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moneys than lands; and under such will the residuary legatees will take only the residue of personalty. Bragaw v. Bolles, 25 Atl. 947, 950, 51 N. J. Eq. 84.

SURPRISE.

"Surprise" is the act of taking unawares; sudden confusion or perplexity. Davis v. Steuben School Tp., 50 N. E. 1, 5, 19 Ind. App. 694.

"Surprise" is defined by Mr. Story to be, "in private transactions, an undue advantage taken of a party under circumstances which mislead, confuse, or disturb the just results of his judgment, and thus expose him to be the victim of the artful, the importunate, and the cunning." Turley v. Taylor, 65 Tenn. (6 Baxt.) 376, 386.

"Surprise" is defined in practice to be that situation in which a party is unexpectedly placed, without any default of his own, which will be injurious to his interest. Gidionsen v. Union Depot R. Co., 31 S. W. 800, 802, 129 Mo. 392 (citing Graham & W. New Trials).

The word "surprise," in its legal acceptation, denotes an unforeseen disappointment against which ordinary prudence would not have afforded protection. Patrick v. Boonville Gaslight Co., 17 Mo. App. 462, 463, 465; Peers v. Davis' Adm'rs, 29 Mo. 184, 190.

A party to an action cannot claim a new trial on the ground of "surprise," where he was not misled by any person, but he assumed that the witnesses knew more than it transpired they did know. Van Tassell v. New York, L. E. & W. R. Co., 20 N. Y. Supp. 715, 716, 1 Misc. Rep. 312.

The word "surprise," as employed in Rev. St. 1879, § 3704, denotes an unforeseen disappointment in some reasonable expectation, against which ordinary prudence would have afforded no protection. If there is any element of negligence in the case, there is no surprise. Fretwell v. Laffoon, 77 Mo. 26,

27.

Going to trial in a case without depositions which have been taken in it constitutes no legal surprise to the adverse party which will entitle him to have the verdict set aside on such ground, as, if the depositions have not been transmitted to the court before trial, either party may, if he wants to use them, move for a continuance until they come to hand, or if they have been transmitted, and the party by whom they were taken does not offer them in evidence, the adverse party may offer them, or any part of them, in evidence. Heath v. Scott, 4 Pac. 557, 560, 65 Cal. 548.

As equivalent to accident.

"Surprise," though not necessarily synonymous with "accident," when used as a

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"Surprise," as used in Code N. C. § 274, providing that the judge may, in his discre order, or other proceeding taken against him tion, etc., relieve a party from a judgment, through his mistake, inadvertence, surprise, or excusable neglect, does not mean any surprise, but is confined to a reasonable surprise, occasioned by some fact or some thing that has or has not been done, of which the complaining party ought to have knowledge, and which, if he had had such knowledge, might have prevented the judgment, order, or other proceeding of which he complains. Skinner v. Terry, 12 S. E. 118, 119, 107 N. C. 103.

Mistake of or misapprehension as to law.

A mistake as to the law, or a misapprehension of it, does not constitute such sur

prise as to warrant a continuance of the cause. Bemis v. Williams (Tex.) 74 S. W. 332, 334 (citing Philips v. Wheeler, 10 Tex 536).

Neglect of counsel.

The term "surprise," in Code Cr. Proc § 135, authorizing the setting aside of a judg ment taken through the mistake, inadvertence, surprise, or excusable neglect of a party, includes a case where the party retains an attorney to enter a plea for him and the attorney fails so to do. Griel v. Vernon, 65 N. C. 76, 78.

The terms "mistake, inadvertence, surprise, or excusable neglect" in Code, § 274, providing that the court may, in its discretion, within one year, without notice thereof, relieve the party from a judgment taken against him through such neglect, was construed to apply to a judgment taken against the defendant, who attended court for four days during the return term, and then left his case in charge of counsel, who failed to look after the case, thinking the action had been brought in another county, where properly it should have been brought, thus permitting a default judgment to go against his client. Taylor v. Pope, 11 S. E. 257, 258, 106 N. C. 267, 19 Am. St. Rep. 530.

Unexpected evidence.

Surprise as a ground for new trial was held in McFarland's Adm'r v. Clark, 39 Ky. (9 Dana) 136, to be altogether a different

SURPRISE

6819

SURRENDER

The surrender of property is the relinquishment that a debtor makes of all his property to his creditors when he finds himself unable to pay his debts. Civ. Code La. 1900, art. 2170.

