GREEN, J. For the reasons expressed in the opinion just filed in the case between the same parties (Dec. term, 1879; 35 Atl. 106), the judgment in this case is affirmed.

SMITH v. BATES, City Treasurer. (Supreme Court of Rhode Island. Oct. 3, 1896.) Action by Nellie M. Smith against Frank M. Bates, city treasurer. B. M. Bosworth and W.

Waldo Robinson, for plaintiff. J. L. Jenks, for defendant.

PER CURIAM. In this case the evidence is conflicting. The determination of the issue of fact submitted depended on the credibility of witnesses, of which the jury, who had the witnesses before them, were the judges. They found for the plaintiff, and it is not sufficiently clear that they made a mistake to justify us in setting aside the verdict.

ABATEMENT.

Of nuisance, see "Health"; "Nuisance."
Of taxes, see "Taxation."

ABATEMENT AND REVIVAL.

An action to recover damages for false repre-
sentation in the sale of property does not sur-
vive the death of the defendant.-Jones v. Ellis'
Estate (Vt.) 488.

ABORTION.

ACCORD AND SATISFACTION.

See, also, "Compromise and Settlement"; "Pay-
ment."

Satisfaction of debt by bequest to creditor, see
"Wills."

Accord and satisfaction is special matter of
defense, and must be pleaded.-Seaver v. Wild-
er (Vt.) 351.

Settlement held to be on a sufficient legal con-
sideration, and not conditional. Rogers Silver
Plate Co. v. Jennings (Conn.) 281.

Settlement between શ manufacturing con-
cern and its selling agent held a complete de-
fense to a subsequent claim for special dam-
ages.-Rogers Silver Plate Co. v. Jennings
(Conn.) 281.

To recover for an account stated, the nature
of the original debt need not be shown, but it
must appear that a certain claim existed con-
cerning which an account was stated.-Powers
v. New England Fire Ins. Co. (Vt.) 331.

Recovery can be had on a count for an ac-
count stated, though it is for a single item.-
Powers v. New England Fire Ins. Co. (Vt.)
331.

ACKNOWLEDGMENT.

Of claims against United States, see "United
States."

To toll statute, see "Limitation of Actions."

For accounting by guardian, see "Guardian and
Ward."

For breach of covenant, see "Vendor and Pur-
chaser."

For death by wrongful act, see "Death."
For partnership accounting, see "Partnership."
For deceit, see "Fraud."
For price of goods, see "Sales."
For rent, see "Landlord and Tenant."
Injunction against, see "Injunction."
On bills and notes, see "Bills and Notes."
On bond, see "Bonds."

On contract, see "Contracts."
On policy, see "Insurance,'
Particular actions, see "Assumpsit, Action of";
"Attachment"; "Breach of Marriage Prom-
ise": "Creditors' Suit"; "Death"; "Divorce";
"Ejectment"; "False Imprisonment"; "Gar-
nishment": "Injunction"; "Libel and Slan-
der": "Malicious Prosecution"; "Manda-
mus"; "Partition": "Quieting Title"; "Re-
plevin": "Specific Performance"; "Trover and
Conversion."

To construe will, see "Wills."
To enforce lien, see "Mechanics' Liens."

- stockholder's liability, see "Corporations."
To quiet title, see "Quieting Title."

tribunal.-Chappell v. Edmondson Ave. C. &
E. C. Electric Ry. Co. (Md.) 19.

Where the record does not show the amount of
property involved in proceedings under a lunacy
commission, before taking their appeal appel-
lants should present to the court below such evi-
dence as will enable it to make the certificate as
to the jurisdictional amount as required by Act
June 24, 1895.—In re Misselwitz (Pa.) 722; Ap-
peal of Seddinger, Id.

An appeal from a decree enforcing performance
of a traffic agreement, on the ground that it does
not sufficiently determine the details of the ar-
rangement, held premature, where these matters
could only be worked out after the decree went
into effect.-Cumberland Val. R. Co. v. Gettys-
burg & H. Ry. Co. (Pa.) 956.

Bond.

Refusal of a mandamus is not reviewable.-
American Transp. & Nav. Co. v. New York, S.
& W. R. Co. (N. J. Err. & App.) 1118.

Where a plea in abatement was not received,
it will be presumed, in the absence of a showing
to the contrary, that it was offered too late.-
Spencer v. Patten (Md.) 1097.

plea should be presented for review by a bill of
The sustaining of a motion ne recipiatur to a
exceptions.-Spencer v. Patten (Md.) 1097.

