See, also, Assignment for Benefit of Creditors; where the creditors failed to appear at the time
Bankruptcy.

solvency is still bound to show that the debt is one
which was affected thereby.-Herrlich v. McDon-
ald, 22 P. 299, 80 Cal. 472.

12. A complaint alleged that defendant was a
dealer in mining stocks; that plaintiff employed her
to purchase mining stock, and gave her a certain
sum to be used for that purpose; that defendant
purchased stock worth that sum, and collected the
dividends thereon; and that plaintiff demanded the
stock and dividends, but defendant refused to de-
liver them. The court found that defendant had
sold the stock at a profit, for the amount of which
judgment was rendered. Held, that the debt was
created "while acting in a fiduciary capacity," and
under insolvency act, § 52, was not affected by a
discharge in insolvency.-Herrlich v. McDonald,
(Cal.) 22 P. 299.

13. On a motion to discharge an execution be-
cause of defendant's discharge in insolvency, it ap-
peared that the findings in the action in which the
judgment on which the execution issued was ren-
dered, were made and filed in 1881, but that the
judgment was not recorded until 1886. Held, that
defendant had had no opportunity to set up as a
defense a discharge in insolvency, obtained be-
tween these dates, and hence it could not be held
that she had waived her right to assert it on the
motion to discharge the execution.-Herrlich v.
McDonald, (Cal.) 22 P. 299.

14. A discharge in insolvency is not a bar to an
action on a contract for hiring for a certain length
of time, for money which became due thereon after
defendants were declared insolvent, as under In-
solvency Act Cal. 1880, c. 87, § 42, only such sums as
were due at the time they were declared insolvent
could be proved, and would be affected by the dis-
charge.-Mooney v. Detrick, (Cal.) 22 P. 1111.

cover, as against the company, for the loss.-Bur-
lington Ins. Co. v. Gibbons, (Kan.) 22 P. 1010.
Action on policy.

3. A complaint, in an action on a life insurance
policy, which contains neither an allegation of
non-payment of the policy, nor one from which the
non-payment can be implied, is fatally defective.
-Richards v. Travelers' Ins. Co., (Cal.) 22 P. 939.

4. In an action on an insurance policy, it ap
peared by plaintiff's calculation that his less
amounted to more than $4,000. One of his witnesses
placed the loss at $3,000. Plaintiff's clerk testified
that he usually had a stock worth $5,000; and anoth-
er witness testified that three weeks before the fire
it was worth $5,000, but that during that time
large amounts of goods had been sold, and little
purchased. Witnesses for defendant put the value
of the stock at much less than $1,000. Held, that
a finding of $4,000 loss was supported by the evi-
dence.-Case v. Manufacturers' Fire & Marine Ins.
Co., (Cal.) 22 P. 1083.

Mutual benefit insurance.

5. In an action by the beneficiary, on a certifi-
cate of mutual benefit insurance, the court found
that at the time when the certificate was issued to
decedent he had become a member of the associa-
tion, and had complied with all its requirements;
that members could only know of the levy of an
assessment by notice served on them; that dece-
dent, on the day he was notified of his suspension
for non-payment of a delinquent assessment, of
which he had had no notice, paid the same, and all
prior assessments due, and a subsequent one which
had not yet become delinquent; that thereafter,
when all assessments had been paid, and accepted
15. An order discharging an insolvent will be by the association, decedent gave notice of the
vacated where, after the time for hearing the peti- substitution of plaintiff for the original beneficia-
tion for discharge has been set, it is ordered, under Ty, in the regular manner; that only one meeting
having taken place since decedent's suspension, at
a stipulation filed, that the matter go off the calen- which no action was taken in reference thereto, he
dar, to be reinstated and set for hearing on stipula-was not reinstated into full membership until
tion or on notice by petitioner, and thereafter, on a shortly after this notice and shortly before his
day subsequent to that originally set, petitioner, death. Held, that there was a sufficient finding
without notice or stipulation, procures the order of that decedent was a "member in good standing"
discharge. In re Wölfe, (Cal.) 22 P. 974.
at the time of his notice.-Millard v. Supreme
Council, (Cal.) 22 P. 864.

Instructions.

See Criminal Law, 25-30; Trial, 6-12.

