 (1900) ; 
 Clouqh Y^'V elsh, _22g Pa. 386. 78 Atl. loon Ct qttV A judgment creditor, 
 if the purcliaser, is, according to some authorities, chargeable with notice of 
 irregularities. Piel v. Brayer, 30 Ind. 332, 95 Am. Dec. 699 (1868) ; Smith v. 
 Huntoon, 134 111. 24, 24 N. E. 971, 22, Am. St. 646 (1890). Hence where after 
 a sale to him the judgment is reversed, he may be compelled to restore the 
 property. Goodyere v. Ince, Cro. Jac. 246 (1610) ; Reynolds v. Harris, 14 Cal. 
 667, 76 Am. Dec. 459 (i860) ; Galpin v. Page, 85 U. S. 350, 21 L. ed. 959 
 (1873) ; Stroud v. Casey, 25 Tex. 740, 78 Am. Dec. 556 (i860) ; Stoeckel v. 
 Russell, 6 Houst. (Del.) 32 (1880) ; Purser v. Cady, 120 Cal. 214, 52 Pac. 489 
 (1898) ; Winterson v. Hitchings, 10 Misc. 396, 31 N. Y. S. 127, 63 N. Y. St. 
 ^ti (1894). Contra: Yociiin v. Foreman, 14 Bush. (Ky.) 494 (1879). Cf. 
 Cavanaugh v. Wilson, 108 Ky. 759 '-.7 S. W. 620, 22 Ky. L. 474 (1900).
 
 -J ■72 F.XF.CUTION 
 
 plaintiil and appellee, it is urged liiat the sheriff correctly proceeded 
 to the sale under the execution, because tlie judgment was not en- 
 tirely satisfied, the draft not being sufficient to cover tlie whole 
 judgment, as after its payment the costs remained unsatisfied; that 
 the inn-chascr at the sherilT's sale can not be affected by the neglect 
 of the sheriff to attend to the direction of the plaintiff's attorney, 
 whose instructions to the sheriff were not known to the defendant; 
 and that plaintilY had no right to prevent the sale of property seized, 
 so as to deprive the oflicers of the court of the means of collecting 
 their fees. It appears to us the district court erred. It is true, 
 that if a defendant against whom judgment be obtained does not 
 procure a suspensive appeal, and the judgment is afterwards re- 
 versed, the purchaser of his property on a sale under execution, 
 before the reversal of the judgment, will be maintained in his pur- 
 chase; but it does not follow from thence, that the sale of a defend- 
 ant's property, after he has satisfied the judgment, would avail the 
 purchaser. The whole judgment, including the costs, is the prop- 
 erty of the plaintiff, who we suppose to have advanced them or who 
 is chargeable therewith ; the judgment being that he recover his debt 
 and costs.*'- Code of Pr., Art. 548, et seq. The testimony of Sher- 
 burne is uncontradicted, and leaves no doubt of his having given 
 repeated instructions to the sheriff to forbear selling the defendant's 
 property, even after he had seen the sheriff's advertisement for the 
 sale. The plaintiff purchased for seventy dollars six hundred and 
 forty acres of land, which are alleged to be worth several thousand 
 dollars, and were appraised at fifteen thousand, giving a twelve 
 montiis' bond. 
 
 It is, therefore, ordered that the judgment of the District Court 
 be reversed, and that the sale of tlie defendant's property by the 
 sheriff to the plaintiff be set aside and annulled, and that the latter 
 pay costs in bodi courts.*^^ 
 
 *^In Jackson ex don. Anderson v. Anderson, 4 Wend. (N. Y.) 474 (1830), 
 it is said per Sutherland, J.: "The sheriff had no right to sell, for the pur- 
 pose of collecting his fees, after due notice of the settlement and discharge 
 of the judgment. The sheriff has no interest in the judgment, which will 
 authorize him to interfere with or control any settlement or arrangement 
 which the parties may think proper to make. His fees are no part of the 
 judgment. They are but an incident to it; and if the judgment itself is 
 satisfied or discharged, he must look to the plaintiff and his attorney for his 
 fees. He can not collect tiiem from the defendant by a sale of the property." 
 Accord: Craft v. Merrill, 14 N. Y. 456 (1856). Compare Slater v. Alston, 
 103 Ala. 605, 15 So. 944, 49 Am. St. 55 (1893). 
 
 ^In a majority of jurisdictions a sale under a judgment that has been 
 paid or satisfied prior to the execution is void and passes no title even to a 
 bona fide purchaser without notice of the payment. Wood v. Calvin, 2 Hill 
 (N. Y.) 566, 38 Am. Dec. 598 (1842) ; Kennedy v. Dnncklee, 67 Mass. (i Gray) 
 65 (1854). In the latter case it is said per Metcalf, J.: "We have seen a few 
 cases, in which it was held that though the judgment creditor, or a third 
 person having notice, can not hold property set off or purchased on a satisfied 
 execution, or on an execution issued on a satisfied judgment, yet that it is 
 Otherwise in the case of a purchaser without notice. But, in our judgment, 
 there is no legal ground for this distinction. A purchaser of stolen goods, 
 whether he had notice of the theft or not, must surrender them to the owner ; 
 because the seller had no title and could convey none. And as we hold such
 
 AUDITA QUERELA 773 
 
 SECTION 9. AUDITA QUERELA 
 
 3 Blackstonc's Commentaries 406 
 
 An audita querela is where a defendant, against whom judg- 
 ment is recovered, and who is therefore in danger of execution, or 
 perhaps actually in execution, may be relieved upon good matter of 
 discharge, which has happened since the judgment; as if the plain- 
 tiff hath given him a general release; or if the defendant hath paid 
 the debt to the plaintiff without procuring satisfaction to be entered 
 on the record. In these and the like cases, wherein the defendant 
 hath good matter to plead, but hath had no opportunity of pleading 
 it (either at the beginning of the suit, or puis darrein continuance, 
 which, as was shown in a former chapter, must always be before 
 judgment), an audita querela lies, in the nature of a bill in equity, 
 
 an execution as above mentioned to be void, we must also hold, with Mr. 
 Justice Butler (i Rich. (S. Car.) 21) that 'no conveyance can be good, which 
 rests upon that which is null and void.' " Accord : Hammat v. IVyman, g Mass. 
 138 (1812) ; King v. Goodwin, 16 Mass. 63 (1819) ; Jackson ex dent. Clark v. 
 Morse, 18 Johns. (N. Y.) 441, 9 Am. Dec. 225 (1821) ; Bates v. Pilling, 6 B. & 
 C. 38 (1826) ; 9 Dis. R. 44; 5 L. J. (O. S.) K. B. 40; Jackson ex dem. Ander- 
 son V. Anderson, 4 Wend. (N. Y.) 474 (1830) ; Swan v. Saddlemire, 8 Wend. 
 (N. Y.) 676 (1832); Hunter v. Stc-venson, i Hill (S. Car.) 415 (1833); 
 Cameron v. Irwin, 5 Hill (N. Y.) 272 (1843) ; Thrower v. Vaughan, i Rich. L 
 (S. Car.) 18 (1844); Mouchat v. Brozvn, 3 Rich. L. (S. Car.) 117 (1846) 
 Neilson v. Neilson, 5 Barb. (N. Y.) 565 (1849); Den ex dem. Miirrell v, 
 Roberts, 11 Ired. (N. Car.) 2>2>, 424, 53 Am. Dec. 419 (1850) ; Craft v. Merrill 
 14 N. Y. 456 (1856) ; State v. Salyers, 19 Ind. 432 (1862) ; Weston v. Clark 
 37 Mo. 568 (1866) ; Lee v. Rogers, 2 Sawyer 549, Fed. Cas. No. 8201 (1874) 
 Splahn V Gillespie, 48 Ind. 397 (1874) ; Finley v. Cant, 8 Baxt. (Tenn.) 148 
 (1874) ; State v. Prime, 54 Ind. 450 (1876) ; Frost v. Yonkers Sav. Bank, 70 
 N. Y. 553, 26 Am. Rep. 627 (1877); Huff v. Morton, 83 Mo. 399 (1884); 
 Chapin v. McLaren, 105 Ind. 563, 5 N. E. 688 (1885) ; Shaffer v. McCrakin, 90 
 Iowa 578, 58 N. W. 910, 48 Am. St. 465 (1894) ; O'Brien v. Allen, 42 Wash. 
 393, 85 Pac. 8 (1906). Contra: Lcgard v. Daly, 1 Ves. Sr. 192 (1748) semble; 
 Smtmis jv , Alexander, 3 Yentps CPp.') 268 (1801) ; Boren v. McGehee, 6 Port. 
 (Ala.) 432, 31 Am. Dec. 695 (1837) ; _Gz&&iJV_jy^^//ji;^_7_ W'atts (Pa.X 305 
 (1838) ; Doe ex dem. Van Camp en v. Snyder, 3 How. (Miss.) 66, 32 Am. Dec. 
 311 (183S) ; Bishop V. Gregory, 5 B. Mon. (Ky.) 359, 27 Ky. L. 478, 85 S. W. 
 1 197 (1845): Dean v. Connelly, 6 Pa. St 239 (1847 ) ; Morton v. Grenada 
 Male & Female Academies, 8 Sm. & M. (Miss.) 773 (1847) semble; Warners. 
 Blakeman, 36 Barb. (N. Y.) 501 (1862) ; Nichols v. Dissler, 31 N. J. L. 461, 
 86 Am. Dec. 219 (1863) ; Wolticn v. O'Mall ey, 12 Lane. Bar (Pa.)_ 6 (1880) ; 
 .^ ( j, lf.p.dflrx V CrmiM, 19/] Pa" .S^ 2^ t6 Atl. 807 (iSSgY; Slater v. Alston, 103 
 
 ^. 
 
 Ala. 605, 15 So. 944, 49 Am. St. 55(1893). 
 
 In Hoff man v. Strohecker. 7 Watts (Pa .) 86, 32 Am. Dec. 740 (1838), it 
 is said per Rogers, J. : "In Swan v. Saddlemire, 8 Wend. (N. Y.) 676, it is 
 ruled that an execution upon a judgment, which has been paid and satisfied, 
 is absolutely void, and not merely voidable, and a purchaser imder such 
 execution acquires no title. If it is intended to say that a purchaser without 
 notice acquires no title, I should adopt the principle with great hesitation, 
 and should be much inclined to doubt the policy of establishing such a rule. 
 It would not be for the plaintiff and defendant, imder such circumstances, 
 to complain, as the injury would result from their own fraud or negligence, in 
 not causing satisfaction to be entered on the judgment. It would be imposing 
 upon a purchaser at sheriff's sale the necessity of ascertaining whether the 
 debt had been paid. He has a right to purchase on the faith of the records 
 of the court which import verity." See u.\so ^ibsqn V. Winslow, 3 8 Pa. St. 4 Q 
 (1S60); Capital Bank of Topeka v. Huntoon, 35 Kans. 577, II Pac. 369 
 (1886) ; Kezar v. Elkins, 52 Vt. 119 (1879).
 
 774 EXF.CL'TION 
 
 to be relieved ng;ainst the oppression of the i^ainli ff. It is a Avrit 
 dircctetl to tlic court staling that the complaint of the defendant 
 hath been heard, audita querela defendcntis, and then, setting out 
 the matter of the complaint, it at length enjoins the court to call the 
 parties before them, and, having heard their allegations and proofs, 
 to cause justice to be done between them. It also lies for bail, v^hen 
 judgment is obtained against them by scire facias to answer the debt 
 of their principal, and it hai'>pcns afterwards that the original judg- 
 ment against their principal is reversed ; for here the bail, after judg- 
 ment had against them, have no opportunity to plead this special 
 matter, and therefore they shall have redress by audita querela; 
 which is a writ of a most remedial nature, arid seems to have been 
 invented lest in any case there should be an oppressive defect of 
 justice, where a party who hath a good defense is too late to make 
 it in the ordinary forms of law. But the indulgence now shown by 
 the courts in granting a summary relief upon a motion, in cases of 
 such evident oppression, has almost rendered useless the writ of 
 audita querela, and has driven it quite out of practice.®^* 
 
 ^^Turner v. Davics, 2 William's Saunders, 137 (1670), and notes. In 
 Sutton V. Bishop, 4 Burr. 2283 (1769), audita querela is referred to by the 
 court as an old legal remedy long disused and expensive, but in Baker v. 
 Ridgzvay, 2 Bing. 41 (1824), it is said by Best, C. J., that audita querela 
 is neither a difficult nor an obsolete proceeding, and in Simons v. Blake, 4 
 Dowl. 263 (1S35), it was held that the court would relieve on summary 
 motion if the case was clear but not otherwise. In England, the rules of the 
 Supreme Court now provide. Order XLII, rule 27: "No proceeding by audita 
 querela shall hereafter be used; but any party against whom judgment has 
 been given may apply to the court or a judge for a stay of execution or 
 other relief against such judgment, upon the ground of facts which have 
 arisen too late to be pleaded; and the court or judge may give such relief 
 and upon such terms as may be just." 
 
 In Pennsylvania thc writ is nol^obsplete, as was at one time supposed, 
 and it has been occasionally resorted to. Sdiot^t v^AleJiarlmidj^jJEhJl^^JJ'a.) 53 
 (1850) ; Daly v. Derringer, i Phila. (Pa.) 324 (1852) ; Keen v. Vm^lJMh^^S^PS:. 
 477 (1865) ; R merv'vTPaifo n, Q^PhUaZTPa.) 125 ( i87s)';'Gordonier v Bi llings, 
 77JPa._SJ-4e^(i875) semhlc: IJ'illinjnx v. Butcher, i \VJsr: C.'304, 7Xeg. Gaz. 
 129 (1874); McLean v^ /)/;;.''/. _v, 114 i':i. ."-^1. >.'), X All. i (1886) semble. In 
 Co r,t monweaUh wJJJerriQ]-^i^ iihiL-;. (i^;.^ 237 (1J71;, it is .said per Paxson, J.: 
 "It IS too Tate to question the right to issue such writ in a case where the 
 defendant has a defense wdiich he has had no day in court to plead. But 
 every relief that could be obtained by mtdita querela is now grantable on 
 motion. The latter more simple and speedy form of proceeding has driven 
 this ancient and cumbrous remedy out of general practice." 
 
 The writ issues out of the court in which the judgment was entered, 
 only upon petition and special allowance by the court. Waddington v. 
 Vredenbergh, 2 Johns. Cas. 227 (1801) ; Dearie v. Ker, 7 D. & L. 231, 18 L. J. 
 Ex. 448 (1849) ; Troup v. Ricardo, 33 Beav. 122 (1863) ; Newhart v . Wolfe, 
 l02Pa^_5fLi_4+8§3). ^ ' 
 
 In New York it is said that the remedy by audita querela is not abol- 
 ished by the code but is preserved and may be resorted to where something 
 has occurred since the rendition of judgment making its enforcement unjust 
 or inequitable or when some fact exists which could not have been pleaded 
 in the former suit. Mallory v. Norton, 21 Barb. (N. Y.) 424 (1856) ; Smith v. 
 McCluskey, 45 Barb. (N. Y.) 610 (1866); Phillips v. Dusenberry, 8 Hun 
 (N. Y.) 348 (1876).
 
 FOSS V. WITH AM 775 
 
 MARK H. FOSS v. GEORGE P. WITHAM. 
 
 Supreme Judicial Court of Massachusetts, 1865 
 
 91 Mass. 572 
 
 Audita querela, brought to reverse a judgment erroneously ren- 
 dered in favor of the defendant in an action brought by him against 
 the plaintiff, who lived out of the state and had no sufficient notice 
 of the action; and to supersede an execution issued on such judg- 
 ment. Judgment was entered in the Superior Court by Ames, J., 
 reversing the judgment and superseding the execution, as prayed 
 for; and an order was passed that the original action should be 
 brought forward on the docket, and the entry of judgment and 
 default be stricken off, and the action remain upon the docket for 
 further directions ; and to this order the plaintiff alleged exceptions. 
 
 Hoar, J. : We are of opinion that the exceptions in this case 
 must be sustained. The writ of audita querela is the commencement 
 of a suit at common law, recognized also by statute in this common- 
 wealth, in which the plaintiff asks to be relieved from a judgment 
 or execution, or both, by reason of some matter affecting their 
 validity which he has not had an opportunity to plead. If the exe- 
 cution has been satisfied in whole or in part, or he has been impris- 
 oned upon it, he may recover compensation in damages in the audita 
 querela. The writ in this case is properly framed for these objects. 
 The plaintiff prays for the relief adapted to his case. But the de- 
 fendant is not an actor in the suit; and no proceedings are to be 
 had in it for his benefit. Either the plaintiff prevails in whole or 
 in part, and recovers judgment to the extent to which he is entitled 
 to it, or there is a judgment for the defendant, and this is the whole 
 scope and effect of the audita querela. 3 Bl. Comm. 405, 406 ; Fitzh. 
 Nat. Brev. 102, 105; Gen. Stats, ch. 145, sections 1-7; Love joy v. 
 Webber, 10 Mass. loi ; Dingman v. Myers, 13 Gray. 1.°^^ 
 
 The plaintiff is entitled to a reversal of the judgment errone- 
 ously entered against him, to a supersedeas of the execution which 
 improvidently issued, and to his costs. So far the judgment of the 
 superior court was right, and should be supported. But we find 
 no authority for making an order as to any further proceedings in 
 the former suit, under this process. It has sometimes been the prac- 
 tice of courts to give the relief which an audita querela affords, in 
 
 *°t)Accord: Hyde v. Morlcy, Cro. Eliz. 40 (1584) ; Child v. Durrani, Cro. 
 Jac. 3S7 (1615) ; Flower v. Elgar, Cro. Car. 214 (1631) ; Dingman v. Myers, 
 79 Mass. I (1859); Marshall v. Mcrritt, 95 Mass. 274 (1866). See also, 
 Anonymous, i Vent. 264 (1674) ; Anonymous, 12 Mod. 598 (1700) ; White v. 
 Harris, 5 Humph. (Tenn.) 421 (1844); Alexander v. Abbott, 21 Vt. 476 
 (1849) ; Merritt V. Marshall, loo Mass. 244 (1868) ; Folan v. Folan, 59 Maine 
 566 (1871); Radclyffe v. Barton, 161 Mass. 327, 27 N. E. 273 (1894), and 
 cases there cited; Walter v. Foss, 67 Vt. 591, 32 Atl. 643 (1895); Russell 
 Lumber Co. v. Smith, 82 Conn. 517, 74 Atl. 949 (1909) ; 4 Cyc. 1058; 3 Enc. 
 PI. & Pr. 113. Where the proceedings in an action are wholly void for want of 
 jurisdiction there is no necessity for an audita querela. French v. White, 7^^ 
 Vt. 89, 62 Atl. 35, 2 L. R. A. (N. S.) 804 (1905).
 
 776 EXECUTION 
 
 a suiiiinaiv wav, uinm motion, wlicn the facts are not in dispute and 
 recent. Ld. Kaym. 1J95 ; i I\I. & S. 199; 4 Johns. 191; 17 Johns. 
 487; Loi'CjOV V. IVcbbcr, ubi suf^ra. If the jM-occcdings here had 
 been upon niotion, we do not mean to decide that they would have 
 been erroneous. But the order to bring forward the former action, 
 if it is competent to the court to make it, is an entirely separate 
 matter, and is not to be entered as a part of the judgment in the 
 present suit. 
 
 Exceptions sustained. 
 
 SECTION 10. SATISFACTION OF EXECUTIONS 
 
 JIXKS r. AMERICAN MTG. CO. OF SCOTLAND 
 Supreme Court of Georgia, 1897 
 102 Ga. 69 
 
 Cobb, J. : The American Mortgage Company of Scotland, Lim- 
 ited, obtained a judgment against jinks on the twenty-sixth day of 
 February, 1890, for $1,200 principal, $226.28 interest, $142.62 at- 
 torney's fees, and $11.75 costs. On October 2, 1890, an execution 
 issued on this judgment was levied upon certain land as tlie prop- 
 erty of the defendant in execution. On the fifth day of December, 
 1893, the sheriff made the following entry upon the execution: 
 "After duly advertising the within-described levied lands according 
 to law in iJie 'Butler Herald' nev/spaper, the official gazette of the 
 county, I this day exposed the same to sale before the court house 
 door 'in the town of Butler, Taylor County, Georgia, within the 
 legal hours of sale, and knocked the same off to Austin Corbin for 
 the sum of nineteen hundred dollars, he being the highest and best 
 bidder. This fifth day of December, 1893. C. A. J. Pope, Sheriff." 
 
 On ]\Iarch 5, 1894, the sheriff levied the execution again upon 
 a part of the property described in the former levy, as well as other 
 property of the defendant. To this levy the defendant interposed 
 an affidavit of illegality, setting up that prior to December 5, 1893, 
 he had paid in cash upon the execution the sum of five hundred 
 dollars and that tliis sum, together with the amount named in the 
 entry of the sheriff relating to the former levy, was more than 
 sufficient to discharge the execution. Upon the trial of the issue 
 formed upon this affidavit of illegality, the judge directed a verdict 
 in favor of the plaintiff in execution. In this we think that he 
 erred. The entry of a sheriff on process in his hands is generally 
 not traversable. Higgs v. Huson, 8 Ga. 317, 321. Such an entry 
 may be traversed, however, for fraud or collusion. Tillman v. Davis, 
 28 Ga. 494; Sprinz v. Frank, 81 Ga. 162. The code "widened the 
 laws of traverse as to returns of service." Civil Code, section 4988 ; 
 Dozier v. Lamb, 59 Ga. 461. But the returns of sheriffs and other 
 lev}Mng officers upon final process in their hands are still governed 
 by tlie law as it stood before the code was adopted.
 
 JINKS V. AMERICAN MTG. CO. jy^ 
 
 It being admitted upon the trial that the payment of five hun- 
 dred dollars had been made,^'* and the execution when introduced in 
 evidence showing an entry of a sale at which an amount more than 
 sufficient to pay the balance due on the execution was realized, the 
 execution appears on its face to have been paid off, and therefore 
 a levy subsequent to such entry was prima facie void. As long as 
 the entry of the sheriff reciting a sale at an amount more than that 
 due -on the execution stands upon the records unimpeached and un- 
 challenged, such entry is conclusive upon the plaintiff in execution. 
 If the entry is false, the officer making it is liable in damages to 
 any one injured thereby. If it was made fraudulently or collu- 
 sively, it may be attacked and set aside at the instance of any one 
 who is the victim of such fraud or collusion. As the amount of 
 the purchase money stated in the sheriff's return of the sale is suffi- 
 cient to pay off the entire amount then due on the execution, the 
 process is satisfied, so far as the defendant is* concerned. If the 
 purchaser has not paid the bid, suit may be brought against him 
 for the purchase money, or the property can be resold at his risk; 
 and if an amount equal to the final bid at the first sale is not realized, 
 the purchaser at such sale is liable for such deficiency. Civil Code, 
 section 5466. 
 
 Judgment reversed.®^ 
 
 "Payment of the debt in full to the proper officer discharges the execu- 
 tion, although the creditor does not receive the money. Rook v. IVilmot, Cro. 
 Ehz. 209 (1590) ; O'Neall v. L^isk, i Bailey (S. Car.) 220 (1829) ; Beard v. 
 Millikan, 68 Ind. 231 (1879), and payment of part will be a satisfaction pro 
 tanto, Sandburg v. Papineaii, 81 111. 446 (1876). 
 
 *^A sale of the debtor's property discharges the execution to the extent 
 of the proceeds of the sale. Hoyt v. Peterson, 4 Johns. (N. Y.) 188 (1809) ; 
 Hamlin v. Boiighton, 4 Cow. (N. Y.) 65 (1825); freeman v. Caldwell, 10 
 Watts (Pa .) 9 (1840); Planters' Bank v. Spencer, li l^ITss. (3 SinT^' M.) 
 305 (1844") ; McCluskey v. McNeeley, 8 111. (3 Gilm.) 578 (1846) ; Doe ex dem. 
 Reynolds V. Ingersoll, 19 Miss. (11 Sm. & M.) 249, 49 Am. Dec. 57 (1848) ; 
 Murrell v. Roberts, 33 N. Car. 424, 53 Am. Dec. 419 (1850) ; Gray v. Grisivold, 
 7 How. Pr. (N. Y.) 44 (1852); Niolin v. Hamner, 22 Ala. 578 (1853); 
 Halcombe v. Loudermilk, 48 N. Car. (3 Jones) 491 (1856) ; Eftlinger v. 
 Tanscy, 17 B. Mon. (Ky.) 364 (1856) ; Rutledge v. Townsend, 38 Ala. 706 
 (1863) ; Dough^s' Appeal, 48_Pa,_Si. 22^^1864) ; McDevitt's Appeal, 70 Pa. 
 St. Z72> (i872)rKlemJIens v. Phelps, 6 Hun (N. Y.) 568 (1876) ; Elliott v. 
 Hiagins, 83 N. Car. 459 (1880) ; Hooh mgh's Appeal, 122 PgL_St._88>.i5 Atl. 
 669 (1888); Cakj-^ V Bird, T ATnnag-.TP^ /]60, 470, 15 Atl. 774 (1888) ; 
 Boos v. Morgan, 130 Ind. 305, 30 N. E. 141 (1891) ; Tonopah Banking Co. v. 
 McKane Mining Co., 31 Nev. 29S, 103 Pac. 230 (1909) ; Herr v^ Lancaster 
 Trust Co.. 47 Pa.. ,Smier>-Ct^6^ (19^1} ■ 
 
 Taking the defendant on a capias ad satisfaciendum, at common law. 
 discharges the debt, at least to the extent that other writs can not issue while 
 he is in custody, and, if he is released by the act of the creditor no further 
 execution can issue. Burnaby's Case, I Str. 653 (1725); Vigcrs v. Aldrich, 
 4 Burr. 2482 (1769) ; Tanner v. Hague, 7 Term Rep. 416 (1797) ; Jacques v. 
 Withey, i D. & E. 557, i H. Bl. 65 (1787) ; Clark v. Clement, 6 D. & E. 525 
 (1796) ; Blackburn v. Stupart, 2 East 243 (1802) ; Lambert v. Parncll, 15 L. J. 
 
 Q. B. 55 (1845); "Shnrpe ^_^±e c_kenagle, 3.Serg. & R. (Pa.) 463 (1817); 
 508 (1819) ; Loomis v. Stoors, 4 Conn. 440 (1822) ; 
 
 Miller v. Miller, 5 N. J. L. ^ ^ 
 
 Cooper V. Bigalow, l Cow. (N. Y.) 56 (1823) ; Sunderland v. Loder, 5 Wend. 
 (N. Y.) 58 (1830); Tappan v. Evans, 11 N. H. 311 (1840); McCrillis v. 
 Sisson, I R. I. 143 (1840) ; Dodge v. Doane, 57 Mass. (3 Cush.) 460 (1849) ; 
 Kennedy v. Diincklee, 67 Mass. (l Gray) 65 (1854) ; State v. Dodge, 24 N. J.
 
 --S EXECUTION 
 
 UNITlvD STATES r. DASHIEL 
 
 Supreme Court ok the United States, 1865 
 70 U. S. 688 
 
 Debt by the United States for $20,085.74 against Major Dashiel, 
 a paymaster in the army, and his sureties. The defendant claimed 
 that he had been robbed of part of the funds in his care. On the 
 trial there was a verdict for the United States for $10,318.22 and 
 iudgment. Not satisfied with the judgment the United States took 
 "a vait of error to this court on September i, i860. On the fifteenth 
 of April, i860, however, before taking its writ of error, the govern- 
 ment sued out execution against Dashiel and levied on a large 
 amount of real estate and on eight slaves sufficient in all to satisfy 
 the judgment. On the fifth of June, i860, the deputy marshal 
 sold a portion of the real estate for $5,275, and then adjourned the 
 sale to enable the defendant to find purchasers for his property .^^ 
 
 Mr. Paschall, for the defendant in error, moved to dismiss the 
 writ of error on the ground that there was an execution sued out 
 by the plaintiff, a levy, sale and satisfaction. 
 
 Mr. Speed, attorney-general, contra. 
 
 Clifford, J. : Execution was issued on the judgment on the 
 fifteenth day of April, and the return of the marshal shows that on 
 the twenty-eighth day of the same month he seized certain real 
 property and slaves sufficient in all to satisfy the judgment. For- 
 mality of an advertisement, prior to sale, was omitted by the marshal 
 at the request of the principal defendant, and on the fifth day of 
 June following, the marshal sold certain parcels of the real prop- 
 erty at public auction, amounting in the whole to the sura of five 
 thousand two hundred and seventy-five dollars, as appears by his 
 return. Nearly half the amount of the judgment was in that 
 manner satisfied, but the clear inference from the return of the 
 marshal, and the accompanying exhibit, is that the sale was sus- 
 pended and discontinued at the request of the principal defendant 
 and for his benefit. Request for the postponement of the sale came 
 from him, and it was granted by the marshal, as stated in the rec- 
 ord, the better to enable the defendant to find purchasers for his 
 property. Writ of error v/as sued out by plaintiffs on the first day 
 of September, i860, and was duly entered here at the term next 
 succeeding, and since that time the case has been pending in this 
 court. 
 
 Motion to dismiss is grounded solely upon the alleged fact that 
 the judgment was satisfied before the writ of error was sued out 
 
 L. 671 (1855); Nowell V. Waitt, 121 Mass. 554 (1877)- Butif the debtor 
 escape or is discharged without the assent of the creditor it is not a satis- 
 faction. Richhorojigh v. IVest, i Hill (S. Car.) 309 (1833); Bowrell v. 
 Zigler, 19 Ohio 362 (1852). 
 
 "The statement of facts is abridged, and the arguments of counsel and 
 part of the opinion of the court omitted.
 
 UNITED STATES V. DASHIEL 779 
 
 and prosecuted. Matters of fact alleged in a motion to dismiss, if 
 controverted, must be determined by the court. Actual satisfaction 
 beyond the amount specified in the return of the marshal can not 
 be pretended, but the theory is, that the levy of the execution in 
 the manner stated affords conclusive evidence that the whole amount 
 was paid, and it must be admitted that one or two of the decided 
 cases referred to appear to give some countenance to that view of 
 the law ; that is, they assert the general doctrine that the levy of 
 an execution on personal property sufficient to satisfy the execution 
 operates per se as an extinguishment of the judgment.^'' None of 
 those cases, however, afford any support to the theory that any 
 such effect will flow from the issuing of an execution, and the levy- 
 ing of the same upon land. On the contrary, the rule is well settled 
 that in the latter case no such presumption arises, because the judg- 
 ment debtor sustains no loss by the mere levy of the execution, and 
 the creditor gains nothing beyond what he already has by the lien 
 of his judgment.^® Reason given for the distinction is that the 
 land in the case supposed remains in the possession of the defend- 
 ant, and he continues to receive and enjoy the rents and profits. 
 Many qualifications also exist to the general rule as applied to the 
 
 ^'Moiintncy v. Andreivs, Cro. Eliz. 237 (1591) ; Clerk v. Withers, i Salk. 
 322, 2 Ld. Raym. 1072 (1705) ; Ladd v. Blunt, 4 Mass. 402 (1808) ; Cutler v. 
 Colyer, 3 Cow. (N. Y.) 30 (1824) ; Ex parte Lawrence, 4 Cow. (N. Y.) 417, 
 15 Am. Dec. 386 (1825). In Peck v. Tiffany, 2 N. Y. 451 (1849), it is said: 
 "There are some old cases in which dicta are found, that a levy upon suffi- 
 cient property to satisfy the execution is a satisfaction, but that doctrine has 
 long since been exploded. Where a sheriff levies upon sufficient property, and 
 through his negligence or misconduct it is lost, destroyed or otherwise dis- 
 posed of, so that the defendant is deprived of the benefit of it, there is no 
 doubt it should be regarded as a satisfaction of the execution and the plain- 
 tiff must in such case seek his remedy against the sheriff. But where the 
 debtor has neither paid the debt, nor been deprived of his property, the simple 
 act of levying upon it is not a satisfaction, whether the debtor has been per- 
 mitted to retain the property either by his own misconduct, or by his request, 
 or the voluntar>' act of the officer, because neither works any wrong to him." 
 See also, the opinion of Cowen, J., in Green v. Burke, 23 Wend. (N. Y.) 
 490 (1840), and Giles v. Grovcr, 6 Bligh. (N. S.) 277 (1832). 
 
 ^Shcpard v. Roive, 14 Wend. (N. Y.) 260 (1835) ; Taylor v. Ranney, 4 
 Hill (N. Y.) 619 (1843). An elegit executed by extent returned and filed, is 
 a full satisfaction of the judgment debt. Co. Litt. 290 ; 2 Wms. Saund. 68 n ; 
 Bac. Abr., execution, D; Crawley v. Lidyeat, Cro. Jac. 338 (1614) ; Hcle v. 
 Bexley, 17 Beav. 14 (1853). And so where land is set off to the creditor. 
 Barnet v. IVashebaugh, 16 Serg. & R. (Pa.) 410 (1827) ; IVareham Savings 
 Hank V. l/auglian, 133 Mass.'534 (TB82). But otherwise if the extent is void. 
 Pullen V. Purbeck, 12 Mod. 355 (1700). Or ineffective. Leahy v. Dancer, 
 I Mol. 313 (1828) ; Cowles v. Bacon, 21 Conn. 451, 56 Am. Dec. 371 (1852). 
 And, generall}', a levy on land is not prima facie a satisfaction of the debt. 
 Ladd v. Blunt, 4 Mass. 402 (1808) ; Gro v^ Hunting to n Bank , i P. & W. (Pa.) 
 425 (1830) ; Reynolds v. Rogers, 5 Ohi^i69 (1831) ; Hogshead v. Carruth, 
 5 Yerg. (Tenn.) 227 (1833) ; Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 
 338 (1853) ; Taylor's Appeal i Pa. S t^ 390,(1^45) ; White v. Graves, 15 Tex. 
 183 (1855); Robinson V. Brown, 82 111. 279 (1876); Bellows v. Sowles, 
 yi Vt. 214, 44 Atl. 68 (1898). In Indiana a levy on real estate is a satisfaction 
 to the same extent as on personalty. Lindley v. Kelley, 42 Ind. 294 (1873); 
 Touhcy V. Touhey, 151 Ind. 460, 51 N. E. 919, 68 Am. St. 233 (1898).
 
 -So EXFXUTION 
 
 low of an execution upon the goods of the judj^mcnt debtor, as 
 might be ilhistrated and enforced by numerous decided cases. Where 
 the goods seized arc taken out of the possession of the debtor, and 
 tlicvarc sulVicient to satisfy the execution, it is doubtless true, that 
 if the marshal or sherilT wastes the goods, or they are lost, or de- 
 stroyed by the negligence or fault of the officer, or if he misapplies 
 the proceeds of the sale, or retains the goods and does not return 
 the execution, the debtor is discharged; but if the levy is over- 
 reached by a prior lien, or is abandoned at tlie request of the 
 debtor or for his benefit, or is defeated by his misconduct, the levy 
 is not a satisfaction of the judgment. Rightly understood, the pre- 
 sumption is only a prima facie one in any case, and the w^hole 
 extent of the rule is that the judgment is satisfied when the execu- 
 tion has been so used as to change the title of the goods, or in some 
 way to deprive the debtor of his property. When the property is 
 lost to the debtor in consequence of the legal measures which tlie 
 creditor has pursued, the debt, says Bronson, C. J.,^^ is gone, al- 
 though the creditor may not have been paid. Under those circum- 
 stances the creditor must take his remedy against the officer, and 
 if there be no such remedy he must bear the loss. 
 
 Tested by these rules, and in the light of these authorities, it is 
 very clear that the theory of fact assumed in the motion can not 
 be sustained. Satisfaction of the judgment beyond the amount 
 specified in the return of the marshal is not only not proved, but 
 the allegation is disproved by the amended record. 
 
 Motion denied.^*' 
 
 Grier, Nelson and Swayne, J J., dissent. 
 
 ^People V. Hopson, i Denio (N. Y.) 574 (1845). 
 
 "A levy on personal property to the amount of the debt is prima facie 
 a satisfaction of the execution, but the presumption may be rebutted. Hoyt 
 v. Hudson, 12 Johns. (N. Y.) 207 (1815) ; Mcintosh v. Chew, i Blackf. (Ind.) 
 289 (1823); Himt V. Breading ^z^^xex.^. & R (Pa.) 37. 14 Am. Dec. 665 
 (1824); Ontarw^ank v. Hallctt, 8 Cow. (N. Y.) IQ2 (1828); Duncan v. 
 //arm, 17_ S£rg^_R.-4JEa.) 436 (1828) ; Carroll v. Fields, 6 Yerg. (Tenn.) 
 305 (1834) ; Ford v. Commrs. of Geauga County, 7 Ohio 492 (1836) ; Peck 
 v. Barney, 12 Vt. 72 (1840) ; Green v. Burke, 23 Wend. (N. Y.) 490 (1840) ; 
 Ostrandcr v. Walter, 2 Hill (N. Y.) 329 (1842) ; Taylor's Appeal, 1 Pa. St. 
 390 (1845) ; Waddell v. f.lmendorf, 5 Denio (N. Y.) 447 (1848) ; Campbell 
 V. Carey, 5 Harr. (Del.) 427 (1854) ; Davids _v, Harris, 9^ P_a^,S_t^50l_(i848) ; 
 Lucas V. Cassaday, 2 Greene (iowa)~2o8 (1849) ; Montgomery v. Wayne, 
 14 111- 2>72> (1853) ; Lyon v, Ha m pt on^ 20 Pa. St. ^6 (1852) ; Brown v. Kidd, 
 34 Miss. 291 (1857) ; Camphell^Bredlin WVoI F^l^e al, ?a Pa. S t 88 8.^8) ; 
 Garner v. Cutler, 28 Tex. 175 0866) ; Walker v. ~Comm., i8~Gratt (Va.) 
 13, 98 Am. Dec. 631 (1867) ; Carr v. IVeld, 19 N. J. Eq. 319 (1868) ; Hunn v. 
 Hough, 5 Heisk. (Tenn.) 708 (1871) ; Wilson v. Hatfield, 121 Mass. 551 
 (1877) ; Bookstaver v. Glennv, 3 T. & C. (N. Y.) 248 (1874) ; Smith v. Reed, 
 52 Cal. 345 (1877) ; Chandler v. Goodrich, 58 N. H. 525 (1879) ; McCahe v. 
 Goodwine, 65 Ind. 288 (1879) ; Oliver v. Georgia, 64 (^a. 480 (1880) ; McFver 
 V. Ballard, 96 Ind. 76 (1884); Chandler v. Higgins, 109 111. 602 (1884); 
 McKcnzie v. Wiley, 27 W. Va. 658 (1886) ; Conway v. Wilson, 44 N. J. Eq. 
 457, II Atl. 734 (1888) ; Smith v. Condon, 174 Mass. 550, 55 N. E. 324, 75 Am. 
 St. Z72 (1899).
 
 PEOPLE EX REL. FITCH V. MEAD 781 
 
 SECTION II. SUPPLEMENTARY PROCEEDINGS 
 
 PEOPLE EX REL. FITCH v. MEAD 
 
 Supreme Court of New York, Special Term, 1865 
 
 29 Hoiv. Pr. (N. y.) 360'* 
 
 E. Darwin Smith, J. : The return to this writ of habeas corpus 
 shows that the relator is imprisoned by the sheriff of Cayuga County 
 upon a process for a contempt, specially and plainly charged in the 
 commitment, issued by the county judge of Cayuga county, an 
 officer clearly having authority to commit for the contempt so 
 charged. By the forty-first section of the habeas corpus act, it is 
 provided that when it appears by the return that the prisoner is in 
 custody in such case, he can only be discharged from such impris- 
 onment in one of five cases therein specified, none of which is 
 applicable to this case except the first, which is, "when the jurisdic- 
 tion of such court or officer has been exceeded, either as to matter, 
 place, sum or person." 
 
 The county judge clearly had jurisdiction in proceedings sup- 
 plemental to execution. The proper order for the appearance be- 
 fore him of the relator was duly made under section 292 of the code, 
 upon due proof of recovery of a judgment in this court, and that 
 an execution therein had been duly returned unsatisfied, and such 
 order had been duly served upon the relator, and he in pursuance 
 of the requirements thereof had duly appeared! before said judge 
 to submit to the examination thereby directed. The county judge 
 had thus also duly acquired jurisdiction of the person of the relator, 
 according to the statute. 
 
 The examination of the relator had been commenced, but as 
 the proof clearly shows, had not been completed and the proceed- 
 ings had been duly continued for that purpose by adjournment at 
 the instance, and for the benefit of the relator, and in consequence 
 chiefly of his sickness, up to the time when the alleged contempt v^^as 
 committed, by the refusal of the relator to answer such further 
 proper questions as he was required to do by the county judge. 
 The refusal of the relator to make answer before the county judge, 
 which is the contempt for which he was convicted and stands im- 
 prisoned, was put upon the ground at the time, under tlie advice of 
 his counsel, that the county judge had lost jurisdiction of his per- 
 son and of the proceedings, by the appointment of a receiver of 
 the property and effects of the relator, and the filing of the order 
 for such appointment and the testimony then taken, in the county 
 clerk's office. And this was the point relied upon, by the counsel 
 for the relator, in his argument here for the discharge of the re- 
 lator, upon the return of the writ of habeas corpus. If it be sound, 
 it would follow that the county judge exceeded his jurisdiction in 
 
 "The statement of facts and parts of the opinion are omitted.
 
 ^S2 EXFXUTION 
 
 rciiuiriii}^ the relator to answer the questions put to hhn ; that he 
 liad then lost jurisdiction of his person and of the procecdinpfs, and 
 the relator would be entitled to a discharge from his imprisonment 
 for the alleged contempt. 
 
 The ari;iiment of the learned counsel for the relator is, that 
 the ajipointment of a receiver of the property of the judgment 
 debtor, is the chief object and end of these proceedings, supple- 
 mental to execution, and that upon such appointment the proceed- 
 ing is terminated; that such appointment is the final step in the 
 proceedings, like final judgment, and that the jurisdiction of the 
 otficer is thereupon at an end. This view of the proceedings, I 
 think, is a mistaken one. They were designed to be a substitute 
 in part for the creditor's bill of the court of chancery, under the 
 old system. For the proceedings by suit, subpoena and injunction, 
 calling for a discovery upon oath, and involving the appointment of 
 a receiver, an order from a judge requiring an oral examination and 
 discovery before the judge or a referee out of court, is substituted. 
 It is a summary proceeding, accomplishing the same end with a 
 creditor's bill, and at small expense to the parties. I think it was 
 to some extent borrowed from the one hundred and ninety-first rule 
 of the court of chancery, in force when that court expired. This 
 rule provided that) the debtor against whom a creditor's bill was 
 filed, should not be subjected to the expense of putting in an answer 
 thereto in the usual manner, if he should cause his appearance to 
 be entered, and should within twenty days after service of a copy 
 of the bill and notice of an order to answer, deliver to his com- 
 plainant a written consent that an order might be entered taking 
 the bill as confessed, and for the appointment of a receiver, and 
 for a reference to take the examination of the defendant in con- 
 formity with the rule. Upon presenting such stipulation to the court, 
 the complainant was entitled to an order directing the bill to be 
 taken as confessed against a debtor, and referring it to a master 
 to appoint a receiver and take the examination of the debtor. The 
 order also directed the debtor to transfer to such receiver under 
 oath, all his property and equitable interests, and things in action, 
 and that he appear from time to time before the master for that 
 purpose, and to submit to such examination as the master should 
 direct; and what was accomplished under this system by the filing 
 of the creditor's bill, the injunction thereupon, the stipulation of 
 the defendant under said rule, and the order taking the bill as con- 
 fessed, and for a reference to appoint a receiver and take the exam- 
 ination of the defendant, is now accomplished by a simple order 
 of a judge, under section 292 of the code, and with the proper pro- 
 ceeding under chapter two of the code, entitled, "proceedings sup- 
 plemental to the execution." 
 
 The appointment of the receiver was under said rule 191, or 
 might have been, the first step in the master's office under the order 
 of reference, and I think in practice was ordinarily the first step 
 taken on the appearance of the defendant before the master. After 
 the receiver was appointed, the defendant was then examined, and
 
 PEOPLE EX EEL. FITCH V. MEAD 783 
 
 required by the master to deliver to the receiver the property dis- 
 covered on such examination. I do not see why this is not tlie 
 proper practice now, upon the return of this order for the exam- 
 ination of; the defendant before the judge, under section 292. If 
 the receiver is not generally appointed immediately on the return 
 of the order, I suppose it is omitted to save expense, but I have no 
 doubt that the officer instituting and conducting these proceedings 
 supplemental, may appoint the receiver at any time while the pro- 
 ceedings are pending before him in his discretion, and think the 
 power conferred upon the judge by section 298, may be exercised by 
 him whenever in the progress of the proceedings he thinks it proper 
 to do so. It must be of course while the defendant is before him, 
 and while the proceedings are kept in life by proper adjournments, 
 and it seems to me that there is great propriety in the appointment 
 of the receiver in an early stage of the proceedings, if they are, or 
 are likely to be protracted. In this case they were continued 
 through several months. The order of the judge operates like the 
 filing of a creditor's bill to attach the equitable interests of the 
 judgment debtor, but it does not create any lien upon personal 
 property. Such lien will not be created till the order be made for 
 the appointment of a receiver. Until such order is made, other 
 creditors of the judgment debtor may levy upon any of his personal 
 property subject to execution, and acquire a valid lien thereon. 
 Van Alstine v. Cook, 24 N. Y. 496. The property of the judg- 
 ment debtor vests in the receiver from the time the order is made 
 directing such appointment. Porter y. Cook, 5 Seld. (N. Y.) 148. It 
 follows, therefore, tliat to give full effect to these proceedings, and to 
 give the creditor instituting them the full benefit thereof, he should 
 promptly procure the appointment of a receiver. This is essential 
 to perfect his lien. It can not be, therefore, that he must be com- 
 pelled to wait till a protracted examination of the judgment debtor 
 is finished, protracted perhaps, for the very purpose of defeating 
 the object of the proceedings by judgment, by allowing his assets 
 to be scattered and seized by other creditors, before the prosecuting 
 creditor could have the receiver appointed and it can not be that he 
 loses all right to discover from the judgment debtor after the ap- 
 pointment of such receiver. I can see no principle or reason upon 
 which such a claim can be founded, and it is in clear conflict with 
 the object and intent of this whole proceeding. 
 Relator remanded.^- 
 
 "In many instances where an ordinary execution is inadequate to obtain 
 satisfaction of the judgment debt, the creditor may resort to equity to obtain 
 discovery of assets or to set aside fraudulent transfers of property. In 
 some jurisdictions additional summary modes of reaching the assets of the 
 debtor are provided by statute, known as "supplementary proceedings" or 
 "proceedings supplemental to execution." The statutes differ materially in 
 the relief afforded, but the more comprehensive laws enable the holder of 
 an unsatisfied judgment to obtain: (i) An order compelling the debtor to 
 attend before a judge or referee and submit to an examination concerning 
 his property. (2) Upon proof that the debtor has property which he unjustly 
 refuses to apply to the satisfaction of the judgment or that there is danger
 
 7S4 EXECUTION 
 
 FELDEXIIEn.IEll -r. TRESSEL 
 
 Supreme Court of tiik Territory of Dakota, 1889 
 
 6 Dale. 2C5 
 
 Spexcer, J.: This is a bill filed by the plaintiff, as a jiidfrmcnt 
 creditor, for the purpose of having declared void and set aside a 
 conveyance of the defendant's lands, alleged to have been made 
 fraudulently, and praying that such lands may be subjected to the 
 judgment recovered by said plaintiff against the defendant, John J. 
 
 that he will leave the state or conceal himself, an order may be made for the 
 arrest of the debtor who may then be required to give security not to dis- 
 pose of his property pending the proceedings. (3) An order may be made 
 requiring any per.-on or corporation, having property of the debtor or being 
 indebted to him, to attend and be examined concerning the debt or propertJ^ 
 Further orders may be made to restrain any transfer or interference with 
 discovered property and subjecting or applying such property to the pay- 
 ment of the debt. (4) An order may be made appointing a receiver of the 
 property of the judgment debtor. New York Code Civ. Pro., §§ 2432-2471. 
 See also, California Code Civ. Pro., §§ 714-721; Iowa Code (1897), §§ 4072- 
 40Q0; Ohio Gen. Code (1910) §§ 11768-11781 Mass. Rev. Laws (1902), ch. 
 168, §§ 17-20; N. J. Comp. Stat. (1910) p. 2249; Pennsylvania Act of 
 1^- n, TOT 3, P L. 197; Orr's Case, 2 Abb. Pr. (l>r~YT 457'~U^) : 
 Catlm v. Doughty, 12 How. Pr. (N. Y.) 457 (1856) ; Ozccn v. Dupignac, 
 Q Abb. Pr. (N. Y.) 180, 17 How. Pr. (N. Y.) S12 (1859); Field v. 
 Sands, 21 N. Y. Super. Ct. 685 (1861) ; Pope v. Cole,^64 Barb. (N. Y.) 406 
 (1872) ; Carter v. Clarke, 30 N. Y. Super. Ct. 43 (1867) ; Lynch v. Johnson, 
 48 N. Y. 27 (1871) ; Clark v. Bergcnihal, 52 Wis. 103, 8 N. W. 865 (1881) ; 
 Munds V. Cassidey, 98 N. Car. 558, 4 S. E. 353, 355 (1887); Hcrrlich v. 
 Kanfmann, 99 Cal. 271, 33 Pac. 857, 2>7 Am. St. 50 (1893) ; Adlcr v. Tnrnhull, 
 57 ^'. J. L. 62, 30 Atl. 319 (1894) ; Bryan v. Grant, 87 Hun (N. Y.) 68, 33 
 N. Y. S. 957, 67 N. Y. St. 639 (1895) ; faneiiil Hall Nat. Bank v. Bussing, 
 147 N. Y. 6O5, 42 X. E. 345 (i89t) ; Billson v. Lindcrbcrg, 66 Minn. 66, 68 
 N. W. 771 (1896); Klcpsch V. Donald, 18 Wash. 150, 51 Pac. 352 (1897); 
 Stiefel V. Berlin, 28 App. Div. 103, 51 N. Y. S. 147 (1898) ; Consolidated 
 Agency Co. v. Tozvnslcy, 72 ]Misc. 155, 129 N. Y. S. 773 (1911) ; Stevens v. 
 Maus, 155 App. Div. 249, 139 N. Y. S. 1059 (1913). As to receivers see 
 Webb v. Overman, 6 Abb. Pr. (N. Y.) 92 (1867); De Camp v. Dempsey, 
 ID N. Y. Civ. Pro. 210 (1886) ; Habenicht v. Lissick, 78 Cal. 3SI, 20 Pac. 874, 
 5 L. R. A. 713, 12 Am. St. 63 (1889) ; Adler v. Turnhiill, 57 N. J. L. 62, 30 
 Atl. 319 (1894) ; Teats v. Bank of Hcrington, 58 Kans. 721, 51 Pac. 219 
 (1897) ; Globe Phosphate Co. v. Pinson, 52 S. Car. 185, 29 S. E. 549 (1897) ; 
 Wilkinson v. Market, 65 N. J. L. 518, 47 Atl. 488 (1900) ; Dease v. Reese, 39 
 Misc. 657, 80 X. Y. S. 590 (1903) ; Ryan v. Wagner, 143 App. Div. 176, 127 
 N. Y. S. 973 (iQii)- 
 
 Disobedience of orders made by the court in supplementary proceedings 
 is punished as contempt of court. Page v. Randall, 6 Cal. 32 (1856) ; Parker 
 v. Hunt, 15 Abb. Pr. (N. Y.) 410 n (1863) ; Ammidon v. Wolcott, 15 Abb. Pr. 
 (X. Y.) 314 (i860) ; Lathrop v. Clapp, 40 N. Y. 328, 100 Am. Dec. 493 (1869) ; 
 Shepard V. Kent Circuit Judge, 109 Mich. 606, 68 N. W. 221 (1896) ; In re 
 Knaup, 144 Mo. 653, 46 S. W. 151, 66 Am. St. 435 (1898); Feinberg v. 
 Kutcosky, 147 App. Div. 393, 132 N. Y. S. 9 (1911) ; Shorwits v. C amines, 
 1S2 App. Div. 758, 137 X. Y. S. 545 (1912) ; Goldreyer v. Foley, 139 N. Y. S. 
 190, 154 App. Div. 584 (1913); Schwartz v. Sill, 85 Misc. 55, 146 N. Y. S. 
 1068 (1914) ; People ex rel. Roache v. Hanbury, 162 App. Div. 227, I47 N- Y. 
 S. 851 (1914). For England, see Rules of the Supreme Court, Order XLH, 
 rule 2-', Order XLIII, rule 6; Order L, rule 15a.
 
 FELDENHEIMER V. TRESSEL 785 
 
 Tressel, previous to the filing of this bill, and that the same may 
 be sold in satisfaction of plaintiff's judgment. 
 
 To the complaint the defendants demurred on the ground that 
 the complaint did not state facts sufficient to constitute cause of 
 action, the particular ground of demurrer being that creditor's bills 
 ■will not lie in this territory, for the reason that the provisions of the 
 Code of Civil Procedure in regard to proceedings supplementary 
 to execution have superseded the remedy by creditor's bills, and 
 now furnish In this jurisdiction the exclusive remedy to judgment 
 creditors to subject property to the satisfaction of their debts J^ 
 
 What were the powers of the court of chancery in reference to 
 creditor's bills ^. 
 
 The court of chancery formerly had cognizance of bills filed 
 by judgment creditors, after they had exhausted their remedies at 
 law, to subject lands fraudulently conveyed to the payment of tlieir 
 judgments. Edgell v. Hayzvood, 3 Atk. 357; Edmeston v. Lyde, 1 
 Paige (N. Y.) 637; and by the filing of such a bill the creditor ac- 
 quired a lien upon lands which was superior to any subsequent con- 
 veyance. Such bills were sustainable under the ordinary jurisdiction 
 of the court. Its power to hear such cases and set aside fraudulent 
 conveyances which stood as obstructions to executions at law was 
 inherent in the court, and not dependent upon any statute. Beck v. 
 Burdett, i Paige (N. Y.) 305. 
 
 From its earliest history the court of chancery has exercised 
 the power of compelling the transfer of the title to real estate by 
 obliging parties holding the legal title to convey it, or by directing 
 it to be sold by somq officer of the court appointed for the purpose, 
 or by declaring the title by wdiich it was held fraudulent, and sub- 
 jecting it to sale under an execution at law. Moidd v. Williamson, 
 2 Cox Cli, 386; Edgell v. Haywood, 3 Atk. 357; Burroughs v. Elton, 
 II Ves. 33. These decisions have since been followed, both in Eng- 
 land and in this country, particularly upon bills by judgment cred- 
 itors to set aside fraudulent conveyances. Thus it was held in 
 Hendricks v. Robinson, 2 Johns, Ch. (N. Y.) 283, that one creditor 
 might maintain a bill on behalf of himself and other creditors, or on 
 behalf of himself alone, to have certain conveyances of his debtor 
 declared fraudulent and void ; and in Cuylcr v. Moreland, 6 Paige 
 (N. Y.) 273, that a bill will be sustained filed by a judgment cred- 
 itor for the double purpose of removing a fraudulent obstruction to 
 an execution at law and of reaching the debtor's equitable assets ; 
 and though a fraudulent assignor dies before judgment against him, 
 a creditor's bill will lie to set aside a fraudulent conveyance made by 
 him. Frazerv. Western, i Barb. Ch. (N. Y.) 220. In Wakeman v. 
 Grover, 4 Paige (N. Y.) 23, the bill of a judgment creditor to obtain 
 satisfaction out of his debtor's equitable assets was sustained, as 
 was also a bill filed by such a creditor for the enforcement of his 
 judgment out of property which the debtor had fraudulently placed 
 out of his reach. Weed v. Pierce, 9 Cow. (N. Y.) y22. 
 
 "The arguments of counsel and part of the opinion are omitted. 
 SO — Civ. Prog.
 
 ^86 EXr.CUTION 
 
 It is, therefore, settled beyond question that originally the court 
 of chancery, in the exercise of its equitable powers, had jurisdic- 
 tion of creditors' bills brought for the purpose of setting aside 
 fraudulent conveyances, or reaching equital)le assets which the 
 dcfcnilant had put in the hands of third parties; and the plain- 
 tiff in tlie suit at bar, having exhausted his remedy at law by the 
 return of his execution, as appears from his bill, was in situation 
 to ask the aid of equity to set aside the alleged fraudulent convey- 
 ance, if the facts should demonstrate that it was so, and to reach 
 the equitable assets, if any, which had been put out of his reach by 
 the defendant. 
 
 The Supreme and District courts of this territory have, under 
 tlie organic law, chancery, as well as common law, jurisdiction 
 (Organic Law, Comp. Laws, section 33) ; and hence this complaint 
 in its present form may be maintained unless some other remedy 
 equally effectual has been provided by law. It is claimed that^ such 
 remedy has been provided by the Code of Civil Procedure in its 
 provisions in regard to proceedings supplementary to execution, and 
 tliat this remedy is exclusive. \\'e are unable to assent to this 
 proposition for several reasons. The remedy afforded by proceed- 
 ings supplementary to execution is not as effective as tliat fur- 
 nished by creditors' bills as administered by courts of equity. They 
 are merely proceedings in the original action for the purpose of 
 enforcing the judgment already recovered. Dresser v. Van Pelt, 
 15 How. Pr. (N. Y.) 19; Cold v. Torrance, 19 How. Pr. 560. In 
 the latter case the court, in defining these proceedings, says that they 
 are in the nature of additional or equitable executions. It is not m 
 any sense a new suit. By these proceedings a summary mode is 
 instituted for ascertaining what, if any, property a judgment cred- 
 itor may have under his control or in his possession subject to exe- 
 cution, and if any persons are ov/ing him, and to what extent. 
 Third persons can not be made parties to the original suit, though 
 tliey be compelled to appear and be examined as to any property 
 under their control or in their custody belonging to the defendant, 
 or as to whether they owe him. But this is the extent to which the 
 inquiry can go in such proceedings. If property belonging to the 
 defendant is found upon such an examination in the hands of these 
 persons, it may be ordered turned over to apply on the judgment 
 debt; but if the right of the person having it under apparent title 
 comes in question, if he claims to be the ovv-ner of the property, the 
 question of title can not be summarily disposed of by the court or 
 iudge before whom the proceedings may be pending. Such ques- 
 tions must be adjudicated and determined by an action brought for 
 that purpose. It is thus made apparent that the remedy by pro- 
 ceedings supplementary to execution are much less efficacious, and 
 in many cases would not afford relief to the same extent as a bill 
 in equity, and this even though the proceeding should be prose- 
 cuted to a receivership and carried to its utmost extent under the 
 statute.
 
 FELDENHEIMER V. TRESSEL 787 
 
 In Field v. Sands, 8 Bosw. (N. Y.) 685, it was held that the com- 
 mencement of supplementary proceedings and the appointment of a 
 receiver therein did not create any lien upon assets previously as- 
 signed by the debtor ; that such assets could only be reached by a 
 creditor'^ suit. A similar decision was made in Conger v. Sands, 
 19 How. Pr. (N. Y.) 8. See, also, Gasper v. Bennett, 12 How. Pr. 
 (N. Y.) 307. It is doubtless true that in many jurisdictions adequate 
 remedies have been provided by law to accomplish some of the pur- 
 poses of creditors' suits — discovery of assets, debts owing by third 
 persons, and the like — and for these purposes proceedings supple- 
 mentary to execution may be considered a substitute. But for the 
 purpose of reaching equitable assets of the judgment debtor, or to 
 set aside fraudulent transfers of property, supplemental proceedings 
 provide an inadequate remedy; and, though in many respects they 
 may serve as a substitute for a creditor's bill, they are by no means 
 the exclusive remedy to which the creditor may resort. He may still 
 have his creditor's suit. Pope v. Cole, 64 Barb. (N. Y.) 406; Bank 
 V. White, 6 N. Y. 236. 
 
 The right of a judgment creditor to maintain an action in the 
 nature of a creditor's bill, notwithstanding the remedy provided by 
 proceedings supplementary to execution, has been frequently held. 
 Thus, in Catlin v. Doughty, 12 How. Pr. (N. Y.) 457, it was held 
 that the former action by judgment creditor's bill was still in force, 
 and might be resorted to by a judgment creditor to reach equitable 
 assets after the return of an unsatisfied execution. In Gere V- 
 Dibble, 17 How. Pr. (N. Y.) 31, it was held that a creditor's bill 
 would lie in favor of judgment creditors on their ovv^n account to set 
 aside a fraudulent conveyance made by the judgment debtor on his 
 real estate, even after the appointment of a receiver in proceedings 
 supplementary to execution, the judgment constituting the basis of 
 the action having been recovered before the receiver was appointed. 
 In Bennett v. McGuire, 58 Barb. (N. Y.) 625, it was held that a 
 judgment creditor, even after having commenced proceedings sup- 
 plementary to execution, had a right to abandon the same and main- 
 tain an action in his own name to set aside a mortgage executed by a 
 judgment debtor as being without consideration, and fraudulent. 
 The following cases will be found, also, to sustain this petition : 
 Bartlett v. Drew, 4 Lans. (N. Y.) 444; Phelps v. Piatt, 50 Barb. 
 (N. Y.) 430; Taft V. Wright, 47 How. Pr. (N. Y.) i ; Burt v. Hoet- 
 tinger, 28 Ind. 217; Parsons v. Meyburg, i Duv. (Ky.) 206; and 
 there are others of like import. We can not assume that the legisla- 
 ture intended to take from creditors any of the remedies that they 
 enjoyed tmder the court of chancery for the enforcement of tlieir 
 judgment, after having exhausted their remedy at law, and turn 
 them over to the often inadequate and imperfect remedy provided 
 by the statute in regard to proceedings supplementary to execution. 
 Upon. reason and authority the remedy by creditor's suit exists now 
 as it formerly did under the court of chancery. Under the codes 
 of procedure a suit in the nature of a creditor's bill may be main-
 
 -88 F.XF.CUTIOX 
 
 taincJ under the same rulos wliich formerly prevailed in courts of 
 chancery. The code has changed the form of the suit, but has not 
 aiTectcd the ris:hts of the parties, or impaired the powers of courts 
 havins: equity jurisdiction from administering proper relief in a case 
 showing a state of facts which formerly were sufficient to authorize 
 a court of chancery to act. Bar licit v. Drciv, 60 Barb. (N. Y.) 
 O48. aflirmed, 57 N. Y. 587. The case of Graham v. Raihvay Co., 
 10 Wis. 459, would seem to support the projiosition that the pro- 
 ceeding supplementary to execution provided by the statute of that 
 state superseded the remedy by creditors' bills, and was exclusive. 
 That case, however, has not been followed by the courts of that state. 
 The decision of the case in which the rule there laid down was 
 invoked was put upon other grounds, and the remedy by creditors' 
 bills has been restored long since in that jurisdiction by legislative 
 enactment. Seymour v. Briggs, 11 Wis. 196; Gates v. Boomer, Vj 
 Wis. 455. The cases cited by the respondent from the California 
 reports do not sustain his contention. In that state creditors' bills 
 have always been maintainable. Ba)zer v. Bartol, 6 Cal. 483 ; Mar- 
 shall V. Biishanan, 35 Cal. 264. Such is also the rule in Colorado. 
 Allen V. Tritch, 5 Colo. 222; Fraserv. Smelting Co., 5 Fed. Rep. 163. 
 And also in Kansas. Liides v. Hood] 29 Kans. 49. 
 
 The complaint in the case at bar contains all the allegations 
 necessary under the code, or which were formerly required by the 
 courts having equity jurisdiction in creditors' suits brought to set 
 aside fraudulent conveyances as obstructions to an execution at law, 
 and is sufficient. The demurrer, therefore, must be overruled, and 
 the pro forma judgment of the District Court reversed, with leave 
 to the defendants to answer within thirty days, on payment of costs 
 and disbursements. All the justices concurring. 
 
 SECTION 12. EXECUTION AGAINST THE PERSON 
 
 FORSYTHE v. WASHTENAW 
 
 Circuit Judge, 1914 
 
 180 Mich. 633 
 
 Brooke, J. : Relator prays for the issuance of a writ of manda- 
 mus against respondent requiring him to recall and quash a writ of 
 capias ad satisfaciendum. The antecedent facts are briefly as fol- 
 lows: One Delia Anthony brought suit against relator and another 
 in an action of trespass upon the case. The suit was commenced by a 
 summons, and the declaration charged relator with fraud. Under a 
 plea of the general issue, the parties went to trial, and a judgment 
 was rendered against relator on the 27th day of October, 191 3. On 
 the 24th day of November, 191 3, an execution was issued upon said 
 jud^ncnt, jmade returnable January 15, 1914. Under date of Janu-
 
 FORSYTHE V. WASHTENAW 789 
 
 ary lo, 1914, the sheriff returned the execution nulla bona. On 
 January 12, 1914, a writ of capias ad satisfaciendum was issued, 
 although the record is silent as to the application therefor. The re- 
 lator vv^as arrested upon said writ and on January 13, 1914, gave 
 a bond in the penal sum of $7,500 to the jail limits of the county 
 of Washtenaw. On January 19th relator made a motion for an 
 order recalling and quashing said writ of capias ad satis- 
 faciendum. ''* 
 
 It is the claim of relator that plaintiff, Delia Anthony, having 
 commenced her action by summons instead of by a capias ad re- 
 spondendum, as she might have done under section 9996, 3 Conip. 
 Laws, is now precluded from having recourse to a writ of capias 
 ad satisfaciendum, although she would have been entitled to the 
 latter writ had she used the more rigorous process as commence- 
 ment of suit. The precise question seems never to have been raised 
 in this court. 3 Comp. Laws, section 10301, provides: "Such execu- 
 tion may be either (i) Against the goods and chattels, lands and 
 tenements of the party against whom such judgment was recovered; 
 or (2) against the body of such party, in the cases authorized by 
 law." The statutes are silent as to the cases in which a body execu- 
 tion may issue in this State. It is therefore necessary to determine 
 the question from an examination of the precedents arising under 
 the common law. 
 
 In an early case. Fuller v. Bowker, 11 Alich. 204, Justice Christ- 
 iancy used the following language at page 210 : "We understand the 
 common-law rule to have been that a capias ad satisfaciendum 
 could be issued in tliose cases, and those [cases] only, in which the 
 suit might have been commenced by capias ad respondendum, or, 
 in other words, when the latter was the immediate process upon the 
 original writ. The only exception to this seems to have been when 
 the defendant was an attorney or officer of the court; in such case 
 he might be taken in execution, though sued by bill. 2 Arch. Pr. 276. 
 Originally the capias ad satisfaciendum lay at common law only in 
 trespass vi _et armis. But as statutes were subsequently passed, giv- 
 ing the capias ad respondendum as the mesne process in other cases, 
 the capias ad satisfaciendum was held to follow, as a common-law 
 incident. But in no case was the latter allowed without the former 
 unless directly authorized by statute, i Sellon's Pr. 513; Comyn's 
 Dig. Execution, ch. 9; Tomlin's Law Diet, title 'Capias': i Arch. 
 Pr. 276." ^5 
 
 '^Part of the opinion is omitted. 
 
 "The writ of capias ad satisfaciendum commands the sheriff to take 
 the body of the defendant, and him safely keep, so that he may have his 
 body in court, to satisfy the plaintiff the amount of his judgment. At 
 common law, the king when plaintiff could have execution against the de- 
 fendant's body, land and goods, but a subject could have execution against 
 the body of the defendant in trespass vi et armis only. To secure the ap- 
 pearance of defendants the writ of capias ad respondendum was given by 
 the statute of 52 Hen. Ill, ch. 23 (Marlebridge) and of 13 Edw. I, ch. 11 
 (Westminster II), in actions of account, by the statute of 25 Edw. Ill, ch. 17, 
 in debt and detinue, and by the statute of 19 Hen. VII, ch. 9, in actions on the 
 case. The capias ad satisfaciendum is not expressly given by statute but the
 
 ~90 EXECUTION 
 
 In I Scllon's Pr., p. 513, cite J by Judge Christiancy, it is said: 
 "A capias ad satisfaciendum, by the common law, lay only in tres- 
 pass vi ot armis, being a direct and wilful wrong, and wherein the 
 capias ad respondendum was the immediate process upon the orig- 
 inal writ. lUit several statutes having given the ])rocess of capias ad 
 res[H)ndcndum, as the mesne jirocess upon the original writ in other 
 personal actions, than those committed vi et armis, the capias ad 
 satisfaciendum has become an executory process in them also, it 
 being held as a rule that, where a capias lies in process before 
 judgment, it will lie in execution u]ion the judgment itself." In i 
 Burrill's Pr., p. 308, we find the following: "It may be considered 
 a general rule, that a capias ad satisfaciendum will lie in all cases 
 where a (bailable) capias ad respondendum might have been used 
 as the process to bring the defendant before the court." Citing* i 
 Arch. Pr. 303. In i Tomlin's Law Diet., at p. 287, after describing 
 the writ, tlie writer says : "Properly speaking, this writ can not be 
 sued out against any but such as were liable to be taken upon the 
 capias mentioned in the preceding article." Citing 3 Rep. 12; M. O. 
 767. See, also, 2 Tidd's Pr. (2d Am. ed.), p. 1025; Graham's New 
 
 courts have held that wherever a capias lies in process before jiidp;ment it 
 \\[\\ lie in execution upon the judgment itself. 3 Salk. 286; Y. B. 43 Edw. Ill 
 I ; Y. B. 49 Edw. Ill 2; Y. B. 2 Hen. IV 6; Y. B. 7 Hen. VI 45b; Co. Litt. 
 290b; Harbet's Case, 3 Coke 12 (15S4) ; Cassidy v. Stewart, 9 D. P. C. 366, 
 5 Jur. 25, 2 Scott (N. R.) 432 (1841) ; Kintzell v. Olsen (N. J.), yz Atl. 962 
 
 (^909). 
 
 The evils incident to imprisonment for debt have led, both in England 
 and the United States, to the passage of statutes that have greatly diminished 
 the number of cases in which the defendant can be arrested and imprisoned 
 in civil actions to enforce paj-ment of money demands. 
 
 In England the Act of 32 and 33 Vict., ch. 62 (Debtor's Act of 1869), 
 provides that no person shall be arrested or imprisoned for making default in 
 the payment of a sum of money except defaults in the payment of (i) 
 penalties; (2) sums recovered summarilj'- before a justice of the peace; 
 (3) sums ordered to be paid by trustees or fiduciaries; (4) costs ordered to 
 be paid by a solicitor for misconduct; (5) income ordered to be paid by a 
 bankruptcy court; (6) sums ordered to be paid in instalments by the court. 
 In re Edgcome, L. R. (1902) 2 K. B. 403. Rules of Supreme Court, Order 
 XLII, rule 3. But no person may be imprisoned in any excepted case for 
 more than one year. Cliurcli's Trustee V. Hibbard, L. R. (1902) 2 Ch. Div. 
 784. Subject to prescribed rules, the court may commit to prison for a term 
 not exceeding six weeks, or until payment of the sum due, any person who 
 makes default in the payment of a debt or instalment of a debt due from 
 him in pursuance of any order or judgment of a competent court. But such 
 jurisdiction shall only be exercised where ii is proved to the satisfaction 
 of the court that the person making default either has or has had since the 
 date of the order or judgment the means to pay the sum in respect of which 
 he has made default, and has refused or neglected to pay the same. Esdailc 
 v. Visser, L. R. (1880) 13 Ch. Div. 421, 41 L. T. 745, 28 W. R. 281; In re 
 Wray, L. R. (1887) 36 Ch. Div. 138 (1S87); Preston v. Etherington, L. R. 
 (1887) 37 Ch. Div. 104; Harris v. Slater, L. R. (1888) 21 Q. B. Div. 359, 
 57 L. J. Q. B. 539, 27 W. R. 56; Stonor v. Fo-wle, L. R. (1887) 13 App. Cas. 20. 
 The state statutes restricting execution against the person of the defendant 
 to specified causes of action vary greatly in their terms. Generally, such pro- 
 ceedings are allowed in actions of tort or where the defendant has been 
 guiltv of fraud or professional misconduct. See Freeman on Executions 
 (3d ed.), § 451; U. S. Comp. Stat. (1913), § 1636; N. Y. Code Civ. Proc. §§ 
 4S7, 549, 550; X. J. Practice Act of IQ03, § iSo ; Mass. Rev. L. (1902), ch. 168; 
 Pa. Act of July 12, 1842. P. L. 339, § i, P. & L. Dig. (2d ed.) 5795.
 
 FORSYTHE V. WASHTENAW 79I 
 
 York Pr., p. 410. In 4 Comyn's Digest, at page 228, we find the 
 f olloTving : '"'So execution may be by capias ad satisfaciendum 
 against the body of the defendant in all cases where a capias ad 
 respondendum lies in process." 
 
 Our Constitution, article 2, section 20, provides: "No person 
 shall be imprisoned for debt arising out of or founded on a con- 
 tract, express or implied, except in cases of fraud or breach of 
 trust, or of moneys collected by public officers or in any professional 
 employment. No person shall be imprisoned for a military fine in 
 time of peace." 
 
 It Is obvious that the plaintiff In the principal case might have 
 proceeded against relator under the Constitution as well as under the 
 statute cited, supra, by causing to issue a writ of capias ad respond- 
 endum as commencement of suit. .Should she now be deprived of her 
 right to the writ of capias ad satisfaciendum because of having 
 chosen the less drastic writ for her mesne process? We are of the 
 opinion that she should not. 
 
 In the case of Hunt v. Burdlck, 42 Vt. 610, It is said : "There is 
 nothing in our statutes or practice that requires the establishment of 
 a rule that the plaintiff in an action of tort shall be deprived of the 
 right, which the law gives him, of taking an execution against the 
 body of the judgment debtor, because he omits to Issue his original 
 writ against the body. What operates so manifestly as matter of 
 ease and favor to the defendant, ought not to be the ground of for- 
 feiture of the rights of the plaintiff." 
 
 The case of LapJiam v. Oakland Circuit Judge, 170 Mich. 564, 
 cited on behalf of respondent as autliority, is not controlling for the 
 reason that in that case the question considered was only whether 
 the body execution had been seasonably Issued. The basic right of 
 the plaintiff to the writ was not cjuestioned. 
 
 The writ Is denled.'^^ 
 
 _ "Where the right to aiTcst is determined by the nature of the cause of 
 action, an execution against the person may issue although there has been 
 no previous arrest. Eames V. Stevens, 26 N. H. 117 (1852) ; State v. Foote, 
 83 N. Car. 102 (1S80) ; Haskell v. Jewell, 59 Vt. 91, 7 Atl. 545 (18S6) ; Roeber 
 V. Dawson, 22 Abb. N. C. (N. Y.) 73, 3 N. Y. S. 122, 21 N. Y. St. 160 (1888) ; 
 Carrigan v. Washburn, 18 N. Y. Civ. Pro. yj, 7 N. Y. S. 262, 25 N. Y. St. 
 931 (1889) : K alb his v. Rimdell. \?-,a Pa. 102 i q Atl. 492 (1890) ; Sawyer v. 
 Nelson, 44 IIT App. 184 (1801') : Dnngan v. Kea d. 167 Pa. St .^^93. 31 Atl. 639 
 (1895) ; Sherman V. Grinnell, isgT^TYT^, 53 N. E. 674O899) ; Martin v. 
 Hutto, 82 S. Car. 432, 64 S. E. 416 (1908) ; Kintsel v. Olsen (N. J.), 73 Atl. 
 962 (1909); Michael v. Leach, 166 N. Car. 223, 81 S. E. 760 (1914). But 
 where the grounds of arrest are extrinsic to the cause of action, an execution 
 against the person can not issue where no order of a-rrest has been previously- 
 obtained. Smith v. Knapp, 30 N. Y. 581 (1864) ; Ehvood v. Gardner, 45 N. Y". 
 349, 10 Abb. Prac. (N. S.) 238 (1871) ; Stern v. Moss, 67 How. Pr. (N. Y.) 
 199. 6 Civ. Pro. R. 184 (1884); Chapin v Foster, loi N. Y. i, 3 N. E. 786 
 (188.S) ; Griffith V. Hubbard, 9 S. Dak. 15, 67 N. W. 850 (1896) ; Fenton v. 
 Duckworth, 131 App. Div. 291, 115 N. Y. S. 686 (1909).
 
 79-2 KXF.CUTION 
 
 OSMAN r. CROWLEY 
 
 Supreme Court of Nf,\v York, Arri.i.i.ATE Division, 1905 
 
 loi Ai^t- Div. (.V. V.) 597 
 
 IxcRAiiAM, J.: The iilainiilT, an infant, eight years of age, 
 brought til is action to recover for the injuries sustained by being run 
 over by a hansom cab, the proj^erty of tlie defendant. He alleged in 
 tlie complaint that "said defendant and servant were negligent, 
 reckless and careless and unskillful in the management and opera- 
 tion of said hansom vehicle and the management and control of said 
 horse or horses and in the manner of driving the same and in conse- 
 quence thereof and without fault on the jiart of the plaintiff he was 
 knocked violently to the ground by said horse and vehicle and run 
 o\er" ; that "solely by reason of the defendant's negligence as afore- 
 said plaintiff was run over," and that by reason thereof the plaintiff 
 sustained damage. An answer was interposed which was substan- 
 tially a denial of the allegations of the complaint. The action was 
 tried and a verdict rendered for the plaintiff for the sum of $3,000, 
 upon which judgment was entered. I^xecution against the property 
 of the defendant having been returned unsatisfied, an execution 
 against the person was issued, whereupon he moved to set aside this 
 execution on the ground that the same "is irregular and void for the 
 reason that no order of arrest was or could have been issued in this 
 action against the defendant." This motion was denied and the de- 
 fendant appeals. 
 
 The right to issue an execution depends upon the Code of Civil 
 Procedure. Section 1487 provides tliat an execution against the 
 person of the judgment debtor may be issued thereupon (Subd. i) 
 where the plaintiff's right to arrest the defendant depends upon 
 the nature of the action, and (Subd. 2) in any other case where an 
 order of arrest has been granted and executed in the action. Sec- 
 tion 549 of the Code of Civil Procedure provides that tlie defendant 
 may be arrested in an action brought to recover damages for a 
 personal injury. Section 3343 provides that "In construing this act 
 . . . 9. A 'personal injury' includes libel, slander, criminal con- 
 versation, seduction and malicious prosecution ; also an assault, 
 battery, false imprisonment, or other actionable injury to the per- 
 son either of the plaintiff or of another." Thus in an action to 
 recover damages for actionable injury to the person of tlie plaintiff, 
 the defendant may be arrested, and a judgment in such an action 
 may be enforced by execution against the person, as the plaintift''s 
 right to arrest the defendant depends upon the nature of the action. 
 This construction was given to these provisions of the Code of 
 Civil Procedure by the General Term of the New York Superior 
 Court in Rilterman v. Ropes, 52 N. Y. Super. Ct. 237. 
 
 The defendant claims that the right to arrest in an action to 
 recover for personal injuries depends, not upon the nature of the
 
 OSMAN V. CROWLEY 793 
 
 action, but upon proof that the defendant was personally negligent, 
 as distinguished from a liability created by the negligence of his 
 servant, a distinction which I can not find in the provisions of the 
 Code of Civil Procedure. There are two cases which sustain the 
 defendant's contention. The first is the case of Lasche v. Dearing, 
 23 Misc. (N. Y.) 722, a decision of the Special Term of the Su- 
 preme Court. The second is Davids v. Brooklyn Heights R. R. Co., 
 45 Misc. 208, 92 N. Y. S. 220, a decision of the County Court of 
 Kings County. In Lasche v. Dearing the court construes the words 
 "other actionable injury to the person" in subdivision 9 of section 
 3343 of the Code of Civil Procedure as applying only to cases of 
 the same character as those before specifically mentioned in the sub- 
 division of the sections ; thus restricting the definition of the words 
 "personal injury" to a case where the cause of action is based upon 
 "affirmative and active wrong with more or less of turpitude, ac- 
 cording to the character of the wrong." But this limitation is not 
 specified in the section which defines words that are used in the Code 
 of Civil Procedure ; and if this construction could be sustained there 
 would be no action for personal injuries regulated by the Code of 
 Civil Procedure, unless the defendant personally participated in the 
 act which caused the injury. Section 549 of the Code of Civil Pro- 
 cedure gives the plaintiff in an action for a "personal injury" a right 
 to arrest the defendant. Subdivision 9 of section 3343 of the Code of 
 Civil Procedure defines the words "personal injury" as used in said 
 code. This is not of a penal nature, but is a general provision applica- 
 ble to the whole Code of Civil Procedure, simply defining the words 
 "personal injury" when there used and includes any action brought 
 to recover for injury to the person of an individual. The case of 
 Davids v. Brooklyn Heights R. R. Co., 45 Misc. 208, 92 N. Y. S. 220, 
 is based upon an alleged distinction, which the defendant here seeks 
 to sustain, between an action for personal injury based upon the per- 
 sonal act of the defendant and that based upon the act of his servant, 
 a distinction which is not justified by any provision of the Code of 
 Civil Procedure. It is the nature of the cause of action which has re- 
 sulted in the judgment sought to be enforced that controls. That 
 cause of action is for a "personal injury," whether the injury to 
 the person is caused by the personal act of the defendant or by the 
 act of his servant for which he is responsible. I think, therefore, 
 that the execution was properly issued and that the order appealed 
 from should be affirmed, with ten dollars costs and disbursements. 
 Van Brunt, P. J., O'Brien and Hatch, JJ., concurred; Patter- 
 son, J., concurred in result.''^ 
 
 "Accord: Rittcrman v. Ropes, 52 N. Y. Super. Ct. 236 (1885); Rom::_^ 
 herger v. Henry, 167 Pa. St. 314 , 31 Atl. 634 (1895) ; Gallagher v. Dolan, 27 
 Misc. 122, 57 N. Y. S. 334, 6 N. Y. Ann. Cas. 412 (1899) ; People ex rel. Har- 
 ris V. Gill, 85 App. Div. 192, 83 N. Y. S. 135 (1903), Affd. 176 N. Y. 606, 68 
 N. E. 1 122. See also Dclamatcr v. Russell, 4 How. Pr. (N. Y.) 234, 2 Code 
 Rep. 147 (1850) ; Judd v. Ballard, 66 Vt. 668, 30 All. 96 (1S94) ; In re Smyser, 
 182 111. App. 208 (1913). And compare Ex parte Prader, 6 Cal. 239 (1856); 
 Wagner v. Lathers, 26 Wis. 436 (1870) ; Cohen v. Fox, 26 Colo. App. 55, 141 
 Pac. 504 (1914).
 
 794 EXECUTION 
 
 IMILLER r. TARNELL 
 
 Court of CmrMON I'i.kas, 1S15 
 
 2 Marsh. 78'* 
 
 The plaintliY in this aclion liad sued out a writ of fieri facias 
 on the tliird of July last, directed to the sheriff of Cornwall, to levy 
 £184 IS. 3d., and returnable on the sixth of November; by virtue 
 of which the sheriff, on the thirteenth of July, took possession of a 
 mine, together with the implements for working it, belonging to 
 the defendant, Elliot, and kept possession of them till the twenty- 
 ninth of July, when the plaintiff finding that the property was not 
 sutlicient to satisfy the debt, the execution was withdrawn. On the 
 fourteenth of August, the plaintiff issued a capias ad satisfaciendum 
 directed to the sheriff" of Middlesex, under which Elliot was taken 
 in execution on the seventeenth of August. 
 
 Mr. Serjt. Lens, on a former day in this term, obtained a rule 
 to show cause why the writ of capias ad satisfaciendum should 
 not be set aside for irregularity, and the defendant, Elliot, be dis- 
 charged of custody on the ground that the plaintiff was not entillcd 
 to sue out the second writ till the first had been returned. Having 
 once executed the former writ, he was not to assume that it was 
 imj)roductive; he should have returned it to the court and showed 
 that it was so ; and then he might have adopted the higher remedy, 
 for so much of the debt as remained unsatisfied by the first writ. 
 He cited Coppendale v. Dehonaire,'^^ where the court set aside a 
 testatum fieri facias, which had been sued out after the execution, 
 but before the return of the fieri facias. 
 
 Mr. Serjt. Best now showed cause against the rule, and con- 
 tended that the taking possession of goods, and giving them up 
 again, was no levy ; it was only an attempt to levy ; the writ, there- 
 fore, had not been executed, and consequently there was no neces- 
 sity for returning it. As to the case from Barnes, he admitted that 
 a testatum fieri facias could not be sued out before the fieri facias 
 was returned, because it was a continuance of the same process, 
 and whatever might be done under the testatum might also be done 
 under the fieri facias. The capias ad satisfaciendum, however, was 
 no continuance of the former execution. 
 
 Lord Chief Justice Gibbs: There is no doubt that the plain- 
 tiff, having sued out a fieri facias, may, if he please, omit to exe- 
 cute it, and take out a capias ad satisfaciendum, before the former 
 writ is returnable; and it is equally clear that if he completely 
 execute the fieri facias, he can not sue out a capias, until he has re- 
 turned the first writ. The present is a middle case; for he has 
 taken out a fieri facias, under which the sheriff did actually seize 
 the goods, so that, as far as concerns the defendant, he has been 
 
 "S. C. 6 Taunt. 370. 
 
