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The description of plaintiff's premises by metes and bounds, given in the complaint, shows that the whole western boundary thereof is the "right bank" of a river flowing in a northerly direction at that place Held, that such a boundary would not give him the rights of a riparian proprietor: Id.

But the complaint further alleges that said river flows "partly around and partly through" plaintiff's said land. Held, that this averment, taken as true, shows that plaintiff is a riparian proprietor on such river: Id.

The complaint further avers, in substance, that by reason of the unwholesome condition of the atmosphere around plaintiff's premises, caused by the nuisance complained of, plaintiff has been and is deprived of a great many customers and much patronage in his business as a tavern or saloon-keeper; that his profits have thus been diminished at least five thousand dollars a year; and that he and his family have been greatly injured in health, and subjected to frequent illness from the same cause. Held, on demurrer, that these averments show special and peculiar injury for which plaintiff may maintain an action: Id.

PARTNERSHIP. See Bills and Notes.

Real Estate bought with Partnership Funds.-Real estate purchased with partnership funds for partnership business, is treated in equity as partnership property, without regard to the manner in which it was bought, or to the person to whom the legal title was conveyed: Little v. Snedicor, S. C. Ala.

The heirs of one deceased partner, where the title was in him, will be treated as trustees for the surviving partner. It is immaterial that the trust should be expressed; if it exists and is clearly proved, it will be enforced as other resulting trusts: Id.

A bill filed for account and settlement of partnership affairs, praying that land, alleged to have been purchased by one of the partners, &c., be decreed partnership assets, &c., should set forth, by appropriate allegations, the contract or agreement of partnership, and the agreement and facts concerning the purchase of the land so as to enable the court to judge whether a co-partnership was in reality formed, and to see without doubt that the land purchased was to be partnership property: 1d.

Where it is alleged that the partnership was formed at a given time, in a certain year, when each of the partners contributed, as capital stock of the firm, the amounts respectively shown by an exhibit which does not show any such contributions at the time stated, but consists merely of a statement in figures of various sums of money as having been contributed by the parties respectively for a series of years, beginning after the year in which it is alleged the partnership was formed, there is repugnancy between the allegations and exhibit: Id.

PLEADING. See Corporation.

Immaterial Averments. It is only where the pleader attempts to declare upon the contract. in hæc verba, that a technical variance in an immaterial matter becomes of consequence; such particularity is not requisite when the contract is declared on according to its legal effect: Preston v. Dunham, S. C. Ala.

A note payable "by" the 1st day of November 1870, to "John L.

Dunham, agent or bearer," may be properly declared on as payable to John L. Dunham "on" the 1st day of November 1870: Id.

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What are included in Assessment.--An assessment for damages for land taken to widen a road, includes all damages occasioned by reducing the land so taken to the grade of such road, and consequently where the grade of such road was subsequently changed, the damages occasioned by such change were held not to include any but such as arose by the alteration of the road in its entire width from the old established grade to the new grade: Van Riper v. Essex Public Board, 9 Vroom.

SPECIFIC PERFORMANCE.

Family Arrangement-Want of Precision in Contract.-This was a bill for the specific performance of an alleged agreement to convey lands. Defendant is father of complainant, and the agreement set up is that the defendant, in consideration of the work already performed by complainant, and the money already paid by complainant to defendant, and of love and affection, undertook and agreed that if complainant would go on to said land and improve it, he, the defendant, would give complainant a good warranty deed of the same. The bill does not disclose the fact shown by the proofs, that there never was any written agreement. Held, 1. That the contract set out by the bill is very vague as to the kind and extent of the improvements to be made and the time within which they were to be made, and it furnishes no criterion by which to determine when the work had been performed, and that specific performance cannot be granted until the contract is made clear and definite. 2. That the proofs fail to establish any contract or to show possession taken with a view of carrying out any supposed contract; that they indicate nothing more than a vague intention of giving the land at some time or other. 3. That this case is an effort to make an agreement out of one of those family arrangements which are understood to rest on the will of the parties, where each sees fit to rely on an expectation and does not require a binding contract; and that whatever may be the hardships of being disappointed in such expectations, parties cannot ask courts to frame contracts in their behalf which they have neglected to make for themselves: Wright v. Wright, S. C. Mich.

STATUTE.

Repeal by new Act revising the same Subject.-A statute which revises the whole subject-matter of a former statute, works a repeal thereof, without any express words of repeal: Oleson v. G. B. & Lake Pepin Railway Co., 36 Wis.

Ch. 182, Laws of 1872 (relating to the grant of railroad aid by towns, &c.), provides (section 11) that if any county, town, city or vil lage shall issue and deliver to any railroad company any bonds in pursuance of the provisions of this act, it shall not thereafter issue or deliver any bonds or incur any liability in aid of the construction of

the railroad of such company, by virtue of the authority of any other law of this state. Held, that the words "other law of this state must be understood of other laws existing at the time of the passage of said ch. 282, as it was not within the power of one legislature to bind future legislatures by such a provision, and the subsequent passage of an act in conflict with it would operate as a repeal of said chapter pro tanto : Id.

Construction of Supplement.-An act and its supplement are to be construed as one law, so that the terms of the act may, in their construction with the supplement, have a broader meaning than they originally possessed: Van Riper v. Essex Public Road, 9 Vroom.

STREAM. See Nuisance.

Right of Flowage-User.-The same proof of user, which establishes the right to use the water of a stream in a particular way, is equally conclusive in establishing the limitations of that right. The doctrine of Burnham v. Kempton, 44 N. H. 78, affirmed: Griffin v. Bartlett, 55 N. H.

