4 THE LOCUS IN QUO OF A HOUSE BURNED IS STFFICIENTLY ALLEGED where it is set forth as "a certain house then and there owned by him the said " defendant, the words "then and there" referring to a time and county previously stated. Id.

ASSAULT AND BATTERY.

See TRESPASS, 1-7.

ASSIGNMENT.

See BANKS AND BANKING, 6, 7; JUDGMENT, 9.

ATTACHMENT.

1. GARNISHMENT OF PROPERTY NOT IN THE STATE. — One cannot be charged as garnishee in respect to promissory notes or other evidences of indebtedness executed by third parties and belonging to the defendant in the attachment, which at the time of the service of the garnishee process and during the pendency of the suit were in another state. Bowen v. Pope, 330.

2. SERVICE OF NOTICE UPON THE GARNISHEE CREATES A LIEN on the goods of the debtor in his hands, and such goods are not subject to levy and sale upon process thereafter levied during the continuance of such attachment lien. Northfield Knife Co. v. Shapleigh, 224.

3. ACTION IN EQUITY WILL LIE TO DETERMINE PRIORITY OF LIENS AND FOR AN INJUNCTION till final hearing, where there has been service of notices upon garnishee, and other creditors, who have obtained judgments and levied executions upon the garnished property, threaten to sell the same under execution. Id.

4. COURT MAY APPOINT RECEIVER TO TAKE CHARGE OF GOODS WHERE GARNISHEE ABANDONS THE PROPERTY, or where he declines to retain the same in his hands. Id.

5. GARNISHMENT. — ISSUE OF WRIT OF GARNISHMENT, FOR PURPOSE OF ATTACHING the amount due on a policy of insurance, is not premature because at the time of its issuance no proof of loss had been made, and by the terms of the policy proof of loss was required before the com pany could be held liable to pay. Writ of garnishment is not, strictly speaking, an action for the recovery of a debt, but is more in the nature of a bill of discovery, and may be filed in anticipation that a debt or other obligation will mature at some future time. Phenix Ins. Co. v. Willis, 566.

6. WHEN PLAINTIFF CONTESTS Answer of GARNISHEE, SPECIFYING in what particulars he believes it untrue, under oath, it is not necessary that the allegations upon which the issue is made up should be sworn to. Id. 7. UPON GIVING THE STATUTORY BOND TO RELEASE PROPERTY FROM ATTACHMENT, the attachment is dissolved, and the action proceeds to judg ment in personam. Bunneman v. Wagner, 306.

8. Death of a Defendant after the WRIt Has been Levied, and a statutory bond given for the release of the property, does not discharge the sureties on such bond from liability. Id.

9. Whether the Instrument GIVEN TO PROCURE THE RELEASE OF AN ÅT TACHMENT IS A BOND OR AN UNDERTAKING IS IMMATERIAL. An ac

tion brought upon the former instrument is governed by the same principles as if brought upon the latter. Id.

10. IF CREDITOR VOLUNTARILY CONSENTS TO DISSOLVE ATTACHMENT levied upon the goods of his debtor, and relinquishes his lien at the request of any one, the promise of such person to pay the debt thus secured is made upon a valid consideration. The surrender of the lien being a detriment to the creditor is a sufficient consideration for the promise, but to enforce such promise or engagement, it is indispensable that it be in writing. Id.

11. UNDERTAKING IN WRITING, WHEREBY ONE PROMISES AND AGREES to pay the amount of any judgment which the plaintiff might recover against the defendant in an action, is founded upon a valid legal consideration which the defendant receives by the surrender of the property attached in the action, and such undertaking is good as a common-law obligation. Id. 12. BONDS INTENDED TO BE GIVEN IN COMPLIANCE WITH STATUTES, although not so given, if entered into voluntarily, and founded upon a valid consideration, and not in violation of public policy or contravening any statute, will be enforced by common-law remedies. Id.

18. BOND OR UNDERTAKING GIVEN TO OBTAIN RELEASE of property seized upon attachment is not rendered invalid by irregularities in making such attachment. The undertaking having served its purpose to secure the release of the property attached, liability thereon will not be defeated by irregularities in making the attachment. Id.

14. IT IS NOT ESSENTIAL THAT COMPLAINT SET OUT all the facts which authorize the issuing of an attachment. Id.

15. LEVY OF ATTACHMENT IS NOT DISSOLVED by the death of the defendant, unless some statute expressly so declares. Mitchell v. Schoonover, 282.

16. IF AN INDEBTEDNESS IS DISCLOSED by the garnishee, but he also discloses the fact of a claim thereto by a third person as assignee, it is error for the court to order judgment against the garnishee until the claimant is duly cited and made a party; and unless this be done, the rights of such claimant cannot be barred or affected by the judgment. Levy v. Miller, 691.

