right, but wind changed, causing fire to jump 1200-foot burned-off strip and destroy plaintiff's house, assuming the foreman should have protected or removed the property, it did not follow that plaintiff, an experienced woodman, could recover; the degree of care required of defendant being no higher than that required of plaintiff.-Stephens v. Mutual Lumber Co., 173 P. 1031. A lumber company setting out fire to burn waste was not bound to keep enough men to control the fire, but only to use ordinary prudence.-Id. 23(1) (Kan.) Where a minor, who was in-2 (Colo.) Where the statute authorizes the jured by the explosion of dynamite caps, left county treasurer to contract for four publicaupon the grounds of a city detention hospital, tions of delinquent tax lists, the publisher canthrough the negligence of the city employés, not recover compensation for five publications, the city was not liable on any theory of attrac- although directed so to do by the treasurer.— tive nuisance.-Frost v. City of Topeka, 173 P. Board of Com'rs of Logan County v. Advocate Pub. Co., 173 P. 398. 293. (C) Condition and Use of Land, Buildings, and Other Structures. 31 (Cal.App.) Storekeeper's violation of city ordinance prohibiting for fire protection covering of stairways with permanent flooring would not constitute negligence as to customer injured by falling through trapdoor in flooring; she not being within the class which the ordinance was designed to protect.-Corbett v. Spanos, 173 P. 769. ~~32(1) (Cal.App.) A storekeeper owes to his customer, a mere licensee in the use of a toilet supplied for employés only, no duty except to refrain from willfully or wantonly injuring her. -Corbett v. Spanos, 173 P. 769. A customer in store premises, a mere licensee as to the use of a toilet supplied for employés only, was not injured as the result of the storekeeper's willfulness or wantonness when she stepped, after leaving the toilet, into a trapdoor in the passageway opened while she was in the toilet.-Id. 5 (2) (Colo.) Where the county treasurer has directed the publisher of the delinquent tax list to omit certain names and descriptions after the reasonable compensation for setting up the omittype has been set, the publisher is entitled to ted matter, but not to the statutory price thereof as if published.-Board of Com'rs of Logan County v. Advocate Pub. Co., 173 P. 398. Under Rev. St. 1908, § 3934, legal advertising must be paid for by the statutory inch, consisting of 12 lines of the prescribed size of type and width of line, to be computed at the price fixed per line, regardless of the size of type or length of line.-Id. Under the direct provision of Rev. St. 1908, § 3934, in computing compensation for public printing, necessary blank space for display heads is to be paid for as if solid type.-Id. NEW TRIAL. See Amicus Curiae, 3: Appeal and Error, 284-302, 719, 854. 873. 934, 977, 1177, 1178; Criminal Law, 919-945. 32(2) (Cal.App.) A customer in a store who asked for the toilet and was shown by a clerk to a toilet in the rear of the premises supplied for I. NATURE AND SCOPE OF REMEDY. employés only was a mere licensee.-Corbett v.3 (Idaho) Rev. Codes, §§ 4438, 4439, denSpanos, 173 P. 769. ing a new trial and enumerating the grounds therefor, authorize a new trial only where a II. PROXIMATE CAUSE OF INJURY. former hearing has proceeded to a verdict or a decision of an issue of fact by a court or referee. 62(1) (Wash.) Assignee of property owner a-Tucker v. Hypotheek Min. & Mill. Co., 173 P. mile distant from lumber camp where fire was 749. started to burn waste which wind carried to and destroyed assignor's property could not recover from the lumber company; the sudden ehange of wind being an intervening cause. Stephens v. Mutual Lumber Co., 173 P. 1031. III. CONTRIBUTORY NEGLIGENCE. 4 (Idaho) If a motion for nonsuit is granted and a judgment of dismissal is entered, it is erMin. & Mill. Co., 173 P. 749. ror to grant a new trial.-Tucker v. Hypotheek 6 (Wash.) Trial court is vested with discretion to grant or deny a new trial.-Murray v. Star Paint & Wall Paper Co., 173 P. 721. (D) Comparative Negligence. 