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*A count in a declaration for the death of a An answer is amendable, in the discretion or servant by the fall of the skip in a mine shaft the court, alleging a release of the debt sued in held not demurrable for failure to allege wheth- bankruptcy proceedings begun after action comer the foot brake on the hoist engine was set menced.-Erickson v. Elliott (N. D.) 361, 363. at the time.-Cristanelli v. Saginaw Min. Co.
*The court before trial may permit amend(Mich.) 910.
ments to pleadings, though the effect thereof is *In an action for negligent injury, plaintiff to substantially change the cause of action or need not plead the facts which_tend to es defense.-Driskill y. Rebbe (S. D.) 135. tablish the negligence charged.-Cristanelli v. Saginaw Min. Co. (Mich.) 910.
§ 6. Motions.
*No election held required where the original & 2. Plea or answer, cross-complaint,
plaint, and renewal notes are sued on, and only one and affidavit of defense. *A defense going to the merits of the case
recovery is sought.-Farmers' Savings Bank of
Arispe v. Arispe Mercantile Co. (Iowa) 672. may be pleaded by all defendants, or, where pleaded by one of them, it inures to the benefit In an action against a city for injuries causof all.-City Nat. Bank of Columbus, Ohio, v. ed by falling into an open drain ditch in the Jordan (Iowa) 758.
street, certain allegations held properly stricken, Under Code, 3622, a denial, in an answer as matters of evidence admissible under the in an action for breach of contract to teach a general denial.-Parker v. City of Bedford public school of the damages alleged, held not (Iowa) 955. to raise any issue.-Byrne v. Independent School
*In a suit for conversion of timber, a defense Dist. of Struble (Iowa) 983.
that plaintiffs' grantor had waived his right to *Admissions of an individual defendant in the timber held not necessarily inconsistent with his pleading in a suit against a county and a defense ou a former trial that he had released others to establish a highway line were not all claims therefor in a settlement.-Newberry binding on the county.-Quinn v. Monona Coun- | v. Chicago Lumbering Co. (Mich.) 592. ty (Iowa) 1100.
It is error to grant a motion for judgment *In an action by grain brokers for money
on the pleadings where the answer states matadvanced and commissions, allegations that I ters of affirmative defense.-Erickson v. Elliott plaintiffs bought and sold wheat and advanced
(N. D.) 361, 363. money for defendant held not admitted by the answer.-Elliott v. McAllister (Minn.) 921. § 7. Issues, proof, and variance.
Any fact which plaintiff must prove to es- | *Admissions made in the pleadings forming tablish his cause of action may be disproved
proved the issues tried are to be
ried are to be considered without under a general denial.-Hilliard v. Wisconsin further action.- Wood v. Brotherhood of AmerLife Ins. Co. (Wis.) 999.
ican Yeomen (Iowa) 1123. *That no cause of action existed at the com- | *Where. in an action concerning rights in mencement of the suit may be established un- | property, plaintiff discloses the source of his der a general denial.-Hilliard v. Wisconsin
title, defendant must in his answer plead all deLife Ins. Co. (Wis.) 999.
fenses relied on in avoidance of the title so dis$ 3. Replication or reply and subse
closed.—Dickson v. City of St. Paul (Minn.) 426. quent pleadings.
A plea of not guilty in unlawful detainer in *Where plaintiff in an action to enjoin tres-justice court may, on transfer to the district pass claimed under a lease, an allegation in court, stand as a general denial in ejectment.the answer that the lease has been canceled is Bartleson v. Munson (Minn.) 512. new matter which must be denied by a reply --Stanser v. Cather (Neb.) 98.
Under a general denial in ejectment defendant It is not necessary to reply to an answer al- |
may prove any fact the existence of which neeleging a release of the debt sued on by virtue of
essarily negatives title in plaintiff, unless plainthe discharge in bankruptcy after the action
tiff sets out the specific facts on which his title was commenced.-Erickson v. Elliott (N. D.)
rests.-Bartleson v. Munson (Minn.) 512. 361, 363.
