permission to a lot owner to construct a private sewer therein, but
cannot authorize him thereby to maintain a nuisance. (Ohio St.)
City of Mansfield v. Bristor, 852.
17. MUNICIPAL CORPORATIONS-Nuisance, Liability for not
Abating. A municipal corporation is liable for damages in not abat-
ing a nuisance on land in its possession and under its control, and
also where such nuisance consists of a private sewer maintained in
one of its public streets by its permission. (Ohio St.) City of
Mansfield v. Bristor, 852.
18. MUNICIPAL CORPORATIONS, Watercourse, When not Liable
for Failure to Exercise Control Over.-A municipal corporation given
by law control of a watercourse is not liable for not abating a nui-
sance therein. Whatever authority is given the city is merely a
delegation of the police power, and for a failure to exercise that
power a municipality is not answerable to a private action. (Ohio
St.) City of Mansfield v. Bristor, 852.
Municipal Ordinances, injunction against the enforcement of void,
irreparable injury, enjoining the enforcement of to prevent, 376,
377.
multiplicity of suits. enjoining the enforcement of to prevent,
375, 376.
not yet declared void, whether may be enjoined, 373.
validity of, whether may be determined in chancery, 373.
vested rights, protection of as against void, 377, 378.
void, actions at law to determine the invalidity of, 373.
void, criminal prosecutions under, whether may be enjoined, 374.
NAMES-Identity of Persons.-Identity of names prima facie
establishes identity of persons. (Mich.) Atwood v. Sault Ste.
Marie Light etc. Co., 576.
See Contracts, 4; Deeds, 1.
WATERS, STREAMS, Navigability of cannot be Determined
by the Legislature.—The declaration of a state legislature cannot im-
press upon a stream the character of navigability for logs, when the
stream does not in fact carry water sufficient to float a single log.
(Idaho) Potlatch Lumber Co. v. Peterson, 233.
1. NE EXEAT.-While the Statutes of Wisconsin recognize the
writ of ne exeat, and regulate the practice, its functions and the
grounds upon which it issues must be determined by a reference to
the common law. (Wis.) Davidor v. Rosenberg, 986.
2. NE EXEAT.-At the Common Law Ne Exeat was simply a
writ to obtain equitable bail. (Wis.) Davidor v. Rosenberg, 986.
3. NE EXEAT-When and for and Against Whom to Issue.-At
the Common Law the Writ of ne exeat issued by a court of equity
on the application of the complainant against the defendant when it
appeared that there was a debt positively due, certain in amount
or capable of being made certain, on an equitable demand not suable
at law, save in cases of account and perhaps some other cases of
concurrent jurisdiction, and that the defendant was about to depart
from the realm under circumstances which would render a decree
ineffectual. (Wis.) Davidor v. Rosenberg, 986.
4. NE EXEAT is Issued Only Against a Debtor Who is a Party
to the Suit. It does not issue against one who is not a debtor,
whether he is a party to the suit or not. (Wis.) Davidor v. Rosen-
berg, 986.
5. NE EXEAT does not Issue Against the Plaintiff in a suit on
the application of a defendant who has interposed no counterclaim.
(Wis.) Davidor v. Rosenberg, 986.
Ne Exeat, abolition of by statutes, 898, 899.
affidavits for must be positive respecting the demand, 995.
affidavits for, what must state, 995.
affidavits for, who may make, 995.
against executors or administrators, 992.
against whom may issue, 994.
amendment of, bills or affidavits for, 995.
application for may be by bill or upon affidavits, 994.
bond before issuing, failure to file, 996.
bond or security required to be filed before the issuing of, 996.
certainty in the amount of the debt on account of which may
continuance of in force after the final judgment, 989.
courts which may issue writs of, 994.
debts or demands on account of which may issue, 990, 992.
discharge or release of the defendant after the issuing of, 997.
discretion of the court in granting or refusing, 990.
design to depart or to remove property from the state is essential
to support, 991.
equitable claims, may issue on account of, 991, 992.
fraudulent purpose of the defendant, whether must be shown on
application for, 996.
in suits for alimony or maintenance, 993.
in suits for an accounting, 992.
