father or grandfather to son or grandson. | Woody v. Haworth, 57 N. E. 272, 273, 24 Ind. Levy v. McCartee, 31 U. S. (6 Pet.) 101, 112, App. 634 8 L. Ed. 334. COLLATERAL FACTS. COLLATERAL IMPEACHMENT. A collateral impeachment of a judgment or decree is an attempt made to destroy or evade its effect as an estoppel by reopening the merits of the case, or by showing reasons why the judgment should not be rendered or have a conclusive effect in a collateral proceeding; that is, in any action other than that in which the judgment was rendered, for, if this be done upon appeal, error, or certiorari, the impeachment is direct. Racey v. Racey, 73 Pac. 305, 306, 12 Okl. 650. Collateral facts are those which are not directly involved or connected with the principal issue or matter in dispute, so that Civ. Code, § 5066, providing that if a paper is only incidentally or collaterally material to the case the subscribing witness need not be produced, means where such facts, which yet have a sufficient bearing on the case to be admitted under the rules of evidence, are offered, or are in writing, then because they are collateral and incidental, and because they are not directly involved, the writing COLLATERAL INHERITANCE TAX. may go in without proof of execution by the subscribing witness. Summerour v. Felker, 29 S. E. 448, 450, 102 Ga. 254. The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea? Garner v. State, 25 South. 363, 364, 76 Miss. 515. COLLATERAL GUARANTY. What is called a "collateral inheritance tax" is a bonus exacted from the collateral kindred and others as a condition on which they may be admitted to take the estate left by a deceased relative or testator. The es tate does not belong to them except as the right to it is conferred by the state. Independently of government, no such right ex ists. The right of the owner to transfer it to another after death, or of the kindred to succeed, is the result of municipal regulation, and must consequently be enjoyed subject to such conditions as the state sees fit to impose. Dixon v. Ricketts, 72 Pac. 947, 948, 26 Utah, 215 (citing Strode v. Commonwealth, 52 Pa. 181, 182). In a strict "collateral guaranty" a guarantor undertakes, in the event the principal fails to do what he has promised, to pay damages for such failure. A guarantor undertakes to pay such damages as a result of the principal's default. A surety undertakes to do the particular thing if the principal fails. Nading v. McGregor, 121 Ind. 465, 470, 23 N. E. 283, 6 L. R. A. 686; Newcomb Bros. Wall-Paper Co. v. Emerson, 17 Ind. App. 482, 46 N. E. 1018; Conduitt v. Ryan, 3 Ind. App. 1, 29 N. E. 160; Lane v. Mayer, 15 Ind. App. 382, 44 N. E. 73; Bryant v. Stout, 16 Ind. App. 380, 44 N. E. 68, 45 N. E. 343; Brandt, Sur. (2d Ed.) § 1. A salesman executed a COLLATERAL ISSUE. bond to his employer with sureties, conditioned that whereas the salesman might receive or control moneys, securities, or personal property belonging to his employer, therefore, if he should account for and pay without loss or delay all such moneys, securities, or other personal property so coming into his possession or under his control, and not divert or detain any portion thereof on any pretext whatever, then the obligation to be void, and otherwise to remain in full force. Held, in accordance with the foregoing definition, that the bond was a contract of suretyship, and not of guaranty. Durand & Kasper Co. v. Rockwell, 54 N. E. 771, 772, 23 Ind. App. 11. A collateral inheritance tax is a tax on the property passing from the decedent, and not a mere succession duty imposed on the recipient (In re Bittinger's Estate, 129 Pa. 338, 18 Atl. 132), and hence is within the defect of power to impose it on land outside of the state. In re Handley's Estate, 37 Atl. 587, 181 Pa. 339. The terms "strict guaranty" and "collateral guaranty" do not include a promise of the guarantor to do what another is bound to do, if he shall not do it himself, but such an obligation is distinguished as an "original undertaking" in the nature of a suretyship. Rule 26 of court, providing that no apferred to such an issue as is presented by the peal will be allowed on collateral issues, reof the court for distribution among conflictfollowing example: A fund is in the hands ing judgment liens. Upon the consideration of that matter a controversy springs up as to whether one of the judgments, constitut ing a claim upon the fund, has been extinguished. If this issue is submitted, it is a collateral issue. It is collateral to the matter pending, and must be determined before that matter can be adjusted. But where a debtor of a defendant in execution is called upon, by a summons in garnishment, to say on oath whether he owes anything to such debtor, and he answers negatively, and his answer is traversed, the