(113 A.) Chancery. Suit by Oscar Schwabinger against | WALLING, SIMPSON, KEPHART, SADLER, John Saxon and others. From a decree for and SCHAFFER, JJ. Thomas P. Duffy, of complainant (110 Atl. 15), defendants appeal. Scranton, for appellant. Cornelius Comegys, Affirmed. Harry Scher and D. Frederick Bur- of Scranton, for appellee. nett, both of Newark, for appellant. Stein, Stein & Hannoch, of Newark, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Fielder. 110 Atl. 15. SOLOMON et al. v. NEW JERSEY INDEMNITY CO. (No. 48.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) Ap peal from Supreme Court. Action by Louis Solomon and another against the New Jersey Indemnity Company. A judgment for the plaintiffs was affirmed by the Supreme Court (110 Atl. 813), and defendant appeals. Affirmed. Merritt Lane, of Newark, for appellant. J. Victor D'Aloia, of Newark, for respondents. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court. WILSON et al. v. SANDALL. (No. 43.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) Appeal from Court of Chancery. Bill by George Wilson and others, trading as the United Tin Trading Company, against Marion E. Sandall. Decree for complainants, and defendant appeals. Affirmed. For the opinion of the Vice Chancellor in the court below, see 111 Atl. 322. Lewis Fisher, of Newark, for appellant. Norman Grey, of Camden, for respondents. PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Backes. PER CURIAM. This case is ruled by our decision in Atherton v. Clearview Coal Co., 267 Pa. 425, 110 Atl. 298. Judgment affirmed. POWERS v. HINES, Director General of er D. Hines, Director General of Railroads. A. L. FRAZER, J. The injury for which this action was instituted to recover compensation was the result of the same accident in which William A. Doud and his wife, Edith Doud, were injured, and in whose case an opinion was filed February 14, 1921. 269 Pa. 182, 112 Atl. 528. What was said there relative to the cause of the accident and plaintiffs' right to recover is applicable here, and, for the reasons set forth in that opinion, the assignments of error here are overruled, and the judgment is affirmed. WARTELL v. CLEARVIEW COAL CO. (Supreme Court of Pennsylvania. April 11, 1921.) Appeal from Court of Common Pleas, Lackawanna County; Henry M. Edwards, Judge. Action by Julia Wartell against the Clearview Coal Company. From the judgment rendered, plaintiff appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Thomas P. Duffy, of Scranton, for appellant. Cornelius Comegys, of Scranton, for appellee. PER CURIAM. A stipulation has been filed of record in this case, agreeing that the questions here involved are the same as those in Jordan v. Clearview Coal Co., 113 Atl. 927, the judgment in which was affirmed to-day. What is there said controls here. Judgment affirmed. END OF CASES IN VOL. 113. INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABATEMENT AND REVIVAL. II. ANOTHER ACTION PENDING. ADOPTION. 21 (Pa.) Child adopted after making of will not entitled to rights of after-born child. 4 (N.H.) Second suit on same cause held-In re Boyd's Estate, 691. not to be dismissable as vexatious.-Hoyt v. Massachusetts Bonding & Insurance Co., 219. 8(1) (N.H.) Plea in abatement must be overruled, where both actions not for same cause.-Hoyt v. Massachusetts Bonding & Insurance Co., 219. 8(2) (N.H.) Plea in abatement of accident insurers properly overruled, causes of action not being identical.-Hoyt v. Massachusetts Bonding & Insurance Co., 219. ACCORD AND SATISFACTION. See Compromise and Settlement. (Pa.) Intent must be clearly manifested. -Hartzog's Estate, 193. 11(1) (Vt.) Checks in full held an accord to particular contract alone.-Randall v. Beryl Lumber Co., 872. as ADVERSE POSSESSION. 1. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General. 8(1) (R.l.) Grant for all religious, moral, literary, and scientific purposes held a charitable trust for the public at large and not subject to adverse possession.-Hicks v. City of Providence, 791. (F) Hostile Character of Possession. 60 (2) (R.I.) Presumption one taking possession of land under permission or license from owner holds in subordination to him.Tefft v. Reynolds, 787. 60(4) (R.I.) Presumption occupation at first not adverse continues to be so.-Tefft v. Reynolds, 787. 11(2) (Vt.) Plaintiff held not estopped by checks in full of salary to claim salary under 61 (R..) Claimants under trustee of chardifferent contract.-Randall v. Beryl Lumber itable trust could not hold adversely to cesCo., 872. tuis.--Hicks v. City of Providence, 791. III. PLEADING, EVIDENCE, TRIAL, AND 17 (Pa.) Where deed in satisfaction of judgment has not been executed, judgment still exists.-Hartzog's Estate, 193. ACCOUNT. I. RIGHT OF ACTION AND DEFENSES. REVIEW. 115(1) (Md.) Evidence held sufficient for submission to court as a jury.-Bonsal v. Baltimore & O. R. Co., 751. AGENCY. 6 (N.J.Ch.) Where matters between par- See Principal and Agent. ties were particularly complicated, held, that accounting should be taken.-Carey v. Brown, 113 A. 499. ACTION. See Abatement and Revival. II. NATURE AND FORM. 20 (R.I.) Proceeding on petition by widow for additional allowance held in effect an action at law.-Connole v. Connole, 467. 24 (Me.) Action for money received against trustee who sets up an equitable defense determined by equitable principles.-Rodick v. Pineo, 45. III. JOINDER, SPLITTING, CONSOLIDA- 50(3) (Pa.) Joint action by broker and attorney plaintiffs held maintainable.-Cochran v. Stevenson, 65. ADJOINING LANDOWNERS. See Boundaries. ADMINISTRATION. See Executors and Administrators. 113 A.-59 ANIMALS. 27 (N.J.Sup.) Hirer held not liable for not returning diseased horse killed over protest.Gouled v. Holwitz, 323. APPEAL AND ERROR. See Certiorari; Courts, 208-242; Criminal Law, 1023-1202; Exceptions, Bill of. For review of rulings in particular actions or proceedings, see also the various specific topics. 1. NATURE AND FORM OF REMEDY. 3 (Me.) Statute held merely to prescribe forum and not practice for review of judgments. -Hersey v. Weeman, 394. review default by writ of error.-Hersey v. 5 (Me.) Defendant who is not served may Weeman, 394. Discretionary judgment cannot be reviewed by writ of error.-Id. Writ does not lie where exceptions might have been taken.-Id. Where plaintiff in error failed to except to denial of special motion to vacate default, writ of error for that purpose is not available.-Id. 6 (Me.) For abuse of judicial discretion, exceptions will lie.-Hersey v. Weeman, 394. (929) 16 (Pa.) Separate appeals must be taken from separate judgments for parent and child for injuries to child.-Shaw v. Plains Tp., 410. II. NATURE AND GROUNDS OF APPELLATE JURISDICTION. 336(1) (Pa.) Appeal, joined in by separate persons who should have taken distinct appeals, dismissed.-In re Long's Estate, 675. VII. REQUISITES AND PROCEEDINGS 21 (Pa.) Appeal from interlocutory decree (C) Payment of Fees or Costs, and Bonds or Other Securities. quashed, notwithstanding consent of the parties to jurisdiction.-In re Monnia's Estate,371 (Md.) Where record was printed be550. III. DECISIONS REVIEWABLE. (D) Finality of Determination. 70(3) (Md.) Ruling on motion to amend pleadings not appealable.-Atkinson v. Philadelphia, B. & W. R. Co., 110. fore appeal called for argument, motion to dismiss for failure to pay in time cost of printing denied.-Belt v. Hilgeman-Brundige Co., 721. IX. SUPERSEDEAS OR STAY OF PROCEEDINGS. 460(1) (N.H.) Delays entering of judgment until disposed of.-Boston & M. R. R. v. Watkins. 796. 78(3) (R.1.) Exceptions to overruling of demurrer not entertained until issues of fact are tried.-Germain v. L'Union St. Jean Bap-X. tiste D'Amérique, 655. RECORD. (B) Scope and Contents of Record. 80(3) (Pa.) Decree, ordering distribution under intestate laws, but not determining parties entitled, is not final.-In re Monnia's Es-525(2) (Pa.) Charge must be excepted to tate, 550. cision. before retirement of jury and charge be reduced to writing.-Ward v. B. T. Babbitt, Inc., 558. (E) Nature, Scope, and Effect of DePoints requested must be filed, and mere tak87 (2) (Md.) Order refusing to revoke let-ing of exception not sufficient.