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What constitutes-Frightening horses. 46. A provision in a city charter that the 2. Plaintiff, driving a horse and cart, a levy and collection of taxes shall be made in ac- proached defendant's crossing, when a train sp cordance with the requirements of the "exist. peared on the crossing two feet from the bor ing general law," or of the "general law now in the engine being behind. The horse shied, a. force," means the general law in force when upset the cart. There was a coal shed, wka the tax is levied or collected, and not the gen. was within seven feet of the crossing, and eral law in force at the time of the city's
in- structed a view of all cars more than eight fit corporation. - Newman v. City of North Yn- from the crossing. The evidence as to siga... kima, Wash.) 34 P. 921.
was conflicting. Defendant generalls kepi : 47. Under the charter of the city of Seattle, flagman near the crossing, and the engineer ter which gives the city the right to tax all prop- tified that the flagman signaled him that erty within its limits "which is by law taxable way was clear, from a place behind the wa for territorial and county purposes," such city shed, where the flagman and plaintiff co:11 DA had no authority to impose taxes on the prop- have seen each other. Held, that a verdict for erty of a railroad company which was exempt. plaintiff could not be disturbed.-Carraha 1 ed by general law from taxation for territorial San Francisco Bridge Co., (Cal.) 34 P. 838 and county purposes. -Columbia & P. S. R. Co. Dangerous premises. v. Chilberg, (Wash.) 34 P. 163.
3. The fact that a railroad company se Action against-Averment as to corpo- nected a spur track to a mill with the nur rate existence.
track at one end only, so that it was necessary 48. In an action against a city, its organiza- main track, when it was to be drawn bebio
to use stakes to move a car therefrom to u tion and corporate existence are sufficiently al. the engine, does not show that the company leged by statements as to the public use of streets therein "ever since the organization of to make it liable to servants of the mill owler
was negligent in constructing its roau, si said city, in August, A. D. 1887, as a city of who owned the engine, injured in moriis a the third class." -Lewis v. City of Eskridge, car by staking, where they could have had tha (Kan.) 34 P. 892.
car drawn in front of the engine, and in pa
case the engine could hare taken it fro. Mutual Benefit Insurance. spur track.- Watts v. Hart, (Wash.) 34 P.
771. See "Insurance," 14.
4. Plaintiff's child, two years old, esma! NAME.
from its home, and wandered on the raince
track, distant 40 feet therefrom. In from three Idem sonans.
to five minutes thereafter, it was run over 90. It is no ground for quasbing an indict. injured by a train of defendant's cars Tment that defendant's name of "Barbara" is mother was busy ironing, and did not peroxire spelled therein "Barbra,” since the two names that the child was on the track, and the train are idein sonans. --State v. Haist, (Kan.) 34 P. approaching, until it was too late to rescu: it 453.
The door of the house was open, and there is National Banks.
no fence sufficient to prevent the child fres
going on the track. Held. that it was for the See “Banks and Banking,” 5.
jury to determine whether the mother was gas ty of negligence.--Atchison, T. & S. F. R. Com
v. Calvert, (Kan.) 34 P. 976. Navigable Waters.
5. One is guilty of contributory negligen Enjoining obstruction of navigable stream, see
if he is guilty of want of ordinary care, and the
want of extraordinary care, merely, is no de "Nuisance,” 2.
fense.-Tobin v. Omnibus Cable Co., (Cal. 34
6. Negligence on plaintiff's part, amoustiz
to absence of ordinary care, which, concurrent See "Pleading," 3.
ly with the negligence of defendant, proximate
ly contributes to the injury, is a good defer se NEGLIGENCE.
whether or not defendant, with ordinary or -1.
traordinary care, could have guarded against it Contributory, see, also, “Carriers," ; “Master - Tobin. v. Omnibus Cable Co., (Cal.) 31 P. 124 and Servant,” 27–30; “Railroad Companies," of contributory negligence are so disconnecin
7. Where the facts constituting the defesse 12-14. Defective streets, see "Municipal Corporations," from the facts constituting defendant's Det
gence that it cannot be determined as a matte 23.
of law that the one was the cause or sequence Of attorney, see "Attorney and Client," 24.
of the other, their relation or dependence sboal: Of carriers, see "Carriers," 3-6. Of fellow servants, see "Master and Servant," & Oriental Steamship Co., (Cal.) 34 P. 84.
be submitted to the jury.-Smith v. Occidea:al 18, 19. Of master, see “Master and Servant," 2-10. Burden of proof. Of railroad company, see "Railroad Compa 8. Under Mills' Ann. St. $ 2272, providing nies," 6-20.
that the owners of reservoirs shall be liable for Of vice principal, see "Master and Servant," 17. floods caused by the breaking of embankments,
one injured is not bound, in the first instance What constitutes.
