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120. Where assignments of error in the admis- | sion of evidence are not discussed by appellants they will be treated as abandoned.-Patrick Red Sandstone Co. v. Skoman, (Colo. App.) 29 P. 21 121. Under the requirement that all points relied on must be stated in the briefs of the respective parties, appellant cannot raise the point that the complaint was insufficient, unless he has suggested the question in his brief; and this, notwithstanding the statutory provision that such question may be raised at any time.-Fransioli v. Brue, (Wash.) 29 P. 928.

V. EFFECT OF APPEAL.

Stay of proceedings.

further step in the cause within the time limited for the filing of his brief, the court, on respondent's motion, will dismiss or affirm, or order briefs to be filed and the cause to be heard upon such terms as may be just, respondent's motion to dismiss will be granted, where the transcript is filed only after great delay, and appellant fails to file his brief within 40 days thereafter, and the only excuse for the delay is that counsel was not sure whether the filing of the transcript was sufficient.-Tustin v. McFarland, (Wash.) 29 P.

929.

130. Although Sup. Ct. Rule 12 (28 P. vi.) provides that no alleged error will be considered unless clearly pointed out in appellant's brief, except that "the objection that the complaint does not state facts sufficient to constitute a cause of action" may be taken at any time, a statement that the only error intended to be raised is the insufficiency of the complaint will not excuse failure to file a brief within the prescribed time, since by rule 9, (28 P. vi.,) the brief must be filed before the cause can be placed on the calendar; and respondent's motion to dismiss will be granted, under rule 18, (28 P. vi.,) providing that, when appellant fails to file his brief within time, the court, on respondent's motion, will dismiss or affirm, or order briefs to be filed, and the cause to be heard upon such terms as may be just. P. 929.

122. On appeal from an order appointing an administrator the undertaking provided for by Code Civil Proc. § 941, stays all further proceed ings upon the "order appealed from or the matters embraced therein," such appeal not being within the exceptions mentioned in sections 942945, 949, where appellants are required to perform the directions of the order appealed from; and hence the administrator will be restrained from performing any acts as such, loss to the estate in consequence thereof being avoidable by the ap pointment of a special administrator under sec tion 1411. Pennie v. Superior Court, 26 P. 617, 89 Cal. 31, followed.-In re Wood's Estate, (Cal.) 29-Lacy v. North Olympia Land Co., (Wash.) 29

P. 1108.

Affirmance.

VI. DECISION.

123. Where defendant moves to dismiss plaintiff's appeal on the ground that a transcript of the case has not been filed within the time prescribed by law, and it appears that plaintiff has been duly served with notice of the motion, and has made no effort to perfect the appeal, and has offered no excuse for such failure, the judgment will be affirmed and entered, with costs, and interest at 10 per cent. from its date.-Seattle & M. Ry. Co. v. Joergenson, (Wash.) 29 P. 88. Dismissal.

124. On appeal from a judgment dismissing the action without prejudice, where it is admitted by

counsel that, after the dismissal, another suit was commenced and is pending on the same cause of action, and it appears that the issues between the parties cannot be determined on the appeal, the appeal will be dismissed.-Hoskins v. McGirl, (Mont.) 29 P. 1120.

125. Where the transcript on appeal has not been filed within the time prescribed by the supreme court rules, the appeal will be dismissed. In re Read's Estate, (Cal.) 29 P. 245.

126. A motion to dismiss an appeal, on the ground that the transcript has not been filed within the time prescribed by the supreme court rules, will be denied, where the certificate of the clerk of the trial court on which such motion is based does not conform to supreme court rule 4.-In re Sweet's Estate, (Cal.) 29 P. 249.

127. An appeal perfected September 14, 1891, was dismissed January 12, 1892, on respondent's motion, for failure of appellants to file transcript within 60 days. Appellants, on January 25th, moved to restore the cause on affidavit, showing that the transcript was placed in hands of their attorneys in October, 1891, and that, on account of pressure of business and inadvertence, they failed to file the same in time. Held, that the motion to restore the cause should be denied.Fahey v. Belcher, (Idaho,) 29 P. 112.

