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III. CONSTRUCTION AND OPERATION. (B) Parties and Debts or Liabilities Secured.

N. E. 9.

MOTIONS.

958

55 (Mass.) Judge should sign name, and not write initials.-Volpe v. Sensatini, 144 N.

E. 104.

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III. LEGISLATIVE CONTROL OF MUNICIPAL ACTS, RIGHTS, AND

LIABILITIES.

114 (111.) Held to secure only payment of annuity. Patterson v. Vermilion Academy, 14465 (Ohio) Power of Legislature to require approve school building plans not abridged.— municipal building inspection department to Niehaus v. State, 144 N. E. 433.

116 (Mass.) Indebtedness other than note held secured, and accommodation indorser could not complain of application of foreclosure proceeds on other indebtedness.-Exchange Trust Co. v. Hitchcock, 144 N. E. 373.

(C) Property Mortgaged, and Estates of Parties Therein.

137 (Ind.App.) Mortgagee in possession before foreclosure held to hold legal title as trustee for mortgagor.-Wise v. Layman, 144 N. E. 564.

(D) Lien and Priority.

151 (3) (Ind.App.) Laborer's lien for wages superior to that of mortgagee.-Pierce v. Blair, 144 N. E. 842.

IV. RIGHTS AND LIABILITIES OF
PARTIES.

IV. PROCEEDINGS OF COUNCIL OR OTHER GOVERNING BODY. (B) Ordinances and By-Laws in General. certain beverages not to be denied because 111(4) (I.) Power to regulate sale of of Chicago v. Murphy, 144 N. E. 802. other articles are included in ordinance.-City

V. OFFICERS, AGENTS, AND EMPLOYÉS. (A) Municipal Officers in General.

24(3) (Ind.) Legislature may create municipal offices and fix qualifications.-Connell v. State, 144 N. E. 882.

138 (Ind.) Citizenship not essential qualiN. E. 882. fication of councilman.-Connell v. State, 144

149 (Ohio) Appointment to vacancy in vilN. E. 264. lage council held valid.-State v. Larsen, 144

194 (Ind.App.) Mortgagee in possession before foreclosure bound to protect mortgagor's interest.-Wise v. Layman, 144 N. E. 564. Duties of mortgagee in possession stated. -Id. 199(1) (Mass.) Second mortgage held para- invested with judicial powers of absent mayor. 168 (Ohio) President pro tem. of council mount to lease.-Burke v. Willard, 144 Ñ. E.-State v. Lanser, 144 N. E. 734.

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Where tenant refused to pay rent to mortgagee taking possession, leasehold terminated. -Id.

Action in tort held maintainable against tenant for mesne profits after mortgagee took possession.-Id.

(B) Municipal Departments and Officers Thereof.

of uniform may show him unfit.-Coolidge v. 185(1) (Mass.) Conduct of policeman out Bruce, 144 N. E. 397.

185(3) (Mass.) Charge of unbecoming conidge v. Bruce, 144 N. E. 397. duct of policeman held not too remote.-Cool

199(3) (Ind.App.) Mortgagee in sion, failing to account for rents, liable for possesreasonable rental value.-Wise v. Layman, 144 185(7) (Mass.) Charges against police ofN. E. 564.

X. FORECLOSURE BY ACTION. (L) Disposition of Proceeds and Surplus. 567(1) (Ind.App.) Rights of owner, taking property subject to mortgage, inferior to those of trustee for bondholders under mortgage.-Pierce v. Blair, 144 N. E. 842.

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ficer not construed with strictness on review.Coolidge v. Bruce, 144 N. E. 397.

ficer should be fairly conducted.-Coolidge v. 185(8) (Mass.) Hearing for removal of ofBruce, 144 N. E. 397.

185(11) (Mass.) Decision of mayor removng officer held not to show removal based on reasons not charged.-Coolidge v. Bruce, 144 N. E. 397.

185(12) (Mass.) Statute held not to prolice officer.-Coolidge v. Bruce, 144 N. E. 397. vide for new trial on review of removal of po

VII. CONTRACTS IN GENERAL. 255 (Ohio) Excessive payments by city for advertisements recoverable.-City of Cleveland v. Legal News Pub. Co., 144 N. E. 256.

