erroneous ruling on a demurrer to the answer. -Haas v. City of Evansville (Ind. App.) 46. A judgment will not be reversed for failure to assess nominal damages.-Stewart v. Strong (Ind. App.) 95. It is harmless error to refuse testimony tending to prove something already established.Heath v. Carter (Ind. App.) 318. Refusal to submit a question to the jury held harmless where the answer could be in ferred from the facts found.-Keller v. Gaskell (Ind. App.) 363. Error in overruling a demurrer is not ground for reversal where the defective allegations did not work injury.-Robinson v. Nipp (Ind. App.) 408. Where jury are directed to return special verdict, the giving of general instructions is harmless error.-Perrin Nat. Bank v. Thompson (Ind. App.) 410. Where the offer of proof is much broader than the question refused, held not available error to refuse the offer.-Masons' Union Life Ins. Ass'n v. Brockman (Ind. App.) 493. Error in excluding evidence is not ground for reversal, where it could not have changed the verdict. Masons' Union Life Ins. Ass'n V. Brockman (Ind. App.) 493. - Error in sustaining a demurrer to a paragraph of a complaint is harmless where the facts alleged are provable under other paragraphs.— Hardison v. Mann (Ind. App.) 899. Where evidence offered by defendant was excluded because plaintiff admitted the facts it tended to show, the court's error in not telling the jury of the effect of the admission was not harmless.-Whiteside v. Loney (Mass.) 931. Error in overruling a demurrer held not cause for reversal where no prejudice was shown to the adverse party.-Yocum v. Allen (Ohio) 909. § 25. Error waived in appellate court. § 26. Decisions of intermediate courts. Decision of appellate court on certain questions of fact held conclusive.-Wright v. Avery (Ill.) 204. Question of fact settled by appellate court will not be reviewed by supreme court.-Leon v. Goldsmith (III.) 676. Recitals of the judgment of the appellate court are conclusive as to questions determined, though the opinion asserts the contrary.Calumet Electric St. Ry. Co. v. Van Pelt (Ill.) 678. Appellate court held to have the right to consider a refusal to instruct for defendant.Gall v. Beckstein (Ill.) 711. § 29. Liabilities on bonds. Appeal from special to general term of superior court, requiring a bond, under Rev. St. 1894, § 1414, is discretionary.-Broden v. Thorpe Block Saving & Loan Ass'n (Ind. App.) 403. After a bond has been approved as to conditions and surety, the surety cannot object that it does not conform to the order of court.Broden v. Thorpe Block Saving & Loan Ass'n (Ind. App.) 403. cient.-Broden v. Thorpe Block Saving & Loan Complaint in action on appeal bond held suffiAss'n (Ind. App.) 403. Bond given on appeal from decree of foreclosure, on affidavit of respondent showing damages and a probability of a deficiency, construed, and held, that recovery could be had against sureties after affirmance for a deficienbond.-Broden v. Thorpe Block Saving & Loan cy arising not exceeding the amount of the Ass'n (Ind. App.) 403. APPEARANCE. By entry of appearance in foreclosure defendant is bound to take notice of all subsequent actions.-Domestic Building Ass'n v. Nelson (Ill.) 194. A nonresident attachment debtor may appear specially to question the jurisdiction over the res on the ground of invalidity of service of the writ.-Pack, Woods & Co. v. American Trust & Savings Bank (Ill.) 326. APPLIANCES. Liability of employer for defects, see "Master and Servant," § 3. APPOINTMENT. The fact that a trial court might have directed a verdict held not to warrant the appel- Of receiver, see "Receivers," § 2. late court in entering a judgment for damages on facts found, under Prac. Act, § 87, relating to final determination of causes in appellate court.-City of Spring Valley v. Spring Valley Coal Co. (Ill.) 1067. ARBITRATION AND AWARD. Failure to accept offer of arbitration as a condition precedent to right to sue held a waiver of the right to arbitration.-Jones v. Brown | signee, passes title, notwithstanding the assign(Mass.) 648. or does not file his schedule within five days.Pitman v. Marquardt (Ind. App.) 894. The question whether there has been a breach of an agreement cannot be submitted to arbitration.-Jones v. Brown (Mass.) 648. ARMY AND NAVY. See, also, "Militia." Acts authorizing the erection of a soldier's monument construed, and held, that preparation of models was part of the original plan, and that the payment therefor should be made out of the funds specially provided, and not out of the general fund of the state.