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judge was appointed. Held, that a subsequent act repealing the former act
and abolishing the district before the expiration of the term was unconstitu-
tional. 1869. Commonwealth v. Gamble (62 Penn. St. 848), 1, 422.

7. Where the constitution provides for the office of sheriff, but does

not define the powers and duties pertaining to the office, the legislature has
no power to take from the office a part of the duties and functions usually
appertaining to the office, and to transfer it to another office. 1871. King v.
Hunter (65 N. C. 603), VI, 754. 1870. State v. Brunei (26 Wis. 412), VU, 84.

8. But where an office is entirely the creation of the legislature, the

legislature, in the absence of any constitutional restriction, may shorten the
term or abolish the office. 1870. State v. Douglaea (26 Wis. 428), VII, 87, and

9, Where the State constitution provided that certain officers should

be elected at such times and in such manner as the legislature should direct ;
and the legislature had directed the time and manner, and an officer had been
elected accordingly, Tield, that an act subsequently passed extending the term
of the incumbent was unconstitutional. 1871. People v. Bull (46 N. Y. 57)
VII, 802.

10. An office created by a municipal cori>oratlon may be abolished by
the same authority, so as to deprive the incumbent of his salary for the unex-
pired term for which he was elected. 1871. City Council of Augusta v. Sweeney
(44 Qa. 463), IX, 172.

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IL Official bonds — liability of sureties. Where a person holds the same
office for two successive terms, the sureties on his official bond for the second
term are liable onlj for monejs actually in his hands at the time of liis execu-
tion of the bond, or received bj him subsequently thereto ; but thej are not
liable for moneys reported bj him, at the end of the first term as in his hands,
but which in fact he had converted to his own use. 1869. Vivian v. Otis (24
Wis. 618), 1, 199.

12. A person who was elected treasurer of a town for five consecutive

jears, served the first four jears without a bond, and in the fifth year he gave
a bond, conditioned that, whereas he had been elected to the office for that
year, if he should well and faithfully perform all the duties of his office, the
bond should be void. In an action on the bond it was agreed that during the
first year he falsely credited himself, in his account of that year, with money
as having been officially disbursed by him, and never entered it on his subse-
quent accounts, but retained it. Held, that the money could not be treated as
a balance in hand in the fifth year, and that, as the misappropriation was com-
plete before the bond was given, the sureties were not liable. 1870. Inhab-
iianta ofBochuter v. BanddU (106 Mass. 296), VII, 619, and noU, 621.

13. Damages to one wrongfully kept out of offioe. A. assumed the
duties of an offioe under an apparent claim of right, and it was subsequently
j udicially determined that the office belonged to B. Held, 'that B. could recover
of A. the fees and emoluments received by him, while in office, after deduct-
ing the necessary expenses in earning them. 1870. Mayfleid v. Moore (68 lU.
428), V, 62.

14i One wrongfully kept out of an offioe of profit, by a claimant thereto,

is entitled to recover as damages the whole official salary, without deduction
for the services of the incumbent. 1872. Pe6!ptov.if»«ar (24Mich.468),IX,ldl.

16. B. and M. were opposing candidates for county treasurer. M. was

declared elected by the county canvassers and entered upon the duties of the
office. The election was contested, and B. was finally declared entitled to the
offioe by the judgment of the Supreme Court. The county auditor in settling
with M. allowed him the salary for the time he held the office. Held, that B.
could not recover of the county salary for the time M. was actually in office,
but that his remedy was against M. Coolbt, J., dissenting. 1870. Th6 Audi-
tor of Wayne Go. v. BenoU (20 Mich. 176), IV, 882.

16. On the trial of an assault upon a poUoe offioer, evidence that he was
at the time of the offense acting as such offioer and that he had publicly acted
as such for four years previously, is sufficient to prove that he was a police
officer. 1871. Commonwealth v. Kans (108 Mass. 428), XI, 878.

17. On the trial of such indictment, evidence that the person assaulted

was, at the time of the assault and with the defendant's knowledge, acting as
a police offioer, and wearing the uniform and badge of such officer, is sufficient
proof that he was a police offioer, to be submitted to the Jury. 1871. Com-
monweaUh v. Tobin (108 Mass. 426), XI, 876.

18. Offioen oannot be interested in oontraots pertaining to their office.
A public offioer, as a school director or trustee, will not be allowed while so

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acting to take a contract relating to the matters o€ hia oAoe. 1870. Piekett
V. School District (25 Wia. 651), HI, 105.

