NEGLIGENCE. See BALMENT.

COMMON CARRIER, 10, 11. MASTER AND
NATIONAL BANKS,

SERVANT, 11, 13. MUNICIPAL CORPORATION, 1, 11, 13.

5, 6. RAILROAD, 4, 6, 8. SHIPPING, 2.

1. Is the omission to use the means reasonably necessary to avoid injury to
others. Railroad Co. v. Johnson, 117, and note.

2. To maintain action for, there must be fault on part of defendant and no
want of ordinary care on part of plaintiff. Difference between ordinary and
slight negligence. Comparative negligence. Id.

3. Aside from statutory or municipal regulation, no rate of speed at which
railroad train may be run is negligence per se. Powell v. Railway, 485.

4. In clear case of contributory negligence the court should direct jury to
find for defendant. Id.

5. If negligence of railroad company contributes to injury, company is
liable, even though negligence of fellow-servant also contributes. Railway Co.
v. Cummings, 285.

6. When bowl is set by landlord in tenant's room for his exclusive use, with
apertures insufficient to carry off all water delivered by faucet if left open,
and this defect and tenant's negligence in using bowl are together the cause of
damage, liability of landlord is that of owner as distinguished from that of
occupant. McCarthy v. Savings Bank, 285.

7. Landlord does not insure against tenant's negligence, nor does his liabil-
ity follow from fact that building does not contain most improved system of
water pipes. Id.

8. That boy between six and seven was upon railroad track at or near street
crossing, though his father had shortly before seen him going toward track,
not enough to establish contributory negligence as matter of law. Johnson v.
Railroad, 148.

9. One who places in hands of child article known to be dangerous, is liable
for natural and probable result of his act, although there be an intervening
agency. Binford v. Johnson, 50, and note.

10. Act in direct violation of criminal statute negligence per se. Id.
11. Liability for injury received by child while trespassing. Id, note.

12. Railroad company liable, notwithstanding negligence of intestate, if or-
dinary care was not exercised by its employees after they knew of intestate's
negligence. Beems v. Railroad Co., 148.

13. Natural effects of tort are those which might reasonably be foreseen;
proximate effects those between which and the tort there intervenes no culpable
and efficient agency. Mere failure by third parties to extinguish fire started
through negligence of defendant, not such agency. Wiley v. Railroad Co.,

148.

14. Where passenger is injured by mutual negligence of servants of com-
pany on whose train he is rightfully travelling, and of servants of another com-
pany with whom he has no contract, action may be maintained against either
company. Railway Co. v. Shacklet, 421.

15. No legal presumption that railroad company, while in exercise of lawful
right to run its locomotives and trains over its road and to use fire in so doing,
will not permit fire to escape. Palmer v. Railway, 485.

16. That railroad company uses good machinery and most approved ap-
pliances to prevent escape of fire, and has careful and competent men in charge,
will not, in case fire does escape of itself, rebut prima facie inference of
negligence. Id.

17. Railroad companies must use reasonable precautions to prevent fire being
carried against all except extraordinary and unusual winds. Id.

18. Where obstruction in street is in plain view of driver of vehicle, and he
drives against it, he is guilty of contributory negligence, and it is no answer to
say that his attention was taken up with looking above ground to direct team.
Yahn v. City, 644.

19. That woman sixty-seven years old, injured by being knocked down by
horse and wagon, while crossing street on some flagstones at junction with two
other streets, all much travelled, in compact part of city, did not, before and
while crossing, look up or down the street but straight ahead, is not conclusive
evidence of want of due care; question is for jury. Shapleigh v. Wyman, 690.

NEGLIGENCE.

20. Person sailing in his yacht on Lord's day in violation of statute, if run into by steamboat, can only maintain action if act of those in charge of steamboat was wanton and malicious. Wallace v. River Nav. and Ex. Co., 691.

21. Freight car was left standing on side track so near main track as to make collision inevitable. Passenger was sitting with elbow on sill of open window resting his head on his hand. Corner of coach struck freight car so that it jarred the passenger's elbow outside window and his arm was crushed between the two cars. Held, that he was not guilty of contributory negligence. low v. Kelly, 421.

NEGOTIABLE INSTRUMENT.

