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INDEX.

ABBREVIATIONS.

See Contracts, 5.

ABUSE OF PROCESS

See Process, 7, 8.

ACTIONS

1. ACTION-RIGHT OF, BY ONE IN POSSESSION, FOR IN-
JURY TO PROPERTY.-One having the possession of property may
maintain an action against a wrongdoer for an injury thereto, which
cannot be defeated by showing the title to be in some one else than
the plaintiff. (Sheridan Gas etc. Co. v. Pearson, 402.)

2. ACTIONS-TORT-VENUE.-For the purpose of redress, it
is immaterial where a tort is committed, and, the wrong being per-
sonal, the action is transitory and may be brought in the jurisdic-
tion where the wrongdoer may be found. (Meyers v. Chicago etc.
Ry. Co., 579.)

3.

ACTIONS FOR WRONGFUL DEATH-VENUE.-An action
may be brought in the courts of one state for a wrongful act or
omission occurring in another state by which death is caused, if
the statute of the latter state gives a cause of action for such
wrong. (Meyers v. Chicago etc. Ry. Co., 579.)

action

4. ACTION - WHEN DEEMED COMMENCED.-An
against a foreign corporation must be regarded as commenced within
one year after the cause thereof accrued, if within that time a com-
plaint is filed and a summons issued in good faith, though it is not
served within the year, and the complaint does not state that the
defendant is a foreign corporation nor disclose the names of its
agents on whom process can be served. (Georgia Home Ins. Co. v.
Holmes, 611.)

See Negligence, 4-7.

ADMIRALTY,

1. CONSTITUTIONAL LAW.-MARITIME LAWS CANNOT BE
CONTROLLED BY THE CONSTITUTION AND STATUTES OF A
STATE in opposition to an enactment by Congress. (Loughin v.
McCaulley, 872.)

2. VESSELS-PRACTICE IN THE STATE COURTS.-If the
owners of a vessel are sued in a state court for a liability alleged
to have resulted from their negligence in the operation of a vessel.
they should be permitted to show the value of such vessel and their
respective ownerships therein, and the jury should be instructed to
find the value of the vessel and the proportion of the ownership of
the defendants, to the end that none of them should be held answer-
able beyond the value of his interest. (Loughin v. McCaulley,
872.)

3. VESSELS-THE STATE COURTS ARE CONTROLLED BY
THE ACTS OF CONGRESS LIMITING THE LIABILITY OF

OWNERS OF VESSELS.-If such were not the case, it would be the
duty of the state court, upon bringing an action therein seeking to
enforce an alleged cause of action against the owner of a vessel, to
decline to exercise jurisdiction thereof, if, by so doing, it would im-
pose or enforce a liability forbidden by an act of Congress. (Lou-
ghin v. McCaulley, 872.)

4. DEATH OF HUMAN BEING-LIABILITY OF OWNERS OF
VESSELS FOR.-The acts of Congress limiting the liability of the
owners of vessels to their shares or interests therein apply to liabil-
ities for causing the death of a human being through the negligent
operation of such vessel. (Loughin v. McCaulley, 872.)

5. SHIPPING-LIEN ENFORCEMENT IN ADMIRALTY-JUR-
ISDICTION.-If a shipowner has a lien upon goods enforceable in
the admiralty courts, the owner thereof cannot recover them by
replevin in the state courts. (Warehouse etc. Supply Co. v. Gal-
vin, 57.)

6. SHIPPING-LIEN FOR FREIGHT-ADMIRALTY JURIS-
DICTION.-If a shipper fails to furnish or deliver to the vessel the
full amount of goods which he has contracted to furnish or deliver,
the lien of the vessel upon the goods so furnished or delivered is
enforceable in admiralty, whether the action is treated as one to
recover freight or to recover damages for the nonperformance of a
contract. (Warehouse etc. Supply Co. v. Galvin, 57.)

See Shipping.

ADMISSIONS.

See Agency, 1.

ADOPTION.