128. Though rule 2 of the supreme court requires an appellant to file his bill of exceptions within 40 days after perfecting his appeal, fail. ure to file such bill within more than a year after perfecting an appeal is no ground for dismissal, where appellant has been trying, in good faith, to secure a settlement of her bill of exceptions, and a mandate of the court has issued to compel the settlement thereof. -In re Burton's Estate, (Cal.) 29 P. 224.

129. Under Sup. Ct. Rule 18, (28 P. vi.,) which provides that where the transcript has been filed, but the appellant shall have taken no

131. Sup. Ct. Rule 22 (28 P. vii.) provides that all technical motions tending to prevent the hearing of a cause on the merits shall be stated in respondent's brief, and will be heard at the time the cause is assigned on the calendar, etc. Held, that a motion by respondent to dismiss an appeal does not prevent appellants, after filing the transcript and briefs, moving to dismiss their own appeal.-Tacoma Lumber & Manuf'g Co. v. Wolff, (Wash.) 29 P. 936.

Amendment of decree of appellate

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Modification of judgment.

133. Where an appeal constitutes a trial de novo the appellate court will modify so much of the judgment appealed from as fixes attorneys' fees, and seems to it to be faulty -Boyer v. Boyer, (Wash.) 29 P. 981.

Remand for further proceedings.

134. Where, in a suit to foreclose a mortgage of land, given to secure notes of an association for the purchase money of such land, the complaint in the caption named the association and the individual menibers as defendants, but the decree and pleadings do not clearly show who were the members of the association against whom complainant was entitled to a deficiency judgment when such obligation was incurred, the court will not modify the decree, but remand the cause for further proceedings.-Goodlett v. St. Elmo Investment Co., (Cal.) 29 P. 505; Palmer v. Same, Id. 507.

Mandate and proceedings below.

135. When a judgment has been affirmed, and the cause remanded by the supreme court to the court wherein the judgment was originally rendered, accompanied by a mandate showing such affirmance, the prevailing party is entitled to have execution issue upon such judgment from the court thus reinvested with the custody of the record.-Rockwell v. District Court of Lake County, (Colo. Sup.) 29 P. 454.

Damages-Appeal taken for delay.

136. A motion for damages on the ground that an appeal was taken for delay only, will not be

granted by an appellate court where there is no transcript before it by which to determine whether or not the appeal was taken for such purpose. -Walter v. Maresch, (Wash.) 29 P. 205.

VII. LIABILITIES ON APPEAL Bonds.

Appellee's attorney fee.

Award.

2. Upon the hearing of a motion to make the award of arbitrators a rule of the district court, the court may permit an amendment of plaintiff's written statement of facts so that it will correspond with the award. -Anderson v. Burchett, (Kan.) 29 P. 315.

137. The supersedeas bond, on the removal by writ of error of a cause from the state supreme court to the United States supreme court, conditioned that appellant "shall prosecute his writ to effect, and answer all costs and damages if he shall fail to make good his plea," does not require the payment of appellce's attorney fee, where the writ was dismissed by the federal court for want of jurisdiction. -Kellogg v. Howes,-Anderson v. Burchett, (Kan.) 29 P. 315. (Cal.) 29 P. 230.

Setting aside award.

3. Agreements between counsel with reference to the continuance of a cause which has been submitted to arbitration, not reduced to writing, nor brought to the attention of the arbitrators, are not of themselves suficient grounds to set aside an award if one of the parties, in the absence of the other, proceeded with the bearing.

Action on bond filed too late.

138. An action may be maintained on an appeal bond filed one day too late, where such bond has operated to stay the judgment, and recites that it is given for such purpose, although the appeal is thereafter dismissed for failure to file the bond in time.-Pratt v. Gilbert, (Utah,) 29 P. 965.

Effect.

APPEARANCE.

4. The mere indebtedness of an arbitrator to one of the parties to the controversy submitted, where the indebtedness is small, and it is not thown that it was insecure, or that its payment depended to any extent on the result of the controversy, is not a sufficient reason to set aside an award.-Anderson v. Burchett, (Kan.) 29 P. 315. 5. Irregularities of arbitrators, to whom is submitted a controversy, and who act in good faith, which are not prejudicial to the complaining party, will not avoid an award.-Anderson v. Burchett, (Kan.) 29 P. 315.