For cases in Dec.Dig. & Am. Dig. Key-No!Series & Indexes see same topic and KEY-NUMBER

IX. PUBLIC IMPROVEMENTS. (E) Assessments for Benefits, and Special

Taxes.

434(6) (N.Y.) Railroad property exempt from assessments.-New York Cent. & H. R. R. Co. v. City of Yonkers, 144 N. E. 490. Railroad property held subject to assessment. -Id.

513(3) (N.Y.) Railroad held to have lost right to question assessment by failure to proceed under statute.-New York Cent. & H. R. R. Co. v. City of Yonkers, 144 N. E. 490. X. POLICE POWER AND REGULATIONS. (A) Delegation, Extent, and Exercise of Power.

592(1) (Ohio) Municipality may not thwart state law requiring approval of school building plans by requiring fee.-Niehaus v. State, 144 N. E. 433.

625 (III.) Regulatory ordinances must be reasonable.-City of Chicago v. Kautz, 144 N. E. 805.

822 (2) (Ohio) Instruction defining ordinary care as that which similar municipal officers exercised under similar circumstances held error.-Jones v. Village of Girard, 144 N. E.

847.

(D) Defects or Obstructions in Sewers,
Drains, and Water Courses.

ble for damages through inadequacy of plan of
831(1) (Mass.) Municipality not responsi-
sewer system.-Pevear v. City of Lynn, 144 N.
E. 379.
832 (Mass.) Municipality's responsibility
for damages by inadequacy of sewers.-Pevear
v. City of Lynn, 144 N. E. 379.

845 (4) (Mass.) Finding sewer plans did not warrant unrestrained flow of surface water warranted.-Pevear v. City of Lynn, 144 N. E. 379.

XIII. FISCAL MANAGEMENT, PUBLIC
DEBT, SECURITIES, AND TAXATION.
(A) Power to Incur Indebtedness and Ex-

penditures.

Regulatory ordinance void if arbitrary.-Id. 865(1) (Ind.) Debts of corporations covOrdinance regulating weighing of coal, heldering same territory not aggregated, in determining borrowing capacity of one.-Follett v. Sheldon, 144 N. E. 867.

invalid.-Id.

(B) Violations and Enforcement of Regu

lations.

633(2) (Ind.) Suit for penalty for violation of ordinance civil action.-Seibert v. City of Evansville, 144 N. E. 841.

XI. USE AND REGULATION OF PUBLIC PLACES, PROPERTY, AND WORKS. (A) Streets and Other Public Ways. 705 (2) (N.Y.) Rights of way of vehicles at street intersection under ordinance.-Goldman v. Stern Bros., 144 N. E. 494.

706(1) (Ind.) Complaint held not to show contributory negligence of bicycle rider.-Fame Laundry Co. of Indiana v. Henry, 144 N. E. 545.

706(3) (Mass.) Skidding of truck, alone, no evidence of negligence.-Lonergan v. American Railway Express Co., 144 N. E. 756. Occurrence of accident on public way not evidence of negligence.-Id.

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706(3) (N.Y.) Burden of issue of contribu- 6 (Mass.) Initials do not constitute name. tory negligence on -Volpe v. Sensatini, 144 N. E. 104. defense.-Cooperstein v.

Eden Brick & Supply Co., 144 N. E. 501.

706(6) (Mass.) Negligence in operating

NATIONAL BANKS.

truck held for jury.-Quinn v. Standard Oil Co. See Banks and Banking, 237. of New York, 144 N. E. 53.

706(6) (Mass.) Negligence of truck driver striking pedestrians on sidewalk held for jury. -Lonergan v. American Railway Express Co., 144 N. E. 756.

Negligence as to inspection of truck steering gear held for jury.-Id.

706 (7) (N.Y.) Contributory negligence of pedestrian killed by truck held for jury.-Cooperstein v. Eden Brick & Supply Co., 144 N. E. 501.

(C) Public Buildings, Parks, and Other Public Places and Property.

721(1) (III.) Municipality cannot appropriate public park to erection of buildings.Melin v. Community Consol. School Dist. No. 76, 144 N. E. 13.

XII. TORTS.

NAVIGABLE WATERS.

