MUNICIPAL CORPORATION.

duty is a public duty and the obligation of it cannot be discharged by con-
tracting with another for its performance. But the primary duty on the rail-
road company may be considered by the jury in determining the negligence
of the city. Watson v. Tripp, 282.

Id.

2. A tax-payer is not a competent juror in actions against a municipality.

3. The corporate authorities of a city hold the public streets in trust for the
use of the public. Where the municipality possesses the fee in such streets,
although in trust for public uses, it may maintain ejectment against any one
who wrongfully intrudes upon or occupies or detains the property. Where
the adjoining proprietor retains the fee, the right to the possession, use and
control of the street by the municipality is regarded as a legal and not a mere
equitable right. Chicago v. Wright, 316.

4. Equity has no power to enjoin the exercise of the police powers given
by law to the officers of a municipal corporation, so as to prevent such officers
from preserving the public peace, and from keeping a public street open to
public use.

ld.

5. A grant in a legislative charter of a railroad of a right to fix its ter-
minus at a point within the limits of a municipal corporation, to be approved
by the council, and the subsequent approval of the point of terminus by the
council, will not be taken to constitute an irrevocable contract, or to deprive
the corporation of its proper and legal control over the use of its streets, un-
less such is the effect of an express grant or a necessary implication from
the charter. F. & P. Railroad Co. v. City of Richmond, 170.

6. It is within the ordinary and implied powers of a municipal corporation
to regulate the kind of vehicles and the speed at which they may be used in
traversing its streets. Id.

7. Courts of chancery have no jurisdiction to restrain the threatened viola-
tion of a municipal ordinance unless the act amounts to a nuisance. Village
of St. Johns v. McFarlan, 383.

8. The erection of a wooden building within municipal fire-limits is not
of itself a nuisance, nor does the fact that it is prohibited by an ordinance
make it so. Id.

9. A city, having power to construct public sewers, and to receive pay from
adjoining owners for liberty to enter their private drains into such sewers,
is responsible for negligently suffering them to occasion a nuisance, if the
nuisance does not result from the original plan of construction, and could be
avoided by keeping them in proper condition. Rowe v. Portsmouth, 713.

10. In maintaining such public sewer, a city is bound to use that degree
of care and prudence which a discreet and cautious individual would use if
the whole loss or risk was to be his alone. Id.

Id.

11. A city will not be liable for injuries caused to individuals, by an ob-
struction in such public sewer not placed there by its own officials or by au-
thority of the city government, until after actual notice of such obstruction,
or until, by reason of the lapse of time, actual notice may be presumed.
12. An assessment for street improvements, when the work is only par-
tially completed, is premature and unauthorized. Cincinnati v. S. G. Avenue
Co., 686.

13. The division of a municipal corporation into others or its annexation
to another does not affect its rights and liabilities. Id.

14. Municipal corporations are created by the legislature from which they
derive all their powers, except where the constitution of the state otherwise
provides. County Commissioners v. County Commissioners, 686.

15. Municipal corporations may act through their officers, but the people
are the source of all authority, and it is to this authority they must come at
last, whether immediately or by a circuitous process. Barnes v. District of
Columbia, 686.

16. A provision in a city charter gave the power "to license, tax and reg-
ulate and control wagons and other vehicles conveying loads in the city; to
prescribe the width and tire of the same, the weight of loads to be carried
and the rates of carriages." Held, not to apply to the case of wagons used

MUNICIPAL CORPORATION.

by the defendant in the regular course of his business as a merchant, but only extends to wagons of common carriers for hire. Joyce v. East St. Louis,

557.

17. Where specific power is given by the legislature authorizing a board of education to issue negotiable bonds for school purposes, the regularity of the proceedings cannot be inquired into against a bonâ fide holder. State v. Board of Education, 557.

18. Mandamus is the proper remedy to compel the board to appropriate moneys for that purpose.

Id.

19. If the people of a county vote a subscription in aid of a railway company to be paid in bonds of the county upon certain conditions precedent, the county authorities cannot delegate power to others to determine when the conditions are performed, but must determine that fact themselves. Supervisors v. Brush, 557.

