TIME, computation of, where papers are to be served or filled, 373.
computation of, where redemption is to be made, 874.
computation of years, 384.
WAGES, assignment of under existing contracts of employment,
WARRANTY, implied from an assignment of a judgment, 48, 49.
WEEKS, computation of, how to be made, 385.
WILLS, construction of residuary clauses in, 782.
YEARS, computation of, how to be made, 884.
ACCORD AND SATISFACTION.
See Partnership, 2.
ACCOUNT.
See Evidence, 2.
1. ACTION - SURVIVORSHIP - TRUSTEESHIP.-A right of
action on a promise for the payment of money to two joint prom-
isees vests on the death of one in the survivor, but the right of
the deceased promisee is not extinguished by his death, and the
survivor holds the security and the proceeds as trustee to the ex-
tent of the interest of the deceased promisee in the fund, and if the
survivor has no interest in the fund, he holds the whole thereof
for the benefit of the estate of the deceased. (Denigan v. San Fran-
cisco Sav. Union, 35.)
2. ACTIONS-JOINDER.-Causes of action for malicious prose-
cution, malicious arrest, and false imprisonment, all sounding in
tort, may be joined in the same action when the plaintiff and de-
fendants in each cause of action are identical. (Page v. Citizens'
Banking Co., 144.)
ADJOURNMENT.
See Executions, 5.
AGENCY TERMINATION BY DEATH.-A contract of
agency for a term of years between an insurance company and its
agent for the payment of certain agreed commissions on premiums
paid on policies procured to be issued by such agent, is terminated
by his death, and his legal representative cannot recover for com-
missions on premiums paid on such policies after the agent's death
and within the period of service contracted for. (Mills v. Union
etc. Ins. Co., 522.)
See Interstate Commerce; Limitation of Actions, 4-7; Municipal Cor-
porations, 6.
'ALIAS EXECUTION.
See Execution, 4.
ALIENATION OF AFFECTIONS.
See Husband and Wife, 4.
See Marriage and Divorce.
See Execution, 1; Judgment, 5.
DOGS-TRESPASSING-RIGHT TO KILL.-The fact that a
dog is trespassing does not justify his wanton or malicious de-
struction, even after his owner has had notice to keep him off the
premises. (Hodges v. Causey, 525.)
DOGS-RECOVERY FOR KILLING-PROOF OF VALUE—
The owner of a dog wrongfully killed may maintain an action
to recover therefor, and is not compelled to prove his market value.
If the dog has no market value, his owner may prove and recover
his special value to him by showing the pedigree, characteristics,
and qualities of the dog, and then proving by witnesses who know
these things their opinion of his value. (Hodges v. Causey, 525.)
1. APPELLATE PRACTICE-FATAL ERROR.-If it appears
to the supreme court that the plaintiff has no cause of action or the
defendant no defense which the law can allow to stand, the court
must act upon the fatal infirmity presented by the record although
no objection was made thereto in the lower court. (Wilson v. Ala-
bama etc. R. R. Co., 543.)
2. APPELLATE PRACTICE.-The judgment of the trial court
sustaining part and overruling part of the exceptions to the report
of a referee based upon conflicting evidence, none of which is pre-
served in the record, is conclusive and cannot be reviewed on ap-
peal. (Utley v. Hill, 569.)
APPELLATE PRACTICE.-ADMISSION OF INCOMPE-
TENT EVIDENCE resulting in no injustice, injury, or preju-
dice is not reversible error. (Railroad v. Wyatt, 926.)
4. APPELLATE PRACTICE-SERVICE UPON FICTITIOUS
DEFENDANTS.-An appeal need not be dismissed for failure of the
appellant to serve notice of appeal upon fictitious defendants, not
served with summons, and who made no appearance in the court
below. (Benson v. Bunting, 81.)
5. APPELLATE PRACTICE.-A CLAIM OF RIGHT, PRIVI-
LEGE, OR IMMUNITY under the constitution of the United States
must be asserted and denied in the trial court, or it cannot be con-
sidered on appeal. (State v. Schuman, 754.)
6. APPEAL-RULINGS AS TO EVIDENCE, WITHOUT EX-
CEPTIONS-REVIEW.-The correctness of rulings of the trial
court, upon matters of evidence, cannot be reviewed on appeal
where no exceptions to them have been preserved. (Ebner v.
Mackey, 280.)
7. APPEAL-AN EXCEPTION TO EVIDENCE is sufficient
when it appears in the statement of the case that objection was
made to the evidence when it was offered, that the objection was
overruled, and that an exception was then entered. (Jordan v.
Greensboro Furnace Co., 644.)
8. APPEAL INCOMPETENT QUESTION.-IT IS HARMLESS
ERROR to permit an incompetent question to be asked a witness,
where the witness answers that he did not know, since the answer
is more favorable to the opposite party than if the question had
been excluded, because it prevents any unfavorable inference.
(Hendricks v. Western Union Tel. Co., 658.)
9. EVIDENCE-HARMLESS ERROR.-If immaterial facts are
stated on direct examination, cross-examination in regard thereto
cannot be prejudicial, and is harmless error. (Capital Lumbering
Co. v. Learned, 792.)
