Imágenes de páginas


enough to justify a reasonable belief in the Same belief of accuser.
plaintiff's guilt. Such an instruction, uni- 3. It is not necessary, in order for prob-
Iess accompanied by a clear and accurate able cause for an arrest to exist, that the
statement of what specific facts under the accuser shall believe that he has sufficient
circumstances of the particular case would,' evidence to procure a conviction of the ac-
if found to exist, be sufficient under the cused.
law for that purpose, is materially errone-

Witnesses communication to prose

cuting attorney privilege. Malicious prosecution — probable cause

4. Communications made by a complain- question of law.

ing witness to the prosecuting attorney con2. What constitutes probable cause for an

cerning his knowledge of matters relating arrest is a question of law, and, if a complaining witness believed upon reasonable defendant are privileged, and cannot be

to the probable guilt or innocence of the grounds that the accused was guilty: it is given in evidence over his objection in an not material, in an action against him for action against him for malicious prosecumalicious prosecution, whether he believed

that probable cause existed in a legal sense,
unless as bearing upon the question of

(December 11, 1909.)
As to the discharge of accused by ex- ! prosecution is an action or proceeding insti-
amining magistrate as evidence of want of tuted by one person against another from
probable cause, see note in 3 L.R.A. (X.S.) wrongful or improper motives, and without

probable cause to sustain it (Kline v. As to the conclusiveness of verdict of Hibbard, 80 Hun, 50, 29 X. Y. Supp. 807, guilty set aside or reversed and followed by affirmed without opinion in 155 N. T. 679, acquittal or nolle prosequi as evidence of 49 N. E. 1099, cited in note in 18 L.R.A. probable cause, see note to MacDonald v. (X.S.) 49). In the former the process is Schroeder, 6 L.R.A.(N.S.) 701.

maliciously perverted and abused; in the See also note in 34 L.R.A.(N.S.) 958, as latter it is maliciously used. Cases involvto conviction by magistrate or justice of ing an alleged malicious use of process for peace which has been reversed or set aside which redress was sought in an action for as probable cause.

malicious prosecution are within the limits See “Malicious Prosecution,” Index to of the present inquiry, so far as they deal L.R.A. Notes, pp. 880-882, for other notes with the question considered, whether the on that subject.

process maliciously used was a criminal "Malicious prosecution, regarded as a warrant, order of arrest, writ of replevin, remedy, is a distinctive action ex delicto warrant of attachment, injunction, for the recovery of damages to person, other provisional remedy. property, or reputation, shown to have Unless the contrary is stated or appears proximately resulted from a previous civil by plain implication, the words "plaintiff” or criminal proceeding, which com- and “defendant" are,

rule, used menced or continued without probable throughout this note with reference to the cause, but with malice, and which has parties to the action for malicious proseterminated unsuccessfully. Regarded as a cution, and not to indicate the relation of specific tort, it is the wrong so committed. the parties to the suit or prosecution out The term also sometimes used as the of which the action arose. name of the original judicial proceeding." 26 Cyc. 6.

11. Introduction. I. Scope.

a. Vature of probable cause. The purpose of this note, as the subject

That a

proper and intelligent underwould indicate, is a consideration of the standing of the subject under consideracases involving the question whether the tion, which is by no means an unimportant element of probable cause in actions for one, necessitates a clear idea of the meaning malicious prosecution raises a question of of the term “probable cause." is obvious. law for the determination of the court, or a Tending to this end, probable cause has question of fact for the jury. There are a been more or less frequently defined as: number of actions, such as “malicious ar- “A suspicion founded on circumstances rest," "false imprisonment,” etc., in which sufficiently strong to warrant a reasonable this same question is presented, but they man in the belief that the charge is true." are entirely different and separate reme- Potter v. Seale, 8 Cal. 217. dies (Britton v. Granger, 13 Ohio C. C. 281, “A reasonable ground of suspicion, sur7 Ohio C. D. 182, cited in note in 18 L.R.A. ported by cireunstances sufliciently strong (V.S.) 49) and have been generally exclud. in themselves to warrant a cautious man ed. Vor are actions for malicious abuse of in the belief that the person acensed is legal process within the scope of this note. guilty of the offense with which he is They involve the employment of legal charged.” Munns Dupont, 3 Wash. C. C process by a party for some unlawful ob- 31, Fed. Cas. No. 9,926; Sanders v. Palmer, ject, and not to effect the purpose for which 5 C. C. A. 77, 14 U. S. App. 297, 55 Fed. it was intended by law; while a malicious | 217.







