In action on a contract, the fact that defend- See "Executors and Administrators." ants have been garnished as to the money sued for is immaterial. (Mass.) 749.
At railroad crossing, see "Railroad Companies." Insurance against, see "Insurance."
ACCORD AND SATISFACTION. See, also, "Payment."
A payment to a connection of deceased in full satisfaction of any claim on account of his death does not bar an action by such connection after taking out administration, he having previously no authority to bind the next of kin. (N. Y.) 878.
Where a bank buys certain coupons from plaintiff, and, on being unable to collect them, charges them up to plaintiff's account, and re- mits check for balance with the coupons, plain- tiff can sue for the larger amount without re- turning the check or coupons. (Mass.) 469.
By executors and administrators, see "Execu- tors and Administrators."
By receiver, see "Receivers."
ACCOUNT STATED.
Where in action for an accounting it appears that a balance had been struck and an amount
Rights of inheritance, see "Descent and Distri- bution."
Under Act Pa. May 4, 1855, the court can decree an adoption by a petitioner who lives in another state. (Ill.) 628.
Under a statute allowing adoptions with the consent of the guardian, the fact that the guard- ian who consents is the person who adopts does not render the decree subject to collateral at- tack. (Ill.) 628.
Where the statute does not require the child to be notified, the fact that it was out of the state when the decree was rendered does not oust the court of jurisdiction, when the child's domicile was in the state, and notice was served on its guardian. (Ill.) 628.
ADULTERATION.
Master is criminally liable for sale by agent of milk not of standard quality. (Mass.) 308. Delivery of milk as part of breakfast at res- taurant is sale, within St. 1886, c. 318, making a sale of adulterated milk criminal. (Mass.) 308.
was found due from one defendant to plaintiff, As ground for divorce, see "Divorce." the action was properly dismissed as to all de- fendants. (N. Y.) 819.
See, also, "Abatement and Revival;" "Assump- sit:" "Ejectment;" "Limitation of Actions;" "Pleading;" "Practice in Civil Cases;" "Qui- eting Title:" "Replevin;" "Trespass;" "Tri- al;" "Trover and Conversion." Against county, see "Counties." By president of association, see "Associations." In forma pauperis, see "Costs." Particular actions, see "Creditors' Bill;" "Death by Wrongful Act;" "Deceit;" "Divorce;" "False Imprisonment;" "Injunction;" "Libel and Slander;" "Malicious Prosecution;" "Man- damus;" "Partition;" "Specific Performance." The ward may join with an action on a guardian's bond an action to set aside an ap- proval of his account rendered on his resigna- tion. (Ind. Sup.) 28.
Adjoining Landowners.
See "Boundaries."
36 N.E.-71
ADVERSE POSSESSION.
An abutting owner on a public alley cannot acquire title by occupying part of it with a fence for 20 years. (Ind. Sup.) 709.
Keeping a wagon when not in use on a city lot, to which owner of wagon has no claim, does not keep lot from being "vacant and un- occupied." (Îll.) 202.
sold for taxes is not adverse to the owner. Possession under a comptroller's lease of land (N. Y.) 513.
The fact that taxes on land in possession of a married woman were paid by her husband and is insufficient to establish title through pos his father, without her knowledge, or for her, session and payment of taxes. (Ill.) 974.
For attachment, see "Attachment." The initials " J. P." in the jurat of an officer sufficiently indicate his office. (Ind. Sup.) 419.
See "Principal and Agent."
Aider by Verdict.
An appeal to the court of appeals will not lie from an order of the general term affirming an order confirming a second report of commission- ers in condemnation proceedings. (N. Y.) 600. Decree denying partition of part of land, and appointing commissioners to partition residue, is appealable. (Ill.) 110.
Under Pub. St. c. 153, § 8, the supreme ju- dicial court cannot consider exceptions to a rul- ing of a justice of the superior court to a plea in abatement. (Mass.) 750.
Where an insane person has been brought in- to court on habeas corpus, and a guardian ap- pointed, the petitioner, a mere stranger, cannot appeal from the judgment of the court. (Mass.)
On appeal from a judgment finding plaintiff's damages to be $1,000, that is the amount in- volved, though the complaint demands $5,000. (Ind. App.) 371.
