INDEX. ABANDONMENT. See "Homestead." § 1. ABATEMENT. Of nuisance, see "Intoxicating Liquors," § 4. ABATEMENT AND REVIVAL. § 1. Transfer or devolution of title, right, interest, or liability. Certiorari against city pending proceedings to dissolve it will not lie, unless the town corporation was brought into court, where judgment of ouster is rendered and municipal government passes into control of such corporation.-Bowlby v. City of Dover (N. J. Sup.) 844. ABUTTING OWNERS. Rights in streets in cities, see "Municipal Corporations," § 8. ACCIDENT. the statutory acknowledgment.-Fee v. Sharkey (N. J. Ch.) 673. ACTION. Abatement, see "Abatement and Revival." Counterclaim, see "Set-Off and Counterclaim." Limitation by statute, see "Limitation of Ac- Malicious actions, see "Malicious Prosecution." Set-off, see "Set-Off and Counterclaim"; "Master and Servant," § 7. Actions by or against particular classes of parties. See "Carriers"; "Corporations," §7; "Execu- Corporate officers, see "Corporations," § 6. Particular causes or grounds of action. Cause of personal injuries, see "Negligence," See "Bills and Notes," § 4; "Bonds," § 2; § 1. ACCOMMODATION PAPER. See "Bills and Notes." ACCOUNT. See "Account, Action on." by executor or administrator, see "Executors and Administrators," §§ 7-11. by trustee, see "Trusts," § 5. 1. Proceedings and relief. Where complainant was entitled to an accounting, as against an attorney retaining money under claim of set-off, the enforcement of the decree for the accounting was suspended until the attorney had opportunity to establish his set-off at law.-McCracken v. Harned (N. J. Ch.) 959. ACCOUNT, ACTION ON. Evidence in action on account held competent. -Pawtucket Steam & Gas Pipe Co. v. Briggs (R. I.) 595. Evidence in action on book debt held competent, where plaintiff had waived insufficiency of affidavit of defense.-Pawtucket Steam & Gas Pipe Co. v. Briggs (R. I.) 595. ACKNOWLEDGMENT. "Death," § 1; "Fraud," § 2; "Insurance,' 9; "Judgment," § 8; "Libel and Slander," § 2; "Malicious Prosecution," § 2; "Negligence," § 3; "Taxation," § 6; "Waste." Breach of contract, see "Contracts," § 6; "Sales," § 5. Civil damages for sale of liquors, see "Intoxi- Discharge from employment, see "Master and Particular forms of action, see "Account, Action - of land, see "Vendor and Purchaser," § 4. Particular forms of special relief. Establishment of will, see "Wills," §§ 3-6. Of indebtedness barred by limitation, see "Lim- Setting aside will, see "Wills," §§ 3-6. § 1. Nature and necessity. It is not essential to the validity of a deed made by a married woman in pursuance of a decree of a court of equity that she should make 44 A.-70 Particular proceedings in actions. See "Costs"; "Damages"; "Dismissal and Nonsuit" "Evidence": "Execution"; "Judgment"; "Jury"; "Limitation of 'Actions" "Parties"; "Pleading"; "Reference"; "Trial." (1105) Default, see "Judgment," § 1. Particular remedies in or incident to actions. See "Attachment"; "Discovery"; "Garnishment"; "Receivers." ADMINISTRATION. Of estate assigned for benefit of creditors, see "Assignments for Benefit of Creditors," § 2. of decedent, see "Executors and Administrators." Stay of proceedings, see "Appeal and Error." Of property by receiver, see "Receivers," § 2. § 6. Proceedings in exercise of special jurisdictions. ADMIRALTY. Courts of limited jurisdiction in general, see See "Maritime Liens." Criminal prosecutions, see "Criminal Law." in justices' courts, see "Justices of the Peace," § 2. § 1. Grounds and conditions precedent. Fraudulent concealment of a subsequent injury, in an action for a former injury, held not to forbid the courts to aid in recovery in another suit for the second injury.-Post v. Hartford St. Ry. Co. (Conn.) 547. Whenever a statute gives a right, the party shall, by consequence, have an action to recover ADMISSIONS. As evidence, see "Evidence," § 5. ADULTERY. On trial of indictment for adultery in the coun ty of W., held not error to admit evidence as to acts in the county of S. tending to show dis position of the parties.