§ 8. Defects and objections, waiver, $ 4. Demurrer or exception.
and aider by verdict or judgment. *A demurrer to a pleading admits only the *In view of the withdrawal of a certain facts well pleaded --Warner v. Trustees of Nor-claim and of a stipulation of the parties, the wegian Cemetery Ass'n (Iowa) 39.
question of misjoinder of causes héld unavailMisjoinder of parties or of causes of action
ing on appeal.-Steber v. Chicago G. W. Ry. can be raised only by motion, and not by de
Co. (Iowa) 304. murrer or answer.- Steber v. Chicago G. W. *Right to question ruling on demurrer held Ry. Co. (Iowa) 304.
not waived by proceeding to trial.-Sullivan $ 5. Amended and supplemental plead- v. Sullivan (lowa) 1086. ings and repleader.
*Defendants by answering an amended com*A party obtaining leave to amend his plead- plaint without objection waived their objection ing so as to make it conform to the proof held to the amendment.-Driskill v. Rebbe (S. D.) entitled only to amend by making averments in
in 135. accordance with the evidence.- Warner v. Trustees of Norwegian Cemetery Ass'n (Iowa) 39.
PLEDGES *Where an original declaration pleaded conversion of certain logs, an amended declara- A tender of the amount secured by pledge of tion pleading defendant's negligence, referring personalty, though not accepted nor kept good, to the same logs, the same persons, and the will release the property from the lien of the same acts as alleged in the original, held au- pledge.-Moyer v. Leavitt (Neb.) 698. thorized.-Croze v. St. Mary's Canal Mineral Land Co. (Mich.) 81.
The pledgee of personal property fraudulently
represented that he had sold the property pledg. *In an action for breach of warranty against ed and sent $20 to the pledgor as part of the incumbrances on a span of horses, an amend. | price, which the latter retained until he discorment to the declaration held improperly allow. ered the fraud. Held, that the pledgor was not ed as stating a new cause of action.-Arnold v liable for interest on the $20.-Joyer v. Leavitt White (Mich.) 164.
| (Neb.) 698.
Acquisition of rights, see Adverse Possession,
1; Waters and Water Courses, 8 3. See Adverse Possession. Of demised premises, see Landlord and Ten
PRESENTMENT. ant, 88 4, 6.
Of claims against estate of decedént, see ExecuPOWERS.
tors and Administrators, $ 2.
On appeal or error, see Appeal and Error, $ 10. Prosecution of actions in general, see Action, § 2.
PRINCIPAL AND AGENT.
Larceny by agent, see Landlord and Tenant, Condemnation proceedings, see Eminent Do $ 1. main, $ 3.
Measure of damages for breach of agency con
tract, see Damages, $ 3. Particular proceedings in actions.
Nature and form of action against agent, see See Abatement and Revival: Continuance ;| Action, $ 1.
Costs; Damages, § 5; Depositions ; Dismiss-Opinion evidence as to agent's authority, see al and Nonsuit: Evidence; Execution ; Judg
Evidence, g 9. ment; Judicial Sales; Jury; Limitation of Actions; Parties; Pleading; Process; Re Agency in particular relations, offices, or ucmoval of Causes; Trial; Venue. Revival of judgment, see Judgment, g 11. See Attorney and Client; Brokers. Verdict, see Trial, $ 12.
Corporate agents, see Corporations, 88 5, 6. l'articular remedies in or incident to actions. I § 1. The relation. See Attachment; Garnishment; Injunction ; A contract of agency which leaves the agent Receivers.
free to terminate his relations with the princiProcedure in criminal prosecutions.
pal on specified notice held to confer the same
right on the principal.-Newhall v. Journal See Bail, 8 1; Criminal Law.
Printing Co. (Minn.) 228.
One held the agent of a corporation to procure
orders for its machines and entitled to a comting Liquors, $ 5.
mission on procuring an order.-Lindquist V. Procedure in erercise of special or limited juris Northwestern Port Huron Co. (S. D.) 365. diction.
§ 2. Mutual rights, duties, and liabili. In admiralty, see Maritime Liens, g 1.
ties. In equity, see Equity.
