Telegraph or telephone companies, see Telegraphs and Telephones, §§ 15, 27-74.

Condition or use of particular species of property, works, machinery, or other instrumentalities.

(A) Persons Injured in General. $ 72. The rule that the confusion resulting when one is called on to act suddenly in an emergency may relieve him from the charge of contributory negligence held not to apply unless negligence in placing him in a position of danger is shown.-Texas & P. Ry. Co. v. Myers (Tex. Civ. App.) 49.

§ 83. When the last clear chance doctrine comes into play stated.-Gumm v. Kansas City Belt Ry. Co. (Mo. App.) 796.

172-184.

porations, §§ 705, 706.

Waterworks and appliances, see Waters and Water Courses, §§ 206, 209.

Injuries to particular species of property. Animals in operation of railroads, see Railroads, §§ 411-446.

I. ACTS OR OMISSIONS CONSTITUTING NEGLIGENCE.

(A) Personal Conduct in General.

§ 1. If one does what the great body of other prudent men do, under a like situation, he is not negligent.-Tallman v. Nelson (Mo. App.) 1181.

§ 2. There can be no actionable negligence except where there is a failure to perform some legal or contractual duty.-St. Louis Southwestern Ry. Co. of Texas v. Anderson (Tex. Civ. App.) 628.

§ 2. Negligence can only be established by evidence showing a failure to perform some duty imposed by law upon the party sought to be charged.-Hall v. Houston & T. C. R. Co. (Tex. Civ. App.) 946.

(B) Dangerous Substances, Machinery, and Other Instrumentalities. Electricity, see Electricity, §§ 16, 19.

§ 23. An elevator owner held not liable for injuries to a child caused by the negligence of the operator on the theory that the elevator was attractive to children.-Sweeden v. Atkinson Improvement Co. (Ark.) 439.

(C) Condition and Use of Land, Buildings,

and Other Structures.

Sewers, drains, or water courses, see Municipal Corporations, §§ 835, 845.

Tools, machinery, appliances, and places for work, see Master and Servant, §§ 101-125. Violation of statute as to rate of speed of motor vehicles at highway crossings, see Highways, § 172.

§ 30. The fact that a pile of pig iron near which plaintiff was working in defendant's yards, for an independent contractor, was piled seven or eight feet high, which was higher than usual, held not to show negligence.-Bowman V. American Car & Foundry Co. (Mo.) 1120. II. PROXIMATE CAUSE OF INJURY. Injuries at railroad crossings, see Railroads, 337.

Injuries to passengers, see Carriers. § 305. Injuries to servants, see Master and Servant, § 247.

Of injuries at railroad crossing, see Railroads, § 335.

(B) Children and Others Under Disability. $ 85. A child's conduct, considered from the standpoint of the ordinary child, may be conv. Missouri Pac. Ry. Co. (Mo. App.) 794.

§ 85. A boy, injured while aiding an employé to turn a turntable, held guilty of contributory negligence as a matter of law.-Henry v. Missouri Pac. Ry. Co. (Mo. App.) 794.

IV. ACTIONS.

Damages, inadequate and excessive, see Damages, §§ 130–132. Damages, measure, see Damages, § 113. (A) Right of Action, Parties, Preliminary Aider by verdict, see Pleading, § 433.

Proceedings, and Pleadings.

§ 111. A complaint for injuries resulting from an alleged negligent fire held not defective for want of facts.-Norman v. Sheip (Mo. App.) 527.

§ 117. Contributory negligence is an affirmative defense, and to be availing ordinarily it must be charged in the answer and established by the evidence.-George v. St. Louis & S. F. R. Co. (Mo.) 196.

(B) Evidence.

Acts and statements accompanying or connected with transaction as constituting part of res gestæ, see Evidence, §§ 121-128.

Evidence of conditions preceding injury in action for injuries to servant, see Master and Servant, 270.

