7. Such claimant has the right to intervene in the partnership action for the purpose of asserting his lien.-Id. Firm and private creditors. 6; Counties, 3; Equity, 1; Insurance, 16-20; Demurrer, see Receivers, 1; Taxation, 9. Multifariousness, see Waters and Water- Pleading and proof, variance, see Carriers, Reply, see Quieting Title, 4. 1. If a complaint states no cause of ac8. A partner, who admits that he has in tion, it cannot be sustained by a supplehis hands money which he has drawn out mental pleading setting up matters that of the firm, cannot hold it subject to pos- have occurred after the commencement of sible claims of creditors of the firm as the suit. The office of a supplemental comagainst his own creditors, but may be re-plaint is merely to enlarge or change the quired to deliver it to a receiver in a proceeding by creditors' bill, against whom partnership creditors may proceed.-Hamilton v. Harris, (Mich.) 56. By check. PAYMENT. 1. Payment by check is not absolute, but conditional, unless expressly so agreed, and where a check is returned by the creditor, and used by the debtor, the debt remains. -Good v. Singleton, (Minn.) 359.* Voluntary payment. relief to which a party may be entitled upon a cause of action existing at the time of the commencement of the suit.-Meyer v. Berlandi, (Minn.) 513. 2. Under Code Neb. § 93, providing that pleadings, containing a large number of causes of action, shall be separately stated and numbered, where several causes are set forth in a petition without being separately stated and numbered, it is error for the court to overrule a motion of the defendant to require the plaintiff to state and number separately his causes of action.Schuyler Nat. Bank v. Bollong, (Neb.) 411, 413. Demurrer. 2. Where a party, under ignorance of the rule of law that distances must yield to natural boundaries called for in a deed, pays money for a quitclaim of property which, under this rule, already belongs to him, he cannot recover it, where the transaction is free from fraud or confidence, and both parties know all the facts.-Erkens v. Nic-lous demurrer to be stricken out, and judgolin, (Minn.) 567.* Physicians and Surgeons. See Malpractice. PLEADING. 3. A motion for judgment on the pleadings, because of a frivolous demurrer, is in effect a motion to strike out the demurrer; Rev. St. Wis. § 2681, as amended by Laws 1879, c. 194. § 2, subd. 20, allowing a frivo ment ordered against the adverse party.Guth v. Lubach, (Wis.) 681. 4. The statute providing, also, that the court in its discretion may allow the party demurring to plead over on such terms as may be just, an order allowing him to plead over on payment of costs is proper, though costs are not asked for in the notice of mo See, also, Account Stated; Deceit, 3, 4; Di- tion.-Id. Allegations of fraud, see Fraud, 1. Answer, see Corporations, 2; Intoxicating 5. A complaint charged that the two defendants, as partners, had received certain money. The separate answer of one of the defendants contained a general denial. It also contained, in connection with allegations of certain transactions between him individually and the plaintiff, a specific denial that "he" had received such money. Held, that the latter denial did not modify Declaration or petition, see Animals; At- the effect of the general denial.-Brandt tachment, 2; Contracts, 11; Corporations, | v. Shepard, (Minn.) 521. Certainty, see Mechanics' Liens, 7. 6. An admission, in an answer, of a cause of action in favor of the plaintiff, wholly different from that alleged in the complaint, does not entitle the plaintiff to a recovery under such complaint.-Id. Motion to make more definite. 7. The remedy for a complaint in an action for personal injuries, which does not sufficiently show the nature or amount of the damages resulting from the injury, is not by motion to make more definite and certain, but by motion for a bill of particulars.-Barney v. City of Hartford, (Wis.) 581. Verification. Execution. POWERS. fining a power as an authority to do some 1. Under Rev. St. Wis. §§ 2102, 2137, de act relating to lands, and requiring a power to be executed by all the joint donees, an authority given to three executors to sell land must be executed by all; section 4971, subd. 3, providing that, in construing laws, words purporting to give a joint authority to three or more public officers or persons confer the power on a majority, unless otherwise provided, does not apply to such a case.-Crowley v. Hicks, (Wis.) 151. 8. A notary public, who is an attorney's Testamentary. clerk, may administer an oath to verify a pleading prepared by the attorney.-Schuyler Nat. Bank v. Bollong, (Neb.) 411, 413. Amendment. 9. On the trial of an action for the price of a wagon, the court properly exercised its discretion in refusing to allow the answer, which set up a counter-claim for a breach of warranty of the wagon, to be amended so as to apply to a wagon sold before the one in suit.-Iverson v. Duboy, (Minn.) 159. 10. Although no reply is filed to an amended answer, yet where, at an earlier stage of the trial, the court has ruled that a certain fact must exist in order to sustain the same defense which the amendment sets up, and in which that fact is not alleged, such defense is out of the case, and the court does not err in omitting to refer to it in charging the jury.-New Haven Lumber Co. v. Raymond, (Iowa,) 820. POOR AND POOR-LAWS. Settlement. 1. Where a man has his only home and place of business in a certain town for the time required by Rev. St. Wis. § 1500, relating to the support of the poor, he gains a residence there, though he contemplate leaving at a future time.-Monroe County v. Jackson County, (Wis.) 224. 2. Under Rev. St. Wis. § 1500, relating to the support of paupers, which provides (subd. 1) that "a married woman shall always follow and have the settlement of her husband, if he have any within the state," his settlement is hers, for the purposes of the statute, though she has been abandoned, or voluntarily lives apart from her husband.-Id. 3. The support of a mother by her daughter is not supporting a poor person as a pauper, within the meaning of Rev. St. Wis. 1500, subd. 4, providing that no person shall gain a residence in a town by being supported therein as a pauper.-Id. 2. Testator gave his son, a minor, $3,000 when he should attain the age of 21, and $1,000 annually thereafter, until he were 25 years old, when he was to have $10,000 more, if, in the opinion of the executors named, he had used the amounts received in a judicious. frugal manner; and at the age of 35 years, or sooner, if the executors thought best, and on the same conditions, he was to receive the possession of the balance of the estate, not otherwise disposed of under the will; but if at 25, and after the receipt of the $10,000, the son had wasted what he then had received, and if in the opinion of the executors he would continue to do so, he then was to receive but the $1,000 annually, and the estate, subject to the other provisions of the will, was to go to the legal issue of the son, and, if he died without issue, to testator's legal heirs. Held, that the executors did not take the estate in trust, but were only executors, with certain additional powers, under which, in certain contingencies, the estate might be made to pass from the son to others after the son had arrived at the age of 35 years.-Perrin v. Lepper, (Mich.) 859. 3. Five persons were named as executors, but one of whom qualified. He was a surviving partner of testator, and acted for 15 years as executor, and died without having rendered any account of his trust, and without paying the son anything after he was 24 years of age, who married and died without issue, leaving all his estate to his wife. The sole executor never passed on the son's habits or conduct, and never undertook to exercise the power given to all the executors in that regard. Held, assuming the power to be valid, it could not be executed by the sole executor, and after the death of the son could not be executed by any one; that on the death of the father the title to the real estate vested in the son, and the son became the owner of all testator's personalty, subject to the debts of the estate and the special legacies, and the whole under the son's will, on his death, passed to his widow, and the heirs of the | father had no interest in the estate whatever, since it was not necessary for the son to reduce the estate willed to him to his possession before he could dispose of it, by will, to his wife.-Id. Service of papers. 5. In the computation of time upon service of notice of trial in the district court, under Gen. St. Minn. 1878, c. 66, § 218, requiring it to be served "at least eight days before the term," the day of service is ex4. A direction to convert land into money cluded, and the first day of the term includis not such an equitable conversion of real-ed.-State v. Weld, (Minn.) 561. ty into personalty as to authorize two exec Production of papers. utors to sell without the concurrence of the third, and equity will not enforce a contract of sale made by two only -Crowley v. Hicks, (Wis.) 151. PRACTICE IN CIVIL CASES. 1. An objection to an action against a town that a statement of the claim has not been filed to be laid before the board of 6. A demand on a trial for the production of all the letters which passed between the parties, or their agents, between certain dates, relating to the matter on trial, is too indefinite to authorize the admission of copies in evidence.-Julius King Optical Co. v. Treat, (Mich.) 912.* Plead-viding that an application for a rule requir 7. Under Code Iowa, SS 3685-3687, proing the production of papers in possession of the adverse party must be by petition stating the facts intended to be shown by control of such party, a party is not enti the papers, and that they are under the tled to the rule on his oral motion, but Section 3672, providing that a witness may must follow the prescribed procedure. be required by subpoena to produce books or writings in his possession, and section 3675, making disobedience of the subpoena contempt of court, apply to witnesses only, and not to parties.-Beebe v. Equitable Mut. L. & E. Ass'n, (Iowa,) 122. audit as required by Rev. St. Wis. § 824, is matter in abatement only, and a judgment dismissing the complaint on the merits is erroneous. Schriber v. Town of Richmond, (Wis.) 644. 2. In the district court, where a motion is filed to dismiss an action for want of prosecution, the moving party must serve notice of such motion upon the adverse party, otherwise the appellant may, within a reasonable time, have the cause reinstated.-Berggren v. Berggren, (Neb.) 284. Stipulations. 