and thus create the conditions upon which cities
of the second class are authorized to make their
subdivisions a part of the city, cannot defeat such
annexation by a claim that the extent of their
homestead is reduced to one acre without their
consent.-City of Emporia v. Smith, (Kan.) 22 P.

616.

either that no assessment had been made, or that,
if made, there had been a failure to enforce the
same, through no fault of his.-Raisch v. City and
County of San Francisco, (Cal.) 22 P. 22.
Defective streets.

is circumscribed by platted territory that is taken
into said city.-Union Pac. Ry. Co. v. City of Kan-
sas City, (Kan.) 22 P. 633.
Land held by city.

8. The city of San Francisco, to settle private
land claims, by ordinance passed in 1855, authorized
the mayor to enter the land at the land-office, and
to hold it in trust for those in actual possession.
It was also provided that part of the land should
be laid out as public squares, and this was done,
one of the squares being called "Hamilton Square.
Act Cal. March 11, 1858, ratified this ordinance, but
no entry was ever made. Act Cong. July 1, 1864,
relinquished to the city the land within its limits
for the uses specified in the ordinance mentioned.
T. had a claim to the land included in Hamilton
square, and compromised with the city by convey-
ing part of the land to it, and receiving in return
a conveyance for another part thereof. These
deeds were made in pursuance of an ordinance, and
were ratified by an act of the legislature. Held,
that the conveyance by the city was void, as it held
the land in trust for the public.-City and County
of San Francisco v. Itsell, (Cal.) 22 P. 74.
Officers and agents.

9. The charter of the city of Denver, art. 2,
8, which provides that "each board [of aldermen]
shall be the sole judge of the qualifications, elec-
tion, and returns of its own members," does not
divest the courts of their correctional power, by
certiorari, to review the regularity of the proceed
ings of such board in ousting a member.-Board
of Aldermen v. Darrow, (Colo.) 22 P. 784.

10. One who has been duly elected, qualified,
and inducted into office as a city alderman, cannot
be summarily removed, by resolution of the board,
upon a charge of disqualification, without notice
and without hearing or investigation of any kind.
-Board of Aldermen v. Darrow, (Colo.) 22 P. 784.

Police department.

*

#

*

16. A municipal corporation is not liable, in the
absence of an express statutory provision impos-
ing a liability, for personal injuries caused by its
negligence in leaving a street out of repair, and
there is no distinction between cases arising under
charters making it the duty of the city, as such, to
keep streets in repair, and those making it the
duty of the city council to do so. Chope v. City of
Eureka, 21 P. 364, followed.-Arnold v. City of
San Jose, (Cal.) 22 P. 877.

Liability of contractor.

17. Where a contractor, in violation of a city
ordinance, leaves a hole unguarded by light or bar-
riers in a public street which he is repairing, he is
responsible to one injured thereby without con-
tributory negligence.-Barton v. McDonald, (Cal.)
22 P. 855.

18. The contractor's liability does not depend
on the authority of his employer to have the
street repaired, or whether the employer would be
responsible for the injury.-Barton v. McDonald,
(Cal.) 22 P. 855.

19. A street is none the less a highway because
the duty of keeping half of it in repair is imposed
on some one other than the public.-Barton v. Mc-
Donald, (Cal.) 22 P. 855.

Public improvements-Assessments.

20. St. Cal. 1871-72, p. 809, § 8, subd. 8, provid-
ing for the assessment of Market street and other
streets in San Francisco, other than at right angles
with crossings, etc., has reference only to work
done on street intersections, and does not affect
the right to assess irregular lots fronting on the
street, for sewer work in the street between the
crossings, under section 3, which authorizes the
board of supervisors to order the whole or any
portion of any public street sewered, and section 8,
subd. 3, which provides for the assessment of
property fronting on the work.-Boyle v. Tibbey,
(Cal.) 22 P 1128.

21. After the time for the completion of a con
tract for grading a street, under St. Cal. 1871-72,
has expired, an attempt to extend the time is futile,
and an assessment founded on such contract is

void.-Dougherty v. Nevada Bank, (Cal.) 22 P. 518.
Liability of city.