19. Bfiaoondnot in offiodi A register of deeds Maeiy certified OTer kis
official signature, that he had examined a title, and found it unincumbered. It
was no part of his official duty to make examinations or certifiealee of title.
Held, that he was guilty of misconduct in office. 1872. 8kUe ▼. Zmu& (60
Me. 58), XI, 172.

20. Officer de faoto — acts of when Ti^d. A judicial officer appointed bj
the common council of a dtj, in pursuance of an act of the legislature after-
ward declared unconstitutional, is an officer dsfaoiotJid a lecognizanoe entered
into before him is valid. 1870. Brown ▼. OO&nneU (86 Conn. 482), IV, 80.

21. The judgment of a judge de facto is valid. 1871. State v. CarroU

(88 Conn. 449), IX, 409, and noU, 484.

22. An officer de facto is one whose acts, though not those of a lawful

officer, the law, upon principles of policy and justice, will hold vaUd, so far
as they involve the interests of the public and third persons, where the
duties of the office were exercised: (1) Without a known appoiatment or
election, but under such circumstances of reputation or acquiescence as
were calculated to induce people, without inquiry, to submit to or invoke
his action, supposing him to be the officer he assumed to be. (2) Under
color of a known and valid apx>ointment or election, but where the officer
has failed to conform to some precedent, requirement or condition, as to
take an oath, give a bond, or the like. (8) Under color of a known elec-
tion or appointment, void, because the officer was not eligible, or because
there waa a Want of power in the eleetfag or appointing body, or by reason
of some defect or irregularity in its exercise, sooh ineligibility, waat of
power, or defect bein^ unknown to the public. (4) Under color of an elec
tion or appointment by or pursuant to a public, unconstitutional law, before
the same is a^jadged to be such. lb.

23. The acts of an officer appointed and acting in pursuance of a law

are valid as the acts of an officer de facto, even though the law be afterward
judicially declared unconstitutionaL lb,

24L Rmnoral of officers. In the absence of constitutional or legislative
prohibition the power of removal is incident to the power of appointment of
officers. 1870. 2^etMom v. Ooeke (44 Miss. 852), VII, 686.

See Abbest ; Constitdtional Law ; Ezbcution.
ORDIKAKCB — 5m Muhioipal Oobfobahoh.

1. The settlement of the parents determines the settlement of ittiunemanci-
pated child, and where the head of the family changes his settlement, that of
his children changes with him. This is the case when, upon death of the
father, the mother becomes the head of the family. 1870. BurreU Township
V. PitUbwrg, etc. (62 Penn. St. 472), 1, 441.

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2. N. W., the widowed mother of A. K. W., removed from the town-
ship of Borrell, where she h«d a settlement, to Pittsbargh. €he there leased
a house, and resided in it nntil her death. In the meantime A. E. W. became
deranged, and after the death pf his mother became a pauper . Hieid, that bj the
act of the mother changing her settlement, that of A K. W. was also changed,
and that Burrell township was not liable for the support of the pauper. lb.

3. Although the £ath«r and mother stand upon a different footing as to their
children, in relation to private parties, in regard to the public their standing is
the same. lb.

4i Bmandpation. A father, though insolvent, may in good faith give his
minor son his time and future earnings. 1872. Attoood v. Molcomb (89 Ck>nn.
270), Xn, 886.

6. Oontnaots of — raoavavy of monmy paid bj. Plaintiff's intuii son pur-
chased of defendant, and paid for, tobacco pipes. Plaintiff^s wife tendered
back to defendant the pipes and demanded the money. Seld, that plaintiff
could recover the money. 1878. Seguin v. Pet&r$an (45 Vt. 26ff), XII, 194.

6. Maintenance. There is no legal obligation on a parent to maintain his
minor child independent of statutory enactment. 1870. Kelljf v. Dcm* (49 N.
H. 176), VI, 499.

7. A parent cannot be charged lor necessarlea f umishad by a stranger to
his minor child, except upon a promise to pay for them. Such promise is not
to be implied from mere moral obligation, nor from the statutes providing for
the re-imbursement of towns ; but the Jury, in finding a promise, are to take
into consideration all the circumstances connected with the parent's neglect, as
indicating his intention, views and purposes with regard to the wants of his
chUd. lb,

8. The only ground upon which a father can be made liable for debts

contracted by a minor son is that of an express or implied agency, and, in an
action against the father to recover for a purchase made by the son, it is for
the jury to determine whether such agency existed. 1870. JSbft v. Baldwin
(40 file. 265), II, 515.

