See "Abatement and Revival"; "Limitation of Actions": "Parties"; "Pleading"; "Practice in Civil Cases."
By convict, see "Convicts." On contract, see "Contracts."
On insurance policies, see "Insurance."
In Maryland, a cause of action on contract and one for deceit in procuring its execution can- not be joined.-Weaver v. Shriver (Md.) 189.
sealing of a summons without any purpose of A suit is not commenced by the signing and immediate service.-Lynch v. New York, L. E. & W. R. Co. (N. J. Sup.) 187.
ACTION ON THE CASE.
gal levy and sale of bank stock is insufficient if A complaint against a tax collector for an ille- for collection regular and valid on its face.- it does not charge that defendant had a warrant Sprague v. Fletcher (Vt.) 693.
Adequate Remedy at Law. See "Equity."
ADJOINING LANDOWNERS. See, also, "Boundaries"; "Fences"; "Party Walls."
Each of the adjoining owners of real property is entitled to the lateral support of the latter's land. Stimmel v. Brown (Del. Super.) 996.
On the withdrawal of lateral support to land, the owner injured thereby may recover the amount required to restore his property to its former condition with as good means of lateral support.-Stimmel v. Brown (Del. Super.) 996.
Administration.
See "Executors and Administrators."
Effect of adoption of a child in another state as to his right of succession to land in Rhode Island.-Melvin v. Martin (R. I.) 467.
Particular actions, see "Action on the Case"; "As- sault and Battery": "Assumpsit"; "Attach- Proof of, see "Divorce." ment"; "Creditors' Bill"; "Death by Wrong- ful Act": "Deceit"; "Divorce"; "Ejectment"; "Injunction": "Libel and Slander"; "Mali- cious Prosecution"; "Mandamus"; "Mechanics' See "Descent and Distribution." Liens"; "Partition"; "Prohibition, Writ of"; "Quo Warranto"; "Replevin"; "Specific Per- formance"; "Trespass"; "Trover and Con- version."
By and against executors and administrators, see "Executors and Administrators."
ADVERSE POSSESSION.
The deposit of materials and erection of a shed on the land of another, followed by their (1137)
abandonment for years, is not necessarily incon- | of the right of appeal.-Elliott v. Montell (Del. sistent with the owner's contended possession. Err. & App.) 854. -Dubuque v. Coman (Conn.) 777.
An appeal will not lie from an order in a habeas corpus proceeding.-City of Annapolis v. Howard (Md.) 910.
There is no right of appeal from an order removing a road supervisor or public officer from his office.-Miles v. Stevenson (Md.) 646.
The jurisdiction of the circuit court, to de- cide in regard to the validity of the location of a natural bed of oysters, being special, no ap- peal lies.-Jackson v. Bennett (Md.) 612.
An appeal lies from the first district court
Of claims against decedent's estate, see "Ex- of the city of Newark from a judgment in ex- ecutors and Administrators."
insolvent estate, see "Insolvency."
To widow, see "Executors and Administrators."
ALTERATION OF INSTRU- MENTS.
The erasure by the owner of a deed of the initial letter from the name of the grantee ren- ders it void.-Jones v. Crowley (N. J. Sup.) 871. The legal effect of an alteration of a deed is for the court.-Jones v. Crowley (N. J. Sup.) 871.
Question whether an alteration in a treas- urer's deed of land sold for taxes was such as required explanation before admission of the deed.-Lee v. Newland (Pa.) 258.
See, also, "Certiorari"; "Error. Writ of"; "New Trial."
From granting a liquor license, see "Intoxicat- ing Liquors.'
In criminal cases, see "Criminal Law."
Appellate jurisdiction.
An appeal from an original order erasing a cause from the docket of the superior court is not invalidated by a subsequent void attempt to have such action reviewed. - Appeal of Beard (Conn.) 775.
Jurisdiction of the supreme court of errors to review the action of a superior court in an appeal from a decision of the county commis- sioners granting a liquor license.-Appeal of Beard (Conn.) 775.
An order in a habeas corpus proceeding that the writ stand over subject to further action is not appealable.-Commonwealth v. Blatt (Pa.) 674.
An appeal does not lie to review a judgment rendered on a case stated and referred to the court, without a reservation in the case stated
cess of $200.-McGowan v. Metropolitan Life Ins. Co. (N. J. Sup.) 433.
An order refusing to set aside a levari facias is appealable.-Packer v. Owens (Pa.) 314.
An order setting aside a former order dis- missing an appeal from an alderman is not ap- pealable. Samuel Cupples Wooden-Ware Co. v. Howe (Pa.) 238.
