complaining thereof, under the evidence in the case, is not ground for
reversal. Ingerman v. Moore, 138.
14. REFUSAL TO CHARGE ON POINT NOT INVOLVED IN EVIDENCE NOT ER-
ROR.It is not error for the court to refuse to charge the jury upon a
point not involved in the evidence. Boyd v. Insurance Co., 676.
See BILLS OF REVIEW; CONTEMPT.
APPORTIONMENT.
See POWERS, 2.
LIABILITY OF OFFICER FOR SEIZING MONEY ON PERSON OF PRISONER.
An officer, by virtue of his authority to arrest, may also search the
prisoner, and seize and remove from his person any money, or any.
thing connected with the offense, or which, in good faith, he has proba.
ble cause to believe to be connected therewith, or which may be used as
evidence on the trial, without being liable in damages for trespass, al-
though it may result that the money or thing was not in fact connected
with the offense, or could not be used as evidence at the trial. Ex parte
Hurn, 23.
ASSAULT WITH INTENT TO RAVISH - EVIDENCE OF CHARACTER IN MITIGA-
TION OF DAMAGES.In trespass to recover damages for an assault with
intent to ravish, evidence that the plaintiff was immodest and obscene
in conduct and language is admissible in mitigation of actual damages.
Parker v. Coture, 750.
ASSESSMENTS.
See DRAINS, 2.
1. PARTIAL ASSIGNMENTS OF DEBT-RIGHT TO REFUSE TO RECOGNIZE, IS
PERSONAL. —The right to refuse to recognize partial assignments of
a debt by a creditor is personal to the debtor, and cannot be claimed
by a third party who sues the creditor and joins the debtor by trustee
process. Burditt v. Porter, 763.
2 ASSIGNMENT of Debt — NOTICE TO SELECTMAN NOTICE TO TOWN. —Notice
of an assignment of a debt against a town need not be given to a ma-
jority of its selectmen. Notice to one of them is notice to all, and to
the town for which they act. Burditt v. Porter, 763.
& ASSIGNMENT OF DEBT - ACCEPTANCE BY DEBTOR-TRUSTEE PROCESS. —
An assigned order upon a town for the payment of its debt need not be
accepted by its selectmen to protect the fund from attachment under
trustee process.
Burditt v. Porter, 763.
See BILLS AND NOTES, 2; CHATtel Mortgages, 2; Fraudulent CONVEY-
ANCES, 1-5; INSURANCE, 21, 22; TRADE-MARKS.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
See TRUSTS, 7.
ASSUMPSIT.
See CARRIERS, 2; MISTAKE.
1. EXEMPTION STATUTES ARE LIBERALLY CONSTRUED in favor of debtors.
2 ATTACHMENT OF MONEY TAKEN FROM PRISONER.
Money taken from
the person of a prisoner at the time of his arrest, by an officer acting in
good faith, under the belief, or reasonable and probable ground for the
belief, that it is connected with the crime charged, or that it may be
useful as evidence at the trial, is subject to attachment or garnishment
while in the officer's hands or in court. If the arrest is not made in
good faith, or if the money is not seized under probable ground for the
belief mentioned, it is not subject to attachment or garnishment; or if
the levy is procured by trickery or fraud on the part of the attaching
creditor, it is invalid, and such creditor, as well as the officer making
the levy with knowledge of the fraud, is liable in damages. Ex parte
Hurn, 23.
2. GARNISHEE CANNOT CONTEST VALIDITY OF JUDGMENT ON WHICH GAR-
NISHMENT IS BASED.-A garnishee cannot contest for mere irregular.
ity the validity of the judgment upon which the garnishment is based.
The judgment debtor alone can question the validity of such judgment,
on the ground that the summons in the action in which it was rendered
was served by a special officer who had been appointed to make the
service without a proper affidavit having been first made. Railway Co.
v. Brooks, 673.
VOID CONDITIONAL JUDGMENT AGAINST GARNISHEE NOT CURED BY SER.
VICE OF SCIRE FACIAS. A conditional judgment rendered against a gar
nishee, without appearance by, or service of written notice upon, him, is
void, and the subsequent issuance and service of a scire facias will not
cure that defect, but the final judgment will also be void, although the
garnishee failed to defend the scire facias. Railway Co. v. Brooks, 678.
See ASSIGNMENT, 3.
ATTORNEYS.
See APPEAL AND ERROR.
