10. CERTIFICATE OF CORPORATE SHARES OF STOCK, IN ORDINARY FORM, IS
NOT NEGOTIABLE PAPER, notwithstanding a custom or usage among
stockbrokers to the contrary; and an innocent purchaser for value of such
certificate, although indorsed in blank by the owner, obtains no better
title to the stock than his vendor had, in the absence of all negligence
on the part of the owner.
11. VENDOR OF NEGOTIABLE BONDS OR NOTES WHO ASSIGNS THEM " WITHOUT
RECOURSE" IS LIABLE ON IMPLIED WARRANTY, in the absence of express
representation, for any deficiency between the amount apparently due
upon the face of the instrument and the amount legally collectible upon
it, although the deficiency arises from a successful interposition of the
defense of usury whereby the collection of interest on the note is de-
feated. Drennan v. Bunn, 354.
12 VENDOR OF NEGOTIABLE NOTE IS CONCLUDED BY JUDGMENT OBTAINED
IN SUIT OF WHICH HE HAD DUE NOTICE, between his vendee and the
payor of the instrument, and in which suit the defense of usury was set
up, although such vendor was not expressly requested to take charge of
the suit, and the note was sold "without recourse." Id.
See AGENCY, 3; Pledge, 5; UsURY.
NEW TRIAL MAY BE GRANTED where VERDICT IS AGAINST INSTRUCTIONS
OF COURT. Instructions, whether right or wrong, constitute the law of
the case, and it is the duty of the jury to follow them. Crane v. Chicago
etc. R'y Co., 479.
POSSESSION AS NOTICE OF EQUITABLE TITLE. IF GRANTOR REMAINS IN
POSSESSION, this is not sufficient, as against his recorded deed, to put in-
tending purchasers on inquiry to ascertain whether the deed was fraudu
lent, or whether the grantor retains any interest in the land. Hafter v.
Strange, 659.
1. CONTINUING NUISANCE-DAMAGES — AVERMENT OF REQUEST TO REMOVE
SAME. Where a party comes into possession of land as grantee or
lessee with an existing nuisance upon such land, and he merely permits
the nuisance to remain or continue, he cannot be held liable in action for
damages until he has been first notified or requested to remove the nui-
вапсе. Groff v. Ankenbrandt, 342.
2. NUISANCE. IT IS NECESSARY TO AVER THAT THE NATURAL FLOW OF
WATER HAS BEEN OBSTRUCTED, in action for obstructing water and over-
flowing plaintiff's land, for otherwise the complaint is susceptible of the
construction that the waters whose flow was obstructed were such as
the owner of the servient tenement was under no obligation to receive.
Id.
MEASURE OF DAMAGES.-WHERE THE NUISANCE IS NOT NECESSARILY A
PERMANENT ONE, but may be abated at any time by the defendants, the
measure of damages is a depreciation of rental value while the nuisance
existed, in a case where the alleged nuisance was the rendering of plain-
tiff's dwelling-house uninhabitable by reason of foul and unhealthy odors
emitted from defendants' stock-yards. Shively v. Cedar R. etc. Co., 471.
AM. ST. REP., VOL. VIL-61
4. IT IS NO Defense that NUISANCE WAS NECESSARY TO THE OPERATION
OF RAILROAD BY DEFENDANTS, in a case where the alleged injury was
to plaintiff's dwelling-house, caused by the proximity to stock-yards, and
the odors complained of were unwholesome, threatening the health of
the inmates of the house, it not being shown that they were unavoidable,
or that the yards might not have been located at another place on the
road with equal convenience to the road and its patrons. Id.
5. NUISANCE, POWER OF MUNICIPAL CORPORATION TO DECLARE WHAT IS A.—
A municipal corporation cannot make that a nuisance which is not such
in fact; therefore an ordinance which declares that "all hog-pens, or
lots now used as such, are hereby declared a nuisance, and shall be
abated," is too broad and sweeping in its provisions, and is invalid. Ez
parte O'Leary, 640.
