1. A PARTITION UNDER THE INTESTATE LAWS MUST in- CLUDE ALL the realty of which the parties are seised as cotenants. (Deshong v. Deshong, 855.)
2. PARTITION OF ESTATES IN REMAINDER cannot be com- pelled unless specially authorized by statute. In Pennsylvania, how- ever, an act of the legislature provides that a partition may be had notwithstanding there may be a life estate in a part of the property with remainders in fee subject to the rights of the life tenants. (Deshong v. Deshong, 855.)
PARTNERSHIP-ONE PARTNER MAY SUE ANOTHER AT LAW ON A PROMISSORY NOTE executed by the partnership to him, where there is a statute providing that all contracts which by the common law are joint shall be construed as joint and several, and that in all cases of joint obligations of copartners and others, suits may be prosecuted against any one or more of them who are liable. (Willis v. Barron, 672.)
PARTNERSHIP-POWER OF PARTNER TO BIND FIRM. A purchase of goods by one partner in the name of the firm in quantities so large as to be entirely beyond the needs of the part- nership, and for speculative purposes, though the goods be of the general character dealt in by the partnership, is beyond the scope of the partnership business and does not bind the firm, unless an acquiescence in such act is proven, either directly or indirectly, by the usual course of dealing. Such purchase does not bind the firm, when the other members thereof repudiate the transaction as soon as it comes to their knowledge. (Maurin v. Lyon, 568.)
3. PARTNERSHIP - COUNTERCLAIM.-Where a person is sued as copartner on a promissory note executed by the firm, an unsettled partnership claim cannot be pleaded as a counterclaim, and is not any defense to the action. (Willis v. Barron, 672.)
See Attorney and Client, 3; Corporations, 10.
See Constitutional Law, 1; Statutes, 7.
PERPETUITIES.
See Charities, 10.
1. PRACTICE.-A pleading cannot be rejected or struck out as sham when it does not plainly appear to be false, where the con- clusion that it is false can be reached only by weighing and balanc- ing the probabilities arising from certain physical facts. (Pitts- burgh etc. R. R. Co. v. Fraze, 377.)
PLEADING-STRIKING OUT OF ANSWER-WHEN PROP- ER. A motion to strike out an answer will be granted if its allega- tions are, in substance, the same as those of former answers, to which demurrers have been sustained, although it contains a statement that all former and amended answers are withdrawn. (Hoyt v. Beach, 461.)
3. ABATEMENT, PLEA IN.-A DEFECT OF PARTIES PLAINTIFF can be urged only by a plea in abatement, where such defect is not apparent on the face of the complaint. (Sheridan Gas etc. Co. v. Pearson, 402.)
4. PARTIES PLAINTIFF-DEFECT-WAIVER OF OBJEC TION.-An objection that there is a defect of parties plaintiff is deemed to have been waived where no plea in abatement was inter- posed. (Sheridan Gas etc. Co. v. Pearson, 402.)
5. PRACTICE. THE OBJECTION THAT THE PLAINTIFF HAS NOT LEGAL CAPACITY to sue, if not taken by answer or demurrer, is waived. (Meyer v. Barth, 124.)
6. PRACTICE.-If a motion, taken as a whole, is not sustainable, the court is justified in denying it, though the moving party is en- titled to a part of the relief sought. (Baum v. Thoms, 368.)
7. CRIMINAL LAW-ARRAIGNMENT-PLEA.-If a defend- ant is arraigned before a justice of the peace and pleads not guilty, it is not necessary for him, on appeal to a county court, to be re- arraigned, or to replead in that court. (Poole v. People, 245.) See Corporations, 16-18; Eminent Domain, 4; Evidence, 2; Marriage and Divorce, 4; Municipal Corporations, 26-29.
CONSTITUTIONAL LAW-RIGHT TO REGULATE PLUMB- ING BUSINESS.-A statute which provides that no person shall en- gage in the business of plumbing unless he shall have passed an examination as to his competency and qualifications, and procured a license, and providing a penalty for a violation, does not infringe in any sense the constitutional rights of the workman, and is but the ordinary exercise of the police power of the state. (State v. Gardner, 785.)
See Interstate Commerce, 6.
POWER COUPLED WITH AN INTEREST.-If a power is coupled with an interest, it survives the person giving it, and may be executed after his death. (Carter v. Slocomb, 714.)
See Adverse Possession; Ejectment; Waters, 1.
See Appeal, 20; Evidence, 6, 7; Husband and Wife, 1; Notaries Puo- lic, 2, 3; Process, 2; Railroad Companies, 5.
