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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 on
notes constituting part of the indebtedness of the corporation preferred
by the assignment. Worthen v. Griffith, 50.
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 Turn Verein, 798.
2 UNINCORPORATED ASSOCIATIONS—PROPERTY RIGHTS, HOW DECIDED.-A
contention between the members of an unincorporated association as
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 Turn Verein, 798.
See CORPORATIONS, 8; MINES,
See WHARVES, 2.
L. GARNISHMENT—WHEN NOT MAINTAINABLE. -A plaintiff in garnishment
I 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
case must thereafter proceed as other issues of fact, subject to notio.
by either party. Cluett v. Rosenthal, 446.
See CORPORATIONS, 14.
ATTORNEY AND CLIENT.
1. AUTHORITY TO GIVE INDEMNITY.-An attorney employed to bring sait
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 namo.
Swartz v. Morgan, 786.
2 Right OF ATTORNEY TO SUBSTITUTION. – If the attorneys representing a
banking corporation are dismissed upon a change of its officers, and a
new attorney appointed, he is entitled be substituted as attorney in
a prohibition proceeding by the bank to prevent the appointment of a
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.
See HUSBAND AND WIFE, 6.
BAIL 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 ho
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 can
afterward avail himself of the objection. Sedgewick v. Houston, 165.
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, re-
ceives them as a bailee only, and the property in them is not changed
outil the price is paid. Brown v. Billington, 780.
2 SALE OR BALLMENT. -A dealer who receives goods under an agreement to
hold them in trust for another as the property of the latter, with liberty
to sell on his account, and to hand the proceeds to him to apply on the
purchase price, and for the payment of any other indebtedness due
from the dealer, takes no property in the goods, and they are not liable
for bis other debts. Brown v. Billington, 780.
8. NEGLIGENCE-EVIDENCE OF.-IN AN ACTION AGAINST A BAILEE for loss
and damage to property by accident, proof of the accident may afford
prima facie proof of negligence. Wintringham v. Hayes, 725.
4. BAILOR AND BAILEE—BURDEN OF PROOF AS TO CARE.-If a bailor proves
the condition in which he delivered his property to the bailee, the na-
ture of subsequent injuries suffered by it, and that they were not the
result of ordinary wear and tear, he makes out a prima facie case, and
the burden of proof shifts to the bailee if he had the property within his
exclusive control, and he must be held answerable for such injuries,
anless he can show that they were not the result of his want of proper
care. Wintringham v. Hayes, 725.
See RAILROADS, 7.
1. COLLECTIONS-TRUSTS.-A transaction by which a draft is sent to a bank
for collection and remittance, collected and the proceeds placed in its
vaults by the bank, it merely forwarding a draft in payment, establishes,
as between the correspondent and the bank, the relation of debtor and
creditor, and not that of cestui que trust and trustee. Bowman v. First
Nat. Bank, 870.
2 Trust Fundg.–Funds in the hands of a bank not impressed with a trust
See INSURANCE, 11, 12, 14
See INSURANCE, 6–14.
BILLS AND NOTES.
See NEGOTIABLE INSTRUMENTS.
BILLS OF EXCHANGE.
800 BANKS, 4; CHECKS, 1; NEGOTIABLE INSTRUMENTS.
BILLS OF REVIEW.
1. REVIEW OF DECREE. —A bill to review a decree of divorce, on the ground
of alleged errors of law apparent on the face of the record, may be filed
without first obtaining leave of court; but an erroneous order of court
to strike the bill from its files should not be reversed, unless prejudicial
to the appellant. Wood v. Wood, 42.
& In an attack opon a decree by a bill of review for errors of law, the court
cannot examine the evidence to see whether the decree is based upon a
correct finding of facts. In such case it is the sole duty of the court
to inquire whether the record, exclusive of the evidence, contains any
substantial error of law pointed out by the bill. Wood v. Wood, 42
1. COUPONS—NEGOTIABILITY.-Interest-bearing coupons attached to bonds
payable to bearer are, in legal effect, promissory notes, and possess all
the attributes of negotiable paper. Trustees v. Lewis, 209.
