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Funds raised by assessment for certain street paving cannot be used to pay for other paving. Allen v. City of Davenport (Iowa) 532.

A city using funds raised by assessment for street paving to pay for other paving held to increase its indebtedness, within the constitutional provision fixing the limit of indebtedness.-Allen v. City of Davenport (Iowa) 532.

Bonds issued to pay for street paving held invalid where the contract for the paving was void. Allen v. City of Davenport (Iowa) 532.

A misrecital of the statute under which an ordinance authorizing bonds was passed held not to invalidate the bonds.-Allen v. City of Davenport (Iowa) 532.

Certain land in a city held not to be occupied for agricultural purposes, within the statute exempting such land from city taxes.-Allen v. City of Davenport (Iowa) 532.

Taxpayer may sue to restrain city council from paying out money on void contract.Flynn v. Little Falls Electric & Water Co. (Minn.) 38.

§ 13. Claims against corporation.

Where claim against city had been disallowed by failure to act thereon within 60 days, and no appeal had been taken as allowed within 20 days from such disallowance, a subsequent formal disallowance did not revive the right to appeal. -Seeger v. City of Ashland (Wis.) 880.

$ 14. Actions.

Under Comp. St. c. 13a, § 36. statement of claim for injuries by defective sidewalks must describe the place with certainty.-City of Lincoln v. O'Brien (Neb.) 76.

Notice of claim for damages for injuries caused by defective sidewalk held sufficiently specific.-City of Lincoln v. O'Brien (Neb.) 76. Notice to city of injuries caused by defective sidewalk held insufficient.-Benson v. City of Madison (Wis.) 161.

Instruction in action against city and contractor for injuries caused by defective sidewalk held erroneous.-Benson v. City of Madison (Wis.) 161.

Wind held not the proximate cause of an injury caused by glass which it blew from a broken windowpane upon a pedestrian.-Detzur v. B. Stroh Brewing Co. (Mich.) 948. § 2. Contributory negligence.

The doctrine of comparative negligence does not exist in Nebraska.-Missouri Pac. Ry. Co. v. Fox (Neb.) 130.

An instruction that plaintiff was required to use only such care as a reasonable and prudent person would exercise held to excuse an omission to define ordinary care.-Omaha St. Ry. Co. v. Emminger (Neb.) 675. § 3. Actions.

Whether the owner was negligent in leaving broken glass in a window of his building held for the jury.-Detzur v. B. Stroh Brewing Co. (Mich.) 948.

In action for injuries caused by negligence, evidence or precaution to prevent similar injuries after happening of the one complained of is inadmissible.-Green v. Ashland Water Co. (Wis.) 722.

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Remand by appellate court for new trial, see "Appeal and Error," § 30.

§ 1. Nature and scope of remedy. It is not error to refuse to impose payment of costs as a condition of granting a new trial.

MUTUAL INSURANCE COMPANIES. Park v. Electric Thermostat Co. (Minn.) 988.

See "Insurance," § 2.


See "Banks and Banking," § 3.


See "Waters and Water Courses."


Measure of damages, see "Damages," § 2. By particular classes of parties.

See "Carriers," § 1.

Telegraph or telephone companies, see "Telegraphs and Telephones," § 1. Condition or use of particular species of property, works, or machinery.

See "Highways," § 4; "Street Railroads," § 2. Demised premises, see "Landlord and Tenant," § 5.

Contributory negligence.

Of servant, see "Master and Servant," § 7. $ 1. Proximate cause of injury.

The existence of a concurring cause will not relieve defendant if his negligence was the proximate cause of the injury.-Pratt v. Chicago, R. 1. & P. Ry. Co. (Iowa) 1064.

§ 2.


A verdict manifestly against the evidence and the instructions, which are not complained of. is properly set aside.-Battin v. City of Marshalltown (Iowa) 493.

Remarks of counsel, though improper, held no ground for reversal.-Kimball Bros. v. Deere, Wells & Co. (Iowa) 1041.

An affidavit filed in support of the motion for a new trial, stating what certain jurors said to affiant as to their proceedings in the jury room, held hearsay and incompetent to impeach verdict. Stevenson v. Detroit & M. Ry. Co. (Mich.) 247.

Making a new trial in an action for personal injuries dependent on a refusal to remit part of the verdict, where the amount of unliquidated damages is the only question involved, is not error. -Detzur v. B. Stroh Brewing Co. (Mich.) 948. Where the preponderance of evidence against a verdict is great, held an abuse of discretion to deny a new trial.-In re Rivenburgh's Estate (Minn.) 422; Voge v. Penney, Id.

