« ForrigeFortsett »
certain and separate the amount included in the worn and weakened condition of the
acts, the judgment must be reversed.-Id. the locomotive was going around the curve
when the flange broke was dangerous and
negligent.” Held, The question then was, was
the wheel so much worn as to render its use
in the manner and under the circumstances
in which it was used at the time of the acci.
dent consistent with the care due from the
defendant. The presumption raised by the
breaking of the fange is somewhat repelled
by proof of a flaw in the flange at the point
of fracture.—Brown v. Sharpe, 559.
gence, to suggest that additional precautions 30. To sustain a recovery in such a case it
should be found us a fact that notwithstanding
the flaw the wear of the wheel which render-
ed the use of it imprudent was an efficient
cause of the accident, and that it would not
fendant's negligence, while it is incumbent 31, Where the flaw is latent and indiscoverable
held liable because he did not discover it. -
the side of the road, which had been placed
there a week before for the purpose of re-
pairing a bridge. Held, That if the stones
had a tendency to frighten horses and were of
a dangerous character, although not techni.
cally a defect or obstruction in the highway,
defendant was liable for damages caused to
neglect to remove them.--Eggleston v. The
is a proper person on whom to serve such no-
tice, and a notice served four or five days
before an accident is sufficient.-Id.
fied that he received the notice about the time
of the accident, one P. testified that he gave
the notice four or five days before. P.'s
wife testified that P. had no conversation
with H. on the day of the accident. She
whether the usual cautionary signals were toll-gate keeper that he gave H. notice a
PAL CORPORATIONS, 2; NatioNAL BANKS, 2;
RAILROAD COMPANIES, 9, 15, 16; REFERENCE,
22; Tort, 3.
7; Bona Fide HOLDER; EviDENCE, 11 ; FRAUD,
6; JURISDICTION, 3; PARTNERSHIP, 2; PLEAD-
ING, 20; PRACTICE, 4; WARRANTY, 1.
NEW YORK CITY.
2. An action may be sustained by the Mayor,
failure to present it for payment does not dis- inspector of weights and measures in said
long to the city, and it is no answer to such
action that no salary has been attached to
euch office. The statute, supra, is applica-
ble, irrespective of the question as to whether
a fixed salary has been attached to the office,
and provision is made by the statute, supra,
for requiring a salary to be fixed thereto.
- The Mayor, &c., of N. Y. v. Kent, 316.
3. By resolution of the board of health, adopted
in 1871, the office of engineer to the board
was made an hunorary one, and it was pro-
vided that no salary should be attached to it.
Plaintiff' was notified, and replied, expressing
In an action for services performed in 1871,
maintained; that there could be no right to
compensation, it having been expressly de-
clared, and assented to, that the services
rendered should be honorary.--Haswell v.
for the year 1872, and directed its payment.
Held, That this was a mere gratuity, without
authority, and did not constitute the legal
auditing of a bona fide debt against the board
or the city, and did not operate as a rescission
of the resolution, or create a new liability.
8. The share of one T. in the proceeds of a sale
on partition were deposited to his credit
with the city chamberlain, who paid the
money to other parties, and transferred mort-
gages held for such parties to T. The mort-
gaged premises, having subsequently depre-
endorsees against the makers, where there lain on foreclosure for the amount of the ag.
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.
v. Creswell et al., 441.
See MORTGAGE, 22.
property in oysters which he has planted
upon a bed distinctly designated by stakes,
and where no oysters were growing at the
time. This right of property rests upon the
vate injury caused by a nuisance thereon, noturce which has been caught and re-
2. It is a misdemeanor to take and carry away
oysters so planted. Id.
travelers, upon a highway or street, is a 3. The same right of property extends to and
embraces the offspring of the parent oyster so
planted, which remain in the bed so desig-
case brought for damages for a private per-
sonal injury resulting from a nuisance.- Id. 4. Defendants justified a claimed conversion of
property by attempting to show that the
ground where the conversion took place was
a common oyster bed before it was acquired
by plaintiffs. Held, That a question to one of
defendants' witnesses, whether he had ever
as to discharge the same on the sidewalk time, but which was not limited in scope to
2; DIVORCE, 3; INSOLVENCY, 4; MORTGAGE,
3, 12; PARTNERSHIP, 11 ; PLEADING, 19.
1. A judgment in an action for the partition of
such property which takes no notice of the
rights of unborn children is not a bar to the
contingent interest of persons not in esse
when it is rendered.-Monarque v. Monarque
et al., 118.
after the making of such contract and before
notice of the actual dissolution.-Pennock et
al. v. White, 74.
transaction unconnected with the partnership recover for goods purchased by a, the decla-
faith that he was such copartner, and in re-
liance on the acts and conduct of B tending
to carry out the idea that he was a copartner.
– Greenwood v. Sias, 400.
13. Where it appears that a party was held out
by his authority and consented to be a partner
with another, the presumption arises that he
was so held out to every customer and cred-
were partners, L. purchased J.'s interest at a
valuation of the firm property, paying partly
in cash and partly in notes. In the final ad.
justment an account was taken of the capital
each had put in, the interest chargeable to
and the amount drawn out by each partner.
circumstances a copartnership existed is de- referee was justified in finding that tho indi-
for the jury upon proper instructions.-Id. of impeaching the settlement for fraud or
mistake.--Jagger v. Littlefield, 429.
liabilities in such suit, and took it out of the
partnership account, and that evidence of
payments by L. on such costs was inadmis-
firm funds not charged to J. on the firm
books, by showing what other sources J. had
of realizing money from. Held, inadmis-
sible as not sufficient to show a misappropri-
ation of the firm funds.-ld.
partner for damages for breach of copartner-
terclaim in an action by one of the partners
for an accounting, cannot properly be made
the subject matter of a subsequent suit for
damages against the other partners.—Coster
v. Llorens et al., 461.
of damages to which he was entitled for a
and a third person, by which the latter is to
share in the profits and losses of the partner
such evidence is open to criticism as proof of
such a fact, yet as the witness testified posi.
tively as to the payment, and as there was no
he may have had knowledge of the payment,
notwithstanding the facts admitted on cross-
examination, the finding will not be dis-
turbed.— The Mutual Life Ins. Co. v. Hoyt,
a right to replace a party wall which has ornation of perjury, averred that the prison-
as to his sufficiency as surety on a bail bond.
Held, Sufficient.-Stratton v. The People, 260.
tearing down of the wall between the build. 2. It is not necessary for the people to prove
1. An answer, in an action upon certain promis-
sory notes, which admits the making of the
notes, and alleges that the notes were ex-
ecuted by defendants for the accommodation
of one D., who procured same to be dis-
counted by plaintiff
, who had full knowledge
of all the facts, D, also giving to plaintiff at
the same time a mortgage to secure their
payment, which was ample security for such
payment, and that an action is now pending
to foreclose such mortgage, and asks that the
suit on the notes be stayed until the termina-
tion of the foreclosure suit, is not frivolous
so as to allow the court to strike out same
upon motion.— The Chatham Nat. Bk. v. Ship-
the parties is properly overruled.— Wheeler
v. Crosby et al., 72.
the answer must allege all the facts which
show that the court had jurisdiction of the
parties and of the subject matter.-Cromwell
v. Burr, 133.
which the party making it expresses a desire 4. Section 5119 of U. S. R. S., only applies to
complaint, made by the attorney of the
, which merely states that the depo-
nent deems further amendment of the com-
plaint advisable, is insufficient to invoke ju-
of taxes by his principal, but on cross-exami. an order granting leave to amend.-Bewley v.