preme court. Russell v. Rosenbaum, | ruling will not be disturbed on appeal, as (Neb.) 287. the discretion of the trial court does not appear to have been abused.-Smith v. Champagne, (Wis.) 398.

14. Under the rules of the Iowa supreme court relative to abstracts on appeal, an abstract which is a mere copy of the transcript in respect to the pleadings and written evidence, and which sets out in full notes, deeds, etc., will be stricken from the files, and a limited time given to file a new one; the substance only of what is material to the case in deeds and mortgages should be set out.-Leekell v. Norman, (Iowa,) 726. 15. Laws Dak. 1887, c. 21, § 2, providing that the verdict, decisions, or orders finally determining the rights of the parties. or overruling or sustaining amendments to pleadings, etc., shall be deemed excepted to, was enacted for parties who by inadvertence, or absence when the decision or order was made, failed to take exceptions, and does not apply to parties not coming within these provisions. - Bostwick v. Knight, (Dak.) 344.

16. On appeal from the judgment of a justice of the peace to the district court, Civil Code Neb. § 1011, requires that appellant deliver a transcript of the proceedings to the clerk of the district court within 30 days next following the rendition of the judg ment, and, if the transcript is not filed within the time, the district court may dismiss the appeal at appellant's costs, and remand the cause to the justice of the peace. -Converse Cattle Co. v. Campbell, (Neb.)

594.

Review-Objections not raised be

low.

17. An order directing defendants to deliver a note, sought to be recovered by the receiver of defendants' company, to the clerk will not be disturbed; the objection to the clerk as custodian being made for the first time on appeal, while the objections below were as to the right to demand surrender of the note. Brandt v. Allen, (Iowa,) 82.

18. Error in admitting evidence, and charging on an alleged element of damage, not only submitted by defendant's attorney on the trial, but made the subject of several requests to charge, cannot be availed of on appeal.-Redmond v. St. Paul, M. & M. Ry Co., (Minn.) 64.*

19. The omission of the lower court to make a proper finding, which it was not asked to make, constitutes no ground for reversing the judgment.-Williams v. Stevens' Point Lumber Co., (Wis.) 154.

Discretion of trial court.

20. Where a motion for new trial is made on different grounds, and granted without assigning a reason, and the evidence is conflicting, and some showing in support of the motion on the ground of surprise and newly-discovered evidence is made, the

Presumptions.

21. After a cause had been reversed on appeal, defendant's motion that it be remanded, with leave for him to introduce additional evidence, was refused. On the trial in the district court, he moved to introduce the same evidence on substantially the same grounds as stated in the motion Held, that a judgment for plaintiff would in the supreme court, which was granted. not be set aside, as it would be presumed that the district court refused to consider the additional evidence for the same reasons that the supreme court refused to remand with leave to introduce it.-Garmoe v. Windle, (Iowa,) 824.

22. Where the court below finds a fact not pleaded, it will be presumed on appeal, if the record does not show the contrary. that the parties waived the objection to tleson, (Minn.) 265. the want of pleading.-Salisbury v. Bar

Weight and sufficiency of evidence.

23. Where the trial court refuses to set aside the verdict as excessive, it will not be set aside on appeal, unless it clearly appears from the evidence that the jury were actuated by passion or prejudice.-Stutz v. Chicago & N. W. Ry. Co., (Wis.) 653.

24. A finding of fact, where the evidence is conflicting, and credibility of witnesses is involved, will not be disturbed on appeal, unless there is a clear preponderance of evidence against it.-McDonald v. Miller, (Wis.) 665.

25. Where none of the evidence produced on the trial is preserved in the record, and no error affirmatively appears, the judgment will be affirmed.-Welborn v. Eskey, (Neb.) 959.

26. Where the evidence is conflicting, the refusal of the trial court to grant a new trial will not be disturbed.-McGrath v. Village of Bloomer, (Wis.) 585.

Rulings on evidence.

