48. Comp. Laws, § 2189, making all aping a new trial.-Kahn v. Traders' Ins. Co.,
peals taken less than 30 days before the next
term of the supreme court returnable to the
next succeeding term, is not affected by Act
Feb. 24, 1887, as amended by Act Jan. 5, 1889,
making it the duty of the clerk, not less than
5 or more than 10 days before the meeting of
the court, to print a calendar of the causes
pending; and a case placed on such calendar,
when appealed less than the statutory 30 days
before the term, will be stricken therefrom on
motion.—Cunningham v. Conklin, (N. M.) 34 P.
43; Conklin v. Čunningham, Id.
Hearing cases out of order-When jus-
tified.

89. Though under Code Civil Proc. & 48
the service of the notice of appeal, and its E-
ing with the bond prescribed, stays the tr
court's proceedings upon the judgment or
der appealed from, the court thereafter retai
76. The verdict of a jury, when supported jurisdiction to settle and certify the stateme
by competent testimony, disposes of all disput-on appeal.-William Mercantile Co. v. Fussi,
ed questions of fact.-Stevens v. Clemmons,
(Mont.) 34 P. 189.
(Kan.) 34 P. 1043.

91. The statute of New Mexico provi
that a writ of error must be sued out within
50. Under Code Civil Proc. § 939, permit- months from date of judgment, and bond
ting an appeal within a year of entry of judg-within 90 days to secure supersedeas, the bud

o be approved by the clerk of the supreme | ings, the motions for judgment, a motion for a
ourt. Bond was filed in the court below with- new trial, and a sufficient statement of the
n the proper time, and was approved by the rulings of the court, the supreme court may di-
udge of that court, but was not indorsed "Ap-rect what judgment the district court should
roved" by the clerk of the supreme court until have rendered in the premises.-Berry v. Kan-
2 days after the rendition of judgment. Held sas City, Ft. S. & M. R. Co., (Kan.) 34 P. 805.
hat, although the correct practice requires that
he bond be filed and approved by the clerk,
nd that writ of supersedeas be issued by
he clerk of supreme court within 90 days,
here was a substantial compliance with the
tatute.-Atchison, T. & S. F. R. Co. v. Mar-
in, (N. M.) 34 P. 536; Martin v. Atchison, T.
& S. F. R. Co., Id.

Excessive judgment-Affirmance on re-
mitting excess.

son of an allowance by the verdict of excess-
98. A judgment will not be reversed by rea-
ive interest, where, at the offer of the suc
cessful party, the excess was remitted.-Duzan
v. Meserve, (Or.) 34 P. 548.
When new trial had.

92. Under Code Civil Proc. § 946, declaring
he effect of perfecting an appeal and giving an
undertaking to stay execution of the judgment
99. Where appeal is taken from the entire
to be not only "to stay all further proceedings judgment, a general reversal and remand re-
in the court below on the judgment or order ap-quire a new trial of all the issues, as if the
pealed from," but to also release from levy case had never been tried.-Mattock v. Gough-
property levied upon under execution issued up ner, (Mont.) 34 P. 36.
on such judgment," it is the duty of the sheriff
to release all property levied on immediately on
notice of the perfection of the appeal and the
filing of the stay bond. without regard to the
sufficiency of the sureties.-Sam Yuen v. Mc-
Mann, (Cal.) 34 P. 80.

93. Under Code Civil Proc. § 945, providing
that, when the judgment appealed from di-
rects the sale of land, execution cannot be
stayed without a bond on the part of appellant
against waste, supersedeas cannot be granted
on the mere bond for costs on appeal, nor on
an application filed after the land has been
actually sold under the judgment.-Hoppe v.
Hoppe, (Cal.) 34 P. 222.

VI. DECISION.

Awarding damages for vexatious ap-
peal.

