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moneys than lands; and under such will the ground for a new trial, has substantially residuary legatees will take only the residue the same meaning in legal practice, as each of personalty. Bragaw v. Bolles, 25 Atl. 947, is used to denote some condition or situa950, 51 N. J. Eq. 84.

tion in which a party to a cause is unex

pectedly placed, to his injury, without any SURPRISE.

fault or neglect of his own, which ordinary

prudence could not have guarded against. “Surprise" is the act of taking un- Zimmerer v. Fremont Nat. Bank, 81 N. W. awares; sudden confusion or perplexity. 849, 850, 59 Neb. 661 (citing McGuire v. Davis v. Steuben School Tp., 50 N. E. 1, 5, Drew, 83 Cal. 229, 23 Pac. 313). 19 Ind. App. 694.

As reasonable surprise. "Surprise” is defined by Mr. Story to be, “in private transactions, an undue advan

"Surprise," as used in Code N. O. & 274, tage taken of a party under circumstances providing that the judge may, in bis discre which mislead, confuse, or disturb the just tion, etc., relieve a party from a judgment, results of his judgment, and thus expose

order, or other proceeding taken against him him to be the victim of the artful, the im- through his mistake, inadvertence, surprise, portunate, and the cunning.” Turley v. Tay- or excusable neglect, does not mean any surlor, 65 Tenn. (6 Baxt.) 376, 386.

prise, but is confined to a reasonable sur

prise, occasioned by some fact "Surprise” is defined in practice to be, thing that has or has not been done, of that situation in which a party is unexpect- which the complaining party ought to have edly placed, without any default of his own, knowledge, and which, if he had had such which will be injurious to his interest. knowledge, might have prevented the judg. Gidionsen v. Union Depot R. Co., 31 S. W. ment, order, or other proceeding of which he 800, 802, 129 Mo. 392 (citing Graham & W. complains. Skinner v. Terry, 12 S. E. 118, New Trials).

119, 107 N. C. 103. The word “surprise,” in its legal acceptation, denotes an unforeseen disappointment

Mistake of or misapprehension as to

law. against which ordinary prudence would not have afforded protection. Patrick v. Boon

A mistake as to the law, or a misappre- . ville Gaslight Co., 17 Mo. App. 462, 463, 465; hension of it, does not constitute such surPeers v. Davis' Adm'rs, 29 Mo. 184, 190.

prise as to warrant a continuance of the

cause, Bemis v. Williams (Tex.) 74 S. W. A party to an action cannot claim a new 332, 334 (citing Philips v. Wheeler, 10 Tex trial on the ground of "surprise,” where he 536). was not misled by any person, but he assumed that the witnesses knew more than it Neglect of counsel. transpired they did know. Van Tassell v.

The term "surprise,” in Code Cr. Proc New York, L. E. & W. R. Co., 20 N. Y. Supp. $ 135, authorizing the setting aside of a judg715, 716, 1 Misc. Rep. 312.

ment taken through the mistake, inadvertThe word “surprise,” as employed in ence, surprise, or excusable neglect of a parRev. St. 1879, 8 3704, denotes an unforeseen ty, includes a case where the party retains disappointment in some reasonable expecta- an attorney to enter a plea for him and the tion, against which ordinary prudence would attorney fails so to do. Griel v. Vernon, 65 have afforded no protection. If there is any N. C. 76, 78. element of negligence in the case, there is

The terms "mistake, inadvertence, surno surprise. Fretwell v. Laffoon, 77 Mo. 26, prise, or excusable neglect” in Code, $ 274, 27.

providing that the court may, in its discreGoing to trial in a case without deposi- tion, within one year, without notice th etions which have been taken in it constitutes of, relieve the party from a judgment taken no legal surprise to the adverse party which against him through such neglect, was conwill entitle him to have the verdict set aside strued to apply to a judgment taken against on such ground, as, if the depositions have the defendant, who attended court for four not been transmitted to the court before tri- days during the return term, and then left al, either party may, if he wants to use his case in charge of counsel, who failed to them, move for a continuance until they look after the case, thinking the action had come to hand, or if they have been trans- been brought in another county, where propmitted, and the party by whom they were erly it should have been brought, thus pertaken does not offer them in evidence, the mitting a default judgment to go against adverse party may offer them, or any part his client. aylor y. Pope, 11 S. E, 257, 258, of them, in evidence. Heath v. Scott, 4 Pac. 106 N. C. 267, 19 Am. St. Rep. 530. 557, 560, 65 Cal. 548.

