statements in application by brokers to whom he has applied to effect insurance; Northrup v. Piza, 43 App. Div. 289, 60 N. Y. Supp. 363, holding knowledge of brokers not binding on company.

Effect of custom on agent's authority.

Cited in Harnden v. Milwaukee Mechanics' Ins. Co. 164 Mass. 386, 49 Am. St. Rep. 467, 41 N. E. 658, holding delivery of proofs of loss to local agent binding on company, where sanctioned by custom; Marshall v. Reading F. Ins. Co. 78 Hun, 85, 29 N. Y. Supp. 334, holding company bound as to innocent insured. in spite of cancelation of agency, where signed policies left in agent's possession; Forward v. Continental Ins. Co. 142 N. Y. 389, 25 L. R. A. 640, 37 N. E. 615, holding conditions of policy against encumbrances not available as defense where ownership, truly communicated to agent having apparent authority to waive same.

10 L. R. A. 613, WHEELER v. WHEELER, 134 Ill. 522, 25 N. E. 588. Effect of statute conferring special jurisdiction.

Cited in Keister v. Keister, 178 Ill. 104, 52 N. E. 946, dismissing bill for partition which is in effect attempt to obtain statutory contest of will after lapse of prescribed period; Chicago Title & T. Co. v. Brown, 183 III. 49, 47 L. R. A. 801, 55 N. E. 632, denying jurisdiction of suit to annul probate where begun after period limited by statute; Storrs v. St. Luke's Hospital, 180 Ill. 372, 72 Am. St. Rep. 211, 54 N. E. 185, Affirming 75 Ill. App. 156, holding son of interested party dying non compos mentis not entitled to contest will where not personally interested thereunder; Spaulding v. White, 173 Ill. 130, 50 N. E. 224, upholding amendment to statute shortening time within which will contestable, where reasonable time allowed for pending contests.

10 L. R. A. 616, STATE ex rel. COCHRAN v. WINTERS, 44 Kan. 723, 25 Pac. 235. “Original package."

Cited in McGregor v. Cone, 104 Iowa, 471, 39 L. R. A. 487, 65 Am. St. Rep. 522, 73 N. W. 1041, holding pine box in which packets of cigarettes shipped, "original package;" Guckenheimer v. Sellers, 81 Fed. 998, holding crate original package where bottled liquor shipped therein.

Importation of intoxicating liquors.

Cited in footnotes to State v. Rhodes, 24 L. R. A. 245, which holds liquors in state on crossing boundaries; Hopkins v. Lewis, 15 L. R. A. 397, which holds sale of contents of packages in which liquor imported not sale by original packages.

State regulation of commerce.

Cited in footnotes to Re Sanders, 18 L. R. A. 549, which holds void as to original packages act requiring marking on package of year in which seed grown; Com. v. Zelt, 11 L. R. A. 602, which holds state may make sale of liquor in original packages to intemperate person, a criminal offense; Burrows v. Delta Transp. Co. 29 L. R. A. 468, which sustains validity of state statute requiring fire screens on vessels burning wood; Re Gooch, 10 L. R. A. 830, which holds state cannot prohibit sale of oleomargarine as imported from other state.

Cited in notes (12 L. R. A. 624) on imports in original package subject to state police power; (13 L. R. A. 107) on power of state law to regulate interstate commerce; (60 L. R. A. 664) on corporate taxation and the commerce clause.

Jurisdiction of Federal courts in habeas corpus.

Cited in footnote to King v. McLean Asylum, 26 L. R. A. 784, which sustains Federal jurisdiction of habeas corpus case between citizens of different states involving right to liberty from restraint as insane person.

10 L. R. A. 620, STEPHENSON v. REPP, 47 Ohio St. 551, 25 N. E. 803. Anticipating breach of obligation.

Cited in Sloss Marblehead Lime Co. v. Smith, 11 Ohio C. C. 215, sustaining action brought for breach of contract before expiration of period of performance, where it has been wholly repudiated.

