3. An annuity created by will, to be paid to an adult during the lifetime of the husband of the testatrix, is not apportionable in the absence of anything in the will to indicate such an intent; and, in case the husband dies before the first payment becomes due, the annuitant will receive nothing. Id. 4. An annuity to take effect from and after the death of the donor is payable, not in advance, but at the termination of the yearly periods commencing with his death. Mower v. Sanford (Conn.) 625 on her former husband's life, that, by virtue of the Hawaiian laws and the decree of divorce thereunder, all her rights in such policy had passed to and become the property of her husband, is not the special assertion of a right or claim under the treaty with Hawaii, which is essential, under U. S. Rev. Stat. § 709 (U. S. Comp. Stat. 1901, p. 575), to confer jurisdiction on the Supreme Court of the United States to review a judgment of a state court adverse to such right or claim. Mut. L. Ins. Co. v. McGrew (U. S. Sup. Ct.) 33 2. A decision of a state court cannot be reviewed in the Supreme Court of the United States as a denial of full faith and credit to an Hawaiian judgment, where the Federal right did not exist when judgment of the trial court was rendered because the Hawaiian islands had not then been annexed to the United States, and such contention was not brought to the attention of the highest state court in any form. Id. 6. A Federal question first raised in a petition for rehearing in the highest state court is raised too late to confer jurisdiction upon the Supreme Court of the United States, where such petition was denied Jurisdiction of United States Su- without opinion. Mut. L. Ins. Co. v. Mepreme Court. 1. An averment in an answer in a suit by a divorced wife on a policy of insurance Grew (U. S. Sup. Ct.) 33 How Federal question must be raised. 7. A judgment of a state court cannot be reviewed in the Supreme Court of the United States on the ground that it denied a right, title, privilege, or immunity secured by the Federal Constitution, where it does not appear on the face of the record that such right, title, privilege, or immunity was specially set up or claimed in the state court. Home for Incurables v. New York (U. S. Sup. Ct.) 329 8. A certificate of the chief judge of the highest state court that a Federal question was involved is not properly a part of the record, and is insufficient in itself to confer jurisdiction on the Supreme Court of the United States to review a judgment of the state court or to determine Federal questions which do not appear from the record to have been brought to the attention of that court. Id. 9. A judgment of a state court in condemnation proceedings is not reviewable in the Supreme Court of the United States on the theory that a question respecting due process of law was decided thereby, where there is nothing in the record which ade quately shows that the state court was led to suppose that any claim was made under the Constitution of the United States, or that any ruling involved a decision against a right set up under that instrument. Hooker v. Los Angeles (U. S. Sup. Ct.) 471 11. Objection to the giving or refusing of instructions found in the record cannot be considered by the supreme court, where the record affirmatively shows that all the instructions given are not in it. Id. Raising questions in lower court. 12. That the death of deceased was not produced solely by the act of accused cannot be raised as a defense to a prosecution for murder for the first time on a petition for rehearing in the appellate court under the Texas Code of Criminal Procedure. White v. State (Tex. Crim. App.) 660 Hearing and determination in general. tion to plaintiff by the trial court, after is18. The granting of a temporary injuncdavits of both parties, is, for the purpose of sue joined, and upon the pleadings and affireviewing the action of the court, deemed to be, in effect, a finding that the allegations of the complaint upon which the writ is the order granting the writ, the appellate prayed for are true; and, upon appeal from court will review the affidavits only to the extent of determining whether they fairly tend to support the allegations of the complaint. Gray v. Building Trades Council (Minn.) 753 19. Errors in rulings at a trial upon a plea to the jurisdiction in which a judg 427 20. Submission to the jury of the issue of murder in the first degree is not reversible error where accused is found guilty of murder in the second degree, thereby acquitting him of the higher charge. White v. State (Tex. Crim. App.) 660 21. A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial, where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury. State v. Stentz (Wash.) 13. The