4. SUCH A WAREHOUSE IN A PUBLIC RIVER is a public nuisance, because it
obstructs navigation, and may be indicted as such, or abated without in.
dictment by any individual aggrieved by it. Id.
5. INDIVIDUAL CAN NOT APPROPRIATE part of a public highway to his exclu
sive use, though enough is left for the accommodation of others. Id.
6. ABATEMENT OF NUISANCE BY MUNICIPAL CORPORATION.—A municipal cor.
poration having authority to prevent obstructions in a river within its
bounds, may summarily remove such an obstruction as a public nuisance.
Id.
7. THIS POWER MAY BE EXERCISED BY AN ORDINANCE directing the officers of
the corporation to remove the obstruction. Id.
8. PARTY MAINTAINING A PUBLIC NUISANCE is not entitled to a jury trial in
summary proceedings for its abatement. Id.
9. MUNICIPAL CORPORATION can not ordain a forfeiture, seizure, and sale of a
floating warehouse constituting an obstruction in a public river, in case
the owner refuses to remove it, under a clause in its charter giving it
power to pass by-laws to prevent such obstructions, and to enforce the
same by penalties not exceeding a certain sum. Per Edmonds. Senator.
See JUDGMENTS, 19; PLEADING AND PRACTICE, 18.
1. OFFICIAL CHARACTER, GENERAL REPUTATION AS EVIDENCE OF.-The offi
cial character of all public officers may be established, at least prima
facie, by evidence that they have been generally reputed to be and have
acted as such, without production of their commissions. McCoy v.
Curtice, 113.
2. SCHOOL DIRECTORS AND TRUSTEES, being regular public officers, are within
this rule. Id.
3. THE DEPUTY OF AN OFFICER IS LIABLE, as well as his principal, for
tortious acts, done under color of the latter's authority. Coltrane v.
McCain, 256.
4. THE PRINCIPAL IS ALONE LIABLE for non-feasance of the duties of his
office. Id.
See COSTS; EXECUTIONS, 28; JUDICIAL LIABILITY; SCHOOLS; Warrant of
ORPHANS' COURT.
See PARTITION, 3.
See LEGACIES AND LEGATEES, 13.
1. EVERY PARTITION AS WELL AS EVERY EXCHANGE implies not only a war-
ranty at the election of the party, but a condition entire, the breach of
which gives an entry into the whole; with this difference, however, that
a voucher to warranty of the part evicted, affirms the partition by the
acceptance of a compensation, while an entry for the condition broken
defeats it. Feather v. Strohoecker, 342.
2. IN EJECTMENT TO AVOID A PARTITION, a defendant who is at the same
time heir of one of the original tenants in common, and widow of the
son of another co-tenant, under whom the son entered, is not precluded
from defending, because of her character of tenant. Id.
3. THE ORPHANS' COURT HAS NOT JURISDICTION to decree a partition between
the children and their father's co-tenant, and then between the children
themselves. Id.
1. CONVEYANCE BY A TENANT IN COMMON AND PARTNER of his moiety of
the common land upon which he is carrying on the farming business in
partnership with his co-tenant, dissolves the partnership and renders his
grantee tenant in common with the other partner in the partnership
property. Mumford v. McKay, 34.
2. GRANTEE TAKES HIS GRANTOR'S UNDIVIDED SHARE of the surplus of the
partnership property after the partnership debts and the claims of the
copartner are satisfied. Id.
3. GRANTEE MAY MAINTAIN TROVER against his co-tenant, in such a case,
where the latter sells the whole of the joint property, unless the defend.
ant can show that there were outstanding partnership debts, and the
burden of doing so rests upon him. Id.
4. THERE IS NO PARTNERSHIP IN REALTY, but partners are tenants in com.
mon in land. Baker v. Wheeler, 66.
WHERE TENANTS IN COMMON OF TIMBER LAND are partners in the lum-
ber business, they are partners in the timber on such land when con-
verted into logs. Id.
6. PARTNERS IN A COPY-RIGHT may contract between themselves for the
printing of the book by one of them in a particular manner, and the ex-
istence of such partnership can not be set up to defeat a right of action
growing out of the contract. Gould v. Banks, 91.
7. UPON A DISSOLUTION OF A FIRM by the death of one of the partners, the
survivors may give a preference with the consent of the personal repre-
sentative of the decedent. Egberts v. Wood, 236.
