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ACTION

7563

ACTIVE MEMBER

(Appendix.) aimed as much at one as at another, and at ACTION FOR THE VIOLATION OF A no one act in particular, and it remains for LAW. the evidence to point the charge to a particular act intended. But when evidence has

Acts 1887, p. 225, No. 127, providing that been introduced tending directly to the proof in all actions against railway companies for of one act, and for the purpose of procuring the violation of any law, regulating the transa conviction upon it, from that moment that portation of freight or passengers, the plainparticular act becomes the "act charged.” tiff, if successful, shall recover a reasonable What has till then been floating and contin attorney's fee, to be taxed according to the gent has now become certain and fixed. Peo costs, refers to actions against railroad comple v. Jenness, 5 Mich. 305, 327.

panies for violation of statutory regulations of the state in regard to transportation of

freight and passengers, for to hold it appliACTION.

cable to all actions against railroads in the

carriage of freight or passengers, whether See “Cause of Action”; “Chose in Ac- or not any statute was violated, would doubttion"; "Civil Action – Case – Suit

less render it unconstitutional. Kansas City etc.”; “Local Action"; "Penal Action"; Southern Ry. Co. v. Marx (Ark.) 80 S. W. 579, "Subject of Action."

580. Any action, see “Any."

ACTION ON A NOTE. A proceeding upon a writ of scire facias to revive a judgment is not an "action,” but

A declaration contained two special simply a continuance of a former suit. Bick counts, in effect declaring on a note, and alV. Tanzey, 80 S. W. 902, 904, 181 Mo. 515.

contained the consolidated com:mon

counts. The special pleas all began by statA proceeding for leave to issue execu- ing that the causes of action in the several tion on a judgment charging land with owel-counts were the same as contained in the ty in partition is an "action," within the stat special counts, and the evidence all related ute of limitations. Ex parte Smith, 47 S. E. to the special counts. Defendant, the guar16, 18, 134 N. C. 495; Appeal of Hamilton antor of the note, pleaded failure of consid(N. C.) 47 S. E. 16, 18.

eration, and contended that there was a con

temporaneous written agreement with the A proceeding by mandamus to compel note, and referring to it, which was specialpublic officers to perform an official act is ly pleaded by plaintiff. It was held that the an action, within Rev. St. 1898, § 2918, which suit was an action on a note,” within 2 Starr provides that costs shall be allowed of course

& C. Ann. St. 1896, p. 2802, c. 98, § 9, declarto the plaintiff in an action in the circuit ing that in such actions defendant may plead court on a recovery in certain specified cas- failure of consideration. Ewen v. Wilbor, 70 es, and section 2920, wbich declares that N. E. 575, 578, 208 Ill. 492. costs shall be allowed of course to the defendant in the actions mentioned in the two

ACTIONABLE NEGLIGENCE. preceding sections, unless the plaintiff was entitled to costs therein. State v. Board of "Actionable negligence, or negligence Trustees of Policemen's Pension Fund, 98 N. which constitutes a good cause of action, W. 954, 939, 121 Wis. 44.

grows out of a want of ordinary care and

skill in respect to a person to whom the deThe word "action," defined by Rev. Code fendant is under an obligation or duty to Civ. Proc. § 12, as being an ordinary pro- use ordinary care and skill. The owner of ceeding in a court of justice by which a par- land and of buildings assumes no duty to one ty prosecutes another party for the enforce who is on his premises by permission only, ment or protection of a right, the redress or and is a mere licensee, except that he will prevention of a wrong, or the punishment of refrain from willful or affirmative acts a public offense, does not include a proceed- which are injurious.” Means v. Southern ing to foreclose a mortgage by advertise- California Ry. Co. (Cal.) 77 Pac. 1001, 1003 ment, because no right is litigated between citing Gibson v. Leonard, 143 111. 182, 189, the parties, nor is the power of a court of 32 N. E. 182, 183, 17 L. R. A. 588, 36 Am. St. law or equity invoked. Stevens v. Osgood Rep. 376). (S. D.) 100 N. W. 161 (citing Hall v. Bartlett (N. Y.) 9 Barb. 297).

ACTIVE MEMBER. ACTION FOR USE AND OCCUPATION.

