tendent of the company in charge of the train baggage master, with instructions to keep the guns unloaded and wrapped up in a blanket, except when passing over that portion of the road where an attack was apprehended. Upon reaching a certain station on the road the guns were to be unpacked and charged, ready for use; and after passing the same on the return of the train, the cartridges were to be withdrawn and the guns again wrapped up, and, upon reaching the headquarters of the company, the package was to be delivered to the station baggage-master, to be kept over night, and upon the return of the train he was to replace the package. The plaintiff, a conductor on the train, who had entire command thereof, and knew of the foregoing regulations, was injured by the accidental discharge of one of the guns when the same were being replaced on the train by the station baggage-master. Held, that whether the company was guilty of negligence in not providing gunracks or other suitable means for transporting the guns, was a question for the jury; that the plaintiff, as conductor of the train, was charged with the duty of seeing that the instructions of the superintendent were observed; and that the injury resulted from the negligence of a fellow-servant, for which the company was not liable. Id. 32. CARRIERS OF PASSENGERS-NEGLIGENCE-COLLISION-PARTIES.-When a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it and another vehicle, the party injured may recover from the proprietors of either or of both. Where both are sued, the plaintiff may ordinarily dismiss as to either, and, if it turn out that one was not guilty of negligence, he may, on sufficient evidence, take a verdict against the other. Tompkins v. Claystreet Hill R. R. Co. et al. (Cal.), IV, 537.

33. THE SAME-PROOF OF NEGLIGENCE-INSTRUCTIONS.-A passenger by one carrier, in an action against a different carrier to recover for an injury occasioned by a collision between such carriers, must prove negligence on the part of the defendant. As against such latter carriers there is no presumption of negligence arising from the fact of the injury. The defendant is entitled to an instruction in conformity with this rule; and a general instruction to the effect that the plaintiff must make out his case by a preponderance of evidence is not equivalent thereto. Id. 34. THE SAME-RELEASE OF ONE CARRIER-ESTOPPEL.-Such passenger, if he receives compensation from one carrier, in consideration of which he discharges and releases it from all liability on account of the injury, is estopped from denying the liability of such carrier, and he can not afterward maintain an action against the other carrier for the same injury. Id. 35 STREET RAILROAD-NEGLIGENT KILLING OF CHILD IN STREET.-In an action against a street railroad company for killing a child of very tender years, as it was attempting to cross the street, the verdict must be for the defendant, unless the evidence establishes that the death of the child was caused by want of ordinary care on the part of the agent of the company in the management of the car, and that the person having care of the child took all proper precaution for its safety. Roller v. Sutter-street R. R. Co. (Cal.), IV, 691.

See ADMIRALTY, 6; ATTORNEYS, 5; BANKS AND BANKING, 1; COMMON CARRIERS, 6–8; CONTRACTS, 13; CORPORATIONS, 54, 55; MARRIED WOMEN, 7; MASTER AND SERVANT, 3-5; PLEADING AND PRACTICE, 7; TELEGRAPH COMPANIES.

NEGOTIABLE INSTRUMENTS.

1. PARTY TO A BILL OF EXCHANGE.-In a suit upon the following bill of exchange, duly protested for non-acceptance: "$10,000. Santa Fé, N. M., Nov. 25, 1876. Three days after sight, pay to the order of J. M. Luna & Bro. ten thousand dollars, and charge the same to the account of (signed) Max Lichtenthal, Ag't. To Messrs. Mohr & Mohr, Cincinnati, Ohio"-held, that the action can not be maintained on this bill against the defendant Paul Mohr, as a drawer thereof, by means of parol evidence tending to show that in drawing said bill Max Lichtenthal acted as agent for the firm of Mohr & Mohr, the drawees thereof, that the bill was thus in reality drawn by said firm as drawers upon themselves, and that defendant was a member of said firm. Luna v. Mohr (N. M.), I, 673.

2. PARTIES TO NEGOTIABLE INSTRUMENTS.-In general, a person can not be held liable as a party to a negotiable instrument where his name does not in any way appear on the instrument as such party. Id.

3. LIABILITY FOR THE ORIGINAL CONSIDERATION.-A person not liable on a negotiable instrument, because he is not a party thereto, may still be held liable in a suit

brought, or upon a separate count, upon the original consideration for which the note or bill was given. Id.