MURDER. See CRIMINAL LAW, II.

NAME.

Sec EVIDENCE, 2; JUDGMENT, 4; MISNOMER.

NATIONAL BANK. See CORPORATION, 26.

1. A national bank has no power to take a mortgage as security for the loan of money, and if it does so, the mortgage is void and proceedings upon it will be enjoined. Matthews v. Skinker, 488.

2. Corporations having only the powers expressly given by their charters or the law under which they are incorporated, or such as are necessarily implied, must follow strictly the mode of action prescribed by the law. Id.

3. The National Bank Act not only fails to authorize, but expressly prohibits the banks from dealing in real estate securitics, except in certain specified cases to secure debts previously due. Id.

4. A person paying more than the legal rate of interest to a national bank cannot have it applied as a payment of so much of the principal, in an action brought two years afterwards. Higley v. First National Bank, 501.

5. In such case the rights of the parties are not affected by the state usury laws. Id.

6. The New Hampshire statute, subjecting the surplus capital of banking institutions to taxation, is applicable to national banks. First National Bank v. Peterborough, 501.

7. Such taxation of the surplus capital of such banks, is not prohibited by Congress, and is not an encroachment upon the constitutional powers vested in the Federal government.

Id.

8. The states can exercise no control over the national banks nor in any wise affect their operation except in so far as Congress may see proper to permit. National Bank v. Dearing, 621.

9. The provision of the Act of February 10th 1868, that taxation on national bank stock shall not be at a greater rate than is assessed upon other moneyed capital in the states, relates only to the rate, and does not prohibit the states from exempting any subjects from taxation. Gorgas's Appeal, 622. 10. The stock of national banks is liable to a school tax in addition to the state tax. Carlisle School District v. Hepburn, 622.

11. In the honest exercise of the power to compromise a doubtful debt, stocks may be accepted in payment and satisfaction. National Bank v. Nat. Exchange Bank, 743.

NEGLIGENCE. Sec ADMIRALTY, II.; COMMON Carrier; MASTER AND SERVANT; MUNICIPAL CORPORATION, 1, 9-11.

1. Damages for death of plaintiff's husband should include all pecuniary damages either already suffered or prospective. B. & O. Railroad Co. v. State, 60.

2. Next of kin may maintain action for death caused by negligence. Grotenkemper v. Harris, 125.

3. In such cases, the reasonable expectation of what the next of kin might have received from the deceased, had he lived, is the proper measure of damages. Id.

NEGLIGENCE.

4. In an action for injuries to the person of plaintiff's intestate, causing his death, although the recovery must be confined to damages of a strictly pecumiary kind, yet the jury are not held to any fixed and precise rules in estimating the amount of damages (within the statutory limit on that subject), but may compensate all pecuniary injuries, from whatever source they may proceed. Ewen v. C. & N. W. Railway Co., 254.

5. Where the damages in such an action go to the parents of the deceased, evidence of their health and estate, and of other facts bearing on the probabilities of their needing the services of the deceased, or of their suffering any actual pecuniary loss from his death, may be submitted to the jury. Id.

6. In such an action, if it were clear from the undisputed facts, that the boy himself, considering his age and intelligence, did not exercise proper care in crossing the track, or that, in view of his tender years, his mother was guilty of contributory negligence in permitting him to go alone, the trial court might determine, as a proposition of law, that there could be no recovery. Id.

7. But where the circumstances leave the inference of negligence in doubt, and the court is unable to say that upon the most favorable construction for the plaintiff which can be given to his evidence, there is nothing to submit to the jury, a nonsuit is improper. Id.

8. Negligence is the absence of care, according to circumstances. delphia, Wilmington & Baltimore Railroad Co. v. Stinger, 383.

Phila

9. The failure of an engineer approaching a highway, if danger is to be apprehended, to give warning, is negligence per se, to be determined by the court. Id.