Validity of order extending time for filing no- tice of an appeal, which was made after the statutory period, but on the same day that a motion for a rehearing was heard.-Appeal of Beard (Conn.) 775.
An appeal bond on appeal from a district court to the court of common pleas cannot be filed at a term more than five days after judg ment.-Delaney v. Burckle (N. J. Sup.) 809. Practice.
Where a judgment has been rendered by an inferior court of competent jurisdiction, noth- ing will be presumed against the judgment that is not part of the record.-Lloyd v. Richman (N. J. Sup.) 432.
A return of a justice that a certain motion was not made before him cannot be contradict- ed by affidavits.-Meirs v. Bussom (N. J. Sup.)
On appeal from the common pleas it is error to give judgment "that the judgment of the for the defendant.-Mulcahy v. New Jersey court would be affirmed," instead of judgment Traction Co. (N. J. Sup.) 472.
Neither the testimony, nor the opinion of the court, are part of the record in proceedings for a tavern license in the court of quarter ses- sions. In re Branch (Pa.) 296; Appeal of Beck, Id.
An executor who has appealed from an al- lowance of a claim against the estate by a com- missioner in insolvency may dismiss the appeal before trial.-Simpson v. Gafney (N. H.) 1120.
The unexplained failure of the court to make any note on plaintiff's request that the court find certain facts, which the court in its opin- ion states have been proven, is equivalent to a formal note that such facts were proven.- Styles v. Tyler (Conn.) 165. Assignment of errors.
A specification which charges error in instruc- tions, but does not quote either the points stat- ed or the court's answer, will not be considered. --Crawford v. McKinney (Pa.) 1045.
An assignment which charges error "in refus- ing defendant's second and third points" is a waiver of both errors.-Crawford v. McKinney (Pa.) 1045.
does not render such refusal harmless.-Cale- | appeal prevail over the statements of counsel donian Ins. Co. of Scotland v. Traub (Md.) 904. as to his admissions.-Maryland Ice Co. v. Arc- Presumption in favor of the finding of the tic Ice-Machine Manuf'g Co. (Md.) 633. trial court upon conflicting evidence.-Dubuque v. Coman (Conn.) 777.
Acts 1893, p. 318, does not require the court of errors to determine upon evidence spread on the record questions of pure fact settled by the trial court.-Styles v. Tyler (Conn.) 165. The supreme court of errors has no jurisdic- tion for the determination of pure questions of fact.-Styles v. Tyler (Conn.) 165.
Where the trial court errs in treating as a question of fact conclusions which should be treated as a question of law, the court of errors has jurisdiction to determine the true conclu- sion of law. Styles v. Tyler (Conn.) 165.
Where the distribution of a fund in an ex- ecutor's hands is based on questions of fact, the decree will not be disturbed.-In re Patter- son's Estate (Pa.) 1020; Appeal of Risher, Id. Refusal to order a compulsory nonsuit is not assignable as error.-Crawford v. McKinney (Pa.) 1045.
Where the verdict is against the evidence, the remedy is exclusively in the trial court.-Shon- inger v. Latimer (Pa.) 985.
Under Pub. Acts 1893, p. 318, § 6, the court of errors will not consider exceptions to the findings of the court, or to its refusal to find other than as to matters relating to the admis- sibility of evidence. Meriden Sav. Bank v. Wellington (Conn.) 774
The refusal of the court to grant a nonsuit when plaintiff has rested his case furnishes no ground for exceptions to defendant.-Dubuque v. Coman (Conn.) 777.
The admission by the court, after defendant has rested, of evidence in rebuttal and in chief, affords him no ground of error.-Dubuque v. Coman (Conn.) 777.
Presumption on appeal that an amendment of the declaration allowed in the county court on an appeal from the disallowance of a claim against a decedent's estate, was allowed pur- suant to R. L. § 2271, on account of fraud, ac- cident, or mistake. Cutting v. Ellis' Estate (Vt.) 688.
Harmless error in charging as to the meas ure of damages on defendant's counterclaim, when there was not sufficient evidence to es- tablish the allegations of such claim.-Gulliver v. Fowler (Conn.) 852.
Where defendant failed to establish any of the allegations of her counterclaim, error in re- stricting her proof of damages was harmless. Gulliver v. Fowler (Conn.) 852.
The court will not review errors depending on the evidence or the pleadings where neither the testimony nor the pleadings are in the record. Walter v. Sun Fire Office (Pa.) 945.
