NOTES OF RECENT CASES his brief in the case at bar, plaintiff's attorney called attention to the brief in the case against the owner of the carriage in Which he stated that he had come to the conclusion that this case was properly dismissed below. The court thereupon affirmed the decisio'n, saying, " Whether this conclusion is in any wise due to the fact that plain tiff was successful in recovering a judgment against the owner, or is the result entirely of a further examination of the authorities, is immaterial. It is sufficient for us to say that since the plaintiff in error and defendant in error are in accord that the decision of the trial court was right, it would not be fitting to disturb this unusual concord byreversing a judgment with which the parties themselves are satisfied." PRACTICE. (Lis Pendens, Parties.) la. — In order that pendency of one action shall be a bar to another between the same parties and involving the same subject matter, is it necessary that the same parties occupy the same position in the action as plaintiffs and defendants? In Van Vleck v. Anderson, 113 N. W. Rep. 853, the Su preme Court of Iowa says that although the general rule is that they must, there are exceptions. The object of that suit was the construction of a certain clause of a will, which the court said would have to be construed in a prior pending suit, instituted by defendants in the latter action against one of the plaintiffs in the latter action. The court refers to two classes of exceptions, and says that a pending action for partition by one co-tenant would be ground for abatement of a similar action instituted by another, and that separate actions
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to construe the same will ought not to be tolerated because the, latter one was brought by one who was a defendant, instead of plaintiff, in the earlier proceeding. PRACTICE. (Hew Trial.) Wash. — Whether the fact that plaintiff in a personal injury case allowed herself to give way to her feelings to such an extent as to cry and tremble in the presence of the jury, is ground for new trial, was passed upon in Connell v. Seattle R. & S. R. Co., 92 Pac. Rep. 377. The outburst occurred near the close of the trial, during the argument of defendant's counsel, and the court said that it was not improbable that her act was unavoidable, and probably caused by her nervous condition and the criticisms made by the attorney in his argument. The judgment of the trial court denying a new trial was affirmed STATUTES (Interpretation — Cigarettes) Wis. — Whether small cylindrical rolls consisting of cigar leaf tobacco, wrapped in other leaf tobacco are within the prohibition against the sale of cigarettes was considered in State v. Goodrich, 113 N. W. Rep. 388. Defendant was convicted of violating the anti -cigarette law and appealed to the Supreme Court, claiming that the articles sold were not cigarettes. The court refers to the definition of the word by leading lexicographers and its origin, application, and general use. While specifically refusing to hold that a cigarette could not possibly be produced without the use of the well known tissue paper, with tobacco rolled within, it held that the articles sold by defendant could not properly be considered as falling within the term and reversed the conviction.