PRIVILEGED COMMUNICATIONS. See Attorney and Client, 4, 5.
1. A SUMMONS is issued when it is put out of the clerk's office under his sanction and authority, and given to an officer for the purpose of being served. (Houston v. Thornton, 699.)
2. SUMMONS.--THE PRESUMPTION THAT A SUMMONS WAS ISSUED on the day it bears date is not rebutted by the fact that the sheriff's indorsement of its receipt by him bears a later date. (Houston v. Thornton, 699.)
3. PROCESS-SERVICE UPON NONRESIDENTS.-If a justice of the peace issues process for defendants residing outside the county, it must be issued or addressed to an officer of the county where it is to be served. (Durham Fertilizer Co. v. Marshburn,
4. PROCESS-EXEMPTION FROM SERVICE OF NONRESI- DENTS.-Summons or other civil process cannot be served upon a non-resident who comes into the state for the sole purpose of attend- ing a litigation in the courts of that state as a suitor or a witness. (Cooper v. Wyman, 731.)
5. PROCESS-EXEMPTION FROM SERVICE OF-TIME COV- ERED.-NON-RESIDENTS who come into the state for the purpose of attending its courts either as suitors or witnesses are exempt from the service of civil process from the time of their coming, and until they have had reasonable time for returning. (Cooper v. Wyman, 731.)
PROCESS-EXEMPTION FROM SERVICE OF-NONRESI- DENTS' REMEDY.-Service of civil process upon a non-resident suitor or witness while attending the courts of the state as such suitor or witness is not void but voidable. His remedy is not by motion to dismiss the action, but by motion on special appearance to set aside the return of the service. If the motion is denied the ruling may be reviewed on appeal. (Cooper v. Wyman, 731.)
PROCESS-MALICIOUS ABUSE OF.-Process must have been used to accomplish some unlawful end, or to compel the party against whom it has issued to do some collateral thing which he could not legally be compelled to do, in order to support an action for malicious abuse of process. (Docter v. Riedel, 40.)
8. PROCESS-MALICIOUS ABUSE OF.-If a creditor, know- ing that his debtor is able and will pay a judgment note on de- mand, without making such demand enters judgment on the note at 10 o'clock at night, and immediately issues execution and levies it by forcibly breaking into the debtor's store, with intent to in- jure his business and credit, the creditor is not liable to an action for malicious abuse of process. (Docter v. Riedel, 40.)
CONTEMPT OF COURT-PROHIBITION AS A REMEDY.- If the matters charged do not constitute a contempt of court, and it appears that immediate imprisonment is threatened, a writ of prohibition affords an adequate remedy. The accused is not obliged to wait until sentenced or imprisoned and to seek relief by habeas corpus, writ of error, or certiorari. (State v. Circuit Court, 90.)
PROXIMATE CAUSE.
See Negligence, 2; Railroad Companies 8.
PURCHASE.
See Deeds, 6, 7.
1. RAILROADS-PASSENGERS-DUTY TO STOP AT STA- TION NOT SCHEDULED.-A passenger, whether with or without a ticket, must ascertain before boarding a railroad train whether it stops at the station of his destination. If he fails to do so, the rail- road company is under no obligation to stop at such station, contrary to its published schedule. (Schiffler v. Chicago etc. Ry. Co., 35.) 2. RAILROADS-CONTRIBUTORY NEGLIGENCE OF PAS- SENGER.-A boy, seventeen years of age, of ordinary intelligence, who has made previous railroad journeys alone, must be held to as- sume the risk of jumping from a moving train at a station at which the train is not scheduled to stop, although the conductor promised
to slow up the train for him and he jumped under the impression that the promise was being kept. (Schiffler v. Chicago etc. Ry. Co., 35.)
3. NEGLIGENCE-PROXIMATE CAUSE.-The act of a passen- ger in jumping from a train while it is in rapid motion is neither the natural nor the probable consequence of a failure to stop the train according to promise. Hence, such failure is not the proximate cause of injury to the passenger arising from the jump. (Schiffler v. Chicago etc. Ry. Co., 35.)
RAILWAYS-CROSSINGS-DUTY OF TRAVELERS AT.-In attempting to cross a railway track, a traveler must listen for sig- nals, notice signs put up as warnings, and look attentively up and down the track. If a traveler, by looking, could have seen an ap- proaching train in time to escape, it will be presumed, in case he is injured by a collision, either that he did not look, or, if he did look, that he did not heed what he saw. (Pittsburgh etc. R. R. Co. v. Fraze, 377.)
