upon the lands of A., the latter has no right to fill up the culvert,
thereby causing the highway to become impassable at times of high
water, and, by the construction of a diteli, collect the water into a
channel and discharge it in a body upon the lands of B., to his injury.
Such acts would be the creation of a nuisance which B. would be enti-
tled to abate by restoring the culvert, doing no wanton or unneces-
sary injury.
Reed v. Cheney, 387
See COUNTY; DRAINAGE; CRIMINAL LAW, 9 to 15; MORTGAGE, 2.
1. Bureau of Vital and Sanitary Statistics.-Clerk.-Appointment of.--Secretary
of State.-State Board of Health.-The secretary of state has no authority
to designate or appoint any one for the performance of clerical duties
in the Bureau of Vital and Sanitary Statistics, except upon the requi-
sition of the secretary of the State Board of Health, approved by the
president thereof, and addressed to him. Curr v. State, ex rel., 101
2. Same.-Removal of Clerk.-A person legally appointed to perform cler-
ical duties in the Bureau of Vital and Sanitary Statistics holds his
office or employment at the pleasure of the State Board of Health,
and the secretary of state has no authority to remove such clerk. It.
3. New Bond.--Power of Circuit Judge to Require.—Declaring Vacancy.-The
act of 1852, conferring certain powers upon the judge of the court of
common pleas relative to requiring new bonds from public officers,
declaring vacancies, etc., since such court has been abolished, is ap-
plicable to the circuit court. Section 5538, et seq., R. S. 1881.
Hollingsworth v. State, 289
4. Same.-County Treasurer.-Sureties.-Release from Bond.-Failure to Give
New Bond.-Vacancy.- Where the sureties in the bond of a county
treasurer petition the judge of the circuit court to be released there-
from, uch judge may, after proper notice to the treasurer, and a fail-
ure on his part to furnish an additional bond, as required by the
statute, declare the office vacant.
5. Quo Warranto-Information in Nature of, Proper Proceeding for Obtaining
Possession of Office.-An information in the nature of a quo warranto is
the appropriate remedy for obtaining possession of an office to which
a person, duly qualified, has been legally elected. It is also the proper
remedy for the removal of the incumbent of an office, who has usurped
and illegally continues to hold it, and both remedies may be sought
by the same information.
Griebel v. State, ex rel., 369
6. Same.-County Auditor, Term of. - Breaking of Regular Succession.—Where
there has been an unbroken succession of terms from the adoption of
the existing State Constitution to the present time, and no general ac-
quiescence in a different day or time, the commencement of the term
of a county auditor dates back to, and is governed by, the time at
which the term of the auditor who was in office when the Constitu-
tion took effect expired. Where, however, the regular succession of
terms has been broken by vacancies or other incidental causes, the
term of a newly elected auditor begins when the regular or provisional
term of his predecessor expires.
Ib.
7. Same.-Estoppel.-It is only when his successor has not been chosen
and qualified that a county auditor can continue in office beyond his
term, and whenever such officer has, in pursuance of an election to
the office, served the full term of four years, and his successor has
been duly elected and qualified, he is estopped from denying that his
term of office has expired.
Ib.
8. County Surveyor.-Term of Office.--Estoppel.-P. was elected county sur-
veyor at the general election in November, 1884, and took possession
of the office on the 21st of the same month. At the November election,
1886, R. was elected to the same office, and on the 22d of that month
demanded of P. the office, with the property belonging thereto, which
the latter refused to surrender. In a quo warranto proceeding against P.,
Held, that having filled the office for the full term prescribed by the Con-
stitution, he is, as against his regularly elected and qualified suc-
cessor, estopped from denying that his term of office has expired.
Pursel v. State, ex rel., 519
PARENT AND CHILD.
See DEED; REAL ESTATE, 1.
See ESTOPPEL, 1; JUDGMENT, 6; MORTGAGE, 2; PLEADING, 2; PRACTICE,
2; WILL, 1.
