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XVI. REVIEW.

(A) Scope and Extent in General.

§ 846 (Mich.) Where a cause is tried by the
court, and no findings of fact or law are made,
its conclusions will not be reviewed.—Silfver v.
Daenzer, 133 N. W. 16.

§ 846 (Minn.) Finding of fact, appearing in
conclusions of law, not inconsistent with other
findings, held to be treated as one of fact.-Pa-
velka v. Pavelka, 133 N. W. 176.

§ 854 (Minn.) Though new trial was improp-
erly granted on one ground, the grant will be
affirmed where there was another ground on
which it might have been properly granted.-
Upton v. Merriman, 133 N. W. 977.

864 (Wis.) An exception to an order of
reference which is preserved in the bill of ex-
ceptions may be reviewed on appeal from the
judgment.-Killingstad v. Meigs, 133 N. W.

632.

§ 866 (Iowa) Evidence which the
record
shows was admitted must be considered as in
the case, though the trial judge thought he
erred in admitting it, if that did not appear from
the record.-Sawyer v. Wapello County, 133
N. W. 104.

(B) Interlocutory, Collateral, and Supple-
mentary Proceedings and Questions.
§ 874 (Wis.) On appeal by defendant from
an order granting plaintiff a new trial for in-
consistency in a special verdict, the court may
also review an order denying defendant's mo-
tion for judgment, notwithstanding the verdict.
-Jones v. Milwaukee Electric Ry. & Light Co.,
133 N. W. 636.

(C) Parties Entitled to Allege Error.
§ 878 (S.D.) The failure of defendant to ap-
peal from an order granting him a new trial
held an acquiescence in the decision of the
court, and to preclude him from urging on
appeal that plaintiff was guilty of contributory
negligence or assumed any risk.-Wright v.
Sioux Falls Traction System, 133 N. W. 696.

§ 882 (Iowa) Appellee, by filing an amend-
ment of an abstract to show the facts according
to the record, did not estop herself from deny-
ing therein that her evidence was properly pre-
served as a part of the record.-First Nat.
Bank of Wilmont, Minn., v. Eichmeier, 133 N.
W. 454.

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fendant's motions to direct a verdict and for
§ 927 (N.D.) In reviewing the denial of de-
judgment non obstante veredicto, the court will
construe the evidence in the light most favor-
able to plaintiff.-Umsted v. Colgate Farmers'
Elevator Co., 133 N. W. 61.

§ 928 (S.D.) Where none of the defendant's
testimony appears in the abstract, and his
only exceptions are to the instructions, every
presumption is in favor of the incorrectness.-
Mills v. Lehman, 133 N. W. 807.

§ 928 (Wis.) The court on appeal from a
judgment awarding damages to abutting own-
ers for a change in the grade of a street held
not enabled to say, in view of the record, that
the admission of evidence was prejudicial to
the city.-Pabst Brewing Co. v. City of Mil-
waukee, 133 N. W. 1112.

§ 930 (Iowa) The court in reviewing the evi-
dence to sustain a verdict will give the success-
ful party the most favorable construction of
the evidence which may reasonably be placed
on it.-Owens v. Norwood-White Coal Co., 133
N. W. 716.

8930 (Wis.) The court on appeal in an ac-
tion for injuries to a servant, held not author-
ized, by virtue of section 2858m, added to St.
1898 by Laws 1907, c. 346, to presume that the
trial court found in favor of the servant on
the issue of assumption of risk.-Kruck v. Wil-
bur Lumber Co., 133 N. W. 1117.

$ 931 (Mich.) In the absence of showing to
the contrary, findings will be presumed to have
been made on request.-Thurber v. Aldrich, 133
N. W. 620.

§ 931 (S.D.) The findings of the trial court
are presumptively correct, and will not be
disturbed, unless it clearly appears that they
are not sustained by the evidence.-Hannahs
v. Provine, 133 N. W. 53.

