INDEX-DIGEST KEY NUMBER SYSTEM) THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and ABANDONMENT. See Deeds, § 160; Easements, §§ 30, 36; Landlord and Tenant, § 33. ABATEMENT AND REVIVAL. See Attachment, § 272; Indictment and Information, § 15. I. OBJECTIONS TO JURISDICTION. V. DEATH OF PARTY AND REVIVAL (A) Abatement or Survival of Action. A creditor's suit or a suit in the nature thereof does not abate by death of a plaintiff or any creditor who may come in, if there is a plaintiff or creditor competent to prosecute.-Id. § 68 (Conn.) An action was not abated by defendant's death after judgment.-Coit v. Sistare, 84 A. 119. (B) Continuance or Revival of Action. $71 (Md.) Code 1904, art. 16, § 8, relating to revivor of actions, held not to apply to a suit where a party unnecessarily joined died prior to final decree.-Middendorf v. Baltimore Refrigerating & Heating Co., 84 A. 150. ABORTION. See Breach of Marriage Promise, §§ 21, 31. ABUTTING OWNERS. Equity, 378; Executors and Administrators, $$ 118, 507; Husband and Wife, § 232; Insurance, § 59; Receivers, § 203; Reference, 99; Trusts, § 327. ACCOUNT, ACTION ON. 818 (Del.Super.) Book entries, when considered independent of plaintiff's bill head, held not made with suflicient particularity to discould not support an action of assumpsit on close the nature of plaintiff's demand and hence the book accounts.-Consolidated Stone Co. v. Anderson, 84 A. 1031. An item of demurrage is not properly chargeable in a book account, so that such item cannot be recovered for in an action on the account.-Id. Items in a book account held not to sufficiently show the nature of the entries to entitle defendant to a judgment at the first term on an affidavit of demand.-Id. ACKNOWLEDGMENT. See Execution, § 245; Limitation of Actions, §§ 142-151. ACTION. See Abatement and Revival; Divorce, § 62. II. NATURE AND FORM. $27 (N.J.Sup.) Under 3 Comp. St. 1910, p. 4120, $ 218, an action for violation of Act May 10, 1884 (P. L. p. 339), may be brought on contract.-Miller v. Stampul, 84 A. 201. $27 (Pa.) Where complaint alleges a breach of contract to protect celery stored by defendant from freezing, the fact that the breach occurred through negligence does not render the action one for tort, nor is the doctrine of tort involved, inasmuch as defendant made no profit out of its wrongful act.-Stanton v. Phil See Municipal Corporations, §§ 385, 407, 413. adelphia & R. Ry. Co., 84 A. 832. ACCEPTANCE. $35 (Pa.) Both at common law and under Act March 21, 1806 (4 Smith's Laws, p. 332) § See Landlord and Tenant, § 86; Sales, § 176. 13, where an act creates a right or liability, ACCIDENT INSURANCE. See Insurance, § 451. ACCORD AND SATISFACTION. §12 (Conn.) A receipt in full may be pleaded in bar of the entire debt, although given upon payment of but a part.-Johnson v. Cooke, 84 A. 97. ACCOUNT. See Account, Action on; Action, § 57; Appeal and Error, § 1009; Counties, § 94; or imposes a duty, and prescribes a particular § 57 (Md.) A suit by a mortgagor for an accounting and a release of the mortgage because paid, and a suit by him to annul a deed purporting to have been executed by him and relied on by the holder of the mortgage as a defense to the first suit, are properly consolidated on motion of plaintiff to prevent a multiplicity of suits.-Wilmer v. Placide, 84 A. 491. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER $21 (Pa.) Children adopted either under Act May 4, 1855 (P. L. 430), or under Act April ADVERTISEMENT. See Municipal Corporations, § 330. AFFIDAVITS. See Account, Action on, § 18; Attorney and Client, § 165; Bills and Notes, § 537: Chattel Mortgages, § 63; Eminent Domain. § 188; Executors and Administrators, § 444: Garnishment, §§ 2432, 244; Mortgages, 454; New Trial, § 140; Pleading, $8 347, 348; Trial, § 344. AFFRAY. See Homicide, §§ 31, 116. AFTER-BORN CHILDREN. AGENCY. 2, 1872 (P. L. 31), are not entitled to any See Adoption, § 21. ADULTERY. See Divorce, §§ 129, 171. ADVERSE POSSESSION. AGRICULTURE. See Landlord and Tenant, § 134; Sales, § 1682. AIDER BY VERDICT. See Pleading, § 432. See Appeal and Error, § 907; Easements, § I. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General. § 8 (Md.) Under Act Jan. 31, 1825 (Acts 1824, c. 79), and Acts 1844, c. 287, § 10, a canal company with power to acquire land held to acquire a fee-simple title to land, which title is not lost by adverse possession by mere length of possession, with or without its permission.Bond v. Murray, 84 A. 655. §8 (Vt.) Lands granted to trustees to be held and leased for a county grammar school are held for a public use; and hence limitations will not run against the right of the trustees to recover the lands from one holding under a void conveyance.-Trustees of Caledonia County Grammar School v. Kent, 84 A. 26. ALIMONY. See Divorce, §§ 199-226; Husband and Wife, $$283, 2852. ALTERATION OF INSTRUMENTS. § 24 (Conn.) Receipt in which a material alteration was made held not admissible in evidence.-Johnson v. Cooke, 84 A. 97. § 27 (Me.) In an action by a contract purchaser to recover from the vendor's broker the sum paid as a forfeiture for breach of the contract, which plaintiff alleged was vitiated by a material alteration, the burden was on plaintiff to show that the contract was altered after it left the vendor's hands and without his knowl edge or consent.-Stevens v. Odlin, 84 A. 899. AMENDMENT. (D) Distinct and Exclusive Possession. See Appeal and Error, §§ 15, 255; Garnish- (F) Hostile Character of Possession. III. PLEADING, EVIDENCE, TRIAL, 8114 (R.I.) Each case involving claim of title by adverse possession must be largely considered upon its own facts.-Dodge v. Lavin, 84 A. 857. 8115 (R.I.) The conditions under which title may be acquired by adverse possession are wholly statutory; it being for the court to determine whether the acts relied on have been satisfactorily proven, and whether they are sufficient in law to constitute title by adverse possession. AMUSEMENTS. ANIMALS. See Carriers, §§ 91, 208, 209; Estoppel, § 75; § 4 (Vt.) Under P. S. 5623-5629, 5635, defendant held not guilty of "keeping" a dog without a collar, though a constable was justified in shooting the dog, which had lost its collar.State v. Kelley, 84 A. 861. § 26 (Vt.) A lien for care and training of a horse placed in the care of another with the Chase v. Robinson, 84 A. 867. consent of the owner is given by P. S. 2658.— APPEAL AND ERROR. See Certiorari; Courts, $ 203-214; Criminal Law, 88 1005-1159; Divorce, 182; Eminent Domain, § 238; Exceptions, Bill of; Executors and Administrators, § 85; Justices of the Peace, § 144; New Trial; Prohibition; 1. NATURE AND FORM OF REMEDY. § (Md.) The right of appeal from courts of equity is wholly statutory.-Peoples v. Ault, 84 A. 60. $5 (Conn.) Writs of error for errors in matters of fact lie to enable the party aggrieved by a judgment to present to the court rendering the judgment, or to some other court to which the writ is by statute made returnable, certain facts not appearing on the record which, if true, show that the judgment is void or voidable.-Town of Montville v. Alpha Mills Co., 84 A. 933. § 15 (Conn.) Appeals held properly combined by an amendment which did not fall within Practice Book 1908, p. 279, § 39, prohibiting certain amendments to reasons of appeal with out leave of court.-Palmer v. Frost, 84 A. 277. III. DECISIONS REVIEWABLE. (D) Finality of Determination. § 70 (Pa.) Order refusing application for change of venue under Act March 30, 1875 (P. L35) § 1, is interlocutory and not appealable. -In re Valley Traction Co., 84 A. 829. $74 (Md.) Under Code 1904, art. 5, §§ 2628, an order overruling a plea to a part of a bill is not appealable, but is only reviewable on appeal from a final decree.-Peoples v. Ault, 84 A. 60. (E) Nature, Scope, and Effect of Decision. § 87 (Me.) Exceptions do not lie to discretionary rulings.-Curtis v. Cornish, 84 A. 799. (F) Mode of Rendition, Form, and Entry of Judgment or Order. § 129 (Pa.) Where motion for judgment on the whole record, under Act April 20, 1911 (P. L. 70), is dismissed, such action is not a judgment from which an appeal lies.