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For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
(11) Determination and Disposition of

(C) Estates and Interests Created. Cause.

wil 36 (111.) Form of words by which joint em 1186(4) (N.Y.) Conviction affirmed where tenancy expressly declared not important.court of appeals unable to say that rulings of Stukis v. Stukis, '146 N. E. 530. trial judge deprived defendant of a fair trial. Deed held to create joint tenancy.-Id. -People v. Farini, 146 N. E. 645.

Words evidencing intent to create joint ten.

ancy sufficient, in whatever part of deed apDAMAGES.

pearing.--Id. IV. LIQUIDATED DAMAGES AND PEN

(F) LOSN Relinquishment of Rights. ALTIES. Om76 (Ohio). Considerations

w 177 (III.) That grantor retained posses

determining whether sum is penalty or liquidated damages, deed does not reinvest him with title.-Stand

sion and control of property after delivery of stated.--Jones v. Stevens, 146 N. E. 894. When sum agreed on is regarded as "liquidat- ard Trust & Savings Bank v. Carlson, 146 N.

E. 446. ed damages," stated.--Id. ww78(7) (Ohio) When stipulated damages is IV. PLEADING AND EVIDENCE. à penalty as to any covenant it will be helda em 194(1) (11.) In case of deed of voluntary “penalty" as to all.-Miller y. Blockberger, 146 N. E. 206.

settlement, grantor has burden of proving Om79(1), (Ohio) Matters considered in deter- want of delivery.--Standard Trust & Savings mining whether damages stipulated in contract Bank v. Carlson, 146 N. E. 446. are liquidated damages" or "penalty” stated, w 194(2) (111.) Presumption of delivery aris-Miller v. Blockberger, 146 N. E. 206.

es from grantee's possession of duly executed Reasonable sum deemed “liquidated damages" deed. --Standard Trust & Savings Bank v. Carlwhere damage resulting from breach difficult of son, 146 N. E. 446. ascertainment in advance.-Id.

Smw 207 (II.) Decree dismissing bill held not 80(I) (Ohio) When stipulated sum a pen- manifestly against weight of evidence, and alty.-Miller v. Blockberger, 146 N. E. 206. hence affirmed.-Miller v. Miller, 146 N. E.

Sum stipulated considered “liquidated dam- 469.
ages" when bearing reasonable proportion to a 208(1) (III.) Evidence held insufficient to
probable damage.-Id.

show nondelivery.-Standard Trust & Savings
@mw85 (Ind.App.) Seller, not suffering dam- Bank v. Carlson, 146 N. E. 446.
age on date of buyer's cancellation of flour
order held entitled only to agreed cancellation

DESCENT AND DISTRIBUTION. fee.-H. D. Lee Flour Mills Co. v. Broadlick, 146 N. E. 848.

See Executors and Administrators; Wills. DEATH. 1. NATURE AND COURSE

GENERAL. I. EVIDENCE OF DEATH AND OF SURVI-am 17 (Ind.) Vested remainder in fee in child VORSHIP.

of life tenant, held to descend to tenant on Om2(1) (Mass.) Mere absence insufficient to death of child.-Burrell v. Jean, 146 N. E. raise presumption of death.-Petition of Talbot, 754. 146 N. E. 1.

On death of children, named as remainderWhen presumption of death does not arise. men, of life tenant, latter to inherit parent's -Id.

sbare.-Id. Death of absentee not presumed.-Id.

III. RIGHTS AND LIABILITIES OF

HEIRS AND DISTRIBUTEES.
DEDICATION.

(A) Nature and Establishment of Rights II. OPERATION AND EFFECT.

in General. @my57 (Ohio) Use of slips to water as streets Ow70 (111) Expectancy of prospective heir held not 'inconsistent with purpose of dedica- may be released. -Alward v. Woodard, 146 N. tion.-State v. Sandusky, M. & N. R. Co., 146 E. 154, N. E. 58.

