the judgment on behalf of another defendant, who did not appeal.-Sullivan v. Doyle, 194 S. W. 136.
See Appeal and Error,
ARBITRATION AND AWARD.
1175(3) (Tex.Civ.App.) In action on a fire policy where court should have instructed a verdict for defendant because plaintiff did not show See Insurance, 563-574. an insurable interest, held, that the appellate court will render judgment for defendant.-St.
Paul Fire & Marine Ins. Co. v. McQuary, 1943 (Ky.) Where fiscal court ratified contract
1180(3) (Tex. Civ.App.) Reversal on appeal by a defendant from judgment for plaintiff in trespass to try title affects only them and those parties to the suit, who were interested in the issues in litigation between them.-Ketchum v. Boggs, 194 S. W. 201.
There is no jurisdiction on appeal by a defendant in trespass to try title from judgment for plaintiff to even affirm for nonappeal judgment on a cross-bill by another defendant making others parties, and raising different issues from those between plaintiff and the appealing defendant.-Id.
of unauthorized agent for extras in building of county courthouse, claim for such extras was proper subject of arbitration.-Carter v. Krueger & Son, 194 S. W. 553.
6 (Ky.) Submission to arbitration of “differences in settlement of accounts between county fiscal court and (a contractor) arising over building of a new courthouse for said county" held not void for uncertainty.-Carter v. Krueger & Son, 194 S. W. 553.
73 (Tex.Civ.App.) In view of Rev. St. 1911, arts. 56-70, held that, when an award is entered, party cannot appeal unless the right is reserved in the agreement to arbitrate.-Eubank v. Bostick, 194 S. W. 214.
78 (Tex.Civ.App.) Where it is sought to set aside an award by arbitrators on grounds of fraud, partiality or mistake, the facts constituting objection to award must be specifically aver
(E) Rendition, Form, and Entry of Judg- red.-Eubank v. Bostick, 194 S. W. 214.
1185 (Ky.) An intervener whose appeal was inadvertently affirmed on the opinion rendered on the hearing of plaintiff's appeal is entitled to have the order of affirmance as to her appeal set aside.-McCoy v. Carran, 194 S. W. 344.
(F) Mandate and Proceedings in Lower
195(1) (Ark.) Opinion on former appeal is law of case, binding on trial court.-Watkins v. Special School Dist. of Lepanto, 194 S. W. 32.
195(1) (Ky.) The opinion on appeal, on reversal for errors in instructions, states the law of the case on subsequent trials, under the same pleadings and substantially the same evidence. Title Guaranty & Surety Co. v. Hay, 194 S. W. 922.
1199 (Tex. Civ.App.) Bill of review will lie in district court after judgment of an appellate court and after mandate has been issued for observance, without leave granted by appellate court.-Houston E. & W. T. Ry. Co. v. Cavanaugh, 194 S. W. 642.
II. ON CRIMINAL CHARGES.
63(2) (Tex.Cr.App.) It was city marshal's duty to arrest prostitute if her conduct on street was contrary to law, but he had no authority to assault her when she remarked that she thought "he had it in for her."-Hudley v. State, 194 S. W. 160.
ASSAULT AND BATTERY.
19(3) (Ark.) Where defendant moved to quash the service he did not waive objection to the court's jurisdiction of his person by there- See Homicide, 257, 310. after filing an answer in which he preserved such protest, and by cross-examining plaintiff's witnesses. Cox Inv. Co. v. Major Stave Co.,
See Damages, 206-221; Insurance, Municipal Corporations, tion, 362-494.
ASSIGNMENT OF ERRORS.
20 (Tex.) Where one defendant entered his appearance in the main cause, he was before the court for all purposes, and another defendant, who brought a cross-action, was entitled to judgment against him without the necessity of See Appeal and Error, ~719–747. citation. Sullivan v. Doyle, 194 S. W. 136.
APPLICATION.
See Banks and Banking, 134.
APPROPRIATION.
See Eminent Domain, 47.
See Assignments for Benefit of Creditors; Insurance, 215; Landlord and Tenant. 76-802; Mortgages, 258, 270; United States; Vendor and Purchaser, 261.