6. CORPORATIONS.- FAILURE ON PART OF MUNICIPAL CORPORATION TO PRO-
VIDE MEANS for abating a nuisance wholly on private property, and
caused by the act of the cwner alone, or the omission of its officers to
abate the nuisance when the means are provided, gives no cause of action
against the corporation to one who is injured by such neglect of duty.
James v. Trustees, 589.
7. PRIVATE CITIZEN CAN ONLY ABATE PUBLIC NUISANCE WHEN IT BECOMES
OBSTRUCTION to the exercise of his private right. But when, by inter-
fering with and causing a deprivation of the enjoyment of his private
right, it becomes as to him a private nuisance, he may abate it. Brown
▼. De Groff, 794.
POWERS OF FISH INSPECTOR JUDICIAL. - The power of a fish inspector to
determine the quality and healthfulness of fish offered for sale in the
markets of a city, and if found to be unwholesome or unfit to be eaten,
to condemn and destroy it, is judicial in its nature, and he is not liable
to any one in an action for damages, however erroneously, ignorantly,
negligently, or carelessly he may act in the exercise of such power, pro-
vided he acts within his jurisdiction. Fath v. Koeppel, 867.
See BONDS; JUSTICES OF THE PEACE.
ADOPTED CHILD IS ENTITLED TO SUCCEED BY INHERITANCE TO ESTATE OF
ADOPTING PARENT, under sections 227, 228, and 1386 of the Civil Code
of California, which provide that the adopted child shall be “regarded
and treated in all respects as the child of the person adopting," and shall
"have all the rights and be subject to all the duties of the legal relation
of parent and child." Newman's Estate, 146.
See FRAUDULENT CONVEYANCES.
1. PARTNERSHIP. —ONE MEMBER OF PARTNERSHIP, WHETHER THEN EXISTING
OR DISSOLVED, CANNOT APPROPRIATE the firm assets by transferring
them in satisfaction of his individual debt without the authority or con-
sent of his copartners. Such transaction is a fraud on the latter, and
does not divest the title of the partnership in favor of the separate cred-
itor, whether he knew it to be partnership property or not. Cannon
▼. Lindsey, 38.
2. SET-OFF.-IN ACTION ON Partnership DEMAND, WHETHER BROUGHT IN
NAME OF PARTNERSHIP or their assignee, the defendant cannot set off
against the partnership demand an individual debt due him from one of
the partners. Id.
3. FUNDS MISAPPROPRIATED BY ONE PARTNER TO THE PAYMENT OF HIS IN-
DIVIDUAL DEBTS may be recovered back, if needed for firm purposes,
and if paid to a creditor who had knowledge of the misappropriation at
the time he received payment, and the misappropriation was without
the assent, express or implied, of the other members of the firm. Davies
v. Atkinson, 373.
4. FUNDS OF A PARTNERSHIP MISAPPROPRIATED TO THE PAYMENT OF THE
DEBTS OF A MEMBER OF THE FIRM, WITH THE ASSENT OF THE OTHER
MEMBERS, cannot be recovered, unless the partnership is insolvent, and
the moneys thus misappropriated are required to discharge its obliga-
tions. Id.
5. LACHES.—It is unreasonable to delay nearly two years after knowledge of
the misappropriation by a partner of the firm's money to the payment
of his debts before bringing action for its recovery. Id.
6. EVIDENCE. IN ACTION TO RECOVER MONEY ON THE GROUND THAT IT WAS
MISAPPROPRIATED BY A PARTNER TO THE PAYMENT OF HIS INDIVIDUAL
DEBT, the plaintiff, before he can succeed, must prove that the moneys
withdrawn by such partner were in excess of the sums which he was
entitled to draw from the partnership on his individual account. Id.
7. IN CASE OF AN EXECUTION Against One ONLY OF SEVERAL PARTNERS, the
proper mode is to levy upon and sell such partner's interest in the whole
of the partnership effects, and not in specific articles of the partnership
property. Gerard v. Bates, 350.
8. PARTNER IS NECESSARY PARTY TO BILL FOR ACCOUNTING, where by sale on
execution only part of his interest in the partnership is disposed of, and
the purchaser seeks for a settlement and adjustment by such bill of the
partnership affairs. Id.
