through any negligence to a collision with another car, which had been approaching on the wrong side of the road, but which, simultaneously with plaintiff, swerved toward the other side when the collision occurred, the court maintaining that plaintiff was justified in taking the course which he did, which, at the most, was but a few seconds before what apparently would have been a head-on collision had he not changed his course.

And in Noyes v. Katsuno (1920) 111 Wash. 529, 191 Pac. 419, it was held .that defendant could not be heard to say that plaintiff was guilty of negligence in turning to the left side. of the street to avoid a head-on collision with defendant's car, where the wrongful act of defendant created the condition of apparent sudden peril under which plaintiff made the turn.

Vt.

In Lee v. Donnelly (1921) 113 Atl. 542, where plaintiff, in attempting to avoid colliding with defendant's automobile, which, without warning, was suddenly backed into the street, turned too far to the left and went over an embankment, it was held that the question whether his act in so turning to the left instead of attempting to pass to the right constituted negligence precluding recovery was one for the jury, since the prudence of his act, in view of the sudden emergency with which he was confronted, should not be measured by the rule which would be applied in case there was time for deliberation. The court said: "Beset as Peets was, the plaintiff's evidence tends to show, with a sudden and unexpected danger engaging and concentrating his whole attention at the time upon the manner of avoiding it, his conduct, in determining whether he acted as a careful and prudent man, should not be measured by the rule applied to a man under no excitement, with time to deliberate. In such circumstances as Peets was placed, he had no time to deliberate. He had to act instantly, and if he acted, in the light of all the surrounding circumstances, as a careful and prudent man would reasonably act under like circumstances,

he did all the law required of him. Whether he did this was a question for the jury."

In Hatch v. Daniels (1922) Vt.-, 117 Atl. 105, where defendant had wrongfully stopped his car in the dark and on the wrong side of the road, in holding that the plaintiff's action in attempting to stop instead of turning sharply to the left and passing" on that side, was a question of fact for the jury, he having had but one and one-quarter seconds in which to decide what to do, and the course which he took having been one of safety had not the grass under his right wheels been frosty and slippery, the court said: "When one is confronted with a sudden peril, as the plaintiff was, he is not held to the exercise of the same degree of care as when he had time for reflection. The law recognizes the fact that a prudent man, so brought face to face with an unexpected danger, may fail to use the best judgment; may omit some precaution he could have taken; may not choose the best available method of meeting the dangers of the situation. When one, without his own fault, but through the negligence of another, is so situated, he is not ordinarily, if ever, chargeable as matter of law with contributory negligence if, in attempting to escape the danger, he makes a mistake in the method adopted. The question is, What would or might a prudent man, in the same circumstances, do?"

In Henderson v. Dimond (1920) 43 R. I. 60, 110 Atl. 388, where plaintiff was forced off the road by defendant's reckless conduct, it was held that he could not be held guilty of contributory negligence as a matter of law because he did not stop before he struck a pole, the court having declared that, under the stress of the sudden emergency created by defendant's wrongful conduct, it did not necessarily constitute negligence on the plaintiff's part to attempt to get his automobile back into the road, rather than to attempt to stop suddenly in a wet ditch.

In Lebsack v. Moore (1918) 65 Colo. 315, 177 Pac. 137, in holding that the rider of a motorcycle, who, at the apex

of a hill, was forced instantly to decide whether he would attempt to drive between two approaching cars, one of which was traveling at a very high and unlawful speed, or to pass to the side of the rapidly moving car, could not be held guilty of contributory negligence because he made a possible error of judgment, the trial court correctly instructed the jury as follows: "A party, suddenly realizing that he is in danger from the negligence of another, is not to be charged with contributory negligence for every error of judgment, when practically instantaneous action is required; so, in this case, if you believe from the evidence that the emergency was not created by or contributed to by plaintiff's own negligence, and that the plaintiff, just before he was struck by the defendant's automobile, might have acted differently and escaped the injury, if you also believe that the plaintiff was using ordinary care in seeking to avoid a collision, and while so doing he was struck by defendant's automobile, then it is your duty to find for the plaintiff in such amount as may be justified by the evidence."

In McGinitie v. Goudreau (1921) 17 Alberta L. R. 100, 3 West. Week. Rep. 250, 59 D. L. R. 552, in holding that where an interval of time sufficient to have enabled the plaintiff to return to the road, after defendant had forced him therefrom, followed his leaving the same, had he not lost his head, it was held that the emergency rule did not excuse the accident. The court said that "the excitement of the plaintiff" was not sufficient to excuse him, "for it surely must be assumed that in driving a dangerous engine such as a motor car one must expect emergencies, and a few surprises, and excitement, and be prepared for them, and losing one's head must be regarded as a weakness in plaintiff, and not chargeable to defendant," and that, since the plaintiff by the exercise of ordinary care and skill might have avoided the accident, the only conclusion in law is that the defendant is not liable.

And see McPhee v. Lavin (1920) 183 Cal. 264, 191 Pac. 23, and Kearney v. Castellotti (1921) 55 Cal. App. 541, 203 Pac. 1029, as set out supra, IV. G. J. C.

