certain and separate the amount included in
the gross damages for defendant's wrongful
acts, the judgment must be reversed.-Id.
22. In an action to recover damages for injuries
alleged to have been caused by defendant's
negligence, the plaintiff is bound to show
that the injuries were attributable to such
negligence: it is not sufficient to show that
he was injured without his fault, by the
movement of defendant's cars while plaintiff
was attempting to get on them.-Henry v.
The S. I. R. Co., 430.
23. It is not enough to make out a case of negli
gence, to suggest that additional precautions
would have prevented the accident, but the
question is, whether a prudent person, under
the circumstances, might be reasonably ex-
pected to foresee that the accident in question
might occur.-Loftus v. Union Ferry Co., 448.
24. In an action for damages on account of de-
fendant's negligence, while it is incumbent
on the plaintiff to show his own freedom
from negligence contributing to the accident,
it is sufficient if the inference of his freedom
from such negligence can be drawn from all
the testimony of both parties.-Glendenning
v. Sharpe, 457.
25. In the absence of such evidence a nonsuit
should be granted, for the presumption that
every one will take care of himself from re-
gard to his own life and safety cannot take
the place of proof.—Id.
26. While the crossing of a railroad without
looking to see whether a train is approaching
or not is ordinarily evidence, and in some cases
is conclusive evidence of negligence, yet the
rule is not an inflexible one nor applicable in
all cases. Regard must be had to the age of
the person killed or injured, as the same
degree of circumspection is not required by
an infant, even though he be sui juris, as of
an adult.-Powell v. The N. Y. C. & H. R.
RR. Co., 503.
27. Evidence sufficient to submit to the jury on
the question as to whether the place of acci-
dent was a public crossing.—Id.
28. There was a conflict of evidence as to
whether the usual cautionary signals were
given. Held, Independent of this question, the
fact that the defendant omitted all precau-
tions, such as the abatement of speed, attend-
ance of signal men and the shutting off travel
while the train was passing, was evidence
sufficient to submit the question of their neg-
ligence to the jury.-Id.
29. In an action brought for damages for an in-
jury suffered by plaintiff by the derailment
of defendant's train, the referee did not find
any negligent act on defendant's part in the
construction of the curve of the track, or in
the speed of the locomotive running around
it, but rested his decision, which was in
favor of the plaintiff, on the finding, that
in view of the sharpness of the curve, and of |
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the worn and weakened condition of the
flange which broke, the speed with which
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 flange is somewhat repelled
by proof of a flaw in the flange at the point
of fracture.-Brown v. Sharpe, 559.
30. To sustain a recovery in such a case it
should be found as 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
have happened without the operation there-
of.-Id.
31. Where the flaw is latent and indiscoverable
by any known test, the defendant cannot be
held liable because he did not discover it.—
Id.
32. Plaintiff was injured by reason of his horse
becoming frightened at a pile of stones by
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
travelers thereby after due notice and
neglect to remove them.-Eggleston v. The
President, &c., of the Columbia Turnpike,
33. The secretary and treasurer of the company
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.
34. H., an officer of the company, having testi-
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
was then asked if on that day P. told the
toll-gate keeper that he gave H. notice a
week before. Held, That the question was
incompetent.Id.
See FERRIES; MASTER AND SERVANT; MUNICI-
PAL CORPORATIONS, 2; NATIONAL BANKS, 2;
RAILROAD COMPANIES, 9, 15, 16; REFERENCE,
22; TORT, 3.
ceeds used to take up notes of the B.'s, in-
dorsed by one J., and the other $1,000 to
take up a past-due note indorsed by W. The
other note for $2,000 was discounted by
plaintiff, and the proceeds credited to the
B.'s account Oct. 28. Plaintiff had notice
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
submitted to the jury.-Nickerson et al. v.
Ruger et al., 329.
See AGENCY, 5, 7; ASSIGNMENT, 2; BANKRUPTCY,
7; BONA FIDE HOLDER; EVIDENCE, 11; FRAUD,
6; JURISDICTION, 3; PARTNERSHIP, 2; PLEAD-
ING, 20; PRACTICE, 4; WARRANTY, 1.
