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certain and separate the amount included in the worn and weakened condition of the
the gross damages for defendant's wrongful flange which broke, the speed with which

acts, the judgment must be reversed.-Id. the locomotive was going around the curve
22. In an action to recover damages for injuries

when the flange broke was dangerous and
alleged to have been caused by defendant's

negligent.” Held, The question then was, was

the wheel so much worn as to render its use
negligence, the plaintiff is bound to show

in the manner and under the circumstances
that the injuries were attributable to such

in which it was used at the time of the acci.
negligence: it is not sufficient to show that

dent consistent with the care due from the
he was injured without his fault, by the
movement of defendant's cars while plaintiff

defendant. The presumption raised by the
was attempting to get on them.Henry v.

breaking of the fange is somewhat repelled
The S. I. R. Co., 430.

by proof of a flaw in the flange at the point

of fracture.Brown v. Sharpe, 559.
23. It is not enough to make out a case of negli-

gence, to suggest that additional precautions 30. To sustain a recovery in such a case it
would have prevented the accident, but the

should be found us a fact that notwithstanding
question is, whether a prudent person, under

the flaw the wear of the wheel which render-
the circumstances, might be reasonably ex-

ed the use of it imprudent was an efficient
pected to foresee that the accident in question

cause of the accident, and that it would not
might occur. -Loftus v. Union Ferry Co., 448. have happened without the operation there-

of.-Id.
24. In an action for damages on account of de-

fendant's negligence, while it is incumbent 31, Where the flaw is latent and indiscoverable
on the plaintiff to show his own freedom by any known test, the defendant cannot be
from negligence contributing to the accident,

held liable because he did not discover it. -
it is sufficient if the inference of his freedom Id.
from such negligence can be drawn from all 32. Plaintiff was injured by reason of his horse
the testimony of both parties.—Glendenning becoming frightened at a pile of stones by
v. Sharpe, 457.

the side of the road, which had been placed

there a week before for the purpose of re-
25. In the absence of such evidence a nonsuit
should be granted, for the presumption that

pairing a bridge. Held, That if the stones
every one will take care of himself from re-

had a tendency to frighten horses and were of
gard to his own life and safety cannot take

a dangerous character, although not techni.
the place of proof.-Id.

cally a defect or obstruction in the highway,

defendant was liable for damages caused to
26. While the crossing of a railroad without travelers thereby after due notice and
looking to see whether a train is approaching

neglect to remove them.--Eggleston v. The
or not is ordinarily evidence, and in some cases President, &c., of the Columbia Turnpike,
is conclusive evidence of negligence, yet the

561.
rule is not an inflexible one nor applicable in 33. The secretary and treasurer of the company
all cases. Regard must be had to the age of

is a proper person on whom to serve such no-
the person killed or injured, as the same

tice, and a notice served four or five days
degree of circumspection is not required by

before an accident is sufficient.-Id.
an insant, even though he be sui juris, as of
an adult.—Powell v. The N. Y. C. & H. R. 34. H., an officer of the company, having testi.
RR. Co., 503.

fied that he received the notice about the time

of the accident, one P. testified that he gave
27. Evidence sufficient to submit to the jury on
the question as to whether the place of acci-

the notice four or five days before. P.'s

wife testified that P. had no conversation
dent was a public crossing:-Id.

with H. on the day of the accident. She
28. There was a conflict of evidence as to was then asked if on that day P. told the

whether the usual cautionary signals were toll-gate keeper that he gave H. notice a
given. Held, Independent of this question, the week before. Held, That the question was
fact that the defendant omitted all precau- incompetent.-Id.
tions, such as the abatement of speed, attend.
ance of signal men and the shutting off travel See Ferries; MASTER AND SERVANT; MUNICI-
while the train was passing, was evidence

PAL CORPORATIONS, 2; NatioNAL BANKS, 2;
sufficient to submit the question of their peg-

RAILROAD COMPANIES, 9, 15, 16; REFERENCE,
ligence to the jury.-Id.