The by-laws of a police relief associa

tion required $2 per annum as dues from acAn action for use and occupation de tive members, and $8 per annum from those pends upon the existence or the implication who had honorably left the force, and also of a contract whereby the relation of land- made a distinction as to sick benefits between lord and tenant may be created. Ettlinger active and retired members of the force, v. Degnon-McLean Contracting Co., 85 N. Y. The rules of the board of police commissionSupp. 394, 42 Misc. Rep. 215.

ers, which had authority to define plaintiff's 8 WDS.& P-49

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ACTIVE TRUST

7564

ACTUAL OCCUPANCY

(Appendix.] watus, required plaintiff, though on the pen- , born v. Leach, 47 S. E. 811, 813, 135 N. a sion roll, to be subject to call by day or 628, 66 L. R. A. 648. night. Held, that plaintiff was entitled to pay dues and receive sick benefits as an active member of the force, Nickerson y. Provi.

ACTUAL EXPENSE. dence Police Ass'n (R. I.) 57 Atl. 1057, 1058

“Actual expense,” in Sess. Laws 1899,

pp. 405, 406, § 1, providing that the sheriff ACTIVE TRUST.

shall be allowed, in addition to his salary,

the actual and necessary expense for care of An uctive trust was created where the each prisoner, means the actual outlay or property was devised to a trustee to sell and payment of money for benefits furnished the convey, and invest the proceeds as he deem

prisoners. Mombert Bannock County ed best, and he was further authorized to (Idaho) 75 Pac. 239, 241. bold, manage, control, care for, lease, and reinvest during a period of five years, and to pay the income to the children of testatrix. ACTUAL KNOWLEDGE. Harris v. Ferguy, 69 N. E. 844, 207 Ill. 534.

The word “notice,” as used in a provi

sion in the bankruptcy act, that judgment of ACTUAL COST.

discharge does not bar such debts as have The phrase "actual cost," as used in St. not been duly scheduled with the name of the 1890, c. 428, $$ 3-7, providing for the aboli creditor, if known, unless such creditor bas tion of grade crossings by a railroad com

notice or actual knowledge of the bankruptcy pany, declaring that commissioners were to proceedings, etc., means the same as “actual decide what alterations were necessary, and

knowledge." The terms are merely convert

ible. Fields v. Rust (Tex.) 82 S. W. 331, 333. providing that the company should pay a specified per cent. of the actual cost of the alterations, including in such cost the cost ACTUAL MARKET VALUE. of the hearing and the compensation of the commissioners and auditors for their serv The best test of actual market value is a ices, and all damages for the taking of the sale on a market under circumstances calculand necessary to carry out the alterations lated to elicit full and free bidding by inthat have been ordered, means “cost of what tending purchasers. Opinions as to what a is described, though, where damages are in- thing would bring are necessarily less concurred in taking land to carry out the report vincing as to its value than the fact of what of the commissioners, counsel fees and extra it did bring. Francis p. Million (Ky.) 80 S. work done by selectmen paid by a town in de W. 486, 487. fending or settling a claim for such damages for land taken for the purpose of abolishing

ACTUAL NOTICE. grade crossings have been held to be included." Interest paid on money borrowed by the

"Notice is actual when the purchaser railroad company to make the alterations is knows of the existence of the adverse claim, not a part of the actual cost. In re Directors or perhaps when he is conscious of having of old Colony R. Co., 70 N. E. 62, 63, 185 the means of knowledge, and yet does not Mass. 160.

use them; and it is immaterial whether his

knowledge results from direct information, ACTUAL DAMAGES.

or is gathered from facts and circumstances."

Clark v. Lambert (W. Va.) 47 S. E. 312, 318. As used in a libel law providing that, be fore any proceedings shall be brought for the

Within the rule of law that "actual no publication in a newspaper of a libel, plain tice” must be given to persons dealing with tiff shall serve a written notice on defendant, a partnership, of the retirement of a partner, specifying the article and the statements so as to relieve the retiring partner of liabilwhich he alleges to be false, and that, if it ity, one who sells his business, which he has appears on trial that the article was pub- conducted under a firm name, to another, lished in good faith, that its falsity was due such other continuing the business under the to an honest mistake in fact, and that there same name, must give actual notice of the were reasonable grounds for believing that the sale to those who have dealt with him. Pub article was true, and that within ten days lication of the sale in a newspaper, and after the service of notice a fair and full re-changing the name of the proprietor on the traction was published, plaintiff shall recover sign at the place of business, is not actual only actual damages, the term “actual dam- notice. Werner Co. v. Calhoun (W. Va.) 46 S. ages" means compensatory damages, and in E. 1024, 1026. cludes pecuniary loss, direct or indirect, or special damages, damages for physical pain ACTUAL OCCUPANCY. and inconvenience, damages for mental suffering, and damages for injury to reputation. Laws 1885, p. 482, c. 283, § 9, declaring It does not include punitive damages. Os that the forest commission shall have the