§ 121. In an action for injury to plaintiff while working in defendant car company's yards by a pile of pig iron falling upon him, the bur because of inherent defects therein which were den was on plaintiff to show that the pile fell known to defendant or should have been known to it by exercising ordinary care.-Bowman v. American Car & Foundry Co. (Mo.) 1120.

§ 121. In an action for negligence, plaintiff held to establish a prima facie case, and cast on defendant the burden of showing that he exercised due care.-Freeman v. Foreman (Mo. App.) 524.

§ 121. In a case grounded on negligence, the burden of proving negligence is on him who alleges it.-Freeman v. Foreman (Mo. App.) 524.

§ 121. A defendant, in a position to explain an accident resulting in injury, will not be presumed negligent in the absence of such explanation, where the facts are equally consistent with the negligence of the person injured as that of the defendant, or both combined.-Texas & P. Coal Co. v. Kowsikowsiki (Tex.) 3.

(C) Trial, Judgment, and Review.

§ 136. Where there cannot be two opinions in the minds of reasonable men on the issue of

contributory negligence, the issue is for the court.-Larrance v. Missouri Pac. Ry. Co. (Mo. App.) 549.

$ 136. Test

of

stated for determination whether a child's negligence should be submitted to the jury in an action for personal injuries.-Citizens' Ry. Co. v. Robertson (Tex. Civ. App.) 343.

§ 136. Negligence is always a question for the jury, to be judged by the standard of ordinary care, unless the undisputed evidence establishes the issue, in which case the court must determine it.-Rice & Lyon v. Lewis (Tex. Civ. App.) 961.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes.

NEGROES.

III. PROCEEDINGS TO PROCURE NEW TRIAL.

Computation of time, see Time, § 10. Necessity and sufficiency of statement of grounds for purpose of review, see Appeal and Error, §§ 301, 302.

§ 159. It is the duty of the trial judge to pass upon the weight of the evidence upon a motion for new trial.-Philes v. Missouri Pac. Ry. Co. (Mo. App.) 553.

NEXT FRIEND.

Of infant, see Infants, §§ 78-102. NEXT OF KIN.

See Descent and Distribution.

NOMINATION.

NEW TRIAL.

Granted by appellate court, see Appeal and Error, §§ 1144, 1215.

Granted by lower court after remand by appellate court, see Appeal and Error, § 1202. Necessity of motion for purpose of review, see Appeal and Error, §§ 281–302.

Necessity of order granting new trial on setting aside verdict or judgment, see Trial, § 9. Opening or vacating judgment, see Judgment, §§ 342, 357.

In particular actions or proceedings. Criminal prosecutions, see Criminal Law, 88 Highway proceedings, see Highways, §§ 41, 58.

923-958.

(F) Verdict or Findings Contrary to Law or Evidence.

§ 76. The jury in a personal injury action may exercise much latitude in fixing the amount of damages, and the court will interfere only when the discretion has been abused.-Texas & G. Ry. Co. v. Hall (Tex. Civ. App.) 71.

(H) Newly Discovered Evidence. $104. Newly discovered evidence which is simply cumulative is not ground for a new trial. -Powell v. Weber-Stair Co. (Ky.) 255.

NOTICE.

Judicial notice, see Evidence, §§ 11-35. Right to foreclose deed of trust by advertisement, see Mortgages, § 331.

As affecting particular classes of persons. See Adjoining Landowners, § 4; Attorney and Client, § 104; Master and Servant, § 220; Vendor and Purchaser, § 84.

Insurance companies, see Insurance, §§ 377388, 559.

Purchasers of land, see Vendor and Purchaser, §§ 229-233.

As affecting particular rights, duties, and liabili

ties.

Adverse possession against co-tenant, see Tenacy in Common, § 15. Liability of insurer as affected by notice of facts warranting avoidance or forfeiture of policy, see Insurance, §§ 377-388.