-Board of Regents of State Soldiers' & Sailors' Monument v. Dailey (Ind. Sup.) 814. ARREST. An entry, "By order of court, certificate not to issue," occurring in a record of an examination of one desiring to take the poor debtor's oath, does not mean that the debtor was then discharged.-Tufts v. Hancox (Mass.) 459. ARREST OF JUDGMENT. In civil actions, see "Judgment," § 2. ARSON. It is error to admit evidence tending to show that the defendant has used violence to his servant, whom it is claimed he procured to set the fire.—People v. Fitzgerald (Ñ. Y.) 846. Evidence was given, under exception, of previous fires destroying property of the same party, and of the cancellation of policies of insurance taken out by defendant, but no evidence that the fires were incendiary. Held, that the evidence was not admissible, and it was error to decline to instruct the jury to disregard it.-People v. Fitzgerald (N. Y.) 846. A witness having testified that certain insurance policies were given him for collection by the defendant, who it was claimed intended to appropriate the proceeds, held, that it was error to refuse to allow the defendant to show on cross-examination that he had instructed the witness to pay the proceeds of the policies to another person.-People v. Fitzgerald (N. Y.) 846. ASSESSMENT. § 2. Administration of assigned estate. Evidence held to show that the assignee, by his attorney, had taken possession of property in another state, so as to precede a levy.-Pitman v. Marquardt (Ind. App.) 894. Where the law of the place of an assignment required nothing but the deed to vest title, the assignee's possession thereunder is sufficient to protect him against subsequent attachment.Pitman v. Marquardt (Ind. App.) 894. Failure of an assignee to file an inventory of the estate within 15 days after his qualification (Ky. St. § 81) does not devest his title or right of possession.-Pitman v. Marquardt (Ind. App.) 894. One to whom a conveyance in fraud of insolvent laws is made cannot escape liability by depositing money in another jurisdiction.-Cunningham v. Seavey (Mass.) 545. solvency, could recover under a certain count Error in holding that plaintiff, assignee in inin the declaration, held harmless, there being a count alleging possession by defendant of the property which defendant claimed to hold for plaintiff.-Cunningham v. Seavey (Mass.) 545. § 3. Rights and remedies of creditors. An attachment creditor of one state cannot complain that an assignment in another state is invalid in the former state, on the ground that the one state allows preference to creditors and the other does not.-Pitman v. Marquardt (Ind. App.) 894. An assignment in one state cannot be attacked in another state on the ground that the amount of exemption provided by the laws of the former is greater than that provided by the laws of the latter.-Pitman v. Marquardt (Ind. App.) 894. ASSOCIATIONS. See, also, "Building and Loan Associations." The constitution of the high court of the Order of Foresters held to govern the local courts, and to prevent seceders from the local courts from retaining possession of its effects.-Ahlendorf v. Barkous (Ind. Ann.) 887. A member of a voluntary association, formed for mutual benefit, has an interest in the general assets of the association only so long as he remains a member, unless there is a dissolution. Of compensation for property taken for public-Ahlendorf v. Barkous (Ind. App.) 887. use, see "Eminent Domain," § 2. Of expenses of public improvements, see "Municipal Corporations," $$ 6, 7. Of tax, see "Taxation," § 3. ASSIGNMENT OF ERRORS. See "Appeal and Error," § 15. ASSUMPSIT, ACTION OF. See, also, "Money Received." Where a contract has been performed, and nothing remains to be done but to pay the amount due, a recovery may be had thereon under the common counts.-Shepard v. Mills (Ill.) 709. ASSUMPTION. Of risk by employé, see "Master and Servant," $ 7. ASSUMPTION OF RISKS. See "Master and Servant." ATTACHMENT. See, also, "Execution." § 1. Nature and grounds. The statute does not authorize a second attachment in aid of a pending suit; and where plaintiff, after the first writ has failed of ef fect, sued out a new writ in the same cause against the same defendant, but on a new bond and affidavit, such was in effect a second writ, and invalid.