at least, to show negligence on the part of tbe 1. A teamster driving a horse and cart on owner, but, if the owner is not absolutely liahie, a road crossing a railroad track, who is injured it is for him to exonerate himself.-Laris: by his horse shying at the train, is not debarred County Ditch Co. v. Zimmerman, (Colo. Apre! from recovery by the fact that the horse was 34 P. 1111. frightened by the ordinary movement, noise, or appearance of the train, if it further appear that the horse was ordinarily well broken and NEGOTIABLE INSTRUMENTS. gentle, and was permitted, by defendant's negligence in running the train, to come so close to Trovision for attorney's fees. the crossing, before he or bis driver saw the 1. Where a note contains a promise to pay train, thilt said ordinary movement naturally an attorney's fee in case an action is brought frightenel him. Carraher v. San Francisco on it, the holder is not restricted to the stateBridge Co., (Cal.) 34 P. 828.
tory attorney's fee, but may recover a reasoe
able amount therefor.-Cloud v. Rivord, (Wash.) specific facts constituting the fraud, and that
defendant was influenced by or relied on the
fraudulent acts.-Voorhees v. Fisher, (Utah)
34 P. 64.
9. In an action on a note, an allegation in
10. Defendant accepted M.'s offer to sell him
scinded, nor the mode of payment objected to,
but he did not collect the check nor send de-
owned the note, and that he would give plain-
11. Where an action is brought by the payee
tiff, an allegation in the complaint that plain-
tiff is the owner is unnecessary, and may be
treated as surplusage, and a general denial
See "Limitation of Actions," 15, 16.
1. Under Code Civil Proc. § 536, which pro-
vides that the trial court shall not extend the
time for filing a statement on motion for new
the record, though it was filed within the time
court, where such extensions were made with-
Gore, (Mont.) 34 P. 846.
on the minutes of the court, and errors of law
Nonsuit. are relied on, the notice of motion must specify the errors relied on, and "if the notice do not See “Practice in Civil Cases," 1 contain the specifications * the motion must be denied." Held that, where the notice
Notes. does not contain the required specification, it is radically defective, and cannot be amended by See “Negotiable Instruments." adding new specifications after the time for filing it has expired; and if it is so amended, by
Notice. leave of the trial court, after such time has expired, the specifications will not be consider- Notice to sureties before entering judgment on ed on appeal.-Packer v. Doray, (Cal.) 34 P. bond, see “Appeal," 108. 628.
before reviving judgment, see "Judgment" 3. A notice of motion for a new trial, di
29. rected against the "findings" rather than against Of appeal, see "Appeal," 9-14. the “decision" of the court, is sufficient, as un-Of election, see "Elections and Voters.” 2. der Code Civil Proc. $8 632, 633, the findings Of motion for new trial, see "New Trial," 2. 2 constitute the decision.-Haight v. Tryon, (Cal.) When notice to agent imputed to principal, see 34 P. 712.
"Insurance," 8. Abandonment of application. 4. The presentation of a formal motion for
NOVATION. a new trial in writing, and the withdrawal thereof, and substitution of another, does not
What constitutes. constitute a withdrawal of the notice of inten 1. A lumber firm agreed with two of its tion to move for new trial, nor an abandonment members to sell them sawed lumber at score of the proceeding:-Wastl v. Montana Union tain price. The two members formed a per Ry. Co., (Mont.) 34 P. 844.
firm, and one of them sold his interest in the Misconduct of jury.
contract to the other, and the latter sold inter 5. Code Civil Proc. $ 296, subd. 2, pro- continued to sell to the purchasing concert ob
ests therein to two strangers. The old fra vides for a new trial whenever one or more of der the agreement, and to receive paymest the jurors shall have been induced to assent to therefrom, without regard to its personnel, the a verdict by a resort to the determination of bills being in all instances made out in the chance, and that such misconduct may be
name of the purchasing concern. There is shown by affidavits of the jurors. Held, that a verdict will be set aside on an affidavit of a original contractors. Hed, that there was so
no evidence of any agreement to release the juror that an agreement was entered into by novation, and the lumber firm could sue ces the jury to arrive at the result by a “quotient of the purchasing members for an accounting verdict," and that he was induced to assent without joining his new associates in the pas to the verdict because of the agreement so chasing contract.-Chapin v. Brown, (Cal.) 34 made and carried out, though the affidavits of P. 525. other jurors are that the quotient so arrived at was used as a basis of discussion as to the tract of sale, on which some payments re
2. A purchaser of land assigned the cooamount of the verdict.Gordon v. Trevarthan, mained due to a third person, whom he tha (Mont.) 34 P. 185.