A co-owner of certain land held authorized In insolvency, see Insolvency.
to bind his co-tenant by an agreement to pay In justices' courts, see Justices of the Peace,
a commission to a broker for bringing a pros$ 2.
pective purchaser to inspect the property, if a Procedure in or by particular courts or tribunals.
sale to him is made.-Lee v. Conrad (Iowa)
1096. Procedure of particular courts, see Courts.
Where applications for the purchase of stock Procedure on review.
are made to an agent authorized to sell such See Appeal and Error: Certiorari, & 2; Er- stock, and the price is paid to the agent, the
ceptions, Bill of; Justices of the Peace, $ 3; payment will be deemed to have been made to New Trial.
Ithe principal.-Stat v. Phillips (Minn.) 508. *Point annotated. See syllabus.
*On the exalting of value by an agent em
PRIORITIES. ployed to purchase real estate far beyond what he believes it to be, if the principal relies on l of mechanics' liens, see Mechanics' Liens. $ 3. the representations of the agent, the latter and / or mortgages. see Chattel Mortgages. $ 2: his co-conspirator are liable in damages.-WI1 Mortgages. 8 1. ruth v. Lashmett (Neb.) 887.
*Threshing machine agents held liable to their principal as for a breach of contract for permitting a purchaser of a separator to obtain possession thereof without settlement, either in
Rights of way, see Easements. cash or notes.-J. I. Case Threshing Mach. Co. v. Folger (Wis.) 944.
PRIVILEGED COMMUNICATIONS. $ 3. Rights and liabilities as to third persons.
Disclosure by witness, see Witnesses, $ 2. *An agent of an estate held to have authority to make a settlement of a claim against defend
PROBABLE CAUSE. ant belonging to the heirs, and to waive a right of forfeiture of timber for failure to remove it within a stipulated time.-Newberry v. Chicago
For prosecution, see Malicious Prosecution, $ 1. Lumbering Co. (Mich.) 592. Under Rev. Civ. Code, $$ 1667, 1670, a lease
PROBATE. executed by an agent without written authority is void, and is not rendered valid by a Of will, see Wills, 8 3. subsequent ratification executed after the principal has parted with his title to the land.Dobbs v. Atlas Elevator Co. (S. D.) 128.
PROBATE COURTS. *Where an order for the purchase of a na See Courts, $ 4. chine and a contract appointing one a local agent for the seller to procure orders for machines were executed on the same day, and im
PROCEEDS. mediately forwarded to the home office of the seller by its general agent, the seller was charg. Of foreclosure sale, see Chattel Mortgages, $ 3. ed with knowledge possessed by the general agent.-Lindquist y. Northwestern Port Huron Co. (S. D.) 365.
PROCESS. * Acts of a corporation held a ratification of in actions against particular clas868 of persons. an illegal transaction by its agent as a matter of law.-Twentieth Century Co. v. Quilling wee Corporations; 8
See Corporations, $ 7; Infants, $ 1.
; mauts, 8 de (Wis.) 1007.
In particular actions or proceedings. On appeal, see Appeal and Error, $ 3.
Particular forms of writs or other process. Computation of limitations in action against
aroinst | See Execution; Garuishment; Injunction; surety, see Limitation of Actions, $ 2.
Bams Maudamus; Prohibition; Quo Warranto; ReLiabilities on bonds for performance of duties! plevin.
of trust or office, see Sheriffs and Constables, & 1. Nature, issuance, requisites, and $ 3.
validity. Limitations applicable to action against surety, ! *An original notice requiring appearance on see Limitation of Actions, 8 1.
a date prior to the day of service, held void for Parties entitled to allege error in action against,
ege error in action against, want of jurisdiction.--Cummings v. Landes see Appeal and Error, $ 9.
(Iowa) 22. Surety on bail bond, see Bail.
| The printed signature of plaintiff's attorney 8 1. Discharge of surety.
attached to an original notice held a suihicient *If the payee's agent was not authorized to signing thereof within the statute requiring an extend the time for payment of a note, and original notice to be "signed" by plaintiff or his his act was not ratified, held a surety on the attorney.-Cummings v. Landes (lowa) 22. note was not released by such extension -Fullerton Lumber Co. v. Snouffer (Iowa) 50. / 8 2. Service.
