11. BOND-SURETIES.-Under the provisions of section 14, p. 73, of the Compiled
Statutes Nebraska, an attorney at law should not be allowed by the clerk to
become surety upon an attachment undertaking. But if the clerk, in viola-
tion of such statute, approves such undertaking, the surety is bound thereby,
and the undertaking will be held good, upon a motion to discharge an attach-
ment, for the reason that "no undertaking has been filed as required by law." Id.
12. ENFORCING JUDGMENT. Upon the facts set out at length in the opinion, held,
that the appellants are entitled to recover. Kennard v. Hollenbeck, 771.
See ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; CREDITORS' BILL, 1, 2; MALI-
CIOUS PROSECUTION, 5-12.
1. TAX DEED IN NAME OF ATTORNEY-TRUST.-An agent or attorney holding a
tax certificate for his principal cannot be allowed to take and hold a tax deed,
as against him, on account of the negligence of the principal in reimbursing
him, unless the agent or attorney has ma le a full and fair statement to his
principal of the account between them, and the amount necessary to reimburse
him. Continental Life Ins. Co. v. Perry, 937.
2. EXECUTION SALE-FRAUD-PRIVATE SALE.—In an execution sale, the judgment
creditor having bought in the property through her attorney, who made the
bid in his own name, and retained an interest in it as a security for his fees, the
courts will not afterwards countenance a private sale by the attorney to the
judgment debtor of his alleged interest before a close of the proceedings, and
without a request first made by him to his client for the fees due him. Taylor
v. Young, 799.
3. LIEN OF ATTORNEY-RIGHT TO RETAIN FUND COLLECTED FOR FEES.-An at-
torney has a len upon money or papers of his cl ent which have come to his
poss ssion, derive from or pertaining to the suit in wh ch his legal services
were rendered, to s cure payment, no only for his services in that suit, but also
for all professional services rendered his client in other su ts; but where he re-
ceives money he has no lien upon or right to retain any sum beyond the amount
owing him from his client for professional services, and it is his duty to pay
over to his client on demand any sum he has received beyond what his client
owes him for such services. Robinson v. Hawes, 222.
4. SAME-EVIDence-Verdict SET ASIDE.-Upon examination of the evidence in
this case, hold, that the attorney was no justified in retaining the amount col-
lected by him in excess of the amount due him for fees, and that the circuit
court erred in directing the jury to find a verdict in his favor, and that the
judgment should be reversed and a new trial g anted. Id.
See ASSAULT AND BATTERY, 4; BASTARDY; FRAUDULENT CONVEYANCES, 7;
NEW TRIAL, 3.
ATTORNEY GENERAL. See QUO WARRANTO.
ATTORNEY'S FEES. See DIVORCE, 4; MORTGAGES, 28.
AUDITOR GENERAL. See TAXATION, 26.
1. DEPOSIT OF GRAIN.-Where a party delivers or deposits grain with another,
with an agreement, expressed or implied, that the latter may use and dispose
of it, and fulfill his obligation to the former by returning an equal amount of
other grain of the same quality, the transaction, in the absence of a statute
changing the rule, constitutes a sale, and not a bailment. Fishback v. Van
Dusen, 244.
2. WAREHOUSE RECEIPTS-GEN. Laws Minn. 1876, Ch. 86.—Chapter 86 of the
General Laws of 1876, entitled "An act to regulate the storage of grain," ap-
plies only to cases where there has been a delivery of grain by an actual de-
positor, and not to a case where a party issues to his creditor an ins rument in
the form of a warehouse receipt for the purpose of pledging or mortgaging his
own property in his own possession to secure his own debt. Id.
1. ACTION ON JUDGMENT-DISCHARGE.-W. & Co. instituted an action against de-
fendant in a state court in Iowa. Defendant filed a petition in bankruptcy in
the United States court, but made no defense to the action, and a judgment
by default was entered against him. Held, in an action on such judgment,
brought by W. & Co. in Dakota, that the discharge of defendant, which might,
by outaining a stay of proceedings, have been pleaded in bar of the former ac-
tion, constituted no defense to the action on the judgment, and that W. & Co.
were entitled to recover. CHURCH, J., dissenting. Wells v. Edmison, 497.
