MORTGAGES-Continued. Status of the mortgagee with power to sell, 239. When court will enjoin mortgagee from selling, or, in Aliter as to cars and monies, 430. Power to sell continues as long as debt survives, 456. Securing money which was never loaned, inoperative, Endorsement of note to prior mortgagee an extinguish- Stipulation to pay without relief from appraisement and Covenant to pay at a specific time, 336. Mortgagee may maintain action at law upon a note, 336. Separate action for payment of money and for foreclos- Right to foreclose in Nebraska against estate of decedent; Rights of a holder of a recorded but unindexed mortgage; Mortgage securing future advances; rights of subsequent Equity of redemption not subject to attachment in Mas- Judgment of foreclosure; putting plaintiff in possession, Foreclosure of mortgages under the New York code; 398. Value of land, how ascertained where it has been con- [See also RES ADJUDICATA.] In an action by the bona fide holder of a negotiable mu- But see note by M. A. L. criticising this case, 137 to 140. Not competent for voters of township in Missouri to In an action by a bona fide holder of a negotiable munic- Precinct bonds in aid of wagon roads in Nebraska; prop- MUNICIPAL CORPORATIONS. [As to special tax bills for street improvements, see TAX- ATION. As to liability of municipal corporations for negligence. The scheme and charter for the government and separa- MUNICIPAL CORPORATIONS-Continued. tion of St. Louis city and county, and for the govern. Special assessments for street improvements can not be Forcible entry and detainer by; liability of, for torts of Assignment of debt due as salary of office from municipal Power of, to regulate the landing of boats at different Power to collect wharfage fees graduated upon tonnage When liable for trespass, 468. Liable for establishing new channel of river across Presumption that a city has been properly incorporated 503. Duty of city to keep bridge in repair, or to erect one in Not subject to garnishment in respect of its employees' In action against municipal corporation for destruction Condemning land for parks; special assessments; who Discussion of the subject of sewer taxes, 307. Illinois Act of 1872, section 44, not applicable to condem. All questions to be submitted to the same jury, 167. Action against city for failure to open street; mandamus Legislative recognition of right to construct railroads Public right to use street railroad track for ordinary Streets of towns in Iowa may be occupied by railways What constitutes abutting property, 569. Liability of City of St. Louis for loss occasioned by Right of railroad company to maintain a railroad for the MURDER. [See HOMICIDE.] NAMES. The ancient doctrine that but one christian name is NATIONAL BANKS. Power of national banks to receive collateral security; In General. When a question of law and when a question of fact. Action for injuries caused by negligence in excavating Landlord answerable for negligence of tenant, when, 503. NEGLIGENCE-Continued. Action for damages for keeping ferocious dog; evidence Negligence in Texas a question for Jury. Texas, etc., R. A question for jury, 311. Contributory Negligence. In action by husband and wife for injuries to wife, no de- Brakeman attempting to pick coupling-pin from the Instruction to the effect that plaintiff was entitled to re- When a question of law and when a question for the jury, Rule of comparative negligence illustrated; person killed Negligence not imputable to parents for not keeping con- Action for injuries resulting to a workmen from an al- Liability of corporation for injury to servant through the Ground of liability of railway company to servant, 431. Proximate and Remote Cause. The contributory negligence which will justify a nonsuit Horse breaking loose from hitching post in consequence Liability of owner for escape of water from reservoir Negligent killing of child; contributory negligence of What plaintiff, in action against_railway company for Killing person walking on track; contributory negli- Not wanton negligence to run railway trains at a higher Fireman is not presumed to know the unsafe condition Brakeman attempting to pick coupling-pin from the track, Fire communicated by locomotive; presence of combus. When conductor is not chargeable with notice of persons Necessary to aver, in an action against a railway com. Ground of liability of railway company to servant; lia- Killing child of tender years, 526. NEGLIGENCE-Continued. Injury to one on platform who was not a passenger, 527. 