§ 933 (Minn.) Order granting motion for
new trial, based on excessive damages and
insufficiency of evidence, held not presumed to
have been the exercise of judicial discretion
as to excessive damages.-In re Board of Ed-
ucation, 133 N. W. 1018.

$934 (Minn.) In absence of settled case or
bill of exceptions in divorce action, sufficiency
of pleadings to support judgment held not to
be considered on appeal.-Pavelka v. Pavelka,
133 N. W. 176.

§ 938 (Wis.) Where exceptions, shown to
have been taken too late, are incorporated in a
bill of exceptions without explanation, it must
be presumed that the trial court permitted the
exceptions to be filed after the statutory time.

(F) Discretion of Lower Court.

§ 882 (Iowa) A tornado insurance company-Killingstad v. Meigs, 133 N. W. 632.
sued on a policy held not entitled to complain
of the admission of evidence of the difference
in value of the building before and after a
storm.-Lomack Home for Aged and Infirm
Colored People of Minnesota, Nebraska, and
Iowa v. Iowa Mut. Tornado Ins. Ass'n of Des
Moines, 133 N. W. 725.

(D) Amendments, Additional Proofs, and

Trial of Cause Anew.

$ 888 (Neb.) Amendment of pleadings in Su-
preme Court to conform to evidence held per-
missible.-Bennett v. Baum, 133 N. W. 439.

§ 959 (Iowa) In an action for breach of a
contract to construct a tile drain over plain-
tiff's land, it was not an abuse of discretion to
permit an amendment of the petition, alleging
the cost of tiling the drain through plaintiff's
land.-Fallon v. Amond, 133 N. W. 771.

$ 960 (Neb.) Order requiring defendant to
make answer more definite and certain will be
sustained unless abuse of discretion is shown.
-Bennett v. Baum, 133 N. W. 439.

$970 (Neb.) Whether statements made by
a party to an assault were a part of the res
gestæ held for the trial court.-Smith v. Roeh-
rig, 133 N. W. 230.

§ 970 (N.D.) Discretion of trial court in
permitting or refusing permission to reopen
case held not to be disturbed, except in case
of abuse of discretion.-Fried v. Olsen, 133
N. W. 1041.

§ 971 (Iowa) The discretion of the trial
court to determine whether questions on ex-
amination are leading and suggestive will not
be reviewed on appeal where no abuse of dis-
cretion appears.-Payne v. Waterloo, C. F. &
N. Ry. Co., 133 N. W. 781.

The court on appeal will not review the act
of a trial court in admitting evidence on re-
direct examination which should have been
given on direct examination, where no abuse of
discretion appears.-Id.

$973 (Wis.) Act of court in submitting case
to jury should not be overruled, unless mani-
festly wrong.-Samulski v. Menasha Paper
Co., 133 N. W. 142.

§ 977 (S.D.) A stronger case must be made
to justify reversal of an order granting a new
trial than if the order refuses the application.
-Alderson v. Larson, 133 N. W. 809.

978 (Iowa) Refusal of a new trial on the
ground of improper argument of counsel held
within the discretion of the court below.-Swan-
son v. Ft. Dodge, D. M. & S. R. Co., 133 N. W.
351.

§ 979 (Minn.) Where the court assigns as a
reason for a new trial the failure to offer par
ticular evidence, the order will be reversed if
the particular evidence was not essential.-Hull

N. W. 852.

v. Minneapolis, St. P. & S. S. M. Ry. Co., 133
Order granting new trial for insufficiency of

evidence held erroneous.-Id.

Rule that orders granting new trials for
insufficiency of evidence will be sustained as
discretionary held to include only cases where
the trial court is justified in concluding that
justice requires submitting the evidence to an-
other jury.-Id.

§ 979 (Wis.) A grant of a new trial, because
the verdict is against the evidence, will not be
reviewed, unless abuse of discretion is shown.
-Comstock v. Buckley, 133 N. W. 581.

