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A proceeding for leave to issue execution on a judgment charging land with owelty in partition is an "action," within the statute of limitations. Ex parte Smith, 47 S. E. 16, 18, 134 N. C. 495; Appeal of Hamilton (N. C.) 47 S. E. 16, 18.

A proceeding by mandamus to compel public officers to perform an official act is an action, within Rev. St. 1898, § 2918, which provides that costs shall be allowed of course to the plaintiff in an action in the circuit court on a recovery in certain specified cases, and section 2920, which declares that costs shall be allowed of course to the defendant in the actions mentioned in the two preceding sections, unless the plaintiff was entitled to costs therein. State v. Board of Trustees of Policemen's Pension Fund, 98 N. W. 954, 959, 121 Wis. 44.

The word "action," defined by Rev. Code Civ. Proc. § 12, as being an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforce ment or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, does not include a proceeding to foreclose a mortgage by advertisement, because no right is litigated between the parties, nor is the power of a court of law or equity invoked. Stevens v. Osgood (S. D.) 100 N. W. 161 (citing Hall v. Bartlett [N. Y.] 9 Barb. 297).

ACTION FOR USE AND OCCUPATION.

An action for use and occupation de pends upon the existence or the implication of a contract whereby the relation of landlord and tenant may be created. Ettlinger v. Degnon-McLean Contracting Co., 85 N. Y. Supp. 394, 42 Misc. Rep. 215.

8 WDS. & P.-49

ACTIVE MEMBER

ACTION FOR THE VIOLATION OF A

LAW.

Acts 1887, p. 225, No. 127, providing that the violation of any law, regulating the transin all actions against railway companies for portation of freight or passengers, the plaintiff, if successful, shall recover a reasonable attorney's fee, to be taxed according to the costs, refers to actions against railroad companies for violation of statutory regulations of the state in regard to transportation of freight and passengers, for to hold it applicable to all actions against railroads in the carriage of freight or passengers, whether or not any statute was violated, would doubtless render it unconstitutional. Kansas City Southern Ry. Co. v. Marx (Ark.) 80 S. W. 579,

580.

ACTION ON A NOTE.

A declaration contained two special counts, in effect declaring on a note, and alSO contained the consolidated common counts. The special pleas all began by stating that the causes of action in the several counts were the same as contained in the special counts, and the evidence all related to the special counts. Defendant, the guarantor of the note, pleaded failure of consideration, and contended that there was a contemporaneous written agreement with the note, and referring to it, which was specially pleaded by plaintiff. It was held that the suit was an "action on a note," within 2 Starr & C. Ann. St. 1896, p. 2802, c. 98, § 9, declaring that in such actions defendant may plead failure of consideration. Ewen v. Wilbor, 70 N. E. 575, 578, 208 Ill. 492.

ACTIONABLE NEGLIGENCE.

"Actionable negligence, or negligence which constitutes a good cause of action, grows out of a want of ordinary care and skill in respect to a person to whom the defendant is under an obligation or duty to use ordinary care and skill. The owner of land and of buildings assumes no duty to one who is on his premises by permission only, and is a mere licensee, except that he will refrain from willful or affirmative acts which are injurious." Means v. Southern California Ry. Co. (Cal.) 77 Pac. 1001, 1003 (citing Gibson v. Leonard, 143 Ill. 182, 189, 32 N. E. 182, 183, 17 L. R. A. 588, 36 Am. St. Rep. 376).

ACTIVE MEMBER.

The by-laws of a police relief association required $2 per annum as dues from active members, and $8 per annum from those who had honorably left the force, and also made a distinction as to sick benefits between active and retired members of the force. The rules of the board of police commissioners, which had authority to define plaintiff's

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status, required plaintiff, though on the pension roll, to be subject to call by day or night. Held, that plaintiff was entitled to pay dues and receive sick benefits as an active member of the force. Nickerson v. Providence Police Ass'n (R. I.) 57 Atl. 1057, 1058.

ACTIVE TRUST.

An active trust was created where the property was devised to a trustee to sell and convey, and invest the proceeds as he deemed best, and he was further authorized to hold, manage, control, care for, lease, and reinvest during a period of five years, and to pay the income to the children of testatrix. Harris v. Ferguy, 69 N. E. 844, 207 Ill. 534.

ACTUAL COST.

born v. Leach, 47 S. E. 811, 813, 135 N. C. 628, 66 L. R. A. 648.

ACTUAL EXPENSE.

"Actual expense," in Sess. Laws 1899, pp. 405, 406, § 1, providing that the sheriff shall be allowed, in addition to his salary, the actual and necessary expense for care of each prisoner, means the actual outlay or payment of money for benefits furnished the prisoners. Mombert V. Bannock County (Idaho) 75 Pac. 239, 241.

ACTUAL KNOWLEDGE.

