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prudent person under the circumstances, to have known that he could
not escape injury or death. (Mont.) Bracey v. Northwestern Im-
provement Co., 738.

7. NEGLIGENCE-Rescue of Person in Peril.-Where the com-
plaint in an action to recover for the death of a coal miner, who was
overcome by gases while rescuing a fellow-workman, alleges that the
death was due to the accumulation of gases spontaneously generated
in unused workings which he entered, while the evidence discloses
that the gases which caused his death were generated by a fire in the
mine, the variance is such as amounts to a failure of proof, and brings
the case within the rule that unless the evidence furnishes substantial
support for the cause of action alleged, the plaintiff has failed to make
out his case, even though the evidence shows negligence in other re-
spects. (Mont.) Bracey v. Northwestern Improvement Co., 738.

7a.

NEGLIGENCE-Attempt to Save Human Life. The law has
so high a regard for human life that it will not impute negligence to
one who attempts to save it, unless the attempt is made under such
circumstances as to constitute it rashness in the estimate of prudent
persons. (Mont.) Da Rin v. Casualty Co., 709.

Pleading-Evidence-Trial.

8. NEGLIGENCE—Allegation in General Terms.-The duty of
exercising due care being shown, the failure to perform that duty, the
negligence causing the injuries complained of, may be averred in the
most general terms, little if at all short of the mere conclusions of
the pleader, since if the defendant has been guilty of negligence he
knows as well or better than the plaintiff in what it consists. (Ala.)
Western Union Tel. Co. v. Saunders, 35.

9. NEGLIGENCE - Necessity of Specific Allegations.-A com-
plaint in an action for personal injuries need not set out in detail the
specific acts constituting negligence. (Ala.) Louisville & Nashville
R. R. Co. v. Holland, 25.

10. NEGLIGENCE-Sufficiency of Allegations in Complaint.—
While a complaint in an action for personal injuries need not specify
the particular acts of diligence omitted, yet when simple negligence
constitutes the cause of action, it is incumbent upon the plaintiff to
bring himself within the protection of negligence averred by such
a relationship as will enable him to recover for simple negligence.
(Ala.) Louisville & Nashville R. R. Co. v. Holland, 25.

11. NEGLIGENCE-Pleading and Evidence. In an action for per-
sonal injuries the evidence must tend not only to show the negligence
alleged, but also the causal connection between it and the injury.
(Mont.) Bracey v. Northwestern Improvement Co., 738.

12. NEGLIGENCE-When a Question for Jury.-Where more than
one inference may be drawn from testimony by fair-minded men, the
court may submit issues of negligence with an instruction that it is
the province of the jury to say whether the party whose conduct is
in question has met the test rule of the prudent man. (S. C.) Lowe
v. Southern Ry., 904.

13. NEGLIGENCE.-A General Verdict for the Plaintiff in an ac-
tion against a street railway company for injuries to one attempting
to board a car will not be sustained, if there are two counts, both
good, in the declaration, one charging simple and the other gross neg-
ligence, and the court, notwithstanding its attention was called to the
matter, failed to point out the proof required to sustain the allegations
of the latter count. (Mass.) Yancey v. Boston Elevated Ry., 431.
See Death.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes.

Grounds for Granting.

NEW TRIAL.

1. NEW TRIAL-Grounds not Requiring Reversal.-None of the
other grounds of the motion for new trial require a reversal. (Ga.)
Mobley v. Lyon, 213.

2. A NEW TRIAL for After-discovered Evidence Should be Denied
when the evidence is merely cumulative and there is no showing that
it could not by due diligence have been secured in time for the trial.
(S. C.) State v. Anderson, 887.

3. NEW TRIAL-Review on Appeal.—The Decision of the circuit
court on motions for new trials for after-discovered evidence in a law
case cannot be reviewed by the supreme court except for errors of
law. (S. C.) State v. Anderson, 887.

Notice.
4.

NEW TRIAL-Premature Notice of Intention to Move.-Notice
of an intention to move for a new trial cannot be served before no-
tice of the entry of judgment. (Mont.) McIntyre v. MacGinniss,
701.

5. NEW TRIAL-Waiver of Notice of Entry of Judgment.—Al-
though formal notice of the entry of judgment may be waived by the
party moving for a new trial by instituting proceedings in support
of his motion without it, such waiver is not properly imputable to
one who inadvertently institutes his proceedings before the time at
which he may do so. (Mont.) McIntyre v. MacGinniss, 701.

6. NEW TRIAL-Service of Notice on Adverse Party.-Where
both the notice of the intention to move for a new trial and the ne-
tice of appeal are served upon the only party who appears from the
record to have any interest in opposing the purpose sought by the
motion and appeal, the service is not open to the objection that all
the adverse parties have not been served. (Mont.) McIntyre v.
MacGinniss, 701.

