Imagens das páginas


miralty; duty of managers of dredge to one which objection is made, as required by
on board.

294 rule of court, will waive the obejction.
Garrigue v. Keller (Ind.)


2. That there is evidence in the record
Condonation of, as Justification for
Filing Bill to Review Divorce De- sold for taxes in violation of his covenant

that a tenant permitted the premises to be
cree, see REVIEW, 3.

through mistake does not require a rever-

sal of a judgment dismissing his bill for
Right of Adverse Possessor to Main- equitable relief from a forfeiture claimed
tain Replevin for Timber Severed, on the ground, where there is no statement

of facts found, or of rulings made; since it
see REPLEVIN, 1, 2.

cannot be held to have been error to refuse
Actual possession by inclosure of a por- to give credence to such evidence. Gordon
tion of land claimed under a paper title v. Richardson (Mass.)

Araws to it constructive possession of all

3. Sundays cannot be excluded in com-
land within the boundaries called for by puting the time for signing of bills of ex-
the title papers. Wheeler v. Clark (Tenn.) ception under Code Pub. Loc. Laws, art. 4.


$ 170, allowing it to be done “at any time

within thirty days" after verdict or finding

of fact. American Tobacco Co. v. Strick
See also REPLEVIN.

ling (Md.)

Adverse possession; right of one holding
property by, to maintain replevin for things Assignments of error.


4. An assignment that the court erred

“in charging the jury as certified to in the

printed record,” without pointing out the
Forbidding Use of Land for Park for, error complained of, raises no question

as Taking for Public Use, see which the appellate court is bound to re-

view. Chase Waterbury Sav. Bank
Publishing Picture without Consent as (Conn.)


5. On appeal from an order overruling a
Publication of One's Picture in, as motion for new trial, appellant is entitled

Libel, see LIBEL AND SLANDER, 2. to have the assignment and specification of
Publication of Picture as Part of, as

errors contained in his statement used on
Violation of Right of Privacy, see the hearing of such motion examined and

considered by the appellate court, although

such order was not assigned as error on ap.

peal, since Id. Rev. Stat. 1887, § 4427, al-

lows an aggrieved party an exception, as a
Advertising; forbidding use of land near

matter of law, to an order denying his
park for.


motion for a new trial. Whitney v. Dewey


Effect of Failure to Indorse “Filed," 6. Where a motion for a new trial has

been made, and the statement used on such

motion contains an assignment and specifi-
Of Insurance Company,

cation of errors, and an appeal is taken

from the order denying the motion, and the
ANCE, 1-3.

original brief of appellant contains no

enumeration of errors relied on, but refers
Sufficiency of Service to Warrant Per to the transcript and discusses such errors.

sonal Judgment for, against De- and prior to the argument in the appellate
fendant, see WRIT AND PROCESS. court a supplemental brief is filed by appel-

lant, making a specific enumeration of such
Of Pleading; Error in Refusing to Per- errors, the same will be regarded as a sub-

stantial compliance with the rules of court
mit, see APPEAL AND ERROR, 10.
Of Affidavit, see APPEAL AND ERROR,

requiring an assignment of errors; and the

case will be examined on the merits. Id.

Necessity of exceptions.
Of Statute; Sufficiency of Caption, see

7. In the absence of exception to the con-

duct of the prosecuting attorney in reading

the verdict of a coroner's jury in propound-
Record in appellate court; generally. ing a question to a witness, the supreme

1. Failure set out instructions to court will not set aside a verdict of guilty






in a murder case merely because the coro- , Grounds for reversal generally.
ner's verdict stated that the homicide for 15. A judgment will not be reversed be-
which accused was on trial was unjustified. cause the sufficiency of an
State v. Coleman (Mo.)

381 tested by what was called a motion to
Questions reviewable.

strike, instead of by demurrer, although the
8. The exercise by the trial court of its practice is improper, where the motion has
discretion as to the setting aside of a ver- been treated by the parties as in effect a
dict as being contrary to the clear weight demurrer. Wisconsin Lumber Co.
of the evidence will not ordinarily be re- Greene & W. Teleph. Co. (Iowa) 968
viewed on appeal. Hancock v. Western U. 16. The admission of evidence of a con-
Teleg. Co. (N. C.)

403 versation between the maker and payee of a
9. The question of the invalidity of an

note as to the law by which it shall be gov-
information may be raised for the first erned, which took place in the absence of
time in the appellate court. State v. Cole- the surety, is not reversible error upon com-
man (Mo.)

