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The court will not deprive parents of custody A community of interest in profits, as such, of their children unless they are shown to be of a business venture, and not by way of pay. unfit to perform their proper duties.-Norval v. ment for services or other assistance, may conZinsmaster (Neb.) 373.
stitute partnership.-Gates v. Johnson (Neb.)
407. PAROL EVIDENCE.
§ 2. Mutual rights, and liabilities of
partners. In civil actions, see "Evidence," $ 11.
A partner may sue the other members of the
firm to set aside conveyances of his interest to PARTIES.
them through a third person. induced by fraud.
-Weirich v. Dodge (Wis.) 906. Domicile or residence as affecting venue, "Venue," $ 2.
8 3. Liabilities as to third persons. In action by creditor against insolvent bank, see
Petition held to be a declaration against in“Banks and Banking," 8 1.
dividual members of firm, and not against Necessary parties to action on note, see "Bills partnership.-Wigton v. Smith (Neb.) 772. and Notes," $ 7.
§ 4. Retirement of partners. Rights and liabilities as to costs, see “Costs."
A partner, by executing a note and mortgage $ 1.
to the firm, and afterwards selling all his interIn particular actions or proceedings.
est to the firm, held to have conveyed title to
the note and mortgage, so as to give the firm See "Replevin," $ 2.
power to at once enforce them.-Campbell v. Criminal prosecutions, see "Criminal Law," $ 1. | Bane (Mich.) 322. Foreclosure, see "Mortgages," 88 9–19. On appeal or writ of error, see "Appeal and Error," $82, 4.
PARTY WALLS. Probate proceedings, see “Wills," $ 3.
Party-wall contract construed, and rights of To particular classes of conveyances, contracts, parties to use of wall determined.-National or transactions.
Life Ins. Co. v. Lee (Minn.) 794.
PATENTS. 8 1.
For public lands, see "Mines and Minerals," 8 1. Plaintiffs.
$ 1. Separate attachment creditors, who have lost their claims because an officer negligently ap
PAUPERS. proved an insufficient bond in replevin against s 1. Settlement and removal. the attaching officer, cannot join in a suit against the replevying officer for damages for against defendant town for support of pauper
Evidence held sufficient to justify verdict such negligence.-Shull v. Barton (Neb.) 132.
by plaintiff.-Town of Lexington v. Town of § 2. New parties and change of parties. Sharon (Minn.) 48.
A person claiming ownership of property in Under Sp. Laws 1881. Ex. Sess. c. 221, as suit may become a party by intervention at any amended by Sp. Laws 1885, c. 71, the village time before trial, and have his claim adjudicat- of Le Sueur Center is liable for the support of ed.-McConniff v. Van Dusen (Neb.) 348.
poor persons residing within its limits.-Town Under Comp. Laws, § 4886, payee named in of Cordova v. Village of Le Sueur Center certificate of deposit claiming to be owner held (Minn.) 290. entitled to intervene in action by holder against & 2. Support and expenses. the bank.-Dunn v. National Bank of Canton (S. D.) 111.
A town suiug the town of a pauper's residence
for his support need not first assert its claim Error in making a substitution of plaintiffs against the pauper's relatives.-Town of Cordodoes not go to their legal capacity to sue.-Gager va v. Village of Le Sueur Center (Minn.) 130. v. Marsden (Wis.) 922.
To render county liable for supplies furnished
pauper, it must appear that they were furnishPARTITION.
ed under authority from one having power to § 1. Actions for partition.
bind county.--St. Luke's Hospital Ass'n v. In view of the decree in a suit to partition a
Grand Forks County (N. D.) 598. testator's estate brought before his estate was
A city aiding a nonresident pauper held not settled, held, the widow could not complain that entitled to recover the expenses from the counthe suit was prematurely brought.--Shupe v. ty, without giving notice thereof, as required Bartlett (Iowa) 455.
by Rev. St. 1878, § 1512, as amended by Laws In partition, the court cannot adjudicate con
1895, c. 216, § 1.-City of Plymouth v. Sheboyflicting legal titles.-Carson v. Broady (Neb.) gan County (Wis.) 196. 80. In partition, portion of property improved by
PAYMENT. one co-tenant should be allotted to him.-Car- see “Compromise and Settlement”; “Tender.” son v. Broady (Neb.) 80.
