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court, will be considered as waived.-Ad- debt contracted by the company in July.-
ams v. Edgerton, (Ark.) 628.
Butler v. Henry, (Ark.) 878.
4. Participation in the profits of a firm
is prima facie evidence of partnership, and
it becomes conclusive, as to third persons,
By judicial proceedings—Jurisdic- when not rebutted by evidence showing
such participation to be in place of com-
1. As a general rule, there can be no par. v. Altheimer, (Mo.) 858.
pensation for services.-Fourth Nat. Bank
tition in an action to settle a disputed title
to land; but, where the court of chancery Firm property.
has possession of the case on some clear 5. Real estate sold at a judicial sale was
ground of equity jurisdiction wholly dis- knocked down to A. and B., partners, A.
tinct from partition, then the cause may having bid it in in pursuance of an under-
be retained for partition.-Hankins v. standing between him and his partner to
Layne, (Ark.) 821.
buy it for the firm. In order, however, to
avoid the necessity of getting outsiders to
2. In an action for the partition and sale they had the sale entered in B.'s name, and
go on the bonds for the purchase money,
of the real estate of a decedent, and the he signed the bonds as principal, and A.
distribution of the proceeds among his
heirs, it appeared that one of the heirs had as surety.. Held, that the real estate was
partnership property. - Seiler v. Brenner,
given a deed of trust upon his interest to (Ky.) 796.
der such deed had died. Held, that his ad- Rights of partners inter se.
ministrator was a necessary party.-Har 6. One partner is not entitled to com.
bison v. Sanford, (Mo.) 20.
pensation from the partnership for his
services in attending to the partnership
affairs, unless there is a contract therefor
3. A decree in a partition suit, being er express or implied. — Gaston v. Kellogg,
roneous as to one defendant, must be re-
versed as to all.-Kremer v. Haynie, (Tex.)
7. A partner who furnishes the money to
purchase cattle for a partnership, which
Accounting, see Arbitration and Award, 3. are to be owned in equal shares, and after-
Arbitration, sharing losses, see Arbitration the cattle without making any sale of his
wards sells his undivided half interest in
and Award, 5.
Fraud, change in firm and assignment against his partner, thereby dissolves the
interest in the partnership or of his claim
operating as, see Assignment for Benefit partnership, and loses his lien on the cattle
of Creditors, 1.
Notice of protest, see Negotiable Instru- fer by him of his share of the partnership
owned by his partner, nor does the trans-
Parties, dormant partners as, see Parties, 1. property, transfer any equity he might
have against his partner.-Moore v. Steele,
1. Any declaration or conduct on the
part of several that would induce others to
consider them as partners will render them See, also, Subrogation.
liable as such.-Harris v. Sessler, (Tex.) In county scrip, see Taxation, 13.
2. A secret partnership exists where one Acceptance of negotiable paper.
is really participating in the profits and 1. Proof that a joint maker of a note
logs of an enterprise carried on by an- gave, in payment thereof, his check on a
other, and withholds a knowledge of the bank where he had no funds, and that the
fact from the public. An ostensible part. holder surrendered the note for such check,
nership exists where one who has no actual will not sustain a plea of payment.--Henry
interest in a firm says he is a partner, or sv. Conley, (Ark.) 181.*
knowingly permits the firm to use his
name in any manner in order to obtain
2. A payment will not be applied to usu-
rious interest without the debtor's con.
sent.-Edwards v. Rumph, (Ark.) 635.
3. Evidence that A. was a partner in a
certain company in September, and, as
such, signed contracts reciting a contract
made by the company in March, is not Jurisdiction of justice, see Justice of the
competent in order to charge him upon a Peace, 1.
Covenant, action on, see Corenant.
Judgment, under prayer for general relief,
see Fraudulent Conveyances, 14.
1. Perjury may be assigned upon a false Justice's court, pleadings in, see Justices of
statement affecting only a collateral issue, the Peace, 5.
as that of the credit of the witness. Motion to strike out, when proper, see Par-
Washington v. State, (Tex.) 228.
