73. A party cannot complain on appeal that
the court proceeded on a wrong theory of the
case, when such theory is contained in his own
instructions.-Snyder v. Snyder, (Ill. Sup.) 31

N. E. 303.

74. In an action on a life insurance policy,
which is defended on the ground that the as-
sured falsely stated that he was in good health
when the policy was issued, the fact that defend
ant, after the court had erroneously excluded
testimony of the assured's physician as to his
health, called the assured's daughter, and sought
but failed to prove by her that the assured's
illness occurred before he represented that he
was in good health, does not prevent defendant
from assigning as error the exclusion of the
physician's testimony, since defendant is not
bound by the testimony of the daughter, who, it
will be assumed, was a hostile witness, and
whom defendant was forced to call because of
the exclusion of the physician's testimony.-Pat-
ten v. United Life & Acc. Ins. Ass'n, (N. Y.
App.) 31 N. E. 342.

75. Where defendant read in evidence without
objection a contract purporting to have been
made by him with one of the corps of engineers
of the United States army, "in behalf of the
United States of America" and approved by the
chief of engineers, U. S. A., authorizing him
to do certain blasting, whereby were occasioned
the injuries for which damages were sought,
and refrained from offering other evidence to
prove his authority from the United States, be-
cause the court, without objection on plaintiff's
part, stated that the authority was not denied,
and that it could not be questioned, because the
contract had been proved, plaintiff could not sub-
sequently insist that the authority was not
shown.-Benner v. Atlantic Dredging Co., (N. Y.
App.) 81 N. E. 328.

76. An agreement on the part of appellees to
allow appellants an extension of time within
which to file their briefs, stating a request that
when the same are filed the case shall be passed
upon in the regular way, and afterwards a sec-
ond agreement for an extension, in which the
right to make any legal objection to the record
and assignment of errors is reserved, does not in-
dicate a voluntary submission of the cause by
agreement; and an objection to defects in the
record or assignment, therefore, is not waived.-
Brown v. Trexler, (Ind. Sup.) 31 N. E. 572.

77. When an appeal, erroneously taken in the
name of the attorney general, instead of the com-
monwealth, is argued on its merits before expira-
tion of the time within which the commonwealth
might have been permitted to appeal, the appeal
may be decided on its merits, although the formal
objection has not been waived. -Boston & A. R.
Co. v. Commonwealth, (Mass.) 31 N. E. 696.

Dismissal.

V. DECISION.

78. An appeal from a judgment in an action
commenced before a mayor, allowing a recovery
of less than $50 as a penalty for violation of a
liquor ordinance, and not involving the validity
of an ordinance, being within the exception in
Rev. St. 1881, § 632, providing for appeals, will
be dismissed, though the question of jurisdic-
tion is not raised by either party.-Ridge v. City
of Crawfordsville, (Ind. App.) 31 N. E. 207.

79. On an appeal from an order of the circuit
court adjudging a person insane, and appointing
a conservator of his estate, a statement in appel-
lee's brief that it is conceded that the circuit court
was not authorized to appoint a conservator does
not amount to a confession of error.-Snyder v.
Snyder, (Ill. Sup.) 31 N. E. 303.

80. Want of merits in the assignments of a
petition in error is no ground for dismissing the
petition.-Edwards v. Griffiths, (Ohio Sup.) 31
N. E. 742.
Reversal.

taken from an interlocutory judgment entered
81. Where an appeal to the general term is
on the report of a referee, and a motion is
judgment, and granting a new trial, is not sub-
made for a new trial, an order reversing the
ject to objection, on the ground that no appeal
lies from an interlocutory judgment on a ref-
such interlocutory judgment, which is author-
eree's report, since granting a new trial, after
ized by Code_Civil Proc. § 1001, sets the judg-
ment aside. Knowlton v. Atkins, (N. Y. App.)
31 N. E. 914.

82. A decree will not be reversed on appeal
because it is erroneous in some of its parts if it
appears that appellees were entitled to some re-
lief; but if appellant desires to question the
decree, he should move to modify it, and reserve
proper exceptions. Thiebaud v. Tait, (Ind.
Sup.) 31 N. E. 1052.

83. Where the record shows that errors in
the trial of a cause did not prejudicially affect
the final result, the judgment will not be re-
versed.-Thiebaud v. Tait, (Ind. Sup.) 31 N. E.

1052.

84. Where a demurrer to a bad paragraph of
a complaint is erroneously overruled, and it does
not affirmatively appear from the record that the
judgment rests on the good paragraphs, a rever-
sal will be granted on appeal.-Terre Haute &
R. Co. v. Sherwood, (Ind. Sup.) 31 N. E.

