2423. "It is not usual for a court to point out a particular witness, and tell the jury to disregard his testimony, if they think he has testified falsely in any material particular; and, when this is done, and all instruc tions upon the defense which this witness' testimony tends to establish are refused, the jury must under. stand the court to be of opinion that no case of selfdefense is made out,-in other words, that the testimony of the suspected witness is entirely unworthy of credit. This conclusion may be correct, but it is the province of the jury, and not of the court, to pass upon the credibility of witnesses." State v. Stout, 31 Mo. 406. "It is improper for the court to instruct the jury as to the weight they should give to particular testimony, or to the testimony of a particular witness, or to put a particular witness into undue prominence by charging the jury to find according to their belief in his evidence, if such charge tends to ignore other testimony-citing Chase v. Iron Works, 55 Mich. 139, 20 N. W. Rep. 827; Springett v. Colerick, 67 Mich. 362, 33 N. W. Rep. 683. On the other hand, a trial judge has no right so to instruct the jury as manifestly to reflect upon a particular witness-citing Railroad Co. v. Martin, 41 Mich. 667, 672, 3 N. W. Rep. 173, 175; Wheeler v. Wallace, 53 Mich. 355, 19 N. W. Rep. 33, 37." "An instruction that, if the jury find that any witness has testified falsely as to any material fact in the case, they are at liberty to reject and disbelieve all of his testimony, clearly and sufficiently states the law on the subject; and it is not error for the court to refuse to give a request apply. ing such rule to a particular witness, and challenging the attention of the jury to particular portions of his testimony which the request assumes as false." Fraser v. Haggerty, 86 Mich. 521, 49 N. W. Rep. 616. "It is not proper for the court, in a criminal case, to designate the evidence of a witness who is not an acknowledged accomplice, and caution the jury against giving credence to it. Casting the influence of the court against the testimony of a particular witness, or the character of the evidence he gives, is not the usual way of either affecting the credibility of witnesses or the weight of testimony." Rafferty v. People, 72 Ill. 37. In the case of State v. Kellerman, 14 Kan. 135, it was said: "Where an instruction is asked, that if a particular witness, naming him, has willfully testified falsely, etc., the justice should disregard his entire testimony, it is not error for the court to refuse such instruction, and substitute one that, if any witness has willfully testified falsely, etc." And it was further observed, on the same subject: "With reference to the first, we have little difficulty. The rulings of the court were unquestionably correct. For instance, the appellant asked the court to instruct the jury that, if one witness, naming him, testified willfully, falsely, etc., they must disregard his entire testimony. Instead of this, the court charged that if any witness testified willfully, falsely, etc. The latter is the proper way. To single out a witness, and by name give such an instruction in reference to him, suggests a suspicion, if it does not imply a belief, on the part of the court, of the witness' perjury." See, also, Cline v. Lindsey (Ind. Sup.), 11 N. E. Rep. 441. It is error to single out and instruct upon the evidence of a particular witness. Muely v. State (Tex. App.), 19 8. W. Rep. 915. In the opinion in Housh v. State, 43 Neb. 163, 61 N. W. Rep. 573, in considering An objection alleged against an instruction, it was stated by Post, J.: "Exception was taken to the following paragraph of the instructions: 'Under the law of this State, the accused is a competent witness in his own behalf, and you are bound to consider his