I. REQUISITES AND VALIDITY. (B) Mode and Sufficiency of Assignment. 58 (Tex.Civ.App.) Where, in acceptance of an order drawn upon it, defendant school district agreed to pay plaintiff what was due con
tractor on completion of work to satisfaction of building committee, plaintiff could not recover where contractor had not completed building according to agreement.-Lyon-Gray Lumber Co. v. Wichita Falls Brick & Tile Co., 194 S. W. 1167.
ber must exhaust the remedies provided by the associations itself through its constitution and by-laws before applying to a court of equity for relief.-Brown v. Harris County Medical Soc., 194 S. W. 1179.
ASSUMPSIT, ACTION OF.
129 (Tex.Civ.App.) Though plaintiff has as- See Account Stated; Work and Labor. signed to his attorneys an interest in his cause of action for personal injury, they need not be made formal parties plaintiff; they filing a pleading that they are representing plaintiff on the trial, and agree to be bound by any judgment; as though formal parties.-Missouri, K. & T. Ry. Co. v. Hicks, 194 S. W. 1145.
See Master and Servant, 295.
See Exemptions; Garnishment; Homestead; Justices of the Peace, 86.
I. NATURE AND GROUNDS. (B) Grounds of Attachment. 40 (Mo.App.) The statutory ground for at- tachment relating to property fraudulently as- signed refers only to written assignments, and is inapplicable to a verbal sale of goods, espe- cially as another ground for attachment covers property fraudulently disposed of.-Douglass Candy Co. v. Shenk, 194 S. W. 754.
VI. PROCEEDINGS TO SUPPORT OR ENFORCE.
211 (Ky.) Where defendant did not deny allegation in affidavit that she and her codefendjudgment, or that collection would be endangerants did not have property in state to satisfy ed by delay and return of no property found, court properly sustained attachment as against defendant.-Daugherty v. Bell Nat. Bank, 194 S. W. 545.
VIII. CLAIMS BY THIRD PERSONS. 308(2) (Ky.) Burden is on claimant of attached property to prove superiority of title.Daugherty v. Bell Nat. Bank, 194 S. W. 545.
ATTORNEY AND CLIENT.
See Appeal and Error, 207, 1060; Assignments, 129; Constitutional Law, ~276; Criminal Law, 719-730, 1037, 1055, 1171; District and Prosecuting Attorneys; Judges, 47; Trial, 120-133; Trusts, 103.
I. THE OFFICE OF ATTORNEY. (A) Admission to Practice.
340(3) (Ky.) To perfect a lien for supplies furnished to a company which made an assignment for benefit of creditors, no notice need be filed with the county clerk as provided by Ky. 7 (Tenn.) The question as to whether an St. § 2494, but some proceedings to enforce the lien must be begun within the 60-day period fixed by section 2491.-Rockcastle Lumber Co. v. Burns, 194 S. W. 95.
The filing of a verified claim for a lien for supplies furnished with the assignee for benefit of creditors within 60 days after the assignment is sufficient to protect the lien.-Id.
A stipulation in the contract appointing a creditors' committee that the property might be sold and the proceeds should stand in lieu of the property, and that none of the rights of creditors should be prejudiced thereby, does not excuse a lien claimant from taking the necessary legal steps to perfect his lien.-Id.
See Insurance, 718-819; Physicians and Surgeons, 9.
25 (Tex.Civ.App.) When persons form voluntary associations, and adopt rules, under which members may be admitted and expelled, such rules are articles of agreement to which all who have become members are parties.-Brown v. Harris County Medical Soc., 194 S. W. 1179.
10 (Tex.Civ.App.) Where voluntary association under its rules expels a member, such mem
applicant alleged to be in the practice of soliciting lawsuits and dividing fees is a proper person to be admitted as an attorney is for the determination of the state board of law examiners under Acts 1903, c. 247, § 5.-In re Bowers, 194 S. W. 1093.
9 (Tenn.) Acts 1903, c. 247, § 5, relating to the admission of attorneys to practice, contemplates that the Supreme Court shall issue the license if the applicant is qualified as shown by the certificate of the state board of law examiners.-In re Bowers, 194 S. W. 1093.
