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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

XII. BRIEFS.

758(1) (Ind.App.) Appellate Court not required to pass on question as to which no claim made.-Davis v. Steele, 146 N. E. 425.

758 (2) (Ind.) Failure to show offer to introduce evidence, its exclusion, or exception thereto, precludes review of objection to its exclusion. D'Arcy Spring Co. v. Ansin, 146 N. E. 214.

pertinent, and those not given not applicable.
-Ferguson v. Bilsland, 146 N. E. 326.
Where evidence not in record, instructions
correct under any evidence admissible under
issues will not be held erroneous.-Id.

928 (3) (Ind.App.) Instruction presumed to
have correctly stated law as pertinent to evi-
dence, where evidence is not in record.-Jen-
kins v. Vincennes Bridge Co., 146 N. E. 863.
construed
930(1) (Ind. App.) Evidence
most favorably to appellee in considering suffi-
ciency of evidence to sustain verdict.-Nolte v.
Eyden, 146 N. E. 866.

760(2) (Ind.App.) Exclusion of answer to impeaching question for failure to lay foundation need not be considered, where brief does not show where foundation can be found in record.-Hutchens v. State, 146 N. E. 413.930 (2) (Ind.) Jury assumed to have relied 768 (Ind.) Appellee's statement that reon recollection of what court said in reading fused instructions not set out in appellant's submitted.-Crane v. Hensler, 146 N. E. 577. instructions in choosing among forms of verdict brief were covered by instructions given, accepted as correct. Crane v. Hensler, 146 N. Instruction as to form of verdict not con

E. 577.

768 (Ind.App.) Appellate court justified in assuming that testimony set out in appellee's brief correct where not challenged by appellant. -Nolte v. Eyden, 146 N. E. 866.

XIII. DISMISSAL, WITHDRAWAL, OR

ABANDONMENT.

781 (4) (Mass.) Certificate of election having genuine value to petitioner, question raised thereon was not moot.-Madden v. Board of Election Com'rs of City of Boston, 146 N. E. 280.

792 (III.) Attempted appeal from nonappealable orders dismissed on court's own motion.-Trebbin v. Thoeresz, 146 N. E. 542.

XVI. REVIEW.

(A) Scope and Extent in General. 842(1) (Ind.App.) Whether broker broke contract to procure credit on purchasers' contract held fact question for trial court.-Furman v. Glueck, 146 N. E. 586.

858 (Mass.) Appeal in law proceeding brings up record only.-Jones v. Benjamin, 146 N. E. 359.

861 (Mass.) Finding set aside and new trial ordered, where on report it could not be determined whether finding was right.-Kaufman v. Sydeman, 146 N. E. 365.

863 (III.) No review of case on merits until trial court has decided case on merits.Runyan v. Williams, 146 N. E. 497.

865 (Ind.App.) Denial of motion for continuance not reviewable on appeal in statutory action to set aside default.-Cooper v. Farmers' Trust Co., 146 N. E. 336.

(C) Parties Entitled to Allege Error. 877(2) (Ind.) Verdict and finding on note not open to question by defendant where not rendered against him.-Rich v. Fry, 146 N. E. 393.

(E) Presumptions.

907(3) (111.) Evidence presumed to support findings, where certificate was not incorporated in record.-Williams v. De Roo, 146 N. E. 470.

907(3) (Ohio) Where record discloses judgment rendered on evidence by both parties, presumption is that evidence was sufficient to sustain judgment.-Butterick Pub. Co. v. Smith, 146 N. E. 898.

907 (4) (Mass.) All inferences made to support findings, where all evidence not reported. -Kaufman v. Sydeman, 146 N. E. 365.

909 (5) (Ind.App.) One contracting with husband presumed in absence of allegation to contrary to have known that title was in husband and wife by the entireties.-General Realty Co. v. Silcox, 146 N. E. 408.

trolling in determining whether verdict is sustained by evidence.—Ïd.

(F) Discretion of Lower Court.

959 (2) (Mass.) Denial of motion to substitute declaration held not available to plaintiff.-Blaufarb v. Drooker, 146 N. E. 242.

960(1) (Ohio) Discretion abused when petition dismissed because of allegations not well pleaded.-Walters v. Baltimore & O. S. W. Ry. Co., 146 N. E. 75.