781.

85. Where the evidence is not in the record
on appeal, a judgment will not be reversed on ac-
count of instructions given by the trial court, if,
on any supposable state of facts relevant to the
issues, the instructions might have been correct.
-Board Com'rs Huntington County v. Huffman,
(Ind. Sup.) 31 N. E. 570.

Modification of judgment.

the decree erroneously required defendant to
86. In an action to set aside a tax deed, where
pay the costs, there being no averment or proof
that complainant made any tender, before filing
the bill, of the amount of purchase money, taxes,
assessments, and interest, a remittitur by the
complainant, on appeal, of all the costs decreed to
him in the court below, together with a motion
that the decree below be in other respects affirmed,
is sufficient, under Rev. St. 1891, c. 110, § 82,
which authorizes the supreme court to allow a
remittitur to cure the error.-Glos v. McKeown,
(Ill. Sup.) 31 N. E. 314.

Mandate and proceedings below.

87. Under Pub. St. c. 153, § 6, which provides
that the trial court, "after verdict or decision by
the court, may report the case for determination
by the supreme judicial court, a report which
states that, after a verdict for the defendant, the
court, "with the assent of both parties, reports
the case for the determination of the supreme
judicial court, both parties agreeing that if, up-
on the evidence, the jury would be warranted in
finding a verdict for the plaintiff, judgment is to
be entered for him," justifies the trial court,
after the supreme court has decided the reported
case in favor of the plaintiff, in rendering judg-
ment for the plaintiff notwithstanding the ver-
dict.-Stone v. St. Louis Stamping Co., (Mass.)
31 N. E. 654.

Law of the case.

88. Where the court of appeals has held that
the evidence in an action raised only a questior
of law, which it decided in favor of plaintiff,

When valid.

1. A contract to make and deliver steel dies
Intended to be used by the person ordering
them in the manufacture of other goods may
be assigned by such person, as his only obliga-
tion is to pay for the dies when delivered, and
that obligation may be discharged by any one.
Rochester Lantern Co. v. Stiles & Parker Press
Co., (N. Y. App.) 31 N. E. 1018.

Rights of assignee.

2. For the manufacturer's breach of a con-
tract to make and deliver steel dies intended to
be used by the person ordering them in the
manufacture of other goods, but who was not
engaged in the business when the contract was
made, an assignee of such person can recover
only the difference between the contract price
of the dies and their cost if procured from some
other manufacturer; and wages paid by such
assignee to workmen who remained idle, and
rents paid for land which remained unused,
in consequence of the nondelivery of the dies,
cannot be recovered. 16 N. Y. S. 781, reversed.
-Rochester Lantern Co. v. Stiles & Parker
Press Co., (N. Y. App.) 31 N. E. 1018.
Equities between original parties en-
forceable against assignee.

8. Where an insolvent corporation buys some
of its own stock, and gives therefor its note se-
cured by an assignment of book accounts, and
the payee indorses the note before maturity to
an innocent purchaser, to whom he also assigns
the accounts, such purchaser takes the note free
from the defense that it was given for an illegal
consideration, but takes the book accounts subject
to such defense.-Commercial Nat. Bank v. Burch,
(Ill. Sup.) 31 N. E. 420; Burch v. Kalamazoo Pa-
per Co., Id.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

See, also, "Fraudulent Conveyances;" "Insol-
vency."

Of bank, what passes, see "Banks and Bank-
ing," 3.

Validity of preferences-Mortgages.

1. An insolvent debtor, in contemplation of
an assignment for the benefit of his creditors,
may prefer one or more of them, provided he
does so in good faith, by a chattel mortgage de-
livered to the mortgagee before the deed of as-
signment is delivered to the probate judge; such
transaction not being within the operation of sec-
tion 6343, Rev. St., which provides that
all as-
signments in trust to a trustee or trustees, made
in contemplation of insolvency, with the intent
to prefer one or more creditors, shall inure to
the equal benefit of all creditors.-Cross v. Car-
stens, (Ohio Sup.) 31 N. E. 506.

Reconveyance by assignee Rights of
assignor.

2. Where the assignees held the assigned
property for more than three months, and took
Lo action with reference to an executory con-
tract made between the assignors and defend-
ant, but gave defendant to understand they
were not going to claim under it, a reconveyance
of the assigned property to the assignors gave
them no right of action on the contract.-Hobbs
V. Columbia Falls Brick Co., (Mass.) 31 N. E.
756.

Jurisdiction of action against assignee.