-Snover v. State (N. J. Sup.) 850. ADVANCEMENTS. it, although the statute prescribed no specific See "Descent and Distribution," § 2. § 2. Nature and form. ADVERSE CLAIM. Where landlord, after termination of tenancy To real property, see "Quieting Title." at will, converts machinery of tenant, his remedy is in action for conversion.-Cassell v. Crothers (Pa.) 446. Whether an action is in case or debt is to be determined from allegations of declaration, and not from what pleader may have inadvertently called it.-Bellows v. Sowles (Vt.) 68. Action of account at common law cannot be Commencement, prosecution, and An action at law will not lie to recover for damages resulting from an order commanding a railroad company to change the grade of a street, until such damage has accrued.-Dickerman v. New York, N. H. & H. R. Co. (Conn.) 228. In an action at law, an independent cause of action maturing after commencement of the suit cannot be made basis of supplemental pleading. -Dickerman v. New York, N. H. & H. R. Co. (Conn.) 228. An objection that an action is premature may be raised by demurrer.-Dickerman v. New York, N. H. & H. R. Co. (Conn.) 228. ADJOINING LANDOWNERS. In an action for negligent excavation, causing the destruction of plaintiff's house, held, on the evidence, that the question of negligence was for the jury. Witherow v. Tannehill (Pa.) 1088. ADVERSE POSSESSION. § 1. Nature and requisites. Intermittent occupation of wild lands and clearing of portions thereof for over 20 years held not to give title by adverse possession, as against co-tenant.-Fleming v. Katahdin Pulp & Paper Co. (Me.) 378. Continuous and uninterrupted possession of premises by one church society for more than 40 years held sufficient to show title to same.-First Presbyterian Soc. of Antrim v. Bass (N. H.) 485. The making of repairs to premises occupied by a church society does not constitute an interruption of such society's possession.-First Presbyterian Soc. of Antrim v. Bass (N. H.) 485. Possession by grantee of mortgagor held to become adverse only when payments of interest on mortgage are stopped.-Colton v. Depew (N. J. Ch.) 662. As against a church which for 30 years has been in adverse possession under a quitclaim deed, a quitclaim to another from the same grantor is no defense in ejectment by the church.-Bose v. Christ (Pa.) 240. AFTER-ACQUIRED TITLE. See "Principal and Agent." AGREEMENT. The fact that plaintiff's house was 20 feet distant from the line of excavation does not relieve defendant from liability as matter of law, but is a matter properly to be considered by See "Contracts." the jury, in connection with the known nature of the ground, on the question of negligence.Witherow v. Tannehill (Pa.) 1088. ADJUDICATION. Of courts in general; see "Courts," § 2. ALIMONY. See "Husband and Wife," § 6. ALTERATION. Operation and effect of former adjudication, see Of geographical or political divisions, see "Judgment," §§ 5, 6. "Towns," § 1. AMENDMENT. See "Pleading," § 2. Of record on appeal on writ of error, see "Appeal and Error." § 7. Of statute, see "Statutes," § 4. AMOUNT IN CONTROVERSY. Jurisdictional amount, see "Appeal and Error," § 1. An appeal will not lie from an order overruling a demurrer to a complaint.-Richardson v. Richardson (Pa.) 445. Agreement of parties in ejectment as to value will not take place of certificate as to jurisdictional amount required by statute.-Matthews v. Rising (Pa.) 1067. § 2. Right of review. Persons named as legatees in a written instrument, though not presented for probate, can appeal from decree allowing another instrument as the will of deceased.-Smith v. Chaney (Me.) 897. Administrator cannot appeal from a decree auInjuries from operation of railroads, see "Rail- thorizing an action on his bond.-Sherer v. Sherer roads," § 4. (Me.) 899. ANIMALS. Under St. 1895, c. 25, a colt foaled on the 12th day of July, 1898, became six months old January 11, 1899, and the statutory lien on him expired at that time.-Gile v. Atkins (Me.) 896. In an action by town under Pub. St. c. 118, §§ 9-13, to recover from owner of dog for money paid out for injury to sheep, where some of them belonged to person paid and others were ⚫ merely pastured by him, held, owners should be made parties or file releases, if they had not authorized payment to be made to party pasturing sheep.