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.
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.
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.
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.
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.
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.
Novation, doctrine of as applied to vendor's lien, 201.
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.
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.
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.
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.
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.
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.
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.
See Arbitration and Award.
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,
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.
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.
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.
See Descent and Distribution; Executors and Administrators; Wills.
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.
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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