INDEX.

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ABANDONMENT.
See HOMESTEAD, 3.

ABATEMENT.

See NUISANCES, 4-8.

ACCORD AND SATISFACTION.

PLEA OF ACCORD AND SATISFACTION MUST AVER DELIVERY AND ACCEPT-
ANCE. A plea of accord and satisfaction which does not aver a delivery
and an acceptance of the goods in satisfaction of the debt is bad. Han-
cock v. Yaden, 396.

ACCOUNT STATED.

See BANKS AND BANKING, 2.

ACCOUNTING.

See PARTNERSHIP, 4, 5.

ACKNOWLEDGMENTS.

See DEEDS, 4-6.

ADMIRALTY.

1. WHERE ADMIRALTY JURISDICTION OF THE UNITED STATES COURT AT-
TACHES, IT UNDOUBTEDLY EXCLUDES the jurisdictions of the state courts,
and a state cannot confer jurisdiction upon its courts in such cases; but
it is essential to a suit in rem in admiralty against a vessel that an actual
seizure be made of the vessel, and it be subjected primarily to the satis-
faction of the judgment. Gindele v. Corrigan, 292.

2 LIENS AGAINST VESSELS MAY BE ENFORCED in the STATE COURTS, where
the proceeding to enforce them does not amount to an admiralty pro-
ceeding in rem, or otherwise conflict with the constitution of the United
States. Id.

3 ATTACHMENT OF VESSELS. THERE IS NO MORE VALID OBJECTION TO
ATTACHMENT PROCEEDINGS to enforce a lien in a suit in personam, by
holding a vesssl by mesne process to be subjected to execution on a per-
sonal judgment when recovered, than there is in subjecting her to seizure
on the execution. Both are incidents of a common-law remedy, which a
court of common law is competent to give. Id.

4. PROCEEDINGS AGAINST VESSELS. Where, under the statute of Illinois,
a proceeding is commenced against a vessei whose owners are alleged to
be unknown, to recover damages resulting from its collision with an-
other vessel, and a writ of attachment is issued, under which the vessel

is attached, and thereafter the persons claiming to be her owners give
bonds for the release of the attachment as provided by statute, and the
vessel is thereupon discharged and released, and after due trial judg.
ment is rendered against the principal and sureties on the bond, the
proceeding becomes in personam, and has no similitude to admiralty
proceedings in rem, and the state courts have jurisdiction to enter judg.
ment. Id.

ADULTERY.

See CRIMINAL LAW, 14, 15.

AGENCY.

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1. AUTHORITY OF AGENT TO COLLECT. — Authority to an agent to sell goods
does not include authority to collect pay for the goods sold. Kane v.
Barstow, 490.

2. AGENT'S AUTHORITY.

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Rule that principal is bound by the acts of his
agent within the apparent scope of his authority is applicable only when
there have been previous transactions of a similar character, in which
the agent exceeded his powers, and which have been ratified by the
principal without question, and without knowledge on the part of the
third party of a limitation of the agent's authority, and an excess in
the particular case, whereby such party is led to believe that the agent
has all the powers assumed. Id.

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3. EVIDENCE OF AGENT'S AUTHORITY TO MAKE Contract, and oF CUSTOM.
- Where the authority of an acknowledged agent to make a contract
giving a jobber an exclusive right to sell a certain line of cigars in a cer-
tain territory is questioned, the evidence of another jobber of like goods
in the same territory that a custom or usage existed for such traveling
agents to make similar contracts to the one in suit is admissible, and
should be submitted to the jury to aid it in determining whether the
agent had authority to make the contract in question. Kaufman v.
Farley etc. Co., 462.

4. NOTICE TO AGENT IS NOTICE TO PRINCIPAL. - A principal employing an
agent to sell machinery, but agreeing with him that notes given in pay.
ment shall be taken in the name of the principal, and guaranteed by the
agent, is chargeable, in an action against the maker of a note taken by
the agent, with the latter's knowledge that such note was not taken in
payment for machinery. Johnston H. Co. v. Miller, 536.

5. PRINCIPAL CANNOT RATIFY FRAUD OF HIS AGENT by accepting a note
which is the fruit of such fraud, and suing upon it, and claiming at the
same time to be a holder of the note in good faith, because the agent did
not acquaint him with the circumstances ander which he procured it
when he sent it to him, but led him to suppose that it had been taken in
the ordinary course of his agency. Id.

6. AGENT'S DECLARATIONS OF HIS AGENCY are inadmissible in an action
between the principal and a third party, for the purpose of establishing
Kane v. Barstow, 490.

the agency.