The word "notice," as used in a provision in the bankruptcy act, that judgment of discharge does not bar such debts as have not been duly scheduled with the name of the notice or actual knowledge of the bankruptcy creditor, if known, unless such creditor has proceedings, etc., means the same as “actual knowledge." The terms are merely convertible. Fields v. Rust (Tex.) 82 S. W. 331, 333.

The phrase "actual cost," as used in St. 1890, c. 428, §§ 3-7, providing for the abolition of grade crossings by a railroad company, declaring that commissioners were to decide what alterations were necessary, and 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 services, and all damages for the taking of the land necessary to carry out the alterations that have been ordered, means "cost of what is described, though, where damages are incurred in taking land to carry out the report of the commissioners, counsel fees and extra work done by selectmen paid by a town in de fending or settling a claim for such damages

The best test of actual market value is a sale on a market under circumstances calculated to elicit full and free bidding by intending purchasers. Opinions as to what a thing would bring are necessarily less convincing as to its value than the fact of what it did bring. Francis v. Million (Ky.) 80 S. W. 486, 487.

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 railroad company to make the alterations is not a part of the actual cost. In re Directors of Old Colony R. Co., 70 N. EL. 62, 63, 185 Mass. 160.

ACTUAL DAMAGES.

"Notice is actual when the purchaser knows of the existence of the adverse claim, or perhaps when he is conscious of having the means of knowledge, and yet does not use them; and it is immaterial whether his knowledge results from direct information, 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, before any proceedings shall be brought for the publication in a newspaper of a libel, plaintiff shall serve a written notice on defendant, specifying the article and the statements which he alleges to be false, and that, if it appears on trial that the article was published in good faith, that its falsity was due to an honest mistake in fact, and that there were reasonable grounds for believing that the article was true, and that within ten days after the service of notice a fair and full retraction was published, plaintiff shall recover only actual damages, the term "actual damages" means compensatory damages, and includes 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.

Within the rule of law that "actual no

tice" must be given to persons dealing with a partnership, of the retirement of a partner, so as to relieve the retiring partner of liability, one who sells his business, which he has conducted under a firm name, to another, such other continuing the business under the same name, must give actual notice of the sale to those who have dealt with him. Pub lication of the sale in a newspaper, and changing the name of the proprietor on the sign at the place of business, is not actual notice. Werner Co. v. Calhoun (W. Va.) 46 S. E. 1024, 1026.

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
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ADJACENT

"care, control, and superintendence" of the ADDITIONAL SERVITUDE.
forest preserve, and Laws 1900, p. 62, c. 20, §
220, subd. 1, declaring that it shall have the
"care, control, and supervision" thereof, do not
place the commission in the actual occupancy
of the wild and vacant lands within the pre-
serve. People v. Kelsey, 89 N. Y. Supp. 416,
96 App. Div. 148.

ACTUAL POSSESSION.

"'Actual possession,' as a legal phrase, is put in opposition to the other phrase, 'possession in law' or 'constructive possession.' Actual possession is the same as pedis possessio or pedis positio, and these mean a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real, demonstrative act done. It is the contrary of a possession in law, which follows in the wake of title." People v. Kelsey, 89 N. Y. Supp. 416, 418 (citing Churchill v. Onderdonk, 59 N. Y. 134).

ACTUAL REBELLION.

"Actual rebellion or insurrection," in its ordinary acceptation, means a resistance to the established order of things. State v. McDonald (Ala.) 4 Port. 449, 457.

ACTUAL RESIDENT.

Whether a person is an "actual resident" of a particular school district, within the meaning of Gen. St. 1894, § 3697, must depend upon the special facts of each particular case. State v. Board of Education of Independent School Dist., 97 N. W. 885, 886, 91 Minn. 268.

ADDITION.

See "In Addition to."

ADDITIONAL.

"Additional" means given with or joined

to some other, and embraces the idea of join-
ing or uniting one thing to another, so as to
form an aggregate. Kadderly v. City of
Portland, 74 Pac. 710, 717, 44 Or. 118 (citing
Anderson's Law Dict.; State v. Hull, 53

Miss. 626, 645; Brooks v. Whitmore, 139
Mass. 356, 31 N. E. 731).

ADDITIONAL AMENDMENT.

An amendment, though not on the same subject or article, is an "additional amendment" within Const. art. 17, § 2, prohibiting the proposal of any additional amendment or amendments of the Constitution while one is awaiting action of a second Legislature or of the electors. Kadderly v. City of Portland, 74 Pac. 710, 717, 44 Or. 118.

The construction, maintenance, and operation of a telephone system on the streets of a city in such a manner as not to cause unnecessary injury or inconvenience to property owners is not an additional servitude for which an abutting owner is entitled to compensation. Kirby v. Citizens' Telephone Co. of Sioux Falls (S. D.) 97 N. W. 3, 4.