SALE OF LAND AT AUCTION INDUCED BY MISREPRESENTATION OF QUAN
If, at an auction sale of a lot of land, one of the auctioneers
states that he has assisted in measuring it, and that it is of certain di-
mensions, which he specifies, one who purchases, relying on such state-
ments, is not bound by his bid, and may recover any payment made by
him, though the sale was made on the premises, and they were inclosed
by visible fences, and the purchaser knew that the property sold did
not extend beyond them. Roberts v. French, 611.
1. BAIL FOR THE APPEARANCE OF AN ACCUSED cannot avoid their liability
for his non-appearance by showing that it was caused by his being in
custody in another state, under a conviction there had against him for
the commission of a felony. Yarbrough v. Commonwealth, 524.
2 COURT, DISCRETION OF. If a statute provides that "if, before judg
ment is entered against the bail, the defendant be surrendered or
arrested, the court may, at its discretion, remit the whole or part of th
sum specified in the bail bond," the discretion of the court in exacting
two thirds of the amount of the bail will not be controlled by the ap-
pellate court, in the absence of evidence that it was flagrantly abused.
Yarbrough v. Commonwealth, 524.
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1. ESTOPPEL BY LACHES - OVERCHARGE IN BANK ACCOUNT. — A bank de-
positor who keeps an open bank account and deposit-book is not estopped
to recover an overcharge in his account by the bank from long lapse of
time in discovering the mistake, when no disadvantage has resulted to
the bank from such delay. Goodell v. Brandon Nat. Bank, 766.
2. OVERCHARGE IN BANK ACCOUNT-WAIVER OF DEMAND. STATUTE OF
LIMITATIONS. An overcharge by a bank against the account of a
depositor who keeps an open account and deposit-book is payable on
demand; but such demand will not be waived, nor will the statute of
limitations begin to run in favor of the bank, until the discovery of the
overcharge by the depositor. Goodell v. Brandon Nat. Bank, 766.
ESTOPPEL. A SAVINGS BANK IS NOT ESTOPPED FROM PROVING THAT
▲ PASS-BOOK ISSUED BY IT WAS PROCURED by depositing with it as
genuine a forged check on another bank, and obtaining credit for the
amount of such check, though the holder of the pass-book has assigned
it, or given an order on the bank for the amount thereof, to an innocent
person, who paid value therefor in good faith. McCaskill v. Connecticut
Sav. Bank, 323.
4. IF A SAVINGS BANK ISSUES A PASS-BOOK WITHOUT RECEIVING ANY CON-
SIDERATION THEREFOR, as where a forged check is deposited with it,
and the amount thereof credited on such book to the depositor of the
check, neither the latter nor his assignee in good faith can recover of
the bank the amount of such credit. McCaskill v. Connecticut Sav.
Bank, 323.
▲ SAVINGS BANKS — ASSENT BY DEPOSITOR TO BY-LAWS. —A depositor, by
receiving and holding a deposit-book as his voucher against the bank,
and continuing his relation of depositor without signing such book, as
required by the by-laws printed therein, of which he has actual knowl
edge, will be deemed to have assented to them as a part of his contract
of deposit. Gifford v. Rutland Sav. Bank, 744.
6. SAVINGS BANKS - BY-LAW - REASONABLE REGULATION. — A bank by-law
providing that the bank will not be liable for loss sustained when a de-
positor has not given notice that his deposit-book has been lost or stolen,
and the deposit is paid in part or in full on presentation of such book, is
a reasonable and proper regulation for the protection of the bank, and
will protect it except where it fails to exercise reasonable care under
facts sufficient to excite the suspicion of a prudent man and put him on
inquiry. Gifford v. Rutland Sav. Bank, 744.
7. SAVINGS BANKS - BY-LAW-NEGLIGENCE IN PAYING DEPOSIT TO THIEF.
- Under a bank by-law assented to by the depositor, providing that
“the institution will not be responsible for loss sustained, when a de-
positor has not given notice of his book being lost or stolen, if such
book be paid in whole or in part on presentment," the bank is not liable
for paying the amount of a deposit to one who has stolen the depositor's
bank-book, presented it to the bank, and accounted for the manner in
which the money was deposited, in a case where the money was de-
posited by letter, and the depositor has never been at the bank, is not
known to its officers, who have never seen his signature, and have no
notice of the loss of the book. Gifford v. Rutland Sav. Bank, 744.
BENEVOLENT SOCIETIES.
See INSURANCE, 27, 35-54.
BILLS OF EXCEPTION.