question of whether a petition states a cause of action, or discloses grounds sufficient for the granting of equitable relief, may be raised at any stage of the proceedings in the appellate court, up to and including the filing of a motion for a rehearing. Vila v. Grand Island E. L. I. & C. S. Co. (Neb.) 791 14. Exceptions to the conclusions of a surrogate that the next of kin of an intestate, who was not made a party to the ad- 22. A ruling admitting competent eviministrator's accounting, cannot institute a'dence to be given by a witness who at the 807 time was incompetent, over the objection that the evidence was not competent, does not require a reversal where evidence subsequently admitted removed the disability, and by a proper objection the witness might have been qualified before his testimony was received. Hoag v. Wright (N. Y.) 163 When finding of trial court is conclusive. 748 How and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States:-(I.) Scope of note; (II.) presentation of the Federal question to the state court: (a) how raised: (1) the general rules; (2) illustrative cases; (b) when presented in 23. Rejection of evidence that one joint maker of a promissory note was financially responsible at the time the payee is alleged to have accepted his individual note in pay-time; (III.) the decision of the Federal ment of the joint note upon which the action is brought is not reversible error, although the verdict is in plaintiff's favor, since that fact would have no tendency to show that the obligation of the other responsible makers was voluntarily surrendered. Brink v. Stratton (N. Y.) 182 24. Ruling out a question to a motorman whose car collided with a bicyclist as to whether or not he would have moved his car forward if he thought that he was endangering life is not reversible error, where he is subsequently permitted to testify that he thought that by so doing he would avoid a collision, and that it would be dangerous to stop. Harrington v. Los Angeles Ry. Co. (Cal.) 238 25. A ruling sustaining a demurrer to the evidence will not be reversed, notwithstanding that sufficient evidence was actually admitted by the trial court to make a prima facie case for plaintiff, where a part of the evidence essential for that purpose was incompetent and admitted over proper objection, although it was not formally stricken out, and no notice was given plaintiff that it was to be disregarded. Lee v. Missouri P. R. Co. (Kan.) 271 26. In an action for damages for personal injuries, if the declaration shows the jurisdiction of the court, and no plea in abatement has been filed, the judgment will not be reversed for want of proof of the venue as laid. Snyder v. Philadelphia Co. (W. Va.) 896 27. The allowance of bad pleas is harmless error, if no evidence is given under them. Tower v. Whip (W. Va.) 937 28. A party cannot complain of the court's modification of an instruction to which he is not entitled. Harrington v. Los Angeles Ry. Co. (Cal.) 238 29. Defects in portions of a charge to the jury do not require a reversal if the charge as a whole was an accurate statement of the law, and the defects could not have misled the jury. State v. Power (Wash.) 902 NOTES AND BRIEFS. Appeal; by distributee from decree on accounting of which he had no notice. 07 question by the state court: (a) necessity of decision; (b) essential requisites to decision: (1) in general; (2) application of the rules to different Federal questions; (c) nature of decision as affecting right of review; (d) decision need not be erroneous; (e) decision must be controlling; (IV.) conclusion. 33 What questions the Federal Supreme Court will consider in reviewing the judg ment of state courts:-(I.) The general rule; (II.) particular questions not reviewable: (a) non-Federal questions in general; (b) statutory construction; (c) validity of state legislation; (d) questions not involved in the record; (e) questions of fact; (f) miscellaneous; (III.) the rule where constitutional rights are involved: (a) impairment of contract obligations; (b) full faith and credit; (c) due process of law; (d) equal protection of the laws; (IV.) con clusion. 571 The record for the purpose of showing jurisdiction in the Supreme Court of the United States of a writ of error to a state court:-(I.) In general; (II.) findings of fact; (III.) opinion of state court; (IV.) certificate of state court; (V.) petition for writ of error; (VII.) counsel's arguments rehearing; (VI.) petition for allowance of or briefs; (VIII.) assignment of errors. 329 What the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court:-(I.) Introduction; (II.) the general rules; (III.) presentation as affected by the class to which the Federal question belongs; (IV.) the decision of the Federal question; (V.) effect of certificate of state court; (VI.) conclusion. 