burden to establish such defense held to rest15 (Utah) In the absence of statute, unearned salary of a public officer may not be on him.-Marks v. Reissinger, 169 P. 243. 31 (Cal.App.) Evidence that defendant had assigned.-Tribune Reporter Printing Co. v. rubber hose in his saloon because he had no Homer, 169 P. 170. protection, and thought he had a right to pro-24(2) (Cal.App.) Causes of action for damtect his place, held properly stricken.-Marks v. ages for having to work without sleep for four nights and days, suffering mental and physical Reissinger, 169 P. 243. anguish and loss by absence from business, are not assignable.-Jones v. Manning, 169 P. 912. (B) Mode and Sufficiency of Assignment. 43 (4) (Cal.App.) In action for death due to assault, instruction as to presumption respecting justification for bodily injury held properly given.-Marks v. Reissinger, 169 P. 243. II. CRIMINAL RESPONSIBILITY. (A) Offenses. 48 (Okl.) Delivery of void paving bonds by D. to G. as collateral for debt does not work equitable assignment of debt from M. to D. for cost of paving, against which bonds were issued. 49 (Colo.) A specific intent to injure any-Guaranteed State Bank of Durant v. D'Yarperson in any manner is not necessary to the mett, 169 P. 639. offense of simple assault committed by reckless driving of automobile.-People v. Hopper, 169 P. 152. 52 (Colo.) That driver of automobile was violating speed ordinance when he collided with another automobile, held not in itself to make him guilty of assault.-People v. Hopper, 169 P. 152. 56 (Colo.) Under Rev. St. 1908, § 1658 (Mills' Ann. St. 1912, § 1786), a specific intent to injure is an essential element of assault with a deadly weapon with intent to injure. People v. Hopper, 169 P. 152. II. OPERATION AND EFFECT. 73 (Okl.) "Assignment," unless qualified, is properly the transfer of owner's whole interest in estate or chattel.-Guaranteed State Bank of Durant v. D'Yarmett, 169 P. 639. ASSIGNMENTS FOR BENEFIT OF CREDITORS. See Bankruptcy. I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Trusts for Creditors. 60 (Wash.) To constitute an assault in first degree there must be a specific intent to kill a human being, while an assault in the second degree may arise if it is made with a weapon 45 (Wash.) Where trustee for creditors likely to produce bodily harm; no specific de- employed insolvent debtor to manage propersign being necessary.-State v. Albutt, 169 P.ty, such fact did not destroy legal transfer of 584. (B) Prosecution and Punishment. 89 (Colo.) That driver of automobile was violating speed ordinance when he collided with another automobile, held proper evidence for consideration of jury on question of negligence in prosecution for assault.-People v. Hopper, 169 P. 152. 95 (Colo.) Evidence as to reckless driving of automobile held to make question for jury as to guilt of simple assault.-People v. Hopper, 169 P. 152. ASSESSMENT. See Damages, 208; Drains, 67; Mandamus, 117; Municipal Corporations, 434-519; Taxation, 319, 333-363. ASSETS. See Marshaling Assets and Securities. ASSIGNMENT OF ERRORS. See Appeal and Error, 719-724. ASSIGNMENTS. See Corporations, 116-130; Fraudulent Con- I. REQUISITES AND VALIDITY. able. (Okl.) "Assignment" is transfer or setting over of property, or some right or interest therein, from one person to another.Guaranteed State Bank of Durant v. D'Yarmett, 169 P. 639. 3 (Utah) The Legislature by expressly changing, by Comp. Laws 1907, § 3113x, the law that a city may not be garnished for salary of an officer, did not intend to change the law, that unearned salary of an officer may not be assigned; but the express mention of the one implies the exclusion of the other.-Tribune Reporter Printing Co. v. Homer, 169 P. 170. property to trustee or permit creditor by obtaining judgment and levying execution to secure payment of his debt in full.-Meakim v. Ludwig, 169 P. 24. IV. ADMINISTRATION OF ASSIGNED ESTATE. 