III. CONTRIBUTORY NEGLIGENCE.
(A) Persons Injured in General.
§ 65 (Conn.) The contributory negligence rule
has no practical application except in cases
where defendant has been guilty of actionable
negligence.-Nehring v. Connecticut Co., 84 A.
301, 524.
$ 66 (Conn.) On an issue of negligence, full
means of knowledge by a person when he acts
are under ordinary circumstances treated as
the equivalent of knowledge.-Nehring v. Con-
necticut Co., 84 A. 301, 524.
§ 121 (Pa.) In an action against the pro-
§ 67 (Conn.) One's duty for his own self-pro- prietor of store for injuries to a customer fall-
tection involves the making of reasonable use ing on an alleged negligently oiled floor, a non-
of his senses under penalty of forfeiture of re- suit held properly entered, under the evidence.
covery for resulting injury.-Nehring v. Con--Spickernagle v. Woolworth, 84 A. 909.
necticut Co., 84 A. 301, 524.
§ 82 (Conn.) Contributory negligence, to bar
recovery, must have been the proximate cause
of the injury.-Nehring v. Connecticut Co., 84
A. 301, 524.
If a person placed himself in peril through
his own negligence, and the injury could not
have been avoided after discovery of his danger,
that negligence, and not negligence of the other
person in failing to use reasonable care to avoid
the accident, will be regarded as the sole proxi-
mate cause.-Id.
A person's negligence must be deemed the
proximate cause of his injury, where it contin-
ued as an active agent in producing the condi-
tions under which his injury was received down
to the time of its occurrence, or at least until
it was too late for the other, with knowledge of
his peril, to have saved him by using reasonable
care.-Id.
§ 82 (Pa.) Where the owner of a building
supplies an inadequate fire escape, he cannot
claim that injuries sustained by an employé es-
caping from the burning building would be due
to her want of familiarity with the means of
escape provided.-Kohn v. Clark, 84 A. 692.
$83 (Conn.) The last clear chance doctrine
relates only to cases where an injured person
has been guilty of negligence not proximately
causing the injury.-Nehring v. Connecticut
Co., 84 A. 301, 524.
Where, after plaintiff has placed himself in
peril through his own negligence, and defendant
has discovered the danger, the latter introduces
into the situation a new and independent act
without which there would have been no injury,
that act must be deemed the sole proximate
cause of the accident.-Id.
Where a person places himself in peril of an
agency operated by another, but in time to en-
able the latter by using reasonable care to
avoid injury, negligence of the latter will
be deemed the proximate cause of the accident,
though means of escape were open to the in-
jured person by using reasonable care if it was
apparent to the other person that he would not
avail himself thereof.-Id.
Contributory negligence cannot be said to be
a remote cause of injury merely because it is
reasonably apparent to the one who inflicts the
injury that the injured one is careless of his
safety and that in continuance of his careless-
ness he is about to place himself in a position
of danger, which he subsequently does.-Id.
Under the last clear chance doctrine, knowl-
edge of the injured person's peril, which ought
to have been known to the person in control of
the agency causing the injury in the use of due
care, has the same effect as actual knowledge.
(C) Imputed Negligence.
93 (Pa.) Negligence of driver of private
conveyance cannot be imputed to a passenger
having no control over him, unless he volun-
tarily goes into a patent danger he could have
avoided.-Trumbower v. Lehigh Valley Transit
Co., 84 A. 403.
(C) Trial. Judgment, and Review.
§ 136 (Pa.) Where the measure of duty is or-
dinary and reasonable care, varying according
to circumstances, and the facts are disputed,
the issues must be submitted to the jury.-
Stewart v. Central R. Co. of New Jersey, 84
A. 38.
136 (Pa.) Whether one external fire escape
was an adequate provision, considering the
size of the building and the number of inmates,
is a question for the jury.-Kohn v. Clark, 84
A. 692.
§ 136 (R.I.) Where, in an action for injuries,
the evidence was conflicting as to whether the
plaintiff recklessly brought the injury on him-
self, it was a jury question.-King v. Whiting,
84 A. 601.
NEGOTIABLE INSTRUMENTS.
See Bills and Notes.
NEWLY DISCOVERED EVIDENCE.
See New Trial, § 102.
See Appeal and Error, §§ 262-274, 553, 1005,
1178; Equity, § 382.
I. NATURE AND SCOPE OF REMEDY.
§6 (Conn.) The supervision which a trial
judge has over a verdict is an essential part
of the jury system and involves the exercise of
discretion by the trial judge.-Cables v. Bristol-
Water Co., 84 A. 928.
(A) Errors and Irregularities in General.
$18 (Conn.) Mispleading is not a ground for
setting aside a verdict, under Gen. St. 1902, §
805.-McCaffrey v. Groton & S. St. Ry. Co., 84
A. 284.
A petition for new trial for mispleading must
be made as provided by Gen. St. 1902, § 815,
specifying mispleading as a ground for new
trial.-Id.
§ 22 (Vt.) It was ground for a new trial that
dy by the deputy sheriff who arrested her on a
an important witness was furnished with bran-
bench warrant, and appeared in court and gave
her testimony while in an intoxicated condi-
tion.-Green v. Cross, 84 A. 22.
§ 26 (Me.) As a general rule, points not made
at the trial are considered as waived, and are
not open to the parties at the hearing before
the law court.-Coan v. Auburn Water Com'rs,
84 A. 145.
The point that under Priv. & Sp. Laws 1895,
c. 243, under which defendant water commis-
sioners were operating a water system, the de-
fendant is not liable for negligence, when not
made at the trial, will not be considered by the
law court.-Id.
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§ 69 (Conn.) In an action tried to a jury, it
was error to set aside a verdict for plaintiff, on
the ground that the jury should not have be-
lieved him.-Bergh v. Spivakowski, 84 A. 329.
§ 70 (Me.) In an action by a landlord for in-
jury to property caused by bursting of pipe con-
stituting part of a sprinkler system, defendant
held, under the evidence, entitled to new trial
on verdict for plaintiff.-Estabrooks Shirt Mfg.
Co. v. Wood, 84 A. 270.
$71 (Me.) The Supreme Judicial Court will
not, on motion for new trial, disturb a verdict,
where the evidence is conflicting.-Lawry v.
Ramsey, 84 A. 268.
871 (Me.) A verdict based on conflicting evi-
dence will not be disturbed, on motion for new
trial in the Supreme Judicial Court.-Sanfacon
v. Parent, 84 A. 465.
$71 (Me.) A verdict on conflicting evidence
will not be disturbed by the Supreme Judicial
Court on motion for a new trial.-Guptill v.
Pine Tree State Mut. Fire Ins. Co., 84 A.
529.
§71 (Me.) A verdict based on conflicting evi-
dence will not be disturbed by the Supreme
Judicial Court on motion for new trial, unless
clearly erroneous.-Howard v. Dirigo Mut. Fire
Ins. Co., 84 A. 742.
§ 72 (Me.) The Supreme Judicial Court will
not, on motion for new trial, disturb a verdict,
where the only question involved is one of fact,
though a different conclusion might have been
reached.-Merritt v. Wyman, 84 A. 268.
$ 76 (R.I.) A verdict assessing plaintiff's dam-
ages for personal injuries at $4,000 held so ex-
cessive as to entitle defendant to a new trial,
unless plaintiff remitted all of the verdict but
$1,000.-Pilling v. Benson, 84 A. 1005.
(H) Newly Discovered Evidence.
$ 102 (Me.) One is not entitled to a new trial
for newly discovered evidence which could have
been procured before the trial by reasonable dil-
igence. Shallow v. Roux, 84 A. 999.
III. PROCEEDINGS TO PROCURE
NEW TRIAL.
a term subsequent to the trial term in viola-
$117 (Me.) A motion for new trial filed at
tion of rule 19 of the superior court of Cum-
berland county is not seasonably filed.--Cate v.
Merrill, 84 A. 897.
to prove the misconduct of a juror, and not
§ 140 (N.H.) Affidavits which merely tended
that such misconduct produced the verdict, were
properly excluded as irrelevant.-Blodgett v.
Park, 84 A. 42.
for alleged refusal of a tipstaff to report a re-
§ 140 (Pa.) A new trial will not be granted
quest by the jury for further instructions, nor
on the ground that a juror had told the tip-
staff that his health would be endangered by
remaining out longer, where there was no evi-
dence as to such grounds.-Kelley v. Lehigh
Valley R. Co., 84 A. 754.
$ 150 (Me.) Moving papers to procure a new
trial for newly discovered testimony should
show that the testimony was unknown at the
trial and could not have been discovered by rea-
sonable diligence.-Shallow v. Roux, 84 A. 999.
$157 (Me.) Special motions for new trial
for newly discovered evidence must be overrul-
ed, where such evidence is not certified and re-
corded by the justice, as required by Rev. St. c.
84, § 53.-Shallow v. Roux, 84 A. 999.
See Carriers, § 53; Chattel Mortgages, § 204:
Constitutional Law, § 281; Depositions, §
56; Eminent Domain, § 10; Evidence, § 96;
Exceptions, Bill of, $ 48; Highways, § 203;
Insane Persons, §§ 33, 36; Insurance, § 535;
Judicial Sales, §§ 11, 37; Landlord and Ten-
ant, §§ 94, 152, 169; Mechanics' Liens, $$
120, 296: Municipal Corporations, §§ 518,
586, 792, 812, 816, 821; Officers, § 35; Plead-
ing, § 384; Principal and Agent, §§ 24, 177;
Taxation, §§ 658, 734; Towns, § 19.
§ 72 (Me.) Defendant is entitled to a new
trial, where the evidence is so overwhelming in See Criminal Law, § 814.
his favor as to indicate that the jury did not
give his evidence the weight it was entitled to,
or were influenced by prejudice in finding for
plaintiff.-Whitley v. Bean, 84 A. 268.
874 (Conn.) A new trial should not be grant-
ed for error in insignificant items.-Cruthers v.
Donahoe, 84 A. 322.
§ 74 (Me.) A verdict fixing the amount of
loss in an action on a fire policy will not be
disturbed by the Supreme Judicial Court, on
motion for a new trial, where no bias, preju-
dice, or improper motive on the part of the
jury appears, though insured's evidence tended
to show a loss considerably greater than the
amount awarded, while insurer's evidence tend-
ed to show a loss much less than that award-
ed.-Guptill v. Pine Tree State Mut. Fire Ins.
Co., 84 A. 529.
§ 76 (Conn.) In determining whether a
dict should be set aside as excessive, the trial
.court has a large discretion.-Cables v. Bristol
II. PUBLIC NUISANCES.
(A) Nature of Injury, and Liability There-
§ 64 (N.J.Sup.) On an indictment charging a
railroad company with creating and maintain-
ing a nuisance by the negligent and excessive
use of soft coal, proof to that effect, whereby
a public nuisance was created, was sufficient
to justify a conviction.-State v. Erie R. Co.,
84 A. 698.
§ 67 (N.J.Sup.) Instructions given by defend-
ant railroad company to its servants as to the
proper and improper method of using soft
coal is no defense to an indictment for a nui-
sance created and maintained by the use of
such coal.-State v. Erie R. Co., 84 A. 698.
(D) Criminal Prosecutions.
§ 93 (N.J.Sup.) While the use of soft coal
by a railroad company is not per se a nui-
in a built-up and populous community is a
nuisance is for the jury.-State v. Erie R. Co., See Abatement and Revival, § 71; Contracts. §
See Sheriffs and Constables, § 10.
OBJECTIONS.
See Appeal and Error, §§ 185-255, 1078; Evi-
dence, § 582.