Where co-tenant has improved one portion Subrogation on payment, see “Subrogation." of the property, and the whole is not suscepti- of particular classes of obligations or liabilities. ble of division, it should be sold, and proceeds See "Insurance," $ 14; “Mortgages," $ 7. divided, after deducting for such tenant the Bill of exchange or promissory note, see "Bills value of the improvements.-Carson v. Broady (Neb.) 80.
and Notes," $ 6. Plaintiff's attorney's fees are not taxable as $ 1. Sufficiency. costs where the proceedings are adversary.
Where purchaser of realty deposits money in Oliver v. Lansing (Neb.) 802.
bank to be paid to vendor, who had deposited deed, when liens on property are removed, and
the bank fails. the loss is the purchaser's.PARTNERSHIP.
Hammond v. Edwards (Veb.) 75. 81. The relation.
§ 2. Application. Partnership defined.-Gates v. Johnson (Veb.) Payments made for separate accounts, with
out instructions, held properly applied by the
creditor in chronological order.-People v. Shee- A petition framed to meet requirements of han (Mich.) 88.
Code Civ. Proc. $ 129, is sufficient, without an
averment of extrinsic facts to show right or title $ 3. Recovery of payments.
to instrument sued on.-Pollock v. Stanton CounAfter payment of a disputed claim with
ty (Web.) 1081. knowledge of all the facts, the amount cannot be recovered back as paid under a mistake.-- $ 2. Plea or answer. Lamb v. Rathburn (Mich.) 268.
Under Code 1873, $8 2655, 2710, a breach of A payment by a tenant of disputed rent held a warranty in a sale may be pleaded as a denot under duress.-Lamb v. Rathburn (Mich.) fense to an action for the price, after a demurrer 268.
to a plea of rescission has been sustained.
Thorsan & Cassidy Co. v. Baker (Iowa) 510. PENDENCY OF ACTION.
Under Code 1873, § 2637, a count setting up Effect as to property involved, see "Lis Pen- an affirmative defense, and failing to confess dens."
plaintiff's cause of action, is demurrable, though
other parts of the answer admit it.-Jackson v. PERJURY.
Independent School Dist. of Steamboat Rock
(Iowa) 860. § 1. Prosecution. Form of indictment for perjury contained in
New matter relied on as constituting an afGen. St. 1894, $ 7239, considered. and held that, firmative defense must be pleaded in the anif it was intended to do away with assignments swer.-Medland v. Connell (Neb.) 437. of perjury, it was unconstitutional.-State v. An answer stating that defendant has not Nelson (Minn.) 223.
sufficient knowledge as to claim of plaintiff, and
demanding strict legal proof, presents no issue. PERSONAL INJURIES.
-National Life Ins. Co. v. Martin (Xeb.) 769.
Denial by defendant of allegations of petition See "Negligence."
extends, not to the substance, but to the form Measure of damages, see “Damages," § 2. only.-Board of Education of Webster IndeTo passenger, see “Carriers," 8 2.
pendent School Dist., No. 101, v. Prior (S. D.) To person on or near railroad tracks, see "Rail- 106.
roads," $ 1.
A pleading stating that, if a settlement was crossing railroad, see "Railroads," $ 1.
made, its effect was avoided by mistake, is an admission of the settlement.--Vorth Nebraska
Fair & Driving-Park Ass'n v. Box (Web.) 770. PERSONAL PROPERTY.
Material allegation of new matter in an anSee "Property.”
swer is admitted if no reply is made.-Davis v.
First Nat. Bank of Grinnell (Xeb.) 775.
§ 4. Demarrer. In pleadling, see "Pleading," $ 1.
On overruling demurrer to plaintiff's amended To obtain allowance of appeal or writ of error, complaint, held an abuse of discretion to refuse see “Appeal and Error," $ 5.
to allow defendants to serve an answer.-Pot
ter v. Holmes (Minn.) 416. PHYSICIANS AND SURGEONS. On demnurrer ore tenus to an answer during
trial, the answer should be liberally construed.-In action for malpractice. physician held en- First Nat. Bank v. Pennington Web.) 1084. titled to have his treatment tested by the principles of school of medicine to which he belongs. title plaintiff to some damages held sufficient, as
| Complaint which states facts sufficient to en---Martin v. Courtney (Minn.) 813.
against general demurrer, although part of his Preponderance of evidence in action against claim is not well founded.-MacBride v. Hitchphysician for malpractice held so great that it cock (S. D.) 1021. was an abuse of discretion not to grant a new trial.-Martin v. Courtney (Minn.) 813.