4. EVIDENCE OF PAYMENT OF A PROMISSORY NOTE IN A MANNER AGREed upon by the maker and payee at the time of the exccution thereof, is admissible in an action thereon by a transferee, under a plea of payment. Such agreement as to the manner of payment is not void for want of consideration. Jones v. Snow (Cal.), I, 465.

5. TERMS OF A PROMISSORY NOTE PROVIDING FOR THE PAYMENT OF EXCHANGE, where the instrument is made payable at a particular bank in a designated city, may be rejected as surplusage, and do not render the note non-negotiable by reason of the amount due thereon being uncertain. Orr v. Hopkins (N. M.), I, 157.

6. NEGOTIABLE PROMISSORY NOTE IMPLIES A CONSIDERATION for the promise therein contained. Id.

7. DECLARATION ON A PROMISSORY NOTE, WHICH DESCRIBES SUCH INSTRUMENT as payable generally or absolutely, can not be supported by evidence of a note in which the place of payment is specifically designated. Id.

8. PROMISSORY NOTE-FAILURE OF CONSIDERATION.-A promissory note given in part for a definite sum, which was represented to have been allowed the payee by the probate court for his services as guardian of the maker, is wanting in consideration to the extent of such sum if the probate court never made such allowance. Estu dillo v. Aguirre (Cal.), IV, 694.

9. INADEQUACY OF CONSIDERATION IS NO DEFENSE TO AN ACTION ON A PROMISSORY NOTE, unless there was fraud also on the part of the promisee. Caldwell v. Ruddy (Idaho), I, 295.

10. A HOLDER OF A NOTE IS NOT EXCUSED FROM PRESENTING IT FOR PAYMENT SO as to charge the indorsers, by the fact that the maker of the note, before its maturity, notified the president of the bank in which it was left for collection that he would not be able to pay it at maturity. Appelgarth v. Abbott (Cal.), I, 469. 11. MERE AUTHORITY TO EXECUTE A PROMISSORY NOTE DOES NOT INCLUDE authority to pay the same when it becomes due. Luning v. Wise (Cal.), I, 138, 257.

12. PRESENTMENT OF A PROMISSORY NOTE FOR PAYMENT TO A JOINT MAKER THEREOF IS EXCUSED, if at the time of the execution and maturity of the note such maker resided in a state other than that in which payment should be made. Id.

13. INDORSEMENT OF A PROMISSORY NOTE IS PRESUMED TO HAVE BEEN MADE for a valuable consideration, and before maturity, in the absence of evidence to the contrary. Id.

14. NEGOTIABLE PROMISSORY NOTE, WHAT IS.-The following instrument: "$284. Denver, Colorado, January 12, 1882. On or before March 12, 1882, I promise to pay to the order of J. O. Allen, two hundred and eighty-four dollars, at the City National Bank, with interest ten per cent per annum, value received. This note becomes due and payable when (if before March 12, 1882) Allen, Burke & Co. shall dispose of a part or all of their interest in the New York Hotel, or when the interest of M. C. Burke may be sold or disposed of. [Signed] M..C. Burke, [and indorsed] William Kiskadden "-is a negotiable promissory note. It is payable at a day certain, and not upon any contingency. Kiskadden v. Allen (Col.), II. 320. 15. INDORSEMENT BEFORE DELIVERY TO GIVE THE MAKER CREDIT.-When a promissory note, made payable to a particular person or order is first indorsed by a third person, such third person is held to be an original promisor, or a guarantor, or an indorser, according to the nature of the transaction, and the understanding of the parties at the time the transaction took place. Id.

16. THE SAME.-If the indorser put his name on the back of such a note at the time it was made, before its delivery to the payee, or as surety to the maker, and for his accommodation, to give him credit with the payee, or if he participated in the consideration for which the note was given, he must be considered as a joint maker of the note. Id.

17. PARTNERSHIP IN NOTE-EVIDENCE OF.-A negotiable note payable to two or more persons jointly is not evidence that it is owned in partnership; nor is the fact that such note is in the actual manual possession of one of the payees such evidence. The evidence reviewed and held not to establish a partnership in the notes in question. Haydon v. Nicoletti (Nev.), II, 632.

18. ASSIGNEE OF JOINT PROMISSORY NOTE-INDORSEMENT BY ONE PAYEE.-The assignee before maturity of a negotiable promissory note, payable to the joint order of two persons not partners, indorsed by one only of the two joint payees, takes the same subject to all the equities existing in favor of the maker, the same as though

it had not been indorsed by either. Such note can not be transferred except by the joint indorsement of all the payees. Id.

19. STIPULATION FOR ATTORNEY'S FEES IN NOTE-PUBLIC POLICY-USURY.-A stipu lation in a promissory note, whereby the maker agrees to pay such additional sum as the court may adjudge reasonable as attorney's fees, in the event of an action being instituted to collect such note, is not void per se, as being contrary to the policy of the usury laws, although such note bears the highest rate of interest permitted by the law. Peyser v. Cole (Or.), III, 560.

20. PROMISSORY NOTE-DEFAULT IN PAYMENT OF INTEREST-ELECTION.-A provision in a promissory note to the effect that, on default in the payment of interest as it became due, the principal sum shall become due and payable, upon the option of the payee, and shall thereafter bear interest at a higher rate, can not be taken advantage of until the payee has in some manner manifested his election. Until such election has been made, the principal sum bears interest at the original rate. After the maturity of the note, the provision in regard to an election has no effect. Dean v. Applegarth (Cal.), III, 305.

21. INTEREST ON INTEREST IN DEFAULT.-A promissory note can not provide that the interest on the interest in default shall be at a greater rate than that borne by the principal debt. Id.

22. PROMISSORY NOTE-INTEREST UPON INTEREST.-A promissory note, given for the payment of interest upon interest which had previously become due, is valid. Hathaway v. Meads et al. (Or.), III, 554.

23. ASSIGNMENT OF PROMISSORY NOTE-PAYMENT-NOTICE.-A promissory note in the hands of an assignee, by an assignment after maturity, is discharged by a payment made to the payee, before notice of the assignment has been given to the maker. Bank of Stockton v. Jones (Cal.), III, 432.

24. PROMISSORY NOTE-RECEIPT-PAROL EVIDENCE.-In an action on a promissory note, a receipt given contemporaneously therewith is admissible, where there is evidence that both papers were parts of one transaction; and parol testimony may be given to show that such receipt was the only consideration for the note. Talmadge v. Stretch (Cal.), III, 52.

25. NOTE FROM ONE PARTNER TO ANOTHER-CONSIDERATION.-A promissory note given to secure the plaintiff for money advanced by him for the defendant on account of the latter's share of the capital, which he was to contribute and invest in their business, is supported by a sufficient consideration, and the plaintiff may recover thereon, although at the time of giving the note the plaintiff and defendant were partners. Id.

See ACCOUNT STATED, 2; CONSIDERATION, 4; CORPORATIONS, 21, 24, 25, 31; COSTS, 7; COUNTER-CLAIM, 5; DECEIT; EVIDENCE, 7-11; FRAUD, 11; GUARDIAN AND WARD, 3; INSOLVENCY, 13; MARRIED WOMEN, 5, 6; MORTGAGE, 12; PLEADING AND PRACTICE, 12, 17, 18, 24; PLEDGE, 1; SURETIES, 1, 6; TIME-CHECK; WAREHOUSEMAN; WARRANTS, 1, 2.

NEW CITY HALL COMMISSIONERS.

See SAN FRANCISCO, 4.

NEW TRIAL.

1. MOTION FOR NEW TRIAL, JURISDICTION OF COURT OVER. -The jurisdiction of a court to hear and determine a motion for a new trial lies dormant until it is called into exercise by the final submission of the motion, in a legal manner, upon a bill of exceptions, statement of the case, or other papers designated in the notice of motion. And it may be called into exercise by the submission of the motion itself, or by a motion to deny or dismiss the motion for want of prosecution, upon the ground that the party moving for the new trial has failed or neglected to serve or file within legal time the statement or other paper upon which he proposed to move; and when thus called into exercise, and the court, in the exercise of its jurisdiction, haz heard and decided the motion, its order is final and conclusive; and it is not erroneous to dis-miss or deny a motion afterward made to set it aside. Such order is reviewable only on appeal. But it is otherwise if such order has been inadvertently or prematurely made. Odd Fellows' Savings Bank v. Deuprey (Cal.), IV, 533.

2. NEW TRIAL-GROUND FOR AFFECTING ONE PARTY ONLY.-An objection, good as a ground for a new trial on the part of one party only, if not raised by him, can not be relied on by another party. Beach v. Hodgdon (Cal.), IV, 610.