94. When it appears by the uncontradicted
affidavit of respondent, on an appeal from a
money judgment, that the appeal was taken
merely for delay, and that there was no pre-
tense of any defense, the court, on dismissing
the appeal for failure to file a transcript. will
award respondent damages for appellant's
abuse of the right of appeal.-Duncan v. Grady,
(Cal.) 34 P. 112.

Dismissal.

95. Following a stipulation filed in the su-
preme court that an
appeal might be dis-
missed without prejudice to a new appeal, were
written the words, "So ordered," with the
names of four of the justices subscribed there-
to, and the clerk entered in the minutes, "Ap-
peal dismissed without prejudice," followed by
the names of such justices. Held, that such
appeal was thereby dismissed, and a second
appeal taken on the next day should not be
dismissed on the ground that a prior appeal
was then pending, though the supreme court,
after the second appeal was taken, inadvertent
ly entered an order dismissing the first appeal
absolutely.-Anthony v. Grand, (Cal.) 34 P.

325.

Mandate and proceedings below.

100. In a suit to foreclose a mortgage, when
the decree for plaintiff has been affirmed on ap-
peal, the lower court cannot reopen it, and al-
low defendants to show a partial release of the
mortgage, since, on equity appeals, the supreme
court tries the cause de novo, and its judgment
is final, and can only be reopened by itself.-
State v. Superior Court of Spokane County,
(Wash.) 34 P. 930.

101. When, on petition to sell land of de-
ceased for the payment of debts, notice is given
to persons interested as provided by Code Civil
Proc. 1539, and thereafter an order refusing
such sale is reversed on appeal, and the pro-
ceeding remanded for a new trial, the notice re-
quired by said section need not be again given;
but the court, in the exercise of a sound discre-
tion, may dispose of the petition on such notice
as may be provided by its general rules, or as it
may deem reasonable, provided the parties in-
terested are not deprived of a hearing. In re
Couts' Estate, (Cal.) 34 P. 865.

a

102. Where the supreme court reverses
judgment canceling a deed delivered by mis-
take to one in possession of land under a con-
tract of purchase, and refuses to foreclose the
vendor's lien, or cancel such deed, in case the
vendee fails to pav within a reasonable time,
because the evidence fails to show the time
when certain of the purchase money still un-
paid will become due, the trial court has power

to retain the case and hear evidence to deter-
mine the vendor's claim for a lien, and such

lien should be determined before entry of judg-
ment. Stiles, J.. dissenting.-Spinning v. Drake,
(Wash.) 34 P. 212.

103. A complaint in an action by five lien
claimants to foreclose their liens set out the
claim of each as a separate cause of action,
and asked for interest. There was a judgment
in favor of all the plaintiffs, allowing interest.
On appeal the question of interest was not
raised. The judgment of the supreme court
was that the judgment be set aside, and the
cause remanded, with directions to enter a
new judgment in favor of two of the plaintiffs

For what errors judgment reversed- for the "amounts claimed," with certain allow-
Clerical error.

96. In an action by a wife for permanent
maintenance, an order that defendant pay
plaintiff $50 per month alimony and $50 "to her
attorney," while erroneous in directing such
payment to her attorney, is no ground for re-
versal where it appears that the notice to show
cause why the order should not be made was
"to pay the clerk a certain sum of money, to
be applied by plaintiff as counsel fees," since
the direction to pay the attorney is a clerical
error, and may be modified.-Storke v. Storke,
(Cal.) 34 P. 339.

Rendering such judgment as lower

court should have rendered.