27. Refusal to allow a witness to answer a question, calling for statements and declarations made by another, will not be reviewed when the record does not show the substance of the declarations, so that the question of competency can be determined. -Bener v. Edgington, (Iowa,) 117.

28. The assignment in a motion for a new trial, that the verdict was not sustained by evidence, cannot be considered by the supreme court in proceedings in error, unless the evidence is before the court by a proper bill of exceptions.-Schroeder v. Rinehard, (Neb.) 593.

Review - Matters not apparent of

record.

29. An exception to a referee's report, which quotes several pages of the report, including schedules containing a great number of items, without specifying the particular charges objected to, is so vague and general that the appellate court will not thereon review the evidence upon which the report is based.-Carroll v. Little, (Wis.) 582.

30. Where the testimony as to the matters in dispute is not so full and accurate in the printed case but that resort must be had to the manuscript bill of exceptions to ascertain the facts as to items allowed or rejected by the referee's report, the alleged errors in the report will not be reviewed. -Id.

31. The refusal of the trial court to submit certain questions to the jury, and to give certain instructions, which are not incorporated in the bill of exceptions, cannot be reviewed. Filing the questions and instructions with the clerk is not sufficient to make them part of the record.-Koenigs v. Jung. (Wis.) 801.

37. A judgment dismissing an action on the merits instead of abating it is harmless, where another action would be barred by

the statute of limitations.-Id.

38. While plaintiff should have recovered nominal damages, but no more, without costs, a verdict for defendants will not be set aside for that error.-Mears v. Cornwall, (Mich.) 931.

Objections waived.

39. Error assigned upon instructions to a jury cannot be considered by the supreme court, unless properly excepted to at the time they were given.-Schroeder v. Rinehard, (Neb.) 593.

32. Where a cause is tried before a jus-rected land in Michigan and Kansas to be tice, and on appeal in the district court, sold, the proceeds to be invested in land in without objection to the jurisdiction, and Missouri for a certain time and for certain the want of jurisdiction does not appear on purposes. On a former appeal it was held the face of the papers, the objection will that such equitable conversion might be not be considered in the supreme court.-effected, unless the will was opposed to the McClure v. Campbell, (Neb.) 595. policy of the Missouri law, though it vio33. Whether instructions asked and re-lated the Wisconsin statute respecting refused are erroneous cannot be considered where no transcript of the evidence has been filed.-State v. Danials, (Iowa,) 109.

Harmless error.

straint on alienation. Held, that a judgment that the language used worked an equitable conversion, but that its legality depended on the Missouri law, was not repugnant to the opinion on the former appeal.-Ford v. Ford, (Wis.) 502.

APPEARANCE.

34. In an action against a railroad company for personal injuries, plaintiff, having testified that he owned a flouring-mill, was allowed to be asked, on cross-examination, what amount of mechanics' liens were on the mill. The verdict was for defend- Effect, see Arbitration and Award, 3. ant. Held that, though the question was improper, it did not prejudice plaintiff, the jury having found that defendant was not negligent. Beery v. Chicago & N. W. Ry. Co., (Wis.) 687.

35. Where a substantial recovery of damages is had on one cause of action, and a nominal recovery on another cause of action in the same case, the judgment will not be reversed for error in the latter recovery, the question of costs not being dependent thereon.-Middleton v. Jerdee, (Wis.) 629.

36. A judgment dismissing on the merits an action on 68 town orders for $2,000, on all of which except one an action is barred, will not be reversed, where that one is for $15 only, and no special point as to it is made in the argument.-Schriber v. Town of Richmond, (Wis.) 644.

Effect.

An appearance in court after the rendition of a judgment which is void for want of jurisdiction is not effectual to render that judgment valid.-Godfrey v. Valentine, (Minn.) 163.

ARBITRATION AND
AWARD.

Submission.

1. Where parties to a controversy execute an agreement to submit it to arbitration, and it is clear that it was intended to be a statutory arbitration, but it is invalid as such, it cannot have effect as a commonlaw submission. - Holdridge v. Stowell, (Minn.) 259.

Procedure.