22. By the charter of the city of East Portland,
the common council of said city has full power,
among other things, to improve the sidewalks,
pavements, streets, and all parts of streets within
the limits of the city, to make full or partial im-
provements thereof, and to determine and provide
for everything necessary or convenient to the ex-
ercise of the authority therein granted. The cost
of such improvements may be assessed upon the
adjacent property, but it is not commanded to be
done. Held, that the city could not resist liability
for such an improvement made, in good faith, un-
der contract with the city, because of a technical
defect in the notice of the improvement, required
to be given by the charter.-Portland Lumbering
& Manuf'g Co. v. City of East Portland, (Or.) 22 P.

536.

Opening streets.

23. The charter of the city of East Portland re-
quires that, "whenever the common council shall
deem it expedient to lay out, establish, widen, or
extend a street or alley, the council shall direct the
city surveyor to survey such proposed street or
alley, and to mark the boundaries thereof, and to
make his report to the common council, containing
the plat of such survey of such street or alley, and
the portion of each lot, or part thereof, required to
be appropriated for such street or alley." Held, that
a vote of the council whereby the city surveyor was

6. In an action for personal injuries received
through the alleged negligence of defendants in
operating their elevator in a store, evidence of ad-
vice given by a skilled mechanic to one of the de-
fendants as to their careless manner of running
the elevator, and by him communicated to all other
persons in the store, is admissible.-Treadwell v.
Whittier, 22 P. 266, 80 Cal. 574.

NEGOTIABLE INSTRUMENTS.
Demand, see Limitation of Actions, 11, 12.
Negotiability.

1. A promissory note, in the ordinary form,
containing a stipulation that "this note is given
for part payment of rent of certain pasture fields,
and is not to be paid unless I have the use of
said premises, in accordance with a certain lease
and agreement," was not negotiable at common
law. Jennings v. First Nat. Bank, (Colo.) 22 P.

777.

2. Nor is it negotiable under Gen. St. Colo. c. 9,
which provides that (section 3) "all promissory
notes, bonds, due-bills, and other instruments in
writing, made by any person, whereby such per-
son promises or agrees to pay any sum of money
to any other person or persons, shall be
taken to be due and payable to the person or per-
sons to whom the said note, bond, bill, or other in-
strument in writing is made;" and (section 4) that
"any such note, bill, bond, or other instrument in
writing, made payable to any person or persons,
shall be assignable by indorsement thereon, * * *
in the same manner as bills of exchange."-Jen-
nings v. First Nat. Bank, (Colo.) 22 P. 777.
Execution.

were not bona fide holders.-Jones v. Hanna, (Cal.)
22 P. 883.
Notice of dishonor.

9. Where a notice of dishonor of a negotiable
promissory note is sent by mail to the last-known
place of residence of the indorser, and he receives
the same, such notice is sufficient, although, prior
to the sending of such notice, the place of resi-
dence of the indorser had been changed.-Cornett
v. Hafer, (Kan.) 22 P. 1015
Payment.

10. The execution by an indorser of his own
note, which is given and accepted in full payment
of the note on which he is liable as indorser, consti-
tutes a novation under Civil Code Cal. § 1530, pro-
viding that "novation is the substitution of a new
obligation for an existing one," and is made (sec-
tion 1531) "by the substitution of a new obligation
between the same parties with intent to extinguish
the old obligation;" and the maker of the first
note becomes liable to the indorser, though the
holder, instead of canceling it, indorsed it without
recourse to the indorser.-Stanley v. McElrath,
(Cal.) 22 P. 673.

Actions on-Pleading.

11. In an action by the assignee of a promissory
note payable to the order of a banking firm, the an-
swer alleged that when the note was made the firm
occupied the maker's building to carry on its busi-
ness; that the lease was in the name of an individ-
ual member of the firm, under an agreement be-
tween all the parties, including the firm, that the
rent should be credited on the note; that shortly
after this agreement the lessee removed from the
state, and a nominal assignment of the note was
made, without consideration; and that sufficient
rent was due to satisfy the note. Held, that the
answer stated a defense.-Hamill v. First Nat.
Bank, (Colo.) 22 P. 1094.

Evidence.

Signing after delivery.

4. One who signs a note some months after its
date and delivery by the original maker, when
there is no extension of payment, nor promise of
forbearance, is not bound thereby.-Leverone v.
Hildreth, (Cal.) 22 P. 72.

Indorsement.

5. Where a note, after execution and delivery,
is indorsed by the payee, and by a third person, and
is then sold by the payee to another person, before
the maturity of the note, both the indorsers are or-
dinary indorsers, and not guarantors.-Cornett v.
Hafer, (Kan.) 22 P. 1015.