550. Right of action against railway companies for personal Killing stock; failure to ring bell or sound whistle, 599. Effect of stacking hay near the railroad track with dry Municipal Corporations. Action does not lie to compel city to open street in a Not actionable negligence in city to fail to light streets, Right of action for injury by falling into a hole in conse- Duty of city in providing safe hitching posts; reasonable Gross negligence in, to permit ditch filled with five feet Non-liability of municipal corporation for insufficiency Right of recovery where married woman was injured in The fact that husband occupied the market-house with Extent of duty of municipal corporations in keeping Liability for defective streets; injuries where insufficient Duty of town to erect barriers around dangerous place Aliter, if the dangerous place is at distance from high- NEGOTIABLE AND ASSIGNABLE PAPER. Discharge of maker by the addition of another maker Endorsement on back of bill of exchange that if the bill Aliter, in case of a county bond or order payable to a Right of owner of lost negotiable instrument to main- Equitable owner of lost note may not maintain action In transfer of stocks, trust not presumed; presumption Under what circumstances giving of negotiable paper is Transfer of dishonored paper; release of indorser; de- What constitutes a negotiable note; note promising to NEGOTIABLE AND ASSIGNABLE PAPER-Continued. Negotiability of notes issued by building associations; liability of indorsers thereon; effect of semblance of seal does not destroy the negotiability of the instrument, 284. Promissory notes given for excessive sum void only as to excess, 486. Indorsement before maturity as collateral security for debt; rights of endorsee, 407. Demand upon endorser one day too late discharges him, 431. Bills of exchange drawn against shipments, specific appropriation of proceeds of sale of goods shipped, to the payment of bills of exchange drawn against them in case of bankruptcy of purchaser, 473. Status of third party who endorses the note before it has been endorsed and transferred to the payee, 502. Endorsement by factor upon check used in remitting money, 502. Maker not liable on note given to bank making colorable show of assets, 502. Rights and liabilities of acceptor of bill of exchange, 527. Contribution between accommodation parties to a note; parol evidence admissible to show nature of the transaction; presumption that accommodation makers are co-sureties, 571. Implied authority to fill blanks in promissory note does not extend to authority to alter anything which is complete, 588. Days of grace, 599. Authority to fill blanks in promissory note, when implied, 527. Evidence of parol agreement that endorser shall not be bound, 551. Effect of joining in note signed by principal and by one as his surety, and entrusted by surety to principal without limit to his authority, 571. Right of one surety to stipulate that he signs as surety for one of the prior parties and not as co-surety with the prior surety, 571. Such stipulation need not be in writing but may be shown by parol, 571. Time for giving notice of protest; article by W.P. Wade, Esq., 242. Notice of protest, by whom and to whom given; articles by W. P. Wade, Esq., 267, 364. What is sufficient notice of protest, 528. Certificate of deposit when negotiable; remedy of final endorsee in such case, 309. Note taken for pre-existing debt, no payment, when, 312. Necessity for producing or accounting for note at trial, 212. [See also EASEMENT; CONFISCATION.] What constitutes a sufficient notice of dissolution to discharge a member of a firm from a claim of one who had no dealing with it prior to its dissolution, but who knew of its existence, etc. Lovejoy v. Spafford, 80. Possession of real estate as notice of adverse title; article by W. P. Wade, Esq., 122. Notice to agents; article by W. P. Wade, Esq., 195. Notice of protest, by whom and to whom given; articles by W. P. Wade, Esq., 267, 364. Effect of recording a deed without indexing as notice to subsequent purchaser, 387, 446, 568. Publication in journals, printed on patent outsides, 529. Received from title papers; article by W. P. Wade, Esq., 458. NOTICE-Continued. What is due notice of protest, 528. Actual notice; article by W. P. Wade, Esq., 291. By publication; letter of L. G. H. explaining statute of New York in regard to provisions of that state requir ing notice of execution sale to be publicly advertised previously for six months, 305. NOTICE TO QUIT. [SEE FORCIBLE ENTRY AND DETAINER.] NUISANCE. Distinction between nuisance and trespass; continuing wrong doer. Kansas Pacific R. R. Co. v. Mihlman, 108. A party who enters another's lands and commits a trespass by digging a ditch, is liable as a trespasser if he reenters to fill up the ditch. Ibid. In action against municipal corporation for destruction of property by a mob, it is no defense that the property was used in such manner as to constitute a nuisance, 185. Action for nuisance for permitting dead animal to remain on premises does not survive on death of husband, 189. County not liable for nuisance in erecting a public jail near plaintiff's residence nor for keeping it in a filthy condition, 335. Action for damages for keeping ferocious dog; evidence as to ferocious character of dog, 329. Noise caused by ringing of church bells in city, when a nuisance; injunction to restrain such nuisance, 329. OBITER DICTA. Nothing authoritive in a decision, except what is required to be decided. Love v. Miller, 152. OBLIGATION OF CONTRACTS. [See CONSTITUTIONAL LAW.] OBSTRUCTING HIGHWAY. OFFICES AND OFFICERS. Vacancy in office, when successful candidate is duly qualified. State v. Seay, 156. Right of usurping officer to abandon office before his successor is duly elected and qualified. Ibid. Whether a