22; Tort, 3.
29. In an action brought for damages for an in-

NEGOTIABLE PAPER.
jury suffered by plaintiff by the derailment
of defendant's train, the referee did not find 1. W. endorsed three notes made by W. & R.
any negligent act on defendant's part in the B. for the accommodation of the makers to
construction of the cur of the track, or in take up notes previously endorsed by W.,
the speed of the locomotive running around and with the understanding that they were
it, but rested his decision, which was in to be used exclusively for that purpose. Two
favor of the plaintiff, on the finding, “that of the notes amounting to $4,500 were dis-
in view of the sharpness of the curve, and of counted by plaintiff, and $3,600 of the pro-
ceeds used to take up notes of the B.'s, in- submitted to the jury.-Nickerson et al. v.
dorsed by one J., and the other $1,000 to Ruger et al., 329.
take up a past-due note indorsed by W. The See AgenCY, 6, 7; ASSIGNMENT, 2 ; BANKRUPTCY,
other note for $2,000 was discounted by

7; Bona Fide HOLDER; EviDENCE, 11 ; FRAUD,
plaintiff, and the proceeds credited to the

6; JURISDICTION, 3; PARTNERSHIP, 2; PLEAD-
B.'s account Oct. 28. Plaintiff had notice

ING, 20; PRACTICE, 4; WARRANTY, 1.
when the last note was left with it that the
proceeds were to be used to take up W.'s
paper.
On Nov. 3, the B.'s drew a check on

NEW TRIAL.
plaintiff for $2,731.62, payable to “notes or See County Court, 3; PRACTICE, 2, 6, 17;
bearer," but no money thereon was paid to

SALE, 2.
bearer. At that time plaintiff held no paper
of the B.'s, except a note for $2,400 which

NEW YORK CITY.
fell duc Oct. 12, and had been protested. In
an action on said note, Held, That in the ab- 1. The power to order the construction of
sence of evidence of any right in plaintiff to sewers and to carry on the work of construc.
make a different application, or of any dif- tion, conferred on the Department of Public
ferent application in fact, the presumption is Works by the Charter of 1870, has not been
that the note was paid by the check of Nov. divested by the Charter of 1873.-In re peti-
3.- The Nat. Bk. of Gloversville v. Wells et tion of De Peyster, 171.
al., 23.

2. An action may be sustained by the Mayor,
2. When a note is payable at a bank an entire &c., of the City of New York to require the

failure to present it for payment does not dis- inspector of weights and measures in said
charge the maker. If the bank fails with the city to account for percentages and fees re-
funds to pay the note in its hands, this is no ceived by him as such officer, as under sec.
defense to the note.Indig v. The Nat. City 96 of chap. 336 of Laws of 1873 such fees be-
Bk., 44.

long to the city, and it is no answer to such
8. Where a purchaser of negotiable paper.

action that no salary has been attached to

euch office. The statute, supra, is applica-
even for full value, has notice of facts which

ble, irrespective of the question as to whether
put him upon inquiry, he is bound to make

a fixed salary has been attached to the office,
such inquiry, or failing so to do, his rights

and provision is made by the statute, supra,
are suluject to the effect of such facts as in-

for requiring a salary to be fixed thereto.
quiry would have developed. Von Schoon-

- The Mayor, &c., of N. Y. v. Kent, 316.
hoven v. Curley et al., 126.

3. By resolution of the board of health, adopted
4. Every person is presumed to know the exist-

in 1871, the office of engineer to the board
ence and contents of the general statutes of

was made an hunorary one, and it was pro-
the United States.-Id.

vided that no salary should be attached to it.
6. In order to sustain a defense in an action on

Plaintiff' was notified, and replied, expressing
a check that the same was without consider- his appreciation at being retained in office.
ation, the defendant must affirmatively estab-

In an action for services performed in 1871,
lish a want of consideration.-Raubitschek v. 2, 3, Held, That the action could not be
Blank, 170.

maintained; that there could be no right to

compensation, it having been expressly de-
6. Defendant and one H. verbally agreed to

clared, and assented to, that the services
exchange real estate, and defendant gave to

rendered should be honorary.--Haswell v.
H. a check as part payment, and received a The Mayor, &c., of N. Y., 338.
receipt therefor. In an action on the check
defendant testified that he did not know 4. The board audited plaintiff’s bill for services

for the year 1872, and directed its payment.
where the receipt was, and that he believed
it stated that the check was received on ac-

Held, That this was a mere gratuity, without
count of an exchange of property, mentioning

authority, and did not constitute the legal
it, and also the conditions of the exchange.

auditing of a bona fide debt against the board
Held, That the receipt was a sufficient con-

or the city, and did not operate as a rescission
sideration for the check; that the two must

of the resolution, or create a new liability.

-Id.
be read together, and make out a valid con-
tract between the parties.-Id.

8. The share of one T. in the proceeds of a sale
7. Plaintiff beld a check as an assignee of H.,

on partition were deposited to his credit
who was dead. Held, That defendant was

with the city chamberlain, who paid the
incompetent to testify to any personal trans-

money to other parties, and transferred mort-
action between himself and H.-Id.

gages held for such parties to T. The mort-

gaged premises, having subsequently depre-
8. In an action upon a promissory note by the ciated in value, were bid in by the chamber-

endorsees against the makers, where there lain on foreclosure for the amount of the ag.
are several equitable defenses set up on the sessment thereon. Held, That no remedy
trial, the defendants are properly allowed to for the loss existed against the chamberlain.
show their equities and have the whole case - Chesterman et al. v. Eyland et al., 416.

