ACCOUNT--See APPEAL AND ERROR, 16; EVIDENCE, 3; PARTNERSHIP, 1;
SALES, 7.
1. There can be no acquiescence without notice either actual or con-
structive. Fairbanks v. Merchants Nat. Bank of Chicago,
ADMINISTRATION-See CREDITOR'S BILLS, 3.
1. Upon petition to sell real estate on account of a deficiency of per-
sonal estate to pay debts, the Probate Court, having equity powers, will
recognize a trust existing in favor of a third person. Newell v.
Montgomery,
2. A bill will not lie to set aside a judgment of the Probate Court
allowing a claim against an estate on the ground that the claimant sup-
pressed the fact that the claim was barred by the statute of limitations
and released by a discharge in bankruptcy. Durham v. Field, 121
3. A legatee can acquire no title to any part of the personal estate
except through legal proceedings, or the voluntary assent of the execu-
tor. Id.,
4. In the case presented, even if the Probate Court proceeded without
jurisdiction, which will not be presumed, the executrix has an adequate
remedy at law by a writ of certiorari. Id.,
5. Upon a claim filed against the estate of a deceased person to
recover a proportionate share of the expenses of certain bankruptcy
proceedings, under an agreement entered into with other creditors of
a common debtor, this court, reviewing the evidence, holds that the
claim is barred by the statute of limitations. Holmes v. Burwell, 445
6. The statute of limitations need not be specially pleaded in cases
of this character. Id.,
7. An heir who has receipted for his share of an estate, less an
advancement, can not subsequently recover a further sum from the
administrator, upon the plea that the advancement was not evidenced
as the law requires. Long v. Long,
8. Upon appeal by the administrator from an order allowing a cer-
tain sum as the share of the appellee in an estate, this court declines to
interfere, the receipts of other, heirs being conclusive as to advance-
ments made to them. Id.,
9. Upon proceedings brought by an administratrix for the recovery
of notes claimed to belong to an estate, it is proper to refuse a trial by
jury in the Circuit Court upon appeal from the County Court. Seavey
v. Seavey,
10. The delivery of indorsed notes to a third person, upon the under-
standing that the donor shall receive the interest thereon during his
natural life, the same upon his death to be divided equally between
persons named, if unrevoked, amounts to a gift “inter vivos," and also
to a good gift “mortis causa." Id.,
625
11. In actions of this character the County Court is not confined to
the technical legal rights of the parties in interest, but may act upon
their equities as well. Id.,
AGENCY-See PARTIES, 1; PARTNERSHIP, 3.
1. One who deals with an agent having no general authority is
bound to ascertain the extent of his authority. Schilling v. Rosen-
heim,
81
2. In the case presented, the court below improperly instructed the
jury to disregard certain evidence. Id.,
81
3. Where judgment or discretion is reposed in an agent who, in
dealing with a third person, makes a mistake in judgment, the princi-
pal is bound. Merrimac Paper Co. v. Ill. Trust & Savings Bk., 268
4. Where an agent has full authority to make a sale of goods, it is
unimportant in whose name they have been stored. Id.,
ANIMALS-See BAILMENTS, 3.
APPEAL AND ERROR-See BILLS OF EXCEPTIONS; EVIDENCE, 14.
1. The appellant can not assign as error action that does not preju-
dice his rights. Newell v. Montgomery,
48
2. Where a judge of this court tried the case under consideration in
the court below, and the other judges are divided in opinion, the judg-
ment will be affirmed by operation of law. Claflin v. Dunne, 84
3. An error without prejudice to the appellant is not sufficient
ground for reversal. International Press Ass'n v. Brooks,
114
4. Even if the statute requiring a bond for costs, where the plaint-
iff is a non-resident, applies to a confession of judgment, a failure to
take such bond is an error without prejudice to the defendant. Id.,
114
5. This court will not reverse for an error which has worked no
injury to the appellant. Harms v. McCormick.