issue thus presented is original and independent, and not collateral to any supposed issue raised by the summons alone, and consequently a judgment upon it may be appealed from by ei ther party as a matter of right. Strickland default, or miscarriage of another to be in v. Maddox, 4 Ga. 393, 394. writing. Clay v. Walton, 9 Cal. 328, 334. COLLATERAL LIMITATION. If a conveyance gives an interest for a prescribed period, but makes the right to possess or enjoy the thing conveyed to depend upon some collateral event, then the limitation is said to be collateral. Templeman v. Gibbs, 24 S. W. 792, 793, 86 Tex. 358. COLLATERAL LINE. See "Collateral Consanguinity." COLLATERAL MOTION. A motion to docket a cross-complaint as a separate suit is a "collateral motion," requiring a bill of exceptions to bring it into the record. Thiebaud v. Tait (Ind.) 31 N. E. 1052, 1053. COLLATERAL NEGLIGENCE. A failure to safeguard an excavation or opening in a public highway or bridge by those who have assumed that duty from the state makes the party liable to an action. But where a company has assumed the obligation, there is nothing to prevent it from employing a contractor to do the work for him. But by employing a contractor it cannot get rid of its own duty to other people, whatever that duty may be. If the contractor performs the company's duty for it, it is performed by the company through him, and it is not responsible for anything more. It is not responsible for his negligence in other respects, as it would be if he were the company's servant. Such negligence is sometimes called casual or "collateral" negligence. Weber v. Buffalo Ry. Co., 47 N. Y. Supp. 7, 11, 20 App. Div. 292. COLLATERAL PROCEEDING. A "collateral proceeding" is defined as being any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying the judgment or enjoining its execution. Peyton v. Peyton, 68 Pac. 757, 764, 28 Wash. 278. A collateral promise is a promise to answer for the pre-existing debt or liability of a third person, which is founded upon such original liability, without any new consideration. Such promise is required by the statute of frauds to be in writing. Elder v. Warfield (Md.) 7 Har. & J. 391, 395. "In Nelson v. Boynton, 44 Mass. (3 Metc.) 396, 37 Am. Dec. 148, Shaw, C. J., says the terms 'original' and 'collateral' promise are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own. The former, though made before or after or at the same time with the promise, is not valid unless manifested by evidence in writing. The latter, if made on good consideration, is unaffected by the statute, because. although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promisor." Patton v. Mills, 21 Kan. 163, 169; Almond v. Hart, 61 N. Y. Supp. 849, 852, 46 App. Div. 431. "Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may have the effect of extinguishing that liability." An oral promise by the owner of a building, in the process of construction, to pay laboring men, for the purpose of procuring the early completion of the building, is not a collateral promise to answer for the debt of a contractor within the statute of fraud, but is an original undertaking which may be enforced against the owner. Almond v. Hart, 61 N. Y. Supp. 849, 852, 46 App. Div. 431. A proceeding for the condemnation of COLLATERAL PROOF. the right of way for a railroad is a collateral proceeding, so far as concerns the question of the corporate existence of the company seeking the condemnation. Peoria & P. Union R. Co. v. Peoria & F. R. Co., 105 Ill. 110, 116. COLLATERAL PROMISE. "Collateral proof" of a deed is such an account as may reasonably be subjected under all the circumstances of the case, and as will afford a presumption that the deed is genuine. Havens v. Seashore Land Co.. 20 Atl. 497, 501, 47 N. J. Eq. (2 Dick.) 365 COLLATERAL SECURITY. A collateral promise is one whose primary object is to make the promisor the sure- Collateral security "is a separate obliga. ty or grantor of another's debt. Such a tion attached to any contract to guaranty promise is within the statute of frauds, re- its performance" (Bouvier); "is security for quiring a promise to answer for the debt, the performance of covenants, or the pay The use of the term "collateral securi ment of money, besides principal security" | mini confer a right in equity to substitution. (Webster); "is security for the fulfillment of Crump v. McMurtry, 8 Mo. 408, 414. a contract or pecuniary obligation, in addition to the principal security" (Worcester). "There are three kinds of security. The first is simple lien; the second, a mortgage passing a property out and out; the third, the security intermediate between a lien and a mortgage, namely, a pledge where, by contract, a deposit of goods is made a security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt. In