Distinguished in Hickle v. Hickle, 6 Ohio C. C. 503, holding husband not entitled before divorce to damages for wife's breach of obligation to support, but to equitable lien only.

10 L. R. A. 621, ANTCLIFF v. JUNE, 81 Mich. 477, 21 Am. St. Rep. 533, 45 N. W. 1019.

Malicious prosecution.

Cited in Kolka v. Jones, 6 N. D. 465, 66 Am. St. Rep. 615, 71 N. W. 558, holding repeated prosecution for same cause of action gives right of action though no seizure of property, arrest of person, or special circumstances.

Cited in footnotes to McCormick Harvesting Mach. Co. v. Willan, 56 L. R. A. 338, which authorizes suit for malicious prosecution of civil action without restraint of person or seizure of property; Sneeden v. Harriss, 14 L. R. A. 389, which authorizes action for malicious abuse of civil process to accomplish collateral purpose; Swepson v. Davis, 59 L. R. A. 501, which denies right of defendant in partnership accounting against whom small judgment rendered, to sue for malicious prosecution though successful on some issues.

Cited in notes (13 L. R. A. 60) on general rules as to malicious prosecution; (13 L. R. A. 464) on what must be shown in action for malicious prosecution; (12 L. R. A. 760) on defense of reasonable and probable cause in action for malicious prosecution.

Distinguished in Waring v. Fletcher, 152 Ind. 629, 52 N. E. 203, holding no liability on undertaking in attachment though proceeding wrongful and malicious. -Time of beginning suit.

Cited in Dishaw v. Wadleigh, 15 App. Div. 210, 44 N. Y. Supp. 207, sustaining action commenced before termination of prior suit in which subpoena was used to procure payment of claim instead of attendance of witness.

Cited in footnotes to Luby v. Bennett, 56 L. R. A. 261, which holds suit for malicious prosecution maintainable if material issues of prosecution decided in defendant's favor before suit commenced; Zinn v. Rice, 12 L. R. A. 288, which holds action for excessive attachment of goods maintainable before termination of suit.

Distinguished in King v. Johnston, 81 Wis. 580, 51 N. W. 1011, holding complaint insufficient where termination of criminal prosecution and abuse of process are not alleged.

Evidence of malice.

Cited in Severns v. Brainard, 61 Minn. 267, 63 N. W. 477, holding repetition of actions for same groundless cause admissible to show malice.

356

L. R. A. CASES AS AUTHORITIES.

Defenses.

[10 L. R. A.

Cited in footnote to Le Clear v. Perkins, 26 L. R. A. 627, which holds advice of counsel admissible as defense to malicious prosecution of civil suit.

Constitutionality of statute.

Cited in O'Connell v. Menominee Bay Shore Lumber Co. 113 Mich. 126, 71 N. W. 449, holding statute permitting service of process outside of jurisdiction of justice of peace in certain cases, void as class legislation.

10 L. R. A. 627, HAVEMEYER v. SUPERIOR COURT, 84 Cal. 327, 18 Am. St. Rep. 192, 24 Pac. 121.

Dissolution of corporation.

Cited in Nelson v. Hubbard, 96 Ala. 245, 17 L. R. A. 378, 11 So. 428, holding suits against corporation dissolved by vote of stockholders not thereafter maintainable under statutory provisions for suits against corporations dissolved by forfeiture, etc.

Appointment of receiver.

Cited in Ferrell v. Evans, 25 Mont. 454, 65 Pac. 714, refusing to appoint receiver of corporation on expiration of charter, in absence of mismanagement by statutory trustees; Weatherly v. Capital City Water Co. 115 Ala. 173, 22 So. 140, refusing appointment of receiver of corporation forfeiting charter, where incompetency or untrustworthiness of statutory trustees not shown; Gibson v. Thornton, 107 Ga. 563, 33 S. E. 895, holding insolvency of corporation through director's mismanagement does not authorize order of dissolution and appointment of receiver in absence of statutory authority; San Jose Safe Deposit Bank of Savings v. Bank of Madera, 121 Cal. 545, 54 Pac. 85, holding appointment of receiver to collect rents improper where stay bond to amount of money judgment given, on appeal in action by mortgagee not asking foreclosure; People ex rel. Building & L. Asso. Comrs. v. Union Bldg. & L. Asso. 127 Cal. 407, 58 Pac. 822, striking out appointment of receiver, where record of judgment appealed from fails to show either pleading or finding of essential facts.