-Town of Unity v. Pike (N. H.) 78. ANNEXATION. An administrator is not a person aggrieved on entry of an order authorizing an action on his bond.-Sherer v. Sherer (Me.) 899. Defendant cannot object to an order of court forbidding plaintiff's counsel to comment on defendant's evidence.-Drown v. Hamilton (N. H.) 79. 8 3. Presentation and reservation in lower court of grounds of review. Motion to amend findings of fact, failing to state reason therefor, as required by Pub. Acts 1897, c. 194, §§ 8-10, is insufficient.-Wales v. Graves (Conn.) 480. Allowing costs from fund of estate on bill of interpleader held not ground for reversal, in ab Of territory to municipal corporation, see "Mu- sence of an objection thereto.-Chase v. Benedict nicipal Corporations," § 1. Probate proceedings, see "Wills," § 6. Review in action of ejectment, see "Ejectment," § 2. of criminal prosecution, see "Criminal Law," 7. of proceedings of justices of the peace, see "Justices of the Peace," § 3. § 1. Decisions reviewable. A judgment for nominal damages in a second suit, in an action in which a former judgment was rendered on demurrer, held no bar to a writ of error to the former judgment.-Brennan v. Berlin Iron-Bridge Co. (Conn.) 727. Where a writ and complaint fail to show jurisdictional facts, a plea in abatement is unnecessary; and hence overruling demurrer to the plea is not available as error.-G. M. Williams Co. v. Mairs (Conn.) 729. Overruling of demurrer by consent cannot be made ground of appeal.-G. M. Williams Co. v. Mairs (Conn.) 729. Judgment of non pros. is appealable.-Henderson v. Maryland Home Fire Ins. Co. (Md.) 1020. Appeal from an order rescinding a previous order unless cause be shown to the contrary by a day named, before such day, will be dismissed. L. A. Thompson Scenic Ry. Co. v. Norvell (Md.) 1026. Liability to account held settled by consent decree.-Mintz v. Brock (Pa.) 417. No appeal will lie from an order dissolving an attachment, as it is merely interlocutory.-Slingluff v. Sisler (Pa.) 423. (Conn.) 507; Appeal of Griggs, Id. Under Pub. Acts 1897, p. 890, § 9, exceptions to findings or to refusal to make certain findings can only be taken at the time of making a motion to correct or alter the findings, and as a part of it.-Walsh v. Hayes (Conn.) 725. Ambiguous instruction, not having been objected to at the trial, held not ground for reversal on appeal.-Brown v. Reddy (N. J. Err. & App.) 935. Objection that a question of fact was not submitted to the jury held waived.-Robbins v. Farwell (Pa.) 260. Question of jurisdiction in equity cannot be raised for first time on appeal.-Williams v. Concord Congregational Church (Pa.) 272. Where no exception is taken to the form of the reservation of a point at the trial, the parties cannot object on appeal.-Rynd v. Baker (Pa.) 551. The question of jurisdiction, being raised by pleadings and by request for finding, may be raised on appeal, though formal demurrer was not filed.-North Shore R. Co. v. Pennsylvania Co. (Pa.) 1083. Questions of law will not be considered on appeal, in absence of exceptions. - Phillips v. Shackford (R. I.) 306. Introduction of evidence by defendant after overruling motion for judgment in his favor waives exceptions to ruling.-Bellows v. Sowles (Vt.) 68. Exceptions to the rendition of final judgment will not reach the objection that the judgment was too large, the judgment being based on the findings of facts, to which there was no exception.-Bellows v. Sowles (Vt.) 68. Where exceptions do not show but that conversation required denial of liability, admission of conversation in which liability was not denied will not be reviewed.-Hardwick Sav. Bank & Trust Co. v. Drenan (Vt.) 347. Question not made on demurrer below cannot be raised thereunder on appeal.-Crane v. Dar Supreme court cannot consider setting aside of attachment because there was no proof of any ling (Vt.) 359. facts sufficient to sustain it, as appeal only brings up record, and review must be confined § 4. Parties. to regularity of the proceedings.