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59 (Mo.App.) Whether a negligent act is the proximate cause of injury depends upon whether injury is the natural and probable consequence of the act, which ought to have been foreseen in exercise of ordinary care.Loveless v. Cunard Mining Co., 201 S. W. 375. III. CONTRIBUTORY NEGLIGENCE.

(A) Persons Injured in General.

66 (2) (Mo.App.) A company's employé who went to repair an outside curb at a new building on which he had worked some days before, and, in looking for water, went down a dark stairway well without a light, and fell, there being no handrail, was grossly negligent and could not recover; having built the stairway himself, and having known that there was no rail a few days before.-Shuck v. Security Realty Co., 201 S. W. 559.

83 (Tenn.) Contributory negligence of workman in working in a place apparently dangerous because near heavy smokestack being erected in dangerous manner did not relieve erector from liability for death of workman by fall of the smokestack, where, knowing the workman's position, the erector proceeded with the erection, constantly increasing workman's peril.-Cash v. Casey-Hedges Co., 201 S. W. 347.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes.

NEWLY DISCOVERED EVIDENCE.

calculated to change verdict.-Iverson v. Rowland, 201 S. W. 288.

III. PROCEEDINGS TO PROCURE NEW TRIAL.

150(4) (Ark.) Plaintiff's motion for new trial for newly discovered testimony was prop erly refused, where motion did not set forth facts showing that plaintiff had exercised reasonable diligence.-Iverson v. Rowland, 201 S. W. 288.

164 (Mo.App.) If court should not have set aside verdict and judgment for plaintiffs, as it did, where defendants offered to allow judg ment to go against them for nominal damages, all plaintiffs could obtain on new trial, court should have rendered judgment for plaintiff's for nominal damages.-State ex rel. and to use of Dominick v. Farmer, 201 S. W. 955.

Where judgment for defendants was set aside, court could not properly have rendered judg ment for plaintiffs for nominal damages, in accordance with defendants' offer, had there been any question to be tried in relation to judgment plaintiffs should have.-Id. NOMINAL DAMAGES.

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NON INTOXICANTS.

See Criminal Law, 938-944; New Trial, See Deeds, 193. 108.

See Evidence, 318.

NEWSPAPERS.

NEW TRIAL.

See Appeal and Error,

See Commerce, 64.

NONSUIT.

281-302, 581, 854, See Dismissal and Nonsuit, 19.

979, 981, 1177, 1178; Criminal Law, 911-959, 1064.

I. NATURE AND SCOPE OF REMEDY. 6 (Tex.Civ.App.) It was not an abuse of discretion to deny a new trial for newly discovered evidence on an affidavit that a witness admitted that he lied on the stand, where the witness denied the statement under oath.-Texas & N. O. R. Co. v. Glass, 201 S. W. 730.

II. GROUNDS.

See Dedication.

NONUSER.

NOTARIES.

See Acknowledgment, ~57.

11 (Mo.App.) Where notary negligently certified to identity of mortgagor, but negligence was not proximate cause of relator's loss, which arose from fact no property was in existence from which security could have been had, etc., notary and surety on bond were liable to relator for nominal damages_only.-State ex rel. and to use of Scruggs v. Packard, 201 S. W.

953.

(A) Errors and Irregularities in General. 13 (Ky.) Misconstruction of Supreme Court's opinion on reversal and remand, by lower court and parties, resulting in erroneous judgment of lower court and failure to appeal (Mo.App.) In view of Rev. St. 1909. § therefrom, is not ground for new trial under Civ. Code Prac. § 518.-Jellico Hardware Co. v. Pine Mountain R. Co., 201 S. W. 450. (F) Verdict or Findings Contrary to Law

or Evidence.

73 (Tex.Civ.App.) Conflicting jury findings on question whether mortgage notes were delivered to trustee under trust deed as attorney for collection or to institute foreclosure proceedings as trustee, held to require new trial.Oak Cliff State Bank & Trust Co. v. Conroy, 201 S. W. 699.

10178. under section 10181, remote transferees of note and chattel mortgage had right of action against notary and bondsmen for nominal damages on account of notary's negligence in mistakenly certifying to identity of mortgagor. -State ex rel. and to use of Dominick v. Farmer, 201 S. W. 955.