Unexpeoted evidence. As equivalent to accident.

Surprise as a ground for new trial was “Surprise,” though not necessarily syn- held in McFarland's Adm'r v. Clark, 39 Ky. onymous with "accident,” when used as a l (9 Dana) 136, to be altogether a different




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ground from that of the discovery of testi The surrender of property is the relin-
mony to impeach a witness who testified on quishment that a debtor makes of all his
the trial. The court said that surprise property to his creditors when he finds him-
"does not, like discovery, imply negligence, self unable to pay his debts. Civ. Code La.
but shows a satisfactory reason for the non- 1900, art. 2170.
production of the testimony known to exist,
but the materiality of which, on the trial, count of an indictment for violation of Rev.

The word “surrender,” as used in a
results entirely from the unexpected fact re-
specting 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 na-
party 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 pos

session. dent was absent at such time, and the ques

Evans v. United States, 14 Sup. tion of consent had not been raised in the Ct. 934, 937, 153 U. S. 584, 38 L. Ed. 830. trial in the justice's court. It was held that

The term “surrender,” as used in Code the landlord was entitled to a new trial on Civ. Proc. $ 751, providing that no money or the ground of surprise. Louisville & N. R. securities in the custody of the court shall Co. v. Bickel, 30 S. W. 600, 602, 97 Ky. 222. be surrendered, except on the certified order

In an action on a warranty of a slave of the court, does not apply to the transfer to be sound, defendant is not entitled to a by the county treasurer of securities in

The term new trial on the ground that he was "sur- which the funds are invested. prised” by testimony of plaintiff as to the surrender” does not in any sense suggest unsoundness of the slave. Anderson v. Duf- the transaction of a sale and delivery. It field, 8 Tex. 237, 238.

involves the idea of yielding, of delivering

in response to a demand, and cannot be in"Surprise,” as used in Burns' Ann. St. tended to include every transfer or delivery 1894, & 568 (Rev. St. 1881, § 569), providing that it might become necessary for the treasthat a new trial may be granted for sur urer to make in the course of the manageprise which ordinary prudence could not ment of any particular fund. Tompkins have guarded against, cannot be construed County v. Ingersoll, 81 N. Y. Supp. 242, 244, to permit a new trial merely because de 81 App. Div. 344. fendant produced evidence not anticipated. Working v. Garn, 47 N. E. 951, 953, 148 Ind.

Merger distinguished. 546.

The doctrine of merger applies as well
Violation of agreement.

where the remainder interest comes into the

possession of the life tenant as when the life The words “surprise, mistake, inadvert- estate comes into the ownership and possesence, or excusable neglect,” in Hill's Ann. sion of the remainderman. In either event Laws, $ 102, authorizing a court to set aside the two estates become merged in one. А its judgment at any time within a year, if distinction is pointed out between “surrenthe judgment has been procured against the der” and “merger,” and it is said that “merparty asking such relief through his mis- ger” is a wider term than “surrender,” in take, inadvertence, surprise, or excusable that it takes place when the two estates are neglect, included a judgment procured in united, either in the hands of the remainderviolation of an agreement to extend the time to answer. Mr. Black says: “It is probable tenant of the particular estates, without re

man or reversioner, or in the hands of the that the species of surprise primarily con- gard to the method in which the two estates templated by these statutes is that which re

were united, while surrender is confined to sults from the taking of a judgment against the relinquishment by the tenant of the para party in violation of an agreement or un- ticular estate to his successor in reversion derstanding that the case shall be continued, or remainder. Harrison v. Johnston, 70 S. or not pressed, or not brought to trial, w. 414, 417, 109 Tenn. 245 (citing Fisher v. though that is also a kind of fraud." Thomp- Edington, 80 Tenn. (12 Lea] 189). son v. Connell, 48 Pac. 467, 468, 31 Or. 231, 65 Am. St. Rep. 818 (quoting 1 Black. Judgm. Of charter. 336).

