_nnexation of contiguous towns.

3. Act April 11, 1893, § 10, relating to the
nnexation of contiguous towns and cities, is
ot obnoxious to Const. art. 10, $$ 3, 7, article
1, §§ 1, 8, or article 15, § 12, relating to taxa-
on and public indebtedness.-Town of Val-
erde v. Shattuck, (Colo. Sup.) 34 P. 947.
mendment of charter--Procedure.

Ordinances and resolutions.

10. Where all the members of the council
were present at a special meeting, except one,
and a resolution was adopted unanimously,
there is no error in admitting testimony of the
clerk of the council that he served a proper
notice of the meeting on all the members, the
notice not having been entered of record.-Gill
v. Dunliam, (Cal.) 34 P. 68.

4. City Charter Spokane, providing that
11. The consolidation act of 1856, § 68, re-
ny proposed amendment must be submitted quiring certain ordinances of the board of su
the city council at one meeting, and resub-pervisors to be presented to the mayor for ap-
itted "at the second regular meeting of the proval before they take effect, does not make
ouncil thereafter." before submission to the the mayor a member of the board of super-
lectors for adoption, does not make an amend- visors, as a "governing body."-Jacobs v. Board
ent invalid because not resubmitted till after Sup'rs City and County of San Francisco, (Cal.)
the second regular meeting of the council" 34 P. 630.
ubsequent to that at which it was first sub-
aitted.-Pierce v. City Clerk of Spokane,
Wash.) 34 P. 428.

ncorporation under void act-Effect of
reincorporation.

5. Act March 27, 1890, provides that noth-
ng therein shall prevent the reincorporation
hereunder of towns which had attempted to
ncorporate under the void act of February 2;
SSS, and empowers such towns to incorporate
inder section 4, relating to reincorporations.
feld, that such incorporation would not validate
prior street-grading assessment, made under
he supposed sanction of the act of 1888.-Town
f Medical Lake v. Smith, (Wash.) 34 P. 835;
Same v. Landis, Id. 836.

Method of government-Election of al-

derman.

6. The state constitution does not impera-
ively require local aldermanic representation in
owns or cities.-Town of Valverde v. Shat-
uck, (Colo. Sup.) 34 P. 947.

Submission of questions to voters.

7. Acts 1891, p. 261, provides that when
city council deems it advisable to borrow
noney or create an indebtedness for municipal
purposes greater than 1% per cent. of the city's
axable property, it shall provide therefor by
ordinance specifying the amount desired to be
created, and the same shall be submitted to
the electors of such city at a special election.
Held, that where such an ordinance submitted
wo distinct propositions,-one to fund $20,000
of old debts, and the other to borrow $5,000
for future purposes,-and only one ballot was
used, so that the voter had no opportunity to
express himself separately as to each, the whole
election was void.-McBryde v. City of Monte-
sano, (Wash.) 34 P. 559.

12. The constitutional requirement that an
ordinance fixing water rates should be passed
by the board "in the manner that other or-
dinances or legislative acts or resolutions are
passed by such body" does not render the may-
or's approval of the ordinance necessary to its
validity, as such ordinance is not included
to be presented to the mayor for approval.-
among those required by Consolidation Act, § 68,
Jacobs v. Board Sup'rs City and County of
San Francisco, (Cal.) 34 P. 630.

Subjects of municipal legislation.
13. An ordinance prohibiting the location of
a livery stable in any block in which a school
building is situated, or in any block which is
opposite to a block in which a school building is
situated, without reference to the manner in
which such stable is constructed, kept, or used,
and without further specifying the distance,
is unreasonable, and cannot be upheld under a
general or incidental grant of authority to the
city.-Phillips v. City of Denver, (Colo. Sup.)
34 P. 902.

Enforcement.

14. Since Gen. St. c. 19, par. 89, authorizes
the commitment, by the police judge of a city
of the second class, of a person convicted of
violating a city ordinance, until he comply
with the judgment and pay costs, it is imma-
terial that the ordinance under which the per-
son is convicted contains no provision for such
commitment.-In re McCort, (Kan.) 34 P. 456.
15. Gen. St. c. 19, par. 68, provides that any
person convicted of violating a city ordinance,
and committed for nonpayment of fine and
costs, may be compelled to work on the streets
and public grounds at such rate per day as the
city council may prescribe. A city ordinance
likewise provided that such person "may" be
compelled to do such work, for which he shall
be credited one dollar for each day's work
done. Held. that there was no obligation to
so employ the person committed, and he could
not claim a credit for time during which he
was not so employed.-In re McCort, (Kan.)
34 P. 456.

Who to fix water rates.