3. AFFIDAVIT FOR A NEW TRIAL ON THE GROUND-OF SURPRISE SHOUld be Made BY THE ATTORNEY of the beaten party, and not by his client. Such affidavit must show that the facts constituting the surprise had a material bearing upon the case, and that the verdict was mainly attributable to them. Martin v. Hill (Utah), I, 629. 4. SURPRISE-NEW TRIAL.-Where depositions had been taken for the purpose of being used on a trial, and the successful party conducts the trial without using them, but resorts to other testimony, such as the oral testimony of witnesses, this does not constitute a legal suprise upon the unsuccessful party entitling him to a new trial. Heath v. Scott (Cal.), III, 644.

5. NEW TRIAL MISTAKE AND SURPRISE-ABSENCE OF ATTORNEY.-A new trial will not be granted for the reason that the attorney for the beaten party was prevented by mistake and surprise from attending the trial of the case, when it appears that such attorney, in the exercise of ordinary prudence, could have been present, and that his non-attendance was not due to any fault or omission of duty on the part of his adversary. Cox v. O'Neil (Cal)., III, 445; Cox v. Ireland (Cal.), III, 446. 6. ALLEGED NEWLY DISCOVERED EVIDENCE IS NO GROUND FOR A NEW TRIAL, if the moving party knew of the same before trial. Id.

7. NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.-An order refusing a new trial on the ground of newly discovered evidence will not be reversed if the newly discovered evidence is merely cumulative, and every material fact stated in the moving party's affidavits is contradicted by counter-affidavits. Kelleher v. Kenney et al. (Cal.), IV, 432.

8. NEWLY DISCOVERED EVIDENCE OF FACT KNOWN AT TRIAL EVIDENCE FOR IMPEACHING WITNESS.-Newly discovered evidence of a fact, known at the trial, as to a matter about which one of the witnesses testified, is no ground for a new trial when no diligence is shown for not using the fact as evidence, or when such evidence would tend to impeach a witness. People v. Lyle (Cal.), IV, 349.

9. AFFIDAVITS FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE must show that due diligence was used by the defeated party to procure such evidence for the trial; and the acts performed by such party must be particularly stated, so that the court may determine whether they constitute due diligence or not. The same amount of diligence is required of the defeated party, whether he be the real or only a nominal party to the action. Pinschower v. Hanks (Nev.), I, 369. 10. DEFENSE OR QUESTION NOT MADE TO JURY.-Where a party has a defense to an action arising out of the testimony in the case, and omits to present it to the jury, but relies upon a defense involving a different, if not inconsistent, conclusion from the testimony, a new trial will not be granted to enable him to submit the case to another jury upon this untried question, unless it clearly appears from the evidence that he is entitled to a verdict on that ground, and then only upon the payment of the costs of the first trial. McCune v. Northern Pacific Railway Company (U. S. Cir. Ct., Or.), I, 461.

11. NEW TRIAL GRANTED on the ground of newly discovered evidence. People v. Carty (Cal.), II, 591.

12. MOTION FOR NEW TRIAL, WHEN MUST BE MADE.-The provisions of the compiled laws of Wyoming, sections 308 and 309, regulating the time within which motions for new trials may be filed, are inandatory, and the lower court can not extend such time upon the oral ex parte application of the party desiring to move. Unless such motion is made within the required time, an appeal therefrom will not be consi lered by the appellate court. Kent v. Upton (Wy.), I, 700. 13. A PARTY INTENDING TO MOVE FOR A NEW TRIAL HAS TEN DAYS ALLOWED HIM BY STATUTE, AFTER THE SERVICE ON HIM of the notice of the filing of the findings and the entry of judgment, to give notice of such intention and serve his bill of exceptions; and an order of the court, made before such ten days have elapsed, extending the time within which such notice and service may be made for thirty days, will be construed as extending such time from the end of the period of ten days allowed him by statute. Emeric v. Alvarado (Cal.), I, 708.

14. NOTICE OF MOTION FOR A NEW TRIAL IN AN ACTION TRIED BY A REFEREE, and subsequent proceedings instituted thereon, are ineffectual for any purpose if made before the date of filing the decision and judgment of the referee. Harris v. Careaga (Cal.), I, 467.

15. WHERE THERE IS NOTHING IN THE TRANSCRIPT TO SHOW THAT ANY OBJECTION WAS MADE in the lower court to the hearing of a motion for new trial on the ground that the motion was made too late, the appellate court will presume that the time was extended by consent of the parties. Patrick v. Morse (Cal.), I, 477.