2. Although an agreement to arbitrate provides that the decision of two of the three arbitrators shall be binding, yet all three must be present at every stage of the hearing, or the award of two will not be binding.-Kent v. French, (Iowa,) 713. Hearing.

3. Where a party appears before arbitrators, and files a protest against their jurisdiction, on the ground of the absence of one of them, he does not waive his right to set up this objection to the award by the fact that he subsequently participates in the hearing.-Id.

Architects and Builders. Performance of contract, see Contracts, 7.

Argument of Counsel.

See Criminal Law, 9, 10.

ASSAULT AND BATTERY. Assault with intent to kill, see Homicide, 8. Indictment.

absolute assignment as security for a debt. and to secure future advances, the pur chaser remaining in possession. The assignees insured a building on the lot in their own names, and the building being burned, collected the insurance, which satisfied their claims. The purchaser thereupon sued the assignee to have the assignment While this action was pending the purdeclared a security, and for an account. chaser, being in possession, sold and conveyed the lot to a third person, who took possession. The purchaser and assignee thereupon settled the suit, and stipulated that the same should be dismissed. Held that, the purchaser, having parted with all his interest in said lot, could not fraudulently release any interest of his vendee therein.-Lipp v. South Omaha Land Syndicate, (Neb.) 129.

ASSIGNMENT FOR BENEFIT
OF CREDITORS.

Validity.

1. An attachment creditor, who presents his claim to his debtor's assignee for settlement, waives all objections to the regu

Reservation.

1. Under Code Iowa, § 4305, subd. 6, pro-larity of the assignment, no actual fraud viding that an indictment is sufficient if, being charged. - Littlejohn v. Turner, when material, the name of the person in (Wis.) 621. jured, or attempted to be injured, is set forth, when known to the grand jury, etc., an indictment stating that defendants did, 'upon one W. H. S. Brown, make an assault, with intent then and there willfully, maliciously, unlawfully, and feloniously to inflict a great bodily injury," sufficiently states the person intended to be injured by the assault.-State v. Shinner, (Iowa,) 144. 2. An indictment for assault with a weapon or thing likely to do grievous bodily harm, under Pen. Code Minn. § 187, subd. 4, describing the instrument as "a weapon, to-wit, a knife," "the said knife being then and there a weapon and instrument likely to produce grievous bodily harm," is sufficient.-State v. Henn, (Minn.) 572. Evidence.

3. Threats, made a few hours before the alleged assault, to commit it, may be proved.-Id.*

Assessment.

Of taxes, see Taxation, 4-7.

2. A reservation by the assignors of certain specified property which they claim as their exemptions, and by one of them of a homestead right, does not invalidate the assignment, especially where property to the amount excepted had been set apart to individual members long before the assignment, and the assignment expressly conveyed all property not exempt. If more was retained than allowed by the statutes, the excess could be recovered by the assignee, under direction of the court.-Severson v. Porter, (Wis.) 577. Fraud.

3. Evidence, on the examination of an insolvent assignor, that he had become insolvent within a few months while still carrying on business, and disposing of large quantities of goods; that he had discontinued to do his business through a bank; that his property had shrunk to an extent unaccounted for; that he had paid sums of money to persons whom he cannot name,

Street assessment, see Municipal Corpora- which sums he declares they had deposited tions, 13.

ASSIGNMENT.

Of judgment, see Judgment, 20, 21.
Rights of parties.

The purchaser of a lot, who received a contract therefor, assigned the same by an

with him; that his books and papers had all disappeared; and that he refused, on advice of counsel, to allow a statement to be taken of his bank account, is sufficient to warrant a finding of fraudulent concealment.-Rees v. Lowenstein, (Minn.) 370.