Where a reply seeks to avoid the suit of lim- itations as to a part only of the amount in suit, such part establishes the jurisdiction on appeal. (Ind. Sup.) 1090.
There may be a deposit in lieu of a recog- nizance or bond in a civil appeal from a judg- ment of a municipal court. (Mass.) 64.
An application to assign cross errors, showing only six days' notice, and no excuse for delay in the application, will be overruled. (Ind. App.) 926.
Exceptions in lower court.
A ruling of the trial court on demurrer will not be reviewed if no exceptions are saved. (Ind. App.) 926.
Objection that a judgment was not in the alternative cannot be considered, where there is no exception presenting the point. (N. Y.) 405.
Conclusions of law on special findings can- not be reviewed in absence of exceptions there- to, and an assignment that the court erred in its conclusions of law. (Ind. Sup.) 695.
Where there are no exceptions that the dam- ages awarded were excessive, such question cannot be reviewed. (N. Y.) 6.
Where a party appeals from order refusing a new trial, without taking any exceptions thereto, and assigning no other error, no question is before the court on the appeal. (Ind. Sup.) 896.
An exception to the entry of judgment is not sufficient to sustain an assignment of error on the decision overruling a motion for a new trial, under Rev. St. 1893, c. 110, § 62. (Ill.) 963.
The giving or refusing to give instructions can- not be assigned as error, but must be assigned as cause for new trial. (Ind. App.) 378. Exception to judgment does not question si- multaneous refusal of new trial. (Ill.) 106.
Refusal of a new trial for wrongful admis sion of evidence cannot be reviewed if the mo- tion did not point out the evidence so admit- ted. (Ind. Sup.) 529.
An amendment changing parties to the action cannot be made on appeal. (Ind. App.) 650.
Under Sup. Ct. Rule 6, an appeal wherein the transcript shows parties not named in the as- signment, who had joined in the trial, is defec- tive. (Ind. Sup.) 846.
A pleading which is sufficient in a justice court is sufficient in the circuit court on appeal. (Ind. App.) 774.
A cause dismissed for failure to file briefs
will not be reinstated, no excuse being shown. (Ind. App.) 293.
A supersedeas brief, with proper references to the transcript, with propositions concisely stat ed, and a clear statement of the facts, is suth- cient to prevent dismissal. (Ind. App.) 370.
On rehearing, an objection not raised on the original hearing will not be considered. App.) 646.
Questions not presented and discussed on the original hearing will not be considered on peti- tion for rehearing. (Ind. Sup.) 1101.
On error to a judgment quashing a writ of certiorari sued out to review the establishment release of errors by the landowner who did not of a highway by commissioners, a pleading of join in the writ of error is bad. (Ill.) 1004.
Assignments of error.
Assignment that general term erred in re- versing and directing new trial presents for review matters properly assigned as errors in the motion for a new trial at special term. (Ind. Sup.) 361.
Conclusions of law will not be reviewed if not assigned as error. (Ind. Sup.) 287.
A joint assignment of error to several in- structions cannot be sustained where any one of them is good. (Ind. App.) 659.
An assignment of errors by all the original petitioners after one has withdrawn is bad, since a joint assignment must show error as to all appellants. (Ind. Sup.) 899.
Joint assignment of error by two defendants to rulings on separate demurrer of one_presents no question for review. (Ind. App.) 159.
Joint assignment of error by both defendants as to instructions must be good as to both. (Ind. App.) 159.
Where a cause has been reversed and remand-
ed, a party on second appeal cannot assign as error any matter existing before the reversal. (II.) 1031.
In bill of exceptions, only the substance of the evidence need be given, and questions need not be set out. (Ind. App.) 452.
Construction of affidavit as to placing of dep- ositions inside of bill of exceptions. (Ind. Sup.) 353.
If depositions may be incorporated in bill of exceptions without direction to "here insert," they must be fastened to the bill. (Ind. Sup.) 353.
The reporter's longhand manuscript of evi- dence will not serve as bill of exceptions when it is not put in form of a bill. and there is no certificate by the clerk. (Ind. Sup.) 534.
An original longhand manuscript of the evi- dence should be embraced in the bill of excep- tions, and certified by the clerk of the court. (Ind. Sup.) 642.