125
6. The appellant can not complain of an error which has worked
him no injury. Schlesinger & Mayer v. Keifer,
253
7. This court will not reverse because of inconsistent instructions,
where it clearly appears that the jury were not misled. Hoagland v.
G. W. Tel. Co.,
304
8. A plaintiff who is not entitled to recover at all, has no right to
have a verdict in his favor set aside on the ground that it is for too
small an amount. O'Malley v. C. C. Ry. Co.,
309
9. Where the plaintiff, under such circumstances, has appealed, the
defendant having entered no motion for a new trial, the judgment
will be affirmed. Id.,
10. The appellant can not complain of an error which worked him
no injury. Chicago Dredging & Dock Co. v. McMahon,
APPEAL AND ERROR. Continued.
11. Where conflicting evidence is so evenly balanced that it would
support a verdict for either party, the verdict of the jury is conclusive.
Clark v. Fick,
12. This court will not set aside a verdict as against the weight of
evidence, unless it clearly appears that it is unsupported by the evi-
dence, that the jury has been governed by prejudice or passion, or that
it will result in injustice. C. & I. R. R. Co. v. Lane,
437
13. This court will reverse for failure of the appellee to file br efs.
Parson v. Haskell,
444
14. Evidence improperly ruled out by the trial court may be con-
sidered by this court on appeal. Kiehn v. Bestor,
453
15. The appellant can not complain of an error which worked him
no injury. Field v. Duncan,
16. An appeal will not lie from a decree allowing the complainant
to redeem property in the possession of a mortgagee, with a reference
to the master to state an account, such a decree being interlocutory and
not final. Conant v. Riseborough,
498
17. Where the abstract is so imperfect that this court can not obtain
from it a correct understanding of the case without reference to the
record, the judgment will be affirmed under the rules. Lake v. Lower,
18. This court will not pass upon a discretionary ruling of the trial
court where the record does not show that the exercise of the discretion
of the court was improper. C. & A. R. R. Co. v. Shenk,
19. This court will not consider the evidence in a case tried by the
court below without a jury, where the record fails to show that an
exception was taken to the final judgment. Seavey v. Seavey, 625
ASSIGNMENT-See INSOLVENCY; JURISDICTION, 3, 4, 5.
1. The effect of congressional legislation in relation to national
banks prior to the act of July 12, 1882, was to prohibit the issue by
State courts of attachments against them. If such prohibition contin-
ues, it is a privilege which may be waived. Morris v. Merchants Nat.
Bank of Deadwood,
2, In the absence of the original attachment writ, a recital in the
transcript that it was served, is not conclusive. Stroner v. Prokop, 56
3. In the case presented, the court below properly excluded affida-
vits to show service of the writ, the return being primary evidence of
service. Id.,
56
ATTORNEY AND CLIENT-See INJUNCTIONS, 1, 2.
1. Under a special contract to pay an attorney a certain contingent
fee for successfully defending a suit and a per diem for time employed
in case of abandonment by the client, upon such abandonment the
recovery of the per diem allowance can not exceed the amount of the
contingent fee. Rubel v. Elliott,
62
2. Upon an intervening petition by an attorney to reach a fund in
court, in order to secure fees claimed to be due him, it is held: That
the evidence sustains the view that the petitioner was discharged from
the service of the appellant; and that such discharge did not take away
the security, in the form of an assignment for his fees. Phillips v.
Sherburne,
1. A delivery of goods to a retail dealer to be sold by him for cash,
at not less than the invoice price, he to retain as commissions what he
can get above that price, and to return the goods or the money received
for them when called upon so to do, does not amount to a sale, even as
to creditors of such dealer. Rosencranz & Weber Co. v. Hanchett, 283
2. In the case presented, the evidence is wholly insufficient to estab-
lish that the bailment was fraudulent in fact. Id.,
283
3. The burden is on the bailee of an animal received in good and
returned in bad condition, to account for the damage. Burlingame v.
Horne,
BANKS-See ATTACHMENT, 1; NATIONAL BANKS.
BANKRUPTCY-See ADMINISTRATION, 2, 5.
BENEVOLENT SOCIETIES-See PRACTICE, 3.
