ASSAULT AND BATTERY. See TRESPASS, 1, 2.

ASSUMPSIT.

WHEN A PROPER FORM OF ACTION.

1. Contract under seal. Where a contract under seal has afterwards been varied in its terms by a distinct simple contract, made upon a suf ficient consideration, such substituted or new agreement must be the subject of an action of assumpsit, and not of an action of covenant. Daegling v. Schwartz, 320.

2. Where a contract under seal contains a provision for the modification of the design of the work to be performed under it, but no provision for an extension of the time of performance on account of any such modification, and such modifications are made, and by parol agreement the time for the performance is extended in consideration thereof, such extension of time makes it a new contract upon which the action of assumpsit will lie. Ibid. 320.

ATTACHMENTS.

RIGHTS ACQUIRED BY CREDITOR.

1. Not greater than his debtor. An attaching creditor can not acquire through his attachment any higher or better right to the property or assets attached than the defendant had when the attachment was made, unless he can show some fraud or collusion by which his rights were impaired. Samuel v. Agnew, 553.

WHO CONCLUDED BY JUDGMENT.

2. A person whose goods have been improperly seized under a writ of attachment, and who is no party to the suit, is not concluded by the judgment in the attachment, and may replevy the same from the officer. Ibid. 553.

FAILURE TO COMPLY WITH DECREE.

3. Attachment therefor. See DIVORCE AND ALIMONY, 12.

BANK CHECK.

RIGHTS OF HOLDER AGAINST BANK.

1. Payee or assignee may recover the amount from drawee. Where a depositor draws his check on his banker, who has funds to an equal or greater sum than his check, it operates to transfer the sum named to the payee, who may sue for and recover the amount from the bank, and a transfer of the check carries with it the title to the amount named in the check to each successive holder. Union National Bank v. Oceana County Bank, 212.

2. Drawer can not countermand so as to affect it in hands of bona fide holder. After a check has passed into the hands of a bona fide holder, it is not in the power of the drawer to countermand the order of payment. Ibid. 212.

BANKRUPTCY.

WHAT DEBTS DISCHARGED.

1. Debt contracted through fraud not discharged. If goods are sold for cash on delivery, and the purchaser obtains their possession without payment, and immediately ships them beyond the reach of the seller and then refuses to pay, his conduct may be regarded as fraud in the creation of the debt, as contemplated by the 23d section of the Bankrupt Act, and his discharge will not release him. Classen v. Schonemann et al. 304.

OF A NEW PROMISE TO PAY.

2. If a debtor, after his discharge in bankruptcy, makes a new promise to pay the debt, then his discharge will not preclude a recovery. Ibid. 304.

JURISDICTION OF THE PERSON.

3. Whether acquired. On the petition of all the members of a partnership, except one, to have the firm declared bankrupt, the only service on the partner refusing to join in the petition was a personal service made in another State, and beyond the jurisdiction of the court in which the proceedings were had: Held, that the court acquired no jurisdiction over such partner, and the adjudication as to him was void. Isett v. Stuart, 404.

ASSIGNEE OF BANKRUPT.

4. Holds real estate of deceased bankrupt in trust for his heirs after debts are barred. Where the owner of real estate is adjudged a bankrupt, and an assignee is appointed, and no claims are filed and proved against the estate, and the Statute of Limitations has run against all his debts, and the bankrupt is dead, the assignee holds the real estate of the bankrupt as a naked trustee for the heirs of the bankrupt. Harris et al. v. Cornell et al. 54.

EFFECT OF DISCHARGE ON CREDITOR'S BILL. See CHANCERY, 9.
JURISDICTION OF STATE COURTS.

To enforce rights under. See JURISDICTION, 4.

BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF EXCEPTIONS.

BOARD OF TRADE.

A VOLUNTARY ASSOCIATION.

1. Not controlled by courts. The board of trade of Chicago, though incorporated under an act of the General Assembly, is merely a voluntary organization, which is fully empowered by its charter to govern in such mode as it may deem most advisable and proper, and when it has adopted by-laws and a forum for their enforcement, the courts will not interfere to control their action. The People ex rel. v. Board of Trade, 134.

BOARD OF TRADE. A VOLUNTARY ASSOCIATION. Continued.

2. So, where a member of the board of trade was, under and in pur suance of the by-laws thereof, expelled, the court properly refused to award a writ of mandamus to compel the board to admit him to membership in the organization. The People ex rel. v. Board of Trade, 134.

BURDEN OF PROOF. See EVIDENCE, 26, 27, 28.

CANAL COMPANY.

OF ITS DUTIES.

1. Not required to draw off water periodically for inspection of bed. A canal company is not required to have the water drawn off periodically, in order that the bed of the canal may be inspected; and if, after the bed of the canal is cleaned out, a rock is deposited there, by reason of a "slide" from some point near the slope of the land, the company will not be liable for damage done to boats thereby. Byrne v. City of Chicago, 195.

CARRIERS.

FAILURE TO DISCLOSE VALUE OF GOODS.

1. If the shipper is not guilty of any improper concealment of the contents of boxes shipped, or their value, or other improper conduct, it is the duty of the carrier to inquire as to the nature and value of the goods shipped; and if it does not make any such inquiry, and there is no improper conduct on the part of the shipper, it can not escape liability for loss. Merchants' Despatch Transportation Co. v. Bolles, 473. WHERE THERE ARE SUCCESSIVE LINES.

