11. But an allegation that the river flows partly around and " partly through" complainant's land does. Green v. Nunnemacher et al., 708. OFFICE AND OFFICER. See CONFEDERATE STATES, 5; EVIDENCE, 5; MANDAMUS, 3; MUNICIPAL CORPORATION, 9, 11, 24.
1. The appointment by county commissioners of a clerk for more than one year is in excess of their authority. Koontz v. Franklin County, 526.
2. The appointment of a public officer and the services rendered by him are not in the nature of a contract. Id.
3. There can be no contract for the permanence of a salary. Id.
See NAVIGABLE WATERS, 1, 2.
PARDON. See CONSTITUTIONAL LAW, 44, 45, 46.
PARENT AND CHILD. See ASSUMPSIT, 2; RAILROAD, 6; WILL, 1, 2. 1. A child adopted under the act regulating the adoption of heirs, approved March 2d 1855, is entitled to inherit from the adopting parent as his heir in the degree of a child. Barnhizel v. Ferrel, 677.
2. By the adoption, he has the rights of a child of the adopting parent, without being his child in fact. His identity is not changed. Id.
3. Under the law, a married man may adopt a child without his wife join- ing in the petition, and the child may have an adopting father without an adopting mother, with the right of inheritance from one and not from the other. Id.
4. The rights of the lawful children of the adopting parent and the adopted child are not changed or affected by the adoption. No right is given them to inherit from or through each other. They are not only not brothers and sisters, but they have no rights as such. Id.
5. By consenting to the adoption, the real mother consents that the adopt- ing father shall occupy the position of a father to the child, and that she will occupy that of a mother. She does not surrender her maternal rights, or her rights of inheritance. Id.
6. On the death of the adopting parent the adopted child inherits from him, and on the death of the child his real mother will inherit the property so de- scending, to the exclusion of the children of the adopting parent. Id. PARSONAGE. See TAXATION, 17.
PARTITION. See EQUITY, 8.
PARTNERSHIP. See BILLS AND NOTES, 47; STATUTE OF FRAUDS, 7; IN- SURANCE, 23, 26; WITNESS, 7.
1. The joining of two or more persons in a single adventure does not con- stitute them copartners. Hurley v. Walton, Adm'r, 59.
2. A creditor who agrees to accept the several notes of the partners in pay- ment of their share of a partnership debt, will be bound thereby, and cannot maintain a suit against a partner who has paid his note. Maxwell v. Day, 59. 3. Taking a note with or without security from one of several joint debtors for a pre-existing debt, is a payment when so agreed. Id.
4. Where one partner on dissolution gives his note to the other for his share, the latter agreeing to be responsible to a certain creditor, in a suit on the note the partner may plead as a set-off that the debt agreed to be paid is not paid and he is still responsible. Mullendore v. Scott, 60.
5. An answer of set-off is not demurrable because it does not answer the entire complaint. Id.
6. The appropriation of firm property by one member of the partnership for his own debt is presumed to be fraudulent as against the others. Corwin v. Suydam, 125.
7. Such presumption may be rebutted. Id.
8. The receipt of part of the profits of a business is not conclusive evi- dence of partnership. Eastman v. Clark, 125.
9. The question of such a party's liability is whether he is a principal, and whether he is estopped to deny that he is a principal.
10. To enable one partner to pay his individual debt with partnership property, the consent of the other is necessary. Todd v. Lorah, 198.
11. Such consent may be inferred from the partner's knowledge and silence, when he ought to speak. Todd v. Lorah, 198.
12. In a suit by one partner against the other for the amount agreed to be paid by the latter on a dissolution, the defendant cannot set up as a defence the false representations of the plaintiff as to value of stock and credits, unless he shows that he relied upon such representations, and made the agree- ment on the faith thereof. Van Trott v. Weisse, 255.
13. A party who seeks to rescind an entire contract for fraud of the other, must offer to return whatever he has received. Id.
