way or street more difficult, and which thus increases the danger of injury to persons or property, would be a nuisance within the meaning of the term. 1bid. 12. At common law, when the matter arising on an inquiry as to a nuisance, consists in the obstruction of a highway, the question of nuisance or no nuisance, depends upon the fact whether the passage through such highway is rendered less commodious. Ibid. 13. The erection of a market house in the centre of a street, the highway of a city, by a city corporation, if interfering with a commodious passage through such street, would be a nuisance. Ibid. 14. Chancery has the right to exercise its jurisdiction, in the case of a nuisance, in restraining the exercise or the erection of, and in some instances to abate, that from which irreparable damage to individuals, or great public injury will ensue. Ibid. 15. And this in the case of a public nuisance. independent of the concurrent jurisdiction of the common law courts by indictment. Ibid. 16. The jurisdiction of courts of equity in affording preventive relief in cases of public nuisances, is clearly defensible, when the fact of nuisance is placed beyond doubt. Ibid. 17. And even where the fact of nuisance is questionable, equity sometimes affords relief, by way of injunction, until a trial at law, when its denial would produce great public inconvenience. Ibid. 18. One indicted for a nuisance cannot defend against the legality of a conviction by alledging that he only acted as the agent of another, but it seems that such matter might well be urged to a jury in mitigation of a discretionary penalty or fine." State v. Bell, 5 P. 366. 19. Where a defendant since the passage of statute 1836, instead of merely suffering the obstructions to remain, within twelve months before the finding of an indictment, does by himself or agent, any act shewing an intention to preserve a nuisance, such for example as making up a fence, &c., he is subject to its penalties. Freeman v. State, 5 P. 372. 20. Chancery will enjoin a nuisance on a bill filed by an individual which although it affects him is also public in its character, but as one of the transcendant powers of the court it will be exercised sparingly, and in those cases only where the nuisance would inflict an irreparable injury, incapable of being adequately compensated in damages, or which threatens materially to injure the comfort or existence of those living near it, and chancery will not interfere in this extraordinary manner to sustain or inforce even an undoubted right capriciously or pragmatically insisted on. Rosser v. Randolph, 7 P. 238. OFFICE AND OFFICERS. 1. The act of 1827, giving officers a summary remedy on indemnity bonds in consideration of levies, are not to be construed strictly against the obligees. Atwood v. Craig, 3 S. & P. 21. 2. It seems that quo warranto would be the proper remedy to test the right of an individual to an office or franchise, the duties and privileges of which he may be exercising and enjoying. State ex rel. Att'y Gen. v. Paul, 5 S. & P. 40. 3. The supreme court has no authority on such a relation to inquire into the constitutionality and propriety of an appointment by the legislature of a judicial officer. Ibid. 4. Inactions against officers for failure to return property at a particular day, the courts are privileged to hear any matter of enquiry in excuse for the failure, and where the amount ordered is under $20, such excuse may be shewn by the oath of the officer. Starnes & Co. v. Pierce, 2 P. 227. 5. Though a judge who is a party to or interested in a suit is not competent, to try it, yet a defendant cannot object to his presiding at the time of trial by way of challenge or plea. Lyon v. State Bank, 1 S. 442. See Sheriff-Judgment on Motion. PARENT AND CHILD. 1. It seems that a mother has no power as the natural guardian of her child to make a binding contract for the service of her daughter during her minority; but admitting she possesses this power, it must be by deed of indenture and not by parol. Morris v. Low & Rogers, 4 S. & P. 123. 2. A father, as the natural guardian of a child during infancy, possesses no authority by this relationship to exercise any control over the property of Isaacs per pro ami. v. Boyd, et al. 5 P. 388. the minor. 3. A father is not bound for the contract of his child even for articles suitable and necessary, unless an actual authority be proved, or the circumstances be sufficient to imply one. Owen v. White, 5 P. 435. 4. So long as the child continues under the direction and control of the father, it is for his discretion to determine what is necessary and suitable for him, unless it appear that there has been a clear omission of parental duty in providing for his maintenance. Ibid. 5. If a child leave his father's house to seek his fortune in the world, or avoid domestic discipline and restraint, or escape from justice, the authority of the father to purchase necessaries is not implied. 1 bid. 6. It is a question of fact whether the authority of the parent can be inferred from the proof; but if there be no evidence given from which it could be inferred, the judge may so charge. Ibid. 7. It is competent for the county court to set aside the claim of a father to the wardship of his child's estate in favor of a stranger, if it appear that the father is unfit for the station, and therefore the relation forms no exclusive claim to the wardship. Huie v. Nixon, et al. 6 P. 77. See Guardian and Ward. PARTIES TO ACTIONS. 1. The statute 1818, allowing one or more parties to be sued, and discontinuance as to those not served-held, not to extend to persons jointly liable on open account for goods. Where the writ was against two, and the declaration stated that one was not in custody-not a sufficient discontinuance. Kennedy v. Russel & Patton, A. R. 78. 2. Acknowledgment of service by one partner is binding on all the firm, though after the death of one of them, or after dissolution of the partnership. Click & Morgan v. Click, A. R. 79. 