[Concluding part.]

9. Contributory negligence.

1. Nature of acts.-Constitutionality.The civil damage acts are purely statutory: Farrell v. Drees, 41 Wis. 186; and such acts are generally held to be constitutional: Franklin v. Schermerhorn, 8 Hun 112; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323; State v. Ludington, 33 Wis. 107.

2. Parties to action.-A poor person dependent for support upon a relative under the provisions of the statute may maintain action in his own name and for his own benefit, where he has been deprived of such support through the acts of a vendor of intoxicating liquors, and this independently of action by the county commissioners for the offense: Fitzgerald v. Donoher, 48 Neb. 852, 67 N. W. 880.

3. The wife may sue in her own right, or she may join the children with her: Wardell v. McConnell, 23 Neb. 152, 36 N. W. 278; or the widow may sue: Fink v. Garman, 40 Pa. (4 Wright) 95; or any minor child injured, within the contemplation of the acts: Bloedel v. Zimmerman, 41 Neb. 695, 60 N. W. 6, (in which case the sureties on the bond of the liquor-seller were held to be properly joined as defendants); or a father

where he is wholly dependent upon his son may sue: Stevens v. Cheney, 36 Hun 1; or the mother; Clinton v. Laning, 61 Mich. 355, 28 N. W. 125, (where the son was an adult); or the parent of a minor: McNeil v. Collinson, 130 Mass. 167; or, generally, any person injured as a result of the intoxication, the statute so reading: Flower v. Witkovsky, 69 Mich. 371, 37 N. W. 364.

4. The intoxicated person himself may under certain statutes recover against the saloon-keeper: Buckmaster v. McElroy, 20 Neb. 557, 31 N. W. 76, 57 Am. Dec. 843.

5. A physician who rendered professional services to an intoxicated person, held not entitled to sue for such services under a statute providing that one shall be liable for and compelled to pay a reasonable compensation "to any person who may take charge of and provide for such intoxicated person," etc.: Samson v. Greenough, 55 Iowa 127, 7 N. W. 482.

6. Averment as to kind of liquor sold unnecessary.-The complaint is not required to allege the kinds of liquor sold: Edwards v. Brown, 67 Mo. 377; nor necessarily the particular place of sale:

Gustafson v. Wind, 62 Iowa 281, 17 N. W. 523.

7. Damages.-As to measure of compensatory damages under civil damage acts, see Goodenough v. McGrew, 44 Iowa 670, Huggins v. Kavanagh, 52 Iowa 368, 3 N. W. 409; Sellars v. Foster, 27 Neb. 118. 42 N. W. 907; Freese v. Tripp, 70 Ill. 496; Brantigam v. While, 73 Ill. 561; Kearney wFitzgerald, 43 Iowa 580.

8. As to exemplary damages, when and when not allowed: Meidel v. Anthis, 71 Ill. 241; Brannon v. Silvernail, 81 Ill. 434; Goodenough v. McGrew, 44 Iowa 670; Flint v. Gauer, 66 Iowa 696;

Roose v. Perkins, 9 Neb. 304, 2 N. W. 715, 31 Am. Dec. 409; Neu v. McKechnie, 95 N. Y. 632, 47 Am. Rep. 89.

9. Contributory negligence to defeat the action must be that of the plaintiff. Davies v. McKnight, 146 Pa. 610, 23 Atl 320, (where the deceased was held not guilty of contributory negligence); Engelken v. Hilger, 43 Iowa 563, (where wife's acts contributed to her husband's intoxication); Ward V. Thompson. 48 Iowa 588, (where the acts of the wife in purchasing liquor for her husband was held not contributory, inasmuch as she acted under compulsion).

cealed or removed from this state his property, or so much thereof that the process of the court, after judgment, can not be executed, or that the defendant has money or securities for money, or evidence of debt, in the possession of himself, or of others for his use, and is about to depart from this state without leaving property therein sufficient to satisfy the plaintiff's claim.

e Idaho, § 4241.

The defendant may be arrested as hereinafter prescribed, in the following cases:

1. In an action for the recovery of money or damages on a cause of action arising upon a contract express or implied where the defendant is about to depart from the state with intent to defraud his creditors, or when the action is for wilful injury to person, to character, or to property, knowing the property to belong to another;

2. In an action for a fine or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such or by any other person in a fiduciary capacity; or for misconduct or neglect in office or in a professional employment or for a wilful violation of duty; (Remainder same as Cal. C. C. P. § 479.)

d Kansas, § 5030. An order for the arrest of the defendant shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and showing one or more of the following particulars:

First. That the defendant has removed or begun to remove any of his property out of the jurisdiction of the court, with intent to defraud his creditors.

Second. That he has begun to convert his property or a part thereof into money, for the purpose of placing it beyond the reach of his creditors.

Third. That he has property or rights of action which he fraudulently conceals. Fourth. That he has assigned, removed or disposed of, or has begun to dispose of his property or a part thereof, with intent to defraud his creditors.

Fifth. That he fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. The affidavit shall also con tain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars. (Re-enacted Mch. 12, 1909, Laws 1909, p. 329, C. C. P. § 148.)

e Montana, § 6596, first sub. same as first sub. of Idaho § 4241, remainder same as subs. 2 to 5 inclusive of Cal. C. C. P. § 479.

f Nebraska. There is now no provisions for the arrest of a defendant in a civil action on mesne process; but § 7124 provides for the issuance of an execution against the person of the debtor upon a money judgment in certain cases.

g Nevada, § 3168, substantially same as Cal. C. C. P. § 479, except at the end of first sub. add "or when the action is for libel or slander." Also in the last clause of sub. three change the words "to prevent its being" to read "so that it cannot be" before the word "found."

h North Dakota, § 6890. The defendant may be arrested as hereinafter prescribed in the following cases:

1. In an action for the recovery of damages for any injury to person or character, or for injuring or for wrongfully taking, detaining or converting property.

2. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or other person in a fiduciary capacity, in the course of his employment as such.

3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed or disposed of, so that he [it] cannot be found or taken by the sheriff and with the intent that it should not be found or taken, or with intent to deprive the plaintiff of the benefit thereof.

4. When the defendant has been guilty of a fraud in contracting the debt, or in incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit.