ABANDONMENT.
See ACTIONS, 4.
ABATEMENT.
See ACTIONS, 3.
ACQUIESCENCE.
See CONTRACTS, 3.
1. Where in an action of trespass quare clausum fregit the titles of
both parties were distinctly put in issue, and the only litigated ques-
tion in the case was the title to the land upon which the alleged tres-
pass was committed, resulting in a verdict and judgment for the
plaintiff for the value of timber cut by the defendant from the land
before the action was brought; and during the pendency of the action
a second trespass was committed by the defendant, the rights of the
parties at that time being identical with their rights at the time of
the first cutting: Held, that the judgment in the action of trespass
was conclusive of the title to the land, so far as concerned the plain-
tiff's right to recover, in a chancery suit brought for injunctive re-
lief, the value of or damages for the second cutting; and that this
is true although no plea of liberum tenementum and only the plea
of not guilty, was filed in the cause. 223.
2. In an action trespass quare clausum fregit, under the general
issue of not guilty, evidence of the title of the parties is admissible.
223.
3. Where three contracts identical in terms were entered into,
in all of which the same company was named as the party of the
second part, the parties of the first being different companies,
with no joint, no common interest, and the contracts were entered
into merely for the purpose of controlling and marketing the output
of various coal mines, the ownership of which was wholly separate
and distinct, and to prevent injurious competition: Held, that con-
tracts were several and not joint, and that pleas in abatement filed
by two of three companies in an action of assupsit, to which all
were made parties defendant, should have been sustained. 287.
4. Where a plaintiff relied upon both a specific agreement and a
course of dealing to estop the defendant from setting up a right
under a contract, it was proper for the plaintiff to advance both
theories of his case before the jury, introduce evidence in support of
each, and ask the court to instruct with respect to them; and the
assertion of his right under the specific agreement does not involve
an abandonment of or in any degree diminish his right to rely upon,
the course of dealing which had prevailed between the parties up
to that time. 371.
5. The proper method of raising the question of misjoinder of
actions is by a demurrer to the whole declaration. 513.
6. There is a large class of cases in which the foundation of the
action springs out of the privity of contract between the parties, but
in which, nevertheless, the remedy for the breach or non-perform-
ance of it is indifferently in assumpsit or in case upon tort, as in the
case of bailments, attorneys, surgeons, carriers and the like. But
in the absence of legislation to the contrary, an action of tort will
not lie against the proprietor of a theatre for not keeping or per-
forming his contract of admission to his place of amusement. 513.
7. A substantial compliance with the provisions of section 3286
of the Code is all that is required. It was passed to remedy the well-
known evil of filing sham pleas for purposes of delay, and imposes
no hardship upon the defendant. 570.
8. It is not necessary that the affidavit provided for by section
3286 of the Code shall state in express terms that the affiant is the
plaintiff in the action; it is sufficient if it uses language which
shows that he is the plaintiff. 570.
9. A plaintiff in an action of assumpsit may waive, or be estopped
from asserting his right to have judgment entered in his favor for
the amount claimed by him in the affidavit filed with his declaration,
as provided by section 3286, although the defendant has failed to
comply with the provisions of that section which entitle him to make
defense to the claim asserted. 570.
10. Where a plaintiff had acquired a right to a judgment by com-
pliance with section 3286 of the Code, and it was claimed that he
had waived that right, by manner of attaching account and affidavit
to his declaration; by concealment of the fact that an account and
affidavit had been filed, as disclosed by an alleged conversation with
the deputy clerk; by failure to inform defendant, when opposing
motion for a continuance, that the account and affidavit had been
filed; by not asking the court, when opposing motion for continu-
ance, to correct errors of the clerk in taking rules, and in placing
case upon wrong docket; and by agreeing to and asking for con-
tinuances at terms of court subsequent to setting aside of the office
judgment: Held, that under the facts disclosed by the record plain-
tiff did not waive his right to the judgment. 570.
See NUISANCES, 1.
ADJOURNMENT.
See COURTS, 2, 3.
ADVANCEMENTS.
See TRUSTEES, 1.
See ACTIONS, 7, 8; MECHANICS' LIENS, 2.
See COURTS, 1; CORPORATIONS, 4, 5, 6; EQUITY, 41; PLEADING AND
PRACTICE, 1, 10, 11, 12.
AMUSEMENTS.
See ACTIONS, 6.
ANNEXATION.
See STATUTES, 2.
1. Where the defendant, without objection, allowed the introduc-
tion of evidence as to certain damages, he cannot be allowed to make
objection for the first time in this court, that an instruction per-
mitted the jury to award such damages. 16.
