amount to an assignment of any part of the debt, and the debt may therefore be thereafter attached or subjected to trustee's process, where the amount of such order is less than the amount due from the debtor to the creditor. Holbrook v. Payne, 456.
4. UNDIVIDED PART OF DEMAND MAY BE SOLD AND TRANSFERRED; and if all the owners of the demand unite in a suit upon it, the fact of the assign- ment of a part constitutes no defense. Where, in an action on a joint claim against two defendants, one only of whom defends, a decision is given in favor of the plaintiff, only one roll is filed, but separate judg- ments are entered against the defendants, that against the one who de- fended being greater than that against the other by the amount of the costs and interest, the judgments cannot be considered as joint, and a release of one of them will not, in the absence of any claim of payment by either of them, affect the right of the judgment creditor against the other. Whittemore v. Judd etc. Oil Co., 708.
5. EQUITABLE ASSIGNMENT WITH Vested Interest, WHAT CONSTITUTES. — A power of attorney executed by a tenant in common of land in process of partition, authorizing his sister to take possession of, lease, or sell anl convey his interest in the land, accompanied by a letter authorizing her to collect the proceeds of the sale of his interest in the land, and to ap- propriate so much thereof as might be necessary to pay a debt of $250 borrowed from her, operates as an equitable assignment of a vested inter- est in so much of the brother's estate as is necessary to pay the indebted- ness named in the letter, and such interest is not divested by the subsequent death of the brother. Estate of Keys, 896.
See NEGOTIABLE Instruments, 13.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
- An assignment for the benefit of creditors, when fully perfected, cannot be set aside at the suit of an attachment or execution creditor by proof of unlawful preferences or of any fraud in the matter of such assignment. Wolf v. Slosson, 613.
2. ASSIGNEE FOR BENEFIT OF CREDITORS BOUND TO EXECUTE ASSIGNMENT UNTIL AVOIDED. - An assignment for the benefit of creditors in due form, being valid as between the parties, and if fraudulent as to cred. itors, only voidable by adjudication, at their election, or that of some one of them, must, until an attack is made with a view to such a judicial determination, be treated as valid, and its directions be executed by the assignee. Knower v. Central Nat. Bank, 700.
3. PAYMENT BY ASSIGNEE FOR BENEFIT OF CREDITORS TO CREDITOR VESTS TITLE IN LATTER, THOUGH ASSIGNMENT SUBSEQUENTLY Avoided. A payment made by an assignee for the benefit of creditors to a creditor of the assignor of the amount of the debt due him, pursuant to the directions in the assignment, before any lien is obtained upon the fund, is effectual to vest in such creditor title to the money so paid, although the assign- ment be, in an action subsequently commenced, adjudged fraudulent and void as against the creditors of the assignor. And the mere fact of knowledge on the part of the creditor so paid of the intent of the debtor to defraud his other creditors does not prejudice his right to seek and obtain payment. Id.
See JUDGMENTS, 11; Partnership, 6.
ATTACHMENT AND GARNISHMENT.
1. UNDERTAKING - LIABILITY OF SURETIES. The undertaking given by defendant in attachment takes the place of the attachment proceed. ing and of the property seized under the writ, and the sureties in the undertaking are bound to the amount thereof, the same as the prop- erty of the defendant or the garnishee would have been bound if no undertaking had been given. Jaynes v. Platt, 810.
2. JUDGMENT CONCLUSIVE AGAINST SURETIES IN UNDERTAKING BOND. — In an action upon an undertaking bond in attachment to recover the amount of a judgment against defendant in attachment, the sureties in the undertaking are bound by such judgment, and, in the absence of fraud, collusion, or clear mistake, cannot question its correctness, or the action of the court at any step in the proceeding up to and in- cluding the rendition of final judgment. Id.
3. JUDGMENT IN ATTACHMENT, PRESUMPTIONS IN FAVOR OF, AS AGAINST SURE- TIES IN UNDERTAKING BOND. - Where, in an action upon an undertak- ing in attachment to recover of the sureties therein the amount of a judgment against the defendant in attachment, it appears that prior to the rendition of such judgment an amended petition was filed and answered, it will be presumed that the court, in passing upon the applica- tion for leave to file the amended petition, ascertained and found that the claim declared upon therein, though stated in different form, was based upon the same facts and transactions as the claim stated in the original petition; and an answer in the action on the undertaking, stating the facts, and alleging non-liability on the ground that the action in which the judgment was rendered was a different action from that in which the undertaking was given, does not present a defense. Id.