8. WHETHER One of the ParTNERS, during the existence of the partner-
ship, may, against the consent of his copartners, assign the partnership
effects in the name of the firm for the payment of a firm debt, whereby
a preference is created, quære. 1d.
9. EFFECT OF DISSOLUTION OF PARTNERSHIP by death of one of the mem-
bers, is to vest the legal title to the choses in action and the debts in the
surviving partners as joint tenants under the law merchant. Id.
10. JUS ACCRESCENDI among partners means that the survivor holds the
partnership funds for the settlement of the partnership concerns, and
the balance for equitable distribution among the personal representatives
of the decedent and the survivor. Id.
11. A DECEASED PARTNER'S REPRESENTATIVE may insist that the partner-
ship effects shall be applied to the debts of the firm. Id.
12. A DECEASED PARTNER'S REPRESENTATIVE has no interest in the question
as to what debts shall be paid first, where the partnership funds are in-
sufficient to pay the whole. Id.
13. ON THE DISSOLUTION OF A FIRM by death of a member, neither sur-
vivor can, without the co-survivor's consent, assign the whole interest in
the partnership effects to trustees for the benefit of preferred creditora
Id.
14. CO-PARTNERSHIP EFFECTS upon the firm's insolvency are in equity con-
sidered a trust fund for the payment of the partnership debts. Id.
15. EITHER OF THE PARTNERS BEFORE THE DISSOLUTION of the firm, or all
of them afterwards, may appropriate the partnership funds to the pay.
ment of one creditor in preference to another. Id.
16. AN ASSIGNMENT BY A SURVIVING PARTNER of the partnership effects
transfers to the assignee that partner's interest, and makes the assignee
a tenant in common with the other surviving partner. Id.
17. PARTNERSHIP CREDITORS ARE ENTITLED TO PRIORITY OF PAYMENT out of
the partnership effects, and the separate creditors of the individual part-
ners may claim a priority of payment out of their separate assets. Id.
See COMMON CARRIERS, 7; CORPORATIONS, 3.
1. THE PAYMENT OF A JOINT DEBT, by one of the obligees, discharges it as
to all. Sherwood v. Collier, 264.
2 A PAYMENT BY A JOINT DEBTOR is regarded in the light of a purchase,
where, for the purpose of keeping the joint security alive, he takes an
assignment in the name of a stranger. Id.
3. DEBTOR'S POSSESSION OF HIS BOND is evidence of its satisfaction by him-
self. Craig v. Craig, 390.
4. POSSESSION OF BOND BY One of SeveraL OBLIGORS is not evidence that he
has paid the whole. Id.
5. A PROMISSORY NOTE given and received in payment of an antecedent ac-
count, is a bar to an action on the account, whether the note is paid or
not. Hutchins v. Oleutt, 634.
6. A PERSON ACCEPTING A NOTE IN SATISFACTION of his debt, is paid by his
own agreement, and can not sue for his original debt, if there was no
fraud or deception in giving the note. Id.
7. WHERE A NOTE IS GIVEN FOR WORK BESTOWED on articles, and a receipt
returned "Received payment by note," such receipt is prima facie evi-
dence of the payment of the account. Id.
PENAL LAWS.
See CONFLICT OF LAWS.
1. THE GRANT OF A PEW IN PERPETUITY does not give to the owner an abso-
lute right of property, but simply entitles him to the use of the pew,
for the purpose of sitting there during divine service. First Baptist
Church v. Witherell, 213.
2. PEW OWNER MAY MAINTAIN CASE, trespass, or ejectment, according to
circumstances, if he is improperly disturbed in his right to the use of
1. CORPORATION PLAINTIFF MUST PROVE ITS DUE INCORPORATION by com.
petent authority where the general issue is pleaded. Welland Canal Co.
v. Hathaway, 51.
2 NON-JOINDER OF PARTIES.-Where it is not apparent from a bill itself
that necessary parties are omitted, it can be taken advantage of only by
plea or answer, showing who are the necessary parties, and making the
objection of a want of parties in a plain and explicit manner. Robinson
v. Smith, 212.
3. DEFENDANTS CAN DEMUR FOR NON-JOINDER OF PARTIES only when it is
apparent from the bill itself that there are other persons who ought to
have been made parties.
Id.
THE OBJECTION OF MULTIFARIOUSNESS can not be sustained where the
complainants have similar interests, and seek the same redress for a com-
mon injury. Id.