Refusal of a motion for a new trial for newly- discovered evidence is not reviewable when the affidavits presenting such evidence are not in the record by bill of exceptions. (Ind. Sup.) 529.
Where the written transcript shows no filing of bill of exceptions, and no evidence is in the record, there is nothing to review. (Ind. App.) 861.
An exception to an order overruling a motion for new trial must be preserved by bill of ex- ceptions. (Ill.) 106.
A bill of exceptions makes instructions and refusals to instruct, duly excepted to, a part of the record. (Ind. Sup.) 702.
Certificate in bill of exceptions "that this was all the evidence given said cause" shows a merely clerical error in omitting "in." (Ind. App.) 452.
A statement in bill of exceptions that cer- tain facts "appeared for defendant" construed to mean that his testimony tended to prove such facts. (Mass.) 473.
A recital by the clerk that the "instructions were in writing, and in words and figures fol- lowing," does not show that they were filed as part of the record. (Ind. App.) 49.
Assignment of error questioning the sustaining of a demurrer will not be considered if record does not show the ruling. (Ind. App.) 384.
Where, on return of the clerk to an order to show cause why he should not amend his certificate to the transcript, and include the bill of exceptions, it appears that doubts exist as to the identity of the bill, the supreme court will not require such amendment. (Ind. Sup.) 415. Sufficiency of complaint is not presented by record in absence of final judgment. (Ind. Sup.) 209.
Will be dismissed when record does not show final judgment. (Ind. Sup.) 209.
The court of appeals will follow the decisions in the same case by its second division. (N. Y.) 870.
The correctness of a decision on appeal can- not be considered on a second appeal. (Ind. App.) 382.
No motion for new trial is necessary, in order for review, where the case is tried by the court. (Ill.) 956.
On trial by the court a motion for a new trial is unnecessary to raise a question that the evi- dence does not support the verdict. (Ill.) 960.
be adhered to on appeal. (Ind. Sup.) 23. The theory acted on in the lower court must
unless the lower court abused its discretion. The grant of a new trial will not be reviewed (Ind. App.) 778.
Where the record does not show that instruc- tions refused were not covered by those given,
the refusal is not ground for reversal. (Ind. App.) 762.
Questions as to admission of evidence may be considered though the record does not contain all the evidence. (Ind. App.) 659.
An objection that the court erred in refusing to submit special interrogatories cannot be sus- tained where the record does not show when the (Ind. App.) 659. interrogatories were presented to the court.
Questions not argued in the supreme court are deemed waived. (Ind. Sup.) 529.
Error will be considered, though first urged in supplemental brief, filed after time for filing is given hearing. (Ind. Sup.) 210. briefs, if an appeal is entertained, and appellee
Where, after motion to exclude plaintiff's evi- dence, an amendment to the declaration is al- waives his motion. (Ill.) 977. lowed, and defendant introduces evidence, he
Objections not raised below.
Complaint cannot be attacked for first time on appeal, if it is sufficient to bar another ac- tion. (Ind. App.) 159.
In action to enforce lien for taxes paid to re- deem from tax sale, the fact that complaint al- leged a sale by auditor instead of treasurer can- not be raised for the first time on appeal. (Ind. Sup.) 844.
In action by child for death of her father by intoxication, defendant cannot, for the first time on appeal, raise the point that plaintiff cannot maintain the action because she was born after her father's death. (N. Y.) 12.
Admission of letter to impeach witness, with- out laying foundation, is not ground for re- versal if objection was not made below. (Ind.
Order book entries are an essential part of Sup.) 286. the record. (Ind. Sup.) 209.
An appeal dismissed because of insufficient record will not be reinstated where appellant refused to correct on the original hearing. (Ind. Sup.) 1109.
Where the record shows that interrogatories were answered by the jury, and that their an- swer was returned with the general verdict, it need not show that the court instructed the jury to answer such interrogatories. (Ind. Sup.) 32.
The statement in Deither v. Lumber Co., 35 N. E. 843, that a motion to strike an answer from a deposition could not be carried into a record by a bill of exceptions filed under leave granted at a subsequent term, is obiter dictum. (Ind. App.) 765.
On second appeal, first decision, though made by second division, will not be reviewed if ques- tion not of general interest. (N. Y.) 182.