A |

of the District Court for Harvey Coun- 50; Cooper v. Flemming, 114 Tenn. 52, 68 ty in plaintiff's favor in an action brought L.R.A. 849, 84 S. W. 804; Adkin v. Pillen, to recover damages for alleged malicious 136 Mich. 682, 100 N. W. 176. prosecution. Reversed.

The testimony of the county attorney was The facts are stated in the opinion. not privileged. Mr. F. L. Martin for appellant.

23 Am. & Eng. Enc. Law, 58; Alderman Messrs. S. B. Amidon, D. M. Dale, v. People, 4 Mich. 414, 69 Am. Dec. 321; and Jean Madalene, for appellee:

Foster v. Hall, 12 Piek. 89, 22 Am. Dec. If the facts are not in dispute, the ques- 400; Flack v. Neill, 26 Tex. 273; House v. tion is for the court; if they are disputed, House, 61 Mich. 69, 1 Am. St. Rep. 570, the jury must be left to pass upon the ex. 27 N. W. 858; Caldwell v. Davis, 10 Colo. istence or want of probable cause.

481, 3 Am, St. Rep. 599, 15 Pac. 696; Cady Atchison, T. & S. F. R. Co. v. Watson, v. Walker, 62 Mich. 157, 4 Am. St. Rep. 37 Kan. 782, 15 Pac. 877; Drumm v. Cess. 834, 28 V. W. 805; Bacon v. Frisbie, so N. num, 58 Kan. 334, 49 Pac. 78; Stewart v. Y. 394, 36 Am. Rep. 633; Allen v. Harrison, Sonneborn, 98 U. S. 196, 25 L. ed. 120; I 30 Vt. 219, 73 Am. Dec. 302; Rhoades v.

“Such facts and circumstances as would ; tion as the defendant. That is, if a reasoninduce an ingenuous and unprejudiced man, able man would have believed and acted of common capacity, in the defendant's under the circumstances as the defendant situation, to believe the plaintiff to be did, there would be probable cause; otherguilty, would justify a criminal prose- wise not. cution against him." Stone v. Crocker, 24 As has been said: "Probable cause in Pick. 81.

the nature of things is sometimes a state "That apparent state of facts, found to of facts; uncontroverted testimony or unexist upon reasonable inquiry,—that is, impeached records may show such guilt or such inquiry as the given case rendered conduct on the part of plaintiff as to convenient and proper,-which would in- make it out without any reference to, or duce a reasonably intelligent and prudent despite, the mental attitude of defendant. man to believe the accused person had | It sometimes involves a state of mind; committed, in a criminal case, the crime when honesty of knowledge, good faith of charged; and, in a civil case, that a cause belief, fairness of statement to counsel, or of action existed.” Lacy v. Mitchell, 23 the like is in question, the mens rea may be Ind. 67; Indianapolis Traction & Terminal the only matter in issue. Between these ('0. v. Henby, 178 Ind. 239, 97 N. E. 313, self-explanatory extremes, however, there is to the same effect.

is a middle zone of cases in which the au-. “Such conduct on the part of the ac- thorities are in conflict to whether cused as to induce the court to infer that probable cause has reference to facts known the prosecution was undertaken from pub- or to facts in existence at the time of the lic motives." Lavender v. Hudgens, 32 commencement of the proceedings. Proba.' Ark. 763.