16. STATEMENT ON MOTION FOR NEW TRIAL-TRANSCRIPT-WHAT MUST SHOW. — Papers purporting to be a statement on a motion for a new trial will not be considered by the appellate court when the transcript fails to show that either a motion for a new trial was filed in the lower court, or that a notice thereof was served upon the adverse party, as required by section 287 of the code of civil procedure. First National Bank of Helena v. McAndrews (Mont.), IV, 478.

17. PRACTICE-FILING STATEMENT FOR A NEW TRIAL-EXTENDING TIME.-When a party, having filed and served a notice of motion for a new trial, suffers more than five days thereafter to elapse without filing a "statement," and without taking any steps to enlarge the time for its filing, he thereby waives the right to move for a new trial, and no power exists in the district court to reinstate this right. An order made by the district court under such circumstances after the expiration of five days, granting the party ten days' additional time to prepare and file his statement on motion for new trial, is nugatory. Elder v. Frevert et al. (Nev.), II,

414.

18. DECISION-FINDINGS-NOTICE OF MOTION FOR A NEW TRIAL.-Under the provision of the practice act requiring the party moving for a new trial to give notice of his intention "within ten days after receiving written notice of the rendering of the decision of the judge," where the action has been tried by the court, the "decision" referred to is the announcement by the court of its judgment, and is separate and distinct from the "findings," which may be made and filed by the court either before or after its decision. The time within which notice of intention to move for a new trial must be given begins to run from the service of notice of the announcement by the court of its judgment, and not from notice of its "findings."

Id.

19. STATEMENT ON NEW TRIAL AND ON APPEAL.--A "statement" not filed in time for a motion for a new trial may be treated as a sufficient "statement on appeal,” if filed within the time required for such statements. Id.

20. NEW TRIAL-JUDGMENT DECISION.-A motion for a new trial can not be based on the ground of the insufficiency of the evidence to justify the judgment, or that the judgment is against law. Such motion should be directed at the decision, which consists of the findings of facts and conclusions of law. Sawyer et al. v. Sargent (Cal.), II, 900.

21. STATEMENT ON NEW TRIAL-CERTIFICATION OF.-A statement on motion for a new trial will not be considered by the appellate court when it is neither signed nor certified by the judge of the lower court. Id.

22. MOTION FOR NEW TRIAL, WHEN MUST BE MADE.-Court has no power to extend the time for making a motion for a new trial upon the oral ex parte application of the party desiring to move. Such extension can only be made upon written grounds showing how the moving party has been unavoidably detained. The provisions of the compiled laws governing this subject, sections 308 and 309, are mandatory, and unless they are observed the appellate court acquires no jurisdiction. MeLaughin v. Upton, Assignee, etc. (Wy.), II, 57.

23. AN OBJECTION TO A MOTION FOR A NEW TRIAL ON THE GROUND that the same was not made in time is not waived by arguing such motion. Id.

24. NEW TRIAL-CONFLICT OF EVIDENCE.-An order granting a defendant a new trial after a verdict convicting him of embezzlement will not be reversed, when the evidence is conflicting. People etc. v. Burt (Cal.), II, 721.

25. WHEN THE EVIDENCE IS CONFLICTING, an order denying a motion for a new trial will not be disturbed on the ground that the same is insufficient to justify the verdict. People v. Forsythe (Cal.), II, 288.

26. WHERE THERE IS A SUBSTANTIAL CONFLICT OF EVIDENCE on a material issue, the appellate court will not reverse an order of the lower court granting a new trial. Davis v. Utah Southern Railroad Co. (Utah), II, 453.

27. NEW TRIAL-ORDER GRANTING WILL NOT BE PRESUMED ERRONEOUS.-The appellate court will not presume error nor an abuse of discretion in the action of the lower court in granting a new trial. Johnston, Executor, v. Hancock et al. (Cal.), VI, 418.

28. CONFLICT OF EVIDENCE-VERDICT-NEW TRIAL.-A verdict rendered upon substantially conflicting evidence can not be disturbed and a new trial granted, except for errors of law occurring at the trial. Winans v. Sierra Lumber Co. (Cal.), IV, 29. ERRORS ALLEGED TO HAVE OCCURRED ON THE TRIAL WILL NOT BE CONSIDERED by the appellate court when the statement used on the motion for a new trial was

277.