Nonsuit. Notes. on the minutes of the court, and errors of law 8. A notice of motion for a new trial, directed against the "findings" rather than against the "decision" of the court, is sufficient, as under Code Civil Proc. §§ 632, 633, the findings constitute the decision.-Haight v. Tryon, (Cal.) 34 P. 712. Abandonment of application. 4. The presentation of a formal motion for a new trial in writing, and the withdrawal thereof, and substitution of another, does not constitute a withdrawal of the notice of intention to move for new trial, nor an abandonment of the proceeding.-Wastl v. Montana Union Ry. Co., (Mont.) 34 P. 844. Misconduct of jury. 5. Code Civil Proc. § 296, subd. 2, provides for a new trial whenever one or more of the jurors shall have been induced to assent to a verdict by a resort to the determination of chance, and that such misconduct may be shown by affidavits of the jurors. Held, that a verdict will be set aside on an affidavit of a juror that an agreement was entered into by the jury to arrive at the result by a "quotient verdict," and that he was induced to assent to the verdict because of the agreement so made and carried out, though the affidavits of other jurors are that the quotient so arrived at was used as a basis of discussion as to the amount of the verdict.-Gordon v. Trevarthan, (Mont.) 34 P. 185. Accident and surprise. Notice. Notice to sureties before entering judgment on bond, see "Appeal," 108. before reviving judgment, see "Judgment" Of election, see "Elections and Voters." 2. NOVATION. What constitutes. 1. A lumber firm agreed with two of its members to sell them sawed lumber at a certain price. The two members formed a new firm, and one of them sold his interest in the contract to the other, and the latter sold interests therein to two strangers. The old firm continued to sell to the purchasing concern utder the agreement, and to receive payment therefrom, without regard to its personnel, the bills being in all instances made out in the name of the purchasing concern. There was no evidence of any agreement to release the original contractors. Held, that there was no novation, and the lumber firm could sue or of the purchasing members for an accounting without joining his new associates in the p chasing contract.-Chapin v. Brown, (Cal) 34 P. 525. tract of sale, on which some payments re 2. A purchaser of land assigned the conmained due, to a third person, whom he then introduced to his vendor as the man to whom he had resold the land. Such assignee then 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 a ground for new trial, does not include ig- it made no difference to him; that he work norance, mistakes, nor misapprehension of an make the deed to whoever made the last payattorney, 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 became torney, through design, ignorance, or 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 the ground of newly-discovered evidence unless such evidence is very clear and satisfactory, and likely to affect the result.-Baumgarten v. Hoffman, (Utah.) 34 P. 294. 8. In an action to foreclose a mortgage, defendants claimed that alterations had been made after execution, and plaintiff testified that he went, immediately after the acknowledgment, from the notary's office to the re corder's office. Defendants, after judgment for plaintiff, moved for a new trial on the ground of newly-discovered evidence that the mortgage was acknowledged at least an hour before it was recorded, and that one P., who occupied a part of the office of defendant, saw plaintiff make alterations after acknowledgment. Held, that where, from the issue, defendants had reason to believe that plaintiff would deny that the alterations were made after execution, they failed to use due diligence in getting such evidence, and the motion for new trial was properly overruled.-Harralson v. Barrett, (Cal.) 34 P. 342. 9. An affidavit of counsel, on information and belief, for new trial for newly-discovered evidence, is insufficient. - Cole v. Thornburg, (Colo. App.) 34 P. 1013. Nomination. See "Elections and Voters," 3-6. NUISANCE. Liquor nuisance, see "Intoxicating Liquors," 5. per se a nuisance, though it may become such Rights of individual with respect to 2. The erection of a dam across a naviga ble stream, though a nuisance, will not be enjoined on application of one sustaining no spe cial or personal injury thereby.-Esson v. Wattier, (Or.) 34 P. 756. Oath. Administration to witness, see "Witness," 1 OBSTRUCTING JUSTICE. Information. 