SABELLA et al. v. BRAZILERO. (No. 85.) (Court of Errors and Appeals of New Jersey. June 14, 1915.) Appeal from Supreme Court. Action by Emilia Flaumeia Sabella and others against Lloyd Brazilero. Judgment for plaintiffs (91 Atl. 1032), and defendant appeals. Affirmed. McDermott & Enright, of Jersey City, for appellant. Remsen Cowenhoven, of New Brunswick, for appellees. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Bergen in the Supreme Court. SAVAGE v. STOVER. (No. 61.) (Court of Errors and Appeals of New Jersey. June 21, 1915.) Appeal from Supreme Court. Action by Albert E. Savage against Edward Stover. Judgment for plaintiff (56 N. J. Law, 478, 92 Atl. 284), and defendant appeals. Affirmed. John D. Pierson, of Hoboken, for appellant. Charles H. Burtis, of New York City, for appellee. W. Sheehan, of Worcester, Mass., for respondents. PER CURIAM. These from a decree entered in the Court of Chanare cross-appeals cery. The decree in question so far conforms to the remittitur of this court entered on a review of earlier proceedings in the case, except as to the matter of counsel fees, which was not before us. For the reasons stated in our opinion upon which that remittitur was founded, all of the decree appealed from, except those portions dealing with the matter of counsel fees will be affirmed. As to counsel fees the decree was as follows: "A counsel fee of $5,000 to William A. Smith as guardian ad litem and of counsel with the infant defendants, and a counsel fee of $5,000 to Thomas P. McKenna, and Sheehan & Cutting, of counsel, with Charles R. Lane, together with disbursements to Messrs. McKenna and Sheehan of $500." The allowance of $5,500 to Messrs. McKenna and Sheehan is, in our opinion, without legal justification, and that portion of the decree awarding it must be reversed in toto. The allowance to Mr. Smith we consider excessive, and think $1,500 a reasonable compensation for his services as guardian ad litem of and counsel for the infant defendants. The portion of the decree dealing with this latter allowance will be modified, so as to fix the amount at the sum desig PER CURIAM. The judgment under review in this case will be affirmed, for the reasons given by the Supreme Court in its opinion, except as to the observation to the effect that in law there can be no identity as between an individual and a corporation. Upon the propo-nated. sition thus generally stated we express no opinion. June YOUNG v. STAFFORD. (No. 84.) (Court of Errors and Appeals of New Jersey. 14, 1915.) Appeal from Supreme Court. Quo warranto, on the relation of William H. Young, against Bernard L. Stafford, to determine title to office. Judgment for respondent on demurrer (92 Atl. 286), and relator appeals. Affirmed. Hunziker & Randall, of Paterson, for appellant. John A. Stafford, of Paterson, for appellee. STATE v. KELLY, Sheriff. (Court of Errors and Appeals of New Jersey. Sept. 25, 1914.) Error to Supreme Court. James J. Kelly, Sheriff of Hudson County, was convicted of refusing to receive a prisoner apprehended by a peace officer for misdemeanor, and from a judgment of the Supreme Court (84 N. J. Law, 1, 87 Atl. 128), affirming a conviction, he brings error. Affirmed. Marshall Van Winkle, of JerPER CURIAM. The judgment under review sey City, and John J. Fallon, of Hoboken, for herein should be affirmed, for the reasons explaintiff in error. Robert S. Hudspeth, of Jer-pressed in the opinion delivered by Mr. Justice sey City, for the State. Garrison in the Supreme Court. PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Chief Justice Gummere in the Supreme Court. STATE v. ORRAYE. (Court of Errors and Appeals of New Jersey. Sept. 25, 1914.) Appeal from Supreme Court. Proceeding by the State against Peter Orraye. From the judgment, on writ of error by defendant, in the Supreme Court (84 N. J. Law, 556, 87 Atl. 121), defendant appeals. Affirmed. Thomas S. Henry, of Newark, for appellant. Robert S. Hudspeth, of Jersey City, for the State. DAVIDHEISER v. HAY FOUNDRY & IRON WORKS. (Supreme Court of New Jersey. Nov. 16, 1914.) Proceeding by Mary Davidheiser against the Hay Foundry & Iron Works. There was an award for plaintiff, and defendant brings certiorari. Affirmed. See, also, 94 Atl. 309. Argued before SWAYZE, PARKER, and PALISCH, JJ. Waldron M. Ward, of Newark (Pitney, Hardin & Skinner, of Newark, on the brief), for petitioner. Richard F. Jones, of Jersey City, for prosecutor in certiorari. PER CURIAM. The main question is coverPER CURIAM. The judgment under reviewed by the opinion in American Radiator Comherein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Bergen in the Supreme