253 (Or.) Where a business is transferred to one in trust, with agreement to purchase goods and to keep the business going and pay off creditors, the trustee has power to purchase goods and bind the trust estate therefor. -Rothchild Bros. v. Kennedy, 169 P. 102. V. RIGHTS AND REMEDIES OF (B) Presentation, Proof, and Payment of 311 (Cal.) Trust deeds providing for sale of properties in L. and S. to pay creditors in order of priority named, property in L. to be sold first, held not to require prorating among creditors in such a way that a creditor given a lien on the L. property alone would have priority in distribution of the proceeds of the L. property, over a creditor having a lien on both properties. Harrington v. Taylor, 169 P. 690. VI. RIGHTS AND REMEDIES OF ASSIGNOR. 363 (Wash.) Defendant held either to have consummated sale of plaintiff's shares of corporate stock according to trust agreement or to have disposed of same in violation of agreement, so that in any event trust was terminated and plaintiff was entitled to return of other trust property and funds remaining with interest.-Davidson v. Chilberg, 169 P. 981. VII. ACCOUNTING, SETTLEMENT, 377 (Wash.) In action to require trustee to account, held, that it was unnecessary to join as parties persons who had received payment by trustee, as well as corporations which might have interest; such companies having notice by reason of fact that defendant was officer therein.-Davidson v. Chilberg, 169 P. 981. VII. QUASHING, VACATING, DISSO- 248 (Cal.) Motion to dissolve attachment cannot be turned into demurrer to complaint. -Hamilton v. Baker-Hansen Mfg. Co., 169 P. 238. On motion to dissolve for failure of affidavit to state basis for attachment, only question is whether cause of action which is stated or attempted to be stated is one upon which attachment will issue.-Id. VIII. CLAIMS BY THIRD PERSONS. 296 (Cal.App.) In view of Code Civ. Proc. §§ 549, 689, requiring third party claims in attachment to be verified by such party or his agent, a demand by the claimant's brother-inlaw as her agent, not verified, was insufficient, though an acknowledgment was made before a notary as to truth of facts stated therein.-Easterly v. Praul, 169 P. 396. IX. RETURN. 322 (Kan.) Return upon an order of attachment describing land as northeast and northwest quarters of section 22 in township 7, range 38, was not void for uncertainty.Hodgen v. Roy, 169 P. 1143. ATTAINDER. > (Or.) Attachment proceedings are statu- See Nuisance, 77. tory, and the substantial requirements of the statute must be complied with.-Murphy v. Bjelik, 169 P. 520. 8 (Cal.) As plaintiff who sued for breach of contract upon which he advanced money and received nothing could recover as damages money so paid, sum was certain and liquidated upon which attachment may issue.-Hamilton v. Baker-Hansen Mfg. Co., 169 P. 238. 14 (Cal.) That plaintiff has in complaint demanded other sums than liquidated amount attached is immaterial, as indebtedness set up in affidavit of attachment need not include all damages claimed in complaint.-Hamilton v. Baker-Hansen Mfg. Co., 169 P. 238. II. PROPERTY SUBJECT TO ATTACH MENT. ATTORNEY AND CLIENT. See Appeal and Error, 1060; Appearance, 3; Malicious Prosecution, 25; Partition, 114; Principal and Agent. I. THE OFFICE OF ATTORNEY. (C) Suspension and Disbarment. 44(2) (Okl.) A member of a firm of attorneys who received a claim for collection, and who, in the absence of his partner, collected it and deposited it to his own credit and checked it out for his personal use, would be suspended for six months.-State v. Breslin, 169 P. 897. claim for collection who was absent when his A member of a firm of attorneys receiving a partner collected it and misappropriated the proceeds, and who upon knowledge thereof forwarded the amount in settlement of the claim, was not subject to disbarment or suspension. 