Charters are in many respects compacts

between the government and the corporaSURRENDER.

tors; and as the former cannot deprive the Abandonment distinguished, see “Aban- latter of their franchises in violation of the don-Abandonment.”

compact, so the latter cannot put an end

to the compact without the consent of the The word “surrender" means yield, ren former,

It is equally obligatory. on both der, or deliver up. Nolander V. Burns, 50 parties. The surrender of a charter can only N. W. 1016, 1018, 48 Minn. 13.

be made by some formal, solemn act of the

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corporation, and will be of no avall until becomes extinct by mutual agreement between accepted by the government. There must be the parties. Brown v. Cairns, 77 N. W. 478, the same agreement of the parties to dis- 481, 107 Iowa, 727; Robertson Bros. v. Winssolve, that there was to form, the compact. low Bros., 74 S. W. 442, 443, 99 Mo. App. It is the acceptance which gives efficacy to 546; Buck v. Lewis, 46 Mo. App. 227, 232; the surrender. The dissolution of a corpora. Huling v. Roll, 43 Mo. App. 234. tion, it is said, extinguisbes all its debts. The power of dissolving itself by its own of a renting term before it bas expired by

“Surrender" applies to the termination act would be a dangerous power, and one which cannot be supposed to exist. Boston

the acceptance on the part of the landlord Glass Manufactory v. Langdon, 41 Mass. (24 of a surrender of the premises. Excelsior Pick.) 49, 53, 35 Am. Dec. 292.

Steam Power Co. v. Halsted, 5 App. Div. 124,

125, 39 N. Y. Supp. 43. Of estate.

A surrender is either in express words, “Surrender” is defined to be the resig. by which the lessee manifests his intention nation of a particular estate for life or for of yielding up his interest in the premises, years to one in the immediate reversion or or by operation of law, where the parties, remainder. Bedford v. Terbune (N. Y.) 27 without express surrender, do

act How. Prac. 422, 447; Coe v. Hobby, 72 N. Y. wbich implies that they have both agreed 141, 145, 28 Am. Rep. 120; Welcome y. Hess, to consider the surrender made. Robertson 27 Pac. 369, 370, 90 Cal. 507, 25 Am. St. Bros. V. Winslow Bros., 74 S. W. 442, 443, Rep. 145; Gluck v. City of Baltimore, 32 Atl. 99 Mo. App. 546 (citing Huling v. Roll, 43 515, 516, 81 Md. 315, 48 Am. St. Rep. 515; Mo. App. 234); Brewer v. National Union Dayton v. Craik, 1 N. W. 813, 815, 26 Minn. Bldg. Ass'n, 46 N. E. 752, 753, 166 III. 221; 133.

Woodward v. Lindley, 43 Ind. 333, 342; Day

ton v. Craik, 26 Minn, 133, 1 N. W. 813. A surrender is the yielding up of an estate for life or years to him that hath the

“Surrender” is either in express words, immediate estate in reversion or remainder, by which the lessee expresses his intention wherein the estate for life or years may of yielding up the premises, or else by operadrown by mutual agreement. Springstein v. tion of law. Buck v. Lewis, 46 Mo. App. Schermerhorn (N. Y.) 12 Johns. 357, 361; 227, 232. Schieffelin v. Carpenter (N. Y.) 15 Wend.

A surrender may be made by agreement 400, 404; Brewer v. National Union Bldg. of parties or by operation of law, and, when Ass’n, 46 N. E. 752, 753, 166 Ill. 221; Hays made, the estate of the lessee terminates, v. Goldman, 72 S. W. 563, 564, 71 Ark. 251.

and the relation of landlord and tenant ceas“Surrender" is the yielding up of an es

Hays v. Goldman, 72 S. W. 563, 564, 71 tate for life to him who has the immediate

Ark. 231. estate in reversion or remainder, by which

A surrender, such as will terminate a the lesser estate is merged in the greater lease and the obligations of the parties thereby mutual agreement. Fisher v. Edington, under, may be by agreement, express or im80 Tenn. (12 Lea) 189, 194; Dayton v. plied, or by operation of law; but in any Craik, 1 N. W. 813, 815, 26 Minn. 133.

case the facts must suffice to establish an “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 iminediate reversion, wherein the estate be a lessee removed from demised premises be comes subdivided by mutual agreement be- fore the end of the term, testimony of the tween the two parties.

lessor that the shelving, etc., used by the lesChurchill v. Lam

see was merely covered with curtains, but mers, 60 Mo. App. 244, 248.