testimony; but, in determining what weight to give to his testimony, you may weigh it as you would the testimony of any other witness, and you may take into consideration his interest in the result of the trial, his manner, and the probability or improbability of his testimony, and giving to his testimony such weight as, under all the circumstances, you think it entitled to.' Were the question an open one at this time, the writer would with reluctance sanction a practice which permits any reference by the court to the subject of the prisoner's credibility as a witness. There is, on principle, no more reason to call the attention of the jury to him, and to caution them to consider his interest as affecting his credibility, than for like caution with respect to any other witness; but that question has been fully settled in this court by decisions in conformity with the prac tice in this case, which we are constrained to follow. See St. Louis v. State, 8 Neb. 405; Murphy v. State, 15 Neb. 383, 19 N. W. Rep. 489." In the opinion in the case of Watson v. Roode, 30 Neb. 264, 46 N. W. Rep. 493, one of the matters under consideration was the refusal of the trial court to give an instruction to the jury worded as follows: "The court instructs the jury that, if they believe, from the evidence, that the plaintiff, Orange A. Roode, is a person of bad reputation for truth and veracity in the neighborhood where he resides, then, as a matter of law, this fact tends to discredit his testimony, and the jury may entirely disregard it,except in so far as he is corroborated by other credible testimony, or by facts and circumstances proved on the trial." And of this action it was said: "The defendant introduced several witnesses, who testified that the plaintiff's reputation for truth and veracity in the neighborhood where he lived was bad. In view of this testimony, the jury should have been told what weight should be given to the plaintiff's testimony. The request contained a correct statement of law, and, as it was not covered by the instructions given, it was error to refuse it." And in the syllabus of the opinion it was stated: "When the general reputation of a witness for truth and veracity in the neighborhood where he resides is proven bad, the jury may entirely disregard the testimony of such witness, except in so far as he is corroborated by other creditable testimony."

Of the questions presented in the last mentioned case it may be said that, in an effort to impeach a witness on the ground that his reputation for truth and veracity is bad, the witness is necessarily, as a part of the attempted impeachment, singled out by name in the questions propounded, and the evidence directed specifically against him and his reputation for speaking the truth. Hence, there is no impropriety in the trial court reading, as a portion of a charge to the jury, an instruction in which the witness sought to be impeached is named, and the jury told to apply the proper tests and rules. In the application of the rule invoked in the case at bar, that of "Falsus in uno, falsus in omnibus," the question of whether any one of the witnesses has willfully given false testimony on any material point, and, if so, which of the witnesses has so testified, must be determined from a view and comparison of all the evidence adducedwhich witness or set of witnesses, if any, has so sworn falsely, being as much a fact to be determined as any other portion of the inquiry; and its settlement, as in all points of fact, is one peculiarly and exclusively within the province of the jury. Believing, as we do, that to single out a witness or witnesses by name, and instruct the jury with regard to him or them, and the weight or credibility to be accorded his or their test

mony, is subject to the infirmity that it may mislead the jury, or some members thereof, to believe that the presiding judge doubts the integrity and truthfullness of such witnesses or witness, and discredit be thus cast upon testimony, when the entire question should have been solved by the jury, and, moreover, that all difficulty may in all cases be avoided, and the purpose sought be subserved, and effectually and properly attained, by giving a general instruction on the subject, applicable to any and all witnesses, we do not think it wise or best to extend the approval of this court to a doctrine or rule under which trial courts may designate witnesses by name in instructions upon the weight and credibility which may be given the testimony, beyond what has already been announced on the subject. Hence we must disapprove the instruction given in the case at bar as im. proper and erroneous. The judgment and sentence of the district court will be reversed, and the case remanded.

SCOPE OF A LIS PENDENS.

The doctrine of lis pendens is found clearly announced in the ordinances of Lord Bacon.1 It is chrystallized in the maxim pendente lite nihil innovetur. This doctrine is, that no one can acquire an interest in the subject-matter of a suit during the pendency thereof from any of the defendants therein to the prejudice of the plaintiff; otherwise, by transfer of interest, it might be necessary to bring in new parties, and lawsuits could thereby be rendered interminable.2 Formerly, in England, when the subpoena was served prior to the filing of the bill of complaint, the lis pendens began from the filing of the bill, and reverted to the service of the summons. Now, however, the lien begins upon the service of the subpoena or summons after the bill has been filed.4 Such summons may be served in the manner prescribed by statute, by personal service, by leaving it at the home of the defendant, or by publication when allowed. When by statute a suit is declared to be instituted by the filing of the bill and the issuance of a summons, the lien attaches prior to

3

1 Murray v. Ballou, 1 Johns. Ch. 566.

2 Hailey v. Ano, 136 N. Y. 569; Wortham v. Boyd, 66 Tex. 401; Randall v. Lower, 98 Ind. 255; Union T. Co. v. Southern, etc. Co., 130 U. S. 565; Bellamy v. Sabine, 1 De G. & J. 566; Hayden v. Bucklin, 9 Paige, 512.

