tion not existing in the pleading demurred to: Buddick v. Marshall, 23 Iowa, 243.

other respects.

But though it cannot supply omissions, an exhibit may explain, amplify, or even counteract allegations defective in The averments of a pleading may be made certain by a reference to diagrams filed with and made a part of the pleading: Booker . Ray, 17 Ind. 522; Kenny v. Municipality No. 2, 12 La. Ann. 500. An exhibit, containing an itemized statement of property and values, may be used to explain a general allegation of indebtedness (and may save the pleader the necessity of furnishing a bill of particulars): Rider . Robbins, 13 Mass. 284: Caspary v. Portland, 19 Oreg. 496; S. C., 24 l'ac. Rep. 1036. And justifies the admission of evidence in support of the items appearing in it: Lockhart v. Morey, 41 La. Ann. 1165; S. C., 4 So. Rep. 581.

A copy of a note annexed to a complaint, and referred to in the body of the complaint as an exhibit, may properly be referred to by the court to ascertain the form and contents of the note: Ward v. Clay, 82 Cal. 502; S. C., 23 Pac. Rcp. 50. An allegation that a certain written and printed contract, a copy of which is annexed to the complaint, contains the terms and conditions of the agreement between the parties, is an allegation of fact that the terms and conditions contained in the annexed paper were agreed on between the parties: Bishop v. Empire Transp. Co., 33 N. Y. Super. Ct. 99. And when several defendants are sued, and judgment is prayed against all in solido, the defect of the petition in not specifically alleging that one of them is indebted, is cured by annexing and making part of the petition a bond exhibiting his liability, by his answer without exception, and by the admission of proof without objection: McLellan Dry Dock Co. v. Farmers' Alliance Steamboat Line (La.), 9 So. Rep. 630.

An exhibit may prevent a variance: Peters v. Crittenden, 8 Tex. 131; Greenwood v. Anderson, 8 Tex. 225, and will control and cure any misdescription of it in the body of the petition : Pyron Grinder, 25 Tex. 159; Spencer v. McCarty, 46 Tex. 213; Longley v. Caruthers, 64 Tex. 287. When the instrument sued on is made part of the petition, the

court will give it the legal effect to which it is entitled, though it may have been misconceived by the pleader: Beal v. Alexander, 6 Tex. 531. It has ever been held that if an exhibit is referred to in a pleading, and its inspection shows facts contradictory of the allegations thereof, the exhibit will control on demurrer, and not the allegations of the pleading: Freiberg v. Magale, 70 Tex. 116; S. C., 7 S. W. Rep. 684This can only be truc, however, when the exhibit is material to the pleader's case, and shows clearly on its face that the allegations of the plea are untrue.

Though the practice of pleading exhibits is improper and pernicious, yet, if the case has been permitted to go on to judgment without objection, and the pleadings themselves contain facts sufficient to constitute a cause of action, the judgment will be allowed to stand: Crawford v. Satterfield, 27 Ohio St. 421..

II. Under Statutory Provisions.—This question has become of great importance, in view of the almost universal statutory requirements that copies of certain instruments be filed with the pleadings based upon them. Are such provisions so far derogatory of the common-law rules of pleading as to permit the neglect of averments otherwise necessary, and the supplying them by the instrument filed, or must the old rules still be observed ?

It must be noticed in the first place that these provisions scem for the most part to have no reference to pleading. The instruments to be annexed to the pleading are mainly those of which oyer could not be had, and as to which, of course, the defendant had no means, in many cases, of preparing a full defence. The statute was made for his benefit, not to relieve the plaintiff from any duty that lay upon him; and on general principles, therefore, such provisions ought not to relieve him from the obligation of properly stating his cause of action.

Accordingly, in many of the States where this question has been raised, it has been decided that the annexation of the required instrument as an exhibit does not supply the omission of material averments in the pleading; that the pleadings, and the pleadings alone, must state the material facts neces

sary to constitute the cause of action or the defence relied on; and that if they do not they will be demurrable: Dodd r. King, 1 Metc. (Ky.) 430; Hill v. Barrett, 14 B. Mon. (Ky.) 83; Vaughn v. Mills, 18 B. Mon. (Ky.) 634; Larimore v. Wells, 29 Ohio St. 13; Johnson v. Home Ins. Co., 3 Wyo. 140; S. C., 6 Pac. Rep. 729; Hartford Fire Ins. Co. v. Kahn (the principal case) (Wyo.). 34 Pac. Rep. 894.

In Arkansas, the matter seems to be undecided: Railroad v. Park, 32 Ark. 131, held that the exhibits required by statute formed no part of the pleadings; but in Abbott v. Rowan, 33 Ark. 593, it was suggested that on demurrer they might be considered part of the record, and in Beavers v. Baucum, 33 Ark. 722, it was definitely ruled that such exhibits would even control an averment in the pleadings. Yet this does not say that they will supply a material omission.