381 plaint of the surety, where the conversa-
10. Refusal to grant leave to amend the tion merely corroborated the effect of the

no evi-
complaint so as to set up a new issue, after contract itself, and there
the introduction of the evidence, is not re-

dence to the contrary. Garrigue v. Keller

viewable on appeal. Allen v. North Des

Moines M. E. Church (Iowa)

255 17. The excusing of a competent juror on
11. Failure of the clerk to indorse the motion of the court itself is not ground of
word “Filed” upon an affidavit is a mere

error, if a fair and impartial jury was ob-
irregularity which may be amended at any

tained. Pittsburgh, C. C. & St. L. R. Co. v.
time before or during trial, and objection

Montgomery (Ind.)

to it cannot be made for the first time on 18. A verdict for damages will not be dis-
appeal. State v. Coleman (Mo.) 381 turbed on writ of error on the ground
Review of facts.

that they were excessive, when the trial
12. On an appeal to the Louisiana su-

court did not disturb it. Peirce v. Van

preme court solely under the grant of juris Dusen (C. C. App. 6th C.)
diction to that court over suits involving

19. Failure to credit overdue premium
the constitutionality or legality of a fine or

notes on a life insurance policy in entering
penalty imposed by a municipal corporation, judgment thereon, as provided in the con-
the question whether the facts were suf: tract, is cause for reversal. Union C. L.
ficient to justify the conviction of the ap-

Ins. Co. v. Spinks (Ky.)

pellant cannot be considered. Crowley v. Remarks or conduct of court or coun-
Ellsworth (La.)

276 sel.
13. A verdict in favor of plaintiff in an

See also supra, 2, 7.
action to recover for injury to a railroad 20. The jury in a murder case cannot in-
brakeman while coupling cars through the fer that a verdict was rendered by a coro-
alleged negligence of the engineer in fail- ner's jury, merely because the prosecuting
ing to stop his engine as soon as the cars attorney asked a witness whether or not he.
came together, and hold it stationary until

as a member of such jury, did not render
signaled to move it again, will not be dis- such verdict, which question the witness
turbed where the evidence is conflicting, but

was not permitted to answer, so as to make
plaintiff's evidence that the engine was not

the conduct of the prosecuting attorney

v. Coleman
stopped is corroborated by undisputed evi- ground for reversal. State
dence tending to show that fact. Schus v.


Powers-Simpson Co. (Minn.)

887 21. A remark by the trial judge to coun-
14. A finding that there is no such dis. sel in the presence of the jury in a criminal
parity or difference between signatures on case, indicating that in his opinion the
drafts presented to a savings bank and case is not one depending on circumstantial
that of the depositor on file as to create a evidence, and that he gives instructions on
doubt or misgiving concerning the genuine that subject only in deference to the opin-
ness of the signatures in the mind of a ion of the higher court, is reversible error.
competent and reasonably careful bank of- Beason v. State (Tex. Crim. App.) 193
ficer when presented by a person unknown 22. It is reversible error for the trial
to him, and that, therefore, the bank is judge to permit, without rebuke, the prose-
not guilty of negligence in failing to make cuting attorney to state to the jury, in a
a comparison, is a conclusion of law review- prosecution for burglary, that, if they do
able by the appellate court, and not a find- not convict, we might as well tear down
ing of fact. Kelley v. Buffalo Sav. Bank the court houses; that, if defendant is not
(N. Y.)

317 guilty, there are too many rourts for the

case to go through to permit his conviction; ARBITRATION.
that the state has proved that defendant

Of Insurance Loss, see INSURANCE, 7.
stole the property by his plea of guilty,
which the judge would not have entered if

it was not true; so that the case is one of

Evidence of Humiliation by, see Evi-
direct, and not circumstantial, evidence, al-

DENCE, 21.
though a 2x4 appellate court had held that

Right of Officer to Kill while Making,
it was the latter.



23. Charging the jury as to the effect of

verbal statements of accused, when there is

For Drainage Ditch, see DRAINS AND
no evidence that he made any, is not rever-

sible error, where the facts disclosed by the
record show that accused was not preju- ASSIGNMENT.
diced thereby. State v. Coleman (Mo.) The assignee of a chose in action takes

381 it subject to all the defenses which could
24. An instruction in an action for false have been set up against it in the hands
imprisonment permitting the damages to of the assignor at the time of the assign-
be fixed by what the average man would ment. Williams v. Neely (C. C. App. 8th
suffer under the circumstances is not re- C.)

versible error, where there is nothing to
show that plaintiff suffered less than would ASSIGNMENT OF ERROR.
the average man, although the measure of

damages should actually have been what

plaintiff suffered. Mumford v. Starmont


25. A manifest clerical mistake in copy-
ing an instruction is not prejudicial error. ATTACHMENT.
Pittsburgh, C. C. & St. L. R. Co. v. Mont By Subcontractor, see ACTION OR SUIT,
gomery (Ind.)


