Imágenes de páginas

meni of adultery without defining the of-| APPEAL AND ERROR. fense applies to an unmarried man having Appellate jurisdiction generally. illicit intercourse with a married woman, For certified questions, see Cases Ceralthough another statute expressly provides

tified. punishment of an unmarried woman hav- Judicial notice by appellate court, see ing illicit intercourse with a married man.

Evidence, 1. State v. Bigelow, L.R.A.1915D, 438, 92 Atl. Necessity of, to review objection to 978, Vt.


local assessment, see Public Im

provements, 3. AFFIDAVITS.

As to bill of review, see Review. Time for objection that warrant for 1. An order of the district court which

search of premises was not sup. confirms an order of the county court in ported by affidavit, see Appeal and an ancillary administration, refusing to Error, 13.

grant a petition filed by the principal adOn motion for new trial, see New Trial, ministrator under the direction of the prin4.

cipal court for the sale of real estate in

the state of the ancillary administration, AIR.

and the transmission of the proceeds thereEasement of, see Easements, 2; Taxes, of to such principal court for the payment 3.

of the debts there provided, is a final order

affecting a substantial right made in a spe. ALIENS.

cial proceeding, and is appealable as such Administration of estates of, see Diplo- under 7225, Rev. Codes of N. Dak. 1905.

matic and Consular Officers; Ex Dow v. Lillie, L.R.A.19151, 754, 144 N. W. ecutors and Administrators, la. 1082, 26 N. D. 512.

2. An appeal may be had from a decision ALLOWANCE.

of the probate court refusing to appoint Of claim against decedent's estate, see an administrator and grant letters of adExecutors and Administrators, 3. ministration of the estate of a non resident

intestate, where the decision is based upon AMBASSADORS.

the ground that such intestate left no propForeign minister, see Diplomatic and erty in the state to be administered. Re Consular Officers.

Miller, L.R.A.19150, 856, 136 Pac. 255, 90

lian. 819. AMBIGUITY.

3. A criminal proceeding originating in In demand for autopsy by insurance an inferior court is within the provision of company, see Insurance, 18.

a constituional provision that the appellate

division in any department may allow an AMENDMENT.

appeal upon any question which, in its opin. Of writ of mandamus, see Mandamus, 5. ion ought to be reviewed by the court oi Of pleading, see Pleading, 2.

appeals. People on Complaint of Pugliese v. Ekerold, L.R.A.1915D, 223, 105 N. E. 670,

211 N. Y. 386. AMUSEMENTS.

Transfer of cause. See Bathing Resorts.

4. A receiver who brings an action to

establish a claim in the court from which ANCILLARY ADMINISTRATION. See Executors and Administrators, 4, from an adverse decision without permis

he received his appointment cannot appeal 6, 9, 10.

sion of the court. Coffey v. Gay, L.R.A.

1915D, 802, 67 So. 681, Ala. ANIMALS.

(Annotated), Injury to, through failure to maintain Record on appeal.

suflicient fence, see Fences. Fright of, see Highways, 6, 7; Pleading, of the district court confirming an order

5. In case of an appeal from an order 5; Proximate Cause.

of the county court in an ancillary adminisA railroad company is liable for in-tration, refusing to grant a petition tiled juries to a pedestrian walking on the side by the principal administrator under the walk in a village, caused by his being ru. direction of the principal court for the sale over by a wild Texas cow which had escaped of real estate in the state of the ancillary from one of its cars in a collision resulting administration, and the transmission of the from the railroad company's negligence, proceeds thereof to such principal court while such cow was being driven to the for the payment of debts there provided, stockyard by persons employed by the rail. where the trial in the district court is had way company for that purpose. Hartman v. upon a stipulation of facts and depositions Atchison, T. & S. F. R. Co. L.R.A.1915D, which are included in the certified record 563, 146 Pac. 335, 94 Kan. 184.

on appeal from the county to the district (Annotated) court, and no oral evidence is taken in the

latter court, no statement of the case is ANSWERS.

necessary, and the supreme court can take In contempt proceeding, see Contempt, into consideration the evidence as presented 6.

by the depositions and the stipulations.


