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Taxation.

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.

Contributory negligence.

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

P. 124.
Negative Pregnant.

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
34 P. 136.

defendant was influenced by or relied on the
When indorser's liability accrues.

fraudulent acts.-Voorhees v. Fisher, (Utah)
2. A note signed by three as makers was

34 P. 64.
secured by a trust deed by only two of them, the answer that "plaintiff is not an innocent

9. In an action on a note, an allegation in
conditioned that op default in the interest the
whole principal should at once mature, notwith-holder for value” will not justify the admission
standing anything in the notes. The payee be of evidence of facts showing a want of good
ing also beneficiary of the deed, indorsed over faith, but such facts must be distinctly alleged.
the note and assigned the deed.' Default in in- / -Voorhees v. Fisher, (Utah,) 34 P. 64.
terest was made, and the deed foreclosed before Who entitled to payment-Evidence as
the maturity expressed in the note. Held that, to ownership.
since the third maker was no party to the deed,
and so not yet in default on the note, the in a note of plaintiff for $550, its face value, and

10. Defendant accepted M.'s offer to sell him
dorser's estate could not be sued on the note sent M. a check in payment, and requested him
for the deficiency.-Heisler v. Lyon, (Colo. App.) to forward the note. M.'s offer was never re-
34 P. 841.

scinded, nor the mode of payment objected to,
Bona fide purchasers.

but he did not collect the check nor send de-
3. Where a note has been transferred by fendant the note. Defendant sued on the note,
the payee to a firm of which he is a member, and on the same day plaintiff paid him the
the firm cannot defeat the defense of fraud, amount of the note with interest. On the day
in an action thereon, on the ground that it after, the note was sent for collection to a bank
had no notice thereof, as it is chargeable with in the town where plaintiff and defendant lived,
the payee's knowledge. Calvert v. Dimon, and, though defendant advised plaintiff that he
(Colo. Sup.) 34 P. 170.

owned the note, and that he would give plain-
4. Defendants gave a note to one E. for tiff a bond to protect him, plaintiff paid the
future medical treatment, to be returned if a amount of the note with interest to M. Held,
cure were not accomplished, on E.'s fraudulent that it was error to direct a verdict for plaintiff
statements of the standing and personnel of on the ground that defendant did not own the
his "institute,” and of its practice in regard to note when the payment was made to him.
collecting such notes. E. the same day trans- |-Wetzstein v. Joy, (Mont.) 34 P. 876.
ferred the note to plaintiff. It appeared that Actions on.
before this E. had tried to sell some like notes

11. Where an action is brought by the payee
to plaintiff, who said he would not buy such of a negotiable promissory note, who alleges
notes, because they were given for medical that he is the owner and holder thereof, but
treatment, and he knew there would be trouble who shows by his petition that it was trans-
over them; that plaintiff had himself taken ferred by indorsement to another, without any
E.'s treatment, and knew his "no cure, no pay" showing of its transfer back to him, and the
plan of business; that, after taking this note, defendant answers by a general denial, not veri-
he said he held the notes as collateral; that he fied, a judgment upon the pleadings, without
knew such men as E. were frauds; that, when evidence of possession or ownership of the note,
E. failed to cure, another note was to be put cannot be sustained. – Hutchison v. Myers,
in the place of that which was to be surrender- (Kan.) 34 P. 742.
ed. Held, that he was not a bona fide holder
without notice, and defendants could set up

Pleading.
against him E's fraud in obtaining the note. 12. In an action on a note made to plain-
Brook v. Teague, (Kan.) 34 P. 347.

tiff, an allegation in the complaint that plain-

tiff is the owner is unnecessary, and may be
Burden of proof.

treated as surplusage, and a general denial
5. One who obtains a negotiable instrument raises no issue.-Bank of Shasta v. Boyd, (Cal.)
before maturity is presumed, in the absence of 34 P. 337.
evidence to the contrary, to be a bona fide bold-
er for value.- Voorhees v. Fisher, (Utah,) 34 P.

New Promise.
64.