---Id. ters testamentary appealable.-Stake v. Stake, 591. 87 (9) (Vt.) Exception does not lie to refusal of trial court to pass case to Supreme Court.-Sherwin v. Ladd, 522. IV. RIGHT OF REVIEW. (B) Estoppel, Waiver, or Agreements Affecting Right. 157 (N.H.) Exception to deposition and commitment for refusal to answer held waived by compliance therewith.-Boston & M. R. R. v. Watkins, 796. 528 (4) (Pa.) Depositions reciting that they were taken pursuant to notice and on motion for new trial, with docket entries showing they were filed held part of the record.-Scott v. Bergdoll, 355. (E) Abstracts of Record. 589 (Pa.) Limit of claim in statement of question is binding on appellants.-McIlvaine v. Powers, 365. (D) Defects, Objections, Amendment, and 637 (Md.) No dismissal because bills of V. PRESENTATION AND RESERVATION exceptions were not presented to counsel with IN LOWER COURT OF GROUNDS OF REVIEW. in statutory time, no injury occurring.--Mid- (J) Conclusiveness and Effect, Impeach ing and Contradicting. 664 (3) (Pa.) Statement of facts conclusive authority, though contrary to record.-Hall v. Delaware, L. & W. R. Co., 669. as (K) Questions Presented for Review. 690 (4) (N.H.) Admission and exclusion of evidence cannot be reviewed, in the absence of the evidence.-Twarog v. Amoskeag Mfg. Co., 224. 690 (4) (Pa.) Admissibility of evidence not considered in absence of the evidence.-Porter v. Commonwealth Casualty Co., 688. 695(2) (Pa.) No review of refusal to remove nonsuit where excluded testimony not shown.-Waldron v. Andrew, 742. 701(1) (N.H.) Instructions cannot be reviewed, in the absence of the evidence.-Twarog v. Amoskeag Mfg. Co., 224. 705 (Pa.) Discretion in allowing auditors' compensation not reviewed on mere inspection of work set out in paper books.-Commonwealth v. Traders' & Mechanics' Bank of Pittsburgh, 186. (L) Matters Not Apparent of Record. in record 714(6) (Md.) Statement not though certified by judge as having been considered, not before Appellate Court.-Chesapeake Realty Co. of Baltimore City v. Patterson, 725. XI. ASSIGNMENT OF ERRORS. 719(11) (N. J.) Appeal from Supreme Court dismissed, when no ground of appeal Appeal and Error For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER raises alleged error in that court.-Diamond [ ant's motion for judgment notwithstanding verMills Paper Co. v. Leonard Hygiene Ice Co., dict.-Clinger v. Payne, 830. 139. 139. (F) Discretion of Lower Court. 722(1) (N.J.) Proper assignment on appeal from Supreme Court stated.-Diamond Mills Paper Co. v. Leonard Hygiene Ice Co., 945 (Me.) Discretionary act of justice of Supreme Court of Probate not reviewable on 726 (Pa.) Assignments to dismissal of ex- exceptions.-Appeal of Quinn, 38. ceptions to the auditor's report should quote 955 (Pa.) Allowance of receiver reversed decree. Commonwealth v. Traders' & Mechan- only on clear proof of error.-Commonwealth ics' Bank of Pittsburgh, 186. v. Traders' & Mechanics' Bank of Pittsburgh, 186. 732 (Pa.) Assignment of error to overruling motion for new trial must be self-support-959(3) (N.J.) Application to amend at trial is in court's discretion and not reviewable.ing. Scott v. Bergdoll, 355. Reed v. Director General of Railroads, 146. 732 (Pa.) Motion and reasons must appear on review of refusal to make absolute rule for 960(1) (Pa.) Refusal of judgment for want of sufficient affidavit of defense not disnew trial.-Ward v. B. T. Babbitt, Inc., 558. turbed unless clearly erroneous.-Philip HaiXIV. DOCKETS, CALENDARS, AND PRO- bach Contracting Co. v. Hornung, 365. CEEDINGS PRELIMINARY TO HEARING. 811 (R.I.) Appeal from decree for preliminary injunction given early hearing on showing of existence of emergency.-Rotman v. Mushlin, 673. XVI. REVIEW. (A) Scope and Extent in General. 843(1) (Pa.) Opinion on merits is improper on appeal from interlocutory decree.-In re Monnia's Estate, 550. 979(5) (Pa.) Refusal of new trial for excessive damages not disturbed unless excess shocks court's conscience.-Scott v. Bergdoll, 355. (G) Questions of Fact, Verdicts, and Findings. 