 'Barnes' Notes 213 (circa I757)-
 
 MILLER V. PARNELL 795 
 
 deprived, for a time, of property to a certain amotrtit; and the 
 question is, whether after the goods had been seized, the plaintiff 
 could change his mind, desert his remedy against the goods, and 
 take out execution against the person. If he could do so, it would 
 be a great hardship on the defendant. The law is, that if a man 
 seize the goods of his debtor, he can not take his body also, except 
 for the residue of the debt; and there must be something to bind 
 him as to that residue, viz., the return of the sheriff to the first 
 writ. But it would be great injustice to suffer the plaintiff to seize 
 the goods, and keep possession of them, thereby putting the defend- 
 ant to great inconvenience, and then to alter his mind, and take the 
 defendant himself in execution. On the other hand, it is no hard- 
 ship for the plaintiff to elect on w4iich writ he will take out execu- 
 tion. We will not prevent him from suing out both writs at^ the 
 same time, but when once he has made his election, and begun to 
 execute one of them, I am of opinion that he ought to be bound by 
 such inceptive execution. ^° 
 
 The rest of the court concurred. 
 
 Rule absolute, the defendant engaging not to bring any action. 
 
 ^°At common law a fieri facias and a capias ad satisfaciendum may issue 
 at the same time against the goods and person of the defendant and the plain- 
 tiff may use either the one or other as he thinks advisable. Prijurose V. 
 Gibson, 2 D. & R. 193 (1822) ; Steele v. Murray, 1 Blacki. (Ind.) 179 (1822) ; 
 Cary v. Gregg, 3 Stew. (Ala.) 433 (1831) ; Davies v. Scott, 2 Miles (Pa.) 52 
 (1836) ; Knight v. Coleby, 5 M. & W. 274 (1839) ; Leavison v. Rosenthal, 5 Ky. 
 L. 132 (1883). But he can not have a double satisfaction. If a capias ad 
 satisfaciendum is sued out and the debtor taken, the plaintiff can not have a 
 fieri facias or elegit unless the defendant die in execution, escape or be 
 rescued. Tidd's Pr. (9th ed.) 996; Stamper v. Hodson, 8 Mod. 302 (1724) ; 
 U. S. V. Stansbiiry, i Pet. (U. S.) 573 (1828) ; David v. Blundcll, 40 N. J. L. 
 372 (1878). And if the plaintiff execute his fieri facias he can not take the 
 defendant on a capias ad satisfaciendum until the fieri facias is returned show- 
 ing that the debt was not satisfied thereby. Wilson v. Kingston, 2 Chitty. 
 203 (1816); Biirk V. M'Fall 2 Browne ( Pa.) 143 (1811) ; Edmond v. Ross, 
 9 Price 5 (1821) ; Cutler v. Cotvers, 3 (JowTlT^. Y.) 30 (1824) ; Champenois v. 
 White, I Wend. (N. Y.) 92 (1828) ; Miller v. Bagwell, 3 McCord (S. Car.) 
 429 (1826), but contra Mazyck v. Coil, 2 Bailey (S. Car.) loi (1831); 
 Turner v. Walker, 3 Gill & Johns. (Md.) 2)77< ~~ Am. Dec. 329 (1831); 
 Lawes v. Codrington, i Dowl. P. C. 30 (1831) ; Hodgkinson v. Whalley, 2 
 Cromp. & Jerv. 86 (1831) ; Chapman v. Bozdby, 8 M. & W. 249, 10 L. J. Ex. 
 299 (1841), distinguishing Dicas v. Warne, 10 Bing. 341 (1833) ; Andrezvs v. 
 Saunderson, i H. & N. 725 (1857). 
 
 In a number of jurisdictions an execution can not issue against the 
 person where the defendant has property sufficient to satisfy the debt, 
 Bulkley V. Finch, 2>7 Conn. 71 (1870) ; Hecker v. J arret. 3 Binn (Pa .) 404 
 (1811); Bank of Ppnn<:yh! nnin v. J.atshaw. q Serg. & R. (Pa.) .9 (1822): 
 Berry v. Hamill, 12 Serg. ik. R. (Pa.) 210 (1824); or unless an execution 
 against his property has been returned unsatisfied. McDonald v. V/ilkie, 13 
 III. 22, 54 Am. Rep. 423 (1851) ; Craig v. Adair, 22 Ga. 373 (1857) ; In re 
 Mo-wry, 12 Wis. 52 (i860) ; Noe v. Christie, 15 Abb. Pr. (N. S.) (N. Y.) 346 
 (1874) ; Chaffee v. Handy, 36 La. Ann. 22 (1884) ; Baker v. State, 109 Ind. 
 47. 9 N. E. 711 (1886) ; Bergman v. Noble, 45 Hun. (N. Y.) 133, 19 Abb. N. 
 Cas. 62, 12 CivJ^ro. R. 256, 10 N. Y. St. 27 (1887) ; Fluntington v. Metsger, 158 
 111. 272, 41 N. t. 881 (1895) ; Carroll v. Montgomery, 128 N. Car. 278, 38 S. E. 
 874 (1901) ; Fisher v. Young, 41 Misc. 552, 85 N. Y. S. 115 (1903). But this
 
 796 I.XKCI'TION 
 
 TIIOMrSON'S CASE 
 
 Supreme Judicial Court of INIassaciiusetts, 1877 
 122 Mass. 428 
 
 Habeas corpus. At the hearing before Colt, J., it appeared 
 that the petitioner, a resident of Charlestown, in the state of New 
 Hampshire, was arrested on ]\Iarch 20, 1877, and was now held, 
 by a deputy of the sheriff of Suffolk, upon an execution issued upon 
 a judgement of this court against him, in favor of a citizen of the 
 commonwealth, while he was in attendance as a witness in his own 
 behalf before a joint committee of the legislature, having peti- 
 tioned for tlie allowance of a claim made by him against the com- 
 monwealth ; that his claim had been presented to the committee, 
 and was under discussion on that day while he was present; that 
 its further consideration had been adjourned to March 22, 1877; 
 and that as he was leaving the state house, and after he had got 
 into the street, he was arrested on the execution. It also appeared 
 that the petitioner had not been summoned as a witness, but the 
 judge found that he was in attendance in good faith solely for 
 the purpose of presenting and proving his claim, and with the in- 
 tention of returning home without imnecessary delay. 
 
 The petitioner contended that he was exempt from arrest and 
 was entitled to his discharge. The judge admitted the petitioner 
 to bail, and reserved the case for the consideration of the full court.^^ 
 
 J. A. Loring and C. F. Choate, for the petitioner. 
 
 A. A. Ranney and I. R. Clark, contra. 
 
 Gray, C. J. : Parties and witnesses, attending in good faith any 
 legal tribunal, whether a court of record or not, having power to 
 pass upon the rights of the persons attending, are privileged from 
 arrest on civil process during their attendance, and for a reasonable 
 time in going and returning, whether they are residents of this 
 state or come from abroad, whether they attend on summons or 
 voluntarily, and whether they have or have not obtained a writ of 
 protection. Walpole v. Alexander, 3 Doug. 45 ; Meekins v. Smith, 
 I H. Bl. 636; Arding v. Flower, 8 T. R. 534; Spence v. Stuart, 3 
 
 prohibition is for the debtor's benefit and may be waived by him. A^. Y. 
 Guaranty Co. v. Rogers, 71 N. Y. 377 (1877). 
 
 In Massachusetts there is "one form of execution in ordinary personal 
 actions, which is framed in the alternative and leaves to the ofTicer or to the 
 creditor under whose direction he acts, a choice of methods for the service 
 of it. This writ of execution commands the officer to levy the goods, chattels, 
 lands and tenements of the debtor, and for want thereof upon his body. 
 The creditor can not proceed under the execution against the property and 
 against the body of the debtor at the same time." Per Knowlton, J., in Hoar 
 V. Tildcn, 178 Mass. 157, 59 N. E. 641 (1901). See also, Lyman v. Lyman, 
 II Mass. 317 (1814) ; Davis v. Richmond, 14 Mass. 473 (1768) ; Twining V. 
 Foot, 59 Mass. (5 Cush.) 512 (1850) ; Dooley v. Cotton, 3 Gray (Mass.) 496 
 (1855) ; Plympton's Case, 196 Mass. 571, 82 N. E. 715 (1907). 
 
 "Part of the opinion of the court is omitted.
 
 THOMPSON S CASE 797 
 
 East 89; Ex parte Byne, i Ves. & E. 316; Persse v. Persse, 5 H. L. 
 Cas. 671; M'Neil's Case, 6 ]\Iass. 245; IVood v. Ncale, 5 Gray 
 (Mass.) 538; May v. Shumzuay, 16 Gray (Mass.) 86. 
 Petitioner discharged from custody.^- 
 
 "Accord : Y. B. 4 Edw. IV 21 ; Y. B. 9 Hen. VI 7 ; Y. B. 27 Hen. VIII 20; 
 Anonymous, Latch 198; Clarke v. Molyncnx, i Lev. 159 (1664) ; Lightfoot v. 
 Cameron, 2 \Vm. B!. 11 13 (1776) ; Walpole v. Alexander, 3 Doug. 45 (1782) ; 
 Meekins v. 5'mi//^ i H. Bl. 636 (1791) ; Walker v. H'e&i, 3 Anst. 941 (i797) ; 
 Arding v. Flower, 8 T. R. 534 (1800) ; Ex parte King, 7 Ves. Jr. 312 (1802) ; 
 Spence v. Stuart, 3 East 89 (1802); Solomon v. Underhill, i Camp. 229 
 (1808) ; Childcrston v. Barrett, II East 439 (1809) ; Li^^/ Case, 2 Ves. & Bea. 
 374 (1814); Rimmer v. Green, I M. & S. 638 (1813) ; Willingham v. l/cf- 
 i"/2eiy.y, 6 Taunt. 3s6 (i8is) ; Randall v. Gurney, i Chitty 679 (1819) ; Pi7/ 
 V. Coombs, 5 B. & Ad. 1078 (1834) ; J^t'&& v. Taylor, i D. & L. 676 (1843) ; 
 Persse v. Persse, S H. L. Cas. 671 (1856); Montague v. Harrison, 3 C. B., 
 N. S. 292 (1857) ; Ex parte Cohbett, 7 El. & B. 955 (1857) ; Harris v. Gran- 
 tham, I Coxe (N. J. L.) 142 (1792) ; Commonwealth v. Ronald, 4 Call. (Va.) 
 97 (1786) ; Ex parte Hurst, 4 Dall. (U. S.) 387, i L. ed. 878, i Wash. (C. C.) 
 186, Fed. Cas. No. 6924 (1804) ; Norris v. Beach, 2 Johns. (N. Y.) 294 
 (1807) ; Bours v. Tuckcrman, 7 Johns. (N. Y.) 538 (1811) ; Ex parte McNeil, 
 6 Mass. 245 (1810) ; Unite d States v. Ed me, Q Serg. &_R. (Pa.)_i47 (1822) ; 
 Sanford v. Chase, 3 Cow. (N. Y.) 381 (i824)T7n reUickenson, 3 Harr. 
 (Del.) 517 (1842) ; Vincent \. Watson, l Rich. L. (S. Car.) 194 (1845) ; Seavcr 
 V. Robinson, 3 Duer. (10 N. Y. Super. Ct.) 622 (1854) ; Wood v. Neale, 71 
 Mass. (5 Gray) 538 (1855) ; Henegar v. Spongier, 29 Ga. 217 (1859) ; May v. 
 Shumway, 82 Mass. (16 Gray) 86, yj Am. Dec. 401 (1S60) ; Merrill v. George, 
 23 How Pr. R. (N. Y.) 331 (1862) ; Huddeso n v. Pris e r. o Ph ila. (Pa.) 6; 
 (1872) semble; Brett v. Brown, 13 Abb. Pr. (N. S.) (N. Y.) 295 (1872); 
 Ballinger V. Elliott, 72 N. Car. 596 (1875) ; Person v. Gn>r, 66 N. Y. 124, 23 
 Am. Rep. 35 (1876); Ralstonjv. Tobin. Q Pa. Dist. R. 2^4 (iQoo) : Ginn v. 
 Alney, 212 Mass. 486, 99 JM."Er276 (1912). Contra as to a capias ad satisfacien- 
 dum. Starret's Case, i Dall. (Pa.) 356 (1788); Ha nmim y. Askew, i Yeat ^es 
 ( Pa.) 25 (1791). In some cases it is held that a witness whose attendance is 
 voluntary is not privileged unless he is a nonresident. Hardenbrook's Case, 8 
 Abb. Pr. (N. Y.) 416 (1859) ; Dunganv. Miller, 37 N.J. L. 182 (1874; Jones v. 
 Knauss, 31 N. J. Eq. 211 (1879). By the weight of authority the defendant 
 in a criminal case is not privileged from arrest on civil process. Anonymous, 
 I Dowl. P. C. 157 (1832) ; Goodman v. London, 2 Dowl. P. C. 504, i Ad. & El. 
 378 (1834); Williams v. Bacon, 10 Wend. (N. Y.) 636 (1834); Jacobs v. 
 Jacobs, 3 Dowl. P. C. 675 (1835) ; Cojnmonwealth v. Z^onu'/^ 4 Clark (Pa.) 
 330 (1847) ; Hare v. Hyde, 16 Q. B. 394 (18517; Scott v. Curtis, 27 Vt. 762 
 (1855) ; Moore v. Green, 73 N. Car. 394, 21 Am. Rep. 470 (1875) ; Lucas v. 
 Albee, i Denio (N. Y.) 666 (1845) ; Wood^v. Boyle, 177 Pa. St._62o, 35 Atl. 
 853, 55 Am St. 747 (1896) ; Rogers v. 1< gers^^J^SJ^ia .^03, 76 S. E. 48 (1912) ; 
 Ex parte Henderson, 27 N. Dak. 155, 145 N. W. 574 (1914). Contra: Bours 
 v. Tuckerman, 7 Johns. (N. Y.) 538 (1811) ; Callans v. Sherry, Ale. & N. 125 
 (1832) ; Rex V. McLoughlin, Ale. & N. 130 (1832) ; Rex v. Wigley, 7 C. & P. 
 4 (1835) ; Gilpin v. Cohen, L. R. 4 Exch. 131 (1869) ; Moletor v. Sinned, 76 
 Wis. 308, 44 N. W. 1099, 7 L. R. A. 817, 20 Am. St. 71 (1890). And it is 
 agreed that where the criminal proceeding is a mere contrivance by the 
 plaintiff to get the defendant into custody in the civil suit he will be dis- 
 charged. Wells v. Gurney, 8 B. & C. 769 (1828) ; Addicksv. Bush, I Phi la. 
 19, 7 Leg. Int. (Pa.) 7 (1850); Snclling v. Watrous, 2 Faige (iN. Y.) 314 
 (1830) semble; Benninghoff v. Oszvell, 37 How. Pr. (N. Y.) 235 (1868). 
 
 The privilege is also allowed to persons while engaged in the perform- 
 ance of some public duty as a member of Parliament or of Congress, Holiday 
 v. Pitt, 2 Str. 985 (1733) ; Coxp\._M 'Clenachan, 3 Dall. (Pa.). 478, i L. ed. 687 
 (1798); foreign consul, Dufqnt v. Pichon, 4 DalL C£a4- 321, I L. ed. 851 
 (1805); soldier, People Tx reTUaston v. Campbell, 40 N. Y. 133 (1869); 
 Squire's Case, 12 Abb. Pr. (N. Y.) 38 (1861).
 
 ,, o 
 
 5S EXECUTION 
 
 HORNER V. BATTYN 
 
 In the King's Bench, 173S 
 BuUcr's Nisi Priits 62 
 
 Note: That bare Avords will not make an arrest, but if the 
 bailiff touch the person, it is an arrest and the retreat a rescous.^^ 
 On a motion for an attachment against three persons for a rescous 
 of a person taken in execution, it was objected that there had not 
 been a legal arrest, as the bailiff had never touched the defendant. 
 
 Per curiam. This is a good arrest; and if the bailiff who has a 
 process against one, says to him when he is on horseback, or in a 
 coach, "You are my prisoner, I have a writ against you," upon which 
 he submits, turns back or goes with him, though the bailiff never 
 touched him, yet it is an arrest, because he submitted to the process ; 
 but if instead of going with the bailiff, he had gone or fled from 
 him, it could be no arrest unless the bailiff had laid hold of him.^* 
 
 ^Geiincr v. Sparks, I Salk. 79, 6 Mod. 174 (1704). 
 
 "An officer effects an arrest of a person whom he has authority to 
 arrest, by laving his hand on him for the purpose of arresting him, though 
 he mav not succeed in stopping and holding him." Per Metcalf, J., in Whit- 
 head V. Kcycs, 85 Mass. 495 (1862) ; Williams & Jones, Temp. Hardwicke, 
 Lee 298 (1735) ; Sheriff of Hampshire v. Godfrey, 7 Mod. 288 (1738) ; Berry 
 V. Adamson, 6 B. & C. 528 (1827) ; 9 D. & R. 558, 2 Car. & P. 503, 5 L- J- 
 (O. S.) K. B. 215; George v. Radfprd, 3 Car. & P. 464 (1828) ; Baldwin v. 
 Murphy, 82 111. 485 (1876); Hawkins v. Commonzvealth, 14 B. Mon. (Ky.) 
 395, 61 Am. Dec. I47n (1854); Sandon v. Jerzis, El. B. & El. 935 (1859). 
 But an arrest \vill be valid without physical contact, if the defendant submits 
 and goes with the officer. Gold v. Bissell, i Wend. (N. Y.) 210, 19 Am. Dec. 
 480 (1828) ; Wood V. Lane, 6 Car. & P. 774 (1834) ; Lawson v. Buzines, 3 
 Harr. (Del.) 416 (1842); Grainger v. Hill, 4 Bing. N. Cas. 212 (1838); 
 Emery v. Chesley, 18 N. H. 198 (1846) ; McCracken v. Ansley, 4 Strob. (S. 
 Car.) I (1849); Jones v. Jones, 13 Ired. (N. Car.) 448 (1852); Morse v. 
 Teetzel, i Ont. Pr. R. 369 (1854) ; Mozvry v. Chase, 100 Mass. 79 (1868) ; 
 Josselxn v. McAllister, 25 Mich. 45 (1872) ; Richardson v. Rittcnhouse, 40 N. 
 J. L. 230 (1S78). In Riisscn v. Lucas, i Car. & P. 153 (1824), a sheriff's 
 officer went to a tavern where the defendant was sitting and said to him: 
 "I want you." The defendant replied: "Wait for me outside the door, and 
 I will come to you." The officer went to wait and the defendant got away. 
 In an action by the plaintiff against the sheriff for an escape, it was held 
 that there was no arrest and a nonsuit v/as entered. Abbott, C. J., said: "If 
 Hamer (the defendant) had gone even into the passage with the officer, the 
 arrest would have been complete." 
 
 In Kicholl v. Darley, 2 Y. & J. 399 (1828), a sheriff's officer went to the 
 defendant's house to arrest him on capias ad satisfaciendum and read the 
 warrant to him, v.hereupon the defendant rushed out against the officer who 
 cancht him round the waist but was unable to hold him. The sheriff v/as held 
 liable in debt for the escape. Garrov/, B., said: "Had the officer done his 
 dutv, had he chosen a better opportunity, or had he been armed with force 
 sufficient to repel opposition, the process of the law could not have been 
 intercepted." See People ex rel McCallum v. Gebhardt, 154 Mich. 504, 118 
 N. W. 16 (1908), where the sheriff was held liable for the escape of the de- 
 fendant, a minor, who after submitting to arrest, was rescued by a trick. 
 And see also, Winhorne v. Mitchell, in N. Car. 13, 15 S. E. 882 (1892).
 
 GWINN V. HUBBARD 799 
 
 GWINN V. HUBBARD 
 
 Supreme Court of Indiana, 1832 
 3 Blackf. (Ind.) 14 
 
 Appeal from judgment for the defendant on demurrer to the 
 defendant's plea in an action of debt by the plaintiff against the 
 sheriff for the escape of a debtor taken in execution and released. 
 
 Stevens, J. : Three points have been raised for the consideration 
 of the court.®^ 
 
 The first is, v^hether the action of debt M^ill lie in this state 
 against a sheriff for an escape on the v^rit of capias ad satisfacien- 
 dum. By the common law debt only lies upon contracts. Escapes 
 are considered torts, and are so treated by courts of justice. Hence, 
 at common law, tlie remedy is an action on the case. The statutes 
 of Westm. I, ch. 11 (13 Ed. i) and i Rich. 2, ch. 12, give the action 
 of debt for escape on the writ of ca. sa., and if these statutes are 
 in force here the action of debt lies. This state has adopted not 
 only the common law of England, but also all the statutes in aid 
 thereof, made prior to the fourth year of the reign of Jac. i (except 
 the second section of the sixth chapter 43 Eliz., the eighth chapter of 
 the 13 Eliz., and ninth chapter 37 Hen. 8), of a general nature and 
 not local to that kingdom. Those statutes are affirmative ; they take 
 away no common law remedy, but add one, leaving the party at lib- 
 erty to make his own election as to what remedy he will adopt, and 
 are clearly in aid of the common law and in full force here. Steere 
 V. Field, 2 Mason (C. Ct.) 486; Bonafous v. Walker, 2 T. R. 129; 
 Alsept V. Eylcs, 2 H. Bl. io8.«« 
 
 The second point is, whether the sheriff is liable for escapes, 
 until the county authorities have erected a gaol for the reception 
 of prisoners. By the common law, each county has two prisons — 
 one for the reception of criminals furnished by the public and 
 called public gaols, the other for the reception of debtors, furnished 
 by the sheriff himself. The sheriff may appropriate his own house 
 for that use, or he may furnish any other house he pleases in the 
 bounds of his county; and the government is bound to indemnify 
 him. He is bound at his peril to safely keep all such prisoners in 
 safe custody, until the debt is paid or the prisoner otherwise legally 
 discharged ; and to enable him to do so, the whole means and power 
 of the county are at his disposal. Nothing except public enemies, 
 
 ''The third part of the opinion which holds the commitment of the debtor 
 illegal and the defendant entitled to judgment is omitted. 
 
 *°Where the action of debt is brought, under the statutes, the plaintifF 
 claims the sum for which the debtor was charged in execution. But the 
 plaintifF may, at his election, bring an action on the case and claim damages. 
 Bonafous v. Walker, 2 T. R. 127 (1787) ; Rawson v. Dole, 2 Johns. (N. Y.) 
 454 (1807) ; Porter v. Sayzvard, 7 Mass. 377 (1811) ; Van Slyck v. Hogeboom, 
 6 Johns. (N. Y.) 270 (1810) ; Sawyer v. Ballew, 4 Port. (Ala.) 116 (1836) ; 
 Plnmleigh v. Cook, 13 111. 669 (1852) ; Hutchinson v. Brand, 9 N. Y. 208 
 (1853).
 
 8lX") EXKCTTION 
 
 «)r the act of God. can roloaso him from tlial ol)lii:falion. Sjiiith v. 
 Uillu-r, Cro. l-.liz. 1O7; 6 Ikic. tit. sheriff (H.) 5; Dav t'r Whittlesey 
 V. /vv//. Johns. (N. Y.) 22; Bartlett v. [Fj7//.s', 3 Mass. 86. The 
 defendant rests his defense in this particular, on the statutes which 
 require the boards doing county business in the several counties, to 
 cause a court house, gaol, and other public buildings to be erected 
 in their respective counties as soon as convenient. He insists that 
 these statutes have taken the power and responsibility out of the 
 shcrifl"'s hands, and given them to these boards; and that the sheriff 
 is no longer liable. In South Carolina, in the case of Smith v. Hart, 
 2 Bay (S. Car.) 395, and in Massachusetts, in the case of Burr ell 
 V. Lithgozv, 2 Mass. 526, where there are statutes similar in sub- 
 stance to ours, it was held that although the public authorities may 
 have erected prisons, yet if the prisoners escape by reason of the 
 insufficiency of the prison, the sheriff is liable — he being bound to 
 see and know that his prison was sufficient. By our statutes, the 
 time of erecting those public buildings is left entirely to the discre- 
 tion and convenience of those boards, without any provision for the 
 detention of prisoners until the public prison may be erected. It 
 can not be presumed that the legislature intended that no person 
 should be imprisoned, until it might suit the convenience of the 
 county authorities to erect prisons. The record in this case shows 
 that there was no public prison in the county in which the prisoner 
 could have been detained ; and, in such cases, the court thinks it is 
 very clear that the common law governs. The sheriff ought to have 
 furnished a prison and detained the debtor in close custody until 
 the debt was paid or the prisoner otherwise legally discharged, if he 
 was legally in his custody as such debtor.^^ 
 
 *'In Qreen v. Kern, 2_Pen^&LJW^XPiajL.i67 (1830), debt was brought 
 against the sheriff for the escape of a debtor by breaking the wall around the 
 jail j'ard. The defendant was permitted to prove that the jail and jail yard of 
 the county were defective and insufficient to keep in prisoners and that they 
 had been presented by the prand jur>'. Held, error. Gibson, C. J., said there 
 was an actual escape which according- to the common law "has uniformly 
 fixed the gaoler, who can avail himself of nothing as matter of defense but 
 an act of God or of the common enemv." Accord : BurrcU v. Lithgozv, 2 Mass. 
 526 (1807); Slcmakcr v. Marriott, 5 'Gill & J. (Md.) 406 (1833); Smith v. 
 Hart, 2 Bay (S. Car.) 395 (1802) ; Fairchild & Bacon v. Case, 24 Wend. 
 CN. Y.) 381 (1840) ; O'Ncil v. Marson, 5 Burr. 2812 (1771) ; Wheeler v. Ham- 
 briaht, Q Serg. & R. ( Pa.) 390 (1823). But he may be exonerated by tTie 
 act of the plaintiff. Dexter v. Adams, 2 Denio (N. Y.) 646 (1846) ; Dowdel^v. 
 Hnmm, 2 Watts (Pa,, ^ 61 (1833). Where the sheriff has been held liable for"an 
 escape he may have an action over against the gaoler, as his deputy, on his 
 bond or on his implied undertaking to serve faithfully. Kain v. Ostrander, 
 8 Johns. (N. Y.) 207 (1811) ; Duncan v.^linefelter_,J,JW^n?, (Pji.) 141. 3° 
 Am. Dec. 295 (1836) ; ScarborougJTv.lTiornibn, 9 Pa. St. 451 (1848). 
 
 A sheriflF at common law is noTirabTe Tor an escape on mesne process, if 
 he have the body of the defendant at the return of the writ. 3 Bl. Comm. 
 415; Langdon v.Hathnvcay, I N. H. 367 (1819) ; Williams v. Mostyn, 4 M. & 
 W. 144 (1838); Gehhardt v. Holmes, 149 Wis. 428, 135 N. W. 8i5o (191.2). 
 But on final process any liberty allowed which involves the risk of losing 
 control of the body of the debtor is a voluntary escape for which the .sheriff is 
 responsible. Broixming v. Rittenhoiise, 40 N. J. L. 230 (1878); Planck v.
 
 MANBY V. SCOTT 8oi 
 
 MANBY V. SCOTT 
 
 In the Exchequer Chamber, 1663 
 
 I Mod. 124^ 
 
 Hyde, J. : If a man be taken in execution and lie in prison for 
 debt, neither the plaintiff at whose suit he is arrested, nor the 
 sheriff who took him, is bound to find him meat, drink and clothes ; 
 but he must live on his own, or on the charity of others ; and if no 
 man will relieve him, let him die in the name of God, says the law ; 
 and so say I.^^ 
 
 Anderson, 5 T. R. 2)7 (1792) ; Benton v. Sutton, I B. & P. 24 (1797) ; 
 Hopkinson v. Leeds, 78 Pa^ St. 306 (i8 7<^). 
 
 ' It the sliernr permits an escape, he can not retake the debtor without new 
 process. But if the escape is not permissive, or vokmtary, but the result of 
 negligence, the sheriff may recapture the debtor and this if accomplished 
 before suit brought will constitute a defense. Biixton v. Home, i Show. 174 
 (1691); Davis V. Chapman, 2 Mann. & G. 921 (1841) ; Lansing v. Fleet, 2 
 Johns. Cas. (N. Y.) 3, i Am. Dec. 142 (1800) ; Cheever v. Mirrick, 2 N. H. 
 376 (1821) ; Clark v. Cleveland, 6 Hill (N. Y.) 344 (1844) semble; Colley v. 
 Morgan, 5 Ga. 178 (1848) ; Butler v. IVashhurn, 25 N. H. 251 (1852). 
 
 **An extract from the opinion at page 132. 
 
 ^'Accord : Dive v. Maninghani, Plow. 60 (1550); London v. Wood, 12 
 Mod. 683, 2 Salk. 682 (1701). See King v. Justices, 2 B. & C. 286 (1823). 
 But parish relief might be afforded, 14 Eliz., chaps. 5, 27', 53 Geo. Ill, ch. 113; 
 52 Geo. Ill, ch. 160. At the common law, a prisoner in execution was to be 
 kept in salva et arcta custodia until he satisfied the plaintiff. In the eighteenth 
 century, by rule of court and by statute, various measures were adopted 
 to lesson the hardships of poor debtors confined in prison on civil process. 
 Prisoners were allowed, on entering security, to go about within certain 
 limits outside of the jail walls, 3 D. & E. 583 (1790) ; 2 Bingh. 163 (1824). 
 By the statute of 32 Geo. II, ch. 28, § 13 ("Lord's Act"), if a defendant 
 charged in execution for a debt not exceeding iioo (extended to £300 by 
 3 Geo. Ill 50), surrender his effects to his creditors (except apparel, bedding 
 and tools of trade not amounting in the whole to the value of £10) and 
 make oath to comply with the statute, he may be discharged unless the 
 creditor insists on detaining him, in which case he shall allow him 2S. 4d. 
 per week, on failure to pay which the prisoner shall be discharged. 3 Bl. 
 Comm. 416; I Tidd's Pr. (9th ed.) 375; Fisher v. Bull, 5 T. R. 36 (1792) ; 
 Anonymous, Sayer 102 (1753). In England the practice is now regulated 
 by the Debtor's Act of 1869 (32 and 33 Vict, ch. 62), § 4, and its amend- 
 ments which abolishes imprisonment for debt except in the case of fraudu- 
 lent debtors. Morris v. Ingram, L. R. 13 Ch. Div. 338 (1879) ; 2 Halsbury's 
 Laws of England 337. In the United States the measure of relief to which 
 an imprisoned debtor is entitled is wholly dependent upon the construction 
 of the statutes of the particular states. 16 Enc. PI. & Pr. 703, 17 Cyc. 1541. 
 See N. Y. Code of Civ. Pro., §111, limiting the term of imprisonment to three 
 months where the execution is for less than $500 and to six months in any 
 case; Consolidated Laws of New York (1909), Debtor and Creditor Law, 
 art. S-7, regulating the procedure for the discharge of debtors from imprison- 
 ment; Rev. L. of Massachusetts (1902), ch. 168, §§ 33-49; 2 Comp. L. of New 
 Jersey (1910), Insolvent Debtors, §§ 1-17: Pa. Act of. Marc h26^8i4. 6 Sm. 
 L. 195, 19, 2 P. & L. Dig. (2d ed.) 3973; Act of June i6,~i83b, P. L. 729, 2 
 P. & L. Dig. (2d ed.) 4003. See also People ex ret Lust v. Grant, 10 Civ. Pro. 
 158, 18 Abb. N. C. 220, I N. Y. St. 537 (1886); Padreshefsky v. Walton, 
 6s App. Div. 432, 72 N. Y. S. 979 (1901); Snow v. Shreffler, 148 App. Div. 
 
 51 — Civ. Prog.
 
 S02 EXECUTIO 
 
 SECTION 13. EXECUTIONS TO RECOVER SPECIFIC 
 
 PROPERTY 
 
 3 Blackst. Couun. 412, 413 
 
 If the plaintiff recovers in an action real or mixed, whereby 
 the seisin or possession of land is awarded to him, the writ of 
 execution shall be an habere facias seisinam, or writ of seisin, of 
 a freehold ; or an habere facias possessionem, or writ of possession, 
 of a chattel interest. These are writs directed to the sheriff of 
 the county, commanding him to give actual possession to the plain- 
 tiff of the land so recovered; in the execution of which the sheriff 
 may take with him the posse comitatus, or power of the county; 
 and may justify breaking open doors, if the possession be not 
 quietly delivered. But, if it be peaceably yielded up, the delivery 
 of a twig, a turf, or the ring of the door, in the name of seisin, is 
 sufficient execution of the writ. 
 
 In other actions, where the judgment is that something in special 
 be done or rendered by the defendant, then, in order to compel 
 him so to do, and to see the judgment executed, a special writ of 
 execution issues to the sheriff according to the nature of the case. 
 As, upon an assize of nuisance, or cjuod permittat prosternere, 
 where one part of the judgment is quod nocumentum amoveatur, a 
 writ goes to the sheriff to abate it at the charge of the party, which 
 likewise issues even in case of an indictment. Upon a replevin, the 
 writ of execution is the writ de retorno habendo; and, if the distress 
 be eloigned, tlie defendant shall have a capias in withernam ; but on 
 the plaintift"'s tendering the damages and submitting to a fine, the 
 process in withernam shall be stayed.^° In detinue, after judgment, 
 the plaintiff shall have a distringas, to compel the defendant to de- 
 liver the goods, by repeated distresses of his chattels ; or else a scire 
 facias against any third person in w^hose hands they may happen to 
 be, to show cause why they should not be delivered; and if the de- 
 fendant still continues obstinate, then (if the judgment hath been 
 by default or on demurrer) the sheriff" shall summon an inquest to 
 ascertain the value of the goods, and the plaintiff's damages ; which 
 
 422, 132 N. Y. S 895 (1911) ; Battle v. Surety Co., 78 Misc. 253, 138 N. Y. S. 
 46 (1912) ; Goldreyer v. Foley, 154 App. Div. 584, 139 N. Y. S. 190 (1913) ; 
 Stockwcll V. Sillozaay, 100 Mass. 287 (1868) ; Kellogg v. Underwood, 163 
 Ivlass. 214, 40 N. E. 104 (1895) ; Carpenter v. Goddard, 191 Mass. 54, 76 N. E. 
 953 (1906); Henderson v. Parsons, 211 Mass. 69, 97 N. E. 613 (1912); 
 HidshLer v. Kocker, 20 N. J. L. 390 (1845) ; Louis v. Kaskel, 51 N. J. L. 236, 
 17 Atl. 120 (1889) ; C ommonu^alth v. Sheriff of Alleghen y, 6 Pa. St. 445 
 (1847) ; Power v. Graydon, .S3 Pa. St. 198 (1 866) ; Keim v. Saunders, 120 Pa. 
 St. 121. i^ Atl 710 i ii<^) : Zre emvatdt v. Kr'aus. 148 Pa .bt. S17. 24 Atl. 67 
 ( 1S92) ; Cri ssy V. Vogt, Q Pa.3m)eF. Ct. 418 (1899) ; I)o_escher's Petition, ji 
 Pa. Supe r. rt.'34 6 dooi) ; Irn'i n y. Tfudsoh, 24 Pa. Super. C t 72 (1903) ; 
 Kel^aVv. Norton, 228 111. 3=;6, SiTJ. E. 1037 (1907); Stroheiin v. Deimrl, 7^ 
 Fed. cm.) 4?o Ci8q6) ; Lambert v. Wiltshire, 144 PI- 5^7, 33 N. E. 538 (1893). 
 "Sec 2 Tidd's Practice (9th ed.) 1038; Beel v. Bartlett, 7 N. H. 178 
 (1834) ; Cobbey on Replevin (2d ed.) 322.
 
 VVAITE Z'. COLBY 803 
 
 (being either so assessed, or by the verdict in case of an issue) shall 
 be levied on the person or goods of the defendant. So that, after 
 all, in replevin and detinue (the only actions for recovering the spe- 
 cific possession of personal chattels), if the wrongdoer be very per- 
 verse, he can not be compelled to a restitution of the identical thing 
 taken or detained ; but he still has his election, to deliver the goods, 
 or their value ; an imperfection in the law, that results from the 
 nature of personal property, which is easily concealed or conveyed 
 out of the reach of justice, and not always amenable to the magis- 
 trate. 
 
 (a) Personalty 
 
 WAITE V. DOLBY 
 
 Supreme Court of Tennessee, 1847 
 
 8 Humph. (Tenn.) 406 
 
 Waite sued Dolby in the Circuit Court of Coffee County in 
 detinue. Dolby pleaded non detinet, and a verdict and judgment 
 were entered in tlie following language: "The jury sworn," etc., 
 "do say that the defendant doth detain the mare Rollo, described in 
 the declaration in manner and form as the plaintiff hath complained, 
 and they do assess the plaintiff's damage, by reason of the deten- 
 tion thereof to ten dollars, and the jurors aforesaid upon their 
 oaths aforesaid do further say, that the mare Rollo was of the value 
 of one hundred and thirty-five dollars. It is therefore considered 
 by the court that tlie plaintiff recover of the said defendant, the 
 mare Rollo, if she can be had; and the damages aforesaid assessed 
 for her detention, and also his costs about his suit in this behalf 
 expended; and it is further considered by the court, that in case 
 said mare can not be had, that the plaintiff recover of the defendant 
 the sum of one hundred and thirty-five dollars, the value of the 
 mare, as ascertained by the jury, together with the damages as 
 aforesaid assessed, and his costs," etc. 
 
 On this judgment the clerk issued a fieri facias, in the usual form, 
 for the value of the mare, to wit, one hundred and thirty-five dol- 
 lars and ten dollars damages and costs. 
 
 The fieri facias was levied on the land of Dolby, lying in the 
 county of Coffee. It was sold, and tlie plaintiff, Waite, became the 
 purchaser, and instituted his action of ejectment against Dolby, and 
 at the February term, 1847, of the Circuit Court of Coffee County, 
 the case was tried by Judge ]\Iarchbanks, and a jury, and a verdict 
 and judgment were entered for the plaintiff. The defendant ap- 
 pealed.^^ 
 
 Green, J. : The action of detinue is for the thing detained, and 
 damages for detention ; the value of the property is ascertained by 
 
 "The argument of counsel, and part of the opinion is omittod.
 
 8o4 KXnCUTION 
 
 the jury, and the judi^ncnt is in the aUcrnativc, for the sum so 
 found as the vahic, in case the thinj>- recovered can not be had. In 
 Tixiny; tliis vahie, the ]>ractice is to render a verdict for the highest 
 price, in order to enforce the dehvery of the thing. It is manifest 
 from the form of tlie judgment, and the object in fixing the vakie, 
 that a distringas for the thing recovered must be issued in the first 
 instance. How can it be ascertained that th.e thing can not be had, 
 unless by tlie return of process, which had issued to obtain it? 
 And the judgment for the money is conditional ; if the thing can not 
 be had; therefore, if execution for the money issue, before it is 
 ascertained by the return of a distringas, that the thing can not be 
 had, it is certainly erroneous, if not irregular, and void. It is often 
 difficult to determine whether process be irregular, or erroneous 
 only; but we are inclined to regard the execution in this case as 
 irregtdar and void. 
 
 It is not like the case of the issuance of a fieri facias after a year 
 and a day wilhout a scire facias. In such case there is a regular 
 judgment which authorizes the fieri facias; but by reason of the 
 lapse of time, it is erroneous to take it out, until a scire facias has 
 been issued to revive the judgment. But here, the judgment for the 
 value of the mare, was, on condition the mare could not be had ; 
 until it was ascertained the mare could not be had, there was noth- 
 ing in this judgment for iJie execution to rest upon. 
 
 But be this as it may, there can be no doubt but that the dis- 
 tringas should first issue — until which, tlie issuance of the fieri facias 
 was unlawful. This being the case, the defendant in error acquired 
 no title by his purchase of the land, though the sale might have been 
 valid had' a stranger purchased ; i Tenn. 222. 
 
 Judgment reversed.°- 
 
 *'At common law upon judgment in detinue a distringas issued to compel 
 the delivery of the goods and if the goods were not recovered execution 
 issued against the person or property of the defendant. 3 Blackst. Comm. 413 ; 
 8 Viner's Abr. 40, pi. 15; Keilwey 64 b (1504) ; Peters v. Hcyward, Cro. Jac. 
 682 (1623); MoUoy v. M'Danicl, i Overt (Tenn.) 222 (1805); Garland v. 
 Bugg, 5 Munf. (Va.) 166 (1816) ; Jordan v. Williams, 3 Rand. (Va.) 501 
 (1825) ; Boyd v. IVillianis, 5 J. J. Marsh. (Ky.) 56 (1830) ; Vines v. Brown- 
 rigg, 18 N. Car. 239 (1835) ; Jordan v. Thomas, 34 Miss. y2, 69 Am. Dec. 387 
 (1857) ; Keith v. Johnson, I Dana (Ky.) 604 (1833) ; Robinson v. Richards, 
 45 Ala. 354 (1871) ; Ex parte Vaughan, 168 Ala. 187, 53 So. 270 (1910). 
 
 Under tlie modern English practice a judgment for the recovery of 
 anv property other than land or money may be enforced by writ for the 
 delivery of 'the property, Order XLII, rule 6; Ann. Pr. Appendix H, 10. 
 And ordinarily the sheriff either causes the property to be returned or 
 levies the value assessed in the judgment. But the court may, under Order 
 XLVIII, rule I, upon the plaintiff's application, order the execution to issue 
 for the delivery of the chattel, without giving the defendant the option of 
 returning the property on paying the value assessed. Upon this order, the 
 writ directs that if the property can not be found, the sheriff shall distrain 
 the defendant by all his lands and chattels till the defendant deliver the 
 property. Where the order to return the chattels is personal, disobedience of 
 the defendant may be punished as contempt. Ilynias v. Ogden, L. R. (1905) 
 I K. B. 246. So also, where the writ of delivery would be futile, as where 
 the defendant is out of the jurisdiction, a writ of assi.stance may issue. 
 H'vman v. Ktiight, L. R. 39 Ch. Div. 165 (1888) ; Borde v. Othon, 23 W. R. 
 no (1874).
 
 REBER V. SCIIROEDER 805 
 
 REBER V. SCHROEDER 
 
 Supreme Court of P en nsylvan ia, 1908 
 221 Pa. 152 
 
 Appeal by defendant from judgment of Common Pleas of Berks 
 County on verdict for plaintiff in the case of Sarah Reher v. Daniel 
 
 E. Schroeder, executor of George F. Hagenman.^^ 
 
 Fell, J. : This was an action of replevin for certificates of stock 
 of a national bank, which were in the name and possession of George 
 
 F. Hagenman at the time of his deatli, and were found in his safe 
 by his executor, enclosed in a sealed envelope, with a power of at- 
 torney transferring them to the plaintiff. 
 
 The thirteenth and fourteenth assignments relate to the verdict 
 and the judgment entered thereon, and give rise to questions under 
 the Act of April 19, 1901, P. L. 88, regulating the practice in re- 
 plevin. The defendant had entered a claim property bond and re- 
 tained possession of the stock certificate. The verdict rendered was 
 for the plaintiff without a finding of the value of the shares and 
 damages for their detention, and the judgment entered was a general 
 one in favor of the plaintiff. At common law and before the Act 
 of 1901, where the defendant retained possession of the property, 
 the action proceeded for damages only. The property could not be 
 recovered from him, nor could he tender it in satisfaction of the 
 verdict. The giving of the claim^ property bond put an end to the 
 plaintiff's title, which was thereupon turned into a chose in action 
 to be compensated for in damages. The defendant was the only 
 party who could have a judgment de retorno habendo ; Fisher v. 
 WhooUcry, 25 Pa. 197 ; Scho field v. Ferrers, 46 Pa. 438 ; Rockey v. 
 Burkholter, 68 Pa. 221 ; Morris on Replevin, 210.^* The Act of 
 1901 has changed the practice in this respect, and a plaintiff who 
 has not been given possession of the property is entitled to a v/rit of 
 retorno habendo, as well as to a writ of fieri facias, to recover the 
 value of the property and damages awarded, and costs. It is pro- 
 vided by section 5, that where judgment has been entered for tlie 
 plaintiff for the want of a sufficient affidavit of defense, for a portion 
 of the goods and chattels replevied, he may proceed to recover such 
 goods and chattels by a writ of retorno habendo, or the value thereof, 
 after assessment of damages on a writ of inquiry.^^ Section 7 pro- 
 
 *'The arguments of counsel and part of the opinion are omitted. 
 
 "In Powell V. Hinsdale, 5 Mass. 343 (1809), it is said, per Parsons, C. J.: 
 "In replevin each party may be an actor. If the plaintiff prevails, he shall 
 have damages for the unlawful caption and detention by the defendant and 
 also his costs. But if the defendant prevails, he shall have a return of the 
 goods, and damages for the taking of them on the writ and also his costs." 
 Easton v. Worthinciton. q Serg. & R. (P a.) 130 (1819) ; Parker v. Simonds, 
 49 Mass. (8 Mete.) 205 (1844) ; Frader v. Fredericks, 24 N. J. L. 162 (1853) ; 
 State V. Carrick, 70 Md. 586, 17 Atl. 559, 14 Am. St. 387 (1889). 
 
 *°In Painter V. Snyder, 22 Pa. Super. Ct. 603 (190 3). the mere entry of 
 judgment was held not error. But in IVilburn v. Cologcrs, 97 Miss. 511, 52 
 So. 794 (1910), judgment by default without writ of inquiry was held errone- 
 ous.
 
 8o6 F.XF.CUTION 
 
 viJcs tluit "if the title to said goods and chattels be found finally to 
 be in a party \vho has not been given possession of the same, in 
 said proceeding, the jury shall determine the value thereof to tlie 
 successful party, and he may, at his option, issue a writ in the nature 
 of a writ of retonio habcndo, requiring the delivery thereof to him, 
 witli an added clause of fieri facias as to damages awarded and 
 costs; and upon failure so to recover them, or in the first instance, 
 he may issue execution for the value thereof, and the damages 
 awarded and costs; or he may sue, in the first instance, upon the 
 bond given, and recover thereon the value of tlie goods and chat- 
 tels, damages and costs, in the same manner that recovery is had 
 upon other official bonds." 
 
 Before the Act of 1901, the verdict rendered in this case would 
 have been of no avail to the plaintiff, because a judgment retorno 
 habendo could not have been entered upon it; Moore v. Shenk, 3 
 Pa. 13; and there was no award of damages for which a writ of 
 execution could issue. But b}' virtue of the act, the plaintiff is enti- 
 tled to a return of the property, and she may have a writ to enforce 
 the right. A judgment on the verdict is sufficient to sustain such a 
 writ. She has not obtained all that she was entitled to by the trial, 
 because of the failure of tlie jury to find the value of the property 
 and damages for its detention, but the judgment on the verdict is 
 not invalid. 
 
 The judgment is affirmed.^® 
 
 **Accord: Dur nth Mfg. C a. v. CauffA..j24T. Pa. 21.80 Atl. 708 (1914). 
 In replevin and the corresponding code remedy "claim and delivery" the pro- 
 cedure is now largely statutory and varies gi-eatly. As in the principal case, 
 the statutes in some jurisdictions permit the successful party to elect whether 
 he will take a return of the property or payment of its value. White v. Graves, 
 68 AIo. 218 (1S78) ; Koelling v. August Cast Co., 103 Mo. App. 98, yj S. W. 
 474 (1903) ; Oskaloosa Steam Engine Works v. Nelson, 54 Iowa 519, 6 'N. W. 
 71S (1880) ; Martin v. Ferguson (Ky.), m S. W. 281 (1911). Under codes 
 which allow an execution for the return of the specific property and, if the 
 property can not be had, satisfaction by levy, it is generally held that a return 
 of the property and payment of damages by the unsuccessful party discharges 
 his liability. Divight v. Enos, 9 N. Y. 470, Seld. Notes 226 (1854); N. Y 
 Code Civ. Pro., § 1731 ; Cal. Code Civ. Pro. § 667; Bales v. Scott, 26 Ind 
 202 (1866) ; Marks v. Willis, 36 Ore. i, 58 Pac. 526, 78 Am. St. 752 (1899) 
 Carson v. Applcgarth, 6 Nev. 187 (1870) ; Johnson v. Gallcgos, 10 N. Mex. i 
 60 Pac. 71 (1900) ; Pabst Brewing Co. v. Rapid Safely Filter Co., 56 Misc 
 445, 107 N. Y. S. 163 (1907) ; Leve v. Frazier, 42 Ore. 141, 70 Pac. 376 (1902) ; 
 N. Y. & Brooklyn Brewing Co. v. Angels, 144 App. Div. 655, 129 N. Y. S. 713 
 (1911); Chestnut v. Sales, 44 Mont. 534, 121 Pac. 481 (1912). Compare 
 Swantz V. Pillow, 50 Ark! 300, 70 S. W. 167, 7 Am. St. 98 (i887)._ In New 
 Jersey a defendant who has given bond and retained possession, if unsuc- 
 cessful, can not tender the goods to plaintiff in lieu of damages. Leinbeck 
 & Bets Brewing Co. v. Tarrant, 79 N. J. L. 372, 75 Atl. 474 (1910). In 
 Wyoming an unsuccessful plaintiff can not satisfy a judgment by a return 
 of the property. Montana & W. Oil Co. v. Gibson, 113 Pac. 784 (1911).
 
 LEEPER, GRAVES & CO. V. FIRST NAT. BANK 807 
 
 LEEPER, GRAVES & CO. v. FIRST NAT. BANK 
 
 Supreme Court of Oklahoma, 19 io 
 
 26 Okla. 707 
 
 Error from the District Court of Kiowa County. The First 
 National Bank of Hobart was pledgee in possession of eight steel 
 bridges, valued at $4,855, held as security for an indebtedness of 
 $6,000. On April 18, 1904, Leeper, Graves & Co., a corporation, 
 having given bond signed by itself and D. S. Dill, J. G. Leeper and 
 John W. Graves, brought replevin and the property w^s taken from 
 the possession of the bank and delivered to it. On the trial of this 
 action of replevin judgment was rendered in favor of the bank for 
 the return of the property if it could be had, and if the same could 
 not be returned, then for $4,855 with costs. Afterwards an agent 
 of Leeper, Graves & Co. went to Hobart and tendered a return of 
 the bridges, which was rejected by the bank, after checking over 
 the bridges and ascertaining that certain parts were missing, and 
 an action was begun by the bank within a few days on the replevin 
 bond. On the trial the court found, as a conclusion of law, that to 
 escape liability on the bond it was necessary for the company to 
 tender a return of the complete structures or to have obligated itself 
 to make them complete by supplying any necessary parts found to be 
 missing. Judgment was entered for the bank for $4,855, with inter- 
 est. The defendants bring error.^^ 
 
 Dunn, C. J. : No contention is made that the company did not 
 receive these missing articles in the replevin action, nor was there 
 any evidence offered to show that they were withheld in bad faith, 
 nor were not such that either of the parties could go into the open 
 market and readily purchase and replace, as they would any other 
 item of personal property. And, if the rule obtains that a plaintiff 
 who in an action of replevin under a judgment requiring him to 
 return the property taken may return less than the whole when part 
 is lost, then to our minds the bond which is given in such a case 
 would be responsive to the requirements suggested by the court in 
 its second conclusion, wherein it is held that the company should 
 have obligated itself to have made the structures complete by sup- 
 plying any necessary part found to be missing. On tlie question 
 as to whether a plaintiff against whom a judgment has been ren- 
 dered in replevin may return a portion of the property, and receive 
 credit therefor, being liable for the unreturned portion on his bond, 
 or whether he must tender all or none, the authorities are not en- 
 tirely harmonious. The following cases hold that a partial return 
 with a monetary liability for the unreturned portion is not per- 
 missible, and that a plaintiff under such a state of facts must return 
 all or pay the judgment for the entire amount of the property 
 
 "'The statement of facts is abridged from the opinion of the court, part 
 of which is omitted.
 
 8o8 KXECUTION 
 
 received. IJ'lictniorr v. Ruf'c, 6--, Cal. j;,7 ; Pauls v. Muudine, 37 
 Tex. Civ. App. ()Oi ; Kingslcv v. .V(/»t'r, 17 Misc. (N. Y.) 544; 
 Stt-:rns w Tuitc, 104 Mass. 328. However, by far the greater nunihcr 
 of authorities, and in our judpiiont with the better reasoning, 
 depending somewhat on the particuhir facts in each case, support 
 the rule that in an action of replevin where the ])laintiff secures 
 possession of the property and on the trial a judgment is rendered 
 requiring its return or the valud thereof in case a return can not be 
 had, it is the duty of plaintiff in good faith to tender in as good con- 
 dition as received all of the same within a reasonable time, and it 
 is the duty of defendant to accept such a tender and receive the 
 propertv or a substantial part thereof and recoup any damages suf- 
 fered on the replevin bond.'"* 
 
 In the case at bar, as the parts of the different bridges which 
 were not tendered constituted but a small fraction of the entire 
 amount of the property taken, and tliere w^as no showing that the 
 same could not be readily procured in the open market, or w^ere 
 witliin plaintiff's control, we can see no reason why a party in such 
 a case should not be required to accept the great bulk of the prop- 
 erty involved and recoup on the bond given for such as was missing. 
 Counsel for the bank in their brief ask if a wagon be replevied, and 
 plaintiff be required to restore, could he tender the tail-gate, and 
 require its acceptance? To this we will say that we think not, but 
 should the w^agon be tendered entire with the exception of the tail- 
 gate, W'hich it was not vi^ithin the power of the plaintiff to restore- 
 that is, was lost and not wilfully withheld — we believe that its 
 acceptance would be required wnth an allowance of damages there- 
 for. So it will be seen the conclusion to which w-e have come is that 
 by the bond given the company had obligated itself to make the struc- 
 tures tendered complete as they w-ere when they received them, or, 
 to the same end, make the obligees whole for all loss or damages 
 suffered.^'* 
 
 Cause remanded to trial court to enable plaintiffs to establish 
 and recover damages in accordance with this opinion. 
 
 ^Citin? Wells on Replevin, § 422; Shinn on Replevin, § 679; Cobbey 
 on Replevin, § 1389; Washington Ice Co. v. Webster, 125 U. S. 426, 31 L. ed. 
 790 (1887) ; Larahee v. Cook, 8 Kans. App. 776, 61 Pac. 815 (1899) ; Harts v. 
 Wendell, 26 111. App. 274 (1S87); Edivin v. Cox, 61 111. App. 567 (1895); 
 Allen v. Fox, 51 N. Y. 562, 10 Am. Rep. 641 (1873) ; Yelton v. Shnkhard, 85 
 Ind. 190 (1882) ; Archer v. Long, 47 S. Car. 556, 25 S. E. 84 (1896) ; Reavis 
 V. Horner, 11 Nebr. 479, 9 N. \Y. 643 (1881) ; Johnston v. Mason, 64 N. J. L. 
 258, 45 Atl. 618 (1899) ; Pickett v. Bridges, 10 Humph. (Tcnn.) 171 (1849) ; 
 Pabst'Brcziing Co. v. Rapid Filter Co., 54 Alisc. 305, 105 N. Y. S. 962 (1907). 
 Accord: Franks v. Matson, 211 111. 338, 71 N. E. loii (1904); Trundle v. 
 Register P. Co., 58 Colo. 81, 143 Pac. 282 (1914); Schleaning v. West, 34 
 S. Dak. 356, 148 N. W. 604 (1914). See Black v. Black, 74 Cal. 520, 16 Pac. 311 
 (1888), and compare Burke v. Koch, 75 Cal. 356, 17 Pac. 228 (1888). 
 
 "In Rennebanm v. Atkinson, 21 Ky. L. J. 587, $2 S. W. 828 (1899). where 
 part of the propertv could not be delivered, it is said : "The plaintiff in such a 
 case is entitled to the whole of the property claimed, or, if the whole of the 
 propertv- is not produced, he is entitled to the value of the whole of it unless 
 good cause be shown for its nonproduction." The successful party is not 
 under anv obligation to accept property not identical with that taken under 
 the writ 'of replevin. Irvin v. Smith, 68 Wis. 227, 31 N. W. 912 (1887);
 
 CALVART V. IIORSFALL BoQ 
 
 (b) Realty 
 
 CALVART V. IIORSFALL 
 
 At Nisi Prius ix the King's Bench, 1802 
 
 4 Esp. 167 
 
 Trespass for the mesne profits of certain premises, situated in the 
 parish of Pancras. 
 
 The plaintiff proved the judgment in ejectment, in a cause of 
 Doe on the demise of Calvart v. Roe. 
 
 To prove that the defendant was in possession of the premises 
 at the time of the ejectment, the plaintiff called the person by whom 
 the declaration in ejectment was served upon the premises; he said, 
 that he served the declaration on a person who said his name was 
 Horsfall ; and that he explained to him the notice, at the foot of the 
 declaration to appear. 
 
 The defendant had let the plaintiff into possession of the prem- 
 ises; but no writ of possession had ever been executed after the 
 judgment in ejectment. 
 
 Gibbs said, the only question was, whether the plaintiff could 
 maintain an action of trespass for the mesne profits, without having 
 a writ of possession executed? That as possession was necessary 
 to maintain trespass, it appeared by the proceedings in the eject- 
 ment, that he was not in possession when the ejectment vv-as brought, 
 nor legally so until put into possession under the writ of possession. 
 
 Lord Ellenborougii : It has been proved that the plaintiff has 
 been in possession by consent of the party. I hold, that being in 
 possession by the act of the party when he brings this action, that 
 that is sufficient to entitle him to maintain the action.^ 
 
 PAckhoff V. Eikenhary, 52 Nebr. 332, 72 N. W. 308 (1S77). But in debt on a 
 replevin bond it was held a sufficient defense that the losing party surrendered 
 all the property replevied except a part which was missing, and that instead 
 of the latter other and more valuable articles had been delivered to and 
 accepted by the successful party. Sands v. Frit::, 84 Pa. St. 15 (1877). 
 Compare Cnmmcmwcnlth v. S'chr rj£d£r^i Pif-rks Co. (P a.) 61 (1Q08). where 
 it v,as held that the voluntary surrender and acceptance of stock certificates, 
 the subject of the replevin suit was not a waiver of an action on the bond to 
 recover dividends received pending the suit. 
 
 If the goods have been destroyed or disposed of so that a return can not 
 be had the judgment need not be in the alternative. Richardson Drug Co. v. 
 Teasdall, 59 Nebr. 150, 80 X. W. 488 C1899), where it was established that the 
 property in controversy had been destroyed by fire. Clouston v. Gray, 48 Kans. 
 31, 28 Pac. 983 (1892); Burke v. Koch, 75 Cal. 356, 17 Pac. 228 (1888); 
 Seligman v. Armando, 94 Cal. 314, 29 Pac. 710 (1892) ; Washington Ice Co. 
 V. Webster, 62 Maine 341, 16 Am. Rep. 462 (1873). .See 2\so Johnson v. 
 Mason, 70 5j. J. L. 13, 56 Atl. 137 C1903) ; Maguire v. Pan-American Amuse- 
 ment Co., 205 Mass-. 64, 91 N. E. 135, 137 Am. St. 422 C1910). 
 
 ^Accord: Jackson v. Combs, 7 Cow. CN. Y.) 36 C1827) ; Caldw ell v . 
 WnJfjXi. ^^ Pn St 37 8 (18=^3 ) semble. A writ of hebere facias possessionem 
 IS not indispensable in all cases. Where possession is peaceably surrendered 
 by the defendant, the entry of the plaintiff is sufficient without v.rit. Lacy v.
 
 SlO ^ F.Xi:CUT10X 
 
 UrTON r. WI'.LT.S 
 
 In thk Kinci's Bi:ncit, 1588 
 
 I J.cflit. 145 
 
 Tn an ejectione firmae by Upton against Wells, judgment was 
 given for the plaintiff, and upon the habere facias possessionem the 
 sheriff returned tliat in the execution of the said writ he took the 
 plaintiff- with him and came to tlie house recovered, and removed 
 thereout a woman and tv/o children, which were all the persons 
 which upon diligent search he could find in the said house, and 
 delivered to the plaintiff peaceable possession to his thinking, and 
 afterwards departed, and immediately after three other persons 
 which were secretly lodged in the said house expulsed the plaintiff 
 again ; upon notice of which he returned again to the said house to 
 put the plaintiff in full possession, but the other did resist him, so 
 as witliout peril of his life and of them that were with him in com- 
 pany he could not do it. And upon this return the court awarded 
 a new writ of execution, for that the same was no execution of the 
 first writ,^ and also awarded an attachment against the parties. 
 
 Berry, 2 Sid. 155 (1659) ; Withers v. Harris, 2 Ld. Raym. 806 (1702) ; Taylor 
 V. Horde, I Burr. 60 (1757), at pp. 88, 113; Doe ex dem. Stephens v. Lord, 
 7 Ad. & El. 610 (1837) semble; Jackson v. Haviland, 13 Johns. (N. Y.) 229 
 (1816) ; Bowman v. Violet, 4 T. B. Mon. (Ky.) 351 (1827) ; Davis v. Lee, 2 
 B. Mon. (Ky.) 300 (1842); Creighton v. Proctor, 66 Alass. (12 Cush.) 433 
 (1853); Vasqnez v. Ezving, 24 Mo. 31, 66 Am. Dec. 694 (1856); Fisher v. 
 Johnston, 25 U. C. Q. B. 616 (1866) ; CrQiUL,F£ggoJ36 Pa St 9,iq (1870) ; 
 Witbeck V. Van Rensselaer, 64 N. Y. 27 (1876); Bowar v. Chicago West 
 Division R. Co., 136 111. loi, 26 N. E. 702, 12 L. R. A. 81 (1891). But in 
 Hildrcth v. Thompson, 16 Mass. 191 (1809), the rule is said to be otherwise 
 "where the judgment is for an uncertain portion of or interest in land; 
 for in such case it can not be ascertained into what part of the land the 
 demandant has a right of entry." 
 
 At common law "unless the writ of possession were issued within a year 
 and a day after judgment, the judgment must be revived." King v. Davis, 
 137 Fed. 198 C1903). For the present English practice see Rules of the Su- 
 preme Court, Order XLVII ; Savage v. Bcntlcy, 90 L. T. 641 (1904). 
 
 "The plaintiff, or his agent, must accompany the officer to the premises, 
 and, at his peril, point out the property to be delivered. Queen v. Aylcworth, 
 Saville 28 (1581) ; lUoyd v. Bcthell, i Roll. (K. B.) 322 (1617) ; Connor v. 
 ]Vest, S Burr. 2672 (1770); Young v. Brnces, 5 Litt. (Ky.) 324 (1824); 
 Jackson v. Rathhone, 3 Cow. (N. Y.) 291 (1824) ; Den ex dem. McAndrezvs 
 v. O'Hanlin, 18 N. J. L. 127 (1840) ; Johnson v. Ncvill, 65 N. Car. 677 (1871). 
 If more property is taken than is awarded by the judgment, the court will 
 restore the injured party to that of which he is improperly deprived. Roe 
 V. Dazvson, 3 Wils. 49 (1770) ; Jackson v. Hashrouck, 5 Johns. (N. Y.) 366 
 CiSio); Jackson ex dem. Sutherland v. Stiles, 5 Cow. (N. Y.) 418 (1826^; 
 Den ex dem. Hicks v. Johnson, 12 N. J. L. 275 (1831) ; Coleman v. Doe ex 
 dem Henderson, 3 111. (2 Scam.) 251 (1840) ; Shaiv v. Bayard, 4 Pa. St. 257 
 C1846); Natchez v. Vandervelde, 31 Miss. 706, 66 Am. Dec. 581 (1856); 
 .Skinner v. Hannan, 81 Hun (N. Y.) 376, 30 N. Y. S. 987, 63 N. Y. St. 180 
 Ci8q4) ; Russell v. Webh, 96 Ark. 100, 131 S. W. 456 (1910). See also Oetgen 
 V. Ross, 47 111. 142, 95 Am. Dec. 468 (1868). 
 
 'The execution is not complete until the sheriff and his officers are 
 gone and the plaintiff left in full, quiet and peaceful possession. Dame
 
 CLARK V. PARKINSON 8ll 
 
 CLARK V. PARKINSON 
 
 Supreme Judicial Court of Massachusetts^ 1865 
 92 Mass. 133 
 
 Petition by a deputy sheriff for an attachment for contempt 
 against the respondents, for resisting the service of a writ of pos- 
 session issued by this court and committed to the petitioner for 
 service. 
 
 At tlie hearing in this court, before Ploar, J., notice having been 
 given to the respondents, it appeared that the suit in which the 
 writ of possession issued was brought against a widow who, at the 
 time of the commencement thereof, was in actual occupation of the 
 premises, her son and daughter hving with her and claiming title to 
 the premises under their father. The son, who was one of the 
 respondents in this petition, was then under twenty-one years of 
 age. The other respondent married the daughter after the com- 
 mencement of the suit, and at the time of the marriage came upon 
 the premises, claiming title in right of his wife. The respondents 
 were not parties to the suit in which the writ of possession issued ; 
 and they did not resist the removal of the defendant in that suit 
 from the premises, or oppose the officer's putting the plaintiff in 
 possession, so far as that could be done without removing them ; 
 but they did threaten and were prepared to use force to prevent the 
 officer from removing them from the land, contending that th^ pre- 
 cept gave him no right or authority so to expel them, and that it 
 could be fully executed without putting them out. 
 
 Molincux v. Fidgam, Palm. 289 (1622) ; Kingsdale v. Mann, 6 Mod. 27 (1703) ; 
 Den ex dem. Smalhvood v. Bilderback, 16 N. J. L. 497 (1838) ; Scott v. 
 Richardson, 2 B. Mon. (Ky.) 507 (1842) ; Farnsworth v. Fowler, i Swan 
 (Tenn.) i, 55 Am. Dec. 718 (1851) ; IVitbeck v. Van Renselaer, 64 N. Y. 27 
 (1876) ; Lank ford v. Green, 62 Ala. 314 (1878) ; People ex rel. Daniel C. 
 Sciidder v. Cooper, 20 Him (N. Y.) 486 (1880); Nezvell v. Wrighani, 102 
 N. Y. 20, 6 N. E. 673 (1886) ; Lee Chuck v. Oiian Wo, 81 Cal. 222, 22 Pac. 594, 
 15 Am. St. ^o (1889) ; Loeb v. JValler, no Ala. 487, 18 So. 268 (1895) ; Butler 
 V. Frontier Tel. Co., 186 N. Y. 486, 79 N. E. 716, il L. R. A. (N. S.) 920, 
 116 Am. St. 563 (1906). Thus, the writ is not duly executed where the 
 sheriff gives formal possession but the plaintiff is obliged to leave immedi- 
 ately to avoid personal violence by a mob. Grcsham V. Thun, 3 Mete. (Ky.) 
 287, yy Am. Dec. 174 (i860). So, where on the removal of the tenants another 
 person with an officer to support his pretensions assumes possession. Union 
 Township v. Bayliss, 40 N. J. L. 60 (1878). But a physical expulsion is unnec- 
 essary if the defendant peaceably submits to the writ. Smith v. White, 
 5 Dana (Ky.) 376 (1837), where it is said: "A defendant may surely yield 
 obedience to the process of the court, without being forcibly turned out, 
 neck and heels." In Wenoert v. Zimmerma n, 3 3 Pa. St . 5o8_(i859), it is said: 
 "It is very common, and in the wmter time a most proper mode of executing 
 such writs, to take a lease on a nominal rent from the defendant, and leave 
 him in possession." The removal of the defendant's furniture, while proper, 
 is not indispensable in all cases.' Witbeck v. Van Rensselaer, 64 N. Y. 27 
 C1876) ; Union Township v. Bayliss, 40 N. J. L. 60 (1877) ; Commonwealth v. 
 Lennori, 172 Mass. 434, 52 N. E. 521 (1899).
 
 8l2 EXECUTION 
 
 Upon these facts the case was reserved for the determination 
 of the whole court."* 
 
 IIOAU, ].: The court are of opinion that an attachment for con- 
 tempt should not be granted; because an officer, serving a writ of 
 possession, has no authority by his precept to remove from the land 
 described therein any person who is not a defendant in the suit in 
 which the writ issued, nor holding under a defendant, and who was 
 in occupation of the land at the time the suit was commenced, claim- 
 ing by a title independent of the defendant. The writ of possession 
 is the' result or fruit of a judgment; and the judgment is the legal 
 determination of the rights of those only who are parties or privies 
 to it. Even a judgment in rem is binding upon all persons in interest, 
 only because all persons in interest are required, and have a right 
 to come in and assert their title to the property which the judgment 
 binds, in the suit or proceeding in which the judgment is rendered. 
 
 It is apparent that the judgment of the court in a real action, 
 although it may determine, as against the tenant, that he held un- 
 lawful possession of the demanded premises at the time of bringing 
 the suit, can not decide this as against any person not privy in estate 
 with him. The judgment may be recovered upon default, wdiich is 
 taken as the confession of the tenant, and can bind no one but him- 
 self and those claiming under him. If it is the result of a trial, 
 there is no good reason why it should be held more conclusive upon 
 the possession than upon the title. In either case it is a judgment 
 between the parties, upon such a case as they have chosen or have 
 been able to present. 
 
 The officer who serves the writ may take a bond of indemnity, 
 and the English text-books all state that it is the usual practice to 
 do so.^ This may dispose of the objection that he is required by 
 his precept to do a precise thing, and that he should not have to 
 determine at his peril whether he is thereby committing a trespass. 
 The writ is procured by the demandant in the real action, and it_ is 
 for him to take care that he includes in his suit all the actual parties 
 in possession, claiming title. 
 
 We find that the text-books on the duties of sheriffs all state 
 in general terms that in serving a writ of possession he should re- 
 move all persons from the premises; and the digest and dicta in 
 reported cases undoubtedly contain a similar statement. They all 
 adopt substantially the same language, which is taken from Upton 
 
 ^The arguments of counsel are omitted. 
 
 'If there is a reasonable doubt whether a person in possession should be 
 turned out, the officer before acting may demand indemnity. Dupont v. Ervin, 
 2 Brev. (S. Car.) 400 (1810) ; Long v. Neville, 36 Cal. 455, 95 Am. Dec. 199 
 (1868) ; Grace v. Mitchell, 31 Wis. 533, n Am. Rep. 613 (1872) ; Hamberger 
 V. Seavey, 165 Mass. 505, 43 N. E. 297 (1896). But the officer is not clothed 
 with any judicial power to pass on the rights of the parties, and, unless 
 instructe'd differently by the court, his duty is to deliver possession according 
 to the mandate of the writ. Mason v. Payntcr, I Ad. & El. (N. S.) 974 
 (1841) ; Bowie v. Brake, 4 Duer 676, 2 Abb. Prac. 161, 11 N. Y. Super. Ct. 
 676 (1855) ; Powell V. Lawson, 49 Ga. 290 (1873) ; HaU v. Dexter, Fed Cas. 
 No. 5929, 3 Sawy. (U. S.) 434 (1875); Huntington v. Taylor, 156 Fed. 700 
 (1907), affd.jSj Fed. 703-
 
 CLATiK V. PARKINSON 813 
 
 V. Wells, I Leon. 145; Com. Dig. Execution, A. 5; Crocker on 
 Sheriffs, sections 554, 556, 557; Allen on Sheriffs, 251 ; N. E. Sheriff, 
 141. In Howe v. Butterfield, 4 Cush. (Mass.) 305, it was said by- 
 Mr. Justice Wilde that an officer was authorized and bound, for the 
 purpose of delivering possession of a house, "to remove from the 
 possession all persons therein, and especially those claiming under 
 the party against whom judgment had been recovered." But all these 
 expressions must be construed secundum subjectam materiem, and 
 as referring to the tenant, or persons in privity with the tenant, or 
 mere strangers or intruders. No case has been cited in which it 
 was decided that one in possession before the commencement of the 
 suit could be lawfully dispossessed upon an execution issuing upon 
 a judgment in a suit between third persons. And in Gwynne on 
 Sheriffs, 418, the rule is stated otherwise, and the true distinction 
 made. In Ex parte Reynolds, i Caines (N. Y.) 500, it is said to be 
 "a settled rule of practice that no tenant who was in possession 
 anterior to the commencement of an ejectment, can be dispossessed 
 upon a judgment and writ of possession, to which he is no party" ; 
 and a writ of restitution was ordered. To the same effect are the 
 Kentucky cases in 5 Littell 305 ; i A. K. Marsh. 333 ; 2 A. K. Marsh. 
 40. See also 2 Tidd's Practice 1033 ; Jo hnson v. Fullerton, 44_]r'a. 
 
 Petition dismissed.® 
 
 "Under the writ of possession the officer must remove not only the 
 defendant but all others in possession in subordination to or in privity v^^ith 
 him. Ex parte Black, 2 Bailey (S. Car.) 8 (1830) ; Howe v. Butterfield, 
 58 Mass. 302, 50 Am. Dec. 785 ( 1849) ; Den ex dcm. Thomas Hancock v. Fen, 
 24 N. J. L. 544 (1854) ; Hanson v. Armstrong, 22 111. 442 (1859) ; Johnson v. 
 Fiillerton, 44 Pa. St. 466 (1863) ; Wetherhee v. Dunn, 36 Cal. 147, 95 Am. Dec. 
 166 (1868) ; Fiske v. Chamberlin, 103 Mass. 495 (1870) ; MojiongaJiela V. C. 
 M.A. v. Patterson. 06 Fa. St. 460 (1^880) ; Gray v. Nunan, 63 Cat 226 (1883) ; 
 HTierstal v. Muir, 64 Cal. 450, 2 Pac. 33 (1884) ; Ritchie v. Johnson, 50 Ark. 
 551, 8 S. W. 942, 7 Am. St. 118 (1888) ; Hessel v. Jghnjon, 124 Fa. St. 233, 
 16 Atl. 855 (1889) ; Xellv v. Northrot>. i ^oTPai^^ St: 537, 28 Atl. 364 (1^4) ; 
 State v. Staed, 143 Mo. 248, 45 S. W. 50 (1897) '^Vampbcll v. Rockzuell, 62 
 App. Div. 266, 70 N. Y. S. lioi (1901) ; Harrod v. Burke, 76 Kans. 900, 92 
 Pac. 1128, 123 Am. St. 179 (1907) ; Dclacey v. Commercial Trust Co., 51 Wash. 
 542, 99 Pac. 574 (1909) ; Hillyard V. Fick, 89 Kans. 108, 130 Pac. 675 (1913). 
 But not strangers to the proceeding in possession under a claim of title 
 anterior to the suit nor persons whose possession is distinct from that of the 
 parties to the action. Howard v. Kennedy, 4 Ala. 592, 39 Am. Dec. 307 (1843) ; 
 Kercheval v. Ambler, 7 J. J. Marsh. (Ky.) 626, 23 Am. Dec. 446 (1832); 
 Smith v. Pretty, 22 Wis. 655 (1868); Goerges v. Hnfschmidt, 44 Mo. 179 
 (1869) ; Mayo v. Sprout, 45 Cal. 99 (1872) ; Irving v. Cunningham, yy Cal. 52, 
 18 Pac. 878 (1888) ; Bushong v. Rector, 32 W. Va. 311, 9 S. E. 225, 25 Am. St. 
 817 (1889) ; ijessd V. Fritf,, T ?rtJPlL-St 229, 16 Atl. 853 (1889) ; Krepps v. 
 Mitchell, 156 Pa. St. .-^20. 27 Atl. 161 (180-^^ ; Haviland v. Chase, 116 Mich. 
 214, 74 N. W. 477, 72 Am. St. 519 (1898) ; Cyprcanson v. Berge, 112 Wis. 260, 
 %7 N. W. 1081 (1901); Moseby v. Fleck 242 P a. 154, 88 Atl. 940 (1913) ; 
 Puckett v. Jameson, 157 Ky. 172, 162 S. W. 801 (1914)/ 
 
 Where the recovery is of an undivided interest in an estate, it is not 
 the duty of the sheriff to eject the co-tenants, but to put the plaintiff in 
 possession with the others. Dupont v. Ervin, 2 Brev. (S. Car.) 400 (iSio) ; 
 Ash V McGill. 6 Whart. /Pa.") -^jo t (1841) ; Doe ex dem. Hellyer v. King, 
 6 Kxch. 791 (1851) ; Tevts V. Flicks, 38 Cal. 234 (1869) ; Stokes v. Morrow, 
 54 Ga. 597 (1875) ; Skinner v. Flannan, 81 Hun (N. Y.) 376, 30 N. Y. S. 987. 
 63 N. Y. St. 180 (1894).
 
 Sl4 EXECUTION 
 
 JACKSON EX DEM. MIIJ^ER v. HAWLEY 
 
 Supreme Court or New York, 1834 
 
 II IV cud. (iV. Y.) 182 
 
 At the last January term judgment was entered for the plain- 
 tiff upon a cognovit. About the first of March a writ of habere 
 facias possessionem, returnable at the next May term, was issued 
 and executed by delivering possession of the premises claimed to 
 an agent of the plaintiff, who continued in possession four or five 
 days; when one Alfred Pitcher entered by force, as alleged on the 
 part of the plaintiff; Pitcher, however, insisting that he found the 
 possession vacant when he entered. A motion was made for an 
 alias habere facias, which was resisted by Pitcher, on various 
 grounds and among others, that he was the owner of the property. 
 The court, however, in the decision of the motion, say that he is 
 not a stranger to the suit, and that he is estopped from alleging 
 title, in himself, no collusion being alleged between the plaintiff and 
 Hawley, the defendant, who gave the cognovit.'^ 
 
 Savage, C. J. : The question is, whether the plaintiff can have 
 a new writ, or whetlier he is compelled to bring a new action. It is 
 remarkable that so little is to be found on this subject, either in our 
 own or the English books. In our own reports we find nothing, 
 and in the English reports contradictory decisions. The old rule is 
 stated by Adams, in his Treatise on Ejectment, page 309. If the 
 lessor be ousted by the defendant after possession delivered to him, 
 upon a hab. fac. poss. and before the writ is returned and filed, he 
 shall have a new writ or attachment; but if he be ousted by a 
 stranger, he shall be driven to a new ejectment. The reason as- 
 signed for the distinction is this, that the defendant shall not by his 
 own act keep the possession which has been recovered from him 
 by due course of law ; but as to the stranger, there has been no 
 trial between him and the plaintiff, and he may have the better title. 
 In Goodright v. Hart, 2 Str. 830, the plaintiff had obtained judg- 
 ment by prevailing upon the tenants not to appear; after writ of 
 possession executed, the landlord prevailed upon the tenants to 
 attorn to him. The plaintiff moved for a new writ of possession, 
 which the court refused saying, if immediately after the writ exe- 
 cuted, the tenants had attorned, a new writ should have been issued, 
 but not where the possession had been delivered for about a month, 
 as it had in that case. In Rex v. Harris, Ld. Raym. 482, Holt, 
 Chief Justice, said if possession be delivered by hab. fac. poss. and 
 that is avoided immediately, the party shall have a new writ ; but 
 if, after restitution awarded, the party enjoys quiet possession, and 
 then is removed by new force, he must resort to a new remedy. In 
 Kingsdale v. Mann, Salk. 321, 6 Mod. 27, possession was delivered 
 
 'Part o-f the opinion of the court is omitted.
 
 JACKSON EX BEM. MILLER V. IIAWLEY 815 
 
 about nine In the morning, and at six at night the plaintiff vras 
 forcibly put out of possession ; the court doubted whether a new 
 writ should issue. They said if the disturbance had been made 
 before the officer had departed, an attachment would have been is- 
 sued. Powell quoted a case where an entry upon the plaintiff was 
 made the same day of the execution of the writ, and the Court of 
 Common Pleas granted a new writ; to which Holt answered, so 
 they might, if the first writ were not returned, otherwise not. From 
 this case the remedy would seem to depend upon the fact whether 
 the first Vi^rit had been returned ; and from the case in Strange, upon 
 the plaintiff's enjoying quiet possession for a month or more. But 
 these cases and some others, it is supposed, were disregarded and 
 perhaps overruled by the case of Doe v. Roe, i Taunt. 55, where 
 the court held that an alias can not issue after a writ is executed; 
 and it is added that if it could, the plaintiff, by not having the first 
 writ returned, might retain the right of suing out a new writ, as a 
 remedy for any trespass by the tenant within twenty years after the 
 date of the judgment. In that case possession had been delivered 
 to the plaintiff in February, and in October following the tenant 
 forcibly entered. This last case is certainly not obligatory upon 
 us, and all the older cases agree that where the entry upon the 
 plaintiff is before the return of the writ and such entry is by the 
 tenant or under his title, the plaintiff is entitled to a new writ. In 
 one case the court were willing to extend this remedy for a month ; 
 in another they doubted where the execution of the writ and the 
 subsequent forcible entry were upon the same day. Fi^om the re- 
 mark of Lord Holt, the writ in that case must have been returned 
 before the motion was made; and he probably applied the reason 
 given in i Taunt, that if the first execution is returned satisfied, 
 there can be no alias. I am satisfied that the practice in this state 
 has been to award a new writ of possession where the first has not 
 been returned, where the defendant has entered upon the plaintiff's 
 possession.^ 
 
 Motion granted. 
 
 'The plaintiff, if dispossessed by the defendant before the return of the 
 writ, may apply for another writ of possession or call upon the sheriff to 
 place him again in possession. Dame Molincux v. Fulgaiu, Palm. 289 (1622) ; 
 Ratcliffv. Tate, i Keb. 779 (1664) ; Doggct v. Roe, Comb. 150 (1689) ; King 
 V. Harris, 12 Mod. 268 (1699) ; Linehan v. Anthony, Batt}^ 453 (1826) ; Doe 
 ex dem. Thompson v. Mirehouse, 2 Dowl. 200 (1833) ; Doe ex dem. Pitcher 
 V. Roe, g Dowl. 971 (1841) ; Doe ex dem. Lloyd v. Roe, 2 Dowl. (N. S.) 407, 
 7 Jur. 352 (1842) ; Masscy v. Ejector, i Jones Exch. 457 (1835) ; Stacpoole v. 
 Walsh, L. R. 6 Ir. 444 (1880) ; Jackson ex dem. Thompson v. Stiles, 9 Johns. 
 (N. Y.) 391 (1812) ; United States v. Slay maker, 4 Wash. C. C. 169, Fed. Cas. 
 No. 16313 (1821); Criffeth v. Dobson, 3 Pen. & Watts (Pa ) 228 (1831) ; 
 Gresham v. Thum, 3 Metc7"(Ky.) 287, jy Am. Dec. 174 (i860) ; Van Rensse- 
 laer V. Witheck, 2 Lans. (N. Y.) 489 (1870). If the sheriff has returned the 
 writ showing due execution, the plaintiff, if afterward dispossessed, is left 
 to his remedy by action. Loveless v. Ratcliff, i Keb. 785 (1664) ; Doe ex dem. 
 Pate V. Roe, i Taunt. 55 (1807) ; Wilson v. Chant on, 6 L. T. (N. S.) 253 
 (18^2) ; Mayo v. Chiles, 3 T. B. Mon. (Ky.) 258 (1826) ; Dent v. Simmons, 
 7 J. J. Marsh. (Ky.) 42 (1831) ; Hinton v. McNeil, 5 Ohio 509, 24 Am. Dec. 
 315 (1832); Fowler v. Currie, 2 Dana (K}^) 52, 26 Am. Dec. 436 (1S34) ;
 
 8l6 KXKCUTION 
 
 li'catltrrht-od v. Cumi'wghavi, 4 Dana (Ky.) 78 (1836) ; Hough v. Norton, g 
 Oliio 45 (1S39) ; Atii'ood V. .S7(//<-, ^g Kans. y^S, 54 Pac. 10^7, 68 Am. St. 393 
 (1898): 
 
 _In Pccnsylvaiiia under the Act of February I, 1834, P. L. 26, P. & L. Dip. 
 (2d ed.) 30.VI, alias and phirics writs may 1)C aTToweu T)y the court on cause 
 shown. r/iiWi://L/n'<i v.. i/auijL^__ra- Super. Ct. 373 (1897). In CaHfornia 
 inidcr § i_MO of tlie Code of Civil Procedure a person re-entcrin,u: after 
 beini; dispossessed by process of law is puiUy of contempt of court and 
 tipon conviction tlie court must issue an alias process to restore to possession 
 tlie person entitled. Batchcldcr v. Moore, 42 Cal. 412 (1871); Huerstal v. 
 Mn'xr. 62 Cal. 479 (1880) ; Dutra v. Pcrcira, 135 Cal. 320, 67 Pac. 281 (1902). 
 See also Baker v. Butte Water Co., 40 Mont. 583, 107 Pac. 819 (1910).
 
