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Offices and Officers - Partition.

V.

OFFICES AND OFFICERS-Con.

the limitation may be disregarded;
and such construction should be
given, when reasonable, as will up-
hold the statute rather than one
which would defeat it. State
Craig.

577
Deputy state supervisors of
elections, are not officers, within the
legal definition of that term, and,
though their jurisdiction may be co-
terminous with that of the county,
they are not county officers or with-
in sec. 1, art. 10, of the constitution,
providing that the general assem-
bly shall provide by law for the elec-
tion of such township and county
officers as may be necessary. Sec-
tion 2966-3, Rev. Stat., is not, there-
fore, inconstitutional for the reason
that it provides for appointment in-
stead of election of deputy state su.
pervisors of elections.

Ib.
The provisions of sec. 20, art. 2,
of the constitution, that the salary
of a county official cannot be in-
creased during his term of office, ap-
ply only to compensation for duties
germain to his office or incidental
or collateral thereto, and do not ap-
ply to services rendered in an inde-
pendent employment to which he is
appointed by an açt of the state leg.
islature, State v. Lewis.

537
Under the foregoing rules,
county surveyor who is required by
law to perform the duties of a mem-
ber of the county board of equali..
zation, is entitled to compensation
therefor, independent of and without
regard to the compensation which
he may receive as county surveyor.

Ib.
The act of 94 0. L., 396, applies
only to the elective county officers
in their respective offices, and does
not apply to additional, independent
offices imposed upon them by the
legislature.

Ib.

ligious training so provided for, and
he cannot he heard to say that the
well-being of the children demands
the violation of such

agreement
Luck, In re.

1
But after such agreement has
been annulled or disregarded by the
father as surviving parent, having
custody of the children, and for
years, since the death of the mother,
the nurture of the children has been
away from such training, no such
estoppel, upon the death of the fath-
er and in a contest between relatives
of the father and mother, can be al.
lowed to prevail over conditions
which may materially affect the wel.
fare of the children.

Ib.
Under circumstances above
stated, where it appears that the
mother's relatives seeking guardian.
ship of children of the ages (at date
of application) of six and
years, made no application therefor
until more than four years after the
mother's death, and that the chil.
dren have grown into the affections
of the father's relatives, with whom
they have been allowed to remain,
and no preponderating circumstances
appear establishing that the best in.
terests of the children will be sub-
served by a change, they should be
allowed to remain with the father's
relatives although under such guard-
ianship their religious training will
be in violation of the marriage
agreement above referred to. Ib.

seven

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PARENT AND CHILD-

An agreement entered into by a
non-Catholic at the time of his mar-
riage with a Roman Catholic, that
the children born of such marriage
shall be brought up in the Roman
Catholic faith, or a similar agree-
nient in respect to any religious de-
nomination, in a controversy be-
tween the father and mother as to
custody and education of such chil.
dren, creates an estoppel of the fath-
er's right to direct the course of re.

PARTITION-

Partition may be had where
the life tenant consents to a sale free
of the life estate and it appears to
the court that a sale will not be prej.

icial to the interests of the re-
maindermen. Helmig

Meyer.

308
The limitation of sec. 5756. Rev.
Stat:, refers to the time of entering
the decree, and not to the time of fil-
ing the petition. Therefore, upon
application for partition within the
time limit, and without compliance
with the statute, the court may over-
rule a motion to dismiss the petition
and grant an order overruling the
motion for plaintiff in partition for
judgment until the statutory period
has elapsed, unless the latter prove,

Partition – Pleading.

and the burden is his, that all debts
and claims have been paid or secur.
ed to be paid. Schneider v. Cordes-
man.

571

PARTNERSHIPS-

A partnership at will may be
dissolved by agreement of partners,
and it is immaterial whether it be
done by an express agreement, or by
acts and conduct of its members, or
one of them, showing an intention,
with acts carrying it into effect, to
terminate the relation. Dun & Co.
v. Insurance Co.

667
The fact that one member of a
firm, organized for the purpose of
carrying on a banking business, pur-
chased in good faith, goods for the
firm in consideration for and in sat-
isfaction of a judgment held by the
firm against the owner thereof, with-
out consulting with the other mem-
ber or getting his consent thereto,
and kept the store, containing these
goods as a stock, open as a going
concern, and sold goods from time
to time, will not operate, as a
fense of dissolution of the firm. Ib.

de-

The fact that one member of a
firm went out of the state to live and
gave no further personal attention
to tlie firm business, but left it to the
resident partner, does not in itself
work a dissolution thereof. Ib.