4. GARNISHMENT OF WAGES IN FOREIGN STATE. - An attorney who is the holder by assignment of a claim by a creditor against his debtor may garnish the wages due such debtor, in another state than that in which the parties reside, and thus compel payment without becoming liable in damages, although the object of the proceeding is to evade the law of the state where the parties reside, which exempts such wages from garnishment. Harwell v. Sharp, 149.
See ASSIGNMENT FOR BENEFIT OF CREDITORS, 1.
ATTORNEY'S CONTRACT TO DIVIDE FEES, WHETHER AGAINST PUBLIC POLICY. — An agreement between an attorney and counselor at law, and a third person, who is neither, that if the latter will procure the employment of the former by a certain litigant he shall be entitled to one third of such compensation as the attorney may receive from such employment, is contrary to public policy and void, and will not support an action against the attorney to recover part of the compensation by him received. Alpers v. Hunt, 17.
See CARRIERS; HUSBAND AND WIFE, 1; SALES, 1.
1. FORGED CHECKS. — If a bank, in the ordinary course of its business, pays a cheek purporting to be signed by one of its depositors to one
AM. ST. REP., VOL. XXI.-60
who, finding it in circulation or receiving it from the payee by indorse- ment, took it in good faith for value, the money cannot be recovered back on the discovery that the check is a forgery. It is presumed that the bank knows the signatures of its own customers, and therefore is not entitled to the benefit of the rule which, in cases of forgery, permits a party to recover back money paid under a mistake of fact as to the char- acter of the instrument by which a fraud has been effected. First Nat. Bank v. First Nat. Bank, 450.
2. ID. If a bank pays a forged check to one who took it under circumstances of suspicion, without proper precaution, or whose conduct has been such as to mislead the drawee, or induce him to pay the check without the usual security against fraud, it is entitled to recover of him the amount of such payment. Id.
& ID. WHO MUST BEAR LOSS OF PAYMENT OF. - Where a loss which must be borne by one of two parties alike innocent of a forgery can be traced to the neglect or fault of either, it is reasonable that it should be borne by him, even though innocent of any intentional fraud, through whose means it has succeeded. To entitle the holder to retain money obtained by a forgery, he should be able to maintain that the whole responsibility of determining the validity of the signature was placed upon the drawee, and that the vigilance of the drawee was not lessened, and that he was not lulled into false security by any disregard of duty on his own part, or by the failure of any pre- caution which, from his implied assertion in presenting the check as a sufficient voucher, the drawee had a right to believe that he had taken. Id.
4. ID. — If a bank negligently pays a forged check without inquiry as to its genuineness, or of the identity of the person presenting it, and then transmits it to the bank on which it was drawn, and is credited with the amount thereof by the latter, which retains the check for a couple of months, when it ascertains that the check, though pur- porting to be drawn by one of its customers, is a forgery, it may re- cover the amount thereof of the bank which had so transmitted it and received credit therefor. The bank on which the check purported to be drawn had a right to believe that the bank which cashed it had, before doing so, made the usual and proper in estigation regarding its validity. The negligence of the bank on which it was drawn in discovering the forgery will not prevent its recovery, where such negligence has not prejudiced the bank negligently paying the check in the first instance. Id.
5. BANK MAY PAY PROMISSORY NOTE OF ITS DEPOSITOR WHEN. promissory note, negotiable and payable at a bank, is sent to said bank properly indorsed for collection, it has the right to pay the note out of any general funds of the maker on deposit with it, and charge his ac- count with the amount. One who has drawn such a note cannot be heard to say, after his banker has paid a just debt for which he had given a note, to which the maker claims no defense, that the payment was wholly voluntary and unauthorized. In such a case, the banker who has paid the note is entitled to hold it as the equitable owner or pur- chaser, and is entitled to set it off in a suit to recover a balance due the depositor on general account. Bedford Bank v. Acoam, 258.
6. BANK AS HOLDER OF NOTE OF DEPOSITOR DISCHARGE OF INDORSER. - Where a bank is the holder of a note payable at the bank, and upon
its maturity the maker has a cash deposit in bank sufficient to pay it, not specially applicable to a particular purpose, the bank is bound to charge the amount of the note against the deposit. The note is, in effect, a draft on the bank in favor of the holder and in discharge of the in- dorser, notwithstanding a notice by the maker to the bank not to apply the deposit on the note, and an agreement by the bank, before maturity, not to charge the note against the deposit. German Nat. Bank v. Form- man, 908.
7. NOTE IN HANDS OF BANK-RIGHT OF DEPOSITOR. Where a deposi- tor has made a special application or appropriation of his balance in bank, and has so notified it, it cannot charge off his note coming into its hands against his deposit upon maturity of the former. Id. See AGENCY, 3; GIFTS, 2
BILLS OF EXCHANGE.
See NEGOTIABLE INSTRUMENTS, 1–5.