2. Of delay in delivering to succeeding line. If fruit trees and shrubbery are destroyed by the cold, in the hands of an intermediate carrier, by reason of negligence or unreasonable delay, or if, by such delay in transportation or in delivering to the next carrier in the line, the latter can not, by reasonable efforts, transport and deliver before they are destroyed by cold weather, the former carrier will be liable for the loss. Michigan Central Railroad Co. v. Curtis, 324.

3. Although a carrier may be guilty of unreasonable delay in transportation, he will not be liable for a loss caused by cold weather, if he delivers the freight to the next company in the line in sufficient time for it, by reasonable diligence, to transport and deliver to the consignee before injury by the cold. Ibid. 324.

4. Excuse for delay in delivery to next carrier. Where fruit and ornamental trees shipped were destroyed by frost before reaching their destination, and this was caused by delay of transportation to Chicago, where they were to pass into the hands of another line, the fact that the company's buildings in Chicago were destroyed by fire, will not furnish a sufficient excuse for the delay, where it appears that other shipments,

CARRIERS. WHERE THERE ARE SUCCESSIVE LINES. Continued.

made afterwards, went through in time, and were delivered to the other line. Michigan Central Railroad Co. v. Curtis, 324.

5. Duty controlled by custom. Where it is the custom of a railway company, to whom freight is delivered in the car of another line for transportation, not to receive and forward the same until expense bills are delivered by the preceding line, with directions, the first company, being conversant with the rule, can not be regarded as having delivered a car of freight before complying with such custom, and thus exonerate itself from loss occasioned by the delay. Ibid. 324.

6. Liability of first carrier does not cease until goods are delivered to next carrier in the line of transportation. Where a carrier receives goods for transportation marked to a place beyond the terminus of its line, without any special contract, its liability as an insurer will continue until it delivers them to a connecting carrier. If burned in its warehouse before such delivery, it will be liable for their value. Merchants' Despatch Transportation Co. v. Bolles, 473.

LIMITATION OF LIABILITY.

7. When it extends to each connecting carrier. It is only where the contract is for through transportation, that each connecting carrier will be entitled to the benefits and exemptions of the contract between the shipper and the first carrier. Ibid. 473.

8. But where a railway company, having printed blanks for receipts for transporting goods over its road, and by other companies, to one place, received goods to be carried to a different place, and at its ter minus to be delivered to a different company, receipted for the goods, and, without erasing the names of the other companies, used words of exemption from liability, they being, "between the shipper and the above named companies:" Held, that the company receiving the goods from the railway company not being one of “the above named companies," could not take the benefit of the exemptions in the receipt given. Ibid. 473.

TO WHOM DELIVERY TO BE MADE.

9. A common carrier may usually deliver goods to the consignee on the terms specified, or if refused by the consignee, he may return them to the consignor, or if the title has changed after receiving them, or if neither the consignor nor the consignee had title to the property when he received it, he may absolve himself from the duties of a common carrier by delivering it to the true owner. American Express Co. v. Greenhalgh, 68.

10. When a common carrier delivers goods to one other than the consignee or consignor, he does so at his peril, and it devolves upon him to prove that he has delivered them to the real owner. Ibid. 68.

11. Goods were delivered to an express company, marked "C. O. D." to be carried to the consignee. The consignee paid the express charges, but refused to receive the goods, and directed the company to return

CARRIERS. TO WHOM DELIVERY TO BE MADE. Continued.

them to the consignor. The consignor brought suit against the consignee, and recovered a judgment for the value of the goods, but in the meantime, after a verdict was rendered in favor of the consignor, and before judgment was rendered thereon, the express company, by direction of the consignor's attorney, returned the goods to the consignor. The consignee never countermanded his directions to the company to re-ship to the consignor. When final judgment was rendered, the consignee brought an action of trover against the company to recover the value of the goods, without offering to pay the $250: Held, that the consignee had no right of action against the company. American Express Co. v. Greenhalgh, 68.

12. In such case, if the consignee had notified the company that he had been sued for the value of the goods, and required it to hold them, and not deliver to the consignor until the litigation ended, it seems that a different question would be presented; but it was not the duty of the company to seek the owner, nor was it its duty, unasked and unwarned, to seek to protect the contingent future interests of the consignee. Ibid. 68.

CHANCERY.

BILL FOR DIVORCE AND PARTITION.

1. A wife, who is seized of an estate by the entirety with her hus band, may include, in a bill against him for a divorce, a prayer for a partition of the land which, by virtue of the divorce, will become their property as tenants in common, as well as for alimony out of his portion of the property, and may also make all parties claiming any interest in the land through or under any pretended or real conveyance from her and her husband, or either of them, and settle all the rights of the parties in the one suit. Harrer et al. v. Wallner, 197. IMPEACHING DECREE.

2. On ground of fraud and perjured testimony in obtaining it. A decree was obtained directing a sheriff to execute a deed, in pursuance of a sale made under an execution which was, in fact, issued by a court which had been abolished, but which, in the bill upon which the decree was rendered, was falsely alleged to have been issued out of a court to which the jurisdiction of the abolished court had been transferred, and there was no defense made, the cause referred to the master, and a wit ness testified before him that there was no deed for the land in controversy, appearing of record, to one of the non-resident defendants, when, in fact, such deed was, and had been for nearly twenty years, on record, and the master accordingly reported that said non-resident defendant had no title to the land. Upon a bill filed by the heirs of the non-resident defendant, to impeach this decree for fraud and perjured testimony in procuring it, setting up these facts and showing that before the bill was filed on which said decree was rendered, the non-resident defendant, to whom the deed of record appeared to have been made, had been