ARSON.

What constitutes-First degree.

1. An action brought before a justice under the designation of "forcible detainer," but which was in reality ejectment, the only issue presented being title and the unlawful possession of de1. On a prosecution for arson, under section 49 fendants, and which should therefore have been of the act relating to crimes and punishments, dedismissed for want of jurisdiction, was, on mo- claring it arson in the first degree if a person shall tion of defendants, certified to the district court, set fire to or burn in the nighttime any dwelling apparently on the supposition that it was gov-house in which there shall be at the time some erned by Rev. St. § 3435, providing that, if it human being, where the evidence shows that the shall appear on the trial of any case before a jus- house was burned in the nighttime, and had in it a tice that the title to land is brought in question, the human being, who was burned up with it, it is not cause shall be certified to the district court. De- error to confine the instructions to arson in the fendants then appeared in the district court, and first degree.-State v. Nolan, (Kan.) 23 P. 56S. successfully resisted plaintiff's motion to remand. Punishment-Constitutional law. Held that, by reason of such appearance and proceedings on the part of defendants, the court obtained jurisdiction of their persons, which could not be affected by the fact that, before going to trial, they moved to dismiss for want of jurisdiction; and therefore the district court had Jurisdiction of the action, the subject-matter thereof being within its original jurisdiction.Jenkins v. Jeffrey, (Wyo.) 29 P. 186.

2. A general appearance, and the filing of an answer, after denial of a motion to quash the return upon the summons, constitute a waiver of all irregularities or defects in the issue, service, or return of the process.-Ruby Chief Min. & Mill. Co. v. Gurley, (Colo. Sup.) 29 P. 668.

Application.

For new trial, see New Trial, 1.

Appointment.

Of receivers, see Receivers.

Appropriation.

See States and State Officers, 1.
Of water, see Irrigation, 4-6.

ARBITRATION AND AWARD.

See, also, Compromise.

Qualification of arbitrators.

2. Under the various statutes of the state re

lating to crimes and punishments, criminal pro-
cedure, the penitentiary and jails, taken and con-
strued together, the legislature, in the revision of
the statutes in 1868, in which it is declared that
the punishment for arson in the first degree shall
be "by confinement and hard labor not less than
10 nor more than 21 years," without specifying
where the confinement should be, intended thereby
to provide for the punishment of a person guilty of
arson in the first degree by confinement to bard
labor in the penitentiary of the state, and such a
sentence is not in violation of the United States or
state constitution.-State v. Nolan, (Kan.) 29 P.
568.

ASSAULT AND BATTERY.
Right to costs, see Costs, 1, 2.
Criminal prosecution.

On a prosecution for an attempt to commit an assault with a deadly weapon it appeared that defendant met a traveler in a road, and, pointing a rifle towards him, commanded him to halt, saying to him, "Turn around quick, or will blow your head off;" and, "If you move another step forward, I will blow your head off." It was not shown that the rifle was loaded. Held, that the fact that the rifle was not loaded was s matter of defense, and the court erred in ruling as a matter of law that it was not a deadly weapon.-State v. Herron, (Mont.) 29 P. $19.

Assessment.

1. Where a party to an arbitration, after Of taxes, see Taxation, 6-12.

learning facts which make an arbitrator incompetent, proceeds with the hearing without objec tion, he will be deemed to have waived his objection, and will not be permitted to raise the

ASSIGNMENT.

same after an award has been made.-Anderson See, also, Assignment for Benefit of Creditors. v. Burchett, (Kan.) 29 P. 315.

Of mortgage, see Mortgages, 6.

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3. Where a contractor with a railroad company to construct its road, after becoming financially embarrassed, and unable to complete his contract, agrees with a construction company to transfer to it all his contracts, upon condition that it shall receive all of the stock, moneys, and property agreed to be paid to him by the railroad company, the construction company, if it carries out and completes such contract, has a prior right to all of such stock, moneys, and property as against the contractor, or any persons to whom the contractor has attempted to transfer any stock, when it was not earned or paid for.Sargent v. Kansas Midland R. Co., (Kan.) 29 P. 1063.