9. SALE OF PARTNERSHIP PROPERTY ON EXECUTION — INJUNCTION. -Interest
of one partner in goods or property of the firm may be seized and sold
on execution; but specific articles of partnership property cannot be
levied upon and sold; and if the officer seeks to sell such specific arti-
cles, the other partners may enjoin the sale or delivery of the articles.
Williams v. Lewis, 403.
10. ESTOPPEL. — DECLARATIONS OF ONE PARTNER THAT PROPERTY LEVIED ON
AND SOLD UNDER EXECUTION is the individual property of another
partner, for the satisfaction of whose debt it is taken, when made with-
out the knowledge of the copartners, do not estop the firm from asserting
that it was partnership property; and notice to one partner that prop-
erty was about to be so sold, and his acquiescence in the sale, do not
estop the partnership from asserting its claim thereto. Id.
11. INJUNCTION - TENDER. — SALE OF PARTNERSHIP PROPERTY UNDER EXE-
CUTION MAY BE SET ASIDE, and purchaser of such property may be en-
joined from its removal where it has been wrongfully sold to and pur-
chased by him at such sale; nor is it necessary in such suit to tender
to the purchaser the price paid by him for the property, and it makes no
difference that a remedy at law by way of replevin for the property
might be brought. Id.
PERJURY.
See CRIMINAL LAW.
1. ACTION IS ONE SOUNDING IN TORT AND NOT UPON CONTRACT, when the
complaint alleges as the gravamen of the action that the defendant dis-
regarded his duty in the premises by negligently, wrongfully, and care-
lessly failing to make a proper diagnosis of the plaintiff's disease, and to
prescribe proper remedies therefor, although it also alleges an implied
contract of the defendant to treat the plaintiff in a skillful and proper
manner. Nelson v. Harrington, 900.
2. PHYSICIAN OR SURGEON IS BOUND TO EXERCISE SUCH REASONABLE CARE
AND SKILL as is usually possessed and exercised by physicians and sur-
geons in good standing, of the same system or school of practice, in the
vicinity or locality of his practise, having due regard to the advanced
state of medical or surgical science at the time, where he holds himself
out and accepts employment as such physician or surgeon, whether he
has been duly licensed or not. Id.
3. TO CONSTITUTE SYSTEM OF PRACTISE A SCHOOL OF MEDICINE, it must have
rules and principles of practice in respect to diagnosis and remedies,
which each member is supposed to observe in any given case.
4. CLAIRVOYANT PHYSICIANS ARE BOUND TO TREAT PATIENTS WITH ORDI-
NARY SKILL and knowledge of physicians in good standing practicing
in that vicinity, although, not having any fixed principles or formulated
rules for the treatment of diseases, they cannot be regarded as consti-
tuting a school of medicine. Id.
5. CLAIRVOYANT PHYSICIAN SUED FOR MALPRACTICE CANNOT BE HEARD TO
CHARGE WITH NEGLIGENCE the patient's father, because the latter, with
full knowledge of the defendant's methods of diagnosis and prescription,
employed him to treat his son. Id.
6. DEPOSITION, WHEN NOT ADMISSIBLE AS EVIDENCE IN CHIEF. In an action
against a physician for malpractice, a deposition of the plaintiff's father,
taken in a suit brought by the latter against the defendant for loss of his
son's services by the same malpractice, is not admissible as evidence in
chief against the plaintiff. Id.
1. WHERE EXTRA-PROFESSIONAL STATEMENTS ARE MADE BY COUNSEL IN AD-
DRESSING JURY, there is no error if matter is set right by court in such
manner that no harm could have resulted. Evansville etc. R. R. Co. v.
Guyton, 458.
2. REMARKS OF COUNSEL PROMPTLY DISAPPROVED BY COURT, AND COUNTER-
ACTED by the charge of the court to the jury, are not ground for re-
versal. Nelson v. Harrington, 900.