4. The court of common pleas has jurisdiction
of a suit against a trustee of an insolvent bank
to whom it has assigned its property for the ben
efit of creditors, to recover the amount of a draft
deposited with the bank for collection, and cred-
ited to the owner on the day of its failure and be-
fore the assignment, and before the maturity or
payment of the draft. The action being to re-
cover on the ground that the draft never became
part of the trust estate for administration, the
probate court has not exclusive jurisdiction.
Jones v. Kilbreth, (Ohio Sup.) 81 N. E. 346.
Rights of creditors.

5. A deed of assignment providing that all
debts shall be made up as cash as of the day of
the assignment, and that after payment of such
debts the surplus, if any, shall be turned over to
the assignor, does not allow a creditor who has
acquiesced in the assignment, and been paid the
amount of principal and interest then due on a
note, to recover interest thereafter accruing, al-
though there may have been a surplus to be
turned over to the assignor.-Home Sav. Bank v.
Pierce, (Mass.) 31 N. E. 483.

6. Where a contractor made a general assign-
ment for the benefit of his creditors, before no-
tice to the landowner from material men that
they claimed a lien for materials furnished the
contractor, the contractor's creditors had a superior
claim to the amount due on the contract to that
of the material men.-Kulp v. Chamberlin, (Ind.
App.) 31 N. E. 376.

-

Division

Assignment by partnership
of assets between firm and private
creditors.

7. Under a deed of assignment, which pro-
vides that certain property belonging to the as-
signors individually, and as members of a certain
firm, shall be divided ratably among the individ-
ual and firm creditors, the firm creditors to be
"first" paid out of the firm assets, and the indi-
vidual creditors out of the individual assets, the
surplus of the assets of one class, if any, must
be applied to a deficiency in the other.-Home
Sav. Bank v. Pierce, (Mass.) 31 N. E. 483.

ASSOCIATIONS.

See, also, "Corporations."
Liability of railroad companies composing, see
""Torts."

Transfer of certificates.

1. The certificates issued by the trustees of
the Standard Oil Trust Association to the asso-
ciates recite that the persons to whom they were
issued are entitled to a given number of shares
in the equity of the property held by the trustees,
transferable only on the books of the trustees on
surrender of the certificate, and provide that they
are issued on condition that the holder or any
the agreement creating the trust, and of the by-
transferee shall be subject to all provisions of
laws thereof. By the provisions of the agree-
ment of association the beneficiaries under the
trust are the persons to whom the certificates
were issued, and the transferees thereof. Held,
that one to whom a certificate had been sold and
transferred by indorsement of the seller, with
power of attorney to have it transferred, in ac-
cordance with the regulations of the trust, and
on the conditions of the certificate, was not
obliged as a condition of transfer to show that
there was nothing in the agreement negativing
versed.-Rice v. Rockefeller, (N. Y. App.) 31 N.
9 N. Y. S. 866, re-
the apparent right thereto.

E. 907.

2. The certificates issued by the trustees of
the Standard Oil Trust Association to the asso-
ciates recite that the persons to whom they were
issued are entitled to a given number of shares
in the equity of the property held by the trus-
tees, transferable only on the books of the trus-
tees on surrender of the certificate, and provide

Lien.

6. In an action by an attorney for the value
of his services, defendant, a corporation, put in
evidence the record of the action in which the
alleged services were rendered to show that
plaintiff acted solely as attorney for its presi-
dent, who was a party defendant in that action.
By that record plaintiff's name appeared as at-
torney for the corporation, and he testified that
he was so employed. Held, that the evidence
was sufficient to support a verdict for plaintiff.
-Indianapolis Chair Manuf'g Co. v. Swift, (Ind.
Sup.) 31 N. E. 800.

Attorney General.

Mandamus to, see "Mandamus," 2.

Auction and Auctioneer.
Auctioneer's license, see "Municipal Corpora-
tions," 9.

Award.

See "Arbitration and Award," 6, 7.

BAIL.

Deposit of money in lieu of bail.

1. It is illegal, unless authorized by statute,
for a police officer or magistrate to receive money
in lieu of bail for the appearance of a person ac-
cused of a criminal offense.-Reinhard v. City of
Columbus, (Ohio Sup.) 31 N. E. 35.

Recovery back for illegality of ar-

rest.