An association of corporations
under the name of the Golden Eagle
Buggy Company, without incorpora.
tion or partnership contract, which
does not show such a mutual agen-
cy, common ownership or profit
sharing as is necessary to constitute
a partnership. Merchant's Nat'l Bk.
v. Wagon Co.

81
See also INSURANCE-FIRE.

some

fringed where the matter in refer-
ence to which the pleading is said
to be uncertain, is peculiarly within
the knowledge of the opposing
party.

Ib.
Less certainty is required in set-
ting out matters of inducement,
than in setting out the gist of the
action; therefore, a plaintiff will not
be compellel to set forth the names
of individuals, copartnerships, and
corporations, organized as, a trust,
under a certaine name, for the pur-
pose of “freezing" him out of a cer-
tain line of business.

Ib.
The filing and determination of
a demurrer to a pleading on the
ground of insufficiency, is a waiver
of the right to file a motion to strike
out from such pleading or to make
the same definite and certain. Mont-
gomery v. Thomas.

290
A petition in an action on an in-
junction bond, alleging that a tem-
porary restraining order was grant-
ed and a bond given; that plaintiff
was restrained and prevented from
completing his building for
time and that he was caused expense
in procuring the restraining order to
be dissolved and the petition in the
original action to be dismissed, by
a fair inference amounts to a suffi-
cient allegation of the fact that the
court decided that the injunction
ought not to have been granted, al-
though the better course would have
been to have stated more directly
the action of the court as to the re-
straining order. Tarbell v. Ennis.

346
The defendant in a suit upon a
promissory note who pleads a want
of consideration may be required, by
motion to make more definite and
certain, to set forth the specific
facts upon which such defense is
based. Eagle Ins. Co. V. Blymyer.

417
Section 5091, Rev. Stat., substi-
tuted an averment of performance,
generally, for the specific averments
of the common law, but in no way
broadened the effect of such an aver-
ment. It is still limited to, and is
to be read in connection with the
conditions precedent, pleaded by
plaintiff as part of the defendant's
contract. Lauer v. Life Assurance
Society.

397
At common law it was the rule
that a performance of each condi-
tion precedent set forth as a part of
the promise must be averred spe.

PLEADING-

A party cannot allege want of
knowledge of matters of record.
These should be ascertained and def-
initely set out. Wentzel v. Zinn. 97

Material averments and entire
causes of action can not be stricken
out on motion. They must be met
by demurrer or answer.

Ib.
A motion to make an allegation
more definite and certain will not
lie where such allegation, though in
itself uncertain, is explained in a
subsequent part of the pleading.
Barron v. Plate Glass Co.

114
The object of the rule requiring
certainty in pleadings is not in.

Pleading

PLEADING-Continued.

cifically; but these averments of per-
formance related and referred to,
and were required of, those condi.
tions alone which plaintiff averred
as a part of the defendant's con-
tract.

Ib.
The time when the contract was
made, if material, must be stated
and laid truly; but if not material,
any time antecedent to the bringing
of the suit, within the statute of lim-
itations, will suffice. The place of
making the contract need not, as a
general rule, be averred; place, how-
ever, may become material in a par-
ticular case, and the burden of plead-
ing it, whether upon the plaintift
or defendant, will depend upon the
circumstances of such case. Ib.

Plaintiff, in his petition, has the
right to state his view or conception
of the matter or contract, and if de.
fendant does not agree with him, he
then interposes his defense to sus-
tain his own view or destroy plain-
tiff's. But the court cannot under-
take, on mere motion, to make plain-
tiff plead a view of the contract not
in harmony with defendant's no-
tions, as the court cannot take ju-
dicial notice of what the contract
really may be.

Ib.
An insurance policy is a written
instrument within the meaning of
sec. 5085, Rev. Stat., above referred
to, and when sued upon, copy
thereof should be attached to the pe-
tition; and if a copy of the applica-
tion for insurance constitutes a part
of the policy, it should also be at-
tached; otherwise it is not required.

Ib.
In declaring upon a contract the
primary rule is that the promise, the
obligation, of the defendant, must
he fully, truly and accurately set
forth; hence, if the promise or obli.
gation be dependent upon conditions
precedent such conditions form an
integral part of the promise or obli-
gation of the defendant, and must
be fully, truly and accurately plead-
ed.

Ib.
A written instrument evi.
dence of indebtedness, under sec.
5085, Rev. Stat., comprises any in-
strument in writing which witnesses
a promise, whether conditional or
unconditional, on the part of the
maker thereof, to pay a certain fix-
ed, liquidated sum of money; when
sued upon, a copy of such instru-

ment must be attached to the peti-
tion.