97. Where a case made contains all the
pleadings, the general verdict, the special find-

ances for filing liens, and for costs and attor-
neys' fees, and that, as against the other plain-
tiffs, the complaint be dismissed. Held, that the
judgment of the supreme court authorized in-
ferest.-Fairhaven Land Co. v. Jordan, (Wash.)
34 P. 142.

versing a case for lack of a certain and unam-
104. The supreme court, in its opinion re-
biguous finding on a material question of fact,
added that, if the finding could be construed
that in the court's opinion it was not supported
as in favor of respondent, it was enough to say
by the evidence. Held, that said remark was
clearly obiter, and did not preclude the trial
court from finding for respondent on substan-
tially the same evidence, strengthening its con
clusion by other new findings, based on the
evidence, and probative of the main finding.-
Luco v. De Toro, (Cal.) 34 P. 516.

ties on the supersedeas bond, has jurisdiction to Of statutes, see "Statutes," 1
recall its remittitur, and correct the judgment.
Bell v. Waudby, (Wash.) 34 P. 917, followed.
-Sears v. Seattle Consolidated St. Ry. Co.,
(Wash.) 34 P. 918.

106. When the supreme court has entered
judgment and allowed plaintiff his costs in both
courts against all the defendants as prima facie
parties to the record, the supreme court will va-
cate the judgment as to persons who, though
entitled defendants, have never been served
with process or appeared, and will recall its
remittitur, and correct its judgment accordingly.
-Bell v. Waudby, (Wash.) 34 P. 917.

trespassing when assaulted, plaintiff test.
1. In an action for assault by one who was
that defendant said to him, You get out of
here, or I will pound your head with a har
defendant would have been authorized to be
The jury was instructed that, "before
force to remove plaintiff, *
he sho
have requested plaintiff to depart." Hdd, th
the instruction was misleading, as it gave the
jury to understand that the language used
defendant did not constitute a "request" *2
leave.-Townsend v. Briggs, (Cal.) 34 P. 11

2. Defendant removed plaintiff from b
shop as a trespasser for injuriously handling
machines, and, in an action for the assault, the
jury was instructed that "if
plaintif
at the time of the injury complained of, #38
not trying to injure defendant or his proper
then any force used against plaintiff
was wrongful." Held error, as it was imEs
terial that plaintiff was not handling the m
Admin-chines at the moment the force was used-
Townsend v. Briggs, (Cal.) 34 P. 116.

Assessment.

starting point, and told him to survey from
that. Held, that the court did not err in char-

Of benefits for public improvements, see "Mu- ging that, if they believed plaintiff's testimony,
nicipal Corporations," 37-41.

Assignment.

See "Assignment for Benefit of Creditors."
Of errors, see "Appeal," 23, 24.

Of land contract, see "Vendor and Purchas-
er," 4.

Of note, see "Negotiable Instruments," 10.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

See, also, "Insolvency."

Fraud in making preferences.

1. An assignment by an insolvent merchant,
who has been doing business solely on capital
borrowed from his relatives, who knew of his
insolvency, in which such relatives are pre-
ferred, is fraudulent in fact as to his other
creditors, who were ignorant of the circum-
stances. Webb v. Armistead, 26 F. 70, fol-
lowed.-Smith v. Sipperly, (Utah,) 34 P. 54.
Effect of fraudulent preference.

2. An assignment for the benefit of credit-
ors which contains a preference which is fraud-
ulent in fact, is void in toto. Crawford v. Neal,
12 S. Ct. 759, 144 U. S. 598, followed.-Smith
v. Sipperly, (Utah,) 34 P. 54.

Associations.

See "Corporations."

ASSUMPSIT.

he had a right to rely on defendant's represen-
tations as to the starting point, but, if they did
not believe it, then they must determine wheth-
er the survey was correctly made.-Graves v.
Smith, (Wash.) 34 P. 213.

Assumption of Risks.

See "Master and Servant," 20-26.

Effect of appointing receiver, see "Receivers," 3.
Malicious, see "Malicious Prosecution," 1.
Property subject to, see "Chattel Mortgages," 7.
Pre-emptioner's interest in public lands.
1. Under Rev. St. U. S. § 2263, relating to
pre-emption of public lands, and providing that
"all assignments and transfers of the right here
by secured, prior to the issuing of the patent,
shall be null and void," the interest of a pre-
emptioner, before final entry, is not subject to
attachment, though Gen. St. 1883, § 2676, pro-
vides that the owner of every claim or improve-
ment on land has a transferable interest there-
in, which may be sold on execution or other-
wise.-McMillen v. Leonard, (Colo. Sup.) 34 P.