 CHAPTER VII 
 Appeal and Error 
 
 " *A writ of error'. This writ lieth when a man is grieved by 
 an error in the foundation, proceeding, judgment or execution, and 
 thereupon it is called breve de errore corrigendo. But without a 
 judgment, or an award in nature of a judgment, no writ of error 
 doth lie; for the words of the writ be, si judicium redditum sit, and 
 that judgment must regularly be given by judges of record, and in a 
 court of record, and not by any other inferior judges in base courts, 
 for thereupon a writ of false judgment doth lie." Coke on Little- 
 ton, f. 288b.i 
 
 SECTION I. NATURE OF THE REMEDY 
 
 STEVENS V. CLARK 
 
 Circuit Court of Appeals of United States, Seventh Circuit, 
 
 1894 
 
 62 Fed. 321 
 
 Appeal from the Circuit Court of the United States for the 
 ■Northern District of Illinois.- 
 
 BuNN, J.: There is in this case a preliminary question of juris- 
 diction to be decided. The action was one at law, to recover dam- 
 ages upon a contract for the delivery of ice. The casei was tried 
 before a jury in January, 1893, and a verdict rendered for the 
 plaintiff on January 13, 1893, for $4,397.97. On February 20, 1893, 
 
 ^At common law a writ of error was an original writ, issuing out o£ 
 chancery at the instance of a party aggrieved by any error in the foundation, 
 proceeding, judgment or execution of a suit in a court of record and was in 
 the nature of a commission to the judges of the superior court to examine 
 the record upon which tlie judgment was given and to affirm or reverse it 
 according to law. Jaqucs V. Cesar, 2 Saund. 100 (1670) note; 2 Bac. Abr. 187. 
 The writ was grantable ex debito justitiae in all cases except in treason and 
 felony. Queen v. Paty, 2 Salk. 504 (1705) ; Yates v. People, 6 Johns. (N. Y.) 
 337 (1810); Lymes v. State, 5 Porter (Ala.) 236, 30 Am. Dec. 557 (1837); 
 Lippitt V. Bidwcll, 87 Conn. 608, 89 Atl. 347 (1913) ; 2 Tidd's Pr. (9th ed.) 
 1 134; I Archbold's Pr. 1345. 
 
 In England the judicature acts have abolished proceedings in error and 
 substituted an appeal in all cases where the Court of Appeal has occasion to 
 deal with proceedings in the High Court. These acts give the Court of Appeal 
 more elastic powers than were formerly exercised on writ of error. Appeals 
 are by way of rehearing with full discretionary power to receive further 
 evidence on questions of fact; and to give any judgment or make any order 
 which ought to have been made or to grant a new trial. Appeals are brought 
 in a summary way and no petition, case or other formal proceedings other 
 than notice of motion are necessary. Rules of the Supreme Court, Order 
 LVIII, rules 1-20. Judicature Act of 1873, §§ 18, 19. An appeal lies from the 
 Court of Appeal to the House of Lords, which appeal is by way of petition 
 praying for a review of the order or judgment appealed from. Appellate 
 Jurisdiction Act of 1876, §§ 3, 4. 
 
 *Part of the opinion of the court is omitted. 
 
 52— Civ. Proc. 817
 
 8l8 APPEAL AND KRROR 
 
 a motion for .1 new trial was overruled, and judgment entered for 
 tlio plaintilT upon the verdict. On April 19th, au appeal was prayed 
 for and allowed. The case was argued upon the merits on October 
 5, 1S93, ^vithout any objection being raised as to the jurisdiction of 
 this court to hear the case. It was afterwards discovered by the 
 court that no writ of error had ever been prayed for or issued, and, 
 the attention of counsel being called to the fact, argimient was had 
 and bi'iefs were filed on the question whether or not this court could 
 take jurisdiction of the case by consent, without a writ of error ever 
 having been issued. If it could, then the objection on tliis ground 
 must be considered as waived by the parties having argued and 
 submitted the case upon the merits without objection. 
 
 We are of opinion that this court has not obtained jurisdiction 
 of tlie case, and that the appeal must be dismissed. The appropriate 
 and only mode of bringing cases of law for reviev/ before this court 
 is a writ of error. An appeal is applicable only in chancery cases. 
 The distinction is obvious, and has been steadily observed and 
 maintained by the United States Supreme Court for a century. 
 Equity cases must be brought up by appeal, which brings up the 
 entire record upon the facts as well as the law. Cases at law can 
 only be brought up by writ of error, which simply brings up tlie 
 record for tlie correction of errors of law ; that is to sa}-, a writ of 
 error carries up nothing but questions of law, and these questions 
 are to be determined according to the facts found in the record. An 
 appeal carries up ever3'thing. It substitutes the higher court in 
 place of the lower, and all questions, whether of fact or of law, de- 
 pending upon evidence or law, may be re-examined by the appellate 
 court, just as they w'cre originally examined by the lower court 
 having original jurisdiction. This was tlie practice in England at 
 the time of the adoption of our constitution, and had been for a 
 long time; but by some oversight or omission in the original judici- 
 ary act of September 24, 1789 (i Stat. ch. 20), this distinction was 
 not preserved, and that statute (section 22) provided generally 
 for the review of cases going up from the circuit court, whether 
 legal or equitable, by writ of error; so that in all cases, whether at 
 law or in equity or admiralty, a writ of error was the proper pro- 
 ceeding to obtain a review in the Supreme Court. After this law 
 had remained in force about fourteen years, from September, 1789, 
 to March, 1803, this distinction, which had always existed in the 
 English practice, was found so important that congress changed the 
 law, by act of ]\Iarch 3, 1803 (2 Stat. ch. 40), by providing that, in 
 cases of equity and admiralty and maritime jurisdiction, and of 
 prize and no prize, an appeal should be allowed to the Supreme 
 Court. The effect of this provision was to repeal, by implication, 
 the law of 1789, so far as that allowed a writ of error in a case in 
 equity or admiralty, and to harmonize the system of appellate juris- 
 diction, and make it conform to the ancient and well-established 
 principles of judicial proceedings. The writ of error, in cases at 
 common law, remains in force, and submits to the revision of the 
 Supreme Court only the law. The remedy by appeal is confined to
 
 STEVENS V. CLARK 819 
 
 equity and admiralty cases, and brings before the appellate court 
 the facts as well as the law. These remedies could never in the 
 United States courts be used interchangeably. The San Pedro, 2 
 Wheat. (U. S.) 132. 
 
 There can be no doubt that the law of 1891 (chapter 517, section 
 6),^ providing that the circuit court of appeals shall exercise appel- 
 late jurisdiction to review, by appeal or by writ of error, final de- 
 crees and judgments of the district and circuit courts in certain de- 
 fined cases, preserves the same distinction which has hitherto so 
 long existed, and that the proper proceeding in cases in equity is 
 an appeal, and in cases at law a writ of error. If the language of 
 this provision were to be construed literally, either an appeal or writ 
 of error might be resorted to for the purpose of taking cases either 
 at law or in equity to this court. But the provision should be con- 
 strued with reference to the hitherto existing law and practice in 
 these cases. There can be no presumption that Congress intended 
 to change the practice unless that intention is plainly manifested by 
 the language of the act. 
 
 The Supreme Court has uniformly held that it can obtain appel- 
 late jurisdiction in a case at law only by the issuing by the proper 
 authority of a writ of error, and by filing the same in the court 
 which rendered the judgment. Brooks v. Norris, 11 How. (U. S.) 
 204. Consent will not give jurisdiction ; and if, at any time, the rec- 
 ord does not show the necessary facts to give the court jurisdiction, 
 the court will dismiss the case. The jurisdiction of all the United 
 States courts is special. The Supreme Court and the circuit court 
 of appeals possess no appellate power in any case unless conferred 
 upon them by act of congress; nor can such jurisdiction, when 
 conferred, be exercised in any other form, or by any other mode of 
 proceeding, than that which the law prescribes. Barry v. Mercien, 
 5 How. (U. S.) 103; United States v. Curry, 6 How. (U. S.) 106. 
 In McColliim v. Eager, 2 How. (U. S.) 61, it was decided by the 
 Supreme Court that a decree in chancery can not be brought up for 
 review by a writ of error. In Sarchet v. United States, 12 Pet. (U. 
 S.) 143, which was an action at law upon a bond (opinion by Chief 
 Justice Taney), it was held that the case could not be brought to 
 the Supreme Court by an appeal, but must come up on writ of error, 
 to give the court jurisdiction; and the court say in that case it had 
 been so repeatedly held by that court. In Ballance v. Forsyth, 21 
 How. (U. S.) 389 (opinion by Chief Justice Taney), the same doc- 
 trine was reaffirmed ; and it was held further, that where an appeal 
 had been taken and dismissed, and a motion made to reinstate the 
 case, and a stipulation to that effect signed and filed by the parties, 
 tliat consent could not give jurisdiction where the law did not. 
 
 In the case at bar no writ of error has ever been issued, and the 
 time for issuing one has expired a month prior to the hearing. 
 The result is, the appeal must be dismissed.* 
 
 'Supplied by Federal Judicial Code of 1911, § 128; U. S. Comp. Stats. 
 (1913), § 1 120. 
 
 ^In Wiscart v. Daiichy, s Dall. (U. S.) 321, i L. ed. 619 (1796), it is said 
 by Ellsworth, C. J.: "The judicial statute of the United States speaks of an
 
 S-20 APPEAL AM) ERROR 
 
 RAXD i: KING 
 
 Supre me Court oe rEN-NsvLVANiA^ 18 9 
 134 Pa. St. 641' 
 
 ^^'ILLIA^IS, J. : The contents of the paper books, and the char- 
 acter of the oral suggestions made in this case, and some others at 
 the present term, lead us to believe that it is desirable to call atten- 
 tion once more to the difference between the several modes of re- 
 view in use in this state. Prior to the act of Alay 9, 1889,*"' there 
 Avere three of these in common use, and the peculiar characteristics 
 of each were well understood by tlie profession. That most gener- 
 ally employed was the writ of error, which lay against any final 
 judgment in any court of record, and against such interlocutory and 
 
 appeal and of a writ of error but it docs not confound the terms, nor use them 
 promiscuousl)'. They are to be understood, when used, according to their 
 ordinary acceptation, unless something appears in the act itself to control, 
 modify, or change, the fixed and technical sense which they have previously 
 borne. An appeal is a process of civil law origin, and removes a cause en- 
 tirely; subjecting the facts as well as the law, to a review and retrial; but 
 a writ of error is a process of common law origin, and it removes nothing for 
 re-examination but the law." Jennings v. TJie Perseverance, 3 Dall. (U. S.) 
 336, I L. ed. 625 (1S97) ; Blaine v. The Carter, 4 Dall. (U. S.) 22, i L. ed. 724 
 (1800); United States v. Wonson, i Gall. (U. S.) S, Fed. Cas. No. 16750 
 (1812) ; United States v. Goodwin, 7 Cranch. (U. S.) 107 (1812) ; Loveless 
 v. Ransom, 109 Fed. 391 (1901) ; Evansville R. Co. v. Tcrrc Haute, 161 Ind. 
 26, 67 N. E. 686 (1903) ; Wing field v. Neall, 60 W. Va. 106, 54 S. E. 47 (1907). 
 
 Nelson v. Lowndes County, United States Circuit Court of Appeals, 
 Fifth Circuit (1899), 93 Fed. 538. Bill in equity in the circuit court for 
 an injunction to restrain a trustee, under a deed of trust to secure notes, 
 from selling the land. An injunction was granted but afterward a decree 
 for its dissolution was entered unless the principal and interest due on 
 the notes was paid within a given time. The defendants objected to the 
 refusal of the court to allow counsel fees and trustee's compensation and 
 obtained a writ of error to remove the case to the circuit court of appeals. 
 Held, The writ of error must be dismissed. An appeal is the only mode by 
 which a decree in chancery or in admiralty, can be brought from an inferior 
 federal court to this court, bringing up the whole case for re-examination 
 on the merits, whether of law or fact. On writ of error the merits are not 
 under consideration, but only such errors as the court can from the record 
 see that the inferior court committed. Accord: Marin v. Lalley, 17 Wall. 
 (U. S.) 14, 21 L. ed. 596 (1872) ; Murdoch v. Memphis, 20 Wall. (U. S.) 590, 
 22 L. ed. 429 (1874) ; Hayes v. Fischer, 102 U. S. 121, 26 L. ed. 95 (1880) ; 
 Idaho & O. L. Imp. Co. v. Bradbury, 132 U. S. 509, 33 L. ed. 433 (1889) ; 
 Fleitas v. Richardson, 147 U. S. 538, 37 L. ed. 272 (1892) ; Cidberhouse v. 
 Hawthorne, 107 Ark. 462, 156 S. W. 421 (1913). 
 
 The only mode in which the Supreme Court of the United States may 
 review a final judgment or decree of a state court is by writ of error. Federal 
 Judicial Code of 1911, § 237; U. S. Comp. Stat. (1913), § 1214. 
 
 A writ of error lies only upon a judgment or award in the nature of a 
 judgment, hence it was formerly held that the writ could not be brought 
 before judgment was formally given, and although by later practice the writ 
 was permitted to be tested before judgment entered, still an actual entry was 
 essential to the validity of the writ before its return. Tomlinson v. Armour, 
 75 N. J. L. 748, 70 Atl. 314 (1907). 
 
 'Extract from opinion of the court. 
 
 'i P. & L. Dig. (2d ed.) 303.
 
 RAND V. KING 82 1 
 
 auxiliary orders as have been made reviewable upon it by statute. 
 On this writ the judgment is reviewed with reference to alleged 
 errors which are pointed out by exceptions taken to the action of 
 the trial court at the time when the rulings are made, and as a gen- 
 eral rule the power of the Supreme Court is limited to the questions 
 so raised. Warsavj Tp. Poor D. v. Knox Tp. Poor D., 107 Pa. 301. 
 In all equity cases, and those following the equity forms, an appeal 
 from the decree complained of is the proper mode of review. It 
 brings up the pleadings and the evidence on which the decree rests, 
 and makes it necessary for the appellate court to examine, and see 
 whether the decision is just and conscionable on the case that was 
 presented to the chancellor who made it. The remaining method 
 was by writ of certiorari. This writ brought up the record in any 
 given case for review and correction, but it brought the record 
 only. Carlson License, 127 Pa, 330; Holland v. White, 120 Pa. 
 228. The errors to be corrected must appear on the face of the 
 record. Chase v. Miller, 41 Pa. 403 ; and the merits can not be in- 
 quired into upon this v/rit, but are left to the judgment of the court 
 below. Election Cases, 65 Pa. 20. Neither the opinion of the 
 court, nor the evidence forms any part of the record proper, and 
 for that reason they will not be examined on certiorari. Holland v. 
 White, 120 Pa. 228. The character of the proceedings to be reviewed, 
 suggested, therefore, the method to be adopted, and the limits 
 within which the practitioner should direct his preparation. 
 
 Since the Act of 1889, these modes remain applicable in the 
 same cases, within the same limits, and with the same effect as 
 before, the only difference being that now they are all called by the 
 same name.'' That act provides "that all appellate proceedings in 
 the Supreme Court heretofore taken by writ of error, appeal or 
 certiorari shall hereafter be taken in a proceeding to be called an 
 appeal." It will be noticed that this act does not profess to extend 
 the right of review, to change its extent in cases already provided 
 for, or to modify in any manner its exercise. It simply provides 
 that dissimilar proceedings shall be called by the same name. An 
 appeal in name may therefore be a writ of error or a certiorari in 
 legal effect, and it is necessary, in every case, to look into the rec- 
 ord and determine at the outset of our examination whether what 
 is "called an appeal" is such in fact, or is a writ of error or a cer- 
 tiorari.^ 
 
 ^Accord: Gates v Penna. R. Co., 1^4 Pa^ _£L-f)66, 26 Atl. 598 (1893); 
 Laird's Abbcal. 2 Fa. .Super. ( t. ^ 00 (1806) •'Hapaood^S. Co. V. Saupp, 7 Pa. 
 b?uper. Ct. 480 JLL898) : lit re Diamond Street. io5~Pa. 2 54, 46_AtTr428 (i960) ; 
 Cofnmon wcalihv Cnrtnrri, 48 Pa. Su per. CxTjz (1911). 
 
 *The"statutory appeal differs so greatly in the various jurisdictions that 
 it is almost impossible to lay down rules that will precisely indicate its effect. 
 In some states the distinction between appeals in equity and writ of error 
 are strictly adhered to; in others the appeal has some of the characteristics of 
 both. See People ex rel. Figaniere v. Justices of New York Marine Court, 
 2 Abb. Pr. (N. Y.) 126 (1855) ; Gormly v. Mcintosh, 22 Barb. (N. Y.) 271 
 (1856) ; N. Y. Code Civ. Proc, § 1293, et seq.; Sale v. Pratt, 36 Mass. (19 
 Pick.) 191 (1837) ; Monti v. Guild, 44 Mass. (3 Mete.) 2,7^ (1841) ; Kingsbury 
 V. S perry, 119 111. 279, 10 N. E. 8 (1887) ; Mason v. Alexander, 44 Ohio St.
 
 822 ArrKAt, AMI KKROR 
 
 ANONYMOUS 
 
 y. B. Hilary Term, 21 Jlilzc. Ill, 9 />/. 25 (1347) 
 
 Xotc that Thorpe came to the bar and said how that A had 
 brought a writ of account against one B and was awarded an ac- 
 count, and he said that a capias ad computandem issued against him 
 and then he said that B sued a writ to have the record come into 
 the King's Bench, alleging that he would have error for the sake 
 of disturbing the account; and he prayed that the record might not 
 be removed until an account v/as had. Stanford. No more shall 
 it ; for the plea is not ended until he has accounted ; et ea de causa 
 tlie court granted him that the record should not be removed." Quod 
 nota. 
 
 DITSON CO. 1: TESTA 
 
 Supreme Judicial Court of IMassaciiusetts, 1912 
 
 213 Mass. 109 
 
 RuGG, C. J.: This is an appeal from an order of the superior 
 court overruling a plea in abatem.ent. There has been no trial on 
 the merits and no judgment. Hence the case is not properly here. 
 It has been decided many times that this court has no jurisdiction 
 to consider an appeal from any interlocutory decision until after 
 judgment unless the judge reports the question. Cotter v. Nathan 
 & Hurst Co., 211 Mass. 31, and cases cited; Cummings v. Ayer, 188 
 Mass. 292; Fay v. Upton, 153 Mass. 6; Shawmut Commercial Paper 
 Co. V. Cram, 212 Mass. 108.^'' 
 
 Appeal dismissed. 
 
 318 (1886) ; White v. Howd, 66 Conn. 264, 33 Atl. 915 (1895) ; Bumbalck v. 
 Peehl, 95 Wis. 127, 70 N. W. 71 (1897) ; Neb. Trust Co. v. Lincoln R. Co., 
 53 Nebr. 246, 73 N. W. 546 (1897) ; Baker v. Belvin, 122 N. Car. 191, 30 S. E. 
 337 (1898); Lippitt V. Bidwell, 87 Conn. 608, 89 Atl. 347 (1914) ; Elbert v. 
 Scott, 90 Atl. (Del.) 587 (1914) ; In re Hanbury, 160 App. Div. 662, 146 N. Y. 
 S. 44 (1914)- 
 
 •Accord: Wood v. Medcalf, i Rolle 85 (1614) ; Metcalfe's Case, 11 Coke 
 38 (1614) : B Ciller V Zeigler. i Pen & W. (Pa ) 135 (1829). 
 
 Countess of IVarzvick v. The Lord Bcrlic^ey, Cro. Eliz. 644 (1598). In 
 a writ of partition, judgment was quod partitio fiat. Whereupon, before the 
 second judgment, Lork Berkeley brought a writ of error. But all the court 
 held, that until the second judgment given, quod partitio stabilis fit, the 
 record is not full, nor the judgment perfect; and therefore the record should 
 not be removed. 
 
 "Accord : Painter v. Lebanon Land Co., 178 Mich. 47, 144 N. W. 483 (1913). 
 At law, the judgment or decree complained of must be final. Fitswilliains 
 V. Copley, Dyer 290b (1569) ; Russell v. Prat, i Leon. 193 (1589) ; Metcalfe's 
 Case, II Coke 38 (1614) ; Dominus Rex. v. Decant, Dean &c. of Dublin, 
 I Str. 536 (1722) ; Samuel v. Judin, 6 East, 333 (1805) ; Pentecost v. Mar/ahee, 
 5 111. (4 Scam.) 326 (1843); Hayes v. Caldwell, 10 111. (5 Gill.) 33 U848) ;
 
 BOZSON f. ALTRINCriAM &C. COUNCIL 823 
 
 BOZSON V. ALTRINCHAM URBAN DISTRICT COUNCIL 
 
 In the Court of Appeal, 1903 
 
 L. R. (1903), I K. B. 547 
 
 Appeal by the plaintifif from an order of Wills, J. : 
 The action was brought to recover damages for breach of con- 
 tract. An order in the following terms was made in chambers : "It 
 is ordered that the action be transferred to the non-jury list. Ques- 
 tions of liability and breach of contract only to be tried. Rest of 
 case (if any) to go to official referee." The case came on before 
 Wills, J., at Manchester, on March 6, 1902. The learned judge 
 held that there was no binding contract between the parties, and 
 made an order dismissing the action, upon which order judgment 
 was subsequently entered for the defendants. The plaintiff ap- 
 pealed from the order of Wills, J. Notice of appeal was given on 
 May 3, 1902. 
 
 Pickford, K. C. (Langton with him), for the defendants. 
 There is a preliminary objection to the hearing of this appeal. It 
 is an appeal from an interlocutory order, and the appeal is there- 
 fore out of time. The test for ascertaining whether an order is final 
 or interlocutory, as laid down by the court of appeal in Salaman v. 
 Warner, L. R. (1891), i O. B. 734, is that an order is not a final 
 
 People V. Thurston, 5 Cal. 517 (1855) ; R^lcy v. Farnsworth, 116 Mass. 223 
 (1874) ; Mackancss v. Long, 8.S Pa. St. ik8 (1877) ; Morse v. Rankin, 51 Conn. 
 326 (1883); L coper v. l/andcrvecr, 47~N. J. L. 178 (1885); Comins V. 
 Turner's Falls Co, 140 Mass. 146, 3 N. E. 304 (1885) ; Bender v. Penna. Co., 
 148 U. S. 502, 13 S. Ct. 640, 37 L. ed. 537 (1892) ; Parker v. Harden, 122 N. 
 Car. Ill, 28 S. E. 962 (1898) ; Dorschcimer's Estat e, o Pa. Super. Ct. 422 
 (1899) ; Tompkins v. Bowen, 123 Mich. 377, 82 N. W. 51 (1900); NoojTn v. 
 U. S., 164 Fed. 692 (1Q08) ; Fox v. Fox, 128 App. Div. 876, 113 N. Y. S. 121 
 (1908) ; Hillinfd y. Sterlinaworth Co.. 224 Pa. jjg, y;} Atl. 191 (1909) ; 
 Miller v. Fits, 41 Pa. Sup gr Ct .yS^ (joio) ; Blanton v. IVesi Coast R. Co., 
 58 Fla. IDQ, 50 bo. 945 (1909) ; Kirk v. Raikvay Co., 66 W. Va. 486, 66 S. E. 
 683 (1909) ; Smith v. Dellitt, 244 111. 75, 91 N. E. 94 (1910) ; Finkelstein v. 
 Lyon, 159 111. App. 13 C1910) ; Denver v. Brozvn, 47 Colo. 513, 108 Pac. 971 
 (1910) ; State ex rcl Iba v. Mosman, 231 Mo. 474, 133 S. W. 38 (1910) ; 
 Brooks V. Hargrave, 162 Mich. 599, 127 N. W. 689 (1910) ; Griffiths v. R. Co., 
 ^'^^S\ ^'^^' ^^ ^^^- 7^>^' "^""^ ^^^- 1912D, I3n (1911); Allgair v.^Rlckman, 
 82 N. J. L. 369, 81 Atl. 752 (1911) ; Landmesser v. Hayivard, 157 App. Div. 
 74. 141 N. Y. S. 730 (1913); Bonner v. SchwAtr.. 9/ ^7. Pa /|8t, 89 Atl. 579 
 (1913) ; Zuccaro v. Nazzaro, 216 Mass. 289, 103 N. E. 907 (1913). 
 
 In equity the English chancery practice permitted appeals from interlocu- 
 tory decrees of the chancellor. In the United States this practice has not 
 been adopted except in a few instances, usually provided by statute. Forgay 
 V. Conrad, 6 How. (U. S.)2oi, 12 L. ed. 404 "(1848). As to when a decree 
 in equity is final, see Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 7;^ (1882) ; 
 McCourkey v. Toledo R. Co., 146 U. S. 536, 36 L. ed. 1079 (1892) ; Mills v. 
 Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271 (1837) ; Morgan v. Rose, 22 N. J. 
 Eq. 583 (1871) ; Farmers Market Co. V. P. & R. Terminal R. Co., 142 Pa. St. 
 580 (1891) ; Humphreys v. Stafford, 71 Aliss. 135, 13 So. 865 (1893) ; Ex parte 
 Elyton Land Co., 104 Ala. 88, 15 So. 939 (1893) ; Ealcthorp v. Palethorp, 16S 
 Pa St. 102, 31 Atl. 917 (1895) ; Repass w. MooreTgt Va. 147, "30"^. E. 458 
 XiSqS); Morton v. Beach, 56 N. J. Eq. 791, 41 Atl. 214 (1898).
 
 824 ArrKAI. AMI r.KKOR 
 
 order unless it is diic nuulo on such an application or proceeding 
 that, for whichever side the decision is given, it will, if it stands, 
 finally determine the matter in litigation. In the present case the 
 decision of Wills, ]., as given did in fact put an end to the litigation, 
 but it would have been otherwise if the decision had been in favor 
 of the plaintiiT, because then the case would have had to go before 
 the official referee. The order of Wills, J., was therefore, according 
 to the rule enunciated in Salaman v. Jl'anier, an interlocutory 
 order. The principle of that case was affirmed in In re Herbert 
 Riwes & Co., L. R. (1902), i Ch. 29, but there is an earlier de- 
 cision of the court of appeals, Shubrook v. Tufnell, L. R. 9, O. B. 
 Div. 621, which was not cited in SaloDian v. Warner, and which ap- 
 pears to be in conflict with it. 
 
 IMontague Lush, K. C. and M. Macnaghten, for the plaintiff, 
 were not called upon. 
 
 The Karl of Halsbury, L. C. : The learned counsel for the 
 defendants has very properly called our attention to the fact that 
 tlie authorities on this point are not in harmony. I prefer to follow 
 the earlier decision. I think the order appealed from was a final 
 order, and the appeal is therefore brought within the prescribed 
 time. 
 
 Lord Alverstone, C. J. : I agree. It seems to me that the 
 real test for determining this question ought to be this: Does the 
 judgment or order, as made, finally dispose of the rights of the 
 parties? If it does, then I think it ought to be treated as a final 
 order; but if it does not, it is then, in nsy opinion, an interlocutory 
 order. 
 
 Sir F. H. Jeune, P., concurred. 
 
 Objection overruled." 
 
 "In Bostwick V. Brinkcrhoff, 106 U. S. 3, 27 L. ed. yz (1882), it is said 
 by Waite, C. J.: "The rule is well settled and of long standing that a judg- 
 ment or decree to be final, within the meaning of that term as used in the 
 acts of Congress giving this court jurisdiction on appeals and writs of error, 
 must terminate the litigation between the parties on the merits of the case, 
 so that if there should be an affirmance here, the court below would have 
 nothing to do but to execute the judgment or decree it had already rendered." 
 Compare Chappcll v. Punk, 57 Md. 465 (1881) ; Ex parte Norton, 108 U. S. 
 237, 27 L. ed. 709 (1883) ; Motver v. Fletcher, 114 U. S. 127, 29 L. ed. 117 
 (1885) ; Ex parte Spencer, 95 N. Car. 271 (1886) ; Connecticut Fire Ins. Co. 
 V. Manning, 177 Fed. 893 (1910) ; IVoglom v. Perth Amboy, 80 N. J. L. 469, 
 75 Atl. 190 (1910) ; Norton v. Shore Line, 84 Conn. 24, 78 Atl. 587 (1911) ; 
 County Court of Denver v. Eagle Rock Gold Mining & Reduction Co., 50 
 Colo. 365, 115 Pac. 706 (1911) ; Hynes v. Jennings, 262 111. 268, 104 N. E. 
 697 (1914) ; Jones v. Buckingham S. Co., 1 16 Va. 120, 81 S. E. 28 (1914) ; 
 Zappettini v. Buckles, 167 Cal. 27, 138 Pac. 696 (1914), with Penncu Steel Co.'s 
 Appeal , -161 Pa.. St. '^71. 2 Atl. 294 (1894) ; People v. American Trust Co., 
 150 N. y7ii7, 44 N. E. 949 (1896) ; North Point Co. v. Canal Co., 14 Utah 
 155, 46 Pac. 824 (1896) : Stegw.aier v. Keystone Coal Co., 232 Pa. 140, 81 Atl. 
 187 (1911); McMullen v. kinnslcy, ^± K. J. L. 258, 82 Atl. '46 (1912); 
 Commomvrnlth v Bniinrr 03R Pn 31:0, 5^^ Atl. 198 (1Q13) ; Roth V. Mercan- 
 tiJelTank, 41 App. (D. C.) 293 (1914) ; Farris v. .9/. Paul's Bapti.'it Church, 
 216 Mass. 570, 104 K. E. 639 (1914) ; Williams v. Hney, 263 III. 275, 104 N. E. 
 1008 (1914).; Gouge v. Bennett, 166 N. Car. 238, 81 S. E. 1065 (1914). 
 
 To entitle a judgment to review it should be formally entered as a 
 record of the court below. People v. McCiitcheon, 40 Mich. 244 (1879);
 
 TOWNSEND V. MASTERSON &C. CO. 825 
 
 TOWNSEND V. MASTERSON, SMITH & SINCLAIR STONE 
 
 DRESSING CO. 
 
 Court of Appeals of New York 1857 
 
 15 A^. Y. 587 
 
 Motion by the defendants to dismiss an appeal taken by the 
 plaintiff, on the ground that the parties had, intermediate the judg- 
 ment of the special term and the hearing of the appeal at the gen- 
 eral term, stipulated that no appeal should be brought to this court. 
 
 The action was brought in the superior court to compel the 
 trustee for the Masterson Company to cancel a mortgage which the 
 plaintiff had executed. The defendant set up, by way of counter- 
 claim, that the plaintiff was indebted to it, and that the mortgage 
 vv'as held as security for that indebtedness. The case was tried be- 
 fore a referee who reported that there was due the Masterson Com- 
 pany $3,647.20 and judgment was entered in accordance with the 
 report at the special term, both parties excepting to certain de- 
 cisions against them. Subsequently, the attorneys for the parties, 
 the plaintiff's attorney acting by his direction, signed the following 
 agreement: "It is hereby mutually stipulated that the appeal in 
 this case from the referee's report be brought to a hearing before 
 the general term of this court as soon as practicable, and that no 
 appeal shall be taken from the decision of the general term to the 
 court of appeals." On the hearing at the general term the stipu- 
 lation was incorporated in the record. The judgment of the general 
 term affirmed the previous judgment with modifications. ^- 
 
 Denio, C. J. : The suggestion made on the argument by the 
 plaintiff's counsel, that the stipulation had relation only to the ap- 
 peal on his part, seems not to be well founded. When the stipula- 
 tion was signed, neither party had served any notice of appeal to 
 the general term. Both parties had, however, taken exceptions to 
 decisions of the referee, and it is clear from the stipulation in re- 
 gard to time for making a case, and from the terms of the other 
 stipulation upon which the motion is founded, that both parties con- 
 templated appealing to the general term. That stipulation was 
 mutual, therefore, in its terms and effect. Both parties concurred 
 that they had reason for complaining of the repart of the referee, 
 and they deliberately agreed that each should be content with what 
 
 Kilmer v. Bradley, 80 N. Y. 630 (1880) ; Derlcth v. De Graff, 104 N. Y. 661, 
 10 N. E. 351, I Silvernail Ct. App. 327 (1887) ; Gilpatrick v. Glidden, 82 Maine 
 201, 19 Atl. 166 (1889) ; Morgan v. Flexncr, 105 Ala. 356, 16 So. 716 (1894) ; 
 In re Pearsons, 119 Cal. 27, 50 Pac. 929 (1897) ; Wolff v. Wilson, 25 Pa . 
 Super. Ct. 266 (1Q04 ) ; Griffiths v. Monong ahcla R.' Co., 2t,2 Fa. 639, 8 1 Atl. 
 713, Ann. Cas. 1912U, i3n (1911) : Franklin Co. v. Blake, 2^7 111. 354, 100 N. E. 
 029 (1913) ; Brown v. Cray, 88 Conn. 141, 89 Atl. 1123 (1914). But compare 
 New O leans R. Co. v. Morgan, jy U. S. 256, 19 L. ed. 892 (1869) ; Spehn v. 
 Hnehschen, 83 Wis. 313, 53 N. W. 550 (1892) ; Nelson Theater Co. v. Nelson, 
 216 Mass. 30, 102 N. E. 926 (1913). 
 
 "The statement of facts is abridged.
 
 826 APrF.AI, AXn F.ICROR 
 
 tlic g;oncral term shoulJ decide, an J that they would not protract 
 tlie litigation by an ajipcal to this court. 
 
 It is insisted by the defendants' counsel that the jurisdiction of 
 this court is limited to hearing appeals upon their merits, and it 
 can not enforce stipulations made by the parties in the subordinate 
 courts. But certainly, the duty of hearing ai)peals involves the jur- 
 isdiction of determining whether a particular case is properly before 
 us on appeal. It is perfectly competent for the parties to determine 
 in the preliminary steps of the litigation, whether they will place 
 the question in dispute in a condition to be reviewed here. They 
 may omit to except to the decision of the court before whom the 
 primary decision is made, or after excepting they may waive or 
 abandon the exception absolutely or to a modified extent. There is 
 no reason, therefore, why they may not mutually agree that excep- 
 tions which have been taken shall only be effectual to sustain an 
 appeal to the general term of the same court. This is what has been 
 done in effect in this case. We should not regard any less authentic 
 evidence of such an arrangement than a plain stipulation in writing; 
 but when we are furnished wnth such evidence, and especially where 
 the court from which the appeal is taken has sanctioned the agree- 
 ment by making it a part of the record, we ought to enforce it by 
 refusing to pass upon the questions which have thus formally been 
 waived. 
 
 The appeal must be dismissed w-ith costs, to be paid by the ap- 
 pellant.^^ 
 
 Appeal dismissed. 
 
 "Accord: Camden v. Edie, i H. Bl. 21 (1788); GaLbrcatll-y.--^CaIi,^ 
 Yeates (Pa.) 551 (1808) ; Cuncl e_\\ Dri pf^x. ^ P. & W. (Pa.) 291, 23 Am. Dec. 
 ^1 X^^j'') •^rif'-''"'-'^ ^ Hrufnn^ S VVntfs (P^ ^ 371 (1839); Commoiiwcolth 
 w7 Johnson, 6 Pa. St. i.^6 ( 1874) ; Giunm v. Fowler, 2 El. & El. 890 (i85b) ; 
 Cole V. Thayer, 25 Mich. 212 (1872) ; Jones v. Victoria Grading Dock Co., 
 36 L. T. (N. S.) 347 (1877) ; Carroll v. Locke, 58 N. H. 163 (1877) ; New v. 
 Fisher, 11 Daly (N. Y.) 308 (1882) ; Oliver v. Blair, 66 Cal. XVIII, 5 Pac. 
 917 (1885) ; Saling v. German Savings Bank, 15 Daly (N. Y.) 527, 8 N. Y. S. 
 469, 28 N. Y. St. 880 (1S90) ; Royno y. Lorentz, ?,2 Pa. Super. Ct. 162 (1 906) ; 
 Jones V. Spokane Land Co., 44 Wash. 146, 87 Pac. 65 (1906) ; V. S. Consol. 
 Raisin Co. v. Chaddock, 173 Fed. 577 (1909); Cramt> & Co. v. Boycrtow n 
 Burial Casket Co., 241 Pa 15, S8 Atl. 69 (1913) ; Palmer v. Lavers,~2iS Mass. 
 286, 105 A', ii;. 1000 (1914). Contra: Sanders v. White, 22 Ga. 103 (1857); 
 State V. Judge of fifth Dist. Ct., 14 La. Ann. 323 (1859) ; Falkner v. Hunt, 
 68 N. Car. 475 (1873) ; Fahs v. Darling, 82 111. 142 (1876) ; Brown v. Galesburg 
 Pressed Brick &c. Co., 132 111. 648, 24 N. E. 522 (1890). A release of errors, 
 or agreement not to take an appeal given for value, after judgment will be 
 enforced. Co. Litt. 289; Van Houten v. Ellison, 2 N. J. L. 235 (1807) ; Cotton 
 V. IVilson, Minor (Ala.) 118 (1823) ; Millar v. Farrar, 2 Blackf. (Ind.) 219 
 (1829); March v. Talbott, I Dana (Ky.) 443 (1833); Barnes v. Moody, 
 6 Miss. (5 How.) 636, 37 Am. Dec. 172 (1841) ; Wood v. Goss, 21 111. 604 
 (1859) ; Martin v. Hawkins, 20 Ark. 150 (1859) ; Uls hafer v. Stewar t. 71 Pa. 
 St. 170 (1872) ; Ogdenshurg R. Co. v. Vermont RTCo., 63 N. Y. 176 (1875T; 
 In re Hull Bank, 13 Ch. Div. 261 (1879); Mackey v. Daniel, 59 Md. 484 
 (1882); Powell V. Turner, 139 Mass. 97, 28 N. E. 453 (1885); Elwell v. 
 Fosdick, 134 U. S. 500, 33 L. ed. 998 C1890) ; Johmon v. H alley, 8 Tex. Civ. 
 App. 137, 27 S. W. 750 (1894) ; Southern R. Co. v. Glenn, 98 Va. 309, 36 S. E. 
 395 (1900) ; Keoughan v. Equitable Oil Co., 116 La. yjz, 4^ So. 88 (1906).
 
 RICHESON v. RYAN 827 
 
 RICHESON V. RYAN 
 
 Supreme Court of Illinois, 1852 
 14 ///. 74 
 
 Richeson brought this cause to tliis court by writ of error. Ryan 
 filed his plea of release of errors, stating that Richeson had volun- 
 tarily paid the judgment against him, to which plea a demurrer was 
 interposed. 
 
 Treat, C. J.: Ryan recovered a judgment against Richeson. 
 The latter paid the judgment before an execution issued, and then 
 sued out a writ of error to reverse it. Did the payment operate as 
 a release of errors? If the judgment had been collected by execu- 
 tion, there would not be a doubt of the right of Richeson to prosecute 
 the v/rit of error. ^* A payment made under such circumstances 
 would be compulsory, and would not preclude him from afterv.^ards 
 reversing the judgnient, if erroneous, and then maintaining an 
 action to recover back the amount paid. The payment in question 
 must equally be considered as m^ade under legal compulsion. The 
 judgment fixed the liability of Richeson, and he could only avoid 
 payment by procuring its reversal. He Was not bound to wait until 
 payment sliould be demanded by the sheriff. He was at liberty to 
 pay off the judgment at once, and thereby prevent the accumulation 
 of interest and costs. By so doing, he did not waive his right to 
 remove the record into this court, for the purpose of having the 
 validity of the proceedings tested and determined. The pleas are 
 bad, and the demurrer must be sustained. ^^ 
 
 Demurrer sustained. 
 
 "Accord: Grim v. Semple, 39 Iowa 570 (1874) ; Meade v. Kansas City St. 
 J. R. Co., 45 Iowa 659 (1877) ; Verges v. Gonzales, 33 La. 410 (1881) ; Hixon 
 V. Oneida Co., 82 Wis. 515, 52 N. W. 445 (1892) ; Kcnney v. Parks, 120 Cal. 
 22, 52 Pac. 40 (1898) ; Armstrong v. Douglas Park Building Assn., 176 111. 298, 
 52 N. E. 836 (1898) ; Empire H. Co. v. Young, 27 Misc. 226, 57 N. Y. S. 753 
 (1899) ; Union Tr. Co. v. Bell, 164 Ind. 701, 73 N. E. 1134 (1905) ; Dodds v. 
 Grcgson, 35 W^ash. 402, yy Pac. 791 ( 1904) ; Feight v. Wyandt, 79 Kans. 309, 
 99 Pr.c. 611 (1909) ; Buckeye Refining Co. v. Kelly, 163 Cal. 8, 124 Pac. 536 
 (1912) ; Lott \. Davis, 262 111. 148, 104 N. E. 199 (1914). So "Payment under 
 a judgment which is made without the knowledge or approval of the party- 
 condemned is not an acquiescence by him in such judgment." Anderson v. 
 New Orleans Ry. &■ Light Co., 133 La. 896, 63 So. 395 (1913). 
 
 ^^Accord: Dyett v. Pendleton, 8 Cow. (N. Y.) 326 (1826); Gordon v. 
 Cihhs, II Miss. (3 Sm. & M.) 473 (1844) ; Erzvin v. Dowry, 7 How. (U. S.) 
 172, 12 L. ed. 655 (1849) ; Peer v. Cookerow, 14 N. J. Eq. 361 (1862) ; Hill 
 V. Starkweather, 30 Ind. 434 (1868); Belton v. Smith, 45 Ind. 291 (1873); 
 IVatson V. Kane, 31 Mich. 61 (1875) ; Jersey City v. Riker, 38 N. J. L. 225, 20 
 Am. Rep. 386 (1876) ; Hatch v. Jacohson, 64 111. 584 (1880) ; Page v. People, 
 99 111. 418 (1881) ; Hayes v. Noiirsc, 107 N. Y. 577, 14 N. E. 508, i Am. St. 
 891 (1887) ; Burrozcs v. Mickler, 22 Fla. 572, i Am. St. 217 (1886) ; Chapman 
 V. Sutton, 68 Wis. 657, 32 N. W. 683 (1887) ; Fernuson v. Millender, 32 W. Va. 
 30, 9 S. E. 38 (1889) ; Richmond & D. R Co. v. Buice, 88 Ga. 180, 14 S. E. 205
 
 828 ATPKAL AM) KKKOR 
 
 SECTION 2. PARTIES 
 
 BLACK r. KIRGAN 
 
 Supreme Court of New Jersey, 1835 
 
 IS A^ /. L. 45 
 
 A writ of error had been issued in this case, directed to the com- 
 mon pleas of tlie county of BurHngton. On the return of the 
 writ, H. W. Green, for tlie defendant in error, moved to quash the 
 writ. 
 
 I — Because the writ is defective. It says, "to the great dam- 
 age of John Whitakcr," \vithout showing in what right or character, 
 he makes himself plaintiff in error. 
 
 II — Because admitting W'hitaker to be a judgment creditor of 
 Black, the defendant below (as by his assignment of errors he rep- 
 resents himself to be), yet he is not, as such, entitled to sue out this 
 writ. 
 
 Ford, J. : This writ of error, on a judgment of David Kirgan 
 against John Black docs not conclude to the damage of John Black, 
 nor is it sued by him, but to the great damage of John Whitaker. 
 
 Xo person can have a writ of error, on a judgment, unless, ac- 
 cording to the common law, "he be a party or privy to the record, 
 or be injured by the judgment," Bac. Ah. Error, B. The statute, 
 which is merely an affirmance of the common law, is to the same 
 
 (1891) ; Pittsburgh F. IV. Ry. Co. v. Martin, S3 Ohio St. 3S6, 41 N. E. 6qo 
 (1895); Springer v. Merchants National Bank, 67 111. App. 317 (1896); 
 MacEvitt V. Maass, 64 App. Div. 382, 72 N. Y. S. 158 (1901) ; Eastland v. 
 Armstrong, 117 Wis. 394, 94 N. W. 301 (1903) ; Ogden v. Chehalis Co., 41 
 Wash. 45, 82 Pac. 1095 (1905) ; Nashville C. & St. L. R. Co. v. Bean, 33 Ky. 
 L. R. 114, 109 S. W. 323 (1908) ; Lindenborn v. Vogel. 131 App. Div. 75, "5 
 N. Y. S. 962 (1909) ; Eilers Piano House v. Pick, 58 Ore. 54, 113 Pac. 54 
 (1911) ; Patterson v. Keeney, 165 Cal. 465, 132 Pac. 1043, Ann. Cas. 1914D, 
 232n (1913); Hoogendorn v. Daniel, 202 Fed. 431 (1913) ; Round v. Land 
 & P. Co., 92 Kans. 894, 142 Pac. 292 (1914)- Contra: David v. East Baton 
 Rouge, 27 La. Ann. 230 (1875) ; PozL'ell v. Ilernsheim, 37 La. Ann. 581 (1885) ; 
 Sager v. Moy, 15 R. I. S28. 9 Atl. 847 (1887) ; Aldrcd v. Romero, 5 N. Mex. 
 522, 25 Pac. 788 (1891) ; Hintragcr v. Mahoney, 78 Iowa 537, 43 N. W. 522, 
 6 L. R. A. 50 (1889) ; Drew v. His Creditors, 49 La. Ann. 1641, 22 So. 956 
 (1897) ; York V. Barnes, 58 Kans. 478. 49 Pac. 596 (1897) ; Rolette v. Pierce 
 Co., 8 N. Dak. 613. 80 N. W. 804 (1899) ; In re Black's Estate, 32 Mont. 51, 79 
 Pac. =;;4 ("1005) ; Signor v. Clark, 13 N. Dak. 35. 99 N. W. 68 (1904). 
 
 "\\'hen it is shown that the litigation or controversy has been ended or 
 settled, or in some manner disposed of so far as the parties are concerned, or 
 has ceased to be between parties having adverse interests, the appeal will be 
 dismissed as presenting onlv a moot question." Princeton Coal Co. v. Gilmorc, 
 170 Ind. 366, 83 N. E. 500 (1907). Accord: Stone v. Davis, 14 Mass. 360 
 (1817); Garner v. Preuitt, 32 Ala. 13 (1858); Allegheny Bank's Appeal, 
 48 Pa. .Str^28 (^^ 6^) ; Little v. Bowers, 134 U. S. 547, 33 L. ed. loi^T (1889) ; 
 Cock V. Palmer, 19 Abb. Pr. (N. Y.) 372, 24 N. Y. Super. Ct. 658 (1863) ; 
 Plogstart v. Rothenbncher, 37 Mo. 452 (1866); Bank of Martinez v. Jahn, 
 104 Cal. 238, 38 Pac. 41 (1894) ; Joiida v. Kaplan, 84 N. Y. Supp. 863 (1903) ; 
 Shannon v. Mower, 186 Ala. 472, 65 So. 338 (i9U)- .
 
 BLACK V. KIRGAN 829 
 
 effect: "any part}^ or his legal representative, or other person who 
 may be damnified or injured by a judgment, may sue forth a writ 
 of error." Rev. Laws, 400, section 2. Mr. Whitaker does not pre- 
 tend that he is a party or the legal representative of one, or a privy 
 to the record, but says he is injured, damnified and aggrieved by the 
 judgment, as a creditor of John Black. How he is such creditor, is 
 not stated in the body of this writ, but it is shown collaterally ; he 
 has an execution levied on the property of John Black; but David 
 Kirgan has a previous one, which Mr, Whitaker wishes to reverse 
 and remove out of the way, so as to gain a preference for his own, 
 and he alleges that the prior judgment injures and damnifies him. 
 
 Now this judgment can be no injury, in the legal sense of the 
 word, to Mr. Whitaker, whether it be just, fraudulent or irregular. 
 If a just judgment, obtained bona fide by one creditor, could be 
 a legal injury to another, no creditor could ever have a just judgment, 
 for it would be an injury to somebody. If Kirgan's be an injury 
 to Whitaker, then Whitaker's must be an injury to those creditors 
 who are subsequent to him, and it would follow that no creditor 
 could have a just judgment, without committing an injury in law. 
 The proposition is therefore utterly fallacious. 
 
 If it be a fraudulent judgment, it is void as against creditors by 
 the statute of frauds, and a judgment already void, can be no in- 
 jury to them. But it can not be avoided on a writ of error, where 
 the court must judge by the record alone, and can not look at any- 
 thing behind it. This is not the mode of resisting a fraudulent judg- 
 ment. The merits must be brought before the court, by affidavits, 
 on a motion to set it aside, as in the case of Barrows v. Bispl:ai:i, 
 6 Hals. (N. J.) no; or Reed v. Bainbridge, i South. (N. J.) 351 ; or 
 Matthetvs v. IVanie, 6 Hals. ( N. J. ) 295, or by treating it as a nullity. 
 Fraud can not be alleged in a writ of error, unless it appear on the 
 face of the record itself. But supposing it to be fraudulent, as 
 against creditors, it is a nullity, and can do them no harm. 
 
 So an irregular judgment against Black, can be no injury or 
 damage to Whitaker, who is a third person. Suppose that there has 
 been some omission, misprision, mistake or slip of the pen, in the 
 form of entering it up, they do not affect the merits and justice of 
 the judgment; therefore, they can not injure or damnify Mr. Whit- 
 aker. An amendment or release would cure them all. They might 
 be to the injury of Black the defendant; but exactly the contrary 
 as respects Mr. Whitaker. If he could take advantage of them, so 
 as to put Kirgan's judgment aside, and gain a preference for his 
 own, these irregularities would be to Mr. Whitaker's benefit instead 
 of injury; the conclusion in the writ, that they are to his damage, 
 would be an untruth, on the face of it. 
 
 The statute has made no change in the common law respecting 
 who may have a writ of error. There is privity of person between 
 a deceased party and his legal representative. So an heir, remain- 
 derman, reversioner, and in some cases, terre-tenants, are privies in 
 estate ; the execution may go against their lands, and damnify them ; 
 therefore they may have a writ of error; but Kirgan, by virtue of 
 his judgment, can not have an execution against Whitaker or his
 
 S30 ArrnAL and kkror 
 
 property. All he fears is, that it may prevent his g-etting Black's 
 property. The injury is not to his person or his estate. It is only 
 to liis hopes. If this were allowahle, then children might have a 
 writ of error to reverse a judgment against their father; the town- 
 ship to reverse one against a pauper; a sheriff to reverse a judg- 
 ment, after he had been amerced for neglecting to bring the money 
 into court, on an execution ; or bail, after they had been fixed, to 
 reverse the judgment against their principal. If one creditor might 
 bring a writ of error to reverse the judgment of another, so might 
 every one, and there might be as many writs of error as there were 
 creditors. But a man who is neither party nor privy in person or 
 estate, can not be damnified by the judgment, and therefore shall not 
 have a writ of error. This is the settled rule as stated in Com. Dig. 
 Pleader, 3 B. 9, and therefore, this writ of error must be quashed. ^ 
 
 HoRNBLOWER, C. J. :^^ Sergeant Williams, in 2 Saund. 46, n. 6, 
 says: "No person can bring a writ of error, unless he is a party 
 or privy to the record, or is prejudiced by the judgment, the rule 
 being, that a writ of error can only be brought by him who would 
 have had the thing, if the erroneous judgment had not been given." 
 The expression used by Sergeant Williams, and indeed to be found 
 in all books — "or persons prejudiced by the judgment," is as com- 
 prehensive as the terms, "or other person damnified or aggrieved 
 by the judgment," used in our statute. Yet, by the "person preju- 
 diced by the judgment," is not intended any person who may hap- 
 pen incidentally to be prejudiced by it; but the person who would 
 have had the thing, but for the erroneous judgment. Now what 
 was the thing in dispute in the action between Kirgan and Black? 
 Not the lands nor the goods and chattels of Black. They are the 
 things which Whitaker is pursuing; but the judgment did not decide 
 the \itle to them. The thing in question, was a certain debt due 
 from Black to Kirgan. Now if Whitaker would have had that debt, 
 but for this judgment, then he may have error. 
 
 It is unnecessary, however, to pursue this subject, for the 
 plaintiff's counsel admits, that if our statute has not introduced a 
 new rule, as to writs of error, he must fail; and I am clearly of 
 opinion that it has not. In principle and practice, the doctrine con- 
 tended for, would be extremely iniquitous. An erroneous and even 
 a fraudulent judgment creditor, might defeat an honest plaintifif, 
 who had established his debt, at the end of a tedious and expensive 
 law suit. 
 
 I will only add, that no writ of error can in any case be sued 
 by a third person, while the original parties to the record are alive, 
 except such writ is expressly given by statute; as in the case of a 
 reversioner or remainderman, after a recovery against the tenant 
 for life, by force of 9 R. 2 ch. 3, 2 Saund. 46, n. 6. Marquis of Win- 
 chester's Case, 3 Coke 4 a. ; 5 Mod. 397. 
 
 Where the writ of error is not prosecuted by the party on the 
 record, but by the heir or other representative, or person entitled to 
 it, by privity of estate or interest, the character in which he sues. 
 
 "A portion of the opinion is omitted.
 
 MASTERSOX 7'. IIERXDON 83 1 
 
 must appear on the writ. So are the precedents, and such is the 
 reason of the thing. Though, if heir, he need not in all cases, show, 
 how he is heir. William v. Gwyn, 2 Saund. 46, and in n. 6. 
 
 Ryerson, J., concurred. 
 
 Writ quashed.^'' 
 
 MASTERSON v. HERNDON 
 
 Supreme Court of United States, 1870 
 
 77 U. S. 416 
 
 Appeal from the Circuit Court for the Western District of 
 Texas, the case being thus : 
 
 Howard and others filed in the court below a bill of peace and 
 for conveyance of pretended title to a tract of land described, 
 against S. A. Maverick and J. H. Herndon, and on that bill the 
 court decreed that the complainant "have and recover of the said S. 
 A. Maverick and the said J. H. Herndon the tract of land in the bill 
 described, and tliat their title to the same is hereby decreed to be 
 free from all clouds cast thereon by the said defendants," 
 
 ^'Accord: Marquis of Winchester's Case, 3 Coke I (15S2) ; Williarn v. 
 Gzi.'yn, 2 Saunders 46, note 6 (1681) ; Anonymous, 5 Mod. 397 (1699) ; 
 Richardson v. Richardson, 2 Root (Conn.) 219 (1795) ; Shirley v. Lunenbiirgh, 
 II Mass. 379 (1814) ; Szuan v. Picquet, 3 Pick. (Alass.) 443 (i825) ; Bryant v. 
 Allen, 6 N. H. 116 (1833); Steel V Bridcnhach, 7 Watts & S. ( Pa.) 150 
 (1844) ; Elcan v. Lancasterian School, 2 P. & H. (Va.) .^3 (i8=;6) \ Mo rris v. 
 Garrison. 27 Pa. St. 226 (t8 :;6') ; Swackhamer v. Kline, 25 N. jT~lEq7^3 
 (1874) ; Raleigh v. Rogers, 25 N. J. Eq. 506 (1874) ; La-wlcss v. Reagan, 128 
 Mass. 592 (18S0) ; hi re Madras Irrigation & Canal Co., L. R. 23 Ch. Div. 
 248 (1883) ; In re Young, L. R. 30 Ch. Div. 421 (1885) ; United Tel. Co. v. 
 Bassano, L. R. 31 Ch. Div. 630 (1886) ; In re Securities Ins. Co., L. R. (1894) 
 2 Ch. 410; Poundstone v. Baldzvin, 145 Ind. 139, 44 N. E. 191 (1896) ; Winne 
 V. People, 177 111. 268, 52 N. E. 377 (1898) ; Gates Land Co. v. Olds, 112 Wis. 
 268, 87 N. W. ic88 (1901); Weise v. Chicago, 200 111. 339, 65 N. E. 648 
 (1902) ; The Milzvall, L. R. (1905) P. 155; People ex rel. v. O'Connell, 252 
 111. 304, 95 N. E. 1008 (1911) ; U'jrk'.'! F.stnfe, 50 Pp. .Suner Cf 6i/i jTnT-?y 
 People ex rel. v. Lozver, 254 111. 306, 98 N. E.' 557 (1Q12) ; Altoon aC ttyv. 
 Sihjrrr.inn. ^2. Pa. Snppr. C\ -^7^ (.tot^^ -.Hadfield V. Gushing, 35^7173067^6 
 Atl_. 897 (1913) ; Szfan v. Tapley, 216 Alass. 61, 102 N. E. 916 (1913) ; Pake v. 
 Leinkauf B. Co., 1S6 Ala. 307, 65 So. 139 (1914). 
 
 A successful party can not appeal from a judgment or decree wholly in 
 his favor. Bacon's Abridgment Error (K. 4) ; Holt on v. Ruggles, i Root 
 (Conn.) 318 (1791); Raymond V. Barker, 2 Root (Conn.) 370 (1796); 
 Launhlin v. Pe ebles. T P, ^- W. f Pp ). 114 (1829) ; Watkins v. Martin, 24 Ark. 
 14, 81 Am. Dec. 59 (1862) ; Havden v. Stone, 112 Mass. 346 (1873) ; Green v. 
 Blackzvell, 32 N. J. Eq. 768 (1880) ; Hooper v. Beecher, 109 N. Y. 609, 15 N. 
 E. 742, 2 Silvemail Ct. App. i (1888); Northrop v. Jennison, 12 Colo. App. 
 523, 56 Pac. 187 (1899) ; Sadlier v. Nezu York, 185 N. Y. 408, 78 N. E. 272 
 (1906) ; Rogers v. Penobscot Mining Co., 154 Fed. 606 (1907) ; Midland V. R. 
 Co. V. Ftilgham, 181 Fed. 91 (1910). Otherwise where he does not get all the 
 relief sought. Ingalls v. Lord, I Cow. (N. Y.) 240 (1823) ; Parker v. Nezv- 
 land, I Hill (N. Y.) 87 (1841) ; Seymour v. Belden, 28 Conn. 443 (1859); 
 Hartman v. Belleville & O. R. Co., 64 111. 24 (1872) ; Kingsley v. Delano, 172 
 Mass. 37, SI N. E. 186 (1898) ; Blanchard v. Neill, 83 N. J. Eq. 446, 91 Atl. 811 
 (1914)-
 
 8^";j APl'l.Al. AND l-.KKOR 
 
 l-'roni this dcoroc lU'iiulon ;ipi)cali.'(l. In ret^ard to ]\Iavcrick, 
 tlio petition, whicli was sigiKHl Iiy counsel only, aiul was not sworn 
 to, was this: 
 
 "Your petitioner says that his co-defendant, Maverick, refuses 
 to prosecute this appeal with him." 
 
 Mr. P. Phillips, for the appellees, now objected that there was 
 no valid appeal in the case, because the decree beinj:;' a joint decree 
 aii^ainst Ilcrndon and !Maverick, llcrndon alone had asked for an 
 appeal. 
 
 I\Ir. W. W. Boyce, contra. 
 
 Mr. Justice Miller, after stating that a careful examination of 
 the record satisfied the court that the decree was a joint decree, 
 and tliat the appeal was clearly taken by Herndon alone, delivered 
 its opinion as follows : 
 
 It is the established doctrine of this court that in cases of law, 
 where the judgment is joint, all the parties against whom it is ren- 
 dered must join in the w'rit of error; and in chancery cases, all the 
 parties against whom a joint decree is rendered must join in the 
 appeal, or they will be dismissed. There are two reasons for this: 
 I. That the successful party may be at liberty to proceed in the en- 
 forcement of his judgment or decree against the parties who do not 
 desire to have it reviewed. 2. That the appellate tribunal shall not 
 be required to decide a, second or third time the same question on 
 the same record. ^^ 
 
 In the case of IVilliauis v. Bank of the United States,^^ the court 
 says that where one of the parties refuses to join in a writ of error, 
 it is worthy of consideration whether the other may not have rem- 
 edy by summons and severance ; and in the case of Todd v. Daniel,^° 
 it is said distinctly that such is the proper course. This remedy is 
 one Vihich has fallen into disuse in modern practice, and is unfa- 
 miliar to the profession; but it was, and we find from an examina- 
 tion of the books, allowed generally, when more than one person was 
 interested jointly in a cause of action or other proceeding, and one 
 of them refused to participate in the legal assertion of the joint 
 rights involved in the matter. In such case the other party issued a 
 writ of summons, by which the one who refused to proceed was 
 brought before the court, and if he still refused, an order or judg- 
 ment of severance \vas made by the court, whereby the party who 
 wished to do so could sue alone. One of the effects of this judgment 
 of severance w^as to bar the party who refused to proceed, from 
 prosecuting the same right in another action, as the defendant could 
 not be harassed by two separate actions on a joint obligation, or on 
 account of the same cause of action, it being joint in its nature.^^ 
 
 "Citing Williams v. Bank of United Slates, il Wheat. (U. S.) 414 
 (1826); Owings v. Kincannon, 7 Pet. (U. S.) 399, 8 L. ed. 727 (1833); 
 I'.'ilson V. The Life & Fire Ins. Co. of N. Y., 12 Pet. (U. S.) 140 (1838). 
 
 "11 Wheat. (U. S.) 414- 
 
 ^James Todd, Thomas Warren, ct al. v. Chas. Daniel, 16 Pet. (U. S.) 521 
 (1842). 
 
 *'Citinf( Brooke's Abridcjment 238, tit. "Summons and Severance"; 2 
 Rollc's Abridgment, same title 488; Archbold's Civil Pleadings 54; Tidd's
 
 MASTERSON V. HERNDON 833 
 
 This remedy was applied to cases of writs of error when one of the 
 plaintiffs refused to join in assigning errors, and in principle is no 
 doubt as applicable to cases where there is a refusal to join in ob- 
 taining a writ of error or in an appeal. The appellant in this case 
 seems to have been conscious that something of the kind was neces- 
 sary, for it is alleged in his petition to the circuit court for an appeal, 
 that Maverick refused to prosecute the appeal witli him. 
 
 We do not attach importance to the technical mode of proceed- 
 ing called summons and serverance. We should have held this ap- 
 peal good if it had appeared in any way by the record that Maverick 
 had been notified in writing to appear, and that he had failed to 
 appear, or, if appearing, had refused to join.-^ But the mere allega- 
 tion of his refusal, in the petition of appellant, does not prove this. 
 We think there should be a written notice and due service, or the 
 record should show his appearance and refusal, and that the court 
 on that ground granted an appeal to the party who prayed for it, as 
 to his own interest. Such a proceeding would remove the objec- 
 tions made to permitting one to appeal without joining the other, 
 that is, it would enable the court below to execute its decree so far 
 as it could be executed on the party who refused to join, and it 
 would estop that party from bringing another appeal for the same 
 matter. The latter point is one to which this court has always at- 
 tached much importance, and it has strictly adhered to the rule un- 
 der which this case must be dismissed, and also to the general prop- 
 osition that no decree can be appealed from which is not final in the 
 sense of disposing of the whole matter in controversy, so far as it 
 
 Practice 129, 1136, Ii6g See note to Detroit v. Guaranty Trust Co. of New 
 York, 93 C. C. A. 604, 168 Fed. 608 (1909). 
 
 Cannon v. Abbot, i Lev. 210 (1667), trespass against three. One pleads 
 not guilty and thereupon issue and verdict for the defendant. Against the 
 other two judgment by default and a writ of inquiiy of damages. The two 
 bring a writ of error. And although the writ of error be brought by two with- 
 out the third, 'twas argued to be good because he can not be joined, for he 
 being acquitted, and the judgment for him, he can not say that the judgment is 
 to his damage ; and so held the whole court, except Twysden, who held, that 
 the writ of error ought to have been brought by all three. Accord : Parker v. 
 Lawrence, Hob. 70 (1613) ; Coe v. Turner, 5 Conn. 86 (1823) ; Sliaw v. Blair, 
 58 Mass. (4 Cush.) 97 (1849); Jaqneth v. Jackson, 17 Wend. (N. Y.) 434 
 (1837); Outcalt V. Collier, 8 Okla. 473, 58 Pac. 642 (1899); Hubbard v. 
 Burnet L. L. Co., 51 Ind. App. 97, 98 N. E. loii (1912). Contra: Barnzvell v. 
 Graunt, Style 190 (1649). See where judgment was against all, Walter v. 
 Stokoe, I Ld. Raym. 71 (1694) ; Fotterall v. Floyd, 6 Serg. & R. (Pa.) 315 
 (1825). ■ 
 
 ^^In Doty v. Strong, i Finn. (Wis.) 165 (1842), it is said: "The more 
 easy and legitimate practice would be to enter a rule against those persons 
 named in the writ of error as plaintiffs and not appearing, either to appear and 
 assign error or submit to be severed." Accord ■. Fotteral l w. Floyd, 6 Serg &_R. 
 (Pa.) 315 (1820) ; Sheppard v. Fenton, 9 N. J. L. 8 C1827) ; Fagan vHOong, 
 30 Mo. 222 (i860). And see Cambria Trust Co. v. Union Trust Co., 154 Ind. 
 291, 55 N. E. 745, 56 N. E. 665, 48 L. R. A. 41 (1899) ; Englcken v. Webber, 
 47 Iowa 558 (1877) ; Thompson v. Valarino, 2 How. Pr. (^f. Y.) 259 (1846) ; 
 Gerts V. Milwaukee R. Co., 153 Wis. 475, 140 N. W. 312 (1913). In Pharo 
 V. Parker, 21 N. J. L. 332 (1S48), where one of two joint debtors was sum- 
 moned and appeared and made defense for both, he was permitted to appeal 
 for both, it not appearing that his co-defendant refused to join in the appeal. 
 
 53 — Civ. Proc.
 
 S^^4 AITKAL AND KKKOU 
 
 has been possible to adhere to it without hazarding the substantial 
 rights of parties interested. AVe dismiss this appeal with the less re- 
 gret, as there is still time to obtain another on i)roceedings not liable 
 to tlie objection taken in this.-^ 
 Appeal dismissed. 
 
 FRENXH 7-. PETERS 
 
 Supreme Judicial Court of Massachusetts, 1901 
 177 Mass. 568" 
 
 This suit in equity was begun on June 12, 1895, by a writ in 
 which Harriet C. Patch was joined as defendant with Peters, ad- 
 ministrator of the estate of Peaslee, and with the Second National 
 Bank of Haverhill. The relief sought was in substance to compel 
 
 =^ Accord: Ruddock's Case, 6 Coke 25 (1598) ; Andrews v. Lord Cromwell, 
 Cro. Eliz. 891 (1600) ; Hackct v. Heme, 3 Mod. 134. Carth. 7 (1684) ; IValtcr 
 V. Stokoe, I Ld. Raym. 71 (1694); Ginger v. Cowpcr, 2 Ld. Raym. 1403 
 (1724) ; Breii'cr v. Turner, I Strange 233 (1720) ; Vavasor v. Faux, 1 Wils. 
 88 (1745) ; Andrews v. Bosworth, 3 Alass. 223 (1807) ; Phelps v. Ellszvorth, 
 3 Dav (Conn.) 144 (1808); Bradshaw v. Callaghan, 8 Johns. (N. Y.) 558 
 (1811'); Gallagher v. Jackson, I S erg. & R. (Pa.) 492 (1815); Shirley v. 
 Lutiet'.burgh, II Mass. 579 (i8i4yyTo»cra7rv. FToyd, 6 Serg. & R. (P a.) 315 
 (1820) ; Caller v. Brittain, Minor (ATa7r27 (1^21); Emerick v. Armstrong, 
 I Ohio 513 (1824) ; Shcppard v. Fenton, 9 N. J. L. 8 (1827) ; Johnson v. John- 
 son, I Dana (Ky.) 364 (1833); Cay v. Richardson, 35 Mass. 417 (1836); 
 U'hitcker v. Parker, 2 Plarr. (Del.) 413 (1838); Doty v. Strong, i Pinn. 
 (Wis.) 165 (1842) ; Miller V. Heard, 6 Ark. 73 (1845) ; Savage v. Walsh, 24 
 Ala. 293 (1854) ; Moore v. McGitire, 26 Ala. 461 (1855) ; Smctters v. Raincy. 
 14 Ohio St. 287 (1863) ; Cumberland Coal & Iron Co. v. Jeffries, 21 Md. 375 
 (1863) ; VanBuskirk v. Hohokcn & N. Y. R. Co., 31 N. J. L. 367 (1865) ; 
 Samidcrs v. Saunders, 49 ]\Iiss. 327 (1873) ; Knight v. Weistsopf, 20 Fla. 140 
 (1883) ; Mclnixre v. 5"/;o//v, 139 HI- I7i, 29 N. E. 43 (1891) ; Hardee v. ^Ft7- 
 son, 146 U. S. 179, 36 L. ed. 933 (1892) ; Sipperlcy v. 5";«i7/!, 155 U. S. 86, 39 
 L. ed. 79 (1894) ; Beardslcy v. Arkansas R. Co., 158 U. S. 123, 39 L. ed. 919 
 (1895) ; Richardson v. Greenwood Twp., 6 Kans. App. 521, 50 Pac. 941 (1897) ; 
 Gcncarelle v. New York, N. H. & H. R. Co., 21 R. I. 216, 44 Atl. 174 (1899) ; 
 Slater v. Hamacher, 15 App. D. C. 294 (1899) ; McCallum v. Culpepper, 41 Fla. 
 107, 26 So. 187 (1899); Sellers v. Smith, 143 Ala. 566, 39 So. 356 (1904); 
 Touhey v. McCagg, 134 III. App. 56 (1907) ; Taylor v. Lessnitzer, 31 App. D. C. 
 92 (1908); Provident IJfe & Trust Co. v. Camden R. Co., 177 Fed. 854 
 (1910) ; Mills V. Tecl, 244 HI. 39, 9i N. E. 83 (1910) ; P. IV. & B. R. Co. v. 
 Stumpo, 112 Md. 571, 77 Atl. 266 (1910) ; Ihbs v. Archer, 185 Fed. 37 (1911) ; 
 Burns v. Toney, 27 Okla. 728, 117 Pac. 209 (1911) ; Continental Ins. Co. v. 
 Gue, 51 Ind. App. 232, 98 N. E. 147 (1912) ; Appleby v. Dowden, 35 Okla. 707, 
 132 Pac. 349 (1913); Continental Savings Bank v. Corey Bros. Const. Co., 
 205 Fed. 282 (1913) ; West v. Johnson, 66 Fla. 4, 62 So. 913 (1913)- Contra: 
 Mattison v. Jones, 9 How. Pr. (N. Y.) 152 (1854) ; Girand v. Beach, 4 E. D. 
 Smith (X. Y.) 337 (1855) ; Home Savings Bank v. Traube, 6 Mo. App. 221 
 (1878); Turner v. Newell, 129 Ga. 89, 58 S. E. 657 (1907) ; Spokane Ranch 
 & Water Co. v. Beattv, 2,7 Mont. 342, 96 Pac. 727 (1908); Cummtngs v. 
 Reins Copper Co., 40 Mont. 599, 107 Pac. 904 (1910) ; Dickens v. Dickens, 
 174 Ala. 305, 56 So. 806 (1911) ; Electrical Accessories Co. v. Mittenthal, 146 
 App. Div. 647, 131 N. Y. S. 433 (1911)- , , , , 
 
 "The reporter's statement of facts is omitted and the facts as given are 
 taken from the opinion of the court, part of which is omitted. The decree 
 appealed from was affirmed.
 
 FRENCH V. PETERS 835 
 
 the payment to the plaintiff of a non-negotiable promissory note 
 given b}'- the defendant Patch to the intestate Peaslee in 1889, and 
 also of a deposit of his in the defendant bank, both the note and the 
 deposit book having been delivered to the plaintiff b}^ Peaslee in his 
 lifetime in consideration of services rendered to him and in pursu- 
 ance of a contract made by him. The suit was brought in equity be- 
 cause both the note and the deposit were transferred to the plaintiff 
 by one act of Peaslee and the plaintiff's right was denied by Peaslee's 
 administrator as well as by the defendant Patch and by the bank. 
 
 The case was referred to a master and while the hearings were 
 proceeding Plarriet C. Patch died and Arthur D. Patch and George 
 D. Whitten were appointed administrators of her estate, and were 
 such administrators when the counsel who had filed her answer 
 appeared at the hearing before the master and represented her 
 estate as counsel for her administrators. 
 
 The master found and reported that the deposit and the note 
 were the property of the plaintiff, that the note was a valid and 
 subsisting obligation against the estate of Harriet C. Patch, that 
 the complainant was entitled to a decree, that the defendant Peters 
 as administrator of Peaslee's estate should assign the deposit and 
 the note to the plaintiff, and that the bank should pay to the plain- 
 tiff the amount of the deposit, and that Harriet C. Patch should pay 
 to the plaintiff the am.ount of the note. 
 
 The defendant Peters alone filed objections and exceptions to 
 the master's report. These exceptions not being insisted upon the 
 master's report was confirmed by the court and a decree entered in 
 favor of the plaintiff, which decree among other things mot now 
 material required Peters as administrator of the estate of Peaslee 
 to assign the note of Patch to the plaintiff and required "the defend- 
 ants, Arthur D. Patch and George W. Whitten, administrators of 
 the estate of tlie defendant, Harriet C. Patch" to pay to the plain- 
 tiff the amount of that note and interest. 
 
 The decree was entered on March 9, 1900. On March 13, 1900, 
 Whitten as administrator of Patch moved the court to vacate the 
 decree. On April 6, 1900, he filed in the cause, in his own name 
 as administrator, an appeal to this court from the decree of March 
 9, 1900. On May 10, 1900, Arthur D. Patch as one of the adminis- 
 trators of Harriet C. Patch filed his written objection to the fur- 
 ther prosecution of the appeal of Whitten, alleging that he was a 
 coadministrator with Whitten and that the appeal was taken with- 
 out Patch's knov/ledge or consent. On the same day the plaintiff 
 moved that V/hitten's appeal be dismissed because he had no right 
 to appeal, because he did not file objections or exceptions to the 
 master's report, and because Arthur D. Patch was coadministrator 
 with Whitten and did not join in or authorize the appeal. 
 
 Barker, J. : The right of appeal to the full court is given by 
 our statutes to "any party aggrieved." Pub. Stat. ch. 151, par. 13, St. 
 1883, ch. 223, par. 2. The fact that such a party has filed no excep- 
 tions to the master's report, while it may preclude him from raising 
 certain questions in the appellate court, is not a reason for dismissing
 
 836 APPEAL AND ERROR 
 
 his appeal from a final decree. Upon such an appeal the question is 
 open to him whether upon the facts found \>y the master the decree 
 is justified hy the bill ami the record. 
 
 It is said to be the g;eneral rule that the apju-al of a party a^- 
 grieved may be dismissed because other parties with whom he is 
 joined as defendant have not appealed also. Ozviiigs v. Kincannon, 
 7 Pet, (U. S.) 399; Love joy v. Irclan, 17 ATd. 525; Mastcrson v. 
 Hcnidon, 10 Wall. (U. S.) 416. See also Clifton v. Sheldon, 23 
 How. (U. S.) 481, and 2 Encyc. of PL & Pr. 182, ct seq. But it is 
 otherwise when the codefendants have separate interests. Todd v. 
 Daniel, 16 Pet. (U. S.) 521; Brezvster v. Wakefield, 22 How. (U. 
 S.) 118; Day V. IJ^asliburn, 23 How. (U. S.) 309.-^ Under our own 
 practice, from a very early time, independent parties joined in an 
 action have had the right without joining their codefendants to have 
 reversed so much of an erroneous judgment as affected themselves. 
 Whiting v. Cochran, 9 Mass. 532; Shirley v. Limenhurg, ii Mass. 
 379, 384. The plaintiff in the present case does not contend that 
 Whitten's appeal must be dismissed because the bank and Peaslee's 
 administrator have not joined in the appeal. The only ground of dis- 
 missal urged is the nonjoinder of Patch who is Whitten's coadmin- 
 istrator. 
 
 The doctrine of the common law is that a suit in favor of the 
 estate of a person deceased must be brought in the name of all living 
 
 '^Lancaster v. Keylcigh, Cro. Car. 300 (1633). Though hail may have a 
 writ of error, yet one writ of error lyeth not jointly for tlie principal and 
 the bail, because there are several judgments given against them; and the 
 damages against one is not against tlic other; wherefore they may not join 
 in a writ of error no more than tenant for Hfe and he in reversion; or the 
 tenant and vouchee may join. Accord: Bushell v. Yallcr, Cro. Car. 408 
 (1635) ; Smith v. James, Cro. Car. 575 (1639) ; Sandelozv v. Dcvcrton, Cro. 
 Tac. 384 (1615); Stiihbs v. Flozvcr, i Bulst. 125 (1609); Anon., Litt. 93 
 (1628) ; Athcrton v. Hole, Lev. 137 (1664). See Henry v. IVhitchurst, 66 Fla. 
 567, 64 So. 22,Z (1914)- It has been held that separate claimants to a fund 
 can not prosecute a joint appeal. White's Appeal, 15 W. N. Cas. (Pa.) 313 
 (1884) ; AJ^msgti£,AM£al,_llQ_V^^,_3L.A^,_J^-^- 2>^7 (1885) ; Revnolds^v. 
 Eiynolds- LdunherJla^ i/iJPa. St. 437, 34 Atl. 791 (1896) ; Samson's Esj^aic. 
 22 Pa ^ S uper. Ct. 03 (1903); Cqmmonwealtji v. Union Snrety__&c. Co., 
 
 37 Pa. Super Ct_i67 (1908). But "contra: In re California Mutual LifPlns. 
 rdTTSnTar 364, 22 Pac. 86g (1889) ; Kaehler v. Ilalpin, 59 Wis. 40, 17 N. \Y. 
 868 (1883) ; Frank v. Zeiglcr, 46 W. Va. 614, 2?, S. E. 761 (1899), holding 
 that all parties against whom a decree or judgment is rendered who are in- 
 terested in the main question decided and are aggrieved in the same way 
 by the same decree may prosecute a joint appeal. 
 
 Generally, if the interests of the parties against whom a decree is made 
 are separate and distinct or if there are separate judgments against them, 
 separate appeals may be taken. Holmes v. Henty, 4 CI. & F. 99 (1836) 148; 
 Todd v. Daniel, 6 Pet. (U. S.) 521, 10 L. ed. 1054 (1S42) ; Forgay v. Conrad, 
 6 How. (U. S.) 201, 12 L. ed. 404 (1848) ; Farrcll v. Patterson, 43 111. 52 
 C1867) ; Genet v. Davenport, 60 N. Y. 194 (1875) ; Milncr v. Meek, 95 U. S. 
 252, 24 L. ed. 4-14 (1877) ; Williams v. Western Union Telegraph Co., 93 N. Y. 
 162 (1883) ; Gilfillan v. McKee, 159 U. S. 303, 40 L. ed. 161 (1895) ; Hull v. 
 Bell, 54 Ohio St. 228, 43 N. E. 584 (1896) ; Jacksonville R. Co. v. Brought on, 
 
 38 Fla. 139, 20 So. 829 (1896) ; South Portland Land Co. v. Mnnger, 36 Ore. 
 457, .54 Pac. 815 (1900); Winters v. United States, 207 U. S. 564, 52 L. ed. 
 340 (1907) ; St. John v. Andretvs Inst., 192 N. Y. 382, 85 N. E. 143 (1908) ; 
 Copeland v. Dixie Lumber Co., 4 Ala. 230, 57 So. 124 (1911). 
 
 J
 
 FRENCH V. PETERS 837 
 
 executors or administrators, and that if either of them is unwilling 
 to have the suit prosecuted in his name, the one who has instituted 
 it may, upon a summons, have a judgment of servance and con- 
 tinue the suit in his own name alone. Hensole's Case, 9 Coke 36, b ; 
 Brooks V. Straod, i Salk. 3; Com. Dig. Abatement, E. 13; Pleader 
 2D. I, 3, 10. But when executors or administrators are joined as 
 defendants they may plead different pleas and that plea which is 
 most for the advantage of the testator or the intestate shall be 
 received. Elwell v. Quash, i Str. 20, citing Baldwin v. Church, 10 
 Mod. 323 ; Foster v. Jackson, Hob. 52 a, 61 ; App. v. Dreisbach, 2 
 Rawle, 287, 301 ; Ged dis v. I rvine, 5 Pa. St._5o8, 512. 
 
 In LjY02Ol-^j^ii^w^ I Watts_(P^ 161, the appeal of one of two 
 coadministrators, his associate dissenting from the appeal, was 
 quashed. The appellant had given no recognizance or bail as re- 
 quired by statute. The judgment appealed, from relieved the estate 
 and the administrators from all liability. The court in holding that 
 the appeal was rightly quashed say that when executors sever in 
 pleading the court will take that plea which is better for the estate 
 and that it clearly Avas best for the estate to have the judgment 
 stand. 
 
 When Harrfet C. Patch, the original defendant, died her estate 
 as such was not a party to the suit. When counsel representing that 
 estate took part in the hearing of the cause before the master as 
 counsel for the administrator, this taking part in the proceedings 
 was enough to make both administrators of the estate parties de- 
 fendant to the suit. Each administrator has since recognized that 
 he was such a party, Whitten by moving to vacate the decree and by 
 appealing from it, and Patch by moving that Whitten's appeal be 
 dismissed. The appeal of one administrator and the attempt of the 
 other to have the appeal dismissed was in effect a severance in 
 pleading, that is, in the conduct of the defense, by coadministrators 
 defendants in the same suit, and so allowable under the doctrine 
 stated, unless as in Lyon v. Allison it is apparent that it is better 
 for the estate to have the decree stand. But in the present case the 
 decree is against estate while in Lyon v. Allison the decree freed the 
 estate from all liability. Besides this the present decree orders both 
 the coadministrators by name to pay the plaintiff the amount of the 
 note and interest, thus imposing upon the appellant Whitten per- 
 sonally a liability to be proceeded against for contempt if he does 
 not comply with the decree. We are therefore of opinion that the 
 motion to dismiss the appeal should be overruled.^^ 
 
 ^^See also Frescohaldi v. Kinaston, 2 Str. 783 (1727) ; Portis v. Creagh, 
 4 Port. (Ala.) 332 (1837) ; Smith v. Smith, II N. H. 459 (1841) ; Harrington 
 V. Roberts, 7 Ga. 510 (1849) ; White v. Connecticut Gen. Life Ins. Co., 
 34 App. D. C. 460 (1910). In State ex rel. Kelly v. Justices of Moore County, 
 24 N. Car. 430 (1842), a mandamus issued against the justices of a county 
 to compel the levying of a tax and a majority of them appealed. The court 
 refused to dismiss the appeal because some refused to join in the appeal. 
 The case, said the court, was not an action prosecuted against several per- 
 sons, as individuals, but was against a body which acted only tlirough the 
 medium of a majority of its members.
 
 8^>S APl'EAL AND ERROR 
 
 KELLS V. NELSON-TENNY LUMBER CO. 
 Supreme Court of JMinnesota, 1S98 
 
 74 Minn. 8 
 
 Lucas Kells, as assignee of N. P. Clarke & Company, insolvents, 
 ofFcrcd at public auction certain pine lands belonging to the insol- 
 vent estate. There being no bids received, he negotiated a sale 
 tliereof for $36,500 to the Brainard Lumber Company, subject to 
 the approval of tlie court. Upon applying to the district court for 
 Stearns county for an order confirming the sale, certain creditors of 
 the insolvents filed a protest against the confirmation of such sale 
 on the ground that another bidder had made an offer of $38,000, and 
 asked for an order confirming a sale to the latter bidder. The court, 
 Baxter, J., confirmed the sale to tlie Brainard Lumber Company. 
 From the order of confirmation the Nelson-Tenney Lumber Com- 
 pany, a creditor of the insolvents, appealed. In the Supreme Court 
 a motion was made to dismiss the appeal. 
 
 Start, C. J- '■ The assignee herein entered into a written con- 
 tract with the Brainard Company, whereby he sold to it, subject to 
 confirmation by the court, certain pine land belonging to the trust 
 estate. He made a written report thereof, to which was attached a 
 copy of the contract, to the -court, which made an order that cred- 
 itors show cause why the sale should not be confirmed. The ap- 
 pellant appeared, and opposed the confirmation ; but the court made 
 its order confirming the sale, from which the appellant appealed, 
 serving notice thereof on the assignee, but not upon the purchaser. 
 This is a motion to dismiss the appeal, because the purchaser was 
 not made a party to the appeal. 
 
 G. S. 1894, par. 6134, provides that an appeal shall be made by 
 service of a notice in writing on the adverse party and the clerk of 
 court. While an appeal is the continuation of the Original action or 
 proceedings in another jurisdiction, yet it is analogous in many re- 
 spects to a writ of error, which is regarded as the beginning of a 
 new action; and this court will consider only questions between the 
 appellant and the parties upon whom the notice of appeal has been 
 served.-^ Therefore the notice of appeal must be served on each 
 adverse party as to whom it is sought to review, in this court, any 
 
 "The common-law practice is illustrated by State Bank of Illinois v. 
 Wilson, 8 III. 89 (1846). Treat, J.: "This writ of error is prosecuted against 
 three defendants, and the scire facias has been returned, served on one of 
 them only, and non est inventus as to two others. The plaintiffs have 
 obtained a rule on the defendant sei^ved to join in error, which rule he now 
 asks to have vacated. Before the plaintiffs are entitled to a rule for joinder 
 in error, they must bring all of the defendants into court, either by the 
 ser\-ice of a scire facias, or a publication against such as are nonresidents, 
 or can not be found. The cause must be heard as between all of the parties 
 to the v.rit of error. The motion must be granted, and the order entered 
 for a joinder in error will be vacated." See also Roberts v. Taylor, 4 Port. 
 (Ala.) 421 (1837)
 
 KELLS V. KELSO N-TENXY LBR. CO. 839 
 
 order or judgment, although he did PxOt appear in the proceeding or 
 action in the district court. Frost v. St. Paul B. & Inv. Co., 57 Minn. 
 325 ; Oszvald v. St. Paul G. Pub. Co., 60 Minn. 82 ; Lambert v- 
 Scandinavian- American Bank, 66 Minn. 185. It necessarily follows 
 that Avhere the order appealed from is indivisible, and must be 
 affirmed, reversed or modified as to all parties to the action or pro- 
 ceeding, the appeal must be dismissed if they are not all made par- 
 ties to the appeal. The order in this case is such an order. It can 
 not be reversed as to the assignee v/ithout reversing it as to the pur- 
 chaser ; and if the latter is an adverse party, within the meaning of 
 the statute, the appeal must be dismissed. 
 