See ATTACHMENT AND GARNISHMENT, 1-3; EVIDENCE, 8; HUSBAND AND WIFE, 13; SURETYSHIP, 3.
BURDEN OF PROOF.
See CRIMINAL LAW, 21; TRIAL, 12; WILLS. 19.
1. CARRIER'S LIABILITY FOR PICTURES AND OTHER ARTICLES. -Section 4281 of the Revised Statutes of the United States, providing that if any shipper of certain articles, among which are included pictures, shall lade the same as freight or baggage on any vessel, without giving notice of their true character and value, and having the same entered on a bill of lading, the master or owner of such vessel shall not be liable as carrier thereof, in any form or manner, does not relieve the vessel or its owners from all liability for a package of portraits contained in a box received by the vessel for transportation, without any notice being given of its character or value. The statute merely relieves the vessel and its owners as com- mon carriers, without abridging their liability as bailees. Wheeler v. Oceanic Steam Nav. Co., 729.
2. EVIDENCE OF NEGLIGENCE. -NON-DELIVERY at port of destination is pre- sumptive evidence of negligence.
3. RIGHT TO EJECT DRUNKEN AND DISORDERLY PASSENGER.
the conduct of an intoxicated passenger, too drunk to take care of himself, is so violent or indecent as to excite alarm, or insult other passengers, or if he interferes with the management of the train by pull- ing the bell-rope, or otherwise, or threatens, with an opened knife, to take the life or do bodily harm to the conductor, or attempts to deter or intimidate him while in the performance of his duties, he has the right to put him off the train at night and between stations, using no more force than is reasonably necessary for the purpose, and putting him off the track out of the way of that train. The company is not then liable if such passenger subsequently goes upon the track, and is run over and killed by another train belonging to it. Louisville etc. R. R. Co. v. Logan, 332.
4 COMPLIANCE WITH CONDITION OF EXCURSION TICKET NECESSARY TO RIGHT TO TRANSPORTATION.-A round-trip excursion ticket, sold by a rail- road at less than the regular rate from one place to another, and conditioned that to be good for return passage it must be signed by the purchaser and stamped and dated by the ticket agent at the latter place, is reasonable and valid. The purchaser of such ticket is not entitled to return passage thereon until he has complied with the con- ditions named therein; and for a failure to so comply, he may be law- fully expelled from the train, without unnecessary force, upon a refusal to pay his fare, without an investigation on the part of the conductor to whom the ticket is presented as to his identity. Edwards v. Lake Shore etc. R'y Co., 527.
5. MONEY IN CLOTHING OF PASSENGER IN SLEEPING-CAR NOT IN CUSTODY OF COMPANY. - Money in the clothing of a passenger in a sleeping-car, worn during the day, and placed under his pillow at night, cannot be considered as in the custody of the railway company, and it will not be liable for the loss of such money without some evidence of negligence on its part. Carpenter v. New York etc. R. R. Co., 644.
6. DUTY OF RAILWAY COMPANY TO PROTECT PASSENGERS IN ITS SLEEPING- CARS. A corporation engaged in running sleeping-coaches with sec- tions separated from the aisle by curtains only is bound to have an employee charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers. While not an insurer, it must exercise diligence to protect its sleeping customers from robbery, and is bound to use a degree of care commensurate with the danger to which they are exposed. Id.
7. CONTRIBUTORY NEGLIGENCE BY RAILROAD PASSENGER. — Knowledge by a railroad passenger that no platform is provided for passengers to enter or leave trains on the north side of the track, while such a platform is provided on the south side of it, is notice of a rule of the company that he should get on and off on the south side, and if, voluntarily disregard- ing this rule, he alights on the north side, in the night-time, and is thereby injured by falling into an unguarded ditch dug by the company, he is guilty of negligence, and cannot recover damages. Drake v. Penn- sylvania R. R. Co., 883.
8. ID.-A passenger impliedly assents to all reasonable rules and regulations of the railway company, and if injury results to him from his volun. tary disregard thereof, he cannot recover damages from the company.
9. ID. EVIDENCE of occasional instances of passengers alighting on the side of the train where there was no platform, without the knowledge or consent of the company, is inadmissible to affect its liability for in- jury to a passenger alighting there, with notice that passengers were prohibited from so alighting, and that there was a platform on the other side. Id.
10. ID.-WAIVER OF REGULATION. - Proof of permission by a railway com- pany, to persons residing north of its road, to cross its right of way and track, in going and returning in different parts of a town, does not show a waiver of its regulations affecting its passengers with notice to alight on the south side, nor permission to them to alight on the north side. Id.
See NEGLIGENCE, 7; TELEGRAPH COMPANIES.
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