introduced to his vendor as the man to whos Accident and surprise.
he had resold the land. Such assignee the 6. “Accident or surprise which ordinary | told the vendor to look to him for the rest of prudence could not have guarded against,” as the payments, to which the vendor replied that à ground for new trial, does not include ig- it made no difference to him; that he woul norance, mistakes, nor misapprehension of an make the deed to whoever made the last par attorney, not occasioned by the adverse party, ment. Held, that there was no novation by nor mismanagement of the defense by the at which the assignee of the contract banne torney, through design, ignorance, negli- | bound for the purchase money yet to be paid. gence.-Holderman v. Jones, (Kan.) 34 P. 352. -Osburn v. Dolan, (Wash.) 34 P. 433. Newly-discovered evidence. 7. A new trial should not be granted on
NUISANCE. the ground of newly-discovered evidence unless such evidence is very clear and satisfactory, Liquor, nuisance, see "Intoxicating Liquors," & and likely to affect the result. - Baumgarten : Prescriptive right to maintain obstruction of Hoffman, (Utah,) 34 P. 294.
street, see “Municipal Corporations," 20. 8. In an action to foreclose a mortgage, Livery stable. defendants claimed that alterations had been made after execution, and plaintiff testified per se a nuisance, though it may become such
1. A livery stable in a town or city is pot that he went, iinmediately after the acknowl- if not constructed, kept, and used in a pmrer edgment, from the notary's office to the recorder's office. Defendants, after judgment Sup.) 34 P. 902.
- Phillips v. City of Denver, (Cola for plaintiff, moved for a new trial on the ground of newly-discovered evidence that the Rights of individual with respect to mortgage was acknowledged at least an hour public nuisance. before it was recorded, and that one P., who 2. The erection of a dam across a navig. occupied a part of the office of defendant, saw ble stream, though a puisance, will not be esplaintiff make alterations after, acknowledg- joined on application of one sustaining no spe ment. Held, that where, from the issue, de cial or personal injury thereby.-Esson r. Wat fendants had reason to believe that plaintiff tier. (Or.) 34 P. 756. would deny that the alterations were made after execution, they failed to use due diligence in getting such evidence, and the motion for
Oath. new trial was properly overruled.-Harralson v. Barrett, (Cal.) 34 P. 312.
Administration to witness, see "Witness," 1 3. An affidavit of counsel, on information and belief, for new trial for newly-discovered OBSTRUCTING JUSTICE. evidence, is insuflicient. — Cole v. Thoruburg, (Colo. App.) 34 P. 1013.
1. An information for resisting an officer Nomination.
charged that defendant did “knowingly, will
fully, and unlawfully resist him, one J., a dep See “Elections and Voters," 3-6.
duly appointed, qualified
Irand acting as such." Held, that the informa- | point the police commissioner of the city, by
trial hy demurrer.-State v. Brown, (Wash.) 34 the power of suspension or removal at any time
for cause stated in writing. but not for polit-
6. Gen. St. § 628, relating to compensation
of city councilmen while acting as a board of
equalization, does not provide that they shall
be entitled to compensation, but merely ex-
cepts them from the prohibition against receive
to be determined by the council. Held, that
cil does not deprive them of compensation,
of the Peace;" “Receivers;" "Sheriffs and crease or diminution of the compensation of
Constables;" "States and State Officers." a public officer during his term of office.--Heilig
Officers de facto.
7. The fact that the persons duly elected
lost by failure of bank, election of remedies, fied, and organized before the votes were can-
vassed by the board of supervisors, and before
ground for questioning in a collateral proceed-
ing their official acts done after such canvass.
- Woodward v. Fruitvale Sanitary Dist., (Cal.)
bank-Effect of bond.
posited, with a bank in good standing, moneys
paid into court pending litigation, he is not lia-
4. Const. art. 12. § 1, provides that "every See, also, "Ejectment,” 8.
ment of an indebtedness to such third party,
mortgage given to secure the same.-Hutchison | Evidence of. r. Myers, (Kan.) 34 P. 742.