Liability of insurer as affected by notice of loss, Liability of master for injuries to servant as see Insurance, § 559. affected by notice of defects, see Master and Servant, § 220.

Of personal injuries affecting right of action for resulting death, see Death, § 19.

Rights and liabilities of bona fide purchasers of real property, see Vendor and Purchaser, §§ 229-233.

Right to rescind sale, see Vendor and Purchaser. § 84.

To produce primary evidence as preliminary to admission of secondary evidence, see Evidence, § 185.

Of particular facts, acts, or proceedings not judicial.

Adverse possession by co-tenant, see Tenancy in Common, § 15.

Alteration of municipal boundary, see Municipal Corporations, § 33.

Dangers of employment as affecting assumption of risk, see Master and Servant, § 220.

Defects in title of vendor of land, see Vendor and Purchaser, §§ 229-233.

Election to rescind sale, see Vendor and Purchaser, $84.

Hearing before arbitrators, see Arbitration and Award, 32.

Intent to excavate on adjoining lands, see Adjoining Landowners, § 4.

Local option election, see Intoxicating Liquors, § 33.

Loss under insurance policy, see Insurance, § 559.

Nonpayment or protest of bill or notes, see
Bills and Notes, $$ 396, 422.
Proceedings for making of municipal assess-
ments, see Municipal Corporations, 88 488,

489.

Of particular judicial proceedings. To amend or correct judgment, see Judgment, § 323. NUISANCE.

Liability of municipality, see Municipal Corporations, § 736.

I. PRIVATE NUISANCES.

(C) Abatement and Injunction.

§ 23. The remedy at law provided for the violation of an ordinance prohibiting the erection of ginhouses held adequate so that an injunction would not be granted.-Swaim v. Morris (Ark.) 432.

II. PUBLIC NUISANCES.

See Disorderly House.

OBSTRUCTING JUSTICE.

Escape of prisoners, see Escape.

OBSTRUCTIONS.

Of access to property as ground for compensation, see Eminent Domain, § 106. Of street, see Municipal Corporations, § 671.

OCCUPATION.

Constitutional guaranty of liberty to choose o cupation, see Constitutional Law, § 88. License tax on occupations in general, see Licenses, $86, 14. Regulation by special or local law, see Statutes, § 81.

Subjects and titles of acts relating to occupations and employments, see Statutes, § 114.

OFFENSES.

See Criminal Law.

OFFER.

Of judgment as affecting award of costs, see Costs, § 42.

OFFICE JUDGMENT.

See Judgment, §§ 135-162.
OFFICERS.

for.

185-242.

Necessity and sufficiency for purpose of review in criminal prosecutions, see Criminal Law, S$ 1035-1045.

To evidence at trial, see Criminal Law, § 692; Trial, 76.

To indictment or information, see Indictment and Information, $$ 137-147, 196.

To instructions, see Criminal Law, § 844; Trial, 278.

To jurors, see Jury, § 120.

To pleadings, see Pleading, §§ 409-433. To record on appeal or writ of error, see Appeal and Error, § 643.

To venue, see Venue, § 17.

OBLIGATION OF CONTRACTS.

Laws impairing, see Constitutional Law, 88 125, 126.

officers, see Municipal Corporations, §§ 745%, 747.

Mandamus to public officers in general, see Mandamus, § 102.

Official acts, constituting acceptance of dedication, see Dedication, § 35.

Presumptions as to official proceedings and acts, see Evidence, § 83.

Regulation and conduct of elections in general, see Elections.

Right to carry weapons, see Weapons, § 11. Subjects and titles of acts relating to publie officers, see Statutes, § 125.

Particular classes of officers. See Judges; Justices of the Peace; Registers of Deeds; Sheriffs and Constables. Attorneys, see Attorney and Client.

Corporate officers in general, see Corporations, $ 355.

County officers, see Counties, § 80.
Health officers, see Health, $7.