Where notary negligently certified to identity of mortgagor, and mortgagees indorsed away note and mortgage, remote transferees of note were not estopped to claim nominal damages of notary and bondsmen on ground mortgagees through whom they claimed would be estopped as they introduced purported mortgagor to notary.-Id.

NOTES.

74 (Mo.App.) Where notary's negligent act was not proximate cause of loss, new trial of action against him and his bondsmen could not result in plaintiffs' favor for anything more See Bills and Notes. than nominal damages.-State ex rel. and to use of Dominick v. Farmer, 201 S. W. 955.

(H) Newly Discovered Evidence. 108(1) (Ark.) Plaintiff's motion for new trial for newly discovered testimony was properly refused, where matters set forth were not

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II. PUBLIC NUISANCES.

(A) Nature of Injury, and Liability There

for.

PANDERING.

See Prostitution, 1, 4, 5.

PANEL.

See Jury, 70.

PARENT AND CHILD.

See Adoption; Damages, 186; Deeds,
196;
Fraudulent Conveyances,
Guardian and Ward; Infants.

96;

65 (Tenn.) That a dam erected for the United States in navigable waters created unhealthful conditions by making stagnant pools≈3(2) (Ky.) A parent cannot subject interof water did not make it a nuisance, nor render the contractor liable as for maintaining a nuisance.-Chattanooga & Tennessee River Power Co. v. Lawson, 201 S. W. 165.

OBJECTIONS.

est of infants in land to payment of debts previously incurred for their maintenance and education, where no application had been made to a chancery court.-Nunnelly's Guardian v. Nunnelly, 201 S. W. 976.

14 (Tex.Civ.App.) Neither relationship of

See Appeal and Error, 188-242, 499; Jury, stepdaughter and stepfather nor fact that step~90-103.

OCCUPATION.

See Use and Occupation.

OFFER OF PROOF.

See Trial, ~47.

OFFICERS.

daughter lived in stepfather's home and that he bought her clothing, books, and scholarship in business college, etc., would deprive her of right of ownership in money loaned him by her.-Youngblood v. Hoeffle, 201 S. W. 1057.

As respects stepdaughter's right to money given or paid her by her stepfather for services rendered, and by her loaned to him, it is immaterial whether she had been emancipated by him, or whether, under circumstances, he was in loco parentis to her and entitled to her services.

See Banks and Banking, 54, 55; Bound--Id.
of the
Justices
Judges;
aries, 52;
Peace: Municipal Corporations, 153-185;
Notaries; Public Service Commissions; Quo
Warranto; Receivers.

I. APPOINTMENT, QUALIFICATION,
AND TENURE.

(F) Term of Office, Vacancies, and Hold-
ing Over.

Emancipation of stepdaughter by stepfather does not necessarily make her liable for board and for clothing purchased by him while sh was living with him, where there was no understanding by either that a charge was to be made therefor.-Id.

PARKS.

See Municipal Corporations, 721.

PAROL EVIDENCE.

55(2) (Tex.Cr.App.) When one accepts an incompatible office with the one he holds, he may elect which to abandon, but when a judge accepts an office in the military service of the See Evidence, 400-460. United States, his tenure as judge ceases by direct provision of Const. art. 16, § 12.-Lowe v. State, 201 S. W. 986.

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intervener by 48 (Tex.Civ.App.) Where plea resists plaintiff's alleged rights, in respect to pleading and proof she occupies position of defendant, and must be governed by rules applicable to defendants.-Kinney v. Tri-State Telephone Co., 201 S. W. 1180.

59(4) (Mo.App.) In action for damages by breach of warranty in sale of a cow, where plaintiff's original petition alleged that he bought the cow from defendant, and was against "C. T. H., administrator of estate of E. M. H.," the quoted words should be regarded as mere deSO that an amendment scriptio personarum,

seeking to recover against C. T. H. personally was not a departure.-Blair v. Hall, 201 S. W. 945.

Even if a defendant is sued and brought into court in his representative capacity, the petition

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

may be so amended as to charge him individual- | mistake, degree of proof varying inversely ly.--Id.

V. DEFECTS, OBJECTIONS, AND

AMENDMENT.