3. PARTY'S PLEADING IS TO BE TAKEN MOST STRONGLY AGAINST HIMSELF,
and most favorably to his adversary. Groff v. Ankenbrandt, 342.
4. PLEADING AND PRACTICE. - DUPLICITY OR REDUNDANCY is not ground of
demurrer, except in the case of dilatory pleas. Cannon v. Lindsey, 38.
5. DEMURRER. — Where RepliCATION IS FILED TO A PLEA, and the replica-
tion is demurred to, the demurrer will be carried back and sustained to
the plea itself, if that is defective. Shalucky v. Field, 617.
6. PLEADING AND PRACTICE. — PARTY SETTING UP AFFIRMATIVE DEFENSE has
the burden of proof to show it true. Little Pittsburg etc. Co. v. Little Chief
etc. Co., 226.
7. PLEADING AND PRACTICE. -PARTY MAY DENY wholly the wrong with
which he is charged, putting the party alleging it to the proof, relying
upon his inability to make such proof of any part of the whole wrong.
But the fact that the complaining party does succeed in proving a part
only of all the wrongs alleged is no evidence that defendant is surprised
in either fact or law. Id.
8. ANSWER, AVErments of, when Deemed Denied. — Allegations of agency
and authority pleaded as new matter in a reply are to be deemed to be
controverted by defendant without the filing of any pleading or affidavit
denying the same, under section 86 of the Kansas code, which does not
provide for any pleading to the reply, except a demurrer, and section
128, which provides that “the allegation of new matter in the reply
shall be deemed to be controverted by the adverse party, as upon direct
denial or avoidance, as the case may require," notwithstanding section
108, which provides that “in all actions, allegations of . . .
pointment or authority shall be taken as true, unless the denial of the
same be verified by the affidavit of the party, his agent or attorney.”
Continental Ins. Co. v. Pearce, 557.
9. NONSUIT IMPROPER WHEN. Where the liability of a defendant corpora-
tion, if any, must arise out of its failure to perform duties imposed by
its charter, or out of the negligent manner in which it performed those
duties, and the facts and the inferences are in dispute, a nonsuit should
not be granted. Keator L. Co. v. St. Croix B. Co., 837.
10. BILL OF EXCEPTIONS is in record, notwithstanding the rendition of the
judgment and the approval of an appeal bond intervened between the
overruling of a motion for a new trial and the giving of time within
which to file such bill. Louisville etc. Co. v. Wright, 432.
11. PRACTICE.—TO BRING INSTRUCTIONS INTO THE RECORD without a bill of
exceptions, the Indiana statute imperatively requires that they shall be
signed by the judge and filed. That they must be thus filed is a rule
of practice established by the legislature, which the supreme court can-
not change: R. S. 1881, sec. 533, clause 6. Id.
It is unnecessary to embody all the law of the case in
one instruction; and where a rule of law applicable to the case is given in
one instruction, it is not necessary to repeat it in another; if an instruc-
tion is not erroneous as to the law, and is not full enough, the party who
thinks it faulty should submit additional instructions. Id.
13. INSTRUCTIONS. — All instructions given must be considered together, and
if, so considered, they correctly and intelligibly state the law, and are
not confusing to the jury, the judgment will not be reversed because of
inaccuracy of some particular instruction. Id.
14. ALTHOUGH INSTRUCTION IS ERRONEOUS, yet if it appear from the finding
of the jury that it was a harmless error, it can furnish no ground of
complaint. Id.
15. IT IS NO ERROR TO REFUSE INSTRUCTION when there is no evidence to
which the same is applicable. Evansville etc. R. R. Co. v. Guyton, 458.
16. INSTRUCTIONS SHOULD STATE LEGAL PRINCIPLES APPLICABLE TO THE
FACTS OF THE CASE, AND NOT MERE GENERAL RULES OF POLICY which
may or may not be wise and proper in the conduct of a particular busi-
17. IF INSTRUCTIONS, TAKEN AS A WHOLE, ARE CORRECT, it constitutes no
ground for reversal that a portion of them taken separately are errone-
ous. Shively v. Cedar R. etc. Co., 471.
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