Dow v. Lillie, L.R.A.1915D, 754, 144 N. W., describe the dwelling or identify the per1082, 26 N. D. 512.

son alleged to have been in it is not, in the Objections and exceptions; raising absence of demurrer, available on appeal. questions in lower court.

People v. Grutz, L.R.A.1915D, 229, 105 N. 6. Objections to instructions made for E. 843, 212 N. Y. 72. the first time upon motion for new trial 16. The variance caused by proof withcannot be considered on appeal. Ross v. out objection, of money paid employees in Kohler, L.R.A.1915D, 621, 174 S. W. 36; addition to that paid the directors themKy.

selves, in an action to compel directors of 7. Objection to language used by coun- a corporation to account for money paid sel in argument cannot be considered on themselves, may be disregarded. Godley v. appeal if made for the first time on motion Crandall & Godley Co. L.R.A.1915D, 632, for new trial. Ross v. Kohler, L.R.A.1915D, 105 N. E. 818, 212 N. Y. 121. 621, 174 S. W. 36, Ку.

Errors waived or cured below. Interlocutory matters; orders, etc., not 17. A new trial cannot be awarded upon appealed from.

appeal where the unsuccessful party after 8. Appeal by plaintiff from a judgment verdict moved for judgment notwithstandrefusing a new trial after verdict for nomi- | ing the verdict, but did not move in the nal damages upon a new trial granted upon alternative for a new trial, as he was enthe setting aside of a verdict in his favor, titled to do under the statute, since by brings before the appellate court the order resting solely upon his motion for judg. granting the new trial, if both bills of ex- ment, he waived all errors, which would be ception are in the record. Ross v. Kohler, ground only for a new trial. Northwestern L.R.A.1915D, 621, 174 S. W. 36, Ky. Marble & Tile Co. v. Williams, L.R.A.1915D, Discretionary matters.

1077, 151 N. W. 419, 128 Minn. 514. 9. The allowance of amendments rests Review of facts. largely within the sound discretion of the Instances of excessive amounts of damtrial court. French v. State Farmers' Hail

ages, see Damages, 4. Ins. Co. L.R.A.1915D, 766, 151 N. W. 7, 18. The amount allowed by a jury as 29 X. D. 426.

compensatory damages for false imprison10. It is not such an abuse of discretion ment approved by the trial judge is not on the part of the trial court to refuse to reviewable on appeal. Cook v. Highland admit evidence in rebuttal which, under the Hospital, L.R.A.1915D, 611, 84 S. £. 352, pleadings, is part of plaintiff's case in chief, - N. C. for the nonintroduction of which in proper

19. That the evidence would have warorder no adequate excuse is offered so as to ranted a larger award of damages than was require a reversal. Bain v. Fort Smith allowed by the trial court is no reason for Light & Traction Co. L.R.A.1915D, 1021, the appellate court disturbing the judgment. 172 S. W. 843, Ark.

Berg v. Yakima Valley Canal Co. L.R.A. 11. The action of the trial court in set. 1915D, 292, 145 Pac. 619, Wash. ting aside a verdict and granting a new Grounds for reversal. trial for error of law, which is not in fact 20. Refusal to admit in evidence an aferror, is error. Ross v. Kohler, L.R.A. fidavit, the truth of which has been admit1915D, 621, 174 S. W. 36, Ky.