88(3) (Mo.App.) Defendant, in suit for recovery of money by demurring to petition on ground of defect of parties, cannot, upon amend ment of petition, demur on ground that such parties are unnecessary.-Puntney v. Mahn, 201 S. W. 913.

PARTITION.

I. BY ACT OF PARTIES.

4 (Ky.) Where two brothers held land jointly, an equal partition was on sufficient consideration.-Sullivan v. Sullivan, 201 S.

W. 24.

with knowledge of matters involved and trust reposed in other by complaining party, but every partner owes duty to disclose all partnership transactions.-Chambers v. Johnston, 201 S. W. 488.

Evidence held to sustain finding of chancellor that partner had no knowledge that transaction was within scope of partnership business, and had not assented to its omission from accounting and settlement.-Id.

(D) Actions for Dissolution and Accounting.

336(3) (Ky.) In partnership accounting, evidence held to sustain chancellor's finding that defendant was entitled to commission on sale of cross-ties, staves, etc., instead of being plaintiff's partner in such transaction.-Ashley v. Hays, 201 S. W. 1.

PART PAYMENT.

II. ACTIONS FOR PARTITION. (A) Right of Action and Defenses. ≈12(1) (Mo.) There could be no partition of an estate by the entirety at common law. See Accord and Satisfaction, 7, 11. Otto F. Stifel's Union Brewing Co. v. Saxy, 201 S. W. 67.

12(5) (Tenn.) Partition between a life ten

PASSENGERS.

ant and remaindermen cannot be decreed. See Carriers, 282-408. Chickamauga Trust Co. v. Lonas, 201 S. W.

777.

(B) Proceedings and Relief. 109(1) (Tenn.) Where a decree of partition between a life tenant and remaindermen is absolutely void, Thomp. Shan. Code, § 4922, protecting purchasers acquiring property before writ of error is obtained and supersedeas granted in case of reversal on appeal, is not applicable.-Chickamauga Trust Co. v. Lonas, 201 S. W. 777.

PARTNERSHIP.

PASTURAGE.

See Damages, 112.

PAYMENT.

See Accord and Satisfaction; Eminent Domain. 155; Executors and Administrators, 214; Subrogation; Tender.

See Evidence, 249; Fraudulent Convey-of

ances, 24.

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I. REQUISITES AND SUFFICIENCY. 9 (Mo.App.) Note legally payable in money debtor to give and creditor to receive somecan be paid in other things only by agreement thing else in satisfaction, which must be actually given and received.-Sutton v. Libby, 201 S. W. 615.

12(1⁄2) (Tex.Civ.App.) Purchaser of automobile for $550, who engaged to pay with lar, impliedly warranted money paid by him was "Constitutionalists' money" at 20 cents on dolvalid currency of particular sort, and in seller's native for price with foreclosure of lien, it is action to recover title and possession, in alterimmaterial whether there were any representations as to genuineness of the money.-Reeves v. Avina, 201 S. W. 729.

It cannot be held, unless clearly shown, that partners did not intend that partnership contract should control conduct of its business and their responsibilities to each other, except, in instances, where they had agreed otherwise.-43 (Ark.) The rule as to application of pay

Id.

(B) Individual Transactions.

97 (Ky.) Where partner enters into transaction which is within scope of partnership business, he must account to firm, although he uses his own money and is liable for losses. Chambers v. Johnston, 201 S. W. 488.

99 (Ky.) Partner need not account to firm for profits of venture outside scope of partnership business, although partnership agreement requires him to devote his entire time to partnership affairs.-Chambers v. Johnston, 201 S. W. 488.

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II. APPLICATION.

ments on an account to the earlier items will not be enforced when contrary to intention of parties.-Terry v. Klein, 201 S. W. 801. IV. PLEADING, EVIDENCE, TRIAL, AND REVIEW.

65(6) (Ark.) The burden is on the debtor to plied. Terry v. Klein, 201 S. W. 801. show to what items payments were to be ap

67 (4) (Ky.) A check in handwriting of and indorsed by payee attorney, "In full of account to date," is conclusive as to all legal services to date thereof, in the absence of other evidence. Fitzpatrick's Committee v. Dundon, 201 S. W. 339.