1. An information for resisting an officer charged that defendant did "knowingly, willfully, and unlawfully resist him, one J., a dep uty sheriff, duly appointed, qualified and acting as such." Held, that the informa- 2. An information for resisting an officer Obstruction. Of highway, see "Highways," 4, 5. OFFICE AND OFFICER. See, also, "Clerk of Court;" "Judge:" "Justices County officers, see "Counties," 1-3. Liability on treasurer's bond because of moneys Presumption as to performance of duty by offi- 1. Where one, without the qualification of elected to the office of chief of police of a Resignation and removal. point the police commissioner of the city, by Change of compensation during term. 7. The fact that the persons duly elected no Liability for moneys lost by failure of bank-Effect of bond. 8. Where the clerk of court, as such, de- 2. Under Denver City Charter, § 45, the Opinion Testimony. Orders. and that the cause must be stated in writing. See "Practice in Civil Cases," 3. Removal by governor. 3. Const. art. 4, § 6, which provides that Ordinance. the governor "may remove such officer for in- Of cities, see "Municipal Corporations," 10-15. office," applies only to officers whose offices are Ouster. whose offices are created by law, but whose Of cotenant, see "Tenancy in Common," 1 established by the constitution, and to officers 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. suspension and removal, by the governor, for See "Evidence," 25-32. 981. 4. Const. art. 12, § 1, provides that "every PARTIES. See, also, "Ejectment," 8. Action to enforce lien, see "Mechanics' Liens," In action to determine water rights, see "Irri- 1. Where a mortgage made in the form of mortgage given to secure the same.-Hutchison | Evidence of. 2. Rev. St. § 2395, providing that any per- 8. A complaint is not necessarily defective in which there is united with some defendants another against whom no liability is shown, and an order overruling a demurrer for misjoinder of parties is not reversible error if the rights of the parties have not been prejudiced. -Asevado v. Örr, (Cal.) 34 P. 777. Waiver of objections. 4. An objection as to misjoinder of parties plaintiff cannot be raised for the first time on appeal.-Moore v. Vickers, (Colo. App.) 34 P. 257. 6. Under Code Proc. § 156, providing that any person may before the trial intervene in any action or proceeding who has an interest in the matter in litigation, in the success of either party, or an interest against both, a creditor who has attached certain property of his debtor cannot intervene in opposition to the appointment of a receiver in an action by other creditors against the same debtor.-State v. Superior Court of Snohomish County, (Wash.) 34 P. 430. Substitution. 1. The declarations of one person that a other is his partner are incompetent against the latter to charge him as a partner. Johnston t Clements. 25 Kan. 376, followed.-Howard 1 Woodward, (Kan.) 34 P. 348. Dissolution, settlement, and accounting of an alleged partnership between plaintiff an: 2. Where, in an action for the dissolutive defendant and for an accounting, it appeas sale of all the merchandise for which plain-f that plaintiff gave defendant a complete biof asks an accounting, and delivered possessic thereof to defendant, who sold it with plaint. concurrence, and that an agreement for an counting was had, and the receipt of all dus admitted by plaintiff, the complaint was pre erly dismissed.-Gibson v. Glover, (Colo. Ap 34 P. 687. Actions against. 3. Garnishment to secure a claim against a partnership cannot be maintained against a partner individually.-Jones v. Langhorne, (Crida Sup.) 34 P. 997. 4. In an action against two persons as partners for services in packing goods, proof mere? that defendants were joint owners of the goods does not entitle plaintiff to recover.-Miller v. Vermurie, (Wash.) 34 P. 1108. 5. Where a petition alleges in general terma that two persons are liable for the price of goods purchased by them, and the answer of one is a general denial, without any attack upon the petition that the facts as to the joint liability were not fully and definitely stated, the admission of proof showing that the joint liability arose through a partnership of the par ties is not material error.-Howard v. Woodward, (Kan.) 34 P. 348. Action at law between partners. 6. Where two persons agree to each f nish one-half the money to purchase real e tate, each to have a half interest in the des and the title is taken in the name of one, who afterwards sells the land at an increased price, a recovery in an action for money had and received against the person holding the tide cannot be defeated on the ground that the transaction related to a partnership which is unsettled, and not the subject of an action at aw.-Coffin v. McIntosh, (Utah,) 34 P. 247. Passengers. 7. Where two suitors seek to recover from a general debtor,-the one upon express contract, and the other upon garnishment,-there is no such identity of claims as is contemplated by Rev. St. § 4109, in order to authorize a sub- See "Carriers." stitution of defendants.-McCauley v. Sears, (Idaho,) 34 P. 814. PARTITION. When allowed. 1. Under Code Proc. § 583, relating to partition, and providing that "the rights of the several parties plaintiffs as well as defendants may be put in issue, tried and determined in such suit." a suit in equity for partition should not be dismissed, as at common law, because defendant is in possession, claiming adversely, but the court should determine the title.