Cited in note (20 L. R. A. 211) on statutory proceedings for appointment of receiver.

Who entitled to receiver.

Distinguished in San Antonio Gas Co. v. State, 22 Tex. Civ. App. 126, 54 S. W. 289, holding court justified under statute in appointing receiver of corporate property on judgment forfeiting charter, although not applied for by interested party.

Allowance of extraordinary remedy.

Cited in State ex rel. Hamilton v. Guinotte, 156 Mo. 527, 50 L. R. A. 795, 57 S. W. 281, granting certiorari to review probate order revoking letters of administration, though review by appeal available.

Cited in note (51 L. R. A. 36, 46, 54, 58, 75, 81, 107-109) on superintending control and supervisory jurisdiction of the superior over the inferior or subordinate tribunal.

Cited in Fischer v. Superior Court, 110 Cal. 140, 42 Pac. 561, issuing writ to prevent enforcement of void order placing receiver in possession of corporate

property; State ex rel. McCaffery v. Aloe, 152 Mo. 484, 47 L. R. A. 399, 54 S. W. 494, granting writ although no application to lower court for regular remedies, where latter inadequate; Board of Education v. Holt, 51 W. Va. 436, 41 S. E. 337, issuing writ against execution of injunction by circuit court, where its lack of jurisdiction had been previously called to its attention; State ex rel. AnheuserBusch Brewing Asso. v. Eby, 170 Mo. 521, 71 S. W. 52, holding that prohibition may issue to lower court to prevent trial of certain cases though lack of jurisdiction not raised below; Hartigan v. West Virginia University, 49 W. Va. 49. 38 S. E. 698 (dissenting opinion), majority holding writ cannot issue to prevent execution of order of board of regents removing professor.

Distinguished in White v. Superior Court, 110 Cal. 58, 42 Pac. 480, refusing writ where appeal from order prevents sale of property to satisfy decree for alimony; State ex rel. Boston & M. Consol. Copper & S. Min. Co. v. Second Judicial Dist. Court, 22 Mont. 235, 56 Pac. 219, refusing writ to prevent removal of corporate trustees by court of doubtful jurisdiction where no injury imminent.

Immaterial issue.

Cited in Taylor v. Hill, 115 Cal. 151, 44 Pac. 336, holding failure to give judgment creditor notice of labor claim, waived by his appearance and answer in statutory attachment proceeding against proceeds of execution.

10 L. R. A. 650, HAVEMEYER v. SUPERIOR COURT, 87 Cal. 267, 25 Pac. 433. Right of possession by receiver.

Cited in note (20 L. R. A. 393) on exclusiveness of jurisdiction by appointment of receiver.

10 L. R. A. 653, SLATTERY v. O'CONNELL, 153 Mass. 94, 26 N. E. 430. Imputed negliger-ce and contributory negligence, of children.

Cited in Creed v. Kendall, 156 Mass. 293, 31 N. E. 6, holding no contributory negligence as matter of law where three-year-old child left playing in yard, strayed into street and injured by recently dug hole of which mother ignorant; McNeil v. Boston Ice Co. 173 Mass. 577, 54 N. E. 257, holding negligence for jury where mother permitted two-and-a-half-year-old child to play on unguarded street lot with five-year-old child; Powers v. Quincy & B. Street R. Co. 163 Mass. 7, 39 N. E. 345, holding negligence for jury where mother did not immediately follow small child into street; West Chicago Street R. Co. v. Liderman, 187 Ill. 473, 52 L. R. A. 659, 79 Am. St. Rep. 226, 58 N. E. 367, Affirming 87 Ill. App. 640, holding negligence for jury where mother injured in attempt to rescue straying child from cable cars; O'Brien v. Hudner, 182 Mass. 383, 65 N. E. 788, holding mother not negligent by letting eight-year-old child go out with older sister to play in yard; Mellen v. Old Colony Street R. Co. 184 Mass. 401, 68 N. E. 679, holding father not negligent in allowing four-year old child to play in yard inclosed by fence.

