APPEAL (Continued).

appeal from the judgment, objections to the complaint urged upon a demurrer thereto cannot be considered, after the dismissal of such appeal. (Cook v. Suburban Realty Company, 538.)

15. ACTION FOR DAMAGES TO REAL PROPERTY-PLEADING ADMISSION OF OWNERSHIP-QUALIFIED DENIAL DISALLOWED ON DAY OF TRIALDISCRETION NOT ABUSED.-In an action for damages for injuries to real property, where by the answer of the defendant, he had admitted plaintiff's ownership of the property, and had allowed such admission to stand for nearly a year, and until the day of trial, before attempting to controvert it, a proposed amendment to the answer then offered by denying plaintiff's ownership, on "want of knowledge or information," was not an abuse of discretion for the court to disallow.

(Id.)

16. APPEAL FROM ORDER DENYING NEW TRIAL DISALLOWANCE OF AMENDMENT TO ANSWER NOT REVIEWABLE-O MISSION TO SPECIFY GROUND IN NOTICE OF INTENTION.-The refusal of leave to amend the answer cannot be reviewed upon an appeal from an order denying a new trial, where the notice of intention to move for a new trial fails to set forth that the court abused its discretion by disallowance of the proposed amendment, whereby the complaining party was prevented from having a fair trial. (Id.)

17. UNAUTHENTICATED AFFIDAVITS CHARGING MISCONDUCT OF RESPONDENT. Unauthenticated affidavits charging misconduct of the respondent, cannot be considered upon an appeal from an order denying a new trial, where they are not incorporated in a bill of exceptions, but are merely printed in the transcript following the certificate of the clerk. (Id.)

See Contract, 6-8; Costs; Criminal Law, 1-4, 6, 9, 14, 30-39; False Imprisonment, 8; Negligence, 3; New Trial, 1, 7, 8, 16, 17, 19, 23, 25; Place of Trial, 1; Unlawful Detainer,

ARREST. See False Imprisonment.

ASSAULT. See Criminal Law, 5-8.

ASSIGNMENT. See Bank, 2; Landlord and Tenant, 1; Mortgage, 1-4; Unlawful Detainer, 4, 5.

ATTORNEY AT LAW.

1. ATTORNEY AND CLIENT-COLLECTION BY ATTORNEY-RETENTION IN EXCESS OF VALUE OF SERVICES-CONFLICTING EVIDENCE-SUPPORT OF VERDICT. In an action by a client to recover from his attorney money collected for him, and retained by the attorney for his services in excess of the reasonable value thereof, a verdict for the client upon conflicting evidence as to the matter in controversy, can

ATTORNEY AT LAW (Continued).

not be disturbed as not supported by the evidence. (Black v. Riley, 199.)

2. ACTION FOR MONEY HAD AND RECEIVED.-The action for money had and received by the defendant to the plaintiff's use, may be maintained whenever an equity arises from the circumstances that one has money which he ought to pay to another; and where the testimony of the plaintiff, if true, showed such a case, the action was properly brought to recover money had and received by defendant for the account of plaintiff. (Id.)

3. HOSTILE ATTITUDE OF ATTORNEY AND CLIENT PRESUMPTION OF UNDUE INFLUENCE REQUEST PROPERLY REFUSED · BURDEN OF PROOF-OPEN HOSTILE ATTITUDE.-An instruction in the action for money collected and wrongfully retained by the attorney, that "no presumption of undue influence applies to a transaction where an attorney is in a hostile attitude to his client," was properly refused. Whenever an attorney, for his own benefit, deals with his client, with regard to property that is the subject of his employment, he is in a hostile attitude to his client, and is bound to exercise the utmost good faith toward his client, and the burden is upon him to rebut the presumption of undue influence. It is only when he openly assumes a hostile attitude, that his transactions with his client will be free from such presumption. (Id.)

4. CONTINGENT CONTRACT OF EMPLOYMENT OF ATTORNEY-MODIFICATION OF REQUEST.-A requested instruction that "the contract of employment between an attorney and client need not be in writing, and that an attorney can agree to perform his services on a contingency. And if the client agrees to employ the attorney and pay him . . . said contract will be enforced, unless fraud was used in securing the contract," was not erroneously modified by omitting the last sentence therefrom. (Id.)

BANK.