was not used by the lessor, and that the floor A surrender is a flowing of a lesser es- space in the show window was used by the tate into a greater, like an estate for years lessor, but not in such manner as to interinto an immediate remainder in fee. Wit- fere with the use to which the lessee put it, mark v. New York El. R. Co., 27 N. Y. Supp. is sufficient to sustain a finding that there 777, 778, 76 Hun, 302.

was not a surrender and acceptance. Requa Where a transfer of the whole interest :: Domestic Pub. Co., 32 N. Y. Supp. 125,

126, 11 Misc. Rep. 322. in an estate for life or for years is made to the person holding the immediate reservation The effect of a surrender on the part of or remainder in fee, the estate transferred a tenant is to pass the estate of the tenant is extinguished by merger, and the trans- to the landlord, and this results in the exfer operates as a surrender, even though the tinguishment of the rent reserved, which is Instrunient was called a "lease,” and, the not due at the time of the surrender. Milsum reserved was called a "rent." Scott's ling v. Becker, 96 Pa, 182, 185. Ex'x v. Scott (Va.) 18 Grat. 150, 159.

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





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

SURRENDER BY OPERATION OF count. It was held that the landlord ac

LAW. cepted the surrender of the lease by the tenant. Welcome v. Hess, 27 Pac. 369, 370, 90 "A surrender may arise either from the Cal. 507, 25 Am. St. Rep. 145.

express agreement of the parties or by op

eration of law, and whenever a surrender is Sending a key to the owner, without implied from acts of the parties it is a surmore, is not such a surrender and acceptance render by the operation of law." Hart v. as will discharge a tenant's liability for rent Pratt, 53 Pac. 711, 712, 19 Wash. 560. Newton v. Speare Laundering Co., 37 Atl. 11, 12, 19 R. I. 546.

“Surrender by operation of law” may be

derived from the acts of the parties, or efPlaintiff had leases of four lots, execut- fected by words manifesting the intention ed before the construction of defendant's of the lessee to yield up the estate, or by elevated railroad in a street on which the acts of the parties which imply that both lots abutted; the leases requiring the lessee agree to consider the surrender as made. A to erect buildings on the lots, and the lessor surrender is implied and effected by operacovenanting to renew the leases for two tion of law when another estate is created terms. The leases expired after the con- by the reversioner, with the assent of the struction of the road, and plaintiffs, who had tenant, incompatible with the existing estate erected five buildings, took five leasės for a

or term, as by the taking of a new lease by renewal term, instead of four, in order to the lessee. Copper v. Fretnoransky, 16 N. Y. partition their interests, and surrendered the supp. 866, 867. original leases. Held, that the estate created by the original leases was not thereby

To constitute a surrender of a term by surrendered, but the subsequent leases were operation of law, overt acts of both parties simply renewals. Witmark v. New York El. inconsistent with the continuance of the term R. Co., 27 N. Y. Supp. 777, 778, 76 Hun, 302. are essential. Felker v. Richardson, 32 Atl.

830, 831, 67 N. H. 509. Where a lessor tells the lessee to quit the premises, and the lessee does quit, and

To constitute a “surrender by operation the lessor takes possession himself or ac- of law," there must not only be an abandoncepts rent from another, such change of pos- ment by the tenant, but an acceptance theresession by mutual agreement operates as a of by the landlord as a surrender. It is only surr of the lease. Boyd v. George

when the minds of the parties to a lease (Neb.) 89 N. W. 271, 272.

concur in a common intent to relinquish the

relation of landlord and tenant, and execute A surrender of a term by agreement, this intent by acts which are tantamount to whether express or implied, is the act, not a stipulation to put an end thereto, that a of the law, but of the parties. Felker v. surrender by act and operation of law arises. Richardson, 32 Atl. 830, 831, 67 N. H. 509. Where a lease authorized a landlord, if the

premises became vacant during the term, to or insurance policy.

re-enter and relet the same, and apply the To “surrender" means to cancel or yield rent to the expense of re-entering and reletup. Such was held to be its meaning in a ting, and of the rent due, a re-entry and relife policy stipulating that after the payment letting of the premises by the landlord on of three annual premiums the insured might their vacation by the tenant was not a sursurrender the policy within six months after render by operation of law. Jones v. Rushdefault and receive a paid-up policy for the more, 50 Atl. 587, 588, 67 N. J. Law, 157. stated amount. Wells v. Vermont Life Ins.