967 (2) (Mass.) Appeal from order refusing to recommit to master presents no question of law. Selwyn v. Harris, 146 N. E. 248.

977(1) (Mass.) When ruling on motion for new trial set aside stated.-W. R. Grace & Co. v. Shaghalian's, Inc., 146 N. E. 799.

978(1) (Mass.) Denial of new trial for insufficiency of evidence to show conformity of goods with sample was not error of law, where no request was made for instruction.-W. R. Grace & Co. v. Shaghalian's, Inc., 146 N. E. 799.

Denial of new trial, because there was no evidence that peanuts delivered corresponded to sample, held to present no question of law.-Id.

979(5) (Mass.) Exception that denial of new trial on condition of remittitur was against weight of evidence, and against the law, raised no question of law.-W. R. Grace & Co. v. Shaghalian's, Inc., 146 N. E. 799.

(G) Questions of Fact, Verdicts, and Findings.

987 (2) (Mass.) Finding of fact by trial judge cannot be reviewed.-J. G. Pierce Co. v. Wallace, 146 N. E. 658.

994 (3) (Mass.) Conclusions of trial judge in passing on testimony not subject to review. -Bar Ass'n of City of Boston v. Sleeper, 146 N. E. 269.

1001 (1) (Ohio) Requested special verdict, supported by evidence, not set aside.-Portage Markets Co. v. George, 146 N. E. 283.

1002 (III.) Sufficiency of contradictory evidence not open to question where Appellate Court has passed on it.-George J. Cooke Co. v. Fred Miller Brewing Co., 146 N. E. 459.

1002 (III.) Verdict and judgment conclusive on conflicting evidence of lessor's waiver of timely notice of exercise of renewal option. -Fuchs v. Peterson, 146 N. E. 556.

1003 (Ind.App.) Appellate Court will not weigh evidence, where jury's finding on question of fact is supported by some evidence.-Amos v. Daggett, 146 N. E. 583.

1003 (Mass.) Weight of evidence was for jury.-Buono v. Cody, 146 N. E. 703.

1004 (3) (Mass.) Inclusion of unauthorized items in verdict held not to taint validity of jury's action.-W. R. Grace & Co. v. Shaghalian's, Inc., 146 N. E. 799.

927(7) (II.) Evidence favorable to plain-1010(1) (Ind.) Finding as to legality of intiff only considered, in reviewing action of surance contract not disturbed.-S. S. Kresge court in directing verdict for defendant.-Hunt- Co. v. Union Ins. Co. of Indiana, 146 N. E. 851. er v. Troup, 146 N. E. 321.

928(3) (Ind.) Where evidence not in transcript or brief, instructions given presumed

1010(1) (Ohio) Finding on fact issues supported by competent evidence not disturbed.Katz v. American Finance Co., 146 N. E. 811.

1011(1) (Ind.) Reversal not ordered on conflicting evidence.-Kegerreis v. State, 146 N. E. 390.

1011(1) (Ind.) Finding for insurer not disturbed, where evidence was conflicting.-S. S. Kresge Co. v. Union Ins. Co. of Indiana, 148 N. E. 851.

1056 (2) (Mass.) Possible harm from refusal of offered evidence not shown.-Winslow Bros. & Smith Co. v. Universal Coat Co., 146 N. E. 713.

1061 (2) (Mass.) Appeal from order of dismissal not sustained, though order erroneous when plea of abatement sustained.-Finance Corporation of New England v. Parker, 146 N.

on conflicting
unless plainly E. 696.

1011(1) (Mass.) Decision oral testimony not reversed, wrong. Needham Trust Co. v. Cookson, 146 1064(1) (III.) Substantial error in instrucN. E. 268.

(H) Harmless Error.

tions ground for reversal, where evidence was conflicting.-Seavey v. Glass, 146 N. E. 536.

1033 (5) (Ind.App.) Appellant cannot com1068(3) (Ind.App.) Where it is apparent plain of favorable instruction.-Maxwell Im- both on law and facts that right result has been plement Co. v. Fitzgerald, 146 N. E. 883. reached, judgment will not be reversed for er1039(2) (Ind.) Overruling motion to sep-roneous instructions.-Allen Realty Co. v. Uharate complaint into paragraphs no cause for ler, 146 N. E. 766. reversing judgment.-Rich v. Fry, 146 N. E. 393.