Court. pany v. Rogge (No. 212) 92 Atl. 85. As to the amount of the award, we think there were facts justifying the finding of the common pleas and under the statute we cannot disturb it. The judgment is affirmed, with costs. This SWAYZE v. LANE et al. (Court of Errors PARKER, J. (concurring). The trial judge and Appeals of New Jersey. June 14, 1915.) adopted the rule of Mayer v. Roche, 77 N. J. Appeal from Court of Chancery. Bill by Fran- Law, 681, 75 Atl. 235, 26 L. R. A. (N. S.) 763, cis J. Swayze, as executor, against Carlisle R. and found specifically that the parties intended Lane and others. From the decree which the law of this state to be applicable. awarded attorney's fees, cross-appeals were tak-finding is supported by evidence and is therefore en. Modified and affirmed. Coult & Smith, of conclusive; so without concurring in the reaNewark, and Gilbert Collins, of Jersey City, for soning of the opinion in American Radiator Co. appellant. Edward M. Colie and John R. Hard- v. Rogge, adopted by the majority in this case, in, both of Newark, Edward S. Atwater, of I think the judgment should be affirmed on the Elizabeth, Charles E. Littlefield and Thomas P. theory of my dissenting memorandum in the McKenna, both of New York City, and John Rogge Case. INDEX-DIGEST KEY NUMBER SYSTEM THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digest, the Key-Number Series and 6 (R.I.) Power to enact Pub. Laws 1908, V. Pub. Laws 1908, c. 1590, 8 752, added by Pub. Laws 1908, c. 1590, § 752, added by ACCEPTANCE. See Gifts, 4; Landlord and Tenant, ACCESSION. (Vt.) Party furnishing granite blocks and ACCORD AND SATISFACTION. (N.J.) Contract, whereby plaintiff, claim- ACCOUNT. See Corporations, 310; Equity, 44, 148, II. PROCEEDINGS AND RELIEF. 22 (Pa.) Where the auditor found that a ACCOUNT, ACTION ON. 21 (Vt.) A plea to a claim on book account ACCOUNT STATED. Pub. Laws 1908, c. 1590, § 751⁄2, added by 1071. ACTION. See Abatement and Revival. I. GROUNDS AND CONDITIONS PRE- 7 (Pa.) Where a plaintiff has a legal right No. Series & Indexes see same topic and KEY-NUMBER II. NATURE AND FORM. of Workmen's Compensation Act, where persons employed in this state were killed on the high seas or the navigable waters of another state.-Kennerson v. Thames Towboat Co., 94 A. 372. Within Jud. Code U. S. § 256, exception to 24 (Md.) The statute allowing equitable pleas does not empower courts of law to cancel or reform contracts, so that, in action to recover the amount covenanted to be paid by a lessee at expiration of term a plea of nonliability because the lease did not represent the in-exclusive jurisdiction over admiralty and maritime cases vested in the federal courts held to tention of the parties was bad.-Nydegger v. Gitt, 94 A. 157. embrace all methods of enforcing rights and redressing injuries known to the common or statutory law. Id. 27 (N.J.Sup.) Where the complaint contained three counts, alleging, respectively, breach of marriage promise, seduction, and assault and battery, held that the action sounded in contract and not in tort.-Breithecker v. Dallas, 94 A. 307. ADJOINING LANDOWNERS. occurring on that part of the sea not under the The state courts have jurisdiction over torts control of a state, and also over torts occurring in the navigable waters of the state.-Id. ADMISSIONS. See Boundaries; Municipal Corporations, See Evidence, 236, 244; Partnership, 49. 671; Waters and Water Courses, 121, 152. 4 (Del.Super.) An owner of land adjoining that upon which there is a building may lawfully excavate to his own line, although endangering such structure.-Moore v. Anderson, 94 A. 771. A landowner, exercising his right to excavate to his line, must do so in an ordinarily skillful manner to avoid injury to buildings on land adjoining, but he is bound to use only ordinary care.-Id. What is the ordinary care and skill that a landowner must exercise in excavating to avoid injury to adjoining buildings depends on the circumstances of each case.-Id. The obligation of one excavating to his line to use ordinary care to avoid injury to adjoining building exists despite any poor construction of such building or its encroachment on excavator's land.-Id. The duty of a landowner intending to excavate to proceed with due care ordinarily requires that he should notify the adjoining landowner that the latter may protect his buildings from injury.-Id. Whether the failure of an excavating landowner to notify the adjoining owner was a want of the ordinary care is for the jury under all circumstances of each case..-Id. A landowner's notice to an adjoining owner that he intends to excavate should give full knowledge of the intended work in time and at a time to enable the adjoining owner to protect his property.