V. RECOVERY OF PAYMENTS.

84(1) (Mo.App.) Money paid voluntarily with full knowledge of all facts and without fraud cannot be recovered back because of ignorance as to legal liability-Warren v. Order of Railway Conductors of America, 201 S. W. 368.

85(2) (Mo.App.) Where beneficiary recovered judgment against life insurer for death of insured, and insurer satisfied judgment, peyment was involuntary, and may be recovered back on vacation of judgment; it having been

discovered person insured was alive.-Warren ligence was cause of death.-Barrett's Adm'r v. Order of Railway Conductors of America, v. Brand, 201 S. W. 331. 201 S. W. 368.

PECUNIARY CONDITION.

See Criminal Law, 683.

PENALTIES.

See Courts, 8; Criminal Law, Equity, 24; Limitation of Actions, Taxation, 840.

94; 35;

18(10) (Ky.) Court properly instructed, as to liability, after defining defendant surgeon's duty on undertaking operation, "and they (the jury) further believed such negligence or want of care, if any, on part of defendant was proximate cause of death," without adding that decedent's death "was not caused by ovaritis or other disease, if any, not produced by operation."-Barrett's Adm'r v. Brand, 201 S. W. 331.

In action against surgeon for malpractice, II. ACTIONS AND OTHER PROCEED- it was not necessary for court in instructions to define what constituted "operation."-Id.

INGS.

33 (Tex.Civ.App.) One suing to recover a statutory penalty must produce proof that brings his case strictly within the terms of the statute.-Green v. Prince, 201 S. W. 200.

PERJURY.

See Indictment and Information, 159. II. PROSECUTION AND PUNISHMENT. 32(1) (Tex.Cr.App.) In prosecution for perjury, where defendant was not present at first difficulty, but claimed only to have been present when killing occurred, and testified to what he saw, details of first difficulty were in

admissible.-Roberts v. State, 201 S. W. 998. 37(2) (Tex.Cr.App.) In prosecution for perjury, court on request should have given charge defining words "willfully" and "deliberately" in connection with perjury.-Roberts v. State, 201 S. W. 998.

37(3) (Tex.Cr.App.) In prosecution for perjury, where state introduces proceedings in trial on which perjury was committed, if result of such trial was adverse to testimony of defendant charged with perjury, court must limit effect of evidence, otherwise such charge is unnecessary.-Roberts v. State, 201 S. W. 998. PERMIT.

See Mines and Minerals, 6.

PERSONAL INJURIES.

See Assault and Battery; Carriers, 282321; Evidence, 122; Master and Serv101-296; Negligence; Railroads, 2732-282, 390-400.

ant,

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6(10) (Tex.Cr.App.) Under Pen. Code 1911, art. 750, making it unlawful to practice medicine without registering authority with district clerk in county of residence and providing that absence of such record is prima facie evidence of want of such certificate, the state must prove such absence from the record.Denton v. State, 201 S. W. 183.

6(11) (Tex.Cr.App.) Appellant's claim that the evidence shows he was engaged as a masseur and exempted under Pen. Code 1911, art. 754, from the provisions of article 750 requiring registration for practice of medicine, held not sustained as a matter of law; his occupation being for the jury (citing Words and Phrases, vol. 3, Second Series, p. 113).-Denton v. State, 201 S. W. 183.

18(8) (Ky.) In action against surgeon for malpractice in performing operation for ovaritis, evidence held to sustain verdict for defendant, patient's condition having been so precarious it could not be said that any neg

PLEADING.

For pleadings in particular actions or proceed-
ings, see also the various specific topics.
For review of rulings relating to pleadings, see
Appeal and Error.

I. FORM AND ALLEGATIONS IN

GENERAL.

stating

8(15) (Tex.Civ.App.) Allegations the conclusion of fraud, but failing to state any facts constituting the fraud, was insufficient.— Crawford v. El Paso Land Improvement Co., 201 S. W. 233.

8(20) (Ark.) Allegations that defendant quit before completing his contract to clear off right of way, and delayed plaintiff 22 shifts, and damaged plaintiff $880, were too general, and mere 201 S. W. 510. conclusions.-Northern Const. Co. v. Johnson,

Allegations that defendant, independent contractor, did not complete contract to clear right of way in time, and plaintiff contractor, by reason of delay, was compelled to pay drainage district $880, were too general, and were mere conclusions.-Id.