7 (Cal.App.) Where judgment was rendered 101 (Cal.) Under Employers' Liability Act, by default in favor of the cross-complainant on contributory negligence of injured employé if plaintiff's failure to answer the cross-complaint, slight, while employer's negligence is gross, in the court was without power to grant a mocomparison, does not bar recovery, but merely tion for new trial as to the issues raised by the authorizes diminution of damages.-Scherer v. cross-complaint.--Connell v. McGahie, 173 P. Danziger, 173 P. 85. IV. ACTIONS. (B) Evidence. 134(1) (Cal.App.) Inference of storekeeper's general invitation to customers to use employés toilet in rear of store cannot be drawn from single instance of use of toilet by customer by permission of clerk.-Corbett v. Spanos, 173 P. 769. (C) Trial, Judgment, and Review. 142 (Nev.) Special finding that defendant's conduct was "careless disregard" for plaintiff's safety rebuts assumption that its act was "will ful," "wanton," or "aggravated misconduct" or "reckless disregard" of his safety.-Crosman v. 1115. II. GROUNDS. (A) Errors and Irregularities in General. 26 (Colo.) Plaintiff is not entitled to new trial on the ground that others should have been parties; he, though knowing of such persons and their relation during the trial, making no request to bring them in till after adverse decision.-Reno v. Reno & Juchem Ditch Co., 173 P. 877. (C) Rulings and Instructions at Trial. 39 (Wash.) In action for false representations in exchange of property, where the court incorrectly stated that the measure of damages was the excess in value of plaintiff's property over that of defendant, it was proper to award (D) Disqualification or Misconduct of or Affecting Jury. NUISANCE. II. PUBLIC NUISANCES. (B) Rights and Remedies of Private Per sons. 44(4) (Kan.) Refusal of a new trial on evidence of jurors that some unknown juror stated in jury room that during a recess he examined defendant's car and found a rear fender bent 72 (Wash.) To engage in business in defiwas not error, where such evidence was only ance of laws regulating or prohibiting business cumulative upon an unimportant matter.-Rudy is nuisance per se, and one so engaging may be v. Headley, 173 P. 913. enjoined by one suffering special injury thereby, under Rem. Code 1915, §8 943, 944, 8316.Puget Sound Traction, Light & Power Co. v. Grassmeyer, 173 P. 504. (F) Verdict or Findings Contrary to Law or Evidence. 70 (Cal.App.) If the trial court, having the evidence before it, and having seen witnesses, de-75 (Wash.) One specially injured by anothtermined that verdict as to plaintiff's contribu-er's engaging in any form of business in defitory negligence was not supported by the evi- ance of laws regulating or prohibiting business dence, it was the court's duty to grant plaintiff has action to enjoin such nuisance per se, even a new trial.-Della Mora v. Favilla, 173 P. 770. though for wrong committed there is legal remedy by arrest and punishment.-Puget Sound 77(2) (Kan.) Error in computing number of Traction, Light & Power Co. v. Grassmeyer, 173 months of services where the value of services P. 504. per month had been determined and there was no substantial dispute as to the period of services would not indicate prejudice of jury.-In re Jewell's Estate, 173 P. 923. (H) Newly Discovered Evidence. 104(1) (Kan.) To afford ground for a new trial, newly discovered evidence must be other than cumulative.-McKee v. Rowley, 173 P. 284. OBJECTIONS. See Appeal and Error, 187-237, 1078; Crim- 108(1) (Kan.) To afford ground for a new trial, the proposed newly discovered evidence must be such as to make it reasonably certain to have compelled a different result, if it had See Trial, been produced at the trial.-McKee v. Rowley, 173 P. 284. III. PROCEEDINGS TO PROCURE OFFER OF PROOF. 48. OFFICERS. See Banks and Banking, 102-113; Corporations, 320, 416-426; Counties, 45-96, 146; District and Prosecuting Attorneys; Evidence, 48, 83; Injunction, 76; Justices of the Peace; Municipal Corporations, ~156;. Public Service Commissions; Quo Warranto, 55; Receivers; Sheriffs and Constables; Statutes, 64, 125. 122 (Kan.) Gen. St. 1915, § 7210, implies the existence of some one having the right to sue and be sued, and where, after death of plaintiff, recovering judgment, defendant's petition for new trial was filed under Civ. Code, $308, before representative of plaintiff's estate was appointed, petition was a nullity.