is not a prerogative writ in the United States, 989, 990.
issue of against a person not present in the state, 991.
issue of is not restricted to the pendency of the suit, 989.
issuing to prevent the departure of the defendant from the realm
or the state, 991.
legal claims, when do not support the issuing of, 991.
maturity of the debt, whether necessary to authorize, 990.
miscellaneous demands on account of which may issue, 993.
nonresidents, when may issue against, 994.
prerequisites to the issuing of, 990.
proceeding to obtain, 994.
purposes of at the common law, 989.
return of the writ of, 997.
security which must be given after arrest under, 997.
service of the writ of, 997.
statutes abolishing, 898.
unliquidated demands, issuing of on account of, 991.
was a prerogative writ, 989.
whether and where a writ of right, 989, 990.
Ne Exeat whether impliedly abolished by statutes providing for ar-
rest and detention, 989.
1. NEGLIGENCE IMPUTABLE.-The negligence of the driver
of a vehicle is not to be imputed to a guest riding with him gratu-
itously and personally in the exercise of the care which ordinary
caution requires. (Mass.) Shultz v. Old Colony Street Ry. Co.,
502.
2. NEGLIGENCE OF DRIVER, When Precludes Recovery by a
Person Riding with Him.-If one riding as a guest is injured by the
negligence of a third person and the negligence of the driver, there
can be no recovery therefor by the guest, if, in the exercise of com-
mon prudence, he ought to have given some warning to the driver
of carelessness on his part which the guest observed, or might have
observed, in the exercise of due care for his own safety, nor if he
negligently abandoned the exercise of his own faculties and trusted
entirely to the vigilance and care of the driver. (Mass.) Shultz
v. Old Colony Street Ry. Co., 502.
3. NEGLIGENCE, CONTRIBUTORY-Injury
owner of lumber piled upon a river bank in the usual way is not
liable, in the absence of negligence on his part, for an injury to a
bright and intelligent child, eight years of age, who unnecessarily
and without invitation exposes herself to accident by playing upon
such lumber. (La.) Lynch v. Knoop, 391.
NEGLIGENCE, CONTRIBUTORY.-The Doctrine of "the
Last Chance" is applicable only in exceptional cases, and the pre-
vailing habit of incorporating it in almost every charge to a jury
in negligence cases, in connection with, and even as a part of, in-
structions on the subject of contributory negligence, is misleading
and dangerous. (Ohio St.) Drown v. Northern Ohio Traction Co.,
5. NEGLIGENCE, CONTRIBUTORY.-The Last Chance Doctrine
can be Applied Only where the negligence of the defendant is proxi-
mate and that of the plaintiff remote; for if the plaintiff and the
defendant are both negligent, and their negligence is concurrent and
directly contributes to produce the accident, then the case is one of
contributory negligence, pure and simple; but if the plaintiff's negli-
gence merely put him in a place of danger and stopped there, not
actively continuing until the moment of the accident, and the plain-
tiff either knew of the danger, or by the exercise of such diligence as
the law imposes upon him would have known of it, then if the plain-
tiff's negligence did not concurrently combine with the defendant's
negligence to produce the injury, the defendant's negligence is the
proximate cause of the injury, and that of the plaintiff is a remote
cause. (Ohio St.) Drown v. Northern Ohio Traction Co., 844.
See Death; Electricity; Highways.
Negligence. See Street Railways.
NEGOTIABLE INSTRUMENTS.
See Bills and Notes.
1. APPELLATE PROCEDURE.-If the Amount Involved in an
Error is Trifling Compared with the Whole Judgment, a new trial may
be refused. (Conn.) Barker v. Lewis Storage etc. Co., 141.
2. APPELLATE PROCEDURE.-The Decision of a Trial Judge
Denying a New Trial will be sustained on appeal if it appears by the
record that there was some evidence upon which the jury could reason-
ably have found the issue submitted to them in favor of the respond-
ent, and could properly have awarded damages to the amount named
in their verdict. (Conn.) Wyeman v. Deady, 152.
NEXT FRIEND.
See Infants, 2.