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
bearer. At that time plaintiff held no paper
of the B.'s, except a note for $2,400 which
fell due Oct. 12, and had been protested. In
an action on said note, Held, That in the ab-
sence of evidence of any right in plaintiff to
make a different application, or of any dif
ferent application in fact, the presumption is
that the note was paid by the check of Nov.
3. The Nat. Bk. of Gloversville v. Wells et
al., 23.
2. When a note is payable at a bank an entire
failure to present it for payment does not dis-
charge the maker. If the bank fails with the
funds to pay the note in its hands, this is no
defense to the note.-Indig v. The Nat. City
Bk., 44.
8. Where a purchaser of negotiable paper.
even for full value, has notice of facts which
put him upon inquiry, he is bound to make
such inquiry, or failing so to do, his rights
are subject to the effect of such facts as in-
quiry would have developed.-Von Schoon-
hoven v. Curley et al., 126.
4. Every person is presumed to know the exist-
ence and contents of the general statutes of
the United States.-Id.
5. In order to sustain a defense in an action on
a check that the same was without consider-
ation, the defendant must affirmatively estab-
lish a want of consideration.-Raubitschek v.
Blank, 170.
1. The power to order the construction of
sewers and to carry on the work of construc-
tion, conferred on the Department of Public
Works by the Charter of 1870, has not been
divested by the Charter of 1873.-In re peti-
tion of De Peyster, 171.
2. An action may be sustained by the Mayor,
&c., of the City of New York to require the
inspector of weights and measures in said
city to account for percentages and fees re-
ceived by him as such officer, as under sec.
96 of chap. 335 of Laws of 1873 such fees be-
long to the city, and it is no answer to such
action that no salary has been attached to
such 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.
6. Defendant and one H. verbally agreed to
exchange real estate, and defendant gave to
H. a check as part payment, and received a
receipt therefor. In an action on the check
defendant testified that he did not know 4
where the receipt was, and that he believed
it stated that the check was received on ac-
count of an exchange of property, mentioning
it, and also the conditions of the exchange.
Held, That the receipt was a sufficient con-
sideration for the check; that the two must
be read together, and make out a valid con-
tract between the parties.-Id.
7. Plaintiff held a check as an assignee of H.,
who was dead. Held, That defendant was
incompetent to testify to any personal trans-
action between himself and H.-Id.
8. In an action upon a promissory note by the
endorsees against the makers, where there
are several equitable defenses set up on the
trial, the defendants are properly allowed to
show their equities and have the whole case
By resolution of the board of health, adopted
in 1871, the office of engineer to the board
was made an honorary one, and it was pro-
vided that no salary should be attached to it.
Plaintiff was notified, and replied, expressing
his appreciation at being retained in office.
In an action for services performed in 1871,
2, 3, Held, That the action could not be
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.
The Mayor, &c., of N. Y., 338.
The board audited plaintiff's bill for services
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.
-Id.
5. 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-
ciated in value, were bid in by the chamber-
lain on foreclosure for the amount of the as-
sessment thereon. Held, That no remedy
for the loss existed against the chamberlain.
— Chesterman et al. v. Eyland et al., 416.
See ASSESSMENTS, 3, 4, 8, 9; CONSTITUTIONAL
LAW, 2; PUBLIC OFFICE, 1, 2; QUO WARRANTO;
REMOVAL, 1.
1. The keeping or manufacturing of gunpowder
or fireworks does not necessarily constitute a
nuisance per se; that depends on the locality,
the quantity, and the surrounding circum-
stances, and not entirely upon the degree of
care used.-Heeg v. Licht, 169.
2. An owner of real property is liable for a pri-
vate injury caused by a nuisance thereon,
although the premises were occupied by his
tenant at the time of the injury, provided
the nuisance existed at the time of the de-
mise.-Wenzlich v. McCotter, 499.
3. Anything which detracts from the safety of
travelers, upon a highway or street, is a
nuisance.-Id.
4. No question of negligence is involved in a
case brought for damages for a private per-
sonal injury resulting from a nuisance.-Id.
5. The negligence of one maintaining or permit-
ting the nuisance does not excuse another
who created the same. Both may be held
jointly liable.-Id.
6. Water flowed into a pipe fixed by defendant so
as to discharge the same on the sidewalk
before his house, where, congealing, it caused
a nuisance. Held, That the fact that it
flowed into the pipe from adjoining premises
is immaterial on the question of the owner
of the pipe's liability for injuries to a third
person, caused by such person's slipping on
the ice on the sidewalk, resulting from the
discharge from the pipe.-Id.