14. Where S. and H. entered into business October 1st 1871, to continue until April 1st 1875, unless at expiration of eighteen months the business did not pay, when S., who furnished all the capital, might terminate it; if the capital is all lost by August 1872, S. may terminate the partnership, paying H. wages until April 1st 1873. Hill v. Smalley, 261.
15. A partner is a trustee, and the same rules and tests are to be applied in determining his liability to his copartners as are applied to other trustees. Pomeroy v. Benton, 306.
16. If a partner secretly uses the partnership funds in outside operations, the profits are the property of the firm, and the latter are entitled to an account and payment. Id.
17. Where a party is in a position of trust and confidence, and therefore under obligation to disclose all material facts, his representations of facts as true without an examination whether the statement contains the whole truth, is as much a breach of trust as a wilful falsehood. In such a case equity treats omission as a fraud in itself. Id.
18. Two persons, who as managers of a "brewing company's" business, give notes in their own name, contract debts, have the entire control of the business, and receive for their services 5 per cent. commissions on all sales, are clearly partners. Heise v. Barth, 398.
19. The death of a partner is ipso facto a dissolution of the partnership. Nelson v. Hayner, 587.
20. In equity the surviving partners are treated as trustees of the represen- tatives of the deceased.
21. If they do not account in a reasonable time, chancery will grant an in- junction and appoint a receiver. Id.
22. A court of equity will not dissolve a partnership for every act of mis- conduct of a partner. Cash v. Earnshaw, 587.
23. A clear case of positive and meditated abuse must be made out. Id. 24. Loss occurring through mere error of judgment is not sufficient cause to dissolve. Id.
25. The presumption is that a note given by a member of a firm in the firm name is for partnership purposes. Carrier et al. v. Cameron, 588.
26. The burden of proof is on the partnership to show the contrary. Id. 27. It is competent for the partnership to show that a note of the firm was fraudulent in its inception as against the firm, and that the payee not only knew it but was party to the fraud. Id.
28. The member of a firm to whom partnership funds are intrusted, which he invests in another partnership without his copartners' consent, is liable to account to the members of the old firm for money converted to his own use. Reis v. Hellman, 647.
29. One partner cannot apply partnership funds to the payment of his pri- vate debts, without his partners' consent. Caldwell v. Scott and Trustee, 648. 30. It makes no difference whether the creditor knew it was partnership funds or not. Id.
31 Although one partner release all his interest in the assets to the other, the priority of partnership creditors in such assets still continues. Id.
32. Real estate purchased with partnership funds for partnership business, is partnership property. Little v. Snedicor, 709.
33. Where the title is in a deceased partner the heirs will be treated as trustees for the surviving partner. Id.
34. A bill filed for an account and settlement of partnership affairs, pray-
ing that land be decreed partnership assets, should set forth the contract of partnership, and the contract of purchase of the land. Little v. Snedicor, 709. 35. A payment to one partner in merchandise though after dissolution of the firm, is good, if the party did not know of the dissolution. Kenney v.
36. The purchase of merchandise by one partner, being within the scope of the business of the firm, the payment to him was in fulfilment of the contract, Id.
37. The misapplication of the payment would not render it invalid.
38. A delivery to one partner in good faith is a delivery to both, each hav- ing authority to receive it. Id.
39. A person dealing with a firm must have notice of its dissolution in order to avoid his transactions with one partner after dissolution. Id.
40. A letter sent by mail is not sufficient without evidence of its receipt. Id.
41. The rule that letters properly directed and sent are evidence of dis- honor, &c., of negotiable paper, is restricted to commercial paper. Id.
42. The rights and liabilities of a deceased partner devolve upon the sur- viving partner. Hanna v. Wray, 760.
43. In a settlement with the representatives of the deceased partner, the survivor is entitled to credit for a judgment for a firm debt, recovered against him. Id.
1. A division wall may become a party-wall by agreement, either actual or presumed; and although such wall may have been built exclusively upon the land of one, if it has been used and enjoyed in common by the owners of both houses for a period of twenty years, the law will presume, in the absence of evidence showing that such use and enjoyment was permissive, that the wall is a party-wall. In such cases the law presumes an agreement between the adjacent owners, that the wall shall be held and enjoyed as the common property of both. Brown v. Werner, 354.
