2. Possession by Surviving Husband-Suit by Heir-Substitute for Eject-
ment. Although the lands of a deceased wife who never had a
child born alive are in the possession of her surviving husband,
a bill for partition of such lands may be filed by one of her heirs
against the surviving husband, and the remaining heirs. Such
a suit is not a substitute for an action of ejectment. Plunkett v.
Bryant, 814.
1. Extra Compensation-Special Agreement-Burden of Proof.—In the
absence of a special agreement to that effect, one partner cannot
claim extra compensation for services rendered the firm, and the
burden of proving such an agreement is on the partner asserting
it. Scott v. Boyd, 28.
2. Partnership Associations-Failure to Comply with Statute-Liability
of Members.-Persons who have in good faith attempted to orga-
nize a partnership association under the provisions of section 2878
of the Code, but have failed in some particulars, are not liable as
general partners. The measure of their liability is the unpaid por-
tion of their subscriptions to the capital. If they have put prop-
erty into the association, they should have credit therefor at its fair
cash value at the time it was contributed, and only be compelled
to pay the balance, if any, of their subscriptions to the capital.
Deckert v. Ches.-Western Co., 804.
3. Partnership Associations-What is Capital-Property Input.-The
word "capital" as used in section 2878 of the Code, relating to
partnership associations-prior to the amendment of that section
-means cash or its equivalent; and an attempted organization
without such cash or its equivalent is not a valid partnership
association under said section prior to its amendment. Deckert
v. Ches. Western Co., 804.
4. Partnership Associations-Remedy of Creditors-Code, Sec. 2881
Cumulative. The remedy afforded by section 2881 of the Code to
creditors of the partnership associations to proceed against the
members of the association to the extent therein indicated is not
exclusive, but cumulative only, and such creditors have the right
to go into equity to enjoin liquidating trustees of such association
from making sale of the assets before the rights of creditors are
ascertained and settled, and for other equitable relief. Deckert
v. Ches.-Western Co., 804.
5. Signing Firm Name-Signing Name of Co-Partner.-While each mem-
ber of a trading partnership may, as a general rule, bind his asso-
ciates by signing the firm name, he has no authority, by virtue
of the partnership relation alone, to bind a co-partner by signing
his individual name to partnership paper. Pettyjohn v. Bank,
See NEGOTIABLE INSTRUMENTS, 1.
1. Discriminations-Code, Sections 1965 and 1969-Revised Statutes
United States, Section 4237.-By pilot laws of this State (Code,
sections 1965 and 1969) all vessels, except coast wise vessels with
a pilot license, inward bound from the sea to certain enumerated
points in the State, and all vessels outward bound from such
points to the sea, are subjected to certain regulations and rates.
All such vessels are subject to the same regulation, and, under the
same circumstances and conditions, are required to pay the same
fees. These statutes make no such discrimination as is prohibited
by section 4237 of Revised Statutes of the United States. Dar-
den v. Thompson, 635.
2. Inland Vessels-Discriminations—Revised Statutes, Section 4237.—
Section 1990 of the Code, exempting from pilotage all vessels
bound to or from any point on the Potomac river, is not in con-
flict with section 4237, Revised Statutes of the United States, pro-
hibiting "any discrimination in rates of pilotage, or half pilotage,
between vessels sailing between the ports of one State and vessels
sailing between the ports of different States." All vessels bound
to or from any point on the Potomac river are exempted by section
1990, no matter to what points they are bound, or from what
points they may come. There is no discrimination. Darden v.
3. State Laws-Compulsory System for Sea-Going Vessels-Inland Vessels
-Discrimination-Revised Statutes, Section 4237.-A State may
establish a compulsory system of pilotage as to vessels coming
from the sea to her inland ports, or going from such ports to the
sea, without establishing such a system as to vessels trading
between her inland ports, or between her inland ports and the
ports of another State, which can be reached without going to sea,
and such discrimination is not forbidden by section 4237, Revised
Statutes of the United States. Local peculiarities and necessities
can be best provided for by the legislation of the States respec-
tively, and such has been the view of the Federal Government.
Darden v. Thompson. 635.
1. Allegation-Proof-Suit on Express Contract-Proof of Implied Con-
tract. In an action against a firm on the express promise evi-
denced by their notes and the endorsement thereof, there can be
no recovery upon the implied promise arising from the use of
the proceeds of the notes of the firm. The allegation and proof
must correspond. Pettyjohn v. Bank, 111.
2. Bill of Particulars-When Filed-Object-Defects.—The object of a
bill of particulars is to advise a defendant of the precise nature
and extent of the demand asserted against him. According to
the usual and better practice it should be demanded before plead-
ing to the merits, but if not demanded until a later period, and
then a bill is filed which, standing alone, would be insufficient, it
will be deemed sufficient if, taken in connection with the other doc-
umentary evidence in the cause, it supplies all needful information
to the defendant. Amer. Hide, &c., Co. v. Chalkley, 458.
3. Grounds of Defence-What May Be Shown-Premature Action.—The
objection that an action has been prematurely brought cannot be
relied on where the defendant has stated his grouunds of defence
under section 3249 of the Code, and that objection is not speci-
fied. Farmers, &c., Ass'n v. Kinsey, 236.
