ASSIGNMENt of Wages-WHAT SUFFICIENT.-A letter or order directed
to the auditor of a railway corporation requesting him to pay to a person
named therein the salary of the writer during the ensuing six months,
accepted and partly acted upon by the corporation, is a sufficient as.
signment of such wages, if they thereafter accrue. All that is neces-
sary to accomplish an assignment is that the intent to assign appear
from the writing or otherwise. The form is of little moment. Metcalf
v. Kincaid, 391.
7. AN ASSIGNMENT OF FUTURE EARNINGS is sufficient to vest them in the
assignee as against attaching creditors, though there was no contract of
employment for any definite length of time, if the assignor was actually
at work at the time, under an engagement then existing at a fixed
price, under which he might reasonably expect to earn wages in the
future. Metcalf v. Kincaid, 391.
See HOMESTEAD, 8; Landlord and Tenant, 3.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
1. BY CORPORATION.—An insolvent corporation has a right to make an
assignment in trust for the benefit of its creditors, and may exercise
such right to the same extent and in the same manner as a natural
person, unless restricted by its charter or some statutory provision.
Worthen v. Griffith, 50.
2. WITHHOLDING ASSETS.-The withdrawal by a director of a corporation of
a portion of its assets for his own use at a time when the corporation is
hopelessly insolvent, and in contemplation of an assignment for the
benefit of creditors, does not of itself render a subsequent partial as
signment void, if the assignment does not tend in any way to promote
or cover up the acts of such director in reference to the withdrawal of
such assets. Worthen v. Griffith, 50.
8. BY CORPORATION ASSETS AS TRUST FUND.-In those states where an
insolvent corporation may make preferences among its creditors by as-
signment the rule that the property of the corporation is a trust fund
in the hands of its directors as a specific lien or direct trust does not
prevail, and it is only when a court of equity, at the instance of a
proper party, and in a proper proceeding, has taken possession of the
assets of the corporation, that such assets constitute a trust fund for its
creditors. Worthen v. Griffith, 50.
PREFERENCES.-An assignment by an insolvent corporation for the bene
fit of creditors is not rendered void from the fact that on the day the
assignment was instituted the corporation confessed judgment in favor
of bona fide creditors preferred in the assignment, and then entered its
appearance in an action by the assignee and such creditors, with con-
sent that the assignee should be appointed receiver of the assigned
property, so that it might be sold under order of court on terms pro-
hibited by the statute regulating asssignments. Worthen v. Griffith, 50.
B. PREFERENCES.—A corporation having the right to prefer one or more of
its creditors may do so by assignment, mortgage, or judgment, or by a
combination of these methods, so long as no fraud is perpetrated under
the pretense of securing the debt. Worthen v. Griffith, 50.
6. BY CORPORATION-PREFERENCE TO DIRECTOR.-A corporation having the
right to prefer its creditor by assignment may thus prefer a just debt
due from it to one of its directors. Worthen v. Griffith, 50.
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. UNINCORPORATED 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. Liederkranz 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.
ASSUMPSIT.
See WHARVES, 2.
1. GARNISHMENT—When not MaINTAINABLE.—A plaintiff in garnishment
can obtain no greater beneficial relief against the garnishee than the
judgment debtor is entitled to; and, if the debtor's recovery is limited
to a mere legal title, without beneficial interest or right of enjoyment
in himself, the proceeding must fail. Marx v. Parker, 849.
2 GARNISHMENT OF TRUST FUNDS.-A judgment creditor cannot have his
debt satisfied out of property held in trust for another, no matter how
completely his debtor may have exercised apparent ownership over it,
unless it was upon the faith of such ownership that the credit was given.
Marx v. Parker, 849.
3. GARNISHMENT OF TRUST FUNDS.-Moneys belonging in equity to a city,
but deposited in bank by one of the city's officers in his individual
name, cannot be garnished in a suit against him by his individual
creditors. Marx v. Parker, 849.
← GARNISHMENT OF TRUST FUNDS.-A public officer of a city, though re-
quired to give bond for the proper payment of moneys coming into his
hands officially, is a bailee and not a mere debtor of the city, and,
although he deposits such moneys in bank in his individual name, they
cannot be garnished at the suit of his individual creditors. Marz v.
Parker, 849.
5. GARNISHMENT-INTERVENTION.-Although a bank summoned as a gar
nishee sets up that it has an account with the judgment debtor as a
depositor, but that the money thus on deposit belongs to a city having
been collected by the judgment defendant in his official capacity as
marshal of such city, and held by the bank as such, it is error for the
court, of its own motion, to require the city to appear as an intervenor.
Marx v. Parker, 849.
& 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 notice
by either party. Cluett v. Rosenthal, 446.
1. AUTHORITY TO GIVE INDEMNITY. -An attorney employed to bring suit
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 name.
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 to 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 dismissed 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 anch
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.
ATTORNEY'S FEES.
See HUSBAND AND WIFE, 5.
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 he
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 agreement 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
until the price is paid. Brown v. Billington, 780.
2 SALE OR BAILMENT.-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 his other debts. Brown v. Billington, 780.
3. 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,
unless he can show that they were not the result of his want of proper
Wintringham v. Hayes, 725.
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 FUNDS.-Funds in the hands of a bank not impressed with a trust
at the time the bank ceases to do business are not impressed with a
trust in the hands of the receiver of such bank. Bowman v. First Nat.
Bank, 870.
3. A BANK INDORSING AND COLLECTING A CHECK WARRANTS THE GENUINE
NESS OF ALL The Pre-existing INDORSEMENTS thereon, including the
indorsement of the respective payees named in such check, and is
answerable for moneys received by it if any of such indorsements are
forgeries. First Nat. Bank v. Northwestern Nat. Bank, 247.
4. BILLS OF EXCHANGE AND CHECKS.-THE ACCEPTANCE OF A CHECK DOES
NOT PROVE OR ADMIT THE GENUINENESS OF ANY Signature THEREON
other than that of the drawer, and will not exonerate from liability a
bank subsequently collecting such check or bill by virtue of a forged
indorsement, though such indorsement was not made by it or with its
knowledge or procurement. First Nat. Bank v. Northwestern Nat. Bank,
5. FORGED INDORSEMENTS.-The drawee of a check is bound to know the
signature of his own customers, but is not bound to know any other
signature thereon, and by accepting or paying a bill or check does not
admit the genuineness of any indorsement of it. First Nat. Bank v.
Northwestern Nat. Bank, 247.
6. A BANK PAYING A CHECK ON A FORGED INDORSEMENT IS ENTITLED to
recover the money so paid from the person receiving it, on making
demand within a reasonable time after the discovery of the forgery.
First Nat. Bank v. Northwestern Nat. Bank, 247.
BENEFICIARIES.
See INSURANCE, 11, 12, 14.
BENEFIT ASSOCIATIONS.
See INSURANCE, 6–14.
BILLS AND NOTES.
See NEGOTIABLE INSTRUMENTS.
See BANKS, 4; CHECKS, 1; Negotiable InstRUMENTS,
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.
2 In an attack upon 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.
2 COUPONS-NEGOTIABILITY-INTEREST.-Interest-bearing coupons at-
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 maturity. Trustees
▼. Lewis, 209.
3. 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-
S--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-
out 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.
See ATTORNEY AND CLIENT, 1; OFFICERS, 7-9.
BOOKS OF ACCOUNT.
See EVIDENCE, 3, 12.
|