GENERAL INDEX то OPINIONS, NOTES AND BRIEFS. (Separate Index to Notes precedes this.) ABANDONMENT. A water right is not abandoned by the execution of a mortgage thereof by the owner in connection with a mortgage upon the land upon which the water is used, although the mortgage is void as to the land because the mortgagor has no title to it. Smith v. Deniff (Mont.) 737 2. An agent may maintain an action in Of Wife; Statute Prohibiting, see CON- his own name against a railroad company STITUTIONAL LAW, 13. to recover damages for breach of a contract his agency was not disclosed and the conto transport goods of his principal, where tract was made with him as the owner of the goods. Carter v. Southern R. Co. (Ga.) ABUSE OF PROCESS. See GARNISHMENT. ACCORD AND SATISFACTION. 1. A mere agreement without consideration, to accept a less sum than the debtor owes, in full satisfaction of the debt, is a nudum pactum, and cannot be enforced. Chicora Fertilizer Co. v. Dunan (Md.) 401 2. An agreement by a creditor to abate a portion of his debt, payable in instalments and secured by collateral which is not to be sold until after the maturity of the last instalment, in consideration of its immediate payment, is valid, and may be specifically enforced by a court of equity. Id. 354 3. Injuries to a person, and injuries to the property of the person injured, both resulting from the same tortious act, are separate items of damages constituting but one cause of action. King v. Chicago, M. & St. P. R. Co. (Minn.) 161 4. A cause of action on a tort or trespass to the person is transitory, and, being personal to complainant, he may bring it in diction of the subject-matter and of the parany court he may select which has juristies. Williams v. Pope Mfg. Co. (La.) 816 NOTES AND BRIEFS. 729 Actions; joint and several. Whether injuries both to person and to property constitute but one, or more than (II.) rule basing cause of action on the one, cause of action:-(I.) Scope of note; injury; (III.) rule basing cause of action on the act causing injury; (IV.) effect of Accord and satisfaction; acceptance of (V.) effect of injury in different capacities, statutes as to joinder of causes of action; or to different parties. NOTES AND BRIEFS. less than entire debt. ACKNOWLEDGMENT. 401 Of Illegitimate Child, see PARENT AND ACTION OR SUIT. Bringing in Name of Church, instead of Trustees, see APPEAL AND ERROR, 11. Refusal to Transfer to Court of Equity, see EQUITY, 2. Right of, under Ordinance Imposing Duties on Street Railways, see MUNICIPAL CORPORATIONS, 6. 1. A mother may bring an action for tort in behalf of her minor child, where the father has deserted his family and has disappeared. Williams v. Pope Mfg. Co. (La.) 816 AGISTER. 161 NOTES AND BRIEFS. APPEAL AND ERROR. Jurisdiction of Probate Court Pending, 1. No bond is necessary on appeal, in a 787 will contest, from the circuit court to the supreme court of Missouri, in order to continue an administration granted during the time of the contest, since the appeal itself, from the very nature and necessity of the case, carries its own supersedeas along with it. State ex rel. Hamilton V. Guinotte (Mo.) Record and case in appellate court. 2. An appeal from a judgment and from an order denying a motion for a new trial will not be dismissed because the order had not been entered when the appeal was taken, but the record will be reviewed as if no motion had been made. McCarthy v. Speed (S. D.) 184 3. A verdict may be supported on any ground which the evidence in the bill of exceptions permits, when the bill shows that it contains all the evidence material to the exceptions in the case. Whitney v. New York, N. H. & H. R. Co. (C. C. App. 1st C.) 615 4. A statement of facts in appellant's brief, which is conceded to be correct, will be so regarded by the court; and an additional statement in appellee's brief, of facts which he considers necessary to a full understanding of the questions raised, will not be considered by the court, under a rule which provides that the statement shall be deemed accurate unless the opposite party points out wherein it is insufficient or inaccurate. Shinglemeyer v. Wright (Mich.) 129 Preliminary motions and dismissal. 5. An appeal from a judgment in an action brought to establish an interest in a mining claim will not be dismissed because, since the appeal was taken, defendants have parted with their interest in the claim to one who has received a patent from the government, if notice of the pendency of the action was filed in the proper county. McCarthy v. Speed (S. D.) 184 6. The failure of an appellant to meet every requirement of the rules touching briefs will be sufficient cause for dismissal of the appeal. Smith v. Deniff (Mont.) 737 Hearing and determination. 