186; Divorce, § 76; Insurance, § 156; Judg-
ment, 668; Libel and Slander, § 73; Prin-
cipal and Surety, § 119; Schools and School
Districts, § 115.
V. DEFECTS, OBJECTIONS, AND
$95 (Me.) The allowance of an amendment
to a writ, describing defendant as the "Atlan-
tic Shore Railway Company, otherwise known
as the Atlantic Shore Line Railway Com-
See Highways, § 68; Railroads, § 102; Waters pany," by striking out the word "Company" in
and Water Courses, §§ 61, 162.
both places, was proper.-Berry v. Atlantic
Shore Ry., 84 A. 740.
See Appeal and Error, § 1044.
II. ACTIONS FOR PARTITION.
(B) Proceedings and Relief.
§ 81 (Pa.) Where a bill for partition shows
that one defendant had a life interest only in
a share of the estate, with remainder to his
children, the court may, after decree and be-
fore sale, appoint a trustee to represent the
contingent rights of unborn children.-Shields
v. Aitken, 84 A. 662.
§ 103 (Md.) A person who holds as trustee
an undivided interest in property being parti-
tioned is not precluded from purchasing the
property at the sale, much less his wife.-White-
ley v. Whiteley, 84 A. 68.
§ 106 (Md.) It was not ground for refusing
to ratify a proper trustee's sale that a bidder
labored under a mistake of law, and subse-
quently from sentiment bid higher than the
successful bidder.-Whiteley v. Whiteley, 84
A. 68.
§11 (N.J.Sup.) Since, under Act March 22,
1900 (P. L. 168) § 11, the term of office of
wardens of penitentiaries of counties of the See Executors and Administrators, § 118.
first class, appointed by the chosen freeholders
under authority of section 6, is fixed at two
years, an order of the Civil Service Commis-
sion, placing such wardens in the classified serv-
ice, was unauthorized.-Hosp v. Civil Service
Commission, 84 A. 614.
(C) Eligibility and Qualification.
§ 35 (Md.) One's knowledge that he has been
appointed to an office constitutes "notice" to
him, within Code 1912, art. 70, § 11, which
provides that an office is forfeited by failure to
qualify within 30 days after receiving commis-
sion or notice of appointment.-Little v. Schul,
84 A. 649.
See Judgment, §§ 68, 393.
See Evidence, §§ 471-547.
(B) As to Third Persons.
841 (Me.) Where persons purported to con-
stitute themselves a manufacturing corpora-
tion, but no legal organization was effected,
they were liable to creditors as partners; and,
there being an understanding that profits
should be shared equally, they are equitably
entitled to an equal division on cessation of
the enterprise.-Smith v. Schoodoc Pond Pack-
ing Co., 84 A. 268.
VI. DEATH OF PARTNER, AND SUR-
VIVING PARTNERS.
§ 258 (Pa.) In an action by a bank against a
son, as surviving partner of a firm composed
of the defendant and his father, on a note in-
dorsed by the father in the firm name as an
accommodation of the maker, a verdict for
plaintiff held sustained by the evidence.-Le-
high Valley Nat. Bank v. Ott, 84 A. 507.
VII. DISSOLUTION, SETTLEMENT,
AND ACCOUNTING.
See Municipal Corporations, §§ 63, 106, 281, (D) Actions for Dissolution and Account-
370, 625, 657, 721, 897, 907, 977.
ORPHANS' COURTS.
See Courts, §§ 2002, 202.
PARENT AND CHILD.
See Adoption, § 21; Damages, § 163.
PAROL EVIDENCE.
See Evidence, §§ 417-468.
8325 (Me.) Where persons engaged in a
manufacturing enterprise become partners
through invalidity of corporate organization,
a receiver is properly appointed to wind up
the affairs and distribute the profits, they hav-
ing ceased business.-Smith v. Schoodoc Pond
Packing Co., 84 A. 268.
