(G) Surprise, Accident. Inadvertence, or
Mistake.

97 (Mich.) Too late to claim surprise, when
no such claim made when plaintiff made elec-
tion. In re Turner's Estate, 402.

(H) Newly Discovered Evidence.
›102(5) (Wis.) Motion for new trial because
of newly discovered evidence held properly
overruled for lack of diligence.-Seemann v.
Kastner, 153..

104(3) (Minn.) Denial for newly discov
ered cumulative evidence not abuse of discre-
tion.-Spangenberg v. Christian, 700.

104 (3) (Wis.) Newly discovered evidence
held insufficient to authorize.-Seemann v. Kast-
ner, 153.

III. PROCEEDINGS TO PROCURE NEW
TRIAL.

131(5) (S.D.) Clerk's failure to attach
certificate to remainder of record did not re-
quire judge to deny motion for new trial.-
Haaser v. Englebrecht, 572.

II. PROXIMATE CAUSE OF INJURY.
56 (3) (Wis.) Causal connection between
violation of statute and injury essential.-
Schmidt v. Wisconsin Sugar Co., 222.
59 (Wis.) Anticipation of specific injury
unnecessary.-Kausch v. Chicago, Milwaukee 163(2) (Minn.) Court in denying new trial
Electric Ry. Co., 257.
held not to have considered ground of newly
discovered evidence.-Ricker v. J. L. Owens
Co., 702.

III. CONTRIBUTORY NEGLIGENCE.

(C) Imputed Negligence.

NONSUIT.

93(1) (S.D.) Automobile driver's negligence See Dismissal and Nonsuit.
not imputable to guest.-Eads v. Tiede, 823.

93(1) (Wis.) Automobile driver's negli-
gence not imputed to guest.-Chase v. Ameri-
can Cartage Co., 598.

93(2)(Iowa) Husband's negligence in driv-
ing not imputable to wife riding.-Waring v.
Dubuque Electric Co., 42.

(D) Comparative Negligence.
101 (Minn.) Railroad employé going to
work within comparative negligence rule.-Sin-
derson v. Payne, 237.

See Bills and Notes.

NOTES.

NUISANCE.

II. PUBLIC NUISANCES.

(A) Nature of Injury, and Liability There-

for.

60 (N.D.) Statute authorizing injunction to
abate bawdyhouse nuisance held constitutional.

101 (Wis.) Contributory negligence ground
for apportionment of damages under federal-State v. McCray, 280.
act.-Richter v. Chicago, M. & St. P. Ry. Co.,

616.

IV. ACTIONS.

(B) Evidence.

121 (5) (Iowa) Proximate cause of injury
must be shown.-Freeby v. Incorporated Town
of Sibley, 685.

(C) Trial, Judgment, and Review.
136(5) (Wis.) Question for jury.-Isgro
v. Plankinton Packing Co., 606.

136 (25) (Wis.) Proximate cause for court
when clear from facts.-Schmidt v. Wisconsin
Sugar Co., 222.

136 (26) (Neb.) Contributory negligence
question for jury.-Kroger v. Gordon Fireproof
Warehouse & Van Co., 312.

138(2) (Neb.) Instructions on burden of
proof held sufficient.-Kroger v. Gordon Fire-
proof Warehouse & Van Co., 312.

Statute directing seizure of property alleged
a bawdyhouse nuisance held unconstitutional.
-Id.

64 (N.D.) Human habitation not a nui-
sance per se.-State v. McCray, 280.

(C) Abatement and Injunction.
83 (N.D.) Property not a nuisance per se
may not be destroyed summarily without no-
tice.-State v. McCray, 280.

OBLIGATION OF CONTRACTS.
See Constitutional Law, 143.

OFFICERS.

See Judges; Justices of the Peace; Public
Service Commissions; Receivers; Sheriffs
and Constables.

138(4) (Neb.) Instruction on contributory
negligence inapplicable.-Dirks v. Ensign Om-I. APPOINTMENT, QUALIFICATION, AND
nibus & Transfer Co., 525.

NEGOTIABLE INSTRUMENTS.

See Bills and Notes.

NEW TRIAL.

See Criminal Law, 919-938.

II. GROUNDS.

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

72 (Wis.) Granting new trial on ground
verdict was against weight of evidence held not
abuse of discretion, though court on appeal had
intimated different opinion.-John v. Pierce,

TENURE.