2. A party who acquiesces in a judicial construction of a will by
not objecting or excepting to the manner of distributing the testa-
tor's estate, and by relying on that construction to obtain relief
in a suit brought for the sale of other of the testator's property, is
estopped from appealing from decrces, a reversal of which would
result in the reversal of the decree by which the will was construed.
19.
3. A party cannot except to a commissioner's report on
ground in the trial court and rely upon a wholly different ground
in the appellate court, unless the objection made in the appellate
court is apparent upon the face of the report. 19.
4. Where the plaintiff fails to make out a case of actionable negli-
gence against the defendant it is unnecessary to notice subordinate
assignments of error. 86.
5. Where an instruction given by the court at the request of the
plaintiffs treated the defendants as several wrongdoers, and was
not objected to, the defendants will be treated as having impliedly
assented to the proposition laid down in the instruction, and will not
be heard in the appellate court for the first time to question its
correctness by an assignment of error based upon the refusal of
the trial court to set aside the verdict. 111.
6. This court will not reverse the judgment of the trial court and
grant a new trial because the verdict is contrary to the evidence or
without evidence to support it, except in a case of plain deviation
from or palpable insufficiency of evidence, and not in a doubtful
case merely because the court, if on the jury, would have given a
different verdict. 111.
7. The burden is upon the party asserting a demand in a suit to
show that it is entitled to the items claimed, and where the evidence
is conflicting this court cannot say that the trial court erred in re-
fusing to allow them. 149.
8. Where objection is made to the admission of evidence, but no
bill of exceptions is taken to the ruling of the court admitting it,
the objection must be considered as waived. 160.
9. The burden is upon the appellant to satisfy this court that
there was error to his prejudice in the decree or judgment, and,
failing in this, the decree or judgment will be affirmed. 160.
10. The rule governing the consideration of a case before the
appellate court upon a demurrer to evidence does not require the
court to exclude from consideration evidence favorable to the de-
murrant with which the evidence of the demurree does not conflict.
Such evidence is entitled to the same consideration as if the demur-
rer had not been interposed. 291.
11. The constitutionality of a statute having been upheld without
qualification by previous decisions of the appellate court, that is no
longer an open question in the court's jurisdiction. 311.
12. Where a question is objected to and excluded, the exceptor
must vouch the answer whiih he expected to elicit, else the appellate
court cannot consider the exception. 395.
13. Where a case is heard by a judge in the lower court without a
jury, and the evidence is certified, it is to be heard in the appellate
court as on a demurrer to the evidence. The judgment of the trial
court has the same effect as the verdict of a jury, and the appellate
court will not disturb its finding unless it is plainly against the
evidence, or without evidence. 603.
See JUSTICES of the PEACE, 1; PLEADING AND PRACTICE, 13; Wit-
NESSES, 2.
APPEAL AND SUPERSEDEAS.
See BONDS, 1.
1. This court has jurisdiction to award an appeal in a case in-
volving the legality of an election held under an act of assembly
and the validity of a bond issue therein determined. 311.
ARGUMENT.
See CRIMINAL LAW, 14.
1. Where it was desired by an insolvent company to obtain an
extension of credit for one year from its general creditors, and to
that end an agreement was entered into between the stockholders,
who were also creditors of the company, and its other creditors by
which a deed of assignment of the company's assets was executed
to certain trustees, and the stockholders agreed to subordinate their
rights to be paid any indebtedness due to them from the company
until the other creditors were paid in full: Held, that whatever
right they may have had to demand payment of the indebtedness
due them by the defendant company until its other creditors were
paid in full was waived. 578.
See CONTRACTS, 7; HUSBAND AND WIFE, 2.
See CRIMINAL LAW, 14; DEBT, 1; EQUITY, 29; INTERPLEADER, 1.
1. Where the evidence showed that a draft deposited with a bank
by a depositor of many years standing was deposited as paper and
not as cash, that it was not discounted, but the whole amount placed
to the depositor's credit; that it was the custom among banks to
permit a customer to deposit a draft for collection and to check
upon the amount so credited, the understanding being in such case
that the draft may be charged back to the customer's account at
any time if not paid; that the draft was treated and dealt with by
the depositor and his attorneys as his property, and that protest
was waived: Held, that a verdict of the jury that the draft remained
the property of the depositor, rendered upon proper instructions
and approved by the trial court, cannot be said to be without evi-
dence to sustain it. 46.
See DEBT, 2; EQUITY, 35, 36; EVIDENCE, 1.
BAR EXAMINATIONS.
JUNE, 1912. 659.
1. An appeal and supersedeas bond, under section 3470 of the
Code of 1904, which provides that it shall be for the payment of all
damages, costs and fees, and all actual damages incurred in conse-
quence of the supersedeas, is broad enough to cover damages con-
sisting of depreciation in value of bonds which were not delivered
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