 The adverse party, w^ithin the intent of the statute, means the 
 party v/hose interest in relation to the subject of the appeal is in 
 direct conflict with a reversal or modification of the order or judg- 
 ment appealed from. Tliompson v. Ellsworth, i Barb. Ch. (N. Y.) 
 624; S enter v. Castro, 38 Cal. 637; Williar.is v. Santa Clara, 66 Cal. 
 193. The subject matter of this appeal is the sale of the land 
 to the purchaser, the Brainard Lumber Company. When the district 
 court confirmed the sale, all of the conditions of the sale had been 
 com.plied with, and it became absolute. The appellant, a creditor, 
 seeks by this appeal a reversal of the order, whereby the sale would 
 be set aside, and the purchaser lose his bargain. Its interest is in 
 direct conflict with a reversal of the order, and therefore it is, as to 
 the creditor, an adverse party. Indeed, the purchaser is practically 
 the only adverse party, for the assignee represents all of the cred- 
 itors, including the appellant. He does not represent the purchaser. 
 Their relation is that of vendor and vendee, holding each other at 
 arm's length. 
 
 It may be suggested that the purchaser is not a party of record. 
 The parties to tlie record are not always necessary parties to the 
 appeal, nor are those who were not parties to the record, as orig- 
 inally made, to be overlooked in prosecuting an appeal. Elliott App. 
 Proc, section 153. It has accordingly been held that, on an appeal 
 from an order confirming a sale or denying a resale, the purchaser 
 is a necessary party. See Barnes v. Stoughton, 6 Hun (N. Y.) 254; 
 Sanders v. Wade (Ky.), 30 S. W. 656; Kitchell v. Irby, 42 Ala. 447. 
 The purchaser in this case was, however, a party to the proceeding 
 in which the order of confirmation v/as made. By entering into the 
 contract with the assignee for the purchase of the land subject to 
 the approval of the court, it submitted its interests to the decision of 
 the court, and became a party to the proceedings resulting in the 
 order. The purchaser is a necessary adverse party to an appeal from 
 such order.-* 
 
 Appeal dismissed. 
 
 ^'All parties adverse to appellants in the court below who are affected 
 by the judgment or decree must be made parties to the appeal. Summerlin 
 V. Reeves, 20 Tex. 85 (1867) ; Clark v. Knox, 65 Ala. 401 (1880) ; Hunderlock 
 V. Dundee Mortgage & Trust Co., 88 Ind. 139 (1882) ; IVilliams v. Sania 
 Clara Minincj As.m., 66 Cal. 193, 5 Pac. 8^ (1884) ; Cates v. Sparkman, 66 Tex. 
 155, 18 S. W. 446 (1886) ; Davis v. Mercantile Tr. Co., 152 U. S. 590, 38 L. ed. 
 563 (1894) ; Bozeman v. Cale, 139 Ind. 187, 35 N. E. 828 (1-894) ; Equitable
 
 S40 AIMMAL AND KKROR 
 
 SECTION 3. SUPERSEDEAS 
 
 KOUNTZI': r. OMAHA IKTri'.L CO. 
 
 Supreme Court of Umtkd States, 1882 
 
 107 U. S. 378" 
 
 Bradley, J.: By the coninion law a writ of error, williout any 
 security, was of itself a supersedeas of execution from the time of 
 its allowance or recognition by the court to which it was directed; 
 and even before, if the defendant in error had notice of it; or, in 
 the common pleas, from the time of its delivery to the clerk of the 
 errors of that court, whose business it was, amongst other things, 
 to prepare the returns, i Tidd's Pr. 530, 1145; Impey's Pr. C. P. 
 16; Petersd. Abr. tit. Error, I. (H. a.)- The presentation of the 
 writ issuing from the superior court stopped all further proceedings 
 except such as were incidental to a compliance with its command 
 to certify the record. But as writs of error came to be sued out 
 for the purpose of delay, various acts of parliament were passed, 
 requiring security in certain cases, in order that the writ might 
 operate as a supersedeas. First, without referring to a statute in 
 the time of Elizabeth, the statute of 3 James I., ch. 8, declared 
 that no execution should be stayed or delayed, upon or by any writ 
 of error, or supersedeas thereon, for the reversing of any judgment 
 in debt upon a single bond, or a bond with condition for the pay- 
 ment of money only, or in debt for rent, or upon any contract, un- 
 less the plaintiff in error, with two sufficient sureties, should first 
 be bound to the plaintiff in the judgment, "by recognizance, in 
 double the sum recovered by the former judgment, to prosecute the 
 writ of error with effect, and also to satisfy and pay, if the said 
 iudgment should be affirmed, or the writ of error nonprossed, all 
 and singular the debts, damages and costs, adjudged upon the for- 
 mer judgment; and all costs and damages to be awarded for the 
 delaying of execution." This statute w^as specific as to the^ cases 
 in which bail in error (as it was called) was required, and it was 
 frequently held that it could not be required in any other cases. 2 
 .Sellon's Pr. 367-374; 2 Tidd 11 50. Subsequently by the statute of 
 13 Car. 11, ch. 2, as enlarged by 16 and 17 Car. II, ch. 8, the same 
 
 ^ng. Co. V. Lowe, 53 Kans. 30, 35 Pac 820 (1894) ; Wilson v. Kiescl, 164 
 U S. 248, 41 L. ed. 422 (1896) ; Sheridan v. Snider, 4 Kans. App. 214, 45 Pac. 
 1007 (1896) ; J'inccnt V. Collins, 122 Cal. 3S7, 55 Pac. 129 (1898) ; Richardson 
 V. Thompson, ^9 Nebr. 299, 80 N. W. 909 (1899) ; Krcntcr v. English Lake & 
 Land Co., 1-9 Ind. 372, 65 N. E. 4 (1902) ; Kiihn v. American Mitt. L. Ins. Co., 
 160 Ind 3^6^ 66 N. E. 890 (1902) ; Williamson v. Grider, 97 Ark. 588, 135 S. W. 
 361 (1911) ; Teel v. Chesapeake & Ohio R. Co., 204 Fed. 914 (1913)- Where 
 the parties are very numerous see Kidder v. Fidelity Ins. Trust Co., 105 Fed. 
 821, 44 C. C. A. 593 (1901) ; Milncr v. Meek, 95 U. S. 252, 24 L. ed. 44* 
 (1877) ; Wangerie'n v. AsPell, 47 Ohio St. 250 (1890). 
 ^'Extract from the opinion of the court.
 
 KOUNTZE V. OMAHA HOTEL CO. 84I 
 
 recognizance was required to stay execution in all personal actions in 
 M^hich a judgment was rendered upon a verdict, and in most cases 
 double costs were given in case the judgment was affirmed; and in 
 writs of error upon judgment after verdict in dower, and eject- 
 ment it was provided that execulion should not be stayed unless the 
 plaintiff in error should be bound to tlie plaintiff, in such reasonable 
 sum as the court below should think fit, with condition that if the 
 judgment should be affirmed, or the writ of error discontinued, 
 in default of the plaintiff in error, or he should be nonsuited therein, 
 that then he should pay such costs, damages, and sum or sums of 
 money as should be awarded upon or after such judgment affirmed, 
 discontinuance or nonsuit ; and to ascertain the sum and damages to 
 be awarded, it was provided that the court should issue a writ 
 of inquiry as well of the mesne profits as of the damages by any 
 waste committed after the first judgment in dower or ejectment, 
 and give judgment therefor and for costs. "'^ This w^as the form 
 in which the law stood for more than a century prior to our Revo- 
 lution, and is believed to have generally prevailed in this country 
 either by force of the English statutes, or similar statutes adopted 
 by the Colonies themselves down to the time of the passage of the 
 Judiciary Act by Congress in 1789. See i Rev. Laws of N. Y. 
 (1813), p. 143, act of 1801 ; Acts of New Jersey, Feb. i, 1799, 
 and Feb. 28, 1820, Elmer's Dig. 159, 160; Acts of Maryland, 1713, 
 ch. 4, I Kilty's Laws; and Alexander's British Statutes, in force 
 in Maryland, 16 and 17 Car. II, ch. 8. In Virginia, by the act of 
 1788, it was provided that before granting an appeal from a county 
 to a district court, or issuing any writ of error or supersedeas, the 
 party praying the same should enter into bond with sufficient secur- 
 ity, in the penalty to be fixed by the court or judge, with condition 
 to pay the amount of the recovery, and all costs and damages 
 awarded in case the judgment or sentence should be affirmed; and 
 the damages were fixed at ten per cent, per annum upon the princi- 
 pal sum and costs recovered in the inferior court ; and the same pro- 
 visions were applied to appeals, and writs of error to the court of 
 appeals. By the Act of 1794, on appeal from a decree in equity to 
 the High Court of Chancery, the condition of the appeal bond re- 
 quired was, to satisfy and pay the amount recovered in the county 
 court, and all costs, and to perform in all things the decree, if the 
 same should be affirmed. Laws of Virginia, ed. 1814, pp. 87, 115, 
 448. In Massachusetts, as appears in an early case (1804), a 
 supersedeas was granted upon the plaintiff In error giving bond to 
 respond all damages and costs in case the judgment should be af- 
 
 '"See Viner's Abridgment, Supersedeas (c) ; Hnddy v. Gifford, i Comyn. 
 321 (1720). For the modern English practice see Rules of Supreme Court, 
 Order LVIII, rule 16. Annual Practice, 1913, p. 1084. Hamill v. Lilley, L. R. 
 19 Q. B. Div. 83 (1S87). The Annot Lyle, L. R. 11 Probate Div. 114 (1886) ; 
 Merry v. Nickalls, L. R. 8 Ch. 205 (1873) ; Morgan v. Elford (L. R.), 4 Ch. 
 Div. 352 (1876) ; Attorney-Gen. v. Emerson, L. R. 24 Q. B. Div. 56 (1889). 
 Proceedings will not be stayed pending an appeal unless on special grounds. 
 Barker V. Lavery, L. R. 14 Q. B. Div. 769 (1885) ; Shaw v. Holland, L. R. 
 (1900) 2 Ch. 305.
 
 8.;j Arrr.AL and error 
 
 firmed. Bailey v. Baxter, i Alass. 156.''^ In Pennsylvania, where 
 the iiulfniient was alTirnied upon a writ of error, the execution in- 
 chuled the interest from the date of tlie original judgment. Respab- 
 lica V. Xicholson, 2 Dall. (U. S.) 256.^== 
 
 It is thus seen that, in the case of money judgments, bail in 
 error was required to secure: i, the amount of the original judg- 
 ment; 2, the costs and damages occasioned by the delay of execu- 
 tion. In tlie case of dower and ejectment, where the main thing in 
 controversy was land, bail was required to secure only such costs, 
 damages, and money as should be awarded after affirmance of judg- 
 ment, for mesne profits and waste pending the appeal. 
 
 In relation to money judgments, a long train of decisions in 
 England shows that the damages for delay for which the bail in 
 error were to respond were the interest on the sum recovered below 
 from tlie day of signing final judgment to the time of affirmance, 
 and costs in the writ of error, and in some cases double costs. In 
 the Exchequer Chamber, wdien double costs v/ere recoverable, the 
 court exercised its discretion whether to allow interest or not, it 
 not being allowed as a matter of course; but interest was only al- 
 lowed where the original demand was one that drew interest, and 
 not in cases of mere tort or unliquidated damages. Tidd, 1182, 
 1 183. In the House of Lords, they gave large or small costs in 
 their discretion, according to the nature of the case, and the reason- 
 ableness or unreasonableness of Htigating the judgment of the court 
 below, Tidd, 1184. 
 
 We have no reason to believe that the rule of damages for dp- 
 lay on a recognizance, or bond in error, was materially different in 
 this country, in 1789, from that which prevailed in England. The 
 statutes being substantially the same, undoubtedly the same rule 
 prevailed in administering them. 
 
 On appeals in chancery, the practice In England, in case of an 
 appeal from the IMaster of the Rolls to the Lord Chancellor was for 
 the party appealing to deposit £10, to be paid to the other party if 
 the decree was not materially varied, and he was also required to 
 pay the costs of the appeal ; and on appeal from the Court of Chan- 
 cery to the House of Lords, the appellant w^as obliged to make a 
 deposit of £20, and give security by recognizance in tlie sum of 
 £200 to pay such costs to the defendant in the appeal, as the court 
 should appoint, in case the decree should be affirmed. Harrison's 
 Pr. in Chancery, ed. Newland, pp. 342, 349-^^ I" i^io these amounts 
 were doubled. Smith's Ch. Pr. 27, 44. If a party wished to file a bill 
 
 *'Tandy v. Rowell, 54 N. H. 384 (i874)- „,.„,„„ , j s 
 
 *^Scheer er v. G rier, 3 Whartonj.4 (1837), i Tr. & H. Pr. (Wharton s ed.) 
 
 "Formerly an appeal from the court of chancery to the House of Lords 
 stayed the proceedings below, but the practice was afterward modified by 
 permitting a stav by order of the house or the chancellor. 15 Ves. Jr. 184 
 (1808) ; Way v. Foy, 18 Ves. Jr. 452 (1812) ; Hart & Hoyt v. Albany, 3 Paige 
 Ch (N Y) 381 (1832); Harris v. People, 66 111. App. 306 (1896); Penna. 
 R. Co. V. National Docks R. Co., 54 N. J. Eq. 647, 35 Atl. 433 (1896) ;//owy 
 V. McDonald, 109 U. S. ISO, 27 L. ed. 888 (1883) ; Ashby v. Yetter, 78 N. J. Eq. 
 173, 78 Atl. 799 (1910).
 
 CHARTER V. PEETER S43 
 
 of review, the general rule was that he must perform the decree 
 before filing his bill. Such being the rules prevailing on the subject 
 when the Act of 1789^'^ was passed, which required the plaintiff in 
 error to give security "to prosecute the writ of error to effect, and 
 to answer all damages and costs if he failed to m.ake his plea good," 
 the extremely general terms of the law are noticeable. ^^ 
 
 CHARTER V. PEETER 
 
 Court of Queen's Bench, 1597 
 
 Cro. EUs. 597 
 
 Fieri facias was awarded upon a judgment given in this court, 
 by force whereof the sheriff took the defendant's goods in execution ; 
 and before sale, the record was removed by a writ of error into the 
 exchequer chamber, and a supersedeas awarded. And the sheriff 
 returned upon the fieri facias a seizure of the goods, and that they 
 remained in his hands pro defectu emptorum; and he also returned, 
 
 **Act of Congress, September 24, 1789, di. 20, i Stat, at Large 84. See, 
 in amended form, U. S. Comp. Stat. (1913), § 1660, and, as to supersedeas, 
 U. S. Comp. Stat. (1913), § 1666. Ex parte Milwaukee R. Co., S Wall. (U. S.) 
 iSS, 18 L. ed. 676 (1866) ; Title Guaranty Co. v. General Electric Co., 222 U. S. 
 401, 56 L. ed. 24S (1912). 
 
 ^"At common law a writ of error operated as a supersedeas of its own 
 force. Bishop of Ossory's Case, Cro. Jac. 534 (1620) ; Bentley v. Fozvler, 
 8 Ark. 375 (1848); Ambrose v. Weed, 11 111. 4S8 (1850); Pettyjohn v. 
 Bloxom, I Houst. (Del.) 594 (1858) ; Hudson v. Smith, 9 Wis. 122 (1859) ; 
 Central Branch Union Pacific R. Co. v. Andrews, 34 Kans. 563, 9 Pac. 213 
 {1886); First Nat. Bank v. McAndrezvs, 7 Mont. 434, 17 Pac. 554 (1888); 
 State ex rel. EI pan v. District Court, 25 Okla. 871, 108 Pac. 375 (1910). In the 
 United States the subject is now generally regulated by statute, but the 
 vicAV that generally prevails is that a writ of error or appeal does not of 
 itself act as a supersedeas, the statutory requirements must be fulfilled. 
 Railroad Co. v. Harris, 74 U. S. 574, 19 L. ed. 100 (18&8) ; Boise Co. v. Gor- 
 man, 86 U. S. 661, 21 L. ed. 226 (1873) ; Eakle v. Smith, 24 Md. 339 (1865) ; 
 Home Fire Ins. Co. v. Dutchcr, 48 Nebr. 755, 67 IT. W. 766 (1896) ; Allen v. 
 Church, loi Iowa 1 16, 70 N. W. 127 (1897) ; Lancaster v. Snow, 184 111. 163, 
 56 N. E. 416 (1900) ; l ^argo y ^,Pcnna.-.R.^£Q..,.2i2jP ?i. 468, 62 Atl. 1081, no 
 Am. St. 559 (igoGX See further Cal. Code Civ. Pro., §§ 942, 946; Mass. Rev. 
 Laws (1902), p. 1679, § 6; N. Y. Code Civ. Pro., §§ 1310-14; N. j. Comp. Stats. 
 (1910), p. 450, § I IT, p. 2016, § 213a; Pa,_Act_Df-^Ma3^JtSul8QL P- L. 67, 
 §§ 6-iS, I P. & L. Dig. (2d ed.) 308; Hoon v. M//rr^ 16 Pa. J)ist. R^03 
 (1006). A general requirement is that security be entered. Lane v. Bacaius, 
 2 T. R. 44 (1787) ; Catlctt v. Brndie, 9 Wheat. (U. S.) 553, 6 L. ed. 158 
 (1824) ; Ferris v. Douglas, 20 Wend. (N. Y.) 626 (1839) ; Branigan v. Rose, 
 8 111. (3 Gilm.) 123 (1846) ; Stafford v. Union Bank of Louisiana, 58 U. S. 
 275, 15 L. ed. 505 (1854) ; Ex parte Sivceny, 131 Ind. 81, 30 N. E. 884 (1801) ; 
 Creighton v. Keith, 50 Nebr. 810, 70 N. W. 406 (1897) ; Harrison v. Stebbins, 
 104 Iowa 462, 73 N. W. 1034 (1898) ; Smead v. Stuart, 194 Pa. St. 578, 45 Atl. 
 343 (1900) ; Shockv. Solar Gas L^Cq., 17 Pa.._StriI_R:i6L. 09087; Hohen- 
 adcl V. Steel e/23fT\t':z2i^~86^W."E. 717 (1908) ; Thomas v. Lee, 74 Wash. 286, 
 133 Pac. 446 (1913) ; Mundy v. Irwin, 19 N. Mex. 170, 141 Pac. 877 (1914).
 
 S-}4 Arri'.AT. Axn trkor 
 
 that a supersedeas was awardctl, etc. i\ml liereupon it was prayed 
 f<">r the defendant, that he mij^ht have restitution of his g^oods. But 
 all the court held, although this record be removed, and notwith- 
 standing the suj^ersedeas awarded, in regard it came not unto the 
 shcrift' until he had liegun to make execution, as ajijjcars by his re- 
 turn, that a venditioni exponas shall be awarded to i)crfect it; and 
 although the ]ilea roll be removed, yet it shall be awarded upon the 
 return of the fieri facias, which remains filed in the office. And so 
 it was likewise done in the case of Sir Miles Corbet v. Rookzvood, 
 Trinity term, 39 Eliz. Roll 406, in this court; although tlie record 
 was there removed by a writ of error.^*^ 
 
 RAXSO^I V. riERRE 
 
 Circuit Court of Appeals of U. S., Eighth Circuit, 1900 
 
 10 1 Fed. 665 
 
 On September 28, 1896, James J. Ransom began an action in 
 the South Dakota Circuit Court by mandamus against the treasurer 
 of the city of Pierre, to compel him to apply funds in his hands to 
 the payment of coupons of certain bonds of the city. There was a 
 trial ; the court found that the coupons were illegal and entered 
 judgment dismissing the proceedings. From this judgment Ran- 
 
 "'Accord: Milton v. Eldrlngton, I Dyer 99 (1554); Anon., Afoore 542 
 Ci?97") ; Tocock v. Honyvian, Yelv. 6 (1601) ; Baker v. Bulstrodc, i Vent. 
 (K. B.) 255 (1673); Mcriton V. Stevens, Willcs, 271 (1741) ; Doe ex dent. 
 Mcssiter v. Dynelcy, 4 Taunt. 289 (1812) ; Blanchard V. Myers, 9 Johns. (N. 
 Y.) 66 (1812) ; Kinnle v. IVhitford, 17 Johns. (N. Y.) 34 (1S19) ; Beatty v. 
 Chapline, 2 H. & J. (Md.) 7 (1806) ; Blunt v. Greenwood, I Cow. (N. Y.) 15 
 (1823) ; Arnold v. Fuller, i Ohio 4^8 (1824) ; Boyle v. Zacharle, 6 Pet. (U. S.) 
 648, 8 L. ed. 532 (1832); Stezvart V. Siiiilh_, j /PhUa. (Pa) 171 (1851); 
 Cilr.wur v. Hall, 10 U. C. O. B. SoTn^^sTT^J'tT^^w^'^^^wrvr'/^Yrr/r, 6 W. N. 
 C. (Pa.) 2^4 (1878) ; Neiier v. Schnlkcn. K Kulp (Pa.) l^^ (1888) ; RaniLy. 
 Long. 6 Kub (PaJ ^2Q9 (1801) ; Taylor v. Brcisch, 8 Pa. £■ C^M. (18S9) ; 
 fetcrson v. Wayne C. J., 108 Mich. 608, 66 ~^ W. 487 (1896); Snyder v. 
 Po'ivell, 133 111. App. 393 (1907). Otherwise where the appeal precedes the 
 lew. Bryoi L V. Comlw 2 Aliles (Pa.) 271 (183S); Adanis V. llindman, 
 2_MilesTPaT454Ti842) : Mx DonalTVnT rfford. i BrewsC (Pa.) 278 ( i8551 . 
 It Tias, however, been frequently held that the coiirt~in its discretion, and in 
 the exercise of its equitable control over its own process, may recall or stay 
 the proceedings for a sale pending the appeal. Strieker v. Wakeman, 13 Abb. 
 Pr. (N. Y.) 85 (1861); Bailey v. Baxter, I Mass. 156 (1804); Sa\re v. 
 Reynolds, 5 N. J. L. 564 (1819) ; Basscit v. Daniels, 10 Oliio St. 617 (1858) ; 
 Ru'cker v. Harrison, 6 Munf. (Va.) 181 (1818) ; Burr v. Bu.rr, 10 Paige 
 (X. Y.) 166 (1843); First Nat. Bank V. Rogers, 13 Minn. (Gil. 376) 407, 
 97 Am. Dec. 239 (1868); Cook v. Dickerson, i Duer (N. Y.) 679 (1853); 
 Robertson v. Davidson, 14 INIinn. (Gil. 422) 554 (1869) ; Burrall V. Vandcrbilt, 
 I Bosw. 637, 14 N. Y. Super. Ct., 6 Abb. Prac. 70 (1858) ; MeCamy v. Lawson, 
 JO Tenn. (3 Head.) 256 (1859) ; Ewing v. Jacobs, 49 Cal. 72 (1874) ; Bent ley 
 V. Jones, 8 Ore. 47 (1879) ; Janesville v. Janesville Water Co., 89 Wis. 159, 
 61 X. W. 770 (1895) ; Tilley v. Washburn, 91 Wis. 105, 64 N. W. 312 (1895) ; 
 Parker v. Trovers, 69 Atl. "(N. J.) 306 (1907) ; Anderson V. Phcglcy, 54 Ore. 
 K-2, 102 Pac. 603 (1909).
 
 RANSOM V. PIERRE 845 
 
 som, on June 29, 1897, appealed to tlie Supreme Court of South Da- 
 kota, giving a supersedeas bond. On February 23, 1898, while the 
 appeal in the before-mentioned suit was pending and undetermined. 
 Ransom brought this action against the city of Pierre in the Circuit 
 Court of the United States. The city, among other defenses, pleaded 
 the judgment in the mandam.us proceeding in the state court as a 
 bar to recovery. This defense was sustained and judgment ren- 
 dered dismissing the complaint. The plaintiff then brought error. 
 At the time of argument in the circuit court of appeals, the appeal 
 to the Supreme Court of Dakota was undetermined, but on March 
 2, 1900, the judgment was reversed."^ 
 
 Thayer, J.: On the argument of this cause it was urged on 
 behalf of the plaintiff in error that the trial court erred in holding 
 that the judgment in the mandamus proceeding was conclusive as 
 respects the validity of the bonds in controversy ; first, because sec- 
 tion 5343 of the Compiled Laws of Dakota of 1887 declares that 
 "an action is deemed to be pending from the time of its commence- 
 ment until its final determination upon appeal, or until the time for 
 appeal has passed, unless the judgment be sooner satisfied." 
 
 The first contention of the plaintiff in error, stated above, pre- 
 sents a question of difficulty. In many cases the question has been 
 mooted whether, when a writ of error has been sued out, or when 
 an appeal has been taken which operates essentially as a writ of 
 error, to review a judgment at nisi prius, and a supersedeas bond 
 has been given to stay the proceedings, such a judgment may be re- 
 ceived in evidence in another suit between the same parties in sup- 
 port of the pleas of res judicata; and, while the decisions upon this 
 cjuestion have not been uniform, yet, in our judgment, the weight of 
 judicial opinion, as well as sound reason, is that, when a case which 
 is removed to an appellate court by a writ of error or an appeal is 
 not there tried de novo, but the record made below is simply re- 
 examined, and the judgment either reversed or affirmed, such an 
 appeal or writ of error does not vacate the judgment below or pre- 
 vent it from being pleaded and given in evidence as an estoppel upon 
 issues which were tried and determined, unless some local statute 
 provides that it shall not be so used pending the appeal. A super- 
 sedeas bond merely operates to stay an execution or other final 
 process on the judgment. It does not vacate the judgment nor pre- 
 vent either party thereto from invoking it as an estoppel."^ 
 
 It is insisted, however, as before stated, that the statute of 
 South Dakota quoted above was intended to prevent a judgment 
 from being pleaded as an estoppel during the pendency of an ap- 
 
 "The facts are condensed and part of the opinion omitted. 
 
 '"Citing Railway Co. v. Twombly, 100 U. S. 78, 25 L. ed. 550 (1879) 
 Willard v. Ostrandcr, 51 Kans. 481, 32 Pac. 1092, 37 Km. St. 294 (1893) 
 Parkhurst v. Berdcll, no N. Y. 386, 18 N. E. 123, 6 Am. St. 384 (1888). 
 Scheible v. Single, 89 Ind. 323 (1883) ; Faber v. Hovcy, 117 Mass. 107, 19 Am 
 Rep. 398 (1875); Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410 (1887); 
 Moore v. Williams, 132 111. 589, 24 N. E. 619, 22 Am. St. 563 (1890) ; Bank of 
 N. America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683 (1859) ; Orcgonian 
 R. Co. v. Oregon R. & N. Co., 27 Fed. 277 (1886) ; Cloiid v. Wiley, 29 Ark. 80 
 (1874) ; Cain v. Williams, i-6 Ncv. 429 (1882).
 
 8_;6 Arri-.Ai. a>.d f.kror 
 
 peal, and that view of the elYcct of the statute is supported by cer- 
 tain CaUfornia decisions, in which state a similar statute has been 
 enacted. Xaftcgcr v. Gregg, 99 Cal. 83; In re Blytltc, 99 Cal. 472; 
 Story V. Commercial Co., 100 Cal. 41. On the other hand, in the 
 state of Orci^on, where substantially the same statute is in force, it 
 is held that the statute was not designed to i)revent a judgment from 
 being pleaded in bar of another suit on tlie same cause of action 
 during tlie pendency of an appeal from th.e judgment. Day v. Hol- 
 land, 15 Ore. 464. The statute now under consideration was en- 
 acted in the Dakotas before it was enacted in California, so that it 
 can not be said that the California doctrine became the law of the 
 territory of Dakota by adoption. The decisions in California and 
 Oregon are merely persuasive authority. While the Supreme Court 
 of the state of South Dakota has never as yet placed an authorita- 
 tive construction upon the statute in case where a judgment that 
 had been obtained in a civil action was pleaded in bar to another 
 suit between the same parties during the pendency of an appeal 
 from tlie judgment, yet it has held, notwithstanding the statute in 
 question, that a judgment in a criminal case may be given in evi- 
 dence in another case as conclusive evidence of a conviction for a 
 crime, during the pendency of an appeal from the judgment. In 
 re Kirby, 10 S. Dak. 322. 
 
 In this state of the authorities and upon an independent con- 
 sideration of the question we have reached the conclusion that the 
 Dakota statute to which the discussion relates v\^as not intended to 
 prevent a final judgment of one of its courts of superior jurisdic- 
 tion from being pleaded in bar to another suit between tlie same 
 parties and upon the same cause of action during the pendency of 
 an appeal therefrom, but that its purpose was to affect purchasers 
 of property which is in litigation with notice of the litigation until 
 the litigation is ended. It is well known that courts have at times 
 disagreed as to whether one who purchases property which is in 
 litigation intermediate a judgment at nisi prius and the expiration 
 of the time limited for suing put a writ of error or taking an 
 appeal should be regarded as a bona fide purchaser, or as affected 
 with notice by lis pendens if an appeal is subsequently taken. Some 
 courts have answered this question in the affirmative, others in 
 the negative.'^ We accordingly incline to the view that the statute 
 was intended to settle this debatable point in South Dakota by say- 
 ing, in effect, that one who purchases property after a judgment, but 
 prior to the expiration of the time limited for an appeal, shall be 
 deemed a purchaser pendente lite. In the absence of the statute 
 aforesaid the suing out of a writ of error or the taking of an appeal 
 might be regarded as the institution of a new suit, and as having 
 
 "Citing Rector v. Fitzgerald, ^g Fed. 808, 8 C. C. A. 277 ( 1894) ; Taylor 
 V. Boyd, 3 Ohio 338 (1827) ; fJdridge v. Walker, 80 111. 270 (1876) ; Mackhn 
 V. Allenhcrg, ioo'Mo. 2,37, U S. W. 350 (1889) ; Pierce v. Stindc, 11 Mo. App. 
 364 (1881) ; McCormick v. McClnre, 6 Blackf. (Ind.) 466, 39 Am. Dec. 441 
 (1842) ; Dchell v. Foxii'nrthv, 9 B. Mon. (Ky.) 228 (1849) ; Harle v. Langdon 
 Heirs, 60 Tex. 555 (1883) ; Marks v. Cowles, 61 Ala. 299 (1878). See Uni£ 
 V. Lamjdiuih, 12 Pa. St. 344 (1849) ; Leo_nai:dLsuiPpeai^4 Pa. St. 180 (1880).
 
 RANSOM V. PIERRE 847 
 
 no effect on a title acquired before an appeal was taken. In our 
 judgment, the statute was not designed to have any other force and 
 effect than that last stated. It can hardly be supposed that it was 
 intended to encourage litigants to bring repeated suits to settle the 
 same controversy, and it ought not to be given an erroneous inter- 
 pretation because by so doing the ends of justice would perhaps be 
 subserved in the present instance.^" 
 
 In view, however, of the recent decision by the Supreme Court 
 of South Dakota, the substance of which has been heretofore stated, 
 the question to be decided at this time is not In all respects the same 
 as the one which was discussed on the trial below and at the hearing 
 in this court. Assuming, in view of what has already been said, 
 that the judgment in the mandamus suit was pleadable in bar, and 
 determinative of the plaintiff's rights in the case now in hand so 
 
 *° Accord: Doe v. Wright, 10 Ad. & El. 763 (1839); Nxll v. Comparet 
 16 Ind. 107, 79 Am. Dec. 411 (1861) ; Merrclls v. Phelps, 34 Conn. 109 (1867) 
 Sage V. Har dp ending, 49 Barb. (N. Y.) 166, 34 How. Pr. (N. Y.) i (1867) 
 Cloud V. Wiley, 29 Ark. 80 (1874), semble; Woodward v ^jC_a rson, 86 Pa . St 
 176 (1878) ; Buchanan v. Logansporf. C. & STlV. R. Co., 71 Tnd. 265 (1880) 
 Cain v. Winia'.ns, 16 Nev. 426 (1882) ; Schelhle v. Slagle, 89 Ind. 323 (1883) 
 Burgess v. Poole, 45 Ark. 2>7i (1885) ; IVnndivnrd v C arey. 42 L. I. (Pa .) 
 490 (1885) ; Parkhiirst v. BerdcU, no N. Y. 386, 18 N. E. 123, 6 Am. St. 384 
 (1888); Dav v. Holland, 15 Ore. 464, 15 Pac. 855 (1887); SmM's Appeal, 
 15 Atl. (Pa ) 807 (1S88) ; Moore v. Williams, 132 111. 59i, 24 K ET '^17 
 (jSgoJT'Smith v. Schreiner, 86 Wis. 19, 56 N. W. 160, 39 Am. St. 869 (1893) 
 Willard v. Ostrander, 51 Kans. 481, 32 Pac. 1092, 2>7 Am. St. 294 (1893) 
 Watson V. Richardson, no Iowa 608, 80 N. W. 416, 80 Am. St. 331 (1899) 
 People V. Rickert, 159 111. 496, 42 N. E. 884 (1896) ; Crclghton v. Keith, 50 
 Nebr. 810, 70 N. W. 406 (1897) ; SiilUvan v. Rlngler, 69 App. DIv. 388, 74 N. Y. 
 S. 978 (1902) ; Reese v. Damato, 44 Fla. 692, 33 So. 6-12 (1902) ; United States 
 ex rel. Coffman v. Norfolk & W. R. Co., 114 Fed. 682 (1902) ; Messlnger v. 
 Anderson, 171 Fed. 783 (1909). So, also, in the case of foreign judgments. 
 Bank of N. America v. Wheeler, 28 Conn. 433, 7:^ Am. Dec. 683 (1859) ; 
 Suydam v. Hoyt, 25 N. J. L. 230 (1855) ; Merchants' Ins. Co. v. De Wo lf, 
 33 Pa St 4.i. 7^ A m. Dec. 577 (1859); ^cott v. PUkington, 2 ±5. & S. 11 
 (i«62) ; Cherry \. Speight, 28 Tex. 503 (1866) ; Rogers v. Hatch, 8 Nev. 35 
 (1872); Faher v. Hovey, 117 Mass. 107, 19 Am. Rep. 398 (1875) ; Paine v. 
 Schenectady Ins. Co., Ii R. I. 411 (1876). Otherwise where the record is 
 removed from an inferior court for retrial. Campbell v. Howard, 5 Mass. 376 
 (1809) ; Boltings v. Flrhy, 9 B. & C. 762 (1829) ; Boynton v. Dyer, 18 Pick. 
 (Mass.) I (1836) ; Sovter v. Bavmore, 7 P a . St. 4 1^^, 47 Am. Dec. 518 (1847) ; 
 Small V. Hasklns, 26 Vt. 209 (1854) ; O'Donncll v. Mullin, 27 Pa. St. 199, 67 
 Am. Dec. 458 (1856) ; De Camp v. Miller, 44 N. J. L. 617 (1882) ; Tommey v. 
 Finney, 45 Ga. 155 (1872) ; Day v. DeYonge, 66 Mich. 550, 33 N. W. 527 
 (1887) ; Bryar v. Campbell, 177 U. S. 649, 44 L. ed. 926 (iQoo) ; Tyndale v. 
 Stanwood, 186 Mass. 59, 71 N. E. 83 (1904). Contra: Stalblrd v. Seattle, 
 36 N. H. 455, 72 Am. Dec. 317 (1858) ; Byrne v. Prathcr, 14 La. Ann. 653 
 (1859) ; Glenn v. Brush, 3 Colo. 26 (1876) ; Haynes v. Ordway, 52 N. H. 284 
 (1870) ; Ketchum v. Thatcher, 12 Mo. App. i8^ (1882) ; Green v. U. S., 18 Ct. 
 of CI. (U. S.) 93 (1883) ; Sharon v. Hill, 26 Fed. Z2>7 (1885) ;_ Texas Trunk 
 R. Co. v. Jackson, 85 Tex. 605, 22 S. W. 1030 (1893)), overruling Thompson 
 V. Griffin, 69 Tex. 139, 6 S. W. 410 (1807) ; Cunningham v. Holt, 12 Tex. Civ. 
 App. 150, :^2 S. W. 981 (1806); Purser v. Cady, 120 Cal. 214, 52 Pac. 489 
 (i8g8) ; Hershey v. Meeker County Bank, 71 Minn. 255, 73 N. W. 967 (1898), 
 semble; Southern R. Co. v. Brigman, 95 Tenn. 624, 32 S. W. 762 (1895); 
 Drlk V. Yelton, 103 Tenn. 476, 53 S. W. 729 (1899) ; Eastern Building & 
 Loan Assn. v. Welling, 103 Fed. 552 (1909 S. Car.) ; S^nith v. Smith, 134 Cal. 
 117, 66 Pac. 81 (1901) ; Boucher v. Barsalou, 27 Mont. 99, 69 Pac. 555 (1902).
 
 S.}S AITKAL AND F.?.ROR 
 
 lonj; as that juclgincnt %vas unreversed we are nevertheless con- 
 fronted with the inquiry whether it should be given that eltcct when 
 it is shown by a duly ccrtiiied copy of the opinion of the Supreme 
 Court of South Dakota that the judgment in question has been va- 
 cated and aniuillcd for error. As a general proi)osilion, it is doubt- 
 less true that an appellate court is reciuircd to determine whether a 
 iudgmcnt which is challenged by a writ of error is erroneous upon 
 the facts disclosed by the record, and upon the facts as they existed 
 when tlie judgment was rendered. But, inasmuch as all rules of 
 procedure are intended to secure the administration of justice in an 
 orderly manner, it does not seem reasonable that a rule of procedure 
 should be observed when it is apparent that a strict adherence thereto 
 will work an injustice. When an appellate court has the power to 
 vacate a judgment rendered by a nisi prius court, oyer whose pro- 
 ceedings it exercises supervision and control, and its attention is 
 called in an authentic manner to something that has transpired 
 since the trial, which renders it inequitable to permit the judgment 
 to be carried into effect, we think that it may lawfully exercise its 
 power to annul the judgment and remit the record to the lower 
 court for such further proceedings as may be necessary. It is es- 
 sential, of course, that there should be a general observance of rules 
 of procedure, but compliance with a particular rule ought not to be 
 required when a literal compliance therewith would dcfeat,_ rather 
 than promote, the real ends of justice. As a general proposition, the 
 rights of tlie parties to a suit are to be determined upon the facts as 
 they exist when the action is commenced, or at least when the is- 
 sues have been formulated by pleadings. Nevertheless, the common 
 law has always permitted a defendant to take advantage oi a. defense 
 growing out of what subsequently transpires by a plea puis darrein 
 continuance. Andrews, Stcph. PI. par. 77, Chit. PI. (16th Am. 
 Ed.), pp. 689, 690. In the state of New York, where the doctrine 
 prevails that the taking of an appeal from a judgment does not 
 prevent the judgment from being pleaded, in bar to another action 
 between the same parties, it is held that if, after a judgment has 
 been successfully pleaded in the second suit, it is reversed on ap- 
 ])eal, the judgment in the second action may be set aside by the 
 trial court for that reason, although no error was committed on the 
 trial. Parkhurst v. Berdell, no N. Y. 386. In the case of Humph- 
 reys V. Lcggett, 9 How. (U. S.) 297 (see also Leggetf v. Humph- 
 reys, 21 How. (U. S.) 66), the facts appear to have been that, while 
 a writ of error was pending in the Supreme Court of the United 
 States to reverse a judgment in favor of a surety on a sheriff's bond, 
 the whole penalty of the bond was collected of the surety under a 
 judgment regularly obtained in a state court. The Supreme Court 
 of the United States reversed the judgment in favor of the surety, 
 and sent down its mandate directing the entry of a judgment against 
 the surety for a specified sum. The surety thereupon pleaded puis 
 darrein continuance the payment of the full penalty of the bond in 
 obedience to the judgment of the state court, but the trial court 
 disallowed the plea, and entered judgment according to the mandate.
 
 RANSOM Z'. PIERRE 849 
 
 The surety then filed a bill to restrain the enforcement of the latter 
 judgment, and it was held that he was entitled to the relief prayed 
 for, inasmuch as the surety had been guilty of no laches, and it 
 would be inequitable to permit an amount in excess of the penalty 
 of the bond to be collected from him. Under the doctrine enunci- 
 ated in that case it would seem that, if this court should affirm the 
 judgment below on the ground that it can not take cognizance of the 
 recent decision of the Supreme Court of the state of South Dakota, 
 equitable relief might be afforded against the judgment. But, even 
 if such relief might be obtained, why should this court affirm the 
 judgment, and compel the institution of a new suit, when it is ad- 
 vised in an authentic manner that the judgment which served to 
 prevent the plaintiff' from recovering below was an erroneous judg- 
 ment, and that the same has been finally vacated and annulled ? The 
 trial court could have granted a new trial because of the reversal of 
 the judgment, although its record disclosed no error, and it seems 
 reasonable that this court should exercise a similar discretionary 
 power so long as it retains control over the judgment, and a fact 
 has been brought to its attention concerning which there can be no 
 dispute. We can not say that the existing complications are due to 
 any fault or laches of the plaintiff in error. When he brought the 
 action he was doubtless advised by counsel that the judgment in 
 the mandamus case could not be pleaded in bar, in view of the appeal 
 therefrom and the provisions of the Dakota statute. The construc- 
 tion that had been placed on that statute by the courts of California 
 give great weight to this view, and, while we are constrained to hold 
 that the view was erroneous, yet we are not prepared to decide 
 that the plaintiff should be compelled to sustain a great loss because 
 he has been guilty of no other fault tlian the bringing of an action 
 based upon a mistaken view of the law. The trial court might have 
 continued the case in hand of its own motion until the mandamus 
 case was decided, and we think that such action ought to have 
 been taken. That course, however, was not pursued, and it is the 
 duty of this court, which still retains control of the judgment to 
 take such action as will shorten the litigation, preserve the rights 
 of both parties, and best subserve the end of justice. In view 
 of v/hat "has been said, we conclude tliat we have the power and that 
 it is our duty to reverse the judgment below, and remand the cause 
 for a new trial. The judgment in the mandamus case has been re- 
 versed, and the cause remanded for a new trial, and, if this court 
 makes a similar order, it will be optional with tlie plaintiff to prose- 
 cute either one of the suits and dismiss the other, and by so doing 
 avoid further complications growing out of the pendency of suits 
 upon the same cause of action in two courts of coordinate jurisdic- 
 tion. The judgment below is therefore reversed, and the cause re- 
 manded for a new trial .^^ 
 
 "At common law a writ of error was no bar to an action based on the 
 judgment. Y. B. 4 Hen. VI 31; Y. B. 18 Edw. 14, 6; Anon., Dyer, 32, pi. 5; 
 Adams w. Tomlinson, I T. Raym. 100, i Sid. 236 (1676) ; Dighton v. Granvil, 
 4 Mod. 247 (1694) ; Anonymous, 11 Mod. 78 (1707) ; Donford v. Ellys, 12 
 
 54 — Crv. Proc.
 
 S50 APPEAL AXD ERROR 
 
 SECTION 4. EXCEPTIONS AND RECORD 
 
 STAT. WESTAI. II, CH. 31 
 
 13 Echv. I (1285) 
 
 When one that is impleaded before any of the justices doth 
 allcg^e an exception, praying that the justices will allow it, which 
 if they will not follow, if he that alleged the exception do write the 
 same exception, and require that the justices Avill put their seals 
 for a witness, the justices shall so do; and if one v.ill not, another 
 of the company shall. And if the King, upon complaint made of the 
 justices, cause the record to come before him, and the same excep- 
 tion be not found in the roll, and the plaintiff show the exception 
 v.Titten, with the seal of a justice put thereto, the justice shall be 
 commanded that he appear at a certain day, either to confess or 
 deny his seal, and if the justice can not deny his seal, they shall 
 proceed to judgment according to the same exception, as it ought 
 to be allowed or disallowed.'*- 
 
 WRIGHT V. SHARP 
 
 Court of Queen's Bench, 1708 
 I Salk. 28S 
 
 A corporation book was offered in evidence at the assizes to 
 prove a member of the corporation not in possession, and refused. 
 No bill of exceptions was then tendered, nor were the exceptions 
 reduced to writing; so the trial proceeded, and a verdict was given 
 
 !Mod. 138 (1698). But it was sometimes allowed to be pleaded in abatement. 
 Rogers v. Mayhoe, Carth. I (1687) ; Aby v. Brixton, Carth. I (1687) ; Prinn 
 V. Edwards, I Ld. Raym. 47, 3 Salk. 145 (1696). Contra: Rottenhojfer V. 
 Lent hall, Carth. 136 (1601) ; Goodzvin v. Goodzvin, 20 Viner's Abr. 69 (1712). 
 And, by the later practice, the court under some circumstances stayed the 
 second action imtil the writ of error was determined. Taszvcll v. Stone, 4 Burr. 
 24^4 (1769); Gribhle v. Abbot, i Cowp. 72 (1774); Entzvlstle v. Shepherd, 
 2 T. R. 78 (1787) ; Pool V. Charnock, 3 T. R. 79 (1789) ; Smith v. Shepherd, 
 5 T. R. 9 (1792;) Bicknell v. Lonnstaffe, 6 T. R. 455 (i795) ; Abraham v. 
 Pi'.gh, 5 B. & Aid. 903 (1822) ; Jenkins v. Pepoom, 2 Johns. Cas. (N. Y.) 312 
 (1801) ; Planters' Bank v. Calvit, 3 Sm. & M. (Miss.) 143, 41 Am. Dec. 616 
 (1844) ; Hailiuan v. Buckmaster, 8 111. 408 C1846) ; Taylor v. Shezv, 39 Cal. 
 536, 2 Am. Rep. 478 (1870) ; U. S. Fidelity &c. Co. v. Jones, 33 Ky. L. 737, 
 III S. \\'. 208 (1908); First Nat. Bank of Frederick, Wis., v. Mcllvaine, 
 32 S. Dak. 177, 142 N. W. 468 (1913). Compare: Atkins v. IVyman, 45 Maine 
 399 ^1858). 
 
 ^'Bacon's Abridgment, "Bill of Exceptions"; 2 Co. Inst. 426; 3 Bl. Comm. 
 372; Buller's N. P. 316. Under the statute if the judge at the trial, mistake 
 the law. the counsel on either side may require him to seal a bill of excep- 
 tions. It must, however, be upon some point of law, such as adrnitting or 
 refusing evidence, or a challenge, or upon some question of law arising dur- 
 ing a trial, in which either party is overruled by the court. Arch. Pr. (7th ed.) 
 311; Elliott's Appellate Procedure, § 797; 2 Tidd's Practice (9th ed.) 862.
 
 WRIGHT V. SHARP 851 
 
 for the plaintiff. Next term the court was moved for a bill of 
 exceptions, and it was stirred and debated in court. It was urged, 
 that the law requires quod proponat exceptionem suam, and no 
 time is appointed for reducing it into writing, and the party is not 
 grieved till a verdict be given against him; and the same memory 
 that serves the judges for a new trial v^nll serve for bills of excep- 
 tions. Vide 2 Inst. 437. N. B. 21, 540 b. Vet. Intr. 96, 136. Ray- 
 mond 405. Brownl. Red. 433. 2 Lev. 236. Stat. Westm. II, ch. 31. 
 On the other side it was said, that this practice would prove a great 
 difficulty to judges, and delay of justice; that the precedents and 
 entries suppose the exception to be written down upon its being dis- 
 allowed, and the statute ought to be construed so as to prevent 
 inconvenience; besides, the words of the act are in the present 
 tense, and so is the writ formed on the act. 
 
 Holt, C. J. : If this practice should prevail, the judge would 
 be in a strange condition; he forgets the exception, and refuses to 
 sign the bill, so an action must be brought ; you should have insisted 
 on your exception at the trial; you waive it if you acquiesce, and 
 shall not resort back to your exception after a verdict against you, 
 when perhaps, if you had stood upon your exception, the party 
 had other evidence, and need not have put the cause on this point ; 
 the statute indeed appoints no time, but the nature and reason of 
 the things require tlie exception should be reduced to writing when 
 taken and disallowed, like a special verdict, or a demurrer to evi- 
 dence not that they need to be drawn up in form ; but the substance 
 must be reduced to writing while the tiling is transacting, because it 
 is to become a record ; so the motion was denied.*^ 
 
 *'The exception must be asked for at the time the alleged erroneous rul- 
 ing is made. Gnillou v. Rcdfield, 20^ Pa. 2q.^ '^4 Atl. 886 (1903) ; Richards 
 v. Appcly, 187 Mass. 521, 73 JN. E. 555 (1905); Graves v. Hicks, 194 Mass. 
 524, 80 N. E. 605 (1907). The common law required, also, that the bill be 
 presented signed and sealed at that time, but for the convenience of bench 
 and bar, modern statutes and rules permit the bill to be formally drawn up 
 and settled after the trial within a prescribed time. Hake v. Stnibel, 121 111. 
 321, 12 N. E. 676 (1887) ; Stezvart v. Huntington Bank, 11 Serg. & R._(Pa.) 
 267, 14 Am. Dec. 628 (1824) ; hx parte Bradstreet, 4'Pet. (U. S ) 102 7 L ed 
 796 (1830) ; Lazv v. Merrills, 6 Wend. (N. Y.) 268 (1830) ; Wilson v. Moore. 
 19 N. J. L. 186 (1842); Elzvcll V. Dizer, 83 Mass. (i Allen.) 484 (1861) ; 
 State v. Holmes, 36 N. J. L. 62 (1892) ; Ex parte Nelson, 62 Ala. 376 (1878) ; 
 Haines v. Commonzvealth. oo Pa. St. 4 10 ('1882') ; Martin v. Foiilke, 114 111'. 
 200, 29 JM. E. 683 (1885) ; Che Gong v. Stearns, 16 Ore. 219, 17 Pac. 871 
 (1888); Commonzvealth y._Arnoldj_ _ 161 Pa. St. .320, 29 Atl. 270 (1891) ; 
 Handier v btephens'onTT^j IncT 498, 46 N. ET 916 (1B96) ; Schlessinger v. 
 Cook, 8 Wyo. 484, 58 Pac. 757 (1899); Trager v. Webster, 174 Mass. 580, 
 55 N. E. 318 (1899) ; Watson v. Milford, 72 Conn. 561 (1900) ; Gamache v. 
 Biidd, 129 Cal. 554, 62 Pac. 105 (1900) ; Enck v. Gerding, 63 Ohio St. 175, 57 
 N. E. 10S3 (1900); Gaff V. Britton, 182 Mass. 293, 65 N. E. 379 (1902); 
 Gartjnan v. Union Tr. Co.. T3 Ea-Dist. R. 210 (19Q4) ; Jennings v. P. B. & W. 
 R. Co., 218 U. S. 255, 54 L. ed. 1031 (1910) ; Pace v. Volk, 85 Ohio St. 413 
 (1912) ; Dalton V. Dalton, 146 Ky. 18, 141 S. W. 371 (1911) ; Sieling v. Brun- 
 ncr, 117 Md. 682, B>2, Atl. 1032 (1912) ; Alzvard v. Harper, 253 111. 294, 97 N. E. 
 653 (1912) ; Wy.';s-Thahnan v. Maryland Casualty Co., 193 Fed. 53 (loii) ; 
 Lupton V. Underivood, 26 Del. 519, 85 Atl. 965 (1912) ; Moore v. Harrison, 114 
 Va. 424, 76 S. E. 920 (1912) ; Kramm v. Stockton E. R. Co., 22 Cal. App. 7^7, 
 136 Pac. 523 (1913) ; Davis v. Cress, 214 Mass. 379, loi N. E. 1081 (1913) ;
 
 85J AiTiiAL AM) i::jkok 
 
 LEES r. UXITl'.D STATES 
 
 SuPRKMi: CcHKT oi- Till': United States, 1893 
 150 U. S. 476 
 
 On August 22, 1888, tlie United States commenced this action 
 in the District Court of the United States for the Eastern District of 
 rcnnsylvania to recover of Joseph Lees and John S. Lees, the pres- 
 ent plainlilts in error, the sum of one thousand dollars, as a forfeit 
 and penalty for a violation by them of the Act of Congress of Feb- 
 ruary 26, 1SS5, entitled "An act to ]:)rohibit the importation and 
 migration of foreigners and aliens under contract or agreement to 
 perform labor in the United States, its territories, and the District 
 of Columbia." 23 Stat. 332, ch, 164. Proceedings were thereafter 
 had in that suit which resulted in a judgment, on February 23, 1889, 
 in favor of the L^nited States, for the sum of one thousand dollars. 
 This judgment was affirmed by the circuit court of that district, and 
 has since, by writ of error, been brought to this court for review.** 
 
 Brewer, J. : A third allegation of error is that the court com- 
 pelled one of the defendants to become a witness for the govern- 
 ment, and furnish evidence against himself. The bill of exceptions 
 reads as follows : 
 
 "John S. Lee sworn. 
 
 "Mr. Fenton : John S. Lee, the witness called, is one of the 
 defendants. This is a proceeding in the nature of a criminal pro- 
 ceeding. I object to his being examined on behalf of the plaintiff, 
 because he is protected by statute. 
 
 "(Objection overruled. Exception for defendant.)" 
 
 This, though an action civil in form is unquestionably criminal 
 in its nature, and in such a case a defendant can not be compelled to 
 be a witness against himself. It is unnecessary to do more than to 
 refer to the case of Boyd v. United States, 116 U. S,6i6. Tlie ques- 
 tion was fully and elaborately considered by Mr. Justice Bradley in 
 the opinion delivered in that case. And within the rule there laid 
 down it was error to compel this defendant to give testimony in 
 behalf of the government. 
 
 Not questioning that such is the scope and effect of the decision 
 in Boyd v. United States, counsel for the government insists that 
 the objection is not properly preserved in the record, and, there- 
 fore, not open for our consideration. A single bill of exceptions 
 was'prepared to bring on to the record all the proceedings of the 
 trial. It gives all the testimony, the various objections and rulings 
 
 Otinmwa Bridge Co. v. Corrigan, 251 Mo. 667, 158 S. W. 39 (1913) ; Boyd v. 
 Kellog. 121 Md. 42, 88 Atl. 30 (1913) ; State ex rcl. Bisseberg v. Olson, 124 
 Minn. 537, 144 N. W. 755 (1914) ; Breen v. Kennedy, 158 Wis. 48, 147 N. W. 
 996 (1914) ; Robertson v. Cockrell, 209 Fed. 843 (1014)- 
 
 Where the trial is by the court, see Ihint v. Bloomer, 13 N. Y. 341, 12 
 How. Pr. (N. Y.) 567 (1856). ^ . . , , 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted.
 
 LEES V. UNITED STATES 853 
 
 during its admission, the instructions asked, the charge of the court, 
 and the exceptions thereto, and closes with these words : 
 
 "And thereupon the counsel for the said defendants did then 
 and there except to the aforesaid charge and opinion of the said 
 court, and inasmuch as the said charge and opinion, so excepted to, 
 do not appear upon the record : 
 
 "The said counsel for the said defendants did then and there 
 tender this bill of exceptions to the opinion of the said court, and 
 requested the seal of the judge aforesaid should be put to the same, 
 according to the form of the statute in such case made and pro- 
 vided. And thereupon the aforesaid judge, at the request of the 
 • said counsel for the defendants, did put his seal to this bill of ex- 
 ceptions, pursuant to the aforesaid statute in such case made and 
 provided tliis fourteenth day of May, 1889. 
 
 "(Signed) William Butler. (Seal)" 
 The objection is that it nowhere appears, by any direct certifi- 
 cate of the judge, by whom John S. Lees was called to testify, or on 
 whose behalf, or that any objection was made and overruled, or any 
 exception taken. Counsel says in his brief: "It is plainly evident 
 that the bill of exceptions was designed, as it states, to introduce 
 into this record only the charge and opinion of the court, and did 
 not relate to any of the innumerable other matters, as to which it 
 appears that the right to except was reserved at the time of their 
 occurrence, and memoranda entries made at the time for future bills 
 of exception, should they hereafter be deemed advisable. But the 
 purpose to introduce these matters by such bills of exceptions seems 
 to have been abandoned ; at any rate, no such bills appear in this rec- 
 ord, and these matters can not, therefore, be considered by the 
 court." 
 
 There is some plausibility in this contention, inasmuch as the 
 two sentences prior to the last, quoted above from the bill of excep- 
 tions, suggest, at least, that the purpose of counsel for defendants 
 was simply to preserve exceptions to the charge, and that the authen- 
 tication of the judge was requested for that alone. But whatever 
 of force tliere is in this implication is overborne by the statement in 
 the last sentence of what the judge did. By his signature and seal 
 lie authenticated the bill of exceptions, as prepared and presented to 
 him. And all the facts and matters stated in that bill are by such 
 authentication brought into the record for all purposes for which 
 they may legitimately be used. 
 
 The bill is a single bill of exceptions, commencilig with the open- 
 ing of the trial and ending with the charge of the court, and as 
 such it is authenticated. And that, by this bill errors other than 
 those in the charge were sought to be preserved, is made clear by 
 the fact that, in the assignments of error filed with the bill, there 
 are separate allegations of error in respect to the rulings of the court 
 in the admission of testimony. It is well settled that, instead of 
 preparing separate bills for each separate matter, all the alleged 
 errors of a trial may be incorporated into one bill of exceptions. 
 Pomeroy v. Bank of Indiana, i Wall. (U. S.) 592, 600, 601, in
 
 S5 |. Arrr.AL axd euror 
 
 which it was saki: "Many exceptions may be inserted in cwie bill 
 of exceptions, and, of course, it is stifiicient if the bill of exceptions 
 is scaled at the close, Accordinc^ly, the practice, in the lirst and sec- 
 ond circuits, is to put every exception taken at the trial into one bill 
 of exceptions, which makes the records less voluminous. "^° See also 
 Chatcauc]ay Iron Co., Pctllioncr, 128 U. vS. 5.14. It does not, how- 
 ever, follow tliat, because all rulings excepted to at the trial may be 
 incorporated into one bill of exceptions, all the proceedings at the 
 trial ought to be stated at length. On the contrary, we frequently 
 find all tlie testimony set out in such a bill when it can serve no use- 
 ful purpose, and simply encumbers the record. Only so much of the 
 testimony, or the proceedings, as is necessary to present clearly the 
 matters at law excepted to should be preserved in a bill of excep- 
 tions. If counsel would pay more attention to this, they would often 
 save this court much unnecessary labor, and their clients much need- 
 less expense. Of course, in this case, as in all similar cases, there 
 remains an inquiry as to the scope and sufficiency of any particular 
 objection or exception disclosed by the bill. All that is meant by 
 this ruling is that the objection or exception thus noted is before us 
 for consideration for whatever it is worth. And, turning to the ex- 
 ception now under consideration, it is specific and direct to the one 
 error of compelling the defendant to be a witness against himself. 
 It is not like that in Railroad Company v. Varnell, 98 U. S. 479, 
 where the exception ran a whole page of the court's charge, nor was 
 it as in Hanna v. Maas, 122 U. S. 24, an objection without any excep- 
 tion to the court's ruling, but a distinct objection to a specific matter 
 presented, considered, and overruled, and the ruling excepted to. 
 It was, therefore, sufficient to bring to the consideration of tliis 
 court the error alleged.*^ 
 Judgment reversed. 
 
 ^'Accord : Stewart V^ Huntlnaton Bank. 11 Serp-. & R, (Pa.) 267, 14 Am. 
 Dec. 628 (1 824 rr&r^tc'<?r v. Isisk, 12 How. Pr. (N. Y.) 481 (1856) ; Anderson 
 v. Ames, 6 Iowa 4S6 (1858) ; Associates of Jersey Co. v. Davison, 29 N. J. L. 
 415 (i860) ; Norfolk &^IV. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811 (1895) ; 
 R osenthal v. Ehrlichcr. i^A Pa. .'^9 6. 26 Atl. 435 (1893) ; Council v. O' lYeit I. _ i%4- 
 gr fSt 58 3_j26 Atl. 607 ( 180-^) : Polcv v. Phila. Rapid Transit Cjh. 240 Pa. ^09, 
 ^7 Atl. 289 (1913) ; First Nat. Bank v. l-ox, 40 App. (D. C.) 430 (i973)- 
 Contra : Tall v. Steam Packet Co., 90 Md. 248, 44 Atl. 1007, 47 L. R. A. 120 
 (1899) ; Baltimore & Ohio R. Co v. Ruetcr, 114 Md._6S7, 80 Atl. 220 (1911) ; 
 Citizens Mut. Fire Ins. Co. of Cecil County v. Conozvingo Bridge Co., 116 Md. 
 422, 82 Atl. 372 (1911) ; and see Flainlin v. Budge, 56 Fla. 342, 47 So. 825 
 (1908). 
 
 *°Under the statute of Westminster II, a bill of exceptions is settled by- 
 stating in a condensed and narrative form such, and only such, material facts 
 as are necessarv for the determination of the point of law raised. Ex parte 
 
 Jones, 8 Cow. (N. Y.) 123 (1828) ; Thnrnn^ ffV;>/;/ O Spr^r R, R (P^ ^ 8? 
 
 (1822) ; Carey v. Giles, lo Ga. i (1851) ; Karasicli v. ffashroucli, 28 Wis. 569 
 C1871) ; Hickman v. Jones, 76 U. S. 197, 19 L. ed. 551 (1869) ; Harvey v. Van 
 DeMark, 71 111. 117 (1873) ; Hanna v. Maas, 122 U. S. 24, 30 L. ed. 11 17 
 (1886) ; Alexander v. Williamson, 85 Ga. 13, 12 S. E. 182 (1890) ; Grisell v. 
 Noel Bros., 9 Ind. App. 251, 36 N. E. 452 (1893) ; Caldzvell v. Parks, 50 Cal. 
 502 (1875) ; Baltimore R. Co. v. Fitzgerald, 2 App. D. C. 501 (1894) ; Ryder 
 V. Jenkins, 163 Mass. 536, 40 N. E. 848 (1895) : Whaley v. Vidal, 26 S. Dak. 
 300. 128 N. W. 331 (1910) ; In re Horan, 207 Mass. 256, 93 N. E. 581 (1911) ; 
 Halm V. Mackay, 63 Ore. 100, 126 Pac. 12 (1912) ; Doylestoivn Agriculture
 
 SIXES V. RANSOM 855 
 
 SIKES V. RANSOM 
 
 Supreme Court of New York, i8io 
 
 6 Johns. (N. y.) 279 
 
 This was an application to the court for a mandamus to the 
 judges of the Ostego common pleas, to amend a bill of exceptions, 
 according to the truth of the case.^^ 
 
 Per Curiam. (Kent, C. J.) : The application is entirely new; 
 and it becomes a question whether this court can interfere when a 
 court below refuses to seal a bill of exceptions. The books do not 
 furnish much light on this subject. The practice, in England, under 
 the Stat, of Westm. II (of which ours is a copy), seems to be, 
 to apply to the court of chancery, for a writ grounded upon the 
 statute. The form of the writ is to be found in the register ; ( 182 
 a)*^ and Lord Redesdale, in the case of Lessee of Lawlor v. Murray, 
 I Sch. and Lefroy 75, calls it a mandatory writ, "a sort of pre-roga- 
 tive writ;" that the judges to whom it is directed, must obey the 
 writ, by sealing the exceptions, or make a special return to the 
 king in chancery.*^ The writ, after reciting the complaint, com- 
 mands the judges si ita est, tunc sigilla vestra, etc., et hoc sub peri- 
 culo quod incumbit nullatenus omittatis. What that peril is, within 
 the purview of the writ, does not distinctly appear ; though the books 
 speak of an action on the statute, at the instance of the party ag- 
 grieved. (Show. P. G., 117.) In the Rioter's Case, i Vern. 175, 
 a precedent was produced, where, in a like case, such a mandatory 
 writ had issued out of chancery, to the judge of the sheriff's court 
 in London. But, though no instance appears, of such a writ issuing 
 out of the K. B. when an inferior court refused to seal a bill of ex- 
 ceptions, there is no case denying to that court the power to award 
 the writ. It is, in effect, a writ of mandamus, and it is so termed in 
 the books. (Bac. Abr. tit. Mandamus, E.) A mandamus is a pre- 
 rogative writ. It ought to be used where the law has established no 
 
 Co. V. Brack etf, 109 Maine 301, 84 Atl. 146 (1912) ; Cornell-Andrews Smelt- 
 ing Co. v. Boston & P. R. Corp., 215 Mass. 381, 102 N. E. 625 (1913) ; West 
 V. McDonald, 67 Ore. 551, 136 Pac. 650. A stenographer's transcript of 
 the testimony is not a bill of exceptions. Keady v. United Ry., 57 Ore. 32^ 
 108 Pac. 197 (1910) ; Cincinnati Tr. Co. v. Rccbiisch, 192 Fed. 520 (1912). 
 But may be incorporated in the bill of exceptions by the practice in som^ 
 jurisdictions. Wagoner v. Wilson, 108 Ind. 210, 8 N. E. 925 (1886) ; Biq 
 Creek Co. v. Wolf, 138 Ind. 496, 38 N. E. 52 (1894) ; Sanders v. Mississippi, 
 74 Miss. 531, 21 So. 299 (1896); Connell v O'Neil. 1^4 Pa S t. 582, 26 Atl. 
 607 (1893) lYoast V. Beattv. 12 Pa. Super. Ct. 219 (1899) ; Foley v. Philadel- 
 phia Rapid Transi tjCa ^24o'Pa. 169, 87 A tl. 289 (1913). 
 
 ""ParT of the opinion is omitted. ~ 
 
 ^See translation of writ in note to Drexel v. Man, 6 Watts & S. (Pa.) 
 386, 40 Am. Dec. 573 (1843). 
 
 ^''In Drexel v. Mann. 6 Watts & S. (Pa.) -^86 . 40 Am. Dec. 573 (1843), 
 it is said by Gibsoh.'c. J.: "Such a remedy certainly resembles an alternative 
 mandamus, still it is not a prerogative writ, but specific, grounded on a 
 statute." Accord: Conrovi' v. Schloss. <^^ Pa. St. 28 (1867); and see Haines 
 V. Commonwealth, 99 Pa. St. 4iQ_(i882).
 
 1^5^^ ATPKAL AXn F.KROR 
 
 specific remedy; anil \vIicro, in justice ami j^ood .q-ovcrnmcnt, there 
 ouirht to be one. Why can not the writ in question issue from this 
 court ? We have the general superintendence of all inferior courts ; 
 and arc bound to enforce obedience to the statute, and to oblige 
 subordinate courts and magistrates to do those legal acts which it is 
 their duty to do. The mandamus, as was observed in tlie case of 
 77a' A';;;(/ v. Baker, 3 Burr. 1265, has, within the last century, been 
 liberally interposed, for the benefit of tlic subject, and the advance- 
 ment of justice. There is no reason why the awarding of this par- 
 ticular writ does not fall within the jurisdiction of this court, or why 
 it should be exclusively confined to the court of chancery. It would 
 be equally in the alternative, quod si ita est, to seal the bill of ex- 
 ceptions ; and if it be returned quod non ita est, tlie answer would be 
 sufficient; and the party if aggrieved, would be put to his action for 
 a false return. If complaint should be made against this court, or 
 one of its judges, for refusing to seal a bill of exceptions, then the 
 writ must, ex necessitate, come from chancery,^" if anywhere; but in 
 no other case can it be indispensable. 
 
 But, though the court are of opinion that they have jurisdiction 
 in this case, yet there does not appear to be sufficient ground dis- 
 closed to justify their interference.^^ 
 
 Motion denied. 
 
 ^But compare The Rioters Case, i Vern. 175 (1683). A motion was 
 made that the Lord Keeper would grant a mandatory writ to the Chief 
 Justice of the Kinp's Bench to command him to sign a bill of exceptions. 
 The Lord Keeper denied the motion : "for that the precedent they produced 
 was to an inferior court, and he would not presume, but the Chief Justice 
 of England would do what should be just in the case." 
 
 "Whatever the nature of the remedy, whether true mandamus or a 
 statutory proceeding akin to mandamus, the appellate court has power to 
 compel the trial court to settle a bill of exceptions. Y. B. 11 Hen. IV 52; 
 Fitz. N. B. 21 ; 2 Co. Inst. 427; Bridgman v. Holt, Shower P. C. in ; Lawlor 
 V. Murray, I Sch. & L. 75 (1803) ; People v. Jjidges, i Caine (N. Y.) 511 
 (1804) ; Bronssart v. Tralian, 3 Martin (La.) 714 (1815) ; Springer v. Peter- 
 son, I Blackf. (Ind.) 188 (1822); Delavan v. Boardman, 5 Wend. (N. Y.) 
 132 (1830) ; Ex parte Crane, 5 Pet. (U. S.) 189, 8 L. ed. 92 (1831) ; People v. 
 Jameson, 40 111. 93, 89 Am. Dec. 2i?>7 (1867) ; Etheridge v. Hall, 7 Port. (Ala.) 
 47 (1838) ; People v. Pearson, 3 111. (2 Scam.) 189, 3;^ Am. Dec. 445 (1839) ; 
 I2r£X rl V May, (\ Watt s & S. (Pa.) 386, 40 Am. Dec. 573 (1843) ; People v. 
 Baker, 35 Barb. (N. Y.) 105 (1861) ; Qpnrow v^ Scldoss^^S^I'a. SLj2S (1867) ; 
 Marsh v. Hand, 35 Md. 123 (1871) ; Douglass v. Loomis, 5 W. Va. 542 (1871) ; 
 Jelley v. Roberts, 50 Ind. I (1875) ; Benedict v. Hozvell, 39 N. J. L. 221 (1877) ; 
 Page v. Clapton, 30 Grat. (Va.) 415 (1878) ; Henry v. Davis, 13 W. Va. 230 
 (1878) ; People v. VanBuren, 41 Mich. 725 49 N. W. 924 (1879) ; State v. 
 Weaver, 11 Nebr. 163, 8 N. W. 385 (1881); State v. Hazves, 43 Ohio St. 16 
 (1885) ; People v. Anthony, 129 111. 218, 21 N. E. 780 (1889) ; Swarts v. Nash, 
 45 Kans. 341, 25 Pac. 873 (1891) ; Collins v. Christian, 92 Va. 731, 24 S. E. 
 472 (i8q6) ; State v. Snecd, 105 Tenn. 711, 58 S. W. 1070 (1900) ; Houghton 
 v. Superior Court, 128 Cal. 352, 60 Pac. 972 (1900) ; Taylor v. Reese, 108 Ga. 
 379. 2>2> S. E. 917 (1899) ; Sears v. Candler, 112 Ga. 381, 2>7 S. E. 442 (1900) ; 
 State V. Gibson, 187 Mo. 536, 86 S. W. 177 (1904); Morgan v. Kent Circuit 
 Judge, 150 Mich. 64, 113 N. W. 583 (1907) ; Harper v. Judge, 155 Mich. 543, 
 119 X. W. 913 (1909) ; Springfield v. Fulk, 96 Ark. 316, 131 S. W. 694 (1910) ; 
 Brode v. Goslin, 158 Cal. 699, 112 Pac. 280 (1910) ; Beck v. Great Northern 
 Ry. Co., 115 Minn. 259, 132 N. W. i (1911) ; Daznes v. Rose-Marshall Coal 
 Co., 74 Wash. 565, 134 Pac. 180 (1913). But not to settle it in a particular 
 manner when there is a dispute as to the incidents of the trial. The presid-
 
 HUBBARD V. CHAPMAN 857 
 
 HUBBARD V. CHAPMAN 
 
 Supreme Court of New York, Appellate Division, 1898 
 
 28 App. Div. (N. Y.) 577 
 
 Motion by the plaintiff to dismiss an appeal taken by the de- 
 fendant. 
 
 Hatch, J. : The appellant made and served a case which he 
 calls a "proposed case and exceptions." It is evident that by this 
 proposed case the appellant only seeks to review certain rulings of 
 the court in receiving certain testimony, offered by the respondent 
 upon the trial, and for this purpose the case as proposed states that 
 "evidence was offered by the plaintiff" tending to prove," etc. Then 
 follows a statement of the evidence, and the objection thereto, and 
 the ruling of the court thereon. 
 
 We think that this is a case contemplated by section 997 of the 
 Code of Civil Procedure, which provides : 
 
 "When a party intends to appeal from a judgment rendered 
 after a trial of an issue of fact, or to move for a new trial of such 
 an issue, he must, except as otherwise prescribed by law, make a 
 case, and procure the same to be settled and signed by the judge 
 . . . by or before whom the action was tried, as prescribed in the 
 General Rules of Practice. . . . The case must contain so much 
 of tue evidence and other proceedings upon the trial as is material 
 to the questions to be raised thereby, and also the exceptions taken 
 by the party making the case." 
 
 ing judge must say whether or not an exception was taken and his return 
 controls ; the suggested remedy being an action for a false return. Tzveed v. 
 Davis, I Hun. (N. Y.) 252, 47 How. Pr. (N. Y.) 162 (1874) ; State v. Todd, 
 4 Ohio 351 (1831) ; Benedict v. Howell, 4 Ohio 351 (1831) ; State v. Small, 
 47 Wis. 436, 2 N. W. 544 (1879) ; Cmnmings v. Armstrong, 34 W. Ya. I, il 
 S. E. 742 (1890) ; Sea Ins. Co. v. St. Louis Ry., 103 Ark. 503, i^ S. W. 251 
 (1912). 
 
 By statute in some states if the judge disallows or fails to sign excep- 
 tions duly tendered, the party aggrieved may establish his exceptions in the 
 appellate court. Bottum v. Fogle, 105 Mass. 42 (1870) ; J^iorse v. Woodworth, 
 155 Mass. 2:iT„ 27 N. E. loio, 29 N. E. 525 (1891) ; Clemens Electrical Mfg. 
 Co. V. Walton, 173 Mass. 286, 52 N. E. 132, 53 N. E. 820 (1898) ; Crow v. 
 Minor, 85 Cal. 214, 24 Pac. 640 (1890) ; Baird V. Glcckler, 3 S. Dak. 300, 52 
 N. W. 1097 (1892); Frank v. Mallett, 92 Maine 77, 42 Atl. 238 (1898); 
 Whipple v. Prccce, 18 Utah 454, 56 Pac. 296 (1899) ; Forrester v. Boston &• 
 C. M. Co., 23 Mont. 122, 58 Pac. 40 (1899) ; Kendall v. Rossi (R. I.), 85 Atl. 
 922 (1913). In other states, also by statute, a bill of exceptions may be 
 signed by bystanders if the judge refuses to sign it. Wright v. Nichols, I 
 Bibb (Ky.) 298 (1808); Arnold v. Leathers, 2 Dana (Ky.) 287 (1834) 
 Houston v. Jones, 4 Tex. 170 (1840) ; Simon v. Weigel, 10 Iowa 505 (i860) 
 St. John V. Wallace, 25 Iowa 21 (1868) ; Hoyt v. Williams, 41 Mo. 270 (1867) 
 H eidcnheimer v. Thomas, 63 Tex. 287 (1885) ; Diamond Mining Co. v 
 Faidkner, 17 Colo. 9, 28 Pac. 472 (1891) ; Fordvce v. Jackson, 56 Ark. 594, 
 20 S. W. 528, 597 (1892) ; Williams v. Pitt, 38 Fla. 162, 20 So. 936 (1896) 
 .4ycr V. Greer, 87 Ark. 543, 113 S. W. 209 (1908) ; Cox v. Cooley, 88 Ark. 350, 
 114 S. W. 929 (1908) ; State v. Taylor, 134 Mo. App. 430, 114 S. W. 1029 
 (1908) ; Shook v. Shook (Tex. Civ. App.), 145 S. W. 699 (1912).
 
 S5S APPKAL AND ERROR 
 
 By rule 34 of the General Rules of Practice it is provided that 
 "A bill of exceptions shall only contain so much of the evidence as 
 may be necessary to present the questions of law upon which excep- 
 tions were taken on the trial, and it shall be the duty of the judge, 
 upon settlement, to strike out all the evidence and other matters 
 which shall not have been necessarily inserted." 
 
 It thus appears that the code and the rules are in harmony with 
 respect to what constitutes a case and exceptions. One refers to 
 the other, and by the express terms of each it is only required that 
 the case shall contain so much of the evidence and proceedings had 
 upon the trial as is material to present the questions and exceptions 
 which the appellant seeks to have reviewed. In this view it can 
 make no practical difference whether the evidence in terms be set 
 out, or a statement of its effect be made. The essential thing is to 
 have tlie fact appear and when this is done every requirement is met, 
 as the parties will then have everything which will protect their 
 rights, and the court be informed of all that is needful to make a 
 proper disposition of the case. While no mention is made of a bill 
 of exceptions in the code, the same is not true of the rule. But it is 
 quite evident from a reading of both that the proposed case for 
 which provision is made in the code, embrace what was formerly 
 known as a bill of exceptions.^^ 
 
 It has been the uniform desire of the court that where the ap- 
 pellant seeks only to have questions of law presented for review, the 
 case should not contain the whole of the evidence, but only so much 
 as will present the questions sought to be reviewed. Such is the 
 recommendation of the court as expressed in the decisions. °^ 
 
 The code has in no respect changed this rule, but the practice 
 in this regard remains the same as under the decisions we have cited, 
 and such practice is expressly continued by the provisions of Su- 
 preme Court Rule 34, as it is therein made the duty of the judge to 
 strike out, upon a settlement, all evidence and other matters not 
 necessarily required to present the questions sought to be reviewed. 
 
 The defendant, in his proposed case and exceptions, complies 
 with this rule, as he makes a clear statement of what the evidence 
 
 ^^Citing Winter V. Crosstown Ry. Co., 8 Misc. 362, 28 N. Y. S. 695, 59 
 N. Y. St. 598 (1894). Accord: Stiasny v. Metropolitan St. Ry. Co., 65 App. 
 Div. 268, 72 N. Y. S. 747 (1901) ; and see 3 Encyc. PI. & Pr. 881. 
 
 ■"Citing Marckwald v. Navigation Co., 8 Hun (N. Y.) 547 (1876); 
 Price v. Powell, 3 N. Y. 322 (1852) ; Bissel v. Hamlin, 20 N. Y. 519 (1859) ; 
 Jewell V. Van Steenhnrgh, 58 N. Y. 85 (1874) ; Tweed v. Davis, i Hun (N. Y.) 
 252, 47 How. Pr. (N. Y.) 162 (1874). Accord: Hodman v. Aetna Fire Ins. 
 Co., 19 Abb. Pr. (N. Y.) 325, 24 N. Y. Super. Ct. 501 (1863) ; Silver Valley 
 Min. Co. v. Smelting Co., 119 N. Car. 415, 26 S. E. 27 (1896); Zticher v. 
 Bhimenthal, 58 N. Y. S. 318 (1899) ; Douglas v. GlarAer, 9 N. Dak. 615, 84 
 N. W. 552 (1900) ; IVierichs v. Innis, 32 Misc. 462, 66 N. Y. S. 553 (1900). 
 Evidence should be incorporated in a condensed and narrative form. Bat- 
 tersby v. Abbott, 9 Cal. 565 (1858) ; Bargcr v. Halford, 10 Mont. 57, 24 Pac. 
 699 (1890) ; Donai v. Lutjens, 20 Misc. 221, 45 N. Y. S. 364 (1897) ; State v. 
 Otis, 71 Minn. 511, 74 N. W. 283 (1898); Watson v. Duncan, 29 Misc. 447, 
 60 N. Y. S. 755 (1899) ; Peoples v. Evans, 50 Tex. Civ. App. 225, in S. W. 756 
 C1908) ; Pulcino v. Long Island R. Co., 125 App. Div. 629, 109 N. Y. S. 1076 
 (1908) ; Twiggs v. Williams, 98 S. Car. 431, 82 S. E. 676 (1914) ; Donahoe v. 
 Adebar, 34 S. Dak. 471, 149 N. W. 175 (1914).
 
 HUBBARD V. CHAPMAN 859 
 
 tended to establish, followed by the objection, the ruling of the 
 court thereon, and the exception to such ruling. So that in this 
 respect the point sought to be raised is clearly intelligible, and gives 
 notice to tlie respondent of the precise question which the appellant 
 seeks to have reviewed. 
 
 The remedy of the respondent is clear. If the statement as thus 
 made does not conform to the facts as they appeared on the trial, 
 and upon which the ruling w^as based, he is authorized to propose, 
 by way of amendment, such further statement, if any, as he claims 
 the evidence established, in order that the statement may contain the 
 precise facts upon which the ruling of the court v/as based.^* This 
 remedy protects every right of the respondent and enables him to 
 have inserted all that is essential to show the correctness of the 
 ruling, if the facts appearing upon the trial establish such result. 
 
 We think that the appellant in this case complied with the pro- 
 visions of the code and the rules, and the settled practice there- 
 under, as adjudicated in the numerous decisions which have arisen 
 upon the question. ^^ 
 
 It follov/s that the motion should be denied, with ten dollars 
 costs and disbursements, with leave to the respondent to serve such 
 proposed amendments to the case as he shall be advised. 
 
 All concurred. 
 
 ^Stuart v. Binsse, 3 Bosw. (N. Y. Super. Ct.) 6^7 (i8^g) ; Tyng y. Marsh, 
 <^i How. Pr. (N. Y.) 46s (1876) ; M. K. & T. R. Co. v. Roach, 18 Kans. 592 
 (1877) ; RcnvAck v. Elevated R. Co., 59 N. Y. Super. Ct. 96, 13 N. Y. S. 600 
 (1891) ; Warhurton v. Ralph, 9 Wash. 537, 38 Pac. 140 (1804) 
 
 ^'See further Jackson ex dem. Field v. Sinclair, 4 Cow. (N. Y.) 43 
 (1825) ; Jackson v. Harrington, 4 Cow. (N. Y.) 537 (1825) ; Green v. Russell, 
 
 I How. Pr. (N. Y.) 8 (1844) ; Johnson v. Whitlock, 13 N. Y. 344, 12 How. 
 Pr. (N. Y.) 571 (1856) ; Smith v. Grant, 15 N. Y. 590 (1857) ; Westcott v. 
 Thompson, 16 N. Y. 613 (1858) ; Graham v. Stewart, 68 Cal. 374, 9 Pac. 555 
 (1886) ; Sullivan v. Thomas, 3 S. Car. 531 (1872) ; Tuxhury v. French, 39 
 Mich. 190 (1878); Mnllaney v. Humes, 47 Kans. 99, 27 Pac. 817 (1891); 
 People v. Featherly, 131 N. Y. 597, 30 N. E. 48 (1892) ; Delaney v. Valentine, 
 
 II App. Div. 316, 42 N. Y. S. 571 (1896) ; Parrault v. Marsant, 9 Kans. App. 
 419, 58 Pac. 1027 (1809) ; Gregory v. Clark, 53 App. Div. 74, 65 N. Y. S. 687 
 (1900) ; IJ'ierichs v. Innis, 32 Misc. 462, 66 N. Y. S. 553, 8 N. Y. Ann. Cas. 
 122 (1900) ; Harvin v. Blackman, 108 La. 426, 32 So. 452 (1901) ; Savage v. 
 Potter, 159 App. Div. 729, 145 N. Y. S. 78 (1913) ; Jermyn v. Searing, 160 
 App. Div. 832, 146 N. Y. S. 57 (1914) ; Dunlap v. Rumph, 43 Okla. 491, 143 
 Pac. 329 (1914)- 
 
 In Thompson v. Fulton, 29 Okla. 700, 119 Pac. 244 (1911), it is said, per 
 V.'^illiams, J. : "A case-made is solely a creature of the statute, and whilst 
 more comprehensive than a bill of exceptions, is a substitute therefor. The 
 office of a bill of exceptions and that of a case-made are very dissimilar. The 
 former is frenerally to bring up the record to review a decision of the court 
 upon a matter of law which the record would otherwise not show, in which 
 case it must be reduced to writing, allowed, signed, and filed at the term that 
 the decision complained of is made, except where the statute permits, on 
 order of the court, the allowing, signing and filing same out of term time. 
 Neither the pleadings nor the judgment nor orders of the court may properly 
 be included in a bill of exceptions ; nor are any of the parties entitled to 
 notice of presentation for allowance. When filed, it becomes a part of, the 
 record, and is brought up by transcript, which must include the other parts of 
 the record. As to the case-made, it may be settled, signed, and allowed
 
 S(>0 ArrKAL AND KKROR 
 
 ATKINSON V. PEOPLE'S NAT. BANK OF WATERVILLE 
 
 Supreme Judicial Court of Maine, 1893 
 
 85 Maine 368 
 
 Tliis was a writ of error to reverse a jud£:r"icnt recovered in the 
 Superior Court for Kennebec County, against the plaintiff in error 
 by the defendant in error at the December term, 1882. The defend- 
 ant pleaded in nullo est erratum, which was joined by the plaintiff. 
 
 The errors alleged are: First, the writ in said suit in which 
 judgment was rendered was not signed by the clerk of the superior 
 court and the proceedings are void, having no legal foundation what- 
 ever; second, the court rendering said judgment had no jurisdiction, 
 to render the same, the process upon which it was rendered being 
 void for want of a legal writ, said writ not having been signed by 
 the clerk of the court which rendered said judgment. 
 