See ASSESSMENTS, 3, 4, 8, 9; CONSTITUTIONAL to payment of such lien in the inverse order

LAW, 2; PUBLIC OFFICE, 1, 2; QUO WARRANTO; of alienation.—The Nat. Saving Soc. of D. C.
REMOVAL, 1.

v. Creswell et al., 441.
NUISANCE.

See MORTGAGE, 22.
1. The keeping or manufacturing of gunpowder

OYSTERS.
or fireworks does not necessarily constitute a
nuisance per se ; that depends on the locality, 1. Any citizen has the right to acquire
the quantity, and the surrounding circum-

property in oysters which he has planted
stances, and not entirely upon the degree of

upon a bed distinctly designated by stakes,
care used.—Heeg v. Licht, 169.

and where no oysters were growing at the

time. This right of property rests upon the
2. An owner of real property is liable for a pri. same principle which governs that in fere

vate injury caused by a nuisance thereon, noturce which has been caught and re-
although the premises were occupied by his claimed.-McCarty et al. v. Holman et al.,
tenant at the time of the injury, provided 601.
the nuisance existed at the time of the de-
mise. — Wenzlich v. McCotter, 499.

2. It is a misdemeanor to take and carry away

oysters so planted. Id.
3. Anything which detracts from the safety of

travelers, upon a highway or street, is a 3. The same right of property extends to and
nuisance.--Id.

embraces the offspring of the parent oyster so

planted, which remain in the bed so desig-
4. No question of negligence is involved in a pated.-Id.

case brought for damages for a private per-

sonal injury resulting from a nuisance.- Id. 4. Defendants justified a claimed conversion of
8. TI negligence of one maintaining or permit-

property by attempting to show that the
ting the nuisance does not excuse another

ground where the conversion took place was
who created the same. Both may be held

a common oyster bed before it was acquired
jointly liable.— Id.

by plaintiffs. Held, That a question to one of

defendants' witnesses, whether he had ever
6. Water flowed into a pipe fixed by defendant so got oysters on that ground before a certain

as to discharge the same on the sidewalk time, but which was not limited in scope to
before his house, where, congealing, it caused a period prior to the planting of the beds by
a nuisance. Held, That the fact that it plaintiff, was properly excluded.-Id.
flowed into the pipe from adjoining premises
is immaterial on the question of the owner

PARTIES.
of the pipe's liability for injuries to a third
person, caused by such person's slipping on See CoRPORATIONS, 20, 21, 23 ; CREDITORS BILL,
the ice on the sidewalk, resulting from the

2; DIVORCE, 3; INSOLVENCY, 4; MORTGAGE,
discharge from the pipe.—Id.

3, 12; PARTNERSHIP, 11 ; PLEADING, 19.
See TORT, 3, 4.

PARTITION.
ORDER OF ARREST.

1. A judgment in an action for the partition of

such property which takes no notice of the
See ARREST; TRESPASS, 1.

rights of unborn children is not a bar to the

contingent interest of persons not in esse
ORDER OF SALE.

when it is rendered.-Monarque v. Monarque
1. One S. accepted a devise of land charged

et al., 118.
with payment of a legacy, and afterwards See RECEIVER, 2.
conveyed the same to W., subject to the
legacy. W. reconveyed a part to S., and the

PARTNERSHIP.
balance at different times to other parties.
On foreclosure of the lien of the legacy the 1. Where one of two or more partners under-
lands were sold in the inverse order of aliena- takes by an incomplete and executory con-
tion by W., enough being realized to satisfy tract to transfer his interest in the firm to
the judgment without selling that conveyed the others, such contract does not work a
to S. Held, no error; that the reconveyance dissolution of the partnership until executed,
by W. to S. constituted the land remaining and notice given to customers that such
in the hands of W. the primary fund for the partnership is dissolved, based only on the
payment of the legacy; and the fact that S. authority of such executory contract, will
was personally liable and W. was not, did not release such withdrawing partner from
not affect this equity.—Hopkins v. Wooley, his liability for debts of the firm contracted
417.

after the making of such contract and before

notice of the actual dissolution.-Pennock et
2. It is the prevailing doctrine in courts of
equity that real estate, subject to licn, which

al. v. White, 74.
has been alienated in parcels to several 2. Where a note is given in the firm name by
persons at different times, shall be subjected one partner for his private debt, or in a

transaction unconnected with the partnership recover for goods purchased by a, the decla-
business, and known to be so by the person rations of A are not admissible to establish
taking, the other partners are not bound un- that B was a partner, but for the purpose of
less they have assented.—The Union Nat. establishing that the goods were sold in the
Bank v. Underhill, 106.

faith that he was such copartner, and in re-
3. The person so taking the note is not a bona

liance on the acts and conduct of B tending
fide holder thereof.- Id.

to carry out the idea that he was a copartner.