ble cause is a state of mind, in this, that The second definition is the one most the facts are regarded from the point of frequently given, perhaps, in actions for view of the prosecutor. The question is criminal prosecutions, but, as has been said: not what the actual facts were, but what “A definition of probable cause sufficiently he had reason to believe they were.” 26 exact to meet satisfactorily every possible Cyc. 23. test would be difficult, if not impossible, to With these few observations in mind, it furnish. The complete legal idea expressed can be plainly seen that no hard and fast by that term is not to be gathered from a rule can be laid down as to what facts and mere definition. But, perhaps, with ref- circumstances in any given case amount to erence to many practical cases, it may be probable cause; but that every case must Dearly accurate to say that probable cause be determined upon its facts, in the light consists of a belief in the charge or facts of its surrounding circumstances, in accordalleged, based on sufficient circumstances to ance with the definition of probable cause reasonably induce such belief in a person prevailing in the particular jurisdiction. of ordinary prudence in the same situa- Probable cause being thus so essentially tion.” Boeger v. Langenberg, 97 Mo. 390, a question of fact, and such questions 10 Am. St. Rep. 322, 11 S. W. 223.

being, under our system of jurisprudence, However, notwithstanding

the many so properly for the determination of the verbal differences apparent in the various jury, rather than the judge, who, as definitions of the courts, there seems to be rule, is to determine only questions of law, substantial agreement among the authori. it would seem, therefore, that the question ties to warrant the statement that the of probable cause is naturally and logically standard of conduct for beginning or con- a question for the determination of the tinuing any proceeding, whether civil or jury. If it is not so determined, its criminal, since, mutatis mutandis, the same position in our system of laws is plainly principles determine probable cause in both anomalous,-a thing which should not be instances, is that of a reasonable or ordi- without good and substantial reason. It narily prudent man placed in the same situa- ! is the theory of our law, and the practice






Selin, 4 Wash. C. C. 715, Fed. Cas. Vo. Mason, J., delivered the opinion of the 11,740; Milan v. State, 24 Ark. 346; Stoney court: v. M'Neil, Harp. L. 557, 18 Am. Dec. 666; 0. E. Matson, while mayor of Burrton, Crosby v. Berger, 11 Paige, 377, 42 Am. verified a complaint charging M. M. MiDec. 117; Hunter v. Watson, 12 Cal. 363, chael and Grace Michael, his wife, with vio73 Am. Dec. 543; Gallagher v. Williamson, lating the prohibitory law, and caused their 23 Cal. 331, 83 Am. Dec. 114; Swaim v. arrest. The county attorney refused to Humphreys, 42 Ill. App. 370; Hatton v. prosecute, and the case was dismissed. Grace Robinson, 14 Pick. 416, 25 Am. Dec. 415; | Michael brought action against Matson People v. Buchanan, 145 N. Y. 1, 39 N. E. for malicious prosecution and recovered a 846; O'Brien v. Spalding, 66 Am. St. Rep. judgment for $600, from which he appeals. 224, note; ('rosby v. Berger, 11 Paige, 377, We think the verdict must be set aside 42 Am. Dec. 117; Matthews v. Hoagland, for the reason that the instructions were so 48 N. J. Eq. 455, 21 Atl. 1054; People v. worded as naturally to lead the jury to unVan Alstine, 57 Mich. 69, 23 N. W. 594, derstand that they were the judges of what 6 Am. Crim. Rep. 272.

constituted probable cause, and their findgenerally, that twelve jurymen, themselves | light of what has already been said concern. presumed to be reasonable men, are better ing the nature of the question of probablo fitted to decide what was the proper con

the overwhelming weight of duct for a reasonable man in a particular thority, both in England and America, suscase than the judge, as the question is: tains the view that what facts, and whether what would reasonable or ordinarily particular facts, constitute probable cause, prudent man have done under the circum- is purely a question of law in any case, stances; and not what one learned in the irrespective of the condition of the evilaw, as the judge is supposed to be, would dence; that when the facts and circumhave done. And as has already been stances relied upon to show probable cause, noticed, it is just this question of the or want of it, are in dispute, or susceptible proper conduct of a reasonable man that is of contlieting inferences of factor thie involved in the determination of the ques. credibility of witnesses is involved, the truth tion of probable cause.

and existence of the facts and circumstances

is a question of fact exclusively for the jury; b. Conspectus.