10 (Mo.App.) Statement in affidavit for attachment against husband, in action on joint note of husband and wife, that defendants were about to remove their property, etc., held not to require proof of wife's personal intention, and it was merely pleading according to legal effect. -Ware v. Flory, 201 S. W. 593.

33 (Tex.Civ.App.) Allegation of mutual mistake becomes immaterial where unilateral mistake of one party, known to other party, is sufficiently alleged. International Life Ins. Co. v. Stuart, 201 S. W. 1088.

III. PLEA OR ANSWER, CROSS-COMPLAINT. AND AFFIDAVIT

OF DEFENSE.

(B) Dilatory Pleas and Matter in Abatement.

arts. 1902, 1909, 1910, and in view of rule 7 110 (Tex.Civ.App.) Under Rev. St. 1911, for district and county courts (142 S. W. xvii), defendant waived its plea of privilege to be sued in the federal court where no bill of exception preserving overruling of such plea was reserved, and final judgment to which exceptions were reserved purported to overrule plea. -Houston & T. C. R. Co. v. City of Ennis, 201 S. W. 256.

(E) Set-Off, Counterclaim, and Cross-Complaint.

139 (Mo.App.) In action to recover rent for grading machinery and damages for its misuse, a defense and cross-demand, based upon claim that plaintiff fraudulently concealed machinery's defective condition from defendant, is not available, unless pleaded.-L. J. Smith Const. Co. v. Mullins, 201 S. W. 602.

146 (Ky.) In action on notes, defense of failure of consideration which prays for cancellation must be regarded as counterclaim under Civ. Code Prac. § 96.-Sparr v. Fulton Nat. Bank, 201 S. W. 310.

Pleading

201 SOUTHWESTERN REPORTER

V. DEMURRER OR EXCEPTION.

on pleadings was not authorized.-Johnson v.
Boggess, 201 S. W. 42.

191.

of

193 (6) (Mo.App.) If two or more causes of action which may be joined in one petition XII. ISSUES, PROOF, AND VARIANCE. are improperly united in same count, defects pleadings of both parties need never be proved. cannot be reached by demurrer.-Puntney v.376 (Tex.Civ.App.) Facts admitted by the Mahn, 201 S. W. 913. memorandum into 228 (Tex.Civ.App.) Petition, not indicating City of San Antonio v. Newnam, 201 S. W. on its face that suit was brought sooner than agreement reciting consideration came 60 days after proof of loss, contrary to pro-381 (3) (Ky.) Where case as evidence without pleading setting it up, visions of fire policy, was good against special exception on ground that it appeared that suit was prematurely brought.-Royal Ins. of it will not be presumed it was executed on sideration claimed to have affected note in Liverpool, England, v. Humphrey, 201 S. W. consideration, free from vice of lack of consuit, and defendant could assail validity of 426. v. Birk, 201 S. W. 315. VI. AMENDED AND SUPPLEMENTAL writing.-Farmers' Bank of West Louisville PLEADINGS AND REPLEADER. 237(6) (Mo.App.) Refusal to allow trial amendment under Rev. St. 1909, § 1848, to plead limitation clause of assessment policy sued on, held not error.-Rasch v. Bankers' Life Co. of Des Moines, Iowa, 201 S. W. 919.

246(1) (Tex.Civ.App.) In trespass to try title for two tracts of land out of a survey, the allowance of plaintiff's trial amendment, attempting to vary and limit the terms of a deed, v. Blaine, 201 S. W. was erroneous.-Read 415.

249(2) (Ark.) It was error for trial court, by treating complaint as amended, and by instructing, to change cause of action in contract for rent of machine to tort for damaging it.McDonald v. Hill, 201 S. W. 509.

first amended second 252(2) (Tex.Civ.App.) A no part of a abandoned petition is amended petition.-Corpus Christi Street & Interurban Ry. Co. v. Kjellberg, 201 S. W. 1032.