3 Burleson v. McDermott, 57 Ark. 229; Lincoln & Co. v. Rundle, 34 Neb. 559.

4 Allison v. Drake, 145 Ill. 500; Franklin S. Bank v. Taylor, 131 Ill. 376; Norris v. Ile, 52 Ill. 190; Murray v. Ballou, 1 Johns. Ch. 566; Diamond v. Lawrence Co., 37 Pa. St. 353; Walker v. Goldsmith, 14 Oreg. 125; Skeel v. Spraker, 8 Paige, 182.

5 Hayden v. Bucklin, 9 Paige, 512.

the service of the summons. It is considered to be a hard rule and is not favored by the courts, and, if a party makes a slip in his proceedings, it is said the courts will not assist him in rectifying his mistake."

Essentials in Creating the Lien.-The bill must be filed in good faith and not be collusive. So if the bill be given to the clerk to indorse, and be then taken away by the party, it is not considered to be so filed as to create a lis pendens. The property must be well described in the pleadings, since the lis pendens only extends to what is claimed in the pleadings, and relates to property so described that any one can identify it by such description.10 The law imports notice of such facts as are alleged in the petition, which are pertinent to the issue, and of the contents of exhibits. Such description need not be a particular one, when sufficient description is given to enable the parties to understand what property is sought to be charged by the suit; as where all the land belonging to a party at his decease is sought to be charged." The property described must be such as can be affected by a lis pendens, and the court must have jurisdiction over the person and the property. If the pleadings are amended and all the material grounds for relief were stated in the original petition, the lis pendens dates from the original filing; if the amendment inserts a new equity, or new claim, or a different or distinct ground of relief, then as to such new matter the lis pendens begins from the filing of the amendment. The notice only extends to those who obtain title after the institution of the suit from one of the defendants in such suit. 15 Where the com

18

9 Wilkinson v. Elliott, 43 Kan. 590.

10 Oliphant v. Burns, 146 N. Y. 218; Miller v. Sheny, 69 U. S. 237; Leuders v. Thomas, 35 Fla. 518.

11 Walker v. Goldsmith, 14 Oreg. 125; Puckett v. v. Benjamin, 21 Oreg. 370; Norris v. Ile, 152 Ill. 190; Rothschild v. Kohn, 93 Ky. 107.

12 Arrington v. Arrington, 114 N. C. 151. 13 Norris v. Ile, 152 Ill. 190.

14 Norris v. Ile, supra.

15 Miller v. Sheny, 2 Wall. 237; Terrell v. Allison, 88 U. S. 289; Travis v. Supply Co., 42 Kan.625.

is not affected by the judgment finally rendered. An innocent purchaser from the de

erty, which is the subject of the suit, is not charged with notice of the interest of another defendant in the same property, though it appeared on the face of the pleadings to which it was not necessary for any of the purposes of the suit to give effect.17 The law of hs pendens does not prevent a defendant from purchasing from a person, not party to the suit, a title superior to complainant's title and setting it up to defeat his title.18 It was held that a suit in partition was a notice as to the complete title, as its object was to determine the rights of all parties interested therein, and though new parties were subsequently introduced, yet all purchasers pendente lite from any of the interested parties took subject to the final judgment. 19 A lis pendens is unnecessary as against those who buy with knowledge of the adverse rights of others, and their purchases are subject to such right, and if suit be pending subject to its results, though the law of lis pendens may be inapplicable.20

How the Lis Pendens may be Vitiated. To maintain the lis pendens, the bill must be followed by a decree; and it falls, if the bill is voluntarily abandoned or dismissed by the complainant." The bill must also be duly prosecuted, but mere lapse of time would not be considered to vitiate the lis pendens, unless it was such as to induce the belief that the prosecution had been abandoned.23 The lis pendens is lost by a dismissal of the suit. A writ of error is regarded as a new suit, and a purchase without notice, after the termination of a suit and before a writ of error is sued out, will be protected.25 So a bill of review, taken after the time usually allowed, was considered not to operate as a lis pendens; but whether an innocent purchaser, after 16 McCutchen v. Miller, 31 Miss. 65. Bellamy v. Sabine, 1 De G. & J. 566. 18 Douglas v. Davies, 23 Ill. App. 618. 19 McCloskey v. Barr, 48 Fed. Rep. 130.

