2. Where it clearly appears that the defendant was not misled, surprised, or in any way prejudiced from maintaining his defense upon the merits, an amendment of the complaint to conform to the facts proved should be allowed. French v. State Farmers' Hail Ins. Co. L.R.A.1915D, 766, 151 N. W. 7, 29 N. D. 426. Declaration or complaint. Disbarment of attorney for malicious attack on court in petition, see Evidence, 43. 3. One cannot recover for aggravation of a condition existing at the time of a personal injury due to another's negligence unless such condition and its aggravation are pleaded. Salmi v. Columbia & N. R. R. Co. L.R.A.1915D, 834, 146 Pac. 819, Or. -. 4. To render directors of a corporation personally liable for failure to file a certificate of payment of the capital stock, under a statute compelling them to do so within a certain time after payment of the last instalment of the stock "fixed and limited" by statute or vote of the corporation, the complaint must show that the capital was fixed and limited, and that the last instalment had been paid. J. L. Mott Iron Works v. Arnold, L.R.A.1915D, 1028, 87 Atl. 17, 35 R. I. 456. Demurrer. Demurrer to return in mandamus pro ceeding, see Mandamus, 3. 5. A petition alleging in substance that the proprietor of a business house whose place of business abutted on a much traveled street in a city placed on the sidewalk in front of his place of business, without confining in a receptacle, or in any other way, on a day when the wind was blowing sharply, a large quantity of trash and loose sheets of paper, which were naturally liable to be blown about the streets by even a light breeze, and naturally and inevitably tended to excite and frighten not only nervous horses, but even quiet and steady ones, and further alleging that the plaintiff was injured while driving two reasonably well broken, steady, and roadworthy horses along the street, through their becoming frightened by papers from the pile being blown against their legs, sufficiently alleges negligence so as to withstand a general demurrer. Bowen Smith-Hall Grocery Co. L.R.A.1915D, 617, 82 S. E. 23, 141 Ga. 721. POLICE. V. PROXIMATE CAUSE. One who negligently places large quantities of loose paper upon a street, where it will naturally be blown against horses in the street, with knowledge that the wind is blowing, or in the ordinary course of nature is likely to blow while the paper remains there, cannot claim that such a wind is an independent intervening cause, so as to prevent his negligence from being the proximate cause of an injury to a traveler on the street from his horses becoming frightened; especially where there is nothing in the case to show that there was any unforeseen or sudden wind of such a character as to come within the legal meaning of the expression "an act of God." Bowen v. Smith-Hall Grocery Co. L.R.A. 1915D, 617, 82 S. E. 23, 141 Ga. 721. PUBLIC IMPROVEMENTS. Cost of constructing and maintaining bridge, see Bridges. Matters peculiar to drains and sew- made in proportion to benefits, see Writ of review to review facts upon 5. Irregularities or defects in proceedings for a public improvement, and the assessment of benefits therefor, which are not brought to the attention of the court in a proceeding to review such proceedings, are waived and cannot be brought forward in a proceeding to review a reassessment made in accordance with the judgment entered on such review. Reiff V. Portland, L.R.A. 1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. 6. The cost of extending a fill for a street improvement over onto adjoining property cannot be assessed against the property benefited by the improvement so far as it is in excess of the cost of a proper retaining wall. Reiff v. Portland, L.R.A. 1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. PUBLIC MONEYS. Assumpsit for, see Assumpsit, 2. PUBLIC PROPERTY. PUBLIC RIGHT. Who may maintain action to protect, see Parties, 3-7. See Schools. 