The word "surrender," as used in a count of an indictment for violation of Rev.

ground from that of the discovery of testimony to impeach a witness who testified on the trial. The court said that surprise “does not, like discovery, imply negligence, but shows a satisfactory reason for the nonproduction of the testimony known to exist, but the materiality of which, on the trial, results entirely from the unexpected fact respecting which the party seeking a new trial St. § 5209 [U. S. Comp. St. 1901, p. 3497], in had been lulled, either by the antagonistic that defendant abetted the cashier of a naparty or the witness of that party; and tional bank in defrauding the bank by the therefore been surprised." In a case be- surrender and delivery of an unpaid note to tween landlord and tenant which involved the defendant without receiving any part of the subletting of premises, the tenant testi- the sum due thereon, carries with it somefied on the trial that the landlord's president thing more than a mere delivery, and indihad consented to such subletting. The presi- cates a transfer of title, as well as of posdent was absent at such time, and the ques-Ct. 934, 937, 153 U. S. 584, 38 L. Ed. 830. session. Evans v. United States, 14 Sup.

tion of consent had not been raised in the trial in the justice's court. It was held that the landlord was entitled to a new trial on the ground of surprise. Louisville & N. R. Co. v. Bickel, 30 S. W. 600, 602, 97 Ky. 222. In an action on a warranty of a slave to be sound, defendant is not entitled to a new trial on the ground that he was "surprised" by testimony of plaintiff as to the unsoundness of the slave. Anderson v. Duffield, 8 Tex. 237, 238.

"Surprise," as used in Burns' Ann. St. 1894, § 568 (Rev. St. 1881, § 569), providing that a new trial may be granted for surprise which ordinary prudence could not have guarded against, cannot be construed to permit a new trial merely because defendant produced evidence not anticipated. Working v. Garn, 47 N. E. 951, 953, 148 Ind. 546.

Violation of agreement.

The words "surprise, mistake, inadvertence, or excusable neglect," in Hill's Ann. Laws, § 102, authorizing a court to set aside its judgment at any time within a year, if the judgment has been procured against the party asking such relief through his mistake, inadvertence, surprise, or excusable neglect, included a judgment procured in violation of an agreement to extend the time to answer. Mr. Black says: "It is probable that the species of surprise primarily contemplated by these statutes is that which results from the taking of a judgment against a party in violation of an agreement or understanding that the case shall be continued, or not pressed, or not brought to trial, though that is also a kind of fraud." Thomp son v. Connell, 48 Pac. 467, 468, 31 Or. 231, 65 Am. St. Rep. 818 (quoting 1 Black. Judgm. 336).

SURRENDER.

The term "surrender," as used in Code Civ. Proc. § 751, providing that no money or securities in the custody of the court shall be surrendered, except on the certified order of the court, does not apply to the transfer by the county treasurer of securities in The term which the funds are invested. "surrender" does not in any sense suggest the transaction of a sale and delivery. It involves the idea of yielding, of delivering in response to a demand, and cannot be intended to include every transfer or delivery that it might become necessary for the treasurer to make in the course of the management of any particular fund. Tompkins County v. Ingersoll, 81 N. Y. Supp. 242, 244, 81 App. Div. 344.

Merger distinguished.

The doctrine of merger applies as well where the remainder interest comes into the possession of the life tenant as when the life estate comes into the ownership and possession of the remainderman. In either event the two estates become merged in one. A distinction is pointed out between "surrender" and "merger," and it is said that "merger" is a wider term than "surrender," in that it takes place when the two estates are united, either in the hands of the remainderman or reversioner, or in the hands of the tenant of the particular estates, without regard to the method in which the two estates were united, while surrender is confined to the relinquishment by the tenant of the par

ticular estate to his successor in reversion or remainder. Harrison v. Johnston, 70 S. W. 414, 417, 109 Tenn. 245 (citing Fisher v. Edington, 80 Tenn. [12 Lea] 189).

Of charter.

Charters are in many respects compacts between the government and the corporators; and as the former cannot deprive the

Abandonment distinguished, see "Aban- latter of their franchises in violation of the

don-Abandonment."