6. In an action against the maker of a note for
the amount paid thereon by the indorser, it is no
defense that the indorser paid it without proper
demand and notice; for, as these are for the ben-
efit of the indorser, he may waive any defects
therein.-Stanley v. McElrath, (Cal.) 22 P. 673.

7. The indorsement of a promissory note for
collection passes such title to the indorsee as will
enable him to sue thereon in his own name, though
he paid nothing for such note.-Roberts v. Parrish,
Or.) 22 P. 136.

Bona fide purchasers.

S. An accommodation indorser of a note, void
under Civil Code Cal. § 1667, providing that "that is
not lawful which is contrary to an express provis-
ion of law or contrary to the express policy of law,'
who had full knowledge of all the facts, is not es-
topped by Civil Code. § 3116, providing that an in-
dorser of & note warrants to every subsequent
holder thereof that it is in all respects what it pur-
ports to be; that the signatures of all prior parties
are binding upon them; and that if it is dishonored
he will pay the same,-from setting up its illegali-
ty against the payees, as they took with notice, and

Harmless error.

13. In a suit by an assignee of a note containing
a stipulation that it is not to be paid unless the
maker has the use of certain premises in accord-
ance with a lease, the introduction by defendant
after his motion for nonsuit had been denied, of
the lease as a foundation for his affirmative defense,
cured the failure of the plaintiff to prove the ex-
ecution of the lease and possession thereunder,
and the error in refusing defendant's motion be-
came harmless. -Jennings v. First Nat. Bank,
(Colo.) 22 P. 777.

NEW TRIAL.

In criminal cases, see Criminal Law, 33, 34; Hom-
icide, 37.

Application.

1. Code Civil Proc. Cal. §§ 656, 659, provide
that "a new trial is a re-examination of an issue of
fact in the same court after a trial and decision by
a jury, or court, or by referees," and that the party
intending to move for a new trial must, within 10
days after the verdict of the jury, or after notice of
the decision of the court or referee, if the action is
tried without a jury, file notice of such intention.
Held that, in a case tried as in equity, and sub-
mitted to the jury on special issues, notice of an
intention to move for a new trial, filed and served
by plaintiff within 10 days after the decision of the
court, was in time, though nearly 9 months after
the verdict of the jury was filed, as the verdict of
the jury in such a case is not a "decision. "-Bell v.
Marsh, (Cal.) 22 P. 170.

O Counter-affidavits.

2. Where it appears, on a motion for a new trial,
that a party has prepared counter-affidavits and
served copies of them within the prescribed time,
but inadvertently omitted to file them, he may file

them after the expiration of the time prescribed.
Spottiswood v. Weir, (Cal.) 22 P. 289.

Hearing of motion.

3. An order denying a motion for a new trial
is not void because made in the absence of one
attorney of record, where another was present, and
the record shows no lack of authority to appeal on
his part.-Romine v. Cralle. (Cal.) 22 P. 296.

Misconduct of jury.

4. It is not such misconduct as will warrant
the granting of a new trial for a juror to state to
several of the other jurors, during the course of
the trial, that if certain precautions had been tak-
en the accident causing the injury sued for could
not have happened, illustrating his meaning with
the model used at the trial, as it was the state-
ment of a self-evident fact, which could not have
improperly influenced the verdict.-Monaghan v.
Pacific Rolling-Mill Co., (Cal.) 22 P. 590.

5. Code Colo. (Gen. St. 1883) § 172, provides
that "after hearing the charge a jury may either
decide in court or retire for deliberation. " Held,
that the mere separation of a jury in a civil case,
after the evidence, charges, and arguments are
concluded, will not per se be sufficient ground for
setting aside the verdict and granting a new trial.
It must appear that there is a strong probability
that the jury have been tampered with or influ-
enced to return the verdict which is sought to be
et aside.-Dozenback v. Raymer, (Colo.) 22 P. 787.
6. One of the principal questions involved in a
case was as to the amount of damage done to a
hedge by fire caused by defendant. One of the
jurors during the deliberations of the jury, and be-
fore they had fully agreed upon their verdict, stated
to the other members of the jury that he had had
about the same amount and kind of hedge burned
by the defendant that the plaintiff had, and that
defendant had paid him a certain amount as dam-
ages therefor, which was greater than the amount
of the plaintiff's damages, as shown by the evi-
dence of the witnesses. The evidence as to the
damage done to the hedge was conflicting, and it
could not be determined what the jury allowed for
the hedge. Held, that defendant was entitled to
a new trial.-Atchison, T. & S. F. R. Co. v. Bayes,
(Kan.) 22 P. 741.*

Mistake as to day of trial.