A verdict unmistakably wrong will be set aside
on appeal.-Cummings v. Kennebec Mut. Life
Ins. Co. (Me.) 1032.

Harmless error.

Where a pleading is manifestly bad, disposing
of the question by sustaining a motion ne recipia-
tur is harmless.-Spencer v. Patten (Md.) 1097.

A refusal to grant a continuance on account of
the absence of a witness is not ground for re-
versal where no injury is shown.-Wait v. Krew-
son (N. J. Sup.) 742.

An appeal held to have been taken from the
district court to the common pleas, though the
bond was not filed within the prescribed time,
and the appellate court for that reason refused
to entertain the appeal and remitted the tran-
script.-Prudential Ins. Co. of America v. Tay-
lor (N. J. Sup.) 798.

Practice.

A petition for mandamus, alleging that relator
was elected city collector, held to involve a title
to office and subject to immediate hearing on
appeal, under Code, art. 5, § 42.-Creager v.
Hooper (Md.) 159.

Under Judiciary Act, c. 17, § 3. the entry of
appearance by defendant in the district court
is equivalent to a plea of the general issue,
where the case is certified to the common-pleas
division on a claim for a jury trial.--Conley v.
Bryant (R. I.) 309.

Parties.

A writ of error bringing up an order of dis-
tribution among lien claimants will be dismiss-
ed, where all the parties interested are not join-
ed.-Crouse v. Lewis (N. J. Sup.) 906.

Assignments of error.
Specification of error is not sufficient where it
contains an offer of evidence, but does not include
the evidence.-Sofferstein v. Bertels (Pa.) 1000.
An assignment of error embracing several
distinct claims held defective.-Town of Nor-
walk v. Ireland (Conn.) 804.

Review.

A decision on a prior appeal, the facts being
the same, held conclusive on a second appeal.
Amsden v. Atwood (Vt.) 311.

Where one of three judges sitting in a case is
disqualified, it will be presumed the judgment
was rendered by the other two.-Martyn v.
Curtis (Vt.) 333.

On appeal from a judgment sustaining a de-
murrer to a complaint for specific performance,
it cannot be assumed that the contract was
verbal, the complaint not stating whether it was
written or verbal.-Van Epps v. Redfield (Conn.)
809.

A judgment sustaining a demurrer cannot be
sustained on the ground of discretion of the
court, when it was sustained because of an er-
roneous view by the court of law.-Van Epps
v. Redfield (Conn.) 809.

Exercise of judicial discretion in the appoint-
ment of a receiver will not be reviewed except
for its palpable abuse.-In re Misselwitz (Pa.)
722; Appeal of Seddinger, Id.

Weight and sufficiency of evidence.
The decision of the trial court as to the exist-
ence of negligence and contributory negligence
is conclusive.-Heenan v. Bridgeport Traction
Co. (Conn.) 512.

Finding on question of fact will not be dis-
turbed on appeal where no error of law has been
committed.-Aye v. Brown (Pa.) 957.

Where no questions of law are reserved, and
no exceptions taken to the rulings and instruè-
tions, questions of fact will not be reviewed.-
Inhabitants of Friendship v. Inhabitants of
Bremen (Me.) 1018.

The conclusion of the lower court, in a pro-
ceeding to compel selectmen to repair a highway,
under Gen. St. § 2674, that the highway is in
good repair, is a conclusion of fact which can-
not be reviewed on appeal.-Havens v. Town
of Wethersfield (Conn.) 503.

tiorari, weigh the evidence on which the trial
When supreme court will not, on writ of cer-
court acted.-Cavanagh v. Board of Com'rs of
City of Hoboken (N. J. Sup.) 793.
Supersedeas.

An appeal from a decree granting an injunc-
tion in chancery to the court of errors and ap-
peals operates as a supersedeas.-Pennsylvania
R. Co. v. National Docks & N. J. J. C. Ry. Co.
(N. J. Err. & App.) 433.

A decree requiring the removal of a flat boat
fastened and maintained on the river front of
property owned by the adverse party is one di-
recting the delivery of real property, and the
court may require a supersedeas bond on ap-
peal conditioned that on affirmance appellant
shall pay the value of the use and occupation of
the property, pending the appeal.-Common-
wealth v. Ewing (Pa.) 215.