The word "surrender" means yield, ren-
der, or deliver up.
Nolander v. Burns, 50
N. W. 1016, 1018, 48 Minn. 13.

compact, so the latter cannot put an end to the compact without the consent of the former. It is equally obligatory on both parties. The surrender of a charter can only be made by some formal, solemn act of the

corporation, and will be of no avail until accepted by the government. There must be the same agreement of the parties to dissolve, that there was to form, the compact. It is the acceptance which gives efficacy to the surrender. The dissolution of a corporation, it is said, extinguishes all its debts. The power of dissolving itself by its own

act would be a dangerous power, and one

which cannot be supposed to exist. Boston Glass Manufactory v. Langdon, 41 Mass. (24 Pick.) 49, 53, 35 Am. Dec. 292.

Of estate.

"Surrender" is defined to be the resignation of a particular estate for life or for years to one in the immediate reversion or remainder. Bedford v. Terhune (N. Y.) 27 How. Prac. 422, 447; Coe v. Hobby, 72 N. Y. 141, 145, 28 Am. Rep. 120; Welcome v. Hess, 27 Pac. 369, 370, 90 Cal. 507, 25 Am. St. Rep. 145; Gluck v. City of Baltimore, 32 Atl. 515, 516, 81 Md. 315, 48 Am. St. Rep. 515; Dayton v. Craik, 1 N. W. 813, 815, 26 Minn.

133.

A surrender is the yielding up of an estate for life or years to him that hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown by mutual agreement. Springstein v. Schermerhorn (N. Y.) 12 Johns. 357, 361; Schieffelin v. Carpenter (N. Y.) 15 Wend. 400, 404; Brewer v. National Union Bldg. Ass'n, 46 N. E. 752, 753, 166 Ill. 221; Hays v. Goldman, 72 S. W. 563, 564, 71 Ark. 251.

"Surrender" is the yielding up of an estate for life to him who has the immediate estate in reversion or remainder, by which the lesser estate is merged in the greater by mutual agreement. Fisher v. Edington, 80 Tenn. (12 Lea) 189, 194; Dayton V. Craik, 1 N. W. 813, 815, 26 Minn. 133.

becomes extinct by mutual agreement between the parties. Brown v. Cairns, 77 N. W. 478, 481, 107 Iowa, 727; Robertson Bros. v. Winslow Bros., 74 S. W. 442, 443, 99 Mo. App. 546; Buck v. Lewis, 46 Mo. App. 227, 232; Huling v. Roll, 43 Mo. App. 234.

"Surrender" applies to the termination the acceptance on the part of the landlord of a renting term before it has expired by of a surrender of the premises. Excelsior Steam Power Co. v. Halsted, 5 App. Div. 124, 125, 39 N. Y. Supp. 43.

A surrender is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or by operation of law, where the parties, without express surrender, do some act which implies that they have both agreed to consider the surrender made. Bros. v. Winslow Bros., 74 S. W. 442, 443, 99 Mo. App. 546 (citing Huling v. Roll, 43 Mo. App. 234); Brewer v. National Union Bldg. Ass'n, 46 N. E. 752, 753, 166 III. 221; Woodward v. Lindley, 43 Ind. 333, 342; Dayton v. Craik, 26 Minn. 133, 1 N. W. 813.

Robertson

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"Surrender" is the yielding up of an acceptance by the landlord or an intent upestate for life or years to him who has the on his part to terminate the agency. Where immediate reversion, wherein the estate be a lessee removed from demised premises becomes subdivided by mutual agreement before the end of the term, testimony of the tween the two parties. Churchill v. Lammers, 60 Mo. App. 244, 248.

A surrender is a flowing of a lesser estate into a greater, like an estate for years into an immediate remainder in fee. Witmark v. New York El. R. Co., 27 N. Y. Supp. 777, 778, 76 Hun, 302.

Where a transfer of the whole interest in an estate for life or for years is made to the person holding the immediate reservation or remainder in fee, the estate transferred is extinguished by merger, and the transfer operates as a surrender, even though the instrument was called a "lease," and, the sum reserved was called a "rent." Scott's Ex'x v. Scott (Va.) 18 Grat. 150, 159.

lessor that the shelving, etc., used by the lessee was merely covered with curtains, but was not used by the lessor, and that the floor space in the show window was used by the lessor, but not in such manner as to interfere with the use to which the lessee put it, is sufficient to sustain a finding that there was not a surrender and acceptance. Requa Domestic Pub. Co., 32 N. Y. Supp. 125, 126, 11 Misc. Rep. 322.

The effect of a surrender on the part of a tenant is to pass the estate of the tenant to the landlord, and this results in the extinguishment of the rent reserved, which is not due at the time of the surrender. Milling v. Becker, 96 Pa. 182, 185.