4. Contract for Sale of Goods-Refusal to Accept-Resale-Notice— Arer-
ment in Declaration. In an action to recover damages for breach
of contract to receive and pay for goods where title and possession
are in the seller, it is not necessary to allege in the declaration
notice to the defendant of the plaintiff's election to resell at de-
fendant's risk. Under the practice in this State, the question of
such notice is one of evidence rather than of pleading. Amer.
Hide, &c., Co. v. Chalkley, 458.
5. Demurrer Action on Insurance Policy Provisions of Charter-Code,
Section 3251.-The charter of an insurance company under which
a policy is issued is not made a part of the declaration by filling the
original policy, or a sworn copy thereof, with the declaration, under
the provisions of section 3251 of the Code, as amended, under
which the action is brought, and hence the provisions of such char-
ter cannot be considered on demurrer. Farmers, &c., Ass'n v.
Kinsey, 236.
6. Immaterial Discrepancies-Demurrer—Amendment.—In an action to
recover damages for refusal to receive and pay for hides contracted
for, a declaration which alleges the sale of 3,000 hides, and tender
of 4,000 hides, is not bad on demurrer. The discrepancy could
not have affected the merits of the cause, as the defendant was
under no obligation to receive the additional number. The decla-
ration might have been amended at the bar. Amer. Hide, &c.,
Co. v. Chalkley, 458.
7. Sales-Refusal to Accept-Remedy-Measure of Damages—Notice.—
Where the contract for the sale of personalty is executory, and the
title and possesssion still remain in the seller, his remedy against
a buyer who unlawfully refuses to accept and pay for the goods,
is an action of assumpsit on a special count to recover damages for
the breach of contract, and the measure of his damages is the differ-
ence between the contract price of the goods and the net price
which they produce at a resale, fairly made, after deducting all ex-
penses incurred in taking care of the goods and selling them. The
seller should give to the buyer notice that he intends to sell and
hold him liable for the loss, if any. The seller cannot sue for the
contract price of the goods. Amer. Hide, &c., Co. v. Chalkley,
PRETERMITTED CHILDREN. See WILLS, 1.
1. Fraud of Agent-Compensation-Title Taken by Agent-Rents.-An
agent to purchase real estate, who takes title to himself, and,
claiming as owner, uses and enjoys the land, and refuses to sur-
render possession to his principal upon the offer of the latter to
reimburse him, with interest, for all advances made in securing title
to the property and to assume payment of the unpaid purchase
money, cannot recover of his principal compensation for making
the purchase. The bad faith of the agent deprives him of the
right to compensation. So, also, where an agent has retained pos-
session of land, and of personal property thereon bought and
paid for by his principal, and has used and enjoyed the same as
his own under a claim of right, and has refused to deliver posses-
sion thereof to his principal until the same has been recovered
from him by the principal after lengthy litigation, the agent is
properly chargeable with a reasonable annual compensation for
the use and occupation of the land, and with the value of the per-
sonal property not delivered to the principal. Jackson v. Pleas-
anton, 282.
2. Suit to Recover Land-Rents-Taxes.-In a suit by a principal against
his agent to recover land purchased by the latter for the former,
it is not error to charge the agent with a reasonable rent for the
land while in his possession, instead of abating the interest on the
purchase price of the land until the principal obtained possession.
Nor is it error to allow the agent credit for taxes paid on the land
while he was in possession. Jackson v. Pleasanton, 282.
PUBLIC USE. See EMINENT DOMAIN, 6.
Parol Agreement-Possession and Improvements. A purchaser of real
estate in 1879, under a parol agreement, who entered upon the
land and held open, notorious, and peaceable possession thereof,
and erected permanent and costly improvements thereon, has
superior title to a deed of trust creditor whose deed was made
in 1885, and who had notice of the prior sale. Peery v. Elliott,
709.
See VENDOR AND PURCHASER.
1. Grade Crossing Obstructions to Sight or Hearing-Duty of Traveller-
Stop Case at Bar-It is the duty of one about to cross a railroad
to look and listen for approaching trains, and if the view is ob-
structed, or hearing is rendered difficult by reason of noises in the
neighborhood, a higher degree of caution is required of both the
traveller and the railroad company than if said obstructions and
noises did not exist; the degree of caution required of both parties
being in proportion to the danger caused by the obstruction and
noise. But under the facts in this case it cannot be said that it
was the duty of the traveller as a matter of law, to stop in order
to look and listen, if such duty exists in any case. Southern R.
Co. v. Aldridge, 142.
2. Grade Crossing-Negligence-Stop, Look, and Listen-Case at Bar.—
Viewed as upon a demurrer to the evidence, it is established in
this case that the train which caused the accident complained of
approached a grade crossing in a city at a rate of speed prohibited
by city ordinances. No notice was given of its approach. The
headlight was extinguished and the watchman at the crossing
failed to perform his duty. The deceased was passing along a
much-frequented street, approaching a crossing where, under the
city ordinance, there should have been a watchman to warn him,
and there was no train due at the time.
Held: The railroad company was guilty of negligence, and although
the accident might not have happened if the deceased had stopped
or paused, still the failure of deceased to stop, did not, as a matter
of law, make a case of contributory negligence so plain as to justify
the court in withdrawing it from the consideration of the jury.
Southern R. Co. v. Aldridge, 142.
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