 The original writ bears date January 5, 1882, and purported to 
 be signed by \V. M. Stratton, who, defendants admitted w\as not 
 clerk at that time, and whose term of ofBce had expired more than 
 a vear previously. ^^ 
 
 ' Emery, J.: At common law tlie usual writ of error (coram 
 vobis) issued out of the writ office in chancery to the court whose 
 record in the particular case was to be examined, and_ commanded 
 that court to send the record and process in the case wnth all things 
 touching them (and also to return the writ itself), into some other 
 court, usually the king's bench, for examination and judgment. Thus 
 the writ partook of a dual nature. It operated as a writ of certio- 
 rari to the inferior court to send up its record and proceedings in 
 the case, and it also operated as a commission to the superior court 
 to inquire into and determine the legality of such record and pro- 
 ceedings. 
 
 After the return of the writ with the record and proceedings of 
 the inferior court, into the superior court, the latter court issued its 
 own writ of scire facias to the defendant in error. Upon the return 
 
 bej-ond the trial term and in vacation, but it must be complete in itself; the 
 pleadinps, judjxment, and orders of the court to be incorporated therem. 
 It must contain the matters of record, as well as the proceedings not 
 entered on the record. To present errors for review the case-made must 
 embody a statement of so much of the issue, proceedings and evidence, or 
 other matters in the action, as may be necessary to bring to the notice of 
 the ap.pellate court, from an examination of the paper settled and authenti- 
 cated as a case-made, the errors complained of. The object of the case-made 
 is to reduce the size of the record, eliminating all matters immaterial to the 
 question sought to have reviewed." 
 
 On the settlement of a case on appeal there was a dispute between 
 counsel as to whether a certain colloquy took place on the trial. The trial 
 judge decided from his recollection that such a colloquy had occurred 
 although it did not appear in the stenographer's minutes. The appellate 
 court refused to interfere with such determination. Burke v. Baker, 104 App. 
 Div. 26, 93 X. Y S. 215 (1Q03). 
 
 **Part of the statement of facts, the arguments of counsel and part of the 
 opinion of the court are omitted.
 
 ATKINSON V. people's NAT. BANK 86l 
 
 of this writ of scire facias, the pleadings were made. The plaintiff 
 assigned errors, and the defendant pleaded in nuUo est erratum, or 
 some other appropriate plea. 
 
 If the return made upon the original writ of error did not in- 
 clude the entire, completed record and proceedings in the case, the 
 superior court, upon the suggestion of either party, would issue a 
 special writ in the nature of a writ of certiorari to the inferior court 
 to send up the omitted portions. ^^ The superior court would also 
 issue this special writ of its own motion in order to supply omissions 
 and obtain enough to show a valid record. The pleadings did not 
 properly begin until the entire, completed record had been obtained. 
 
 In this case the transcript is very fragmentary. The plaintiff 
 offered only a transcript of an "abbreviated record," such as is 
 named in section ii of chapter 79, R. S., together with a copy of the 
 original process and the officer's return thereon. The defendant 
 offered only a copy of the docket entries and a copy of the pleas. We 
 have repeatedly held that the court will not pronounce a judgment 
 erroneous v/here only the abbreviated record permitted in section 
 II, chapter 79, R. S., is produced. Tyler v. Erskine, 78 Maine 91 ; 
 Lewiston Steam Mill Co. v. Merrill, 78 Maine 107. That abbre- 
 viation may suffice as evidence of a judgment where it is only 
 sought to prove its existence. Where, however, it is sought to re- 
 examine the proceedings and reverse the judgment for error, there 
 must be a full unabridged record made up so that all the proceed- 
 ings may be seen. Such a record, according to Blackstone, com- 
 prises "the original writ, and summons, all the pleadings, the dec- 
 laration, view or oyer prayed, the imparlances, plea, replication, re- 
 
 ^' "If the Judges of the common pleas, or other judges, upon a writ of 
 error, will not certify all the record, the party that sues the writ of error 
 may allege diminution of the record, and pray a writ to the justices that 
 certified the record before, to certify the whole record." Bacon's Abridgment, 
 Error (e) ; Fitz. N. B. 25 a; Yates v. Windham, Cro. Eliz. 155 (1588); 
 Meredith v. Davies, I Salk. 270 (1711) ; Andrews v. Bosworth, 3 Mass. 223 
 (1807); pawning V. Baldwin, I Serg. & R. (Pa.) 298 (1815) ; B_assler^w. 
 Nie<!ly, ^ "^^fg Xr | ^ f pa ) 472 (.1815; ; SeagravevrLacy , 28 Pa. Super. Ct. 5 86 
 (1905). The appellate court is, in the absence of a statute, with(5uF power to 
 materially amend the record. Hutchinson v. Crossen, 10 Mass. 251 (1813); 
 Thatcher v. Miller, 13 Mass. 270 (1816) ; Wood v. Newkirk, 15 Ohio St. 295 
 (1864) ; Wells V. Smith, 49 W. Va. 78, 38 S. E. 547 (1901) ; Tighe v. Mary- 
 land C. Co., 216 Mass. 459, 103 N. E. 941 (1914) ; Murphy v. Milford, 210 
 Fed. 135 (1914). But may remand for correction. Mcrriam v. Mcrriam, 
 6 Cush. (Mass.) 91 (1850) ; Stickle v. Haskins, 54 Mich. 130, 19 N. W. 919 
 (1884) : Wain y. Beaver, i6iJ^a^l^6o.S, 29 Atl. 114 (1894) ; Fitssirmnons w. 
 Robb. 177, Pa. St. 645 , .'U Atl. 233 (1896) ; Hobbs v. National Rank of Com- 
 merce of Kansas City, 93 Fed. 615 (1899) ; Withcrhee v. Taft, 47 App. Div. 
 627, 62 N. Y. S. 242 (1900). Or by certiorari require the return of a com- 
 plete transcript. Colden v. Knickcrbackcr, 2 Cow. (N. Y.) 31 (1823); 
 Kanoiise v. Martin, 2 How. Pr. (N. Y.) 252 (1846) ; Apgar v. Hillcr, 24 N. J. 
 L. 808 (1854) ; Robinson v. Varncll, 16 Tex. 382 (1856) ; Szveeny v. Lommc, 
 22 Wall. (U. S.) 208, 22 L. ed. 727 (1874) ; Flagg v. Searle^ 2I_L. I. (Pa.) 
 loi (1874); Rohrbaugh v. Bennett, 30 W. Va. 1857 3 S. E. 593 T1887TT 
 Mathews v. Booyc, 58 N. J. L. 593, 34 Atl. 754 (1896) ; Allen v. McLendnn, 
 113 N. Car. 319, 18 S. E. 205 (1893) ; Wyatt v. Crowder, 112 Ga. 168, 2>7 S. E. 
 380 (1900) ; Spedden v. Baltimore Refri-geraiing & Heating Co., 117 Md. 443, 
 84 Atl. 150 (1912-).
 
 862 APPEAL AND EKROR 
 
 joinder, continuances and whatever other proceedings have been 
 had ; all entered verbatim on the roll; also the issue or demurrer and 
 joinder therein." 3 Bl. 317. 
 
 Either party can require the clerk of tiie court to extend the 
 record without abbreviation, and give him a transcript of such com- 
 plete record. 
 
 If such a record were made and presented by transcript in this 
 case, it may appear that the matters specified as errors in the orig- 
 inal process and the return thereon, were completely waived and 
 cured by tlie defendant's appearance and pleading directly in bar to 
 tlie declaration w^ithout interposing any plea in abatement or motion 
 to dismiss. We think, therefore, we should not pronounce judg- 
 ment upon the record until the complete unabbreviated record is 
 brought before us.°^ 
 
 The plaintiff in error has, however, submitted his case upon the 
 transcript and copies produced by him. These, as above explained, 
 do not necessarily shovr any error; hence his writ of error should 
 be dismissed. 
 
 Writ dismissed. Plaintiff nonsuit. 
 
 All concur. 
 
 ^^Unless otherwise provided by rule of court or statute the case must be 
 presented to the appellate court on a transcript of the full, unabridged 
 record. Tyson v. Hylyard, 2 Ld. Raym. 1 122 (1704) ; Curtis v. Petitpain, 59 
 U. S. 109, 15 L. ed. 280 (1855) ; Miller v. Thomas, 78 Cal. 509, 21 Pac. 11 
 (1889); Kcisiu'ender v. James, 41 Kans. 463, 21 Pac. 573 (1889) ; Litchford 
 v. Day, 87 Va. 71, 12 S. E. 107 (1890) ; Lazvson v. Mills, 150 Mo. 428, 51 S. W. 
 678 (1S99) ; Mctzger v. Woolridge, 183 111. 174, 55 N. E. 694, 75 Am. St. 100 
 (1899). Statutes have provided for abbreviating the record under various 
 names such as "abstract of the record," "case settled," "case made," etc. 
 N. Y. Code Civ. Pro., §§ 997, 1339, 1353; Bissel v. Hamlin, 20 N. Y. 519 
 (1859) ; Raihvav Co. v. Stezvart, 95 U. S. 279, 24 L. ed. 431 (1877) ; Graham 
 V. Stezi-arf, 68 Cal. 374, 9 Pac. 555 (1886) ; Zv.ckcr v. Bhimcnthal, 58 N. Y. S. 
 318 (1899); Barton v. Tzi'ohy Mercantile Co., 104 Wis. 420, 80 N. W. 739 
 (1899) ; Wierichs v. Innis, 32 Misc. 462, 66 N. Y. S. 553, 8 N. Y. Ann. Cas. 
 122 (1900) ; Atchison, T. & S. F. R. Co. v. Conlon, 77 Kans. 324, 94 Pac. 148 
 (1908) ; Electric Welding Co. v. Prince, 200 IMass. 386, 86 N. E. 947 (1909). 
 But while the details of the specific requirements are controlled by the local 
 statutes and rules, it is a general principle tliat the record, transcript or case 
 must be complete in itself, containing all matters necessary for an intelligent 
 review by the appellate court of the errors alleged. Darrozv v. Langdon, 20 
 Conn. 288 (1850); Brindle v. Brindle, 50 Pa. St. 387 (1865); Glidden v. 
 Packard, 28 Cal. 649 (1865); Ehrman v. Rothscliild, 23 Hun (N. Y.) 273 
 (1880) ; U'erlan v. SchoUctt, 63 Tex. 227 (18S5) ; Raimond v. Terrebonne 
 Parish, 132 U. S. 192, 33 L. ed. 309 (1889) ; Haynes v. Cape May, 52 N. J. L. 
 180, 19 Atl. 176 (1889) ; Perry's Estate, 42 S. Car. 183, 20 S. E. 84 (1894) ; 
 Adams v. Bement, 96 Ky. 334, 29 S. W. 22, 16 Ky. L. 676 (1894) ; Cook v. 
 Challis, =;q Kans. 363, 40 Pac. 643 (1895) ; h'inrh v. Cn7}irnAii^-Ji^J27i SL.S^'^j 
 26 Atl. 368 (1893) ; IVondzi'ard v. Hrixt, t8o Pa. St. l6l ^^^6Atl. 645 (1897) I 
 White v. White, 169 Mass. 52, 47 N. E. 499 (1897) ; Inhabitants of Nezu Bar- 
 horough v. Brezver, 170 Mass. 162 (1898) ; McLaughlin v. Davis, 64 N. J. L. 
 360, 45 Atl. 067 (1899) ; Corsiglia v. Bnrnham, 189 Alass. 347, 75 N. E. 253 
 (1905) ; National Lumber Co. y. Mchaffey, ^ , Pa .Siip pr. Ct. 544 ( 1906) ; 
 Doust v. l^ocky Mountain bell 1 elephond Co., 14 Idaho 677, 95 Pac. 209 
 (1908) ; Caldwell v. Klyce, 80 Wash. 469, 141 Pac. 1042 (1914). 
 
 For modem English practice see Rules of Supreme Court, Order LVIII, 
 rule II.
 
 LAMY V. LAMY 863 
 
 SECTION 5. ASSIGNMENTS OF ERROR 
 
 LAMY V. LAMY 
 
 Supreme Court of New Mexico, 1887 
 
 4 N. Hex. 43"' 
 
 Long, C. J. : This cause is here by writ of error under section 
 2194 of the Compiled Laws. Praecipe for writ was filed August 25, 
 and it issued September 30, A.. D. 1885. A transcript of the pro- 
 ceedings in the court below was filed with the clerk of this court, 
 and the cause docketed December 23, 18S5. The Supreme Court, at 
 its last term, convened on the fourth day of January, A. D. 1886, 
 and on the second day of that term the defendant in error appeared, 
 and on the same day leave was asked by the plaintiff for time in 
 which to file brief, and it was given. On the eighth day of January, 
 within the time so extended, plaintiff filed his brief. To that d.d.\e: 
 tliere was no assignment of error, and four days of the term had 
 expired. The printed brief is in the usual form. Its title page con- 
 tains the name of the court and the term wherein the cause is pend- 
 ing, and the words "Brief of Plaintiff in Error," with the signa- 
 ture of the solicitor who appeared for him. The brief contains 
 subdivisions printed under prominent headlines as follows : "State- 
 ment of the Cause," "Assignment of Errors," "Points and Authori- 
 ties." Following the first subdivision is a narration of. the proceed- 
 ings in the court below as shown by the records. Under the words 
 "Assignment of Errors" is a statement that the court below erred 
 in six particulars, which are named, and then follow the points and 
 authorities relied upon, and the signature of the plaintiff's solicitor as 
 such. 
 
 It is not contended by plaintiff' that the cause was not returnable 
 at the January term, A. D. 1886, but he claims that his brief is, 
 in legal effect, an assignment of errors ; and, although not filed 
 until the fourth day of that term, the court should not for that 
 reason disregard it. On the other hand, the defendant moves to dis- 
 miss the writ for the alleged reason tliat plaintiff did not assign error 
 on or before the first day of the January term, A. D. 1886; and the 
 question for the court now to determine is whether or not this mo- 
 tion shall be sustained. 
 
 It is clear that error was not assigned "on or before the first 
 day of the term at which the cause is returnable." There is no claim 
 or pretense of assignment within that time. Unless the contents 
 of the brief can be regarded as an assignment of error, there is none 
 at this time. 
 
 Can the brief be treated as such an assignment as the law re- 
 quires? Bouvier defines a brief to be "an abridged statement of 
 the party's case," "a summary of the points or questions in issue." 
 
 ""Part of the opinion is omitted. A motion to reconsidGr was overruleo' 
 Territory v. Ashenfelter, 4 N. Mex. 93, 12 Pac. 879.
 
 8()4 Arrr.AT. and f.rror 
 
 "This statement sluniUl be perspicuous ami concise." In general 
 los^al usajje. a brief is in no sense a pleatlinji^. It contains a state- 
 ment of the facts shown by the record, and tlie points, authorities, 
 and arg^uments rehed upon to sustain the contention presented for 
 consideration. It is in the nature of an argument. 
 
 W'liat is an assignment of error? "In practice, the statement 
 of the case of the i^laintiff, setting forth the errors complained of. 
 It corres])onds with the declaration in ordinary actions.*"* All the 
 errors of which the plaintiff complains should be set forth and as- 
 signed in distinct terms, so that the defendants may plead to them." 
 Bouv. 197. "An assignment in error is in the nature of a declara- 
 tion, and is either of errors in fact, or errors of law." 2 Tidd Pr. 
 1 168. "To an assignment of errors the defendant may plead or de- 
 mur." 2 Tidd Pr. 1173. "Issue being joined in error, the proceed- 
 ings are entered of record." 2 Tidd Pr. 1175, 1176. "In the house 
 of lords, when the defendant hath joined in error, the cause is set 
 down to be heard in turn." 
 
 The author of Powell on Appellate Proceedings, after discussing 
 the manner in which cases may be carried into the appellate court, 
 proceeds : "The next matter in the course of procedure is the plead- 
 ings of the parties preparatory to their coming to a hearing. These 
 pleadings consist, on the part of the plaintiff, of his assignment of 
 those errors of which he complains, and, on the part of the defend- 
 ant, his pleas or answers thereto." "Assignment of error is as in- 
 dispensable in these proceedings as a declaration and cause of action 
 in the original cause." Powell, App. Proc. 277. To the errors so 
 assigned the defendant must plead or demur within the time allowed 
 by the rules of the court. Powell, App. Proc. 280. 
 
 In Hinkle v. Shelley, 100 Ind. 89, it is held: "In this court the 
 assignment of error is the complaint of the appellants, and, like a 
 complaint in the trial courts, it must be good as to all who join 
 therein, or it will be good as to none." See also Rohhins v. Magee, 
 96 Ind. 176, to the same point. 
 
 "An assignment of error is indispensable. It is a pleading upon 
 which an issue is to be made by demurrer, joinder or plea." Wells v. 
 Martin, i Ohio St. 388. 
 
 Authorities to the same effect could be multiplied. It is appar- 
 ent that an assignment of error is in the nature of a pleading, and, 
 while it might properly be copied into the brief as a part of the state- 
 ment of the cause, it should be made in some more formal way. It 
 may be much doubted whether it is good or ])ermissible practice to 
 omit a formal assignment, relying on the recitals of the brief to 
 supply the omission.^^ 
 
 *"Accord: Williston v. Fisher, 28 III. 43 (1862) ; Kinnon v. Louisville & 
 N. R. Co., 187 Ala. 480, 65 So. 397 (1914) ; Live Stock L Assn. v. Edgar 
 56 Ind. App. 489, 105 N. E. 641 (1914). 
 
 •^The brief or paper book is no part of tbe record, but a convenient mode 
 of presenting the case for the consideration of the court. Errors assigned 
 in the brief only will not be considered. Armstrong's Appeal, 68 Pa. St. 409 
 ( 1871) IVitherspoonw. Crawford (Tex. Civ. App.;, i53'S7"W.6j3 (1912). And 
 ' f-nerally the assignments of error must be incorporated in the record. Gibhs
 
 LAMY V. LAMY 865 
 
 It is not necessary to decide whether the plaintiff's brief con- 
 stituted an assignment of errors, as that was not filed until the fifth 
 day of tlie term. It is apparent, however, from the authorities cited, 
 that the assignment of errors is in the nature of a pleading. It 
 is the foundation of the plaintiff's cause in this court, and without 
 it he can have no standing here. To this assignment the court must 
 look for the questions to be determined. Upon it the issue is made. 
 In this cause there is no record of any such pleading. There is no 
 application to the court, showing an excuse for omitting to assign 
 errors at an earlier day, for leave to now assign them. 
 
 It is, however, contended by plaintiff that the recital in the 
 brief is at least evidence that an effort was made in good faith to 
 comply wdth the statute, and therefore that good cause is shown for 
 a failure to make a strict compliance therewith. If the defendant's 
 motion were to dismiss because no assignment of error was made 
 on the fifth day of the term, the argument might have some force. 
 It is not, however, perceived how an effort to assign errors on the 
 fifth day of the term can constitute any excuse for failure to do so 
 on the first day. Ten days passed between the date when the tran- 
 script was filed and the commencement of the term, and no reason 
 whatever is given for failure, within this period, to make the neces- 
 sary assignment. In addition, four more days passed, and no leave 
 was asked for time within which to assign errors, nor was any cause 
 shown why they were not assigned before, nor cause given for de- 
 lay. The interests of the bar and of litigants will be best stibserved 
 by holding a reasonably strict rule ; otherwise, a lax, irregular prac- 
 tice will prevail, tending to confusion and delay. The requirements 
 of the statutes are in such clear terms as to preclude misapprehen- 
 sion. The authorities define beyond doubt the character and office 
 of an assignment of error. Under such conditions, the failure to 
 comply with a clear and obvious requirement can not constitute 
 such an excuse as to invoke the discretion of the court to relax the 
 rule of the statutes. Discretion can not, or at least should not, be 
 exercised so as to create delay, without facts upon which to predi- 
 cate the excuse of discretion. 
 
 The motion of the defendant is sustained, the writ of error is 
 dismissed, and the costs occasioned thereby taxed against the 
 plaintiff.^- 
 
 Brinker and Henderson, JJ., concur. 
 
 V. Black-well, 40 111. 51 (1867) ; Deputy v. Hill, 85 Ind. 75 (1882) ; Cameron v. 
 Roemele, 59 Tex. 238 (1883) ; Moore v. Hammons, iig Ind. 510, 21 N. E. iiii 
 (1889) ; Schmitz v. Hcgcr, 5 N. Dak. 165, 64 N. W. 943 (1895) ; Martin v. 
 Terry, 6 N. Mex. 491, 30 Pac. 951 (1892). In some jurisdictions a statement 
 of the errors in the brief is sufficient. McRcavy v. Eshleman, 4 Wash. 757, 
 31 Pac. 35 (1892) ; Haiigh V. Tacoma, 12 Wash. 386, 41 Pac. 173 (1895) ; 
 Donnell M. Co. v. Hart, 40 Mo. App. 512 (1890) ; Davis v. Barada-Ghio Real 
 Estate Co., 163 Mo. App. 328, 143 S. W. 1108 (1911), semble. 
 
 "'The general rule is that questions not presented by the assignments of 
 error will not be considered. Prescott v. Tarbcll, i Mass. 204 (1804) ; Pem- 
 broke V. Abiugton, 2 Mass. 142 (1806) ; Moody v. Vreeland, 7 Wend. (N. Y.) 
 55 (1831) ; tucker v. Ellis, i Ark. 273 (1839) ; Adams v. Mtinson, 3 How. 
 (Miss.) -/J (1838); Martin v. Russell, 4 111. (3 Scam.) 342 (1841) ; 
 
 55 — Civ. Proc.
 
 866 APPEAL AND ERROR 
 
 CAYUGA BUILDING & LOAN ASSN. v. MacMULLEN 
 
 Superior C ourt of Pennsyl vania, 191 1 
 
 46 Pa. Super. Ci. 94 
 
 Rice, P. J. : The single assig-nment of error is that the court 
 erred in dismissing the appellant's exceptions to the auditor's findings 
 of fact and conclusions of law. Nineteen exceptions were filed by 
 tlie appellant, some to findings of fact, others to conclusions of 
 law, and others to the refusal of certain findings and conclusions 
 requested by him. It is contended in tlie appellee's paper book that 
 the assignment should be disregarded because it is in violation of 
 rule xiv of this court, which provides as follows: "Each error 
 relied on must be assigned particularly, and by itself. If any assign- 
 ment embrace more than one point, or refer to more than one bill 
 of exceptions, or raise more than one distinct question, it shall be 
 considered a waiver of all the errors so alleged." Notwithstanding 
 this objection was thus brought to the notice of the appellant, no 
 motion was made to remove it by amendment. The objection is 
 substantial and not merely technical. The rule is an important one 
 and has been enforced in numerous instances by this court, and a 
 similar rule has been enforced many times by the Supreme Court. A 
 
 Wells V. Martin, 1 Ohio St. 3S6 (1853) ; Hollingsworth v. State, 8 Ind. 257 
 (1856) ; Sjnith v. Williams, 36 Miss. 545 (1858) ; Ives v. Finch, 28 Conn. 112 
 (1859) ; Huiton v. Reed, 25 Cal. 478 (1864) ; Bnrnham v. Van Gelder, 32 Mich. 
 490 (1875) ; State v. Lewis, 39 N. J. L. 501 (1877) ; Weissman v. Russell, 10 
 Ore 73 (1882); Williams V. Riley, 88 Ind. 290 (1882); Ditch v. Sennott, 
 116 II' 288, 5 N. E. 395 (1886) ; Wood v. Whitton, 66 Iowa 295, 19 N. W. 907 
 (18S5) ; Freeman v. Rhodes, 36 Minn. 297, 30 N. W. 891 (1886) ; McNeill v. 
 Kyle, 86 Ala. 338, 5 So. 461 (1888) ; Lang v. Max, 50 111. App. 465 (1893) ; 
 Speers V. Knarr, 4..Pn,. .Super. Ct. 80 (1897) ', Grimm v. Washburn, 100 Wis. 
 229 79 N. W. 984 (1S98) ; Watson v. Le Grand Rink Co., 177 HI. 203, 52 N. E. 
 317' (1898); Collins V. Carr, in Ga. 867, 36 S. E. 959 (1900); Cammo n- 
 r..^nnUvrhi-fn^J2 "P=^- Simer. Ct zi20 (1907) ; Axel v. Kracmer, 75 N. J. L. 
 558707^17367 (1908) ; Hoivard v. .Sii-'issvale Bor., 216 Pa. 368, 65 Atl. 814 
 (1907) ; rnn^r_y _ Wpjr. 2T7 Pa. %2i. 66 Atl. ^^o (1907) I Harper Machinery Co. 
 V Ryan Vnniack Co., 85 Conn. 359, 82 Atl. 1027 (1912); Wood v. Wilbert, 
 226 tJ. S. 384, 57 L. ed. 264 (1912) ; Bcnz v. Central R. R. of N. J., 82 N. J. L. 
 197, 82 Atl. 431 (1912) ; Prosser v. Mauley, 122 Minn. 448, 142 N. W. 876 
 (1913); Burpee v. Burpee, 109 Maine 379, 84 Atl. 648 (1912); Nelson v. 
 Timber Co., 66 Ore. 570, 133 Pac. 1167 (1913) ; Cass v. Duncan, 260 111. 228, 
 103 X. E. 280 (1913) ; Maliny. James, 244 Pa. 336, 90_ Atl. 714 (1914)- The 
 appellate court may, nevertheless, notice plain errors apparent on the face of 
 the record, although not assigned. Castledine v. Mundy, 4 B. & Ad. 90 (1832) ; 
 Crandall v. State, 10 Conn. 339 (1834) ; Gittings v. Baker, 2 Ohio St. 21 
 (1853) ; Arthurs v. Smath e rs, 38 Pa. St. 4 0_(i86o) ; Louisiana v. Bahse, 38 
 La 'Ann. '542 (1886) ; Richardson v. Knox, 14 Te'x. Civ. App. 402, 37 S. \V. 
 189 (1896) ; Newell v. West, 149 Mass. 520, 21 N. E. 954 (1889) ; Huntsman 
 V. Linville River Lumber Co., 122 N. Car. 583, 28 S. E. 838 (1898) ; United 
 States V. Pena, 175 U. S. 500, 44 L- ed. 251 (1899) ; The Myrtie M. Ross, 360 
 Fed. 19 (1908) ; rnW^_v_^/^^«7 , ^99. Pa t^6. 70 Aa 10^^ (1908) ; White v. 
 United Stares, 202"Tea7~5orTi9i3)- CompsLveMcUdtHrick v. Slevm, 43 Ind. 
 522 (1873) ; Hughes v. Decker, 38 Maine 153 (1854) ; Lane v. Taylor, 40 Ind. 
 495 (1872).
 
 WALKER V. WATERBURY 86/ 
 
 careful examination of the auditor's report and the evidence ad- 
 duced before him leads us to the conchision that no substantial 
 wrong to the appellant will result if we enforce it in the present 
 case, as we are dictinctly asked to do by appellee's counsel. 
 Appeal quashed.^^ 
 
 WALKER V. WATERBURY 
 
 Supreme Court of Errors of Connecticut, 1908 
 
 81 Conn. 13 
 
 Action against the city of Waterbury and the Hellmann Brew- 
 ing Company for tlie diversion by the city of a water-course, and by 
 the company of another water-course, into a city sewer, whereby the 
 plaintiff's cellar was flooded, brought to and tried by the Superior 
 Court in New Haven County, Case, J., who gave judgment for the 
 defendants.^* 
 
 Baldwin, C. J. : The reasons of appeal read as follows : i. The 
 court erred in rendering judgment for both defendants upon tlie 
 pleadings and facts found. 2. The court erred in rendering judg- 
 ment for defendant, the city of Waterbur}^, upon the pleadings and 
 facts found. 3. The court erred in rendering judgment for defend- 
 
 *'Accord: Reinier v .^Stub cr. 20 Pa. St. ^=;8. 59 Am. Dec. 744 (1853); 
 Good Intent Co. v. Hartzell7^2 Pa. St. 27 7 (1853) ; Chicago R. I. R. Co. v. 
 Moffit, 75 111. 524 (1^74) ; Union Central Life Ins. Co. v. Chowing, 86 Tex. 
 654, 26 S. W. 982, 24 L. R. A. 504 (1894) ; Saunders v. Montgomery, 143 Ind. 
 185, /|i N. E. 453 (1805) ; A'orzualk v. Ireland, 68 Conn. I, 35 Atl. 804 (1896) ; 
 United States v. Indian Gove Drainage District, 85 Fed. 928 (1898) ; 
 Cliandler v. Pomeroy, 96 Fed. 156 (1899) ; Hammond v. Vctshurg, 56 Fla. 369, 
 48 So. 419 (1908) ; Aycrs v. Hobbs, 41 Ind. App. 576, 84 N. E. 554 (1907) ; 
 Decker v. Mann, 80 Conn. 86, 66 Atl. 884 (1907) ; The Myrtie M. Ross, 160 
 Fed. 19 (1908) ; Haley w. American A. C. Co.. 224. Pa. 3 16. "jt, Atl. 557 (1909) ; 
 Catlin V. Northern Coa l ^r Jyr>ii Cn , <>?g Pa 262, 7 4 Atl. 56 (1909) ; Southern 
 Hardzvare Co. v. Standard E. Co., 165 Ala. 582, 51 So. 789 (1910) ; McMillan v. 
 Warren, 59 Fla. 578, 52 So. 825 (loio) ; Williamson v. Pozvell (Tex. Civ. App.), 
 140 S. W. 3S9 (1911) ; Miilvey Mfg. Co. v. McKinncy, 161 111. App. 514 (1911) ; 
 Mcrritt V. Poli. 2^6 Pa. i7o. 84 Atl. (\? ^ ^ (1912) ; West-Homes tead v. Erbeck, 
 2 39 Pa. 192, 86 Atl. 773 ( 1913). Compare Central 1 rust Lo.~v. "Continental 
 I rust Co. of City of Nezv York, 86 Fed. 517 (1898). 
 
 At common law errors of fact and law can not be assigned together. 
 Jeffry v. Wood, I Str. 463 (1720); Fitch v. Lothrop, 2 Root (Conn.) 524 
 (1797); Brents v. Barnett, 3 Bibb (Ky.) 251 (1813) ; Freeborn v. Denman, 
 7 N. J. L. 190 (1824); Moody v. Vrceland, 7 Wend. (N. Y.) 55 (1831) ; 
 McMnrray v. Erie, ^o Pa. St . 223 (1868). But this is permitted by statute in 
 Maine! Starbird v. Eaton, 42 Maine 569 (1856)^ and by the practice of the 
 courts in Massachusetts. Eliot v. McCormick, 141 Mass. 194, 6 N. E. 375 
 (1886) ; Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337 (1900). 
 
 Errors in fact could not be assigned in the Exchequer Chamber and 
 House of Lords. Archbold's Practice, 350; Castledine v. Mundy, 4 B. & Ad. 
 90, 97 (1832). And this nractice has been followed in some jurisdictions. 
 Karnuff v. Kelch, 71 N. J. L. 558, 60 Atl. 364 (1904); Watson y. Mercer . 
 17 Serg. & R. (Pa. ) 343 (1828) ; McMurrav v. Erie. <^(} Pa~Rf- ■^.■?2T^5) 
 ' '"l-'art ot tlie opinion of the court is omitted.
 
 8oS Arrr.Ai. Axn error 
 
 ant, the Ilcllniaiiu Brewing; Coiu[)any, upon the pleadnigs and facts 
 found. 
 
 How the court erred in rendering' its judgment is not pointed 
 out. At most, nothing more is stated than that the judgment is not 
 a proper conclusion from the pleadings and facts found. If not, 
 why not? It was for the appellants to indicate the character of the 
 error in such a way as to give to the appellees and to this court rea- 
 sonable notice of the grounds of exception which it was intended to 
 present. This duty exists in a case where the error claimed was 
 first disclosed by the judgment, as well as when it arose in the course 
 of the trial. It does not, as in ^Itzcood v.lVclton, 57 Conn. 514, 
 521, 524, 18 Atl. 322, necessarily appear on the face of the record 
 by which of the several conclusions of law and fact reached by the 
 trial court as the basis of its judgment, the plaintiffs claim to have 
 been aggrieved. The first, second and third reasons of appeal are 
 therefore insufficient.®^ General Statutes, section 802. There is no 
 error. 
 
 In this opinion the other judges concurred. 
 
 *^"To say in omnibus erratum est, is not pood, because of the uncertainty." 
 Fitzherbert's Natura Brevium 20; Y. B. 6 Edw. IV 6; Roll. Abr. 761. 
 
 The decisions lay down the broad rule that assignments of error must 
 point out clearly and distinctly the error committed in the court below, but 
 the limits of the rule depend largely on the statutes and rules of court in 
 force in the respective jurisdictions. Among the many cases see Donnelly v. 
 State, 26 N. J. L. 463 (1857) ; Kimball v. Sloss, 7 Ind. 589 (1856), where 
 the error assigned was "that the judgment is for Sloss, when by law it 
 should have been for Kimball"; Harmon v. Chandler, 3 Iowa 150 (1856); 
 Johnson v. Ballon, 25 Mich. 460 (1872) ; Landers V. Staten Island R. Co., 13 
 Abb. Pr. (N. S.) 338 (1872); O'Reagan v. O'Sullivan, 14 Bush. (Ky.) 184 
 (1878); Baxlis V. Stout, 49 Mich. 21'-,, 13 N. W. 521 (1882); Cheatham v. 
 Pearce, 89 tenn. 668, IS S. W. 1080 (1S90) ; Van Stone v. Stillu.'cll & B. Mfg. 
 Co., 142 U. S. 128, 35 L. ed. 961 (1891) ; Driscoll v. Carlin, 50 N. J. L. 28, 
 II Atl. 482 (1887) ; National Fertilizer Co. v. Holland, 107 Ala. 412, 18 So. 
 170, 54 Am. St. loi (1894) ; Mahler v. Merchant's Nat. Bank, 65 Minn. 2>7, 
 67 N. W. 655 (1896) ; Jackson Bridge Co. v. Lancashire Ins. Co., 122 Mich. 
 433, 81 N. W. 265 (1890) ; Berry v. Chicago, 192 111. I54. 61 N. E. 498 (1901) ; 
 O'Neil V. Nezi'uian, 132 Mich. 489, 93 N. \V. 1064 (1903) ; State v. MacQueen, 
 69 N. J. L. 476, 55 Atl. 45 (1903) ; Lutlopfy v. Heckman, 70 N. J. L. 272, 57 
 Atl. 1046 (1903) ; Chandler v. Mutual Life & Industrial Assn. of Georgia, 
 131 Ga. 82, 61 S. E. 1036 (1908); Cochran v. Bugg, 131 Ga. 588, 62 S. E. 
 1048 (1908); Chicago M. & St. P. Ry. v. Anderson, 168 Fed. 901 (1909); 
 Stark V. Duhring, 140 Wis. 521, 122 N. W. 1 131 (1909) ; Koutnik V. Cody, 148 
 111. App. 313 (1909) ; Williams v. Newton, 86 S. Car. 248, 68 S. E. 693 (iQio) ; 
 Reed v. Hearst's Chicago American, 162 111. App. 287 (1911); Donovan v. 
 Davis, 85 Conn. 394, 82'AtI. 1025 (1912) ; Little v. Fear on, 49 Pa. Super. Ct. 
 634 (1912) ; Wjlmrr vjlrx semer fr I. R. ro.. 24I i^a. 1 12^ Atl."3^I4 ClQlJ) ; 
 Prenatt v. ^Iessenge r P. C o., 241 Par26 7 88 Atl. 439Ti9 i3)rS^>"/'-'''0" v. Cox, 
 gi S. Car. 382, 79 S.' E. ' ia? (1913) ; Boeck v. Modern l'yoo<Tmen,i62 Iowa 159, 
 143 N. \V. 999 (1913); Lakeside I. Co. v. Buffington (Tex. Civ. App.), 168 
 S. W. 21 (1914) ; Kinnon V. Louisville & N. R. Co., 187 Ala. 480, 65 So. 397 
 (1914) ; Porter v. American Cigarbox Lumber Co., 164 N. Car. 396, 80 S. E. 
 443 (1914). Compare Sneer v. .Stutz, 93 Iowa 62, 61 N. W. 397 (1894) ; Wolfe 
 V. Stack, 153 Mich. 445, 116 N. \Y. loio (1908). Assignments of error that 
 are no more than abstract propositions of law are improper. Davis v. Harper, 
 14 App. D. C. 463 (1899). 
 
 An assignment must not contradict the record. Bacon's Abridgment, 
 Error (k,3) ; Y. B. 9 Edw. IV 32b; Cross v. Tyrer, Cro. Eliz. 665 (1598) ;
 
 tidd's practice 869 
 
 2 TIDD'S PRACTICE, 1173 
 
 Ninth Ed. 1828 
 
 To an assignment of errors, the defendant may plead or demur. 
 Pleas in error are common or special. The common plea, or joinder, 
 as it is more frequently called, is in nullo est erratum, or that there 
 is no error in the record or proceedings ; which is in the nature of a 
 demurrer, and at once refers the matter of law arising therefrom, to 
 the judgment of the court. "^"^ 
 
 If the plaintiff in error assigns an error in fact, and the defend- 
 ant in error would put in issue the truth of it, he ought to traverse 
 or deny the fact, and so join issue thereupon, and not say in nullo 
 est erratum ; for by so doing he would acknowledge the fact alleged 
 to be true.*^^ But when an error in fact is assigned, if the defendant 
 vv^ould acknowledge the fact to be as alleged, and yet insist that by 
 law it is not error, he ought to rejoin in nullo est erratum. Hence 
 it appears, that if an error in fact be well assigned, in nullo est 
 erratum is a confession of it;^^ for the defendant ought to have 
 joined issue thereon, so as to have tried it by the country. But if 
 an error in fact be assigned that is not assignable, or be ill assigned, 
 in nullo est erratum is no confession of it, but shall be taken only 
 for a demurrer. ^^ 
 
 By pleading in nullo est erratum, the defendant in error admits 
 the record to be perfect, the effect of his plea being that the record 
 
 Whistler v. Lee, Cro. Jac. 359 (1614) ; Molins v. Werby, i Lev. 76 (1662) ; 
 Lampton v. Collingwood, i Salk. 262 (1694) ; Helbut v. Held, i Str. 6S5 
 (1726) ; Moody v. Vrceland, 9 Wend. (N. Y.) 125 (1832) ; Riley v. Wangh, 
 62 Mass. (8 Cush.) 220 (1851) ; King v. Robinson, 23 Maine 114, 54 Am. Dec. 
 614 (1851) ■ Hau'k v. Jones 24 Pa. St I27_{i854) ; Claggett V. Simes, 31 N. H. 
 22 (1855) ; Collins v. Watkcr.'sS ^- H. 437 (1875) ; Gray v. Cook, 135 Alass. 
 189 (1883) ; IValdec v. Archuleta, 3 N. Mex. 195, 5 Pac. 327 (1885) ; Ciimnor 
 V. Sedgwick, 67 Conn. 66, 34 Atl. 763 (1895) ; Doylesto wn Dj stilling Co.'s 
 Application, 9 Pa. Super. Ct. 96 (189S) ; Quinn's Li cense, 11 Pa. Super. Ct. 
 554 U099;.. '^ 
 
 An assignment of error in the form of a question, whether in doing 
 this or that the court erred, is improper. McCaskey R. Co. v. Keena, 8l 
 Conn. 656, 71 Atl. 898 (1909). 
 
 ^"Adams v. Beem, 4 Blackf. (Ind.) 128 (1833); Goodridge v. Ross, 6 
 Mete. (Mass.) 487 (1843) ; Booth v. Commonwealth, 7 Mete. (Mass.) 285 
 (1843) ; Acker v. Ledyard, i Denio (N. Y.) 677 (1845) ; David v. Ransom, 
 I G. Greene (Iowa) 383 (1848); Rundles v. Jones, 3 Ind. 35 (1851). See 
 also Delaware, L. & IV. R. Co. v. Joseph English Co., %2 N. J. L. 113, 81 Atl. 
 436 (1911), as to demurring. 
 
 ^'Haydon v. Mynn, Cro. Jac. 521 (1618) ; Riley v. Waugh, 62 Mass. 
 (8 Cush.) 220 (1851) ; Benner v. Welt, 45 Maine 483 (1858) ; Kanawha Dis- 
 patch Co. v. Fish, 219 111. 236, 76 N. E. 352 (1906). 
 
 ^^Grell V. Richards, i Lev. 294 (1670); Okeover v. Overbury, T. Ra>Tn. 
 231 (1673) ; Bliss V. Rice, 9 Johns. (N. Y.) 159 (1812) ; Moorj _v McEwen, 
 5 Serg. & R. (Pa.) 373 (1819); Goodzvin v. Sanders, 9 Yerg. (Tenn.) 91 
 "(1836) ; Rundles v. Jones, 3 Ind. 35 (1851). 
 
 ''Lovett V. Pell, 22 Wend. (N. Y.) 369 (1839) ; Claggett v. Simes, 31 N. H. 
 22 (1855) ; Louisville R. Co. v. Smoot, 135 Ind. 220, 33 N. E. 905, 34 N. E. 
 1002 (1893) ; Karnuff v. Kelch, 71 N. J. L. 558, 60 Atl. 364 (1904) ; Perkins 
 V. Bangs, 206 Mass. 408, 92 N. E. 623 (1910).
 
 byo APrKAi, A::n r.uROR 
 
 in its present shape is without cri-or ; and therefore after in nullo 
 est erratum pleaded, neither party can allege diminution, or pray a 
 certiorari.'" But though the parties are bound by their own admis- 
 sion, and that equally so as to every part of the record, yet no ad- 
 mission of the parties can or ought to restrain tlie courts from look- 
 ing into the record before th.cm. Hence it is a general rule, that at 
 any time pending a writ of error, wdiethcr before or after errors 
 assigned, or even after in nullo est erratum pleaded, the court, ex 
 officio may award a certiorari, and they may do this to supply a de- 
 fect in the body of the record, as well as in the out-branches.'^^ 
 
 Special pleas to an assignment of errors contain matters in con- 
 fession and avoidance, as a release of errors,^- or the statute of lim- 
 itations,"^ etc., to which the plaintiff in error may reply'^^ or demur, 
 and proceed to trial or argument.''''' 
 
 '"Y. B. 9 Edvv. IV 32; Robert v. Andrew's, Cro. Eliz. 82 (1587) ; GiUUcnd 
 V. Rapplcyca, 15 N. J. L. 138 (1835) ; Tomlinson v. Armour, 75 N. J. L. 748, 
 70 Atl. 314 (1907)- 
 
 "^Vincr's Abridgment, Error (m) ; WincJiomb V. Goddard, Cro. Eliz. 836 
 (1600") ; Meredith v. Dav'ics, i Salk. 270 (1711). 
 
 "Bacon's Abridgment, Error (1) ; Y. B. 9 Hen. VI 46; Carle ton v. 
 lilortagh, 2 Ld. Raym. 1005 (1703) ; Davcnant v. Raftor, 2 Ld. Raym. 1046 
 (1704) ; Adams v. Becin, 4 Blackf. (Ind.) 128 (1835) ; Newman v. Riser, 128 
 Ind. 258, 26 N. E. 1006 (1890) ; Compiler v. Broivning, 219 111. 429, 76 N. E. 
 678, 109 Am. St. 346 (1906) ; Schaeffcr v. Ardery, 238 111. 557, 87 N. E. 343 
 (1909) ; Cass V. Duncan, 260 111. 228, 103 N. E. 280 (1913). So also, matters 
 arising after the taking of the appeal may be specially pleaded. Nezvman v. 
 Riser, 128 Ind. 258, 26 N. E. 1006 ( 1890) ; Lake Erie & IV. R. Co. v. Huffman, 
 177 Ind. 126, 97 N. E. 434, Ann. Cas. 1914C, I272n (1912). 
 
 '^BartJiolome-dJ V. Bel field, Cro. Jac. 332 (1613) ; Street v. Hopkinson, 
 2 Str. I0S5 (1736) ; Jacobs v. Graham, i Blackf. (Ind.) 392 (1825) ; Acker v. 
 Lcdyardli Denio (N. Y.) 677 (1845) ; Duff v. Duff, 103 Ky. 348, 45 S. W. 102, 
 20 Ky. L. 52 (1898) ; Farmer v. Allen, 85 Miss. 672, 38 So. 38 (1904) ; George 
 V. George, 250 111. 251, 95 N. E. 167 (1911). In some jurisdictions the bar 
 of the statute may be taken advantage of by motion to quash, or to dismiss 
 the writ or appeal. Brooks v. N orris, 11 How. (U. S.) 204, 13 L. ed. 665 
 (1850) ; Showers v. Showers, 27 Pa. St. 485, 67 Am. Dec. 487 (1856) ; Day v. 
 Huntingdon, 78 Ind. 2S0 (1881) ; Lane v. II 'heeler, loi N. Y. 17, 3 N. E. 796 
 (1885). The Pa. Act of May IQ. i8q7.J P- L. 67, § 4, fixing a limitation for 
 taking appeals^provides : "Appeals taken after tlie time herein provided for 
 shall be quashed on motion." jl/r/'of/^^rn v. McFadden, 2 11 Pa. 599, 61 Atl. 75 
 (1905) ; Parrel w. Scranton R. Co., 27 Pa. Super set. 127" (1905). 
 
 '■'GaliisJTa V. Cobleigh, 13 IM. Jhl. 79 (.1842) ; Tra/>/> v. Off, 194 111. 287, 62 
 N. E. 615 (1902). 
 
 "At common law where a scire facias ad audiendum errores was sued 
 out and the defendant failed to appear and join in error the plaintiff in 
 error could move to reverse judgment on entry of defendant's default. 
 Thatcher V. Stephenson, i Str. 144 (1718) ; Walmsley v. Roson, 2 Str. 1210 
 (1744) ; Arch. Pr. (7th ed.) 387. And failure to plead has led to a reversal 
 of judgment in some American courts. Op pie v. Colegrove, 19 Johns. (N. Y.) 
 124 (1821) ; Higgins v. Crosby, 40 III. 79 (1865), semble; Mtirdock v. Town- 
 send, I Colo. 33 (1867), and see Tufts v. Newton, 119 Mass. 476 (1876). In 
 other courts the practice is to proceed ex parte to examine the errors assigned. 
 March v. Howell, I Mo. 138 (1821) ; Mayson v. Lane, 6 How. (Miss.) 11 
 (1840); Pa. Supreme Court Rule 1 6. In Alabama a formal joinder is held 
 unnecessar>- where the record shows a joinder in the submission of the cause. 
 Maddox v. Chilton Warehouse Co., 171 Ala. 216, 55 So. 93 (iqii). So in 
 Downs v. Chandler (N. Mex.), 85 Pac. 392 (1906), it is held, under the 
 statute, that unless exception is taken to the assignments of error the opposite 
 party is deemed to have joined in error.
 
 BELL V. GERMAIN 87I 
 
 SECTION 6. BRIEFS AND ARGUMENT 
 
 BELL V. GERMAIN 
 
 District Court of Appeal of California, 1910 
 
 12 Cal. App. 375 
 
 Taggart, J. : Action to quiet title. Decree quieting title of de- 
 fendants and awarding them costs. Plaintiff appeals from judgment 
 and order denying her motion for new trial. '^® 
 
 It is apparent that counsel for appellant has been somewhat mis- 
 led in the preparation of his brief by the repeated requests of the 
 Supreme Court and this court for brevity and succinctness in the 
 presentation of cases. While "simplicity of statement" in the brief 
 of counsel has met, and always will meet, with the approval of these 
 courts, the effort in this direction should not go so far as to elim- 
 inate or exclude all specification or mention of the errors upon which 
 an appellant relies for a reversal. The simplicity of presentation 
 desired is that which avoids prolixity, verbosity and repetition; 
 which omits theoretical disquisitions on abstract principles of law, 
 needless presentation of questions of fact as to which tlie action of 
 the trial court Is final, the citation of innumerable authorities indica- 
 tive of an examination of the subject which has never passed the 
 digest stage, etc., etc. A brief is supposed to be the vehicle of coun- 
 sel to convey to the court the essential facts of his client's case, a 
 statement of the questions of law involved, the law he would have 
 applied, and the application he desires made of it by the court. When 
 the brief is presented to an appellate court, it should point out to 
 that court which of the many objections and exceptions usually 
 found in the transcript it is the wish of appellant to have the court 
 review. It must be assumed for this purpose that the knowledge of 
 the court does not include the facts of the particular case, or the 
 special errors of the trial court which appellant relies upon to over- 
 turn the judgment or order. These should be pointed out clearly, 
 even at the hazard of encroaching upon the ideal simplicity of state- 
 ment which the appellate courts have approved. Voluminous and 
 unnecessarily padded briefs are discouraged by the courts in order 
 that they may dispatch business. When briefs fail altogether to 
 present the matters mentioned, the courts must elect between acting 
 as counsel for the appellant, or passing upon only such questions as 
 are sufficiently presented for consideration by the brief, and in ac- 
 complishing the purpose mentioned, to wit, the dispatch of business, 
 the latter course has generally been adopted.'^'' 
 
 Judgment and order affirmed. 
 
 "Only so much of the opinion as relates to the brief is printed. 
 
 "The brief must support the party's contention by reasoning and by 
 authorities. Brown v. Tolles, 7 Cal. 398 '(1857) ; Chicago R. I. Co. v Moffitt, 
 75 111. 524 (1874) ; Stoc kdale v. Maginn, l3JLPaLSt^50Z^ig Atl. 297 (1890) ; 
 Chicago & Ind. R. Co. v. HunleT, 128 Tnd. 213, 27 N. K 477 (1890) ; Hatch
 
 87- AIMTAI, AND ERROR 
 
 ]\rATTTTF.WS APPEAL 
 S upreme Co _urtjqeJ-^-i:njjsy.lvajjia, 1883 
 
 104 Pa. Si. 444 
 
 Appeal from a decree of the Court of Common Pleas No. 2 of 
 Allogliony County, dismissing exceptions to a master's report in 
 equity."^ 
 
 When the case was called for argument upon October 29, 1883, 
 the appellees' counsel directed the attention of the court to the fol- 
 lowing language in the appellants' paper book used in reference to 
 the master's report : 
 
 "Such a course of reasoning is contrary to common sense. Its 
 fallacy is too plain to provoke criticism. It is kin to the utterings 
 of a 'crank'. . . . But, the master bridged it over by saying that 
 tliere was so little of the balance of purchase money left that the 
 game would not be worth the candle. And therefore, excused the 
 company from fault. Plere, again, we have a ruling which more 
 closely resembles the utterings of a 'crank' than it does the reason- 
 ing of a chancellor." 
 
 The court took the matter under consideration, and upon the 
 opening of court upon the day following, Mercur, C. J., stated their 
 opinion substantially as follows : 
 
 V. Hanson, 46 Mo. App. 323 (1891) ; Gavin v. Gavin, 92 Cal. 292, 28 Pac. 567 
 (1891) ; Ashley v. Martin, 50 Ala. 537 (1874) ; Paine v. Webster, 64 Vt. 105, 
 23 Atl. 615 (1891); DuBois V. Perkins, 23 Ore. 144, 31 Pac. 201 (1892); 
 Mason v. Partrick, 100 Mich. 577, 59 N. W. 239 (1894) ; Hough V. Tacoma, 
 12 Wash. 386, 41 Pac. 173 (1895) ; Patterson v. Patterson, 3 Kans. App. 342, 
 45 Pac. 129 (1896) ; Hoover v. li'cesner, 147 Ind. 510, 45 N. E. 650, 46 N. E. 
 905 (1896) ; Porter v. Parslozv, 39 Fla. 50, 21 So. 574 (1897) ; Kerr v. Smiley, 
 77 111. App. 88 (1898); Bauer v. School Dist., 78 Mo. App. 442 (1898); 
 Missoula Mercantile Co. V. O'Donncll, 24 Mont. 63, 60 Pac. 594, (1900); 
 Western Tube Co. v. Pederson, 128 111. App. 637 (1906) ; Barth v. Borden's 
 Condensed Milk Co., 104 N. Y. S. 8S2 (1907) ; Gray v. Walker, 157 Cal. 381, 
 108 Pac. 278 (1910) ; Seaboard Air Line v. Nims, 61 Fla. 420, 54 So. 779 
 (1911) ; Clark v. Kraig, 21 Colo. App. 196, 120 Pac. 1044 (1912) ; Title Guar- 
 anty Co. V. Slinker, 35 Okla. 128, 128 Pac. 696 (1912) ; Wellington V. Reynolds 
 177 Ind. 49, 97 N. E. 155 (1912). Counsel in citing precedents should make first 
 choice of those of the court where the case is on appeal. LhxgauJU^RaltimQXC 
 f. n ff Cn Wzf^V:, St ?t^, 28 Atl. 182, 1S6, 39 Am. St. 672 (1893) ; BUzsard 
 V. Brown, 152 Wis. 160, 139 N. W. 737 (1913) ; Francis v. First Nat. Bank of 
 Eufaula, 40 Okla. 267, 138 Pac. 140 ( 1914) . In Wilson v. National Fowler Bank, 
 47 Ind. App. 689, 95 N. E. 269 (1911), it was held that the appellants were ex- 
 cused from giving authorities by a statement that they were unable to find any 
 directly in point. So, a rule requiring briefs to contain authorities is not vio- 
 lated merely because the authorities cited are inapplicable. Fishback v. Braniel, 
 6 Wyo. 293, 44 Pac. 840 ( 1896) . The form and contents of the brief or argument 
 are, almost universally, regulated cither by statutes or the rules of court. For 
 example see Rules of Supreme Court of United States, Rule XXI. By the 
 rules of practice in many jurisdictions errors raised for the first time in a 
 reply brief v.-ill not be considered. Kendrick v. Eggleston, 56 Iowa 128, 
 8 N. W. 786, 41 Am. Rep. 90 (1881) ; Vestal v. Norris, n Wash. 451, 39 Pac. 
 960 (1895); Malott V. State, 158 Ind. 678, 64 N. E. 458 (1902); Hawke v. 
 Biimgardner, 103 Va. 91, 48 S. E. 554 (1904) ; Mesa De Mayo Land Co. v.
 
 LAMPSON z: II OB ART 873 
 
 "Our attention has been directed to some objectionable and im- 
 proper language in the appellants' paper book. Objectionable words, 
 hastily spoken in the warmth of oral argument, may often be 
 excused. In printed arguments there is no excuse for language 
 such as we find in this book. The motives of the master are im- 
 pugned and he himself is spoken of contemptuously. Especially is 
 this unjustifiable, where, as here, the master's report was confinned 
 by the court. The master is a part of the court. To say that his 
 course of reasoning is contrary to comm.on sense and kin to the 
 utterings of a crank, is not criticism on his reasoning nor relevant 
 to the questions at issue. A majority of this court has determined 
 that this paper book be suppressed." 
 
 Counsel for appellant desired to be heard. 
 
 Mercur, C. J. : We have read the langviage and decided on its 
 impropriety. We can not hear argument as to the wisdom of our 
 decision, but if you wish to make any apology we will hear you. 
 
 Counsel for appellant then stated that the argument was writ- 
 ten in haste, and was not intended to reflect personally upon the 
 master, between whom and the counsel friendly relations existed; 
 and that the objectionable language would be expunged. 
 
 This was done, and the case was then, by the consent of appel- 
 lees' counsel, heard by the court. '^^ 
 
 LAMPSON V. ESTATE OF ADAM HOBART, JR. 
 
 Supreme Court of Vermont, 1856 
 
 27 11. 784 
 
 In this case, heard at tlie March term of the Supreme Court for 
 the county of Orange, A. D. 1856, the plaintiff had two distinct 
 claims which he was prosecuting against the estate of defendant. 
 In the county court one was decided in his favor, and the other in 
 
 Hoyt, 24 Colo. App. 279, 133 Pac. 471 (1913) ; Simmons v. Affoltcr, 254 Mo. 
 163, 162 S. W. 168 (1914) ; Wankcgan v. Wetzel, 261 111. 498, 104 N. E. 184 
 (1914); Cribbs v. Stiver, 181 Mich. 82, 147 N. W. 587 (1914). Compare 
 Pratt V. Trustees of Baptist Soc. of Elgin, 93 111. 475, 34 Am. Rep. 187 
 (1879) ; In re Adams, 165 Miss. 497, 43 N. E. 682 (1896). 
 
 "Only so much of the case as relates to the paper book is printed. 
 
 "Abuse of court, counsel or parties, or statements as to conduct and 
 motives not supported by the record are improper and will subject the offend- 
 ing part}^ to the discipline of the appellate court. San Diego Water Co. v. 
 San Diego, 117 Cal. 556, 49 Pac. 582 (1897); Confrey v. Stark, 73 111. 187 
 (1874) ; Cassidy v. Palo Alto. 58 Iowa 125, 12 N. W. 231 (18S2) ; Scroggins 
 V. Brown, 14 III. App. 338 (1883) ; Paine v. Frost, 67 Iowa 282, 25 N. W. 243 
 (1885) ; Sax V. Drake, 69 Iowa 760, 28 N. W. 423 (1886) ; Eureka Steam 
 Heating Co. v. Sloteman, 69 Wis. 398, 34 N. W. 387 (1887) ; Green v. Elbert, 
 137 U. S. 615, 34 L. ed. 7Q2 (1891) ; Flannagan v. Elton, 34 Nebr. 355, 51 N. W. 
 967 (1892) ; Diamond T. Co. v. Faulkner, 17 Colo. 9. 28 Pac. 472 (1891) ; 
 Tomlinson v. Territory, 7 N. AT ex. 195, 33 Pac. 950 C1893) ; Taggart v. Bun- 
 dick (Kans.), 43 Pac. 243 (1896) ; People v. Parks, 26 Colo. 322, 57 Pac. 692 
 (1899) ; State v. Kennedy, 60 Nebr. 300, S>2) N. W. 87 (1900) ; Scott v. Brown 
 (Kans.), 63 Pac. 451 (1901).
 
 874 APPEAL AND ERROR 
 
 favor of the cslntc. Both parties excepted to the decision, and the 
 exceptions on both sides were ]>rosecuied before this court. A ques- 
 tion was made, in regard to which party sliould go forward in the 
 arginnent. 
 
 Bv The Court: We think, in the state in which this case is 
 presented, the plaintifl" is entitled to open and close the argument. 
 So far as the exceptions are concerned, the parties are equally en- 
 titled to open and close. ^'^ We must then fall back upon the general 
 ground, tliat the plaintiff assumes the initiative in the proceedings.^^ 
 
 POWERS V. STURTEVANT 
 
 Supreme Judicial Court of IMassaciiusetts, 1909 
 
 200 Mass. 519 
 
 KxowLTOX, C. J.: This is an appeal by the defendant from an 
 order of the superior court that judgm.ent be entered for the plaintiff. 
 The appeal is founded upon the fact that an application for a re- 
 hearing, on account of a supposed error in law in the decision of 
 the case by the full court, had been sent to the chief jusLice,_and the 
 receipt of it had been acknowledged, with a statement that it would 
 be considered by the justices at their next meeting for consultation. 
 The application was sent in July, and the next meeting of the jus- 
 tices v/as to be on the first Tuesday of September. 
 
 The defendant seemingly misapprehends the standing of a case 
 after a final decision of it by the full court upon questions of law. 
 On tliis subject Chief Justice Gray said, in tlie opinion in Winchester 
 V. Winchester, 121 Mass. 127, 129, "The practice of that court 
 (the English Court of Chancery)^- affords no rule to govern acourt 
 of last appeal, whose judgments have the strongest presumption in 
 their favor, and can not be freely reconsidered without unreasonably 
 protracting litigation and disregarding the claims of other suitors to 
 the attention of the court." He supports his statements as to the 
 practice in England and in the Supreme Court of the United States 
 by numerous citations.*^ A similar practice prevails generally in the 
 
 *^The appellant has the right to begin and conclude the argument. Decr- 
 ing V. Adams, 34 Maine 41 (1852) ; Arch. Pr. (7th ed.), p. 375; Tidd's Pr. 
 (9th ed.) 1177. ^ , _ 
 
 "Accord: Sellezv's Appeal, 36 Conn. 1S6 (1869) ; Shand v. Central Nat. 
 Bank (S. Car.), 11 S. E. 389 (1890). But see Peters v. Farnsworth, 15 Vt. 786 
 (1843) ; McFarland v. Stone, 16 Vt. 145 (1844). 
 
 Where both parties bring error the appeals should be heard at the same 
 time. In re Saicr's Estate, 158 Alich. 170, 122 N. W. 563 (1909) ; Hawkes v. 
 Warren, 133 App. Div. 863, 117 N. Y. S. 1097 (1909)- 
 
 ""See Fox v. Mackreth, 2 Cox's Ch. 158 (1789), but the practice is other- 
 wise under the Judicature Act of 1873. In re St. Nasaire Co., 12 Ch. Div. 88 
 (1879) ; Briqht V. Scllar, L. R. O904) i K. B. 6. 
 
 "Per Gray, C. J.: "After £nal judgment in the House of Lords or m 
 the Judicial Committee of the Privy Council, no rehearing is allowed, unless 
 ior the purpose of correcting mistakes in the form of the decree. Broughton
 
 POWERS V. STURTEVANT 875 
 
 courts of last resort in the states of this country, although there are 
 two or three, and possibly more, in which applications for a rehear- 
 ing of questions of law are entertained and arguments heard upon 
 them. The application in Winchester v. Winchester, ubi supra, was 
 on the ground that a decree had been entered erroneously as by con- 
 sent of the parties, when in fact there v/as no consent. The court re- 
 ceived the application without hearing the argument upon it, and 
 announced a decision refusing a rehearing. In cases of applications 
 for a rehearing on the ground of a supposed error of the full court, it 
 has been the practice for many years, not to treat them as having any 
 standing as a part of the legal procedure in the case. They are not 
 recognized by our statutes. They can not be made as a matter of 
 right, and they are not entered upon the records of the court unless 
 the justices, in their discretion, think they ought to be. 
 
 Of course there is a possibility of error in a decision by the 
 most learned and painstaking court in the world. The justices of 
 the Supreme Court of the United States, and of other distingiiished 
 
 V. Delves, I Ridff. P. C. 513, 514; Stezvart V. Agneiv, i Shaw App. Cas. 413; 
 Tommcy v. White, 3 H. L. Cas. 49, 4 H. L. Cas. 313; Rajundcrnara'in v. Bljai 
 Gov'ind Sing, I Moore's P. C. 117; The Singapore, L. R. i P. C. 378, 388. 
 In Stewart V. Agnezv, Lord Eldon quoted from an opinion delivered in the 
 Irish House of Lords in 1787, while that house was an independent and 
 supreme judicature, the following quaint but forcible statement : 'If causes 
 were to be reheard, there would be no end of decisions. This house would 
 then be a house of plusieiirs resorts and not of dernier resort — a house of 
 many applications, and not of final judgment; and the celebrated Latin 
 epigram upon the tediousness and uncertainty of the Aulic Council at Spires 
 might then be wrote over the front of this house, Lites ibi spirant, sed 
 minquam expircnt.' In the Supreme Court of the United States, no rehear- 
 ing of a case once decided is granted, nor even an argument permitted upon 
 the question whether a rehearing should be had, unless the court, upon inspec- 
 tion of the petition for a rehearing, sees fit so to order. Washington Bridge 
 V. Stcivart, 3 How. (U. S.) 413, 11 L. ed. 658; Brown v. Aspden, 14 How. 
 (U. S.) 25, 14 L. ed. 311; United States v. Knight, 1 Black (U. S.) 488, 
 17 L. ed. 76; Pithlic Schools v. Walker, 9 Wall. (U. S.) 603; Ambler v. 
 Whipple, 23 Wall. (U. S.) 278, 23 L. ed. 127." Accord: Johns v. Johns, 
 20 Md. 58 (1862); Wilson v. Williams, 106 Md. 657, 68 Atl. 297 (1907). 
 See also, Derby v. Gallup, 5 Minn. (Gil. 85) 119 (i860); Fosdick v. Hemp- 
 stead, 126 N. Y. 651, 27 N. E. 382 (1891) ; Land v. Wickham, i Paige Ch. 
 (N. Y.) 256 (1828) ; Russell v. Dyer, 43 N. H. 396 (1861) ; Mount v. Mitchell, 
 32 N. Y. 702 (1865); Woodbury v. Dorman, 15 Minn. (Gil.) 341 (1870); 
 Marine Nat. Bank v. City Bank, 59 N. Y. 67, 17 Am. Rep. 305 (1874) ; Butler 
 V. Walker, 80 111. 34S (1875) ; Gregory v. Pike, 67 Fed. 837 (1895) ; People v. 
 District Court, 26 Colo. 386, 58 Pac. 604, 46 L. R. A. 850 (1899) ; Newton v. 
 Woodley, 55 S. Car. 132, 2,2 S. E. 531, 33 S. E. i (1898) ; In re Lefevr e's_Es- 
 tate. im Pa. St. 22=^. aa Atl. 272 (1899) ; Weathers v. Borders, 124 N. Car. 610, 
 32 S. K. 881 (1899) ; Hodgin v. People's Nat. Bank, 125 N. Car. 503, 34 S. E. 
 709, 712 (1899) ; Suwannee R. Co. v. West Coast R. Co., 50 Fla. 612, 39 So. 
 538 (1905); Van Dyke v. Cole, 81 Vt. 379, 70 Atl. ii03'(i9o8); Welch v. 
 Highwood, 150 111. App. 397 (1909) ; Rosenstcrn & Co. v. United States, 
 171 Fed. 71 (1909) ; Cunningham v: Blanchard, 85 Vt. 494, 83 Atl. 469 (1912) ; 
 Flores v. Stone, 21 Cal. 105, 131 Pac. 348, 351, 352 (1913) ; Ex parte Banco 
 De Portugal, 14 Ch. Div. i, 42 L. T. 210 (1880); Preston Banking Co. v. 
 Allsup, L. R. I Ch. Div. 141 (1895); Gamble v. Hackett, 35 Nev. 319, 133 
 ^Pac. 936 (1912) ; Chapman &c. Lumber Co. v. St. Francis Levee Dist., 234 
 U. S. 667, 58 L. ed. 1526 (1914).
 
 S>y6 APri:AL and i:ruor 
 
 triliunals. arc often nearly c\cnl3- divided in opinion npon a clirficult 
 (lucslion of law. Hut when a decision is made, after a court's best 
 ctl'orts to reach a correct conclusion, it ouj^ht not to be open to re- 
 vision merely because it seems to the defeated party to be wrong, 
 (^n the other hand, if by any accident, oversight or inadvertence a 
 Avrong conclusion should be reached in any case, the judges who 
 made tlie decision presumably would be more desirous than any one 
 else to correct the error. Accordingly, in such a case they would 
 welcome a suggestion in the interest of justice, from anybody, at 
 any time while they have the power to revise the decision. The 
 practice of the court in reference to such suggestions from a party 
 is stated in IJ'all v. Old Colony Trust Co., 187 Mass. 275, 278, as 
 follows : "Such an application has no standing under our laws as a 
 recognized part of our procedure, but is received only as friendly in- 
 formation to the justices of an oversight or manifest error, which 
 in the opinion of tlie justices should call for correction or re-argu- 
 ment. 2\ rgument is not heard upon such an application, nor should 
 the application itself contain any argument, but it should suggest the 
 error relied on." If such a suggestion indicates an error, the court, 
 of its own motion, will do anything in its power to accomplish jus- 
 lice and protect the rights of the parties. But happily there is sel- 
 dom occasion to do anything of this kind, and it would be likely to 
 ivork injustice rather than justice, to permit a party, by presenting 
 iuch an application, to postpone as of right the entry of final judg- 
 ment, after a case has been through all the earlier stages of litiga- 
 tion, and has been finally decided with due deliberation by the court 
 of last resort. If the justices, after receiving such an application, 
 do not recall the rescript, or otherwise suggest a postponement of 
 action by the lower court, the action of that court should be governed 
 by the rule stated in Shannon v. Shannon, 10 Allen (Alass.) 249, in 
 these words : "The application to tlie court holden by a single judge, 
 to postpone entering a judgment, for the purpose of affording the 
 ]>arty an opportunity for a re-argument upon a case already decided 
 by the full court, was a matter within the discretion of the judge, 
 and his ruling refusing such application does not furnish any ground 
 for a bill of exceptions." On the face of the record the case was 
 ripe for judgment, and there was no error of law in making the 
 order. ' 
 
 Judgment affirmed.
 
 STORM Z'. UNITED STATES 8/7 
 
 SECTION 7. REVIEW BY THE COURT 
 
 STORM V. UNITED STATES 
 
 Supreme Court of the United States, 1876 
 
 94 U. S. 76 
 
 Error to the Circuit Court of the United States for the District 
 of California. Action on a bond given by Storm and Shroder, con- 
 tractors, and their sureties, to the United States, in the sum of 
 $12,000, conditioned to perform tlie covenants of an agreement 
 to furnish oats, hay, etc., made with the assistant quartermaster 
 of the army. There was a verdict and judgment for the plaintiff for 
 $2,615.40 and the defendants brought error. ^* 
 
 Clifford, J. : Errors of the circuit court resting in parol can 
 not be reexamined in this court by writ of error. Instead of that, 
 the writ of error addresses itself to the record; and the rule is, that, 
 whenever the error is apparent in the record, whether it be made to 
 appear by bill of exceptions, an agreed statement of facts, or by 
 demurrer, the error is open to reexamination and correction. 
 
 Whatever error of the court is apparent in the record, whether 
 it be in the foundation, proceedings, judgment, or execution of the 
 suit, may be reexamined and corrected; but neither the rulings of 
 the court in admitting or excluding evidence, nor the instructions 
 given by the court to the jury, are a part of the record, unless made 
 so by a proper bill of exceptions. Suydam v. JJ'illianison, 20 How. 
 (U. S.) 433. : • . . 
 
 The action is an action of debt founded on the bond given by 
 the defendants to secure the faithful performance of covenants 
 contained in their previously described written agreement. Refer- 
 ence has already been made to all the exceptions taken by the de- 
 fendants to the rulings of the court during the trial before the jury; 
 but it is also objected in argument here that the bond described in 
 the complaint was not produced at the trial, and that no copy of it 
 was ever filed in the case. Such an objection, if it had been made in 
 the court below, might have been available for the defendants, un- 
 less the plaintiffs had overcome it by producing the instrument, or 
 by showing its loss and due search for it without success, and had 
 offered secondary proof of its contents. Parol proof of the contents 
 of a lost instrument of the kind is admissible, provided it appear 
 that proper search has been made for it without success. 
 
 Had the defendants intended to insist that the bond should be 
 given in evidence, they should have made that intention known at the 
 trial; and, if not given in evidence, they might have requested the 
 court to direct a verdict in their favor, and, in case their request 
 had been refused, they would have had the right to except to the 
 ruling of the court in refusing their request for instruction. Nothing 
 of the kind was done ; and, for aught that appears in the record, it 
 
 '^The facts, as briefly indicated, are from tlie opinion of the court; only 
 so much of which as relates to exceptions is printed.
 
 8^8 APPEAL AND ERROR 
 
 jiiav be that: the bond was s;ivcn in c\iJcncc, or, if not, that the dc- 
 fendants waived the right to require its production. 
 
 Errors apparent in the record, though not presented by a bill of 
 exceptions, may be reexamined by writ of error in an appellate tri- 
 bunal ; but alleged errors, not presented by a bill of exceptions, nor 
 ajiparent on the face of the record, are not the proper subjects of 
 reexamination by writ of error in this court. 
 
 Parties dissatisfied with the ruling of a subordinate court, and 
 intending to seek a revision of the same in the appellate court, must 
 take care to raise the questions to be reexamined, and must see to 
 it that the questions are made to appear in the record ; for nothing 
 is error in law except what is apparent on the face of the record by 
 bill of exceptions, or an agreed statement of facts, or in some one 
 of the methods known to the practice of courts of error for the ac- 
 complishment of that object. Suydam v. IVilliamson, 20 How. (U. 
 S.) 433; Garland v. Davis, 4 How. (U. S.) 131; Steph. on Plead. 
 121 ; SlactDii V. Pomcroy, 6 Cr. (U. S.) 221 ; Strother v. Hutchinson, 
 4 Bing. N. C. 83.^= 
 
 Affirmed. 
 
 "Accord: I'an Garden v. Jackson ex dcm. Bogardus, 5 Johns. (N. Y.) 
 440, 467 (1809) ; Frier v. Jackson, 8 Johns. (N. Y.) 495 (1811) ; Traiibe v. 
 Coleman, i A. K. Mar. (Ky.) 233 (1818) ; Coburn v. Murray, 2 Maine 336 
 (1S23) ; CoUey v. Merrill, 6 Maine 50 (1829) ; I^ozvcll V. Sedgwick, 5 Whart. 
 (Pa.) 336 (1839); Keefer v. MattingJy, i Gill. (Md.) 182 (1843); Ward v. 
 Ward, 22 N. J. L. 699 (1850) ; Gordon v. McLeod, 20 Ala. 242 (1852) ; Hen- 
 dricks County Seminary v. Matlock, 9 Ind. 114 (1857); Mill er v. Hcrshc v. 
 59 Pa. St. tA (1868); Train v. Gridlcy, 36 Ind. 241 (1871) ; Russell v. 
 Dcnnison, 45 Cal. 337 (1873) ; Tenipleton v. Krancr, 24 Ohio St. 554 (1874) ; 
 Ncely V. Wright, 72 111. 292 (1874); Cogan V. Cook, 22 Minn. 137 (1875); 
 Standard Oil Co. v. Amazon Gas Co., 79 N. Y. 506 (18S0) ; Standish v. Old 
 Colony R. Co., 129 Mass. 158 (1S80) ; Martin V. Fonlkc, 114 111. 206, 29 N. E. 
 683 (1S85) ; Tasker v. Sheldon, m Pa. St. 107 . 7 Atl. 762 (1887) ; Ditryea v. 
 Vosbnrgh, i2i'^7Yrs77 2^ N. E. 308 (1890) ; Wicks v. Thompson, 129 N. Y. 
 634, 29 N. E. 301 (1891) ; Pavne v. Diciis, 88 Iowa 423, 55 N. W. 483 (1893) ; 
 Finrh V Cnnrnde. i=,A Pa St. -^26, 26 Atl. 368 (1893) ; Potts V. Evans, 58 N. J. 
 £7384, 34 Atl. 4 (1895) ; Meaderv. Cornell, 58 N. J. L. 375, 33 Atl. 960 (1895) ; 
 Jung V. Keuffel, 144 N. Y. 381, 39 N. E. 340 (1S95) ; Wilson v. V/ilson, 93 
 Va. 546, 25 S. E. 596 (1896) ; La Grange Bank v. Cotter, loi Ga. 134. 28 S. E. 
 644 (1897); A''. Y. Life Ins. Co. v. Macoviber, 169 ]\Iass. 580, 48 N. E. 776 
 (1897) ; Phillips V. Shack ford, 21 R. I. 422, 44 Atl. 306 (1899) ; Post v. Hart- 
 ford S. Ry., 72 Conn. 362, 44 Atl. 547 (1899) ; Marshall v. John Grosse Cloth- 
 ing Co., 184 111. 421, 56 N. E. 807, 75 Am. St. 181 (1900) ; Netherlands S. S. 
 Co. V. Diamond, 128 Fed. 570 (1904); McDowell v. Kent, 153 N. Car. 555, 
 69 S. E. 626 (1910) ; Kunkel v. Chicago Consolidated Tr. Co., 156 111. App. 
 393 (1910) ; fry_ v_ Kfiter. A^ Pa. .Super. Ct. ■^^8 (i Qii) ; Donovan v. Davis, 
 85 Conn. 394rS2 Atl. 1025 (1912)"; Skeele Coal Co. v. Arnold, 200 Fed. 393 
 (1912) ; Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972 (1912) ; Mower v. 
 Beard, 212, Mass. 198, 99 N. E. 971 (1912) ; Given v. Johnson, 213 Mass. 251, 
 100 N. E. 369 (1913) ; Bens v. Central R. Co., 82 N. J. L.. 197, 82 Atl. 431 
 (1912); People V. Board of Review, 263 111. 326, 105 N. E. 128 (1914); 
 Britt V. East Side H. Co., 25 Cal. 231, 143 Pac. 244 (1914) ; Payne v. State, 
 10 Ala. App. 85, 65 So. 262 (1914) ; Norton v. Pacific P. & L. Co., 79 Wash. 
 625, 140 Pac. 905 (1914) ; Alwart Bros. Coal Co. v. Royal Colliery Co., 211 
 Fed. 313 (1914); Tyler v. Woerner, 158 Ky. 710, 166 S. W. 178 (1914)- 
 An exception is as necessary when the question comes up on case-made as on 
 bill of exceptions and writ of error. Turner v. Grand Rapids, 20 Mich. 390 
 (1870).
 
 NALLE V. OYSTER 879 
 
 NALLE V. OYSTER 
 
 Supreme Court of the United States, 1913 
 
 230 C7. S. 165 
 
 Writ of error to review a judgment of the Court of Appeals of 
 the District of Columbia affirming a judgment of the Supreme Court 
 of the district in favor of the defendant in an action for libel. The 
 first count of the declaration averred that the defendants, members 
 of tlie board of education, had published a false and defamatory 
 libel concerning the plaintiff, a teacher. To the first count the de- 
 fendants demurred and the demurrer was sustained. The court of 
 appeals affirmed judgment for the defendants, ignoring the first 
 count because no exception was taken by plaintiff to the ruling of 
 the court sustaining the demurrer.®^ 
 
 Pitney, J. : Respecting the necessity for an exception to the 
 court's ruling in sustaining the demurrer to the first count, counsel 
 for defendants in error have not attempted to uphold the position 
 taken by the court of appeals. The court cited no statute, rule or 
 other authority for its position, and we have been unable to find 
 any. 
 
 The practice of bills of exceptions is statutory. By the ancient 
 common law, a writ of error lay only for an error in law apparent 
 upon the judgment roll — what is now called the "strict record"- — or 
 for an error in fact, such as the death of a party before judgment. 
 (See Green v. Watkins, 6 Wheat. (U. S.) 260-263.) For an errone- 
 ous decision that did not appear upon the record there was no redress 
 by writ of error. To relieve this, the Stat. Westm. II, 13 Edw. I, 
 ch. 31 (i Eng. Stat, at L. 99; Bac. Abr., title "Bill of Exceptions"), 
 v/as enacted more than six hundred years ago, providing that one 
 who alleged an exception should write it out and require the 
 justices to put their seals to it, and that if upon review "the excep- 
 tion be not found in the roll, and the plaintiff show the exception 
 written, with the seal of the justice put to, the justice shall be com- 
 manded that he appear, etc., and if he can not deny his seal they 
 shall proceed to judgment according to the exception," etc. Under 
 this act, and state statutes modeled after it, it has always been held 
 the error appearing upon the face of the record may be assigned 
 as groimd for reversal, although no exception be taken.^^ And, on 
 
 *°Tlie statement of facts is abridged from the opinion of the court and 
 only so much of the case given as relates to writs of error. On the merits of 
 the question raised by the defendant's demurrer to the first count it was held 
 that the court erred in sustaining the demurrer and judgment was reversed. 
 
 "Citing Slacurn v. Pomery, 6 Cranch. (U. S.) 221, 3 L. ed. 204 (1810) ; 
 Mocker's Heirs v. Thomas, 7 Wheat. (U. S.) 530, 5 L. ed. 515 (1822) ; 
 Woodward v. Brown, 13 Pet. (U. S.) i, 10 L. ed. 31 (1839) ; Bennett v. 
 Butterworth, li How. (U. S.) 669, 13 L. ed. 859 (1850) ; Siiydam v. William- 
 son, 20 How. (U. S.) 427, 15 L. ed. 978 (1857) ; Nciv Orleans Insurance Co. 
 V. Piacjgio, 16 Wall. (U. S.) 378, 2i_ L. ed. 358 (1872) ; Bait. & Potomac R. 
 Co. V. Trustees of Sixth Presbyterian Church, 91 U. S. 127, 23 L. ed. 260
 
 S8o Arrr.AL and i-.kror 
 
 the other hand, tlic funclitMi of an cxccplion is not confined to rul- 
 ings made ujion the trial of the action. As pointed out by Lord 
 Coke (2 Inst. 427) : "This (i. c., an exception taken under the Stat. 
 W'cstni. 11) extendeth not only to all pleas dilatory and peremptory, 
 etc., and (as hath been said) to prayers to be received, oyer of any 
 record or deed, and the like; but also to all challcnj^es of any jurors, 
 and any material evidence given to any jury, which by the court is 
 overruled." And see Defiance Fruit Co. v. Fox, 76 N. J. L. 482, 489. 
 Except as modi'aed by statute, the practice of the courts of the 
 District of Columbia is modeled upon that which obtained in the 
 courts of Maryland at the time of the cession. Act of February 27, 
 1801, section i, 2 Stat. 103, chapter 15. By act of INIarch 2, 1889, 25 
 Stat. 872, chapter 392, Congress provided for the making and publish- 
 ing of a compilation of the laws then in force in the district, to be 
 made by commissioners appointed by the Supreme Court of the dis- 
 trict. The result was the Abert & Lovejoy Compilation, and in it (p. 
 442, section 5) the Stat. Westm. II (13 Edw. I, chapter 31, section i) 
 is included. Lender the settled practice in Maryland (as elsewhere) 
 under that statute, a bill of exceptions is unnecessary and inappro- 
 priate for bringing under review a ruling of the court upon a de- 
 murrer to the pleadings, since the pleadings form a part of the record 
 and show upon their face the facts upon which the question of law is 
 raised.^^ 
 
 (1875). Accord: Hamlin v. Reynolds, 22 111. 207 (1859) Coffman v. Wilson, 
 2 Mete. (Kv.) 542 (18^9); Mix v. Nettlcton, 29 111. 245 (1862); Wiggins 
 ~Fcrry Co. V.' People, loi 111. 446 (1882) ; Barnes v. Scott, 29 Fla. 285, n So. 48 
 (1892) ; Nylan V. Renhard, 10 Colo. App. 46, 49 Pac. 266 (1897) ; Garfield Co. 
 V. Leonard, 26 Colo. 145, 57 Pac. 693 (1899) ; Murray v. Sontherland, 125 N. 
 Car 17^, 34 S. E. 270 (1899) ; Dow v. Dcissner, 105 Wis. 385, 80 N. W. 940, 
 81 N. W. 671 (1900) ; Merker v. Belleville Distillery Co., 122 111. App. 326 
 (1905) ; Hanson v. Ncal, 21s Mo. 256, 114 S. W. 1073 (1908) ; Hartford Fire 
 Ins. Co. V. Hollis, 58 Fla. 268, 50 So. 985 (1909) ; Plattcter v. Paulson-Elhng- 
 son Lumber Co., 149 Wis. 186, 135 N. W. 535 (1012). Contra: Hews w. Stone- 
 hraker 132 Iowa 608, 109 N. W. 1092 (1906) ; Guthrie v. Fisher, 2 Idaho 102, 
 6 Pac. Ill (1885) ; Cowan v. Huffman, 130 Ind. 600, 28 N. E. 619 (1892) ; 
 Petersborough Bank v. Des Moines Sav. Bank, no Iowa 519, 81 N. W. 786 
 ( 1900) ; Gleason v. McGinnis, 30 Ind. App. 4, 65 N. E. 191 ( 1902) ; so also 
 where judgment for want of a sufficient affidavit of defense is refused. 
 1ju^^2dlh - ^ '^ ^ '^'"' '^- ^"^^ ''<^^"'^- 92 Pa. St. 364 (1879) ; Sj_cnrity_S_^Co. 
 yr-^^[^f^; r;Z, ^ T? ; ? P^ .sT"^?;r "74'7u[rArTTgQ51T~Ang~see Norton v. Lilley, 
 210 Mass. 214, 96 N. E. 351 (191 1 ). Generally, an error apparent on the face 
 of the record may be reviewed by the appellate court although no exception 
 was taken thereto. Rathbone v. Rathbone, 4 Pick. (Mass.) 89 (1826) ; H offer 
 V. Wight man, 5 Watts (Pa.) 205 (1836); Sand ford v. Granger, 12 Barb. 
 (N. Y.) 392 (1852) ; Mills v. Thursbv, 12 How. Pr. (N. Y.) 385, 2 Abb. Pr. 
 432 (1856) ; In reFranksiQwnJluziiiiks^^ (1856) ; Terri- 
 
 tory V. VirgtmalV~Co., 2 Mont. 96 (1874) ; Wiggins Ferry Co. v. People, 
 1 01 111. 446 (1882) ; Morgan v. Botsford, 82 Mich. 153, 46 N. W. 230 (1890) ; 
 Cullop V. Leonard, 97 Va. 256, 33 S. E. 611 (1899) ; Griffith v. Richmond, 126 
 X Car 377, 35 S. E. 620 (1900) ; In re Middtetown Road, 15 Pa. ^uper^ Ct. 
 167 (1900); Grissom v. Beidlemalh~35 Ukia. 343, 129 Pac."'^3 (I912I ; 
 Fisher v. Leader Pub. Co., 22a^Pa,_2gq,M^At\. 776 (1913) ; Hynds v. Hynds, 
 2^3 Mo. 20, 161 S. W7gi2 Ti9i3)- ., ,, „ -, , o 
 
 ""Blake V. Pitcher, 46 Md. 4.=^3 (1877) ; Wilson v. Merryman, 48 Md. 328 
 (1877) ; Lee v. Rutlcdge, 51 Md. 311 (1878) ; Davis v. Carroll, 71 Md. 508, 
 18 Atl. 965 (1889).
 
 SIBLEY V. LEEK 88 1 
 
 By the "Act to establish a code of law for the District of Colum- 
 bia," approved March 3, 1901, 31 Stat. 1189, ch. 854, Congress en- 
 acted that the common law, and all British statutes in force in Mary- 
 land on the twenty-seventh day of February, eighteen hundred and 
 one, should remain in force, except so far as inconsistent with or 
 replaced by, some provision of the code. We find nothing in the code 
 or in the rules of practice established under it, to require an excep- 
 tion in order that an error apparent upon the record may be re- 
 viewed. 
 
 SIBLEY v. LEEK 
 
 Supreme Court of Arkansas, 1885 
 
 45 Arh. 346 
 
 Appeal from Pulaski Circuit Court. 
 
 Smith, J.: The cause of action was the killing of live stock by 
 the train of a railroad operated by a receiver. The action was begun 
 before a justice of the peace, and damages were laid at S130. The 
 question of jurisdiction has not been raised, but can not be over- 
 looked. As the damages claimed exceeded $100, and arose out of an 
 injury to personal property, the justice had no jurisdiction over 
 the subject matter of the controversy. Constitution of 1874, article 
 7, section 40; Little Rock, &c., R. Co. v. Manees, 44 Ark. loo.^^^ 
 
 The_ judgment of the Pulaski Circuit Court is vacated and the 
 cause dismissed. 
 
 *'aThat the court below was without jurisdiction of the subject matter 
 of the action or proceeding may be first raised on appeal or the appellate 
 court may on its own motion notice such want of jurisdiction. Mansfield 
 Cold. & L. M. R. Co. V. Swan, iii U. S. 379, 28 L. ed. 462 (1883) ; Morris v. 
 Gilmer, i2g U. S. 315, 32 L. ed. 690 (1889) ; Wyaif v. Judge, 7 Port. (Ala.) 37 
 (1838) ; Gifford v. Thorn, 7 N. J. Eq. 90 (1848) ; Green v. Creighton, 18 Miss. 
 (10 Sm. & M.) 159, 48 Am-. Dec. 742 (1848) ; Gilland v. Sellers, 2 Ohio St. 223 
 (1853) ; Wildman v. Rider, 23 Conn. 172 (1854) ; Steamboat Bncll v. Long, 
 18 Ohio St. 521 (1867); Riley V. Lowell, 117 Mass. 76 (1875); Graham v. 
 Ringo, 67 Mo. 324 (1S78) ; Groves v. Richmond, 53 Iowa 570, 5 N. W. 763 
 (1880) ; Schiff v. Solomon, 57 Md. 572 (1882) ; Fiester v. Shephard, 92 N. Y. 
 251 (1883); Fowler v Eddy, 110 Pa St. 117, I Atl. 789 (1885); Smazv v. 
 Cohen, 95 N. Car. 85 liHiib) ) FlanVWamTfactiiring Co. v. Racev, 69 Wis. 246, 
 34 N. W. 85 (1887) ; Buffalo V. Pocahontas, 85 Va. 222, 7 S. E. 238 (1888). 
 Objection to the jurisdiction of the person must be made below. Bradstreet 
 V. Thomas, 12 Pet. (U. S.) 59, 9 L. ed. 999 (1838) ; Rhode Island v. Massa- 
 chusetts, 12 Pet. (U. S.) 657, 9 L. ed. 1233 (1838) ; Davis v. McEnaney, 150 
 Mass. 451, 23 N. E. 221 (1890) ; Perkins v. Hayward, 132 Md. 95, 31 N. E. 
 670 (1892) ; Wells v. Patton, 50 Kans. 732, 33 Pac. 15 (1893) ; In re Thomp- 
 son, loi Cal. 349, 35 Pac. 991, 36 Pac. 98 (1894) ; North Hudson Co. Ry. v. 
 Flannagan, 57 N. J. L. 696, 32 Atl. 216 (1895) ; Adams v. Crown Coal Co., 
 198 111. 445, 65 N. E. 97 (1902); Singleary v. Boerner-M orris Candy Co., 
 129 Ky. 556, 112 S. W. 637 (1908) ; McCullough v. R ailway Mai l Assn.. 22 ; 
 Pa. 118, 73 Atl. 1007 (1909) ; Hill v. Walker, 167 Fed. 241 (1909) T"^ 
 
 56 — Civ. Prog.
 
 8^J APPEAL AND ERROR 
 
 CHISM V. SMITH 
 
 Supreme Court of New York, Appellate Division, 1910 
 13S App. Div. (N. Y.) 715 
 
 The plaintiffs were owners of land bordering Lake George, in- 
 cluding avenues and streets, one of which known as White avenue 
 ran to the lake shore. The defendant built a boat house and dock 
 for his private use beyond low-water mark directly across what 
 would have been White avenue, had it extended into the water, and 
 also in front of block 13. The plaintiffs brought an action of eject- 
 ment, on the trial of which judgment was given ejecting the defend- 
 ant from tliat part of his boat house and pier in the lake adjacent to 
 block 13, but refusing judgment so far as the same was adjacent to 
 White avenue. Both plaintiff and defendant appealed.®" 
 
 Houghton, J. : We are of the opinion that the complaint should 
 have been dismissed on the ground tliat an action of ejectment is 
 not the proper remedy. While the owners of uplands have the right 
 of access to the water and the right to build such docks and piers 
 from such lands into the water as will not interfere witli naviga- 
 ion, this right is only an appurtenance or easement incident to the 
 ov/nership of the uplands. If a private person builds any structure 
 which interferes witli this littoral right of the owner of the upland 
 he can by- appropriate action cause its removal. Not, however, by 
 ejectment, for the right to eject depends upon superior title to the 
 land itself. Such rights incident to the ownership of the shore are 
 incorporeal hereditaments. Ejectment does not lie for an incor- 
 poreal hereditament but only for a corporeal hereditament of which 
 a sheriff* can deliver possession. Rozvan v. Kelsey, 18 Barb. (N. Y.) 
 484; Moore v. Brown, 139 N. Y. 127; Butler v. Frontier Telephone 
 Co., 186 N. Y. 486. It is apparent that the sheriff could not put the 
 plaintiffs in possession of lands not belonging to them but belonging 
 to the people of the state, whatever the character of the defendant's 
 occupation might be. 
 
 Notwithstanding the claim of the plaintiffs on tlie trial and upon 
 the argument on appeal that the action is purely one of ejectment 
 and that it is maintainable as such, it is suggested that the action 
 may be treated, in view of the answer of defendant, as an equitable 
 action for the removal of structures interfering with plaintiff's right 
 in tlie waters of the lake. The defendant plead several special de- 
 fenses, all, however, tending to defeat the plaintiffs' title. All the 
 evidence introduced upon the trial was pertinent to an action of 
 ejectment. At the close of the plaintiffs' case the defendant moved 
 for dismissal of the complaint on the ground that the plaintiffs had 
 shown no title to the property in question, and in his requests to the 
 court to find he specifically asked the court to rule that the action 
 
 **The statement of facts is from the opinion of the court, part of which 
 is omitted.
 
 CHISM V. SMITH 883 
 
 was not maintainable and that an incorporeal hereditament could not 
 be recovered in an action of ejectment. The learned counsel for 
 the plaintiffs in his brief says that the gist of the defendant's objec- 
 tion to recovery by plaintiffs v^as that the dock (as well as the boat- 
 house) was not proved to be on land belonging to plaintiffs. There 
 was not, therefore, either on the trial or tlie argument on appeal any 
 abandonment by plaintiffs of the position that ejectment would lie, 
 or surrender by the defendant of his attitude that ejectment was not 
 the proper remedy, and it would be doing violence to the pleadings 
 and the course of the trial to treat the present action as one in equity 
 when all parties have consistently maintained that it was one at 
 law.»° 
 
 Judgment reversed and new trial granted. 
 
 Kellogg, J., and Smith, P. J., dissent. 
 
 ""The appellate court will determine a cause on the theory on which it 
 was tried in the court below. Stapenhorst v. Wolff, 65 N. Y. 596 (1875) ; 
 Larison v. Pohlmus, 39 N. J. Eq. 303 (1884) ; Walls v. Campbell, 125 Pa. St. 
 346, 17 Atl. 422 (18S9) ; Biirbank v. Bigclow, 154 U. S. 558, 19 L. ed. 51 
 (1893) ; Pillars V. McConnell, 141 Ind. 670, 40 N. E. 689 (1895) ; Galligan v. 
 Old Colony St. R. Co., 182 Mass. 211, 65 N. E. 48 (1902) ; Lesser Cotton Co. 
 V. St. Louis R. Co., 114 Fed. 133 (1902) ; Indemnity Co. v. Thompson, 83 Ark. 
 575, 104 S. W. 200, 10 L. R. A. (N. S.) io64n (1907); Madison v. Octavia 
 Oil Co., 154 Cal. 768, 99 Pac. 176 (1908) ; Conk ling v. Standard Oil Co., 
 138 Iowa 596, 116 N. W. 822 (1908) ; Planters P. Co. v. Webb, 156 Ala. 551, 
 46 So. 977 (1908) ; Edgewater & Ft. L. R. Co. v. Valvolene Oil Co., 76 N. J. 
 L. 789, 72 Atl. 85 (1908) ; Hunter v. Allen, 127 App. Div. 572, in N. Y. S. 820 
 (1908) ; Dolinski v. First Nat. Bank of Piftsbttrg (Tex. Civ. App.), 122 
 S. W. 276 (1909); Gelford v. Hatford, 85 Conn. 689, 84 Atl. 85 (1912) ; 
 American Sales B. Co. v. Pope, 7 Ala. App. 304, 61 So. 45 (1913) ; American 
 Surety Co. of N. Y. v. Spice, 119 Md. i, 85 Atl. 1031 (1913) ; Richardson y . 
 Flozver 248 Pa. 35, 93 Atl . 777 (1915) ; Schuls v. New York S. & W. R. Co. 
 UN. J J, 94 Atl. 579 (igiD- 
 
 So, generally, an appellant will not be permitted to take advantage of 
 errors for which he himself was responsible. Clcmson v. President & 
 Directors of State Bank, 2 111. (i Scam.) 45 (1832) ; Miidget v. Kent, 18 
 Maine 349 (1841) ; Willinms v. Cnrr^ i_ Rawle (PaJ 420 (1829) ; Shropshire 
 V. McClain, 6 Ark. 438 (1846) ; Robitison v. While, 42 Maine 209 (1856) 
 Denny v. Moore, 13 Ind. 418 (1859) ; Nezvton v. Allis, 16 Wis. 197 (1862) 
 West V. Lynn, no Mass. 514 (1872) ; Fish v. Bangs, 113 Mass. 123 (1873) 
 Wilson V. Blake, 53 Vt. 305 {iSSo) ; ^Benson y. Maxwell. loq Pa. Sj. 274 
 (1884) ; Marx v. Heidenheimer, 63 Tex. 304 (1885) ; McGi7/m v. Bennett. 
 132 U. S. 445, 33 L. ed. 422 (1889) ; Harris v. Lloyd, 11 Mont. 390, 28 Pac. 
 736, 28 Am. St. 475 (1891) ; Williams v. Lillcy, 67 Conn. 50, 34 Atl. 765, 37 
 L. R. A. 150 (1895) ; Warren v. Sheldon, 173 111. 340, 50 N. E. 1065 (1898) ; 
 People v. Offerman, 84 111. App. 132 (1899) ; Poehler v. Reese, 78 Minn. 71, 80 
 N. W. 847 (1899) ; Lewis v. Tapnian, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385 
 (1900); Pantall _v Rochester Coal Co., 204 Pa. 158, 53 Atl. 751 (1902); 
 Eppens V. LittTeJotm, 104 IN. Y. 187, 5« JNI. E. 195, 2 L. K. A. 8"ii (iQOo) ; 
 Zimmerman v. Harding, 227 U. S. 489, 57 L. ed. 608 (1913) ; Davidson Emit 
 Co. V. Produce Distributors Co., 74 Wash. 551, 134 Pac. 510 (1913) ; Chicago 
 & E. R. Co. v. Ohio City Lumber Co., 214 Fed. 751 (1914) ; Himter v. W. M. 
 Roylance Co., 45 Utah 135, 143 Pac. 140 (1914).
 
 SS4 APPEAL AXD ERROR 
 
 GLINES r. CROSS 
 Court of Queen's Bench for AIanitoba, 1899 
 
 IJ Manitoba 442 
 
 Plaintiff sued to recover a commission upon a sale of land, 
 claimed to have been effected by tliem for the defendant. Judjjmcnt 
 was at lirst given for the plaintiffs for $375, the full amount claimed, 
 but upon application under section 308 of the County Courts Act, 
 this amount was reduced by one-half. Plaintiffs appealed upon the 
 grounds that the clause did not give power to make tlie reduction 
 and that plaintiffs were entitled to the full amount.'-^^ 
 
 L. Cleans for plaintiffs. 
 
 C. P. Wilson for defendant. Defendant submits that it was not 
 shown that the plaintiff's were the real moving cause of the sale and 
 that in strictness they should not recover anything. Whit comb v. 
 Bacon, 170 Mass. 479, 49 N. E. 742; Glasscock v. Vanfleet, 100 
 Tenn. 603, 46 S. W. 449. Upon this appeal the court can set aside 
 the judgment entirely. Rockzvood Election Case, 2 Manitoba 129. 
 In any event the judgment appealed from can not be disturbed. 
 
 KiLLA^r, J. : It is claimed by the defendant that the plaintiff's 
 were not entitled to any compensation, and he asks the court to set 
 aside entirely the judgment for the plaintiff, although he has not 
 appealed. I do not think tliat this course is now open. The County 
 Courts Act, as amended by 59 Vic, chapter 3, section 2 (M. 1896), 
 gives to any party dissatisfied with a judgment of a county court an 
 opportunity to obtain relief by an appeal. It does not appear to 
 contemplate his obtaining it without taking upon himself the burden 
 of a direct appeal.^- By section 319 the appeal is to be brought into 
 
 "Only so much of the case as relates to the appeal is printed. 
 
 ^*A defendant in error or appellee can not have affirmative relief as to 
 matters upon Vvhich he has not appealed or brought error. Canter v. Ameri- 
 can Ins. Co. of New York, 3 Pet. (U. S.) 307, 7 L- ed. 688 (1830) ; Glassncr 
 v Wheatoii, 2 E. D. Smith (N. Y.) 352 (1854); Bush v. Schooner Aionso, 
 2 Cliff. (U. S.) ^48 (1866) ; The Maria Martin, 12 Wall. (U. S.) 31, 20 L. ed. 
 251 (1870) ; Bnndy v. Youmans, 44 Mich. 376, 6 N. W. 851 (1880) ; Hoff v. 
 Hoff, 48 Mich. 281, 12 N. W. 160 (1S82) ; May v. Gates, 137 Mass. 389 (1884) ; 
 Texas & N. O. R. Co. v. Skinner, 4 Tex. Civ. App. 661, 23 S. W. 1001 (1893) ; 
 United States v. Blackfcather, 135 U. S. 180, 39 L. ed. 114 (1894) ; I^ane v. 
 Parsons, 108 Iowa 241 (1809) ; Bolles v. Outing Co., 175 U. S. 262, 44 L. ed. 
 156 (1899) ; Southern Pine Lumber Co. v. Ward, 208 U. S. 126, 52 L. ed. 420 
 (1907) ; Masters v. IVavne Automobile Co., 198 Mass. 25, 84 N. E. 103 (1908) ; 
 McElroy v. McCarvill'e (R. I.), 71 All. 646 (1909); Herpel v. Hcrpel, 162 
 Mich. 606, 127 N. W. 763 (1910) ; Vanhoose v. Wheeler, 141 Ky. 746, 133 S. W. 
 779 (1911) ; Smith v. Diamond Ice Co., 65 Wash. 576, 118 Pac. 646 (1911) ; 
 Portuguese Fraternity v. Liberty Trust Co., 21 S Mass. 27, 102 N. E. 96 (1913)- 
 So, in the absence of a statute authorizing a different practice, an appellee or 
 defendant in error who takes no appeal or writ of error, is not entitled to 
 have the appellate court consider, review or decide rulings against him below. 
 Texas Co. v. Central Fuel Oil Co., 194 Fed. I (1912) ; Chittenden v. Brevrtcr, 
 69 U. S. (2 Wall.) 191, 17 L. ed. 839 (1864) ; The Stephen Morgan, 94 U. S. 
 
 199, 24 L. ed. 266 (1876) ; Scotten v. Sutter, 37 Mich, 526 (1877) ; T^'^^o & 
 inn Arbor R. Co. v. Johnson, 49 Mich. 148, 13 K. W. 49^ (18S2) ; Holdsom- 
 
 599, 
 A
 
 GLINES v. CROSS 885 
 
 this court by praecipe, which, under section 320, is to set out the 
 nature of the apphcation and the grounds therefor. No provision is 
 made for any notice by a respondent of his objections to the judg- 
 ment. Subject to the powers of amendment, the questions to be con- 
 sidered and the rehef to be given on the appeal are such as are 
 raised or sought by the praecipe, or as may be incident thereto. The 
 opinion cited from the Rockwood Election Case, 2 Manitoba 129, 
 while entitled to the highest respect, Vv^as that of only one member of 
 the court upon a point not considered by the other members, and it 
 referred to an entirely different statute. 
 
 On the other hand, I think that the objection to a reconsideration 
 of his judgment by the judge of the county court entirely fails. Sec- 
 tion 308 authorizes a reversal or a variation of the judgment, and 
 the reduction in amount was certainly a variation. 
 
 Bain, J. : The defendant has not appealed against the judgment, 
 so we have not to consider if it was proper that the plaintiffs should 
 recover for their services ; but, assuming that it v/as, I think the 
 amount allowed by the county court judge was quite sufficient com- 
 pensation. 
 
 Dubuc, J., concurred. 
 
 Appeal dismissed with costs. ^^ 
 
 heck V. Fancher, 112 Ala. 469, 20 So. 519 (1895) ; Cox v. Stokes, 150 N. Y. 
 491, 51 N. E. 316 (1S98) ; South San Bernardino &c. Co. V. San Bernardino 
 Nat. Bank, 127 Cal. 245, 59 Pac. 699 ( 18Q9) ; Hinklev V. Reed, 182 111. 440, 55 N. 
 E. 32,7 (1899) ; Rose v. Hale, 185 111. 378, 56 N. E. 1073, 76 Am. St. 40 (1900) ; 
 Moy v. Moy, iii Iowa 161, S2 N. W. 481 (1900) ; Carter v. Brewing Co., in 
 Iowa 457, 82 N. W. 930 (1900) ; Miller v. Michigan C. R. Co., 123 Mich. 374, 
 82 N. W. 58 (1900) ; National Mutual Building Assn. v. Burch, 124 Mich. 57 
 (1900); Westminster College v. Piersol, 161 Mo. 270, 61 S. W. 811 (1900); 
 Field V. Barber Asphalt Pav. Co., 194 U. S. 618, 48 L. ed. 1142 (1904); 
 Haas V. Malto-Grapo Co., 148 Mich. 3^8, in N. W. 1059 (1907); Turner v. 
 Mills (Okla.), 97 Pac. 558 (1908); b'Ncill v. Wolcott Co., 174 Fed. 527 
 (1909); Tilton V. Gates Land Co., 140 Wis. 197, 121 N. W. 331 (1909); 
 Slmll V. Missouri Pac. R. Co., 221 Mo. 140, 119 S. W. 1086 (1909) ; Hatfield v. 
 Cline, 143 K^^ 565, 137 S. W. 212 (1911) ; Wells v. Knight, 32 R. I. 432, 80 
 Atl. 16 (1911) ; Leschen v. Patterson, 130 La. 557, 58 So. 336 (1912) ; Hibernia 
 Bank V. Whitney, 130 La. 817, 58 So. 583 (1912) ; Swager V. Smith, 194 Fed. 
 762 ( 1 9 1 2 ) ; Campbell v. Brandvzvine Co.. ^2 Pa. Super. Tt V^ < 1 91 3 ) ; 
 Johnson v. Foust, 158 Iowa 195, 139 N. W. 451 (1013) ; Carroll To^omrs. V. 
 We.stminster, 123 Md. 198, 91 Atl. 412 (1914); Slote v. Constantine H. Co., 
 182 Mich. 260, 148 N. Vv^. 666 (1914). 
 
 "^Cross assicrnments of error are frequently permitted by statutes or rules ; 
 see Childers v. Loudin, 51 W. Va. 559, 42 S. E. 637 (1902) ; Bryant v. Ander- 
 son, 5 Ga. App. 517, 63 S. E. 638 (1908) ; Jones v. Lampe, 85 Kans. 401, 116 
 Pac. 619 (1911) ; Kuh V. O'Reilly, 261 111. 437, 104 N. E. 5, 51 L. R. A. (N. S.) 
 420 (1914); Wheeler v. Thomas, 116 Va. 2=;9, 81 So. 51 (1914) ; Shartim v. 
 MtL^kogee, 43 Okla. 22, 141 Pac. 22 (1914) ; Hunter v. JV. R. Roylance Co., 45 
 Utah 135, 143 Pac. 140 (1914). And in some jurisdictions an appeal in equity 
 may open the whole case for consideration de novo. Neubert v. Massman, 
 37 Fla. 91, 19 So. 625 (1896) ; West v. West, 90 Iowa 41, 57 N. W. 639 (1894). 
 In proceedings for an accounting: compare Szi'ceney v. Neely, 53 Mich. 421, 
 19 N. W. 127 (1884) ; Moors v. Jf'ashburn, i=;9 Mass. 172, 34 N. E. 182 (1893) ;' 
 Gray v. Chase, 184 Mass. 444, 68 N. E. 676 (1903), with Cox v. Schermerhorn, 
 18 Hun (N. Y.) 16 (1879) ; Fo.'!ter v. Ambler, 24 Fla. 519. 5 So. 263 (1888). 
 For England see Riiles of the Supreme Court, Order LVIII, rule 6; Harris 
 v. Aaron, 36 L. T. (N. S.) 43 (.1877) ; The Beeswing, L. R. 10 Probate Div. 
 j8 (1884) ; Jones v. Stott, L. R. (1910) i K. B. 893.
 
 ?S6 APPEAL AXD EKROR 
 
 IN RE ]\IcXULTY'S ESTATE 
 
 Suprem e Court of Tennsylvania, 191 1 
 
 230 Pa. 3S7 
 
 Appeal by S. E. Kingslcy froiu a decree of the Orphans' Court 
 of Allegheny County dismissing exceptions to adjudication in re 
 first account of the Colonial Trust Company of Pittsburg, adminis- 
 trator d. b. n. c. t. a. of estate of P. J. McNulty, deceased. C. M. 
 Johnston and S. E. Kingsley each presented claims to the auditing 
 judge for commissions or compensation for selling certain real and 
 personal property. The claims were allowed by the orphans* court, 
 but Kingsley, being dissatisfied with the amount awarded him, ap- 
 pealed, alleging as error the action of the court in awarding com- 
 pensation to Johnson and not allowing his claim in full. Neither 
 the estate nor any other creditor appealed from the decree allowing 
 Johnston's claim. It appeared that if Kingsley was entitled to addi- 
 tional compensation there were funds in tlie hands of the account- 
 ant amply sufficient to pay the claim. °* 
 
 J\!estrezat, J. : Before a party has the right to appeal, he must 
 be aggrieved by the decree that it entered. If he is not aggrieved, he 
 is not affected or injured and, hence, has no standing to complain. 
 Under the circumstances of this case, it is apparent, we think> 
 that Kingsley was not aggrieved or injured by the decree allowing 
 compensation to Johnston. His right to compensation does not 
 depend upon Johnston's claim against the estate for services in the 
 sale of the property. If he rendered services to the estate in making 
 the sale and satisfied the court that he was entitled to compensa- 
 tion therefor, a decree should have been entered for him, regard- 
 less of any claim which Johnston may have against the estate for 
 similar services. It by no means follovv'S that if Johnston is entitled 
 to compensation for assisting in the sale of the property, that Kings- 
 ley did not also aid in making the sale and was entitled to com- 
 pensation for services rendered the estate. The claims of Johnston 
 and Kingsley were separate and distinct and whether either or both 
 should be allowed depended upon the ability of each party to sup- 
 port his claim by proper testimony. Kingsley is not injured by the 
 allowance of Johnston's claim. As already observed, there are funds 
 undistriluited in the hands of the accountant ample to meet any 
 claim which the court may award as compensation to Kingsley. He 
 therefore, has no standing to attack Johnston's claim or appeal from 
 the decree which allows it. So far as this appeal alleges error in 
 awarding Johnston's claim it is quashed."'' 
 
 "The statement of facts is abridged frorrt the court's opinion, part of 
 which is omitted. 
 
 "^Honc V. VanSchaich, 7 Paige (N. Y.) 221 (1838), per Walworth, Ch. : 
 "It is well settled that no person is authorized to appeal from a decree unless 
 he is aggrieved by it; and that a party v/ho is aggrieved by one part of a 
 decree only, can not by appeal call in question another part of the decree in
 
 IX RE m'xULTY's estate £87 
 
 The administrator has filed a paper book In which the claims of 
 Johnston and Kingsley are attacked and in which we are asked to 
 reject both claims. Unfortunately for the administrator, it has no 
 standing in this court to attack either claim. Until the contrary 
 appeared in its paper book, it seems to have been satisfied with the 
 amount awarded each of the two claimants. It has not taken an ap- 
 peal and, therefore, it can not contest the claims here. The only ap- 
 pellant and party who can be heard in this court is Kingsley, who 
 has appealed from the decree of the court below in refusing to allow 
 him sufficient compensation for his services in selling the Bijou prop- 
 erty. It must be conceded that the argument of the administrator 
 against Johnston's claim is not without force, but as it has not taken 
 the proper legal step to contest the claim by appealing from the de- 
 cree, we are not in a position to either hear or heed the argument. 
 Whether, therefore, Johnston is entitled to any commission or com- 
 pensation for services rendered in selling the Bijou property we are 
 not called upon to determine and, therefore, do not decide. The ad- 
 ministrator occupies the same position in regard to Kingsley's claim. 
 By its failure to appeal, it admits that it is satisfied with the decree.°° 
 
 Decree affirmed. 
 
 which he is not interested." Accord: Green v. Blachzvcll, 32 N. J. Eq. 768 
 (18S0) ; People v. Reis, 76 Cal. 260, 18 Pac. 309 (1888) ; Stribling v. Splint 
 Coal Co., 31 W. Va. 82, 5 S. E. 321 (1888) ; Hayes v. Klosky, 104 Ala. 418, 
 16 So. 533 (1803); Kcnnard v. Curran, 141 111. App. 621 (1908). So, also, 
 party on appeal can not urge alleged errors which concern some other per- 
 son or party not complaining thereof. WJiiting v. Cochran, 9 Mass. 532 
 (1813) ; Shirley V. Liicnhurgh, II Mass. 379 (1814) ; Morgan v. Crahb, 3 
 Port. (Ala.) 470 (1836); Arrington v. Cheatham, 2 Rob. (Va.) 492 (1843); 
 Cash 's Appeal, i Pa. St 166 (1843) ; Walker v. Jones, 23 Ala. 448 (1853) ; 
 Craves V. hdzvards, 32 Miss. 305 (1856) ; Clerk v. Barnett, 24 Ark. 30 (1862) ; 
 Kirby V. Corning, 54 V/is. 599, 12 N. W. 69 (1882) ; Lamb v. The Council 
 Bluffs Ins. Co., 70 Iowa 238, 30 N. W. 497 (1886) ; Coatcs v. Wilkes, 94 N. 
 Car. 174 (1886) ; Randolph v. Chisholm, 29 111. App. 172 (1888) ; Criglcr V. 
 Conner, 12 Ky. L. 502, 14 S. W. 640 (1890) ; Mor eland V. Houghton, 94 Mich. 
 548, 54 N. W. 285 (1S93) ; Kniger v. Braender, 3 Misc. 275, 2:^ N. Y. S. 324, 
 51 N. Y. St. 9c6 (1803) ; Grand G. A. O. D. v. Garibaldi Grove No. 71 of U. A. 
 O. of Druids, 105 Cal. 219, 38 Pac. 947 (1894) \ , C onshgJiocjicn T . Co. v. I ron 
 C. Co T(S7 P^ St. 589, 31 Atl. 934 (1895) ; Co nnor Y. ScHildt, i5 Pa Tguper. 
 Ct. 88 (1901) ; Clark v. Shazven, 190 111. 47, 6o"JN. E. lib (1901) ; Lanum v. 
 Patterson, 151 111. App. 36 (1909) ; Lanyon v. Lanquist, 157 111. App. 316 
 (1910) ; Gray V. Hayhurst, 1S7 111. App. 4S8 (1910) ; Alexander v. Vaughan, 
 106 Ark. 438, 153 S. W. 594 (1913) ; Chicago B. & Q. R. Co. v. Gilsdorff, 258 
 111. 212, loi N. E. 546 (1913). 
 
 "^Parties who are not before the appellate court by appeal or writ o£ 
 error have no standing to allege error. Morse v. Smith, 83 111. 396 ( 1876) ; 
 Anderson v. Silliman, 92 Tex. 560, 50 S. W. 576 (1899) ; Fitchie v. Brown, 
 211 U. S. 321, 53 L. ed. 202 (1908) ; Lee v. Powell, 122 La. 639, 48 So. 134 
 (1909) ; Lehman Co. v. Lcmoine, 129 La. 382, 56 So. 324 (1911) ; Akers v. 
 Lord, 67 Wash. 179, 121 Pac. 51 (1912) ; Sears v. Hull, 147 Ky. 745, 145 S. W. 
 760 (1912) ; Brown v. Bay City Bank & Trust Co. (Tex.), 161 S. W. 23 
 (1913).
 
 3S8 APPEAL A XI) l-.UROR 
 
 LINSON z'. SrAULDING 
 
 Supreme Court of Oklahoma, 1909. 
 
 22 Okla. 254 
 
 Dunn, J. : Tlils case presents an appeal from the judgment of 
 the District Court of Kingfisher County. There is but one point re- 
 Hed on by counsel for plaintiff in error to secure a reversal, which 
 is, that a motion for a new trial was overruled by the trial court pro 
 forma. No contention or claim is made that in fact tlic judgment 
 was wrong on the merits. 
 
 A case from the Supreme Court of the Territory of Oklahoma. 
 Board of Comwissioncrs of JJ^asJiifa County v. Hubble, 8 Okla. 169, 
 declared the familiar rule that : "Error is never presumed by the 
 Supreme Court ; it must always be shown affirmatively by the record, 
 or it will be presumed that no judicial error was committed by tlie 
 trial court, and the judgment must be sustained." 
 
 In the light of this, it will be seen that we must in the absence 
 of a showing of error in the case, conclude that the judgment of the 
 lov.-er court was correct in all particulars, that both parties had a fair 
 trial, that the court duly and fully considered their different claims, 
 and for its conclusion rendered a judgment in strict accordance with 
 the law giving proper relief to the proper party. This being true, 
 conceding the question to be properly raised, the ends of justice in 
 our judgment would not be attained by remanding such a case for 
 another trial for the reason here urged. 
 
 The cases of Lewis v. Hall, 11 Okla. 684, and Pinson v. Pren- 
 tise, 8 Okla. 143, appear to be in point on the question. In the case 
 of Lewis V. Hall, 11 Okla. 684, Justice Pancoast in the consideration 
 thereof, said: "If the judgment was correct, no good purpose could 
 be served by reversing the case, but, on the contrary, great injury 
 would be done to the defendant in error. The plaintiff in error 
 having failed to bring the case here in such form as to enable this 
 court to examine the entire record, and determine whether or not 
 there was, in fact, error in the judgment of the cotirt below, and the 
 presumption being in favor of the correctness of the judgment of 
 the trial court, this case must be affirmed." In the case of Pinson v. 
 Prcntise, 8 Okla. 143, Mr. Justice Hainer said : "The only question 
 that should be considered by this court is, did the trial court render 
 a proper judgment in the case? And, if the court rendered a proper 
 judgment, what sound reason can be given that the overruling of a 
 motion for a new trial, even pro forma, is prejudicial to the sub- 
 stantial rights of the plaintiffs? We can not assent to establish a 
 rule of practice in this territory which would require this court to 
 reverse a case upon such a frivolous ground, regardless of the mer- 
 its of the case, and the justness of the decision of the trial court." 
 
 The judgment of the trial court is accordingly affirmed.®'' 
 
 All the justices concur. 
 
 *' "The burden is always upon the party who avers error to make the 
 same appear affirmatively — nothinj^ is to be presumed ap;ainst a judgment. 
 The error, if any is charged, must be definitely shown." Per Duncan, J., in
 
 LINSON V. SPAULDING 889 
 
 Kieslikoivski V. Bostroni, 179 111. App. y^ (1913). Accord: Carroll v. Peake, 
 I Pet. (U. S.) 18, 7 L. ed. 34 (1828); Gram's Appeal, 4 Watts (Pa.) 43 
 (1835); Bagnell v. Brodcrick, 13 Pet. (U. S.) 436, lo L. ed. 235 (1839); 
 Graham v. Dixon, 4 111. 115 (1841) ; Conoway v. Weaver, x Ind. (Smith) 263 
 (1848) ; Proctor v. Hart, 5 Fla. 465 (1854) ; Hendrie v. Rippey, 9 Iowa 351 
 (1859) ; C"ra;n v. Cram, 2,3 Vt. 15 (i860) ; Mead v. i?tiwn, 32 N. Y. 275 (1865) ; 
 Wise V. Ringer, 42 Ala. 488 (1868) ; Sorq v. First G erman Evangelical St. 
 Paul's Cnnarrgation. 63 Pa. St . 156 '( l^^gY^'Pcahody V. McAvoy, 23 Mich. 
 526 (1871) ; Dritt v. Dodds^^S^nd. 63 (1871) ; Van Patten v. Wilcox, 32 Wis. 
 340 (1873) ; Loiveree v. Nezvark, 38 N. J. L. 151 (1875) ; Danvers v. Durkin, 
 14 Ore. 37, 12 Pac. 60 (1886) ; Moidthrop v. School Dist., 59 Vt. 381, 9 Atl. 
 608 (1887); Campbell v. Walls, yj Cal. 250, 19 Pac. 427 (1888) ; Vinyard v. 
 Barnes, 124 111. 346, 16 N. E. 254 (1888) ; Taylor v. Birely, 130 Ind. 484, 30 
 N. E. 696 (1S91) ; Donovan v. McCarty, 155 Mass. 543, 30 N. E. 221 (1892) ; 
 Berry v. Berry, 84 Maine 541, 24 Atl. 957 (1892) ; In re Bates, 105 Cal. 646, 
 38 Pac. 041 (1895) ; McCrimmen v. Parish, 116 N. Car. 614, 21 S. E. 407 
 (1895) ; Coonan v. Loewenthal, I2g Cal. 197, 61 Pac. 940 (1900) ; Hobbs v. 
 Warman, 63 Nebr. 703, 89 N. W. 255 (1902) ; Tandy v. St. Louis Transit Co., 
 178 Mo. 240, yj S. W. 994 (1903) ; Staniels v. Whitcher, ^2) N. H. 152, 59 Atl. 
 934 (1905) ; Waggaiaan v. Earle, 25 App. D. C. 582 (1905) ; Clements v. State, 
 51 Fla. 6, 40 So. 432 (1906) ; Merrill v. Milliken, loi Maine 50, 63 Atl. 299 
 (1905); Southern R. Co. v. Lester, 151 Fed. 573 (1907); Bantz v. Adams, 
 131 Wis. 152, III N. W. 69 (1907) ; Ropes v. Stezvart, 54 Fla. 185, 45 So. 31 
 (1907) ; Boat-wright v. Crosby, S^ S. Car. 190, 65 S. E. 174 (1909) ; Dailey v. 
 Aspen Democratic Pub. Co., 46 Colo. 145, 103 Pac. 303 (1909) ; San Domingo 
 Gold Co. V. Grand Pacific Co., 10 Cal. App. 415, 102 Pac. 548 (1009) ; Pierce 
 V. Pierce, 52 Wash. 679, loi Pac. 358 (1909) ; Manchester v. Duggan, 75 N. H. 
 33, 70 Atl. 1075 (1908) ; Whitcomb v. Whit comb, 205 Mass. 310, 91 N. E. 210 
 (1910) ; Johnson v. Michaiix, no Va. 595, 66 S. E. 823 (1910) ; McKinnon v. 
 Lewis, 60 Fla. 125, 53 So. 940 (1910) ; Scott v. Newell, 69 W. Va. 118, 70 S. 
 E. 1092 (1911); 1 aylor v. Jackson, 92 S. Car. 113, 75 S. E. 275 (1912) ; 
 Williamson v. Richardson, 205 Fed. 245 (1913) ; Interstate Ry. Co. v. Mis- 
 souri River & C. R., 251 Mo. 707, 158 S. W. 349 (1913) ; Chicago & E. R. Co. 
 V. Diniiis, 180 Ind. 596, 103 N. E. 652 (1913) ; Iowa S. S. Bank v. Henry 
 22 Wyo. 189, 136 Pac. 863 (1913) ; Haggctt v. Jones, in Maine 348, 89 Atl. 140 
 (1913) ; 1 eter v. Franklin Fire Ins. Co., 74 W. Va. 344, 82 S. E. 40 (1914) ; 
 Ringling v. Smith R. D. Co., 48 Mont. 467, '^8 Pac. 1098 (1914) ; Costa v. 
 Raza, 2T, Cal. App. 754, 139 Pac. 899 ( 1914) ; Hochler v. Short, 40 Okla. 681, 
 140 Pac. 146 (1914). 
 
 Error must be prejudicial. Harmless error does not justify a reversal. 
 Gammon v. Jones, 4 T. R. 509 (1792) ; O'Donnell v. Connecticut Fire Ins. Co., 
 73 Mich. I, 41 N. W. 95 (1888) ; Marshall v. Hancock, 80 Cal. 82, 22 Pac. 61 
 (1889) ; Whiteside V. Brawley, 152 Mass. 133, 24 N. E. 1088 (1890) ; Hannum 
 V. Hill, 52 W. Va. 166, 43 S. E. 223 (1902) ; Shidfr; v. .^eibel ^ cno Pa. 27. 57 Atl. 
 II20 (1904) ; Vandcrslice V. Donner. 26 Pa. Super. Ct. 31Q (1904) ; Ostegaard 
 V. Greek Catholic Congregation, 75 N. J. L. 736, 68 Atl. 86 (1907) ; Bowman v. 
 Saigling (Tex. Civ. App.), in S. W. 1082 (1908) ; Farmers' & Merchants' 
 Bank of Springfield V. Zook,^ 133 Mo. App. 603, 113 S. W. 678 (1908) ; 
 St. Louis L. M. R. Co. v. Williams, 92 Ark. 534, 123 S. W. 403 (1909) ; Rock 
 Creek S. Co. v. Boyd, in Md. 189, 73 Atl. 662 (1909); Peoples R. Co. v. 
 Baldwin, 7 Del. 383, 72 Atl. 979 (1909) ; Southern Home Ins. Co. v. Putnal, 
 57 Fla. 199, 49 So. 922 (1909) ; Rullman v. Ridlman, 81 Kans. 521, 106 Pac. 52 
 (1910); Southern Pac. R. Co. V. Da Costa, 190 Fed. 689 (1911) ; Gcer v. 
 Chapin, 163 111. App. 654 (1911) ; St. Louis L. M. R. Co. v. Marlin, 2,3 Okla. 
 510, 128 Pac. 108 (1912) ; Greer v. Downing, 176 111. App. 355 (1912) ; 
 Davidson Fruit Co. v. Produce Distributors Co., 74 V/ash. 551, 134 Pac. 510 
 (1913) ; Perry v. VanMatre, 176 Mo. App. 100, 161 S. W. 643 (1913) ; Rich- 
 ardson v. Bohney, 26 Idaho 35, 140 Pac. 1106 (1914) ; Carter v. Seaboard Air 
 Line R. Co., 165 N. Car. 244, 81 S. E. 321 (1914). In Neville v. Frary, 88 
 Conn. 50, 89 Atl. 882 (1914), the error complained of was the inclusion of 
 an item of $6 in a judgment for nearly $1,000. The court refused to interfere 
 on tl'.e ground that the item was too insignificant to claim their attention. 
 Accord: Perin v. Cathcart, 115 Iowa 553, 89 N. W. 12 (1902) (22 cents); 
 Missouri K. & T. R. Co. v. Kirkpatrick (Tex. Civ. App.), 165 S. W. 500 (1914).
 
 890 ArrF.AL AX» KKROR 
 
 BINDBEUTAL v. ST. RY. CO. 
 
 Court of Appeals of INIissouri, Kansas City, 1891 
 
 43 Mo. App. 463*^ 
 
 Smith, P. J. : riaintiff brought this action for alleged personal 
 injuries, claiming that, while driving on the defendant's track a 
 cable car collided with his wagon throwing him therefrom and in- 
 juring him. The petition was in two counts, the first claiming that 
 the act of defendant was wilful, while the second count was founded 
 upon negligence. All the evidence has not been preserved in full, 
 Intt the bill of exceptions shows what its tendency was. The verdict 
 of the jury was silent as to the first count, but found for the plain- 
 tiff on the second count and assessed his damages at $1,000. The 
 defendant has appealed from the judgment. 
 
 The questions presented by the record before us arise out of the 
 action of the trial court in the giving and refusing of instructions. A 
 preliminary matter however has been presented, which we will dis- 
 pose of before proceeding to examine the instructions. 
 
 It has been argued by the counsel for the defendant that, when 
 the record of a cause disclosed an erroneous ruling of the trial court 
 that then the presumption arises that such error was prejudicial to 
 the rights of the party against whom committed and that such pre- 
 sumption continues unless the record shov/s beyond a doubt that it 
 was not prejudicial; or, to state the contention in a different way, 
 that when the revisory court discovers in the record that an error 
 has been committed that this per se enjoins upon it the duty to re- 
 verse the judgment, unless it further appears that such error did not 
 operate prejudicially. The rule, thus stated in defendant's conten- 
 tion, seems quite reasonable and unless in some way it is affected by 
 the statute we should be inclined to approve it. The statute just re- 
 ferred .to. Revised Statutes, section 2303, provides that the appellate 
 courts of this state shall not reverse the judgment of any court un- 
 less it shall believe that error was committed by such court against 
 the appellant, or plaintiff in error, materially affecting the result. 
 Under this mandatory prohibition the appellate courts can not re- 
 verse a judgment in any case unless it is believed, not only that error 
 was committed, but that it matei-ially affected the merits of the ac- 
 tion ; unless these two essential conditions are believed to coexist 
 there can be no reversal. The existence of nonprejudicial error in 
 a case affords no ground for disturbing the judgment. There must 
 be inseparably connected with it the element of prejudice, else the 
 case fails within the terms of the statutory prohibition. Errors dis- 
 covered go for naught unless coupled with prejudice. Errors are, 
 therefore, of two kinds, reversible and irreversible, or prejudicial 
 
 "The arguments of counsel and part of the opinion of the court are 
 omitted. The court, finding that some of the instructions to the jury were 
 erroneous and that the plaintiff (the appellee) had not shown that in the 
 record which repelled the presumption of prejudice, reversed the judgment.
 
 BINDEEUTAL Z'. ST. RY. CO. 89I 
 
 and nonprejudicial. Reversible v/hen accompanied by Its twin sis- 
 ter, prejudice, and irreversible when foiind existing alone. Error 
 and prejudice go hand in hand, until the latter, which is tlie creature 
 of presumption, is met and neutralized by something in the record. 
 It follows, therefore, that the interference of the appellate court 
 with the judgment of the lower court can be successfully invoked by 
 showing an error in the record ; for when the error is shown the law 
 supplies and attaches the consequence of prejudice. The judgment 
 in such case would be necessarily reversed, unless the defendant 
 shows from the record that which clearly rebuts the presum.ption of 
 prejudice. 
 
 We can not discover that the statute is repugnant to, or en- 
 croaches on, this rule of presumption; on the contrary, we are in- 
 clined to think that it supplements the rule with a practical defini- 
 tion of what shall constitute prejudicial error. As we understand 
 it, when error intervenes, the prejudice presumed is of the kind men- 
 tioned in the statute, that is, it must affect materially the merits. In 
 all the cases cited by the plaintiff, it will be observed that the judg- 
 ment was not reversed on account of the error complained of, but 
 because of something contained in the record by which it was made 
 to appear that the complainant was not substantially injured or 
 harmed. They decide nothing at variance with what is here held. 
 The adjudged cases abound in the use of such terms as "reversible 
 error," "harmful error" and "prejudicial error," and the like, but we 
 think that the meaning of them all is that, when error intervenes, it 
 is presumed to be reversible, harmful and prejudicial, and authorizes 
 a reversal, unless the party claiming the benefit of the judgment can 
 show that in the record which rebuts the presumption. 
 
 The St. Louis court of appeals has thrice decided that error is 
 presumed to be prejudicial. To justify an appellate court to affirm 
 a judgment, when error has intervened in the trial, the burden is 
 upon the party claiming the benefit of the judgment to satisfy the 
 appellate court that the error is not prejudicial. Suttie v. Aloe, 39 
 Mo. App. 38 ; Clark v. Fairley, 30 Mo. App. 335 ; Walton v. Rail- 
 road, 40 ]\Io. App. 5z^. And we can see no valid reason why the 
 rule just stated Is not correct, nor why it should not be followed.®^ 
 
 •'In Deery v. Cray, 72 U. S. 795, 18 L. ed. 653 (1866), it is said by 
 Miller, J.: "We concede that it is a sound principle that no judgment should 
 be reversed in a court of error when the error complained of works no in- 
 jury to the party against whom the ruling was made. But whenever the appli- 
 cation of this rule is sought, it must appear so clear as to be beyond doubt 
 that the error did not and could not have prejudiced the party's rights." In 
 accord, many cases hold that prejudice will be presumed when error is shown 
 or admitted. Smith v. Shoemaker, 84 U. S. 630, 21 L. ed. 717 (1873) ; Way- 
 land V. Ware, 109 Mass. 248 (1872) ; Moores v. Citizens' Nat. Bank, 104 U. S. 
 625, 26 L. ed. 870 (1881) ; Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664 
 (1883) ; Gilmer et al. v. Highley, no U. S. 47, 28 L. ed. 62 (1884) ; Vickshurg 
 & M. R. Co. V. O'Brien, 119 U. S. 99, 30 L. ed. 299 (1886) ; Cleary v. City R. 
 Co., 7(i Cal. 240, 18 Pac. 269 (1888) ; Honk v. Allen, 126 Ind. 568, 25 N. E. 897, 
 II L. R. A. 706 (1890) ; DiiBois v. Perkins, 21 Ore. 189, 27 Pac. 1044 (1891) ; 
 Simmons v. Spratt, 26 Fla. 449, 8 So. 123, 9 L. R. A. 343 (1890) ; Mcxia v.
 
 Sqj appkal and error 
 
 OIkrr, 14S U. S. 664. 37 T- ^^- f>0- (i^oj) ; Sfllomon v. City Compress; Co., 
 bo Miss. 310, 10 So. 44(1. 12 So. 330 (i8qi) ; Pccic v. Ilcnrich. 167 U. S. 624, 
 42 L. ed. 302 (1807) ; Bell v. Samuels, 60 N. J. L. 370. 37 Atl. 613 (1807) ; 
 Latigstofi v. Southern R. Co.. 147 Mo. 4.=^7, -^8 S. W. 835 (1808); Parrin v. 
 .UoH/awa Ci-H/. i?. Co., 22 Mont. 290, 56 Tac. 3x5 (1890); Gulf R. Co. v. 
 Johtison, 91 Tex. 560, 44 S. W. 1067 (1898) ; Smuggler Union Mining Co. v. 
 Proderiek. 2^ Colo. 16, =^3 Pac. 169, 71 Am. St. 106 (1898) ; Longhran v. Des 
 Moines. io7"lowa 639, 78 N. W. 675 (1809) ; Collett v. Northern Pacific R. 
 Co.. 23 Wash. 600. 63 Pac. 225 (1000) ; Callazi'ay & Truitt v. Gay, 143 Ala. 
 524, 39 So. 277 (1004) ; Inman Bros. v. Dudley & Daniels Lumber Co., 146 
 Fed. 449 (1906') ; Armour & Co. v. Russell, 144 Fed. 614 (1906) ; National 
 Biscuit Co. V. Nolan, 138 Fed. 6 (1905) ; Wheeling Mold Co. v. Steel Co., 62 
 W Va 289 57 S. F. 826 (1907) ; United States v. Ute Coal Co., 158 Fed. 20 
 (1007^ ; Mever v. Chicago M. R. Co., 22 S. Dak. 377, II7 N. W. 1037 (1008) ; 
 Mutual Reserve Life Ins. Co. v. Heidel, 161 Fed. 535 (1908); Archhold v. 
 .loline, 114 N. Y. S. 169 (1909); Norfolk Tr. Co. v. Miller, 174 Fed. 607 
 (1909); Crazvford v. United States, 212 U. S. 183, 53 L- ed. 465 (1909); 
 Olopp V. Rapid Tr. Co.. 69 Misc. 595. 126 N. Y. S. 184 (loio) ; Morgan v. 
 Bankers Trust Co., 63 Wash. 476, 115 Pac. 1047 (i9ii) ; McBride V. Huckins, 
 76 N. H. 206, 81 Atl. 528 (1911) ; Butchers Slaughtering Assn. v. Bo.<;ton, 214 
 Mass. 254, loi N E. 426 (1913) ; Comvay v. Coursey, no Ark. 557, 161 S. W. 
 1030 (1913) ; Linler v. Wiles, 70 Ore. 350, 141 Pac. 871 (1914)- The principle 
 is sometimes stated in this manner: "Where it is shown on appeal that the 
 trial conrt erred in some rnlinp: or decision, the error will be presumed to be 
 harmful, and the burden is not upon the party aggrieved to show that it is 
 harmful, iDut on the opposite partv to show bv the record that the error was 
 harmless." Vandalia Coal Co. v. Yemm, 175 Ind. 524, 92 N. E. 49, 94 N. E. 
 881 (1910) ; Greene v. Jl'hite, 37 N. Y. 405 (1867) ; Lack v. Weber, 61 Misc. 
 ex. Y.) 91 (1908) ; Crane Co. v. Hogan, 228 111. 338, 81 N. E. 1032 (1907) ; 
 Mcleny v. Library Bureau, 148 111. App. 437 (1909) I Casey v. Prudential Ins. 
 Co. of America, 162 111. App. 581 (1911) ; Davis v. Cox, 178 Ind. 486, 99 N. E. 
 803 (1912) ; Neely v. Louisville Tr. Co., 53 Ind. App. 659, 102 N. E. 455 
 (1913). 
 
 Where the case is tried by the court without a jury it will not be pre- 
 sumed, on appeal, that improper evidence objected to at the time misled the 
 court. It will be assumed that the immaterial or improper evidence was dis- 
 regarded in arriving at a decision. Merchants' Despatch Co. V. Joesting. 
 89 111. 152 (1878) ; Mailers v. Crane Co., 92 111. App. 514 ( ^Qoo) ;_Ll£ZiLeJlyn 
 v_£cni§el. 21 ^ Pa. 2^,. 6a At l. 388 (1906) ; Boening V. A^. American Union, 
 i55~TrrApp. 528 (1910) ; Sharp v. Trustee of Schools, 261 111. 44. 103 N. E. 
 562 (1913) ; Diggs v. Heiuon, 181 Mo. App. 34, 163 S. W. 565 (1914) ; Fairbank 
 V. Fairbank, 92 Kans. 45, 139 Pac. ion (1914)- See Colonial Securities 
 Trust Co. V. Ma.'!sey, L. R. (1896) I Q. B. 38. The principle has been applied 
 to auditors, Br eneman's Estate. 6 5 Pa. St. 298 (1870), and to a master m 
 equity, Long V. Athol, 196 Alass. 497, 82 N. E. 665, 17 L. R. A. (N. S.) 96 
 C1907). But contra where it appears that the decision was influenced by the 
 objectionable evidence. Weihert v. Hanan, 202 N. Y. 328, 95 N. E. 688 (1911) ; 
 Harding v. Conlon, 159 App. Div. 441. I44 N- Y. S. 663 (1913) ; Swan v. 
 Price (Tex. Civ. App.), 162 S. W. 994 (iQM) ; Elston v. McGlanflin, 79 Wash. 
 355, 140 Pac. 396 (1914).
 
 PRESS PUB. CO. V. MONTEITH 893 
 
 PRESS PUB. Co. V. I^IONTEITH 
 
 United States Circuit Court of Appeals, Second Circuit, 1910 
 
 180 Fed. 356 
 
 In error to the Circuit Court of the United States for the South- 
 ern District of New York. 
 
 Action by Laura W. Monteith against the Press Publishing Com- 
 pany for hbel. Judgment for plaintiff for $15,000, and defendant 
 brings error.^ 
 
 CoxE, J, : The defendant realizing, apparently, that even upon 
 its own presentation no very serious error has been committed, in- 
 vokes the archaic rule that if error be discovered, no matter how 
 trivial, prejudice must be presumed. The more rational and enlight- 
 ened view" is that in order to justify a reversal the court must be 
 able to conclude that the error is so substantial as to affect injuri- 
 ously the appellant's rights. 
 
 Prejudice must be perceived, not presumed or imagined. The 
 writer, speaking only for himself, is in hearty accord with the mod- 
 ern tendency. 
 
 The object of all litigation should be to arrive at a just result 
 by the most direct, speedy and inexpensive proceedings. If such a 
 result can be reached by absolutely inerrant methods so much the 
 better, but while the administration of justice is in the hands of 
 merely finite beings, such perfection can hardly be expected. I ven- 
 ture to think that no long continued, hotly contested trial can be con- 
 ducted to a conclusion without mistakes being committed. Few 
 minds are so constituted that they can grasp at the outset all the 
 ramifications of a complicated controversy and, before the judge can 
 get the perspective of the trial, some mistakes may occur, but these 
 should be disregarded if it can be seen that the case was correctly 
 decided and that, even if they had not been made, the same result 
 would have been reached. Justice can be attained without infaUi- 
 bility. 
 
 One of the English rules provides: 
 
 "A new trial shall not be granted on the ground of the misdi- 
 rection of the jury or of the improper admission or rejection of evi- 
 dence, unless in the opinion of the court to which the application is 
 made, some substantial wrong or miscarriage of justice has been 
 thereby occasioned on the trial."^ 
 
 *A part only of the opinion is printed. 
 
 ^Rules of the Supreme Court, Order 39, rule 6. In Floyd v. Gibson, 100 
 L. T. (N. S.) 761 (1909), the court misdirected the jury by leaving it open to 
 them to treat the plaintiff's injury as permanent when there was no evidence 
 of any permanent injury, but the plaintiff had admittedly been seriously 
 injured and the damages were moderate. Held, The damages being reason- 
 able in respect to the injuries actually suffered, no "substantial wrong or mis- 
 carriage" was occasioned by the misdirection within the rule, and a new 
 trial should be refused. Compare Bray v. Ford, L. R. (1896) A. C. 44, 65 
 Q. B. 213, 7z L- T. 6c9, and see Tait v. Beggs, 2 R. I. 525 (1905) ; O'Reilly v. 
 McCall (iQio), 2 1. R. 42.
 
 894 APPEAL AND ERROR 
 
 Were such a rule in force here, even assuming tliat defendant's 
 contentions are correct, tlie court would be unable to say that sub- 
 stantial wrong has been done the defendant. In several instances 
 the alleged error was subsequently corrected and the excluded evi- 
 dence supplied. 
 
 The granting of a new trial is often a denial of justice, wit- 
 nesses die or remove beyond the jurisdiction of the court and the 
 resources of the litigants become exhausted. 
 
 Believing as we do that the libel here was without justification 
 or excuse and that the verdict was not excessive, we should hesitate 
 long before requiring the plaintiff to begin anew the weary pilgrim- 
 age through the courts. 
 
 The judgment is affirmed with costs.^ 
 
 SYPHERD V. MYERS 
 
 Court of Errors and Appeals of New Jersey, 191 i 
 
 80 A^. /. L. 321 
 
 By this writ of error Herman M. Sypherd, trustee in bankruptcy 
 of Channell Brothers, seeks to reverse a judgment of the Supreme 
 Court entered upon a verdict directed in his favor for six cents 
 damages against Charles R. Myers, whom plaintiff in error had 
 sued for the breach of an option given to his bankrupts. 
 
 ]\Iyers had leased the Piedmont Hotel to Channell Brothers for 
 one year. The lease gave to the lessees an option to purchase the 
 property for $57,000, if the lessor should obtain title during the 
 term. The term expired without the fulfillment of this condition and 
 was renewed for one year from June i, 1900, at a higher rental, with 
 a purchase price of $62,000 under a similar option. During this term 
 
 'In accord with the principal case it is frequently said that unless it can 
 be seen that prejudice has resulted from error of the trial court, prejudice 
 will not be presumed. Alleghe ny v. Nelson. 2^ Pa. St. 332 (1855) ; Hooker v. 
 Johnson, 10 Fla. 198 (fB5o7; Ftilmer v. Fulmer, 22 Iowa 230 (1867) ; Warner 
 V. Jones, 140 Mass. 216, 5 N. E. 645 (1885); Worcester Coal Co. v. Utley, 
 167 !\Iass. 558, 46 N. E. 114 (1897) ; Toole v. Bearce, 91 Maine 200, 39 Atl. 
 558 (1898) ; Wood v. Finson, 91 Maine 280, 39 Atl. 1007 (1898), where it is 
 said: "It must be shown affirmatively that the excepting party has been 
 ajTcrrieved"; Koplan v. Gas Light Co., 177 Mass. 15, 58 N. E. 183 (1900); 
 Wills V. Hardcastle, IQ Pa. Super. C l 525 (1902); Covimonwealth y^Phila. 
 H. & P. J^ Co., 23^^. Supe r. Ct. 235 (1903) ; Cox v. iyilson.~2'^ Pa . Super. 
 C17^63S^ (1904) ; Neal v. Kcttlall, 100 Ivfaine 574,' 62 Atl. 706 (1905) ; National 
 Valley Bank v. IIou.<!ton, 66 W. Va. 336, 66 S. E. 465 (1909) ; Berger v. Abel 
 & Bach, 141 Wis. 321, 124 N. W. 410 (1910) ; Roach v. Skelton, 86 Kans. 63, 
 119 Pac. 315 (1911) ; Smith v. lola Portland Cement Co., 86 Kans. 287, 120 
 Pac. 349 (1912); Totten v. Barlow, 165 Cal. 378, 132 Pac. 749 (1913); 
 Leonard v. Hartzlcr, 90 Kans. 386, 133 Pac. 570 (1913) j Hoogendorn v. 
 Daniel, 202 Fed. 431 (1913) ; Wclls-Fargo & Co. v. Benjamin (Tex. Civ. 
 App.), 165 S. W. 120 (1914). See also Garland v. State of Washington, 
 232 U. S. 642, 58 L. ed. 772 (1914), overruling Grain v. United States, 162 
 U. S. 625, 40 L. ed. 1097 (1896).
 
 SYPHERD V. MYERS 895 
 
 the lessees defaulted wholly in the payment of their rent and about 
 August 25, 1900, notified Myers that they could not pay him any 
 money at all and would have to get out. They went out of possession 
 and M3-ers went in. On September 8th Myers obtained title and on 
 September 12th tendered it to Channell Brothers, who, without dis- 
 closing the bankruptcy proceeding, informed Myers that they w^ere 
 not in a condition to comply with tlieir agreement ; whereupon Myers, 
 on September 15th, sold the property to one Bechtel. On October 
 15, 1900, the plaintiff in error was appointed the trustee in bank- 
 ruptcy of Channell Brothers, and on January 3, 1902, he began this 
 suit for damages for the loss of the bargain resulting from Myers' 
 breach of the option contained in the lease. To this action Myers 
 pleaded specially that before he acquired the title in question the 
 lessees had abandoned their option to purchase, and had surrendered 
 their term to tlie defendant, who accepted such surrender. 
 
 On the trial the defendant sustained his pleas and at the close 
 of the testimony the court, of its own motion, directed a verdict for 
 six cents damages, to which the defendant excepted upon the ground 
 that he was entitled to a verdict. The plaintiff also excepted and 
 took this writ of error.* 
 
 Garrison, J. : If the trial judge was right In directing a verdict 
 for the plaintiff in error he was VvTong in limiting the recovery to 
 nominal damages, for, if tlie defendant was liable to the plaintiff at 
 all, there was testimony that should have gone to the jury in support 
 of a more substantial measure of damage. 
 
 This error does not, however, entitle the plaintiff to have the 
 judgment for nominal damages reversed if it conclusively appears 
 that he v/as not entitled to a judgment for any sum.^ 
 
 We think that this does conclusively appear in tAvo different as- 
 pects of the case. 
 
 First, because Channell Brothers, prior to their being adjudged 
 bankrupts, abandoned their option from inability to comply with its 
 terms and so notified Myers, who, in good faith, acted upon it. The 
 facts in respect to this are uncontroverted. 
 
 'Part o£ the opinion of the court is omitted. 
 
 ''Judgment will not be reversed in favor of an appellant who is not 
 entitled to succeed in any event. Co-dcen v. Eartherly Hardn:are Co., 95 Ala. 
 324, II So. 195 (1891) ; Ice V. Ball, 102 Ind. 42, i N. E. 66 (1884) ; McCreery 
 v. Wells, 94 Cal. 485, 29 Pac. 877 (1892); Honi v. Schwinn & Co., 150 111. 
 App. 559 (1909) ; First Nat. Bank of Antigo v. Larsen, 146 Wis. 653, 132 
 N. W. 610 (1911) : Ritter v. Pittsburg R. Co., 230 Pa. 249. ffl Atl. 549 (1911) ; 
 Webber v. Old Colony S. R. Co., 210 Mass. 432, 97 N. E. 74 (1912) ; Peterson 
 v. Purinfon, 90 Nebr. 837, 134 N. W. 942 (1912) ; Atzvood v. Atzvood, 86 Conn. 
 579, 86 Atl. 29 (1913) ; Wilson v. Draper, 9 Ala. App. 585, 63 So. 779 (1913). 
 So, the fact that plamtiff recovers on a mistaken view of the character of the 
 agreement upon which the suit is based is not ground for reversal, where he is 
 entitled to recover for other reasons. American Structural Steel Co. v. Rush, 
 107 N. Y. S. 3 (1907). 
 
 In Butterhof v. Bnttcrhof, 84 N. J. L. 285, 86 Atl. 394 (1912), it is said, 
 per Garrison, J. : "To review seriatim the inconsequential errors that the trial 
 judge may have made in what he said to the jury, while at the same time 
 ignoring the fundamental error he made in not directing a verdict for the 
 defendant, would be at once sheer waste of time and a flagrant unobservance 
 of the legislative precept."
 
 S96 APPEAL AND F.RROR 
 
 The second point is that the title to the property was not ob- 
 tained by Myers dining the eiMiiinnance of the lease, wliioh was tlie 
 condition on which the right of purchase by Channel! Brothers de- 
 I>ended. The giving up of possession by Channell Brothers and its 
 acceptance by Myers, which was specially pleaded by the latter, was 
 conclusively established at the trial by testimony of acts that by op- 
 eration of law constituted a surrender. 
 
 The circumstance that these views should have led at the trial 
 to a direction of a verdict for the defendant rather than for the 
 plaintilt does not militate against their consideration now upon the 
 question, not of what judgment the defendant should have had, but 
 of what injury is done to the plaintiff by the judgment that he is 
 seeking to reverse. The defendant can not have the judgment that 
 he should have had ; that is his loss. He was foreclosed from mov- 
 ing for it by the action of the trial court ; that may have been his mis- 
 fortune, but he has taken no writ of error. The plaintiff, who has 
 taken a writ of error, shows thereby a judgment which, as far as it 
 is in his favor, was erroneous, and, as far as he complains of it, does 
 him no injury. His writ of error avers that error has intervened to 
 his damage ; this he has not shown and hence has not shown himself 
 entitled to have the erroneous judgment reversed. 
 
 Plaintiff in error can not complain because he is required to 
 make out in this court the case upon which he has invoked its rem- 
 edial jurisdiction and he is not, in any legal sense, aggrieved if tliis 
 court decides adversely to him the questions that his case presents, 
 providing they be purely legal questions fairly raised at the trial 
 and upon which he has had full opportunity to be heard. The ques- 
 tion whether or not a given act constitutes a surrender in law is a 
 purely legal one and where, as in the present case, the act on which 
 the law operates is conclusively established beyond any controversy 
 or jury question, the legal question thus presented may be decided 
 by the appellate court, provided it was one of the issues raised at the 
 trial, and one of the matters argued or presented for argument in 
 the appellate court. The present case complies with each of these 
 conditions. The abandonment of the option and the surrender of 
 the lease were specially pleaded by the defendant, who fully sup- 
 ported them by proof at the trial where the parties had an equal op- 
 portunity to litigate them. Both matters have been argued by coun- 
 sel for defendant in his brief in this court and if the plaintiff's coun- 
 sel has not done so it was because he did not choose to avail himself 
 of the right of reply afforded by our rules ; on tlie oral argument 
 reference was pointedly made to these questions and the attention 
 of counsel directed to them. The questions thus presented and de- 
 cided negative the averment of the writ of error that the plaintiff is 
 damnified by the judgment he seeks to reverse; upon this writ of 
 error, therefore, the judgment of the vSupreme Court must be af- 
 firmed.° 
 
 'In Gillespie v. Ferguson, 78 N. J. L. 470, 74 Atl. 460 (1900), the plaintiff, 
 a discharged employe was injured before leavinpf tlie defendant's premises. 
 A nonsuit was entered below on the pround that no duty was owinj? to the 
 plaintiff. On error judgment was affirmed on the ground that plaintiff on his
 
 I Kent's commentaries 476 897 
 
 I Kent's Commentaries 476 
 
 A solemn decision upon a point of law, arising in any given case, 
 becomes an authority in a like case, because it is the highest evi- 
 dence which we can have of the law applicable to the subject, and 
 the judges are bound to follow that decision so long as it stands un- 
 reversed, unless it can be shown that the law was misunderstood or 
 misapplied in that particular case. If a decision has been made upon 
 solemn argument and mature deliberation, the presumption is in 
 favor of its correctness; and the community have a right to regard 
 it as a just declaration or exposition of the law, and to regulate their 
 actions and contracts by it. It would therefore be extremely incon- 
 venient to the public, if precedents were not duly regarded and im- 
 plicitly followed. It is by the notoriety and stability of such rules 
 
 own showing had been guilty of contributory negligence. Trenchard, J., said: 
 "A judgment entered upon a nonsuit directed by the trial judge and brought 
 up for review will be affirmed if correct on any legal ground, although the 
 reason advanced by the court below is erroneous. 2 Enc. P. & Pr. 372; 3 
 Cyc. 221. The rule announced to the contrary in IVolfarth V. Sternberg, 
 70 N. J. L. 198, 56 Atl. 173, does not meet the approval of this court." 
 
 So, generally, "a right decision will not be reversed merely because a 
 wrong reason has been assigned therefor." Taylor v. Thomas, 129 N. Y. App. 
 Div. 53 (1908); Benson v. Bazvdcn, 149 Mich. 584, 113 N. W. 20 (1907); 
 Newell V. Wood, i Munf. (Va.) 555 (1810) ; Easlev v. Craddock, 4 Rand. 
 (Va.) 423 (1826) ; Prescott v. Hobbs, 30 Maine 345 (1849) ; Silsby v. Foote, 
 14 How. (U. S.) 218, 14 L. ed. 394 (1852) ; EUicott v. Turner Peterson, 4 Md. 
 476 (1853) ; Stiles v. Lightfoot, 26 Ala. 443 (1855) ; Thomas v. Mann, 28 Pa. 
 St. 520 (1857); Ireland v. Berryman, 3 Bush (Ky.) 356 (1867); Seyburn 
 V. Deyris, 25 La. Ann. 483 (1873) ; Jamison v. Perry, 38 Iowa 14 (1873); 
 Wieland v. Shillock, 23 Minn. 227 (1876) ; Marvin v. Universal Life Ins. Co., 
 85 N. Y. 278, 39 Am. Rep. 657 (1881) ; Susguchanna MittF. Ins. Co_, v, 
 Cackenbach, im Pa. St. dQ2 . 9 Atl. 90 (1SS6) ; Christy v. Stafford, 123 III. 463, 
 14 N. E. 680 (1888); Atzvood V. Partree, 56 Conn. 80, 14 Atl. 85 (1888); 
 Whitehead v. Patterson, 88 Ga. 748, 16 S. E. 66 (1891) ; Howes v. District, 
 2 App. Cas. D. C. 188 (1894) ; York Mfg. Co. v. Bessemer Ice Mfg. &c. Co., 
 Ill Ala. 332, 20 So. 13 (1895) ; Estate of Grossman, 175 111. 425, 51 N. E. 750, 
 67 Am. St. 219 (1898) ; Blanchard v. Wilbur, 153 Ind. 387, 55 N. E. 99 (1899) ; 
 Brew V. Hastings, ^rrfS Pa 155, 55 Atl. 922 (1903) ; McNicholas V. Tinsler, 127 
 111. App. 381 (1906) ; Qorgan v. George F. Lee Coal Co., 218 Pa. 386, 67 Atl. 
 655 (1907) ; Cleqq v. Senhnnrd .'sUTl Ca'^tln dTo.. T.4V a7SmffeT, Ct. 63 0907) ; 
 Fordyce L. Co. v. Wallace, 85 Ark. I, 107 S. W. 160 (1907) ; Vasserv. Lib~erty, 
 50 Tex. Civ. App. iii, no S. W. 119 (1908) ; Woodward's Appeal, 81 Conn. 
 152, 70 Atl. 453 (1908) ; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740 (1909) ; 
 Miirrell v. Peterson, 57 Fla. 480, 49 So. 31 (1909) ;Vogel v. Minn. Canal Co., 47 
 Colo. 534, 107 Pac. 1108 (1910) ; Joslyn v. Cadillac Automobile Co., 177 Fed. 863 
 (1910) ; Tucker v. Gillespy, 169 Ala. 491, 53 So. 909 (1910) ; Londonderry v. 
 Fryor, 84 Vt. 294, 79 Atl. 46 (1911) ; McKee v. Title Ins. Co., 159 Cal. 206, 
 113 Pac. 140 (1911) ; Lopes v. Conolly, 210 Mass. 487, 97 N. E. 80, 38 
 L. R. A. (N. S.) 986n (1912) ; Fountain v. Standard Fire Ins. Co., 155 Iowa 
 96, 134 N. W. 1090 (1912) ; McDermott v. Burke, 256 111. 401, 100 N. E. 168 
 (1912) ; Meiscl V. Merchants Nat. Bank, 85 N. J. L. 253, 88 Atl. 1067 (1913) ; 
 Upham V. Plankinton, 152 Wis. 275, 140 N. W. 5 (1913) ; Hendricks v. Jack- 
 son, 139 Ga. 604, 77 S. E. 816 (1913) ; Adams v. Boston E. R. Co., 214 Mass. 
 I, 100 N. E. 1012 (1913) ; Thomas v. Brown, 168 Mo. App. 667, 154 S. W. 423 
 (1913); Cooper V. Romney, 49 Mont. 119, 141 Pac. 289 (1914) ; Thompson 
 v. Southern Lumber Co., 113 Ark. 380, 168 S. W. 106S (1914) ; Fourth Nat. 
 Bank of Macon, Ga., v. Willingham, 213 Fed. 219 (1914) ; Young v. Duncan, 
 218 Mass. 346, 106 N. E. I (1914). 
 
 57 — Civ. Prog.
 
 8;;S Arri:AL and error 
 
 tliat professional men can give safe advice to those ^vho consult 
 tliem ; and people in general can venture with confidence to buy and 
 trust, and to deal with each other. If judicial decisions were to be 
 lightly disregarded, we should disturb and unsettle the great land-- 
 marks of property. When a rule has been once deliberately adopted 
 and declared, it ought not to be disturbed, imless by a court of ap- 
 peal or review, and never by the same court, except for very cogent 
 reasons, and upon a clear manifestation of error; and if the practice 
 were otherwise, it would be leaving us in a state of perplexing uncer- 
 tainty as to the law. The language of Sir William Jones is exceed- 
 ingly forcible on this point. "No man," says he, "who is not a law- 
 yer, M'ould ever know how to act; and no man who is a lawyer 
 would, in many instances, know what to advise, unless courts v/ere 
 bound by authority as firmly as the pagan deities were supposed 
 to be bound by the decrees of fate."'' 
 
 Throughout the whole period of the year books, from the reign 
 of Edward III to that of Henry VII, the judges were incessantly 
 urging the sacredness of precedents, and that a counsellor was not 
 to be heard wdio spoke against them, and that they ought to judge 
 as the ancient sages taught. If we judge against former precedents, 
 said Chief Justice Prisot, it will be a bad example to the barristers 
 and students at law, and they will not give any credit to the books, 
 or have any faith in them.^ So tlie Court of King's Bench observed 
 in the time of James I, that the point which had been often adjudged 
 ought to rest in peace.^ The inviolability of precedents was thus in- 
 culcated at a period which we have been accustomed to regard as the 
 infancy of our law, with as much zeal and decision as at any subse- 
 quent period. 
 
 But I wish not to be understood to press too strongly the doc- 
 trine of stare decisis, when I recollect that there are more than one 
 thousand cases to be pointed out in the English and American books 
 of reports, which have been overruled, doubted, or limited in their 
 application. It is probable that the records of many of the courts in 
 this country are replete with hasty and crude decisions; and such 
 cases ought to be examined without fear, and revised v/ithout re- 
 luctance, rather than to have the character of our law impaired, and 
 the beauty and harmony of the system destroyed by the perpetuity 
 
 ^Tories on Bailments, 46. 
 
 *V. B. 33, Hen. Vl 41. See further Pollock's First Book of Jurispru- 
 dence, ch. 6. 
 
 ^Spiccr V. Spiccr, Cro. Jac. 527 (1619). The doctrine of stare decisis, it is 
 said, is most strictly applied when decisions have settled rules of property 
 upon v.hich rights are predicated and under which titles have vested. 26 A. 
 & E. Encyc. of Law (2d ed.) 180; Black on Judicial Precedents, §§ 76-80; 
 Goodtitle v. Otway, 7 T. R. 399 (1797) at p. 419; Anderson ex dcm. Eden v. 
 Jackson, 16 Johns. (N. Y.) 382 (1819) ; Goodcll v. Jackson ex deni. Smith, 
 20 Johns. (N. Y.) 693, II Am. Dec. 351 (1823) ; Doe ex dem. Clarke v. 
 Ludlam, 7 Bingh. 275 (1831) ; White v. Denman, I Ohio St. no (1853); 
 Reichert v. McClure, 23 111 516 (i860) ; Kurts^^i^OimitrU, 2t8 Pa._5g4t.67 
 Atl. 843 (1907); Cape Girardeau B. R. Co. v. Southern Illinois & Missouri 
 Bridge Co., 215 Mo. 286, 114 S. W. 1084 (1908) ; Jefferson v. Bangs, 197 N. Y. 
 35, 90 N. E. 109, 134 Am. St. S56 (1909) ; Miles v. National Bank, 140 Ky. 376, 
 131 S. Vv'. 26 (1910).
 
 I Kent's commentaries 476 899 
 
 of errors. Even a series of decisions are not always conclusive evi- 
 dence of what is law ; and the revision of a decision very often re- 
 solves itself into a mere question of expediency, depending upon 
 the consideration of the importance of certainty in the rule, and the 
 extent of property to be affected by a change of it. Lord Mansfield 
 frequently observed, that the certainty of a rule was often of much 
 more importance in mercantile cases than the reason of it, and that a 
 settled rule ought to be observed for the sake of property ; and yet, 
 perhaps, no English judge ever made greater innovations and im- 
 provements in the law, or felt himself less embarrassed with tlie dis- 
 position of the elder cases when they came in his way, to impede the 
 operation of his enlightened and cultivated judgment. The law of 
 England, he observed, would be an absurd science, were it founded 
 upon precedents only. Precedents were to illustrate principles and 
 to give them a fixed certainty. His successor, Lord Kenyon, acted 
 like a Roman dictator, appointed to recall and reinvigorate the 
 ancient discipline. Lie controlled or overruled several very impor- 
 tant decisions of Lord Mansfield, as dangerous innovations, and on 
 the grotind that they had departed from the precedents of former 
 times, disturbed the landmarks of property, and had unauthorizedly 
 superadded equity powers to a court of law. "It is my wish and my 
 comfort," said the venerable judge, "to stand super antiquas vias. I 
 can not legislate, but by my industry I can discover what our prede- 
 cessors have done, and I will tread in their footsteps." The English 
 courts seem now to consider it to be their duty to adhere to the 
 authority of adjudged cases, when they have been so clearly, and so 
 often, or so long established, as to create a practical rule of prop- 
 erty, notwithstanding they may feel the hardship, or not perceive the 
 reasonableness, of the rule.^" There is great weight in the maxim of 
 Lord Bacon, that optima est lex, quae minimum relinquit, arbitrio 
 judicis; optimus judex, qui minimum sibi.^^ The great difficulty as 
 to cases consists in making an accurate application of the general 
 principle contained in them to new cases, presenting a change of cir- 
 cumstances. If the analogy be imperfect, the application may be 
 erroneous. The expressions of every judge must also be taken with 
 reference to the case on which he decided ; we must look to the prin- 
 ciple of the decision, and not to the manner in which the case is 
 argued upon the bench, otherwise the law will be thrown into 
 
 '"See Hallett's Estate (1879), 13 Ch. Div. 696; Pugh v. Golden Val. R. Co., 
 IS Ch. Div. 330 (1880) ; In re Lashmar (1891), i Ch. 258 at pp. 267, 268; 
 Fledge v. Carr, 64 L. J. 51 (1895) ; Vale v. Rice, 104 L. T. 658 (1911). In 
 Osborne v. Rowlett (1879), 13 Ch. Div. 785, it is said, however, by Jessel, 
 M. R. : "Now I have often said, and I repeat it, that the only thing in a 
 judge's decision binding as an authority upon a subsequent judge is the prin- 
 ciple upon which the case was decided : but it is not sufficient that the case 
 .should have been decided on a principle if that principle is not itself a right 
 principle, or one not applicable to the case; and it is for a subsequent judge 
 to say whether or not it is a right principle, and, if not, he may himself lay 
 down the true principle." See also In re Reiser, 79 Misc. 668, 140 N. Y. S. 
 844 (1913) ; Montrose v. Baggott, 161 App. Div. 494, 146 N. Y. S. 649 (1914). 
 
 "Bacon's Works II 448, Aphor. 46.
 
 cxK) Arri.AL Axn i:kror 
 
 extreme confusion. The exercise of sound judi^nicnt is as necessary 
 in the use, as dihgence and learning arc requisite in the pursuit, of 
 adjudged cases. ^^ 
 
 HERTZ r. WOODMAN 
 
 Supreme Court of the United States, 1910 
 
 218 U. S. 20s 
 
 This case comes to this court upon a certificate under par. 6 of 
 tlie Act of 1891, creating circuit courts of appeals. The action in the 
 circuit court was one by the executor and legatees under the will of 
 James F. Woodman, to recover an amount of money which had been 
 paid, under protest, as a tax upon legacies tmder the will of the tes- 
 tator, by virtue of sections 29 and 30 of the Act of June 13, 1898, 
 and amendments, known as the War Revenue Act. 
 
 The facts certified are : That Woodman died at Chicago, March 
 15, 1902, leaving a will, which w-as there duly probated on May 3, 
 1902, and that the Illinois Trust and Savings Bank qualified as 
 executor. The clear value of legacies payable under the will to the 
 defendants in error w^as $166,250. On January 17, 1905, and before 
 the payment of these legacies, the collector claimed and collected, 
 as the amount of duty and tax due and payable upon said legacies, 
 under the act of Congress before mentioned, the sum of $2,812.49. 
 After stating the facts, substantially as above, the certificate con- 
 cludes as follows : 
 
 "Upon the foregoing facts the question of law concerning which 
 this court desires the instruction and advice of the Supreme Court 
 is this: Does the fact that the testator dies within one year imme- 
 diately prior to the taking effect of tlie repealing Act of April 12, 
 1902 (U. S. Comp. Stat. Supp. 1903, p. 279), relieve from taxation 
 legacies otherwise taxable under sections 29 and 30 of the Act of 
 June 13, 1898, as amended by the Act of Llarch 2, 1901 ?" ^^ 
 
 "See further Bates v. Relyea, 23 Wend. (N. Y.) 336 (1840) ; Callender v. 
 Ke^stoneJUutjialJ^I nj^_Co. _,_22^Pdi. St. 471 (1854) ; Martin v. Martin, 25 Ala. 
 201 (1854) ; Hart v. Burnett, 15 Cal. 530 (i860); Ocean Beach Assn. v. 
 Brinley, 34 N. J. Eq. 438 (1881) ; Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 
 478 (1884) ; Paul V. Davis, 100 Ind. 422 (1884) ; Ellison v. Georgia R. Co., 87 
 Ga. 691, 13 S. E. 809 (1891); Rumsey v. Neii) York & N. E. R. 
 Co., 133 N. Y. 79, 30 N. E. 654, IS L. R. A. 618, 28 Am. St. 600 
 (1892) ; Truxton v. Fait, I Pen. (Del.) 483, 42 Atl. 431, 73 Am. St. 81 
 (1899); Daniels v. State, 2 Pen. (Del.) 586, 48 Atl. 156, 54 L. R. A. 286 
 (1901); Bradcr v. Brader, no Wis. 423, 85 N. W. 681 (looi) ; Thomas v. 
 Blair, in La. 678, 35 So. 811 (1903) ; Washington R. Co. v. Chapman, 
 26 App. D. C. 472 (1906) ; Bozinnan v. Essex Freeholders, 73 N. J. L. 543, 
 64 Atl. loio (1905) ; Commonwealth v. Walsh, 196 Mass. 369, 82 N. E. 19 
 (1907) ; Daughty v. Northwestern R. Co., 92 S. Car. 361, 75 S. E. 553 (1912) ; 
 Goehegan v. Union E. R. Co., 266 III. 482, 107 N. E. 786 (1915). 
 
 "The statement of facts is from the opinion of the court, only a portion 
 of which is printed. On the merits, the question certified was answered in 
 the negative. Fuller, C. J., McKenna and Day, JJ., dissenting. 
 
 i
 
 HERTZ V. WOODMAN 9OI 
 
 LuRTON, J. : It is urged that the Circuit Court of Appeals for the 
 Seventh Circuit is precluded from requesting the instruction of this 
 court, because it had in two cases theretofore decided the very ques- 
 tion now certified. United States v. Marion Trust Co-, 143 Fed. 
 301 ; United States v. Stephenson, not yet reported. In both cases 
 the decision was adverse to the contention of the United States. 
 The first was affirmed by this court without opinion, by an evenly 
 divided court, 203 U. S. 594, and, in the second, an application by 
 the United States for a writ of certiorari was denied. 212 U. S. 527. 
 It is further contended that, if not concluded by its own decisions 
 it was bound to follow the judgment of this court in Eidman v. 
 Tilghman, affirming the judgment of the circuit court of appeals of 
 the second circuit, reported in 136 Fed. 141, the affirmance by 
 this court being reported in 203 U. S. 580, and similar judgments of 
 affirmance in Philadelphia Trust Co. v. McCoach, 142 Fed. 120, 
 and 203 U. S. 539, and United States v. Marion Trust Co-, supra. 
 
 All of these cases were affirmances by an equally divided court 
 of the judgments of the court below in favor of the legatees or dis- 
 tributees who had sued to recover taxes paid upon legacies or shares 
 Avhich had passed to the plaintiff within one year after the death of 
 the testator or intestate, the several lower courts having ruled that 
 the tax had not been saved because it was not due and payable at the 
 time of the repeal of the act under which the tax was claimed. 
 
 The circuit court of appeals was obviously not bound to follow 
 its own prior decision. The rule of stare decisis, though one tend- 
 ing to consistency and uniformity of decision, is not inflexible. 
 Whether it shall be followed or departed from is a question entirely 
 within the discretion of the court, which is again called upon to con- 
 sider a question once decided. The court below in this instance, 
 when called upon to reconsider its former construction of tlie in- 
 heritance tax act, found itself confronted by the fact that this court 
 had been equally divided in opinion as to the proper interpretation 
 of the act, and for that reason alone obliged to affirm the ruling of 
 that and other courts against the legality of the tax w^hich had been 
 collected. If the decision of the court under review had been in 
 favor of the legality of the tax an affirmance must likewise have re- 
 sulted from an equal division. That court also found that its own 
 former view of the act had not been satisfactory to the circuit court 
 of appeals for the eighth circuit, which court had decided contrari- 
 wise in IVcsthus v. Union Trust Co., 164 Fed. 795. In such cir- 
 cumstances the court below was not only free to regard the ques- 
 tion as one open for determination, but one which might well be cer- 
 tified to this court, that tlie question of law which had never been 
 authoritatively decided by this court might be so determined by an 
 instruction as to how it should decide the matter when thus pre- 
 sented for reconsideration. 
 