NONSUIT.
See Trial, 3.

NOTICES.

NOTICES Service on Attorney or Client.-Although the stat-
ute provides that all notices shall be served upon the attorney, not
upon the party, the service of notice of the dismissal of an action
by the plaintiff personally upon the defendant is not a nullity.
(Minn.) Gibson v. Nelson, 549.

Note.

Novation, doctrine of as applied to vendor's lien, 201.

OFFICERS.

OFFICER-Whether can Employ Himself.-The idea that a
public official cannot employ himself to do work for the public is
the common-law view of the implied limitations on the powers of a
trustee, but where a statute expressly authorizes the act in question,
the common law on that point stands repealed. (Ky.) Flowers v.
Logan County, 347.

See Counties; Municipal Corporations.

PARENT AND CHILD.

See Gift, 1.

PARTIES.

PARTIES.-One Tenant in Common may Sue for the Benefit of
all the tenants, in an action against a stranger to recover land, when
the cotenants are very numerous and it is impracticable to bring them
all before the court, where the statutes provide that "when the parties
are very numerous, and it may be impracticable to bring them all
before the court, one or more may sue or defend for the benefit of the
whole"; and that "any person may be made a defendant who has or
claims an interest in the controversy adverse to the plaintiff, or who
is a necessary party to a complete determination or settlement of the
questions involved therein ... and any person claiming title or
right of possession to real estate may be made parties, plaintiff or
defendant, as the case may require, to any such actions." (S. C.)
Whitaker v. Manson, 835.

PARTITION.

1. PARTITION-Right of Trustee in Bankruptcy to Maintain.—
A trustee of the estate of a bankrupt selected or appointed under the
provisions of the national bankruptcy act is without legal capacity
under the statutes of Ohio to bring and maintain a suit for the parti-
tion of real estate in which such bankrupt is a tenant in common with
others. (Ohio St.) Lindsay v. Runkle, 781.

2. PARTITION-Estate of Decedent.-The Administrator is ordi-
narily not a proper party in a partition suit brought by heirs.
St.) Stout v. Stout, 785.

(Ohio

3. PARTITION-Estate of Decedent-Payment of Debts.-The
right of an administrator to subject the lands of his intestate to the
payment of the debts of the estate is superior to the right of the heirs
at law to have partition of such lands. (Ohio St.) Stout v. Stout,
785.
4. PARTITION-Estate of Decedent-Sale for Debts.-So soon as
the administrator has ascertained that the personal estate in his hands
will be insufficient to pay all the debts, etc., of the estate, it is his
duty to forthwith apply to the probate or common pleas court for
authority to sell the lands for the payment of such debts, and in such
case the heirs at law can prevent a sale and have partition of the
lands only by giving bond for the payment of debts, etc., as provided
by section 6146, Revised Statutes. (Ohio St.) Stout v. Stout, 785.

PARTNERSHIP.

1. PARTNERSHIP -Certificate Showing Names of Partners.-
Where two persons enter into a contract as individuals, and before
suing thereon file a certificate under Remington and Ballinger's Code,
section 8369 et seq., showing that they are the only partners doing
business under an assumed name, it cannot be contended that they are
not entitled to maintain the action because they have not complied
with such statute. (Wash.) Church v. Wilkeson-Tripp Co., 1059.
2.

PARTNERSHIP.-When a Firm Note Comes into the Hands of
an Individual Partner by assignment, this operates as an extinguish-
ment of the note. He cannot sue upon the note, and can pass no such
right to another. His remedy is to be credited upon the partnership
books with the amount paid. (Ky.) Deavenport v. Green River De-
posit Bank, 386.

3. PARTNERSHIP-Purchase of Firm Note by Partner.-A part-
ner will not be permitted to purchase a partnership note and thereby
profit at the expense of the firm. The firm will be given the benefit
of any discount from the face of the note which he obtains. (Ky.)
Deavenport v. Green River Deposit Bank, 386.

4. PARTNERSHIP-Purchase of Firm Note by Partner.-A part-
ner who purchases a firm note cannot sue his copartners and obtain
judgment in an action at law. His remedy is an action for the settle-
ment of the partnership, wherein the rights of all the parties may be
adjudged. (Ky.) Deavenport v. Green River Deposit Bank, 386.

5. PARTNERSHIP-Purchase of Firm Note by Partner.-If a
bank discounts a partnership note, and sells a one-half interest in it
to one of the partners, he and his comakers are still liable to the
bank for the other half of the note. (Ky.) Deavenport v. Green
River Deposit Bank, 386.

PARTY-WALLS.

1. PARTY-WALL-Statute of Frauds.-An Oral Contract whereby
an owner of land agrees to permit coterminous proprietors to join and
use his wall in the construction of their building, upon their promise
to pay one-half of the cost of the wall, is, after they make such use of
the wall, taken out of the statute of frauds, and enforceable against
them. (Ark.) Salyers v. Legate, 107.