(C) Suspension and Disbarment. 44(2) (Ky.) In order to make out a case under Ky. St. § 104, it is only necessary to show that attorney wrongfully neglected or refused after demand made of him in county of his resito pay over a client's money collected by him dence.-Denny v. Commonwealth, 194 S. W. 330. A disagreement between attorney and client as to costs and amount of his fee held not to justify retention by attorney of whole sum collected.-Id.
A delay for only a reasonable time to be determined by circumstances will not authorize suspension from practice.-Id.
Retention of money belonging to a client for
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
ten months after its collection and for three months after formal demand therefor was made upon attorney in county of his residence was an unreasonable delay.-Id.
154 (Tex.Civ.App.) An attorney has the right to apply money collected for his client to payment of any valid subsisting claim he has against her.-Doran v. Campbell, 194 S. W. 674.
165 (Tex.Civ.App.) The evidence which will support an express contract to pay an attor- ney's fee will not sustain recovery on a quan- tum meruit.-G. R. Scott, Boone & Pope v. Willis, 194 S. W. 220.
46 (Ky.) As purpose of Ky. St. § 104, is to require attorneys to maintain a high standard of conduct not only as trusted agents of clients, but as officers of court, mere reparation to client prior to commencement of proceedings un- der statute is no ground for dismissal of pro-166(1) (Mo.App.) Where compromise was ceeding.-Denny v. Commonwealth, 194 S. W.
~51 (Ky.) In a proceeding under Ky. St. § 104, providing for suspension of an attorney who shall collect money of his client and on de- 'mand wrongfully refuse to pay over same, rule held properly issued in name of the common- wealth. Denny v. Commonwealth, 194 S. W. 330.
Collection company which forwarded account to defendant for collection being interested in proceeds was a proper party to proceeding as relator.-Id.
As a proceeding under Ky. St. § 104. was properly brought in the name of the common- wealth on the relation of parties named, defend- ant's motion to require the commonwealth to elect in whose name it would prosecute pro- ceeding was properly refused.—Id.
proven, and defendant admitted signing written contract of compromise which would, under contract sued on by attorneys, entitle them to compensation, she has burden of showing that compromise made was not in pursuance of con- tract signed.-McCall v. Atchley, 194 S. W. 714.
166(2) (Mo.App.) In action by attorney on contingent fee contract, testimony of defendant that she was sick when she signed contract was inadmissible, where she admitted having signed with full knowledge of its provisions and coun- terclaimed upon its breach.-McCall v. Atchley, 194 S. W. 714.
189 (Mo.App.) An attorney held to have a valid lien, under Rev. St. 1909, § 965, to one- half the amount paid under a contract for com- pensation, where the client settled directly with the defendant in the action to which the con- tract related.-Gillespie v. American Car & Foundry Co., 194 S. W. 1064.
52 (Ky.) That information upon which sus- pension proceeding against an attorney based does not proceed in name of aggrieved client and does not comply with strict rules of pleading with reference to the caption held im-192(2) (Ark.) Under Act May 31, 1909 material.-Denny v. Commonwealth, 194 S. W.
53(1) (Ky.) In a proceeding under Ky. St. § 104. to suspend an attorney, where defendant agreed that the case should be submitted on rec- ord, affidavits upon which information was bas- ed which were a part of record were properly considered.-Denny v. Commonwealth, 194 S. W. 330.
57 (Ky.) In a proceeding under Ky. St. § 104, providing for the suspension of an attor- ney who shall collect money of his client and on demand wrongfully refuse to pay over same, er- ror in making collection company who forward account to defendant for collection a party held not prejudicial to defendant.-Denny v. Com- monwealth, 194 S. W. 330.
IV. COMPENSATION AND LIEN OF
(Laws 1909, p. 892), circuit court cannot en- force lien against damages recovered for benefit of estate of decedent in favor of attorney who entered into contract with administrator.-Car- penter v. Hazel, 194 S. W. 225.
ATTRACTIVE NUISANCE.
See Negligence, 39.
See Compromise and Settlement, 17: Con- stitutional Law, 287; Damages, 188; Highways, 184; Husband and Wife, 133, 149; Licenses, 1, 7, 14; Malicious Mischief, 9; Railroads, 348, 350; Statutes, 123; Trial, 252.