Cited in footnote to Worthington v. Mencer, 17 L. R. A. 407, which holds contributory negligence not chargeable to one unable to apprehend danger.

Cited in notes (17 L. R. A. 78) on contributory negligence of parent; (12 L. R. A. 217) on contributory negligence of infant of tender years; (17 L. R. A. 79) on contributory negligence of child as question of fact for jury; (37 L. R. A. 74) on which of two or more persons is the master of another who is conceded to be the servant of one of them.

358

L. R. A. CASES AS AUTHORITIES.

[10 L. R. A. Distinguished in Grant v. Fitchburg, 160 Mass. 17, 39 Am. St. Rep. 449, 35 N. E. 84, refusing recovery by mother for injury to child permitted to stray upon street unattended for fifteen minutes.

10 L. R. A. 656, ROBERTS v. FRENCH, 153 Mass. 60, 25 Am. St. Rep. 611, 26 N. E. 416.

Falsity of representations as ground for relief.

Cited in Whiting v. Price, 169 Mass. 577, 61 Am. St. Rep. 307, 48 N. E. 772, holding detailed statement of securities of bond sold, entitles vendee to recover price, though unintentionally false; Burns v. Dockray, 156 Mass. 138, 30 N. E. 551, holding vendee may maintain action for false representations as to validity of title, though examination thereof made by third party at vendee's request prior to purchase; Hoock v. Bowman, 42 Neb. 83, 47 Am. St. Rep. 691, 60 N. W. 389, holding vendee may rescind purchase contract of lot falsely represented on chart by vendee as corner lot; Keene v. Demelman, 172 Mass. 22, 51 N. E. 188, holding vendor entitled to rescind, where his warranty of area of tract sold obtained by vendee's fraud.

Cited in notes (37 L. R. A. 610) on right to rely on representations made to effect contract as basis for charge of fraud; (35 L. R. A. 429) on expression of opinion as fraud.

Distinguished in Way v. Ryther, 165 Mass. 229, 42 N. E. 1128, holding vendor's statement of cost price to him no defense to vendee's purchase note on ground of fraud.

10 L. R. A. 658, COY v. JONES, 30 Neb. 798, 47 N. W. 208. Statutory liability of stockholders for debts.

Distinguished in Pickering v. Hastings, 56 Neb. 204, 76 N. W. 587, holding single creditor cannot enforce statutory liability against single stockholder for his benefit alone.

-Nature.

Cited in Nebraska Nat. Bank v. Walsh, 68 Ark. 440, 82 Am. St. Rep. 301, 59 S. W. 952, holding limitation applicable to civil liability governs stockholder's statutory obligation to pay corporate debts.

Overruled in Globe Pub. Co. v. State Bank, 41 Neb. 193, 27 L. R. A. 861, 59 N. W. 683, holding statute rendering stockholders liable for corporate debts on failure of directors to file annual report, penal in nature.

10 L. R. A. 659, EDWARDS v. CLARK, 83 Mich. 246, 47 N. W. 112. Breach of covenant against encumbrances.

Cited in Demars v. Koehler, 62 N. J. L. 208, 72 Am. St. Rep. 646, 41 Atl. 720, holding grantee may maintain action on covenant though aware of outstanding encumbrance when deed accepted; Browning v. Stillwell, 42 Misc. 348, 86 N. Y. Supp. 707, and Wragg v. Mead, 120 Iowa, 322, 94 N. W. 856, holding rental value of land for unexpired term measure of damages when breach of covenant outstanding lease.

Parol evidence.

Cited in Providence Washington Ins. Co. v. Board of Education, 49 W. Va.