§10 (Pa.) A bill to restrain maintenance of
windows in a party wall and for damages held
properly dismissed where the wall was within
the defendant's line, and land along the side of
the lot was subject to the easement of an alley.
-Benner v. Cassatt, 84 A. 780.
See Carriers, §§ 280-383; Shipping, § 166.
PAUPERS.
See Charities, §§ 5, 22.
See Accord and Satisfaction, § 12; Insurance, §
604; Mortgages. § 567; Municipal Corpora-
tions. §§ 859, 894. 898, 904, 977; Principal
and Agent, § 92; Subrogation; Tender.
I. REQUISITES AND SUFFICIENCY.
§ 22 (Del.Super.) The landlord, by retaining
possession of a check sent him by the tenant as
payment for his portion of the crops until aft-
er the bringing of this suit to recover rent,
without any attempt to return the check, es-
topped himself from denying the sufficiency of
the check as a tender of rent.-Donovan v. Ma-
loney, 84 A. 1032.
V. RECOVERY OF PAYMENTS.
§ 89 (Del.Ch.) Ordinarily an action at law
is the proper remedy for the recovery of mon-
ey paid through the mistake of a debtor or
the fraud of a creditor.-Clark v. Sipple, 84
A. 1.
§ 89 (Me.) In an action to recover money paid
by executors to an attorney, evidence held to
show that the payment was voluntary and with-
out mistake of law or fact.-Hayes v. Lamond,
84 A. 411.
issue then living of any deceased brother or
sister leaving no child was repugnant to the
statute.-Sumner v. Westcott, 84 A. 921.
PERSONAL INJURIES.
See Appeal and Error, § 671; Bankruptcy. §
320, 391; Carriers, §§ 280-321, 331: Dan-
ages, §§ 58, 62, 95-100, 130, 131; Estoppel,
$ 68; Evidence, § 544; Innkeepers, § 10:
Insurance, § 451; Master and Servant, §§ 85-
302; Mines and Minerals, § 118; Municipal
Corporations, §§ 706, 796, 812, 816, 819, 821,
827; Negligence; New Trial. § 76; Rail-
roads. §§ 275, 282, 324-350, 400; Shipping,
§ 166; Street Railroads, §§ 98-117; Trial,
§ 253; Witnesses, §§ 270, 379, 395.
See Constitutional Law. § 67; Eminent Do
main, § 188; Equity, § 430.
PHYSICIANS AND SURGEONS.
See Deeds, $$ 70, 196; Evidence, §§ 537, 544,
547; Good Will, § 6; Witnesses, § 270.
holding of oneself out to the public as a physi-
86 (Vt.) Under Acts 1904, No. 133, § 10, the
cian and surgeon, without having a license, con-
stitutes an offense, without actual practice as
a physician and surgeon.-State v. Lindsay, 84
A. 612.
Acts 1908, No. 151, § 5, amending P. S. 5371.
held not to affect the offense of holding oneself
out as a physician or surgeon, created by Acts
1904, No. 133, § 10 (P. S. 5370), so that any
invalidity in the act of 1908 would not affect
the constitutionality of section 5370.-Id.
See Bail, § 62; Civil Rights, § 14; Damages, See Equity, §§ 169, 330.
§§ 76-86.
I. OFFENSES AND RESPONSIBILITY
§ 12 (Del.Gen.Sess.) Perjury can be committed
by an applicant for a marriage license in in-
correctly stating the age of his intended wife,
in violation of 26 Del. Laws, c. 244, only in
case he knew the age of the woman to be dif-
ferent from that stated, and either knowingly
or willfully made a false answer as to such age.
-State v. Dryden, 84 A. 1037.
"Knowledge," as used in the law of perjury,
defined.-Id.
§ 13 (Del.Gen.Sess.) Subornation of perjury
is the procuring of the commission of per-
jury by inciting, instigating, or persuading a
witness to swear falsely.-State v. Johnson, 84
A. 1040.
$14 (Del.Gen. Sess.) An attempt at suborna-
tion of perjury held to be an attempt to in-
duce a witness to swear falsely in a particu-
lar case.-State v. Johnson, 84 A. 1040.