I. RIGHTS OF PUBLIC.

1(2) (Ind.) Legislative acts held not to make river navigable stream so that bed did not vest in riparian owners.-Seymour Water Co. v. Lebline, 144 N. E. 30.

NEGLIGENCE.

See Master and Servant. 329-332; Municipal Corporations, 809–845; Railroads, 330-482; Street Railroads, 81-110.

I. ACTS OR OMISSIONS CONSTITUTING
NEGLIGENCE.

(C) Condition and Use of Land, Buildings, and Other Structures. C32(1) (Ohio) Ordinary care required as to (C) Defects or Obstructions in Streets licensee.-Union News Co. v. Freeborn, 144 N. and Other Public Ways. E. 595.

809 (2) (Ohio) Contractor not using reasonable care in leaving dump wagon in street as barricade held liable for injuries to child.-De Groodt v. Skrbina, 144 N. E. 601.

818(2) (Ohio) Evidence of like or greater depressions in sidewalks of other municipalities held prejudicial.-Jones v. Village of Girard, 144 N. E. 847.

822 (2) (Ind.App.) Instruction on care of street held not misleading.-City of Jasonville v. Griggs, 144 N. E. 560.

52 (Ohio) Injury to licensee not warned of dangerous condition of slippery floor held actionable.-Union News Co. v. Freeborn, 144 N.

E. 595.

III. CONTRIBUTORY NEGLIGENCE. (A) Persons Injured in General. 67 (Mass.) Contributory negligence not excused by being put in position of sudden peril.-Fitzpatrick v. Boston Elevated Ry. Co., 144 N. E. 75.

(B) Children and Others Under Disability.

NOTES.

85 (3) (Ind.App.) Contributory negligence See Bills and Notes. not imputable to child of tender years.-Terre Haute, Indianapolis & Eastern Traction Co. v. McDermott, 144 N. E. 620.

(C) Imputed Negligence. 93(1) (Ind.App.) Instruction on imputed negligence held not erroneous.-City of Jasonville v. Griggs, 144 N. E. 560.

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NOTICE.

6 (Ind.App.) Possession of owner's brother presumed possession of owner.-Bastin v. Myers, 144 N. E. 425.

Possession of real estate is equivalent to constructive notice by record.-Id.

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TENURE.

5(2) (Ohio) City cannot agree to pay more than statutory rate for advertisements.-City (G) Resignation, Suspension, or Removal. of Cleveland v. Legal News Pub. Co., 144 N. 61 (Ohio) Statute authorizing Governor to E. 256. remove officers in classified service held valid.

62 (Mass.) Statute requiring newspaper-State v. Donahey, 144 N. E. 125. to publish findings of minimum wage commission unconstitutional.-Commonwealth v. Boston Transcript Co., 144 N. E. 400.

Statute requiring publication of proceedings of minimum wage commission not valid as amendment to charter.-Id.

Reasonable regulations authorized.-Id.

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(A) Errors and Irregularities in General.

26 (Mass.) Party cannot as matter of right first raise question of law on motion for new trial.-Lonergan v. American Railway Express Co., 144 N. E. 756.

III. RIGHTS, POWERS, DUTIES, AND
LIABILITIES.

103 (Ind.) Officers cannot be given arbitrary discretion as to permitting act otherwise lawful.-State v. Douglas, 144 N. E. 548.

PARDON.

4 (Ind.) Supreme Court after affirming death sentence and denying rehearing without jurisdiction to stay execution for insanity arising after verdict.-Diamond v. State, 144 N. E. 250. PARENT AND CHILD.

See Infants.

PARTIES.

For parties on appeal and review of rulings as to parties, see Appeal and Error.

For parties to particular proceedings or instruments, see also the various specific topics.

PARTITION.

II. ACTIONS FOR PARTITION.
(B) Proceedings and Relief.

Express company could not for first time 73 (N.Y.) Judgment authorizing sale of on motion for new trial claim nonliability on ground it was under federal control.-Iď.

(C) Rulings and Instructions at Trial. 40(3) (Mass.) Question whether verdict should have been directed held not one of jurisdiction of court.-Lonergan v. American Railway Express Co., 144 N. E. 756.

(F) Verdict or Findings Contrary to Law or Evidence.