Order overruling demurrer, limiting time to answer to 10 days, and putting case on trial
calendar, held within discretion of court.-Hunt PLEA.
v. Miller (Wis.) 874. In criminal prosecution, see “Criminal Law," Demurrer to complaint, on the ground that $ 3.
plaintiff has not legal capacity to sue. under PLEADING.
Rev. St. $ 2619, applies only to plaintiff's legal
disability, and does not go to the cause of artion. See "Usury."
- Weirich v. Dodge (Wis.) 906. Applicability of instructions to pleadings, see
Error in substituting plaintiffs in an action "Trial," $ 5.
is not subject to review on demurrer to the Allegations as to particular facts, acts, or complaint.-Gager v. Marsden (Wis.) 922. transactions.
§ 5. Amended and supplemental pleadSee "Adverse Possession," $ 3.
ings. In particular actions or proceedings.
Permitting an amendment, after rerdict. to
conform proof of fraud and mistake in a settle. See “Ejectment." $ 2; “Replerin," $ 4.
ment to the pleading, held not error, under (ode. Actions for causing death, see "Death," $ 1.
88 3597, 3598.- Weiland v. Ehlers (Iowa) 855. Foreclosure, see “Mortgages," $$ 9- 19. Indictment or criminal information or complaint,
A defect in the use of an initial letter, insee "Indictment and Information."
stead of the Christian name of the party, may Pleas in criminal prosecutions, see “Criminal be amended.--Stever v. Brown (Mich.) 704. Law," $ 3.
On striking out answer of defendant as sham, Suits to set aside fraudulent conveyances, see held not error to deny motion to file amended “Fraudulent Conveyances," $ 2.
complaint.-Hertz v. Hartman (Minn.) 232. $ 1. Petition.
Error in permitting an amendment without Admissions of petition not denied in the an- notice held cured, where the same amendment swer must be taken as true.- Baker v. Pe- was afterwards allowed on notice.-Markell terson (Neb.) 774.
i v. Ray (Minn.) 788.
Facts incorporated as an amendment held to
PLEDGES. constitute a separate cause of action.-Buerstetta v. Tecumseh Nat. Bank (Neb.) 1094.
When a pledgee of stock wrongfully sells it, Allowance of amendments after trial to con
the pledgor may sue for the conversion without form to the proof held proper. --German Ins. Co. first tendering the debt or demanding a return of v. Frederick (Neb.) 1106.
the stock.-Feige v. Burt (Mich.) 928. The discretion of allowing or refusing amend out notice to the pledgor, is a conversion.-Feige
A sale of pledged shares by the pledgee, withments is not an arbitrary one, and the con
v. Burt (Mich.) 928. trolling 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 Under state of facts set out, held that re- debt remains unpaid.-Carson V. Buckstaff fusal to allow proposed amendment to an an- (Neb.) 670. swer was prejudicial error.-Martin v. Luger
Of insurance, see "Insurance."
POSSESSION. $ 6. Exhibits.
An answer held not to base the defense on in- See “Adverse Possession." struments therein referred to imposing the neces- Of demised premises, see "Landlord and Ten. sity of attaching copies as exhibits.- Jackson v.
ant," 88 5, 7. Independent School Dist. of Steamboat Rock Of office, see "Officers," 1. (Iowa) 860.
POWERS. 8 7. Filing and service.
For purpose of demurrer, copy of complaint Of attorney, see "Principal and Agent." served, and not original on file, will be considered.---Hunt y. Miller (Wis.) 874.
PRACTICE. $ 8. Motions.
Motion for more specific statement is the Procedure of particular courts, see "Courts." remedy where petition of one who has paid a
In particular civil actions or proceedings. mortgage for contribution from his co-tenant does not state particulars of payment.-Kobolis. See “Account," $ 1; "Contempt,” | 1; "Ejectka v. Swebla (Iowa) 576.
ment"; "Habeas Corpus," $ 1; Mandamus,"
$ 2; "Real Actions”; “Replevin." An answer held to present affirmative de Condemnation proceedings, see “Eminent Dofenses, and hence not subject to be stricken be
main," $ 2. cause it failed to confess plaintiff's cause of action, the remedy being by demurrer.- Jackson v.
