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when father has entrusted child to grandmother, her custody is in legal intendment his. State v. Barney, 422.

2. Hence, when mother, assisted by her brother, forcibly took the child so entrusted from its grandmother, the force being exerted by the brother at mother's request, Held, that brother was criminally liable for assault and

battery. Id. PARDON.

Unconditional pardon cannot be treated as nullity on habeas corpus proceeding, after re-arrest on ground that pardon was traudently obtained by acts done to affect prisoner's health and representations concerning it. Knapp v. PARTNERSHIP.

Thomas, 485. PARTITION.

1. At common law, partition operates by way of delivery of possession and estoppel ; in equity, unless otherwise provided by statute, the transfer of title in partition can only be effected by execution of conveyance, which may be dccreed, and compelled by attachment. Gay v. Parpart, 221.

2. Where decree for partition erroneously declared nature of estate of each co-tenant and deeds were made three days after which did not follow decree, oill being brought twelve years afterwards to perfect partition by compelling conveyances in accordance with original decree, Held, that court could inquire into equities of parties arising out of surrounding circumstances and refuse to decree conveyance when inequitable to do so. Id.

3. If original decree was made by consent of party against whom error was committed, without valuable consideration, and no one is interested but volun

teers or purchasers with full notice, no such decree will be made. Id. PARTNERSHIP. See CORPORATION, 10. ExecutORS AND ADMINISTRATORS,


1. Action at law lies for breach of contract to form copartnership. Hill v. Palmer, 149.

2. If damages from breach of partnership agreement belong exclusively to one partner, and can be assessed without taking an account of partnership business, he may maintain an action at law, Id.

3. One partner can not assign firm property for benefit of creditors, unless his copartner can not be consulted. Lieb v. Pierpont, 34, and note.

4. Partner purchasing in good faith interest of copartner, though firm be known to be insolvent, can claim exemption out of what was partnership property as against partnership creditors. Mortley v. Flanagen, 77.

5. Executor or administrator of surviving partner dying while settling business, is entitled to assets, and must complete settlement, unless relieved by contract or order of court; and he may be compensated for so doing. Dayton v. Bartlett, 77.

6. Where parties agree to share in profits, law will infer partnership ; but presumption may be rebutted. Lockwood v. Doane, 815.

7. Rule omnia praesumuntur contra spoliatorem is for wrongdoers, and should not be applied to case where failure to perform duty (as to keep accounts) is due solely to incapacity. Diamond v. Henderson, 550.

8. In action by one partner against another for accounting, though it appears on trial that nothing is due plaintiff, yet, if defendant unreasonably neglected to render account, there should be judgment adjusting rights of parties, and court may impose costs on defendant. Id.

9. Where one member of firm goes out and new partner takes his place, and business is conducted under same style, customer of old firm selling and delivering goods to new firm after change, but without notice of it, can hold either firm liable, but not both. Scarf v. Jardine, 364, and note.

10. Where partners sought and obtained aid of accountant in adjusting accounts, for purpose of settlement, and he prepared paper showing what he considered a fair settlement, which they adopted, Held, no arbitration or award, but that paper merely constituted settlement, liable to be opened for mistake. Stage v. Gorich, 807.

il. Where it is clearly shown that one partner has made advances for use of

firm of considerable sums, which were not taken into consideration at settlement,
on bill filed by one of partners for account, Held, that case should have been re-
ferred to master to state accounts anew, so far as concerned omitted items. Stage
v. Gorich, 407.

12. Where fire insurance is effected by member of firm in firm's name, upon
property of firm, and premium is paid from funds of firm, though charged by
such member to himself, insurance will be for benefit of firm, notwithstanding
member thus effecting it intends it for his own private benefit. Tebbetts r.
Dearborn, 422.

13. If one partner on dissolution of firm, sells his interest in partnership
stock to copartner, relying alone upon agreement of latter to pay firm indebted-
ness, retiring partner will have no lien on goods for payment of partnership
liabilities, that can be enforced in equity. Purker v. Merritt, 422.