75(1) (Ind.App.) Refusal to grant on grounds not mentioned in statute proper.-Old Reliable Paint Co. v. Storey, 144 N. E. 562. 76(1) (Ind.App.) New trial because recovery excessive unwarranted, where any evidence sustains recovery.-Old Reliable Paint Co. v. Storey, 144 N. E. 562.

III. PROCEEDINGS TO PROCURE NEW
TRIAL.

151 (Ind.App.) Successful party may file counter affidavits to motion for new trial for newly discovered evidence.-Miller v. Johnson, 144 N. E. 37.

property subject to option construed.-McLear v. Balmat, 144 N. E. 914.

113 (Mass.) Judge's finding in action for partition open to review.-Howard v. Smith, 144 N. E. 372.

PARTNERSHIP.

IV. RIGHTS AND LIABILITIES AS TO THIRD PERSONS. (A) Representation of Firm by Partner. 159 (Mass.) Partners chargeable with knowledge of copartner.-Boston Box Co. v. Shapiro, 144 N. EÈ. 233..

PAYMENT.

II. APPLICATION.

38(1) (III.) Rule as to right of debtor to direct application of payments.-Chicago Title & Trust Co. v. Central Trust Co. of Illinois, 144 N. E. 165.

39(1) (III.) Rule as to application of payments.-Chicago Title & Trust Co. v. Central Trust Co. of Illinois, 144 N. E. 165.

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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

39(5) (III.) Deposit properly applied to
oldest note by receiver of bank.-Chicago Title
& Trust Co. v. Central Trust Co. of Illinois,
144 N. E. 165.

IV. PLEADING, EVIDENCE, TRIAL, AND
REVIEW.

~~65 (1) (III.) Note presumed paid by parties
primarily liable.-Chicago Title & Trust Co. v.
Central Trust Co. of Illinois, 144 N. E. 165.

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VI. AMENDED AND SUPPLEMENTAL
PLEADINGS AND REPLEADER.

237 (3) (Ind.App.) Permitting amendment
of complaint during trial as to designation of
train not error.-Pittsburgh, C., C. & St. L. R.
Co. v. Cook, 144 N. E. 478.

IX. BILL OF PARTICULARS AND COPY OF

ACCOUNT.

316 (Mass.) Court may refuse to order
specifications on petition alleging living apart
from husband. for justifiable cause.-Gerrish v.
Gerrish, 144 N. E. 235.

XI. MOTIONS.

352 (Ind.App.) Appropriate method in at-
tacking complaint for indefiniteness is by mo-
tion to strike out.-Risley v. Rumble, 144 N.
E. 568.

364(1) (Ind.App.) Refusal to strike mate-
rial allegations which were not impertinent or
scandalous held proper.-Jones v. Roshenber-
ger, 144 N. E. 858.

For pleadings in particular actions or proceed-367(1) (Ind.) Remedy to confine effect of
ings, see also the various specific topics.
For review of rulings relating to pleadings, see
Appeal and Error.

I. FORM AND ALLEGATIONS IN GENERAL.
35 (111) Surplusage not ground for demur-
rer.-People v. Jacobs, 144 N. E. 349.

II. DECLARATION, COMPLAINT,
TION, OR STATEMENT.

PETI-

49 (Ohio) Where relief sought may be
predicated on one or more grounds, pleader
need not classify operative facts under sucn
grounds.-Arnold v. Arnold, 144 N. E. 261.

63 (Ind.App.) Party claiming statutory
right must bring himself within statute.-Jelic-
ic v. Vermillion Coal Co., 144 N. E. 38.

III.

PLEA OR ANSWER, CROSS-COM-
PLAINT, AND AFFIDAVIT OF

DEFENSE.

(A) Defenses in General.
99 (I.) Plea held not bad for
People v. Jacobs, 144 N. E. 349.

general averments to particular facts also
stated is by motion to make specific.-Seymour
Water Co. v. Lebline, 144 N. E. 30.

367(1) (Ind.App.) Appropriate method in
attacking complaint for indefiniteness is by mo-
tion to strike out and not motion to make more
specific.-Risley v. Rumble. 144 N. E. 568.

367(1) (Ind.App.) When motion to make
complaint more definite allowed.-Terre Haute,
Indianapolis & Eastern Traction Co. v. McDer-
mott, 144 N. E. 620.