8981 (S.D.) The trial court's decision under
Code Civ. Proc. § 301, subd. 4, on an applica-
tion for a new trial for newly discovered evi-
dence, will not be reversed in the absence of
abuse.-Alderson v. Larson, 133 N. W. 809.

§ 986 (N.D.) Discretion of trial court in
granting a stay of proceedings on overruling
demurrer to complaint will not be interfered
with; it being an intermediate order within Rev.
Codes 1905, § 7216.-Deveraux v. Katz, 133 N.
W. 553.

Supersedeas bond on appeal from an order
overruling a demurrer to complaint will be
denied, where former denial by trial court does
not seem an abuse of discretion.-Id.

(G) Questions of Fact, Verdicts, and Find-
ings.

§ 997 (Wis.) On appeal, much deference
must be given to the ultimate conclusion reach-
ed by the trial court on a given matter.-
Schweikert v. John R. Davis Lumber Co., 133
N. W. 136.

§ 997 (Wis.) Judicial determination that
there is evidence to support verdict either way
will not be disturbed, unless clearly wrong.
White v. Minneapolis, St. P. & S. S. M. Ry.
Co., 133 N. W. 148.

$ 999 (Wis.) Reasonable doubts should be re-
solved in favor of the verdict.-Samulski v.
Menasha Paper Co., 133 N. W. 142.

§ 1001 (Iowa) Where a case is properly tried
to a jury, the verdict will not be set aside on

appeal, if there was any substantial testimony
in support of the various issues.-Wickwire
v. Webster City Savings Bank, 133 N. W. 100.
§ 1001 (Wis.) A verdict on evidence pre-
senting a case for the jury is controlling on
appeal.-Brown v. Milwaukee Electric Rỹ. &
Light Co., 133 N. W. 589.

§ 1002 (Iowa) A finding on conflicting evi-
dence is conclusive on appeal.-Murphy v. Bet-
tendorf Metal Wheel Co., 133 N. W. 349.

§ 1002 (Iowa) The credibility of witnesses
being for the jury, a verdict on conflicting evi-
dence will not be disturbed on appeal.-Lomack
Home for Aged and Infirm Colored People of
Minnesota, Nebraska, and Iowa v. Iowa Mut.
Tornado Ins. Ass'n of Des Moines, 133 N. W.
725.

verdict unless there is no evidence to sustain
$ 1003 (Wis.) The court cannot set aside a
it.-Asserin v. Modern Brotherhood of America,
133 N. W. 579.

§ 1004 (Iowa) That a verdict for defendant
on a counterclaim was for less than it should
have been under the instructions is not avail-
able to plaintiff for error.-Bell v. Kearns, 133
N. W. 347.

§ 1004 (Neb.) Judgment for damages held not
to be reversed as not supported by the evidence
and excessive unless the court on appeal can
say that it is wholly unsupported by the evi-
dence.-Essex v. Ksensky, 133 N. W. 868.

§ 1008 (Mich.) Since every finding stands in
lieu of a special verdict, the Supreme Court
will accept everything as facts found, though
not separated from conclusions of law.-White
v. United States Gypsum Co., 133 N. W. 501.
ponderance in number of witnesses will not be
§ 1010 (Iowa) A finding sustained by a pre-
disturbed on appeal.-Coleman v. Coleman, 133

N. W. 755.

$ 1010 (Wis.) Findings of fact will not be
disturbed, when supported by evidence.-Claus-
ing v. Jacobs, 133 N. W. 582.

§ 1011 (Neb.) Verdict on question of limita-
tions on conflicting evidence will not be dis-
turbed.-Sibley & Davis v. Rodgers, 133 N. W.
1130.

§ 1012 (Minn.) The evidence must be clearly
against the findings to justify interference on
appeal, whether the fact found is required to
be established by preponderance of the evi-
dence, or by convincing evidence.-Oertel v.
Pierce, 133 Ñ. W. 797.