-Monson I. APPOINTMENT, QUALIFICATION, v. Battelle, 173 P. 927. AND TENURE. In view of Gen. St. 1915, § 7210 (Code Civ. (G) Resignation, Suspension, or Removal. Proc. § 308), a void petition for a new trial 702 [New, vol. 17 Key-No. Series]. before an appointment of a representative of plaintiff, who after recovering judgment had died, could not be entertained on process thereunder and service upon the administrator more than one year after judgment.—Id. See Adverse Possession, 31; Agriculture, 12; Bills and Notes, 340-343; Dep (Wash.) In view of Const. Amend. 8, art. 1, § 33, Rev. Code, §§ 2334, 4940-1, 4940-3, a petition for an election for the recall of county commissioners held sufficient to charge malfeasance in office.-Thiemens v. Sanders, 173 P. 26. That a petition for an election for the recall of a county commissioner recited that the officers were guilty of misfeasance instead of malfeasance is immaterial, in view of Const. Amend. 8, art. 1, § 33, and Rem. Code 1915, §§ 4940-1, 4940-3, requiring the act or acts done to be stated in plain and concise language. -Id. Under Rem. Code 1915, § 4940-8, a statement of expenses and contribution attached to a petition for an election to recall a county commissioner, properly verified, held conclusive against a claim of omission.-Id. ositions, 56; Eminent Domain, 180; See Evidence, 471-571. OPTIONS. 118; Mortgages, 171, 510; Receivers, See Corporations, 116; Fraud, 35; 35; Taxation. 701, 703; Vendor and Purchaser, 226-232. Joint Adventures; Vendor and Purchaser, 18. ORDER OF PROOF. See Criminal Law, 680. ORDINANCES. See Municipal Corporations, 33, 108-122; PARDON. See Statutes, 118. PARENT AND CHILD. See Bastards; Guardian and Ward; Infants. ~~3(1) (Colo.) Where father and mother are separated, the father is liable for shoes furnished an infant child at the instance of the mother only if a promise to pay therefor can be implied under the circumstances.-O'Brien v. Galley-Stockton Shoe Co., 173 P. 544. der the law, Gen. St. 1915, § 11798, and not under the will, cannot be partitioned at suit of collateral heirs who were never members of testator's family, without her consent.-Breen v. Breen, 173 P. 2. (B) Proceedings and Relief. 48 (N.M.) The owner of a segregated tract, in possession cannot be proceeded against as an unknown owner in a partition suit, and is not made a party by service of process by publication against unknown owners.-Baca v. Catron, 173 P. 862. 55(2) (N.M.) Where it appears from the complaint in a partition suit and the proceedings thereunder that the parties were tenants in common when instituting the suit, it is immaterial that the complaint shows that at some time prior to the suit the property was owned in severalty.-Baca v. Catron, 173 P. 862. PARTNERSHIP. 3(3) (Colo.) Whether the circumstances under which shoes were furnished an infant child at the instance of the mother were such that a See Mines and Minerals, 99. promise of the father to pay for such shoes could be implied therefrom is a question of fact. -O'Brien v. Galley-Stockton Shoe Co., 173 P. 544. I. THE RELATION. (Cal.) An agreement between plaintiff and real estate brokers that plaintiff was to pay amount necessary for purchase of lease, and that profits remaining after repayment to plaintiff of all advances were to be divided equally, did not constitute plaintiff and brokers partners; there being no arrangement for sharing losses.-Jones v. Title Guarantee & Trust Co., 173 P. 586. 13(1) (Cal.App.) Under Motor Vehicle Act 1915, § 19, providing that no person shall allow a motor vehicle owned by him or under his control to be operated by any person "in violation of the terms of this act," where a son, driving his parent's automobile with their permission, drove it so recklessly as to strike plaintiff, standing on the sidewalk, parents were liable.-Crittenden v. Murphy, 173 P. 595.20 (Kan.) A father and son held partners Walsh v. Flatland, Id. 596. PAROL EVIDENCE. See Evidence, 397-461; Trusts, 43. PARTICULARS, BILL OF. See Pleading, 317, 320. PARTIES. For parties to particular proceedings or instruments, see also the various specific topics. For parties on appeal and review of rulings as to parties, see Appeal and Error. under a written agreement in the form of a farm III. MUTUAL RIGHTS, DUTIES, AND (B) Individual Transactions. is 98 (Wash.) The good faith required between partners forbids that a partner benefit his private interest by deceiving his copartner III. NEW PARTIES AND CHANGE OF through misrepresentations or concealments of PARTIES. 