367 (6), (Ind.) Refusal to require abstract
of title held not abuse of discretion.-Seymour
Water Co. v. Lebline, 144 N. E. 30.

XIII. DEFECTS AND OBJECTIONS, WAIV-
ER, AND AIDER BY VERDICT
OR JUDGMENT.

406(5) (Ind.) General averment of ad-
verse possession held good in absence of motion
to make specific.-Seymour Water Co. v. Leb-
line, 144 N. E. 30.

duplicity.-409(1) (Ind.) Objection to answer waived.
-St. Vincent's Hospital v. Stine, 144 N. E. 537.
430(2) (Mass.) Recovery proper for re-
pairing elevator, though installation of elevator
alleged. See v. Nesson, 144 N. E. 238.

(C) Traverses or Denials and Admissions.

129(2) (Mass.) Descriptive allegations of
writ respecting defendant were admitted by
general appearance.-Lonergan v. American
Railway Express Co., 144 N. E. 756.

IV. REPLICATION OR REPLY AND SUBSE-
QUENT PLEADINGS.

176 (Ohio) Reply denying receipt of mon-
ey in judicial sale held demurrable.-Judy v.
Trollinger, 144 N. E. 44.

V. DEMURRER OR EXCEPTION.

POLICE POWER.

See Constitutional Law, 81; Municipal
Corporations, 592-633.

PRACTICE.

For practice in particular actions and proceed-
ings, see the various specific topics.

PRESCRIPTION.

194(5) (Ind.) Overruling demurrer to ar- See Adverse Possession; Limitation of Actions.
gumentative denial not error.-Seymour Water

Co. v. Lebline, 144 N. E. 30.

201 (Ind.App.) Memorandum to demurrer

PRINCIPAL AND AGENT.

held too definite to present question of in- See Attorney and Client; Brokers.
sufficiency of contracts sued on under statute

of frauds.-Indianapolis Abattoir Co. v. Penn II. MUTUAL RIGHTS, DUTIES, AND LIA-
Beef Co., 144 N. E. 573.

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216(1)(Ind.) Rule stated as to effect of
(B) Compensation and Lien of Agent.
denial of motion to make more specific on mat-89(5) (Ind.App.) General denial putting in
ters considered on subsequent demurrer.-En- issue validity of contract insufficient to present
terprise Printing & Publishing Co. v. Craig, defense of dual agency.-H. H. Woodsmall, Inc.,
144 N. E. 542.
v. Steele, 144 N. E. 620.

144 N.E.-61

III. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.

(A) Powers of Agent.
107(2) (Mass.) Authority of agent to bor-
row money for principal stated.-Forgeron v.
Corey Hill Garage, 144 N. E. 383.

109(1) (Mass.) Authority of agent to ex-
ecute notes for principal stated.-Forgeron v.
Corey Hill Garage, 144 N. E. 383.

(B) Undisclosed Agency.
145(2) (Mass.) Suit may be maintained
against undisclosed principal.-See v. Nesson,
144 N. E. 238.

(C) Unauthorized and Wrongful Acts.
148(4) (Mass.) Agent of limited powers
cannot stretch them to include subjects not
within apparent scope.-American Ry. Express
Co. v. Mohawk Dairy Co., 144 N. E. 721.

(E) Notice to Agent.

181 (Mass.) Knowledge of employee of
bis own forgery not imputed to depositor.-
Grow v. Prudential Trust Co., 144 N. E. 93.

PRINCIPAL AND SURETY.

See Guaranty; Indemnity.

IV. REMEDIES OF CREDITORS.

162(2) (Mass.) On directing verdict for
penal sum of bond, proper to also direct assess-
ment of damages.-Brown v. London & Lanca-
shire Indemnity Co. of America, 144 N. E. 395.
PROCESS.

II. SERVICE.

(A) Personal Service in General.

7 (Ind.App.) Owner of land owns whatever
lies beneath surface.-Risley v. Rumble, 144 N.
E. 568.

PUBLIC IMPROVEMENTS.

See Municipal Corporations, 434-513.

PUBLIC SERVICE COMMISSIONS.

7 (Ohio) On question whether rate_will
yield reasonable return, Public Utilities Com-
mission required to ascertain and report val-
ue.-Lindsey v. Public Utilities Commission of
Ohio, 144 N. E. 729.

