OIL. OUTSTANDING TITLE. Oil lands, construction and operation of leases, Acquisition by co-tenant, see Tenancy in Com- OPENING. Judgment, see Judgment, § 370. mon, § 19. OWNERSHIP. Of lands under navigable waters, see Navigable Sale on foreclosure of mortgage, see Mortgages, Of patents, see Patents, § 212. OPERATION. Surgical operation, liability of physician, see OPINION EVIDENCE. See Criminal Law, §§ 448-483; Evidence, §§ OPINIONS. Matters of opinion distinguished from matters OPTIONS. Of property in general, see Property, § 7. PAIS. Estoppel in pais, see Estoppel, §§ 52-95. PANEL. Selection and drawing of jury panel, see Jury, PARENT AND CHILD. To renew lease, see Landlord and Tenant, § 86. See Bastards; Guardian and Ward; Infants. ORAL AGREEMENTS. See Frauds, Statute of. ORDER OF PROOF. At trial, see Criminal Law, § 687. ORDERS. Of masten see Master and Servant, § 243. Orders for payment of money. Forgery, see Forgery. Orders of court. On motion or application for new trial, see Relating to custody of children, see Parent and Relating to pleadings, see Equity, § 264. Custody of child on divorce of parents, see Di- Habeas corpus to determine custody of child, Implied contract to pay for services rendered Liability of estate of decedent for services ren- § 2. Order as to custody of children held not PARI MATERIA. Construction of statutes in pari materia, see PAROL AGREEMENTS. Review of appealable orders, see Appeal and See Frauds, Statute of. Of corporations in general, see Corporations, §§ Laws relating to parties to actions as depriv- See Executors and Administrators, § 438. For injunction, see Injunction, § 114. For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER Persons concluded by judgment in general, see Judgment, § 708. Review as to parties, and parties to proceedings in appellate courts. Persons entitled to review, see Appeal and Error, §§ 136-147. Reversal as to one or more coparties, see Appeal and Error, § 1173. To conveyances, contracts, or other transactions. Assignment, see Assignments, § 102. I. PLAINTIFFS. (B) Joinder. I. THE RELATION. (A) Creation and Requisites. § 11. A contract held not to contemplate a partnership, but to be simply a contract of indemnity against loss.-Rosenblatt v. Weinman (Pa.) 54. $ 14. Requisites of a partnership, determined.--Jackson v. Hooper (N. J. Ch.) 130. 15. Facts held to show that complainant and defendant were engaged in a joint adventure, and were not partners.-Jackson v. Hooper (N. J. Ch.) 130. (C) Evidence. § 49. A declaration of one who purchased of plaintiff held inadmissible against defendants to Action for price of goods sold, see Sales, § 351. prove he was their partner in the purchase. Coe v. Kutinsky, Adler & Co. (Conn.) 1065; Griffin v. Same (Conn.) 1068. $ 49. A contract between C., to whom plaintiff sold tobacco, and defendants, held not to show C. was their partner in the purchase.Coe v. Kutinsky. Adler & Co. (Conn.) 1065; Griffin v. Same (Conn.) 1068. VI. DEATH OF PARTNER, AND SURVIVING PARTNERS. $247. The interest of a deceased partner held properly chargeable with a proportionate part of an amount carried in the partnership's suspense account as representing the excess of liabilities over assets.-Shearman v. Cameron (N. J. Ch.) 979. $ 249. An indebtedness of a deceased partner to one of the surviving partners held not proper-. ly chargeable against the deceased partner's inferest in the firm.-Shearman v. Cameron (N. J. Ch.) 979. § 257. Where a deceased partner's interest remains in the partnership, a charge for the good will should not be made.-Shearman v. Cameron (N. J. Ch.) 979. PART OWNERS. § 92. P. S. 1530, providing that in an action In general, see Tenancy in Common. on contract plaintiff may have judgment against the defendants found liable, notwithstanding all are not jointly liable, held to have no application in determining the sufficiency of the pleadings on demurrer.-McKillop v. Post (Vt.) 78. PARTITION. Creation of co-tenancies, and rights and liabilities of co-tenants in general, see Tenancy in Common. II. ACTIONS FOR PARTITION. (A) Right of Action and Defenses. $ 21. Legatee in whom fee-simple estate is vested, on his reaching majority, held entitled to partition.