The establishment by a railway company of a system of wires and posts over its right of way is not the imposition of an "additional servitude," within the meaning of that term, authorizing an abutting owner to claim additional compensation. Railroad companies may devote the right of way which they have acquired to any use indispensable to or which will facilitate the fulfillment of the objects of their corporate existence, whether these uses be by grading, constructing of telegraph lines, or other incidental uses requisite for the convenient, safe, and successful conducting of their business and regular running of their trains. City of Canton v. Canton Cotton Warehouse Co. (Miss.) 36 South. 266, 271, 65 L. R. A. 561.

ADEQUATE CONSIDERATION.

An adequate consideration is one which must not be so disproportionate as to shock our sense of that morality and fair dealing that should always characterize transactions between man and man. Eaton v. Patterson (Ala.) 2 Stew. & P. 9, 19.

The word "adequacy," as used in an instruction that the adequacy of the consideration was for the parties to consider at the time of making an agreement, and not for the court when it was sought to be enforced, evidently does not refer to the legal sufficiency of the consideration, but to the inducements which operated on the minds of the parties in making the contract. Rosseau v. Rouss, 86 N. Y. Supp. 497, 502, 91 App. Div. 230.

ADJACENT.

It is not essential that property, to be adjacent to a river, should be in actual contact therewith. A thing is adjacent to another when it lies near or close to it, although it is not in actual contact therewith.

Yuba County v. Kate Hayes Min. Co., 74 Pac.

1049, 1050, 141 Cal. 360.

The word "adjacent" means contiguous, adjoining, lying close at hand, near. As used in Act March 3, 1875, c. 152, 18 Stat. 482 [U. S. Comp. St. 1901, p. 1568], granting to certain railroad companies the right of way through the public lands to the extent of 100 feet on each side of the central line of the road, with the right to take materials for its construction from the public lands adja. cent to the line of the road, it does not in

[Appendix.]

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 require claims to be presented to him in order to avoid the statute of nonclaim. Erwin v. Branch Bank at Mobile, 14 Ala. 307, 314.

Under a marine policy insuring a dredge, and providing that it was warranted confined to the use and navigation of the waters of New Haven 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 adjacent to Bridgeport Harbor, 17 miles from New Haven Harbor, was a deviation. Kirk v. Home Ins. Co., 86 N. Y. Supp. 980, 981, 92 App. Div. 26.

ADJOURNED TERM.

The "adjourned term" mentioned in Rev. St. 1899, § 1605, which provides that special or adjourned sessions of any court may be held in pursuance of the proclamation of the sheriff, or in continuation of the regular term, when so ordered by the court in term time, the order being entered on its record, although it is a continuation of a regular term, is not the uninterrupted or unbroken session held in pursuance of an adjournment from day to day, but is a session held after lapse of a longer period, and is commonly called an "adjourned term." Rev. St. 1899, § 7033, providing that an election contest shall be determined at the first term of the circuit court held 15 days after the official counting of the votes and service of the notice of contest, unless the same should be continued by consent or good cause shown, is not limited to the next regular term of court, but authorized the service of notice of contest to be held at an adjourned term. Montgomery v. Dormer, 79 S. W. 913, 915, 181 Mo. 5.

ADMINISTRATION.

See "Matter of Administration."

ADMINISTRATOR.

Administrators are creatures of the statutes, and have no powers except those conferred therein. The only direct and specific power conferred on the administrator in connection with the repairs and improvements of an estate is that he is authorized to keep the buildings in tenantable repair, extraordinary casualties excepted, unless not directed to do so by an order of the court. Rice v. Conwill (Tex.) 80 S. W. 393, 394.

ADMINISTRATOR AD COLLIGENDUM.

An administrator ad colligendum is the mere agent or officer of the court to collect and preserve the goods of the deceased until some one is clothed with authority to admin

What are called "admissions" in civil ac

tions, in criminal law are called "confes

sions." Merriweather
(Ky.) 82 S. W. 592, 596.

ADMITTED TO BAIL.

V. Commonwealth

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"Full age in male or female is 21 years, which age is completed on the day preceding the anniversary of a person's birth, who till that time is an infant, and so styled in law." Under the express provisions of Code, § 3188, a male person remains a minor until the age of 21 years, but the common law is modified by the statute to the extent of declaring a female an adult at 18 years of age, and all persons such upon marriage. Banco De Sonora v. Bankers' Mut. Casualty Co. (Iowa) 100 N. W. 532, 535 (quoting Blackstone).

ADVANCE.

The advance of money does not imply a loan. A contract of employment as a salesman at a certain commission, the employer to advance the salesman a certain sum monthly, "said advances to be charged and deduct ed from the commissions computed at the end of the period of employment," does not cre ate a personal liability on the part of the salesman to repay advances in excess of commissions earned. Schlesinger v. Burland, 85 N. Y. Supp. 350, 351, 42 Misc. Rep. 206.