In Indiana, however, under the wording of the statute, Rev. Stat., § 362, it has been expressly decided that when the required exhibit is filed it becomes a part of the pleadings, and its contents need not be stated: Mercer v. Hebert, 41 Ind. 459. The same appears to be the case in Illinois: Nauvro ". Ritter, 97 U. S. 389.

If the instrument is wrongly set out in the pleading the exhibit controls: Cotton. State, 64 Ind. 573. But it is acknowledged everywhere that an exhibit, not required by statute, is not a part of the pleadings: Fuller v. Railroad, 18 Ind. 91; Armstrong . McLaughlin, 49 Ind. 370; Watkins 7. Brunt, 53 Ind. 208; Logansport ?. La Rose, 99 Ind. 117; Dumbruld ". Rowley (Ind.), 15 N. E. Rep. 463; Plunkett ". Black, 117 Ind. 14; S. C., 19 N. E. Rep. 537; Ross v. Menefee, 125 Ind. 432; S. C., 25 N. E. Rep. 545; Barnes v. Mowry, 129 Ind. 568; S. C., 28 N. E. Rep. 535; Dukes v. Cole, 129 Ind. 137; S. C., 28 N. E. Rep. 441; Railroad v. Smith (Ind.), 29 N. F. Rep. 1075; Abbott ». Rowan, 33 Ark. 593.

In general, therefore, it may be taken as the rule of the common law, still prevalent except where expressly altered by statute, that while an exhibit may be regarded as a part of a pleading for the purpose of explaining, amplifying, or particu

larizing, or even, in special cases, for the purpose of correcting erroneous allegations therein, it can never be resorted to to supply the omission of a material allegation.

III. In Equity-The rule in equity is that exhibits become part of the pleadings, and serve to help out allegations therein, in case they do not give some necessary particulars of the writing exhibited, or do not state its effect with accuracy: Brown 7. Redwyne, 16 Ga. 67; Bolton v. Flourney, R. M. Charlt. (Ga.), 125: Mintier v. Branch Bank of Mobile, 23 Ala. 762; Surget v. Byers, 1 Hempst. 715; Armitage v. Wickliffe, 12 B. Mon. (Ky.), 488. As a corollary such an exhibit will, on demurrer, control the allegations of the complaint: Buckner v. Davis, 29 Ark. 444. Yet, if the bill show a cause of action on its face, the court will not look to the exhibit for the purpose of contradicting its allegations, and so making a demurrer effective: Terry v. Jones, 44 Miss. 540; Holman v. Patterson, 29 Ark. 357.

Some few cases have controverted this view. In King v. Trice, 3 Ired. (N. C.) Eq. 568, it was attempted to assimilate the equity rule to that of the common law, and it was held that the contents of the exhibit should be set out sufficiently in the pleading to which it is attached. "The purpose of annexing exhibits is not to enable the pleader to make the pleadings mere skeletons, not in themselves containing the facts and points in controversy, but to obtain an admission of their genuineness from the other side, and for greater certainty as to their contents, and as aiding in the construction from the context." So, in Buck v. Fisher, 2 Colo. Ty. 182, it was held that complainants who sue as representatives of an estate should show that they are such in the bill, and it is not sufficient that the fact should appear in an exhibit attached thereto. This may be true of a fact in which the right to maintain the action depends; but in regard to any other facts the equity rule undoubtedly is, as shown by the cases cited above, that an exhibit becomes part of the pleadings, and will aid them, not merely by explaining and supplementing them, but by supplying omissions therein.

ARDEMUS STEWART.

NOTES AND COMMENTS ON RECENT DECISIONS.

IMPUTED NEGLIGENCE.

Persons riding in private vehicles, etc., at invitation of owner.

The Supreme Court of Montana in Whittaker v. City of Helena, 35 Pac. Rep. 904, has recently added itself to the few courts which uphold the erroneous doctrine that a person who is riding in a private vehicle at the invitation of the owner is chargeable with the contributory negligence of the latter. This decision is not supported by any independent reasoning, but rests wholly on the authority of Prideaux v. Mineral Point, 43 Wis. 513. That case argues the matter as follows:

"One voluntarily in a private conveyance voluntarily trusts. his personal safety in the conveyance to the person in control of it. Voluntary entrance into a private conveyance adopts. the conveyance, for the time being, as one's own, and assumes the risk of the skill and care of the person guiding it. Pro hac vice, the master of a private yacht, or the driver of a private carriage, is accepted as agent by every person voluntarily committing himself to it."

This case, however, stands almost alone, and is opposed to an overwhelming weight of authority, as was clearly shown by an annotation on this very subject in Vol. 32 of this MAGAZINE, p. 763; and is moreover opposed to every principle of law and justice. One person cannot be held responsible for the acts of another unless there is some relation between them that will make those acts in legal effects the acts of the fornier. The only relations that have this effect are those of principal and agent, including master and servant, and that anonymous relation, akin to conspiracy in criminal law, which exists between those engaged in the prosecution of a joint enterprise, and by which each, though equally a principal with the others is also, to all intents and purposes, the agent of each of them.