40(1) (N.M.) A formal party, or one making himself a party by his own conduct during litigation, is not entitled to intervene under Code 1915, § 4382, to subsequently litigate rights which he failed to assert in the main proceeding. -Baca v. Catron, 173 P. 862. 46 (N.M.) A person, not named in complaint nor served with summons, if having an interest in matter litigated, makes himself a party to the cause by acts and conduct amounting to a general appearance.-Baca v. Catron, 173 P. 862. V. DEFECTS, OBJECTIONS, AND AMENDMENT. 75(2) (Idaho) The court must bring into an action all parties appearing necessary to its full determination, even though no litigant objects to the defect of the parties.-Smith v. Rader, 173 P. 970. PARTITION. See Indians, 13. partnership matters.-Kittilsby v. Vevelstad, 173 P. 744. (C) Actions Between Partners. 108 (Kan.) Where one partner wrongfully holds possession of firm rights and assets and excludes the other under a claim of sole ownership, and their dealings are few and not difficult of settlement, the other may maintain ac tion at law for wrongful conversion without having an accounting in equity.-Frith v. Thom son, 173 P. 915. IV. RIGHTS AND LIABILITIES AS TO THIRD PERSONS. (C) Application of Assets to Liabilities. 178 (Kan.) The assets of a firm are to be applied in paying its debts to outsiders before either partner is to receive any part thereof.-First Nat. Bank v. Schuetz, 173 P. 278. 181 (Idaho) A creditor cannot apply funds of a partnership to payment of the separate pre-existing indebtedness of one of the partners without the consent of the remaining members of the firm.-Redfield v. Wells, 173 P. 640. II. ACTIONS FOR PARTITION. 186 (Kan.) The individual creditors of a partner have a right to his individual interest (A) Right of Action and Defenses. only, which is his share of what remains after 12(3) (Kan.) Homestead occupied by child- payment of the partnership debts, and after setless testator and his wife at his death and tlement of the accounts between the partners. (D) Actions by or Against Firms or Part ners. PENSIONS. PERPETUITIES. 208(1) (Kan.) Plaintiff, in action against See Constitutional Law, 211. an individual partner, who garnishees the funds of the firm, acquires an interest only to the extent of the debt, which is his interest in bal-1 ance after firm's debts, and equities of partners are satisfied.-First Nat. Bank v. Schuetz, 173 P. 278. 208(5) (Kan.) In action against an individual partner, with garnishment of funds of firm, where the court has before it all the parties claiming an interest in the fund, it is proper to take an accounting of the partnership af fairs.-First Nat. Bank v. Schuetz, 173 P. 278. VII. DISSOLUTION, SETTLEMENT, AND ACCOUNTING. (A) Causes of Dissolution. 2592 (Wash.) A partnership not stipulating the period for its duration may be dissolved by partner at any time.-People's Sav. Bank v. First Nat. Bank, 173 P. 52. (D) Actions for Dissolution and Accounting. 325(2) (Mont.) A receiver will not be appointed on account of fraudulent statements in sale of part of a business, continuing fraudulent misappropriation of money by solvent partner or for lack of harmony between partners, where complainant is not denied participation in the business, in view of Rev. Codes, § 5482.-Masterson v. Hubbert, 173 P. 421. PART PAYMENT. See Limitation of Actions, 155. PART PERFORMANCE. See Frauds, Statute of, 129. PASSENGERS. See Carriers, 247-347. PATENTS. (Cal.App.) Payment in accordance with trust to persons in charge of upkeep of cemetery to care for plot for all time held not to involve a perpetuity.-Rutherford v. Ott, 173 P. 490. 6(1) (Kan.) A contract giving an option to purchase real property, without limiting the time which purchase may be made, is void as violating the rule against perpetuities.-Henderson v. Bell, 173 P. 1124. 8(1) (Wash.) A will held to establish a trust fund, vesting immediately on testator's death, in and for designated charitable uses, rather than one trust for accumulation and a later trust for the charity, and so not to violate rule against perpetuities; postponement of enjoyment and the fact of successive trustees, though having different duties, being immaterial.