7. An assignment of error to the denial of a petition for the removal of a cause to a Federal court will not be considered when no argument is made on it. Calhoun Gold Min. Co. v. Ajax Gold Min. Co. (Colo.) 209 8. Upon an appeal from an order granting plaintiff a new trial for error in giving instructions, the only questions open for review are errors of law, and whether or not there is any basis in the evidence for a verdict in plaintiff's favor. Graney v. St. Louis, I. M. & S. R. Co. (Mo.) 153 9. Refusal of a rehearing is not reviewable on appeal. Cincinnati, N. O. & T. P. R. Co. v. Gray (C. C. App. 6th C.) 47 11. An error, if any, in bringing an action in the corporate name of a church, instead of in the name of its trustees, is immaterial, as the appellate court will direct the substitution of the trustees as plaintiffs. Chicago G. W. R. Co. v. First M. E. Church (C. C. App. 8th C.) 488 12. The credibility of witnesses and the weight of evidence are for the trial court, and the appellate court will not disturb its finding, unless plainly contrary to the preponderance of the evidence. Moore V. Strickling (W. Va.) 279 17. The filing, in a probate court, of a transcript of the proceedings of a circuit court in a will contest, does not give the probate court any jurisdiction to revoke the administration pendente lite, since the attitude of the circuit court toward the probate court is that of an appellate court, and the result of the will contest in the circuit court can reach the probate court only through a certificate from the former to the latter. State ex rel. Hamilton v. Guinotte (Mo.) NOTES AND BRIEFS. Appeal; effect of harmless errors. APPRAISAL. 787 154 In Insurance, see INSURANCE, 12, 13. Provisions for, Not Make Condition Precedent to Action, see INSURANCE, 16. APPROACHES. Not Additional Servitude on Street, see EMINENT DOMAIN, 3. 10. The filing of amended petitions, even at or near the final hearing of the case, is entirely within the discretion of the trial APPROPRIATIONS. court, and not reviewable on appeal. Id. Of Waters, see WATERS. APPURTENANCES. tutional assumption by the legislature of Of Water Right to Nonriparian Land, power properly belonging to the courts. see WATERS, 12. Re Day (Ill.) 519 2. An attorney will not be struck from the roll and suspended from practice of his profession because of a wrongful appropriation to his own use of money belonging to his client, which appears as a single offense in a long professional career, where he had no actual intent to defraud, and not only fully expected to repay the money when demanded, but has in fact made full restitution, and has for eight years thereafter maintained a good character for integrity in private and public stations. Re Lentz (N. J. Sup.) 415 3. A contract by plaintiff in a divorce proceeding to pay to her attorney one third and void as against public policy, and canof all amounts recovered by him is illegal not be specifically enforced by a court of equity in favor of an assignee thereof. Newman v. Freitas (Cal.) 548 NOTES AND Briefs. BAKING POWDER. 519 549 Statute Requiring Label on, see CON- Illegal taxes may be recovered as paid BANKRUPTCY. under compulsion, where the tax collector, after a constructive seizure of personal prop1. The payment of money by an insolvent erty, is attempting to sell it under authority to an unsecured creditor, in the ordinary of law, and the owner, to prevent such sale, course of business, is a transfer of property pays the taxes under written protest of their within the meaning of the bankruptcy act illegality and of his intention to immediate- of 1898, § 60a, providing that a person shall ly bring suit for their recovery, although be deemed to have given a preference, if, bethere has been no actual seizure or detentioning insolvent, he makes a transfer of any of of the property. St. Anthony & D. Elevator his property the effect of which will be to Co. v. Soucie (N. D.) ATTACHMENT. 262 By Owner of Chattel Mortgage as Waiver of Mortgage Lien, see MORTGAGE, 2. NOTES AND BRIEFS. Attachment; waiver of lien by. ATTORNEYS. see enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Re Fixen (C. C. App. 9th C.) 605 2. A policy of insurance upon the life of a bankrupt, though payable to his legal representatives, does not vest in the trustee as assets of the bankrupt's estate, under the 714 bankrupt act of 1898, § 70a, if the policy has no cash surrender value; and a transfer of such a policy by a bankrupt to his wife, within four months of the filing of his peEVI- tition in bankruptcy, will not be set aside as in fraud of creditors. Morris v. Dodd (Ga.) 284 Privileged Communication, DENCE, 17. Enforcement of Contract for Services in Divorce Suit, see SPECIFIC PERFORMANCE, 5. Exception in Favor of Certain Students as to Admission, see STATUTES, 4. 