APPEAL AND ERROR.-Continued.
45. Harmless Error-Instructions. Exceptions based on instructions
given and refused will not be considered where no other verdict
could have been rightfully rendered. Armstrong v. Poland..
46. Same, Under Rev. Laws 1910, sec. 4791, error in an instruction
will be disregarded where it appears from the entire record that
no prejudice resulted.
Measure of Damages. Where amount of damages recovered
is not excessive, and it is evident that jury was not misled by
instructions, error in instructions on measure of damages is
harmless. Wichita Falls & N. W.. Ry. Co. v. Gant.....
48. Prejudicial Error-Instructions. It is prejudicial error to give
instructions which may confuse jury on issues not pleaded.
Indiana Harbor Belt R. Co. v. Britton....
49. Same. Giving of an instruction on an issue not raised by the
pleadings or evidence held to require a reversal where it tended
to confuse the jury. St. Louis & S. F. R. Co. v. Bruner.....
50. Supersedeas Bond-Liability of Sureties Defense - Indorse-
ment of Approval. Where a supersedeas bond is filed by the
clerk of the court and recorded in the proper journal of the court,
and the appeal is duly had and execution stayed thereon, the
sureties upon said appeal bond cannot escape liability for the
reason that the clerk of the court failed to indorse his approval
upon said bond. Leach v. Altus State Bank...
ARGUMENT-See "Appeal and Error," 36; "Trial," 10, 11.
ASSIGNMENT OF ERRORS—See "Appeal and Error,” 6.
ASSIGNMENTS-See "Corporations"; "Judgment." 6; "Landlord and
Tenant."
Claims Assignable-Breach of Contract.
A claim for damages arising
from a breach of a contract for the sale of stock in a corporation
is assignable. Stigler v. Kessler
ATTACHMENT-See "Fraudulent Conveyances"; "Justices of the
Peace," 2-5.
Claims of Third Persons-Burden of Proof. Burden of proof is gener
ally on purchaser who bought of defendant before levy and who
Institutes independent action for property or intervenes to claim
property, but, if attaching creditor admits purchase and charges
fraud, he has the burden. Wells v. Guaranty State Bank. . . . . .
ATTORNEY AND CLIENT-See "Appeal and Error," 11, 12; “In-
fants"; "Prosecuting Attorneys."
AUTOMOBILES-See "Highways"; "Principal and Agent"; "Sales."
1. Property in Trustee's Custody-Jurisdiction of State Courts. When
a federal court in a bankruptcy proceeding has taken property
into its possession, through its duly elected and qualified trustee.
the property is withdrawn from jurisdiction of all other courts,
and cannot be taken from the custody of such trustee upon pro-
cess from a state court. Meek v. Eggerman
2. Same-Property Taken Under Process-Custody of Law-Exclusive
Jurisdiction. Under Bankr. Act 1898, sec. 2, cl. 3, and sec. 38
held that property taken under process of a bankruptcy court is
in custody of the law, that the officer's possession cannot be dis-
turbed by process from any state court. Darrough v. First Nat.
Bank of Claremore
3. Same. Property of which a bankruptcy court has taken possession
is thereby withdrawn from the jurisdiction of all other courts.
Idem
4. Same. The filing of a petition in bankruptcy and the adjudication
in themselves prevent interference with the bankrupt's property
by all persons having no liens upon or debatable claims to it
when the petition is filed. Idem....
5. Same-Adjudication of Title-Receivers.
has exclusive jurisdiction to determine, as against an adverse
claimant, the title to property in the bankrupt's pessession when
a receiver was appointed, and with this jurisdiction a state court
cannot interfere. Idem
The federal District Court sitting in bankruptcy may, after
reasonable notice, summarily determine all controversies between
the trustee and adverse claimants of the bankrupt's property.
Idem
1. Liens on Stock-Debt of Manager- Pledge. A bank is not entitled
to a lien upon the stock owned by its active manager for money
loaned by it to him in violation of the law of this state, as against
a pledgee of said stock who did not have any knowledge of the
existence of the debt due the bank by its active manager at the
time the stock was pledged to him. Bryan County State Bank
v. American Nat. Bank of Ft. Worth, Tex.
