DIGEST OF THE CASES REPORTED IN ANNOTATED CASES (American and English) 1918 C TO 1918 E With Table of Cases Reported and Index of the Annotations EDWARD THOMPSON COMPANY BANCROFT-WHITNEY COMPANY NORTHPORT, L. I., N. Y. SAN FRANCISCO 1919 1919 reaoia VII aatATCMMA f"\ r r > *"i o r A t COPYRIGHT, 1919 BY EDWARD THOMPSON COMPANY AND BANCROFT-WHITNEY COMPANY A, Table of Cases Reported IN ANN. CAS. VOLUMES 1918C-1918E Abbott, People ex rel. Kroner v. 274 111. 380 1918D 450 Abrams, Shannon v. 98 Kan. 26 1918E 502 Acme Mfg. Co., Krachanake v. 175 N. Car. 435 1918E 340 Adams Express Co., Reynolds v. 172 N. Car. 487 ' 1918C 1071 Aetna Explosives Co., McClin- tock, etc. Co. v. 260 Pa. St. 191 1918E 1078 Aetna Life Ins. Co. v. Bradford 45 Okla. 70 1918C 373 Agri Mfg. Co. v. Atlantic Fertili- zer Co. 129 Md. 42 1918D 396 Ahlgren v. Walsh 173 Gal. 27 1918E 751 Ainsworth, Wh'te v. 62 Colo. 513 1918E 179 Aktiengesellschaft, etc. Hugh Stevenson & Sons v. [1918] 2 A. C. 239 1918D 575 Aktieselskabet Korn-Og, etc. v. Rederiaktiebolaget, etc. 250 Fed. 935 1918E 491 Albright v. Albright 21 N. Mex. 606 1918E 542 Alexander, Holmes v. 52 Okla. 122 1918D 1134 American Credit Indemnity Co., Cauman v. 229 Mass. 278 . . 1918E 841 American Graphophone Co., Bos- ton Store v. 246 U. S. 8 1918C 447 American Tobacco Co., People's Tobacco Co. v. 246 U. S. 79 1918C 537 American Woodenware Mfg. Co. v. Schorling 96 Ohio St. 305 1918D 318 Angelo, State v. 109 Miss. 624 1918D 237 Ann Arbor, Schenk v. 196 Mich. 75 1918E 267 Arlington, Saunders v. 147 Ga. 581 1918D 907 Armstrong v. Banking Trust Co. 96 Kan. 722 1918D 972 Armstrong v. Modern Woodmen 93 Wash. 352 1918E 263 Armstrong v. Morrow 166 Wis. 1 1918E 1156 Arras Brothers, Gibbs v. 222 N. Y. 332 1918D 1M1 Atchison, etc. R. Co., Jacobs v. 97 Kan. 247 1918D 384 Atchison, etc. R. Co. v. United States 244 U. S. 336 1918C 794 Atlantic Fertilizer Co., Agri Mfg. Co. v 129 Md. 42 .... 1918D 39ft Avery v. Thompson 117 Me. 120 1918E 1122 Baca v. Unknown Heirs 20 N. i Mex. 1 1918C 612 Bache v. Central Coal, etc. Co. 127 Ark. 397 1918E 198 Bailey, Gretna v. 141 La. 625 1918E 566 Bailey, Modern Brotherhood, etc. v. 50 Okla. 54 1918E 744 Baldwin, Corbin v. 92 Conn. 99 1918E 932 Balfe, Rose v. 223 N. Y. 481 1918D 238 Bankers' Trust Co., Martin v. 18 Ariz. 55 1918E 1240 Banking Trust Co., Armstrong v. 96 Kan. 722 1918D 972 Bank of Commerce, etc. Co. v. Burke 135 Tenn. 19 1918C 439 Bank of Grand Prairie, Breitzke v. 124 Ark. 495 1918D 792 Bannwart, Creditors National Clearing House v. 227 Mass. 579 1918C 130 Barber v. Detroit, etc. R. Co. 197 Mich. 643 1918E 1109 Baron, Morris 'v. [1918] A. C. 1 (Eng.) 1918C 1197 Bateman, Cleveland v. 21 N. Mex. 675 191SE 1011 Bateman, Roswell v. 20 N. Mex. 77 1918D 426 Baughman v. Baughman 283 111. 55 1918E 895 Bawlf Grain Co. v. Ross 55 Can. Sup. Ct. 232 1918E 319| Baxter v. Woodward 191 Mich. 379 1918C 946 Beard, Jr. v. Beard 173 Ky. 131 1918C 832 Becker v. London Assurance Corp. [1918] A. C. 101 .... 1918C 367 Bennett, Emery v. 97 Kan. 490 1918D 437 Bennetts, Butte v. 51 Mont. 27 1918C 1019- AXX. CAS. DIGEST (191M 1 1018E). Bennett v. Stockwell 197 Mich. 50 1918E 1193 Bergdoll, Philadelphia v. 252 Pa. 545 1918C 1141 Bergman v. Evans 92 Wash. 158 1918C 848 Berry v. Marion County Lumber Co. 108 8. Car. 108 1918E 877 Berry, Modern Woodmen v. 100 Neb. 820 1918D 302 Betti, Silverman v. 222 Mass. 142 1918C 90 Betts v. Massachusetts Bonding, etc. Co. 90 N. J. Law 632 . . 1918E 520 Bibb, Merrimac Mfg. Co. v. 124 Ark. 189 1918C 951 Bishop Randal Hospital v. Hart- ley 24 Wyo. 408 1918E 1172 Blackorby v. Friend, Crosby & Co. 134 Minn. 1 1918E 1199 Black v. Woodruff-^193 Ala. 327 1918C 969 Blair, Hennessy v. 107 Tex. 39 1918C 474 Blair Township, Traverse City v. 1UO Mich. 313 1918E 81 Blake, Woodward v. 38 N. Dak. 38 1918E 552 Blatti, Patterson v. 133 Minn. 23 1918D 63 Blume v. Chicago*, etc. R. Co. 133 Minn. 348 1918D 297 Board of County Com'rs v. Bruce 51 Okla. 541 1918E 1060 Board of County Com'rs, Camp- bell v. 97 Kan. 68 1918D 533 Board of Trade v. United States 246 U. S. 231 1918D 1207 Bodwell v. Webster 98 Neb. 664 1918C 624 Boiling, Western Union Tel. Co. v. 120 Va. 413 1918C 1036 Bolton v. Walker 197 Mich. 699 1918E 1007 Boney v. Dublin 145 Ga. 339 . .. 1918E 176 Bonner Oil Co. v. Gaines 108 Tex. 232 1918C 574 Bonynge v. Frank 89 N. J. L. 239 1918D 211 Bordwell v. Williams 173 Cal. 283 1918E 358 Bossert v. Dhuy 221 N. Y. 342 1918D 661 Boston Elevated R. Co., Walsh v. 222 Mass. 275 1918C 443 Boston, etc. R. R. v. Piper 246 U. S. 439 1918E 469 Boston, etc. R. R., Shaughnessy v. 222 Mass. 334 1918C 376^ Boston Safe Deposit, etc. Co. v. Collier 222 Mass. 390 1918C 962 Boston Safe Deposit, etc. Co., Eaton v. 240 U. S. 427 1918D 90 Boston Store v. American Graph- ophone Co. 246 U. S. 8 .... 1918C 447 Bontlier v. Maiden 226 Mass. 479 1918C 910 Boutlier v. Maiden Electric Co. 226 Mass. 479 1918C 910 Boutlier v. Suburban Gas, etc. Co. 226 Mass. 479 1918C 910 Box Butte County, Chicago, etc. R. Co. v. 99 Neb. 208 1918D 1037 Boyer, Webster v. 81 Ore. 485 1918D 988 Bradford. Aetna Life Ins. Co. v. 45 Okla. 70 1918C 373 Bradley, Gulf, etc. It. Co. v. 110 Miss. 152 1918D 554 Brady, People v. 272 111. 401 . . 1918C 540 Brandt v. Fresno Hotel Co. 174 . Cal. 789 1918D 346 Breitzke v. Bank of Grand Prairie 124 Ark. 495 1918D 792 Brinson, Cohn v. 112 Miss. 348 1918E 134 Brooks v. Campbell 97 Kan. 208 1918D 1105 Brown, Childers v. 81 Ore. 1 1918D 170 Brown, Johnson v. 138 Tenn. 395 1918C 672 Brown, People v. 273 111. 1G9 1918D 772 Browne, Putnam v. 162 Wis. 524 1918C 1085 Browne, Smith v. 222 N. Y. 222 1918D 834 Bruce, Board of County Com'rs v. 51 Okla. 541 1918E 1000 Buchanan v. Orange 118 Va. 511 1918D 391 Buck v. Rex 55 Can. Sup. Ct. 133 1918D 1023 Buhrnson v. Stoner 275 111. 41 1918D 1054 Bulletin Co. v. Sheppard 55 Can. Sup. Ct. 454 1918E 151 Bumpas, Florence Hotel Co. v. 194 Ala. 69 1918E 252 Bunch, Eminent Household v. 115 Miss. 512 ' 1918C 110 Burke, Bank of Commerce, etc. Co. v. 135 Tenn. 19 1918C 430 Burke, United States Fidelity, etc. Co. v. 238 Fed. 881 1918C 93 Burnett v. Greenville 106 S. Car. 255 1918C 363 Burns, Houston v. [1918] A. C. 337 1918C 434 Bush v. Stephens 131 Ark. 133 1918E 259 Buskirk-Rutledge Lumber Co., Cross v. 139 Tenn. 79 1918D 983 Butler v. Butler 169 N. Car. 584 1918E 638 Butler v. Eminent Household 116 Miss. 85 1918D 1137 Butler v. Kansas City 97 Kan. 239 1918D 801 Butte v. Bennetts 51 Mont. 27 1918C 1019 Byrd, Delancey v. 110 Miss. 598 1918D 668 Cade, Power v. 112 Miss. 88 . . 1918E 1146 Caddo River Lumber Co., Case v. 126 Ark. 240 1918C SO Cain v. Osier 168 Iowa 59 1918C 1 120 Calgary, Grand Trunk Pacific R. Co. v. 55 Can. Sup. Ct. 103 1918D 724 Campbell v. Board of County Com'rs 97 Kan. 68 1918D 533 Campbell, Brooks v. 97 Kan. 208 1918D HOo Campbell, Ritzman v. 93 Ohio St. 246 1918D 248 Campbell v. Sigmon 170 N. Car. 348 1918C 40 Card, York Shore Water Co. v. 116 Me. 483 1918D 945 Carlton, Pullen v. [1918] 2 K. B. 207 1918D 1201 Carolina Distributing Co., Har- ris v. 172 N. Car. 14 1918C 329 TABLE OF CASES REPORTED. Carroll, Strasner v. 12.5 Ark. 34 1918E 306 Carr v. Washington, etc. Ry. 44 App. Cas. (D. C.) 533 1918D 818 Carter v. Papineau 222 Mass. 464 1918C 620 Carter, United States v. 250 Fed. 299 1918E 36 Casdagli v. Casdagli [1918] P. 89 1918E 669 Case v. Caddo River Lumber Co. 126 Ark. 240 1918C 80 Cassady v. Mote 184 Ind. 173 1918E 68 Cassidy, Scovill Mfg. Co. v. 275 111. 462 1918E 602 Cauman v. American Credit In- demnity Co. 229* Mass. 278 1918E 841 Cavell. Memphis St. R. Co. v. 135 Tenn. 462 1918C 42 Central Coal, etc. Co., Bache v. 127 Ark. 397 1918E 198 Central Pacific R. Co. v. Lane 46 App. Cas. (D. C.) 374 .... 1918C 1002 Ceres Investment Co., Jones v. 60 Colo. 562 1918C 429 Chafor v. Long Beach 174 Cal. 478 1918D 106 Chamberlain, Townsend v. 81 Ore. 163 1918C 330 Chambers v. Minneapolis, etc. R. Co. 37 N. Dak. 377 1918C 954 Champe, Weadock v. 193 Mich. 553 1918C 874 Chancey v. Norfolk, etc. R. Co. 174 X. Car. 351 1918E 580 Chapman v. Fargo 223 N. Y. .32 1918E 1054 Chaplin v. Griffin 252 Pa. St. 271 1918C 787 Charles R. Davidson & Co. v. M'Robb [1918] 2 A. C. 304 . . 1918D 670 Chicago, etc. R. Co., Blume v. 133 Minn. 348 1918D 297 Chicago, etc. R. Co. v. Box Butte County 99 Xeb. 208 1918D 1037 Chicago, etc. R. Co. v. Greenberg 139 Minn. 428 1918E 456 Chicago, etc. R. Co., Ochs v. 135 Minn. 323 1918E 337 Chicago, etc. R. Co. v. Redding 124 Ark. 368 1918D 183 Childers v. Brown 81 Ore. 1 1918D 170 Chilvers, Crook v. 99 Xeb. 684 1918E 90 Chreste v. Commonwealth 171 Ky. 77 1918E 122 Cincinnati, etc. R. Co., Davis' Arlm'r v. 172 Ky. 55 1918E 414 Citi/ens Tel. Co., Harbaugh v. 190 Mich. 421 1918E 117 City of Xew York Ins. Co., Wal- ler v. 84 Ore. 284 1918C 139 Clark v. Detroit, etc. R. Co.^ 197 Mich. 489 1918E 1068 Cleveland, Bateman v. 21 X. Mex. 675 1918E 1011 Cleveland, etc. Traction Co., Parkside Cemetery Assoc. v. 93 Ohio St. 161 1918C 1051 Cleveland v. Watertown 222 X. Y. 159 1918E 574 Clodfelters Will, In re 171 X. Car. 528 1918E 281 Cohn v. Brinsou 112 Miss. 348 1918E 134 Cole, Matter of 219 X. Y. 435 1918E 807 Collier, Boston Safe Deposit, etc. Co. v. 222 Mass. 390 1918C 962 Collins, Linn v. 77 W. Va. 592 1918C 86 Collins v. Skillings 224 Mass. 275 1918D 424 Collison, Stephens v. 274 111. 389 1918D 559 Columbia Life, etc. Co., French v. 80 Ore. 412 1918D 484 Commonwealth, Chreste v. 171 Ky. 77 1918E 122 Commonwealth v. John T. Con- nor Co. 222 Mass. 299 1918C 337 Connecticut Co., Dwy v. 89 Conn. 74 1918D 270 Connecticut Fire Ins. Co. v. W. H. Roberts Lumber Co. 119 Ya. 479 1918E 1045 Cooke, Sheffield v. 39 R. I. 217 1918E 961 Cook, Kelso v. 184 Ind. 173 ... 1918E 68 Coombs v. Southern Wisconsin R. Co. 162 Wis. Ill 1918C 532 Corbin v. Baldwin 82 Conn. 99 1918E 932 Corless, Porizky v. 46 Utah 495 1918D 198 Corless, Saville v. 46 Utah 495 1918D 198 Cottle, Raleigh County Court v. 79 W. Va, 661 1918D 510 Creditors National Clearing House v. Bannwart 227 Mass. 579 1918C 130 Crews, St. Louis, etc. R. Co. v. 51 Okla. 144 1918C 823 Crites v. Williamette Valley Lumber Co. 87 Ore. 10 ... 1918D 1050 Crook v. Chilvers 99 Neb. 684 1918E 90 Crooker, Savior v. 97 Kan. 624 1918D 473 Cross v. Buskirk-Rutledge Lum- ber Co. 139 Tenn. 79 1918D 983 Grouse v. Wheeler 62 Colo. 51 1918E 1074 Crowe, State v. 130 Ark. 272 1918D 460 Cully, Palmer v. 52 Okla, 454 1918E 375 Curry, Button v. 93 Ohio St. 339 1918C 770 Curtis, Manson v. 223 N. Y. 313 1918E 247 Dagenhart, Hammer v. 247 U. S. 251 1918E 724 Dahl, Weston v. 162 Wis. 32 . . 1918C 922 Daniels, Park City v. 46 Utah 554 1918E 107 Daughtry. Robinson v. 171 X. Car. 200 1918E 1186 Davis' Adm'r v. Cincinnati, etc. R. Co. 172 Ky. 55 1918E 414 Davis v. Dunn 90 Vt. 253 1918D 994 Davis v. Seavey 95 Wash. 57 . . 1918D 314 Davis v. State 30 Ida. 137 1918D 911 Davis, State v. 171 N. Car. 809 1918E 1168 Davis, State v. 39 R. I. 276 1918C 563 Dayton v. South Covington, etc. St. R. Co. 177 Ky. 202 1918E 229 De Cicco v. Schweizer 221 N. Y. 431 1918C 816 Delancey v. Byrd 110 Miss. 598 1918D 668 6 ANN. CAS. DIGEST (1918C-1918E). Des Moines, Teeters v. 173 Iowa 473 1918C 659 Detroit, etc. R. Co., Barber v. 197 Mich. 643 1918E 1109 Detroit, etc. R. Co. Clark v. 197 Mich. 489 1918E 1068 Dhuy, Bossert v. 221 N. Y. 342 1918D 661 Diamond Ice, etc. Co., Perry Bros, v. 92 Wash. 105 1918C 891 Dickinson v. Hanley 193 Mich. 585 1918C 1063 Dickinson, National Union Fire Ins. Co. v. 92 Wash. 230 .. 1918C 1042 Dickinson v. Stiles 246- U. S. 631 1918E 501 Dick, Kerr & Co., Metropolitan Water Board v. [1918] A. C. 119 1918C 390 Dils, Parsons v 172 Ky. 774 . . 1918E 796 District Board, State ex rel. Con- way v. 162 Wis. 482 1918C 584 District of Columbia, Hotchkiss v. 44 App. Cas. (D. C.) 73 . . 1918D 683 Dixon, Wren v. 40 Nev. 170 . . 1918D 1064 Dodge, New York Life Ins. Co. v. 246 U. S. 357 1918E 593 Dodge v. North End Improve- ment Assoc 189 Mich. 16 . . 1918E 485 Dodgson, Powers v. 194 Mich. 133 1918D 422 Donaldson, Great Northern R. Co. v. 246 U. S. 121 1918C 581 Douglas v. Jenkins 146 Ga. 341 1918C 322 Drabelle, Pitman v. 267 Mo. 78 1918D 601 Dublin, Boney v 145 Ga. 339 . . 1918E 176 Dunaway, Ralston v. 123 Ark. 12 1918C 870 Dunn, Davis v. 90 Vt. 253 1918D 994 Dunn, State ex reL Corporation Commission v. 174 N. Car. 679 1918D 1086 Dwight, Smith v. 80 Ore. 1 .. 1918D 563 Dworak v. Supreme Lodge 101 Neb. 297 1918D 1153 Dwy v. Connecticut Co. 89 Conn. 74 1918D 270 Dynamit Actien-Gesellschaft etc. v. Rio Tinto Co. [1918] 2 A. C. 260 1918D 583 Easterling, Pearson v. 107 S. Car. 265 1918D 980 Eaton v. Boston Safe Deposit, etc. Co. 240 U. S. 427 1918D 90 Eisman, Hanover Fire Ins. Co. v. 45 Okla. 639 1918D 288 Eklund, O'Neill-Adams Co. v. 89 Conn. 232 1918D 379 Elisha, Kemp v. [1918] 1 K. B. (Eng.) 228 1918E 730 Elling v. Fine 53 Mont. 481 1918C 752 Ellison, State ex rel. Tiffany v. 266 Mo. 604 1918C 1 Embury-Martin Lumber Co., Tuttle v. 192 Mich. 385 1918C 664 Emery v. Bennett 97 Kan. 490 1918D 437 Eminent Household v. Bunch 115 Miss. 512 1918C 110 Eminent Household, Butler v. 116 Miss. 85 1918D 1137 Epley v. Hall 97 Kan. 549 .... 1918D 151 Ertel Bieber & Co. v. Rio Tinto Co. [1918] 2 A. C. 260 ... 1918D 583 Evans, Bergman v. 92 Wash. 158 1918C 848 Fargo, Chapman v. 223 N. Y. 32 1918E 1054 Fargo, Mountain v. 38 N. Dak. 432 1918D 826 Farmers' Loan, etc. Co. v. Mort- imer 219 N. Y. 290 1918E 1159 Fellows ex rel. Union Trust Co., First National Bank v. 244 U. S. 416 1918D 1169 Fidelity, etc. Co., Wisconsin Zinc Co. v. 162 Wis. 39 1918C 399 Fielder v. Pemberton 136 Tenn. 440 1918E 905 Fields v. Vizard Investment Co. 168 Ky. 744 1918D 336 Fine, Elling v. 53 Mont. 481 1918C 752 First National Bank v. Fellows ex rel. Union Trust Co. 244 U. S. 416 1918D 1169 First National Bank, United States v. 250 Fed. 299 1918E 36 Fitzpatrick v. Owens 124 Ark. 167 1918C 772 Florence Hotel Co. v. Bumpas 194 Ala. 69 1918E 252 Florida East Coast R. Co. v. Peters 72 Fla. 311 1918D 121 Florida East Coast R. Co., State ex rel. Railroad Com'rs v. 72 Fla. 379 1918E 1206 Flynn v. Flynn 283 111. 206 ... 1918E 1034 Flynn, Knopfler v. 135 Minn. 333 1918E 538 Forbes, United States v. 250 Fed. 299 1918E 36 Ford, Upjohn v. [1918] 2 K. B. 48 1918E 294 Forman v. Mutual Life Ins. Co. 173 Ky. 547 1918E 880 Fowles, Matter of 222 N. Y. 222 1918D 834 Francis, Martin v. 173 Ky. 529 1918E 289 Frank, Bonynge v. 89 N. J. L. 239 1918D 211 Franke v. Murray 248 Fed. 865 1918D 98 Frank v. South 175 Ky. 416 . . 1918E 682 Fredericksburg Lodge, Grinnan v 118 Va. 588 1918D 729 Freeman, Wilson v. 108 Tex. 121 1918D 1203 French v. Columbia Life, etc. Co. 80 Oregon 412 1918D 484 French, State ex rel. Taylor v. 96 Ohio St. 172 1918C 896 Fresno Hotel Co., Brandt v. 174 Cal. 789 1918D 346 Fresno Hotel Co., Sweet v. 174 Cal. 789 1918D 346 Frew v. Secular 101 Neb. 131 . . 1918E 511 Friend, Crosby & Co., Blackorby v. 134 Minn. 1 1918E 1199 Gaines, Bonner Oil Co. r. 108 Tex. 232 1918C 574 Gansley, People v. 191 Mich. 357 .' . 1918E 165 Gately-Haire Co. v. Niagara Fire Ins. Co. 2ai N. Y. 162 1918C 115 TABLE OF CASES KEPOKTED. Gault, Stevenson v. 131 Ark. 397 : 1918E 433 George Wiedemann Brewing Co., Will's Adm'r v. 171 Ky. 681 1918E 62 Qibbs v. Arras Brothers 222 N. Y. 332 1918D 1141 Gibson v. Payne 79 Oregon 101.1918C 383 Gilbert, Shuman v. 229 Mass. 225 1918E 793 Gilchrist v. Mystic Workers of the World 188 Mich. 466 ... 1918C 757 Gillen, Haverhill Strand Theatre v. 229 Mass. 413 1918D 650 Stephens, Bush v. 131 Ark. 133 1918E 259 Stephens v. Collison 274 111. 389 1918D 559 Stevenson v. Gault 131 Ark. 397 '. 1918E 433 Stewart's Estate 253 Pa. St. 277 1918E 1216 Stewart. State ex rel. Campbell v. 54 Mont. 504 1918D 1101 Stiles, Dickinson v. 246 U. S. 631 1918E 501 Stockwell, Bennett v. 197 Mich. 50 1918E 1193 Stoner, Buhrnson v. 275 111. 41 1918D 10.14 Strasner v. Carroll 125 Ark. 34 1918E 306 Suburban Gas, etc. Co., Bout- lier v. 226 Mass. 479 1918C 910 Succession of Pon* 142 La, 721 1918D 939 Suits v. Order of United Com- mercial Travelers 139 Minn. 246 . . 1918E 508 TABLE OF CASES REPOKTED. 13 Sulhvold v. St. Paul. 138 Minn. 271 1918E 835 Sunderland Bros. Co. v. Missouri Pacific R. Co. 101 Neb. 119 . . 1918D 1120 Supreme Council, Hollingsworth v. 175 X. Car. 615 1918E 401 SuprenW Lodge, Dworak v. 101 Xeb. 297 1918D 1153 Sweet v. Fresno Hotel Co. 174 Cal. 789 1918D 346 Taylor, Kehl v. 275 111. 346 ... 1918D " 948 Taylor, Lancaster Electric Light Co. v. 168 Ky. 179 1918C 591 Teasley, State ex rel. Brassell v. 194 Ala. 574 1918E 347 Teeters v. Des Moines 173 la. 473 1918C 659 Ten Broeck, Holt v. 134 Minn. 458 1918E 256 Thomas v. Scougale 90 Wash. 162 1918C 452 Thomas v. State 117 Miss. 532 1918E 371 Thompson, Avery v. 117 Me. 120 1918E 1122 Thwing v. McDonald 134 Minn. 148 1918E 420 Tingley v. Muller [1917] 2 Ch. 144 1918C 726 Tobey v. Kilbourne 222 Fed. 760 1918C 470 Toledo, etc. R. Co., People ex rel. Golconda Northern Ry. v. 280 111. 495 1918D 224 Toronto v. J. F. Brown Co. 55 Can. Sup. Ct. 153 1918D 888 Toronto v. Lambert 54 Can. Sup. Ct, 200 1918D 57 Townsend v. Chamberlain 81 Oregon 163 1918C 330 Toy v. Mackintosh 222 Mass. 430 1918C 1188 Trading Stamp Cases 166 Wis. 613 1918D 707 Travelers' Ins. Co., -Kosman v. 127 Md. 689 1918C 1047 Traverse City v. Blair Town- ship 190 Mich. 313 1918E 81 Tuttle v. Embury-Martin Lum- ber Co. 192 Mich. 385 . 1918G 664 Twin Citv Ice, etc. Co., Moore v. 92 Wash. 608 1918D 540 Union Securities Co. v. Smith 93 Wash. 115 1918E 710 Union Trust Co., Poole v; 191 Mich. 162 1918E 622 United Brokers Co. v. Southern Pacific Co. 86 Oregon 607 . . 1918D 814 United States, Atchison, etc. R. Co. v. 244 U. S. 336 1918C 794 United States, Board of Trade v. 246. U- S. 231 1918D 1207 United States v. Carter 250 Fed. .299 1918E 36 United States Fidelity, etc. Co. v. Burke 238 Fed. 881 1918C 93 United States v. First Xational Bank 250 Fed. 299 1918E 36 United States v. Forbes 250 Fed. 299 1918E 36 United States ft hie Co. v. Oak Creek 247 U. S. 321 1918E 748 United States, Maryland Dredg- ing, etc. Co. v. 241 U. S. 184 \ 1918E 32 United States v. Meyer 241 Fed. 305 1918C 704 United States v. Xormile 239 U. S. 344 1918E 34 United States, Saalfield v. 246 U. S. 610 1918E 1 Unknown Heirs, Baca v. 20 X. Mex. 1 1918C 612 Upjohn v. Ford [1918] 2 K. B. 48 1918E 294 Upjohn v. Hitchens [1918] 2 K. B. 48 1918E 294 Van Xuys Lighting District, People ex rel. Amestoy Estate Co. v. 173 Cal. 792 1918D 255 Yansant, Martin v. 99 Wash. 106 1918D 1147 Vaughan's Adm'r, Southern R. Co. v. 118 Va. 692 1918D 842 Vereinigte Koenigs, etc. v. Rio Tinto Co. [1918] 2 A. C. 260 1918D 583 Yiosca v. Landfried 140 La. 609 1918C 1193 Virginian R,. Co., Harper v. 76 W. Va. 788 1918D 1081 Virginia R., etc. Co. v. O'Flaher- ty 118 Va. 749 1918D 471 Vizard Investment Co., Fields v. 168 Ky. 744 1918D 336 Vogt v. Louisville 173 Ky. 119 1918E 1040 Vollmer- Clear water Co., McKee- han v 30 Idaho 505 1918E 1197 Wagner, Weekly v. 76 W. Va. 236 1918E 630 Walker, Bolton v. 197 Mich. 699 1918E 1007 Walker v. Richmond 173 Ky. 26 1918E 1084 Waller v. Citv of New York Ins. Co. 84 Oregon 284 1918C 139 Walsh, Ahlgren v. 173 Cal. 27 1918E 751 Walsh v. Boston Elevated R. Co. 222 Mass. 275 1918C 443 Walsh v. Keith 196 Mich. 42 . . 1918E 217 Walsh's Estate 196 Mich. 42 1918E 217 Wasco County v. New England Equitable Ins. Co. 88 Oregon 465 1918E 656 Washington, etc. Ry., Carr v. 44 App. Cas. (D. C.) 533 1918D 818 Washington Safety Deposit Co., Schaefer v. 281 111. 43 1918C 906 Washington, Yazoo, etc. R. Co. v. 113 Miss. 105 1918E 813 Watertown. Cleveland v. 222 N. Y. 159 1918E 574 Weadock v. Champe 193 Mich. 553 19WC 874 Webster, Bodwell v. 98 Neb. 664 1918C 624 Webster v. Boyer 81 Oregon 485 1918D 988 Weekly, Jeffreys v. 81 Oregon 140 1918D 690 Weekly v. Wagner 76 W. Va. 236 1918EI 630 Weeks, Paulson, v. 80 Ore. 468 1918D 741 Weigle. State ex rel. Sperry, etc. Co. v. 166 Wis. 613 * . 1918D 707 14 ANN. CAS. DIGEST (1918C-1918E). Weil, Standard Brewing Co. v. 129 Md. 487 1918D 1143 Weisman v. New York 210 N. Y. 178 1918E 1023 Welch v. Hannie 112 Miss. 79 1918C 325 Welch, Insurance Co. v. 49 Okla. 620 1918E 471 Welles, Portuguese-American Bank v. 242 U. S. 7 1918D 643 Weilraan, State v. 102 Kan. 503 1918D 1006 Wells v. Hansen 97 Kan. 305 . . 1918D 230 Wester field, Lake County v. 273 111. 124 1918E 102 Western Union Tel. Co. v. Boi- ling 120 Va. 413 118C 1036 Western Union Tel. Co. v. Lee 174 Ky. 210 1918C 1026 Western Union Tel. Co., Pfiester v. 282 111. 69 1918D 738 Weston v. Dahl 162 Wis. 32 . . 1918C 922 West, State ex rel. Jones v. 139 Tenn. 522 1918D 749 West Virginia Pulp, etc. Co., Lewis v. 76 W. Va. 103 1918D 754 Wheeler, Crouse v. 62 Colo. 51 1918E 1074 Whitaker, State v. 103 S. Car. 210 1918E 467 White v. Ainsworth 62 Colo. 513 1918E 179 W. H. Roberts Lumber Co., Connecticut Fire Ins. Co. v. 119 Va. 479 1918E 1045 Wiggins v. Industrial Accident Board 54 Mont. 335 1918E 1164 Willamette Valley Lumber Co., Crites v. 87 Oregon 10 1918D 1050 Williams, Bordwell v. 173 Cal. 283 1918E 358 Williamsburg City Fire Ins. Co., Hankins v. 96' Kan. 706 ... 1918 C 135 Williams v. Nelson 228 Mass. 191 1918D 538 Williams v. Sandles 93 Ohio St. 92 1918D 154 Williams v. State ex rel. Schwarz 197 Ala. 40 19WD 869 Will's Adm'r v. George Wiede- mann Brewing Co. 171 Ky. 681 1918E 62 Wilmore, Neely v. 124 Ark. 460 1918D 77 Wilson v. Freeman 108 Tex. 121 1918D 1203 Wilson v. Grand Trunk Ry. Ins. etc. Soc. 78 N. H. 210 .... 1918E 1191 Wilson, Murphy v. 37 N. Dak. 300 1918E 1101 Wilson v. Robinson 21 N. Mex. 422 1918C 49 Wilson, State v. 141 La. 404 1918D 789 Wisconsin Zinc Co. v. Fidelity, etc. Co. 162 Wis. 39 1918C 399 Wolcott, Peninsula Bank v. 232 Fed. 68 1918C 477 Wolfenberger v. Hubbard 184 Ind. 25 1918C 81 Woodruff, Black v. 193 Ala. 327 1918C 969 Woodward, Baxter v. 191 Mich. 379 1918C 946 Woodward v. Blake 38 N. Dak. 38 1918E 552 Wren v. Dixon 40 Nev. 170 .. 1918D 1064 Yazoo, etc. R. Co. v. Washington 113 Miss. 105 1918E 813 York Farmers Colonization Co., John A. Marshall Brick Co. v. 54 Can. Sup. Ct. 569 ... 1918C 1013 York Shore Water Co. v. Card 116 Me. 483 1918D 945 Yount v. Hoover 95 Kan. 752 . . 1918C 148 DIGEST OF CASES REPORTED IN ANN. CAS. VOLUMES 1918C-1918E ABATEMENT AND REVIVAL. See ACTIONS AND PROCEEDINGS. ABOUT. Meaning of term, see WORDS AND PHRASES, 1. ABSTRACT OF TITUS. 1. Liability of abstractor Negligence in making search. Ordinary care and diligence on the part of an abstractor, in performing the work for which he has been employed, require him to avail himself of every facility at hand in order to furnish his client an accurate and complete abstract of the records. For a failure so to do, he will be liable per- sonally and upon hia bond. Crook v. Chilvers (Neb.) 1918E-90. (Annotated) 2. The provisions in section 5623, Rev. St. 1913, which require the register of deeds to keep general grantor and grantee indexes of deeds and mortgages, and the provisions in section 5629, which make it the duty of the register of deeds, on receiving any conveyance or instrument affecting realty, to cause such conveyance or instrument to be entered upon a numerical index immediately after filing the same, are intended as checks, one upon the others, to insure accuracy in ascertaining the state of the records as to titles to real estate, and an abstractor is not justified in relying solely upon any one to the exclusion of the others. Crook v. Chilvers (Neb.) 1918E-90. (Annotated) 3. When an abstractor relies upon the numerical index alone to refer him to all en- tries upon the records affecting the title to the property which he is examining, he does so at his peril, unless the one employing him agrees that in the making of such abstract 15 he may rely upon said index alone for such information; and in such case his certificate to the abstract must clearly and unequivocal- ly show his limited employment and investi- gation by reciting that such was the method pursued by him in making the abstract. Crook v. Chilvers (Neb.) 1918E-90. (Annotated) 4. Extent of liability. Any person en- gaged in the business of compiling abstracts of title to real estate in this state, who furnishes an abstract to one by whom he is employed for that purpose, is chargeable with knowledge of the use to which such abstract will in all probability be devoted, and he thereby becomes liable under section 6277, Rev. St. 1913, for all damages sustained by reason of any defect in such abstract, not only to the party who employed him to make it, but also to all persons who may deal with such party in reliance upon the abstract so furnished. Crook v. Chilvers (Neb.) 1918E-90. (Annotated) ABUTTING OWNERS. See ADJOINING LANDOWNERS. ACCELERATION. Of vesting of remainder, see REMAINDERS, 3. ACCIDENT INSURANCE. See INSURANCE; LIFE INSURANCE. 1. Permanent disability. An- insured ad- vanced in years, practically blind, lame, and a paralytic, is held to be permanently dis- abled under an insurance policy. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. AXX. CAS. DIGEST (191sr L918E). 2. The fact that an insured resigned his office of justice of the peace should not de- feat his claim or impeach his testimony as to permanent disability : it being his right as well as his duty to resign if he could not perform the main duties of the office. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. (Annotated) 3. Part continuance of insurance after ac- cident. A policy, giving half the total insur- ance for the loss of an eye with "the option to continue this covenant in force till death" when the other half will be paid, does not convert the remainder into an ordinary life policy and prevent recovery for further ac- cidents. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. (Annotated) 4. Where insured receives indemnity for loss of an eye and broken leg, he may still recover for permanent disability, although the lost eye and broken leg contribute to the permanent disability. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. ACCOMMODATION MAKER. Extension of time to joint maker as dis- charge, see BILLS AND NOTES, 1, 2. ACCOMPLICES. See CRIMINAL LAW, 2. Corroboration of accomplices in prosecution for homicide, see HOMICIDE, 11. ACCOUNTS AND ACCOUNTING. Account books as evidence, see EVIDENCE, 23. Accounting between partners, see PARTNER- SHIP, 6-8. Accounting by executor, see EXECUTORS AND ADMINISTRATORS, 15. Accounting . by trustee, see TRUSTS AND TRUSTEES, 33, 34. Assignment to mortgagee as collateral se- curity, see CHATTEL MORTGAGES, 7, 8. Compromise of items of account, see COM- PROMISE, 1. Copy of account as admission, see ADMIS- SIONS AND DECLARATIONS, 2. Right to accounting for profits of purchaser in suit by state to cancel deeds to school lands, see PUBLIC LANDS, 21. Suit against public officer for accounting, see PUBLIC OFFICERS, 13, 14. 1. Sufficiency of complaint. A complaint declaring upon a stated account that defend- ant promised to pay the amount found due upon a settlement is sufficient after verdict or judgment. Smith v. Dwight (Ore.) 1918D-563. 2. Necessity of pleading counter offsets. Tn an action on an account, accruing to plaintiff under certain contracts, it is error to permit plaintiff, in the absence of counter offsets filed by him, to prove that the pay- ments specified in defendant's bill of ollWts were properly applicable to other items of plaintiff's account, not covered by its liill of particulars, under a proper construction of section 4, chapter 126, serial section 4824, Code 1913. Parkersburg, etc. Sand Cu. v. Smith (W. Va.) 1918E-449. 3. Verified statement as prima facie evi- dence. An action for the balance of agreed price of a course of instruction by corre- spondence, payable in instalments, is within Revisal 1905, 1625, as amended by Pub. LaAvs 1917, c. 32, providing that, in an action on "an account for goods sold and delivered, for services rendered, and labor performed," a verified itemized statement of the account shall be admissible, and deemed prima facie evidence of its correctness. La Salle Exten- sion University v. Ogburn (N. C.) 191 8C~ 887. 4. Revisal 1905, 1625, as amended by Pub. Laws 1917, c. 32, declaring a verified itemized statement sued on admissible as prima facie evidence of its correctness, ap- plies in a trial subsequent to the act tak- ing effect. La Salle Extension University v. Ogburn (X. C.) 1918C-887. ACCRETIONS. Before conveyance as passing with land, see DEEDS, 6. Right as to accretions, see WATERS AND WATERCOURSES, 4-6. ACKNOWLEDGMENTS. Necessity for acknowledgment of lease, see LANDLORD AND TENANT, 1. Necessity for acknowledgment of sheriff's tax deed, see TAXATION, 41. Necessity of acknowledgment by wife to con- traits relating to land, see HUSBA.M? AND WIFE, 1. 2, 15, 16. 1. Effect of defective acknowledgment. Under Revisal 1905, 2107, providing that no contract between a husband and wife dur- ing coverture shall be valid as to any part of the wife's realty for a longer time than three years unless in writing and duly proved as required for conveyances of land, and un- less upon the examination of the wife apart from her husband, as required in the probate of deeds by femes covert, it shall appear to the satisfaction of the officer that the wife freely executed such contract and freely con- sented thereto at the time of her separate examination, and that the same is not unrea- sonable and injurious to her, where the cer- tificate of probate filed with a wife's deed lacks a finding by the officer taking the pro- bate that the conveyance was not unreason- able and not injurious to the wife, such deed is not valid to affect her realty. Butler v. Butler (N. C.) 1918E-638. (Annotated^, 2. Trivial defects. A certificate of ac- knowledgment will not be considered defec- tive if there has been a substantial com- ACTIONS, ETC. ADJOINING LANDOWNERS. 17 jiliam-e with the law. Krichevsky v. Hirsh- out (Del.) 1018C-34.3. 3. Resort to instrument in aid of cer- tificate. Resort may be had to a deed to support the sufficiency of the certificate of acknowledgment thereof. Kirchevskv v. Hirshout (Del.) 1918C-345. (Annotated) 4. A certificate of acknowledgment to a deed executed by Mary M., certifying that "Catherine M., party to this indenture" ac- knowledged the deed, is sufficient where the notary public who certified to the acknowl- edgment was one of the attesting witnesses lo the signing and sealing of the deed by Mary M., thus indicating that the word "Catherine" was a clerical mistake, since the certificate is sufficient if it appears, with reasonable certainty from the certificate and deed considered together, that the grantor in fact acknowledged the instrument. Krichev- sky v. Hirshout (Del.) 1918C-345. (Annotated) 5. If such acknowledgment is defective, it is cured by 21 Del. Laws. c. 110. 1, provid- ing that the record of any deed dated prior to January 1, 1895. which was duly signed and sealed by the grantors notwithstanding such deed had not been properly acknowl- edged or the acknowledgment had not been taken and certified in conformity with law. shall be and thereby is made valid and effectual in law or by later statutes of like import. Kirchevsky v. Hirshout (Del.) 1918C-345. 6. Subsequent annexation of certificate. Where a justice of the peace, in making a certificate of probate to a wife's conveyance of realty to her husband, omitted to state, as required by Eevisal 1905, 2107, that the conveyance was not unreasonable and not injurious to the wife, and where, in an at- tempt to rectify the omission nearly three years later and after the wife's death, a second certificate was procured from the jus- tice, reading in part that he further cer- tified that, "upon said examination, and upon a careful examination of the facts, caus- ing the said execution, it doth appear to my satisfaction that the said [wife] freely executed the said deed and freely consented thereto, at the time of her said separate ex- amination, and that the said conveyance is not unreasonable or injtirious to her, the said [wife], which said conclusion I hereby cer- tify as having been duly and carefully made concerning all the facts surrounding the exe- cution and the cause thereof.'' such new cer- tificate is insufficient to validate the deed, as not merely reducing to writing in the form of a certificate his prior official act, as the justice did not confine the certificate and adjudication to the examination of the wife separate and apart from her husband, but relied also on an examination of all the facts surrounding the execution of the deed, with- out stating that he ascertained such facts on the examination, concluding, "It doth ap- pear to my satisfaction that the said con- veyance is not unreasonable or injurious to her." Butler v. Butler (X. C.) 1918E-638. Ann. Cas. Dig. 1918C-E. 2. ACTIONS AND PROCEEDINGS. See DISMISSAL AND XOXSUIT; LIMITATION OF ACTIONS ; PARTIES TO ACTIONS. Action for money had and received, see As- si MPSIT, 1-5. Injunction on ground of other action pend- ing, see INJUNCTIONS, 4. Joint or several action against persons lia- ble for slander, see LIBEL AND SLANDER, 31-35. Satisfaction of judgment for libel as barring suit against persons jointly liable, see LIBEL AND SLANDER, 34, 35. 1. Abatement Dissolution of corporate de- fendant. The abatement of a suit pending against a corporation on appeal when such corporation was dissolved was prevented by the provisions of Tex. Rev. Stat. 1911, art. 1206. that upon dissolution of a corpora- tion the president and directors shall be trus- tees of the creditors and stockholders, with full power to settle its affairs, and in the name of such corporation to collect all debts, compromise controversies, and maintain or defend judicial proceedings, and that the existence of every corporation may be con- tinued for three years after its dissolution, for the purpose of enabling those charged with the duty to settle its affairs. Pease v. Rathbun- Jones Engineering Co. (U. S.) 1918C-1147. ADEQUATE REMEDY AT LAW. Denial of injunction where adequate remedy at law, see INJUNCTIONS, 9. ADJOINING LANDOWNERS. Right of abutting owner to maintain suit to prevent misuse of park, see PARKS AND PUBLIC SQUARES. 1. Right of city to indemnity from abutting owner against judgment recovered for injtiries to pedestrian resulting from icy condition of sidewalk, see STREETS AND HIGHWAYS, 16, 17. 1. Party walls Creation of right by im- plication. A sale by the owner of two build- ings, having party wall rights in the divid- ing wall, of one of them, passes the title subject to the right of the one retained to the use of the wall as a partv wall. Weadock v. Champe (Mich.) 1918C-874. 2. An option on the Eagle Block, it and an adjoining block being separated by a twelve-inch wall into which the joists of both entered and which had been tised by both as a party wall, is for the building and land on which it stands together with party wall rights. Weadock v. Champe (Mich.) 1918C-874. (Annotated) 3. Creation of rights by prescription. A division wall between two buildings, having for the period of limitations been used for support of both buildings, becomes "in effect a party wall, whether or not originally constructed as such, and without any express 18 AETK CAS. DIGEST (1918C-1918E). agreement by the owners of the buildings. Weadock v. Champe (Mich.) 19180-874. ADJOURNMENT. See JUSTICES OF THE PEACE, 2; TRIAL, 1. ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS. ADMISSIONS AND DECLARATIONS. 1. Self-serving Declarations, 18. 2. Admissions and Declarations against In- terest, 18. 3. Person by Whom Made: a. Insured, 18. b. Principal, 18. 4. Manner of Making: a. Admission by Silence, 18. b. Admissions in Pleadings, 19. c. Admission in Offer to Compromise, 19. d. Res Gestae, 19. 5. Explaining and Contradicting Declarations, 19. See DYING DECLARATIONS. Admission by demurrer, see PLEADING, 11, 12. Coroner's verdict sent to insurer at his re- quest as admission by plaintiff, see LIFE INSURANCE, 13. 1. Self-serving Declarations. 1. Letter. A letter which a minister, sued for refusing communion to a member, at- tempted to hand to her before the commu- nion began, forbidding her, till she did a certain thing, to partake, is not in the nature of a self-serving declaration. Carter v. Papineau (Mass.) 1918C-620. 2. Admissions and Declarations against In- terest. 2. Copy of account. Where a copy of an account is admitted to be correct by a party whose admissions are binding, such copy is admissible as part of the admitted transactions, and whether or not the books on which the account was based were accurately kept is immaterial. Scovill Mfg. Co. v. Cassidy (HI.) 1918E-602. 3. Person by Whom Made. a. Insured. 3. Declarations of insured are admissible against the beneficiary under mutual benefit insurance. Armstrong v. Modern Woodmen of America (Wash.) 1918E-263. 4. In suit on a fraternal benefit life policy, the testimony of a nurse stating an admis- sion by the decedent that an abortion, which was a breach of the policy, was the cause of her last sickness, is admissible. Gilchrist v. Mystic Workers, etc. (Mich.) 1918C-756. 5. In an action by a widow, the bene- ficiary named in a policy of accident insur- ance, defended under a provision of the policy on the ground of the insured's sui- cide, excepted from the risks, admissions by the insured against his interest in respect to his suicidal intent made while he had an interest in the policy, and while the bene- ficiary had no vested interest therein, are admissible against her in her suit on the policy. Rosman v. Travelers Ins. Co. (Md.) 1918C-1047. (Annotated) 6. In such action statements of the in- sured to physicians, not declaring that he had taken bichloride tablets with suicidal intent, are admissible; as it is a fact for the jury, in connection with the tardiness of his dis- closure as to what he had taken after his repeated denials that he had taken anything. Rosman v. Travelers Ins. Co. (Md.) 1918C- 1047. (Annotated) b. Principal. 7. Statements or admissions, to be compe- tent against guarantors, should be made dur- ing the continuance of the interest involved, and not after that interest has ceased. Scovill Mfg. Co. v. Cassidy (111.) 1918E-602. 8. Generally, where the declarations or ad- missions of the principal are made in the course of the performance of the business for which guarantor is bound, they are evidence against guarantor, but his subsequent dec- larations, having no direct connection with his acts in the business guaranteed, will not bind the guarantor. Scovill Mfg. Co. v. Cassidy (111.) 1918E-602. 9. In a suit on guaranty of a coporation's indebtedness, admissions as to the amount owed by the corporation to the guarantee, made by the president and general manager in charge of the corporation's business, in the regular course of the business, and being a part of the transactions and business be- tween the guarantee and the corporation to which the guaranty contract applied, were competent as to such amount against the guarantors, although made when the corpora- tion was insolvent to the knowledge of the parties, and shortly before the corporation was thrown into bankruptcy by petition of the guarantee. Scovill Mfg. Co. v. Cassidy (111.) 1918E-602. 4 Manner of Making. a. Admission by Silence. 10. Failure to deny testimony. In an ac- tion for deceit in the sale of a decedent's goods by defendant, as administrator, through an agent, defendant's failure at a former trial, at which he was a witness, to deny testimony given in his presence by plaintiffs and their witnesses as to state- ments made by defendant to plaintiffs that the goods had been so arranged in the stores as to give a fair representation, etc., which was material to the issue, is provable against defendant as an admission by silence and ac- ADMISSIONS AND DECLARATIONS. 19 quiescence. Harlow v. Perry (Me.) 19180- 37. (Annotated) 11. Circumstances not calling for reply. > Evidence that a witness told a grantee what the grantor said about the deed, and that the grantee did not reply, is inadmissible in an action to recover the land under the deed; silence in such a case not implying assent. Campbell v. Sigman (N. C.) 191SC-40. (Annotated) 12. That a defendant remained silent when a clerk of codefendant stated, in response to a question asked by defendant as to whether she had a record of a patient's case, that she had, and that the patient was the teacher that defendant dropped iodine in her eye and put it out, is not admissible as an admission against defendant, where the clerk was not in the actual presence of defendant or the third person hearing the conversation, but was on the floor above, and where the con- versation was carried on either through a speaking tube or up the stairway, and where codefendant was .absent, and defendant could consider his own interests in the controversy, the rule being that silence is not an admis- sion where the physical situation of the par- ties did not demand a denial, or the relation- ship of the person making the statement re- lied on was an employee of a third person who might have adverse interests, or where the statement was not one called for, but was purely voluntary and impertinent, and where the party remaining silent, notwith- standing the statement, could consider his own interests, and for that reason alone de- cline to reply. State v. Ellison (Mo.) 19180- 1. b. Admissions in Pleadings. 13. Conclusiveness in favor of stranger. Although admissions contained in a plead- ing of a party in a former action are 'admis- sible against him in a subsequent action be- tween him and a stranger, the pleading does not conclusively establish the facts alleged therein, and is open to explanation or rebut- tal. Albright v. Albright (N. M.) 1918E- 542. (Annotated) c. Admission in Offer to Compromise. 14. Admission of independent facts. Ad- mission by one of the parties of independent facts relating to plaintiff's claim, though made during the colloquium, or during a treaty for a compromise, are admissible in evidence, such admission not amounting to a proposition of compromise. Parkersburg, etc., Sand Co. v. Smith (W. V.) 1918E-449. (Annotated) 15. In a suit for damages from misrepre- sentations as to the acreage of land leased, it is error to exclude evidence as to a state- ment of fact made by the lessors at the time of negotiations with reference to the adjust- ment of the parties' differences. While an offer of compromise cannot be shown as being an admission of the party making the offer, any statement of fact made by him as such may be proved as an admission, though made during the discussion of the compromise. McNeer v. Z'jrfleet (Miss.) 1918E-436. (Annotated) d. Res Gestae. 16. Statement of insured in last illness. In suit on a fraternal benefit life policy, testimony of alleged statements of decedent made by her to her physicians and to one of them in the presence of a nurse during her last illness relating to the cause thereof is not admissible . as part of the res gestae. Gilchrist v. Mystic Workers', etc. (Mich.) 19180-756. 17. Declaration at time of sale. In an action for deceit in the sale of a stock of goods by defendant, the declaration of the agent who sold for defendant at the time of sale in reference to the condition of the goods is admissible as part of the res gestae accompanying the act of sale. Harlow v. Perry (Me.) 19180-37. 18. Declarations of victim of homicide. On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal act, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of th,e res gestae. More- head v. State (Okla.) 1918C-416. 19. Declarations by a person whose throat was cut, and windpipe severed, and there- fore speechless, made by signs in the presence of the defendant a few minutes after the wound was inflicted under circumstances that excluded the presumption that they were the result of premeditation and design are ad- missible as a part of the res gestae. Poling v. State (Okla.) 1918E-663. 20. Declaration of third person injured in altercation. Where a third person fatally wounded by the accused's victim stated after the fight that he wap dying, and then in re- sponse to a question said that the accused's victim shot him before the accused fired, it is held that his statement was inadmissible as part of the res gestae. Holland v. State (Ark.) 1918C-578. 5. Explaining and Contradicting Declarations. 21. Entire conversation where part is in- troduced. Where contestant of a will puts in evidence a conversation with the pro- pounder to the effect that the latter admit- ted the paper offered was not a valid will, as an admission by the propounder, the latter may give the entire conversation in explanation. In re Clodfelter (N. C.) 1918E- 281. 22. In an action against an administrator for damages occasioned the purchasers of the decedent's goods sold for the adminis- trator by an agent, the testimony of the agent as to his declaration at the time of sale in reference to the condition of the goods, containing immaterial testimony con- 20 AX.N. (AS. !>K,KST (1918C-191M-: ,. cerning the value placed upon the property by appraisers, elicited because the witness u;is call I'd upon to give his entire conver- sation with the btivers, is admissible. Har- low v. Perry (Me.) 1918C-37. ADOPTION OF CHILDREN. Recovery for death of adopted child, see DEATH BY WRONGFUL ACT, 6. ADULTERY. Presumption of continuation of meretricious relationship, see EVIDENCE, 37. ADVANCEMENTS. 1. Conversion of debt into advancement. That notes are taken by a parent for sums advanced to his children indicates that he re- garded the sums as debts, but he may con- vert them into advancements by his will. Knight's Estate (Pa.) 1918E-211. 2. Interest. Advancements do not bear in- terest of themselves, but only by force of the testator's intent, clearly expressed in the will. Knight's Estate (Pa.) 1918E-211. (Annotated) 3. Where "a testator who advanced certain sums to his children, taking notes therefor provides in his will that whatever debts might be owing him at his death should be taken into account in distributing the es- tate, the sums given to the children become advancements, and bear no interest, in the absence of a direction in the will therefor. Knight's Estate (Pa.) 1918E-211. (Annotated) ADVERSE POSSESSION. Delivery of warranty deed by grantor whose title rests on adverse possession as con- veyance of good title, see VENDOR AND PURCHASER, 13. Right of person having title by adverse pos- session to specific performance of con- tract for sale of land, see SPECIFIC PER- FORMANCE, 2. 1. Permissive occupancy by grantor. Evi- dence that plaintiff received a deed from de- fendant's intestate, that the intestate lived ten years after giving the deed, that the ex- ecution of the deed was known to all the children in interest, that the intestate paid taxes on the land and lived on the land, but paid no rent, and that he never demanded a reconveyance or reformation of the deed, in the absence of a showing of undue influence or fraud, is sufficient to sustain plaintiff's claim to the immediate right of possession of the land. Campbell v. Sigmon (N. C.) 1918C- 40. 2. Extent of possession. Two tracts hav- ing a common corner, making it possible to step from one to the other without crossing any other tract, are ''contiguous." within the rule that adverse possession of one of several tracts contiguous to each other, con- veyed by a deed, though separately described, extends to all. Parsons v. Dils (Ky.) 1918E- 796. (Annotated) AFFIDAVITS. Amendment of aUidavit of merit, see PLEAD- ING, 17, 18. AGENCY. 1. Creation and Existence of Relation, 21. 2. Rights and Liabilities inter Se: a. Of Agent to Principal, 21. b. Of Principal to Agent: (1) Compensation, 21. (2) Damages for Breach of Con- tract 21. (3) Evidence. 21. . 3. Rights, Duties and Liabilities as to Third Persons: a. Authority of Agent in General: (1) Duty to Ascertain Agent's Au- thority, 21. (2) Conveyance of Real Estate. 22. b. Ratification of Act of Agent, 22. c. Notice to Agent as Notice to Prin- cipal, 22. See ATTORNEYS; BROKERS; FACTORS. Communications between principal and agent as privileged, see LIBEL AND SLANDER, 17-20. Company furnishing fireworks to committee having charge of Fourth of July cele- bration as agent of committee, see THEATERS AND AMUSEMENTS. 8. Declaration of agent as admissible against principal, see ADMISSIONS AND DECLARA- TIONS, 17. Effect of war on power of attorney by alien, see ALIENS, 4. Insurance agents and brokers, see INSURANCE, 1-7. Joint liability of agent and principal for circulating libel, see LIBEL AND SLANDER, 33. Liability of administrator for acts done by agent, see EXECUTORS AND ADMINISTRA- TORS, 13. Liability of agent for renting of real prop- erty for injuries caused by negligence in care of premises, see LANDLORD AND TENANT, 9, 10. Liability of beneficial association for torts of agent, sec BENEFICIAL ASSOCIATIONS, 22. Liability of corporation for tort of agent, see CORPORATIONS. 6. Loss caused by agent's breach of duty as counterclaim in suit by agent for com- pensation, see SET-OFF AND COUNTER- CLAIM, 1. Nature of agency of partners, see PARTNER- SHIP, 3. AGEXCY. 21 1. Creation and Existence of Relation. 1. Automobile sales agency contract. A provision in a contract for the sale of motor- ears to a dealer for resale, whereby the seller reserves the right to reapportion the territory if in its opinion the dealer is not properly promoting sales, is designed only to secure to the seller proper effort on the part of the dealer, and does not warrant cancellation for other reasons. Northwest Auto Co. v. Harmon (U. S.) 1918E-461. (Annotated) 2. In an action for damages for breach of a contract to furnish a dealer with motor- cars for resale, the evidence is held to be in- sufficient to warrant the seller in canceling the contract on account of any lack of effort or inability, etc., on the part of plaintiff, to whom the contract was assigned. North- west Auto Co. v. Harmon (IT. S.) 1918E-461. (Annotated) 3. In an action for damages for breach of contract to furnish a dealer with motorcars for resale, the evidence is held to warrant a finding that the seller was not warranted in canceling the contract, which had been assigned to plaintiff, on the ground of plain- titl"> inability to carry it out. Northwest Auto Co. v. Harmon (U. S.) 1918E-461. (Annotated) 4. Where a contract to furnish motorcars to a dealer for resale is conditioned upon the dealer's payment of a specified note, the sell- er's acceptance of payment in instalments is binding, and precludes it from denying re- sponsibility on the ground that the note was not paid as required. Northwest Auto Co. v. Harmon (U. S.) 1918E-461. (Annotated) 5. Power of attorney Revocation. Where parties relinquishing lands within a forest reservation to the United States as a basis of lieu land selections sold their selections and executed powers of attorney author- izing the purchasers to select lieu lauds in their names and authorizing the sale of the selected lands, such powers of attorney are powers with an interest and were irrevocable during the lifetime of the grantors. State V. Hyde (Ore.) 1918E-688. 2. Rights and Liabilities inter Se. a. Of Agent to Principal. 6. Breach of duty by salesman Carrying side line. A traveling salesman, who en- gages to carry no side line of any nature, violates his contract as matter of law by carrying another line of clothing, in addi- tion to defendant's, though he carries no samples or catalogue, and it is error to sub- mit the question to the jury. Merrimac Mfg. Co. v. Bibb (Ark.) 1918C-951. (Annotated) 7. In a suit for commissions by a travel- ing salesman who had engaged not to carry a side line of any nature whatever, the ad- mission of testimony that to cary a side line a salesman must have samples or a catalogue of the goods he is selling, and that he had none, is improper, a "side line/' in commercial usage, being a line of goods sold or business followed in addition to one's principal articles or occupation. Merrimac Mfg. Co. v. Bibb (Ark.) 1918C-951. (Annotated) b. Of Principal to Agent. (1) Compensation. 8. Misconduct of servant as defense. Where an agent is guilty of fraud, dishon- esty, and unfaithfulness in the transaction of his agency, such conduct is a bar to his recovery of compensation. Neely v. Wil- more (Ark.) 1918D-77. 9. Effect of appointment of guardian for principal. Where one contracts to pay an- other a salary for a fixed term of years for managing an estate, but, before the expira- tion of such term, is made defendant in a suit for interdiction, in which, by an ex parte order of court, an administrator pro tern is appointed to manage the estate; and the manager, under the contract, acquiesces in such appointment, and without asserting any rights, assists the administrator, who is subsequently paid for the management, under a judgment obtained contradictorily with the former manager, who, by that time, has become the executor of the deceased owner of the estate, but who still asserts no claim under his contract, such manager can- not thereafter recover his salary for the bal- ance of the term fixed by such contract. Pons's Succession (La.) 1918D-939. (2) Damages for Breach of Contract. 10. Where defendant broke a contract to furnish motorcars to a dealer for resale, though the dealer had made contracts for the sale of more than half of the cars it was to receive, and could readily have disposed of the remainder, the profits on resale are so reasonably certain as to be recoverable as damages. Northwest Auto Co. v. Harmon (U. S.) 1918E^61. (Annotated) (3) Evidence. 11. In an action for breach of contract to furnish motorcars to a dealer for resale, which provided that it should be subject to the prior orders of other dealers, the evidence is held to be insufficient to show that defend- ant was justified in failing to furnish cars as agreed because of the prior orders of other dealers. Northwest Auto Co. v. Harmon (U. S.) 1918E-461. (Annotated) 3. Rights, Duties and Liabilities as to Third Persons. a. Authority of Agent in General. (1) Duty to Ascertain Extent of Agent's Authority. 12. Duty of third person to make in- quiry. Where one contracts with an agent who apparently has a limited, rather than a general, authority, he is bound to make in- quiry and ascertain the extent of the agent's 22 ANN. CAS. DIGEST (1918C-1918E). authority to act, for if one has notice that the authority is limited, he deals at his peril. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. 13. Apparent scope of authority. Where the relation of principal and agent is found to exist, the principal is responsible for the acts of the agent within the apparent scope of his authority, as an apparent general au- thority, conferred on an agent cannot be lim- ited as to third persons when such limitation is not known to them. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. (2) Conveyance of Real Estate. 14. Effect of agent's deed as contract to convey. An instrument in the form of a deed which has been defectively executed by an agent having authority to convey may operate as a contract to convey, and the agent's authority may be shown by parol. Robinson v. Daughtry (N. C.) 1918E-1186. b. Ratification of Act of Agent. 15. Acceptance of benefits. Allegations in a purchaser's action that the contract had not been made with defendant company, yet that defendant knew that plaintiff had made the contract with a certain person as its agent, and had relied upon his acts as those of the defendant, and had made payments accordingly, which defendant had received and applied to its own use, stated a cause of action to recover the amount paid. Jones v. Ceres Invest. Co. (Colo.) 1918C-429. c. Notice to Agent as Notice to Principal. 16. "It is the duty of an agent to make known to his principal all facts concerning the service in which he is engaged that come to his knowledge in course of his employ- ment, and this duty he is, in a subsequent action between his principal and a third per- son, conclusively presumed to have performed. This is the foundation of the rule, necessary to the public safety, that notice to an agent in the course of his employment is notice to his principal." Modern Woodmen of Amer- ica v. Colman, 68 Neb. 660. Modern Wood- men of America v. Berry (Neb.) 1918D-302. AGREED CASE. Stipulation of facts on appeal, see APPEAL A.ND EBBOB, 43. ALIBI. Proof, see CBIMINAL LAW, 14-20. ALIENS. 1. Who are alien enemies. A native of Austria-Hungary, with which country the United States is at war, though a resident of North Carolina, and regardless of the fact that he is guilty of no act or utterance unfriendly to the United States, and is a quiet, law-abiding laborer, is a.n alien enemy. Krachanake v. Acme Mfg. Co. (N. C.) 1918E- 340. (Annotated) 2. A ten year old child born in Canada of parents native to Austria-Hungary, residing with his parents in the United States, could sue for injuries by tort through his father as next friend, since the father was not a party in the legal sense but an officer ap- pointed by the court to protect the interest of the son, and the United States follows the rule according to which nationality is prim- arily determined by the place of birth. Krachanake v. Acme Mfg. Co (N. C.) 1918E- 340. 3. Dissolution of partnership by war. Where a partnership is dissolved by the out- break of war, a partner continuing the busi- ness is liable to the alien copartner for such a share of the profits as represents his in- terest in the firm property used in continu- ing the business, though that liability can- not be enforced until the end of the war. Stevenson v. Aktiengesellschaft Fur, etc. (Eng.) 1918D-575. 4. Effect of removal to enemy county. An irrevocable power of attorney to sell land given by a resident alien enemy is not rend- ered void by his subsequent removal to a residence in an enemy country. Tingley v. Miiller (Eng.) 1918C-726. (Annotated) 5. Right of alien enemy to sue. In view of the Presidents Proclamation No. 1417, as to rights of Austrian nationals, and the Trad- ing with the Enemy Act (Act Cong. Oct. 6, 1917, c. 106, 40 Stat. L. 411; 1918 Supp. Fed. Stat. Ann. 846), defining an enemy as a person resident within the territory of any nation with which the United States is at war, a native of Austria-Hungary resident within the United States may sue for torts. Krachanake v. Acme Mfg. Co. (N. C.) 1918E- 340. (Annotated) 6. Rules preventing certain enemy aliens from resorting to our courts do not prevail against a minor, the son of a native of Aus- tria resident in the United States, since the money recovered will be in charge of a guar- dian appointed by the court, and cannot be removed from the state without the court's consent and so cannot be used in aid of the enemy. Krachanake v. Acme Mfg. Co. (N. C.) 1918E-340. (Annotated) 7. Naturalization Application made be- fore war. Rev. St. 2171 (6 Fed. St. Ann. 2d ed. 947), originally adopted at a time when the only application for naturalization was made in open court, provides that no subject of any country with which the United States are at war at the time of his application shall be admitted to citizenship. Act June 29, 1906, c. 3592, 4, 34 Stat. 596 (6 Fed. St. Ann. 2d ed. 959), requires the applicant to make and file a petition in writ- ing, and section 6 (6 Fed. St. Ann. 2d ed. 975) provides that final action thereon shall not be had until at least ninety days have elapsed after filing and posting the notice of such petition. It is held that the applica- tion is complete when the petition is filed, and the time of filing the petition is the ALIMONY AND SUIT MONEY ANTENUPTIAL CONTRACTS. 23 "time of his application," especially as sec- tion 2171 contains a further provision, now obsolete, for the naturalization of alien en- emies entitled to naturalization on June 18, 1812, and hence a German subject filing his petition in January, 1917, was entitled to naturalization, though the hearing was not had until April 6th, at which time a state of war existed. U. S. v. Meyer (U. S.) 1918C- 704. (Annotated) ALIMONY AND SUIT MONET. See DrvoBCE. 1. Review of decree. Where divorce ab- solutely dissolves the marriage relations, and the duty of support no longer exists, there can be no review in the absence of fraud or mistake of the decree awarding or denying alimony unless warranted by statute. Spain v. Spain (la.) 1918E-1225. 2. Effect of decree of annulment on ac- crued rights. In a wife's action for main- tenance, wherein her husband cross-com- plained for annulment, the provision of the final judgment that the wife was not en- titled to recover from her husband any pay- ment of alimony or any money whatsoever for her maintenance or otherwise merely ad- judicated that the wife should not recover any alimony or. sum by way of permanent maintenance, a necessary result of the decree of nullity, and the- provision did not preclude the wife from collecting any money due her under order pendente life, made for tempo- rary support, etc. Millar v. Millar (Cal.) 1918E-184. AMENDMENT. Of indictment, see INDICTMENTS AND INFOB- MATIONS, 11, 17. Of pleading, see PLEADING, 16-22. Construction of amendment to statute, see STAIUTES, 20. To ; lea in action for slander, see LIBEL AND SLANDEB, 47. AMOUNT IN CONTROVERSY. Jurisdiction of appellate court as governed by amount in controversy, see APPEAL AND EBBOB, 4-7. AMUSEMENTS. See THEATEBS AND AMUSEMENTS. ANCIENT DEEDS. See DEEDS, 3, 14. Proof, see EVIDENCE, 20. ANCILLARY ADMINISTRATION. See EXECUTOBS AND ADMINISTBATOBS, 5-8, 10. ANIMALS. See CABBUEBS OP LIVE STOCK. ANNUITIES. See TBUSTS AND TBXJSTEES; WILLS. 1. Election to take capital sum. Where an absolute and unqualified annuity is given by a will with instructions to invest a sum sufficient to purchase the annuity, the an- nuitant may elect to take the capital sum, instead of having it invested for the purpose of producing the annuity, since, if the testa- tor deemed it necessary to protect the annui- tant against improvidence, he could have done so through the instrumentality of a trust. Matter of Cole (N. Y.) 1918E-807. 2. Payment from income or corpus of es- tate. Where a will provided an annuity to the testator's daughter, and the residuary clause is expressly made subject to the an- nuity, although annuities are usually payable out of income, it being a question of the in- tention of the testator as expressed in the will, as another clause in the will devised real estate subject to the payment of the annuity, the annuity should be charged to the principal of the estate. Sheffield v. Cooke (R. I.) 1918E-961. 3. Payment of taxes. Taxes assessed against annuities, other than inheritance taxes, should be paid out of the annuities themselves. Parkhurst v. Ginn (Mass.) 1918E-982. (Annotated) 4. Where testator, who devised and be- queathed the bulk of his property to trus- tees, directing them to pay stated portions of income to various beneficiaries, and then a larger portion to a charity, declared that the gifts and annuities to individuals should first be paid before there should be any payment to the charity, such declaration does not show that the annuities are in all cases to be paid free of taxes; so taxes assessed against them should be paid out of the annuities. Parkhurst v. Ginn (Mass.) 1918E-982. (Annotated) ANSWER. See EQUITY, 1; PLEADING, 5-10. ANNULMENT. OI marriage, see MABBIAGE, 9-15. ANTENUPTIAL CONTRACTS. See HUSBAND AND WIFE, 4-6. 24: AXX. CAS. DIGEST (1918C-1918E). ANTI-TRUST LAW. See MONOPOLIES. APPARATUS. Construction of lease giving right to remove, see FIXTURES, 5. APPEAL AND ERROR. 1. Right of Appeal, 24. 2. Jurisdiction and Powers of Appellate Courts: a. In General, 24. b. Amount in Controversy, 25. c. Federal Courts, 25. 3. Appealable Judgments and Orders, 25. 4. Parties to Appellate Proceedings, 25. 5. Certification of Questions, 25. 6. Notice of Appeal, 25. 7. Time of Appeal, 2. 8. Record on Appeal: a. In General, 26. b. Transcript of Record, 26. c. Abstract of Record, 26. d. Settlement and Certification, 26. 9. Bill of Exceptions, 26. 10. Assignments of Error, 27. 11. Briefs of Counsel, 27. 12. Examination of Case on Appeal: a. What Is Brought Up by Appeal: (1) In General, 27. (2) Matters Not in Record, 27. (3) Rulings on Evidence, 28. b. Second Appeal, 28. c. Examination of Questions of Fact: (1) In General, 28. (2) Verdict or Finding of Jury, 28. (3) Findings of Court, 28. (4) Direction of Verdict or Judg- ment on Demurrer to Evi- dence, 28. (5) Judgment of Intermediate Appellate Court, 28. d. Waiver of Error, 29. 13. Review of Exercise of Discretionary Pow- er, 2!>. 14. Presumptions on Appeal, 29. 15. Reversible Error: a. Error Must Be Material, 29. b. Error Must Be Prejudicial: (1) Error in Admission of Evi- dence, 30. (2) Exclusion of Evidence, 30. (3) Other Errors in Relation to Evidence, ,')0. (4) Error in Instructions, 30. (5) Error in Submitting Ques- tion to Jury. 30. c. Errors Xot Available: (1) Questions Xot Raised Below, 31. (2) Sufficiency of Objection or Exception, 31. (3) Errors Favorable to Appel- lant, :;i. (4) Wrong Reason for Correct Decision, 31. 16. Decision or Judgment of Appellate Court, 32. 17. Supersedeas and Bond: a. In general, :>2. b. Amendment of Bond, :>2. c. Summary Judgment against Sure- ties. :>~2. 18. Costs, :. 19. Rehearing, 33. See CERTIORARI. Amendment of pleadings on appeal, see PLEADING, 20. Cure of omission in instructions by other in- structions, see INSTRUCTIONS, *15. Effect of motion for direction of verdict by both parties on finding of court, see VER- DICT, 11. Modification on appeal of decree for specific performance of contract by railroad to maintain depot, see SPECIFIC PERFORM- ANCE, 13. Reappointment of guardian ad litem in ap- pellate court, see INFANTS, 3. Review of finding in proceedings under Tor- rens Act, see RECORDING ACTS, 8. Review of finding of industrial board, see MASTER AND SERVANT, 26. Review of piveedings in juvenile court, see INFANTS, 13. 14. Right of appealing defendant against whom judgment has been directed under super sedeas bond to subrogation against co- defendants, see SUBROGATION, 4. Right of state to appeal in divorce action, see DIVORCE, 17. Scope of issues on appeal from order admit- ting will to probate, see WILLS, 22. Trial de novo in aption by stockholder against directors for refusal to call for unpaid subscriptions, see CORPORATIONS, 31, 32. Use of habeas corpus as appeal or writ of error, see HABEAS CORPUS, 1. 1. Right of Appeal. 1. .Waiver. That appellant (accepts the money assigned to him under a judgment dis- solving a corporation and distributing the funds thereof will not deprive him of hi* right to question the judgment so far as it dissolves the corporation or require that his appeal be dismissed. Thwing v. McDonald (Minn.) 1918E-420. 2. Jurisdiction and Powers of Appellate Courts. a. In General. 2. Quashing judgment of court of inter- mediate appeal. The supreme court has con- stitutional authority to quash a judgment of the court of appeals where the judgment is the result of a refusal by the court of appeals to follow the last previous ru lings APPEAL AXD ERROR. 25 of the- supreme court. State v. Ellison (Mo.) 1918C-1. 3. Final jurisdiction in criminal cases. The constitution expressly places in the court of criminal appeals, and not in the supreme court, the tinal jurisdiction in all criminal cases. Ex parte Mode (Tex.) 1918E-845. b. Amount in Controversy. 4. Where a judgment of the municipal court is for more than $1,000, writ of error to the judgment of the appellate court, which reversed that of the municipal court, will not be dismissed on the ground that the judgment of the appellate court did not ex- ceed $1.000. Schaefer v. Washington Safety Deposit Co. (111.) 1918C-906. 5. Exclusion of costs. Where an action is for the recovery of money only, the ques- tion whether the supreme court has jurisdic- tion to review the judgment at t"he instiga- tion of the party ordered to pay it depends upon the amount, exclusive of costs, which the appellant is required to pay. Shannon v. Ahrams (Kan.) 1918E-502. 6. Aggregation of several causes of ac- tion. Under section 566 of the Civil Code where the action is for the recovery of money only, the right of appellant to have his cause reviewed by the supreme court depends on the aggregate sum of money which he is required by the judgment to pay, and is not affected by the fact that the judgment is only the total of a series of judgments on separate counts no one of which if con- sidered independently would be for a sum large enough to confer jurisdiction for re- view by the supreme court. Shannon v. Abranis (Kan.) 1918E-502. (Annotated) 7. Where a plaintiff has acquired title to a number of outstanding claims against a de- fendant and his surety, and brings a single Action thereon, setting up each claim in sepa- rately stated and numbered causes of action, each one of which is for a sum of money less than $100, and Avhere the plaintiff pre- vails in the action, and separate judgments are given on each count, and an aggregate judgment is awarded in his favor for a sum nf money in excess of $100. section 566 of the Civil Code gives the defendant a right of appeal to the supreme court. Shannon v. Abranis. (Kan.) 1918E-502. (Annotated) c. Federal Courts. 8. In an action to quiet title to a mining claim and mill site claimed under a United States patent duly recorded, where the agreed statement of facts asserted defendant's ad- rerse possession under a certificate of tax niile. and precluded the idea of plaintiff's possession, the court's assertion that plaintiff had never taken possession was within the record, especially where the judgment for de- fendant did not turn upon such assertion, and a petition for a writ of error to the United States Supreme Court on the ground that the court's opinion raised a federal question would be denied. Wren v. Dixon (Xev.) 1918D-1064. 3. Appealable Judgments and Orders. 9. Order of intermediate court Finality. Where a remittitur is filed by plaintiff in a suit for personal injuries in accordance with the judgment of the court of civil appeals, such judgment may be appealed from to the supreme court by 'defendant by petition for writ of error; the judgment of the court of civil appeals having become final. Wilson A T . Freeman (Tex.) 1918D-1203. 10. Order limiting examination of party. An order practically enjoining all examina- tion of defendant under St. 1913, 4096, pro- viding for the examination of adverse par- ties, is appealable. Kuryer Pub. Co. v. Messmer (Wis.) 1918C-778. 4. Parties to Appellate Proceedings. 11. Right of district attorney to appeal in divorce case. On appeal by the district attorney in a divorce suit, the record did not show that he had been served with sum- mons prior to the trial of the suit, or that he had appeared in the suit as required bv L. O. L. 1020, as amended in 1911 (Laws 1911, p. 126), and plaintiff moved to dis- miss the appeal on the groiind that the ap- pellant had no authority to prosecute it. It is held that, in view of the fact that the district attorney had not been served as re- quired, and that the question was not here presented, a motion to dismiss would be overruled with leave to renew it on argument of the case. Smythe v. Smythe (Ore.) 1918D-1094. (Annotated) 12. Death of partner. Where, in an ac- tion against a partnership, service is made by publication and the appearance is by the partnership only, and judgment is rendered against the individuals composing the firm, and, pending the appeal, one of the parties dies, held, a failure to revive in the name of his personal representative is not fatal to the appeal, inasmuch as the trial court was without jurisdiction to render an in- dividual judgment against the deceased. Holmes v. Alexander (Okla.) 1918D-1134. 5. Certification of Questions. 13. Disregarding defects. Though a certif- icate from circuit court of appeals was de- ficient in specification and somewhat wanting in precision, the court considers it its duty to answer the questions, where the matters not specified were not in dispute and the want of precision not so fundamental as to mislead or confuse. Boston Store v. Ameri- can Graphophone Co. (U. S.) 1918C-447. 6. Notice of Appeal. 14. Defects. Where the notice of appeal did not name the court to which the appeal was taken, an amended undertaking describ- ing the judgment as appealed to the supreme court may be considered as in aid of the notice, especially as it would seem that on an appeal from a judgment of the circuit court, which can be appealed only to the supreme court, the failure to name the court ANN. CAS. DIGEST (19180-1918E). is immaterial. 1918D-563. Smith v. Dwight (Ore.) 7. Time of Appeal. 15. A justice of the peace not having the right to grant a new trial, an appeal from a default judgment should have been perfect- ed within the time allowed by law after the rendition of the judgment. Welch v. Hannie (Miss.) 1918C-325. 8. Record on Appeal. a. In General. 16. Motion to incorporate evidence in record. Under Gen. St. 1902, 797, it is irregular to move to make the evidence and rulings part of the record on appeal four months before the trial court's finding was filed; such motion being proper within a week after the movant receives notice of the filing of such finding. Plum Tree Lime Co. v. Keeler (Conn.) 1918E-831. 17. Immaterial omission from record. Where the decision of an appeal turns wholly on the validity of a contract set up in the answer in the action, and all the portions of the record necessary to raise and determine the question of law are before the court, the absence of minor papers in another action between the same parties from the record when the cases were tried together in the circuit court is immaterial and not ground for reversal. Walker v. Richmond (Ky.) 1918E-1084. b. Transcript of Record. 18. The record on appeal must show that it contains a transcript of all that portion of the record of the trial court necessary for a consideration of the questions presented for review, and the duty of having such a transcript properly prepared and filed rests upon the appellant or plaintiff in error. Baca v. Unknown Heirs of Jacinto Palaez {N. M.) 1918C-612. 19. Incorporation of exhibits. Without express statutory authority, no original paper, document, or entry in a cause can be incorporated in the transcript filed on appeal in the supreme court; but all papers, docu- ments, and entries must be copied into the transcript, and if any such original paper, document, or entry is incorporated in the transcript, it will be disregarded. Baca v. Unknown Heirs of Jacinto Palaez (N. M.) 1918C-612. (Annotated) 20. The first section of rule 22 of this court contemplates the incorporation into the transcript of the record the substance of voluminous exhibits, or exhibits which are important only as to the fact of their ex- istence or as to small portions of their sub- ject-matter or as establishing a negative fact, either by agreement of the parties as to the statement of the contents thereof, or a statement of the contents of the same settled by the trial judge; but it makes no provi- sion for the sending of original exhibits to this court, and their omission, or the omis- sion of the statement mentioned, from the transcript of record. Baca v. Unknown Heirs Jacinto Palaez (N. M.) 1918C-612. 21. The second section of the rule was not designed to obviate the necessity of incor- porating copies of exhibits in the transcript of record, but its only purpose was to au- thorize the sending of original exhibits to this court whenever, in the opinion of the district judge, an inspection of the original paper would disclose some facts which could not be made to appear by a copy thereof. Where a statement of the contents of ex- hibits is not agreed upon, or made up as provided by the first section of the rule in question, appellant or plaintiff in error must have a copy of the exhibits, essential to a review upon appeal, inserted in the transcript, even though the district judge orders the original exhibit or exhibits transmitted to the supreme court for inspection. Baca v. Unknown Heirs of Jacinto P&'aez (N. M.) 1918C-612. c. Abstract of Record. 22. Requisites. It is the duty of an ap- pellant to furnish the supreme court with an abstract which fairly represents all por- tions of the record bearing upon the appeal, and not merely those portions favorable to appellant. Martin v. Bankers Trust Oo. (Ariz.) 1918E-1240. d. Settlement and Certification. 23. Affidavit of trial judge. It is not proper for a trial judge, by his personal affidavit, to supplement the record of what did or did not transpire in the trial of a cause before him. Emery v. Bennett (Kan.) 1918D-437. 9. Bill of Exceptions. 24. The question of the sufficiency of the evidence to sustain a finding cannot be con- sidered on appeal, from a judgment, where the bill of exceptions relied on contains no specification of insufficiency of evidence, and the same is true as to an appeal from an order denying new trial, where based on a bill of exceptions. Millar v. Millar (Cal.) 1918E-184. 25. Where a party moved for a new trial, and duly excepted to the denial thereof, but on appeal failed to include his motions or any proceedings thereon in the bill of ex- ceptions, the court cannot consider the as- signments of error, although the proceedings appeared in the printed record, since Comp. Laws 1897, 10504, requires all motions and proceedings for the "new trial to be included in the bill of exceptions. In re Keene (Mich.) 1918E-367. 26. No settled case or bill of exceptions is necessary to review an order_disposing of a motion for a new trial made on the ground that by a clerical error of the jury the ver- dict returned in court was the opposite of the verdict unanimously agreed upon by them the affidavits on which such motion is made be- APPEAL AND ERROR. ing returned. Paul v. Pye, (Mass.) 1918E- 286. 27. Examination for incidental purpose. Although the reasons for granting a new trial are not reviewable because not entered of record as required by Rev. St. 1909, 2023, where they are preserved in the bill of ex- ceptions they can be considered as throwing light upon the view the trial court took of the case. Hays v. Hogan (Mo.) 1918E-1127. 28. Amendment of certificate. Where a transcript of all the evidence is sent up to the supreme court with the bill of exceptions, but is not formally made a part thereof, the court, on motion before argument, will allow an amendment of a certificate to the bill of exceptions so as to attach all the evidence. United Brokers Co. v. Southern Pac. Co. (Ore.) 1918D-814. . 29. Excluded papers. Where offered evi- dence is excluded as not proving a proper sub- ject of counterclaim, papers whose form is immaterial, constituting part of such evi- dence, need not be copied into the bill of exceptions. Neely v. Wilmore (Ark.) 1918D- 77. 10. Assignments of Error. 30. Questions not included in the state- ment of questions involved will not be con- sidered by the supreme court. McClintock, etc. Co. v. Aetna Explosive Co. (Pa.) 1918E- 1078. 31. The overruling of a challenge to a juror on the ground that his examination shows that he lias an opinion as to the guilt of ac- cused cannot be considered, where the ruling is not alleged as ground of error in the speci- fications of error on motion for new trial, and is not assigned in the assignments of error. State v. Morse (S. D.) 1918C-570. 32. On appeal to the supreme- court, it is presumed that the judgment of the lower court is correct, and to overcome this pre- sumption the error must be specified and the specification accompanied with an ab- stract of all that portion of the record which actuated the decision of the particular point. Martin v. Bankers Trust Co. (Ariz.) 1918E- 1240. 33. Effect of want of proper abstract of record. Unless an appellant presents an ab- stract fairly informing the court of the er- rors relied on, abstracting such portions as are necessary to a determination without in- vestigating the original record, and the ap- pellee does not supply the deficiencies, but shows the default of appellant, the assign- ment of errors to that extent must be dis- regarded. Martin v. Bankers Trust Co. (Ariz.) 1918E-1240. 11. Briefs of Counsel. 34. Upon appeal the statement in the briefs of the substance of the evidence bear- ing upon a question of fact necessary to the determination of the case "will be taken to be accurate and sufficient for a full under- standing of the questions presented for deci- sion, unless the opposite party in his brief shall deny the correctness or accuracy of the statement, specifying with particularity the defects and inaccuracies therein, with cita- tion of the page and paragraph of the tran- script or page and question of the bill of ex- ceptions, as the case may be, relied upon by him in support of his contentions in that regard." Supreme Court Rule 12 (94 Neb. xi). Chicago, etc. R. Co. v. Box Butte Coun- ty (Neb.) 1918D-1Q37. 12. Examination of Case on Appeal, a. What Is Brought Up by Appeal. (1) In General. 35. Questions not raised by motion for new trial. Trial errors not set out in the grounds of motion for new trial cannot be complained of on appeal. Ray v. Shemwell (Ky.) 1918C-1122. 36. Specification of grounds. Where the notice of intention to move for new trial specifies in general terms as a ground insuffi- ciency of the evidence to justify the findings, decision, and judgment of the court, the gen- eral specification of the insufficiency of the evidence is not sufficient to enable the court on appeal to review the question of its suffi- ciency. Millar v. Millar (Cal.) 1918E-184. 37. Where the only ground stated for mo- tion for nonsuit is that there is no evidence justifying the court in granting the relief prayed for, or any relief whatever, the court on appeal cannot consider the evidence to review the trial court's ruling denying the motion for nonsuit, since an appellate court will not review the finding of the trial court denying such a motion upon any ground not precisely and specifically stated in it, and where no ground is sufficiently stated will not review it at all. Millar v. Millar (Cal.) 1918E-184. 38. Failure to produce evidence on motion for new trial. The provision of the civil code that, in order to preserve for review a ruling excluding evidence, the evidence must be produced at the hearing of the motion for a new trial, applies as well in criminal cases, inasmuch as the criminal code makes such a ruling, if erroneous, a ground of new trial only by the adoption of the civil procedure in relation thereto. State v. Wellman (Kan.) 1918D-1006. 39. Matters subsequent to order appealed from. Matters occurring after issuing of preliminary restraining order cannot be con- sidered on appeal where no supplemental pleadings are filed. New Method Laundry Co. v. MacCann (Cal.) 1918C-1022. (2) Matters Not in Record. 40. Record in another case. In determin- ing whether the complaint states a good cause of action upon the ground of the in- surer's bad faith in refusing to settle before trial, the supreme court, on appeal, may not look into the record on the appeal in the employee's case to determine whether the employee will be able to prove a case of bad faith. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. 28 AXX. CAS. DIGEST (1918C-1918E). (3) Rulings on Evidence. 41. Absence of evidence from record. The admission of alleged incompetent oral evidence to identify real estate defectively described in a written contract of sale can- not be reviewed, in the absence of the evi- dence from the record. Alundy v. Irwin (N. -M.) 1918D-713. b. Second Appeal. 42. Law of the case. Decision on a former appeal is not binding, except in so far as the issues and proof are the same as upon the former appeal. McClintock v. McClure (Ky.) 1918E-96. c. Examination of Questions of Fact. (1) In General. 43. Where by a stipulation of facts it is agreed that the amount claimed was received by the defendant as interest on public funds in his hands as county treasurer, there being no statement of fact or proposition of law that the money did not belong to the plaintiff county but to the owners of the several funds, there is no such question subject to review on appeal. Lake County v. Wester- lield (111.) 1918E-102. (2) Verdict or Finding of Jury. 44. The verdict of the jury on conflicting evidence forecloses any inquiry into the credi- bility of the witnesses or the weight of their testimony. Childers v. Brown (Ore.) 1918D- 170. 45. Where the evidence is so insufficient to sustain a verdict in a criminal case that it would seem to be the result of passion or prejudice, it will not be approved by a re- viewing court, but in such a case the jury are the judges of the weight and credibility of the testimony, and their verdict will not be disturbed on review because the evidence is conflicting. People v. Brady (111.) 1918C- 540. 46. The weight to be given to evidence sub- mitted to a jury whose finding of fact has been approved by the trial and appellate courts cannot be inquired into in the su- preme court where evidence in the record fairly supports the verdict. Scovill Mfg. Co. v. Cassidy (111.) 1918E-604. 47. On writ of error to a state court, it is not the province of the Federal Supreme Court to weigh conflicting evidence, where the record shows testimony supporting the verdict. Great Northern R. Co. v. Donald- son (U. S.) 1918C-581. 48. Excessiveness of damages. Where the trial court has refused to disturb the verdict on account of the amount of damages' re- covered, the judgment should not be reversed, unless the amount is so excessive or so gross- ly inadequate as to indicate prejudice, pas- sion, partiality, or corruption on the part of the jury. Florence Hotel Co. v. Bumpaa (Ala.) 1918E-252. (3) Findings of Court. 49. The trial courts findings in a suit in equity are presumptively correct, and will not be disturbed on appeal unless an obvious error has intervened in the application of the law, or serious or important mistake has been made in consideration of the evidence, especially in a case in which the testimony was taken in open court, so that the trial court had the opportunity of observing the demeanor of the witnesses, while the appel- late court has before it only a condensed printed statement of the evidence. Tobey v Kilbourne (U. S.) 1918C-470. 50. Findings of court of claims. Findings of fact by the court of claims on a claim against the United States arising out of a contract for the manufacture of rapid fire ^uns are conclusive on the Supreme Court. Saalfield v. U. S. (U. S.) 1918E-1. (4) Direction of Verdict or Judgment on Demurrer to Evidence. 51. On appeal from a direction of the ver- dict, the evidence must be viewed in the light most favorable to appellants. Xeely v. Wil- more (Ark.) 191SD-77. 52. In reviewing the evidence, on writ of error to review a judgment on defendant's demurrer to plaintiff's evidence, the court must accept as established by plaintiff what- ever the jury, as reasonable men. might have concluded from the evidence. Greenwood v. Royal Neighbors of America (Va.) 1918D- 1002. (6) Judgment of Intermediate Appellate Court. 53. If the appellate court makes a sufficient finding of fact as to the matters in contro- versy, the only function of the supreme court is to determine whether the law was properly applied to the facts as found. Schaefer v. Washington Safety Deposit Co. (111.) 1918C- 906. 54. Where a court of civil appeals, on ap- peal from judgment for plaintiff in a suit for personal injuries, held that there was no evidence to sustain the verdict, a law ques- tion is presented on error to review such judgment in the supreme court, but a holding that the evidence was insufficient to sustain the judgment does not present a question of law. Wilson v. Freeman (Tex.) 1918D-1203. 55. Sufficiency of finding. A finding of the appellate court that plaintiff has not proved the defendant's liability as alleged, and has failed to prove any actionable negligence aa alleged, is not a finding of fact, but the opin- ion of the court upon the facts. Schaefer v. Washington Safety Deposit Co. (111.) 1918C- 906. 56. Conclusiveness as to amount of dam- ages. In an action by a county against its treasurer for interest on money in his hands as ex officio collector, the judgment of the appellate court is conclusive of the amount of damages. Lake County v. Westerfield (111.) 1918E-102. 57. On error to review the judgment of a APPEAL AXD ERPiOK. 29 court of civil appeals, on appeal in an action against a railroad by its employee for per- sonal injuries, the supreme court cannot hold the verdict not excessive, the sole cause for which the court of appeals reversed, and af- firm the judgment of the trial court for the full amount, the question of excessiveness of verdict in such suit being purely a question of fact, upon which the judgment of the court of civil appeals is final. Wilson v. Freeman (Tex.) 1918D-1203. d. Waiver of Error. 58. Acceptance of benefits. An appellant who has taken the benefit of the provisions of the judgment apportioning and distribut- ing the funds in controversy by receiving and accepting the share thereof awarded to him, is not in position to question such apportion- ment and distribution. Thwing v. McDonald (Minn.) 1918E-420. 59. When a case was reached for trial, appellant applied for a continuance. The court continued the case for trial at a place other than the county seat. It is held that the appellant, having acquiesced in the order and taken the benefit of the continuance, is estopped from now asserting that the court had no authority to make such order. Tlnving v. McDonald (Minn.) 1918E-420. 60. Omission from brief or argument. An exception to which no allusion is made either in the brief or the argument is deemed to be waived. Sroka v. Halliday (R. I.) 1918D- 961. 61. As required by the provisions of rule 34 (164 X. C. 551, 81 S. E. xii), exceptions taken on the trial and not appearing in the brief must be taken as abandoned. Camp- bell v. Sigmon (X. C.) 1918C-40. 62. Objection that shipper did not give written notice of claim in the time provided, not having been urged on the argument and being only mentioned in the brief without discussion, should be considered abandoned under supreme court rule 34 (164 X. C. 551, 81 S. E. xii). Reynolds v. Adam Express Co. (X. C.) 1918C-1071. 63. Pleading after refusal to quash capias. Error in refusing to quash a writ of capias ad respondendum is not subject to review on writ of error after final judgment, but must be raised by habeas corpus or man- damus before pleading. Baxter v. Wood- ward (Mich.) 1918C-946. 64. Plea of guilty. When a defendant pleads to a criminal offense charged in an indictment or an allegation when that is preferred upon indictment being waived he cannot avoid the consequences of his plea and reverse the judgment entered upon it by showing that the preliminary complaint before the magistrate recited a name as that of his accuser other than that in the indictment or allegation, and also because the complaint was signed with still another name being neither the one in the caption of the complaint nor the one used in the in- dictment or allegation; and especially so when no such question was raised in the trial court. State v. Heyer (X. J.) 1918D- 284. 13. Review of Exercise of Discretionary Power. 65. Generally, the discretion of the trial court, in ordering or refusing to order a bill of particulars is not reviewable, unless pos- siblv in- case of abuse of discretion, by Gen. Laws 1909, c. 298, 16, 17, as to new trial and bills of exceptions. State v. Davis (R. I.) 19180-563. 66. Though the appellate court may be- lieve that the weight of evidence is against the verdict, the refusal of a new trial, asked on the ground of insufficient evidence, will not be disturbed, unless it appears that there was abuse of discretion in the refusal. Arm- strong v. Modern Woodmen of America (Wash.) 1918E-263. 14. Presumptions on Appeal. 67. Sufficiency of evidence. Where the record shows that a portion of the evidence is not included, the supreme court will pre- sume that it is sufficient to cure defects in the evidence brought up to establish corpus delicti. Reynolds v. State (Ariz.) 1918D- 879. 68. Facts found. Where the jury were instructed that, if plaintiff failed to prevent squeezing in the mine in question, and negli- gently permitted water to accumulate there- in, plaintiff was not entitled to the posses- sion of the property sued for until the dam- ages occasioned defendants were paid, and the jury found that plaintiff was entitled to the possession of the property, the su- preme court must assume on appeal that there was a preliminary finding that plain- tiff had not broken its contract by failing to prevent squeezing in the mine, etc. Vache v. Central Coal etc. Co. (Ark.) 1918E-198. 69. As to finding of intermediate court. If the appellate court makes no finding of fact, it is presumed to have found the facts the same as did the trial court. Schaefer v. Washington Safety Deposit Co. (111.) 1918C-906. 15. Reversible Error. a. Error Must Be Material. 70. Only those errors which deprive the accused of some substantial right should be held reversible error, and a conviction should be permitted to stand, unless the error com- plained of has caused a substantial injury. Thomas v. State (Miss.) 1918E-371. 71. Where accused had a fair and impar- tial trial, notwithstanding he voluntarily absented himself from the courtroom dur- ing examination of two jurors, one of whom was afterwards accepted and one success- fully challenged, error, if any, in proceeding with the trial is harmless, and under court rule 11 (72 South vii) cannot work reversal. Thomas v. State (Miss.) 1918E-371. 72. Error in permitting a party to testify what an interested witness had said was her 30 ANN. CAS. DIGEST (1918C-1918E). opinion as to the other party's right to re : cover does not require reversal, in view of Pub. Acts 1911, c. 32, providing that no judg- ment shall be reversed for error unless it materially affects the result. Moseley v. Goodman (Tenn.) 1918C-931. b. Error Must Be Prejudicial. (1) Error in Admission of Evidence. 73. The real issue being whether plaintiff's eggs acquired their foreign and unnatural flavor before or after being put in defend- ant's cold storage plant, any error in admis- sion of testimony of the president of the shipping company as to the general course of business of the company, relative to the natural quality of the eggs, as regards de- terioration, when shipped, is harmless. Perry v. Diamond Ice, etc. Co. (Wash.) 1918C- 891. 74. The issue being whether plaintiff's eggs acquired their foreign and unnatural flavor after being put in defendant's cold storage, and defendants manager having on cross-examination stated that it had never permitted fruit to be stored in any room with eggs, except when the owner expressly consented, and that this had been done on a certain occasion in the storing of the eggs of S., testimony of S. that on such occasion he had not consented to the storing of his eggs with fruit, as impeaching testimony on a collateral issue, is of too small consequence to be prejudicial. Perry v. Diamond Ice, etc. Co. (Wash.) 1918C-891. 75. Admission of expert testimony. The decision of the court on the admissibility of expert testimony cannot be reversed unless clearly erroneous. Boutlier v. Maiden (Mass.) 1918CV910. 76. Discrediting character of accused Minimum penalty imposed. Where accused did not take the stand himself, and the jury assessed the lightest possible penalty for murder in the first degree, though the of- fense could have been nothing else, the er- roneous admission of evidence showing accused to have been a frequenter of low sa- loons and dives is harmless. McCue v. State (Tex.) 1918C-674. 77. Cure of error by instruction. In an action for damages for death of plaintiff's intestate, caused by sinking of boat, hired of defendant, in which he had gone rowing, admission of evidence as to condition of other boats kept for hire by defendant is not cured by caution as to weight to be given it; the weight being for jury. Clark v. Detroit, etc. R. Co. (Mich.) 1918E-1068. (2) Exclusion of Evidence. 78. In an action against a hotel keeper for disturbing and humiliating a guest, ex- clusion of a letter intended by the hotel keeper for the guest, but which was never received or opened by him, is harmless error. Florence Hotel Co. v. Bumpas (Ala.) 1918E- 252. 79. In an action against a hotel company for disturbing and humiliating a guest, ex- clusion of evidence that the manager of the hotel had had the house detective hunting for plaintiff is harmless error, where the manager stated without objection that he had made all reasonable efforts to locate plaintiff. Florence Hotel Co. v. Bumpas (Ala.) 1918E-252. 80. The exclusion of questions asked of a witness and to lay a foundation for direct impeachment by proof of contradictory state- ments made by him as a witness in the trial of another case growing out of the same accident are not prejudicial, where witness admits that, if the record on the other case is as stated to him by counsel, he will con- cede that he testified that way, and where a comparison of the record shows no sub- stantial conflict. Chambers v. Minneapolis etc. R. Co. (N. D.) 1918C-954. (3) Other Errors in Relation to Evidence. 81. Refusal to strike Competency sub- sequently shown. Where, in a trial to the court without a jury, the court denies a mo- tion to strike testimony as to the receipt of money by draft in exchange for the re- turn of a deed based on ihe ground that the deed and draft are the best evidence, and testimony is subsequently introduced show- ing that the deed was burned and never re- corded, that the person who sent the draft for the drawer thereof was dead, that neither the drawer nor drawee knew where the draft was procured and that the records of the bank at which the draft was cashed were lost or destroyed, the error in refusing to strike the testimony is not prejudicial. Mc- Keehan v. Vollmer-Clearwater Co. (Ida.) 1918E-1197. 82. Statement of prosecutor as to fact otherwise proved. Where there is abundant other evidence to show that deceased had in his possession a considerable sum of money, the act of the prosecutor in stating to the jury that memoranda found with the body of deceased showed that he was hard- working and had money in his possession is harmless. McCue v. State (Tex.) 1918C- 674. (4) Error in Instructions. 83. Error in instructions on the measure of damages are harmless, where plaintiff, who was shot while hunting, recovered no damages. Gibson v. Payne (Ore.) 1918C- 383. 84. Error in failing to state the plaintiff's theory of her case as clearly as possible is not ground for reversal, if it does not affect the result of the trial, in view of Pub. Acts 1911, c. 32. Moseley v. Goodman (Tenn.) 1918C-931. (5) Error in Submitting Question to Jury. 85. Submitting question of law. The giv- ing of an instruction which left to the jury the construction of a contract which, as matter of law, should have been construed contrary to plaintiff's contention, being error favorable to plaintiff, is not error of which. APPEAL AND ERROR. 31 he could complain. Creditors Nat. Clearing House v. Bannwar* (Mass.) 1918C-130. 86. Where the court should have instruct- ed that plaintiff insured was the owner of property burned, defendant insurance com- pany cannot complain because the question was left to the jury. Waller v. New York Ins. Co. (Ore.) 1918C-139. 87. Submitting question not in issue. Al- though defendant insurance company's al- legations regarding plaintiff's misrepresenta- tions are insufficient, yet instructing that such defense may be waived, constitutes re- versible error where waiver is not an issue. Waller v. New York Ins. Co. (Ore.) 1918A- 139. 88. Submission of issue not controverted. In an action against a railroad, under the federal employers' act, for death of its fire- man when his train was derailed, where the pleadings admit and the proof shows that defendant was engaged in interstate com- merce, and that the train was at the time making an interstate trip, the submission to the jury of the question whether defendant was engaged in interstate commerce at the time of the accident is harmless error. Davia v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. c. Errors Not Available. (1) Questions Not Raised Below. 89. Objections to evidence not brought to the attention of the trial court or based upon exceptions cannot be considered. Baxter v. Woodward (Mich.) 1918C-946. 90. Where a party defendant in a mortgage foreclosure suit did not claim costs below, the trial court's failure 'to allow costs to him will not be reviewed. Simmons v. Northern Pac. R. Co. (Wash.) 1918C-1184. 91. A question not presented and argued in the court below will be held to have been waived and abandoned, and will not be con- sidered in an appellate tribunal. State v. Heyer (N. J.) 1918D-284. 92. Exceptions to findings of fact are im- material where a new trial is necessary be- cause of error in excluding evidence. Davis v. Dunn (Vt.) 1918D-994. 93. Where a Minnesota statute giving at- torneys a lien on the cause of action of their clients was held applicable to an action in the courts of that state, based on the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, and Act April 5, 1910, c. 143, 36 Stat. 291, 8 Fed. St. Ann. [2d ed.] 1208), and that the pleadings showed that the action was one for injuries received in inter- state commerce, and the question of the ap- plicability of the statute was discussed in the state court, a writ of error to review the judgment on the ground that the statute as construed was repugnant to the Constitution and laws of the United States cannot be dis- missed on the theory that the question had not been raised below. Dickinson v. Stiles (U. S.) 1918E-501. (2) Sufficiency of Objection or Exception. 94. Duty to make specific objection. The duty of an attorney as an officer of the court is to assist the court in arriving at a just and lawful conclusion and judgment in every cause; and when he has a proper objection to the pleadings or proceedings, he should point out clearly and specifically the grounds for his objection; and when he fails to make it with such clearness and precision that the court can understand it, he will ordinarily be held to have waived his objection. Fol- ' lowing Riverside v. Bailey, 82 Kan. 429, 431, 108 Pac. 796. Emery v. Bennett (Kan.) 1918D-437. 95. Objections to pleading. Objections made at the trial to the sufficiency of a plead- ing must definitely point out the alleged er- rors, and, when that is not done, the pleading will be liberally construed in order to uphold the judgment. Cleveland v. Bateman (N. M.) 1918E-1011. 96. Where a plea is bad and was properly so held, it is unimportant that the objection was raised below by motion to strike and not by demurrer. Cain v. Osier (la.) 1918C- 1126. 97. Objection to evidence. Objection that' no foundation was laid for impeachment tes- timony cannot be considered on appeal, where the only trial objection to such testimony was that the evidence was immaterial. Baxter v. Woodward (Mich.) 1918C-946. 98. Exceptions to instructions. Instruc- tions given by the court and not excepted to by the defendant at the trial or before the trial court, will not be reviewed on ap- peal, unless fundamental error is appar- ent. Poling v. State (Okla.) 1918E-663. (3) Errors Favorable to Appellant. 99. As the state cannot appeal in criminal cases, the only matter which the court of criminal appeals can review is whether error Was committed against accused; and, if so, was the error prejudicial. McCue v. State (Tex.) 1918C-674. 100. In a trial for obtaining money and property by means of the confidence game, defendants may not object to rulings on the admission and rejection of evidence more fav- orable to them than the law required. Peo- ple v. Brady (111.) 1918C-540. 101. Where defendant was found guilty on several counts, and the prosecutor entered a nolle pros, as to some of the counts, defend- ant was not injured. People v. Brown (111.) 1918D-772. (4) Wrong Reason for Correct Decision. 102. It is not reversible error for a judge to base his correct judgment on the wrong case previously decided, the question being wheth- er the conclusion is right, and not whether the trial judge assigned the right reason for it. Berry v. Marion County Lumber Co. (S. C.) 1918E-877. 103. Where proper findings of fact based upon the evidence have been made, it is not ordinarily important what course of judicial reasoning is announced by the trial court in arriving at its decision when the decision it- 32 ANN. CAS. DIGEST (1918C-1918E). self is correct. Saylor v. Crocker (Kan.) 1918D-473. 16. Decision or judgment of Appellate Court. 104. Reversal without remand. Where plaintiff could not, under any theory under the evidence, recover, a judgment for plain- tiff will he reversed without remand. Con- necticut Fire Ins. Co. v. W. H. Rogers Lum- ber Co. (Va.) 1918E-1045. 105. Remand for further hearing. Where in a suit to set aside an award of arbitrators determining the compensation to which a rail- road which built a bridge was entitled for its use by another road under a common user clause of the city ordinance authoriz- ing the building, it is extremely difficult in the condition of the record to appraise fairly the value of the realty covered by the abut- ments and approaches to the bridge, the cause should be remanded to the trial court for a hearing on the subject, both parties to be privileged to introduce further testimony. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 106. Modification. Where a husband con- tracts to pay a broker a commission for an exchange of property, a judgment, broad enough to be considered as a personal judg- ment against the wife individually, while erroneous does not necessitate a reversal of the judgment, but it will be so modified as to run against the husband and the communitv. Godefroy v. Hupp (Wash.) 1918E-494. 107. Granting new trial. Under Code Civ. Proc. 1346, providing that an appeal may be taken to the appellate division on ques- tions of law or on the facts or on both from a judgment on a verdict, or on trial by the referee or court without a jury, on appeal to the court of appeals from a judgment of the appellate division reversing a judgment for plaintiff entered upon a verdict and dismiss- ing the complaint, where it appears that the appellate division has reviewed the facts and is not satisfied therewith, the court of ap- peals, reversing, should grant new trial. Meisle v. New York Cent. etc. R. Co. (1ST. Y.) 1918E-1081. 108. Objection to form of decree after deci- sion on appeal. No objection to the form of the decree in a suit to foreclose a vendor's lien, based upon the recital therein that plaintiff "do have and recover" a certain sum of money, can be raised in the proceedings had after such decree was affirmed on ap- peal, where this objection was not taken on the appeal. Pease v. Rathbun-Jones Engi- neering Co. (U. S.) 1918C-1147. 109. Instructions on second trial where new issue raised. Where a new issue, raised by the amended pleadings, was the only issue on second trial upon which to instruct the jury, the instructions should have been confined to such issue, as though no former appeal had been taken and without regard to the opin- ion upon such appeal. Mc-Clintock v. McClure (Ky.) 1918E-96. 110. Decision of intermediate court of ap- peal. An appellate court may reverse a judg- ment for error of law or error of fact. If for error of law, which may be corrected en an- other trial, the cause must be remanded; but if for error of fact, where no material evi- dence has been wrongfully excluded, the judgment of the appellate court may be final, but the other facts on which the judgment rests must be found and recited in the judg- ment. Schaefer v. Washington Safety De- posit Co. (111.) 1918C-906. 17. Supersedeas and Bond. a. In General. 111. Deposit in lieu of bond. Xo order of court is required to allow the making of a deposit in lieu of an appeal bond, as au- thorized by Gen. St. 1913. 8002. Timing v. McDonald* (Minn.) 1918E-420. 112. The deposit, made in lieu of an appeal bond, pursuant to Gen. St. 1913, 8002, being conditioned only for payment of the costs of appeal, does not stay proceedings on the judg- ment. Thwing v. McDonald (Minn.) 1918E- 420. 113. Necessity for undertaking by state in divorce case. It is not ground for the dis- missal of an appeal by the district attorney in a suit for divorce that he filed no under- taking; L. 0. L. 578. expressly excusing the state from filing an undertaking. Smythe v. Smythe (Ore.) 1918D-1094. b. Amendment of Bond. 114. An amended undertaking on appeal given in response to a motion to dismiss, questioning the sufficiency of the undertak- ing, should be filed upon leave obtained from the supreme court, and as an independent pleading in the proceeding. Smith v. Dwight (Ore.) 1918D-563. c. Summary Judgment against Sureties. 115. A federal court of equity is not with- out jurisdiction on the ground of the exis- tence of an adequate remedy at law to ren- der a summary judgment, conformably to the local law, against sureties on an appeal bond, where the decree appealed 'from has been affirmed. Pease v. Rathbun-Jones En- gineering Co. (U. S.) 1918C-1147. (Annotated) 116. The constitutional right of trial by jury presents no obstacle to the rendition by a federal district court, conformably to the local law. of a summary judgment against the sureties on an appeal bond upon the af- firmance of the decree appealed from, since a person, by becoming a surety, submits him- self to be governed by the fixed rules which regulate the practice of the court. Pease v Rathbun-Jones Engineering Co. (U. S.) 1918C-1147. (Annotated) 117. In an action against a railroad com- pany and others, where the road's appeal, as stated by the notice thereof, is "from a judg- ment in favor of the plaintiff," and its super- sedeas bond recites that the road "desired to appeal from the judgment and the whole and every part thereof, the remitittur on affirm- ance, directing judgment on the supersedeas APPEARANCE ARBITRATION AND AWARD. 33 bond in favor of the plaintiff against the road and the sureties on the supersedeas bond for a money judgment recovered against other defendants, judgment in the trial court hav- ing gone against the railroad only to the extent of barring any interest in certain prop- erty, except a right of way, and for costs, is proper, and not open to modification. Sim- mons v. Northern Pac. R. Co. (Wash.) 1918C- 1184. (Annotated) 118. A decree entered pursuant to the man- date of a federal circuit court of appeals in an action to foreclose a vendor's lien is not void in so far as it orders a deficiency execu- tion to issue against the defendant and the sureties on his appeal bond, where the or- iginal decree, which the circuit court of ap- peals affirmed, adjudged that plaintiff "do have and recover" a certain sum of money, established a lien on certain property, and ordered the sale thereof to satisfy the judg- ment if not paid in a specified time, and the mandate from the appellate court command- ed that "such execution and further pro- ceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had." Pease v. Rathbun-Jones Engineering Co. (U. S.) 1918C-1147. 119. Waiving notice. The jurisdiction or power of a federal district court to render summary judgment against the sureties on an appeal bond upon an affirmance of the decree appealed from, and without notice to the sureties, may not be questioned after the parties have, by motions subsequently filed, invoked a decision of the court upon the question of the sureties' liability on the evi- dence presented by them, no relevant fact being in dispute. Pease v. Rathbun-Jones Engineering Co. (U. S.) 1918C-1147. (Annotated) 120. Effect of payment to preclude re- view. The payment by a surety on the ap- peal bond of a dissolved corporation, "as trustee for himself and the other stockhold- ers," of the deficiency execution issued on the ' bond upon the affirmance of the decree ap- pealed from relieves an appellate court from the necessity of determining whether the trial court erred in entering judgment against the sureties for the deficiency instead of judg- ment merely for the costs and any damages to the plaintiff resulting from the delay in- cident to the unsuccessful appeal. Pease v. Rathbun-Jones Engineering Co. (U. S.) 1918C-1147. 18. Costs. 121. Fees for serving papers. Sheriff's fees for serving notice of appeal, as well as the record and briefs, on defendants, who were not adverse parties, cannot be allowed as part of appellant's costs and disbursements. Thwing v. McDonald (Minn.) 1918E-420. 122. Where notice of appeal is served on the attorney for a party, appellant is not entitled to costs for service of notice on the parties; such service being unnecessary. Thwing v. McDonald (Minn.) 1918E-420. 123. Expenses for the serving of notice of Ann. Cas. Dig. 191SC-E. 3. an appeal by a private party cannot be al- lowed appellant as costs. Thwing v. McDon- ald (Minn.) 1918E-420. 124. Cost of papers not used in appeal. Costs cannot be allowed appellant for cer- tified copies of the records, where it did .not appear that they were for use in the appellate court. Thwing* v. McDonald (Minn.) 1918E- 420. 19. Rehearing. 125. To suggest or set up a federal question for the first time in a petition for rehearing in the highest court of the state is not in time. Wren v. Dixon (Nev.) 1918D-1064. 126. Where at the original hearing on ap- peal a decree setting aside an award by arbi- trators was affirmed and compensation for the use of a railroad bridge by another rail- road was determined by the court, which compensation included a requirement that the using railroad should pay a specified per cent of the interest charged on the cost of the bridge, on which question there was no argument in the court below or on the original hearing, the original opinion will be withdrawn as to that provision and the cause remanded to the lower court for a hearing thereon. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. APPEARANCE. 1. By partner. Under Rem. & Bal. Code, 241, declaring every appearance general unless defendant states it to be special, the answer stating "come now defendants R. and C. as a member of the firm of D. & Co., and not otherwise." ie, notwithstanding prior successful special appearance by C., to quash service against him, a general appearance, bringing him into court not only as a part- ner but an individual, individual liability being the essence of partnership obligations. National Union F. Ins. Co. v. Dickinson (Wash.) 1918C-1042. APPLIANCES. Master's duty as to, see MASTER AND SERV- ANT, 4, 5. ARBITRATION AND AWARD. 1. Agreement to Arbitrate, 34. 2. Award: a. Setting Aside or Impeachment, 34. b. Effect of Award, 34. c. Enforcement, 34. Award by arbitrators pending execution of contract as modification of contract, see CONTRACTS. 27. Construction of provision in charter party for settlement of all disputes by arbi- tration, see SHIPS AND SHIPPING, 1, 2, 4. 34 ANN. CAS. DIGEST (191SC-1918E). Enforceability of foreign contract to arbi- trate, see CONFLICT OF LAWS, 1. 1. Agreement to Arbitrate. L Where a lease granted the lessee the privilege or option to purchase the property after ten years at a value to be determined by "appraisal," and provided that the deci- sion of any two of the three appraisers should be binding on the parties, the ar- rangement to have the value of the lots' fixed by appraisers was not an agreement to sub- mit to arbitration, revocable by the lessee, but an irrevocable agreement made before controversy, to leave the incidental matter of price to appraisers or referees, and sub- lessees having refused to abide by the de- cision of two appraisers, after exercising their option to purchase, could be compelled to perform by bill for specific performance. Martin v. Vansant (Wash.) 1918D-1147. (Annotated) 2. Revocation. At common law, the pow- er of arbitrators to make a binding award is subject to revocation at any time before an award is made, unless the submission is governed by statute or made a rule of court, the remedy of the aggrieved party in case of revocation being an action in damages for breach of the agreement to arbitrate. Martin v. Vansant (Wash.) 1918D-1147. (Annotated) 2. Award, a. Setting Aside or Impeachment. 3. The rule that a judgment of the chancel- lor cannot be substituted for that of arbi- trators does not prevent courts of equity from setting aside awards of arbitrators for fraud or mistake. Oregon -Washington, R. etc. Co. v. Spokane (Ore.) 1918C-991. 4. An award of arbitrators may be im- peached for their mistake in setting down their conclusion, although the mistake ap- pears dehors the award only. Black v. Wood- ruff (Ala.) 1918C-969. (Annotated) 5. While an award of arbitration entered in a pending suit is not open to collateral at- tack, its correctness may be attacked in a proceeding for its specific enforcement, al- though the defense is not brought forward by a cross bill. Black v. Woodruff (Ala.) 1918C-969. (Annotated) 6. Estoppel. A party to an award of ar- bitrators is under no obligation to be present when the award is made, and failure to be present does not estop him from attacking the correctness thereof. Black v. Woodruff (Ala.) 1918C-969. (Annotated) 7. Evidence. In a suit to set aside an award of arbitrators on the ground of mis- take, affidavits showing facts subsequent to the award have no bearing on the question of whether it should be set aside, but may be considered by the court at the hearing after the award has been vacated. Oregon- Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 8. Tn a suit to set aside an award by ar- bitrators on the ground that because of mis- take the award did not represent the judg- ment of the arbitrators, the evidence taken before the arbitrators is competent and ma- terial. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 9. In a suit to set aside an award of the railroad commission sitting as arbitrators to determine the compensation of a railroad which built a bridge for its use by another road, the evidence is held to sustain finding that the award so entirely disregarded, mis- took, and misapplied the evidence introduced at the hearing before the commissioners as to deprive plaintiff road of its rights in the bridge, and of its rights in the ordinance of a city authorizing its building and containing a common user clause and in the resolution and order of the secretary of war authoriz- ing the bridge. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. (Annotated) 10. Matters to be determined. In suit to set aside an award of the railroad commis- sion sitting as arbitrators to determine the compensation to which a railroad which built a bridge was entitled for its use by another road, where the answer of such other road asked general equitable relief, the court, having set aside the award as inadequate, should proceed to determine the reasonable compensation to be awarded. Oregon-Wash- ington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918O991. 11. Decree. Where the parties to a suit to set aside an award of arbitrators agreed before the arbitrators on stipulations modi- fying the common-law rules of liability in the matter which the arbitration concerned, such stipulations, incorporated in the award, should be made part of the decree setting it aside and correcting its errors. Oregon- Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 12. Resubmission. In suit to set aside an award of arbitrators, in the absence of agree- ment by the parties, the court is not au- thorized to resubmit a question to the board of arbitrators. Oregon-Washington R. etc. Qo. v. Spokane, etc. R. Co. (Ore.) 1918C- 991. b. Effect of Award. 13. Modification. Where arbitrators have returned an award in a pending suit, they are powerless subsequently to modify it, since their authority ceases upon the return of the award to the court. Black v. Woodruff (Ala.) 1918C-969. c. Enforcement. 14. Absence of order authorizing award. An award by arbitrators made in a suit to rescind a land contract may be enforced by specific performance, although the award could not be entered as a decree because of failure to have a preliminary order of the court authorizing it. Black v. Woodruff (Ala.) 19180-969. 15. Effect of mistake. Tn a suit to re- scind a land contract, the parties agreed to ARCHITECTS ARMY AND NAVY. 35 submit the amount of reimbursement to arbi- tration. The arbitrators returned an award in two separate papers, one of which de- termined that defendant pay to plaintiff a certain sum, with half of the costs of the arbitration and certain witness fees. The other determined that plaintiff pay to de- fendant a certain smaller sum for rent and half of the costs of arbitration and for wit- ness fees. The two sums were then added, and the amount which plaintiff had to pay was subtracted therefrom, and the result filed as the award. Defendant claimed that the sums of the two parts of the award should have been subtracted, making him liable for that difference only. It is held that it was error to enforce specifically the award as made; it not expressing the actual decision of the arbitrators. Black v. Wood- ruff (Ala.) 1918E-969. (Annotated) ARCHITECTS. Necessity for architect's certificate under building contract, see CONTRACTS, 31, 32 ARGUMENT AND CONDUCT OP COUNSEL. See ATTORNEYS. 1. Right to open and close. Under Code 1906, 2864, providing that, on trial of an issue on an avowry, the burden of proof shall be on the avowant, the landlord, and he shall have the right to open and conclude the argument, when an issue has been ten- tered on the avowry, denying the allega- tions of the avowry, the burden is on the landlord, or avowant, and if the relation of landlord and tenant, the amount of the con- tract, or the amount of supplies furnished, is denied, the landlord must assume the bur- den and prove his contention, but if the re- lation be admitted, and the amount of the rent contract for supplies furnished is not denied, no issue is made on the avowry, and, if plaintiff undertakes to confess and avoid by an affirmative plea setting up new matter, and issue is tendered on the plea, the burden shifts, plaintiff assuming it, and having the right to open and conclude the evidence and argument. McNeer v. Xorfleet (Miss.) 1918E-436. 2. Reference to race of accused. On the trial of a negro charged with the murder of a white man. before a jury of white men, the county attorney in his opening argument referred to the defendant as ''this black mur- derer." On objection being made, the court admonished counsel to be temperate in his remarks. The county attorney in his closing argument referred to the defendant as "this coal-black murderer." Again, objection being made, the court peremptorily overruled the same. The language objected to, held to be grossly improper, and prejudicial to the defendant; and the refusal of the court to interfere and to properly instruct the jury to disregard the same prejudicial error. More- head v. State (Okla.) 1918C-416. 3. Reference to financial condition of plain- tiff. In an action for slander, where the mis- conduct of plaintiff's counsel in arguing to the jury the financial condition of plaintiff is partially responsible for the excessive ver- dict, it is prejudicial error, although the dis- cussion was started by defendant's counsel in his address to the jury, and the misconduct of counsel is ordinarily a matter for the dis- cretion of the trial court. Cain v. Osier (la.) 1918C-1126. 4. Challenging opponent to waive rights. On the trial of a will contest it is im- proper and prejudicial for the contestant's attorney repeatedly to challenge the attorney for the proponents to waive the statutory prohibition against evidence of interested witnesses as to personal transactions with the decedent, and to state that proponents would take advantage of every possible tech- nicality, and that one of the proponents mar- ried a domestic in the testator's family for the purpose of making her an incompetent witness. In re Connor's Will (la.) 1918C- 378. (Annotated) ARMY AND NAVY. 1. Validity of conscription act. Selective Draft Act of May 18, 1917, c. 15, 40 Stat. 76 (Fed. St. Ann. Pamph. Supp. No. 11, p. 85), is valid, in so far as it authorizes the Presi- dent to make rules and regulations for its enforcement having the effect of law, and is not open to attack as a delegation of legisla- tive authority. Franke v. Murray (U. S.) " 1918D-98. (Annotated) 2. Persons subject to military law. Re- peals by implication are never favored, and only when the two acts are totally incon- sistent will the older be held repealed by the later. Therefore Articles of War, art. 2 (Fed. St. Ann. Pamph. Supp. No. 8, p. 287), de- fining persons subject to military law, is not repealed by section 6 of the selective draft act, declaring that a violation of any of the provisions of the act shall be a misdemeanor. Franke v. Murray (U. S.) 1918D-98. 3. The provision of Selective Draft Act, 6, that it shall be a misdemeanor to violate any of the provisions of the act or regula- tions made thereunder, does not preclude punishment under military law by one sub- ject thereto, because he was duly certified into the service; the section itself expressly excepting those subject to military law. Franke v. Murray (U. S.) 1918D-98. 4. Articles of War, art. 109 (Fed. St. Ann. Pamph. Supp. No. 8, p. 305), requiring every soldier at the time of his enlistment to take an oath of allegiance, applies only to volun- tary enlistment, and one certified into mili- tary service under the selective draft act cannot escape liability to military law be- cause he had not taken the required oath. Franke v. Murray (U. S.) 1918D-98. (Annotated) 5. Review of draft board. While, under the selective draft act, questions of exemp- tion on account of membership in a religious sect opposed to war are for determination 36 ANN. (AS. DIGEST (191C-19lSl: ). of the local and district boards, and their finding cannot be reviewed by the courts, unless they were without jurisdiction or de- nied a fair hearing, registrants are not de- prived of due process of law. Franke v. Murray (U. S.) 1918D-98. (Annotated) 6. The determination by local and district boards provided for by the selective draft act of questions of exemption is conclusive, and cannot be reviewed by the courts, unless the boards were without jurisdiction, or a fair hearing was denied. Franke v. Murray (U. S.) 1918D-98. (Annotated) 7. Desertion. Selective Draft Act, 2, provides that all persons drafted into the service of the United States shall, from the date of the draft or acceptance, b subject to the laws and regulations governing the regular army. Articles of War (Rev. St. 1342, as amended by Act Aug. 29, 1916, c. 418, 3), art. 2, 39 Stat. 651 (Fed. St. Ann. Pamph. Supp. No. 8, p. 287), declares that all officers and soldiers belonging to the regular army, all volunteers, from the date of their muster or acceptance, and all other persons lawfully called, drafted, or ordered into or to duty or for training in the service, from the dates they are required by the terms of the called draft or order, are persons subject to military law. It is held that one certified into military service under the draft act is from the date of the draft subject to military law, and to punishment as a deserter on account of his refusal to obey the summons. Franke v. Murray (U. S.) 1918D-98. 8. Receiving property of soldier. Under the act (Army Act 1881, 156, subsec. 1) penalizing any person who "buys, exchanges, takes in pawn, detains or receives" from a soldier any government stores the detention contemplated is from the government and not from the soldier. Pullen v. Carlton (Eng.) 1918D-1201. (Annotated) 9. Demand and refusal are not necessary to fix the liability under the statute for de- taining property. Pullen v. Carlton (Eng.) 1918D-1201. (Annotated) ASSAULT. Liability of railroad for assault on passen- ger, see CARRIERS OF PASSENGERS, 10. Necessity of finding degree of crime in prose- cution for assault with intent to kill, see VERDICT, 6, 7. 1. Assault with intent to kill Indictment. An information, which alleges that accused did commit the crime of assault with intent to kill a person named, by then and there wilfully and feloniously shooting at the per- son named with a loaded pistol with intent to kill him, states the offense denounced by Pen. Code, 285, punishing assaults with intent to kill. State v. Morse (S. D.) 1918C- 570. 2. Issue of self-defense. Where, on a trial for assault with intent to kill by shooting, accused admitted that, in pointing the re- volver at prosecutor, he intended to "bluff" him into talking sensibly, and claimed that it was the pressure of the hand of prosecutor on accused's hand in which the revolver was held that 'caused its discharge, and there was evidence that prosecutor had a few min- utes previously called accused a vile name, that the parties had separated, and accused was searching for prosecutor at the time of the shooting, the issue of self-defense is not raised so as to require an instruction thereon. State v. Morse (S. D.) 1918C-570. ASSESSMENTS. See BENEFICIAL ASSOCIATIONS, 4-11. For public improvements, see TAXATION, 49 Of tax, see TAXATION, 5-20. ASSESSOR. Nature of duties, see TAXATION, 5. ASSETS. Of decedent's estate, see EXECUTORS AND AD- MINISTRATORS, 12. ASSIGNMENTS. 1. What May Be Assigned, 36. 2. What Constitutes Assignment, 37. 3. Construction and Effect of Assignment, 37. See ASSIGNMENTS FOR BENEFIT OF CREDITORS. Of accounts to mortgagee as collateral se- curity, see CHATTEL MORTGAGES, 7. 8. Of corporate stock as security, see PLEDGE, 3. Of lease, see LANDLORD AND TENANT, 11, 16, 17. Of note secured by deed of trust, see MORT- GAGES, 8, 9. Of unlocated certificate of public lands, see PUBLIC LANDS, 8. Giving bill of sale as security as assignment within condition of fire insurance poli- cy, see FIRE INSURANCE, 9. Priority between lien claimant and assignee of fund due contractor, see MECHANICS' LIENS, 14, 15. Validity of assignment of corporate stock as collateral security as against trustee in bankruptcy, see BANKRUPTCY, 2. 1. What May Be Assigned. 1. Prohibiting assignment to nonresident for collection. Sess. Laws 1910, 2, c. 14, p. 19 (section 2912, Rev. Laws 1910), inhibit- ing any assignment of a claim or debt for the purpose of attachment, garnishment, or other mesne process, outside of this state, when the creditor, the debtor (being a citizen of this state), and the person or corporation owing the money intended to be reached by such process are all within the jurisdiction of this state, is within the police power of the state ASSIGNMENTS. 37 and is constitutional and valid to the extent of such inhibition. (a) As to whether the further provision in said section that, in such situation of all such parties, any assignment of a claim or debt ''which is thereafter attempted to be collected out of the wages or personal earn- ings of the debtor, in courts outside of the state of Oklahoma," is prohibited, is constitu- tional and valid, is not determined; but its constitutionality is doubted. St. Louis, etc. R. Co. v. Crews (Okla.) 1918C-823. 2. Assignment of statutory liability of cor- porate officer. Claims against corporate offi- cers arising from the incurring of debts by the corporation while less than half its capi- tal stock was subscribed with their knowl- edge, under the liability therefor imposed by St. 1913, 1774n, are assignable, since such section imposes a contractual relation on the officers and not a penalty in its strict sense. Weston v. Dahl (Wis.) 1918C-922. Progress payment. An assignment of a progress payment for work done under a contract for a public improvement is valid the municipality not objecting as against any rights of a subcontractor who thereafter served notice on the municipality to withhold payment, as permitted by Cal. Code, Civ. Proc. 1184, although such assignment did not receive the consent of the board of pub- lic works, and the contract expressly pro- vides that without such consent the contrac- tor shall not "either legally or equitably assign any of the moneys payable under the contract or his claim thereto." Portuguese- American Bank of San Francisco v. Welles (U. S.) 1918D-643. (Annotated) 2. What Constitutes Assignment. 4. A written order by a contractor to a county to pay a bank money due on a month- ly estimate of work done and "all retained percentage" was an "equitable assignment" of the designated money. Wasco County v. New England Equitable Ins. Co. (Ore.) 1918E-656. 5. Building contracts. Where a city, which has contracted for paving work, retains, un- der the contract, from an amount paid the contractor, a fund to satisfy the claim of a subcontractor, which is one of the items or payments shown on the voucher and war- rant check by which final settlement with aird payment to the contractor are made, and the indorsement of the warrant check by the contractor is declared to constitute "a release for the items and amounts stated in the body of the warrant," the effect of the indorsement of the warrant is that of an equitable assignment to the subcontractor of the fund retained, and the assignees for the benefit of the creditors of the contractor can- not claim the fund against the subcontractor in the absence of evidence that the claim has been fully discharged. Kellas v. Slack, etc. Co. (Md.) 1918D-640. (Annotated) 6. The provision, in a city's contract for paving work, that the city may retain from payments due the contractor sufficient to sat- isfy claims filed for labor and material for the work, does not give a subcontractor a lien on the money retained by the city, and does not operate as an equitable assignment of the fund. Kellas v. Slack, etc. Co. (Md.) 1918D-640. (Annotated) 7. Where a bank pays and takes assign- ments of labor and material claims, as the materialman or laborer's claim against the contractor's bond is ancillary to and depend- ent upon his right against the contractor, an assignment of the right against the con- tractor operates as an equitable assignment of the right against the bond. Northwestern Nat. Bank v. Guardian Casualty, etc. Co. (Wash.) 1918D-644. (Annotated) 3. Construction and effect of Assignment. 8. Validity against garnishing creditor. Where a defendant corporation assigned to a bank the proceeds of a contract due and to become due for furnishing materials and labor to a building contractor, such assign- ment is valid as against a garnishment of the funds in the hands of the building con- tractor. Hall v. Kansas City Terra Cotta Co. (Kan.) 1918D-605. (Annotated) 9. Such an assignment is not a chattel mortgage requiring registration to be valid against the claim of another creditor pro- ceeding by writ of garnishment. Hall v. Kansas City Terra Cotta Co. (Kan.) 1918D- 605. (Annotated) 10. Priority of assignee. Assignment to a bank of all moneys to become due to con- tractors as security for notes taken and filed with the city comptroller prior to any notice that labor and material claims have not been or will not be paid, the contract containing no provision for, an absolute reserve for labor and material claims, but only permit- ting the city to withhold payment until sat- isfied that all such claims have been paid, and nothing having been held up by the city at the ' time the assignments were made, must be treated as a valid appropriation to the bank's notes of the fund afterward paid into court by the city, superior to any right of laborers or materialmen, and hence superior to any right of subrogation in the surety, as the bank has a superior equity. Northwestern Nat. Bank v. Guardian Casual- ty, etc. Co. (Wash.) 1918D-644. (Annotated) 11. .Assignments of labor and material claims are not. because of the agreement be- tween the contractor and bank to advance money for this purpose, extinguished, so far as the bond is concerned, upon their payment by the bank, but the bank had the same right to purchase and take assignment of the claim as anyone else. Northwestern Nat. Bank v. Guardian Casualty, etc. Co. (Wash.) 1918D-644. (Annotated) 12. Where a bank pays and takes assign- ments of the claims for labor and material under an agreement with the contractor, the surety cannot claim that because it was not surety for claims for money advanced by the bank to the contractor, but only for labor and material claims, as between the bank and the surety, a fund paid into court by the 38 AKN T . CAS, DIGEST (1U1SC-1918E). city should be first applied to the assigned claims and not the contractor's prior claim. Northwestern Nat. Bank v. Guardian Casual- ty, etc. Co. (Wash.) 1918D-644. (Annotated) 13. The claims of two subcontractors and their bookkeeper, not being lienable claims, are not assertable against either the fund paid into court by the city or against the contractor's bond to the exclusion of the surety's right of subrogation, and the as- signment of their claims carry no rights ex- cept rights of action against the contractors personally. Northwestern Nat. Bank v. Guardian Casualty, etc. Co. (Wash.) 1918D- 644. (Annotated) 14. Money due on a contract, but retained by a county until completion and acceptance of work, was by written order assigned by the contractor to a bank in consideration of money loaned the contractor and .used by him to pay for labor and material which he was bound by his contract to pay for. The contractor's bond, as required by law, obliged the surety to pay for labor "and material and also to complete the work. The con- tract provided, as required by Laws 1913. p. 251, for retention of the money assigned until completion and acceptance of the work. It is held, that on the contractor's default, until claims for labor and material were paid, the county's right to the fund assigned was su- perior to that of the assignee bank, and that when the contractor's surety paid for labor and material as required, it was entitled to be subrogated, as against the bank, to the rights of the county as of the date of its con- tract, and hence the surety's right to the fund was superior to the assignment to the bank, which was bound to know, when it vol- untarily loaned its money, of the surety's equity in the funds reserved. Wasco County v. New England Equitable Ins. Co. (Ore.) 1918E-656. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See ASSIGNMENTS; BANKRUPTCY. 1. Rights of assignee. Assignees for the benefit of the creditors of a contractor with a city for paving work are not bona fide pur- chasers for value, but stand in the place of the assignor, and take the property subject to all equities against it. Kellas v. Slack, etc. Co. (Md.) 1918D-640. ASSUMPSIT. Implied contract to pay broker's commission, sro BROKERS, 4, 5. Waiver of tort and suit in assumpsit, see TOBTS, 2. 1. Foundation of action. The action for money had and received was invented to se- cure relief from restrictions of the common- law forms of procedure which afforded no remedy in too many cases of merit. The action is a modified form of the action of as- sumpsit. It is founded on the principle that no one ought to unjustly enrich himself at the expense of another, and the gist of the action is that the defendant has received money which in equity and good conscience should have been paid to the plaintiff, and under such circumstances that he ought, by the ties of natural justice, to pay over. Hey- wood v. Northern ASSUT. Co. (Minn.) 1918D- 241. (Annotated) 2. Money had and received. Whether the action for money had and received can be maintained by a claimant of money, to re- cover from another claimant who has re- ceived the money, is not involved in this case. Hey wood v. Northern Assur. Co. (Minn.) 1918D-241. 3. The question in this case is: Where one person procures a payment of money, which he knows is due to another, can the person who was entitled to receive the money main- tain an action against him for money had and received? The action lies under the facts of this case, and the question stated must receive an affirmative answer. Hey- wood v. Northern Assur. Co. (Minn.) 1918C- 241. (Annotated) 4. The action does not fail because tne payment did not destroy plaintiff's right of action against his debtor who has paid the money to defendant. Nor is privity or prom- ise necessary to sustain the action. To say that the law supplies the promise is but to indulge in legal fiction. There is no place for legal fiction in modern law. Heywood v. Northern Assur. Co. (Minn.) 1918D-241. (Annotated) 5. The decision of the courts of Michigan, in which state this cause of action arose, are not out of accord with this ruling. Heywood v. Northern Assur. Co. (Minn.) 1918D-241. 6. Necessity of quantum meruit count. A quantum meruit count is now obsolete, and is no longer necessary in an action in as- sumpsit containing the common counts for work and labor done. etc. Parkersburg. etc. Sand Co. v. Smith (W. Va.) 1918E-449. ASSIGNMENTS OF ERROR. See APPEAL AND ERROR, 30-33. ASSOCIATIONS. See BENEFICIAL ASSOCIATIONS ; BUILBING AND LOAN ASSOCIATIONS; CORPOBATIONS. ATTACHMENT. See EXECUTIONS; GARNISHMENT. 1. Levy on community property. Where an attachment is levied upon the community property alone, it is not necessary to name the wife as a party to the attachment. Godefroy v. Hupp (Wash.) 1918E-494. 2. Time for moving for dissolution. ATTESTATION ATTORXEYS. 39 W\here no motion was made to dissolve an at- tachment because levied upon community property without naming the wife as a party to it, and the record shows no motion to dis- solve the attachment for that reason, it is too late to seek such dissolution after it was carried into the judgment. Godefroy v. Hupp (Wash.) 1918E-494. 3 Effect of judgment not providing for sale. Under L. 0. L. 308, providing that, if judgment is recovered for plaintiff, the court shall order the attached property sold to satisfy his demands, a judgment for the amount demanded, not providing that the attached property should be sold to satisfy it or preserve the attachment lien, operates as a waiver of the lien. Smith v. Dwight (Ore.) 1918D-563. 4. Description of property. Under a de- fault judgment, not providing that the at- tached property shall be sold to satisfy it, an attachment execution commanding the sher- iff to sell the attached realty, describing the land as in "10 west," without giving the range or county in which it is situated, is not authorized by the judgment. Smith v. Dwight (Ore.) 1918D-563. 5. Necessity of levy. A levy of a writ is not an essential requirement, where there is a pre-existine lien of the judgment upon the property to He sold. Smith v. Dwight (Ore.) 1018D-563. 6. Effect of failure to docket judgment. Under L. 0. L. 233, directing that, when the writ of execution is against the property of the debtor, it shall be executed by levy, according to section 300, which requires* a writ of attachment to be executed by delivering to the county clerk the designated certificate showing that the property has been attached, the failure to docket the judgment in the lien docket or to make any further levy is a fail- ure to levy, where the attachment lien has been waived. Smith v. Dwight (Ore.) 1918D- 563. ATTESTATION. Of wills, see WILLS, 3, 4, ATTORNEYS. 1. Status, Admission and Right to Practice, 39. 2. Relation of Attorney and Client, 39. 3. Compensation of Attorneys, 40. 4. Lien of Attorneys, 40. 5. Disbarment, 41. See ARGUMENT AXD CONDUCT OF COUNSEL. Attorney drawing will who is also partner of attorney for proponents of will as com- petent witness in probate proceedings, see WITNESSES, 1. Briefs of counsel on appeal, see APPEAL AND ERROR, 34. .Criticism of opposing attorney in law suit as privileged communication, see LIBEL AND SLANDEB, 12, 13. Effect of war or irrevocable power of attor- ney, see ALIENS, 4. Power of attorney, see AGENCY. 5. Eight of accused to counsel before pleading, see CRIMINAL LAW, 3. Validity of contract contemplating practice of law by corporation, see CONTRACTS, 15. 1. Status, Admission and Right to Practice. 1. What constitutes practice of law. A contract whereby a corporation agreed to use its best efforts to enforce claims placed with it, for collection, which contract provided for payment of an attorney's fee to the cor- poration on any claim placed with its legal department for enforcement and offered free legal advice, constituted an undertaking by the corporation to maintain a law depart- ment, and through such department- give free legal advice and to perform the services of AH attorney in collecting claims; and hence by the execution thereof the corporation held itself out to be lawfully qualified to practice law. Creditors Xat. Clearing House v. Bann- wart (Mass.) 1918C-130. 2. Relation of Attorney and Client. 2. Estoppel to deny validity of contract of employment. Where a husband contracted with his attorney to conduct litigation touch- ing the community property, agreeing to pay twenty-nYe per cent of the proceeds, and the wife showed interest in the litigation when the attorney saw her and she inquired as to the progress of the case, she being a party plaintiff or defendant to every suit, such wife may not deny the validity of the attor- ney's contract for compensation with the husband on the ground she did not sign it. Thomas v. Scougale (Wash.) 1918CM52. 3 Validity of transaction with client. An attorney is held to a strict accountability in all his professional relations with his clients, and any undue advantage gained by the at- torney over his client by deception or undue influence while the relation exists will not be upheld by the courts. Armstrong v. Morrow (Wis.) 1918E-1156. 4. Where defendant was deceased's inti- mate friend and attorney and advised and assisted him in legal matters and business transactions for many years, it is incumbent upon him to show that in all fiduciary deal- ings with deceased he acted in good faith and without disadvantage to his client, and the burden is upon him to show affirmatively, either that he paid an adequate consideration for an assignment of a mortgage, or that a gratuity was intended, and that no advan- tage was taken of the confidential relations. Armstrong v. Morrow (Wis.) 1918E-1156. (Annotated) 5. That a client lived for four years after an assignment of a mortgage to his attorney without taking steps to set the assignment aside does not bar an action bv his executor. 40 ANK CAS. DIGEST (1918C-1918E). where the confidential relation and undue in- fluence existing before the assignment con- tinued thereafter to about the time the client died, and there was nothing to arouse him to action. Armstrong v. Morrow (Wis.) 1918E-1156. 3. Compensation of Attorneys. 6. Fee for collection of claim against gov- ernment. So much of the Act of March 4, 1915 (38 St. L. 996, ch. 140, 4) as provides that not more than twenty per cent of the sum thereby appropriated to the payment of civil war damage claims shall be paid to an attorney as a fee for collecting the claim is, as to contracts made before its enactments, invalid. Newman v. Moyers (D. C.) 1918E- 528. (Annotated) 7. Act Cong. March 4, 1915, c. 140, 4, 38 Stat. 996, prohibiting an amount in excess of twenty per cent of the amount collected to be paid to the attorney collecting Civil War claims included under the bill, is unconsti- tutional and invalid, under Const. U. S. Amend. 5, as to attorneys who have per- formed their services and secured the allow- ance of claims prior to its enactment, since they have then a vested property right, which cannot be destroyed by arbitrary act of Congress. Moyers v. Memphis (Tenn.) 1918C-854. (Annotated) 8. Provision of Act Cong. March 4, 1915, c. 140, 4, 38 Stat. 996, making appropria- tion fpr payment of a claim against the United States, previously allowed by the court of claims, limiting attorneys' fees for services in connection with the claim to twenty per cent of the amount appropriated, and making it unlawful to receive more, pre- vents action for more, the prior contract to pay the attorneys, for prosecuting the claim, a third of "the amount which may be allowed on said claim," and providing for the govern- ment paying the claim through them, and giving them a lien on the payment for the fee, creating ho debt for services till the ap- propriation was made; the phrase in the con- tract "the amount which may be allowed on said claim," referring to the amount realized from the government, and not the mere al- lowance by the court of claims. Ralston v. Dunaway (Ark.) 1918C-870. (Annotated) 9. Contingent fees. While the courts do not always favor contingent fees, and look with some suspicion upon them, especially where the amount agreed to be paid repre- sents fifty per cent of the total claim, still the trend of judicial decision is in favor of upholding and enforcing such contracts, where no question of fraud, misrepresenta- tion, or unfair dealing is raised. Moyers v. Memphis (Tenn.) 1918C-854. 10. A contract between an attorney and a city, by which the attorney is to receive fifty per cent of the amount collected from the government on a claim arising out of the Civil War. is legal and valid, and not against public policy. Moyers v. Memphis (Tenn.) 1918C-854. 11. An attorney whose client contracted to pay him twenty-five per cent of the proceeds of litigation touching timber lands, and who recovered for the client, by joining in the foreclosure suit of the client's mortgagee,' a one-third interest in twenty acres of land not covered by the mortgage nor by the sheriff's deed after foreclosure sale, is entitled to a quarter interest in one-third of the twenty acres. Thomas v. Scougale (Wash.) 1918C- 452. 12. A lawyer whose client contracted to pay him twenty-five per cent of the proceeds of any suit, settlement, or compromise of the client's claim to certain property or dam- ages, and who recovered money and property for such client through joining in a suit not originally contemplated, may recover his share of the proceeds. Thomas v. Scougale (Wash.) 1918C-452. 13. Reasonableness of amount. A fee of, say, $33,500 may be well earned in the de- fense of a suit for interdiction, brought by the children and heirs against their mother, contested during a period of nearly three years, involving the civil life and the liberty of the defendant and her control of an estate appraised at nearly $350,000, and terminat- ing in its abatement by reason of the death of the defendant. Pons's Succession (La.) 1918D-939. (Annotated) 4. Lien of Attorneys. 14. Necessity of notice. The right to an attorney's lien depends upon notice of a lien upon the judgment being served upon the judgment debtor and filed, under L. 0. 'L. 1088. Townsend v. Chamberlain (Ore.) 1918C-330. 15. Settlement in violation of lien. Un- der L. 0. L. 1088, touching attorney's liens, where the judgment debtor in good faith pays or satisfies the judgment before notice of the lien of the judgment creditor's attor- ney, the latter cannot enforce the judgment as against him. Townsend v. Chamberlain (Ore.) 1918C-330. 16. Where defendant judgment creditor's attorney made a motion, supported by affida- vits, asserting his claim of attorney's lien and that the settlement of the judgment by his client, the judgment creditor, was in fraud of his righ'ts, the proceeding on the mo- tion not being part of the suit to set aside the judgment as fraudulent, plaintiffs, the judgment debtors, not being served with no- tice and not appearing, while the parties in interest were different from those in the ac- tion in which the judgment was rendered, the order of the court canceling the satisfaction, the affidavits, stating no fact indicating that it was obtained fraudulently, or that the set- tlement was invalid as to the judgment debt- ors, and authorizing the collection of the re- mainder of the judgment by the attorney, is a nullity. Townsend v. Chamberlain (Ore.) 1918C-330. 17. Action under federal employers' liabil- ity act. As the federal employers' liability act authorizes actions in the state courts and makes the state practice applicable, Gen. St. Minn. 1913, 4955, giving attorneys a lien on the cause of actions of their clients, AUCTION AUTOMOBILES. is properly applied to an action brought in the courts of that state under the federal act, where defendant settled the claim with the client. Dickinson v. Stiles (U. S.) 1918E- 501. (Annotated) 5. Disbarment. 18. Power of courts. Courts, independent of statute, have authority to punish attor- neys for professional misconduct. Chreste v. Com. (Ky.) 1918E-122. 19. Grounds Soliciting business. An at- torney who, knowing of testimony material to a litigant, discloses same to counsel for such litigant only upon condition that he be employed as associate counsel, is guilty of misconduct for which he should be punished. Chreste v. Com. (Ky.) 1918E-122. (Annotated) 20. An attorney who employs a solicitor at a weekly salary with an unlimited expense account to procure such attorney's employ- ment in personal injury litigation is guilty of misconduct punishable by suspension or disbarment. Chreste v. Com. (Ky.) 1918E- 122. (Annotated) 21. New Trial. Where an attorney sub- mitted his response in disbarment proceed- ings under unusual circumstances, at a time when he was in such a mental state a not to fully appreciate its effect and under a misun- derstanding as to the punishment to be in- flicted, it is held that he was entitled to a new trial. Chreste v. Com. (Ky.) 191SE-122. AUCTION. Agreement to purchase jointly at auction, see CONTRACTS, 16, 17. AUTOMOBILES. 1. Regulation of Motor Vehicles, 41. 2. Mutual Rights and Duties on Highway: a. Care Required of Pedestrians, 41. b. Responsibility of Owner for Driver's Acts, 41. c. Liability to Guests, 42. d. Actions, 42. 3. Injuries to Motor Vehicles or Occupants, 42. 4. Crimes Incident to Operation, 43. Automobile insurance, see INSURANCE, 39-44. Automobile sales agency contracts, see AGEN- CY, 1-4, 10, 11. Care of automobiles on ferry boats, see FER- RIES, 4-6 Excessiveness of damages in action for in- juries sustained by collision between railroad train and automobile, see DAM- AGES, 7. Liability of city for personal injury result- ing from permitting use of streets for racing and testing automobiles, see STREETS AND HIGHWAYS, 10. Measure of damages for conversion, see COX- VERSION, 5. Proving value of automobile, see EVIDENCE, 7. Rescission of contract for purchase of auto- mobile, see RESCISSION, CANCELLATION AND REFORMATION, 7. 1. Regulation of Motor Vehicles. 1. Speed regulation. Section 12603, Gen- eral Code, prohibiting the operation of a motor vehicle "at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person," is a valid statute. State v. Schaeffer (Ohio) 1918E-1137. 2. Requiring stop on signal. Acts 1911, pp. 326, 327, 8, 9, requiring operators of automobiles to stop when signaled by a driv- er of horses, etc., is constitutional. Hays v. Hogan (Mo.) 1918E-1127. 2. Mutual Rights and Duties on Highways. a. Care Required of Pedestrians. 3. One passing in front of a standing street car has a right to assume that no au- tomobile will come from the rear of the car on the left-hand side of it, in violation of ordinance. Harris v. Johnson (Cal.) 1918E- 560. 4. The evidence is held to be sufficient to exonerate from contributory negligence one who having passed in front of a standing street car was struck by an automobile com- ing from the rear, and on the left-hand side of the car. Harris v. Johnson (Cal.) 1918E- 560. b. Responsibility of Owner for Driver's Acts. 5. Slight deviations from, route as exonerat- ing owner. Slight deviations from route or slight incidental things done by a chauffeur for his own benefit do not exonerate the mas- ter for negligence of the chauffeur. Guthrie v. Holmes (Mo.) 1918D-1123. (Annotated) 6. Presumption that driver was in scope of employment. In an action for injuries from collision with an automobile, proof that the automobile belonged to defendant, and was being operated by defendant's regularly em- ployed chauffeur, raises a presumption that the chauffeur was acting within the scope of his employment. Guthrie v. Holmes (Mo.) 1918D-1123. (Annotated) 7. In an action against the owner of an au- tomobile for death caused by the automobile while it was being driven by his chauffeur, evidence of ownership of the car and of the fact of employment of the chauffeur by such owner is prima facie evidence of the owner's responsibility for the accident. Rose v. Balfe (X. Y.") 1918D-218. (Annotated) 8. Rebutting presumption. In an action against the owner of an automobile for death caused by the automobile while it was being driven by his chauffeur, the prima facie ev- idence of the owner's responsibility for the ANX. CAS. DIGEST (1918C-1918E). accident established by evidence of the own- ership of the car and the employment of the chauffeur is overcome by substantial evidence rebutting such responsibility. Rose v. Balfe (N. Y.) 1918D-238. (Annotated) 9. Evidence that the owner of an automo- bile on leaving the city told his chauffeur at 1 o'clock to deliver several friends and drive home, a trip which would take an hour, and the chauffeur ran into and injured plaintiff at 7.30 P.M., overcomes the presumption that the chauffeur was acting within the scope of his employment at the time of the accident. Guthrie v. Holmes (Mo.) 191 8D- 1123. (Annotated) 10. Where the owner of an automobile di- rects his chauffeur to put the machine in dead storage under instructions not to use it without permission, the chauffeur has no im- plied authority to violate orders and without the owner's knowledge or consent take the car out for the purpose of testing it; and, such use being unauthorized, the owner is not liable for an accident resulting therefrom. Rose v. Balfe (N. Y.) 1918D-238. (Annotated) 11. In an action by one injured by an auto- mobile in possession of defendant's chauffeur, evidence held insufficient to show that the chauffeur was acting within the scope of his employment when he ran into plaintiff, and submission of such question to the jury was error. Guthrie v. Holmes (Mo.) 1918D-1123. (Annotated) 12. Liability for negligence of minor son. There is no presumption that a minor child is the agent of the -father in driving the lat- ter's car, or that when driving such car he is acting within the scope of his authority. Hays v. Hogan (Mo.) 1918E-1127. (Annotated) 13. A father is not liable for the negli- gence of a minor son in driving an automo- bile purchased for the use of the family, sole- ly in furtherance of the child's own business or pleasure, and permission of the father is immaterial. Hays v. Hogan (Mo.) 1918E- 1127. (Annotated) c. Liability to Guests. 14. A person inviting another to ride in his automobile gratuitously is not bound to con- vey her safely as a common carrier. Avery v. Thompson '(Me.) 1918E-1122. (Annotated) 15. A voluntary undertaker, such as a per- son inviting another to take a ride in his au- tomobile gratuitously, is required to exercise that degree of care and caution which would seem reasonable and proper from the charac- ter of the thing undertaken, and must be mindful of the life and limb of his guest, and not unreasonably expose her to peril in addi- tion to that involved in the act of transpor- tation itself, because of the use of an instru- mentality of tremendous power, high speed, and quick action. Avery v. Thompson (Me.) 1918E-1122. fAnnotatod) 16. Defendant's intestate invited plaintiff and others to take a ride in his automobile As the jury might have found, lie was famil- iar with a railroad crossing and knew he was approa-ching such crossing, and the whistle had been blowing and the automatic bell was ringing. When within a few rods of the crossing, plaintiff called attention to the train as it came in sight around a bend, and defendant slowed down a little, looked up and saw the train, and when within a few feet of the crossing increased his speed and attempted to cross in front of the train with which he collided. It is held that the jury's finding that he unreasonably exposed plain- tiff to danger and created a new peril, which she could not have anticipated and did not assume, was not palpably wrong. Avery v. Thompson (Me.) 1918E-1122. (Annotated) 17. Contributory negligence of guest in au- tomobile. It is held that the plaintiff, who had neither direction nor control of the op- eration of the car, and neither consented to nor acquiesced in the particular management or mismanagement that caused the accident, but who was relying on the competency of the intestate as a competent driver, and* was not inattentive, being apparently the first one to perceive the train and give warning, was not negligent. Avery v. Thompson (Me.) 1918E-1122. d. Actions. 18. Proof of ownership. In an action for personal injuries caused by the negligent op- eration of a licensed taxicab the statement of the ownership thereof in the registry of li- censes is not conclusive but may be rebutted by the person named as owner. Kemp v. Elisha (Eng.) 1918E-730. (Annotated) 19. Question for jury. Whether a person inviting- another to take a ride in his auto- mobile has exercised the required degree of care is a question of fact for the jury. Avery v. Thompson (Me.) 1918E-1122. (Annotated) 3. Injuries to Motor Vehicles or Occupants. 20. Failure to comply with license law. .The fact that decedent was driving an un- licensed automobile at the time of the acci- dent, in violation of the statute, does not af- fect the right of recovery against defendant railroad, since there was no casual relation between such violation of the statute and the wrong complained of. Southern R. Co. v. Vaughan (Va.) 1918D-842. (Annotated) 21. The failure of an owner and driver of an automobile to renew his license from the state does not preclude a recovery of dam- ages for negligence of the defendant which caused the death of an occupant. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C- 954. 22. Contributory negligence of guest in automobile. Where during a trip taken at night the lights of an automobile fail, and the owner and driver avails himself of the earliest opportunity to improvise or repair an oil lamp attached to the dash, after which, the journey is continued, the driver being an experienced driver, and being accompanied and assisted by one who is familiar with the roads, and where the roads are muddy and AWARD BAILMENT. 43 the automobile is driven slowly, it is held that a guest continuing the journey as a pas- senger in the rear seat of the car is not, as a matter of law, guilty of contributory negli- gence. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C-954. 23. Xoncompliance with a statutory re- quirement that automobiles should be sup- plied with two lights at the front of the car does not, as a matter of law, amount to con- tributory negligence on the part of a guest riding in the car. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C-954. 24. Imputed negligence. The negligence of a driver of an automobile is not imputable to a guest who is not shown to have co-op- erated in running the car. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C-954. (Annotated) 4. Crimes Incidental to Operation. 25. Unauthorized use of automobile as larceny. Under Penal Law, 1293a (Mc- Kinney's Consol. Laws, Book 39, p. 469), pro- viding that unauthorized use of an automo- bile shall constitute the crime of larceny, a chauffeur who uses his employer's automobile without his consent and contrary to his in- structions is guilty of larceny, although the car is being driven for the purpose of testing it. Rose v. Balfe (N. Y.) 1918D-238. 26. Homicide by negligent operation. In a prosecution under section 12603, General Code, for manslaughter by the negligent op- eration of an automobile, the court should charge the jury that the standard of conduct required of the defendant in the operation of his car is that of an ordinarily careful and prudent person, and that if he did not op- erate the car "at a speed greater than is rea- sonable or proper, having regard for width, traffic, use, and the general and usual rules of such road or highway, or so as to endan- ger the property, life, or limb of any person," as would appear to such ordinarily careful and prudent person in the then situation, he was not guilty of manslaughter. State v. Schaeffer (Ohio) 1918E-1137. (Annotated) AWARD. See ARBITRATION AND AWARD. BAIL. 1. Deposit in lieu of bail Right of de- positor to reclaim. The money deposited in lieu of 'bail by a third person to secure the release of one arrested and required to appear to answer a criminal charge is not conclusive- ly regarded as the defendant's money, and when the purpose for which the deposit has been made is accomplished and the obligation discharged, or there has been a surrender of the defendant, the money is to be returned to the owner. Campbell v. Board of County Com'rs (Kan.) 1918D-533. (Annotated) 2. Shortly after the defendant had been released from custody by the giving of a de- posit, he was arrested for another offense, and the officer who made the arrest, at the request of the surety Avho made the deposit, went with the defendant to the courthouse and in the presence of a deputy sheriff and the clerk of the district court made a formal offer of surrender which was accepted by the deputy sheriff who then took the defendant into his custody, and thereupon the clerk of the district court is.sued a check to the surety for the amount of the deposit, and the surety in turn signed and delivered a receipt to the clerk for the money so returned. Shortly afterward payment on the check was stopped. Held, in an action brought by the surety to recover the money he had deposited instead of bail, that the deputy sheriff had authority to accept the surrender of the defendant and that the surrender was effective although neither the sheriff nor his deputy acknowl- edged the surrender in writing. Campbell v. Board of County Com'rs (Kan.) 1918D-533. (Annotated) 3. A subsequent declaration of forfeiture because of the nonappearance of the defend- ant, made by the district court, to which pro- ceeding the owner of the deposit was not a party and of which he had no notice, did not affect such owner or estop him from main- taining an action to recover the deposit. Campbell v. Board of County Com'rs (Kan.) 1918D-533. (Annotated) 4 Surrender of accused by bail. A surren- der of the defendant may be made to a gen- eral deputy of the sheriff, and the mere fact that a defendant has been placed under ar- rest by another officer because of the com- mission of another offense, shortly before an attempt to surrender was made, did not of it- self render the attempted surrender invalid. Campbell v. Board of County Com'rs. (Kan.) 1918D-533. BAILMENT. See FACTORS; PLEDGE. 1. Right of bailee to dispute bailor's title. A bailee must return the property or its proceeds to the bailor before he can assert a claim thereto adverse to the bailor. Black- orby v. Friend (Minn.) 1918E-1199. (Annotated) 2. Unauthorized use by bailee as conver- sion. As a general rule, if a bailee uses the subject of a bailment in a different way or to a greater extent than authorized, such unauthorized use is a conversion for which the bailor may maintain trover for the value of the chattel. Baxter v. Woodward (Mich.) 1918C-946. (Annotated) 3. Liability of lessor of safe deposit box. A bailee, without any special contract to such effect, is bound to use ordinary care in keep- ing the deposit, although the bailor, who rents a safety deposit box, keeps the key. Schaefer v. Washington Safety Deposit Co. (111.) 1918C-906. (Annotated) 4. A safety deposit company, as bailee, must exercise such care and diligence in the preservation of the property as every prudent ANX. CAS. DIGEST (2L918C-1918E). man takes of his own goods of like character; the words "ordinary diligence" meaning that degree of care, attention, or exertion which under the actual circumstances a man of ordinary prudence and discretion would use, if the property were his own. Sc-haefer v. Washington Safety Deposit Co. (111.) 1918C- 906. (Annotated) 5. The bailor's allegations that she leased a safety deposit box, paid the rent, and de- posited money in the box, and when she later opened the box the money had been abstract- ed without her consent or knowledge, and that defendant did not use ordinary care and diligence to prevent the opening of the box by others, show a good cause of action, de- spite a condition of the lease that the opening of the box should not be inferable from the loss of its contents. Schaefer v. Washington Safety Deposit Co. (111.) 1918C-906. (Annotated) 6. WTiere a safety deposit company leases a box to plaintiff, who deposited therein money, and it is lost without her opening the box, the presumption arises that the loss was due to the company's negligence, and it has the burden of showing that it exercised due csH-e. Schaefer v. Washington Safety De- posit Co. (111.) 1918C-906. (Annotated) BANANA FEELS. Liability of city for injury caused by banana peel on sidewalk, see STBEETS AND HIGH- WAYS, 12. BANKRUPTCY. Bankruptcy within four months of execu- tion of note secured by deed of trust as affecting holder without notice, see MORT- GAGES, 9. 1. Assets spendthrift trust. The equita- ble life interest of the beneficiary in a trust created by a bequest of a fund to a trustee to pay the entire net income thereof to the beneficiary for life "free from the interference or control of her creditors" does not pass to her trustee in bankruptcy, under the Bank- rupt Act of July 1, 1898 (30 Stat. at L. 566, chap. 541, 1 Fed. St. Ann. [2d ed.] 1171), 70a (5), vesting in the trustee all property that the bankrupt "could by any means have transferred," where the local law treats such restrictions against interference or control by creditors as limiting the character of the equitable property, and inherent in it. Eaton v. Boston Safe Deposit, etc. Co. (U. S.) 1918D-90. (Annotated) 2. Effect of chattel mortgage by bankrupt. Where an assignment of corporate stock as collateral security was executed prior to the amendment of June 25, 1910. to the Bank- ruptcy Act (1 Fed. St. Ann. [2d ed.] 1115), whether the instrument be regarded as a chattel mortgage or other lien, even though it be void as to creditors for want of recorda- tion, the trustee in bankruptcy is bound by it as the bankrupt was. Martin v. Bankers Trust Co. (Ariz.) 1918E-1240. 3. The jurisdiction of a state court to fore- close a mortgage is not divested by subse- quent proceedings in bankruptcy in which the bankruptcy court directs the trustee in bank- ruptcy to make application to intervene in the foreclosure proceeding. Martin v. Bank- ers' Trust Co. (Ariz.) 1918E-1240. 4. Notice of failing circumstances of mort- gagor. Where a new note secured by a deed of trust was taken by a bank in part satis- faction of an old debt, the bank does not obtain priority by the deed of trust; it hav- ing knowledge that the debtor, who was ad- judged a bankrupt in less than four months, was then in failing circumstances. Peninsula Bank v. Wolcott (U. S.) 1918C-477. 5. The bankrupts, who were indebted to another firm, executed notes secured by a deed of trust. These notes were indorsed by a single member of the creditor firm, and were negotiated with two different banks, one of which banks already held a note of the bankrupts, which the creditor firm had in- dorsed to it. It is held that the court of bankruptcy had jurisdiction of a proceeding to set aside the deed of trust, though all members of the creditor firm were not par- ties; only that member who indorsed the second note being a party. Peninsula Bank v. Wolcott (U. S.) 1918C-477. 6. Priority to wage claims funds previous- ly assigned. The provisions of the Bankrupt- cy Act (Act July 1, 1898, c. 541, 64, subd. 4, 30 Stat. 563 [1 Fed. St. Ann. 2d ed. 1090]) giving priority to wages due workmen which have been earned within three months before the date of commencement of proceedings re- late to distribution of assets coming into the hands of the trustee, and do not apply to moneys transferred or assigned before the bankruptcy occurred. Riverside Contracting Co. v. New York (N. Y.) 1918C-1075. BANKS AND BANKING. 1. -Validity of federal reserve bank act. Congress did not exceed its power under U. S. Const, art. 1, 8, clause 18, to make "all laws which shall be necessary and proper for carrying into execution" the powers ex- pressly given by the Constitution, when giv- ing authority to the federal reserve board by the Act of December 23, 1913 (38 Stat at L. 262, chap. 6, 6 Fed. St. Ann. [2d ed.] 817), 11 (k), to grant by special permit to na- tional banks applying therefor, when not in contravention of state or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the board may prescribe Bay City First Nat. Bank v. Fellows (U. S.) 1918D-1169. (Annotated) 2. Legislative power is not unconstitution- ally conferred on the federal reserve board by the Act of December 23, 1913 (38 Stat. at L. 262, chap. 6, 6 Fed. St. Ann. [2d ed.] 817), 11 (k), giving authority to that board to grant by special permit to national banks BAR BENEFICIAL ASSOCIATIONS. applying therefor, when not in contravention of state or local law, the right to act as trus- tee, executor, administrator, or registrar of stocks and bonds, under such rules and regu- lations as the board may prescribe. Bay City First Nat. Bank v. Fellows (U. S.) -1918D-1169. (Annotated) 3. Quo warranto against national bank in state court. The institution by a state at- torney general in a state court of the pro- ceeding in the nature of quo warranto to test the authority of a national bank, imder the Act of December 23, 1913 (38 Stat. at L. 262, chap. 6, 6 Fed. St. Ann. [2d ed.] 817), 11 (k), to act as trustee, executor, administra- tor, or registrar of stocks and bonds, is im- pliedly if not expressly authorized by the provisions of that section giving such power only ''when not in contravention of state or local law," and of the Act of June 3. 1864 (13 Stat. at L. 116, chap. 106), 57, now in Rev. St. 5198 (6 Fed. St. Ann. [2d ed.] 747), making controversies concerning nation- al banks cognizable in state courts. Bay City First Nat. Bank v. Fellows (U. S.) 1918D-1169. BAR. Of limitations, see LIMITATION OF ACTIONS. Plea in bar, see PLEADING, 9. BARTENDER. What constitutes occupation of bartender within provision of insurance contract, see LIFE INSURANCE, 7. BASEBALL. Construction of offer to baseball player, see THEATERS AND AMUSEMENTS, 1. Recovery of damages from telegraph com- pany for failure to deliver message con- taining offer to baseball payer, see TELE- GBAPHS AND TELEPHONES, 7. BASTARDY. Settlement of bastardy proceeding as bar to action by father to recover damages for seduction, see SEDUCTION, 5. BATTERY. See ASSAULT AND BATTERY. BENEFICIAL ASSOCIATIONS. 1. Regulation and Control, 45. 2 Validity and Construction of Contract Generally, 45. 3. Constitution and By-laws Amendment, 45. 4. Suspension and Reinstatement of Members, 46. 5. Beneficiaries, 47. 6. Action to Recover Benefits, 47. 7. Liability for Tort of Agent, 47. See INSURANCE; LIFE INSUBANCE. Admissibility of statement of insured in last illness, see ADMISSIONS AND DECLARA- TIONS, 16. Admissions and declarations of insured, see ADMISSIONS AND DECLARATIONS, 3-6, 16. Conflict between health policy and by-laws of association, see INSURANCE, 50. Joint liability of fraternal order and agent for circulating libel, see LIBEL AND SLAN- DER, 33. Physician's death certificate as evidence, see EVIDENCE, 22. Presumption of death of insured, see DEATH, 1. Relief society of employees, see MASTER AND SERVANT, 27-34. 1. Regulation and Control. 1. Application of state insurance la\^. Re- visal 1905 4806, making all insurance con- tracts within the state subject to state law, does not apply to a fraternal benefit policy, in view of section 4791, making such a policy subject to charter and by-laws of the order. Hollingsworth v. Supreme Council etc. (N. C.)- 1918E-401. 2. Foreign association. A benefit society incorporated in another state which comes into this state in order to do business under the permission granted by the laws of Ne- 4 braska is subject to the same limitations and restrictions as such an association organized in Nebraska. Dworak v. Supreme Lodge etc. (Neb.) 1918D-1153. 2. Validity and Construction of Contract Generally. 3. The beneficiary of a fraternal benefit society's certificate is entitled to a liberal and favorable interpretation of the contract; for, although fraternal benefit societies are usu- ally dealt with more liberally in some re- spects than ordinary insurance companies, they are subject to the same rules of law and construction as other companies in regard to their contracts for life insurance. Greenwood v. Royal Neighbors of America (Va.) 1918D- 1002. 3. Constitution and By-laws Amendment. 4. Effect as to existing members. An in- surance contract by a mutual benefit society, providing that the insurance is granted to the member with the distinct provision that the rights and benefits shall be subject to and governed by the constitution and by- laws of the society existing when the policy was issued, or that may be thereafter adopted or amended by the society before injury, per- mits any reasonable change in the rights and benefits under the contract by amendment or adoption of by-laws of the society increasing ANN. CAS. DIGEST (1918C-1918E). or decreasing the dues and assessments, de- fining an ambiguous term in the covenant, or reasonably reducing the benefits, and such change in the by-laws is valid, if reasonable, and is to be read into the contract as if written therein. Butler v. Eminent House- hold of Columbian Woodmen (Miss.) 191SD- 1137. (Annotated) 5. Where, at issuance of a beneficiary cove- nant by a mutual benefit insurance society, the covenant or contract of insurance and the constitution and by-laws of the society pro- vided that the beneficiary should receive $200 in the event of a broken leg, and thereafter such provision of the constitution of the society was amended to provide that the be- neficiary should be paid $100 in the event of complete fracture of the thigh, involving either the upper or lower extremity, or the shaft of the bone, or in the event of complete fracture of either or both bones of the lower leg (tibia, or shin bone, or fibula), at either extremity or along the center, or in event of the complete fracture of the kneecap, such amendment to the constitution, defining what was meant by a broken leg, was reasonable and proper under the provision of the in- surance contract that the member's rights and benefits were subject to and governed by the constitution and by-laws of the society as existing or amended. Butler v. Eminent Household of Columbian Woodmen (Miss.) .1918D-1137. (Annotated) 6. Right to raise rates. There is no stat- utory prohibition against the raising of the rates of a fraternal benefit association. Hol- lingsworth v. Supreme Council, etc. (N. C.) 1918E-401. 7. A member of a fraternal benefit society, having had insurance at less than the normal rates for many years, cannot urge his having borne the burden of the company against a raise in rates to make possible the payment of certificates. Hollingsworth v. Supreme Council, etc. (N. C.) 1918E-401 (Annotated) 8. A member of a fraternal benefit society who had free access to all books and by-laws cannot recover assessments paid, when society raised rates, on the theory that in inducing him to become a member, agent fraudulently represented that rates would not be raised, since the agent might honestly have believed so, or might not have intended to deceive, and plaintiff could have informed himself from by-laws, etc., whether raise could be made. Hollingsworth v. Supreme Council, etc. (N. C.) 1918E-401. 9. A member of a fraternal benefit society who had free access to all books and by-laws cannot recover assessments paid, when soci- ety raised rates, after many years' menilicr- ship, on theory that it was falsely represented to him that the rates would not be raised, since his laches bar equitable relief. Hol- lingsworth v. Supreme Council (N. C.) 1918E- 401. 10. What law governs. There being no statute prohibiting a fraternal benefit society from raising its rates, and Rerisal 1905, 4791. making the charter govern the policy, the question whether a Massachusetts corn- pan}' may raise rates in North Carolina in- volves Const. U. S. art. 4, 1, as to full faith and credit and the decisions of the United States Supreme Court are binding on the supreme court of North Carolina. Hol- ingsworth v. Supreme Council, etc. (N. C.) 1918E-401. 11. Since no North Carolina law prohibit* fraternal benefit society from raising its rates, but Revisal 1905, 4791, makes such contracts subject to charter and by-laws of the company, a Massachusetts company whose charter and by-laws permit may raise the rate of a North Carolina member. Hol- lingsworth v. Supreme Council, etc. (N. C.) 1918E-401. 4. Suspension and Reinstatement of Members. 12. Right of member to resort to courts. A member of a beneficial association connot, in the absence of fraud, resort to the courts for relief against suspension before exhaust- *ing his remedies within the association. Most Worshipful United Grand Lodge, etc. v. Lee (Md.) 1918E-1174. . (Annotated) 13. Where a beneficial association suspends a member in accordance with the proceedings established by the rules, the member has no recourse to the court; but, if proceedings have not been conducted as prescribed by the rules, and the member was given no opportunity to defend himself, the courts will interfere. Most Worshipful United Grand Lodge, etc. v. Lee (Md.) 1918E-1174. (Annotated) 14. Where the constitution or a lodge pro- vides for the impeachment of the master of a subordinate lodge by charges preferred before the grand master, who, if he deems them well taken, may suspend the master and summon him before the grand lodge to answer the charges, but a master is suspended from mem- bership on report by a committee appointed by the grand master for that purpose and confirmed by the grand lodge without any opportunity having been given to defend him- self before the grand lodge, and no provision is made for appeal from such proceedings, the suspended master is entitled to relief in equity. Most Worshipful United Grand Lodge, etc. v. Lee (Md.) 1918-1174. (Annotated) 15. Waiver of suspension of member. The provisions of the laws of the association lim- iting its liability, where a suspended member has been restored or reinstated to good stand- ing, to injuries thereafter suffered, have no application where no suspension was declared, or where a suspension, occurring automatic- ally by reason of the default, has been waived by the association. Suits v. Order of United Commercial Travelers (Minn.) 1918E-508. 16. The practice and custom of defendant, an accident benefit insurance association, in permitting and receiving from its members the payment of dues and assessments after the due date thereof, held, following Mueller v. Grand Grove U. A. 0. D. 69 Minn. 236, not only a waiver of the failure to pay within the time fixed by the laws of the order, but also a waiver of the by-laws declaring a for- BENEFICIARY BILLS AXD XUTES. feiture for the default and an estoppel to in- voke the same in an action on the contract. Suits v. Order of United Commercial Travel- ers (Minn.) 1918E-508. 17. Reinstatement Good health of insured. Where a member of a fraternal benefit so- ciety allows her certificate to lapse for non- payment of dues, and thereafter, applying for reinstatement, warrants, under the terms of the certificate, that' she is in good health, being, in fact, without knowledge that she was suffering from valvular disease of the heart, there is no breach of her warranty of "good health," a phrase which, used in its common and ordinary sense by a person speaking of his own condition, implies a state of health unimpaired by any serious malady of which the person himself is conscious: the warranty covering only knowingly false statements relating to health. Greenwood v. Royal Neighbors of America (Va.) 1918D- 1002. (Annotated) 18. In an action against a fraternal bene- ficiary society on a benefit certificate, whether the member, when applying for leinstatement, was not in good health, is held to be for the jury under the evidence. Greenwood v. Royal Neighbors of America (Va.) 1918D-1002. 19. Waiver of provision. The M. B. A.. & fraternal benefit society, with lodge and in- surance features, in April, 1910, received Mrs. Bailey as a member, and issued to her a bene- fit certificate of insurance, and assessed and collected from her, monthly, a per capita tax, reserve fund dues, and benefit assessments, up to assessment No. 11, which was due and payable during the month of November. This payment was not made until about 15 days after due, when it was made and received and retained by the company; an unconditional receipt being issued therefor. Thereafter, and for the months of December, January, Feb- ruary, March, and April, the company as- sessed her as other members in good standing and received and retained for each of said months, timely payments of the assessments and local dues, issuing unconditional receipts therefor. Mrs. Bailey died in April, without any delinquency as to payments, except as to the belated payment the previous Decem- ber. Held, that the conduct of the company in retaining the belated payment, without condition, and the continued assessments and retention of payments, without condition, for several months, waived the provision that the reinstatement of a member, in default as to payments, is upon condition that such mem- ber is in good health. Modern Brotherhood, etc. v. Bailey (Okla.) 1918E-744. 5. Beneficiaries. 20. Law governing. The statute of Ne- braska which specifically prescribes the per- sons 'to whom payment of benefits by a fra- ternal beneficiary association can be made (Rev. St. 1913, 3298), governs in all Ne- braska contracts. The law of the domicil of a foreign association has no application to such contract. Dworak v. Supreme Lodge, etc. (Neb.) 1918D-1153. (Annotated) 6. Action to Recover Benefits. 81. Statements in proof of death. State- ment in proof of death of age of insured is not conclusive on, but may be controverted by, the beneficiary in an action on a contract of mutual benefit insurance, in the absence of facts creating an estoppel. Armstrong v. Modern Woodmen of America (Wash.) 1918E-263. ' 7. LiabUity for Tort of Agent. 22. Where, though a fraternal order has social, benevolent, and charitable features, it is essentially, so far as its head camp is con- cerned, an insurance corporation conducted on the assessment plan, and it has a benefit fund, out of which death claims are to be paid, and a general fund, which may be used for other purposes, and out of which hun- dreds of thousands of dollars are paid in combating an effort on the part of a portion of the members to secure the repeal of leg- islation raising the premium rates it is not immune from liability for a libel circu- lated by its officers and agents in combating such effort, on the ground that its fund are trust funds. Morse v. Modern Woodmen of America (Wis.) 1918D-481J '" (Annotated) BENEFICIARY. Interest of beneficiary in life insurance poli- cy, see LIFE INSURANCE, 9. I BIDDING. Chilling or suppressing, see CONTRACTS, 16, BH.L OF EXCEPTIONS. See APPEAL AND ERROR, 24-29. BILL OF LADING. See CARRIERS OF GOODS, 4. BILL OF PARTICULARS. In criminal cases, see INDICTMENTS AND IN- FORMATIONS, 12-17. In prosecution for embezzlement, see EMBEZ- ZLEMENT, 2, 3. BILLS AND NOTES. Action on lost note, see LOST INSTRUMENTS, 1-5. 1. Extension of time as discharge of ac- commodation maker. The general provisions of Negotiable Instruments Law (Laws 1899, eh. 94) are: "The person primarily liable on an instrument is the person who by the terms 48 CAS. DIGEST (1918O-1918E). of the instrument is absolutely required to pay the same. All other parties are second- arily liable." Section 119 provides that a negotiable instrument is discharged: "1. By payment in due course, by or on behalf of the principal debtor; 2. By payment in due course^ by the party accommodated, where the instrument is made or accepted for accommo- dation; 3. By the intentional cancellation thereof by the holder; 4. By any other act which will discharge a simple contract for the payment of money; 5. When the prin- cipal debtor becomes the holder of the in- strument at or after maturity in his own right." Section 120 provides that a person secondarily liable on the instrument is dis- charged (subsection 6): "By an agreement binding upon the holder to extend the time of payment, or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved." It is held that a person signing a note as maker, but shown by extrinsic evidence to have been an accom- modation maker was primarily liable, and is not discharged by an agreement, although made without his knowledge or consent, be- tween the holder and maker, for valuable consideration, to extend the time of payment. Graham v. Shephard (Tenn.) 1918E-804. (Annotated) 2. Shannon's Code, 3517, providing that a surety, as a party secondarily liable, may be discharged from liability by giving the holder of the note thirty days' written notice to sue, and section 3522, providing that a surety may be discharged from liability by the principal debtor procuring a stayor to stay the judg- ment, in so far as they conflict with the later legislative enactment in the Negotiable In- struments Law, were repealed by that act. Graham v. Shephard (Tenn.) 1918E-804, BINDING SLIP. See INSURANCE, 38. BOARDS. Review by state boards of equalization of as- sessments, see TAXATION, 13, 16-20. Rule of board of trade prohibiting members from dealing in grain between sessions of board at price other than closing bid as violation of anti -trust act, see MONOP- OLIES, 1, 2. Validity of statute creating state insurance board, see INSURANCE. 8-15. BONA FIDE PURCHASER. See VENDOR AND PURCHASER, 14-23. Assignee for the benefit of creditors as bona fide purchaser, see ASSIGNMENTS FOB BENEFIT OF CREDITORS, 1. BONDS. Of building contractor, see CONTRACT.-.. .".:;- 34. Of persons engaged in transporting ji;i>scn- gers in motor vehicles, see CARRIERS OF PASSENGERS, 20. On appeal, see APPEAL AND ERROR, 111-120. Conditional signing by sureties as defense in action on bond, see SURETYSHIP, 4-7. Giving of bond by secretary of building and loan association as affecting lien of as- sociation for amount embezzled on stock held by secretary, see BUILDING AND LOAN ASSOCIATIONS, 7. Liability of abstractor on bond, see ABSTRACT OF TITLE, 1. Liability on bond of public officer, see PUBLIC OFFICERS, 15, 16. Necessity of indemnity bond in action on lost note, see LOST INSTRUMENTS, 1. Summary judgment in injunction bond, see INJUNCTIONS, 22, 23. 1. Provision tor special fund for payment. That special contract bonds provide for a retirement fund and an interest fund from the surplus earnings of the grantor in the deed of trust, does not make the bonds a nullity where there is a further provision that on default the bonds are enforceable against the entire mortgage property through a fore- closure suit, the appointment of a receiver, and a sale of the property. Martin v. Bank- ers' Trust Co. (Ariz.) 1918E-1240. BOOK ACCOUNTS. See ACCOUNTS AND ACCOUNTING. BOYCOTT. Legality, see LABOR COMBINATIONS, 10-12. Distinguished from rule of labor union pro- hibiting members from working with nonunion material, see LABOR COMBINA- TIONS, 7. BRIDGES. Right of one railroad company to use bridge of another, see RAILROADS, 6-13. BOAT LIVERY. Liability for injury to patron, see THEATEBE AND AMUSEMENTS, 2, 3. BRIEFS. Brief of counsel on appeal, see APPEAL AND ERROR, 34. BROKERS. BROKERS. 1. Real Estate Brokers: a. Contract of Employment, 49. b. Right to Compensation, 49. c. Amount of Compensation, 49. d. Actions for Compensation, 49. 2. Loan Brokers, 49. Judgment against husband and wife in ac- tion for commission on contract of hus- band, see HUSBAND AXD WIFE, 22. Oral contract for payment of commission for exchange of personal property for real- ty as within statute of frauds, see FRAUDS, STATUTE OF, 3. 1. Real Estate Brokers, a. Contract of Employment. 1. Severable contract. An agreement to pay a broker commission for effecting an ex- change of properties, whereon the owner gives the broker a list of his properties, placing separate valuations on each, without an agreement, making the right to a commission for the exchange of stock dependent on the sale or exchange of realty, or anything to make the right dependent on the sale or ex- change of the stock separate from the realty, is severable. Godefroy v. Hupp (Wash.) 1918E-494. (Annotated) 2. Right to revoke authority. A contract which makes one the agent of the owner of land for the sale thereof is simply a listing contract, revocable at any time by the owner, and notice of revocation terminates the rights under the contract. Fields v. Vizard Invest. Co. (Ivy.) 1918D-336. (Annotated) b. Right to Compensation. 3. Performance variant from contract. The fact that an exchange as finally con- cluded did not embrace all of the realty in- cluded in defendant's list given to the broker, and did include certain machinery, a team, harness, and wagon, not included in the list, will not defeat the action for a commission, if the contract w r as in writing, where the exchange was concluded along lines contem- plated in the correspondence of the broker's agent with the other party, which was sub- mitted to defendant and led to his closing the deal. Godefroy v. Hupp (Wash.) 1918E-494. 4. Implied contract to pay commission. In a broker's action, on the theorv that defend- ants, by refusing to perform a contract of sale, became indebted to him for services in procuring the purchaser, evidence is held not to show any contractual relation between the broker and defendants. Dickinson v. Hanley (Mich.) 1918C-1063. (Annotated) 5. Where a broker is a mere volunteer, hop- ing to get a commission out of the purchaser, whom he procured, defendants' misrepresenta- tion as to the authority of a defendant to make the sale cannot be made the basis of an action in the broker's behalf. Dickinson v. Hanley (Mich.) 1918C-1063. (Annotated) Ann Ca.. Dig. 1918C-E. 4. c. Amount of Compensation. 6. In absence of express contract. Where an agreement to pay broker a commission for effecting an exchange of properties is silent as to rate of commission to be paid, it was implied that the rate should be such as is usually and customarily paid at that place for an exchange or sale of such stocks. Gode- froy v. Hupp (Wash.) 1918E-494. d. Actions for Compensation. 7. Evidence. In a broker's action for com- missions for effecting an exchange of personal property for realty, the written contract of exchange is not conclusive as to the value of the stock, so that, where it fixes no separate value on any of the properties, no commis- sion is recoverable, since the broker, being a stranger to the contract, is not bound by it, and may prove by parol the value of* the stock. Godefroy v. Hupp (Wash.) 1918E-494. 8. In an action for a broker's commission, it is held on the evidence, that the appellate court would net disturb a verdict for plain- tiff for insufficiency of the evidence to estab- lish the rate of commission allowed by the jury, (iodefroy v. Hupp. (Wash.) 1918E-494. 9. Questions for jury. On evidence in a broker's action for services rendered in an ex- change of personal property for realty, whether the plaintiff, through" his employee, was the procuring cause of the exchange as finally consummated is held to be a question for the jury. Godefroy v. Hupp (Wash.) 1918E-494. 10. Whether a contract with a broker for commissions for an exchange of property is divisible in respect to personalty and realty is a question of law depending on the terms of the contract, but what such terms are is a question of fact on the evidence. Godefroy v. Hupp (Wash.) 1918E-494. (Annotated*) 11. In an action upon an oral contract for service as a broker in effecting an exchange of properties, it is held, on the evidence, that whether the defendant agreed to pay a com- mission on any sale or exchange of its prop- erty, whether of stock alone, real property alone, or of the stock and real property to- gether, was for the jury. Godefroy v. Hupp (Wash.) 1918E-494. 12. In broker's action for his commission for effecting an exchange of stock for realty, conflicting evidence, tending to show that cer- tain mill stock was put in at $45,000 and cer- tain oil stock at $15,000, is sufficient to take the valuation of such stock to the jury. Godefroy v. Hupp. (Wash.) 1918E-494. 2. Loan Brokers. 13. Sufficiency of performance. In a brok- er's action for commissions for procuring a loan, evidence as to whether it was under- stood that plaintiff was acting as broker and not for himself, and that a commission men- tioned in the negotiations was a commission for procuring the loan and not part of the consideration for the loan, if made, and as to whether a loan was agreed upon, or whether it was to be contingent upon a purchase of 50 AWN. CAS. DIGEST (1918C-1918E). land by defendant, is held to make a question for the jury as to plaintiff's right to recover. Parker v. Power (Md.) 191SC-G04. (Annotated) BUILDING AND LOAN ASSOCIA- TIONS. 1. Lien on stock Effect of by-law. Code, 1626 provides that the transfer of shares of corporate stock is not valid except as between the parties until regularly entered upon the books of the company, and that, when any shares of stock shall be transferred as col- lateral security, the transferee may notify in writing the secretary of the corporation, and from the time 01 such notice, and until writ- ten notice that the stock has ceased to be held as collateral security, the stock shall be con- sidered in law as transferred on the books of the corporation without an actual transfer. It is held that where the by-laws of a build- ing and loan association gave the association a lien on shares of stock for any indebtedness to it from the shareholder, the giving of the statutory notice by a pledgee of stock did not extinguish the association's lien for an indebtedness then existing, or give the pledgee priority over the association for the amount the shareholder owed the association at the time of the pledge. Jewell v. Nuhn (Iowa) 1918D-356. (Annotated) 2. A building and loan association, which delivered to a stockholder a passbook purport- ing to contain a copy of the articles of incor- poration and the by-laws, but not including therein a provision in the by-laws giving the association a lien on the shares of stock for the shareholders' indebtedness to it, is not thereby estopped from asserting such lien on the shares of another stockholder which were pledged to the stockholder in question as collateral security, as he had power by going to the record to find out what the by-laws were, and was charged with notice of the by- laws on record in the office of the proper recorder of deeds, especially where the cer- tificate of stock assigned to him as collateral contained the provision of the by-laws re- specting such lien. Jewell v. Nuhn (Iowa) 1918D-556. (Annotated) 3. Where a pledgee of stock in a building and loan association is himself a stockholder, the by-laws are notice to him of a lien on the stock in favor of the association thereby created. Jewell v. Nuhn (Iowa) 1918D-356. (Annotated) 4 What constitutes debt for which lien given. Under a by-law of a building and loan association giving the association a lien on stock for sums due it from the shareholder on his subscription to the stock or for money loaned by it to him or for any other indebted- ness due from him, and providing that no stock shall be transferred unless all debts due the association are first paid, a claim against a shareholder for an amount em- bezzled by him while secretary of the asso- ciation is a "debt" as against a voluntary pledgee of the secretary's stock, especially where the embezzlement is conceded, and it appears that at the time the stock was pledged the amount of the embezzlement ex- ceeded the value of the stock pledged* Jewell v. Nuhn (Iowa) 1918D-356. (Annotated) 5. Even though such claim is not a debt un- til reduced to judgment, this does not affect the priority of the association's lien, but merely postpones its enforcement until the demand is reduced to judgment, as the by- laws create a lien for future as well as [ev- ent indebtedness. Jewell v. Nuhn (Io\va) 1918IX-356. (Annotated) 6. Where the by-laws of an incorporated building and loan association provide that the association shall have a lien on its stock for any sum due from the shareholder on account of the subscription to the stock or for money loaned by the association to the shareholder or for any other indebtedness due from the shareholder, and that no stock shall be trans- ferred unless all debts due the association are first paid, if, under the law, a pledgee of stock is justified in believing that the language or the by-laws mean a debt, in strictness, he has a right to treat the language as having such meaning, and may object to a different inter- pretation extending the lien to the liability of the shareholder for money embezzled by him as secretary of the association. Jewell v. Nuhn (Iowa) 1918D-356. (Annotated) 7. Where the by-laws of a building and loan association provide that the association shall have a lien on the shares of each shareholder for any sum due it from him either on ac- count of the subscription to the stock or for money loaned by it to him or for any other indebtedness due from the shareholder, and that no stock shall be transferred unless all debts due the association are first paid, the association has a lien on the stock of a share- holder for an amount embezzled by him while secretary of the association, and the fact that the secretary is bonded does not prevent such lien, as it is the fact of an indebtedness due from a member of the class subject to the lien, and not the capacity in which he becomes indebted, that controls, and, in the absence of any evidence that the bonds were relied on exclusively, there is no reason for assuming that it was not the intent of the association to create a lien on the shares because of the fact that a bond was taken. Jewell v. Nuhn (Iowa) 1918D-356. (Annotated) 8. Estoppel. That a stockholder in a build- ing and loan association with whom another stockholder pledged his stock as collateral security was sent statements showing tluit the books of the association had been audited, and that, from an examination of the books an i accounts of the secretary and treasurer, the person making the audit found nothing to indicate a lack of faithful performance of duty on the part of such officers, does not estop the association from asserting a lien on the pledged stock for an amount em- bezzled by the pledger while secretary of the association, since the persons making the audit and mailing the statements to the pledgee were his agents as well as the agents BUILDIXG CONTRACTS CARRIERS. of his fellow stockholders. (Iowa) 1918D-356. Jewell v. Xuhn (Annotated) BUILDING CONTRACTS. See CONTRACTS, 24-36. See MECHANICS' LIENS, 1-15. Assignment of proceeds of claims on build- ing contracts, see ASSIGNMENTS, 3-14. Subrogation of surety of contractor, see SUB- BOGATION, 3. BUILDINGS. Destruction during erection as affecting right of contractor to compensation, see CON- TBACTS, 28-30, 32. Party wall rights, see ADJOINING LANDOWN- ERS, 1-3. BURDEN OF PROOF. See EVIDENCE, 39. BURYING GROUNDS. See CEMETERIES. BUSINESS. Injunction against criminal prosecution on account of injury to business, see IN- JUNCTIONS. 12. Power to regulate as including power to li- cense, see LICENSES, 2. . Regulation of business, see CONSTITUTIONAL LAW, 6-9. BUTCHER. Licensing, see LICENCES, 4-6. BY-LAWS. See BUILDING AND LOAN ASSOCIATIONS, 1-11, 15, 16. Conflict between policy and by-laws of bene- ficial association, see INSURANCE, 50. CALL. Necessity of notice to call for unpaid stock subscriptions, see CORPORATIONS, 31. CANCELLATION. See RESCISSION, CANCELLATION AND REFORM- ATION. CANDIDATES. Criticism of candidates for office as libel or slander, see LIBEL AND SLANDER, 1, 7-9, 25, 26. Withdrawal of candidacy, see ELECTIONS, 11- 13. CAPIAS AD RESPONDENDUM. Raising question of error in refusal to quash writ of capias ad respondendum, see AP- PEAL AND ERROR. 63. CARRIERS. See CARRIERS OF GOODS; CARRIERS OF LIVE STOCK; CARRIERS OP PASSENGERS; FER- RIES-. RAILROADS; STREET RAILWAYS. Effect of partial invalidity of Reciprocal De- murrage Act, see STATUTES, 8. Nature of duty owed to person riding in au- tomobile as guest, see AUTOMOBILES, 14. Right of individual or corporation to use streets as common carriers, see STREETS AND HIGHWAYS, 2-6. 1. Regulation of rates. In considering the reasonableness of a rate fixed by the rail- road commissioners for the transportation of any particular class of freight, the question is whether the entire revenue produced from the particular traffic affords a substantial income for the service over the cost of ren- dering it. State v. Florida Blast Coast R. Co. (Fla.) 1918E-1206. (Annotated) 2. In ascertaining the cost to or expense in- curred by a railroad carrier in handling a particular class of traffic, interest on bonds and taxes should not be included in the es- timate, but they are matters to be considered in determining whether the rate to be en- forced provides a reasonable or fair compen- sation. State v. Florida East Coast R. Co. (Fla.) 1918E-1206. (Annotated) 3. Where the reasonableness of a rate fixed by the railroad commissioners for the trans- portation of a particular class of freight is attacked by the carrier, against whom it is sought to be enforced, upon the ground that the rate prescribed will require the carrier to perform a service without reasonable com- pensation therefor, or upon the ground that the order was made without any evidence to support it, the burden is upon the carrier to establish by evidence which is clear and satis- factory such ground of defense. State v. Florida East Coast R. Co. (Fla.) 1918E- 1206. 4. Evidence examined, and found not to show clearly and satisfoctorily that the or- der made by the railroad commissioners, af- fecting the carriage of commodities included in Class P traffic by the respondent railroad, would compel the respondent to carry such commodities at a loss, or without substantial compensation. State v. Florida East Coast R. Co. (Fla.) 191SE-1206. 5. Presumption in favor of order. The or- ders of the railroad commissioners prescrib- 52 AXX. CAS. DIGEST (1918O-1918E). ing a rate to be charged by railroad cor- porations for the transportation of freight, being within the scope of the railroad com- missioners' power, are prima facie reasonable and just, and properly made and arrived at in due form of procedure, and such as ought to have been made in the premises. State v. Florida East Coast R. Co. (Fla.) 1918E- 1206. 6. Testimony of commissioners to show regularity. Upon the question of whether the railroad commissioners made an order relating to the carriage of freight by railroad carriers without any evidence before them upon which to base such order, they may be called as witnesses, and required to tes- tify whether in fact any evidence was sub- mitted to and considered by them as the basis for such order. State v. Florida East Coast R. Co. (Fla.) 1918E-1206. 7. Reciprocal demurrage act Construction. Section 6162, Rev. St. 1913, construed, and held that the duty of a railway company to make prompt delivery of cars is not ended when the cars are placed upon a "hold track" to await orders from the consignor or con- signee, but the running of the time allowed by such section for delivery is only sus- pended while cars are so held. Sunderland Bros. Co. v. Missouri Pac. R. Co. (Neb.) 1918D-1120. CARRIERS OF GOODS. 1. Transportation and Delivery to Consignee, 62. 2. Bills of Lading, 52. 3. Loss of or Injury to Goods, 52. 4. Limitation of Liability, 52. 5. Charges, 53. 6. Connecting Carriers, 53. 7. Actions for Loss, Injury or Delay: a. In General, 53. b. Evidence, 53. c. Damages, 54. See CABBIEBS; CARRIERS OF LIVE STOCK. Duty to make prompt delivery of cars under Reciprocal Demurrage Act, see CARBT- EBS, 7. 1. Transportation and Delivery to Consignee. 1. The liabilities of a carrier depend, not only on its contract, but also on obligations imposed by law, and the law imposes the duty upon a carrier to transport and deliver to the consignee within a reasonable time goods which have been intrusted to it. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 2. Unexpected congestion of traffic. When an emergency arises and a carrier unexpect- edly has more business than it can accom- modate, and it receives goods without notice to the shipper on the probable delay, and fails to obtain his assent, express or implied, to the delay, it is bound to transport the goods within a reasonable time, notwith- standing the emergency. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. (Annotated) 3. Delay of consignee in removing goods. Where potatoes shipped by rail and steamer have been in the steamship company's ware- house at destination to the knowledge of the consignee more than six days, the railroad which handled the shipment is not liable for loss by freezing; its carrier's liability hav- ing terminated. Barber v. Detroit, etc. R. Co. (Mich.) 1918E-1109. (Annotated) 2. Bills of Lading. 4. Effect of filing with interstate commerce commission. While the legal conditions and limitations in a railroad company's bill of lading, the form of which was duly filed with the interstate commerce commission as part of its tariffs, are binding until changed by that body, illegal conditions and limitations are void though so filed. Boston, etc. R. Co. v. Piper (U. S.) 1918E-469. 3. Loss of or Injury to Goods. 5. Proximate cause of damage. Where "po- tatoes shipped by rail reached destination three days late, but it could not be said with any certainty that if they had reached destination on schedule none of them would have been frozen, the railroad was not liable to the shippers for damages from freezing. Barber v. Detroit, etc. R. Co. (Mich.) 1918E- 1109. 4. Limitation of Liability. 6. Notice of claim Construction of con- tract. A contract between a carrier and ship- per for the transportation of goods, contain- ing the following stipulation: Claims for loss or damage must be made in writing to this company within ten days after arrival of the goods at their place of ultimate destination in case of fruit, vegetables, and other perish- able articles, and within thirty days after arrival at ultimate destination in case of other freight, and unless claims are so made this company shall not be liable even if valid and enforceable relates only to claims for the loss of or injury to goods, and has no applicability to an action for special damages occasioned by negligent delay in the transportation of goods. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 7. Sufficiency of notice. In a consignee's action for damages to tomatoes shipped under a bill of lading, requiring notice of a claim for damage to be made in writing to the agent at place of delivery upon arrival, or within ten days after delivery, the consignee's timely presentation of a written statement of a report of their condition, signed by the carrier's inspector, bearing the name of the consignee, stating the damage and manner in which it occurred, and that the consignee would repack the tomatoes and claim dam- ages, is a sufficient notice. United Brokers Co. v. Southern Pac. Co. (Ore.) 1918D-814. (Annotated) 8. A stipulation as to notice of a claim CARRIERS OF GOODS. 53 for injury to goods while being transported by a common carrier should be given a rea- sonable construction, and a substantial com- pliance therewith is all that is required, in view of the object of the requirement of notice. United Brokers Co. v. Southern Pac. Co. (Ore.) 1918D-8U. (Annotated) 5. Charges. 9. Liability of consignee for freight charge. The consignor or shipper is primarily lia- ble to the carrier for the freight. But if the consignee, the presumed owner, accepts an interstate shipment and pays part of the freight, the law implies an agreement on his part to pay the balance to the carrier, where, as here, the carrier, at the time of the de- livery of the shipment, has no knowledge of the arrangement between the consignor and consignee as to the payment of the freight, and the consignor then is and ever since has been insolvent. Chicago, etc. R. Co. v. Green- berg (Minn.) 1918E-456. 10. In an action by a railroad company to recover a balance of the legal freight upon an interstate shipment from the consignee who had accepted the shipment, paid the amount of the freight erroneously understat- ed in the bill of lading, and settled with the consignor upon that basis, the defense of es- toppel is not available, for the consignee is conclusively presumed to have had knowledge of the published legal rate. Chicago, etc. R. Co. V. Greenberg (Minn.) 1918E-456. (Annotated) 6. Connecting Carriers. 11. Presumption against terminal carrier. Without evidence locating the place of the damage to goods in transit over several con- necting lines, and where it appears that the goods were delivered to the initial carrier in good condition, and were delivered by the terminal carrier in a damaged condition, a presumption arises that they were injured on the line of the terminal carrier, and the burden of proof is on it to show that the damage was not done on its line, and that it occurred without its fault or through the shipper's failure to perform his contract. United Brokers Co. v. Southern Pac. Co. (Ore.) 1918D-814. 7. Actions for Loss, Injury or Delay. a. In General. 12. Persons entitled to sue. In order to maintain an action against a carrier for the recovery of damages occasioned by negligence in the transportation or delivery of goods, either ex contractu or ex delicto, the plain- tiff does not have to be the absolute owner of the goods. If the plaintiff has a special interest therein and his legal rights have been invaded, that would entitle him to maintain the action. Florida East Coast R. Ce. v. Peters (Fla.) 1918D-121. 13. Where goods are intrusted to a carrier for transportation and delivery, the carrier thereby has notice of the interest of both the consignor and the consignee; and, if either suffers an injury through the negligent delay in the transportation or delivery of the goods, the person so suffering such injury may bring an action against the carrier to obtain redress for such injury. Florida East Coast R. Co. v. Peters (Fla.) \918D-121. 14. As a general rule, the consignee is prima facie entitled to bring an action against a carrier for the loss of or injury to goods or for negligent delay in their trans- portation or delivery, since it is a pre- sumption of law that on the delivery of goods to a carrier the title thereto vests in the consignee, and when the consignee is the party who has been damaged, with which damage the consignor has no especial con- cern, the consignee is the proper party plain- tiff, especially in an action ex delicto. Florida East Coast R. Co. v. Peters. (Fla.) 1918D 121. 15 The common-law rule was that an ac- tion for a tort must in general be brought in the name of the person whose legal rights has been infringed. Where the consignee has suffered special damages from the negli- gent delay in the transportation or delivery of goods by a carrier, the consignee is the proper party plaintiff in an action ex delicto, being "the real party in interest" within the intent and meaning of section 1365 of the General Statutes of 1906, providing that ''any civil action at law may be maintained in the name of the real party in interest." Florida East Coast R. Co. v. Peters (Fla.) 1918D 121. b. Evidence. 16. Burden of proof. In an action by the consignee against a carrier for the recovery of damages occasioned by the negligent delay of the carrier in the transportation and de- livery to the consignee of several shipments of crate material for the use of the con- signee in the shipment of his crop of toma- toes, it is incumbent upon the plaintiff to prove by competent evidence the amount of damages which he has suffered as a proximate result of such negligent delay. Florida East Coast R. Co. T. Peters (Fla.) 1918D-121. 17. Proof of damage. In a consignee's ac- tion against a carrier for damages to a shipment ' of tomatoes, the consignee's bills and the ledger account showing the amount charged to the parties to whom the tomatoes were sold, presumably OH account of their damaged condition, without evidence to show that the items represented the actual 'dam- age, are properly excluded. United Brokers Co. v. Southern Pac. Co. (Ore.) 1918D-814. 18. In an action by a consignee against a carrier for the recovery of damages occa- sioned by negligent delay in the transporta- tion of crate material to be used by the con- signee in the shipment of tomatoes, it is error to permit the plaintiff to testify, over the objection of the defendant, as to what amount of fertilizing material he had used in making his crop and of what such material consisted : such testimony not being pertinent 54 ANN. CAS. DIGEST (1918O-1918E). to the issues. Florida East Coast R. Co. v. Peters (Fla.) 1018D-121. 19. Evidence as to preliminary negotia- tions. In an action by a consignee against a carrier for the recovery of damages occa- sioned by negligent delay in the transporta- tion of goods, it may not constitute revers- ible error to permit the plaintiff to introduce documentary evidence, consisting of letters and telegrams which had passed between the plaintiff and the defendant, even if this evi- dence was incomplete in itself, and insuffi- cient to show knowledge or notice to the defendant of any special damages which the plaintiff might sustain by reason of delay in the transportation, since such evidence tend- ed to throw light upon the preliminary nego- tiations taking place between the plaintiff and the defendant and to explain the sub- sequent notice which was given to the de- fendant. This may likewise be true as to testimony of conversations between the plaintiff and the defendant. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. c. Damages. 20. Special damages Notice. In an ac- tion against a carrier for the recovery of damages occasioned by the negligent delay in the transportation of goods, whether brought by the consignor or consignee, only such dam- ages may be recovered as were contemplated or might reasonably be supposed to have entered into the contemplation of the par- ties to the contract of carriage. In order to charge the carrier with any special damages, it is incumbent upon the plaintiff to show that at the time of the shipment of the goods the carrier had notice or knowledge of such special facts and circumstances as to require expedition in the transportation of the goods, and that special damages would ensue by rea- son of negligent delay. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 21. Notification of express company, upon delivery to it for shipment of moving picture films, that the films are to be "rushed" be- cause they were to be exhibited, is insuffi- cient basis to render the express company, upon delay in such shipment, liable for special damages, consisting of the receipts or profits which the consignee lost by nonattendance in his theater owing to failure to receive the films in time to exhibit them as advertised, based on evidence that the pictures shown by the films were of an unusually attractive character, had been specially advertised to be exhibited, and would have been attended by a large number of persons paying a higher price than was charged for admission to the pictures necessarily shown in lieu of those shipped; such notification not being sufficient to show that such damages were within the reasonable contemplation of the parties. Chapman v. Fargo (N. Y.) 1918E-1054. (Annotated) 22. In an action by a consignee against a carrier for the recovery of damages occa- sioned by negligent delay in the transporta- tion of crate material, it is harmful error to charge that special damages may be re- covered as to which no notice was given though such charge included a reference to special damages arising from the receipt of other crates after the notice was given. And this error is not rendered harmless by a subsequent charge that special damages- cannot be recovered where it is not shown that notice was given of the anticipated special damages. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 23. In action by a consignee against a car- rier for the recovery of damages occasioned by negligent delay in the transportation of crate material, unless the carrier had at or before the receipt of the crates for transpor- tation knowledge or notice of the particular special damages that would result from an unreasonable delay in the transportation, such special damages are not recoverable; and, if several elements of unusual or special damages would proximately result from the negligence, there must have been notice or knowledge as to each such element of dam- ages as a probable result of the stated negli- gence before liability for such special damages arises in law. Where notice was given to the carrier of probable special damages as a result of unreasonable delay in transporting crate material after some shipments of such crate material had already been delivered to the carrier, such notice cannot be held to relate back, and the carrier would be liable only for special damages as for shipments received after such notice was given to it. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 24. It is doubtless true that common car- riers are supposed to take notice of such natural events as are familiar to ordinary people. They will be held to a knowledge of seedtime and harvest, and of the general ciistoms relating thereto in the territory where they do business. Even so. knowledge by a carrier of the fact that a shipper on its line has about four hundred acres planted in tomatoes would not carry with it the additional knowledge when such tomatoes would be ready for the shipment thereof to begin or when the shipper would need crates, the number thereof that he would need, or that a few days' delay in the transporta- tion thereof would result in special damages to such shipper. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 25. Where losses and injuries are not a necessary, or a usual and ordinary, but a proximate though unusual, result of action- able negligence, such losses and injuries may be compensated for by the recovery of special damages; but the negligent party cannot lawfully be made to respond in damages for losses that do not usually result from or could not ordinarily have been foreseen as a proximate result of a particular negligence, unless it be shown that there was knowledge or notice on the part of the negligent person that such losses would or might follow as a proximate result of a particular negligence. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. CARRIERS OF LI\ r E STOCK CARRIERS OF PASSENGERS. 55 CARRIERS OF LIVE STOCK. See CABBTJEBS; CARBIEBS OF GOODS. 1. Deviation from agieed method of trans- portation. The contract of carriage by ex- press of a car of horses is abandoned by the carrier putting it in a freight train, so that, notwithstanding stipulation of the contract, on which the rate is based, that the carrier's liability shall in no event exceed the agreed valuation of $100 for each horse, the shipper may recover the entire damage to them, and this though it is an interstate shipment. Reynolds v. Adams Express Co. (N". C.) 19180^1071. (Annotated) 2. Limitation of liability Validity. A provision in a uniform live stock agreement filed with the Interstate Commerce Com- mission and covering an interstate shipment which limited the shipper's damages for un- usual delay resulting from negligence to the amount actually expended by the shipper in the purchase of food or water for the stock while detained is invalid as a contract ex- empting the carrier from liability for its own negligence, and cannot be sustained as a contract limiting recovery to an agreed valuation in consideration of a reduced rate. Boston, etc. R. Co. v. Piper (U. S.) 1918E- 469. (Annotated) 3. Waiver of notice of claim. Require- ment in contract of shipment for written notice of claim within thirty days will be regarded waived, where the carrier's agents are fully cognizant of the injury to the horse shipped and the attendant circum- stances, and the carrier sends a veterinary surgeon to treat it. Reynolds v. Adams Ex- press Co. (N. C.) 1918C-1071. CARRIERS OF PASSENGERS. 1. Tickets and Fares, 55. 2. Duty in Carriage of Passengers: a. Duties and Liabilities in General, 55. b. To Protect Passengers, 56. c. To Passenger Boarding or Alighting, 56. 3. Ejection, 56. 4. Contributory Negligence, 56. 5. Actions for Injuries, 56. 6. Jitneys and Taxis, 56. See CAKBIEBS; FEBBIES; STBEET RAILBOADS. 1. Tickets and Fares. 1. Tender. A passenger need not tender the exact fare, but, if he tenders a reasonable sum, the carrier must accept it and furnish change; what is a reasonable sum depending largely upon whether the carrier is a steam railroad or a street railway, and upon the ease or difficulty in handling passengers in each locality. Jones v. Louisville R. Co. (Miss.) 1918D-180. . (Annotated) 2. Where plaintiff tendered the defendants conductor a $100 bill, with the request that the conductor return the necessary change when they reached destination, the size of the bill is immaterial to the question of the reasonableness of the amount tendered. Jones v. Louisville, etc. R. Co. (Miss.) 1918D- 180. (Annotated) 3. Requiring deposit of fare in box. It is a reasonable rule for a street railroad to re- quire its passengers personally to deposit the fare in a coin and ticket coilection box. before entering the car when such regulation is intended to facilitate traffic. Virginia R. etc. Co. v. O'Flaherty (Va.) 1918D-471. (Annotated) 4. Enforcement of rule. Under Code 1904, 1294d, providing that each conductor and motorman on cars of a street railroad shall be a special policeman, and have all the powers of conservators of the peace, when a passenger enters the car without paying his fare, and refuses to deposit it in the coin and ticket collection box provided for the purpose, as required by the rules of the com- pany, the conductor may detain him and carry him to the end of the line, and there turn him over to a regular police officer. Virginia R. etc. Co. v. O'Flaherty (Va.) 1918D-471. 2. Duty in Carriage of Passengers. a. Duties and Liabilities in General. 5. The degree of care imposed on a carrier of passengers, such as a street railway, by law and on grounds of sound public policy, is the exercise of the utmost diligent skill and foresight. Memphis St. R. Co. v. Cavell (Tenn.) 1918C-42. 6. Duty as to doors. A railroad common carrier is not bound to prevent its doors, after being opened by others, from closing when its train is in motion, and it commonly has no reason to expect passengers to be standing on the platform. Shaughnessy v. Boston, etc. R. Co. (Mass.) 1918C-376. (Annotated) 7. Where a passenger on defendant rail- road, as the train approached her destina- tion, and while it was several hundred feet away, left her seat and went through the open door to the platform and stood there with her hand on the jamb of the door to steady herself, and, when the train stopped in its usual manner, the door swung against her fingers and injured them, it is held that there was no negligence making the carrier liable. Shaughnessy v. Boston, etc. R. Co. (Mass.) 1918C-376. (Annotated) 8. In such case, there is no ground for the application of the doctrine of res ipsa loqui- tur. Shaughnessy v. Boston, etc. R. Co. (Mass.) 1918C-3T6. (Annotated) 9. Concurring negligence of other railroad. The negligence of a railroad in running a freight over a street railway crossing does not excuse such street railway, whose con- ductor was negligent in not making sure of the approach of the freight before attempting to cross, from liability to an injured passen- ger, since the passenger's injuries were the proximate result of the conductor's failure 56 AtfX. CAS. DIGEST (1918O-1918E). to discharge his duty. Memphis St. R. Co. v. Cavell (Tenn.) 191SC-42. (Annotated) b. To Protect Passengers. 10. Proximate cause. A railroad is not liable to a passenger assaulted and robbed on its train, the cars being without light and badly overcrowded, there being no causal connection between the road's supposed neg- ligent act in overcrowding and failing to light its cars and the injury charged to have re- sulted therefrom. Chancey v. Norfolk, etc. R. Co. (N. C.) 1918E-580. (Annotated) c. To Passenger Boarding or Alighting. 11. Allowing time to find seats. A com- mon carrier does not as a matter of law owe the duty of stopping its trains at sta- tions for a time sufficiently long to enable passengers who have gotten on safely to find seats. Blume v. Chicago, etc. R. Co. (Minn.) 1918D-297. 3. Ejection. 12. Reasonableness of tender. In an ac- tion for wrongful ejection from defendant's train for refusal to pay a train fare of four cents a mile, after the defendant's ticket agent at a union station had refused to change a $100 bill tendered by plaintiff in payment of a fare of $2.01, at three cents a mile, the evidence is held to make the reason- ableness of the sum tendered a question for the jury. Jones v. Louisville (Miss.) 1918D- 180. (Annotated) 13. Violation of rules. A street car com- pany's rule that its conductor should request passengers to enter the car and move forward and endeavor to keep the rear platform clear at all times, adopted to promote the safety of passengers and the efficiency of the serv- ice, is a proper and reasonable rule to which passengers are bound to conform when its requirements can be reasonably enforced; so that, where plaintiff, on request, refused to leave the rear platform and enter the car, where there was standing room, though at the rear entrance it appealed to be crowd- ed, and the conductor, after a repeated re- quest, attempted to put him off, but did not succeed, and did not make any wanton or reckles% assault, plaintiff cannot recover. Combs v. Southern Wisconsin R. Co. (Wis.) 1918C-532. (Annotated) 4. Contributory Negligence. 14. A passenger on a steam railroad is not justified in incurring risks unnecessarily, however small the chance may be that he will suffer thereby. Shaughnessy v. Boston etc. R. Co. (Mass.) 1918C-376. 5. Actions for Injuries. 15. Questions for jury. Where the motor- man of the defendant carrier knew that passengers were upon the left-hand running board, that he was on a curve, and that the other defendant's car of unusual width was approaching, the question of the defendant's negligence is for the jury. Walsh v. Boston El. R. Co. (Mass.) 1918C-443. 16. The negligence of the defendant, whose car, moving on an adjoining track in the opposite direction, struck plaintiffs is for the jury. Walsh v. Boston El. R. Co. (Mass.) 1918C-443. 17. Evidence in an action for personal in- jury from collision with a car of the other defendant on an adjoining track, while rid- ing on the left-hand running board of the defendant carrier's car, is held to make the plaintiffs' contributory negligence in riding in such position for the jury. Walsh v. Bos- ton El. R. Co. (Mass.) 1918C-443. (Annotated) 18. In an action against a street railway for injuries to a passenger, where, under all the evidence, no reasonable difference of opinion can exist as to the negligent char- acter of the acts of defendant's employees at a railroad crossing under the particular circumstances and at a particular time, the act is negligent in law. and there is no issue for the jury on the question of the negli- gence. Memphis St. R. Co. v. Gavell (Tenn.) 1918C-42. 6. Jitneys and Taxis. 19. Regulation. One formerly engaged in operating a motor vehicle for hire upon the streets of Seattle, having complied with Laws 1915, p. 227 (Rem. Code 1915, 5562- 37 et seq.), but who is now unable to meet the statutory requirements, because unable to furnish a bond, is not entitled to the privilege. Hadfield v. Lundin (Wash.) 1918C-942. (Annotated) 20. Laws 1915, p. 227 (Rem. Code 1915, 5562-37 et seq.), requiring of .persons, en- gaged in business of transporting passengers on streets in motor vehicles, a bond running to the state with good and sufficient surety company licensed to do business in the state as surety, is not complied with by a bond from a company authorized to write indem- nity insurance, indemnifying such person and by him assigned to the state for benefit of persons injured. Hadfield v. Lundin (Wash.) 1918C-942. (Annotated) CEMETERIES. 1. Cemetery association Right to vote. Creditors of a cemetery company, under the general ISLWS relating to cemeteries, have no right to vote at an election of trustees. Bonynge v. Frank (N. J.) 1918D-211. 2. Disinterment and removal of remains. A court of equity, notwithstanding the ab- sence of legislation on the subject, has power, in its sound judicial discretion, to authorize the removal of graves or cemeteries in a proper case, after due consideration of all the facts, and with due regard to the rights and feelings of all concerned. Grinnan v. Fredericksburg Lodge (Va.) 1918D-729. (Annotated) CERTIFICATES CHATTEL MORTGAGES. 57 3. A Masonic Lodge in 1784 was given a one-half acre lot in trust for the use of the lodge, and, shortly afterwards by acts, but without a formal dedication, set it aside as a burial place for its deceased members, and received contributions for the erection of a "George Washington Memorial Temple," and in 1912 resolved that the remains of those interred in the proposed site of such temple should, in a reverent and proper manner, be disinterred and removed to another part of the lot, with the right of relatives to take the remains for interment elsewhere. On a bill by parties, alleging that their ancestors had been buried in the cemetery to enjoin such removal, as an injury to their rights and feelings, it appeared that the cemetery had been neglected and had become unsight- ly, and that the erection of the temple would probably result in beautifying and caring for the burial part of the lot. It is held in view of Code 1904. 1416a, permitting removal of cemeteries under certain circumstances and conditions, that the proposed removal would not be enjoined. Grinnan v. Fredericksburg Lodge (Va.) 1918D-729. (Annotated) 4. Nature of interest in burial lot. The interest which one may have in a burial lot in a cemetery is not a fee, but is a privilege or license to make interments in the lot ex- clusively of others, as long as the cemetery remains as such. Grinnan v. Fredericksburg Lodge (Va.) 1918D-729. (Annotated) CERTIFICATES. Necessity for architect's certificate under* building contract, see CONTRACTS, 31, 32. CERTIFIED QUESTION. See APPEAL AND ERROR, 13. CHAMPERTY AND MAINTENANCE. Validity of provision against interest in con- tract of insurance, see INTEREST, 1., CHARACTER. Proof of character to impeach witness, see WITNESSES, 14, 17. Proof of good reputation to corroborate wit- ness, see WITNESSES, 16. CHARITIES. 1. Hospital as charity. A hospital organ- ized and maintained with funds donated, car- ing for all sick and injured persons brought to it, charging those who are able to pay and treating free of charge those who are not, operated under a board of trustees consist- ing of the Protestant Episcopal bishop and the rector and church wardens, is a charitable institution. Bishop Randall Hospital v. Hartley (Wyo.) 1918E-1172. 2. Validity of gift. A bequest to trustees "for such public, benevolent or charitable purposes in connection with" a certain parish as the trustees in their discretion shall think proper is void for uncertaintiy. Houston v. Burns (Eng.) 1918C-434. (Annotated) 3. Bequest of income Making up defi- ciency. Where testator bequeaths the in- come of certain portion of his property in trust to a charity, and placed a limitation thereon, a deficiency in income of one year cannot be made up out of the excess of an- other. Parkhurst v. Ginn (Mass.) 1918E- 982. 4. Liability for negligence of employee. A charitable institution operating a hospital is not liable for injuries to patients due to negligence of nurses employed in the hospi- tal, in the absence of its own primary negli- gence in hiring incompetent nurses. Bishop Randall Hospital v. Hartley (Wyo.) 1918E- 1172. (Annotated) CERTIORARI. Review of proceedings in juvenile court, see INFANTS, 13. 1. Presumption as to findings. The su- preme court, on certiorari to quash a judg- ment of the court of appeals on the ground of the refusal by the court of appeals to follow the last previous ruling of the su- preme court, will presume that the court of appeals, undertaking to state the facts, stated all the facts of record on the question in issue. State v. Ellison (Mo.) 1918C-1. CHALLENGE. Of voter, see ELECTIONS, 10. To jury, see JURY, 2-10. CHARTER. See MUNICIPAL CORPORATIONS, 1-6, 11. CHATTEL MORTGAGES. See MORTGAGES. Assignment of proceeds of building contract as chattel mortgage, see ASSIGNMENTS, 8, 9. Instrument as mortgage or pledge, see PLEDGE, 1, 2. Validity of assignment of corporate stock as collateral security as against trustee in bankruptcy, see BANKRUPTCY, 2. 1. Necessity of recording. A chattel mort- gage, even if not recorded, is valid and bind- ing between the parties. Martin v. Bankers Trust Co. (Ariz.) 1918E-1240. A.XX. CAS. UIGEST (1918C-191SEj. 2. Mortgage on stock of goods. A chattel mortgage upon future-acquired personal prop- erty or a fluctuating stock of goods is valid as between mortgagor and mortgagee. Kenney v. Hurlburt (Ore.) 1918E-737. (Annotated) 3. Where the lender to a purchaser of a stock of goods made the loan in good faith and took a chattel mortgage on the stock as security, believing that the mortgage was security, and such mortgage was not given for the benefit of the purchaser of the stock of goods, the proceeds of any sales to be paid to the mortgagee or used in purchase of new stock to come under the mortgage and to replace that sold at the inception of the transaction, the mortgage is valid as between the lender and the purchaser. Kenney v. Hurlburt (Ore.) 1918E-737. (Annotated) 4. Perfecting lien by taking possession. Though a chattel mortgage, executed in good faith by the purchaser of a stock of goods to the person who lent him money to enable him to make the purchase is invalid as against the creditors of the purchaser, it being upon a fluctuating stock of goods, the lender's mortgage lien is perfected when he is put in possession of the merchandise by the purchaser, the mortgage operating as an executory agreement which subjected after- acquired goods to the mortgagee's lien on his taking possession before the rights of third persons intervened. Kenney v. Hurlburt (Ore.) 1918E-737. 5. Mere existence of claims of creditors of the mortgagor, without attachment or seiz- ure upon execution, is not an intervention of the rights of third persons, preventing subjection of after-acquired goods to the lien of a chattel mortgage on the mortgagee's taking possession before the rights of third persons intervened. Kenney v. Hurlburt (Ore.) 1918E-737. 6. Where money was lent to enable the borrower to purchase a stock of goods, and the lender took a chattel mortgage on the fluctuating stock, authorizing him, in case of a default, to take possession of the goods and sell them at private sale without notice to pay the borrower's note, the fact that the lender, when he took possession under the stipulation and was proceeding in good faith to sell the property, was not unmindful of the claims of unsecured creditors and offered and proposed to get all he could out of the property for them, does not lessen nor defeat his security. Kenney v. Hurlburt (Ore.) 1918E-737. 7. Accounts assigned as collateral Valua- tion and disposal of proceeds. Where ac- counts payable to a mortgagor are assigned to the mortgagee as collateral security for the note secured by the mortgage, the ac- counts will not be given an estimated value in reducing the balance due on the note, but the actual amount realized on the accounts will be added to the proceeds of the sale of the mortgaged property for the satisfaction of the balance due on the note and the costs of foreclosure, the surplus to go to the mort- gagor. Kenney v. Hurlburt (Ore.) 1918E- 737. 8. The mortgagee in such a case must ac- count to the receiver of the mortgagor for the balance realized thereon and for the un- collected accounts. Kenney v. Hurlburt (Ore.) 1918E-737. CHECK. Erroneous notation on check as affecting validity of tender of payment, see PAY- MENT, 1, 2. CHILD. See INFANTS; PARENT AND CHILD. CHILD LABOR. Validity of act prohibiting transportation in interstate commerce of products of child labor, see INTERSTATE COMMERCE, 10-12. CHILDREN. As including grandchildren, see WORDS AND PHRASES, 2. Injury from electric wires, see ELECTRICITY, 6-8. CHIROPRACTIC. * Validity of statute regulating practice of os- teopathy as affected by inclusion of chi- ropractic, see PHYSICIANS AND SUR- GEONS, 2, 3. Violation of constitutional provision as to title and subject matter of statute by including chiropractic in act regulating practice of osteopathy, see STATUTES, 3. CIRCUMSTANTIAL EVIDENCE. In prosecution for homicide, see HOMICIDE, 5. To establish fraud, see FRAUDS, 14. CIVIL RIGHTS. 1. Construction of statute. Section 40 of the New York Civil Rights Law (McKinney's Consol. Laws, Book 8, p. 37) as amended by Laws 1913, c. 265, as to denial of accommoda- tion in public places on account of race, and section 41 (McKinney's Consol. Laws, Book 8, p. 42) as so amended, imposing a penalty, being both penal and criminal, must be strictly construed, and will not be enforced beyond the clear legislative intent. Gibbs v. Arras Bros. (X. Y.) 1918D-1141. 2. Liquor saloon as "place of public ac- commodation." Said section 40, as amended, providing that no proprietor of ''any place of public accommodation, resort or 'amuse- CLASS LEGISLATION COMPULSORY SERVICE. 59 ment" shall deny accommodation to any per- son on account of race, creed, or color, and defining such place to include any inn, tav- ern, or hotel which is conducted for the en- tertainment of guests, or for the accommoda- tion of those seeking health, recreation, or rest, any restaurant, eating house, barber shop, theater and music hall, does not include a liquor saloon. Gibbs v. Arras Bros. (X. Y.) 1918D-1141. (Annotated) CLASS LEGISLATION. See CONSTITUTIONAL LAW. CLOSING HOURS. Validity of act regulating closing hours of mercantile establishments, see CONSTITU- TIONAL LAW. 6-9. CLOUD ON TITLE. Injunction against execution sale to prevent cloud on title, see INJUNCTIONS, 5, 7, 9. COMBINATIONS. See LABOB COMBINATIONS; MONOPOLIES. COMMERCE. See INTERSTATE COMMERCE. COMMISSION FORM OF GOVERN- MENT. Validity of statute providing for recall of commissioner, see MUNICIPAL CORPORA- TIONS, 7. COMMISSION MERCHANTS. See FACTORS. COMMON CARRIER. See CARRIERS; CARRIERS OF GOODS; CARRI- ERS OF LIVE STOCK; CARRIERS OF PAS- SENGERS. COAL. Power of city to maintain coal yard, see MU- NICIPAL CORPORATIONS, 12. COHABITATION. Presumption of meretricious relationship, see EVIDENCE, 37. COLD STORAGE. Negligence in care of eggs, see FOOD, 1-4. Power of city to operate, see MUNICIPAL CORPORATIONS, 11. COLLATERAL ATTACK. On award of arbitrators, see ARBITRATION and AWARD. 5. On judgment, see JUDGMENTS, 18. COLLATERAL SECURITY. See PLEDGE. COLORED PERSONS. Reference by prosecuting attorney to race of accused, see ARGUMENT AND CONDUCT OF COUNSEL, 2. Statute penalizing denial of accomodation in public places on account of race, see CIVIL RIGHTS, 1, 2. COMMON-LAW MARRIAGE. See MARRIAGE, 2-5, 8. COMMUNITY PROPERTY. See HUSBAND AND WIFE, 18-20. Levy on community property, see ATTACH- *MENT, 1, 2. Lien of judgment on community property, see JUDGMENTS, 6. COMPLAINT. See PLEADING, 2-4. COMPROMISE AND SETTLEMENT. Admission in connection with offer of com- promise, see AdMissiONS AND DECLARA- TIONS, 14, 15. Settlement of cause of action for conversion, see CONVERSION, 3. 1.' Binding effect. Where, as in this case, at least one of the items in the account sued for is covered by a contract of compromise between the parties, an instruction to the jury that such compromise is binding upon the parties thereto unless impeached for fraud, or because something has been in- advertently omitted therefrom, is properly given. Parkersburg, etc. Sand Co. v. Smith, (W. Va.) 1918E-449. COMPULSORY SERVICE. See ARMY AND XAVY. 60 A NX. CAS. DIGEST (1918C-1918E). CONDITIONAL SALES. Liability of purchaser under conditional sale contract for goods destroyed, see SALES, 8. CONDONATION. As defense to proceeding for annulment of marriage, see MAKBIAGE, 13, 14. CONFIDENCE GAME. See FALSE PRETENSES, 1-4. CONFIDENTIAL COMMUNICATIONS. See LIBEL AND SLANDEE; WITNESSES. CONFLICT OF LAWS. Applicability of workmen's compensation act to employer who removed plant from state before passage of act, see MASTEB AND SERVANT, 6. Law governing payment of benefits by for- eign beneficial associations, see BENEFI- CIAL ASSOCIATIONS, 20. 1. Contract to arbitrate. Under the laws of New York, a provision in a foreign con- tract that disputes between the charterer and the owner of a vessel should be settled by arbitration is unenforceable, because it would be held to affect only the remedy and to be contrary to public policy, as ousting the courts of jurisdiction. Aktieselsk Abet Korn-og, etc. v. Rederiaktiebolaget, etc. (U. S.) 1918E-491. (Annotated) 2. Insurance Contract. Where a foreign insurance company licensed to do business in the state of Missouri, issues a life policy to a resident of that state, the contract is a Missouri one. New York. Life Ins. Co. v. Dodge (U. S.) 1918E-593. (Annotated) 3. A clause in a life policy, issued by a foreign insurer licensed to do business in Missouri, which provides that loans can be obtained by the insured on the sole security of the policy, imposes no obligation on the insurer to make such loans, if the Missouri statute applied and prohibited hypothecation of the reserve as security. New York Life Ins. Co. v. Dodge (U. S.) 1918E-593. (Annotated) 4. As a state cannot, under Const. U. S. Amend. 14, forbid a citizen from making con- tracts outside its limits while he remains within, Rev. St. Mo. 1899, 7897, providing that no policies of life insurance issued by any company authorized to do business in the state shall after payment of three annual premiums be forfeited by reason of nonpay- ment, but that the net value of the policy shall be computed, and, after deducting from three-fourths of such value any notes or other evidence of indebtedness given on ac- count of past premium payments, the bal- ance shall be taken as a net single premium for temporary insurance, does not apply to a loan contract entered into between a policyholder, a resident of Missouri, and a New York insurer authorized to do business in Missouri, and Which in that state wrote the policy involved, where it was expressly agreed between the parties in the loan agree- ment, the application for which was trans- mitted to the insurer's New York office, that the laws of New York, under which the hypothecation of the reserve was valid, should govern. New York Life Ins. Co. v. Dodge (U. S.) 1918E-593. (Annotated) 5. Rules of pleading and evidence. In the absence of Congressional enactment and sub- ject to section 3999, St. 1893 (section 4772, Rev. Laws 1910) the general rules of pleading and evidence obtain 'in ascertaining in one state what faith and credit is given a judg- ment in the courts of another state in which such judgment was rendered. St. Louis, etc. R. Co. v. Crews (Okla.) 1918C-823. CONFUSION OF GOODS. 1. Rights of lien claimant. Rein. & Bal. Code, 1188, provides that, during the year in which farm labor is performed, the laborer shall have a lien upon all crops raised on the land, superior to all other liens, includ- ing a prior chattel mortgage. Section 1190 requires the claim of lien to be filed with the county auditor within forty days after the close of the Avork; section 1190a gives all lienholders for farm labor the rights secured to lienors on logs as specified in section 1181, providing that any person eloinging or ren- dering it difficult, uncertain, or impossible to identify any sawlogs upon which there is a lien, without the express consent of the lien- holder, shall be liable for damages to the amount secured by the lien, and that on a showing to the court in the action to enforce the lien the 'court shall enter a personal judg- ment against such person if a party to the action, and that all the damages may be recovered by a civil action against such per- son. Plaintiff performed farm labor in 1912- 1913, and in 1913 a lien therefor was adju- dicated in his favor, and the grower had it put in a public grain warehouse and com- mingled with other wheat and negotiable warehouse receipts issued to the defendant, mortgagee, who sold the wheat and deliv- ered the receipts to the purchaser. It is held that as its identification as the wheat from the land on which plaintiff had labored wa< made difficult, uncertain, or impossible, he might recover damages of the defendant. Hubbard v. Johnson (Wash.) 1918C-84. CONGESTION OF TRAFFIC. As affecting duty of carrier to transport Is, see CARRIERS OF GOODS, 2. COXXKCTIXG CARRIERS CONSTITUTIONAL LAW. CONNECTING CARRIERS. See CARRIERS OF GOODS, 11. CONSCRIPTION. Validity and construction of conscription act. see ARMY AND XAVY, 1-7. CONSECUTIVE SERVICE. Statute limiting, see PUBLIC OFFICERS. 2-5. CONSIDERATION. See CONTRACTS, 25. For contract of pledge, see PLEDGE, 3. For contract of suretyship, see SURETYSHIP, 1-3. CONSORTIUM. Meaning of term, see WORDS AND PHRASES, 3. Loss of consortium as bodily injury allowing husband to subject insurance money to satisfaction of judgment for recovery of damages for injury to wife, see INSUR- ANCE, 41 Right of wife to sue for loss of consortium, see HUSBAND AND WIFE, 21. CONSPIRACY. Sufficiency of evidence of fraud In voting congest to warrant instruction of con- spiracy, see FRAUD, 15. 1 Criminsl conspiracy Proof. A conspir- acy may be inferred t'rom circumstances. State y. Hyde (Ore.) 1918E-688. 2. Civil liability Burden of proof. In an action for conspiracy to injure plaintiff's busi- ness, where plaintiff, by amendment, charged a defendant with a separate and distinct tort done by him as part of the conspiracy, the burden of proof- was on plaintiff to prove such separate tort. McClintock v. McClure (Ky.) 1918E-96. CONSTITUTIONAL LAW. 1. Nature and Operation of Constitutions, 62. 2. Police Power: a. In general. 62. b. Regulation of business. 62. 3. Due Process of Law, 62. 4. Privileges and Immunities, 62. 5. Personal and Religious Liberty, 63. 6. General and Special Laws, 63. 7. Delegation of Legislative Powers, 63. 8. Self-executing Provisions, 63. 9. General Principles Governing Determina- tion as to Constitutionality of Statutes: a. In General, 63. b. Who May Raise Constitutional Question, 64. c. Construction in Favor of Validity, 64. d. Presumption in Favor of Validity, 64. e. Wisdom of Statute, 64. 10. Construction of Constitutions, 64. Arbitrary distinction in statute limiting of labor for females, see LABOR LAWS, 6-8. Assessment for improvements by front-foot rule as violating fourteenth amendment, see TAXATION, 49. Charter provision entitling only resident owners to sign remonstrance against pub- lic improvement as conflicting with four- teenth amendment, see TAXATION, 47. Classification bv license laws, see LICENSES, 3. Constitutional requirements as to title and subject of statutes, see STATUTES, 1-3. Due process of law in proceedings for equal- ization of taxes, see TAXATION, 18. Effect of partial invalidity of statutes, see STATUTES, 8-10. Equality in taxation, see TAXATION, 1. Legislative control of voters, see ELECTIONS, 17. 18. iPermitting graduating exercises to be held in church as violating constitutional in- hibition against sectarian instruction in public schools, see SCHOOLS, 5, 6. Power of municipality to invoke protection of constitution, see MUNICIPAL CORPORA- TIONS, 6. Power of state to regulate or prohibit use of streets for business for private gain, see STREETS AND HIGHWAYS, 3-6. Requirements of clause as to nature and cause of accusation against accused, see INDICTMENTS AND INFORMATIONS, 1, 3-6. Violation of constitutional right of trial by jury by summary judgment on appeal bond, see APPEAL AND ERROR, 116. Validity of Statutes Relating to Particular Subjects. Appropriation by state for assisting United States in carrying on war, see WAB, 1-4. Authorizing city or town to enter business of selling fuel to inhabitants, see MUNICI- PAL CORPORATIONS, 12. County fence law, see FENCES, 1. Creating city court with jurisdiction concur- rent with justice of the peace, see COURTS, 1. Creating state insurance board, see INSUB- ANCE, 8, 14. Election laws, see ELECTIONS, 1-3, 5-9. Establishing minimum wage for women, see LABOR LAWS, 4, 5. Federal reserve bank act, see BANKS AND BANKING, 1, 2. Giving option to city as to form of govern- ment, see MUNICIPAL CORPORATIONS, 1-5. AXX. CAS. DIGEST (1918C-1918E). Limiting consecutive service of public offi- cers, see PUBLIC OFFICERS, 2-5. Limiting fee of attorney for collection of claim 'against government, see ATTOR- NEYS, 6-8. Pension act, see PENSIONS, 1, 2. Prescribing form of indictment, see INDICT- MENTS AND INFORMATIONS, 1-6. Prescribing standard of weights and meas- ures, see WEIGHTS AND MEASURES, 1. Prohibiting assignment of claim to nonresi- dent, see ASSIGNMENTS, 1. Prohibiting issuance of trading stamps, see TRADING STAMPS, 1-4. Prohibition of pool halls by local option, see LOCAL OPTION, 1, 2. Providing for confiscation of false weighing or measuring device, see WEIGHTS AND MEASURES, 2. Providing for recall of commissioner of city having commission form of government, see MUNICIPAL CORPORATIONS, 7. Regulating practice of osteopathy, see PHY- SICIANS AND SURGEONS, 1-3. Requiring foundry to provide toilet facilities for workmen, see LABOR LAWS, 3. Requiring junk dealers to take out license, see JUNK, DEALERS AND JUNK SHOPS, 1, 2. Sunday ordinances, see SUNDAYS AND HOLI- DAYS, 1-3. Torrens act, see RECORDING ACTS, 2-5. 1. Nature and Operation of Constitution. 1. Statutes may be nullified, in so for as fu- ture operation is concerned, by the constitu- tion as well as by statute, as the constitution is the direct, positive, and "limiting voice of the people, and may establish a policy, fix a limit to legislation on a given subject, or prohibit specified acts as being performed by public servants. Wren v. Dixon (Xev.) 1918D-1064. 2. Effect on rights previously vested. Where the rights of a city under a claim of lien had become fixed at the time the provi- sions of the constitution became effective and in force, its rights would not be affected be- cause the law, under which its right to the lien accrued, might conflict with the constitu- tion, as such rights were preserved by section 4, art. 22, of the constitution. Roswell v. Bateman (X. M.) 1918D-426. 2. Police Power. a. In General. 3. It is fundamentally true that whatever may be enjoined by a court of equity may by legislation be declared malum prohibitum. Hall v. Johnson (Ore.) 1918E-49. 4. It is not the function of the Federal Su- preme Court, under the authority of the fourteenth amendment, to supervise state legislation in the exercise of the police poAver beyond protecting against exertions of such authority in the enactment and enforcement of laws of an arbitrary character, having no reasonable relation to the execution of lawful purposes. Jones v. Portland (U. S.) 1918E- 660. 5. Congress has the power to regulate and restrain the conduct and contracts of all per- sons for the common good, the possession and enjoyment of liberty and property being subject to such reasonable conditions as may be essential to the safety, health, peace, good order, and morals of the community. Moyers v. Memphis (Tenn.) 1918O854. b. Regulation of Business. 6. Closing hours. Laws 1915, c. 23, entitled "An act to regulate the working hours of all employees of mercantile establishments," providing by section 1 that all mercantile and commercial houses in cities of 10,000 pop- ulation and over should close at 6 P. M., on every business day in the year except for the six business days preceding December 25th, by section 2, exempting all houses dealing mainly in provisions of a perishable nature which are regarded as public necessities, by section 3, exempting drug stores which are regarded as public necessities, violates the constitutional provision that the subject of an act shall be clearly expressed in its title, since instead of regulating the working hours of employees, the body of the act fixed a closing hour for mercantile and commercial houses, extending both to those having em- ployees and those having none. Saville v Corless (Utah) 1918D-196. (Annotated) 7. Such act is invalid as an exercise of the police power, since the men's furnishing and jewelry business conducted by one of the peti- tioners without help, and the retail cigar business of the other petitioner, does not affect the health or safety of those engaged in it, and since the act fixes a closing hour and is not directed to enterprises affecting the health, morals, safety, or general welfare Saville v. Corless (Utah) 1918D-198. (Annotated) 8. Such act is objectionable j.s being special legislation, since it only applies to cities of 10,000 or more, and since it exempts drug stores and commercial houses dealing mainly in food stuffs and provisions of a perishable nature. Saville v. Corless (Utah) 1918D-198. (Annotated) 9. Such act violates the constitutional right to enjoy, acquire, and possess property, the most valuable of which is that of the right to sell. Saville v. Corless (Utah) 1918D-198. (Annotated) 3. Due Process of Law. 10. The due process of law clauses of the Federal Constitution, while designed to pre- serve life, liberty, and property inviolate against arbitrary power, do not interfere with the police power of the different states. Moyers v. Memphis (Tenn.) 1918C-854. 4. Privileges and Immunities. 11. Attaching conditions to privileges granted. Congress ha the power to deter- mine the conditions upon which the govern- CONSTITUTIONAL LAW. ment will consent to be sued, or upon which it will grant pensions or other bounties; or prescribe conditions upon which attorneys will be allowed to represent claimants or litigants before any of the courts of the gov- ernment, within certain reasonable limita- tions, if done by general laws applicable to all alike, and in advance of the services ren- dered in such courts. Moyers v. Memphis (Tenn.) 1918C-854. 12. Preservation of rights of accused. It is the duty of the supreme court to give effect to all the constitutional and other rights of a defendant in a criminal case, and also to sustain all legislative enactments, un- less it is satisfied beyond- a reasonable doubt that they violate the fundamental law. Peo- ple v. Brady (111.) 1918C-540. 5. Personal and Religious Liberty. 13. Right to fallow occupation. The right of a citizen to pursue any calling, business, or profession he may choose is a property right to be guarded by equity as zealously as any other form of property. New Method Laundry Co. v. MacCann (Cal.) 1918C-1022. 14. Liberty of contract. The liberty of contract is one of the inalienable rights of a citizen, embracing, as it does, the right to enter a lawful calling and to acquire and dis- pose of property, so that a general prohibi- tion against entering into contracts with re- spect to property is unconstitutional and void. Moyers v. Memphis (Tenn.) 1918C-854. 15. Liberty of contract and right of prop- erty are not absolute and universal, in spite of the fifth and fourteenth amendments to the United States Constitution, and it is within the power of the government to re- strain some individuals from all contracts, as well as all individuals from some con- tracts. Moyers v. Memphis (Tenn.) 1918C- 854. 16. Right to patronize tradesman. The constitutional guaranties of liberty include the privilege of every citizen to freely select those tradesmen whom he may desire to patronize, and equity cannot invade or take away this right, either directly or indirectly, without due process of law. New Method Laundry Co. v. MacCann (Cal.) 1918C-1022. 6. General and Special Laws. 17. Exceptions. Exceptions founded on reason do not render a general statute or ordinance unconstitutional as special legis- lation. State v. Scullin-Gallagher Iron, etc. Co. (Mo.) 1918E-620. 7. Delegation of Legislative Power. 18. Statute effective on ratification by voters/ The submission by the legislature of a special and local statute proposing a new form of government for an existing municipal corporation to a vote of the elec- tors of the municipality for adoption or rejection is not a delegation of the authority or functions of the legislature. Gretna v. Bailey (La.) 1918E-566. (Annotated) 8. Self-executing Provisions. 19. In determining when a constitutional provision is self-executing, there is a dis- tinction between a declarative limitation of legislative power on a given subject, within which legislation may or should be enacted, and positive constitutional inhibition which no legislative act can relieve or modify; the- former might require future legislation; the latter must, from its nature, be self-execut- ing. Wren v. Dixon (Xev.) 1918D-1064. (Annotated) 20. Prohibitory provisions in a constitu- tion are usually self-executing to the ex- tent that anything done in violation of them is void, and no legislation is required- to execute such provision; but they are not self-executing when they merely indicate principles without laying down rules by. which they may be given the force of law. Wren v. Dixon (Nev.) 1918D-1064. (Annotated) 21. Taxation of patented mines. Const, art. 10, 1, as amended in November, 1902 (see St. 1901, p. 136), declared that the legislature should provide a uniform and equal rate of assessment and taxation to se- cure a just valuation of real and personal property, mining claims, etc., and that the acreage of patented claims should be assessed at the valuation of $10 per acre. St. 1905, c. 58, provided for the assessment of patented mines at such valuation. Article 10, 1, as amended in 1906 (see St. 1907, p. 501), pro- vided that patented mining claims should be assessed at not less than $500, except when $100 in labor has been actually performed on such mine during the year, in addition to the tax on the net proceeds, and no legislation was passed pursuant to such provision until 1913. It is held that . the constitutional amendment of 1906 was self-executing at least to the provision for taxation of paten-t- ed mines, and absolutely nullified the statute of 1905, so that an assessment thereunder in 1909 was invalid. Wren v. Dixon (Nev.) 1918D-1064. (Annotated) 9. General Principles Governing Determina- tion as to Constitutionality of Statues. a. In General. 22. Natural effect. A statute must be judged by its natural and reasonable effect. Hammer * v. Dagenhart (U. S.) I918E-724. 23. Necessity of conflict with constitution. A statute cannot be judicially declared be- yond the power of the legislature to enact, unless some provision of the constitution which is in conflict with it can be specifically pointed to. Cleveland v. WatertowH (N. Y.) 1918E-574. 24. Federal review of state legislation While the ultimate authority to determine the validity of state legislation under the fourteenth amendment rests in the Federal Supreme Court, local conditions are of such varying character that what is or is not a public use in a particular state, for which money may be raised by taxation, is a matter respecting which local authorities have pe- ANN. CAS. DIGEST (1918C-1918E). culiar facilities for securing accurate in- formation, and a judgment of the highest court of the state as to what should be deemed a public use is entitled to the high- est respect. Jones v. Portland (U. S.) 1918E-660. 25. In determining the constitutionality of state statutes enacted at different dates un- der which license taxes were assessed, the Federal Supreme Court should follow the decisions of the state court and construe the statutes as being part of a single scheme. International Paper Co. v. Commonwealth of Massachusetts (U. S.) 1918C-617. b. Who May Raise Constitutional Question. 25. Persons entitled to attack statute. This court will not pass upon the constitu- tionality of an act of the legislature nor of any of its provisions until there is presented a proper case in which it is made to appear that the person complaining is entitled to the benefits of the act or about to be subjected to some of its burdens or penalties. Insur- ance Go. of North America v. Welch (Okla.) 1918E-471. 26. Ministerial officer. It is the impera- tive duty of a ministerial county officer to obey the order of a tribunal vested with authority to direct his action, and he cannot question or. decide on its validity or attack the validity of the statute on which it pro- ceeds. People v. Pitcher (Colo.) 1918D-1185. (Annotated) c. Construction in Favor of Validity. 27. It is settled law that the charter of a municipality or a state statute will not be held to violate the constitution if any other rational interpretation can be given it. this being particularly 'true with respect to the states where the legislature has plenary power. Pitman v. Drabelle (Mo.) 1918D- 601. d. Presumption in Favor of Validity. 28. A statute is presumptively valid, and its unconstitutionality must appear beyond reasonable doubt before it will be set aside. State v. Scullin-Gallagher Iron, etc. Co. (Mo.) 1918E-620. 29. If there is a doubt as to the constitu- tionality of a law, it must be solved in favor of its validity; and it is only where a law is manifestly in violation of some provision of the constitution that a court may declare it void. Ex parte Mode (Tex.) 1918E-845. 30. No act of the legislature will be pro- nounced unlawful unless its nullity is made manifest beyond a reasonable doubt; doubt alone being insufficient to overturn an act of the legislature. State v. State (Mont.) 1918D-1101. e. Wisdom of Statute. 31. Courts have no right to strike down laws enacted by the legislature, no matter how unwise they may deem them, unless they can find an inhibition in the consti- tution. Ex parte Mode (Tex.) 1918E-845. 32. When the legislature acts within its constitutional authority, in the exercise of the police power of the state, the expediency of its action is not a question for the court*. Hadfield v. Lundin (Wash.) 1918C-942. 10. Construction of Constitutions. 33. The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it, which intent is to be found in the instrument it- self, as it is to be presumed that language has been employed with sufficient precision to convey it, and, unless it appears that the presumption does not hold in the particular case, nothing will remain but to enforce it. Wren v. Dixon (Nev.) 1918D-1064. 34. Extraneous aids. In seeking the in- tent of the people in adopting a constitution- al limitation, if concealed in ambiguous phraseology, courts may properly resort to other relevant provisions of the instrument, the history of the times, laws then existing, the mischiefs existing, and the appropriate remedies. Kelso v. Cook (Ind.) 1918E-68. 35. In construing ambiguous constitutional provisions, the legislative interpretation, when acquiesced in for a long period of time, is entitled to great weight with the court Kelso v. Cook (Ind.) 1918E-68. CONSTRUCTION. Of certificate of fraternal benefit society, see BENEFICIAL ASSOCIATIONS, 3. Of constitution, see CONSTITUTIONAL LAW 7 33-35. Of contracts generally, see CONTRACTS, 7-11 Of contracts with United States, see UNITED STATES, 1-6. Of deeds, see DEEDS, 4-7. Of insurance policy, see FIRE INSURANCE. 4- 14; INSURANCE, 16-20; LIFE INSURANCE 7-9. Of option timber contract, see TREES AND TIMBER, 1, 2. Of statutes, see STATUTES, 11-20. Of verdict, see VERDICTS, 4. Of wills, see WILLS, 26-37. CONSTRUCTION WORK. See CONTRACTS, 24-36. CONSTRUCTIVE TRUST. See TRUSTS, 1-13. CONTEMPT. Marriage in violation of decree of divorce as contempt, see MARRIAGE, 2. CONTIGUOUS CO.X TRACTS. CONTIGUOUS. 65 Adverse possession of one of several tracts contiguous to each other, see ADVERSE POSSESSION, 2. CONTINUANCE. See TBLAL, 1. Suspension of business in justice's court as affecting validity of default judgment, see JUSTICES OF THE PEACE, 2. CONTINUING OFFENSE. Meaning of term, see WORDS AND PHRASES, 4. CONTRACTS. 1. Elements, 65. 2. Construction and Interpretation, 66. 3. Validity: a. In General, 66. b. Contract Contemplating Practice of Law by Corporation, 66. c. Contracts for the Suppression of Bid- ding, 66. d. Relief of Parties, 66. 4. Performance or Breach, 66. 5. Building or Working Contracts: a. Construction of Provisions, 67. b. Performance or Breach, 67. c. Bond of Contractor, 67. d. Actions, 68. See AGENCY; FIRE INSURANCE; FRAUD; FRAUDS, STATUTE OF; GUARANTY; IN- DEMNITY; INDEPENDENT CONTRACTORS; INSURANCE; LANDLORD AND TENANT; LIFE INSURANCE; MSETER AND SERVANT; RESCISSION, CANCELLATION AND REFOR- MATION: SALES; SPECIFIC PERFORMANCE; SURETYSHIP; VENDOR AND PURCHASER. Of compromise, see COMPROMISE, 1. . Agreement of seller to repurchase corporate stock, see CORPORATIONS, 23-28. Agreement to dispense with probate of will, see WILLS, 24, 25. Contracts with United States, see UNITED STATES, 1-6. Effect of war on contracts, see WAR, 6-7. Implied agreement for compensation for services rendered to parent, see PARENT AND CHILD, 3. Liens under building contracts, see MECHAN- ICS' LIENS, 1-15. Option contract as entitled to record, see RE- CORDING ACTS, 1. Option timber contract, see TREES AND TIM- BER, 1, 2. Power of municipalities to contract, see Mtr- NICIPAL CORPORATIONS, 9, 10. Recovery on contract where contract partly within statute of frauds, see FRAUDS, STATUTE OF, 2. Severable contract for employment of real estate broker, see BROKERS, 1, 10. Ann. Cas. Dig. 191SC-E. 5. Validity of agreement to divide fees of pub- lic* officer, see PUBLIC OFFICERS, 12. Validity of contracts between husband and wile, see HUSBAND AND WIFE, 13, 14. Waiving tort and suing on contract, see TORTS, 1, 2. 1. Elements. 1. Effect of intoxication of party. The fact that a party to a contract is intoxicated at the time of entering into it renders the contract voidable only and it is ratified by a failure to disaffirm it within a reasonable time. Bawlf Grain Co. v. Ross (Can.) 1918E-319. (Annotated) 2. Consideration Marriage of third per- sons. Four days before the marriage of de- fendant's daughter to G., defendant and (i. executed a contract, reciting the marriage engagement, and providing that defendant, in consideration of all that was therein set forth, agreed to pay his daughter annually a specified sum, the first payment to be made on a specified date, which was the date of the marriage. On the date of the marriage, the first payment was made to the daughter. It is held that the agreement was not with- out consideration on the theory that the only consideration was G.'s performance of his legal obligation to the daughter, as G. and the daughter jointly could have rescind- ed or modified the contract, and the promise was intended to affect the conduct -of both and not of G. only; it being a legitimate in- ference from the relations of the parties and the other attendant circumstances that she, as well as G., knew of the promise at the time of the marriage, and that both acted upon the faith of it. De Cicco v. Schweizer (N. Y.) 1918C-816. (Annotated) 3. While the prospective marriage is not a consideration for the promise unless the par- ties treat it as such, the defendant's prom- ise is an agreement in consideration of the marriage and not a mere offer of a gift, or at least the inference cannot be drawn as one of law that it is not a promise in con- sideration of marriage. De Cicco v. Schweizer (N. Y.) 1918C-816. (Annotated) 4. The promise having been made while G. and the daughter were free to retract or to delay the marriage, and as neither retracted nor delayed, it is a legitimate inference that they were induced by the promise to put the thought of rescission or delay aside, and, to support the contract, it is not necessary to show that the daughter was ready to with- draw. De Cicco v. Schweizer (N. Y.) 1918C- 816. (Annotated) 5. Since -under such a contract G. does not promise anything by the contract, and the consideration is not a promise, but the act of marrying, the contract is unilateral, and un- til the marriage occurs defendant is not bound, though G. remains willing to marry. De Cicco v. Schweizer (N. Y.) 1918C-816. (Annotated) 6. As the promise though made to G., is intended for the benefit of the daughter, she has a right to adopt and enforce it when it comes to her knowledge, and in doing so she 66 ANN. CAS. DIGEST (1918C-1918E). makes herself a party to the contract. De Cicco v. Schweizer (N. Y.) 1918C-816. (Annotated) 2. Construction and Interpretation. 7. Construction together of separate in- struments. Where a contract is executed which refers to and makes the conditions of another instrument a part of it, the two will be construed together as the agreement of the parties. Aetna L. Ins. Co. v. Bradford (Okla.) 1918C-373. 8 Intent of parties. The cardinal rule of interpretation is the discovery of the intent and meaning of the parties from the lan- guage used, and this applies to sealed as well as to unsealed writings. Devy v. Connect- icut Co. (Conn.) 1918D-270. 9. If the intent and purpose of parties to a contract is reasonably within the scope of the language used, it must be taken to be a part of the agreement as if plainly expressed. Manson v. Curtis (N. Y.) 1918E-247. 10. The ascertainment of the substantial intent of the parties, as expressed, is the fundamental rule in the interpretation of all contracts, such intent to be determined in view of the agreement as a whole, the mat- ters with which it deals, and the circum- stances under which it was made. Manson v. Curtis (K Y.) 1918E-247. 