1039(13) (Mass.) Verdict for plaintiff not upset, though cause of action not precisely set forth in declaration.-Gifford v. Eastman, 146 N. E. 773.

1068(5) (Mass.) Under finding of no negligence, refusal to instruct that defendant was responsible for negligent treatment by second physician held without error.-Kos v. Brault, 146 N. E. 16.

1068 (5) (Mass.) Exception to denial of request held immaterial, in view of verdict.-Lowenstein v. Silton, 146 N. E. 779.

1040(1) (Ind.App.) Antecedent overruling of demurrer, though erroneous, becomes harmless, where special findings of fact and conclu-1070(1) (Ind.) Buyer's specification that sions of law are within issues and valid.-Sawers Grain Co. v. Goodwin, 146 N. E. 837.

1040 (8) (Ind.App.) Error, if any, in sustaining demurrer to paragraph of reply, held harmless.-Allen Realty Co. v. Uhler, 146 N.

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146 N. E. 766.

1046(3) (Ind.App.) Error in instruction that plaintiff had burden under denial of affirmative defense held harmless.-Jenkins v. Vincennes Bridge Co., 146 N. E. 863.

1046 (3) (Ind.App.) Refusal to award plaintiffs right to open and close, if error, held harmless, in view of instruction.-Maxwell Implement Co. v. Fitzgerald, 146 N. E. 883.

1048 (7) (Ind.App.) Exclusion of testimony, if error, held harmless in view of subsequent testimony as to same fact by same witness.-Hutchens v. State, 146 N. E. 413.

verdict not sustained by evidence presents no error, where defendant admitted partial liability.-D'Arcy Spring Co. v. Ansin, 146 N. E. 214.

1071(!) (Ind.App.) Finding that court reporter's claim satisfied by payment held erroneous, but not prejudicial.-Etzold v. Board of Com'rs of Huntington County, 146 N. E. 842.

(I) Error Waived in Appellate Court.

1078(1) (III.) Questions of procedure, not raised and argued, not discussed.-Miller v. Miller. 146 N. E. 469.

1078 (4) (Mass.) Exceptions not argued are waived.-West v. State Street Exchange, 146 N. E. 37.

1078(4) (Mass.) Exception to admission of evidence, not argued, is waived.-Sullivan v. Manhattan Market Co., 146 N. E. 673.

(J) Decisions of Intermediate Courts.

1088 (Ohio) No motion for new trial being filed in Court of Appeals nor agreed statement or finding of fact, Supreme Court cannot pass on alleged errors of law.-State v. Clark, 146 N. E. $15.

1094 (2) (III.) Supreme Court cannot reverse judgment affirmed by Appellate Court, as 1050 (1) (II.) Admission of self-serving contrary to preponderance of testimony.-Chideclarations that seller is performing contract, cago German Hod Carriers' Union and Benevonot being part of res gestæ, held prejudicial.lent Soc. v. Security Trust & Deposit Co., 146 George J. Cooke Co. v. Fred Miller Brewing N. E. 135. Co., 146 N. E. 459.

(K) Subsequent Appeals.

1050(1) (Mass.) Answer having no probative value held harmless.-Walsh v. Feinstein, 1097(1) (III.) Decision on former appeal is 146 N. E. 355. law of case on subsequent appeal, where evi1050(3) (Mass.) Any error in admitting dence on two trials was substantially the same. cumulative evidence of conversations in plain--City of Chicago v. Collin, 146 N. Ë. 741. tiff's absence held without harm to defendant. 1097(2) (Ohio) When former determina-Perivoliotis v. Eveleth, 146 N. E. 724. tion of Court of Appeals on reversal and re1052(5) (Mass.) Master's admission in evi- mand not questioned on second review, stated. dence of letter from commissioner of public-Gohman v. City of St. Bernard, 146 N. E. health held not prejudicial.-Strachan v. Beacon 291. Oil Co., 146 N. E. 787.

1097(6) (Ohio) Unquestioned determina1052(8) (III.) Admission of testimony tion of Court of Appeals on reversal and reharmless where Supreme Court reached con- mand becomes law of case as rule of practice.clusion independently thereof.-Cales v. Dress-Gohman v. City of St. Bernard, 146 Ñ. E. 291. ler, 146 N. E. 162.