*One not acting in a representative capacity Where the bond securing a building contract or in
or in some way authorized so to do may not provided that notice of default should be served
waive service of process for another, either on the surety, held that, no claim being made
by appearance in court for or by acknowledge for damages by reason of delay, the failure to
ing for him timely service after the date fixed give notice thereof within the required time did
for appearance.-Cummings v. Landes (Iowa) not relieve the surety from damages arising from labor and materialmen's liens.--Lakeside Land Co. v. Empire State Surety Co. (Minn.) *Evidence held sufficient to show that the re431.
turn of an officer showing service of process
was erroneous.--St. Paul Harvester Co. v. Faul. 8 2. Remedies of creditors.
haber (Neb.) 702. Whether payee's agent was authorized to extend the time for payment of a note held a
*Defendant in foreclosure sued by the initial jury question.--Fullerton Lumber Co. v. Snouf- |.
o f letters, who does not appear and upon whom
| personal service is not made, is not bound by fer (Iowa) 50.
the decree therein.-Ilerbage v. Mckee (Veb. *As a general rule, the liability of a surety is 706. not greater than that of his principal, and he may have the benefit of any defense which the principal pleads or can plead.-City Nat. Bank of Columbus, Ohio, v. Jordan (Iowa) 758. Of traffic in intoxicating liquors, see Intori. *Fraud in inducing a principal to make a
cating Liquors. promise will release the surety as the same af- $ . Nature and grounds. fects the character of the debt.--City Nat. Bank Acts of the state board of canvassers in care of Columbus, Ohio, v. Jordan (Iowa) 758. Tvassing the votes of a primary election held up
*Point annotated. See syllabus.
PRINCIPAL AND SURETY.
der Laws Ex. Sess. 1907, p. 10, No. 4, being the
PUBLICATION. performance of merely statutory duties, may be restrained by prohibition.-Bradley y. Board of Service of process, see Process, $ 2. State Canvassers (Mich.) 649; Warner v. Same, Id. The duties imposed on the board of state can
PUBLIC DEBT. rassers by Laws Ex. Sess. 1907, p. 10, No. 4, in canvassing the votes at a primary election se
election See Counties, & 2; Municipal Corporations, & 9; and recounting them on petition therefor, being
| Schools and School Districts, $ 1. merely ministerial, the board may be restrained by prohibition from exceeding its jurisdiction.
PUBLIC IMPROVEMENTS. Bradley v. Board of State Canvassers (Mich.) 649; Warner v. Same, Id.
By municipalities, see Municipal Corporations, Judge of the trial court will not be prohibited & 5. from vacating judgment after remittitur to allow defendant to apply in the Supreme Court
PUBLIC LANDS. for a rehearing.--Nystrom v. Templeton (N. D.) 473.
Appropriation of water rights, see Waters and
Water Courses, $ 1.
office, see Evidence, $ 7. See Breach of Marriage Promise.
Taxation of public state lands, see Taxation,
8 1. Survey and disposal of lands of PROMISSORY NOTES.
A location of land under a military land warSee Bills and Notes.
rant, accompanied by a record of the entry in the proper office, held to remove the land from
the general domain of the government open to PROOF.
purchase or settlement.--Herrick & Stevens v.
Sargent & Labr (Iowa) 751. Of loss insured against, see Insurance, $ 8.
*The passing of the legal title from the govOf service of process, see Process, $ 2.
ernment by issuing a patent to land located
under a military land warrant relates back to PROPERTY.
the date of the entry of the location, and removes all doubt as to the taxable character of
the property after such date.-Herrick & SteyConstitutional guaranties of rights of proper- ens v. Sargent & Lahr (Iowa) 751.
ty, see Constitutional Law, $ 7. Licenses in respect to real property, see Licen
*Where a person's title to land under a milises, $ 1.
tary land warrant had been eliminated by a tax Rules of property as stare decisis, see Courts,
sale of the land and a deed thereof, a subse§ 2.
quent patent issued by the government to such
| person did not affect the title of one claiming Particular species of property.
under the tax deed.-Herrick & Stevens v. SarSee Animals; Crops; Fixtures; Good Will; gent & Lahr (Iowa) 751.