Child accepting land in lieu of rights as heir
Om58 (Ohio) Construction of railroad tracks bound thereby.-Id.
over city streets and across slips, held not to
interfere with contemplated use thereof so as

DISMISSAL AND NONSUIT.
to warrant removal.-State v. Sandusky, M. & See Appeal and Error, Om781-792.
N. R. Co., 146 N. E. 58.
Om64 (Ohio) To constitute misuse or diver-

I. VOLUNTARY.
sion, use must be inconsistent with or inter-emo (Ind. App.) Court's refusal to dismiss on
fere with use contemplated.--State v. Sandusky, plaintiff's motion, made before all evidence was
M. & N. R. Co., 146 N. E. 58.

heard, held error.-Runau y. Wheeler, 146 N.

E. 584.
DEEDS.

II. INVOLUNTARY.
See Mortgages.

Cm73 (Mass.) Motion to dismiss raises only

matter apparent on record.- Finance CorporaI. REQUISITES AND VALIDITY.

tion of New England v. Parker, 146 N. E. 696. (D) Delivery. 56 (2) (III.) Grantor's intention controlling

DIVORCE. fact in determining whether deed has been de

VI. CUSTODY AND SUPPORT OF livered.-Cales v. Dressler, 146 N. E. 162.

CHILDREN, m59(1) (III.) Deed delivered to attorney for m311 (Ind.) Evidence supports guilt of conrecordation and delivery held delivered.-Cales tempt for noncompliance with order to supv. Dressler, 146 N. E. 162.

port child.- Burgin v. Burgin, 146 N. E. 328.

C312 (Ind.) Testimony to inability to pay III. CONSTRUCTION AND OPERATION.

no ground for disturbing finding of contempt. (A) General Rules of Construction. Burgin v. Burgin, 146 N. E. 328. Eww 93 (ill.) Intention governs construction.-

DOMICILE. Stukis y. Stukis, 146 N. E. 530. w96 (III.) Recitals may be referred to, to 2 (III.). "Permanent abode" necessary to ascertain intent.--Stukis v. Stukis, 146 N. E. constitute “residence."--Anderson y, Pifer, 146 530,

N. E. 171. 146 N.E.-59

of

on

m4 (2) (III.) Question of residence is largely Association of owners not authorized to limit one of intention.-Anderson v. Pifer, 146 N. E. easement granted to owner's predecessor in ti171.

tle, nor infringe upon owner's property rights. DOWER.

-Id.
II. INCHOATE INTEREST.

Om 52 (N.Y.) Regulation of association

owners, preventing access to owner's property (A) Rights and Remedies of Wife.

by person desiring to visit owner, held unreaOm 36 (Ind.App.) Wife entitled to one-fifth if sonable.-Drabinsky v. Sea Gate Ass'n, 146 N. land $20,000, and one-fourth if less than $20,- E. 614. 000 against all creditors except mortgagees

Regulation of association of owners in priand judgment creditors.-Sullivan State Bank vate residential colony as to identification of v. First Nat. Bank, 146 N. E. 403.

visitors held reasonable.-Id.

Regulation of association of property owners (B) Bar, Release, or Forfeiture. as to number of guests admissible in one day Om42 (III.) Postnuptial contract, based

held unreasonable.-Id. valuable consideration for mutual release of m6! (2) (N.Y.) Purchaser of property in rights in other's property, valid.-Kohler v private residential colony held not entitled to Kohler, 146 N. E. 476.

injunction, as matter of right, to restrain en

forcement of rules.-Drabinsky V. Sea Gate DRAINS.

Ass'n, 146 N. E. 614. 1. ESTABLISHMENT AND MAINTENANCE

ELECTION OF REMEDIES. Ow15 (111.) Lands of owner using natural drains not subject to annexation to district. Om7(1) (Mass.) Landlord's action for rent -Minnie Creek Drainage Dist. v. Nation, 146 against tenant not election of remedy, barring N. E. 558.

suit on covenant.-Merchants' Nat. Bank v. To warrant annexation of lands outside dis- Ryerson, 146 N. E. 659. trict, it is insufficient to show merely that waters from lands ultimately flow through district

ELECTIONS. ditch.-Id. Lands outside district held not subject to an

II. ORDERING OR CALLING ELECTION,

AND NOTICE. nexation in absence of showing of benefits.-Id.