vacancy exists in an office is a judicial question. Ibid. Remedy against defaulting constable, 572. In a suit against officers in their official capacity, where they subsequently go out of office, it is error to permit plaintiffs to change cause of action and to litigate at the costs of such original defendants, 575. Road supervisor, when acting in good faith within scope of authority, not liable personally; sufferers must resort to statutory mode of redress, 549. Statute providing penalty against town constable for refusing to qualify, constitutional, 287. PARTITION. Equity jurisdiction an ancient one, and not ousted in Missouri by statute of partition, 166. No power to order sale of land when one defendant is tenant by curtesy, 191. PARTNERSHIP. What constitutes a sufficient notice of dissolution to discharge a member of a firm from a claim of one who had no dealing with it prior to its dissolution, but who knew of its existence, etc. Lovejoy v. Spafford, 80. Construction of bond to liquidate debt of partnership in a particular case, 142. What circumstances constitute a person a partner so as to bind him by the acts of his co-partner, 237. Dower in partnership estate, 548 Suit by partner against partnership, 596. Member of partnership after dissolution can not act as agent of creditor, 550. PARTNERSHIP-Continued. Liability of partners for acts of each other; party claiming limited liability must show notice to creditors when, 288. PASSAGE OF LAWS. In an action by a bona fide holder of a negotiable municipal bond purchased before maturity, without notice of its invalidity other than that imparted by the legislative journals, it can not be shown by such journals that a law, printed and promulgated as such by the state authorities, and under which the bond on its face purports to have been issued, is null and void, because not enacted in conformity with the requirements of the state constitution, although such evidence would have been admissible against one not a bona fide holder. Bradley, Miller, Davis and Field, JJ., dissenting. South Ottawa v. Perkins, 132; but see note by M. A. Low, Esq., criticising this case, 137 to 140; decision reversed on rehearing, 442. PATENT LAW. Birdsell's patent for clover-huller; Hagerstown double huller-clover machine not an infringement, 211. Jurisdiction of state courts in cases arising under patent right laws; article by Wm. Conner, Jr., 555. PAYMENTS. When giving of a note is deemed a payment of the precedent debt, 215. Payment to administrator irregularly appointed, 382. Acceptance of note by one of several joint-debtors not a satisfaction, when, 288. PEDDLERS. Recent Statute of Missouri concerning, 505. PENAL BONDS. Bond for penalty given under local act of 1855 (Mo.) for property seized on execution not a bond for the payment of money within the meaning of section 5, page 809 Wag. Stat., 478. Amount of penalty in excess of jurisdiction of justice of the peace, case must be dismissed, 478. PERJURY. Authority to issue the oath upon which perjury is assigned; oath administered by de facto officer, authority presumed; aliter in case of persons not public func tionaries, 94. "PERSON." [See INTERPRETATION.] PLEADING AND PRACTICE. [As to pleading in cases of Admiralty and Maritime Law, see that title.] Amendment. Circumstances under which amendment was properly ⚫ allowed, 572. Defects in pleading cured by, when, 573. In suit against officers in their official capacity, where they subsequently go out of office, it is error to permit plaintiff's to change cause of action and to litigate at the costs of such original defendants, 575. Amendments after verdict, 575. Affidavit for attachment, when amendable, 288. When court may permit officer before whom affidavit is made to attach a venue, 288. Correcting name of defendant in case of appeal from justice, 332. Not error to refuse to submit issues of fraud to jury, when, 165. Order of proof a matter of discretion; declaration of conspirator may be admitted against his co-conspirator before proof of such conspiracy is made, provided it is afterwards made. Miller v. Barber, 177. Discretionary to receive evidence after case is closed, 358. Habit of judges in interrupting counsel, 529. Refusal of court under Kansas Code to make separate findings of law and fact, error, 431. Error to order a party out of court-room during examination of a witness, 213. PLEADING AND PRACTICE-Continued. What should be stated in opening a case to the jury. Scripps v. Reilly, 128. Appellate court will review exercise of discretion by inferior court in proper cases, as where counsel are allowed to open a case improperly. Ibid. Continuance. Affidavit for continuance on account of defendant's absence at trial must show what, 167. No error to refuse to postpone trial to procure defendant's attendance as witness, 167. In Kansas, error to force party to trial at first term, 597. Facts stated where refusal of a continuance was held error, 287. Declaration; Petition. In Indiana, where defendant is sued by a name importing that it is a corporation, not necessary to aver that it is such, 168. In declaration for a libel, not necessary, to aver manner and extent of publication, 168. Petition