A landlord leased a building for five "Surrender" is a yielding up of an estate years, and after the tenant had occupied the to the landlord, so that the leasehold interest | premises for about a year he abandoned the

SURRENDER

6821

SURRENDER BY OPERATION

same and sent the keys to the landlord. Held, that the word "surrender" meant a About two months later the landlord painted handing over of the document to the insurthe front of the building, obliterated the ance company for the purpose of modificasigns of the tenant, and made repairs. Soon tion. Goodhue v. Hartford Fire Ins. Co., 55 afterwards he relet the premises at a less N. E. 1039, 1040, 175 Mass. 187. rent for a period of five years, without notifying the tenants that he did it on their ac count. It was held that the landlord ac cepted the surrender of the lease by the tenant. Welcome v. Hess, 27 Pac. 369, 370, 90 Cal. 507, 25 Am. St. Rep. 145.

Sending a key to the owner, without more, is not such a surrender and acceptance as will discharge a tenant's liability for rent. Newton v. Speare Laundering Co., 37 Atl. 11, 12, 19 R. I. 546.

Plaintiff had leases of four lots, executed before the construction of defendant's elevated railroad in a street on which the lots abutted; the leases requiring the lessee to erect buildings on the lots, and the lessor covenanting to renew the leases for two terms. The leases expired after the construction of the road, and plaintiffs, who had erected five buildings, took five leases for a renewal term, instead of four, in order to partition their interests, and surrendered the original leases. Held, that the estate created by the original leases was not thereby surrendered, but the subsequent leases were simply renewals. Witmark v. New York El. R. Co., 27 N. Y. Supp. 777, 778, 76 Hun, 302.

Where a lessor tells the lessee to quit the premises, and the lessee does quit, and the lessor takes possession himself or accepts rent from another, such change of possession by mutual agreement operates as a surrender of the lease. Boyd v. George (Neb.) 89 N. W. 271, 272.

A surrender of a term by agreement, whether express or implied, is the act, not of the law, but of the parties. Felker v. Richardson, 32 Atl. 830, 831, 67 N. H. 509.

Of insurance policy.

To "surrender" means to cancel or yield up. Such was held to be its meaning in a life policy stipulating that after the payment of three annual premiums the insured might surrender the policy within six months after default and receive a paid-up policy for the stated amount. Wells v. Vermont Life Ins. Co., 63 N. E. 578, 28 Ind. App. 620, 88 Am. St. Rep. 208.

SURRENDER LAW.

BY

OPERATION OF

"A surrender may arise either from the express agreement of the parties or by operation of law, and whenever a surrender is

implied from acts of the parties it is a surrender by the operation of law." Hart v. Pratt, 53 Pac. 711, 712, 19 Wash. 560.

"Surrender by operation of law" may be derived from the acts of the parties, or effected by words manifesting the intention of the lessee to yield up the estate, or by acts of the parties which imply that both agree to consider the surrender as made. A surrender is implied and effected by operation of law when another estate is created by the reversioner, with the assent of the tenant, incompatible with the existing estate or term, as by the taking of a new lease by the lessee. Copper v. Fretnoransky, 16 N. Y. Supp. 866, 867.

To constitute a surrender of a term by operation of law, overt acts of both parties inconsistent with the continuance of the term are essential. Felker v. Richardson, 32 Atl. 830, 831, 67 N. H. 509.

To constitute a "surrender by operation of law," there must not only be an abandonment by the tenant, but an acceptance thereof by the landlord as a surrender. It is only when the minds of the parties to a lease concur in a common intent to relinquish the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, that a surrender by act and operation of law arises. Where a lease authorized a landlord, if the premises became vacant during the term, to re-enter and relet the same, and apply the rent to the expense of re-entering and reletting, and of the rent due, a re-entry and reletting of the premises by the landlord on their vacation by the tenant was not a surrender by operation of law. Jones v. Rushmore, 50 Atl. 587, 588, 67 N. J. Law, 157.