Burden held on drainage district to show m43 (Mass.) Statute providing for new benefits to lands sought to be annexed.-Id. election held inapplicable, where complete On 25 (ind.) Modes of procedure prescribed election was held.-Madden v. Board of Elecby Civil Code resorted to in special proceed- tion Com’rs of City of Boston, 146 N. E. ings, where no provision is made in act govern- 280. ing latter.-Hunsucker V. Montel, 146 N. E. 110.

IV. QUALIFICATIONS OF VOTERS. Om 36(3) (Ind.) How and where petitioners Om76 (11.) Right of college student to vote at may appeal from judgment dismissing petition place of college question of fact.-Anderson v. stated.-Hunsucker v. Montel, 146 N. E. 110. Pifer, 146 N. E. 171.

Rule as to college student's right to vote at II. ASSESSMENTS AND SPECIAL TAXES.

place of college stated.-Id. Om76 (III.) Description of railroad property College students who regard college town as insufficient to sustain levy by drainage district. home are legal voters.-Id. - People v. Chicago & E. I. Ry. Co., 146 N. E. 440.

VII. BALLOTS. Om89 (III.) Objections not made in county court not considered in Supreme Court.-Peo- em 174 (Mass.) One dying before election ple v. Raboin, 146 N. E. 538.

cannot be candidate for office or elected there

to.-Madden v. Board of Election Com'rs of DUE PROCESS OF LAW.

City of Boston, 146 N. E. 280. See Constitutional Law, Ow275-318.

IX. COUNT OF VOTES, RETURNS, AND

CANVASS,
EASEMENTS.

239 (Mass.) Valid votes cannot be cast 1. CREATION, EXISTENCE, AND TER

for one no longer alive.- Madden v. Board of MINATION.

Election Com’rs of City of Boston, 146 N. E. ml (Mass.) How easement of light and air 280. acquired, stated.-Hampe v. Elia, 146 N. E. Petitioner held to have been elected repre. 730.

sentative of General Court by plurality of votes em 17(4) (N.Y.) Conveyance of lots described susceptible of being counted.-Id. with reference to streets held to create private ww265/2 (Mass.) Certifying deceased easement, notwithstanding nondedication to "person" elected held assertion of impossibilpublic.-Drabinsky v. Sea Gate Ass'n, 146 N. ity.-Madden v. Board of Election Com’rs of E. 614.

City of Boston, 146 N. E. 280. 19 (Mass.) Tenant held not to have easement of light and air in landlord's adjoining

X. CONTESTS. premises.-Hampe v. Elia, 146 N. E. 730.

C291 (111.) Rule as to burden of proof in II. EXTENT OF RIGHT, USE, AND OB election contest stated.-Anderson v. Pifer, 146 STRUCTION.

N. E. 171. Cm38 (N.Y.) Owner of fee of private street Em 293(2), (III.) Voter may testify as to inholds for benefit of all those having easements tention with reference to residence, but such therein.-Drabinsky v. Sea Gate Ass'n, 146 N. testimony is not conclusive.-Anderson y. Pifer, E. 614.

146 N. E. 171. Cm 50 (N.Y.) Easement in streets is right of em295(1). (III.) Evidence held to show colproperty, not changeable by rules and regula- lege students not legal voters college town tions of owner of servient property.-Drabinsky in which they voted.-Anderson v. Pifer, 146 x. v. Sea Gate Ass'n, 146 N. E. 614.

E. 171. Right of owner of servient property to make

ELECTRICITY. rules and regulations must result from limitation upon easement originally granted.--Id. ww 19(5) (Ind.App.) Evidence held to sustain

Rights of owners of lot in private residential finding of negligence, without invoking doctrine property held subject to reasonable regulations. of res ipsa loquitur.—Town of Oxford v. Scott, -Id.

