« 이전계속 »
Offices and Officers - Partition.
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
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.
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.
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.
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
ligious training so provided for, and
he cannot he heard to say that the
well-being of the children demands
the violation of such
Luck, In re.
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.
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.
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.
and the burden is his, that all debts
and claims have been paid or secur.
ed to be paid. Schneider v. Cordes-
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.
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.
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-
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.
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.
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-
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-
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.
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
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.
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-
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.
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.
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
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
adjoining property owner.
Volk v. Board of Ed.
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.
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.