58 (Mont) Attachment on desert claim before entryman has complied with all preliminary acts prescribed by law for acquisition of title thereto creates no valid lien on entry--Id. man's inchoate right or after title is acquired-Stockmen's Nat. Bank of Ft. Benton v. Hofeldt, 169 P. 48. III. PROCEEDINGS TO PROCURE. (B) Affidavits. 103 (Cal.) Statement in affidavit of attachment that money was due upon implied contract, when in fact it was due upon express contract, held not to make affidavit defective.Hamilton v. Baker-Hansen Mfg. Co., 169 P. 238. 107 (Cal.) Affidavit for attachment using words, "in addition to certain claims," etc., held to sufficiently state amount of defendant's indebtedness, as required by Code Civ. Proc. § 538.-Hamilton v. Baker-Hansen Mfg. Co., 169 P. 238. V. LEVY, LIEN, AND CUSTODY AND That an officer seizes and holds an excessive amount of property does not necessarily invalidate the attachment.--Id. II. RETAINER AND AUTHORITY. 72 (Or.) That defendant, sued for money collected on judgment obtained by plaintiff, signed the satisfaction of judgment as his attorney, is some evidence of his employment as such under L. O. L. §§ 1074, 1083.-Caples v. Ditchburn, 169 P. 510. owners, 86 (Or.) In suit by railway against landcourt, approved by court, held to settle quesannouncement of their attorney in tion that landowners' deed to railway was knowingly executed by them as substitute for their prior conveyance.-Oregon-Washington R. & Nav. Co. v. Reed, 169 P. 342. III. DUTIES AND LIABILITIES OF AT- torney collected a judgment owned by plaintiff, The answer of attorney sued for money collected, claiming part of it, and justifying possession and detention of remainder, makes it unnecessary for plaintiff to prove demand of payment.-Id. IV. COMPENSATION AND LIEN OF ATTORNEY. (A) Fees and Other Remuneration. amount fixed by police court judge before filing 131 (Okl.) Rights and remedies of an at-mitted, it would not be void, but only subject torney under Laws 1909, c. 4, were not affected by adoption of Rev. Laws 1910.-Allen v. Shepherd, 169 P. 1115. would constitute no defense to action on accusto be set aside under Pen. Code, § 995, and ed's bail bond.-People v. Lepori, 169 P. 694. 147 (Okl.) A valid covenant in an attor-57 (Cal.App.) Bail bond reciting that, inney's contract, for contingent fees, based on a formation having been filed, signers undertook legal consideration, is enforceable, though a separable covenant for same consideration is that accused would answer "the charge above mentioned," held not unduly onerous because void as against public policy.-Allen v. Shep- requiring accused to answer charge instead of information.-People v. Lepori, 169 P. 692. 158 (Mont.) Attorney, suing his client, may 58 (Cal.App.) Under Pen. Code, § 1287, have and state cause of action for money judg- requiring bail bonds to state offense generally, ment on account of services rendered and mon- designating offense as grand larceny, is suffiey advanced, though purpose is to foreclose attorney's lien, existence of which is open to cient, although information charged grand larceny by taking from another's person.-People denial.-English v. Jenks, 169 P. 727. v. Lepori, 169 P. 692. herd, 169 P. 1115. 166 (2) (Cal.) In suit by plaintiff attorney61 (Cal.App.) Acknowledgment before court for value of professional services, evidence held is not part of bail bond given.-People v. Lepori, to show employment of plaintiff by defendants. 169 P. 692. -Henshall v. Coburn, 169 P. 1014. Where witness had testified that he had been authorized to employ plaintiff as attorney for defendants, it was proper, for purpose of bringing out terms of the employment, to ask plaintiff what such witness said to him on occasion of employment.-Id. (B) Lien. 186 (Mont.) At common law, attorney's lien on judgment secured for client ends when judgment is satisfied; but, under Rev. Codes, 8 6422, lien extends to proceeds of judgment, "in whose ever hands they may come."-English v. Jenks, 169 P. 727. 