-Lipsky v. Stolzer, 84 A. 688. 134 (Pa.) Under Act April 20, 1911 (P. L. 70), authorizing judgment by the court after the jury had disagreed, the record should disclose the several steps in the proceeding, and that judgment was entered in favor of the appellee; and, unless these facts are shown to exist, the trial court cannot enter judgment, nor can an appeal be taken from its refusal.Lipsky v. Stolzer, 84 A. 688. V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW. (A) Issues and Questions in Lower Court. § 169 (Pa.) Under Act June 16, 1836 (P. L. 682), the Supreme Court, on appeal from the orphan's court, will consider a question neither discussed nor raised in the court below.-In re Heckman's Estate, 84 A. 689. § 170 (Pa.) Where an appeal from the superior court was allowed solely because a constitutional question was involved, and such question was waived in the superior court, it would not be considered in the Supreme Court. -In re Chartiers Creek Bridge, 84 A. 351. § 172 (Conn.) A cause of action, not included in the complaint, cannot be relied on upon appeal.-Gelford v. City of Hartford, 84 A. 85. § 173 (Conn.) Defendants in a suit to rescind a conveyance for their fraud, not having raised $185 (Vt.) Where defendant in a suit to restrain him from using the land of plaintiff as a way to and from a street answered the bill and tried the case on the merits, and allowed a decree to pass without questioning the jurisdiction of the court, the question of jurisdiction was waived in the absence of any suggestion as to why the general rule of waiver should not apply.-Barber v. Bailey, 84 A. 608. § 193 (Conn.) Defendant held not entitled to complain that the court erred in permitting judgment on the pleadings; he not having objected below.-Vincent v. S. Alexander Sons Co., 84 A. 84. $197 (Vt.) Under the express terms of P. S. 1986, a question of variance not passed upon by the trial court is not reviewable, unless it affects the "right of the matter."-Fitzsimons v. Richardson, Twigg & Co., 84 A. 811. Under P. S. 1986, held, that a question of variance raised in the trial court cannot be deemed to have been passed upon within the meaning of that section.-Id. § 204 (Me.) While contracts, not offered in evidence, were the best evidence of their contents, testimony as to the contents, received without objection, must be considered on appeal.-Doylestown Agr. Co. v. Brackett, Shaw & Lunt Co., 84 A. 146. for instructions, apart from that of procuring § 216 (Conn.) The purpose of filing requests a favorable charge, is to make the rulings of the trial court on pertinent questions of law a matter of record, so that they may be reviewed.-Urbansky v. Kutinsky, 84 A. 317. (C) Exceptions. § 255 (Pa.) Whether amendment in attachment proceeding substituted different measure of damages, and whether such substitution is the introduction of a new cause of action, will not be considered on appeal, in an action on bond to dissolve the attachment, in absence of exception to amendment at the original trial.Commonwealth v. A. B. Baxter & Co., 84 A. 136. § 260 (N.H.) A ruling forbidding the withdrawal of a question cannot be reviewed, if not excepted to.-Holman v. Boston & M. R. R., 84 A. 979. stand like the report of a special master within $260 (Vt.) The findings of the chancellor P. S. 1268, and questions of the admissibility of evidence must be reserved by exceptions filed in the court below, or they will not be reviewed on appeal.-Barber v. Bailey, 84 A. 608. § 262 (Vt.) The manner of submitting the amount of loss under a fire policy to the jury cannot be reviewed on appeal in the absence of an exception taken thereto at the time.-Citizens' Savings Bank & Trust Co. v. Fitchburg Mutual Fire Ins. Co., 84 A. 970. $265 (Pa.) The correctness of the construction of a lease cannot be reviewed on appeal, where the findings of fact and conclusions of law as to such construction are not controverted by the exceptions.-Trustees of Proprietors of Kingston v. Lehigh Valley Coal Co., 84 A. 820. 