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INDEX.

ABATEMENT AND REVIVAL.

Administration.

Admissions.

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.

Accident.

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.

Accounting.

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

See "Criminal Law."

ADOPTION.

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.

Adultery.

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.

Acquiescence.

See "Estoppel."

ACTION.

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.

See "Statutes."

Acts.

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.

AFFIDAVIT.

For attachment, see "Attachment."
The initials " J. P." in the jurat of an officer
sufficiently indicate his office. (Ind. Sup.) 419.

Agency.

See "Principal and Agent."

Aider by Verdict.

See "Pleading."

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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.)

685.

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.

Requisites.

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.

Practice.

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.

(Ind.

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.

Record.

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.

Review.

On second appeal, first decision, though made
by second division, will not be reviewed if ques-
tion not of general interest. (N. Y.) 182.

Presumptions.

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.)

216.

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.)

1064.

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-

dence.

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.

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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.

Harmless error.

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.

Decision.

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.

ARREST.

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.

ARSON.

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.

Assessment.

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.

ASSOCIATIONS.

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.

ASSUMPSIT.

Where services have been rendered in consid-
eration of property to be conveyed, and the con-

ATTORNEY AND CLIENT.

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.

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tract is within the statute, plaintiff can recover See, also, "Assignment for Benefit of Cred-
on a quantum meruit. (Ind. App.) 919.

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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.

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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.

See "Wills."

Bequest.

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