ACTUAL POSSESSION 7565

ADJACENT

[Appendix.) "care, control, and superintendence" of the ADDITIONAL SERVITUDE. forest preserve, and Laws 1900, p. 62, c. 20, 8 220, subd. 1, declaring that it shall have the

The construction, maintenance, and op"care, control, and supervision” thereof, do not eration of a telephone system on the streets place the commission in the actual occupancy of a city in such a manner as not to cause of the wild and vacant lands within the pre- unnecessary injury or inconvenience to propserve. People v. Kelsey, 89 N. Y. Supp. 416, erty owners is not an additional servitude for

which an abutting owner is entitled to com96 App. Div. 148.

pensation. Kirby v. Citizens' Telephone Co.

of Sioux Falls (S. D.) 97 N. W. 3, 4. ACTUAL POSSESSION.

The establishment by a railway company " 'Actual possession,' as a legal phrase, of a system of wires and posts over its right is put in opposition to the other phrase, 'pos- of way is not the imposition of an “additionsession in law' or 'constructive possession.' al servitude,” within the meaning of that Actual possession is the same as pedis pos- term, authorizing an abutting owner to claim sessio or pedis positio, and these mean a foot- additional compensation. Railroad compahold on the land, an actual entry, a posses- nies may devote the right of way which they sion in fact, a standing upon it, an occupa- have acquired to any use indispensable to or tion of it, as a real, demonstrative act done which will facilitate the fulfillment of the It is the contrary of a possession in law, objects of their corporate existence, whether which follows in the wake of title.” People these uses be by grading, constructing of V. Kelsey, 89 N. Y. Supp. 416, 418 (citing telegraph lines, or other incidental uses reqChurchill v. Onderdonk, 59 N. Y. 134).

uisite for the convenient, safe, and successful conducting of their business and regular run

ning of their trains. City of Canton v. CanACTUAL REBELLION.

ton Cotton Warehouse Co. (Miss.) 36 South.

266, 271, 65 L. R. A. 561. "Actual rebellion or insurrection," in its ordinary acceptation, means a resistance to the established order of things. State v. MCADEQUATE CONSIDERATION. Donald (Ala.) 4 Port. 449, 457.

An adequate consideration is one wbich

must not be so disproportionate as to shock ACTUAL RESIDENT.

our sense of that morality and fair dealing

that should always characterize transactions Whether a person is an “actual resident" between man and man. Eaton v. Patterson of a particular school district, within the (Ala.) 2 Stew. & P. 9, 19. meaning of Gen. St. 1894, § 3697, must de pend upon the special facts of each particu

The word “adequacy," as used in an inlar case.

State v. Board of Education of Instruction that the adequacy of the consideradependent School Dist., 97 N. W. 885, 886, 91 tion was for the parties to consider at the Minn. 268.

time of making an agreement, and not for the court when it was sought to be enforced, evi

dently does not refer to the legal sufficiency ADDITION.

of the consideration, but to the inducements

which operated on the minds of the parties See "In Addition to."

in making the contract. Rosseau V. Rouss,

86 N. Y. Supp. 497, 502, 91 App. Div. 230. ADDITIONAL.

“Additional” means given with or joined ADJACENT. to some other, and embraces the idea of joining or uniting one thing to another, so as to adjacent to a river, should be in actual con

It is not essential that property, to be form an aggregate. Kadderly V. City of tact therewith. A thing is adjacent to anPortland, 74 Pac. 710, 717, 44 Or. 118 (citing other when it lies near or close to it, alAnderson's Law Dict; State V. Hull, 53 though it is not in actual contact therewith. Miss. 626, 645; Brooks v. Whitmore, 139 Yuba County v. Kate Hayes Min. Co., 74 Pac. Mass. 356, 31 N. E. 731).

1049, 1050, 141 Cal. 360. ADDITIONAL AMENDMENT.

The word “adjacent” means contiguous,

adjoining, lying close at hand, near. AS An amendment, though not on the same used in Act March 3, 1875, c. 152, 18 Stat. subject or article, is an "additional amend- 482 (U. S. Comp. St. 1901, p. 1568), granting ment” within Const. art. 17, $ 2, probibiting to certain railroad companies the right of the proposal of any additional amendment or way through the public lands to the extent amendments of the Constitution while one is of 100 feet on each side of the central line of awaiting action of a second Legislature or of the road, with the right to take materials for the electors. Kadderly v. City of Portland, its construction from the public lands adja. 74 Pac. 710, 717, 44 Or. 118

cent to the line of the road, it does not in

ADJACENT

7566

ADVANCE

[Appendir.] clude lands which are 20 miles distant from, ister them, and cannot complain that another the right of way, but it does include lands is appointed administrator in chief. Flora within 2 miles. United States v. St. An- v. Mennice, 12 Ala. 836, 837. thony R. Co., 24 Sup. Ct. 333, 335, 338, 192 U. S. 524, 48 L. Ed. 548.