Decision.

A judgment on appeal from the probate court
in a proceeding to compel the executor to ac-
count held merely to ascertain the sum due.---
Eastman v. Davis (Vt.) 73.

Where, after appeal taken from the action
of a registration officer, the election law is
changed, whereby the complainant suffers no
injury, the appeal will be dismissed.-Meloy v.
Scott (Md.) 20.

A chancery court will amend its enrolled de-
eree when necessary to give full expression to
its judgment.-Lynde v. Lynde (N. J. Ch.) 641.

In an action against a savings bank for a de-
posit, where the bank defends on the ground
that its contract was with another, a judgment
for defendant pro forma will be reversed, that

such third person may be cited in under V. S.
§ 4089.-Kavanaugh v. Vermont Sav. Bank
(Vt.) 461.

Where a recovery cannot be had under a spe-
cial count because of variance, and the judg-
ment is for more than plaintiff is entitled to on
his general count for an account stated, the
judgment will be reversed.-Powers v. New
England Fire Ins. Co. (Vt.) 331.

A satisfaction of judgment having been
stricken, a purchaser of property bound by the
judgment, who paid the judgment, held entitled,
on reversal of the order striking the satisfac-
tion, to a writ of restitution.-Whitesell v. Peck
(Pa.) 48.

The intent to do harm is an essential element.
-State v. Carver (Me.) 1030.

Instructions held erroneous which omitted the
elements of intent.-State v. Carver (Me.) 1030.
ASSESSMENT.

Of benefits arising from public improvements,
see "Municipal Corporations."

Of damages for laying out highway, see "High-
ways."
Of taxes, see "Taxation."

ASSETS.

ASSIGNEE.

In insolvency, see "Insolvency."

ASSIGNMENTS.

APPEARANCE.

ors.

Of bills and notes, see "Bills and Notes."
Of claims against United States, see "United
States."

Of error, see "Appeal and Error."

APPLICATION.

By partner, liability of firm, see "Partnership."
Execution against the person, see "Execution."
The defendant in a criminal case is not priv-
ileged from arrest on civil process while attend-
ing court to answer the criminal charge.-Wood
v. Boyle (Pa.) 853.

A constable may arrest without warrant one
whom he has reasonable grounds to believe has
been guilty of a felony.-Kirk v. Garrett (Md.)
1089.

ASSAULT AND BATTERY.
Assault with intent to rape, see "Rape."

A man, when assaulted, may assert a manly
self-defense, necessary for his protection.-State
v. Carver (Me.) 1030.

Of mortgage by assignee in insolvency, see "In-
solvency."

Of right to legacy, see "Wills."

Where defendant pays money of J., which he
third persons, without notice of a prior assigu-
had in his possession, on the order of J., to
monwealth v. Sides (Pa.) 136.
ment, he is not liable to the assignee.-Com-

The claims of an insurance company, which
paid the loss to a mortgagee, to a part of the
proceeds of the mortgage sale, are assignable.
Hare v. Headley (N. J. Ch.) 445.

ASSIGNMENTS FOR BENEFIT OF
CREDITORS.

See, also, "Insolvency."

I Where two firms, having partners in com-
mon, assign, a claim by one against the other
may be proved. In re Haines & Co.'s Estate
(Pa.) 237; Appeal of Grove, Id.

To entitle an assignee to more than 5 per cent.
commissions, his labors must be extraordinary.
-Appeal of Tustin (Pa.) 199.

An assignee may be allowed the expense of
procuring a bond, where the assignment was
made with that understanding.-Appeal of Tus-
tin (Pa.) 199.

When leave will be granted to assignee to sell
real estate which is subject to judgment liens. -
In re White (Pa.) 985; Appeal of Brown, Id.

Order allowing assignee to sell real estate which
is subject to judgment liens will not be disturbed
on appeal, in the absence of proof of abuse of
discretion. In re White (Pa.) 985; Appeal of
Brown, Id.

held not to invalidate the proceedings.-Appeal of
Failure to file schedules of creditors and assets
Howland (N. H.) 943.

ASSOCIATIONS.

See, also, "Beneficial Associations"; "Building
and Loan Associations"; "Corporations"; "Re-
ligious Societies."

Service of process on, see "Process."
Suit by member of club to enjoin commission of
indictable misdemeanor, see "Injunction."
When joint-stock company becomes corporation,
see "Corporations."