1056(1) (Mass.) Excluding evidence as to time necessary to start motor and drive automobile off crossing held without error.-Hunt v. Boston & M. R. Co., 146 N. E. 30.

Excluding evidence whether defendant would have had difficulty in driving stalled automobile off crossing held without error.-Id.

XVII. DETERMINATION AND DISPO-
SITION OF cause.

(A) Decision in General.

1114 (II.) Where only question was correctness of decree dismissing appeal, Appellate Court should have remanded cause for hearing on merits.-Runyan v. Williams, 146 N. E. 497.

(C) Modification,

1056(1) (Mass.) In action for water damage to flour, book entry of deceased inspector held improperly excluded, and error prejudicial. -Gentile Flour & Products Co. v. Moschella, 1149 (III.) Finding in decree, which appel

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

be stricken on objection of appellant.-Hasterlik v. Hasterlik, 146 N. E. 498.

(D) Reversal.

1175(5) (Mass.) Where motion for directed verdict should have been allowed, judgment will be entered for movant.-Clark v. Mutual Life Ins. Co. of New York, 146 N. E. 43.

ASSIGNMENTS.

I. REQUISITES AND VALIDITY. (A) Property, Estates, and Rights Assignable.

3 (Mass.) Remedial act giving assignee of nonnegotiable chose in action right to sue in own name is to be fairly construed.-Commonwealth v. Market Warehouse Co., 146 N. E. 29.

V.

1175(5) (Mass.) Where it was error to submit case to jury, judgment will be entered for defendant.-Hurley v. New York, N. H. & 24(1) (Mass.) Right of action for wareH. R. Co., 146 N. E. 235. houseman's failure properly to care for wool stored assignable.-Commonwealth Market Warehouse Co., 146 N. E. 29. Claims and demands of assignors for warehouseman's negligence in storing wool passed to assignee.-Id.

1175(7) (Mass.) Judgment to be entered on finding of judge on report of auditor where clearly right.-Vigilante v. Old South Trust Co.. 146 N. E. 670.

1177(6) (N.Y.) Difficulty in proving case for reformation no ground for denying hearing thereon.-Susquehanna S. S. Co. v. A. O. Andersen & Co., 146 N. E. 381.

(F) Mandate and Proceedings in Lower

Court.

1194 (2) (III.) Judgment of affirmance, after trial on merits, conclusive of matters which might have been raised or determined.-People v. Lord, 146 N. E. 506.

was

IV. ACTIONS.

121 (Mass.) Assignee may sue in own name.-Commonwealth v. Market Warehouse Co., 146 N. E. 29.

Act giving assignee right to sue in own name applies to all choses in aetion.-Id.

ASSOCIATIONS.

1195(3) (11.) Questions which could have See Insurance, 687. been presented are res judicata whether presented or not.-City of Chicago v. Collin, 146 .N. E. 741.

Judgment held res judicata as to right of holders of void tax deeds to reimbursement. -Id.

ASSUMPSIT, ACTION OF.

See Work and Labor.

ASSUMPTION OF RISK.
204-219.

See Master and Servant,

1197 (111.) On general remand of nonjury cause, determined by appellate tribunal on merits, inferior court can only enter judgment accordingly.-People v. Lord, 146 N. E. 506. See 1198 (II.) Where judgment reversed and cause remanded with specific directions trial court must carry them out.-People v. Lord, 146 N. E. 506.

~1201(1) (III.) Stipulation as to pleadings binding on second hearing after remand.-People v. Lord, 146 N. E. 506.

1201 (6) (Mass.) Amendment of declaration in accordance with rescript of Supreme Court after notice to surety on defendant's bond held binding on surety.-Weinstein v. Miller, 146 N. E. 902.

1203 (1) (.) Further proceedings consistent with Supreme Court's opinion must be determined from nature of case, in absence of specific directions.-People v. Lord, 146 N. E. 506.

ARBITRATION AND AWARD.

III. AWARD.

64 (N.Y.) Arbitrator making personal investigation, without notice to parties, held guilty of prejudicial misbehavior.-Stefano Berizzi Co. v. Krausz, 146 N. E. 436.

Evidence gathered without notice to parties may not be made basis of award.-Id.

ARGUMENT OF COUNSEL.

See Criminal Law, 717-730.

ARREST.