S. 1 Gen. St. § 518, provides for the sub-
mission of charter amendments to the voter by
numbers. City Charter Spokane provides for
the submission of amendments by the city
council to the electors for adoption. Held,
that the fact that amendments voted on were
not numbered when the city council concurred 16. Const. art. 14, § 1, providing that water
therein did not affect their validity, they hav-rates "shall be fixed annually, by the board of
ing afterwards received from the city clerk supervisors or other governing body of such city
numbers by which they were published in the and county, by ordinance or otherwise, in the
election notices, and referred to on the printed manner that other ordinances or legislative acts
ballots, and it not appearing that the result of or resolutions are passed by such body," grants
the election was altered by the absence of the to the board of supervisors of the city and
numbers when the proposed amendments were county of San Francisco the sole power to fix
concurred in by the council.-Pierce v. City the water rates in such city and county.-Ja-
Clerk of Spokane, (Wash.) 34 P. 428.
cobs v. Board Sup'rs City and County of San
Francisco, (Cal.) 34 P. 630.

9. A recital in an ordinance submitting a
proposition to bond the city for the establish-
ment of an electric lighting plant, that said
ordinance was passed in pursuance of a certain
act, is mere surplusage; and where the act re-
cited is no longer in force, but is substantially
re-enacted by the repealing act under which the
ordinance must in fact have been adopted, there
is no ground for an injunction on the bond is
sue.- Lewis v. City of Port Angeles, (Wash.)
34 P. 914.

v.34P.-75

Fire department-Appointment of chief.

17. One elected chief of the fire department
of a city of the fifth class under an ordinance
providing that he shall be elected annually by
members of the department, is not entitled to
hold the position for the year, an ordinance
having in the mean time been passed, to take
effect immediately, providing for the appoint-
ment of the chief of the fire department by the

25. A petition for injuries from a defective sidewalk, alleging that the walk was negligent ly constructed, and that defendant city, well knowing this, had permitted it to remain in a defective condition until after the accident, charges the city with notice of the defect.-P. 53. Lewis v. City of Eskridge, (Kan.) 34 P. 892. Defective drains.

26. A city, in grading an avenue, built an embankment across a creek, and constructed a culvert through it for the passage of the stream. A land company also placed an embankment on its land adjacent to the avenue, through which it constructed a drain of the

ment, a complaint to enjoin a levy of taxes for |
an improvement, which alleges that objections
were filed by such a number of property own-
ers, is not demurrable, since the demurrer ad-
mits the allegation, and in such case the coun-
cil could have no jurisdiction to order the in-
provement.-Armstrong v. Ogden City, (Utah,)
34 P. 53.

Contracts for improvements.

34. A requirement in a street-paving con-
tract that the contractor shall keep the street
in repair for five years imposes an additional
burden on the property owners, and so vitiates
the assessment, unless expressly authorized by
statute. Brown v. Jenks, (Cal.) 32 P. 701,
Excelsior Pav. Co. V. Leach,

-

followed.
(Cal.) 34 P. 116.

ties in the action of the city council, which do
not affect their jurisdiction.-Wilson v. City of
Salem, (Or.) 34 P. 9; Id. 691.

41. A resolution to pave and curb a street
required the city engineer to furnish the coun-
cil with estimates. The estimates, in addition
to the items of paving and curbing, stated, un-
der the head of "grading," that 66 cubic yards
of excavation and 42 cubic yards of embank-
ment would be required. The grading, if taken
from the entire surface of the street, would in-
volve the removal of 1 5-7 inches in depth.
Held, that it would be assumed, from the small
amount of the so-called "grading" required,
that the street had been graded, and that the
grading mentioned in the estimates was merely
the removal of small inequalities in the surface,
and therefore an assessment for the paving and

required grading, which was not mentioned in
the resolution.-Williams v. Bisagno, (Cal.) 34

35. Testimony that the requirement of recurbing was not invalid on the ground that it
pairs did not enhance the amount of the suc-
cessful bid is worthless against the objection
of additional burden, since it may have en-
hanced other bids. Brown v. Jenks, (Cal.) 32
P. 701, followed.-Excelsior Pav. Co. v. Leach,
(Cal.) 34 P. 116.

Necessity of taking bond from con-

tractor.

P. 640.

Enforcement of assessments.