146 N. E. 833.

as

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

interest other than possibility of reversion.-w 5 (III.) Contemplated replacement of funds State of Illinois v. Sohm, 146 N. E. 518.

Department of Public Works and Buildings of does not excuse. People v. Schrager, 146 N. E.172 (Mass.) Failure to answer does not 151. em 44(1), (III.) Evidence held to sustain con- Bedford, 146 N. E. 41.

confer jurisdiction.-Herman v. City of New viction.—People v. Schrager, 146 N. E. 151.

173 (Ind.) Venue statutes do not apply to EMINENT DOMAIN.

eminent domain proceedings before question of

damages has been reached.-Matlock v. BloomI. NATURE, EXTENT, AND DELEGATION ington Water Co., 146 N. E. 852. OF POWER.

On 174 (Mass.) Limitation is of right as well Om2(11) (Ohio) Act taxing motor vehicles ac- as remedy.-Herman v. City of New Bedford, cording to horse power held not unconstitution 146 N. E. 41. al.--Fisher Bros. Co. v. Brown, 146 N. E. 100. Court without jurisdiction after expiration Om28 (Ind.) That water company would likely of term within which petition for damages must sell water directly to city or lease its plant to be brought.-Id. city held not to render it less a public utility - Omw 185 (Mass.) Failure of city to appear not Matlock v. Bloomington Water Co., 146 N. E. default.-Herman v. City of New Bedford, 146 852.

N. E. 41, w33 (III.) Statute held not to give coal com- w 186 (III.) Submission of plans and specipany power to force connection with railroad fications for Illinois waterway to cities and without sanction of legal authority.--Cleveland, villages along route not condition precedent to C., C. & St. L. Ry. Co. v. Commerce Commis- condemning land.--Department of Public Works sion, 146 N. E. 606.

and Buildings v. Engel, 146 N. E. 521.

Owner of land to be condemned for Illinois II. COMPENSATION.

waterway held entitled to plans and specifica(A) Necessity and Sufficiency in General. tions for portion of waterway affecting his

land only.-Id. 69 (N.Y.) Right to payment constitutional Objection to condemnation of land for Illiright, not legislative creation.-In Elm nois waterway on ground route not fixed overSt. in City of New York, 146 N. E. 342.

ruled.-Id. www74 (ind.App.) Railroad desiring to cross en 191(1) (III.) Petition alleging that land track of another must pay compensation in ad- was public property, and asking for adjudicavance.-New Jersey, I. & I. R. Co. v. New tion of state's right of possession, held 'deYork Cent. R. Co., 146 N. E. 111.

murrable.- Department of Public Works and

Buildings of State of Illinois v. Sohm, 146 (C) Measure and Amount.

N. E. 518. Om 148 (Mass.) Interest on amount found due w 191(8) (III.) Petitioner required to ascercomputed rightly at 6 per cent. per annum. tain and name true owner of land, and owner James Millar Co. v. Commonwealtb, 146 N. E. named need not prove title.-Department of 677.

Public Works and Buildings of State of Illinois

v. Sohm, 146 N. E. 518. (D) Persons Entitled and Payment.

192 (Mass.) Matters of defense and avoidmw 152(!). (III.) Rights of parties fixed at ance must be pleaded.-Herman v. City of New time petition filed, and subsequent conveyance Bedford, 146 N. E. 41. of land affects only payment of compensation Bmw 196 (11.) Burden on petitioner to prove and not whether party conveying may be compliance with conditions precedent to right heard.-Department of Public Works and to take property.-Department of Public Works Buildings v. Engel, 146 N. E. 521.

and Buildings v. Engel, 146 N. E. 521. Om 153 (111.) Grantee to whom land was con- Omw 196 (ind.) Evidence held to warrant findveyed pending condemnation proceedings ing, of right to exercise power of eminent doagainst grantor succeeded to grantor's vested main.--Matlock v. Bloomington Water Co., 146 rights.-City of Chicago v. Collin, 146 N. E. N. E. $52. 741.