An administrator ad colligendum is not

such a representative of the estate as to re Under a marine policy insuring a dredge, quire claims to be presented to him in order and providing that it was warranted confined to avoid the statute of nonclaim. Erwin v. to the use and navigation of the waters of Branch Bank at Mobile, 14 Ala. 307, 314. New Ilaven Harbor and “adjacent inland waters," and declaring that any deviation beyond the limits shall avoid the policy, the ADMISSION. use of the dredge in an inland water adja

What are called "admissions" in ciyll accent to Bridgeport Harbor, 17 miles from New Haven Harbor, was a deviation. Kirk tions, in criminal law are called “confes. v. Home Ins. Co., 86 N. Y. Supp. 980, 981, 92 (Ky.) 82 S. W. 592, 596.

sions." Merriweather Commonwealth App. Liv. 26.

V.

ADMITTED TO BAIL. ADJOURNED TERM. The "adjourned term” mentioned in Rev: used in Rev. Codes 1899, $ 8679, relating to

The words "not admitted to bail," as St. 1899, $ 1605, which provides that special release on habeas corpus, mean that the acor adjourned sessions of any court may be held in pursuance of the proclamation of the cused has not been discharged on bail, but is

in custody under commitment because unable sheriff, or in continuation of the regular term, when so ordered by the court in term State v. Larson, 97 N. W. 537, 538, 12 N. D.

or unwilling to furnish the bail required. time, the order being entered on its record,

474 although it is a continuation of a regular term, is not the uninterrupted or unbroken session held in pursuance of an adjournment ADOPTED. from day to day, but is a session held after lapse of a longer period, and is commonly The word "adopted," in a stipulation to called an “adjourned term." Rev. St. 1899, the effect that the report of a referee shall be § 7033, providing that an election contest accepted and adopted, has the same meaning shall be determined at the first term of the as “accepted," and the effect of the stipula. circuit court held 15 days after the official | tion is merely to waive the right to question counting of the votes and service of the no the authenticity of the report on the settle tice of contest, unless the same should be ment of the bill of exceptions. Babcock y. continued by consent or good cause shown, is Ormsby (S. D.) 100 N. W. 759. not limited to the next regular term of court, but authorized the service of notice of con

ADULT. test to be held at an adjourned term. Montgomery v. Dormer, 79 S. W. 913, 915, 181 "Full age in male or female is 21 years, Mo. 5.

which age is completed on the day preceding

the anniversary of a person's birth, who till ADMINISTRATION.

that time is an infant, and so styled in law."

Under the express provisions of Code, $ 3188, See “Matter of Administration."

a male person remains a minor until the age

of 21 years, but the common law is modified ADMINISTRATOR.

by the statute to the extent of declaring a fe

male an adult at 18 years of age, and all Administrators are creatures of the stat persons such upon marriage. Banco De So utes, and have no powers except those con

nora V. Bankers' Mut. Casualty Co. (Iowa) ferred therein. The only direct and specific 100 N. W. 532, 535 (quoting Blackstone). power conferred on the administrator in connection with the repairs and improvements of ADVANCE. an estate is that he is authorized to keep the buildings in tenantable repair, extraordinary The advance of money does not imply a casualties excepted, unless not directed to do loan. A contract of employment as a salesso by an order of the court. Rice v. Conwill man at a certain commission, the employer (Tex.) 80 S. W. 393, 394.

to advance the salesman a certain sum month.

ly, "said advances to be charged and deduct. ADMINISTRATOR AD COLLIGENDUM. ed from the commissions computed at the end

of the period of employment," does not cre An administrator ad colligendum is the ate a personal liability on the part of the mere agent or officer of the court to collect salesman to repay advances in excess of comand preserve the goods of the deceased until missions earned. Schlesinger v. Burland, 85 some one is clothed with authority to admin. N. Y. Supp. 350, 351, 42 Misc. Rep. 206.

ADVANCE

7567

ADVERSE PARTI

[Appendix.] The phrase in a memorandum of sale of ADVERSE CLAIM. beans, "he to have advance for two weeks,” cannot, without extrinsic testimony, be con

A claim, by one who acquired possession strued to refer to the market price at the of property of a bankrupt before the filing end of two weeks, but it either refers to the of the petition in bankruptcy, that such prophighest price during the two weeks, or re- erty was delivered to him in part payment of quires extrinsic evidence to explain it, in a debt, and that he had no reasonable cause which event its construction on conflicting to believe that a preference was thereby intestimony was properly submitted to the tended, is clearly an adverse claim, which a jury. Chase v. Ainsworth (Mich.) 97 N. W. referee has no jurisdiction to summarily de404.

termine on its merits, except by the claimant's consent. In re Adams (U. S.) 130 Fed.