2. SAME-BURDEN OF PROOF.-One M. filed a petition in equity against a judg-
ment creditor, and two judgment creditors and two judgment debtors, co-de-
fendants with him, wherein he alleged the recovery of a judgment in 1876
against himself and said debtors, which was an apparent lien upon his real es-
tate. He also alleged that in 1878 he was discharged in proceedings in bank-
ruptcy from the payment of the judgment. The discharge being denied, held,
that the burden of proof was on him to establish it. Gregory v. Edgerly, 703.
3. EVIDENCE-STIPULATION OF CO-DEFENDANTS.-The attorneys of the creditor
and M. entered into a stipulation that M. had been discharged in bankruptcy
as alleged in the petition. Held, that the stipulation did not affect the co-de-
fendants with M. in the judgment, nor was it admissible in evidence against
them. Id.
1. STOPPING PAYMENT OF CHECK.-As between the holder of a check for value and
the drawer thereof, the bank upon which the check is drawn standing indif-
ferent, and the drawer having an account to his credit in the bank sufficient to
pay the sum, the check-holder is entitled in equity to have the money paid to
him to the amount of his check, and the drawer cannot arbitrarily stop its pay-
ment and compel the bank to pay the money to him. Pease v. Landauer. 847.
2. INSOLVENCY-ACTION BY CREDITOR-SUFFICIENCY OF COMPLAINT.-Complaint
in an action by a creditor, in behalf of himself and other creditors of an in-
solvent banking corporation, for the purpose of closing up the business of the
corporation, and to charge the directors, trustees, or other officers or stock-
holders thereof, on account of their liability created by law, examined, and
held sufficieat. Hurlbut v. Strong's Bank of Green Bay, 852.
3. SAME.-Order sustaining demurrer to complaint reversed; following Hurlbut v.
Strong's Bank of Green Bay, 852. Hurlbut v. Taylor, 855.
4. FRAUDULENT DIVIDENDS-TRANSFER OF STOCKS-LIABILITY OF TRANSFEREE.
When a shareholder in an insolvent banking corporation, who has received
unlawful dividends, transfers his stock to another party, the transferee cannot
be held liable to account to the creditors of the bank for the amount thus fraud-
ulently received and appropriated by the original holder of the stock. Id.
EVIDENCE OF PATERNITY OF CHILD-IMPROPER ARGUMENT TO JURY-INSTRUC-
TION-REFUSAL OF WITNESS TO CRIMINATE HIMSELF.-Under the circumstances
of this case, and in virtue of the position assumed by counsel in his argument
to the jury in behalf of the state, the refusal of the court to instruct the jury
as requested, in regard to the effect to be given to the refusal of a witness called
in rebuttal to answer whether or not he had had connection with the complain-
ing witness, was error for which the judgment should be reversed. State v.
McCartney, 658.
1. OBJECTIONS TO BILL OF EXCEPTIONS.-A party who moves to quash a bill of
exceptions must specially point out in his motion the objections complained
of. Smith v. Keiser, 368.
2. PRESUMPTION OF SETTLEMENT.-Where the transcript shows that a bill of ex-
ceptions was taken during the trial of an action of forcible entry and detainer,
it will be presumed to have been prepared at that time, although not signed till
a few days afterwards. Id.
3. WAIVER OF FORMAL MATTERS.-Where a bill of exceptions was submitted to
the adverse party for correction, and amendments made to the same, and then
duly signed, held, a waiver of all objections as to matters of form. Id.
4. ALTERATIONS AFTER SETTLEMENT. - Where a motion supported by affidavits is
filed to strike the bill of exceptions from the record on the ground that it has
been mutilated by adding certain words thereto since being signed, the motion
will be overruled, unless it is made to appear that the mutilation was made by
the plaintiff in error or his attorney. Clark v. Gell, 562.
5. EVIDENCE.-Rules laid down in French v. Lancaster, 2 Dak. 276, S. C. 9 N. W.
REP. 716, and St. Croix Lumber Co. v. Pennington, 2 Dak. 467, S. C. 11 N. W.
REP. 497, as to the sufficiency of bills of exception, reaffirmed.
Tolman v.
New Mexico & Dakota Mica Co., 505.
BONDS. See APPEAL AND ERROR, 17; ATTACHMENT, 10, 11; Costs, 3; COUNTIES
AND COUNTY OFFICERS, 1; ESTATES OF DECEDENTS, 9, 10; INJUNCTION; PRIN-
CIPAL AND SURETY, 3; REPLEVIN, 4, 5; STAY OF EXECUTION.