INSURANCE.

See, also, Marine Insurance.
Conditions of policy.

" not

1. A clause in a policy that, "in case of differ-
ences touching any loss or damage after proof
thereof has been received in due form, the matter
shall, at the written request of either party, be
submitted to impartial appraisers, whose award
in writing shall be binding on the parties,
providing for the number of appraisers or the
mode of their selection, is too vague to give the
company a right to demand arbitration, and the
insured's refusal of such demand does not deprive
him of the right to sue on the policy, or to prove
the full amount of his loss, even though it is more
than stated by him in the proofs.-Case v. Manu-
facturers' Fire & Marine Ins. Co., (Cal.) 22 P. 1053.

Waiver by agent.

2. A fire insurance policy was procured through
a local insurance agent, who did not sign the policy,
and whose name was indorsed thereon only as a
"solicitor," and who had no authority from his
The
company, except as a "soliciting agent."
house was to be occupied by the "owner or tenant,
and in the policy was a provision that, if the prop-
erty became vacant, unless the consent of the sec-
retary was indorsed on the policy, it should be void.
The property became vacant, without the consent
of any agent of the company except the solicitor,
who gave his oral consent that it might remain va-
cant for 30 days. While thus vacant it was totally
destroyed by fire. Held, that the assured cannot re-

6. Such facts are a sufficient finding as to the
denials of the answer regarding the several sus
pensions of decedent, as there was no allegation
that he was suspended at any other time, or for
any other reason than delinquency in paying his
assessments.-Millard v. Supreme Council, (Cal.)
22 P. S64.

7. Such findings of fact, together with a find-
ing that at the time of his death decedent was a
member in good standing and had complied with
all requirements of the association and of his cer-
tificate, are sufficient to avoid an objection that
there was no finding on that issue, though the lat-
ter finding was classed under "conclusions of law."
-Millard v. Supreme Council, (Cal.) 22 P. 864.

8. The beneficiary was not required to furnish
proof of death by the certificate or by laws, the
former merely requiring "satisfactory evidence of
the death of said companion," and proof of death
was required to be furnished to the supreme coun-
cil only by the council of which decedent was a
member. Held, that a finding of satisfactory
proof of death by the beneficiary was immaterial,
and had been waived by defendant in denying all
liability on the certificate.-Millard v. Supreme
Council, (Cal.) 22 P. 864.

9. Where a member of a mutual benefit associa
tion was suspended for non-payment of an assess-
ment, but the association afterwards received and
retained the amounts of all assessments due, it
waived any right of forfeiture it may have had.—
Millard v. Supreme Council, (Cal.) 22 P. 864.

10. An application for a membership in a mutual
insurance company, made a part of the certificate
of membership, stated that it "must be signed by
the applicant, or the certificate, if issued, will be
An application was made by a husband
void. "
for the wife, at her direction, and was signed by
him with the knowledge and consent of the agent
of the company. The action of the husband was

INTERPLEADER.

afterwards approved by the wife. Held, that the
signature to the application became in law the sig-
nature of the wife, and is binding upon the insur-Right to relief.
ance company. Somers v. Kansas Protective
Union, (Kan.) 22 P. 702.

-

11. Where both the general laws of the state
and the by-laws of an incorporated society give it
the right to repeal, alter, or amend its by-laws, it
is not a breach of contract for such society to
amend a by-law which provides that, in case of
sickness, a member shall be entitled to receive $10
per week, by limiting such allowance to a certain
number of weeks thereafter, though a member be
sick at the time of such amendment.-Stohr v. San
Francisco Musical Fund Soc., (Cal.) 22 P 1125.

12. Act Cal. April 2, 1866, relating to the incorpo-
ration of mutual insurance companies, provides
(sections 8 and 9) that no company organized under
the act shall transact business until it shall have
obtained a guaranty fund of at least $250,000, which
shall consist of the notes of solvent parties, paya-
ble to the company as prescribed by its directors, for
the better security of the company's dealers, and
shall be assets, liable for all its debts, next after the
assets arising from premiums and other sources, ex-
clusive of the capital stock, until the profits, to-
gether with the capital stock, shall equal the ag-
gregate of the original guaranty fund, and the
capital stock.. Section 17 provides that each stock-
holder shall be personally liable for the debts of
the company in the proportion which the stock
owned by him bears to the whole amount. Held,
that the claims of the stockholders of an insolvent
company, organized under the act, for moneys paid
by them as stockholders on matured policies, are
payable out of the general assets, and not out of
such guaranty fund.-In re California Mut. Life
Ins. Co., (Cal.) 22 P. 869.