-Hill v. Young, (Wash.) 34 P. 144. Pleading. 2. It is not necessary that a complaint for partition allege necessity for a sale in lieu of partition, or that partition cannot be made, as Code Proc. § 584, provides that if such facts appear from the evidence, without allegations in the pleadings, a sale may be ordered.-Hill v. Young, (Wash.) 34 P. 144. PARTNERSHIP. Notice to partner, effect on firm, see "Negotiable Instruments," 3. Right of partner to homestead, see "Homestead," 1. PAYMENT. See, also, "Compromise;" "Release and Dis Of mortgage, see "Mortgages," 5, 6. Voluntary payment. 1 Though payment of interest on a note secured by a mortgage could not be recovered because of a void provision therein, yet, where defendants voluntarily paid such interest under a mistaken belief that they were bound to do it be credited on the principal of the loan.—Har so, they cannot recover it back, or demand that ralson v. Barrett, (Cal.) 34 P. 342. Application. 2. Where an attorney renders services in various matters, and the client makes a partial payment "on account of fees for legal serv ices." the attorney cannot credit the money on certain items of his account, so as to place them beyond controversy.-Hinckley v. Krug, (Cal) 34 P. 118. 3. A claim for materials furnished a cotractor for a building cannot be defeated by proof that the contractor, from money received on his contract, paid the material man more 4. A debt contracted in a foreign country Penalties. For usury, see "Usury." Personal Injuries. See "Damages;" "Negligence." Petition. See "Pleading," 4-6. enjoin defendant from collecting tolls thereon, 4. Under Rev. St. § 2447, providing that a 5. Where a complaint alleges that defend- For formation of sanitary district, see "Munic- of said sum has been paid, a demurrer on the Physicians and Surgeons. Appeal from board of medical examiners, see Contest of will, testimony of physician, see PLEADING. See, also, "Damages," 9, 10; "Fraudulent Con; Action against sureties, see "Principal and for libel, see "Libel and Slander," 6. Alleging estoppel, see "Estoppel." 14, 15. release, see "Release and Discharge," 4. Demurrer, see "Municipal Corporations," 33. Joinder of causes, see "Action." of corporate existence, see "Corpora- General principle of construction. 1. Under Rev. St. § 4207, providing that in 2. A complaint in an action on an ac- Negative pregnant. and 3. In an action in the nature of a quo ground of ambiguity is properly overruled, as 6. In an action by an execution debtor. Demurrer. 7. A joint demurrer by several defendants 8. Under Civil Code, § 222, providing that two counts cannot be sustained if either count 10. An answer wherein defendants "say" 11. In an action on a note, an allegation in 12. Where it appears from the copies of a 13. In an action to foreclose a mortgage described in the mortgage were attached to the realty and were fixtures, was insufficient, since he must be presumed to be in possession and to have knowledge as to such fact.-Gribble v. Columbus Brewing Co., (Cal.) 34 P. 527. 14. Plaintiff's motion for judgment because the answer is evasive is properly denied, where plaintiff's objection to the answer may be overcome by the correction of an evident clerical error which the context shows to be the use of "when" for "where."-Raker v. Bucher, (Cal.) 34 P. 654. amendment will not be allowed, after trial o as to count on plaintiffs' rights, as heirs of B whose estate had not been administered on or distributed, to sue for conversion of property of which they had never been in possess. and which defendant had received under a cotract to which plaintiffs were not parties, as such amendment would raise new issues, wh would probably require a new trial.—Bradley 1, Parker, (Cal.) 34 P. 234. Pleading and proof. 24. Where an action on a contract for com 15. An answer alleging that defendant "destructing a building foundation, less an allow nies any knowledge or information sufficient to ance for deviation from the requirements of the form a belief" as to the allegations of the com- contract, is tried on the theory that a know plaint is defective, as it does not show that he edge by defendant at the time of defective costruction, without objection, might preclude her from insisting on plaintiffs' failure to perform their contract, it is error to exclude evidence the work, was her agent, on the ground that that defendant's husband, who was overseeing such agency was not alleged by plaintiffs-Me Dermott v. Grimm, (Colo. App.) 34 P. 99. could not have obtained such information. · Jones v. Perot, (Colo. Sup.) 34 P. 728. Answer-Inconsistent defenses. 16. In an action for breach of contract, the answer denied the breach alleged, and affirmatively alleged that defendants continued to perform the work provided for by the contract until directed by plaintiffs to desist from so doing. Held, that such defenses were not necessarily inconsistent, and that the court properly refused to strike out the answer for alleged inconsistency in the defense.