A ruling of the trial court on the sufficiency and weight of evidence is not reviewable on a bill of exceptions.-Crafts v. Sweeney (R. I.) 658.
The admission of the answer to a certain question is not ground for review on appeal unless the answer is set out in the record.-De- voe v. Singleton (Md.) 614.
The admissibility of testimony of a witness on cross-examination cannot be determined on ap- peal, where the record does not set out the tes- timony in chief.-Devoe v. Singleton (Md.) 614. An instruction depriving plaintiff of the bene- fits of certain evidence is no ground for reversal where the record does not show any such evi- dence.-Rose v. Busher (Md.) 637.
An official declaration by a trial judge as to the admission of counsel on the trial must on
The admission of improper evidence is not reversible error when appellant was not in- jured.-McLaughlin v. Mencke (Md.) 603.
Error in refusing to hear oral testimony can- not be considered where the record shows no refusal.-Delaware County & P. Electric Ry. Co. v. City of Philadelphia (Pa.) 396.
Refusal to set aside a verdict because against the weight of evidence will not be reviewed.- Gibson v. Western New York & P. R. Co. (Pa.) 308.
An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be disturbed where the question is doubtful.— Paine v. Kindred (Pa.) 273.
On appeal in proceedings to vacate a street, the court cannot determine the qualifications of petitioners in the absence of an exception in Appeal of Morris, Id. the trial court.-In re Swanson St. (Pa.) 207;
No exceptions lie to the findings of fact of a
presiding judge of the supreme judicial court.- In re Mooers (Me.) 109.
A finding of a master on conflicting evidence, be reversed on appeal.--Citizens' Pass. Ry. Co. if amply supported by the testimony, will not v. East Harrisburg Pass. Ry. Co. (Pa.) 159. Decision.
Where a verdict is taken subject to legal points reserved, and such points are not in the record, the judgment will be reversed.-Moore v. Copeley (Pa.) 829.
A case will not be reversed merely for an ob- jection which might have been avoided by an amendment of the pleadings.-Excelsior Electric Co. v. Sweet (N. J. Sup.) 553.
Reversal without new trial.-Tozer v. Jack- son (Pa.) 400.
Of executors and administrators, see "Executors and Administrators."
ARBITRATION AND AWARD.
An award is conclusive upon the parties, in the absence of fraud, though, by mistake, evi- dence of a payment to one of the parties was omitted.-English v. School Dist. of Borough of Wilmerding (Pa.) 506.
the books of a justice of the peace, will be treat- A reference and award, though entered on
ed as a common-law submission and award when the requisites of a statutory submission are wanting. - Climenson v. Climenson (Pa.) 148.
By implication, Gen. St. § 1203, providing for the return to and acceptance by the court of an award of arbitrators, confers upon it also the power to refuse to accept it. In re Curtis (Conn.) 769.
The impeachment of an award of arbitrators for any cause should be made by remonstrance to its acceptance by the court to which it is returned. In re Curtis (Conn.) 769.
In the absence of such a requirement in the articles of submission, under which an award of arbitrators is made, there need be no finding by them of the facts on which it is based.-In re Curtis (Conn.) 769.
ASSAULT AND BATTERY.
In an action for assault and battery in eject- ing plaintiff from leased premises, it is sufficient
for her to show that she was in charge of the premises by the lessee's authority. - Allen v. Keilly (R. I.). 965.
Where defendant, in removing the division fence which is in dispute, injures plaintiff, who was leaning thereon to prevent its removal, is liable for damage.-Kendall v. Drake (N. H.) 524.
Assessment.
For taxation, see "Taxation."
See, also, "Assignment for Benefit of Credit-
Of patent, see "Patents for Inventions."
The assignment of an expectant interest in the estate of one not dead may be upheld in equity. In re Kuhns' Estate (Pa.) 215.
An order given by creditors of defendant, after they were paid out of certain collections, to pay the balance of such collections to one of plaintiffs, is not an equitable assignment of such balance.-Crafts v. Sweeney (R. I.) 65S. Where a lease of a mill containing a patent- ed machine was made, an assignment of a right to use a machine made at the time is supported by the consideration paid for the lease.-Gould v. Conant (Vt.) 39.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
See, also, "Attachment"; "Insolvency." Enforcement of, see "Equity."
Constructive assignment.
An assignment by insolvents to one to whom they were not indebted to prefer certain credit- ors, in whose benefit they had a few hours be- fore confessed judgment, and within one hour before the execution of a general assignment, constitutes a general assignment, within Act April 17, 1843, and inures to the benefit of all the creditors of the assignment.-In re Dickson (Pa.) 1032; Appeal of Bell, Id.