-Slingluff v. Sisler (Pa.) 423. Where appellants from probate of will have inadvertently described themselves as heirs, in stead of legatees under another will, the misdescription can be corrected. Smith v. Chaney (Me.) 897. 5. Requisites and proceedings for transfer of cause. A person 41 years old appealing from an allowance of her guardian's account is not excused from giving bond as one "under guardianship," by Rev. St. c. 63, § 24.-Curtiss v. Morrison (Me.) 892. The time an application for an appeal is pending in the superior court must be deducted from the time limited for the perfection of an appeal by Act May 19, 1897 (P. L. 67).-PlattBarber Co. v. Groves (Pa.) 571; Appeal of Crawford, Id. Where appeal bond on appeal from order of town council fails to reach clerk within period prescribed by law. appeal is incomplete.-McCotter v. Town Council of New Shoreham (R. I.) 473. § 6. Supersedeas or stay of proceedings. Where the court is of opinion that an appeal is taken simply for delay, he may authorize the issuance of execution at any time, under Pub. Acts 1897, p. 891, § 14.-Coughlin v. McElroy (Conn.) 743. § 7. Record and proceedings not in record. In equity only the portions of evidence bearing on the points on appeal should be certified to the appellate court, when it can be separated from a voluminous amount of other evidence.-New Haven Water Co. v. Borough of Wallingford (Conn.) 235. In equity it is improper to certify that portions of the evidence bearing upon the questions on appeal, separated from a mass of evidence immaterial to such questions, are only a part of that bearing upon those questions.-New Haven Water Co. v. Borough of Wallingford (Conn.) 235. Where record is in such condition that appel late court cannot with certainty say trial court committed error, grounds upon which questions and answers were objected to or excluded not being clearly stated, the trial court will be affirmed.-Appeal of Turner (Conn.) 310. Findings of fact cannot be corrected on appeal, where appellant failed to file written motion requesting such corrections, stating his reasons therefor.-Wales v. Graves (Conn.) 480. Findings of fact relating to noncompliance of historical work sold with its prospectus cannot be considered on appeal, where only evidence in record is copy of publication.-Wales v. Graves (Conn.) 480. Assignment that court could not distinguish between former injuries and those in suit held not available.-Post v. Hartford St. Ry. Co. (Conn.) 547. Motion to dismiss appeal, on ground that record was not transmitted within three months from time appeal was taken, overruled.-Brown v. Ravenscraft (Md.) 170. Matters in the return of a writ of diminution, consisting of a conversation between the judge and the parties at the conclusion of hearing, held no part of the record.-Goodhues v. Goodhues (Md.) 990. Exception to direction of verdict cannot be supported unless all of the essentials of the case are before the reviewing court.-Whitaker v. Miller (N. J. Err. & App.) 643. A petition in supreme court for new trial, being in nature of appeal, will be dismissed, where only one of two joint plaintiffs presents the petition.-Gencarelle v. New York, N. H. & H. R. Co. (R. I.) 174. § 8. Assignment of errors. Stating "that the court erred in his charge to jury as to burden of proof, and as to amount of preponderance of evidence necessary to establish will," is insufficient, under Prac. Book, p. 258, Rule 14, § 1.-Appeal of Turner (Conn.) 310. ment on evidence submitted in case is insuffiAssignment that court erred in rendering judgcient to raise any question for review.-Wales v. Graves (Conn.) 480. Under Act March 24, 1899, leave to file an assignment of error on the ground that the verdict is against the clear weight of evidence cannot be granted, where the writ of error had been allowed and returned and joined before the act took effect.