V.

previously made a loan of $2,500, secured by a mortgage upon the same property. In addition to the Rutledge mortgage, there were outstanding at the time general taxes for the last half of the year 1917 and all of the year 1918. In consummating the transaction, a deed was taken by Mrs. Seward from the Rutledges and a mortgage given by her to the Mortgage Bond Company of New York for the sum of $3,000; she instructing Fisken to apply the proceeds of the loan, $2,407.54, to the extinguishment of the Rutledge mortgage, and the balance of $592.46 upon the purchase price to the Rutledges, the latter not to be paid until Fisken was satisfied that the taxes had been paid. One Mark Munson acted for the Rutledges in the transaction. Fisken paid the Rutledge mortgage as instructed, and when Munson exhibited to him a receipt from the county treasurer showing that the taxes had been paid, the $592.46 was paid over to him. Munson had given his check to the county treasurer in payment of the taxes at the time the receipt was issued. When the check was presented, payment was refused for want of sufficient funds. At the time the check was accepted by the county treasurer, he made a notation upon the tax rolls that the taxes had been paid, and this notation remained. thereon for a period of approximately thirty days, when it was canceled. Thereafter, Mrs. Seward brought this action against Fisken to recover the amount of these taxes, and, as above stated, when he answered and filed a cross complaint, the cause was resolved in effect to one by Mrs. Seward and Fisken against the county and its treasurer, seeking to restrain them from asserting that the taxes had not been paid and quieting the title of Mrs. Seward to the property above described as though the taxes had in fact been paid.

A few preliminary statements will tend to simplify the discussion upon the controlling question in the case. It must be remembered that

this is not a controversy as to the person paying the taxes to the county, but is one as to an innocent third person, Mrs. Seward, who purchased the property and paid over a portion of the purchase price sufficient to pay the tax, in reliance upon a receipt exhibited to her agent, which had been issued by the county treasurer, showing that the taxes had been paid. The act of the county treasurer in issuing the receipt was not one where power was entirely lacking, but was the exercise of an existing power in a defective or irregular manner. Under this statute, Rem. Code, § 9221, the county treasurer, upon the payment of any tax, is required to give a receipt therefor and enter the same upon the tax roll. The general rule is that a check given in payment of taxes does not operate to discharge by check-effect. the tax unless the check be in fact paid. The county, acting through its treasurer in collecting taxes, acts in a governmental, and ing taxesnot in a proprietary, capacity of capacity. The question, then, is reduced to this: Will the county be estopped from asserting that a tax has been paid as against a complaining party who has purchased the property covered by the tax and paid over the purchase money, or a portion of it, to the seller in reliance upon a receipt exhibited, signed by the county treasurer, showing that the taxes have been paid?

Tax-payment

County-collect-,

action.

Upon this question there is a dearth of authority. So far as we are advised, it has been before the courts upon only two or three occasions, and is little discussed by the text-writers. In Curnen v. New York, 79 N. Y. 511, the action was to compel the defendant to discharge a lot in the city of New York belonging to the plaintiff from the lien of certain assessments. It appeared that, before the plaintiff paid the purchase price, she ascertained at the proper office from the official records that the assessments had

been paid. Plaintiff thereupon, after deducting certain assessments which appeared as paid upon the records, paid the balance of the purchase price for the property. The assessments were in fact paid at the time stated by a person not owning the property, through a mistake. This party, after discovering his mistake, brought an action and recovered the amount of money thus paid. The plaintiff, or the purchaser of the property, who had relied upon the records, was not a party to that action. After the person paying the taxes had prevailed in the action brought by him, the entry of payment was canceled. Thereafter, the plaintiff, who was the purchaser, brought action to restrain the defendant from asserting as against her that the taxes had not been paid; and it was there held that she was entitled to the relief sought, since being a bona fide purchaser of the property, and, in making the purchase, relying upon the records showing that the assessments had been paid, the defendant would be estopped from asserting that they had not been paid. It was there said: "The record is for the public; with the book no one but its owner has concern, and of itself, it avails nothing; there is, therefore, no analogy in the modes of treatment to which they may be subjected. The assessment roll is akin to a judgment; both records, and each creating a lien to be enforced by subsequent proceedings, if the debt or duty is not otherwise discharged. New York v. Colgate, 12 N. Y. 140. If the latter is erroneously discharged, its lien cannot be restored. so as to affect bona fide purchasers, or others standing in a similar relation, whose transactions were entered into in ignorance of the error, and in reliance upon the truth of the record. King v. Harris, 34 N. Y. 330. The same rule applies here. There can be no doubt that the plaintiff was led by the entry upon the roll to believe that the assessments had been paid, and, if they

are enforced now, it will be to her prejudice."

A

It is sought to distinguish that case, because there the taxes were paid, not by check, but in money. This is true, but the money was paid over under a mistake of fact. third person who innocently deals with the property is in exactly the same position whether the taxes or assessments in question have been paid by money or by the giving of a check, when in one case the money is paid under a mistake of fact, and in the other the check is returned not paid. The record in both cases showing that the taxes had been paid, the effect is the same. But even if there is the distinction between that case and this which is sought to be made, Estoppel-to the argument and question paydiscussion in that

ment of tax.

case and the holding sustain the position that the doctrine of estoppel will apply. pel will apply. In the later case of O'Leary v. Board of Education, 93 N. Y. 1, 45 Am. Rep. 156, it was said: "A fact once admitted by a corporation through its officer duly and properly acting within the scope of his authority is evidence against it, and cannot be withdrawn to the prejudice of anyone who in reliance upon it has changed his situation in respect to the matter affected thereby. In such a case the doctrine of estoppel applies to a corporation as well as to an individual,"-citing the Curnen Case.

In the case of Kuhl v. Jersey City, purchased certain land, and at the 23 N. J. Eq. 84, the plaintiff had time of the purchase had procured a certificate from the city tax collector showing the amount of the taxes and assessments in arrear against the property. On the day when the deed was delivered and the consideration paid, the seller of the property went to the office of the city collector of taxes and paid the same by giving a check, which the collector received and thereupon receipted the tax bills. The tax receipts were presented to the plaintiff, the purchaser of the property, and in re