Assignment after suit-Right to retain assignor as party.

4. Where one sues a corporation on a contract or other obligation, he has the right to have such corporation retained as defendant, and cannot be deprived of such right by its insolvency, or by any disposition it may make of its property, and on appeal in such action a motion to substitute an assignee of the corporation as defendant will be denied.-Hood v. California Wine Co., (Wash.) 29

P. 768.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

See, also, Insolvency.
By corporation, validity, see Corporations, 26.
Retaining control by assignors.

ing merely E.'s representative, he obtained no greater rights than those possessed by E. at the time of the assignment, and could not recover, the statute concerning assignments conferring no special power on the assignee. BEATTY, C. J., and PATERSON, J., dissenting. Francisco v. Aguirre, (Cal.) 29 P. 495.

Assignment of Errors.

See Appeal, 34–39.

Associations.

See Corporations.

ASSUMPSIT.

Money had and received.

1. A husband and wife conveyed by a quitclaim deed land in which they had a homestead estate to plaintiff, who conveyed his right of title and interest in such land to defendant under an agreement that the latter should protect plaintiff's title, perfect it if necessary, and sell the land for plaintiff. Thereafter defendant procured a grant, bargain, and sale deed of the land to himself from plaintiff's grantors, and then sold the land. In an action to recover the proceeds of the sale in the hands of defendant, plaintiff testified as follows: "He [defendant] agreed to give me one-half. I told him I would give him onehalf what he got." And defendant testified that he agreed to give plaintiff one-half of whatever he recovered under the deed, that plaintiff was to give him the land, and that he was to divide the receipts with plaintiff. Held, that such evidence was sufficient to support a finding that defendant was to pay all costs incurred in the recovery, sale, or disposal of the land.-Faivre v. Daley, (Cal.) 29 P. 256.

2. An action for money had and received does not lie to recover money placed in defendant's hands as an officer of a land pool, and with plaintiff's consent invested in land contracts in trust for plaintiff, though defendant, after the purchase, contrary to plaintiff's wishes, transferred the contracts to a corporation formed of the members of the pool, and refused to issue to plaintiff his proportion of stock in the corporation.— McCreery v. Wells, (Cal.) 29 P. 877. Pleading.

1. An instrument in writing executed by insolvent debtors, whereby they place all their property, consisting of a stock of general mer3. An action by an agent against his principal chandise, in the exclusive possession of a third person, as trustee, and give detailed directions and received, but for money due; and an allegafor commissions is not an action for money had as to how the business shall be conducted in the tion in the complaint in such an action, that the future, and provide for the payment of certain principal has collected the proceeds of sales creditors pro rata, and for the return of the re-made by the agent and has appropriated them to mainder to themselves, heirs, or assigns, is intended to and has the effect to leave the absolute his own use, does not charge a conversion.control of their business in their own hands, and Park v. Mighell, (Wash.) 29 P. 556. is absolutely void, and an application by a judg ment creditor to have the property placed in the hands of a receiver ought to be granted. -Brigham v. Jones, (Kan.) 29 P. 308. Action by assignee-Recovery of property.

2. E., being indebted to sundry persons, executed a bill of sale of certain furniture to defend ant in satisfaction of an existing debt, and at the same time received from defendant a lease of the furniture for a given term, at the expiration of which, E. refusing to deliver possession, defeudant seized the property under claim and delivery. On the morning of the same day, and before seizure, E. executed an assignment of "all her property" to plaintiff for the benefit of creditors, which was filed for record before the seizure, but plaintiff did not attempt to take possession until several days thereafter, when he found the sheriff in possession under defendant's suit, and sued the sheriff and defendant for conversion. Held, that while defendant's title could not be asserted against E.'s creditors, in the absence of an "actual and continued change of possession," as required by Civil Code, § 3440, yet such title being good as against E., and plaintiff be

ATTACHMENT.

See, also, Execution; Garnishment.
Grounds.

1. Mortgaging property in pursuance of an agreement to secure an accommodation indorser of the mortgagor's note is not a fraudulent disposition of property, so as to warrant an attachment.-Godbe Pitts Drug Co. v. Allen, (Utah,) 29 P. 881.