1. The declarations of one person that Joinder of defendants.
other is his partner are incompetent against the 2. Rev. St. § 2395, providing that any per- latter to charge him as a partner. Johnson son may be made a defendant who has or claims Clements. 25 Kan. 376; followed.-Hovard : an interest in the controversy adverse to plain- | Woodward, (Kan.) 34 P. 348. tiff, or who is a necessary party to a complete Dissolution, settlement, and accountirr. determination of a question involved, does away with the common-law rule that the administra; of an alleged partnership between plaiotit
2. Where, in an action for the disso! tor of a deceased joint obligor cannot be joined defendant and for an accounting, it apps as defendant with the surviving obligor, in ap action on the contract, unless such survivor is sale of all the merchandise for which plain
that plaintiff gave defendant a complete bine insolvent.--Fisher v. Chadwick, (Wyo.) 34 P. asks an accounting, and delivered possesies 899; Chadwick v. Hopkins, Id.
thereof to defendant, who sold it with plaist. Misjoinder.
concurrence, and that an agreement for 23 8. A complaint is not necessarily defective counting was had, and the receipt of all den in which there is united with some defendants admitted by plaintiff, the complaint was po another against whom no liability is shown, erly dismissed.–Gibson
v. Glover, (Colo. A. and an order overruling a demurrer for mis- 34 P. 687. joinder of parties is not reversible error if the Actions against. rights of the parties have not been prejudiced. -Asevado v. Orr, (Cal.) 34 P. 777.
3. Garnishment to secure a claim against a Waiver of objections.
partnership cannot be maintained against a
partner individually.-Jones v. Langhorne, i Cada 4. An objection as to misjoinder of par- Sup.) 34 P. 997. ties plaintiff cannot be raised for the first time 4. In an action against two persons aspi on appeal.-Moore v. Vickers, (Colo. App.) 34 P. ners for services in packing goods, proof mere's 257.
that defendants were joint owners of the Defect of parties.
does not entitle plaintiff to recover.- Mler f. 8. Where infants are joined with adults Vermurie, (Wash.) 34 P. 1108. as defendants in suits to enforce mechanics' 5. Where a petition alleges in general ters, liens, and the adults seek and obtain a dis- that two persons are liable for the price of missal as to the infants, such adults cannot goods purchased by them, and the answer afterwards complain that the infants are not one is a general denial, without any arze parties. Lee, J., dissenting:-Post v. Miles, (N. upon the petition that the facts as to the res M.) 34 P. 586; Stahlin v. Same, Id.: Mountain liability were not fully and definitely starac Electric Co. v. Same, Id.
the admission of proof showing that the post Intervention.
liability arose through a partnership of the per
ties is not material error.-Howard v. Wood 6. Under Code Proc. $ 156, providing that ward, (Kan.) 34 P. 348. any person may before the trial intervene in any action or proceeding who has an interest Action at law between partners. in the matter in litigation, in the success of 6. Where two persons agree to each to either party, or an interest against both, a nish one-half the money to purchase real es creditor who has attached certain property of tate, each to have a half interest in the de his debtor cannot intervene in opposition to and the title is taken in the name of one, a the appointment of a receiver in an action by afterwards sells the land at an increased prix other creditors against the same debtor:-State a recorery in an action for money had and v. Superior Court of Snohomish County, (Wash.) received against the person holding the site 34 P. 430.
cannot be defeated on the ground that the Substitution.
transaction related to a partnership which is 7. Where two suitors seek to recover from unsettled, and not the subject of an actions a general debtor,-the one upon express con
'aw.-Coffin v. McIntosh, (Utah) 34 P. 247. tract, and the other upon garnishment,—there is no such identity of claims as is contemplated
See, also, “Compromise;" "Release and Dis When allowed.
charge. 1. Under Code Proc. $ 583, relating to par. Of mortgage, see “Mortgages," 5, 6. tition, and providing that “the rights of the Of negotiable instruments, see "Negotiable I several parties plaintiffs as well as defendants struments," 7. may be put in issue, tried and determined in such suit" a suit in 'equity for partition should Voluntary payment. not be dismissed, as at common law, because 1 Though payment of interest on & sota defendant is in possession, claiming adversely, secured by a mortgage could not be recorered but the court should determine the title.-Hill because of a yoid provision therein, yet, wbere v. Young, (Wash.) 34 P. 144.
defendants voluntarily paid such interest under Pleading.
a mistaken belief that they were bound to do 2. It is not necessary that a complaint for it be credited on the principal of the loan.-Har
so, they cannot recover it back, or demand that partition allege necessity for a sale in lieu of ralson v. Barrett, (Cal.) 34 P. 312. partition, or that partition cannot be made, as Code Proc. $ 584, provides that if such facts Application. appear from the evidence, without allegations 2. Where an attorney renders services in in the pleitdings, a sale may be ordered.-Hill | various matters, and the client makes a partial v. Young, (Wash.) 34 P. 144.
payment “on account of fees for legal serr.
ices," the attorney cannot credit the money og PARTNERSHIP.
certain items of his account, so as to place them
beyond controversy.-Hinckley r. Krug, Call Notice to partner, effect on firm, see “Negotia- 34 P: 118. ble Instruments," 3.
3. A claim for materials furnished a coRight of partner to homestead, see “Home tractor for a building cannot be defeated by stead," 1.
proof that the contractor, from money received