hospital, but remained of clear mind, and was visited by members of her family during the notice period, it was held that there was no mental or physical incapacity within the meaning of the statute, which would excuse failure to give the required notice. Likewise, in Saunders v. Boston (1897) 167 Mass. 595, 46 N. E. 98, 1 Am. Neg. Rep. 448, it was held that there was insufficient evidence to show inability to give notice, where the injury was a severe sprain of the ankle, causing severe pain, and making it impossible for the plaintiff to step on the foot for two or three weeks, but she was able to tell her husband of the injury on the same day, and her physician on his first visit, and she sent to a lawyer within a week or ten days after the accident.

And infancy is not an excuse under the Massachusetts statute which applies to "any person" injured, and permits notice to be given by parents, guardian, or any other person. Madden v. Springfield (1881) 131 Mass. 441. On the other hand, some Massachusetts cases have involved facts which have been held sufficient to excuse a failure to give notice within the statutory period. Thus, in Barclay v. Boston (1897) 167 Mass. 596, 46 N. E. 113, 1 Am. Neg. Rep. 449, on subsequent appeal in (1899) 173 Mass. 310, 53 N. E. 822, it was held that incapacity, within the meaning of the Massachusetts statute, might fairly be inferred, where deceased fell, injuring her hip and her head, and was taken to a hospital, and her relatives were unable to locate her for ten days, and no reason appeared for her failing to communicate with them if she had been able, and it was shown that she became delirious within ten days after the injury, and remained delirious and unable to transact business until her death. And in Stoliker v. Boston (1910) 204 Mass. 522, 90 N. E. 927, it was held that incapacity to give notice was sufficiently shown by evidence that plaintiff, apparently an adult, immediately became unconscious, and ever since had been of unsound mind and without any recollection of the accident; and it was further held in

this case that plaintiff's rights were not affected by inaction on the part of his father, or other relatives or friends other than a guardian.

Nebraska also has a statute (Comp. Stat. 1922, § 4384) providing that if the person injured be deprived, by reason of the injury, of the physical or mental capacity to give the notice within thirty days, the time of giving such notice shall be extended for the period of ten days after the incapacity is removed. Construing and applying this statute in Harris v. Genoa (1923)

Neb., 195 N. W. 953, it was held that where a person injured on the street, and seeking to recover damages from a city, was mentally and physically able to direct or procure the giving of the notice required by the statute for at least two weeks of the thirty-day period, the fact that she became incapacitated to do so upon the twenty-seventh day after the accident did not excuse her failure to give notice within thirty days.

In Hall v. Spokane (1914) 79 Wash. 303, 140 Pac. 348, construing a charter provision that claims must be presented "within thirty days after the injury or damage," except that, "if the claimant is physically or mentally unable to present such claim within the time aforesaid, it may be presented and filed by someone in his behalf," it has been held that the fact that an injured person was confined to her home and unable to attend to any business on the last day, but not so incapacitated during the first twentynine days, did not authorize a filing of the claim by another on the thirtieth day, on the theory that she was "physically or mentally unable" to present her claim in person within the thirty-day period, as required by the defendant's charter.

And in Haynes v. Seattle (1915) 87 Wash. 375, 151 Pac. 789, 10 N. C. C. A. 461, on rehearing of (1914) 83 Wash. 51, 145 Pac. 73, 10 N. C. C. A. 450, it was held that the enactment of a statute providing that if a claimant shall be incapacitated from verifying and filing his claim within the time prescribed by a municipal charter, it may be filed by another on his behalf, oper

ated to save the rights of one against whom a judgment had gone for lack of proper notice, which judgment, at the time of the enactment of the statute, had not become final because of the pendency of an appeal therefrom.

c. "Bereft of reason."

In Ray v. St. Paul (1890) 44 Minn. 340, 46 N. W. 675, construing and applying a statute which required notice within thirty days unless the injured party was "bereft of reason," it was held that the fact that the plaintiff's leg was broken by a compound fracture, causing much suffering, to relieve which opiates were administered as needed for more than thirty days, but that his mind was not affected except by the pain, and he did not suffer from delirium, was insufficient to show that plaintiff was "bereft of reason," or mentally incapacitated from attending to business, so as to exempt him from giving the notice.