A surrender in law arises where the par. Co., 63 N. E. 578, 28 Ind. App. 620, 88 Am. St. Rep. 208.

ties, 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




the premises before the expiration of the Burke, 38 8. D. 313, 113 Ga. 74 (citing term, and delivers the keys to the landlord McAdam, Landi. & T. p. 1263). at the latter's request, who retains them, and during the term advertises the premises SURRENDER VALUE. for rent, an implied surrender arises by operation of law, and the tenant is not liable See "Cash Surrender Value. for future rent. Ledsinger v. Burke, 38 S. E. 313, 113 Ga. 74.

SURREPTITIOUSLY. A surrender by a tenant to his landlord by operation of law is said to exist when the

The word “surreptitiously," as used in owner of a particular estate has been a party Rev. St. § 4920 (U. S. Comp. St. 1901, p. to some act having some other object than 3394), requiring one who contests the validthat of surrender, but which object cannot ity of a patent on the ground of prior conbe effected while the particular estate con- ception to show that the patentee has surtinues, and the validity of which act he is reptitiously or unjustly obtained the patent, by law estopped from disputing. Such sur. is not synonymous with the word “unjustly." render is said to be the act of the law, and as used in the statute; and therefore it is takes place independently of the intention not necessary that actual fraud and theft of of the parties. Brown v. Cairns, 77 N. w. the idea by the patentee should be shown, 478, 481, 107 Iowa, 727.

for, though the word “unjustly" may include

the idea of a thing done fraudulently and A surrender exists by act or operation secretly, its ordinary meaning is contrary to of law when the parties, without any ex- justice or that which is right. Yates v. Hupress surrender, do some act so inconsistent son (D. O.) 8 App. Cas. 93, 99. with the subsisting relation of landlord and tenant as to imply that they have both

Allegations in a bill that certain things agreed to consider the surrender as made. were done surreptitiously is a mere stateWhere a tenant of premises made a contract ment of conclusion, not admitted by demurfor the purchase of the same, and made part rer. It neither informs the conscience of the payment, the agreement providing for the court of the facts of the case upon which it execution of a deed on payment of the bal- is asked to act, nor enables the defendant ance, and thereafter refused to pay the bal- to meet the accusation of wrongdoing made ance of the purchase price until the title was against him. Lumley v. Wabash R. Co. (U. approved, no demand being made for the S.) 71 Fed. 21, 28. rent and none being paid, there was a surrender of the lease, and the relation of land. SURROGATE. lord and tenant ceased. Lewis v. Angermiller, 35 N. Y. Supp. 69, 70, 89 Hun, 65.

The settlement of estates of deceased A surrender by operation of law takes persons from very early times bas devolved

upon other than common-law courts. Our place where the owner of a particular estate has been a party to some act, the validity of surrogate's court dates back to the act of which he is by law afterwards estopped from

March 16, 1778. Before the Revolution the disputing, and which would not be valid if powers and duties of the surrogate vested in his particular estate bad continued to exist. office was judge of the prerogative court, or

the colonial Governor, who by virtue of his Smith v. Pendergast, 3 N. W. 978, 980, 26 the court of probates, as it was sometimes Minn, 318.

called. When the government of this provA surrender in law was effected by the ince was committed to Gov. Nicolls, by the acceptance of a new lease of the premises Duke of York, there was framed what was from the lessor for the whole or a part of the afterwards known as the “Duke's Laws." time embraced in the former one, because it Under these laws the province was divided necessarily implied a termination and sur-into three ridings, in each of which was a render of that lease. Schieffelin v. Carpen- court of sessions, composed of the justices ter (N. Y.) 15 Wend. 400, 404.

of the peace residing therein, who held a

session twice a year. To this court was comA surrender is implied, and so effected mitted the probate of wills, the appointment by operation of law, when another estate is of executors and administrators, and the apcreated by the reversioner or remainderman, pointment of guardians; but, if the estate with the assent of the termor, incompatible exceeded £100, all proceedings upon the prowith the existing estate or term. Coe v. bate of wills and all records in cases of adHobby, 72 N. Y. 141, 145, 28 Am. Rep. 120. ministration had to be transmitted to the

secretary of the province, where they were SURRENDER IN FACT.

required to be recorded, and where letters

testamentary, of administration, and of the A surrender in fact is one by express final discharge of executors and administrawords fairly manifesting the intention of the tors were granted by the Governor under lessee to yield up his interest. Ledsinger v. seal of the province. In 1686 instructions

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