-Kime v. Consolidated Traction Co. (N. J. Err. & App.) 889. Where the record does not show that a cause was one proper to be referred, or that it was in fact referred, an assignment of error, founded on an exception taken to the exclusion of the referee's report, when offered in evidence, will not be considered.-McGrath v. Hervey (N. J. Err. & App.) 962. § 9. Dismissal, withdrawal, or abandonment. A motion to dismiss appeal from award of damages for opening street, at a term after that at which the appeal was taken, is in time.Rines v. City of Portland (Me.) 925. Appeal not taken within two months from date Motion to dismiss appeal from decree of probate of will, for insufficiency in reason of appeal, being in nature of demurrer, admits all facts stated in said reason.-Lane v. Hill (N. H.) 597.. § 10. Hearing and rehearing. Rehearing on appeal ordered where, on appeal in another case, it appeared that an important matter was overlooked on the original hearing. In re Lefevre's Estate (Pa.) 272; Appeal of Leaman, Id. 11. Review-Scope and extent in gen eral. Error in finding or refusing to find certain facts from the evidence, it not being claimed the facts found were without evidence, nor that the facts which the court refused to find were undisputed, will not be reviewed.-Post v. Hartford St. Ry. Co. (Conn.) 547. Sufficiency of notice of extent of injuries received held not reviewable, no exception being taken.-Post v. Hartford St. Ry. Co. (Conn.) 547. bracing both matter of fact and law is not objecOn appeal from probate court, statement emtionable as reason of appeal.-Lane v. Hill (N. H.) 597. pleadings, which might become immaterial after Reserved questions of law arising on the the issues raised thereby have been tried, will not be considered on appeal, until the facts have been found.-Fellows v. Fellows (N. H.) 752; Howe v. Same, Id. § 12. Parties entitled to allege er ror. Filing of second amended complaint is withdrawal of first, and ruling on demurrer to first amended complaint will not be reviewed.-Boland v. O'Neil (Conn.) 15. § 13. Amendments, additional proofs, A plea to abate an appeal which was allowed, after being originally refused, because of the opinion it was simply for delay, is demurrable. -Coughlin v. McElroy (Conn.) 743. $14.- Presumptions. In real action on sheriff's deed, it will be presumed on appeal that all prior proceedings were in accordance with statutory requirements, and properly proved.-Hill v. Reynolds (Me.) 135. Where record fails to show whether plaintiff was ruled to plead further, his amended declaration being disallowed, presumption is court acted within its rules in entering judgment of non pros.-Thompson v. Young (Md.) 1037. The supreme court takes judicial notice that a person signing a bill of exceptions as circuit judge does not hold that office; but, instead of dismissing the writ of error, or affirming the judgment, the court will permit plaintiff in error to remedy such imperfection, if he desires to do so.-Emery v. King (N. J. Sup.) 971. The supreme court will grant new trial on the ground of excessive damages only in clear cases of injustice.-Schenkel v. Pittsburgh & B. Traction Co. (Pa.) 1072. § 16. Questions of fact, verdicts, and findings. Where the evidence is conflicting, or is such that the appellate court cannot say the trial court erred in refusing to find a fact, the decision will be affirmed.-New Haven Water Co. v. Borough of Wallingford (Conn.) 235. Finding of trial court on issue of fact is conclusive, unless record discloses error in law. Appeal of Cleveland (Conn.) 476. Where the trial court adopts correct principles of law in arriving at a conclusion of negligence from findings of fact as to the acts and conduct of the parties, its decision cannot be reviewed.Fox v. Kinney (Conn.) 745. Findings of trial court in passing on_report of referee are not reviewable on appeal.-Drown v. Hamilton (N. H.) 79. There being evidence to justify a refusal to set aside a verdict as contrary to the evidence, no question of law is raised by exceptions thereto. -Abbott v. Concord & M. R. R. (N. H.) 912. Whether a verdict should be set aside as against the weight of evidence is for the trial judge.