1003 (Pa.) Appellate court may apply to physical facts well-known laws of nature, etc. -Lessig v. Reading Transit & Light Co., 381. 1009(1) (Me.) Finding in equity conclusive unless clearly erroneous.-Belfast Sav. Bank v. 854(1) (N.J.) Grounds of appeal, complain-Sanford & C. P. Ry. Co., 14. ing of finding and opinion of Supreme Court, are bad.-Diamond Mills Paper Co. v. Leonard Hygiene Ice Co., 139. 860 (N.H.) Contention that the report of referees was against evidence and prejudiced cannot be considered on exceptions.-Chutter v. Richardson, 770. 863 (Me.) On appeal in equity from appointment of receiver to prosecute claims, validity of claims not considered.-Belfast Sav. Bank v. Sanford & C. P. Ry. Co., 14. 1009(1) (Me.) Finding of trial justice not disturbed, unless clearly erroneous.—Quinn v. Thalasinou, 37. 1009 (1) (Me.) Findings of sitting justice sustained unless clearly erroneous.-City of Lewiston v. Grant, 181. 1009(2) (Del.) Chancellor's finding, sup. ported by evidence not disturbed.-Chalfant v. Reinhardt, 674. 1009 (2) (N.H.) Finding in equity suit supported by evidence conclusive.-Fernald v. Fernald, 223. (D) Amendments, Additional Proofs, and 1009 (2) (Pa.) Findings of chancellor not disturbed, if supported by evidence.-Kirk v. Kirker, 185. Trial of Cause Anew. 889(2) (R.l.) Amendment treated as made when case tried on that theory.-Joyce v. Ca-1010(1) (Me.) Findings of justice of Supreme Court of Probate conclusive.-Appeal of Quinn, 38. ry, 2. 893(2) (Md.) Court in equity suit must1011(1) Finding of trial court conclusive. make such decree as is required, without re-(Conn.)_Eastern Burlap Bag Co. v. C. M. gard to bill.-Beggs v. Erb, 881. Shay Fertilizer Co., 151; (R.1.) Hurst v. Brayton, 4. (E) Presumptions. 901 (Me.) Finding in equity conclusive unless clearly erroneous, and burden is on appellant.-Belfast Sav. Bank v. Sanford & C. P. Ry. Co., 14. 1011(1) (N.H.) Conclusion of trier of fact cannot be disturbed, where there was evidence on both sides.-Hoyt v. Massachusetts Bonding & Insurance Co., 219. 1011(1) (Pa.) Findings by trial court in901 (Vt.) Appellant must bear burden of volving credibility of witnesses given effect of producing record containing error.-Randall v. verdict.-McIlvaine v. Powers, 365. Beryl Lumber Co., 872. 1024(3) (R.I.) Finding of trial court that 924 (Pa.) Allowance to auditors of receiv-notice of taking deposition served reasonable ers' accounts presumed to be right.-Common- time before not disturbed.-Guarantee Food Co. wealth v. Traders' & Mechanics' Bank of Pittsv. Burke, 789. burgh, 186. 926(3) (Vt.) Testimony presumed material on appeal.-In re Wells' Will, 822. (H) Harmless Error. 926 (7) (Vt.) Assumed on appeal that wit-1041(2) (N.J.) Defendant's opening adness stated facts on which she based opinion.- dress held to show defendant not surprised or In re Wells' Will, $22. prejudiced by amendment.-Reed v. Director General of Railroads, 146. 927(7) (Md.) Testimony adduced before jury on which verdict directed must be regard-1043(6) (R..) Admission of deposition ed as true.-Greenbaum v. Costa, 79. 930(1) (Pa.) Plaintiff entitled to have testimony viewed in favorable light when verdict in his favor.-Piper v. Adams Express Co., 562. 930 (2) (N.H.) In absence of contrary evidence, it is presumed the jury followed the court's instructions.--Koren V. Newmarket Mfg. Co., 389. taken without sufficient notice not error, where facts testified to admitted by adverse party.Guarantee Food Co. v. Burke, 789. 1050 (2) (Vt.) Admission of immaterial evidence must be shown to be prejudicial.-In re Wells' Will, 822. 1052(2) (Vt.) Premature admission of contract not shown to have been taken out of statute of frauds harmless.-Ross v. Hamilton, 781. 931(1) (Pa.) Usual presumptions of correctness do not obtain where trial court did not see witnesses. In re Gilbraith's Estate, 1056 (6) (Md.) Exclusion of evidence relating to damages immaterial in absence of right to recover.-Deane v. Big Spring Distilling Co., 891. 361. 934(1) (Pa.) Circumstances must be viewed most advantageously for plaintiff on defend |