10. One driving a vicious horse along a public road, running side by side with a railroad, does so at his peril. Id.

11. Negligence in the plaintiff which may have contributed to the injury will not prevent a recovery, when it is slight as compared with the negligence of the defendant. Illinois Central Railroad Co. v. Benton, 316.

12. Negligence to operate as an estoppel must be the proximate cause of the loss. Brown v. Howard Fire Ins. Co., 446.

13. C. bailed to B. a horse, for hire, to convey him from D. to S. B., upon arriving at S., put up the horse in a proper place, and the next morning properly watered, fed, and cared for her, and left her, intending to return, and in fact returning, within a suitable time to care for her, but having reason to apprehend that A., sixteen years of age, would attempt to water the horse during his absence. A. turned the horse loose to water her, and the horse in consequence thereof became lamed. Hld, by the court sitting for trial without a jury, that these facts showed no evidence of lack of ordinary care and prudence on the part of B., and that he was not liable to C. for the damages. Chase v. Boody, 125.

14. The defendant was driving through a city street in the evening, on the right hand side of the street, at a moderate speed, and in passing a team standing on the same side of the road was compelled to turn into the middle of the street, and in so doing necessarily occupied about two and a half feet of the left hand side of the street. In thus passing around the standing team he came into collision with the plaintiff's vehicle which was coming towards him. There was ample room for both teams, but neither driver discovered the other till the moment of collision, and both the plaintiff and defendant were using ordinary care. Held, that the defendant was not liable for the damage. Strouse v. Whittlesey, 33.

15 In an action against a railroad company for burning a house through an alleged defective engine, held, that the condition of that engine and its management were all that was to be considered Erie Railway Co. v. Decker, 445.

16 If that engine was properly constructed, the company would not be liable, although the burning was occasioned by fire accidentally issuing from Id.

it.

17. Evidence to prove defects in other engines of the company was irrele

NEGLIGENCE.

18. Where fire is communicated from an engine to adjoining lands and
from these to others the owner of the latter may sue and the negligence is not
too remote. Railroad Co. v. Bales, 622.

NEW TRIAL. See ERRORS AND APPEALS, 4, 8.

NON-RESIDENT. Sec CONSTITUTIONAL LAW, 11-13.
NONSUIT. See ERRORS AND APPEALS, 2.

NUISANCE. See MUNICIPAL CORPORATION, 7, 8.

OFFICER. See COURTS, 11; TRESPASS, 3.

1. A promise to pay a public officer an extra sum beyond that fixed by
law, is not binding, though he renders services greater than could legally
have been required of him. Decatur v. Vermillion, 558.

2. If an officer advertises property taken in execution at one place, for sale
at another place, and sells it accordingly, he thereby becomes a trespasser ab
initio. Evarts v. Burgess, 744.

ORDINANCE. See INTOXICATING LIQUORS; RAILROAD, 6; STATUTE, 9, 10.
PARENT AND CHILD.

1. The father is prima facie entitled to the custody of his children, and
where he is of good character and able and willing to maintain them, his
right is paramount to that of all other persons, except in the single case of an
infant of such tender years as to necessarily require for its own good the care
of its mother. State ex rel. Lynch v. Bratton, 359.

2. But the father's right is not absolute or unqualified. He may relinquish
or forfeit it by contract. by his bad conduct or by his misfortune in being
unable to give it proper care and support. Id.

3. Where a father has, through his fault or his misfortune, lost or forfeited
his right, and subsequently, by reformation or otherwise, reinstates himself
in a position to properly care for and maintain his child, his right does not
necessarily revive, but a court upon habeas corpus will exercise a sound dis-
cretion in view of all the circumstances with reference to the welfare of the
child itself. Id.

4. A court will never order a child into the custody of an improper person,
but where the child has reached the age of discretion the court will in many
cases allow it to make its own choice, even though it choose a person whom
the court would not voluntarily appoint. Id.

5. There is no fixed age at which the period of discretion is considered to
begin. It depends on the capacity of the child to reason sensibly, though as
a child, in regard to its condition, its feelings, and its future welfare. Id.