§ 1024 (Mich.) Finding upon a motion to set
aside a judgment that the defendant was es-
topped to deny his liability upon a surety bond,
being supported by affidavits, held not subject
to review upon error.-Anderson v. Henderson,
133 N. W. 14.

(H) Harmless Error.

§1033 (Mich.) Circuit court rule 26 con-
templates the filing of requests which shall
apprise the court of the parties' demands, and
only the party whose requests are refused
is entitled to complain thereof.-Silfver v.
Daenzer, 133 N. W. 16.

§ 1034 (Wis.) Technical errors should be
overlooked, unless manifestly, had they not oc-
curred, the result might have been more fa-
vorable to the complaining party. Samulski v.
Menasha Paper Co., 133 N. W. 142.

§ 1044 (Wis.) Error in ordering a compul-
sory reference in mechanic's lien proceedings
held reversible.-Killingstad v. Meigs, 133 N.
W. 632.

§ 1046 (Minn.) Any error in remark of trial
judge held abstract, and not ground for re-
versal.-Willard v. St. Paul City Ry. Co., 133
N. W. 465.

§ 1048 (S.D.) Error in permitting a question
on defendant's cross-examination to impeach

his credibility held prejudicial.-Richardson v.
Gage, 133 N. W. 692.

§ 1048 (Wis.) Defendant purchaser, in a suit
for breach of a contract for the sale of land,
held not prejudiced by the court's erroneous
refusal to allow him to cross-examine his co-
defendant, the vendor, as an adverse witness.
-O'Day v. Meyers, 133 N. W. 605.

§ 1050 (Iowa) In an action for personal in-
juries, the admission of evidence on the meas-
ure of damages held not erroneous in view of
other evidence.-Murray v. Chicago, R. I. & P.
Ry. Co., 133 N. W. 123.

$1050 (Iowa) The error, if any, in allowing
a daughter of plaintiff suing for a personal in-
jury to state a fact, held not reversible.--Boice
v. Des Moines City Ry. Co., 133 N. W. 657.

§ 1050 (Iowa) In an action for death in a
collision between a steam railroad and an in-
terurban railroad train, defendant held not
prejudiced by the admission in evidence of the
articles of incorporation of the interurban rail-
road.-Grace v. Minneapolis & St. L. R. Co.,
133 N. W. 672.

1050 (Iowa) Any error in receiving an-
swers, not responsive to questions asked a wit-
ness, held not ground for reversal.-Lomack
Home for Aged and Infirm Colored People of
Minnesota, Nebraska, and Iowa v. Iowa Mut.
Tornado Ins. Ass'n of Des Moines, 133 N. W.
725.

§1050 (Iowa) Error in admitting evidence
in an action against an administrator as to
plaintiff's understanding with decedent held
prejudicial.-Sheldon v. Thornburg, 133 N. W.

1076.

1050 (Iowa) Error in admitting evidence
was cured by the admission of other evidence
to the same effect, where the appeal was from
a directed verdict.-Sevening v. Smith, 133 N.
W. 1081.

§ 1050 (Mich.) In an action for assault and
battery, error in admitting evidence held prej-
udicial, as influencing the jury to return for
plaintiff a small verdict.-Mills v. Warner, 133
N. W. 494.

§ 1050 (Mich.) In an action by city water
commissioners against a tunnel contractor for
reimbursement of the expense of protecting
water mains pending construction of the tun-
nel, admission of evidence held not reversible
error.-Board of Water Com'rs of City of De-
troit v. Butler Bros. Const. Co., 133 N. W.
1006.

In an action by city water commissioners
against a tunnel contractor for reimbursement
of the expense of protecting water mains pend-
ing construction of the tunnel, admission of
testimony as to why the board refused to re-
call watchmen held not error.-Id.