2. A county clerk having authority to ad. Pleading and proof, see Eminent Do-
minister oaths, but not being required, main, 3.
upon an application for a marriage license, Railroads, stock-killing cases, see Railroad
to take an affidavit as to the age of the par Companies, 12-14.
ties, the making of a false affidavit upon Suretyship, action on bond, see Principal
that subject will support an assignment
and Surety, 1.
for false swearing, but not for perjury.-
Davidson v. State, (Tex.) 662.
3. Upon trial of an indictment against A.
1. Under the rule that, where a party fails
for falsely swearing, in applying for a mar-
to aver a fact, which, if true, is important
riage license, that his fiance was 18 years to a recovery. on his part, such fact will be
of age, false testimony given by B. that the taken in the light most adverse to the plead-
girl picked cotton with him i3 years be- er, in an action against an insolvent and
fore, and was then a big girl, is perjury.- bis assignee for the benefit of creditors, it
will be assumed that the assignment con-
tained a provision exacting releases from
accepting creditors where the contrary
4. In Texas, under Code Crim. Proc. art. view is important to the plaintiff's right of
746, a conviction cannot be had unless upon recovery, and he has made no averments
the testimony of at least two credible wit. thereon in his pleadings.-Mills v. Swear.
nesses, or one credible witness corrobo-ingen, (Tex.) 268.
rated strongly by other evidence.-Wash-
ington v. State. (Tex.) 228.
5. A. was indicted and tried for illegally 2. In an action to recover the value of a
branding a calf alleged to belong to B. draft intrusted to defendant, an attorney,
Upon the trial of B. for perjury, alleged to for. collection, & complaint as follows:
have been committed by him upon that Plaintiff states that in the spring of 1875
trial, held, that a judgment in B.'s favor, he delivered defendant a check or draft
in a civil suit brought against him by A. upon S. & M. for $125, and directed him to
for the calf, was not admissible in evidence send the same to P. Bros., Watson, Ark.,
on behalf of B., when offered generally.- for collection, and, before the same had
Hill v. State, (Tex.) 764.
been sent by defendant, plaintiff called
6. If, upon trial' for perjury, the judg- upon defendant, and gave him some direc-
ment in the proceeding in which the per- tions, but the defendant wholly disre.
jury is alleged to have been committed is garded the requests and directions of the
admitted on behalf of the prosecution, the plaintiff, and sent said draft to one M., in
court should give instructions limiting the Arkansas: that, by reason of the conduct
effect of the evidence.-Davidson v. State, of the defendant in disobeying the orders
and directions of the plaintiff, the plaintiff
7. Upon trial for perjury, the state may is damaged in the sum of fifty dollars, for
show by the attorney in the case in which which he asks judgment,”—is sufficient to
the perjury is alleged to have been com- apprise defendant of the nature of plain-
mitted why he called defendant as a wit- tiff's claim, and the extent of the damages,
ness in such case, in order to show, if pos- and to support a judgment, and bar another
sible, that the false statement was made action.-Butts v. Phelps, (Mo.) 218.
with premeditation; Pen. Code Tex. art. 3. In an action to recover for breach of a
189, making it a defense if the false state-contract, it is sufficient for plaintiff to al-
ment was made by mistake, through inad. lege a general compliance with the con-
vertence, or under agitation.-Id.
tract on his part, without alleging specific-
ally and in detail the performance of every
act required to be done by him.-Long v.
McCauley, (Tex.) 689.
See, also, Damages, 4, 5; Ejectment, 4; Gar- Amendment-Notice of filing.
nishment; Indictment and Information;
Justices of the Peace, 5; Quo Warranto, 1, 2. in an action, the only notice to him of the
4. Where a party has pleaded or demurred
Service of process after amendment, see filing of an amendment by the opposite
party that is necessary is the order of court
Bankruptcy, discharge in, see Bank- granting leave to file the amendment.-
Rabb v. Rogers, (Tex.) 303.