-Pack, Woods & Co. v. American Trust & Savings Bank (Ill.) 326. § 2. Proceedings to procure. Under Burns' Rev. St. 1894, § 320, affidavits in attachment held sufficient to warrant the publication of notice to nonresident defendants.Redman v. Burgess (Ind. App.) 825. § 3. Lien. Attachment Act, § 37, requiring attachment creditors whose judgments are entered at the same term to share pro rata in the proceeds of See "Elections," § 3. BANKRUPTCY. the attachment, but giving a priority to an attachment creditor whose superior diligence has made the property available to satisfy judgments, construed as to priorities.-MacVeagh See, also, "Assignments for Benefit of Creditv. Royston (Ill.) 153. 84. Proceedings to support or enforce. Notice to defendant in attachment is sufficient if served before judgment.-Runner v. Scott (Ind. Sup.) 479. The published notice of pendency of an action against nonresidents need not state that the money demands comprising the action are to be enforced by attachment or garnishment.Redman v. Burgess (Ind. App.) 825. § 5. Abandonment. Attachment proceedings held not abandoned because a receiver was appointed, and that another order of attachment could be issued and other property of debtor taken thereunder. Runner v. Scott (Ind. Sup.) 479. § 6. Claims by third persons. Instructions by consignor given to consignee, to apply the proceeds of the property to the payment of a debt owing a third person, held not to constitute an equitable assignment of the proceeds as against an attaching creditor.-Shannon v. Wolf (Ill.) 682. One taking a mortgage after property has been attached is in no better position than the mortgagor.-Runner v. Scott (Ind. Sup.) 479. Where receiver reported that amount claimed by plaintiff in attachment is correct, a third party cannot complain of an order of the court for the sale of the property held under such attachment.-Runner v. Scott (Ind. Sup.) 479. A compulsory assignee of Illinois may intervene in action in Massachusetts to claim insolvent's property. attached by resident of Vermont.-Witters v. Globe Sav. Bank (Mass.) 932. ATTORNEY AND CLIENT. Attorneys in fact, see "Principal and Agent." 1. The office of attorney. A member of a law firm held to have no authority to indorse note in name of firm to secure money for its expenses.-Worster v. Forbush (Mass.) 936. § 2. Duties and liabilities of attorney to client. Failure of attorney engaged to protect rights of owner of land taken for public purpose held to cause damage to owner entitling him to action against attorney.-Drury v. Butler (Mass.) 527. Where attorney engaged to protect rights of owner of land taken by a town neglects so to do during the statutory period, a settlement by the owner with the town, stipulating that it should not affect its action against the attor ors"; "Insolvency." A bank receiving a foreign draft for collection held not liable for the default of a subagent to whom it was transmitted.-Irwin v. Reeves Pulley Co. (Ind. App.) 317. A bank which had used the proceeds of a sale of property made under an agreement of a debtliable to the debtor for the surplus.-Paxton v. or with its officers, to satisfy certain notes, held Vincennes Mfg. Co. (Ind. App.) 583. The liability of a bank for a deposit is only to the depositor, and in a suit to establish a trust in a deposit the depositor is a necessary party. Gregory V. Merchants' Nat. Bank (Mass.) 520. Indorsement on a check "for collection" held a guaranty that names of indorsers on paper are genuine.-First Nat. Bank of Belmont v. First Nat. Bank of Barnesville (Ohio) 723. Indorsement of check "for collection" by one other than payee does not guaranty that the name of drawer is genuine.-First Nat. Bank of Belmont v. First Nat. Bank of Barnesville (Ohio) 723. Indorsement "for collection" held notice to drawee that drawer is only agent of the owner, authorized to receive payment.-First Nat. Bank of Belmont v. First Nat. Bank of Barnesville (Ohio) 723. Drawee bank held bound to know the signature of its depositor, and negligent in charging a forged check to his account.-First Nat. Bank of Belmont v. First Nat. Bank of Barnesville (Ohio) 723. Where drawer of check has no account indi ney, is not a bar to such action.-Drury v. But-vidually with bank, but has one in trust caler (Mass.) 527. AUTHORITY. Of agent, see "Principal and Agent." pacity, the bank cannot pay the check, and charge it to the trust account.-First Nat. Bank of Belmont v. First Nat. Bank of Barnesville (Ohio) 723. BENEFICIAL ASSOCIATIONS. See "Associations." a valuable consideration, to pay the note.