Property subject to.

levied on under an attachment against H., and re-
2. Where plaintiff purchased from H. property
ceived a bill of sale, and placed the same on rec-
ord, he was entitled to the possession of such
property as against another and subsequent at-
taching creditor of H., even though at the time
of such other attachment the property was still
in the hands of the sheriff, and had not been re-
leased from the prior attachments. -Dixon v. Bar-
nett, (Wash.) 29 P. 209.
Affidavit.

3. If an affidavit for an attachment is defective in not stating all the statute requires, or if

it is false, the court has no jurisdiction to issue Compensation
the attachment.-Murphy v. Montandon, (Idaho,)
29 P. 851.

Bonds.

4. Hill's Code, 317, providing that the in-
demnity bond of a defendant in an attachment
proceeding "shall be part of the record, and, if
judgment go against defendant, the same shall
be entered against him and sureties, " authorizes
judgment against the sureties without notice to
them.-Park v. Mighell, (Wash.) 29 P. 556.

5. If an attachment was issued upon a false
or defective affidavit, the obligors on the bond
given to procure the release of the attachment
may, under proper pleadings, prove such fact in
defense of a suit on the bond, brought after a
judgment against the defendant in attachment,
since in such case the court had no jurisdiction
to issue the attachment, and the bond is without
consideration. -Murphy v. Montandon, (Idaho,)

29 P. 851.

6. In a suit on a bond given by the defendant
for release of an attachment, brought after judg.
ment for plaintiff in the attachment suit, the
affidavit in the attachment suit may be intro-
duced in evidence for the purpose of showing
that it was false, so that the court had no juris-
diction to issue an attachment, and that the bond
was therefore without consideration. -Murphy v.
Montandon, (Idaho,) 29 P. 851.

Claims by third persons.

7. Plaintiff claimed certain wheat in his pos-
session which was attached by defendant as sheriff
and sold on an execution of M. against one D.
Plaintiff, having testified that he had received
other security for the money owing by D., was
asked, on cross-examination, if such security was
not of greater value than the money due from D.
Held, that the question was material.-Barnhart
v. Fulkerth, (Cal.) 29 P. 50.

Motion to discharge-Burden of proof.
8. Where defendants deny the grounds alleged
for attachment, and move to discharge the same,
the burden is on plaintiff to prove the charges of
dishonesty and fraud alleged against defendants.
-Champion Mach. Co. v. Updyke, (Kan.) 29 P. 573.

Dissolution.

9. In proceedings to discharge an attachment,
defendant must first negative the cause assigned
for suing out the writ; thereafter the burden is
on plaintiff to show why the attachment should
not be discharged, and he must establish the ex-
istence of facts justifying the issuing of the writ.
-Godbe Pitts Drug Co. v. Allen, (Utah,) 29 P.
881.

ATTORNEY AND CLIENT.

Attorneys' fees allowed, see Divorce, 8; Executors
and Administrators, 20, 21.

Evidence of value of services, see Evidence, 13.
Liability of attorney-Disadvantageous
settlement.

1. A client cannot maintain an action against
her attorney for alleged bad faith in securing for
her a compromise settlement in an action in
which nothing could have been legally recov
ered, where the settlement was the result of
proper negotiations, and was only accepted after
consultation with her father, although at the
time she was a minor.-Phillips v. Rhodes, (Colo.
App.) 29 P. 1011.
Disbarment.

2. Though the supreme court has original
jurisdiction of proceedings to disbar an attorney
for misconduct, it will not do so where the at-
torney's misconduct consisted in alleging in a pe-
tition unnecessary scandalous matter as to the
moral character of another attorney, where there
is an adequate remedy by contempt proceedings
in the court in which the petition was filed. Peo-
ple v. Green, 9 Colo. 506, 13 P 514, distinguished.
-People v. Berry, (Colo. Sup.) 29 P. 901

ment.