11. Agreement for correspondence school course. Under the defendant's contract with plaintiff university for course of instruction by correspondence, "including text and serv- ice as outlined, for which I agree to pay . . . $66 . . . express charges on text to be prepaid by the university and included in my account," the defendant must pay, be- sides the $66, the express charges. La Salle Extension University v. Ogburn (N. C.) 1918C-887. 3. Validity. a. In General. 12. An agreement capable of a construc- tion which will make it valid will not be ad- judged illegal. Manson v. Curtis (N. Y.) 1918E-247. 13. Partial invalidity. Where the main purpose of a single and indivisible contract between corporate stockholders was illegal, being to secure a passive directorate, sub- ject to control of one stockholder, the whole contract, including both its main and second- ary stipulations, is void and invalid. Man- son v. Curtis (N. Y.) 1918E-247. 14. Good faith in making illegal contract. The good faith of corporate stockholders in making an agreement, contemplating a passive directorate to be controlled by one, does not purge the agreement of its illegal- ity. Manson v. Curtis (X. Y.) 1918E-247. b. Contract Contemplating Practice of Law by Corporation. 15. Where a defense set up in a corpora- tion's action on a contract was that the con- tract was void because plaintiff by it held itself out to be "lawfully qualified to prac- tice law," and not because plaintiff by it un- dertook to practice law, plaintiff cannot avoid this defense by showing that it \vas not illegal for it to practice law, and that its charter authorized it to practice law "so far as is lawful." Creditors Nat. Clearing House v. Bannwart (Mass.) 1918C-130. C. Contracts for the Suppression of Bidding. 16. Agreement to purchase jointly at auc- tion. An agreement between the plaintiffs and a corporation to buy jointly the fixtures and stock of an insolvent at public sale is not invalid where made for the legitimate purpose of combining the parties', resources and not to chill or suppress bidding. Stack v. Roth Bros. Co. (Wis.) 1918C-741. 17. Such agreement is not unsupported by consideration, as the promises of the parties each to furnish half of the purchase price are performable, concurrent, and mutually binding at the same time. Stack v. Roth Bros. Co. (Wis.) 1918C-742. d. Relief of Parties. 18. Contracts having a tendency to injure public service are in a different class from other gambling contracts regarding any re- lief to be afforded thereunder by the courts. Martin v. Francis (Ivy.) 1918E-289. 19. Recovery back of deposit. Where a candidate deposits money with a third party to secure performance of an agreement with his opponent to appoint him deputy, and di- vide fees upon the latter^ withdrawal of his candidacy, just previous to election, and the stakeholder loans the money to another par- ty after the agreement has been acted upon, the depositor cannot recover the money de- posited. Martin v. Francis (Ky.) 1918E-289. 20. Exception to rule. The plaintiff pur- chased from a patent holder of a crude oil burner an agency contract to sell "family rights" and "agency contracts." The agency contract was a characteristic scheme in the nature of "an endless chain," and void as against public policy. To secure the pur- chase price of the agency contract, the plain- tiff gave the patent holder a deed to some property, the deed being intended to operate as a mortgage. An attaching and judgment creditor of the patentee sought to subject the property to the satisfaction of his claim and judgment against the patent holder. Held, that the fact that the plaintiff, in the original contract, was in equal wrong with the patent holder will not prevent a court of equity from granting plaintiff relief when its refusal to do so would in effect give counte- nance, force and effect to the original illegal contract between the plaintiff and the pat- entee and carry its consequences even further than the contracting parties intended. Say- lor v. Crocker (Kan.) 1918D-473. (Annotated) 4. Performance or Breach. 21. Partial rescission. One cannot repudi- ate part of his entire contract and retain the CONTRACTS. benefit of another part. La Salle Extension University v. Ogburn (X. C.) 1918C-887. 22. Overcharge as ground for repudiation. Any overcharge in statement of account sent defendant does not authorize abandon- ment or repudiation by him of his contract with plaintiff for a course of instruction by correspondence, and refusal to pay anything; but he should pay what is due, and decline to pay the overcharge. La Salle Extension University v. Ogburn (N. C.) 1918C-887. 23. Remedies on breach. Defendant, by repudiating his contract for a course of in- struction by correspondence payable in instalments, and refusing to pay the first instalment, cannot prevent plaintiff perform- ing and recovering the full amount agreed on; especially where the contract provides that, if an instalment is not paid in a cer- tain time after due, the unpaid balance shall become immediately due. La Salle Exten- sion University v. Ogburn (N. C.) 1918C- 887. (Annotated) 5. Building or Working Contracts. a. Construction of Provisions. 24. Severable contract. A contract to drive certain piling, at a stipulated price per pile, to make' certain excavation for a coffer- dam, and to afterwards remove the embank- ment, at a stipulated price per cubic yard, and to provide a pump of sufficient capacity and efficiency to perform the contract, at a stipulated price per day, etc., is not a con- tract of entirety. Parkersburg, etc. Sand Co v. Smith (W. Va.) 1918E-449. b. Performance or Breach. 25. Breach. Where plaintiffs contract with defendant to buy jointly an insolvent's fixtures and stock at public sale, and, after making financial arrangements, which are necessary for them to care for their half of the price, are advised by defendant at the last moment, when they are not able to take care of themselves, that defendant will not perform its part of the agreement and fur- nish its half of the price, plaintiffs sustain damage. Stack v. Roth Bros. Co. (Wis.) 1918C-741. 26. Effect of renunciation by one party. An absolute renunciation of a contract by one of the parties thereto constitutes a breach thereof, and also relieves the other from performance of his promise or cove- nant. Lewis v. West Virginia Pulp, etc. Co. |W. Va.) 1918D-754. 27. Arbitration Effect. The award of the arbitrators, Horstman and Burgess, made pending the execution of plaintiff's contracts, requiring it to remove the coffer- dam embankment to the satisfaction of the government of the United States, omitting the other words of the original contract, re- quiring that work to be done to the satis- faction of defendant also, and the acceptance thereof by the parties, properly construed, did not constitute a modification of that provision of the original contract. Parkers- burg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 28. Destruction of building. Where a building is burned before completed, unless the building contract is mutually abandoned, the contractor must, in the absence of pro- vision to the contrary, stand the loss and re- build to be entitled to any payment; such destruction not preventing performance so as to excuse it under Civ. Code, 1511. Ahl- gren v, Walsh (Cal.) 1918E-751. 29. Within a building contract apportion- ing between owner and contractor the loss in case of destruction by fire or earthquake of the building before completion, varying as the destruction is complete or partial, there is a complete destruction where on one day an earthquake does some injury to it, and on the next day fire started by the earth- quake reaches the building and entirely de- stroys it. Ahlgren v. Walsh (Cal.) 191SE- 751. 30. Under the provision of a building con- tract that, if the work before completion be wholly destroyed by fire, the loss shall be sustained by the owner to the extent that he has paid instalments or that may be due, the contractor is entitled to payment of an in- stalment due at the time of the fire, before reconstructing the building up to the point where such instalment became due. Ahlgren v. Walsh (Cal.) 1918E-751. 31. Architect's certificate. Under the owner's agreement to pay the contractor an instalment when a certain work on the build- ing is finished, provided that, when the in- stalment becomes due, a certificate shall be obtained from the architect, such certificate, in the absence of contrary provision, is neces- sary for the instalment to be payable and right of action thereon to accrue. Ahlgren v. Walsh (Cal.) 1918E-751. 32. Within the provision of a building contract that, if the work before completion be wholly destroyed by fire, then the loss oc- casioned thereby shall be sustained by the owner to the extent that he has paid instal- ments thereon, or that may be due under the fifth clause 'of the contract, and the contrac- tor shall siistain the loss for the uncompleted portion of the work on which he may be en- gaged at the time of the loss, and for which no payment is yet due under said fifth clause, the contractor having before the fire finished a portion of the work, on the finish- ing of which the owner by the fifth clause agreed to pay the contractor an instalment, provided that, when an instalment shall be- come due, a certificate shall be obtained from the architect stating that the instal- ment is due, such instalment is "due" at the time of the fire, though a certificate had not been obtained from the architect; "due" be- ing used in the sense of an instalment earned, unpaid, and owing though a certif- icate had not been obtained to make it pay- able under the fifth clause. Ahlgren v. Walsh (Cal.) 1918E-751 (Annotated) c. Bond of Contractor. 33. Liability of surety. Where contrac- 68 ANN. CAS. DIGEST (15H8C-1918E). tors agree to build a road and to pay "for all labor and material and all other obliga- tions or liabilities incurred in the doing of the said work or performance of any of the things necessary hereunder," and a surety company, for a valuable consideration, guar- antees the performance of the contract, and where the contractors fail to pay the neces- sary and pertinent bills incurred by them in such undertaking, the surety company is lia- ble thereon. Shannon v. Abrams (Kan.) 1918E-502. . 34. Claims covered. In a road-building contract which named the quarry where the materials for the road were to be obtained, the contractors failed to pay the necessary and pertinent accounts for dynamite, for coal consumed in the engine which operated the rock crusher, for lumber, for the rent of the quarry, and for the rent of tools. Held, that the surety company was liable for the payment of these accounts under its surety obligation. Shannon v. Abrams (Kan.) 1918E-502. d. Actions. 35. Recovery on quantum meruit. Where a party to a contract fails to furnish a pumping outfit of the capacity and efficien- cy called for by his contract, he is not en- titled to recover the full price per diem stip- ulated therefor in the contract, but only such sum as the same is reasonably worth to the other party to the contract. Parkers- burg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 36. Pleading. Mutual abandonment of a building contract, as regards reconstruction of the building, after its destruction while incomplete, to be the foundation of a recov- ery by the contractor of an instalment due before the destruction, must be pleaded; if not being enough that it appears in the ev- idence. Ahlgren v. Walsh (Gal.) 1918E-751. CONTRIBUTION. Bar of right by limitations, see LIMITATION OF ACTIONS, 4. Subrogation as against coparties, see SUBBO- GATION, 4. CONTRIBUTORY NEGLIGENCE. See NEGLIGENCE, 4, 5, 10. Of boy injured by contact with broken elec- tric wire, see ELECTRICITY, 17. Of guest in automobile, see AUTOMOBILES, 22, 23. Of passenger, see CABRIEBS OF PASSENGERS. 14. Of person struck by automobile after alight- ing from street car, see AUTOMOBILES, 3, 4. CONVERSATION. Admissibility of entire conversation where part produced in evidence, see ADMIS- SIONS AND DECLARATIONS, 21, 22. CONVERSION. Unauthorized use by bailee as conversion, see BAILMENT, 2. 1. Effect of return of property. In an ac- tion of trover for the conversion of an auto- mobile, evidence of the return of the car may be shown in mitigation of damages, but not in bar of the action. Baxter v. Woodward (Mich.) 1918C-946. 2. Necessity of demand. Where there is an overt act of conversion, no demand by the owner is necessary before bringing action. Baxter v. Woodward (Mich.) 1918O946. 3. Evidence of compromise negotiations is held to be insufficient to prove a settlement of the cause of action for conversion of an automobile. Baxter v. Woodward (Mich.) 1918C-946. 4. Question for jury. In an action of trover for the conversion of an automobile, whether there was a settlement or waiver of the tort is a question of fact. Baxter v Woodward (Mich.) 1918C-946. 5. Measure of damages. The measure of damages for the conversion of an automobile is the value of the car at the time converted with interest thereon. Baxter v. Woodward (Mich.) 1918C-946. CORONERS. Coroner's verdict sent to insurer at its re- quest as part of proofs of death, see LIFE INSURANCE, 13. CORPORATIONS. 1. Matters Relating to Corporate Existence, 69. 2. Duties and Liabilities, 69. 3. Officers and Agents: a. Liability: (1) To Third Persons, 69. (2) Equitable Relief to Stockhold- ers, 70. b. Duties, Powers and Liabilities of Di- rectors, 70. 4. Stock and Stockholders: a. Subscription to Stock, 70. b. Nature of Ownership, 71. c. Duplication of Lost Certificate, 71. d. Rights and Powers of Stockholders: (1) Management of Corporation, 71. (2) Right to Vote, 72. (3) Voting Trusts, 72. (4) Actions, 72. 5. Insolvency and Receivers, 72. 6. Foreign Corporations: a. Rights in Respect to Real Estate, 72. CORPORATIONS. 69 to. Statutory Regulation: (1) Imposition of License Tax, 72. (2) What Constitutes Doing Busi ness, 72. c. Actions by and against Foreign Cor- porations, 73. See BENEFICIAL ASSOCIATIONS ; BUILDING AND LOAN ASSOCIATIONS; CARRIER*; INSUB- ANCE; LIGHTING DISTBICTS; MUNICIPAL COBPOBATIONS ; EAILBOADS ; STREET RAIL- WAYS; TELEGBAPHS AND TELEPHONES; WATEB COMPANIES AND WATEBWOBKS. Action against corporate officers on lost note, see LOST INSTRUMENTS, 1. Assignment of statutory liability of corporate officer, see ASSIGNMENTS, 2. Delay in enforcing subscription to corporate stock as laches, see LACHES, 2, 3. Dissolution of corporation as abating pend- ing suit against it, see ACTIONS AND PBO- CEEDINGS, 1. Foreclosure of pledge of corporate stock, see PLEDGE, 4. Liability of corporation for slanderous words of agent, see LIBEL AND SLANDEB, 29, 30. Parol evidence as to liability of party to pool contract, see EVIDENCE, 31. Parol evidence to vary stock subscription contract, see EVIDENCE, 28. Partial invalidity of contract between cor- porate stockholders, see CONTBAOTS, 13, 14. Pledge of corporate stock, see PLEDGE, 3. Stock dividends as part of corpus of trust estate or of income, see TBUSTS AND TBUSTEES, 17. Use of money of corporation for election ex- penses, see ELECTIONS, 19. What constitutes practice of law by corpora- tion, see ATTOBNEYS, 1. 1. Matters Relating to Corporate Existence. 1. Prerequisites to existence. The stat- utory requirements provided by section 8632 et seq., General Code, for the creation of a corporation are mandatory and must be com- plied with before the corporation can be in existence. Parkside Cemetery Assoc. v. Cleveland, etc. Traction Co. (Ohio) 1918C- 10.51. 2. Change of name Effect on prior guar- anty. Where the name of a corporation, the principal in a continuing guaranty contract, is changed, but the same president continues in charge, and guarantors continue as stock- holders, directors, and officers, and the stock- holders' vote for the change was unanimous, the change does not relieve the guarantors from their liability. Scovill Mfg. Co. v. Cas- sidy (111.) 1918E-602. 3. Estoppel to deny corporate existence. Where parties contracted and dealt with each other as corporations, although the name of plaintiff's assignor had not been changed, as assumed, each is estopped to deny the corporate capacity of the other, and defendant's contention that the contract was not assignable, because it relied on the skill of one who signed as president of plaintiffs assignor, cannot be sustained. Northwest Auto Co. v. Harmon (U. S.) 1918E-461. 4. A dissolved corporation which takes an appeal from a decree against it and gives bond for its successful prosecution is not in a position to assert that it is nonexistent and incapable of maintaining and defending pending suits. Pease v. Rathbun-Jones En- gineering Co. (U. S.) 1918C-1147. 5. Dissolution at instance of minority stockholder. It is the general rule that courts are without authority to dissolve a corporation at the suit of a minority stock- holder unless such authority has been con- ferred by statute. Different courts recognize various exceptions to this rule; but the facts do not bring this case within such exceptions and do not justify the dissolution of the cor- poration. Thwing v. McDonald (Minn.) 1918E-420. (Annotated) 2. Duties and Liabilities. 6. Torts of Agents. A corporation is lia- ble for the torts of its agents, within the scope of their employment, and in further- ance of the corporate business; and this in- cludes libel. Morse v. Modern Woodmen of America (Wis.) 1918D-480. (Annotated) 3. Officers and Agents, a. Liability. ( (1) To Third Persons. 7. Effect of change of officers. Under Acts 1909, p. 643, requiring corporation offi- cers to make statements to the county clerk of financial conditions of the corporation and making them civilly and criminally liable for debts on failure to do so, the duty imposed is official and ceases when the individual ceases to be an officer, and the civil liability of such officers includes only debts contract- ed while they are in office. Breitzke v. Bank of Grand Prairie (Ark.) 1918D-792. 8. Under such statute, new officers must acquaint themselves with corporation affairs, and, if the required report has not been made, must make it within a reasonable time, and if they do not the civil and crim- inal liability attaches to them, and the out- going officers continue to be liable only for debts of their administration, and not for those contracted after their term. Breitzke v. Bank of Grand Prairie (Ark.) 1918D-792. (Annotated) 9. Where newly elected officers of a cor- poration failed for one year to file the report required by Acts 1909, p. 643, which makes them liable for the corporation debts and criminally liable for failure to report within a reasonable time, they cannot escape liabil- ity on the ground that the debt was that contracted under former officers, where it was represented by an overdraft which was frequently during their 'terms reduced to practically nothing and later increased. Breitzke v. Bank of Grand Prairie (Ark.) 1918D-792. (Annotated) 10. Estoppel to enforce liability. Al- though corporation officers on giving their 70 AXX. CAS. DIGEST (191SC-1'01E). note for a corporation debt secured the prom- ise of the payee that it would not hold them personally liable thereon, the payee is not estopped 'to claim the statutory liability im- posed by Art- I'.tOO. p. 643, lor failure to make required financial reports. Breitzke v. Bank of Grand Prairie (Ark.) 1918D-7U2. 11. Evidence. In an action to enforce the liability of corporate officers for dfbt> in- curred by the corporation with their consent, and with knowledge that less than half the capital stock had been subscribed, under the provision therefor of St. 1913, 1774n, the evidence is held to be sufficient to support a finding that half of the capital stock remained so unsubscribed. Weston v. Dahl (Wis.) 1918CH&22. 12. In such action it was no objection to the introduction in evidence of a copy certi- fied by the secretary of state of the amend- ment of the articles of incorporation increas- ing the capital stock, that the certificate of the register of deeds attached thereto was not properly identified, since such register's certificate was part of the record of the sec- retary of state under the provision of St. 1913, 1774n, requiring the filing of such register's certificate with the secretary of state. Weston v. Dahl (Wis.) 1918C-922. 13. In determining in such action the amount of capital stock actually subscribed, the court properly excluded oral promises to take stock, since they were not subscriptions within the meaning of the statute. Weston v. Dahl (Wis.) 1918C-922. 14. Such oral promises are further inad- missible for such purpose, since being for 'more than $50 worth of stock they are unen- forceable under St. 1913, 2308, regulating contracts for the sale of goods and things in action. Weston v. Dahl (Wis.) 1918C-922. (2) Equitable Relief to Stockholders. 15. Where the control of a corporation is involved, the remedy at law for damages for the improper. sale of stock is inadequate, and where fraud on the part of those managing the company as against the rights of the stockholders is averred, a court of equity lias jurisdiction to inquire into the transaction, and make such decree as the circumstances may warrant. Glenn v. Kittanning Brewing Co. (Pa.) 1918D-770. 16. Conditions precedent. A stockholder cannot generally proceed as an individual to redress a wrong done to the corporation without a formal demand upon and a refusal by the corporation to bring proper action, but stockholders are not required to do a vain thing, and where the w r rongdoers are the ma- jority of the board of directors it is not rea- sonable to suppose that a demand upon them would be effective, and stockholders may in- stitute proceedings in their own name with- out first demanding action by the corpora- tion's officers. Glenn v. Kittanning Brewing Co. (Pa.) 1918D-770. 17. Evidence. On a bill in equity by a stockholder of a brewing company in behalf of himself and others to enjoin a director from voting or transferring certain stock, the evidence is held to sustain a finding that the issue of stock had been made to gain control of the corporation. Glenn v. Kittanning Brewing Co. (Pa.) 1918D-770. b. Duties, Powers and Liabilities of Direc- tors. 18. By Gen. Corp. Law, 34 (McKinney's Consol. Laws, book 22, p. 174), the affairs of every corporation shall be managed by its board of directors, subject, by section 11, subd. 5 (McKinney's Consol. Laws, book 22, p. 76), and Stock Corp. Laws, 30 (McKin- ney's Consol. Laws, book 58, p. 113). to the valid by-laws adopted by the stockholders. Hanson v. Curtis (X. Y.) 1918E-247. 19. Delegation of powers. The directors of a corporation convened as a board are the primary possessors of all the powers con- ferred by the charter, and may delegate to agents of their own appointment the per- formance of any acts which they themselves can perform. Manson v. Curtis (X. Y.) 1918E-247. 20. Agreement to give control over direc- tors. Corporations being the creatures of the state, bound to comply with its exactions and regulations, an agreement between two corporate stockholders, the fundamental and dominant purpose of which is to provide a passive president of the board of directors and passive directors, subservient to the will of one of the stockholders in the management of the corporation, is illegal and void, and its violation is not a basis for a cause of action. Manson v. Curtis (X. Y.) 1918E-247. (Annotated) 21. Fiduciary relation to stockholders. The directors of a corporation stand in the position of trustees for the stockholders, and while stock owned by director is his individ- ual property, w r hich he may deal with as he sees fit, yet when he acts officially he acts as representatives of others, and cannot take an advantage of his position for his personal profit to the detriment of the stockholders. Glenn v. Kittanning Brewing Co. (Pa.) 1918D-770. (Annotated) 22. As to new issue of stock. The direc- tors of a corporation must give its stockhold- ers notice of a new issue for stock and an op- portunity to subscribe for stock in proportion to their present holdings, although such issue may be long after the corporation's business was begun, and if they fail to give such no- tice and purchase the stock themselves in or- der to gain control of the corporation, the is- sue may be set aside at the instance of a stockholder. Glenn v. Kittanning Brewing Co. (Pa.) 1918D-770. . (Annotated) 4. Stock and Stockholders, a. Subscription to Stock. 23. Validity of agreement to repurchase. A contract whereby the seller of corporate stock agreed to repurchase it at any time up- on demand, should the buyer become dissatis- fied, was legal and binding, violating no stat- ute, and not being against public policy, and COEPORATIOXS. one which the courts cannot unmake mere- ly because it may have been unwisely made. Paulson v. Weeks (Ore.) 1918D-741. (Annotated) 24. Construction of contract to repurchase. A contract whereby the seller of corporate stock agrees to repurchase on demand, if the buyer is dissatisfied, is not a conditional con- tract for the sale or return of the stock, but embraces a completed sale, with an option in the buyer to rescind. Paulson v. Weeks (Ore.) 1918D-741. (Annotated) 25. A contract for the sale of stock of a mining company, giving the buyer the option to rescind if he becomes dissatisfied with his purchase "at any time thereafter," sets a reasonable time, and does not give unlimited time, though primarily "any" implies unlim- ited choice as to the particular unit, num- ber or quantity, and generally signifies an indeterminate unit or number of units out of many or all, as "any time," employed in such agreements, means reasonable time. Paulson v. Weeks (Ore.) 1918D-741. (Annotated) 26. Under such contract if the buyer be- comes dissatisfied, he has the right to rescind, when he becomes honestly and in good faith dissatisfied. Paulson v. Weeks (Ore.) 1918D- 741. (Annotated) 27. Ordinarily the question of what is a reasonable time for the exercise of such an option must be submitted to the jury. Paul- son v. Weeks (Ore.) 1918D-741. (Annotated) 28. The buyer of stock in a mining com- pany, who waits for more than seven years from the date of the contract of sale, more than five years from the completion of the sale, and more than three years from the time he becomes dissatisfied, before exercis- ing his option to demand rescission, fails to exercise such option within a reasonable time. Paulson v. Weeks (Ore.) 1918D-741. (Annotated) 29. Liability on unpaid subscription. A corporation's right to recover in an action on the unpaid subscriptions of certain stockhold- ers will not be affected by the fact that an- other stockholder is similarly indebted. Bergman v. Evans (Wash.) 1918C-848. 30. A showing that an agreement was made with one of the defendants, subscribing stockholders, that no assessment would ever be levied on his unpaid stock and that he would never be required to pay more than the amount already paid, in the absence of a showing that the creditors dealt with the corporation with notice of the agreement, is not such an element of fraud as will serve as a defense against the liability of the other defendants on their subscriptions. Bergman v. Evans (Wash.) 1918C-848. 31. Necessity of prior call. Under Bal. & Rem. Code, 3694, requiring corporate trustees to make a call for unpaid subscrip- tions on proper notice, and a subscription contract providing that the .subscriptions should be payable on call of twenty days' no- tice issued by the board of directors, an ac- tion in equity by an injured stockholder, who has paid for his stock in full, against delin- quent stockholders and controlling directors for their refusal to call for unpaid subscrip- tions due from themselves, without alleging that any call had been made by the directors, is itself equivalent to a notice of call; and a court of equity has power to make the call on such showing. Bergman v. Evans > (Wash.) 1918C-848. 32. Such cause, on appeal, is to be tried de novo and the complaint deemed to be amend- ed to conform to the proofs. Bergman v. Evans (Wash.) 1918C-848. 33. Extent of liability. In an action by a paid-up stockholder in a going concern to re- cover unpaid stock subscriptions as part of the concern's assets, the amount collectible is not limited to so much pro rata as may be re- quired to pay creditors and wind up the af- fairs of the concern, if insolvent. Bergman v. Evans (Wash.) 1918C-848. 34. Interest on such subscriptions is prop- erly allowed from the date when the defend- ants were . served Avith written demand by plaintiff to make a call, under the rule that interest is due only from the date the sub- scriber is placed in default. Bergman v. Evans (Wash) 1918C-848. b. Nature of Ownership. 35. Negotiability. Though neither in form nor character is a certificate of cor- porate stock negotiable paper, it nearly ap- proximates it where indorsed in blank by the owner with power to transfer to anyone who may obtain possession as holder. Will v. George Wiedemann Brewing Co. (Ky.) 1918E-62. c. Duplication of Lost Certificate. 36. Indemnity to corporation. Where cer- tificates of corporate stock are pledged with a bank as collateral for a loan, being en- dorsed by the owner with blank power of at- torney, authorizing the holder to transfer or have them transferred on the books of the company, and such certificates disappear from the bank, being lost or stolen, the cor- poration, though it continues to pay divi- dends to the owner of the stock and her heirs, cannot be required by her administrator to is- sue new certificates until it is given a bond to indemnify it against loss, possible court costs, and attorney's fees, in case the original certificates come to light. Will v. George Wiedemann Brewing Co. (Ky.) 1918E-62. (Annotated) c. Rights and Powers of Stockholders. (1) Management of Corporation. 37. Generally, corporate stockholders can- not act in relation to ordinary business of the corporation, and cannot control the di- rectors in the exercise of the judgment vest- ed in them by virtue of their office. Manson v. Curtis (]N. Y.) 1918E-247. 38. Corporate stockholders do not confer and cannot revoke the powers of the board of directors, which are derivative only in the 72 ANN. CAS. DIGEST (1918C-1918E). sense of being received from the state in the act of incorporation. Manson v. Curtis (N. Y.) 1918E-247. (2) Right to Vote. 39. Proxy. A "proxy," as a proxy to vote shares given by one corporate stockholder to another, is an authority, by one having the right to do a certain thing, to another to do it. Manson v. Curtis (N. Y.) 1918E-247. ft.**> ;k (3) Voting Trusts. 40. Definition. A "voting trust agree- ment" accumulates in the hands of a person or persons corporate shares of several own- ers in trust for the purpose of voting them, in order, through the selection and election of directors, to control the corporate busi- ness and affairs. Manson v. Curtis (N. Y.) 1918E-247. 41. Validity. Agreements between cor- porate stockholders, a minority in number but owning the majority of stock, made on sufficient consideration, to unite upon a course of corporate policy or action, or upon the officer whom they will elect, are valid and binding, if they do not contravene any ex- press charter or statutory provisions, or contemplate fraud, oppression, or wrong against other stockholders, or other illegal object. Manson v. Curtis (N. Y.) 1918E-247. (Annotated) (4) Actions. 42. Protection of minority stockholder. Where minority stockholders are being de- prived of their property rights by the unlaw- ful acts of the majority, a court of equity will intervene and afford them such relief as may be necessary to adequately protect such property rights. Thwing v. McDonald (Minn.) 1918E-420. 5. Insolvency and Receivers. 43. Priority of claim for wages. Labor Law (Consol. Laws, c. 31) 9 (McKinney's Con sol. Laws, Book 30, p. 37), providing that, upon the appointment of a receiver of a part- nership or of a corporation organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of employees shall be preferred to every other debt or claim, does not apply to an insolvent foreign corporation. Riverside Contracting Co v. New York (N. Y.) 1918C- 1075. 44. Labor Law, 9 (McKinney's Consol. Laws, Book 30, p. 37), providing for the pay- ment of wages by the receiver of a partner- ship or domestic corporation in preference to other debts and claims, relates only to the distribution of the assets of an insolvent cor- poration, and would not make such wages payable out of assets which had been as- signed before insolvency. Riverside Contract- ing Co. v. New York (N. Y.) 1918C-1075. 6. Foreign Corporations. a. Rights in Respect to Real Estate. 45. A foreign trust comapny in acepting a trust and executing in New York the trust deed on land in Arizona, does not violate any law of Arizona. Martin v. Bankers' Trust Co. (Ariz.) 1918E-1240. (Annotated) b. Statutory Regulation. (1) Imposition of License Tax. 46. St. Mass. 1909, c. 490, pt. 3, 56, de- clares that every foreign corporation shall in each year at the time of filing its annual cer- tificate of condition pay to the treasurer and receiver general, for the use of the common- wealth, an excise tax of one-fiftieth of one per cent of the par value of its authorized capital stock, but the amount shall not in any one year exceed the sum of $2,000. St. Mass. 1914, c. 724, 1, declares that every foreign corporation subject to the tax im- posed by the preceding act shall, at the time of filing its annual certificate of condition, pay to the treasurer and receiver general, in addition to the tax imposed, an excise tax of one one-hundredth of one per cent of the par value of its authorized capital stock in ex- cess of $10,000,000. The two acts were con- strued by the Massachusetts courts as part of one general taxing scheme; the latter remov- ing the limitation of the first. It is held that the tax as assessed against a foreign corpora- tion, maintaining an office in the state of Massachusetts and doing therein an intra- state and an interstate business is invalid, as a direct burden on interstate commerce, In- ternational Paper Co. v. Commonwealth of Massachusetts (U. S.) 1918C-617. (Annotated) (2) What Constitutes Doing Business. 47. A single transaction does not consti- tute "carrying on business" within Civ. Code 1901, pars. 909, 911, forbidding foreign cor- porations to carry on business in the state except on compliance with certain requisites. Martin v. Bankers' Trust Co. (Ariz.) 1918E- 1240. (Annotated) 48. The prosecution of a suit in the state is not "carrying on business" within Civ. Code 1901, carrying on any business, enter- prise, or occupation in the state until it has filed a certified copy of its articles of incor- poration or charter and the appointment of an agent, and has made publication of its ar- ticles of incorporation and proof thereof. Martin v. Bankers' Trust Co. (Ariz.) 191 8E- 1240. (Annotated) 49. A foreign tobacco corporation which sold its business within a state pursuant to a trust dissolution decree is held not to be "doing business" therein so as to subject it; to service of process, although it owned stock in local subsidiary companies and advertised its goods and sent soliciting agents within the state. People's Tobacco Co. v. American Tobacco Co. (U. S.) 1918C-537. CORPUS DELICTI COURTS. 73 c. Actions by and against Foreign Corpora- tions. 50. Substitution of parties. In an action by a foreign corporation as trustee to fore- close a deed of trust, bondholders secured by the deed of trust being the real parties in in- terest, even if the plaintiff is disqualified to act for failure to comply with the require- ments relating to foreign corporations, the bondholders will be substituted as plaintiffs and judgment entered according to their rights. Martin v. Bankers' Trust Co. (Ariz.) 191SE-1240. 51. Service of process. To subject a for- eign corporation to service of process, it must be doing business of such a nature and char- acter as to warrant the inference that it has subjected itself to the local jurisdiction and is, by its duty authorized officers or agents, present within the state or district. Peo- ple's Tobacco Co. v. American Tobacco Co. (U. S.) 1918C-537. 52. Revocation of designation. Where a foreign corporation conveys its branch with- in a state pursuant to a trust dissolution de- cree, its agent therein resigns, and his power of attorney is revoked by filing an instru- ment in the secretary of state's office, his agency to accept service for the foreign cor- poration ceases. People's Tobacco Co. v. American Tobacco Co. (U. S.) 1918C-537. 53. An instrument revoking a power of at- torney to accept service for a foreign cor- poration's vice-president and attested by its seal is not ineffectual because not formally sanctioned by the directors, where the vice- president apparently had the necessary au- thority. People's Tobacco Co. v. American Tobacco Co. (U S.) 1918C-537. CORPUS DELICTI. In prosecution for illegal sale of liquor, see INTOXICATING LIQUORS, 15, 16. Cure of defects in proof of corpus delicti, see APPEAL AND EBROB, 67. Proof in homicide case, see HOMICIDE, 4. CORRESPONDENCE SCHOOLS. Construction of contract for course, see CON- TRACTS, 11. CORROBORATION. See WITNESSES, 15-18. Of accomplices in prosecution for homicide, see HOMICIDE, 11. Of prosecutrix in prosecution for seduction, see SEDUCTION, 3. CORRUPT PRACTICES ACTS. Charging illegal use of money by candidate, see LIBEL AND SLANDER, *5, 7-9. Use of money of corporation for election ex- penses, see ELECTIONS, 19. COSTS. On appeal, see APPEAL AND ERROR, 121-124. Allowance to executor in proceeding to pro- bate will, see WILLS, 23. Exclusion of costs in ^determining jurisdiction on appeal, see APPEA!L AND ERROR, 5. Taxation of fees of guardian ad litem, see INFANTS, 5. 1. Security. In a suit before a justice of the peace, where, upon defendant's motion for security for costs one of plaintiff's coun- sel stated that he would be responsible for costs, and no further action was taken, and judgment was entered for plaintiff, the su- preme court on appeal from a decree enjoin- ing execution on the judgment, will presume that the statement was accepted by defend- ant. Welch v. Hannie (Miss.) 1918C-325. 2. It was the duty of defendant, if he so desired, to have the court pass upon his mo- tion for security for costs, and his failure to do so waives his rights. Welch v. Hannie (Miss.) 1918C-325. 3. Cost bond. Upon a motion made for a cost bond, under the provisions of section 2892, Comp. Laws 1897, it is discretionary with the court as to whether plaintiff shall be ruled to give such bond. Roswell v. Bate- man (N. M.) 1918D-426. . COUNTIES. Assignment of money due under building con- tract with county, see ASSIGNMENTS, 4. County fence as necessary expense for which tax can be levied by county, see TAXA- TION, 4. Validity of law providing for construction of county fence, see FENCES, 1. COUNTY ATTORNEY. Reference by county attorney to race of ac- cused, see ARGUMENT AND CONDUCT OF COUNSEL, 2. COURTS. Effect of uncompleted transfer to United States by grantee from state as affecting jurisdiction of suit to cancel deed, see PUBLIC LANDS, 12. Injunction against prosecution of suit in state court because of pendency of action in federal court, see INJUNCTION, 4. Judicial review of apportionment of damages and assessment of benefits for public improvements, see TAXATION, 51. Judicial review of discipline of member of religious society, see RELIGIOUS SOCIE- TIES, 3-6. Jurisdiction and powers of appellate courts, see APPEAL AXD ERROR, 2-8. Jurisdiction of court of bankruptcy, see BANKRUPTCY, 5. 74 . CAS. DIGEST (191SC-1918E). Jurisdiction of petition by judgment credi- tor of one insured by contract of casual- ty insurance to apply insurance money to satisfaction of judgment, see INSURANCE, 43, 44. Jurisdiction of statue court to foreclose mort- gage as affected by subsequent proceed- ings in bankruptcy, see BANKRUPTCY, 3. Justice's court as court, see JUDGES, 1. Original jurisdiction of supreme court to hear claims against state as relieving claimant from presenting claim to state board of examiners, see STATES, 4. Ousting jurisdiction of courts by contract to arbitrate, see CONFLICT OF LAWS, 1. Power of court of equity to change or modi- fy trust, see TRUSTS AND TBUSTEES, 35- 38. Power of court to order bill of particulars in criminal cases, see INDICTMENTS AND IN- FORMATIONS, 12. Power to punish attorneys for misconduct, see ATTORNEYS, 18. Presumption as to finding of intermediate court, see APPEAL AND EBROB, 69. Proceedings and jurisdiction in juvenile courts, see INFANTS, 8-15. Review of findings of industrial board, see MASTEB AND SERVANT, 26. Review of findings of trial court, see APPEAL AND EBBOB, 49-50. Review of firfdings or judgment of intermedi- ate courts, see APPEAL AND ERBOB, 53-57. Review of judgment of voters, see PUBLIC OFFICEBS, 7. Weight of state decision on constitutionali- ty of statute, see CONSTITUTIONAL LAW, 24, 25. 1. Legislative power to create. The legis- lature has no authority to create a city court, even in a parish ward containing a city of more than 5,000 inhabitants, except in the place and stead of the justice of the peace court, which shall be thereby abolished. Therefore section 40 of Act No. 2 of 1916, attempting to create the city court of the city of Gretna with jurisdiction concurrent with that of the justice of the peace for a period of four years, violates articles 84 and 96 of the constitution. Gretna v. Bailey (La.) 1918E-566. 2. Jurisdiction Rights tinder patent. As- suming that a bill to enforce a price main- tenance contract' asserted rights under the patent law, a federal district court had juris- diction to determine whether the suit arose under such law, where the question had not then been conclusively settled in the negative. Boston Store v. American Graphophone Co, (U. S.) 1918C-447. 3. Rules of practice. Under P. S. 1346, providing that superior judges shall make all necessary rules for practice in county and chancery courts, which shall be uniform, a rule made by the superior judges has the force of law, and must be applied to all cases coming within it. Davis v. Dunn (Vt.) 1918D-994. 4. A rule of a county court as to practice does not govern in the face of a general rule made by the superior judges. Davis v. Dunn (Vt.) 1918D-994. 5. Federal decision binding state court. The construction of a federal statute is for the federal courts, and the state court must follow the rule which they announce. State v. Hyde (Ore.) 1918E-688. 6. Decision of state court. On a question of general law involved in an admiralty suit brought in the federal district court for New York, the decisions of the highest state court are not binding. Aktieselskabet Korn-og etc. v. Rederiakuebolaget (U. S.) 1918E-491. 7. Decision of higher court in lower Pre- vious decision explained. The decisions in Southern Ry. Co. v. Covenia, 100 Ga. 46, 29 S. E. 219, 40 LJR.A. 253, 62 Am. St. Rep. 312, and Atlanta Consolidated St. Ry. Co. v. Arnold, 100 Ga. 566, 28 S. E. 224, rend- ered by a majority of the supreme court, were not in terms modified by the ruling in James v. Central of Georgia Ry. Co. 138 Ga. 415, 75 S. E. 431, 41 L.R.A.(N.S.) 795, Ann. Cas. 1913D 468; nor was there such necessary inconsistency between the two former rulings and that last mentioned that they were by force thereof modified, but they remain as decisions of a majority of the supreme court, and therefore as precedents to be followed by the court of appeals. Holmes v. Southern R. Co. (Ga.) 1918D-1182. 8. Dictum, The expression of opinion up- on a point in a case deliberately passed upon by the court should be held as judicial dictum rather than mere obiter. Scovill -Mfg. Co. v. Cassidy (111.) 1918E-602. COVENANTS. See DEEDS, 8-12. Covenant by tenant to insure, see LANDLORD AND TENANT, 3. CREDIT INSURANCE. See INSURANCE, 45-47. CRIMES. See CRIMINAL LAW. Charging commission of crime as libel, see LIBEL AND SLANDER, 5. CRIMINAL LAW. 1. Criminal Statutes, 75. 2. Parties to Crime, 75. 3. Rights of Accused: a. Right to Counsel before Pleading, 75. b. Right to Be Present at Trial, 75. 4. Election between Counts, 75. 5. Waiver of Indictment and Jury, 75. 6. Admissibility and Sufficiency of Evidence, 75. CRIMINAL LAW. 75 See ASSAULT; BAIL: CONSPIRACY; DYING DECLARATIONS; FORMER JEOPARDY; HOM- ICIDE; INTOXICATING LIQUORS; SEDUC- TION. Capacity of infant to commit crime, see IN- FANTS, 7. Continuance, see TBIAL, 1. Crimes incidental to operation of automo- biles, see AUTOMOBILES, 25, 26. Cross examination of accused, see WITNESSES, 11. Injunction against prosecution of criminal suits, see INJUNCTIONS, 10-13, 18. Leading questions, see WITNESSES, 8. Order of proof, see TBIAX, 2. Remarks of judge, see TBIAL, 6. Verdict in criminal cases, see VEBDICT, 2-4, 6, 7. 1. Criminal Statutes. 1. Effect of subsequent abrogation of law. One charged with, violation of Local Op- tion Law (Laws 1907, p. 297) and with previous conviction under the same act can- not plead, regarding former conviction, that during a period between that conviction and the alleged offense the law was not in force in that territory, since the vote did not re- peal the law, and, if it did, such repeal would not be a remission under Rev. St. 1874, c. 131, 4, providing that no new law shall be construed to repeal a former one as to an of- fense committed or penalty or punishment incurred under the former law. People v. Brown (111.) 1918D-772. 2. Parties to Crime. 2. Accomplices. A witness, who testified that, after accused struck deceased with an iron bar, he himself stabbed him, is an ac- complice. McCue v. State (Tex.) 1918C-674. 3. Rights of Accused, a. Right to Counsel before Pleading. 3. A person accused of crime is not en- titled to the benefit of counsel to advise him as to whether or not he shall confess, but only for defense, and when the record in a criminal case does not disclose whether the defendant was of ability to procure counsel or whether he requested that counsel be as- signed to him, it will be assumed that he failed to invoke the privilege. State v. Heyer (X. J.) 1918D-284. (Annotated) b. Right to Be Present at Trial. 4. If defendant in a criminal case volun- tarily absents himself from the courtroom during the trial, it is the duty of accused or his counsel to inform the court of his ab- sence, so that the court, may then correct the situation. Thomas v. State (Miss.) 1918E-371. (Annotated) 5. Waiver. There is no difference in value or ^acredness of accused's right to be present on the trial, whether it is granted by consti- tution, statute, or common law, and it may lio waived in any event. Thomas v. State (Miss.) 1918E-371. (Annotated) 6. Code 1906, 1495 (Hemingway's Code, 1253), authorizing accused to waive right to be present at any stage of trial at the dis- cretion of the court, if he is in custody and consents, does not violate Const. 1890, 26, giving the accused a right to be heard, and is valid. Thomas v. State (Miss.) 1918E- 371. (Annotated) 7. Such statute merely gives the accused an additional privilege of waiving presence. Thomas v. State (Miss.) 1918E-371. (Annotated) 8. Under such statute, the accused may waive presence, even in a capital case. Thomas v. State (Miss.) 1918E-371. (Annotated) 9. Since such statute provides that waiver shall be at the discretion of the court, if it appears that the accused did not receive a fair and impartial trial, a new trial will be granted, although failure to secure a fair and impartial trial was on account of ac- cused's waiver of presence. Thomas v. State (Miss.) 1918E-371. (Annotated) 10. Under siich statute, where one accused of murder goes from the courtroom without the knowledge of the judge or the attorneys, but in custody of an officer, for a few min- utes, and makes no objection at any time to the progress of the trial in his absence, he waives his presence. Thomas v. State (Miss.) 1918E-371. (Annotated) 11. Reception of verdict. A verdict in a prosecution for violation of the Local Op- tion Law may- be rendered in the absence of accused and his attorney. People v. Brown (111.) 1918D-772. 4. Election between Counts. 12. An unlawful act relied on by the state as the basis for the charge of manslaughter may be made unlawful by more than one statute. In such case it is error to compel the state to elect upon which statute it re- lies for a conviction. State v. Schaeffer (Ohio) 1918E-1137. 5. Waiver of Indictment and Jury. 13. Order for trial. When a person who is charged with an offense triable before the court of quarter sessions waives indictment and trial by jury and requests to be tried immediately before the court, it is not neces- sary for the judge to sign an order in writ- ing for the trial of the accused. State v. Heyer (N. J.) 1918D-284. 6. Admissibility and Sufficiency of Evidence. 14. Rebutting proof of alibi. Where the defense of alibi was that accused spent the entire day and night of the killing in his father's home, testimony that a witness heard accused on the night of the crime while lie was in another room of an immoral re- sort is admissible. McCue v. State (Tex.) 1918C-674. 15. Where accused offered evidence to show that he was at home on the day and night of the killing, testimony that accused was seen drinking with deceased on the evening 76 AM. CAS. DIGEST (1918C-1918E). of the murder is admissible. McCue v. State (Tex.) 1918O-674. 16. Testimony that a witness saw accused downtown on the afternoon of the murder and saw him later that evening is also ad- missible. McCue v. State (Tex.) 1918C-674. 17. Where accused claims that he spent the entire day and night of the killing in his father's home, testimony in support of an accomplice, who claimed to have met accused in an immoral resort, that on the night of the killing the accomplice and accused visited the resort, where they removed their blood- stained clothing and spent the rest of the night smoking hop. is admissible. McCue v. State (Tex.) 1918C-674. 18. Where accused claims that on the day of the killing he had remained in his father's house, and there was evidence tending to show that he had spent that night in an immoral resort, testimony that, some days after, hs wrrs arrested when leaving such resort, is admissible. McCue v. State (Tex.) 1918C-674. 19. Where accused claims to have been in his father's house on the day and evening of the homicide, testimony that a witness saw him on the afternoon of the killing in a saloon drinking with another person is ad- missible. McCue v. State (Tex.) 1918C-674. 20. Testimony that the companion of a former witness saw two men drinking as de- tailed by such witness, though he did not know and could not recognize accused, as the other witness had, is* admissible in cor- roboration. McCue v. State (Tex.) 1918C- 674. 21. Evidence incidentally discrediting ac- cused. In a prosecution for homicide, the fact that evidence of accused's visits to sa- loons and the lowest of dives may necessarily have a prejudicial effect does not render such testimony inadmissible, where it is vitally connected with the evidence to show accused's guilt. McCue v. State (Tex.) 1918C-674. CROPS. Value of growing crops as included in dam- ages for taking of land, see EMINENT DOMAIN, 8, 12. CROSS-EXAMINATION. See WITNESSES, 10, 11. CROSSINGS. Liability for injuries to persons at railroad crossings, see RAILROADS, 14-20. Liability of owner of automobile for injury at railroad crossing to person riding in automobile, see AUTOMOBILES, 16, 17. Negligence of railroad as excusing negligence of street railroad for injury to passen- ger of latter, see CARRIERS OF PASSEN- GERS, 9. Width to be maintained at railroad crossings, sec RAILROADS. 5. CUMULATIVE EVIDENCE. Newly discovered evidence of cumulative nature as ground for new trial, see NEW TRIAL, 3, 4. CURRENCY ACT. See BANKS AND BANKING, 1-3. CUSTOMER. Injury by fall down elevator shaft, see ELE- VATORS, 2, 6. DAMAGES. See AGENCY, 10; CONVERSION, 5; DEATH BY WRONGFUL ACT, 20, 21. For refusal of seller to deliver goods, see SALES, 6. For wrongful issuance of injunction, see IN- JUNCTIONS, 21. In actions against carriers of goods, see CAR- RIERS OF GOODS, 20-25. In actions, for delay in delivery or failure to deliver telegraph messages, see TELE- GRAPHS AND TELEPHONES, 4, 7-9. In actions for libel or slander, see LIBEL AND SLANDER, 65-70. Instruction as to mitigation of damages in action for libel, see LIBEL AND SLANDER, 63, 64. Measure of damages for breach of warranty of germination of seeds, see WARRANTY, 4. On breach of automobile sales agency con- tract, see DAMAGES, 10. Review of question of damages, see APPEAL AND ERROR, 48, 56, 57. 1. Mitigation of damages. In an action for personal injury, the defendant cannot show, either as a bar to the action or in reduction to the damages, that the injured person received, or was entitled to receive, compensation for his injury in form of insur- ance or otherwise. Ridgeway v. Sayre Electric Co. (Pa.) 1918D-1. 2. Elements Humiliation from disfigure- ment. Humiliation or mortification to arise in the future on account of disfigurement of person is a proper element of damage in an action for personal injury. Patterson v. Blatti (Minn.) 1918D-63. (Annotated) 3. Measure of damages Action for tort. This court has committed itself to the doc- trine that the rules governing the assess- ment of damages are the same in tort as in contract, except where a tort is committed under such circumstances as to warrant the allowance of exemplary damages. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 4. Evidence. In suit for damages for mis- representing the acreage of land leased, it is error to exclude from the consideration of the jury evidence of items of damage suf- fered by plaintiffs making up the necessary and reasonable expenditures incurred by DEAD BODY DEATH BY WRONGFUL ACT. 77 them in preparing to cultivate the land, since the jury should have such information, coupled with other proof, as will enable them to determine the extent of .the damage, if they find certain facts favorably to plaintiff. McXeer v. Xorfleet (Miss.) 1918E-436. 5. Duty to permit remittitur. Under Ver- non's Sayles' Ann. Civ. St. 1914, art. 1631, providing that it shall be the duty of a court of civil appeals, when of opinion that the verdict is excessive, to indicate to the party in whose favor the judgment was ren- dered, or his attorneys of record, the amount of excess and the time within which he may file a remittitur, whereupon the court shall reform and affirm the judgment, in an action against the receiver of a railroad for per- sonal injuries, the court of civil appeals should not reverse and remand the case upon the ground alone that the verdict is exces- sive; the statute being mandatory and re- quiring the court to authorize remittitur of the verdict above the amount which will be reasonable compensation for the injury in accordance with its sound judgment. Wilson v. Freeman (Tex.) 1918D-1203. 6. Where a verdict in an action for slander is so excessive as to clearly indicate passion or prejudice of the jury, a new trial will be ordered, rather than to order a remittitur. Cain v. Osier (la.) 1918C-1126. 7. Excessiveness of verdict. In a collision between a railroad train and an automobile, a married woman, twenty-eight years old, sustained a scalp wound and a fractured pelvis, also a nervous shock or collapse with its attendant ills, which still remained with her. She was suffering from a retroverted uterus, and seven months after the collision had a miscarriage when three months in pregnancy, and there was evidence that she could never have a child because of the pelvic break. Her suffering was intense and her injuries in a degree permanent. It is held that a verdict for $5,250, though large, was not excessive. Avery v. Thompson (Me.) 1918E-1122. 8. Twelve hundred and fifty dollars is not an excessive verdict in an assault and battery case, where the injury caused a permanent shortening and stiffening of the thumb and there was evidence to show expense and loss of time aggregating $350. Patterson v. Blatti (Minn.) 1918D-63. 9. A verdict of $6,500 for death of father supporting a family of ten was not excessive, although deceased was fifty-seven years of age, had one leg off six inches below the knee, and one arm was smaller than the other. Hays v. Hogan (Mo.) 1918E-1127. 10. Verdict of $25,000 to widow and four minor children of healthy man with expect- ancy of twenty-four and one-half years, who earned $1,800 per year, and who suffered severely for twenty hours after fall into elevator shaft in store, was not excessive. Kress v. Markline (Miss.) 1918E-310. Removal from grave or cemetery, see CEME- TERIES, 3, 4. DEATH. See DEATH BY WBONGFUL ACT; DYING DEC- LABATIONS. Creating presumption of survivorship by will, see WILLS, 39, 40, 48. Effect of presumption of death in action on life insurance policy, see LIFE INSUB- ANCE, 17. Proof of death of insured, see BENEFICIAL ASSOCIATIONS, 21. Waiver of proof of death of insured, see LIFE INSURANCE, 10, 11. 1. Evidence that the insured left his home eight years before the suit on a policy of mu- tual benefit insurance on his life, that there has been no trace of or word from him since that time, and that his whereabouts is un- known, raises the legal presumption in that suit that he is dead, proof that search has been made for the absentee not being neces- sary. Page v. Modern Woodmen of America (Wis.) 1918D-758. (Annotated) DEATH BY WRONGFUL ACT. 1. Limitation of Action, 77. 2. Who May Sue, 78. 3. Actions: a. Defenses, 78. b. Evidence, 78. c. Instructions, 79. d. Questions for Jury, 79. 4. Measure of Damages, 79. 'See DEATH. Action against husband for wrongful death of wife, see HUSBAND AND WIFE, 17. Liability of owner of boat livery for death of patron caused by sinking of boat, see THEATERS AND AMUSEMENTS, 2, 3. Statute making railroad liable for fires start- ed by engine as authorizing recovery for death resulting from fire started by en- gine, see RAILROADS, 21. 1. Limitation of Action. 1. Laws 1898, c. 65, providing relative to actions for wrongful death that such action shall be commenced within one year after the death, contains no saving clause in favor of any person, and the court cannot ingraft any such exception upon it. Gulf, etc. R. Co. < v. Bradley (Miss.) 1918D-554. 2. Effect of repeal of limit after bar at- tached. Const. 1890, 97, provides that the legislature shall have no power to revive any remedy which may have become barred by lapse of time or by any statute of limitation. Laws 1898, c. 65, required actions for wrong- ful death to be commenced within one year after the death. This statute was amended by Laws 1908, c. 167, by eliminating such limitation. It is held that, even disregarding the constitutional provision, the Act of 1908 did not authorize the bringing in 1913 of an action for a death occurring in 1902, as the limitation contained in the Law of 1898 was not merely a limitation of the remedy, but ANN. CAS. DKiKST (1018C-1918E). of the liability itself. Gulf, etc. R. Co. v. Bradley (Miss.) 1918C-554. 3. A declaration alleged that in August, 1902, plaintiff's father, while in defendant's employ, was killed by reason of the negli- gence of other employees under circumstances rendering defendant liable; that plaintiff was born in February, 1903; that on Septem- ber 30, 1902, suit was filed by plaintiff's mother in her own behalf and on behalf of another child then living to recover for the injury sustained by such death; that on the same day a final judgment was ren- dered in favor of the mother and such child in settlement of such injuries; and that thereafter and before plaintiff's birth such judgment was paid. It is held that this predicated the right of action upon the cause of action for the death, and not upon an agreed settlement not fully performed; and hence the requirement of Laws 1898, c. 65, that actions for wrongful death shall be com- menced within one year applied. Gulf, etc. R. Co. v. Bradley (Miss.) 1918D-554. 2. Who May Sue. 4. Where a railroad servant, killed in in- terstate commerce, leaves surviving him a widow or a child or children, the action against the road for his death, under the federal employers' liability act, must be maintained exclusively for their benefit, to the exclusion of other classes of beneficiaries named in the act, such as the employee's parents. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. 5. Divorced wife suing for death of child. The mother and administratrix of decedent may maintain action for his death, where it appears that she and her husband had been divorced, she being remarried, that the father Is alive, that the decedent has never lived with him, contributed to his support, nor been Tnaintained by him, but gave all his earn- ings to her. Clarks v. Detroit, etc. R. Co. (Mich.) 1918E-1068. 6. Recovery for death of adopted child. Under Rev. Laws, c. 154, 6, authorizing the probate court to make decrees for adop- tion, by which, except as regards succession to property, all rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist be- tween the child and the petitioner and his kindred, and shall, except as regards mar- riage, incest, or cohabitation, terminate be- tween the child so adopted and his natural parents and kindred, or any previous adopting kindred, the right of an adopting parent to recover for death of the child as administra- tor or administratrix under Rev. Laws, c. 171, 2, as amended by St. 1907, c. 375, and under Rev. Laws, c. 51, 17, and acts in amend- ment, is the same as that of a natural par- ent in the absence of adoption, the intent of the statute being to put an adopted child for all legal purposes, with certain exceptions, in the place of a natural child, "succession to property" meaning succession under the laws regulating the descent and distribution of in- testate property. Boutlier v. Maiden (Mass.) 1918C-IUO. 7. Parent having no pecuniary expectations from child. WJiere a railroad fireman, after his divorce, carried his trunk to his parents' home, making that his headquarters, but be- ing there only at infrequent intervals or for short times, when he would donate to his mother small sums, trifling in amount, rather as a result of affection than in recognition of any obligation to her in the way of sup- port and maintenance, she being supplied with the necessities of life through her hus- band and other children, such mother has no pecuniary expectations from her son, entit- ling her to recover for his death under the federal employers' liability act. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E^114. 3. Actions. a. Defenses. 8. Prior recovery by widow as barring rights of posthumous child. Under Laws 1898, c. 65, providing, relative to actions for wrongful death, that there shall be but one suit for the same death, which shall inure to the benefit of all parties concerned, it was immaterial that a child of deceased was not born when a suit by her mother was insti- tuted, as the limitation on the number of suits is without exception in favor of any person whatever. Gulf, etc. R. Co. v. Brad- ley (Miss.) 1918D-554. (Annotated) 9. A declaration in an action by a post- humous child for wrongful death alleged that a suit was filed by deceased's wife in her own behalf and on behalf of another child to re- cover for the death; that on the same day a final judgment was rendered in her favor for $2,500; and that thereafter, and before plaintiff's birth, the judgment was paid. It is held that, conceding that such judgment would not bar a suit by plaintiff unless it was rendered in good faith and without col- lusion, there was nothing in the declaration to indicate collusion in the rendition of the judgment, as the mere fact that it was ren- dered on the same day the declaration was filed was insufficient for that purpose, and. for all that appeared, $2,500 may have been full compensation for the injury. Gulf, etc. R. Co. v. Bradley (Miss.) 1918D-554. (Annotated) b. Evidence. 10. Presumptions and burden of proof. In an action for damages for death of plain- tiff's intestate, caused by sinking of boat hired of defendant, in which he, with three companions, had gone rowing, where they is no eyewitness to accident, presumption that those on board exercised due care is indulged only to relieve plaintiff from inference of neg- ligence, and not to supply evidence of defend- ant's negligence. Clark v. Detroit, etc. R. Co. (Mich.) 1918E-1068. 11. In an administratrix's action for deatli of her adopted son by electric shock from a broken wire, the burden is on plaintiff af- firmatively to show due care on the boy's DEBTOR AND CKEDITOK. 79 part in order to recover; the presumption created by St. 1914, c. 553. not applying where the cause of action occurred before the statute went into effect. Boutlier v. Maiden (Mass.) 1918C-910. 12. Financial circumstances of widow. In action for death of customer by falling down elevator shaft in store, testimony of the widow that her home has not been paid for is inadmissible. Kress v. Markline (Miss.) 1918E-310. 13. Admission of such testimony is harm- less error, since the jury could not have been misled thereby. Kress v. Markline (Miss.) 1918E-310. 14. Insurance on life of deceased. In ac- tion for death of customer by falling down elevator shaft in store, testimony as to amount of life insurance left by deceased is properly excluded. Kress v. Markline (Miss.) 1918E-310. 15. Judgment in divorce suit against de- ceased. In an action against a railroad, un- der the federal employers' liability act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [6 Fed. St. Ann. 2d ed. 280]), for death of its fireman, it was error for the court to permit defendant to introduce in evidence, and to read to the jury on trial over plain- tiff's objection, judgment in a divorce suit against decedent, ordering him to pay his divorced wife $300 for the support of their minor child, since the child, as a dependent, is entitled to recover the pecuniary benefits which it had the right to expect from its father, who was under a legal obligation to support it during its infancy, which benefits cannot be augmented or diminished by a col- lateral proceeding to which the child was not a party. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. (Annotated) 16. Sufficiency of evidence. The evidence is held to be sufficient to warrant finding that the boy's death was preceded by conscious suffering. Boutlier v. Maiden (Mass.) 1918C- 910. c. Instructions. 17. Submission of issue without evidence. In an action against a railroad, under the federal employers' liability act, for death of its fireman when his train was derailed in taking a curve, where there was absolutely no proof of any facts or circumstances look- ing to the establishment of any contributory negligence on decedent's part, the giving of an instruction on the question of contribu- tory negligence, allowing the jur.y to dimin- ish damages therefor, is prejudicial error, since from it the jury might conclude that the court saw something in the evidence justifying the instruction, in view of the close relation between the fireman and the engineer driving the train. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. d. Questions for Jury. 18. Expectancy from father. In an action against a railroad, under the federal em- ployers' liability act, for the death of a fireman, brought for the benefit of his in- fant daughter, the court should not submit the question whether the child had the right to expect pecuniary assistance from her father had he lived, since the law gave her such right, imposing on her father the duty of complying with it. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. 19. Rendition of services by child. Where in a suit by a parent for damages on account of loss of services of a child two years and four months old, alleged to have been negli- gently killed -by a railway train, it was al- leged that the child was precocious, strong, robust, and endowed with unusual physical powers for a child of her age, that she ran on errands, helped bring in wood, swept the house, helped to attend to plaintiff's younger child, and generally waited on plaintiff and helped in the household work, and contrib- uted to the support of plaintiff, and that the latter was dependent upon her, and that the value of the child's services was $3 per month, to which petition a demurrer was filed, if considered as an original proposi- tion, the members of this court are equally divided in opinion as to whether a court can judicially know that the facts thus alleged are as a matter of law untrue, because so un- reasonable as to be legally impossible. Un- der this division of opinion the decision in Atlanta Consolidated St. Ry. Co. v. Arnold, supra, stands as a decision of a majority of this court. It involved a child alleged to be between two and one-half and three years of age (which was ' construed by a majority of the court, in the case of James v. Central of Ga. Ry. Co. supra, as being equivalent to an allegation that the child was about two and one-half years old). This includes the lesser age of two years and four months. Holmes v. Southern R. Co. (Ga.) 1918D-1182. (Annotated) 4. Measure of Damages. 20. Amount of recovery by child. In an action against a railroad, under the federal employers' liability act, for death of its fire- man, brought for the benefit of his infant daughter, the sum which plaintiff is entitled to recover for her is properly limited to what she had reasonable expectations of receiving from her father, if his death had not been occasioned. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. 21. In an action against a railroad com- pany, under the federal employers' liabil- ity act, for death of its fireman, brought for the benefit of his minor daughter, plaintiff can recover for the child only the actual pecuniary loss resulting to her, and not for the money value "of that care, counsel, train- ing, and education" which she might have received from her father had he lived. Davis v. Cincinnati, etc. (Ky.) 1918E-414. DEBTOR AND CREDITOR. See FRAUDULENT SALES AND CONVEYANCES. 80 . CAS. DIGEST (1918C-191SE). DECEDENTS' ESTATES. See EXECUTORS AND ADMINISTRATORS; WILLS. DECISION. Reason for decision as affecting question of error, see APPEAL AND ERROR, 102, 103. DECLARATION. See PLEADING, 2-4. DECLARATIONS. See ADMISSIONS AND DECLARATIONS. DEEDS. 1. Requisites, 80. 2. Construction, 80. 3. Covenants Running with Land in General, 81. 4. Covenants of Title, 81. 5. Recitals, 81. 6. Proceeding to Forfeit Rights under Deed, 81. See EASEMENTS; MORTGAGES; RECORDING ACTS; RESCISSION, CANCELLATION AND REFORMATION; VENDOR AND PURCHASER. As mortgage, see MORTGAGES, 1-5. Deed by partner as contract to convey, see PARTNERSHIP, 4. Effect of agent's deed as contract to convey, see AGENCY, 14. Formal requisites of deed from wife to hus- band, see HUSBAND AND WIFE, 15, 16. Nature of title granted by deed of partner- ship, see PARTNERSHIP, 2. Parol evidence to impeach conveyance, see EVIDENCE, 33, 34. Parties in suit to cancel deed, see RESCIS- SION, CANCELLATION AND REFORMATION, 11. Permissive occupancy by grantor as affect- ing right of grantee to possession, see ADVERSE POSSESSION, 1. Reformation of deed as against bona fide purchaser, see VENDOR AND PURCHASER, 18. Requisites of deed executed by mortgagee under power of sale in mortgage, see MORTGAGES, 12, 13. Retention of premises by grantor as ground, for setting aside deed, see RESCISSION, CANCELLATION AND REFORMATION, 5. Right to revoke deed creating trust, see TRUSTS AND TRUSTEES. 40. Sufficiency of joinder of husband to wife's deed, see HUSBAND AND WIFE, 3. Suit to cancel grant of public lands by state, see PUBLIC LANDS, 10-21. Tax deeds, see TAXATION, 41, 42. 1. Requisites. 1. Effect of incompleteness at time of de- livery. A deed passes no title unless de- livered in a complete state in the grantor's lifetime. Butler v. Butler (X. C.) 1918E-638. 2. Description. Deed tendered to one hav- ing an option on a block separated from an- other by a party wall properly fixes the center line of the wall as the boundary. Weadock v. Champe (Mich.) 1918C-874. 3. An ancient deed, referring to land by its entry number, in accordance with the cus- tom at the time of its execution to refer to the entry and grant numbers in describing the land conveyed, is a sufficient description of the land conveyed, as the clear intention of the parties should be made effective, when the court can accomplish it by recognizing the legal and actual connection effected be- tween the entry and grant by the issuance of the latter upon the former. Fielder v. Pem- berton (Tenn.) 1918E-905. 2. Construction. 4. Deed referring to another instrument. Where a timber deed refers to another in- strument for its terms, it takes both instru- ments to show the entire contract. Berry v. Marion County Lumber Co. (S. C.) 1918E- 877. 5. Habendum construed with premises. A deed made pursuant to an option lumber contract contained two habendum clauses, which read "to have and to hold, all the short straw, poplar and cypress on the said five tracts of land in said five options above described and named, together with all the rights and privileges, members, rights and privileges stipulated in said option to be given to the said Cape Fear Lumber Com- pany, their successors and assigns." "To have and to hold all and singular, the said premises before mentioned unto the said Cape Fear Lumber Company, their successors and assigns forever." It is held, that as the term "premises" is used as embracing all that part of the deed which precedes the habendum and is the proper technical sense of the term as used in conveyances, and as the deed refers to the option contract giving a limited time within which to cut and re- move the timber, a second habendum clause conveyed only such privileges and rights as are set forth in the option, and not a fee in the timber. Berry v. Marion County Lumber Co. (S. C.) 1918E-877. (Annotated) 6. Prior accretions to land described. A deed, conveying by metes and bounds a tract described as containing 175 acres more or less, does not include some three hundred acres of accretions which had attached to the original tract before conveyance. Hous- ton v. Grant (Miss.) 191BE-243. (Annotated) 7. Effect as to agreement for easement. Where persons holding a contract to purchase, land from a railroad company enters into an agreement with the company, giving it the privilege to remove gravel from the premises, and the company's deed, thereafter executed, conveying the land to the purchasers, makes. DEFAMATION DELIVERY. 81 no mention of such agreement, the company's right to remove the gravel is lost. Simmons v. Northern Pac. R. Co. (Wash.) 1918C-1184. 3. Covenants Running with Land in General. 8. Whether a covenant runs with the land or is merely personal depends upon whether it concerns the use and occupation of the land or is a collateral and personal covenant, not immediately concerning the thing grant- ed, for if the covenant concerns the land and enjoyment, its benefit or obligation passes with the ownership. Purvis v. Shuman (111.) 1018D-1175, 9. Exemption from sidewalk assessments. Where a city, in consideration of an own- er's setting his fence back twelve feet, con- tracts never to require the owners of the property to build or maintain a sidewalk, and that the city will at its own expense grade, build, and forever maintain a pave- ment for the street, the covenant is such as runs with the land. Walker v. Richmond (Ky.) 1918E-1084. 10. Agreement to maintain depot. The covenant of a railroad company with a land- owner, in consideration of the grant of a right of way through his lands, and of land for depot purposes, to build and operate a depot on the grantor's land is one running with the land granted, and enforceable against the grantee of the covenantor. Har- per v. Virginian R. Co. (W. Va.) 1918D-1081. 4. Covenants of Title. 11. Special assessment as incumbrance. Where special assessments against real es- tate have been declared void, but are subse- (juently relevied, they do not constitute an incumbrance which relates back to the orig- inal levy so as to come within a covenant of warranty against incunibrances which was entered into subsequent to the first levy and before the relevy. Armstrong v. Banking Trust Co. (Kan.) 1918D-972. (Annotated) 12. In an action to recover for breach of a covenant against incunibrances. it was shown that in 1902 the city of Kansas City levied special taxes against the real estate for local improvements, the assessments being payable in ten annual instalments. After they were levied and before any instalments were paid, the assessments were declared void, and their collection enjoined. On March 24. 1912, sub- sequent to the conveyance of the land to plaintiff, the city relevied the assessments under the provisions of section 993 Gen. St. 1909. Held the real estate was subject to reassessment of the taxes, which made them in a strict sense an incumbrance, yet they did not become an incumbrance in the sense contemplated by the covenant until they be- came a lien by virtue of the relevy. Arm- strong v. Banking Trust Co. (Kan.) 1918D- 972. (Annotated) 5. Recitals. 13. As reviving right of stranger. A re- cital in a deed from such purchasers to a third person that the deed was subject to Ann. Cas. Dig. 191SC-E. 6. a contract permitting the railroad company to remove gravel does not revive the com- pany's right to remove gravel where the com- panv is a stranger to the deed. Simmons v. Northern Pac. R. Co. (Wash.) 1918C-1184. 14. Ancient deed. While recitals in a re- cent deed are not evidence, except as between parties to it, recitals in a deed, which has been recorded more than thirty years, and is therefore an ancient deed, that the grant- ors were heirs of the then record owner of the land conveyed, as heirship and family can be proved by hearsay evidence, were ad- missible as prinia facie evidence of the facts recorded against strangers to the title, es- pecially as the recitals were further corrob- orated by the fact that the grantee and his successor in title paid the taxes on the land and for thirty years exercised such control and public acts of ownership that it was generally known by the name of said suc- cessor in title. Fielder v. Pemberton (Tenn.) 1918E-905. (Annotated) 6. Proceeding to Forfeit Rights under Deed. 15. Nature. A proceeding to declare that the rights under a master's timber deed made in an action by the parties to carry out the provisions of an option had expired, and to enjoin the exercise of any further rights under the deed and for damages, is not a proceeding to reform a deed. Berry v. Marion County Lumber Co. (S. C.) 1918E- 877. 16. Return of consideration. In an action to declare that the rights under a master's deed executed pursuant to a timber option had expired, the return of the money re- ceived as consideration for the deed is not necessary in the absence of an attempt to re- form the deed. Berry v. Marion County Lumber Co. (S. C.) 1918E-877. DEFAMATION. See LIBEL AND SLANDEB. DEFAULT JUDGMENTS. See JUDGMENTS, 9. In justice's court, see JUSTICES OF THE PEACE, 1-4. DEFINITIONS. See WORDS AND PHBASES. DELEGATION OF POWERS. Of corporate directors, see COBPOBATIOKTS, 19. Of lecri?lative power see LiAW, 18. DELIVERY. Of deed, see DEEDS, 1. ANN. CAS. DIGEST (1918C-1918E). DEMAND. As condition precedent to action for conver- sion, see CONVERSION, 2. Necessity to allege demand to obtain refor- mation of instrument, see RESCISSION, CANCELLATION AND REFORMATION, 8.' DEMURRAGE. Construction of Reciprocal Demurrage Act, See CARRIERS, 7. Effect of partial invalidity of Reciprocal Demurrage Act, see STATUTES, 8. DEMURRER. See PLEADING, 11-14. Admission by demurrer to petition for in- junction, see INJUNCTIONS, 18. Effect of demurrer to information in nature of quo waranto, see Quo WABRANTO, 7, 8. DEMURRER TO EVIDENCE. Review of judgment on demurrer to evidence, see APPEAL AND ERROR, 52. DENTISTS. Employment of unlicensed assistant as de- fense to action on indenmity policy, see INSURANCE, 26-29. Indemnity against liability for malpractice, see INSURANCE, 23-29. Liability for negligence, see PHYSICIANS AND SURGEONS, 11, 12. DEPOT. Covenant to maintain, see DEEDS, 10. -Enforcement of contract to maintain depot, see SPECIFIC PERFORMANCE, 5-33. DESCENT AND DISTRIBUTION. See DOWER ; EXECUTORS AND ADMINISTRA- TORS ; TRUSTS AND TRUSTEES ; WILLS. 1. "Children." The word ''children," as used in subdivision 3 of section 8418, Rev. Laws 1910, which provides that, if there be no issue, nor husband, nor wife, nor father, nor mother, the estate of an intestate descends in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation, does not include grandchil- dren of a deceased brother or sister of the in- testate. Lowery v. Le Flore (Okla.) 1918E- 1001. (Annotated) DESCRIPTION. Of beneficiary in will, see WELLS, 29-34, 41. Of property in deed, see DEEDS, 2, 3. DESERTION. Allegations as to desertion in divorce suit, see DIVORCE, 2. Of person in military service, see ARIIY AND NAVY, 7. DILIGENCE. In discovering evidence, see NEW TRIAL, 2 t DEPARTURE. In pleading generally, see PLEADING, 15. In pleading in action on insurance policy, see INSURANCE, 22. DIRECTION OF VERDICT. See VERDICT, 10, 11. Review of directed verdict, see APPEAL AND ERROR, 51. DEPOSIT. Deposit in lieu of bond on appeal, see APPEAL AND ERROR, 111, 112. In lieu of bail, see BAIL, 1-3. Requiring deposit of fare in box, see CAB- BTEBS, 3, 4. DEPOSITIONS. 1. Exhibit not attached. Where a pro- bated will is referred to in a deposition, it is not necessary to attach it as an exhibit, as its identity may be established by parol, although the better practice is to attach an exemplified copy. In re Clodfelter (X. C.) 1918E-281. (Annotated) DIRECTORS OF CORPORATIONS. See CORPORATIONS, 18-22. DIRECT PRIMARY LAW. Withdrawal of candidacy under act, see ELEC- TIONS, 12, 13. DISABILITY. Compensation to employee, see MASTER AND SERVANT, 10, 11. Within accident insurance policy, see ACCI- DENT INSURANCE, 1, 2, 4. DISBARMENT DIVORCE. DISBARMENT. See ATTORNEYS, 18-21. DISCHARGE. Of accommodation maker of note, see BILLS AND NOTES, 1. DISFIGUREMENT. As element of damages, see DAMAGES, 2. DISMISSAL AND NONSUIT. Discontinuance by condemnor of eminent do- main proceedings, see EMINENT DOMAIN, 15, 16. Eight to dismiss bill where cross bill filed, see EQUITY, 2. 1. Dismissal of part of defendants. In an action for conspiracy to injure plaintiff in his business, the petition being amended to charge a libel against a defendant, in the ab- sence of proof to support the charge of con- spiracy, there being sufficient evidence to support the libel charge, the submission of the case, as to defendant charged with libel, and its dismissal as to the other delendants, is proper. McClintock v. McClure (Ky.) 1918E-96. 2. Motion for nonsuit. On motion for judgment of nonsuit, the evidence must be construed most favorably for the plaintiff. Krachanake v. Acme Mfg. Co. (N. C.) 1918E- 540. 3. In passing upon the sufficiency of ev- idence challenged by a motion for nonsuit or by a motion for judgment non obstante vere- dicto, it is only where the court can say as a matter of law that there is neither evidence nor reasonable inference from evidence to sus- tain the verdict that either of such motions can be granted. Godefroy v. Hupp (Wash.) 1918E-494. DISSOLUTION. Of corporations, see CORPORATIONS. 4, 5. Of marriage, see MARRIAGE, 9, 10. DISTRICT ATTORNEY. As party to divorce suit, see DIVORCE, 3-5. Right to appeal in divorce cases, see APPEAL AND ERROR, 11. DIVORCE. 1. Jurisdiction, 83. 2. Pleading, 83. 3. Defenses, 83. 4. Parties, 84. 5. Decree: a. Collusiveness, 84. b. Remarriage, 84. 6. Custody and Support of Children, 84. 7. Appeal, 85. See ALIMONY AND SUIT MONEY; MARRIAGE. Distinction between divorce and annulment of marriage, see MARRIAGE, 9, 10. Effect on right of husiband and wife to tes- tify against each other, see WITNESSES, 3-5. Laws governing divorce of members of In- dian tribes of Oklahoma, see INDIANS, 2. Necessity for bond in appeal by district at- torney in divorce case, see APPEAL AND ERROR, 113. Order requiring support by father of child as affecting right of child to recover for death of father, see DEATH BY WRONG- FUL ACT, 15. Right of district attorney to appeal in di- vorce cases, see APPFAL AND ERROR, 11. 'Suit by divorced wife for death of child, see DEATH BY WRONGFUL ACT, 5. Validity of contract between husband and wife facilitating divorce, see HUSBAND AND WIFE, 14; Validity of marriage in foreign state within proscribed time after divorce, see MAR- RIAGE, 1, 2. 1. Jurisdiction. 1. Domicil of parties. A British subject does not lose his domicil of origin by res- idence in the British Protectorate in Egypt where he is not subject to the local laws or to the jurisdiction of local courts, and according- ly an action for divorce may be maintained in England between British subjects resident in Egypt. Casdagli v. Casdagli (Eng.) 1918E- 669. (Annotated) 2. Pleading. 2. Allegations as to desertion. A com- plaint, averring that the conduct of the de- fendant husband had amounted to contin- uous and wilful desertion within the meaning of the statutes of the state of Oregon govern- ing divorce proceedings, and which further averred that the spouses had lived separately for a space of a year, does not show a deser- tion for a period of one year, which, by L. 0. L. 507, is made ground for a divorce; the averments relating to the desertion being con- clusions of law. Smythe v. Smythe (Ore.) 1918D-1094. 3. Defenses. 3. Duty of district attorney to urge de- fense. As the state is, by L. 0. L. 1020, as amended by Laws 1911, p. 126, made a party to an action for divorce, the district attorney should, where the defendant makes no de- fense, urge any defense, as the failure of the complaint to state a cause of action, that can be made. Smythe v. Smythe (Ore.) 1918D- 1094. (Annotated) ANN. CAS. DIGEST (1918C-1918E). 4. Parties. 4. When state not party to action. Where in a divorce action the district attorney neither demurred nor answered, he did not make the state a party to the action under L. 0. L. 542, providing that to plead or de- mur shall constitute an appearance. Smythe v. Smythe (Ore.) 1918D-1094. 5. L. O. L. 1020 as amended by Laws 1911, p. 126, declares that in any suit for dis- solution of the marriage contract, the state is to be deemed a party defendant, and the plaintiff shall cause the summons to be served on the district attorney or his deputy, and it shall be the duty of such district attorney, so far as may be necessary to prevent fraud or collusion in such suit, to control the proceed- ings on the part of the defense, and in case the defendant does not defend in good faith, to make a defense on behalf of the state, and that the court shall not hear or determine any suit for divorce until service has been had or unless the district attorney or his duly appointed deputy waive the provisions of the action by appearing in person at the trial of the cause, or by written acknowledgement of service. No process in a divorce proceeding was served on the district attorney or his deputy, but the attorney appeared at the hearing before the referee. It is held that, as the district attorney did not answer, demur, or give notice of waiver of appearance, he was not a party to the action; his appearance before the referee not being an appearance before the court hearing the divorce suit. Smythe v. Smythe (Ore.) 1918D-1094. (Annotated) 5. Decree. a. Conclusiveness. 6. Decree not providing for alimony. Where a wife asks alimony in a divorce ac- tion, and none is awarded, the effect is the same as if the decree had expressly denied it, and is an adjudication binding on the parties. Spain v. Spain (la.) 1918E-1225. (Annotated) 7. Where the husband's finances were such at the time of divorce that a decree of ali- mony would have been unavailing, while the wife had property of her own, the failure of the divorce decree to provide for alimony can- not be treated as the result of fraud or mis- take, though the wife contended her husband agreed to support her if alimony was not claimed. Spain v. Spain (la.) 1918E-1225. (Annotated) 8. When divorce was granted, and the wife given custody of the minor child of the mar- riage, no such provision for alimony or sup- port of the child was made, the husband being then bankrupt, and the wife then hav- ing several thousand dollars. Thereafter the husband remarried, and, being about to re- ceive property from the distribution of his father's estate, the divorced wife, under Code, 3180, providing that when divorce is decreed the court may make such order in relation to the children, property, parties, and mainte- nance of the parties as shall be right, and subsequent changes shall be made when cir- cumstances render them expedient, applied a modification of the original decree so as to allow alimony and provide for the support of the child of the marriage. It is held that, while provision might be made for the sup- port of the child, the divorced wife could not be granted alimony; the original decree mak- ing no provision for any alimony, not being subject to modification and being a conclusive adjudication denying alimony. Spain v. Spain (la.) 1918E-1225. (Annotated) 9. In such case, where the husband at the time of the application was considerably in- debted and his net income amounted to less than $2,000, while the property he expected to receive from the distribution of his father's estate was about $5,000, an award of $2.000, together with direction for the payment of an additional $2,000 in monthly instalments of $30, was too drastic, and could not in any event be upheld. Spain v. Spain (la.) 191SE- 1225. b. Remarriage. 10. Marriage within proscribed time. Un- der chapter 70 of the Sessions Laws of 1901, which provides that the effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, except that neither party to a divorce may marry within three months after the time such de- cree is granted, a marriage contracted by a divorced person less than three months after the decree was rendered is not void, and may not be assailed collaterally upon probate of such person's estate. Woodward v. Blake (N. D.) 1918E-552. (Annotated) 6. Custody and Support of Children. 11. Allowance for children Power to modi- fy. -Judgment, in a divorce action against the husband, ordering him to pay a sum to his wife for support of their infant child, may be opened up at any time by appro- priate proceedings and additional allowances made. Davis v. Cincinnati, etc., R. Co. (Ky.) 1918E-414. 12. Decree not providing for maintenance. The duty and responsibility of parents for the maintenance and education of minor chil- dren are not altered by the rendition of a decree of divorce in which no provision is made for the children, and the obligation of the father therefor is not canceled by the fact that the divorce was granted to him because of the fault of the mother. Rowell v. Rowell (Kan.) 1918C-936. (Annotated) 13. In such case and where the father ne- glects to provide for the maintenance and care of the minor children and leaves that burden entirely to the mother she is entitled to recover from him a reasonable amount for the expenditures she has made in providing for their care and support. Rowell v. Rowell (Kan.) 1918C-936. (Annotated) 14. While an independent action may be maintained by the mother for such relief, the more appropriate and complete remedy is by DOCTORS DRAINS AND SEWERS. 85 opening the decree of divorce wherein an al- lowance may be made for past as well as future support of the children. Rowell v. Rowell (Kan.) 1918C-936. 15. While a divorce dissolves the marriage status, it does not relieve a father from sup- porting his minor children, and, though no provision of support of minor children of the marriage, who were awarded to the wife, was made in the divorce decree, a subsequent ap- plication to compel the divorced father to support such children may be entertained. Spain v. Spain (la.) 1918E-1225. 16. Nonsupport by nonresident parent. Where by the misconduct of a husband and father in another state his wife and children are compelled to leave him, and they come to Kansas, and where in an action in which per- sonal service has been had upon him she ob- tains a divorce and a decree awarding her the custody of the children, and requiring him to make periodical payments for their support, he may thereafter, while in another state, be guilty of a violation of the statute referred to, by failing to provide in any way for the children, notwithstanding that they were brought into this state without his knowledge or consent. State v. Wellman (Kan.) 191SD- 1006. 7. Appeal. 17. Right of state to appeal. Where the state was not made a party to and did not appear in an action for divorce, as required by L. 0. L. 1020, a* amended by Laws 1911, p. 126, the state may appeal from the judg- ment of divorce, which is void as to it, for the decree cannot as to it be classed as one for want of an answer described in section 549, declaring that any party to a decree or judgment other than a judgment or decree given by confession or for want of an answer may appeal. Smythe v. Smythe (Ore.) 1918D-1094. (Annotated) DOCTORS. See PHYSICIANS AND SURGEONS. DOCUMENTARY EVIDENCE. See EVIDENCE, 17, 23. DOING BUSINESS. What constitutes doing business by foreign corporation, see CORPORATIONS, 47-49. DOMICIL. Of parties to divorce suit, see DIVORCE, 1. Power of executor to deprive widow of life estate under power of sale, see EXECU- TORS AND ADMINISTRATORS, 14. 1. Lands subject to executory limitation. A widow is entitled to dower in the estate held by her husband in fee, subject to execu- tory limitations. Sheffield v. Cooke (R. I.) 1918E-961. 2. Where land, was devised in fee subject to executory limitations and after the death of a devisee considerable amount of the real estate had been sold and the proceeds of sales used necessarily for the payment of various charges, the widow of the devisee who did not release dower has no claim for dower either in the real estate so sold or in the pro- ceeds so expended. Sheffield v. Cooke (R. I.) 1918E-961. 3. Where unimproved land is devised sub- ject to executory limitations and power of sale in trustees, as the power of sale is not mandatory but was to be exercised only 'to enable the trustees to pay annuities, charges, taxes, and assessments, placed upon the estate by the will, the will does not work an equitable conversion of the real estate, and the widow of the devisee is entitled to dower in the land and in the proceeds not necessary to pay the enumerated charges, the wife's dower not being superior to the liens or in- cumbrances created prior to the husband's title, in incumbered property of the husband. Sheffield v. Cooke (R. I.) 1918E-961. 4. Dower in proceeds of sale.-^-Although a widow may be awarded a gross sum as dower in the proceeds of sales of land, such an award may be made only when the circum- stances justify it. Sheffield v. Cooke (R. I.) 1918E-961. 5. Under Gen. Laws 1909, c. 329, 2, pro- viding that where inheritances are entire, and no division can be made, so that a woman can be endowed of the thing itself, she shall be endowed in a special and certain manner, as of a third part of the rents, and section 17, providing for the same mode of assign- ment in suits in equity, where a widow is entitled to dower in the proceeds of the sale of real estate left to her husband in trust subject to executory limitations and power of sale in trustees, she will be allowed an- nually the legal interest on one-third of the total proceeds derived from the sale of real estate, less the payment of the necessary charges and expenses for that year. Sheffield v. Cooke (R. I.) 1918E-961. 6. Rights of widow before assignment. A widow who has elected to take dower, in- stead of under the will is not entitled to the possession of any particular tract, against the devisees or heirs, until after the commis- sioners have set off her dower to her. Scot- ten v. Moore (Del.) 1918C-409. DOWER. Effect of renunciation of rights under will by widow, see WILLS, 49-51. DRAINS AND SEWERS. Drain pipe as easement, see EA?EME:rrs, 3. 86 ANN. CAS. DIGEST (191SC-1918E). DRESSMAKING SHOP. As manufacturing establishment, see LABOB LAWS, 10-11. DUE PROCESS OF LAW. See CONSTITUTIONAL LAW, 10. In proceedings before state Board of equaliza- tion, see TAXATION, 18. DUMMY CORPORATION. Appropriation of land by dummy corporation, see EMINENT DOMAIN, 3. DUPLICITY. In pleading, see PLEADING, 10. DYING DECLARATIONS. See ADMISSIONS AND DECLARATIONS; EVI- DENCE. 1. Foundation for admission. It is the province of the court to determine in the first instance, the admissibility of declara- tions offered in evidence as dying declara- tions, and for the purpose of proving the declarant's sense of impending death, expres- sions or statements of the deceased are al- ways admissible, if made at or about the time the dying declarations were made; and in this case it was the duty of the court to hear the evidence offered by the defendant, before determining that the dying declara- tions were incompetent and inadmissible. Morehead v. State (Okla.) 1918C-416. 2. Impending death. The rule is universal that before dying declarations can be ad- mitted in evidence it must appear that they : w 7 ere made under a sense of impending death, but it is not essential that the declarant state that they are so made. It is sufficient if it satisfactorily appears in any manner that they were made under that sanction. Poling v. State (Okla.) 1918E-663. S. Dying declarations, to be admissible, must be made under a sense of impending death; but it is not necessary that the dec- larant state that he is expecting immediate death. It is enough if, from all the circum- stances, it satisfactorily appears that such was the condition of his mind at the time of the declarations. Morehead v. State (Okla.) 1918C-416. 4. Manner of making. Dying declarations may be made by signs as well as by words, and where the declarant is in a dying con- dition, and so injured as to be unable to speak, the fact that in response to questions her answers were indicated by nodding and shaking her head, and pointing her finger, forms no objection to the competency and admissibility of such declarations. Poling v. State (Okla.) 1918E-663. 5. Admissibility on behalf of accused. On a trial for murder the dying declarations of the deceased are not limited as evidence in favor of the state alone but are equally ad- missible in favor of the defendant. .Morehead v. State (Okla.) 19180-416. ' (Annotated) 6. Declarations of third person. The decla- ration of a third person who was fatally wounded by the accused's victim is inadmis- sible, on the accused's behalf, as a dying dec- laration. Holland v. State (Ark.) 1918C-578. (Annotated) DYNAMITE CAPS. Leaving where accessible to children, see EX- PLOSIONS AND EXPLOSIVES, 4, 5. EASEMENTS. iLoss by failure to mention in deed, see DEEDS, 7. Right of guardian to impose servitude on sale of property, see GUARDIAN AND WARD, 1. Right of one tenant in common to'grant, see TENANTS IN COMMON, 1. 1. Implied reservation or grant. To raise an implied reservation or grant of an ease- ment the existing servitude must at the time of the deed be apparent, continuous and strictly necessary. Miller v. Skaggs (W. Va.) 1P18D-929. 2. It is a general rule of the common law, applicable in such cases, that when the owner of two tenements sells one of them, or the owner of an entire estate sells a portion thereof, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to be- long to it, as between it and the property which the vendor retains. Miller v. Skates (W. Va.) 1918D-929. 3. Visibility. An apparent easement need not be actually visible. It is enough that the facts and circumstances, fairly construed, will disclose it as in the case of a drain pipe Tinder the surface into which the water is conducted from a roof. Miller v. Skaggs (W. Va.) 1918D-929. 4. Meaning of "necessary." The rule of strict necessity applicable to an implied res- ervation or grant of an easement is not limited to one of absolute necessity, but tc reasonable necessity, as distinguished from mere convenience. Miller v. Skaggs (W. Va.) 1918D-929. Annotated) EGGS. Negligence in storage, see FOOD, 1-4. EJECTION. Of guest, see INNKEEPERS, 2. Of passenger, see CARRIERS OF PASSENGERS, 12, 13. EJECTMENT ELECTIONS. EJECTMENT. 87 1. Title of plaintiff. Plaintiffs in eject- ment must recover on the strength of their own title, not on the weakness of defend- ant's. Scotten v. Moore (Del.) 1918C-409. ELECTION. Between counts in criminal proceeding, see CBIMINAL LAW, 12. Effect of renunciation of rights under will by widow, see WILLS, 49-51. Of annuitant to take capital sum, see AN- NUITIES, 1. ELECTION OF REMEDIES. Waiver of tort and suit in assumpsit, see TOBTS, 1, 2. ELECTIONS. 1. Constitutionality of Election Laws, 87. 2. Nominations and Primary Elections: a. In General, 87. b. Qualification of Voters, 87. c. Withdrawal of Candidacy, 87. 3. Submission of Questions, 88. 4. Qualification of Voters, 89. 5. Corrupt Practices Acts, 89. See LOCAL OPTION; INITIATIVE AND REFER- ENDUM; PUBLIC OFFICERS. Review of judgment of voters as to prac- ticability of electing candidates of dif- ferent political parties, see PUBLIC OF- FICEBS, 6, 7. 1. Constitutionality of Election Laws. 1. Provision for second choice voting. Primary Election Law 1915, 14, 15, 26, 27, 28, 29, providing for second choice voting at primaries, is not violative of Const, art. 2, 2, prescribing the qualifications of electors, and article 5, 5, providing that the persons, respectively, having the highest number of votes for governor and lieutenant governor, shall be elected, but, in case two or more persons shall have an equal and the highest number of votes for either office, the general assembly shall, by joint vote, forthwith pro- ceed to elect one of the said persons governor or lieutenant governor, as the case may be, on the ground that the constitution contem- plates a single vote by each elector, since primary elections were not contemplated by such constitutional provisions. Kelso v. Cook (Iml.) 1918E-68. 2. Statute authorizing nomination by dif- ferent methods. Primary Election Law 1915, 14, authorizing the nomination of governor and United States senator by state-wide pri- mary, while requiring nominations for other state officers to be made at state conventions, is not violative of Const, art. 1. 23. provid- ing that the general assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens. Kelso v. Cook (Ind.) 1918E-68. 3. Requiring payment of fees by candi- dates. Primary Election Law 1915, 13, re- quiring candidates to pay into the state and county treasury a fee equal to one per cent of the annual salary of the offices they seek, is violation of Const, art. 1, 23, providing that the general assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens. Kelso v. Cook (Ind.) 1918E-68. 2. Nominations and Primary Elections. a. In General. 4. Nature of primary election. The prim- ary election provided by the Primary Election Law of 1915, occurring at regular intervals, is a "general election" and not a ''special election." Kelso v. Cook (Ind.) 1918E-68. b. Qualification of Voters. 5. Validity of Primary Election Law. Primary Election Laws 1915, 10, requiring an oath of party allegiance from a challenged voter, is not violative of Const, art. 2, 13, providing that all elections by the people shall be by ballot, which contemplates a secret ballot, as requiring the voter to dis- close how he voted at the preceding election and how he intends to vote at the coming one, since the statute does not require the chal- lenged voter to specifically state for whom he previously voted, but merely that he voted for a majority of the party's candidates, and there is nothing in the constitutional provi- sions making it unlawful for one to volun- tarily state how he voted or intends to vote. Kelso v. Cook (Ind.) 1918E-68. 6. Primary Election Law 1915, 10, pro- viding that each qualified voter of the pre- cinct who at the last preceding general elec- tion voted for a majority of the regularly nominated condidates of the party holding the primary shall be entitled to vote at it, provided he was registered as a voter at such previous general election, and that if he was not registered he shall make a prescribed affidavit, upon being challenged, as provided, by any voter at the election, is not violative of Const, art. 2, 13, providing that all elec- tions by the people shall be by ballot and all elections by the general assembly, or either branch thereof, shall be viva voce, on the theory that any qualified legal voter of the precinct, regardless of party, may challenge anyone demanding any party ballot, for lack of previous adherence to the party whose bal- lot he demands, in which case the one chal- lenged cannot vote unless maxing the pre- scribed oath of party allegiance, since one may waive any right conferred for his own benefit, whether contractual, statutory, or constitutional, unless the relinquishment is detrimental to the public, so that the test in the form of a fealty oath, intended solely 88 AX NT. CAS. DIGEST (1918C-1918E). for the benefit of political parties interested, may be waived by the particular party whose right is involved, and members of no other party may question the voter's right. Kelso v. Cook (Ind.) 1918E-68. 7. The Primary Election Law of 1915 (Acts 1915, c. 105) is not invalid as con- travening, by providing different qualifica- tions for voting in primaries, including tests of party affiliation, Const, art. 2, 2, pro- viding that in all elections every male citizen of the United States, twenty-one years or older, who shall have resided in the state for six months, in the township sixty days, and the ward or precinct thirty days immediately preceding such election, and every male of foreign birth of the same age, residence, etc., who shall have declared his intention to be- come a citizen of the United States, shall be entitled to vote in the township or precinct where he may reside, if he shall have been duly registered according to law, since the constitutional provision does not govern pri- mary elections, as the words "primary elec- tion" are well understood to mean the act of choosing candidates by political parties to fill the various offices, and the word "elec- tion" means the final choice of the electors to fill such offices, while to assume that the provision governs primary elections would destroy the possibility of political organiza- tion by parties, which must, necessarily, be able, by test of affiliation, to exclude voters hostile to them from voting to select their candidates. Kelso v. Cook (Ind.) 1918E-68. (Annotated) 8. Primary Election Law 1915, 10, pro- viding that each qualified voter of the pre- .cinct who at the last preceding general elec- tion voted for a majority of the regularly nominated candidates of the party holding the primary shall be entitled to vote at it, provided such elector was registered as a voter at such previous general election, etc., is not violative of Const, art. 1, 23, provid- ing that general assembly shall not grant to any citizen or class of citizens privileges or immunities which on the same terms shall not equally belong to all citizens, as exclud- ing, by 'the test f of participation in a primary, those who were duly registered for, but did not vote at, the preceding general election on account of unavoidable accide'nt, etc., and as permitting to participate those who were too young to register and vote. Kelso v. Cook (Ind.) 1918E-68. 9. Primary Election Law 1915, 10, pro- viding that each qualified voter of the pre- cinct, who, at the last preceding general elec- tion, voted for a majority of the regularly nominated candidates of the party holding the primary, shall be entitled to vote at it, provided he was registered as a voter at such previous general election, etc., is not violative of Const, art. 2, 1, declaring that all elec- tions shall be free and equal. Kelso v. Cook (Ind.) 1918E-68. 10. Right to challenge voter at primary. Under the Primary Election Law of 1915, any voter of a precinct may challenge any nonresident who offers to vote. Kelao v. Cook (Ind.) 1918E-68. c. Withdrawal of Candidacy. 11. The right to seek election to any office is open to all persons possessing the consti- tutional or statutory qualifications, but a citizen is under no obligation to seek an elec- tion to any office, and may be a candidate or refuse to be such at his option. Bordwell v. Williams (Cal.) 1918E-358. (Annotated) 12. Though all necessary steps have been taken to enable one to become a candidate for nomination for the office of United States senator under the Direct Primary Law (St. 1913, p. 1379), and within the 35 days before election allowed by section 5, subd. 4, he has filed with the secretary of state his affidavit stating that, if nominated, he would accept and not withdraw, and would qualify if nomi- nated and elected, and his name has been certified to county clerks, with directions to print it on the primary ballot as a candidate, and his name has been published as required by section 10, and put on sample ballots, he may withdraw as a candidate. Bordwell v. Williams (Cal.) 1918E-358. (Annotated) 13. Under the Direct Primary Law, section 10 of which requires the county clerk to pub- lish the names appearing upon the list certi- fied to him by the secretary of state, section 12, providing that the names of all candidates for whom nomination papers have been filed shall be printed on the ballot, and section 27, authorizing an application to the supreme court in case of error, omission, or wrongful act in placing aby name on an official primary election ballot Ar in printing such ballot, and authorizing the court to order the officer to correct the error, the county clerk acts minis- terially in publishing the names certified to him, and, where a candidate withdraws after the secretary of state has made his certificate, the court, by mandamus, may compel the county clerk to omit such candidate's name from the ballot to be used in a forthcoming primary election. Bordwell v. Williams (Cal.) 1918E-358. 3. Submission of Questions. 14. Submission of double proposition. If two unrelated propositions are submitted on a single ballot in such manner that one is burdensome and coercive so as to suppress the voters' will upon the othor, the courtn will closely scrutinize the elections so hold. Keith v. Lockhart (N. C.) 1918D-916. 15. An election under a statute providing for submission to the voters of the double proposition whether the fence law should be adopted and whether a stipulated tax for the construction of fences should be levied, to be voted upon at the same election and by the same ballot, if otherwise valid, may be' con- strued as a sufficient expression on both ques- tions, and an affirmative vote would authorize the levy of the tax. Keith v. Lockhart (N. C.) 1918D-916. 16. Where a statute by two separate pro- visions authorizes an election to determine ELECTRICITY. the question whether the stock law should be retained or fences should be constructed, and also authorizes the submission of the question of a tax for the construction of fences, and the method of computing the tax is invalid, an election held upon both propositions, but one ballot being used, was not invalidated entirely, but was good as to the stock-law provision and void only as to the tax. Keith v. Lockhart (N. C.) I918D-916. 4. Qualification of Voters. 17. Legislative control. The provisions of section 1, article V of the constitution, which prescribe the qualifications of electors, con- trol in all elections held to fill offices which the constitution itself has provided for, and in all elections upon questions submitted to a vote pursuant to provisions of the constitu- tion; and such qualifications can be altered only by amendment to the constitution. State v. French (Ohio) 19180-897. 18. Grant of right to women by munic- ipal charter. The constitution itself having by article XVIII committed to any munic- ipality the power to frame and adopt a char- ter for its government and to exercise there- under all powers of local self-government, subject to the limitations expressed in that article, a provision in the charter of a munic- ipality, adopted in full compliance with the article referred to, which confers upon women the right to vote for all municipal elective officers and to be appointed or elected to and hold any municipal office provided for in such charter, is valid. (Mills v. City Board of Elections et al. 54 Ohio St. 631, and State ex rel. v. City of Cincinnati et al. 19 Ohio 178, approved and followed.) State v. French (Ohio) 191SC-896. 5. Corrupt Practices Acts. 19. Prohibition of contribution by corpora- tion. A manager or director of a corporation, paying to a "Personal Liberty League" money of the corporation for expenses in opposing local option at a town election, is held to be punishable, under Pub. Acts 1913, Xo. 109, 14, providing that no director of a corpora- tion shall pay money thereof to any political committee for any election expenses. People v. Gansley (Mich.') 1918E-165. (Annotated) ELECTRICITY. 1. Care Required in General, 89. 2. Injury to Children, 89. 3. Concurring Negligence of Another Com- pany, 90. 4. Actions for Injuries: a. Evidence, 90". b. Questions for Jury, 90. See LIGHTING DISTRICTS. Liability of city and electric company for in- jury to pedestrian resulting from pick- ing up electric wire, see STREETS AND HIGHWAYS, 13-15. 1. Care Required in General. 1. If land between a house and an electric wire pole \vas used by the public as a play- ground and for purposes of travel for thirty years, electric companies stringing wires on the pole are charged with notice that persons might at any time be upon the land with the permission of the owner. Boutlier v. Maiden (Mass.) 1918C-910. 2. If electric companies maintain poles up- on a highway and near the line between the highway and an open lot used by the public with the owner's permission, on which poles wires were attached carrying a high voltage of electricity, the companies are bound to exercise reasonable care to maintain their wires so that persons rightfully on the lot will not be injured. Boutlier v. Maiden (Mass.) 1918C-910. 3. Wires maintained over private premises. A member of a theatrical company, which had rented a lot for tent shows and who was supposed to assist in packing paraphernalia, is not a trespasser while on the premises, and where a light company negligently allowed its wires over the premises to sag so that they came in contact with paraphernalia on a wagon it cannot defeat recovery by the ac- tor who had not completely packed his per- sonal belongings, for injuries received when he mounted the wagon, on the ground that the actor was a trespasser. Lancaster Elec- tric Light Co. v. Taylor (Ky.) 1918C-591. (Annotated) 4. In such case the question whether the actor was a volunteer is held to be for the jury. Lancaster Electric Light Co. v. Taylor (Ky.) 1918C-591. (Annotated) 5. Wires in proximity to those of another company. An electric company, whose wires by agreement are strung on the same poles as those of a telephone company, and which carry a heavy current, is bound to see that its wires are in such reasonably safe condi- tion as to afford protection from injury to employees of the telephone company coming in contact with them in the course of their employment. Ridgeway v. Sayre Electric Co. (Pa.) 1918D-1. (Annotated) 2. Injury to Children. 6. Electric companies, whether rightfully upon the land of another or not with their wires crossing it, owe the duty to a boy on the land in the owner's right to use due dili- gence to maintain and manage their electric wires so that he shall not be injured. Bout- lier v. Maiden (Mass.) 1918C-910. 7. A boy on land in proximity to an elec- tric wire pole by the implied invitation of the owner of the land is there in the owner's right, and has the same rights against elec- tric companies whose wires are strung on the pole as the owner would have had. Boutlier v. Maiden (Mass.) 1918C-910. 8. If an open space between a house and electric wire pole had been used by the public as a playground and a common passageway, and had been used for travel by persons traveling between two streets, and such uses 90 A XX. (AS. DIGEST (1918C-1918E). had been made with the knowledge and con- sent of the owner, there was an implied in- vitation by the owner to the public to travel over the space, and a boy using the space is not a trespasser against the owner, but right- fully on the land by his permission. Boutlier v. Maiden (Mass.) 1918C-910. 3. Concurring Negligence of Another Com- pany. 9. Though an electric company did not own high-tension wires below its own on its poles,- if the high-tension wires were placed under its own with its knowledge, the electric com- pany may be found liable for death of a boy from shock when he touched the electric com- pany's wire, which had broken and fallen against the high-tension wires below, the in- sulation on which was defective, if the elec- tric company failed to adopt such precau- tions as were reasonably necessary to avoid danger to persons lawfully traveling on the highway. Boutlier v. Maiden (Mass.) 1918C- 910. (Annotated) 10. If the poles and wires of defendant electric company are maintained without per- mission of a town or a city, and, without any permission, it authorizes another electric com- pany to place wires upon its poles, negligence of the electric company is thereby shown. Boutlier v. Maiden (Mass.) 1918CM)10. (Annotated) 11. Joint Liability. Where an electric company maintains an uninsulated wire in close proximity to the wires of another com- pany and a foreman of the latter company sends a lineman to work on its wires without cautioning him as to the dangerous situation thus created, both companies may be held liable for injuries received by the lineman from coming in contact with the uninsulated wire. Toronto v. Lambert (Can.) 1918D-57. (Annotated) 4. Actions for Injuries. a. Evidence. 12. Franchise regulating placing of wires. A .provision in an electric light company's franchise, requiring all wires upon poles to be not less than twenty-five feet above the ground or street, and to be placed at a greater or less height above the ground whenever directed by the city, has reference only to the stringing of wires on streets or highways of the city, and not to the placing of wires on private property rented by the owner at different times for amusement purposes; and, in an action for injuries caused by the sag- ging of a wire so placed, it is error to permit the franchise to be read in evidence. Lan- caster Electric Light Co. v. Taylor (Ky.) 1918C-591. b. Questions for Jury. 13. Electric light wires charged with only slightly over two hundred volts are man- ifestly dangerous, and in an action for in- juries resulting from negligent maintenance of such wires over private property the sub- mission to the jury of the question whether they were dangerous is proper. Lancaster Electric Light Co. v. Taylor (Ky.) 1918C-591. (Annotated) 14. In an administrator's action for death of her adopted son by electric shock when he touched an electric company's wire hang- ing in the street beside the sidewalk, question of the negligence of the company which owned the wire is held" to be for the jury. Boutlier v. Maiden (Mass.) 1918C-910. (Annotated) 15. The question whether the company against whose high-tension wire the broken wire fell, becoming charged with the deadly current, was negligent, is held to be for the jury. Boutlier v. Maiden (Mass.) 1918C-910. (Annotated) 16. In an action against an electric com- pany for the death of plaintiff's husband, a telephone lineman, from contact with defend- ant's defectively insulated wires, it is held on the evidence, that defendant's negligence was for the jury. Ridgeway v. Sayre Elec- tric Co. (Pa.) 1918D-1. (Annotated) 17. In such case, where the break in the in- sulation of defendant's wire was plainly visible, but where it was not decedent's duty to examine defendant's wires, and he had no knowledge that such defective wire was car- rying a high current, his contributory negli- gence is for the jury. Ridgeway v. Sayre Electric Co. (Pa.) 1918D-1. (Annotated) 18. Contributory negligence. A seventeen- year-old boy is not negligent as matter of law because upon a dark and stormy night he fails to see a broken electric wire lying in the grass, or because he mistakenly believes that sparks emanating from it are fireflies; the question whether he failed to exercise due care being a question for the jury. Boutlier v. Maiden (Mass.) 1918C-910. ELECTRIC RAILWAYS. See STEEET RAILWAYS. ELEVATORS. Excessiveness of damages in action for in- juries sustained by falling into elevator shaft, see DAMAGES, 10. 'Showing dangerous character of elevator shaft by previous accidents, see EVI- DENCE, 6. 1. Notice to owner of negligent operation. Negligent operation of an elevator in a store, for two years, by leaving the shaft door open, charges the storekeeper with notice of the manner of operation. Kress v. Markline (Miss.) 1918E-310. < 2. Presumption. Where a customer went to a counter to purchase a jardiniere, the presumption obtains, in an action for his death by falling down an elevator shaft, in the absence of contrary evidence, that in going behind the counter he did so to con- tinue his examination preparatory to pur- EMBEZZLEMENT EMINENT DOMAIX. 91 chasing. Kress v. Markline (Miss.) 1918E- 310. (Annotated) 3. The presumption, in the absence of con- trary evidence, being that the deceased custo- mer exercised due care an offset against the value of that taken, but the owners are not entitled to receive any in- creased valuation on account of improve- ments made or proposed to be made by the government. U. S. v. First Nat. Bank (U. S.) 1918E-36. 6. Condemnation Proceedings. 15. Discontinuance by condemnor. A water company, organized under Priv. & Sp. Laws 1895, c. 125, 4, as amended by Priv. & Sp. Laws 1911, c. 256, 4, requiring it to pay damages for taking of lands to be ascertained in the manner prescribed by law, in case of damage by laying out highways, cannot. under Rev. St. 1903, c. 23, 7, postponing payment of damages until the actual taking possession of the land in highway cases. ' abandon the proceeding of condemnation, the provision of Act 1911 providing only the tribunal and method of procedure in ascer- taining damage. York Shore Water Co. v. Card (Me.) 1918D-945. (Annotated) 16. A water company having begun pro- ceedings to condemn land for its site, an. EMPLOYERS ESTOPPEL. 93 award of damages having been made and con- firmed, without appeal therefrom, cannot thereafter abandon the proceedings, the prop- erty owner having acquired a vested interest in the award. York Shore Water Co. v. Card 1918D-945. (Annotated) EMPLOYERS. See MASTER AND SERVANT. EMPLOYERS' INABILITY ACTS. See MASTER AND SERVANT, 4, 5, 35-38. EMPLOYERS' LIABILITY INSUR- ANCE. See INSURANCE, 30-38. ENACTMENT. Of statutes, see STATUTES, 4-6. ENCUMBRANCES. Covenant against, see DEEDS, 11, 12. ENDLESS CHAIN. Relief of party to endless chain contract, see CONTRACTS, 20. ENEMY. Alien enemies, see ALIENS, 1-7. ENTIRETIES. Estate by entireties as subject to execution, see EXECUTIONS, 1. EQUIPMENT. Lack of statutory equipment of automobile, see AUTOMOBILES, 23. EQUITY. Equitable relief to corporate stockholders, see CORPORATIONS, 15-17. Power of court of equity to change or modify trust, see TRUSTS AND TRUSTEES, 35-38. Protection of minority stockholder, see COR- PORATIONS, 42. Suit in equity to prevent diversion of park to improper use, see PARKS AND SQUARES, 1. 1. Answer taken as true. Where com- plainant, within the time allowed by law for taking testimony, sets down the cause for hearing on bill and answer, the answer is, under Code 1906, 603, to be taken as true. New Standard Club v. McRaven (Miss.) 1918E-274. 2. Right to dismiss bill where cross bill filed. An order permitting the voluntary dismissal of plaintiff's bill before trial as of course, not referring to a cross bill of de- fendant, is not reversible error, where no probable legal prejudice therefrom to de- fendant's rights appears; such order not carrying with it the cross bill, which still remains to be disposed of if any affirmative relief is sought thereby. Hyde Park Lumber Co. v. Hunt (Vt.) 1918E-1183. (Annotated) 3. Relevancy of supplemental bill. Plain- tiff and defendant agreed in writing for re- scission of a contract to sell land and for an arbitration of the amount defendant should pay plaintiff as reimbursement for pay- ments on the purchase price and improve- ments, after deducting rents. What pur- ported to be an award of the arbitrators was filed with the register, but the court refused to enter it as its decree, there being no preliminary order authorizing it. Plain- tiff thereupon filed a supplemental bill set- ting up the agreement and award as a com- mon-law arbitration, and prayed the court to put it into effect by its final decree in the cause. It is held that the supplemental bill proceeded upon the same equity as the orig- inal bill, and was properly allowed as a continuation thereof. Black v. Woodruff (Ala.) 1918C-969. ERROR. See APPEAL AND ERROR. ESTATES. See DEEDS; DOWER; EASEMENTS; LIFE ES- TATES; REMAINDERS AND REVERSIONS; TRUSTS AND TRUSTEES; WILLS. ESTOPPEL. Of building and loan association to claim lien on stock of members, see BUILDING AND LOAN ASSOCIATIONS, 8. Of carrier to collect rate different from that stated in bill of lading, see CARRIERS OF GOODS, 10. Of factor to attack title of consignor, see FACTORS, 1-3. Of lessor to deny insurable interest of lessee, see FIRE INSURANCE, 3. Of wife to deny validity of contract of em- ployment of attorney by husband, see ATTORNEYS, 2. To attack award of arbitrators, see ARRBI- TRATION AND AWARD, 6. To declare forfeiture of membership in bene- ficial association, see BENEFICIAL ASSO- CIATIONS, 16. To deny corporate existence, see CORPORA- TIONS, 3. 94 (AS. DIGEST (191SC-1918E). To deny title of husband, see HUSBAND AND Warn, 23. To dispute authority of court to grant con- tinuance, see APPEAL AND ERROR, 59. To enforce civil liability of corporate officers, see COREORATIONS, 10. 1. Proof of facts creating. An estoppel in pais may not be predicated on a possible inference. Jewell v. Xuhn (la.) 1918D-356. 2. Inconsistent position in litigation. Where the widow of a railroad employee killed in service, suing for his death under Code 1906, 721, as his lawful widow, asks for the usual instruction that she was en- titled to recover such damages as the jury might determine, "'taking into consideration all the damages to the decedent and all dam- ages of every kind to any and all parties interested in this suit," she concedes the legitimacy of the children of decedent by his former marriage by seeking to enlarge her recovery on their account, and cannot deny their right to an undivided interest in the proceeds of the suit on the ground that they are illegitimate; their right to the fund being based on their judgment against the road, and not on the judgment alone recovered by the widow. Howard v. Kelly (Miss.) 1918E- 1230. EVICTION. Failure to furnish heat as constructive evic tion, see LANDLORD AND TENANT, 18. EVIDENCE. 1. Judicial Notice, 94. 2. Relevancy and Admissibility in General, 95. 3. Hearsay Evidence, 95. 4. Experimental Evidence, 95. 5. Expert and Opinion Evidence: a. Expert Evidence, 95. b. Nonexpert Opinion, 95. 6. Documentary Evidence, 96. 7. Photographs as Evidence, 96. 8. Parol Evidence to Vary Written Instru- ments, 96. 9. Presumptions, 97. 10. Burden of Proof, 97. 11. Weight and Sufficiency of Evidence, 98. 12. Legislative Power over Rules of Evi- dence, 98. See ADMISSIONS AND DECLARATIONS: AP- PEAL AND ERROR; CRIMINAL LAW; DEPO- SITIONS; DYING DECLARATIONS: WIT- NESSES. As to capacity of testator, see WILLS, 6-8. As to revocation of will, see WILLS, 14-16. Conformity of instructions to evidence, sea INSTRUCTIONS, 7-10. Credibility, impeachment and corroboration of witnesses, see WITNESSES, 13-18. Examination of witnesses, see WITNESSES, 8-12. In aid of construction of wills, see WILLS, 29-34. Incorporating in record on appeal, see AP- PEAL AND ERROR, 16, 18-21, 28, 29. In probate of wills, see WILLS, 18-21. In proceeding against railroad to compel common user of bridge, see RAILROADS, 10, 11. In suit to cancel deed to school lands pur- chased from state, see Public Lands, 19. 20. In suit to set aside award, see ARBITRATION AND AWABD, 7-9. Xewly discovered evidence as ground for new trial, see NEW TRIAL, 4. Objections, see APPEAL AND ERROR, 97. Of foreign judgment, see CONFLICT OF LAWS, 5. Of undue influence of testator, see WILLS, 9. Parol evidence to establish trust, see TRUSTS AND TRUSTEES, 7-13. Parol evidence to vary release, see RELEASE AND DISCHARGE, 8. Prejudicial errors in relation to evidence, see APPEAL AND ERROR, 70-82. Particular actions and actions by and against particular persons, and for particular causes See AGENCY, 7, 11, 14; AUTOMOBILES, 4, 6-9, 11, 18; BROKERS, 7, 8; CARRIERS ov GOODS, 16-19; CONSPIRACY, 1, 2; COR- PORATIONS, 11-14, 17; CRIMINAL LAW, 14-21; DAMAGES, 4; DEATH, 1; DEATH BY WRONGFUL ACT, 10-16, 19; DEED, 14; DISMISSAL AND NONSUIT, 2, 3; DYING DECLARATIONS; ELECTRICITY, 11; ELE- VATORS, 2-4; FALSE PRETENSES, 3, 4; FIRE INSURANCE, 18-20 ; FOOD, 2-4 : FOR- MER JEOPARDY, 2; FRAUD, 7-9, 14, 15; GUARANTY, 5; HOMICIDE, 4-11; HUS- BAND AND WIFE, 19, 20; INDEPENDENT CONTRACTORS, 6; INJUNCTIONS, 19, 20; INTOXICATING LIQUORS, 10-16; LIBEL AND SLANDER, 48-54; LIFE INSURANCE, 12-17; LOST INSTRUMENTS, 2-5; MAR- RIAGE, 6-8; MASTER AND SERVANT, 33, 34, 38; MINES AND MINERALS, 2; MU- NICIPAL CORPORATIONS, 34; NEGLIGENCE, * 6-8; PHYSICIANS AND SURGEONS, 7, 8, 13, 14; RAILROADS, 22; RESCISSION, CAN- CELLATION 4 AND REFORMATION, 12; TELE- GRAPHS AND TELEPHONES, 5, 12; THEA- TERS AND AMUSEMENTS, 10-11; VENDOR AND PURCHASER, 21-22; WARRANTY, 3; WATERWORKS AND WATER COMPANIES, 7-10; WEAPONS^ 3. 1. Judicial Notice. 1. Fact of unexplained explosions. The court may take judicial notice of the fact that disastrous explosions have occurred for which no satisfactory explanations have ever been offered. Pierce Oil Corp. v. Hope (Ark.) 1918E-143. 2. Tendency of metal to attract lightning. It is not a known law of nature of which the court may take judicial notice that met- als such as iron and steel possess properties EVIDENCE. 95 which perceptibly attract lightning and en- hance the danger from lightning within the sphere of their influence. Wiggins v. In- dustrial Ace. Board (Mont.) 1918E-1164. 3. Rules of court. The rules of a munic- ipal court can be taken cognizance of on an appeal to the supreme court only when they are included in a bill of exceptions. Scovill Mfg. Co. v. Cassidy (111.) 1918E-602. 4. Mortality tables. In the absence of evidence going to establish the probable duration of life or expectancy of one whose death resulted from the negligent act of another, the court may take judicial notice of any standard mortality tables and in- struct the jury as to the facts stated there- in. While the statute makes the Carlisle Mortality Tables admissible as evidence of such fact, it does not preclude the court from taking judicial notice of such tables as are generally used to establish life expec- tancy. Chambers v. Minneapolis, etc. R. Co. (X. D.) 1918C-954. 5. Labor conditions of women. It is a matter of common knowledge, of which the court will take judicial notice, that condi- tions have arisen with reference to the em- ployment of women which have made it necessary for many of the states to appoint commissions to make a detailed investiga- tion of the subject of women's work and their wages. State v. Crowe (Ark.) 1918D- 460. 2. Relevancy and Admissibility in General. 6. Showing dangerous character of place by previous accidents. In action for death of customer by falling down elevator shaft in store, evidence that the elevator door had on former occasions been left open, and other people had nearly been hurt, is ad- missible as tending to show the dangerous character of the place. Kress v. Markline (Miss.) 1918E-310. 7. Proving value. Evidence of a dealer in automobiles at the county seat, only a few miles from the town in which the cause of action arose, as to the value of a certain kind of automobile, is admissible; the price of such a common article of trade varying only as to freight charges in such a restrict- ed territory. Smead v. Stearns (la.) 1918C- 745. 8. As to matter of law. Evidence as to the legal effect upon the title of the deliv- ery of the bill of lading to the buyer, and of provision for the weighing and analyzing of the fertilizer, being purely questions of law, is properly excluded. Agri Mfg. Co. v. Atlantic Fertilizer Co. (Md.j 1918D-396. 3. Hearsay Evidence. 9. Testimony of deceased witness. Where a witness who testified at a former trial has since died, his testimony may be re- produced on proof of his death. McCue v. State (Tex.) 1918C-674. 4. Experimental Evidence. 10. Speed of train. In an action for in- juries sustained while riding in the auto- mobile of defendant's intestate, when he at- tempted to pass in front of an approaching train, the engineer testified that the train was running eight or ten miles an hour, that this was^ the usual speed at that crossing, and that it was necessary not to run at a greater speed in order to stop at a nearby station. A civil engineer was asked if he had timed a train making the ordinary stop at that station to know whether it could make its ordinary stop at a rate of more than ten miles an hour on the crossing. It is held that the exclusion of this question was not error, as it could only have con- tradicted the engineer's opinion as to the necessary limit of speed in order to make the stop, which was immaterial, and more- over the attempt to pass in front of the train would have been equally reprehensible whether the train was running ten miles an hour or faster. A very v. Thompson (Me.) 1918E-1122. 11. The experimental observation which the witness was asked to narrate having been made at a subsequent date, and not confined to the particular train, is within the exclud- ing rule of res inter alios acta. Avery v. Thompson (Me.) 1918E-1122. 5. Expert and Opinion Evidence. a. Expert Evidence. 12. Another opinion as basis. It is not proper to predicate an expert opinion upon another, as they must be based either upon facts or facts assumed to be true. Havs v. Hogan (Mo.) 1918E-1127. 13. Ultimate question for jury. In a will contest, it is not error to sustain objections to questions of a physician as to whether one in the stages of senile dementia would have capacity to know the natural objects of his bounty. Walsh's Estate (Mich.) 1918E-217. 14. Operation of X-ray machine. One qualified to testify as an expert in the use of X-ray machines may, from the result produced, give his opinion whether the ma- chine was operated in a proper manner. Holt v. Ten Broeck (Minn.) 1918E-256. b. Nonexpert Opinion. 15. Capacity of testator. Since sanity is normal, it is not error in a will contest to admit opinion evidence of one who has transacted business with testator that testa- tor seemed to have capacity to attend to his business' affairs. Walsh's Estate (Mich.) 1918E-217. 16. Facts incapable of statement. Where the truth must ultimately rest in inference or opinion, and it is impossible by descrip- tion to reproduce the things seen by the witness so as to enable jurors to compre- hend them as they are comprehended by one who has had the benefit of personal obser- vation, it is proper to receive opinion evi- dence. An opinion of one who saw marks on plaintiff's thumb that the marks were teeth marks or were caused by a bite, held admis- 96 ANK CAS. DIGEST (1018C-1918E). sible within this rule. Patterson v. Blatti (Minn.) 1918D-63. 6. Documentary Evidence. 17. Proof of foreign will. Under Shan- non's Code, 3914, providing that wills executed in other states, etc., shall be proved according to the laws of this state, and cer- tified in the manner prescribed by Act Cong. May 26, 1790, c. 11, 1 Stat. 122 (U. S. Comp. St. 1913, 1519), and section 3915, providing that a copy of a will so certified shall be registered in the county where the land lies, and a copy from the books of the register, duly certified, shall be evidence, a certified copy of a foreign will of one of plaintiffs' predecessors in title which was probated by the proper officer in the for- eign state, and a duly certified copy of which, with the certificate of probate, was recorded in Tennessee, is admissible. Fielder v. Pemberton (Tenn.) 1918E-905. 18. Under Shannon's Code, 3914, provid- ing that a foreign will shall be proved ac- cording to the laws of this state, and section 3904, providing that a will not contested may be proved by one of the subscribing witnesses, a certified copy of a foreign will, proved by only one witness, is admissible. Fielder v. Pemberton (Tenn.) 1918E-905. 19. A certified copy of a foreign will, set- ting forth the entire will verbatim, the affi- . davit of subscribing witness, oath and quali- fication of executor, and certificate of sur- rogate that above constituted the will and probate thereof, upon which letters tes- tamentary issued to the executor, sufficiently shows the probate of the will. Fielder v. Pemberton (Tenn.) 1918E-905. 