8274 (Vt.) Plaintiff's exception to direction of verdict in defendant's favor and rendition of judgment thereon raises the question whether there was evidence fairly tending to sustain plaintiff's claim.-Fitzsimons V. Richardson, Twigg & Co., 84 A. 811. VII. REQUISITES AND PROCEEDINGS | loss of her services on account of the same FOR TRANSFER OF CAUSE. accident.-Stewart Taxi Service Co. v. Getz, N (B) Petition or Prayer, Allowance, and A. 338. Certificate or Affidavit. § 362 (Conn.) Under Gen. St. 1902, § 798, reasons of appeal, each beginning with "whether or not the court erred," were not in proper form.-Johnson v. Cooke, 84 A. 97. $ 687 (Vt.) Exceptions to a master's report involving evidence not sent up, cannot be cursidered on appeal.-Thompson-Starrett Co. T. E. B. Ellis Granite Co., 84 A. 1017. X. RECORD AND PROCEEDINGS NOT wife was incompetent to testify to certain IN RECORD. (C) Necessity of Bill of Exceptions, Case, or Statement of Facts. § 553 (Me.) Where it is stipulated that the report of evidence used on a motion for a new trial may be referred to as explaining the bill of exceptions, it may be referred to to explain the bill, but not to add to it.-Doylestown Agr. Co. v. Brackett, Shaw & Lunt Co., 84 A. 146. (F) Making, Form, and Requisites of Transcript or Return. § 597 (Md.) Under Code 1904, art. 5, § 34, it is the duty of the clerk in preparing a transcript, on an appeal in equity, to omit irrelevant and immaterial matters and to determine the question of materiality by conference with the attorneys for the parties or the trial court. -Middendorf v. Baltimore Refrigerating & Heating Co., 84 A. 150. Testimony relating to inadequacy of the price obtained for property sold under judicial sale was properly omitted from the transcript where appellant's solicitors elected not to present such question on appeal.-Id. A carbon copy of an official stenographer's transcript of the testimony after having been examined and compared with the original held properly included in the transcript.-Id. (1) Defects, Objections, Amendment, and Correction. § 635 (Md.) Respondent's remedy in case of an omission from the appeal record is to apply for a writ of diminution and not to move to dismiss. Middendorf v. Baltimore Refrigerating & Heating Co., 84 A. 150. § 690 (Vt.) No error is shown where it ap pears that plaintiff objected that defendant's things, but it does not appear what those certain things were.-Comstock's Adm'r v. Jacobs, 84 A. 568. § 704 (Vt.) The findings of the chancellor wil not be considered, unless the evidence is attached to and submitted by the chancellor's report as in the case of a master's report.-Barber v. Bailey, 84 A. 608. (L) Matters Not Apparent of Record. §714 (Md.) The case will be considered as if the rule of the lower court were regularly be fore the appellate court, though it is not in the record; it being conceded that it is properly stated in the briefs, and no objection to its absence from the record having been made.Taylor v. Denny, 84 A. 369. XI. ASSIGNMENT OF ERRORS. $719 (Conn.) Error, if any, in the charge, not pointed out by assignment, is not reviewable.Vincent v. S. Alexander Sons Co., 84 A. 84. § 719 (Me.) On appeal from a decree appointing a sole trustee under a will, appellant is not entitled to question the court's authority to make the appointment, if that question is not raised by the reasons for the appeal.—Burpee v. Burpee, 84 A. 648. $719 (Pa.) Whether amendment in attachment proceedings substituted different measure of damages, and whether such substitution was the introduction of a new cause of action, will not be considered on appeal in an action on bond to dissolve the attachment in absence of assignment of error.-Commonwealth v. A. B. Baxter & Co., 84 A. 136. § 722 (Pa.) On appeal to the Supreme from $ 656 (Conn.) A motion to correct enumerat- the superior court, the assignments of error ed paragraphs in the finding of facts, on the filed in the superior court should be set forth, ground that they are not justified by the evi-and the alleged error in acting thereon specified. dence, made a part of the record under Gen. -Garrett v. Turner, 84 A. 354. St. 1902, § 797, will be denied because of failure to ask to have the enumerated paragraphs stricken out.