26. Failure to give an instruction which

Power to Set aside Levy of, on Exempt
is not requested upon a matter to which the

Property, see LEVY AND SEIZURE,
attention of the court is not called is not

reversible error. State v. Coleman (Mo.)


Modification of judgment by appellate Attachment; exemptions from; exemp-

tion of debt; effect of parting with exempt
27. The appellate court may correct a property and acquiring, in lieu thereof,
judgment which erroneously imposes im- property not exempt; statutory exemption
prisonment in addition to a fine for a stat- of money accruing from life insurance ;
utory misdemeanor, by striking out the er- meaning of word “accruing;" exemption
roneous portion and affirming the judgment from liability for claims against bene-
as modified. Pressly v. State (Tenn.) 291 ficiary; right of legislature to increase

amount of property which debtor may

claim as exempt; liberal construction of
exemption statute.

Appeal; reversal for improper remarks

Of growing crops.

of prosecuting attorney.


Failure to file assignments of error; suf A resolution expelling a member from
ficiency of general assignments. 574 the legislature is not a bill of attainder for-

bidden by the Constitution. French v. Sen-

ate (Cal.)

Appropriations to aid counties in the
construction of public roads are not forbid-


To Accept or Receive Bribe,
den by a constitutional provision that the

general assembly shall not have power to
involve the state in the construction of ATTORNEY GENERAL.
works of internal improvement, nor to Judicial Notice of Order on, to Prose-
grant any aid thereto, which shall involve

cute Criminal Proceedings,
the faith or credit of the state, nor make

any appropriation therefor. Bonsal v. Yel Signing of Indictment by, see INDICT-
lott (Md.)










are correctly stated. Loomis v. Wallblom
1. The pardoning of a lawyer who has (Minn.)

been convicted of embezzling funds from
his client does not efface the moral turpi- to assume or to renounce the leases and

2. A trustee in bankruptcy has the option
tude and want of professional honesty in other executory contracts of the bankrupt,
volved in the crime, nor obliterate the stain

as he may deem for the best interest of the
upon his moral character. People ex rel. estate. Watson v. Merrill (C. C. App. 8th
Deneen v. Gilmore (Ill.)

2. A license to practise law will be re- Provable claims.
voked which is secured by a fraudulent

3. Rents which a bankrupt had agreed
concealment of the fact that the plaintiff to pay at times subsequent to the filing of
has recently been convicted of embezzling the petition in bankruptcy do not consti-
funds from a client in another state,-es-
pecially if, since its issuance, the plaintiff tute a provable claim under the bankruptcy
has been guilty of professional misconduct law of 1898, because they are not a “fixed
evincing such lack of personal integrity and


absolutely owing at the
professional honor as to establish that he is time of the filing of the petition against
unworthy to be allowed to hold it.


him,” and because they do not constitute

an existing demand.

4. Damages for the breach of a contract

of the bankrupt to pay rents at times sub-
Attorneys; disbarment of, for conviction sequent to the filing of the petition in
of felony; in case of pardon of felony;

bankruptcy not fixed liability,
where misconduct does not relate to pro: absolutely owing, which may be proved in
fessional engagement.


bankruptcy proceedings under the law of

Sufficiency of Service to Authorize Per. Effect of adjudication.

sonal Judgment for, against De 5. An adjudication of bankruptcy ab-
fendant in Divorce Suit, see WRIT solves the bankrupt from no agreement,

terminates no contract, and discharges no


6. An adjudication of bankruptcy in a
Judicial Notice as to Speed of, see case in which there was no rent due at the

time of the filing of the petition in bank-
1. Requiring an automobile to carry a ruptcy does not constitute a breach at that
number does not violate the constitutional time of the covenants of the bankrupt in
provision against unreasonable searches, or his lease to pay rents accruing thereafter.
compel the owner to testify against himself,

or deprive him of property without due Discharge and its effect.
of law. People Schneider

7. A full discharge of the individual


liability of one partner on a firm debt may
2. Power to require the registering and be had in bankruptcy proceedings concern-
numbering of automobiles is conferred upon ing that partner only. Loomis v. Wall-
the city council by charter authority to con- blom (Minn.)

trol, prescribe, and regulate the manner in

8. A discharge of individual liability on
which the streets shall be used and en-

a firm debt in bankruptcy proceedings con-


cerning one partner only is a good defense

in an action brought against both partners

to renew a judgment on a partnership debt,
Automobiles; ordinance requiring regis- the process in which action was served only
tering and numbering of.

on the partner who had been duly dis-

charged in bankruptcy proceedings, where

it appears that, many years before, the
Liability for, see CARRIERS, 6, 7. parties dissolved the firm, and the firm, to

the actual knowledge of the judgment

creditor, made an assignment of all un-
1. A debt is properly scheduled in bank- exempt firm and individual property under
ruptcy proceedings, so as to give notice to a state insolvency law, and that the claim
the creditor or his assignor, where in the was properly scheduled, and notice thereof
schedule the name of the original creditor duly given; and it does not affirmatively ap.
and the nature and the amount of the debt pear that any firm assets now exist. Id.