20. Proof of ancient deed. A certified copy of an ancient deed, which had been on record for more than thirty years, without the slightest suspicion or question, was ad- missible, and had the same probative value as proof of recitals as the original would have had if produced. Fielder v. Pember- ton (Tenn.) 1918E-905. 21. Record of marriage license. The rec- ord of a marriage license issued to in- sured, stating he was over twenty-one, is admissible on the issue of his age, it hav- ing been the recorder's duty under a stat- ute not to issue a license to him if under that age, except on consent of another, and to state in the license whether he was of age, and, if not, the name of the person consenting. Armstrong v. Modern Woodmen of America (Wash.) .1918E-263. (Annotated) 22. Physician's death certificate. In an action against a fraternal benefit insurance association, that part of the death certificate of the physician who attended decedent in her last illness, which, after stating that the death was caused by peritonitis, went on to state the contributory cause thereof was abortion, was not inadmissible as hearsay, although the remainder of the certificate reading, "said by decedent to have been per- formed by Dr. -," was properly ex- cluded, since a fair interpretation of the cer- tificate was that the contributing cause of death is primarily within the knowledge of the physician, and is not hearsay. Gil- christ v. Mystic Workers, etc. (Mich.) 1918C- 756. (Annotated) 23. Account books. Point one of the syl- labus in West Virginia Architects & Build- ers v. Stewart, 68 W. Va. 506, reaffirmed and applied, as justifying the admissibility of plaintiff's books of account in evidence to the jury. Parkersburg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 7. Photographs as Evidence. 24. Common photograph. Common photo- graphs may be proved and used in evidence in the same manner as maps or other dia- grams; and they may be verified either by the testimony of the person who took them or by the testimony of others who can state that the object sought to be shown is fairly represented thereby. Davis v. Dunn (Vt.) 1918D-994. 25. Photographs of the plaintiff's arm, properly identified, are admissible to prove identity of other photographs showing a fracture, on which the plaintiff relied, by showing a peculiar formation not usual in the arms of others. Davis v. Dunn (Vt.) 1918D-994. 26. X-ray photograph. While under P. S. 1596, a party has the right to examine the adverse party, he cannot examine him as to an X-ray photographic plate not verified or authenticated by some evidence other than itself, since it is inad'missible as evidence until identified. Davis v. Dunn (Vt.) 1918D- 994. (Annotated) 27. Comparison of X-ray and common photograph. Where the plaintiff sought to show malpractice by X-ray photographs of her arm, it was not error to exclude photo- graphs of an alleged normal arm, not ma- terial to the case, but which would have raised collateral issues, and was of an ex- periment outside the case; admission of such evidence being within the discretion of the court. Davis v. Dunn (Vt.) 1918D-994. 8. Parol Evidence to Vary Written Instru- ments. 28. Where a stock subscription contract recites that the subscribers each agree to pay for the number of shares of stock set op- posite their names, parol evidence of an agreement that no assessment would ever be levied on the unpaid stock, and that they would never be required to pay any more than what they had already paid, is inad- missible. Bergman v. Evans (Wash.) 1918C- 849. (Annotated) 29. Where a sale contract provides that the buyer may have each shipment analyzed before accepting it, evidence of a trade cus- tom, that such provision will not prevent title passing, is inadmissible. Agri Mfsj. Co. v. Atlantic Fertilizer Co. (Md.) 191 8D- 396. 30. Parol evidence to explain writing. The rule excluding evidence of an independ- ent, contemporaneous, oral agreement relat- EVIDENCE. 97 ing to the subject of a written contract inconsistent with the terms of the latter, does not conflict with the rule permitting evidence relating to the subject-matter with which the parties dealt and the object they sought to accomplish as shown by preceding negotiations, not to vary the contract, but to aid in its construction and make plain in what sense the parties used the language. Chaplin v. Griffin (Pa.) 1918C-787. 31. Where a written contract between a trustee and eight stockholders recites the ownership of the shares which are then in the name of the trustee, but does not indicate that they are owned in other than equal amounts by the parties, and authorizes the trustee to pledge the stock for a loan until a majority shall decide to dissolve the pool and provides that the owners shall take up their pro rata shares of the loan and pay the amount due on the stock when the pool shall be dissolved, in an action by the trus- tee against one of the eight members after dissolution of the pool for one-eighth of the loan, an affidavit of defense, setting up a parol understanding that the pro rata lia- bility was to be based on the number of shares in the company which each of the parties owned, and defendant owned less than one-eighth of the shares, and averring tender of plaintiff's share, is sufficient as against a rule for judgment. Chaplin v. Griffin (Pa.) 1918C-787. 32. Showing intent from surrounding cir- cumstances. While an option timber con- tract speaks for itself and cannot be varied by parol evidence as far as its contents are concerned, where it is silent as to the time when the purchaser was to commence to cut the timber, the circumstances surrounding the parties at the time it was made can be detailed, and anything that took place at that time which would tend to show what the parties intended as to the time in which the cutting was to commence would be com- petent to be considered for what it was worth. Berry v. Marion County Lumber Co. (S. C.) 1918E-877. 33. Impeachment of conveyance. Testi- mony of a witness of statements of grantor six years after making deed that the deed was not to give title is incompetent: for parol testimony as to a declaration of the grantor cannot invalidate his prior convey- ance. Campbell v. Sigmon (N. C.) 1918C- 40. 34. Contradicting recitals of deed. Testi- mony of a witness as to statements of a grantor one or two weeks prior to the mak- ing of the deed that he was trying to get the grantee away from his home and tried to fix a plan to do so is inadmissible to contradict the recital of consideration in the deed. Campbell v. Sigmon (N. C.) 1918C- 40. 35. Showing relation of parties to obliga- tion. In an action by a surety for contribu- tion from an alleged cosurety, parol evidence may be admitted to show the actual rela- tion of the parties to the obligation dis- charged by plaintiff. Frew v. Scoular (Neb.) 1918E-511. Ann. Cas. Dig.'1918C-E. 7. 9. Presumptions. As to due care by person killed by falling down elevator shaft, see ELEVATOBS, 2, 3. As to findings in certiorari proceeding, see CEBTIORARI. 1. As to negotiability of lost note, see LOST IN- STRUMENTS, 4. As to validity of ordinance, see MUNICIPAL CORPORATIONS. 14, 15. Creating presumption of survivorship by will, see WILLS, 39, 40, 48. Defects curable by conclusive evidence clause in statute, see STATUTES, 17, 18. Driving on wrong side of street as presump- tive evidence of negligence, see STREETS AND HIGHWAYS, 9. Effect of presumption of death in action on life insurance policy, see LIFE INSUR- ANCE, 17. From destruction of duplicate of will, see WILLS, 12. From failure to find will, see WILLS, 13. In action for death by wrongful act, as to degree of care used by intestate, see DEATH BY WRONGFUL ACT, 10, 11. In favor of award of compensation for user of bridge owned by railroad, see RAIL- ROADS, 13. In favor of common-law marriage, see MAR- RIAGE, 8. In favor of validity of statutes, see CONSTI- TUTIONAL LAW, 28-30. Of conveyance as sale, see MORTGAGES, 4, 5. Of death, see DEATH, 1. Of injury to goods on line of terminal car- rier, see CARRIERS OF GOODS, 11. On appeal, see APPEAL AND ERROR, 67-69.- Validity of subsequent marriage, see MAB- RIAGE. 6. 7. Vesting of title in consignee on delivery of goods to carrier, see CARRIERS OF GOODS, 14. 36. Presumption based on presumption. A presumption must be based on a fact, and not upon inference or upon another pre- sumption. Hays v. Hogan (Mo.) 1918E- 1127. 37. Continuance of meretricious relation- ship. A meretricious relationship between a man and woman is presumed to have con- tinued until the adulterous cohabitation changed from an unlawful to a lawful re- lationship. Howard v. Kelly (Miss.) 1918E- 1230. 38. Receipt of letter. The presumption that a properly mailed letter will, in the due course of mail, reach the person to whom it is addressed has application only where the act of mailing is unquestioned or con- clusively shown. Suits v. Order of United Commercial Travelers (Minn.) 1918E-508. (Annotated) 10. Burden of Proof. 39. How determined. The question of where the burden of proof rests must be determined by the trial court upon the pleadings, and before the introduction of any evidence. McClintock v. McClure (Ky.) 1918E-96. 98 . CAS. DIGEST 11. Weight and Sufficiency of Evidence. 40. Weight of uncontradicted testimony. Where a witness on such trial testified that he saw the chauffeur stop a few feet short of the track before going upon it and then go on to the track, and that he saw the accident from his house, the supreme court cannot say that the testimony was unworthy of be- lief and should have been disregarded by the jury, who saw and heard the witness, on the ground that the witness' house was a quarter of a mile from the scene of the accident, where such distance can only be conjectured from a photograph of the surroundings and there was no other evidence of such dis- tance. Southern R. Co. v. Vaughan (Va.) 1918D-842. 41. Proof of age. Positive testimony of insured's having been born in a certain year, with detail by witness of facts and circumstances, lending support to his mem- ory, is substantial evidence of such fact, pre- venting disturbance of refusal of new trial, asked on the ground of insufficient evidence of such fact. Armstrong v. Modern Wood- men of America (Wash.) 1918E-263. 42. Proof of receipt of letter. The trial court did not err, upon the evidence stated in the opinion, in finding that a letter offered in evidence by defendant was not mailed to or received by the person to whom it was addressed. Suits v. Order of United Com- mercial Travelers (Minn.) 1918E-508. (Annotated) 43. Impeaching evidence Effect as affir- mative proof. Where a witness' testimony on a material point is contradicted by im- peaching testimony of his statements made to witness at another time, such statements are available only for impeachment and not as affirmative evidence. Moseley v. Good- man (Tenn.) 1918C-931. 12. Legislative Power over Rules of Evidence. 44. Creating presumption of fact. While the legislature may declare that certain evidentiary facts shall be prima facie evi- dence, such facts must have some direct and logical tendency to prove the antecedent fact, hence a municipal ordinance declaring that if any person shall alone, or in company with others, loiter or parade back and forth in front of or cause any other person or per- sons to loiter or parade back and forth in front of, or in the vicinity of, any store, fac- tory, works, or place of business, or in front of, or in the vicinity of the home of any person connected with, employed in, or seek- ing employment in any such store, etc., such conduct shall be prima facie evidence of a conspiracy to injure the trade, business, or commerce of the proprietor of the store, etc., thus patrolled, is invalid, because the acts have no tendency to prove a conspiracy to injure the commerce or trade of any per-, son. Hall v. Johnson (Ore.) 1918E-49. EXAMINATION. Of witnesses, see WITNESSES, 8-12. EXCEPTIONS AND OBJECTIONS. Bill of exceptions, see APPEAL AND ERROR, 24- 29. Necessity of exception or objection to raise question on appeal, see APPEAL AND EB- BOB, 89-93. EXCHANGE OF PROPERTY. Commission for procuring, see BROKERS, 3, 6-12. Oral contract for payment of commission for exchange of personal property, for realty as within statute of frauds, see FRAUDS, STATUTE OF, 3. Specific performance of contract for ex- change of land, see SPECIFIC PERFORM- ANCE, 1. EXECUTIONS. See ATTACHMENT; GARNISHMENT. Injunction against execution sale, see IN- JUNCTION, 5-9, 16, 17, 19, 20. 1. Property subject Estate by entireties. Under a trust deed conveying land for the benefit of the grantor and his wife for their lives, with a general power of disposition in the grantor, the estate of the grantor and his wife was an estate by entireties, and not subject to sale under execution. Harris v. Carolina Distributing Co. (N. C.) 1918C-329. 2. Exemptions Construction of statute. Since exemption statutes are remedial in character, they are given a liberal construc- tion. Childers v. Brown (Ore.) 1918D-170. 3. Exemption of team. Under L. 0. L. 227, as amended by Laws 1915, p. 27, ex- empting from execution a team, vehicle, harness, etc., necessary to enable anyone to carry on the occupation by which he habitu- ally earns his living, the debtor may select and reserve a team, vehicle, and harness without being obliged to show that he has no other like property, or to point out other property to the sheriff, even though he owns additional property of the same kind, and the debtor, if owning more than two horses, may select any two. Childers v. Brown (Ore.) 1918D-170. 4. Under such statute, it is essential that the property should have been used exclu- sively to carry on the occupation by which one habitually earns his living, because an occasional use for other purposes will not defeat his right to exemption; and such right is not lost if the owner is not actually using the property in his occupation at the very time of the levy, or if temporarily, he is not engaged in his occupation, and is preserved if he honestly intends to use the property with- in a reasonable time to carry on his occu- pation. Childers v. Brown (Ore.) IfllSD- 170. (Annotated) 5. Under L. 0. L. 227, as amended by Laws 1915. p. 27, making the team, vehicle, 'harness, etc.. necessary to enable any person to carry on the trade, occupation, or profes- EXECUTOES AND ADMINISTEATOES. sion by which he habitually earns his living exempt from execution, the term "necessary" signifies "reasonably necessary" or "con- venient" or '''suitable," and does not mean ''indispensable'' or "absolutely necessary;" and, standing alone, the word "occupation" means the principal business of one's life, habitual or stated employment, vocation, calling, trade, the business in which one principally engages to secure a living, the employment by which he generally gets his living, and includes any employment in which a .person is engaged to procure a living. Childers v. Brown (Ore.) 1918D-170. (Annotated) 6. In replevin for a team, wagon, and har- ness attached by defendant sheriff, the tak- ing of which was justified by his answer, a reply claiming an exemption and right to a return of the property under the statute (L. O. L. 227, as amended by Laws 1915, p. 27), exempting from execution a team, vehicle, harness, etc., necessary to enable one to carry on the occupation by which he hab- itually earns his living, showing that the property was being used by plaintiff for the purpose of earning a living for the support of his family, and that it was the only property of the kind which he could use, and that it had been habitually used for that purpose, was sufficient after verdict. Chil- ders v. Brown (Ore.) 1918D-170. 7. Waiver of exemption. The right of ex- emption from execution is a privilege which may be waived by the consent of the debtor, or by his failure to assert his rights. Chil- ders' v. Brown (Ore.) 1918D-170. 8. Under L. O. L. 227, as amended ty Laws 1915, p. 27. exempting from execution a team, vehicle, harness, etc., necessary to enable one to carry on his occupation, if selected and reserved by the judgment debt- or at the time of the levy or as soon there- after before sale as it shall be known to him, a failure to select exempted property at the exact time of the levy, even though the debt- or is present, will not alone operate as a waiver of his right, as the word "at," when used in reference to time, does not always mean the exact moment or day, but may express nearness and proximity, and conse- quently may denote a reasonable time, and as the words "as soon as" likewise have a re- stricted and an unrestricted signification; so that the debtor, if he acts before sale, may assert his right of exemption within a rea- sonable time after the levy becomes known to him, whether he was present or absent at the time of the seizure. Childers v. Brown (Ore.) 1918D-170. 9. Burden of showing exemption. A sheriff's seizure on attachment cannot be avoided, unless the debtor alleges and proves a situation bringing the property within the exemption statute, and avers and establishes everv fact essential to the exemption. Chil- ders v. Brown (Ore.) 1918D-170. EXECUTORS AND ADMINISTRA- TORS. 1. Appointment and Removal, 99. 2. Title to Estate, 100. 3. Assets of Estate, 100. 4. Rights and Liabilities, 100. 5. Sale of Decedent's Realty, 100. 6. Accounting, JOO. 7. Distribution, 100. See DESCENT AND DISTRIBUTION; WILLS. Executor as trustee within rule that bar of statute against trustee bars right of cestui que trust, see LIMITATION OF AC- TIONS, 3. 1. Appointment and Removal. 1. Right of executor to appointment. Un- der Rev. St. 1909, 14, 17, 19, 50, touch- ing the granting of letters of administration to executors, providing who may not act as executors, and providing for the revocation of letters of administration for certain causes, the right to letters testamentary of a party named as executor in a will is absolute, unless other facts appear which pre- clude him from asserting his original right, and mandamus is a proper remedy to com- pel the probate court to grant such letters. State v. Holtcamp (Mo.) 1918D-454. 2. Renunciation of right. One named as executor in a will, though having the abso- lute right to letters testamentary upon pro- bate, if not disqualified by the statutes may renounce his rights by express renunciation or by acts and conduct in pais. State v. Holtcamp (Mo.) 1918D-454. (Annotated) 3. Where the executor named in the will of an Ohio decedent, after qualifying as such in Ohio, resigned generally, not stating that he was resigning only in Ohio, and also re- signed as director in the corporation in which the Missouri assets of the estate were prin- cipally invested, avowedly severing all his relations with the Missouri estate, writing a letter to testator's widow clearly indicating his intention to have nothing to do with the estate, and, though a resident in the city in Missouri where the property was lo- cated, taking no interest therein for three months, nor making any effort in Missouri to file the will or qualify thereunder, which was finally presented by another, the probate court is justified in finding that the executor had renounced his right to act as such in Missouri. State v. Holtcamp (Mo.) 1918D- 454. (Annotated) 4. The exercise of judicial discretion, such as the determination by the probate court of whether the executor named in a will has renounced in pais, cannot be controlled by mandamus. State v. Holtcamp (Mo.) 1918D- 454. (Annotated) 5. Effect as to ancillary jurisdiction. An executor's renouncement or resignation in the domiciliary jurisdiction of testator termi- nates- his right to act in other jurisdictions under ancillary letters. State v. Holtcamp (Mo.) 1918D-454. (Annotated) 6. An executor named in the will of an Ohio decedent who resigned generally, after qualifying in Ohio, is not entitled to appoint- ment as executor in Missouri after the 100 A.\X. CAS. DIGEST (1918C-1918E). probate court, acting on his renunciation, has appointed an administrator in his stead. State v. Holtcamp (Mo.) 1918D-454. (Annotated) 7. Resignation in ancillary jurisdiction. The right of renouncement of a person named in a will as executor is available only in the tribunal of the testator's domicil, and, after an executor has qualified in such tri- bunal, his resignation in an ancillary juris- diction is void. State v. Holtcamp (Mo.) 1918D-454. (Annotated) 8. Appointment of administration after re- nunciation of executor. The probate court, in appointing an administrator, after re- nunciation by the executor named as such in the will, must determine whether there has been a renunciation, in which matter it exercises a discretion and performs a judicial function. State v. Holtcamp (Mo.) 1918D- 454. (Annotated) 2. Title to Estate. t 9. Under the statutory provisions and procedure relative t6 the estates of decedents, the title to real estate vests in the heirs and devisees at the moment of the death of the testator or intestate, subject only to the right of possession of the executor or admin- istrator under Rev. Laws, 5950, for the payment of the debts and expenses of ad- ministration, with the right in the adminis- trator to possession until the estate is set- tled or delivered over to the parties en- titled by the "order of the probate court. Wren v. Dixon. (Xev.) 1918D-1064. 10. Property outside jurisdiction. An ex- ecutor duly qualified in testator's domiciliary jurisdiction succeeds to title of all of tes- tator's estate, whenever situated, and con- tinues to hold such title until an ancillary executor is appointed in a foreign jurisdic- tion, when the title of the estate in the an- cillary jurisdiction vests in the latter. State v. Holtcamp (Mo.) 1918D-454. 11. Action by heirs to recover realty. Where an administrator or executor has been appointed, and the estate is in the course of probate, it is the right of the heirs to maintain an action as against third per- sons for the possession of the realty. Wren v. Dixon (Nev.) 1918D-1064. 3. Assets of Estate. 12. Money in hands of heirs. The ques- tion of the obligation of one or more of the heirs of an estate to collate money paid to them, by consent of their coheirs, prior to the appointment of the executor, is one which the executor may leave to the heirs for settlement. Pons's Succession (La.) 1918D-939. 4. Rights and Liabilities. 13. False representation by agent. An administrator selling his decedent's goods through an agent is liable for the acts of the agent done within the scope of his authority, including false representations made to the buyers as to the condition and kind of the goods. Harlow v. Perry I.Me.) 1918C-37. 5. Sale of Decedent's Realty. 14. Interest of widow. Where a testator ijives to his wife a life estate in all his property, a power of sale given to execu- tors cannot be construed to deprive her of her lite estate, or dispose of property with- out her joining in the deed. Cross v. l'.u>- kirk-Rutledge Lumber Co. (Tenn.) 1918D- 983. 6. Accounting. 15. Persons entitled to object. Where the (accounts of executors, who paid certain taxes, were duly settled, testamentary trus- tees, who simply received the residue of the estate, have no right to request instruc- tions on the propriety of such payments. Parkhurst v. Ginn (Mass.) 1918E-982. 7. Distribution. 16. Finality of decree. After final distri- bution it must be presumed that the decree therefor was duly rendered, and such de- cree becomes final against one suing the executrix for accounting, claiming under an alleged unprobated codicil devising plain- tiff money, unless facts alleged disclose fraud of the executrix in procuring the decree. Davis v. Seavey (Wash.) 1918D-314. 17. Ground for vacation. That the execu- trix failed to present true facts as to who was entitled to property on final distribu- tion hearing is no ground for setting aside a final decree rendered on due notice, being in effect a collateral attack. Davis v. Seavev (Wash.) 1918D-314. 18. To warrant setting aside decree for final distribution, rendered on due notice, fraud alleged on part of executrix must relate to preventing claimant from appear- ing and setting up her claim. Davis v. Sea- vey (Wash.) 1918D-314. 19. Where final decree of distribution un- der will is made, and beneficiary under an alleged unprobated codicil makes no claim or objection for over a year, such beneficiary has no standing under Rein. Code 191"). $ 466, requiring petitions to vacate judgments to be served on the adverse party within one year. Davis v. Seavey (Wash.) 1918D- 314. (Annotated) 20. Under Rem. Code 1915, 1307, pro- viding for will contests within one year alter probate or rejection, where final decree of distribution under will was made, and the beneficiary under an alleged unprobated codi- cil made no claim or objection for over a year, her suit for accounting was not a will contest, and she can have no relief al- though the existence of the codicil was con- cealed by the executrix. Davis v. Seavey (Wash.) 1918D-314. (Annotated) EXECUTORY DEVISES. See REMAINDERS', 1, 2. EXECUTORY LIMITATIONS FACTORS. 101 EXECUTORY LIMITATIONS. Dower in lands subject to executory limita- tion, see DOWEB, 1-3, 5. EXEMPLARY DAMAGES. See DAMAGES, 3. EXEMPTIONS. From execution, see EXECUTIONS, 2-9. From inheritance taxes, see TAXATION, 55-58. From taxation for special assessments, see TAXATION, 46. From taxation generally, see TAXATION, 21- 33. EXHIBITS. Incorporation of exhibits in record on ap- peal, see APPEAL AND ERROR, 19-21. Necessity for attaching will as exhibit to deposition referring thereto, see DEPOSI- TIONS, 1. EXPERIMENTAL EVIDENCE. See EVIDENCE, 10, 11. EXPERTS. Expert evidence, see EVIDENCE, 12-14. EXPLOSIONS AND EXPLOSIVES. Judicial notice of fact of unexplained explo- sions, see EVIDENCE, 1. 1. Municipal regulation of storage. A municipality is not estopped from passing an ordinance prohibiting keeping of gasolene, etc., in quantities, within 300 feet of a dwell- ing, etc.. by having once required the tanks of an oil company in the municipality to be moved to an approved site, although such prior removal was attended with expense to the oil company. Pierce Oil Corp. v. Hope (Ark.) 1918E-143. (Annotated) 2. Such an ordinance is authorized by Kir- by's Dig. 5438, 5439, authorizing munic- ipalities to regulate the keeping of combus- tibles, etc. Pierce Oil Corp. v. Hope (Ark.) 1918-143. (Annotated) 3. A municipality is not deprived of its power to ordain that gasolene, etc.. shall be stored in a certain manner by the fact that oil companies affected have provided facili- ties which, if properly used, will render their tanks harmless; a municipality having the right to use its judgment as to the amount of risk involved. Pierce Oil Corp. v. Hope (Ark.) 1918E-143. (Annotated) 4. Leaving explosives accessible to infants. It is actionable negligence to leave bombs or other explosives in a position where they are liable to become exploded by children to their injury. Sroka v. Halliday (R. I.) 1918D-961. 5. Owner of business mining marl one- fourth of a mile from a station and town, who maintained an unlocked shed in which dynamite caps were stored, around which children w r ere seen playing, and to which a path led from the road., was liable when a seven year old boy took dynamite caps from the shed and was injured by the ex- plosion of one of them. Krachanake v. Acme Mfg. Co. (N. C.) 1918E-340. EXPRESS COMPANIES. Damages recoverable for delay in transporta- tion of moving piciture films, see CAR- RIERS OF GOODS, 21. Liability for deviation from agreed method of transportaion of horses, see CARRIERS OF LIVE STOCK, 1. EXTENSION OF TIME. As consideration for contract of suretyship, see SURETYSHIP, 2, 3. As discharging accommodation maker, see BILLS AND NOTES, 1, 2. EXTRADITION. 1. Trial for other offense. Where a per- son is extradited to Canada from the United States on a charge of fraud by instigating the publication of a false statement in a certain newspaper and is convicted in Cana- da of the offense of fraud in concurring in the publication of the same false statement in another newspaper, the conviction should be quashed as being for an offense other than the one on which the warrant for ex- tradition issued. Buck v. The King (Can.) 1918D-1023. (Annotated) 2. Person not in demanding state at time of offense. Although the federal law does not provide for the surrender by a state as a fugitive from justice of one who has violated the criminal laws of another state without having been present therein, and although in the absence of state legislation no authority exists for such surrender, nevertheless, where, in the absence of any local statute, a person is surrendered by one state to another as a fugitive from justice, the fact that the accused had not been in the demanding state at the time of the al- leged offense, or since then, does not deprive its courts of jurisdiction to try him there- for, nor does it show such an abuse of process as to warrant the dismissal of the case against him. State v. Wellman (Kan.) 1918D-1006. (Annotated) FACTORS. See BROKERS. 102 AXX. CAS. DIGEST (1918C-l'.'lsK 1. Right to deny title of consignor. A factor or commission merchant is both a bailee and a sales agent, and is estopped from attacking the title of the consignor to the proceeds of property consigned to and sold by him until he has delivered such pro- ceeds to the consignor. Blackorby v. Friend (Minn.) 1918E-1199. (Annotated' 2. There are various exceptions to the above rule, as where the bailee has yielded to a paramount title asserted by a third party without his connivance, or where a fraud is being perpetrated upon him. Black- orby v. Friend (Minn.) 1918E-1199. (Annotated) 3. Defendant, a commission merchant, sold a carload of stock consigned to it by plain- tiff and received the proceeds thereof which it refuses to deliver to plaintiff. The case is not within any of the exceptions to the above rule and defendant is estopped from denying plaintiff's title to such proceeds. Blackorby v. Friend (Minn.) 1918E-1196. (Annotated) himself and all the defendants, except one, is admissible. People v. Brady (111.) 1918C- 540. 4. Evidence, in a trial on an indictment for obtaining money and property from a cer- tain named person by means of the confidence game, is held to sustain a conviction. People v. Brady (111.) 1918C-540. FARES. See CARRIERS OF PASSENGERS. FATHER. See PARENT AND CHILD. FEDERAL BOILER INSPECTION ACT. See MASTER AND SERVANT, 4, 5. FACTS. Review of facts on appeal, see APPEAL AND ERROR, 43-57. FAITH AND CREDIT. Effect of foreign judgment against prin- cipal defendant, see GARNISHMENT, 3. Of foreign judgment, see CONFLICT 01 LAWS, 5. FALSE PRETENSES. 1. Confidence game. Under Cr. Code, 98, declaring that anyone obtaining from another any money or property by use of any false or bogus check, instrument, or devise, com- monly called the confidence game, shall be imprisoned, and 99, providing an indict- ment charging that accused did unlawfully and feloniously obtain from a certain per- son his money or property by means and by use of the confidence game shall be suffi- cient, an indictment need not set out the acts constituting the offense. "People v. Brady (111.) 1918C-540. 2. Under such provisions, together with Criminal Code, 408, providing that every indictment shall be sufficient which states the offense in the terms and language of the statute creating the offense or so plainly that the nature of it may be understood by the jury, an indictment, charging the obtaining of property by means of the confidence game, without describing the property alleged to have been obtained, was sufficient, as the crime does, not consist in the obtaining of any particular amount of money or property, but in obtaining money or property without reference to its kind. People v. Brady (111.) 10180-540. 3. In such trial the testimony of a witness as to a precisely similar transaction between FEDERAL EMPLOYERS' LIABILITY ACT. Lien of attorney in action brought under act, see ATTORNEYS, 17. FEDERAL HOURS OF SERVICE ACT. Unavoidable accident causing delay as ex- cusing violation, see LABOR LAWS, 1. FEDERAL QUESTION. Raising of federal question by assertion in opinion of appellate court, see APPEAL AND ERROR, 8. FEDERAL RESERVE BANK ACT. Validity and construction of act, see BANKS AND BANKING, 1-3. FEES. Constitutionality of statute requiring pay- ment of fees by candidates, see ELEC- TIONS, 3. FENCES. /Submission of proposition for adoption of fence law, see ELECTIONS, 15, 16. 1. Validity of county fence law. Pub. Loc. Laws, c. 505, providing the method and amount of taxation for the construction of county fences, is invalid as in violation of Const, art. 7, 9, providing that all taxes shall be uniform and ad valorem on all prop- erty except property exempted by the consti- tution, in that it attempts to exempt prop- FERRIES FIRE INSURANCE. rty of natural persons. Keith v. Lockhart (N. C.) 1918D-916. FERRIES. 1. Care required. Ferrymen, by reason of the nature of the franchise they exercise, and the character of the services they ren- der to the public, are held to extreme dili- gence and care, and to a stringent liabil- ity for any neglect or omission of duty, which is the rule of reasonable care for ferrymen, since the term is relative. Meisle v. New York Cent. etc. R. Co. (N. Y.) 1918E- 1081. (Annotated) 2. Strict diligence and a due regard for the value of human life, required of a ferry- man by the rule of reasonable care, do not make him an insurer of the safety of his passengers. Meisle v. New York Cent. etc. R. Co. (N. Y.) 191SE-1081. (Annotated) 3. It is not necessary that a railroad op- erating a steam ferryboat should have notice that failure to put up the chains on the ferryboat at the end of the boat will result in an accident, if the possibility of the acci- dent is clear to the ordinarily prudent eve. Meisle v. New York Cent, etc. R. Co. (N. Y.) 1018E-1081. (Annotated) 4. Supervision of automobiles. A ferry- man, as part of his general duty to exer- cise reasonable care, is under duty to recog- nize that automobiles, while not inherently dangerous, may, from conditions of place and circumstances, became dangerous instru- mentalities. Meisle v. New York Cent. etc. R. Co. (N. Y.) 1918E-1081. (Annotated) 5. It is the duty of a ferryman transport- ing automobiles to provide a practical bar- rier against the cars running forward and injuring a passenger, and to exercise reason- able supervision -over the automobiles while on the ferryboat. Meisle v. New York Cent, etc. R. Co. (N. Y.) 1918E-1081. (Annotated) 6. Question for jury. In an administra- trix's action against a railroad operating a steam ferryboat for death of her intestate by drowning when an automobile on the boat i m forward and knocked decedent into the river, defendant having interposed no obstacle to the progress of the car once it was started, the question of defendant's negligence is held to be for the jury. Meisle v. Xew York Cent. etc. R. Co. (N. Y.) 191SE- 1081. (Annotated) FILMS. Damages for delay in transportation, see CARRIERS OF GOODS, 21. FINAL JUDGMENT. Finality of order of intermediate appellate court, see APPEAL AND ERROR, 9. FINDINGS. See VERDICT. Review of findings of court, see APPEAL AND ERROR, 49, 50. Of intermediate appellate court, see APPEAL AND ERROR, 53-57. Necessity as to issue involving rights ex- cluded by laches, see TRIAL, 11. FIRE INSURANCE. 1. Insurable Interest, 103. 2. Construction of Policy: a. In General, 103. b. Particular Provisions: (1) Sole and Unconditional Owner- ship, 104. (2) Provision against Assignment. 104. (3) Iron-safe Clause, 104. (4) Provision against Keeping Cer- tain Articles, 104. 3. Cancellation of Policy, 105. 4. Actions, 105. See INSURANCE. Validity of statute creating state insurance board and requiring fire insurance com- panies to file schedule of rates, see IN- SURANCE, 10. 1. Insurable Interest. 1. Any person has an insurable interest in property if he receives a benefit, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of, the property itself. Plum Trees Lime Co. v. Keeler (Conn.) 1918E-831. 2. Interest of lessee. Where a quarry ten- ant has erected buildings at a cost of $2,- 500 and has a lease which will run for eight years requiring it to keep the buildings and machinery in good repair, it has an insur- able interest in the buildings. Plum Trees Lime Co. v. Keeler (Conn.) 1918E-831. (Annotated) 3. Estoppel of lessor to deny insurable in- terest of lessee. Where the lease will ex- pire in eight years and the tenant has built new buildings to make the premises tenant - able and has taken out insurance which the insurer required to be in the landlord's name, and on loss the landlord collects the insur- ance after having refused to insure his own buildings, the value of plaintiff's buildings being greater than the amount of insurance, it is too late for the landlord to claim that the tenant had no legal or equitable right to recover the insurance money. Plum Trees Lime Co. v. Keeler (Conn.) 1918E-831. 2. Construction of Policy. a. In General. 4. Ignorance of insured of terms of policy. The neglect of the insured to become ac- quainted with the provisions of his fire insur- AXX. CAS. DIGEST (1918C-1918E). ance policy which he seeks to enforce cannot relieve him of the binding effect of its cove- nants, in the absence of any evidence im- peaching its validity. Miller v. Home Ins. Co. (Md.) 1918E-384. 5. Misrepresentations. A fraudulent mis- representation avoiding a fire insurance policy must have been knowingly false, have misled the insurer, and increased the risk. Waller v. New York Ins. Co. (Ore.) 1918C- 139. 6. Defendant fire insurance company's al- legations that plaintiff secured insurance on a house which defendant had previously re- fused to insure by misstating its name and location, is held to be insufficient where facts showing the materiality of such representa- tions or the resulting damage to defendant were not stated. Waller v. New York Ins. Co. (Ore.) 1918C-139. b. Particular Provisions. (1) Sole and Unconditional Ownership. 7. A party in possession under a partly performed contract for the purchase of realty is the sole and unconditional owner in fee simple within the Oregon standard fire in- surance policy. Waller v. New York Ins. Co. (Ore.) 1918C-139. (Annotated) 8. A fire insurance policy upon a building, containing a stipulation that the policy "shall be void ... if the interest of the in- sured be other than unconditional and sole ownership," is not invalidated because of an outstanding naked legal title in another where the insured has the equitable title, the entire beneficial ownership of the prop- erty, and is in undisputed possession of the same. Hankins v. Williamsburg City F. Ins. Co. (Kan.) 1918C-135. (Annotated) (2) Provision against Assignment. 9. A policy of fire insurance provided that it should become void if the property insured was "assigned" without the permission of the insurer, and further that any change material to the risk should avoid the policy unless the company was promptly notified thereof. The insured gave a bill of sale of the insured property as security for an in- debtedness, retaining possession. It is held: (1) The insured property was not "as- signed" in violation of the provision of the policy by giving the bill of sale, which was in legal effect a chattel mortgage. (2) Whether there was a change material to the risk was a question for the jury, and its finding thereon is sustained by the evi- dence. King v. Hartford F. Ins. Co. (Minn.) 1918D-861. (Annotated) (3) Iron-safe Clause. 10. Where in an inventory taken under the terms of a policy of insurance providing that, "The assured will take an itemized inventory of stock hereby insured, . . ."it appears that approximately one-ninth of a stock of merchandise covered by the policy was not invoiced in a proper or approved manner, in that some of the articles were set down in lots or groups, and not by items, but that the remainder of such stock was described there- in item by item, with the value set opposite, held, that such deficiency did not pervade the whole inventory or constitute its controlling feature. Held, further, that inasmuch as the greater proportion of the stock, properly in- ventoried, amounted in value to approximate- ly $42,000, and recovery was had for but $23,000, the inventory in the instant case substantially meets the requirements of the policy. Hanover F. Ins. Co. v. Eisman (Okla.) 1918D-288. 11. The provision of a policy of insurance that "the assured will keep a set of books, which shall clearly and plainly present a complete record of the business transacted, . " is substantially complied with by the assured keeping a set of books clearly showing such matters to men of ordinary intelligence. Evidence examined, and held sufficient to show a substantial compliance with such provisions. Hanover F.'Ins. Co. v. Eisman (Okla.) 1918D-288. 12. Under covenants in a policy of fire in- surance on a stock of merchandise that in- sured would take a complete inventory of stock on hand at least once a year, and un- less such an inventory had been taken with- in a year, would take an inventory within thirty days of its issuance, insured, who on his purchase of the stock two weeks before the date of the policy makes a complete and itemized list of the various goods in the stock indicating the amount and value in detail as a basis for his purchase, makes an inventory within the policy, and within the accepted definition of "inventory" as an itemized list or schedule of articles, usually including a notation of their estimated values. Miller v. Home Ins. Co. (Md.) 1918E-384. (Annotated) 13. Where such inventory was made with- in the covenants of the policy, but the in- sured who was expressly required by the policy to keep a set of books during the con- tinuance of the insurance and to keep them in a fire proof safe, failed to keep any books, his consequent inability to produce such books after the fire avoided the policy. Mil- ler v. Home Ins. Co. (Md.) 1918E-384. (Annotated) (4) Provision against Keeping Certain Arti- cles. 14. "Storing" of gasolene. Gasolene was not ''stored," within the meaning of the terms of the policies of insurance involved, by keeping a small quantity thereof in a closed metallic container on the premises for the purpose of occasionally cleaning the wearing apparel of the assured; and the use of a candle in a room where such gaso- lene was found did not avoid the policy. TTanover F. Ins. Co. v. Eisman (Okla.) imSD-288. (Annotated) FIRES FIXTURES. 105 3. Cancellation of Policy. 15. Sufficiency and effect of notice. Un- der Insurance Law (Consol. Laws, c. 28), 122, providing that any insurer shall can- cel ~&nj policy of insurance upon request of insured and return the amount of premium paid, less the customary short rate premium, notwithstanding anything in the policy to the contrary, a letter written by insured, stating that he wished to cancel a specified policy, to take effect at once, and asking the insurer to give the matter immediate attention, is a sufficient notice of cancella- tion to effect a cancellation; there being no merit in the contention that insured merely expressed a wish to cancel the policy, rather than a request for its cancellation, within the meaning of the statute. Gately-Haire Co. v. Niagara F. Ins. Co. (N. Y.) 1918C- 115. (Annotated) 16. Under Insurance Law, 122, and a provision of a fire insurance policy that the policy should be canceled at any time on re- quest of insured, or by the company on five days' notice, and that, if the policy should be canceled, the unearned portion of the premium should be returned on surrender of the policy, the company retaining the cus- tomary short rate, a written request by in- sured for cancellation of a policy effects a cancellation, though the policy is not sur- rendered, and the unearned portion of the premium is not returned, as these are not conditions precedent to a cancellation. Gate- ly-Haire Co. v. Niagara F. Ins. Co. (X. Y.) 1918C-115. '(Annotated) 17. Under Insurance Law 122, a written request by insured that a policy be can- celed effects a cancellation 'at once, without any action by the insurer. Gately-Haire Co. v. Niagara F. Ins. Co. (N. Y.) 1918C-115. (Annotated) 4. Actions. 18. Parol evidence to vary policy. The parol evidence rule in all its vigor applies to fire policies, and cannot be resorted to to vary the terms of the written policy save in case of latent ambiguity. Connecticut F. Ins. Co. v. W. H. Roberts Lumber Co. (Ya.) 1918E-1045. 19. Extent of loss Profits. A fire policy, insuring lumber and staves owned or held in trust or commission by plaintiff, while stacked or piled at its various mill sets or yards or shipping points, does not extend to plaintiff's profits which might result from its handling of lumber. Connecticut F. Ins. Co. v. W. H. Roberts Lumber Co. (Va.) 1918E-1045. (Annotated) 20. A fire policy covering any interest plaintiff might have in lumber at the time of its destruction does not include profits; therefore, where an agent of the insurer and plaintiff agreed that the policy should cover any such interest, parol evidence show- ing that fact is not admissible to show that the policy included profits; there being no meeting of the minds of the parties on that question. Connecticut F. Ins. Co. v. W. H. Roberts Lumber Co. (Va.) 1918E-1045. 21. Instructions. Instructions given and refused examined. Held, there was no pre- judicial error therein. Hanover F. Ins. Co. v. Eisnuin (Okla.) 1918D-288. FIRES. Liability of railroad for damages for per- sonal injuries caused by fire started by engine, see RAILROADS, 21, 22. FIREWORKS. Liability of committee having charge of dis- play of fireworks for injuries to spec- tators, see THEATERS AXD AMUSEMENTS, 5-12. FIXTURES. 1. Trade fixtures. What constitutes trade fixtures is a question of intention to annex, and not as to the character of the physical annexation to the realty, and is usually a mixed question of law and fact for the jury. McC'lintock, etc. Co. v. Aetna Explosives Co. (Pa.) 1918E-1078. 2. Implied right to remove. In the ab- sence of an express contract as to trade fixtures, there is an implied contract per- mitting the tenant to remove them at the proper time and in a proper manner. Mc- Clintock, etc. Co. v. Aetna Explosives Co. (Pa.) 1918E-1078. 3. Stipulation in lease for removal. Par- ties to a lease may stipulate what machin- ery and fixtures may be removed by the tenant, and, when they have done so, such stipulations are controlling. Bache v. Cen- tral Coal. etc. Co. (Ark.) 1918E-198. 4. Where a lease reserves to the lessee the right to remove "machinery, apparatus and other things of that character," the consid- eration of the question of trade fixtures be- comes unnecessary, as the rights of the parties with respect to removal of such prop- erty are covered by the contract. McClin- tock, etc. Co. v. Aetna Explosives Co. (Pa.) 1918E-1078. 5. Under a lease reserving to the lessee the right to remove ''machinery, apparatus and other things of that character," under which the lessee, engaged in working out an experimental process for the manufacture of benzine and gasolene, constructed furnaces connected with various appliances, including a framework to carry pipes and support the furnaces, etc., the term "apparatus" will in- clude mechanical devices adapted as a means to an end, any complex instrument or ap- pliance for the specific action or operation i m- hiding mechanical and chemical instru- ments, a full collection or set of implements for a given duty, experimental or operative, and in connection with the provision as to other things of like character, entitled the lessee to remove such furnaces and the build- ing necessary for their proper protect inn and operation; the fact of the roof covering not 106 ANN. CAS. DIGEST (1918C-1918E). changing their character so as to make it dis- tinct from the contents inclosed so as to pre- clude its removal. McClintock, etc. Co. v. Aetna Explosives Co. (Pa.) 1918E-1078. (Annotated) 6. In a suit in replevin by the successor of the lessee of a coal mine to recover posses- sion of certain property belonging to the mine and owned by the lessee, where the lease provided that at expiration the lessee might remove all machinery, pit cars, mine rails, etc., provided it had carried out the terms of the contract, the question whether the tipple was a part of the mining equip- ment, and removable as such under the lease, is properly submitted to the jury; "machin- ery" being a more comprehensive word than ''machine," and including appurtenances necessary to the working of a machine, since, under the mining law, mining machinery and apparatus are regarded as personalty of the lessee that may be removed in the absence of express stipulation to the contrary, a stipulation not contained in the lease. Bache v. Central Coal, etc. Co. (Ark.) 1918E-198. (Annotated) 7. Time for removal. Where the lease of a coal mine provided that the lessee might remove machinery, etc., at expiration of the lease, if it had carried out the terms of the contract, not expressly stipulating that the right must be exercised before expiration, and the successor of the lessee proceeds ex- peditiously to remove its property four days before a ten-day extension of the lease ex- pires, as soon as it is advised that a pro- spective purchase of the property by the lessor is off, its right to remove its prop- erty does not terminate instantly upon ex- piration of the lease. Bache v. Central Coal, etc. Co. (Ark.) 1918E-198. 8. Question of law. So far as the question of the tenant's right to remove fixtures is governed by the express provisions of the lease, it is a question of law. McClintock, etc. Co. v. Aetna Explosives Co. (Pa.) 1918E- 1078. therein. Perry v. Diamond Ice, etc. Co. (Wash.) 191SC-891. (Annotated) 3. The real issue being whether eggs ac- quired their foreign and unnatural flavor after being placed in the defendant's cold storage plant, any error in admission of evidence of test of the eggs before stored for natural deterioration is not prejudicial. Per- ry v. Diamond Ice, etc. Co. (Wash.) 1918C- 891. (Annotated) 4. Evidence in an action for injury to eggs in cold storage is held to be sufficient to show that when stored they were free from unnatural flavor or odor, and acquired it while in the warehouse, making the ques- tion of negligence as the producing cause one for the jury. Perry v. Diamond Ice, etc. Co. (Wash.) 1918C-891. (Annotated) FORECLOSURE. Of mortgages, see CHATTEL MORTGAGES, 4-8; MORTGAGES, 10-14. Of pledge, see PLEDGE, 4. FOREIGN CORPORATIONS. See CORPORATIONS, 45-53. Foreign benefit society as subject to local statutes, see BENEFICIAL ASSOCIATIONS, 2. Priority of claim for wages against insolvent foreign corporation, see CORPORATIONS, 43. FORFEITURE, Of benefits of employees of relief society, see MASTER AND SERVANT, 27. Of charter of railroad company, see EAIL- ROADS, 1-3. Waiver of forfeiture of insurance policy, see LIFE INSURANCE, 3. FOOD. 1. Allegations of negligence in storage. A complaint, alleging that plaintiff's eggs, when placed in storage in defendant's ware- house, were fresh and in good condition, and while stored there became tainted with a foreign and unnatural flavor, is a sufficient pleading of negligence, at least with an al- legation that plaintiff does not know the specific acts of defendant's negligence; proof thereof making a prima facie case. Perry v. Diamond Ice, etc. Co. (Wash.) 19180-891. i (Annotated) ; 2. Evidence. On the issue of the plain- tiff's eggs having acquired their foreign and unnatural flavor while in the defendant's cold storage plant, evidence that another's eggs placed in the same room with the plaintiff's eggs came out with the same for- eign flavor is 'admissible, though it be not shown that they did not have it when placed FORMAL PARTIES. See PARTIES TO ACTIONS, 1. FORMER ADJUDICATION. See JUDGMENTS, 10-17. Decree in divorce suit as conclusive of ques- tion of alimony, see DIVORCE, 6-9. FORMER JEOPARDY. 1. Identity of offenses. Whether an indict- ment is for the same offense ,as that charged in a former indictment under which there has been a final judgment is not determined by an inspection and comparison of the indict- ments under a plea setting up the former judgment in bar. People v. Brady (El.) 1918C-540. FOURTEENTH AMENDMENT FRAUD. 107 2. On the trial under such plea the party accused and the particular offense may be shown bv parol testimony. People v. Brady (111.) 1918C-540. 3. Nolle prosequi. After a jury is empan- eled and sworn, the prosecutor cannot nolle pros, the indictment or any count without the consent of accused. People v. Brown (111.) 1918D-772. 4. Necessity of plea. A defense of former acquittal or conviction may be made under the plea of not guilty. People v. Brady (HI.) 19180-540. FOURTEENTH AMENDMENT. Assessment for improvements by front foot rule as violating, see TAXATION, 49. Authority of supreme court to supervise state exercise of police power, see CON- STITUTIONAL LAW, 4. Charter provision entitling only resident owners to sign remonstrance against pub- lic improvement as conflicting with, see TAXATION, 47. FRANCHISES. See CORPORATIONS; FERBIES; RAILROADS; STREET RAILWAYS. Franchise regulating placing of wires as af- fecting liability of electric company for injuries, see ELECTRICITT, 11. 1. Extension of pre-existing right. Where a single spur track was put in when horse power was used by a street railway before the adoption of the present constitution re- quiring franchises upon public streets to be sold to the highest bidder, a subsequent con- sent by the city to a double spur track with a loop, necessary on account of the substitu- tion of motor power, is not the granting of an additional franchise, but the conforming of an old turnout to modern conditions, to which the street railway possesses a prop- erty right. Dayton v. South Covington, etc. St. R. Co. (Ky.) 1918E-229. FRAUD. 1. What Constitutes: a. In General, 107. b. Misrepresentation as to Value, 107. c. Violation of Rules in Voting Contest, 108. 2. Actions, 308. See FRAUDULENT SALES AND CONVEYANCES; RESCISSION, CANCELLATION AND REFOR- MATION. As ground for setting aside award of arbitra- tors, see ARBITRATION AND AWARD, 3. Fraudulent misrepresentation avoiding fire insurance policy, see FIRE INSURANCE. 5, 6. In agreement with subscribing stockholders, see CORPORATIONS, 30. In procurement of contract for purchase of land as affecting bona fide purchaser, sea VENDOR AND PURCHASER, 20-23. In sale of public lands, see PUBLIC LANDS, 2, 3, 10-21. Secret intention to refuse marital inter- course as fraud, see MARRIAGE, 11. Use of terms "fraud" and "fraudulent" in instructions, see INSTRUCTIONS, 1. What constitutes undue influence, see UN- DUE INFLUENCE, 1, 2. 1. What Constitutes. a. In General 1. Intent to deceive. To constitute fraud, it is unnecessary that a statement to made with the intention to deceive, if it is a state- ment of fact, or a statement purporting to be a fact but not true as a matter of fact. Me- Neer v. Nor fleet (Miss.) 1918E-436. 2. Necessity of scienter. Where the repre- sentations of a seller of land are false, are of material facts, and are relied upon by the buyer, it is immaterial, in the latter's suit for a rescission, whether the representations are knowingly false. Jeffreys v. Weekly (Ore.) 1918D-690. b. Misrepresentation as to Value. 3. Misstatement as to valuation by ap- praisers. False and fraudulent representa- tions in the selling of property by an ad- ministrator as to the value placed upon it by appraisers will not sustain an action for deceit in the sale of the property. Harlow v. Perry (Me.) 19180^37. 4. Misrepresentation of rental value. A wilful misrepresentation by a vendor affirm- ing that the rental value of property sought to be exchanged or sold was greater than in truth it was, where the truth in regard to such representation was unknown to the pur- chaser, and where, under the circumstances, he was justifieu in relying upon such repre- sentation, constitutes actionable fraud. Wil- son v. Robinson (N. Mex.) 19180-49. 5. Representation of invoice value. A rep- resentation by the plaintiff that the stock of goods which he offered in exchange for other property was of the invoice value of $12,000 was one of fact, not a mere opinion upon the question of value, and its falsity constituted, actionable fraud. Knopfler v. Flynn (Minn.) 1918E-538. 6. The falsity of the representation was not discovered until after the acceptance of the goods; such acceptance did not therefore bar a claim for relief from the fraud. Knop- fler v. Flynn (Minn.) 1918E-538. 7. An inventory or list of the goods taken in the manner stated in the opinion soon after the delivery and acceptance of the same, held, following Itasca Cedar & Tie Co. v. Mc- Kinley, 124 Minn. 183, properly received in evidence. Knopfler v. Flynn (Minn.) 1918E- 538. 8. The invoice or cost price of the goods held sufficiently established by competent evi- dence. Knopfler v. Flynn (Minn.) 1918E-538. 108 ANN. CAS. DIGEST (l18C-iai8E). 9. The evHence sustains the findings of the trial court, and there were no errors in the admission or exclusion of evidence. Knopfler v. Flynu (Minn.) 1918E-538. c. Violation of Rules in Voting Contest. 10. Where defendant, in an action for dam- ages for fraud, organizes a popularity con- test to increase the circulation of his news- paper, and plaintiff, with other contestants, secures subscriptions for the paper in order to secure votes, defendant cannot, at the clos- ing of the contest, escape liability for fraud- ulent balloting or counting of votes by turn- ing the contest over to another, nor can he countenance fraudulent voting; the relation of the parties being contractual in character. Smead v. .Stearns (Iowa) 1918C-745. (Annotated) 11. Where the owner of a newspaper in- stitutes a popularity contest in which votes are given for subscriptions to his paper in order to increase his circulation so as to per- mit him to bid for the county printing, for which subscriptions are required to be bona fide, thereby requiring an act of the sub- scriber to make them valid, he cannot accept money from one man for a large number of subscriptions without names of the supposed subscribers, where he has made the rule that the subscriptions must be bona fide, and his act in so accepting money is a fraud upon the other contestants than the one for whom the votes are counted, for which the defendant is liable, although the depositor of the money, after the contest, furnishes a list of subscrib- ers covered by his payment. Smead v. Stearns (Iowa) 1918C-745. (Annotated) 12. Acquiescence of party defrauded. Where defendant, in an action for damages for fraud, organizes a popularity contest to increase the circulation of his newspaper, and plaintiff, with other contestants, secures sub- scriptions for the paper in order to secure votes, the fact that plaintiff's husband pro- tests the counting of invalid votes, but tells the canvassers that the count "was up to them," is no acquiescence in the decision of the canvassers to count such votes. Smead v. Stearns (Iowa) 1918C-745. (Annotated) 13. Where defendant organizes a popular- ity contest to increase the circulation ' of his newspaper, and plaintiff, with other contest- ants, secures subscriptions for the paper in or- der to secure votes, and on the closing of the contest plaintiff agrees that certain persons shall act as judges, she does not thereby ac- quiesce in the counting of votes not secured according to the rules of the contract, espe- cially where she enters protest at the time against their being counted, and a plea of her acquiescence is no defense to her action for fraud. Smead v. Stearns (Iowa) 1918C-745. (Annotated) 2. Actions. 14. Proof. Fraud is ordinarily established by circumstantial evidence. State v. Hyde (Ore,) 1918E-688. 15. Instructions. Where defendant, in an action for damages for fraud, organized a popularity i mtest to increase the circulation of his newspaper, and plaintiff, with other contestants, secured subscriptions for the paper in order to secure votes, evidence that on the closing of the contest defendant told the one in custody of the ballot boxes to ac- cept money for votes if anyone came along, and soon thereafter the father of one contest- ant appeared and deposited $100, is sufficient to warrant the giving of an instruction on conspiracy. Smead v. Stearns (Iowa) 1918C-745. (Annotated) FRAUDS, STATUTE OF. Parol agreement for rescission of written contract for sale of goods, see SALES, 7. Parol agreement to purchase land for mort- gagor on foreclosure of mortgage as creating implied trust, see TRUSTS AND TRUSTEES, 8. Parol trust contradicting deed, see TRUSTS AND TRUSTEES, 9. 1. Contract for joint purchase from third person. An oral agreement, between two plaintiffs and a corporation, to buy jointly a stock of goods and fixtures at an insolvency sale, that plaintiffs shall furnish half and the corporation half of the price, and that, when the property is purchased, part shall be sold and the proceeds divided, part divided at in- ventory value, and part divided in specie, is not within St. 1915, 2308, the statute of frauds relating to contracts for the sale of goods, or section 1684t (4), the uniform sales act, to the same effect. Stack v. Roth Bros. Co. (Wis.) 1918C-742. (Annotated) 2. Contract partly within statute. Where the several stipulations of a several contract are so interdependent that the parties cannot reasonably be considered to have contracted but with a view to the performance of the contract as a whole and any part of the con- tract violates the statute of frauds, no recov- ery can be had upon any part of it; but if the seA'eral stipulations are not so interde- pendent but that a distinct engagement as to any one stipulation may be fairly and reason- ably extracted from the whole, then there may be a recovery on such distinct engage- ment, whenever it is clear of the statute of frauds, though the other stipulations are in violation of the statute. Godefroy v. Hupp (Wash.) 1918E-494. (Annotated) 3. Under Rem. & Bal. Code, 5289, an oral contract for the payment of a commission for exchange of personal property for realty is void, so far as realty is concerned, and void in its entirety unless the contract is divisible. Godefroy v. Hupp (Wash.) 1918E-494. (Annotated) 4. Recovery back of part payment under verbal contract. A party who has repudiated his verbal contract for the sale of land cannot invoke the statute of frauds to enable him to retain what he has received of the purchaser under it, in part performance thereof. Jones v. Ceres Invest. Co. (Colo.) 1918C-429. (Annotated) FRAUDULENT SALES AND CONVEYANCES GAMING. 109 FRAUDULENT SALES AND CONVEY- ANCES. Validity of postnuptial agreement, see HUS- BAND A>*D WIFE, 12. 1. Mortgage in excess of actual debt. A mortgage executed to secure a sum far in ex- cess of the mortgagor's debt to the mortgagee is held to be fraudulent and void as to cred- itors. Union Securities Co. v. Smith (Wash.) 1918E-710. (Annotated) 2. Subsequent creditors. The execution and registration of deeds to a wife and a trus- tee at a time when the grantor is not indebt- ed, are not fraudulent as to subsequent cred- itors. Harris v. Carolina Distributing Co. (N. C.) 1918C-329. FREEZING. Liability of carrier for loss of goods by freezing, see CARRIERS OF GOODS, 3, 5. FRONT FOOT RULE. Assessment for improvement by front foot rule as violating fourteenth amendment, see TAXATION, 49. FUEL. Power of city to maintain fuel yard, see MU- NICIPAL CORPORATIONS, 12.* FUGITIVE. Who is fugitive from justice within extra- dition laws, see EXTRADITION, 2. FUTURES. Cancellation of securities given to borrow money for use in dealing in futures, see GAMING, 5, 6. Purchase of futures as gaming, see GAMING, 1. Recovery of losses under contract for pur- chase of futures, see GAMING, 2, 3. GAMING. Definition of stakeholder, see WORDS AND PHRASES, 10. 1. Purchase of "futures" as gaming. A contract for the purchase and delivery of a commodity in the future, and for the payment of the difference in price arising out of the rise and fall in the market above or below the contract price, is a "wager" on the future price of the commodity, and is therefore void when the real intent of the parties is simply to speculate on the rise and fall of prices, and the goods are really not to be delivered. Cohn v. Brinson (Miss.) 1918E-134. 2. Recovery back of losses. Under Laws 1908, c. 118, prohibiting dealings in futures, and declaring such contracts unlawful, and by section 9 providing that the wife, etc., of a person sustaining a loss in future transac- tions may within five years recover, by suit, the amount so lost as liquidated damages from the broker, agent, or intermediary ne- gotiating such contractions, a bank and trust company doing a regular banking business, not representing any brokers in futures, not receiving market quotations or taking orders for future contracts, but merely loaning money to one dealing in futures, is not an ''agent or intermediary," and hence the bor- rower's wife cannot recover back an alleged loss. Cohn v. Brinson (Miss.) 1918E-134. (Annotated) 3. Under Code 1906, 2302, giving a right to the wife, etc., of any one losing and paying money at gaming or wagering, a right to re- cover it, without expressly giving a wife the right to recover from a bank money knowing- ly lent or advanced for the purpose of gam- bling, and section 2303, declaring "futures" unlawful, and giving her the right to sue for and recover money lost and paid on futures from the principal or agent knowingly receiv- ing the money on such illegal transactions, the wife of one dealing in cotton futures di- rectly with brokers in another state cannot recover money lent or advanced by a bank, with knowledge of the borrower's dealings, and never repaid except by renewals forming a part of the consideration of a note secured by the mortgage of her homestead and other property. Cohn v. Brinson (Miss.) 1918E- 134. (Annotated) 4. Recovery from stakeholder. Money de- posited with a stakeholder on account of a gambling contract may be recovered from the stakeholder while in his hands by the person making the deposit. Martin v. Francis (Ky.) 1918E-289. 5. Cancellation of securities given in gaming consideration. Under Code 1906, 2300, ren- dering absolutely void and unenforceable any contract for the reimbursing or repayment of any money knowingly lent or advanced for the purpose of gambling, and section 2301, providing that any mortgage or conveyance of any real estate to satisfy or secure money loaned or advanced for such purpose shall vest in the wife and children of the mortga- gor the whole title of the mortgagor as though he had died intestate, the wife of one to whom defendant bank knowingly lent or advanced money for use in dealing in cotton futures, unpaid except by renewals forming a part of the consideration for a note secured by a mortgage executed by herself and hus- band, including their homestead and her sep- arate property, is entitled to have the mort- gage canceled, whereupon the property would immediately vest in herself and children, if any. Cohn v. Brinson (Miss.) 1918E-134. 6. In such case it was immaterial that the borrower had the right to buy cotton futures by mail or wire directly from brokers in an- other state, since it is the policy of the law 110 A XX. CAS. DIGEST (lUtah) 1918E-107. (Annotated) 3. While city authorities may impose li- cense and occupation taxes, and may make reasonable classifications for sxich purpose, such fees and taxes must, under the express terms of Comp. Laws 1907, 206. subd. 87, be uniform in respect to the class Tipon 112 AOT. CAS. DIGEST (1918C-1918E). which they are imposed. Park City v. Dan- iels (Utah) 1918E-107. . (Annotated) 4. A city ordinance, requiring a $100 li- cense fee for peddling "wares and merchan- dise of a general character" and a fee of $7 a quarter for peddling "small articles for household iise," is discriminatory because of the uncertainty of its terms, since the same articles might be construed to be included within the ordinance by one court or jury and to be excluded by another. Park City v. Daniels (Utah) 1918E-107. (Annotated) HEALTH INSURANCE. See INSURANCE, 48-53. HEARSAY EVIDENCE. See EVIDENCE, 9. HEIRS. See DESCENT AND DISTRIBUTION ; WILLS. Action to recover realty, see EXECUTORS AND ADMINISTRATORS, 11. Money in hands of heirs as assets, see EXECU- TORS AND ADMINISTRATORS, 12. HIGHWAYS. See STREETS AND HIGHWAYS. HOLIDAYS. See SUNDAYS AND HOLIDAYS. HOMICIDE. 1. Manslaughter, 112. 2. Indictment or Information, 112. 3. Evidence: a. Admissibility, 312. b. Weight and sufficiency of evidence, 112. 4. Province of Court and Jury, 113. 5. Instructions, 113. See DYING DECLARATIONS. Admissibility of declaration of third person injured in altercation, see ADMISSIONS AND DECLARATIONS, 20. Admissibility of declaration of victim of homicide, see ADMISSIONS AND DECLARA- TIONS, 18, 19. Assault with intent to kill, see ASSAULT, 1, 2. By negligent operation of automobile, see AUTOMOBILES. 26. Jurisdiction of juvenile court of infant al- leged to have committed homicide, seo INFANTS. 9, 12. 1. Manslaughter. 1. Manslaughter is the unlawful killing of another without malice, either upon a sud- den quarrel or unintentionally, while the slayer is in the commission of an act made unlawful Ity a valid statute. State v. Schaef- fer (Ohio) 1918K-1137. 2. In mi indictment for manslaughter such unlawful act need not be pleaded in the in- dictment. The short form of indictment pro- vided in section 18583, General Code, is no) in conflict with the constitutional guaranty that the accused shall be advised of "the nature and cause of the accusation a^aiiisi him." State v. Schaeffer (Ohio) 1918E-1 1:17. 2. Indictment or Information. 3. Where an indictment for manslaughter charges the defendant with having "unlaw- fully killed Adelbert Chaky. somet mies otherwise known as Buley Csaki, 1 ' and there is no evidence tending to prove the alias, or that both names were the names of the same person, such failure is not a fatal vari- ance, because it is not prejudicial to the mer- its of the case and the substantial rights of the defendant. State v. Schaffer (Ohio) 1918E-1137. 3. Evidence, a. Admissibility. 4. Identity of deceased. Under Pen. Code 1895, art. 654, requiring the identification of the body of deceased as that of the person charged to have been killed, the state is bound to prove the corpus delicti, and the amount of proof of identification cannot be complained of. McCue v. State (Tex.) 1918C-674. 5. Under this statute, circumstantial evi- dence is admissible to prove identity. Mc- Cue v. State (Tex.) 1918C-674. 6. Letters, memoranda, etc. In a prosecu- tion for homicide, where the body is not clearly identified by any witness, letters, memoranda, etc., found in a grip near the body and in the clothes, are admissible to prove identity. McCue v. State (Tex.) 1918C-674. (Annotated) 7. But such memoranda, etc., are not ad- missible to show that deceased had in his possession a considerable sum of money. .Mci ue v. State (Tex.) 1918C-674. 8. Possession of money by accused. Where it is shown that immediately before the killing accused was short of money and pawned his watch, evidence that after the killing accused was freely spending money in saloons and immoral resorts is admissible, where it appears that deceased, when killed, had in his possession a considerable sum of money. McCue v. State (Tex.) 1918C-674. b. Weight and Sufficiency of Evidence. 9. The evidence is held to sustain a con- viction for murder against a plea of self- defense. Holland v. State (Ark.) 191SC-578. 10. In a prosecution for murder, the evi- dence reviewed and held sufficient to sustain the conviction with imprisonment for life-. HOSPITALS A.XD ASYLUMS HUSBAXD AND WIFE. 113 as the punishment. Poling v. State (Okla.) 1918E-663. 11. Corroboration of accomplice. Testi- mony that a knife found by the body of de- ceased, who had been stabbed and beaten to death, belonged to accused, is sufficient corroboration of the testimony of a self-con- fessed accomplice to justify a conviction up- on the accomplice's testimony. McCue v. State (Tex.) 1918C-674. 4. Province of Court and Jury. 12. Alibi. In a prosecution for homicide, where the evidence on alibi is conflicting, the question is for the jury. McCue v. State (Tex.) 1918C-674. 5. Instructions. 13. Reasonableness of belief in danger. An instruction that the accused was justi- fied in shooting if he believed, "acting as a reasonable person/' he was in danger, etc., is not reversible error because of the quoted words, where the accused was not shown to have been of inferior mental capacity. Hol- land v. State (Ark.) 1918C-578. 14. Act of accused as proximate cause of death. The unlawful act relied upon as the predicate for manslaughter must be the proximate cause of death. If death resulted irom any other cause, or there be a reason- able doubt as to the unlawful act being the proximate cause of death, the jury should acquit. But where, . upon the undisputed facts, it clearly and conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure to so charge, especially where there was no request to so charge, is not reversible error. State v. Shaeffer (Ohio) 1918E-1137. 15. Submission of included offenses. Where all the evidence clearly and conclu- sively shows that the unlawful act relied upon by the state directly caused the killing, and there is no evidence to the contrary, the failure of the court to charge on assault, or assault and battery, is not error. (Marts v. The State, 26 Ohio St. 162, and Dresback v. The State, 38 Ohio St. 365, approved and followed. So far as the case of Lindley v. The State, 69 Ohio St. 215, is in conflict with the two foregoing cases, said Lindley case is disapproved.) State v. Schaeffer (Ohio) 1918E-1137. HOSPITALS AND ASYLUMS. Hospital as charity, see CHARITIES, 1. Liability of charitable institution operating hospital for injury to patient, see CHABI- TIES, 4. HOTELS. See INNS AND INNKEEPERS. Ann. Cas. Dig. 1918C-E. 8. HUMILIATION. From disfigurement as element of damage in action for personal injury, see DAM- AGES, 2. HUSBAND AND WIFE. 1. Disabilities of Married Women, 113. 2. Antenuptial Contracts, 114. 3. .Wife's Separate Property, 114. 4. Rights and Liabilities Inter Se, 1 14. 5. Community Property, 115. 6. Rights against Third Persons, 116. 7. Liability to Third Persons, 116. See ALIMONY AND SUIT MONEY; DIVORCE; MARRIAGE. As competent witnesses for or against each, other, see WITNESSES, 3-5. Attachment on community property, see AT- TACHMENT, 1, 2. Conveyance to wife as fraudulent, see FRAUD- ULENT SALES AND CONVEYANCES, 2. Curing defective acknowledgment in convey- ance from wife to husband, see ACKNOWL- EDGMENTS, 6. Effect of defective acknowledgment in deed from wife, see ACKNOWLEDGMENTS, 1. Estate by entirety as subject to execution, see EXECUTIONS, 1. Estoppel of wife to deny validity of contract of employment by husband* of attorney, see ATTORNEYS, 2. Lien of judgment on community propertv, see JUDGMENTS, 6. Purchase by wife in name of husband as re- sulting trust, see TRUSTS AND TRUS- TEES, 4. ' Right of wife to recover for money lost by husband in purchase of futures, see GAMING, 2, 3, 5, 6. 1. Disabilities of Married Women. 1. Contract to convey Acknowledgment. A married woman can bind her land for sale only by a writing which she duly ac- knowledges as the statute requires. Weekly v. Wagner (AY. Va.) 1918E-630. 2. Where a married woman by a written option executed only by her signature and seal, agrees to convey her land to another in case he elects to take the same within a stipulated time, her acknowledgment of the same made before a notary after the time fixed for such election has expired, will not, without more, revive and legalize the agree- ment and an election made under it within the time. Weekly v. Wagner (W. Va.) 1918E-630. (Annotated) 3. Deeds Sufficiency of joinder of hus- band. The deed of a married woman, signed and acknowledged by herself and husband, although the latter is not named as a grant- or, evidences the husband's joinder in the deed, and passes the wife's title to her sepa- rate real estate. Linn v. Collins (W. Va.) 1918C-86. AKN". CAS. DIGEST (1918C-1918E). 2. Antenuptial Contracts. 4. Effect on marital rights. The marital rights of husband and wife will not be taken away by an antenuptial agreement, unless the intention to do so is clearly ap- parent. Baughman v. Baughman (111.) 1918E-S95. 5. Construction. An antenuptial marriage settlement examined, and held binding only if the husband desired to dispose of his prop- erty otherwise than as under the statute of descents. Baughman v. Baughman (lll.i 1918E-895. 6. An antenuptial marriage contract exam- ined, and held executory and not binding up- on the parties as to the rights of their own child; she being a minor at her father's death. Baughman v. Baughman (111.) 1918E- 895. 7. Marriage settlements. The law favors marriage settlements and seeks to uphold them, and will, if necessary, strain to the uttermost the interpretation of equivocal words and conduct to hold the parties there- to. De Cicco v. Schweizer (N. Y.) 1918C- 816. 3. Wife's Separate Property. 8. Evidence showing purchase with sepa- rate funds. In a suit by a wife to quiet title to real estate, sold on execution against her husband, the evidence is held to be suffi- cient to support the finding that the prop- erty was purchased with the separate funds of the wife, and not with the proceeds of a sale of community property. McKeehan v. Vollmer-Clearwater Co. (Ida.) 1918E-1197. 9. Where there is a conflict of evidence as to whether property claimed as separate property of the wife was purchased out of the proceeds of the sale of community prop- erty, and the trial court finds that it was not so purchased, the finding will not be disturbed. McKeehan v. Vollmer-Clearwater Co. (Ida.) 1918E-1197. 10. Where defendant father made a valid agreement with his wife that property in- herited by her and which she acquired should remain her separate property, the evidence is held to be sufficient to justify a finding that property purchased for her by her son with her money and with money which the son owed her for rent, etc., was her separate property, and that part of the purchase price paid by the son with his own money should be credited upon his debt to her. Union Securities Co. v. Smith (Wash.) 1918E-710. 11. Earnings of wife. Section 1087, C. L. 1884, and section 1509. C. L. 1897, which de- fined "separate property" of the wife and further provided that, "and any . woman may, during coverture, receive, take, hold, use, and enjoy property of any and every description, and all avails of her in- dustry, free from any liability of her hus- band on account of his debts, as fully as if } she were unmarried" construed. Held, that i Ihe clause quoted simply exempted the earn- ings of the wife from liability for the / debts of the husband, and did not make the wife's earnings her own separate property. Albright v. Albright (X. Mex.) 1918E-542. 12. Postnuptial agreement. In an action to tot aside as fraudulent certain deeds and a mortgage of real estate, and to >ubject the property to the lien of a judgment, the evi- dence is held to establish a valid oral post- nuptial agreement between husband and wife that property inherited by the wife from her father and whatever she acquired should be hers, and upon her death go to her chil- dren, and that whatever the husband ac- quired and his personal earnings shou'd be his. and upon his death go to his two chil- dren by a former marriage, which was con- tinuously acted upon by the parties transact- ing their business separately. Union Securi- ties Co. v. Smith (Wash.) 1918E-710. 4. Rights and Liabilities Inter Se. 13. Validity of contracts. Agreements made between husband and wife, looking to the adjustment of their property rights, standing alone, are not invalid. Hood v. Roleson (Ark.) 1918E-900. 14. Contract facilitating divorce. A con- tract between husband and wife, whereby part of the consideration for his execution of a note was that the wife should not file an answer to his cross -complaint for divorce and should make no defense to the action, is void as against public policy, notwith- standing the existence of legal grounds for divorce, since an agreement intended to fa- cilitate procuring a divorce is against pub- lic policy, any promises founded thereon be- ing void. Hoo'd v. Roleson (Ark.) 1918E-900. (Annotated) 15. Formal requisites of deed. A deed to lands from a wife to her husband is a ''con- tract" within Revisal 1905, 2107. providing that no contract between a husband and wife during coverture shall be valid as to any part of the wife's realty for a longer time than three years, unless it shall be in writ- ing and duly proved as required for convey- ances of land, and unless, upon the exami- nation of the wife apart from her husband, as required in probate of deeds of femes covert, it shall appear to the satisfaction of the officer that the wife freely executed such contract and freely consented thereto at the time of her separate examination, and that the same is not unreasonable and injurious to her, since until delivery a deed is an executory contract, becoming executed iipon delivery.' Butler v. Butler (N. C.) 1918E- 638. 16. Revisal 1905. 2107. providing that no contract between a husband and wife made during coverture shall be valid to affect or charge any part of the real estate of the wife for a longer time than three yenrs. un- less in writing and duly proved as required for conveyances of land and unless upon the examination of the wife, separate from her husband, it shall appear to the satisfaction of the officer that the wife freely executed ^he contract and freely consented thereto at the time of her separate examination, and .that the same is not unreasonable or in- ICE PLANTS-IMPROVEMENTS. jurious to her, is a constitutional exercise of legislative power. Butler v. Butler (N. C.) 191.8E-638. 17. Action against husband for wrongful death. Under Acts 1915, p. 684, removing the disabilities of married women and provid- ing that a married woman in law and equity shall enjoy all rights and be subjected to all la\vs as though she were a feme sole, a mar- ried woman may maintain an action against her husband either for contract or tort, and her representatives may sue her husband for wrongful death under Kirby's Dig. 6289. Fitzpatrick v. Owens (Ark.) 1918C-772. 5. Community Property. 18. Purchase by husband with wife's guar- anty. Where a husband purchases stock with money earned by himself, and his wife is not concerned in the purchase, and signs a bond as stockholder, guaranteeing the in- debtedness of the company to a bank, there being a valid agreement between husband and wife that his earnings should be his separate property, his act in signing the bond does not create a community obligation. Union Securities Co. v. Smith (Wash.) 1918E-710. 19. Evidence. The evidence is held to be sufficient to support a finding that an un- divided one-half of land purchased by the defendants father and son, title to which was taken. in the name of defendant father's wife, was the community property of defendant father and his wife. Union Securities Co. v. Smith (Wash.) 1918E-710. 20. In a suit instituted by a daughter against her father for the partition of the real estate owned by her mother at the time of her death, she having died intestate, the uncorroborated evidence of the father is suffi- cient to sustain a finding by the trial court that the real estate, standing in the name of the wife at the time of her death, was com- munity property. Section 2175, Code 1915, has no application to a suit between heirs for the partition of the real estate of their ancestor. Albright v. Albright (N. Mex.) 1918E-542. 6. Rights against Third Persons. 21. Right of wife to sue for loss of con- sortium. A wife has no right of action at common law against a person for the loss of the consortium of her husband caused by personal injuries sustained by him through the negligence of such person. Smith v. Nicholas Bldg. Co. (Ohio) 1918D-206. (Annotated) 7. Liability to Third Persons. 22. Contract by husband. Where a hus- band contracts to pay a broker a commission for an exchange of property, a judgment, broad enough to be considered as a personal judgment against the wife individually, is erroneous. Godefroy v. Hupp (Wash.) 23. Estoppel to deny husband's title. A married woman purchased real property with her own funds, allowing her husband to act as her agent in the transaction, and the title was taken in the name of her husband con- trary to her instructions. The wife, being unable to read, believed her husband's state- ment that the title was in her name, and nothing happened to put her on inquiry or arouse her suspicions to the contrary. It is held that she was not estopped to claim title as against an execution creditor of her husband. McKeehan v. Vollmer-Clearwater Co. (Ida.) 1918E-1197. (Annotated) ICE PLANT. Power of city to operate, see MUNICIPAL CORPORATIONS, 11. IDENTITY. Identification of devisee, see WILLS, 29-34. Proving identity of deceased in prosecution for homicide, see HOMICIDE, 47^ ILLEGAL CONTRACTS. See CONTRACTS, 12-20. Validity of agreement to divide fees of pub- lic officer, see PUBLIC OFFICERS, 12. ILLNESS. Health insurance, see INSURANCE, 48-53. IMPENDING DEATH. Admissibility of dying declarations as affect- ed by impending death, see DYING DEC- LARATIONS, 2, 3. IMPLIED CONTRACTS. Implied agreement for compensation for serv- ices rendered to parent, see . PARENT AND CHILD, 3. Of consignee to pay freight, see CARRIERS OF, GOODS, 9. To pay broker's commission, see BROKERS, 4, 5. IMPLIED TRUST. See TRUSTS AND TRUSTEES, 1-13. IMPROVEMENTS. Apportionment as between life tenant and remainderman of assessment for public improvements, see LIFE ESTATES, 23-25. Cost of improvements as chargeable to prin- cipal or income of trust estate, see TRX-STS AND TRUSTEES, 27, 30, 31. 116 ANN. CAS. DICKST ( V.U8C-1918E). Liability of grantee of lessor under latter's covenant to pay for improvements, see LANDLORD AND TENANT, 8. Reimbursement of life tenant for improve- ments, see LIKE ESTATES, 19. Taxation for public improvements, see TAXA- TION, 44-51. IMPUTED NEGLIGENCE. Imputation of negligence to person riding in automobile, see AUTOMOBILES, 24. INCLUDED OFFENSES. Inclusion of lesser offenses in information, see INDICTMENTS AND INFORMATIONS, 9. INCOME. Gift of income, see GIFTS, 1. INCOME TAXES. See TAXATION, 59. INCONSISTENT POSITION. In litigation, see ESTOPPEL, 2. INCUMBRANCES. Covenant against, see DEEDS, 11, 12. INDEMNITY. See GUARANTY. Indemnity insurance, see INSURANCE, 23-36, 39-44. Right of city to indemnity from abutting owner against judgment recovered for injuries to pedestrian resulting from icy condition of sidewalk, see STREETS AND HIGHWAYS, 16, 17. 1. Construction. Where an electric com- pany constructing a line close to that of another company agrees to save the latter harmless from all damage by reason of the negligence of the first mentioned company "or otherwise" the indemnitee is not entitled to be indemnified against a liability result- ing in part from its own negligence. Toronto v. Lambert (Can.) 1918D-57. INDEPENDENT CONTRACTORS. 1. Who Are, 116. 2. Liability of Owner, 117. See CONTRACTS; MASTER AND SERVANT. Company furnishing fireworks to committee having charge of Fourth of July cele- bration as independent contractor, see THEATERS AND AMUSEMENTS, 8. 1. Who Are. 1. An "independent contractor" is one who, exercising an independent employment, con- tracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the re- sult of the work. Bodwell v. Webster (Xeb.) .10180-624. (Annotated) 2. Tests of relation. While the existence or the absence of the right of the employer to control the work is a usual test to deter- mine whether the workman is a servant or an independent contractor, the right of the employer to discharge him, the absence of an independent occupation, and the mode of compensating him and his subordinates, may be factors indicating the true relation. Bodwell v. Webster (Xeb.) 1918C-624. ( Annotated ) 3. City garbage collector. One who per- forms services for a city in the matter of removing garbage under a written contract which contains a provision that he is to fur- nish teams and men or such number thereof as in the judgment of said city may be neces- sary, and that the entire work is to be done in a good and substantial manner, with the approval and acceptance of the city, and un- der the supervision and direction of the com- missioner of health, and that his teams and equipment shall be acceptable and satisfac- tory to said health commissioner, is held to be an independent contractor, and not a servant of said city. Montain v. Fargo ( X. D.) 1918D-826. 4. Person hauling logs. Under Workmen's Compensation Law (Pub. Acts Ex. Sess. 1012, No. 10), pt. 1, 5, providing that every per- son or corporation who has any person in service under any contract of hire, shall be an employer, a person who hauls logs for a lumber company over its road under an oral agreement, for no definite period, to use his own team, which he keeps and cares for, with the company's sleighs, in hauling logs from a skidway to a mill, at $2 per thousand, and who has charge of his team on the road and who has nothing to do with the unloading, is an "employee," since the company has such control over his work as to make it inconsistent to say that he is an "independent contractor;" the test of rela- tionship being the right to control the work, and not the fact of actual interference with the work. Tuttle v. Embury-Martin Lumber Co. (Mich.) 1918C-664. (Annotated) 5. In such proceeding, where there was no evidence that the employee knew that the company's foreman could prevent a man working by the thousand from taking a load if he so desired, evidence of any such cus- tom is inadmissible, since a custom is ad- missible only on the ground that the par- ties are both cognizant of it, and must be presumed to have made their engagement IXDEX IXDICTMEXTS AND INFORMATIONS. 117 \vith reference to it. Tuttle v. Embury-Mar- tin Lumber Co. (Mich.) 1918C-664. (Annotated) 6. Evidence. In an action by a servant for injuries, defense being he was not an em- ployee, error in permitting him to testify as to his hiring for defendants by one not shown to have authority, from defendants, is held not to be reversible, in view of the nature of plaintiff's employment and the insuring of plaintiff and others as defendants' em- ployees. Sempier v. Goemann (Wis.) 1918C- 670. 7. Question for jury. Where the rela- tion between the owner of a building and a workman engaged to repair it is not evi- denced wholly by a written instrument, but is affected by extrinsic facts and circum- stances, from which different deductions may reasonably be drawn, whether the workman was an independent contractor is a question for the jury. Bodwell v. Webster (Xeb.) 1918C-624. (Annotated) 8. In an action by a servant for injuries, whether one in charge of the work of piling logs in which defendant was engaged when injured and who was paid a certain sum per thousand while in charge of such work was an independent contractor, is held to be a question for the jury. Sempier v. Gol- mann (Wis.) 1918C-670. (Annotated) 2. Liability of Owner. 9. Where work is done by an independent contractor, no liability exists against the other party to the contract for personal in- juries to the negligent contractor's employee. Teeters v. Des Moines (La.) 1918C-659. 10. While an employer is not responsible for the negligence of an independent con- tractor who hires his own agents and em- ployees and does all the work free from any control or right of control as to details, yet, where the contract calls for the doing of things which, unless precautions are taken, are liable to do injury to others, it is the employer's duty to see that such precautions are taken, and he cannot escape such duty by turning over the whole matter to the contractor. Sroka v. Halliday (R. I.) 1918D- 961. 11. The mere fact of the nominal employ- ment of a workman as an independent con- tractor will not relieve the master of lia- bility for his torts, where he is in fact em- ployed as a servant. Bodwell v. Webster (Xeb.) 1918C-624. (Annotated) 12. County paving city street. Code. 1530, provided that the board of supervisors of each county should levy a tax for the county road fund : the portions collected within cities or incorporated towns to be expended upon the streets of such cities or towns, or on roads adjacent thereto, ''un- der the direction of the city or town council." A city council directed the board of public works to grade a city street and expend mon- ey from the county road fund for the work. The county board of supervisors undertook to do the work provided by tho resolution, and the plaintiff was hired^by them to work on the grading job. He was ordered by the foreman, an employee of the county, to drive on the fill and empty his wagon. The fill gave way and plaintiff was injured. He sued the city, claiming that the county was its agent in the work. It is held that the city had no supervision of the work sufficient to establish agency and make the plaintiff its servant, but that the county was an inde- pendent contractor, and therefore plaintiff could not recover. Teeters v. Des Moines (la.) 1918C-659. (Annotated) 13. Under Code, 1530. providing that the expenditures of money for road work on streets of cities or towns or on roads adjacent thereto shall be done by the board of supervisors, "under direction of thb city or town council," it is immaterial on the question of the city's liability for per- sonal injuries to one employed on the work when done by the county whether the road is within or without the city. Teeters v. Des Moines (la.) 1918C-659. (Annotated) INDEX. Eeliance on index of registry of deeds in searching title, see ABSTRACT OF TITLE, 2, 3. INDIANS. 1. Effect of state law. Act Cong. April 28, 1904, c. 1824, 33 Stat. 573, providing that "all the laws of Arkansas heretofore put in force in the Indian Territory are hereby con- tinued and extended in their operation, so as to embrace all persons and estates in said territory, whether Indian, freedman, or other- wise," was not intended to supplant or super- sede any special enactment of Congress with regard to Indians, but the purpose and effect thereof were to abolish all general existing tribal laws of the Seminoles, and to substi- tute therefor the laws in force and which had for years governed all persons in Indian Territory', save Indians in their intercourse with one another. Palmer v. Cully (Okla.) 1918E-375. 2. Upon the erection of the state, members of the tribes became citizens of Oklahoma, subject to the general state laws relative to marriage and divorce, since which time the validity of their marriage contracts and all rights consequent thereon have been depend- ent upon such laws. Palmer v. Cully (Okla.) 1918E-375. (Annotated) . JVDICTMENTS AND INFORMATIONS. 1. Charging Offense, 118. 2. Amendment, 118. 3. Bill of Particulars, 118. See EMBEZZLEMENT. 1-3; HOMICIDE. 3; RAPE, 1-3. In prosecution for assault with intent to kill, see ASSAULT, 1. 118 HTCfAa DIGEST (1918C-1918E). In prosecution under anti-tipping act, see TIPS, 1. Obtaining money by means of confidence game, see FALSE PRETENSES, 1, 2. 1. Charging Offense. 1. Validity of statute prescribing form. Code Cr. Proc. 229, subd. 6, as amended by laws 1913, c. 242, declaring that an in- formation is sufficient where it can be under- stood therefrom that the offense is designated in such a manner as to enable a person of common understanding to know what is in- tended, requires an information which, as required by Const, art. 6, 7, will give ac- cused the nature and cause of the accusation against him, and is valid. State v. Morse, (S. D.) 1918C-570. (Annotated) 2. Gen Laws 1909, c. 345, 18, as to neces- sary allegations in indictment for embezzle- ment and the indictments drawn thereunder do not violate Const, art. 1, 10 providing that an accused shall not "be deprived of life, liberty or property, unless by ... the law of the land," nor that portion of Const. U. S. Amend. 14, 1, providing for due proc- ess of law, and equal protection of the law. State v. Davis (R. I.) 1918C-563. (Annotated) 3. Cr. Code (Kurd's Rev. St. 1913, c. 38), 99, providing that in every indictment for obtaining money or property by means of the confidence game it shall be deemed a suffi- cient description of the offense to charge that accused did on, etc., unlawfully and feloni- ously obtain from a named person his money or property by means and by use of the confidence game, does not violate Const, art. 13, 9, giving the accused the right to de- mand the nature and cause of the accusation against him. People v. Brady (111.) 1918C- 540. (Annotated) 4. Const, art. 1, 10, declaring that in all criminal prosecutions the accused shall en- joy the right "to be informed of the nature and cause of the accusation," requires no greater certainty in criminal pleading than the common law, which required that the elements of the crime be fully set out. State v. Davis (R. I.) 1918C-563. 5. The object of Const, art. 13, 9, giving accused the right to demand the nature and cause of the accusation, is notice to the ac- cused, and, when the statute so individuates the offense that an indictment in its language is notice to him of the nature and cause of the charge and what he is really to be tried for, it is insufficient. People v. Brady (111.) ' 1918C-540. 6. An indictment is good which charges a statutory offense in the language of the statute creating it, subject to the qualifica- tion that the indictment must by statutory description or other apt averment so identify the offense as to meet the constitutional right of accused to demand the nature and cause of the accusation, but the legislature may pro- ride that the property which is the sub- ject of the crime may be described by words of general description. People v. Brady (111.) 1918C-540. (Annotated) 7. Construction of statute. Under Cr. Code, 408, providing that every indictment shall be deemed sufficient which states tlie , offense in the language of the statute creat- ing it and so plainly that the nature of the offense may lie thoroughly understood by the jury, an indictment, setting forth the offense so that the accused can be at no loss to know what he is accused of so that he may prepare his defense and so that a conviction thereunder may be pleaded in bar of another prosecution for the same offense, is sufficient. People v. Brady (111.) 1918C-540. (Annotated) 8. The requirement that the indictment al- lege the offense with such form that it can be made the foundation of a plea in bar to a later indictment does not require such minute particularity that the first indictment may constitute a bar without oral proof of iden- tity of offenses charged, since such oral proof is allowed, and under Gen. Laws 1909, c. 278, 3, requiring an official stenographic report of the proceedings of a criminal trial, determination as to identity of issues is easy. State v. Davis (R. I.) 1918C-563. 9. Included offenses. Though an offense includes lesser offenses, an information charging the offense need not incorporate all of the ingredients constituting the lesser offenses. State v. Morse (S. Dak.) 1918C- 570. 10. Joinder of two offenses. An indict- ment for violation of a statute regulating hours of labor in manufacturing or mercan- tile establishments which alleges the opera- tion of both a manufacturing and a mercan- tile establishment and the employment of females therein in violation of the statute charges but a single offense. Hotchkiss v. District of Columbia (D. C.) 1918D-683. 2. Amendment. 11. An indictment can be amended in mat- ter of substance only by the grand jury which returned it, or with the consent of accused under Gen. Laws 1909, c. 354, 4, providing for amendment of indictment with consent of accused. State v. Davis, (R. I.) 1918C-563. 3. Bill of Particulars. 12. Power of court. A court may order ;i 1>ill of particulars by virtue of its general authority to regulate trials. State v. Davis (R. I.) 1918C-.i(i. >: !. 13. Purpose. The object of a bill of par- ticulars, in case where the offense is charged in general terms, is to give information which will be of service to the accused in prepar- ing for trial. State v. Davis (R. I.) 1918C- 563. 14. Right to bill of particulars. A bill of particulars is not required to be given under an indictment charging the confidence game in the language of the statute, either to enable the accused to know what he is charged with, or that he may plead the judg- ment in bar of another prosecution for the same offense. People v. Brady (111.) 1!J1M 540. INDUSTRIAL ACCIDENT INFANTS. 119 15. Unless otherwise provided by statute, an application for a bill of particulars is ad- dressed to the judicial discretion. State v. Davis (R. I.) 1918C-563. 16. Aiding bad indictment. A bill of par- ticulars will not aid a bad indictment. Peo- ple v. Brady (111.) 1918C-540. 17. As amendment. A bill of particulars is not an amendment of an indictment, nor does it supply a defect therein. State v. Davis (R. I.) 191SC-563. INDUSTRIAL ACCIDENT. See MASTER AND SERVANT, 12. INDUSTRIAL BOARD. See MASTER AND SERVANT, 7-9, 20, 21, 26. INFANTS. 1. Actions: a. Guardian ad Litem or Next Friend, 119. b. Proceedings before Master, 119. 2. Criminal Responsibility, 119. 3. Juvenile Courts: a. Jurisdiction, 119. b. Nature of Proceedings, 119. c. Notice to Parent, 120. d. Review, 120. Disability of infancy as affecting running of statute of limitations, see LIMITATION OF ACTIONS, 6, 7. 1. Actions. a. Guardian ad Litem or Next Friend. 1. Power to appoint. The power to ap- point a guardian ad litem to manage the de- fense of an infant is one inherent in every court of justice. Flynn v. Flynn (111.) 1918E-1034. 2. Effect of failure to appoint. Failure to appoint a guardian ad litem for an infant defendant, who has been duly served with process, is reversible, but not jurisdictional, error, and renders the decree pronounced against such infant voidable, but not abso- lutely void. Linn v. Collins (W. Va.) 1918C- 86. 3. Reappointment in appellate court. A minor having an interest in proceedings to probate a will is properly made a party to such proceedings, and, on contestant's ap- peal from the county court, the circuit court, en the traiiseript of the record in the county court, may properly appoint for the minor, to protect her interests, the guardian 'ad litem appointed in the county court.. Flynn v. Flynn (111.) 1918E-1034. 4. Duty to follow case on appeal. A guar- dian ad litem, for a minor interested in the admission to probate of a will, appointed in the county court, is under duty to appear in the circuit court, when the contestant ap- peals the case to such court. Flynn v. Flynn (111.) 1918E-1034. 5. Taxation of fees. The contestant of a will, who appealed from the county to the circuit court from an order admitting the will to probate, is properly required to pay the fees of a guardian ad litem appointed by the county court for an infant defendant, and also appointed by the circuit court; the will having been admitted to probate in the circuit court. Flynn v. Flynn (111.) 1918E- 1034. b. Proceedings before Master. 6. Erroneous order Proceeding to carry out contract. In a proceeding on account of the infancy of a party in interest seeking the aid of the court to carry out the provi- sions of an option timber contract, if the master attempts to exceed his authority and convey a fee in the timber, the excess over the rights and privileges as set forth in the option is void. Berry v. Marion County Lum- ber Co. (S. C.) 1918E-877. 2. Criminal Responsibility. 7. Capacity to commit crime. The pre- sumption of incapacity of a child to commit a crime is conclusive when the child is under the age of 7 years; and if between 7 and 14, the burden is on the state to show that the child is capable of appreciating the nature of his acts. Juvenile Ct. v. State (Tenn.) 1918D-752. 3. Juvenile Courts. a. Jurisdiction. 8. Jurisdiction. In a proceeding in the juvenile court for delinquency of a child al- leged to have killed his playmate, the age of the child is immaterial; the procedure not being criminal. Juvenile Ct. v. State (Tenn.) 1918D-752. (Annotated) 9. Under Pub. Acts. 1911, c. 58, requiring that if a child brought before the juvenile court is probably guilty of murder in either degree, he shall be turned over to the coun- ty authorities to be proceeded against ac- cording to criminal law, the juvenile court has no jurisdiction of an infant alleged to have committed homicide if the judge thinks he is probably guilty. Juvenile Ct. v. State (Tenn.) 1918D-752. (Annotated) 10. Showing of Jurisdiction on Record. The juvenile court is a court of special and limited jurisdiction, and its judgments or de- crees should show the facts upon which its jurisdiction rests, such as the age of the child, the nature of the proceedings, the serv- ice of notice, and the statiitory circum- stances of delinquency. Juvenile Ct. v. State (Tenn.) 1918D-752. (Annotated) b. Nature of Proceedings. 11. Proceedings in the juvenile court are not criminal in their nature, and are not in- stituted to punish the child, but to provide 120 A.\.\. CAS. DKJKST (lU18C-l'Jl,sKi. for his welfare. Juvenili 1 Ct. v. State (Tenn.) 1918D-752. (Annotated) c. Notice to Parent. 12. In a proceeding under Pub. Acts. 1911, c. 58, 10, on arrest of an infant for homi- cide, the juvenile court proceedings are not void, for failure to give mother of the boy notice where she is present at the hearing and is examined as a witness, since she thereby enters her appearance and waives the statutory requirement of notice. Juvenile Ct. v. State (Tenn.) 1918D-752. (Annotated) d. Review. 13. Proceedings in the juvenile court must be reviewed in the circuit court by certiorari. State v. West, (Tenn.) 1918D-749. 14. Habeas corpus. Where the juvenile court entered a judgment that a child was delinquent, questions determined in such a proceeding cannot be again reviewed in habeas corpus by the mother of the child, assuming that the proceedings of the juve- nile' court are valid, since the question of the child's custody is res adjudicata. Juvenile Ct. v. State (Tenn.) 1918D-752. (Annotated) 15. Under Thompson's Shannon's Code, 5503, giving authority to any judge of the circuit, common law, or criminal courts, or to any chancellor to issue a writ of habeas corpus, where the juvenile court, in a pro- ceeding under Acts 1911, c. 58, entered a judgment awarding custody of a child, the questions determined in such proceeding can- not be again litigated in a habeas corpus proceeding, by the same parties, on the same state of facts. State v. West (Tenn.) 1918D-749. (Annotated) INFERENCE. Defamation by inference, see LIBEL AND SLANDER, 2. INFORMATIONS. See INDICTMENTS AXD INFORMATIONS. INHERITANCE TAXES. See TAXATION, 52-58. INITIATIVE AND REFERENDUM. Injunction against submission of legislative act, see INJUNCTIONS, 1-3. 1. Determination of validity of initiated ordinance. The constitutionality of a mu- nicipal ordinance which is to be presented to the voters for adoption will not be deter- mined before it is adopted. Pitman v. Dra- belle (Mo.) 1918D-601. 2. Validity of charter provision. Const. art. 9, 22. amendment of 1902, relating to the charter of St. Louis, declares that such charter shall be in harmony with and subject to the constitution and laws of the state, and shall provide for a chief executive and "at lease one house of legislation," to be elected by general ticket. Const, art. 5, f>7, amendment of 1908, provides for the initiative and referendum. Xew charter St. Louis, art. 5, 1-6, gives the people of the city the right to legislate by ballot if the ne house of legislation fails to act upon certification to it of petitions showing meas- ures which the electorate desire adopted. The charter provided a single house of legis- lation. It is held that in view of the con- stitutional provision as to initiative, and the fact that by Laws 1913, p. 443, 29, initiative powers were given to cities of the second and third class, the charter of the city of St. Louis was not invalid because con- taining such initiative provision; the single "house of legislation" required by the con- stitution being given powers of legislation in the first instance. Pitman v. Drabelle (Mo.) 1918D-601. INJUNCTIONS. 1. Subjects of Relief: a. Municipalities and Public Officers, 120. b. Civil Actions and Proceedings, 121. c. Criminal Proceedings, 121. 2. Actions for Injunctions, 122. 3. Temporary Injunction, \-2~2. 4. Injunction Bond, 122. Against labor unions, see LABOR COMBINA- TIONS, 4, 7, 13. Against solicitation by former employee, see , MASTER AND SERVANT, 1, 2. 'Against state insurance board, see INSUR- ANCE, 15. To test validity of grant of liquor license, see INTOXICATING LIQUORS, 1-3. 1. Subjects of Relief. a. Municipalities and Public Officers. 1. Submission of legislative act. Taxpay- ers who object to the submission of a legis- lative act to referendum vote on the ground that the constitutional amendment appear- ing in Laws 1914, c. 520, providing for in- itiative and referendum is invalid, do not. where the question is to be submitted at the general election and the expense will be slight, suffer any irreparable injury entitling them to an injunction. Power v. Ratliff (Miss.) 1918E-1146. 2. A game warden appointed under Law- 1916, c. 99, cannot, on the theory that lie is entitled to the emoluments of his office and that a referendum of the act to the voters will work irreparable injury, secure an order enjoining submission on the theory that the constitutional amendment found in Laws INJUNCTIONS. 121 1914, c. 520, providing for initiative or ref- erendum was void, for the law may be up- held by the voters, and if repealed the war- den can then attack the repeal. Power v. Ratliff (Miss.) 1918E-1146. (Annotated) 3. Though the constitutional amendment found in Laws 1914, c. 520, providing for in- itiative and referendum is void, a referen- dum election cannot be enjoined on the the- ory that if the legislation be repealed the re- peal will be invalid, but the proper proced- ure is to take appropriate action to prevent the execution of any proposition voted upon, for the question of the validity of legisla- tion is not one for the courts, until the leg- islation is completed, and until then the courts cannot determine whether the proper forms have been pursued, for an attempt by injunction to prevent a referendum election might well violate the right of the people to peaceably assemble for political purposes. Power v. Ratliff (Miss.) 1918E-1146. (Annotated) b. Civil Actions and Proceedings. 4. Another action pending. Complainant brought a suit in equity in a federal court to obtain a construction of his father's will and a decree adjudging him to be entitled to the entire beneficial interest in the estate. The bill made defendants the trustee under the will and a nephew and niece of testator who were alleged to claim an interest as heirs at law. It also averred that there might be other collateral heirs, but, if so, they were unknown to complainant. The answer of the two latter defendants set up their claims, and alleged on information and belief that there were other collateral heirs having like interests, but that their names were unknown to the answering defendants. The case was contested, and resulted in a de- cree in accordance with the prayer of the bill, and directing an accounting by the trustee to complainant. Before such accounting a suit was brought in a state court by a large number of persons against complainant and the trustee seeking to establish the right to the estate in themselves and other collateral heirs. It is held that the issues sought to be raised in such suit were the same as those litigated and determined by the federal court; that the jurisdiction of the subject- matter first acquired by that court was ex- clusive, and that complainant was entitled to an injunction to restrain the prosecution of the suit in the state court. McClelland v. Rose (U. S.) 1918C-341. 5. Against execution sale. A sale upon execution will be enjoined in equity when it would constitute a cloud on the title of realty. Townsend v. Chamberlain (Ore.) 3918C-330. (Annotated) 6. An action can be maintained by the owner of real property to enjoin its sale un- der an execution issued on a judgment against another person in an action to which the owner of the property was not a party. Yount v. Hoover (Kan.) 1918C-148. (Annotated) 7. Under the statute, an action may be maintained to restrain a sale under execu- tion if the deed of the officer who sells will not pass title, and will only throw a cloud upon the title of the plaintiff. Harris v. Car- olina Distributing Co. (N. C.) 1918C-329. (Annotated) 8. An injunction should not be granted by the chancery court to prevent the issuing of execution based upon a judgment at law, un- less the facts show the clearest and strong- est reasons for the interposition of the court of chancery. Welch v. Hannie (Mi*s.) 1918C-325. (Annotated) 9. Adequate remedy at law. The court erred in granting the injunction. When that part of the petition which was based upon the theory that the fi. fa. (against the en- forcement of which injunction was sought) was a cloud upon the title of plaintiff was stricken iipon demurrer, to which ruling there was no exception, the only purpose that an injunction could serve would be to prevent enforcement of the execution by levy; and relatively to this branch of relief sought, the plaintiff will have an adequate remedy at law, when a levy of the execution is actually made, by filing a claim as provid- ed by statute. Douglas v. Jenkins (Ga.) 1918C-322. (Annotated) c Criminal Proceedings. 10. Against enforcement of penal statute. The prosecution and punishment of crime will not be restrained by a court of chancery, except that equity has jurisdiction to re- strain the institution of prosecutions under unconstitutional or void statutes or local or- dinances, when property rights would be irre- parably injured, and the other elements nec- essary to support cognizance by equity are present, since private personal and property rights will be protected by injunction from irreparable and unlawful injury. Shuman v. Gilbert (Mass.) 1918E-793. (Annotated) 11. A bill by six merchants, firms, and cor- porations, which alleged that defendant, chief of police of a city, was threatening to prosecute them for violation of a statute prohibiting hawking and peddling, though they had not violated it, did not make a case for equitable relief by injunction against the chief of police, but fell within the general principle that courts of equity will not en- join the institution of prosecutions from al- leged crimes. Shuman v. Gilbert (Mass.) 1918E-793. (Annotated) 12. Injury to business. Simply that one is in business and may be injured in respect thereto by prosecution for an alleged crime is no sufficient reason for asking a court of equity, in suit to enjoin the officer from pros- ecuting, to ascertain in advance whether the business as conducted is in violation of a penal statute. Shuman v. Gilbert (Mass.) 1918E-793. (Annotated) 13. Multiplicity of suits. A complaint by six merchants, firms, and corporations, al- leging the possibility that complaints may be lodged against them under a statute pro- hibiting hawking and peddling, which they have not violated, does not make out a case 122 ANN. CAS. DIGEST (1918C-1918E). of multiplicity of prosecutions, justifying in- junction against the officer who would bring them. Shuman v. Gilbert (Mass.) 1918E- 793. (Annotated) 2. Actions for Injunctions. 14. Parties. The judgment creditor is not a necessary party in an action to enjoin a sheriff from selling the property of a third person under an execution issued on a judg- ment in an action to which such third per- son was not a party. Yount v. Hoover (Kan.) 1918C-148. (Annotated) 15. The state officials whose duty and in- tention it is to tabulate the returns and pro- mulgate the result of an election in which a special and local statute appears to have been adopted by a majority vote of the elec- tors of a municipality affected by the stat- ute, are the proper defendants in an injunc- tion suit by the municipal corporation to prevent the law from going into effect, on the ground that it violates the constitution. Gretna v. Bailey (La.) 1918E-566. 16. Pleading. Before a court of chancery will enjoin the issuing of an execution on a default judgment at law, the complainant must allege in his bill facts showing a good and meritorious defense to the action; it not being enough to merely allege the conclusion of law. Welch v. Hannie (Miss.) 1918O-325. (Annotated) 17. In an action to enjoin the issuing of execution based upon a default judgment at law, a statement of complainant's counsel that complainant had a good and meritorius defense to the action at law is but a legal conclusion of the attorney, and not admissi- ble. Welch v. Hannie (Miss.) 1918C-325. (Annotated) 18. Effect of demurrer. In a complaint seeking to enjoin an officer from enforcing a statute against complainants, allegations respecting the course of law and proceedings in court in the commonwealth, assuming that complainants, though plainly innocent of any infraction of law, will be found guilty by the district and superior courts, are not admitted by demurrer. Shuman v. Gilbert (Mass.) 1918E-793. (Annotated) 19. Evidence. In a suit to enjoin an ex- ecution, the validity of the judgment turned upon the question of fact whether some five years before a previous execution was issued on the 5th day of March, 1908, prior to the time the judgment would have become dor- mant. The execution was dated in the fol- lowing manner: "This -4 5 day of May Mch 1908." The appearance docket, the execu- tion docket, and the indorsement on the back of the execution showed that it was issued March 5, 1908. The body of the execution recited that it was returnable May 4. 1908, and the sheriffs return stated that he re- ceived it March 5, 1908. Held, that the ev- idence sustained the finding that the execu- tion issued March 5, 1908. Sparks v. Martin (Kan.) 1918C-324. (Annotated) 20. In such an action, the records in the office of the clerk of the district court show- ing the issuance of an execution cannot be impeached by testimony of a witness that in a conversation with the deputy clerk of the district court, subsequent to the date when the judgment would have become dormant, the clerk stated to him that no execution on the judgment had issued. Sparks v. Martin (Kan.) 1918C-324. (Annotated) 3. Temporary Injunction. 21. Damages for wrongful issuance Duty to minimize. Where one enjoined from fenc- ing a roadway finally prevailed and it ap- peared that he could have moved his fence back pending litigation for $75, it was his duty to do so, and he cannot obtain $907 damages on the injunction bond for damages from loss of the use of fields left open, it be- ing his duty to minimize the damages as much as he reasonably could. Johnson v. Brown (Tenn.) 1918C-672. (Annotated) 4. Injunction Bond. 22. Summary judgment. In a suit to foreclose a mortgage on timber lands, where the mortgagor, to prevent an injunction against cutting timber, has given a bond con- ditioned on paying any judgment rendered against it, a decree, that the mortgagee shall recover of the mortgagor and the surety on the bond the amount of the mortgage, and have execution against them for any defi- ciency after the sale of the property, is not merely an ascertainment of the amount due prior to sale, but is a "final decree" dispos- ing of all the issues, which fixes the liability of the surety on the bond. United States Fi- delity, etc. Co. v. Burke (U. S.) 19180-93. (Annotated) 23. In a proceeding to foreclose a mort- gage on timber land, the court has jurisdic- tion over the surety on a bond given to prevent injunction against the cutting of tim- ber, and can render judgment against the surety for the deficiency after notice to the surety of application for judgment. United States Fidelity, etc. Co. v. Burke (U. S.) 1918C-93. (Annotated) INNKEEPERS. 1. Liability for insult to guest. In an ac- tion by a guest in defendant's hotel, where the evidence shows a wrongful invasion of plain- tiff's room, a violation of his rights of pri- vacy, and humiliation suffered on account of the rtemoval of his effects therefrom, dam- ages for humiliation and indignity may be awarded. Florence Hotel Co. v. Bumpas (Ala.) 1918E-252. (Annotated) 2. Burden of justifying ejection. Where one has shown himself admitted as a guest, the burden is on the innkeeper to justify his ejection. Florence Hotel Co. v. Bumpas (Ala.) 1918E-252. INQUIRY. Necessity for writ of inquiry in justice's court, see JUSTICES OF THE PEACE, 3, 4. INSANITY INSURANCE. INSANITY. Imputation of insanity as libel, see LIBEL AND SLANDER, 6. Testamentary capacity, see WILLS, 5-8. INSOLVENCY. Of corporations, see CORPORATIONS, 43, 4-L INSTRUCTIONS. See COMPROMISE, 1; DEATH BY WRONGFUL ACT, 17; ELEVATORS, 5; FIRE INSUR- ANCE, 21; FRAUD, 15; HOMICIDE, 13-15; INTOXICATING LIQUORS, 17-19; LIBEL AND SLANDER, 57-64: RAILROADS, 19; SEDUCTION, 4. As to evidence of delusion of testator, see WILLS, 5. As to undue influence of testator, see WELLS, 10. Harmless error see, APPEAL AND ERROR, 83, 84. In action under federal employer's liability act, see MASTER AM> SERVANT, 35. Objections, see APPEAL AND ERROR, 98. 1. Denning terms used. Where the court uses the words "fraud" and "fraudulently" in its instructions, it is not necessary to de- ihie them, since they are not of technical sig- nificance, especially where neither party re- quests a definition. Smead v. Stearns (la.) 1918C-745. 2. Verbal inaccuracies. Verbal inaccura- cies in a charge, where it correctly and fair- ly presents the law as a whole, are not ground for reversal. McCue v. State (Tex.) 1918C-674. 3. Abstract instruction. An abstract in- struction is properlv refused. Com. v. John T. Connor Co. (Mass.) 1918C-337. 4. Misleading request. An instruction which is misleading and confusing in the ex- treme is properlv refused. Rosmau v. Trav- elers' Ins. Co. (Md.) 191SC-1047. 5. Cautionary instruction. Refusal of a cautionary instruction is within the discre- tion of the trial court. Childers v. Brown (Ore.) 1918D-170. 6. It is proper to give cautionary instruc- tions relative to the consideration of verbal admissions; but if given they should be so framed as not to disparage or minimize their natural and reasonable effect as items of proof. Blurne v. Chicago, etc. R. Co. (Minn.) 1918D-297. (Annotated) 7. Disregard of immaterial testimony. It is the duty of the court to instruct the jury to disregard immaterial testimony elicited with such as is material. Harlow v. Perry (Me.) 1918C-37. 8. Disregarding theory supported by ev- idence. A binding instruction is properly re- jected which excludes the theory of one of the parties, and which the evidence tends in an appreciable degree to support. Parkers- burg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 9. Request not based on evidence. An in- struction that the defendant, in an assault and battery case, is not liable for damages caused by aggravation of the injury due to hi* own neglect, is proper enough in the ab- stract, but the refusal to give such an in- struction in this case was not error, since there was no sufficient evidence to sustain a finding of such neglect. Patterson v. Blatti (Minn.) 1918D-63. 10. In an action against a railway for in- juries, where, under all the evidence, there was no material issue of fact for the jury to determine on the question of defendant's negligence, error in charging the doctrine of res ipsa loquitur is harmless. Memphis St. R. Co. v. Cavell (Tenn.) 1918C-42. 11. Requests given in substance. It is enougli that requested instructions are given in slibstance by the court. Perry v. Dea- mond Ice, etc. Co. (Wash.) 1918C-891. 12. Requested instructions, given in sub- stance, are properly refused. Childers v. Brown (Ore.) 1918D-170. 13. The refusal of a requested instruction is not error, where it is given by the grant- ing of another requested instruction. Ros- man v. Travelers Ins. Co. (Md.) 1918C-1047. 14. Refusal of a requested instruction on reasonable doubt is not reversible error where other portions of the charge covered the ground. Holland v. State (Ark.) 1918C- 578. 15. Error cured by other instructions. Where accused's defense was alibi, the error in a charge on principal, which did not re- quire the jury to find that accused was per- sonally present at the killing, must be dis- regarded, where other paragraphs of the charge directed acquittal in case 'of a reason- able doubt as to whether accused was pres- ent at the killing. McCue v. State (Tex.) 1918C-674. INSURABLE INTEREST. See FIRE INSURANCE, 1-3. INSURANCE. 1. Insurance Agents and Brokers: a. In General, 124. b. Liability to Insurer, 124. 2. Statutory Regulations, 124.. 3. Construction of Policy Generally, 125. 4. Warranties and Representations, 125. 5. Waiver of Provisions, 125. 6. Liability Insurance: a. Construction of Contrast, 125. b. Actions, 126. 7. Automobile Insurance, 127. 8. Credit Insurance, 127. 9. Health Insurance, 127. See ACCIDENT INSURANCE; BENEFICIAL AS- SOCIATIONS: FIRE INSURANCE ; LIFE IN- SURANCE: MARINE INSURANCE. 124 ANN. CAS. DIGEST (1918C-1918E). As mitigation of damages in action for per- sonal injury, see DAMAGES, 1. Declarations and- admissions of insured, see ADMISSIONS AND DKCI.AKATIONS. 3-(i. Implied trust in proceeds of insurance on buildings constructed by tenant, see TRUSTS AND TRUSTEES, 6. Proof of age of insured, see EVIDENCE, 41. Validity of provision against interest in con- tract of insurance, see INTEREST, 1. 1. Insurance Agents and Brokers. a. In General. 1. Representations inconsistent with pol- icy. The general agent of a credit insurance company, though authorized to make con- tracts and issue insurance policies, and to vary the terms of the policies and bind his company, though contrary to the express terms of his contract of employment, nev- ertheless cannot, by contemporaneous oral representations, override the express agree- ment for insurance made by plaintiffs, and contained in the written applications signed by one of them. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. 2. Whatever the apparent authority of a special and a general agent of a credit in- surance company, persons who attempt to secure credit insurance are charged with knowledge that no representations or agree- ments made by the two agents will bind the insurance company, if contrary to the terms of the application and of the policies an- nexed and referred to in the applications. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. (Annotated) 3. Authority of agent. Where the agent of a credit insurance company represented himself to one who desired to secure insur- ance as a special agent, the person desiring insurance was bound to ascertain the nature and extent of his authority. Cauman v. American Credit Indemnity Co. (Mass.) 19.18E-841. 4. The limitations placed upon the author- ity of the general agent of a credit insurance company, contained in the written agree- ment under which he was employed, do not affect the rights of third persons, who, with- out knowledge of such limitations, deal with him within the apparent scope of his author- ity. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. b. Liability to Insurer. i 5. Failure to cancel policy. Insurance agents, sued by their company for loss from not canceling policies as directed by it, can- not deny that it was their duty to do so, they having undertaken to do it, when, had they refused, it might seasonably have been done by the company. National Union F. Ins. Co. v. Dickinson (Wash.) 1918C-1042. (Annotated) 6. Binding effect of judgment on policy. Insurance agents liable to their company for any loss on policies, because they did not cancel them as directed by it, are bound by the judgment against the company in the ac- tion on the policies, on the question there litigated whether proper proofs of loss were made', defense of such action having been tendered them by the company, though they, while actively assisting, declined to assume the defense. National Union F. Ins. Co. v. Dickinson (Wash.) 1918C-1042. (Annotated) 7. Evidence. Evidence in action by an in- surance company against its agents is held to authorize a finding that they had not can- celed policies as directed by it, or even used ordinary care to do so. National Union F. Ins. Co. v. Dickinson (Wash.) 1918C-1042. (Annotated) 2. Statutory Regulations. 8. Validity of statute creating board. Chapter 174, Sess. Laws 1915, p. 340, creat- ing a state insurance board and providing for the regulation and control of rates of premiums on insurance, and for other pur- poses therein specified, is not in violation of any rights of the companies affected thereby doing business in this state secured to them by the fourteenth amend, to the Constitution of the United States, and is. within the legit- imate police power of the state. Insurance Co. of North America v. Welch (Okla.) 1918E-471. .(Annotated) 9. The business of insurance affected by the provisions of said act is of such nature and affected with such a public interest as to justify legislative regulation thereof and of the rates charged by the companies engaged in such business. Insurance Co. of North America v. Welch (Okla.) 1918E-471. (Annotated) 10. It is within the power of the legisla- ture to create a state insurance board, and to require every fire, tornado, and plate glass insurance company and every insurance com- pany granting insurance against the liability of employers to file with said board a sched- ule of rates charged by it for such risks, and to prohibit a change in such rates except af- ter ten days' notice to said board of such contemplated change, and authorizing said board, Avhen it shall determine that any rate is excessive or unreasonably high, or that said rate is inadequate to the safety or soundness of the company granting the same, to direct said company to file a higher or lower rate, commensurate with the risk and further requiring that in every case the rate shall be reasonable, when provision is made for a review of the orders of said board by the courts. Insurance Co. of North Amer- ica v. Welch (Okla.) 1918E-4T1. (Annotated) 11. Section 174, Sess. Laws 1915, p. 340. is not violative of the provisions of sections 22, 23, and 24 of article 6 of the constitution, creating the insurance department and the office of insurance commissioner, nor does such act deprive the insurance commissioner of any powers or duties conferred upon him by the constitution. Insurance Co. of North America v. Welch (Okla.) 191 8E 471. (Annotated) IXSL'KAXCE. 125 12. The grant to the legislature of specific authority by section 19, art. 9 of the consti- tution to vest in the corporation commis- sion additional powers and duties in connec- tion with the visitation, regulation, or con- trol of corporations, or with prescribing and enforcing rates and charges to be observed in the conduct of any business, where the state has the right to prescribe the rates and charges in connection therewith, does not de- prive the legislature of its power to regulate and control such matters or to create the state insurance board and vest it with the powers enumerated in said chapter 174. Sess. Laws 1915. Insurance Co. of North America v. Welch (Okla.) 1918E-471. (Annotated) 13. Exempting domestic mutual fire insur- ance companies and reciprocal associations and mutual insurance companies and recipro- cal associations doing business in this state from the provisions of said act does not ren- der such legislation invalid as to other in- surance companies, as denying them the equal protection of the laws. Insurance Co. of North America v. Welch (Okla.) 1918E- 471. (Annotated) 14. The title of the act is sufficiently com- prehensive to embrace the various provisions thereof. Insurance Co. of North America v. Welch (Okla.) 1918E-471. 15. Provision having been made for an ap- peal to this court from any regulation, order or rate adopted by said board, said provision gives a speedy and adequate remedy, and an injunction will not lie to restrain said board from proceeding in a matter within its law- ful jurisdiction. Insurance Co. of North America v. Welch (Okla.) 1918E-471. (Annotated) 3. Construction of Policy Generally. 16. A policy of insurance being a written contract, its terms must be given a reason- able construction, and not stretched beyond their evident meaning. Rocci v. Massachu- setts Accident Co. (Mass.) 1918C-529. 17. When the language used in a policy is unambiguous, its usual and ordinary mean- ing should be attributed to it. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C- 399. 18. Construction against insurer. Policies will be construed most strongly against the company and in favor of the insured. Em- inent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. 19. Obscure or equivocal words and phrases in a policy of insurance must be con- strued strongly against the insurer: but the rule does not apply where the words are so plain as to leave no room for construction. Rocci v. Massachusetts Accident Co. (Mass.) 191SC-529. 20. Understanding of insured. Where reasonable doubt exists as to meaning of in- surance contract, the construction that will carry out the insured's understanding should be adopted, where his understanding is based upon representations made by the company. Forman v. Mutual L. Ins. Co. (Ky.) 1918E- 880. 4. Warranties and Representations. 21. Amount to be realized from policy. In action by an insured to recover difference between surplus as computed by defendant insurance company and amount guaranteed when policy was issued, evidence is held to be sufficient to show that insured was in- duced to take out policy by insurer's repre- sentations as to the amount of surplus he would receive. Forman v. Mutual L. Ins. Co. (Ky.) 1918E-880. 5. Waiver of Provisions. 22. Pleading Departure. An insured can- not declare upon the policy and, when charged by the insurer's answer with short- comings, reply that such omissions were waived. Waller v. New York Ins. Co. (Ore.) 1918C-139. 6. Liability Insurance. a. Construction of Contract. 23. Indemnity against liability for malprac- tice. Policy insuring against loss from li- ability by law for damages on account of bodily injuries or death suffered in conse- quence of error, mistake, or malpractice in assured's profession of dentistry, or by any assistant of the insured while acting under his instructions, is neither technical nor am- biguous, and its language must be given the legal, natural, and ordinary meaning. Betts v. Massachusetts Bonding, etc. Co. (N. J.) 1918E-520. (Annotated) 24. Persons entering into dentist's indem- nity insurance policy will be presumed to have contracted with full knowledge of the legal effect of their acts under the laws re- lating to the practice of dentistry. Betts v. M;i->achusetts Bonding, etc. Co. (N. J.) 1918E-520. . (Annotated) 25. An insurer, issuing an indemnity pol- icy to a dentist to protect him in actions for his alleged malpractice, may rely on the full performance of the dentist's duties under th law. Betts v. Massachusetts Bonding, etc. Co. (ST. J:) 1918E-520. (Annotated) 26. Malpractice of unlicensed assistant. A dentist cannot recover on an indemnity policy for a claim arising from malpractice of his assistant, who was unlicensed when in the application he held his assistant out as a licensed dentist. Betts v. Massachusetts Bonding, etc. Co. (N. J.) 1918E-520. (Annotated) 27. Dentist's indemnity policy, avoiding liability for any claim against the assured or his assistant arising from violation of any law or ordinance on the part of the assured, creates no liability for a claim arising from injuries to a patient from an unlicensed and unregistered assistant, regardless of whether the violation of law was the permanent cause of the injury. Betts v. Massachusetts Bonding, etc. Co. (N. J.) 1918E-520. (Annotated) 28. Under policy indemnifying dentist from liability for alleged malpractice of him- self or assistant while acting under his in- A;N\\. CAS. btructions, the insurer is not liable for a judgment obtained by a patient who was op- erated on and injured by an unregistered and unlicensed assistant acting in violation of the -dentist's instructions, in view of 2 Comp. St. 1910, pp. 1911, 1913, 1915, 1, 8, and 12, stating the requisites of practicing dentistry. Betts v. Massachusetts Bonding, etc. Co. (X. J.) 1918E-520. (Annotated) 29. That such assistant was duly qualified in another state does not make his act in practicing in New Jersey without a license and without registration any the less a vio- lation of law, so as to affect the case. Betts v. Massachusetts Bonding, etc. Co. (X. J.) 1918E-520. (Annotated) 30. Employers' liability insurance Power of insurer to control settlement. Under a policy indemnifying an employer for injury to an employee to an amount not exceeding $5,000 on a single claim, agreeing to pay the expenses incurred in defending a suit against the insured, providing that no action could be maintained by the insured against the in- surer unless begun to recover a loss defined by the policy after final judgment rendered in an action by the injured employee against the insured employer, jn which the insured agreed not to voluntarily assume any liabil- ity nor interfere in any negotiations or legal proceedings conducted by the insurer, nor, except at its own expense, to settle any claim or to incur any expense without the consent of the insurer, except for imperative surgical relief, and in which the insurer re- served the right to settle any claim or suit, the insurer did not obligate itself to settle a claim which could be settled for $5,000 or less, and so relieve the insured of liability; and hence, where the insured suffered a judg- ment for $12,500 and the insurer contributed $5.000, the insured cannot recover the bal- ance of $7,500 which he was required to pay in satisfaction of the judgment. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C- 399. (Annotated) 31. Under such policy, the insurer is not made the agent of the insured for the pur- pose of making a settlement, but has the right to consider its own interests as para- mount to those of the insured, and to decide whether they will be best subserved by set- tling or contesting the claim; and hence there can be no breach of such duty so as to lay a foundation for the insured's action in tort for the insurer's failure to settle with- out trial. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) 32. Under such policy, there is no liability on the part of the insurer until a judgment is recovered by an employee and paid by 'the insured. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) 33. In such a policy the parties have ,a right to insert such provisions as they see fit so long as they do not contravene public policy, and the provision that the insurer shall have the exclusive right to settle claims, which right may in good faith be ex- ercised to its full extent by the insurer for : (1818C-1918E). its own benefit and advantage, is valid. Wis- consin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) 34. As to such policies, the courts have no power to add or subtract anything from the contract actually made, but must so inter- pret it as to carry out the intention of the parties. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) 35. Where the insurer in a casualty policy assumes the duty of defending and negli- gently breaches such duty, the insured has a remedy. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 19180-399. (Annotated) 36. Under a policy indemnifying an em- ployer against loss from personal injury to his employees, wherein the insurer agreed, to defend, in the name and on behalf of the in- sured, any suit against the insured for dam- ages on account of personal injury to his em- ployees, and reserved the right to settle any claim or suit, and wherein the insured agreed not to voluntarily assume any liability, or to interfere with proceedings conducted by the insurer- or to settle any claim, the power of settlement given to the insurer may not be used for the purpose of fraud or oppression or be exercised in bad faith. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) b. Actions. 37. Allegations of bad faith of insurer. > Allegations of a complaint, in an action by an employer insured under a policy indemni- fying him for loss from personal injury to his employees, that the insurer knew the haz- ards attending litigation against an employ- er and the liability of suffering a large judg- ment, that it was bound to settle a claim before trial, and that, instead of acting on be- half of the insured, it acted in its own inter- ests and in bad faith toward the insured, and failed to settle, whereby a larger judg- ment was obtained, requiring the insurer to pay the maximum of the claim and the in- sured to pay the excess of the judgment, lib- erally construed on demurrer, and in view of the failure to move to make it more definite and certain, sufficiently allege bad faith. Wisconsin Zinc Co. v. Fidelity, etc. Co. (Wis.) 1918C-399. (Annotated) 39. Declaring on "binder." Where the pe- tition discloses that ad interim employers' liability insurance was issued for ten days from the date of the "binder" and "pending the issue of a regular policy at the rate and subject to limits of liability stated therein, and subject also to the agreements and con- ditions of the policy form E. L. 20, ... as issued by this company, . . ." and the plaintiff declares upon the "binder" alone, without setting forth the policy subsequent- ly issued pursuant to the terms of the "bind- er," and declaring thereupon as a part of the contract of insurance, a demurrer to the pe- tition should be sustained. Aetna L. Ins. Co. v. Bradford (Okla.) 1918C-373. (Annotated) INSUEA^CE. 127 7. Automobile Insurance. 39. Liability insurance. Plaintiff having been run down and injured by defendant's motorcar, and defendant having a policy protecting him from loss, after recovering judgment brought proceedings to reach and apply the insurance money to the satisfac- tion of the judgment. The policy declared that it did not cover loss from liability for any suit based on injuries or death, caused while the motorcar was being driven by any person under the age of sixteen years. The court found that a son of defendant under sixteen years of age had been driving the car ; but that just previous to the accident de- fendant took the wheel from his son, telling him to get out of the way, and thereafter the son did nothing other than to sound the horn. It is held that even though defendant was found not to have been in a position fa- vorable to the operation of the car, yet as he was the dominating mind and had re- moved his son, the accident was one falling within the policy. Williams v. Nelson (Mass.) 1918D-538. (Annotated) 40. Rights of injured person against in- surer. Under St. 1914, c. 464, permitting a judgment creditor of one insured by contract of casualty policy against loss or damages on account of bodily injury or death by acci- dent arising from causes from which the insured is responsible to proceed, having re- covered judgment for a cause covered by the contract of insurance in equity against the insured and insurer to apply insurance money to the satisfaction of the judgment; one run down by insured's motorcar may, having recovered judgment against him, pro- ceed to that extent against the insurer, it being the manifest purpose of the statute to include such cases. Williams v. Xelson (Mass.) 1918D-55S. 41. Where a wife was run down and in- jured by the motorcar of one insured against losses resulting from the operation of a car, she can, under the statute, compel applica- tion of the insurance money to the satisfac- tion of her judgment, but the husband, who recovered damages for the injury of his wife, cannot, for the statute is expressly limited to a judgment for "bodily injury" which does not include the husband's financial loss or loss of consortium. Williams v. Nelson (Mass.) 1918D-538. 42. St. 1914, c. 464, permitting a judgment creditor of one insured by contract of casual- ty insurance against loss on account of bod- ily injury of any person from causes for which the insured is responsible to proceed in equity against the insured and insurer to apply the insurance money to satisfaction of judgment, is constitutional. Williams v. X( [son (Mass.) 1918D-538. 43. The superior court has jurisdiction of a petition by . judgment creditor of one in- sured by contract of casualty insurance to reach and apply under St. 1914, c. 464, in- surance money to the satisfaction of his judgment, for the court has general chancery jurisdiction, and Rev. Laws, c. 159, 3, con- Jers upon it jurisdiction of special equitable suits by creditors to reach and apply proper- ty of a debtor which cannot be attached or taken on execution in actions of law. Wil- liams v. Nelson (Mass.) 1918D-538. 44. The exclusive jurisdiction in equity conferred upon the supreme judicial court by Rev. Laws, c. 159, 2, is confined to matters not within the general principles of chancery jurisprudence, and hence does not give the supreme judicial court jurisdiction over such proceeding. Williams v. Nelson (Mass.) 1918D-53S. 8. Credit Insurance. 45. Failure to agree on terms of policy. Where all the negotiations between the agents of a credit insurance company, and persons desirous to secure insurance, are in anticipation of a written policy or policies to be issued, which policy or policies are not issued because the parties are never able to agree on terms, no oral contract of insurance or indemnity is made. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. (Annotated) 46. Failure of insured to read policy. If an applicant for credit insurance did not see fit to read the applications or the conditions of the policies to which the applications ex- pressly referred, the rights of the parties are not to be affected; there having been noth- ing to prevent him from informing himself of their contents, if he desired. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. (Annotated) 47. Refusal to accept particular risk. When a credit insurance company learns that a company whose account was sought to be insured had become bankrupt, it has a perfect right to refuse to issue any policy in- suring the bankrupt company's account. Cauman v. American Credit Indemnity Co. (Mass.) 1918E-841. (Annotated) 9. Health Insurance. 48. Validity of provisions. A condition in a policy of health and accident insurance, voiding it for nonpayment of premiums, is valid and self-executing. Rocci v. Massachu- setts Accident Co. (Mass.) 1918C-529. 49. A stipulation in a policy of accident and health insurance that there can be no re- covery except during continuous confinement within the house is reasonable and valid, where the rate of premium is based upon the unlikelihood of such confinment. Rocci v. Massachusetts Accident Co. (Mass.) 1918C- 529. ( Annotated ) 50. Conflict between policy and by-law. Where a health policy provided that indem- nity should be paid "in one sum," and a by- law provided for payment "in ten annual in- stalments," the policy will prevail, if it is within the power of the association under its charter or articles of organization. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. 51. What constitutes continuous confine- ment to house. Where a policy of accident and health insurance provided that there 128 ^. CAS. DIGEST (1818C-1918E). should be no liability unless the insured was continuously confined to the house, evidence that the insured stayed two weeks in his own house, went to his sister's house and stayed two weeks, went to the city hospital for three weeks and another hospital for four weeks, went home, went to a town several miles away and entered another hospital, fails to show liability under the policy; "con- tinuously," as used therein, meaning uninter- ruptedly, in unbroken sequence, without in- termission or cessation, and without inter- vening time, and "within the house" mean- ing, in the absence of some exigency, within one house. Rocci v. Massachusetts Accident Co. (Mass.) 1918C-529. (Annotated) 52. Excuse for nonpayment of premium. Under a condition in a policy of health and accident insurance voiding it for nonpay- ment -of premiums, failure to pay is not ex- cused by illness of the insured before the payment was due. Rocci v. Massachusetts Accident Co. (Mass.) 1918C-529. 53. Proof of sickness. Where a policy of .accident and health insurance required proof of sickness to be made within thirty days from the date of termination of the disabil- ity, and the insured made a claim covering a year's disability in good time, but the claim was valid only for the first month, failure to give the notice and proof within thirty days of the termination of the liability of the company did not forfeit the policy. Roc- ci v. Massachusetts Accident Co. (Mass.) 1918C-529. INTENT. To violate of local option law, see INTOXICAT- ING LIQUORS, 17. INTENT TO KILL. Assault with intent to kill, see ASSAULT, 1, 2. INTEREST. In estimating compensation for taking of land, see EMINENT DOMAIN, 8. Liability of public officer for interest on money in his hands, see PUBLIC OFFI- CERS, 14. On advancements, see ADVANCEMENTS, 2, 3. On legacies, see WILLS, 54, 55. On unpaid stock subscriptions, see CORPORA- TIONS, 34. 1. Validity of contract provision against interest. A provision in a contract of insur- ance "that in any action at law or equity, brought to enforce the collection of this cer- tificate, or any amount alleged to be due thereunder, claimant or claimants shall not be entitled to receive or recover interest on the amount thereof," is against public pol- icy and will not be enforced, so as to cut off interest from a judgment duly rendered against the company, finch a provision tends to encourage, promote, and prolong litigation over a just claim, which ought not to be lit- igated; therefore, in principle, it comes un- der the condemnation of the law relating to champerty and maintenance. Modern Broth- erhood, etc. v. Bailey (Okla.) 1918E-744. (Annotated) INTERNAL REVENUE. Admissibility of evidence of possession of federal revenue stamp, in prosecution for illegal sale of liquor, see INTOXICAT- ING LIQUORS, 12. Admissibility of certificate showing grant of license in prosecution for illegal sale ol liquor, see INTOXICATING LIQUORS, 10, 11. INTERNATIONAL LAW. See CONFLICT OF LAWS. 1. Suit against foreign government. The bringing of an action by a foreign nation in a court of the United States to recover a de- posit placed to its credit in a bank is not a waiver of its immunity as a sovereign from suit by other parties, and the court is with- out jurisdiction to permit the defendant by interpleader to substitute as defendant an- other party claiming a lien on the deposit as a creditor of the palintiff, but who alleges no facts which would make it a trust fund. Kingdom of Roumania v. Guaranty Trust Co. (U. S.) 1918E-524. (Annotated) 2. A foreign nation at war which makes contracts in the United States for supplies or equipment for its armies does not thereby divest itself of its sovereign character and become subject to suit as a private individ- ual. Kngdom of Roumania v. Guarantv Trust Co. (U. S.) 1918E-524. (Annotated") INTERSTATE COMMERCE. Excise tax on foreign corporation as burden on interstate commerce, see CORPORA- TIONS, 46. Taxing income produced by interstate com- merce as burden on interstate commerce, see TAXATION, 59. 1. Power of states. Where commerce in entirely intrastate, the state's power to reg- ulate is exclusive. Western Union Tel. Co. v. Lee (Ky.) 1918C-1026. 2. Legislation which is a mere aid to in- terstate commerce may be enacted by a state, although it may incidentally affect that commerce. Western Union Tel. Co. v. Lee (Ky.) 1918C-1026. 3. Where Congress has not assumed juris- diction over a given subject of commerce, but may do so, in the absence of congressional action, a state may exercise its police power over the subject. Western Union Tel. Co. v. Lee (Ky.) 1918C-1026. INTERSTATE COMMERCE COM. INTOXICATING LIQUORS. 129 4. The silence of Congress on a subject of commerce over which it has jurisdiction, and which requires uniform regulation, is equiva- lent to affirmative legislation that such sub- ject should be free from state enactments. Western Union Tel. Co. v. Lee (Ky.) 191SC- 1026. 5. Telegraph lines or messages as inter- state commerce. The transmission of intelli- gence bv wire is "commerce." Western Union Tel. Co. v. Boiling (Va.) 1918C-1036. 6. Telegraph lines are instruments of com- merce, and messages transmitted over such lines constitute a portion of such commerce Western Union Tel. Co. v. Lee (Ky.) 1918C- 1026. 7. A telegraph message sent from one point within the state to another like point, but passing through part of another state in transit, constitutes "interstate commerce." Western Union Tel. Co. v. Lee (Ky.) 1918C- 1026. 8. The transmission of a telegram between two points within the state over a line which passes out of the state and requires relaying the message outside of the state is ''inter- state commerce." Western Union Tel. Co. v. Boiling (Va.) 1918C-1036. 9. Federal control over telegraph lines. By enactment of Act Cong. June 18, 1910, c. 309, 36 Stat. 544 (4 Fed. St. Ann. 2d ed. 337), making Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, applicable to interestate telegraph messages, and giving company power to make different charges for different classes of messages, Congress in- tended to take control of the entire regula- tion of interstate telegraph lines to the ex- clusion of state regulation. Western Union Tel. Co. v. Lee (Ky.) 1918C-1026. (Annotated) 10. Exclusion of product of child labor. Act Sept. 1, 1916, c. 432.. 39 Stat. 675 (Fed. St. Ann. Pamph. Supp. Xo. 8, p. 137), pro- hibiting the transportation in interstate com- merce of the products of mines or factories in which within thirty days prior to removal children under the age of fourteen were em- ployed, or children between the ages of four- teen and sixteen were employed or permitted to work more than eight hours a day or more than six days in any week, is invalid, and cannot be sustained as an exercise by Congress of its power to regulate commerce between the states, for the products of child labor are in themselves inherently harmless, for the act instead of being one regulating commerce, which consists of intercourse and traffic and includes the transportation of per- sons and propety as well as the purchase, sale, and exchange of commodities, would serve to bring under federal control to the practical exclusion of the authority of the states all manufacture of articles intended for interstate shipment. Hammer v. Dagen- hart (U. S.) 1918E-724. (Annotated) 11. Such act cannot be sustained on the theory that Congress has power to control interstate commerce in the shipment of child- made goods because of the effect of such goods in states where the evil of child labor Ann. Cas. Dig. 1918C-E 9. has been recognized by local legislation and the right to employ child labor has been more rigorously restrained than in the state of production. Hammer v. Dagenhart (U. S.) 1918E-724. (Annotated) 12. Act Sept. 1. 1916 (Fed. St. Ann. Pamph. Supp. No. 8, p. 137), attempting to regulate child labor in the states by prohibit- ing the transportation in interstate com- merce of certain child-made goods, is invalid, being an invasion of the powers of the states, whose inherent power to regulate their own local affairs has never been delegated to the general government. Hammer v. Dagenhart (U. S.) 1918E-924. (Annotated) INTERSTATE COMMERCE COMMIS- SION. Effect of filing form of bill of lading with commission, see CARBIERS OF GOODS, 4. INTOXICATING LIQUORS. 1. Licenses, 129. 2. Offenses: a. Furnishing Prescript ion. 130. b. Importation of Liquor, 130. 3. Prosecutions: a. Evidence: (1.) Admissibility, 130. (2.) Sufficiency, 130. b. Instructions, 131. c. Punishment, 131. Meaning of term "liquor saloon," see WOBDS AND PHEASES, 7. Refusal of license as releasing liability of lessee, see LANDLOBD AXD TENANT, 7. Saloon as place of public accommodation within statute forbidding denial of rights on account of race or creed, see CIVIL RIGHTS, 1, 2. Unlawful sale of liquor on premises as bar- ring recovery for rent, see LANDLOBD AND TENANT, 12-15. 1. Licenses. 1. Injunction against grant of license. A railroad company maintaining a passenger depot is held on the evidence to sustain such special damage from the sale of intoxicants immediately adjacent thereto to entitle it to sue for an injunction to test the validity of the grant of a license at that location. Carr v. Washington, etc. R. Co. (D. C.) 191SD- 818. 2. The right to certiorari to test the validi- ty of the grant of a liquor license -is not so clear and plain as to preclude resort to a suit for an injunction for that puruose. Carr v. Washington, etc. R. Co. (D. C.) 1918D- 818. 3. The right to prosecute criminally a per- son to whom a liquor license has been granted illegally does not preclude relief by injunc- tion to a person sustaining special damag - from the sale of liquor under the license. 130 CAS. DIGEST (1918C-1918E). Carr v. Washington, etc. R. Co. (D. C.) 1918D-818. 2. Offenses. a. Furnishing Prescription. 4. Construction of statute. Laws 1905, c. 123, 1, providing that it shall be unlawful for any physician to furnish a prescription for any kind of intoxicating liquors to be used as a beverage, or for any purpose except for medicinal purposes in case of actual sick- ness, applies only to cases where the applica- tion for the prescription is made by some one other than the person alleged to be ill. State v. Morton (S. D.) 1918E-913. (Annotated) 5. Who is "patient." Laws 1905, c. 123, 2, making it unlawful for any physician to furnish any person, a prescription for any kind of intoxicating liquors except to patients of such physician, where the patient is afflicted with some disease and his condition is such that in the opinion of the physician, the tak- ing of intoxicating liquors would be benefi- cial, applies where a person himself seeks the advice of the physician and states his ail- ments, and such person is a "patient," within the meaning of the act. State v. Morton (S. D.) 1918E-913. (Annotated) 6. Good faith. In prosecution of physician for furnishing prescription for intoxicating liquors under Laws 1905, c. 123, the essence is whether or not a physician acted in good faith in giving the prescription to his patient. State v. Morton (S. D.) 1918E-913. (Annotated) 7. Burden of proof. In prosecution under Laws 1905, c. 123, against physician for fur- nishing prescription for intoxicating liquors to a patient, the burden of proof is upon the state to show beyond a reasonable doubt a violation of the statute. State v. Morton (S. D.) 1918E-913. (Annotated) b. Importation of Liquor. 8. What constitutes. Intoxicating liquors are introduced into the state, within Const, art. 23, 1, providing that intoxicating liq- uors shall not be introduced into the state under any pretense, when the liquors have been intentionally transported into the state as a result of a transaction set on foot by a single impulse, and operated by an uninter- mittent force, no matter how long a time it may occupy, nor the distance over which it may be exerted, either within or without the state, so long as the transaction results in bringing the liquor within the territorial jurisdiction of the state. Reynolds v. State (Ariz.) 1918D-879. (Annotated) 9. vtfhere offense committed. The offense of introducing liquors into the state is not completed till they reach their destination, but the offense is committed in every portion of the state over which they are transported, and if the route is in part in one county, and in part in another, the offense is committed in part in each county, and may be prosecuted in either county under Pen. Code 1913, par. 812, providing that when a public offense is committed in part in one county and in part m another, or the acts or effects thereof req- uisite to consummation of the offense occur in two or more counties, the jurisdiction shall be in either county. Reynolds v. State (Ariz.) 1918D-879. (Annotated) 3. Prosecutions. a. Evidence. (1) Admissibility. 10. Certificate showing federal license-. The provisions of the Act No. 40 of 1908 that, in all criminal prosecutions for the offense of retailing intoxicating liquor in vio- lation of law, the state may introduce in evidence, in support of the charge, a certifi- cate from the internal revenue collector show- ing that a United States internal revenue license or permit was issued to the person on trial, and that such certificate shall be prima facie evidence that the person is guilty of the offense of retailing intoxicating liquor in violation of law, is unconstitutional and invalid, because it contravenes the provision in article 9 of the constitution of this state that "the accused in every instance shall have the right to be confronted with the witnesses against him." State v. Wilson (La.) 1918D- 789. (Annotated) 11. A certified copy of a record kept in the office of the collector of internal revenue is not what the Act No. 40 of 1908 provides shall be admissible in evidence in a prosecu- tion for retailing intoxicating liquor in vio- lation of law and be prima facie evidence of tin guilt of the party accused. A certified copy of such a record would not, of itself, prove that anyone had sold intoxicating liq- uor, and would not alone justify the convic- tion of a person accused of selling intoxicat- ing liquor in violation of law. State v. Wil- son (La.) 1918D-7S9. (Annotated) 12. Possession of federal revenue stamp. Under Local Option Law, 17 (Kurd's Rev. St. 1913, c. 43, 41), a certified copy of in- ternal revenue special tax stamp is admis- sible, though with no evidence of posting, to show the character of the liquor sold. People v. Brown (111.) 1918D-772. 13. Copies of waybills. In a prosecution for illegal liquor selling, copies of original waybills are competent as original evidence where such copies are signed as receipts by defendant, who was not only an individual dealer, but also an express company. People v. Brown (111.) 1918D-772. 2. Sufficiency. 14. The evidence is held to be insufficient to show that accused issued a prescription for intoxicating liquors intended to be used as a beverage in violation of Laws 1905, c. 123. State v. Morton (S. D.) 1918E-913. 15. Proof of corpus delicti. The corpus delicti of the offense of introducing liquor in- to the state may be established by circum- INTOXICATION JUDGMENTS. 131 slant ial evidence. Reynolds v. State (Ariz.) 1918D-879. (Annotated) 16. In a prosecution for introducing liquor into the state, evidence held sufficient to establish the corpus delicti, independent of admissions and statements by accused. Rey- nolds v. State (Ariz.) 1918D-879. (Annotated) b. Instructions. 17. As to Intent. An instruction that it was aot necessary to prove defendant know- ingly and wilfully violated the Local Option Law, but only that he did violate it, is not objectionable. People v. Brown (111.) 1918D- 772. 18. As to purpose of importation. In a prosecution for introducing liquor into the state, a charge that under the law, if the evidence warrants it, the jury may find de- fendant guilty, for any person who intro- duces into the state any ardent spirits, etc., shall be guilty of a misdemeanor, is not ob- jectionable as requiring the jury te convict even if the liquor were introduced for a law- ful purpose, where no issue as to the purpose of introducing the liquor was raised at the trial. Reynolds v. State (Ariz.) 1918D- 879. (Annotated) 19. In a prosecution for introducing liquor into the state, the defendant could suffer no injury from the failure to instruct as to the defense of lawful purpose of the introduc- tion, when the purpose he was shown to have admitted was unlawful. Reynolds v. State (Ariz.) 1918D-879. (Annotated.) c. Punishment. 20. Sentence not excessive. Where de- fendant was active in peddling blank orders and ordering and delivering beer in viola- tion of the Local Option Law, a sentence of $75 and fifteen days imprisonment on each of eight counts and $100 and fifty days on an- other count is within the discretion of the court. People v. Brown (111.) 1918D-772. INTOXICATION. As affecting voidability of contract, see CON- TBAOTS, 1. INVITEE. IHity owed to invitee in store, see NEGLI- GENCE, 1. IRRIGATION. Liability of state for damages caused by neg- ligent operation of irrigation system, Bee S*TATES, 7. ITEMIZED STATEMENT. Itemized statement of account as evidence, see ACCOUNTS, 3, 4. JEOPARDY. See FOEMEB JEOPARDY. JITNEYS. See CABBIEBS OF PASSENGERS, 19, 20. JOINT TENANTS. See TENANTS IN COMMON. JOINT TORTFEASORS. Release of joint tortfeasor, see RELEASE AND DISCHARGE, 2-7. Injuries resulting from maintenance of wires in proximity to those of another com- pany, see ELECTRICITY, 10. JUDGES. See COURTS; JUSTICES OF THE PEACE. Affidavit of judge to supplement record on appeal, see APPEAL AND ERROR. 23. 1. Term as including justice of the peace. Within Const, art. 7, 1, 2, as amended November 8, 1910, providing that the judicial power shall be vested in the supreme court and such other courts as may be created by law, that the judges thereof shall be elected for six years, and that the courts and judi- cial system, except as expressly changed by the amendment, shall remain as at present till otherwise provided, a justice's court is a "court" and a justice of the peace a "judge;" the original sections providing for justices of the peace with limited judicial powers. Web- ster v. Boyer (Ore.) 1918D-988. (Annotated) INVOICE VALUE. Definition, see WORDS AND PHRASES, 5. IRON SAFE CLAUSE. See FIRE INSURANCE, 10-13. JUDGMENTS. 1 Requisites and Validity in General, 132. 2. Conformity to Pleadings, 132. 3. Judgment Non Obstante Veredicto, 132. 4. Judgment on Pleadings, 132. 5. Lien, 132. 6. Default Judgment, 132. 132 ANN. CAS. DIGEST (1918C-1918E ). 7. Res Judicata: a. In General, 133. b. Persons Concluded, 133. 8. Collateral Attack, 133. Construction of evidence in motion for non- suit or for judgment non obstante vere- dicto, see DISMISSAL AND NONSUIT, 3. Decision or judgment of appellate court, see APPEAL AND ERROR, 104-110. Default judgment in justices court, see JUS- TICES OF THE PEACE, 1-4. Effect of decree of annulment, see MARRIAGE, 15. Effect of judgment against garnishee as against principal defendant, see GAR- NISHMENT, 3. Effect on attachment of failure to docket judgment in lien docket, see ATTACH- MENT, 6. Faith and credit of foreign judgment, see CONFLICT OF LAWS, 5. Finality of decree for distribution, see EX- ECUTORS AND ADMINISTRATORS, 16. In quo warranto proceedings, see Quo WAU- RANTO, 7-9. Lien of attorney on judgment, see ATTOR- NEYS, 14-16. Matters concluded by judgment of dismis- sal of amended complaint, see PLEADING, 22. Satisfaction of judgment for libel as barring suit against persons jointly liable, see LIBEL AND SLANDER, 34, 35. Setting aside decree for distribution, see EX- ECUTORS AND ADMINISTRATORS, 17-20. Settlement of judgment in violation of at- torney's lien, see ATTORNEYS, 15, 16. Summary judgment against surety in in- junction bond, see INJUNCTIONS, 22, 23. Validity of judgment against partners in action against firm, see PARTNERSHIP, 5. 1. Requisites and Validity in General. 1. Personal decree. Where, in a suit to collect a debt secured by an alleged lien on land, the existence of the debt is established, but the lien is not, it is error to dismiss plaintiff's suit without a personal decree against the debtor. Linn v. Collins (W. Va.) 1918C-86. 2. Conformity to Pleadings. 2. Under Rev. Code, 186, providing that the relief granted to a plaintiff, if there is no answer, shall not exceed that which he has demanded in his complaint, but that in other cases the court may grant him any relief consistent with the case made by the complaint and embraced within the issue, a party is entitled to such relief as his evi- dence, together with the facts averred in his pleadings, justify, regardless of the re- lief demanded in his prayer. Jones v. Ceres Invest. Co. (Colo.) 1918C-429. 3. In such case the sufficiency of the repli- cation should have been tested by denfurrer, so that, if bad, plaintiff would have an op- portunity to amend, which was denied, by sustaining the motion for judgment on the pleadings. Jones v. Ceres Invest. Co. (Colo.) 1918C-429. 3. Judgment Non Obstante Veredicto. 4. Direction of verdict improperly refused. Where defendant under the pleadings is entitled to a directed verdict, but its motion is denied, it is not entitled to judgment on motion therefor notwithstanding the verdict. Lancaster Electric Light Co. v. Taylor (Kv. ) 1918C-591. 4. Judgment on Pleadings. 5. Demurrable defects. Rev. Code, 53, declares that the sufficiency of the pleading shall be determined as prescribed in the act and not otherwise; and section 55 provides that the complaint shall contain a statement of the facts constituting the cause of ac- tion and a demand for the relief claimed. In an action for damages for breach of a contract to convey land, setting forth the alleged cause of action, to which a de- murrer was overruled, the answer, denying many allegations of the complaint, alleged that, when he made the contracts, plaintiff knew that defendant owned the land, that the contracts were those of a certain named person, that defendant's name was not men- tioned therein, and that such person was not its agent, which allegations were denied by the replication, except the allegation that plaintiff, when he made the contract with such person, knew that the lots belonged to defendant, and that its name was not re- ferred to in the contract. It is held that the granting of defendant's motion for judg- ment on the pleadings was improper, as a motion therefor cannot take the place of - a general demurrer, and, unless the pleadings show affirmatively that plaintiff is without right, should not be entertained. Jonea v. Ceres Invest. Co. (Colo.) 1918C-429. 5. Lien. 6. Against community property. A judg- ment against the maker of a bond, guar- anteeing a debt to plaintiff, binds the com- munity property of the maker and his wife. Union Securities Co. v. Smith (Wash.) 1918E-710. 7. Limitation to interest of debtor. Rule followed that an attaching or judgment creditor cannot subject to the satisfaction of his claim or judgment any greater interest in property than that owned by the debtor. Saylor v/Crooker (Kan.) 1918D-473. 8. Where a debtor holds only the naked le- gal title to property, and that title was vest- ed in him only as a mortgagee, and the mort- gage itself was unenforceable and void, an attaching or judgment creditor cannot sub- ject such property to the payment of the debts or judgment liabilities of the debtor. Saylor v. Crooker (Kan.) 1918D-473. 6. Default Judgments. 9. Opening default. Order opening de- fault judgment in suit for personal injuries JUDICIAL XOTICE JUDICIAL SALES. 133 against employers is held to be well within the trial court's discretion; it appearing that defendants relied upon defense being made by their liability insurance company. Sem- pier v. Goemann (Wis.) 1918C-670. 7. Res Judicata. a. In General. 10. Identity of cause of action. To sus- tain a plea of res adjudicata, the evidence must show that the cause of action is the same. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 19180-110. 11. An action for permanent total dis- ability, in which it was determined that the plaintiff was not totally disabled, and was acting as a justice of the peace, is not a bar to a later action for disability at a later date when he was not acting as a jus- tice, and the infirmities were the same, except that they had grown worse. Eminent Household of Columbian Woodmen v. Bunch (Miss.) 1918C-110. 12. Immaterial differences in facts. Judgment for a landowner in her suit against a railroad for damages to her land by the negligent construction of the railroad over a water course near the land, which changed the stream's course and caused the land to overflow, is conclusive in the landowner's subsequent suit for damages from the same cause, though the parties stipulated that since the first suit there was an addition to the road's trestle, and an enlargement of the passage for water; the landowner's proof showing that the change did not lessen, pre- vent, or in any manner affect the overflow caused by the road's negligence in construct- ing its railway so as to cause a sudden chang- ing of the course of the stream near her land. Bush v. Stephens (Ark.) 1918E-259. 13. Matters concluded. In an action to cancel deeds and set aside registration of land under Laws 1903, p. 311, the trial court properly declines to consider the regularity of the original tax deed, or the evidence pre- sented in a case in which the title was at- tempted to be quieted, because the decree, etc., in the quieting title action are mat- ters of evidence upon which the trial court acted in the registration suit, and, the pro- ceedings in the registration suit being regular, the trial court in the instant suit is not at liberty to pass upon the sufficiency of the evidence upon which the decree of registra- tion was based. White v. Ainsworth (Colo.) 1918E-179. 14. Necessity of judgment. Without a judgment the plea of. res adjudicata has no foundation and neither the verdict of a jury nor the findings of a court or referee, even though in a prior action upon the precise point involved in a subsequent action and between the same parties, constit\ite a bar. Albright v. Albright (N. Mex.) 1918B- 542. b. Persons Concluded. 15. Suit in different capacity. A party is bound by and may plead the conclusive- ness of a former judgment only in the same capacity in which he was a party to it. Henry v. Missouri, etc. K. Co. (Kan.) 1918E-1094. 16. A judgment against one in an indi- vidual capacity is not a bar to a claim which is asserted by him in a representative ca- pacity, or as the successor in interest to a corporation which was not precluded by the original judgment. Murphy v. Wilson (N. D.) 1918E-1101. (Annotated) 17. A judgment in favor of a minor in an action brought in his behalf by his father as guardian or next friend, to recover for per- sonal injuries resulting from the negligence of his employer, is not conclusive or binding against the defendant in another action brought by the father in his own right to re- cover for loss of the son's services. Henry v. Missouri, etc. R. Co. (Kan.) 1918E-1094. (Annotated) 8. Collateral Attack. 18. An erroneous decree, not void for want of jurisdiction, is not subject to collateral impeachment. Linn v. Collins (W. Va.) 1918C-86. JUDICIAL NOTICE. See EVIDENCE, 1-5. As to untruth of allegations regarding ren- dition of services, in action for death of child, see DEATH BY WBONGFUL ACT, 19 JUDICIAL SALES. Injunction against execution sale, see IN- JXJXCTIONS, 5-9, 16, 17, 19, 20. 1. Rights of purchaser Defect in return. A purchaser at a sheriff's sale under a mort- gage foreclosure, who pays the price and re- ceives a deed from the sheriff, is not preju- diced because the sheriff makes an imperfect return or makes no return at all. Wolfen- berger v. Hubbard (Ind.) 1918(^81. 2. Where the return of a sheriff making a sale under mortgage foreclosure is silent as to some matter imposed on him in connection with the sale to which the return relates, it will be presumed that the officer did his duty, and it is not error to admit evidence con- firming the presumption. Wolfenberger v. Hubbard (Ind.) 1918C-81. 3. Effect of notice of previous user of land. Where defendant purchased land at partition sale, notice that the land had been used by plaintiff and the public for a right of way for a time insufficient to create title by prescription, and notice of recording of plans showing such use for the same period of time, does not affect his title. Silverman v. Betti (Mass.) 1918C-90. 4. Grounds for setting aside. Mere in- adequacy of price, unless so great as to shock the conscience or amount to evidence of fraud, will not justify the court in refus- ing to approve a sale. Stevenson v. Gault (Ark.) 1918E-433. (Annotated) 134 AXX. CAS. DIGEST 5. Courts will seize upon slight circum- stances to add to the weight of inadequacy of price to turn the scale where it appears that the purchaser is in some measure re- sponsible for it. Stevenson v. Gault (Ark.) 1918E-433. (Annotated) 6. In case where land worth $3,500 was sold at judicial sale for $500, where a bid for $1.000 was withdrawn, and others refrained from bidding because of a map produced at the sale showing that the land was located in a county where land was worthless, and where purchaser who had been upon the land did not inform bidders that the land was not so located, and the administrator of the estate of the owner was taken into a partnership on the deal by the purchaser, the court is justified in setting aside the sale, although no fraud was intended, and the purchaser did nothing to discourage bidding. Stevenson v. Gault (Ark.) 1918E-433. (Annotated) JUNK DEALERS AND JUNK SHOPS. 1. V^idity of license tax. Laws 1916, c. 704, 172, requiring junk dealers to take out an annual license, is not in violation of bill of rights, art. 15, providing that every person ought to contribute his proportion of public taxes according to his actual worth in property; it being a tax upon an occu- pation. State v. Shapiro (Md.) 1918E-196. (Annotated) 2. Laws 1916, c. 704, 172, imposing a license tax upon junk dealers, is not void for uncertainty, although the term ''junk deal- er'' is not defined, as the nature of the busi- ness is commonly known, and may be judi- cially noticed; a "junk dealer" being a per- son engaged in buying and selling old iron or other metals, glass, paper, cordage, or other waste or discarded material. State v. Shapiro (Md.) 1918E-196. (Annotated) 3. Laws 1916, c. 704, 172, basing license fees for the privilege of dealing in junk upon population of the city or county where con- ducted, is based upon an accepted theory of classification, and will be presumed to be rea- sonable, in the absence of conclusive proof to the contrary. State v. Shapiro (Md.) 1918E- 196. (Annotated) 4. Laws 1916, c. 704, 172, is a revenue measure not purporting to have any relation to the police power; and where there is no evidence that fees imposed upon junk deal- ers are excessive, they will be presumed to be fair and reasonable. State v. Shapiro (Md.) 1918E-196. (Annotated) JURISDICTION. See APPEAL AND ERROR; COURTS; VENUE. Of juvenile court, see INFANTS, 8-10. JURY. Affidavit of jurors to correct mistake in ver- dict, see VERDICT, 5, 8, 9. Report of grand jury as privileged communi- cation, see LIBEL AND SLANDER, 14-16. Scope of requirement of secrecy by member of grand jury, see WITNESSES, *2. Summary judgment oil appeal bond as vio- lating right to trial by jury, see APPEAL AND ERROR, 116. 1. Verdict by less than full number Validity of statute. Const. Declaration of Rights, 7, declaring that the right of trial by jury shall remain inviolate, but that a jury trial may be waived by the parties in the manner prescribed by law, prohibits the legislature from allowing a less number than the whole of a petit jury to render a ver- dict, for the words "trial by jury," as used in the constitution, should have their com- mon-law meaning, and the essential elements of such trial are that the jury shall be twelve in number, and shall be impartial, and the verdict shall be unanimous. Minne- qua Cooperage Co. v. Hendricks (Ark.) 1918D-687. (Annotated) 2. Competency of juror Opinion as to merits. A juror who on his voir dire tes- tified that lie had heard detailed what pur- ported to be all the facts by a person who claimed to know all about the case of his own knowledge, and that he had a fixed opin- ion as to the guilt or innocence of the de- fendant that it would take strong evidence to remove, is clearly incompetent to sit as a juror and on a challenge for cause should be rejected, even though on further examina- tion he stated that he could and would, notwithstanding such opinion, act impar- tially and fairly, and render an impartial verdict upon the law and the evidence, and where the defendant exhausts his peremptory challenges, and such juror is retained on the panel, the overruling of the challenge is ground for reversal. Morehead v. State (Okla.) 1918C-416. 3. Peremptory challenges. In a wil 1 con- test, the sole issue being will or no will, the parties proponent and the parties contestant are entitled to but four peremptory chal- lenges. Walsh's Estate (Mich.) 1918E-217. 4. Grounds for challenge Drawing of ex- cessive number. An objection that an ex- cess of names of jurors was drawn does not go to the whole panel, but applies only to the excess, and is only a matter of chal- lenge to the individual jurors drawn in ex- cess. State v. Morse (S. D.) 1918O570. 5. Irregularities in drawing. Under Code Cr. Proc. 320-322, defining a "challenge to the panel" as an objection to all the trial jurors, and providing that it may be found- ed on a material departure from the forms prescribed by law. a challenge to the panel on the ground that the same was not se- lected or drawn in the manner provided ly .statute, that the jury drawers drew from the jury box some names that were not in- cluded in the list summoned to appear as jurors, and that some of the jurors drawn from the box were not summoned and are not present aa jurors, is properly overrule'! for insufficiency of allegations of grounds JUSTICE OF THE PEACE LABOR COMBINATIONS. 135 for a challenge. State v. Morse (S. D.) 19180-570. 6. A challenge to the panel on the ground that the officers, after having drawn from the box the number of names provided for in the order of the court, discarded certain names and drew others in their place, is properly overruled for failing to show, as required by Laws 1913, c. 280, 1, that accused was prejudiced thereby in his substantial rights, though by Pol. Code, 717, the person draw- ing the names has no authority to discard names, so that there was a departure from the forms prescribed. State v. Morse (S. D.) 1918C-570. 7. Juror making affidavit in case. One giv- ing an affidavit that he believes that ac- cused, seeking a change of venue, may obtain a fair trial, may not be challenged as a juror for implied bias under Code Cr. Proc. 339. stating the only causes of a challenge for implied bias, which do not include the giving of such an affidavit as a cause. State v. Morse (S. D.) 1918C-570. 8. One giving to the state's attorney, for use in resisting a motion for change of venue, an affidavit wherein he asserts that he be- lieves that accused can have a fair trial in the county, may not be challenged for ac- tual bias. State v. Morse (S. D.) 19180- 570. 9. Failure to answer challenge. The fail- ure of the state to except or answer a challenge to the panel in advance of the overruling therof by the court is not pre- judicial, where the challenge cannot be sus- tained. State v. Morse (S. D.) 1918C-570. i 10. Ruling on challenge. The discretion of the trial court conferred by Code Cr. Proc. 338, in determining the question of actual bias of a juror, will not be disturbed on ap- peal except for abuse of discretion. State v. Morse (S. D.) 1918C-570. 11. Misconduct Disclosure of state of de- liberations. The mere fact that in response to an inquiry of the court as to how the jury stood numerically, the foreman answered: "Eight for conviction and four " is no ground for a new trial, where it does not appear that the defendant was prejudiced by such misconduct. Poling v. State (Okla.) 1918E-663. (Annotated) JUSTICE OF THE PEACE. As judge, see JUDGES, 1. Justice's Court as court, see JUDGES, 1. 1. Default judgment. Failure to attend court. In an action before a justice of the peace, agreement that the case could not be tried until Wednesday afternoon not amount- ing to an agreement to try the case in vaca- tion, the court being in session on Wednes- day afternoon, the justice had full and com- plete jurisdiction to dispose of it at that time or not, and, it being the duty of de- fendant to have -informed himself that the term was still in session, and to have as- certained what would be done with his case, a default judgment rendered on Thursday morning when the case was reached in due course is not void. Welch v. Hannie (Miss.) 1918C-325. 2. Suspension of trial. A judgment by de- fault in an action before a justice of the peace is not rendered void because the jus- tice, while it was pending, suspended busi- ness in his courtroom to sit as one of the committing justices for an alleged crime oc- curring in his district, although by agree- ment the trial took place in another district. Welch v. Hannie (Miss.) 1918C-325. 3. Effect of errors of justice. In a suit for unliquidated damages, tried before a justice of the peace, the irregular introduc- tion of plaintiff's testimony by statement of his counsel that the testimony was the .same as in a previous trial, and, the jus- tice being judge both of the law and the facts, the failure to introduce testimony as to the amount of damages, are defects ren- dering a default judgment irregular or void- able, but not void, and the irregularity can only be taken advantage of by appeal or writ of certiorari. Welch v. Hannie (Miss.) 1918C-325. 4. Necessity for writ of inquiry. In an ex delicto case, there is no necessity for a writ of inquiry at a trial before a justice of the peace, because, unless a jury is called for, the justice passes upon the questions of liability and amount of damages at the same time, and it is only necessary to introduce testimony showing damages when the de- fault, judgment is taken. Welch v. Hannie (Miss.) 1918C-325. JUSTIFICATION. For utterance of libel, see LIBEL AND SLAN- DER, 36-43. JUVENILE COURTS. See INFANTS, 8-15. LABOR COMBINATIONS. 1. Statutes Affecting, 135. 2. Orders and Rules, 136. 3. Strikes, 13(5. 4. Boycotts, 136. 5. Actions, 136. See LABOR LAWS. 1. Statutes Affecting. 1. Ordinance against picketing. A munic- ipal ordinance defined conspiracies to in- jure trade, business, or commerce as any combination or agreement between two or more persons not to buy from or sell to, or have dealings with any person or persons, or to induce or attempt to induce other persons not to buy from or have dealings with any person or persons, etc., for the purpose or with the intent to compel or force employ- 136 A.X.N. CAS. DIGEST (O9180^918B). ment or discharge from his employment. The ordinance further declared that if any person , alone or in company with others shall carry or display, or cause to be carried or displayed, print, or circulate, or cause to be printed or circulated, any banner, sign, etc., which by its terms directly or indirectly induces' or attempts to induce others not to buy from or sell to or have dealings with any desig- nated person, or shall loiter or parade back and forth, or cause any person or persons to loiter or parade back and forth, in front of, or in the vicinity of, any store, etc., such con- duct shall be prirna facie evidence of a con- spiracy to injure the trade or business of the ' person or persons referred to by the banner, etc., or whose property is thus patrolled. A "strike" is defined as the act of a body of workmen employed by the same master in stopping work all together at a prearranged time, and refusing to continue until some con- cession is granted by the employer, while a "boycott" is denned as a combination to cause a loss to one person by coercing others against their will to withdraw from him their business intercourse, by threats that unless others do so, the combination will cause similar loss to them. It is held that the ' ordinance, though valid as applied to "picket- ing," which is defined as posting members of a trade union on a strike at all the ap- proaches to works for the purpose of ob- serving or reporting the workmen going to or coming from the works, and of using such influence as may be in their power to pre- vent the workmen from accepting work there, it is invalid in depriving workmen of their right to strike en masse; that right having been recognized for many years. Hall v. Johnson (Ore.) 1918E-49. (Annotated) 2. Orders and Rules. 2. Voluntary orders by a labor organiza- tion for the benefit of its members and the enforcement thereof within the organization is not coercion, as members who are not willing to obey the orders are at liberty to withdraw from the organization. Bossert v. Dhuy (N. Y.) 1918D-661. (Annotated) 3. The voluntary adoption by an associa- tion of employees of reasonable rules relat- ing to persons for whom and conditions un- der which its members shall work is not illegal at common law. Bossert v. Dhuy (X. Y.) 1918D-661. (Annotated) 4. An association of individuals may de- termine that its members shall not work for specified employers of labor, and, if the de- termination is in good faith and not through malice or otherwise to injure an employer, that such action does result in incidental injury does not warrant an injunction. Bos- sert v. Dhuy (N. Y.) 1918D-661. (Annotated) 5. Enforcement. The enforcement, by fine or expulsion, of rules adopted by an associa- tion relating to persons for whom members may work, is not illegal. Bossert v. Dhuy (N. Y.) 1918D-661. (Annotated) 6. Work with nonunion employees or ma- terial. It is not illegal for the officers and agents of a trade union to refuse to allow members of the brotherhood to work in plaintiffs' mill with nonunion men or to re fuse to allow its members to work in the erection of materials furnished in a non- union shop. Bossert v. Dhuy (N. Y.) 1918D- 661. (Annotated) 7. The voluntary adoption of a rule not to work upon nonunion made material and its enforcement in a particular case differs from a general boycott of a particular dealer with a malicious purpose to destroy his good will or business, and an act done maliciously for an illegal purpose may be restrained, but, when done in good faith for a legal purpose, may be held to be within the bounds of rea- sonable business competition. Bossert v. Dhuy (N. Y.) 1918D-661. (Annotated) 8. Requiring employment of certain num- ber of musicians. A rule of musicians or- ganized in a union, whereby a theater is com- pelled to employ a number of musicians specified by the union if it wishes to employ any member of the union, though in the theater's opinion the employment of a single musician is the most advantageous way of conducting its business, and the employment of more than one musician will cause it pecuniary loss, was illegal, and subject to injunction, as interfering with an employer's right to a free flow of labor. Haverhill Strand Theatre v. Gillen (Mass.) 1918D-650. (Annotated) 3. Strikes. 9. A strike by a labor union is one of the legal means, which laborers have a right to resort to, to enforce a legal combination. Haverhill Strand Theatre v. Gillen (Ma <=<*.> 1918D-650. 4. Boycotts. 10. Where a combination, as of a labor union, is a legal one, a plaintiff, as an em- ployer, has a right to complain if the par- ties to the combination undertake to enforce it by legal means. Haverhill Strand Theatre v. Gillen (Mass.) 1918D-650. 11. A boycott and threats of intimidation by using physical violence are illegal means of enforcing a legal combination of laborers in a union. Haverhill Strand Theatre v. Gillen (Mass.) 1918D-650. 12. For a union to call upon the public generally to discontinue using plaintiffs' ma- terial and seek to prevent all persons, by communication or otherwise, from dealing with plaintiffs, is illegal. Bossert v. Dhuy (N. Y.) 1918D-661. 5. Actions. 13. Injunction against unlawful acts. If a labor union notifies an employer that it will enforce an illegal rule of the union, which operates to the employer's prejudice, he has a right to bring a bill to have the union enjoined from enforcing it, even in the ab- sence of a strike or of threats on the part LABOR LAWS. 137 of the union, since, when a combination is illegal, a person has a right to have it en- joined in case it operates to hia prejudice, on proving the fact that the persons involved in the combination intend to enforce it. Hav- erhill Strand Theatre v. Gillen (Mass.) 1918D-650. 14. Question of law. Whether the pur- pose for which a combination of laborers is made does or does not justify interference with an employer's right to a free flow of labor is a question of law for the court. Haverhill Strand Theatre v. Gillen (Mass.) 191SD-650. LABOR LAWS. See LABOR COMBINATIONS. Judicial notice of labor conditions of women, see EVIDENCE, 5. Validity of act prohibiting transportation in interstate commerce of products of child labor, see INTERSTATE COMMERCE. 10-12. 1. Federal hours of service act. Unavoid- able accidents causing delay do not excuse a carrier, under the proviso in section 3 of the Hours of Service Act of March 4, 1907 (34 Stat. at L. 1416, chap. 2939, Fed. St. Ann. 1909 Supp. p. 581), 3, ''that the pro- visions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such em- ployee at the time said employee left a ter- minal, and which could not have been fore- .seen," in keeping a train crew on duty beyond the prescribed period in order to complete the regular run after the train had arrived at an intermediate point (a division terminal, but not the terminal for the train crew) at which the company could readily have sub- stituted a relief crew for the men who had then already been on duty for more than the prescribed period. Atchison, etc. R. Co. v. United States (U. S.) 191SC-T94. (Annotated) 2. Requiring toilet rooms for employees. Laws 1913, p. 401, requiring foundries to provide sanitary facilities for workmen, is not invalid, as special legislation, because not applying to all establishments generally, since the word ''establishments" means in- stitutions, and usually applies to concerns of a public nature, and frequently includes the places where they are coiiducted, as well as the physical things connected therewith. State v. Scullin-Gallagher Iron, etc. Co. (Mo.) 1918E-620. (Annotated) 3. "Foundries" are works for the casting of metals, and, the conditions and circum- stances under which foundry employees work being different from those of other employ- ments, Laws 1913, p. 401, requiring foun- dries to provide sanitary toilet facilities for workmen, is not invalid as class legislation. State v. Scullin-Gallagher Iron, etc. Co. (Mo.) 1918E-620. (Annotated) 4. Minimum wage rate for women. Laws 1915, p. 781, establishing a minimum wage for females, does not violate Const. U. S. Amend. 14, by interfering with the right of contract of employer and employees, but is a valid exercise of the state's police power, being intended to protect the health and mor- als of female emplovees. State v. Crowe (Ark.) 1918D-460. (Annotated) 5. It must be presumed that the legisla- ture passed Laws 1915, p. 781, establishing a minimum wage for females to remedy ex- isting perils, and while the minimum wage established must be fair and reasonable, it must be presumed that the legislature prop- erly exercised its power to establish such wage. State v. Crowe (Ark.) 1918D-460. (Annotated) 6. Limiting hours of labor for females Validity of statute. Chapter 45, Laws 1915. limiting hours of labor for females, is un- constitutional, so far as applying to restau- rants, as^ class legislation, under Const. U. S. Amend. 14, because applying fro all hotels and restaurants except those "operated by railroad companies;" the distinction being an arbitrary and unreasonable one. State v. Le Ban-on (Wyo.) 1918D-998. (Annotated) 7. Such statute is unconstitutional, so far as applying to restaurants, as violating Const, art. 1, 34, providing that all laws of a general nature shall have a uniform opera- tion. State v. Le Barron (Wyo.) 1918D- 998. (Annotated) 8. Such statute is unconstitutional, so far as applying to restaurants, as contravening Const, art. 3, 27, providing that in all cases where a general law can be made applicable no special law shall be enacted. State v. Le Barron (Wyo.) 1918D-999. (Annotated) 9. Employees included. Under St. 1913, c. 758, providing that no woman shall be em- ployed in laboring in any mercantile, me- chanical establishment, telegraph office, or telephone exchange more than ten hours in any one day, and that in no case shall the hours of labor exceed fifty-hour in a week, a grocery company, which employs a woman aa cashier in excess of the statutory hours of labor, it being her duty to sit in a "cage" having room for two persons and make change for customers' slips, also doing some bookkeeping, is guilty of a violation of the act. Although the history of the words "in laboring" in such enactments would seem to qualify the word ''employed" so as to exclude from the operation of the statute all em- ployees not engaged in physical labor, such a construction is prevented by the fact that the act includes within its inhibition women in telegraph offices and telephone exchanges whose labor involves mental alertness, rath- er than manual labor. Com. v. John T. Connor Co. (Mass.) 1918C-337. (Annotated) 10. Dressmaking shop. A dressmaker em- ploying from five to ten girls in operating sewing machines, who purchases and fur- nishes materials and makes garments for general sale as well as to special order con- ducts a "manufacturing establishment" within the statute forbidding the employ- 138 A.\\\. CAS. DIGEST (1018C-1918E). mcnt of females for more than eight hours a day in such an establishment. Hotchkiss v. District of Columbia (D. C.) 1918D-683. (Annotated) 11. Such a dressmaking shop is not a "mer- cantile establishment" within the same act. Hotchkiss v. District of Columbia (D. C.) 1918D-683. LABOR UNIONS. See LABOB COMBINATIONS. LACHES. Necessity of finding as to issue excluded by laches, see TBIAL, 11. Of suit to cancel deed from state for fraud, see PUBLIC LANDS, 13, 14. 1. Application to state. The doctrine of laches is applicable to the state. State v. Hyde (Ore.) 1918E-688. 2. Delay in enforcing subscription to cor- porate stock. An action in equity by an in- jured stockholder who has paid for his stock in full against delinquent subscribers, who are also controlling directors of the corpo- ration, for their refusal to call for their own unpaid subscriptions, so that they may be- come part of the corporation's assets to meet its liabilities, in the absence of any showing that the defendants were in any way prejudiced by the plaintiff's action in participating with them in borrowing money with knowledge that their subscriptions were unpaid, and in waiting seven years before bringing the action, or that any change of conditions had taken place during the delay, is not barred by laches; the doctrine of laches, as a defense, being founded on the principle of equitable estoppel which will not permit the late assertion of a right where other persons, by reason of the delay, will be injured. Bergman v. Evans (Wash.) 19180- 848. 3. In such action, laches is not a bar where the illegal acts continued up to the day of the suit. Bergman v. Evans (Wash.) 19180-848. LAND CONTRACT. See VENDOB AND PTTBCHASEB. LAND DEPARTMENT. See PUBLIC LANDS. LANDLORD AND TENANT. 1. Leases: a. Acknowledgment, 138. b. Construction Generally, 138. c. Modification, 138. 2. Possession and Use of Premises: a. Lease of Part of Building, 138. b. Use of Premises, 139. c. Repairs and Improvements, 139. d. Personal Injuries, 139. 3. Assignment or Subletting, 139. 4. Rent, 139. 6. Termination of Lease, 140. Implied trust in proceeds of insurance on buildings constructed by tenant, see TRUSTS AXD TBUSTEKS, 6. Insurable interest of lessee, see FIBE INSUB- ANCE, 2, 3. Placing of excavated material on lot by les- see as waste, see WASTE, 1. Bight of tenant to remove fixtures, see FIX- TUBES, 2-8. 1. Leases. a. Acknowledgment. 1. Necessity. Under the statutes an un- acknowledged lease for over a year is void except as it creates a tenancy from month to month, or other rent period. Jamison v. Reilly (Wash.) 1918D-160. (Annotated) b. Construction Generally. 2. Against lessor. In case of doubt or un- certainty as to meaning of language used in a lease, its provisions will be construed most strongly against the lessor and in favor of the lessee. McClintock, etc. R. Co. v. Aetna Explosives Co. (Pa.) 1918E-1078. 3 Covenant to insure Acts of public en- emy. A covenant in a lease binding the ten- ant to keep the premises insured against lire in a named insurance company or some other responsible company does not obligate him to insure against fire caused by the military operations of the public enemy, where the company named does not insure against risks of that kind. Unjohn v. Kitchens (Eng.) 1918E-294. (Annotated) 4. Showing intent. Acts of the parties to the lease, before and after its making, may be proven to show their intent in making it. Bank of Commerce, etc. Co. v. Burke (Tenn.) 1918C-439. c. Modification. 5. Revoking conditional assent to modifi- cation. Where a tenant, who has consented to the landlord's instalment of a stove in her premises, though the lease calls for furnace heat, writes a letter, informing him of her rights under the lease and demanding fur- nace heat, stating that the stove is unsatis- factory, her conditional assent to the instal- lation of the stove is revoked. Buchanan v. Orange (Va.) 1918D-301. 2. Possession and Use of Premises, a. Lease of Part of Building. 6. Where the subect of a lease is only the floor of a building, the landlord controlling his own land and all the rest of the building. LANDLORD AND TENANT. 139 the rigid principles governing the relation of landlord and tenant, owing to the sanctity with which the common law looked upon land, are relaxed. Buchanan v. Orange (Va.) 1918D-391. b. Use of Premises. 7. Lease for saloon and restaurant Effect of refusal of license. A licensee is not re- leased from liability under a lease for a sa- loon and restaurant, because of a subsequent order of the liquor license commissioners prohibiting further use of the premises for a saloon, even if it was not due to failure to conduct the business lawfully, the lessor not having been responsible for the order, the lessee not being thereby entirely deprived of the beneficial use conferred by the lease, the specified lines of business not being identical or inseparable, a ''restaurant'' being an es- tablishment where meals and refreshments are served, while a "saloon" is a place where intoxicating liquors are sold and consumed, and the lease making no provision for the contingency of inability to secure a saloon license Standard Brewing Co. y. Weil (Md.) 1918B-1143. (Annotated) c. Repairs and Improvements. 8. Covenant of lessor to pay for improve- ments Liability of grantee. Land was leased for an amusement park, the lessee to be entitled to all rents from persons desir- ing to use the premises for amusements All improvements placed on the premises by the lesse to carry out the provisions of the lease, at the expiration of the lease, were to be purchased by the lessor at seventy-five per cent of their original cost. The lease de- clared that covenants should be binding up- on the executors, administrators of the par- ties to the lease. The lessee took possession and constructed improvements and the lessof conveyed his reversion. Rev. St. 1874, c. 80, 15, declares that a lessee shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees, or their representatives for the breach of any agree- ment as such lessee might have against his immediate lessor of the premises. It is held that the agreement by the lessor to purchase the improvements at the expiration of the lease was enforceable against the grantee or assignee of the lessor, though assignees were not mentioned in the lease. Purvis v. Shu- man (111.) 19181X1175. (Annotated) d. Personal Injuries. 9. Negligence of landlord's agent and workman. A cause of action against an agent for the renting of real property is stated in a petition which alleges that the agent contracted at the time of renting the property to repair a walk thereon: that af- terward, being requested by the tenant to repair the walk, the agent employed a man to do the work whom he knew to be care- less, negligent, and incompetent; that after some repairs had been made the agent in- formed the plaintiff, wife of the tenant, that the walk had been inspected and repaired and was all right and safe for her use, al- though after being repaired the walk was in a dangerous and unsafe condition; and that the dangerous condition of the walk caused her to fall and break her arm. Wells v. Hansen (Kan.) 1918D-230. (Annotated) 10. In such a case a cause of action is stated against the workman, where the pe- tition alleges that the workman employed to make the repairs, after making some repairs, informed the plaintiff, the tenant's wife, that the walk had been inspected and repaired and was all right and safe for her use; al- leges that the walk after being repaired was in a dangerous and unsafe condition; and that the plaintiff was injured by reason of the defect in the walk. Wells v. Hanten (Kan.) 191SD-230. 3. Assignment or Subletting. 11. Waiver of provisions. Though a brewing company is prohibited by statute from engaging in the saloon business, such a company is not entitled to be discharged from liability under a lease to it of prop- erty to be used for a saloon, on the ground that it was illegal and void from its incep- tion; it, while admitting of construction that the company itself was to conduct the v saloon, and formally providing that the premises should not be sublet without the lessor's written consent, providing that the business should be conducted in compliance with the law, and the parties having from the outset acted on the theory that the prop- er and practical method of operating under the lease was for the lessee to sublet to one who could legally engage in the business, and the provision against subletting being thus waived and ineffective. Standard Brewing Co. v. Weil (Md.) 1918D-1143. 4. Rent. 12. Unlawful sale of liquor on premises Landlord's knowledge. Where a lease of a building does not itself set forth an illegal intent or use, and where nothing else ap- pears, the lessor is not debarred from recov- ery of rent by his knowledge that the tenant intends to use the premises for the illegal sale of liquor. Bank of Commerce, etc. Co. v. Burke (Tenn.) 1918C-439. (Annotated) 13. If premises are leased for lawful pur- poses, the mere noninterference by landlord with subsequent illegal traffic of his tenant, after becoming aware of it, does not involve him in the tenant's guilt as showing partic- ipation. Bank of Commerce, etc. Co. v. Burke I Tenn.) 1918C-439. (Annotated) 14. Although a lease of a building does not itself set forth any illegal intent or use, if the lessor at the time of leasing knows and intends that the premises shall be used for an illegal purpose, such as prohibited sales of intoxicating liquor, and he does anything in furtherance of the transgression, he can- not recover rent. Bank of Commerce, etc. Co. v. Burke (Tenn.) 1918C-439. (Annotated) 140 . CAS. DIGEST (1918C-191SE). 15. Where a building has long been occu- pied as a saloon, is so outfitted, is offered for rent as peculiarly valuable for a saloon busi- ness, and after the leasing is used for a saloon by the lessee and sublessee with the knowledge of the agents of lessors, although it is leased in terms for use as a "store- house," lessors cannot recover rent. Bank of Commerce, etc. Co. v. Burke (Tenn.) 1918C- 431). (Annotated) 16. Liability of assignor. A landlord by recognizing the assignment of the lease and accepting rent from the sublessee, surren- ders his right to collect rent from the lessee. Jamison v. Reilly (Wash.) 1918D-100. 5. Termination of Lease. 17. Waiver of Notice. A landlord by rec- ognizing the assignment of the lease and ac- cepting rent from the sublessee, waives any notice from the lessee terminating the lease. Jamison v. Reilly (Wash.) 1918D-160. 18. Constructive eviction. Where a lessor of premises which were intended to be used for a millinery shop agreed to furnish fur- nace heat and electric light, his failure to furnish such heat and light, although he did install a stove which soiled the tenant's goods, constitutes a constructive eviction, warranting the tenant in vacating the prem- ises. Buchanan v. Orange (Va.) 1918D-391. (Annotated) LARCENY. Unauthorized use of automobile as larceny, see AUTOMOBILES, 25. LAVATORY. Eight of abutting owner for injury to land by erection of public lavatory, see EMI- NENT DOMAIN, 7. LEADING QUESTIONS. See WITNESSES, 8. LEASE. See LANDLORD AND TENANT. LEG. Meaning of term, see WOBDS AND PHRASES, 6. LEGACIES. See ANNUITIES; WILLS. LEGAL REPRESENTATIVE. See EXECUTORS AND ADMINISTRATORS LEGISLATURE. See STATUTES. LETTERS. Admissibility to prove identity of deceased, see HOMICIDE, 6, 7. Letter as self-serving declaration, see ADMIS- SIONS AND DECLARATIONS. 1. Presumption as to receipt of letter, see EVI- DENCE, 38. Proof of receipt of letters, see EVIDENCE, 42. LEVY. See ATTACHMENT: EXECUTIONS; SALES ; TAXATION. JUDICIAL LAW OF THE CASE. Binding effect of decision in former appeal, see APPEAL AND ERROR, 42. LAW OF THE ROAD. See STREETS AND HIGHWAYS, 7-9. Right of person alighting from car to as- sume performance of duty by automo- bile driver, see AUTOMOBILES, *3, 4. LAWS. See STATUTES. LAWYERS. See ATTORNEYS. LIABILITY INSURANCE. See INSURANCE, 23-44, 39-44. LIBEL AND SLANDER. 1. Statutory Provisions, 141. 2. Nature and Elements, 141. 3. Words Constituting Libel or Slander: a. Construction of Words, 141. b. Charging Commission of Crime, 141. c. Charging Disease, 141. d. Political Criticism, 141. 4. Privileged Communications. a. In General, 141. b. In Respect to Judicial Proceedings, 141. c. Communications between Principal and Agent, 142. d. Comment on Public Affairs. 142. e. Concerning Candidate for Office, 142. LIBEL AND SLANDER. 141 f. Official Communications, 142. g Communication by One Owing Duty to Another, 142. 5. Actions: a. Persons Liable: (1) In General. 143. (2) Joint Liability, 143. b. Defenses, 143. c. Pleading, 144. d. Evidence, 144. e. Province of Court and Jury, 144. f. Instructions, 144. g. Damages, 145. Dismissal of part of defendants in suit for conspiracy and libel, see DISMISSAL AND NONSUIT,* 1. Failure of minister to administer communion as defamation of character, see RELI- GIOUS SOCIETIES, 4. Liability of priest for issuance of letter for- bidding communicants to read or sub- scribe to certain newspapers, see RE- LIGIOUS SOCIETIES, 6. Venue in action for libel, see VENUE, 1. 1. Statutory Provisions. 1. Effect of Penal Statute. St. 1915, 1217, providing the penalty for any false statement as to a candidate for office in- tended to affect a primary, does not change the law on civil liability, but is cumulative to it. Putnam v. Browne (Wis.) 1918C-1085. 2. Nature and Elements. 2. Imputation indirectly made. That a charge is made obliquely and by inference, instead of directly, renders it none the less defamatory. McClintock v. McClure (Ky.) 1918E-96. 3. Circumstances of publication. The time, place, and circumstances attending up- on the alleged slanderous words are an im- portant consideration; not only may the oc- casion and surrounding circumstances rebut the presumption of malice, but a distinction is recognized in many particulars between the same or similar defamatory words, when spoken in passion or the heat of controversy, and when deliberately written or printed, and that which would be actionable as libel may not support an action for slander. Bol- ton v. Walker (Mich) 1918E-1007. 3. Words Constituting Libel or Slander. a. Construction of Words. 4. Construed as a whole. In determining whether statements in a newspaper editorial as to a candidate for office are libelous,, the artide must be construed as a whole. Put- nam v. Browne (Wis.) 1918C-1085 b. Charging Commission of Crime. 5. Charging illegal use of money by candi- date. Under St. 1898, 4543b, prohibiting collection of money for campaign funds, the expenditure of money so collected is unlaw- ful, and a false accusation of such expendi- ture is libelous. Putnam v. Browne (Wis.) 1918C-1085. c. Charging Disease. 6. Imputation of insanity. A charge im- puting a hereditary predisposition to insan- ity, and that plaintiff has done things indi- cating impending insanity, is defamatory and libelous per se, from which malice is or- dinary inferable. McClintock v. McClure (Ky.) 1918E-96. (Annotated) d. Political Criticism. 7. False statements of fact as to use of campaign funds by candidate for judge, though made without malice, are actionable. Putnam v. Browne (Wis.) 1918C-1085. 8. False statements in a newspaper edito- rial implying that plaintiff, a candidate for judge, took part in unlawful distribution of a campaign fund or that he sold his political influence and surrendered his honest belief for money, are libelous. Putnam v. Browne (Wis.) 1918C-1085. 9. Statements in a newspaper editorial that a candidate for judge distributed in Law- ful ways a campaign fund, and received money for using his political influence law- fully, are not libelous. Putnam v. Browne (Wis.) 1918C-1085. 4. Privileged Communications. a. In General. 10. Absolute privilege. If the privilege attending words spoken is absolute, the questions of good faith and absence of mal- ice are immaterial, in an action for slander based thereon. Bolton v. Walker (Mich.) 1918E-1007. 11. Qualified privilege. The rule of qual- ified privilege in the law of slander relates more particularly to private interests, where the occasion casts on defendant a duty or right to communicate to another some mat- ter of special concern . to one or both, or to others for the protection of society or some interest he represents. Bolton v. Walker (Mich.) 1918E-1007. b. In Respect to Judicial Proceedings. 12. Remarks of prosecutor not in course of proceeding. Remarks uttered by a prosecut- ing attorney, criticising an attorney who op- posed him in the trial of a lawsuit, are not justified as within the privilege of the attor- ney, if the remarks were not made in the course of the judicial proceeding. Viosca v. Landfried (La.) 1918C-1193. (Annotated) 13. Although it is the privilege of the pub- lisher of a newspaper to publish a fair state- ment of whatever is said and done in the course of a judicial or other public proceed- ing, it is not within his privilege to publish a severe personal criticism indulged in by an attorney who was engaged in a lawsuit, crit- icising an attorney who was opposed to him therein, if the criticism was made before or after the judicial proceedings, and was no 14:2 ANK. CAS. DIGEST (1D18C -111>K i. part thereof. Viosca v. Landfried (La.) 1918C-1193. (Annotated) 14. Report of grand jury. That a libel- ous unauthorized report was presented in open court by the foreman of the grand jury, purporting to act in behalf of all the mem- bers, and that they were all present, appar- ently acquiescing in what was done is prima facie evidence that all of them acted in or acquiesced in its publication. Bennett v. Stock well (Mich.) 1918E-1193. 15. The report of a grand jury not being privileged, good faith of the members is not a bar to action for libel, but bears only on mitigation of damages. Bennett v. Stock- well (Mich.) 1918E-1193. (Annotated) 16. A grand jury having no authority to make a report, not followed by indictment, reflecting on an official, it is not privileged, even qualifiedly, as regards liability of the members for libel. Bennett v. Stockwell (Mich.) 1918E-1193. (Annotated) c. Communications between Principal and Agent. 17. If the agent for a bonding company, acting in good faith, without malice, and in the exercise of his duty, or information be- lieved to be reliable, wrote the company's state agents that the mother of a person on whose bonds the company was surety had lost her mind, etc., so acting in the exercise of his duty to communicate to the company any facts or information affecting its inter- est, the agent is not liable for libel. Mc- Clintock v McClure (Ky) 1918E-96. 18. The fact that a communication from an agent to his principals is qualifiedly priv- ileged does not change the actionable equality of the words published, but merely relieves from the presumption of malice. McClintock v. McClure (Ky.) 1918E-96. 19. A communication ordinarily libelous per se is relieved from the presumption of malice when written by an agent to his prin- cipals in relation to their business, being qualifiedly privileged, the burden of proof be- ing on plaintiff, in an action against the agent, to show that it was written and pub- lished with malice. McClintock v. McClure (Ky.) 1918E-96. 20. Effect of malice. If defendant, act- uated by malice to express a doubt as tc plaintiff's mental condition, and in order ta bring about a cancellation of plaintiff's bonds in which a bonding company, defendant's principal, was surety, wrote * the company that plaintiff's mother lost her mind, and that his judgment was that they had just as well drop the bond, etc, defendant is liable to plaintiff. McClintock v. McClure (Ky.) 1918E-96. d. Comment on Public Affiairs. 21. A newspaper publication commenting on the organization of a newly elected munic- ipal council, referring to it as a "Tammany" system and stating that a "rake-off' is sus- pected, is held not to exceed, as a matter of law,, the bounds of fair comment on public affairs and to be qualifiedlv privileged. Bul- letin Co. v. Sheppard (Can.) 1918E-151. (Annotated) 22. Ab.solute privilege in the law of slan- der applies more directly to matters of pub- lic concern, in regard to which it is consid- ered for the general welfare that persons should be permitted to express their views more freely and fearlessly than in regard to private matters or persons. Bolton v Walk- er (Mich.) 1918E-1007.. (Annotated) 23. Discussion at meeting of board. Where the board of estimates of a city at a regular meeting was discussing a matter of public interest properly before it, there was an element of privileged communication in remarks made by one ex officio its member. Bolton v. Walker (Mich.) 1918E-1007. 24. Where the board of estimates of the city of Detroit, created by legislative enact- ment, and given a power of restraint in re- lation to taxation formerly vested in the electors, thus exercising a negative function in taxation, demanding the exercise of & semi- legislative discretion, was discussing a matter of public interest properly before it at a regular meeting, when one ex otticio a member of the board, entitled to participate in discussion, but not to vote, made an al- leged slanderous remark regarding another member, the case presents a case of absolute privilege. Bolton v. Walker (Mich) 1918E- 1007. (Annotated) e. Concerning Candidate for Office. 25. By becoming a candidate for judge, a person places his character as to integrity, incorruptibility, and judicial ability before the people for consideration, so that an indi- vidual or a newspaper may in good faith and without malice criticise him in those re- spects even severely and caustically, but in- sult or contempt or false and libelous state- ments of fact are not so privileged. Putnam v. Browne (Wis.) 1918C-1085. 26. Comparison to Judas Iscariot. An ob- vious and thinly veiled reference in a news- paper editorial comparing a candidate for of- fice to Judas Iscariot is a jibe and insult, and not privileged. Putnam v. Browne (Wis.) 1918C-1085. b. Official Communications. 27. One who in good faith and from a sense of public duty states to an officer that another has committed a crime is not liable, though the charge be absolutely false. Put- nam v. Browne (Wis.) 19180-1085. (Annotated) g. Communication by One Owing Duty to Another. 28. Plaintiff was in charge of one of de- fendant's stores, and V. was defendant's gen- eral manager in charge of the territory, in- cluding such store. While V. was taking an inventory, plaintiff left the store without ex- planation, and did not return that day. M., a familiar friend of plaintiff, with whom plaintiff lived, called at the store and in- LIBEL AXD SLAXDEK. quired for palintiff, and V. told him that plaintiff had acted in a very peculiar way, and had gone off without saying anything, and that his stock and his cash were short. It is held that while, it was perhaps not un- natural for V. to tell M. of the shortage, he owed no duty to M. to make such statement, and there was no basis for a claim of priv- ilege. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. 5. Actions. a. Persons Liable. (1) In General. 29. Liability of corporation. A corpora- tion is liable for the slanderous words of its agent if the agent at the time is transacting its business and the slanderous words are spoken in the course of such business and in connection therewith. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. 30. Plaintiff was in charge of one of de- fendant's stores, and while defendant's man- ager was making an inventory left the store without explanation. M., a friend of plain- tiff, stopped at the store and inquired for him, and the manager told him that plaintiff had acted in a very peculiar way and went off without saying anything, and that his stock and his cash were short. It is held that defendant was liable for the manager's language, as he was engaged in its business and acting in its behalf when the words were spoken and they referred to plaintiff's acts in the work for which he was employed. Grand Union Tea Co. v. Lord (U. S.) 19180-1118. (2) Joint Liability. 31. If a libel is the joint act of several per- sons, they may be sued jointly or separately; and, if sued separately, both actions may be prosecuted to judgment, and in neither ac- tion will the liability of the other wrongdoer furnish any defense or mitigation. Morse v. Modern Woodmen of America (Wis.) 1918D- 480. 32. A master and servant, acting together in publishing a libel, may be sued jointly or severally, as in the case of other joint tort- feasors; and, if sued separately, a judgment against one is not a bar to the action against the other until satisfied. Morse v. Modern Woodmen of America (Wis.) 1018D-480. 33. Where the agent of a fraternal order knowingly participates with the order in cir- culating the libel, he becomes jointly liable with it, although his efforts are confined to a part of the territory in which the order cir- culnted the libel; and the injured party may sue both him and the order in separate ac- tions, and prosecute both actions to judg- ment. Morse v. Modern Woodmen of Am- erica (Wis.) 1918D-480. 34. Satisfaction of one judgment. Though, where a libel is the joint act of several persons, actions against each may be prosecxited to judgments, there can be but one satisfaction; and, when one judgment is sat- isfied, it becomes a bar to the other actions. Morse v. Modern Woodmen of America (Wis.) 1918D-480. 35. The payment into court of the amount recovered against the agent will not bar the action against the fraternal order, especially where the time for appeal has not expired, as the right to bring separate actions in- cludes the right on the part of plaintiff to choose which judgment he will accept and satisfy. Morse v. Modern Woodmen of America (Wis.) 1918A-480. b. Defenses. 36. Truth as defense. Truth of the state- ments made is a defense to an action for libel. McClintock v. McClure (Ky.) 1918E-96. 37. Defendant admitting the speaking of the substance of the words charged, though not the exact words, may justify the speak- ing on the ground of their truth. Ray v. Shemwell (Ky.) 1918C-1122. (Annotated) 38. Necessity that justification be broad as charge. In an action for libel, a defense that a part of the statements made was true is incomplete, since the justification must be as broad as the libel. Putnam v. Browne (Wis.) 1918C-1085. (Annotated) 39. Proof of the truth of the words spoken is a good defense in an action for slander, but the justification must be as broad and complete as the misconduct charged. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. (Annotated) 40. Words substantially true. Newspapers are not held to the exact facts or the most minute details of transactions which they publish, the law only requiring that an articfe be substantially true, although they should exercise due care in gathering and publish- ing news. State Journal Co. v. Redding (Ky.) 1918C-332. (Annotated) 41. Where a newspaper article is published in good faith and is substantially true, the defense is complete, although the publication is inspired by malice or ill will. State Journal Co. v. Redding (Ky.) 1918C-332. (Annotated) 42. Where defendant pleads justification in an action for libel, only the substance of the alleged libelous words need be proved to be true to sustain the defense, so that proof that plaintiff used $185 of a campaign fund, where the statement was that he used $385, is suffi- cient to justify the statement. Putnam v. Browne (Wis.)' 1918C-1085. (Annotated) 43. Evidence showing that plaintiff con- cealed and carried away a book belonging to defendant publishing company, his former employer, and claimed by him to have been taken by mistake, supposing it was a book which he had a right to take, for which he was arrested and later discharged, is held to be sufficient to justify the publication of a newspaper article charging him with theft and giving a substantially correct account of the matter, although the evidence may not have been sufficient to establish his guilt beyond a reasonable doubt. State Journal Co. v. Redding (Ky.) 1918C-332. (Annotated) 144 ANN. CAS. DIGEST c. Pleading. 44. Pleading justification. The charge in the slanderous words complained of, "He stole from me/' being general, and not specific, the pleading in justification must aver the acts constituting the stealing, to give plaintiff notice. Kay v. Shemwell (Ivy.) 1918C-1122. 45. In an action for slander for using the words, "He is a damn drunken thief; he has stolen my steer," defendant's answer ad- mitting saying of the plaintiff "if Alex Cain had sold the steer it was the same as steal- ing," and alleging, if that charges him with stealing the steer, that such charge is true, does not plead a justification because of the variance. Cain v. Osier (Iowa) 1918C-1126. (Annotated) 46. Plea in mitigation. In an action for slander, a plea in mitigation must, in its nature, be a confession and avoidance, and not a pleading of some other matter and the justification thereof, and there is no error in striking out a plea which does not admit saying "he is a damned drunken thief; he has stolen my steer," nor the truth of these words as charged, but denies it and alleges that he said "if Alex Cain sold the steer it was the same as stealing,*' and if that charges plaintiff with stealing, the charge is true, as it does not allege mitigating cir- cumstances upon which defendant may repy Cain v. Osier (Iowa) 1918C-1126. 47. Amendment to plea. In an action for slander, where the original answer pleads that the charges made by defendant against plaintiff are true and that they were made in good faith and without malice, an order striking out an amendment to the answer which added nothing to the original plea of mitigation and did not affect plaintiff's char- acter is not error. Cain v. Osier (Iowa) 1918C-1126. d. Evidence. 48. Truth of charge. In an action for libel by imputing to plaintiff a hereditary predis- position to insanity, by a writing in which the defendant stated that the plaintiff's mother had lost her mind, where the defense is that the statements of the letter were true, evidence on both sides of the question whether the mother was sane or insane is admissible, the fact that defendant acted reasonably and upon sufficient information not depriving plaintiff of the right to intro- duce proof of his mother's sanity upon the primary issue of whether the statement was true or false. McClintock v. McClure (Ky.) 1918E-96. 49. In an action for slander, where the title to a steer claimed by defendant and sold by the plaintiff is involved, the exclusion of tes- timony offered by defendant to show the nature of the plaintiff's transfer of title to the steer is error. Cain v. Osier (Iowa) 1918C-1126. 50. Partial justification. In an action for circulating a libel, in which plaintiff, among other charges, is charged with abandoning and refusing to support his family while liv- ing at a certain place, it is error to withdraw from the jury's consideration the testimony of a near neighbor that plaintiff was absent from his home half of the time, and that his family was destitute during considerable periods, and supplied with the necessities of life by the charity of neighbors, where this testimony was based on personal knowledge,, obtained by the witness by visiting the home a number of times and participating in the relief given. Morse v. Modern Woodmen of America (Wis.) 1918D-480. 51. The exclusion of such evidence is neces- sarily prejudicial, especially where the jury returns a verdict ol $14,800 actual damages, and $5,000 punitory damages. Morse v. Mod- ern Woodmen of America (Wis.) 1918D-480. 52. Evidence showing different offense. Evidence that, the parties being partners, plaintiff sold an article in his possession belonging to the firm, and refused to pay de- fendant any part of the profits, is not ad- missible in justification ot a charge of lar- ceny, it being but failure to pay a debt. Ray v. Shemwell (Ky.) 1918C-ll2i:. 53. Evidence that plaintiff computed the interest on defendant's debt to him at much more than it was, and defendant, being ig- norant, and relying thereon, paid it, shows, at most, obtaining property by false pre- . tenses, defendant intending to part not only with possession thereof, but also with his right of property therein, and so is not ad- missible in justification of a charge of lar- ceny. Ray v. Shemwell (Ky.) 1918C-1122. 54. Sufficiency of evidence. In an action for slandering plaintiff, who was in charge of one of defendant's stores, by saying that his stock and cash were short, the evidence is held to be insufficient to show that his stock was short, or that there was a short- age in the cash, at least in such amount as would justify the inference that he had mis- appropriated the money, with such a degree of certainty as to warrant the court in hold- ing as matter of law that the language com- plained of was true, and hence the direction "of a verdict for defendant was properly de- nied. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. e. Province of Court and Jury. 55. Privilege as question of law. When the occasion and attending circumstances are not in dispute, the question of privilege is for the court. Bolton v. Walker (Mich.) 1918E- , 1007. 56. In an action for slander, if the court finds a quasi or qualified privilege, the ques- tions of slander or no slander, malice or no malice, are usually for the jury; but the court must instruct as to the nature and effect of the qualified privilege, and its bear- ing on the jury's consideration of the facts in issue. Bolton v. Walker (Mich.) ]!USJ> 1007. f. Instructions. 57. Defining slander. In an action for slan- dering a person in charge of a store by say- ing that his cash and stock were short, an- instruction that it was sufficient to constitute LIBEL AXD SLANDER. 145 slander if the words were naturally and pre- sumably understood to charge a crime or Breach of trust or to affect plaintiff in his calling, is erroneous, as words not slanderous, but merely derogatory, tend to affect plain- tiff in his trade or calling. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. 58. Interpretation of charges. In an ac- tion for slandering a person in charge of a store by saying that his cash and stock were short, it is error and prejudicial to charge that, if defendant's manager spoke of plain- tiff the defamatory words charged in the declaration under circumstances alleged, and if such words were false, then a recovery might be had, as it Avas for the jury to determine whether the language used was an accusation of crime or the imputation of conduct amounting only to irregularity or negligence, and the instruction in effect told the jury that the words spoken necessarily imputed the commission of a crime and were actionable per se. especially where the court further charged that if the manager slandered plaintiff as charged in the declaration, de- fendant was liable, and refused to charge that if the language tised did not, according to its fair meaning tinder the circumstances, charge plaintiff with larceny, or if the hearers did not understand that it charged him with larceny, but that it simply charged him with some improper, negligent, or careless act, not amounting to larceny, then defendant was not guilty. Grand Union Tea Co. v. Lord (U. S.) 1918C-1138. 59. Such error is not cured by charging that, in determining whether or not the lan- guage used imputed a criminal offense, the words must be construed in their plain and popular sense, and that it was not necessary that the manager should have expressly charged plaintiff with larceny or a breach of trust, but that it was sufficient if the charge consisted of a statement of matters which would naturally and presumably be under- stood by those hearing them as charging a crime or breach of trust, or as affecting plain- tiff in his trade or calling, as this implied that the words were slanderous in their plain and popular sense, and failed to make it clear to the jury that the meaning of the words was for their determination. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. 60. "Substantial" justification. An in- struction that it is not necessary to prove the speaking of the precise words, but that they must be "substantially" the same, means that they must be substantially the same in meaning and is proper; the word "substan- tially" meaning in the matter of substance rather than mere form. Cain v. Osier (Iowa) 1918C-1126. 61. Assumption of malice. In an action for libel, where the publication was relieved from the presumption of malice by the fact that the letter was qualifiedly privileged, having been written by defendant to his prin- cipals in relation to their business, an in- struction defining plaintiff's right of recov- ery, presuming the existence of malice, is prejudicial to defendant. McClintock v. Mc- Clure (Ky.) 1918E-96. Ann. Cas. Dig. 1918C-E. 10. 62. Request containing propositions not covered by given instructions. Plaintiff was in charge of one of defendant's stores, and claimed that while defendant's manager was making an inventory he told a friend of plain- tiff, who inquired for plaintiff, that plaintiff was short in his cash and stock. Defendant requested an instruction, stating plaintiff's claim, and stating that defendant claimed that M., to whom the alleged slanderous statement was made, was a friend of plain- tiff and lived in the same house with him; that defendant's manager was endeavoring to locate plaintiff and get some explanation of his conduct, and that the statement as to the shortage was true, and made in good faith and without malice; that proof of the truth of the statement was a complete de- fense; that the burden was on plaintiff to establish his case, and he must show that defendant used the language charged, and the jury must believe this language, if true, to be slanderous, or such as from its usual import was insulting and calculated to cause a breach of the peace, or there could be no- recovery; and that if, after hearing the evi- dence, the jury believed the stock was short and the cash was also short, the verdict must be for defendant, whether the shortage was (hie to carelessness, ignorance, lack of atten- tion, dishonesty, or other cause. It is held that this instruction, in substance, should have been given, as it presented defendant's theory of the case, and contained nothing ob- jectionable, either as to matters of fact in the aspect of the facts claimed by defendant or as to the applicable rules of law. and it included propositions which defendant was entitled to have submitted when not covered by the instructions given. Grand Union Tea Co. v. Lord (U. S.) 1918C-1118. 63. Mitigation of damages. In an action for libel, where defendant offers an instruc- tion on the question of mitigation of dam- ages, warranted by the proof, the refusal to submit the question to the jury is prejudicial error. McClintock v. McClure' (Ky.) 1918E- 96. 64. In an action for slander, where the mitigating facts tended to negative malice, an instruction that mitigating circumstances may only be considered in relation to the allowance of exemplary damages is not er- roneous. ^Cain v. Osier (Iowa) 1918C-1126. g. Damages. 65. Measure of damages. Plaintiff, if en- titled to recover for libel, should be awarded such sum, as compensatory damages, as will fairly and reasonably compensate him for any injury to his occupation or business, reputation and character, by reason of the libel and the consequent cancellation of plaintiff's bonds as cashier of a bank. etc.,, and for humiliation and mental distress. McClintock v. McClure (Ky.) 1918E-96. 66. In an action for libel in having writ- ten a letter charging plaintiff with a hered- itary predisposition to insanity, etc., the measure of damages is the injury resulting from the publication of the letter, rather 1-16 AKN". CAS. DIGEST (1918C-1918E). than from mental suffering resulting to plaintiff from the cancellation of surety bonds on him. McClintock v. McClure (Ky.) 1918E-96. 67. Punitive damages. In an action for libel based on a letter qualifiedly privileged, the jury, in their discretion, may award puni- tive damages, in addition to compensatory damages, not to exceed the amount claimed in the petition. McClinto.ck v. McClure (Ky.) 1918E-96. 68. Verdict held excessive. Evidence in an action for slander, where plaintiff had been charged with stealing a steer, is held to be insufficient to sustain a verdict for $2,500. Cain v. Osier (Iowa) 19180-1126. 69. In an action for circulating a circular which characterized plaintiff as a mud slinger, and stated that the tale of his life could noi well be told around the neighbors' firesides, that he deserted his wife and children, and afterwards obtained a divorce on perjured testimony, that he did not visit his aged father until the death of his mother, and that his unfilial conduct so enraged his father that he disinherited plaintiff, and made plaintiff sign over his interest in the estate to his deserted wife, a verdict for $14,800 actual damages, reduced by the trial court to $10,000, and $5,000 punitory damages, cannot be permitted to stand, especially where the jury, in an action against de- fendant's agent for circulating the same libel in Wisconsin, the state of plaintiff's resi- dence, returned a verdict for $1, and also in view of St. 1915, 4569, fixing the maximum fine for a criminal libel at $250. Morse v. Modern Woodmen of America (Wis.) 1918D- 480. 70. In view of the surprisingly large ver- dict, especially as to exemplary damages, suggesting very strongly a failure to give proper consideration to the evidence, and in view of the erroneous exclusion of evidence tending to show the truth of a part of the charge, a new trial will be granted, instead of attempting to cut down the damages, and giving options to the parties to take or suffer judgment. Morse v. Modern Woodmen of America (Wis.) 1918D-480. LIBERTY OF CONTRACT. See CONSTITUTIONAL LAW, 14-16. LICENSE. See EASEMENTS. Injury to licensees by electric wires, see ELECTRICITY, 1-4, 6-8, 13, 14. Liability for injury to licensee in municipal public assembly hall, see MUNICIPAL CORPORATIONS, 22-27. Nature of interest in burial lot, see CEME- TERIES, 4. 1. Liability of licensee Destruction of property by fire. The dwelling house upon plaintiff's farm was destroyed by fire while defendant was in possession of it by permis- sion of plaintiff's tenant who was entitled to possession under his lease. Held, that de- fendant was a licensee and his possession not wrongful; held, further, that plaintiff was not entitled to recover for the loss without proof of negligence. Keithley v. Hettinger (Minn.) 1918D-376. (Annotated) 2. Even if the facts warranted the applica- tion of the doctrine, rea ipsa loquitur, the question whether defendant was negligent was still a question of fact for the jury, and not of law for the court. Keithley v. Hettin- ger (Minn.) 1918D-376. (Annotated) 3. Plaintiff sued for the loss resulting from the fire, and, in the complaint, also set forth another independent cause of action. The jury returned a general verdict for plaintiff for the amount allowed upon the other cause of action, but included nothing therein for the loss resulting from the fire. By direction of the court they also returned a special verdict fixing the amount of loss resulting from the fire. The jury not having included such loss in the general verdict, and not having found that it resulted from the neg- ligence of defendant, plaintiff is not entitled to judgment against defendant for the amount thereof. Keithley v. Hettinger (Minn.) 1918D-376. LICENSES. See HAWKERS AND PEDDLERS, 1-4; JUNK DEALERS AND JUNK SHOPS, 1-4; PHY- SICIANS AND SURGEONS, 1-8. Conclusiveness of statement of ownership of taxicab in registry of licenses, see AUTO- Failure to comply with license law in regard to automobiles as barring right to re- cover for injuries, see AUTOMOBILES, 20, 21. Power of committee appointed by council to arrange for display of fireworks with- out license, see THEATERS AND AMUSE- MENTS, 4. Validity of excise tax against foreign cor- porations, see CORPORATIONS, 46. 1. Distinction between police and revenue measure. A license tax is based on the police power of the state to regulate or prohibit a particular business, and not to raise revenue. while an occupation tax is primarily intended to raise revenue. Provo Citv v. Provo Meat, etc. Co. (Utah) 1918D-530. * 2. Power to regulate as including power to license. Where power is conferred to regu- late a particular business or calling, the power to license is included within the power to regulate. Provo City v. Provo Meat, etc. Co. (Utah) 1918D-530. (Anrotated) 3. Classification. The legislature has the right to make separate and different provi- sions for distinct classes and areas in the enactment of its license laws, and the ex- ercise of such power does not conflict with the constitutional rights to the equal pro- tection of the laws, or to due process of law, if the regulations operate equally, and the LIEXS LIFE ESTATES. 147 limitations are not clearly unreasonable. State v. Shapiro (Md.) 1918E-196. (Annotated) 4. Licensing of meat dealers. In Comp. Laws 1907, 206x86 (Laws 1915, c. 100), empowering cities to license, tax, and regu- late the business conducted by merchants, butchers, etc., the word "butcher'' includes the occupation of a retail meat dealer. Provo City v. Provo Meat, etc. Co. (Utah) 1918D- 530. . (Annotated) 5. Under Comp. Laws 1907, 206x43 (Laws 1915, c. 100), empowering cities to provide for the place and manner of sale of meats, the city has power to impose a li- cense tax upon retail meat dealers. Provo City v. Provo Meat, etc. Co. (Utah) 1918D- 530. (Annotated) 6. Under Comp. Laws 1907, 206, as to regulation and taxation of merchants, it is within the power of a city to impose a gen- eral merchant's license tax upon one who is engaged in a general merchandising business, including the sale of meats, and further to impose a license tax upon his business of selling meat. Provo City v. Provo Meat, etc. Co. (Utah) 1918D-530. (Annotated) LIENS. For taxes, see TAXATION, 35, 36. Of building and loan association on stock of members, see BUILDING AND LOAN ASSOCIATIONS, 1-8. Of judgment, see JUDGMENTS, 6-8. Of attorneys, see ATTORNEYS, 14-16. Perfecting lien on mortgage of stock of goods, see CHATTEL MORTGAGES, 4, 5. Personal decree against defendant in suit to enforce lien where lien not established, see JUDGMENTS, 1. Provision in building contract for retention of payments due as operating to give to subcontractor lien, see ASSIGNMENTS, 6. LIFE ESTATES. 1. Creation, 147. 2. Rights of Life Tenant, 147. 3. Liabilities of Life Tenant, 148. See DOWER; REMAINDER AND REVERSIONS; TRUSTS AND TRUSTEES; WILLS. 1. Creation. 1. Effect of power of appointment. A gen- eral power of appointment conferred upon a life tenant does not enlarge his estate. Harris v. Carolina Distributing Co. (N. C.) 1918C-329. 2. Rights of Life Tenant. 2. Cutting or sale of timber. Where, be- fore the commencement of the life estate, the land has been cultivated for the produce of salable timber, the life tenant may con- tinue the cultivation for his own profit. Poole v. Union Trust Co. (Mich.) 1918E-622. 3. By the common law the life tenant was narrowly restricted in the taking of timber to estovers of fuel and repairs, save where the custom of the estate was otherwise; but in this country it is the general rule to allow the life tenant to cut timber to clear the land, provided the part cleared with that un- der cultivation does not, as compared with the remainder of the tract, exceed the pro- portion of cleared to wooded land allowed by good husbandry, and that the value of the inheritance is not thereby materially less- ened; and the right to the proceeds of sales of timber follows the right to cut the tim- ber. Poole v. Union Trust Co. (Mich.) 1918E-622. 4. Under a testamentary trust of property, consisting in part of unproductive timber lands, to pay the income to a life tenant with remainder over on her death without issue surviving, where it appeared that there had been no lumbering business on the lands, that sales by the testatrix in her lifetime were not made in the course of selling timber, but were irregular, unconnected sales of tracts of timber, that the lands had been purchased for investment and resale, and that the in- heritance would be greatly damaged if the trustees should sell the timber off the land and pay the proceeds as income to the life tenant, the proceeds of sales are a part of the principal or remainder. Poole v. Union Trust Co. (Mich.) 1918E-622. 5. Under such trust the taxes and expenses of carrying the unproductive timber lands, the proceeds of sales from which belonged to the principal or remainder and not to the life tenant, are to be borne by the remainder- man and not by the life tenant, in exception to the general rule placing the tax burden on the life estate. Poole v. Union Trust Co. (Mich.) 1918E-622. 6. Working existing mine^r- Where mines were opened or the leases executed before a life estate commenced, the life tenant may, in the absence of restraining words, work the mines even to exhaustion and take the profits. Poole v. Union Trust Co. (Mich.) 1918E-622. 7. Opening of mine. The common-law rule that life estates, whether conventional or arising by operation of law, are impeach- able for waste, unless the instrument creat- ing a conventional life estate expresses a contrary intention, and that a life tenant > cannot open new mines, does not prevail in this state. Poole v. Union Trust Co. (Mich.) 1918E-622. 8. Royalty on mine. Under a will devis- ing a share of the residue of real and per- sonal property in trust to pay over the income to one for life, royalties on mining leases earned previous to, but payable after, the testatrix's death, are payable to the life tenant. Poole v. Union Trust Co. (Mich.) 1918E-622. 9. Under a will of testatrix, owning an un- divided share in mineral lands under royalty leases, devising the residue of a one-half in- terest inherited from her former husband to their son in fee and the other half of the residue to their daughter in trust for life, 148 AXX. CAS. DIGEST (191SC-1918E). with power to the trustees to sell, reinvest, etc., and to pay the income of the principal, whatever it* form, to the daughter, and with remainder over on her death without issue to the son, and in view of her expressed inten- tion that they should enjoy the property ac- cumulated by their father, and that testatrix had herself treated the royalties as part of her regular income, the royalties on the daughter's share are to be considered as income belonging to her, rather than as a part of the corpus of the estate. Poole v. Union Trust Co. (Mich.) 1918E-622. 10. Under such will, where the personal assets left by testatrix exceeded her debts and the expenses of administration, the income payable to the life tenant begins to run immediately after the death of the tes- tatrix, and is not deferred until the trust estate is delivered by the executors to them- selves as trustees. Poole v. Union Trust Co. (Mich.) 1918E-622. 11. Allowance from corpus. Under a will devising life estate during widowhood, with the right to use "in addition to the income, so much of the principal as may be neces- sary" for the support of the widow and children and making the life tenant trustee, the life tenant is not the sole judge of what is necessary for support of herself and chil- dren, so that to warrant allowance from prin- cipal, there must be a finding by the court that it is necessary. Hooker v. Goodwin (Conn.) 1918D-1159. (Annotated) 12. In such case, though the widow resign as trustee, she retains her discretionary pow- er to determine what was necessary, which cannot be disturbed, if such discretion is in fact confined to what is reasonably neces- sary. Hooker v. Goodwin (Conn.) 1918D- 1159. (Annotated) 13. In such case, the trustee is bound to pay to the widow, on her application, an amount necessary for her reasonable and comfortable support, and need not first se- cure order of court to do so. Hooker v. Goodwin (Conn.) 1918D-1159. 14. In a will devising a life estate during widowhood, with the right to use, "in addi- tion to the income, so much of the principal as may be necessary" for the support of the widow and children, "necessary" means all reasonable necessaries suitable to situation and station in life of the widow, with special reference to fact that she was testator's widow. Hooker v. Goodwin (Conn.) 1918D- lir>9. (Annotated) 15. Where such will makes the life tenant trustee, her discretion, or that of the trus- tee appointed on her resignation, to use whatever of the principal is necessary so long as legally exercised, cannot be interfered with. Hooker v. Goodwin (Conn.) 1918D- 1159. (Annotated) 16. Where the life tenant, under a will en- titling her to so much of principal as is necessary for her support, lived prudently and economical 1}', made necessary repairs, im- proved the estate, and more than doubled the principal, allowance of $1,000 from prin- cipal of $130,000, when she was indebted, ill, and in need of care, is held to be rea- sonable. Hooker v. Goodwin (Conn.) 1918D- 1159. 17. If the trustee under will devising life estate during widowhood, with the right to use "in addition to the income, so much of the principal as may be necessary" for the support of the widow and children, and mak- ing the life tenant trustee, is about to vio- late or has violated his trust, the law fur- nishes relief to the remainderman by suit on the bond required by Gen. St. 1902, 311, of all trustees, unless excused by the will. Hooker v. Goodwin (Conn.) 1918D-1159. (Annotated) 18. Reimbursement for repairs or improve- ments. A life tenant is bound to maintain the real estate and buildings in a reason- able condition, and is not entitled to be re- paid from the principal for moneys spent on ordinary repairs of a barn. Hooker v.. Goodwin (Conn.) 1918D-1159. 19. But he is entitled to repayment for ex- pense of installing a bathroom, which would on ordinary repairs of a barn. Hooker v. Goodwin (Conn.) 1918D-1159. 3. Liabilities of Life Tenant. 20. Payment of taxes. The general rule is that the life tenant must pay all ordinary taxes on the property during the continu- ance of his estate, unless there is some pro- vision in the instrument creating the estate relieving him of this liability. Sheffield v. Cooke (R. I.) 1918E-961. 21. Although ordinary taxes and the ex- penses of the care and management of the capital are charges on the life estate, where taxes are assessed against unproductive real estate they are not chargeable to the life tenant. Sheffield v. Cooke (R. I.) 1918E-961. (Annotated) 22. Taxes assessed against the unproduc- tive part of said estate should be charged to the corpus of the estate. Sheffield v. Cooke (R. I.) 1918E-961. (Annotated) 23. An assessment for a public improve- ment not being an ordinary tax. the ques- tion whether it must be borne by the life tenant or remainderman, or apportioned be- tween them, depends upon the circumstances and probable duration of the improvement as compared with the expectancy of life of the life tenant. Sheffield v. Cooke (R. I.) 1918E-961. 24. It is a general rule that municipal assessments for permanent improvements up- on land are apportionable between the life tenant and the. remainderman according to the circumstances of the case, their respec- tive interest in the. property, and the terms of the will or other instrument by which the life estate is separated from the re- mainder, and in the proportion which the value of the life estate bears to the entire estate. Sheffield v. Cooke (R, I.) 1918E- 961. 25. Where an estate in fee simple was subject to an executory limitation and pow- er of sale in trustees, there being no way of valuing the respective interests in the- estate, the payment by the trustees of the LIFE cost of permanent improvements out of funds realized from the sale of unproductive real estate is in itaelf an equitable appor- tionment of the assessment. Sheffield v. Cooke (R. I.) 1918E-961. LIFE INSURANCE. 1. Payment of Premiums, 149. 2. Warranties and Representations, 149. 3. Construction of Policy, 149. 4. Proof of Death, 149. 5. Evidence, 149. See BENEFICIAL ASSOCIATIONS; INSURANCE. Admissibility of evidence of amount of life insurance in action for death of insured by falling down elevator shaft, see DEATH BY WRONGFUL ACT, 14. Admissions and declarations of insured, see ADMISSIONS AND DECLARATIONS. 3-6, 16. Presumption of death of insured, see DEATH. 1. What law governs policy issued by foreign company, see CONFLICT OF LAWS, 2-4. 1. Payment of Premiums. 1. Taking of note as discrimination by in- surer. The acceptance by an insurer of a note for a premium thereby extending the time of payment does not constitute a vio- lation of a statute forbidding discrimina- tion or distinction in favor of individuals between insurants of the same class. French V. Columbia L. etc. Co. (Ore.) 1918D-434. (Annotated) 2. Nonpayment of premium note. Where, after nonpayment of a premium when due and giving by insured of a note for same, which provides that if not paid when due the policy shall lap*e and the note shall be due in an amount to cover only the pro rata premium to the date of cancellation, and the note is not paid when due, the policy lapses. French v. Columbia L. etc. Co. (Ore.) 1918D-484. 3. .Waiver of forfeiture. "A forfeiture in- curred by the holder of a life insurance policy or contract is waived, if the company, with knowledge of the facts, subsequently collects premiums, dues or assessments on account of the contract, and retains them without objection until after the death of the insured." Modern Woodmen of America v. Berry (Xeb.) 1918D-302. (Annotated) 2. Warranties and Representations. 4. Agreement as to amount of surplus. When a life insurance company stipulated a certain amount of surplus payable to insured after twenty years, it is immaterial that the company could not then know what surplus the policy would earn in that time. For- man v. Mutual L. Ins. Co. (Ky.) 1918E-880. 5. Where an insurance company in a writ- ten "illustration" attested by its officers, which it attached to plaintiff's policy, stated a definite amount of surplus payable at the end of twenty years, the policy 'being silent as to this, the company is bound to pay amount stipulated. Foruian v. Mutual L. Ins. Co. (Ky.) 1918E-380. (Annotated) 6. Illustration of results as part of policy. Where a written '"illustration" of the sur- plus plaintiff would receive upon his life policy was officially attested in same hand- ' writing as policy, as an inducement to his taking it, and was pasted to policy when plaintiff received it. it is held that it was intended as and was a part of the contract. Formau v. Mutual L. Ins. Co. (Ky.) 1918E- 880. (Annotated) 3. Construction of Policy. 7. Occupation of insured. A decedent who had not been employed and who had not received compensation as a bartender, though he may for another occasionally have waited upon the customers of a saloon as an ac- commodation to the proprietor, was not a saloon bartender within the meaning of the prohibitive provision of the contract be- tween plaintiff, a mutual benefit insurance society, and the insured. Modern Woodmen of America v. Berry (Neb.) 1918D-302. 8. Attached paper. Where a life policy is delivered by insurer with a paper attached thereto, it will be assumed that it was at- tached by the home office at the time policy was attested by the officers. Forman v. Mu- tual L. Ins. Co. (Ky.) 1918E-880. 9. Interest of beneficiary. A beneficiary whose rights are dependent upon the will of the insured acquires no vested right until the death of the insured, but only a mere expectancy depending upon the will of the insured. Rosman v. Travelers' Ins. Co. (Md.) 1918C-1047. 4. Proof of Death. 10. Waiver. Where a mutual benefit in- surance company refuses to furnish its forms for proof of death to plaintiff, it waives the requirement of its policy that such proofs shall be made on blanks furnished by it. Page v. Modern Woodmen of America (Wis.) 1918D-758. 11. Notice in plea of failure to furnish proofs of loss. In an action against a fra- ternal benefit insurance organization, where the defendant admitted that proofs of death and of the plaintiff's claim were filed in due season, received by the proper officers, acted upon, and payment refused, under circuit court rule 7, subd. "d," providing that in suit upon an insurance policy, if the in- surer shall rely on failure to furnish any proof of loss, as required by the policy, there shall be added to the plea a notice plainly indicating the facts relied on. the defense that plaintiff's proofs of death were not sat- isfactory under the policy was not open to defendant, as it had given no notice thereof. Gilchrist v. Mystic W T orkers, etc. (Mich.) 1918C-756. 5. Evidence. 12. Evidence. In an action on a policy de- fended on the ground of suicide, excepted 150 A.XN. CAS. DIGEST (191SC-1918E). from the risks, questions concerning in- sured^ conversations with his brother are properly excluded, where the brother was not a party, and was not produced as a witness BO he could be impeached. Rosman v. Travel- ers' Ins. Co. (Md.) 191SC-1047. (Annotated) 13. Coroner's verdict not included in proofs of loss. In an action on a life policy, where all of the proofs of death furnished by plain- tiff were verified June 6th and forwarded and filed with defendant benefit association June Oth, he having on July 14th thereafter sent on to defendant at its request a copy of the coroner's verdict, such verdict is not furnished by plaintiff as part of his proofs of death, and is not admissible in evidence as an admission. Gilchrist v. Mystic Workers, etc. (Mich.) 1918C-756. 14. Self-serving declaration. In an action on a policy defended on the ground of suicide excepted from the risks, the insured's state- ment to his wife and beneficiary in a con- versation several days after the occurrence that he had made a mistake, and had taken bichloride tablets thinking that he was tak- ing aspirin, is in the nature of a self-serving declaration and inadmissible. Rosman v. Travelers' Ins. Co. (Md.) 1918C-1047. (Annotated) 15. Evidence to show motive. In an ac- tion on a policy issued to an agent, defended on the ground of suicide, excepted from the risks, evidence that the agent had delivered notes to the insurer purporting to have been given by policyholders for premiums due on policies sold, which had never been executed by the parties whose names were signed thereto, in connection with the agent's con- versation that he had lost money in gamb- ling, and had bought poison with suicidal intent, is admissible to show motive. Ros- man v. Travelers' Ins. Co. (Md.) 1918C- 1047. (Annotated) 16. Sufficiency of evidence. Evidence in an action on a policy is held to make the insured's suicide, a risk excepted from the policy, a question for the jury. Rosman v. Travelers' Ins. Co. (Md.) 1918C-1047. 17. Effect of presumption of death. Where evidence is sufficient to give rise to the legal presumption of death from absence of the insured, it is error to submit to the jury the issue whether he is dead, but plaintiff is entitled to directed verdict in her suit on a policy of mutual benefit insurance on his life. Page v. Modern Woodmen of America (Wis.) 1918D-756. LIGHTING DISTRICTS. 1. Territory which may be included. Un- der Act March 20. 1900 (St. 1900. p. 551), authorizing the formation of lighting dis- tricts in unincorporated towns and villages, a county board of supervisors cannot on peti- tion of the residents of a town or village em- bracing sixty-four acres of land, order the incorporation of a lighting district embracing over seventy square miles of territory and 50,000 acres sparsely settled and devoted to agricultural purposes, or vacant and unoccu- pied, in the country adjacent to such village or town. People v. Van Xuys Lighting Dist. (Cal.) 1918D-255. 2. Curative Act May 29, 1915 (St. 1915, p. 939), declaring that every lighting district established under the provisions of Act March 20, 1909 (St. 1909, p. 551), by resolution of board of supervisors, is a valid district from the date of such order, and that all proceed- ings be ratified, affirmed, and declared legal, is ineffective to validate the inclusion in such lighting district of large areas of farm- ing lands. People v. Van Xuys Lighting Dist. (Cal.) 1918D-255. 3. Under Act March 20, 1909 (St. 1909, p. 551), authorizing the formation of lighting districts by unincorporated towns and vill- ages, the formation of such districts is au- thorized only within the limits of unincor- porated towns or villages, and no authority is given for the formation of a district, including large tracts of farm land not inhabited as a village; the word "town" meaning any large collection of houses and buildings, public and private, constituting a distinct place with a name, and the word "village" meaning any small aggregation of houses in the county, being, in general, less in number than in a town or city and more than in a hamlet. People v. Van Nuys Light- ing Dist. (Cal.) 1918D-255. (Annotated) LIGHTNING. Judicial notice of tendency of metal to at- tract lightning, see EVIDENCE, 2. Lightning stroke as industrial accident, see MASTER AND SERVANT, 12. Lightning stroke as injury arising out of and in course of employment, see MAS- TER AND SERVANT, 16. LIMITATION OF ACTIONS. Against action for accounting of partnership affairs, see PARTNERSHIP, 7-8. In action for death by wrongful act, see DEATH BY WRONGFUL ACT, 1-3. Limitation of time for presentation of claim against state, see STATES, 2. Suit by executor to set aside assignment of mortgage between attorney and client, see ATTORNEYS, 4, 5. 1. Construction of statutes. The statute of limitations, like any other statute, is to be construed according to the manifest in- tention of the legislature, and, in ascertain- ing such intention, the language used should be constmed, if possible, according to the usual meaning of the words used. Wren v. Dixnn iXev.) 1918D-1064. 2. Trustee and cestui que trust. When- ever the right of action in a trustee with the legal title is barred by limitations, the right of the cestui que trust is also barred, but, if the legal title be in the cestui que tnM. the statute of limitations which might run against the trustee will not constitute a LIMITATION OF LIABILITY LIS PE^TDEXS. 151 bar against the cestui if he be under disabil- ity. Wren v. Dixon (Kev.) 191SD-1064. 3. Executor as trustee. Under Rev. Laws, 5911, providing that every person to whom letters testamentary or of administration shall have issued shall execute a bond with a penalty not less than the value of the per- sonal property, including rents and profits, and may be required to give an additional bond whenever the sale of realty is ordered, the relationship of trustee and cestui que trust between the executor or administra- tors and the heirs is not created in so far as the game might apply to the realty of an estate, so that the rule that a statute of limitations running against a trustee hold- ing the legal title to realty runs also against the cestui does not apply. Wren v. Dixon (Xev.) .1918D-1064. 4. Suit for contribution. A surety in whose favor the statute of limitations has not run, who has done nothing to suspend its operation, and who has been compelled to pay the debt of his principal may exact contribution from a cosurety in another state, though under the laws thereof the creditor's claim against the latter was barred when the principal's debt was paid. Frew v. Scoular (Xeb.) 1918E-511. (Annotated) 5. Action to recover mining claim. Under Act Cong. July 26, 1866, c. 262, 14 Stat. 252, providing for the patenting of mining claims, Rev. Laws, 4951, providing that no action to recover mining claims shall be maintained unless plaintiff or those under whom he claims was seized or possessed of such claim within two years before the commencement of such action, and section 4952, providing that no cause of action upon title to real property shall be effectual unless the person prosecuting the action was seized or pos- sessed of the premises in question within five years before the commission of the act in respect in which the action is pr*osecuted, and section 4953, referring to mining claims as such, enacted subsequent to the federal statute, applied to patented as well as un- patented mining claims, and an action to re- cover a patented claim must be commenced within two years from the time when plain- tiff was seized or possessed of such claim. Wren v. Dixon (Xev.) 101SD-1064. 6. Interruption of statute. Rev. Laws, 4946, provides that civil actions can only be commenced within the periods prescribed in the act, after the cause of action has ac- crued, except where different limitation is prescribed by statute. Section 4951 provides that no action to recover a mining claim shall l>e maintained unless plaintiff was seized or possessed thereof within two years before the commencement of such action, defining occupation and adverse possession, and ex- tending the provisions of the act applicable to other real estate to mining claims, pro- vided that in such application "two years" shall be intended when "five years" is used, and section 4952 provides that no cause of action to recover real property shall be ef- fectual, unless the person prosecuting the action was seized or possessed of the premises within "five years" before action was com- menced, and section 4966 provides that, if one entitled to commence an action to re- cover real property shall be a minor, the time of disability is no part of the time limited for the commencement of such ac- tions, which may be commenced within two years after the removal of disability. It is held that, by interpolation, section 4951 was to be read as if providing that, if a person to whom an action to recover a mining claim accrues is a minor, the period of disability shall not be part of the time limited for the commencement of such action, which may be commenced within two years after the dis- ability ceases. Wren v. Dixon (Nev.) 1918D- 1064. 7. Minor heirs of one who had duly pat- ented a mining claim were entitled to 'notice of the hostile character of defendant's posses- sion, which notice could not be given them until they were capable in law of receiving it; so that, under the statute (Rev. Laws, 4951 et seq.), they might commence an action to recover it within two years after majority, when they were chargeable with notice. Wren v. Dixon (Nev.) 1918D-1064. LIMITATION OF LIABILITY. Of carriers of goods, see CARRIERS OF GOODS, 6-8. Of carriers of live stock, see CARRIERS OP LIVE STOCK, 1-3. Of telegraph company, see TELEGRAPHS AND TELEPHONES, 1-3. LINEMAN. Injury to, see ELECTRICITY, 5, 10, 15, 16. LIQUORS. See INTOXICATING LIQUORS. LIQUOR SALOON. See WORDS AND PHRASES, 7. As place of public accommodation In statute forbidding denial of rights on account of race or creed, see CIVIL RIGHTS, 1, 2. LIS PENDENS. 1. Mortgagee taking possession. A mort- gagee of personal property who takes pos- session thereof under an agreement with the mortgagor, pending litigation concern- ing a lien thereon, takes the property sub- ject to the rights of the lien claimant aa settled by the final decree or judgment. Hubbard v. Johnson (Wash.) 19180-84. (Annotated) 2. Purchaser from party to action. Where the purchaser of land from a party to a pending suit involving the title thereto ex- ecutes a mortgage or trust deed thereon, without warranty of title, and the title of AXX. CAS. DIGEST (1918C-1918E). his grantor is thereafter decreed in such suit to be void, such purchaser's title and the lien created by him fail also, whether he was a party to the suit or not. Linn v. Collins (W. Va.) 1918C-SH. (Annotated) 3. If the same land is later sold and con- firmed by decree in such pending suit to a bona fide purchaser, who receives a deed from a commissioner of count, he may then sell to, and invest good title in, the person who previously purchased pending the suit, and if his purchase is made in good faith, he takes the land discharged of the lien which he theretofore attempted to create. Linn v. Collins (W. Va.) 1918C-SG. 4. Such transaction does not, in the ab- sence of other evidence, import fraud upon the creditors of such pendente lite purchaser. Linn v. Collins (W. Va.) 1918C-86. 5. Purchaser from person not party. Where a lumber company, when it pur- chased lands, had no notice by a lis pendens that affected its title, because it did not claim under any title derived from the party in whose hands the land was attached, the record title under which the lumber company claimed being in another, while inquiry as to the title of the party from whom the lumber company bought would have disclosed to it that he had a perfect record title to the lands by virtue of his quitclaim deed from the party holding record title, though it held under a quitclaim deed, the lumber company is entitled to protection as an innocent pur- chaser. Case v. Caddo River Lumber Co. (Ark.) 1918C-80. (Annotated) 6. Failure to record deed before suit com- menced. A grantee in a deed executed by a grantee of a grantor who had previously executed a mortgage duly recorded occupies the position of a purchaser pendente lite, and he and his subsequent grantees are chargeable with notice of the foreclosure proceeding where the deed, though executed prior to the foreclosure suit, was not placed of record until more than two months there- after, and not within the time allowed by the registry statute. Wolfenberger v. Hub- bard (Ind.) 1918C-81. (Annotated) 7. Where a party procures a conveyance of real estate to be made to him by means of false and fraudulent representation, of which act the original vendor has no notice, and thereafter conveys such real estate to a third party, who withholds such deed from regis- tration and recordation until after suit is filed to cancel such conveyance to his vendor, and notice of lis pendens is filed, such pur- chaser, under section 4261, Code 1915. is a purchaser pendente lite. Wilson v. Robinson MANDAMUS. Attacking irregularities in valuation of prop- erty in mandamus to enforce order of taxing officials, see TAXATION. 37. Compelling admission of pupil without fee, see SCHOOLS, 1. Compelling omission from ballots of name of candidate, see ELECTIONS, 13. To compel assessment or collection of taxes, see TAXATION. 15. To compel granting of letters of administra- tion, see EXECUTOBS AND ADMINISTBA- TOBS, 1, 4. 1. Enforcement of invalid assessment. Since mandamus is a discretionary writ, the court will not order its issue in a case wherein it appears that the order of the state board of equalization is invalid as tak- ing property without due process of law or for anv other reason. People v. Pitcher (Colo.)"l918D-1185 MARKETABLE TITLE. See VENDOB AND PURCHASES. MARRIAGE. 1. Nature and Validity: a. What Law Governs, 154. b. Common-law Marriage, 154. 2. Evidence, 154. 3. Annulment, 154. See ALIMONY AND SUIT MONEY; DIVORCE. Construction of marriage settlements, see HUSBAND AND WIFE, 7. Contract for marriage of third persons, see CONTRACTS, 2-6. Laws governing marriage and divorce of members of Indian tribes of Oklahoma, see INDIANS, 2. Offer of marriage as defense to prosecution for seduction, see SEDUCTION, 1. 154 A XX. CAS. DIGEST (1818O1918E). Record of marriage license us evidence, see EVIDENCE, 21. Validity of marriage within prescribed time of party to divorce suit, see DIVOBCE, 10. 1. Nature and Validity. a. What Law Governs. 1. Marriage within proscribed time after divorce. A marriage in the state of New Mexico by a person dvorced in Colorado within a month of the divorce if valid under the laws of Xew Mexico is lawful in the state of Colorado, though it would have been unlawful if solemnized in the latter state. Crouse v. Wheeler (Colo.) 1918E-1074. (Annotated) 2. A valid marriage in New Mexico by a person divorced in Colorado where such mar- riage would be unlawful, does not render such person guilty of contempt of the court granting the divorce in Colorado. Crouse v. Wheeler (Colo.) 1918E-1074. (Annotated) b. Common-law Marriage. 3. Validity. A common-law marriage is valid in this state. Palmer v. Cully (Okla.) 1918E-375. 