It will be presumed that the case was tried on the correct theory where the evidence is not in the record. (Ind. Sup.) 269.
On appeal from a judgment refusing to set aside sheriff's sale, where appellant states that there was no appraisement, and appellees admit such fact, the court will not presume that the sheriff made appraisement, because his return is silent as to such matter. (Ind. Sup.) 360.
Refusal of special instruction allowed by Rev. St. § 533, will be presumed, in the absence of anything to show the contrary, to be because they were not presented in time. (Ind. App.)
If evidence is not in record, a direction of verdict will be presumed to have been correct. (Ind. Sup.) 213.
Where a deed is not set out in certificate of evidence, it will not be presumed that the gran- tor's wife relinquished her dower. (Ill.) 74.
Where the record and the bill of exceptions show the filing of motion and affidavits in sup- port thereof, the presumption is that they are the only affidavits filed. (Ind. App.) 764.
It will be presumed on appeal that an ordi- nance on which plaintiff's judgment was based was in force at the time of the accident, though the bill merely alleges its existence at the time of suit. (Ill.) 1036.
Where the proof is defective on some point capable of being supplied, but no question is raised on the trial, it will be assumed that proof was waived or the fact was conceded. (N. Y.)
Where the court fails to find on a material issue, the evidence being conflicting, the pre- sumption is that it found against the party having the burden of proof. (Ind. Sup.) 23. Review-Weight and sufficiency of evi-
Where evidence is conflicting, finding of the trial court will not be disturbed. (Ind. Sup.) 286; (Ind. App.) 659, 926.
The refusal of a motion for a new trial which calls for a consideration of evidence adduced by both parties is not reviewable in the court of appeals after affirmance by the general term. (N. Y.) 823.
The decision of the appellate court is final on questions of fact. (Ill.) 91.
pearance which, under Code Civ. Proc. § 424, is Service of notice of retainer is a general ap equivalent to personal service. (N. Y.) 884.
ment of a sewer assessment lien because city A railroad company cannot object to enforce- council proceedings and notice thereof described the railroad by its initials only, when the lat- ter made a full appearance in such proceedings. (Ind. App.) 864.
On appeal from a survey, appearance and asking the decision of the circuit court on an agreed statement of facts waives absence from the record of notice of time of survey and in- formality in the record. (Ind. Sup.) 909.
Application.
For insurance, see "Insurance."
Argument of Counsel.
Where the evidence is conflicting, the verdict will not be disturbed. (Ind. App.) 438; (N. See "Criminal Law;" "Trial." Y.) 6.
The verdict will not be disturbed where two inferences may well be drawn from the undis- puted facts. (Ind. App.) 646.
Error in refusing complainant's motion for continuance is not ground for reversal, when his bill is without equity. (Ill.) 88.
Error in overruling demurrer is not ground for reversal where no harm results. (Ind. Sup.) 709.
The sustaining of a demurrer to a paragraph of the answer which denied knowledge of the insanity of plaintiff's intestate was harmless when it was found that the intestate was sane. (Ind. App.) 766.
Where a demurrer to an answer is erroneous- ly overruled, and a cross complaint setting up the same facts is good, error in overruling the demurrer is harmless. (Ind. App.) 862.
Error in overruling a motion to make more specific is harmless, when defendant was not prejudiced thereby. (Ind. App.) 659.
Findings, if erroneous, are harmless, where no relief is based on them. (N. Y.) 405.
Where the jury specially found the facts as alleged by plaintiff, the refusal of plaintiff's instruction based on a different theory of fact advanced by him was harmless error. (Ind. App.) 766.
Where, pending a motion to dismiss for fail- ure to make marginal notes in transcript, appel- lant has, under leave, made the proper notes, the motion will be denied. (Ind. Sup.) 708.
Where defendant excepts to the judgment of a single justice, but fails to file his exceptions in full court, the single justice may affirm. (Mass.) 59.
Persons summoned as trustees are not "par- ties interested," who must be notified of mo- tion for affirmance on exceptant's failure to enter the question above. (Mass.) 59.
Where a demurrer was properly overruled if general, and is so ambiguous that it might be either general or special, the ruling will be affirmed. (Ind. App.) 921.
An arrest under a writ containing no capias is illegal. (Mass.) 796.
