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 stipulation 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 mandatory, 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 consilered 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. Careaya (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. McLaughin 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, 277. 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

not signed when filed, either by the appellant, or his attorney, or other person for him, in the manner required by statute. Snow v. Crow (Utah), I, 698.

30. APPLICATION FOR A NEW TRIAL ON THE GROUNDS OF INSUFFICIENCY OF THE EVIDENCE to justify the findings of fact, conclusions of law, and judgment of the court, and that the same were against law, and for errors of law occurring at the trial, must be made upon a statement prepared as the statute requires. Simpson v. Ogg (Nev.), I, 303.

31. APPEAL FROM AN ORDER DENYING AN APPLICATION FOR A NEW TRIAL made on such grounds will be dismissed, unless the transcript contains a statement of the case properly certified as to its correctness by the judge. Id.

32. ERRORS APPEARING IN THE JUDGMENT ROLL CAN NOT BE REVIEWED on an appeal from an order denying a motion for a new trial only. Id.

33. CONFLICTING CHARGE TO THE JURY, IF NOT PREJUDICIAL TO THE BEATEN PARTY, is not ground for a new trial. Overland Mail etc. Co. v. Carroll (Col.), I, 281. 34. NEW TRIAL WILL BE GRANTED WHEN THE JURY ARE INSTRUCTED to find upon a material fact, concerning which no evidence has been introduced at the trial. Tognini v. Hansen (Nev.), I, 146.

35. NEW TRIAL, WHEN NOT GRANTED WHERE EVIDENCE IS CONFLICTING.-Where the evidence is conflicting, an appellate court will not grant a new trial upon the ground that the findings are contrary to the evidence, unless the preponderance is so apparent and marked that the court can have no hesitancy in declaring that the particular finding under review is against the evidence. Harrington et al. v. Chambers (Utah), I, 63.

36. WHETHER AN APPELLATE COURT SHOULD GRANT A NEW TRIAL FOR AN ERROR in admitting evidence of a parol agreement between the parties when a written agreement was alleged, unless it is plain from the case that a different result would be reached on a new trial, quære. Tweed v. Lowe (Ariz.), I, 658. 37. WHERE A CAUSE IS REMANDED BY THE SUPREME COURT for further proceedings, unless the order of the court is restricted, the cause goes back to the superior court to be retried, subject to the views expressed by the supreme court. Chandler v. People's Savings Bank et al., Margaret Poorman, Intervenor (Cal.), III, 523. 38. WHEN MATERIAL ISSUES ARE NOT DISPOSED of by the verdict of a jury or the findings of a court, a new trial must be had. West v. Girard (Cal.), III, 648. 39. NEW TRIAL-CONFLICT OF EVIDENCE.-Where the evidence is conflicting, an order granting a new trial on the ground that the verdict was excessive, not sustained by the evidence, and contrary to law and evidence, will not be interfered with. Herzog v. Julien (Cal.), III, 525.

40. NEW TRIAL-CONFLICT OF EVIDENCE. -An order granting a new trial on the ground of insufficiency of evidence to justify the decision and judgment will not be disturbed in the absence of a manifest abuse of discretion, when there is a substantial conflict in the evidence upon the main issues. Nelson v. Floyd; Fraser v. Nelson et al. (Cal.), III, 144.

41. NEW TRIAL-CONFLICT OF EVIDENCE.-An order denying a motion for a new trial will not be reversed for insufficiency of the evidence to justify the verdict, when the evidence is conflicting. Salisbury et al. v. Brown (Cal.), III, 618.

42. AN ORDER DENYING MOTION FOR A NEW TRIAL will not be reversed where there is a material conflict in the evidence. Jack et al. v Saunders et al. (Cal.), III, 480. 43. AN ORDER GRANTING A NEW TRIAL WILL NOT BE DISTURBED when the evidence is conflicting. Reynolds v. Scott (Cal.), III, 291.