2.

PARTY-WALL-Structure not Built for That Purpose.-A wall
that has already been constructed by one proprietor may become a
party-wall by force of an agreement whereby an adjoining proprietor
promises to pay one-half of the cost of the wall if permitted to join
and use it in the construction of his building. (Ark.) Salyers v.
Legate, 107.

3. PARTY-WALL-Enforcement of Cost-Existence of Lien.-
Land owners, who, in constructing a building, use the wall of an
adjoining proprietor under an agreement to pay one-half of its cost,
cannot, in his action to recover the agreed amount, plead an out-
standing mortgage lien on his land. (Ark.) Salyers v. Legate, 107.
See Accord and Satisfaction; Tender.

PERJURY.

See Arbitration and Award.

PLEADING.

1. PLEADING Complaint not Subject to Demurrer.-If a cause
of action can be reasonably inferred from the allegations of a com-
plaint, it is not subject to a general demurrer. (Ark.) Cox v. Smith,
89.

2. PLEADING.—Where a Plea is Double, and One Defense set up
is good and the other bad, the plea is not subject to demurrer on ac-
count of the bad defense. A motion to strike out the imperfect part
is the proper practice. (Ala.) Western Union Tel. Co. v. Saunders,

35.

3. PLEADING.-Where a Plea is Double and Each Several De-
fense set up is imperfect, and the ground of demurrer is directed to
only one of the defenses, it is proper to sustain the demurrer.
(Ala.) Western Union Tel. Co. v. Saunders, 35.

4.

PLEADING-Showing Payments Under General Denial.-Where
the complaint in an action on a note alleges credits and that there
is a specified balance due, the defendant may show other payments
under a general denial. (S. C.) Parker v. Mayes, 912.

5. PLEADING.-A Motion to Amend an Answer is Addressed to
the discretion of the trial judge, and his action is not subject to review
unless there has been an abuse of discretion. (S. C.) Parker v.
Mayes, 912.

POLICE OFFICERS.

See Municipal Corporations, 5.

POWER.

1. POWER-Revocation by Death of One Party.-A naked power
committed to several persons is determined by the death of one,
but if coupled with an interest the power, even though discretionary,
pass to the survivor. (Ill.) Babcock v. Farwell, 284.

2. POWER-When not Terminated by Death of One Party.-A
contract by which a syndicate is entitled to the exclusive use and
possession of the real and personal property of a corporation for a
term of years as security and in compromise of a claim of members
of the syndicate creates a power coupled with an interest which is
not terminated by the death of one or two of the members. (Ill.)
Babcock v. Farwell, 284.

PRINCIPAL AND AGENT.

See Brokers.

PROBATE LAW.

See Descent and Distribution; Executors and Administrators; Wills.

Service and Return.

PROCESS.

1. PROCESS.-It is the Service of a Writ and Petition upon the
defendant, not the return, that gives the court jurisdiction over his
person. The return is merely evidence by which the court is in-
formed that the defendant has been served. (Mo.) Kahn v. Mer-
cantile Town Mutual Ins. Co., 665.

2. SHERIFF'S RETURN.-Courts will Permit Amendments to
be made to a sheriff's return of a writ to correspond with the facts,
even at a subsequent term, and the return will relate to the proper
return day. (Mo.) Kahn v. Mercantile Town Mutual Ins. Co., 665.

3. SHERIFF'S RETURN-Time Within Which Amendment may
be Made. There is no specific limitation of time within which an
amendment to a sheriff's return of service of a writ of summons must
be made. (Mo.) Kahn v. Mercantile Town Mutual Ins. Co., 665.
4.

SHERIFF'S RETURN-Discretion in Allowing Amendment.—
The allowing of an amendment to a sheriff's return of service of a
writ of summons is within the jurisdiction of the court. (Mo.)
Kahn v. Mercantile Town Mutual Ins. Co., 665.

5. SHERIFF'S RETURN-Amendment-Notice to Defendant.—
The defendant is not entitled to notice before the court permits the
sheriff to amend his return of service of a writ of summons. (Mo.)
Kahn v. Mercantile Town Ins. Co., 665.

Constructive Service.

6. PROCESS-Constructive Service-Strict Compliance.-A party
claiming the benefits of a decree upon constructive service must show
a strict compliance with every requirement of the statute. Nothing
less will invest the court with jurisdiction or give validity to the
decree when it is called into question in a direct proceeding. (Ill.)
Correll v. Greider, 327.

7. PROCESS-Constructive Service.-The Affidavit upon which
service by publication is had under section 12 of the chancery act
is jurisdictional, and the statute must be strictly complied with.
(I.) Correll v. Greider, 327.

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