Refusal of new trial to allow plaintiff opportunity to show act of defendant as to the transaction 13 months after action tried held not error.-Smith v. Fletcher (Minn.) 800.

Where motion for judgment notwithstanding the verdict is denied, the party moving is not entitled, as a matter of right, to a new trial.— Cruikshank v. St. Paul Fire & Marine Ins. Co. (Minn.) 958.

Grant of second new trial held, under the evi- | juror, held to show that accused used the words dence, not an abuse of discretion.-Park v. Elec- charged for an unlawful purpose.--State tric Thermostat Co. (Minn.) 988. Dankwardt (Iowa) 495.

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Affidavit in support of motion on ground of An indictment under Code 1873, § 3946, pronewly-discovered evidence should state the na-viding for punishing attempts to influence a ture of such evidence.-German Ins. Co. v. Fred- juror, held not insufficient, as following the lanerick (Neb.) 1106. guage of the statute.-State v. Dankwardt (Iowa) 495.

§ 3. Proceedings to procure new trial. Assignment of error relative to instructions given, if en masse, will be overruled if without force as to one instruction.-McIntyre v. Union Pac. Ry. Co. (Neb.) 57.

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See "Clerks of Courts"; "Judges"; "Justices of the Peace"; "Receivers"; "Sheriffs and Constables."

Corporate officers, see "Corporations," §§ 3, 4. County officers, see "Counties," § 1.

Municipal officers, see "Municipal Corporations," § 11.

State officers, see "States," § 1. Town officers, see "Towns," § 1. § 1. Possession of office.

session from exercising duties of an office, in Injunction does not lie to restrain officer in posaction to test his right thereto.-State v. Alexander (Iowa) 841.


Judgment, see "Judgment," §§ 3, 7.


In criminal prosecutions, see "Criminal Law." $ 4.


Obstruction of a public street by competent At trial, see "Trial," § 2. legal authority is not a nuisance.-City of Omaha v. Flood (Neb.) 379.

2. Public nuisances.

An improvement in a public street is not a nuisance, though it damages adjacent property, and interferes with its enjoyment.-City of Omaha v. Flood (Neb.) 379.

OBLIGATION OF CONTRACT. Laws impairing, see "Constitutional Law," § 5.


An indictment under Code 1873, § 3946, providing for punishing attempts to influence a juror, held to sufficiently charge that accused knew such person was a juror.-State v. Dankwardt (Iowa) 495.

An indictment under Code 1873, § 3946, providing for punishing attempts to influence a


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Separate attachment creditors, who have lost their claims because an officer negligently approved an insufficient bond in replevin against the attaching officer, cannot join in a suit against the replevying officer for damages for such negligence.-Shull v. Barton (Neb.) 132. § 2. New parties and change of parties. A person claiming ownership of property in suit may become a party by intervention at any time before trial, and have his claim adjudicated.-McConniff v. Van Dusen (Neb.) 348.

Under Comp. Laws, § 4886, payee named in certificate of deposit claiming to be owner held entitled to intervene in action by holder against the bank.-Dunn v. National Bank of Canton (S. D.) 111.

Error in making a substitution of plaintiffs does not go to their legal capacity to sue.-Gager v. Marsden (Wis.) 922.

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In partition, portion of property improved by one co-tenant should be allotted to him.-Carson v. Broady (Neb.) 80.

Where co-tenant has improved one portion of the property, and the whole is not susceptible of division, it should be sold, and proceeds divided, after deducting for such tenant the value of the improvements.-Carson v. Broady (Neb.) 80.

Plaintiff's attorney's fees are not taxable as costs where the proceedings are adversary. Oliver v. Lansing (Neb.) 802.

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A community of interest in profits, as such, of a business venture, and not by way of payment for services or other assistance, may constitute partnership.-Gates v. Johnson (Neb.) 407.

§ 2. Mutual rights, and liabilities of partners.

A partner may sue the other members of the firm to set aside conveyances of his interest to them through a third person, induced by fraud. -Weirich v. Dodge (Wis.) 906.

§ 3. Liabilities as to third persons. Petition held to be a declaration against individual members of firm. and not against partnership.-Wigton v. Smith (Neb.) 772.

§ 4. Retirement of partners.

A partner, by executing a note and mortgage to the firm, and afterwards selling all his interest to the firm, held to have conveyed title to the note and mortgage, so as to give the firm power to at once enforce them.-Campbell v. Bane (Mich.) 322.


Party-wall contract construed, and rights of parties to use of wall determined.-National Life Ins. Co. v. Lee (Minn.) 794.


For public lands, see "Mines and Minerals," $ 1.


§ 1. Settlement and removal.

against defendant town for support of pauper Evidence held sufficient to justify verdict by plaintiff.-Town of Lexington v. Town of Sharon (Minn.) 48.