See Contract, 6–8.

1. CHECK OR ORDER ON BANK-VALUABLE CONSIDERATION-PAYMENT BEFORE OR AFTER DEATH-REFUSAL AFTER DEATH-RECOVERY OF CLAIM AGAINST ESTATE.-Where a check or written order on a bank, duly authenticated by the maker, stated: "You are hereby authorized to pay out of the funds I now have in your bank, for a valuable consideration, which I have received, five hundred dollars to Mrs. Maria Nassano, or her order, prior to my death, if countersigned by me across the back, or on due notification of my death, without such counter signature", and the same was first presented to the bank after the maker's death, and payment thereof was refused, the payee is entitled to recover the amount thereof as a claim against the

BANK (Continued).

estate of the deceased maker. In effect, there was an obligation that the drawer's estate would pay if the bank refused. (Nassano v. Tuolumne County Bank, 603.)

2. EFFECT OF CHECK PAYABLE AFTER DEATH-WANT OF EQUITABLE ASSIGNMENT OF FUND-OBLIGATIONS OF DRAWEE AS INDORSER— NEGOTIABLE BILL OF EXCHANGE-WARRANTY OF PAYMENT.-A check payable before or after death of the drawer, does not operate as an equitable assignment of the funds of the drawer in bank, without being presented for payment. But, being payable after the death of the drawer, upon presentation of the check to the bank upon which it was drawn, the obligations of the drawer are the same as those of the first indorser and other negotiable instruments, viz., that unless the indorsement is qualified, the indorser warrants to every subsequent holder who is not liable to him, that if the instrument is dishonored, the indorser will pay the same with interest. (Id.)

3. DEATH OF DRAWER NOT A REVOCATION OF AUTHORITY OF BANK TO PAY CHECK-VESTED RIGHTS OF CHECK HOLDER.-The death of the drawer of the check could not revoke the authority of the bank to pay the check, which was negotiable, in form, and recites a valuable consideration, which is also presumed to exist. The death of the drawer of an ordinary bill of exchange does not revoke it. There is no principle of law which allows the death of the drawer of a check to affect the rights of a checkholder who has given value for the check, and who has a vested interest therein. (Id.) 4. CHECK NOT AN ATTEMPT AT TESTAMENTARY DISPOSITION-RECOVERABLE OBLIGATION.-The check cannot be regarded as an attempt at a testamentary disposition of property; but it is a valid and binding obligation, upon which the plaintiff may recover. (Id.)

5. DISCOUNT OF NOTE-CREDIT OF PAYEE-PAYMENT PRIOR TO NOTICE OF INFIRMITY-QUESTION AS TO PURCHASE FOR VALUE.-Though the mere passing of the amount of a note by a bank discounting the same, to the credit of the payee, is not a purchase thereof for value; yet if, before notice of an infirmity in the note the discounting bank pays out the amount of the note for which the credit was given, to the depositor or his order, such bank becomes a purchaser for value. (Oppenheimer v. Radke & Co., 518.)

6. EFFECT OF SUBSEQUENT DEPOSITS OR DISCOUNTS ON PURCHASE FOR VALUE-APPLICATION OF PAYMENTS.-The rule of protection of the bank as to a note so purchased without notice of any infirmity therein, is not affected by the fact that the depositor by subsequent deposits or discounts, preserves a constant balance to his credit, since in the absence of special facts demanding a different rule, payments are applied to the oldest debts. (Id.)

BANK (Continued).

7. SUPPORT OF FINDING AS TO CHECKING OUT NOTES BEFORE NOTICE OF INFIRMITY UNCERTAINTY IN EVIDENCE MATTER FOR TRIAL COURT.-It is held that there is sufficient evidence in the record to support the finding of the trial court that the payees checked out the amount of two notes in question discounted by the bank before the bank learned of any infirmity therein; and that any uncertainty appearing in the evidence was matter to be resolved by the trial court, and that the appellate court must accept such reasonable interpretation of the evidence as will support the finding. (Id.) 8. CHECKS-MODE OF SIGNATURE BY PARTNERS-USAGE INTERPRETING CONTRACT DISHONOR OF CHECK-ACTION FOR DAMAGES.-Though partners having an account at a bank, gave thereto both their firm name and their individual names, with the words over the same, "both signatures required"; yet, whatever those words may mean, it appearing to be the general usage of the parties that checks were drawn and honored in their individual names, such general usage shows how the parties interpreted their contract, and it could not be changed by the bank without express notice to the partners before action was brought by them against it for damages for dishonor of a check so drawn. (Reeves v. First National Bank, 508.)