Particular proceedings in actions. Independent School Dist. of Steamboat Rock See "Abatement and Revival”; “Costs”; “Dis(Iowa) 860.
missal and Nonsuit"; "Divorce," $ 3; "Evi. On motion to strike out an answer as sham, dence"; "Judgment"; "Judicial Sales”; “Juthe court may consider the evasive character of ry"; "Limitation of Actions"; "Motions": defendant's counter affidavits.-Hertz v. Hart- "Parties”; “Pleading"; "Process"; "Referman (Minn.) 232.
ence"; "Stipulations”; “Trial"; "Venue." Where defendant in bar of an action pleaded Nonsuit, see “Trial,” $ 4. noncompliance with the statutory condition
Particular remedies in or incident to actions. precedent, and plaintiff pleaded in avoidance that the statute had never been passed, motion See Attachment";. "Garnishment"; "Injuncfor judgment for defendant on the pleadings
tion"; "Receivers"; "Tender." was improperly sustained.-Webster v. City of Procedure in criminal prosecutions. Hastings (Neb.) 127.
See “Criminal Law”; “Intoxicating Liquors." $ 9. Issues and proof.
8 4. An allegation that a compromise was fraudu- Procedure in exercise of special jurisdictions. lent, because defendant falsely represented that in equity, see "Equity." be could show the facts were not as claimed. In insolvency, see "Insolvency.” does not admit of proof that one of the false In justices' courts, see **Justices of the Peace.” representations was that plaintiff's attorney was / offering to settle the case.-- Johnson v. Chicago,
82. R. I. & P. Ry. Co. (Iowa) 476.
Procedure on review.
See_“Appeal and Error"; "Certiorari," $ 2; Averments of new matter in amended answer
"Exceptions, Bill of"'; “Justices of the Peace,' held put in issue by refiling of reply to original
§ 3; "New Trial." answer.-Crosby v. Bastedo (Neb.) 364. It is the province of the court to declare on
PREFERENCES. what pleadings a case must be tried. Cousel cannot control the matter.-First Methodist Effect of proceedings in insolvency, see “InEpiscopal Church v. Fadden (N. D.) 615.
solvency." $ 2. $ 10. Waiver of objections.
In assignment for benefit of creditors, see "AsJurisdiction of the person is waived by a plea in fraudulent conveyance,
signments for Benefit of Creditors," $ 1.
"Fraudulent to the merits.-Lowe v. Riley (Web.) 7.38.
Conveyances," $ 1. Error in sustaining demurrer to complaint or the ground that several causes of action are im
PREJUDICE. properly united held waived by dismissing one of the causes.- Tripp v. City of Yankton (S. D.) Ground for reversal in civil actions, see "Ap580.
peal and Error." 8 23.
An agreement by one as agent is not direct
evidence of authority in an action against the For insurance, see "Insurance," 88 5, 8. supposed principal, but is admissible to show
plaintiff's understanding on the subject.-Gore PRESCRIPTION.
v. Canada Life Assur. Co. (Mich.) 650.
Evidence held sufficient to go to jury, 'on quesAcquisition of rights, see “Adverse Possession," tion of authority of agent to retain attorney for f 1.
principal.-Bissell v. Moore (Mich.) 931. Establishment of highways, see “Highways,"
Where agent contracts in excess of his au§ 1.
thority, and principal fails to disavow the PRESENTMENT.
same, he ratifies the contract.-Anderson v.
Johnson (Minn.) 26. Of bill or note, see “Bills and Notes." $ 5. of claims against estate of decedent, see “Ex- by principal may be evidence of authority to do
Single act of assumed agent and recognition ecutors and Administrators," $ 4.
similar acts.-Anderson v. Johnson (Minn.) 26.
Where the cashier shipped for plaintiff, in the PRESUMPTIONS.
name of the bank, a car load of wheat, to be In civil actions, see "Evidence," $ 2.
sold on plaintiff's account, and the bank reOn appeal or error, see “Appeal and Error," $ 22. ceived the proceeds, it was liable for them to
plaintiff. Landin Moorhead Nat. Bank
(Minn.) 35. PRINCIPAL AND ACCESSORY.
It is no defense, in an action for money had See “Criminal Law," 8 1.
and received, that defendant has already paid the money to another person through mistake.