Ib.
The court cannot take judicial
notice of what the terms and condi.
tions of the contract really are, save
as disclosed by the petition; and in
the first instance, when the question
is presented by motion to make the
petition more definite and certain,
being in the nature of a special de
mirrer, the court must assume that
the contract is as stated, without
qualification. Block Distilling
Co.

409
While it may not be material
in the least to the controversy be.
tween the parties, yet for the court
to get an intelligent understanding
of the subject of the controversy, it
is always proper that explanatory
averments should be made by way of
inducement of matters connected
with the subject of the controversy
that otherwise would be left vague
and uncertain.

Ib.
So much of the petition as is de-
voted to averment of performance of
conditions precedent is not by way
of explication of the contract, which
must be independently set forth
when the contract itself is stated,
expressly or by way of necessary
inference, but are averments which
are to show that the conditions of
the contract, as they are stated or
described, when the contract is set
forth, have been fully complied with
and the obligation of the defendant
fixed.

Ib.

.
The question whether the plain-
tiff has stated the contract correctly,
or incorporated all that is essential
to his right to recover, cannot be
met by motion or special demurrer;
that is matter of substance, and is
reached by tendering proper issue of
fact.

Ib.
In a suit on a written contract,
an averment that "among other
things it was agreed," the words
"among other things," should be
stricken out as surplusage. Ib.

While a plaintiff must state the
contract sued on, at least so much
thereof as embraces the defendant's
promise, truly and correctly, yet it is
sufficient to state those parts of it
whereof a breach is complained, or,
in other words, to show so much of
the terms beneficial to the plaintiff
as constitutes the point for the fail.
ure of which he sues.

Ib.
Where a pleading contains in-
consistent averments, as where a pe-

a

as

Pleading – Railroads.

tition contained such averments as
to interest due, which, when taken
in connection with the recital in gen-
eral terms of a subsequent agree-
ment, made it uncertain whether
plaintiff counted on the agreement
or a note, the pleader should be re-
quired to reform such pleading. Ed-
wards v. Daller.

531

PUBLICATION-

Publication, when a daily paper
is selected, once each week and on
the same day, for three consecutive
weeks, constitutes a compliance with
sec. 2502, Rev. Stat., relating to pub-
lic notice of ordinances granting
rights to street railway companies.
It is not necessary that the notice
should appear on every secular day
for three weeks. Smith v. Railway
Co.

441

POLICE-

See ARREST.

POLICE COURTS

An act of the general assembly
extending jurisdiction of the police
court to hear and finally determine
all misdemeanors committed within
the limits of the county in which the
court is situate, which is not enacted
by a two-thirds vote of the members
of each house, is unconstitutional
and void. State v. Voris.

451
An act of the general assembly
giving jurisdiction to the police
court to hear and finally determine
misdemeanors committed within the
limits of the county in which such
court is situate, which excludes, in
cases where imprisonment is a part
of the penalty, from jury service, the
citizens in that part of the county
over which the jurisdiction is ex-
tended, is in contravention of the
constitutional right of trial by jury
of the county or district in which the
offense is alleged to have been com-
mitted.

Ib.

PRESCRIPTION-

In order to claim title by pre-
scription, the use must be adverse,
uninterrupted, continuous, and with
the knowledge of the owner of the
estate for a period of twenty-one
years. Dayton v. Hydraulic Co.

192
PROBATE COURTS-

The jurisdiction of the probate
court in the matter of removing ex-
ecutors and administrators, under
secs. 524 and 6017, Rev. Stat., is ex.
clusive, and its exercise can be re-
viewed only for fraud, or for palpa-
ble and manifest abuse of power, and
upon complainti by a party whose
substantial rights are affected there.
by. Munger v. Jeffries.

RAILROADS-

Section 3365, Rev. Stat., impos-
ing upon railroad companies the
duty of blocking guiard-rails, except
upon bridges, applies to trestles.
Johns v. Railway Co.

348
If data are furnished by which
the speed of a railroad train can be
determined, the question whether
the train was running at an unlaw.
ful rate of speed should go to the
jury. If not, it is then a question
of law for the ourt. Watson V.
Railroad Co.

454
The mere fact that a railroad
train was running at an unlawful
rate of speed at a public crossing
does not, of itself, constitute negli-
gence. There must be some other
element in the situation to consti-
tute negligence.

Ib.
Under circumstances stated in
preceding paragraph, the question
whether the whistle was blown with:
in the prescribed distance from the
crossing in question can not be prov.
ed by mere opinions of witnesses,
that it was blown for one crossing
or the other; such fact must be
proved by showing that the train
was within the limits and the
whistle was or was not blown. Ib.