INTEREST.

On purchase money.

1. There being conflicting evidence as to
whether tender of the purchase price was made at
the proper time, the allowance of interest to the
vendors to the time of the trial should not be dis-
turbed, especially where the vendees have been in
possession, and had the use of the property.
Brandt v. Clark, (Cal.) 22 P. 863.

Accounts.

1. When, after the filing of a complaint in in-
terpleader, one of the defendants alleges that a
greater sum is due than plaintiff admits, where-
upon plaintiff amends his complaint to make the
allegation as to the amount agree with defendants'
answer, there is no controversy as to the amount
due, and plaintiff is entitled to relief.—Orient Ins.
Co. v. Reed, (Cal.) 22 P 484.

2. Though plaintiff had previously denied the
right of one of the defendants to the fund in ques-
tion in an action brought by said defendant as as-
signee of the money against him, he can neverthe-
less maintain an action of interpleader, as it is only
when plaintiff denies one of the defendants' claims
in the action of interpleader itself that he can have
no relief.-Orient Ins. Co. v. Reed, (Cal.) 22 P. 484.
Pleading.

3. It is not essential that plaintiff, in a bill for
interpleader, should offer to pay the costs of a
previous action brought against him by one of the
defendants as assignee of the fund in question.-
Orient Ins. Co. v. Reed, (Cal.) 22 P. 484.

INTOXICATING LIQUORS.
Illegal sales-Prosecution.

1. A complaint which charges defendant with
having sold whisky in M. City, in quantities pro-
hibited by a city ordinance, but which fails to
charge that defendant sold the whisky without
having first obtained a license as required by the
ordinance, does not state facts sufficient to consti-
tute an offense.-Cunningham v. Berry, (Or.) 22
P. 115.

2. In a prosecution for the illegal sale of liquors,
one may testify to the location of a building where
the liquors were sold, and the name it is known by,
although he may not know of his own knowledge
that it was occupied by defendant, and does not
know personally of the crime which the defendant
is charged with having committed therein.-State
v. Druitt, (Kan.) 22 P. 697.

Constitutional law.

other state to a point in Kansas are subject to the
3. Intoxicating liquors transported from an
laws of Kansas relating to their sale to the same
extent as are other intoxicating liquors already
rightfully in the state, and cannot be sold at the
place of destination, in the original packages or
other form, except as the laws of the state pre-
scribe. The police power of the state, so exer-
cised, does not infringe on the power delegated to
State v. Fulker, (Kan.) 22 P. 1020.
congress to regulate commerce between the states.

IRRIGATION.

Lien for, see Liens.
Appropriation of water.

2. Plaintiff and defendant entered into an agree
ment by which plaintiff examined and purchased
second-hand machinery, defendant furnishing
all funds, and, after repairs were made, both par
ties used their efforts to sell it, after which de
fendant was reimbursed for all advances, and the
profits evenly divided. Plaintiff, being advised that
the contract was a partnership, gave notice of dis-
solution. He was then indebted to defendant. De-
fendant continued to make sales and collections.
and, when plaintiff sued for an accounting, was in
debted to plaintiff. After the action was brought
several years elapsed before a receiver was appoint-
ed, and defendant still continued the sales and col-
lections. While the contract was in force the par-
ties agreed that interest at 14 per cent. per month
should be charged on all balances. Defendant used
the money collected in his business, but there was
no finding as to his profits. Held, that the agree-
ment as to interest ended when the business con-
tract ended, and that defendant should be charged
with the profits of the fund held in trust by him for
plaintiff, or with interest computed as follows:
Interest should be allowed on the amount due the
defendant from the time of notice of dissolution to
the commencement of the suit at the legal rate, and
also on the sums collected by defendant during
that time, and a balance struck, and on such bal-
ance, beginning at that date, it should be com-
pounded annually at the legal rates; also interest of causes, see Action, 1, 2.
on the sums collected by defendant from time to
time, at like rates, to the next annual rest,-the
amount of these sums forming a new principal; and
this rate should be allowed to the time of the first
decree in the action, and only simple interest there-
after.-Faulkner v. Hendy, (Cal.) 22 P. 401.