Municipal officers, see Municipal Corporations, § 204.

State officers, see States, § 43.
Trustees, see Trusts.

Trustees in bankruptcy, see Bankruptcy, $8

152-299.

(G) Resignation, Suspension, or Removal.

OSTEOPATHY.

III. RIGHTS, POWERS, DUTIES. AND LIABILITIES.

Fees of county officers in general, see Counties, $ 80.

Rights and liabilities of county clerk as to excessive fees, see Counties, § SO.

IV. LIABILITIES ON OFFICIAL

BONDS.

Bonds of marshals, see Sheriffs and Constables, § 157.

OPEN ACCOUNTS.

See Account, Action on.

OPENING.

Account of guardian, see Guardian and Ward, § 160.

Judgment, see Judgment, §§ 135-162, 342, 357. Settlement of claim by administrator, see Executors and Administrators, § 87.

OPERA HOUSES.

See Theaters and Shows.

OPHTHALMOLOGIST.

See l'hysicians and Surgeons, § 6.

OPINION EVIDENCE.

OUSTER.

Re-entry and recovery of possession by landlord, see Landlord and Tenant, §§ 278, 292.

OWNERSHIP.

Of property as affecting performance of contract of sale, see Vendor and Purchaser, § 134.

PAIS.

Estoppel in pais, see Estoppel, $$ 62-98.

PARAPHERNAL PROPERTY.

See Husband and Wife, § 266.

PARDON.

Right to question constitutionality of statute relating to parole, see Constitutional Law, § 43.

§ 2. Rev. St. 1899, § 2818 (Ann. St. 1906, p. 1623), providing for the parole of prisoners, was not unconstitutional.-State v. Collins (Mo.) 465.

PARENT AND CHILD.

See Guardian and Ward; Infants. Declarations or family records and reputation as to pedigree, birth, or relationship, see Evidence, § 291.

Denial of right to trial by jury, in action relating to custody of child, see Jury, § 31.

Orders of court.

13.

ORPHANS' COURTS.

See Courts, § 202.

of Causes, § 32.

Death ground for abatement, see Abatement and Revival, § 64.

Domicile or residence as determining venue, see Venue. § 22.

Interpleading, see Interpleader.
Political parties, see Elections, § 120.
Rights and liabilities as to costs, see Costs.
In actions by or against particular classes of
persons.

See Carriers, § 76; Partnership, §§ 199-219.
Trustee in bankruptcy, see Bankruptcy, § 299.

In particular actions or proceedings.
For loss of goods shipped, see Carriers, § 76.
For unpaid municipal taxes, see Municipal Cor-
porations, § 978.

On bills or notes, see Bills and Notes, § 460.
To enforce mechanic's lien, see Mechanics'
Liens, 264.

Judgment and relief as to parties, and parties affected by judgments or proceedings thereon. Parties to judgment on trial of issues, see Judgment, § 233.

Persons concluded by judgment in general, see Judgment, §§ 673-707.

Review as to parties, and parties to proceedings in appellate courts.

Appeal from justice court, see Justices of the Peace, $152.

Review of questions as dependent on prejudicial nature of error, see Appeal and Error, § 1036. To conveyances, contracts, or other transactions. See Contracts, § 184.

I. PLAINTIFFS.

(B) Joinder.

$202. Under common-law procedure, where one of several owners of a joint interest refused to join as plaintiff, the other owners were permitted to use his name as a coplaintiff.-Ingham Lumber Co. v. Ingersoll & Co. (Ark.) 139.

II. DEFENDANTS.

(B) Joinder.

35. Under Kirby's Dig. 8 6007, where a partner refused to join in an action to recover a claim of the firm, he may be made a party defendant.-Ingham Lumber Co. v. Ingersoll & Co. (Ark.) 139.

III. NEW PARTIES AND CHANGE OF

PARTIES.

Effect on admissibility of depositions, see Depositions, § 96.