The engineer of a railroad train
is required to use ordinary care to
ascertain if a person at а public
crossing is in danger; and by the ex.
ercise of that care to save him if he
can, but it is also the duty of a per-
son at the crossing to exercise ordi.
nary care on his part to avoid in.
jury when he finds himself in a crit-
ical place or can ascertain by the ex-
ercise of ordinary care that he is in
imminent danger. The two propo-
sitions form the complement of the
law on the subject.

Ib.
A man has the right to rely up-
on performance of duties which the
law imposes upon a railroad com.
pany at crossings, whenever it is not

The probate court is a court of
record, competent to decide upon its
own jurisdiction, and its records im-
port absolute verity. Carter Cattle
Co. v. McGillin.

146
See INSOLVENCY.

12

the northern boundary line to the
south bank of Mad river, “at low
water mark," when the water in the
river is at its average and ordinary
stage, during the entire year, with-
out reference to the extraordinary
freshets of the winter and spring or
the extreme droughts of the summer
or autumn.

Ib.
A board of education is liable
for damages where by its acts there
has been an invasion of the property
rights of a private party, as where
such board causes excavations to be
made to a greater depth than nine
feet, as provided in sec. 2676, Rev.
Stat., and thereby causes injury to
the foundations, walls or buildings
of an

adjoining property owner.
Volk v. Board of Ed.

35
The right conferred by sec. 2676,
Rev. Stat., of having the foundations
and walls and buildings secured
against damages resulting from ex-
cavations on adjoining property to a
greater depth than nine feet, is in
the nature of a property right; and,
therefore, whoever causes injury to
the foundation, walls or buildings of
another, invades or takes a property
right expressly given statute.

Ib.
The indebtedness of a devisee of
specific realty is not, without judg-
ment and levy by the executor, a
charge upon or set-off against the
realty so specifically devised. Wood-
ruff v. Snowden.

123

by

Railroads — Receivers.

RAILROADS-Continued.

apparent, to one exercising ordinary
care, that the company has not com-
plied with its duty. But where a
look would have revealed the fact,
and that danger was imminent, as
where, in broad daylight, at a cross-
ing where the track was straight
and the view unobstructed, and the
whistle of an approaching train was
blown for another crossing but could
be distinctly heard and the train
plainly seen from the crossing in
question, a person injured under
these circumstances cannot recover.

Ib.
The statute makes the failure
to blow the whistle within the pre-
scribed distance from a public cross-
ing a ground of recovery, but where,
within the statutory distance from
a crossing there is another crossing,
so that necessarily, in order to com-
ply with the law, the minimum dis-
tance at which the whistle could be
blown for the crossing in question
would be beyond the other crossing,
this fact puts the plaintiff upon proof
that a whistle blown beyond the first
crossing was not blown within the
statutory distance from the crossing
in question.

Ib.

REAL PROPERTY-

RECEIVERS-

In cities of the second grade of
the second class, the board of water-
works trustees is the creature of
council, and no act done by such
trustees can create an estoppel
against the city (Dayton), under
any claim the city may make as to
the title of real estate. Dayton v.
Hydraulic Co.

192
Exercising acts of ownership
over unimproved land, such as haul.
ing gravel, sand and dirt therefrom,
sinking wells, and making streets on
the same, shows sufficient possession
on the part of one claiming to be the
owner in fee of the land to maintain
an action to quiet title thereto un-
der sec, 5779, Rev. Stat.

Ib.
Where the call in a deed is, "in
and to the ground constituting the
bed of said river," (the same being
an unnavigable stream) the bed of
said river is the hollow basin
through which the water of the river
flows at low water mark.

Ib.
When the call in a deed is,
"Lhence southwestwardly along the
meanderings of the south bank of
Mad river," such description carries

Where a receiver was asked for
on the ground that a certain con-
tract between plaintiff and defend.
ant had been broken by defendant,
in the absence of sufficient evidence
showing that the contract claimed to
be broken, was made, the appoint-
ment of such receiver will be de-
nied. McCullough v. Mitchell. 704

When the receipts of property
under a receivership are not suffi-
cient to maintain the trust, it is the
duty of the receiver, for his own
protection, to apply to the court for
instructions, instead of voluntarily
continuing the trust and allowing
necessary claims to accumulate.
Weber v. Naltner.

96
A receiver cannot be com-
pelled to postpone present claims,
properly incurre by him. in order
to meet old claims incurred under
a prior receivership.

Ib.

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