3 (Ohio) Act as to inheritance by step

See Discovery; Injunction; Partition; Quiet- children held not to relate to personal property. ing Title; Specific Performance; Subroga-Center v. Kramer, 147 N. E. 602. tion; Trusts.

I. JURISDICTION. PRINCIPLES, AND

MAXIMS.

(C) Principles and Maxims of Equity. 56 (Mass.) Equity looks through form to substance of transactions.-Greco v. Hubbard, 147 N. E. 272.

66 (III.) Maxim held not applicable to one seeking to remove cloud from title.-Evans v. Chicago Title & Trust Co., 147 N. E. 412.

II. LACHES AND STALE DEMANDS. ~~~71(1) (III.) Mere lapse of time no bar where excuse given rendering interposition of bar inequitable.-Jones v. Jenkinson, 147 N. E.

128.

87(1) (11.) Court of equity will refer to statute fixing time for. bar of claim in ascertaining time bar will be complete in equity.Jones v. Jenkinson, 147 N. E. 128.

Personal property of intestate leaving only stepchildren held to vest in state under statute. -Id.

ESTATES.

See Descent and Distribution; Dower; Executors and Administrators; Life Estates; Perpetuities; Reversions; Tenancy in Common; Wills.

ESTOPPEL.

III. EQUITABLE ESTOPPEL. (A) Nature and Essentials in General.

52 (III.) "Waiver" is relinquishment of known right and legal defense.-First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 147 N. E. 53.

"Estoppel in pais" defined.—Id.

54 (Ind.App.) Want of knowledge on part of one who relies thereon required to constitute.-Franklin Bank of St. Louis, Mo., v. Boeckeler Lumber Co., 147 N. E. 722.

(B) Grounds of Estoppel.

III. PARTIES AND PROCESS. 114 (111.) One cannot intervene in suit without leave of court in which suit is pending.63 (Mass.) Railroad held not estopped to -Kneisel v. Ursus Motor Co., 147 N. E. 243.

117 (III.) Objection to want of proper parties, whose rights will be materially affected by final decree, may be taken at hearing.-Weeden v. Gher, 147 N. E. 388.

IV. PLEADING.

(C) Cross-Bill and Plea and Answer

Thereto.

claim easement in street and require removal of obstruction.-Boston & A. R. Co. v. Freedman, 147 N. E. 848.

74(2) (III.) Owner placing property in wife's name estopped to deny that it was subject to her trust deed.-Macaulay v. Dorian, 147 N. E. 793.

75 (Ind.App.) Seller held not estopped to claim proceeds of buyer's resale by sending in195 (Mass.) Function of "cross-bill" is to Mo., v. Boeckeler Lumber Co., 147 N. E. 722. voice to buyer.-Franklin Bank of St. Louis, secure affirmative relief, which cannot be ad-93(1) (Mass.) Lessor, silently permitting ministered under answer to original bill.-Smith installation of bowling alleys purchased on conv. Weeks, 147 N. E. 676.

ditional contract, held estopped to assert title.

(E) Demurrer, Exceptions, and Motions.-J. H. Gerlach Co. v. Noyes, 147 N. E. 24.

247 (Mass.) Trial court held unauthorized to make permission to amend bill conditional on payment of counsel fees.-Fuller v. Trustees of Deerfield Academy and Dickinson High School,

147 N. E. 878.

(F) Amended and Supplemental Pleadings and Revivor.

267 (Mass.) Whether motion to amend bill

should have been allowed rested in discretion to

be considered on merits apart from terms imposed.-Fuller v. Trustees of Deerfield Academy and Dickinson High School, 147 N. E. 878.

281 (III.) Court held to have properly denied leave to file amended answers where cause completely tried on other issues.-Jones v. Jenkinson, 147 N. E. 128.

IX. MASTERS AND COMMISSIONERS, AND

PROCEEDINGS BEFORE THEM.

409 (Mass.) Where facts documentary or are in master's report, court may draw additional inferences of fact.-Anagnosti v. Almy, 147 N. E. 854.

412 (Mass.) Motion to recommit to master is discretionary.-Anagnosti v. Almy, 147 N. E. 854.

X. DECREE AND ENFORCEMENT
THEREOF.

427(1) (III.) Decree not authorized by allegation of bill cannot stand.-Feeney v. Runyan, 147 N. E. 114.

Conditional seller of bowling alleys to lessees held not negligent for failure to ascertain terms of lease.-Id.

95 (Mass.) Mere passivity or silent standing by, in hearing of declaration of fact, will not work estoppel, in absence of duty to speak. -J. H. Gerlach Co. v. Nayes, 147 N. E. 24.