-Landin v. Moorhead Nat. Bank (Minn.) 35. PRINCIPAL AND AGENT.
A debtor cannot infer that a person formerly
haring possession of the note and mortgage is See, also, “Attorney and Client”; “Brokers.”
entitled to receive payment therefor when they Admissions by agent, see "Evidence," § 7. have been withdrawn from his hands by the Corporate agents, see “Corporations," § 4. payee.-Dwight v. Lenz (Minn.) 546. Municipal agents, see "Municipal Corporations,"
Evidence held insufficient to show that a 8 11. Payment of note to unauthorized agent, see principal had ratified unauthorized act of his "Bills and Notes," $ 6.
agent in accepting payment.-Smith v. Fletcher
Minn.) 800. § 1. The relation.
Effect of silence or inaction after knowledge An agreement held not to create an exclusive of unauthorized act of agent, as showing ratiselling agency.-William Deering & Co. v. fication, determined.-Smith v. Fletcher (Minn.) Beatty (Iowa) 325.
800. Newspaper publication wherein one advertises Ratification by silence or inaction, after himself as agent of another held inadmissible to knowledge of unauthorized act of his agent, prove agency, unless principal authorized pub- held based on doctrine of equitable estoppel.lication.-Joseph Schlitz Brewing Co. v. Barlow Smith v. Fletcher (Minn.) 800. (Iowa) 1031.
Evidence held to show that an agent had no The testimony of one that he has authority authority from his principal to accept payto contract held inadmissible to prove agency.- ment of a mortgage.-Smith v. Fletcher (Minn.) Gore v. Canada Life Assur. Co. (Mich.) 650. 800. Where negotiable note was payable at a par.
Authority to hire servants for defendant held ticular office, it does not constitute party in to authorize a hiring for such length of time as, charge of office agent of holder to receive under the circumstances, would be reasonable.money, unless the note is in his possession. - Drohan v. Merrill & Ring Lumber Co. (Minn.) Hollinshead v. John Stuart & Co. (N. D.) 89. 957. § 2. Mutual rights, duties, and liabili- tiff's loan agent had authority to receive pay
Evidence held insufficient to show that plainties. An agent who acts for two principals must Budd v. Broen (Minn.) 979.
ment of note and mortgage in her possession.exercise the utmost good faith.-Morey y. Laird (Iowa) 835.
Evidence held insufficient to sustain finding An agent furnishing to his principal machinery that plaintiff's agents had authority to receive owned by him held entitled, where the ma- payment of note and mortgage not in their poschinery was retained by principal, to the reason
session.--Thomas v. Swanke (Minn.) 981. able value of the machinery.--Antiseptic Fiber Agent contracting without authority for anPackage Co. v. Klein (Mich.) 931.
other held not personally liable, unless he is Evidence held to warrant a finding that the Spence (Neb.) 54.
within the terms of the contract.-Brong secretary and treasurer of a corporation was authorized to manage the interests of another A principal accepting profits of unauthorized stockholder.-Church v. Church Cementico ('o. contract of agent held liable to person with Alinn.) 548.
whom contract is made.-Brong Spence Defendant being liable to plaintiff for taking
(Neb.) 54. orders for machinery filled by defendant, it is Unauthorized act of agent must be either immaterial that some of the customers execute adopted or rejected by his principal as a whole. new written orders:-Merriman v. McCormick - United States School-Furniture Co. v. School Harvesting Mach. Co. (Wis.) 880.
Dist. No. 87, Lancaster County Neb.) 62. & 3. Rights and liabilities as to third
Principal will be held to have ratified acts of persons.
agent by knowingly accepting benefit thereof.Instructions to a managing agent held not to
United States School-Furniture Co. v. School authorize him to execute a chattel mortgage.
Dist. No. 87, Lancaster County (Neb.) 62. Edgerly v. Cover (Iowa) 328.
Whether an act is within the scope of an An agent's telegram to his principal, and re- agent's apparent authority is a question of fact. ply thereto, held to constitute authority in the
Holt v. Schneider (Neb.) 1086. agent to effect a settlement.--Hasbrouck v. Authority of a gent to collect principal's debt Western Union Tel. Co. (Iowa) 1054.
held not to include authority to accept note of
debtor to discharge such debt.--Holt v. Schnei
PRIVATE NUISANCE. der (Neb.) 1086.