3. Gen. St. Minn. 1878, c. 66, § 262, enumerates the modes of dismissing actions, among which is an agreement of the parties. Section 263 provides that, in every case other than those mentioned in section 262, judgment shall be entered on the merits. Held, that a written stipulation, before trial, that an action be dismissed, without costs, did not authorize the entry of a judgment as on the merits, so as to bar a subsequent action for the same cause.-Rolph v. Burlington, C. R. & N. Ry. Co., (Minn.) 267; Rolfe v. Same, (Minn.) 268. Filing pleadings. Presumption. From possession of baggage check, see Of execution of assignment, see Bank- proof of service, see Writs, 4. validity of note, see Negotiable Instruments, 2. On appeal, see Appeal, 21, 22. PRINCIPAL AND AGENT. contract of purchase, does not show a recognition of his authority to make the purchase.-Beebe v. Equitable Mut. L. & E. Ass'n, (Iowa,) 122. 1. That the company advanced money to 4. In an action against a railway comthe agent to pay the debt, without knowlpany for injury to property, after the is-edge that he had assumed to bind it by the sues had been made up and the case ready for trial, it was discovered that the files were mislaid. The court permitted the filing of a substituted petition instanter, and required the railway company to answer, and go to trial at once. Held that, as the substituted petition presented a number of new issues, a reasonable time should have been given the defendant to answer and prepare for trial.-Fremont, E. & M. V. R. Co. v. Marley, (Neb.) 948. Liability of agent. 2. One who procures a real-estate broker to obtain a loan on land, without disclosing the name of the owner of the land, for whom the loan is in fact intended, is himself liable for the value of the broker's services.-Bacon v. Rupert, (Minn.) 832. Liability of principal to third per sons. PROSTITUTION. Indictment. 3. A company which employs an agent to sell machinery, stipulating that the Under Code Iowa, § 4016, making it innotes given in payment shall be taken in dictable to entice a virtuous female to a the name of the company, and guarantied house of ill fame, or to conceal or assist to by the agent, is chargeable, in an action conceal a female so enticed, the enticeagainst the maker, with the agent's knowl- ment and concealment are separate ofedge in taking a note to it, though not giv-fenses, and judgment cannot be rendered en in payment of a machine.-Johnston on a general verdict of guilty on an indictHarvester Co. v. Miller, (Mich.) 429.* ment containing counts charging each of4. That an agent, who has made a pur-fense and a count charging both.-State v. chase without authority, advertised his Terrill, (Iowa,) 128. agency as a branch office, does not estop the company from denying its liability on the purchase, when it does not appear that it knew before the contract was made that the agent was holding himself out as hav ing authority to make it.-Beebe v. Equitable Mut. L. & E. Ass'n, (Iowa,) 122. PRINCIPAL AND SURETY. Liability of sureties on delivery bond, see Attachment, 5. Obligation of surety. 1. In an action on a bond, A., B., and C., having signed in the order named, as sureties, there was evidence that the signatures of A. and B. were forgeries. C. testified that his signature was genuine, and stated, on cross-examination, that, when he signed, the other signatures were on the bond; that he signed in the office of the bond; that he signed in the office of the obligee's attorney, who handed him the pen with which he signed. The court charged that if C. signed after A. and B., believing their signatures were genuine, but if they were really forged, and if the attorney was acting as the obligee's agent, and saw C. sign, and handed him the pen with which he signed, then C. was not bound. Held, that the instruction was prejudicial to plaintiff, and misleading. Lombard v. Mayberry, (Neb.) 271. Construction of bond. 2. A bond recited that the principal had requested the obligee to purchase of him notes and securities, and that the principal and sureties did thereby guaranty that every note and security received through the principal should be paid at maturity. "This undertaking, however, is limited, in amount of loss or default to be chargeable to the sureties, to the sum of $5,000. Held, that the sureties were liable for the aggregate amount or face value of all the notes and securities negotiated according to and during the time limited by the bond, and not exceeding $5,000, with interest. -Id. Promissory Notes. See Negotiable Instruments. Publication. Of notice of assignment, see Assignment for PUBLIC LANDS. Homestead entry. 1. Under Rev. St. U. S. § 2291, providing for the issue of a patent for a homestead to the person making the entry, "or, if he be dead, his widow; or, in case of her death, his heirs or devisee;" and section 2292, providing that, "in case of the death of both father and mother, leaving an infant child or children under twenty-one years of age, the right and fee shall inure" to their benefit,-children and heirs of full age at the time of the death of the applicant, before the issue of the patent, acquire no interest as against the minor children.-Bernier v. Bernier, (Mich.) 50. Reservations and donations. 2. The title of the Des Moines Valley R. Co. to the lands inuring to it under act Cong. approved July 12,1862, accrued January 1, 1871, when it had performed the conditions imposed by the Iowa act of 1868, (Laws 12th Gen. Assem. c. 57.) Following Whitehead v. Plummer, (Iowa.) 40 N. W. Rep. 709.