7. Defendant was ready for trial on the day on
which his case was originally set for trial, but the
day of the trial was changed to a date one day
sooner, and defendant had no notice or knowledge
of the change until the morning of the changed
day. His counsel asked the court to allow them
until noonday to get their client into court, and
counsel on the other side consented to it, but the
court refused, and tried the case. Defendant was
in court, with his witnesses, when court convened
in the afternoon. Held, that defendant was enti-
tled to a new trial.—Leighton v. Dixon, (Kan.) 22
P. 732.

| refused to accept the offer, and the motion was de
nied; the order reciting that the verdict was sus-
tained by a preponderance of evidence, "unless as
to the amount of the verdict." Held that, as the
language of the trial judge clearly showed his be
lief that the verdict was excessive, which belief
was warranted by the evidence, the defendants
were entitled to have the verdict reduced without
the imposition of terms, and that a new trial should
be granted.-Gardner v. Tatum, (Cal.) 22 P. 880.
Newly-discovered evidence.

11. The granting of a new trial on the ground of
newly-discovered evidence is a question within the
discretion of the trial court.-Spottiswood v. Weir,
(Cal.) 22 P. 289.

12. A motion for a new trial for obstructing a

highway was made on affidavits that lost papers
had been found showing that notice of application
for the establishment of the highway had been
given, and that a petition therefor had been filed,
signed by the person under whom plaintiff claimed,
by which dedication could be proven. The affida
the signature was in the handwriting of such per
vits did not show that affiant knew as a fact that
son, nor that the route of the road, if established,
Would have been over his land. The notice offered
was not in compliance with the statute. Held,
that the motion was properly overruled.-Smith
ers v. Fitch, (Cal.) 22 P. 935.

13. In an action to quiet title, where judgment
was given for plaintiff, the facts that the land was
sold for taxes, and that defendant obtained a tax-
deed therefor after the trial and before judgment,
do not constitute newly-discovered evidence war-
ranting a new trial.-Miller v. Luco, (Cal.) 22 P.
195.

In general.

14. The denial of a motion made before trial for

judgment on the pleadings cannot be assigned as
ground for a new trial, as it is not an "error of law
occurring during the progress of the trial.'
Powder River Cattle Co. v. Custer County, (Mont.)
22 P. 333.

15. Where a verdict is rendered in favor of the
plaintiff, and on the same day the defendant files a
motion for a new trial, setting forth as one of the
grounds therefor that the verdict is not sustained
by sufficient evidence, and before anything further
is done the county in which the court is held is
made a new judicial district, a motion for a new
trial presented to a new judge appointed for such
district, with the additional ground that he cannot
intelligently hear and determine the motion, should
be granted.-Bass v. Swingley, (Kan.) 22 P. 714.

16. Under Code Civil Proc. Cal. § 385, providing
that in case of transfer of interest an action may
be continued in the name of the original party, a
conveyance by plaintiff's pendente lite of the land
in suit is no ground for new trial, though not known
to defendants until after the trial.-Miller v. Luco,
(Cal.) 22 P. 195.

Nonsuit.

NOTARY PUBLIC.

Negligence in taking acknowledgment.

Code Civil Proc. Cal. $ 1962, subd. 3, pro
vides that whenever a person has, by his own dec-
laration or act, intentionally and deliberately led
another to believe a particular thing true, and to
act on such belief, he cannot, in any litigation aris-
ing out of such declaration or act, be permitted to
falsify it. Held, that where a person executing &
mortgage has been introduced to a notary by the
mortgagee's agent, and the notary sees the person
with the name given him by the mortgagee's
so introduced execute the mortgage by signing it
agent, who witnesses the signature, the mortgagee
cannot, on discovering that the mortgage was not
executed by the owner of the land, sue the notary's
sureties for his alleged negligence in taking and
certifying to the acknowledgment of the pretended
owner.-Överacre v. Blake, (Cal.) 22 P. 979

Notico.

See Defacing Public Notice.

Novation.

PARENT AND CHILD.

See, also, Adoption; Infancy.

Custody of children.

In a proceeding to enforce the surrender of
two Chinese infant girls, taken under Act Or.