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be good on account of the owner, unless the

book has been lost and notice in writing
Bankruptcy; effect of institution of pro- given to the bank, where a pass book is pre-
ceedings to dissolve all contracts of bank sented by a person other than the depositor
rupt; right to prove claim for unaccrued to whom it belongs, together with a forged
rent in.

719 check bearing a signature similar to that
Discharge of partnership liability in in- of the depositor, and there is nothing to
dividual bankruptcy proceedings:-(I.) arouse the suspicion of the teller, or put
Scope; (11.) provability of partnership him upon inquiry, as a reasonably prudent
debts in individual proceedings: (a) in man, as to the genuineness of the check,
troductory; (b) in general; (c) excep- and the bank in good faith pays the check.
tions: (1) absence of joint assets or solvent believing the person presenting it to be the
partners: (a) in general; (b) when part depositor, it is not liable in a suit by the
nership assets have been assigned to bank depositor to recover the money so paid, not-
rupt; (2) fraudulent abstraction of part. withstanding another rule of the bank, that
nership funds by bankrupt; (3) right of depositors must always present their pass
petitioning joint creditor to prove; (III.) | books when depositing or withdrawing
discharge of partnership liability in in- money, and that, “if not present personally,
dividual proceeding: (a) discharge of lia an order properly signed and witnessed
bility by reason of provability of claim: must accompany the presentation of the
(1) in general; (2) the English doctrine; book in case of withdrawal.”

(b) necessity of making firm or copart 5. Failure of the officers of a savings
ners parties: (1) under bankruptcy law of bank to make a physical comparison of the
1867: (a) in general; (b) in absence of signature on a draft presented with a de-
joint assets; (2) under bankruptcy law of positor's bank book with his signature on
1898: (a) in general; (b) in absence of file will render it liable for paying out
joint assets.

771 | money on a forged draft, in the absence of
Effect of discharge in bankruptcy of in- some unusual and pertinent excuse which
dividual partner on partnership liability; will justify such failure. Kelley v. Buf-
sufficiency of notice of proceedings to in- falo Sav. Bank (N. Y.)

terested party; right of trustee of individual 6. Ordinary

under the circum-
bankrupt to administer assets of firm of stances of each particular case, is the meas-
which he is a member; no scheduling re ure of the duty of a savings bank in paying
quired where creditor had actual notice: money out of a depositor's account after
discharge includes all claims. 772 | his death, upon production of the bank book

and the presentation of a draft purporting

to bear his signature, when the bank has no
1. A depositor in a savings bank is bound actual notice of the depositor's death, and
by the reasonable rules of the bank, to nothing has transpired to charge it with
which he assents by an agreement in writ- knowledge of that fact.

ing. Langdale v. Citizens' Bank (Ga.) 7. A regulation printed in the deposit

341 | books of a savings bank relieving the bank
2. A depositor in a savings bank, by ac-

from liability for any fraud that may be
cepting and using a deposit book, assents practised on its officers in withdrawing
to and is bound by the rules printed there money by means of forged certificates, does
in regulating the method of withdrawing not relieve the bank from its duty to exer-

Chase 1. Waterbury Sav. Bank cise ordinary care to prevent payment to

329 the wrong person. Chase v. Waterbury
Bank's liability on payment to wrong

Sav. Bank (Conn.)


Effect of depositor's negligence.
Question for Jury as to, see TRIAL, 10. 8. A depositor in a savings bank is not

See also APPEAL AND ERROR, 14. estopped to hold the bank responsible in
3. A rule of a bank that payment made case it negligently pays the deposit to an
to a person presenting a pass book shall be unauthorized person by the fact that he
good and valid on account of the owner, also is negligent in the care which he takes
unless the pass book has been lost and no- of his bank book.

tice in writing given to the bank before

9. Negligence of a depositor in a savings
such payment is made, is reasonable and bank in failing to keep his deposit book
binding upon depositors. Langdale v. Citi where it will not fall into the hands of per-
zens' Bank (Ga.)


sons who will fraudulently withdraw the
4. Under a rule of a bank that payment deposit does not relieve the bank from lia-
to a person presenting a pass book shall | bility in case it is guilty of negligence in

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