$1050 (Wis.) In an action for firing plain-
tiff's barn, held, that it was not prejudicial er-
ror to allow plaintiff to contradict testimony
given by defendant's witness on cross-examina-
tion.-Cook v. Doud Sons & Co., 133 N. W. 40.
§ 1051 (Iowa) Error in the exclusion of evi-
dence is made harmless, where the facts are
otherwise proven.-J. N. Dunlop & Co. v. An-
derson, 133 N. W. 910.

§ 1051 (Iowa) Error in admitting evidence
on cross-examination was not prejudicial to
defendant, where the same facts were estab-
lished by the undisputed evidence of other
witnesses.-Parks v. Town of Laurens, 133 N.
W. 1054.

§ 1051 (S.D.) Admission of notes and chattel
mortgages, paid after suit brought, held not
error.-First Nat. Bank of Wheaton, Minn., v.
Miller, 133 N. W. 264.

§ 1051 (Wis.) In an action for injuries to
a servant by the starting of a machine, the
error in permitting an expert to give an opin-
ion held not prejudicial, in view of the issues.

-Korn v. Pfister & Vogel Leather Co., 133 N.
W. 586.

§ 1052 (Iowa) Certain rulings on the admis-
sion of evidence, which could have only affected
the measure and not the right of recovery, held
not prejudicial where no substantial damages
were awarded.—Reinking v. Goodell, 133 N. W.
774.

$1052 (Iowa) Error in asking a question
calling for an opinion whether weather condi-
tions were such as to produce sweating of
street car rails held not prejudicial in view of
other testimony on the same subject.-Payne v.
Waterloo, C. F. & N. Ry. Co., 133 N. W. 781.
§ 1052 (Mich.) In an action under the sur
vival act for the death of an infant 27 months
of age, held, that the admission of the mortality
tables under Comp. Laws 1897, § 7220, was
reversible error.-Morse v. Detroit, G. H. &
M. Ry. Co., 133 N. W. 935.

§ 1052 (S.D.) Error in the admission of sec-
ondary evidence as to the nature of a written
contract for the sale and purchase of land was
harmless, where the original contract was it-
self put in evidence.-Kimm v. Wolters, 133 N.
W. 277.

1053 (Mich.) Where grounds of objections
to evidence are not raised by exceptions and
assignments of error, and the court, when ob-
jection was made to other evidence, struck out
the answer, there was no prejudicial error.-
J. H. Worden Lumber & Shingle Co. v. Minne-
apolis, St. P. & S. S. M. Ry. Co., 133 N. W.
949.

§ 1053 (Minn.) Any error in admission of
evidence as to value of location for rental pur-
poses held without prejudice, in view of in-
structions. In re Board of Education, 133 N.
W. 1018.

§ 1056 (Minn.) The exclusion of testimony
given on former trial held not reviewable,
where it is not shown to be material.-Gutmann
v. Klimek, 133 N. W. 475.

1056 (N.D.) Exclusion of evidence in ac-
tion for deceit held without prejudice.-Gunder-
son v. Havana-Clyde Mining Co., 133 N. W.
554.

after the sustaining of an objection to a ques-
§ 1058 (Iowa) The testimony of a witness
tion asked held to render any error therein
harmless.-Payne v. Waterloo, C. F. & N. Ry.
Co., 133 N. W. 781.

Where immediately after the sustaining of
tion it was renewed in a different form and
an objection to a question on cross-examina-
fully answered, it cannot be complained of on

appeal.-Id.

$1058 (S.D.) The error, if any, in sustain-
ing objections to questions put to a witness,
sought to be elicited was subsequently given
held not prejudicial, where all the testimony
133 N. W. 281.
by the same witness.-McGinty v. Reynolds,

§1062 (Neb.) It is prejudicial error to sub-
mit a controverted defense not supported by
the evidence.-Sabin v. Cameron, 133 N. W.
422.

§ 1064 (Iowa) Errors in instructions in an
action against a carrier held prejudicial.-
Wilke v. Illinois Cent. R. Co., 133 N. W. 746.
§ 1064 (Mich.) A verdict for plaintiff not be-
ing clearly against the evidence, a judgment
thereon will not be reversed because the charge
was not illuminating; neither party having
amendments thereto.-Baxter
suggested
Cowhey, 133 N. W. 936.

v.