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The phrase in a memorandum of sale of beans, "he to have advance for two weeks," cannot, without extrinsic testimony, be construed to refer to the market price at the end of two weeks, but it either refers to the highest price during the two weeks, or requires extrinsic evidence to explain it, in which event its construction on conflicting testimony was properly submitted to the jury. Chase v. Ainsworth (Mich.) 97 N. W.

404.

ADVANCEMENT.

An advancement is an irrevocable gift by a parent to a child of the whole or part of what it is supposed the child will be entitled to upon the death of the parent, who afterwards dies intestate. In re Allen's Estate, 56 Atl. 928, 929, 207 Pa. 325 (citing Appeal of Eshleman, 74 Pa. [24 P. F. Smith]

42.)

An advancement is an irrevocable gift by a parent in his lifetime to his child, on account of such child's share of the estate after the parent is dead. Schweitzer v. Schweitzer (Ky.) 82 S. W. 625

"An advancement is that bestowment of property by one standing in loco parentis to another, in anticipation of the latter's share in the donor's estate. It may in one sense be a gift; but its treatment in law as an advancement depends on two facts-one, that the donor shall die intestate, totally or partially; the other, that the gift shall have been in fact with a view to a portion or settlement in life upon the donee." Owsley v. Owsley (Ky.) 77 S. W. 394, 396.

The word "advancement," in its limited statutory meaning, is applicable only to cases of intestacy, and to moneys advanced by a parent to a child in anticipation of such child's future share of the parent's estate. it is employed by courts of equity in a wider sense to denote money or property advanced as a satisfaction pro tanto a general legacy given by a parent or other person standing in loco parentis to a child or grandchild. re Cramer, 89 N. Y. Supp. 469, 470, 43 Misc. Rep. 494.

In

Comp. St. 1903, c. 23, § 34, declares that, in order that a gift or grant shall be deemed an advancement, it must be expressed in the gift or grant to be so made, charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant. This section by implication excludes parol evidence of an advancement. Boden v. Mier (Neb.) 98 N. W. 701, 704 (citing Pomeroy v. Pomeroy, 67 N. W. 430, 93 Wis. 262; Bulkeley v. Noble, 19 Mass. [2 Pick.] 337; Bullard v. Bullard, 22 Mass. [5 Pick.] 527; Barton v. Rice, 39 Mass. [22 Pick.] 508).

ADVERSE PARTY

ADVERSE CLAIM.

A claim, by one who acquired possession of property of a bankrupt before the filing of the petition in bankruptcy, that such property was delivered to him in part payment of a debt, and that he had no reasonable cause to believe that a preference was thereby intended, is clearly an adverse claim, which a referee has no jurisdiction to summarily determine 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. Bankr. Rep. 387, 121 Fed. 940).

ADVERSE PARTY.

The term "adverse party," as used in Rev. St. 1887, § 4808, providing that the service of notice of appeal must be made on the adverse party or his attorney, means every party whose interest in the subject-matter would be affected by a modification or reversal of the judgment or order appealed from, irrespective of whether he is a plaintiff, defendant, or intervener. Titiman v. Alamance Min. Co. (Idaho) 74 Pac. 529.

"Adverse parties," within Laws 1899, p. 83, c. 62, providing for the service of notice of appeal on adverse parties, are all parties whose interests require that the order, judgment, or decree appealed from be sustained. It is immaterial whether such party appeared as one of the original parties to the action, or was brought in by order of the court. Stephens v. Stevens, 75 Pac. 619, 620, 27 Utah, 261.

The term "adverse party," as used in Rev. St. 1898, § 3049. relating to the service of notice of appeal to the Supreme Court, does not mean merely the opposite party on the record. A person may be an appellant or an adverse party, within the meaning of the statute, and his name not appear in the litigation resulting in the decision. If he has a substantial interest adverse to the decision, that is all that is required for an appellant, whether it be direct, or by privity created between himself and the person against whom the decision was rendered, by reason of succeeding to his rights after the decision or subsequent to the commencement of the action. Harrigan v. Gilchrist, 99 N. W. 909, 926, 121 Wis. 127 (citing Rogers v. Shove, 98 Wis. 271, 73 N. W. 989; Crowns v. Forest Land Co., 99 Wis. 103, 74 N. W. 546; Hiscock v. Phelps [N. Y.] 2 Lans. 106; Cotes v. Carroll [N. Y.] 28 How. Prac. 436; Barnes v. Stoughton [N. Y.] 6 Hun, 254; Pickersgill v. Read [N. Y.] 7 Hun, 636; Baylies, New Trials & Appeals [2d Ed.] 145).

The plaintiff serving an amended complaint after answer must be deemed an “adverse party," within Code Civ. Proc. § 798, providing that, if service on an adverse party

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