17. JURISDICTION. -ORDER MADE BY COURT DIRECTING THAT ALLEGED CLAIMANTS of a debt garnished "be made parties, and that notice be served on them," but not prescribing how the notice should be served, is to be construed as meaning personal service within the state, and no other service is sufficient to confer jurisdiction over the absent and non-resident claimants. Id.

18. SHERIFF IS PROTECTED IN MAKING LEVY under a writ of attachment valid and regular, and it is his duty to make the levy, however full his knowledge may be of the insufficiency of the cause of action on which the writ issued, or of the wrongful and malicious intent of the party in suing out the writ. Rice v. Miller, 630.

19. DEFENDANT IN ATTACHMENT WRONGFULLY SUED OUT, THOUGII THERE WAS NO ACTUAL SEIZURE of his property, if the levy was such as to place it in the custody of the law, is entitled to recover such actual damages as result to him from being virtually dispossessed of his property during the time the levy was continued in force, and if there was malice in issuing the process, he is entitled to recover exemplary damages. Id.

See BANKS AND BANKING.

AUCTION.

PRESCRIPTION OF FIVE YEARS CURES ALL INFORMALITIES IN PUBLIC SALE
made at public auction, and this bar is perfect and complete in respect
to minors, married women, or interdicted persons. Linman v. Riggins,
549.

BANKS AND BANKING.

1. IT IS NO PART OF BUSINESS OF BANK TO LOAN MONEY for the public
or for individuals, and in the absence of proof that a bank was engaged
in such business, it must be presumed that its teller, in making a loan of
a customer's money, was acting outside of the scope of his authority as
agent of the bank, and no liability attaches to the bank for the acts of
its teller in making the loan. City National Bank v. Martin, 632.

2. BANK IS BOUND BY ACT OF ITS TELLER IN COLLECTING a note delivered
to him as agent of the bank for collection, it being shown that he had on
other occasions made collections for the bank, and the collection being
made within the apparent scope of his authority. Id.

3. KNOWLEDGE OF BANK-TELLER RELATIVE TO THE COLLECTION OF MONEY
and the ownership of notes left with him for collection must be imputed
to the bank, and notice to him is notice to the bank. Id.

4. BANK HAVING HELD OUT ITS OFFICER TO THE WORLD AS WORTHY of con-
fidence, it will not be permitted to profit by the frauds he may be thus
enabled to perpetrate in the apparent scope of his employment. Id.
5. MINNESOTA ACT OF 1881, prohibiting any banking corporation created un-
der the laws of that state from making loans or discounts on the security
of the shares of its own capital stock, is effectual to prevent such cor-
poration from having a lien upon the stock, as security for such a loan
or discount made subsequent to that enactment, notwithstanding a by.
law of the corporation adopted prior to that statute had provided for
such a lien. Nicollet Nat. Bank v. City Bank, 643.

6. ALTHOUGH SHARES OF STOCK IN BANKING Corporation are BY STATUTE
MADE TRANSFERABLE only on the books of the bank, yet as between the
immediate parties an assignment without such transfer is effectual, and
will be recognized and enforced, at least in equity, as against all parties
not showing a superior right. Id.

7. ASSIGNMENT BY STOCKHOLDER OF SHARES OF BANK STOCK, made for the
purpose of collateral security, and although made without a transfer on
the books of the bank, as required, is effectual as against the bank,
asserting a lien for a debt of the stockholder, contrary to the provisions
of statute; and the refusal of the bank, because of such asserted lien,
to make the proper transfer on its books, subjects it to liability to the
assignee in an action for damages as for the conversion of the stock. Id.
3. ATTACHMENT OF SHARES OF BANK STOCK BY BANK, after notice of an
assignment of the shares, made without a transfer on the books of the
bank, is ineffectual to defeat the prior right of the assignee. Id.

. ACCOUNTS BETWEEN BANKS, LIEN FOR BALANCE DUE ON. - Where there
have been for several years mutual and extensive dealings between two
banks, and an account-current kept between them, in which they
mutually credited each other with the proceeds of all paper remitted
for collection when received, and charged all costs, and accounts were
regularly transmitted from one to the other, and settled upon these
principles, and upon the face of the paper transmitted it always ap-
peared to be the property of the respective banks, and to be remitted

by each of them upon its own account, there is a lien for a general balance upon the paper thus transmitted, no matter who may be its real Carroll v. Exchange Bank, 101.

owner.

10. BANKER'S LIEN. If a receiving and collecting bank, at the time of mutual dealings with the bank sending paper, has notice that such bank has no interest in the paper transmitted, and that it transmits such paper merely as agent, then the collecting bank is not entitled to retain against the bank transmitting the paper for the general balance of the account with such bank. Id.