all cases of a pledge as collateral security, the general property remains in the debtor. The creditor has only a special property, a lien, a right to retain his security until payment of the debt. When the debt is paid, the security reverts. If default is made, the assignee can proceed to dispose of the security and discharge his debt, and the balance, if any, goes to the assignor or debtor. Butler v. Rockwell, 23 Pac. 462, 466, 14 Colo. 125. "Collateral security," in the phraseology of banks, means some security additional to the personal obligation of the borrower. Schoemaker v. National Mechanics' Bank (U. S.) 21 Fed. Cas. 1331, 1334; D. M. Osborne & Co. v. Stringham, 57 N. W. 776, 778, 4 S. D. 593; Edward P. Allis Co. v. Madison Electric Light, Heat & Power Co., 70 N. W. 650, 652, 9 S. D. 459. "Collateral security" means either a separate obligation attached to a contract to guaranty its performance, or it may mean a transfer of property or other contracts to insure the performance of the principal agreement. Hale v. Burlington, C. R. & N. R. Co. (U. S.) 13 Fed. 203, 205; Gilcrest v. Gottschalk, 39 Iowa, 311, 313; Lochrane v. Solomon, 38 Ga. 286, 292. Collateral, “in its common use, means additional, subsiduary security given to secure the principal obligation. It is a separate obligation. Such collateral security' stands by the side of the principal promise as an additional or cumulative means for securing the payment of the debt. The etymology of 'collateral' security indicates that it is something running along with, and, as it were, parallel to, something else of a similar character. It is collateral to the original indebtedness." Moffatt v. Corning, 24 Pac. 7, 13, 14 Colo. 104. Collateral security "is an article of value or evidence of debt delivered by a debtor to a creditor, not in payment of the debt, but as a concurrent security for another debt, whether antecedent or newly created, and is designed to increase the facilities of the creditor to procure the principal debt which it is given to secure." McCormick v. Falls City Bank (U. S.) 57 Fed. 107, 110. The term "collateral," applied to the security of a third person, does not ex vi ter ty," when a debtor transfers to his creditor an article of value or the evidence of a debt, is intended to express that it is not received in payment of the principal debt, and that it is not an additional right to which the creditor is absolutely entitled. It is merely sidiary to the principal debt, and, if the prina concurrent security for another debt, subcipal debt be paid off, the debtor is entitled to a restoration of the collateral security. Munn v. McDonald (Pa.) 10 Watts, 270, 273. "Collateral security" necessarily implies the transfer to the creditor of an interest in some property, or lien on property, or obligation, which furnishes a security in addition to the responsibility of the debtor. The law regulating this subject rests on the assumption of such transfer to the creditor of property in some form, on which property he relies for security, and which he is entitled to apply, instead of resorting to the debtor's own property, towards the satisfaction of his debt, by virtue of a contract, implied or express, as the case may be, but collateral to the contract of indebtedness. A debtor's additional promises to pay cannot, from the very nature of the case, be treated as collateral security for his debt, unless such additional promises are themselves secured by a lien on property, or by the obligations of third persons. In re Wadell-Entz Co., 35 Atl. 257, 258, 67 Conn. 324. Notes of third persons are "collateral security," within Comp. Laws S. D. § 5468, providing that no person is entitled to a mechanic's lien who takes a collateral security in the same contract. Edward P. Allis Co. v. Madison Electric Light, Heat & Power Co., 70 N. W. 650, 652, 9 S. D. 459. No person will be regarded as holding stock as a trustee or by way of "collateral security," within the meaning of section 9, Wagner's St. p. 301, and therefore exempt from liability as a stockholder, unless it has come into his possession by original subscription as trustee for some person other than the corporation, or by derivative title as trustee, or by way of collateral security after it has already been issued by the corporation in the ordinary course of business. Fisher v. Seligman, 75 Mo. 13, 24. COLLATERAL UNDERTAKING. Where there is a pre-existing debt or other liability, a promise by a third person having immediate respect to and founded on the original liability, without any new consideration moving to him to pay or answer for such debt or liability, is a collateral undertaking within the statute of frauds, as in the case of Fish v. Hutchinson, 2 Wils. 94, which was an action founded upon a promise by the