stances which ought to excite the suspicion of prudent men. Second National Bank v. Morgan, 652.

INSUFFICIEnt Defense. -An affidavit of defense to an action on a nota, averring that the makers believe, and expect to be able to prove, that the holder is not a holder for value before maturity, but that he took the note under circumstances and with such knowledge of the facts as to put him on notice and inquiry, which would have led to a discovery that the note was obtained by fraud, is insufficient, as fail. ing to assert a fact, but only an expectation of ability to prove one, and, as a basis for such expectation, the taking of the note under suspicious circumstances. No actual circumstance of suspicion is stated, and no fact impeaching the bona fides of the holder or affording a ground of relief to that effect anywhere appears. Second National Bank ▼. Morgan, 652.

& NEGOTIABLE PROMISSORY NOTES KNOWN TO BE SECURED BY A MORTGAGE DIFFER FROM NOTES NOT SO SECURED in this, that a purchaser or indorsee of the former takes them subject to rights previously acquired, if all the facts taken together, and including the means of knowledge and any circumstances which should lead to inquiry, show that to permit him to disregard such rights would be inequitable. Murphy v. Bernard, 340. ACCOMMODATION PAPER.—SUCCESSIVE INDORSERS for the accommodation of a third person are liable in the same order as indorsers for value, though each of them knew that the indorsement was for accommodation Moore v. Cushing, 393.

See JUDGMENts, 14; Usury.

NEW PROMISE.

See LIMITATIONS OF ACTIONS, 5,

NEW TRIAL.

1. JURY TRIAL.-THOUGH THE VERDICT OF THE JURY ACCEPTS THE UNCOR ROBORATED EVIDENCE OF ONE INTERESTED WITNESS as against the evidence of five disinterested witnesses, and the trial court expresses its own conviction to be in conflict with that of the jury, but denies a new trial, its action must be affirmed by the appellate court. To what length the trial courts shall go in their efforts to correct injustice by granting new trials is in their discretion, not in that of the appellate courts. Gibson v. Western N. Y. etc. R. R. Co., 586.

EVIDENCE TO Support VERDICT.—Although the evidence is barely suffi. cient to uphold the verdict, no error is committed by refusing to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict. Jackson v. State, 25.

& IMPROPER ADDRESS TO THE JURY.-The fact that the prosecuting attorney uses grossly improper language touching the defendant in his address to the jury is no ground for a new trial, in the absence of objection or ruling of the court at the time the language is used. Van Pollnitz v. State, 72.

See APPEAL, 7, 9.

NONSUIT.

IN AN ACTION BY THE PAYER OF A CHECK against the bank on which it is drawn, a nonsuit should not be ordered for want of evidence of

funds on hand if there is some testimony of the existence of suffi cient funds to the credit of the drawer's account to meet the check when presented. Simmons Hardware Co. v. Bank, 700.

See APPEAL, 12.

NOTICE.

See CHATTEL MORTGAGES, 6; CORPORATIONS, 3, 4, 6, 14; MORTGAGES, 8, 11; OFFICERS, 3.

NUISANCE.

See INJUNCTIONS, 2; MUNICIPAL CORPORATIONS, 7.

OFFICERS.

1. IMPEACHMENT AS A MEANS OF REMOVAL is not required in the case of officers who hold by appointment either by the governor or some super vising board authorized to make such selection and appointment. State v. Hewitt, 788.

2 WHO REMOVABLE BY IMPEACHMENT ONLY.-Under a constitution providing that the governor and other state and judicial officers, except county judges, justices of the peace, and police magistrates, shall be liable to impeachment, and all officers not liable to impeachment shall be subject to removal for misconduct or a gross incompetence, in such manner as may be provided by law, the term "state officers" includes only such general officers as immediately belong to one of the constituent branches of the state government. A member of the board of trustees of the state agricultural college is not one of these state offi. cers, and, therefore, the legislature may authorize his removal for cause and without a resort to the proceeding by impeachment. State v. Hewitt, 788.

3 REMOVAL OF WITHOUT NOTICE.-A constitution or statute authorizing the removal of a public officer for cause entitles him to notice of his contemplated removal, and a right to be heard in opposition thereto. A sentence or order of removal without such notice and opportunity to be heard with respect thereto is void. State v. Hewitt, 788. TRAFFIC IN PUBLIC OFFICES.-Agreements for compensation to procure appointment to a public office, or to resign such office in another's favor for a consideration, are void, because against public policy. Basketv. Moss, 463.