189 (Okl.) Under Laws 1909, c. 4, client may contract to pay attorney a percentage of proceeds of cause of action, but thereafter, without attorney's consent, cannot compromise his cause of action, so as to affect attorney's fee or abrogate his lien.-Allen v. Shepherd, 169 P. 1115. 190(3) (Okl.) Where client contracted to pay a contingent fee, and compromised with adverse party, without attorney's consent, the attorney might, under Laws 1909, c. 4, sue adverse party for amount due under contract.Allen v. Shepherd, 169 P. 1115. BAILMENT. See Banks and Banking, 147-154; Carriers, 159-185; Pledges. 18(2) (Cal.) Persons making, altering, or repairing personal property had lien for services rendered at common law.-Mortgage Securities Co. of California v. Pfaffmann, 169 P. 1033. 18(2) (Or) Where repairer was given an automobile for a complete overhauling and the owner permitted to use it before it was tested in the usual manner and the owner returned it and requested more work to be done on it, the machine was not delivered within L. O. L. § 7498, relating to time for filing notice of lien after delivery, until the work was completed.Pierce Arrow Sales Co. v. Irwin, 169 P. 129. 18(5) (Or.) In a suit to enforce a lien for repairs to an automobile, held, that there was a preponderance of the evidence supporting a finding that there was no express contract as to the amount to be paid although there was an estimate as to cost.-Pierce Arrow Sales Co. v. Irwin, 169 P. 129. BALLOTS. Attorney suing to enforce liability for contingent fee, imposed by Laws 1909, c. 4, against See Elections, 180-194. adverse party who had compromised with his client, must show client's meritorious cause of action, and what client would have been entitled to receive.-Id. 190(4) (Okl.) In action by attorney for value of undivided one-half interest of land, not alleging any damage from exclusion from possession, judgment for one-half the rental value was without the issues and erroneous.-Allen v. Shepherd, 169 P. 1115. AUTHENTICATION. See Criminal Law, 444. AUTHORITY. See Principal and Agent, 103. AUTOMOBILES. See Assault and Battery, 49, 52, 56, 89, 95; BAIL. II. IN CRIMINAL PROSECUTIONS. 51 (Cal.App.) Under Pen. Code, § 1269, authorizing acceptance of bail for defendant's BANKRUPTCY. See Assignments for Benefit of Creditors. (B) Assignment, and Title, Rights, and 155 (Or.) Trustee in bankruptcy of contractor with state to install plumbing held postponed to rights of surety for contractor, which performed on the contractor's default.Derby v. United States Fidelity & Guaranty Co., 169 P. 500. (C) Preferences and Transfers by Bank- 188(1) (Wash.) Chattel mortgage describing logs as in mortgagor's boom, which did not reach the boom for 12 days thereafter, held valid as against trustee in bankruptcy subsequently appointed.-Otto v. England, 169 P. 964. 205 (Wash.) Where validity of chattel mortgage had been established by decree in foreclosure suit before bankruptcy proceedings were instituted, trustee held to have no greater rights than those of the bankrupt.-Otto v. (C) Deposits. 147(1) (Okl.) Bank paying depositor's check upon forged indorsement cannot charge it against depositor's account, and must look to guaranty of paying bank or other intermediate indorsers, unless depositor's negligence induced payment, or some estoppel is available against him.-National Bank of Commerce v. Fish, 169 P. 1105. 148(2) (Okl.) When a depositor issues his check payable to payee or order, bank must pay same to person named in check or upon his genuine indorsement, and its failure so to do is at its peril.-National Bank of Commerce v. Fish, 169 P. 1105. 153 (Idaho) Where bank's debtor leaves certain notes with it as security for bank to collect and apply part of proceeds to debt and deliver balance to third person, and cashier deposits balance in bank, such balance is a "special deposit," or "trust fund."-Russell v. Bank of Nampa, 169 P. 180. 154(5) (Okl.) In depositor's action against several banks for amount paid on his forged checks, evidence as to depositor's confidence in honesty of agent retained during time forgeries occurred was properly excluded, where pleadings did not raise issue as to negligence in retaining such agent.