1. An assessment for a street improvement is not invalidated by the fact that the municipality, in making a fill in the high- PUBLIC SCHOOLS. way, extended the slope onto abutting property without obtaining a right to do so, and thereby became a trespasser, although the expense of the encroachment is included in the assessment. Reiff v. Portland, L.R.A. 1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. (Annotated) 2. That a section of street which is to be improved as a whole contains a wooden viaduct which will require a fill does not make the portions of the improvement on either side of it two improvements, requiring separate proceedings, under a charter providing that the improvement of each street or part thereof shall be made under a separate proceeding. Reiff v. Portland, L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. 3. The objection that an assessment for a street improvement is void because a portion of the improvement extended upon private property without acquiring the right, and that it is not made on the theory required by statute, may be raised by review of the assessment without the necessity of an appeal. Reiff v. Portland, L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. 4. Where the statute provides for filing objections to a municipal improvement, taxpayers waive the objection that two separate portions of a street were included in one proceeding by failing. to raise the question at the time the statute provides. Reiff v. Portland, L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. PUBLIC SERVICE COMMISSION. Authority as to depots, see Carriers, Presumption in support of order of, see Regulation of water rates by, see Wa- 1. A question as to the ownership of an irrigation canal is one over which the Railway Commission has no jurisdiction. MeCook Irrigation & W. P. Co. v. Burtless, L.R.A.1915D, 1205, 152 N. W. 334, P. U. R. 1915C, 587, Neb --. 2. An order of a Railroad Commission requiring construction of a union railroad ing railroads to maintain such stations station under authority of a statute requirwhen the necessities of the case demand it, commensurate with the business and revecourt, in the absence of evidence to the connues of the company, will be accepted by the trary, as a finding that the situation jusG. S. R. Co. L.R.A.1915D, 98, 64 So. 13, 185 tifies it. Railroad Commission v. Alabama Ala. 354. PUBLIC WATER SUPPLY. PULLMAN CAR. Limitation of liability for injury to employee on, see Carriers, 6. Operator on, as employee of railroad hauling car, see Master and Servant, 1. PUNISHMENT. For contempt, see Contempt, 7. QUOTATIONS. Offer by, see Contracts, 1. RACE SEGREGATION. See Constitutional Law, 14. RAILROAD COMMISSION. See Public Service Commissions. RAILROADS. Statute as to remodeling or construction of caboose, see Action or Suit, 2; Commerce; Evidence, 3; Statutes, 4. Injury to passenger by application of emergency brake to save person in peril on crossing, see Carriers, 2-4. Forbidding person to act as conductor without having previously served as freight conductor or brakeman, see Constitutional Law, 11. Railroad track across property as breach of covenant against encumbrances, see Covenants and Conditions, 3. Garnishment of cars of foreign rail road company, see Garnishment. Use and occupation of highway for, see Highways, 2. Rights, duties and liabilities as to employee, see Master and Servant. Limiting hours of labor of employees, see Master and Servant, 2, 3. Liability on theory of attractive nuisance for injury to child, see Negligence, 3. 1. An exercise of the right of eminent domain is not necessary to enable a street railway company, having municipal authority to lay its tracks along a public highway, to cross the tracks of a railroad company which are laid across the street at grade. Mississippi C. R. Co. v. Hattiesburg Traction Co. L.R.A.1915D, 843, 67 So. 897, Miss. 3. A statute requiring railroad companies to give signals when trains approach highway crossings creates no duty in favor of persons working near the crossing, and therefore a railroad company which failed to give the required signal is not liable for injury to one at work near the crossing, through the frightening of his horse, although at the time of injury he had taken the horse onto the highway on his way home, to reach which required traveling away from the railroad track. Hutto