14. But where on dissolution, goods equal in amount to firm's indebtedness
are left with continuing partner, to be converted into money with which to pay
partnership indebtedness, he is trustee of such goods for that purpose, and the
trust may be enforced in equity by retiring partner for benefit of partnership
creditors, as against subsequent purchasers or execution creditors, with notice
of equities of retiring partner. Id.

15. Where surviving partner, with acquiescence of personal representatives
of deceased partner, and in good faith, carries on the business and pays debts
incurred in so doing, with partnership assets, such disposition thereof will be
valid, and cannot be treated as a fraud in law upon partnership creditors; but
upon bill filed by personal representatives of deceased partner, or partnership
creditor, he can be compelled to wind up firm business and apply its assets to
payment of its debts. Fitzpatrick v. Flanagan, 221.

16. If partner, bound to give his time to business of firm, and not to engage
in any other speculation or business in his own name and on his own account
to detriment of firm, uses his time, and labor and materials of firm, in making
improvements in machines manufactured and sold by firm, with knowledge and
without objection of other partners, they can claim no interest in letters patent
procured by him, at his expense and in his name, for such improvements.
Belcher v. Whittemore, 815.

17. Agreement provided that superintendent should receive for his services
one-sixth of net profits on city contract; he should have privilege of drawing
fixed sum per month, and of inspecting the books of account; but it was ex-
pressly agreed that he was not a partner with contractor, and was not to be in
any manner liable for damages growing out of prosecution of contract, other
than as such superintendent. Held, on bill filed by superintendent against con-
tractor and city, that he was not a partner. Reddington v. Lanahan, 486.

18. Three railroads operated under partnership arrangement, three lines of
road. B. obtained judgment against one of the railroads for injuries, not know-
ing of partnership. He levied on engine, &c., owned by the three companies,
and same were sold to his agent L. He had levied upon another such engine and
advertised it for sale, when he was enjoined. Bill having been brought set-
ting up superior rights of partnership creditors, Held, that court will not
enjoin where equities are equal, or where, as here, it does not clearly appear
that partnership indebtedness existed at time of seizure, or especially under
statute, whereby passenger, injured through negligence, has right in attaching
engine, &c., superior to general equity of partners. Railroad Co. v. Bixby,

PARTY WALL. See Covenant, 5.

1. For mechanism cannot be re-issued so as to cover process. Wing v.
Anthony, 149.

2. Design of patent laws is to reward a substantial discovery or invention.
Atlantic Works v. Brady, 286.

3. Patent not set up by way of defence, where there is no dispute as to time
it was issued, may be referred to, in connection with other testimony as to in-
vention, to fix date thereof. Id.


4. Bill may be dismissed because inventions described in patent are not pat-
entable, even when no such defence is set up in answer. Slawson v. Railway
Co., 423,

5. Where patentee is not pioneer in field, but has merely devised new
form to accomplish results known in that field, his patent cannot be extended
to embrace substantially different form. Duff v. Pump Co., 756.

6. Device capable of doing work of patented invention but not designed or
used for that purpose, and which would not be taken to be intended to be used

in that way, not a“ prior invention.” Clough v. Manfg. Co., 77.
PAYMENT. See Bills and Notes, 19. DEBTOR AND CREDITOR, 8, 9

1. To recover back money paid to prevent illegal distress for taxes it is suf-
ficient to show that such distress was impending and would certainly have been
made. Foward v. City, 149.

2. Simple acceptance by suit or otherwise, by third person, of promise made
to pay debt due him from another, will not release such other person ; it must
appear that subsequent obligation was accepted in lieu of original debtor's.

Briscoe v. Callahan, 691,

1. Money due for, not liable to seizure by creditors, until it has come to pen-
sioner's hands. State v. Assoc., 149.

2. Exemption under 4747 Rev. Stat., applies only while money is in

course of transmission. Triplett v. Graham, 149.