2. An action was brought to recover damages for injuries done to the plain- tiff's house by the careless and negligent manner in which the house of the defendant, next adjoining, was improved, and for the direct losses consequent upon such injuries, sustained by the plaintiff in his trade and business. Held, That the plaintiff was entitled to recover such damages as would be sufficient to reinstate the wall, and the house in as good condition as they were prior to the injury, aud to compensate him for the loss consequent upon the interruption of his business. Id.
PASSENGER. See RAILROAD, 15.
1. Railroad companies are liable for injuries inflicted by their servants upon passengers. Hanson v. European & N. A. Railroad Co., 197.
2. If the servant is first assaulted, he may use sufficient force to overcome opposition, but the resistance being ended he cannot pursue and punish the wrongdoer. Id.
3. Disobedience of the rules, will justify the refusal to carry further, but not the maltreating of a passenger. Id.
4. A passenger who buys a ticket from one point to another is not entitled to get off at an intermediate point, and continue his journey at another time. Vankirk v. Pennsylvania Railroad, 462.
5. Conductor has no right to take up the ticket and then put him off, when he offers to pay if the ticket is retained. Id.
6. By denying his right to ride he waives all right to the ticket.
7. Declarations of the ticket agent made after selling the ticket, are admis- sible as evidence of passenger's good faith in claiming right to ride. Id.
PASTOR. See INJUNCTION, 5.
PATENT. See BILLS AND NOTES, 12.
PAYMENT. See BILLS AND NOTES, 21, 22; PARTNERSHIP, 3, 35, 36, 37; PLEADING, 11; SURETY, 2.
1. When a debtor delivers money to be transmitted to his creditor, in
accordance with authority given him so to do by his creditor, and the money is lost upon the way, it is the loss of the creditor. Carrier v. Continental Life Ins. Co., 169.
2. The plaintiff was authorized to send money to the defendants by express, and there were three express-carriers between the residence of the plaintiff and the place of business of the defendants in this state; the plaintiff sent the money for the last premium due upon his life-insurance policy by one of these expressmen, who embezzled the money and ran away. Held, that this was a sufficient payment of this premium to the defendants. Id. PHOTOGRAPH. See EVIDENCE, 17, 18, 30.
A patient who neglects to obey the reasonable instructions of his physician and thereby contributes to an injury, cannot recover therefor. Geeselman v. Scott, 585.
PIRACY BY MEMORIZATION, 207.
See ESTOPPEL, 1; HIGHWAY, 4; INTOXICATING LIQUORS, 2; PARTNERSHIP, 5.
1. Where two or more persons claim in different rights but for the same cause of action they may join in a suit. Upington, &c., v. Oviatt, Treasurer,
2. In a suit by a feme covert without joining her husband, the declaration should set forth the circumstances giving her the right to sue alone. Dutton
et al. v. Rice et al., 126.
3. The burden of alleging the facts necessary to entitle a feme covert to sue alone, should be on her. Id.
4. One who has contracted with an administrator cannot when sued plead ne unques administrator. Conway v. Armington, 391.
5. A plea puis darrein continuance, after a plea in bar, is a waiver of the latter. True v. Huntoon, 399.
6. But such plea may be properly pleaded with the general issue. Id. 7. That two pleas pleaded together are repugnant to each other, is no ob- jection to either of them. Id.
8. In an action on a policy of insurance where there is no denial of the execution of the policy it need not be proved. Clay Fire Ins. Co. v. Huron Salt Manufacturing Co., 460.
9. It is not allowable under a plea of nul tiel record to prove that an at- torney had no authority to appear for the defendant. Hill v. Mendenhall, 524. 10. The plea of "nil debit," to a sealed instrument is bad on general de- murrer. Brubaker's Adm'r v. Taylor, 524.
11. A long time having elapsed from the maturity of a sealed note, though not sufficient to raise the presumption of payment in law, circumstances may be submitted to the jury from which payment may be presumed. Id.