-Hinkle v. Hinkle (Ind. App.) 829. The burden is on plaintiff to prove the genuineness of signatures to notes indorsed by the payee after maturity, where the statutory demand to prove the signatures has been made.Sears v. Moore (Mass.) 1027. Admissions by the payee of notes, made while they were his property, are admissible against the indorsee, where he acquired them after maturity.-Sears v. Moore (Mass.) 1027. Where the statutory denial of the genuineness of signatures to notes has been filed, defendant is entitled to go to the jury on the Building or loan associations, see "Building and credibility of plaintiff's testimony of their genu Loan Associations." § 4. Actions. Where the maker of a note is sued by an assignee thereof, a request to instruct the jury that they "should consider the plaintiff a bona fide holder and purchaser of the note" should be refused, if there are any circumstances in evidence to the contrary.-Hamilton v. Henneman (Ind. App.) 43. A letter written by the maker to the payee before a transfer of the note held admissible to show the good faith of the purchaser. Cooper v. Hocking Val. Nat. Bank (Ind. App.) 775. The maker of a note cannot bring a stranger into the action, who agreed with the maker, for ineness.-Sears v. Moore (Mass.) 1027. BONDS. See, also, "Appeal and Error," § 29; "Guardian and Ward"; "Injunction," § 4; "Trusts," § 6. Municipal bonds, see "Municipal Corporations," $ 11. Sureties on bonds, see "Principal and Surety." Question whether there was an agreement that a bond should not be delivered unless signed by others held for the jury where the evidence was conflicting.-Spencer v. McLean (Ind. App.) 769. BOUNDARIES. See, also, "Fences"; "Municipal Corporations," $ 1. § 1. Description. A deed conveying to the meander line of a river held to mean the actual water line.-Sizor v. City of Logansport (Ind. Sup.) 377. § 2. Ascertainment and establishment. Written consent to survey by county surveyor held only to dispense with notice required by statute.-Wood v. Kuper (Ind. Sup.) 755. Consent to a survey, and failure to appeal from it as made, held not to estop landowner from asserting title to the land under claim of adverse possession, where time for appeal has not expired, under Burns' Rev. St. 1894, § 8030.-Wood v. Kuper (Ind. Sup.) 755. BREACH. Of covenant, see "Covenants," § 2. BREACH OF MARRIAGE PROMISE. A mere postponement of marriage for reasonable cause held not a breach of the marriage contract.-Walters v. Stockberger (Ind. App.) 763. An offer of marriage accepted by the other constitutes a marriage contract.-Walters v. Stockberger (Ind. App.) 763. willing to marry defendant, and that he refused To recover, plaintiff must show that she was to marry her.-Walters v. Stockberger (Ind. App.) 763. Sufficiency of evidence to prove contract of marriage will not be considered on appeal.Walters v. Stockberger (Ind. App.) 763. BRIDGES. § 1. Regulation and use for travel. the New York and Brooklyn bridge have power Under Laws 1897, c. 663, § 4, the trustees of to make plans for the use of cars on the bridge, which depart substantially from the plans rec ommended by the expert engineers.-Hearst v. Shea (N. Y.) 788. BROKERS. Insurance brokers, see "Insurance," § 3. § 1. Regulation and conduct of ness in general. Contract made with the board of publie works, or other agents of the state, for the use of water of the canal, terminates with the abandonment of the use of the canal by the busi-state.-Vought v. Columbus, H. V. & A. Ř. Co. (Ohio) 442; Walsh v. Same, Id.; Wright v. Same, Id.; Shotwell v. Same, Id. A person may be a stock broker though he receives the stock certificates into his possession and makes the transactions in his own name.-Banta v. City of Chicago (Ill.) 233. § 2. Compensation. A letter stating that certain bids included a commission for plaintiff broker held not to give him a right of action, where the subsequent contract was not secured by his efforts.-Houghton v. Milford Pink-Granite Co. (Mass.) 646. One who had been offered commissions for obtaining business not known about by defendant held not entitled to commissions on a contract which defendant had been figuring on, on the ground of an express promise to pay.Houghton v. Milford Pink-Granite Co. (Mass.) 646. BUILDING AND LOAN ASSOCIATIONS. The rights of a stockholder of a foreign building association are determined by the statutes of the state, and not by those of the state in which the association is organized.-St. Louis Loan & Investment Co. v. Yantis (III.) 807. A verbal notice of an intention to withdraw held sufficient under the statute.