A surrender in law arises where the parties, without any express surrender, do an act so inconsistent with the subsisting relaPlaintiff's first count in an action on a tion of landlord and tenant as to imply an policy insuring chattels alleged a condition intention that the lessor should be in the prohibiting a removal of the chattels, a same situation as if an express surrender waiver thereof, removal to another place had been made. A surrender of a lease by with defendant's consent, and a loss. The operation of law may arise from any condisecond count alleged a surrender of the pol- tion of facts voluntarily assumed by the paricy at defendant's request, that it might be ties, and incompatible with the continued modified to cover the goods in the new place, existence of the relation of landlord and tenan agreement to insure until the policy was ant between them. McAdam, Landl. & T. modified, and a loss before modification. p. 1270. Where a tenant voluntarily vacates

SURRENDER VALUE.

the premises before the expiration of the | Burke, 38 S. E. 313, 113 Ga. 74 (citing term, and delivers the keys to the landlord McAdam, Landl. & T. p. 1263). at the latter's request, who retains them, and during the term advertises the premises for rent, an implied surrender arises by operation of law, and the tenant is not liable for future rent. Ledsinger v. Burke, 38 S. E. 313, 113 Ga. 74.

A surrender by a tenant to his landlord by operation of law is said to exist when the owner of a particular estate has been a party to some act having some other object than that of surrender, but which object cannot be effected while the particular estate continues, and the validity of which act he is by law estopped from disputing. Such sur. render is said to be the act of the law, and takes place independently of the intention of the parties. Brown v. Cairns, 77 N. W. 478, 481, 107 Iowa, 727.

A surrender exists by act or operation of law when the parties, without any express surrender, do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made. Where a tenant of premises made a contract for the purchase of the same, and made part payment, the agreement providing for the execution of a deed on payment of the balance, and thereafter refused to pay the balance of the purchase price until the title was approved, no demand being made for the rent and none being paid, there was a surrender of the lease, and the relation of landlord and tenant ceased. Lewis v. Angermiller, 35 N. Y. Supp. 69, 70, 89 Hun, 65.

A surrender by operation of law takes place where the owner of a particular estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist. Smith v. Pendergast, 3 N. W. 978, 980, 26

Minn. 318.

A surrender in law was effected by the acceptance of a new lease of the premises from the lessor for the whole or a part of the time embraced in the former one, because it necessarily implied a termination and surrender of that lease. Schieffelin v. Carpenter (N. Y.) 15 Wend. 400, 404.

A surrender is implied, and so effected by operation of law, when another estate is created by the reversioner or remainderman, with the assent of the termor, incompatible with the existing estate or term. Coe v. Hobby, 72 N. Y. 141, 145, 28 Am. Rep. 120.

SURRENDER IN FACT.

A surrender in fact is one by express words fairly manifesting the intention of the lessee to yield up his interest. Ledsinger v.

See "Cash Surrender Value."

SURREPTITIOUSLY.

The word "surreptitiously," as used in Rev. St. § 4920 [U. S. Comp. St. 1901, p. 3394], requiring one who contests the validity of a patent on the ground of prior conception to show that the patentee has surreptitiously or unjustly obtained the patent, is not synonymous with the word "unjustly." as used in the statute; and therefore it is not necessary that actual fraud and theft of the idea by the patentee should be shown, for, though the word "unjustly" may include the idea of a thing done fraudulently and secretly, its ordinary meaning is contrary to justice or that which is right. Yates v. Huson (D. C.) 8 App. Cas. 93, 99.

Allegations in a bill that certain things were done surreptitiously is a mere statement of conclusion, not admitted by demurrer. It neither informs the conscience of the court of the facts of the case upon which it is asked to act, nor enables the defendant to meet the accusation of wrongdoing made against him. Lumley v. Wabash R. Co. (U. S.) 71 Fed. 21, 28.

SURROGATE.

The settlement of estates of deceased persons from very early times has devolved upon other than common-law courts. Our surrogate's court dates back to the act of March 16, 1778. Before the Revolution the powers and duties of the surrogate vested in office was judge of the prerogative court, or the colonial Governor, who by virtue of his the court of probates, as it was sometimes called. When the government of this province was committed to Gov. Nicolls, by the Duke of York, there was framed what was afterwards known as the "Duke's Laws." Under these laws the province was divided into three ridings, in each of which was a court of sessions, composed of the justices of the peace residing therein, who held a session twice a year. To this court was committed the probate of wills, the appointment of executors and administrators, and the appointment of guardians; but, if the estate exceeded £100, all proceedings upon the probate of wills and all records in cases of administration had to be transmitted to the secretary of the province, where they were required to be recorded, and where letters testamentary, of administration, and of the final discharge of executors and administrators were granted by the Governor under seal of the province. In 1686 instructions

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