Civil Code Cal. § 1415, provides "that a per-
son desiring to appropriate water must post a no-
tice *
Section 1419 provides "that a failure to comply
at the point of intended diversion. "
with such rules deprives the claimant of the right
claimant who complies therewith." Held, that a
to the use of the water as against a subsequent
statute gives a right to continue the diversion as
diversion of water without compliance with the
against a subsequent pre-emptioner of the land
through which the water flows who has also not
complied with the statute.-De Necochea v. Cur-
tis, 22 P. 198, 80 Cal. 397.

Joinder.

parties, see Parties, 3.

JUDGMENT.

In bastardy proceedings, see Bastardy.
ejectment, see Ejectment, 13.

By confession.

1. Strangers to a judgment by confession are
not concluded by its date, nor by its recitals. They
may, upon a complaint setting forth specific aver-
ments of fraud, introduce oral, as well as docu-
mentary and record, evidence to impeach such
judgment.-Schuster v. Rader, (Colo.) 22 P. 505.
By default.

*

2. Under Sess. Laws Colo. 1885, which provide
that, in case no copy of the complaint is served with
the summons, it is "optional with the defendant to
either answer the complaint on or before the sec-
ond Monday after service of summons upon him,
or cause notice of his appearance to be
given, and demand a copy thereof," the defendant
having adopted the latter course, it is error to en-
ter judgment by default against him until such
copy has in fact been furnished him, and the legal
time thereafter for answering has expired.-Gwil-
lim v. First Nat. Bank, (Colo.) 22 P. 458.

Rendition and entry.

3. When the petition and præcipe were filed,
a summons was issued by the clerk, on which he
failed to indorse the amount for which judgment
would be taken if defendant did not answer. On
the following day plaintiff caused a summons,
properly indorsed, to be issued and served. No
answer or demurrer having been filed, plaintiff
moved for judgment, when defendant objected be-
cause the amount claimed was not indorsed on the
original summons. Held, that judgment was prop-
erly entered.-Simpson v. Rice, Friedman & Mark-
well Co., (Kan.) 22 P. 1019.

Nunc pro tunc.

4. An interlocutory decree, reciting that it was
made by agreement of parties, and the report of a
referee, not filed until April 21st, were, by order
of court, filed nunc pro tunc as of March 13th and
March 20th, their respective dates. Held, that
such proceedings were valid, in the absence of
fraud.-Richardson v. Loupe, (Cal.) 22 P. 227.
Res adjudicata.

concluded by the judgment in B.'s favor from
maintaining proceedings to establish a lien against
the property in the hands of B.'s grantees.-Irish
v. Foulks, (Kan.) 22 P. 315.

8. Where it has been determined, in a suit be-
tween plaintiff and defendant's grantor, that a
judgment, under which the latter has purchased
the land in question, was valid, the question is res
adjudicata in a suit between plaintiff and defend-
ants.-Peterson v. Weissbein, (Cal.) 22 P. 56.

9. A judgment in an action against a city, qui-
eting plaintiff's title to land, bars a recovery in
ejectment by the city against the grantees of said
plaintiff; the city having no other title than that
held by it before the judgment. Following San
Francisco v. Holladay, 17 P. 942.-City and County
of San Francisco v. Itsell, (Cal.) 22 P. 74.
Lien.

10. Where the maker of a note transfers land as

security to a surety on the note, and then sells it
to a third person, who, in consideration therefor,
pays the note, a deed of the land executed there
after to such third person by the surety, on an or
der given by the maker of the note at the time of
such payment, relates back to the time of the pay
ment, and takes precedence over a judgment ren
dered in the mean time against the maker of the
note.-Grigsby v. Schwarz, (Cal.) 22 P. 1041.
Pleading.

11. In pleading a judgment it is unnecessary,
after alleging the giving and entry of the judg
ment, to allege further that said judgment was in
full force, and not appealed from.-Carter v. Paige,
(Cal.) 22 P. 188.

