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§ 2. Operation and effect.

When a tenant is placed in possession of a definite part of a larger tract of land, the possession will not avail the landlord beyond the part so claimed and held. -Bell y. North American Coal & Coke 06., 155 Fed. 712....

84 O. O. A. 60


Particular proceedings or purposcs.

See “Contempt," § 1.


See “Contracts."


Criminal jurisdiction of United States court in, see "Criminal Law," § 1.
Review of district court, in suit for divorce, see “Divorce," § 1.


False swearing in naturalization proceedings, see “Perjury," § 1.
Jurisdiction of United States court of offense of false swearing in naturaliza-

tion proceedings, see “Criminal Law," & 1. Testimony of accomplices and codefendants in prosecution for giving false

testimony in naturalization proceedings, see “Criminal Law," $ 9.


See “Divorce,” 2.


Of application for patent, see "Patents," $ 2.
Of judgment, see "Judgment,” g 1.


In pleading, see “Pleading,” $ 3.


Op patents, see “Patents," $ 6.

See “New Trial."
Appellate jurisdiction of United States courts, see "Courts," $ 2.
Review in action for divorce, see "Divorce," $ 1.
Review in bankruptcy proceedings, see “Bankruptcy," $$ 6. 7.
Review in criminal prosecutions, see "Criminal Law," $f 12, 13.
§ 1. Decisions reviewable.

An order made by a Circuit Court under Rev. St. $ 724 (U. S. Comp. St. 1901, p. 583], requiring a party to an action at law to produce books or writings at the trial, is an interlocutory and not a final order, and is not reviewable on a writ of error prior to final judgment in the cause. - Pennsylvania R. Co. v. International Coal Min. Co., 156 Fed. 765..

84 0. C. A. 421

§ 2. Presentation and reservation in lower court of grounds of review.

A motion for a new trial is not essential in a federal court to entitle a party to a review of the judgment on writ of error by the Circuit Court of Appeals. -Aaron v. United States, 155 Fed. 833. ...

...84 C. C. A. 67 A defendant may assign for error the overruling of a motion to dismiss, made at the close of plaintiff's evidence, on the ground that there was no issue of fact for submission to the jury, although such motion was not renewed at the conclusion of all the evidence, where the only question in issue under the evidence was the proper construction of a written contract plain in its terms, upon which defendant's evidence had, and could have, no bearing. -Lydia Cotton Mills v. Prairie Cotton Co., 156 Fed. 225.

84 C. C. A. 129 The question of want of mutuality in the contract on which a counterclaim is predicated is properly raised by the record; plaintiff baving at the close of the evidence moved for an instructed verdict on the ground that defendant showed a failure of consideration on the part of plaintiff for the contract, and the overruling of the motion having been assigned as error, and such assignment insisted on in the brief. -A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719...

84 C. C. A. 145 An exception by a defendant to testimony brought out by him on crossexamination of a witness for plaintiff, and a motion to strike out such testimony, are insufficient under the circumstances according to the practice of the federal courts to raise any question for review by the appellate court, where the record does not show that any grounds for either were given or any reason shown why the testimony was improper. -Katahdin Pulp & Paper Co. v. Peltomaa, 156 Fed. 342..

84 C. O. A. 238 To entitle a party to assign as error, in an appellate court, that there was no evidence in support of the verdict rendered, the question must have been presented to the trial court by a motion for direction of a verdict, and due exception taken to its refusal. -Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 Fed. 80.

84 C. C. A. 584 Where it was agreed between counsel that certain printed articles should be taken by the jury, error cannot be assigned because they were not so taken, where no request therefor was made to the court, and consequently no ruling made. -Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 Fed. 80..

84 C. C. A. 584 To render the rulings of a trial court, admitting or rejecting evidence reviewable on a writ of error, the record must show an exception, taken to each ruling, assigned as error, and, where an objection was sustained to a question, the answer expected. -Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 Fed. 80.

84 C. C. A. 584 $ 3. Assignment of errors.

The provision of Circuit Court of Appeals rule No. 11, that the court, at its option, may notice plain errors not assigned, reserves to the court, in the interest of justice, the right, resting in public duty, to take cogni. zance of palpable errors on the face of the record and proceedings, especially such as clearly demonstrate that the suitor has no cause of ac. tion. -A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719.

84 C. C. A. 145

§ 4. Review-Scope and extent in general.

A question not put in issue by the pleadings, nor covered by the decree of the court below, and the determination of which was not necessary to the decision made, will not be determined by the appellate court, although the trial court may have made a finding thereon. -Hessian v. Patten, 156 Fed. 956...

.84 C. C. A. 456

§ 5. Parties entitled to allege error.

Where, after the entry of an ex parte order appointing a temporary receiver, the defendant by agreement made by counsel consented to the retention of the receivership, he cannot review such order on an appeal taken from a subsequent decree in the cause.

-Haight & Freese Co. v. Weiss, 156 Fed. 328........84 C. C. A. 224

$ 6. Presumptions.

Where an order referring the whole cause to a master would have been Irregular when made, under the equity rules, unless by consent of the parties, such consent must be presumed by the appellate court, in the ab sence of anything on the subject in the record.

-Haight & Freese Co. v. Weiss, 156 Fed. 328........84 C. C. A. 224

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$ 7. Discretion of lower court.

The refusal of a court to postpone a trial because of the absence of one of a party's counsel is discretionary, and not reviewable on a writ of error. -Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 Fed. 80...

84 C. O. A. 584 $ 8. Questions of fact, verdicts, and findings.

On a writ of error to a federal court in an action at law, where the evidence was conflicting, the verdict is conclusive in the appellate court on every question of fact embraced within the issues submitted to the jury.