9. A widowed mother is antitlad to the smrvioes and aamlngi of her minor
child (if it be not emancipated and have no other guardian), to the same extent
as the father would be entitled to them if alive. 1871. BammoTid v. CorbeU
(50 N. H. 501), IX, 288.

10. The minor son of plaintiff, a widow, worked for defendant, with her

consent. No ^ardlan had been appointed for said son, but he lived with
plaintiff and was maintained by her. Held, that plaintiff could recover his
wages of defendant. 1870. MaMeufSon v. Perrj/ (87 Conn. 485), IX, 889.

11. Oommitment to house of refuge. The rights and powers of the parent

in regard to the child discussed and the point decided that a statute authorizing

the commitment of a child to a house of refuge on the application of its

father is unconstitutional. 1870. People v. Turner (55 HI. 280), VIII, 645.

See Estoppel ; Negligence ; Spbcifio Performance ; Voluntart


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1. Before ooniFlotioii. The power to pardon afUfr oonmction wtm veeted is
the governor hy the constitation of Arkansas. Meld, that the exerdae of the
power to pardon btfore eorwietion, hj the legialataref was not nnoonstitatioDaL
1870. The auaeY.I^ichoU{2tiAxk, 74), YU,eOO.

2. The constitation of MasBachosetts placed in the governor the power

of pardoning offenses, bat provided that no pardon before conviction should
avail the party pleading the same. Held, that a pardon granted after verdict
of gailtj and before sentence was valid. 1872. Comrnanwealth v. Loekwood
(109 Mass. 828), XII, 699.

3. Oonditional pardon. The governor of Virginia commated defendant's
sentence for a felony (three years in the penitentiary), to one year in jail, with
the consent of the prisoner. MM, (1) that the governor had the constitational
authority to do sach an act ; (2) that the act was a conditional pardon and not
a commutation, as it substitated a different punishment ; (8) that the prisoner
could be lawfully held to the performance of the condition. 1872. Lee ▼.
Murphi/ (22 Gratt. Va. 789), XII, 568.

PAROL EVIDENCE— See Bvidbnce; Wills.

I. What ooirerrruTBS.


IIL Ll^ilitt of pabtnsbs to bach other.


I. What oon8titute8.

1. An agreement to share in the losses as well as the profits of the business
is not necessary to constitute a partnership as to third persons ; an agreement
to share in the profits alone is sufficient. 1871. Manhattan BroM and Manu-
factuHng Go. v. Seofre (46 N. Y. 797), VI, 177.

2. An advance of money repa3rable oat of profits. Defendant loaned money
to A, and took therefor a promissory note, payable with interest in three years,
and an agreement that, in consideration of the trouble and expense in procur-
ing the money loaned, A would pay him, defendant, such further sum annually
as, with the interest, would be equal to one-sixth of the annual net profits of
A's business. Held, that defendant was liable as partner to a business creditor
of A. 1870. Pa^k^ v. Canfield (37 Conn. 260), IX, 317.

3. Where two persons entered into a contract Jointly, for the keeping of
sheep for certain shares of the wool, it was held^ that they would be so far
regarded as partners as that a settlement made by one of them, in the name of
both, would bind both. 1871. Stapletoa v. King (33 Iowa, 28), XI, 109.

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4i A partner has no authority to bind his firm byan instnmient nndar saal,
even where the seal is not essential to the validity of the instrument. 1870.
JSehmerU ▼. Shre&w (62 Penn. St. 457), 1, 489.

6. But where the contract is independent of the instmment, and has

been executed on behalf of the firm, the making for the parposes of evidence
of an instrument, under seal, by a partner, will not vitiate such contract. lb,

6. Bond ezeonted by one partner. In a bond given for the purpose of
obtaining a dissolution of an attachment of partnership property, both partners
were named as principals, but the bond was executed by only one of them, in
the name of the firm. HM, that it could not be enforced against a surety with-
out proof of the assent of the other partner to its execution. — Wells, J., dis-
senting. 1871. i^tMM^v. ^nnoftte (109 Mass. 72), XU, 666.