Requisites and validity.
Effect of Act March 18, 1875, declaring cer- tain requisites to a valid assignment for cred- itors.-Elliott v. Montell (Del. Err. & App.) 854. A voluntary assignment for the benefit of creditors, to which none of the creditors have assented, is invalid as against execution cred- itors.-Elliott v. Montell (Del. Err. & App.) 854. The assignee.
Where a conveyance by the assignor to the assignee is alleged to be fraudulent by a ma- jority in interest of the creditors, the assignee will be removed.-Brown v. Armstrong (R. I.) 461.
Where an assignee in his first account takes credit for commission and counsel fees to an amount in excess of cash on hand. he cannot have credit for such excess on a second account. -In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
A trustee is entitled to credit for payments made under order of court.-In re Weed's Es- tate (Pa.) 272; Appeal of McGinnis, Id.
The court cannot appoint a master to pass on the facts in regard to alleged mismanagement of the assets by the assignee.-In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
The assignee is not entitled to compensation for services which are performed by lawyers and agents who are allowed compensation.-In re Powel's Estate (Pa.) 373; Appeal of Bris- bin, Id.
Right of one assignee to correct an excessive credit in his first account by charging himself with the appraised value of the unconverted assets, less the amount of such excessive credit. In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
Petitioners for the removal of an assignee for mismanagement should not be charged with costs. In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
An auditor, to settle an account of an as- signee, has only to pass on the issues raised by the litigants, and need not suggest new subjects of contention.-In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
An assignee's account should not enter on the debit side as monthly receipts sums which are the proceeds of sales of assets at prices below the appraised value.-In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
An assignee is not guilty of mismanagement in disposing of the assets at their real value, though at less than the appraised value.-In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
Action on petition for the removal of an as- signee should be suspended, pending hearing on exceptions to a report on his account raising the questions of his negligence, he not being insolvent.-In re Powel's Estate (Pa.) 373: Appeal of Brisbin, Id.
Mere possession of leased premises by an as- signee for a short time is insufficient to show the acceptance of the lease.-In re Weinmann's Estate (Pa.) 389; Appeal of Lea, Id.
Where the dividend paid in addition to the amount recovered by a creditor from collaterals is not sufficient to pay the claim in full. the amount of the collaterals should not be deduct-
ed before proving the claim.-Greene v. Jack- son Bank (R. I.) 963.
Where a creditor holds collateral, his claim will be allowed for the difference between the amount thereof and the value of the collateral. -National Union Bank v. National Mechanics' Bank (Md.) 913.
A bill against an assignee for the benefit of creditors, by a creditor of the assignor, to en- force the trusts under the assignment, which does not allege that complainant presented his claim within the six months allowed, is defect- ive.-Peabody v. Tenney (R. I.) 456.
A creditor who proves his claim cannot with- draw it unless he can show that his conduct was induced by the fraud of the debtor.-Me- Cormick v. Willets (N. J. Sup.) 188.
Counsel fees for services in setting aside con- veyances by a trustee of an insolvent estate are payable out of the common fund.-In re Weed's Estate (Pa.) 272; Appeal of McGinnis, Id.
The authority of a trustee to join in an agreement between creditors and an assignee cannot be questioned by the other creditors, in order to attack a transfer made in pursuance of such agreement.--In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
Right of a firm to question the validity of the transfer of an assigned estate to a corporation at a meeting of the creditors, it having made no objection to the auditor's report before the con- firmation thereof.-In re Powel's Estate (Pa.) 373; Appeal of Brisbin, Id.
Rent accruing after the assignment is not a debt entitled to share in the assets. In re Weinmann's Estate (Pa.) 389; Appeal of Lea,
ASSOCIATIONS.
See, also, "Corporations": "Building and Loan Associations"; "Religious Societies."
Effect of decree in quo warranto proceeding dissolving a benefit association which was ac- cepted by the supreme lodge as final. Com monwealth v. Order of Solon (Pa.) 930. Where all the capital of a joint-stock associa- tion is invested in a pipe line necessary in its business, a sale thereof in exchange for shares in another corporation is ultra vires.-Carter v. Producers' & Refiners' Oil Co. (Pa.) 391.
A fund raised by tonnage tax lawfully levied on members of an oyster association to obtain money with which to defend members assert- ing claim to oyster beds by trespass thereon may be used for that purpose.-Bateman v. Hollinger (N. J. Ch.) 1107.
Powers of executive committee of a certain oyster association, under Act May 17, 1894, to employ funds collected by the association in the defense of members charged with trespass on oyster beds claimed by certain other members. -Bateman v. Hollinger (N. J. Ch.) 1107.