II. ON CRIMINAL CHARGES.

63(4) (Ind.) Peace officer may arrest without warrant on reasonable cause for belief that felony is being or has been committed.-Thomas v. State, 146 N. E. 850.

ARREST OF JUDGMENT. See Criminal Law, 969, 970.

ASSAULT AND BATTERY.

See Homicide.

ASSESSMENT.

See Drains, 76-89; Municipal Corporations, 405-508; Taxation, 376-496.

ATTORNEY AND CLIENT.
Criminal Law, -717-730.

I. THE OFFICE OF ATTORNEY.
(C) Suspension and Disbarment.
38 (11.) Effect of canons of ethics of the
American Bar Association stated.-Hunter v.
Troup, 146 N. E. 321.

38 (III.) Not unethical for attorney to insist on payment of reasonable charges.-People v. A'Brunswick, 146 N. E. 483.

38 (Mass.) Want of common honesty is adequate ground for disbarment.-Bar Ass'n of City of Boston v. Sleeper, 146 N. E. 269.

39 (Mass.) Perjury by attorney is ground for disbarment.-Bar Ass'n of City of Boston v. Sleeper, 146 N. E. 269.

43 (III.) Attorney held not subject to disbarment for refusal to abide by court order fixing fee.-People v. A'Brunswick, 146 N. E. 483.

Belligerent attitude, temper, and disposition of attorney not cause for disbarment.-Id.

49 (Mass.) Gross misconduct in open court may justify suspension or removal.-Bar Ass'n of City of Boston v. Sleeper, 146 N. E. 269.

52 (Mass.) Even though disbarment was based on perjury in disbarment trial, attorney should have opportunity to be heard thereon. -Bar Ass'n of City of Boston v. Sleeper, 146 N. E. 269.

53(2) (III.) Relator in disbarment proceedings held required to establish truth of serious charges beyond reasonable doubt.People v. Kerker, 146 N. E. 439.

53 (2) (III.) Fraudulent or dishonest motives warranting disbarment of attorney held not shown.-People v. A'Brunswick, 146 N. E. 483.

Attorney may be disbarred only on clear proof of misconduct and fraudulent or dishonest motives.-Id.

~54 (III.) Commissioner's report in disbarment proceedings held sufficient finding that respondent was not guilty.-People v. Kerker, 146 N. E. 439.

54 (III.) Laudatory letters stricken from respondent's briefs in disbarment proceedings. -People v. A'Brunswick, 146 N. E. 483.

54 (Mass.) Denial of request for ruling that evidence did not show deceit, malpractice,

264.

or other gross misconduct, held proper.-Bar ["mutual credits."-Putnam v. Handy, 146 N. E. Ass'n of City of Boston v. Sleeper, 146 N. E. 269. Request for ruling that attorney had been faithful to all his duties to client and as attorney properly refused.-Id.

Exclusive province of trial judge to follow own convictions in believing or discrediting testimony.-Id.

Denial of request for ruling that disbarment was not method of eliciting information sought held proper.-Id.

Finding that attorney, in giving testimony, was knowingly guilty of perjury held without .error.-Id.

Gross misconduct in open court may justify suspension or removal, but attorney should be

heard thereon.-Id.

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154 (Mass.) Member of stock exchange held entitled to set off balance due insolvent member against overdue notes of such member.Brickley v. Wrenn, 146 N. E. 797.

Brokers not required to realize on collateral securing note before applying on such debt balance in his hands due maker.-Id.

(C) Preferences and Transfers by Bankrupt, and Attachments and Other Liens.

165(1) (Mass.) Brokers' application of proceeds of stock purchased on margin to overdue notes of bankrupt held not preference.◄ Brickley v. Wrenn, 146 N. E. 797.

184 (2) (Mass.) Unrecorded mortgage of association practically owned by bankrupt held invalid as against receiver in bankruptcy.-MeGlue v. Loudon, 146 N. E. 255.

192 (Ind.App.) Lien for material was not divested by sale of building in subsequent bankruptcy proceedings against owner.-New Union Lumber Co. v. Good, 146 N. E. 584.

(F) Claims Against and Distribution of

Estate.

316(3) (Mass.) Subrogation statute held inapplicable where creditor proved claim against bankrupt's estate.-Westinghouse Electric & Mfg. Co. v. Fidelity & Deposit Co. of Maryland, 146 N. E. 711.