Manaudas v. Mann, 25 Oreg. 597; Pacific M. Co. v. Brown, 8 Wash. 347; Scotland Co. v. Hill, 112 U. S.

183.

be a controverted question. 26 In a case where a party purchased after the time for appealing has passed, he was considered to have bought subject to the suit, the decree being set aside as being unwarranted. The court stated that a purchaser must ascertain at his peril whether the decree is warranted." The dissolution of a temporary injunction while the suit still goes on does not affect a lis pendens. 28

Enforcing a Lis Pendens.-It is said that a successful claimant can enforce his judgment by ignoring the rights or claims of a purchaser pendente lite, and acting as though he had never interfered with the property.29 It may, however, sometimes be necessary to obtain a writ of assistance;30 and in case the purchaser has obtained the legal title, a bill in equity may be required.31

Lis Pendens as to Real Estate.-The rule of lis pendens is always applicable in suits affecting the title to real estate. 32 Divorce suits have been filed, claiming alimony in property specially described in the suit. Some courts hold, that lis pendens apply to such suits;33 others disallow such application, alleging that the claim for alimony does not apply to any specified part of the husband's estate, nor does such claim become a lien till it is allowed by the decree.34 One who attaches real estate is not regarded as an innocent purchaser, and is bound by a suit concerning the title to said land against his debtor, wherein the summons was served before he obtained a judgment in his attachment suit.8 One who took a mortgage on real estate, while a suit to foreclose the vendor's lien was pending, was held to be a

35

26 Rector v. Fitzgerald, 59 Fed. Rep. 808.

27 Ritson v. Dodge, 33 Mich. 463; Cook v. French, 96 Mich. 525.

28 Hixon v. Oneida Co., 82 Wis. 515.

29 Norris v. Ile, 152 Ill. 190; Skeel v. Spraker, 8 Paige, 182.

30 Terrell v. Allison, 88 U. S. 289.

31 Powell v. Campbell, 20 Nev. 232.

32 Faulkner v. Vickers, 94 Ga. 531; Dodd v. Lee, 57 Mo. App. 167; Lacassagne v. Chapuis, 144 U. S. 119; McCutchen v. Miller, 31 Miss. 65.

33 Powell v. Campbell, 20 Nev. 232; Wilkinson v. Elliott, 43 Kans. 590.

34 Scott v. Rogers, 77 Iowa, 483; Houston v. Timmerman, 17 Oreg. 499.

35 Cotton v. Dacey, 61 Fed. Rep. 481; Puckett v. Benjamin, 21 Oreg. 370.

36

purchaser pendente lite, though the vendor's deed stated that the consideration had been fully paid. One who fails to record his deed to real estate till a suit affecting his grantor's title thereto has been commenced, is bound, as though he were a purchaser lite pendente by the judgment rendered therein,87 even though the plaintiff had knowledge of the existence of his deed.38 The last decision is due to the provisions of a statute, declaring that by reason of such subsequent registration the grantee in such deed shall be deemed a subsequent purchaser or incumbrancer. A purchaser of real estate during the pendency of a bill to foreclose a mortgage thereon is not affected by the doctrine of lis pendens, if such mortgage was not then of record in the register's office, because by statute a purchaser has a right to presume there is no incumbrance upon an estate if none is shown in the register's office.39 A bona fide purchaser of real estate without notice pendente lite is liable for the property itself, but not personally, nor for the rents and profits.40