 When this court in the exercise of its appellate powers is called 
 upon to decide whether that which has been done in the lower court 
 shall be reversed or affirmed, it is obvious that that which has been 
 done must stand unless reversed by the affirmative action of a ma-
 
 C)02 APPEAL AND ERROR 
 
 jority." It has therefore been the invariable practice to affirm, with- 
 out opinion, any judgment or decree which is not decided to be 
 erroneous by a majority of the court sitting in the cause. The 
 earhcst precedent is that of Ettlng v. United States Bank, ii Wheat. 
 (U. S.) 59, yS. Chief Justice Marshall said at the conclusion of the 
 opinion : "In the very elaborate arguments which have been made at 
 the bar, several cases have been cited which have been attentively 
 considered. No attempts will be made to analyze them, or to decide 
 on their application to the case before us, because the judges are 
 divided respecting it. Consequently, the principles of law which 
 have been argued can not be settled; but the judgment is affirmed, 
 the court being divided in opinion upon it." 
 
 In Durant v. Essex Co., y Wall. (U. S.) 107, no, Mr. Justice 
 Field, for this court, said, in respect of the effect of the affirmance 
 by a divided court: "There is nothing in the fact that the judges 
 of this court were divided in opinion upon the question whether the 
 decree should be reversed or not, and, therefore, ordered an affirm- 
 ance of the decree of the court below. The judgment of affirmance 
 was the judgment of the entire court. The division of opinion be- 
 tween the judges was the reason for the entry of this judgment; but 
 the reason is no part of the judgment itself." 
 
 To the same effect are IVesthus v. Union Trust Co., 168 Fed. 
 617; Hartmann v. Greenhow, 102 U. S. 672, 676. A different rule 
 seems to have been sanctioned in the English courts. ^^ Catherzvood 
 V. Ccslon, 13 Mees. & Wells. 261 ; Beamish v. Beamish, 9 H. L. 
 Cas. 274. 
 
 "Accord; Comniomvealth v. Bcaiimar dials, 3 Call (Va.) 122 (1801) ; 
 Clark V. Kean, 1 Del. Ch. 114 (1820) ; The Antelope, 10 Wheat. (U. S.) 66, 
 6 L ed 268 (1825) ; Etting v. Bank of United States, 11 Wheat. (U. S.) 59, 
 6 L. ed. 419 (1826) ; Beltzhoover v. Dnrra aL^iLS^UL & R. (Pa.) .329 (1827) ; 
 Bridge v. Johnson, 5 Wend. (N. Y.) 342 (1830) ; Cook v. Drew, 3 S. & P. 
 (Ala.) 392 (1833); Shannon v. Sliannon, 92 Mass. (10 Allen) 249 (1865); 
 Htmcke V. Francis, 27 N. J. L. 55 (1858) ; Newman v. Wriglit, 28 Ind. 105 
 (1867) ; Channon Co. v. Hahn, 90 111. App. 256 (1890) ; Gran v. Spagenherg, 
 53 Minn. 42, ^4 N. W. 933 (1893) ; Santa Rosa R. Co. v. Central R. Co., 112 
 Cal. 436, 44 Pac. 733 (1896) ; Fisher v. Kansas City Mining Co., 30 Colo. 220, 
 70 Pac. 330 (1902); Noileyj^^SluinrLak£X^.2.S^V7i. Super. Ct. S84 (1904) : 
 Barnard & Leas Mfg. Co. v. Smith, 77 Ark. 590, 92 5: W. 858 (1906); 
 Hutchinson v. Turner, 88 S. Car. 318, 70 S. E. 410, 70 S. E. 806 (1910) ; 
 Pensacola Electric Co. v. Humphreys, 61 Fla. 389, 54 So. 452 (1911) ; Dillivan 
 V. German Sav. Bank (Iowa), 136 N. W. 120; Abbottv. Treat (Maine), 87 Atl. 
 361 (1913) ; Rubinozv v. Public Service R. Co., 87 N. J. L. 328, 94 Atl. 54 (1915)- 
 In S7nith v. United States, 5 Pet. (U. S.) 292, 8 L. ed. 130 (1831), judgment 
 was reversed by a majority of the court although on each of the prmcipal 
 prounds of error a majority of the members of the court did not find error. 
 The minorities were held to unite and constitute a majority. Contra: Shollen-_ 
 hrrqrrv Ftrifiinn , g2 Pa. St. Q. ID ( 1 8663 ; Grogan V. Wisconsin Sugar Co., 
 15'b VV^. 406, 146 N. W. 491 (1914). Compare Florida East Coast R. Co. v. 
 Hayes. 6s Fla. i, 60 So. 782 (1913)- 
 
 "At common law on error in the King's Bench when the court was 
 equally divided no action could be taken without consent. Thornby v. Fleet- 
 wood' I Str. 379 (1719); Dean v. Pierce, i Camn. 466 (1808); Chapman v. 
 J.amphire, 3 Mod. 1^5 (1687). See Iveson v. Moore, i Salk. 15 (1698); 
 Procter's Case, 12 Coke 1 18 (1614) ; Deane v. Clayton, 7 Taunt. 489 (1817). 
 In the Exchequer Chamber and House of Lords judgment was affirmed, 2
 
 SOUTHERN BELL TEL. & T. CO. V. GLAWSON 903 
 
 Under the precedents of this court, and as seems justified by 
 reason as well as by authority, an affirmance by an equally divided 
 court is as between the parties a conclusive determination and ad- 
 judication of the matter adjudged, but the principles of law involved 
 not having been agreed upon by a majority of the court sitting pre- 
 vents the case from becoming an authority for the determination of 
 other cases, either in this or in inferior courts.^® The affinnance by 
 a divided court in the second case shows this, for if it was not so the 
 second equal division could not have happened, for the case would 
 have been controlled by the first equal division. 
 
 We shall therefore proceed to determine the question of law 
 presented by the cerificate of the circuit court of appeals, feeling 
 free to decide it as our judgments may dictate. 
 
 SOUTHERN BELL TEL. & T. CO. v. GLAWSON 
 
 Supreme Court of Georgia, 19 13 
 
 140 Ga. 507 
 
 The Court of Appeals certified the following question: 
 "Where a petition is dismissed in the trial court upon general 
 demurrer, and that judgment has been reviewed by the court of 
 appeals and reversed in a decision holding that the petition sets 
 
 Tidd's Pr. (gth ed.) 1178. In the present Court of Appeals where the court 
 is equally divided the judgment of the court below stands. The Franconia, 
 2 P. D. 163 (1877), but the case does not become a precedent to be followed 
 in similar cases subsequently brought before the court. TJie Vera Cruz (No. 
 2), 9 P. D. 96 (1881). In Eastern Steamship Co. v. Smith, L. R. (1891), 
 A. C. 310, in the House of Lords, where the court was equallj^ divided the 
 record is as follows: "Question put, that the judgment or decree complained 
 of be reversed; and it appearing that the votes were equal, thereupon accord- 
 ing to the ancient rule in the law, semper praesumitiir pro negante, it was 
 determined in the negative; therefore the judgment or decree complained of 
 was affirmed, and the appeal dismissed." Accord: Paqnin v. Beariclerk (i9o5), 
 A. C. 148; Jolly V. Kine (1907), A. C. i ; Smith v. Lion Brezvery Co. (1911), 
 A. C. 150. In Beamish v. Beamisli, 9 H. L. C. 274 (1861), it is laid down by 
 Lord Campbell that a decision of the House of Lords, although the lords are 
 equally divided, is as binding on the House itself and upon all inferior courts 
 as if it had been pronounced nemine dissentiente. 
 
 "Accord : People ex rel. The Attorney-General v. Nezv York, 25 Wend. 
 (N. Y.) 252, 35 Am. Dec. 66g (1840), at p. 256; Morse v. Goold, 11 N. Y. 281, 
 62 Am. Dec. 103 (1854) ; Hopkins v. McCann, 19 111. 113 (1857) ; Dubuque v. 
 Illinois Cent. R. Co., 39 Iowa 56 (1874) ; Griel's Estate. 171 Pa. St. 412, .33 Atl. 
 375 (1891) ; Luco v. DeToro, 88 Cal. 26, 25 Pac 983, 11 L. R. A. 543 (1891) ; 
 Stanstcad Election Case, 20 Canada Sup. Ct. 12 (1891) ; Pnryear v. Lynch, 
 121 N. Car. 255, 28 S. E. 410 (1897) ; State ex rel Hampton v. McCliing, 
 47 Fla. 224, 37 So. 51 (1904) ; Hand v. Stapleton, 145 Ala. 118, 39 So. 651 
 (1905) ; Territory v. Gaines, il Ariz. 270, 93 Pac. 281 (1908) ; Kalamazoo v. 
 Craivford, 154 Mich. 58, 117 N. W. 572 (1908) ; Fleming^ v^ Philadelphia Co., 
 234 Pa. 74, 82 Atl. 1095 (1912) ; Dewey Land Co. vrSTevens,^'K. J . Eq., 314, 
 90 Atl. 1040 (1914). Contra :F/orenrc v. Berry, 62 S. Car. 469, 40 S. E. 871 
 C1901) ; American Mortg. Co. of Scotland v. Woodward, 83 S. Car. -n, 
 65 S. E. 739 (1909).
 
 qo.\. APPEAL AND ERROR 
 
 forth a cause of action, ami, subsequently to the rendition of such 
 decision by the Coiu't of Appeals, the Supreme Court renders a deci- 
 sion in another case, the elTect of which is to show that the decision 
 of the Court of Appeals is erroneous, and, after the rendition of 
 such decision by the Supreme Court, the case first mentioned again 
 comes before the Court of Appeals upon writ of error assigning error 
 upon the judgment overruling a motion for new trial filed by the de- 
 fendant, is the Court of Appeals, upon consideration of the second 
 writ of error, bound by its own decision in the former case, or should 
 it follow and apply the contrary decision of the Supreme Court?" ^^ 
 LuMPKix, J.: The first question propounded by the Court of 
 Appeals raises an interesting question of practice. It involves what 
 is commonly called the doctrine of "the law of the case." This doc- 
 trine is thus stated in 26 A. & E. Encyc. of Law (2d ed.), 184: 
 "The doctrine of 'the law of the case' may be stated thus : A matter 
 decided on one appeal can not be re-examined on a second appeal 
 in the same case; for the decision of an appellate court, whether 
 right or wrong, in a case before it, is conclusive upon the points 
 presented throughout all the subsequent proceedings in the case, 
 both upon the appellate court itself and upon the trial court. Con- 
 cisely it is said that the decision on appeal becomes 'the law of the 
 case.' " ^^ In this court the rule is well settled. In Western & 
 Atlantic R. Co. v. Third Nat. Bank, 125 Ga. 489, it was held: "A 
 
 *'A second point in the case is omitted. 
 
 ^Accord: Skillcrn v. May, 6 Cranch (U. S.) 267, 3 L- ed. 220 (1810) ; 
 The Santa Maria, 10 Wheat. (U. S.) 431. 6 L. ed. 359 (1825); Booth v. 
 Common-ivealth, 48 Mass. (7 Mete.) 285 (1843); Washington Bridge Co. v. 
 Steuart, 44 U. S. (3 How.) 413, n L. ed. 658 (1845) ; Semple v. Anderson, 
 9 111. (4 Gilm.) 546 (1847); Dewcv v. Gray, 2 Cal. 374 (1852); Wilson v. 
 Wilson, 5 H. L. Cas. 40 (1854) ; Miller v. Jones, 29 Ala. 174 (1856) ; Beamish 
 V. Beamish, 9 H. L. Cas. 274 (1S59) ; Davidson v. Dallas, 15 Cal. 75 (i860) ; 
 Stacy V. Vermont Cent. R. Co., 32 Vt. 551 (i860) ; Leese v. Clark, 20 Cal. 387 
 (1862) ; Mason v. Mason, 5 Bush. (Kv.) 187 (1868) ; Page v. Fowler, 37 Cal. 
 100 (i86q) ; Headlcv v. Challiss, 15 Kans. 602 (1875) ; Caverly v. McOwen, 
 126 Mass. 222 (1879) ; Turner v. Staples, 86 Va. 300, 9 S. E. 1 123 (i88g) ; 
 Brandnrui^-xiU^s^^^ St 88 (r^j^o) ; Klauber v. San Diego R. Co., 98 Cal. 
 105, 32 Pac. 876 (1893) ; Henning v. Eldridge, 146 111. 305, 32 N. E. 754 (1893) ; 
 Bolton V. Hey, i6 8_Pa^_SL. /iT8 , 37 Atl. 1097 (1895) ; Brown v. Pontiac Mm. 
 Co., 109 Mich. 535T67 N. W. 546 (1896) ; Cowen v. Pennsylvania Plate Glass 
 Co.', 188 Pa. Sj. 542, 41 Atl. 615 (1898); Saxe v. Burlington, 70 Vt. 449, A} 
 Atl 438 (1898) ; London St. Tramways Co. v. London County Council, 
 L R. (1898), A. C. 375; Dempster v. People, 183 111. 321, 55 N. E. 713 (1899) ; 
 Cottrell V. Watkins, 96 Va. 783, 32 S. E. 470 (1899) ; Hopkins v. Roth, 105 
 Ky 357 49 S W. 18 (1899) ; Sherman V. Port Huron Engine &c. Co., 13 S. 
 Dak 95,' 82 N. W. 413 (1900) ; In re Laudy, 161 N. Y. 429, 55 N. E. 914 (1900) ; 
 Smith V. Neufield, 61 Nebr. 699, 85 N. W. 898 (1901) (disapproving Hastings 
 V. Foxworthy, 45 Nebr. 676, 63 N. W. 955, 34 L- R- A. 321 (1895)); 
 Illinois V. Illinois Cent. R. Co., 184 U. S. 77, 46 L. ed. 440 (1902); 
 Hillyer v. Winstcd, 77 Conn. 304, 59 Atl. 40 (1904) ; James v. Lyons Co., 147 
 Cal. 69, 81 Pac. 275 (190s) ; Harwi Hardware Co. v. Klippcrt, 7Z Kans. 783, 
 85 Pac. 784 (1906) ; Brady v. Carteret, 72 N. J. Eq. 904, 67 Atl. 606 (1907) ; 
 Alerding v. Alliwn, 170 Ind. 252, 83 N. E. 1006 (1907); Huntington v. 
 Westerfield, 119 La. 61s, 44 So. 317 (1907) ; Cape Girardeau & T. B T R. 
 Co V. 5". T. & M. Bridrje Co., 2m Mo. 286, 114 S. \V. 1084 (1908) ; McDon- 
 ough V Williams, 86 Ark. 600, 112 S. W. 164 (1908) ; Roach v. Sanborn L. Co., 
 140 Wis 435, 122 N. W. 1020 (1900) ; Smith v. Lord, in Md. 500, 75 Atl. 
 109 (1909) /Heard v. Cherry, 150 Ky. 318, ISO S. W. 361 (1912); Brown v.
 
 SOUTHERN BELL TEL. & T. CO. V. GLAWSON 905 
 
 decision by the Supreme Court is controlling upon the judge of the 
 trial court, as well as upon the Supreme Court when the case reaches 
 that court a second time. The principle in the decision may be 
 reviewed and overruled in another case between different parties, 
 but as between the parties the decision stands as the law of the case, 
 even though the ruling has been disapproved by the Supreme Court 
 in a case decided before the second appearance of the case in that 
 court." ^° Had the decision on the demurrer been rendered here, it 
 would stand as the law of the case, although a different ruling might 
 have been made in regard to the principle involved before the case 
 reached this court for the second time. Does it alter the rule that 
 the decision on the demurrer was made by the Court of Appeals, 
 and that the case is in that court for the second time ? We think not. 
 It was argued, that, as the constitution declares that "the decisions 
 of the Supreme Court shall bind the Court of Appeals as prece- 
 dents," this abolished the "law of the case" rule under circumstances 
 like those involved in the question now under consideration ; and 
 that the Court of Appeals was bound to follow the later decision of 
 this court on the same principle in a different case, instead of its 
 own former decision in the same case. To this contention there are 
 two replies. The first is that, in the fallibility and imperfection 
 which inheres in all human institutions, lawyers, and even judges, 
 sometimes honestly differ as to tlie application of a precedent. The 
 Court of Appeals is a court of last resort as to the cases within its 
 jurisdiction (omitting reference to constitutional questions and cer- 
 tified questions). Its decisions wathin its jurisdiction, are final. 
 They can not be treated as nullities. If by any chance the judgment 
 in a particular case should be erroneous, it would still be binding. 
 Saffold V. Mangum, 139 Ga. 119; Buck v. Duval, 139 Ga. 599.^*' 
 
 Western Union Telegraph Co., 92 S. Car. 354, 75 S. E. 542 (1912) ; Norton v. 
 Lilley, 214 Mass. 239, loi N. E. 367 (1913) ; O'Connor v. Great Northern R. 
 Co., 120 Minn. 359, 139 N. W. 618 (1913) ; Gibson v. Clcary, 77 Wash. 683, 
 138 Pac. 269 (1914) ; Monroe v. Penna. R. Co., 87 N. J. L. 701, 94 Atl. 585 
 (1915) ; Connelley v. Penna. R. Co., 221 Fed. 508 (1915) ; Nat. Bank of Com- 
 merce V. United States, 224 Fed. 679 (1915). In some jurisdictions an errone- 
 ous judgment may be overruled on a second appeal in the same case. 
 Henry V. Atchison, T. & S. F. R. Co., 83 Kans. 104, 109 Pac. 1005 (1910) ; 
 Moufton v. Reid, 54 Ala. 320 (1875), statute; Burns v. Ledhcttcr, 56 Tex. 282 
 (1882) ; United States v. Elliott, 12 Utah 119, 41 Pac. 720 (1895) ; Beaky v. 
 Smith, 158 Mo. 515, 59 S. W. 984, 81 Am. St. 317 (1900), and semble; Smith 
 V. Lewis, 26 Conn, no (1857) ; Penna. Co. v. Piatt, 47 Ohio, 366, 25 N. E. 
 1028 (1890) ; Cluff V. Day, 141 N. Y. 580, 36 N. E. 182 (1894) ; Eaton v. Alger, 
 47 N. Y. 345 (1872). 
 
 "Citing Gilmore V. Johnson, 29 Ga. 67 (1859) ; Ingram v. Trustees of 
 Mercer University, 102 Ga. 226, 29 S. E. 273 (1897); Allen v. Schweigert, 
 113 Ga. 71, 38 S. E. 397 (1901) ; McLandon v. Macon D. & S. R. Co., 123 Ga. 
 253, 51 S E. 317 (1905). 
 
 -"Accord: Wakelee v. Davis, 44 Fed. 532 (1891) ; Henning v. Eldridge, 
 146 111. 305, 33 N. E. 754 (1893) ; Silva v. Pickard, 14 Utah 245, 47 Pac. 144 
 (1896) ; Solomon V. Continental Fire Ins. Co., 28 App. Div. 213, 50 N. Y. S. 
 922 (1898) ; Union Nat. Bank of Chicago v. Post, 93 111. App. 339 (1900) ; 
 Morgan v. Johnson, 106 Fed. 452 (1901) ; Leeds v. New York Telephone Co., 
 79 App. Div. 121, 80 N. Y. S. 114 (1903) ; Cleveland, C, C. & St. L. R. Co. v. 
 Alfred, 123 111. App. 477 (1905) ; In re School Street of Yonkers, 162 App. 
 Div. 158, 147 N. Y. S. 195 (1914).
 
 9o6 APPEAL AND ERROR 
 
 Any other rule would create utter confusion. It is the duty of the 
 superior courts to follow the decisions of the Supreme Court as 
 precedents. Suppose a superior court should make errors in the 
 clTort to do so, but no exception could be taken to the judgment, it 
 could not be disregarded as void. There must be somewhere an end 
 of controversy, and that necessity is what former Chief Justice 
 Bleckley doubtless had in mind when in his opinion in Broome V; 
 Davis, Sy Ga. 584, he humorously referred to "the fallibility which 
 is inherent in all courts except those of last resort." 
 
 Counsel for the plaintiff in error relied strongly on the decision 
 in Messenger v. Anderson, 225 U. S. 436. But the statement there 
 made, that the phrase, "the law of the case," expresses the practice 
 of the courts generally to refuse to open what has been decided, 
 rather than a limit on their povv'cr, does not alter the fact that in 
 courts of last resort the rule is generally followed. We need not 
 distinguish between the propriety of the Federal Court of Appeals 
 following a construction of a will by the higher court in the state 
 where it was executed and a court of last resort following its deci- 
 sion in the same case.-^ 
 
 To the first question propounded we accordingly answer that 
 the former decision of the Court of Appeals has settled the law of 
 the case to the extent to which the decision went ; and it should be 
 follov,-ed in this case, though in others the subsequent decision of 
 the Supreme Court should be followed.-" 
 
 -*CitinR- Illinois V. Illinois Cent. R. Co., 184 U. S. 77, 46 L. ed. 440 (1901) ; 
 United States v. Camou, 184 U. S. 572, 46 L. ed. 694 (1901) ; Great Western 
 Tel. Co. V. Burnham, 162 U. S. 343, 40 L. ed. 993 (1895). And see King v. 
 IV est Va., 2i(i U. S. 92, 54 L. ed. 396 (1909)- 
 
 ^Although a decision has been overruled in a subsequent case it will 
 continue to be the law of the particular case in which it was made. Thomson 
 V. Albert, 15 :Md. 268 (1S59) ; Herrick v. Belknap, 27 Vt. 673 (1854) ; Barton 
 V. Thompson, 56 Iowa 571, 9 N. W. 890, 41 Am. Rep. 119 (1881) ; Brown v. 
 Marion Bank, 18 Ky. L. 186, 35 S. W. 926 (1896) ; Kelley v. Rhoads, 7 Wyo. 
 237, 51 Pac. 593, 39 L. R. A. 504, 75 Am. St. 904 (1897) ; State v. Clinton 
 County, 162 Ind. 580, 68 N. E. 295, 70 N. E. 373 (1903) ; State v. Bell, 136 N. 
 Car. 674, 49 S. E. 163 (1904), and semble; Hihhits v. Jack, 97 Ind. 570, 49 
 Am. Rep. 478 (1884) ; Burlington R. Co. v. Dey, 89 Iowa 13, 56 N. W. 267 
 (1893) ; Bradley v. N orris, 67 Minn. 48, 69 N. W. 624 (1896) ; McMaster v. 
 Dyer, 44 W. Va. 644, 29 S. E. 1016 (1S98) ; State v. Savage, 64 Nebr. 684, 
 go N. W. 898, 91 N. W. 557 (1902). So also, a party who accepts the decision 
 of an intermediate appellate court, makes the decision the law of the case 
 notwithstanding a subsequent conflicting decision of the court of last resort. 
 Ogle V. Turpin, 8 111. App. 453 (18S1) ; District of Columbia v. Brezver, 32 
 App. D. C. 388 (1909); Campbell v. Perth Amboy Mut. Loan Homestead 
 Assn., 76 X. J. Eq. 347, 74 Atl. 144 (1909) ; M£fc2£Z:;^£.^^^'^*-242_Ea^6a 88 
 Atl. 915 (1913). Contra: Thompson v. Irzvin, 76 Mo. App. 418 (1898); 
 Wolf V. Dxi-elling House Ins. Co., 86 Mo. App. 580 (1900), But where a case 
 is tried and then retried by order of a subordinate court, while the subordi- 
 nate court may be limited by its original decision, the highest court, when the 
 case reaches it, is not so limited. Messingcr v. Anderson, 225 U. S. 436, 56 
 L. ed. 1152 (1911), reversing 171 Fed. 785; Sidcnbach v. Riley, in N. Y. 560, 
 19 N. E. 275 (1888) ; Panama R. Co. v. Napier S. Co., 166 U. S. 280, 41 L- cd. 
 1004 (1896) ; Brown v. Tourtelotte, 24 Colo. 204, 50 Pac. 195 (1897) ; Paddock 
 V. Mo. Pac. R. Co., 155 Mo. 524, 56 S. W. 453 (1899) ; United States v. Denver 
 &c. R. Co., 191 U. S. 84, 48 L. ed. 106 (1903).
 
 JErFRY V. WOOD 90/ 
 
 SECTION 8. JUDGMENT 
 
 JEFFRY V. WOOD 
 
 In the King's Bench, 1720 
 
 I Sfr. 439 
 
 The plaintiff in error assigned errors in law, and in fact ; and 
 on demurrer for duplicity the question was, what judgment should 
 the court give ; and after consideration they ordered an entry quod 
 affirmetur,-^ according to Yelv. 58. 
 
 BANK OF THE COMMONWEALTH OF KY. v. ASHLEY 
 
 Supreme Court of the United States, 1829 
 
 2 Pcf. (U. S.) 327 
 
 Error to the Circuit Court of Kentucky. 
 
 This action was in all respects similar to that of the President, 
 Directors and Company of the Bank of the Commonwealth of Ken- 
 tucky V. IVister, Price and Wister,^^ with the exception only, that it 
 was founded on the notes of the bank payable to bearer, and usually 
 
 ''The common judgment for the defendant in error is that the judgment 
 be affirmed. Y. B. 21 Edw. IV 44; Roll. Abr. 805; Bac. Abr. Error (m) 2. 
 "But when the defendant has pleaded a release of errors or the Statute of 
 Limitations, and it is found for him, the judgment is that the plaintiff be 
 barred of his writ of error, and not quod afiirmetur." i Arch. Pr. (7th ed.) 
 376; Dent V. Lingood, i Str. 683 (1725) ; Street v. Hopkinson, 2 Str. 1055 
 (1736). Compare Kcrle v. Clifton, 3 Salk. 214 (1689) ; Cunningham v. Hous- 
 ton, I Str. 127 (1719), where the judgment was "nil capiat per breve." 
 
 In State v. Kriig, 94 Ind. 366 (1883), it is said: "An appeal to the 
 Supreme Court does not affect the binding force of a judgment until it is 
 reversed. It vras said in Nill v. Comparct, 16 Ind. 107, 79 Am. Dec. 411, that 
 'the only effect of an appeal to a court of error, when perfected, is to stay- 
 execution upon the judgment from which it is taken. In all other respects, 
 the judgment until annulled or reversed, stands binding upon the parties, as 
 to every question directly decided.' If an aopeal does not destroy the binding 
 force of a judgment, then certainly the affirmance of the judgment can not 
 have that effect. A general judgment in the trial court decides all the issues in 
 favor of the successful party. The affirmance of the judgment on appeal, 
 without reference to the ground upon which it is placed, leaves it in full force 
 precisely as though no appeal had been taken." Accord : Finch v. Hollinger, 
 46 Iowa 216 (1877) ; Prescott v. Barnes, 51 Iowa 409, i N. W. 660 (1879) ; 
 Steinhach v. Stewart, ii Wall. (U. S.) 566, 20 L. ed. 56 (1870). See also, 
 Chickering V. Failes, 29 111. 294 (1862) ; IVerhorn v. Pinney, 76 Ala. 201 
 (1884) ; Aldrich v. Maher, 153 111. App. 413 (1910) ; Freeman v. Young, 136 
 Ga. 754, 72 S. E. 41 (1911) ; Plunk ctt v. Hamnett, 51 P a. Super. Ct. 98 
 (1912) ; In re Cidver's Estate, 159 Iowa 679, 140 JNl. W. 878 0913)- ' 
 
 "2 Pet. (U. S.) 318 (1829).
 
 9C>8 AITKAI. AND F.RROR 
 
 denominated bank notes. The declaration contained counts in debt 
 on simple contract, averring that the plaintiffs in the case were the 
 holders of the notes, and that they became their property by deliv- 
 ery, and that i^aymcnt had been demanded and liad been refused. 
 The defendants entered the same plea as in the case referred to, 
 which was adjudged against them, and a trial was had and a verdict 
 and judgment rentlered for the jilaintiff below for the whole debt, 
 with damages for the detention from the commencement of the suit. 
 
 The bill of exceptions presented the same points to tlie court as 
 in the former case, and the only question which was argued before 
 this court was upon the effect of an omission to describe one of the 
 sixty-eight bank notes in the declaration, the verdict and judgment 
 having been given for a sum including the note, as if the same had 
 been so described. 
 
 The counsel for the defendants in error, Mr. Caswell, stated 
 that a remittitur would be entered for the amount of the note which 
 had not been set out in the declaration, if this court would permit 
 the same. The debet and detinet in the declaration, stated correctly 
 the amount of the plaintiff's claim, and the verdict and judgment 
 were in conformity therewith. 
 
 ]\Ir. Nicholas, for the plaintiff in error, replied that this court 
 can not amend the declaration, and that the plaintiffs have a right to 
 avail themselves of the error. Amendments may be made in the 
 courts from which the case is brought, while the record is in the 
 possession of those courts ; but this writ of error has brought up the 
 whole record, and the power to amend in the circuit court no longer 
 exists. 
 
 JoHXSON, J.: This was an action of debt instituted upon tlie 
 bank notes of the Commonwealth Bank, in which the defendants 
 have recovered judgment for six thousand three hundred and fifty 
 dollars, with interest. The bank filed the same plea to the jurisdic- 
 tion of the court below, as was filed in the case of Wister, Price and 
 W'ister. The decision therefore delivered in that case, renders it 
 unnecessary to remark upon this part of the present cause. No 
 other plea having been filed, judgment went by default for the sum 
 claimed by the writ. But upon examining the declaration which 
 purports to count severally upon sixty-eight bills, it appears that 
 one of the sixty-eight has been omitted. Of consequence, the dec- 
 laration makes out a less sum, and one debt less in number than the 
 writ claims or the judgment gives. This is error; but the plaintiffs 
 now move for leave to cure it, by entering a remittitur of the debt 
 so omitted, and damages pro tanto. And this court has taken time 
 to consider the motion. 
 
 That the party would have had a right to remit in the court be- 
 low can not be questioned ; it is every day's practice, sustained by the 
 gravest precedents. And the right extends, not only to the amount 
 of damages, but to several causes of action, distinct debts, distinct 
 acres of land, and distinct pleas. Cro. Jac. 146; Hob. 178; Raym. 
 395 ; 3 D. & E. 659. And the right is recognized as existing after 
 error brought, and while the cause is depending in the court above.
 
 BANK &C. KENTUCKY V. ASHLEY 909 
 
 and the court of error will suspend its judgment to give time for 
 the defendant in error to amend in tlie court below. 3 D. & E. 349, 
 659, 749> etc. 
 
 But the difficulty consists in this, that the writ of error here 
 does not bring up the original record, but only a transcript, as in 
 the case of error to the House of Lords. In error to the King's 
 Bench, that court will permit a remittitur, because it gets possession 
 of the record (3 D. & E. 349) ; but in error to the house of lords 
 it is otherwise, and the entry must be made below for the reason 
 assigned. 3 D. & E. 659. After such amendment made in our cir- 
 cuit courts, the party would have to avail himself of it by suggest- 
 ing diminution, and bringing up tlie amended record by certiorari. 
 
 This court, therefore, thinks itself authorized to make a prece- 
 dent in furtherance of justice, whereby a more convenient practice 
 shall be introduced; and to allow the party to enter his remittitur 
 here ; but on payment of the costs, if the writ of error is prosecuted 
 no farther after such amendment made. Such seems to be the rule 
 in the British courts (Barnes, 17), and we think it reasonable. The 
 defendant here will be permitted to enter the remittitur, and upon 
 such entry the judgment will be affirmed, without costs in error. '^ 
 
 -^Accord: Pick-wood v. Wright, I H. BI. 642 (1791) ; Fury v. Stone, 2 
 Dall. 184 (1792) ; Hardy V. Cathcart, i Marshall 180 (1814) ; Usher v. Daiisev, 
 4 M. & S. 94 (1815) ; Herbert v. Hardenhergh, 10 N. J. L. 222 (1828) ; Clark 
 V. Pritchett, 5 Harr. (Del.) 283 (1850); Graha m v. Keys^2Q Pa. ^t. j8p 
 (1857) ; McKinley v. Bcaslcy, 5 Sneed (Tenn.) 170 (1857) ; Doty v. Rigour, 
 9 Ohio St. 526 (1859) ; De Costa v. Flat Water Mining Co., 17 Cal. 613 (1861) ; 
 Ward V. Haws, 5 Minn. 440 (1861) ; Sears v. Conover, 142 N. Y. (3 Keyes) 
 113, 4 Abb. Dec. 179, 2>3 How. Pr. (N. Y.) 324 (1866) ; Machey v. Olssen, 
 12 Ore. 429, 8 Pac. 357 (1SS5); Emerson v . Schoo nmak er. i.^; Pa. St. 4^7, 
 19 Atl. 1025 (1890) ; Hansen v. Boyd, 161 U. S. 397, 40 L. ed. 746 (1895), 
 but the order was to file the remittitur in the circuit court and produce and 
 file a certified copy thereof in the Supreme Court; Farrell v. Manhattan R. 
 Co., 43 App. Div. 143, 59 N. Y. S. 401, 30 Civ. Pro. R. 118 (1899) ; Carbcrry 
 V. Farns-worth, 177 Mass. 398, 59 N. E. 61 (1901) ; Thornton v. Rhode Island 
 R. Co.^ (R.^ I.), 67 Atl. 452 (1906) ; Smith v. Hoctor, 107 N. Y. S. 33 (1907) ; 
 Ludzi'ig P\ano Co. v. Browne, 33 Pa. Super. Ct. 81 (1907), remittitur' filed 
 below ; Scliwitters v. Springer, 236 ill. 271, 86 N. E. 102 (1908) ; Weinert v. 
 Merchants' S. W. Co., 127 App. Div. 826, 112 N. Y. S. 123 (1908) ; Skow v. 
 Green Bay & W. R. Co., 141 Wis. 21, 123 N. W. 138 (1909) ; Moore v. St. 
 Louis Tr. Co., 226 Mo. 689, 126 S. W. 1013 (1909) ; East St. Louis & St. 
 Louis Exp. Co. v. ///. Trac. Co., 169 111. App. 24 (1911) ; Ostcrling v. Carpen- 
 ter 2y) Pa . t:;^. 70 Atl. 405 (1911) ; Ellison v. GreetiviW S. & A. R. Co., 
 94 S. Car. 425, 77 S. E. 722,, 78 S. E. 231 (1913) ; Kretzinger v. Lewis, 174 111. 
 App. 43 (1912) ; Stepan v. Svoboda, 178 111. App. 227 (1913) ; Simoneau v. 
 Pacific E. R. Co., 166 Cal. 264, 136 Pac. 544 (1913) ; Van Deenburg v. Scott, 
 158 App. Div. 87, 143 N. Y. S. 310 (1013) ; St. Louis & S. F. R. Co. v. Goode, 
 42 Okla. 784, 142 Pac. 1185 (1914) ; Gibbons v. Rhode Island, 37 R. I. 89, 91 
 Atl. 9 (1914). Otherwise where the appellate court can not ascertain the 
 extent to which the error was prejudicial. Swearingen V. Pendleton. 4 Ser sr. 
 & R. (Pa.) 38 9 (1818); Sceman v. Feeney, 19 Miiin. 79 (1872) ; Orange & 
 A. K. Co. V. Fidvey, 17 Grat. (Va.) 366 (1867) ; Williams v. Durst, y-, Tex. 
 421 (1871) ; Thompson v. Lnmley, 7 Daly (N. Y.) 74 (1877) ; Dillard v^Elling- 
 ton, 62 Ga. 389 (1879) ; Pavev v. American Ins. Co., 56 Wis. 221, 13 N W. 
 925 (1882) ; McNail v. Welch, 21 111. App. 378 (iSS6^ ; St. Louis I. M. & S. 
 R. Co: V. Waren, 65 Ark. 619, 48 S. W. 222 (1898) ; Noel Const. Co. v. 
 Armored Con. Co., 120 Md. 237, 87 Atl. 1049, Ann. Cns. 1915A, i032n (1913) ; 
 Midland V. R. Co. v. Scoville, 109 Ark. 29, 158 S. W. 954 (1913). Contra:
 
 9:0 APPEAL AND r.RROR 
 
 This cnnsc came on lo l)e hoard on a transcript of the record 
 from the Circuit Court of the United States for the district of Ken- 
 tucky, and it "was argued by counsel. On consideration whereof, it 
 appearing to this court that the judgment of the said circuit court 
 is for a larger sum than that claimed and counted upon in the dec- 
 laration in said cause in said court, tlie said defendants in error filed 
 here in open court a remittitur in the following words, to wit: 
 
 "Supreme Court of the United States of January term, in the 
 year of our Lord eighteen lumdrcd and twenty-nine. Be it remem- 
 bered, that on the trial of this cause before the Supreme Court of 
 the United States on a writ of error to the Circuit Court of the 
 United States, for the district of Kentucky, on the fourteenth day of 
 February, in the year aforesaid, it appeared that one of the sixty- 
 eight bills upon which the declaration purported to count severally, 
 to wit, a bill for the amount of fifty dollars, had been omitted in said 
 declaration ; the declaration making out a less sum, and one debt less 
 in number, than the w^rit claimed or the judgment gave. And here- 
 upon the said John Ashley and John Ella, Junior, defendants in 
 error, by Daniel J. Caswell, their attorney and counsel in this court, 
 freely here in court remit to tlie said president and directors of the 
 Bank of the Commonwealth of Kentucky, plaintiffs in error as afore- 
 said in this cause, as V\^ell the said debt of fifty dollars so omitted as 
 aforesaid, the residue of the debt aforesaid, together with interest on 
 the said fifty dollars at the rate of six per centum per annum, from 
 the twenty-second day of September, in the year of our Lord 
 eighteen hundred and twenty-five, as also damages pro tanto. As 
 witness our hands this fourteenth day of February, in the year of 
 our Lord eighteen hundred and twenty-nine. John Ashley and 
 John Ella, Junior, by Daniel J. Caswell, their attorney and counsel 
 in this court." 
 
 Whereupon it is considered, ordered, and adjudged by this 
 court, that the judgment of the said circuit court in this cause be, 
 
 Wray v. Lister, 2 Str. 1 1 10 (1738) ; Cheveley v. Morris, 2 Wm, Bl._ 1300 
 (1-70) ; Hutchinson v. Crosscn, 10 Mass. 252 (1813) ; Greenleaf v. Hill, 30 
 Maine 165 (1849) ; Frank v. Morrison, 55 Md. 399 (1880). 
 
 Verj^ generally, todaj^ an appellate court having all the facts before it on 
 the record may, in the interests of justice, modify a judgment without revers- 
 ing- it if no injustice is done thereby to either partv. Dunbar v. Hitchcock, 
 3 M. & S. =;9i (1815) ; S j^ckmnn y. Bvers. 6 Scrg. & R. ( Pa.) 385 (1821) ; 
 Herbert V. ^Hnrdcnhernh. 10 N. T. L. 222 (1828) : Haas \\Ez'ans, S Watts & 
 S. (Pa .) 252 (1843); Con-jjcll V. Clay pool, 8 Blackf. (Ind.) 124 (ia4o); 
 Cnmwn'.iivealth V. Haffev, 6 Pa. St. 3^ 8 (1847); Anna Tryon V. Sutton, 13 
 Cal. 490 (i8s9) ; Browncllv. Winnie, 29 N. Y. 400, 29 How. Pr. (N. Y.) 193, 
 86 Am. Dec. 314 (1864) ; Milly v. Harrison, 7 Coldw. (Tenn.) 191 (1869); 
 Lehigh V. R. Co. v. McFarland, 44 N. J. L. 674 (1882) ; Hayes v. Pratt, 
 id7 tl. S. 557, 37 L. ed. 279 (1892) ; Terry v. Wendcroth. I47 Pa. St. KIQ. 
 23 Atl. 763 (1892) ; Curran v. Burgess, 155 Mass. 86, 28 N. E. 1135 (1891) ; 
 C ommomveahh v. Phila Cn i-y Pn St. ^^t. 27 Atl. 378 (1893) ; Burnhamv. 
 Dtlinn, TOO Mich. 359, 59 N. W. 643 (1894); Reynolds v. Aetna L. L Co., 
 160 N. Y. 63^. 55 N. E. 305 (1899) ; Jones v. Jones, 141 Ga. 727, 82 S. E. 451 
 (1914); National Council, &c. v. Sealey (Tex. Civ. App.), 162 S. W. 455 
 (1914).
 
 LOOMIS •;:'. LEHIGH VAL. R. CO. 9II 
 
 and the same is hereby affirmed, without costs, deducting from the 
 said judgment of the said circuit court, the amount so deducted as 
 aforesaid. 
 
 LOOMIS V. LEHIGH VALLEY R. CO. 
 
 Court of Appeals of New York, 19 13 
 
 208 A^. Y. 312 
 
 The plaintiffs, who were dealers in produce shipped over the 
 defendant's lines, both within and without the state of New York, 
 brought this action to recover $322, expended by them in construct- 
 ing grain doors and bulkheads in defendant's freight cars, which, 
 they contended, should have been furnished by the defendant. From 
 a verdict and judgment for plaintiffs the defendant appealed. The 
 Court of Appeals found that as to intrastate shipments the defendant 
 was liable, as there was a common-lav/ duty to equip its cars for the 
 service for which they were intended, but that the state courts had 
 no jurisdiction over interstate shipments, because that subject had 
 passed exclusively under the jurisdiction of the federal courts by 
 virtue of the Interstate Commerce Act. The question then was, 
 should the judgment be modified or reversed ?^^ 
 
 Werner, J. : We have yet to consider whether we can divide 
 the single judgment recovered by the plaintiffs, so as to sustain that 
 part predicated upon the intrastate shipments, and to disallow for 
 lack of jurisdiction that part which rests upon the interstate ship- 
 ments. The general rule in actions at law is that upon appeal from 
 a single judgment the appellate court must affirm or reverse as to 
 the whole of the recovery and as to all the parties.^'' Goodsell v. 
 
 '"The statement of facts is condensed and only so much of the opinion 
 given as relates to the judgment on appeal. 
 
 "Accord: Bac. Abr., Error (m) ; Loyd v. Pearse, Cro. Jac. 424 (1611) ; 
 Williams V. Cutting, 2 Ld. Raj^m. 825 (1702) ; Cuming v. Sihly, 4 Burr. 2489, 
 I Term Rep. 239 (1769) ; Riggs v. Tyson, i N. J. L. 34 (1790) ; Jackson v. 
 Cqm.m.nm t j^n.lth. -2 Binn. (V7\\ 79 (1809) ; Richards V. Walton, T2~JohtT5. 
 (N. Y.) 434 (1815) ; Swearingcn v. Pendleton, 4 Serg. & R. (P a.) 389 (1818) ; 
 Gaylord v. Payne, 4 Conn. 190 (,1822; ; Hums v. J'oliiUon, i J." J. Marsh. (Ky.) 
 196 (1829) ; Herd v. Dew, 8 Humph. (Tenn.) 501 (1847) ; Murray v. Em- 
 vions, 26 N. H. 523 (i8s3) ', Wolstenholme v. Wolstcnholme File Mfg. Co., 
 64 N. Y. 272 (1876) ; Rollins v. Fisher, 17 W. Va. 578 (1880) ; Little R. R. Co. 
 V. Perry, 37 Ark. 164 (1881) ; Mutual Loan & B. Assn. v. Price, i() Fla. 127 
 (1882) ; Ala. R. Co. v. McAlpine, 80 Ala. 73 (1885) ; Bond v. Wabash R. Co., 
 67 Iowa 712, 25 N. W. 892 (1885) ; Webster-Glover Lumber &c. Co. v. St. 
 Croix, 71 Wis. 317, 36 N. W. 864 (1888) ; Goodsell v. Western Union Tele- 
 graph Co., 109 N. Y. 147, 16 N. E. 324 (1888) ; Beam v. Jennings, 96 N. Car. 
 82, 2 S. E. 245 (1887) ; Moses v. Grainger, 106 Tenn. i, 58 S. W. 1067, 53 
 L. R. A. 857 (1900) ; Newbold v. Douglas, 123 Wis. 28, 100 N. W. 1040 (1904) ; 
 Hunter S. P. Co. v. Hunter, lOO App. Div. 191, 91 N. Y. S. 620 (1905) ; 
 Powers V. World's Fair Mining Co., 10 Ariz. 5, 86 Pac. 15 (1906) ; Chicago 
 City R. Co. V. Schaefer, 121 111. App. 334 (1905) ; Glos v. Greiner, 226 111. 546, 
 80 N. E. 1055 (1907) ; Adams v. Carter, 92 Miss. 579, 47 So. 409 (1908) ; 
 hmanuel v. Walter, 138 App. Div. 818, 123 N. Y. S. 491 (1910) ; Borough 
 Const. Co. V. New York, 200 N. Y. 149, 93 N. E. 480 (1910) ; Money v. 
 Dennison, no Ark. 571, 163 S. W. 783 (1914).
 
 yij Arrr.AL Axn i:kror 
 
 ll'cstcni Union Tel Co., 109 N. Y. 14;; Wolstcnhohnc v. Wolsten- 
 holme Filr Mfg. Co.. 64 N. Y. 272; Nat. Bd. of Marine Underwrit- 
 ters V. Xat. Ihinh of (lie< Kepuhlie, 146 N. Y. 64. The reason of the 
 lule is that it would produce endless confusion and embarrassment 
 in the administration of justice to permit single causes of action and 
 iudgmcnts to he split up so that dillcrcnt parts thereof could be in 
 litigation in dilTcrent courts at the same time. We do not think this 
 case is ^vithin the reason of the rule. Although there is no separa- 
 tion of causes of action, either in the complaint or in the judgment, 
 there are manifestly two such causes if we are right in holding that 
 there is a distinction between intrastate shipments and interstate 
 shipments. They are easily separable. The result of our decision is 
 that the plaintiffs are entitled to recover upon one and not upon tlie 
 other. In these circumstances it is l)Oth logical and just to make an 
 end to the litigation by directing that the judgment shall be_ reduced 
 to $64.45, and as thus'modified affirmed, without costs of this appeal 
 to either party. -^ 
 
 Judgment accordingly. 
 
 CROW V. WILLIAMS 
 Court of Appeals of Missouri, St. Louis, 1904 
 
 104 Mo. App. 451 
 
 Reyburn, J.: This, an action of forcible entry and detainer, 
 was begun February, 1903, before a justice of the peace in Newton 
 County, and from jury trial and judgment in favor of complain- 
 ants, defendants appealed to the circuit court, where, upon trial 
 anew, a jury returned a verdict of guilty against all the defendants 
 with damages assessed at $90; the complaint appears to have been 
 devoid of claim for any rents or profits. After unsuccessful motions 
 for new trial and in arrest, defendants have appealed to this court.-^ 
 
 -'Accord- Rcymcr v. Gnmstone, Moore 708 (i595) ; Grymston v. Rcyncr, 
 Cro Eliz. 537; Miles v. Jacob, Hob. 6 (Temp. Jac. I); Bcllew v. Aylmer, 
 1 Str i8q (1718); Henriqucs v. Dutch West-India Co., 2 Str. 807 (1729); 
 Kent v Kent, 2 Str. 971 (1733); Frederick v. Lookup, 4 Burr. 2018, 2021 
 (1767) ; Wood V. Talhnan, I N. J. L. 177 (i793) ; Smith v. Jansen, 8 Johns. 
 (X. Y) III (1811); Dcfarges v. Lipscomb, 2 Munf. (Va.) 451 (iSn) ; 
 Cummings V. Pruden, II Mass. 206 (1814) ; Commonvjealth v. Derby, 13 Mass. 
 433 (1816) ; culler v. Kecnc. q Watts (Pa.) 348 (1S36) ; Scterwhite v. Carson, 
 25 X Car. 549 (1843) ; Eames v. Stevens, 26 X. H. 117 (1852) ; Jeter v. Jeter, 
 36 Ala 391 (i860) ; Pratt v. Wallbridge, 16 Ind. 147 (1861) ; Selleck v. Rusco, 
 46 Conn. 370 (1878) ; Schuster v. Bauman J. Co., 79 Tex. 179, 15 S. W. 259, 
 23 Am St 327 (1890) ; Domestic B. Assn. v. Kelson, 172 111. 386, 50 X. L. 194 
 (1S98) ; rT ^fr- V. Stc-vart. ^2 Pa. Super. Ct. ^ 8=; (1907) ; Robinson v. Minr, 
 151 Cal 7T5r90 Pac. 521 (1907) ; Gray v. Raikcay Co., 81 S. Car. 370, 62 S. t. 
 442 (1908) ; People v. Banhagel, 151 Mich. 40, 114 N. W. 669 (1908) ; Emmons 
 V Hau.'k, 62 W. Va. 526, 59 S. E. 519 (1908) ; Au.^tin v. Langlois, 83 \t. 104, 
 74 Atl. 489 (1909); Gray v. Cotton, 166 Cal. 130, 134 Pac. 1145 (1913) ; 
 Camden v. McAndrews, 8'-, X. J. L. 260, 88 Atl. 1034 (1913) ; Ainvarter v. 
 Kroll, 79 Wash. 179, 140 Pac. 326 (1914) ; Seevers v. Cleveland Coal Co., 
 166 lov.a 284, 147 ^>'- W. 761 (1914)- 
 
 '^The argument of counsel and part of the opinion arc omitted.
 
 CROW V. WILLIAMS 
 
 91; 
 
 The judgment rendered is assailed as embracing, additional to 
 decree of restitution of the lands, described in the complaint, a gen- 
 eral judgment for the amount of damages assessed by the jury, 
 doubled and made a general judgment as well as against all the de- 
 fendants and also their two sureties on the appeal bond filed in per- 
 fecting appeal to the circuit court. In the absence of statutory 
 authority a summary judgment against sureties as well as principals 
 on the appeal bond in an action of this character can not be main- 
 tained. Hadley v. Bernero, 97 Mo. App, 314; Julett v. Nugent, 71 
 Mo. 131 ; Keary v. Baker, 33 Mo. 603. Nor is there any evidence 
 warranting a judgment against Williams, the owner and lessor of 
 all parties; the record is barren of any evidence tending to connect 
 him with the acts of his codefendants, either in dispossession of 
 complainants or in usurping possession, and the judgm.ent was also 
 erroneous as to him. Orrick v. Public School, 32 Mo. 315. The rule 
 of law that a judgment in an action at law was an entirety and that 
 if it was vacated as to one must be annulled as to all the parties de- 
 fendant against whom it was rendered, v/as adopted by numerous of 
 the early decisions of the Supreme Court.^° This rule, however, has 
 been relaxed and from the later decisions may be deduced the pres- 
 ent doctrine that a judgment is not now regarded as such an entirety 
 as to prohibit amendment or correction by reversal as to one or more 
 of the parties, where the substantial rights of the other parties 
 thereto will not be thereby impaired. Neenam v. St. Joseph, 126 
 Mo. 89; Hadley v. Bernero, 97 Mo. App. 314; Patterson v. Yancey, 
 97 Mo. App. 681 ; Christopher & Simpson Architectural Iron &c. 
 Co. V. Kelly, 91 Mo. App. 93. 
 
 The judgment herein is therefore affirmed as to defendants 
 Marion F. Brown and E. R. Hyatt, and reversed as to defendant L. 
 F. Williams and the sureties P. L, Schwartz and L. H. Ornduff.^^ 
 
 '"Accord: Roll. Abr. 776; Bac. Abr., Error (m) ; Bird v. Orms, Cro. Jac. 
 289 (1611) ; King v. Marlborough, Cro. Jac. 303 (1612) ; Aylet v. Oates, 
 Style 121, 125 (1648) ; Anon., Style 406 (1654) ; Arnold, Duncan & Others 
 V. Sandford, 14 Johns. (N. Y.) 417 (1817) ; Criiikshank v. Gardner, 2 Hill 
 (X- Y.) 333 (1842); Sheldon v. Quinlen, 5 Hill (N. Y.) 441 (1843); Van 
 Schoonhoven v. Comstock, i Denio (N. Y.) 655 (1845) ; Wilson v. Moore, 26 
 N. J. L. 458 (1857) ; Dickerson v. Chrisman, 28 Mo. 134 (1859) ; Pomeroy V. 
 Betts, 31 Mo. 419 (1862) ; Buffum v. Ramsdell, 55 Maine 252, 92 Am. Dec. 589 
 (1867) ; Gargan v. School Dist. No. 15, 4 Colo. 53 (1877) ; Seymour v. O. S. 
 liichardson Fueling Co., 205 111. yj, 68 N. E. 716 (1903) ; Kris v. Peege, 119 
 Wis. 105, 95 N. W. 108 (1903) ; Peterson v. Middlesex Tr. Co., yi N. J. L. 296, 
 59 Atl. 456 (1904) ; Massey v. Oates, 143 Ala. 248, 39 So. 142 (1904) ; North 
 Chicago Street R. Co. v. O'Donnell, 115 111. App. no (1904) ; East Baltimore 
 Lumber Co. v. Israel Congregation, 100 Md. 689, 62 Atl. 575 (1905) ; Goldberg 
 V. Harney, 122 111. App. 106 (1905) ; Peter Vallev v. Illinois Tunnel Co., lyS 
 111. App. 388 (1913) ; Walters v. B. & O. R. Co., 120 Md. 644, 88 Atl. 47 
 (1913) ; Pressley v. Kinloch-Bloomington Tel. Co., 184 111. App. 113 (1913) ; 
 Ewing v. Rider, 125 Md. 149, 93 Atl. 409 (1915). 
 
 "A judgment clearly entire must be affirmed or reversed as to all. But 
 the influence of modern statutes has led to a more liberal practice in revers- 
 ing as to one or more parties and affirming as to the rest, where the error 
 exists as to a separate claim or defense upon which a decision can be made 
 without injuriously affecting the rights of others. Jamieson v. Pomeroy, 
 
 58— Civ. Prog.
 
 914 ArrKAL AND ERROR 
 
 ST. JOHN V. ANDREWS INSTITUTE 
 
 Court of Arri:ALS of New York, 190S 
 192 A^. Y. 382 
 
 Alotion to amend remittitur. ^- 
 
 CuLLEX, C. J. : The question i^rcsented by this motion is 
 whether certain of the next of kin of the testator who failed to ap- 
 peal from the judgment of the Supreme Court, which declared that 
 they had no right to any part of the estate of said testator, can, take 
 advantage of a reversal of said decree by this court made upon the 
 appeal of certain other of the next of kin.^^ 
 
 The rule is stated by ]Mr. Freeman in his work of Judgments 
 (vol. 2, sec. 481) : "Where a judgment is against two or more per- 
 sons, one only of whom appeals, its reversal, if the judgment was 
 binding upon the defendants jointly, or if all must co-operate in 
 complying with the judgment, affects the parties who did not appeal 
 to the same extent as those who did. Pittsburg, etc., Ry. Co. v. 
 Reno, 123 111. 273. But if a defendant does not appeal, and is not 
 made a party to the appeal by the service on him of notice thereof, 
 an appeal by his co-defendant, followed by a reversal of the judg- 
 ment, can not authorize the retrial of the cause as against the non- 
 appealing defendant, and the new trial must be confined to the is- 
 sues between the parties to the appeal." Minturn v. Baylis, 33 Cal. 
 129, 134; Nichols V. Dicnphy, 58 Cal. 605; Little v. Superior Court, 
 74 Cal. 219; Withers v. Jacks, 79 Cal. 297.^* So a joint judgment 
 such as that rendered against partners or against joint obligors can 
 not be affirmed as to one defendant and reversed as to another, but 
 
 g Pa. 230 (1848), see Pa. Act of May 20, 1891, _P . L. loi, § 2, 1 P. & L. Dig. 
 (2d ed.) 322; McCanna v. Johnson. 10 Pa. St. 434 (1852) ; Sppp \. ll'in±enny, 
 6S_Ea— St. 78 (1871); Kobinson v. Buck, 71 Pa. St. ,386_( 18721 1 Reugler v. 
 Lilly, 26 Ohio St. 48 (1875) ; Cook v. Ligon, 54 Miss. 368 (1877) ; Sutton v. 
 McCoimcU, 46 Wis. 269, 50 N. W. 414 (1879) ; Ailing v. Wcnacll, 35 111. App. 
 246 (1890), equity; Hamilton V. Prescott, 73 Tex. 565, 1 1 S. W. 548 (1889) ; 
 Walk er v. Tufpcr,i~,2 Pa. St. i. 2^ Atl. 172 (1892) ; Garr v. Shaffer, 139 Ind. 
 191, 38 N. E. 811 (1894) ; Vance Shoe Co. v. Haiight, 41 W. Va. 275, 23 S. E. 
 553 (1895), equity; Louisville, N. A. & C. R. Co. v. Trcadzvay, 143 Ind. 689, 
 40 N. E. 807, 41 N. E. 794 (1895) ; Western Cornice & Mfg. Co. v. Leaven- 
 worth, 52 Nebr. 418, 72 N. W. 592 (1897) ; Altman v. Hofeller, 152 N. Y. 498, 
 46 N. E. 961 (1897) ; Missouri K. & T. R. Co. v. Enos, 92 Tex. 577, 50 S. W. 
 928 (1899) ; Louisville-Southern R. Co. v. Tucker, 105 Ky. 402, 49 S. W. 314, 
 20 Kv. L. 1303 (1899) ; Clark v. Torchiana, 19 Cal. 786, 127 Pac. 831 (1912) ; 
 Moe'rsdorf v. A^. Y. Telephone Co., 84 N. J. L. 747, 87 Atl. 473 (1913) ; 
 N. J. Practice Act of 1912; Chicago B. & M. Co. v. Butler, 139 Ga. 816, 78 
 S. E. 244 (1913) ; Voves v. Great Northern Co., 26 N. Dak. no, 143 N. W. 
 760 (1913) ; North Alabama Tr. Co. v. Hays, 184 Ala. 592, 64 So. 39 (1913) ; 
 Kansas C. M. R. Co. v. Cave (Tex. Civ. App.), 174 S. W. 872 (1915) ; Brown 
 V. Sessler, 128 Tenn. 665, 163 S. W. 812 (1914)- See also note to Sparrow v. 
 Bromage, 83 Conn. 27, 74 Atl. 1070 (1910), in 19 Ann. Cas. 797. 
 
 "Parts only of the opinion of the court and of the dissenting opinion are 
 printed. 
 
 "Lambert v. Westchester Electric R. Co., 191 N. Y. 252. 
 
 *'But compare Tillett v. Lynchburg & D. R. Co., 115 N. Car. 662, 20 S. E. 
 480 (1894) • Hall V. Calhoun Circuit Judge, 123 Mich. 555, 82 N. W. 229 
 (1900}.
 
 ST. JOHN V. ANDREWS INSTITUTE 915 
 
 must be reversed in its entirety except so far as the rule is modified 
 by statute (i Black on Judgments, section 211, et seq.), and this 
 rule is applicable to a judgment in equity as well as to one in an ac- 
 tion at law. AlUnan v. Hofeller, 152 N. Y. 498. But the question 
 remains, and this is the only substantial question in the case, was the 
 judgment rendered by the special term, and from which no appeal 
 was taken by certain of the defendants, a joint judgment or a several 
 judgm.ent. For even in an action at law against several joint tort 
 feasors the liability of the defendants being several, though in form 
 a single judgment may be entered against them all, the judgment 
 may be reversed on appeal as to one defendant and affirmed as to 
 the other. Hubhcll v. Meigs, 50 N. Y. 480. See Mcintosh v. En- 
 sign, 28 N. Y. 169 ; Bullis v. Montgomery, 50 N. Y. 352."^ 
 
 Up to this point I understand my brother Chase and myself to 
 be in accord. Our difference is whether the judgment is a joint or 
 a several judgment. Here I may dispose of the suggestion that the 
 judgment is against a class. There is no authority for suing a class 
 as such as distinguished from the individuals composing that class, 
 except that given by section 448 of the Code of Civil Procedure, 
 where the parties of a class are too numerous to render it practicable 
 to join them all as parties to the action, one or more may be selected 
 as representing the class. No such situation existed in the present 
 case, nor was there any attempt to sue one defendant as represent- 
 ing the others, but each person in interest was made a party, that he 
 rnight defend or assert his rights in person and on his own behalf. 
 The argument of my brother seems to proceed on the theory that 
 because the issues on which the case was disposed of at the special 
 terrn were common to all the defendants, the next of kin, therefore, 
 the judgment against them v/as necessarily joint. I think the ques- 
 tion of the identity of issue between the several parties has no nec- 
 essary bearing on the question whether the judgment is joint or sev- 
 eral. The distinction between the interest in a question and interest 
 in a particular judgment is well illustrated by tlie rule which dis- 
 qualifies judges from hearing causes. A judge can not sit in the hear- 
 ing of an appeal from a judgment in an action in which he is inter- 
 ested or he is related to the parties within the specified degree, and 
 the judgment rendered by a court in which such disqualified judge 
 takes part is a nullity, Oakley v. Aspimvall, 3 N. Y. 547, but on 
 the other hand, interest of the judge in the question involved in the 
 case has no effect on his qualification to sit and determine it. People 
 V. Edmunds, 15 Barb. (N. Y.) 529. Another illustration is the case 
 of a judgment against two tort feasors. The issue on M'hich the par- 
 ties have been held liable may be identical and the ground on which 
 the judgment has been reversed may be as fatal to the recovery 
 
 "Accord: Nichols v. Dtmphy, 58 Cal. 605 (1881); Union Trust Co. v. 
 Atchison, T. & S. F. R. Co., 8 N. Mex. 159, 42 Pac. 89 (1895) ; Schidis v. 
 United States Fidelity Co., 201 N. Y. 230, 94 N. E. 601 (1911). Contra: 
 Mohr V. McKenaie, 60 111. App. 575 (1895) ; Massey v. Oates, 143 Ala. 248, 39 
 So. 142 (1904) ; South Side E. R. Co. v. Ne'vig, 214 111. 463, yz N. E 749 
 (1905) ; Pecos & N. T. R. Co. v. Holmes ( x. Civ. App.), 177 S W 505 
 (1915).
 
 Ql6 ArPF.AT, AND KRRCR 
 
 ajjainst one defendant as against the other, yet, as already staled, a 
 reversal against one will inure in no respeet against the other. Such 
 was the case of Gcraud v. Stagg, lo How. I'r. (N. Y.) 369. The 
 action was for libel against two defendants. From a judgment in 
 favor of the plaintiff only one defendant ajipcalcd. The judgment 
 was reversed on the ground that the plaintiffs own evidence did not 
 show a cause of action. The order entered by the general term of the 
 connnon pleas reversed the judgment as to the a])i)caling defendant 
 only. A motion was thereupon made to amend the order so as to 
 reverse the entire judgment. The motion was denied in an opinion 
 written by an eminent judge. Woodruff, afterwards a judge of this 
 court. AVhat then does determine the question whether the judg- 
 ment in this action was joint or several? Had the cause been deter- 
 mined at the special term in accordance with the view subsequently 
 held by this court there would have been awarded to the several next 
 of kin' their proportionate shares under the statute of distribution of 
 the rents and profits which accumulated between the death of the de- 
 ceased and the incorporation of the defendant, the Andrews Insti- 
 tute, and such will be the nature of the judgment entered on the 
 remittitur from this court. The interest of each of the next of kin 
 in the accumulated rents was several, belonging solely to himself 
 and subject at all times to assignment by him, to seizure through a 
 court of equity by his creditors. The interest of the next of kin in 
 undisposed of personalty in no w^ay differs from the interest of the 
 heirs at law in undisposed of realty. They are not joint tenants, but 
 tenants in common, and the action or litigation of one can not con- 
 clude or affect the rights of the others. In the share of each of the 
 next of kin the others had no interest. Pelly v. Bowyer, 7 Bush 
 (Ky.) 513. Therefore, the judgment against the interest of each 
 was several. Had such judgment in the first instance been in favor 
 of the next of kin and the Andrews Institute had appealed from it, 
 we could have reversed that judgment only so far as it made the de- 
 fendants parties to that appeal. McCammon v. Worrall, 11 Paige 
 Ch. (N. Y.) 99; Tate v. Liggat, 2 Leigh (Va.) 84, 108; Fasker v. 
 Small, I C. P. Cooper 225. See also. South Portland Land Co. v. 
 Munger, 30 Ore. 457; Todd v. Daniel, 16 Pet. (U. S.) 521 ; French 
 v. Pozvers, 177 ]\Iass. 568. Had it seen fit to serve its notice of ap- 
 peal solely on the four defendants who have appealed to this court, 
 the court could not have reversed the judgment of the special term 
 in favor of the two defendants who were not made parties to the 
 appeal. I am at a loss to see why the principle must not necessarily 
 be the same in both cases. The great stumbling block in this case 
 seems to be the apparent, if not real, incongruity of the result ar- 
 rived at ; that is to say, that a distribution will be made in favor of 
 four of a certain class of defendants, which is denied to two others 
 of the class, whose rights are exactly the same. For this incongruity, 
 however, this court is not responsible. It is occasioned by the vol- 
 untary action of the two nonappealing defendants themselves. They 
 acquiesced in the decision of the special term, erroneous though it 
 was, and it is that and that alone that causes the incongruity. 
 The motion should be granted.
 
 ST. JOHN V. ANDREWS INSTITUTE 917 
 
 Chase, J. (dissenting) : This motion is made to amend the 
 remittitur of this court so as to deny to said next of kin who did not 
 appeal the riglit to partake in the division of the income upon the 
 fund in the hands of the plaintiff which accrued between the time 
 when the testator died and the organization of the Andrews Institute 
 for Girls, It is made in behalf of said Andrews Institute for Girls 
 to whom said income was directed to be paid by the judgment 
 entered at the special term. 
 
 If the modification of the judgment directed by us does not 
 apply to all of the next of kin it will result in inconsistent judg- 
 ments upon the same issue and the court will instruct the plaintiff 
 as executor and trustee to distribute the income of the estate for the 
 time mentioned to a part of a class and withhold the shares from 
 the others of said class, not pursuant to any possible construction of 
 the will or in accordance with the judgment of the court based upon 
 the duty of the executor and trustee, but pursuant to the claimed 
 rights of the parties growing out of the practice in connection with 
 the appeal. The appeal taken from the judgment was general and 
 no question relating to the identity of the next of kin is involved. 
 
 I am of the opinion that the reversal of the judgment in part, 
 as stated in the opinion previously filed herein, inures to the benefit 
 of the next of kin as a class. 
 
 Werner, Willard, Bartlett and HIscock, JJ., concur with Cullen, 
 Ch. J. ; Gray and Haight, JJ., concur with Chase, J, 
 
 Ordered accordingly.^^ 
 
 ''Where one of several parties appeals and secures a reversal it is gen- 
 erally said that this does not disturb the judgment against his co-party unless 
 the judgment or decree below is an entirety that can only be disposed of by 
 a total reversal. In the application of the rule the cases are not consistent. 
 See, where the reversal was as to the appellant alone. Lanahan v. Latrohe, 7 
 Md. 268 (1854) ; Hozvard v. Jl'aggamann, 28 La. 99 (1876) ; Anncly v. De 
 Sanssiire, 12 S. Car. 488 (1879) ; Donovan v. Driscoll, 12 W. N. Cas. (Pa.) 
 203 (1882) ; Solinsky v. Lincoln, S. Bk., 85 Nebr. 36S, 4 S. W. 836 (1886) ; 
 Michener v. Bengel, 135 Ind. 188, 34 N. E. 664, 816 (1893) ; Littell v. Miller, 
 8 Wash. 566, 36 Pac. 492 (1894) ; Nezi'hiirgh S. Bk. v. Woodhiiry, 64 App. 
 Div. 305, 72 N. Y. S. 222 (1901) ; Boivlby v. DeWit, 47 W. Va. 323, 34 S. E. 
 919 (1899) ; Merchants Nat. Bank v. Stebhins, 15 S. Dak. 280, 89 N. W. 674 
 (1901) ; Moore v. Price, loi Ark. 142, 141 S. W. 501 (1911) ; State v. Dayton 
 L. Co. (Tex. Civ. App.), 164 S. W. 48 (1914), and compare, where the judg- 
 ment was held an entirety, Wilson v. Moore, 26 N. J. L. 458 (1857) ; Wood 
 V. Cullen, 13 111. (Gil. 365) 394 (1868) ; Huckabee v. Nelson, 54 Ala. 12 
 (1875) ; Murphy v. O'Reilcy, 78 Ky. 263 (1880) ; Bradford v. Taylor, 64 Tex. 
 169 (1885) ; Bradford v. Bennett, 48 111. App. 145 (1891) ; Hall v. Calhoun 
 Circuit Judge, 123 Mich. 555, 82 N. W. 229 (1900); Schoenbcrger v. White, 
 75 Conn. 605, 54 Atl. 882 (1903) ; Lesh v. Davison, 181 Ind. 429, 104 N. E. 642 
 (1914) ; Rozvcll V. Ross, 89 Conn. 201, 93 Atl. 236 (1915). In Washington, by 
 statute, a party who does not join in an appeal or prosecute an independent 
 anpeal shall derive no benefit from an appeal by another unless from necessity. 
 Morgan v. Williams, "jy Wash. 343, 137 Pac. 476 (1914).
 
 918 Arrr.AL and error 
 
 GARR V. GOMEZ 
 
 Court of Errors of New York, 1832 
 
 9 ll'cnd. (N- y-) 649 
 
 Error from the Supreme Court. 
 
 Gomez, the plaintilt below, sued Garr, his declaration consist- 
 ing of three counts. The defendant pleaded non assumpsit and four 
 special pleas to which the plaintifl" demurred. On the trial under 
 the general issue general damages were assessed upon all three 
 counts and on the demurrer judgment was given for the plaintiff. 
 The court of errors adjudged that the fourth special plea was a 
 sufficient bar to the action as to the second and third counts, but that 
 a venire de novo should be awarded to ascertain the damages on the 
 first count, the pleas to v\-hich v/ere bad.^" 
 
 The counsel for the plaintiff in error, I. L. Wendell, prayed to 
 be heard on the question of the av/ard of a venire de novo before 
 the court pronounced judgment, and he was indulged. He insisted, 
 with all deference to tlie intimations in the opinions which had been 
 read, that in a case like the present, the plaintiff below was not en- 
 titled to a venire de novo. That the rule is, where judgment is given 
 in the court below against tlie defendant and he brings a writ of 
 error, the judgment in the court of error, if given for him, is quod 
 judicium reversitur; but if the judgment in the court below were 
 given against the plaintiff and he bring a writ of error and succeed, 
 the judgment below is not only reversed, but the court of error gives 
 such judgment as the court belov,' ought to have given, and cited i 
 Archbold's Pr. tit. Writ of Error (Judgment) and the cases there 
 collected. He contended that on the reversal of a judgment, a 
 venire de novo was awarded only in one of the following cases: 
 I. Where the plaintiff brought error; 2. When there was a special 
 verdict; 3. An imperfect verdict; 4. Demurrer to evidence; and 
 5. A bill of exceptions. And he cited the following cases as in- 
 stances to support this position : 3 T. R. 27 ; Cowp. 89, 91 ; 2 Str. 
 1051, 1 124; I T. R. 34 and 783; 2 T. R. 53 and 125; 5 T. R. 367; 
 I Wend. (N. Y.) 64; 5 Wend. (N. Y.) 341 ; 6 Wend. (N. Y.) 173. 
 He insisted that not a case was to be found in the English reports, 
 where a venire de novo had been awarded on the reversal of a judg- 
 ment where entire damages had been given on separate counts, some 
 good and some bad, except the case of Grant v. Astle, Doug. 722, de- 
 cided in 1 78 1, which case was condemned by counsel in i T. R. 528, 
 as not warranted by the old authorities ; and Duller, J., upon whose 
 suggestion the order was made in Grant v. Astle, afterward, in 1789, 
 in Hancock v. Haywood, 3 T. R. 435, in the most unqualified terms 
 admits, that on a writ of error where one count appears bad and the 
 
 *'Only so much of the case as relates to the reversal of judgment is given, 
 beginning page C73 of the report. The formal judgment and part of th& 
 opinion of Nelson, J., are omitted.
 
 GARR v. GOMEZ 919 
 
 verdict is entered generally on all the counts, the court must reverse 
 the judgment in toto, since they can not see on which of the counts 
 tlie damages were given. Besides, the case of Grant v. Astle comes 
 within one of the exceptions, in which it is admitted that it is ac- 
 cording to the practice of the court to av/ard a venire de novo, for 
 that was a verdict subject to the opinion of tlie court on a case re- 
 served, and therefore in substance a special verdict. 
 
 Walworth, Ch. : In some of the early cases it is said, if the de- 
 fendant brings a writ of error, and the judgment against him is re- 
 versed, the appellate court can not award a venire de novo, or give 
 any other judgment than a mere judgment of reversal, leaving the 
 plaintiff in the court below to seek his remedy by a new suit. See 
 Parker v. Harris, i Salk. 262;"^ Steele v. Hopkinson, 2 Str. 1055; 
 Cummlng v. Sibley, 4 Burr. 2489. This, however, can not be 
 considered as the law at the present day ; for it has frequently been 
 decided, both here and in England, that upon a writ of error, 
 whether the same is prosecuted by the plaintiff or the defendant in 
 the court below, tlie court of errors upon a reversal of the judg- 
 ment may proceed and give such judgment as the court below ought 
 to have given; and may award a venire de novo, if necessary for 
 the attainment of justice. When a judgment is reversed in this 
 court, or in the exchequer chamber, or tlie house of lords in Eng- 
 land, the practice is to direct the venire de novo to be awarded in 
 the court below. See Livingston v. Rogers, 1 Caines (N. Y.) 586. 
 
 In tlie case of Shrewsbury v. Kynerston, 7 Bro. P. C. (Toml. ed.) 
 396, the writ of error was prosecuted by the defendant in the court 
 below, and the judgment was reversed, for a defect in the verdict 
 on which the judgment was rendered, iDut the house of lords being 
 against the plaintiff in error on the merits of the case, directed a 
 venire de novo to be awarded in the Court of King's Bench. A sim- 
 ilar decision was made in the case of Haszvell v. Challie, 2 Str. 1125, 
 upon the reversal of a judgment of the King's Bench upon a writ 
 of error prosecuted by tlie defendant in the court below. In Green 
 v. Bailey, 5 Munf. (Va.) 246, the court of appeals in Virginia, upon 
 
 ^^Parker v. Harris, King's Bench 1692, i Salk. 262 per cur.: "Where 
 judgrment is given for the plaintiff, and the defendant brings error, there 
 shall only be judgment to reverse the former judgment, for the suit is only 
 to be eased and discharged of that judgment. But where the plaintiff brings 
 error, the judgment shall not only be a reversal, but the court shall also 
 give such judgments as the court below^ should have given; for his writ 
 of error is to revive the first cause of action, and to recover what he ought 
 to have recovered by the first suit wherein erroneous judgment was given." 
 Bac. Abr., Error (m) 2; Faldowe v. Ridge, Cro. Jac. 206 (1608) ; Szvearinac n 
 V. Prncllrtnn^ /\ .Sprg. Br ]^ (Pa.) 389 (1818) ; Atkinson v. FortinhcrryT 
 7 Sm. & M. (Miss.) 302 (1846); Robinson v. Robinson, 5 Harr. (Del.) 8 
 (1848). On error in the King's Bench the court could award a writ of inquiry 
 to assess damages and upon the return of the inquest give final judgment. 
 2 Saund. loi, I; i Arch. Vr. (7th ed.) 376; 2 Tidd's Pr. (9th ed.) (1180). 
 It was, at length, finally settled that a court of error could award a venire 
 facias de novo. Kynaston v. Shrewsbury, 2 Str. 1051 (1722) ; Parker v. Wells, 
 
 1 p. & E. 783, 18 Ch. Div. 477 (1787) ; Davies v. Pierce, 2 T. R. 125 (1787) ; 
 Lickharrow v. Mason, 2 H. Bl. 211 (1793). Contra: Street v. Hopkinson, 
 
 2 Str. 1055 i'^J^Z), and contra on error from inferior local courts. Trevor V. 
 Wall, I D. & E. 151 (1786) ; Bishop v. Kaye, 3 B. & Aid. 605 (1820).
 
 OJO ArPEAT. AND ERROR 
 
 error brourjlit hy the dofcinlanl, not only reversed the jiulj^ment, but 
 also procoecled to give such judi^inent as the court below ought to 
 have given, by awarding a repleader. So in tlie case of Gardner v. 
 J 'idol, 6 Rand. (\'a.) io6, upon a writ of error brought by the 
 defendant, the judgment was reversed on account of a defective 
 linding of the jury, and a venire de novo was directed to be 
 awarded. And in the case of JJ'ard v. Johnson, i Munf. (Va.) 45, a 
 judgment of the circuit court was reversed by the court of appeals 
 because the circuit court, upon a writ of error brought by the de- 
 fendant, had reversed a judgment, but had not proceeded to give 
 such judgment_ in favor of the plaintiff in the court below as ought 
 to have been given there. Similar decisions have been made in sev- 
 eral otlier of our sister states. See Commonwealth v. Howard, 13 
 Alass. 221 ; Davenport v. Bradley, 4 Conn. 311. 
 
 In the case of the King v. Amery, 1 Anst. 183, the house of 
 lords propounded the question to the judges, whether if the judg- 
 ment of tlie court below be reversed on error, the appellate court 
 must give the same judgment as the court below ought to have 
 given? And upon this question, which was general, and applied to 
 a writ of error brought by the defendant in tlie court below, as well 
 as to a writ of error prosecuted by plaintiff, Chief Justice Eyre de- 
 livered the unanimous answer of the judges in the affirmative. So 
 in Gildart v. Gladstone, 12 East 668, where the common pleas 
 had given judgment for tlie plaintiff on a special verdict, the Court 
 of King's Bench, upon a writ of error, reversed the decision of the 
 common pleas. The question then arose whether the plaintiff in 
 error was entitled to a mere judgment of reversal, or whether he 
 should have a judgment in his favor upon the verdict, together with 
 the costs of his defense in the court below, and upon argument the 
 Court of King's Bench decided that he was entitled to such a judg- 
 ment as the court of common pleas ought to have given, which of 
 course included the costs of his defense in that court. In Grant v. 
 Astle, 2 Doug. 731, entire damages were given upon a declaration 
 consisting of several counts, some of which were good and others 
 defective, and the judgment was for this reason reversed; but the 
 Court of King's Bench held it was a proper case for venire de novo 
 to assess the damages on the counts which were good. And in the 
 case of Shaffer Y. Kintr.er^ t Bin, (Pa.^^6, which was also a case 
 of generaf damages, where some of the counts of the plaintiff's 
 declaration were bad, Tilghman, Ch. J., said the case of Grant v. 
 Astle, was good law and good sense, and that he was willing to 
 abide by it; a venire de novo was awarded accordingly, in confor- 
 mity to that decision. In the case of Flower v. Allen, in this court, 
 5 Cow. (N. Y.) 668, Spencer, senator, refers to the same case, 
 as well as to other English decisions, as establishing the principle 
 that whenever a judgment is reversed upon some ground which does 
 not involve the merits of the cause, a venire de novo is awarded of 
 course to try those merits. And it appears by the report of the case 
 of Richardson v. Mellish, 3 Bing. 346, that the Court of King's 
 Bench had again followed the decision in Grant v. Astle, by awarding
 
 GARR V. GOME^ 92I 
 
 a venire de novo upon the reversal of a judgment, because some of 
 the counts were defective, and general damages had been assessed. 
 So in the recent case of Benius v. Beekman, in this court, 3 Wend. 
 (N. Y.) 676, where the judgment was reversed, on account of a 
 defective finding of the jury as to some of the issues, a venire de 
 novo was awarded, although the writ of error was brought by the 
 defendant in the court below. 
 
 I have no doubt, therefore, that this court ought to authorize 
 the issuing of a venire de novo to try the issue, and to assess the 
 plaintiff's damages on the first count of his declaration ; as it was his 
 own fault that the issue was tried before the judgment was given on 
 the demurrer to the several pleas, he should not be permitted to 
 have an award of such venire, except upon the terms of paying the 
 costs of the formal trial. 
 
 Nelson, J. : It is laid down in the books, and supported by ad- 
 judged cases, that if judgment be given against a defendant, and he 
 brings a writ of error, upon which the judgment below is reversed, 
 the judgment shall only be quod judicium reversitur, and the reason 
 given is, that the writ of error is brought by the defendant merely 
 to be discharged of the judgment below. Bacon's Abr. tit. Error, 
 503. This as a general proposition may be correct, and is founded 
 upon the idea or assumption that the whole merits of the case are 
 fully and finally determined by the decision in the court above, and 
 that the plaintiff below has no cause of action. In such a case, judg- 
 ment of reversal is the only action of the court necessary to a just 
 and definite settlement of the matters in litigation between the par- 
 ties, and the result is the same as if the court below had done what 
 they ought to have done, according to the decision of the court 
 above, viz., given judgment against the plaintiff on the merits. But 
 there are exceptions to this rule, if it may be called a general one, 
 which are as thoroughly settled as is the rule itself, and upon as 
 sound and conclusive reasons. Where the defendant brings the 
 writ of error, and the court above sees that the judgment is not 
 reversed upon the whole merits of the case of the plaintiff below, 
 but upon a formal or technical question not involving the substan- 
 tial ground of litigation, there the court order the court below to 
 award a venire de novo. The reason is obvious. The plaintiff is 
 entitled to the trial of his cause upon the merits ; it would Be a re- 
 proach to the administration of justice if he was not; and this can 
 be done with more convenience and less delay and expense to both 
 parties by awarding in the court below a venire de novo than by 
 bringing a new suit. Indeed, it might frequently happen that with- 
 out the continuance of the suit in the court to its final determina- 
 tion on the merits, the demand would be barred by the statute of 
 limitations. When the cause is again remitted to the court below, 
 the plaintiff may on application to it, or otherwise, disentangle his 
 case from the nets of form and technicality and obtain a trial upon 
 the merits. Whether the trial is had on the new venire ordered by 
 this court, or on one in a new suit, is wholly immaterial, so far as 
 the substantial rights or interests of the defendant are concerned.
 
 C)22 ArrF.AT: AXD EI^ROU 
 
 The difference may be very material as to those of the plaintiff, as 
 has already been shown. 
 
 If the judgment is given against the plaintiff below, and he 
 brings the writ of error, and the decision is in his favor, the judg- 
 ment shall not only be reversed, but the court shall give such a 
 judgment as the court below ought to have given, or order the award 
 of a venire de novo ; and the reason is that the judgment of the re- 
 versal revives the first cause of action. The right of the court to 
 order a venire in such a case is not questioned. The reason, how- 
 ever, is no stronger for the venire than in the case where the defend- 
 ant brings the writ of error and reverses the judgment below on 
 ground which docs not involve the plaintiff's cause of action.^* 
 
 Judgment accordingly. 
 
 :miller z'. elvlston 
 
 Supreme Court of Pennsylvania, 181.S 
 
 I Scrg. & R. (Pa.) 309 
 
 In error. 
 
 On the fourth of May, 1812, Ralston obtained a judginent be- 
 fore Richard Renshaw, Esq., an alderman of the city, against Miller, 
 and on the twelfth of the same month an appeal was entered to the 
 common pleas of Philadelphia County. 
 
 Browne and Grinnell, now showed for error that the promise 
 laid in the declaration was after the appeal w-as entered, to wit, on 
 the first of June, 1812. 
 
 Hopkins, for the defendants in error, said that the day was not 
 material. 
 
 By The Court: It appears by the record that the action was 
 brought before the debt was due, which is manifest error. The 
 judgment must therefore be reversed. 
 
 Mr. Hopkins then moved for a venire facias de novo, which 
 the court refused, because there was no error in the course of the 
 trial, but it appeared from the plaintiff's own averment that there 
 was no cause of action at the time the suit was commenced. 
 
 Judgment reversed.'^ 
 
 40 
 
 "'Accord: Shaffer v. Kintzer, i Binn. (E a.-) 537, 2 Am. Dec. 488 (1809) ; 
 Commonzcealth v. Howard, 13 Mass. 221 (1816) ; Davenport v. Bradley, 4 
 Conn. 309 (1822) ; Flozi-er v. Allen, 5 Cowen (N. Y.) 654 (1825) ; Thornton 
 V. IVynn, 12 Wheat. (U. S.) 183, 6 L. ed. 595 (1827) ; Gardner v. Vtdal, 6 
 Rand. (Va.) 106 (1828). And see Carr v. Stokes, 16 N. J. L. 493 (1838). 
 
 ^"Judgment Avill be rendered in the appellate court, or the cause remanded 
 for judgment below, without a new trial when upon ever>' view of the facts 
 it is clear that there is no cause of action, or tliat the defense can not 
 succeed, or where according to many cases, it clearly appears tinon a y'ew of 
 the undisputed facts that the result of a second trial will lead to no different 
 conclusions than to which the appellate court has already come. GrifitJi v. 
 E.'^ hlemav. -i Watts (Pa. ) =;i (1835) ; Van Dyke v. Van Dyke, 17 NTJ. L. 478 
 (1840) ; Waldo v. Moore, 33 Maine 511 (1851) ; Marqtiat v. Marqiiat, 12 N. Y.
 