7. AGENCY OF WITNESS CANNOT BE ESTABLISHED by his own declarations.
Omaha etc. Co. v. Tabor, 185.

8. AGENT'S RIGHT TO COMMISSIONS.

- An agent employed to sell real estate,
who first brings it to the notice of the person who ultimately becomes
the purchaser, is entitled to his commissions on the sale, although the
latter is effected by the owner of the property, nor can the owner evade

his liability to pay the agent his commissions by selling for a sum less
than the price given the agent, when the reduction is made of the own-
er's own accord. Plant v. Thompson, 512.

AGENT'S RIGHT TO COMMISSION ON SALE OF REAL ESTATE. Under an
exclusive agency to sell real estate on commission, the exclusive right to
sell not being given, the owner has a right to make a sale independent
of the agent, and, in such case, will not be liable to the agent for com-
mission unless he sells to a purchaser procured by the agent. Dole v.
Sherwood, 531.

10. EFFECT OF EXCLUSIVE AGENCY TO SELL Land.

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An exclusive agency

to sell land merely prohibits the placing of the property for sale in the
hands of any other agent, but not the sale of the property by the owner
himself. Id.

11. RIGHT TO TERMINATE AGENCY.-When the compensation of an agent
is dependent upon the success of his efforts in procuring a contract for
his principal and his subsequent performance of the work, the principal
will not be permitted to stimulate his efforts with the promise of reward,
and then, when the contract is obtained and the compensation assured,
to terminate the agency for the purpose of securing to himself the agent's
profits. Though the principal might have terminated the agency at any
time before there was a reasonable assurance that the contract would be
obtained, he cannot, after it is obtained, put an end to the agency in
bad faith, and as a device to deprive the agent of the fruits of his labor.
Warren etc. Mfg. Co. v. Holbrook, 788.

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12. POWER OF ATTORNEY. — Assignment for benefit of creditors may be exe-
cuted by an agent or an attorney in fact especially authorized thereto,
but the power must, in express terms, grant the authority. Gouldy v.
Medcalf, 912.

13. CONSTRUCTION.

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The authority derived from a general power of attor-
ney is limited to the exercise of the acts authorized by the language
employed in granting the special powers. Id.

14. AUTHORITY CONFERRED BY POWER OF ATTORNEY will be construed
strictly, so as to exclude the exercise of any power which is not war-
ranted, either by the actual terms used, or as a necessary means of exe-
cuting the authority with effect. Id.

Bee CARRIERS, 6; Corporations, 10, 12, 14; Damages, 3; Factors; Nego-
TIABLE INSTRUMENTS, 22, 23; Sales, 5.

AMENDMENTS.

See JUDGMENTS, 18, 19, 20; PLeading, L.

ANIMALS.

1. VICIOUS ANIMALS-DUTY OF OWNER WITH NOTICE OF VICIOUSNESS OF.

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When it appears that a domestic animal is vicious, and has a propen.
sity to do mischief, of which facts the owner or keeper has notice, either
express or implied, the law imposes the duty upon him of keeping such
animal secure, from which duty a liability arises in favor of any person
who, without fault on his part, is injured by it, either in person or prop-
erty, through the negligence of such owner or keeper. Knowles v. Mul
der, 627.

2 VICIOUS ANIMALS - NOTICE OF VICIOUSNESS.

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The owner of a domestio

animal may be chargeable with notice of its viciousness through his neg.
ligence to take notice of its vicious habits. Id.

3. VICIOUS ANIMALS - NOTICE OF VICIOUSNESS.

- If a person has a dog in
his possession for a considerable length of time, and such dog has all that
time been in the habit of rushing into the highway in front of the owner's
residence, and of barking at, chasing, worrying, or attacking passing
teams in a ferocious manner, a question is presented to the jury to find
whether the owner was aware of such habit, or if not, if he was negli
gent in not knowing it, and the facts may be such that it may well be
found that he ought to have known it, and therefrom imply notice to
him. The length of time such vicious habit is shown to have existed
has an important bearing upon whether notice or knowledge of such
habit may be inferred or imputed to the owner. Id.

APPEAL AND ERROR.

1. ASSIGNMENT OF ERROR that "the court erred in sustaining the motion
made by plaintiff at the close of defendant's testimony, and directing a
verdict for plaintiff," is not open to objection as not being sufficiently
specific, or as assuming that the motion asked the court to direct a ver-
dict for plaintiffs. Kaufman v. Farley etc. Co., 462.

2 WHAT WILL BE CONSIDERED ON.

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Where exceptions are taken and
errors assigned, independent of the motion for a new trial, which was
filed too late to be available as a ground upon which to base an assign-
ment of error, the appellate court may review and reverse the action of
the court below. Id.