& MORTGAGE TO SECURE CONTRACT TO PROCURE APPOINTMENT TO OF FICE INJUNCTION. A mortgage given to secure an agreement for compensation for securing an appointment to public office is void, because against public policy, and an attempted sale under a power contained in such mortgage may be restrained by injunction. Basket v. Moss, 463.

See LIBEL 1, 2; Mandamus, 2.

ORDINANCES.

See MUNICIPAL CORPORATIONS, 3, 4; RAILROADE, 14

PARAMOUR.

See HOMICIDE, 1, 2

AM. BT. REP., VOL. XLIV.-65

PARENT AND CHILD.

1 AN AGREEMENT TO PAY A MOTHER A DESIGNATED SUM IF SHE WILL PERMIT HER SON UNTIL HE ARRIVES AT AGE TO LIVE with and be educated by his grandfather is valid, and may be enforced by her. Such a contract is not against public policy if the interest of the child is intended to be furthered thereby and parental solicitude and affection are not extinguished. Enders v. Enders, 598.

2 CUSTODY OF CHILD AS BETWEEN RESIDENT AND NON-RESIDENT PARENTS.—A father, who with his child is domiciled within the state, is entitled to its custody as against the nonresident mother, especially when it does not appear that the child desires to go to its mother, or that its welfare will be promoted by a change of custody, or that the father is not a proper person to have it. Harris v. Harris, 471. & MOTHER IS Dependent upon SON, WHEN.-A mother is dependent upon her eleven year old boy, and he contributes substantially to her support, where it appears that the family are laboring people, muta. ally dependent one upon the other, for a support; that the boy resides with his parents; that he works with his father upon a farm; that his labor is worth six dollars per month; that he renders services to his mother about the house in the performance of her household duties; and that the benefit of his labor and services thus realized by the parents goes toward the support of themselves and their family. 4 lanta etc. Ry. Co. v. Gravitt, 145.

See NEGLIGENCE, 4, 5.

PARTITION.

1. A PARTITION BECOMES EFFECTIVE if made under a division directed and confirmed by a county court, and the respective parties take and hold possession in accordance therewith, though no deed of partition is executed. Jones v. Bigstaff, 245.

2 THE IMPLIED Warranty resulting from a partition of land does not extend to, nor operate in favor of, purchasers from the original par ties to such partition. The benefit of such warranty is confined to the parties to the petition and their heirs, and does not, as in the case of an express warranty, extend to their vendees. Jones v. Bigstaf,

245.

8. TO EVERY PARTITION OF LAND THE LAW ANNEXES A WARRANTY, whether expressed in the deed or not. Jones v. Bigstaff, 245.

See LIMITATIONS OF ACTIONS, 2

PARTNERSHIP.

1. SUITS BY PARTNERS AGAINST EACH OTHER.-One partner cannot recover of another an unliquidated and unsettled balance of a partner. ship business; and where two companies are composed in part of the same individuals no action at law can be maintained by one against the other. Beede v. Fraser, 824.

2 ASSUMPSIT BY ONE PARTNER AGAINST ANOTHER.—As a general rule assumpsit will not lie by one partner against his copartner, in respect to any matter connected with the partnership transactions, or which would involve a consideration of the partnership dealings, but, if the parties by an express agreement separate a distinct matter from the partnership dealing, and one expressly agrees to pay the other

a specified sum for that matter, assumpsit will lie on the agreement though the matter arose from the partnership dealing. Hence, upon dissolution, and after a balance has been struck and agreed upon by the partners, one may maintain assumpsit against the other to recover his balance upon an implied promise. Beede v. Fraser, 824.

& SUIT BETWEEN PARTNERS AFTER DISSOLUTION-ASSUMPSTI.-If three persons compose one firm, and two of the same parties constitute another firm, and the trilateral firm is dissolved upon an agreement that the partner not a member of both firms shall have all the debts due the firm and shall discharge all of its liabilities, such partner can maintain assumpsit against the other two parties for a debt due the trilateral firm from the other, although the instrument of dissolution was under seal, as the action proceeds upon the promise which is implied from the fact that the plaintiff has been made the owner of the debt, and does not arise from an express promise to pay the debt. Beede v. Fraser, 824.