1. CHILDREN-ADOPTION OF.-The consent of the parents of
& child is not necessary to its valid adoption by another, where the
statute upon the subject is silent respecting the assent of the natural
parents. (Clarkson v. Hatton, 635.)

2. AN ADOPTED CHILD IS, IN A LEGAL SENSE, THE
CHILD BOTH of its natural and of its adopting parents, and is
entitled to inherit from each as their child. (Clarkson v. Hatton,
635.)

3. AN ADOPTED CHILD IS NOT A BODILY HEIR.-Hence
a conveyance to A. B. and his bodily heirs cannot, upon the death
of A. B., vest any estate in his adopted child. (Clarkson v. Hatton,
635.)

ADVERSE POSSESSION.

1. ADVERSE POSSESSION BY PARENT AGAINST CHILD.—
Possession of land acquired by a father under a conveyance made
to his infant child, and delivered to him, can never be the founda-
tion of, nor ripen into, a prescriptive title in his favor. (Parker v.
Salmons, 291.)

2. ADVERSE POSSESSION BY PARENT AGAINST CHILD.-
Possession of land acquired by a father, under a conveyance to his
infant child, delivered to him, and continued long after such child
reaches majority, does not ripen into a title by prescription in his
favor, without any conveyance to him, or holding other than by
virtue of his original entry. (Parker v. Salmons, 291.)

3. ADVERSE POSSESSION BY PARENT AGAINST CHILD.-
Possession of land acquired by a father under a conveyance to his
infant child, delivered to him, and continued long after such child
attains majority, under a concealment from the grantee of the ex-
istence of such conveyance, together with the exercise of rights

of ownership by renting to the grantee a portion of the land while
the latter has no knowledge of his title, does not sustain a claim
of title by prescription so as to enable the father or his representa-
tive to recover, against the grantee, possession taken by the latter
after acquiring knowledge of the existence of his title under such
conveyance. (Parker v. Salmons, 291.)

See Ejectment, 4.

AFFIDAVITS.

See Attachment, 6, 7; Notaries Public, 2, 3.

AGENCY.

1. PRINCIPAL AND AGENT.-ADMISSIONS of an agent while
he has the business in contest in hand are competent evidence
against the principal. (Albert v. Mutual Life Ins. Co., 693.)

2.

AGENCY-KNOWLEDGE OF AGENT AS KNOWLEDGE
OF PRINCIPAL.-If an agent knows, or by ordinary care can ascer-
tain, the purpose for which implements contracted to be furnished
are to be used, his knowledge is the knowledge of his principal.
(Neal v. Pender-Heyman etc. Co., 697.)

See Contracts, 12; Insurance, 59.

ANIMALS.

ANIMALS-BEES-RIGHT OF PROPERTY IN.-The mere
finding of bees, in a bee tree, on another's land, gives the finder no
right to them or to the tree. (State v. Repp, 463.)

APPEAL.

1. APPELLATE PRACTICE.-ERROR NOT PREJUDICIAL
cannot work a reversal of the judgment. (Farwell Co. v. Wolf, 22.)
2. APPEAL-ORDERS.-An order of the superior court overrul-
ing a motion to dismiss an appeal from a justice's judgment is not
appealable. (Durham Fertilizer Co. v. Marshburn, 708.)

3. APPEAL-WHAT CANNOT BE FIRST RAISED ON.-An
objection to a departure from the cause of action stated in the com-
plaint cannot be raised, for the first time, in the appellate court.
(Mills v. Hart, 241.)

PROCEDURE-HARMLESS

ERROR.—If 8

4. APPELLATE
court refuses to permit the defendant to amend his answer, but
nevertheless receives evidence upon all the issues tendered by the
proposed amendment and gives such evidence full consideration, no
injury can have resulted from such refusal. (Pacific R. M. Co. v.
Bear Valley Irrigation Co., 158.)