ted, to prevent a continuance, is not error 12. Vo abuse of discretion which will re- where it is directed at the credibility of quire a reversal on appeal in refusing to a state's witness who has not been introset aside a verdict for bias of a juror is duced. Lawson v. Com. L.R.A.1915D, 972, shown by the fact that the court acts upon 169 S. W. 587, 160 Ky. 180. a statement in his aflidavit that he used his 21. In an action against a corporate influence to reduce the punishment fixed by owner of an office building to hold it liable the jury, in preference to affidavits by for injury to a passenger on the elevator friends of the accused that the juror told through a structural defect, there is no them that accused should be given the limit. error in admitting evidence of the original Brannon v. Com. L.R.A.1915D, 569, 172 S. owner of the building that he had conveyed W. 703, 162 Ky. 350.

it to the corporation of which he and his Questions not raised below.

wife were the principal stockholders. Dib13. The objection that a warrant for bert v. Metropolitan Invest. Co. L.R.A. search of premises for intoxicating liquors 1915D, 305, 147 N. W. 3, 158 Wis. 69. was not supported by affidavit as required 22. No reversible error can be predicated by statute cannot be raised for the first on a ruling permitting plaintiff to call the time on appeal from a conviction for wrong-claim auditor of a defendant corporation ful possession of the liquors found. Frogg for cross-examination under the statute. v. Com. L.R.A.1915D, 330, 173 S. W. 383, where plaintiff did not seek to avoid his Ky.

testimony, and the form of the questions 14. The objection that there is a mis. would have been proper had he been called joinder of causes of action, or that a cause as plaintill's witness. Johnson v. Bankers' is of equitable, and not of legal, cognizance, Mut. Casualty Ins. Co. L.R.A.1915D, 1199, cannot be raised for the first time on ap- 151 N. W. 413, 129 Minn. 18. peal. French v. State Farmers' Hail Ins. 23. An instruction that in order for Co. L.R.A.1915D, 766, 151 N. W. 7, 29 N. probable cause for an arrest to exist, the D. 426.

facts must be such as would justify an 15. Failure of an indictment for arson to' ordinarily cautious person in entertaining


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a belief in another's guilt, and that whether / specially for the purpose of pleading in such facts came to the knowledge of the abatement, or moving that the action be defendant at the time he caused the arrest dismissed, if no personal service of process of the plaintiff is a question for the jury is shown. Koontz v. Baltimore & 0. R. Co. to determine, is materially erroneous where L.R.A.1915D, 838, 107 N. E. 973, 220 Mass. not accompanied by a clear and accurate 285. statement of what specific facts, under the circumstances of the case, would, if found APPOINTMENT. to exist, be sufficient under the law for Of personal representative, see Executhat purpose, where it cannot be said from

tors and Administrators, 1, la. the record that the jurymen were not in fact misled, as it tends to lead the jury to APPORTIONMENT. understand that they are to decide not only Of local improvement assessments, see what information the defendant had, but

Public Improvements, 6. whether it was enough to justify a reasonable belief in the plaintiff's guilt. Matson APPURTENANCES. v. Michael, L.R.A.1915D, 1, 105 Pac. 537, 81 Easements as, see Easements, 1. Kan. 360.

24. It is error to assume the existence ARCHITECT. of an injury in instructing the jury in an Right to mechanics' lien, see Mechanics' action to recover damages for personal in

Liens. juries due to another's negligence. Salmi v. Columbia & N. R. R. Co. L.R.A.1915D, ARREST. 834, 146 Pac. 819,- Or.

Civil liability for making, see False 25. It is not prejudicial error for the at

Imprisonment. torney for plaintiff in a suit against a police officer for false imprisonment, to refer ARSON. in argument to the fact that defendant's Indictment for, see Appeal and Error, counsel is assistant city attorney, although

15. that fact does not appear in the record. Evidence in prosecution for, see EviRoss v. Kohler, L.R.A.1915D, 621, 174 S.

dence, 24, 37, 38, 41. Ky. 26. Where, from the conceded facts, it ARTISAN. appears that the parties to an action have Lien of, see Liens. no title to the subject-matter of the litigation, hence no right to maintain an action | ASSAULT AND BATTERY. or to recover allirmative relief by cross On witness as contempt, see Contempt, petition, and where the only judgment re

1, 2, 7. covered against them, except an adverse adjudication of the title, is vacated on ap. ` ASSESSMENTS. peal, error in the trial court forcing them For improvements, see Drains and to trial on the day that the issues of fact

Sewers; Public Improvements. were joined is without prejudice, and fur- Of tax, see Taxes, 1, 5. nishes no ground for reversal. Whelan v. Adams, L.R.A.1915D, 551, 145 Pac. 1158, ASSIGNMENT. Okla.