44. ORDER GRANTING DEFENDANT A NEW TRIAL affirmed. Heinlen v. Centerville etc. Ditch Company (Cal.), III, 436.

45. DIVORCE-NEW TRIAL OF PORTION OF ISSUES.-In an action for a divorce and a division of the community property, the lower court has power to order a new trial of the issues relating to the character and disposition of the property alone, if material error occurred in the trial of and affecting that branch of the case only, without ordering a retrial of all the issues presented by the pleadings. Lake v. Lake (Nev.), IV, 159.

See AMENDMENTS, 1; APPEAL, 11, 76; BILL OF EXCEPTIONS, 5, 6; FINDINGS, 14, 33; JUDGMENT, 25, 26; SUPERSEDEAS.

NONSUIT.

1. A NONSUIT MAY BE GRANTED AFTER THE EVIDENCE ON BOTH SIDES HAS BEEN HEARD, in a case where, if the motion for the same had been denied and a verdict

found for the plaintiff, it would have been set aside as not supported by the evidence. Such practice, however, should be rarely resorted to, especially where the plaintiff has introduced evidence in support of all the averments of his complaint, and the materiality of establishing a further fact only appeared after the defendant had made out his affirmative defense. Vanderford v. Foster (Cal.), I, 857.

NOTARIAL PROTEST.
See EVIDENCE, 43.

NOTICE.

1. NOTICE OF PRIOR EQUITY.-A purchaser of real property for a valuable consideration is not affected by notice of a prior adverse equity received from a stranger or person not interested in the property; nor will mere rumors or hearsay concerning such equity, and communicated by such person, be sufficient to put him on inquiry and charge him with knowledge of the facts that he might have thereby learned. Parkhurst v. Hosford (U. S. Cir. Ct., Or.), IV, 311.

NOTICE OF APPEAL.

See APPEALS.

NOTICE OF LOSS.

See INSURANCE.

NUISANCE.

1. PUBLIC AND PRIVATE NUISANCE FROM MINING DEBRIS.-The Yuba river rises in the Sierra Nevada mountains, and after flowing in a westerly direction about twelve miles across the plain after leaving the foot-hills, joins the Feather. At the junction, within the angle of these two rivers, is situated the city of Marysville. The Feather thence runs about thirty miles and empties into the Sacramento. These three rivers were originally navigable for steamboats and other vessels for more than one hundred and fifty miles from the ocean, as least as far as Marysville-the Sacramento being navigable for the largest-sized steamers. The defendants have for several years been and they are still engaged in hydraulic mining, to a very great extent, in the Sierra Nevada mountains, and have discharged and they are discharg ing their mining debris-rocks, pebbles, gravel, and sand-to a very large amount, into the head waters of the Yuba, whence it is carried down, by the ordinary current and by floods, into the lower portions of that stream, and into the Feather and the Sacramento. The debris thus discharged has produced the following effects: It has filled up the natual channel of the Yuba above the level of its banks and of the surrounding country, and also of the Feather below the mouth of the Yuba, to the depth of fifteen feet or more. It has buried with sand and gravel and destroyed all the farms of the riparian owners on either side of the Yuba, over a space two miles wide and twelve miles long. It is only restrained from working a similar destruction to a much larger extent of farming country on both sides of these rivers, and from in like manner destroying or injuring the city of Marysville, by means of a system of levees, erected at great public expense by the property owners of the county and inhabitants of the city, which levees continually and yearly require to be enlarged and strengthened to keep pace with the increase in the mass of debris thus sent down, at a great annual cost, defrayed by means of special taxation. It has polluted the naturally clear water of these streams so as to render them wholly unfit to be used for any domestic or agricultural purposes by the adjacent proprietors. It has filled to a large extent, and is filling up the bed and narrowing the channels of these rivers, and the navigable bays into which they flow, thereby lessening and injuring their navigability, and impeding and endangering their navigation. All these effects have been constantly increasing during the past few years, and their still further increase is threatened by the continuance of the defendants' said mining operations: Held, that these acts, unless authorized by some law, constitute a public and private nuisance, destructive, continuous, increasing, and threatening to continue, increase, and be still more destructive. Woodruff v. North Bloomfield Gravel Min. Co. (U. S. Cir. Ct., Cal.), I, 183.