Where defendant after arrest is taken by re quest to his lawyer, and then to the magistrate to give bail, and makes no objection to the serv ice of the writ, he does not waive its illegality. (Mass.) 796.
An indictment which charges that defendant set fire to and burned "large parts" of a court- house shows that defendant set fire to the courthouse itself. (Ind. Sup.) 135.
ASSAULT AND BATTERY.
Evidence that defendant pointed a pistol with threats of shooting, without proof that the pistol was loaded, does not justify a conviction of assault. (Ind. App.) 763.
For drainage purposes, see “Drainage.” Of benefits, see "Municipal Corporations." Of taxes, see "Taxation.'
Assignment.
Of error, see "Appeal." Of mortgage, see "Mortgages."
ASSIGNMENT FOR BENEFIT OF CREDITORS.
See, also, "Bankruptcy."
A chattel mortgage to certain creditors, and a second chattel mortgage to others, and an as- signment of accounts to a third, do not consti- tute a general assignment. (Ill.) 986.
A preference of a creditor in excess of one- third of his assets in violation of Laws 1887, p. 503, is void only to the excess of the limit. (N. Y.) 1058.
Conveys assignor's property which is not in- cluded in the inventory attached. (Ill.) 621. Assignee is not bound to accept leasehold es- tate included in the assignment. (Ill.) 621. Evidence bearing on the question whether as- signee accepted leasehold as asset of the estate. (Ill.) 621.
Lessor of premises not accepted by assignee is entitled to present claim for damages caused by breach of the terms of the lease. (Ill.) 621. Sufficiency of petition, praying leave to re- rent premises not accepted by assignee, as pres- entation of claim for deficiency in the rent eaused by necessity of re-renting. (Ill.) 621.
The fact that a creditor asks for preference to which he is not entitled does not affect his claim. (Ill.) 621.
Where unincorporated joint-stock company has numerous members, the president may sue in behalf of himself and other stockholders. (Ohio) 735.
A judgment recovered by trustees of a lodge of Freemasons is not invalid because the clerk of the lodge had not filed a certificate with the recorder of their election, as required by Rev. St. 1894, § 5019. (Ind. Sup.) 843.
Where certain members of an. association for the purchase and sale of land, turn a purchase in at a price in advance of that actually paid they were liable to their coassociates on an ac- counting. (Ill.) 1012.
Where services have been rendered in consid- eration of property to be conveyed, and the con-
An attorney employed to foreclose a mortgage cannot bind his client by a declaration that he will not consider the mortgage as foreclosed. (N. Y.) 322.
An oral agreement by the attorneys of the parties in open court to waive a jury is binding on the parties. (Ind. App.) 653.
Though attorneys are officers of the court, their recovery for services is not limited to such amount as the state pays for like services. (Mass.) 585.
Where counsel have, with the client's con- sent, employed another, their recovery for such services is not limited to the amount they paid their employe. (Mass.) 585.
Propriety of instruction, in action for profes- sional services, that the main element in find- ing the value of such services is their result, there being other instructions on same subject. (N. Y.) 823.
tract is within the statute, plaintiff can recover See, also, "Assignment for Benefit of Cred- on a quantum meruit. (Ind. App.) 919.
Affidavits that the notice required by Code, §§ 442, 443, was served on the nonresident at- tachment defendant, are conclusive as against allegations in behalf of defendant on informa- tion and belief. (N. Y.) 883.
A personal judgment for plaintiff, with an order for sale of part of land attached, releases lien of attachment as to the other land. (Ind. Sup.) 893.
Property attached as the joint property of defendants may be sold on execution if plain- tiff obtains judgment on joint liability. (N. Y.) 7.
Where a bank pays defendant bank money on a forged order drawn on customer of plain- tiff, a defense that the payee, who has abscond- ed, had property from which the order could have been collected, is insufficient, where the plain- tiff delayed four weeks, and it does not show how long the payee remained within reach with the money. (Ind. App.) 382.
A bank cannot compel refunding of proceeds of a draft fraudulently drawn by its cashier in favor of the state for taxes received by such cashier as tax collector. (N. Y.) 316.
Where a bank sends a note to another bank for collection the latter bank is liable if it takes a worthless check on the former in payment. (Ill.) 1029.
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