2. Pol. Code Cal. § 2521, provides that the board
of state harbor commissioners shall appoint certain
officers, including a chief wharfinger and such
number of wharfingers and collectors as they deem
necessary, and that such officers shall hold for the
term of four years, but may be removed by the
board at any time, after due investigation, for
causes affecting their official character and com-
petency; and in case of a vacancy in such offices
the board must fill the same by appointment for
four years. Held, that the power delegated to the
board, by the legislature, of creating the office of
collector, necessarily implied the power to abolish
the office, when, in the judgment of the board, it
was no longer necessary, though the term of four
years, for which the incumbent was appointed, had
not expired.-Ford v. Board of State Harbor
Com'rs, (Cal.) 22 P. 278.

Removal of officer.

3. St. Cal. 1880, p. 11, § 4, provides that as soon
as practicable the rates of wharfage must be ad-
justed and classified by such system, and collect-
ed by such officers, as the board of harbor com-
missioners may direct; that the duties of such off-
cers, and their compensation, shall be fixed by the
commissioners, and when such system is put in
force no tolls must be collected by load or vehicle
on any merchandise passing on or off the wharves,
and the system of collection by toll collectors must
cease. Held, that the revision of the Code in 1883,
by which the collectors were declared to be officers,
did not impliedly repeal the statute of 1880, so as to
take from the commissioners the power to remove
collectors, as it left in full force section 2524 of the
Code, giving the commissioners and mayor of San
Francisco authority to modify dockage and wharf-
age rates, and directing that thereafter the collec-
tion of tolls should cease and the collectors be dis-
charged.-Ford v. Board of State Harbor Com'rs,
(Cal.) 22 P. 278.

Opinion Evidence.

See Evidence, 5-7.

Orders.

Appealable orders, see Appeal, 5-14

Ordinance.

See Municipal Corporations,

lent corporations in relation to the care of home-
less or abused children, whose parents were dead,
and who were found at a Chinese house of ill re-
pute, the court, after hearing the matter, adjudged
that they be surrendered to such corporation; and
thereafter a petition was filed by a guardian of the
infants, a Chinaman, who had been appointed by
the county court, and who claimed that the infants
support them. The court decided that the infants
had a grandmother in China able and willing to
be surrendered to the captain of a vessel bound for
Hong Kong, to be taken there, and from thence
sent by alleged Chinese friends to their grand-
mother at Chow Bow, 60 miles distant. The only
evidence that the infants had a grandmother able or
willing to support them, or that they would be sent
to her, was Chinese testimony, and a strong sus
picion existed of a design to sell the children for
immoral purposes. Held that, in view of the facts
and circumstances, the testimony was insufficient
to justify the adjudication, and that it was errone-
ous. In re Woman's North Pacific Presbyterian
Board of Missions, (Or.) 22 P. 1105.

PARTIES.

In partition proceedings, see Partition,
Necessary, see Specific Performance, 8.
On appeal, see Appeal, 25, 26.
Necessary.

1. In an action against a railroad company to
recover a rebate alleged to be due on freight
paid under a special contract with defendant's re-
ceiver, such receiver is not a necessary party de-
fendant where it appears that he was discharged
prior to the commencement of the action, as he
was not personally liable.-Bayles v. Kansas Pac.
Ry. Co., (Colo.) 22 P. 341.

2. Where it appears that a contract for purchase
of realty was made by a husband, who paid part of
the price, and to whom the conveyance was made,
the fact that his wife executed her notes for the bal
ance of the price, and gave a trust-deed on her in-
dividual property to secure them, the notes being
delivered by the husband, does not render the hus-
band a trustee for the wife, or make her an indis-
pensable party to a suit by him to rescind the
contract on the ground of fraud. - Wheeler v.
Dunn, (Colo.) 22 P. 827.
Joinder.

3. Comp. St. Mont. div. 5, § 1296, provides that
all joint obligations shall be taken to be joint and
several; and Code Civil Proc. Mont. § 20, provides
that persons severally liable upon the same obliga-
tion, including parties to notes and bills of exchange,
and sureties 'on the same or separate instru-
ments," may, all or any, be included in the same
action. Held, that the sureties on a separate con-
tract of suretyship may be joined with their prin-
cipal in an action for a breach of the latter's con-
tract.-Wibaux v. Grinnell Live-Stock Co., (Mont.)
22 P. 492.