5. APPEAL TESTING COMPLAINT FOR THE FIRST TIME
ON.-The question as to the sufficiency of a complaint, which omits
the statement of a material fact essential to a right of recovery, may
be raised for the first time on appeal. (Metropolitan Life Ins. Co. v.
McCormick, 392.)

6. APPEAL-WHAT STATEMENT BY COURT IS NOT RE-
VERSIBLE ERROR.-If witnesses are absent when they are called
to testify, during the trial of a cause, it is improper; but not re-
versible error, for the court to remark, in the presence of the jury,
"I do not feel disposed to keep this jury waiting at the expense of
the county to suit the convenience of saloonkeepers and gentlemen
of elegant leisure." (Frankfort v. Coleman, 412.)

7.

APPEAL-CONFLICTING

EVIDENCE. THE VERDICT
OF A JURY will not be disturbed on appeal, where the evidence is
conflicting, if there is some evidence to support it, no matter what

the appellate tribunal may think about the preponderance of the
evidence. (Frankfort v. Coleman, 412.)

8. APPEAL-REVIEW OF FINDING OF FACT-CONFLICT-
ING EVIDENCE-DEPOSITIONS.-If there is any legal and com-
petent evidence to support a finding of fact, it is a general rule
that the judgment will not be disturbed, though the evidence is
conflicting. The fact that some of the evidence is in the form of
depositions does not make it the duty of the court to sift the evi-
dence to determine on which side it preponderates, where the larger
and more material part of the evidence is oral testimony, and the
court cannot say that the finding is wrong. The general rule, at
most, is modified only as to the depositions. (Lathrop v. Tracy, 229.)
9. APPEAL-QUESTIONING FACT DECLARED OR AD-
MITTED.—An express statement or admission by a party in a plead-
ing, as that a will left a life estate in certain real property to a per-
son named, cannot be questioned by him on appeal. (Floete v.
Brown, 434.)

10.

APPEAL-AFFIRMATIVE

RELIEF-WHEN DEFEND-
ANT CANNOT CLAIM ON PLAINTIFF'S APPEAL.-Upon an ap-
peal by the plaintiff from a denial of his request for a nunc pro
tunc order requiring the clerk to record a former decree, the de-
fendant can claim no affirmative relief by reason of a motion made
by himself for leave to answer, where no ruling was made upon
such motion, and he took no appeal. (Day v. Goodwin, 465.)

11. JUDGMENTS REFUSING TO DISMISS ACTIONS ARE NOT
APPEALABLE.-The remedy is to note an exception to the refusal
to grant the motion to dismiss and have it considered an appeal from
the final judgment. (Cooper v. Wyman, 731.)

12. APPEAL, WHERE PART ONLY OF RELIEF PRAYED
FOR IS GRANTED.-If a court, in express words, grants a part of
the relief prayed for, the effect of the judgment is to deny the other
part of such relief, although there are no express words of denial.
Hence, on appeal from the judgment rendered, the plaintiff may have
considered his right to the relief denied. (Floete v. Brown, 434.)

13. APPEAL.-QUESTIONS OF JURISDICTION may be raised
at any time and in any court where the case is pending. A motion
to dismiss an appeal from a justice's judgment, based on want of
proper service of process, may be made at any time in the superior
court. (Durham Fertilizer Co. v. Marshburn, 708.)

14. APPEAL JURISDICTION.-If a justice of the peace has not
obtained jurisdiction of a party by reason of the nonservice of pro-
cess in a matter in which he has exclusive original jurisdiction, the
superior court cannot, on appeal, obtain jurisdiction of such party
by ordering a summons to issue to bring him before it. The superior
court cannot create original jurisdiction on appeal. (Durham Fer-
tilizer Co. v. Marshburn, 708.)

15. APPELLATE PROCEDURE.-IF A JOINT ASSIGNMENT
OF ERROR is made by a husband and wife, it will be held good as
to both if good as to the wife. (Magel v. Milligan, 382.)