-In re Carter's Estate (Pa.) 240; Appeal of Fidelity Ins., Trust & Safe Deposit Co., Id. PART PAYMENT. Application. see Payment, § 38. Within statute of limitations, see Limitation of Actions, § 160. PART PERFORMANCE. Of contracts within statute of frauds, see Frauds, Statute of, §§ 129, 138. PATENTS. § 21. Legatee in whom fee-simple estate is vested held entitled to partition, though the will gives the executor power to divide the estate.In re Carter's Estate (Pa.) 240; Appeal of X. TITLE, CONVEYANCES, AND CONFidelity Ins., Trust & Safe Deposit Co., Id. (B) Proceedings and Relief. Equitable jurisdiction of proceedings to set aside sale and cancel deed as dependent on legal remedy, see Equity, § 47. PARTNERSHIP. See Joint Adventures. TRACTS. (C) Licenses and Contracts. Subject-matter of counterclaim in action for royalties, see Set-Off and Counterclaim, § 35. $212. Right of company owning conflicting patents to require a licensee operating a machine under one of them to procure a license to operate it under the others, stated.-Ferry-Hallock Co. v. Zipfel (N. J. Ch.) 299. PAYMENT. See Compromise and Settlement. Part payment within statute of limitations, see Limitation of Actions, § 160. PERCOLATING WATERS. See Waters and Water Courses, §§ 101, 105. PEREMPTORY INSTRUCTIONS. See Trial, § 176. Of particular classes of obligations or liabilities. Mortgages, see Mortgages, §§ 315, 319. On distribution of funds of building and loan Purchase money on sale of land, see Vendor I. REQUISITES AND SUFFICIENCY. § 17. A promissory note given by a debtor to his creditor does not operate as payment or discharge of a pre-existing indebtedness, in the absence of an agreement between the parties to that effect.-National Cash Register Co. v. Riley (Del. Super.) 362. PEREMPTORY WRIT. PERFORMANCE. Of particular classes of duties or obligations. See Covenants, § 102. Contract in general, see Contracts, §§ 280-322. Contract of sale, see Vendor and Purchaser, §§ 129-174. Contract within statute of frauds, see Frauds, Statute of, §§ 129, 138. Judgment in civil actions, see Judgment, § 894. Principal contract for improvements on land as affecting right of contractor to mechanic's lien, see Mechanics' Liens, § 93. Services by broker, see Brokers, §§ 56, 57. PERJURY. THEREFOR. § 17. Where a note is by express agreement received in payment of a pre-existing indebted- I. OFFENSES AND RESPONSIBILITY ness, it satisfies the original contract, and the party receiving it must take his remedy on it.National Cash Register Co. v. Riley (Del. Super.) 362. II. APPLICATION. $38. A payment by mortgagor on account of the mortgage cannot be withheld by the creditor for other bills owing by mortgagor.Marsh v. Vanness (N. J.) 47. IV. PLEADING, EVIDENCE, TRIAL, AND REVIEW. § 59. In an action by a building contractor for the unpaid price, the owner must plead payments not admitted in the contractor's bill of particulars.-O'Loughlin v. Poli (Conn.) 763. § 65. In an action by a building contractor for the unpaid price, the owner pleading payments not admitted in the bill of particulars has the burden of proving that he is entitled to credit on the account for any additional payments claimed.-O'Loughlin v. Poli (Conn.) 763. § 73. In an action by a building contractor for the unpaid price, the evidence held not to show alleged payments claimed by the owner.O'Loughlin v. Poli (Conn.) 763. § 76. In replevin for a cash register condi§ 76. In replevin for a cash register conditionally sold, evidence held not sufficient to go to the jury whether a note given on default in payment of an installment due was given on an express agreement that the new note should extinguish the original indebtedness.-National Cash Register, Co. v. Riley (Del. Super.) 362. V. RECOVERY OF PAYMENTS. Attempted subornation of witnesses as evidence of guilt of offense charged, see Criminal Law, § 351. PERMIT. Application for permit to open up street, see Municipal Corporations, § 683. PERPETUITIES. § 1. Interest in property held not obnoxious to the rule against perpetuities, if beginning within a life in being and 21 years thereafter, though it may extend beyond.-Bender v. Bender (Pa.) 246. § 4. Words in a testamentary gift in trust held required to be taken as words of limitation, and not as words of purchase.-Carpenter v. Perkins (Conn.) 1062. $ 4. Trust created by a will held not to violate the rule against perpetuities.