-Brown v. Porter, (Wash.) 34 P. 1105. Failure to answer cross complaint. 17. In an action for partnership accounting, defendant filed a "cross complaint" which related to the partnership transaction set forth in the complaint, alleged the partnership contract in somewhat different terms, and contained only matters in avoidance, or constituting a defense or counterclaim. Held, the averments of the cross complaint were not admitted by failure of plaintiff to answer, as the cross complaint was really an answer to the complaint, and therefore its averments were deemed controverted, under Code Civil Proc. § 462.Haight v. Tryon, (Cal.) 34 P. 712. Motion to compel election. 18. A cause of action may be stated in different counts in order to meet any possible phase of the evidence, and the pleader will not be required to elect on which count he will proceed.-Remy v. Olds, (Cal.) 34 P. 216. Amendment. 19. Where a defendant, under leave of court, filed a supplemental answer, another judge could not order it stricken from the files be cause not filed in apt time, nor because the case was set for trial before the leave was granted and the answer filed. - Godding v. Colorado Springs Live-Stock Co., (Colo. App.) 34 P. 942, 20. In an action by a mortgagee for conversion of the mortgaged chattels, there is no abuse of discretion in allowing defendant, at the trial, to amend his answer, and to aver that the mortgage was released before defendant took the property.-Irwin v. McDowell, (Cal.) 34 P. 70S. 21. Under Sess. Laws 1889, p. 73, providing that, when facts occurring subsequent to the commencement of an action render it proper, they may, by leave of court, be presented by supplemental pleadings, and issue taken thereon as in case of original pleadings, it was not error for the court to refuse to allow facts occurring subsequent to the commencement of the action to be pleaded as an amendment to the original answer, but to require them to be set out in a supplemental pleading.-Sylvester v. Jerome, (Colo. Sup.) 34 P. 760. 22. It is in the discretion of the trial court to refuse to allow an amendment of the complaint by striking out certain admissions therein, after the report of the referee in the case has been made.-Buno v. Gomer, (Colo. App.) 34 P. 256. 23. Where the complaint in an action for conversion describes plaintiffs as heirs of one 25. Under an answer denying that plantif show that a deed to plaintiff absolute in form ever owned the land in dispute, defendant my P. 696. was a mortgage.-Wenzel v. Schultz, (Cal) 34 26. Evidence only tending to establish pan of an answer which has been stricken out s properly excluded.-City of Santa Ana v. Har lin, (Cal.) 34 P. 224. 27. In an action to condemn land for a street, evidence of irregularities in the preceedings to open the street is properly excal ed where irregularities are not alleged in the answer. City of Santa Ana v. Harlin, (Cal 34 P. 224. Variance. 28. Where a complaint alleges an express contract between plaintiff and defendant, there can be no recovery on proof of a contract be tween defendant and a third person for ph tiff's benefit.-Haynes v. Tacoma, 0. & G. H R. Co., (Wash.) 34 P. 922. of land sold by plaintiff to defendant, plaintif 29. In an action on notes given for the pries cannot escape the effect of having failed to per form by tendering a deed, on the ground tha: it would have been useless, where he has not alleged such excuse. - Underwood v. Tew, (Wash.) 34 P. 1100. 30. Nor, in the absence of proper allegations. can plaintiff show that he has always been ready, willing, and able to perform.-Underwood v. Tew, (Wash.) 34 P. 1100. 31. In an action by real-estate agents to re cover commissions, where the original contract which was set out in the petition recited that a part of the consideration for the land was to be paid in cash, the admission of evidence that the owner subsequently agreed to see as cash a secured note offered by the proposed purchaser does not constitute a material vanance.-Davis v. Lawrence, (Kan.) 34 P. 1051. 32. An action on contract will be dismissed where defendant shows illegality of the m tract by proper cross-examination of plaintifs witnesses, though defendant did not special TM plead such illegality.-Ah Doon v. Smith, Ore 34 P. 1093. 33. In an action to restrain a chattel mort gagee from foreclosing his mortgage, where the complaint proceeds on the theory that the gagee had accepted a deed of the mortgages land in full satisfaction of his debt, and hi promised to discharge the mortgage, the mortg gor is not entitled to an accounting by the rur gagee as to the value of the land, or the pe ceeds realized by him from its sale, since th is not within the issues presented by his e plaint.-Davis v. Hinchliffe, (Wash.) 34 P. 9 Failure to deny execution of instru ment under oath. 34. In an action for money had and received. B., which is merely matter of inducement, an the complaint alleged that defendant had us |