-Id. See Costs, ADULTERY. 292; Witnesses, 188. 15 (Vt.) In a prosecution for adultery, instruction held not improper as allowing a conviction to be based merely upon an adulterous disposition between the man and woman and an opportunity for sexual intercourse.-State v. Shaw, 94 A. 434. In a prosecution for adultery, charge construed as charge that there could be no convic tion except for an act committed at the time child was begotten.-Id. ADVERSE POSSESSION. See Waters and Water Courses, 152. I. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General. 13 (Del. Super.) To acquire title by adverse possession, the possession must be exclusive. adverse to the rights of all others, and continued for at least 20 years.-Spicer v. Dashiells, 94 A. 901. (C) Visible and Notorious Possession. 31 (Pa.) To constitute adverse possession, the holder of the record title must have actual notice brought home to him of the adverse claim. O'Boyle v. Kelly, 94 A. 448. (E) Duration and Continuity of Posses sion. Notice by a landowner to an adjoining owner of an intention to excavate does not relieve the excavating owner of the duty to do the work with reasonable care, although the adjoining 57 (Pa.) A party, claiming title by adverse owner fails to protect his building.-Id. possession, must show when his adverse holding began.-O'Boyle v. Kelly, 94 A. 448. In an action against an excavating landowner, by an adjoining owner, for injury to his building, the burden of proof was on the plaintiff to satisfy the jury that the injuries complained of were caused by the excavation.-Id. The failure of a landowner to give notice to an adjoining owner of his intention to excavate may be considered by the jury, with all other facts and circumstances, in determining whether the excavating owner did so with due care and action.-Id. Negligence in excavating of a landowner cannot be presumed because the wall of an adjoining building cracked or slid.-Id. In an action for injury to a building by an excavation on adjoining land, the measure of damages is the amount it would have cost the plaintiff, immediately after the injury, to restore his building.-Id. ADMINISTRATION. See Executors and Administrators. ADMIRALTY. I. JURISDICTION. 2 (Conn.) Jurisdiction of admiralty courts (F) Hostile Character of Possession. 85 (Pa.) A defendant, relying on adverse nal entry was made in an honest belief, based possession, held required to show that his origi on facts furnishing a reason for such belief, that the land had been given him in fee.O'Boyle v. Kelly, 94 A. 448. Where one's possession is shown to have been once subordinate to another's title, it will not be afterwards adjudicated to be adverse, in the absence of positive proof that it became so.-Id. III. PLEADING, EVIDENCE, TRIAL, AND REVIEW. 114 (Pa.) Evidence held insufficient to sustain defendant's contention that her father entered on the land in controversy under a parol gift.-O'Boyle v. Kelly, 94 A. 448. AFFIDAVITS. See Appeal and Error, 960: Arrest, 12, 26; Criminal Law, 957, 958; Intoxicating Liquors, 66; Landlord and Tenant, 230; Mechanics' Liens, 3; New Trial, 150; Pleading, 155, 348; Sales, 14 (Me.) Under Rev. St. c. 89, § 14, and AFFIRMANCE. See Appeal and Error, 1143. AGENCY. See Principal and Agent. ALIMONY. See Constitutional Law, 315; Divorce, 8 (Me.) The alteration of a note by adding 2504; Review; Statutes, 118; Street III. DECISIONS REVIEWABLE. 74 (Md.) An appeal will not lie from an or- 78 (Md.) Orders denying petitions in the (E) Nature, Scope, and Effect of Decision. IV. RIGHT OF REVIEW. (A) Persons Entitled. 27 (Me.) The fact that one of the figures interest in the subject-matter, he has no stand- 29 (Me.) Evidence held not sufficient to sus- 30 (Pa.) Whether the alteration in the in- AMBIGUITIES. See Mines and Minerals, ~62. AMENDMENT. See Appeal and Error, 959; Divorce, ANCILLARY ADMINISTRATION. ANIMALS. See Constitutional Law, 87. 22 (N.J.) A person receiving a mare § 1, and in view of chapter 313, §§ 7, 8, held, V. PRESENTATION AND RESERVA- (A) Issues and Questions in Lower Court, 169 (Pa.) Questions not presented below, 171 (Pa.) A case will not be reviewed on a 172 (Md.) The court, on appeal from an or- 173 (Vt.) Where an estoppel was neither 23 (N.J.) Whether the bailee of a mare was 38 (N.H.) Pub. St. 1901, c. 267, § 1, as ANNULMENT. See Marriage, 57-60. APPEAL AND ERROR. (B) Objections and Motions, and Rulings Thereon. 185 (Vt.) A party may first question on ap- 201 (Pa.) Plaintiff could not predicate er- See Certiorari; Constitutional Law, 50; |