318(1) (Mass.) Broker's claim growing out of marginal account is provable in bankruptcy. -Brickley v. Wrenn, 146 N. E. 797.

V. RIGHTS, REMEDIES, AND DISCHARGE

OF BANKRUPT.

433 (4) (Ind.App.) Discharge does not release mechanic's lien created before bankrupt cy proceedings.-New Union Lumber Co. v. Good, 146 N. E. 584.

BANKS AND BANKING.

II. BANKING CORPORATIONS AND

ASSOCIATIONS.

(E) Insolvency and Dissolution.

632 (Mass.) Assets of bank or trust company not to be depleted when in hands of banking commissioner.-Vigilante v. Old South Banking commissioner alone can subject credit of bank in his hands.-Id.

Trust Co., 146 N. E. 670.

III. FUNCTIONS AND DEALINGS. (F) Exchange, Money, Securities, and Investments.

1882 (Mass.) Express company had implied assent of plaintiff to transmit rubles through its correspondent.-Skopetz v. American Express Co., 146 N. E. 262.

Express company held not liable for its cor

II. PETITION, ADJUDICATION, WARRANT, respondent's default, after it became plaintiff's

AND CUSTODY OF PROPERTY.
(C) Involuntary Proceedings.

61 (N.Y.) Solvency no defense to proceedings based on mere act of bankruptcy.-Adams v. Clark, 146 N. E. 642.

III. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF BANKRUPT'S ESTATE.

(B) Assignment, and Title, Rights, and Remedies of Trustee in General. 140(3) (N.Y.) Lien of corporation whose treasurer wrongfully deposited securities with firm of which he was member held not superior, on bankruptcy of firm, to that of owners who had voluntarily deposited securities with firm. Asylum of St. Vincent De Paul v. McGuire, 146 N. E. 632.

154 (Mass.) Defendant could not set off indebtedness from bankrupt in suit by trustee

agent to transmit funds.-Id.

191 (Mass.) Bank held bound by letter of credit, notwithstanding letter to person in whose favor credit was issued.-National Wholesale Grocery Co. v. Mann, 146 N. E. 791.

Seller of sugar held not to have violated contract by collecting on letter of credit before arrival of shipment.-Id.

191 (N.Y.) Bank which transgresses limitations prescribed in letter of credit pays draft at own peril.-Laudisi v. American Exch. Nat. Bank, 146 N. E. 347.

Rule as to construction of letter of credit, stated.-Id.

Bank held warranted in payment of draft under letter of credit on presentation of draft with bill of lading describing merely "grapes." and not particular kind purchased.-Id.

Contract between customer and bank under which bank issues irrevocable letter of credit distinct from customer's contract with his ven

919

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

Bank held warranted in payment of draft under irrevocable letter of credit notwithstand

BILL OF EXCEPTIONS.

ing previous notice from buyer not to pay draft. See Exceptions, Bill of.

-Id.

BILLS AND NOTES.

I. REQUISITES AND VALIDITY.
(E) Consideration.

191 (N.Y.) Bank, which has issued irrevocable letter of credit, required to pay seller's sight drafts accompanied by documents specified in letter of credit, regardless of defect in goods delivered.-Maurice O'Meara Co. v. Na-92(1) (Ind.) Note may be supported by tional Park Bank of New York, 146 N. E. 636. consideration though not received by makers. -Rich v. Fry, 146 N. E. 393. Bank, which objected to payment of draft under letter of credit because of defect in goods, waived objections to sufficiency of documents presented.-Id.

III. MODIFICATION, RENEWAL, AND

RESCISSION.

Objection to dock delivery order accompany-136 (Ind.App.) Payees held not entitled to ing sight draft held not ground for bank's re- repudiate contract to give credit on note.Furman v. Glueck, 146 N. E. 586. fusal to pay draft, under letter of credit.-Id. Documents accompanying draft held sufficient to require bank to pay draft, under letter of credit.-Id.

Rule as to sufficiency of documents accompanying draft, presented for payment under letter of credit, stated.-Id.

Parol modification of letter of credit, under agreement between bank and seller's assignee prior to assignment, held not enforceable against assignee.-Id.

Oral agreement, modifying irrevocable letter of credit, held void for want of consideration. -Id.

Measure of damages, on bank's refusal to pay drafts against irrevocable letter of credit, stated.-Id.