4. Prior to the adoption of the Code of 1892, a common-law marriage was recognized AS lawful and binding as one contracted pur- suant to license and the usual ceremony. Howard v. Kelly (Miss.) 1918E-1230. 5. Public asumption of relation. Where a man and woman living in adultery changed the unlawful character of their cohabitation by public announcement that they are man and wife and assumed all the burdens inci- dent to matrimony, especially of maintain- ing a home and of rearing their children, there was a valid common-law marriage be- tween them. Howard v. Kelly (Misa.) 1918E-1230. 2. Evidence. 8. Presumption of validity of subsequent marriage. Where a husband contracts a ceremonial marriage before his first wife has been absent seven years, the presumption in favor of the validity of the second marriage overcomes the presumption that the first wife was still alive when it Avas contracted. How- ard v. Kelly (Miss.) 1918E-1230. (Annotated) 7. Where a duly solemnized second mar- riage is shown, the presumption arises that the first wife was either divorced or dead; the burden of proof being upon the person claiming rights inconsistent with such pre- sumption. Howard v. Kelly (Miss.) 1918E- 1230. (Annotated.) 8. Presumption in favor of common-law marriage. Every presumption will be in- dulged in favor of the legality of a common- law marriage in the same way and to the same extent as the law indulges them in favor of a ceremonial marriage. Howard v. Kelly (Miss.) 1918E-1230. 3. Annulment. 9. Distinction between divorce and annul- ment. "Divorce" means the dissolution of the bonds of matrimony, based upon the theory of a valid marriage, for some cause arising after the marriage ; an annulment" proceeding is maintained on the theory that for some cause existing at the time of mar- riage no valid marriage ever existed, even though the marriage be only voidable at the instance of the injured party. Millar v. Millar (Cal.) 1918E-184. 10. Applicability of divorce statute. In view of Civ. Code, 82-132. relative to nullity and dissolution of marriage and causes for denying divorce, the word "di- vorce," as used in Civ. Code, 128, 131, 132, providing that plaintiff in actions for divorce must be a resident, etc., does not include pro- ceedings for annulment of marriage or any action except the original action for divorce for some cause arising after marriage. Mil- lar v. Millar (Cal.) 1918F-184. 11. Secret intention to refuse marital in- tercourse. The secret determination of one of the parties to a marriage, when entering into the relation, absolutely to refuse to the other sexual intercourse, a course consistent- ly persisted in at all times after the mar- riage, the other party having acted in good faith, is a "fraud" within Civ. Code, 82, subd. 4, specifying as a ground for annul- ment of marriage that the consent of either party was obtained by fraud, etc., since a promise made without any intent to perform constitutes actual fraud. Millar v. Millar (Cal.) 1918E-184. (Annotated) 12. In a wife'% suit for maintenance, the husband's cross-complaint for annulment on the ground, that the wife had entered the marriage relation with the intention of re- fusing him sexual intercourse alleged that, owing to the wife's persistent refusal, the parties had never had marital intercourse after the marriage, and that within a rea- sonable time the husband notified the wife that their relations were terminated, etc.. while, according to the allegations of the wife's complaint, the husband forthwith wil- fully failed to provide the wife with the common necessaries of life or any money. It is held that the cross-complaint sufficient- ly negatived the exception of Civil Code. 82, subd. 4, providing that a marriage may be annulled, when the consent of either party was obtained by fraud, "unless such party afterwards with full knowledge of the facts constituting the fraud freely cohabited with the other as husband and wife." Millar v. Millar (Cal.) 191SE-184. 13. Condonation as defense. ''Condona- tion," the conditional forgiveness of a matri- monial offense constituting a cause for di- vorce, is a defense only in the ordinary divorce action for some cause arising after marriage, and the statutory provisions as to such defense have no part in a proceeding for annulment of marriage for fraud consist- ing in a wife's determination to deny sexual intercourse. Millar v. Millar (Cal.) 1918E- 184. MASOXS MASTER AXD SERVANT. 14. Waiver of ground for annulment.-!- Under Civ. Code, 82, subd. 4, making ifc ground for annulment of marriage if the con- sent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife, if a wife entered the mar- riage relation intending to refuse her hus- band sexual intercourse, thus committing a fraud upon him, and he, with full knowledge of the facts, assumed the rights of marriage, cohabiting with his wife as such, thus form- ing the relation notwithstanding the fraud, he waived it, and can maintain no action for annulment on account of it. Miller v. Mil- lar (Cal.) 1918E-184. 15. Effect f decree of annulment. The decree of nullity in a proceeding to annul a marriage determines that no valid marria may be prescribed thereunder. It is held that this last-mentioned act is a "stat- nte enacted for the safety of employees," within the employer's liability act. Great Northern R. Co. v. Donaldson (U. S.) 1918C- 581. (Annotated) 5. Boiler Inspection Act, 2, requiring lo- comotive boilers to be safe for use without unnecessary peril to life or limb, and re- quiring tnem to be inspected from time to time, does not prevent liability for injury or death caused by some particular feature of construction which is in fact unsafe, though it has not been disapproved by the federal boiler inspector. Great Northern R. Co. v. Donaldson (U. S.) 1918C- 581. (Annotated) b. Workmen's Compensation Acts. (1) Operation without State. 6. Workmen's Compensation Act (Consol. Laws, c. 67) does not apply to an employer who moved his plant from the state before the passage of such act, retaining only a sales agency in the state, although the em- ployee who was injured in another state contracted with such employer while the plant was in New York. Smith v. Heine Safety Boiler Co. (N. Y.) 1918D-316. (Annotated) (2) Exclusiveness of Remedy. 7. Violation by employer of "lawful re- quirements." The Industrial Commission Act (103 0. L. 95) provides for the creation of an administrative board with power to supervise all places of employment, to prescribe general rules and requirements con- cerning all employments and places of em- ployment and particular orders and require- ments for particular employers and places of employment, to secure the lives, health, safety and welfare of every employee in such employments, and every frequenter of such places of employment. The purpose and intent of sections 15 and 16 of the act was to bring all employers within the scope of the jurisdiction and authority of the com- mission and to impose on them the obliga- tion to comply with the orders and require- ments of the commission when duly made. The provisions of sections 15 and 16 are not the lawful requirements referred to by, and within the meaning of, section 35, arti- cle II, of the constitution. American Wood- enware Mfg. Co. v. Schorling (Ohio) 1918D- 318. (Annotated) 8. The term "lawful requirement," as used in section 35, article IT, of the constitution, and section 29 of the Workmen's Compen- sation Act (103 0. L. 84), does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employees, and all other members of the community, for the protection of life, health, and safety, American Woodenware Mfg. Co. v. Schorling (Ohio.) 1918D-318. *9. T?y the provisions of section 25 of the Industrial Commission Act to employers gen- erally, or to a particular employer, with reference to safe employment or place of employment, is a lawful requirement (until altered in the manner provided for in the act), for failure to comply with which, or with any statute or municipal ordinance pre- scribing means or methods required to be used to protect the lives, health, safety and welfare of employees, the employer under the proviso contained in section 35 article II, of the constitution, and section 20 of the Workmen's Compensation Act, is liable to an employee injured by reason of such fail- ure. American Woodenware Mfg. Co. vj Schorling (Ohio) 1918D-318. (Annotated) (3) "Accident" and "Personal Injury." 10. "Loss" of foot. Under Workmen's Compensation Law (McKinney's Consol. Laws, Book 64. 15, subd. 3). providing for compensation in case of disability, partial in character, but permanent in quality, and that the permanent loss of the use of a foot shall be considered as the equivalent to the loss of such foot, the fact that claim- ant has sustained a compound fracture of the leg between the ankle and the knee does not create a presumption that he has lost the use of his foot; section 21 of the act re- lating to presumptions not applying, and the burden of establishing the loss being on claimant. Modra v. Little (N. Y.) 1918D- 177. (Annotated) 11. Permanent disability. In a proceeding for injury, under the workmen's compensa- tion act, for the permanent loss of the use of a foot, an award of compensation as for permanent disability is held to be er- roneous under the evidence, where the leg was fractured merely. Modra v. Little (N. Y.) 1918D-177. 12. Lightning stroke. Where an employee of a county while engaged in work upon the public roads is killed by lightning, death re- sults from an "industrial accident," within Workmen's Compensation Act (Laws 1015, c. 96) 16. providing that the industrial accident fund is liable for the payment of compensation to an employee, or. in case of his death, to his dependents for injury arising out of and in the course of his em- ployment. Wiggins v. Industrial Ace. Board (Mont.) 1918E-1164. (4) Injuries Arising "Out of and in Course of Employment. 13. Under Workmen's Compensation Act (Laws 1913, p. 335), making certain employ- ers liable for all accidental injuries sus- tained "arising out of and in the course of employment," it is not sufficient that the accident occur in the course of the employ- ment, but the causative danger must also arise out of it; for the words "arising out of" refer to the origin or cause of the acci- dent, and are descriptive of its character, while the words "in the course of refer to the time, place, and circumstances under which the accident takes place, and by the MASTER AXD SERVANT. 157 use of these words it was not the intention of the legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's em- ployment or incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employee is exposed in a special degree by reason of such employment; risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment being excluded, Mueller Constr. Co. v. In- dustrial Board (111.) 1918E-810. (Annotated) 14. Time of accident. Where a construc- tion company's foreman, reporting at the building being remodeled a half hour before the hour when the 'time" of himself and men began to run, proceeds thence to another building to telephone for lumber, when he is struck by automobile,' the accident hap- pens in the course of employment; order- ing materials being an incidental duty, in discharging which the use of telephone in nearby building was as much in the course of his emp'oyment as if one had been in- stalled in the building under construction and he was using it, and a reasonable time before as well as after the actual time for which the employee is paid being allowable as included within the period of employment. Mueller Constr. Co. v. Industrial Board (111.) 1918E-810. (Anotated) 15. In such case, his employer having ac- quiesced in the foreman's practice of going to public telephones to telephone for ma- terials by repaying him amounts expended for telephone tolls, the foreman's injury arises out of his employment, since he was injured in perfonning a regular duty ex- pected of him. Mueller Constr. Co. v. In- dustrial Board (111.) 1918E-710. (Annotated) 16. Lighting Stroke. An employee of a county required to work on a steel grader while a thunderstorm is threatening is not exposed to more than the normal risk which the people of the community generally are subject to, and there can be no recovery for his death from lightning under Workmen's Compensation Act (Laws 1915, c. 96) 16, imposing liability for death from "an injury arising out of and in the course of his em- ployment;" the words "out of" pointing to the origin of the accident, and being descrip- tive of the relation which the injury bears to the employment. Wiggins v. Industrial Ace. Board (Mont.) 1918E-1164. (Annotated) 17. Fall from dock while returning to ship. A maritime employee falling from a dock while returning to his ship after an absence on shore for purposes of his own does not sustain an accident arising out of and in the course of his employment within the work- men's compensation act, though both the dock and the ship were under control of the admiralty and the employee gained en- trance to the dock by virtue of an admiralty pass. Davidson v. M'Robb (Eng.) 1918D- 670. (Annotated) (5) Notice to Employer. 18. Failure of an injured employee to give the notice of injury required by the Workmen's Compensation Law is not ren- dered harmless to the employer by the fact that there was no witness to the accident, nor by the fact that the injury was given proper medical treatment. Hynes v. Pullman Co. (X. Y.) 1918C-1040. (6) Compensation. 19. Person working during spare time. Where the injured employee began work during the summer, and returned to school in the fall, and each day at the end of the school session worked as a spare weaver, or spare-time worker, for approximately three hours, also working on Saturdays, there is no basis for the industrial accident board to ascertain her "average weekly wages," as denned in Workmen's Compensation Act (St. 1911, c. 751) pt. 5, 2. Rice's Case (Mass.) 1918E-1052. (Annotated) 20. On such facts, the finding of the in- dustrial accident board that all time, ex- cept such working hours, was "lost time," within the meaning of the compensation act, cannot be sustained. Rice's Case (Mass.) 1918E-1052. (Annotated) 21. In the absence of evidence to show what average weekly amount during the twelve months previous to the employee's injury was being earned by a person in the same grade, employed at the same work, by the same employer, and of the average week- ly wages earned by a person in the same grade, employed in the same class of em- ployment, and in the same district, the aver- age weekly wages of the employee cannot be. ascertained by the industrial board, under Workmen's Compensation Act, pt. 5, 2, providing that, where it is impracticable to compute the average weekly wages as above denned, regard may be had to the average weekly amount which during the twelve months previous to the injury was being earned by a person in the same grade em- ployed at the same work by the same em- ployer, etc. Rice's Case (Mass.) 1918E-1052. (Annotated) 22. The amount of compensation to be awarded an injured employee under Work- men's Compensation Act, pt. 5. 2, is to be determined, not by what the employee is capable of earning, but by what was act- ually eamed. Rice's Case (Mass.) 1918E- 1052. (Annotated) 23. Compensation to be awarded an in- jured employee, under the workmen's com- pensation act, in such a case cannot be de- termined upon the average weekly wages of a weaver, in the absence of evidence to show the employee was a weaver; it appearing, on the contrary, that she was a spare weaver, or spare-time worker, and there being noth- ing to indicate the average weekly wages of 158 ANN. CAS. DIGEST (1918C-1918E). such a person. Rice's Case (Mass.) 1918E- 1052. (Annotated) 24. If there is no such kind of employment recognized in textile manufacturing as that of spare weaver, or spare-time worker (which the injured employee was), the "average weekly wages" actually earned by one work- ing as a spare weaver during the time she was actually employed is the basis of com- pensation, under workmen's compensation act; "average weekly wages," in such case, not being confined to the definition in part 5, 2. Rice's Case (Mass.) 191SE-1052. (Annotated) 25. Where the definition of average week- ly wages in Workmen's Compensation Act, pt. 5, 2, is not applicable to the case of a particular employee, the words "average weekly wages," in part 2, 9, 10, as to payment, should be interpreted in their com- mon and ordinary sense, and be computed fee dividing the total amount earned by the number of weeks of employment. Rice's Case (Mass.) 1918E-1052. (Annotated) (7) Review. 26. Finding ef industrial board. Where there is evidence to support the finding of the industrial board, even though that evi- dence is controverted, the courts cannot pass upon its weight or sufficiency. Mueller Constr. Co. v. Industrial Board (111.) 1918E- 810. c. Employer's Relief Department. 27. Provision for forfeiture in case of suit. Where a relief society's membership is confined to a certain railway's employees, and the railway contributes semiannually a sum equal to the total assessments paid by members, a by-law tkat half the sum insured for should be forfeited if the employee or his representative sued the railway for dam- ages is not void under Federal Employers' Liability Act, April 22, 1908, c. 149, 5, 35 Stat. 66 (8 Fed. St. Ann. [2d ed.] 1264), providing "any contract, rule, regulation, or device whatsoever, the purpose and intent of which shall be to enable any common car- rier to exempt itself from any liability creat- ed by this act, shall to that extent be void," since this provision does not attempt to reg- ulate contracts between an employee and an insurance company, and even if the con- tract be considered one with the railway company through the society as its agent, the contract is no more than an agreement by the railway to pay an additional amount contributed by itself if suit is not brought. Wilson v. Grand Trunk Ry. Ins. etc. Soc. (N. H.) 1918E-1191. (Annotated) 28. Resort to outside physician. Where a lumber company posts notice that it charges employees with a hospital fee of 75 cents a month after the first three days' employment, etc., and an employee pays the specified fees, there is a complete contract, requiring the company to furnish the serv- ices of its physician to the employee under the circumstances specified in the notices; it is the duty of the employee to apply for such services before employing another physiciaa, and his duty to use reasonable diligence to find the company's physician ad request his services before employing another, and if he fails to use such diligence he cannot hold the company liable for sums paid another physician. Crites v. Willamette Lumber Co. (Ore.) 1918D-1050. (Annotated.) 29. Whether or not the employee used snch diligence is a question of fact for the jury to determine. Crites v. Willamette Valley Lumber Co. (Ore.) 1918D-1050. (Annotated) 30. If an employee requiring the services of the employer's physician, the employer having contracted to furnish medical serv- ices, is ignorant as to who the physician is, it is his duty to inquire and ascertain from the employer, or, when the name and place of business or residence of the physician is known, the employee should apply where it is reasonable to suppose the doctor may be found. Crites v. Willamette Valley Lumber Co. (Ore.) 1918D-1050. (Annotated) 31. Diligence in securing company physi- cia. Where an employer, which contracts for consideration to furnish medical atten- tion to its servants, holds out to them a particular person as its physician, and an employee uses reasonable diligence to se- cure his services in an illness, finds him absent, and, after waiting a reasonable time for his return, employs and pays another physician, the employer must reimburse him for the payment thus made to the other phy- sician. Crites v. Willamette Valley Lumber Co. (Ore.) 1918I>-1050. (Annotated) 32. Where the wife of the employee of a lumber company which has contracted to furnish him medical services, when he is attacked by appendicitis, goes at 8 in the morning to the residence of the company's physician and learns he is out of town, at 1:30 in the afternoon goes to a neighbor's house and telephones the doctor's residence, but is again informed that he is absent, and, being a trained nurse and becoming alarmed at her husband's condition, then calls in an- other doctor, who operates, there is no lack of diligence on the part of the employee r his wife, in attempting to secure the attend- ance of the employer's physician, such as will preclude recovry from the employer of the fees paid the other doctor. Crites v. Wil- lamette Valley Lumber Co. (Ore.) 1918-1050. (Annotated) 33. Evidence as to diligence. In a serv- ant's action against his employer, who had contracted to furnish medical attendance in case of illness, for fees paid a physician other than the employer's, the latter having been absent when the servant was attacked by appendicitis, testimony of another employee that on several occasions when injured he had gone to the office of the employer's phy- sician and found him absent, and was not directed to apply to any other physician, is properly admitted to show that the custom of the doctor, to which he testified, of V.eep- ing an attendant at his office, who, in his absence, made arrangements for the proper treatment of his patients, had not always MEASURES MECHANICS' LIENS. 159 beea observed. Crites v. Willamette Valley Lumber Co. (Ore.) 1918D-1050. 34. In such action, the admission of testi- mony of the servant's "wife as to what oc- curred between her and the doctor's wife when the servant's wife inquired for the doc- tor at the family residence, if erroneous, is harmless. Grites v. Willamette Valley Lum- ber Co. (Ore.) 1918D-1050. d. Actions for Injuries. 35. Instructions. In an action under the federal employers' liability act for the death of an employee resulting from a boiler ex- plosion, the court charged that the law made it unlawful for a carrier, such as defendant, to use any locomotive engine propelled by steam power, unless in proper condition and safe to operate in the service to which it was put, without unnecessary peril, and pro- vided that no employee should be deemed to have assumed the risk, or to have been guilty of contributory negligence, by reason of any engine operated in violation of such law; that if the jury believed that the boiler in question was not in proper condition and safe to operate in the active service of defendant in moving traffic, without unnecessary peril, by reason of defendant's negligence in any of the respects alleged, then the employee did not assume the risk, and was not guilty of contributory negligence; but that if such boiler and appurtenances were in proper con- dition and safe for such use, but due to de- fendant's negligence were defective in some f the respects alleged, and the employee had actual knowledge of such defects, or they were so plainly observable that in the rea- sonable exercise of his faculties he should have known of them, and might be presumed to have known thereof and the danger sur- rounding him, then he assumed the risks and could not recover. It is held that this instruc- tion was more favorable to defendant than the law required. Great Northern R. Co. v. Donaldson (U. S.) 1918C-581. 36. Questions for jury. In an action against a railroad for its fireman's death, whether the road was negligent in maintain- ing its track at the curve where a derailment took place beacuse of defective ties is held to be for the jury under the evidence. Davis v. Cincinnati, 'etc. R. Co. (Ky.) 1918E-414. 37. In an action against a railroad for its fireman's death when the engine of a train running seventy-five to eighty miles an hour was derailed, questidns whether the road was running its train at a negligent rate of speed, indicating great recklessness and an utter dis- regard for the safety of others, especially those on the train, and whether such speed contributed to produce the accident, is held to be for the jury. Davis v. Cincinnati, etc. R. Co. (Ky.) 1918E-414. 38. Sufficiency of evidence. In an action under the federal employers' liability act, the evidence is held insufficient to show an ap- proval by government inspectors of the use of the large type of button head on the crown bolts of the boiler of oil-burning en- gines. Great Northern R. Co. v. Donaldson (U. S.) 1918C-581. (Annotated.) MEASURES. See WEIGHTS AND MEASURES. MEAT DEALERS. Licensing; see LICENSBS, 4-6. MECHANICS' LIENS. 1. Contract under Which Lien Acquired, 159. 2. Lienable Claims, 160. 3. Notice or Statement of Claim, 160. 4. Priority, 160. Right of action of farm laborer for lien, destroyed by confusion of goods, see CONFUSION OP GOODS, 1. 1. Contract under Which Lien Acquired. 1. Construction of contract for retention of funds. Under a contract with a municipality for the removal of ashes and refuse, where there is a right to file a lien for labor and materials furnished, a provision in the con- tract for the retention by the city of suffi- cient moneys with which to pay claims on which liens had been filed is for the benefit of the contractor only, and not for the pro- tection of laborers or materialmen. River- side Contracting Co. v. New York (N. Y.) 1918C-1075. 2. Failure of contract to fix time of pay- ment. A building contract, merely providing when seventy-five per cent of the contract price is payable, does not conform substan- tially to Code Civ. Proc. 1184, providing in effect that such contracts must, by their terms, declare that at least twenty-five per cent of the contract price shall be payable at least thirty-five days after final comple- tion: and so others than the contractor fur- nishing labor and material are entitled to lien for the full amount thereof. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 3. Claim against fund Necessity that work he public improvement. Under Lien Law. 5 (ilcKinney's Consol. Laws. Book 32. p. 37), providing that a plaintiff's only claim to a fund must be that the principal contract towards the completion of which materials and labor were furnished was one for a public improvement, although material furnished and services performed in con- structing docks would be a public improve- ment if supplied under a contract with the city for that purpose, it is not Avhen sup- plied and performed under a contract for the removal of ashes and refuse. Riverside Con- tracting Co. v. New York (N. Y.) 1918C- 1075. 4. Under the Lien Law (Consol. Laws, C; 33) 2 (McKinney's Consol. Laws, Book 32, p. 10), defining a "public improvement" as an improvement upon any real property belong- 160 ANX. CAS. DIGEST (1D18C-1918E). ing to a municipal corporation, and an "im- provement" as "the erection, alteration or re- pair of any structure connected with or beneath the surface, any real property and any work done upon such property, or mate- rials furnished for its permanent improve- ment," a contract by a construction company with the city of New York for the removal of ashes and refuse, although the ashes were dumped and used to fill in and remake land, is not a contract for a public improvement, since the character of a contract, under the Lien Law, must be established by its sub- stanital purpose, and not by some merely incidental result. Riverside Contracting Co. v. Xew York (N. Y.) 19180-1075. 2. Lienable Claims. 5. Improvements by vendee under contract of sale. Where improvements on land are made by a vendee in possession under a con- tract of sale, the vendor on retaking the land after a default does not take it subject to a mechanic's lien for the improvements though by the contract of sale he consented to the improvements and agreed to advance money therefor. John A. Marshall Brick Co. v. York Farmers Colonization Co. (Can.) 1918C-1013. (Annotated) 6. Lending money to pay wages. One merely paying the wages of a building con- tractor's employees, under agreement to do so and to be repaid the same with a commis- sion, cannot have a lien for their labor; he in effect loaning money to the contractor to enable him to carry on the work, for which there can be no lien. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. (Annotated) 7. Person furnishing labor and paying wages. A contract of S. with F., building contractor, whereby S. agrees to furnish all common and carpenter labor for completion of building, and to pay all wages that may become due the carpenters and common lab- orers, and F. agrees for such labor furnished to pay to S. each month, with commission, the amount of wages S. has paid to such laborers during the preceding month, is one to bestow labor on the building, entitling S. to a lien for labor furnished thereunder; and not a contract for loan of money, though it is provided F. shall make out and deliver to S. weekly pay rolls, and that it is understood that all men employed shall be satisfactory to F., and that he shall have the right to discharge any unsatisfactory to him, and to replace them with others selected by him. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. (Annotated) 8. The value of the labor furnished by a subcontractor under contract to furnish the carpenter and common labor to complete the building, and see that such laborers worked when wanted, and attend to paying their wages, for which the subcontractor is enti- tled to a lien, is the amount of the reason- able wages paid to the men, with an addition- al sum for the value of the subcontractor's services, which the contract requires him to perform. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 9. Interest paid by contractor. A contrac- tor cannot increase the burden of the owner by an agreement with the lien claimant, made after the work is done, to pay interest at an increased rate; but in such case, as in anv other, there is right to interest at the lega'l rate, the amount owing, as well as the time of payment, being fixed and certain. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 3. Notice or Statement of Claim. 10. A claim of lien by another than the chief contractor, containing a statement of the particulars required by Code Civ. Proc. 1187, with nothing contradictory or destruc- tive thereof, is sufficient. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 11. Name of employer of lien claimant. Statement in claim of lien by subcontrac- tors, that the contract made by them with F. & Co., the contractor, was made by the latter "on behalf of and for said owner." does not vitiate the claim as not giving the name of the person by whom they were em- ployed; the quoted phrase being manifestly inserted on the theory of the principal con- tract being void for failure to make twenty- five per cent of the contract price payable thirty-five days after completion, in which case Code Civ. Proc. 1184, provides that work and material by others than the prin- cipal contractor shall be deemed done and furnished at the instance of the owner. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 12. Statement of value as including profit. There is no variance between claim of lien of subcontractors for value of work and ma- terial up to cessation of labor, estimated at contract price, stated also to be the value thereof, and evidence that this was the value of the work and material, plus twenty per cent for their profits as subcontractors. Sweet v. Fresno Hotel Co. (Cal.) 1918D-340. 13. Variance between statement and at- tached contract. It is no ground for objec- tion to claim of lien by S., stating that the work done by him was under contract be- tween him and the contractor, that the con- tract, made a part of the claim of lien, though signed in his name, purported to be a contract of S. & Co., it appearing by the evidence that S. & Co. was merely a name under which S. was doing business, and that no one else was interested therein; it not being necessary that the claim make this ex- planation, but enough that it asserts the ulti- mate fact that he made the contract. Sweet v. Fresno Hotel Co. (Cal.) 1918D-346. 4. Priority. 14. Between lien claimant and assignee of fund due to contractor. Lien Law, 25 (Mc- Kinney's Consol. Laws. Book 32, p. 97), giv- ing persons having liens under contracts for public improvements standing in equal de- grees as colaborers or materialmen priority according to the date of filing their respec- tive liens, even if construed in the light of section 13 (McKinney's Consol. Laws. Book 32, p. 65) providing that laborers for daily or weekly wages shall have preference over MENTAL ANGUISH MISTAKE. 161 all other claimants, does not give a lienor preference over a prior absolute assignee of moneys due under the contract. Riverside Contracting Co. v. New York (N. Y.) 1918C- 1075. (Annotated) 15. Under Lien Law, 25 (McKinney's Consol. Laws, Book 32, p. 97), giving persona having liens under contracts for public im- provements standing in equal degrees as colaborers or materialmen priority according to the date of filing their respective liens, the exclusion of evidence offered by a laborer or materialman for the purpose of showing that his notice of lien was filed in the comp- troller's office before an assignment by the contractor, was error, since the stamp of a municipal official is not conclusive proof, as between the original parties, of the time of filing a paper in his office. Riverside Con- tracting Co. v. New York (N. Y.) 1918C-1075. (Annotated) MENTAL ANGUISH. As element of damage in action for libel, see LIBEL AND SLANDER, 66. Recovery for mental anguish because of fail- ure to deliver death message, see TELE- GRAPHS AND TELEPHONES, 9. METAL. Judicial notice of tendency of metal to at- tract lightning, see EVIDENCE. MILEAGE. Allowance for mileage to county commission' er, see PUBLIC OFFICERS, 8. MILITARY CAMPS. Condemnation of land for military camps, sea EMINENT DOMAIN, 8, 14. its property of every kind, real, personal, and mixed, is not restricted to property used in connection with the mines, smelter, or rail- road of the grantor. Martin v. Bankers Trust Co. (Ariz.) 1918E-1240. 2. Evidence as to care of property of lessee. In a replevin suit by the successor of the lessee of mining property, where the question whether plaintiff was responsible for damages to the mine by squeezing and the accumula- tion of water is one of the important ques- tions in the case, testimony as to conversa- tions between plaintiff's mine superintendent and the representative of a defendant rela- tive to leaving a fireman in charge of the pump to keep it running, and as to similar conversations between plaintiff's mine super- intendent and a party who executed the court's orders in taking possession of the mine at expiration of the lease, are admis- sible. Bache v. Central Coal, etc. Co. (Ark.) 1918E-198. MINIMUM WAGE. Validity of statute establishing minimum wage for women, see LABOR LAWS, 4, 5. MINISTER. Failure to administer communion as defama- tion of character, see RELIGIOUS SOCIE- TIES, 4. Liability for issuance of letter forbidding communicants to read or subscribe to certain newspapers, see RELIGIOUS SOCIE- TIES, 6. % MINORITY STOCKHOLDERS. Protection of rights, see CORPORATIONS, 42. MINORS. See INFANTS. MILITARY LAW. See ARMT AND NAVT. MINERALS. See MINES AND MINERALS. MISNOMER. Designating legatee by nickname, see WILLS, 29-34, 41. Of landowner in tax foreclosure proceeding, see TAXATION, 35, 36. Waiver of misnomer of municipalty, see MU- NICIPAL CORPORTIONS, 33, 34 MINES AND MINERALS. Limitation of action to recover mining claim, see LIMITATION OF ACTIONS, 5-7. Rights of life tenant as to working or open- ing mines or to royalties therefrom, see LIFE ESTATES, 6-9. Taxation, see TAXATION, 6. 1. Property covered by deed of trust. A deed of trust by a mining company of all Ann. Cas. Dig. 1918C-E 11. MISREPRESENTATION. See FRAUD; INSURANCE; FIRE INSURANCE; LIFE INSURANCE. MISTAKE. Aa ground for rescission, cancellation or ref- ormation, see RESCISSION, CANCELLA- TION AND REFORMATION, 1-4, 12. 102 A.\\\. CAS. DIGEST (1918C-1018E). AB ground for setting aside award of arbi- trators, see ARBITRATION AND AWARD, 3- 9, 11-15. In verdict, see VERDICT, 5, 8, 9. MITIGATION OF DAMAGES. See DAMAGES, 1. Duty of owner of land condemned to mini- mize damage to growing crops, see EMI- NENT DOMAIN, 12. In action for libel, see LIBEL AND SLANDEB, 63, 64. MONEY HAD AND RECEIVED. See ASSUMPSIT, 1-5. MONOPOLIES. 1. Rule of board of trade. In a suit to restrain a board of trade from enforcing a rule prohibiting its members from purchas- ing or offering to purchase grain between sessions of the board at a price other than the closing bid, as in violation of the Anti- trust Act, July 2, 1890, c. 647, 26 Stat. 209 (9 Fed. St. Ann. [2d ed.] 644) it was error to strike from the answer allegations con- cerning the history and purpose of such rule, and to exclude evidence on that subject, as the legality of an agreement or regulation does not depend on whether it restrains com- petition, and the true test of legality is whether the restraint imposed is such as merely regulates or such as may suppress or even destroy competition, and to determine that question the court must consider the facts peculiar to the business, its conditions before and after the restraint was imposed, the nature of the restraint, and its effect actual or probable. Board of Trade v. United State (U. S.) 1918D-1207. (Annotated) 2. Such rule is a reasonable regulation con- sistent with the provisions of the anti-trust act, where it merely restricts the period of price-making by prohibiting price-making after the close of the session, and is restrict- ed in its operation to the purchase of grain ''to arrive" or grain already in transit, which constitute a small part of the day's sales of grain, and applies only during a small part of the business day and only to grain shipped to Chicago, and not to other markets to which most of the territory tributary to Chicago is also tributary, and where it has no appre- ciable effect on general market prices, but helps to improve market conditions by creat- ing a public market for grain "to arrive" in the place of private bids, by bringing more of the trading in such grain into the regular market hours, by bringing buyers and sellers into more direct relations, by distributing the business in such grain among a larger number of receivers and commission mer- chants, by increasing the number of country dealers, supplying them more regularly with bids, and increasing the number of bids re- ceived by them from competing markets, by eliminating risks necessarily incident to a private market and enabling country dealers to do business on a smaller margin by en- abling them to sell grain "to arrive" which they would otherwise have been obliged to ship to commission markets or sell for future delivery, by enabling Chicago grain merchants to trade on a smaller margin, and by enabling those engaged in trading in grain to arrive 1o fulfil their contracts by tendering grain to arrive on any railroad, whereas formerly shipments had to be made over the particular railroad designated by the buyer. Hoard of Trade v. United States (U. S.) 1918D-1207. (Annotated) 3. Control of price on resale. Contracts between a manufacturer of graphophones, etc., as assignee of patents, or its agents, and all dealers permitted to sell them through- out the country, which fixed the prices at which the articles might be resold, and covenanting that underselling is an infringe- ment of the patents, though speaking of the contract as a license, is not justified under the guise of the monopoly granted by the patent law. Boston Store v. American Graphophone Co. (U. S.) 1918C-447. (Annotated) MORTALITY TABLES. Judicial notice of, see EVIDENCE, 4. MORTGAGES AND DEEDS OF TRUST. 1. Mortgage by Conveyance Absolute in Form, 162. 2. Property and Title Conveyed, 163. 3. The Mortgage Debt, 163. 4. Assignment of Mortgage, 163. 5. Foreclosure of Mortgage, 163. 6. Sales for Payment of Mortgage Debt, 163. See CHATTEL MORTGAGES. Bar from raising question whether transac- tion mortgage as justifying court in failing to make finding, see TRIAL, 11. In excess of actual debt as fraudulent con- veyance, see FRAUDULENT SALES AND CONVEYANCES, 1. Inurement of after-acquired title of mort- gagor to instrument executed while prop- erty was subject to lien of lis pendens, see Lis PENDENS, 3, 4. Jurisdiction of state court to foreclose as affected by subsequent proceedings in bankruptcy, see BANKRUPTCY, 3. Notice of failing circumstances of mortgagor as affecting priority, see BANKRUPTCY, 4. Property covered by deed of trust of mining company, ee MINES AND MINERALS, 1. Validity of mortgage on property purchii-ed pendente lite, see Lis PENDENS, 2, :i. 1. Mortgage by Conveyance Absolute in Form. 1. Failure of grantor to assert rights. If, on the face of a deed and contract con- MORTGAGES AXD DEEDS OF TRUST. 163 cerning mining properties, the transaction clearly amounts to a mortgage of the prop- erties, the mortgagee gets no title by failure of the mortgagor to assert his rights in the property as such, because once a mortgage always a mortgage. Elling v. Fine (Mont.) 19180-752. 2. Effect of laches. Defendant, who sold mining property, the buyer and his wife exe- cuting a contract to reconvey part of the property, so that prima facie the transac- tion was a sale with option to repurchase, is barred by laches from contending that the transaction was intended as a mortgage, a conclusion to reach which extrinsic evidence was necessary, he having stood idly by for more than thirteen years while his grantee treated the property as his own. spent money upon it, paid taxes and died, while his execu- tors operated the property, improved it, and paid taxes, and while it passed through pro- bate proceedings and was formally distribu- ted. Elling v. Fine (Mont.) 1918C-752. (Annotated) 3. That a grantor claiming his deed was a mortgage delayed in asserting his' rights against his grantee and the latter's executor and heirs on account of lack of funds, be- cause he "didn't want to start anything" un- til satisfied of his ability "to go through with it," is not an excuse for the mortgagor's laches in delaying to contend that the trans- action involved was a mortgage. Elling v. Fine (Mont.) 1918C-752. (Annotated) 4. Presumption. Where the owners of mining property execute a deed conveying separate lodes and mill sites, and the grantee and his wife execute a contract, agreeing to reconvey on payment only ten lodes and mill Bites, comprised in a particular group, con- taining no reference to a loan, no mention of any indebtedness, and no engagement by the grantors to pay or do anything, the transaction is prima facie a sale to the gran- tee, with an option to the grantors to re- purchase. Elling v. Fine (Mont.) 1918C-752. 5. Burden of proof. One claiming that a deed was intended as a mortgage has the burden of proof where resort to extrinsic evidence is necessary. Elling v. Fine (Mont.) 1918C-752. 2. Property and Title Conveyed. 6. Nature of mortgagee's interest. In this jurisdiction, a mortgage on real estate is simply security for th payment of a debt, leaving the legal title to the mortgaged prem- ises in the mortgagor. Cleveland v. Bateman (X. M.) 1918E-1011. 3. The Mortgage Debt. 7. Mortgage for sum greater than debt. Though a mortgage is for a greater amount than the note secured thereby, the mort- gagee's lien ia in fact no greater than the amount of the note and interest thereon, and where that is satisfied out of the cash real- ized, he receives no title by buying in at foreclosure sale, and can convey none to a third party. Thomas v. Scougale (Wash.) 1918C-452. 4. Assignment of Mortgage. 8. Assignment of notes. A bona fide hold- er of notes secured by deed of trust takes the deed freed from defenses which might have been urged against the original mort- gagee and holder of the notes; the deed being treated as the notes. Peninsula Bank v. Wolcott (U. S.) 1918C-477. (Annotated) 9. Where a bank in due course of business, without notice that the makers were insol- vent, took notes secured by a deed of trust, the fact that the makers were adjudged bank- rupts within less than four months does not impair the security. Peninsula Bank v. Wol- cott (U. S.) 1918C-477. 5. Foreclosure of Mortgage. 10. Parties. A decree of foreclosure is a nullity as to the owner of the equity of re- demption not made a party defendant, but, under the registry acts, a mortgagee, whose mortgage is duly recorded, and who has no actual notice at the time he commences fore- closure proceedings, need only make a party defendant any subsequent purchaser or in- cumbraneer who has complied with the reg- istry acts. Wolfenberger v. Hubbard (Ind.) 1918C-81. 6. Sales for Payment of Mortgage Debt. 11. Nature of power of sale. In this juris- diction, a power of sale contained in a real estate mortgage is coupled with an interest, hence the power is not revoked by the death of the mortgagor, notwithstanding the fact that such a mortgage merely gives the mort- gagee a lien on the property or is a mere security for the debt. Cleveland v. Bateman IX. M!) 1918E-1011. (Annotated) 12. Requisites of conveyance. (a) All the essential requisites of the power contained in a mortgage must be strictly complied with. (b) Recitals, contained in a deed executed by virtue of a power of sale contained in a mortgage, that proper notice of sale was given are prima facie proof of such facts as against the parties and privies to the instru- ment containing the power, and the burden of overcoming such proof rests upon the party asserting the contrary. Cleveland v. Bateman (X. M.) 1918E-1011. 13. In whose name executed. A mortgagee in making a conveyance under a power in a mortgage should not execute the conveyance in his own name but in that of his principal, as the latter's attorney in fact. Cleveland v. Bateman (X. M.) 1918E-1011. 14. Right of mortgagee to purchase. (a) A mortgagee, in a mortgage deed which con- tains a power of sale on default, cannot be- come a purchaser at a sale which he, him- self, makes under the power, either directly or through the agency of a third person, unless expressly permitted by the terms of the instrument. (b) A mortgagee's purchase at his own foreclosure sale, when not authorized, is void- able only, giving to the mortgagor an election 104 ANN. CAS. DIGEST (1918C-1918E). either to ratify and affirm the sale or to avoid it and have it set aside. (c) The mortgagor's option must be exer- cised within a reasonable time and before the property has passed into the hands of an innocent purchaser for value and without notice. Cleveland v. Bateman (N. M.) 1918E-1011. MOTHER. See PABENT AND CHILD. MOTIVE. Evidence to show motive of insured to com- mit suicide, see LIFE INSUBANCE, 15. MOTOR VEHICLES. See AUTOMOBILES. Regulation where engaged in operating for hire, see CABRIERS OF PASSENGERS, 19- 20. MOVING PICTURE FILMS. Damages recoverable against express com- pany for delay in transportation, see CARRIERS OF GOODS, 21. MUNICIPAL CORPORATIONS. 1. Incorporation and Charter, 164. 2. Legislative Control, 165. 3. Powers: a. In General, 165. b. Power to Contract, 165. c. Power to Operate Public Utilities, 165. 4. Ordinances and Resolutions, 165. 5. Torts: a. Public or Governmental Functions or Duties, 166. b. Private, Local or Corporate Functions or Duties, 166. c. Torts of Officers, Agents and Em- ployees, 166. d. Notice of Claim, 167. 6. Action against Municipalities, 167. Assignment of moneys due under working contracts with municipalities, see AS- SIGNMENTS, 3, 5-8, 10-14. Construction of public improvement contract providing for retention of funds, see MECHANICS' LIENS, 1. Initiative ordinances, see INITIATIVE AND REFERENDUM, 1-2. Liability for injuries arising from defects in streets, see STREETS AND HIGHWAYS, 11- 17. Liability for personal injury resulting from permitting use of streets for racing and testing automobiles, see STREETS AND HIGHWAYS, 10. Party to condemnation proceedings as affect- ing right to change of venue because of prejudice or interest, see VENUE, 2-4. Power of eminent domain, see EMINENT DO- MAIN, 4, 5, 7. Power to compromise tax suit, see TAXA- TION, 34. Power to grant exemption from taxation, see TAXATION, 33, 46. Power to pass Sunday ordinances, see SUN- DAYS AND HOLLIDAYS, 1-3. Power to regulate storing of gasoline etc., see EXPLOSIONS AND EXPLOSIVES, 1-3. Power to tax, see TAXATION, 2. Right to remove spur tracks of street rail- way, see STREET RAILWAYS, 3-5. Statute authorizing formation of lighting districts, see LIGHTING DISTRICTS, 1-3. Validity of ordinance requiring payment of license by hawkers and peddlers, see HAWKERS AND PEDDLERS, 1-4. 1. Incorporation and Charter. 1. Statute giving option to city as to form of government. Laws 1914, c. 444, setting forth a number of forms of government for cities, and authorizing any city of the second or third class to adopt any of such forms of government by a majority vote of its elec- tors, does not violate Const, art. 3, 1, pro- viding that the legislative power shall be vested in the Senate and Assembly, or article 12, 1, providing that it shall be the duty of the legislature to provide for the organi- zation of cities and incorporated villages, or section 2, providing that laws shall not be passed, except in conformity with the con- stitution, or any other provision of the state or federal constitution. Cleveland v. Water- town (N. Y.) 1918E-574. (Annotated) 2. Laws 1914, c. 444, 37, providing that, under any of the plans of city government therein defined, the council, subject to the provisions of that act and applicable general laws not inconsistent therewith, and also sub- ject to the civil service law, and the provi- sions of all laws regulating the granting of franchises, the lease or sale of city real es- tate, and the incurring of municipal indebted- ness, may confer by ordinance upon any officer or employee any power, or impose upon any officer or employee any duty, thereto- fore conferred or imposed upon any officer or employee by law, and abolish the office or employment of any officer or employee whose powers or duties have ceased, and regu- late by ordinance the exercise of any power and the performance of any duty by any officer or employee, is not invalid, as it does not authorize the council to add to or take from the power already possessed by the city, but only to transfer and distribute the pow- ers the city officially has among the officials of the new government necessary for the proper management of the city's affairs. Cleveland v. Watertown (N. Y.) 1918E-574. (Annotated) 3. It is within the legislative province to direct in what way, through what board of municipal officers or agents, or by what mu- nicipal officers, the powers given a city shall MUNICIPAL COBPOKATIONS. 165 be exercised. Cleveland v. Watertown (X. Y.) 1918E-574. (Annotated) 4. Laws 1914, c. 444, is not invalid, as dele- gating the power to make a charter for a city or village, as the act is complete in itself, and is in legal effect a new charter, which the city does not make, but which it accepts in place of the existing charter, and it is competent for the legislature to frame a charter and permit the electors to determine whether or not they will adopt it. Cleve- land v. Watertown (N. Y.) 1918E-574. (Annotated) 5. Laws 1914, c. 444, is not invalid, because it delegates to cities adopting the forms of government therein specified, power to regu- late assessments, public safety, health, char- ity, and plumbers' licenses, since, while the exercise of powers relating to these subjects in a certain sense involves state functions, as does the exercise of powers relating to all officers of every city or village, they are powers which are not committed by the con- stitution solely to the legislature, but such as it may commit to a locality in so far as its government is concerned. Cleveland v. Watertown (N. Y.) 1918E-574. (Annotated) 6. Power of municipality to attack valid- ity. A municipal corporations, being a crea- ture of the legislature, cannot question the authority of its creator to amend or abrogate its charter, except in so far as the legislature attempts to exceed its own constitutional authority. But the general assembly is as well bound not to violate the mandates ex- pressed in the constitution as a corporation created by the legislature is controlled by its statutes. Hence a municipal corporation, having authority to prosecute and defend suits in the courts, may invoke the protection afforded by the constitution to prevent a vio- lation of its rights. The decision to the con- trary in Mayor and Council of the City of Carrollton v. Board of Metropolitan Police et al. 21 La. Ann. 447, is overruled. Gretna v. Bailey (La.) 1918E-566. 2. Legislative Control. 7. Statute providing for recall of officer. Acts 1911, p. 345, 14, providing for recall of city commissioner under the commission form of government for the city of Mobile, created by the act, is void as violating Const. 1901, 175, providing that municipal officers may be removed by certain courts for causes specified in section 173; since the act fixes the term of office at three years, and the additional phrase "until his successor is elec- ted and qualified" does not make the term indefinite or uncertain, nor does section 14 operate upon the term to cut it down to an indefinite or unfixed term, but operates only upon the individual commissioner. Wil- liams v. State (Ala.) 1918D-869. (Annotated) 3. Powers. a. In General. 8. A municipal corporation possesses such powers, and such only, as the state expressly or by necessary implication confers upon it, subject to addition or diminution by the state at its supreme discretion, since a municipal- ity is a creature of the state, and continues its existence under the sovereign will and pleasure. Walker v. Richmond (Ky.) 1918E- 1084. b. Power to Contract. 9. Parties who deal with a municipal cor- poration are required to know the extent of its authority, and act at their peril, unless the authority exists. Walker v. Richmond (Ky.) 1918E-1084. 10. Retaining benefits on repudiation of ultra vires contract. Where a municipality, in consideration of a property owner's set- ting his fence back twelve feet, agreed that the owners of the property should never be required to maintain a sidewalk, and that the city itself would maintain a pavement, a contract which was ultra vires, the city can- not retain the benefits of the transaction, while repudiating the contract. Walker v. Richmond (Ky.) 1918E-1084. c. Power to Operate Public Utilities. 11. Maintaining ice plant and cold storage system. The charter of the town of Arling- ton (Acts 1890-1891, p. 867; Acts 1905, p. 607; Acts 1913, p. 492) confers on the au- thorities of the municipality the power to establish and maintain an "ice plant and cold storage" within such municipality for the benefit of the inhabitants thereof, whenever they have complied with the preliminary steps' for such purpose as provided by the constitution and statute laws of the state. Saunders v. Arlington (Ga.) 1918D-907. (Annotated) 12. Sale of fuel to inhabitants. Rev. St. Me. 1903, c. 4, 87, authorizing any city or town to establish and maintain a permanent wood, coal and fuel yard for the purpose of selling wood, coal, and fuel to its in- habitants at cost, does not take the property of taxpayers for private uses in violation of the Fourteenth Amendment, especially where the highest court of the state has de- clared such purpose to be a public one. Jones v. Portland (U. S.) 1918E-660. (Annotated) 4. Ordinances and Resolutions. 13. Judicial review of ordinance. Although the action of a council in enacting ordinances under its delegated police power is subject to judicial review, yet such exercise of its dis- cretion may be set aside by the courts only when they can say the council has acted in an arbitrary or unreasonable manner. Pierce Oil Corp. v. Hope (Ark.) 1918E-143. 14. Presumption of validity. The action of a council in passing ordinances under its delegated police power is presumed to be legal, until the contrary is made to appear. iPierce Oil Corp. v. Hope (Ark.) 1918E-143. 15. Every intendment is to be made in fa- vor of the lawfulness of the exercise of munic- 1GG AXX. CAS. DIGEST (1J1SC-1'J1E;. ipal power making regulations to promote the public health and safety, it not 'being the province of the courts, except in clear cases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people of the community. Pierce Oil Corp. v. Hope (Ark.) 1918E-143. 16. Effect of express grant. Where the legislature, in terms, confers upon a munic- ipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursu- ant thereto cannot be impeached as invalid because it would have been regarded as un- reasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. Eos- well v. Bateman (N. Mex.) 1918D-426. 17. Provision not in terms local. A munic- ipal ordinance directed against conspiracies to injure trade, business, or commerce, and providing a penalty for violation thereof, has no extramural effect, however broad its terms, and therefore is not invalid on the ground that it is not local, special, and munic- ipal legislation. Hall v. Johnson (Ore.) 1918E-49. 5. Torts. a. Public or Governmental Functions or Du- ties. 18. Under common law the municipality is protected from liability only while exercis- ing the delegated functions of sovereignty, which include police regulation, crime pre- vention, preservation of health, fire preven- tion, care of the poor, and education of the young. Chafor v. Long Beach (Cal.) 1918D- 106. (Annotated) 19. Maintenance of pesthouse. Where a municipal corporation maintains a pesthouse for the treatment and isolation of persons who have been exposed to or affected with smallpox, it performs a governmental duty. Bvtler v. Kansas City (Kan.) 1918D-801. (Annotated) 20. The rule that the governmental agen- cies of the state are not liable in an action of tort for either misfeasance or nonfeasance is applied to an action against a city to recover damages for personal injuries resulting from the defective condition of the floor of a pest- house where plaintiff, who was affected with smallpox, was confined by the city authori- ties. Butler v. Kansas City (Kan.) 1918D- 801. (Annotated) 21. Collection of garbage. A city health commissioner while supervising the removal of garbage, and a city commissioner while authorizing and providing for its removal, are held to have been acting in a public and governmental, and not in a private or cor- porate, capacity. Montain v. Fargo (N. D.) 1918D-826. (Annotated) b. Private. Local or Corporate Functions or Duties. 22. Public assembly hall. A building con- structed by the city under St. 1903. p. 412, authorizing the city to incur indebtedness for a public assembly hall, i.s not one en- joined upon the municipality by positive law, and the duty of maintenance is not there- fore imposed by law. Chafor v. Long Beach (Oal.) 1918D-106. (Annotated) 23. When a municipal building is construc- ted and maintained not for governmental pur- poses, even though under permission of stat- ute, and though maintained for the benefit of inhabitants or such of them as desired to use it, the city acts in a private proprietary capacity, and is liable for its torts. Chafor v. Long Beach (Cal.) 1918D-106. (Annotated) 24. While schoolhouses, city halls, jvUs, and fire houses are governmental instrumen talities for injuries to persons in which the city is not liable the rule does not apply to public auditoriums or other buildings, though for the benefit, convenience, or advantage of the people, and even in the case of strictly governmental buildings if the city rents por- tion thereof, it is liable to the tenant for negligent maintenance. Chafor v. Long Beach (Cal.) 1D18D-106. (Annotated) 25. The true test whether a municipality is liable in tort for injuries to a person is not whether the municipality from renting its auditorium wherein the injury is caused is reaping a profit, and an act does not become governmental merely because the city from its performance reaps no profit. Chafor v. Long Beach (Cal.) 1918D-106. (Annotated) 26. Where the city under St. 1903, p. 412, constructs an auditorium partly over a bay, which it rents to any persons desiring the use of the same at fixed rentals for various classes of entertainments, and during a cele- bration by a private organization, to which all citizens are invited, the approach to the auditorium collapses, with injuries to per- sons, the city is liable to the same degree as if the building was owned by a private owner. Chafor v. Long Beach (CaL) 1918D- 106. (Annotated) 27. Degree of care required. Where a mu- nicipal public assembly hall is rented to an organization which invites all interested per- sons to a celebration of Queen Victoria's birthday, a citizen who attends is not a tres- passer, but a licensee by permission or invi- tation, and if the city "is at all responsible for injuries, it is responsible for the exer- cise of ordinary care. Chafor v. Long Beach (Cal.) 1918D-i06. (Annotated) c. Torts of Officers, Agents and Employees. 28. Tort of joint special committee. A joint special committee appointed by a city council, consisting of two members of the board of aldermen and four members of the common council, to arrange for a Fourth of July celebration and to have charge of the appropriation therefor, had no authority to admit citizens designated by a board of trade to places on the committee and subcommit- tees, or to allow them to join in tlr; contract for a fireworks display, and no right under their appointment or as agents of the city to receive and expend a sum raised by outside MUSIC NEGLIGENCE. 167 subscription, and such designated citizens were not the agents or representatives of the city council or of the city. Sroka v. Halli- day (R. I.) 1918D-961. 29. The council committee, together with the other citizens whom they permitted to have places thereon, would be deemed to have acted upon their personal responsibility, and they and the outside members were sub- ject to the same duties and liabilities in respect to one injured by fireworks used in the celebration, especially in view of their joinder in a special plea placing themselves before the court in the same attitude. Sroka v. Halliday (R. I.) 1918D-961. (Annotated) d. Notice of Claim. 30. Statement of time of accident. Un- der Laws 1886, c. 572, requiring, as a con- dition precedent to suit, notice of intention to sue a city for personal injuries and of the "time and place at which the injuries were received" to be filed within six months after the accident, notice of injuries from defective sidewalk, stating the time of the accident as August 20th, it in fact having occurred August 20th, is insufficient. Weisman v, Xew York (X. Y.) 1918E-1023. (Annotated) 31. Where the notice of personal injuries from defective sidewalk addressed to a city stated the time of the accident as August 20th. it having occurred August 28th, its insufficiency cannot be disregarded as not prejudicial to the city because plaintiff, on examination by the corporation's counsel before the trial, stated the accident occurred August 28th, where she subsequently served her complaint, alleging the original incorrect date of August 20th, since by her last and controlling words she authorized defendant city to believe that after all the correct date was Augiist 20th. and that that would be he one it would be compelled to meet on the trial. Weisman v. New York (N. Y.) 1918E-1023. (Annotated) 32. The insufficiency of a notice to a city of injury from defective sidewalk, because of erroneous statement of date of accident, is not waived by the injured person's being examined before trial ^by the corporation's counsel, at which hearing she stated the correct date. Weisman v. New York (N. Y.) 1918E-1023. (Annotated) 6. Action against Municipalities. 33. Waiver of misnomer. Where a munic- ipality was incorporated under the name and style of the "mayor and council of the town of Arlington," with the power to sue and be sued in that name, and to a suit against the 'town of Arlington" it appeared and pleaded to the merits in its true name without rais- ing the objection of misnomer, and subse- quently the petition was so amended as to designate the defendant as the "mayor and council of the town of Arlington," the error as to the name was waived by it. Commis- sioners of Mclntosh County v. Aiken, 123 Oa. 647 (51 S. E. 585). See'Rhodes v. Louis- ville, 121 Ga. 551 (49 S. E. 681). Such waiver was binding upon citizens and taxpayers who intervened and contested the right to vali- date bonds of the municipality (which was the object of the suit) ; and it was proper to overrule a demurrer by the interveners on the ground that the suit was not brought against the municipality in its corporate name and was a mere nullity. Saunders v. Arlington (Ga.) 1918D-907. 34. The evidence was sufficient to support the judgment validating the bonds, and none of the assignments of error are sufficient to require a reversal. Saundera v. Arlington (Ga.) 1918D-907. MUSIC. Power of school board to provide for in- struction of music, see SCHOOLS, 2-4. NAMES. See cross references given under Misnomer. NATIONAL BANKS. See BANKS AND BANKING. NATURALIZATION. See ALIENS, 7. NAVY. See ABUT AND NAVY. NEGLIGENCE. Contributory negligence of guest in auto- mobile, see AUTOMOBILES, 22, 23. Contributory negligence of person struck by automobile after alighting from street car, see AUTOMOBILES, 3, 4. Imputation of negligence to person riding in automobile, see AUTOMOBILES, 24. Indemnity contract as including liability for negligence, see INDEMNITY, 1. Injuries to tenant's wife by reason of negli- gence in care of premises, see LANDLORD AND TENANT, 9, 10. Liability for accidental shooting by sports- man, see WEAPONS, 1-5. Liability for injuries arising from defects in streets, see STREETS AND HIGHWAYS, 11-15. Liability for negligence in use of streets, see" STREETS AND HIGHWAYS, 9, 10. Liability for negligence in use of X-rays, see PHYSICIANS AND SURGEONS, 13-15. Liability of dentist for negligence, see PHYSICIANS AND SURGEONS, 11, 12. Liability of employer for negligence of inde- pendent contractor, see INDEPENDENT CONTRACTORS. 9-13. 168 ANN. CAS. DIGEST (1918C-1918E). Liability of municipal corporation, see MU- NICIPAL CORPORATIONS, 18-32. Liability of state for negligence of servants, see STATES, 5-8. Liability of water company for injuries from typhoid germs in water supply, see WATERWORKS AND WATER COMPANIES, 4-11. Necessity of proof of negligence in action for injury resulting from nuisance, see NUI- SANCES, 1. Of street car conductor as cause of collision with railroad train, see STREET RAIL- WAYS, 6. 1. Invitee. An invitee in a store is not to be too circumscribed as to his movements while waiting for a clerk to exhibit goods, but he has a right to inspect goods and fre- quent places used by other patrons of the store, and provided for their use by the storekeeper. Kress v. Markline (Miss.) 1918E-310. (Annotated) 2. Proximate Cause. To warrant a recov- ery for negligence, it is incumbent on the plaintiff to allege and show that the defend- ant was guilty of some negligent act which was the proximate cause of the injury, since the law looks to the immediate, not to the remote, cause of damage. Chancey v. Nor- folk, etc. R. Co. (N. C.) 1918E-580. 3. Where damage resulting from another's act does not flow naturally, legally, and with sufficient directness from such other's negli- gence, plaintiff is not entitled to recover. Chancey v. Norfolk, etc. R Co. (N. C.) 1918E-580. 4. Contributory negligence. To defeat a recovery because of the contributory negli- gence of the plaintiff, such negligence must contribute proximately as a cause of the in- jury but it need not be itself the proximate cause of it. Blume v. Chicago, etc. (Minn.) 1918D-297. 5. Failure to reply. Where the affirmative plea of plaintiff's contributory negligence in the answer is uncontroverted, though evi- dence on the issue of contributory negligence is received, and a verdict rendered for plain- tiff, the omission is not cured. Lancaster Electric Light Co. v. Taylor (Ky.) 1918C- 591. 6. Burden of proof. The law imposes on plaintiff suing for injuries caused by negli- gence the burden of showing by a preponder- ance of the evidence that the negligence was the cause of his injury, and that defendant was responsible for the negligence. Memphis St. R. Co. v. Cavell (Tenn.) 1918C-42. 7. In general, mere proof that an acci- dent injurious to plaintiff has occurred does not justify a verdict or judgment imposing liability therefor upon the defendant. Mem- phis St. R, Co. v. Cavell (Tenn.) 1918O42. 8. Condition of other similar property of defendant. In an action for damages for death of plaintiff's intestate, caused by sink- ing of boat, hired of defendant, in which he and his companions had gone rowing, evi- dence as to condition of other boats kept for hire by defendant is inadmissible, where it tends to prove that they were in various conditions as to repair, and little of it tended to prove boats were unseaworthy. Clark v. Detroit, etc. R. Co. (Mich.) 1918E-1068. 9. Question for jury. Where the facts are such that reasonable men may differ whether there was negligence, they should be sub- mitted to the jury. Gibson v. Payne (Ore.) 1918C-383. 10. The questions of contributory negli- gence and proximate cause are questions of fact for the jury, and the verdict of a jury determining such facts adversely to the de- fendant will not be set aside, unless the evi- dence is such that in the mind of the court reasonable men would necessarily arrive at a, different conclusion, and there is no reason- able basis for them to differ in this conclu- sion. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C-954. NEGOTIABLE INSTRUMENTS. See BILLS AND NOTES. Nature of certificate of corporate stock, CORPORATIONS, 35. NEGRO. Reference by prosecuting attorney to race of accused, see ARGUMENT AND CONDUCT OF COUNSEL, 2. Statute penalizing denial of accommodation in public places on account of race, see CIVIL RIGHTS, 1, 2. NEWLY DISCOVERED EVIDENCE. As ground for new trial, see NEW TRIAL, 1-4. NEWSPAPERS. Libelous statements, see LIBEL AND SLANDER. NEW TRIAL. Excessiveness of damages as ground, see DAMAGES, 6. New trial in disbarment proceeding, see AT- TORNEYS, 21. 1. Newly discovered evidence. On the facts stated in the opinion it is held that it was error not to grant a new trial on the ground of newly discovered evidence. Henry v. Missouri, etc. R. Co. (Kan.) 1918E-1094. 2. Diligence. The accused is not entitled to a new trial on the ground of newly dis- covered evidence tending to support his claim of alibi, where some of the evidence mus* have been within the knowledge of the ac- cused, and the other could have been discov- ered by diligence during the five years pre- ceding trial. McCue v. State (Tex.) 1918C- 674. 3. Cumulative evidence. Where several persons besides members of accused's own family testified in support of his defense of XOLLE PROSEQUI OPTIONS. 169 alibi, newly discovered testimony of other outside witnesses tending to support the de- fense is cumulative, and affords no ground for new trial. McCue v. State (Tex.) 1918C- 674. 4. Where there have been several trials and continuances, a new trial will not be granted on the ground of newly discovered testimony which is only cumulative. McCue v. State (Tex.) 1918C-674. NOLLE PROSEQUI. Effect of entry of nolle prosequi as to part of counts of indictment, see APPEAL AND EEROB, 101. Time for, see FOBMEB JEOPARDY, 3. NON EST FACTTJM. Plea in action against sureties, see SURETY- SHIP, 4-7. NONSUIT. See DISMISSAL AND NONSUIT. NONSUPPORT. Prosecution for nonsupport of child, see PAB- ENT AND CHILD, 4, 5. NOTES. See BILLS AND NOTES. NOTICE. See JUDICIAL NOTICE. Defects in notice of appeal, see APPEAL AND EBROB, 14. Duty of garnishee to notify principal defend- ant of garnishment proceedings, see GARNISHMENT, 1, 2. Notice to agent as notice to principal, see AGENCY, 16. Notice to owner of negligent operation of elevator, see ELEVATORS, 1. Of circumstances making carrier liable in special damages for delay in transporta- tion of goods, see CARRIERS OF GOODS, 20-25. Of claim for personal injuries against city, see MUNICIPAL CORPORATIONS, 30-32. Of claim requisite to mechanic's lien, see ME- THANICS' LIENS, 10-13. Requirement of notice of claim against car- rier of goods, see CARRIERS OF GOODS, 6-8. Waiver of notice of claim against carriers of live stock, see CARBIEBS OF LIVE STOCK, 3. NUISANCES. Right of city to remove spur tracks of street railway* as nuisance, see STREET RAIL- WAYS, 5. 1. Necessity for proof of negligence. In an action for injury resulting from a nuisance per se, no negligence need be proved. Sroka v. Halliday (R. I.) 1918D-961. NUNC PRO TUNC. Entry on record of traverse of allegation in answer, see PLEADING, 21. NURSES. Administration of anesthetic by nurse as practice of medicine, see PHYSICIANS AND SURGEONS. 5. OBJECTIONS AND EXCEPTIONS. Necessity to raise question on appeal, see APPEAL AND ERROR, 89-93. OCCUPANCY. By grantor as affecting right of grantee to possession, see ADVERSE POSSESSION, 1. OCCUPATION TAX. See LICENSES. OFFSET. See SET-OFF AND COUNTERCLAIM. Offsetting enhancement in value of other property in condemnation proceedings, see EMINENT DOMAIN, 14. OPEN AND CLOSE. Right to open and close, see ARGUMENT AND CONDUCT OF COUNSEL, 1. OPINION EVIDENCE. See EVIDENCE, 12-16. OFFICERS. See PUBLIC OFFICERS. OPTIONS. Construction of option timber contract, see TREES AND TIMBER, 1, 2. 170 AXX. CAS. DIGEST (1918C-1918E). Evidence as to circumstances surrounding making of option agreement, see EVI- DENCE, 32. For purchase of land, see VENDOR AND PUB- CHA8EB, 1-3, 8-12. Option contract as entitled to record, see RECORDING ACTS, 1. Proceeding to forfeit rights under deed exe- cuted pursuant to timber option, see DEEDS, 15, 16. ORDER OF PROOF. See TBIAL, 2, 3. ORDERS. See JUDGMENTS. Order for payment of money due on working contract as equitable assignment, see ASSIGNMENTS, 4. ORDINANCES. Initiated ordinances, see INITIATIVE AND REFERENDUM, 1, 2. OSTEOPATHT. Title and subject-matter of act relating to osteopathy, see STATUTES, 3. Validity and construction of statute regu- lating practice of osteopathy, see PHYSI- CIANS AND SURGEONS, 1-4, 6-8. PARENT AND CHILD. See INFANTS. Action for death of child, see DEATH BY WRONGFUL ACT, 5-7, Iff. Advancements to children, see ADVANCE- MENTS, 1-3. Custody and support of children on divorce of parents, see DIVORCE, 11-16. Estoppel to deny legitimacy of children by inconsistent position in litigation, see ESTOPPEL, 2. Liability of father for negligence of son while driving automobile, see AUTOMOBILES, 12, 13. Recovery by widow as barring rights of posthumous child to recover for death of father, see DEATH BY WRONGFUL ACT, 8, 9. Right of child to recover for death of father, see DEATH BY WRONGFUL ACT, 18. Settlement of bastardy proceeding as bar to action by father to recover damages for seduction, see SEDUCTION, 6. Suit by divorced wife for death of child, see DEATH BY WRONGFUL ACT, 6. 1. Liability for tort of child. A father is not liable for the torts of his minor or adult children simply because of the relationship. Hays v. Hogan (Mo.) 1918E-1127. 2. Recovery by father for loss of services. A father may maintain an action, under the provisions of section 4992, Gen. Stat. 1909, to recover for the loss of services re- sulting from injuries received by his minor son by reason of the failure of defendant to comply with the statute which provdes for the safety of persons employed in coal mines. (Gen. Stat. 1909, 4987.) Henry v. Missouri, etc. R. Co. (Kan.) 1918E-1094. 3. Services rendered to parent. Where a married daughter and her family, or husband, live at the house and at the expense of her mother, who, being made defendant in a suit brought by her other children for her inter- diction, is provided, at her own expense, with such medical attention, nurses, and servants as she needs, and no question of paying her daughter for her care and attention is sug- gested, a claim therefor against the succes- sion of the mother is properly rejected, the more especially where it appears that the daughter is one of two heirs who receive un- der the will of the mother one-third of a con- siderable estate over and above the legitime to which the law entitles them. Pons's Suc- cession (La.) 1918D-939. 4. Nonsupport of child. In a prosecution under the statute making it a criminal of- fense for a parent to neglect or refuse, with- out lawful excuse, to provide for the support of his children in destitute or necessitous cir- cumstances, it is not a defense for a father upon whom rested the duty of providing such support to show that the necessities of the children were relieved by the interposition of others. State v. Wellman (Kan.) 1918D- 1006. 5. Conviction of nonresident parent. A person who has never been in this state may, under some circumstances, be rightfully con- victed here of a violation of the statute mak- ing it a felony for a parent, without lawful excuse, to neglect or refuse to provide for the support of his children under the age of six- teen years who are in destitute circumstances. State v. Wellman (Kan.) 1918D-1006. PARI MATERIA. Construction of statutes in pari materia, see STATUTES, 16. PARKS AND PUBLIC SQUARES. 1. Diversion to improper use. Where the owner conveyed to a city land to be used as a public park only and to be improved and properly cared for as such with a dedication to the public forever, an abutting property owner can maintain a suit in equity to pre- vent a use of the park foreign to park pur- poses. Dodge v. North End Fmp. AS--OC. (Mich.) 1918E-485. 2. Erection of building in park. Where a pavilion was erected in a public park to serve the double purpose of a waiting room for street cars and refreshment and shelter room for the public using the park, and the build- PAROL CONTRACTS PARTNERSHIP. ing was located at proper and convenient place for both purposes, such building and use were not foreign to ''public park" purposes. Dodge v. North End Imp. Assoc. (Mich.) 1918E-485. (Annotated) PAROL CONTRACTS. See CONTRACTS; FRAUDS, STATUTE OF; SALES. PAROL EVIDENCE. See EVIDENCE, 28-35. PAROL TRUST. \ See TRUSTS AND TRUSTEES, 1-13. PARTIAL INVALIDITY. Of contract, see CONTRACTS, 13. PARTIES TO ACTIONS. See INJUNCTIONS, 14, 15; Quo WARBANTO, 2-4; RESCISSION, CANCELLATION AND REFORMATION, 11. In suit to cancel deed from state, see PUB- LIC LANDS, 15-19a. Necessary parties to action for foreclosure of mortgage, see MORTGAGES, 10. Nonresidence of parties defendant as affect- ing right to amend petition, see PLEAD- ING, 19. Substitution of parties in action by foreign corporation as trustee to foreclose deed of trust, see CORPORATIONS, 50. Validity of judgment against partners in action against firm, see PARTNERSHIP, 5. Weight of testimony of party, see TRIAL, 8, 9. 1. Virtual representation. That one is not named as a party to a suit in equity does not necessarily prevent his being concluded by the decree, since his interest may be repre- sented by others who are formal parties. Mc- Clelland v. Rose (U. S.) 1918C-341. (Annotated) 2. Where members of a class are joined as representatives of the class, such fact should appear from the record as well as the reason why the others are not brought in and the relation of those sued to the subject-matter of the suit, so as to present to the court for determination the question whether or not they properly represent others not before the court. McClelland v. Rose (U. S.) 1918C-341. (Annotated) PARTNERSHIP. Appearance by partner, see APPEARANCE, 1. Death of partner as affecting appeal in suit against partnership, see APPEAL AND ER- ROR, 11. Dissolution by war, see ALIENS, 3. 1. Nature. A partnership is a distinct en- tity from the individuals who compose it. Holmes v. Alexander (Okla.) 1918D-1134. 2. Nature of title to realty. A deed to a partnership, as such, vests the full equitable title to the land in the members of the part- nership as tenants in common. Robinson v. Daughtry (N. C.) 1918E-1186. 3. Power of partner to convey firm realty. While each partner is the agent of all the others and may bind himself and the other partners, such agency does not ordinarily permit one partner to convey partnership realty. Robinson v. Daughtry (N. C.) 1918E- 1186. (Annotated) 4. Deed by partner as contract. Where a partnership was engaged in disposing of rights to sell an article, receiving land and other property in payment and converting it into money, a deed by a partner having charge of a territory and authorized to dispose of land received by him, while not effective to pass title, is valid as a contract to convey. Robinson v. Daughtry (N. C.) 1918E-1186. 5. Parties to judgment. In an action against a partnership, where service is made upon the firm only, a judgment rendered against the individuals composing the part- nership is void for the reason that it is ren- dered against parties not before the court. Holmes v. Alexander (Okla.) 1918D-1134. (Annotated) 6. Right to accounting. When a partner- ship business is closed out, a cause of action for an accounting and settlement arises be- tween the partners, under an implied contract mutually and equally to share the profits and bear the burdens of the partnership Brooks v. Campbell (Kan.) 1918D-1105. 7. Limitations against action for account- ing. A partnership business was closed out in April, 1908. An action for an accounting and settlement and for moneys due to one partner from the other partners was not be- gun until September, 1913. Held that such action was barred by the statute of limita- tions. (Civ. Code, 17, subd. 2.) Brooks v. Campbell (Kan.) 1918D-1105. (Annotated) 8. A partnership of three members estab- lished a business at Ardmore, Okla. The business was a failure, and was closed out by the plaintiff as manager with the consent of the other partners. Two years and three months later plaintiff collected a claim against a railway company for loss of goods shipped by him to the other partners upon closing out the partnership business. Plain- tiff voluntarily placed the sum collected to the credit of the defunct partnership. Held that such voluntary payment did not inter- rupt the running of the statute of limitations in plaintiff's own favor. Brooks v. Campbell (Kan.) 1918D-1105. (Annotated) 172 AN^ T . CAS. DIGEST (1918C-1918E). PARTY WALLS. PENALTIES. See ADJOINING LANDOWNERS, 1-3. PASSENGERS. See CABBIEBS OF PASSENGEBS. PATENTS. Control of price of patented article on re- sale as monopoly, see MONOPOLIES, 3. Jurisdiction to determine rights under patent law, see COUBTS, 2. Patent of title to public lands, see PUBLIC LANDS, 1, 2. PATIENT. Who is "patient,' UORS, 5. see INTOXICATING LIQ- PAYMENT. Assignment of progress payment on public improvement contract, see ASSIGNMENTS, 30. Extension of time as discharge of accommo- dation maker, see BILLS AND NOTES, 1, 2. Extension of time for payment as considera- tion for contract of suretyship, 2, 3. Necessity of return of part payment received under insurance policy in suit on policy, see RELEASE AND DISCHAGBE, 10. Of bequests, see WILLS, 52, 53. Of premiums on life insurance, see LIFE IN- SURANCE, 1-3. Part satisfaction by one of several tort- feasors as inuring to benefit of all, see RELEASE AND DISCHARGE, 7. Right of seller of land under verbal contract to retain part payment on repudiation of contract, see FRAUDS, STATUTE OF, 4. 1. Check as payment. Where a tenant mails a checK for the amount of rent then due, containing a notation "Lot C," when that covered by the lease was "Lot A," not owned by th landlord, the latter must have known that the check was intended as payment for "Lot A." Moore v. Twin City Ice, etc. Stor- age Co. (Wash.) 1918D-540. 2. Waiver of objection. Where tender of rent in the form of a check was not refused because it was not made in cash, the landlord, in his action for a forfeiture, cannot claim that the tender should have been made in money and not by check. Moore v. Twin City Ice, etc. Storage Co. (Wash.) 1918D-540. PEDDLERS. See HAWKERS AND PEDDLERS. Provision for penalty in charter party as limiting recovery in case of entire re- pudiation of charter, see SHIPS AND SHIPPING, 3, 4. PENSIONS. 1. Validity of statutes. Pension acts to be valid can only confer pensions upon persons who at the time of receiving them are oflicei - or employees ot the municipality. People v. Abbott (111.) 1918D-450. 2. Act pensioning police officers. Police Pension Fund Act (Laws 1909, p. 133), as amended by Laws 1913, p. 174, provides in section 1 that there shall be set apart certain moneys to constitute a police pension fund. Section 3 declares that whenever any person who at the time of the taking effect of the act is a member of the police force or who shall thereafter become a member of such force shall have served for twenty years, he shall, aftes having reached the age of fifty, receive a yearly pension after retirement. Section 4 provides for the payment of a pen- sion to any policeman who has become physi- cally disabled while in, and in consequence of, the performance of his duty. Sections 6 and 13 make other provisions with relation to the pensions. Const, art. 4, 19, 20, for- bid the general assembly from authorizing extra compensation to a public officer after service has been rendered or contract made, and prohibit the state from becoming r.- sponsible for the debts of or in any manner extending credit to any individual, while article 9, 10, 11, declare that taxes levied by the general assembly upon municipal cor- porations must be uniform and that the fees and compensation of no officer shall be in- creased or diminished during' Ins term. It is held that, as pensions to municipal officers are sustained on the ground of being com- pensation for services for which adequate compensation has not already been made and are intended to promote fidelity of service, the pension act is not in violation of such constitutional provisions. People v. Abbott (111.) 1918D-450. (Annotated) 3. In such case, as it appears that only a small percentage of the police pension fund will be derived from the salaries of such of- ficers, and as_ section 4 provides for the pay- ment of a pension at any time to a policeman physically disabled in the performance of his duty, the act must be deemed applicable to police officers in active service who had served a period of twenty years and were over the age of fifty when it went into force, though of course the act is not applicable to those who had previously retired from such service. People v. Abbott (111.) 1918D-450. 4. Police Pension Act, as amended in 1913. section 1, providing that there shall be set apart moneys to Constitute the police pension fund, is mandatory; the ordinary meaning of the word "shall' being mandatory. People v. Abbott (111.) 1918D-450. PERCOLATING WATERS PHYSICIANS AND SURGEONS. 173 PERCOLATING WATERS. Use of, see WATEBS AND WATEROOXJBSES, 1-3. PEREMPTORY INSTRUCTIONS. See VERDICT, 10, 11. PERMANENT DISABILITY. Under insurance policy, see ACCIDENT INSUR- ANCE, 1, 4. Under Workmen's Compensation Act, see MASTEB AND SERVANT, 11, 12. PERMISSIVE OCCUPANCY. By grantor as affecting right of grantee to possession, see ADVERSE POSSESSION, 1. PERPETUITIES. 1. Trust to pay income for one life and twenty-one years. A trust, whereby income was left to the testator's son for life with directions that upon the death of his son the income should be equally divided among his surviving children or the issue then living of deceased children, until the first child should reach the age of forty, and in any event not before twenty-one years after the son's death, when the principal should be divided, is not bad as a perpetuity. Boston Safe Deposit, etc. Co. v. Collier (Mass.) 1918C-962. PERSONAL INJURIES. See CARRIERS OF PASSENGERS: DAMAGES; EXPLOSIONS AND EXPLOSIVES; LAND- LORD AND TENANT; RAILROADS; STREET RAILROADS : STREET AND HIGHWAYS. PEST HOUSE. Maintenance of pest house as governmental function, see MUNICIPAL CORPORATIONS, 19, 2O. PHOTOGRAPHS. As evidence, see EVIDENCE, 24-27. PHYSICIANS AND SURGEONS. 1. Validity of Statutes, 173. 2. Construction of Statutes, 173. 3. Prosecutions for Violation of Statutes, 173. 4. Compensation, 174. 5. Liability for Malpractice, 175. Admissibility of physician's death certificate, see EVIDENCE, 22. Duty of employer maintaining relief depart- ment to furnish medical aid, see MASTER AND SERVANT, 28-34. Employment of unlicensed assistant dentist as defense to action on indemnity policy, see INSURANCE, 26-29. furnishing prescription for intoxicating liq- uors, see INTOXICATING LIQUORS, 4-^7, 14. Indemnity against liability for malpractice in practice of dentistrv, see INSURANCE, 23-29. Privileged communications between physi- cian and patient, see WITNESSES, 6. Title and subject-matter of act relating to osteopathy, see STATUTES, 3. 1. Validity of Statutes. 1. Practice of osteopathy. Rev. Codes, 1.5JIO, making it unlawful to practice osteo- pathy without a license from board of exam- iners, does not make an arbitrary classifica- tion denying the right of citizens to engage in a lawful occupation, and so constitute an abxise of the police power. State v. Hopkins (Mont.) 1918D-956. (Annotated) 2. Inclusion of chiropractic in osteopathy. Rev. Codes, 1605, including in its definition of the practice of osteopathy, all treatment by use of the hands or mechanical appliances, and so including the practice of chiropractic for the purpose of requiring qualifications and a license to practice, is not an attempt to confer a monopoly on the school of oste- opathy. State v. Hopkins (Mont.) 1918D- 956. (Annotated) 3. To require a chiropractor, whose treat- ment is confined principally to the spine, to take an examination on anatomy and the other branches of science prescribed by Rev. Codes, 1598, for examination of osteopaths generally, as does section 1605, by defining the practice of osteopathy so as to include the practice of chiropractic, cannot be said to have no proper relation to such practice. State v. Hopkins (Mont.) 1918D-956. (Annotated) 2. Construction of Statutes. 4. Right of physician to practice oste- opathy. The proviso to Rev. Codes, 1605, defining the practice of osteopathy, that noth- ing in the section shall be construed to re- strain a legally licensed physician or surgeon in the practice of his profession, does not per- mit a practitioner of medicine or surgery to practice osteopathy. State v. Hopkins (Mont.) 1918D-956. 3. Prosecution for Violation of Statutes. 5. Administration of anesthetic by nurse. Ky. St. 2613, makes it unlawful for any person to practice medicine in any of its branches in the state who has not registered a certificate of the state board of health au- thorizing him to engage in the practice. Sec- tion 2615, subsection 5, provides for the ex- amination by the state board of health of ANN. CAS. DIGEST (UML80-rl18E). any other JHM-SOHS applying for authority to treat the sick or injured or in any way dis- charge the duties usually performed by physicians, and that the term "practice of medicine" shall not include trained or other nurses, etc. Section 2618 provides that to announce to the public in any way a readi- ness to treat the sick and afflicted shall be deemed to be engaging in the "practice of medicine." A duly licensed and trained nurse was employed to administer anesthetics by a duly licensed surgeon under his direction, and the administering in each case was made by her under his personal direction and su- pervision. It is held, that in the performance of such services the nurse was not engaged in the "practice of medicine" within the stat- ute. Frank v. South (Ky.) 1918E-682. (Annotated) 6. Information. Information for practicing osteopathy without a license from the board of osteopathic examiners board, declared un- lawful by Rev. Codes, 1596, need not nega- tive the defendant having procured a tempo- rary certificate from the secretary of the board, as permitted by section 1597 ; such procurance being a matter of defense. State v. Hopkins (Mont.) 1918D-956. 7. Sufficiency of evidence. The register of names of all applicants for license to practice osteopathy, whicu Rev. Codes, 1585, requires the secretary of the board of osteopathic ex- aminers to keep, whether they are granted or refused a license, and which such section de- clares to be prima facie evidence of all mat- ters recorded therein, disclosing that one prosecuted for practicing without a license had never applied to the board for a license, nor even to the secretary, as permitted by section 1597, for a temporary license or cer- tificate, with no evidence to contradict it, is sufficient on that point. State v. Hopkins (Mont.) 1918D-956. 8. Even if the allegation of the information for practicing osteopathy without a license from the board of osteopathic examiners that defendant was not a licensed practitioner of medicine or surgery is material, the register of applicants to the board of medical exami- ners for a certificate to practice, required by Rev. Codes, 1586, to be kept by such board, and by such section declared prima facie evi- dence of all matters therein kept, and by sec- tion 7962 presumed to have been correctly kept, not showing defendant to have been an applicant, is sufficient evidence thereon. State v. Hopkins (Mont.) 1918D-956. 4. Compensation. 9. Construction of contract. Where the services of a specialist are engaged under a contract that they shall be paid a certain sum in the event of certain specified possible happenings and a larger amount in the event of other happenings, they can only recover according to their contract, and, if the speci- fied possible happenings do not happen, can- not recover the larger amount. Pons's Suc- cession (La.) 1918D-939. 10. Proving nature of services. One who seeks to recover for medical services upon the basis of consultations at so much per consul- tation or per visit should be able to show ho\v many consultations or visits were had or made. Pons's Succession (La.) 1918D-939. 5. Liability for Malpractice. 11. Proof of negligence of dentist. The jury are not obliged to believe the expert testimony, though uncontradicted, that for defendant dentist to allow a tooth, while being extracted, to fall into plaintiff's throat, is consistent with due care. Toy v. Mackin- tosh (Mass.) 1918C-1188. (Annotated) 12. Though the jury in an action against a dentist for permitting plaintiff, while uncon- scious, to swallow a tooth being extracted, may disregard the expert testimony for de- fendant that the tooth had nothing to do with plaintiff's condition afterwards, yet whether hemiplegia, aphasia, and plaintiff's weakened condition and inability to work, with which, after the accident, he was afflict- ed, might be the result thereof, not being a matter of common knowledge and observa- tion, but depending on affirmative proof, with the burden on plaintiff, the jury may not find such connection, in the absence of testimony, other than that soon after the accident these conditions arose. Toy v. Mackintosh (Mass.) 1918C-1188. (Annotated) 13. Injury by use of X-ray. The evidence is sufficient to sustain a finding that an in- jury to the person of the plaintiff was the result of a burn coming from the taking of an X-ray. Holt v. Ten Broeck (Minn.) 1918E- 256. (Annotated) 14. There was evidence having a tendency to prove the defendant negligent in the opera- tion of the X-ray apparatus; and it being wholly under his control and the injury not being one naturally resulting when the ap- paratus was properly used, the nlle of res ipsa loquitur applies. This rule does not shift the burden of proof of the defendant, but permits the jury to draw an inference of negligence from the result. Holt v. Ten Broeck (Minn.) 1918E-256. (Annotated) 15. The X-ray was not applied for curative purposes. In determining negligence in the operation of an X-ray machine, the test is that of ordinary care, and it is not a matter of importance whether one operating it is a physician. Holt v. Ten Broeck (Minn.) 1918E-256. (Annotated) PICKETING. Validity of ordinance against picketing, see LABOE COMBINATIONS, 1. PLACE OF PUBLIC ACCOMMODA- TION. Statute forbidding denial of rights in, see CIVIL RIGHTS, 1, 2. PLEADING. PLEADING. 1. Construction of Pleadings, 175. 2. Complaint or Declaration, 175. 3. Plea or Answer, 175. 4. Demurrer, 176. 5. Reply, 176. 6. Amendment of Pleadings: a. Allowance of Amendment, 176. b. Time of Amendment, 176. c. Effect of Amendment, 176. 7. Issues and variance, 176. 8. Verification, 176. See ACCOUNTS, 1, 2; CONTRACTS, 36; DI- VORCE, 2; EQUITY, 1, 3; RESCISSION, CANCELLATION AND REFORMATION, 8-10; LIBEL AND SLANDER, 44-47; INJUNCTIONS, 16, 17. Admissions in pleading, see ADMISSIONS AND DECLARATIONS, 13. Conformity of judgment to pleadings, see JUDGMENTS. 2, 3. Departure in pleading in action on insurance policy, seo INSURANCE, 22. Failure to reply to plea of contributory neg- ligence, see XEGLIGENCE, 5. Judgment on pleadings, see JUDGMENTS, 5. Objections, see APPEAL AND ERROR, 95, 96. Pleading foreign judgment, see CONFLICT OF LAWS, 5. Plea of non est factum in action on bond of sheriff, see SURETYSHIP, 4. Striking out unnecessary special plea in ac- tion on bond of public officer, see SURE- TYSHIP, 7. 1. Construction of Pleadings. 1. Construction against pleader. Any pleading, whether at law or in equity, is to be most strictly construed against the pleader thereof, and this principle applies with especial force to a plea which is in the nature of a confession and avoidance, and, where such a plea has on the face of it two intend- ments, it must be construed most strongly against the party who pleads it. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 2. Complaint or Declaration. 2. Averment of promise to pay. A special count in a declaration in assumpsit, counting upon an original and a second or modified con- tract, and which after averring both contracts charges a promise on the part of the defend- ant to pay the amount accrued to plaintiff under the contracts pleaded, is not rendered bad on demurrer because of its omission to charge a promise to pay "the sum of dollars" alleged in a previous paragraph to be due under the first or original contract pleaded.' Parkersburg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 3. Xor is such count bad on demurrer for failure to aver a promise of defendant to pay respectively the two several sums demanded, one accruing to plaintiff under the contracts in writing pleaded, and the other under other contracts pleaded, but not in writing, such promises being comprehended under the gen- eral averment, of a promise to pay a sum larger than the aggregate of both items, in- tended and sufficient to cover both sums sued for. Parkersburg, etc. Sand Co. v. Smith (W. Va.) 1918E-449. 4. Xor is such count bad on demurrer, be- cause it avers a promise to pay interest on the sum sued for from a date anterior to the making of the second of said contracts, inter- est being incident merely to the right to re- cover the principal sum sued for. Parkers- burg, etc. Sand Co. v. Smith (W. Va.) 1918E- 449. 3. Plea or Answer. 5. Nature of plea in confession and avoid- ance. A plea in justification or excuse ad- mits the facts alleged by the plaintiff, but in effect denies that the plaintiff had at any time a good cause of action, either because the conduct of the defendant is justified in law, or because he is excused from liability in the particular case through some act or conduct of the plaintiff. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 6. Requisites of plea. All matter in con- fession and avoidance must be pleaded specially, the plea must confess the facts pleaded, and the plea must avoid, and the avoidance must be pleaded coextensive with the confession, and must be an answer to the whole of what is adversely alleged. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 7. Necessity of answering all counts "Where a plea in the nature of confession and avoidance interposed to an entire declaration, consisting of a number of counts, is found to answer only some of such counts, it is de- murrable. Florida East Coast R. Co. v. Pet- ers (Fla.) 1918D-121. 8. Necessity of special plea. In an action on the case, since the adoption by this court of rules 71 and 72 of the rules of circuit court in common- law actions, the defendant has the right to file the plea of not guilty to- gether with special pleas in the nature of confession and avoidance, and, if he would avail himself of the benefit of certain matters of defense, he must file such special pleas. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 9. Requisites of plea in bar. A plea in bar of the plaintiff's action must be certain to a common intent; it must be direct and positive in the facts set forth, and must state them with necessary certainty: and a plea which professes to be to the entire declaration, but omits to answer a material part thereof, is bad on demurrer. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 10. Duplicity. Every plea must be simple, entire, connected, and confined to a single point. A plea which contains more than one independent fact, or set of facts, either of which alone is a sufficient answer to the dec- laration, is bad for duplicity, whether the defense is in bar, or in abatement, or in both. Florida East Coast R. Co. v. Peters (Fla.) 1918D-121. 176 . CAS. DIGEST (1918C-1918E). 4. Demurrer. 11. Relation back. A demurrer to an af- firmative defense enables the defendant to question the sufficiency of the complaint. Manson v. Curtis (X. Y.) 1918E-247. 12. Effect as admission. Demurrer to an answer admits the facts pleaded. Walker v. Richmond (Ky.) 1918E-1084. 13. When a pleading is challenged by de- murrer, the court must assume that ita allegations are true. Paulson v. Weeks (Ore.) 1918D-741. 14 Pleading good in part. Demurrer to answer as a whole, good so far as it denies averments of the petition, is properly over- ruled, though the attempted justification in the answer of part of the alleged slander is insufficient. Ray v. Shemwell (Ky.) 1918C- 1122. 5. Reply. 15. Departure. A plaintiff cannot allege that he has fully complied with a contract, and later shift his ground by replying that the omissions charged in defendant's answer were waived. Waller v. New York Ins. Co. (Ore.) 1918C-139. 6. Amendment of Pleadings. a. Allowance of Amendment. 18. Necessity that cause of action be stated. An amendment to a complaint will not be permitted where the complaint, even if so amended, would fail to state a cause of action, under the general rule that amend- ments to pleadings should be permitted in furtherance of justice. Davis v. State (Idaho) 1918E-911. 17. Amendment of no avail.' Under sec- tion 1, c. 7, Kurd's Rev. St. 1915-16, giving power to permit amendments for furtherance of justice, etc., an amendment to an affidavit of merit, which is essential to the proper presentation of a defense, should be per- mitted, although the allowance of an amend- ment under this section is largely discretion- ary with the trial court, and an amendment which would be of no benefit to the party seeking it need not be allowed. Scovill Mfg. Co. v. Cassidy (111.) 1918E-602. 18. In a suit on guaranty, the refusal to permit an affidavit of merit to be amended to categorically deny the manufacture and delivery of articles covered by the guaranty, in order to place upon plaintiff the burden of proving such facts, was not injurious to defendant, Avhere the proof in the record showed that plaintiff had delivered such goods of value exceeding the guaranteed sum. Scovill Mfg. Co. v. Cassidy (111.) 1918D-602. 19. Effect of nonresidence of parties. A petition which fails to state a cause of ac- tion may be amended so as to make it state a cause of action, although some of the de- fendants may not be residents of the county in which the petition is filed and may be attacking the jurisdiction of the court be- cause of such nonresidence. Wells v. Han- sen (Kan.) 1918D-230. b. Time of Amendment. 20. Amendment on appeal. Where plain- tiffs have a cause of action, but have mis- taken their remedy, the supreme court may,, under St. 1915, 2836b, authorize amend- ments of pleadings on appeal. State v. Dis- trict Board (Wis.) 1918C-584. 21. Nunc pro tune order after judgment. A mine pro tune order cannot be made solely on affidavits, but must have some record evidence therefor, so that after verdict and judgment for plaintiff the court cannot enter, on affidavits by counsel, a nunc pro tune order traversing on the record an affirmative allegation of the answer. Lancaster Electric Light Co. v. Taylor (Ky.) 1918C-591. c. Effect of Amendment. 22. Under sections 4160 and 4171, Code 1915, in every amendatory or supplemental pleading filed by a party, it is necessary for him to therein restate his entire cause of action, defense, or reply, and all matters set forth in his original pleading and not carried forward into his amended or supplemental pleading are abandoned, and a judgment for the defendant dismissing a cause on the merits is res adiudicata only as to such mat- ters as were carried forward by a plaintiff into his amended or supplemental complaint. Albright v. Albright (X. Mex.) 1918E-542. 7. Issues and Variance. 23. Plaintiff suing for injuries caused by negligence is under the burden that his proof in substance shall correspond with the aver- ments of his pleadings. Mempnis St. R. Co. v. Cavell (Tenn.) 1918C-42. 24. Unnecessary allegations. Where plain- tiff's petition, in an action for damages for fraudulent manipulation of a popularity con- test, is in two counts, one of conspiracy, and' another for breach of an implied contract, failure to support the first does not defeat the action, but it is sufficient if other alle- gations constituting the second cause of ac- tion are sustained, since failure to prove un- necessary allegations cannot defeat an ac- tion. Smead v. Stearns (Iowa) 1918C-745. 8. Verification. 25. Waiver. Although section 110 of the Civil Code requires that the answer to a petition in an action founded on a written instrument for the unconditional payment of money shall be verified, the verification is waived when the plaintiff joins issue on the answer, introduces evidence contradicting such defense, and asks instructions covering his theory of the law pertaining thereto. Emery v. Bennett (Kan.) 1918D-437. (Annotated) PLEDGE. Priority of pledge of stock to lien of build- ing and loan association, see Btrn.Di.xG. AND LOAN ASSOCIATIONS, 1-8. POLICE OFFICERS PEESCBIPTIONS. 177 1. Mortgage or pledge. The transfer of title of incorporeal property is generally an essential part of the delivery of it m pledge, and if there is a doubt whether it is a pledge or a mortgage the law favors the conclusion that it is a pledge. Martin v. Bankers' Trust Co. (Ariz.) 1918E-1240. 2. An assignment of corporate stock us collateral security, though transferring title t^ the stock, is a pledge and not a chattel mortgage. Martin v. Bankers' Trust Co. (Ariz.) 1918E-1240. 3. Consideration. A pre-existing indebted- ness is a sufficient consideration to sustain an assignment of corporate stock as security. Martin v. Bankers' Trust Co. (Ariz.) 1918E- 1240. 4. Foreclosure Sale of several parcels to- gether. On the foreclosure of a pledge of shares of stock of a smelting company and a railroad company, it is not error to sell the shares of the two companies together where the court finds it will be for the best interests of all parties. Martin v. Bankers' Trust Co. (Ariz.) 1918E-1240. POLICE OFFICERS. Conductor and motorman as policeman, see CABBIEBS OF PASSENGERS, 4. Validity and construction of act pensioning police officers, see PENSIONS, 2, 4. POWERS. Effect of war on irrevocable power of attor- ney, see ALIENS, 4. Power of appointment as enlarging estate of life tenant, see LIFE ESTATES, 1. Power of attorney, see AGENCY, 5. Power of sale in mortgage, see MOBTGAGES, 11-14. 1. Specific performance of contract to exer- cise power by will. Equity will not specifi- cally enforce a contract to exercise a power of appointment by will in favor of one who advanced money to the donee of the power, since the power to appoint by will implies that it shall be the will of the donee of the power at the time of his death, and such power cannot be executed by grant under Real Property Law (Consol. Laws, c. 50) 167, 168, and to permit it to be exercised by specific performance of a contract would be, in effect, to permit its exercise by grant. Farmers' Loan, etc. Co. v. Mortimer (N. Y.) 1918E-1159. (Annotated) 2. Equity will not declare a trust on prop- erty appointed under a will in favor of one to whom the donee of the power contracted to appoint, where the property involved was not the property of the donee, but the prop- erty of another over which he had only the power to appoint by will. Farmer Loan, etc. v. Mortimer (X. Y.) 1918E-1159. (Annotated) POLICE POWER. See CONSTITUTIONAL LAW, 3-9. Validity of statute prohibiting assignment of claim to nonresident, see ASSIGNMENTS, PRACTICE. See ACTIONS AND PROCEEDINGS; DISMISSAL AND NONSUIT; PLEADING; TRIAL. POLITICAL PARTY. Definition, see WORDS AND PHRASES, 8. POOL HALLS. Validity of statute providing for local op- tion as to question of prohibition of pool halls, see LOCAL OPTION, 1, 2. POSSESSION. PRACTICE OF LAW. (Validity of contract contemplating practice of law by corporation, see CONTRACTS, 16. PREMISE. Construction of habendum clause with pre- mises, see DEEDS, 5. PREMIUMS. Payment, see LIFE INSURANCE, 1-3. See ADVERSE POSSESSION. POSTNUPTIAL AGREEMENT. See HUSBAND AND WIFE, 12. POWER COMPANIES. See ELECTRICITY. Ann. Cas. Dig. 1918C-E. 12. PRESCRIPTION. Creation of rights in division wall by pre- scription, see ADJOINING LANDOWNERS, 3. PRESCRIPTIONS. Furnishing prescription for intoxicating liq- uors, see INTOXICATING LIQUORS, 4-7, 14. 178 ANN. CAS. DIGEST (1018C-1918E). PRESENCE. In proceeding under Torrena Act, see RECORD- IXG ACTS, 7. Right of accused to be present at trial, see Service of process against foreign corpora- CBIMINAL LAW, 4-11. tions, see CORPORATIONS, 51-53. PRESUMPTIONS. See EVIDENCE, 36-38 and cross-references there given. Validity of statute creating presumption of fact, see EVIDENCE, 44. PRICE FIXING. Control of price of patented article on re- sale as monopoly, see MONOPOLIES, 3. PRIEST. Failure to administer communion as defama- tion of character, see RELIGIOUS SO- CIETIES, 4. Liability for issuance of letter forbidding communicants to read or subscribe to certain newspapers, see RELIGIOUS SO- CIETIES, 6. PRIMARY ELECTIONS. See ELECTIONS, 5-13. PRINCIPAL AND AGENT. See AGENCY. PRINCIPAL AND SURETY. See SURETYSHIP. PRIVILEGED COMMUNICATIONS. See WITNESSES, 3-6. As affecting liability for libel or slander, see LIBEL AND SLANDER, 10-28. PRIVILEGES AND IMMUNITIES. See CONSTITUTIONAL LAW, 11, 12. PROBATE. See WILLS, 17-26. PROCEEDINGS. See ACTIONS AND PROCEEDINGS. PROFESSION. See ATTORNEYS; LICENSES; PHYSICIANS AND SURGEONS. PROFITS. As element of loss under insurance contract, see FIRE INSURANCE, 19. PROMISSORY NOTES. See BILLS AND NOTES. PROPONENT. Evidence as to conduct, see WILLS, 20. PRO RATA. Meaning of term, see WORDS AND PHRASES, 9. PROSECUTING ATTORNEYS. Criticism by prosecuting attorney of attor- ney for defendant as privileged, see LIBEL AND SLANDER, 12, 13. District attorney as party to divorce suit, see DIVORCE. 3-5. PROSPECTIVE RIGHT. Enforcement by mandamus, see MANDAMUS, 2. PROVINCE OF COURT AND JURY. See QUESTIONS OF LAW AND FACT. PROXIMATE CAUSE. Negligent act of plaintiff as contributing to injury, see NEGLIGENCE, 4. Of act of accused as cause of death of de- ceased, see HOMICIDE. 14. Of damage to goods in carrier's hands by freezing, see CARRIERS OF GOODS, 5. Of injury, see NEGLIGENCE, 2, 3. PROCESS. In garnishment proceedings, see GARNISH- MENT, 2. PROXY. Defined, see CORPORATIONS, 39. PUBLIC ACCOMMODATIONPUBLIC LAXDS. PUBLIC ACCOMMODATION. Statute forbidding denial of rights, see CIVIL RIGHTS, 1, 2. PUBLIC ASSEMBLY HALL. Liability of city for injuries to person in municipal assembly hall, see MUNICIPAL CORPORATIONS, 22-27. PUBLICATION. Of libel or slander, see LIBEL AND SLANDER, 3. PUBLIC HIGHWAYS. See STREETS AXD HIGHWAYS. PUBLIC IMPROVEMENTS. Assessments for, see TAXATION, 44-51. Liens for working on public improvement con- tracts, see MECHANICS' LIENS, 1, 3, 14, 15. PUBLIC LANDS. 1. Grant by State, 179. 2. Land Department, 179. 3. Grants in Aid of Railroads, 179. 4. Transfer of Rights, 179. 5. Cancellation of Deeds: a. In General, 180. b. Actions : (1) Jurisdiction. 180. (2) ladies, 180. (3) Parties, 180. (4) Evidence, LSI. (5) Relief Granted, 181. Purchaser of fraudulent patent as bona fide purchaser, see VENDOR AND PURCHASER, 17. 1. Grant by State. 1. The state is thp source of title, and 9 patent issued under its authority, regular on its face, confers legal title. Hennessy v. Blair (Tex.) 1918C-474. 2. Wrongful procurement of patent. Where the officers of the state issued a pat- ent on a forged assignment of an unlocated land certificate, their erroneous action is, at most, only voidable. Hennessy v. Blair (Tex.) 1918C-474. 3. Ratification of deed secured by fraud. It should not be assumed that the legislature has ratified sales of school lands secured by gross fraud unless the language of the stat- ute leads unmistakably to that conclusion. State v. Hyde (Ore.) 1018E-688. 4. Sess. Laws 1899, p. 164, 27, directed the state land board, which had been author- ized to lend the school funds ou far mort- gages, to foreclose all mortgages which were not adequate security and bid in the lands at its true cash value, but through mistake did not empower the board to sell land so purchased. Laws 1901, p. 304, authorized the board to bid in lands sold under fore- closure of mortgage given to secure a loan from the school fund, and provided that such lands should be held for sale and sold as op- portunity might offer on the best terms ob- tainable, and that all sales of land thereto- fore made by the board were thereby ratified and confirmed, and whenever the full pur- chase price should have been paid title in fee simple should vest in the purchasers and their successors and assigns. It is held, that this was passed to correct the error in the Act of 1899 and related to purchases made by the state on the foreclosure of school fund mortgages and authorized sales thereof and confirmed sales theretofore made, and had no reference to sales of the state's grant lands and was not intended to confirm fraud- ulent purchases of such grant lands. State v. Hyde (Ore.) 1918E-688. 2. Land Department. 5. Effect of decision. As the administra- tion of the forest reserve act is vested in the land department, the question whether a re- linquishment of lands incorporated in a for- est reserve, the owner selecting other lands in lieu thereof, is sufficiently in compliance with the rules to be accepted is solely for the land department. State v. Hyde (Ore.) 1918E-688. (Annotated) 6. Under the regulations of the interior department, a selector of unsurveyed public lands acquires an inchoate right thereto which on survey and compliance with the rules entitles him to a patent; hence the title to base lands included in a forest reserve and relinquished in lieu of other lands is not subject to attack on the theory that there could be no relinquishment because the lieu lands were unsurveyed. State v. Hyde (Ore.) 1918E-688. (Annotated) 3. Grants in Aid of Railroads. 7. Withdrawal from settlement Lands previously claimed. A railroad company which, prior to the enactment of the Act of June 25. 1910 (36 St. L. 847; 8 Fed. St. Ann. 2d ed. 657), providing for the withdrawal of certain lands from settlement, filed a list of indemnity lands claimed by it, is entitled to the lands so claimed despite a subsequent order withdrawing them from settlement. Central Pac. R. Co. v. Lane (D. C.) 1918C- 1002. (Annotated) 4. Transfer of Rights. 8. Unlocated certificate. An unlocated certificate for public lands may be assigned. Hennessy v. Blair (Tex.) 1918C-474. 9. Relinquishment of timber lands. Un- der Act Cong. June 4, 1897, c. 2, 30 Stat. 3ff (9 Fed St. Ann. [2d ed.] 588) providing that in cases in which a tract of land covered by 180 ANN. CAS. DIGEST (1918C-1918E). an unperfected bona fide claim or by a patent is included within the limits of a public for- est reservation the settler or owner may re- linquish the tract to the government and se- lect in lieu thereof a tract of vacant land open to settlement, title to the base lands passes to the United States on the accept- ance of the deed and the approval of the se- lection by the general land office, and,, though deeds have been executed and filed, title does not pass until the transfer is accepted by that office. State v. Hyde (Ore.) 1918E-688. (Annotated) 5. Cancellation of Deeds. a. In General. 10. What constitutes fraud. Where, by means of applications in the names of dum- my applicants and by false affidavits, thous- ands of acres of school lands were acquired from the state by nonresidents, contrary to the policy of the state to sell only to res- idents who purchase for their own benefit and in quantities not exceeding 320 acres to each person, there is such fraud as justified the cancellation of the deeds, though the state received the price at which the lands were held for sale, especially as the mar- ket value of the lands subsequently in creased and the state land board raised the selling price; it being probable that, if sales had been made only to qualified purchasers in amounts not exceeding 320 acres to each purchaser, the bulk of the lands would have remained available for sale at the higher prices. State v. Hyde (Ore.) 1918E-688. 11. Land relinquished to government. Act Cong. March 3, 1905, c. 1495, 33 Stat. 1264, repealing Act Cong. June 4. 1897, c. 2, 30 Stat. 36 (9 Fed. St. Ann. [2d ed.] 588) pro- viding in cases where a tract of land covered by an imperfect bona fide claim or by a patent is included within the limits of a pub- lic forest reservation, the settler or owner may relinquish it to the government and se- lect in lieu thereof a tract of vacant public land open to settlement, but providing that the selections heretofore made in lieu of lands relinquished may be perfected as though the act had not been passed, does not, where title to base land relinquished in lieu of other lands to be selected from the public domain was acquired from the state by fraud, vest such title in the United States, so as to preclude an attack on the title to base land by the state, where the United States has not accepted the conveyance of the base lands. State v. Hyde (Ore.) 191 8E- 688. (Annotated) b. Actions. (1) Jurisdiction. 12. Effect of uncompleted transfer to United States. Where deeds to school lands within a national forest reserve were ob- tained by fraud and the grantees or their successors executed deeds to the United States and filed them as the basis of lien land selections, but the deeds were not ac- cepted by the land office, the pendency in such office of proceedings on charges against the validity of the selections of lieu lands does not prevent an action to cancel the deeds from the state, as, the United States having acquired no interest in the lands, the general land office has no control over them ; its jurisdiction being confined to the public domain. State v. Hyde (Ore.) 1918E-688. (2) Laches. 13. While it is a suspicious circumstance that 146 applications should be made within a few months to purchase state lands in a forest reserve and that deeds should issue shortly afterwards to a handful of nonres- idents transferring many thousands of acres of such lands, where these matters apparent- ly passed unnoticed by the state officials, laches is not imputable to the state in its failure to act for the cancellation of the deeds for fraud in the inception of the fraud, as notice must be more than would excite the suspicion of a cautious and wary person. State v. Hyde (Ore.) 1918E-688. 14. A delay of fifteen years from 1898 to 1913 in bringing suit to set aside deeds to school lands based on fraudluent applications by dummy applicants is held not to be such laches as barred the suit, where the fraud was not discovered until 1905 and the facts were not fully known until 1908, at which time the position of innocent defendants had become fixed, and the condition and value of the lands did not change appreciably and where the marshaling of the facts involved a vast amount of investigation and painstak- ing labor and the charges reflected on the in- tegrity of a number of citizens of the state necessitating careful investigation before making such charges and taking action, es- pecially where in spite of the delay the ev- idence of the fraud was clear and the fraud could not have been disproved. State v. Hyde (Ore.) 1918E-688. (3) Parties. 15. United States. Where deeds executed by grantees of school lands or their succes- sors to the United States and filed as a basis for lieu land selections have never been ac- cepted by the United States and it has never been determined by the general land office that the grantors have title or that the deeds are effectual to pass title, the United States has no interest in the lands and is not a necessary party to a suit by the state to cancel the deeds from the state for fraud. State v. Hyde (Ore.) 1918E-688. 16. Where school lands within a national forest reserve were purchased from the state in the name of dummy applicants, who im- mediately assigned their contracts to the party for whose benefit the applications were made in violation of the statute con- templating that the purchase shall be for the benefit of the applicant, and after the ex- ecution of s deeds the grantees or their suc- cessors executed deeds to the United States PUBLIC LIBRARY PUBLIC OFFICERS. 181 as a basis for lieu land selections, and suck deeds were accepted by the proper officers of the United States, the deeds from the state cannot be canceled because of the fraud in- ducing their execution without the presence of the United States as a party, though the United States has co-operated with the state in marshaling the evidence of the fraud and instituted adverse proceedings agaiast the corresponding selections on the public do- main. State v. Hyde (Ore.) 1918E-690. 17. That the United States cannot be sued without its consent does not authorize the court to pass a decree canceling the deeds which it cannot enforce. State v. Hyde (Ore.) 1918E-690. 18. Purchasers of lien lands who have no title. In a suit to cancel deeds to school lands within a forest reserve which have been subsequently offered to the United States as a basis for lieu land selections, but which have not been accepted by the United States, it is immaterial whether pur- chasers of the land selected in lieu thereof were bona tide purchasers, as their title to the selected lands is dependent on the title of the United States to the base lands and the United States never acquired title to the base lands. State v. Hyde (Ore.) 191E-688. (4) Evidence. 19. Sufficiency of evidence of fraud. In a suit to cancel deeds to school lands pur- chased from the state on applications of dummy applicants, the evidence is held to show that a party who financed the pur- chases and took deeds to secure money ad- vanced by him was a party to the conspiracy and was not an innocent purchaser. State v. Hyde (Ore.) 1918E-688. 19 a. Where the grantors of the United States have conveyed the selected lands and have executed to the purchasers powers of attorney authorizing the selection in the names of the grantors of lieu lands and the Bale of the selected lands, and the powers of attorney have been exercised and land se- lected and conveyed to parties who were in possession, such parties, in protection of their titles to the selected lands, are entitled to claim that the United States was the owner of the base lands, and as a corrollary to that claim to urge that the controversy could not be determined in the absence of the United States as a party. State v. Hyde (Ore.) 1918E-688. 20. In a suit to cancel deeds to school lands, the evidence is held to be sufficient to establish a conspiracy to obtain such lands in fraud of the public policy of the state by procuring a large number of applications from dummy applicants, who immediately assigned their contracts, and to show that a defendant who thereby acquired deeds to thousands of acres of land was a party to the conspiracy and the author of it. State v. Hyde (Ore.) 1918E-688. (5) Relief Granted. 21. Accounting for profits. The state, fluing to cancel deeds to school lands relin- quished to the United States as the basis of lieu land selections for fraud in procuring such deeds, cannot recover the lands and also have an accounting from the grantees for money secured by them through the at- tempted exchange of the lands. State v. Hyde (Ore.) 1918E-688. PUBLIC LIBRARY. AB necessary municipal building for which land may be condemned, see EMINENT DOMAIN, 5. PUBLIC OFFICERS. 1. In General, 181. 2 Qualifications and Eligibility, 182. 3. Compensation and Expenses: a. In General, 182. b. Extra Duties Imposed by Statute, 182. c. Validity of Agreement to Share Fees, 182. 4. Accounting, 182. 5. Official Bonds, 183.' Conditional signing by surety on bond of public officer as defense to action on bond, see SURETYSHIP, 4-7. Withdrawal of candidacy, see ELECTIONS, 11-13. 1. In General. 1. Members of committee as public offi- cers. Members of a city council, appointed a joint special committee to expend the ap- propriation for and to arrange for a Fourth of July celebration, were in no sense ''public officers," so as to be exempt from liability for personal injury resulting from the set- ting off of fireworks, as "public officers" are those officers who are required by law to be elected or appointed, and whose duties are prescribed by law, such as municipal officers acting, not by virtue of authority conferred by ordinance or resolution, but by resolu- tion of acts of the legislature Sroka v. Hal- liday (R. I.) 1918D-961. (Annotated) 2. Qualifications and Eligibility. 2. Statute limiting consecutive service. A statutory provision (Acts 1915, p. 52), amending an act (Acts 1911, p. 289) creat- ing a commission form of municipal govern- ment and regulating the selection and elec- tion of commissioners, . . ." which pro- no person shall be eligible to the office of president or member of the board of commis- sioners who shall, either by election or ap- pointment, have held the office of president or member of the board of commissioners for three consecutive years within the four years immediately preceding the date of the election, is not unconstitutional, as exceed- ing the power of the legislature to fix the qualifications for the office of city commis- 182 ANN. CAS. DIGEST (1918C-1918E). sioner; the matter of being a candidate be- ing merely a privilege and not a right. State v. feasley (Ala.) 1918E-347. (Annotated) 3. A statutory provision amending an act creating a' commission form of municipal government and regulating the selection and election of commissioners, which provides that no person shall be eligible to the office of city commissioner who shall have held such office for three consecutive years within the four years preceding the date of election, does not violate Const. 22, nor Const. U. S. art 1, 10, relating to ex post facto laws; an "ex post facto law" being one which im- ' poses a punishment for an act which was not punishable when it was committed, and im- poses additional punishment, or changes the rules of evidence by which less or different testimony is sufficient to convict. State v. Teasley (Ala.) 1918E-347. (Annotated) 4. "An act to amend an act to create a commission form of municipal government, . . . and to regulate the selection and elec- tion of commissioneres, . . ." which pro- vides that no person shall be eligible to the office of commissioner who has held such of- fice for three consecutive years within the four years immediately preceding the elec- tion, does not violate Const. 45, requiring that each law shall contain one subject, which shall be clearly expressed in its title. State v. Teasley (Ala.) 1918E-347. (Annotated) 5. A statutory provision amending an act to create a commission form of municipal government and to* regulate the selection and election of commissioners, which provides that no person shall be eligible to the office of commissioners who shall have held such office for three consecutive years within the four years immediately preceding the date of the election, is not invalid, as being retroac- tive, when applied to a candidate for office who had held the office of city commissioner for two and one-half years before the stat- ute was passed. State v. Teasley (Ala.) 1918E-347. (Annotated) 6. Statute prescribing political belief as "recommendatory" only. Under Pub. Loc. Laws 1913, c. 441, 7, providing that "one each of the two members of the several township highway commissions to be elected under this act shall, so far as feasible and practicable, come from each of the two lead- ing political parties of such township," the three relators who received a majority vote and duly qualified as township highway com- missioners were entitled to their offices, al- though all were Republicans; the statute be- ing merely recommendatory to the voters. State v. Sanders (N. D.) 1918-1033. (Annotated) 7. The feasibility and practicability of electing persons of different political parties is a matter for the voters, and their judg- ment is final and not reviewable by the courts. State v. Sanders (N. C.) 1918D-1033. (Annotated) 3. Compensation and Expenses. a. In General. 8. Allowance of mileage. A county com- missioner in attending board meetings is en- titled to compute mileage for the distance "necessarily traveled" by the usual traveled route from the place of residence to the coun- ty seat. Marshall County v. Rokke (Minn.) 1918D-932. (Annotated) b. Extra Duties Imposed by Statute. 9. A public officer is bound to perform the duties of his office for the compensation fixed by law. This is true as to additional duties imposed upon the office by the legislature after he enters upon his term, provided such duties are germane to the office. Board of County Com'rs v. Bruce (Okla.) 1918E-1060. (Annotated) 10. The salary of county clerks being def- initely fixed by chapter 19, sec. 1, Sess. Laws 1905, and the duties imposed upon the office of county clerk under chapter 19, Sess. Laws 1909, being additional, the fees authorized to be retained under section 9, art. 4, of said act could not be retained by the clerks as addi- tional compensation, for to do so would vi- olate section 19, art. 23, of the constitution, prohibiting the increase of the emoluments of an office during its term. Board of Coun- ty Com'rs v. Bruce (Okla.) 1918E-1060. (Annotated) 11. Chapter 19, sec. 1, Sess. Laws 1905, put in force in the state of Oklahoma by sec- tion 18 of the schedule of the constitution, fixed the salary of the county clerks of the various counties of the state. The authority conferred upon county clerks to issue hunt- ing licenses, under the act of the legislature approved March 8, 1909 (chapter 19, Sess. Laws 1909), are additional duties conferred upon the office of county clerk, and are ger- mane to such office; and the fees authorized to be retained by clerks for issuing hunting licenses under section 9, art. 4, of such act should be accounted for by them, and they are not entitled to retain the same as addi- tional compensation for such services. Board of County Com'rs v. Bruce (Okla.) 1918E- 1060. (Annotated) c. Validity of Agreement to Share Fees. 12. An agreement by one candidate to withdraw his candidacy just before election, when too late to fill the vacancy, in consid- eration of his opponent agreeing to appoint him deputy, and to divide his fees, a fund to secure performance of the agreement being deposited, is void as against public policy, and the parties are equally at fault. Martin v. Francis (Ky.) 1918E-289. (Annotated) 4. Accounting. 13. Who may enforce. Where the county board fixes the salaries of county officers and the statute requires such officers to pay the county treasurer all fees received by them above the amounts so fixed, the officers are PUBLIC POLICY QUIETING TITLE. 183 to account with the county board, and legal title is in the county which may maintain suit, the distribution of separate funds be- ing a matter of accounting. Lake County v. Westerfield (111.) 1918E-102. 14. Liability for interest on funds. Under Const, art. 10, 10, providing that the coun- ty board shall fix the compensation of all county officers with the amount of necessary expenses, and all fees or allowances received , in excess of this compensation shall be paid into the county treasury, and Fees and Sal- aries Act (Kurd's Rev. St. 1913, c. 53) 52, containing similar provisions, and Rev. St. 1874, c. 36, 4, providing that the county treasurer shall have custody of funds author- ized by law to be paid to him, and various sections of the Revenue Act (Hurd's Rev. St. 1913, c. 120), prescribing the duties of the county treasurer, as ex officio collector, and creating an absolute liability of county treas- urers for money in their hands so as to make them insurers of the safety of such money, a county treasurer is not a bailee in the sense of having possession of money for temporary purposes with a qualified property in it, nor a debtor beyond the sense that he owes an obligation to pay over the money, but is a mere custodian of public funds, for the safe- ty of which he gives his official bond, and although lie is not required to make the money in his hands earn interest, if the funds do earn interest, he is not entitled to retain it, but must account for it as a pre- requisite or emolument acquired by his offi- cial position. Lake County v. Westerfield (111.) 1918E-102. (Annotated) 5. Official Bonds. 15. Successive Bonds. Where an officer gives two or more successive bonds, liability for maladministration thereunder falls only upon the sureties on the bond or bonds in force when the default occurred. A renewal bond does not cover any defaults occurring before its execution, unless by its terms the liability is so extended. Raleigh County Ct. v. Cottle (W. Va.) 1918D-510. 16. Acts outside official duty. Under Rev. Codes, 5682, providing that a surety can- not be held beyond the express terms of his contract, the sureties on a county assessor's bond conditioned that he would "faithfully perform all official duties now required of him by law, and ... all ... duties . . . required by any law to be enacted subsequent to the execution of this bond," are not liable for moneys improperly paid and delivered to the assessor as compensa- tion for the collection by him of certain city taxes, where the collection of such taxes is not imposed on him by law, but reposed else- where under sections 2684. 3356, 3357. Butte v. Bennetts ( Mont.) 1918C-1019. (Annotated) PUBLIC SERVICE COMMISSIONS. Power of public service commission to com- pel building of side track, see RAIL- ROADS, 4. Regulation of rates of carriers, see CABBIERS, 1-6. PUBLIC UTILITIES. Power of municipality to operate public utilities, see MUNICIPAL CORPORATIONS, 11, 12. PUNITIVE DAMAGES. In action for libel, see LIBEL AND SLANDER, 67. PUPILS. Compelling admission to school without fee, see SCHOOLS, 1. QUANTUM MERUIT. Necessity of quantum meruit count in ac- tion of assumpsit, see ASSUMPSIT, 6. Recovery in action on contract, see CON- TRACTS, 35. QUESTIONS OF LAW AND FACT. See AGENCY, 6; ADMISSIONS AND DECLARA- TIONS, 6; AUTOMOBILES, 19; BENEFICIAL ASSOCIATIONS, 18; BROKERS, 9-13; CAR- RIERS OF PASSENGERS, 12, 15-18; CON- VERSION, 4; DEATH BY WRONGFUL ACT, 18, 19; ELECTRICITY, 12-17; ELEVATORS, 6; FERRIES, 6; FIRE INSURANCE, 9; FIX- TURES, 8; FOOD, 4; HOMICIDE, 12; IN- DEPENDENT CONTRACTORS, 7, 8; LABOR COMBINATIONS, 14; LIBEL AND SLANDER, 55, 56; LICENSE, 2; LIFE INSURANCE, 16, 17; MASTER AND SERVANT, 36, 37; NEG- LIGENCE, 9, 10; RAILROADS, 20; RELEASE AND DISCHARGE, 9; TELEGRAPHS AND TELEPHONES, 6-8, 13; THEATERS AND AMUSEMENTS, 11, 12; WATERS AND WATERCOURSES, 4; WATERWORKS AND WATER COMPANIES, 11; WEAPONS, 4, 5. Credibility of witnesses, see WITNESSES, 13. Evidence as to matter of law, see EVIDENCE, 8. Examination of questions of fact on appeal, see APPEAL AND ERROR, 43-57. In proceedings under Torrens Act, see RE- "CORDING ACTS, 8. Submission of question of law to jury as error, see APPEAL AND ERROR, 85, 86. Weight of testimony of party, see TRIAL, 8, 9. PUBLIC POLICY. Validity of foreign contract to arbitrate, see CONFLICT OF LAWS, 1. QUIETING TITLE. Injunction against execution sale which would cloud title, see INJUNCTIONS, 5-7. 184: ANN. CAS. DIGEST (1918C-1918E). 1. Variance in description. A decree quiet- ing title will not be disturbed because of a slight variance in the description therein and in the description of the instruments on which plaintiff relied, especially where the record does not show that the party com- plaining was prejudiced thereby. Wolfen- berger v. Hubbard (Ind.) 1918C-81. QUO WARRANTO. 