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

54 (Wis.) Hold office until successor qual-
ifies.--State v. Johnson, 729.

(G) Resignation, Suspension, or Removal.
702 [New, vol. 17 Key-No. Series]

(N.D.) Secretary of State exercises duty
and discretion concerning sufficiency of recall
petitions.-State v. Hall, 284.

No objection made, presumption is that Sec-
retary of State performed duty and exercised
discretion as to recall election.-Id.

702 [New, vol. 17 Key-No. Series]
(S.D.) Recall provisions of Primary
Election Law construed.-Burns V. Circuit

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

III. RIGHTS, POWERS, DUTIES, AND

erty sold by partner to defraud partner.-Scott
v. Mundy & Scott, 207.

119 (Neb.) Pleadings held to sustain dis-296 (3) (Iowa) Evidence held to show pri-
missal of suit to recover salary paid to officer. ma facie a sale of half of partners' interest in
oil leases.--Scott v. Mundy & Scott, 207.
-Reigle v. Cavey, 323.

Evidence as to a sale of firm property held
to show that if made by a partner it was un-
authorized and intended to defraud his copart-

13 (Iowa) Governor may commute sen- ner.-Id.
tence.-State v. Olander, 53.

(D) Actions for Dissolution and Account-
ing.

III. MUTUAL RIGHTS, DUTIES, AND LIA-34 (7) (N.D.) Complaint first challenged on

BILITIES OF PARTNERS.

(A) Firm Property and Business.
78 (Iowa) Partner liable to the firm or
copartner for fraud and concealment of a mis-
appropriation.-Scott v. Mundy & Scott, 207.
83 (Mian.) Partner's claim for compensa-
tion sustained where it can be fairly implied
that compensation was intended.-Sons v. Sons,
809.

IV. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.

(D) Actions by or Against Firms or Part-pal

236 (7) (Minn.) Refusal to allow amend-
ment of answer by setting up set-off or coun-
terclaim in midst of trial within court's discre-
tion.-Stannard v. National Land Agency, 792.

236 (7) (Wis.) Refusal late in course of
trial to allow amendment pleading new defense
held not abuse of discretion.-Ehlers v. Gold,
596.

248(1) (Iowa) Amendment setting up new
cause of action not permitted.-Stewart v.
Stewart, 833.

279(4) (Iowa) Supplemental pleading may
not set up new cause of action.-Stewart v.
Stewart, 833.

X. FILING, SERVICE, AND WITHDRAWAL.
340 (Iowa) Substitution proper where lost.
--Shuck v. Conway, 858.

XI. MOTIONS.
356(1) (Iowa) Amendment to answer after
amendment of petition held erroneously strick-
en.-Bringolf v. Parkhurst Auto Co., 11.

359 (Minn.) Answer alleging agreement for
deferring time of payment held properly strick-
en as sham.-Naftalin v. La Salle Holding Co.,
128.

360 (3) (Minn.) Plaintiff held not to have
sustained burden of showing defendants' answer
to be sham, false, and frivolous, so as to au-
thorize striking it.-Henning v. Carlson, 799.
XIII. DEFECTS AND OBJECTIONS, WAIV-
ER, AND AIDER BY VERDICT
OR JUDGMENT.

432 (Wis.) Consent judgment waives de-
fects in pleadings and irregularities.-Duras v.
Keller, 149.

PLEDGES.

ity has implied authority to warrant.-Pioneer
Electric Co. v. McCurdy, 776.

(D) Ratification.
of benefits
171(1) (Minn.) Acceptance
without inquiry held ratification of agent's un-
authorized acts.-Pioneer Electric Co. v. Mc-
Curdy, 776.

171(4) (Minn.) Principal held to have rati-
fied unauthorized warranty of quality by agent.
-Pioneer Electric Co. v. McCurdy, 776.

173(1) (Neb.) Burden of showing ratifica-
tion is on one alleging it.-W. T. Rawleigh Co.
v. Bunning, 331.

PRINCIPAL AND SURETY.

See Guaranty.

III. DISCHARGE OF SURETY.

125 (Minn.) Note holder's failure to pre-
sent in probate court for payment from mak-
er's estate does not release surety.-Manches-
ter Sav. Bank v. Lynch, 794.

PROCESS.

I. NATURE, ISSUANCE, REQUISITES, AND

VALIDITY.

