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AMENDMENTS.
Seo APPRAL, 3; LES PENDENS, 7, &

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APPEAL
1. QUESTIONS OF LAW NOT ARGUED IN THE SUPREME COURT ARI DEEMED

TO BE WAIVED. Gulick v. Webb, 720.
& OBJECTION First RAISED ON APPEAL. — An objection that plaintiff

should have sued as administrator, instead of merely denominating
himself the administrator of deceased, and also that he failed to show
bis official character by a proper profert of his letters of administra.
tion, cannot be raised for the first time the appellate court, but
should be taken advantage of by way of motion in the lower court

Texarkana Gas etc. Co. v. Orr, 30.
* AMENDMENT TO CONFORM TO PROOF.-If an action by an administrator

for the death of his intestate, caused by negligence, is erroneously
brought for the benefit of the estate, instead of for the widow and next
of kin, the appellate court must, in the absence of demurrer, treat the
case as it was treated by the parties in the court below, as being •
claim by the administrator for injury to the deceased in his lifetime,
and consider the complaint as amended to correspond with the proof.

Texarkana Gas etc. Co. v. Orr, 30.
JURY TRIAL-ERRONEOUS Conducr of COUNSEL IN ARGUMENT.-Lan.
guage used by counsel which evinces a studied purpose to arouse the
prejudice of the jury, based upon facts not in the case, is ground for

the reversal of the verdict and judgment. Cluett v. Rosenthal, 446.
& JURY TRIAL-INSTRUCTioNs. It is not error for the court to refuse to

give an instruction fully covered in the general charge. Gibson v.

Minneopolis etc. Ry. Co., 482.
6. A VERDICT WILL NOT BE DISTURBED ON APPEAL if there is any evidence

to support it. Gibson v. Minneapolis elc. Ry. Co., 482.7
7. APPEAL FROM JUDGMENT MODIFIED ON APPEAL.-An order of the trial

court modifying a judgment in accordance with the directions of the
supreme court made on a prior appeal, and the judgment as modified,
are both appealable, and appeals taken therefrom will not be dismissed
on the ground that they are frivolous, Randall v. Duff, 79.

See Bills or Review; CERTIORARI; HABEAS CORPUS, lo

APPRAISEMENT.
See EXECUTORS AND ADMINISTRATORS, &

APPROPRIATION.
See Waters, 10, 11.

ARCHITECT.
See BUILDING CONTRACTS

ARREST.
4. PROBABLE CAUSE FOR Exists if there is such a state of facts us would

load a man of ordinary care and prudence to believe, or entertain an
honest and strong suspicion, that the person about to be arrested in
guilty of the offense charged. People v. Kilvington, 73.

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. PROBABLE CAUSE FOR-SUBMISSION OF FACTS TO JURY.-In the event of

conflicting evidence as to the facts of an arrest, it is the daty of the
court to instruct the jury what facts, if established, will constitute
probable cause, and submit to them only the question as to such facts.

People v. Kilvington, 73.
& PROBABLE Cause–QUESTION OF Law.-If a police officer, intending to

arrest a person, kills him the question whether he had probable cause
to believe, or reasonable grounds for suspicion, that the deceased had
committed a felony, is one of law for the court, where the facts are
undisputed. People v. Kılvinglon, 73.
A Peace OFFICER HAS THE Right, without a warrant, to arrest any per.
son in the night, when he has reasonable ground to believe that such

person has committed a felony. People v. Kilvinglon, 73.
8. ARREST OF FLEEING PERSON—EVIDENCE. – If a police officer not recog.

nizing a fleeing person, and not knowing any thing about his business,
shoots him while attempting to effect an arrest, evidence tending to
show that the deceased went on the particular night to the place near
where he was shot on lawful business is irrelevant and inadmissible.
People v. Kilvington, 73.
ARREST OF FLEEING Person CHARGED WITH THEFT.-The circnmstance
that a person is fleeing at night from one who is shouting "stop thief"!
affords a police officer as much reason to suspect or believe that he may
have committed robbery, or burglary, or grand larceny, as that he may
have merely committed petit larceny, and justifies an attempt to ar

rest. People v. Kilvingion, 73.
7. ARREST OF FLEEING Person — SHOOTING – CRIMINAL NEGLIGENCE.

Whether the act of a police afficer in shooting a fleeing person at night
in attempting to effect his arrest is or is not an act of criminal negli.
gence is a question for the jury, who must give the officer, upon the
trial of an information for murder, the benefit of any reasonable doubt
arising upon the evidence. People v. Kilvinglon, 73.

See HOMICIDE, 5.

