been of such a character, or of so long a standing, that the city must be presumed to have had notice of it. The city was bound to be vigilant in observing defects in the sidewalks, and in remedying them when they became observable to an officer exercising intelligent and reasonably vigilant supervision over them. The instructions numbered 1 and

2 in the foregoing statement are, we think, in accordance with the well-settled law relating to the liability of the city in actions like the present, and we think that they should have been given to the jury as asked. The city is not an insurer against injuries or accidents occurring on its sidewalks. Its liability is for negligence in not performing its duty to the public in not keeping them in suitable condition and repair. The evidence tended to show that the coal hole and cover had been properly constructed, and there was nothing in the evidence to indicate that the cover of the hole was unfastened, or that the city officers or authorities knew that it was unfastened prior to the accident. There was no evidence to indicate any defect, or tending to show that the cover was out of its socket for a sufficient length of time to have enabled the proper officers of the city to have discovered its condition, and replaced it, although the verdict finds that the cover was actually misplaced before the plaintiff stepped on it; nor is there any evidence to show that the city or any of its officers had reasonable cause to apprehend that it might become displaced by ordinary use. In respect to the question whether the city, its officers or agents, were guilty of negligence which was the proximate cause of the injury, the trial judge charged the jury, in substance, that: "If the sidewalk at the point in question was defective, and they found that the city, its officers and agents, knew, or ought to have known in the exercise of proper care, of the existence of such defective condition, then, in the absence of any evidence tending to show that any steps were ever taken to remedy that defect, they should answer the said interrogatory in the affirmative." This instruction was given without respect to the length of time the defect had existed, or its character, and was, we think, misleading. The trial judge left it to the jury upon the whole evidence to find whether or not the coal hole was in such a condition that the cover was liable to tip when stepped on at the time of the accident. He left it for the jury to determine the nature and character of the alleged defect which would serve to establish implied notice, without any instructions in point of law on that subject, but told the jury that they must be satisfied, from the evidence, to a reasonable certainty, that the defect had existed so long and so notoriously that the city would, in the exercise of proper care on the part of its officers or agents, have known of it, otherwise the question would have to be answered in the

negative. The defect in the sidewalk in the present instance was a secret one, not apparent to ordinary observation; and the nature and character of a defect, notice of which would be imputed to the city within the rule stated, was not pointed out as it should have been by the trial judge, so that the instruction as given really left the jury without any proper guide on the subject, and wholly failed to meet the just requirements of the case. In this respect the case of Duncan v. City of Philadelphia, 173 Pa. St. 550, 34 Atl. 235, is entirely in point. Besides, we think that it was not, and is not, the duty of a municipality such as the defendant city, as stated in the second instruction above requested, to examine covers to coal-hole openings such as the one in question here, to ascertain if the covers to the same are unfastened, unless there is something apparent on the surface, or otherwise brought to their attention, to lead its proper officers to believe that the same is loose, and likely to become misplaced. These requests were denied by the court, and nothing of a similar character or import was given in their stead. Upon the question of notice it seems that the rule is that the facts must be such as to lead to the inference that the proper officers of the town whose duty it is to attend to municipal affairs did actually know of the existence of the defect, or with proper diligence and care might have known it. Hanscom v. City of Boston, 141 Mass. 242, 246, 5 N. E. 251. In the case last cited the court said: "It has never yet been held to be the duty of the officers of the city to examine from time to time covers of coal holes which are properly constructed, and apparently secure, to see whether the occupants of the cellars under the coal holes keep the covers fastened on the inside. In all the decided cases under former statutes, if the defect had not existed for twenty-four hours, and the town officers had no actual notice or knowledge of it, or did not create it, it was left to the jury to find whether its officers, by proper diligence and care, might have known it, only when there was evidence that the defect was open and visible, so that it might be said to be, in a sense, notorious." "We think that, if the coal hole was properly constructed, and the cover was properly fitted, and was not apparently insecure, and the only defect, if any, was that it was left unfastened on the inside by the occupant of the cellar, and this was not known to the officers of the city, or apparent from the street, that the jury could not properly find, under existing statutes, that the city could have remedied the defect or prevented the injury by reasonable care and diligence." The trial judge, referring to the fact that the evidence showed that the cover rested by its own weight in the ring or socket, and that, as such things were made, they were not liable to fall through the sock