16. APPELLATE PROCEDURE WHEN NOT CONTROLLED
BY THE PROBATE PROCEDURE ACT.-Where the remedy
sought by or against an estate is not provided by the probate pro-
cedure act, but must be enforced under the Civil Code, an appeal is
governed by such code. Therefore, where the proceeding is to ob-
tain a writ of assistance to place a purchaser in possession, the ap-
peal may be taken within the time allowed by the Civil Code.
(Roach v. Clark, 353.)

17. APPELLATE PRACTICE.-The action of a trial court in re-
fusing to set aside a verdict as against the weight of evidence will

not be reviewed unless so manifestly wrong as to amount to a clear
abuse of judicial discretion, and this occurs ordinarily only when
there has been practically no proper evidence which, if believed,
would support the verdict. (Maitland v. Gilbert Paper Co., 137.)

18. APPELLATE PROCEDURE.-A BILL OF EXCEPTIONS
settled for one purpose may be used for another. Hence, though it
was presented and settled for the purpose of being used on a mo-
tion to vacate a judgment, it constitutes a part of the record on ap-
peal from such judgment, and may require its reversal, if thereby
error, prejudicial to the appellant, is disclosed. (Foley v. Foley, 147.)
19. APPEAL-COMPLIANCE WITH RULES OF COURT.-Al-
leged errors, based upon the admission or rejection of evidence,
cannot be considered, though argued by counsel, where no assign-
ment of error has been predicated thereon as required by a rule
of the supreme court. (Lathrop v. Tracy, 229.)

20.

OF

APPEAL-ABSENCE OF EVIDENCE-FINDINGS
COURT-PRESUMPTION.-It will be presumed, on appeal, where
the record does not contain the evidence, that it was sufficient to sus-
tain the findings of the court. (Hopkins v. Burr, 238.)

21. APPEAL ADMISSION OF EVIDENCE-WHAT IS NOT
PREJUDICIAL ERROR.-In a statutory action by a wife against
her husband for a failure to support her, the admission of a copy of
a decree of a court of a sister state, though improperly attested, to
establish the relationship of husband and wife between the parties,
such decree showing that they were marriageable on a certain date,
and that they were, on that date, married, is not prejudicial error,
where there is other evidence which conclusively establishes the re-
lationship. (Poole v. People, 245.)

22. APPEAL.-UNDER THE DOCTRINE OF THE "LAW OF
THE CASE," the conclusions announced by an appellate court upon
the review of a case are, on a second appeal, res judicata as to
the points decided, unless a new and different state of facts has
been established on the new trial. (Smith v. Smith, 251.)
See Judgments, 16; Trial, 1.

ASSIGNMENT.

1. ASSIGNMENTS.-A CAUSE OF ACTION FOR DAMAGES
arising from a conspiracy to defraud, by purchasing and selling
goods without paying for them, is not a cause for damages done to
personal property, and hence is not assignable. (Farwell Co. v. Wolf,
22.)

2. AN ASSIGNEE OF A CONTRACT FOR THE PURCHASE
OF LAND is not personally liable for the unpaid purchase price,
though the contract of sale and purchase provides that its stipula-
tions shall apply to, and bind, the heirs, executors, administrators,
and assigns of the respective parties. The covenant on the part of
the purchaser is personal, and hence the assignee cannot be charged
with its performance. (Lisenby v. Newton, 203.)

3. ASSIGNMENT OF LEASE-NOTICE OF MECHANIC'S
LIEN-PROTECTION OF ASSIGNEE.-If one takes a lease of a
life estate without actual notice of a mechanic's lien for materials
furnished, and assigns the lease for value, the lien of the leasehold
interest, as to him, is prior to the mechanic's lien, and the assignee
is protected, as the assignor would be, notwithstanding any actual
knowledge the assignee may have had. (Floete v. Brown, 434.)
See Corporations, 4; Executions, 11; Mortgage, 7, 8.

ASSUMPSIT.
See Usury, 1

AM. ST. KEP., VOL. LXV.-58

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