ASSIGNMENT.
1. AssignMENT OF Part of CLAIM, DEMAND, OR OBLIGATION may be made,

and the courts will recognize and protect the equitable interest of the

assignee. Schilling v. Mullen, 475.
2. NOTICE OF AN ASSIGNMENT OF A DEMAND OR OBLIGATION, or a part

thereof, given to the debtor, fixes the rights of the parties, and pro-

tects the assignee. Schilling v. Mullen, 475.
& GARNISHMENT. - AN ASSIGNMENT OF A DEMAND 18 GOOD and sufficient

as against a subsequent garnishment, if such assignment was binding

upon the assignor. Metcalf v. Kincaid, 391.
4 AssignMENT OF PART OF DEMAND—NoticE_PAYMENT. - A debtor mak.

ing payment in full to his creditor after notice that a part of the obli.
gation has been assigned is still liable to the assignee for his share of the

claim. Schilling v. Mullen, 475.
8. ASSIGNMENT OF Part of CLAIM-Acrion.-If part of an obligation or de

mand has been assigned the assignee can maintain an action to recover
bis share by joining the assignor and assignee as plaintiffs; or, if the
former does not join, by making bim a defen«lant, so that the whole
controversy may be settled in one suit. Schulling v. Mullen, 475.

ASSIGNMENT OF WAQES – WHAT SUFFICIENT.-A letter or order directed
to the auditor of a railway corporation requesting him to pay to a person
named therein the salary of the writer during the ensuing six months,
accepted and partly acted upon by the corporation, is a sufficient as.
signment of such wages, if they thereafter accrue. All that is neces
sary to accomplish an assignment is that the intent to assign appear
from the writing or otherwise. The form is of little momento Metcalf

v. Kincaid, 391.
7. AN ASSIGNMENT OF FUTURE EARNINGS is sufficient to vest them in the

assignee as against attaching creditors, though there was no contract of
employment for any definite length of time, if the assignor was actually
at work at the time, under an engagement then existing at a fixed
price, under which he might reasonably expect to earn wages in the
future. Metcalf v. Kincaid, 391.

See HOMESTEAD, 8; LANDLORD AND TENANT, 3.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
2 BY CORPORATION.--An insolvent corporation has a right to make an

assignment in trust for the benefit of its creditors, and may exercise
such right to the same extent and in the saine manner as a natural
person, unless restricted by its charter or some statutory provision.

Worthen v. Griffith, 50.
2 WITHHOLDING ASSETS. — The withdrawal by a director of a corporation of

a portion of its assets for his own use at a time when the corporation is
hopelessly insolvent, and in contemplation of an assignment for the
benefit of creditors, does not of itself render a subsequent partial ag.
signment void, if the assignment does not tend in any way to promote
or cover up the acts of such director in reference to the withdrawal of

such assets. Worthen v. Griffith, 50.
& BY CORPORATION - ASSETS AS Trust FUND.-In those states where an

insolvent corporation may make preferences among its creditors by ag.
signment the rule that the property of the corporation is a trust fund
in the hands of its directors as a specific lien or direct trust does not
prevail, and it is only when a court of equity, at the instance of a
proper party, and in a proper proceeding, has taken possession of the
assets of the corporation, that such assets constitute a trust fund for its
creditors. Worthen v. Griffith, 50.
PREFERENCES.-An assignment by an insolvent corporation for the beno-
fit of creditors is not rendered void froin the fact that on the day the
assignment was instituted the corporation confessed judgment in favor
of bona fide creditors preferred in the assignment, and then entered its
appearance in an action by the assignee and such creditors, with con.
sent that the assignee should be appointed receiver of the assigned
property, so that it might be sold under order of court on terms pro-

hibited by the statute regulating asssignments. Worthen v. Griffith, 50.
B. PREFERENCES. -A corporation having the right to prefer one or more of

its creditors may do so by assignment, mortgage, or judgment, or by a
combination of these methods, so long as no fraud is perpetrated under

the pretense of securing the debt. Worthen v. Griffith, 50.
& BY CORPORATION—Preference to DIRECTOR.- A corporation having the

right to prefer its creditor by assignment may thus prefer a just debt
due from it to one of its directors. Worthen v. Griffith, 50.

7. BY CORPORATIONS_PREFERENCE TO DIRECTORS. —An assignment for the

benefit of creditors by an insolvent corporation with preferences is not
void from the fact that two of its directors are liable as indorsers OR
notes constituting part of the indebtedness of the corporation preferred
by the assignment Worthen v. Grifith, 50.

ASSOCIATIONS.
1. UNINOORPORATED ASSOCIATIONS — ACTIONS BY PARTIES. - In cases of

unincorporated associations whose membership is large, suits may be
brought by some of the members in their own names on behalf of, or
as representing all, or in the name of the association by certain of its
members. The former form is preferred. Lieder kranz Singing Soc v.