19 (Neb.) Transitory action may be brought
against two defendants jointly liable in any
county where one of them may be served with
summons, and summons may issue to other
county. First State Bank of Whitman v. In-
grum, 334.
II. SERVICE.

(B) Substituted Service.

72 (S.D.) Service by leaving copy of sum-
mons at dwelling can only be made on resident.

36 (Minn.) Evidence held not to justify find--Johnson v. Bruflat, 877.
ing of fraud.-Giller v. First Nat. Bank, 816.

POLICE POWER.

See Municipal Corporations, ~614-625.

PRACTICE.

(C) Publication or Other Notice.
84 (Iowa) Notice by publication construc-
tive only.-Curtis v. Hoyt, 460.

85 (Iowa) Statute directing service by pub-
lication to be strictly observed.-Curtis
Hoyt, 460.

V.

For practice in particular actions and proceed-87 (Iowa) Publication service on actual
ings, see the various specific topics.

PRESCRIPTION.

See Adverse Possession; Limitation of Actions.

PRINCIPAL AND AGENT.

See Attorney and Client; Brokers; Factors.

II. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.

(A) Execution of Agency.

resident a nullity.-Curtis v. Hoyt, 460.

(D) Privileges and Exemptions.
120 (Neb.) One defendant cannot claim
privilege of exemption from summons for a
codefendant.-First State Bank of Whitman v.
Ingrum, 334.

(E) Return and Proof of Service.
135 (S.D.) Judgment roll held to show
prima facie lack of jurisdiction.-Johnson v.
Bruflat, 877.

72 (Wis.) Agent investing principal's mon-
ey in his own name held guilty of conversion.-138 (Iowa) Proof required for notice by
publication element of jurisdiction.-Curtis v.
Regas v. Helios, 165.
Hoyt, 460.

79(3) (Neb.) Agent failing to take bond as
requested, but taking another security, held
not guilty of conversion, but liable for princi-
pal's actual damages.-Bourquin v. Atlanta
State Bank, 986.

138 (S.D.) Testimony of publisher held to
remove prima facie truth of affidavit of pub-
lication.-Johnson v. Bruflat, 877.

PROMISSORY NOTES.

79(5) (Wis.) Evidence held to show princi-
pal did not acquiesce in agent's misappropria- See Bills and Notes.
tion of funds.-Regas v. Helios, 165.

79(9) (Neb.) Agent paying fund contrary
to principal's direction liable for actual dam-
ages sustained.-Bourquin v. Atlanta State
Bank, 986.

(B) Compensation and Lien of Agent.
89(9) (Iowa) Whether subagent released
bonus to limited agent held for jury.-Babb v.
Herring Motor Co., 672.

III. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.

(A) Powers of Agent.
104(2) (Minn.) Agent authorized to sell
property usually subject to warranty of qual-

PROPERTY.

6 (Iowa) Status of person as to taking
rights in another's property fixed by law of
domicile.-Webster v. Modern Woodmen of
America, 659.

PUBLIC IMPROVEMENTS.
See Municipal Corporations, 323-502.
PUBLIC. SERVICE COMMISSIONS.

6 (Mich.) Jurisdiction must affirmatively
appear in the statute.-Taylor v. Michigan Pub-
lic Utilities Commission, 485.

1061

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

PUBLIC SERVICE CORPORATIONS.

See Carriers; Electricity; Gas;

Street Railroads.

QUIETING TITLE.

Railroads;

II. RAILROAD COMPANIES.

(G) Injuries to Persons on or near Tracks.
(S.D.) Independent contractor's
—355(5)
employee visiting cinder pit_held a trespasser.
-Polluck v. Minneapolis & St. L. R. Co., 830.

381 (2) (S.D.) Independent contractor's
employee visiting cinder pit_held negligent.-
Polluck v. Minneapolis & St. L. R. Co., 830.
(H) Injuries to Animals on or near Tracks.

430 (Iowa) Notice of loss essential to re-
covery of double damages for killing stock.-
Lister v. Chicago, R. I. & P. Ry. Co., 8.

Excessive demand defeats recovery of double
damages for killing stock.-Id.

Verdict for double damages for killing cows
held to show excessive claim in notice of loss.

-Id.

443 (1) (Iowa) Owner of cattle killed not
bound to show negligence beyond reasonable
doubt.-Lister v. Chicago, R. I. & P. Ry Co., 8.