4. A father, in 1869, treating all his personal property as firm property, entered into partnership with a son to carry on a

general business of farming and raising tobacco, which they conducted until 1879, when another son was taken into the firm, becoming joint owner of all the property, and equally liable for debts of the old firm. It was understood between them that all debts, whether contracted in the name of one, two, or all the partners, should bind the firm, and notes were sometimes signed by one, and sometimes by two, or all the members. Held, that an assignment by them, treating all their property as firm property, and all debts as firm debts, was not fraudulent as to creditors, though some of the creditors did not know of the copartnership. Severson v. Porter, (Wis.) 577.

5. Under How. St. Mich. § 8744, relating to voluntary assignments for the benefit of creditors, and providing that, in case of fraud in the assignment, a bill in chancery may be filed, etc., a bill which alleges that the assignee advised a fraudulent mortgage of the assignor's property may be maintained to set it aside, and prevent its payment, without previously obtaining an order of court requiring the assignee to institute the proceedings.-Burnham v. Haskins, (Mich.) 327.

Rights of debtors.

When lies.

ASSUMPSIT.

Where the manufacture of lumber is the material stipulation of a contract, between defendants and garnishee, and the piling safely in the mill-yard the event on which payment is conditioned, defendants cannot recover for part performance in getting out the logs on a basis of quantum meruit, notwithstanding garnishee took possession of the logs before complete performance of the contract, he having obtained this right by reason of defendants' insolvency and their abandonment of the logs for over a year.-McDonald v. Miller, (Wis.) 665.

ATTACHMENT.

See, also, Garnishment.
Sheriff's fees, see Costs, 2.
Void attachment as evidence, see Trover
and Conversion, 10.

When lies.

1. A. and B. were in partnership in buying and shipping grain from F. to C., the residence of A. A. sent his agent to F., who, finding that B. was improperly using the money furnished by A. for the partnership business, employed an attorney, and 6. The publication, pursuant to Gen. St. in B.'s absence ordered the local banks to 1878. c. 41, § 26, of notice of an assignment pay no more of B.'s checks until a settlefor the benefit of creditors, is not construct-ment of the partnership affairs was made. ive notice to debtors of the assignor, and, if a debtor, without actual notice of the assignment, pays the assignor, he will be discharged from the debt.-Graham v. Evans, (Minn.) 368.

Rights of creditors.

7. When an insolvent debtor assigns all his property for the benefit of all his creditors, (and not for the benefit merely of those filing releases, as permitted by the Minnesota insolvent law of 1881, in case of levy on the debtor's property,) the surplus, if any, to be repaid to him only after payment in full of all his debts, creditors cannot be required to file releases to the debtor as a condition of sharing in the benefits of the assignment. GILFILLAN, C. J., dissenting. In re Bird, (Minn.) 827.

Order for sale.

8. Under Rev. St. Wis. § 1693, giving the circuit court supervision of the proceedings in voluntary assignments, and authorizing it to make all orders necessary for the execution of the same, the circuit court may make an order, at the instance of the assignee for benefit of creditors, that the property assigned be sold, free from the incumbrances thereon; and such order cannot be collaterally attacked, except for fraud.-Littlejohn v. Turner, (Wis.) 621.

B. retained defendant as his attorney. A basis of settlement was agreed on subject to A.'s approval, and to be submitted to him by B. and A.'s agent in C. Prior to B.'s departure for C. he received a check for $500, the property of the firm, and delivered it to defendant, who converted it into money. There was evidence that A.'s agent, while in F., agreed with defendant that A. would pay the fees for his services in case the settlement was made. The settlement was approved by A., and the partnership continued. In an action by A. against defendant for the $500, an attachment was procured on the ground that the debt was fraudulently contracted by defendant; which attachment was, on motion of defendant, discharged on the ground that the proofs failed to sustain the allegation of fraud. Held no error.Warren v. Barsby, (Neb.) 314.

2. A petition stating that "sums were received by said defendant from said plaintiff to be loaned by said defendant for said plaintiff, and for the use and benefit of said plaintiff," and also stating that defendant was to repay the money, or reloan it for plaintiff, sufficiently shows that defendant's liability for conversion of such sums arises ex contractu, to entitle plaintiff to issue attachment.-Hart v. Barnes, (Neb.) 322.