See Arbitration and Award, 73, 78.
BADGE OF FRAUD.
(A) Fees and Other Remuneration. 148(1) (Mo.App.) Under contract providing that attorneys are to have one-fourth of what is obtained by compromise or otherwise in con- test suit, held, that fee was not recoverable un- See Fraudulent Conveyances, 15. less compromise was of contest suit.-McCall v. Atchley, 194 S. W. 714.
II. IN CRIMINAL PROSECUTIONS.
64 (Tex.Cr.App.) An appeal bond not en- tered of record, but merely filed, will not an- swer the purposes of the recognizance required to perfect an appeal.-Bennett v. State, 194 S. W. 145.
149 (Mo.App.) Under contract providing that attorneys are to have one-fourth of what- ever is recovered by compromise or otherwise in contest suit, failure of attorneys to subpoena witness where requested by client not to do so will not defeat their right to recover one-fourth of whatever is obtained by client in compro- mise of contest suit while it is pending.-Mc-72 (Tex.Cr.App.) Under Acts 29th Leg. c. Call v. Atchley, 194 S. W. 714. 115. held, that an appellant who had entered 150 (Mo.App.) Under contract providing no recognizance below cannot be permitted to that attorneys are to receive one-fourth of enter into and file a recognizance in the Court whatever is recovered by them for client in said of Criminal Appeals.-Bennett v. State, 194 S. action by compromise or otherwise, attorneys W. 145. are entitled to recover, although client obtains secret voluntary compromise while action is pending.-McCall v. Atchley, 194 S. W. 714.
153 (Mo.App.) in action by attorney to re- cover contingent fee, client is not entitled to damages on counterclaim for breach where it appears that she was willing that attorney should fail to perform.-McCall v. Atchley, 194 S. W. 714.
79(1) (Tex.Cr.App.) Final forfeiture of bail bond held erroneous under Code Cr. Proc. 1911, art. 500, subd. 3, on evidence of sickness at time of forfeiture and subsequent appearance.-Thod- berg v. State, 194 S. W. 1108.
See Assignments for Benefit of Creditors.
I. CONTROL AND REGULATION IN GENERAL.
12 (Tenn.) A bank held not subject to the license tax imposed on pawnbrokers, though it occasionally made loans on the pledge of per- sonal chattels,-Provident Loan Bank v. Par- ham, 194 S. W. 570.
III. FUNCTIONS AND DEALINGS. (B) Representation of Bank by Officers and Agents.
bank to payment of note already paid, evidence held insufficient to show that note had been paid.-Ohio Valley Banking & Trust Co. v. Nichols, 194 S. W. 117.
154(9) (Tex.Civ.App.) In action to recover a bank deposit, ownership of fund held a jury question.-Cozart v. Western Nat. Bank of Ft. Worth. 194 S. W. 644.
Evidence that money deposited with defendant bank was credited to order of proposed bank and that defendant's cashier so stated makes jury question whether money was deposited for pro- posed bank or for depositor's individual bene- fit.-Id. BAR.
>116(4) (Mo.App.) Fact that bank cashier and bookkeeper were members of a partnership will not impute knowledge of partnership's dis- See Judgment, 565-640. solution to the bank so as to defeat recovery from other partners for money borrowed on firm note after dissolution.-Citizens' Trust Co. v. Tindle, 194 S. W. 1066.
See Exchange of Property.
BENEFICIAL ASSOCIATIONS.
131 (Tex. Civ.App.) Ordinarily, where one See Associations; Insurance, 718-819. person deposits money in bank to another's credit, bank is debtor of designated principal, and not of depositor.-Cozart v. Western Nat. Bank of Ft. Worth, 194 S. W. 644.
134(1) (Tex.Civ.App.) Where plaintiff re- covered for bank's failure to honor checks, the bank having accepted drafts on plaintiff's pur- chasers but applied amount on other indebted- ness, bank should have been allowed difference between amount of drafts and plaintiff's checks. -First Nat. Bank v. Mangum, 194 S. W. 647.
See Municipal Corporations, BEST AND SECONDARY EVIDENCE. See Evidence, 157–183.