258(3) (Ky.) In action to enjoin trespass and recover damages which was transferred to the common pleas court for trial of the law issues, it was not an abuse of discretion for the chancellor, when the judgment of the common pleas was certified, to refuse to allow an amendment to the answer pleading equitable estoppel.-Fort v. Wiser, 201 S. W. 7.

VII. SIGNATURE AND VERIFICA-
TION.

Under Vernon's
290 (2) (Tex.Civ.App.)
Sayles' Ann. Civ. St. 1914, art. 1906, subd. 8,
and article 3710, defendant in suit for taxes
held bound to deny under oath that rendition
of property was made by it, to be entitled to
deny that it made rendition.-North American
Dredging Co. of Nevada v. State, 201 S. W.

1065.

VIII. PROFERT. ÖVER, AND EX

EXHIBITS.

not alleged.
387 (Tex. Civ.App.) Facts
though proved, can form no basis for judicial
201 S. W. 1180.
action. Kinney v. Tri-State Telephone Co.,

XIII. DEFECTS AND OBJECTIONS,
WAIVER. AND AIDER BY VER-
DICT OR JUDGMENT.

430(2), (Mo.App.) Where plaintiff sued for
damages by grading of one street, and such
cause was barred, but evidence was admitted
as to a third cause arising by grading of an-
where the petition,
other street, without objection of variance,
plaintiff could
though indefinite, did not wholly exclude the
last cause of action.-Frederick v. City of Jop-
lin, 201 S. W. 1147.

recover

433 (2) (Mo.App.) The petition is sufficient after verdict if, after allowing all reasonable intendments in its favor, it notifies the defendant with reasonable certainty of the character of the action and the issues he is to meet, in view of Rev. St. 1909, § 2119, relating to prejudicial error.-Edwards v. Yarbrough, 201 S. W. 972.

on

433 (5) (Mo.App.) Where defendant files answer and does not demur, but objects to inground petition troduction of evidence states no cause of action, the petition will be held sufficient after verdict, if facts not alleged may be necessarily inferred from facts that are averred.-Young v. Queen Ins. Co. of America, 201 S. W. 940.

PLEDGES.

See Chattel Mortgages, ~8.

lading to the shipper's order to a bank places 4 (Mo.App.) Although delivery of bills of the legal title to the shipment in the bank, whether there is a sale of the shipment, or merely a transfer of title for security, depends upon the intention of the parties.-Cochrane v. First State Bank of Pickton, Tex., 201 S. W. 572.

306 (Tenn.) Where declaration contains profert of note sued on, and oyer asked by defendant is granted, defendant may demur or plead at his option, treating note as incorporat-25 (Mo.App.) Where a bank took bills of ed in declaration.-Waterhouse v. Sterchi Bros. Furniture Co., 201 S. W. 150.

If an element essential to existence of cause of action be omitted from declaration containing profert, and over be craved, defect will be cured, if instrument supplies or corrects omission.-Id.

310 (Tenn.) Mere profert of note upon which action is founded does not make it part of declaration, when declaration is tested by demurrer. Waterhouse v. Sterchi Bros. Furniture Co., 201 S. W. 150.

-

XI. MOTIONS.

lading as security for payment of drafts, it released such security when it authorized the railroad to deliver the shipments without payment of the drafts.-Cochrane v. First State Bank of Pickton, Tex., 201 S. W. 572.

58(5%) (Tenn.) Where mortgage bonds securing a promissory note are ordered to be foreclosed, and the note provides for attorney's fees, the decree should fix the basis of distribution of the sale, including such attorney's fees.-Carolina Spruce Co. v. Black Mountain R. Co., 201 S. W. 770.

58 (6) (Tenn.) A promissory note secured by mortgage bonds as collateral, held to provide for the allowance of attorney's fees from the proceeds of sale of such collateral.-Carolina Spruce Co. v. Black Mountain R. Co., 201 S. W. 770.

345(2) (Ky.) In action against alleged
trespassers for loss of house by fire, where it
was alleged in petition that trespasser's wife
was made defendant because she refused to join
as plaintiff, and wife and defendant husband
pleaded that at time of fire she, in exercise of
her dower right, and not husband, was in pos-
session, judgment for plaintiffs against husband See Municipal Corporations, 185.

POLICE.

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