1. By whom brought. Informations in the nature of a quo warranto under our statute are of three classes: (1) By the attorney general without leave of the court at his own discretion; (2) in the name of the attorney general by leave of the court at the instance of any person desiring to prosecute; (3) un- der section 4 of the act where the question is of usurpation or intrusion into a munic- ipal office or franchise, by a citizen who be- lieves himself lawfully entitled to such office or franchise. Bonynge v. Frank (N. J.) 1918D-211. 2. Joinder of relators. In quo warranto against .a railroad, though public interests are involved, the mere fact that a private corporation and private citizens joined as relators are interested in the suit or have employed counsel to assist in the prosecu- tion thereof is no defense. People v. Toledo, etc. R. Co. (111.) 1918D-224. (Annotated) 3. Joinder of parties defendant. An in- formation in the nature of quo warranto will lie jointly against several members of a board of trustees of a cemetery company. Bonynge v. Frank (N. J.) 1918D-211. (Annotated) 4. An information in the nature of quo warranto to test by what right a railroad held a right of way which had been trans- ferred to it by another railroad after expira- tion of the time when the original holder could have built upon such right of way is not defective in joining the original holder and the transferee of the right of way. Peo- ple v. Toledo, etc. R. Co. (111.) 1918D-224. (Annotated) 5. Determination of title to office. Even in the case of information in the nature of a quo warranto as to a municipal office or franchise, the title of the relator could not be put in issue prior to 1895. Under the act of that year (Comp. St. p. 4214) it is not incumbent on the relator to put his own title in issue; but the defendant is permitted to do so, and the court will then determine which claimant if either is entitled to the office. Manahan v. Watts, 64 N. J. L. 465, explained. Bonynge v. Frank (N. J.) 1918D- 211. 6. In case of an information in the nature of quo warranto under section 1 of the act in the name of the attorney general by leave of the court, any person desiring to prosecute may be relator. He need not himself claim the office; but leave of the court will not be granted, unless the relator is acting in good faith in vindication of his own rights or those of the public or a portion of the public. Bonynge v. Frank (N. J.) 1918D-211. 7. Judgment on demurrer. A demurrer to an information in the nature of a quo war- ranto admits the charge of the information that the demurrant intrudes into and unlaw- fully holds and exercises the office, but where the information itself shows that a demurrant is entitled to the office, the aver- ments are inconsistent and the demurrant is entitled to judgment. Bonynge v. Frank (N. J.) 1918D-211. 8. Where an information in the nature of quo warranto shows that a cemetery com-" pany had fifteen trustees; that the* terms of live only had expired and the terms of ten had not expired; that nevertheless an attempt had been made to elect nine as successors of the fifteen, a judgment of ous- ter follows a demurrer to the information as to any defendant who is brought into court, and not shown by the information it- aelf to be entitled to the office. Bonynge v. Frank (N. J.) 1918D-211. 9. Extent of relief granted. In quo war- ranto to test by what right a railroad held a right of way which it had forfeited by failure to operate its road within ten years of the grant, the judgment in favor of the state should merely oust the defendant rail- road. People v. Toledo, etc. R. Co. (111.) 1918D-224. RACE. Reference by prosecuting attorney to race of accused, see AEGUMENT AND CONDUCT OF COUNSEL, 2. Statute penalizing denial of accommodation in public place on account of race, see CIVIL RIGHTS, 1, 2. RAILROAD COMMISSIONS. Power of public service commission to com- pel building of side track, see RAIL- ROADS, 4. Regulation of carriers, see CAEEIEES, 1-6. RAILROAD RELIEF ASSOCIATION. See MASTEB AND SEBVANT, 27. RAILROADS. 1. Charter and Corporate Bonds, 185. 2. Railroad Commissions, 185. 3. Rights, Powers and Duties: a. Crossings, 185. b. Use of Bridge of Another Company, 185. 4. Liability for Injuries to Persons: a. Persons at Crossings: (1) Warning of Approach of Trains, 186. (2) Contributory Xegligence, 186. (3) Actions, 187. b. Injury from Fire, 187. RAILROADS. 185 Agreement to maintain depot as covenant running with land, see DEEDS, 10. Effect of withdrawal from settlement of lands previously claimed by railroad as indemnity lands, see PUBLIC LANDS, 3. Liability- of owner of automobile for injury at crossing to person riding in automo- biles, see AUTOMOBILES, 16, 17. Liability of receiver of railroad for tort com- mitted by railroad before appointment, see RECETVEBS, 1. Power of eminent domain, see EMINENT DO- MAIN, 3, 6. Quo warranto against railroad, see Quo WABBANTO, 2, 49. Regulation of carriers, see CABBIEBS, 1-6. Special damage to railroad from sale of in- toxicants as entitling it to sue for in- junction to test validity of license, see INTOXICATING LIQUOBS, 1. Specific performance of contract to maintain depot, see SPECIFIC PEBFOBMANCE, 5-13. Taxation, see TAXATION, 7-13. 1. Charter and Corporate Bonds. 1. Forfeiture of charter. Hurd's Rev. St. 1915-1016, c. 114, 26, providing for forfei- ture of a railroad charter if the road is not in operation within ten years after the grant, cannot be defeated by a transfer of the right of way by the first holder before expiration of the ten-year period to another railroad. People v. Toledo, etc. R. Co. (111.) 1918D-224. 2. It is contrary to. public policy to permit a railway company to control a located right of way, without completing its railroad, for a longer time than the statutory period. People v. Toledo, etc. R. Co. (111.) 1918D-224. 3. Defeat of forfeiture by transfer. lurd's Rev. St. 1915-1916, c. 114, 19, cl. 2, empowering railroad corporations to take and hold voluntary grants of real estate and to convey the same when no longer required for the uses of the railroad, does not author- ize a railroad which has failed to construct its line and operate it within ten years from the grant to transfer its right of way in whole or in material part and thereby defeat Hurd's Rev. St. 1915-1916, c. 114, 26, pro- viding for forfeiture after ten years. People v. Toledo, etc. R. Co. (111.) 1918D-224. 2. Railroad Commissions. 4. Power to compel building of sidetrack. The state under its police power may em- power a public service commission to re- quire a railroad company to provide such sidetrack facilities to industries adjacent to its tracks as shall be found to be necessary and reasonable under all the circumstances, and may apportion the necessary expense therefor between the company and the in- dustry in such manner as shall be found to be reasonable. Ochs v. Chicago, etc. R. Co. (Minn.) 1918E-337. ' (Annotated) 3. Rights, Powers and Duties, a. Crossings. 5. Width of street at crossing. At the crossing of its track by a street fifty feet wide used by from seventy-five to ninety per cent of the pedestrians in a town of from 1,000 to 1,500 inhabitants, the railway is required to leave more than the sixteen or twenty foot crossing used for teams, and to construct a footway across its track from the end of the sidewalk running beside the street to the end of the sidewalk on the opposite side. Chicago, etc. R. Co. v. Red- ding (Ark.) 1918D-183. (Annotated) b. Use of Bridge of Another Company. 6. A railroad authorized by its articles of incorporation to operate between Spokane and Portland is entitled to use of a bridge across the Willamette river at Portland, to reach the industrial district of the city on the other side of the river from the road'a passenger terminals, under the ordinance of the Port of Portland authorizing the bridge, which provided that it should be open to the use of any railroad other than the one which built it on payment of a reasonable compensation. Oregon -Washington R. etc. Co. v. Spokane, etc. R, Co. (Ore.) 1918C- 991. 7. A railroad having its passenger termi- nals on the west bank of a river and desirous to use a bridge across such river to reach an industrial district on the east bank, is a railroad company within the common user clause of the ordinance of the city authoriz- ing another railroad to build the bridge, al- though the bridge and ita approaches would not be used by the road's passenger trains or for the carriage of mail and express mat- ter, but only to switch freight traffic, since payment to the company which built the bridge of adequate compensation was a con- dition under the ordinance to the exercise of the right of common user, so that the pro- ceeding for common user was analogous to a condemnation proceeding, while in such a proceeding a limited easement may be con- demned. Oregon- Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 8. Compensation. Where a railroad built a bridge inider an ordinance providing that it might be used by other roads on pay- .ment of compensation, and, after a second road began to use it with the first, a third 1 road desired its use for freight traffic only, such third road is not chargeable with a third of the interest on the investment and a third of the depreciation charge, but is chargeable with a substantial part of such charges, such as twenty per cent of the in- terest on the road's investment in the bridge and its approaches, eliminating so much of the investment as was chargeable to the upper deck of the bridge, used for vehicle and foot traffic only, also such proportion of the first road's expenses for maintenance and operation of the railway portion of the bridge and taxes thereon as the third road' * A.\.\. CAS. DIGEST i L918C 1018E). traffic bears to the entire traffic on tin- bridge, and also a like proportion on an an- nual depreciation charge; interest being figured at the legal rate. Oregon- Washing- ton R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 9. Adequacy of compensation. A railroad owning a bridge which it is required to per- mit other railroads to use is entitled to a fair share of the charge for operation and maintenance of the bridge and of the inter- ,est on the investment, regardless of functua- tions of railway traffic, so that the fact that the award of arbitrators fixed an adequate charge for each car hauled across the bridge does not show that the compensation award- ed by them was adequate. Oregon-Washing- ton R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 10. Evidence. On proceedings to deter- mine the compensation to be paid by one railroad for the use of a bridge constructed by another under a city ordinance requiring it to permit the user on payment of com- pensation, contracts fixing the terms under which different railway companies used bridges of others which failed to show a uni- form practice in that respect are immaterial. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 11. In a suit to set aside an award of arbi- trators of compensation to be paid by one railroad for the use of a .bridge constructed by another, exhibits showing the number of cars switched by the owner of the bridge for the other railroad during certain periods, which included cars switched to a point across the river at which the using railroad had no terminal and covered the period when it was acquiring its main terminal across the river, and which did not include freight carried by the using railroad in less than carload lots and team freight which could not be switched, are of no value in showing the volume of the traffic of the us- ing railroad across the bridge from which compensation for the use could be deter- mined. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.') 1918C-991. 12. Provision in decree for modification. In suit to set aside an award of arbitrators determining the compensation to which a railroad which built a bridge was entitled for its use by another road under a common user clause of the city ordinance authorizing the building, the decree setting aside the award and correcting its errors should give the road which built the bridge leave to ap- ply for a modification of the compensation, in case a road not a party to the suit ceased to use it, and in case one or more additional railroads should secure the right to use it the other road should have a similar right to apply for modification. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 13. Presumptions in favor of award. The presumptions are in favor of an award by the railroad commission sitting as a board of arbitration to determine what compensa- tion a railroad which built a bridge is enti- tled to for the common use of such bridge by another road under a common user clause of the city authorizing the building of the bridge. Oregon -Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 4. Liability for Injuries to Persons, a. Persons at Crossing. (1) Warning of Approach of Trains. 14. Where it is shown that a railroad com- pany had intersected a roadway long used by the public, and constructed therein a cut without providing warning signals of any sort, its acts in so doing may amount to negligence, even though the roadway is not a legally established highway or street. Chambers v. Minneapolis, etc. R. Co. (N. D.) 1918C-954. 15. Excessive speed and failure to give signals. Engine men in charge of a loco- motive attached to a passenger train, who cut off the steam and apply the air one-quar- ter of a mile before reaching a street crossing in a small city, and who suppose that an electric warning bell stationed at the cross- ing is ringing, are not guilty of wantonness, although they fail to ring the engine bell or sound the whistle for the crossing, and al- though they go through the city at the rate of forty-five miles per hour. Jacobs v. At- chison, etc. R. Co. (Kan.) 1918D-384. (2) Contributory Negligence. 16. Care required of chauffeur. The fact that the chauffeur at the time of his death is carrying a passenger for hire, whereby he is charged with the very highest degree of care, does not charge him with such degree of care in going on the track as between him- self and the defendant railway in such ac- tion for his death, since the duty to exer- cise the highest care obtains only as be- tween the chauffeur and his passenger, and does not alter the standard of care owing by the chauffeur as between himself and de- fendant which is simply that of exercisinir reasonable care for his own safety. South- ern R. Co. v. Vaughan (Va.) 1918D-842. 17. Failure to see headlight. In an ac- tion to recover for the death of an automo- bile driver struck on a highway cross inu l>\ defendant's train after dark, the fact that defendant's train was equipped with a power- ful headlight, which brightly illuminated everything upon which it played, is not suili- cient to convict decedent of contributory negligence in going upon the track, where the train's approach to the track was through a deep cut and around a curve which would confine the light to the walls of the cut until the train emerged elase to decedent. Southern R. Co. v. Vaughan (Va.) 1918D- 842. 18. Automatic bell not ringing. It is such negligence as will prevent a recovery for in- juries sustained for a driver of an automo- bile to attempt to cross a railroad track at a grade crossing without looking or listen- ing for the approach of a train, although an 1 1 A PI-: RECORDING ACTS. is: electric warning bell is maintained at the crossing and the bell is not ringing. Jacobs v. Atchison, etc. R. Co. (Kan.) 1918D-384. (Annotated) (3) Actions. 19. Instruction as to maintenance of cross- ing. An instruction that a railway was bound to use reasonable care in the con- struction and maintenance of its cut in a reasonably safe condition for travel upon the road which it crosses, and that otherwise it is liable for injury sustained thereby, in view of the entire instruction, is not mis- leading. Chambers v. Minneapolis etc. R. Co. (X. D.) 1918C-0.54. 20. Question for jury View obscured. The defendant railroad company, in con- structing its railroad, intersected a trail or roadway which had long been used by the public, constructed therein a deep cut, and failed to guard the same. It is held that the question of negligence was one of fact for the jury. Chambers v. Minneapolis, etc. R. Co. (X. D.) 1918C-954. b. Injury from Fire. 21. Applicability of statute. Laws 1912, c. 151, making a railroad corporation liable -to every person whose property is injured "by fires communicated by locomotive engine, and giving the corporation an insurable interest in the property along the route, is limited to liability for property destroyed, and does not authorize a recovery for per- sonal injuries or death resulting from a fire started by engine without proof of negli- gence. Yazoo, etc. R. Co. v. Washington (Miss.) 1918E-813.- (Annotated) 22. Evidence. In an action against a rail- road company for the death of plaintiff's mother and the burning of her house in which she was at the time, evidence is held not to show that the railroad negligently operated the engine which caused the fire at a speed of more than six miles per hour in an incorporated town, contrary to Code 1906, 4043. Yazoo. etc. R. Co. v. Wash- ington (Miss.) 1918E-813. RAPE. 1. Sufficiency of indictment. To aver that a man forcibly and against the will of a female did carnally know her. is the same as to aver that he carnally knew her forcibly and against her will. There is no statute or rule of law prescribing the order in which these collocations of words shall precede and follow one another in an indictment or al- legation. State v. Heyer (X. J.) 1918D- 284. 2. In an indictment or allegation for rape it is not necessary to charge that the offense was committed forcibly and against the will of the woman. It is sufficient if it charges that the defendant feloniously did ravish and carnally know her. State v. Heyer (X. J.) 1918D-2S4. 3. An allegation for rape (indictment be- ing waived) examined and held, construing its several phrases together and reading them in connection with one another, that, in fact, it charges the defendant with carnal knowl- edge of a certain woman forcibly and against her will. State v. Heyer (X. J.) 1918D-284. RATES. See BEXEFICIAL ASSOCIATIONS, 6-11. Regulation, see CARRIERS, 1-6; INSURANCE, 9-15. REAL ESTATE BROKERS. See BROKERS, 1-12. REAL PARTY IN INTEREST. In action against carriers, see CARRIERS OF GOODS, 15. RECALL. Validity of statute providing for recall of city commissioner, see MUNICIPAL COR- PORATIONS, 7. RECEIVERS. 1. Liability for tort prior to appointment. The receiver of a railroad was not liable for damages from the road's tort committed before his appointment, despite his being given authority by the appointing order of the court to defend suits against the road. Bush v. Stephens (Ark.) 1918E-259. (Annotated) RECEIVING PROPERTY. Receiving property of soldier, see ARMY AND XAVY, 8, 9. RECIPROCAL. Demurrage, see CARRIERS, 7; STATUTES, 8. RECITALS. In deeds, see DEEDS, 13, 14. Sufficiency of recital in title of statute, see STATUTES, 7. RECORDING ACTS. Effect of failure to record chattel mortgage, see CHATTEL MORTGAGES, 1. 188 AXX. CAS. DIGEST (1918C-1918E). Failure to record deed before suit commenced as subjecting property to lien of lis pendens, see Lis PENDENS, 6, 7. Necessity for registration of assignment of proceeds of building contract, see AS- SIGNMENTS, 8, 9. 1. Instruments entitled to record Option contract. An option contract for the pur- chase of land is a contract for an interest in land, and, when properly acknowledged, is recordable, and, when recorded, gives no- tice to a subsequent purchaser of the ven- dor. Fields v. Vizard Invest. Co. (Ky.) 1918D-336. 2. Torrens act Validity. Laws 1903, p. 311 (Torrens System), concerning registra- tion of land titles, sections 83, 84, and 85 of which provide for payment upoon registra- tion of each title of a percentage to the assessed value of the property registered for the purpose of providing a fund out of which shall be paid damages recovered in an action authorized for omission, mistake, etc., of the registrar, examiner, or clerk of court, etc., is not unconstitutional on the ground that it engages the state in the business of insuring titles. White v. Ainsworth (Colo.) 1918E-179. (Annotated) 3. Laws 1903, p. 311, concerning registra- tion of titles to land, which provides for personal service on residents and service by publication on nonresidents and unknown claimants, and allows time for filing answers, trial, etc., is not unconstitutional on the ground that it constitutes the taking of property without just compesation. White v. Ainsworth (Colo.) 1918E-179. (Annotated) 4. Laws 1903, p. 311, concerning registra- tion of title to land, section 49 of which pro- vides for reference to the court of all dis- puted questions, is not violative of Const, art. 3, vesting the powers of government in three distinct departments, on the ground that it confers judicial powers on the regis- trar, since, although he may exercise some judgment, the registration is the act of the court. White v. Ainsworth (Colo.) 1918E- 179. (Annotated) 5. Laws 1903, p. 311, concerning the reg- istration of titles to land, is not violative of Constr. art. 2, 25, or the fourteenth amend- ment to the Federal Constitution, on the ground that it takes property without due process of law, because section 28 only al- lows 90 days in which judgment may be vocated by a person not actually served with notice, since the time within which a judg- ment may be vacated and a person allowed to plead is a matter of procedure which the state, through its lawmaking body, has a right to fix as it sees fit, and the constitu- tional provision pertaining to due process of law is applicable to rights, not remedies. White v. Ainsworth (Colo.) 1918E-179. (Annotated) 6. Jurisdiction over property of minors. By its express provisions Laws 1903, p. 311, concerning registration of title to land, was intended and does allow titles to be quieted where the alleged interests of minors is in- volved. White v. Ainsworth (Colo.) 1918E- 179. 7. Summons. Where plaintiffs' ancestor died before service of notice by publication- upon her by name in a suit under Laws 1903, p. 311, to register title to land, the summons served upon plaintiffs under the designation of "all other persons or parties unknown," etc., constitutes due process of law, and is sufficient to give the court jurisdiction under the registration act. White v. Ainsworth (Colo.) 1918E-179. (Annotated) 8. Conclusiveness of finding. In an action to cancel deeds and a decree confirming title and ordering registration of land under Laws 1903, p. 311, the question upon conflicting evidence whether the first grantee under the registration act was an innocent purchaser for value relying upon a registered title is for the trial court, and its finding cannot be disturbed on appeal. White v. Ainsworth (Colo.) 1918E-179. RECORDS. Certification of transcript of evidence taken before referee, see REFEREES, 1, 2. Consideration of record in another case by appellate court, see APPEAL AND ERROR, 40. On appeal, see APPEAL AND ERROR, lft-23. REFEREES. Authority of master in action to determine rights of infant in option contract, see INFANTS, 6. 1. Termination of authority of referee. A referee, under section 24, c. 57. Sess. Laws 1907, may certify to the transcribed notes of the stenographer, so that the transcript of evidence may become a part of the record without any bill of exceptions; but he has no power to make up a transcript of the evidence and certify to the same after he has filed his report, because he is then func- tus officio. Baca v. Unknown Heirs of Jacin- to Palaez (N. M.) 1918E-612. (Annotated) 2. When a referee has performed the duty imposed by the order of his appointment he is functus officio, and his acts are no more than the acts of a private individual. When he has filed his report and it has become a record of the court, his power over it is at an end and his relation to the case has ceased. Baca v. Unknown Heirs of Jacinto Palaez (N. M.) 1918C-612. (Annotated) REFERENDUM. See INITIATIVE AND REFERENDUM. REFORMATION OF INSTRUMENTS. See RESCISSION, CANCELLATION AND REFOR- MATION. REFRESHING MEMORY RELEVANCY. 189 REFRESHING MEMORY. See WITNESSES, 9. REGULATION OF RATES. Of beneficial societies, see BENEFICIAL ASSO- CIATIONS, 10, 11. Of carriers, see CARRIERS. 1-5. Validity of statute creating insurance board and providing for control of rates, see INSURANCE, 8-14. REHEARING. Rehearing in appellate court, see APPEAL AND ERROB, 125, 126. RELATIONSHIP. Services between relations, see PARENT AND CHILD, 3. RELATORS. Joinder in mandamus, see MANDAMUS, 3. Joinder in quo \varranto. see Qco WARRANTO, 2. RELEASE AND DISCHARGE. See BILLS AND XOTES. 1. Effect of seal. A seal on a release im- ports a consideration, and protects the in- strument from attack for lack of considera- tion. Dwy v. Connecticut Co. (Conn.)1918D- 270. 2. Release of joint tortfeasor. A release of one joint tortfeasor releases all, on the theory that the injured person has but a single claim and one cause of action, and can obtain but one satisfaction of the claim. Ridseway v. Sayre Electric Co. (Pa.) 1918D- 1. 3. An unqualified release or discharge of one or more of several joint tortfeasors given for a consideration is a release of all, and, as this rule rests on the fact that the re- leasor is entitled to only one satisfaction, and that an unqualified release or discharge implies the receipt of such satisfaction, the release need not be a technical release under seal; it being the acceptance of consideration in satisfaction for the injury received, and not the form in which it is evidenced, that is controlling. Dwy v. Connecticul Co. (Conn.) 1918D-270. (Annotated) 4. What constitutes release of tortfeasor. Tn an action against an electric company for damages for the death of the plaintiffs husband, a lineman in the employ of a telephone company, killed by coming in con- tract with the electric company's defectively insulated wire strung on the same pole and close to the telephone company's line, the plaintiff's release of her rights against the telephone company on the receipt of certain insurance money from an insurance fund payable independently of negligence, did not preclude her action of tort against the electric company, although the release in terms covered any claim which plaintiff might have against the telephone company. Ridgeway v. Sayre Electric Co. (Pa.) 1918D- 1. 5. Reservation of right to sue other joint tortfeasors. A formal release under seal of one of several joint tortfeasors which ex- pressly reserved to the releasor the right to sue any other parties does not prevent the releasor from suing such other parties, as, though the seal furnished a conclusive pre- sumption of full consideration, it furnished a presumption only of full consideration for the surrender or discharge which it by its terms made, and, having expressly nega- tived the receipt of full satisfaction by re- serving the right of action against other parties, there is no presumption of full satis- faction for the wrong, and a sealed instru- ment, like any other instrument, must be construed according to its manifest intent. Dwy v. Connecticut Co. (Conn.) 1918D-270. (Annotated) 6. Covenant not to sue joint tortfeasor. A covenant not to sue one of several joint tortfeasors does not operate as a release of the others from liability, and cannot be pleaded in bar of an action against them. Dwy v. Connecticut Co. (Conn.) 1918D-270. (Annotated) 7. Partial satisfaction. Full satisfaction for an injury by one of several joint tort- feasors bars a further recovery, and a part satisfaction inures to the benefit of all and operates 'as a payment pro tanto. Dwy v. Connecticut Co. (Conn.) 1918D-270. (Annotated) 8. Parol evidence. A release under seal cannot be modified by parol, or by a writing not under seal, or by evidence of an unex- pressed intent. Dwy v. Connecticut Co. (Conn.) 1918D-270. 9. Misrepresentation in securing signature. Although the insured kept for three weeks a draft to which was attached a release from liability, and then cashed it, it cannot be said that as a matter of law a representa- tion, in securing his signature thereon, that it was a receipt, and not a release, was not a false, material representation. Rocci v. Massachusetts Accident Co. (Mass.) 19180- 529. 10. Return of consideration. Where the insured received money, which he alleged was a part payment, and the insurer alleged was full payment, for a loss, he was not obliged, in suing on the policy, to make tender of the amount received, but it might be treated as a payment on account. Rocci v. Massachu- setts' Accident Co. (Mass.) 19180-529. See EVIDENCE. 190 ANN. CAS. -DIGEST (1918C-1018E). RELIEF DEPARTMENT. See MASTER AND SERVANT, 27-34. RELIGIOUS INSTITUTIONS. Permitting graduating exercises to be held in church as violating constitutional in- hibition against sectarian instruction in. pubic schools, see SCHOOLS, 5, 6. 1. Consolidation. Two or more church societies of the Methodist Episcopal Church of America may be joined together with a single pastor as a circuit or otherwise and have one quarterly conference, but that fact does not change the title of the church prop- erty or affect the financial interests of the separate societies. Buhrnson v. Stoner (111.) 1918I>-1054. (Annotated) 2. Sale of property. Under the law of the Methodist Episcopal Church of America pro- viding for sale of church property abandoned or no longer used for the purposes originally designed, where a church was abandoned from about 1901 except for occasional uses of the church as a convenient place for some reli- gious service and the church society was not recognized by the annual conference and performed none of the functions of a religi- ous society, sale of the church property is not voidable by former trustees of the dis- continued church society, although the pro- ceeds, which by the church law were required to be turned over to the annual conference, were appropriated for another purpose. Buhrnson v. Stoner (111.) 1918D-1054. (Annotated) 3. Judicial review of descipline of member. The religious rights of a church member as a communicant, even if she had appealed to the proper church authority and a deci- sion adverse to her been given, are not en- forceable in the civil courts. Carter v. Pap- ineau (Mass.) 1918C-620. (Annotated) 4. For a minister to merely pass by with- out comment and not administer communion to a church member is not actionable as de- famation of character. Carter v. Papineau (Mass.) 1918A-620. (Annotated) 5. Control of the use of the btiilding for religious services being, under the laws of the church, in the minister, his temporary ex- clusion of a member therefrom, by having her told that she could not enter, in which she acquiesced, is not reviewable in a civil court. Carter v. Papineau (Mass.) 1918E- 620. (Annotated) 6. Liability for injurious utterances. De- fendants, bishops of Roman Catholic Church, issued a pastoral letter to all the churches in their dioceses where Polish Catholics wor- nhipped wherein the communicants were for- bidden to read or subscribe to plaintiff's Pol- ish newspaper on pain of sin and sacrilege. The letter did not require the breach of any contract with plaintiff or the withholding of any advertising patronage, and the only re- sult of the refusal of communicants to obey its mandate was to lose their standing as members of the church. It is held that the circulation of such letter gave rise to no cause of action in favor of plaintiff for loss sustained thereby, since the interdiction was within the scope of the church's discipline, in the enforcement of which any pecuniary loss to the plaintiff was damnum absque injuria. Kuryer Pub. Co. v. Messmer (Wis.) 1918C- 778.' (Annotated) REMAINDERS AND REVERSIONS. See DOWER ; LIFE ESTATES; TRUSTS AND TRUSTEES; WILLS. 1. Executory devises not favored. An es- tate is never allowed to inure by way of ex- ecutory devise, if it can take effect as a re- mainder. Pearson v. Easterling (S. C.) 1918D-980. 2. Vested or contingent Gift over to "Heirs." Under a will devising to testator's daughter certain lands, to be free from her husband's debts or contracts "during the term of her natural life, and at her death that the lands descend to the heirs of her body to each an equal share, the children of any deceased's child representing the par- ent," each of the children of the daughter take a vested remainder, subject to be di- vested by his dying before the death of the life tenant, leaving a child, who, in such event, would take by substitution in place of the deceased parent; the limitation to such child of a deceased parent being an alternative remainder, and not an executory devise. Pearson v. Easterling (S. C.) 1918D-980. (Annotated) 3. Acceleration. The principle of accelera- tion in the vesting of a remainder, because of the premature termination of the pre- ceding life estate, rests upon testamentary intention, and is applied only when it pro- motes that intention. Scotten v. Moore, (Del.) 1918C-409. REMAND. By apellate court, see APPEAL AND ERROR, 104, 105. By appellate court on rehearing, see APPEAL AND ERROR, 126. Issues on trial after appeal, see APPEAL AND ERROR, 309. REMITTITUR. Where damages excessive, see DAMAGES, 5, 6. REMOVAL OF CLOUD. See QUIETING TITLE. RENT. Sec LANDLORD AND TENANT. REOPENING CASE RESCISSION, CANCELLATION, ETC. 191 REOPENING CASE. See TBIAL, 4. REPAIRS. Duty of life tenant as to repairs, see LIFE ESTATES, 19. REPLY. See PLEADING, 15. REPRESENTATIONS. Effect of representations by insurer, see IN- SURANCE, 21. Misrepresentation as ground for rescission of contract for purchase of land, see VENDOR AND PURCHASER, 4-6. Of insurance agents, see INSURANCE, 1-4. Of life insurance company as part of con- tract, see LIFE INSURANCE, 4-6. REPRESENTATIVE DEFENDANTS. See PARTIES TO ACTIONS, 1, 2. REPUTATION. Proof of good reputation to corroborate wit- ness, see WITNESSES, 16. REQUESTS TO CHARGE. See INSTRUCTIONS, 8, 9, 11-14. RESCISSION, CANCELLATION AND REFORMATION. Cancellation of fire insurance policy, see FIRE INSURANCE, 15-17. Grounds for cancellation of automobile sales agency contract, see AGENCY, 1-3. Liability of insurance agent to insurer for failure to cancel policy, see INSURANCE, 5-7. Of contract for purchase of land, see VENDOR AND PURCHASER, 4-7. Reformation of deed as against bona fide pur- chaser, see VENDOR AND PURCHASER, 18. Rescission of contract by parties, see CON- TRACTS, 21-22. Rescission of contract of sale of goods by act of parties, see SALES, 2, 3, 7. Revoking conditional assent to modification of lease, see LANDLORD AND TENANT, 5. Right to revoke instrument creating trust, see TRUSTS AND TRUSTEES, 40. Setting aside judicial sale, see JUDICIAL SALES, 4-6. Suit to cancel grant of public lands by state, see PUBLIC LANDS, 10-21. Suit to set aside deed on ground of undue influence deed creating trust, see TRUSTS AND TRUSTEES, 39. Suit to set aside tax title, see TAXATION, 43. 1. Grounds. Equity has jurisdiction to re- form written instruments in but two well- defined cases: (1) Where there is a mutual mistake, that is, where there has been a meeting of minds, an agreement actually entered into, but the instrument in its written form does not express what was really intended by the parties thereto; and (2) Avhere there has been a mistake of one party, accompanied by fraud or other in- equitable conduct of the remaining parties. Cleveland v. Bateman (N. Mex.) 1918E-1011. 2. Necessity of mutuality of mistake. To justify the reformation of a contract on the ground of mistake in drafting it, the alleged mistake must be proved by clear and satisfactory evidence, and must have been nmtual and common to both parties. Robertson v. Smith (Mich.) 1918D-145. 3. Mistake of law. A "mistake of la ,-- " happens when a party having full knowledge of the facts, comes to an erroneous conclu- sion as to their legal effect. It is a mistaken opinion or inference arising from an im- perfect or incorrect exercise of the judg- ment upon facts as they really are. Palm- er v. Cully (Okla.) 1918E-375. 4. "A mere mistake of law, not accom- panied with other circumstances demanding equitable relief, constitutes no grounds for rescission, cancellation, or reformation of a deed to lands based upon such mistake" following Campbell v. Newman, 51 Okla. 121,. 151 Pac. 602. Palmer v. Cully (Okla.) 1918E-375. 5. Effect of retention of premises by grant- or. Evidence that the grantor remained in possession of the land, paid the taxes in his own name, and paid no rent, in the absence of fraud or imdue influence, does not justify setting the deed aside. Campbell v. Sigmon (N. C.) 1918C-40. 6. Reformation of void instrument. A. court of equity will not reform a void in- strument. Held, that the instrument which is sought to be reformed in this suit is not void. Cleveland v. Bateman (N. Mex.) 1918E-1011. 7. Where plaintff for more than a month after learning that an automobile purchased by him was not in running order, as war- ranted by the vendor, makes no tender or offer to return the automobile, other than to express a willingness or a proposal to return it, he cannot recover as on a rescission of the contract. Collins v. Skillings (Mass.) 1918D- 424. (Annotated) 8. Condition's precedent. Where relief by way of reformation is incidental to the main purpose of a suit, it is not necessary to al- lege a demand to correct a mistake and a refusal thereof. Cleveland v. Bateman (X. Mex.) 1918E-1011. 9. Sufficiency of complaint. (a) In a suit for reformation, the complaint must make it appear that complainant is pursuing his . 102 AKN". CAS. DIGEST (1918C-1918E ). remedy in good time after discovery of the injury; otherwise, the same is demurrable. (b) Where a complaint is silent as to the time of discovery of a mistake, it must be taken to have been known to all parties in- terested from the time the instrument was made. (c) An objection to the introduction of any evidence, made at the beginning of the trial, on the ground that the complaint does not state a cause of action, is in the nature of a demurrer ore tenus. (d) A complaint and reply are considered together in determining a demurrer ore tenus directed to the complaint, where the reply alleges matters omitted by, and which should have been stated in the complaint, because the irregularity of pleading improper matters in the reply is waived by accepting it and in refusing to move to strike it out, or other- wise attacking it. Cleveland v. Bateman (N. M.) 1918E-1011. 10. The tenor of the instrument which the parties seek to have decreed by the court, in substitution of the agreement as reduced to writing, must appear upon the face of the complaint. Cleveland v. Bateman (N. Mex.) 1918E-1011. 11. Parties Grantee in undelivered deed. In a suit to cancel deeds to school lands for which the grantees or their successors have executed deeds to the United States as a basis for lieu land selections, an allegation that the United States has and still does re- fuse to accept the deeds of certain of the defendants imports that there had been no delivery of the deeds, and, though it appears that the deeds have been recorded, demurrers on the ground that the United States is a necessary party defendant are properly over- ruled, as a grantee under a deed acquires no rights in the absence of a delivery. State v. Hyde (Ore.) 1918E-688. 12. Evidence. Evidence examined and held insufficient to prove mutual mistake or war- rant the reformation of deeds on that ground. Robertson v. Smith (Mich.) 1918D-145. RESTRAINT OF TRADE. See MONOPOLIES. RESULTING TRUST. See TEUSTS AND TRUSTEES, 1-13. REVENUE. See TAXATION. REVERSIBLE ERROR. See APPEAL AND EBBOE. REVERSIONS. See REMAINDERS AND REVERSIONS. REVOCATION. Of conditional assent to modification of lease, see LANDLORD AND TENANT, 5. Of instrument creating trust, see TBUSTS AND TRUSTEES, 40. Of wills, see WILLS, 11-16. RIGHT TO FOLLOW OCCUPATION. See CONSTITUTIONAL LAW, 15. RIGHT OF WAY. Taxation, see TAXATION, 9. ROADWAY. Taxation, see TAXATION, 8. RES GESTAE. Res gestae evidence, see ADMISSIONS AND DEC- LARATIONS, 16-20. ROBBERY. Liability of railroad for robbery of passen- ger, see CABRIEBS OF PASSENGERS, 10. RES IFSA LOQUITUR. Application of doctrine in action against carrier of passengers, see CARRIERS OP PASSENGERS, 7, 8. Application of doctrine in action against li- censee for destruction of property by fire, see LICENSE, 2. Harmless error in charging doctrine, see INSTRUCTIONS, 10. RULE OF PROPERTY. Decision establishing rule of property aa precedent, see STARE DECISIS, 7. RULES. Of carrier, see CAEBIERS OF PASSENGERS, 3, 4, 13. RES JUDICATA. See JUDGMENTS. 10-17. Matters concluded by judgment of dismissal of amended complaint, see PLEADING, 22. RULES OF COURT. See COURTS, 3, 4. Judicial notice, see EVIDENCE, 3. SABBATH SCHOOLS. 193 SABBATH. See SUNDAYS AND HOLIDAYS. SAFETY DEPOSIT. Liability of lessor of safe deposit box, see BAILMENTS, 3-6. SALES. See WARRANTY. Action to rescind contract for purchase of automobile, see RESCISSION, CANCELLA- TION AND REFORMATION, 7. Judicial sale, see JUDICIAL SALES. Parol evidence to vary sale contract, see EVIDENCE, 29. Sales of realty, see VENDOR AND PURCHASER. 1. When title passes. Under uniform sales act (Code Pub. Civ. Laws, art. 83), 43, providing that, unless otherwise pro- vided goods remain at the seller's risk until property therein is transferred, and section 40, rule 5, providing that if a contract re- quires delivery by seller to buyer, or at a particular place or payment of freight or cost of transformation to buyer or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon, where a carload of fertilizer, shipped under a con- tract providing for delivery at the buyer's works, and that the buyer may return it if not of standard quality after a chemical analysis, is destroyed by fire while standing on the buyer's side track before he has had a reasonable opportunity to make the analy- sis, the absolute right conferred on the buyer, title does not pass until an opportunity for making the tests is afforded, and the loss is on the seller. Agri Mfo-. Co. v. Atlantic Fertilizer Co. (Md.) 1018D-396. (Annotated) 2. Duty on election to rescind. Under St. 1908, c. 237, known as the Uniform Sales Act 69, subd. 3, on rescission of a con- tract to enable the purchaser to recover the purchase price, the plaintiff must notify the defendant .within a reasonable time of his election to rescind, and must return or offer to return the property in substantially as good condition as when received by him. Collins v. Skillings (Mass.) 1918D-424. (Annotated) 3. The word "offer," as used in St. 1908. e. 237, 69, subd. 3, providing that the buyer to rescind a sale must offer within a reason- able time to return the goods, is synonymous with the word "tender." Collins v. Skill- ings (Mass.) 1918D-424. (Annotated) 4. Failure of seller to deliver. Under Uni- form Sales Act (Pub. Acts 1913, No. 100), where parties make a present sale of wool, the seller, when sued for failure to deliver, cannot stand on any right to retain the goods until payment is made of the entire stipulated price, where he has tendered de- livery of wool which includes more than the Ann. Cas. Dig. 1918C-E. 13. stipulated quantity of fine wool which the buyer has declined to accept and pay for at the full price, but has offered to take it and to pay a less price for the fine wool in excess of the stipulated quantity. Powers v. Dodg- son (Mich.) 1918D-422. (Annotated) 5. Evidence. In an action by the seller to determine who shall bear the loss of a shipment of fertilizer under a contract giv- ing the buyer the right to have an individual carload tested, evidence as to the quality of other shipments under the contract is properly excluded. Agri Mfg. Co. v. At- lantic Fertilizer Co. (Md.) 1918D-396. 6. Measure of damages. Where the seller of goods to which title has passed to the buyer refuses to deliver them and sells them to another, the measure of damages is the difference between what the buyer was to pay and the value of the goods when sold to another. Powers v. Dodgson (Mich.) 1918D-422. (Annotated) 7. Rescission of written contract by parol. A written contract for the sale of goods may be rescinded by a subsequent parol agree- ment though the latter agreement : is not independently enforceable because not in conformity with the sale of goods act. Mor- ris v. Barren (Eng.) 1918C-1197. (Annotated) 8. Conditional Sales Destruction of goods. Under Pub. Acts 1907, c. 212, 22, providing that where delivery of goods sold has been made to the buyer in pursuance of contract, and the property therein has been retained by the seller merely to secure performance of the contract, the goods are at the buyer's risk from the time of de- livery, a buyer who purchased a piano under a conditional sale contract, which contained an agreement by him to make certain pay- ments in instalments and to insure the piano for its full value, must pay the purchase price, notwithstanding the destruction of the piano by fire, not caused by his negli- gence, at a time when it was not insured. O'Neill-Adams Co. v. Eklund (Conn.) 1918D- 379. (Annotated) SALOONS. iSee INTOXICATING LIQUORS. SCHOOL LANDS. See PUBLIC LANDS. SCHOOLS. Joinder of relators in mandamus to compel admission of pupil to school without payment of fee, see MANDAMUS, 3. 1. Compelling admission of pupil without fee. In mandamus by parents against a school teacher and a board of education to compel the reception of the parents' chil- dren by a claimed public school without fee, it is immaterial whether the teacher, 194 ANX. CAS. DIGEST (1918C-1918E). in demanding the fee and excluding the chil- dren for nonpayment, is acting by author- ity of the board of education of the county, or the local board of the town, since the teacher's* duty to conduct the school ac- cording to law and the statutes can be enforced by mandamus whether one board or the other had the right to control the school. Hughes v. Outlaw (Ala.) 1918C-872. 2. Teaching of music. Under the provi- sions of section 7478 of the General Statutes of 1909, it is competent for a school district board to provide that other branches shall be taught than those specifically enumerated in the section, and in the discretion of the board they may provide for instruction in music by a qualified teacher. Epley v. Hall (Kan.) 1918D-151. (Annotated) 3. The uniform course of study prepared by the state board of education for the com- mon schools of the state for the year 1914, under the authority of chapter 272 of the Laws of 1913, authorizes the teaching of music in such schools. Epley v. Hall (Kan.) 1918D-151. (Annotated) 4. It is within the discretion of the school district boards to determine whether all sub- jects, including music, shall be taught by a single teacher or to provide that music shall be taught by another teacher, provided such other possesses the qualifications and auth- ority required by the school laws. Epley v. Hall (Kan.) 1918D-151. (Annotated) 5. Graduating exercise in church Infringe- ment of religious freedom. Where a school board permits parts of graduating exercises to be held in churches, but without religious services, and at some of the exercises allows clergymen to deliver nonsectarian prayers, it does not violate Const, art. 10, 3, prohibit- ing sectarian instruction in public schools. State v. District Board (Wis.) 1918C-584. (Annotated) 6. Where the school board holds parts of graduating exercises in churches, and allows various clergymen to deliver nonsectarian prayers and invocations at some of the ex- ercises, but no compensation is paid for the use of the churches, or for the prayers, par- ents of school children, though violently opposed to the churches in which the ex- ercises were held, are not compelled to sup- port any minister or visit places of worship, in violation of Const, art. 1, 18, declaring that the right of every man to worship God shall remain inviolate, and no man shall be compelled to attend, erect, or support any place of worship, or maintain any minister, for parents objecting need not attend such exercises. State v. District Board (Wis.) 1918C-584. (Annotated) SEALS'. Effect as importing consideration for release, see RELEASE AND DISCHARGE, 1, 5. SEDUCTION. 1. Offer of marriage as defense. Under Cr. Code 1912, 389, providing that any male above the age of sixteen years who by any means of deception and promise of mar- riage seduces any unmarried woman shall, upon conviction, be deemed guilty of mi:-- demeanor, and that, if the defendant in any action shall contract marriage with such woman, either before or after the conviction, further proceedings shall be stayed, an un- accepted offer of marriage does not come within the savings clause. State v. Whitaker (S. C.) 1918E-467. 2. False promise of marriage Under such section defendant's promise of marriage, by which he deceives a woman and thereby in- duces her to surrender her Anrtue, without intending to fulfil his promise, is punish- able. State v. Whitaker (S. C.) 1918E- 467. 3. Corroboration of prosecutrix. In a prosecution under such section, evidence is held to sufficiently corroborate the testi- mony of the prosecutrix, so that the jury might have reasonably inferred that defend- ant did not intend to marry her when he went away or to fulfil his promise to marry her when he thereby induced her to consent to intercourse. State v. Whitaker (S. C. ) 1918E-467. (Annotated) 4. Instructions. A charge that, without discussing the evidence, the presiding judge thought there was some evidence as to every ingredient of the crime, and that the child was some corroboration, and that there was some other corroboration, is not objection- able as a charge on the facts. State v. Whitaker (S. C.) 1918E-467. 5. Settlement of bastardy proceeding as bar. An action by the father of a minor daughter to recover damages for her seduc- tion is not barred by her bastardy proceed- ing against defendant under Code 190fi. c. 15, which was settled by the payment of $200 to her. Delancey v. Byrd (Miss.) 1918D-668. (Annotated) SEEDS. Warranty as to germinating power, see WAR- RANTY, 1-4. SCIENTER. SELECTIVE DRAFT ACT. Necessity of knowledge as to falsity of repre- See ABMY AND NAVY, 1-7. sentations, see FBATJD, 2. SCOPE OF EMPLOYMENT. Of chauffeur, see AUTOMOBILES, 6-11. SELF DEFENSE. Belf defense in trial for assault with intent to kill, see ASSAULT, 2. SELF-EXECUTIXG PROVISIONS SHOWS. 195 SELF-EXECUTING PROVISIONS. SEXUAL INTERCOURSE. Of constitution, see CONSTITUTIONAL LAW, g ee RAPE; SEDUCTION. Refusal as ground for annulment of mar- Of insurance policy, see INSURANCE, 48. riage, see MABBIAGE, 11-14. SHERIFFS AND CONSTABLES. See DECLARATIONS AND ADMISSIONS.. As to intent of insured in taking bichloride Allowance as costs of sheriff's fees for serv- ing notice of appeal, see APPEAL AND ERBOB, 121. Sheriff's sales, see JUDICIAL SALES, 1, 2. tablets, see LIFE INSURANCE, 14. SENTENCE AND PUNISHMENT. Excessiveness of sentence in prosecution for illegal sale of liquor, see INTOXICATING LJQUOBS, 20. SHERMAN ANTI-TRUST LAW. See MONOPOLIES. SEPARATE PROPERTY. Of wife, see HUSBAND AND WIFE, 8-12. SERVANT. See MASTER AND SERVANT. SET-OFF AND COUNTERCLAIM. Necessity of pleading set-off in action on ac- count, see ACCOUNTS, 2. Set-off of previous winnings in action to re- cover money lost at gaming, see GAMING, 7. 1. Counterclaim against compensation. In an action by an agent for compensation, loss alleged to have been sustained by the principal from the agent's unfaithful dis- charge of the contract on which he sues is a proper subject of counterclaim under Kirby's Dig. 6099, providing that a "counterclaim" must be a cause of action arising out of the contract or transaction set forth in the com- plaint as the foundation of plaintiff's claim, or connected with the subject of the action, whether such acts are considered as torts or breaches of contract duties. Neely v. Wil- more (Ark.) 1918D-77. (Annotated) SETTLED CASE. Necessity for settled case to review order dis- posing of motion for new trial, see AP- PEAL AND ERROR. 26. SETTLEMENT. Of decedent's estate, see EXECUTOBS A^D AD- MINISTRATORS. SHIPS AND SHIPPING. See CARRIERS OF GOODS. 1. Provision for arbitration. A provision in a charter party that all disputes should be settled by arbitration, etc., cannot be re- garded as providing for assessment of the amount of damages claimed, leaving the question of liability for the courts, and so is no bar to an action in court, even if it may support an action for 'breach of the agreement to arbitrate. Aktieselskabet Korn-Og, etc. v. Rederiaktiebolaget (U. S.) 1918E-491. 2. Where no arbitration had actually been begun and expenses incurred, only nominal damages can be recovered for a breach of a covenant in a charter party providing for arbitration of all disputes. Aktieselskabet Korn-Og, etc. v. Rederiaktiebolaget (U. S.) 1918E-491. 3. Provision for penalty. A clause in a charter party, "penalty for nonperformance of its agreement to be proven damages, not exceeding estimated amount of freight," is a provision for a penalty, and cannot be con- strued to limit the recovery of the char- terer for the owner's entire repudiation of the charter and refusal to enter on its per- formance. Aktieselskabet Korn-Og, etc. v. Rederiaktiebolaget (U. S.) 1918E-491. 4. In view of a provision of the charter party for arbitration of disputes before ref- erees, one to be selected by the captain, a clause in the charter party declaring that the penalty for nonperformance should not ex- ceed the estimated amount of freight, though accepted as a limitation of liability, cannot be deemed applicable to the case of an en- tire repudiation of the charter. Aktiesel- skabet Korn-Og, etc. v. Rederiaktiebolaget (U. S.) 1918E-491. SEVERABLE CONTRACT. See CONTRACTS, 24. SHOWS. See THEATERS AND AMUSEMENTS. 196 A XX. CAS. DIGEST (1918C-1918E). SIDEWALKS. SPECIAL ELECTIONS. Street as including sidewalk, see STREETS AND HIGHWAYS, 1. SIGNAL. Failure to give signal of approach of train, see RAILROADS, 15, 18. Requiring signal from driver of automobile, see AUTOMOBILES, 2. SILENCE. Admission by silence, see ADMISSIONS AND DECLARATIONS, 10-12. SLANDER. See LIBEL AND SLANDEB. SMALLPOX. Maintenance of pesthouse by city, see MU- NICIPAL CORPORATIONS, 19, 20. SOCIAL CLUB. As exempt from taxation, see TAXATION, 25, 26. SOLDIERS. See ARMY AND NAVY. Receiving property of soldier, see ARMY NAVY, 8, 9. SOLICITING BUSINESS. By attorney as misconduct, see ATTORNEYS, 19, 20. SPARE TIME WORK. Compensation to insured spare time worker, see MASTER AND SERVANT, 19-25. SPECIAL ASSESSMENT. See TAXATION, 44-51. Agreement to exempt from special assess- ment as covenant running with land, see DEEDS, 9. Apportionment as between life tenant and remainderman of assessment for public improvements, see LIFE ESTATES, 23-25. As incumbrance, see DEEDS, 11, 12. Payment from principal or income of trust estate of assessments for improvements, see TRUSTS AND TRUSTEES, 27. See ELECTIONS. SPECIAL LEGISLATION. See CONSTITUTIONAL LAW, 17. SPECIFIC PERFORMANCE. Of agreement to arbitrate, see ARBITRATION AND AWARD, ]. Of award of arbitrators, see ARBITRATION AND AWARD, 5, 14, 15. Of contract to exercise power by will, see POWERS, 1, 2. 1. Contract for exchange of land. A con- tract of exchange of real estate may be specifically enforced the same as one for ordinary sale, and the vendee may have a specific performance of that part of the con- tract which the vendor can perform, with compensation for that part which he cannot perform, the same as in ordinary cases of sales of real estate. Mundy v. Irwin (X. Mex.) 1918D-713. (Annotated) 2. Title not good of record. Although the grantor has a good title by reason of ad- verse possession, a contract of sale of such land cannot be specifically enforced unless good title is shown of record, because a purchaser does not have to take a title which will have to be proved by parol evidence. Cross v. Buskirk-Rutledge Lumber Co. (Tenn.) 1918D-983. 3. Slight deficiency in acreage. Where the the findings of the court show, at least in- ferentially, that the defendant bought by the tract, rather than the acre, he cannot defeat specific performance on account of deficiency in area from that mentioned in the contract of sale. Mundy v. Irwin (X. Mex.) 1918D-713. 4. Cure of uncertainty. Where a vendor puts his vendee into possession of real es- tate, an uncertainty of description in the contract of sale, which otherwise might pre- vent specific performance of the contract, is thereby cured. Mundy v. Irwin (X. Mex.) 1918D-713. 5. Contract of railroad to maintain depot. The contract or covenant of a railway com- pany with a land owner, in consideration of the grant of a right of way through his lands, and of land for depot purposes, to build and operate a depot on the grantor's land, not specifying the length of time, is not void per se, and may be specifically enforced so long as its performance by the railway -com- pany will not materially interfere with the rights and interests of the public to be served by such railway company; or it has not be- come otherwise unduly burdensome and in- equitable. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. (Annotated) 6. Specific performance of such contract will not be denied where no hardship or in- justice will result, and where an action for damages can give the grantor no adequate re- SPEED STATE BOARD OF EQUALIZATION. 197 lief. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. (Annotated) 7. In such a case the building and opera- tion of a depot on the land granted for a short time will not amount to full perform- ance of the grantee's covenant so long as the rights of the public to be served by the railway company have not intervened and continuance thereof has not become unjustly burdensome and inequitable to the railway company. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. 8. Nor is such a contract so indefinite and uncertain in its terms, and because of the continuity of the acts required in specific performance, extending as they necessarily do into the future, as to be unenforceable in equity. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. 9. But such contract or covenant will be enforced in a court of equity so long and so long only as it may be done consistently with the public interests and the duties and obli- gations of the railway company in respect thereto, and it has not become unduly bur- densome and oppressive to continue com- pliance therewith. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. (Annotated) 10. A subsequent deed between the same parties, correcting errors or enlarging boun- daries, made pursuant to the previous con- tract and deed, and referring thereto, but omitting the covenant, will not be construed as a release of the covenant, when it appears from the terms of the latter deed and from the subsequent acts and conduct of the par- ties, that such release was not intended. Harper v. Virginian R. Co. (W. Va.) 1918D- 1081. 11. In a suit for specific performance of such contract the burden is upon the railway company to show that it is no longer able to perform the covenant consistently with its duties to the public or that continuance thereof has become burdensome and oppres- sive, or otherwise inequitable. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. (Annotated) 12. In the case at bar no adequate defense was interposed, nor showing made entitling the defendant to relief from specific perform- ance of its covenant. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. (Annotated) 13. Where the decree of specific perform- ance in such case does not protect the public interests and the interest of the railway company in the future performance of its dutie^ and obligations to the public, it may on appeal be modified in th'at particular, and as so modified, affirmed. Harper v. Virginian R. Co. (W. Va.) 1918D-1081. SPEED. Evidence as to speed of train, see EVIDENCE, 10, 11. Excessive speed of train, see RAILROADS, 15. Regulation of speed of automobile, see AUTOMOBILES, 1. SPENDTHRIFT TRUST. See TRUSTS AND TRUSTEES, 14. As assets in hands of trustee of bankruptcy of beneficiary, see BANKRUPTCY, 1. Right of testator to create, see WILLS, 38. SPONTANEOUS UTTERANCES. Admissibility of spontaneous utterances, see ADMISSIONS AND DECLARATIONS, 18, 19. SPORTSMAN. Liability for accidental shooting, see WEAP- ONS, 1-5 SPRINKLING STREETS. As improvement which will support special assessment, see TAXATION, 45. SPUR TRACKS. Authority to construct, see FRANCHISES, 1; STREET RAILWAYS, 1, 2. Compelling removal, see STREET RAILWAYS, 3-5. STAKEHOLDER. Defined, see WORDS AND PHRASES, 10. Recovery from stakeholder of money deposit- ed by party to gambling contract, see GAMING, 4. STAMPS. Admissibility in prosecution for illegal sale of liquor of certified copy of internal revenue tax stamp, see INTOXICATING LIQUORS, 12. STARE DECISIS. Construction of federal statute by federal court as binding on state court, see COURTS, 5. Decision of Louisiana supreme court as prece- dent in court of appeals, see COURTS, 7. Decision of state court on question of general law as binding on federal court, see COURTS, 6. Dictum, see COURTS, 8. 1. A decision, establishing a rule of prop- erty which had been adhered to for several centuries, should not be disturbed by the courts. Purvis v. Shuman (111.) 1918D-1175. STATE BOARD OF EQUALIZATION. See TAXATION, 13, 16-20. 198 AXX. CAS. DIGEST (1U1SC 1U1SE). STATE BOARD OF INSURANCE. See INSURANCE, 8-15. STATES. See UNITED STATES. Application of doctrine of laches to state, see LACHES, 1. As party to divorce suit, see DIVORCE, 4, 17. Power to regulate interstate commerce, see INTERSTATE COMMERCE, 1-4. 1. Claim against state. Under section 109, Rev. Codes, no claim which is not provided for by law may be presented, audited, set off, or sued upon. Davis v. State (Ida.) 1918D-911. 2. Time for presentation. Section 109, Rev. Codes, limits the time within which a claim against the state may be presented to the state board of examiners to two years after the claim has accrued. After the expiration of this period the state board of examiners is without jurisdiction to con- sider the claim. Davis v. State (Ida.) 1918D-911. 3. Method of presentation. Under the pro- visions of section 10, art. 5, and section 18, art. .4, of our constitution the method pre- scribed for presenting and prosecuting to a conclusion the claims against the state is that in the first instance such claim must be presented in proper form to the state board of examiners; if rejected by said board, the supreme court has original jurisdiction of an action upon a proper claim and may in some cases give a recommendatory judgment, which in turn must be presented to the legislature to be bv it allowed or disallowed. Davis v. State (Ida.) 1918D-911. 4. The fact that under section 10, art. 5,' of the constitution the supreme court has origi- nal jurisdiction to hear claims against the state does not relieve claimants of the obliga- tion in the first instance of presenting their claims to the state board of examiners. Davis v. State (Ida.) 1918D-911. 5. Liability for negligence of servants. States cannot be sued without their consent, and when by constitutional or statutory pro- visions the state has permitted itself to be sued, such permission does not render the state liable for the careless or negligent acts of its servants, employees, or agents in the absence of any statute expressly fixing such liability upon a state. Davis v. State (Ida.) 1918D-911. (Annotated) 6. The word "claims," as sued in article 5. 10, of the constitution of this state, does not include any claim for damages caused by the careless or negligent acts of the state's servants, employees, or agents, and in the absence of any statute expressly making the state liable in such cases no such liability exists. Davis v. State (Ida.) 1918D-911. (Annotated) 7. Complaint of D. alleged that the state of Idaho owned and operated an irrigation system; that by reason of the negligence and carelessness of the state and its servants, em- ployees, and agents a ditch of said system broke, causing large quantities of water to flow upon, over and across D.'s land, result- ing in the alleged damage. Held not to state a cause of action as against the state, and not to disclose a state of facts giving rise to a "claim" within the meaning of article 5, 10, of the constitution. Davis v. State (Ida.) 1918D-911. (Annotated) 8. Held that, in the absence of a statute or constitutional provision making the state as a proprietor liable for the careless or negli- gent acts of its servants, employees, or agents, this court is without jurisdiction to grant any relief to plaintiff, under the facts alleged in plaintiff's complaint. Davis v. State (Ida.) 1918D-911. (Annotated) STATUTE OF FRAUDS. See FRAUDS, STATUTE or. STATUTE OF LIMITATIONS. See LIMITATION OF ACTIONS. STATUTES. 1. Constitutional Requirements as to Title and Subject, 198. 2. Enactment, 199. 3. Recitals, 199. 4. Effect of Partial Invalidity, 199. 5. Construction: a. Words Given Their Ordinary Mean- ing, 199. b. Relative Words, 199. c. Interpretation of Particular Words and Phrases, 200. d. Practical Construction, 200. e. Statutes in Pari Materia, 200. f. Curative Act, 200. 6. Amendment or Repeal, 200. See CONSTITUTIONAL LAW. Construction of statute of limitations, see LIMITATION OF ACTIONS, 1. Nullification of constitution, see CONSTITU- TIONAL LAW, 1. Title of act creating state insurance board, see INSURANCE, 14. Title of statute limiting consecutive service of public officers, see PUBLIC OFFICERS, 4. 1. Constitutional Requirements as to ^itle and Subject. 1. Montana "war defense act." Laws 1918 (Ex. Sess.) c. 21, entitled "An act appropriating the sum of" $500,000 to be "expended by the Montana council of defense in aiding and assisting the United States in carrying on and prosecuting the war now existing between the United States and the German and Austrian Empires," designating the purposes for which such appropriation may be expended, authorizing the state board of examiners to issue bonds or warrants in STATUTES. 199 excess of the constitutional limit of indebted- ness, to make rules and regulations governing the expenditure and make temporary loans, etc., contains only one subject, clearly ex- pressed in its title, as required by Const, art. 5, 23. State v. Stewart " (Mont.) 1918D-1101. 2. The act is not subject to the objection that it "appropriates money, but such ap- propriation is not made by a separate bill expressing one subject," as required by Const, art. 5, 33. State Y. Stewart '(Mont.) 1918D-1101. (Annotated) 3. Act relating to osteopathy. Const, art. 5, 23, requiring an act to contain but one subject, to be clearly expressed in its title, is not contravened by Laws 1907, c. 112, entitled an act to amend Laws 1905, c. 51, 8, 12, relating to the practice of osteo- pathy, and defining what evidence shall be deemed sufficient to constitute the practice of osteopathy, defining practice of osteopathy so as to include practice of chiropractic, by making it applicable to every branch of the healing art by use of the hands. State v. Hopkins (Mont.) 1918D-956. 2. Enactment. 4. Vote by ayes and nays. Laws 1915, p. 781, establishing a minimum wage for females, originated in the Senate where it was duly passed, and on transmission to the House, it was amended. When the 'bill was returned, the Senate concurred in the amendments, and ordered the bill engrossed, 1>ut the bill as engrossed omitted the word "mercantile before "establishments." The vote on the engrossed bill was taken by ayes and nays recorded in the journal, but the other votes adopting the amendment were not so taken. It is held that notwithstanding the error in the bill as engrossed, there was a compliance with Const, art. 5, 21, declaring that no bill shall become a law unless on its final passage the vote be taken by ayes and nays, for that section does not apply to a vote of the house which originated the bill when concurring in amendments of another house, and the Senate which originated the bill had already passed it in compliance with the section. State v. Crowe (Ark.) 1918D- 460. 5. Proof of enactment. A duly enrolled bill, although publicly signed by the pre- siding officer of each house, in the presence of the house over which he presides, while the same was in session and capable of doing business, and afterward approved by the governor and filed by him with the secretary of state, may be impeached on the ground that it has not received a con- stitutional majority of the members elect of both branches of the general assembly, 'and upon this question the legislative journals must provide the appropriate as well as the conclusive evidence. Ritzman v. Campbell (Ohio) 1918D-248. (Annotated) 6. Such enrolled bill, so authenticated, is conclusive upon the courts as to the contents thereof, since the attestation of the presiding officers of the general assembly is a solemn declaration of a co-ordinate branch of the state government that the bill as enrolled was duly enacted by the legislature. Ritz- man v. Campbell (Ohio) 1918D-248. (Annotated) 3. Recitals. 7. Title as sufficient recital. As the title is an essential part of a statute, the recital contained in the title of a special or local statute that due notice was given of the intention to apply for the passage of the act is contained in the act, within the re- quirement of article 50 of the constitution. Gretna v. Bailey (La.) 1918E-566. 4. Effect of Partial Invalidity. 8. Reciprocal demurrage act. The provi- sions of the Reciprocal Demurrage Act (sec- tions 6159-6167, Rev. St. 1913) relating to intrastate and interstate commerce are held to be separable, and the act, as applied to commerce within the state, ia held not to violate the Constitution of the United States or the constitution of the state of Nebras- ka. Sunderland Bros. Co. v. Missouri Pac. Ry. Co. (Neb.) 1918D-1120. -; (Annotated) 9. Invalid -parts inseparable. A statute that is in part unconstitutional and invalid must be decreed entirely invalid if its pro- visions are so interrelated that it cannot be presumed that the legislature would have enacted the provisions which do not violate the constitution independently of the pro- visions that are found to be unconstitutional or invalid. That doctrine is particularly ap- plicable to a referendum statute, because of the improbability that a majority of the electors who voted for its adoption or re- jection would have voted for the adoption of the provisions that do not violate the constitution, independently of the provisions subsequently decreed to be unconstitutional and invalid. Gretna v. Bailey (La.) 1918E- 566. 10. While, if only a portion or a proviso of the statute is unconstitutional, the re- mainder may be upheld, such rule does not apply where the portions of the statute are inseparably connected and dependent upon each other. Keith v. Lockhart (N. C.) 1918D-916. 5. Construction, a. Words Given Their Ordinary Meaning. 11. The presumption is that the words of a statute are used in their ordinary significa- tion. Corbin v. Baldwin (Conn.) 1918E-932. b. Relative Words. 12. It is a rule of construction that rela- tive words must ordinarily be referred to the next antecedent where the intent upon the whole instrument does not appear to the contrary. Traverse v. Blair Tp. (Mich.) 1918E-81. 13. It is a rule of construction that the last antecedent is the last word which can be made an antecedent without impairing the 200 A XX. CAS. DIGEST (1918C-191SE). meaning of the sentence. Traverse v. Blair Tp. (Mich.) 1918E-81. c. Interpretation of Particular Words and Phrases. 14. "As now established." In a statute forbidding the sale of intoxicants westerly of the fire limits of a city "as now estab- lished" the words "as now established" re- fer to the time of the enactment of the statute and not to the time of its taking effect. Carr v. Washington, etc. R. Co. (D. C.) 1918D-818. (Annotated) d. Practical Construction. 15. Cannot defeat purpose of people and legislature. Although where there is a doubt concerning the meaning of a statute, a long-continued practical construction will be considered in determining the construc- tion to be given it by the courts, where the constitutional and statutory provisions plainly provided that all fees and allow- ances received by county officers in excess of their lawful compensation should be paid into the county treasury, the fact that it is customary for public officers to- appropriate interest on public funds will have no weight, and cannot be permitted to defeat the pur- pose of the people in adopting the con- stitution or the legislature in enacting the law. Lake County v. Westerfield (111.) 1918E-102. e. Statutes in Pari Materia. 16. Pub. Loc. Laws 1915, c. 116, relating to elections to determine whether the stock law or the fence law should control, and chapter 505, relating to the taxes to be imposed should a fence be required, are in pari ma- ter ia, and must be construed together as one and the same law, especially as the later statute refers to the former. Keith v. Lock- hart (1918D-916. f. Curative Act. 17. A curative act or a conclusive evidence clause in a statute is effective to cure all defects resulting from a failure to comply with provisions which are merely directory of the mode of the exercise of a power. People v. Van Nuys Lighting Dist. (Cal.) 1918D- 255. 18. Defects and omissions which go to the jurisdiction of the board of county super- visors to act, and which make their action absolutely void, cannot be cured by subse- quent curative acts or conclusive evidence clauses. People v. Van Xuys Lighting Dist. (Cal.) 1918D-255. 19. The attempt to validate by a curative act, a tax levied by a pretended corporation having no legal authority over the property taxed, would, if given effect, be equivalent to the imposition of an obligation by statute without due process of law. People v. Van Nuys Lighting Dist. (Cal.) 1918D-255. 6. Amendment or Repeal. 20. Construction. In the construction of amendments to the constitution or to stat- utes, the body enacting the amendment will b presumed to have had in mind existing constitutional or statutory provisions and their judicial construction touching the sub- ject dealt with. American Woodenware Mfg. Co. v. Schorling (Ohio) 1918D-318. STIPULATION OF FACTS. Stipulation of facts on appeal, see APPEAL AND EBBOB, 43. STOCK AND STOCKHOLDERS. See COBPOBATIONS, 23-42. STOCK DIVIDENDS. As part of corpus of trust estate or of in- come, see TBUSTS AND TRUSTEES, 17. STOCK OF GOODS. Mortgage of, see CHATTEL MORTGAGES, 2-6. STORAGE. Cold storage of food, see FOOD, 1-4. Regulation of storage of gasoline, etc., see EXPLOSIONS AND EXPLOSIVES, 1-3. STORING. What constitutes storing of gasoline on premises, see FIRE INSURANCE, 14. STREET RAILWAYS. See CARRIERS OF PASSENGERS. Consent by city to construction of double spur track as grant of additional fran- chise, see FRANCHISE, 1. Contributory negligence of person struck by automobile after alighting from car, see AUTOMOBILES, 3, 4. Street car as vehicle required to give way to overtaking vehicle, see STREETS AND HIGHWAYS, 8. 1. Rights as to turnouts. A spur track to a lot on which a street railway constructed car barns for taking care of its animals, be- fore the advent of motor power, and for storage purposes, and the lot itself, is a necessary turnout and appurtenance under a special charter, giving it "desired turn- outs and appurtenances." Dayton v. South Covington, etc. St. R. Co. (Ky.) 1918E-229. 2. Provisions in an ordinance as to the rights as between a city and a street rail- road as to the "tracks" of the latter apply to STREETS AXD HIGHWAYS. 201 turnouts; they being necessary appurtenan- ces. Dayton v. South Covington, etc. St. R. Co. (Ky.) 191SE-229. (Annotated) 3. Compelling removal of tracks. In an action wherein a city desires to tear up and abate certain spur tracks of a street rail- way on the ground that the street railway had no further use for them, evidence is held to show that such spur tracks and cer- tain car barns were useful and necessary to the street railway company. Dayton v. South Covington, etc. St. R. Co. (Ky.) 1918E-229. 4. Ky. St. 3490, subd. 25, vesting a city with the right to exercise "a supervisory con- trol over the use of streets, and shall reg- ulate the speed of cars, signals, and fare on street cars," gives a city no authority to re- move spur tracks. Dayton v. South Coving- ton, etc. St. R. Co. (Ky.) 1917E-229. 5. A city cannot remove, abate, or destroy spur tracks of street railways under its right of exercising its police power, as a city only possesses such police power as may be ex- pressly or by implication delegated to it by the legislature through its charter, and then only on the ground that it is a nuisance, and the term '"nuisance" is limited to such things as the common law or the statute declares to be a nuisance, and perhaps those things which in their nature may be nuisances, and a mu- nicipality cannot declare what shall consti- tute a nuisance. Dayton v. South Covington, etc. St. R. Co. (Ky.Tl918E-229. 6. Collision Negligence of street car con- ductor. Where a street railway's conductor in charge of a motor and trailer after walk- ing upon straight railroad tracks gave the signal to the motorman to attempt the crossing, so that, though the motor got over the tracks, the trailer was struck by a train, the street railway is negligent, though the dust and noise of another train, which the motor had stopped to let go by, hindered the conductor's seeing and hearing the ap- proaching train. Memphis St. R. Co. v. Cavell . L. 3709, making a sher- iff's tax deed prima facie evidence that the sale as legally conducted, the owner has the burden of proving irregularity, and his showing that an entire quarter section val- ued at $7,000 was sold ^or liens totaling to $110 overcomes the prima facie showing of regularity. Smith v. Dwight (Ore.) 1918D- 563. b. Deeds. 41. Acknowledgment and witnessing. Under L. 0. L. 3702, providing that a sheriff's tax deed shall be recorded "without the sealing, witnessing, or acknowledgment." the recording officer is simply required to take official notice of the sheriff's signature, and it is not necessary that his deed be acknowledged or witnessed. Smith v. Dwight (Ore.) 1918D-563. 42. Invalidity of sale apparent on face. A tax deed is void on its face when it shows a sale of land in a manner not authorized by statute. Murphy v. Wilson (N. D.) 1918E-1101. c. Action to Quiet Title or Set Aside Sale. 43. Payment of tax as condition prece- dent. Where the property of a person is sub- ject to a tax under the law, lie must con- form to the requirements of equity and pay the assessment before he can successfully maintain a suit to defeat a J ax title out- standing against his land. Smith v. Dwight (Ore.) 1918D-563. 8. Special Assessments. a. Nature and Exercise of Power. 44. The authority to require the property specially benefited to bear the expense of a local improvement is a branch of the taxing power, or included within it, and the ques- tion as to whether the expense of making such improvement shall be paid out of the general treasury, or to be assessed upon the abutting or other property specially bene- fited, and if in the latter mode, whether the 208 ANN. CAS. DIGEST (19180-1918E). assessment shall be upon all the property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is a question of legislative expediency. Roswell v. Bate- man (N. Mex.) 1918D-426. (Annotated) b. Nature of Improvement. 45. Sprinkling street. The sprinkling of streets is such an "improvement" as will sup- port a special assessment. Roswell v. Bate- man (N. Mex.) 1918D-426. c. Property Subject and Exemptions. 46 Power of city to grant exemption. Under Gen. St. 1888, c. 107, in force be- tween 3870 and 1873, acticle 6, providing that the trustees of a town may condemn land for street purposes in certain oases, and prescribing the way in which it may be done, the law then authorizing a city to require the property holder to pay the ex- pense of building sidewalks in front of his property, a city has no authority, in con- sideration of an owner's setting his fence back twelve feet, to make a contract exempt- ing the owner from the expense of building sidewalks by agreeing that the owners of the property shall never be required to build a sidewalk, and that the city itself will per- petually maintain a pavement. Walker v. Richmond (Ky.) 1918E-1084. (Annotated) d. Persons Entitled to Object. 47. Section 243 of the charter of the city of St. Paul is not in conflict with the four- teenth amendment to the Federal Consti- tution, because only resident owners are entitled to sign the remonstrance therein provided for. Sullwold v. St. Paul (Minn.) 1918E-835. 48. The words "resident owners," as used in section 243 of the charter of the city of St. Paul providing that no public improve- ments shall be made if sixty per cent of the resident owners remonstrate, considered and held to apply only to parties owning property on the line of the improvement and residing within the city. Sullwold v. St. Paul (Minn.) 1918E-835. (Annotated) e. Mode of Assessment. 49. "Front foot rule." An assessment for a local improvement, levied under the ''front foot rule," instead of according to benefits accruing to the property assessed, does not violate the fourteenth amendment to the Constitution of the United States. Roswell v. Bateman (N. Mex.) 1918.U- (Annotated) f. Proceedings. 50. Necessity of hearing. Where an as- sessment levied for a street improvement can only be enforced by the filing of a notice of lien, and foreclosing the same in the same manner that mortgages on real estate are foreclosed, and as such foreclosure can on- ly be had upon notice to the property own- er, there is no taking of property without due process of law, although neither the statute nor ordinance adopted in pursuance thereof makes provision for notice to the owner of property of the levying of assess- ments for street improvements* Roswell v. Bateman (X. Mex). 1918D-426, 51. Judicial review. In the award of dam- ages and assessment of benefits where the improvement, when considered in connection with the property affected, is such that hon- est minds might differ, the apportionment thereof is a legislative function, and the courts will not interfere in the absence of a clear abuse of discretion. Sullwold v. St. Paul (Minn.) 1918E-835. 9. Succession Taxes. 52. Nature of tax. Inheritance or succes- sion taxes are not taxes laid upon persons or property, or, strictly speaking, taxes at all, but rather death duties, levied as exac- tions of the state in the course of the set- tlement of estate, as an incident to the devo- lution of title by force of its laws. Cor- bin v. Baldwin (Conn.) 1918E-932. 53. Rate of taxation. It is error to assess an inheritance tax on property not exempt at the rate of eight per cent instead of five per cent on $40,000, six per cent on the next $200,000, and seven per cent on the balance. Corbin v. Baldwin (Conn.) 1T18E- 932. 54. Deduction of other taxes. In comput- ing the amount of an inheritance tax, there should be deducted from the total amount of the appraisal local taxes paid to the tax collector, inheritance taxes paid in an- other state and an income tax paid to the United States internal revenue collector. Cor- bin v. Baldwin (Conn.) 1918E-932. 55. Exemptions. An intention to impose inheritance taxes on property devised or be- queathed to public charitable uses, and thereby divert some portion of the estate to some other public use than that within the mind or purpose of the testator, will not be deduced from language not clearly ex- pressing or indicating such intention. Cor- bin v. Baldwin (Conn.) 1918E-932. 56. Corporation or institution receiving state aid. The rule that a portion of a stat- ute exempting something from the opera- tion of the general rule prescribed by the statute should receive a strict construction is subject to limitations, and does not ap- ply to the construction of Pub. Acts 1915, c. 332, 3, exempting property passing to corporations or institutions receiving state aid from the inheritance tax imposed by that act. Corbin v. Baldwin (Conn.) 1918E- 932. 57. Within Pub. Acts 1915, c. 332, 3, exempting from inheritance taxes all prop- erty passing to or in trust for the benefit of any corporation or institution located in the state which receives state aid. educa- tional, charitable, and other corporations which are granted exemptions from general taxation, in recognition of the devotion of. TAXICABS TELEGRAPHS AND TELEPHONES. 209 their property to public purposes, are insti- tutions receiving state aid, and are entitled to exemption, since the word "aid," in its ordinary significance, has a broad and com- prehensive meaning, and includes help and assistance of whatever kind and by what- ever means or method provided, and there is nothing in the conditions and circum- stances under which the statute was en- acted, the subject-matter, the context, re- lated legislation, or antecedent legislative history to restrict its meaning. Corbin v. Baldwin (Conn.) 1918E-932. (Annotated) 58. The World Peace Foundation, intended to promote international peace, is a charity, and inheritance taxes will not be assessed on a devise or bequest to it. Parkhurst v. -961. 5. Injury to spectator of display of fire- works. It is actionable negligence so to fire bombs that they will fall upon a spectator standing where he is expected to stand to view a display of fireworks. Sroka v. Halli- day (R. I.) 1918D-961. 6. The promoters of a fireworks display, which may become a nuisance by reason of the place where and the manner in which it is conducted, may be held personally liable for damages for resulting personal injuries. Sroka v. Halliday (R. I.) 1918D-961. (Annotated) 7. Liability of committee in charge. It was the duty of the members of a com- mittee for expending an appropriation for and arranging for a Fourth of July celebration to see that proper precautions against injury from the negligent setting off of fireworks were taken, and the fact that they did not interfere with the manner in which that was done by their a^ent did not affect their liability. Sroka v. Halliday (R. I.) 1918D- [i61. (Annotated) 8. Where the members of a committee ap- pointed by a city council to have charge of an appropriation for and the arrangements for a Fourth of July celebration, without authority thereto, augmented the committee by the addition of other citizens, and con- tracted with a company to furnish fireworks in a manner satisfactory to the committee, the manner of firing was under the control of the committee, who in case of danger might have forbidden the display, so that the fireworks company was not an "independent contractor," but the ''agent" of such commit- tee, in respect to their personal liability for injury resulting from negligence in the man- ner of setting off the fireworks. Sroka v. Halliday (R. I.) 1918D-961. (Annotated) 9. Evidence. In an action against the members of a Fourth of July celebration committee for injuries alleged to have result- ed from their negligence in setting off a dis- play of fireworks, testimony of member of committee as to whether they were set off from a good location was erroneous, where he was not qualified as an expert in fireworks displays, and he should have been asked what was done in such lot in previous years, as known to him, and might have stated the nature of any previous displays by way of comparison with the one involved, and wheth- er any previous damage had been done. Sroka "v. Halliday (R. I.) 1918D-961. (Annotated) 10. In such action evidence as to the finan- cial responsibility of the defendants' agent in setting off the display was immaterial and inadmissible, where such agent was not a partv to the action. Sroka v. Halliday (R. L) 1918D-961. (Annotated) 11. Questions for jury. In an action against the members of a Fourth of July committee for personal injury resulting from the negligent setting off of fireworks, it is held, on the evidence that whether the dis- play was a nuisance growing out of the place where and the manner in which it was con- ducted was for the jury. Sroka v. Hallidav (R. I.) 1918D-961. (Annotated*) 12. In an action for personal injury from the alleged negligence of the members of a Fourth of July celebration committee in causing or permitting explosive aerial bombs used in a fireworks display to be sent up by their agents so as to fall on private prop- erty while unexploded, and there remain without recovery until found by a small boy. and then exploded to his injury, it is held that defendant's negligence was for the jury. Sroka v. Halliday (R. I.) 1918D- 961. (Annotated) THEORY OF CASE. Extending issue, see TEIAL, 10. TICKETS AND FARES. See CABBIEES OF PASSENGERS. TIMBER. See TBEES AND TIMBER. TIME, For appeal, see APPEAL AND EBROB, 15. Effect of extension of time, see BILLS AND NOTES, 1, 2; SURETYSHIP, 2, 3. For notice of claim, see CARRIERS OF GOODS, 6-8; CARRIERS OF LIVE STOCK, 3. Limiting time for filing claim. TIPS. 1. Construction of anti-tipping act. Laws 1912, c. 136, 4, provides that any hotel, restaurant, caf6 dining car, railroad, or sleep- ing car company, and the manager, officer, or agent in charge, violating the anti-tipping act or wilfully allowing it to be violated, shall be subject to a penalty for each tip allowed to be given. The section further provides that if the hotel, restaurant, etc., fail, neglect, or refuse to post the act as re- quired, such hotel, etc., shall be subject to fine. An indictment averred that accused, being then and there the proprietor of a cafe and as owner and proprietor being then and there in charge, wilfully and unlawfully did fail to post the act. It is held that the indictment did not charge an offense; the first sentence of the section, which included the agent or manager in charge of hotels, etc., being restricted to the permitting of or violations of the act, and the latter impos- ing a penalty f cents or over by the person issuing the same, does not violate constitutional principles of classification, and does not constitute an in- vasion of the constitutional right to the equal protection of the laws; there being a well-defined distinction between the practice condemned and those of issuing a slip, ticket, or check which bears upon its face a stated value redeemable only in cash by the person issuing them. Trading Stamp Cases (Wis.) 1918D-707. (Annotated) TRANSACTION WITH DECEASED PERSON. Competency of witness, see WITNESSES, 7. TRANSCRIPT. Transcript of record on appeal, see APPEAL AND ERROR, 18-21. TRANSFER TAX. See TAXATION, 52-58. TRAVELING SALESMEN. Carrying side line as breach of contract, see AGENCY, 6, 7. TREES AND TIMBER. Rights of life tenant as to cutting or selling timber, see LIFE ESTATES, 2-5. 1. Construction of option contract. Where an option timber contract is silent as to when the purchaser is to commence to cut the timber, the cutting and removal must TRESPASSERS TRUSTS AND TRUSTEES. be within a reasonable time. Berry v. Mar- ion County Lumber Co. (S. C.) 1918E-S77. 2. It is incumbent on the purchaser of tim- ber under an option contract to ascertain the facts and circumstances of the situation of the parties when he purchases, and he is charged with knowledge of the proper legal construction of the contract as to the time when the cutting should commence. Berry v. Marion County Lumber Co. (S. C.) 1918E- 877. TRESPASSERS. Injury to trespassing child by explosion of dynamite caps, see EXPLOSIONS AND EX- PLOSIVES, 5. TRIAL. See ARGUMENT AND CONDUCT OF COUNSEL; CRIMINAL LAW; NEW TRIAL. Error in submission of question to jury, see APPEAL AND ERROR, 85-88. Eight to open and close, see ARGUMENT AND CONDUCT OF COUNSEL, 1. 1. Continuance Discretion of trial court. An application for a continuance is ad- dressed to the sound discretion of the trial court, and a ruling of the trial court denying a continuance will not be disturbed by the appellate court, unless an abuse of this dis- cretion is clearly shown, but where such an abuse is manifest, especially in a capital case, it is the duty of the appellate court to inter- fere, in the furtherance of justice. More- head v. State (Okla.) 1018C-416. 2. Order of proof. Where, upon the rec- ord as a whole, evidence is admissible, the order of its introduction is immaterial. Mc- Cue v. State (Tex.) 1918C-674. 3. After plaintiff had had fair opportunity to assail defendant's character for truth, and had introduced his evidence in rebuttal, in- cluding impeachment thereof, his right to offer further evidence thereon after defendant had testified in rebuttal is in the sound dis- cretion of the trial court. Ray v. Shemwell (Ky.) 1918C-1122. 4. Opening for further proof. In a brok- er's action for commission on an exchange of properties, the court's action in opening the case and permitting the plaintiff to prove the community character of the stock ex- changed after the evidence has been closed is not an abuse of its discretion. Godefroy v. Hupp (Wash.) 1918E-494. 5. Offer of proof Sufficiency. In a brok- er's action for a commission on a sale of properties, defendant's offer to show wheth- er stock was community or separate prop- erty, without any offer of specific evidence or any statement as to what the witness would testify to, or any showing that the testimony would not have been corrobora- tive, is insufficient as a predicate for error in its rejection. Godefroy v. Hupp (Wash.) 1918E-494. 6. Nonprejudicial statement by court. A statement by the trial judge held not to be shown to have been prejudicial to the defendant. State v. Wellman (Kan.) 1918D- 1006. 7. View of premises. The trial court's re- fusal to permit an inspection of the premises by the jury is held not to be an abuse of its discretion in view of the length of time which had elapsed since the accident and the changes that might have taken place in the appearance of the premises. Chambers v. Minneapolis, etc. R. Co. (X. D.) 1918C- 954. 8. Weight of testimony of party. In de- ciding whether a case should have gone to the jury the truth of the plaintiff's evidence tending to sustain his right to recover must be assumed though in conflict with that of defendant. Parker v. Power (Md.) 1918C- 604. 9. If the plaintiff's evidence is of sufficient probative force to enable an ordinary intelli- gent mind to draw a rational conclusion therefrom, in support of plaintiff's right to recover, it should be submitted with the other evidence to the jury for determination by them of its weight and value. Parker v. Power (Md.) 1918C-604. 10. Extending issue. Where defendant saw fit to go into a certain subject in the trial court, it must be held to have given its consent to the consideration by the court of the testimony adduced on that subject. Oregon-Washington R. etc. Co, v. Spokane, etc. R. Co. (Ore.) 1918C-991. 11. Necessity of finding Issue excluded by laches. Where the defendant is barred by his laches from raising the question wheth- er the transaction in suit was a mortgage or not, the trial court is justified in failing specifically to find on the subject. Elling v. Fine (Mont.) 1918C-752. TROVER. See CONVERSION*. TRUST DEEDS. See MORTGAGES AND DEEDS OF TRUST. TRUSTS AND TRUSTEES. 1. Implied or Resulting Trust: a. In General, 214. b. Consideration Furnished for Convey- ance to Another, 214. c. Concealment of Existence of Codicil, 214. d. Trust in Proceeds of Insurance, 214. e. Proof- of Trust: (1) Parol Evidence Generally, 214. (2) Sufficiency of Evidence, 214. 2. Spendthrift Trust, 215. 3. Rights, Powers and Liabilities of Trus- tee: a. Sale of Property, 215. 214 AXX. CAS. DIGEST (1918C-1918E). b. Investments, 215. c. Holding Fund Together, 215. d. Taxes and Expenses, 215. e. Compensation, 216. f. Settlement of Accounts, 216. 4. Administration of Trust: a. Equitable Jurisdiction, 216. b. Change of Purpose or Terms of Trust, 216. c. Termination, 217. See LIFE ESTATES; WILLS. Bar of action against trustee as affecting rights of cestui que trust, see LIMITA- TION OF ACTIONS, 2, 3. Right of party to contract to exercise power of sale to have trust declared in his favor, sec POWERS, 2. Trustees in bankruptcy, see BANKRUPTCY. 1-3, 6. 1. Implied or Resulting Trust. a. In General. 1. A trust may be express or implied, and it is "implied" when deducible from the transaction as a matter of intent. Plum Trees Lime Co. v. Keeler (Conn.) 1918E-831. 2. When resulting trust begins. A re- sulting trust results from the transaction itself at the moment title passes, and no oral agreement or payments before or after the transaction will create such a trust. Baughman v. Baughman (111.) 1918E-895. b. Consideration Furnished for Conveyance to Another. 3. Where the purchase money for land is paid by one person and title conveyed to another, the law construes such facts as con- stituting a resulting trust, arising not from contract or agreement, but from the acts of the parties. Baughman v. Baughman (111.) 1918E-895. 4. Purchase by wife in name of husband. The presumption that land paid for by a man and conveyed to his wife or child is a gift or advancement does not apply to pay- ments by a wife for lands conveyed to her husband, and if paid from her separate es- tate, a resulting trust may be presumed. Baughman v. Baughman (111.) 1918E-895. .IHT ' (Annotated) c. Concealment of Existence of Codicil. 5. Where an executrix procured decree of final distribution to herself as beneficiary, but failed to offer an alleged codicil for pro- bate, the beneficiary under the codicil could not recover from her on the theory that a trust was raised in favor of such beneficiary. Davis v. Seavey (Wash.) 1918D-314. d. Trust in Proceeds of Insurance. 6. Where the landlord collects insurance money on policies payable to him by insur- ing loss of buildings constructed by the tenant whose lease will not expire for eight years, an implied trust is raised in favor of the tenant as against the landlord in the in- surance money. Plum Trees Lime Co, T. Keeler (Conn.) 1918E-831. e. Proof of Trust. (1) Parol Evidence Generally. 7. Facts constituting a resulting trust may ~be established by parol evidence. Baughman v. Baughman (111.) 1918E-895. 8. Where plaintiff agreed on foreclosure of a mortgage on defendant's land to buy in the land for the benefit of defendant and allow him to redeem on payment of amount ad- vanced, and in that manner was enabled to secure the lands for the amount of the mort- gage which was for a sum much less than the value of the lands, it appearing that other bidders were discouraged and that defendant relaxed his efforts to secure the money to buy in the property, plaintiff cannot, on the ground that the agreement was oral, re- pudiate the trust and take the lands free from any claim of defendant, for that would give him an unconscionable advantage. Strasner v. Carroll (Ark.) 1917E-306. I Annotated) 9. Parol trust contradicting deed. To per- mit a grantor to show a parol trust in him- self at variance with the written terms of his deed would violate the statute of frauds. Campbell v. Sigmon (N. C.) 1918C- 40. (2) Sufficiency of Evidence. 10. Parol evidence to establish a resulting trust must be clear, strong, and unequivocal, and establish the payment of purchase money by alleged beneficiary beyond doubt, and if based' upon declarations of a de- ceased person, it must be corroborated by other facts, but the evidence may be cir- cumstantial as well as direct. Baughman v. Baughman (111.) 1918E-895. 11. In ejectment to recover land, the evi- dence is held to show that plaintiff bought in the land at foreclosure of a mortgage under an agreement that he should convey to defendant, the owner, on receipt of the amount advanced. Strasner v. Carroll (Ark.) 1918E-306. 12. Evidence of furnishing money to hus- band by wife from her separate estate ex- amined, and is held not to show whether her money bought the land, or was merely used to pay off indebtedness thereon, and to be insufficient to entitle beneficiary to a decree declaring and enforcing a resulting trust. Baughman v. Baughman (111.) 1918E- 895. 13. Evidence as to conversations of chil- dren with their father examined, and held to show, that while he considered that chil- dren by his first wife had some claim aris- ing from money furnished by their mother upon the land owned at the time of second marriage, yet he considered he owned the land in his own right to dispose of as lie chose. Baughman v. Baughman (111.) 1918E- 895. TKUSTS AND TEUSTEES. 215 2. Spendthrift Trust. 14. Rights of creditors of beneficiary. Where a testator created a trust directing the payment of the income to his son for. life, remainder to the son's children, with di- rections that distribution of the principal should not in any event be made within twenty-one years after the death of the son, and that every payment of the income or principal should be made personally to the persons to whom they were given or de- vised, or upon their order, free from the interference or control of creditors, and nev- er by way of anticipation or assignment, creditors of a beneficiary, who had been dis- charged as a bankrupt, cannot reach his interest in the principal or income, the trust being a valid spendthrift trust. Boston Safe Deposit, etc. Co. v. Collier (Mass.) 1918C-962. (Annotated) 3. Rights, Powers and Liabilities of Trustee, a. Sale of Property. 15. Proceeds of sale as income. Where testator, after making specific bequests, de- vised the rest of his property in trust, and after bequeathing various annuities provided for payment of interest on a large sum to a charity, but made such payments subject to the annuities previously given, the pro- ceeds of the sale of vacant real estate should be treated as principal, rather than as in- come; this being particularly true, as the income met all of the requirements of the annuities and was sufficient to make up the maximum annual pavment given the charity. Parkhurst v. Ginn (Mass.) 1918E-982. b. Investments. 16. Testamentary trustees, who are re- quired to manage the estate and make pay- ments of income to various beneficiaries, are by implication given power to invest and keep safely and productively invested the trust funds, for the testator must have known that his investments could not al- ways continue the same. Parkhurst v. Ginn (Mass.) 1918E-982. 17. Stock dividends. Under a will devis- ing one-half of the residue of real and per- sonal property to one in fee, and the other half in trust, with power to sell, transfer, invest, or reinvest, to pay over the income to the life tenant, with remainder over to the first devisee on her death without issue, stock distributions made on the reorganiza- tion of corporations in which the testatrix held stock, representing merely an enhance- ment in the value of the corporate assets from good management and the growth of trade, and not the accumulation of earnings, together with the trustees' purchase of the securities of those companies as an invest- ment of principal assets,' are a part of the- corpus of the estate, rather than of the in- come. Poole v. Union Trust Co. (Mich.) 1918E-622. (Annotated) c. Holding Fund Together. 18. Several trusts. Where a testator de- vises and bequeaths the rest and residue of his property in trust, directing the trustees to pay various annuities to members of his family, and then pay the income on a large portion of his estate to a charity, but directs that the specific annuities shall first be paid, the entire property should be held in one trust fund, liable first for the satisfaction of the annuities. Parkhurst v. Ginn (Mass.) 1918E-982. 19. Where testator's sons have not become entitled to payments of income under a par- ticular clause of his will, and such payments depend on a contingency, the trustees will not, there being no present obligation on their part to set aside any of the income for this purpose, be required to so so, for they have a broad discretion, with which the court will not 'interfere. Parkhurst v. Ginn (Mass.) 1918E-982. 20. Where a testator, who owned a large interest in a publishing partnership, directs that on certain contingencies a number of shares, the interest of the partners being, for purposes of bookkeeping, divided into shares, shall be delivered to his two sons, the trustees, who are authorized to continue the investments in the partnership, are not bound to set aside from the general trust fund the amount of the shares to which the sons may become entitled. Parkhurst v. Ginn (Mass.) 1918E-982. 21. Where testator, after making various bequests, devised and bequeathed all the resi- due of his property to trustees, to hold in trust for payment of specified annuities, and for the payment of the income, as nearly as the trustees could conveniently reckon it, of $800,000, not exceeding $40,000 per year, to the World's Peace Foundation, the trustees should not set apart any of the trust prop- erty as a separate fund for the benefit of the World Peace Foundation; other parts of the will stating that the specific annuities should first be paid, and the provisions as to pay- ment to the foundation indicating that no separate funds should be created for its benefit. Parkhurst v. Ginn (Mass.) 1918E- 982. 22. The payment to the World Peace Foundation should be that proportionate part of the total net income of the fund which $800,000 bears to the entire principal, but not exceeding $40,000 annually. Park- hurst v. Ginn (Mass.) 1918E-982. d. Taxes and Expenses. 23. Where investments of trust funds are subject to annual taxes, these should be paid as part of the expenses of the trust, and are to be deducted before the net income can be ascertained. Parkhurst v. Ginn (Mass.) 1918E-982. (Annotated) 24. The general rule is that taxes and carrying charges on real estate held by trus- tees for a life beneficiary are to be paid out of the income of the trust estate, and are not properly chargeable to capital account, un- less the will contains unequivocal directions to the contrary. Spencer v. Spencer (X. Y.) 1918E-943. (Annotated) 216 AKNT. CAS. DIGEST (1918C-1918E). 25. Where testator recited his one-third interest in a farm, estimated to be worth $400,000, and provided that on a sale be- fore his death or by his executors thereafter a son should receive one-fourth of the pro- ceeds, and gave his residuary estate in trust for investment, and to pay over the net annual income to his widow for life, and on her death to pay the net annual income to his son, and gave the widow a legacy of $100,000, payable at once, and left him sur- viving his widow, a son, and grandson, and personal property valued at $156,802.50. cer- tain city property and a residence in New- port, it is held that the taxes and carrying expenses and assessments on the farm, which was unproductive, leaving the widow prac- tically no net income, were payable, not only of the income, but out of the principal. Spencer v. Spencer (N. Y.) 1918E-943. 26. Premiums on bonds. Under Rev. Laws, c. 150. 15, declaring that money paid with the approval of the judge of probate to a surety on an official bond given the court may be allowed as a charge against the estate, the payments of premiums on the bonds of testamentary trustees should be made out of income, and not out of the prin- cipal. Parkhurst v. Ginn (Mass.) 1918E- 982. (Annotated) 27. Permanent improvements. Where a testator left the residue of his estate con- sisting principally of unproductive land to a son subject to the payment of annuities, legacies, and other bequests, and "also sub- ject, if necessary, to the sale by my execu- tors and their successors, from time to time, of portions thereof, for the payment of taxes, assessments, and expenses," and subject to an executory limitation in the event that testator's wife or younger daughter sur- vived the son and his descendants, the ex- ecutors being given authority to manage the estate so long as any of the charges remain in force and effect, all charges having ceased to exist except the annuity to the younger daughter, the property being owned in fee simple by the children of the son subject to the annuity and the executory limitation, the cost of permanent improvements consist- ing of sewer, curbing assessments, and grad- ing, should be charged to the corpus of the trust. Sheffield v. Cooke (R. I.) 1918E-961. (Annotated) 28. Inheritance taxes. Where there was no sequestration of any part of a joint trust fund, and it was all held as a unit, though a part of the income was bequeathed as a charity, and other portions to various annui- tants, inheritance taxes assessed against such annuities must, in view of St. 1912, c. 678, 1, as amended by St. 1913, c. 498, declaring that all taxes under the act shall be paid out of and be chargeable to capital, instead of net income, unless provided in -a will or other instrument creating the grant, be paid out of the capital fund. Parkhurst v. Ginn (Mass.) 1918E-982. (Annotated) e. Compensation. 29. Compensation of the trustees for serv- ices in converting the unproductive real es- tate into personalty should be charged to the principal of the estate. Sheffield v. Cooke (R. I.) 1918E-961. (Annotated) 30. Where there is a fund in which all the beneficiaries are interested, the appor- tionment of the trustees' compensation in making permanent improvements can be made by paying the compensation out of the principal. Sheffield v. Cooke (R. I.) 1918E- 961. (Annotated) 31. Compensation of the trustees for serv- ices rendered in making permanent improve- ments on portions of the estate should be charged to the principal of the estate. Shef- field v. Cooke (R. I.) 1918E-961. (Annotated) 32. Although, where trustees are accus- tomed to pay over net income to beneficiaries each year, they are entitled to deduct the commissions which are properly chargeable against income annually before making their payments, their compensation may be charged to principal if, in the discretion of the court, the circumstances so warrant. Sheffield v. Cooke (R. I.) 1918E-961. (Annotated) f. Settlement of Accounts. 33. Under Gen. St. 1902, 383, every test- amentary trustee, unless excused by the will creating the trust, must account annually to the probate court. Hooker v. Goodwin (Conn.) 1918D-1159. 34. On accounting.by trustee under will. under Gen. St. 1902, '383, any party in in- terest may question items. Hooker v. Good- win (Conn.) 1918D-1159. 4. Administration of Trust. a. Equitable Jurisdiction. 35. Change of management. Where trus- tees cannot so manage a trust fund as to carry out the plain intentions of the testator under circumstances clearly not contem- plated by him, a court of equity may direct a change in the management of the trust fund to carry into effect the manifest inten- tion of the testator. Stephens v. Collison (111.) 1918D-559. (Annotated) b. Change of Purpose or Terms of Trust 36. The court has no authority to change the title of the trust property and destroy the trust itself by compelling a beneficiary to accept a compromise settlement of pend- ing litigation. Stephens v. Collison (111.) 1918D-559. (Annotated) 37. A court of equity may define but can- not alter a trust created by will or the powers of the trustee thereunder, except when necessary to preserve the trust from destruction; and even then it has no author- ity to defeat or destroy such trust. Ste- phens v. Collison (111.) 1918D-559. 38. A court of equity has no authority to compel a beneficiary under a will to accept a compromise settlement of a trust estate in disregard or abrogation of the terms of the TRUTH UNITED STATES. 217 trust, notwithstanding that it would be for the best interests of all concerned, and that all other beneficiaries had consented. Ste- phens v. Collison (111.) 1918C-559. (Annotated) c. Termination. 39. Setting aside. In an action to set aside a deed of trust executed by plaintiff after she had renounced the trust provisions of her husband's will and claimed her dower and distributable share of his estate, the effect of which deed was to relinquish sub- stantially all that the renunciation of the will brought her, and to retain substantially the same rights in the income of her de- ceased husband's estate as had been given her by his will, the evidence is held to show that the deed had been procured by undue influence of the trustee in order to avoid any injury to it is a financial institution which might arise from the renunciation of the first trust. Beard v. Beard (Ky.) 1918C- 832. (Annotated) 40. Right to revoke. Where a deed or other instrument creating a trust is not revocable by the maker by its terms, and i3 entered into understandingly by the parties, and is not procured by undue influence or affected by fraud, it cannot be revoked by the maker without the consent of all the par- ties to it, nor can its terms be altered by the maker except by the consent of the cestui que trustent. Beard v. Beard (Ky.) 1918C- 832. 41. Right of parties to terminate. An ac- tive trust, created as a protection to the beneficiary, because of his inexperience, im- providence, inability to manage his estate, or for any other purpose not illegal which the benefactor may deem wise to carry out his intentions, must be executed, and cannot be destroyed, even by a conveyance by the trustee to the beneficiary. Stewart's Es- tate (Pa.) 1918E-1216. TRUTH. As defense to libel, see LIBEL AND SLANDER, 36-43, 48-54. TUITION. Compelling admission of pupil to school without payment, see SCHOOLS, 1. TURNOUTS. See STREET KAILWAYS, 1, 2. TYPHOID. Liability of water company for injuries from typhoid germs in water supply, see WATERWORKS AND WATER COMPANIES, 4-11. ULTRA VIRES. Retention of benefits by city on repudiation of ultra vires contract, see MUNICIPAL CORPORATIONS, 10. UNDUE INFLUENCE. On grantor in deed creating trust, see TRUSTS AND TRUSTEES, 39, 40. On testator, see WILLS, 9-10. 1. "Undue influence" is a kind of mental coercion which destroys one's free agency and constrains him to do that which is against his will, and that he would not have done if left to his own judgment and voli- tion, so that his act becomes the act of one exerting the influence rather than his own act, rendering his deed, etc., void. Beard v. Beard (Ky.) 1918C-832. 2. An influence, acquired by modest per- suasion, arguments addressed to the under- standing and appeals to the affections, not destroying free agency, does not amount to undue influence, but the influence obtained by excessive importunity, superiority of will or mind destroying free agency, etc., avoids the deed, etc., thereby procured. Beard v. Beard (Ky.) 1918C-832. UNIONS. See LABOR COMBINATIONS. UNITED STATES. As necessary party in suit to cancel deed from state where grantee relinquished title to United States, see PUBLIC LANDS, 15-17, 19. Fee for collection of civil war damage claims, see ATTORNEYS, 6-10. 1. Determination of tests under contract. Where a contract for five or six inch rapid fire guns contemplated the making and test- ing of a type gun of each caliber, and made acceptance of additional guns dependent on passage of tests by the type guns, the chief of ordnance and the secretary of war, while authorized to determine disputes, are bound to decide candidly and reasonably whether the tests were passed satisfactorily. Saal- field v. U.,S. (U. S.) 1918E-1. (Annotated) 2. Under a contract for furnishing the United States with wire-wound rapid fire guns of five and six inch caliber, contemplat- ing the making and testing of a type gun of each caliber, and that the acceptance of additional guns should be dependent on the satisfactory passage of the tests of the type guns, it is held, that there was nothing to show that the secretary of war or chief of ordnance acted in bad faith or under a gross mistake in the determination of the result of the tests. Saalfield v. U. S. (U. S.) 1918E-1. (Annotated) 3. In such case, it is held that the gov- 218 . CAS. DIGEST (1918O-1918E). eminent by its delay did not waive its right to annul the contract, nor was that right suspended until a report should be made by experts on the technical problems involved in the construction of the gun. Saalfield v. U. S. (U. S.) 1918E-1. (Annotated) 4. Additional compensation. The cost of the last two of three unsuccessful temporary dams erected by the contractor for a public work at a place designated by the govern- ment engineer in charge, and the charges for superintendence during the time consumed in constructing them, is not chargeable to the United States, where the contract was silent as to temporary structures, and the site designated by the engineer seems to have been as good as any other, the final success on a new site having been achieved by new methods, not by change of place, there being nothing to show that the new methods could not earlier have been adopted. U. S. v. Normile (U. S.) 1918E-34. (Annotated) 5. The increased cost of the necessary la- bor and materials for a public work, due to the breaking out of the war of 1898 with Spain, is not chargeable to the United States because of an unexplained delay on its part in notifying the contractors that they could begin work, where the notice was given in time to begin work as early as contemplated by the specifications, and the prices had ad- vanced before the supposed neglect on the part of the government began, and the con- tractors had not the facilities to accumulate materials, even if they had been notified at an earlier date. U. S. v. Normile (U. S.) 1918E-34. (Annotated) 6. Unexpected obstacles to performance of contract. The encountering of the stumps and roots of a submerged forest in excavat- ing a channel for the United States does not relieve the contractor from liability under his contract to pay the stipulated liquidated damages and the additional cost of super- vision and inspection in case the work is not finished in time, where the chief engi- neer refused to sanction any extension of time, and the contract, which makes time of its essence, provides that if completion is delayed by strikes, epidemics, quarantine re- strictions, or by the "abnormal force or vio- lence of the elements," additional time may, with the sanction of the chief engineer, be allowed, the specifications further stating that the time allowed is considered sufficient ''unless extraordinary and unforeseeable con- ditions supervene," and warning each bidder to examine and decide for himself the char- acter of the material to be excavated, as no allowance will be made except for the re- moval of such materials as "solid rock, large boulders, and compact gravel." Maryland Dredging, etc. Co. v. U. S. (U. S.) 1918E-32. (Annotated) VALUE. See EVIDENCE, 7. Misrepresentation as to value, see FRAUD, 3-9. Proving value of automobile, see EVIDENCE, 7. Valuation of property for purposes of taxa- tion, see TAXATION, 5-20, 49. VARIANCE. See PLEADING. 23, 24. Effect of variance of description in decree quieting title from description in instru- ments on which plaintiff relied, see QUI- ETING TITLE, 1. VENDOR AND PURCHASER. 1. Requisites and Validity of Contract, 218. 2. Mutual Rights and Liabilities of Parties: a. Rescission of Contract, 219. b. Title Called for by Contract, 219. 3. Rights of Parties against Third Persons: a. Bona Fide Purchasers, 219. b. Rights and Liabilities of Purchaser from Vendee in Executory Contract, 220. See Lis PENDENS; SPECIFIC PERFORMANCE. Sale of personalty, see SALES. Deed by partner as contract to convey, see PARTNERSHIP, 4. Effect of agent's deed as contract to convey, see AGENCY, 14. 1. Requisites and Validity of Contract. 1. Option contract Right to enforce. A contract supported by valuable considera- tion, which grants a party thereto the right to purchase the land of the adverse party at a fixed price per acre, provided the party makes a survey to ascertain the acreage at his own expense, and exercises the option to purchase within a specified time, and which binds the adverse party to convey a good title in the event the right to purchase is exercised within the life of the contract, is binding on both parties, enforceable at the option of the party or his assignee, if exer- cised by making a survey and paying the price within the time fixed. Fields v. Vizard Invest. Co. (Ky.) 1918D-356. 2. Time for exercise of option. A con- tract, supported by a valuable consideration which binds the owner of land to convey the same to the purchaser on demand and payment of the price within a specified time. and which does not bind the purchaser to take the land at any time, and which ex- pressly provides that the contract, unless the privilege of purchase is exercised within the specified time, shall be void, is an option to purchase at the price fixed for the definite time: and, where no offer has been made by the purchaser or his assignees to exercise the option until after the expiration of the time, the contract is not enforceable against the owner. Fields v. Vizard Invest. Co. (Ky.) 1918D-336. 3. A contract granted to a party thereto and his assigns the option to purchase land at a fixed price per acre, provided the party VEXDOR AXD PURCHASER. 219 made a survey to ascertain the acreage at his own expense, and exercised the option to pur- chase within a specified time, and bound the owner to convey a good title in the event the right to purchase was exercised within the time. An assignee made a survey at his own expense within the time, and notified the owner of his intention to purchase. The parties believed that there was a cloud on the title by reason of an outstanding con- tract, and the owner orally extended to the assignee the time of the option, to permit him to procure an assignment of the out- standing contract. It is held that, assuming that the option was validly extended for a reasonable time, the assignee, on procuring the assignment of the outstanding contract, must complete the purchase without further delay, and where he delayed a month without taking any steps to complete the purchase, he forfeited his rights under the contract and extension. Fields v. Vizard Invest. Co. (Ky.) 1918D-336. 2. Mutual Rights and Liabilities of Parties. a. Rescission of Contract. 4. Misrepresentation of location of land. Misrepresentations as to the location of real estate, whether made innocently or with fraudulent intent, entitle a person acquiring the land, relying upon the statements, to rescind the transaction and recover the amount paid by him on the purchase price. Wilson v. Robinson (1ST. Mex.) 1918C-49. 5. Misrepresentation of acreage. Where the seller of a ranch, who had lived thereon for forty years, represented that it had about sixty acres of good bottom land, whereas in fact there were only about forty, while the bottom land was so placed that it was diffi- cult to estimate its quantity on inspection, the buyer is entitled to rescind. Jeffrey v. Weekley (Ore.) 1918D-690. 6. Effect of possession. Where title is de- fective, delivery of a warranty deed to one who has gone into possession on representa- tion of good title under contract of bargain and sale, but providing for "apt and proper deed with covenants of general warranty," does not render the contract an executed one, so as to prevent a rescission of the contract, in the absence of waiver. Cross v. Buskirk- Rutledge Lumber Co. (Tenn.) 191SD-OS:5. (Annotated) 7. In a suit by a purchaser for rescission of contract of sale, the fact that the pur- chaser remained in possession of the property after tender to the vendor by way of rescis- sion is matter merely addressed to the court in adjusting the rights of the parties in re- lation to rents, improvements, interest, or the like, and such retention of possession does not necessarily defeat the claim of re- scission. Jeffreys v. Weekley (Ore.) 1918D- 690. b. Title Called for by Contract. 8. Excessive demands. It is not a valid acceptance of an option on the "Eagle Block" to demand a deed with a description includ- ing all the party wall and part of the ad- joining block. Weadock v. Champe (Mich.) 1918C-874. 9. One given an option on the Eagle Block, which with the- adjoining building lias party wall rights in the separating wall, unevi- denced, however, by any recorded agreement, cannot by his acceptance demand a deed pro- viding that it is subject to existing recorded party wall agreements; thus excluding all party wall-rights for which there is no agree- ment of record. Weadock v. Champe (Mich.) 191SC-874. 10. One given an option on the Eagle Block, a building separated by party walls from buildings on each side, is not entitled to have in his deed an erroneous alterna- tive description contained in the deed to the seller. Weadock v. Champe (Mich.) 1918C- 874. 11. Deed reciting implied rights. One given an option on a building cannot object to the deed tendered because of a recital of party wall rights of the parties that would have been implied without such provision. Weadock v. Champe (Mich.) 1918C-874. 12. Notice of outstanding leases. Defend- ant, who gave plaintiff an option on a build- ing, having delivered to him for examina- tion the existing leases thereon, and he having retained them for some,time and ex- pressed himself satisfied therewith, the deed tendered by the defendant is not objection- able because of the provision making it sub- ject to existing tenancies, though the leases are not recorded. Weadock v. Champe (Mich.) 1918C-874. 13. Title depending on parol. Under a contract for, a warranty deed, delivery of a warranty deed, where the title of the grant- or depends on parol evidence of adverse pos- session, is not sufficient to render contract executed, in absence to waiver, because title must be good as founded on the records, and not on facts not of record. Cross v. Buskirk-Rutledge Lumber Co. (Tenn.) 1918D-983. 3. Rights of Parties against Third Persons. a. Bona Fide Purchasers. 14. Purchase of equitable title. The de- fense of bona fide purchaser without notice is not applicable to the purchase of an equity only in land. Tobey v. Kilbourne (U. S.) 1918C-470. (Annotated) 15. The purchaser of the equitable interest of the mortgagee of a part owner of timber lands standing in the name of a timber com- pany purchased at his peril, acquiring the property burdened with every prior equity, more especially where the purchase was under judicial sale, since the doctrine which protects bona. fide purchasers without no- tice is applicable solely to purchasers of legal titles. Thomas v. Scougale (Wash.) 1918C-452. (Annotated) 16. Generally, the equity of an innocent purchaser cannot be asserted without the ownership of a legal title, bivf a bona fide purchase for value and without notice of 220 AXN. CAS. DIGEST (1918C-1918E). what constitutes the legal title is a de- fense to a suit to enforce a paramount equitable title. Hennessy v. Blair (Tex.) 1918C-474. (Annotated) 17. Purchaser of fraudulent patent. A transfer of a certificate for public land \v;is forged, but the transferee obtained a patent from the state, and then conveyed the land to a third peison without actual notice of the fraud. There was nothing on the face of the patent or in the record of the land office giving notice that the patent was fraudulently obtained. An inquiry would have disclosed a holding by the patentee and his grantees for many years during which there was no claim, but ownership by the holder of the certificate or his heirs. It is held that, as under the doctrine of bona fide purchase the patent constituted "title," the rights of the bona fide purchaser could not be overthrown by the heirs of the own- ers of the certificate. Hennessy v. Blair (Tex.) 1918C-474. 18. Reformation. Xo reformation can be made in the description contained in a deed to property which has passed into the hands of a bona fide purchaser for value without notice. Robertson v. Smith (Mich.) 1918D- 145. (Annotated) 19. Notice ^of prior rights. Where an in- nocent purchaser for value without notice has knowledge that the barn of an adjoin- ing owner projects slightly over the bound- ary line, he is charged with notice only of such owner's claim to the land actually occupied. Kobertson v. Smith (Mich.) 1918D-145. (Annotated) 20. Constructive notice of fraud. To af- fect a bona fide purchaser for value of land with constructive notice of fraud .by his predecessor, the means of knowledge must be such that it was gross or culpable neg- ligence not to acquire the knowledge; it not being sufficient that he could have ob- tained the knowledge by prudent caution. Tobey v. Kilbourne (U. S.) 1918C-470. 21. Burden of proof. In a suit to set aside a conveyance for fraud, the burden of proving the defense of bona fide purchaser is on the defendant. Tobey v. Kilbourne (U. S.) 1918C-470. b. Rights and Liabilities of Purchaser from Vendee in Executory Contract. 22. In a suit to recover land from the as- signee of the original purchaser because of fraud in procuring the contract, the evi- dence is held to sustain a finding that the assignee had no notice of the fraud at the time he paid the consideration therefor. Tobey v. Kilbourne (U. S.) 1918C-470. \ 23. Subsequent acquirement of legal title. Where a contract for the purchase of land was procured by fraud, but was assigned to an innocent purchaser, and by agreement of all the parties the deed was made directly to the assignee, he can defend as a bona fide purchaser, the same as if the deed had been made to the original purchaser and the land then conveyed to the assignee. Tobey v. Kilbourne (U. S.) 1918C-470. VENUE. Where offense of introducing liquors into state committed, see INTOXICATING LIQ- UOKS, 9. 1. Action for libel. A civil action for libel being a transitory action, and maintainable wherever jurisdiction of the person of the guilty parties can be obtained, there was nothing to prevent plaintiff bringing both actions in the same circuit court, though in one action he sought damages only for the circulation of the libel in Wisconsin, and in the other action disclaimed as to such damages, especially as the fraternal order, if it authorized or ratified the acts of its agent, was jointly responsible for his acts. Morse v. Modern Woodmen . of America (Wis.) 1918D-480. 2. Change Where municipality is party. Under Act March 18, 1909 (P. L. 37), 1, par. 4, relating to change of venue in cases to which the county or a munici- pality therein is a party and local preju- dice is shown, and paragraph 5, relating to change of venue where a large number of the inhabitants of the county have an in- terest adverse to the applicant, a party is not entitled to a change of venue, unless it is shown to the court that a fair and im- partial trial cannot otherwise be had. Pennsylvania R. Co. v. Reading (Pa.) 1918E- 562. ' (Annotated) 3. On application for change of venue in a condemnation proceeding, where the public has gained the impression that plaintiff would give the land in question to the city, and it was afterwards learned that there was a con- dition and the gift was not made, and there was much public discussion of the matter in the newspapers which were about evenly divided between those favoring and those criticising plaintiff, and the publications had not appeared shortly before the trial, denial of the application is not error, though in two of six j-roceedings by plaintiff a ver- dict has been rendered which was not satis- factory to plaintiff in amount. Pennsyl- vania R. Co. v. Reading (Pa.) 1918K-f>t>2. (Annotated) 4. The interest of taxpayers as such in condemnation proceedings against a city is not such "interest" adverse to the applicant for change of venue as to require such change under Act March 18, 1909 (P. L. 37), 1, par. 5. Pennsylvania R. Co. v. Reading (Pa.) 1918E-562. (Annotated) VERDICTS. See DAMAGES, 5-10. Excessiveness of verdict in action for libel or slander, see LIBEL AND SLANDER, 68- 70. Judgment non obstante veredicto, see JUDG- MENTS, 4. Review of verdict in appellate court, see AP- PEAL AND ERROR. 44-48, 51. VERIFICATIOX WAGES. 221 Eight to judgment for amount of loss indi- cated by special verdict but not allowed in general verdict ir action against li- censee, see LICENSE, o. 1. Form. A verdict for "$6.500, Six Thous- sand $5.00 Dollars," with affidavits of six jurors that $6.500 was intended, is not so indefinite and uncertain as to warrant grant- ing of new trial. Hays v. Hogan (Mo.) 1918E-1127. 2. General verdict as one on each count. A verdict of guilty as charged upon all the counts of an indictment is a sufficient ver- dict on each count. People v. Brown (111.) 1918D-772. 3. A verdict of guilty as charged upon all the counts does not limit the court to the imposition of the penalty for a single offense. People v. Brown (111.) 1918D-772. 4. Construction. A verdict is not to be construed as strictly as an indictment, but liberally, with all reasonable intendments in its support. People v. Brown (111.) 1918D- 772. 5. Affidavits of' jurors to explain. Affi- davits of jurors are competent to explain a clerical error in a verdict. Hays v. Hogan (Mo.) 1918E-1127. 6. Finding degree of crime. The offense of assault with intent to kill, punishable by Pen. C'ode, *j 285, though containing the ele- ments of assault from simple assault to as- sault with intent to kill, is not divided into degrees within Code Cr. Proc. 408, declar- ing that when a crime is divided into degrees the jury must find the degree, and a ver- dict finding accused guilty as charged under Pen. Code, 285, is sufficient. State v. Morse (S. D.) 1918C-570. 7. Where, on a trial for assault with in- tent to kill, the court charged that, if the jury did not find accused guilty of the offense charged, they could find him guilty of as- sault with a dangerous weapon, or of simple assault, or not guilty, and submitted four forms of verdict, to which no exceptions were taken, a verdict of guilty as charged u not objectionable for uncertainty. State v. Morse '(S. D. )191CC-570. 8. Correction of verdict. The affidavit of all the jurors may be received to show that by a clerical error of the jury the verdict returned in court was the opposite of the verdict unanimously agreed upon by them. (Stevens v. Montgomery. 27 Minn. 108. dis- tinguished. Paufv. Pye (Minn.) 1918E-286. (Annotated) 9. When a mistake is plainly shown, there is little room for discretion in the court to refuse to act. Paul v. Pye (Minn.) 1918E- 286. 10. Direction of verdict. In a suit on a life policy, where there is some testimony tending to prove that the policy was avoid- ed by the insured's breach, the direction of rerdict for the plaintiff is erroneous. Gil- christ v. Mystic Workers, etc. (Mich.) 1918C- 756. 11. Where, at the close of the trial of a law action, each party moves for a directed verdict, the motion of one of the parties being sustained, the finding of the court takes the place of a verdict by the jury and will be so treated on appeal. Modern Wood- men of America v. Berry (Neb.) 1918D-302. VERIFICATION. Waiver of verification of answer by joining issue, see PLEADING, 25. VESTED RIGHTS. Effect of adoption of constitution, see CON- STITUTIONAL LAW, 2. VIEW OF PREMISES. Discretion of trial court to refuse, see TRIAL, 7. VILLAGE. Meaning of "village" as used in statute au- thorizing formation of lighting districts by unincorporated towns and villages, see LIGHTING DISTRICTS, 8. VIRTUAL REPRESENTATION. See PARTIES TO ACTIONS, 1, 2. VISIBILITY. Of easement, see EASEMENTS, 3. VOLUNTEER. Injury by electric wires, see ELECTRICITY, 4. VOTERS AND ELECTIONS. See ELECTIONS. VOTING CONTEST. Eights of parties to voting contest, see FRAUD, 10-13, 15. VOTING TRUSTS. See CORPORATIONS, 40, 41. WAGES. As preferred claim against insolvent corpo- ration, see CORPORATIONS, 43, 44. Minimum wage rate for women, see LABOR LAWS, 4-5. 22:2 . CAS. DIGEST (1918O-1918E). WAIVER. Of attachment lien, see ATTACHMENT, 3. Of error on appeal, see APPEAL AND EBBOB, 58-64. Of exemption from execution, see EXECU- TIONS, 78. Of forfeiture of gift by will by contest, see WILLS, 45, 46. Of forfeiture of insurance policy, see LITE INSURANCE, 3. Of ground for annulment of marriage, see MARRIAGE, 14. Of immunity as sovereign from suit, see IN- TERNATIONAL LAW, 1, 2. Of indictment and trial by jury, see CRIMI- NAL LAW, 13. Of misnomer of city in action, see MUNICI- PAL CORPORATIONS, 33, 34. Of notice of termination of lease, see LAND- LORD AND TENANT, 17. Of objection to tender because not made in cash, see PAYMENT, 2. Of provision in lease against subletting, see LANDLORD AND TENANT, 11. Of requirement! for proof of death of insured, see LIFE INSURANCE, 10, 11. Of right of accused to be present at trial, see CRIMINAL LAW, 5-10. Of suspension of member of beneficial asso- ciation, see BENEFICIAL ASSOCIATIONS, 15, 16, 19. Of verification of answer by joining issue, see PLEADING, 25. Pleading waiver of forfeiture of insurance policy, see INSURANCE, 22. WAR. See ALIENS ; ARMY AND XAVY. Contingent fee for collection of civil war damage claim, see ATTORNEYS, 6-10. Frustration of voyage by war as constructive loss under marine insurance contract, see MARINE INSURANCE, 1. Title and subject matter of Montana War De- fense Act, see STATUTES, 2, 3. 1. Appropriation by state for assisting. Laws 1918 (Ex. Sess.) c. 21. 