Germania T'urn Verein, 798.
& UNINCORPORATED ASSOCIATIONS—PROPERTY RIGHTS, How DECIDED.—A

contention between the members of an unincorporated association u
to the present right of possession of its property must be decided by
the constitution and by-laws of the association, or, in the absence of
any sufficient provision therein, by the majority of the members. The
right of possession in such case is generally joint and not several
Liederkranz Singing Soc. v. Germania Tuin Verein, 798.

See CORPORATIONS, 8; MINES.

ASSUMPSIT.
See WHARVES, 2.

ATTACHMENT.
L GARNISHMENT—WHEN NOT MAINTAINABLE. - A plaintiff in garnishment

can obtain no greater beneficial relief against the garnishee than tbe
judgment debtor is entitled to; and, if the debtor's recovery is limited
to a mere legal title, without beneficial interest or right of enjoyment

in himself, the proceeding must fail. Marx v. Parker, 849.
& GARNISHMENT OF Trust FONDS.-A judgment creditor cannot have his

debt satisfied out of property held in trust for another, no matter how
completely his debtor may have exercised apparent ownership over it,
unless it was upon the faith of such ownership that the credit was given.

Mara v. Parker, 849.
& GARNISHMENT or Trust FUNDS.—Moneys belonging in equity to a city,

but deposited in bank by one of the city's officers in his individual
name, cannot be garnished in a suit against him by his individual
creditors. Marx v. Parker, 849.
GARNISHMENT OF Trust Funng.--A public officer of a city, though rem
quired to give bond for the proper payment of moneys coming into his
hands officially, is a bailee and not a mere debtor of the city, and,
although he deposits such moneys in bank in his individual name, they
cannot be garnished at the suit of his individual creditors. Marx v.

Parker, 849.
6. GARNISHMENT-INTERVENTION.-Although a bank summoned as a gar-

nishee sets up that it has an account with the judgment debtor as a
depositor, but that the money thus on deposit belongs to a city baring
been collected by the judgment defendant in his official capacity as
marshal of such city, and held by the bank as such, it is error for the
court, of its own motion, to require the city to appear as an intervenor.
Marx v, Parker, 849.

& GARNISHMENT_WAIVER. -A garnishee defendant waives his right to have

the case tried as against him at the term at which judgment is ren.
dered against the principal defendants, by noticing the case for a sub-
sequent term, and in that term consenting that it be continued. The

must thereafter proceed as other issues of fact, ect to notion
by either party. Cluett v. Rosenthal, 446.

See CORPORATIONS, 14.

ATTORNEY AND CLIENT.
1. AUTHORITY TO Give INDEMNITY.-An attorney employed to bring suit

has authority to take all steps necessary in the regular course of the
litigation, and may give a bond of indemnity in his client's name.

Swartz v. Morgan, 786.
2 Right OF ATTORNEY TO SUBSTITUTION.- If the attorneys representing a

banking corporatioa are dismissed upon a change of its officers, and a
new attorney appointed, he is entitled to be substituted as attorney in
a prohibition proceeding by the bank to prevent the appointment of
receiver in a creditor's suit against it. The bank has a right to dismiss
such proceeding, and the attorneys disinissed cannot object that the
new attorney was retained for that purpose, or that he was also attor.

ney for the receiver. People's Home Sav. Bank v. Superior Court, 147.
& PRIVILEGED COMMUNICATIONS. Communications by several persons who

employ the same attorney in the same business, made by them to snch
attorney in relation to such business, while privileged as to their common

adversary, are not privileged as between themselves. Seip's Estate, 803.
4 PRIVILEGED COMMUNICATIONS. -An attorney employed by the husband

of one of three sisters equally interested in the subject matter of litiga.
tion is competent to testify in a subsequent contest between the sisters,
involving the same matter, as to who were the partners he represented,
and as to the declarations of the husband made during his lifetime,
showing for whom he acted in employing the attorney and managing
the litigation. Seip's Estate, 803.

See AGENCY, 4.

ATTORNEY'S FEES.
See HUSBAND AND WIFE, 5.

BAIL.
BALL IN CIVIL ACTIONS — AFFIDAVIT – WHEN MUST BE OBJECTED TO.-

An affidavit prescribed by statute to hold a defendant to bail in a civil
action is a part of the process to bring him into court. Any objection
to it on the ground of defect, deficiency, or irregularity may and must
be taken advantage of by the defendant in the first instance before he
has given bail or entered appearance. If he fails to do so he must be
considered to have waived his objection, and neither he nor his bail cao
afterward avail himself of the objection. Sedgewick v. Houston, 165.

BAILMENT.
1. SALE OR BAILMENT. – A person who receives goods under an agreemont by

which he is to keep them a certain period, and, if he pays for them, is
to become the owner, but otherwise is to pay for the use of them, ro-
ceives them as a bailee only, and the property in them is not changed
until the price is paid. Brown v. Billinglon, 780.

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