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

5(1) (11.) Matter must be commonly and generally known, in order that judicial notice will be taken thereof.-Sproul v. Springman, 147

N. E. 131.

II. PRESUMPTIONS.

65 (Ind.) Administrative officers chargeable with notice of legislation affecting their activities. State v. Holmes, 147 N. E. 622.

71 (III.) Proof of mailing notice of election to purchase held prima facie evidence of its receipt in due course of mail.-Keogh v. Peck, 147 N. E. 266.

10(2) (Ind.App.) Judicial notice of exact limits and boundaries of cities and towns not taken.-Halstead v. City of Brazil, 147 N. E. 629. 10(3) (11.) Court cannot take judicial no-75 (I.) No presumption against employer tice that Fifty-Ninth and Wallace streets in because it objected to incompetent evidence or Chicago.-Rost v. F. H. Noble & Co., 147 N. failed to introduce it.-Rost v. F. H. Noble & E. 258. Co., 147 N. E. 258.

10(5) (III.) Court cannot take judicial notice that Kaskaskia river is navigable stream.Sproul v. Springman, 147 N. E. 131.

IV. RELEVANCY, MATERIALITY, AND
COMPETENCY IN GENERAL.

14 (Mass.) It is common knowledge that (A) Facts in Issue and Relevant to Issues. movement of motor vehicle is, or may easily 113(11) (Ind.) Owner's profits held incombecome, danger to all others on highways.-In petent as proof of market value of property re Opinion of the Justices, 147 N. E. 681. taken in condemnation proceedings.-Illinois Cent. R. Co. v. Howard, 147 N. E. 142. (B) Res Gestæ.

18 (111) Common knowledge that coal mining company's capital is depleted to value of all coal mined, and that equipment depreciates.Neeson v. Sangamon County Mining Co., 147121(1) (Ind.App.) Whether declaration is N. E. 369. determining is controlling in whether it is res gesta.-Lake Erie & W. R. Co. v. Scott, 147 N. E. 315.

20(2) (III.) Court takes judicial notice of time required for letter mailed in Chicago to be delivered in Philadelphia.-Keogh v. Peck, 147 N. E. 266.

20 (2) (Mass.) It is common knowledge that government during federal control managed railroads through same officers and agents employed by corporations.-Phillips v. Davis, 147 N. E. 96.

spontaneous

125 (Ind.App.) Decedent's declaration held inadmissible as res gestæ.-Lake Erie & W. R. Co. v. Scott, 147 N. E. 315.

1282 (Ind.App.) Admissibility of res gestæ declarations is for court.-Lake Erie & W. R. Co. v. Scott, 147 N. E. 315.

(C) Similar Facts and Transactions.

22(2) (N.Y.) Common knowledge that Bar Association of New York City has done valu-142(1) (Ind.) Price paid for other lands able work in maintaining ethical standards of similarly situated competent on question of value of lands taken in condemnation proceedings. legal profession. In re Dolphin, 147 N. E. 538. Illinois Cent. R. Co. v. Howard, 147 N. E. 142. 28 (N.Y.) Common knowledge that restric-142(1) (Mass.) Evidence as to sales of retions on use of park roads different from those mainder of property subsequent to taking, imposed on use of city streets.-Commissioners competent on issue of value of property taken. of Palisades Interstate Park v. Lent, 147 N. E. -Bartlett v. City of Medford, 147 N. E. 739. 228.

33 (Ind.) Courts take judicial notice of legislative enactments and of their approval or disapproval by Governor.-State v. Holmes, 147

N. E. 622.

142(1) (N.Y.) As bearing on value of land condemned evidence of sales of neighboring land with riparian rights might have been received, but exclusion not erroneous.-In re West 205th St. in City of New York, 147 N. E. 361. (E) Competency.

41 (Ind.) Supreme Court will take judicial knowledge that there existed a court of coordinate jurisdiction with the trial court in par-148 (III.) That conversation was over teleticular matter.-Fletcher Savings & Trust Co. phone held not to render it inadmissible.-Gates v. American State Bank of Lawrenceburg, 147 v. Mader, 147 N. E. 241. N. E. 524.

43 (3) (Ind.) Receivers' action held distinct proceeding from that of the receivership and not such as court in receivership proceeding could take judicial notice of.-Fletcher Savings & Trust Co. v. American State Bank of Lawrenceburg, 147 N. E. 524.

148 (Mass.) Evidence of conversation with unknown person purporting to represent defendant held inadmissible in action for breach of guaranty.-Morrison v. Tremont Trust Co., 147 N. E. 870.