11. BANKER'S LIEN. If a collecting bank has no notice that the bank sending the remittance was merely an agent, but regarded and treated it as the owner of the paper transmitted, yet the collecting bank is not entitled, as against the real owner, to a lien for general balance of account, unless credit was given to the bank sending the paper, or balances suffered to remain in its hands, to be met by the negotiable paper transmitted, or expected to be transmitted, in the usual course of dealings between the two banks. Id.

12. BANKER'S LIEN. If, in mutual dealings between banks, the collecting bank regarded and treated the bank transmitting negotiable paper as the owner of such paper transmitted for collection, and had no notice to the contrary, and upon the credit of such transmittance, made or anticipated in the usual course of dealing between them, balances were from time to time suffered to remain in the hands of the bank making the remittance, to be met by the proceeds of such negotiable paper, then the collecting bank is entitled to a lien against the real owner of such paper, for the balance of account due from the bank transmitting such paper. Id.

13. THE DIRECTORS OF A BANK are PERSONALLY LIABLE, at the suit of a depositor, for damages sustained by reason of the insolvency of the corperation, when the depositor is induced to place money in the bank salely by false representations of solvency made to the general public by the directors, who ought to have known, and, by the use of ordinary care, such as it was their duty to have exercised, might have known, that such representations were false, and they are so liable whether such representations were made with the intent to defraud or not. Seale v. Baker, 592.

BONA FIDE PURCHASER.

Bee CLOUD ON TITLE, 4; EXECUTIONS, 14; EXECUTORS AND ADMINISTRATORS, 6; JUDICIAL SALE, 2; Mortgages, 2; Vendor and Vendee, 3.

BOND.

See ATTACHMENT, 7–13.

BURDEN OF PROOF.
See EVIDENCE, 6.

CARRIERS.

1. SLEEPING-CAR COMPANY IS NOT LIABLE AS COMMON CARRIER FOR INJURY TO STRANGER, who, upon entering one of its cars to ask the privi lege of washing his hands, is wantonly and without provocation assaulted and beaten by the porter of the car. There is, in such case, no contrac tual relation between the stranger and the company, and its responsibility,

if it exists, must be found in the general principles of the law of master
and servant as applicable to all masters similarly situated. Williams v.
Palace Car Co., 512.

2. PORTER OF SLEEPING-CAR HAS NO AUTHORITY TO ENFORCE RULES and reg-
ulations of the company, or to forcibly prevent any person from entering
the car, or to expel him therefrom after he has entered, and if he wan-
tonly assaults and beats one who enters the car for a lawful purpose, his
act is outside of the functions in which he is employed, and the com-
pany will not be liable therefor, unless it had expressly or impliedly
authorized the act, or been guilty of knowingly employing a dangerous
servant. Id.

3. SLEEPING-CAR COMPANY IS NOT NEGLIGENT IN EMPLOYING PORTER who,
for three years in its service, had borne a good character for sobriety,
amiability, and politeness. Id.

-

4. AGENT'S STATEMENT. — PURCHASER IN GOOD FAITH OF RAILWAY PAS-
SENGER-TICKET HAS RIGHT TO RELY upon the statement of the com.
pany's agent who sold him the ticket that it was good, and entitled
him to a ride between two stations named, the ticket being a genuine
one issued by the company, which the agent had a right to sell to pas-
sengers. The ticket constitutes the evidence agreed upon by the par-
ties, by which the company should thereafter recognize the rights of the
purchaser in his contract, and is conclusive upon the subject. Huford
v. Grand Rapids and Indiana R. R. Co., 859.

5. PRESUMPTION OF LAW IS, THAT PERSON RIDING ON CONSTRUCTION
TRAIN, BY PERMISSION of an employee of a railway company, is not law-
fully thereon; but this presumption may be overcome by special circum-
stances, as where, for instance, the company is in the habit of allowing
its employees to ride on such trains to and from their work or their
homes. Rosenbaum v. St. Paul and Duluth R. R. Co., 653.

6. PERSON RIDING ON CONSTRUCTION TRAIN IS DEEMED TO CONSENT TO and
to accept all the usual incidents to such a train running over a side-
track constructed in the usual way. But if, through failure of the com-
pany to spike the rails, or neglect to keep the track in suitable repair for
the temporary purposes for which it was constructed and used, an injury
occurs to one lawfully on the train, without fault on his part, he may

TO INVOKE JURISDICTION OF SUPREME COURT UNDER CERTIORARI AND
PROHIBITION, RELATOR MUST ESTABLISH one of three things: 1. That
the proceedings are infected with some fatal irregularity rendering them
absolutely void; or 2. That the jurisdiction of the cause did not belong
to the court which assumed it, but to a different court; or 3. That the
cause is of a nature jurisdiction of which is denied to any court, because
not within the limits of judicial power. State ex rel. Patton v. Houston,
532.

CHARACTER.

See CRIMINAL LAW, 5.

CHATTEL MORTGAGE.

See MORTGAGES, 1.