681.

Levy and lien.

2. Code Civil Proc. § 181, which provides
for the attachment of the property of defendant
"as security for the satisfaction of any judg-
ment that may be recovered in the action, un-
less defendant give good and sufficient security
to secure the payment of said judgment," does

Contract illegal, action for money had and re- not require the writ of attachment to be served
ceived, see "Contracts," 17.
When lies.

1. Where the sheriff collects liquor license
fees, for which he is not entitled to compensa-
tion, and turns a portion thereof over to the
board of education, to whom they belong un-
der the statute, he acts as the agent of such
board in the collection thereof, and is liable in
assumpsit to such board for any money retained
by him as his commission. Board of Education
of Socorro v. Robinson, (N. M.) 34 P. 295.

2. The fact that by mistake the licenses
are issued by the probate clerk, who has no
authority to do so, does not affect the liability
of the sheriff.-Board of Education of Socorro
v. Robinson, (N. M.) 34 P. 295.

on defendant, and an opportunity to be given
him to give a bond or make a deposit of money,
prior to the levy on his property.-Hoffman v.
Imes, (Mont.) 34 P. 728.

He did

3. An officer attempted to levy an attach-
ment on a number of acres of standing corn,
which had ceased to grow, but was not suffi
ciently dry to crib, and caused the same to be
of the levy, but neither authorized the debtor
appraised. He notified the attachment debtor
to hold possession of the corn for him, nor
not post any notice that he claimed possession
placed it in charge of any one else.
minion over the property was exercised by the
under the attempted levy, and no control or do-
officer until about two months later, when he
returned, and posted notice of a proposed sale
of the corn. Held, that the attempted levy was
void as against a mortgagee who filed his mort-
gage for record four days after the attempted
fore final entry, is not subject to attachment,
levy.-Throop v. Maiden, (Kan.) 34 P. 801.
4. As the interest of a pre-emptioner, be-

an attachment levied on such interest does not

3. In an action for services rendered by
plaintiff in surveying land for defendant, it ap-
peared that it was agreed between the parties
that plaintiff should, in payment therefor, take
It also appeared that the land was community
a portion of the land when it was surveyed.
property, of which plaintiff was ignorant, and
that defendant's wife refused to execute a
deed to plaintiff. Held, that plaintiff could re- create a lien thereon by the subsequent final
cover the money value of his services, as spe-entry-McMillen v. Leonard, (Colo. Sup.) 34
cific performance of his contract with defend- P. 681.
ant was not enforceable, because defendant's
wife was not bound thereby.-Graves v. Smith,
(Wash.) 34 P. 213.
Evidence.

4. In an action for services rendered, in
order that a witness may testify as to the value
of such services, their rendition need not be
conclusively shown, but it is sufficient if there
is evidence tending to establish the claim.
St. Louis & S. F. R. Co. v. Kirkpatrick, (Kan.)
34 P. 400.

Instructions.

5. In an action for services rendered as a
surveyor, it was alleged as a defense that the
survey made by plaintiff was not correct.
Plaintiff testified that defendant gave him the

5. Property was attached at the instance
of several creditors, two of whom were con-
tending for priority. Under an order of the
court the attached property was sold, and the
proceeds brought into court, and placed in the
hands of the clerk to await its further order.
After the levies were made, one of the con-
testing creditors, whose levy was first in point
of time, voluntarily dismissed his action, and
began another, in which he sought to garnish
the funds in the hands of the clerk. Prior to
this time, and to the dismissal of the former
action, the debtor assigned all his right and
interest in the funds in the hands of the clerk
to the other contesting creditor. Held that, as
the assignment was made in good faith, it be-
came effective as against the first attaching