et if they were in their normal and proper condition, said to the jury, in substance, that there was evidence that they were sometimes raised, not merely in the use of them, but by the boys at play; that they had holes in them, which had formerly been occupied by plugs of glass, called "bullseyes"; that you could get hold of them, and lift them by means of these holes, the glass having been removed or lost; adding: "Your own common sense would teach you that, if the socket in which the lid was to lie was occupied in part by gravel, or coal, or by any such substance, that that would raise the lid, so that possibly it might be liable to tip sideways, and tilt; and might, although the place where it should have lain had been clean." There was no evidence produced that the socket or ring in which the lid or cover was to lie was occupied in any part by gravel, coal, or any other substance that would raise the lid, or render it liable to tip, as thus supposed; and there was no evidence before the jury to warrant the trial judge in suggesting any such matter as a ground of liability by which to charge the defendant. His observations in this respect amounted, in substance, to a permission or suggestion that the jury might conjecture and guess at a cause of action in this respect, in the absence of any evidence whatever to support it. The observations were misleading, and, in our judgment, so prejudicial to the rights of the defendant as to require a reversal of the judgment. Verdicts must be given upon competent evidence produced in court, and not upon mere loose conjecture or supposition. In view of the conclusion at which we have arrived, it is not necessary to consider whether the court erred in refusing to nonsuit the plaintiff on the motion of the defendant city, or in refusing to direct a verdict for the defendant city, inasmuch as upon another trial the evidence may be such as to present the case in these respects in quite a different light. By section 1339b, Sanb. & B. Ann. St., the course of procedure laid down in Papworth v. City of Milwaukee, 64 Wis. 389, 25 N. W. 431, has been changed, and the action is now brought in cases like the present against all wrongdoers in the first instance, without regard to the question whether they are all primarily liable; and after verdict the court is required to enter judgment against all the defendants against whom the verdict shall be found, but shall stay execution against the city, if not primarily liable, until execution against those who are primarily liable shall have been returned unsatisfied in whole or in part. The record fails to show that the appellant has been prejudiced in the least by the course pursued in the present case. For the reasons already stated, we think that the recovery in this case is erroneous, and that it must be reversed. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

STATE V. FRANKLIN et al. (Supreme Court of Iow 1. Oct. 29, 1897.) Appeal from district court, Monroe county; Robert Sloan, Judge.

PER CURIAM. This case is submitted upon an appeal by the defendants on a partial transcript, which shows as follows: That defendants were jointly indicted for the crime of murder in the second degree, to which charge they, on assignment duly made, pleaded not guilty; that their respective motions for a new trial were overruled, and, no legal cause appearing why judgment should not be pronounced against each of them, judgment that they each be imprisoned in the penitentiary at Ft. Madison, Iowa, at hard labor for the term of five years, and pay the costs, was entered against them severally. We find no error in the proceedings, as shown in the record before us, and the judgments of the district court are therefore affirmed.

STATE v. KELLY. (Supreme Court of Iowa. Oct. 30, 1897.) Appeal from district court, Polk county; S. F. Balliett, Judge.

PER CURIAM. This cause is submitted on a transcript, which only shows the plea of the defendant, the judgment entries of appeal, and service thereof, and appeal bond. From the showing thus made we find that the defendant was convicted of the crime of larceny, and adjudged to be imprisoned in the state penitentiary for the term of 10 months. The record submitted does not disclose any errors of which the appellant can justly complain, and the judgment of the district court is affirmed.

ACKERMAN v. CHICAGO, ST. PAUL, M. & O. RY. CO. (Supreme Court of Minnesota. Nov. 9, 1897.) Appeal from district court, Faribault county; M. J. Severance, Judge. Action by James B. Ackerman against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From an order in favor of plaintiff, defendant appeals. Affirmed. Thos. Wilson, L. K. Luce, and Lorin Cray, for appellant. John A. Lovely, for respondent.

PER CURIAM. This case is ruled by that of Ott v. Railway Co. (Minn.) 72 N. W. 833. The order appealed from is affirmed.

PER CURIAM. This case involves the same, and only the same, questions as the case of State v. Corcoran (decided at the present term) 72 N. W. 732, and is ruled by it. Order affirmed, and case remanded.

IOWA & D. LAND CO. v. BARNES COUNTY (two cases). (Supreme Court of North Dakota. Oct. 29, 1897.) Appeal from district court, Barnes county; Roderick Rose, Judge. Actions by the Iowa & Dakota Land Company against Barnes county. Judgments for defendant, and plaintiff appeals. Affirmed. Newman, Spalding & Phelps, for appellant. Edward Winterer, for respondent.

PER CURIAM. Following the decision of this court in Iowa & D. Land Co. v. Barnes Co. (decided at this term) 72 N. W. 1019, the judgment of the district court is affirmed. All the judges concurring.

BARTOW v. ROYAL INS. CO. OF LIVERPOOL, ENGLAND. (Supreme Court of South Dakota. Nov. 9, 1897.) Appeal from circuit court, Aurora county; D. Haney, Judge. Ac-| tion by J. D. Bartow against the Royal Insurance Company of Liverpool, England. Judgment for plaintiff. Defendant appeals. Reversed.

CORSON, P. J. The pleadings, proofs, and special verdict of the jury in this case were substantially the same as those in the case of Bartow v. Assurance Co., decided at the April, 1897, term of this court, and reported in 72 Ñ. W. 86. As this case presents the same questions decided in that case, and was submitted upon the same briefs, no further discussion of the questions involved seems to be necessary. Therefore, for the reasons stated in the decision in the former case, the judgment of the circuit court is reversed, and a new trial granted. HANEY, J., took no part in the decision.