but whether the facts so found to exist

constitute probable cause is still a question However, notwithstanding the foregoing of law exclusively for the court; and that considerations as to the nature of probable when there is no dispute in the evidence, cause, there is some contlict and considera- and the facts and circumstances are adble uncertainty among the authorities on mitted or clearly established by uncontrothis subject. Much of the latter element verted evidence, there is nothing to submit in particular, it seems, is but the natural to the jury, and the court has only to say result of a loose choice, or niggardly use at once, as a matter of law, whether or not of language on the part of some of the such facts and circumstances constitute courts, so that the holdings in such cases probable cause. are generally difficult to understand, and Considerable confusion exists in this frequently amount to little more than the subject as the natural result of the failure

interpretation of the individual of some of the authorities to properly obreader. As was said in Coleman v. Heu- serve any differentiation between the aprich, 2 Mackey, 189: “The question seems parently contlicting statements, "probable to be by no means free from difficulty, on cause is a question of law," and "probable the words of the authorities, though that cause is a mixed question of law and fact.” difficulty appears to have arisen largely These two statements harmonize perfectly from the want of exactness in the expres- when the former is understood to sions employed in stating the rule.” “what facts and whether particular facts Again, much confusion is caused by courts amount to probable cause is a question of who claim to be in accord with the weight law;" and the latter that "what facts and of authority, yet, failing, it seems, to fully whether particular facts exist is a question appreciate such general rule, establish an- of fact for the jury; but whether such facts other and entirely different rule, as will amount to probable cause is a question of be hereafter noticed. Doubtless, however, law for the court." And it seems quite the primary reason for all the confusion clear that these are the respective senses in and uncertainty in this branch of the law which these statements are generally used. is to be found in the anomalous view of The opinion of the jury as to the existthe question taken by the great weight of ence of the facts may be obtained, it seems, authority, and the desire of the courts to in either of two ways. The prevailing pracescape the inherent dificulties encountered tice appears to be by means of hypothetical in its practical application in nine out of instructions in which the jury are told ten, if not ninety-nine out of a hundred, that if they find certain enumerated facts cases, without expressly abrogating for all, to exist, there was probable cause, and time and purposes the practice of centuries. they must find for the defendant; but if

For, strange though it may seem in the certain other enumerated facts are found





ings show that they probably acted upon 34 N. W. 330, and Davis v. McMillan, 142 that understanding. There is some conflict Mich. 391, 3 L.R.A. (N.S.) 928, 113 Am. on the subject; but the great preponderance St. Rep. 585, 105 N. W. 862, 7 Ann. Cas. of authority favors the view that the ques. 854. This court, however, has consistently tion of what facts are sufficient to consti- adhered to it and given it practical efiect. tute probable cause is one of unmixed law. Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 26 Cyc. 107; 19 Am. & Eng. Enc. Law, 669. 78; Atchison, T. & S. F. R. Co. v. Allen, 70 Courts which acquiesce in the general state. Kan. 743, 79 Pac. 648. In the Drumm-Cessment of the rule sometimes refuse an un- num Case it was said: “Where the facts qualified application of it. For illustra- are disputed, it must be left to the jury to tion, it is approved in Fagnan v. Knox, 66 determine what the facts are; but the court N. Y. 525; Erb v. German American Ins. should instruct what facts amount to probCo. 112 Iowa, 357, 83 N. W. 1053; and Ham- able cause for an arrest and what do not. ilton v. Smith, 39 Mich. 222, 227; but de. The court should summarize the claims of nied application in Heyne v. Blair, 62 N. the parties, and state to the jury what Y. 19; Donnelly v. Burkett, 75 Iowa, 613, | basis of fact must exist to show probabile to exist, there was want of probable | Eng.--Mitchell v. Jenkins, 5 Barn. & Ald. cause, and their verdict must be for the 588, 2 Nev. & M. 301, 3 L. J. K. B. N. S. 35; plaintiff.