Of corporate stock, see Corporations, Judgment.

12, 13. 27. It cannot be said as matter of law that one claiming the estate of a deceased ASSIGNMENT FOR CREDITORS. person upon evidence of declarations as to Conversion by purchaser at assignee's pedigree, but failing to establish the rela

sale, see Trover. tionship of declarant to the family, cannot do so on another hearing, so as to justify | ASSUMED NAME. a dismissal of the petition without new Transaction of business under, see Contrial. Aalholm v. People, L.R.A.1915D, 215,

tracts, 8. 105 N. E. 647, 211 N. Y. 406.

28. Matters considered in an original | ASSUMPSIT. motion for a new trial, and there deter- 1. No return of unearned premium upmined by the trial court and subsequently on a bond insuring the fidelity of a public affirmed by the supreme court, will not officer for a yearly premium can be had, again be considered in a subsequent attempt although he dies in the middle of the year; to set aside the verdict. Frank v. State, at least, where duties involving the principal L.R.A.1915D, 817, 83 S. E. 645, 142 Ga. 741. hazard have all been performed before his

29. The grounds for a petition for re- death. Crouch v. Southern Surety Co. hearing of an appeal should be brief and L.R.A.1915D, 966, 174 S. W. 1116, 131 concise, and made separate from the argu- | Tenn. 260. ment. Reiff v. Portland, L.R.A.1915D, 772, 2. The United States cannot recover 141 Pac. 167, 142 Pac. 827, 71 Or. 421. money paid by the Secretary of the Treas

ury to a bona fide holder for value, guilty APPEARANCE.

of no negligence contributory to the fraud, No judgment can be entered against upon a draft upon him bearing the forged a foreign corporation which has appeared 'signature of an officer having the right to make such drafts, since he was bound to violates his duties and obligations as an know the signature of such official, and the attorney and counselor at law, for which he question whether the bill is negotiable or may be disbarred. State Bar Commission not is immaterial. United States v. Bank ex rel. Williams v. Sullivan, L.R.A.1915D, of New York, Nat. Bkg. Asso. L.R.A.1915D, | 1218, 131 Pac. 703, 35 Okla. 745. 797, 219 Fed. 648, C. C. A.

3. Special notice to an attorney is not (Annotated) | necessary before the rendition of a judg

ment disbarring ,him. State Bar CommisASSUMPTION OF RISKS.

sion ex rel. Williams v. Sullivan, L.R.A. By employee, see Master and Servant, 1915D, 1218, 131 Pac. 703, 35 Okla. 745. 8.

4. Proceedings to disbar an attorney By one depositing goods in warehouse, cannot be defeated because the committee see Warehousemen, 2.

presenting the charges had no authority to

do so from any other person or body. State ATTACHMENT.

Bar Commission ex rel. Williams v. SulliAs to garnishment, see Garnishment. van, L.R.A.1915D, 1218, 131 Pac. 703, 35 What property subject to, see Levy and Okla. 745. Seizure, i.