7. Liability of one snflfeiing another to use his name. One Harrington gave
the plaintifif a note signed *' Hill & Co. by Harrington." There never existed
any such firm as *' Hill & Co.," nor were Hill and Harrington ever partners ; but
some time before the note was given. Hill was informed that Harrington was
using his name, and he thereupon told Harrington that he " must not use that
name to injure him," and Harrington said he would not. Hill did not know of
the giving of the note to plaintiff, nor did plaintiff know of the previous use
by Harrington of Hill's name. EM, that Hill was liable on the note. 1872.
Smith V. Sm (46 Vt. 90), XII, 189.

8. Statute of limitations — renewal by one partner — bankmptoy. In an
action against H. and B., makers of a partnership promissory note, it appeared
that the partnership had been dissolved soon after the note was made. The
defense was. that the claim was barred by the statute of limitations, and that
the defendant B. -had received his discharge in bankruptcy under the United
States law. Held, (1) that the admissions and acknowledgment of the note by
B., made after the dissolution of the partnership but before the statute of lim-
itations had taken effect, removed the bar of the statute as to both H. and B. :
(2) that evidence of an admission made on Sunday of a part payment of the
note on a week day was admissible ; (3) that, as it appeared that the discharge
in bankruptcy had been obtained by fraud, it was no bar to this action, not-
withstanding it had not been set aside in a regular proceeding for that purpose.
1869. Beardslty v. Hall (86 Conn. 270), IV, 74.

9. Fraud. A partner made his promissory note and indorsed it in the firm
name without his copartner's knowledge or consent, in payment of an individ-
ual debt to defendant, who took the note with knowledge of the facts, and in
order to bind the firm, indorsed it before maturity to a hona fide holder for
value. The note was paid out of the firm assets. HM, that defendant was
guilty of a fraud for which he was liable in damages ; but that the fraud was
not upon the firm, but upon the individual partners, who did not consent to
the indorsement of the note, and that the cause of the action against defendant

. did not pass to plaintifis by a general assignment of the assets of the firm, or
by a conveyance to plaintiffs of the firm interest of a partner injured by the
fraud. 1872. Calkin9 v. amUh (48 N. Y. 614), VIII, 575.

Digitized by



10. Mortgage of iwlMdaftl intorett — sale tuidar — firm oreditank One of
three partners, with the consent of the other partners, mortgaged his interest
in the firm property, to secure an individual debt of plaintiff, who sold tiie
property under the mortgage and bought it in himself. Another person at the
same time and in like manner became possessed of another partner's interest
After the execution of the mortgage, but before the sale, the third partner sold
his interest to a stranger. After these transactions, a judgment was recovered
against the firm on firm debts, and execution was levied on the property which
had belonged to the firm, by the defendant as sheriff. In an action of trover
against the sheriff, TUtd^ that plaintiff could not recover, as he acquired no title
by the sale under the mortgage as against firm creditore. 1873. Menagh v.
WhUweU (52 N. T. 146), XI, 683.


11. Individual services. A partner who neglects and refuses, without rea-
sonable cause, to perform personal services which he has stipulated to render
the partnership, is liable to account to the firm for the value of the services in
the settlement of the partnership accounts. 1871. Marih*» Appeal (69 Penn.
St. 80), Vm, 206, and note, 212.

12. Where several persons entered into articles of agreement, formings

a partnership, and one of the partners, by f)erb(U agreement, assumed to render
certain services which he neglected to perform ; Jield, that he waa chargeable
with the value of his services on the settlement of the firm accounts. lb.

13. Real estate was purchased by G. S. and J. G. in their individual names.
Subsequently they formed a partnership with J. S., under the name of G. S.
& Co. The cash payment, on account of purchase-money of the real estate and
the first installment, were paid before J. S. became a partner. He acquiesced
in the subsequent appropriation of the firm funds to the payment of the bal-
ance, and to expenditures made in improvements, knowing that it stood in the
individual names of G. S. and J. G. It was agreed by parol that J. S. was to
have one-third of the real estate as soon as there was a final settlement. Held,
that there was no resulting trust for the partnership, and the real estate hav-
ing been sold under execution, the fund arising from the sale should go to the
individual creditors of G. S. and J. G., instead of the creditors of the firm.
1871. Lefefyre'i Appeal (69 Penn. St. 122), VIU, 229.

14i Interest on settlement In the settlement of partnership accounts between
partners, there is no general rule as to interest, but the allowance or refusal
thereof depends u]K>n the circumstances of each case. 1869. Qyger^e Appeal
(62 Penn. St. 73). I, 882.