Under Sp. Laws 1881. Ex. Sess. c. 221, as amended by Sp. Laws 1885, c. 71, the village of Le Sueur Center is liable for the support of poor persons residing within its limits.-Town of Cordova v. Village of Le Sueur Center (Minn.) 290.

§ 2. Support and expenses.

A town suing the town of a pauper's residence for his support need not first assert its claim against the pauper's relatives.-Town of Cordova v. Village of Le Sueur Center (Minn.) 430.

To render county liable for supplies furnished pauper, it must appear that they were furnished under authority from one having power to bind county.-St. Luke's Hospital Ass'n v. Grand Forks County (N. D.) 598.

A city aiding a nonresident pauper held not entitled to recover the expenses from the county, without giving notice thereof, as required by Rev. St. 1878, § 1512. as amended by Laws 1895, c. 216, § 1. City of Plymouth v. Sheboygan County (Wis.) 196.


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§ 2. Application.

Payments made for separate accounts, without instructions, held properly applied by the

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A petition framed to meet requirements of Code Civ. Proc. § 129, is sufficient, without an averment of extrinsic facts to show right or title to instrument sued on.-Pollock v. Stanton County (Neb.) 1081.

§ 2. Plea or answer.

Under Code 1873, §§ 2655, 2710, a breach of a warranty in a sale may be pleaded as a defense to an action for the price, after a demurrer to a plea of rescission has been sustained.Thorsan & Cassidy Co. v. Baker (Iowa) 510.

Under Code 1873, § 2657, a count setting up an affirmative defense, and failing to confess

Effect as to property involved, see "Lis Pen- plaintiff's cause of action, is demurrable, though


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In pleading, see "Pleading." § 1.

other parts of the answer admit it.-Jackson v. Independent School Dist. of Steamboat Rock (Iowa) 860.

New matter relied on as constituting an affirmative defense must be pleaded in the answer.-Medland v. Connell (Neb.) 437.

An answer stating that defendant has not sufficient knowledge as to claim of plaintiff, and demanding strict legal proof, presents no issue. -National Life Ins. Co. v. Martin (Neb.) 769.

Denial by defendant of allegations of petition extends, not to the substance, but to the form only. Board of Education of Webster Independent School Dist., No. 101, v. Prior (S. D.) 106.

§ 3. Replication or reply.

A pleading stating that, if a settlement was made, its effect was avoided by mistake, is an admission of the settlement.-North Nebraska Fair & Driving-Park Ass'n v. Box (Neb.) 770.

Material allegation of new matter in an answer is admitted if no reply is made.-Davis v. First Nat. Bank of Grinnell (Neb.) 775. § 4. Demurrer.

To obtain allowance of appeal or writ of error, complaint, held an abuse of discretion to refuse see "Appeal and Error," $ 5.

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On overruling demurrer to plaintiff's amended to allow defendants to serve an answer.-Potter v. Holmes (Minn.) 416.

În demurrer ore tenus to an answer during trial, the answer should be liberally construed.First Nat. Bank v. Pennington (Neb.) 1084.

title plaintiff to some damages held sufficient, as Complaint which states facts sufficient to enclaim is not well founded.-MacBride v. Hitchagainst general demurrer, although part of his cock (S. D.) 1021.

Order overruling demurrer, limiting time to answer to 10 days, and putting case on trial calendar, held within discretion of court.-Hunt v. Miller (Wis.) 874.

Demurrer to complaint, on the ground that plaintiff has not legal capacity to sue, under Rev. St. § 2649, applies only to plaintiff's legal disability, and does not go to the cause of action. -Weirich v. Dodge (Wis.) 906.

Error in substituting plaintiffs in an action is not subject to review on demurrer to the complaint.-Gager v. Marsden (Wis.) 922.

§ 5. Amended and supplemental pleadings.

Permitting an amendment, after verdict, to conform proof of fraud and mistake in a settlement to the pleading, held not error, under Code, §§ 3597, 3598.-Weiland v. Ehlers (Iowa) 855.

A defect in the use of an initial letter, instead of the Christian name of the party, may be amended.-Stever v. Brown (Mich.) 704.

held not error to deny motion to file amended On striking out answer of defendant as sham, complaint.-Hertz v. Hartman (Minn.) 232.

Error in permitting an amendment without notice held cured, where the same amendment was afterwards allowed on notice.-Markell v. Ray (Minn.) 788.

Facts incorporated as an amendment held to constitute a separate cause of action.-Buerstetta v. Tecumseh Nat. Bank (Neb.) 1094.