134(2) (Tex.) A bank cannot set off a de- positor's unmatured note to it against his de- posit merely because he is a nonresident; there See Municipal Corporations, 335. being no proof of his insolvency.-Stockyards Nat. Bank v. Presnall, 194 S. W. 384.
138 (Tex.) Drawee bank held not entitled
to avoid liability to drawer of check made to See Exceptions, Bill of. fictitious person, due to false representations and a swindling scheme, on theory that drawer intended check to be paid when signed by name written in the check as payee.-Guaranty State Bank & Trust Co. v. Lively, 194 S. W. 937.
A check payable to a fictitious person without the knowledge of the maker is not payable to bearer, and it is the duty of the bank to ascer- tain the existence and identity of the payee, and, failing to do so, to refuse payment.-Id.
See Banks and Banking, 138; Cancellation of Instruments, 11; Carriers, 58; Cor- porations, 92; Judgment, 250; Mort- gages, 258; Partnership, 146, 286.
RIGHTS AND LIABILITIES ON IN- DORSEMENT OR TRANSFER. (B) Indorsement for Transfer.
154(5) (Ky.) Whether bank in applying de- positor's funds to payment of his note diverted funds presents issue of payment of note, since under the circumstances there could be no di- version if note had not been paid.--Ohio Val-301 (Tex. Civ.App.) Relation between in- ley Banking & Trust Co. v. Nichols, 194 S. W. dorser and maker of note, even after liability of indorser is fixed by protest or waiver, is very similar to that of principal and surety, and most acts which will discharge one will dis- charge other.-Nunn v. Smith, 194 S. W. 406.
Where note and mortgage were given and payee indorsed note, by such indorsement he impliedly agreed that he was satisfied with transaction, and indorsee could accept the se- curity as tendered and rely on indorsement, on which he could recover; though the security was lost owing to failure to record mortgage. --Id. (D) Bona Fide Purchasers.
154(6) (Ky.) Where a bank applies funds of a depositor to payment of a note, the burden is upon it to show that the note is one upon which depositor is liable to bank.-Ohio Valley Banking & Trust Co. v. Nichols, 194 S. W. 117. 154(6) (Tex.Civ.App.) In action to recover deposit in defendant bank for credit of proposed bank, defendant has burden of proving that such proposed bank, or its stockholders, were not en- titled to fund in preference to depositor, where defendant's cashier had recognized such fund as belonging to the proposed corporation.-Cozart v. Western Nat. Bank of Ft. Worth, 194 S. 337 (Tex. Civ.App.) That bank agreed to W. 644. take before they were executed the notes of per- 154(7) (Tex. Civ.App.) In action to recover sons on a list of men desirable for insurance money deposited with defendant bank for credit given by bank to insurance agent was no evi- of proposed bank, evidence that six days after dence of fraud and did not put bank upon deposit depositor applied for bank charter is ad- notice of fraudulent representations made by in- missible on question of good faith in represent-surance agent to makers of the notes.-Amthon ing that deposit was for proposed bank.-Cozart v. First State Bank of Uvalde, 194 S. W. 1019. v. Western Nat. Bank of Ft. Worth, 194 S. 351 (Ky.) The failure of the maker of a W. 644. note to demand its delivery to him when he paid 154(S) (Ky.) In an action by depositor to it does not alter the rights of a subsequent recover funds alleged to have been diverted by holder who acquired the note after maturity and
For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
after it had been paid.-Bank of Willard v. clearly against preponderance of the evidence. Pennsylvania & Kentucky Fire Brick Co., 194-Anthony v. J. H. Ring & Sons, 194 S. W. 22. S. W. 110.
523 (Tex.Civ.App.) In a suit on a note pay- 362 (Ky.) One who acquired a note after able to maker and indorsed in maker's name. its maturity takes it subject to the defense of evidence held to support a finding that maker payment at maturity, though he acquired it executed indorsement.-Amthon v. First State from a holder before maturity who took it free Bank of Uvalde, 194 S. W. 1019. from equities.-Bank of Willard v. Pennsyl-525 (Ky.) In a suit, on a promissory note, vania & Kentucky Fire Brick Co., 194 S. W. evidence held to sustain the chancellor's finding 110. that plaintiff acquired the note after maturity. and after payment thereof.-Bank of Willard v. Pennsylvania & Kentucky Fire Brick Co., 194 S. W. 110.