2. Same. A pledgee of bank stocks is not guilty of laches by failing
to inquire of the bank if it had loaned any money to its active
manager where it is a violation of law to do so, but he is justi-
fied in assuming that the law has not been violated. Idem....
3. Contract of Cashier-Acceptance of Benefit Ultra Vires. When
a cashier of a bank makes a contract which is beyond his power
and authority, but the bank by reason thereof secures a benefit
or beneficial effect, it will not thereafter be heard to urge non-
liability thereunder on the plea of ultra vires. First Nat. Bank
of Ada v. Womack
![[blocks in formation]](https://books.google.co.za/books/content?id=lV4aAAAAYAAJ&output=html_text&pg=PA806&img=1&zoom=3&hl=en&q=%22shall+be+necessary+to+prevent+loss+upon+a+debt+previously+contracted+in+good+faith%22&cds=1&sig=ACfU3U2zdZWOTrqlXZfuYTcgD7Tol75jDw&edge=0&edge=stretch&ci=900,269,43,1103)
BANKS AND BANKING.—Continued.
4. Bills and Notes Representations by Cashier.
note, is not bound by statements of cashier to his wife, inducing
her signature to note to bank with him.
& Trust Co.....
5. Checks-Charge Against Deposit. A bark may charge to the ac-
count of a depositor the checks of a third party, not purporting to
be drawn in behalf of such depositor nor against such account,
only upon the actual direction of the depositor. Madill State
Bank v. Weaver
6. National Banks-Usury-State Laws. State laws providing for
forfeitures and penalties for charging and taking a greater rate
of interest than that allowed by law do not apply to national
banks. First Nat. Bank of Wellston v. Green
BILLS AND NOTES-See "Banks and Banking"; "Corporations";
"Evidence," 11; "Mortgages"; "Set-Off and Counter-Claim."
1. Validity-Consideration. Benefit conferred by third party or detri-
ment suffered by payee of note is sufficient consideration, though
maker received no personal benefit. Fue v. People's Bank &
Trust Co.
2. Negotiable Instruments-Law Merchant.
vided for by the Negotiable Instruments Law (chapter 49, Rev.
Laws 1910), the rules of the law merchant govern. First Nat.
Bank of Iowa City, Iowa, v. Watson . . . .
3. Same-Certainty in Amount—Provision for Discount.
able Instruments Law does not purport to prescribe a rule dif-
erent from that of the law merchant, theretofore recognized by
the courts of this state, in a case where a promissory note pro-
vides for the discount of the principal sum otherwise payable,
if, at the option of the maker, payment is made before maturity.
Idem
4. Same. Under the rule of the law merchant, a note payable in in-
stallments three months apart, which contained a stipulation
that, if paid within 15 days from date, a discount of 6 per cent.
would be allowed, was uncertain as to the amount necessary to
satisfy it at the time of its execution, and therefore nonnegotia-
ble. Idem.
5. Bona Fide Purchaser-Direction of Verdict. Evidence held to
authorize direction of verdict for plaintiff as innocent purchaser
of notes in suit. Wells v. Guaranty State Bank
"Bona Fide Holder”—Knowledge of Indorsee. Knowledge that a
note was given in consideration of an executory agreement of
the payee, which has not been performed, with knowledge of the
breach of such agreement, will deprive the indorsee of the charac-
ter of a bona fide holder. Barry v. Kniseley..
BILLS AND NOTES.-Continued.
7. Indorsement-Transfer in Due Course Defenses “Guarantee Pay-
ment and Waive Notice, Etc." Before the adoption of the Uni-
form Negotiable Instruments Act (chapter 49, Revised Laws
1910), the words "For value received, I hereby guarantee pay-
ment of the within note, and waive demand and notice of pro-
test on same when due," written on the back of the note by the
payees, did not constitute an indorsement and transfer in due
course, but constituted a mere guaranty of payment; and the
maker of such note is entitled to make the same defenses against
the same in the hands of the holder under such guaranty that he
would be entitled to make if it were in the hands of the original
payees. Douglass v. Brown
8. Note Transferred after Maturity-Set-Off.
set off a debt arising upon a contract due him from the payee of
a negotiable note against the note in the hands of the person to
whom the payee transferred it after maturity, and the fact that
such claim may be for an unliquidated demand is no valid ob-
jection to its being pleaded as a set-off. Curlee v. Ruland ..