ORDER OF ARREST.
See ARREST; TRESPASS, 1.
ORDER OF SALE.
1. One S. accepted a devise of land charged
with payment of a legacy, and afterwards
conveyed the same to W., subject to the
legacy. W. reconveyed a part to S., and the
balance at different times to other parties.
On foreclosure of the lien of the legacy the
lands were sold in the inverse order of aliena-
tion by W., enough being realized to satisfy
the judgment without selling that conveyed
to S. Held, no error; that the reconveyance
by W. to S. constituted the land remaining
in the hands of W. the primary fund for the
payment of the legacy; and the fact that S.
was personally liable and W. was not, did
not affect this equity.-Hopkins v. Wooley,
2. It is the prevailing doctrine in courts of
equity that real estate, subject to lien, which
has been alienated in parcels to several
persons at different times, shall be subjected
to payment of such lien in the inverse order
of alienation.-The Nat. Saving Soc. of D. C.
v. Creswell et al., 441.
See MORTGAGE, 22.
1. Any citizen has the right to acquire
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
same principle which governs that in fere
noture which has been caught and re-
claimed.-McCarty et al. v. Holman et al.,
2. It is a misdemeanor to take and carry away
oysters so planted. Id.
The same right of property extends to and
embraces the offspring of the parent oyster so
planted, which remain in the bed so desig-
nated.-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
got oysters on that ground before a certain
time, but which was not limited in scope to
a period prior to the planting of the beds by
plaintiff, was properly excluded.-Id.
See CORPORATIONS, 20, 21, 23; CREDITORS BILL,
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.
1. Where one of two or more partners under-
takes by an incomplete and executory con-
tract to transfer his interest in the firm to
the others, such contract does not work a
dissolution of the partnership until executed,
and notice given to customers that such
partnership is dissolved, based only on the
authority of such executory contract, will
not release such withdrawing partner from
his liability for debts of the firm contracted
after the making of such contract and before
notice of the actual dissolution.-Pennock et
al. v. White, 74.
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5. The members of a firm are not liable for the
individual acts or debts or torts of one of the
members in no way connected with the part-
nership business.- Id.
6. Where the question as to whether under the
circumstances a copartnership existed is de-
pendent upon inferences to be drawn, and is
a matter of doubt, the question is one of fact
for the jury upon proper instructions.-Id.
7. When a party advances money to another,
and for the use of the money he is to share
in the profits of the transaction besides the
interest upon the sum loaned, he cannot be
held liable as a partner to third persons who
deal with the borrower of the money.-
Curry v. Fowler et al., 165.
8. Where one of two partners had sold the
firm property to his son, at a sale made in
fraud of the other, Held, That evidence
tending to show the amount realized by the
vendee from the property was inadmissible
in an action for an accounting between the
partners.-Flannagan v. Madden, 198.
9. The use of a firm name not representing
actual existing partners is illegal, except by
the remaining partners of a former firm who
shall file a certificate with the county clerk
showing who the remaining partners are, &c.
-Lunt et al. v. Lunt, 329.
10. A firm cannot enforce a contract made by
them while using such illegal firm name.—
Id.
11. One member of a firm may sell and trans-
fer the personal property of the firm, and in
doing so he acts on behalf of the firm, and
the transaction is in legal contemplation a
sale made by the firm. The deceit or fraud
practiced upon such member of the firm for
the purpose of inducing such a sale is also,
in legal contemplation, a fraud committted
upon the firm and the injured parties to it,
the members of the firm, may maintain their
action for the injury, precisely as though the
several members of the firm had participated
in the sale, and in case one of the firm re-
fuses to join as plaintiff he may, under the
Code, be made a party defendant.-Prouty et
al. v. Whipple, 387.
12. In an action against A & B as partners, to
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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-
itor.-ld.
14. By an agreement between J. & L., who
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.
In an action on the notes, Held, That the
referee was justified in finding that the indi-
vidual accounts were embraced in the settle-
ment; that this finding cast on L. the burden
of impeaching the settlement for fraud or
mistake.--Jagger v. Littlefield, 429.