Pleading and proof-Variance. | Infancy, appointment of agent by infant,
5. Under an allegation of negligence on see Infancy, 4.
the part of a railroad company in failing to Insurance agent, authority of, see Insur-
prepare, fix, and keep in repair a good, ance, 3, 4.
safe, and substantial crossing at a certain Insurance agent exceeding his authority,
place, and the further allegation that the see Insurance, 2.
crossing is defective, rotten, and insuffi- Negotiable instruments, signing by agent,
cient, it is admissible to show that it is de see Negotiable Instruments, 1.
fective by reason of the planks being laid Ratification.
too far apart.-East Line & Red River R.
Co. v. Brinker. (Tex.) 99.
1. If a bank appropriates certain bonds
6. Under the issues as made by the plead- purchased by its cashier to its own use, it
ings, the inquiry was as to the damages, if cannot thereafter repudiate the authority
any, sustained by the defendant by reason
of the cashier to make the purchase, in a
of the taking of his land by the plaintiff suit by the vendor of the bonds on the con-
railroad company for the right of way of tract: Logan Co. Nat. Bank v. Townsend,
its road; and upon the trial plaintiff offered (Ky.) 122.*
to prove an arbitration. Held, that the of.
2. Where a railroad company allows a
fer was properly rejected, the arbitration person to hold himself out and act as its
being new maiter in bar, and, as such, general freight agent for a year or more,
should have been set up by appropriate it will be bound by bis contract to furnish
pleading:-Springfield & S. Ry. Co. v. Calk. cars for transportation of the live-stock of
ins, (Mo.) 82.
& party who deals with him as the agent of
Waiver of objection.
the company.—Baker v. Kansas City, S. J.
& C. B. R. Co., (Mo.) 486.
?. In an action to recover the purchase 3. Where an agent borrows money in or-
price of land sold, the plaintiff should al. der to redeem the principal's property
lege that he had a good title to the land, from an execution sale, and procures con-
and should set it out. But the error is veyances of the property to the lender as
cured by defendant's answer admitting security, in an action by the principal to
plaintiff bad good title, and taking issue have the deeds declared a mortgage and to
only on the question of the number of redeem, the lender cannot complain that
acres contained in the tract.-Barnes v. there was no privity between the agent
Jackson, (Ky.) 601.
and plaintiff, when the deeds show upon
their face the plaintiff's ownership.
Robinson v. Lincoln Sav. Bank, (Tenn.)
Mortgage, power of sale, see Mortgages, 11.
Trusts, powers implied under trust, see
Liability of principal to third per-
Trusts, 6, 7.
Restraint on alienation, see Will, 3.
4. In an action for services, brought by a
station agent against a railroad company,
PRACTICE IN CIVIL CASES.
the defendant pleaded as a counter-claim
an amount of missing funds of the com-
See Appeal; Courts; Equity; Judgment; pany collected at plaintiff's station, and not
Jury; Nero Trial; Removal of Causes; accounted for. Held, that plaintiff could
not show that the misappropriation was
the act of the clerk and telegraph opera-
Transfer from equity to law docket. tor at the station, who were his agents, but
Bringing a suit in equity, when the that he was liable for their default.–St.
proper remedy is ejectment, is not cause Louis, I. M. & S. Ry. v. Smith, (Ark.) 364.
for dismissal of the suit, but only for trans-
ferring it to the law docket; and, if no mo-
PRINCIPAL AND SURETY.
tion is made to correct the error, the court
may transfer the cause of its own motion, See Bonds.
or proceed to trial upon the merits. Alteration of signatures, see Alteration of
Catchings v. Harcrow, (Ark.) 884.
Administrator's bond, discharge of princi-
pal in insolvency, see Executors and Ad-
See Limitation of Actions.
liability of surety, see Executors and
PRINCIPAL AND AGENT. Evidence, documentary, conversion of
funds by principal, see Evidence, 15.
Evidence, parol, to explain agent's con. Evidence of principal's default, see Evi
tract, see Evidence, 21.