9. Action on Note-Petition Sufficiency. Petition held not demur-
rable for failure to allege delivery to plaintiff of a note sued on,
or that plaintiff was the owner and holder, where plaintiff was
the payee, and the execution, default in payment, and the amount
due were duly alleged. Western & Southern Fire Ins. Co. v.
Murphey
10. Same-Defense of Ultra Vires-Demurrer to Reply. Where the
answer alleged that the note sued on was ultra vires, a demurrer
to a reply containing a general denial was properly overruled.
Idem
BONA FIDE PURCHASERS-See "Bills and Notes."
BONDS See "Appeal and Error," 50; "Counties"; "Evidence," 6, 7, 10:
"Mechanics' Liens"; "Principal and Surety"; "Sunday."
1. Requisites-Signatures. Names of obligors need not appear in
body of bond if it is duly signed and sealed by them. Craig v.
Spencer
Manner, form, and place of signature to bond, if made to
bind obligor, are immaterial; it being for the jury to determine
whether he meant to be bound. Idem
BREACH OF WARRANTY-See "Warranty."
BRIEFS See "Appeal and Error," 17-19.
BROKERS-See "Fraud."
1. Action for Commission-Town License-Necessity.
ordinance, requiring brokers to procure license, was primarily
to raise revenue, its exclusion, in action by broker for compensa-
tion, was not error. Campbell v. Thomas
2. Same Contracts-Evidence-Direction of Verdict. In action for
procuring exchange of land, where question of condition of agree-
ment between the principal and brokers was controverted, both in
pleadings and in testimony, direction of verdict for plaintiff was
error. Idem
BURDEN OF PROOF-See "Acknowledgment"; "Attachment"; "Cor-
porations"; "Damages"; "Evidence," 2; "Malicious Prosecution";
"Master and Servant," 4, 5; “Trial,” 7, 11; “Use and Occupation."
CANCELLATION OF INSTRUMENTS-See "Champerty and Mainte-
nance"; "Landlord and Tenant."
1. Void Deed-Conditions Precedent-Offer to Return Consideration.
In a suit by a grantee in possession of lands under a guardian's
deed to cancel, as a cloud upon his title, a previous conveyance
of said lands made by the ward, a freedman allottee, and void
by reason of his minority, it is unnecessary to offer to return the
consideration received by such ward, or to allege its dissipation
and his consequent inability to restore. Peeler v. Naylor........
2. Same-Duress and Want of Consideration Offer to Do Equity. A
petition to cancel a deed for duress and want of consideration
need not offer to do equity. Harris-Lipsitz Co. v. Oldham....
3. Same-Sufficiency of Evidence. Evidence in a suit, to cancel a deed
held to show that the deed was obtained by duress and without
consideration and should be set aside. Idem....
CAPITAL STOCK-See "Corporations."
CARRIERS--See "Estoppel"; "Insurance," 3; "Limitation of Actions";
"Master and Servant," 8, 9; "Railroads"; "Telegraphs and Tele-
phones"; "Trial," 5, 9.
1. Leaving Passengers-Negligence-Exemplary Damages. Evidence
held to sustain a recovery of compensatory damages, but not of
exemplary damages, for negligence in leaving a passenger and
failing to give opportunity to board train. Chicago, R. I. & P.
Ry. Co. v. Wells
2. Commerce-Regulation-Interstate Carriers-Limitation of Lia-
bility. On account of the passage of Act Cong. June 29, 1906. c.
3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1911, p. 1284), the state,
under its police. power, has ceased to have the authority to pass
acts relative to contracts made by carriers pertaining to inter-
state shipments, and section -9, art. 23 (section 358, Williams'
Ann. Const.), of the Constitution of this state applies only to in-
trastate shipments. St. Louis & S. F. R. Co. v. Wynn
Same Special Contracts-Validity. As to interstate shipments,
the common-law liability of the carrier for the safe carriage of
property may be limited by a special contract with the shipper.
where such contract, being supported by a consideration, is
reasonable and fairly entered into by the shipper, and does not
attempt to cover losses caused by the negligence or misconduct
of the carrier. Idem
|