Opening and vacating.

12. Gen. St. Nev. § 8090, provides for relieving a
party from judgments taken against him through
his "mistake, inadvertence, surprise, or excusable
neglect." On application to open a default judg.
ment, it appeared that defendants procured the suit
to be instituted against themselves. They em
ployed one attorney for both sides, paid all fees,
and managed the entire case for a time, withdrew
a demurrer they had filed, and asked for and ob-
tained 10 days to file an answer, but filed none,
and, after allowing nearly a year to pass without
further action, a default was entered against them.
They alleged that the action was an amicable one,
instituted for their benefit, on plaintiff's verbal
agreement to convey to them on obtaining judg
ment, and that plaintiff agreed not to take a de-
fault judgment against them. Held, that this did
not excuse their delay in filing an answer, and
their negligence in having one attorney only to
manage both sides of the case, and plaintiff's sub-
sequent action in assigning the judgment to a third
person was not ground for vacating the judgment.

5. Defendants, first mortgagees, brought an ac-
tion to foreclose, and made plaintiff, a second mort-
gagee, a party defendant. Pending suit, plaintiff
bought the mortgagor's interest. After judgment,
but before sale, a receiver was appointed, who col-
lected the rents and profits until the sheriff's deed
was given, defendants having purchased at the
sale, when an account was had, and by order of
court the amount of rents collected was applied in
payment of a deficiency from proceeds of the sale.
Defendants took possession and collected the rents
pending an appeal from the judgment of foreclos-
ure, which resulted in reversal. A new trial was
had, a similar judgment rendered, and defendants-Haley v. Eureka County Bank, (Nev.) 22 P. 1098.
again bought at sheriff's sale. On accounting be-
fore the court on the second trial, defendants had
their mortgage debt credited by the amount re-
ceived from the receiver, and by the amount of all
the rents they had collected up to that time. Held,
that plaintiff could not maintain an action against
them to recover the rents so collected on the ground
that he was the owner during the time defendants
collected them. Having been a party to the fore-
closure proceedings, and having acquiesced in the
accounting, he is bound by the judgment therein.
-Wise v. Walker, (Cal.) 22 P. 293.

13. Gen. St. Nev § 2538. provides that an attor
ney shall have authority "to bind his client in any
of the steps of an action or proceeding, by his
agreement filed with the clerk, or entered upon the
minutes of the court, and not otherwise." District
court rule 27 of Nevada provides that "no agree-
mentor stipulation between the parties in a cause,
or their attorneys, in respect to the proceedings
therein, will be regarded unless the same shall be
entered in the minutes in the form of an order, by
consent, or unless the same shall be in writing
Held, that evidence of an oral agreement by plain.
tiff's attorney not to take any judgment against
defendants was inadmissible on the application to
set aside the default, as this would be in effect an
enforcement of such agreement.-Haley v. Eureka
County Bank, (Nev.) 22 P. 1098.

6. In an action for the diversion of a stream, a
prior judgment restraining defendant from inter-
fering with plaintiff's dam, or with "his turning
out any of the waters from Kentucky ravine, after
said water shall have reached plaintiff's dam, so
long as the quantity shall not exceed 25 inches," 14. A judgment rendered in 1865 cannot be va-
does not estop defendant from proving a prior ap-cated by motion in 1888, on the grounds of want of
propriation by him above plaintiff's dam.-Wixson jurisdiction and payment of claim before suit,
v. Devine, (Cal.) 22 P. 224.
though Code Civil Proc. Cal. § 473, provides for
such proceedings for certain causes within a limit-
ed time.-People v. Goodhue, (Cal.) 22 P. 66.

7. In an action to foreclose a mechanic's lien in
which B., the owner of the real estate, was made a
party defendant, a lien was denied against the real
estate of B. Afterwards an application by plain-
tiff to set aside such judgment was denied as to B.,
and no further action was taken by plaintiff so far
as B. was concerned. Held, that plaintiff was

15. A judgment rendered in 1873 cannot be ra
cated on motion, in 1889, on the ground of want of
jurisdiction of the parties. Following People v.
Goodhue, 22 P. 66.-People v. Harrison, (Cal.) 2

P. 1143.