Hailes v. Marks, 7 Jur. N. S. 851, 7 Hurlst. And where such is the practice, it is & N. 56, 30 L. J. Exch. N. S. 389, 4 L. T. equally the duty of the court to so collate N. S. 805, 9 Week. Rep. 808; Watson v. tlie evidence and instruct the jury when Whitmore, 8 Jur. 964, 14 L. J. Exch N. S. the facts are numerous and complicated, as 41; Hadrick v. Heslop, 12 Jur. 600, 12 Q. when the same are few and simple. And B. 267, 17 L. J. Q. B. N. S. 313; Chapman in no case can the court, simply by defining v. lleslop, 18 Jur. 348, 2 C. L. R. 139, 23 probable cause to the jury, leave it to them L. J. Q. B. N S. 49, 2 Week Rep. 74; Hill to find whether the facts established in v. Yates, 2 J. B. Moore, 80; Busst v. Gib. the case are within or without the defini- bons, 6 Hurlst. & N. 912; Golding tion, as such practice surrenders to the Crowle, Sayer, 1; Gibbons v. Alison, 3 C. B. jury the court's duty of saying, as a mat- 181; Thughson v. Keith, 10 N. B. 559; Peck ter of law, what is the legal effect of the v. Peck, 35 N. B. 484; Meaney v. Reidfacts found to exist, and leaves both the Newfoundland Co. 39 N. S. 407. questions of law and fact to the arbitra- l'. S.--Stewart v. Sonneborn, 98 U.S. 187, ment of the jury.

25 L. ed. 116; Murray v. McLane, Brunner, The other, and apparently less frequent, Col. Cas. 405, Fed. Cas. No. 9,964; Castro practice for obtaining the opinion of the v. De Uriarte, 16 Fed. 93; Sanders v. Pal. jury on its particular phase of the ques. mer, 5 C. C. A. 77, 14 U. S. App. 297, 55 tion of probable cause, seems to be the use Fed. 217; Knight v. International & G. N. of the special verdict. In this way the R. Co. 9 C. C. A. 376, 23 V. S. App. 356, 61 court gets the opinion of the jury as to Fed. 87; Cragin v. DePape, 86 C. C. A. 559, what facts exist without giving any inti- 159 Fed. 691. mation as to what facts must exist to en: Ariz.-- Donald v. Atlantic & P. R. title either party to win, and upon the facts Co. 3 Ariz. 90, 21 Pac. 338. to ascertained, he determines the existence Ark.-Chrisman v. Carney, 33 Ark. 316; or nonexistence of probable cause as a mat. Foster v. Pitts, 63 Ark. 387, 38 S. W. 1114. ter of law. The special verdict seems, in And see Lemay v. Williams, 32 Ark. 166; many respects, the better practice.

Lavender v. Hudgens, 32 Ark. 763; WhipA few cases sanction the practice when ple v. Gorsuch, 82 Ark. 252, 10 L.R.A. the evidence is conflicting, of defining (N.S.) 1133, 101 S. W. 735, 12 Ann. Cas. probable cause to the jury, and leaving 38, infra. them to decide, in the light of such defini- Cal.- Potter v. Seale, & Cal. 218; Grant tion, whether probable cause for the prose- v. Moore, 29 Cal. 644; Harkrader v. Moore, ition existed or not.

44 Cal. 144; Emerson v. Skaggs, 52 Cal. 246; Rogers v. Mahoney, 62 Cal. 611; Ful.

ton v. Onesti, 66 Cal. 575, 6 Pac. 491; III. General rule.

Eastin v. Bank of Stockton, 66 Cal. 123,

56 Am. Rep. 77, 4 Pac. 1106; Lacey v. a. Generally.

Porter, 103 Cal. 597, 37 Pac. 635; People v.

Kilvington, 104 Cal. 86, 43 Am. St. Rep. 73, The general rule of the common law, sus- 37 Pac. 799; Sandell v. Sherman, 107 Cal. tained by the overwhelming weight of au- 391, 40 Pac. 493; Smith v. Liverpool & L. & thority, both in England and America, is G. Ins. Co. 107 Cal. 432, 40 Pac. 540; Seathat what facts, and whether particular bridge v. McAdam, 108 Cal. 345, 41 Pac. facts, constitute probable cause, is al- | 409; Scrivani v. Dondero, 128 Cal. 31, 60 ways a question of law, which the judge Pac. 463; Runo v. Williams, 162 Cal. 444, must decide upon the facts found to exist 122 Pac. 1082; Carpenter v. Ashley, 15 in the particular case, and which it is error Cal. App. 461, 115 Pac. 268. for him to submit to the decision of the Colo-Wyatt v. Burdette, 43 Colo. 208, jury.