C205 (ill.) Evidence held to show agreeOm 157 (Mass.) Petitioners assenting thereto, ment as to compensation had been mutually city cannot question apportionment of damages abandoned.–Department of Public Works and between fee owner and lessee.-Herman v. City Buildings v. Engel, 146 N. E. 521. of New Bedford, 146 N. E. 41.

w221 (III.) Only issue involved in condemOm 158 (III.) Defendant's grantee not requir-nation proceeding is amount of compensation. ed to join as parties to her petition claiming -Department of Public Works and Buildings compensation holders of void tax deeds.-City of State of Illinois v. Sohm, 146 N. E. 518. of Chicago v. Collin, 146 N. E. 741.

Om 224 (Mass.) Trial judge authorized to grant

new trial in condemnation proceeding; "civil III. PROCEEDINGS TO TAKE PROPERTY actions."--Herman v. City of New Bedford, AND ASSESS COMPENSATION.

146 N. E. 41. Omall 66 (11.) Condemnation proceeding not Cm 245 (N.Y.) Relation between city and landproper proceeding for determination as to ex- owner receiving award for taking of property isting right in land.-Department of Public in street opening proceedings, held to be that Works and Buildings of State of Illinois v. of vendor and vendee and debtor and creditor. Sohm, 146 N. E. 518.

- In re Elm St. in City of New York, 146 N. E. Om 167(!) (Mass.) Act providing that land 342. shall not be taken except under general laws am 246(3) (III.) Failure to pay amount awardheld inapplicable to land taken before act was ed by date specified by trial court until after effective. - James Millar Co. v. Commonwealth. affirmance of judgment on appeal, 'held not to 146 N. E. 677.

operate as abandonment of proceedings.-City m169 (ill.) Consents of federal and state of Winchester v. Ring, 146 N. E. 541. authorities held necessary before condemnation 249 (III.) Time within which amount of land to be used in erecting obstructions in awarded was to be paid cannot be changed or navigable stream.-Department of Public extended after term.-City of Winchester v. Works and Buildings v. Engel, 146 N. E. 521. Ring. 146 N. E, 541. cm 171 (ind.) That water company's plant notww249 (N.Y.) Award in street opening proin operation held not to prevent its exercise of ceedings held to constitute a "final judgment" power of eminent domain. - Matlock v. Bloom- when confirmed by court within limitation ington Water Co, 146 N. E. 852.

statute.-In re Elm St. in City of New York, Om 172 (III.) Court had no jurisdiction to de- | 146 N. E. 342. termine whether land involved was alreadly Cam 262 (4) (Ind.) Trial court's judgment for part of highway, in which defendant had no 'petitioner supported by evidence will not be set

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aside.—Matlock v. Bloomington Water Co., 146 (E) Demurrer, Exceptions, and Motions.
N. E. 852.
Cu 265(5) (III.) On failure to pay compensa plaintiffs had adequate remedy at law, without

uw 220 (Mass.) Demurrer to bill, as showing tion and damages awarded within time fixed merit, when not appearing on face.-Bonner v. by court, proceedings are abandoned, and de- Chapin Nat. Bank of Springfield, 146 N. E. 666. fendant may recover costs, etc.-City of Win-w223 (Mass.) Failure of bill

' to allege that chester v. Ring, 146 N. E. 541.

defendant had refused to take action with ref

erence to matters alleged held not ground for IV. REMEDIES OF OWNERS OF PROP- demurrer.-Bonner v. Chapin Nat. Bank of ERTY.

Springfield, 146 N. E. 666. On 271 (Ohio) Inquiry relates to reasonable-Eur 235 (Mass.) Speaking demurrer to bill on ness where property owner makes improve-ground of want of jurisdiction rightly overments with reference to reasonable grade to ruled.-Pond v. Simpson, 146 N. E. 684. be established.-Gohman v. City of St. Bern- 239 (Mass.) Allegations of bill, well pleadard, 146 N. E. 291.

ed, taken as admitted by demurrer.--Bonner 288 (Mass.) Only remedy for damages to

v. Chapin Nat. Bank of Springfield, 146 N. E. abutter from laying out of street being under 666. statute, petition for damages must be filed within prescribed time.-Hester v. City of (G) Signature, Indorsement, Verification, Brockton. 146 N. E. 224.