II. PROSECUTION AND PUNISHMENT.
$ 27 (Del.Gen.Sess.) An indictment for subor-
nation of perjury held to sufficiently charge the
offense.-State v. Johnson, 84 A. 1040.
§ 4 (Conn.) Devises of the income of real
estate to a son for life and upon his death to
his son for life, with remainder to the brothers
and sisters of the testatrix, or upon their de-
cease within the duration of the life estates to
their children, were not repugnant to the stat-
ute against perpetuities, but a remainder over
See Abatement and Revival, § 3; Accord and
Satisfaction, § 12; Action, § 27; Appeal and
Error, §§ 172, 193, 197, 843, 870, 960, 1008,
1040, 1043, 1203; Bills and Notes, & 489;
Carriers, §§ 183, 184, 314; Constitutional Law,
§72: Contracts, §§ 338, 346; Corporations,
§§ 513, 614; Courts, § 202; Divorce, § 91;
Ejectment, §§ 26, 69; Equity, §§ 142-330;
Executors and Administrators, § 85; Frauds,
Statute of, § 152; Mandamus, § 165; Master
and Servant, §§ 258-264; Mortgages, §§ 454-
459; Municipal Corporations, § 586; New
Trial, 18: Partition, § 81; Replevin, § 69;
Sales, $8 377, 379, 396, 435; Tender, § 22;
Trial, 251; Trusts, § 387.
I. FORM AND ALLEGATIONS IN
$8 (Md.) Where fraud in obtaining a judg
ment in justice's court is made the basis of an
injunction to restrain further prosecution of
the case appealed to the circuit court, the facts
constituting the fraud must be set out.-Balti-
more & O. R. Co. v. Latimer, 84 A. 377.
§ 18 (Del.Super.) Allegations in a declara-
tion that defendant negligently and carelessly
furnished an employé with "unsafe cars," "un-
safe tracks," and "unsafe cars and tracks,"
were insufficient as
too general.-Valerii v.
Breakwater Co., 84 A. 222.
II. DECLARATION, COMPLAINT, PE-
TITION, OR STATEMENT.
§ 64 (Del.Super.) Allegations in a declara-
tion that defendant furnished an employé cars
loaded with stone in a specifically unsafe man-
ner, and furnished unsafe tracks upon which
XIII. DEFECTS AND OBJECTIONS,
WAIVER, AND AIDER BY VER-
DICT OR JUDGMENT.
§ 432 (Me.) In an action against an electric
company for injury to an employé, variance be-
tween allegation that a guy wire was in contact
with an uninsulated part of an electric wire,
and proof that the contact was at an insulated
tiff.-Dunbar v. Hollingsworth & Whitney Co.,
portion, held immaterial, after verdict for plain-
84 A. 992.
PLEDGES.
See Corporations, § 123.
VI. AMENDED AND SUPPLEMENTAL
PLEADINGS AND REPLEADER.
$236 (Md.) Though Code Pub. Gen. Laws
§ 18 (Pa.) An assignment as collateral secu-
1904, art. 75, § 35, as to amendment of plead-rity, must be strictly construed.-In re De Ha-
ings, is extremely broad in its terms, some de- ven's Estate, 84 A. 676.
gree of discretion is necessarily reposed in
courts in their exercise of the power to permit
or refuse applications to amend.-Long v. Long,
84 A. 375.
$238 (Vt.) In determining whether an amend-
ed declaration pleaded a cause of action differ-
ent from that stated in the original declara-
tion, it is proper for the court to take testi-
mony outside the record.-Spear's Adm'r v.
Armstrong, 84 A. 817.
§ 243 (Conn.) Where the complaint in a pro-
ceeding before a court of limited jurisdiction
failed to show jurisdiction, the court had no
authority to authorize its amendment, since
this would have constituted an exercise of ju-
risdiction.-Woodmont Ass'n v. Town of Mil-
ford, 84 A. 307.