Greenwood v. Sias, 400.
4. Where one person makes an agreement to
pay another for his services a certain

13. Where it appears that a party was held out

per-
centage on the profits of certain investments,

by his authority and consented to be a partner
with reference to which such services are to

with another, the presumption arises that he
be rendered, such agreement does not con-

was so held out to every customer and cred-

itor.-Id.
stitute the parties partners, as between them.
selves, or as to creditors.Butler v. Finck, 14. By an agreement between J. & L., who
163.

were partners, L. purchased J.'s interest at a
6. The members of a firm are not liable for the

valuation of the firm property, paying partly
individual acts or debts or torts of one of the

in cash and partly in notes. In the final ad.
members in no way connected with the part-

justment an account was taken of the capital
nership business.- Id.

each had put in, the interest chargeable to

and the amount drawn out by each partner.
6. Where the question as to whether under the In an action on the notes, Held, That the

circumstances a copartnership existed is de- referee was justified in finding that tho indi-
pendent upon inferences to be drawn, and is vidual accounts were embraced in the settle-
à matter of doubt, the question is one of fact ment; that this finding cast on L. the burden

for the jury upon proper instructions.-Id. of impeaching the settlement for fraud or
7. When a party advances money to another,

mistake.--Jagger v. Littlefield, 429.
and for the use of the money he is to share 15. At such settlement it was agreed that L.
in the profits of the transaction besides the should have sole charge of a suit brought by
interest upon the sum loaned, he cannot be the partners against one P., the costs and
held liable as a partner to third persons who judgment to be divided between them. Held,
deal with the borrower of the money.- that this was a settlement of their respective
Curry v. Fowler et al., 165.

liabilities in such suit, and took it out of the
8. Where one of two partners had sold the

partnership account, and that evidence of
firm property to his son, at a sale made in

payments by L. on such costs was inadmis-
fraud of the other,

sible.--Id.
Held, That evidence
tending to show the amount realized by the 16. The firm funds had been deposited in J.'s
vendee from the property was inadmissible individual account. Defendant offered to
in an action for an accounting between the show that such account was credited with
partners.—Flannagan v. Madden, 198.

firm funds not charged to J. on the firm
9. The use of a firm name not representing

books, by showing what other sources J. had
actual existing partners is illegal, except by

of realizing money from. Held, inadmis-
the remaining partners of a former firm who

sible as not sufficient to show a misappropri-
shall file a certificate with the county clerk

ation of the firm funds.-ld.
showing who the remaining partners are, &c. 17. A cause of action existing in favor of one
- Lunt et al. v. Lunt, 329.

partner for damages for breach of copartner-
10. A firm cannot enforce a contract made by ship articles, which has been set up as a coun-
them while using such illegal firm name.-

terclaim in an action by one of the partners
Id.

for an accounting, cannot properly be made

the subject matter of a subsequent suit for
11. One member of a firm may sell and trans-

damages against the other partners.—Coster
fer the personal property of the firm, and in

v. Llorens et al., 461.
doing so he acts on behalf of the firm, and
the transaction is in legal contemplation a 18. Where a firm is dissolved, and the assets
sale made by the firm. The deceit or fraud turned over to one of the partners upon the
practiced upon such member of the firm for understanding that he should be allowed to
the purpose of inducing such a sale is also, retain sufficient of the proceeds to pay what.
in legal contemplation, a fraud coinmittted ever he was justly entitled to in consequence
upon the firm and the injured parties to it,

of damages to which he was entitled for a
the members of the firm, may maintain their breach of the copartnership articles, an ac-
action for the injury, precisely as though the ceptance of the assets with this understand-
several members of the firm had participated ing limits such partner to compensation
in the sale, and in case one of the firm re-

therefrom.-Id.
fuses to join as plaintiff he may, under the 19. A contract between one of several partners
Code, be made a party defendant.-Prouty et
al. v. Whipple, 387.

and a third person, by which the latter is to

share in the profits and losses of the partner
12. In an action against A & B as partners, to with whom the contract is made in the firm
business, does not make such third person a said payment was made, and had no personal
partner in the firm, or liable for the partner- knowledge of the same. Held, That though
ship debts.—Burnett v. Snyder, 483.