In actions to enforce mechanic's lien, see Me-
chanics' Liens, § 264.
Interpleading, see Interpleader.
Intervention in attachment

proceedings by claimant of property, see Attachment, §§ 291, 296.

§ 52. A request that a certain person be made a party held to have been made too late. -Bank of Waldron v. Euper (Ark.) 1022.

PARTITION.

Creation of co-tenancies, and rights and liabilities of co-tenants in general, see Tenancy in Common.

Division of community property on divorce, see Divorce, §§ 182, 252.

II. ACTIONS FOR PARTITION. (B) Proceedings and Relief. Authority of guardian as to sale of property of ward, see Guardian and Ward, § 38. Conclusiveness of adjudication, see Judgment, 8 747.

$77. Facts shown held to justify a finding that land could not be divided without materially impairing its value, as well as a direction that it be sold in parcels and then as a whole, the

best bid to be accepted.-Sledge v. Willoughby (Ky.) 705.

§85. In a suit to recover a one-half interest in land and for partition, where defendant had been adjudged entitled to a one-half interest in a prior suit, he was entitled, on the rendering of a judgment giving plaintiffs a one-half interest in the land, with a decree of partition, to be compensated for improvements made pend ing the suit.-Whitmire v. Powell (Tex.) 889.

§ 100. Under Rev. St. 1899, § 4407 (Ann. St. 1906, p. 2421), construed in view of section 3197, held, that a partition sale could not be made on October 12th, where the court had adjourned from the 9th to the 13th.-Davidson v. I. M. Davidson Real Estate & Investment Co. (Mo.) 1143.

§ 103. Sale of land in partition proceedings to a purported corporation not in existence had invalid.-Davidson v. I..M. Davidson Real Estate & Investment Co. (Mo.) 1143.

§ 104. Where the order of sale in partition proceedings required payment by the purchas er in cash of at least one-half of the price, sale made without any payment was void.Davidson v. I. M. Davidson Real Estate & Investment Co. (Mo.) 1143.

$109. A purchaser at partition sale was properly held an innocent purchaser for value without notice, as against the assertion that a deed in the chain of title was a mortgage.Brown v. Spradlin (Ky.) 150.

PARTNERSHIP.

I. THE RELATION.

(C) Evidence.

§ 53. Evidence held sufficient to sustain a finding that two of the defendants were partners inter se.-Citizens' Bank of Laredo v. Lowder (Mo. App.) 1180.

by circumstances.-Citizens' Bank of Laredo . § 53. A partnership inter se may be proved Lowder (Mo. App.) 1180.

III. MUTUAL RIGHTS, DUTIES, AND LIABILITIES OF PARTNERS.

(C) Actions Between Partners. § 120. Where the petition charged that de fendants were partners as to plaintiff, it was sufficient to justify proof of facts entitles plaintiff to charge them as partners.-Citizens Bank of Laredo v. Lowder (Mo. App.) 1180.

IV. RIGHTS AND LIABILITIES AS TO THIRD PERSONS.

(D) Actions by or Against Firms or Part

ners.

Finality of judgment for purpose of review, see Appeal and Error, § 79. Making defendant, partner refusing to join as plaintiff, see Parties, § 35.

§ 199. In a suit for breach of a contra made with a partnership, all the partners ha an interest in the subject-matter of the suit and are necessary parties.-Ingham Lumber Co. 1. Ingersoll & Co. (Ark.) 139.

§ 206. Where partners are suing on a partnership claim, one of them may not dismiss action against the objection of the other, unless the prosecution of the suit would result in riously to him and if it might do so, the other partner may continue the action in the na of both upon indemnifying him against loss, f indemnity is demanded.-Ingham Lumber Co. Ingersoll & Co. (Ark.) 139.

§ 206. Where a suit was instituted in firm name for the breach of a contract and of the partners thereafter sought to dismiss