1. Examination of.-Notice.--Refusal to Attend.- Contempt.-- Striking Out
Pleadings.-Where the defendant to an action is notified by the plaint-
iff to appear before a justice of the peace to be examined as a party,
under section 509, R. S. 1881, touching matters alleged in the com-
plaint, but no summons is issued by the officer, his failure to attend
in response to the plaintiff's notice does not constitute a contempt for
which, under section 513, his pleadings in the cause may be stricken
Bish v. Beatty, 403
2. Same.-Judgment as Upon Default.--Showing Necessary to Authorize.-In
such case, to authorize the striking out of the defendant's pleadings
and the rendering of judgment for the plaintiff as upon a default, it
should also appear that the plaintiff, or some one in his behalf, at-
tended at the time and place mentioned in the notice, and that he
desired and was ready to examine the defendant concerning a matter
stated in the pleadings.
Ib.
1. Adjustment of Partnership Accounts. When One Partner May Maintain
Action.--As a general rule, no action can be maintained by one part-
ner against the other respecting particular items of account pertain-
ing to the partnership business until the accounts of the partnership
are finally adjusted, or until the affairs of the firm are so far settled
as that nothing remains except to ascertain the final state of the ac-
count between the partners.
Thompson v. Lowe, 272
2. Same.-Sale of Partner's Interest. - Promissory Note -Set-Off-Where one
partner transfers his interest in the assets, including the books and
accounts of the partnership, to a continuing member of the firm, or
to another, and receives in payment for such interest the note of the
purchaser, the maker of the note can not set off an account apparently
due the firm from the member whose interest was transferred. 16.
3. Same. A sale by a partner of his interest in the assets of a firm does
not, in the absence of a special agreement to that effect, imply that
the purchaser becomes entitled to collect from the seller what may
appear to be due from him on the firm books.
4. Same.-The effect of such a sale is to transfer to the purchaser what-
ever interest the seller has in the assets of the partnership after the
payment of all the partnership liabilities, and, in the absence of any-
thing to show to the contrary, it will be presumed that the account
of the retiring member was adjusted in ascertaining the value of his
interest, and that the value was increased or diminished in propor-
tion as he was found the debtor or creditor of the firm.
Ib.
5. Same.-Promissory Note Executed by Firm to Member.-A note governed
by the law merchant, payable by a firm to one of its own members,
may be enforced against the firm, if endorsed to an innocent holder
before maturity, regardless of the state of the account of the member
to whom it was made payable. But such note in the hands of one
who stands in the place of the original payee can not be made the
basis of an action at law against the firm, or the remaining partners,
it being nothing more than an acknowledgment that the partner
named therein had paid into the firm either in property or money
the amount specified in the note.
1b.
See EVIDENCE, 9; PRINCIPAL and Surety, 6, 7; SHERIFF'S SALE, 3, 4;
TAXES.
Giving Negotiable Note for Precedent Debt.--The giving of a negotiable prom-
issory note, governed by the law merchant, for a precedent debt, will
operate as a payment and discharge of such debt, unless it be shown
that the parties did not intend that the transaction should have that
effect.
Nixon v. Beard, 137
PENALTIES.
See APPEAL, 11.
PHYSICIAN
1. License.-Compensation-One who undertakes to practice the profession
of medicine, without the license required by statute, can not recover
compensation for his services.
Orr v. Meek, 40
2. Same.-License Required for Each County in Which Physician Practices.—
A physician, who has obtained a license in one county, can not regu-
larly engage in practice in another county without taking out another
license.
See APPEAL, 1; ATTACHMENT, 3; CRIMINAL LAW; DECEDENTS' ESTATES,
2,3; ESTOPPEL; EXECUTION; GRAVEL ROAD, 1; JUDGMENT, 3; LIFE
INSURANCE, 9; MALICIOUS PROSECUTION; MECHANIC'S LIEN; MORT-
GAGE, 6; NEGLIGENCE, 7; PRACTICE; QUIETING TITLE; REAL ES-
TATE, 2; SUPREME COURT, 7; TORT.