41

Lis Pendens as to Personal Property.There is great diversity in the rulings of the courts as to the application of lis pendens to suits concerning personalty. It is said to apply to personal property, though that has been questioned where the property was movable. It has been applied to slaves, but under the laws of the southern States slaves were largely assimilated to real estate.48 It was realized that the universal application of the law of lis pendens would greatly hamper commercial transactions. As a result the law has been held inapplicable to money and bank notes,44 to commercial paper, though it is sometimes confined to commercial paper not yet due,46 to municipal

45

36 Owen v. Kilpatrick, 96 Ala. 421.

37 Williams v. Kerr, 113 N. C. 306.

38 Collingwood v. Brown, 106 N. C. 362.

39 McCutchen v. Miller, 31 Miss. 65.

40 Jacobs v. Smith, 89 Mo. 673.

41 Dodd v. Lee, 57 Mo. App. 167; McCutchen v. Miller, 31 Miss. 65; Contra: McClernand v. Phillips, 6 Colo. App. 47.

42 McLaurine v. Monroe. 30 Mo. 462.

43 Fletcher v. Ferrel, 9 Dana, 372; Bolling v. Carter, 9 Ala. 921.

44 Winston v. Westfeldt, 22 Ala. 760.

45 Carr v. Lewis C. Co., 15 Mo. App. 551; Union T. Co. v. Southern, etc. Co., 130 U. S. 565; Warren Co. v. Marcy, 97 U. S. 961; Winston v. Westfeldt, supra. 46 Diamond v. Lawrence Co., 37 Pa. St. 353; Stone

47

51

bonds, to corporate stock,48 to corporate bonds,19 and to articles of ordinary commerce.50 Though we derive the law of lis pendens from the English, yet it was claimed in the year 1894 that it had never been applied in England to goods, chattels or choses in action. Since the law of lis pendens does not apply, where there is no title to the property sued for nor a lien on it, there can be no lis pendens where the contention is a mere demand for money, or in an action of trespass.52 When personal property is already in the custody of the law, as when in replevin the defendant retains it under a redelivery bond, it is subject to the judgment finally rendered.

53

Statutory Provisions.—In many States this matter has been regulated by statute, which provide that there shall be no lis pendens till a notice of the suit, specifying the parties, the property affected and the relief sought, has been filed in the office of the recorder of deeds of the proper district. In such cases the delivery of the notice to the proper officer for record protects the complainant, though the officer fails to file it.55 A failure to deliver such a notice to the proper officer will not protect a purchaser, who had notice of the litigation. It is not necessary to file a notice of lis pendens in an action of ejectment, since in such action the plaintiff must recover on the legal title, and a lis pendens is only efficacious in protecting a purchaser without notice against equities.57 When State laws have been passed requiring such notices to be filed in the office of the recorder of deeds in suits affecting the title to real estate, it has been held that such legislation does not affect the law of lis pendens as ap

v. Elliott, 11 Ohio St. 252; Howe v. Hartness, 11 Ohio St. 449; Kellogg v. Fancher, 23 Wis. 1.

47 Union T. Co. v. Southern, etc. Co., 130 U. S. 565; Warren Co. v. Marcy, 97 U. S. 961; Contra: Diamond v. Lawrence Co., 37 Pa. St. 358.

48 Holbrook v. New Jersey, etc. Co., 48 N. Y. 616.

49 Farmers', etc. Co. v. Toledo, etc. R. R., 54 Fed. Rep. 759.

50 Carr v. Lewis C. Co., 15 Mo. App. 551; Union T. Co. v. Southern, etc. Co., 130 U. S. 565.

51 Wigram v. Buckley, 63 L. J. Ch. 689.

52 McCutchen v. Miller, 31 Miss. 65; Hailey v. Ano, 136 N. J. 569; Loudon v. Mullins, 52 Ill. App. 420: Crocker v. Lewis, 29 N. Y. Sup. 798.

53 Sherburne v. Strawn, 52 Kans. 39.
54 Smith v. Gale, 144 U. S. 509.
55 Heim v. Ellis, 49 Mich. 241.

56 Frank v. Jenkins, 11 Wash. 611.
57 Sheridan v. Andrews, 49 N. Y. 478.