§ 248 (Vt.) An amended declaration held not
to plead a new and different cause of action.-
Spear's Adm'r v. Armstrong, 84 A. 817.
$347 (Del.Super.) The statute requiring that
plaintiff shall make the affidavit of demand is
complied with, so as to prevent a judgment for
defendant, where from an inspection of the af-
fidavit the court is satisfied that the af-
fidavit was made by plaintiff, though affiant
does not swear that he is the plaintiff.-Newlin
v. Adair, 84 A. 1028.
The affidavit of demand and caption, con-
strued together, held to sufficiently show that
the affidavit was made by plaintiff, so as not to
prevent a judgment for plaintiff.-Id.
$50 (Pa.) Where a person holds stock as col-
lateral under the agreement that on default he
may either sell the stock or keep it on returning
the note, he cannot on default have the stock
transferred to his own name and keep the note.
O'Neil v. Jamieson, 84 A. 911.
See Municipal Corporations, §§ 181, 757.
POLICE POWER.
See Master and Servant, § 11; Municipal Cor-
porations, § 625.
See Adverse Possession; Chattel Mortgages, §
162 Execution, § 278: Frauds, Statute of,
§ 139; Game, §§ 7, 9; Trespass, § 20.
See Trusts, § 169; Wills, §§ 692, 693.
II. CONSTRUCTION AND EXECUTION.
33 (Pa.) Where there are sufficient funds in
the estate of the donee of a power to pay her
pecuniary legacies in full, there is no necessity
for applying Act June 4, 1879 (P. L. 88), so as
to throw them upon the trust fund: and it will
not be assumed that the donee of the power in-
tended so to exercise it.-In re Huddy's Estate,
84 A. 909.
§ 36 (Pa.) Under Act June 4, 1879 (P. L. 88),
a power of appointment may be validly exercised
without a recital thereof or direct reference
thereto.-Lloyd v. Fretz, 84 A. 450.
§ 348 (Pa.) In an action to recover balance
due on a building contract, an affidavit of de-
fense alleging that the building had not been
completed within the contract time, that de-
fendant was entitled to liquidated damages un-
PREPONDERANCE.
der the contract, and that defendant, a bank, See Evidence, §§ 596, 598.
was prevented from beginning business because
of such delay and obliged to carry salaried of-
ficers whose services were of no benefit because
of the lack of the building, held sufficient to
prevent summary judgment.-Price v. People's
Bank of Borough of Parsons, 84 A. 790.
See Adverse Possession; Easements, § 9; Limi-
tation of Actions.
XII. ISSUES, PROOF, AND VARIANCE.
$384 (Del.Super.) Under the notice of re- See Appeal and Error, §§ 907-934.
coupment, the defendant may prove any dam-
ages growing out of the transaction between
them.-Hawthorne v. Murray, 84 A. 5.
$392 (Pa.) Where a suit is brought in the
name of an administratrix on a contract, and
thereafter an amended statement is filed set-
ting out a later agreement, and the cause of ac-
tion is declared to be in the heirs and not in
the administratrix, the action cannot be sus-
tained by evidence of the earlier writing show-
ing that defendant had failed to comply with
its terms.-Pursel v. Reading Iron Co., 84 A.
Plaintiff cannot recover where he pleads a
cause of action in one party, and proves a right
to recover in another.-Id.
PRINCIPAL AND AGENT.
See Attorney and Client; Brokers: Corpora-
tions, §§ 281-333, 513, 653; Evidence, §
244; Executors and Administrators, § 118;
Fraud, § 28; Insurance, $$ 59, 378. 379;
Landlord and Tenant, § 94; Limitation of
Actions, 142; Mechanics' Liens, § 120;
Trial, § 60.
I. THE RELATION.
(A) Creation and Existence.
§ 23 (Me.) A salesman, in rendering services
for a buyer of agricultural implements, held
the buyer's, and not the seller's, agent.-Doyles-
|