VI. DEMONSTRATIVE EVIDENCE. Procedure, suit, or action will not be subject 194 (Ind.) Sample of sugar taken from to judicial knowledge without its formal intro- bag in doorway of car held properly excluded.duction in evidence.-Id. Piggly-Wiggly Stores v. Lowenstein, 147 N. E. 771. VII. ADMISSIONS.

As general rule, court will not take judicial notice of its own records in a distinct case.-Id.

(A) Nature, Form, and Incidents in General.

44 (Ind.) Judicially known that township trustee has charge of many public records which are matters of public concern.-Marion 213(1) (III.) Testimony as to owner's exTp. of Boone County v. Howard, 147 N. E. pression of willingness to pay greater part of 619; Jackson Tp. of Boone County v. Bow-contractor's additional bill held properly man, 147 N. E. 621. ceived as admission.-Smith v. Gray, 147 N. E.

45 (Ind.) Common knowledge that election 459. commissioners are often required to exercise discretion.-State v. Holmes, 147 N. E. 622.

re

(D) By Agents or Other Representatives. 46 (Ind.) Court judicially knows that Gov-244 (7) (Mass.) Conversation had by plainernor in due course will publish his proclama- tiff with employee of correspondent of defendtion relative to taking effect of laws.-State v. ant trust company held inadmissible as not bindHolmes, 147 N. E. 622. ing on defendant. Morrison v. Tremont Trust Co., 147 N. E. 870.

46 (Mass.) Court's refusal to take judicial notice of proclamations of president held error, 244(9) (Mass.) Complaint filed by motorthough harmless.-Phillips v. Davis, 147 N. E. man held inadmissible as admission.-Topping v. Eastern Massachusetts St. Ry. Co., 147 N. E. 96. 882.

48 (111) Judicial notice not taken as to time within which school district boards can prepare and certify district budgets to county superintendent.-Board of Education of School Dist. No. 41 v. Morgan, 147 N. E. 34.

(E) Proof and Effect.

shown.-Piggly Wiggly Stores v. Lowenstein, | Cosmopolitan Trust Co. of Boston, 147 N. E. 147 N. E. 771.

VIII. DECLARATIONS.

(A) Nature, Form, and Incidents in Gen

eral.

742.

434(8) (Mass.) Fraud entering into making of contract not excluded from reach of law by phrase inserted.-Butler v. Prussian, 147 N. E. 892.

stance of contract.-Id.

Parties cannot by written words prevent in271(18) (Ind.App.) Admission of self-serving statement in action against carrier for de- quiry and redress for fraud entering into sublay in shipment held reversible error.-Ross v. 434(11) (Mass.) Evidence to identify subFear-Campbell Co., 147 N. E. 720. 271(19) (Mass.) Letters written by plain-ject-matter of contract rightly admitted; it betiff held inadmissible as self-serving.-Morrison ing a step in proving fraud.-Butler v. Prussian, 147 N. E. 892. v. Tremont Trust Co., 147 N. E. 870.

271(19) (N.Y.) Sellers' letter arraigning 434 (14) (Mass.) Passbook may be impeachbuyer's conduct in rejecting goods held inadmis-ed on ground of fraud.-Wasserman v. Cosmosible in sellers' favor.-Henry Glass & Co. v. politan Trust Co. of Boston, 147 N. E. 742. Misroch, 147 N. E. 71.

X. DOCUMENTARY EVIDENCE. (A) Public or Official Acts, Proceedings, Records, and Certificates.

(C) Separate or Subsequent Oral Agreement.

441(1) (Ind.App.) Written agreement cannot be contradicted or varied by prior or contemporaneous parol agreements.-Friedman v. 333 (6) (III.) School record held incompe- Citizens' Natural Gas, Oil & Water Co., 147 N. tent to show deceased minor employee's age-441(1) (Mass.) Express written contract Rost v. F. H. Noble & Co., 147 N. E. 258. (C) Private Writings and Publications.

352(1) (11.) Corporation's books and documents held competent to impeach verity of its statements to secretary of state and in its circular.-McRoberts v. Combination Fountain Co., 147 N. E. 785.

(D) Production, Authentication, and Ef

fect.

E. 294.

not enlarged by oral evidence concerning previous or contemporaneous discussion.-Beacon Tool & Machine Co. v. National Products Mfg. Co., 147 N. E. 572.

441 (9) (Mass.) Parol evidence of agreement made at time of written order for flour held admissible.-Welch v. Bombardieri, 147 N.