-Bender v. Bender (Pa.) 246. § 6. An appointment exercised under a will authorizing the appointment as devisees of the residue of testator's estate such of his legal heirs at his wife's death as she might designate in her will held not to contravene the statute against perpetuities.-Heald v. Briggs (Conn.) 1123. $ 8. A trust to keep certain graves in good condition forever held invalid as a perpetuity, notwithstanding 1 Gen. St. 1895, pp. 350, 351, §§ 7, 14.-Hilliard v. Parker (N. J. Ch.) 447. § 8. A trust to use the income of property to purchase fuel for needy women of a specified $84. Money paid with actual knowledge of class held not in violation of the rule against all the facts in the case under a mistaken con- perpetuities.-Hilliard v. Parker (N. J. Ch.) 447. ception of the law cannot be recovered back § 8. A gift of the income of a fund to be in an action at law, nor will equity afford re-used to purchase books for a specified library lief in the absence of special circumstances en-forever held not in violation of the rule against titling the party to equitable aid.-Galard v. perpetuities.-Hilliard v. Parker (N. J. Ch.) 447. Winans (Md.) 626. PENALTIES. Construction and operation of penal statutes in general, see Statutes, § 241. Violation of health regulations, see Health, § 32. PERSONAL INJURIES. Causing death, see Death, §§ 77-103. Extent of loss and liability of insurer within accident insurance policy, see Insurance, § 527. Particular causes or means of injury. See Assault and Battery; Electricity, § 16; Explosives, § 7. Acts or omissions of carrier, see Carriers, §§ 296-305. Acts or omissions of municipality in general, see Municipal Corporations, §§ 751-847. Acts or omissions of municipal officers or agents, see Municipal Corporations, § 751. Defects or obstructions in bridges, see Bridges, $ 46. Defects or obstructions in streets, see Municipal Corporations, §§ 762-821. Malpractice or negligence of physician or surgeon, see Physicians and Surgeons, § 15. Negligence in general, see Negligence. Negligence in use of highway, see Highways, §§ 172, 184. Negligence in use of street, see Municipal Corporations, $705. Operation of railroads, see Railroads, §§ 282, 305-350, 359-400. Operation of street railroads, see Street Railroads, §§ 74-118. Particular classes of persons injured. Employés, see Master and Servant. §§ 90-289. Passengers, see Carriers, §§ 296-305, 347. Travelers on streets, see Municipal Corporations, §§ 762-821. Documentary evidence, see Evidence, § 380. Evidence preliminary to introduction in evidence, see Evidence, § 380. PHYSICIANS AND SURGEONS. Expert testimony, see Evidence, §§ 546, 553558. Validity of ordinance providing for forfeiture of license for illegal sale of cocaine, see Municipal Corporations, §§ 111, 624. § 15. A physician held not required to protest against an operation performed contrary to his advice, and hence his approval could not be inferred from his silence.-Lawson v. Crane & Hall (Vt.) 641. Title of distributees, see Descent and Distribu- In civil actions, see Pleading, §§ 93-129. tion, 76. Wrongful conversion, see Trover and Conversion. PLEADING. Conformity of judgment to pleadings, see Judgment, § 253. Indictment or criminal information or plaint, see Indictment and Information. Pleadings as evidence, see Equity. §§ 339, 342. Practice in equity, see Equity, §§ 129–323. Allegations as to particular facts, acts, or transactions. See Release, § 53. Explaining laches in bringing suit to set aside Transfer and ownership of bill or note, see In actions by or against particular classes of persons. See Landlord and Tenant, § 303; Master and Servant, § 264; Municipal Corporations, § 816. Trustees, see Trusts, § 371. In particular actions or proceedings. See Replevin, § 63; Trespass, § 43. For breach of contract in general, see Contracts, § 339. For breach of contract of sale, see Sales, § 413. For breach of covenant, see Covenants, § 114. For divorce, see Divorce, §§ 93-104. For injunction, see Injunction, § 118. For libel or slander, see Libel and Slander, §§ For separate maintenance, see Husband and On bills or notes, see Bills and Notes, § 467. To compel bringing of action to quiet title, see To establish and enforce trust, see Trusts, & To foreclose mortgage, see Mortgages, § 457. Review of decisions and pleading in appellate courts. Review of decisions as dependent on prejudicial nature of error, see Appeal and Error, § 1041. Review of decisions involving discretion of court, see Appeal and Error, § 959. I. FORM AND ALLEGATIONS IN GENERAL. In particular actions or proceedings. (A) Defenses in General. § 93. Defendant, after filing the general issue without notice of special matter in defense, cannot file special pleas setting up the same matters in defense.