& COUPONS – NEGOTIABILITY - INTEREST.-Interest-bearing coupons ato
tached to bonds and payable to bearer may be detached and negotiated
separately by simple delivery, and sued on separately from the bond
after the latter has been paid, as well as before. Such coupons once
detached and negotiated cease to be mere incidents of the bond, and
become independent claims, carrying interest after inaturity. Trustees
V. Lewis, 209.
1. PAYMENT OF BEFORE MATURITY – FAILURE TO TAKE UP COUPONS.
The payment or cancellation of bonds before maturity to the holder
thereof does not affect the interest-bearing coupons payable to bearer,
and detached from the bonds, and transferred before maturity to, and
in the hands of, another bona fide holder. Trustees v. Lewis, 209.
NEGOTIABLE INSTRUMENTS--PAYMENT_FAILURE TO TAKE UP-COUPONS
A negotiable instrument paid before maturity should be surrendered to
the payer to prevent further negotiation, for, if payment is made to the
original payee and the instrument is not surrendered, but has been, or
is thereafter, transferred before maturity to a bona fide holder, with.
cat notice, such holder can recover thereon against the maker notwith..
standing such payment. This rule is here applied to interest coupons
detached from bonds and payable to bearer. Trustees v. Lewis, 209.
Soe ATTORNEY AND CLIENT, 1; OFFICERS, 7-8.
BOOKS OF ACCOUNT.
See EVIDENCE, 3, 12
1. A GRANT OF LAND BORDERING UPON A RIVER carries the exclusive
right and title in the river to the center thereof, subject to the right
of passage in the public, unless the terms of the grant specially in
dicate an intention on the part of the grantor to confine the grantee
to the edge or margin. Chicago v. Van Ingen, 285.
2. Iv Town LOTS ARE SOLD AND CONVEYED BY A MAP REPRESENTING
THEM AS FRONTING UPON A STREAM of water or designating such stream
As one of their boundaries, the purchaser becomes the owner of the
fee to the ceuter of the stream, with the right to maintain docks or
wharves out to the line of navigability. Of this right he cannot be die
vested without compensation first being made. Chicago v. Van Ingere,
See WATERS, 6.
WHEN ENTITLED TO COMMISSION - FAILURE OF TITLE-If an agent to
sell land agrees to pay a commission to a broker for procuring a par
chaser, and one is obtained, he is liable for the commission, though it
is then discovered that the land does not belong to the principal.
Such a mistake is not, in law, a mutual mistake which will avoid the
oontract to pay a commission on the sale. Barthell v. Peter, 906.
ARCHITECT, DECISION OF, WHEN FINAL.-If the parties to a building con.
tract agree that the architect shall pass upon the work and certify upon
the payments to be made his decision is binding, and can be attacked
only for fraud or evident mistake. If, in such a contract, provision is
made for payment of the price upon presentation of the architect's cer.
tificate, the obtaining of such certificate is a condition precedent to the
right to require payment, and to maintain an action therefor in case
payment is refused on the architect's certificate as to delay in perform.
ing work, and as to the damages recoverable therefor. If a building
contract specifies that the decision of the architect shall be binding in
case of any disagreement between the parties relating to the perform-
ance of any covenant therein, and that damages shall be allowed for
the nonperformance of the contract at the sum of fifty dollars for each
and every day the work remains undone after a date named therein,
which sum should be deducted from the contract price, the architect
is empowered to determine the extent to which delay was due to the
fault of the contractor, and to deduct from the amount of his certifi.
cate the fifty dollars for each day's delay for which he finds the come
tractor chargeable. Hennessy V. Metzger, 267.
See DAMAGES, 7.
BURDEN OF PROOF.
Soe BAILMENT, 4
Soe CORPORATIONS, 3-6.