15. At such settlement it was agreed that L.
should have sole charge of a suit brought by
the partners against one P., the costs and
judgment to be divided between them. Held,
that this was a settlement of their respective
liabilities in such suit, and took it out of the
partnership account, and that evidence of
payments by L. on such costs was inadmis-
sible.-Id.
16. The firm funds had been deposited in J.'s
individual account. Defendant offered to
show that such account was credited with
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.-Id.
17. A cause of action existing in favor of one
partner for damages for breach of copartner-
ship articles, which has been set up as a coun-
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.
18. Where a firm is dissolved, and the assets
turned over to one of the partners upon the
understanding that he should be allowed to
retain sufficient of the proceeds to pay what-
ever he was justly entitled to in consequence
of damages to which he was entitled for a
breach of the copartnership articles, an ac-
ceptance of the assets with this understand-
ing limits such partner to compensation
therefrom.-Id.
19. A contract between one of several partners
and a third person, by which the latter is to
share in the profits and losses of the partner
with whom the contract is made in the firm
business, does not make such third person a
partner in the firm, or liable for the partner-
ship debts.-Burnett v. Snyder, 483.
See BONDS, 2; CONTRACT, 6; ESTOPPEL, 6; RE-
PLEVIN, 6; VOLUNTARY ASSOCIATIONS, 3.
1, An old wall between two buildings, from
long user, in the absence of evidence, will be
deemed presumptively a party wall, either
by agreement to that effect, or from its be-
ing built upon the line for that purpose by
the respective owners.-Schile v. Brokhahne,
149.
2. While the owner of one of the buildings has
a right to replace a party wall which has
become so dilapidated as to be unsafe, and in
so doing is not liable for damages, yet he
will be liable if he interferes with it for his
own benefit, as by raising it.—Id.
3. Plaintiff's business was interrupted by the
tearing down of the wall between the build
ings by defendant. Held, That plaintiff's
loss of profits could be allowed as damages,
and that evidence of the business and profits
during the corresponding months of the
previous year was competent on that point.—
Id.
1. An indictment under 2 R. S., 682, § 8, for sub-
ornation of perjury, averred that the prison-
er, by the offer of a sum of money, at-
tempted unlawfully and corruptly to procure
one W. to commit wilful and corrupt perjury
as to his sufficiency as surety on a bail bond.
Held, Sufficient.-Stratton v. The People, 260.
It is not necessary for the people to prove
all the averments of the indictment. It is
sufficient if enough of them are proven to
make out the offense.-Id.
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-
man, 9.
1. Plaintiff, while working for defendant in 1862,
invented an improvement in hinges, and ap-
plied for a patent. In January, 1863, plain-
tiff, in consideration of an agreement to pay
him a royalty on all hinges manufactured as
long as the patent should run, assigned to
the company said invention, and authorized
the issue of letters patent to it. The assign-
ment was recorded, and a patent issued to
the company in Dec., 1863. In an action for
royalties, defendant claimed that it was not
liable, as it was not organized until Aug.,
1863. Held, That whether this was the first
corporate organization, or a reorganization of
a former company, was immaterial; that 2. A joint demurrer which is bad as to one of
having adopted and acted under the agree-
ment under which the assignment was made,
and enjoyed its benefits, it was bound
by it.-Bommer v. The Am. Spiral Spring Butt
Hinge Mfg. Co., 470.
1. A payment is voluntary only to the amount
which the party making it expresses a desire
to pay; where plaintiff knew the fare over a
ferry was in dispute, and was claimed by its
lessee to be ten cents, and he gave the toll-
collector ten cents, demanding four cents
change, such payment is voluntary only to
the extent of six cents.-Edwards v. Abeel,
84.
2. A witness testified positively to the payment
of taxes by his principal, but on cross-exami-
nation admitted that he was not present when
the parties is properly overruled.--Wheeler
v. Crosby et al., 72.
3. In pleading a composition in bankruptcy
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.
4. Section 5119 of U. S. R. S., only applies to
pleading a discharge, and does not apply to
composition proceedings.-Id.
5. A moving affidavit for leave to amend the
complaint, made by the attorney of the
plaintiff, which merely states that the depo-
nent deems further amendment of the com-
plaint advisable, is insufficient to invoke ju-
dicial discretion, and insufficient to support
an order granting leave to amend.-Bewley v.
The Equitable Life Ins. Co., 191.
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