1. The expulsion of a member from a mutual benevolent society, with-
out notice, and in his absence, is void, although notice is not required
by the rules of the society. Supreme Lodge A. O. U. W. v. Zuhlke,
98
BILLS OF EXCEPTIONS-See PRACTICE, 19, 20.
1. Propositions of law submitted to the court, not incorporated into
the bill of exceptions but copied by the clerk into the transcript of the
record, can not be considered by this court. City Cab Co. v. Taylor, 47
2. This court can not consider a bill of exceptions which was signed
but not sealed by the judge of the court below. Widows and Orphans'
Beneficiary Ass'n v. Powers,
3. In the absence of the certificate of the judge of the trial court to
the bill of exceptions, the presumption is in favor of the regularity of
the proceedings. Rohrheimer v. Eagle,
498
4. A bill of exceptions not purporting to contain all the evidence
heard on a motion to set aside a default, is insufficient. Wheeler
Chemical Works v. Alexander,
502
BONDS-See APPEAL AND ERROR, 4; COSTS, 1; EVIDENCE, 4; PARTNER-
SHIP, 3.
1. A real estate broker to be entitled to commissions for effecting a
sale, must show that he has produced a purchaser ready and willing to
take the property on the terms specified, or that his efforts were the
procuring cause of a sale made by the principal. Davis v. Gassette, 41
2. The fact that an exchange of property is finally effected through
the efforts of the principal and another broker with a person to whom
the first broker has tried to effect a sale without success, furnishes no
basis for a claim for commissions by the first broker, especially if he has
long since abandoned his efforts to sell the property. Id.,
3. Merely advising the consummation of an exchange of property
does not entitle the broker to a commission, unless such advice so con-
tributed to the result as to be fairly regarded as the procuring cause of
the transaction.
41
4. In an action to recover commissions alleged to be due the plaint-
iffs as real estate brokers, this court reverses the judgment for the
plaintiffs because of the giving of an instruction which is not based
upon the evidence. King v. Barnes,
339
CARRIERS.
1. A common carrier can not arbitrarily fix the value of freight
carried by it below its real value without the consent of the owner.
C. & N. W. Ry. Co. v. Chapman,
2. There is no distinction between "
"want of ordinary care." Id.,
gross negligence" and the
3. A common carrier can not, by stipulation in a bill of lading,
relieve itself from liability for its own negligence. Id..
504
4. It seems that the carrier may require from the shipper a correct
statement of the value of freight and base the charge for transporta-
tion upon the risk incident to its carriage. Id.,
CERTIORARI-See ADMINISTRATION, 4.
CHATTEL MORTGAGE-See NATIONAL Banks, 1.
CHATTELS-See EVIDENCE, 11.
1. One who has been refused the full and equal enjoyment of the
accommodations of a theatre because of color, may maintain an action on
the case to recover the penalty prescribed by the act of 1885, such pen-
alty not being certain in amount. Baylies v. Curry,
105
2. It is a violation of the statute in question to require colored
patrons of a theatre to occupy particular rows of seats. Id.,
CONTEMPT.
1. Where a receiver has been appointed under a creditor's bill, the
court may compel persons within its jurisdiction to refrain from prose-
cuting suits in other jurisdictions to reach property of the debtor there
situated. Sercomb v. Catlin,
2. Where the respondent in a common law proceeding, in answer
to a rule to show cause why he should not be attached for contempt,
denies the entire charge by affidavit, he is entitled to his discharge.
It is improper to hear oral evidence to contradict such affidavit. Welch
v. The People,
399
3. It seems that the jurisdiction of this court, in criminal contempts,
is not limited to an examination of the jurisdiction of the court below.
Id.,
399
CONTRACTS-See ATTORNEY AND CLIENT; ELECTION, 1; EVIDENCE, 7,
9; INFANCY, 1, 2; MECHANIC'S LIEN, 3, 4.
1. Under a contract to furnish a competent millwright to set up a
silver mill and its machinery, the party furnishing such millwright can
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