 FIDELITY MUT. L. INS. CO. Z'. SECK 923 
 
 FIDELITY MUT. LIFE INS. CO. v. BECK 
 
 Supreme Court of Arkansas, 1907 
 84 Ark. 57 
 
 Mrs. Beck, the beneficiary, in a policy upon the life of her hus- 
 band, James W. Beck, brougiit suit against the appellant life insur- 
 ance company upon the same, and the trial resulted in the court di- 
 recting a verdict in favor of the plaintiff. The insurance com- 
 pany appealed and the Supreme Court, holding that the court erred in 
 giving a peremptory instruction, reversed the judgment and re- 
 manded the cause for further proceedings. The appellant moved 
 for a rehearing.*^ 
 
 Hill, C. J. : Appellant insists, in motion for rehearing, that 
 the judgment of the court should have been for a dismissal instead 
 of remanding for a new trial, because it alleges there was undis- 
 puted evidence of a breach of a warranty contained in the sixth 
 question and answer. 
 
 On the trial of the case in the lower court, there was a perempt- 
 ory direction to find for the plaintiff, and there v/ere two grounds 
 for a reversal presented here; one the ground mentioned in the 
 opinion, and the other ground the one now urged in the motion for 
 rehearing. 
 
 For reasons stated in the opinion, the direction for a peremptory 
 verdict was error. That is as far as the court went in disposing of 
 the appeal, and was as far as it was necessary or proper for the 
 court to go. It is true that where there is an affirmative showing 
 that there can be no recovery, and a new trial would only portract 
 litigation and occupy the time of the courts and increase costs, then 
 it is the duty of the court to dismiss the case, as was well pointed 
 out by Mr. Justice Hemingway in Pennington v. Underwood, 56 
 Ark. 53. The ordinary rule of practice on reversal is to remand 
 
 336 (1855) ; Storing v. Onlcy, 44 111. 123 (1867) ; Roberts v. Corbin, 28 Iowa 
 355 (1869) ; Murdoch v. Ganahl, 47 Mo. 135 (1S70) ; Stvift v. Agnes, 2,3 Wis. 
 228 (1873) ; Toledo &c. R. Co. v. Durkin, 76 111. 395 (1875) ; Brozvnsville v. 
 Basse, 43 Tex. 440 (1875) J Oregon R. Co. v. Bridtuell, 11 Ore. 282, 3 Pac. 684 
 (1883) ; Allen v. St. Louis Bank, 120 U. S. 20, 30 L. ed. 573, 7 Sup. Ct. 460 
 (1886) ; Webb v. Leominster Shirt Co., loi Mich. 136, 59 N. W. 397 (1894) ; 
 Bernhardt V. Brown, 118 N. Car. 700, 24 S. E. 527, 715, 36 L. R. A. 402 
 (1896) ; Minnear v. Holloxvay, 56 Ohio St. 148, 46 N. E. 636 (1897) ; Hurlburt 
 V. Strauh, 54 W. Va. 303, 46 S. E. 163 (1903) ; Miller v. Kern Co., 150 Cal. 
 797, 90 Pac. 119 (1907) ; Deloria v. Atkins, 158 Mich. 232, 122 N. W. 559 
 (1909) ; Elic V. Cowles, 82 Conn. 236, 73 Atl. 258 (1909) ; Knight v. ///. Cent. 
 R. Co., 180 Fed. 368 (1910) ; Warren v. Finn, 84 N. J. L. 206, 86 Atl. 530 
 (1913) ; Hanick v. Leader, 2 43 Pa. 372, 90 Atl. 146 (1914) ; Schenk v. Inter- 
 national R. to., 146 N. Y. S. 365 (1914) ; Peterson v. Ocean E. R. Co., 161 
 App. Div. 720, 146 N. Y. S. 604 (1914). Compare Slocum v. A''. Y. Life Ins. 
 Co., 228 U. S. 364, 57 L. ed. 879 (1912). 
 
 "The statement of facts is from the first opinion. Only the judgment on 
 motion for rehearing is printed.
 
 9^4 Arrr.AL and ]:kror 
 
 common-law cases for new trial unless there are exceptional rea- 
 sons, as above indicated, why there should be a dismissal. The court 
 docs not see that this case belongs to that exceptional class. While 
 it appears from the application in the transcript that the sixth 
 question was answered by the assured, and it also appears from the 
 testimony that it was not truly answered, yet the issue of fact 
 whether or not there was a breach of warranty in regard to it, like 
 the other issue disposed of in the opinion, has not been tried by the 
 lower court, as it refused to go into a trial of these issues, errone- 
 ously holding that no defense was offered, whereas the defenses 
 offered should have been tried, and tliat is w^hat is now directed. 
 That means, tried first by the lower court as to the sufficiency of the 
 evidence to go to the jury ; and, if the court should find it sufficient 
 to go to the jury, then by the jury to find the truth where there is a 
 conflict, or where there may be different conclusions drawn from 
 undisputed evidence. 
 
 There should be a trial of the real issues in the_ circuit court 
 before this court should exercise its power of dismissal. This is 
 especially true in this case, where the testimony on tliis trial does 
 not show that other evidence raising proper issues of fact may not 
 be adduced not inconsistent with the facts now in evidence. 
 
 ]\Iotion for rehearing is therefore denied.*- 
 
 *- "It is the duty of an appellate court to determine whether the circum- 
 stances of the case require that the Htipation shall be ended, or the case 
 shall be remanded for another trial upon the same issues, or for the exercise 
 of the discretion of the lower court in the further proceedings." Gadsden V. 
 Thrush, 72 Nebr. i, 99 N. W. 835 (1904). Usually, the court will order a new- 
 trial in the exercise of a sound discretion whenever it appears that the ends 
 of justice will be best subserved by such action. Wilder v. Greenlee, 49 111. 
 253 (1868); Buchannan v. Milliqan, 108 Ind. 433, 9 N. E. 385 (1886); 
 Houston &c. R. Co. v. Staie, 24 Tex. Civ. App. 117, 56 S. W. 228 (1900) ; 
 Bryan v. Straus, 157 Mich. 49, 121 N. W. 301 (1909)- In New York it is said: 
 "In order to justify an appellate court in rendering final judgment against 
 the respondent upon the reversal of a judgment, it is not sufficient that it is 
 improbable that the defeated party can succeed upon a new trial, but it must 
 appear that he certainly can not." New v. Nezv Rochelle, 158 N. Y. 41, 52 
 N. E. 647 (1899) ; Hoivells v. Hettrick, 160 N. Y. 308, 54 N. E. 677 (1899) ; 
 Panghurn v. Biiick Motor Co., 211 N. Y. 228, 105 N. E. 423 (1914)- See also, 
 Shotzi'cll V. Dennman, i N. J. L. 342 (i795) ; Keycs v. Stone, 5 Mass. 391 
 (1809); Uliar ton v. Williamson, 13 Pa. S t. 273 (1850); Little Sc huylk ill 
 Navigation R. & Coal Co. v. Norton. 2d Fa . St. 465, 64 Am. Dec. '672' CfSssT; 
 Curtis V. Brown County, 22 Wis. 167 (1867); Schroeder V. Gessellschaft, 
 60 Cal. 467 (1882) ; Latremouille v. Bennington & R. R. Co., 63 _Vt. 336, 22 
 Atl. 656 (1891); Couadeau v. American Accident Co. of Louisville, 95 Ky. 
 280, 25 S. W. 6, 15 Ky. L. 667 (1804) ; Bray v. Ford, L. R. (1896), A. C. 44, 
 L. J. 65 Q. B. 213, 72 L- T. 609; Ahrens v. Seattle, 39 Wash. 168, 81 Pac. 558 
 (1905); Shcvlin V. Shevlin, 96 Minn. 398, 105 N. W. 257 (1905); Buck v.. 
 M cKeesfort.^'^2 Pa ^ tt 72 Atl. 514 (1909) '. Boy v. Hartford & S. R. Co., 
 81 Conn. 578 (1909) ; Union Castle Mail Co. v. Thomsen, 190 Fed. 536 (1911) ; 
 Borough Bank of Brooklyn v. Lamphear, 154 App. Div. 177, 138 N. Y. S. 864 
 (1912); Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559 (1913); Quaker 
 Realty Co. v. Lahasse, 131 La. 996, 60 So. 661, Ann. Cas. 1914A, I073n (1913) ; 
 Penn'cll v. Phillips. ^^2 Pa Su per. Ct. ^:> a (1913) ; Mier v. Chicago Milwaukee 
 & St. Paul K. Co., 170 111. App. 321 (1913) ; Hani cky. Le ader J 243 Pa. 372,. 
 90 Atl. 146 (1914) ; Pray v. New York S. Bk., 2irJSI. Y. 32, 105 N. E. 412 
 (1914) ; Childress v. Lake Erie & W. R. Co., 182 Ind. 251, 105 N. E. 467 (1914)-
 
 SYMPSON, V. JUXON 925 
 
 SYMPSON V. JUXON 
 
 In the King's Bench, 1625 
 
 Cro. Jac. 699 
 
 Error of a judgment in Durham for the plaintiff. The judg- 
 ment being reversed in the King's Bench, a writ of restitution was 
 awarded, and to enquire what were the profits of the land recovered, 
 a tempore judicii praedicti, which was 7th August, 19 Jac. i, where- 
 upon the inquisition was returned, that they amounted to ten pounds. 
 Exception was taken to the writ ; for it ought not to have been what 
 the profits of the land amounted to from the judgment; for the 
 plaintiff is not to answer the profits longer than from the time of the 
 execution sued, which was long after. And so held all the court; 
 wherefore the writ was ruled to be ill. 
 
 The plaintiff in the writ of error had a new writ of restitution, 
 which vvas to enquire what profits of the land the plaintiff who re- 
 covered had taken colore judicii praedicti, which was 7th August, 
 19 Jac. I, and after the reversal thereof; which being returned, that 
 he took the profits of the land colore judicii praedicti before the 
 reversal thereof, to the value of ten pounds. 
 
 An exception was taken thereto by Sir Henry Yelverton and 
 Sergeant Damport, that this writ was not good ; for it ought to have 
 been v/hat profits he took after the execution sued, for that appears 
 of record to be long after the judgment. 
 
 But all the court held, that the writ was good enough; for the 
 plaintiff in the writ of error, after the reversal, is to be restored to 
 all that he lost, and what the plaintiff in the judgment by color 
 thereof had taken after the judgment; and that may be well, by 
 entry after the judgment (as in truth the case was affirmed to be) 
 in part, and yet after sue execution of the remainder; wherefore the 
 writ was well made; and so Broom, the Secondary, and the clerks 
 affirmed their precedents to be ; wherefore the writ was ordered to 
 be filed, and the plaintiff had execution of the damages found by 
 that writ. I, myself, was of counsel with the plaintiff in the writ of 
 error, by assignment in forma pauperis.^^ 
 
 *'Bac. Abr., Error (m) 3; Eyre v. Woodfine, Cro. Eliz. 278 (1591) ; 
 Wilkinson's Case, Cro. Eliz. 465 (1595) ; Goodyere v. Ince, Cro. Jac. 246 
 (1610) ; IVestcrne v. Creswick, 4 Mod. l6l (1692) ; Anonymous, 2 Salk. 588 
 (1706) ; LazeUe v. Miller, 15 Mass. 207 (1818) ; Rusell v. Gray, 6 Serg. & R. 
 (Pa.) 208 (1820) ; Scoit V. Conover, 10 N. J. L. 61 (1828). 
 
 In Miii-ray v. Emmons, 26 N. H. 523 (1853), it is said per Eastman, J.: 
 "When a judgment is reversed upon a writ of error, the party against whom 
 the judgment was rendered in the court below, must be restored to all that 
 he has lost by the erroneous judgment. If an execution has issued against 
 him, and has been extended upon his lands, he is entitled to his possession 
 and seisin, together with the mesne profits. If the execution has been satis- 
 fied by his goods or money, he is to have restitution of the defendant in 
 error in money." Stanard v. Brownlow, 3 Munf. (Va.) 229 (1812) ; Safford 
 V. Stevens, 2 Wend. (N. Y.) 158 (1828) ; Williams v. Simmons, 22 Ala. 425 
 (1853) ; Ratm v. Reynolds, 18 Cal. 275 (i86i) ; Dickensheets v. Kaufman,
 
 9 JO APPEAL AND ERROR 
 
 HAEBLER r. MYERS 
 
 Court of Appeals of New York, 1892 
 
 132 N. Y. 363 
 
 Appeal from judgment of the General Term of the Supreme 
 Court in the first judicial department, entered upon an order made 
 October 24, 1890, which affirmed a judgment in favor of defend- 
 ants entered upon a decision of the court on trial at special term. 
 
 This was an action for money had and received. 
 
 In April, 1SS8, the sheriff of the city and county of New York 
 received'the sum of $900 "by reason of" the levy of an attachment 
 which the plaintiffs had caused to be issued in an action brought by 
 them against one Bernharth and others. On October thirtieth, the 
 defendants, "as subsequent lienors," procured an order restraining 
 the sheriff from paying over to the plaintiffs the money so received 
 by him, and on November twent)^-second, they procured another 
 
 29 Ind. 154 (1S67); Buldt v. Garner, 31 Ohio St. 28 (1876); Gales v. 
 Brwkley, 4 Lea (Tenn.) 710 (1880); Boyett v. Vaughan, 86 N. Car. 725 
 (1882) ;" Wright v. Nostrand, 100 N. Y. 616, 3 N. E. 78 (1885) ; Lytle v. Lytic, 
 94 N. Cr-r. 522 (18S6) : Fish v. Toner, 40 Minn. 211, 41 N. W. 972 (1889) ; 
 IVhitrscll V P/-/-^ T76 Pa .Sf. T7n, -i'-. Atl. 48 (1896) ; Keck v. Allender, 42 W. 
 Va. 420, 26 S. E. 437 (1896) ; Brightly v. McAleer, 4 Pa Super. €1^6 3 (1897) ; 
 McElwee v. Wilce, 80 111. App. 338 (189S) ; I'lrst h'at. Bar.k of FT. Scott V. 
 Elliott, 60 Kans. 172, 55 Pac. 880 (1899) ; McFadden v. Szvinerton, 36 Ore. 
 336, 59 Pac. 816, 62 Pac. 12 (1900) ; Jenkins v. State, 60 Nebr. 205, 82 N. W. 
 622 (1900) ; Cowdery v. London & San Francisco Bank, 139 Cal._298, 73 Pac. 
 196, 96 Am. St. 115 (1903) ; Florence Cotton & Iron Co. v. Louisville Bank- 
 ing Co., 138 Ala. 588, 36 So. 456, 100 Am. St. 50 (1903) ; Chambliss v. Hass, 
 125 Iowa 484, loi N. W. 153, 68 L. R. A. 126 (1904) ; Lanyon v. Chesney, 
 209 Mo. I, 106 S. W. 522 (1907) ; Ward v. Sherman, 155 Cal. 287, 100 Pac. 
 864 (1909) ; Drescher-Rotbcrg Co. v. Landeker, 82 Misc. 441, 143 N. Y. S. 
 1050 (1913). 
 
 Restitution is not a matter of right but depends on the discretion of the 
 court and will not be ordered where the justice of the case does not call 
 for it. Fitzalden v. Lee, 2 Pall. (U S.) 20^. i L. ed. .-^^o. i Yeates (P n. ) 207. 
 (i-jm^^ TTrant v. Kodgers. 6 Fhila. (Fa .) 1.32 (1866); Coster v. Peters, 
 7 Rob. 386, 30 N.T~Su'per. Ct. 386 (1868) ; Goidd v. McFall, ii8_£a._SL>455. 
 12 Atl. 336, 4 Am. St. 606 (1888) ; Teasdale v. Stoller, 133 1^107645, 34 S. W. 
 873, 54 Am. St. 703 (1895); State v. Norton, 70 Nebr. 334, 97 N. W. 434 
 (1903) ; New Castle v. Genkinger, 37 Supe r. Ct.JPa.) 21 (1909) ; Carroll v. 
 Draughon, i-JZ Ala. 338, s6 So. 209 (1911)- Compare Kanck vT B^eck£Z^ I3 
 ^^Trr^ ^ p (Pn :i 412 (1825); Estns V. Baldwin, 9 TTow. Pr. (N. Y.) 80 
 
 The fact that payment was not coerced by execution ought not, alone, 
 to prevent restitution. "We ought not to say that a party must resist the 
 judgment of a court to the last exremity and with what is something like 
 contumacy, if he wishes to preserve his right to restitution in case he suc- 
 ceeds in reversing the judgment." Lott v. Sweccy, 29 Barb. (N. Y.) 87 
 (1859). Accord: Gregory v. Litsey, 9 B. Mon. (Ky.) 43, 48 Am. Dec. 415 
 (1848); Garr v. Martin, I Hilton (N. Y.) 358 (1857); Scholey v. Halsey, 
 72 N. Y. 578 (1878) ; Hillcr v. Hiller, 35 Ohio St. 645 (1880) ; Stuart v. Uni- 
 versity L. & S. Co., 66 Ore. 546, 135 Pac. 165 (1913)- Contra: Winston v. 
 Nunez, 25 La. Ann. 476 (1873) -. Gould v. M c Fall. 118 Pa. S t. 455. 12 Atl. 336, 
 4 Am. .St. 606 (1888), semble; Kahnhach v. Foote, 86 Mich7240, 49 N. W. 132 
 (1891) ; Groves v. Sent ell, 66 Fed. 179 (1895).
 
 HAEBLER V. MYERS 927 
 
 order, granted at special term on notice, vacating said attachment. 
 "After said attachment was so vacated, and in consequence thereof 
 and not otherwise, said sheriff paid over to the defendants, as sub- 
 sequent Henors, said $900 which he had received under the attach- 
 ment issued to him, as aforesaid, by tlie plaintiffs." On the 
 eighteenth of April, 1889, the order vacating the attachment was 
 affirmed by the general term, but on October 31, 1889, the court of 
 appeals reversed the orders made by the general and special terms 
 and denied the motion to vacate the attachment. 
 
 November 12, 1888, the plaintiffs recovered judgment in the 
 action brought by them against said Bernharth and others for the 
 sum of $1,258.91, but the execution issued thereon to said sheriff 
 was returned wholly unsatisfied and the judgment is still unpaid. 
 The plaintiffs demanded restitution from the defendants, which was 
 refused, and thereupon they brought this action, and after alleging 
 the foregoing facts, in substance, asked that the defendants be 
 ordered and decreed to make restitution to the plaintiffs of the said 
 sum of $900, with interest thereon from the twenty-second day of 
 November, 1888. 
 
 The defendants demurred to the complaint upon the ground 
 that it did not state facts sufficient to constitute a cause of action. 
 The special term, in sustaining the demurrer, held that the defend- 
 ants had received nothing from the plaintiffs, which they were 
 bound to restore to them, as the money in question belonged to 
 Bernharth and others until it was devoted to the payment of the de- 
 fendants' execution. The general term affirmed the judgment upon 
 the same ground, but also suggested that it was the duty of the 
 plaintiffs to obtain a stay of proceedings, if they wished to protect 
 their lien by a successful appeal.*^ 
 
 Vann, J. : Restitution was a remedy well known to the com- 
 mon law. Its object was to restore to an appellant the specific 
 thing, or its equivalent, of which he had been deprived by the en- 
 forcement of the judgment against him during the pendency of his 
 appeal. It was not created by statute, but was exercised by the ap- 
 pellate tribunal as incidental to its power to correct errors, and hence 
 the court not only reversed the erroneovis judgment, but restored 
 to the aggrieved party that which he had lost in consequence thereof. 
 It was usually a part of the judgment of reversal which directed 
 "that the defendant be restored to all things which he has lost on 
 occasion of the judgment aforesaid." 
 
 A writ of restitution was thereupon issued, provided the amount 
 that the appellant had lost, or paid under compulsion, appeared of 
 record, as by the return of an execution satisfied. Otherwise pro- 
 cess in the nature of an order to show cause was first issued, known 
 as a scire facias quare restitutionem habere non debet. Tomlin's 
 Law Diet, title Restitution ; 2 Till. Abr. 472 ; Rolle Abr. 778 ; West- 
 erne V. Creswick, 4 Mod. 161 ; Wilkinson's Case, Cro. Eliz. 465 ; 
 Goodyere v. Ince, Cro. Jac. 246; Manning's Case, 4 Coke 94; 2 
 Tidd's Pr. 1033 ; i Burrill Pr. 292. 
 
 **The arguments of counsel are omitted.
 
 9-'S APPEAL AXD ERROR 
 
 In this state the practice is now regulated by statute and ahiiost 
 every conceivable case is provided for. Code Civ. Pro. sections 445, 
 1005, 1 216, 1292, 1323, 2124, 2263 and 3058. Section 1323 seems 
 especially adapted to the facts set forth in the complaint, as it pro- 
 vides that "where a final judgment or order is reversed or modified 
 upon ajtpcal, the appellate court . . . may make or compel res- 
 titution of property, or of a right, lost by means of the erroneous 
 judgment of the order." This is a part of section 330 of the Code 
 of Procedure, under which it w^as held that the power conferred was 
 cumulative and did not take away the common-law rights of a suc- 
 cessful appellant. Lott v. Swezey, 29 Barb. (N. Y.) 87, 88. There 
 were earlier, though less complete statutes upon the subject. L. 
 1832, chapter 128, section i ; 2 R. S. 509, section 13; i R. L. 96, 
 sections 2, 5. 
 
 The statutory remedy is exercised by the entry of a judgment 
 or order in the action in which the erroneous judgment or order 
 was rendered or made. We think that the remedies provided by 
 statute are not exclusive and that they were enacted in recognition 
 of the right of restitution as it existed at common law, to furnish 
 additional means of enforcing that right. 
 
 We have before us an effort to procure restitution by an inde- 
 pendent action in the nature of indebitatus assumpsit, based upon 
 the theory tliat the law will imply a promise from the conduct of the 
 defendants and the circumstances of the case. It has been repeat- 
 edly held that such an action will lie to recover back money paid on 
 a judgment pending an appeal which resulted in a reversal. The 
 subject was carefully examined in Clark v. Pinney, 6 Cow. (N. Y.) 
 298, where it was held that the court would not compel the party to 
 resort to the antiquated remedy of scire facias, but would permit a 
 recovery by a direct action, as for money had and received. In de- 
 livering the opinion. Chief Justice Savage said: "The general propo- 
 sition is that this action lies in all cases where the defendant has in 
 his hands money which, ex aequo et bono, belongs to the plaintiff. 
 When money is collected upon an erroneous judgment which, sub- 
 sequent to the payment of the money, is reversed, the legal conclu- 
 sion is irresistible that the money belongs to the person from whom 
 it was collected." This principle was recognized by the Supreme 
 Court of the United States in United States Bank v. Bank of Wash- 
 ington, 6 Pet. (U. S.) 8, where it was declared that "on the reversal 
 of a judgment the law raises an obligation in the party to the record, 
 who has received the benefit of the erroneous judgment, to make 
 restitution to the other party for what he has lost," and that he might 
 proceed by action, scire facias, or order. The authorities uniformly 
 support this position and out of many tliat might be cited, the 
 following are sufficient to illustrate the subject: Stiirges v. Allis, 
 10 Wend. (N. Y.) 355; Maghee v. Kellogg, 24 Wend. (N. Y.) 32; 
 Norton v. Coons, 3 Den. (N. Y.) 130; Lanqlcy v. Warner, i Sandf. 
 (N. Y.) 209; LoU V. Swezey, 29 Barb. (N. Y.) 87, 88; Kidd v.
 
 HAEBLER V. MYERS 929 
 
 Curry, 29 Hun (N. Y.) 215; Wright v. Nostrand, 100 N. Y. 616; 
 Travel cr'.'^ J l is. Co v. H ^ntJr^jc^Pa 333-'^^ 
 
 The right of the plaintiffs toTecover 'could hardly be questioned 
 if the money had absolutely belonged to them when it was paid by 
 the sheriff to the defendants, but inasmuch as they only, had a lien 
 upon it and had not then com.pleted their title, it is claimed that no 
 action will lie for their relief. In taking this position the defendants 
 lose sight of the fact that a lien is property in the broad sense of 
 that word, and although it has no physical existence it exists by oper- 
 ation of law so effectively as to have pecuniary value, and to be 
 capable of being bought and sold. They also ignore the proceedings 
 that were in progress to convert the lien into a title to the fund. This 
 makes the successful prosecution of the appeal a barren victory and 
 enables the party in fault to retain the fruits of his own wrong. 
 
 While the erroneous order was a protection to the sheriff, who 
 acted upon it while it was in force, it is no protection to the defend- 
 ants, because it was subsequently reversed on appeal, and became, 
 as to them, the same as if it had never been made. When they ac- 
 cepted the money that was paid over in consequence of the order 
 that they procured, they knew that if the order should be reversed 
 and their motion denied, tliey would no longer be entitled to it, and 
 could not in fairness retain it. They also knew that if, in the mean- 
 time, the plaintiffs perfected judgment and issued execution, their 
 right to tlie money, if not paid over, would be complete upon a re- 
 versal of the order. As they acted with knowledge of all the facts, 
 it would be inequitable for them to retain money received under 
 such circumstances, and we see no reason why the law should not 
 infer a promise of restitution the same as if the money had been 
 collected under an execution. In either case the inference rests 
 upon the fact that money was received by those who knew at the 
 time that it might ultimately be decided that they were not entitled 
 to it. But to whom did the implied promise run? Obviously to 
 those who would have been entitled to the money upon the reversal 
 of the order, provided it had not been paid to the defendants. It 
 was so held in Camerton v. McCarkle, 15 Grat. (Va.) 177, which is 
 precisely in point. The law implies the promise for the benefit of 
 the injured party, and if the sitiiation were the same as it was when 
 the money was paid, repayment to the sheriff would be required, 
 because he would be entitled to possession of the fund tmder the re- 
 
 *°Accord: Hosmer v. Barret, 2 Root (Conn.) 156 (1794) ; Green v. Stone, 
 I Har. & J. (Aid.) 405 (1803) ; Duncan v. Kirkfatrick, 13 Se rg^&^. l.Pa.) 
 292 (1825) ; Bank of U. S. v. Bank of Washington, 6"Pet. (U.' S:) 8, 8 L. ed. 
 299 (1832); Catlin V. Allen, 17 Vt. 158 (1845); Glover v. Foote, 7 Blackf. 
 (Ind.) 293 (1844) ; Dnpny v. Roebuck, 7 Ala. 484 (1845) ; Stevens v. Fitch, 
 52 Mass. (11 Mete.) 248 (1846) ; Martin v. Woodruff, 2 Ind. 237 (1830) ; 
 E.X parte Morris & Johnson, 9 Wall. (U. S.) 605, 19 L. ed. 799 (1869) ; 
 Lewis v. Hiill, 39 Conn. 116 (1872) ; Crane v. Riiney, 26 Fed. 15 (1886) ; 
 Ashton V. Fleydenfeldt, 124 Cal. 14, 56 Pac. 624 ( 1899) ; Drescher-Rotberg 
 Co. V. Landcker, 82 Misc. 441, 143 N. Y. S. 1050 (1913). 
 
 59 — Civ. Proc.
 
 9J;0 APPEAL AND ERROR 
 
 Stored attachment. Pack v. Gilbert, 124 N. Y. 612. But the situation 
 is changed, as tlie plaintiffs have become entitled to the money by 
 virtue of their judgment and execution. They, and they alone, there- 
 fore, can avail themselves of the implied promise, w^liich is plastic in 
 character and for the beneiit of whom it may concern. The lavv^ im- 
 plies a promise because in equity and good conscience the defend- 
 ants ought to have promised, and it will not permit them to say that 
 they did not. It would be an anomaly to hold that the law will im- 
 ply a promise in favor of one having title, but not in favor of one 
 holding the first lien, when through the action of agencies known by 
 tlie parties to be in operation and in the ordinary course of legal 
 procedure, the lien would have ripened into a title, but for the er- 
 roneous order. The defendants procured the order and acted upon 
 it, and thereby obtained money that did not belong to them, and, 
 under such circumstances, the law presumes that they engaged to do 
 what reason and justice require them to do. They are, therefore, 
 under an obligation to restore the money. In enforcing that obliga- 
 tion, the courts will not be particular to require literal restitution to 
 tlie sheriff, or late sheriff, but, as the' plaintiifs have now become 
 entitled to the fund, will permit them to recover it in a direct action 
 for money had and received. By imputation of law, the defendants 
 received the money for the benefit of the party ultimately entitled 
 to it, and by refusing to pay it over to that party, upon a proper 
 demand after his rights had matured, became liable to an action for 
 the recovery thereof. Mason v. Prendergast, 120 N. Y. 536. 
 
 The suggestion that the plaintiffs should have procured a stay 
 of proceedings is not entitled to much weight, because a stay by 
 order is not a matter of right, while a stay by undertaking upon 
 appealing from a judgment is a matter of right, yet the omission to 
 give an undertaking does not prevent a recovery upon a reversal of 
 the judgment. 
 
 We think that the judgments rendered by the courts below 
 should be reversed and the demurrer overruled, with costs in all 
 courts, with leave to the defendants to answer over in twenty days 
 upon payment of costs.*^ 
 
 All concur. 
 
 Judgment reversed. 
 
 ^'Accord: Caperton v. McCorkle, S Gratt. (Va.) 177 (1848). Restitution 
 may be had from the assignee of the judgment reversed. Maghce v. Kellogg, 
 24 Wend. (N. Y.) 32 (1840) ; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 
 459 (i860) ; Florence Cotton & Iron Co. v. Louisville Banking Co., 138 Ala. 
 588, 36 So. 456, 100 Am. St. 50 (1903), or an agent of the adverse party who 
 still has the fund in his hands. Catlin v. Allen, 17 Vt. 158 (1845). But where 
 after the collection of the money, it is paid out to a third person, in good 
 faith, on reversal, the payment can not be recovered from such person : redress 
 must be sought from the adverse party. Langley v. Warner, 3 N. Y. ^27 
 (1850); Florida R. Co. v. Bisbee, 18 Fla. 60 (1881) ; Green & Miller v. 
 Brengle, 84 Va. 913, 6 S. E. 603 (1888) ; Fidelity Trust &c. Co. v. Louisville 
 Banking Co., 119 Ky. 675, 58 S. W. 712, 22 Ky. L. 202 (1900) ; Thaxter v. 
 Thain, loo App. Div. 488, 91 N. Y. S. 729 (1905). In McJilton v. Lovc,^ 
 13 111. 4S6, 54 Am. Dec. 449 (1851), it is said per Treat, C. J.: "If the plaintiff 
 has derived any benefit from the judgment, he must make as full restitution to 
 the defendant, as the circumstances of the case will permit. If he has
 
 CORWITH V. STATE BANK 93I 
 
 CORWITH V. STATE BANK OF ILLINOIS 
 
 Supreme Court of Wisconsin, 1862 
 
 IS Wis. 289 
 
 Appeal from the Circuit Court for La Fayette County. 
 
 The State Bank of Ilhnois moved the circuit court, at the Octo- 
 oer term, 1858, to set aside certain sales of real estate made to 
 Corwith, upon executions issued on a judgment in that court in his 
 favor against the bank, upon the ground that the judgment had, 
 after the sales were made, been reversed by the Supreme Court.*^ 
 
 Dixon, C. J. : The sale was set aside as to the lands bid in by 
 the plaintiff. The titles of strangers purchasing under the execu- 
 tion remain undisturbed. It is from this order the plaintiff appeals. 
 The rule upon which his counsel rely, or rather, the reason of it, 
 suggests its own exception, and that the plaintiff's case is within it. 
 The rule is, that where a judgment is reversed for error, the sale 
 under tlie execution shall not be avoided ; the reason, if it were, the 
 vendee would lose his property and his money too, and therefore 
 great inconvenience would follow, as no one would buy of the sheriff 
 in such cases, and executions of judgments would not be done. 8 
 Coke, Manning's Case;^^ Woodcock v. Bennett, i Cow. (N. Y.) 
 734-42. The exception necessarily implied is, if the plaintiff or cred- 
 itor be the purchaser, the sale may be avoided. He has parted with 
 no money, and has no property to lose. The reversal of his judgment 
 is a judicial determination that he was not entitled to recover. No 
 inconvenience will follow. It is unnecessary, to encourage bidders, 
 that he should be protected. The rule ceases with the reason. The 
 statute gives the debtor a right to redeem. It would be absurd and 
 unjust beyond measure, to say that he can only regain his land by 
 the payment of money which he does not owe. The wisdom of the 
 
 received payment in money from the defendant, the latter can recover it 
 back in an action of indebitatus assumpsit. If he has obtained money by 
 the sale of the property of the defendant, the latter may recover it as so 
 much money had and received to his use. If he has purchased in property 
 under the judgment, and still retains the ownership, the defendant may 
 recover the specific property in the appropriate action. If he has aliened 
 the property, he is responsible to the defendant for its value. But the rights 
 of third persons are not affected. Their title to property acquired under 
 an erroneous judgment, is not divested by the reversal. In such case the 
 defendant must look to the plaintiff for redress." 
 
 ■*'Part of the statement of facts and opinion of the court relating to 
 another point are omitted. 
 
 -'^"And if the sale of the term should be avoided, the vendee would lose 
 his term, and his money, too, and thereupon great inconvenience would follow, 
 that none could buy of the sheriff goods or chattels in such cases, and so 
 execution of judgment (which is the life of the law in such casesO would not 
 be done." Amner v. Loddington, cited in Manning's Case, 8 Coke 192 (1609). 
 Accord: Hoe's Case, 5 Coke 89 (1599) ; Coleman v. Trahiie, 2 Bibb (Ky.) 518 
 (1810). But otherwise as to sales on void judgments or executions. See note 
 to Champney v. Smith, 81 Mass. (15 Grav) 512 (i860), p. 764, supra: Hunter 
 V. Rtiff, 47 S. Car. 525, 25 S. E. 65, 58 Am. St. 907 (1896).
 
 93- ArrrAL Axn kkror 
 
 law, whicli looks to the rights of all jiarties, leads to no such oppres- 
 sion. The power to set aside the sale under such circumstances, of 
 necessity resides with the court, and the order here was fully justi- 
 fied. This conclusion is sustained by the English authorities. See 
 3 Bac. Abr. Tit. "Execution," Q, where, having given the rule, the 
 exception is thus stated: "But if the ]ilaintiff takes out an elegit on 
 his judgment, and the sheriff upon this writ delivers a lease for 
 years, of the defendant, to the value of £50, to tlie plaintiff, per 
 rationabile pretium et extentum, to have as his own term, in full 
 satisfaction of £50, part of the sum recovered, and afterwards the 
 defendant reverses the judgment, he shall be restored to the same 
 term and not to the value; for though the sheriff might have sold 
 tlie term on this writ, yet here is no sale to a stranger, but a delivery 
 of the term to the party that recovered, by way of extent, without 
 any sale, and therefore the owner shall be restored.*^ And for this 
 reason if goods were on this writ delivered to the party, per ration- 
 abile pretium et extentum, upon the reversal of the judgment he 
 should be restored to the goods themselves." The right of the 
 debtor, whose lands are purchased by the creditor on execution 
 under our statute, can not be distinguished on principle from those 
 of the debtor whose property is under extent according to the Eng- 
 lish practice. In Goodyear v. Junce, Yelv. 179, the distinction be- 
 tween a sale by the sheriff to the party himself and such sale to a 
 stranger, is expressly noted, and it is said the latter only will be 
 protected. If the former be the purchaser, restitution will be 
 awarded. And Harnson v. Doe, 2 Blackf. (Ind.) i, is an authority 
 fully in point. See also Simons v. Catlin, 2 Caines (N. Y.) 60.^° 
 Order affirmed. 
 
 ^'In Bryant v. Fairfield, 51 !Maine 149 (1863), it is held that if an execution 
 is extended upon the land of the debtor and is set off to the creditor and the 
 judgment is reversed on -writ of error, the debtor is entitled to the land again. 
 Accord: Delano v. Wilde, 77 Mass. (11 Gray) 17, 71 Am. Dec. 687 (1858); 
 Gay V. Smith, 36 N. H. 435 (1858), semble; Kennedy v. Duncklee, 67 Mass. 
 65 (1854), semble. Compare Horton v. Wilde, 74 Mass. 425 (1857). 
 
 ■^One not a party to the suit who purchases at a judicial sale based on 
 proceedings merely erroneous but not void, acquires a title which is not 
 divested by a subsequent reversal ; the appellant's remedy being, in such case, 
 an action against the adverse party. Anonynwits, Dyer 363 (1577) ; Taylor v. 
 Boyd, 3 Ohio 337, 17 Am. Dec. 603 (1828) ; Hays v. S hanno n, 5 Watts. (Pa.) 
 548 (1836) ; ly ampler v. Wolfinger, 13 Md. 337 (1858) ; Duf_Y-_J^W^op, 
 7 £Pa. St. ■•^00 (187.^ ) ; McWaters v. Smith, 25 La. Ann. 515 (1873) ; SJililts 
 V. Sanders, 38 N. J. Eq. 154 (1884) ; Whitman v. Fisher, 74 111. 147 (1874) ; 
 Stout v. Gully, 13 Colo. 604, 22 Pac. 954 (1889) ; Parker v. Courtney, 28 Nebr. 
 605, 44 N. W. 863, 26 Am. St. 360 (1890) ; Macklin v. Allenberg, 100 Mo. 337, 
 13 S. W. 350 (1889) ; Shannon v. Keivt o n,i32 F a. St. 375, 19 Atl. 138 (1890) ; 
 Ryan v. Staples, 78 Fed. 563 (1897) ; JI^CLrM ?TEst atJrT^2 ViK._St^ 3g3, 38 Atl. 
 620 (1807), semble; Manfiill v. CrahanlTss Nebr. 645, 76 "N. W. l^, 70 Am. St. 
 412 (1898) ; Klapneck v. Kelts, 50 W. Va. 331, 40 S. E. 570 (1901) ; Kazeheer 
 V. Xtinemaker, 82 Nebr. 732, 118 N. W. 646 (1908) ; Lanier v. Ileilig, 149 N. 
 Car. 384, 63 S. E. 69 (1908); The John Twohy Jr., 189 Fed. 965 (1911) ; 
 Chapman v. Branch, 72 W. Va. 54, 78 S. E. 235 (1913). But property pur- 
 chased by the adverse party, or those in privity with him by some authorities, 
 will be restored to the successful appellant. Dater v. Troy Turnpike R. Co., 
 2 Hill (N. Y.) 629 (1842) ; McLagan v. Brozvn, 11 111. 519 (1850) ; McBain v. 
 McBain, 15 Ohio St. 337 (1864) ; Voglcr v. Montgomery, 54 Mo. 577 (1874) ; 
 
 1
 
 CHAMBERS V. nilLADELPIIIA P. CO. 933 
 
 SECTION 9. REMITTITUR 
 
 CHAMBERS v. I'HILADELPHIA PICKLING CO. 
 
 Supreme Court of New Jersey, 191 i 
 
 S2 N. J. L. I 
 
 On defendant's rule to show cause. 
 
 Gummere, C. J. : This case was tried at the Camden circuit 
 on April 11, 191 1, in the absence of the defendant, and resulted in a 
 verdict for the plaintiff. The case had been in the court of errors 
 and appeals on a review of a judgment overruling a demurrer. The 
 remittitur from the court of errors and appeals bears date March 6, 
 191 1 ; the file mark endorsed upon it by the clerk of the court of 
 errors and appeals, however, bears date April 24, 191 1, thirteen days 
 after the trial at the circuit. The reasonable conclusion to be drawn 
 from these variant dates is that, although the remittitur was ordered 
 by the appellate court on the sixth day of March (that being the 
 date upon which the opinion of that court was delivered in the case), 
 the plaintiff's attorney failed to file the remittitur in the clerk's office 
 until tlie twenty-fourth of April. On this assumption the trial was 
 premature, for the writ of error removed the record into the court 
 of review, and that record remained there until the remittitur was 
 actually entered. Welsh v. Brown, 13 Vroom (N. J.) 324. More- 
 over, under rule 39 of the court of errors and appeals, the record is 
 not permitted to be actually remitted' to the court below until after 
 the expiration of ten days from the date of the entry of the remitti- 
 tur, without a special order of the court. Until the record Avas re- 
 turned the court below was without power to try the case. For this 
 reason the rule to show cause will be made absolute.^^ 
 
 Fishhach v. Weaver, 34 Ark. 569 (1879) ; Ogdcn v. Harrison, 56 Miss. 743 
 (1879) ; Major v. Collins, 17 111. App. 239 (1885) ; Cottle v. Simon, 153 N. Y. 
 403, 47 N. E. 81S (1897); Dunfce v. Childs, 45 W. Va. 155, 30 S. E. 102 
 (1898) ; DiNola v. Allison, 143 Cal. 106, 76 Pac. 976, 65 L. R. A. 419, loi 
 Am. St. 84 (1904). Contra: Den ex dem. Bickerstaff v. Bellinger, 5 N. Car. 
 272 (1809) ; South Fork Canal Co. v. Gordon, 2 Abb. (U. S.) 479, Fed. Cas. 
 No. 13189 (1868) ; Blake v. Wolf, 23 Ky. L. 1143, in Ky. 840, 64 S. W. 910, 
 98 Am. St. 434 ( 1901 ) . 
 
 Where the property is sold to a stranger, restitution will be awarded 
 only in the amount received by the judgment creditor. Cassell v. Cooke, 8 
 .Serc^. ^ R. (Pa.^ 2n6 ( ^9,9.9^ ; Gay V. Smith, 38 N. H. 171 (1859)! 'Pec^ V. 
 McLean, 36 Minn. 228, 30 N. W. 759, i Am. St. 665 (1886). Contra (allow- 
 ing value of property) : Thompson v. Thompson, i N. J. L. 159 (1793) ; 
 Maynard v. May, 16 Ky. L. 690, 25 S. W. 879 (1894) ; Ftish v. Egan, 48 La. 
 Ann. 60, 19 So. 108 (1896). 
 
 "Accord: Norris v. Tomlin, 2 Munf. (Va.) 336 (1811) ; Lafferty v. 
 Rutherford, 10 Ark. 453 (1850); Cox v, Henry ,_2>^ Pa. St. 445 (i860); 
 La Crosse Co. v. Reynolds, 12 Minn. CGiTriT7J 213 (1867) -.TTowFridge v. 
 Sickler, 48 Wis. 424, 4 N. W. 563 (1879); Austin v. Dufour, no III. 85 
 (1884) ; Lloyd v. Matthews, 92 Ky. 300, 17 S. W. 795, 13 Ky. L. 537 (1891) ; 
 Oregon R. Co. v. Hertsherg, 26 Ore. 216, 37 Pac. 1019 (1894) ; Htihbard v. 
 McCrea, 103 Ga. 680, 30 S. E. 628 ( 1898) ; Lyon v. Lyon, 103 Ga. 747, 30 S. E.
 
 934 
 
 APPEAL AND ERROR 
 
 EXCHANGE MUT. LIFE INS. CO. r. WARSAW-WILKIN- 
 SON CO. 
 
 Circuit Court of Appeals of United States, Third Circuit, 
 
 1910 
 
 185 fed. 487 
 
 In error to the Circuit Court of the United States for the East- 
 ern District of Pennsylvania. 
 
 Action at law by the Warsaw-Wilkinson Company against the 
 Exchange IMutual Life Insurance Company. On motion to amend 
 mandate in 181 Fed. 330." Denied. 
 
 Before Buffington, Circuit Judge, and Archbald and Cross, 
 District Judges. 
 
 Per Curiam. According to the memorandum at the foot of the 
 former opinion (181 Fed. 330), the judgment below was reversed, 
 and a procedendo awarded. This order was appropriate to the case. 
 Showell V. Barr, 228 Pa. 42. And there was nothing obscure about 
 it. It merely remitted the case for further proceedings not incon- 
 sistent with what had been decided. Commonwealth v. Magee, 224 
 Pa. 171. A procedendo is a writ from a higher to a lower court, 
 directing that the case be proceeded with. It does not undertake to 
 say what the decision shall be, but merely that there shall be one. 
 3 Blacks. Com. 109; Yates v. People, 6 Johns. (N. Y.) 462; 2 
 Cromp. Prac. 433 ; i Fitzh. N. B. 153, 154, 240. And, where there is 
 a reversal, the case is thereupon taken up in the court below at the 
 point where the erroneous judgment was rendered. In the present 
 instance the mandate in strictness should have amplified the memo- 
 randum, and not simply repeated it. The judgment being reversed, 
 the case should have been remitted to the court below for further 
 proceedings as to right and justice might pertain, consistent with tlie 
 decision rendered, a not unfamiliar direction. Cf. Davis v. Railroad, 
 217 U. S. 157; McClellan v. Garland, 217 U. S. 268. 
 
 575 (1898). Contra: Judson v. Gray, 17 How. Pr. (N. Y.) 289 (1859); 
 Becker v. Becker, 50 Iowa 139 (1878). The omission has been regarded as an 
 irregularity that may be remedied by an order nunc pro tunc. Albrir/htV. 
 McGinnis. d Yeates (P a.) 517 (1808); In re Benzin ger Tp. Rd., 135 Pa^ St. 
 
 176, 19 Atl. 942 (1890^. ■ , . , , , /^ .1. 7; , 
 
 Either party may file the mandate m the court below, tampbell v. 
 Weakley, 7 B. 'l^Ion. (Kv.) 22 (1846); Murray v. IVhittaker, 17 111. 230 
 (1855). In Pennsylvania the A c , t of Mav lo. i8q7. P. L. 67, § 20, provides: 
 "At the expiration of ten days from the final decision of any cause by the 
 Supreme Court or superior court, the prothonotary thereof Ehall send back 
 the record, with a remittitur and a cony of the opinion to the court from which 
 it originally came, unless other steps be taken in the cause which shall require 
 
 its detention." -r^ r j . /^i j 
 
 "The action was on a fire insurance policy for $7,500. Defendant hied an 
 affidavit of defense contending that it was only liable for $1,721.72. Plaintiff 
 took a rule for judgment for want of a sufficient affidavit of defense, which 
 the court made absolute. Defendant brought error. The circuit court of 
 appeals held that it was error to give summary judgment for more than the 
 amount admitted, reversed the judgment and awarded a procedendo.
 
 EXCHANGE &C. INS. CO. V. WARSAW-WILKINSON CO, 935 
 
 A motion is made to amend the mandate, and have it declare 
 what shall be the result of the proceedings to be further taken ; that 
 is to say, that the rule nisi for judgment for want of a sufficient affi- 
 davit of defense should be restored and made absolute, and judg- 
 ment be thereupon entered in favor of the plaintiff for the amount 
 admitted to be due, with interest, and "a procedendo awarded as to 
 the balance." If there was any uncertainty in die original direction 
 that a procedendo, eo nomine, be awarded, this only serves to repeat 
 and continue it, and to avoid this we ought, in consistency, to go on 
 and tell the court what should be done afterwards. But this is 
 neither wise nor best as to any of it. Authority may exist, in re- 
 versing a judgment, to direct that some other one be rendered, and 
 there may be cases which call for it. Rev. Stat., section 701 ; Act 
 March 3, 1891, chapter 517, section 11, 26 Stat. 829 (U. S. Comp. 
 St. 1901, p. 552). Nor is there much doubt here as to what is likely 
 to be the result with respect to the part of the plaintiff's claim that 
 is not controverted. But the case in which the appellate court may 
 dictate the judgment are those where final disposition may be so 
 made of them. And the judgment here is not of that character. The 
 case has got to go back as to a part of the controversy, and it is best, 
 therefore, that it should go back as to all of it. 
 
 The only question before the court, at the argument, was the 
 validity of the judgment which had been entered in the court below, 
 and not some other which might have been; and, in reversing, the 
 judgment here is properly confined to that. It might be that no harm 
 would result, in the present instance, in controlling the proceedings 
 to the extent asked for. But the precedent is not a good one, and 
 we can not tell the effect it might have on others. The plaintiffs can 
 get all the relief that they are entitled to in the court below, without 
 moving this court, and to that tliey should be remitted. 
 
 The motion to amend the mandate is refused, except that the 
 case will be directed to be sent back for further proceedings not in- 
 consistent with the opinion previously rendered.®^ 
 
 ^'In People v. Wait, 243 111. 156, 90 N. E. 183 (1909), it is said, per 
 Cartwright, J.: "If a judgment is reversed and the cause is remanded the 
 inferior tribunal can take only such further proceedings as conform to the 
 judgment of the appellate tribunal, and if specific directions are given, nothing 
 can be done except to carry out such directions. If no specific directions are 
 given, it must be determined from the nature of the case what further pro- 
 ceedings would be proper and not inconsistent with the opinion. It is not 
 required that specific directions shall be stated in an order reversing a judg- 
 ment and remanding a cause, and it is the duty of the court to which the 
 cause is remanded, to examine the opinion and proceed in conformity with the 
 views expressed in it. It makes no difference whether there is a general 
 direction to proceed in conformity with the views expressed in the opinion 
 or not, because that is always the duty of the inferior court, and if the issue 
 has been determined upon its merits and the cause remanded generally, the 
 court can do nothing but enter a judgment accordingly, if it is a case like 
 this [delinquent tax proceeding], where there is no right to a jury trial " 
 See further Ex parte Sibbald v. United States, 12 Pet. (U. S.) 488 (1838); 
 Soule V. Dawes, 14 Cal. 247 (1859) ; Dahcock v. Murray, 61 Minn. 408, 63 
 N. W. 1076 (1895) ; Coughltn v. McElroy, 72 Conn. 444, 44 Atl. 743 (1899). 
 But the lower court may consider and decide any matters left open by the
 
 93^ ArrEAL and error 
 
 mandate of tlic appellate court, and its decision of such matters can be re- 
 viewed by a new appeal only. In re Sandford Fork & Tool Co., i6o U. S. 
 247, 40 L. ed. 414 (1895) ; Johns v. Norris, 28 N. J. Eq. 147 (1877) ; Kersh- 
 inan v. Szvchla, 62 Iowa 654, 17 N. W. 908 (1883); McDonald v. Swisher, 
 fx) Kans. 610, ^7 Pac. 507 (1899) ; Hannum v,_ Media Jjlc^R, Co., 221 Pa. 454, 
 70 Atl. 847 (1008); Ettor V. Tacoiita, 77 Wash. 267, 137 Pac. 820 (1914); 
 State ex rel. McDonald v. Parrington, 86 Ncbr. 653, 126 N. W. 91 (1910) ; 
 Lake v. Weaver, 77 N. J. Eq. 100, 75 Atl. 906 (1910) ; IFard v. Harcn, 183 Mo. 
 App. 569, 167 S. W. 1064 (1914) ; Kuraih v. Ludzvig, 146 Wis. 385, 132 N. W. 
 130 (1911) ; State ex rel. Brnmlcy v. Jessup, 26 Del. 329, 83 Atl. 30 (1912) ; 
 Fulton V. Krull, 151 App. Div. 142, 135 N. Y. S. 432 (1912) ; O'Brien v. 
 Seyholt, 163 App. Div. 162, 148 N. Y. S. 489 (1914) ; D'Arcy v. Jackson 
 Cushion Spring Co., 212 Fed. 889 (.1914) ; Taylor v. Pierce, 220 Mass. 254 107 
 N. E. 947 (191S),
 
 APPENDIX 
 
 ORIGINAL WRIT IN TRESPASS 
 Registrum Brevium (1687) 93 
 
 Rex, vicecomiti Lincoln salutem Si A, f ecerit te securum de clamore suo 
 prosequendo : tunc pone per vadium & salvos pleg' B. quod sit coram justi- 
 tiariis nostris apud Westm in octavis sancti Michaelis: (vel sic, quod sit coram 
 nobis in octavis sancti Michaelis ubicunq ; tunc fuerimus in Angl,') ostensurus 
 quare vi & armis in ipsum A. apud N. insultum fecit, & ipsum verberavit, 
 vulneravit & male tractavit; ita quod de vita ejus desperabatur, & alia enor- 
 mia ei intulit, ad grave damnum ipsius A. & contra pacem nostram. Et 
 habeas ibi nomina pleg' & hoc breve. T. &c. 
 
 MODERN WRIT OF SUMMONS 
 Annual Practice (1914) 1401 
 
 George the Fifth, by the grace of God, of the United Kingdom of Great 
 Britain and Ireland, and of the British Dominions beyond the Seas, King, 
 Defender of the Faith. 
 
 To C D of in the county of 
 
 We command you. That within eight days after the service of this writ 
 on you, inclusive of the day of such service, you do cause an appearance to 
 be entered for you in an action at the suit of A. B. ; and take notice that in 
 default of your so doing the plaintiff may proceed therein, and judgment may 
 be given in your absence. 
 
 Witness, 
 
 Lord High Chancellor of Great Britain, the day of , in the 
 
 year of our Lord one thousand nine hundred and 
 
 SUMMONS. PENNSYLVANIA 
 
 The Commonwealth of Pennsylvania, County of Philadelphia, ss : 
 
 To the Sheriff of the County of Philadelphia, Greeting: We command 
 you that you summon C D, late of your county, so that he be and appear 
 before our judges, at Philadelphia, at our Court of Common Pleas, No. I 
 of the County of Philadelphia, to be holden at Philadelphia, in and for 
 the said county, on the Monday of next, there to answer A B of a 
 
 plea of Assumpsit. And to have you then and there this writ. Witness The 
 Honorable E F, President of our said court, at Philadelphia, the day 
 
 of , in the year of our Lord, one thousand nine hundred and 
 
 Prothonotary. 
 [Act of June 13, 1836. P. L. 568.] 
 
 DECLARATION 
 
 Special Count in Assumpsit 
 2 Chitty on Pleading (1828) 278 
 
 In the Common Pleas. 
 
 Middlesex (to wit.) C D was attached to answer A B of a plea of 
 trespass on the case upon promises; and thereupon the said A B by E F 
 his attorney, complains. For that whereas, heretofore, to wit on at 
 
 in consideration that the said A B at the special instance and request of the 
 said C D would buy of him the said C D a certain horse, at and for a cer- 
 tain price or sum of money to wit, the sum of i to be therefore paid by 
 him the said A B he the said C D undertook, and then and there faithfully 
 promised the said A B that the said horse then was sound. And the said 
 A B avers, that he, confiding in the said promise and undertaking of the 
 said C D did afterwards, to wit, on &c. aforesaid, at &c. aforesaid, buy 
 the said horse of the said C D and then and there paid him for the same the 
 
 937
 
 93$ ArPF.NDIX 
 
 snid Slim of i ; nevertheless tlie said C D contriving: and fraudulently 
 intondinsi to injure the said A B did not perform or regard his said promise 
 and undertaking, so bv him made as aforesaid, but thereby craftily arid 
 subtlv deceived" and defrauded the said A B in this, to wit, that the said 
 horse, at the time of the making of the said promise and undertaking of the 
 said C D was not sound, but on the contrary- thereof, was at the time un- 
 sound, wherebv the said horse became and was of no value to the said A B, 
 and he the said A B hatli been put to great charges and expense of his 
 moneys in and about the feeding, keeping, and taking care of the said horse 
 in the whole amounting to a large sum of money, to wit, the sum of £ 
 Wherefore the said A B saith that he is injured and hath sustained damages 
 to the amount of £ and therefore he brings his suit &c. 
 
 [Compare the form in case for deceit in the sale of a horse 2 Chitty on 
 Pleading (1828) 679.] 
 
 COMMON COUNTS CONDENSED 
 
 For that whereas the said defendant CD on the _ day of 
 
 in the year of our Lord one thousand nine hundred and in the county 
 
 of aforesaid was indebted to the plaintiff in one thousand dollars, for 
 
 the price and value of goods sold and delivered by the plaintiff to the de- 
 fendant at his request ; and in the like sum of money for the price and value 
 of goods bargained and sold by the plaintiff to the defendant at his request : 
 and in the like sum of money for the price and value of work done, and 
 materials for the same provided by the plaintiff for the def endent at his request ; 
 and in the like sum of money lent by the plaintiff to the defendant at his re- 
 quest; and in the like sum of money for money received by the defendant for 
 the use of the plaintiff ; and in the like sum of money for money paid by the 
 plaintiff for the use of the defendant at his request; and in the like sum of 
 money for interest due from the defendant to the plaintiff for the plaintiff 
 having foreborne moneys due from the defendant to the plaintiff at the de- 
 fendant's request, for a "long time then elapsed; and in the like sum of money 
 or monev found to be due from the defendant to the plaintiff on an account 
 then and there stated between them; and the defendant afterwards (to wit) 
 on the day and year last aforesaid, in the county aforesaid, in consideration of 
 the premises, respectively, promised to pay the said several last mentioned 
 moneys respectively to the plaintiff on request ; yet the defendant has disre- 
 garded his promises, and has not paid any of the said moneys or any part 
 thereof; to the plaintiffs damage one thousand dollars, and thereupon he 
 brings suit, &c. E. _F. 
 
 Attorney for Plaintiff. 
 
 [Form in use in New Jersey prior to the practice act of 1912. For other 
 forms see 2 Chitty on Pleading (1828) 36; 2 Encyclopaedia of Forms 297; 
 9 Standard Proc. 120.] 
 
 COMPLAINT IN ALTERNATIVE 
 New Jersey Practice Act of 1912. Schedule B, form 13 
 Supreme Court of New Jersey. Hudson County 
 Plaintiff 
 
 A B, 
 
 C D, and in the alternative, E F, 
 
 Defendants. 
 Complaint. 
 
 Plaintiff (state residence) says that: 
 
 1. On January 2, 1912, defendant, C D, represented to plaintiff that he 
 (C D) was the agent of defendant, E F, authorized to sell the securities 
 hereinafter mentioned of said E F. 
 
 2. On the same day, by written agreement, plaintiff, relying on the said 
 representations, agreed to buy, and said C D agreed to sell, for account of 
 said E F, 100 shares of the capital stock of the company, for the price
 
 APPENDIX 939 
 
 of $10,000; delivery to be made and the price paid on the then next day. A 
 copy of said agreement is annexed. 
 
 3. Neither of said defendants delivered said stock at the time agreed, nor 
 at all, and both of them still refuse to deliver it. 
 
 4. Said C D still insists that he was duly authorized by said E F to 
 make said contract ; but said E F denies that he had so authorized C D, and 
 he repudiates the contract. Plaintiff does not know whether or not said C D 
 was so authorized. 
 
 Plaintiff demands against the defendant, E F, or, in the alternative, 
 against the defendant, C D, $3,000 damages. 
 
 JUDGMENT. DELAWARE 
 
 And now, to wit, this sixth day of June, in the year of our Lord one 
 thousand eight hundred and ninety-four, this cause came before the Superior 
 Court of the State of Delaware, in and for the county of Kent, and came the 
 parties, by their attorne}^ and thereupon came a jur}-, to wit (naming them), 
 who being duly elected, tried and sworn, the truth to speak upon the issue 
 joined on defendant's plea, upon their oath do say that upon the said issue 
 joined they find for the plaintiff and they assess the damages which the 
 plaintiff had sustained by occasion of the nonperformance of the promises 
 and assumptions in the declaration mentioned, to five hundred dollars, and 
 allow on the said damages interest from the sixth day of March last past till 
 paid. 
 
 W^herefore it is considered by the court that the plaintiff recover against 
 the defendant his damages assessed as aforesaid, with interest thereon to be 
 compute^! at the rate of six per cent, per annum from the said sixth day of 
 March last past to the payment, and his costs, etc. 
 
 Judgment signed this sixth day of June, A. D. 1894. 
 
 John Marshall, Judge. 
 
 [For other forms see 10 Encyclopaedia of Forms 649. For England, 
 Annual Practice (1914) 1492.] 
 
 EXECUTION 
 
 Ancient Forms 
 
 Writ of Habere Facias Seisinam 
 
 Glanville, Book 13, Chapter 8 
 
 Rex vicecomiti salutem : Scias quod N. diracionavit in curia mea 
 
 seisinam tantae terrae in ilia villa per recognitionem de morte illius anteces- 
 
 soris sui versus R. Et ideo tibi praecipio quod seisinam illam ei sine dilatione 
 
 habere facias. 
 
 Teste Ranulpho de Glanvilla apud Westmonasterium &c. 
 
 [Teste from Book I, ch. 13. See also Registrum Judiciale (1687) 20, 26.] 
 
 Writ of Levari Facias 
 
 Fitz-Herbert's Natura Brevium 265. Registrum Brevium 298 (1687). 
 
 Rex vicecomiti salutem. Quia L filius B. solvisse debuit M. de B. xx 
 i in festo sancti Michaelis anno regni nostri &c. Sicut constat nobis per in- 
 spectionem rotulorum cancellariae nostrae & eas ei nondum solvit, ut 
 dicitur ; Tibi praecipimus quod praed' pecuniam de terris & catallis ipsius L 
 in balliva tua sine dilatione levari facias, ita quod earn habeas in cancellaria 
 nostra in crastino nativitatis sancti Johannis Baptistae proxime futuro 
 ubicunque tunc fuer,' praefato M. ibidem liberand' & hoc nullatenus omittas. 
 Et habeas ibi hoc breve. Teste &c. 
 
 Vv''rit of Elegit 
 
 Fitz-Herbert's Natura Brevium 266. Registrum Brevium 299 (1867). 
 Rex vicecomiti salutem. Quia R. undecimo die Februarii ultimo prae- 
 terito, in cancellaria nostra recognovit se debcre H. viginti libras, quas ei
 
 940 
 
 APrKNDIX 
 
 solvissc dcbult in fcsto tali tunc proximc scqucnti sicut constat &c. canccl- 
 lariac nostnie, & cas ci noncliim solvit ut elicit, ac idem H. juxta statutum 
 indo cditum clegcrit, sibi liberari pro pracd' viginti libris omnia catalla & 
 medictatum tcrrae ipsius R. tencnd' juxta formam statuti praed' : Tibi 
 praecipimus quod catalla ipsius R. ad valentiam pracdictarum viftinti librar' 
 per rationabilcm approciationcm corundem, cxceptis bobus & atTris carucae 
 in praesontia praed' R. per to inde praemonend,' si intcrcsse volucrit, faciend' 
 praclacto H. vol suo ccrto attornato facias liberari. F.t si catalla ilia ad- 
 valcntiam praed' vi.uinti libraruni non sutTiciant, tunc catalla ilia sic minus 
 valeiitia per rationalilem appreciatorem, ac etiam mcdietatcm terrae ipsius 
 R. in balliva tua per cxtcntam similiter in praescntia tua in forma praed' 
 faciend', praefato H. vel dicto attornato facias liberari, tenend' ut liberum 
 tencmentum suum, quousq' dictum debitum inde fuerit levatum. Et de eo 
 quod inde feceris, nobis in dica cancellaria nostra tali die ubicunque tunc 
 fuerit, sub sigillo tuo distincte & aperte constare facias. Et habeas ibi hoc 
 breve. Teste &c. 
 
 Modem Forms 
 
 Ajinual Practice (1914) I5I2 
 
 Writ of Fieri Facias 
 
 George the Fifth, by the grace of God of the United Kingdom of 
 Great Britain and Ireland, and of the British Dominions beyond the Seas, 
 King, Defender of the Faith. To the sheriff of , greetings: 
 
 We command you that of the goods and chattels of C. D. in your bailiwick 
 you cause to be made the sum of £ and also interest thereon at the 
 
 rate of i per centum per annum from the day of 
 
 which said sum of money and interest were lately before us in our High 
 Court of Justice in a certain action wherein A B is plaintiff and C D 
 defendant by a judgment of our said court, bearing date the day of 
 
 , adjudged to be paid by the said C D to A B, together with 
 certain costs in the said judgment mentioned, and which costs have been 
 taxed and allowed by one of the taxing officers of our said court at the 
 sum of £ as appears by the certificate of the said taxing officer, dated 
 
 the day . And that of the goods and chattels of the 
 
 said C D in your bailiwick you further cause to be made the said sum 
 of £ (costs) together with interest thereon at the rate of £4 per centum 
 
 per annum from the day of and that you have that money 
 
 and interest before us in our said court immediately after the execution 
 hereof to be paid to the said A B, in pursuance of the said judgment. And 
 in what manner you shall have executed this our writ make appear to us 
 in our said court immediately after the execution thereof. And have there 
 then this writ. Witness, &c. 
 
 Writ of Venditioni Exponas 
 
 George the Fifth, by the grace of God, &c. To the sheriflF of 
 greeting : Whereas by our writ we lately commanded you that of the goods 
 and chattels of C D (here recite the fieri facias to the end). And on the 
 
 day of , you returned to us in the 
 
 Division of our High Court of Justice aforesaid, that by virtue of the said 
 writ to you directed you had taken goods and chattels of the said C D to 
 the value of the money and interest aforesaid, which said goods and chattels 
 remained in your hands unsold for want of buyers. Therefore we, being 
 desirous that the said A B should be satisfied his money and interest afore- 
 said, command you that you expose to sale and sell, or cause to be sold, 
 the goods and chattels of the said C D by you in form aforesaid taken, and 
 every part thereof, for the best price that can be gotten for the same, and 
 have the money arising from such sale before us in our said court of justice 
 immediately after the execution hereof, to be paid to the said A B. And 
 have there then this writ. Witness, &c.
 
 APPENDIX 941 
 
 Writ of Delivery 
 
 George the Fifth, by the grace of God, &c. To the sheriff of , 
 
 greeting : We command j^ou, that without delay you cause the following 
 chattels, namely (enumerate the chattels recovered by the judgment for the 
 return of which execution had been ordered to issue), to be returned to 
 A B, which the said A B lately (recovered against C D or which C D 
 was ordered to deliver to the said A B) in this action by a (judgment or 
 order), dated the day of , 19 . And we 
 
 further command you, that if the said chattels can not be found in your baili- 
 wick, you distrain the said C D by all his lands and chattels in your baili- 
 wick, so that neither the said C D nor an3-one for him do lay hands on 
 the same until the said C D render to the said A B the said chattels. And 
 in what manner you shall have executed this our writ make appear to us 
 in our said court immediately after the execution hereof. And have there 
 then this writ. Witness, &c. 
 
 Writs of Possession 
 
 George the Fifth, by the grace of God, &c. To the sheriff of , 
 
 greeting: Whereas lately in our High Court of Justice, by a judgment of 
 the Division of the same court A B recovered (or E F was 
 
 ordered to deliver to A B) possession of all that 
 
 with the appurtenances in your bailiwick: Therefore, we command you that 
 you omit not by reason of any liberty of your county, but that you enter the 
 same, and without delay you cause the said A B to have possession of 
 the said land and premises with the appurtenances. And in what manner 
 you shall have executed this our writ appear to us in our said court 
 immediately after the execution thereof, &c. And have you there then this 
 writ. Witness, &c. 
 
 Execution Against Property. New York 
 
 The people of the State of New York to the sheriff of the County 
 of S, greeting: Whereas judgment was rendered on the day of 
 
 ,19 , in an action in the Supreme Court between A, plaintiff, 
 and B, defendant, in favor of the said plaintiff against the said defendant 
 for the sum of dollars, as appears to us by the 
 
 judgment roll filed in the office of the clerk of the County of S; and whereas 
 the said judgment was docketed in your county on the day of 
 
 19 , and the sum of dollars with interest from the 
 
 day of , 19 , is now actually due thereon : Therefore, we com- 
 
 mand you that 5^ou satisfy the said judgment out of the personal property 
 of the said judgment debtor within your county; or if sufficient personal 
 property can not be found, then out of the real property in your county 
 belonging to such judgment debtor on the day when the said judgment was 
 so docketed in your county, or at any time thereafter, in whose hands soever 
 the same may be, and return the execution within sixty days after its receipt 
 by you, to the clerk of the County of S. Witness, Honorable , 
 
 justice of said court, at the day of , 19 . 
 
 Plaintiff's Attorney. 
 
 Execution Against the Person. New York 
 
 The people of the State of New York to the sheriff of the County of S, 
 greeting: Whereas judgment was rendered on the day of , 
 
 one thousand nine hundred , in an action in the 
 
 between A, plaintiff, and B, defendant, in favor of the said plaintiff against 
 the said defendant for the sum of as appears to us by the 
 
 judgment roll, filed in the office of the clerk of the , County 
 
 of , and whereas the said judgment was docketed in the 
 
 office of the clerk of your county on the day of in the
 
 942 APPENDIX 
 
 year one thousand nine hundred , and whereas an execution 
 
 against the property of the judgment debtor has been duly issued to the sheriff 
 of the County of , whore tlie said judgment debtor resides, and 
 
 has been returned unsatisfied, and the sum of is now actually due 
 
 ti'.crcon ; therefore we command jou, that you arrest the judgment debtor 
 and commit him to the jail of your county initil he pay the said judgment, 
 or be discharged according to law, and that you return this execution within 
 sixty days after its receipt by you to the clerk of the County of S. Witness, 
 Honorable at of one thousand 
 
 nine hundred 
 
 Attorney for Plaintiff. 
 
 Writ of Fieri Facias. Pennsylvania 
 
 County of Philadelphia, ss. : 
 
 The Commonwealth of Pennsylvania to the sheriff of the County of 
 Philadelphia, greeting : We command you that of the goods and chattels, lands 
 and tenements of B, defendant, in your bailiwick, you cause to be levied as 
 well the sum of dollars and cents, lawful 
 
 money of Penns3-lvania, which v.^as adjudged to A, plaintiff, lately in our 
 Court of Common Pleas No. of the Coimty of Philadelphia, in a cer- 
 
 tain action of between the said plaintiff and said defendant; 
 
 as also the sum of dollars and cents, for the 
 
 costs and charges by the said plaintiff about his suit in that behalf expended, 
 whereof the said defendant is convict, as appears of record, &c. And have 
 you those moneys before our judges, at Philadelphia, at our said court, there 
 to be held the first Monday of next, to render to the said plain- 
 
 tiff for the judgment debt, damages and costs aforesaid. And have you then 
 there this writ. Witness the Honorable , president judge of our 
 
 said court at Philadelphia, the day of , in the year of our 
 
 Lord one thousand nine hundred and 
 
 Prothonotary. 
 
 Sheriff's Retur.nt Where Levy Made 
 
 By virtue of the within writ to me directed, of the goods and chattels of 
 the within-named B. I have caused to be levied the debt and damages within 
 specified, which moneys I have readj- before the judges within-named, at the 
 time and place within mentioned, as I am commanded. 
 
 Sheriff's Return to Fieri Facias Against Real Estate 
 
 By virtue of the v.ithin writ, I have seized and taken in execution (de- 
 scription of property levied on) which remains in my hands unsold for want 
 of buyers, and the residue of the execution of the said writ will appear by a 
 certain schedule or inquisition hereto annexed. 
 
 Writ of Capias ad Satisfaciendum. New Jersey 
 
 New Jersey, ss. : 
 
 The State of New Jersey to the sheriff of the County of M, greeting: 
 We command you that you take B, defendant, if he may be found in your 
 county, and him safely keep, so that you may have his body before our 
 Supreme Court at Trenton on the day 
 
 A. D. 19 , to satisfy A, plaintiff, dollars and 
 
 cents, which the said plaintiff lately, in our said court, recovered against the 
 said defendant, for his damages which he had sustained, as well on occasion 
 of an action of tort, in which action the said A was plaintiff and the said 
 B was defendant, as for the costs and charges by the said plaintiff about his 
 suit in that behalf expended, whereof the said defendant is convicted, as 
 appears to us of record. And have you then there this writ. Witness, 
 , Esq., Chief Justice at Trenton aforesaid, the day 
 
 of , in the year nineteen hundred and 
 
 Attorney. Clerk. 
 
 [For other forms see 7 Enc. of Forms, 972 et seq.]
 
 APPENDIX 943 
 
 Execution Against Property and Person, Massachusetts 
 
 Commonwealth of Massachusetts 
 M County, ss. : 
 
 To the sheriffs of our several counties or their deputies, greeting: 
 Whereas A, of , in our County of S, by the consideration of 
 
 our justices of our Superior Court, holden at , for and within 
 
 the County M aforesaid, on the Monday of last 
 
 to wit, on the day of , A. D. 19 , recovered judgment 
 
 against B, of , for the sum of dollars and 
 
 cents damage and dollars and 
 
 cents costs of suit, as to us appears of record, whereof execution remains 
 to be done : We command you, therefore, that of the goods, chattels or lands 
 of the said judgment debtor, within your precinct, you cause to be paid and 
 satisfied unto the said judgment creditor, at the value thereof, in money, the 
 aforesaid sums, being $ iv the whole, with interest thereon from 
 
 said day of the rendition of said judgment, and with cents 
 
 more for this writ, and thereof also to satisfy yourself for your own fees; 
 and for want of goods, chattels or lands of the said judgment debtor, to be 
 by him shown unto you, or found within your precinct, to the acceptance of 
 the said judgment creditor to satisfy the sums aforesaid, with interest as 
 aforesaid, Vv'e command you to take the body of the said judgment debtor, 
 and him commit unto either of our jails within your precinct, and detain in 
 3'our custody within either of our jails within your precinct, until he pay the 
 full sums above mentioned, with interest, and with your fees, or that he be 
 discharged by the said judgment creditor, or otherwise, by order of law. 
 Hereof fail not, and make return of this writ with your doings therein, into 
 our Supreme Court, at our clerk's office in , within our 
 
 County of M aforesaid, in sixty days from date of this writ. Witness, 
 , Esq., at the day of , 
 
 in the year of our Lord one thousand nine hundred and 
 
 Clerk. 
 
 [7 Enc. of Forms, 991. Substantially the form prescribed by the Act of 
 May 28, 1701, Laws of Mass. (1742)]. 
 
 WRIT OF ERROR 
 
 Fitz-Herbert's Natura Brevium 57 
 
 The King to his beloved and faithful L of T., greeting: 
 Because in the record and process, and in the giving of judgment of the 
 plaint which was before you and your companions our Justices of the Bench, 
 by our writ, between A and B of a record and process of an assize of novel 
 disseisin, which was summoned between them, and taken at S before our 
 beloved and faithful I. of T. and his companions justices, assigned, &c., con- 
 cerning tenements in W. which record and process we indeed for certain 
 causes caused to come before you, manifest error hath intervened, to the great 
 damage of him the said A as we have been informed by his grievous com- 
 plaint: We being willing that the error (if any shall be) in this behalf be 
 corrected in due manner, and that justice be done thereupon to the parties 
 aforesaid, as it ought, do command you, that if judgment thereof be given, 
 then that you send to us as well the record and process of the plaint afore- 
 said so had before yourselves, as also the record and process of the assize 
 aforesaid set before you, with all things touching them, under your seal, &c., 
 so that we may have them, &c., that having inspected, &c. 
 
 United States of America^ ss. : 
 
 The President of the United States 
 To the Honorable the Judges of the United States Circuit Court of Appeals 
 
 for the Second Circuit, 
 Greeting : 
 
 Because in the record and proceedings, as also in the rendition of the 
 judgment of a plea which is in the said Circuit Court of Appeals, before you, 
 or some of you, between A plaintiff and B defendant, a manifest error hath
 
 944 
 
 APrENDIX 
 
 liarpcncd, to the prcat damage of the said defendant B, as by his complaint 
 appears. We being wilHng tiiat error, if any hath been, sliould be duly cor- 
 rected, and full and speedy justice done to the parties aforesaid in this behalf, 
 do command you, if jutlKnient be therein given, that then under your seal, dist- 
 tinctly and openly, you send the record and proceedings aforesaid, with all 
 thing's concerning the same, to the Supreme Court of the United States, 
 together with this writ, so that you have the same at Washington, within thirty 
 davs from the date hereof, in the said Supreme Court, to be then and there 
 held, that the record and proceedings aforesaid being inspected, the said 
 Supreme Court may cause further to be done therein to correct that error, 
 what of right, and according to the laws and customs of the United States 
 should be done. 
 
 Witness the Honorable C D, Chief Justice of the said Supreme Court, 
 the day of in the year of our Lord one 
 
 thousand nine hundred and 
 
 (Signed) E. R, 
 
 Clerk of the Supreme Court of the United States. 
 Allowed bv : 
 
 (Signed) G. H., 
 
 Associate Justice of the Supreme Court of the United States.
 
 INDEX 
 
 ACCOUNT, 179 
 ACTIONS, 143 
 
 ADMINISTRATION, 
 
 collateral attack, 572 
 
 ALIENS, 
 
 parties, 133 
 
 ALTERNATIVE COMPLAINT, 327 
 
 form, 938 
 
 AMENDMENT OF JUDGMENTS, 531 
 
 APPEAL, 817 
 
 argument, 871 
 assignments of error, 863 
 divided court, 900 
 exceptions, 850 
 judgment, 907 
 law of the case, 903 
 parties, 828 
 pleading, 869 
 prejudicial error, 888 
 remittitur, 933 
 restitution, 925 
 reviewed by court, 877 
 supersedeas, 840 
 
 APPEARANCE, 301 
 
 ARGUMENT, 
 
 on appeal, 871 
 to jury, 419 
 
 ARREST OF JUDGMENT, 488 
 
 ASSIGNMENTS OF ERROR, 863 
 
 ASSUMPSIT, 197 
 
 ATTACHMENT, 
 
 mesne process, 636 
 
 AUDITA QUERELA, ^^i 
 BILL OF EXCEPTIONS, 850 
 
 60 — Qiv. Proc. 945
 
 946 INDEX 
 
 BILL OF PARTICULARS, 330 
 
 CAPIAS AD SATISFACIENDUM, 789 
 form, 94- 
 
 CASK, 
 
 action on the, 221 
 
 CASE-'MADF., 
 
 appeal, 857 
 
 CHALLENGES, 
 jurors, 345 
 
 CHARGE OF COURT, 420 
 
 CODE ACTIONS, 243 
 
 COGNOVIT, 509 
 
 COLLATERAL ATTACK ON JUDGMENTS, 546 
 
 COMMON COUNTS, 210 
 forms, 938 
 
 CONTRACTS, 
 
 joinder of plaintiffs, 57 
 joinder of defendants, 80 
 
 CONVICTS, 
 
 parties, 44 
 
 CORAM VOBIS, 533 
 
 CORPORATION, 
 party, 45 
 process, 291 
 
 COVENANT, 
 
 action of, 186 
 
 COUNTS, 
 
 joinder of, 315 
 
 COURT, 
 
 definition, 1 
 
 DEATH, 
 
 parties, 43 
 
 DEBT, 
 
 action of, 189 
 
 DECLARATION, 309 
 
 forms, 937 
 
 DELIVERY. 
 
 writ of, form, 941
 
 INDEX 947 
 
 DEMURRER TO EVIDENCE, 388 
 
 DETINUE, 
 
 action of, 225 
 
 DIRECTION OF VERDICT, 410 
 
 DISTRINGAS, 
 
 execution, 804 
 
 DOWER, 
 
 action of, 170 
 
 DUPLICITY, 313 
 
 EJECTMENT, 
 
 action of, 146 
 
 ELEGIT, 678 
 
 form, 939 
 
 EQUITABLE INTERESTS, 
 execution, 684 
 
 EQUITY, 
 
 parties, 52 
 
 ERROR, 
 
 writ of, 817 
 
 form, 943 
 
 ESTOPPEL, 
 
 by judgment, 594 
 
 ESTREPMENT, 177 
 
 EXCEPTIONS, 
 appeal, 850 
 
 EXECUTION, 647 
 
 audita querela, T]'^ 
 
 claims of strangers, 728 
 
 exemption, 718 
 
 forms, 939 
 
 levy, 704 
 
 lien of, 694 
 
 person, 788 
 
 possession of chattels, 802 
 
 possession of real property, 809 
 
 property subject to, 658 
 
 return, 758 
 
 sale, 736 
 
 satisfaction, 776 
 
 supplemental proceedings, 781 
 
 title acquired, 760
 
 948 INDEX 
 
 EXEMrTION FROM EXECUTION, 718 
 
 EXPERTS. 
 
 witness fees, 375 
 
 FIERI FACIAS, 
 
 forms, 940 
 
 FIXTURES, 
 
 execution, 666 
 
 FORCIBLE ENTRY AND DETAINER, 
 action of, 164 
 
 FORMS. 
 
 See Appendix, 937 
 
 HABEAS CORPUS AD TESTIFICANDUM, 382 
 
 HABERE FACIAS SEISINAM, 
 form, 939 
 
 INFANTS, 
 
 parties, 104 
 
 INSANE PERSONS, 
 parties, 124 
 
 INSTRUCTIONS TO JURY, 420 
 
 INTERLOCUTORY JUDGMENT, 
 appeal, 822 
 
 INTERPLEADER, 
 sheriff's 733 
 
 JOINDER OF CAUSES OF ACTIONS, 320 
 
 JUDGE 
 
 advice by, 16 
 immunity from suit, 22 
 interest in case, 18, 19 
 
 JUDGMENT, 495 
 action on, 638 
 amendment of, 531 
 appeal and error, 907 
 collateral attack, 546 
 confession, 509 
 default, 522 
 estoppel by, 594 
 form, 939 
 lien of, 621 
 merger, 577
 
 INDEX 
 
 JUDGMENT— Cow/mH^tf 
 
 non obstante veredicto, 4S6 
 
 non pros., 530 
 
 opening and vacating, 540 
 
 JURY, 
 
 challenges, 345 
 
 custody and conduct, 438 
 
 JURY PROCESS. 342 
 
 JURY TRIAL, 
 
 constitution, 332 
 
 JUSTICE OF THE PEACE, 11 
 
 LAW OF THE CASE, 903 
 
 LEVARI FACIAS, 
 form, 939 
 
 LEVY, 
 
 execution, 704 
 
 LIEN OF EXECUTION, 694 
 
 LIEN OF JUDGMENTS, 621 
 
 MANDAMUS, 259 
 
 MARRIED WOMEN, 
 parties. III 
 
 MERGER, 
 
 judgments, 577 
 
 MISJOINDER, 
 
 causes of action, 320 
 
 MOOT CASE, 31 
 
 MOTION TO DISMISS, 407 
 
 MOTIONS AFTER VERDICT, 470 
 
 MUNICIPAL PROPERTY, 
 execution, 673 
 
 NEW TRIAL, 472 
 
 NONSUIT, 
 
 motion for, 393 
 
 OPEN AND CLOSE, RIGHT TO, 384 
 
 949
 
 950 
 
 PARTIES, 35 
 
 appeal and error, 82S 
 defendants, 80 
 execution, 650 
 plaintiffs, 57 
 personal disabilitj-, 104 
 remedial interest, 47 
 
 PARTNERS, 
 
 parties, 67 
 
 PTtt'ENTS, 
 
 execution against, 667 
 
 PERSON, 
 
 execution against, 788 
 
 PLEADING, 
 
 declaration, 309 
 
 to assignments of error, 86g 
 
 PLEDGES, 
 
 execution, 687 
 
 POSSESSION, 
 
 writ of, 8og 
 
 form, 941 
 
 PROBATE, 
 
 collateral attack, 572 
 
 PROCESS, 2S1 
 
 PROCEEDINGS IN REM, 
 collateral attack, 563 
 
 PROHIBITION, 266 
 
 PROPERTY, 
 
 execution against, 658 
 
 PUBLIC CIVIL ACTIONS, 253 
 
 PUBLIC FRANCHISE, 
 execution, 670 
 
 QUO WARRANTO, 253 
 
 REAL PROPERTY, 
 execution, 677 
 
 REHEARING ON APPEAL, 874 
 
 REMAINDERS, 
 
 execution, 681 
 
 REMEDIAL INTEREST, 47 
 
 INDEX
 
 INDEX 951 
 
 REMITTITUR, 
 
 appeal and error, 933 
 
 REPLEVIN, 
 
 action of, 238 
 execution in, 80S 
 
 REPUGNANCY, 
 
 declaration, 327 
 
 RES JUDICATA, 577 
 
 RESTITUTION, 
 
 on reversal of judgment, 925 
 
 RETURN, 
 
 conclusiveness of, 298 
 
 execution, 758 
 
 service of process, 296 
 
 SATISFACTION, 
 execution, 776 
 
 SCIRE FACIAS, 639 
 
 SHARES OF STOCK, 
 execution, 669 
 
 SHERIFF, 
 
 duty in making levy, 704 
 interpleader, 733 
 sale by, 736 
 
 SPECIAL FINDINGS, 465 
 
 SPECIAL VERDICT, 463 
 
 STARE DECISIS, 897 
 
 STATE, 
 
 parties, 41 
 
 STATEMENT OF PLAINTIF'S CLAIM, 309 
 
 SUBPOENA, 371 
 
 SUBPOENA DUCES TECUM, 378 
 
 SUMMONS, 
 
 forms, 937 
 service of, 286 
 
 SUPERSEDEAS, 840 
 
 SUPPLEMENTARY PROCEEDINGS, 781
 
 052 INDEX 
 
 TENANTS IN COMMON, 
 execution, 690 
 parties, 65 
 
 TITLE, 
 
 by sheriff's sale, 760 
 
 TRESPASS, 
 
 action of, 213 
 
 TRIAL, 
 
 modes of, 331 
 
 TORTS, 
 
 joinder of plaintiffs, 62 
 defendants, 88 
 
 TROVER, 
 
 action of, 234 
 
 UNCERTAINTY, 
 
 declaration, 325 
 
 UNINCORPORATED ASSOCIATIONS, 
 parties, 39 
 
 VACATING JUDGMENTS, 540 
 
 VENUE OF ACTIONS, 269 
 
 VENDITIONI EXPONAS, 
 form, 940 
 
 VERDICT, 458 
 
 direction of, 410 
 impeachment of, 451 
 special, 463 
 
 WAIVER OF APPEAL, 825 
 
 WASTE, 
 
 action of, 175 
 
 WITNESSES, 
 
 process for, 370 
 
 WRIT, 
 
 original, 281 
 forms, 937 
 
 WRIT OF ERROR, 817 
 form, 943
 
 n