must show some interest of plaintiff in the controversy or legal right to use his name, 189. What allegations are necessary in an action on a sheriff's bond, 238. In suit to enforce mechanic's lien not necessary to aver that the lumber was used for the building, 240. When in an action for malicious prosecution it is not necessary to aver that the accusation was falsely made, 264. When an objection to introduction of evidence on ground of variance will be sustained; when plaintiff will be required to amend before trial; variance between petition and reply, 337. Averment in a complaint against the maker of a defective abstract of title, 382. In action to quiet title delivery of deed to petitioner must be averred, 480. Not necessary to aver the incorporation of a city, 503. Declaration that a mare was "a good mare" not a warranty of soundness, 527. Petition for lien wrongly addressed, 550. Profert of instrument sued on, 572. Necessary averments in petition to rescind contract on ground of fraud, 574. Requisites of petition in replevin in Nebraska, 479. If note is void for any cause recovery may be had on common counts, 406. Claim for recovery can not be joined with action against clerk and master for purchase-money, 408. Defenses. In an action against sheriff for false return and releasing property taken in execution, not sufficient to plead that the property levied on belonged to another person, if a person other than the person named in the execution, if the defense is that the property was exempt; in such case the fact of the exemption must be pleaded, 165. Uncertainty in pleading; defense to promissory note, 479. Allegation of new matter in defense, 569. General denial puts title in issue, 501. Not sufficient in North Carolina to aver tion of the complaint is true," 214. Effect of pleading statute of frauds in Missouri in amended answer; effect of answer as evidence, 95. Necessary to plead attachment bond in order to recoup for damages sustained by attachment in the same action, 240. that no allega In an action by municipal corporation against a steamboat owner, to recover wharfage dues, a defense that the fees are excessive and therefore unconstitutional, as being a duty of tonnage, must be specially pleaded." Keokuk v. Keokuk N. L. Packet Co., 276. Demurrer. Effect of demurrer on the ground that "petition does not state facts sufficient to constitute a cause of action," 47, Effect of stipulation for judgment on demurrer in suit to enforce mechanics' lien, 47. Case where demurrer to a reply which states that a certain contract was executed on Sunday will not raise the question as to the validity of the contract. Johns v. Bailey, 90. Defense of statute of limitation raised by demurrer, 288. Demurrer to Evidence. Circumstances where in an action for damages for inju. ries a demurrer to evidence was sustained, 95. Effect of demurrer to evidence, 143, 549. Error to refuse instruction in the nature of a demurrer to the evidence when, 212, PLEADING AND PRACTICE-Continued. What held failure to prove fraud under demurrer to evidence, 549. Circumstances where the decision of a lower court overruling demurrer to evidence will not be reversed, 549. Facts under which demurrer to evidence should be overruled, 431. Equity. Error to make decree against a minor and feme covert without appearance and appointment of guardian ad litem. O'Hara v. MacConnell, 20. Error to render final decree for want of appearance at first term after service of subpoena unless another rule day has intervened. Ibid. In suit to divest title of feme covert or minor, trustee must be made a party. Ibid. The making of conveyance as ordered by the decree does not cut off right of appeal. Ibid. Nor does a subsequent petition in review nor matter in answer thereto. Ibid. Instruction. In Texas charge must be in writing, and must not comment upon the weight of evidence; a departure from this rule is ground for reversal, but the party complaining must show prejudice. Texas, etc., R. Co. v. Murphy, 55. Judge may instruct in absolute form on admitted facts, but must not take from jury the right of weighing the evidence where the facts are controverted. Mutual Life Ins. Co. v. Snyder. 106. Instructions not specifically excepted to not reviewed on appeal; nor can exceptions be taken for the failure to give an instruction not specifically asked. Ibid. When counsel in opening have been permitted to read documents to jury which have not been admitted as evidence, is error for the court in instructing the jury to withdraw these from their consideration by a general statement; illustration. Scripps v. Reilly, 128. An instruction that the jury should give the plaintiff such compensation as they can, under their oath, say will be a fair one in case of a finding in his favor, is erroneous in not confining their finding of damages to those shown by the evidence, 143. Instructions which are contrary to each other or of the record, constitute ground for reversal, 765. Case will not be reversed for erroneous instruction where the proper result was reached Lundy v. Pierson, 167; Williamsburg City Fire Ins. Co. v. Cary, 167. Error to instruct jury to find upon an issue as to which there is no