16. Judgment against individnal partner. Where land had been conveyed
to a partnership by a deed, expressing on its face that it is to be holden as
partnership stock, a judgment, subsequently entered against an individual
n^ember, is not a lien upon it, or any interest in it, so as to preclude the firm
from disi>osing of the property and making a title to the purchaser dear of
such incumbrance. 1872. M^ v. Wood (71 Penn. St. 488), X, 719.

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16. W. conveyed land to M. and others, partners under the firm name

M. & Co., by deed declaring on its face that such land was to be held bj the
grantees " as partnership propertj." Sabseqaently, a j adgment was recovered
by W. against one of the partners for his proportion of the purdhase-nuMiej,
and that partner conveyed his interest in the partnership to his copartners,
who conveyed the whole property to others. HM^ that sach judgment was
not a lien upon the land in the hands of the terre-tenants. 2b,


17. By war. A commercial copartnership between a resident of the north and
a citizen of the soath was dissolved by the war of the rebellion. 1870. Wood$
V. Wilder (43 N. Y. 164). Ill, 684.

18. Tlia bankruptoy of one paitasr dissohrts the copartnership, and the
assignee of the bankrupt and the solvent partner become tenants in common
or Joint owners of the partnership property and must unite in suits respecting
the same. 1871. ifaJt^ t. iV<>r<<m (45 Bfiss. 708), VII, 745.

19. Qood-'wilL A partner who is appointed by a firm to settle up the busi-
ness of the firm after dissolution, and who continues the business of the firm
upon his own account. Is not liable to account to the firm for the value of the
" good.will " thereof. 1869. Ojfffer's Appeal (62 Penn. St. 78), 1, 889.

QO. Bxdusive right in the business and sole ownership of it as against

others are the criteria of property in good-will. lb.

21. A promissory note given alter dissolution of a partnership, by one
partner, without the authority of the other, does not bind such other, although
given in the partnership name and for a partnership debt. 1869. Haddock v.
Oreeh^nm (82 Tex. 276), V, 244.

22. After the dissolution of a partnership. A., one of the partners, with-
out authority, gave a new note in the name of the firm, in renewal of an old
six per cent partnership note, and, without intent to defraud, made it to bear
ten per cent interest, and included it in an individual liability of B., another
partner. D., another partner, subsequently promised to pay the new note, sup-
posing it to be a simple renewal of the old note. In an action on the new note,
hM, that, as the considerations were severable, D. was liable for the amount
of the old note, with interest at six ^r cent. 1870. WUeon v. Forder (20
Ohio St. 89), V, 627.


23. Two partners oannot maintain a Joint action of account against a third,
to recover their share of the net profits received by him, in the absence of an
independent promise or of an adjustment of the partnership matters. 1871.
Fdrrair v. Pdarmm (57 Me. 561), VIII, 489.

2^ Thm iHm*— */^« of a partnar, made while engaged in the adjustment of
unsettled partnership business, after the dissolution of the firm, may be given
In eridenoe to charge the other partners in relation to such business. 1872.
Felgk^ v. WkUaJm (22 Ohio St. 606), X, 77a

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26. Zlz«oixtioii against — l«vy — aflbot o£ Where the oreditonof a partaer>

ship have levied their exeoutioii on lands helonging to one of the partn«%aiid

their title has become absolnte by lapse of the time prescribed by statute, a

creditor of the indiyidaal partner cannot defeat their title by levying his attadi-

ment or execution on the same lands. 1868. BavOcer v. timith (48 N. H. Ill),


See Inbubanob ; Mabtbb akd Seryant.


1. Inoreaslng height Althoagh land covered by a party-wall remains the
several property of the owner of each half, yet the title of each owner is
qualified by the easement to which the owner is entitled ; and the right of
either to increase the height of the party-wmll, when it can be done without
injury to the adjoining building, and the wall is of suAcient strength to safely
bear the addition, is, necessarily, included in the easement. But the party
making the addition does it at his peril ; and, if injury results, he is liable for
all damages. He must insure the safety of the operation. 1872. Brookt v.
Curtie (50 N. Y. 639), X, 545.

2. Oonstmotlon of deed. The owner of two adjoining lots conveyed oae
to B. and the other to S., each deed containing an agreement that the division
wall between the houses then standing should, notwithstanding a deviatioD
from the true dividing line, remain undisturbed " so long as the said houses
shall endure." Held, that the true construction of the deeds was that when-

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