See APPEAL AND ERROR, 2.
1. NEGOTIABLE INSTRUMENT, WHAT IS NOT. -A SAVINGS BANK PASS-BOOK
is not a negotiable instrument, nor does it become such when accom-
panied by a written order signed by the person to whom it was issued,
directing the bank to pay the amount credited to him therein to another
person. McCaskill v. Connecticut Sav. Bank, 323.
2 ASSIGNMENT OF COMMERCIAL PAPER-DEFENSES.
When the assignee of
commercial paper, secured by mortgage, seeks relief in equity by fore-
closure of the mortgage, the mortgagor may successfully interpose any
defense which would have been available against the original payee or
holder of the paper. This rule, however, has reference only to equities
existing in the original obligor, and not to latent equities against the
assignor residing in third persons. Mullanphy Sav. Bank v. Schott, 401.
See ALTERATION OF INSTRUMENTS, 1; FALSE PRETENSES.
1. CONDITIONS PRECEDENT TO RELIEF. - A person seeking to reverse a
former decree for error of law appearing on its face must have performed
it before filing a bill of review; as, if it be for land, the possession must be
given up; and if for money, it must be paid; or if there are circumstan-
ces bringing him within the exceptions to the general rule, he must show
them to the court, and obtain an order relieving him from performance
before filing the bill. Kuttner v. Haines, 370.
2 BILL OF REVIEW IS NOT SUFFICIENT which only sets out a synopsis of
the former bill or answer, but the bill, answer, replication, and decree
must be set out. These constitute the record for the inspection of the
court. Kultner v. Haines, 370.
& PERFORMANCE OF DECREE AS WAIVER.
- The delivery of the possession
of a house on leased premises, in obedience to a decree, will not operate
as a waiver of homestead rights, or as a release of errors of law, nor will
it deprive the party of the right to contest the validity of the decree by
suing out a bill of review. On the other hand, obedience to the decree
is necessary before the bill can be sued out. Kuttner v. Haines, 370.
Bee BANKS AND BANKING; EXECUTORS AND ADMINISTRATORS,
See MUNICIPAL CORPORATIONS, 11.
REAL ESTATE AGENT, WHEN ENTITLED TO COMMISSIONS. - Where a real
estate agent has introduced to his principal an acceptable purchaser,
willing and financially able to buy on the terms named by the principal,
he is entitled to his commission, even though, through the fault of the
principal, the sale does not actually take place, and when the sale is
actually made the agent is entitled to his commission, even though it
may afterwards transpire that such purchaser was unable to meet
deferred payments as they became due. Wray v. Carpenter, 265,
See ALTERATION of Instruments; CARRIERS, 4; NEGLIGENCE, 18.
Bee BANKS AND BANKING, 5–7.
1. A COMMON CARRIER HAS NO RIGHT TO MAKE UNREASONABLE CHARGES
for his services, and cannot lawfully make unjust discrimination between
his customers. Cook v. Chicago etc. R'y Co., 512.
2. RECOVERY OF PAYMENTS MADE FOR EXCESSIVE CHARGES. —A shipper
is entitled to recover from a common carrier a sum equivalent to the
rebate which it allowed other shippers for whom it performed the same
kind and extent of services, where it had collected full charges from
such shipper without allowing him any rebate, and denied and con-
cealed from him, when making such collection, the fact that it had
allowed any rebate to his competitors in business. Cook v. Chicago etc.
R'y Co., 512.
& EVIDENCE OF UNJUST CHARGES. -The fact that certain customers are
charged less than others for the same services is evidence that the
amount charged the former is unreasonable. Especially is this true
when the lesser charges were maintained for long periods of time, and
their existence concealed by lying and deceit. Cook v. Chicago etc. R'y
Co., 512.
CONNECTING CARRIERS LIABILITY OF LAST CARRIER - BURDEN OF
PROOF AS TO Loss. In an action against the last of a connecting line
of carriers to recover for the loss of goods shipped on a through-bill of
lading, the presumption prevails that the contents of the car delivered
to the last carrier were the same, and the goods in the same condition,
as when started by the first carrier. The burden of proof, in the first
instance, is consequently on the plaintiff to show that the loss occurred
while the car was in transitu, and without this proof he cannot recover.
When this proof is produced, the burden is then on the carrier to show
that the car and its contents were in the same condition when received
by him as they were when started by the first carrier, or when de-
livered to him. Cooper v. Georgia Pacific R'y Co., 59.
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