§ 1064 (Neb.) Giving of unnecessary instruc-
tion held not reversible error, unless complain-
ing party appears to have been prejudiced.-
Johnson v. Ish, 133 N. W. 201.

§ 1064 (Neb.) Judgment will not be reversed
for erroneous instruction, when the party com-

plaining has not been prejudiced.-Smith v.
Roehrig, 133 N. W. 230.

(K) Subsequent Appeals.
1097. A decision on a former appeal is the
-(Iowa) Dickinson v. Stevenson, 133 N. W.
321; Paulsen v. Bettendorf Axle Co., Id.
327;

§ 1064 (S.D.) Error in charging that a writ-law of the case on a subsequent appeal.
ten contract might be modified by parol and
without new consideration held harmless in
view of the facts of the case.-Kimm v. Wol-
ters, 133 N. W. 277.

§ 1064 (S.D.) Where, in an action upon a
note, there was under proper instructions am-
ple evidence, if believed, to support a verdict
for defendant, the giving of erroneous instruc-
tions was prejudicial error and ground for re-
versal.-Fellows v. Christensen, 133 N. W. 814.
§ 1064 (Wis.) In an action for injuries to a
servant by his hand coming in contact with a
saw, an instruction held not reversible error as
assuming that plaintiff must have known that
the saws were unguarded.-Solberg v. Robbins
Lumber Co., 133 N. W. 28.

§ 1066 (Iowa) Defendant held not prejudiced
by an instruction, defining the degree of care
required of decedent as "reasonable care for
his own safety," instead of "the high degree
of care which the circumstances required."-
Grace v. Minneapolis & St. L. R. Co., 133 N.

W. 672.

81066 (Iowa) Any error in instructions held
not prejudicial.-Reinking v. Goodell, 133 N. W.

774.

§ 1067 (S.D.) Failure to instruct as to the
purpose of parol evidence admitted to aid con-
struction of a written contract held not rever-
sible error, where the jury could not have been
misled by the other instructions given.-Kimm

v. Wolters, 133 N. W. 277.

§ 1068 (Iowa) Defendant held not prejudiced
by an instruction limiting the recovery to the
amount prayed.--Grace v. Minneapolis & St. L.
R. Co., 133 N. W. 672.

§ 1068 (Mich.) A party obtaining a verdict
is not prejudiced by instructions failing to
properly charge on the preponderance of the
evidence.-Mills v. Warner, 133 N. W. 494.

§ 1068 (Minn.) Error in instructions, not af-
fecting the verdict, is harmless.-Brown v. An-
drews, 133 N. W. 568.

§ 1068 (Wis.) In an action for injuries to a
traveler in a collision with a street car, the er-
ror in an instruction held not prejudicial to
plaintiff, in view of the verdict.-Brown v. Mil-
waukee Electric Ry. & Light Co., 133 N. W.

589.

§ 1070 (Wis.) In an action for injuries to a
servant, the error in a question in the special
verdict, because double, held not prejudicial.-
Korn v. Pfister & Vogel Leather Co., 133 N.
W. 586.

$1073 (S.D.) Error in awarding property in
replevin to both defendants, though one of
them disclaimed ownership, held not prejudicial.
-First Nat. Bank of Wheaton, Minn., v. Mill-
er, 133 N. W. 264.

(J) Decisions of Intermediate Courts.
§ 1091 (Wis.) Where a cause appealed from
the civil court of the city of Milwaukee to the
circuit court is tried on the record, and noth-
ing appears to the contrary, it must be pre-
sumed that the circuit court rendered judgment
on the evidence it deemed competent.-Rosen-
berg v. Sheahan, 133 N. W. 645.