v. Southern R. Co. L.R.A.1915D, 962, 84 S. E. 719, S. C. (Annotated) RAPE. Evidence in prosecution for, see Evidence, 39. RATES. Water rates, see Waters, 4-8. RATIFICATION. By corporation, see Corporations, 2-4. REAL ESTATE BROKER. REAL PROPERTY. Oral contract as to, see Contracts, 4, 5. REASONABLENESS. Of municipal ordinance generally, see RECEIVERS. Right of receiver to appeal, see Appeal and Error, 4. Mandamus to, see Mandamus, 1. RECORD. Liability for defective search of, see Abstracts. On appeal, see Appeal and Error, 5. Recording notice of redemption, see Constitutional Law, 20. Recording of assumed name under which business is transacted, see Contracts, 8. Judicial notice by court of its own rec ords, see Evidence, 1. Of certificate giving names of members of partnership doing business under assumed name, see Tradename, 3. REDEMPTION. From foreclosure sale, see Mortgage, 4. REFORMATION OF INSTRUMENTS. Of insurance policy, see Insurance, 4. REGISTRATION. Of automobile, see Automobiles, 2. REHEARING. On appeal, see Appeal and Error, 29. RELATIONSHIP. Evidence of, see Evidence, 26. RELEASE. By porter on Pullman car of carrier's liability for injury, see Carriers, 6. Of mortgage, see Mortgage, 2. RELEVANCY. Of evidence, see Evidence, 32-43. RELIGIOUS FREEDOM. In general, see Constitutional Law, 19. RELIGIOUS SOCIETIES. Forbidding location of public garage near church, see Buildings, 4; Municipal Corporations, 6. RELIGIOUS TEACHING. RENT. Husband's right to recover rent of wife's property, see Husband and Wife, 6. REPAIRS. Lien for, see Liens. REPEAL. Of statute, see Statutes, 9. REPETITION. Of instruction, see Trial, 10. REPLEVIN. REVENUE. Power of legislature as to raising of, see Legislature. REVERSIBLE ERROR. See Appeal and Error, 20-26. The facts upon which an assessment for a public improvement is based and the result of the assessment cannot be reviewed by writ of review where the statute provides for an appeal, where the facts may be passed upon by a jury. Reiff v. Portland, L.R.A.1915D, 772, 141 Pac. 167, 142 Pac. 827, 71 Or. 421. REVOCATION. Of will, see Wills, 1, 2. RIGHT OF WAY. Ordinance giving mail carrier right of way in street, see Evidence, 36. ROBBERY. Indictment for, see Indictment, etc., 4. SALE. Acceptance of offer, see Contracts, 1. Governmental regulation of, see Constitutional Law, 12, 13. Priority of lien for repairs over claim of conditional vendor of property, see Liens, 3-5. Of land generally, see Vendor and Purchaser. To recover exempt property levied on, Passing of title; delivery. see Levy and Seizure, 2. REPRESENTATIONS. By insured, see Insurance. RESCISSION. 1. The failure of a seller of goods to promptly reclaim the goods, which were sold under a contract providing for cash on delivery, upon the failure of the purchaser to pay when the goods were delivered, and his unsuccessful endeavor for Of land contract, see Vendor and Pur- six months to collect the account, constichaser. RESERVOIR. tute in law a waiver of the conditions of the sale so that the title passes to the buyer, where it is not shown that the sel Drowning of child in, see Negligence, 4. ler's delay in reclaiming the goods was RES GESTÆ. See Evidence. RESIDENCE. For purpose of divorce suit, see Divorce and Separation. RESIGNATION. Acceptance of resignation of employee, see Master and Servant, 4, 5. RES JUDICATA. See Judgment, 1, 2. RESPONDEAT SUPERIOR. RETAINING JURISDICTION. caused by some trick or artifice on the part Damages for breach of warranty, see Evidence on question of breach of war- 2. The liability of a manufacturer of fertilizer upon his warranty to the retailer cannot be enlarged by warranties inserted by the latter in his contracts with consumers. Hampton Guano Co. v. Hill Live-Stock Co. L.R.A.1915D, 875, 84 S. E. 774, 168 N. C. 442. 3. An action for the purchase price of fertilizer sold under a warranty as to in See Executors and Administrators, 5. gredients cannot be defeated because it was RETURN. not suitable to the purpose for which it was sold. Hampton Guano Co. v. Hill LiveTo rule to show cause in contempt pro- Stock Co. L.R.A.1915D, 875, 84 S. E. 774, ceeding, see Contempt, 6. 168 N. C. 442. |