-Abbott v. Concord & M. R. R. (N. H.) 912. In a trial to the court, findings of fact are not reviewable on error, except to determine whether the facts found sustain the judgment.-Person v. Herring (N. J. Err. & App.) 753. Where case is tried by the court, its finding on blended law and facts cannot be reviewed on er ror.-New Jersey Rubber Co. v. Commercial Union Assur. Co. (N. J. Sup.) 848. Where there was evidence showing defendant's negligence, and no error of law was committed at the trial, a judgment for plaintiff will not be reversed on appeal.-Klotzbach v. Paterson Ry. Co. (N. J. Sup.) 933. Verdict based on conflicting evidence will not be disturbed.-Wall v. Royal Soc. of Good Fellows (Pa.) 248; Bollinger v. Cowan (Pa.) 453. Findings of master fully sustained by evidence will prevail, though reversed by court below without any reasons being assigned therefor.-Williams V. Concord Congregational Church (Pa.) 272. Where court, under power given by Act May 4, 1889, to amend or reverse report of referee, has made findings corresponding to verdict of jury, differing fom those of referee, all based on same testimony, which was conflicting, only clear conviction of error will justify disturbance of court's findings.-Merchants' & Manufacturers' Nat. Bank v. Kern (Pa.) 334. There is no remedy by appeal for verdict against_weight of evidence.-Sprout, Waldron & Co. v. Eagal (Pa.) 453. § 17. Harmless error. Proper denial of an application for distribution of an estate on erroneous ground held not ground for reversal.-Chase v. Benedict (Conn.) 507; Appeal of Griggs, Id. Exclusion of question to plaintiff, on cross-examination, as to whether a physician, a witness, had not, on the day of plaintiff's injury, advised him to sue, held harmless error.-Baltimore City Pass. Ry. Co. v. Baer (Md.) 992. dence held harmless error.-Howland v. Currier In action on guaranty, exclusion of certain evi(N. H.) 106. Where in slander the jury finds for defendant, error in admission of evidence in mitigation becomes immaterial.-Woodbury v. Whiting (N. H.) 385. Verdict will not be set aside where a witness inadvertently answered a question which he was told not to answer on objection, the answer not affecting the result.-Wason v. Burnham (N. H.) 693. Admission of harmless evidence is no ground for reversal.-Whitaker v. Miller (N. J. Err. & App.) 643. Error in admitting evidence held not prejudicial, in view of instructions given.-Flanigan v. Guggenheim Smelting Co. (N. J. Err. & App.) 762. The supreme court, in reviewing judgments of the common pleas rendered on appeals from district court, can only determine errors of law.Duebel v. Vanderbilt (N. J. Sup.) 842. Admission of incompetent evidence held no ground for reversal, the other evidence sustaining the findings of the court.-Robbins v. Farwell (Pa.) 260. The rejection of evidence offered by plaintiff is not reversible error, where other witnesses subsequently testify to the matter rejected and are not contradicted by defendant.-Owens v. City of Lancaster (Pa.) 559. Error in allowing witness to testify from a copy of a list of articles is harmless, where the witness testified from memory, independently of the list, to practically all the articles claimed.Ryer v. Hyde (R. I.) 719. In action of debt on judgment, error in adplaintiff and another to share equally avails of mitting evidence respecting agreement between their respective suits against defendant held harmless.-Bellows v. Sowles (Vt.) 68. site counsel to the jury on matters not in eviA party was not harmed by remarks of oppodence, as to an issue which was found for him. Lamoille County Nat. Bank v. Hunt (Vt.) 347. § 18. Determination and disposition of cause. opinion specifies the relief to be granted by the Where the appellate court reverses, and in its lower court, it is too late for the defeated party to show errors not set up at the trial.-Coughlin v. McElroy (Conn.) 743. Judgment of appellate court, reversing judgment of lower court, and specifying action to be taken by lower court, held not to require retrial of issues, or to permit new trial to take up errors not set up at former trial.-Coughlin v. McElroy (Conn.) 743. |