9. WRONGFUL DISHONOR OF CHECK OF BUSINESS MEN-SUBSTANTIAL DAMAGES.-Where it appears that the plaintiffs suing the bank for the wrongful dishonor of their check were established in business, such wrongful dishonor raises the presumption that the drawers have sustained substantial damages, the amount of which it is for the court or jury trying the case to fix, as general compensatory damages, in the absence of any showing of special damages. (Id.) 10. ACTION BY PARTNERS FOR TORT-FILING OF CERTIFICATE SHOWING NAMES NOT REQUIRED.-An action by partners to recover damages against a bank for the dishonor of their check as business men, is one of tort, not growing out of any contract made or transaction had in plaintiffs' partnership name; and does not fall within section 2468 of the Civil Code, forbidding certain actions to be brought until a certificate showing the names of the partners is filed and published. (Id.)

BANKRUPTCY.

1. TRANSFER OF NONEXEMPT PROPERTY TO DEFRAUD CREDITORS.-RECOVERY BY TRUSTEE.-Under section 70 of the Bankruptcy Law, the trustee of the estate of a bankrupt is vested with the title of the bankrupt as to all property not exempt from execution, and may avoid such property transferred by him in fraud of his creditors, which any creditor of said bankrupt might have avoided, and may recover the property so transferred, or its value from the person

BANKRUPTCY (Continued).

to whom it was transferred, unless he was a bona fide holder for value prior to the date of adjudication. (Meyer v. Perkins, 661.) 2. PLEADING SUFFICIENCY OF COMPLAINT BY TRUSTEE-FRAUDULENT TRANSFER-WANT OF IMMEDIATE DELIVERY AND ACTUAL AND CONTINUED CHANGE OF POSSESSION.-A complaint by the trustee in bankruptcy in an action to avoid a fraudulent transfer by the bankrupt which alleges that the bankrupt was at all times insolvent, that the pretended transfer was made to defraud his creditors, and that there was no immediate delivery of the property transferred, and no actual and continued change of possession thereof, and that the effect of said transfer was to prevent the enforcement of the claims of the creditors, states a sufficient case for the exercise of the trustees's authority. (Id.)

3. EVIDENCE - GROUND OF

FRAUDULENT TRANSFER

QUESTION OF CHANGE OF POSSESSION-EXEMPTION FROM EXECUTION-CONSTRUCTION OF CIVIL CODE.-Since under the evidence the only ground upon which the transfer of the property involved could be held to be fraudulent, is that under the terms of section 3440 of the Civil Code, there was the want of an immediate delivery and an actual and continued change of possession, a conclusive presumption of fraud in the transfer would be indulged on that ground, were it not that that section also provides that it shall not apply to property that is exempt from execution, it appearing that such exemption was involved in the issues. (Id.)

4. FINDINGS-FAILURE TO FIND UPON EXEMPTION PLEADED-IMPROPER FINDING AS TO WAIVER OF EXEMPTION PROPERTY SOLD BEFORE BANKRUPTCY.-Where the court did not find upon the issues as to the exemption of the property from execution pleaded in the answer, its finding that the defendant "did not claim any part of said described personal property so transferred to defendant as above set forth to be exempt in his schedule of bankruptcy, or in said bankruptcy proceedings, or at all," and "has waived any and all claim or right to any exemption of said personal property that he might otherwise have been entitled to assert or claim," is not tenable, since before the bankruptcy proceedings were begun, defendant had sold the property, and could not properly claim in his schedule property which he did not then own. (Id.)

5. BURDEN UPON DEFENDANT TO PLEAD EXEMPTION.-EXCEPTION TO GENERAL RULE-CASE DISTINGUISHED.-Since the plaintiff relied upon the general rule as to immediate delivery, and actual and continued change of possession, and the defendant relied upon an exception to the general rule on the question of exemption from execution, it was incumbent on the defendant to set forth in his answer the facts showing such exemption. Barton v. Brown, 68 Cal. 11, [8 Pac. 517] distinguished. (Id.)