Execution, liability of surety on stay-bond, of office, and, upon entering on his third
see Execution, 2.
term, instead of paying up the deficit, he
Judgment on bond, amendment of, see merely charged it against himself. Held,
this did not have the effect to release the
Offcial bond, governor as surety, see Alter- sureties on his bond for the second term
ation of Instruments, 3.
from liability for such deficit, and impose
Promissory note delivered contrary to the liability on the sureties for his third
agreement, liability of surety, see Nego- term.-State v. Churchill, (Ark.) 880.
tiable Instruments, 2.
Remedies of surety.
Liability of surety.
6. In an action between an attaching
1. Sureties on the bond of a treasurer of creditor and one claiming property as a
: benevolent association are not liable for bona fide purchaser from the debtor, the
any conversion of funds by their principal, issue being as to whether the transfer was
made prior to the execution of the bond; made in good faith, although the claimant
and when the bond was executed on Jan. abandons the issue, the sureties on his
uary 21, 1883, and suit was instituted to re- claim-bond may intervene and defend his
cover for the conversion of moneys which rights, and judgment may in such case be
came into the treasurer's hands January 1, rendered in behalf of the sureties, although
1885, a complaint alleging only that the it inures to the benefit of the claimant, who
conversion occurred at and before July 24, had not presented his claim.-Boehm v.
1885, is demurrable.-Barry v. Screwmen's Calisch, (Tex.) 293.
Benev. Ass'n, (Tex.) 261.
2. When the conditional nature of the Privileged Communications.
signature of a surety to a bond is apparent
from the face of the bond itself, or is See Witness, 6, 9.
brought to the knowledge of the obligor
by extraneous evidence before its accept-
ance, the plea of conditional execution is
a good defense to an action on the bond;
See Negotiable Instruments.
other ise not.-State v. Churchill, (Ark.)
3. A state treasurer during his first term See Grants.
of office misappropriated $159,000 of state Limitation, when statute commences to
bonds belonging to a certain “bond ac-
count," and, during his second term, the
run, see Limitation of Actions, 7.
sum of $45,000 of bonds belonging to the Sales.
same account. Afterwards, but during his A contract by which one party agrees
second term, he caused a certain amount of to furnish half the government price of
state scrip to be canceled, and of this land, and of improving the same, in con-
amount of canceled scrip he, with the con. sideration of the other party pre-empting
sent of the proper state committee, caused and conveying half the land to him after
$145,000 to be transferred generally to his title acquired, is in contravention of Rev.
"bond account.”. Held, in a suit against St. U. S. & 2262, prohibiting the sale of pre-
the sureties op his bonds for the first and emption claims, and void.- Marshall v.
second terms, that there was no aprropria Cowles, (Ark.) 188.
tion in settlement of the “bond account" of
either term, but that a court of equity
would apply the $145,000 in settlement rat-
ably between the terms.-Id.
"Option deals," see Contracts, 5.
Discharge and release of surety.
4. A bond given to secure a municipal cor-
poration the amount of money to be paid Qui Tam and Penal Actions.
by one appointed public weigher is a bond Intoxicating liquors, sale of, without
single for the payment of money, within
license, see Intoxicating Liquors, 6.
the meaning of Mansf. Dig. Ark. 8 6400,
limiting the application of sections 6398,
6399, and a surety on such an obligation
will be free from his liability, as provided Corporation, forfeiture of franchise, see
in Mansf. Dig. SS 6398, 6399, on the failure
of the obligee to begin action against the Turnpike company, effect of forfeiture of
principal for the amount within 30 days
franchise, see Turnpikes, 9.
after the service on him of notice so to do.
— Town of Monticello v. Cohn, (Ark.) 30.