95 Pac. 336; Grimes v. Greenblatt, 47

cause, and what will sustain the claim of, case, such facts had come to the knowledge a want of probable cause.” Page 333. of the defendant at the time he entered the

In the present case the court gave this complaint against the plaintiff is a question instruction: “You are instructed that, to of fact for the jury to determine from a preconstitute probable cause for criminal prose- ponderance of the evidence.” This definicution, there must be such reasonable tion of what constitutes probable cause is grounds of suspicion, supported by circum- doubtless sufficiently accurate, although the stances sufficiently strong in themselves to use of "cautious” in place of “prudent” has warrant an ordinarily cautious man in the been criticized. McClafferty v. Philp, 151 belief that the person arrested is guilty of Pa. 86, 24 Atl. 1012. As it is not the prothe offense charged, and, in this connection, vince of the jury to determine what circumyou are further instructed that a mere be stances would induce a reasonably prudent lief that an innocent person is guilty of a van to believe another guilty of a crime, crime is not alone sufficient to justify caus- there seems to be no purpose in the giving of ing his or her arrest. The facts must be an abstract in-truction on the subject. “Insuch as would justify an ordinarily intel. asmuch as the question of probable cause is ligent and reasonably prudent person in en always to be determined by the court from tertaining such belief. Whether, in this' the facts in each particular case, it would Colo. 495, 107 Pac. 1111, 19 Ann. Cas. 608; , cago, B. & Q. R. Co. 113 Iowa, 532, 85 N. Brooks v. Bradford, 4 Colo. App. 410, 36 | W. 767. Pac. 303; Clement v. Major, 8 Colo. App. Kan.-Parli v. Reed, 30 Kan. 534, 2 Pac. 86, 44 Pac. 776; Williams v. Kyes, 9 Colo. 635; Bell v. Keepers, 37 Kan. 64, 14 Pac. App. 220, 47 Pac. 839.

542; Atchison, T. & S. F. R. Co. v. Watson, Del.-Wells v. Parsons, 3 Harr. (Del.) 37 Kan. 773, 15 Pac. 877; Sweeney v. Per505.

ney, 40 Kan. 102, 19 Pac. 328; Drumm v. D. C.-Coleman v. Heurich, 2 Mackey, | Cessnum, 58 Kan. 331, 49 Pac. 78; MICHAEL 189; Tolman v. Phelps, 3 Mackey, 154; v. MATSON; Markley v. Kirby, 6 Kan. App. Costello v. Knight, 4 Mackey, 65; Porter | 494, 50 Pac. 953; Turney v. Taylor, 8 Kan. v. White, 5 lackey, 180; Slater v. Taylor, App. 593, 56 Pac. 137. 31 App. D. C. 100, 18 L.R.A. (N.S.) 77; Ky.-Faris v. Starke, 3 B. Mon. 4; LanBrown v. Selfridge, 34 App. D. C. 242, af- caster v. McKay, 103 Ky. 616, 45 $. W. firmed in 224 L. S. 180, 30 L. ed. 727, 32 887; Ahrens & O. Mfg. Co. v. Hoeher, 106 Sup. Ct. Rep. 444.

Ky, 692, 51 S. W. 194; Lancaster v. LangsGa.-Pomeroy v. Golly, Ga. Dec. pt. 1, ton, 18 Ky. L. Rep. 299, 36 S. W. 521; p. 26. But see infra, IV.; Coleman v. Al- | Alexander v. Reid, 19 Ky. L. Rep. 1636, len, 79 Ga. 637, 11 Am. St. Rep. 449, 5 14 S. W. 211; Moore v. Large, 20 Ky. L. S. E. 204, as to the rule under statute. Rep. 409, 46 S. W. 308.