Contract of employ-

3. Plaintiff, an attorney at law, agreed to
prosecute certain cases then pending in the dis-
trict court through the courts of the territory,
and, if required, to the supreme court of the
United States, and to prepare briefs for the ar-
gument there. Held, that this contract provid-
ed only for those services which were usual in
the prosecution of cases, and that, where two of
the cases, after being taken to the supreme court,
were there dismissed, whereupon plaintiff pre-
pared petitions for a rehearing therein, and on
the rehearing conducted the proceedings, plain-
tiff was entitled to extra compensation, there
being evidence that both parties regarded the
work as outside the services provided for in the
contract.-Isham v. Parker, (Wash.) 29 P. 835.

4. Where the supreme court of the territory
denied the petitions for rehearing, and thereupon
plaintiff conducted proceedings before the supreme
court of the United States for writs of man-
damus to compel the territorial court to rebear
the cases, such services were not contemplated
by the contract.-Isham v. Parker, (Wash.) 29 P.
535.

5. Where the supreme court of the territory
required plaintiff to prepare an abstract of the
testimony in one of the cases designated in the
contract, plaintiff is entitled to extra compensa.
tion for the clerical work necessary for such
preparation. Isham v. Parker, (Wash.) 29 P. 835.
6. Where the contract of employment stipa-
lated that all plaintiff's necessary expenses in
fendant, plaintiff can recover only the amount of
conducting the business should be paid by de-
his expenses from his place of residence to the
and not his expenses from some other place, where
he was on other business, and from which he was
summoned by defendant to conduct the cases
mentioned in the contract.-Isham v. Parker,
(Wash.) 29 P. S35.

places where defendant's business called him,

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Employment of other attorneys.

8. In an action to recover for services ren-
dered defendant under a contract, it appeared
that other attorneys had been employed by de-
fendant in some of the cases mentioned in the
contract, and he requested the charge that, if
defendant, with plaintiff's consent, employed
other attorneys to bring the mandamus case,
and they did the work, and were paid therefor
by defendant, then plaintiff cannot recover. This
the court refused to give, but gave it modified,
by adding that, if defendant employed plaintif
and other attorneys to do this work, the employ
ment of the others would not necessarily dimin-
ish the amount due plaintiff. Held proper.-
Isham v. Parker, (Wash.) 29 P. 835.

Requisite knowledge and skill.

9. The court properly charged that "an at-
torney at law, 'when he enters into the employ
ment of another as such, undertakes that he pos-
sesses a reasonable amount of skill and knowl-
edge as an attorney, and that he will exercise a
reasonable amount of skill in the course of his
employment; but he is not a guarantor of re-
sults, and is not liable for the loss of such case
or cases, unless such loss occurred by reason of
his failure to possess a reasonable amount of
skill and knowledge, or by reason of his neli
gence or failure to exercise a reasonable amount
of skill and knowledge as an attorney at law."
Isham v. Parker, (Wash.) 29 P. 835.

Contracts between.

10. In an action to recover for services, defend
ant requested the charge that the dealings of an
attorney and client are to be closely scrutinized
to protect the client; that "this jealous care ex-
tends to all *** contracts, (and the burden
of proof is on the attorney in all such cases to
show the validity and fairness of contracts made
and dealings had with his client;)" and that "the
principles of law above stated apply to this case.
The court refused to give this charge, but modi-
fied it by striking out the words in parentheses,
and, as thus modified, gave it.
Held proper.
Isham v. Parker, (Wash.) 29 P. 835.

ATTORNEY GENERAL.

Appointment to fill vacancy.

Under the act creating the office of attor-
ney general, (Sess. Laws 1891, p. 188,) and pro-
viding by section 2 that there shall be elected at
the general election held in June, 1894, and each
fourth year thereafter, an attorney general, who
shall hold his office for four years, and until his
successor is elected and qualified, and the term
of the office shall commence on the same day as
secretary of state, (second Monday, January,
1895;) and by section 5 providing that on the ap-
proval of the act, and at any time when a va-
cancy may occur in the office of attorney general,
the governor shall appoint a person to be attor-
ney general, who shall hold the office "until the
next general election, when his successor shall be
elected and shall qualify as provided for in this
act,

"-the person appointed by the governor to
fill the vacancy will hold only until some one is
elected at the "next general election" (June, 1892)
to hold for the fractional part of the term.
STRAHAN, C. J., dissenting.-State v. Payne,
(Or.) 29 P. 787.

AUCTION AND AUCTIONEER.
Terms of sale-Announcement in cata-
logue.