PARTY WALLS.

1. AN ACTION AT LAW will lie to recover of one using a party wall his proportion of the costs of the same. Walker v. Stetson, 350. 2 ADVERSE POSSESSION-Where a party wall is erected to designate the boundary between two lots of land, and stands partly on the land of each of the coterminous owners, neither can be regarded as having any adverse possession of the land of the other on which the wall is constructed, from the use which he makes of it as a support of the building on his own lot, but he may acquire a prescriptive right to use the wall in the manner in which he has enjoyed it. Putzel v. Drovers' etc. Bank, 298.

& RIGHT TO Remove and ReBUILD.—If a party wall exists situate partly on the lands of cotermninous proprietors, and one of them wishes to erect a building which the wall is inadequate to support, he has a right to pull down the wall and replace it by another, if he does so within a reasonable time and with the least inconvenience to his neighbor. The owner desiring to erect a new wall must do so at his own expense, and allow the other the same right of support as before, and indemnify him for the necessary expenses which he may incur in protecting his property from the consequences of the removal of the old wall. Putzel v. Drovers' etc. Bank, 298.

4. THICKENING THEREOF.-If party wall has been constructed on adjoining lots upon an agreement that each party might build one-half of the division wall of the adjoining lots, each half of the wall when used by the owners of the adjacent lots for building purposes to be paid by them to the extent so used, and the wall so constructed has been paid for accordingly, and afterward one of the parties increases the height of such wall and thickens and strengthens the wall and foundations by building on his own land, the other party has a right to insert timbers in the wall not extending beyond his own line, on paying for one-half of the increased height of the wall, and cannot be compelled to pay for the expenses of the thickening of the wall, nor for the land used for sustaining the part of the wall added in the process of thickening, though without this thickening the wall would not be adequate to sustain a building of the height to which the wall has been increased, nor would it conform to the building laws of the city. The additions made to the wall for the purpose of thickening and strength

ening it are not in any proper sense a party wall. They belong to the party who made them, and can be removed by him at his pleasure. Walker v. Stetson, 350.

PATENTS.

See CONTRACTS, 3.

PAYMENT.

1. A PAYMENT IS VOLUNTARY if made with a full knowledge of the facts, upon a demand unjustly preferred, and to which the payer has a valid defense, where no special damage or irreparable loss would be incurred by making such defense, and there is no claim of fraud upon the part of the person making the payment, and payment is not necessary to obtain the possession of property wrongfully withheld or to the release of the person of the payer. Nor will the fact that such payment was accompanied by a protest make that involuntary which otherwise would be voluntary. Wessel v. Johnston Land etc. Co., 529.

2 PAYMENT, WHEN VOLUNTARY.-The payment of money to redeem property from a sale thereof made under a mortgage by one in possession of the property, when he knows that the mortgage has been satisfied by the payment or tender of the whole mortgage debt, though made under protest, must be regarded in law as a voluntary payment, and, therefore, cannot be recovered by action. Wessel v. Johnston Land etc. Co., 529.

See AGENCY, 3; Mortgages, 6, 7.

PENALTY.

See TELEGRAPH COMPANIES, 6, &

PERSONAL PROPERTY.
See LICENSE.

PHOTOGRAPHS.

See EVIDENCE, 10.

PHYSICIANS AND SURGEONS
See WITNESSES, 6.

A

PLEADING.

1. JUSTIFICATION.—If a Defendant Sued for an Assault seeks to justify it he must set up such defense in his answer. It is not admissible under the general issue. Lambert v. Robinson, 326.

2 RES JUDICATA-PLEADING.—If an answer seeking to interpose the plea of res judicata leaves in doubt what was decided in the former action the plea is sufficient. Fahey v. Esterley Machine Co., 554.

8. AMENDMENT OF DECLARATION. A declaration alleging as a cause of action the failure of a telegraph company to deliver at a certain place, with due diligence, a particular message therein set out which the company had received for transmission and delivery, may be amended by alleging that the message was received by the company at another point than that stated in the original declaration without changing the cause of action, and such amendment is properly allowed. Conyers v. Postal Tel. Cable Co., 100.

See LIMITATIONS OF ACTIONS, 1; SETOJE.