1. Practice.-Answer in Abatement.· - Demurrer. - Motion to Strike Out.-
Where an answer in abatement is pleaded with an answer in bar, it
should be struck out on motion; but neither the fact that it does not
precede the answer in bar, nor that it is not verified, renders it bad on
a demurrer for want of facts.
State, ex rel., v. Ruhiman, 17
Party in Interest. An answer
which states facts showing that the plaintiff had no interest in the
subject-matter of the action at the time of its commencement, and
that some other person named was at the time the real party in in-
terest in such suit, is an answer not in abatement, but in absolute bar,
of the pending action.
2. Same. Answer in Bar. - Abatement.
3. Complaint.-Defect in Form.-If a complaint state a cause of action,
reciting the facts so as to enable a person of common understanding to
know what was intended, the judgment will not be reversed on ac-
count of defects in the form of pleading.
United States Mortgage Co. v. Henderson, 24
4. Consideration of Contract.-Averment of in Complaint.-Plea of Want of.-
Where the consideration of a contract sued on is properly and fully
averred in the complaint, a general denial puts the plaintiff to the
proof thereof, and it is not error to sustain a demurrer to a paragraph
of answer specifically pleading a want of consideration.
Nixon v. Beard, 137
5. Complaint.-Demurrer.-A complaint which shows that the plaintiff is
entitled to some relief will repel a demurrer.
Rogers v. Union Cent. L. Ins. Co., 343
6. Matters of Description. - Amendment During Trial.-Practice.-Under sec-
tion 396, R. S. 1881, the trial court may permit a party to correct a
pleading as to a matter of description, even after the evidence in
chief has been heard.
Reed v. Cheney, 387
7. Foreign Statute.-Where a pleading is founded on a foreign statute
the statute must be set out.
Swank v. Hufnagle, 453
8. Additional Answers. Refusal to Allow Filing of. Discretion of Trial
Court. For facts held not sufficient to show an abuse of discretion by
the trial court in refusing to allow an additional paragraph of an-
swer to be filed, see opinion.
Gardner v. Case, 494
9. Complaint.-Surplusage.-Statements of facts in a complaint, which are
in themselves material and relevant to the cause of action, can not be
regarded as surplusage, although they overthrow the pleading.
Knopf v. Morel, 570
10. Same.-Repugnant Allegations. -Where a complaint contains material
and relevant facts which constitute a defence to the action, it is bad
on demurrer.
Ib.
See APPEAL; ATTACHMENT, 1; BILL OF EXCEPTIONS; CONTINUANCE;
CRIMINAL LAW; EVIDENCE, 4, 6 to 8; EXECUTION; GRAVEL ROAD,
1,3; INTERROGATORIES TO JURY; INTOXICATING LIQUOR, 3; JURY;
MORTGAGE, 6; NEW TRIAL; PARTIES; PLEADING; SPECIAL FINDING;
SUPREME COURT; WITNESS.
1. Evidence.-Examination of Witness.-Objection to Question.-Statement as
to Answer Expected.-To constitute available error in ruling out a
question propounded to a witness, the interrogating party must
announce to the court what he expects to elicit in answer to the
question. A general statement that he expects to follow up the ques-
tion by showing a certain fact, but not announcing that he expects to
make the proof by the witness interrogated, is not a compliance with
the rule.
Harter v. Eltzroth, 159
2. Parties.-Supreme Court. - Waiver.-Where one is made a party defend-
ant to an action, who is neither a necessary nor a proper party thereto,
the plaintiff can not be heard to object to his right to assail the
complaint or petition by assignment of error in the Supreme Court
on appeal.
Renner v. Ross, 269
3. Appeal.-Reversible Error.-Overruling Demurrer to Bad Answer.-The
overruling of a demurrer to a bad answer is a reversible error, even
though there be other good answers under which the same evidence is
admissible.
Thompson v. Lowe, 272
4. Instructions.-Motion for New Trial.-Record.-Instructions can not be
made part of the record by copying them into the motion for a new
trial.