Ostensible authority to act as agent may be See “Nuisance,” $ 1. inferred where the alleged principal, by lack of ordinary care, causes third persons to act on the
PRIVATE ROADS. apparent agency.-Holt V.
Schneider (Neb.) 1086.
Rights of way, see "Easements.” A principal clothing his agent with apparent general authority held estopped to deny, as
PRIVILEGED COMMUNICATIONS. against third person, such agent's authority.- Disclosure by witness, see "Witnesses,” s 2. Holt v. Schneider (Neb.) 1086.
Payment of principal part of mortgage note after transfer held not justified on the ground
PRIVITY. of ostensible agency of payee.-Hollinshead y. John Stuart & Co. (N. Ď.) 89.
Admissions by privies, see "Evidence," 8 7. PRINCIPAL AND SURETY.
See “Courts," $ 5.
Particular forms of writs or other proce88. on bonds or undertakings in legal proceed. See "Attachment," § 4; “Execution”; “Garnishings, see “Replevin," $ 7.
ment”; “Injunction"; "Mandamus"; “Re$ 1. Nature and extent of liability of
§ 1. Requisites. Sureties on a bond for street improvement Summons from district court need not state held not liable for materials purchased for such nature of action.-German Ins, Co. v. Frederick street, but rejected by inspectors.-People v. (Neb.) 1106. Sheehan (Mich.) 88.
§ 2. Service. Where bank indebted to county becomes in- Affidavit of service of summons by private persolvent, and a receiver is appointed, failure of
son need not state that person on whom service county commissioners to file claim against the
was had was known to be the person on whom bank in insolvency held not to release the sure- l it was required.-Cunningham v. Water-Power ties.-Board of Com’rs of St. Louis County v. Sandstone Co. (Minn.) 137. Security Bank of Duluth (Minn.) 815. Deposit of county funds by county commis- 1 of the use of initials.-German Ins. Co. v. Fred
A return of a writ will not be quashed because sioners in a bank held a deposit under Gen. St. erick (Neb.) 1106. 1894, 88 729-735, payable on demand, and for which, with interest, the sureties on the bond
Evidence held insufficient to show process of the bank were liable.-Board of Com’rs of served by leaving summops at defendant's St. Louis County v. Security Bank of Duluth dwelling house," within Comp. Laws, $ 4898.(Minn.) 815.
Massillon Engine & Thresher Co. v. Hubbard
(S. D.) 588. A surety on a note is liable to the same extent as his principal. - Kroncke Madsen
PROHIBITION. (Neb.) 202.
In action against surety, on note, held error of traffic in intoxicating liquors, see “Intoxicatto charge that surety's liability is to pay only ing Liquors." when that of principal is fixed by judgment, and his property is exhausted.--Kroncke v. Madsen (Neb.) 202.
PROMISSORY NOTES. A surety may stand on the strict terms of See “Bills and Notes." his contract.--First Nat. Bank v. Goodman (Neb.) 756.
PROOF. 8 2. Discharge of surety.
Extension of the time for paying the debt or loss insured against, see "Insurance," $ 11. held to have released the surety-First Nat. Of service of process, see “Process," 8 2. Bank v. Goodman (Neb.) 756. Loans to a building contractor and an ad
PROPERTY. vance to his workmen held not to have been material changes in the contract, so as to avoid Constitutional guaranties of rights of property, a surety's obligation.-Stephens v. Elver (Wis.) see “Constitutional Law," 88 4, 8. 737.
Protection of rights of property by injunction, $ 3. Remedies of creditors.
see “Injunction," 8 1. Code Civ. Proc. & 511, only requires that in Taking for public use, see “Eminent Domain." actions against principal and surety the judg.
Particular species of property. ment shall state which is principal and which See "Fixtures"; "Mines and Minerals." is surety.-Kroncke v. Madsen (Neb.) 202.
It seems that the right of recaption of person§ 4. Rights and remedies of surety. Where the surety of an insolvent is indebted (Neb.) 123.
al property exists in Nebraska.-Barr v. Post to the principal, and he is sued on the debt, he should move for a stay of proceedings until his liability as surety can be determined, an ac- PROVINCE OF COURT AND JURY. tion therefor being pending.-Richardson v. Merritt (Minn.) 234.
In civil actions, see “Trial," $ 5.