5. WHERE SEVERAL PERSONS HAVE A COMMON INTEREST, arising out of the
same transaction, although their interest is not joint, even the defendant
may sometimes insist that they shall all be made parties, that he may be
subjected to the trouble and expense of but one litigation. Id.
6. THAT A DISCOVERY MAY OCCASION THE FORFEITURE OF A CORPORATE
CHARTER, is not sufficient to support a general demurrer to the whole
bill against the directors, even if it would have authorized a demurrer to
the discovery of particular facts. Id.
7. IDEM.-A bill filed prior to the revised statutes, by the stockholders
against the directors of an incorporated company for fraud and misman.
agement, should make the corporation party either plaintiff or defendant.
Id.
8. DEMURRER ORE TENUS was allowed upon payment by the defendants of
the costs of the demurrer; but the complainants were permitted to
amend. Id.
9. WHERE THERE ARE Several CREDITORS OR LEGATEES who have a com-
mon interest, and are entitled to share in a fund insufficient to pay all in
full, they should be made parties, or the suit should be brought by some
on behalf of themselves and of all others similarly situated, and it should
be so stated in the bill. Egberts v. Wood, 236.
10. TO LEAVE TO THE JURY THE FINDING of a fact without color of proof,
is error. Whitehill v. Wilson, 326.
11. THE PRODUCTION OF THE BOND is an indispensable part of the plaintiff's
case in an action for contribution among obligors, where the joint indebt-
edness has been disputed. Craig v. Craig, 390.
12. WRIT OF ERROR CORAM NOBIS, is the proper remedy to enable a party
against whom a judgment has been taken on motion and without notice,
to be relieved in the same court by showing error of fact. Wynne v.
Governor, 448.
13. MATTER IN MITIGATION OF DAMAGES need not be specially pleaded. Joy
v. Hull, 625.
14. PAYMENTS MADE PENDING AN ACTION on a promissory note are to be de-
ducted from the judgment. Id.
15. BILL OF EXCEPTIONS EMBODYING ALL THE FACTS and circumstances upon
which a court pronounced judgment upon the question of the compe
tency of evidence, is the proper mode of presenting to an appellate
court any supposed error of the court below in admitting such evidence;
for if no exception be taken, or if it do not appear what evidence was
given to the judge, upon which to determine such question of compe-
tency, all will be presumed to have been legal and right. l'ass v. Com-
monwealth, 695.
16. THE NON-JOInder of a Co-DEFENDANT in an action ex contractu can only
be taken advantage of by plea in abatement. Jones v. Pitcher, 716.
17. Verdicts at COMMON LAW might in actions ex delicto be separate, but in
actions ex contractu must have been joint. Id.
18. AN ENTRY NUNC PRO TUNC of an order of change of venue at a term sub-
sequent to that in which the order was made, is proper in a case where
the omission of the entry at the proper term was due to negligence in
the clerk. Davis v. Hooper, 751.
19. SURETIES TO AN OFFICIAL BOND are proper parties to a suit brought upon
a breach of the condition of the bond, though neither the fact nor
amount of their principal and liability has been established by previous
suit. Governor v. White, 763.
20. THE BREACH OF AN OFFICIAL BOND is sufficiently assigned by negativing
the words of the covenant therein.
21. IN SUIT UPON ONE OF TWO DEPENDENT COVENANTS there must be al-
leged of the other either a performance, an offer of performance, or a
readiness to perform. Castleberry v. Pierce, 774.
See BONA FIDE PURCHASERS, 1; LIENS, 8; MALICIOUS PROSECUTION; TENDER, 4.
POWER OF ATTORNEY.
See AGENCY, 3.
POWER DELEGATED TO TWO OR MORE for a private purpose, must be exe-
cuted by all; but in matters of public concern a majority may act if all
are present. McCoy v. Curtice, 113.
RIGHT TO OVERFLOW A PARTY'S LAND may be acquired by prescription so
as to bar any action for the injury to the land. Mills v. Hall, 160.
PRINCIPAL AND AGENT.
See AGENCY.
PRINCIPAL AND SURETY.
See SURETYSHIP.
1. PROBABLE CAUSE is generally a mixed question of law and of fact. French
v. Smith, 616.
2. TO MAKE OUT a Probable CauSE, it is sufficient if the party has reasona
ble ground for belief at the time of acting. Statements made by third
persons to the defendant may be introduced, in order to show probable
cause. Id.
See MALICIOUS PROSECUTION.
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