Whetton v. Clayton, 360
5. Order of Introducing Evidence --Discretion of Trial Court.-Supreme Court.
--It is within the discretion of the trial court to admit or exclude
in reply evidence that should have been given in chief, and unless
there is an abuse of such discretionary power the Supreme Court will
not disturb its decision.
Stewart v. Smith, 526
See CANAL, 3; CRIMINAL LAW, 37; PRINCIPAL AND SURETY, 14.
See ATTORNEY AND CLIENT; COUNTY; CRIMINAL LAW, 27, 28; EVIDENCE,
3; GRAVEL ROAD, 10; INSURANCE, 6.
1. Mortgage.-Contract.-Subrogation.-Where a contract of agency pro-
vided that the agent was to loan money for the principal upon mort-
gage security, and that the former should become personally liable
to the latter for all instalments of interest on such money loaned
which were not paid within ten days after they became due, such
agent, upon the payment of any such instalment of interest under the
contract, would be entitled to a remedy against the borrower for the
amount so paid, and to participate in the mortgage security to the
extent of such payment.
United States Mortgage Co. v. Henderson, 24
2. Same. Foreclosure.--Instalments of Interest.-Where a loan company,
mortgagee, avails itself of a provision in the mortgage that upon a
default in the payment of an instalment of interest the entire debt
should become due, and forecloses the.mortgage, taking judgment for
the whole amount, principal and interest, it can not afterwards en-
force a contract with its agent who made the loan, which provided
that the latter should be liable to the principal for all instalments
of interest on moneys loaned by him as such agent, which were unpaid
ten days after they became due.
Ib.
3. Same. In such case the decree of foreclosure merged the entire con-
tract with the mortgagor, as well in respect to instalments of interest
matured as in respect to those not matured, in the judgment and
decree, and the agent would not, after such foreclosure, be liable un-
der his contract for any of such instalments.
Ib.
4. Same.-Loan Agent.-Attorney.-Liobility of Principal for Additional
Services Rendered by Agent.-In a contract between principal and
agent, that the latter should make ioans of money on bonds and
mortgages and collect money to become payable on such loans, a
provision that the former should not be liable for any charges, dis-
bursements or commissions to the agent for his services in such
́agency, does not relieve the principal from liability to the agent for
services rendered by him at the former's request, in foreclosing
mortgages and collecting moneys by legal proceedings, looking after
repairs to and caring for property bought in by the principal upon
foreclosure of its mortgages, for renting and collecting rents of such
property, and looking after the payment of taxes, and keeping up
insurance thereon, and other like services.
Ib.
5. Real Estate Broker.-Commission.- Contract.-Where an agency to seli
land is limited to nine months, but it is stipulated in the contract
that if a customer is introduced through the agency of the broker,
and a sale is afterwards consummated with such customer, the owner
shall pay a commission, whether the time of the agreement shall
have expired or not, the broker may recover the commission if, dur-
ing his agency, he introduces a customer to whom the land is after-
wards sold, whether the sale is ultimately consummated through his
instrumentality or otherwise.
Williams v. Leslie, 70
6. Trustee.-Style of Bank Account.-One who is put in possession of prop-
erty by joint owners, with instructions to sell it upon the best avail-
able terms, at his discretion, is an agent, and not a trustee, and his
character is not changed by styling himself "trustee," at the sugges-
tion of one of his principals, a banking company, in making deposits
with the latter of the proceeds of sales, to distinguish the account
from another kept by him as agent.
Rowe v. Rand, 206
7. Same.-Joint Principals.-Severance of Interests.-Revocation of Agency.-
Banks.- Mutual Release of Claims.-Where two banks, as principals,
appoint an agent to take charge of a matter in which they are jointly
interested, who deposits the joint funds in one of the banks, and a
severance of the joint interest afterwards occurs, and in a compro-
mise of differences each releases all claims against the other, the
agency is thereby revoked, and a claim against the bank holding the
deposit by the other principal for a share therein is discharged. Ib.
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