1. Overdue coupon of municipal bond which has not matured, is. Thompson v. Perrine, 221.

Far

Town of

2. Transfer after maturity, of interest coupons payable to bearer on day named, only passes title of transferror. McKim v. King, 77.

NOTARY PUBLIC. See BILLS AND NOTES, 27.

CRIMINAL Law, 27.

NOTICE. See ATTACHMENT, 8. BANK, 2. MORTGAGE, 5. MUNICIPAL CORPORATION, 11. RAILROAD, 12.

SURETY, 1.

Purchaser is not chargeable with constructive notice of all instruments and incumbrances of record, but only of such as lie in apparent chain of title. Grundies v. Reid, 815.

NOVATION. See DEBTOR And Creditor, 7

NUISANCE.

16, 17.

See EQUITY, 15.

INJUNCTION, 4. MUNICIPAL COrporation,

1. Ringing at early hour (to arouse boarding-house keepers or operatives living with them) of bell weighing 2000 pounds and set in open tower 40 feet from ground, and so situated as to residences owned and occupied before erection of bell, that they receive full force of sound, the inmates being deprived of sleep and their comfort impaired, is a private nuisance; and mill owner may be restrained by injunction, the ringing not being shown to be necessary or reasonable; and evidence of custom to so ring bells in other places is inadmissible. Davis v. Sawyer, 349.

2. NOISE AND VIBRATION AS ELEMENTS OF NUISANCE, 625.

OFFICER. See ATTACHMENT, 2, 3, 6, 7. ATTORNEY, 1.

SHERIFF, 2.

PROHIBITION, 2.

1. Town marshal may be bailiff. Constable cannot be sheriff, deputy sheriff or clerk of superior court, but may be marshal. Lewis v. Wall, 549.

2. Where officer is called upon by nature of service, to make an inquiry and investigation after process comes into his hands, he is only required to exercise reasonable care, skill and diligence in so doing. Street v. Pennell, 285.

3. A sheriff who erroneously certifies in levy on land that appraisers were disinterested, is not liable in absence of negligence. Id.

4. Remedy for such error is in motion for leave to amend return, and in power of court under such motion, to extend necessary relief. Id.

5. In absence of constitutional or legislative restriction, where no definite term of office is prescribed by law, power of removal is incident to power of appointment, and that power is sole judge of existence of cause. Patton v. Vaughan, 422.

6. In action on treasurer's official bond, his settlement with county court is conclusive. Hunnicutt v. Kirkpatrick, 422.

ORDINANCE.

1. Charter and ordinances of city stand in same relation as constitution and statutes of state. Quinette v. City, 485.

2. Where city charter provided that judges of election should receive no pay, and repealed all inconsistent ordinances, Held, that ordinance providing for pay of judges and clerks was repealed only as to judges. Id.

PARENT AND CHILD.

1. Father of infant child is entitled to its custody rather than mother; and

PARENT AND CHILD.

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 fraudently obtained by acts done to affect prisoner's health and representations concerning it. Knapp v. 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 decreed, 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.

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 volunteers or purchasers with full notice, no such decree will be made. PARTNERSHIP. See CORPORATION, 10. EXECUTORS AND ADMINISTRATORS, 3, 5. FORMER RECOVERY, 1. LIMITATIONS, STATUTE OF, 13-16.

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 præsumuntur 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.

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

PARTNERSHIP.

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 v.

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. Parker 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,
691.

PARTY WALL. See COVENANT, 5.

PATENT. See CONSTITUTIONAL LAW, 3. CONTRACT, 4.

PARTNERSHIP, 16.

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.

PATENT.

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. Howard 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.

PENSION.

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.

PILOTAGE.

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 exception 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.

PLEADING. See DAMAGES, 7. EQUITY, 8, 12. FIXTURE, 2, 3. LIMITATIONS,
STATUTE OF, 5, 6. PATENT, 4.

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.

PLEDGE. See CORPORATION, 21, 25.

POLITICAL ASSESSMENTS. See CRIMINAL LAW, 28.

POSSESSION. See LIMITATIONS, STATUTE OF, 7.

POUND. See REPLEVIN, 6, 7.

TRESPASS, 2.

POWER OF ATTORNEY. See HUSBAND AND WIFE, 15.