1. NUISANCE.-A Poolroom or Turf Exchange, maintained to
facilitate betting on horseraces, is a common-law nuisance, whether or
not such betting is prohibited by statute. (Ark.) State v. Vaughan,
29.
2. NUISANCE-Poolroom.-An Injunction will not lie at the in-
stance of the state to restrain the maintenance of a poolroom which is
a public nuisance, if it does not affect private property rights or public
privileges. (Ark.) State v. Vaughan, 29.
3. NUISANCE, Joint Liability for, When does not Exist.—A ri-
parian proprietor who has been injured by the pollution of a stream
by the acts of several may not, in a suit against one, recover against
him for the entire injury, excepting to the extent that the jury may
mitigate the amount of recovery by considering the evidence tend-
ing to show the extent to which the acts of others have contributed.
(Ohio St.) City of Mansfield v. Bristor, 852.
See Municipal Corporations, 14-18.
Nuisance, continuance of, liability for, 878.
definition of private, 869.
joinder of defendants in suits or actions for, 873-875.
private, care and precaution do not prevent liability for, 870.
private, definition of, 869.
private, effect of the fact that other persons also maintain, 870.
private, equitable relief against, when not a matter of right, 879.
private, injunction against, right to must be clear, 880.
private, injunction against, laches in seeking, 882.
private, injunction against, when not a matter of right, 879.
private, injunction against when the nuisance tends to promote
public convenience, 884.
private, injunction against will not issue unless the injury is ir
reparable, 881.
private, injunction may be sought against two or more maintain-
ing by separate acts, 878.
private, intent, whether material, 869.
private, joinder of defenses in suits to abate, 878.
private, joint liability for, 873-876.
private, liability for where two or more persons join in maintain.
ing, 873-876.
private, licenses from municipalities cannot authorize, 872.
private, locality as affecting the question of, 870, 871.
Nuisance, private, malice in maintaining, 870.
private, municipal ordinances, whether may authorize, 872.
private, negligence is not essential to create liability for, 870.
private, persons liable for maintaining, 872.
private, statutes, acts authorized by cannot constitute, 871.
private, statutes declaring acts to be, whether conclusive, 872.
private, statutes, when deemed to authorize, 871.
private, two or more persons causing or maintaining, liability of
for, when several, 873-875.
protest against is not necessary, 877.
public, joint liability for maintaining, 876, 877.
public, liability for where two or more persons join in maintain-
ing, 876, 878.
1. OFFICES-When Incompatible. It is not an essential element
of incompatibility at common law that the clash of duty should
exist in all or in the greater part of the official functions. If one
office is superior to the other in some of its principal or important
duties, so that the exercise of such duties may conflict, to the public
detriment, with the exercise of other important duties, then the
offices are incompatible. (Wis.) State v. Jones, 1042.
OFFICES-When Incompatible.—The Offices of County Judge
and justice of the peace are incompatible, so that a county judge loses
his right of office by qualifying as a justice of the peace and entering
upon his duties as such. (Wis.) State v. Jones, 1042.
3. OFFICER-Liability for Acts of Appointee.-A chief of police
is not liable for the acts of a dogcatcher whom he appoints, unless
he fails to exercise reasonable care in the selection of the appointee.
(Ark.) Casey v. Scott, 80.
See Specific Performance; Vendor and Vendee.
Options for the purchase of real property, acceptance of, what is
sufficient, 597, 598.
for the purchase of real property, assignment of rights under,
599, 600.
for the purchase of real property, consideration necessary to sup-
port, 597.
for the purchase of real property contained in leases of, 597, 599.
for the purchase of real property, election to accept, duty of
giver upon, 593, 594.
for the purchase of real property, existence of entitles party to
specific performance, 593.
for the purchase of real property, from a lessor to a lessee, 598,
599.
for the purchase of real property, mutuality of arises on accept-
ance, 595.
for the purchase of real property, mutuality of, want of is not
fatal to, 594, 595.
for the purchase of real property, specific performance of, 592,
593.
for the purchase of real property, tender under, 598.
for the purchase of real property, time is of the essence of, 598.
for the purchase of real property, waiver of by delay, 598.
for the purchase of real property, when converted into contracts
of sale, 595.
for the purchase of real property, withdrawal of, 593.
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