-Cole v. Des Moines Val. R. Co., (Iowa,) 711. 3. The fact that the governor of Iowa did not until September 30, 1881, convey to the Des Moines Valley R. Co. the lands inuring to it under act Cong. approved July 12, 1862, did not prevent it from suing on the title it acquired January 1, 1871, by performance of the conditions of act Iowa March 31, 1868, under Code. § 3246, allowinterest in real property, and a right to the ing "any person having a valid subsisting immediate possession thereof," to recover it by action, and section 3273, providing that an action to quiet title may be brought by "any one having or claiming an interest therein, whether in or out of possession;" and limitation began to run against it, in favor of a homesteader on such lands, January 1, 1871.-Id. 4. Act Cong. approved July 12, 1862, ex- | claiming an interest adverse to that of tending the grant of lands to the state of plaintiff, and to the deed under which he Iowa, for the improvement of the Des claims, are properly joined as defendants Moines river north of the Raccoon forks, in an action to quiet and to declare his title to the northern boundary of the state, was under said deed valid.-Leinenkugel v. a grant in præsenti, and did not merely take Kehl, (Wis.) 683. effect when the secretary of the interior Pleading. certified the lands inuring under the grant April 24, 1875. Neither it, nor the grant of August 8, 1846, of which it was an extension, reserved any interest in the lands they covered, though, like the swamplands, under the act approved September 28, 1850, these were granted for a special purpose.-Whitehead v. Plummer, (Iowa,) 709. School lands. 5. Gen. St. Minn. 1878, c. 38, §§ 35, 40, authorize payments for school lands, principal and interest, to be made to the county treasurer, who is required to pay the same over to the state treasurer.-Gerken v. Board of County Commissioners, (Minn.) 508. Grant from state. 6. In 1858 the Iowa general assembly granted the Keokuk, F. D. M. & M. R. Co., afterwards the Des Moines Valley R. Co., all lands included in the grant under act Cong. approved July 12, 1862, and all that might be given in extension thereof, and provided for their resumption by the state should the company fail to perform certain conditions. In 1868, the right to resume having accrued, the reserved rights and interests of the state were conferred on the company on its compliance with certain conditions. Laws 12th Gen. Assem. c. 57. Held, that the effect of this act, its conditions being complied with, was to vest title absolutely and at once in the company on January 1, 1871, though the governor did not execute patents till 1881. -Whitehead v. Plummer, (Iowa,) 709. QUIETING TITLE. Possession to maintain. 1. The plaintiff need not be in actual possession of the land when the suit is instituted.-Herron v. Knapp, Stout & Co. Company, (Wis.) 149. Parties. 4. In Minnesota, where, in an action to determine adverse claim to land, defendant interposes an answer in the nature of a cross-action in ejectment for the recovery of possession, and the plaintiff in reply sets up a claim for improvements under the "occupying claimants' act," in case defendant establishes title, the matters set up in the reply constitute no part of plaintiff's case in chief under the complaint, but are only defensive to defendant's answer.-Muller v. Jackson, (Minn.) 565. RAILROAD COMPANIES. Liability for negligence, see Damages, 8, 11; Right to forbid riding on freight trains, Construction of road-Grade crossings. 1. A petition by a railroad company for the appointment of commissioners, which states that it is necessary for the public use to cross the road of another company, and that the board of directors had determined that the taking was necessary to accommodate petitioner's tracks, and develop the business along the line of its road, is sufficient; the question of necessity being for the board, and whether such necessity required the taking of the property being for the commissioners. - Toledo, S. &. M. R. Co. v. East Saginaw & St. C. R. Co. (Mich.) 426; Flint & P M. R. Co. v. Board of Railroad Crossings, (Mich.) 448. 2. Under How. St. Mich. § 3332, providing that a petition for the appointment of commissioners shall state that the company has surveyed the route of its proposed road, and made a map thereof, it is not necessary to aver that the road is in operation, or that ties or rails have been laid on any part of it.-Id.; Id. 3. The petition, having been denied as to one branch of the tracks, may be discontinued as to that, and prosecuted as to the others.-Id.; Id. 2. In an action under Rev. St. Wis. c. 138, § 3186, relating to actions to quiet title, by one of two tenants in common to have a shown by a map of the survey of the main 4. Terminal branches or spur tracks, certificate issued on a foreclosure sale ad-line, which is duly certified by a majority judged to be no lien upon his interest, the of the board of directors, are also suffiOther tenant is not a necessary party; section 3192 providing that a several action' ciently certified.-Id.; Id. may be brought by such tenant in common.-Id. 3. The holders of different and distinct parcels of a tract of land, each having or Fences. 5. The implied exception to Gen. St. Minn. 1878, c. 34, §§ 54, 55, imposing on railway companies the duty of fencing |