Intoxicating Liquors, g 8; Logs and Logging; *A judgment against a surety on a superse. Trade-Marks and Trade-Names.
deas bond is a debt contracted on the approval
of such bond, within the timber culture law, Remedies involving or affecting property. providing that land acquired under such law Protection of rights of property by injunction, shall not be liable for the satisfaction of any see Injunction, $ 2.
debt contracted before the issuance of the final Transfers and other matters affecting title.
certificate.--Leman v. Chipman (Neb.) 885. See Adverse Possession. Dedication to public use, see Dedication.
PUBLIC SCHOOLS. Taking for public use, see Eminent Domain.
See Schools and School Districts, $ 1. *A person acquiring knowledge of trade secrets may use them, where the manner of obal PUBLIC SERVICE CORPORATIONS. taining such knowledge and the use of them do not constitute a breach of faith.-Elaterite Paint & Mfg. Co. v. S. E. Frost Co. (Minn.) 388.
See Carriers; Railroads; Street Railroads; A person in actual possession of and having
Telegraphs and Telephones. actual control over personal property is prima
Gas companies, see Gas. facie the owner thereof.--Mariner v. Wasser
Water companies, see Waters and Water Cours(N. D.) 343.
es, 8 6.
Dedication of property, see Dedication. In civil actions, sec Trial, 8 6.
Taking property for public use, see Eminent In criminal prosecutions, see Criminal Law, ! Domain. $ 5. PROXIMATE CAUSE.
PUBLIC WATER SUPPLY.
See Waters and Water Courses, $ 6.
Damages, § 1.
I see Sales, § 1. * Point annotated. See syllabus.
PROVINCE OF COURT AND JURY.
QUESTIONS FOR JURY.
St. 1898, § 1774, relative to amending articles
of incorporation, refers only to corporations In civil actions, see Trial, 8. 5.
organized under chapter 86 of the Statutes, In criminal prosecutions, see Criminal Law, which excludes railroad corporations.-State y. 5.
Railroad Commission (W.is.) 816.
§ 2. Operation.
*The driver of a vehicle whose negligence di. § 1. Proceedings and relief.
rectly contributed to a collision with a train at *Evidence in a suit to quiet title held suffi
| a crossing and precluded recovery for personal
injuries could not recover for the injuries to cient to support a decree for complainants.
his team and vehicle.-Williams y. Chicago, VI. Johnson v. Smith (Mich.) 563.
& St. P. Ry. Co. (Iowa) 356. *The venue of an action to quiet title under Cobbey's Ann. St. 1903, § 1050, must be laid in
*It is the duty of one approaching a railroad the county in which the real estate is situated.
crossing to use reasonable care to avoid injury. Johnson v. Samuelson (Neb.) 470.
|--Williams v. Chicago, M. & St. P. Ry. Co.
(Iowa) 936. Where the owner of a mortgage, barred by limitations, asks affirmative relief, the court on
*The driver of a vehicle held guilty under a plea of said statute and proof may dismiss the evidence of contributory negligence as a the action without compelling defendant to pay matter of law, precluding recovery for injuries outlawed claim.-Herbage v. Mckee (Neb.) 706.
v. Mckee (Neb.) 106. through being struck by a train at a crossing.
1 - Williams v. Chicago, M. & St. P. Ry. Cu. *A suit to establish title in land held barred
(Iowa) 956. by laches.-Likens v. Likens (Wis.) 799.
*Whether one approaching a railroad cross
ing should stop, look, and listen depends on the QUITCLAIM DEEDS.
circumstances of the particular case, and, sare
in exceptional cases, is a question for the jury. See Deeds, $ 2.
-Williams v. Chicago, M. & St. P. Ry. Co.