5. In disbarment proceedings instituted Limitation of time of action against by the state bar commission by the order

sheriff for failure to return attach- and direction of the supreme court, no ment, see Limitation of Actions, 2. verification of the specification of charges A statute giving foreign corporations of Oklahoma. State Bar Commission ex rel.

is necessary under $ 267, Comp. Laws 1909 which comply with the local laws all the Williams v. Sullivan, L.R.A.1915D, 1218, rights and privileges of like domestic corporations, and subjecting them to the laws 131 Pac. 703, 35 Okla. 745. of the state applicable to like domestic cor

6. The sufficiency of the verification of porations, does not exempt them from the the specification of charges in disbarment operation of the statute authorizing an at proceedings must be determined by an intachment in actions against defendants not spection of it, and evidence cannot be taken residing in the state. Jennings v Idaho had no personal knowledge as to the charges.

for the purpose of showing that the affiant R. L. & P. Co, L.R.A.19 5D, 115, 146 Pac. State Bar Commission ex rel. Williams v. 101, 26 Idaho, 703.

Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, (Annotated)

35 Okla. 745.

7. Failure of the court to order the filATTORNEYS. Liability of municipality for attorneys'

ing of charges for disbarment of an attorfees, see Municipal Corporations, 2. ney is not available to accused after the District and prosecuting attorneys, see

court has taken jurisdiction and tried the District and Prosecuting Attorneys. liams v. Sullivan, L.R.A.1915D, 1218, 131

State Bar Commission ex rel. WilSlander by, see Libel and Slander, 3.

Pac. 703, 35 Okla. 745. Disbarment.

8. Proceedings against an attorney for Inherent power of court to disbar, see criminal libel upon the court does not pre. Courts, 1.

vent his disbarment for the same offense. Admissibility of evidence, see Evidence, State Bar Commission ex rel. Williams v. 43.

Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, Sufficiency of proof, see Evidence, 46. 35 Okla. 745. Right to trial by jury, see Jury, 1. Defense of bar of limitation, see Limi- ATTRACTIVE NUISANCE. tation of Actions, 1.

See Negligence, 2-4. 1. The obligation which attorneys assume when they are admitted to the bar is

AUDITOR. not simply to be obedient to the Constitution

Presumption of truth of certificate by, and laws, but to maintain at all times the

see Evidence, 19. respect due the courts of justice and judicial

Sufficiency of auditor's findings to susofficers and this obligation includes abstaining out of court from insulting language

tain verdict by jury, see Evidence,

44. and offensive conduct toward the judges personally for their judicial acts. State

AUTOMOBILES. Bar Commission ex rel. Williams v. Sullivan, L.R.A.1915D, 1218, 131 Pac. 703, 35

Regulation of use and construction of Okla. 745.

garage, see Buildings, 1-4; Con

stitutional Law, 17; Municipal 2. An attorney may criticize the courts so long as his criticisms are made in good

Corporations, 6, 11.

Insurance on, see Insurance, 10, 12, 13. faith and in respectful language, but the

Lien for repairs on, see Liens, 4, 5. printing and publication of a pamphlet falsely, purposely, and maliciously attacking License; registration. the integrity of the courts and judges there- Discrimination in license tax, see Liof, designed to wilfully, purposely, and

cense, 3. maliciously misrepresent the courts and the Reasonableness of license tax, see Lijudges thereof, and bring them into dis

cense, 4. repute and lessen the respect due them, 1. The fact that the operator of an au



tomobile upon the street of a city does not | BAGGAGE. have a license as required by an ordinance In general, see Carriers, 7. does not prevent his recovery of damages for injury suffered through another's neg. BAILMENT. ligence. Armstead v. Lounsberry, L.R.A. As to warehousemen, see Warehouse1915D, 628, 151 N. W. 542, 129 Minn. 34.

(Annotated) 2. The fact that an automobile is not BANKS. registered as required by law does not pre- Refusal of cashier to answer questions vent a recovery by the owner of damages for

propounded by grand jury, see injury suffered through another's negli

Contempt, 3, 4. Lence. Armstead v. Lounsberry, L.R.A.

Fraud in securing subscription to stock, 1915D, 628, 151 N. W. 542, 129 Minn. 34.

see Corporations, 11. Negligence in use of.