6. Courts have no jurisdiction over the religious discipline and instruction
of children. Such matters are proper to be taken into consideration, among
other circumstances, in determining the custody of children where it is in
dispute, but a difference in regard to religious views does not of itself afford
any ground for interference by the court on petition of a father who has lost
or forfeited his right of custody, with the person who has acquired such right.
Id.

PARTITION.

1. A mortgagee of an interest in an undivided estate is not entitled to be
made a party to a proceeding in partition. Long's Appeal, 60.

2. When partition is made, the security of the mortgage attaches to the
estate held in severalty. Id.

3 The mortgagee may object to fraud or unfairness affecting his interest,
but if the partition be fairly made he cannot gainsay it. Id.

PARTNERSHIP, See BANKRUPTCY, 15; BILLS AND NOTES, 18, 23, FOREIGN
JUDGMENT; FRAUDS, STATUTE OF, 1.

1. The assignee in bankruptcy of the estate of an individual partner of a
debtor copartnership, cannot maintain a suit to recover back money pre-
viously paid to a creditor of the copartnership, upon the ground that the

PARTNERSHIP.

money was paid to such creditor in fraud of the other creditors of the firm,
and in fraud of the provisions of the Bankrupt Act. The suit should be by
the assignee of the partnership. Amsinck v. Bean, 253.

2. The mere fact that one partner allows the other to manage the partner-
ship assets apparently as if they were his own, does not of itself dissolve the
partnership. Id.

3. In an action on a note, made by defendants in their firm name and
for a partnership debt, they cannot offset an account against plaintiff in favor
of another firm, now owned by one of the defendants. Wilson v. Runkel, 190,
4. Where a partnership and the several members of the firm are insolvent,
and there are no partnership funds for distribution among its creditors, the
creditors of the firm are entitled to share equally with the creditors of each
partner, in the distribution of his individual assets, the amount so distributed
to the creditors of the firm, however, not to exceed the amount of their claims.
Brock v. Bateman, 214.

5. The subject of distribution of individual and firm assets among creditors,
discussed. Id., note, 216.

6. The separate property of each partner is alike liable to execution with
the property of the partnership, and equity will not ordinarily interferc.
Lewis v. United States, 678.

7. Partners are liable in solido for the torts of one, if the tort is committed
by him as a partner, and in the course of the partnership business. Loomis
v. Barker, 316.

8. When a share in the profits merely constitutes a part of the compensa-
tion received, it does not create a partnership. Burton v. Goodspeed, 316.

9. In an action for an account, it is not error for the court to submit to
one jury the question of the terms and duration of the partnership, then to
refer to a referee to state the account between the partners, and finally to
submit to a second jury the claims for damages. Carlin v. Donegan, 317.
10. The obligation of one partner to another is the exercise of good faith
and of ordinary care and prudence. Id.

11. The members of an insolvent firm are not entitled to the statutory ex-
emptions out of the partnership property after it has been seized in execution
by partnership creditors, notwithstanding all the members join in demanding
the exemptions. Gaylord v. Imhoff, 477.

12. If notes are given bonâ fide by a liquidating partner and the proceeds
applied to payment of firm debts, the other partners are liable. Lloyd v.
Thomas, 624.

PAYMENT.

See APPLICATION OF PAYMENTS; CONFEDERATE STATES, 5.
1. A payment by a debtor to an administrator duly appointed is valid, and
a bar to a second action, although the supposed intestate is alive at the time
and the letters of administration are subsequently revoked for this reason.
Roderigas v. East River Saving Institution, 205.

2. Although surrogate courts are of limited and special jurisdiction, which
depends upon the existence of certain facts, yet their decision upon the exist-
ence of such facts and their consequent jurisdiction is conclusive until regu-
larly reversed or vacated, and will protect all innocent parties acting on the
faith of it. Id.

3. Where a party accepts a deed in payment of a debt, and receipts the
same, in ignorance of the fact that the deed is a nullity, there being no such
property in existence as it assumes to convey, this will be no payment, and
he will not be concluded by his receipt. Anderson v. Armstead, 254.
VOL. XXIV.—99