defendant to pay a debt due from a third person to the plaintiff in consideration that the latter would stay his action against such third person. But where, distinct from the original liability, there is a new and superadded consideration for the promise, moving between the party promising and him to whom the promise is made,— in such case it is an original undertaking, as in Williams v. Leper, 3 Burr. 1886, where the defendant, having got possession of goods which were subject to distress for rent in arrear, promised the landlord (the plaintiff) to pay him the rent if he would desist from distraining. Elder v. Warfield (Md.) 7 Har. & J. 391-395. COLLATERAL WARRANTY. "A warranty is collateral where he on whom the warranty descends does not claim the land as heir of him by whom the warranty was made." Micheau v. Crawford, 8 N. J. Law (3 Halst.) 90, 106 (quoting Co. Lit. 375b, 376a, and notes 320, 328; 2 Bl. Comm. 302). COLLATERALS. Rev. Civ. Code, art. 917, permitting natural "collaterals" to inherit, refers to the legal or lawful collaterals. Montegut v. Bacas, 7 South. 449, 450, 42 La. Ann. 158. COLLATION. The "collation" of goods is the supposed or real return to the mass of the succession which an heir makes of property which he receives, in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession. Civ. Code La. 1900, art. 1227. be collected fines, penalties, and all other moneys for school purposes, means that the county clerk is charged with the duty of seeing that the collections mentioned are enforced, but does not authorize the clerk to receive the money. State v. Moeller, 48 Mo. 331, 334. In Rev. St. c. 208, §§ 15, 16, relating to tee shall "collect" and apply the proceeds of trustee process, and providing that the truscertain varieties of property to the payment of the debt and costs, the word "collect" means "to do whatever is necessary to be done to convert the notes, bonds, and other property referred to in the section into money, so that he may apply the same to the payment of the claim." Fling v. Goodall, 40 N. H. 208, 219. Means of collection included. "Authority to collect' implies and includes authority to use the means ordinarily employed for the purpose of accomplishing a collection, and among these are the retaining of counsel and the institution of suit. Indeed, that is generally the only way in which collection can be compelled, and an agent whose duty it is to collect has certainly the implied power to resort to the ordinary and generally the only means of compelling collection. 'Authority to collect' is broader and more comprehensive than ‘authority to receive payment.'" Ryan v. Tudor, 2 Pac. 797, 798, 31 Kan. 366. To "collect" is to gather; to assemble. "When used with reference to the collection of money, it often implies much more than the mere act of receiving the money. An attorney brings suit to enforce the payment of a demand, and the amount recovered is made by the sale of defendant's property on judicial process. The term as applied to such a proceeding would describe not only the act of "Collation" is the bringing the mass of property of an estate together, and so divid-receiving the money, but all the means by which the payment was enforced." Purdy v. ing it that each may have, considering what City of Independence, 39 N. W. 641, 643, 75 he has already received, his proper share. Moore v. Freeman, 35 N. E. 502, 50 Ohio St. 592. The word "collation," in strictness, is applied only to donations inter vivos, and the obligation of collation is founded on equality, which should be natural between children and other lawful descendants. And as applied to the legitim, the word "impute" should be used rather than "collate." Miller v. Miller, 29 South. 802, 805, 105 La. 257. COLLECT-COLLECTION. See "Actually Collected"; "For Collection"; "For Collection and Credit"; "Guaranty of Collection." All sums collected, see "All." Wag. St. p. 1259, § 79, providing that the county clerk should "collect" or cause to Iowa, 356. A city charter which confers on the city the power to levy and "collect" a certain tax is construed so that the city should have power to use all the usual and ordinary McInerny v. Reed, 23 Iowa, 410, 414. means necessary for the collection of the tax. Code Iowa, § 3370, provides that fines and forfeitures not otherwise disposed of shall go into the treasury of the county where the same are collected for the benefit of the school fund. Held, that the word "collected," as there used, meant more than simply the receiving of the money, but included all the acts by which the penalty is imposed and enforced, including the judgment of the court, which is the means by which the penalty is imposed, together with whatever, either by way of imposing or enforcing the penalty, may be or is done in the course of