E. 595.

(D) Construction or Application of Language of Written Instrument. 378(3) (Mass.) Telegram, alleged to con- 448 (Mass.) Parol evidence rule does not stitute guaranty contract, held inadmissible, in apply, where language used is ambiguous.absence of showing of agent's authority to sign Welch v. Bombardieri, 147 N. E. 595. and send.-Morrison v. Tremont Trust Co., 147460 (2) (Mass.) Parol evidence is compeN. E. 870. tent to apply written contract to subject-matter.-Butler v. Prussian, 147 N. E. 892.

383 (7) (III.) Letter written by client referring to attorneys' letter stating terms for legal services held not entitled to greater weight than client's testimony.-Lyon v. Oliver, 147 N. | E. 251.

XI. PAROL OR EXTRINSIC EVIDENCE AF.
FECTING WRITINGS.

(A) Contradicting, Varying, or Adding to
Terms of Written Instrument.
390(1) (Ind.App.) Evidence tending to
vary or contradict legal effect of partition deeds
properly excluded.-Van Blaricum v. Kerkhoff,
147 N. E. 633.

397 (1) (Mass.) Before parol evidence rule applicable, court must be sure it has before it written contract.-Welch v. Bombardieri, 147 N. E. 595.

397 (2) (Mass.) Writing presumed to express final arrangements, and oral evidence inadmissible to contradict or modify written contract.-Butler v. Prussian, 147 N. E. 892.

400 (3) (Mass.) Written confirmation of purchase held not written contract, within rule precluding receipt of parol evidence.-Ehrlich v. United Smelting & Aluminum Co., 147 N.

E. 20.

402 (Mass.) Time certificate of deposit cannot be transformed by parol evidence into a different contract of deposit.-Wasserman Cosmopolitan Trust Co. of Boston, 147 N. E.

742.

V.

419(1) (Ind.App.) Parol evidence rule applies to stipulation as to consideration in contract complete on its face.-Friedman v. Citizens' Natural Gas, Oil & Water Co., 147 N.

XII. OPINION EVIDENCE.

(A) Conclusions and Opinions of

nesses in General.

Wit

470 (III.) Witness may state opinion of condition impossible to reproduce by description.-Rost v. F. H. Noble & Co., 147 N. È. 258.

471 (10) (III.) Exclusion of evidence whether it was physically possible for plaintiff's witness to see deceased as testified held error. Rost v. F. H. Noble & Co., 147 N. E. 258.

495 (III.) Where damages difficult or impossible to ascertain exactly best evidence thereof is admissible though merely opinion evidence.-Johnston v. City of Galva, 147 N. E. 453.

(B) Subjects of Expert Testimony.

506 (Mass.) Question to expert as to

whether street car could have been started with jump, if controller was properly operated, held admissible.-Convery v. Eastern Massachusetts St. Ry. Co., 147 N. E. 824.

514(4) (Mass.) Testimony of expert as to proper manner of starting car equipped with particular controller and accelerating speed held competent.-Convery v. Eastern Massachusetts St. Ry. Co., 147 N. E. 824.

(C) Competency of Experts. 546 (Mass.) Finding that witness was competent to testify as to operation of street car with type of controller then used warranted.-Convery v. Eastern Massachusetts St. Ry. Co., 147 N. E. 824.

(D) Examination of Experts.

547 (Mass.) Question to expert as to whether car equipped with proper controller would suddenly jump in starting held competent.-Convery v. Eastern Massachusetts St. Ry. Co., 147 Ñ. E. 824.

558 (7) (III.) Testimony of expert witness not to be discredited merely because of amount of his compensation.-Lyon v. Oliver, 147 N. E. 251.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER in time required by statute.-Rosenblatt v. Foley, 147 N. E. 558.

(F) Effect of Opinion Evidence. ~571(1) (III.) Opinion of expert calling attention of court to matters capable of verifica-451 (2) (Mass.) Motion for directed verdict tion held of great value.-Lyon v. Oliver, 147 because action was not brought within year of defendants' qualification rightly allowed.Rosenblatt v. Foley, 147 N. E. 558.

400 (Ohio) Value of widow's dower payable to her in money out of proceeds of sale of 49 (6) (Mass.) Evidence held to warrant leasehold.-Ralston Steel Car Co. v. Ralston, 147 N. E. 513.

450 (Mass.) Plaintiff had burden to prove action against executors was commenced with- See Railroads, 453.

See Frauds, Statute of; Fraudulent Convey- release by subcontractor.-Slotnick v. Smith,

(E) Trial. Judgment, and Review. 64(1) (III.) Corporation charged with deceit in sale of stock held not entitled to direct-159 (Mass.) Whether promise was within ed verdict.-McRoberts v. Combination Foun- statute held for jury.-Slotnick v. Smith, 147 tain Co., 147 N. E. 785. N. E. 737.