443 (2) (lowa) Killing of cattle by cars
provable by circumstantial evidence.-Lister v.
Chicago, R. I. & P. Ry. Co., 8.

Evidence held to show killing of cattle by
train.-Id.

446 (2) (Iowa) Proximate cause of injury
to animals question for jury.-Lister v. Chicago,
R. I. & P. Ry. Co., 8.

RAPE.

II. PROSECUTION AND PUNISHMENT.
(B) Evidence.

40(3) (Minn.) Proof of illicit relations with
others competent.-State v. Perry, 310.

42 (Minn.) In prosecution for statutory
rape, evidence that girls under 18 frequented
defendant's place of business and rode about
with him held incompetent.-State v. Friend.
241.

51(4) (S.D.) Evidence held to sustain con-
viction in the first degree.-State v. Campbell,
952.

33 (2) (Minn.) Service of process on solicit;51(7) (Neb.) Evidence held sufficient to
ing agent of foreign railway valid.-Farmers' identify the defendant as the offender.-Porter
Co-op. Equity Co. v. Payne, 130.
v. State, 1006.

V. RIGHT OF WAY AND OTHER INTER-

52(1) (Minn.) Evidence held to sustain
conviction of statutory rape.-State v. Friend,
ESTS IN LAND.
241.
to sustain
75(3) (Iowa) City's consent to interurban 52(1) (Minn.) Evidence held
railway's spur track necessary.-Interurban Ry. conviction for statutory rape.-State v. Dahl,
580.
Co. v. City of Des Moines, 654.

X. OPERATION.

(B) Statutory, Municipal, and Official
Regulations.

225 (Minn.) Agent service required by stat-
ute.-Citizens of Hines v. Minnesota & I. Ry.
Co., 797.

(C) Trial and Review.

59(3) (Neb.) Instruction as to corrobora-
tion of prosecutrix, referring to denial of accu-
sation, held error.-Porter v. State, 1006.

REAL ACTIONS.

Order to enlarge depot and provide agent See Partition; Quieting Title.
service justified.-Id.

(D) Injuries to Licensees or Trespassers
in General.

2732 (S.D.) Duty to employee of inde-
pendent contractor stated.-Polluck v. Minne-
apolis & St. L. R. Co.. 830.

282 (9) (Minn.) Evidence that defects in
brake on freight car handled caused injury held
to justify directed verdict.-Benedict v. Chi-
cago, B. & Q. R. Co., 296.

(F) Accidents at Crossings.

RECEIVERS.

1. NATURE AND GROUNDS OF RECEIVER-
SHIP.

(B) Grounds of Appoiutment of Receiver.

16 (Mich.) Appointment of receiver for
creamery company's real estate and income by
trial court held proper, on account of complex-
ity of property.-National Bank of Commerce
v. Corliss, 717.

V. ALLOWANCE

AND PAYMENT OF
CLAIMS.

350 (3) (Iowa) Evidence of negligence as
to automobile driver insufficient for jury.-Ma-153 (Iowa) Not liable for invalid tax as-
sessed against corporation after appointment.
garian v. Chicago, B. & Q. R. Co., $37.
350(7) (Iowa) Negligence in starting train-Union Petroleum Co. v. Indian Petroleum
striking automobile held for jury.-Seaton v. Co., 439.
Western Asphalt Paving Corporation, 458.

RECORDS.

350 (7) (Mich.) Signal question for jury. See Appeal and Error, 500-695; Criminal
Kosnicki v. Pere Marquette Ry. Co., 493.

350(15) (Iowa) Contributory negligence of
automobile driver making detour around end of
train held for jury.-Seaton v. Western As-
phalt Paving Corporation, 458.

Law, 1114.

REFERENCE.

See Arbitration and Award.

75 (Minn.) Referee has substantially same See Vendor and Purchaser.
powers as a trial judge where appointed to re-
port a judgment but may not entertain motion
for new trial.-Sons v. Sons, 809.

(A) By Agreement of Parties,
89 (Wis.) Contract held not modified by
check sent in response to seller's proposal to
extend time of performance.-Quaker Maid
45 (9) (Iowa) Evidence held to show true Corporation v. New Holstein Canning Co., 590.
intent of lease that landlord would tile 7092 (Iowa) Rescission arises only by mutual
acres of land.-Costello v. Stokely Grain Co., consent.-Bringolf v. Parkhurst Auto Co., 11.
842.