-Lowe v. Atwood, 84 A. 361. no exception taken to the action of the court § 722 (Pa.) Assignments of error which show cannot be considered.-Merritt & Co. v. Poli, 84 A. 683. § 659 (Md.) Where essential matter is omitted from the record, the court of appeals on an application for a writ of diminution may re-admission of depositions taken at former trial § 728 (Pa.) An assignment of error to the quire appellant to furnish it, and, in default, will not be considered, where the depositions may dismiss the appeal.-Middendorf v. Baltiare not printed in the assignment.-Lyke v. more Refrigerating & Heating Co., 84 A. 150. Where appellant brings up only a small part Lehigh Valley R. Co., 84 A. 595. of a particular record in order to have his transcript filed within the time, or to avoid proper costs, the court may refuse a writ of diminution if the additional record cannot be filed within the time allowed.-Id. § 660 (Md.) Respondent's remedy in case of an omission from the appeal record is to apply for a writ of diminution and not to move to dismiss.-Middendorf v. Baltimore Refrigerating & Heating Co., 84 A. 150. (J) Conclusiveness and Effect, Impeaching and Contradicting. § 662 (Conn.) The record on proceedings on writ of error returnable to the superior court cannot be contradicted by either party.-Town of Montville v. Alpha Mills Co., 84 'A. 933. (K) Questions Presented for Review. § 671 (Md.) A judgment against a taxi company for injury to a passenger in collision with a street car, not supported by evidence of the company's ownership of the taxicab, cannot be supported by reference to the record in an in § 728 (Pa.) Assignments of errors to rulings on evidence cannot be considered where copies of the papers are not contained therein, though printed in the appendix.-Merritt & Co. v. Poli, 84 A. 683. Assignments of error to rulings on evidence must show the offer of testimony rejected, or the testimony admitted.-Id. An assignment of error to the refusal of the court to strike out testimony is a violation of rule 28, if it does not quote the evidence.-Id. $730 (Conn.) An assignment of error which failed to point out the part of the charge com plained of was insufficient.-Johnson v. Cooke, 84 A. 97. § 730 (Pa.) An assignment of error generally that the charge was not adequate, without quoting its language, is a violation of rules 26 and 27.-Merritt & Co. v. Poli, 84 A. 683. An assignment of error, that the court erred in failing to call the attention of the jury to certain matters set forth therein, is bad, where no request to so charge was shown.-Id. $733 (Pa.) Assignments of error to an order decree of which complaint is made is incom- | (D) Amendments, Additional Proofs, and plete, and will not be considered.-Hilliard v. Sterlingworth Ry. Supply Co., 84 A. 680. § 733 (Pa.) An assignment of error, that the court erred in refusing to enter judgment notwithstanding the verdict, is insufficient.-Mer ritt & Co. v. Poli, 84 A. 683. 736 (Pa.) Assignments of error containing two exceptions are a violation of rule 26.Merritt & Co. v. Poli, 84 A. 683. An assignment of error showing only one exception, but embracing two points, is a violation of rule 26.-Id. XII. BRIEFS. § 758 (Vt.) Exceptions to a master's report not covered by the brief will not be considered on appeal.-Thompson-Starrett Co. v. E. B. Ellis Granite Co., 84 A. 1017. Trial of Cause Anew. § 895 (Me.) On appeal from a decree, all questions presented by the record are reviewable, regardless of a subsequent decree entered by the trial justice.-Pride v. Pride Lumber Co., 84 A. 989. (E) Presumptions. $907 (Vt.) Where the facts did not necessarily show that the use by one of a way over the land of another to and from a street was adverse, but might have been permissive, and the chancellor in a suit by the owner to restrain such use granted relief, the Supreme Court on appeal must presume that the use was permissive.