-National Bank of Commerce v. Fish, 169 P. 1105. 154(8) (Okl.) In depositor's suit against bank to recover amounts paid out on his forged check, evidence held insufficient to establish a defense in favor of bank.-National Bank of Commerce v. Fish, 169 P. 1105. BASTARDS. III. PROCEEDINGS UNDER BAS- 64 (Okl.) Action under Rev. Laws 1910, § 4401, to determine paternity of bastard child and to enforce support is in nature of civil action, and the law only requires the issues to be supported by a preponderance of the evidence. -Powelson v. State, 169 P. 1093. 71 (Okl.) Where material fact testified to by one witness in civil action is not denied and is not inherently improbable, court in its instruction may assume such fact to be established.-Powelson v. State, 169 P. 1093. 73 (Okl.) In proceeding under Rev. Laws 1910, $$ 4401-4411, to determine paternity of bastard child and to enforce support, the time for filing a motion for a new trial runs from return of verdict, and not from judgment.Powelson v. State, 169 P. 1093. BATTERY. See Assault and Battery. BENEFICIAL ASSOCIATIONS. See Building and Loan Associations; Constitutional Law, 278. 16 (Cal.) Under constitution and laws of a Supreme Lodge, held, that its revocation of charter of subordinate lodge without notice, charges, hearing, or finding of guilt would not forfeit its lodge property, etc.-Supreme Lodge of the World, Loyal Order of Moose, v. Los Angeles Lodge, No. 386, Loyal Order of Moose, 169 P. 1040. 17 (Cal.) Where charter of local lodge was suspended or revoked without notice, hearing, etc., the minority members, adhering to Supreme Lodge and organizing new organization, were not entitled to lodge property, etc., as against majority members.-Supreme Lodge of the World, Loyal Order of Moose, v. Los Angeles Lodge, No. 386, Loyal Order of Moose, 169 P. 1040. Local lodge whose charter was suspended or revoked by Supreme Lodge without notice, hearing, charges, etc., so that no forfeiture of its lodge property was effected, and which was a de facto corporation, held entitled to its lodge property.-Id. 154(9) (Okl.) In depositor's action against several banks for amounts paid on forged checks, failure to render a judgment over in favor of depositor's bank was not error, where it had not sought such alternative relief.-Na- See Charities, 21; Insurance, 587. tional Bank of Commerce v. Fish, 169 P. 1105. (E) Loans and Discounts. BENEFICIARIES. BILL OF EXCEPTIONS. 176 (Okl.) A loan made by a bank to its of- See Exceptions, Bill of. ficers in violation of Rev. Laws 1910, § 270, was not void as between the bank and the debtor, who cannot defeat a recovery on that ground.-See Schuber v. McDuffee, 169 P. 642. 180 (Or.) Under L. O. L. § 4569, subd. "b," as amended by Gen. Laws 1915, p. 432, and in view of section 4583, subd. "d," as amended by Gen. Laws 1911, p. 242, which, taken together, were practically copies of provisions of the National Banking Act, state bank which accepted its own stock as collateral for a pre-existing debt may enforce its lien as against other lienholders, though it did not do so within six months after the stock was deposited as collateral.-Columbia Rock & Sand Co. v. Hibernia Sav. Bank, 169 P. 88. BILLS AND NOTES. Alteration of Instruments, 20; Evidence, 441, 450. II. CONSTRUCTION AND OPERATION. 132 (Kan.) Maker of note for debt of anliability had not been performed.-Carter v. other was not liable where the condition of his Wilson, 169 P. 1139. 135 (Cal.) Where all the makers of a note executed it as principals, that one of them gave his note to the holder of the first note, long after the first note had matured, as collateral security for its payment, created no equity in the other makers of the first note, entitling them to object to the return of the collateral note.