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4. In an action on a bail bond to secure a fine
plaint that a demand for payment was made on
and costs, it is not necessary to aver in the com-
the sureties.-State v. Biesman, (Mont.) 29 P. 534.
Liability of sureties.

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5. Crim. Prac. Act § 508, provides that, in
cases of conviction before a justice of the peace,
the court shall enter judgment against defend-
ant for fine and costs. Section 510 provides that
defendant may appeal to the district court by
entering into a recognizance, with security to
appear "and pay all judgments for fine and costs
that may be rendered against him in such case.
Section 515 provides that, "if the judgment of the
court shall be affirmed or modified, or if, upon
trial in the district court, the defendant shall
be convicted and any fine assessed, judgment
shall be rendered for such fine and costs, in both
courts, against the defendant and his securities."
Defendant was convicted, and sentenced to pay
a fine in a justice's court, and committed. He
appealed, and was released, on filing a bond,
with sureties, conditioned that, if defendant
"will appear in the said district court on the
trial therein, and pay all judgments for fine and
costs that may be rendered against him in the
district court in such case," then to be void. On
motion of defendant, his appeal was dismissed
by the district court; whereupon the court de-
clared the bond forfeited, and the facts of such
forfeiture were duly entered on the records of
the court. No surrender of defendant was made
by his sureties. Held, in an action on the bond
for the fine levied in the justice's court, that the
sureties were liable; the dismissal of the appeal,
being an affirmation of the justice's judgment,
did not release such sureties. DE WITT, J., dis-
senting.-State v. Biesman, (Mont.) 29 P. 534.

Bailment.

See Banks and Banking; Carriers.

Ballots.

The terms of a public auction sale of land
were announced in advance in a printed cata-
logue, in which a number of different tracts be-
longing to different owners was described, and See Elections and Voters.

at the end of each description were stated the
terms of sale. At the end of the catalogue, after
all the descriptions, was the following: "Title

A

vency.

Bankruptcy.

perfect. Instrument of sale at purchaser's ex- See Assignment for Benefit of Creditors; Insol-
pense. Ten days allowed for search of title.
deposit of ten per centum will be required on the
fall of the hammer," etc. Held, that the portion
of the catalogue quoted applied generally to each
separate tract described therein. -Montgomery
▼. Pacific Coast Land Bureau, (Cal.) 29 P. 640.

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1. Under Organic Act, $ 9, which provides
that writs of error and appeals shall be allowed
in all cases from the final decisions of the dis-
trict courts of the territory, bail pending an ap
peal in a criminal case on the federal side of a
territorial court will be allowed as provided by
the statute of the territory, there being no fed-
eral statute on the subject.-Ex parte Murphy,
(Okl.) 29 P. 659.

Action on recognizance-Defenses.

2 In an action upon a recognizance the fact
that an order of the magistrate directing the re-
lease of the prisoner after the giving of the re-
cognizance does not appear in the record is no de-
fense.-Dilley v. State, (Idaho,) 29 P. 48.

In an action on a recognizance the sureties
cannot attack the jurisdiction of the magistrate

BANKS AND BANKING.
Custom of, see Custom and Usage, 2.
Liability on certificate of deposit issued before in-
corporation, see Corporations, 8, 9.
Collections.

1. In an action against defendant vank to re-
cover the amount of a note, it appeared defend-
ant received the note from the payee for collec-
tion; that the maker was a customer of defend-
ant, and that the next morning defendant's clerk
presented the note for payment; that the maker
wrote across its face, "Please charge the same
to my account:" and that the clerk thereupon
wrote on the back of the note, "Charged ac-
count;" and then stamped thereon the date and
name of defendant. The stamp mark meant
"Canceled." The clerk charged the amount of
the note in the maker's pass book, and also in his
account in defendant's journal. The same day
defendant drew its check in favor of the bank
through which plaintiffs sent the note, and after
business hours mailed the check and a letter of
advice to such bank. At the time the note was
presented for payment the maker was insolvent,
but defendant had no knowledge of that fact.
The afternoon of the same day the maker made
an assignment, and immediately after ascertain-
ing the fact defendant procured the letter from

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