such evidence is open to criticism as proof of

such a fact, yet as the witness testified posi.
See Bonds, 2; CONTRACT, 6; EstOPPEL, 6; RE-

tively as to the payment, and as there was no
PLEVIN, 6; VOLUNTARY ASSOCIATIONS, 3. evidence that the taxes were not paid, and as

he may have had knowledge of the payment,
PARTY WALLS.

notwithstanding the facts admitted on cross-
1, An old wall between two buildings, from

examination, the finding will not be dis-

turbed.— The Mutual Life Ins. Co. v. Hoyt,
long user, in the absence of evidence, will be

275.
deemed presumptively a party wall, either
by agreement to that effect, or from its be- See Banks, 1; Bonds, 1; CONTRACT, 9; LIFE
ing built upon the line for that purpose by INSURANCE, 12; NEGOTIABLE PAPER, 1.
the respective owners.-Schile v. Brokhahne,
149.

PERJURY.
2. While the owner of one of the buildings has 1. An indictment under 2 R. S., 682, § 8, for sub-

a right to replace a party wall which has ornation of perjury, averred that the prison-
become so dilapidated as to be unsafe, and in er, by the offer of a sum of money, at-
so doing is not liable for damages, yet he tempted unlawfully and corruptly to procure
will be liable if he interferes with it for his one W. to commit wilful and corrupt perjury
own benefit, as by raising it.--Id.

as to his sufficiency as surety on a bail bond.

Held, Sufficient.-Stratton v. The People, 260.
3. Plaintiff's business was interrupted by the

tearing down of the wall between the build. 2. It is not necessary for the people to prove
ings by defendant. Held, That plaintiff's all the averments of the indictment. It is
loss of profits could be allowed as damages, sufficient if enough of them are proven to
and that evidence of the business and profits make out the offense.-Id.
during the corresponding months of the
previous year was competent on that point.-

PLEADING.
Id.

1. An answer, in an action upon certain promis-
PATENT.

sory notes, which admits the making of the
1. Plaintiff, while working for defendant in 1862,

notes, and alleges that the notes were ex-
invented an improvement in hinges, and ap-

ecuted by defendants for the accommodation
plied for a patent. In January, 1863, plain-

of one D., who procured same to be dis-
tiff, in consideration of an agreement to pay

counted by plaintiff

, who had full knowledge
him a royalty on all hinges manufactured as

of all the facts, D, also giving to plaintiff at
long as the patent should run, assigned to

the same time a mortgage to secure their
the company said invention, and authorized

payment, which was ample security for such
the issue of letters patent to it. The assign-

payment, and that an action is now pending
ment was recorded, and a patent issued to

to foreclose such mortgage, and asks that the
the company in Dec., 1863." In an action for

suit on the notes be stayed until the termina-
royalties, defendant claimed that it was not

tion of the foreclosure suit, is not frivolous

so as to allow the court to strike out same
liable, as it was not organized until Aug.,
1863. Held, That whether this was the first

upon motion.— The Chatham Nat. Bk. v. Ship-
corporate organization, or a reorganization of
& former company, was immaterial ; that 2. A joint demurrer which is bad as to one of
having adopted and acted under the agree-

the parties is properly overruled.— Wheeler
ment under which the assignment was made,

v. Crosby et al., 72.
and enjoyed its benefits, it was bound
by it.-Bommer v. The Am. Spiral Spring Butt 3. In pleading a composition in bankruptcy
Hinge Mfg. Co., 470.

the answer must allege all the facts which

show that the court had jurisdiction of the
PAYMENT.

parties and of the subject matter.-Cromwell

v. Burr, 133.
1. A payment is voluntary only to the amount

which the party making it expresses a desire 4. Section 5119 of U. S. R. S., only applies to
to pay; where plaintiff knew the fare over a pleading a discharge, and does not apply to
ferry was in dispute, and was claimed by its composition proceedings.- Id.
lessee to be ten cents, and he gave the toll-
collector ten cents, demanding four cents 0. A moving affidavit for leave to amend the
change, such payment is voluntary only to

complaint, made by the attorney of the
the extent of six cents.-Edwards v. Abeel,

plaintiff

, which merely states that the depo-
84.

nent deems further amendment of the com-

plaint advisable, is insufficient to invoke ju-
2. A witness testified positively to the payment dicial discretion, and insufficient to support

of taxes by his principal, but on cross-exami. an order granting leave to amend.-Bewley v.
nation admitted that he was not present when The Equitable Life Ins. Co., 191.

man, 9.

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