evidence for or against. Snyder v. Adams Express Co., 179. Not error to refuse instruction where there is no evidence on the point, 189. Or where instructions correct in themselves have been given in another form, 189. When court may tell jury to return verdict for plaintiff, 192. Limits of judicial authority in stating what facts are admitted or proved, 335. Error of court to inquire of jury the difference between them to advise them to agree, 334. Stating facts hypothetically, 360. Court must not instruct as to credibility of witnesses, 527. Not error to instruct that if the evidence of the plaintiff impresses jury as being so unreasonable as to remove a fair presumption of the truth of the statements made by the plaintiff, they should find for the defendant, 311. Jury. Qualification of jurors; tax-payer not disqualified in act ing on jury in a case in which the city is interested, 288. New Trial. When court will not interfere with discretion of court below in refusing, 190. New trial on newly discovered evidence which is cumu. lative, 358, 429. Circumstances under which it was held not error to refuse new trial on ground of surprise, 480. Case where newly discovered evidence was held not sufficiently material to warrant supreme court in awarding new trial, 480. In what cases a new trial is a matter of right in Indiana, 573. Parties. In a suit to set aside administrator's settlement, widow must be made a party; administrator alone a separate party, when, 405. In bill by wards against surety of deceased guardian for account, not necessary to make representatives of guardian parties, 456. PLEADING AND PRACTICE-Continued. Under Tennessee code all parties to joint obligation are liable. Subsequent purchaser or incumbrancer a party in action to enforce mechanic's lien, 480. Facts alleged in which the incumbrancer whose interest was unknown was held to be a proper party; effect of failure to make the party who owned the property at the commencement of the action a party in suit to enforce mechanic's lien. Court may set aside such judgment within a year after its entry, 480. When one of two cestuis que trust is not a necessary party, 501. Assignee pendente lite not a necessary party, when, 528. Husband not a necessary party to a suit to charge wife's estate, 572. County a proper party in an action of ejectment to recover land mortgaged to secure a loan of school funds of township, 286. When co-obligee is not a necessary party, 286. Process. Process received within ten days in Illinois may be returnable to next term or to succeeding term, but if returned to next term cause will be continued, 166. Service of process on non-resident by publication; Uni. ted States Commissioner at Honolulu, a non-resident within the meaning of the Oregon statute, 471. Service one day before return day, 596, Summons issued without seal void in Kansas, 240. Finding of court that due preserval of service had been made upon defendants as required by law, held in supreme court to be prima facie evidence of the authentication of the summons with the seal, 240. Service of process on foreign insurance company which has filed written stipulation agreeing that all legal process affecting it served on the auditor or agent within the state thall have the same effect as if served upon the company; such service not good under the act of Congress of March 3, 1875. Stillwell v. Empire Ins. Co., 463. No replication required in Indiana except to new matter; going to trial without objecting for want of replication waives defect. Walker v. Woollen, 248. Refusing to strike reply from files after 3 years, 311. United States Courts. How far the practice of the federal tribunals is governed by the state procedure; Sec. 915 Rev. Stat. United States construed. Beardsley v. Littell, 270. The provisions of the New York Code as to the exmination of witnesses before trial not applicable to federal courts in that state, 270. Variance. A defendant can not prove at the trial a variance between the pleadings served on him and the record, 177. Venue. Absence of judge a sufficient excuse for not applying for change of, at an earlier date, 144. Duty of jury to answer interrogatories, 548. And although there may have been an adjournment in the meantime, 551. Where a jury render an informal verdict the court may suggest a correct form. Bosse v. Thomas, 485. Granting judgment non obstante veredicto, 309. Miscellaneous Rulings. Answer not evidence in Missouri, 95. Matters of evidence not to be pleaded, 479. Mode of proceeding against administrator for account in North Carolina, 287. Negligence of attorney no ground for setting aside default, 332. Notice to defendant not necessary in attachment by garnishee, 336. Similiter to negative plea under Illinois practice, 167. The grounds on which parties will be ruled to give security for costs stated; not an exercise of sound discretion to make such a rule after interlocutory decree and report of referee, 190. Intervening defendant may not question judgment establishing mechanic's lien, when, 263. What latitude will be allowed to bad pleaders; failure to aver appointment of guardian not fatal, 120. Defendant filing affidavit of meritorious defense as to |