-Barber v. Bailey, 84 A. 608. $928 (Me.) In the absence of anything in the bill of exceptions tending to show that an instruction was incorrect, it must be assumed on XIII. DISMISSAL, WITHDRAWAL, OR appeal that it was correct.-York v. Parker, 84 ABANDONMENT. XVI. REVIEW. (A) Scope and Extent in General. § 842 (Conn.) Whether or not a municipal corporation exercised reasonable care in permitting the opening of a street is a question of fact; and so the trial court's determination on that issue is one of fact.-Gelford v. City of Hartford, 84 A. 85. § 842 (Me.) If there is no evidence to support a trial justice's findings of fact necessary to sustain the judgment, or if the only inference which can be drawn from the existing facts does not support the judgment, the finding is an erroneous decision of the legal conclusions to be drawn from the evidence, and is error in law to which exceptions lie.-Chabot & Richard Co. v. Chabot, 84 A. 892. § 842 (N.H.) A finding of fact by the trial court concerning the interpretation of a deed, being a question of law, may be disregarded by the court on appeal.-Emery v. Dana, 84 A. 976. § 843 (Me.) Defendant's exceptions, brought after judgment for plaintiff, must be overruled, as presenting moot questions, where it appears that, if the exceptions should be sustained and the case remanded, plaintiff would be entitled to have the same judgment entered. Damon v. United Photo Materials Co., 84 A. 464. $843 (Md.) The court on appeal from a decree overruling a demurrer to a bill stating a good cause of action for injunctive relief to restrain a lessee from opening a highway over the leased premises will not consider whether the bill also states a cause of action for the cancellation of the lease as prayed for.-Gale v. McCullough, 84 A. 469. § 863 (Pa.) On appeal from a decree continuing a preliminary injunction restraining a street railway company from exercising the power of eminent domain, based on the ground that the company was not vested with such power, that question will be considered.-Keys v. Uniontown Radial St. Ry. Co., 84 A. 1109. (B) Interlocutory, Collateral, and Supplementary Proceedings and Questions. $870 (Vt.) Where the chancellor ordered that the hearing on the merits should go on without prejudice to the demurrer to the bill, and the cause was heard on the merits, an appeal brings up the whole case, and the demurrer must be considered in the Supreme Court.-Fairbank's Adm'r v. Keiser, 84 A. 610. A. 939. is doubtful, the Supreme Court must, in sup§ 931 (Vt.) Where the meaning of a finding port of the judgment, assume that the trial court interpreted the finding so as to justify the judgment.-Scott v. St. Johnsbury Academy, 84 A. 567. § 933 (Conn.) In determining whether the trial court abused its discretion in setting aside be indulged in favor of its action.-Cables v. a verdict, every reasonable presumption should Bristol Water Co., 84 A. 928. § 934 (Me.) In the absence of specific findings by the trial justice, it must be assumed that he found in favor of the prevailing party on all issues of fact necessarily involved; and his decision is conclusive and not open to exceptions if the evidence, with the legitimate inferences deducible therefrom, viewed most favorably for the prevailing party, supports the judgment.Chabot & Richard Co. v. Chabot, 84 A. 892. $967 (Vt.) Denial of a motion to recommit a case to a master, being a matter of discretion, will not be reversed on appeal.-Thompson-Starrett Co. v. E. B. Ellis Granite Co., 84 A. 1017. Failure of the chancellor in the exercise of discretion to report the evidence on which certain findings were based held not reviewable on appeal.-Id. Master's refusal in the exercise of discretion to require petitioner to produce its books showing the cost of certain items of which defendant was charged a pro rata share held not reviewable on appeal.-Id. § 970 (Md.) Admission in rebuttal of evidence proper in chief is not subject to review. Baltimore, C. & A. Ry. Co. v. Moon, 84 A. |