5. A state treasurer was delinquent in 1. In an information asking for proceed-
his accounts at the end of his second term ings in quo warranto to place relator in the
office of county treasurer, and to oust de- Eminent domain.
fendant therefrom, an allegation that such 3. Where judgment of condemnation in
relator was a citizen of the county, and en proceedings by a railroad company under
titled to tbe office of county treasurer, is its charter was reversed on appeal to the
a sufficient averment, as to his being quali- supreme court, and remanded, because of
fied to hold the office, against a general de a failure to comply with conditions pre-
murrer.-Fowler v. State, (Tex.) 255. cedent to the exercise of the right of emi-
2. In such proceedings an allegation that nent domain, the company obtained no
the relator received a majority of the bal. vested interest in the land by the judgment;
lots of the qualified voters of the county is and a general railroad act having been en-
sufficient, without setting forth the facts acted, which operated as a repeal of the
which constituted their qualifications.-Id. powers granted by the charter, proceedings
under the remand should be taken under
3. An attorney who is appointed by the the general statute, and if taken under
court, under Code Crim. Proc. Tex. art. 39, special charter are void. - Treacy v. Eliza-
during the absence of the district attorney,
bethtown, L. & B. S. R. Co., (Ky.) 168.
is the proper person to file an information Regulation of charges.
for a quo warranto, and the authority of an 4. Under Rev. St. Tex. arts. 4257, 4258,
aitorney so appointed cannot be collater- and the acts of April 19, 1879, and April 10,
ally attacked.-Fowler v. State, (Tex.) 255. 1883, amendatory thereof, limiting freight
rates to be charged by railroads to 50 cents
per 100 pounds per 100 miles, and giving
RAILROAD COMPANIES. the right to recover a penalty of $500 from
railroad companies for willful discrimina-
See Carriers; Negligence, 11, 14–16, 18. tion in freight charges after refusal for 20
Carrier, refusal to transport freight, see charge, a notice and refusal to refund are
days, upon notice, to refund the over-
Contract of agent, liability of company, the 50-cent rate is made.- Woodhouse v.
only required where a charge exceeding
see Principal and Agent, 2.
Rio Grande R. Co., (Tex.) 323.
Eminent domain, mandamus to enforce
right, see Mandamus, 2, 3.
measure of damages, see Eminent Do. 5. It is the duty of the engineer in charge
main, 3, 4.
of a train to use increased vigilance while
variance in proceedings, see Plead- the train is moving through a town or city
or other place, where pedestrians have, by
Evidence in stock-killing cases, see Evi- license or custom, a right to be; and such
duty is violated by sending a car forward,
Master and servant, contract relieving com- through a town or other such place, of its
pany of liability for accident, see Master own impetus, without any one in charge to
and Servant, 1.
control it. --Shelby's Adm'r v. Cincinnati,
Negligence, contributory, see Negligence, N. 0. & T. P. Ry. Co., (Ky.) 157.*
6. A railroad is under no obligation to
for what liable, see Negligence, 18. keep the whole right of way within the
to employes, see Master and Servant, 5. view of employes managing trains; and, in
Service of process on, see Writs, 4. an action against a railroad company for
injury to a mule by a moving train, the
fact that a clump of bushes was allowed to
1. A railroad company cannot transfer grow on the defendant's right of way, be-
or lease the right to operate its road so as hind which the mule was standing till
to absolve itself from its duties to the pub- frightened onto the track by the approach
lic, without legislative authority: nor will of the engine, does not constitute negli-
a lease duly authorized by law release the gence.-Kansas City, S. & M. Ry. Co. v.
company from liability for a failure to dis. Kirksey, (Ark.) 190.
charge its charter obligations, unless the 7. A railroad is liable for the insuffi.
law giving the power to lease contains also ciency of its culverts, in case of an over-
a proviso to that effect.-Central & M. R. flow, if, although the overflow was ex-
Co. v. Morris, (Tex.) 457.
traordinary, it might reasonably have been
2. Const. Tex. art. 10, $ 5, providing that anticipated and provided against.-Gulf, C.
no railroad, nor the lessees thereof, shall I & S. F Ry. Co. v. Pomeroy, (Tex.) 722.
consolidate with any other having a paral 8. In an action to recover statutory dam-
lel or competing line, is a restriction upon ages against a railroad for negligence,
the power of railroads, and is not to be held, that an ordinance of the city of St.
construed as an implied grant of the right Louis, which requires that, when moving
of a railroad to lease its line to another within the city limits, the bells of locomo-
tives shall be constantly sounded, and, if