Ind.-Brown v. ('onnelly, 5 Blackf. 390; La.---Burkett v. Lanata, 15 La. Ann. 337. Newell v. Downs, 8 Blackf. 525, note; Lacy Me.-L'lmer v. Leland, 1 Me. 135, 10 Am. v. Mitchell, 23 Ind. 67, and note; Pennsyl. Dec. 48; Varrell v. Holmes, 4 Me. 168; vania Co. v. Weddle, 100 Ind. 138; Cottrell | Stevens v. Fassett, 27 Me. 266; Taylor v. v. Cottrell, 126 Jud. 181, 25 N. E. 905; Godfrey, 36 Me. 525; Page v. ('ushing. 38 Terre Haute & I. R. Co. v. Mason, 148 Ind. Me. 523; Marks v. Gray, 42 le. 86; .778. E. 332; Helwig v. Beckner, 149 Humphries v. Parker, 52 vie. 502; Speck v. Ind. 131, 46 N. E. 644, 48 N E. 788; Judson, 63 Me. 207. Ilutchinson v. lenzel, 155 Ind. 49, 56 N. Md.-Cecil v. Clarke, 17 Md. 508; Boyd E. Et): Indianapolis Traction & Terminal v. Cross, 35 Md. 194; Cooper v. Utterbach, Co. v. Henby, 178 Iud. 239, 97 N. E. 313; 37 Md. 317; Medcalfe v. Brooklyn L. Ins. Roberts ". Kendall, 12 Ind. App. 269, 38 Co. 45 Md. 198; Johns v. Marsh, 52 Md. N. E. 424; Indiana Bicycle Co. v. Willis, 323; Thelin v. Dorsey, 59 Md. 539; Hooper 18 Ind. App. 525, 48 N. E. 646; Taylor v. v. Vernon, 74 Md. 136, 21 Atl. 556; CampBaltimore & 0. S. W. R. Co. 18 Ind. App. bell v. Baltimore & 0. R. Co. 97 Md. 341, 692, 48 N. E. 1044; Atkinson v. Van 55 Atl. 532; Chapman v. Nash, 121 Md. Cleave, 25 Ind. App. 508, 57 N. E. 731; 608, 89 Atl. 117; Bishop v. Frantz, Md. Lawrence v. Leathers, 31 Ind. App. 414, 68 93 Atl. 412. And see Kirk v. Garrett, V. E. 179; Sasse v. Rogers, 40 Ind. App. 84 Md. 383, 35 Atl. 1089. 197, 81 N. E. 590; Henderson y. VcGruder, Mass.-Ilemmenway v. Woods, 1 Pick. 49 Ind. App. 682, 98 X. E. 137; Cleveland, 524; Wilder v. Holden, 24 Pick. 8; Stone C. C. & St. L. R. Co. v. Dixon, 51 Ind. App. v. Crocker, 24 Pick. 81; Bacon v. Towne, 4 658, 96 N. E. 815. But see Lytton v. Baird, Cush. 217; Mitchell v. Wall, 111 Mass. 492: 95 Ind. 349; Strickler v. Greer, 95 Ind. 596; Good v. French, 115 Mass. 201; Sartwell v. Keesling v. Doyle, 8 Ind. App. 43, 35 X. E. Parker, 141 Mass. 405, 5 N. E. 807: Kidder 126.

v. Parkhurst, 3 Allen, 393; Parker v. FarIowa.-Center v. Spring, 2 Iowa, 393; ley, 10 Cush. 281. And see Wills v. Xoves, Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 12 Pick. 324. 151; Johnson V. Miller, 82 Jowa, 693, 31 Mich.-Hamilton v. Smith, 39 Mich. 222, Am. St. Rep. 514, 47 N. W. 903, 48 X. W. Wilson v. Bowen, 64 Mich. 133, 31 N. W. 1081; Erb v. German American Ins. Co. 112 81; Huntington v. Gault, 81 Mich. 144, 45 Iowa, 357, 83 N. W. 1053; Knapp v. Chi-'N. W. 970; Filer v. Smith, 96 Mich. 347,

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