*Whether a way by license over the tracks
of a railroad existed held under the evidence § 1. Jurisdiction, proceedings, and re
for the jury.-Tarashonsky v. Illinois Cent. R. lief.
Co. (Iowa) 1074. In quo warranto proceedings to determine the *In an action for injuries to a child struck right to the office of county superintendent of by a switch engine, a finding of willful neg. schools, evidence held insuflicient to show that ligence of the trainmen held supported by the respondent had ceased to be a resident of the evidence.-Tarashonsky y. Illinois Cent. R. Co. county in and for which he had been elected, | (Iowa) 1074. and had not, therefore, vacated his office for
*Trainmen in passing along a licensed way that reason.-State v. Hays (Minn.) 615.
held bound to keep a lookout for travelers.
Tarashonsky v. Illinois Cent. R. Co. (lowa) RAILROADS.
Where the evidence showed that the omisSee Street Railroads.
sion by a railroad to construct gates at a street As employers, see Master and Servant.
crossing was not the proximate cause of the inCarriage of goods and passengers, see Carriers. jury to a boy, who crossed over the tracks to Exercise of power of eminent domain, see Emi- catch a ride on a passing freight train, a vernent Domain, 88 1, 2.
| dict for defendant was proper.-Mehalek v. Harmless error in action for injuries caused Minneapolis, St. P. & S. S. M. Ry. Co. (Minn.)
by operation of, see Appeal and Error, $ 21. 250. Province of court and jury in action for in
*Plaintiff's intestate, killed in crossing a railjuries from operation of, see Trial, $ 6.
road track at night, hold guilty of contributory Questions for jury in action for injuries from
negligence as a matter of law.-Hermeling v. Operation of, see Trial, 5.
Chicago, St. P., M. & 0. Ry. Co. (Minn.) 341. Regulation of hours of employment of employés of as regulation of commerce, see Com
*The rule requiring a person before crossing merce, $81, 3.
the track to look and listen is not applicable in Requests for instructions in action for injuries all its force to a passenger in a vehicle who has from operation of, see Trial, $ 10.
no control over the driver.-Liabraaten v. JinRequirements of statute of frauds as to con- neapolis, St. P. & S. S. M. Ry. Co. (Minn.) 423.
veyance of right of way, see Frauds, Statute *That a passenger in a vehicle could, had he of, § 1.
looked or listened, have noticed an approaching Right of action against receiver of railroad, train, 18 not conclusive of contributory neglisee Receivers, $ 1.
gence on his part.-Liabraaten v. Minneapolis, 8 1. Railroad companies.
St. P. & S. S. M. Ry. Co. (Minn.) 423. The railroad commission of the state has au *In an action for injuries at a railroad crossthority, under Laws 1907, pp. 411, 412, c. 576, ing, evidence held to sustain a finding of negli$$ 1753-3, to pass on the competency of a rail- gence on the part of defendant.--Liabraaten v. road corporation to increase its capital stock, Minneapolis, St. P. & S. S. M. Ry. Co. (Winn.) and to refuse permission if the articles of in- | 123. corporation shall not have been so broadened as
*In an action for injuries to an automobile to cover the subject by a valid amendment.- in a collision at a railroad crossing, plaintiff State v. Railroad Commission (Wis.) 816.
and his daughter held not negligent as a matter A change of the authorized capital stock of a of law in not stopping before making the crossrailroad, under St. 1898, 8 1826, though noting.-Pendroy v. Great Northern Ry. Co. (N. called an amendment, when effected, is one in D.) 531. fact.-State v. Railroad Commission (Wis.) 816. In an action for injuries to an automobile
A change of the authorized capital stock of a in a collision with defendant's train at a railrailroad is one of a fundamental character, re-road crossing, evidence held to require submisquiring an amendment to the articles of organi. sion of contributory negligence of plaintiff and zation.--State v. Railroad Commission (Wis.) his daughter to the jury.--Pendroy v. Great 846.
Northern Ry. Co. (N. D.) 531, *Point annotated. See syllabus.