Where the articles of an association provide for notice of assessment to be published in two cities, a forfeiture, where notice is published in only one city, is void. Morris v. Metalline Land Co. (Pa.) 240.
Assumpsit will lie to recover money paid un- der a contract which has failed. - Tatro v. Bailey (Vt.) 685.
Question whether assumpsit lies against a guardian to recover money paid him on account of his ward, by whose death the right to such money becomes vested in the person who paid it. -Semmig v. Mirrihew (Vt.) 691.
Where an attorney in fact, authorized to sell his principal's land, sells it for worthless bonds, his principal may sue him in assumpsit for the money he should have received on the sale. Paul v. Grimm (Pa.) 721.
Assumpsit will lie against a tax collector to recover excessive fees paid to him.-Benton v. Goodale (N. H.) 1121.
In a contract under seal, which is fully per- formed in all respects except a payment of mon- ey, which there is no covenant to do, the money
An attachment by a nonresident of the assets of a nonresident insolvent corporation in the possession of a nonresident receiver of the cor- poration will be dissolved.-Merchants' Nat. Bank v. Pennsylvania Steel Co. (N. J. Sup.) 545.
Evidence examined, and held that an attach- ing creditor had no lien on the insurance mon- ey of his debtor as against a mortgagee and an assignee of the policy.-Donnell v. Donnell (Me.) 67.
ATTORNEY AND CLIENT. Remarks of counsel, see "Trial.”
The taking by an attorney of any independ- ent security to secure payment of his fee waives his lien, though the security proves unavailable. Fulton v. Harrington (Del. Err. & App.) S56.
In the absence of a special agreement the solicitor who conducts an ordinary undefended foreclosure suit cannot charge his client more than the taxed bill of costs.-Mundy v. Schantz (N. J. Ch.) 322.
The chancery court has power by summary proceedings to compel a solicitor to pay to his cli- ent money belonging to the latter, and at the same time to ascertain the amount of compen- sation due the solicitor.-Mundy v. Schantz (N. J. Ch.) 322.
AUDITA QUERELA.
In the absence of fraud, the writ is not availa- ble to set aside a taxation of costs where no tender of the amount legally due has been made. Rickard v. Fisk (Vt.) 93.
Where plaintiff's declaration did not set up the injustice of defendant's demand, and was held good on demurrer, defendant cannot set up that his claim was a just one. Sawyer v. Cross (Vt.) 5.
Australian Ballot Law.
See "Elections and Voters."
may be recovered in assumpsit on an implied See "Carriers"; "Pledge." promise.-Varney v. Bradford (Me.) 115.
Assumption of Risks.
See "Master and Servant."
See, also, "Execution"; "Garnishment." Continuance before justice, see "Justices of the Peace."
Liability of sheriff, see "neriffs and Consta- bles.'
Where the voucher states the amount of the claim, but not on what account contracted, it is insufficient.-Burk v. Tinsley (Md.) 604.
An attaching creditor, who, before levy, dis- covers an unrecorded deed from the debtor for a valuable consideration, has such notice as de- prives his judgment of priority. - Merchants' Bldg. & Loan Ass'n v. Barber (N. J. Ch.) 865.
An application for a writ of certiorari to re- view attachment proceedings on the ground that no bond was given must show that the attach- meat was based on fraud.-Weed v. Lewis (Md.) 610.
Assigned property is subject to attachment where the trustee has not filed a bond, as re- quired by Code, art. 16, § 205.-White v. Pitts- burg Nat. Bank of Commerce (Md.) 567.
See "Elections and Voters."
See "Assignment for Benefit of Creditors"; "In- solvency."
BANKS AND BANKING. Evidence examined, and held, that the bank receiving a check for collection was not negli- gent in failing to send it to the clearing house on Saturday, where the bank on which it was drawn closed on Friday, it having no knowl- edge that it would resume payment on Satur- day.-Farmers' & Mechanics' Bank v. Third Nat. Bank (Pa.) 1008.
It is a question for the jury whether a set-
tlement made by the cashier of a bank with an- other bank, its clearing-house agent, was with- in the authority of such cashier, and was rat- ified by his bank by failure to object thereto for four years.-Farmers' & Mechanics' Bank v. Third Nat. Bank (Pa.) 1008.
Where an insolvent at the time of making an assignment is indebted to a bank which has a note belonging to him for collection, the bank can apply the proceeds on the note.-Greene v. Jackson Bank (R. I.) 963.
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