Seller suing bank for refusal to pay drafts

held entitled to summary judgment.-Id.

VI, LOAN, TRUST, AND INVESTMENT
COMPANIES.

315(1) (Mass.) Bill held to allege fraud of
directors and banks on corporation and stock-
holders.-Bonner
Bank of
V. Chapin Nat.
Springfield, 146 N. E. 666.
Stockholders, protesting against bank's mer-
ger, acted with reasonable diligence.-Id.

Comptroller of Currency not necessary party to suit by stockholder to enjoin bank merger. -Id.

V. RIGHTS AND LIABILITIES ON INDORSE-
MENT OR TRANSFER.

(A) Indorsement Before Delivery to or
Transfer by Payee.

256 (Mass.) Failure to take proper steps to take judgment against one indorser did not release subsequent indorser.-Finance Corporation of New England v. Parker, 146 N. E. 696.

Payee could refuse or cease to sue any party. -Id.

Loss of attachment of real estate of prior indorser held not negligent loss of security which subsequent indorser was entitled to have preserved.-Id.

If action against estate of prior indorser was

barred by limitation, it was damnum absque

injuria to subsequent indorser.-Id.

(D) Bona Fide Purchasers.

368 (Mass.) Want of delivery is no defense against holder in due course.-C. B. Ensign & Co. v. Forrest, 146 N. E. 655.

382 (Mass.) That note was stolen not defense against innocent holder.-C. B. Ensign & Co. v. Forrest, 146 N. E. 655.

Instruction that even holder in due course could not recover, if notes were stolen from maker, held error.-Id.

VIII. ACTIONS.

315(2) (Mass.) Directors of trust company occupy position of trust as to stockholders. -Bonner v. Chapin Nat. Bank of Springfield, 477 (Ind.App.) Answer in action on note alleging fraud in its procurement held not 146 N. E. 666. Segregation by directors of part of assets demurrable.-Allen Realty Co. v. Uhler, 146 of trust company held fraudulent and breach N. E. 766. of trust.-Id.

493(1)(Ind.) Promissory note is deemed 315(3) (Mass.) Right of set-off against prima facie to have been executed for a valuclaim of bank in course of liquidation determin- able consideration.-Rich v. Fry, 146 N. E. 393. able as of date when commissioner took possession.-Cosmopolitan Trust Co. v. Wasser-523 (Mass.) Title not shown in absence of evidence of genuineness of signature of payee man, 146 N. E. 772. as indorser.-Canton v. Shaffer, 146 N. E. 770.

Partnership claim against insolvent trust company could not be set-off against note of individual partner.—Id.

Maker of note payable insolvent trust company not entitled to set-off deposit in his name as trustee.-Id.

317 (Mass.) Banking commissioner held, under facts, not to have authorized employment of plaintiff to work for trust company.Vigilante v. Old South Trust Co., 146 N. E. 670.

BOUNDARIES.

1. DESCRIPTION.

8 (III.) Boundary of property devised designated in uncertain manner discarded.-Fuller v. Fuller, 146 N. E. 174.

Line to be boundary between tracts of land must be definitely fixed or there must be means of fixing it.-Id. BRIDGES.

Banking commissioner cannot burden assets of trust company in his hands, with obligation I. ESTABLISHMENT. CONSTRUCTION, AND incurred to resume business.-Id.

MAINTENANCE.

Pending permission to resume, neither officers nor bank could subject its assets to obliga-12 (Mass.) Disallowance of bills of exceptions to commissioners, denials of requests for tion of contract of employment.-Id. rulings and findings in assessing cost and expense of bridge, held proper.-Petition of Town of Weymouth, 146 N. E. 720.

317 (Mass.) Defendant in action on note by insolvent bank not entitled to set-off amount paid it for capital stock because certificate not filed.-Cosmopolitan Trust Co. v. Wasserman, 146 N. E. 772.

Equitable set-off against claim of insolvent bank not permissible when giving priority over

others.-Id.

BENEFICIAL ASSOCIATIONS.

See Insurance, 687.

Decision of commissioners appointed to assess cost and expense of new bridge to districts benefited are binding on all parties.-Id.

Court supervises award of commissioners only to be assured that it is not extravagant

and unreasonable.-Id.

Effort to take exceptions to rulings of commissioners held not in accordance with practice.-Id.

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