Filing, and Service.
Act making amendment statute applicable to 319 (Mass.) Objection that allegations
eminent domain case did not extend time, so as were made without plaintiff's knowledge of
to revive right after it ceased to exist.--Id. facts stated not maintainable in view of verifi-

Court held without jurisdiction to amend cation.--Bonner v. Chapin Nat. Bank of Spring-
property owner's action in tort into petition for field, 146 N. E. 666.
damages after expiration of time prescribed for
filing petition.-Id.

VIII. HEARING, SUBMISSION OF ISSUES
On 303 (Ohio) Measure of damages to prop-

TO JURY, AND REHEARING. erty improved with reference to reasonable grade, where grade is unreasonable, stated.- Em392. (III.) Denial of rehearing for merely Gohman v. City of St. Bernard, 146 N. E. cumulative evidence of experts, whose testi291.

mony on original hearing petitioner showed no Inquiry as to expense of alterations and res

attempt to secure, not abuse of discretion.torations to adjust property and improvements Miller v. Miller, 146 N. E. 469. to new grade of street, held pertinent.-Id.

IX. MASTERS AND COMMISSIONERS, AND

PROCEEDINGS BEFORE THEM. EQUAL PROTECTION OF THE LAWS.

ww412 (III.) Denial of motion to re-refer case See Constitutional Law, 230.

to master for introduction of other evidence

heid not error.-Seely V. Board of Education EQUITY.

of Green Valley, Community High School Dist. See Cancellation of Instruments; Conversion; 1 Can 412' (Mass.) Motion to recommit master's

No. 306, 146 N. E. 187. Creditors' Suit; Injunction; Partition; Ref- report addressed to court's discretion.-Selwyn ormation of Instruments; Specific Perform

v. Harris, 146 N. E. 248. ance; Subrogation; Trusts. 1. JURISDICTION. PRINCIPLES, AND

X. DECREE AND ENFORCEMENT

THEREOF. MAXIMS. (C) Principles and Maxims of Equity.

m427 (2) (III.) General prayer for relief suf

ficient to support any decree warranted by alOm65(1) (Ohio) Equity will not aid one guilty legations and evidence.-Seely v. Board of Eduof inequitable conduct in matter in which he cation of Green Valley Community High School seeks relief.-Kinsman Nat. Bank v. Jerko, 146 Dist. No. 306, 146 N. E. 187. N. E. 210.

65(2) (Ohio) Plaintiff's fraudulent disposition of chattel property, to place it beyond

ERROR, WRIT OF.
reach of creditors, bars relief in equity.-Kins- See Appeal and Error.
man Nat. Bank v. Jerko, 146 N. E. 210.

ESTATES.
III. PARTIES AND PROCESS.
Omo 117. (Mass.) Demurrer not sustained, for See Descent and Distribution; Dower; Ex-
want of necessary parties, on account of ref- ecutors and Administrators; Remainders:

Wills.
erence to certain parties against whom no re.
lief was sought.-Bonner v. Chapin Nat. Bank Cal (11.) Estates classified; "freehold es-
of Springfield, 146 N. E. 666.

tates;" "estates less than freehold."-Fowler 119 (Mass.) Service by registered mail held v. Marion & Pittsburg Coal Co., 146 N. E. insufficient to bring nonresident in as party.- 318. Pond v. Simpson. 146 N. E. 684.

ESTOPPEL. No jurisdiction acquired over defendant by service on corporation.-Id.