In Gonyeau v. Milton (1876) 48 Vt. 172, construing a statute which expressly provided that if an injured person is thereby "bereft of his reason" he is excused from giving the statutory notice, it was held that if a person injured loses consciousness temporarily, and then recovers his consciousness and continues so for one week, he will not be excused; but that if, after the primary effects of the injury have passed, the mind cannot perform its functions, not because of mere pain or sickness, but because its functions are disordered, deranged, or abated so that he cannot transact such business as pertains to the giving of notice, he is "bereft of his reason," so as to be excused from giving any notice, though this condition does not continue for the full time within which notice could be given. In so holding the court pointed out that the statute does not relieve the party from performing his duty so long as the incapacity continues, but that it absolutely relieves him from giving the notice if, in fact, he is "bereft of his reason."

And that a person injured is "bereft of his reason" where he dies within half an hour after the injury, see

Eames v. Brattleboro (1882) 54 Vt. 471.

And see Harris v. Fond du Lac (1899) 104 Wis. 44, 80 N. W. 66, wherein a charter provision that, where the person injured shall in consequence of the injury be "bereft of reason, the notice shall not be required until thirty days after he has been fully restored to consciousness," was held applicable and given effect so as to render a notice sufficient.

d. Where "unavoidably prevented." In New Hampshire, by virtue of express statutory provision, a traveler receiving an injury from a defect in a highway, and unavoidably prevented by accident, mistake, or misfortune, and not from his own fault, from filing his claim for damages within ten days, may apply to the court within six months, and if the court is of the opinion that manifest injustice would otherwise be done, it may allow his claim to be filed. Under this statute it has been held that one seriously injured and unavoidably prevented from filing the notice within ten days may, on petition, be granted leave to file claim where justice manifestly requires that he should have an opportunity to prosecute it. Gitchell v. Andover (1879) 59 N. H. 363. Also,

where ignorance of the law, without any neglect or fault on the plaintiff's part, causes the delay, and manifest injustice would otherwise be done. Bolles v. Dalton (1879) 59 N. H. 479; Boyd v. Derry (1895) 68 N. H. 272, 38 Atl. 1005.

Whether the plaintiff was unavoidably prevented by accident, mistake, or misfortune from filing his claim in ten days, or whether his omission was caused by his own fault, was held in Page v. Campton (1884) 63 N. H. 197, to be a question of fact for the determination of the trial court.

And where it is conceded that the injured person was unavoidably prevented from filing the statement required by the statute within ten days after the injury, it has been held that "manifest injustice" may be found from the fact that sufficient evidence is presented upon which a verdict

might properly be found in his favor. Chadbourne v. Exeter (1892) 67 N. H. 190, 29 Atl. 408. Otherwise, if the allegations of the petition fail to state a cause of action. Owen v. Derry (1902) 71 N. H. 405, 52 Atl. 926; Knight v. Haverhill (1915) 77 N. H. 487, 93 Atl. 663.

And see Welsh v. Franklin (1900) 70 N. H. 491, 48 Atl. 1102.

e. "Reasonable excuse" not prejudicing defense.

In the province of Ontario the statutes require notice within seven days, but contain the saving provision that, except in certain specified cases, failure to give the notice within such period shall not be a bar to the action, if the court is of the opinion that there is "reasonable excuse" for the want or insufficiency of the notice, and that the corporation was not thereby prejudiced in its defense. This statute does not define the term "reasonable excuse," in consequence of which it has been said that "what may constitute reasonable excuse for not giving notice must depend very much upon the circumstances of the particular O'Connor v. Hamilton (1905) 10 Ont. L. Rep. 529, quoted with approval in Egan v. Saltfleet Twp. (1913) 29 Ont. L. Rep. 116, 4 Ont. Week. N. 1384, 13 D. L. R. 884. number of cases have passed upon the question.

case."

A

Thus, in Morrison v. Toronto (1906) 12 Ont. L. Rep. 333, where plaintiff was so disabled as to make him incapable of giving notice on his own initiative, spontaneously and unaided by any direction or instruction as to notice, and was physically unable to serve such notice, it was held that he was excused.

On the other hand, in Anderson v. Toronto (1908) 15 Ont. L. Rep. 643, where the plaintiff sprained his foot, it was said that, while no doubt the injury occasioned great bodily suffering, "there is nothing to show that the patient was so affected and prostrated that he was physically or mentally in

capacitated from giving the notice, or directing that it should be given."

And in Egan v. Saltfleet Twp. (Ont.) supra, where plaintiff riding on a wagon was thrown "forward and straddle the tongue," and was "confined to bed for two weeks and suffered so much that he could not sleep day or night," it was held that there was nothing in the physical condition of the plaintiff which would excuse a delay in giving the statutory notice, and that ignorance of the law is not an

excuse.