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3. RECORD ON APPEAL. — The supreme court of Illinois will not consider as
a part of the record anything which was not before the appellate court
when the case was decided there. If the record is amended in the trial
court, such amendment will not be considered in the supreme court if it
was not made a part of the record of the appellate court. Claflin v.
Dunne, 263.

4. QUESTION AS to Illegality OF CONSIDERATION of a note sued upon can-
not be raised for the first time on appeal. Jennings v. First Nat. Bank,
210.

5. JUDGMENT ON FACTS WITHOUT JURY CONCLUSIVE. When a jury is
waived, a decision of the court upon the facts is, in legal effect, equiva
lent to a verdict of the jury, and in the absence of statutory power will
not be reviewed on appeal, except in cases where such verdict cannot,
as matter of law, be supported by any reasonable inferences from the
evidence. Boyd v. State, 31.

6. ERROR IN OVERRULING MOTION FOR NONSUIT IS WAIVED by evidence
offered by defendant in his own behalf which supplies the defect existing
in plaintiff's proofs. Jennings v. First Nat. Bank, 210.

7. EXCLUSION OF WITNESSES, or of any particular witness, from the court-room
during the trial is within the discretion of the trial court, and cannot be
reviewed on appeal. Barnes v. State, 48.

8. DISCRETION OF COURT. - Refusal of the court to put a witness under the
rule, and compel his withdrawal from the court-room during the exam-
ination of another witness, is a matter within the discretion of the court,
and not subject to review on appeal. McGuff v. State, 25.

See ATTACHMENT AND GARNISHMENT, 3; NEW TRIAL; OFFICE AND OFFICERS,

2, 3.
ASSAULT.

See CRIMINAL LAW, 16, 17; LANDLORD AND Tenant, 19.

ASSIGNMENT.

See GIFTS; INSURANCE, 20; Landlord and Tenant, 1–7.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

FOREIGN ASSIGNMENT

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CONFLICT OF LAWS. — An assignment or transfer of
property, giving preference to certain creditors, and valid by the laws of
another state where made, will not be upheld by the courts of Minnesota
when contrary to the policy and laws of that state, as to property situated
there. Matter of Dalpay, 729.

See AGENCY, 12

ASSUMPSIT.

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1. WAIVER OF TORT TO SUE IN. — Before a party can waive a tort for the con-
version of personal property and bring assumpsit, the property in the
hands of a tort-feasor must have been sold and converted into money,
upon the theory that the money has been received for the plaintiff's
use. Tuttle v. Campbell, 652.

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2. WAIVER OF TORT TO SUE IN. - Where a contract may exist, and at the
same time a duty is superimposed or arises out of the circumstances sur-
rounding the transaction, the violation of which duty would constitute
a tort, and the property has been converted, but not sold, the tort may
be waived and assumpsit maintained, for the reason that the relation of
the parties, out of which the duty violated grew, had its inception in
contract and relations of trust and confidence. Id.

See Co-TENANCY, 9-10.

ATTACHMENT AND GARNISHMENT.

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1. EFFECT OF RECITALS OF INDEBTEDNESS IN AFFIDAVIT. — When an officer
justifies the holding of goods under a writ of attachment valid upon its
face, the recital of indebtedness in the affidavit raises a presumption of
such indebtedness. If this presumption is rebutted, it then devolves
upon the officer to prove the indebtedness by other evidence than the
affidavit; but in the absence of such rebutting proof, the attachment
papers are a sufficient showing upon the part of the officer to enable him
to contest the title of the party seeking to reclaim the goods taken,
whether the action is replevin, trespass, or trover. Treat v. Dunham, 616.
2 JUDGMENT AS EVIDENCE. — A judgment against a plaintiff in attachment is
not admissible in evidence for the purpose of showing that there was no
indebtedness due, at the time of issuing the writ of attachment, from the
defendant to the plaintiff, until four days after the rendition of the ver-
dict upon which the judgment is based. ld.

3. EFFECT OF APPEAL FROM JUDGMENT. A judgment against a plaintiff in
attachment which is appealed from does not dissolve the attachment,
but the lien continues until the final disposition of the case. Id.

4. RIGHT OF PARTY FOUNDED SOLELY ON LIEN OF JUDGMENT OR ATTACHMENT
IS SUBORDINATE to that of a purchaser in good faith. Shirk v. Thomas,
381.

5. GARNISHMENT.-MAKER OF NEGOTIABLE PROMISSORY NOTE cannot be
charged in garnishment before its maturity, on the ground that he knew
when he executed it that it was the purpose of the payee to place the
fund beyond the reach of his creditors. Willis v. Heath, 876.

AM. ST. REP., VOL. XVI. — 60