-St. Louis Loan & Investment Co. v. Yantis (Ill.) 807. Though the statute provides that more than one-half the funds of a building association cannot be paid to withdrawing members without the directors' consent, yet one suing for withdrawal value need not show the condition of the treasury.-St. Louis Loan & Investment Co. v. Yantis (II.) 807. A loan by a Missouri building association to a resident of Illinois at a usurious rate, unless governed by Starr & C. Ann. St. p. 632, exempting such associations from the penalties for usury, hold usurious where building associations of Missouri had powers directly opposed to the idea of such an association as protected by such statute.-Rhodes v. Missouri Savings & Loan Co. (Ill.) 998. Under Laws 1893, p. 85, §§ 16, 17, directing attorney general to institute proceedings on report of auditor that association is insolvent, or conducted illegally, it is the duty of the auditor in the first instance to determine such questions, and he is not bound by opinion of attorney general.-Illinois Building & Loan Ass'n v. People (Ill.) 1007. CANCELLATION OF INSTRUMENTS. See, also, "Reformation of Instruments." Cancellation of insurance policy, see "InsurSetting aside ance," § 6. fraudulent conveyances, see "Fraudulent Conveyances," § 2. 8 1. Right of action and defenses. Evidence held to show deed executed under undue influence.-Dorsey v. Wolcott (Ill.) 1015. § 2. Proceedings and relief. A bill to set aside a conveyance on the ground that the grantor was nou compos need not offer to return the consideration.-Ronan v. Bluhm (Ill.) 694. Evidence held insufficient to show ratification Dorsey v. Wolcott (Ill.) 1015. of deed made by one mentally incompetent. A deed in consideration of support for life should be canceled where grantee fails to perform.-Dorsey v. Wolcott (Ill.) 1015. Evidence in suit to cancel mortgage on the ground of no consideration held not necessarily to compel a finding for defendant.-Baum v. Thoms (Ind. Sup.) 357. Complaint in action to cancel mortgage because given to secure a debt which had been fully paid and obtained by threats held to state a cause of action.-Baum v. Thoms (Ind. Sup.) 357. Upon the evidence, in an action to set aside a deed, held, that the question of its delivery and acceptance with a knowledge of its contents should have been submitted to the jury.Ten Eyck v. Whitbeck (N. Y.) 963. stood in a confidential relation to the grantor, When a deed has been obtained by one who the onus is on him to show the fairness of the transaction.-Ten Eyck v. Whitbeck (N. Y.) 963. CARRIERS. § 1. Carriage of goods. In the absence of notice a consignee must be treated as owner of goods with authority to control them in transit.-Tebbs v. Cleveland, C., C. & St. L. Ry. Co. (Ind. App.) 486. Under Laws 1893, p. 85, §§ 16, 17, directing A stop-over privilege contained in a bill of attorney general to institute proceedings to lading held presumably for benefit of consignee. wind up association, held, that allegations of in--Tebbs v. Cleveland, C., C. & St. L. Ry. Co. solvency and the giving of the statutory no- (Ind. App.) 486. tice admitted by the answer confer jurisdiction.-Illinois Building & Loan Ass'n v. People (Ill.) 1007. BUILDING CONTRACTS. See "Contracts." BURDEN OF PROOF. In civil actions, see "Evidence," § 3. CANALS. Owners of land abutting on a canal, incidentally benefited by its operation, have no prop erty interests, so as to entitle them to relief on the abandonment of the canal.-Vought v. Columbus, H. V. & A. R. Co. (Ohio) 442: Walsh v. Same, Id.; Wright v. Same, Id.; Shotwell v. Same, Id. In action for failure to stop a car at intermediate points, as provided in bill of lading on request of consignee, the fact that request was unreasonable, and not sufficiently definite, held matter of defense.-Tebbs v. Cleveland, C., C. & St. L. Ry. Co. (Ind. App.) 486. Where goods in the carrier's custody were seized by a levying officer, and stolen while in his constructive possession, the carrier, having given prompt notice to the consignee, was not liable on the bill of lading.-Indiana, I. & I. Ry. Co. v. Doremeyer (Ind. App.) 497. Evidence held insufficient to show that a contract of express company made in Illinois was Brockway v. American Exp. Co. (Mass.) 626. to be governed by the laws of New York. § 2. Carriage of live stock. A contract of carriage is controlled by the law of the state where the contract is made.Illinois Cent. R. Co. v. Beebe (Ill.) 1019. |