42. In an action by an assignee to enforce
an assessment for a public improvement, which
was against a certain lot, but to an unknown
owner, the fact that the assignment, which de-
scribes the lot, also states that the assess-
ment was to a certain person as owner, does
Gill v. Dunham, (Cal.) 34 P. 68.
not render it inadmissible, as the name of the
alleged owner may be rejected as surplusage.--

36. Under 1 Gen. St. § 2415, (Laws 1887-88,
p. 15,) requiring municipal corporations con-
tracting with any person "to do any work of
vidual, a right of lien would exist under the
any character which, if performed for an indi-
law, or make any improvement for" such mu-
nicipality, to take a bond conditioned for the improvement is merely an incident of the de-
43. The lien of an assessment for a public
payment of laborers, mechanics, and material
men, a city contracting with a person to grade mand, and passes with an assignment thereof.
a street is not required to take a bond, as it is-Gill v. Dunham, (Cal.) 34 P. 68.
only required to do so where the work to be
done is such that, if done for an individual, a
lien would attach in favor of laborers and oth:
ers, and no lien would attach, under Gen. St. §
1663, for labor performed on a street for an in-
dividual. Dunbar, C. J., and Scott, J., dis-
senting. Clough v. City of Spokane, (Wash.)

34 P. 934.

Assessment of benefits.

work so ordered."

work done abutted.

(Cal.) 34 P. 71.

-

*

fendant, in an action to enforce a street assess-
44. A recital in the record on appeal by de-
ment, that plaintiff produced two witnesses
who 'testified that the notice of the improve-
ment "was posted at the time and in the man-
ner required by law, both as to the number
of said notices, the place of posting, and the
time during which the same remained posted,"
sufficiently shows that the law as to posting the
notice was complied with.-Williams v. Bisag-
no, (Cal.) 34 P. 640.

Remedies for erroneous assess-

ments.

37. St. 1889, p. 157, § 7, subd. 8, provides
that "where any work
* is done on
either or both sides of the center line of any
street for one block or less, and further work
opposite to the work of the same class already
45. A sufficient petition was presented in
done is ordered to be done to complete the un- May, 1887, to the mayor and councilmen of
improved portion of said street, the assessment Kansas City, Kan., for the grading of a part
to cover the total expense of said work so or- of a street at the cost of the abutting property
dered shall be made upon the lots or portions
of the lots only fronting the portions of the owners, under Sess. Laws 1887. c. 99, § 4, and
on September 22, 1887, an ordinance was duly
Held, that where a street
such im-
was ordered to be paved for one block, where passed and published authorizing
not already so paved, the assessment was prop-ed in accordance therewith, and the cost there-
provement. Subsequently the street was grad-
erly made on those lots, only, on which the of ascertained against each lot, according to
- McDonald v. Conniff,
the appraised value of the lots contained in
38. St. 1889, p. 166, provides that a diagram each block separately; and notice was given
shall be attached to the assessment, "exhibit- to the owners of abutting property on the 10th
ing each street on which any work has been of January, 1888, of such special assessment,
done, and showing the relative location of each and that it could be paid in 30 days. Like no-
lot to the work done, numbered to correspond tice was given on the 25th of August, 1888,
with the numbers in the assessments, and show- for payment of the improvement on or before
ing the number of feet fronting, or number of September 27, 1888, and the plaintiffs made
lots assessed for said work." Held, that the no objection to such assessment, and did not
diagram need not show on what portion of the attempt to enjoin or otherwise interfere with
street the work was done.--McDonald v. Con- its collection until August, 1891, and at that
niff, (Cal.) 34 P. 71.
time only made a demand on the mayor and
councilmen for a reapportionment of the assess-
ment on the whole length of the street so im-
proved, according to the provisions of the stat-
ute, delaying legal proceedings to compel such
reapportionment until August 22, 1892. Held,
that as plaintiffs at one time had a plain and
adequate remedy by injunction to prevent the
collection of the erroneous assessment, and as
they were guilty of great laches in making
their demand for a reapportionment, manda-
mus would not be granted to compel such reap-
portionment.-Simpson v. City of Kansas City,
(Kan.) 34 P. 406.

39. Under a city charter making each lot
or part liable in whole or in part for the cost,
as the council may determine, of an improve-
ment on the half street in front thereof, and
providing that the council may assess on each
lot or part thereof liable therefor its proportion-
ate share of said cost, it is proper to make an
assessment by the front foot.--Wilson v. City of
Salem, (Or.) 34 P. 9; Id. 691.

40. An abutting property owner, with actual
4 knowledge that the work is being done, cannot
wait till the completion thereof to object to
the method of assessment or other irregulari-

Contributory, see, also, "Carriers," 6; "Master-Tobin. v. Omnibus Cable Co., (Cal.) 34 P. 124

able amount therefor.-Cloud v. Rivord, (Wash.) | specific facts constituting the fraud, and that

34 P. 136.

When indorser's liability accrues.

defendant was influenced by or relied on the
fraudulent acts.-Voorhees v. Fisher, (Utah,)
34 P. 64.

2. A note signed by three as makers was
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 on default in the interest the holder for value" will not justify the admission
whole principal should at once mature, notwith-
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
the maturity expressed in the note. Held that,
since the third maker was no party to the deed,
and so not yet in default on the note, the in-
dorser's estate could not be sued on the note
for the deficiency.-Heisler v. Lyon, (Colo. App.)
34 P. 841.