788, 789 (citing In re Hartman (U. S.) 10 Am. ADVANCEMENT.

Bankr. Rep. 387, 121 Fed. 940). An advancement is an irrevocable gift by a parent to a child of the whole or part ADVERSE PARTY. of what it is supposed the child will be entitled to upon the death of the parent, who The term "adverse party," as used in afterwards dies intestate. In re Allen's Es- Rev. St. 1887, § 4808, providing that the servtate, 56 Atl. 928, 929, 207 Pa. 325 (citing Ap- ice of notice of appeal must be made on the peal of Eshleman, 74 Pa. (24 P. F. Smith] , adverse party or his attorney, means every 42.)

party whose interest in the subject-matter

would be affected by a modification or reversAn advancement is an irrevocable gift al of the judgment or order appealed from, by a parent in his lifetime to his child, on ac- irrespective of whether he is a plaintiff, decount of such child's share of the estate after fendant, or intervener. Titiman v. Alamance the parent is dead. Schweitzer v. Schweit. Min. Co. (Idaho) 74 Pac. 529. zer (Ky.) 82 S. W. 625

"Adverse parties," within Laws 1899, p. "An advancement is that bestowment of 83, c. 62, providing for the service of notice property by one standing in loco parentis to of appeal on adverse parties, are all parties another, in anticipation of the latter's share whose interests require that the order, judgin the donor's estate. It may in one sense ment, or decree appealed from be sustained. be a gift; but its treatment in law as an ad- It is immaterial whether such party appeared vancement depends on two facts-one, that as one of the original parties to the action, the donor shall die intestate, totally or par- or was brought in by order of the court. tially; the other, that the gift shall have Stephens v. Stevens, 75 Pac. 619, 620, 27 been in fact with a view to a portion or set- Utah, 261. tlement in life upon the donee.” Owsley v. Owsley (Ky.) 77 8. W. 394, 396.

The term "adverse party," as used in

Rev. St. 1898, 8 3049, relating to the service The word "advancement," in its limited of notice of appeal to the Supreme Court, statutory meaning, applicable only to does not mean merely the opposite party on cases of intestacy, and to moneys advanced the record. A person may be an appellant by a parent to a child in anticipation of such or an adverse party, within the meaning of child's future share of the parent's estate. the statute, and his name not appear in the it is employed by courts of equity in a wider litigation resulting in the decision. If he has sense to denote money or property advanced a substantial interest adverse to the decision, as a satisfaction pro tanto-a general legacy that is all that is required for an appellant, given by a parent or other person standing whether it be direct, or by privity created bein loco parentis to a child or grandchild. In tween himself and the person against whom re Cramer, 89 N. Y. Supp. 469, 470, 43 Misc. the decision was rendered, by reason of Rep. 494.

succeeding to his rights after the decision or

subsequent to the commencement of the acComp. St. 1903, c. 23, $ 34, declares that, tion. Harrigan v. Gilchrist, 99 N. W. 909, in order that a gift or grant shall be deemed 926, 121 Wis. 127 (citing Rogers v. Shove, 98 an advancement, it must be expressed in the Wis. 271, 73 N. W. 989; Crowns v. Forest gift or grant to be so made, charged in writ- Land Co., 99 Wis. 103, 74 N. W. 546; Hiscock ing by the intestate as an advancement, or

v. Phelps [N. Y.) 2 Lans. 106; Cotes v. Caracknowledged in writing as such by the child roll [N. Y.] 28 How. Prac. 436; Barnes v. or other descendant. This section by impli- Stoughton [N. Y.] 6 Hun, 254; Pickersgill v. cation excludes parol evidence of an ad- Read [N. Y.] 7 Hun, 636; Baylies, New vancement. Boden v. Mier (Neb.) 98 N. W. Trials & Appeals [2d Ed.) 145). 701, 704 (citing Pomeroy v. Pomeroy, 67 N. W. 430, 93 Wis. 262; Bulkeley v. Noble, 19 The plaintiff serving an amended comMass. [2 Pick.) 337; Bullard v. Bullard, 22 plaint after answer must be deemed an “adMass. [5 Pick.] 527; Barton v. Rice, 39 Mass. verse party,” within Code Civ. Proc. $ 798, (22 Pick.) 508).

providing that, if service on an adverse party

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