471 Failure of special judge to take oath as reversible error. 938 Denial of right to open and close a case to the jury as reversible error. 320 Error in refusing to give any instruction where petition is traversed and proof intro647 duced in support of allegations. Error in instructing jury that servant Assault; homicide in commission of. ASSUMPTION OF RISK. 375, 391 See MASTER AND SERVANT, 7-15. ATTACHMENT. Jurisdiction to Render Personal Judgment against Nonresident, JUDGMENT, 1. NOTES AND BRIEFS. see Attachment; of property of nonresident; jurisdiction of court. 207 ATTEMPT. NOTES AND BRIEFS. Attempt; to commit crime; what consti tutes. 359 Liability of Express Company in Taking Wrong Baggage from Hotel, see CARRIERS, 34. BANKRUPTCY. Permitting a mortgagee to take possession of mortgaged chattels after the mortgagor has become insolvent, under an unrecorded mortgage which had been in existence a long time, is an act of bankruptcy under the act of Congress of 1898, and the preference thereby secured will be defeated by the institution of bankruptcy proceedings within four months after that time. man v. Humphrey (Mass.) NOTES AND BRIEFS. Tat 738 Bankruptcy; permitting mortgagee to take possession of chattels after insolvency of mortgagor as act of. BANKS. 738 1. The Kansas banking law of 1891 suspended the savings bank act of 1868, and thereafter all savings banks previously organized and engaged in the business of receiving money on deposit were amenable to its provisions. West v. Topeka Sav. Bank 137 (Kan.) 2. If the cashier of a bank, without actual authority so to do, undertakes to pay his individual debts by entering the amount thereof as a credit upon the passbook of his creditor, who keeps an account with the bank, the bank may recover of his creditor the amount of money it may put out upon. checks drawn upon the faith of the unauthorized passbook entries. Hier v. Miller (Kan.) 952 3. The cashier of a bank organized under the laws of Kansas has no implied authority to pay his individual debts by entering the amount of them as a credit upon the Maintenance of Quo Warranto Proceed-passbook of his creditor, who keeps an acings by, see Quo Warranto, 1, 2 count with the bank, and permitting the creditor to exhaust such account by checks which are paid, the bank having received nothing of value in the transaction. Id. Collections. 4. A drawee bank which pays a raised check under the mistaken belief that it has not been altered cannot compel the collecting bank to refund the excessive amount after it has, in good faith and without notice of the fraud, turned the proceeds over to the payee, where the indorsement of the collecting bank is restrictive, and the drawee knows that it holds the check merely for collection. Crocker-Woolworth Nat. Bank v. Nevada Bank (Cal.) 245 5. Clearing house rules that paper not owned by a bank, but deposited for clear. Injury to Rider by Street Car, see STREET RAILWAYS, 5. ance, shall bear a stamped indorsement | BICYCLES. which shall guarantee the validity of all prior indorsements, abrogates, as between members of the clearing house, a statutory provision that a general indorsement warrants that the paper is "in all respects what it purports to be." Id. 7. Mere presentation of a check for payment by a bank, which has indorsed upon it a restrictive indorsement, does not constitute a warranty that it is what it purports to be, and has not been altered from the form in which it was originally drawn, when by statute a contract of sale does not imply a warranty except as provided by the statute, which provides that the seller of a note merely warrants that he has no knowledge of defects. Id. 8. A bank cannot recover money paid on a raised check from the collecting bank, merely because the evidence might justify a presumption that it relied upon the rep resentations of the latter as to the genuineness of the paper, unless the evidence is conclusive of the fact, where it does not plead such reliance. Id. Injury to Rider by Street Car, Question for Jury, see TRIAL, 5. BILL OF DISCOVERY. To Reach Choses in Action of Judg. ment Debtor, see EQUITY, 1. BILLS AND NOTES. Collection of Checks by Banks, see by a party was procured by deception and A plea that a negotiable note signed fraud in representing it to be a paper of different character is not good against a holder for value, who acquired it in due course of business before maturity, unless the plea aver notice to the holder of such fraud and deception before he acquired the note. Tower v. Whip (W. Va.) 937 Bonds; of coexecutors; joint and several; right of one executor as beneficiary under will to maintain action against sureties on the bond for default of coexecutor. 235 |