Bona fide purchasers.

3. Where a note has been transferred by
the payee to a firm of which he is a member,
the firm cannot defeat the defense of fraud,
in an action thereon, on the ground that it
had no notice thereof, as it is chargeable with
the payee's knowledge. Calvert v. Dimon,
(Colo. Sup.) 34 P. 170.

Who entitled to payment-Evidence as
to ownership.

a note of plaintiff for $550, its face value, and
10. Defendant accepted M.'s offer to sell him
sent M. a check in payment, and requested him
to forward the note. M.'s offer was never re-
scinded, nor the mode of payment objected to,
but he did not collect the check nor send de-
fendant the note. Defendant sued on the note,
and on the same day plaintiff paid him the
amount of the note with interest. On the day
after, the note was sent for collection to a bank
in the town where plaintiff and defendant lived,
and, though defendant advised plaintiff that he
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

to plaintiff, who said he would not buy such
notes, because they were given for medical
treatment, and he knew there would be trouble
over them; that plaintiff had himself taken
E.'s treatment, and knew his "no cure, no pay"
plan of business; that, after taking this note,
he said he held the notes as collateral; that he
knew such men as E. were frauds; that, when
E. failed to cure, another note was to be put
in the place of that which was to be surrender-
ed. Held, that he was not a bona fide holder
without notice, and defendants could set up
against him E's fraud in obtaining the note.-
Brook v. Teague, (Kan.) 34 P. 347.

Burden of proof.

5. One who obtains a negotiable instrument
before maturity is presumed, in the absence of
evidence to the contrary, to be a bona fide hold-
er for value.-Voorhees v. Fisher, (Utah,) 34 P.
64.

Guaranty indorsed on note by payee-
Reimbursement of guarantor.

6. Where defendants gave plaintiff and an-
other person a note to secure an indebtedness,
and the note was indorsed and guarantied by the
payees, and the money obtained from a bank,
and when the note became due it was not paid,
but defendants took it up, and gave a new note
directly to the bank, which was also indorsed
and guarantied like the old one, the transactions
show an intent on defendants' part to have the
bank carry the amount of the note on the joint
credit of themselves, as makers, and of plaintiff
and the other payee, as indorsers and guaran-
tees; and, if defendants fail to pay the new
note, plaintiff may recover from them the
amount he is compelled to pay as guarantor.-
Austin v. Hamilton, (Wash.) 34 P. 1097.
Payment.

7. Possession by the maker before ma-
turity, and after it has been in circulation, of
a note payable on or before" a certain date, is
presumptive evidence of its payment. - First
Nat. Bank v. Harris, (Wash.) 34 P. 466.
Option of holder to declare note due-
Answer.

8. In an action on a note an answer al-
leging that a prior holder delivered the note to
plaintiff without consideration, and for the pur-
pose of colluding with the plaintiff to defraud
defendant, is insufficient as failing to state the

of a negotiable promissory note, who alleges
11. Where an action is brought by the payee
that he is the owner and holder thereof, but
who shows by his petition that it was trans-
ferred by indorsement to another, without any
showing of its transfer back to him, and the
defendant answers by a general denial, not veri-
fied, a judgment upon the pleadings, without
evidence of possession or ownership of the note,
cannot be sustained. Hutchison v. Myers,
(Kan.) 34 P. 742.

Pleading.

-

12. In an action on a note made to plain-
tiff, an allegation in the complaint that plain-
tiff is the owner is unnecessary, and may be
treated as surplusage, and a general denial
raises no issue.-Bank of Shasta v. Boyd, (Cal.)
34 P. 337.

New Promise.

See "Limitation of Actions," 15, 16.

Newspapers.

Power of court to forbid publication of testi-
mony, see "Trial," 1.

NEW TRIAL.

Decision on appeal, see "Appeal," 99.
Discretion of trial court in passing on motion,
see "Appeal," 64-71.

Necessity of motion for, see "Appeal," 20, 21.
Review of order granting, see "Appeal," 57.
Time to prepare statement for use on appliea-
tion, see "Appeal," 66.

Statement.

1. Under Code Civil Proc. § 536, which pro-
vides that the trial court shall not extend the
trial to exceed 30 days without consent of the
time for filing a statement on motion for new
adverse party, a statement filed more than 30
days after the first order granting an extension
of the time was made must be stricken from
the record, though it was filed within the time
fixed by subsequent extensions granted by the
court, where such extensions were made with-
out the consent of the adverse party.-Doyle v
Gore, (Mont.) 34 P. 846.
Notice of motion.

2. Code Civil Proc. § 659, subd. 4, provides
that where a motion for a new trial is made