-Gilmore v. McBride, 156 Fed. 464..... .....84 C. C. A. 274 That a verdict is against the weight of the evidence cannot be assigued as error in the federal courts. -Sun Pub. Co. v. Lake Erie Asphalt Block Co., 157 Fed. 80.

84 C. C. A. 584 That a judgment is excessive cannot be assigned for error in the Circuit Court of Appeals.

-Nelson v. Bank of Fergus County, 157 Fed. 161.....84 C. C. A, 609

$ 9. Harmless error.

Error in permitting a witness to state a conclusion is without prejudice where he had previously stated the facts on which it was based. -Columbia Box & Lumber Co. v. Drown, 156 Fed. 459....

84 C. O. A. 269 Errors in permitting a witness to testify to values without his competency having been shown, and in stating facts from hearsay, were harmless and not ground for reversal of the judgment, where the competency of the witness was shown on his cross-examination, and the facts to which he testified upon hearsay were corroborated by the testimony of the adverse party. -Gilmore v. McBride, 156 Fed. 464...

...84 0. C. A. 274

§ 10. Determination and disposition of cause-Reversal.

Where a Circuit Court was without jurisdiction of a cause because of the absence from the complaint of necessary jurisdictional allegations, the appellate court, in reversing the judgment therein for that reason, may properly remand the cause and direct that plaintiff be permitted to amend the complaint in that respect, especially where the question of jurisdiction was not raised in the trial court.

-Puget Sound Nav. Co. v. Lavendar, 156 Fed. 361....84 C. C. A. 259 APPEARANCE.

Authority of attorney to appear for client, see "Attorney and Client,” s 1.


Liability of employer for defects, see "Master and Servant,” 8 3.


of merchandise subject to duty, see "Customs Duties," $ 2.


On stockholder of insolvent corporation, see "Corporations,” 8 2.


See "Appeal and Error," 8 3; “Criminal Law," 8 12.


See “Bankruptcy,” $8 24:


Or risk by employé, see "Master and Servant," 8$ 3, 5.


Attachment for contempt in violating injunction, see “Injunction," $ 2.


Attorney's fees as costs in bankruptcy proceedings, see "Bankruptcy," $ 8.
Privileged communications, see "Witnesses," $ 2.
Review of ruling of trial court refusing to postpone trial because of absence

of counsel, see "Appeal and Error," $ 7.

§ 1. Retainer and authority.

The entry of appearance for a defendant by an attorney is presumed to have been authorized, and, to relieve himself from the effect of such appearance, such defendant has the burden of proving to the satisfaction of the court that it was unauthorized. -Aaron v. United States, 155 Fed. 833.

.....84 O. O. A. 67 § 2. Compensation and lien of attorney.

In determining the reasonable value of services rendered by an attorney, it is proper to consider the value of the property in litigation, and where such property consisted of an interest in a mining claim which was recovered by the attorney for his client, in a subsequerit action by him to recover for his services, evidence is admissible to show the market value of such interest, not only when recovered, but also up to the time of trial, if still owned by defendant, as well as the amount he has actually received as his share of the proceeds of the working of the claim.

-Gilmore y. McBride, 156 Fed. 464.... .....84 C. C. A. 274 In an action by an attorney to recover a reasonable fee for services rendered in conducting an action, the fact that plaintiff filed a notice claiming a lien in such action is not a conclusive admission on his part that the value of his services did not exceed the sum claimed in such notice, but the question of the weight to be given to such notice as an admission is one for the exclusive determination of the jury under all the evidence in the case. -Gilmore v. McBride, 156 Fed. 464...

.84 C. C. A. 274


Of attorney, see "Attorney and Client,” 1.

AVERAGE. General average, see "Shipping,” g 2.

See "Banks and Banking," § 1; “Depositaries."

Courts are indisposed to extend, by inference, the perils of an unprofitable trust; and so it is that every bailee without reward is regarded as having assumed the least responsibility consistent with his actual undertaking. -Christian v. First Nat. Bank of Deadwood, S. D., 155 Fed. 705..

84 C. C. A. 53 BANKRUPTCY.

§ 1. Petition, adjudication, warrant, and custody of property-Invol

untary proceedings. The only issues triable in a contested bankruptcy proceeding are those of insolvency and whether the alleged act of bankruptcy has been committed, and the court is not required to deny a motion by the petitioning creditors for a dismissal of the proceeding, if satisfied that it is made in good faith, because of other issues sought to be raised by the answer and which it has no power to try.

-Bernard v. Abel, 156 Fed. 649; In re Bernard, Id...84 C. C. A. 361 An issue as to the insolvency of an alleged bankrupt involves as elements the questions of the amount of his indebtedness and the fair valuation of his property, both of which he is entitled to have determined by a jury; and the court cannot make a preliminary finding as to the validity and amount of the claims of certain creditors which will be conclusive on the jury upon the trial of such issue.

-Schloss v. A. Strellow & Co., 156 Fed. 662.........84 0. C. A. 374 An adjudication of bankruptcy on a petition charging different acts of bankruptcy, and which does not show upon which one it proceeded, does not render either charge res judicata in the further proceedings. -In re Letson, 157 Fed. 78.....

....84 C. C. A. 582 § 2. Assignment, administration, and distribution of bankrupt's es

tate-Preferences and transfers by bankrupt, and attachments

and other liens. To render a preferential payment received by a creditor from his debtor within four months prior to the latter's bankruptcy voidable under Bankr.

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