-In re Galland's Estate, 173 P. 740. PERSONAL INJURIES. See Carriers, 280-347; Damages, 132; PETITION. See Municipal Corporations, 108. PHYSICIANS AND SURGEONS. See Criminal Law, 371; Evidence, 543, 571; Intoxicating Liquors, 168; Trial, 396. 6(10) (Wash.) Evidence held sufficient to sustain verdict of guilty of practicing dentistry without a license.-State v. Austin, 173 P. 725. 14 (1) (Cal.App.) The implied contract of a physician is that he possesses a reasonable degree of learning and skill which he will apply to the treatment of the case, and if he possess and use such skill therein, he is not liable for the result.-Foreman v. Hunter Lumber Co., See Municipal Corporations, 330; Public 173 P. 408. PAYMENT. See Appeal and Error, 158; Attorney and II. APPLICATION. 47(2) (Or.) Where mortgagor had agreed that proceeds of new mortgage should be applied on one of two mortgages on land and on unsecured debts, that he had agreed with purchaser of land to apply proceeds on both mortgages gave purchaser no right as against mortgagee to claim both mortgages had been paid. Schirber v. Greene, 173 P. 256. IV. PLEADING, EVIDENCE, TRIAL, 14(1) (Cal.App.) A physician is required to possess only ordinary skill in his profession, and to use his best judgment in the exercise of that skill.-Linn v. Peirsol, 173 P. 763. 15 (Cal.App.) Negligence on the part of a physician consists in his doing something which he should not have done or omitting to do something which he should have done.-Foreman v. Hunter Lumber Co., 173 P. 408. 15 (Cal.App.) Where, after performance of from hemorrhage because of use of catgut, defirst operation on plaintiff, trouble resulted fendant physician cannot be held liable for consequences resulting from use of silk on second operation; it being at most a mistake in Peirsol, 173 P. 763. judgment in weighing probabilities.-Linn v. 15 (Colo.) Physician attending child suffering from scarlet fever is liable for damage resulting from his failure to keep informed as to condition of child and progress of disease, where he made no effort to inform himself thereof. Tadlock v. Lloyd, 173 P. 200. 74(1) (Okl.) A receipt is Lot an instrument that the law requires for protection of, or as notice to, third parties, but is only prima facie evidence of payment of an obligation.-Kuyken-18(4) (Cal.App.) A complaint alleging dall v. Lambert, 173 P. 657. PENALTIES. See Damages, 78-81; Taxation, 841. a course of treatment entirely consistent with the physician's exercise of all necessary care and skill, but alleging nonsuccess of the treatment, is insufficient to charge negligence or 840, malpractice.-Foreman v. Hunter Lumber Co., 173 P. 408. I. NATURE AND GROUNDS, AND EX TENT OF LIABILITY. 3 (Wash.) Penalties are not favored in equity. Cogswell v. Brown, 173 P. 623. A complaint to charge a physician with liability for negligence must allege such negligent act or omission, for otherwise it will be presumed he used the necessary care and skill. -Id. 18(8) (Colo.) In action against physician for | preliminary to issue have been complied with negligence in caring for patient suffering from in absence of averments in complaint negativing scarlet fever, evidence held sufficient to show such matter.-Grater v. Logan County High physician made no effort to inform himself of School Dist., 173 P. 714. condition of patient, or of progress of disease.Tadlock v. Lloyd, 173 P. 200. See Continuance, 14; Estoppel, ~68; For pleadings in particular actions or proceed- II. DECLARATION, COMPLAINT, PE- 48 (Idaho) It is incumbent upon plaintiff to allege in his complaint all the ultimate facts essential to entitle him to recover, and otherwise the complaint is demurrable.-Hyatt v. Humbird Lumber Co., 173 P. 1085. 49 (Cal.App.) To determine question of trial court's jurisdiction, Appellate Court must look to averments of complaint setting forth facts of cause of action.-Hoffman v. Pacific Coast Const. Co., 173 P. 776. 72 (Cal.App.) In view of Code Civ. Proc. § 580, plaintiff may have some relief, and court has jurisdiction, though complaint does not contain demand for relief, as required by section 426, where issue has been raised by answer. -Hoffman v. Pacific Coast Const. Co., 173 P. 776. III. PLEA OR ANSWER, CROSS-COM- OF DEFENSE. (A) Defenses in General. 