Allowance of amendments after trial to con

form to the proof held proper.-German Ins. Co. v. Frederick (Neb.) 1106.


When a pledgee of stock wrongfully sells it, the pledgor may sue for the conversion without first tendering the debt or demanding a return of the stock.-Feige v. Burt (Mich.) 928.

A sale of pledged shares by the pledgee, without notice to the pledgor, is a conversion.-Feige v. Burt (Mich.) 928.

The discretion of allowing or refusing amendments is not an arbitrary one, and the controlling principle should be whether a proposed amendment would further the ends of justice.or's note cannot be compelled to produce it in Creditor holding note as collateral for debt-Martin v. Luger (N. D.) 1003. court, and turn it over to debtor while the debt remains unpaid.-Carson v. Buckstaff (Neb.) 670.

Under state of facts set out, held that refusal to allow proposed amendment to an answer was prejudicial error.-Martin v. Luger (N. D.) 1003.


A refusal to permit amendment by setting up Of insurance, see "Insurance."
a new defense held not an abuse of discretion.
-Trustees of St. Clara Female Academy v.
Northwestern Nat. Ins. Co. (Wis.) 893; Same

v. Delaware Ins. Co., Id.; Same v. Millwaukee See "Paupers."
Mechanics' Ins. Co., Id.; Same v. Rockford
Ins. Co., Id.

$ 6. Exhibits.

An answer held not to base the defense on instruments therein referred to imposing the necessity of attaching copies as exhibits.-Jackson v. Independent School Dist. of Steamboat Rock (Iowa) 860.

7. Filing and service.



See "Adverse Possession."

Of demised premises, see "Landlord and Tenant," $$ 5, 7. Of office, see "Officers," § 1.


For purpose of demurrer, copy of complaint Of attorney, see "Principal and Agent." served, and not original on file, will be considered.-Hunt v. Miller (Wis.) 874.

§ 8. Motions.

Motion for more specific statement is the remedy where petition of one who has paid a mortgage for contribution from his co-tenant does not state particulars of payment.-Koboliska v. Swehla (Iowa) 576.

An answer held to present affirmative defenses, and hence not subject to be stricken because it failed to confess plaintiff's cause of action, the remedy being by demurrer.-Jackson v. Independent School Dist. of Steamboat Rock (Iowa) 860.

On motion to strike out an answer as sham, the court may consider the evasive character of defendant's counter affidavits.-Hertz v. Hartman (Minn.) 232.

Where defendant in bar of an action pleaded noncompliance with the statutory condition precedent, and plaintiff pleaded in avoidance that the statute had never been passed, motion for judgment for defendant on the pleadings was improperly sustained.-Webster v. City of Hastings (Neb.) 127.

$9. Issues and proof.

An allegation that a compromise was fraudulent, because defendant falsely represented that he could show the facts were not as claimed. does not admit of proof that one of the false representations was that plaintiff's attorney was offering to settle the case.-Johnson v. Chicago, R. I. & P. Ry. Co. (Iowa) 476.

Averments of new matter in amended answer held put in issue by refiling of reply to original answer.-Crosby v. Bastedo (Neb.) 364.

It is the province of the court to declare on what pleadings a case must be tried. Counsel cannot control the matter.-First Methodist Episcopal Church v. Fadden (N. D.) 615.

§ 10. Waiver of objections.

Jurisdiction of the person is waived by a plea to the merits.-Lowe v. Riley (Neb.) 758.

Error in sustaining demurrer to complaint on the ground that several causes of action are improperly united held waived by dismissing one of the causes.-Tripp v. City of Yankton (S. D.) 580.


Procedure of particular courts, see "Courts."

In particular civil actions or proceedings. See "Account," § 1; "Contempt," § 1; "Ejectment"; "Habeas Corpus." § 1; "Mandamus," § 2; "Real Actions"; "Replevin." Condemnation proceedings, see "Eminent Domain," § 2.

Particular proceedings in actions. See "Abatement and Revival"; "Costs"; "Dismissal and Nonsuit"; "Divorce," § 3; "Evidence"; "Judgment"; "Judicial Sales"; "Jury"; "Limitation of Actions"; "Motions": "Parties"; "Pleading"; "Process"; "Reference"; "Stipulations"; "Trial"; "Venue." Nonsuit, see "Trial," § 4.

Particular remedies in or incident to actions.

See "Attachment"; "Garnishment"; "Injunction"; "Receivers"; "Tender."

Procedure in criminal prosecutions. See "Criminal Law"; "Intoxicating Liquors." 8 4.

Procedure in exercise of special jurisdictions. In equity, see "Equity."

In justices' courts, see "Justices of the Peace," In insolvency, see "Insolvency." § 2.

Procedure on review.

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