See "Limitation of Actions," 15, 16.
Guaranty indorsed on note by payee-
Reimbursement of guarantor.

Newspapers.
6. Where defendants gave plaintiff and an-
other person a note to secure an indebtedness, Power of court to forbid publication of testi-
and the note was indorsed and guarantied by the mony, see “Trial," 1.
payees, and the money obtained from a bank,
and when the note became due it was not paid,

NEW TRIAL.
but defendants took it up, and gave a new note
directly to the bank, which was also indorsed Decision on appeal, see "Appeal,”' 99.
and guarantied like the old one, the transactions Discretion of trial court in passing on motion,
show an intent on defendants' part to have the see "Appeal," 61–71.
bank carry the amount of the note on the joint Necessity of motion for, see “Appeal," 20, 21.
credit of themselves, as makers, and of plaintiff Review of order granting, see "Appeal," 57.
and the other payee, as indorsers and guaran. Time to prepare statement for use on applica-
tees; and, if defendants fail to pay the new tion, see "Appeal," 66.
note, plaintiff may recover from them the
amount he is compelled to pay as guarantor.-

Statement.
Austin F. Hamilton, (Wash.) 34 P. 1097.

1. Under Code Civil Proc. § 536, which pro-

vides that the trial court shall not extend the
Payment.

time for filing a statement on motion for new
7. Possession by the maker before ma- trial to exceed 30 days without consent of the
turity, and after it has been in circulation, of adverse party, a statement filed more than 30
a note payable "on or before" a certain date, is days after the first order granting an extension
presumptive evidence of its payment. First of the time was made must be stricken from
Nat. Bank v. Harris, (Wash.) 34 P. 466.

the record, though it was filed within the time
Option of holder to declare note due— fixed by subsequent extensions granted by the
Answer.

court, where such extensions were made with-
8. In an action on a note an answer al- out the consent of the adverse party.-Doyle v
leging that a prior holder delivered the note to

Gore, (Mont.) 34 P. 846.
plaintiff without consideration, and for the pur- Notice of motion.
pose of colluding with the plaintiff to defraud 2. Code Civil Proc. $ 659, subd. 4, provides
defendant, is insufficient as failing to state the that where a motion for a new trial is made

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.

Information.

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.

uty sheriff,

duly appointed, qualified

or

manner.

Irand acting as such." Held, that the informa- | point the police commissioner of the city, by
tion would not, after verdict, be adjudged in- and with the advice and consent of the sen-
sufficient on the ground that it did not allege ate; that the governor may, in vacation, fill
that defendant knew J. to be a deputy sheriff, vacancies by appointment, and that all' ap-
bithat objection not having been taken before pointments by the governor shall be made with

trial hy demurrer.-State v. Brown, (Wash.) 34 the power of suspension or removal at any time
hords - P. 133.

for cause stated in writing. but not for polit-
2. An information for resisting an officer ical reasons. Held, the governor's power of
while serving a warrant of arrest on defendant removal extends to officers appointed by and
alleged that the warrant charged defendant with the consunt of the senate, as well as to
"with a crime against the laws of the state,” those appointed in vacation of the senate to
and that it "was duly and regularly issued fill vacancies.-Trimble v. People, (Colo. Sup.)
from a justice of the peace court” of a certain 34 P. 981.
precinct. Held, that the averments as to the Change of compensation during term.
legality of the warrant were sufficient.-State
. Brown, (Wash.) 34 P. 133.

6. Gen. St. § 628, relating to compensation

of city councilmen while acting as a board of
Obstruction.

equalization, does not provide that they shall

be entitled to compensation, but merely ex-
of highway, see "Highways," 4, 5.

cepts them from the prohibition against receive
ing compensation at all, and leaves the matter

to be determined by the council. Held, that
1
OFFICE AND OFFICER. an act taking away the power of a city coun:

cil does not deprive them of compensation,
See, also. “Clerk of Court;" "Judge;" "Justices within Const. art. 2, § 25, forbidding an in-

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
Authority of bank officers, see "Banks and v. City Council of Puyallup, (Wash.) 34 P. 164.
Banking," 1.