CONRAD v. FIRE ASS'N OF PHILADELPHIA. (Supreme Court of Wisconsin. Sept. 28, 1897.) Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge. Action by W. S. Conrad against Thomas F. Dowling and the Fire Association of Philadelphia, garnishee. From judgment for plaintiff, garnishee appeals. Dismissed. Doolittle & Shoemaker, for appellant. Geo. C. & Fred A. Teall, for respondent. For the reasons given in the opinion in the case of Dowling v. Insurance Co., filed herewith (72 N. W. 229), the appeal in this case is dismissed.

CASSODAY, C. J.

ABANDONMENT.

Of application for change of venue, see “Venue.”
Of attached property, see "Attachment."
Of execution, see "Execution.'

Of land contract by vendee, see "Vendor and
Purchaser."

Of mining claim, see "Mines and Minerals."
Of possession, see "Adverse Possession."
Of railroad right of way, see "Railroads."

ABATEMENT.

Of liquor nuisance, see "Intoxicating Liquors."

ABATEMENT AND REVIVAL.

A plea in abatement of pendency of another ac-
tion is not available where the former action has
been discontinued before trial of the second.
Winner v. Kuehn (Wis.) 227.

ABSTRACTS.

On appeal, see "Appeal and Error."

ACCIDENT.

See "Negligence."

At railroad crossings, see "Railroads."
ACCOMPLICES.

Testimony of, see "Criminal Law."

ACCORD AND SATISFACTION.
See, also, "Compositions with Creditors";
"Compromise and Settlement"; "Release."
Where a judgment creditor accepts an amount
less than his claim, in satisfaction thereof, sup-
posing that the debtor was solvent, there was
sufficient consideration for the satisfaction,
though the estate was not insolvent.-In re Car-
ter's Estate (Minn.) 826; Rice v. London &
Northwest American Mortg. Co., Id.

ACCOUNT.

Interest on unsettled account, see "Interest."

ACCOUNTING.

See "Partnership."

ACCRETION.

See "Waters and Water Courses."

ACKNOWLEDGMENT.

Revival of liability on guardian's bond, see
"Limitation of Actions."

of surety's liability, see "Principal and
Surety."

ACTION.

See, also, "Abatement and Revival"; "Limita-
tion of Actions"; "Venue."
Against city, see "Municipal Corporations."

72 N.W.-72

directors of corporations, see "Corpora-
tions."

estates of decedents, see "Executors and
Administrators."

principal, see "Principal and Agent."
railroad companies, see "Railroads."
sheriff for failure to return execution, see
"Sheriffs and Constables."

surety, see "Principal and Surety."

By pledgee of mortgage, see "Pledges.'

By servant against master, see "Master and
Servant."

By vendee to recover purchase money, see
By wife against husband, see “Husband and
"Vendor and Purchaser."

Wife."

For breach of warranty, see "Sales."
For injury on highway, see "Highways."
For recovery of mortgaged chattels, see "As-
sumpsit, Action of."

Limitation of actions, see "Libel and Slander."
On guardian's bond, see "Guardian and Ward."
On insurance policy, see "Insurance."
On judgment, see "Judgment."
Particular actions, see "Assumpsit, Action of";
"Attachment"; "Divorce"; "Ejectment";
"False Imprisonment"; "Garnishment"; "Ha-
beas Corpus"; "Injunction"; "Money Receiv-
ed"; "Quieting Title"; "Quo Warranto";
"Specific Performance"; "Trespass"; "Tro-
ver and Conversion"; "Work and Labor."
To recover drainage assessment, see "Drains."
To set aside fraudulent conveyance, see "Fraud-
ulent Conveyances."

Transfer of actions, see "Removal of Causes."
Venue of, see "Venue."

An action for forcible entry and detainer, and
a suit to set aside a tax deed of the same land,
cannot be joined, especially where some of the
parties to one suit are not parties to the other,
and hence they cannot be consolidated.-Ho-
dowal v. Yearous (Iowa) 294; Yearous v. Ho-
dowal, Id.

Where a grantee promised to pay, as part of
the consideration of a conveyance, an existing
mortgage, the person to whom such payment was
to be made might sue on the promise in his own
name.-Morgan v. South Milwaukee Lake View
Co. (Wis.) 872.

In action against sheriff to recover legal fees,
plaintiff may join a cause of action for penalty
for taking illegal fees.-Phoenix Ins. Co. v. Mc-
Evony (Neb.) 956.

On dismissing an action on a contract for serv-
ices because of a failure to submit to arbitration,
as required by the contract, held, that a claim
for extra work performed under a provision of the
contract controlling such work would be also dis-
missed, although_arbitration of that claim was
not called for.-Weggner v. Greenstine (Mich.)
170.

See "Statutes."

ACTS.

ADJOINING LANDOWNERS.

The lateral support to which land is entitled
is that which it needs in its natural condition.-
Hemsworth v. Cushing (Mich.) 1108.

ADJOURNMENT.

Of foreclosure sale, see "Mortgages."