1. State law of Georgia compelling masters of vessels bearing towards any
port of that state (except coasters plying between ports thereof and of South
Carolina and Florida) to receive first pilot offering outside of bar, under penalty
of payment of full pilotage in case of refusal, does not violate art. 4, sec. 2 of
Constitution U. S. Thompson v. Sprague, 222.

2. But the erception in said law is contrary to section 4237 U. S. Rev.
Stat., and annulled by it, except as to ports situated on waters which are the
boundary between Georgia and those states. As to these, master may employ
any pilot licensed or authorized by laws of either state. Id.

3. Prior contract between master and another pilot will not give right to re-
ject pilot first offering. Id.

4. Contract between commissioners of pilotage and licensed pilots to limit
the number of pilots for three years to ten, was void. It is the duty of commis-
sioners to supply the port with sufficient number of pilots, and those licensed
have no right to prevent the issuing of a license to others in discretion of com-

missioners. Wright v. Commissioners, 149.


1. Count in tort for deceit in sale of stock may be joined with count in con-
tract to recover back price paid. Teague v. Irwin, 815.

2. General rule in torts and parol contracts is that day when tort was com-
mitted or contract made, is not material. When made material by defendant's
plea, plaintiff may reply by another day. Duffy v. Patten, 423.

3. Trover and case may be joined. McConnell v. Leighton, 423.

4. In action on insurance policy it is not necessary to set out in hæc verba
the several conditions therein, and then allege performance ; or to prove that
insured did not die in duel, or while employed on railroad, &c. Tripp v. Ins.

Co., 191.


1. On judgment for plaintiff on demurrer, defendant has no right to have damages assessed by jury. Hanley v. Sutherland, 286.

2. Rule of court provided that execution of writing, the foundation of claim of set oft, need not be proved, unless affidavit is filed denying the same. Held, that want of such affidavit does not prevent plaintiff' from showing that instrument, dated January 2d, was executed January 1st, and that his duplicate differed from defendant's. Ames v.

Quimby, 150. 3. Charge that plaintiff was not bound by mistake in carrying out price in bill of particulars, it not appearing by record what were contents of the bill, heid, not erroneous. Id.

4. Supreme Court of United States cannot review, on second writ of error,

its own judgment on first. Id. PRESUMPTION. See BILLS and Notes, 4. DOMICILE, 3. HUSBAND AND


None in law that man who disappeared at unknown date in 1809, was dead

on 29th of April 1816. Dean v. Bittner, 691. PROCESS. See CORPORATION, 18.

1. Service of summons on non-resident while going to, attending or returning from trial, as witness or party, is not a nullity, but court will set it aside or change venue, or otherwise remedy any special disadvantage such service entails upon defendant. Massey v. Colville, 550.

2. Citizen of Pennsylvania was extradited to Ohio, upon application of C. A. & Co., in criminal prosecution. Held, that service of summons and order of arrest in civil action by said C. A. & Co., directly after he had entered into recognisance to appear at next term and before conviction, and before

opportunity to return home, was rightfully set aside. Compton v. Wilder, 692. PROHIBITION.

1. Writ of prohibition lies only to inferior judicial tribunal, and not to bodies exercising ministerial and administrative powers only. Dougan v. District Court, 528, and note.

2. Where statute authorizes administrative or ministerial body (as council of city), to appoint an officer to hold during its pleasure, such body can remove in its discretion, and exercise of such discretion cannot be controlled or restrained by the courts. Id.

3. To justify disregard of order of court it should appear upon face of pleading that court had no jurisdiction. Id.

4. Where court is proceeding to punish disregard of illegal order, as for

contempt, it is proper case for preventive relief by prohibition. Id. PUBLIC POLICY. See ContrACT, 5, 6, 10. CORPORATION, 23. PILOTAGE, 4. RAILROAD. See CORPORATION, 17. Evidence, 1. INFANT, 6, 7. MASTER


1. When company has right of constructing particular line, with general power to purchase property, it may purchase road constructed on that line. Branch v. Jesup, 222,

2. Are quasi public corporations, and can be controlled by courts to extent of interest of public therein. McCoy v. Railroad Co., 725, and note.