Officers de facto.
County officers, see "Counties," 1-3.

7. The fact that the persons duly elected
Liability on treasurer's bond because of moneys as the officers of a sanitary district met, quali-

lost by failure of bank, election of remedies, fied, and organized before the votes were can-
see “Principal and Surety,” 3.

vassed by the board of supervisors, and before
Presumption as to performance of duty by offi- they were officially declared elected, is no
cers, see "Corporations," 23.

ground for questioning in a collateral proceed-

ing their official acts done after such canvass.
Eligibility-Aliens.

- Woodward v. Fruitvale Sanitary Dist., (Cal.)
1. Where one, without the qualification of 31 P. 239.
being a citizen of the United States, has been Liability for moneys lost by failure of
elected to the office of chief of police of a
city, the election will be annulled, and his cer-

bank-Effect of bond.
tificate canceled.-Drew v. Rogers, (Cal.) 34 P. 8. Where the clerk of court, as such, de-
1081.

posited, with a bank in good standing, moneys
Resignation and removal.

paid into court pending litigation, he is not lia-
2. Under Denver City Charter, § 45, the ble, on his official bond for the amount sode-
governor is not required to institute an inves- posited on failure of the bank. Wilson v. Peo-
tigation of a judicial nature before removing a ple, (Colo. Sup.) 34 P. 944.
police commissioner; and the determination of
the governor of the sufficiency of the cause stat-

Opinion Testimony.
ed is conclusire, though the cause may not im-
port wrongdoing to the officer removed, since See “Evidence," 9_21.
the only restrictions on the power of removal
are that it must not be for political reasons,

Orders.
and that the cause must be stated in writing. See “Practice in Civil Cases," 3.
Trimble v. People, (Colo. Sup.) 34 P. 981.
Removal by governor.

Ordinance.
3. Const. art. 4, § 6, which provides that
the governor “may remore such officer for in- Of cities, see "Municipal Corporations," 10-15.
competency, neglect of duty, or malfeasance in
office," applies only to officers whose offices are

Ouster.
established by the constitution, and to officers
whose offices are created by law, but whose Of cotenant, see “Tenancy in Common," 1
appointment or election is not otherwise provid-
ed for; and does not apply to an officer whose
office is created by a statute which provides for

Parol Evidence.
the appointment of the officer, and also for his
suspension and removal, by the governor, for See “Evilerce," 25–32.
cause stated in writing, but not for political
reasons.-Trimble v. People, (Colo. Sup.) 31 P,

PARTIES.
981.

4. Const. art. 12. § 1, provides that "every See, also, "Ejectment,” 8.
person holding any civil office under the state Action to enforce lien, see “Mechanics' Liens,"
or any municipality therein, shall, unless remov 35, 36.
ed according to law, exercise the duties of such In action to determine water rights, see "Irri-
office;" and article 13, $ 3, provides that cer gation," 9, 10.
tain officers shall be liable to removal for mis. In equity, see "Equity,”. 13.
conduct or malfeasance in office "in such man- On appeal, see "Appeal," 22.
ner as may be provided by law." Held, that To foreclosure of mortgage on homestead, heirs
such provisions do not require the legislature of parties, see “Homestead," 4.
to prescribe the procedure leading to removal
before an officer not liable to impeachment can Proper parties,
be removed, and that an officer is removed 1. Where a inortgage made in the form of
"according to law if removed in accordance a trust deed conveys real estate to a trustee for
with a constitutional statute.-Trimble v. Peo- the benefit of a third party, to secure the pay-
ple, (Colo. Sup.) 31 P. 9S1.

ment of an indebtedness to such third party,
5. Denver City Charter, $ 45, (Laws 1893, the latter may maintain an action in his own
A 172.) provides that the governor shall ap- name to recover the debt, and to foreclose the

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

Passengers.
by Rev. St. $ 4109, in order to authorize a sub- See “Carriers."
stitution of defendants.-McCauley v. Sears,
(Idaho,) 34 P. 814.

PAYMENT.
PARTITION.

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

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