§ 1094 (Iowa) Where a contempt proceed-
ing is brought to the Supreme Court for re-
view on certiorari, the trial court's findings of
fact have not the force of a verdict, and will
not be sustained unless there is a fair conflict
of the evidence.-McNiel v. Horan, 133 N. W.

1070.

§ 1094 (Wis.) A finding of fact by the civil
court of Milwaukee confirmed by the circuit
court on appeal cannot be disturbed unless
there is no substantial basis for it in the evi-
dence.-Rosenberg v. Sheahan, 133 N. W. 645.

(Minn.) Howard v. Illinois Cent. R. Co., 133
N. W. 557.

1097 (N.D.) Statement by the appellate
court of the rules of law applicable to the sub-
ject-matter of a case before it is the law of the
case, and will control on a subsequent appeal.-
Umsted v. Colgate Farmers' Elevator Co., 133
N. W. 61.

XVII. DETERMINATION AND DISPO-
SITION OF CAUSE.

(A) Decision in General.

counting who does not appeal from a judgment
§ 1117 (Iowa) A plaintiff in a suit for an ac-
in his favor held not entitled to recover a
larger amount in the Supreme Court than he
York Brokerage Co., 133 N. W. 110.
obtained in the court below.-Fryer v. New

not be decreed under the findings of the trial
§ 1122 (S.D.) Where, relief prayed for can-
court, the Supreme Court may not make new
findings to justify such relief.-Bates v. Loffler,
133 N. W. 283.

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1169 (S.D.) The rule that a correct judg-
ment, though based on an erroneous ground,
will be affirmed should be applied only when
the merits of the cause are clear.-Sioux Rem-
edy Co. v. Cope, 133 N. W. 683.

section 3072m, as added by Laws 1909, c. 192,
§ 1170 (Wis.) Under St. 1898, § 2669, and
the error in admitting evidence which consti-
tuted a variance from the complaint held harm-
less.-Cook v. Doud Sons & Co., 133 N. W. 40.
81177 (N.D.) Judgment on pleadings for
corporation reversed and new trial granted,

though the judgment for other defendants is af-
firmed.-Gunderson V. Havana-Clyde Mining
Co., 133 N. W. 554.

(F) Mandate and Proceedings in Lower

Court.

§ 1194 (Mich.) A decision on appeal revers-
ing the judgment solely for lack of necessary
parties is not an adjudication as to other de-
fects in the pleadings.-Godfrey Lumber Co. v.
Kline, 133 N. W. 528.

§ 1203 (Iowa) On remand of case for ac-
counting for protection of plaintiff's rights,
held, an accounting on both sides was properly
allowed.-Porter v. Farmers' & Merchants'
Savings Bank, 133 N. W. 372.

amended by Laws 1905, c. 365, held, that a dis-
§ 1203 (Wis.) Under St. 1898, § 3072, as
missal of a cause by the circuit court after re-
Cornelius, 133 N. W. 34.
was properly granted.-Eisentraut v.

mand

APPEARANCE.

See Appeal and Error, § 662; Corporations, f
508; Drains, § 30.

APPLIANCES.

ASSIGNMENT OF ERRORS.

See Master and Servant, §§ 107-297; Negli- See Appeal and Error, §§ 655, 728, 1053.
ligence, § 21.

APPLICATION.

See Payment.

APPROPRIATION.

See States.

ARBITRATION AND AWARD.

See Reference.

ARGUMENT.

See Criminal Law, §§ 1136, 1178.

ARGUMENT OF COUNSEL.

See Appeal and Error. §§ 237, 547, 978; Crim-
inal Law, 88 703-730, 1171; Trial, 88 120-
133.

ARREST.

See Bail; Burglary; Conspiracy; Criminal
Law, § 1172; Extortion; Indictment and In-
formation, § 169; Threats.

II. ON CRIMINAL CHARGES.

$ 64 (Iowa) Under Code, §§ 5196, 5197, a
private person held to have the same rights to
make an arrest as a peace officer, where the
offense for which the arrest was made is a
felony.-State v. Browning, 133 N. W. 330.