BOUNDARIES. See PUBLIC SCHOOLS, 1; TRESPASS, 5.
BREACH OF PROMISE. See CONTRACT TO MARRY.
BRIDGES. See CONSTITUTIONAL LAW, 6; Towns, 3-5; TOWNSHIPS.
1. OFFICE OF WRIT.-In Minnesota the writ of certiorari is employed strictly as in
the nature of a writ of error. Its office is to review and correct the decisions
and final determinations of inferior courts and tribunals, and not to divest them
of the right of trying and terminating the proceedings before them. Grina-
ger v. Town of Norway, 174.
2. APPEAL FROM BOARD OF SUPERVISORS -LAYING OUT CART-WAY.- Hence,
where an appeal had been taken to a justice of the peace from the determina-
tion of a board of supervisors laying out a car-way, and the jury impaneled to
try the appeal disagreed and were discharged, the appeal remained undeter-
mined, and there being no decision or determination of the matter, a writ of
certiorari to review the proceedings before the justice was premature. Id.
3. JUDGMENT-NON-JOINDER-ABATEMENT.-The law which allows a judgment to
be rendered against a surety on appeal or certiorari does not make that the only
proper method of holding him, and when he objects to such a judgment he
cannot complain if it is vacated; and a suit on the bond against one of two
obligors is good if the non-joinder of the other is not pleaded in abatement.
Porter v. Leuche, 104.
See INTOXICATING LIQUORS, 12; JUSTICE OF THE PEACE, 10-12; MINNEAPOLIS PARK
Аст, 10.
1. APPLICATION TOO LATE.-An action having been commenced in another county
than that of the defendant's residence, the neglect of the defendant for seven
months after the joining of issue to move for a change of venue, considered
with other circumstances as justifying the court in refusing the motion, in
view of the provisions of rule 21 of the district court, although plaintiff's attor-
ney had, before the joining of issue, verbally agreed to stipulate that the venue
be changed. Waldron v. City of St. Paul, 4.
2. SAME LACHES.-The denial of a motion after such laches for change of venue,
on the ground of the convenience of witnesses, sustained. Id.
See CRIMINAL LAW AND PROCEDURE, 1.
1. DESCRIPTION OF PROPERTY.-Tolbert v. Horton, 31 Minn. 518, S. C. 18 N. W.
REP. 647, followed, and applied to this case. The general rule is that a de-
scription in a chattel mortgage of the mortgaged property is sufficient if it will
enable a third person, aided by inquiries which the instrument itself suggests,
to identify the property. Application of this rule to a mortgage in which three
horses three years old, coming four, appear to be misdescribed as "three four-
year-old horses," with reference to which it is held that the jury, upon the
facts appearing in evidence, were warranted in rejecting the misdescription as
to the age, and finding that the three-year-olds were included in the mortgage.
Tolbert v. Horton, 126.
2. SALE-SATISFACTION.-A woman who held a bill of sale of personal property in
security for a debt proceeded to sell the property. Part of it was covered by a
chattel mortgage, and at her request this mortgage was purchased by a third per-
son and held for her. She sold property enough to pay both debts, and of that
which was sold, enough was included in the chattel mortgage to pay that off.
Afterwards her son, who was cognizant of all the facts, took an assignment of
the chattel mortgage. Held, that the chattel mortgage must be deemed satis-
fied. Long v. Moore, 97.
3. SAME-PLEADING.-If there were any facts to excuse the failure to apply the
moneys received on the sale in satisfaction of the mortgage, they should have
been affirmatively established, as the sale prima facie paid it, under the circum-
stances stated. Id.
4. PAYMENT-OFFSET.-Where property seized under a chattel mortgage is replev-
ied, payment of the mortgage debt cannot be shown by evidence that the mort-
gagee has an offset more than sufficient to pay such debt. Warner v. Com-
5. TAKING FROM FILES-SEIZURE OF PROPERTY.-The mortgagee named in a chat-
tel mortgage has no right, on default of payment, to take the mortgage from
the files of the township clerk's office in order to sell the mortgaged property
to pay the debt secured thereby. Warner v. Comstock, 64.
See ASSIGNMENT FOR BENEFIT OF CREDITORS, 2-4; CONVERSION; FRAUDULENT
CONVEYANCES, 4-8; GARNISHMENT, 1; PLEDGE.