III. EQUITABLE ESTOPPEL. Cim 127 (Mass.) Special appearance by non- (A) Nature and Essentials in General. resident not served with process held not general submission to jurisdiction.-- Pond v. Simp- stated. --General Realty Co. v. Silcox, 146 N.

ww52 (Ind. App.) Elements of son, 146 N. E. 684.

E. 408.
IV. PLEADING.

C62(2) (III.) No estoppel against United

States.-Davis v. Industrial Commission, 146
(A) Original Bill.

N E. 569,
Cam 143 (Mass.) Bill held certain and definite. Om62(4) (III.) Municipality, having
Bonner v. Chapin Nat. Bank of Springtield, i cised lawful power, may be estopped to ques.
116 N. E. 666.

tion validity of act.-Seely v. Board of Educa. Cmw 150(1) (Mass.) Bill held not multifarious. tion of Green Valley, Community High School

Bonner v. Chapin Nat. Bank of Springfield, Dist. No. 306, 146 N. E. 187. 116 N E. 666.

(62(4) (11.) City not estopped to dispute Cmw 153 (!11.). Allegations taken most strongly validity of contract which it had no power to against pleader on demurrer.-Fowler v. Mar- make because it has received consideration.ion & Pittsburg Coal Co., 116 N. E. 318. De Kam v. City of Streator, 146 N. E. 550.

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For cases in Doc.Dig, & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
(B) Grounds of Estoppel.

tiffs to maintain issue presented.-West V.
Emo 75 (Mass.) Seller held not estopped from State Street Exchange, 146 N. E. 37.
claiming stock certificates specially indorsed by
him.- Place v. Chaffee, 146 N. E. 722.

IV. RELEVANCY, MATERIALITY, AND

COMPETENCY IN GENERAL. (E) Pleading, Evidence, Trial, and Re- (A) Facts in Issue and Relevant to Issues. view.

Om 113(10) (Mass.) Evidence as to cost of re107 (Ind.App.) Complaint held insufficient producing filled land was within court's discreto plead estoppel to deny plaintiff's right to tion to admit or exclude.-James Millar Co. v. use switch track, constructed under agreement Commonwealth, 146 N. E. 677. with defendant's deceased husband.-General am 113(19) (Mass.) Copies of corporation's Realty Co. v. Silcox, 146 N. E. 408.

excise tax return rightly excluded.-James MilOm 114 (Ind.App.) Pleading of estoppel held lar Co. v. Commonwealth, 146 N. E. 677. defective for failure to aver knowledge of facts on part of person estopped.-Allen Realty Co. (C) Similar Facts and Transactions. v. Uhler, 146 N. E. 766.

em 142(4) (Mass.) Evidence of sale price of EVIDENCE.

property 25 miles from land taken was erro

neously admitted, there being no evidence of See Criminal Law, Ow304–572; Witnesses. similarity of value.-James Millar Co. y. ComFor evidence as to particular facts or issues monwealth, 146 N. E. 677.

or in particular actions or proceedings, see mm 142(4) (Mass. Evidence of value of sugar also the various specific topics.

other than of quality involved held erroneously For review of rulings relating to evidence, see

admitted.-National Wholesale Grocery Co. v. Appeal and Error.

Mann, 146 N. E. 791.
Reception at trial, see Trial, em 91.

V. BEST AND SECONDARY EVIDENCE.
I. JUDICIAL NOTICE.

Om 181 (Ind.App.) Carbon copies of letters Om5(2) (N.Y.) Manipulation of light has made and other instruments held improperly adit common knowledge that the eye can be mis- mitted for want of proper foundation.- Massataken as to nature of thing observed.-Biddles, chusetts Bonding & Insurance Co. v. State, 146 Inc.. v. Enright, 146 N. E. 625.