383 (Ark.) Payment of note by maker be- fore maturity without surrender thereof is not a satisfaction against an innocent holder.- Manley Carriage Co. v. Fowler & Hill, 194 S. W. 708.
527(1) (Ark.) In an action by innocent pur- chaser of note, held, that defendants failed to sustain plea of payment.-Manley Carriage Co. v. Fowler & Hill, 194 S. W. 708.
VII. PAYMENT AND DISCHARGE. 429 (Ark.) Where a comaker deposited one527(1) (Ky.) In a suit on promissory notes half of balance due on a note, with understand-by a purchaser thereof after maturity, evidence ing that payee would pay the other half in con- chancellor that the notes had been paid to the held sufficient to sustain the finding of the sideration of taking over the other comaker's former holder at maturity, though they were not interest in a partnership, there is a complete surrendered to the maker.-Bank of Willard v. satisfaction of the note, barring the payee's re- Pennsylvania & Kentucky Fire Brick Co., 194 ceiver from recovering against the first comaker. S. W. 110. -Jones v. Little, 194 S. W. 229.
See Counties, 40-54, 113; Insurance, 14; Schools and School Districts, ~62.
452(1) (Ky.) Under Civ. Code Prac. § 27, since owner of note may sue any or all of par- ties liable, it is no defense for one of makers to allege that another maker is not properly before court.-Daugherty v. Bell Nat. Bank, See 194 S. W. 545.
474 (Ky.) In action on note, where defend- ant fails to deny she executed it, it must be taken as confessed.-Daugherty v. Bell Nat. Bank, 194 S. W. 545.
489(1) (Tex.Civ.App.) In suit on a where defendants' contention that the balance due represented a note given for shares of stock sold by a private corporation contrary to law was denied by plaintiff, testimony was admissi- ble that the shares were purchased from an in- dividual to whom they had in good faith been sold by the corporation.-Witt v. Young, 194 S. W. 1019.
497(2) (Tex.Civ.App.) In action by pur- chaser of silo for breach of warranty, where seller counterclaimed for notes given for pur- chase price, and his wife set up her separate ownership of the notes, the burden of proving that she was a bona fide holder was not on the defendants.-Potter v. Mobley, 194 S. W. 205.
See Bail; Corporations, 473; Criminal Law, 1076; Guardian and Ward, 175; Mechanics' Liens, 315; Municipal Corporations, 347; Principal and Surety; Taxation, 568.
I. REQUISITES AND VALIDITY.
35 (Mo.App.) A bond, though voluntary and not authorized by any statute, is valid if it does not contravene public policy or violate any statute.-C. A. Burton Machinery Co. v. Ruth, 194 S. W. 526.
A bond taken by a public officer in attempt- ed compliance with the statute is good as a common-law bond, though it falls short of ful- filling the requirements of the statute.-Id.
499 (Ky.) In administratrix's suit against son of decedent on notes, burden was on son to show, not only payments made by him on debt See Criminal Law, 439. before a partial settlement, but that he did not receive credit for them in settlement, and, in absence of proof, it will be presumed that all payments were credited in such settlement. See Evidence, 354. Taylor v. Taylor, 194 S. W. 551.
511 (Ky.) In administratrix's suit against son of decedent on notes, son admitting execu- tion, but asserting additional payments, checks of son to decedent and receipt signed by decedent were properly received in evidence on testimony of witness that signatures were genuine.-Tay- lor v. Taylor, 194 S. W. 551.
517 (Ark.) In suit on notes given for pur- chase of corporate stock, chancellor's finding that notes were not delivered conditionally held not clearly against preponderance of the evi- dence.-Anthony v. J. H. Ring & Sons, 194 S. W. 22.
518(1) (Ark.) In suit on notes given for pur- chase of corporate stock, chancellor's finding that notes were not without consideration, held not clearly against preponderance of the evi- dence. Anthony v. J. H. Ring & Sons, 194 S. W. 22.
520 (Ark.) In suit on notes given for pur- chase of corporate stock, chancellor's finding that notes were not procured by fraud, held not
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