12. A technical variance in an immaterial matter only becomes of conse- quence when the pleader attempts to declare on a contract in haec verba. Preston v. Dunham, 709.
13. A note payable by the 1st of November, may be properly declared on as payable on the 1st of November.
The Act of April 12th 1867, providing for the appointment by the governor, of police officers for the protection of persons in the mining regions, is con- stitutional. Northumberland County v. Zimmerman, 125.
1. A judgment recovered against tenant for life, who has power to consent to sale of premises, does not extinguish the power. Leggett v. Doremus, 325. 2. Lien of judgment is subject to the power. Id.
3. The power to consent, is not extinguished by an absolute alienation of the life estate. ld.
4. Grantee, under the power, takes from the party creating the power, and not from the party executing. Leggett v. Doremus, 325.
5. Donee of power cannot defeat any interest which he has granted by virtue of his estate. Id.
PRACTICE. See CONFEDERATE STATES, 9; EVIDENCE, 10, 19.
1. The withdrawal of a general appearance entered by an attorney, will not prejudice any rights acquired by the plaintiff. Creighton v. Kerr, 115. 2. A party to a suit in chancery who resides in another state and is attend- ig before a master as a witness, is privileged from the service of a summons. Dungan v. Miller, 128.
3. Where plaintiff contracted to carry coal, suit for freight should be in his name alone, though another was joint owner of the barge in which it was carried. Powelton Coal v. McShain, 196.
4. General appearance of defendant is a waiver of all objections to the form of the process and the service. Clifford v. Overseer of the Poor, 261.
5. Before a superior court can interfere on certiorari with a matter in the discretion of the court below, it must be clearly shown that there has been an illegal exercise of the discretion. Id.
6. The Supreme Court in considering whether a Circuit Court erred in refusing to remand a case to a state court, will pay no attention to the cer- tificate of the clerk that certain things "were proved," or "admitted," unless a bill of exceptions is taken. Knapp v. Railroad Co., 261.
7. The Act of March 2d 1867, for removal of cases, does not change the settled rules as to who is plaintiff or defendant. Id.
8. Objections to defects in the taking of a deposition must be made at time of taking, or they will not be sustained. Doane v. Glenn, 462.
9. If meant to be insisted on must be noted at the time, or on motion to suppress. ld.
10. A motion to set aside a verdict for the misconduct of a juror, and a motion for a new trial for errors in the rulings of the court, can be filed in the Superior Court at the same time, and can be reserved together for the advice of this court. Tomlinson v. Town of Derby, 543.
11. Where a juror has conversed with a person not of the panel, respecting the case on trial, it is sufficient cause for setting aside the verdict, unless it appears that the successful party in the suit has not been benefited or the defeated party injured, by the fact of the conversation. Id.
12. Where a juror allowed such a conversation, in which it was stated to him that if the plaintiff should recover five thousand dollars damages he would have nothing left after paying his expenses, in which the juror ex- pressed his concurrence, it was held, after a verdict for the plaintiff, that the effect of the conversation was presumably to increase the damages allowed, and that the verdict ought to be set aside. Id.
13 It is not necessary that the court should order the parties called before taking the verdict of the jury. Merwin v. Wheeler, 601.
14. The surname of the attorney to a complaint is sufficient. Cornelius, 647.
15. The court is presumed to know the attorneys practising before it. Id. 16. Where an answer is filed containing a general denial, and also other paragraphs setting up affirmative matter, which could be introduced under the general denial, to which demurrers are filed and sustained, and the cause is then tried on the issues of fact formed by the general denial, resulting in a finding and judgment for the plaintiff'; on appeal to the Supreme Court, the parties by agreement, in writing, endorsed upon the transcript, may agree that the general denial shall be considered withdrawn and the case decided upon the ruling of the court below, upon the demurrers to the paragraphs setting up affirmative matter. In such case the Supreme Court will decide the case as if the general denial had not been filed in the court below. Barnhizel v. Ferrel, 678
17. Transactions which are not in extinguishment of the cause of action may be given in evidence under the general issue. James v. Aikin, 760.
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