Estoppel to deny entries on books of New trial in action for injury, see New

bank or sworn statements, see EsTrial, 1.

toppel, 2. 3. The law of the road does not apply Usury in bank transaction, see Usury, in case of an automobile turning around

1. in the street. Armstead v. Lounsberry, L.R.A.1915D, 628, 151 N. W. 542, 129 Minn. Deposits generally.

1. The proceeds of a draft which, with 34. 4. An automobile in good condition is bank in whose favor it is drawn, and by it

a bill of lading attached, is delivered to the not such a dangerous instrument that one forwarded to a correspondent bank for letting it for hire must test the competency collection, and immediate credit given to and skill of a customer before intrusting the drawer of the draft while in the hands him with it, under penalty of liability for of the correspondent bank, are to be reinjuries done by the hirer’s negligence, garded as belonging to the payee named in Neubrand v. Kraft, L.R.A.1915D, 691, 151 | the draft, as against a creditor of the deX. W. 455, lowa,


positor who attempts to reach them by 5. The keeper of a motor car livery is garnishment after the account, as increased not liable for injury done by a car through by the deposit, has been overdrawn; and the negligence of one to whom he let it with this is true notwithstanding the practice of knowledge that the hirer had no acquaint. the first-named bank to charge its deance with the operation of that makes of positors with the interest on such items cars. Neubrand v. Kraft, L.R.A.1915D, 691, from the time of giving credit until the 151 X. W. 455, Iowa,

proceeds are actually received and to charge 6. Evidence that the driver of an au- back their amount in the event of nonpay. tomobile on a public street, who, when he ment; and notwithstanding that a serial saw another automobile in front of him number is placed on said draft by the headed in the same direction commence to original bank in sending it out for collecturn in the street,-practically the whole tion, and that a witness testifies to a genwidth of the street being required to make eral practice of bankers to place such numthe turn,-instead of stopping his car and bers upon items received for collection, but avoiding a collision, as he could have done, not upon those accepted as cash. Scott v. increased his speed and attempted to pass W. H. McIntyre Co. L.R.A.1915D, 139, 144 ahead of the turning car before it should Pac, 1002, 93 Kan. 508. reach the left curb, is suflicient to charge Payment of checks; forgeries. the driver with negligence. Armstead v. 2. A bank which pays upon the checks Lounsberry, L.R.A.1915D, 628, 151 N. W. of the wife alone a man's money deposited 542, 129 Vinn. 34.

to the joint account of himself and wife is 7. A city ordinance requiring the driver i liable to him therefor except so far as he of an automobile to look to the rear before may have ratified the checks or received turning is complied with when one riding the benefit of them. Gish Bkg. Co, v. Leachwith him looks and then directs him to go man, L.R.A.1915D, 920, 174 S. W. 492, aliead. Armstead V. Lounsberry, L.R.A. Ky.

(Annotated) 1915D, 628, 151 V. 11. 542. 129 Minn. 34. 3. A bank which pays a check upon Contributor's negligence.

itself, the signature of drawer and indorser 8. Violation of a statute fixing under upon which are forged, cannot recover the penalty a speed limit for automobiles on a amount paid from the bank which originally highway does not deprive one of the de- cashed the check, although it indorsed there. fense of contributory negligence on the part on “all prior indorsements guaranteed.” of one injured by collision with the automo. State Bank v. Cumberland Sav. & T. Co. bile, unless lis conduct is such under all L.R.A.1915D, 1138, 85 S. E. 5, 168 X. C. the circumstances as to amount to gross 605. negligence. Ludke v. Burek, L.R.A.1915D, 4. A bank depositor whose clerk has 968, 152 N. W. 190, 160 Wis. 440. charge of the account is negligent in com

(Annotated) paring only the vouchers returned to him

when his account is balanced from time to AUTOPSY.

time without looking at the check list or Stipulation as to, in insurance policy, the balance in the pass book, so that, in case see Insurance, 16-19.

checks have been forged by his clerk, and

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