1-14, ap- propriating money for aiding and' assisting the United States hi carrying on the present war and authorizing an expenditure of such money for the purpose of encouraging those engaged in agricultural pursuits, does not authorize the state to give or extend its credit or make gifts or donations to individ- uals, associations, or corporations, in vio- lation of Const, art. 13, 1, the right to assist the United States in war being ex- pressly recognized as a proper and probable occasion for the use of state funds by article 12, 12. State v. Stewart (Mont.) 1918D- 1101. (Annotated) 2. Laws 1918 (Ex. Sess.) c. 21, 1-14, appropriating money for assisting the United States in war and authorizing the issuance of bonds in excess of the constitutional limit of indebtedness, is not in violation of Const, art. 12, 12, forbidding expenditures in ex- cess of such amount, except for "appropria- tions or expenditures to suppress insurrec- tion, defend the state, or assist in defending the United States in time of war." State v. Stewart (Mont.) 1918D-1101. (Annotated) 3. Laws 1918 (Ex. Seas.) c. 21, 1-14, does not create a "debt" within Const, art. 13, 2, forbidding the creation of a debt without providing by irrepealable law for the levy of a tax until the indebtedness therein provided shall have been fully paid or discharged. Stewart v. Stewart (Mont.) 1918D-1101. (Annotated) 4. Said act is not in violation of Const, art. 5, 35, forbidding appropriations for charitable, industrial, educational, or benev- olent purposes to any person, corporation, or community not under the absolute control of the state. State v. Stewart (Mont.) 1918D-1101. (Annotated) 5. Nature of allowance for reimbursement. An amount appropriated under act March 4, 1915, to repay the city of Memphis for the rental value of land taken for a navy yard during the Civil War is not a gift or bounty, but is in the nature of a debt supported by good and valuable consideration. Moyers v. Memphis (Tenn.) 1918C-854. 6. Effect on contracts. A provision in a contract for the sale of goods, the deliveries to cover a period of years, that in the event of war between the nations of the respective parties delivery under the contract shall be suspended and resumed at the end of the war is void as against public policy and on the outbreak of war the contract is nullified. Bieber v. Rio Tinto Co. (Eng.) 1918D-583. (Annotated) 7. A construction contract is terminated by an order of the ministry of munitions made in time of war suspending the work indefinitely, such an order not being within a provision for an extension of the time to perform in case of "difficulties, impediments or obstructions." Metropolitan Water Board v. Dick (Eng.) 1918C-390. (Annotated) WARDS. 6ee GUARDIAN AND WAED. WAREHOUSEMEN. Cold storage of food, see FOOD, 1-4. Termination of carrier's liability, see CAR- RIERS OF GOODS, 3. WARRANTY. See SALES. 3y insured, see FIRE INSURANCE. 5, 6. By insurer, see INSURANCE, 21; LIFE INSUR- ANCE, 4-6. Covenants in deeds, see DEEDS, 8-12. 1. Germinating power of seed. The ev- idence sustains a finding of the jury that in the course of negotiations with the plaintiffs the vice-president and general manager of the defendant corporation made an oral WASTE WATERWORKS AXD WATER COMPANIES. 223 waranty of the germinating power of seed- wheat sold them; and the effect of such warranty was not as a matter of law an- nulled by printed disclaimers of warranty in the letter of confirmation, invoice and ship- ping tags, though the contract was oral and within the statute of frauds. Moorhead v. Minneapolis Seed Co. (Minn.) 1918E-481. (Annotated) 2. The vice-president and general manager of the defendant, who had general charge of its office and plant, had authority to bind it by a waranty, though the making of war- ranties on the sale of seed-grain was contra- rv to the custom of the trade. Moorhead v. Minneapolis Seed Co. (Minn.) 1918E-481. (Annotated) 3. Whether the evidence sustains a finding that there was a breach of warranty in re- spect of the germinating power of the seed is questioned but not decided. Moorhead v. Minneapolis Seed Co. (Minn.) 1918E-481. (Annotated) 4. Measure of damages. Where there is an entire failure of germination, and there- fore no crop, the measure of damages for the breach of warranty of germination is the amount paid for the seed, plus the cost of planting, plus the value of the use of the land for the cropping season, less the value of its use for a proper purpose to which it might reasonably have been put upon the ascertainment of a failure of germination, and not the value of the crop which would have been raised if the seed had been true to warranty less the cost of planting and producing. Moorhead v. Minneapolis Seed Co. (Minn.) 1918E-481. (Annotated) WASTE. 1. Placing of excavated material on lot. Under the lease of a lot fifty by one hundred and thirty-seven feet, not generally valuable for agricultural purposes, adjacent to the tenant's lot, used by it for a grape juice fac- tory and cold storage plant, not specifying the purposes for which it might be used, but providing that the lessee should not, under penalty of forfeiture, make or suffer any waste thereof, or any alteration therein without the lessor's consent in writing, the lessee's placing upon the lot of surface soil and, gravel, or rock, excavated from the ad- jacent lot so that the sand might be used in the concrete mixture for the cellar or base- ment wall, and that the gravel or rock might be readily moved and the surface soil dis- posed of, all of which had been removed, with the exception of twelve yards on a cor- ner of the lot left to make a better drive- way, does not constitute waste for which the lessor might forfeit the lease; "waste" being an unreasonable and improper tise, abuse, mismanagement, or omission of duty touching realty by one rightfully in posses- sion, which results in substantial injury thereto. Moore v. Twin City Ice, etc. Stor- age Co. (Wash ) 1918D-540. (Annotated) WATERS AND WATERCOURSES. See WATERWORKS AND WATER COMPANIES. 1. Diversion of percolating waters. The right of a landowner to dig wells on his own land and take therefrom percolating water is qualified by the rule of reasonable user, that he may not divert it to use elsewhere to the injury of other landowners in their right of reasonable use of percolating waters in their lands. Schenk v. Ann Arbor (Mich.) 1918E-267. (Annotated) 2. The right of a landowner to use per- colating waters is none the less qualified by the rule of reasonable user, because it is a city and is seeking water for its inhab- itants. Schenk v. Ann Arbor (Mich.) 1918E-267. (Annotated) 3. Where a city may divert percolating waters from its land for its inhabitants without violating the rule of reasonable user, and in so doing is not harming plain- tiff, it will not be enjoined; but plaintiff will be allowed damages for prior injury, with right to apply to the court in case of future injury. Schenk v. Ann Arbor (Mich.) 1918E-267. (Annotated) 4. Accretions. Whether accretions have been formed from the main bank of a stream to an island in the channel or from the island to the bank is a question of ma- terial fact to be determined from the ev- idence, construed, of course, by reference to well-established principles governing the law of accretions. It is none the less a question of fact. Stark v. Meriwether (Kan.) 1918E-993. 5. Apportionment of accretions. The proper method or rule for apportioning ac- cretions on rivers or other bodies of water between adjoining proprietors depends upon varying circumstances and conditions so that it is impracticable to state a general rule that will apply in all cases. Stark v. Meriwether (Kan.) 1918E-993. (Annotated) 6. On the facts stated in the opinion, held, that the adoption of a rule of apportion- ment between two adjoining proprietors by which each acquires a frontage on the new shore proportional to his frontage on the old one, by an extension of the original side lines, will not be disturbed. Stark v. Meriwether (Kan.) 1918E-993. (Annotated) WATERWORKS AND WATER COM- PANIES. See WATERS AND WATERCOUBSES. 1. Duty as to water supply. Where^ a corporation assumes practically exclusive right to provide a community with water for domestic use, it .must exercise ordinary care and vigilance in furnishing and distrib- uting at all times an adequate supply of wholesome water. Hamilton v. Madison Water Co. (Me.) 1918D-853. 2. While a private water company fur- nishing water to a town is not a guarantor 224 AKNT. CAS. DIGEST (1918C-1918E). of the purity of its water or of its freedom from infection, it is bound to use reasonable care in ascertaining- whether there is a rea- sonable probability that its water supply may be infected with a communicable dis- ease from causes which are known to exist, or which could have been known or foreseen by the exercise of such care; and if the ex- ercise of such care would have disclosed a reasonable probability of such infection, then it becomes the duty of a water com- pany to adopt whatever approved precau- tionary measures are, under the circum- stances of the case, reasonably proper and necessary to protect the community which it serves from the risk of infection. Hamil- ton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 3. It is no part of the duty of the con- sumer to investigate the water supply and ascertain the source of pollution; such duty resting on the company furnishing water. Hamilton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 4. Action for injury from impure water. In an action by a consumer for injuries from typhoid germs in water supplied by a pri- vate water company, the plaintiff to recover must prove: (1) That the fever was con- tracted from the use of water furnished by defendant; (2) that the defendant was neg- ligent in supplying contaminated water; (3) that the plaintiff exercised due care. Hamil- ton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 5. In a consumer's action against a water supply company for injuries from typhoid germs in water, it is only where it appears that the injuries were occasioned by one of two causes that the plaii tiff must give proof, excluding equal probability that injury re- sulted from a cause other than that for which the defendant is responsible. Hamil- ton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 6. In a consumer's action against a water company, supplying water for domestic pur- poses, for damages for illness, it is not nec- essary to prove actual knowledge of the un- wholesomeness of the water by defendant company to establish negligence ; it being sufficient to furnish testimony tending to show that exercise of reasonable care might have disclosed condition of water. Hamil- ton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 7. Evidence. In an action against a pri- vate water company for injuries from ty- phoid germs in water supplied a consumer, the consumer's burden of proof as to source of disease is satisfied by showing facts and circumstances from which it reasonably ap- pears that drinking of such water was prob- able efficient cause of fever. Hamilton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 8. In an action against a water company for damages, evidence of company's failure to exercise reasonable care in apprehending danger and taking precautionary measures .to avert it is held to be sufficient to Atab- lish negligence. Hamilton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 9. In a consumer's action against a water supply company for injuries alleged to be due to typhoid germs in water furnished, the evidence is held to be sufficient to justi- fy the conclusion that the source of the con- sumer's illness was the water furnished by the defendant company. Hamilton v. Mad- ison Water Co. (Me.) 1918D-853. (Annotated) 10. In a consumer's action against a wa- ter company, supplying water for domestic use, for injuries from typhoid germs, ev- idence held insufficient to establish contrib- utory negligence, the consumer having done what ordinarily a prudent water taker Avould have done under the same circum- stances. Hamilton v. Madison Water Co. (Me.) 1918D-853. (Annotated) 11. Question of fact. Tn an action by a consumer for injuries due to typhoid germs alleged to have been in the water furnished by the defendant water company, the source of plaintiffs disease is a question of fact. Hamilton v. Madison Water Co. (Me.) 1919D-853. (Annotated) WAYBILLS. Copies of waybills as evidence in prosecution for sale of liquor, see INTOXICATING LIQ- UORS, 13. WEAPONS. 1. Accidental shooting by sportsman. An instruction, in an action by one shot while out hunting, that a loaded shotgun was a dangerous weapon which would produce bod- ily injury when discharged, and that the law charged each member of a hunting party with such knowledge, and that it is the duty of each to use that degree of care sii"h as any reasonably prudent man would use under the circumstances, correctly states the degree of care which persons are bound to use, the law requiring persons having possession o_f firearms to exercise the utmost care that harm may not come to others, the degree of care being commensurate with the danger- ous character of the weapon. Gibson v. Payne (Ore.) 1918C-383. (Annotated) 2. In an action by plaintiff who was shot while out hunting, the court charged that plaintiff was bound to establish by the great- er weight of evidence that defendant careless- ly and negligently shot him; that members of a hunting party must use the care and caution such as any reasonably prudent man would exercise under the circumstances; that the law charges them with knowledge that a loaded shotgun is dangerous and that it was for the jury to determine whether plaintiff, by going in front of the party, was careless or negligent. It is held that the instmctions did not place upon plaintiff the burden of proving a want of contributory negligence; the instructions specifically stat- WEIGHT AND SUFFICIENCY OF EVIDENCE WILLS. 225 ing, after referring to defendant's claims, that he was bound to establish them by the greater weight of evidence. Gibson v. Payne (Ore.) 1918C-383. (Annotated) 3. Admissibility of evidence. Where the complaint of one who claimed he was negli- gently shot avers that defendant carelessly cocked a shotgun in his hands, defendant is entitled to rebut such claim by testimony that when he received the gun it was al- ready cocked. Gibson v. Payne (Ore.) msc-383. 4. Questions for jury. In an action by one shot while out hunting, the question whether he was contributorily negligent in preceding the hunting party into a field is held, under the evidence, to be for the jury. Gibson v. Payne (Ore.) 1918C-383. 5. In an action for damages for injuries received when he was struck by shot from a gun discharged by defendant, while hunting, the question of defendant's negligence is held to be for the jury. Gibson v. Payne (Ore.) 1918C-383. (-Annotated) WEIGHT AND SUFFICIENCY OF EVI- DENCE. See EVIDENCE. WEIGHTS AND MEASURES. 1. Validity of statute prescribing stand- ard. The authority to prescribe a stand- ard" of weights and measures not being vested by the Constitution of the United States exclusively in Congress, it is within the power of the legislatures of the several states to enact laws fixing and regulating standard of weights and measures in all re- spects in which Congress has not legislated upon the subject. Section 6415, General Code, as amended March 12, 1913 (103 0. L. 139), prescribing the dimensions of the peck and lesser measures, is. therefore, valid. Williams v. Sandles (Ohio) 1918D-154. (Annotated) 2. Validity of provision for confiscation of false devices. The provisions of section 7965 1, General Code, authorizing the con* demnation and confiscation of false or fraud- ulent weighing or measuring devices, are within the police power of the state, and do not contravene either the state or federal constitution. Williams v. Sandles (Ohio) 1918D-154. (Annotated) WIDTH. Of crossing at railroad, see RAILROADS, 6. WILLS. 1. Formal Requisites to Validity: a. Signature of Testator. 225. b. Attestation, 226. 2. Testamentary Capacity, 226. Ann. Gas. Dig. 1918C-E. 15. 3. Undue Influence, 226. 4. Revocation, 226. 5. Probate: a. Witnesses, 227. b. Evidence. 227. c. Appeal, 227. d. Costs, 227. e. Contracts Relating to Probate, 227. 6. Construction: a. General Rules of Construction: (1) Intention of Testator. 227. (2) Meaning of Words. 227. (3) Evidence in Aid of Construc- tion, 227. b. Construction of Particular Provisions. 228. 7. Validity of Provisions: a. Creation of Spendthrift Trust, 228. b. Creating Presumption of Survivor- ship, 228. c. Devise to Person under Fictitious Name, 228. d. Forfeiture of Gift by Contest, 228. 8. Legatees and Devisees: a. In General, 229. b. Lapsing and Ademption, 229. c. Election, 229. d. Payment, 229. e. Interest, 229. See ADVANCEMENT; DESCENT AND DISTOIBTT- TION; EXECUTOBS AND ADMINISTEATOBS ; LIFE ESTATES; REMAINDERS AND REVER- SIONS; TRUSTS AND TRUSTEES. Attorney drawing will who is also partner of attorney for proponents of will as com- petent witness in proceedings to probate, see WITNESSES, 1. Bequests to charity, see CHARITIES, 3, 4. Election of annuitant to take capital sum, see ANNUITIES, 1. Establishment of lost will, see LOST INSTRU- MENTS, 6. Expert evidence as to capacity of testator in stage of senile dementia, see EVIDENCE, 13. Number of challenges to jurors in will con- test, see JUBY, 3. Opinion evidence as to capacity of testator, see EVIDENCE, 15. Payment of annuity from income or corpus of estate, see ANNUITIES, 2. Proof of foreign wills, see EVIDENCE, 17-19. 1. Formal Requisites to Validity. a. Signature of Testator. 1. Necessity of signing in presence of wit- nesses. A testator is not required to sign his will in the presence of the witnesses, and due execution is had if he has acknowledged the instrument as his fee and voluntary act and deed, though he- signed it beforehand and out of the presence of the witnesses. Flvnn v. Flynn (111.) 191SE-1034. 2. Signature by another. A will may be executed by the testator signing his name, or acknowledging the instrument as his will, though signing through someone else. Flynn v. Flynn (111.) 1918E-1034. (Annotated) 2-26 AXX. CAS. DIGEST (1918G-1918E). b. Attestation. 3. An attestation clause reading, "The above and foregoing instrument, consisting of the foregoing page, was on the day and date thereof signed by T. F., the above named testator, in our presence, and declared by him tp be his last will and testament, and the' 'execution thereof to be his free act and deed, and we thereupon, at his request and in his presence, and in the presence of each other, signed our names hereto as wit- nesses to the said will; and we hereby de- clare that we believe the said T. F., at the time of signing, executing, acknowledging and witnessing the said will, to be of sound mind and memory, and that the same was his free and voluntary act and deed,'' is held to cover all the requirements of the statute, and to be prima facie evidence of due execu- tion of the will. Flynn v. Flynn (111.) 1918E-1034. 4. Effect of failure to remember transac- tion. An attestation clause, which the at- testing witnesses to the will swear bears their signatures, is competent evidence to es- tablish due execution of the will in chan- cery, when the only defect in the proof is that the subscribing witnesses are unable to recollect that all the formalities prescribed by statute and recited in the attesting clause were actually complied with. Flynn v. Flynn (111.) 1918E-1034. ' (Annotated) 2. Testamentary Capacity. 5. Delusions as to relatives. Where a will is attacked on the ground that testator was the victim of insane delusions that his brothers had come to his house to poison and kill him, and there is evidence from which the testator might have drawn such infer- ences, he cannot be deemed a victim of in- sane delusions, for his contentions were pos- sible, though improbable, and an instruction that evidence of such delusions can be con- sidered merely on the soundnesss of his mind is proper. In re Haslick's Estate (Mich.) 1918D-466. (Annotated) 6. Evidence as to capacity. In a will con- test case, evidence of testator's habits, bus- iness ability and conduct at other times and places than the time of making the will, is admissible only to throw light on the ques- tion whether he was of unsound mind at the time he executed the will. In re Haslick's Estate (Mich.) 1918D-466. 7. Letters used in testator's divorce case twenty-five years prior to his death are in- admissible as too remote to show his lack of sound mind. Walsh's Estate (Mich.) 1918E-217. 8. In a will contest ease, evidence held to warrant finding that at the time of the ex- ecution of the will, testator was of sound and disposing mind. In re Haslick's Estate (Mich.) 1918D-466. 3. Undue Influence. 9. Evidence insufficient to go to jury. The question of undue influence should not be submitted, where there is no evidence of undue influence other than proof that testa- tor did not dispose of his property, as he in casual conversation declared he would. In re Haslick's Estate (Mich.) 1918B-4l><>. 10. Instructions. In a will contest in which undue influence was asserted, the pro- ponents requested an instruction that if the jury found that the testator, being of sound mind, at various times after the execution of the will had it read over to him. and ex- pressed no dissatisfaction therewith, and that at such times he was not under the co- ercion of any of the proponents, nor unduly influenced in any way, then these facts were cogent evidence tending to show that the instrument was in fact his true will. It is held that this instruction or its equivalent should have been given, where evidence as to the testator's satisfaction with the will at a time when he was entirely free from the alleged undue influence was admitted, but the jury were not told that the purpose of its admission was to show that tlio will was not dictated by previous undue influence. In re Connors' Will (Iowa) 1918C-378. 4. Revocation. 11. Destruction of copy of will executed in duplicate. Where a will is executed in dupli- cate, destruction of one copy by the testator raises the rebuttable presumption of intent to revoke. Walsh's Estate (Mich.) 1918E- 217. (Annotated) 12. In a will contest, an instruction that, if a duplicate copy was destroyed before tes- tator handed another copy to an executrix, there can be no conclusive presumption that he destroyed the duplicate with intent to re- voke, is not erroneous. Walsh's Estate (Mich.) 1918E-217. 13. Presumption from failure to find will. The presumption that a will which can- not be found by proper search was destroyed by the testator animo revocandi is rebuttable by evidence of the testator's acts. In re Keene (Mich.) 1918E-367. 14. Declarations of testatrix. Evidence that testatrix drew a will cutting off her husband with only $10 "because he had robbed her," that she frequently declared that she had her affiairs fixed so that her property would go to her brother's children, in whose favor the will was drawn, and that she so said on the day of her death, and that divorce proceedings against her husband were then pending, is sufficient to raise the quo- tum of fact as to whether she revoked the will which was lost. In re Keene (Mich.) 1918E-367. (Annotated) 15. Evidence of enmity between testatrix and person disinherited. Where testatrix be- queathed to her husband $10 and no more because he robbed testatrix until she 'fired him out of the house," and the husband con- tested the will, the original of which had been lost, evidence of enmity between testa- trix and contestant was admissible on the question of revocation of the lost will. In re Keene (Mich.) 1918E-367. 16. Sufficiency of evidence. The evidence held to make a question for the jury whether WILLS. 227 testator by destruction of one of duplicate wills intended a revocation. Walsh's Es- tate (Mich.) 1918E-217. (Annotated.) 5. Probate. a. Witnesses. 17. Requiring production of subscribing witnesses. Where it is shown that a witness to the execution of a will resides out of the state and she testified in the probate court, and no real issue is made as to the execution of the will, there is no error in failing to require that such witness be produced. Walsh's Estate (Mich.) 1918E-217. b. Evidence. 18. Testimony of subscribing witness. In proceedings to probate a will, testimony of an attesting witness that he understood all the necessary formalities, and would not have signed as attesting witness if the neces- sary questions had not been asked, and the will not been executed in the proper way, is competent. Flynn v. Flynn (111.) 1918E- 1034. ( Annotated) 19. Testimony other than by attesting wit- nesses. Under the statute of wills, as amended in 1909, other evidence than that of two attesting witnesses may be offered in support of a will in the circuit court. Flynn v. Flynn (111.) 1918E-1034. 20. Conduct of proponent. Testimony as to conduct and statements of a proponent ia properly restricted to the purpose of testing his credibility, and cannot be used as sub- stantive testimony. Walsh's Estate (Mich.) 1918E-217. 21. Sufficiency. Where a will, signed by mark, has an attestation clause shoAving proper execution, and the attesting witnesses testify to all the facts of execution them- selves, such will is properly admitted to pro- bate, though the witnesses cannot testify that testator personally made the mark, par- ticularly where the attesting witnesses also signed their names to the left of testator's name and above the attestation clause, seem- ingly to witness the signature of the will by mark, and not as part of the attestation clause, which they also signed. Flynn v. Flynn (111.) 1918E-1034. (Annotated) c. Appeal. 22. Scope of issues. On appeal to the su- perior court from an order and decree of the probate court admitting a will to probate, the special statutory issue as to whether the will is a valid will is the sole issue. South Xorwalk Trust Co. v. St. John (Conn.) 1918E-1090. d. Costs. 23. Allowance to executor. The law does not cast upon the person nominated executor in a will the legal duty of procuring its pro- bate: and such person, though acting in good faith, is not entitled to payment out of the fund for his services and expenses in an ultimately unsuccessful effort to probate the will against a contest by the heir upon the ground of want of testamentary capacity, though he is successful in the first instance in securing its allowance in the probate court. Kelly v. Kennedy (Minn.) 1918D-164. (Annotated) e. Contracts Relating to Probate. 24. Agreement to dispense with probate Validity. Any right of all the parties in interest set aside or disregard a will does not extend to an active trust created by a testator, which he deems proper to protect his beneficiaries, except where the will creat- ing the trust fixes a definite duration and names the successive trustees. Stewart's Estate (Pa.) 1918E-1216. (Annotated) 25. Where a will left the residuary estate in trust for testator's wife for life, and on- her death to pay the income to his children in equal shares, and to the issue of any de- ceased child per stirpes, and directed that on the death of the last surviving child the- principal should vest under the intestate laws, the widow and children, though they are the only persons in being interested in the estate, cannot prevent the execution of the trust by agreeing to cancel the will, and are not entitled to enjoin its probate. Stewart's Estate (Pa.) 1918E-1216. (Annotated) 6. Construction, a. General Rules of Construction. (1) Intention of Testator. 26. Courts look closely to discover and give effect to the intention of the testator. Poole v. Union Trust Co. (Mich.) 1918E- 622. 27. In construing a will, the expressed in- tention of the testator must guide and gov- ern the court, a rule which applies to every part, the clause appointing an executor not excepted. State v. Holt camp (Mo.) 1918D- 454. 2. Meaning of Words. 28. When the ordinary words of the Eng- lish language are used in a will, they must be held to bear the customary meaning at- tached to them, unless a different sense can be obtained from the context, and it is not permissible to go outside of the will and show that the testator was accustomed to attach a meaning to these words peculiar to himself. Moseley v. Gbodman (Tenn.) 1918C-931. (Annotated) 3. Evidence in Aid of Construction. 29. Identification of devisee. Persons en- titled to a bequest given under nicknames, by which the testator habitually designated them, by extrinsic evidence may establish this fact, and upon so doing are entitled to the legacy. Moseley v. Goodman (Tenn.) 1918C-931. 30. Where testator knew a Mrs. T., but always called her Mrs. M., the mere fact 228 A XX. CAS. DIGEST (UUisO-l'.UM-; i. that lie devised property to Mrs. M., plus evidence that a Mrs. M. existed whose legal name \va such, did not satisfy the language of the will so as to preclude admission of testimony that testator always called an- other person Mrs. M., to raise a latent am- biguity. Moseley v. Goodman (Tenn.) 1918C-931. (Annotated) .31. A designation of a beneficiary as Mrs. M. itself requires the production of parol evidence to identify the legatee, and evidence that the testator was accustomed to call a certain person Mrs. M. is sufficient to raise the issue whether such person was intended or another. Moseley v. Goodman (Tenn.) 1918C-931. (Annotated) 32. Where testator devises property to Mrs. M. and to Mrs. M.'s housekeeper, the mere fact that one whose legal name is Mrs. M. had a housekeeper does not foreclose inquiry whether the testator meant another person, whom he always called Mrs. M., to whom and to whose housekeeper he was indebted for many kindnesses. Moseley v. Goodman (Tenn.) 1918C-931. (Annotated) 33. Although there was no evidence that a claimant was generally known as Mrs. M., it is sufficient to show the testator's meaning if there is evidence that he always called a certain person Mrs. M. Moseley v. Goodman (Tenn.) 1918C-931. 34. The evidence is held to be sufficient to show that by a legacy to Mrs. M. testator intended a Mrs. T., whom he always called by the former name. Moselev v. Goodman (Tenn.) 19180-931. * (Annotated) b. Construction of Particular Provisions. 35. Estate created. A gift by testator of the use of all his property, real and person- al, to his wife for her life, creates a life estate in all property, real and personal. Cross v. Buskirk-Rutledge Lumber Co. (Tenn.) 1918D-983. 36. Trust estate. A will bequeathing the residuary estate in trust for the benefit of testator's wife for life, and on her death to pay the income to his children in equal shares, and to the issue of any. deceased child per stirpes, and directing that on the death of the last surviving child the prin- cipal should vest under the intestate laws, creates a valid, well-defined, active trust. Stewart's Estate (Pa.) 1918E-1216. 37. Gift to class. Statute of Descent (Hurd's Rev. St. 1915-16, c. 39), 11, pro- viding that whenever a devisee, being a child or grandchild of testator, shall die be- fore testator, and no provision shall be made for such contingency, the issue of such devi- see shall take the devise, applies to a devisee dying, to testator's knowledge, before the making of the will; so that a daughter of testator having died before the will was made, leaving as issue a daughter, and testa- tor having made devises to his living daugh- ters .and such granddaughter by name, and devised the remainder in other lands to "my children," the granddaughter takes her mother's share in the devised remainder. Kehl v. Taylor (111.) 1918D-94S. (Annotated) 7. Validity of Provisions. a. Creation of Spendthrift Trust. 38. Where the right of a testator to create a spendthrift trust has crystallized into a rule of property, it should not be changed by the courts, but by the legislature. Boston Safe Deposit, etc. v. Collier (Mass.) 1918C- 962. (Annotated) b. Creating Presumption of Survivorship. 39. Where a testator directs that trust funds be paid as his wife's will may direct, and that he shall be deemed to have pre- deceased her if order of death is unknown, and the wife makes a will at the same time as her husband, reciting the power and giv- ing the property affected thereby, the pos- sibility that the wife might have prede- ceased her husband does not render the gift void, and the property passes according to the wife's will. Matter of Fowles (N. Y.) 1918D-834. (Annotated) 40. Giving effect to the estator's intent does not violate the rule against enlarging wills by reference to extrinsic documents which may not be authentic. Matter of Fowles (N. Y.) 1918D-834. (Annotated) c. Devise to Person under Fictitious Name. 41. A devise to a person by any name, however different the name used in the will from the true name of the person, is good, provided it is shown that the name used is one by which the testator was accustomed to designate the person. Moseley v. Good- man (Tenn.) 1918C-931. d. Forfeiture of Gift by Contest. 42. What contest entails forfeiture. Where children of a testator appeal from an order admitting the will to probate, there- by raising the special statutory issue as to whether the will is valid, they violate a provision of the will that any beneficiary of the will contesting its probate or operation, or seeking to set it aside or annul it, shall forfeit the interest given such beneficiary by the will, though they attempt to conceal their purpose to contest the will by stipu- lating that the only questions to be deter- mined are whether a provision in the will is void under the law against perpetuities and whether a gift of income without limi- tation passes an absolute estate. South Nonvalk Trust Co. v. St. John (Conn.) 1918E-1090. (Annotated) 43. An action by a legatee to determine the true construction of a will or of any of its parts is not a breach of the ordinary pro- vision for forfeiture in case of a contest, as the object of such an action is not to make void the will or any of its parts, but to as- certain its true legal meaning. South Nor- walk Trust Co. v. St. John (Conn.) 1918E- 1090. (Annotated ) 44. Under a provision in a will for a for- feiture of the rights of any beneficiary con- testing the will, a beneficiary does not for- feit his rights by bringing a contest for WITNESSES. 220 Avhich there is a reasonable ground, as the law is vitally interested in having prop- erty transmitted by will under the condi- tions it prescribes, and none others, and if those interested are forced to remain silent the court will be unable to ascertain the truth, and those who would profit by a will procured by undue influence or made by one lacking testamentary capacity would there- by be aided in their wrongful designs. South Xorwalk Trust Co. v. St. John (Conn.) 1918E-1090. (Annotated) 45. Waiver of forfeiture. Under a will providing for forfeiture in case of a con- test, where all the children and beneficiaries united -in a contest, they cannot waive the forfeiture on the ground that they are the only persons who can claim a forfeiture, as the condition of forfeiture is not for the benefit of the other beneficiaries, but to carry out the wishes of the testator. South Nor walk Trust Co. v. St. John (Conn.) 1918E-1090. 46. In such case, all of the children having forfeited all of their rights under the will, the property of the testator is intestate es- tate. South Xorwalk Trust Co. v. St. John (Conn.) 1918E-1090. 8. Legatees and Devisees. a. In General. 47. Establishment of rights of legatee. One bringing suit to establish her right under a will has the burden of proving that she is the legatee intended. Moseley v. Goodman (Tenn.) 19180-931. b. Lapsing and Ademption. 48. Where testator gives to his wife cer- tain property absolutely, and in a subse- quent clause provides that he shall be deemed to have predeceased her if order of death is unknown, the gift does not lapse, but passes to the personal representatives of the wife. Matter of Fowles (X. Y.) 1918D-834. (Annotated) c. Election. 49. Effect on right of other devisees. Where it appears from a will that the pos- se^sion of the remainderman was postponed solely for the benefit of the testator's widow, who was given a life estate, it is presumed that, on her renunciation of the life estate, the remaindermen are entitled to enter into enjoyment at once. Scott v. Moore (Del.) 1918C-409. (Annotated) 50. A contention that the election by a widow, who was given a life estate under a will to take her dower interest, destroys the contingent remainders created by the will, since they could not vest until the death of the widow, and there could be no remainder without a particular estate to support it, so that testator died intestate as to the life estate, will not be sustained, where contrary to the testator's intention, and probably un- sound. Scotten v. Moore (Del.) 1918C-409. (Annotated) 51. Where a testator gave his property to his wife for life, and after her death to his children then living, or in case of their death to their representatives, share and share alike, the evident intent of the testator was to provide first of all for his wife, and to give the property to the children as soon as his wife's interest terminated, and they are therefore entitled to the immediate posses- sion as soon as the widow elected not to take under the will, whether their remainders are vested or contingent. Scotten v. Moore (Del.) 1918C-409. (Annotated) d. Payment. 52. Time. Where testator devises prop- erty in trust, directing his trustees to make payments of the income, the trustees, though much must be left to their discretion, should not make partial distribution of the final residue of the estate until accumulations of income will leave a fair margin of safety to protect the beneficiaries. Parkhurst v. Ginn (Mass.) 1918E-982. 53. Where testator, who has devised and bequeathed the bulk of his property in trust, after providing for various annuities and an animal payment to a charity, directs that when, after the payment of such gifts and legacies, a reserve of sufficient funds shall become available for distribution, certain be- quests shall be paid, one of them being to an individual, such bequests should not be with- held, where the trust fund has reached such a sum that it is amply sufficient to satisfy all prior charges, and a portion of which consists of real estate, which would doubt- less be sold within a reasonable time and added to the productive property; it being apparent that testator did not intend such bequests to be permanently delayed. Park- hurst v. Ginn (Mass.) 1918E-982. e. Interest. 54. Interest is payable on pecuniary lega- cies from the time when, by the terms of the will or by rules of law, they become due and ought to be paid. Parkhurst v. Ginn (Mass.) 1918E-982. 55. Rate of interest After the happen- ing of a contingency on which a legacy was payable, such legacy, under St. 1915, c. 151, 2, bears interest at the rate of 4 per cent, unless the court rules otherwise. Parkhurst v. Ginn (Mass.) 1918E-982. WITNESSES. 1. Competency: a. Interest, 230. b. Member of Grand Jury, 230. c. Privileged Communications, 230. d. Transaction with Person Since De- ceased, 230. 2. Examination: a. Mode of Examination, 230. b. Cross-examination, 230. c. Redirect Examination, 231. 230 AXX. CAS. DIGEST (1018O-191SE). 3. Credibility, Impeachment and Corrobora- tion: a. Credibility, 231. b. Impeachment, 231. c. Corroboration, 231. See APPEAL AXD EBBOB; EVIDENCE; TRIAL. Attesting witnesses of will, see WILLS, 1, 3, 4, 17-19, 21. 1. Competency. a. Interest. 1. Draftsman of will Partner of attorney for party. In proceedings to probate a will, the testimony of an attesting witness, a lawyer, is not incompetent because he drew the will, while his partner tried the case in the lower court, and is attorney for propon- ents in the supreme court, since the interest which will disqualify a witness must be cer- tain, direct, and immediate, showing that he will gain or lose as the direct result of the suit, and. if the testimony does not show such direct interest, the witness' interest, if any, goes merely to his credibility, and not to his competency. Flynn v. Flvnn (111.) 1918E-1034. b. Member of Grand Jury. 2. Scope of requirement of secrecy. Comp. Laws 1897, 11887, providing that a mem- ber of a grand jury cannot be obliged or al- lowed to testify in what manner he or any member voted on any question before them, or what opinions were expressed by 'any juror in relation to any such question, .ap- plies only to a proceeding in which an in- dictment* was properly found, and not to deliberations concerning and resulting in an unauthorized libelous report by the grand jury. Bennett v. Stockwell (Mich.) 1918E- 1193. c. Privileged Communications. 3. Husband and wife Effect of divorce. A divorced husband cannot testify against his wife as to a confidential communication between him and his wife. Hesdorffer v. Killer (Miss.) 1918E-191. (Annotated) 4. Code 1906. 1916, providing that hus- band and wife may be introduced by each other as witnesses in all cases and shall be competent witnesses in their own behalf as against each other in all controversies be- tween them, leaves the common-law rule as to the competency of husband and wife ap- plicable to the question of a divorced hus- band's competency to testify against his wife in a suit in which there is no contro- versy between the husband and wife. Hes- dorffer v. Killer (Miss.) 191SE-191. (Annotated) 5. Where a husband pledged stock certif- icates belonging to his wife and purporting to have been indorsed by her, and was sub- sequently divorced from her. he was a com- petent witness against her as to the in- dorsement of the certificates, since, if she indorsed them to enable him to borrow money upon them, she could not have deemed the transaction confidential, and a husband or wife may testify against the other after divorce if the testimony does not relate to privileged communications. Hesdorffer v. Hiller (Miss.) 1918E-191. (Annotated) 6. Physician and patient Waiver by pro- vision in insurance policy. Comp. Laws 1897, 10181, which prohibits disclosui by a physician of information imparted to him in his professional capacity by a patient, was amended by Pub. Acts 1909, No. 234, provid- ing that after the decease of such patient, in a contest upon the question of admittin<_ r his will to probate, his heirs at law shall be deemed to be his personal representatives to waive the privilege. An insurance policy issued by a fraternal benefit organization provided that the insured waived her privi- lege relating to the disclosure by attending physicians of information obtained while acting as such. It is held that the waiver was inoperative to render a physician's tes- timony admissible in suit on the policy, since the Act of 1909 creates the only excep- tion to the prohibition against physicians' testimony. Gilchrist v. Mvstic Workers, etc. (Mich.) 1918C-756. d. Transaction with Person Since Deceased. 7. Waiver of objection. By cross-examin- ing an interested party relative to conversa- tions with a deceased person, the cross-ex- amining party waives the right given by Gen. St. 1913. 8378, Rev. Laws 1905, 4663, to exclude such testimony; and the party examined may giA^e further testimony as to such conversations at any appropriate time in the trial though not questioned rela- tive thereto on redirect. Stair v. McXulty (Minn.) 1918D-201. (Annotated) 2. Examination. a. Mode of Examination. 8. Leading questions. In a criminal trial, allowing leading questions to witnesses speaking through an interpreter is largely in the trial court's discretion. People v. Brown (111.) 1918D-772. 9. Refreshing memory. While a witness can testify only to such facts as are within his knowledge ' and recollection, he is per- mitted to refresh and assist his memory by the use of a written instrument, memoran- dum, or entry in a book, and it is not neces- sary that the writing should have been made by the witness himself, or that it should have been an original writing, nor that the writing thus used should itself be admissible in evidence, provided that after inspecting the record he can speak to the facts from his own recollection. Scovill Mfg. Co. v. Oassidy (111.) 1918E-602. b. Cross-examination. 10. As to accuracy of appraisal. In an action for deceit in the sale of a decedent's goods by defendant, as administrator. through an agent, where defendant offered WOMESf WOKDS AXD PHRASES. 231 evidence of what appeared to be the estimate of appraisers of the value of the stock, it is proper for the buyers to show by cross- examination that the appraisers placed a different value upon the goods. Harlow v. Perry (Me.) 1918C-37. 11. Cross-examination of accused. In a prosecution for manslaughter in the opera- tion of motor vehicles, where defendant de- nied all 1'nowledge of having struck deceased, and testified that he knew nothing about it at the time, his cross-examination as to whether, when notified, he went up to find out what he was accused of, is proper. State v. Schaeffer (Ohio) 1918E-1137. c. Redirect Examination. 12. Cross-examination outside scope of di- rect. Where defendant, on cross-examination of a witness whose direct examination is confined to the identification of testimony considered by arbitrators, draws out testi- mony as to the award and what the arbitra- tors intended to decide, the cross-examina- tion justifies redirect examination of the witness on the same subject and forecloses any objection which might otherwise have been urged to the competency of the evi- dence. Oregon-Washington R. etc. Co. v. Spokane, etc. R. Co. (Ore.) 1918C-991. 3. Credibility, Impeachment and Corrobora- tion. a. Credibility. 13. The credibility of witnesses is a ques- tion for the jury. McCue v. State (Tex.) 1918C-674. b. Impeachment. 14. Proof of character. To impeach de- fendant as a witness his character for hon- esty may not be shown, but only his char- acter for truthfulness and morality. Ray v. Shemwell (Ky.) 1918C-1122. c. Corroboration. 15. Proof that testimony not volunteered. Where the accused attacks a witness by evidence of statements that he was going to volunteer to testify, though he knew noth- ing of the case, the witness may be corrobo- rated by evidence that his name was fur- nished to the prosecution bv another. McCue v. State (Tex.) 1918C-674. 16. Proof of good reputation. Where a witness is a stranger, and discrediting facts have been developed in his cross-examina- tion, he may be corroborated by proof that his general reputation for truth and veracity is good. McCue v. State (Tex.) 1918C-674. 17. Where witnesses offered by the ac- cused to prove his alibi are contradicted by the state's witnesses as to the fact of the alibi, but are not in any other way attacked, their testimony may not be corroborated by proof of their general reputation for vera- city, notwithstanding the trial is held in a county where accused's Avitnesses are not known. McCue v. State (Tex.) 1918C-674. 18. Previous consistent statements. Where accused attacks the credibility of a witness offered to contradict his defense of alibi by .testimony that the witness had stated to others that he knew nothing about the case, but was going to testify nevertheless, etc., the witness may be corroborated by evidence -that, shortly after the killing, he made state- ments identical with those given at trial. McCue v. State (Tex.) 1918C-674. WOMEN. See DIVORCE; HUSBAND AND WIFE; MAR- RIAGE. Construction and validity of statute limiting hours of labor for women, see LABOR LAWS, 6-11. Judicial notice of labor conditions of women, see EVIDENCE, 5. Validity of statute establishing minimum wage rate for women, see LABOR LAWS. 4, 5. WOOD. Power . of city to maintain wood yard, see MUNICIPAL CORPORATIONS, 12. WORDS AND PHRASES. "Annulment," see MARRIAGE, 9. "Apparatus," see FIXTURES, 5. "Arising out of," see MASTER AND SERVANT, 13, 16. "As now established," see STATUTES, 14. "Average weekly wages," see MASTER AND SERVANT, 19, 24, 25. "Children," see DESCENT AND DISTRIBUTION, 1. "Claims," see STATES, 6. "Contiguous," see ADVERSE POSSESSION, 2. "Continuously," see INSURANCE, 51. "Court," see JUDGES, 1. "Disability," see ACCIDENT INSURANCE, 1, 2, 4. "Divorce," see MARRIAGE, 9. "Due." see CONTRACTS, 32. "Foundries," see LABOR LAWS, 3. "General election," see ELECTIONS, 4. "Idem-sonans," see TAXATION, 35. "Independent contractor," see INDEPENDENT CONTRACTORS, 1. "Industrial accident," see MASTER AND SERV- ANT, 12. "In the course of," see MASTER AND SERV- ANT, 13, 14, 16. "Jud:?e," see JUDGES, 1. "Lawful requirements," see MASTEB AND SERVANT, 7-9. "Loss." see MASTER AND SERVANT, 10. "Lost time," see MASTER AND SERVANT, 20. "Machinery," see FIXTURES, 6. "Manufacturing establishment,'' see LABOR LAWS, 10. "Mercantile establishment." see LABOR LAWS, 11. 232 \ CAS. DIGEST (1918C-1U18E). "Mistake of law," see RESCISSION, CANCELLA- TION AND REFORMATION, 3. "Necessary," see EASEMENTS, 4; LIFE ES- TATES, 14. "Necessary expense," see TAXATION, 4. "Nuisance," see STBEET RAILWAYS, 5. "Offer," see SALES, 3. "Practice of medicine," see PHYSICIANS AND SUBGEONS, 5. "Proxy," see CORPORATIONS, 39. "Public improvements," see MECHANICS' LIENS, 4. "Public officers," see PUBLIC OFFICERS, 1. "Public utility," see TAXATION, 29. "Resident owner," see TAXATION, 48. "Right of way," see TAXATION, 9. "Roadway," see TAXATION, 8. "Shall," see PENSIONS, 4. "Special election," see ELECTIONS, 4. "Storing," see FIRE INSURANCE, 14. "Substantially," see LIBEL AND SLANDER, 60. "Tracks," see STREET RAILWAYS, 2. "Turnout and appurtenances," see STREET RAILWAYS, 1-3. "Undue influence," see UNDUE INFLUENCE, 1, 2. "Voting trust agreement," see CORPORATIONS, 40. "Within the house," see INSURANCE, 51. 1. About. The introduction of the words "about" or "estimated" or "more or less" in a conveyance or contract for a conveyance does not afford a shield against liability for false representations as to acreage, and the mere fact that a deficiency is very large in pro- portion to the supposed quantity is often treated as in itself evidence of fraud or mutual mistake. Jeffreys v. Weekly (Ore.) 1918D-690. (Annotated) 2. Children. Ordinarily, the word "chil- dren" means the immediate offspring, and does not include "grandchildren." Lowery v. Le Plore (Okla.) 1918E-1001. (Annotated) 3. Consortium. The term "consortium" in- cludes affection, solace, comfort, companion- ship, and society incidental to the marital relation, and services of the wife. Smith v. Nicholas Building (Ohio) 1918D-206. 4. Continuing offense. A continuing of- fense is a transaction or a series of acts set on foot by a single impulse and operated by an unintermittent force, no matter how long a time it may occupy. Reynolds v. State (Ariz.) 1918D-879. 5. Invoice value. Plaintiff represented that a stock of goods which he offered in exchange for other property was of the in- voice value of $12,000. It is held that the expression "invoice value" should be con- strued as having reference to the cost price for which the seller invoiced the goods to the purchaser, and not to their actual value. Knopfler v. Flynn (Minn.) 1918E-538. (Annotated) 6. Leg. In its common-law definition, the term "leg" does not include the foot, nor any of the bones of the foot. Butler v. Eminent Household of Columbian Woodmen (Miss.) 1918D-1137. 7. Liquor saloon. A liquor saloon is a shop or room wherein is kept a varied as- sortment of liquors which are sold by the glass, drink or at retail. Gibbs v. Arras Bros. (N. Y.) 1918D-1141. 8. Political party. A "political party" is an association of voters believing in certain principles of government, formed to urge the adoption and execution of such prin- ciples in governmental affairs through of- ficers of like beliefs. Kelso v. Cook (Ind.) 1918E-68. 9. Pro rata. In a contract for the contri- bution to a fund by several parties pro rata, the term "pro rata" means in proportion, proportionately, according to measure, in- terest, or liability of each, and never means equality or an equal division, and has no meaning unless referable to some rule or standard. Chaplin v. Griffin (Pa.) 1918C- 787. (Annotated) 10. Stakeholder. A "stakeholder" is one in whose hands money or property is de- posited to abide the event of a gambling con- tract. Martin v. Francis (Ky.) 1918E-289. WORKING CONTRACTS. See CONTRACTS, 24-36. Construction of contracts with United States, see UNITED STATES, 1-6. -WORKMEN'S COMPENSATION ACTS. See MASTER AND SERVANT, 6-26. WRIT OF INQUIRY. Necessity for in justice's court, see JUSTICES OF THE PEACE, 4. X-RAYS. Expert opinion of operation of X-ray ma- chine, see EVIDENCE, 14. Liability for negligent use, see PHYSICIANS AND SURGEONS, 13-15. X-ray photograph as evidence, see EVIDENCE, 26, 27. INDEX TO THE NOTES IN ANN* CAS* VOLUMES 1918C-1918E ABANDONMENT. Abandonment of purpose as ground for dis- solution of corporation at instance, of minority stockholder, 1918E-427. Necessity that abandonment or rescission of written contract for sale of goods be iu writing, 1918C-1213. ACCOUNTING. See PARTNERSHIP. ACCRETIONS. See WATERS AND WATERCOURSES. ABOUT. Meaning of "about" when used with refer- ence to quantity, 1918D-693. ABSENCE. See DEATH. ABSTRACT OF TITLE. Liability of abstractor of title on account of abstract made by him, 1918E-93. ABUTTING OWNERS. See STREETS AND HIGHWAYS. ACCIDENT. Se MUNICIPAL CORPORATION'S ; WEAPONS. ACCIDENT INSURANCE. Construction of "total disability" clause in accident insurance policy, 1918C-113. Meaning of term "confined to house" or sim- ilar phrase in accident or health insur- ance policy, 1918C-531. ACCUSED PERSONS. See CRIMINAL LAW. ACKNOWLEDGMENTS. Necessity for acknowledgment of lease, 1918D-161. Resort to instrument in aid of certificate of acknowledgment attached thereto, 1918C-347. Rights of parties under deed or contract by married woman invalid for defective ac- knowledgment. 1918E-648. Rights of parties under deed or contract by married woman invalid for want of ac- knowledgment. 1918E-631. ACTIONABLE WORDS. See LIHEL AND SLANDER. .'OLA. ACTIONS. Actions for violation of federal hours of service act, 1918C-815. Right of alien enemy to defend action, 1918C- 721. Right of alien enemy to sue or continue suit, 1918C-716. 233 234 ANN. CAS DIGEST (1918C-1918E). Right to sue alien enemy, 1918C-722. See also HUSBAND AND WUPE; INTERNATION- AL LAW; Las PENDENS; MONEY HAD AND RECEIVED; PARTIES TO ACTIONS; PARTNERSHIP. AGE. Recital in public record as proof of ace, 1918E-266. Waiver of forfeiture of benefit certificate for misrepresentation as to age, 191SD-305. ACT OF OOD. 3HT O1 . Act of God as excuse for failure to comply with federal hours of service act, 1918C- 809. ADDITIONAL COMPENSATION. See CONTRACTS; PUBLIC OFFICEBS. ADJOINING LANDOWNERS. Rights of parties with respect to division wall in case of conveyance of part of. premises, 1918C-879. ADMISSIONS AND DECLARATIONS. Compromise: admissibility of statement of fact made in coniaection with offer of compromise, 1918E-439. Implied admissions: failure of party to civil action to reply to oral statement as im- plied admission, 1918C-9. Instructions: propriety of cautionary instruc- tion relative to consideration of verbal admission, 1918D-298. Insurance: declarations or written state-' ments made by insured previous to death as evidence of suicide, 1918C-1050. Pleading: admissibility and collusiveness against pleader, in subsequent action with stranger, of admission in pleading, 1918E-549. Wills: admissibility of declarations of tes- tator upon issue of revocation of will which cannot be found, 1918E-370. See also DYING DECLARATIONS. ADVANCEMENTS. When interest is chargeable on advancement in -distribution of testate estate, 1918E- 212. ADVERTISEMENTS. See INSURANCE AFFIDAVITS. Affidavits of jurors as evidence that verdict returned or entered differed from verdict actually found, 1918E-287. AGENCY. Gaming: recovery from principal or agent of money lost in gaming, 1918E-139. Independent contractors: person employed as sales agent as independent contractor, 1918C-658. Insurance agents: liability of agent to insur- , ance company for failure to cancel or reduce policy as directed, 1918C-1043. Misfeasance: personal liability of agent hav- ing charge of real property for misfeas- ance, 1918D-233 Traveling salesmen: carrying side line as breach of contract by traveling sales- man, 1918C-952. Undue influence: existence of relationship of principal and agent as affecting right to set aside trust for undue influence, 1918C-846. See also BROKERS. AGRICULTURE. Changing character of land as waste, 1918D- 543. Person employed to assist in baling hay as independent contractor, 1918C-656. ALIENS. Rights and liabilities of alien enemies, 1918C-709. ALLOWANCES. See PUBLIC OFFICERS. ALMSHOUSES. Liability of municipality for negligence in respect to condition of or performance of services incident to almshouse, 1918D- 803. AMOUNT IN CONTROVERSY. See APPEAL AND ERROR. AMUSEMENTS. See BUILDINGS; THEATERS AND AMUSEMENTS. AND DUE. Legal meaning of "and due," 1918E-785. CUMULATIVE INDEX TO XOTES. 235 ANNUITIES. Right of annuitant to capital sum, 1918E- 808. ANNULMENT. See CONTRACTS; MARRIAGE. ANTI-TIPPING ACT. See TIPS. APPAREL. See WEARING APPAREL. APPEAL AND ERROR. Amount in controversy for purposes of ap- peal where several causes of action are joined, 1918E-506. Entry of summary judgment against surety on bond in nature of appeal bond, 1918C- 1151. Review of facts on appeal from decision of intermediate appellate court reversing on facts, 1918D-1205. Timeliness of objection to verification of pleading made in appellate court, 1918D- 448. APPOINTMENT. See POWERS. APPORTIONMENT OF ACCRETIONS. See WATERS AND WATERCOURSES. IIS ARABLE LANDS. ARMY AND NAVY. Compulsory military service, 1918D-100. Power of United States to condemn land for military purposes, 1918E-48. ARSON. Construction of statute prescribing form of indictment for arson, 1918C-557. ASSEMBLAGE OF HOUSES. See HOUSES. ASSIGNMENTS. Assignment of proceeds of contract by build- ing contractor, subcontractor or mate- rialman, 1918D-609. Giving of chattel mortgage as assignment or change of interest of insured within pro- hibition in fire insurance policy, 1918D- 862. Priority as between mechanic's lien claimant and assignee of amount due contractor, 1918C-1081. Right of assignee to enjoin execution sale, 1918C-270. Rights of assignee of mortgage as against prior equities, 1918C-479. See also MIXES AND MINERALS. ASSIGNMENTS FOR BENEFIT OF CREDITORS. What is "necessary expense" in administer- ing estate under assignment for benefit of creditors, 1918D-921. ASSUMPSIT. See MONEY HAD AND RECEIVED. Changing arable land into wood land aa ATTACHMENT. waste, 1918D-543. into arable land as waste, Attachment creditor as purchaser pendente . , , . . , lite. 1918C-66. Cha Tn\ n Jv> pa ^ Ure mt a * RS Wa8 ^ Kight of attaching creditor to enjoin execu- tion sale, 1918C-264. 1918D-543. ARBITRATION AND AWARD. Impeachment of award of arbitrators for mistake of fact not involving exercise of judgment, 1918C-974. Meaning of "about" in award when used with reference to quantity, 1918D-705. ARGUMENT OF COUNSEL See MISCONDUCT OF COUNSEL. ATTORNEYS. Allowance of attorney's fees in action to en- join execution sale, 1918C-306. Solicitation of employment by attorney as ground for disbarment, 1918E-133. Validity and construction of statute limiting amount of attorney's fee for collection of claim against * federal government, 1918C-863. What constitutes practicing law, 1918C-131. See also MISCONDUCT OF COUNSEL. 236 A.X.V (AS DIGEST (1918C-lUlEj. AUTHORITY. BASTARDY. See REFEREES. AUTOMATIC BELLS. See RAILROADS. AUTOMOBILES. Conelusiveness of license registry as to own- ership of motor vehicle, 1918E-737. Effect on rights and liabilities of owner or driver of automobile of failure to comply with statutory regulations as to regis- tration, license, displaying number, etc., 1918D-S47. Person employed in connection with auto- mobile as independent contractor, 1918C- 653. AWARD. See ARBITRATION AND AWARD. BAIL. Deposit of money in lieu of bail in criminal cases, 1918D-536. BAILMENTS. Right of bailee to deny title of bailor, 1918E- 1201. Unauthorized use of chattel by bailee as con- version, 1918C-948. BALANCE DUE. Legal meaning of "balance due," 1918E-785. BANANA PEELS. See STREETS AND HIGHWAYS. BANKRUPTCY. Assignee in bankruptcy as purchaser pendente lite, 1918C-67. Effect on spendthrift trust of bankruptcy of beneficiary, 1918D-91. What is "necessary expense" in administer- ing estate in bankruptcy, 1918D-922 BANKS. Construction of statute prescribing form of indictment for violation of banking law, 1918C-558. Judgment or settlement in bastardy proceed- ing as barring right of action for dam- ages for seduction, 1918D-669. BECOME DUE. Legal meaning of "balance due," 1918E-785. BELLS. See RAILROADS. BENEFICIAL ASSOCIATIONS. Construction of representation that person applying for reinstatement of insurance is "in good health," 1918D-1005. Recourse to courts by members of benevo- lent, beneficial and similar associations to protect property rights, 1918E-1178. Waiver of, or estoppel to deny, forfeiture of benefit certificate for violation of con- tract of insurance other than failure to pay assessments or dues, 191SD-305. BENEFICIARIES. See TRUSTS AND TRUSTEES. BENEFIT OF COUNSEL. See CRIMINAL LAW. BEQUESTS. See WILLS. BILLS AND NOTES. Giving of indemnity as prerequisite to re- covery of amount of lost negotiable in- strument, 1918C-925. BILLS OF LADING. Meaning of "machinery" in bill of lading, 1918E-209. BINDING SLIPS. See EMPLOYERS' LIABILITY INSURANCE. BOARDS. Sec EXCISE COMMISSIONERS; INSURANCE; SUPERVISORS. CUMULATIVE INDEX TO NOTES. "BOHEMIAN OATS" CONTRACTS. See ILLEGAL CONTBACTS. BOILER INSPECTION. See MASXEB AND SERVANT. BONA FIDE PURCHASERS. See DEEDS; VENDOR AND PURCHASES. BONDS. Necessity and sufficiency of bond in action to enjoin execution sale, 1918C-301. See also APPEAL AND EBBOB; BUILDING CON- TBACTS; INDEMNITY; INJUNCTIONS; SURETYSHIP. BOROUGHS. "Village" as svnonvmous with borough, 1918D-266 BRIDGES. Person contracting for construction of bridge as independent contractor, 1918C-654. BROKERS. Revocation of authority of real estate broker, 1918D-339. Wkat constitutes implied contract to pay broker for sale, lease or mortgage of real estate, 1918C-1064. What constitutes performance entitling loan broker to commission, 1918C-609. BRUSH LOTS. Changing pasture into brush lot as waste, 1918D-543. BUILDING CONTRACTS. Assignment of proceeds of contract by build- ing contractor, subcontractor or mate- rialman, 1918D-609. Loan of money to contractor as giving right to mechanic's lien or to recovery on con- tractor's bond, 1918D-350. BUILDING LANDS. Changing meadow into building 1 land as waste, 1918D-543. BUILDINGS. '"^ Erection of buildings in public parks and squares, 1918E-489. Liability of municipality for unsafe condi- tion of building maintained for public use or amusement, 1918L>-115. Person employed in building work as inde- pendent contractor, 1918C-t>54. Power of United States to condemn land for public building site, 1918E-44. BURDEN OF PROOF. Burden of proof as to validity of subsequent marriage, 1918E-1233. Burden of proof in action to enjoin execution sale, 1918C-304. Burden of proof of existence of relation of independent contractor, 1918C-632. BURGLARY. Construction of statute prescribing form of indictment for burglary, 1918C-558. BURIAL. See DEAD BODIES. BUSINESS. Validity of statute or ordinance requiring place of business (other than liquor saloon) to close at certain hour, 1918D- 200. BY-LAWS. See CORPORATIONS. J AI ib CANALS. Persons employed in connection with canal as independent contractor, 1918C-655. Right to injunction against execution sale of property of canal company, 1918C-229. CANCELLATION. See INSURANCE CANDIDATES. See ELECTIONS. CAPITAL SUM. See ANNUITIES; TBUSTS AND TRUSTEES. 238 ANN. (JAS DIGrEST CAR DOORS. See CARRIERS OF PASSENGERS. CARRIERS OF GOODS. Delay in transportation: measure of damages for carrier's delay in transporting prop- erty intended for exhibition purposes, 1918E-1057. unusual and excessive amount of freight to be handled as excusing delay in trans- poration by carrier, 1918D-143. Freight charges: validity and enforcement of contract by carrier to carry goods at discriminating rate fixed by mistake, 1918E-458. Hours of service act: carriers subject to federal hours of service act, 1918C- 797. Method of transportation: effect of liability of carrier of goods by land of departure from agreed method of transportation, 1918C-1075. Termination of liability: what constitutes reasonable time for removal of goods by consignee from premises of carrier, 1918E-1114. Uniform sales act: construction of uniform sales act with respect to effect of de- livery of goods to carrier, 1918D-400. stoppage in transitu under uniform sales act, 1918D-411. CARRIERS OF LIVE STOCK. Carriers subject to federal hours of service act, 1918C-797. Effect of liability of carrier of goods by land of departure from agreed method of transportation, 1918C-1075. Tickets- and fares: validity of rule of car- rier requiring passenger to pay fare in- to box, register, or the like, 1918D-473. what is reasonable sum which passenger may tender in payment of fare, 1918D- 182. CARRYING CHARGES. See TRUSTS AND TRUSTEES. CARRYING SIDE LINE. % See AGENCY. CASH REGISTERS. Person employed in connection with repair of cash register as independent contract- or, 1918C-655. CASUALTY. Casualty as excuse for failure to comply with Federal Hours of Service Act, 1918C- 808. ;ta CAUTIONARY INSTRUCTIONS. See INSTRUCTIONS. CEMETERIES. See DEAD BODIES. CERTIFICATES. See ACKNOWLEDGMENT: BENEFICIAT, ASSO- CIATIONS; DEATH CERTIFICATES. CARRIERS OF PASSENGERS. Collisions: liability of street railway for in- jury to passenger caused by collision at railroad crossing, 1918C-47. Doors: liability of carrier for injury to pas- senger caused by car door. 1918C-377. Ferries: liability of owner of ferry to pas- sengers, 1918E-1083. Hours of service act: carriers subject to federal hours of service act, 1918C- 797. Larceny or robbery: liability of carrier (other than sleeping car company) for larceny from or robbery of passenger by stranger, 1918E-582. Riding on platform : validity and enforcement of rule of carrier prohibiting passengers from riding on platform, 1918C-534. Riding on running board: contributory negli- gence of passenger in riding or standing on running board of open street car, 19180-445. CESTUI QUE TRUST. See TRUSTS AND TRUSTEES. CHALLENGING OPPONENT. See -MISCONDUCT OF COUNSEL. CHANGE OF INTEREST. See FIRE INSURANCE. CHANGE OF OFFICERS. See CORPORATIONS. CHARITIES. Masonic Lodge or body as charitable insti- tution. 1918E-1043. CUMULATIVE INDEX TO NOTES. 239 CHARTER. Sec CORPORATIONS; EXPIRATION OF CHARTER; MUNICIPAL CORPORATIONS. CHATTEL MORTGAGES. Giving of chattel mortgage as assignment or change of interest of insured within pro- hibition in fire insurance policy, 1918D- 862. CLOTHING. Admissibility in evidence of articles of clothing to establish identity of dead body, 1918C-702. CLOUD ON TITLE. Eight to injunction against execution sale to prevent cloud 011 title to land, 1918C- 172. CHATTELS. See BAILMENTS. CLUBS. See SOCIETIES AND CLUBS. CHILDREN. See INFANTS; PARENT AND CHILD. CHURCHES. See RELIGIOUS SOCIETIES; SCHOOLS. CITIZENSHIP. Naturalization of alien enemy, 1918C-723. CIVIL AVAR. Validity and construction of statute limit- ing amount of attorney's fee for collec- tion of civil war damage claim against federal government, 1918C-869. CLAIMS. See GOVERNMENT: MUNICIPAL CORPORATION* COLD STORAGE. See FOOD AND DRUGS. COLLECTIONS. See ATTORNEYS. ' COLLEGES. See SCHOOLS. COLLISIONS. See CARRIERS OF PASSENGERS. COLOR OF TITLE. Operation as color of title of deed or contract by married woman invalid for defective acknowledgment, 1918E-C53. Operation as color of title of instrument by married woman invalid for want of ac- knowledgment, 191SE- 636. CLAIMS DUE. Legal meaning of "claims due," 1918E-787 COMBINATIONS. See LABOR COMBINATIONS. CLASS. See WILLS. COMMISSIONS. See BROKERS. CLERGYMEN. See RELIGIOUS SOCIETIES. COMMON DISASTER. See SURVIVORSHIP. CLOSING HOURS. See BUSINESS. COMMON-LAW MARRIAGE. See MARRIAGE. 240 ANN. CAS DIGEST (1918C-1918E). COMMUNITY PROPERTY. CONFIDENCE GAME. See HUSBAND AND WIFE. COMPENSATION. See ATTORNEYS; BROKERS; CONTBAOTS; EM- INENT DOMAIN; PUBLIC OFFICERS; SURE- TYSHIP. Constriiction of statute prescribing form of indictment for confidence game, 1918C- 558. CONFINED TO HOUSE. See INSURANCE. COMPROMISE AND SETTLEMENT. Admissibility of statement of fact made in connection with offer of compromise, 1918E-439. Judgment or settlement in bastardy proceed- ing as barring right of action for dam- ages for seduction, 1918D-669. COMPULSORY MILITARY SERVICE. See ARMY AND NAVY. CONFLICT OF LAWS. See COURTS; DIVORCE; GARNISHMENT; MAR- RIAGE. CONGESTION OF TRAFFIC. See CARRIERS OF GOODS. CONSCRIPTION. See ARMY AND NAVY, CONCEALMENT OF FACTS. See EXECUTORS AND ADMINISTRATORS. CONCRETE TANKS. Persons contracting to build concrete tank as independent contractor, 1918C-655. CONDEMNATION. See EMINENT DOMAIN. CONDITIONAL SALES. Conditional sale as within purview of. Uni- form Sales Act, 1918D-408. Right of recovery for property sold and de- livered conditionally when property is destroyed without fault of purchaser be- fore price falls due, 1918D-381. CONDITIONAL SIGNING. See SURETYSHIP. CONDITIONAL SUBSCRIPTION. See STOCK AND STOCKHOLDERS. CONDITIONS. See FIRE INSURANCE. . CONSECUTIVE SERVICE. See PUBLIC OFFICERS. CONSIDERATION. See SURETYSHIP. CONSORTIUM. See HUSBAND AND WIFE. CONSTITUTIONAL LAW. Army and Navy: compulsory military serv- ice, 1918D-100. Attorneys: validity and construction of stat- ute limiting amount of attorney's fee for collection of claim against federal gov- ernment, 1918C-863. Business: validity of statute or ordinance re- quiring place of business (other than liquor saloon) to close at certain hour, 1918D-200. Corporations: validity and effect of provi- sion in charter statute, or by-law creat- ing lien on stock in favor of corporation, 1918D-36S. Divorce: validity and construction of statute requiring service of notice on public of- ficial in divorce suit, 1918D-1098. Elections: constitutional or statutory provi- sions relating to elections as applicable to primary elections, 1918E-79. h validity and construction of statute regu- lating contribution by person other than candidate to election expenses, 191SE- 173. validity of municipal authorization of woman suffrage, 1918C-906. CUMULATIVE INDEX TO NOTES. 241 Explosions and explosives: validity of ordi- nance regulating keeping of gasolene or other explosive within municipal limits, 1918E-145. Hawkers and peddlers: validity of license tax or fee imposed on hawker or peddler as regards uniformity, 1918E-109. Indictments: validity and construction of statute prescribing form of indictment, 1918C-551. Initiative and referendum: constitutionality of initiative and referendum provisions either in state constitutions or municipal charters, 1918D-604. validity of statute other than local option law, which takes effect only upon rati- fication by voters, 1918E-573. Insurance: validity of statute delegating to officer or board regulation of insurance companies, 1918E-479. Intoxicating liquors: validity of statute mak- ing possession of federal license prima facie evidence of violation of liquor law, 1918D-775. Labor: validity of statute fixing minimum ' wage rate for private employment, 1918D-465. Local option: constitutionality of local op- tion laws, 1918E-874. Picketing: validity of statute or ordinance prohibiting picketing, 1918E 54. Public officers: validity and construction of statute limiting consecutive service by public officer, 1918E-358. Statutes: impeachment of act of legislature l>y reference to legislative journals, 1918D-253. right of ministerial officer to question validity of statute, 1918D-1199. Sunday laws as directed against particular occupations, 1918E-1170. Taxation: power of municipal corporation to grant exemption from taxation, 1918E- 1088. validity of special assessment levied by front foot instead of according to bene- fit, 1918D-432. Tips: validity and construction of anti-tip- ping act,' 1918D-238. Weights and measures: validity of legisla- tion for prevention of fraud in weights and measures, 1918D-156. See also TELEGRAPHS AND TELEPHONES. CONSTRUCTION. See CONTRACTS; CRIMINAL LAW: DIVORCE; GUARANTY -. HOURS OF SERVICE ACTS ; IN- SURANCE: INTOXICATING LIQUORS; LAND- LORD AND TENANT; PUBLIC OFFICERS; SALES . STATUTES : STOCK AND STOCK- HOLDERS: TIPS; WORKMEN'S COMPENSA- TION ACTS. CONSTRUCTIVE EVICTION. See LANDLORD AND TENANT. Ann. Cas. Dig. 1918C-E. 16. CONTEST. See WILLS. CONTIGUOUS. Meaning of term "contiguous," 1918E-798. CONTINUING GUARANTY. See GUARANTY. CONTRACTS. "About:" meaning of "about" in contract when used with reference to quantity, 1918D-693. Alien enemies: contract rights of alien enemy, 1918C-713. Breach of contract: carrying side line as breach of contract by traveling sales- man, 1918C-952. Building contracts: assignment of proceeds of contract by building contractor, sub- contractor or materialman, 1918D-609. loan of money to contractor as giving right to mechanic's lien or to recovery on contractor's bond, 1918D-350. Implied contracts: what constitutes implied contract to pay broker for sale, lease or mortgage of real estate, 1918C-1064. "Pro rata:" meaning of "pro rate" or "pro rata," as used in contract, 1918C-792. Rescission of contract: necessity that aban- donment or rescission of written con- tract for sale of goods be in writing, 1918C-1213. United States: rights with respect to annul- ment, suspension or modification of, or additional compensation under, contract with United States government, 1918E- 5. Validity: contract entered into by intoxi- cated person as void or voidable, 1918E 330. rights of parties under deed or contract by married woman invalid for defective ac- knowledgment, 1918E-648. rights of parties under deed or contract by married woman invalid for want of ac- knowledgment, 1918E-631. validity and enforceability of agreement by parties interested to dispense with pro- bate of will, 1918E-1218. validity and enforcement of contract by carrier to carry goods at discriminating rate fixed by mistake, 1918E-458. validity of agreement by seller of cor- porate stock to repurchase on demand, 1938D-744. validity of contract intended to facilitate procuring of divorce, 1918E-902. validity of contract made to induce mar- riage between third persons, 1918C-820. validity of contract provision as to inter- est other than provision fixing usurious rate, 1918E-747. validity of "endless chain" or "Bohemian Oats" contract, 1918D-476. 242 . CAS DIGEST (1918C-1918E). Validity: validity of provision in employers' liability insurance contract giving in- surer control of settlement, 1918C-405. Voting contest: fraud in voting or guessing contest, 1918C-750. See also BENEFICIAL ASSOCIATIONS; EASE- MENTS; FRAUDS, STATUTE OF; INDEPEND- ENT CONTRACTORS ; INSURANCE; LAND- LORD AND TENANT; MARRIAGE; MASTER AND SERVANT; MECHANICS' LIENS; MONEY HAD AND RECEIVED; SALES; SPECIFIC PERFORMANCE. CONTRIBUTION. Contribution between legatees or devisees on renunciation of will by widow, 1918C- 415. Running of statute of limitations againat contribution between sureties, 1918E- 518. CONTRIBUTIONS. See ELECTIONS. CONTRIBUTORY NEGLIGENCE. Contributory negligence as affecting liability of railroad company for personal injury resulting from fire,* 1918E-829. Contributory negligence as affecting liabil- ity of sportsman for shooting another while hunting, 1918C-389. Contributory negligence of passenger in rid- ing or standing on running board of open street car, 1918C-445. Presence of electric bell or similar device at railroad crossing as excusing traveler from duty to look and listen, 1918D-388. CONVERSION. Unauthorized use of chattel by bailee as con- version, 1918C-948. CONVEYANCES. See DEEDS. CORONERS. What is "necessary expense" incurred by coroner, 1918D-926. CORPORATIONS. Alien enemies: corporation as alien enemy, 1918C-710. Officers: statutory liability of officer for debts of corporation as affected by change of officers, 1918D-796. Quo warranto: joinder of corporation as party in quo warranto proceeding, 1918D-222. Qua warranto: proper parties defendant in quo warranto proceedings against cor- poration, 1918D-228. Stock and stockholders: admissitulity of parol evidence to show that subscription to stock was conditional, 1918C-853. right of minority stockholder or stock- holders to maintain suit to wind up or dissolve corporation, 1918E-424. right of stockholder to compel duplication of lost certificate, 1918E-66. right to injunction against execution sale of corporate stock, 1913C-213. validity and construction of agreement by seller of corporate stock to repurchase on demand, 1918D-744. validity and effect of provision in charter, statute, or by-law creating lien on stock in favor of corporation, 1918D-368. See also RELIGIOUS SOCIETIES. CORROBORATION. See SEDUCTION. CORRUPT PRACTICES ACTS. See ELECTIONS. COSTS. See WILLS. COUNSEL. See CRIMINAL LAW. COUNTIES. What is "necessary expense" in connection with administration of county affairs, 1918D-926. COUNTY CLERKS. What is "necessary expense" incurred by county clerk, 1918D-926. COURTS. Jurisdiction of action to enjoin execution sale. 1918C-277. Jurisdiction of court of action against for- eign sovereign or foreign state, 1918E- 527. Jurisdiction of court to entertain suit to dis- solve corporation at instance of minority stockholder, 1918E-424. . Power of courts of equity to enjoin elections. 1918E-1153. Right of court to review action of church au- thorities in disciplining member, 1918C- 622. jva; See also BENEFICIAL ASSOCIATIONS; JUDGES; LIBEL AND SLANDER. CUMULATIVE INDEX TO XOTES. 243 COVENANTS. Outstanding special assessment as breach of covenant against incumbrancea, 1918D 975. Right of lessee to enforce covenant to pay for improvements or repairs against suc- cessor of reversion, 1918D-1180. CREDITORS. See ATTACHMENT: DEBTOR AND CREDITOR; JUDGMENTS; SURETYSHIP. CRIMINAL LAW. "Army and navy:" offenses against conscrip- tion law. 1018D-100. Bail : deposit of money in lieu of bail in criminal cases, 1918D, 536. Counsel: right of accused person to benefit of counsel before pleading, 1918D-287. Dying declarations : admissibility of dying declaration on behalf of defendant, 1918C-425. Extradition: right after international ex- tradition to try prisoner for crime not designated in requisition. 1918D-1030. who is fugitive from justice within pur- view of interstate extradition laws, 1918D 1011. Indictment and information: meaning of "about'' in indictment or information when used with reference to quantity, 1918D-706. validity and construction of statute pre- scribing form of indictment, 1918C-551. Intoxicating liquors: possession of federal license as evidence of violation of liquor law, 1918D-775. Libel and slander : necessity that justification of charge of commission of crime be justification of precise charge, 1918C- 1133. Seduction : necessity in criminal prosecution for seduction that female should be cor- roborated, and elements to which cor- roboration must extend, 1918E-468. See also CABBIERS OF PASSENGERS. CULTIVATION. Failure to cultivate land as waste, 1918D- 543. CUSTODIAN OF ENEMY PROPERTY. Powers and duties of custodian of enemy property, 1918C-713. CUSTODY OF LAW. Right to injunction against execution sole of property in custody of law, 1918C-230. DAMAGES. Carriers of goods: measure of damages for carrier's delay in transporting property intended for exhibition purposes, 1918E- 1057. Carriers of passengers: measure of damages recoverable from carrier for larceny from or robbery of passenger by stranger, 1918E-586. Dentists: measure of damages recoverable against dentist for injuries to patient, 1918C-1192. Injunctions: duty of injured party to mini- mize damages resulting from improper suing out of injunction, 1918C-673. liability for damages for wrongful issu- ance of injunction against execution sale, 1918C-315. Personal injuries: humiliation or mortifica- tion on account of disfigurement as ele- ment of damages recoverable for per- sonal injuries, 1918D-65. Uniform sales act: measure of damages for breach of contract of sale under uniform sales act, 1918D-400. DEAD BODIES. Evidence admissible to establish identity of dead body, 1918C-697. Right of property in dead bodies of human beings, 1918D-733. CROPS. Removing crops as waste. 1918D-543. CROSS-EXAMINATION. See WITNESSES. DEATH. Facts which must be shown in connection with absence to establish presumption of death, 1918D-758. Presumption of death on issue of validity of subsequent marriage, 1918E-1236. Validity of provision in will relating to survivorship in common disaster, 1918D- 842. CROSSINGS. DEATH BY WRONGFUL ACT. See CARRIERS OF PASSENGERS; RAILROADS; STREETS AND HIGHWAYS. Divorce as affecting right of child to recover for death of parent, 1918E-419. AN.N*. CAS DIGEST (1918C-1918E). Effect of recovery for death by wrongful act on rights of posthumous child of de- ceased, 1918D-556. DELAY IN TRANSPORTATION. See CABBIEBS OF GOODS. DEATH CERTIFICATES. Physician's death certificate as evidence, 1918C-761. DEBT DUE. Legal meaning of "debt due," 1918E-788. DELIBERATIONS. See JCBT. DEPOSITIONS. Identification of exhibit referred to in de- position, 1918E-282. DEBT DUE IN SAME RIGHT. Legal meaning of "debt due in same right," 1918E-789. DEBTOR AND CREDITOR. Right of creditor to enjoin execution sale, 1918C-262. Rights and liabilities of alien enemy with respect to pre-existing debt, 1918C-713. See also ATTACHMENT; COBPOBATIONS ; JUDG- MENTS; SURETYSHIP. DECEDENTS' ESTATES. See ADVANCEMENTS; EXECUTORS AND AD MINISTBATIOBS ; WITNESSES. DECLARATIONS. See ADMISSIONS AND DECLARATIONS; DYING DECLABATIONS. DECREE OF DISTRIBUTION. See EXECUTOBS AND ADMINISTBATOBS. DEEDS. Accretions: conveyance as including prior accretion, 1918E-244. Acknowledgment: rights of parties under deed or contract by married woman in- valid for defective acknowledgment, 1918E-648. rights of parties under deed or contract by married woman invalid for want of ac- knowledgment, 1918E-831. Covenants: outstanding special assessment as breach of covenant against incum- brances, 1918D-975. Deed as mortgage: effect of lapse of time on right to have deed declared mortgage, 1918C-755. Reformation: right to reform description in deed or mortgage as against purchaser without notice, 1918D-147. See also EASEMENTS; Lis PENDENS. DEPOSIT OF MONEY. See BAIL. DEPOTS. See RAILROADS. DESCENT AND DISTRIBUTION. See ADVANCEMENTS. DESCRIPTION. See DEEDS; MUNICIPAL CORPORATIONS. DESCRIPTIVE WORDS. See STATUTES. DESTRUCTION OF PROPERTY. See CONDITIONAL SALES. DEVIATION. See CAEBJEBS OF GOODS; CABSIEBS OF LIVB STOCK. DEVISEES. Right of devisee to enjoin execution Bale, 1918C-260. See also EQUITABLE ELECTION. DISABILITY. See INSUBANOB. DISASTER. See SURVIVORSHIP. CUMULATIVE INDEX TO NOTES. 245 DISBARMENT. See ATTORNEYS. DISCIPLINE. See RELIGIOUS SOCIETIES. DISCLOSURE. See JURY DISCRIMINATION. See CARRIERS OF GOODS; INSUBANOB. DISFIGUREMENT. See DAMAGES. DISINTERMENT. See DEAD BODIES. DISPLAYING NUMBER. See AUTOMOBILES. DISSOLUTION. See CORPORATIONS: PARTNERSHIP; RELIGIOUS SOCIETIES. DISTRIBUTEES. Right of distributee to enjoin execution sale, 1918C-260. Death by wrongful act: divorce as affecting right of child to recover for death of parent, 1918E-419. Remarriage: effect of marriage within pro- scribed time after divorce, 1918E-557. extraterritorial effect of divorce decree or statute prohibiting remarriage of party or parties, 1918E-1074. presumption of divorce on issue of valid- ity of subsequent marriage, 1918E-1237. Statutes: validity and construction of stat- ute requiring service of notice on public official in divorce suit, 1918D-1098. Support of children : liability of father for support of children after divorce decree in his favor not providing for custody or maintenance of children, 1918C-939. Witnesses: effect of divorce on competency of husband or wife as witness, 1918E-193. DOORS. See CARRIERS OF PASSEXGEBS. DOUBLE TRACK. Meaning of "double track," 1918E-243. DRAINAGE. Digging drain in land as waste, 1918D-543. Person contracting to construct sewer or lay sewer pipe as independent contractor, 1918C-668. DRUGGISTS. Rights and liabilities of druggist selling liq- uor on prescription by physician, 1918E- 923. DISTRIBUTION OF ESTATE. See EXECUTORS AND ADMINISTRATORS. DISTRICT ATTORNEYS. What is "necessary expense" incurred by dis- trict attorney, 1918D-927. DISTRICT OF COLUMBIA. Power of United States to condemn land in District of Columbia.. 1918E-43. DIVORCE. Contracts: validity of contract intended to facilitate procuring of divorce, 1918E- 902. DRUMMERS. See AGENCY. DRUNKENNESS. Contract entered into by intoxicated person as void or voidable, "1918E-330. DUE. Legal meaning of "due," 1918E-756. DUE AND OWING Legal meaning of "due and owing," 1918E- 782. 246 A NX. CAS. DIGEST (1918C-1918E). DUE AND PAYABLE. Legal meaning of "due and payable," 1918E- 784. DUE DATE. Legal meaning of "due date," 1918E-785. DUE IN FULL. Legal meaning of "due in full," 1918E-785. DYING DECLARATIONS. Admissibility of dying declaration on behalf of defendant, 1918C-425 EARNINGS. See INSUFFICIENCY OF EARNINGS. .EASEMENTS. Meaning of term "necessary" as applied to easement, 1918D-931. Validity of conveyance of specific right or easement in land by one tenant in com- mon, 1918C-92. ELECTIONS. Campaign' contributions: validity and con- struction of statute regulating contribu- tion by person other than candidate to election expenses, 1918E-173. Injunctions: power of courts of equity to en- join elections, 1918E-1153. Notice of election: meaning of "about" in notice of election when used with ref- erence to quantity, 1918D-706. Primaries: constitutional or statutory provi- sions relating to elections as applicable to primary elections, 1918E-79. Withdrawal of candidacy for public office, 1918E-362. Woman suffrage: validity of municipal au- thorization of woman suffrage, 1918C- 906. ELECTRIC BELLS. See RAILROADS. ELECTRICITY. Liability of electric company for injuries resulting from one of its \vires charging wire of other company or person, 1918C- 916. Liability of electric company maintaining wires in close proximity to those of an- other company for injury to employee of latter company, 1918D-4. Liability of one maintaining electric wires over private property, as distinguished from highway, for injuries received by adult coming in contact therewith, 1918C-594. Person employed in connection with electrical work as independent contractor, 1918C- 655. ELEVATORS. Person contracting to repair or install ele- vator as independent contractor, 1918C- 655. EMBEZZLEMENT. Construction of statute prescribing form of indictment for embezzlement, 1918C-558. Necessity that justification of charge of em- bezzlement be justification of precise charge, 1918C-1135. EMERGENCY. Emergency as excuse for failure to comply with federal hours of service act, 1918C- 811. EMINENT DOMAIN. Condemnation of land for public library, 1918E-122. Construction of public lavatory in street as constituting nuisance or as entitling abutting owner to compensation, 1918D- 906. Nature and extent of power of United States to condemn land, 1918E-39. What is "necessary expense" incidental to condemnation proceeding, 1918D-024. EMPLOYERS' LIABILITY INSUR- ANCE. Effect of binding slip or receipt as employers' liability insurance contract, 1918C-375. Validity and construction of provision in em- ployers' liability insurance contract giv- ing insurer control of settlement, 1918C- 405. EMPLOYMENT. See LABOB LAWS; MASTER AND SERVANT. "ENDLESS CHAIN" CONTRACTS. See ILLEGAL CONTRACTS. CUMULATIVE INDEX TO NOTES. 247 ENEMIES. See WAB. EQUITABLE ELECTION. Effect of widow's renunciation of will on rights of other legatees or devisees, 1918C-412. EQUITABLE INTEREST. See BON A FIDE PURCHASES. EQUITABLE TITLE. 8ee FIRE INSURANCE. EQUITIES. See MORTGAGES. EQUITY. See INJUNCTIONS. ESTABLISHMENT. See LABOB LAWS. ESTOPPEL. Estoppel of employer to assert independence of employee, 1918C-632. Estoppel to deny validity of instrument by married woman on ground of defective acknowledgment. 1918E-651. Estoppel to deny validity of instrument by married woman on ground of want of acknowledgment, 1918E-63G. Receipt of payment under contract with United States as estopping contractor to claim additional compensation, 1918E- 17. Right of bailee to deny title of bailor, 1918E-1201. See also BENEFICIAL ASSOCIATIONS. EVICTION. See LANDLORD AND TENANT. EVIDENCE. Admissions and declarations: admiasibility and collusiveness against pleader, in subsequent action with stranger, of ad- mission in pleading, 1918E-549 admissibility of declarations of testator upon issue of revocation of will which cannot be found. 1938E-370. Admissions and declarations: admissibility of statement of fact made in connection with offer of compromise, 1918C-439. declarations or written statements made by insured previous to death as evidence of suicide, 1918C-1050. failure of party to civil action to reply to oral statement as implied admission, 1918C-9. propriety of cautionary instruction rela- tive to consideration of verbal admis- sion, 19]8D-298. Age: recital in public record as proof of age, 1918E-266. Burden of proof: burden of proof as to validity of subsequent marriage, 1918E- 1233. burden of proof in action to enjoin execu- tion sale, 1918C-304. burden of proof of existence of relation of independent contractor, 1918C-632. Dead bodies: evidence admissible to estab- lish identity of dead body, 1918C-697. Death certificates: physician's death certifi- cate as evidence, 1918C-761. Dentists: evidence in action against dentist for injuries to patient, 1918C-1191. Depositions: identification of exhibit referred to in deposition, 1918E-282. Dying declarations: admissibility of dying declaration on behalf- of defendant, 1918C-425. Intoxicating liquors: admissibility of evi- dence of possession of federal license in prosecution for violation of liquor law, 1918D-775. Parol evidence: admissibility of parol evi- dence to show that subscription to stock was conditional, 1918C-S53. Presumptions : facts which must be shown in conjunction with absence to establish presumption of death, 1918D-758. presumption as to existence of relation of independent contractor, 1918C-632 presumption as to validity of subsequent marriage, 1918E-1233. validity of provision in will creating pre- sumption with respect to survivorship in common disaster, 1918D-842. Verdict : affidavits of jurors as evidence that verdict returned or entered differed from verdict actually found, 1918E-287. Weight and sufficiency: conclusiveness of li- cense registry as to ownership of motor vehicle, 1918E-737. weight of evidence of possession of federal license in prosecution for violation of liquor law, 1918D-775. EXCAVATIONS. Person employed in connection with excavat- ing or filling as independent contractor, 1918C-655. EXCEPTIONS. See STATUTES. 248 AXX. CAS DIGEST (1918C-191&E ). EXCHANGE OF LAND. Meaning of "about" in contract to exchange land when used with reference to quan- tity, 1918D-704. Specific performance of contract to exchange land, 1918D-717. EXCISE COMMISSIONERS. What is "necessary expense" incurred by board of excise commissioners, 1918D- 921. EXECUTIONS. Injunction against execution sale, 1918C- 152. EXECUTORS AND ADMINIS- TRATORS. Concealment of facts as affecting running of limitations against right to attack dis- tribution of decedent's estate, 1918D- 316 Right of personal representative to enjoin execution sale, 1918C-260. What constitutes renunciation of trust by ex- ecutor or testamentary trustee, 1918D- 459. What is "necessary expense" in administering estate of decedent, 1918D-923. When interest is chargeable in advancement in distribution of testate estate, 1918E 287. See also RES JUDICATA; WILLS. EXISTENCE. See RELIGIOUS SOCIETIES. EXONERATION. See STREETS AND HIGHWAYS. EXPIRATION OF CHARTER. Expiration of charter as ground for disso- lution of corporation at instance of minority stockholder, 1918E-426. EXPLOSIONS AND EXPLOSIVES. Validity of ordinance regulating keeping of gasolene or other explosive within mu- nicipal limits, 1918E-145. EXTENSION OF TIME. See SURETYSHIP. EXTRADITION. Right after international extradition to try prisoner for crime not designated in req- uisition, 1918D-1030. Who is fugitive from justice within purview of interstate extradition laws, 191 8D- 1011. EXEMPTIONS. Meaning of term "necessary" as used in ex- emption statute, 1918D-173. Right to injunction against execution sale of exempt property, 1918C-215. See also TAXATION-. EXERCISES. See SCHOOLS. EXHAUSTING LAND. Exhausting land as waste, 1918D-543. EXHIBITIONS. See CABBIERS OF GOODS; THEATERS AND AMUSEMENTS. EXHIBITS. Identification of exhibit referred to in de- position, 1918E-282. EXTRATERRITORIAL OPERATION. See DIVORCE: MARRIAGE. FAILURE OF PURPOSE. Failure of purpose as ground for dissolution of corporation at instance of minority stockholder, 1918E-427. FAILURE TO REPLY. See ADMISSIONS AND DECLARATIONS. FALSE PRETENSES. Construction of statute prescribing form of indictment for false pretenses, 1918C- 558. FARES. See TICKETS AND FARES. CUMULATIVE INDEX TO NOTES. 249 FAHMS. Changing park into farm as waste, 1918D-! 543. FATHER. See PARENT AND CHILD. FEDERAL BOILER INSPECTION ACT. See MASTER AND SERVANT. Landlord and tenant: construction of agree- ment by lessee to insure premises against fire, 1918E-299. FIRES. Liability of licensee in possession of prop- erty for damage thereto by tire, 1918D- 378. Liability of railroad company to person other than passenger for personal injury resulting from sparks or fire set by en- gine, 1918E-815. FEDERAL GOVERNMENT. See GOVERNMENT. FEDERAL LICENSES. Bee INTOXICATING LIQUORS. FEDERAL STATUTES. See GOVERNMENT; HOURS OF SERVICE ACTS; INTERSTATE COMMERCE; TELEGRAPHS AND TELEPHONES. FEES. See LICENSES. FERRIES. Liability of owner of ferry to passengers, 1918E-1083. FIRE INSURANCE. Cancellation of policy: when cancellation of fire insurance policy at instance of in- sured becomes effective, 1918C-120. Construction of policy: fire insurance policy as covering profits, 1918E-1051. giving of chattel mortgage as assignment or change of interest of insured within prohibition in fire insurance policy, 1918D-862. necessity of exact compliance with iron- safe clause in insurance policy. 1918E 387. possession of equitable title only as satis- fying requirement in fire insurance policy of sole and unconditional ownership by insured, 1918C-136. vendee under executory contract of pur- chase as sole and unconditional owner of property under fire insurance policy, 19180-143. what constitutes "keeping," "storing," "us- ing." etc., of prohibited articles within fire insurance policy, 1918D-294. FISH AND GAME. Fisherman as independent contractor, 1918C- 656. FIXTURES. Eight to injunction against execution sale of fixtures, 1918C-214. FLOODING LAND. Flooding land as waste, 1918D-543. FOOD AND DRUGS. Cold storage of food, 1918C-895. FOREIGN GOVERNMENTS, See INTERNATIONAL LAW. FORFEITURES. See BENEFICIAL ASSOCIATIONS. FORGERY. Necessity that justification of charge of for- gery be justification of precise charge, 1918C-1136. FRATERNITIES. See SCHOOLS. FRAUD. Corporations: fraud as ground for dissolu- tion of corporation at instance of minor- ity stockholder, 1918E-430. Executors and administrators: concealment of facts as affecting running of limita- tions against right to attack distribu- tion of decedent's estate, 1918D-316. A_N'i\. CA!S DIGEST (19180-191Ej. Judgments: right to enjoin execution sale under judgment obtained by fraud, 1918C-244. Master and servant: fraud of servant as de- fense or set-off in action for wages, 1918D-79. Partnership: fraud as affecting running of statute of limitations against action be- tween partners for accounting^ and settle- ment after dissolution, 1918D-1117. Trusts and trustees: setting aside trust dur- ing life of creator for fraud, 1918C-836. Voting contests: fraud in voting or guessing contest, 1918C-750. Weights and measures: validity of legisla- tion for prevention of fraud in weights and measures, 1918D-156. See also MISBEPBESENTATIONS. FRAUDS, STATUTE OF. Construction of provision of uniform sales act requiring written memorandum of contract of sale, 1918D-412. Contract for joint purchase of goods from third person as within statute of frauds, 19180-744. Necessity that abandonment or rescission of written contract for sale of goods be in writing, 1918C-1213. Right of purchaser to recover money paid under verbal contract for sale of land, 1918O432. Validity and enforceability of parol contract partly within statute of frauds, 1918E- 498. GAMING. From whom recovery may be had of money lost in gaming, 1918E-138. Set-off of prior winnings in action to re- cover money lost at gaming, 1918C-771. GARBAGE. Person employed in connection with garbage collection as independent contractor, 1918C-656. GARDENS. Changing meadow into garden as waste, 1918D-543. GARNISHMENT. Effect of payment of judgment by garnishee on liability to principal defendant in another jurisdiction, 1918C-829 GAS. See MINES AND MINEBALS. GASOLENE. Validity of ordinance regulating -keeping of gasolene within municipal limits, 1918E- 145. FRAUDULENT SALES AND CONVEY- ANCES. Transfer to creditor in payment of or aa security for sum greater than is actual- ly due as rendering transaction fraudu- lent, 1918E-713. FREIGHT DUE. Legal meaning of "freight due," 1918E-789. FRONT FOOT RULE. See TAXATION. GOOD HEALTH. See INSURANCE. GOVERNMENT. Validity and construction of statute limiting amount of attorney's fee for collection of claim against federal government, 1918C-863. GRADUATING EXERCISES. See SCHOOLS. FUGITIVE FROM JUSTICE. See EXTRADITION. GRANDCHILDREN. See INFANTS. FURNITURE. See HOUSEHOLD FUBNITUBB. GRAND JURY. Report of grand jury as privileged within law of libel. 1918E-1196. CUMULATIVE IXDEX TO NOTES. GROW DUE. HIGHWAYS. Legal meaning of "grow due," 1918E-789. See STREETS AND HIGHWAYS. 251 GUARANTY. Distinction between continuing and limited guaranties, 1918E-609. GUARDIANS. What is "necessary expense" in administer- ing estate under guardianship, 1918D- 921. GUESTS. See INNKEEPERS. HABITS. Waiver of forfeiture of benefit certificate for misrepresentation as to habits, 1918D- 306. HAULING. Person employed in connection with trucking or hauling as independent contractor, 1918C-658. HAWKERS AND PEDDLERS. Validity of license tax or fee imposed on hawker or peddler as regards uniformity, 1918E-109. HAY. See AGRICULTURE. HEALTH. Waiver of forfeiture of benefit certificate for misrepresentation as to health, 1918D- 306. HEALTH INSURANCE. Meaning of term "confined to house" or sim- ilar phrase in accident or health insur- ance policy, 1918C-531. HOMESTEAD. Person acquiring homestead as purchaser pendente lite, 1918C-6. Right to injunction against execution sale of homestead, 1918C-215. HOMICIDE. Admissibility of dying declaration on behalf of defendant, 1918C-425. Construction of statute prescribing form o.f indictment for homicide, 1918C-558. HOSPITALS. Liability of municipality for negligence in respect to condition of or performance of services incident to hospital, 1918D- 803. HOURS OF LABOR. See LABOR LAWS. HOURS OF SERVICE ACTS. Construction of Federal Hours of Service Act, 1918C-797. HOUSEHOLD FURNITURE. Meaning of "necessary" household furniture as used in exemption statute, 1918D-174. HOUSES. "Village" as meaning assemblage of houses, 1918D-259. HUMILIATION. See DAMAGES. HUNTING. See WEAPONS. HEATING PREMISES. See LANDLORD AND TENANT. HEIRS. Right of heir to enjoin execution sale, 1918C- 260. HUSBAND AND WIFE. Actions: right of one spouse to maintain civil action at law against the other, 1918C-777. right of wife, in absence of statute, to main- tain action for injury to or loss of con- tcrtmni, 1918D-208.* 252 AXX. CAS DIGEST (1918C-191M-: i. Admissions and declarations: statement by spouse, made in presence of and not (it-nied by other spouse, as implied ad- mission, 1918C-34. Community property: injunction against ex- ecution sale of community property, 1918C-152. purchaser of community property as bona fide purchaser, 1918C-469. Entirety: injunction against execution sale of property held by entireties, 1918C- 152. Purchasers pendente lite: person acquiring interest through marriage as purchaser pendente lite, J918C-53. Separate property of wife: injunction against execution sale of property of wife, 1918C- 152. rights of parties under deed or contract bv married woman invalid for defective acknowledgment, 1918E-648. rights of parties under deed or contract by married woman invalid for want of ac- knowledgment, 1918E-631. Witnesses: effect of divorce on competency of husband or wife as witness, 1918E-193. See also DIVORCE; MABBIAGE. "Endless chain:" validity <>i endless chain" contract, 1918D-476* Insurance: agreement between insured and insurer discriminating in favor of former as against other policy holders 1918D- 504. validity of provision in employers' liability insurance contract giving insurer con- trol of settlement, 1918C-405. Interest: validity of contract provision as to interest other than provision fixing usuri- ous rate, 1918E-747. Intoxication: contract entered into by intoxi- cated person as void or voidable, 1918E- 330. Tenents in common: validity of conveyance of specific right or easement in land by one tenant in common, 1918C-92. Wills: validity and enforceability of agree- ment by parties interested to dispense wfth probate of will, 1918E-1218. See also FRAUDS, STATUTE OF; MABBIAGE. ILLUSTRATION. See INSURANCE. IDEM SONANS. See NAMES. IDENTIFICATION. See EXHIBITS. IDENTITY. See DEAD BODIES; EES JUDICATA. ILLEGAL ACTS. Illegal acts as ground for dissolution of corporation at instance of minority stock- holder, 1918E-430. ILLEGAL CONTRACTS. Acknowledgment: rights of parties under deed or contract by married woman in- valid for defective acknowledgment, 1918E-648. rights of parties under deed or contract by married woman invalid for want of ac- knowledgment, 1938E-631. "Bohemian oats:" validity of "Bohemian oats" contract, 1918D-476. Carriers of goods: validity and enforcement of contract by carrier to carry goods at discriminating rate fixed by mistake, 1918E-458. Corporations: validity of agreement by seller of corporate stock to repurchase on de- mand, 1918D-744. Divorce: validity of contract intended to fa- cilitate procuring of divorce J918E-902. IMPEACHMENT. See ABBITRATION AND AWARD; REFEBEES; STATUTES. IMPLEMENTS. See TOOLS. IMPLIED ADMISSIONS. See ADMISSIONS AND DECLARATIONS. IMPLIED CONTRACTS. What constitutes implied contract to pay broker for sale, lease or mortgage of real estate, 1918C-1064. IMPLIED TRUSTS. See TRUSTS AND TRUSTEES. IMPROVEMENTS. Right of lessee to enforce covenant to pay for improvements or repairs against suc- cessor of reversion, 1918D-1180. See also PUBLIC IMPROVEMENTS. INCOME. See TRUSTS AND TRUSTEES. CUMULATIVE INDEX TO XOTES. INCORPORATED VILLAGES. "Village" as meaning incorporated village, 1918D-262. INCUMBRANCES. See COVENANTS. INDEMNITY. See LOST INSTRUMENTS. INDEPENDENT CONTRACTORS. Who is an independent contractor, 1918C- 627. INDIANS. Common-law marriages between Indians, 1918E-380. Validity and construction of statute limiting amount of attorney's fee for collection of Indian depredation claim against fed- eral government, 1918C-869. INDICTMENT. See CRIMINAL LAW. INDIGNITIES. See INNKEEPERS. INDIVIDUAL CAPACITY. See RES JUDICATA. INFANTS. Term "child" or children" in statute as in- cluding grandchild or grandchildren, 1918E-1004. See also DEATH BY WRONGFUL ACT; PARENT AND CHILD; INFORMATION. Bee CRIMINAL LAW. INITIATIVE AND REFERENDUM. Constitutionality of initiative and referendum provisions either in state constitutions or municipal charters, 1918D-604. Validity of statute, other than local option law. which takes effect only upon rati- fication bv voters. 1918E-573. INJUNCTIONS. Duty of injured party to minimize damages resulting from improper suing out of injunction, 1918C-673. Entry of summary judgment against surety on injunction bond, 1918C-97. Injunction against execution sale, 1918C-152. Power of courts of equity to enjoin elections, 1918E-1153. INJURY TO LAND. See EMINENT DOMAIN. INNKEEPERS. Liability of carrier as innkeeper for larceny from or robbery of passenger by stranger, 1918E-589. Liability of innkeeper for insult or indignity to guest, 1918E-255. INNOCENCE. Presumption of innocence on issue of valid- ity of subsequent marriage, 1918E 1234. INSANITY. See LIBEL AXD SLANDER. INSOLVENCY. Insolvency as ground for dissolution of cor- poration at instance of minority stock- holder, 1918E-427. INSPECTION OF BOILERS. See MASTER AND SERVANT. INSTRUCTIONS. Propriety of cautionary instruction relative to consideration of verbal admission, 1918D-298. INSUFFICIENCY OF EARNINGS. Insufficiency of earnings as ground for dis- solution of corporation at instance of minority stockholder, 1918E-426. INSULTS. See INNKEEPERS. 254 ANX. CAS DIGEST (1918C-1918E). INSURANCE. Accident insurance: construction of "total . disability" clause in accident insurance policy, 1918C-113. meaning of term ''confined to house" or sim- ilar phrase in accident insurance policy, 1918C-531. Agents: liability of agent to insurance com- pany for failure to cancel or reduce pol- icy as directed, 1918C-1043. Benefit insurance : construction of representa- tion tliat person applying for reinstate- ment of insurance is "in good health," 1918D-1005. recourse to courts by members of benevo- lent, beneficial and similar associations to protect property rights, 1918E-1178. Avaiver of, or estoppel to deny, forfeiture of benefit certificate for violation of con- tract of insurance other than failure to pay assessments or dues, 1918D-305. Contract of insurance: advertisement, illus- tration, or the like, as part of insurance contract, 1918E-889. agreement between insured and insurer dis- criminating in favor of former as against other policyholders, 1918D-504. Employers' liability insurance: effect of bind- ing slip or receipt as employers' liability insurance contract, 1918C-375. validity and construction of provision in employers' liability insurance contract giving insurer control of settlement, 1918C-405. Fire insurance: construction of agreement by lessee to insure premises against fire, 1918E-299. fire insurance policy as covering profits, 1918E-1051. giving of chattel mortgage as assignment _ or change of interest of insured within prohibition in fire insurance policv, 1918D-862. meaning of term "contiguous" as used in fire insurance policy. 1918E-800. meaning of term "machinery" as used in fire insurance policy, 1918E-209. necessity of exact compliance with iron- safe clause in insurance policy, 1918E- 387. possession of equitable title only as satis- fying requirement in fire insurance pol- icy of sole and unconditional ownership by insured, 1918C-136. vendee under executory contract of pur- chase as sole and unconditional owner of property under fire insurance policy, 1918C-143. what constitutes "keeping," "storing," "using," etc., of prohibited articles within fire insurance policy, 1918D-294. when cancellation of fire insurance policy at instance of insured becomes effective, 1918C-120. Health insurance: meaning of term "con- fined to house" or similar phrase in health insurance policy, 1918C-531. Life insurance: construction of representa- tion that person applying for reinstate- ment of insurance is "in good health," 1918D-1005. declarations or written statements made by insured previous to death as evidence of suicide, 1918C-1050. physician's death certificate as evidence in action on life insurance policy, 1918C- 761. rights and liabilities of alien enemy with respect to life insurance contract, 1918C- 714. Statutor}- regulation : validity of statute delegating to officer or board regulation of insurance companies, 1918E-479. INTEREST. Liability of public officer for interest received on public funds, 1918E-105. Validity of contract provision as to interest other than provision fixing usurious rate, 1918E-747. When interest is chargeable on advancement in distribution of testate estate, 1918E- 212. INTERMEDIATE COURTS. See APPEAL AND ERBOB. INTERNATIONAL EXTRADITION. See EXTBADITION. INTERNATIONAL LAW. Jurisdiction of court of action against for- eign sovereign or foreign state, 1918E- 527. INTERSTATE COMMERCE. Effect on state statute or rule of federal as- sumption of control of telegraph compan- ies, 1918C-1033. Reports to interstate commerce conimis ion Tinder federal hours of service act, 1918C-813. State statutes penalizing negligent handling of telegrams as regulation of interstate commerce, 1918C-1039. Validity and enforcement of contract by car- rier to carry goods at discriminating rate fixed by mistake, 1018E-458. INTERSTATE EXTRADITION. See EXTRADITION. CUMULATIVE INDEX TO NOTES. 255 INTOXICATING LIQUORS. Construction of statute prescribing form of indictment for unlawful sale of intoxi- cating liquors, 1918C-560. Construction of statute regulating sale of liquor on prescription of physician, 1918E-915. Possession of federal license as evidence of violation of liquor law, 1918D-775. Right to rent as affected by landlord's knowledge that premises are to be used for illegal sale of liquor, 1918C-442. See also LOCAL OPTION. INTOXICATION. See DBUNKENM:SS. INVOICE VALUE. Meaning of "invoice value," "invoice cost" or the like, 1918E-541. IRON-SAFE CLAUSE. See FIRE INSURANCE. IRRIGATION. Power of United States to condemn land for irrigation purposes. 1918E-48. JANITORS. Person employed as janitor as independent contractor, 1918C-656. JOINDER OF PARTIES. See PARTIES TO ACTIONS. JOINT PURCHASE. See FRAUDS, STATUTE or. JOINT TORTFEASORS. See EELEASE AND DISCHARGE, JOURNALS. See STATUTES. JUDGES. "Judge" as including justice of the peace, IfllSD-PflO. JUDGMENTS. Executions: injunction against execution sale, 1918C-152. Purchasers pendente lite: judgment creditor as purchaser pendente lite, 1918C-64. Res judicata: judgment in action by or against individual as res judicata in action by same person in representative capacity, 1918E-1103. judgment in action by or against repre- sentative, as res judicata in action by same person individually, 1918E-1096. judgment or settlement in bastardy pro- ceeding as barring right of action for damages for seduction, 1918D-669. Summary judgment: entry of summary judg- ment against surety on bond in nature of appeal bond, 1918C-1151. entry of summary judgment against sure- ty on injunction bond, 1918C-97. See also EXECUTORS AND ADMINISTRATORS ; GARNISHMENT; PABTNERSHIP. JUDICIAL PROCEEDINGS. See LIBEL AND SLANDER. JUDICIAL SALES. Injunction against execution sale, 1918C- 152. Parol agreement made with person interested in land, that promisor will buy land at judicial sale and hold for benefit of promisee, as implied trust enforceable in equity, 1918E-309. Purchaser at judicial sale as purchaser pendente lite, 1918C-66. JURISDICTION. See COURTS. JURY. Disclosure by juror before verdict of facts respecting verdict or state of delibera- tions as prejudicial error, 1918E-668. See also GRAND JURY; VEKDICT. JUSTICES OF THE PEACE. "Judge" as including justice of the peace, 1918D-990. JUSTIFICATION. See LIBEL AND SLANDEB. JUSTLY DUE. Legal meaning of "justly due," 1918E-789. 256 ANN. CAS DIGEST (1918C-1918E). KEEPING PROHIBITED ARTICLES. See FIBE INSURANCE. KNOWLEDGE. See LANDLORD AND TENANT. LABOR COMBINATIONS. Legality of picketing, 1918E-54. Validity of rule of labor union as affecting third person, 1918D-653. LABOR LAWS. Construction of federal hours of service act, 1918C-797. Construction of federal railroad boiler in- spection act, 1918C-584. Laborers or employees within purview of statute limiting hours of labor, 1918C- 338. Validity of statute fixing minimum wage rate for private employment. 1918D-465. What constitutes "manufacturing" establish- ment within statute regulating hours of labor, 1918D-685. Repairs and improvements: right of lessee to enforce covenant to pay for improve- ments or repairs against successor of reversion, 1918D-1180. See also BROKERS. LARCENY. Necessity that justification of charge of larceny be justification of precise charge, 1918C-1139. See also CARRIERS OF PASSENGERS. LAVATORIES. Construction of public lavatory in street aa constituting nuisance or as entitling abutting owner to compensation, 1918D- 906. LEASES. See LANDLORD AND TENANT. LEGALLY DUE. Legal meaning of "legally due," 191SC- 789. LACHES Laches as affecting right of minority stock- holder to dissolve corporation, 1918E- 431. See also MORTGAGES. LAND. See WASTE. LEGATEES. Right of legatee to enjoin execution sale, 1918C-260. See also EQUITABLE ELECTION. LEGISLATIVE JOURNALS. See STATUTES. LANDLORD AND TENANT. Eviction: failure of landlord to heat prem- ises according to contract as constructive eviction of tenant. 1918D-394. Executions: right of lessor or lessee to en- join execution sale, 1918C-152- Insurance: construction of agreement by lessee to insure premises against fire, r918E-299. Intoxicating liquors: rights of landlord and tenant inter se under lease of premises for saloon purposes where tenant is sub- sequently unable to USP premises for that purpose, 1918D-1145. right to rent as affected by landlord's knowledge that premises are to be used for illegal sale of liquor, 1918C-442. Leases: necessity for acknowledgment of lease, 1918D-161. Purchasers pendente lite: lessor or lessee as purchaser pendente lite, 1918C-60. LEVELING LAND. Changing level of land as waste, 1918D-.~i43. LIBEL AND SLANDER. Actionable words: imputation of insanity as actionable. 1918E-101. utterance of clergyman or other representa- tive of religious organization (other than statement from pulpit) as action- able, 1918C-780. Defenses: necessity that justification of libel or slander be as broad as charge, 1918C- 1088. necessity that justification of libel or slander be justification of precise charge, 19180-1131. truth alone as complete defense in civil action for libel, 1918C-335. CUMULATIVE INDEX TO NOTES. 257 Privileged communications: report of grand jury as privileged within law of libel, 1918E-1196. what proceedings are within rule of privi- lege with respect to report of judicial proceedings, 1918C-1196. LIBRARIES. Condemnation of land for public library, 191SE-122. LICENSE. Effect of license on right of alien enemy to sue. 191SC-720. Liability of licensee in possession of prop- erty for damage thereto by fire, 1918D- 878. LICENSES. See AUTOMOBILES; HAWKERS AXD PEDDLERS; INTOXICATING LIQUORS. LIENS. Lienor as purchaser pendente lite. 1918C-62. Meaning of "machinery" in lien statute 1918E-209. See al-o MECHANICS' LlENS; STOCK AlfD STOCKHOLDERS. LIFE INSURANCE. Construction of representation that person applying for reinstatement of insurance is "in pood health,"' 1918D-1005. Declarations or written statements made by insured previous to death as evidence of suicide, 1918C-1050. Physician's death certificate as evidence in action on life insurance policy, 1918C- 761. Eights and liabilities of alien enemy with respect to life insurance contract, 1918C 714. LIFE TENANTS. Eight of life tenant to enjoin execution sale, I918C-267. Eunning of statute of limitations against action between partners for accounting and settlement after dissolution, 1918D- 1107. Running of statute of limitations against contribution between sureties, 1918E- 518. Eunning of statute of limitations against right to have deed declared mortgage, 1918C-756. LIMITED GUARANTY. See GUARANTY. LIS FENDENS. Who is purchaser pendente lite, 1918C-53. LOAN BROKERS. See BROKERS. LOCAL OPTION. Constitutionality of local option laws, 1918E- 874. LOGS AND LUMBER. Person employed in connection with logging or lumbering as independent contractor, 191SC-656. LOOK AND LISTEN. See RAILROADS. LOSSES. See GAMING. LOST INSTRUMENTS. Giving of indemnity as prerequisite to re- covery of amount of lost negotiable in- strument, 1918G-925. Right of stockholder to compel duplication of lost certificate, 1918E-66. LIMITATION OF ACTIONS. Concealment of facts as affecting running of limitations against right to attack dis- tribution of decedent's estate. 1918D-316. Limitation of action to recover additional compensation under contract with Unit- ed States, 1918E-20. Ann. Cas. Dig. 1918C-E. 17. LOTTERIES. See FRAUD. MACHINERY. Meaning of "machinery," 1P18E-202. 258 A XX. CAS DIGEST (1918C-1918E). MAINTENANCE. See SUPPORT AND MAINTENANCE. MAIN TRACK. Meaning of "main track," 1918E-242. MANDAMUS. Who may join as relators in mandamus pro- ceeding, 1918C-873. MANUFACTURING. Person employed in connection with manu- facturing as independent contractor, 1918C-656. What constitutes "manufacturing" establish- ment within statute regulating hours of labor, 1918D-685. MANURE. Removing manure as waste, 1918D-543. MARRIAGE Common-law marriages between Indians, 1918E-380. Fact that woman contracts marriage with intent not to assume marital relation as ground for annulment, 1918E-191. Person acquiring interest through marriage us purchaser pendente lite> 1918C-68. Presumption and burden of prof as to va- lidity of subsequent marriage, 1918E- 3233. Validity of contract made to induce mar- i riage between third persons, 1918C 820. See also DIVORCE. MARRIED WOMEN. See HUSBAND AND WIFE. MASONIC LODGES. Masonic Lodge or body as charitable insti- tution, 1918E-1043. MASTER AND SERVANT. Meaning of "machinery" with respect to duty of employer, 1918E-204. Neglect of statutory duty by employer as permitting action by employee for per- sonal injuries notwithstanding work- men's compensation act, 1918D-334. Time as essence of contract to enter employ- ment of another, 1918D-756. What may be shown as defense or set-off in action for wages, 193 SD-7'J. See also ELECTRICITY; EMPLOYERS' LIABILITY INSURANCE; INDEPENDENT CONTRACTORS; LABOR COMBINATIONS; LABOR LAWS; TIPS. MATERIALMEN. See BUILDING CONTRACTS. MEADOW LANDS. Changing meadow into arable land as waste. 1918D-543. Changing meadow into building land as waste, 1918D-543. Changing meadow into garden as waste, 1918D-543. Changing meadow into orchard as waste, 1918D-543. Changing meadow into pasture land aa waste, 1918D-543. Digging drains or trenches in meadow as waste, 1918D-543. MECHANICS' LIENS. Loan of money to contractor as giving right to mechanic's lien or to recovery on con- tractor's bond, 1918D-350. Priority as between mechanic's lien c-laim- ant and assignee of amount due contrac- tor, 1918C-1081. Right of holder of mechanic's lien to en- join execution sale, 1918C-276. MEMORANDUM. See FRAUDS, STATUTE OF. METHOD OF TRANSPORTATION. See CARRIERS OF GOODS; CARRIERS OF LIVE STOCK. MILEAGE. See PUBLIC OFFICERS. MILITIA. Se ARMY AND NAVY. MINES AND MINERALS. Assignee of contract to convey mineral rights as bona fide purchaser, 1918C-468. Person employed in connection with mine or quarry as independent contractor, 1918C- 656. CUMULATIVE INDEX TO NOTES. 259 Withdrawal from settlement of public lands occupied for oil or gas exploration, 1918C-1009. MONEY DUE. Legal meaning of "money due," 1918E-790. MINIMIZING DAMAGES. See INJUNCTIONS. MINIMUM WAGE RATE. See LABOR LAWS. MINISTERIAL OFFICERS. See PUBLIC OFFICERS. MINORITY STOCKHOLDERS. See STOCK AND STOCKHOLDERS. MISCONDUCT OF COUNSEL. Challenging opponent to waive legal rights as misconduct of counsel, 1918C-382. MONEY HAD AND RECEIVED. Eight of action for money had and received against person procuring payment of money with knowledge that it is due to another, 1918D-245. MORTGAGES. Assignment: rights of assignee of mortgage as against prior equities, 1918C-479. Deed as mortgage: effect of lapse of time on right to have deed declared mortgage, 1918C-755. Executions: right of mortgagee or mortgagor to enjoin execution sale, 1918C-271. Power of sale in trust deed or mortgage as power coupled with interest, 1918E-1021. Purchasers pendente lite: mortgagee as pur- chaser pendente lite, 1918C-61. Reformation: right to reform description in deed or mortgage as against purchaser without notice, 1918D-147. See also BROKERS; VENDOR AND PURCHASES. MISFEASANCE. See AGENCY. MORTIFICATION. See DAMAGES. MISMANAGEMENT. Mismanagement as ground for dissolution of corporation at instance of minority stock- holder, 1918E-429. MISNOMER. See TAXATION. MISREPRESENTATIONS. Waiver of forfeiture of benefit certificate for misrepresentation in application, 1918D-305. MISTAKE. Mistake as affecting running of statute of limitations against action between part- ners for accounting and settlement after dissolution, 1918D-1107. See also ARBITRATION AND AWARD; CARRIERS OF GOODS; REFEREES. MODIFICATION. See CONTRACTS. MOTOR VEHICLES. See AUTOMOBILES. MUNICIPAL CORPORATIONS. Buildings: liability of municipality for un- safe condition of building maintained for public use or amusement, 1918D-115. Business: validity of statute or ordinance requiring place of business (other than liquor saloon) to close at certain hour, 1918D-200. Claims: sufficiency of statutory notice of claim against municipality with respect to description of time of accident, 1918E- 1026. Executions: right to injunction against ex- ecution sale of municipal property, 1918C-223. Explosions and explosives: validity of ordi- nance regulating keeping of gasolene or other explosive within municipal limits, 1918E-145. Hospitals, etc.: liability of municipality for negligence in respect to condition of or performance of services incident to hospitals, pesthouses, and almshouses, 1918D-803. Initiative and referendum: constitutionality of initiative and referendum provisions either in state constitutions or municipal charters, 1918D-604. 260 ANN. CAS DIGEST (1918C-1918E). "Necessary expense:" what M "necessary ex- pense" in connection with municipal ad- ministration, 1918D-925. Ordinances: meaning of term "contiguous" as used in ordinance, 1918E-800. Picketing: validity of ordiiiance prohibiting picketing, 1918E-54. Streets: construction of public lavatory in street as constituting nuisance or as entitling abutting owner to compensa- tion, 1918D-906. exoneration between municipality and abutting owner as to damages paid on account of unsafe highway, 1918C-144. extent of highway crossing which railroad . is under duty to maintain in safe con- dition, 191SD-186. liability of municipality for injuries caused by banana peel or the like on sidewalk, 1918E-178. liability of municipality for injury due to improper use of street which it has ex- pressly permitted, 1918C-364. Sunday laws as directed against particular occupations, 1918E-1170. Taxation: power of municipal corporation to grant exemption from taxation, 1918E- 1088. public service plant operated by municipal- ity as subject to taxation, 1918E-85. Woman suffrage: validity of municipal au- thorization of woman suffrage, 1918C- 906. MUNICIPAL IMPROVEMENTS. See PUBLIC IMPROVEMENTS MUSIC. See SCHOOLS. NAMES. Effect of misnomer of landowner in tax pro- ceeding, 1918D-569. NATURALIZATION. Naturalization of alien enemy, 1918C-723. NAVIGATION. See WATERS AND WATEECOUESES. "NECESSARILY TRAVELED." Meaning of "necessary travel" or "neces- sarily traveled" as used with respect to mileage allowance, 1918D-934. NECESSARY. Meaning of term "necessary" as applied to easement, 1918D-931. Moaning of term "neccsHary" as used in ex- emption statute, 1918D-173. Meaning of term "necessary" as used in will, 1918D-1162. NECESSARY EXPENSE. Meaning of term "necessary expense," 1918D- 921. NEGLIGENCE. Abstract of title: liability of abstractor of title on account of abstract made by him, 1918E-93. Agency: personal liability of agent having charge of real property for misfeasance, 1918D-233. Automobiles: effect on rights and liabilities of owner or driver of automobile of fail- ure to comply with statutory regulations as to registration, license, displaying number, etc., 1918D-847. Carriers of goods: effect of liability of car- rier of goods by land of departure from agreed method of "transportation, 1918C- 1075. measure of damages for carrier's delay in transporting property intended for ex- hibition purposes, 1918E-1057. unusual and excessive amount of freight to be handled as excusing delay in trans- portation by carrier, 1918D-143. what constitutes reasonable time for re- moval of goods by consignee from prem- ises of carrier, 1918E-1114. Carriers of passengers : . contributory negli- gence of passenger in riding or standing on running board of open street car, 1918C-445. liability of carrier for injury to passenger caused by car door, 1918C-377. liability of carrier (other than sleeping car company) for larceny from or rob- bery of passenger by stranger, 1918E- 582. % liability of street railway for injury to passenger caused by collision at railroad crossing, 1918C-47. Dead bodies: right to recover for mutilation of dead body, 1918D-736. Death by wrongful act: divorce as effecting right of child to recover for death of parent, 1918E-419. effect of recovery for death by wrongful act on rights of posthumous child of deceased, 1918D-556. Electricity: liability of electric company for injuries resulting from one of its wires charging wire of other company or per- son, 1918C-916. liability of -electric company maintaining wires in close proximity to those of an- other company for injury to employee of latter company, 1918D-4. liability of one maintaining electric wires over private property, as distinguished from highway, for injuries received by adult coming in contact therewith, 1918C-594. CUMULATIVE INDEX TO NOTES. 261 Ferries: liability of owner of ferry to pas- sengers, 191SE-10S3. Fires: liability of licensee in possession of property for damage thereto by fire, 1918D-378. Hospitals, etc.: liability of municipality for negligence in respect to condition of or performance of service incident to hospi- tals, pesthouses, and almshouses, 1918JD- - 803. Husband and wife: right of wife, in absence of statute, to maintain action for injury to or loss of consortium, 1918D-20S. Innkeepers: liability of innkeeper for insult or indignity to guest, 1918E-255. Insurance: liability of agent to insurance company for failure to cancel or reduce policy as directed, 191SC-1043. Master and servant: construction of federal hours of service act, 1918C-797. neglect of statutory duty by employer as permitting action by employee for per- sonal injuries notwithstanding work- men's compensation act, 1918D-334. negligence of servant as defense or set- off in action for wages, 1918D-79. Municipal corporations: sufficiency of statu- tory notice of claim against municipality with respect to description of time of accident, 1918E-1026. Physicians and surgeons: liability of physi- cian for injuries caused by use of X-rays, 1918E-258. Public buildings: liability of municipality for unsafe condition of building main- tained for public use or amusement, 1918D-115. Railroads: liability of railroad company to person other than passenger for personal injury resulting from sparks or fire set by engine, 1918E-815. presence of electric bell or similar device at railroad crossing as excusing traveler from duty to look and listen, 1918D-388. Streets and highways: exoneration between municipality and abutting owner as to damages paid on account of unsafe high- way, 1918C-1144. extent of highway crossing which railroad is under duty to maintain in safe condi- tion, 191SD-186. liability of municipality for injuries caused by banana peel or the like on sidewalk, 1918E-178. liability of municipality for injury due to improper use of street which it has ex- pressly permitted, 1918C-364. Telegraphs and telephones: state statutes penalizing negligent handling of tele- grams as regulation of interstate com- merce, 1918C-1039. Warehouses: liability of warehouseman for negligence with respect to cold storage of food, 1918C-895. Weapons: civil liability of sportsman for shooting another while hunting, 1918C- 386. NEGOTIABLE INSTRUMENTS. See BILLS AND NOTES. NITROGLYCERINE. Validity of ordinance regulating keeping of nitroglycerine or other explosive within municipal limits, 1918E145. NOTES. See BILLS AND NOTES. NOTHING DUE. Legal meaning of "nothing due," 1918E-791. NOTICE. See ELECTIONS; MUNICIPAL CORPORATIONS ; SERVICE OF PROCESS. NOXIOUS WEEDS. See WEEDS. NUISANCES. Construction of public lavatory in street as constituting nuisance or as entitling abutting owner to compensation, 1918D- 906. Construction of statute prescribing form of indictment for maintaining public nui- sance, 1918C-563. NURSES. Nursing aa practice of medicine, 1918E-887. OBSCENITY. Construction of statute prescribing form of indictment for obscenity, 1918C-561. OCCUPATION. Sunday laws as directed against particular occupations, 1918E-1170. Waiver of forfeiture of benefit certificate for engaging in prohibited occupation, 1918D-310 Waiver of forfeiture of benefit certificate for misrepresentation as to occupation, 1918D-308. OFFER OF COMPROMISE. See COMPROMISE AND SETTLEMENT. OFFICERS. See CORPORATIONS ; PUBLIC OFFICERS; RE- LIGIOUS SOCIETIES. 262 ANN. CAS DIGEST (1918C-1918E). OFFICIAL BONDS. See SURETYSHIP. OIL. Validity of ordinance regulating keeping of oil within municipal limits, 1918E-145. Withdrawal from settlement of public lands occupied for oil or gas exploration, 1918C-1009. ORCHARDS. Changing meadow into orchard as waste, 1918D-543. ORDINANCES. See MUNICIPAL CORPORATIONS. OWNERSHIP. Conclusiveness of license registry as to owner- ship of motor vehicle, 1918E-737. OWNERS OF PREMISES. Recovery from owner of premises of money lost in gaming, 1918E-142. PARENT AND CHILD. Divorce as affecting right of child to re- cover for death of parent, 1918E-419. Liability of father for support of children after divorce decree in his favor not pro- viding for custody or maintenance of children, 1918C-939. Parties to action by minority stockholder to dissolve corporation, 1918E-431. Parties to action to enjoin execution sale, 1918C-290. Proper parties defendant in quo warranto proceedings against corporation, 1918D- 228. Who may join as relators in mandamus pro- ceeding, 1918C-873. See also ADMISSIONS AND DECLARATIONS; Lis PENDENSJ RES JUDICATA. PARTNERSHIP. Power of partner to bind firm by conveyance of partnership realty, 1918E-1188. Right to injunction against execution sale of partnership property, 1918C-220. Rights and liabilities of alien enemy with respect to partnership contract, 1918C- 715. Right to personal judgment against partner in action against firm as such, 1918D- 1136. Running of statute of limitations against action between partners for accounting and settlement after dissolution, 1918D- 1107. PART PAYMENT. See FRAUDS, STATUTE OF. PARTY WALLS. Rights of parties with respect to division wall in case of conveyance of part of premises, 1918C-879. ' PASSENGERS. See CARRIERS OF PASSENGERS. PARKS AND PUBLIC SQUARES. Changing park into farm as waste, 1918D- 543. Erection of buildings in public parks and squares, 1918E-489. Power of United States to condemn land for park, 1918E-45. PAROL EVIDENCE. Admissibility of parol evidence to show that subscription to stock was conditional, 1918C-863. See also FRAUD, STATUTE OF. PARTIES TO ACTIONS. Joinder of 'parties in quo warranto proceed- ings, 1918D-214. PASTURE LANDS. Changing meadow into pasture land as waste, 1918D-543. Changing pasture into arable land as waste, 1918D-543. Changing pasture into brush or wood lot as waste, 1918D-543. Changing wood land into pasture as waste, 1918D-543. PATENTS. Rights and liabilities of alien enemy with respect to patent, 1918C-715. PAYMENT. See GARNISHMENT. CUMULATIVE INDEX TO NOTES. 263 PENSIONS. Right to injunction against execution sale of property bought with pension money, 1918C-220. Validity and construction of statute limiting amount of attorney's fee for collection of pension claim against federal govern- ment, 1918O863. PERFORMANCE. See BECKERS. PERJURY. Construction of statute prescribing form ol indictment for perjury, 1918C-561. Necessity that justification of charge of per- jury be justification of precise charge, 1918C-1138. PERSONAL INJURIES. See DAMAGES; NEGLIGENCE. PERSONAL PROPERTY. Injunction against execution sale of person- al property, 1918C-205. See also TRUSTS AND TRUSTEES. PERSONAL REPRESENTATIVES. See EXECUTORS AND ADMINISTRATORS; RES JUDICATA. PESTHOUSES. Liability of municipality for negligence In respect to condition of or performance of services incident to pesthouse, 1918D- 803. PETITIONS. See PUBLIC IMPROVEMENTS. PHOTOGRAPHS. Admissibility of photograph to establish iden- tity of dead body, 1918C-703. PHYSICAL CHARACTERISTICS. Admissibility of evidence of physical char- acteristics to establish identity of dead body, 1918C-700. PHYSICIANS AND SURGEONS. Construction of statute regulating sale of liquor on prescription of physician, 1918E-915. Liability of physician for injuries caused by use of X-rays, 1918E-258. Nursing as practice of medicine, 1918E-687. Physician's death certificate as evidence, 1918C-761 See also DENTISTS. PICKETING. Legality of picketing, 1918E-54. PLACE OF BUSINESS. See BUSINESS. PLATFORMS. See CARRIERS OP PASSENGERS. PLEADING. Admissibility and collusiveness against pleader, in subsequent action with stran- ger, of admission in pleading, 1918E 54. Pleading in action to enjoin execution sale, 1918C-296. Pleadings in action by minority stockholder to dissolve corporation, 3918E 43J. Waiver of verification of pleading, 12/.6D -4$). POLICY. See INSURANCE. POOR AND POOIfl Iwrt WSi See SUPERINTENDKJ/T4 0V PoOB. POSTHUMOUS CHILD. See DEATH BV WRONGFUL ACT. P/WBER. Validity of ordinance regulating keeping of powder within municipal limits, 1918E- 145. I O AVERS. How power of bj/pointment to be executed by will may be exercised, 1918E-1161. Power of siile in trust deed or mortgage as power toupled with interest, 1918E-1021. 264 ANN. CAS DIGEST (1018C-1918E). PRACTICE. Practice in action by minority stockholder to dissolve corporation, 1918E-431. PRACTICE OF LAW. See ATTOBNEYS. PRACTICE OF MEDICINE. See PHYSICIANS AND SUBGEONS. PRECINCTS. "Village" as synonymous with precinct, 1918D-267. PRESCRIPTIONS. See PHYSICIANS AND SUBGEONS. PRESUMPTIONS. Facts which must be shown in connection with absence to establish presumption of death, 1918D-758. Presumption as to existence of relation of independent contractor, 1918C-632. Presumption as to validity of subsequent marriage, 1918E-1233. Validity of provision in will creating pre- sumption with respect to survivorship in common disaster, 1918D-842. PRIMARIES. See ELECTIONS. PROCESS. Right to enjoin execution bale on ground of failure to serve process, 1918C-237. Validity and construction of statute requiring service of notice on public oflicial in divorce suit, 1918D-1098. PROFITS. See FIBE INS USANCE. PROHIBITED ARTICLES. See FIBE INSUBANCE. PRO RATE. Legal meaning of "pro rate" or pro rata," 1918C-791. PUBLIC BUILDINGS, See BUILDINGS. PUBLIC CONTRACTS. See CoNTBACTS; MECHANICS' LIENS. PUBLIC FUNDS. See PUBLIC OFFICERS. PUBLIC IMPROVEMENTS. Who may petition for or remonstrate against municipal improvement, 1918E-837. PRINCIPAL AND AGENT. See AGENCY. PRINCIPAL AND SURETY. See SUBETY. PRIORITIES. See MECHANICS' LIENS. PRIVILEGED COMMUNICATIONS. See LIBEL AND SLANDER. PROBATE. See WILLS. PUBLIC LANDS. Entryman on public lands as bona fide pur- chaser, 1918C-461. Public lands subject to withdrawal from settlement for water power or similar purpose, 1918C-1008. PUBLIC LAVATORIES. See LAVATOBIES. PUBLIC LIBRARIES. See LIBRARIES. PUBLIC NUISANCES. See NUISANCES. CUMULATIVE I^DEX TO NOTES. 265 PUBLIC OFFICERS. Bond: liability of surety on bond of public officer for acts wholly outside official duty, 191SC-1020. Compensation: meaning of "necessary travel" or "necessarily ' traveled" as used with respect to mileage allowance, 1918D-934. right of public officer to additional com- pensation for duties imposed after com- mencement of term in absence of statu- tory authority therefor, 1918E-1062. Consecutive service: validity and construc- tion of statute limiting consecutive serv- ice by public officer, 1918E-358. Divorce: validity and construction of stat- ute requiring service of notice on publio official in divorce suit, 1918D-1098. Interest: liability of public officer for inter- est received on public funds, 1918E-105. Statutes: right of ministerial officer to ques- tion validity of statute, 1918D-1199. See also ELECTIONS. PUBLIC RECORDS. Admissibility in evidence of public record containing physician's death certificate, 191SC-766. Recital in public record as proof of age, 1918E-266. PUBLIC SCHOOLS. See SCHOOLS. PUBLIC SERVICE COMMISSIONS. Power of public service commission to compel railroad to build sidetrack, 1918E-339. PUBLIC SERVICE CORPORATIONS. Right to injunction against execution sale of property of public service corpora- tion, 1918C-225. PUBLIC SERVICE PLANTS. See TAXATION. QUESTIONS OF LAW AND FACT. Existence of relation of independent con- tractor as question of law or fact, 1918C-632. Reasonableness of time for removal of goods by consignee from premises of carrier as question of law or fact, 1918E-1120. . QUO WARRANTO. Joinder of parties in quo warranto proceed- ings, 1918D-214. Proper parties defendant in quo warranto proceedings against corporation, 1918D- 228.