B. having gained by prescription a right to flow G.'s meadow, from October to June of each year, to the height of his ancient dam, repaired and tightened the dam, erected an additional mill, put in new and improved machinery consuming less water, and claimed the right to operate the mills as thus constructed, provided he did not raise the water above the top of his ancient dam. Held, that he could not flow G.'s land in a different manner nor to a greater extent than he had formerly done: Id.

G. having brought an action against B. for flowing his meadow, showed no title to the land flowed, except a deed dated in 1831, and no possession prior to that time. B. showed that G.'s meadow had been flowed prior to 1831 by a dam over which he (B.) had exercised control since 1868, and claimed that his right to flow B.'s meadow would be presumed, and that the burden of proof was on G. to show that he had acquired a right to hold his land free of water. Held, that the burden of proof was on B. to show that he had a right to flow as claimed by him: Id.

STREET. See Municipal Corporation.

TOWN. See Highway.

USURY.

Intent-Evidence of.—An intent on the part of the lender to stipulate for an unlawful rate of interest is essential, to render usurious a contract to pay more than a legal rate: Grant v. Merrill, 36 Wis.

But where it is shown that the lender knowingly accepted and retains such a contract, the intent is conclusively established: Id.

For a loan of $900 the lender's agent took defendant's note for $1000 with interest at ten per cent. (the highest legal rate), and gave such note to his principal, who then knew the amount thereof and of the loan, and the lender transferred such note to a third person, taking therefor his note for the same amount. Held, in an action on the first-mentioned note, that it was error to submit to the jury the question of the lender's intent: Id.

If one of the defendants, who was an accommodation maker, received from the other defendant a portion of the loan to indemnify him for signing the note, the amount so paid cannot be recovered from him in action directly on the note, by the owner thereof. Whether such plaintiff can recover the amount from said defendant in another action, is not here determined: Id.

There was some evidence that one of the defendants, for a valuable consideration, promised one D. to pay said note; but it does not appear that D. had any interest in its payment. Held, that such promise would not enure to plaintiff's benefit: Id.

VENDOR AND PURCHASER.

Option to cancel Contract-Loss of by Acts.-By the terms of a contract for the sale and purchase of land, the vendee was empowered to terminate the contract at any time before the second instalment became due, forfeiting the sum already paid. Subsequently he assigned his interest in said contract and in the land to a third party, who took and retains possession of the land under the contract. Held, that the vendee, by putting it out of his power to surrender or cancel the written instrument, or to restore to the vendor the possession of the land, abandoned the right to terminate the contract, and remains liable in an action thereon by the vendor: Stevens v. Millard, 36 Wis.

WATERS AND WATERCOURSES. See Canal Company; Municipal Corporation; Stream.

Riparian Rights.-Where a stream is a navigable highway for part of the year only for the purpose of running logs, it is to be considered as navigable and subject to the public easement only at such times in the year as when in its natural condition it is capable of being made use of for that purpose, and not when its whole capability for such use is created by artificial means and by abridging what but for the resort to these artificial means would be the unquestionable rights of riparian proprietors below; such a stream is a public highway by nature, but one which is such only periodically and while the natural condition permits of a natural use; during that time the public right of floatage and the private right of the riparian proprietor must each be exercised with due consideration for the other, and any injury which the latter receives from a proper use of the stream for floatage he must submit to as incident to his situation upon navigable waters; but at the periods when there is no highway at all there is no ground for asserting a right to create one by means which appropriate or destroy private rights, and an owner who dams up the water so as to interrupt the flow, and then lets the stream out at periods, to float his logs, is liable to an action for damages to a lower riparian owner: Thunder Bay River Boom Co. v. Speechley, S. C. Mich.

WITNESS.

Presumption as to Testimony of--When nothing appears to the contrary, it will be presumed that what a witness states is within his knowledge, and that his knowledge was derived from proper sources: Pearson v. Wheeler, 55 N. H.

THE

AMERICAN LAW REGISTER.

DECEMBER 1875.

GOOD-WILL.

(Concluded from p. 659.)

9. A contract to convey good-will is valid in law, but cannot be ́enforced in equity otherwise than by injunction, on account of the inadequacy of means at the disposal of a court of equity.

(a) In Bunn v. Guy, 4 East 190, the Lord Chancellor sent the following case into the King's Bench for the opinion of the court: Carpenter, an attorney and solicitor, entered into articles of agreement under seal with Bunn and Guy, who were also attorneys and solicitors, in consideration of certain sums of money, &c., to relinquish and make over all benefit and advantage of his practice and business to them, upon certain conditions therein expressed, so far as respected his business in London and one hundred and fifty miles from thence; that he would endeavor by all means in his power to influence his clients to become the clients of Bunn and Guy, and that he would also permit Bunn and Guy to practice as attorneys, under the style and firm of Carpenter, Bunn & Guy, for two years if necessary; that he would claim no share in the profits, but that he should be indemnified against all losses and risks to arise therefrom, and that Carpenter was to have nothing to do with the conduct of the business. A large part of the money due to Carpenter remained unpaid, and the question was whether such contract were good in law, so that Carpenter could recover in an action against Bunn and Guy. It was argued, that the permission by Carpenter to Bunn and Guy to use his name avoided the contract, as contrary to the principles of public policy. The contract was compared to a marriage brokage bond; Lord ELLEN

VOL. XXIII.-90

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