ARSON.

§ 37 (Minn.) In a prosecution for arson in
the third degree, evidence held to sustain a
conviction.-State v. Henricksen, 133 N. W.
850.

ASSAULT AND BATTERY.

See Appeal and Error, §§ 970, 1050; Evidence.
§317; Master and Servant, § 302; Rape, §§
16, 53; Witnesses, § 405.

I. CIVIL LIABILITY.

(B) Actions.

§ 27 (Mich.) In an action for assault and
battery, certain evidence held immaterial.-Mills
v. Warner, 133 N. W. 494.

§ 27 (Neb.) In action for assault and bat-
tery, evidence as to physical condition of de-
fendant's wife, who was assaulted by another
than plaintiff, held properly refused.-Johnson
v. Ish, 133 N. W. 201.

§ 30 (Mich.) In an action for assault and
battery, certain testimony held inadmissible,
as too remote for provocation, and could not
be considered in mitigation.-Mills v. Warner,
133 N. W. 494.

§ 31 (Mich.) In an action for assault and
battery, evidence of statements by plaintiff
after the assault that he intended to sue de-
fendant held inadmissible.-Mills v. Warner, 133
N. W. 494.

$40 (Neb.) Award of $1,000 damages, re-
duced by the court to $600, held not excessive.
-Johnson v. Ish, 133 N. W. 201.

§ 43 (Neb.) In action for assault and bat-
tery, instructions as to rights of defendant as
fire reporter, and while wearing a policeman's
star, held proper.-Johnson v. Ish, 133 N. W.
201.

ASSESSMENT.

See Insurance, §§ 734, 753; Municipal Corpo-
rations, §§ 408-513; Taxation, §§ 67-493.

ASSIGNMENTS.

See Assignments for Benefit of Creditors; Con-
tracts, 187; Fraudulent Conveyances; Land-
lord and Tenant, § 76; Mortgages, § 391;
Public Lands; Subrogation; Trusts, §§ 243,
262.

I. REQUISITES AND VALIDITY.
(A) Property, Estates, and Rights Assign-
able.

§ 19 (Iowa) A vendor need not accept a
mortgage from the purchaser's transferee, in
satisfaction of the purchaser's obligation to
give a mortgage.-Hounchin v. Salyards, 133 N.
W. 48.

$22 (Minn.) Assignment of chose in action
held valid as between assignor and assignee,
and notice only necessary to charge the debtor
with payment.-Cross v. Page & Hill Co., 133
N. W. 178.

(B) Mode and Sufficiency of Assignment.
$57 (Minn.) Assignment of chose in action
held valid as between assignor, and assignee,
and notice only necessary to charge the debtor
with payment.-Cross v. Page & Hill Co., 133
N. W. 178.

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I. REQUISITES AND VALIDITY.
(A) Nature and Essentials of Trusts for
Creditors.

§ 23 (Minn.) Rev. Laws 1905, § 3249, subd.
6, authorizing the creation of express trusts,
held not applicable to assignments for bene-
fit of creditors.-Moore v. Cushing, 133 N. W.
561.

§ 44 (Minn.) Common-law assignment for
benefit of creditors, requiring release of debt-
or, held invalid as to creditors not assenting.-
Moore v. Cushing, 133 N. W. 561.

V. RIGHTS AND REMEDIES OF
CREDITORS.

(D) Setting Aside Assignment.

§ 343 (Minn.) Creditor not assenting to as-
signment for benefit of creditors held entitled
to attack it in any appropriate proceeding, and
not required to resort to bankruptcy or in-
solvency proceedings.-Moore v. Cushing, 133
N. W. 561.

ASSOCIATIONS.

See Corporations, §§ 25, 28; Insurance, §§
734-819.

ASSUMPSIT, ACTION OF.

See Money Received.

ASSUMPTION.

Of risk, see Master and Servant, §§ 11, 180-
288.

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