5. RAILWAYS-PRESUMPTION RESPECTING A PERSON INJURED WHILE CROSSING.—When a person crossing a railway track is injured by collision with a train, the fault is prima facie his own, and he must show affirmatively that his fault or negligence did not contribute to the injury, before he is entitled to recover therefor. (Pittsburgh etc. R. R. Co. v. Fraze, 377.)
6. RAILWAY CROSSINGS.-The testimony of the plaintiff in- jured at a railway crossing by collision with a train that he looked and listened is not sufficient to support a verdict in his favor if the physical facts are such that if he did look and listen attentively, he must have heard or seen the approaching train in time to escape in- jury therefrom. (Pittsburgh etc. R. R. Co. v. Fraze, 377.)
7. RAILROAD COMPANIES SELF-COUPLERS - NEGLI- GENCE. The failure of a railway company to equip its freight-cars with self-coupling devices is negligence per se, for which it is liable in damages to an employé who receives an injury while coupling cars by hand, whether he is guilty of contributory negligence or not. (Greenlee v. Southern Ry. Co., 734.)
8. RAILROAD COMPANIES SELF-COUPLERS - NEGLI- GENCE-ASSUMPTION OF RISK.-Although an employé remains in the service of a railway company, knowing that its cars are not equipped with self-couplers, as required by law, it is liable to him for an injury received while coupling its cars by hand. (Greenlee v. Southern Ry. Co., 734.)
9. RAILROADS-POWER OF CONDUCTOR.-It is not within the apparent power of the conductor of a railway passenger train to bind the company by a promise to change the published schedule of stops to be made by his train. (Schiffler v. Chicago etc. Ry. Co., 35.)
RATIFICATION.
See Equity, 7; Judgment, 9.
1. A RECEIVER OF A RAILROAD IS NOT AN AGENT OF EITHER PARTY to the suit, and neither is responsible for his con- tracts or for his misfeasance or nonfeasance of his office. The lia- bilities incurred by him are, strictly speaking, the liabilities of the court appointing him. (Farmers' Loan Co. v. Oregon Pac. R. R. Co., 822.)
2. RECEIVER-LIABILITY OF PLAINTIFF FOR COSTS AND EXPENSES OF.-A plaintiff who commences suit to foreclose a mortgage on a railway, in which a receiver is subsequently ap-
pointed, is not liable for wages or other obligations incurred by such receiver, though the proceeds of the property prove insufficient to pay the same. (Farmers' Loan Co. v. Oregon Pac. R. R. Co., 822.)
REFORMATION OF INSTRUMENTS.
See Equity, 4-7; Executions, 6.
1. A RELEASE OF A CLAIM FOR DAMAGES for personal in- juries cannot be avoided on the ground that it subsequently appears that they were more serious than apprehended at the time of the settlement. (Kane v. Chester Traction Co., 846.)
2. RELEASE OF CLAIM FOR DAMAGES-ATTEMPT TO AVOID FOR FRAUD IN ITS PROCUREMENT.-One having a claim of damages for personal injuries received through the neg- ligence of a railway corporation, which he is induced to settle for an amount much less than claimed, cannot avoid such settlement on the ground that it was procured by the false representations of an agent of the corporation that if he went to law he would get nothing, because the judge was a stockholder in the corporation, and it would buy up the jury, the witnesses, and even the claimant's own attorneys. (Kane v. Chester Traction Co., 846.)
RENTS AND PROFITS. See Ejectment, 2.
REPLEVIN.-A JUDGMENT IN FAVOR OF THE DEFEND- ANT IN REPLEVIN who has given bond and retained possession of the property is not in the alternative, because he is already in possession. (Cox v. Martin, 604.)
See Sheriffs; Shipping, 2.
RIPARIAN RIGHTS. See Waters.
RUBBER STAMP SIGNATURE. See Banks and Banking, 4, 5.
RULES OF COURT.
See Appeal, 19.
SALVATION ARMY. See Charities, 8.
1. SCHOOLS-EXCLUSION OF CHILD FOR PARENT'S MIS- CONDUCT.-If a parent, whether father or mother, goes to the schoolroom of a lawfully established public school; and, in the presence of his or her children and other pupils publicly calls into question the justice or correctness of a decision of the teacher in a matter of discipline relating to such children; uses offensive and Insulting language to such teacher, acts in such a manner as to in- terrupt the exercises of the school, and conducts himself or herself in such manner as to bring the teacher and the discipline of the school into contempt in the eyes of the pupils, it is the duty of the authorities of such school to exclude from the schoolroom the child or children of such parent, although the child thus excluded has
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