N. E. 116. 14 (Ind.App.) Incautious tendencies of Cw182 (Mass.) Exclusion of copy of letter, youth, matter of common knowledge.-National not shown to have been mailed in ordinary Biscuit Co. v. Roth, 146 N. E. 410.

course, held not error.-W. R. Grace & Co. v. Cw14 (Mass.) It is common knowledge that National Wholesale Grocery Co., 146 N. E. 908. in thickly settled manufacturing communities

VII. ADMISSIONS. atmosphere is inevitably impregnated with disagreeable odors and impurities.-Strachan v. (A) Nature, Form, and Incidents in GenBeacon Oil Co., 146 N. E. 787.

eral. Omw 19 (Mass.) Common knowledge that num; 213(1) (Mass.) Evidence of ber of motor vehicles exceeds all others and statement and defendant's silence at meeting

plaintiff's different highway construction is required for to compromise held incompetent.-Garber v. their convenience.-Opinion of the Justices, Leyine, 146 N. E. 21. 146 N. E. 651.

Cmt 213(2) (Mass.) Defendant's promise to m20 (2) (III.) Common knowledge that term adjust damage to plaintiff's automobile held *spur track” is given wider application than not to be offer to compromise.-Dennison v. ordinary definition.-Cleveland, C., C. & St. L. Swerdlove, 146 N. E. 27. Ry. Co. v. Commerce Commission, 146 N. E. 213(2) (Mass.) Statement by defendant 606.

that he would make damages good held not ofOm41 (Ind. App.) Courts take judicial notice fer of compromise, but admission of fault.-of manner of paying officers in attendance.- Wiseman v. Rome, 146 N. E. 28. Etzold v. Board of Com’rs of Huntington Coun- nw213(3) (III.) Evidence of offer by way of ty, 146 N. E. 842.

compromise not admissible.-Alward v. Wood-
m43(2) (Ind.App.) Judicial knowledge tak- ard, 146 N. E. 154.
en of auditor's transcript of proceedings of Cm217 (Mass.) Defendant's promise to ad-
board of commissioners.-Pulse v. Board of just damage to plaintiff's automobile held not to
Com’rs of Decatur County, 146 N. E. 335. be offer of compromise, but admission of fault,

--Dennison v. Swerdlove, 146 N. E. 27.
II. PRESUMPTIONS.

Onw219(1), (Mass.) Mental reaction of owner em 58 (Ind.) Contingency, of birth of child to when he heard story of automobile accident woman, determined only on her death.-Burrell and reply to his question held relevant.-Walsh v. Jean, 146 N. E. 754.

v. Feinstein, 146 N. E. 355. Om 69 (Ind.App.) Rules presumed to have been filed with Interstate Commerce Commission (D) By Agents or Other Representatives. and to have been published as required by law. 244(1) (Mass.) Evidence that property was -Davis v. Steele, 146 N. E. 425.

only $30.000 investment properly received.Cm7! (N.Y.) Evidence of mailing merely creates presumption that letter reached destina - James Millar Co. v. Commonwealth, 146 N. E.

677. tion.-Curry v. Mackenzie, 146 N. E. 375.

VIII. DECLARATIONS. Ow82 (ind. App.) In absence of express statutory inhibition, assumed that payments made to (A) Nature, Form, and Incidents in Gencourt reporter and accepted were properly paid and allowed.-Etzold v. Buard of Com'rs of ~269 (2) (III.) Declarations of parent makHuntington County, 146 N. E. 842.

ing advancements admissible.--Alward

V. ww83(1) (III.) Not presumed that state Woodard, 146 N. E. 154. board will exercise powers arbitrarily.-People Deviseés competent to testify as to agreev. Witte, 146 N. E. 178.

ment and declarations of father when making On83(1) (Mass.) Presumption made in favor advancement to son, but declarations in abof regularity and fairness of procedure and sence of son not provable.--Id. proposed action of board of registration in C271 (2) (II.) Self-serving declarations inmedicine.-Davis v. Calderwood, 146 N. E. 708. competent.-George J, Cooke Co. v. Fred Mil

ler Brewing Co., 146 N. E. 459. III. BURDEN OF PROOF.

Self-serving declaration of seller not admisOmo 94 (Mass.) Weight or preponderance of sible to rebut letters from purchaser, introevidence may shift, but burden rests on plain-l duced by seller.-Id.

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