3. Railroad company cannot bind itself to deliver to particular stock-yard all live stock coming over its line to certain point, and may be compelled to treat all equally by injunction at suit of proprietor of stock-yards discriminated against. Id.

4. A passenger injured in a sleeping-car may, in absence of notice, assume the whole train to be under one management, and sue the railroad company. Railroad v. Wolrath, 78.

5. Is liable for proper transportation of passenger to point of destination on through ticket, as for baggage on through check; and this, notwithstanding notice on ticket that company shall not be liable except as to its own line. Railroad Co. v. Coombs, 756.


6. Owner of ox which was upon railroad track through his negligence, and by collision with which cars and engine are thrown off track and damaged, is liable therefor. Railroad Co. v. Balduin, 756.

7. If animal escaped from enclosure without owner's knowledge or fault, he wonld not be liable for consequential damages in action on the case by railroad company. Id.

8. If railroad constructing its road under grant of right of way, fails to build necessary culverts, by reason whereof surface water is turned upon lands of grantor, it will be liable for damages, and cannot set off incidental benefits to grantor from construction of road. Gilbert v. Railroad, 150.

9. Contract between two connecting roads for division of earnings according to respective distances of carriage, is within discretionary powers of directors, and its execution cannot be enjoined at instance of stockholder, who does not show dishonest or fraudulent purpose in making contract, and that he will be injured thereby. Elkins v. Railroad Co., 286.

10. In application for such an injunction by stockholder of one road, the other is necessary party. Id.

11. Directors, without authority by statute or charter, passed resolution (subject to approval of stockholders at special meeting provided for therein), to assume certain debts and buy majority of stock and bonds and the equipment of rival road. Held, that proposed purchase was ultra vires and against public policy. Id. 287.

12. Clerk in railroad was entrusted with refunding certificates in blank to be filled up and delivered to holders of coupons. He fraudulently filled up some of certificates and disposed of them. Held, that company was responsible to innocent purchaser, and that facts that certificates happened to be in hands of party who was an agent of company, or that they happened to represent on their face that coupons had been deposited by such person, were insulficient to discredit certificates. Railroad Co. v. Bank, 816.

13. Before entering train, plaintiff asked engineer if it would stop at Tilton, who replied that he did not know, but that they would stop at Beardsley's. Thereupon plaintiff entered car orderly and decently, with money to pay his passage, and thereby became passenger. Afterwards, on asking conductor same question, conductor without provocation cursed, abused and ill-treated plaintiff, striking him with lantern and finally knocking him out of car door. Held, that declaration setting out these focts was not for breach of contract, but in trespass on the case. Turner v. Railroad, 551.

14. Evidence of above facts sufficient to carry case to jury. Id. RATIFICATION. See MortgAGE, 2. RECEIVER. See AssignMENT, 11.

1. Creditors without judgment or lien, title or interest attaching to debtor's property, have no right, as a general rule, to injunction and receiver, and even after judgment there must be some special circumstances to authorize equitable interference. Dodge v. Man. Co., 151.

2. Receiver of railroad was appointed at instance of bondbolders, under order of court “ to pay running expenses and expenses of receivership, and to pay debts due by said company for labor and supplies that may have accruel in maintenance of such property within six months preceding the rendition of this decree." Road was sold under decree of foreclosure and did not realize enough to pay bonds. While in receiver's hands, excess above running expenses was devoted to improvement of property. Held, that income of receivership having been so applied with consent of bondholders, fund in court could be appropriated as far as necessary to supply claims especially provided for when receiver was appointed. Union Trust v. Souther, 551.


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