collecting the fine. Pottawattamie County v. | state in which the contract was made. The words "collect taxes," in a statute making it the duty of the county treasurer to collect taxes, means to obtain payment of the same from taxpayers. In most cases such payments will be made voluntarily, but the power to collect carries with it the authority to use force in the manner pointed out by law to obtain payment. Taylor v. Kearney County, 53 N. W. 211, 213, 35 Neb. 381. As used in a notice by a surety on a note after it became due, directing that the payee should at once proceed and collect the note, etc., the term "collect" implies the adoption of the commonly known and most effective means of enforcing collection, if necessary, namely, the commencement of suit. Iliff v. Weymouth, 40 Ohio St. 101, 103. "Collect," as used in Pol. Code Cal., relating to fines, forfeitures, and penalties, is used in its ordinary sense, and when so used, and no other meaning is manifested, the word "collect," and its cognates or derivatives, signify the obtaining of money without suit. People v. Reis, 18 Pac. 309, 313, 76 Cal. 269. "Collection," as used in a note which provides that 10 per cent. attorney's fees shall be paid if the note is placed in the hands of an attorney for collection, means that which may lawfully be done by the holder of the obligation to secure its payment or liquidation after its maturity. Shenandoah Nat. Bank v. Marsh, 56 N. W. 458, 459, 89 Iowa, 273, 48 Am. St. Rep. 381. Where the caption of an act was "to provide for the collection of the special taxes imposed by law on dealers in spirituous or malt liquors and intoxicating liquors, and for other purposes," and in the body of the act it was provided that upon failure to pay such tax the dealer might be indicted and punished for a misdemeanor, the provision for an indictment and punishment was not objectionable as an insertion of matter different from the title. Code, § 809 (g, h); Brown v. State, 73 Ga. 38, 39. The term "collection," as applied to the guaranty of a note, may undoubtedly imply a legal proceeding against the maker. If it is impracticable to use the ordinary means of coercing payment in consequence of the maker having gone to parts unknown or beyond the reach of legal proceedings, a reasonable construction of the word would control the implied obligation, which on the face of the guaranty was prima facie impossible. The term "collection" alone is equivocal. A reasonable construction would seem to be a warranty that the note could be collected by suit, and an implication not only of ability on the part of the maker to pay, but that he would be in a situation to be sued within the "Collection," as used in a stipulation in a note providing for the payment of attorney's fees in case the note should be collected ment, and, where the note when sued upon by an attorney, refers only to the money paytion was not a collection. was paid by giving a new note, such satisfacDavis v. Cochran, 24 South. 168, 169, 76 Miss. 439. Gantt's Dig. § 2103, providing that no appeal shall be taken from a justice's judgment after it has been "paid or collected," does not include giving a mortgage for a fine adjudged to the state. Floyd v. State, 32 Ark. 200, 202. As equivalent to recovery. "Collection," as used in a petition for the foreclosure of a mortgage, alleging that no proceeding had been had for the collection of the debt secured, is equivalent to recovery, and hence the petition complies with Code Civ. Proc. § 850, requiring complainant to state whether any proceedings have been had at law for the recovery of the debt secured. Durland v. Durland, 87 N. W. 1048, 1049, 62 Neb. 813. Not applicable to realty. In a will where a testator directed his executor to "collect all the above last-named specified property" collect can only apply to personalty, or can only apply to the proceeds of the sale of realty, and not the realty itself. Going v. Emery, 33 Mass. (16 Dick.) 107, 112, 26 Am. Dec. 645. COLLECT ON DELIVERY. See "C. O. D." COLLECTED BY HIM. The phrase "moneys collected by him," in a will appointing three executors, and directing that one of them should receive as compensation 6 per cent. upon all moneys collected by him, does not include the entire proceeds of the estate, or upon all sums received by the executor, but only on "collections," giving the word its ordinary meaning. Ireland v. Corse, 67 N. Y. 343, 345. COLLECTIBLE. See "Good and Collectible Note." An agreement by an outgoing partner, on dissolution, to pay the continuing partner half of the outstanding accounts which are not "collected or collectible," does not require a suit to establish the collectibility of a claim uncollected after a reasonable length of time. Fellerman v. Goldberg, 58 N. Y. Supp. 1113, 1114, 28 Misc. Rep. 235. |