10. JURISDICTION—APPEAL FROM JUSTICE'S JUDgment.
If the superior court, upon appeal from a void justice's judgment,
has tried the case and rendered judgment exceeding in amount
the statutory limit in the justice's court, the supreme court has
jurisdiction of an appeal from that judgment, and such appeal can-
not be dismissed for want of jurisdiction. (De Jarnatt v. Marquez,
90.)
11. APPELLATE PRACTICE DISMISSAL OF APPEAL.-The
fact that the sureties in an undertaking upon appeal have failed
to justify is not ground for dismissing the appeal, nor is the fact
that one of the attorneys of appellant is a surety upon such un-
dertaking ground for such dismissal. (De Jarnatt v. Marquez, 90.)
12. CRIMINAL LAW-APPELLATE PRACTICE-A judgment
of conviction cannot be reversed in the supreme court, for errors
not specifically objected to in the trial court. (James v. State, 527.)
See Instructions; Judgments, 13.
APPRENTICESHIP.
See Infants.
ARREST WITHOUT WARRANT-RIGHT OF DETENTION
-LIMIT UPON.-Statutory authority to arrest a person without
a warrant does not authorize his detention in custody for any longer
time than is reasonably necessary to procure a legal warrant for his
detention. (Leger v. Warren, 738.)
See False Imprisonment; Railroads, &
1. ASSAULT.-FIRING A PISTOL in the direction of another,
within the distance in which it may do execution, with the inten
tion of frightening him, or with the intention of wounding him,
are equally assaults. (State v. Baker, 863.)
2. ASSAULTS ARE ANY UNLAWFUL ATTEMPTS OR OF-
FERS with force and violence to do a corporal hurt to another,
whether from malice or wantonness. The offense may also consist
in putting another in fear of violence. Battery is not a necessary
element of assault. (State v. Baker, 863.)
3. ASSAULT WITH A DANGEROUS WEAPON is committed
whenever such weapon is presented at the person intended to be
assaulted within the distance at which it may do execution. Malice
is implied from the act. (State v. Baker, 863.)
Am. St. Rep., Vol. LXXVIII-63
ASSIGNMENT.-WAGES TO BE EARNED UNDER A SUB-
SISTING CONTRACT may be assigned as against a subsequent
garnishment, but the assignment becomes inoperative when the con-
tract of employment on which it rests ceases. Such assignment is
not revived by a subsequent return to the employment under a new
contract. (O'Keefe v. Allen, 884.)
See Judgments, 1, 2; Landlord and Tenant, 3, 4.
1. ATTACHMENT-MORTGAGE SALE-SURPLUS.-Where a
creditor of a mortgagor, who has attached his equity of redemption,
wishes to protect any interest that he may have in the proceeds re-
maining in the mortgagee's hands upon a foreclosure sale, he should
give due notice to the mortgagee, and the mortgagee is not liable to
him for the proceeds after a foreclosure sale, where, without notice
of such creditor's claim, he pays the surplus to the mortgagor.
(Hardy v. Beverly Sav. Bank, 479.)
2. ATTACHMENT AGAINST NATIONAL BANKS.-No attach-
ment can issue from a state court against a national bank, and
all of the attachment laws of the several states must be read as
if they contained a proviso in express terms that they were not
to apply to suits against national banks. (Dennis v. First Nat.
Bank, 79.)
3. ATTACHMENT-NATIONAL BANKS-POWERS OF CON-
GRESS.-Congress has power to protect national banks and to
regulate their trade and intercourse with others by granting them
special immunities, and protecting them against attachment and
other proceedings in state courts, by which their efficiency may
be impaired. (Dennis v. First Nat. Bank, 79.)
4. ATTACHMENT-BOND-RETURN OF GOODS.-If a bond
given to release an attachment contains a provision that it shall
be void if, at any time after final judgment, the goods, upon re-
quest therefor, shall be returned to the officer taking the bond,
the possession of an execution upon such judgment is not necessary
to enable the officer to demand a return of the property. (Tucker
v. Carr, 893.)
GARNISHMENT OF TRUST FUNDS.-A fund held in trust
for another, in which the trustee has no beneficial interest, cannot
be attached for the debts of such trustee. (Palmer v. Northern etc.
Assn., 503.)
6. GARNISHMENT-FUNDS OF MUTUAL BENEFIT ASSO-
CIATION.-In an action against a mutual benefit association to en-
force a judgment founded upon a claim for a death benefit under a
certificate of membership, the plaintiff cannot attach a fund of the
association set aside for the payment of death benefits, and paid
in by members for that express purpose; the plaintiff's rights as a
beneficial owner of such fund can be determined only by a bill in
equity. (Palmer v. Northern etc. Assn., 503.)
ATTACHMENT-GARNISHMENT.-PROPERTY OUTSIDE
OF THE STATE is not the subject of garnishment. To charge a
garnishee for the property of the defendant, it is absolutely es
sential that, at the time of the service of process, he should have
it in his possession and within the state. (Buckeye Pipe Line Co.
v. Fee, 743.)
ATTACHMENT-GARNISHMENT-POWER ΤΟ ORDER
PROPERTY WITHOUT THE STATE TO BE SURRENDERED.-
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