1. A statute overriding the rules of court respecting admission of attorneys, by requiring the admission of any person who began to study law before a specified date, provided he has obtained a diploma from a law school in the state after a specified period of attendance, or passed a satisfactory exami nation before an examining board, after a prescribed course of study,-is an unconsti of a negotiable draft with bill of lading at tached, cannot be recovered back by the drawee on the ground that the payee has received money which it cannot equitably retain because of a breach of warranty made by the drawer to the drawee on the sale of the goods for which the bill of lading was given, since any equities arising therefrom do not affect the payee when he has secured an acceptance or payment. Tolerton & S. Co. v. Anglo-California Bank (Iowa) 777 NOTES AND BRIEFS. Notes; defense to, between original par- ties. Recovery of Payment of Draft to which The purchaser of a draft with bill of lading attached is not liable on a warranty, made by his assignor, of the goods represented by the bill of lading. Tolerton & S. Co. v. Anglo-California Bank (Iowa) NOTES AND BRIEFS. Bills of lading; passing title to goods. BOMBS. See FIREWORKS. BONDS. 777 779 Dismissal of Appeal for Nonconformity to Rules, see APPEAL AND Error, 6. BROKERS. 3. A rule of a street-railway company requiring colored persons to occupy front seats and white passengers the back seats is a reasonable regulation. Bowie v. Birmingham Railway & E. Co. (Ala.) 632 4. One traveling on a train by courtesy of the conductor, without paying fare, is not deprived of the character and rights of a Acting without License; Commissions, passenger by the fact that the conductor, in see CONTRACTS, 9. BUILDINGS. Prohibition of Malicious Construction, see VENDOR AND PURCHASER. Structures intended to spite, injure, or annoy an adjoining proprietor, within the meaning of Ballinger's (Wash.) Anno. Codes & Stat. § 5433 (2 Hill's Anno. Stat. & Codes, § 268), providing that an injunction may be granted to restrain the malicious erection of such a structure or to compel its removal, do not include a structure which really enhances the value, usefulness, or enjoyment of land, but include only such as serve no really useful and reasonable purpose. Karasek v. Peier (Wash.) 345 CABLE ROAD. See STREET RAILWAYS, NOTES CARRIERS. carrying him free, is violating a rule of the company. Louisville & N. R. Co. v. Weaver (Ky.) 381 5. A station agent traveling to his home in another town without paying fare, several hours after his duties for the day have does not, by reason of his employment by ceased, is to be regarded as a passenger, and the carrier as such agent, assume the risk of injury through the negligent operation of the train. Id. 6. An employee of a railroad company riding on a pass, not in the course of his employment or in going to or from his work, but in making a trip for his own convenience, but whose free transportation is given him under a stipulation in his contract of employment, sustains, while so riding, the relation of a passenger, and not of an employee, to the carrier. Whitney v. New York, N. H. & H. R. Co. (C. C. App. 1st C.) 615 7. Failure of a railroad company to discover filth on the steps of a passenger car in AND the night-time, within half an hour after the car had been inspected and found to be in good condition, will not render the company liable to a passenger who is injured by slipping on the step, where the proof does not Action by Shipper's Agent for Breach of Contract, see ACTION OR SUIT, 2. Sale or Gift of Transfer or Ticket, see CONSTITUTIONAL LAW, 25. Measure of Damages for Delay in De- see 1. A carrier of passengers is not a common carrier within the meaning of Ga. Civ. Code, § 2276, providing that common carriers cannot limit their legal liability by notice, but may make an express contract and be governed thereby. Central of Georgia R. Co. v. Lippman (Ga.) 673 2. For injuries to a passenger on a train by the negligent handling of a derrick near the track, which was operated by employees accident. Proud v. Philadelphia & R. Ry. show that due care would have prevented the 408 (N. J. Err. & App.) 8. A carrier of passengers cannot contract against liability for negligence, or to limit its obligation to use extraordinary diligence for the protection of the passenger. Central of Georgia R. Co. v. Lippman (Ga.) 673 9. A passenger on a freight train is entitled to the protection of the rule which prohibits a carrier from contracting against liability for failure to exercise extraordinary diligence to protect the passenger, although the passenger takes the risk of the usual and necessary jolts and jars incident to the running of such train. Id. 10. Conditions indorsed on an employee's pass, to the effect that he assumes all risks arising from the negligence of agents of the carrier, or otherwise, while using it, are invalid on grounds of public policy, where he is riding, not in the course of his employ |