And in Fuller v. Niagara Falls (1920) 48 Ont. L. Rep. 332, where plaintiff fell on a defective sidewalk and was seriously injured, so as to cause severe pain and incapacitate her for household duties, and did not know that it was necessary to give notice, the court, aplying the rule that failure to give notice is not excused where the failure is due to the fact that the injured person hopes that his condition will alter for the better, so that it will be unnecessary ever to give notice, but that if the failure is due to the supposition that if things continue as they are it will not be necessary to give notice, there is reasonable excuse -held that plaintiff had not excused her failure.

In O'Connor v. Hamilton (1904) 8 Ont. L. Rep. 391, it was held that there was a reasonable excuse for failure to give the notice within seven dayз, where plaintiff was taken immediately to a hospital, where he was confined for more than the statutory period, his only arm was broken, his hip and leg bruised, and his shoulder swollen, and his arm was set twice within a few days; but on appeal, in (1905) 10 Ont. L. Rep. 529, the judgment was reversed on the ground that plaintiff was under no disability except ignorance of the law, which would not excuse the omission, although the court did say that the fact of the accident by itself is not a reasonable excuse, "if it is not accompanied by some disabling circumstance, mental or physical."

G. J. C.

A plea of liability to comply with the decree will not be sustained where the defendant actually had the means, but wilfully and intentionally used them for other purposes.

1 R. C. L. Alimony, art. 105; Staples v. Staples, 87 Wis. 592, 24 L.R.A. 433, 58 N. W. 1036.

Malone, Special Judge, delivered the opinion of the court:

This is an appeal from a contempt proceeding to enforce the payment of alimony.

This case was heard by this court on another phase of the litigation at a previous term, and the opinion of the court, delivered at the April term, 1921, is reported in 144 Tenn. 303, 232 S. W. 443.

As appears from the statement of facts made in that case, the complainant, Mrs. Birdie M. Going, on June 24, 1919, filed her original bill against her husband, L. C. Going, in the chancery court of Shelby county, seeking a divorce from him on the grounds of adultery and of abandonment and failure to provide. No defense was made to this bill, and an order pro confesso was taken against the husband. The case was finally heard on July 11, 1919, at which time the chancellor decreed an absolute divorce to the wife, allowing custody of their two minor children, a boy aged seventeen years, and a girl aged fourteen years, and, after reciting "that the defendant is a man of learning and ability, with large earning capacity, and the petitioner is practically without means, and is now working to [support] herself and family," further decreed "that the defendant, L. C. Going, as permanent alimony, pay to the petitioner, Mrs. Birdie M. Go-. ing, the sum of $4,000 cash, which has this day been done, and the receipt of which is acknowledged, and that the said L. C. Going pay into the hands of the clerk and master of this court on July 1, 1920, the sum of $1,800 for the support and maintenance of the petitioner, Mrs. Birdie M. Going, and that the said L. C. Going also pay into the hands of the clerk and master of this court,

for the petitioner, the sum of $150 per month, beginning August 1, 1920, and on the 1st of every month thereafter during the lifetime of the petitioner."

Thereafter, on the 30th day of July, 1920 (erroneously said to be on the 24th day of June, 1919, in the reported case, 144 Tenn. 304, 232 S. W. 443), L. C. Going filed a petition, seeking by said petition to have the decree rendered July 11, 1919, vacated or modified on the ground that there had been a change in the status of the parties since the rendition of said decree, warranting such action. In this petition it was alleged that one of the children had married; that the family expenses had been greatly reduced; that the wife had come into the possession of certain property from her deceased father's and brother's estates, which, together with certain property given to her by the petitioner prior to the granting of the divorce, and the permanent alimony decreed to her by the court in the divorce proceeding, was sufficient for her support. The petitioner prayed to be relieved from paying any other or further sums to the complainant under said decree, or that said decree at least be modified so as to relieve petitioner from a portion of the payments thereby required.

On August 17, 1920, Mrs. Going answered the petition of her former husband, showing the property which had come into her possession from the estates of her father and brother since the divorce was granted, as well as the property received from the petitioner prior to granting the divorce, and denying that the income from said property, including payments to be made by petitioner under the decree, was more than sufficient to support herself and her unmarried daughter, then fifteen years of age, and living with her mother in the city of Memphis.

On November 23, 1920, before the petition of Mr. Going had been acted upon, Mrs. Going filed her petition in the case, alleging that the