-Lee v. Follensby (Vt.) 327. § 93. There is no implied leave of court to file a plea of general issue as to part of the trespasses alleged, and a license as to the balance in connection with a plea of general issue as to all the trespasses, but such plea must be filed without regard to St. 4 Anne, c. 16.-Lee v. Follensby (Vt.) 327. § 99. A plea of general issue as to part of the trespass is alleged, and a license as to the balance held not demurrable for duplicity.Lee v. Follensby (Vt.) 327. (B) Dilatory Pleas and Matter in Abatement. § 106. The proper office of a plea in abatement is to state facts not apparent on the record.-Sisk v. Meagher (Conn.) 880. (C) Traverses or Denials and Admissions. § 129. Undenied allegations of the petition are taken as true, so that, where an affidavit set out in the petition was not denied by answer or otherwise, the court may consider the affidavit to be as stated in the petition.-John Statements of conclusions in affidavit for ar- stone v. Kelly (Del. Orph.) 1099. rest, see Arrest, § 29. § 23. A paragraph of a complaint held impertinent surplusage.-Coe v. Kutinsky, Adler & Co. (Conn.) 1065; Griffin v. Same (Conn.) 1068. $ 129. A fact averred in the statement of claim and not denied in the affidavit of defense is admitted.-Williams v. O'Donnell (Pa.) 205. (E) Set-Off, Counterclaim, and Cross-Complaint. (F) Affidavit of Defense or of Merits. § 34. Plaintiff, suing his landlord and the constructing contractor for damages to his goods Cross-bill in equity, see Equity, §§ 201, 202. from a collapse of a building, alleging negligence in its construction, held not entitled to insist, in order to avoid the statute of limitations, that as against the landlord the complaint would justify a recovery as for fraud or breach of an implied warranty.-Miner, Read & Garrette v. McNamara (Conn.) 933. § 34. Doubts as to rights of the parties to a suit because of the failure of the bill to allege all the facts in relation to the contract resolved in favor of defendant.-Wolfstern v. Pennsylvania Railroad Voluntary Relief Department (N. J. Ch.) 533. II. DECLARATION, COMPLAINT, PE- In particular actions or proceedings. § 40. Defendant, duly served, may be ruled to plead to plaintiff's declaration, filed out of time.-Zeek v. Rockaway Rolling Mill (N. J. Sup.) 442. $ 48. State of demand in district court held sufficient if it apprises defendant of the claim so that it is clear what is decided.-De Jianne v. Citizens' Protective Ass'n of New Jersey (N. J. Sup.) 443. III. PLEA OR ANSWER, CROSS-COM- OF DEFENSE. In equity, see Equity, §§ 178-186, 201, 202. Affidavit of defense in replevin, see Replevin, $ 63. IV. REPLICATION OR REPLY AND $183. A dilatory rejoinder will be stricken off.-State v. Brooks (Del. Super.) 599. V. DEMURRER OR EXCEPTION. In equity, see Equity, §§ 219-230. § 192. Motion to expunge impertinent paragraphs in a complaint, and not demurrer, held the proper remedy.--Appeal of Hull (Conn.) 925. § 192. If separate paragraphs of a special defense and counterclaim contain irrelevant or evidential matter only, the remedy would be by motion, and not by demurrer.-Board of Water Com'rs of City of New London v. Robbins & Potter (Conn.) 938. 203. Where defendant filed a demurrer to one count and a plea to another, and plaintiff demurred to the plea, neither demurrer_raised the question of misjoinder of counts.-Lee.v. Follensby (Vt.) 327. whole, and not reaching more than one of two § 204. Demurrers running to answers as a defenses embodied in them, leaving a second defense and cause of action to support the pleading taken as a whole, are properly overruled.Board of Water Com'rs of City of New London v. Robbins & Potter (Conn.) 938. § 204. Added counts of a declaration held not demurrable for misjoinder.-Lee v. Follensby (Vt.) 327. $214. Statements of conclusions from the facts alleged are admitted by a demurrer only |