85 (1) (Okl.) Where plaintiff, a resident, sued defendant, a resident of Texas, and caused service of summons on defendant in Texas, requiring answer to petition on or before April 14, 1914, such service being, under Rev. Laws 1910, § 4727, a service by publication, a subsequent personal service on defendant voluntarily within the trial court's jurisdiction superseded (Nev.) The only source of authority for the former summons and fixed the answer date. any pleading and the rules for the construc--Dickinson v. Foot, 173 P. 522. I. FORM AND ALLEGATIONS IN GEN- tion thereof are drawn from the Practice Act. 93(1) (Okl.) Inconsistent defenses are per-Walser v. Moran, 173 P. 1149. missible under the practice in Oklahoma unless prohibited by statute.-Metcalf v. Glaze, 173 P. 446. 8 (1) (Or.) The pleader should state facts upon which he bases his right to recover rather than conclusions of law.-Dryden v. Daly, 173 P. 667. (Cal.App.) While some of alleged facts may be evidentiary, it was proper for petitioner to state such facts as he deemed to constitute waiver relied on in his petition.-Fest v. Superior Court of California in and for Sonoma County, 173 P. 610. 93(2) (Okl.) In action for damages from obstruction to channel of water course, defendant may deny the existence of the channel and plead that he had placed an embankment on his own land, and not in the channel, and had acquired the right to maintain it by prescription.-Metcalf v. Glaze, 173 P. 446. (C) Traverses or Denials and Admissions. 21 (Cal.App.) In an action for damages for trespass and for injunction to restrain fur-120(1) (Cal.App.) Abstract company being ther trespass, cross-complaint was not contradictory by reason of its setting up a private easement in the cross-complainant and a public easement in the use of the navigable waters which were the subject of the action.-Connell v. McGahie, 173 P. 1115. 21 (Nev.) Plaintiff in equity action will not be permitted to rescind a contract for fraud, and, failing in this, to recover damages for breach, and relief for violation of fiduciary obligation created by the contract; such relief being inconsistent.-Walser v. Moran, 173 P. 1149. sued for wrongful delivery of check, deposited to be delivered to payee when title to certain property vested in payee, does not deny plaintiff's allegations that title never vested in payee by alleging that it did not deliver check until title was "vested of record" in payee, and that payee had "apparent record title."-Hopkins v. Fresno County Abstract Co., 173 P. 106. 127(1) (Utah) In action on note and to foreclose stock given as security, answer of defendants, one of original makers, and the administrator of the other, denying that the deceased maker left any property in M. county, held not a disclaimer of interest in the stock calling for dismissal of defendants' appeal on ground they had no interest in litigation, since all other issues had been disposed of.-Robison V. Gull, 173 P. 905. 35 (Cal.) Where deed contained restrictions violated by purchaser, and vendor sued to recover land on theory that deed should be reformed to apply the restrictions more definitely, when in fact they did apply as written his allegations looking to reformation should be dis-127(2) (Wash.) Counterclaim for abandonregarded as superfluous.-Los Angeles & Arizona ment of contract is not inconsistent with adLand Co. v. Marr, 173 P. 83. mission in answer of a certain amount being due for work under the contract.-Smith Sand & Gravel Co. v. Corbin, 173 P. 16. 36(3) (Ariz.) In state's action against bail on their recognizance, Supreme Court will not hear defendants to argue there were two un-129(1) (N.M.) Matters properly pleaded, dertakings put in, when they alleged in their which are not denied, stand admitted.-Boes v. answer there was but one.-State v. Merck, Howell, 173 P. 966. 173 P. 349. 37 (Colo.) In an action to restrain collection of taxes to pay interest on high school bonds, it must be presumed that the bonds contain recitals that all statutory requirements 129(2) (Okl.) In a suit by dealer to recover a commission for the sale of an engine, etc., where the petition alleged that a third person was the agent of defendant, and such allegation was not denied, it would be treated as ad |