CHECKS. See BANKS AND BANKING, 1.
CIRCUIT COURT. See GUARDIAN AND WARD, 6, 7.
CITIES. See GRAND RAPIDS; MINNEAPOLIS PARK ACT; MUNICIPAL Corpora-
TIONS; ST. PAUL; STILLWATER.
CLERK OF CIRCUIT COURT. See GUARDIAN AND WARD, 7.
CLOUD ON TITLE. See ESTATES OF DECEDENTS, 14-16; MORTGAGES, 21;
VENDOR AND VENDEE, 15.
See ADVERSE POSSESSION, 4-7; TAXATION, 21.
1. SPECIAL CONTRACT TO TRANSPORT CIRCUS-LIABILITY. -A railroad company
that contracts with a circus proprietor as a hirer, and not as a common carrier,
to furnish men and motive power to transport his circus in special cars owned
by him, said cars to be operated under the management, direction, orders, and
control of the said proprietor, or his agent, and by means of said employes as
his agents, but to run according to the rules, regulations, and time-tables of the
company, from a point designated to certain other points, at greatly reduced
rates, with the privilege of stopping at places and times stated to give exhibi-
tions, is not liable as a common carrier, and may stipulate for exemption from
responsibility for damages caused by the negligence of its servants while in this
special employment. Coup v. Wabash, St. L. & P. Ry. Co., 215.
2. INJURY TO MACHINE-MEASURE OF DAMAGES.-Plaintiff, as consignee of a pipe-
machine, caused it to be delivered to the Wabash, St. Louis & Pacific Railway
Company for carriage over its road to Milwaukee. The machine and attach-
ments were so badly broken through the negligence of the employes of the road
that it was useless when delivered, and it would have cost as much to have re-
paired it as to purchase another machine. Plaintiff refused to receive the ma-
chine, and brought suit for damages. Held, that he was entitled to recover
the value of the machine, including the freight paid by him, with interest from
the time the property reached its destination. Thomas, Badgley & W. Manuf's
Co. v. Wabash, st. L. & P. Ry. Co., 827.
3. SAME-LOSS OF USE OF MACHINE-KNOWLEDGE OF CARRIER.-Held, further,
that as it was not shown that the railroad company had knowledge of the fact
that the machine was to be used by plaintiff in his business, he was not entitled
to recover for the loss of the use of the machine while another was being pro-
cured to supply the place of the one destroyed, Id.
See SALE, 1, 2; TELEPHONE COMPANIES, 3.
COMPLAINT. See BANKS AND Banking, 2, 3; SALE, 24, 25; Water-Rights, 6.
COMPLAINT ON INFORMATION AND BELIEF. See CONSTITUTIONAL Law,
1; CRIMINAL LAW AND PROCEDURE, 1.
COMPROMISE. See PROMISSORY NOTES, 15.
CONDITION SUBSEQUENT. See DEED, 4.
CONFESSIONS. See CRIMINAL LAW AND PROCEDURE, 11.
CONFLICT OF LAWS. See EXEMPT PROPERTY, 1; Personal Injuries, 1.
1. COMPLAINT CHARGING VIOLATION OF FISH LAWS ON INFORMATION AND BE-
LIEF-ARREST-TRIAL-A party may be arrested and tried on a complaint
made before a justice of the peace under oath, charging him, on the informa-
tion and belief of the complainant, with unlawfully spearing fish in violation
of Laws Wis. 1883, c. 89, § 1. State v. Davie, 411.
2. JURY FEES IN CRIMINAL CASES.-The constitution does not deprive the legis
lature of the authority to impose a reasonable jury fee to be taxed as a part of
the costs against a person convicted of an offense. Shaw v. State, 772.
3. EQUALITY IN TAXATION.-The constitutional requirement of equality in taxation
is applicable with respect to legislation authorizing assessments for local im-
provement, and limits the power of the legislature; but the legislature may
exercise its discretion, within prescribed limitations, in framing enactments as
to the manner in which assessments shall be levied so as to secure equality of
apportionment. State v. Dist. Court of Hennepin Co., 625.
4. SAME-ACT, WHEN DECLARED VOID.-An act should not be declared invalid
merely because inequality may result from its operation. Before courts can
declare an act unconstitutional it should at least be apparent that it was not
framed with regard to the constitutional requirement, or that it will produce
gross inequality. Id.
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