-Levey v. Henderson, 169 P. 673. IV. NEGOTIABILITY AND TRANSFER. (A) Instruments Negotiable. 158 (Okl.) Note providing for interest at 9 per cent., and providing that if it was paid on or before maturity, it should bear only 7 per cent., did not contain unconditional promise to pay a sum certain in money within Rev. Laws 1910, $ 4051, and was not negotiable.-Union Nat. Bank v. Mayfield, 169 P. 626. VII. PAYMENT AND DISCHARGE. BONDS. See Appeal and Error, 382, 384. 1230, 1237; Bail; Costs, 119-137; Counties, 123; Guardian and Ward, 15, 182; Justices of the Peace, 29, 159; Municipal Corporations, ~347; Principal and Surety; Schools and School Districts. 81, 97; Sheriffs and Constables, 169. BOOKS OF ACCOUNT. 437 (Cal.) Where makers of a note all signed as principals, and none were in fact sureties for any of the others, none of them were released by the withdrawal of stock originally See Evidence, 354. pledged to secure the note.-Levey v. Henderson, 169 P. 673. VIII. ACTIONS. BOUNDARIES. I. DESCRIPTION. 491 (Cal.App.) In action on note and to foreclose mortgage securing it, burden was up-14 (Utah) A city boundary calling for the on defendant to establish affirmative matters bank of a stream does not extend merely to the set up in his answer.-Minor v. Carpenter, 169 high-water mark on the bank of the stream, but goes to the mean water level, regardless of droughts or freshets.-Wrathall v. Miller, 169 P. 946. P. 434. Where party to note depends upon extension of time to meet his obligation, he must show agreement for time certain.-Id. 497(5) (Idaho) In an action on a negotiable note, where defendant pleads and proves that note was procured by fraud, under Rev. Code, §3516, plaintiff had the burden of affirmatively showing that it was a holder in due course.-First Nat. Bank of Shenandoah, Iowa, v. Hall, 169 P. 936. 37(5) (Utah) Evidence held to sustain finding that of two surveys marking boundary between plaintiff's and defendants' lands later was definite, agreed to, and acquiesced in as the true boundary.-Blackham v. Olsen, 169 P. 156. 48 (2) (Utah) In suit involving dispute as to true division line between lands of plaintiff and defendants, plaintiff, by conduct after second survey, held estopped to claim that it was not true boundary.-Blackham v. Olsen, 169 P. 156. 505 (Cal.) In action on note wherein defendants set up fraud in that plaintiffs, on exchange of land, agreed to take one-half of commission from each party, and accepted $1,000 See Pensions. from the others, but represented that such others paid $2,500 and so secured the note in BOUNTIES. BRAKES. suit, it was error to exclude the agreement by See Evidence, 539. 516 (Cal.App.) In action on note and to foreclose mortgage securing it, evidence held to sustain finding that time for payment of note had not been extended.-Minor v. Carpenter, 169 P. 434. BRANDS. See Larceny, ~45. BREACH OF MARRIAGE PROMISE. See Contracts, 112. 516 (Wash.) In action on note, evidence held sufficient to support judgment for plaintiff.20 (Or.) One asserting breach of marriage -Evenson v. Baum, 169 P. 819. promise has burden of proving same.-Olson v. Saxton, 169 P. 119. 520 (Cal.) Where parties stipulated that an absent witness would testify to fraud inducing the note in suit, without objection to its competency, and no other evidence as to fraud was admitted, finding that there was no fraud was not sustained.-Zirbes v. Mounsey, 169 P. 368. on 23 (Or.) In action for breach of marriage promise, plaintiff asserting that after new promise by defendant to marry him he destroyed notes evidencing her indebtedness, evidence held insufficient to establish such promise.-Olson v. Saxton, 169 P. 119. BRIEFS. 520 (Okl.) In a suit on a note and to foreclose a mortgage securing it, defended ground of fraud in procuring note, evidence held to support a judgment for plaintiff on spe- See Appeal and Error, 757-773; Criminal cial findings, and a judgment against defendant upon answer and cross-petition.-Limerick v. Jefferson Life Ins. Co., 169 P. 1080. |