Public Utilities Commission has discretion
whether to report value in greater detail than
to show facts required by statute.-Id.

Failure of Public Utilities Commission to
report value in detail not abuse of discretion.
-Îd.
Public Utilities Commission may avail itself
of services of engineers in determining value.
-Id.

15 (Ohio) Reports of engineers and assist-
ants become evidence analyzed and impeached
as other evidence.-Lindsey v. Public Utilities
Commission of Ohio, 144 N. E. 729.

192 [New, vol. 12A Key-No. Series]
(Ind.) Petition for rehearing prerequi-
site to suit to vacate order of Public Service
Commission does not lie.-McCardle v. Board

of Com'rs of Marion County, 144 N. E. 877.
31 (Ohio) When evidence before Public
Utilities Commission not in record, Supreme
Court cannot review question of fact.-Lind-
sey v. Public Utilities Commission of Ohio, 144

N. E. 729.

32 (Ind.) Circuit court cannot grant af-
firmative relief on review of order of Public
Service Commission.-McCardle v. Board of

51 (Ind.App.) Statutes regulating service Com'rs of Marion County, 144 N. E. 877.
must be strictly pursued.-Bastin v. Myers, 144
N. E. 425.

(B) Substituted Service.

83 (Ind.App.) Statutes providing for per-
sonal service out of state must be strictly pur-
sued.-Bastin v. Myers, 144 N. E. 425.

PUBLIC SERVICE CORPORATIONS.
See Carriers; Railroads; Street Railroads;
Telegraphs and Telephones.

QUIETING TITLE.

I. RIGHT OF ACTION AND DEFENSES.
7(2) (Mass.) Recorded agreement of sale
held cloud on title.-Flaherty v. Goldinger, 144
E. 374.

(C) Publication or Other Notice.
84 (Ind.App.) Statute providing for serv-
ice by publication must be strictly pursued.-N.
Bastin v. Myers, 144 N. E. 425.

85 (Mass.) Statute permitting service of
process against nonresident motorist by mail-
ing and delivery to registrar held constitution-
al.-Pawloski v. Hess, 144 N. E. 760.

PROHIBITION.

See Intoxicating Liquors.

1. NATURE AND GROUNDS.

4 (N.Y.) Issuance of writ discretionary.-
People ex rel. Cuvillier v. Hagarty, 144 N. E.
917.

10(2) (Ind.) Court's attempted appoint-
ment of receiver without jurisdiction held to
present case for writ.-State v. Superior Court
of Marion County, 144 N. E. 747.

II. JURISDICTION, PROCEEDINGS, AND

RELIEF.

34 (N.Y.) Appeal lies only when order or
opinion shows application was denied as matter
of law. People ex rel. Cuvillier v. Hagarty,
144 N. E. 917.

PROMISSORY NOTES.

See Bills and Notes.

PROPERTY.

(II.) "Property" defined.-Shedd v. Pat-
terson, 144 N. E. 5.

4 (N.Y.) Maxim quiquid plantatur solo,
solo cedit subject to exceptions.-New York,
O. & W. R. Co. v. Livingston, 144 N. E. 589.

15 (Mass.) That seller failed to carry out
agreement no defense to action to remove
cloud on title.-Flaherty v. Goldinger, 144 N.
E. 374.

II. PROCEEDINGS AND RELIEF.

35(2) (Ind.App.) Complaint not alleging
specific defect in title held insufficient.-Bastin
v. Myers, 144 N. E. 425.

QUO WARRANTO.

II. JURISDICTION, PROCEEDINGS, AND

RELIEF.

50 (2) (III.) Plea must allege all conditions
precedent to defendant's right to exercise of-
fice.-People v. Jacobs, 144 N. E. 349.

RAILROADS.

See Street Railroads.

I. CONTROL AND REGULATION IN
GENERAL.

52 [New, vol. 6A Key-No. Series]

(Mass.) Director General of Railroads
suable for torts of express company under
federal control.-Lonergan v. American Rail-
way Express Co., 144 N. E. 756.

Express company under federal control may
waive defense Director General was liable for
tort.-Id.

Superior court had jurisdiction of action
against express company for tort during fed-
eral control.-Id.

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