2. A police officer arrested a person for an
alleged misdemeanor under a state law without
a warrant, and before any charge had been pre-
ferred against him, and required a deposit of
money in lieu of bail for his appearance before
the mayor. The money was paid into the city
treasury, and afterwards the city paid the same
to the county; but, while it was in the hands of
the city, the person who was arrested demanded
that it pay over the same to him, which the city
refused to do. Held, in an action against the
city by the person arrested to recover the money,
in which the legality of his arrest became a ma-
terial issue, it was incumbent on defendant to
show that such a state of facts existed as justi-
fied the officer in making the arrest without the
previous issue of a warrant, and that he did not
detain the party arrested an unreasonable time
before obtaining a legal warrant. -Reinhard v.
City of Columbus, (Ohio Sup.) 31 N. E. 35.

Bailment.
"Banks and Banking;"
"Pledge."

See

Ballots.

See "Elections and Voters," 1, 2.

Bankruptcy.

"Carriers;"

See "Assignment for Benefit of Creditors;"
"Fraudulent Conveyances;" "Insolvency."

BANKS AND BANKING.

Liability on draft, see "Attachment," 1.

-

Mutual Acc. Ass'n of the
Northwest v. Jacobs, (Ill. Sup.) 31 N. E. 414.
Collections.

2. A bank which has received a graft for col-
lection cannot, by crediting the amount thereof
to the owner on the day of its (the bank's) fail-
ure, and before the maturity and payment of the
draft, place him in the position of a general
creditor, upon the bank's making an assignment
for the benefit of its creditors, so as to entitle
him only to dividends out of the assets in the
trustee's hands; but the relation between the
owner of the draft and the bank being that of
principal and agent, the owner of the draft may
recover the proceeds, on its being paid, from the
trustee. Jones v. Kilbreth, (Ohio Sup.) 31 N.

-

E. 346.
Insolvency.

3. Money deposited with a private banker to
secure him from liability on a bond, and mingled
by him with the other funds of the bank, with
the knowledge of the depositor, passes to the
banker's assignee, under a general assignment.-
Mutual Acc. Ass'n of the Northwest v. Jacobs,
(Ill. Sup.) 31 N. E. 414.

Savings banks.

4. Laws 1882, c. 409, § 278, (2 Rev. St., 8th
Ed., p. 1573,) declaring that when suit is
brought against a savings institution, alleging its
insolvency and demanding its dissolution, the
court may grant such relief and render such judg-
ment as the interests of the parties seem to re-
quire, allows the court to scale down deposits
and authorize the resumption of business, where
the effect of this will be to allow the institution
to continue on a solvent basis.-People v. Ulster
County Sav. Inst., (N. Y. App.) 31 Ñ. E. 738; In
re Mitchell, Id.

National banks-Insolvency.

5. Rev. St. U. S. § 5242, by providing that
no national bank, when insolvent, or in contem-
plation of insolvency, shall so dispose of its as-
sets as to prevent their proper application to
the redemption of its circulating notes, and the
creditors, does not prohibit the allowance of
ratable distribution of the remainder among its
any valid set-off, legal or equitable, which a
debtor of the bank has against any obligation
owing by him to it at the time of its insolvency,
the allowance of such set-off not being the crea-
tion of a preference.-Armstrong v. Warner,
(Ohio Sup.) 31 N. E. 877.

ance.

6. A national bank received on deposit a
check drawn by plaintiff on another bank, and
carried the amount to the credit of his agent,
upon the agreement that he would take for
part of the sum a draft drawn on another bank,
and would not immediately check out the bal-
Before the draft was presented the
drawer bank, which was insolvent, passed into
the hands of a receiver, without having pro-
vided any funds with which to pay it.
The
check, payment of which had been stopped,
came to the possession of the receiver, and the
draft belonged to plaintiff. Held, that plaintiff
was entitled in equity to have the amount of
the draft set off against his liability on the
check.-Armstrong v. Warner, (Ohio Sup.) 31
N. E. 877.

7. An insolvent national bank held a draft
which it had discounted for, and carried the
proceeds to the credit of, the drawer, for whose
accommodation it had been accepted by plain-
tiff. The draft was protested for nonpayment,
and the liability of the drawer made absolute.
Plaintiff was the drawer's surety only. When
the bank passed into the control of a receiver,
the drawer, who afterwards became insolvent,

General or special deposit.

1. Money deposited with a private banker to
secure him from liability on a bond, though evi-
denced by a certificate of deposit stating the ob-
ject for which it is made, is a general, and not a

count with the bank a sum less than the amount
of the draft. Held, that plaintiff, as surety,
was entitled in equity to have set off against
his liability as acceptor of the draft the amount
due his principal on the deposit account with
the bank-Armstrong v. Warner, (Ohio Sup.)
31 N. E. 877.