3. If an administrator makes himself a party to a suit brought by his intestate, without order of court, the suit will not abate, for he waives the irregularity. Jones v. Acre, adm. Campbell, A. R. 6. 4. An agent may sue in his own name on an obligation or promise made to him as such. Newbold, exr. v. Wilson, A. R. 12. 5. Note payable to two, as executors-if one die, the right of action is solely in the survivor; and the executor or administrator of the deceased executor cannot join. Waters v. Creagh & Shields, A. R. 128. 6. In an action against husband and wife, service of writ on husband is sufficient. Wyn & wife v. Williams, A. R. 136. 7. Plaintiff dies, pending the action, record must show a revival by his representative. Kennedy, adm. v. Jackson, A. R. 137. 8. On a note payable to administrator, the right of action follows the administration, and the administrator de bonis non, may sue. Ex'r Caller v. Adm. de bonis non of Berney, A. R. 206. 9. On writ of error, by the putative father of a bastard and his security, on the order of the county court requiring him to give bond and security, the judge of the county court, and not the mother of the child, should be made defendant. Brown v. McLane, A. R. 208. 10. A writing, not under seal, acknowledging an indebtedness to F, and promising to pay C; F has a right of action, and being a promissory note, consideration need not be stated. Bowies adm. v. Foster, A. R. 264. McGoffin v. Westbrook, A. R. 58.) 11. One of two joint obligees dies, the right of action is in survivor, and if both die, it is with the representative of the survivor, and not with the representatives of both the obligees. } Adm. of Bebee and executors of Brewer v. Miller, A. R. 364. 12. In an action against several, on a joint contract the plaintiff may, on seperate plea of one defendant or on suggestion of death of one of the defendants, proceed to judgment against the others. Hallet et al. v. Allaire, A. R. 360. 13. Action by two, as partners, one disclaims all interest, the other may proceed in name of both. Allen v. White & Morris, A. R. 365. 14. Where the writ was against two, and served but on one, no discontinuance as to the other, but a judgment by default as to both-judgment reversed. Smith & Howell v. Winthrop, A. R. 425. 15. Writ in name of two partners, declaration by one as survivor, is sufficient shewing of the death of the other. Baldwin v. Stibbins, A.R. 180. 16. One assigns to his firm, and they assign; action will lie against them semble. Brown & Parsons v. Torver. A. R. 370. 17. Trustees to sell town lots, with power to appoint successors, on a note to them; an action will not lie in the names of the successors. Bumpass v. Richardson, 1 S. 16. 18. Misjoinder of parties, not cured by statute regulating trials on appeals from justice. Smith et al. v. Cobb, 1 S. 62. 19. A discontinuance as to one, of several joint obligors, who was served with process, is a discontinuance as to all, aliter, if not served. Adkins et al. v. Allen, p. 130. 20. Co-securities cannot join in an action to recover money paid by them, for their principal, unless the payment be made by them out of a joint fund. Parker v. Leek & Lumberton, 1 S. 523. 21. Where there are two executors, to make them parties to a cause as defendants, process must be served on both. Jones, ex'r. v. Wilkinson, 3 S. 44. 22. The supreme court will not entertain an ex parte motion, to make individuals parties to a suit on the return of a general scire facias only, served on them without evidence of their representative character. Heirs of Caller v. Malone, 1 S. & P. 305. 23. In an action brought on a decree from another State, made in favor of three administrators, in the name of one; and the declaration averred that the two co-administrators had been removed-held, that it was properly brought. Green v. Foley, 2 S. & P. 441. 24. When there is a joint interest existing on a contract, and one of the parties dies before action commenced, such action must be brought in the name of the survivor, and a failure to set out in the declaration the contract as it existed, and to show the interest of the plaintiff to be as survivor, is error. Callison v. Little 2 P. 89. 25. When suit is commenced against two upon a promissory note, and one of the defendants dies, the action should be prosecuted against the survivor. In such case, it is error to revive the suit against the representatives of the deceased party and proceed to judgment against them. Gayle v. adm. Agee, 4 P. 507. 26. When suit is commenced against two, and upon the death of one, it is prosecuted against his representatives without noticing the survivor, a discontinuance as against the latter ensues. Gayle & Heustis v. Adm. Agee, 4 P. 507. 27. A and B, by distinct writings, covenant with C-the first to do certain duties, the other to become the surety for their performance-A and B cannot be joined in an action to recover for a breach of the covenant. Childress v. McCullough, 5 P. 54. 28. An action cannot be maintained by the treasurer of a Jockey Club on a note payable to him, not by name, but as "Treasurer," the said company not being incorporated. Ewing v. Medlock, 5 P. 82. 29. When it is alledged in a petition, filed to supersede an execution, that the party in whose name it was issued, had died before the commencement of the suit, upon which the execution was founded, on appeal from a judg; ment dismissing the petition-held, that the supreme court would not, on motion, receive a suggestion of the death of the plaintiff in execution, and make his representative a party. Richardson v. Williams, 5 P. 234. 30. It is a general rule of law, that the party only, in whom the legal interest is vested, can maintain an action for an injury done to property. Jones et al. v. Sims & Scott, 6 P. 138 See Writ of Error-Chancery-Verdict-Discontinuance. PARTNERS AND JOINT-OWNERS. 1. Acknowledgment of service by one partner binds the firm, although after the death of one of them, or the dissolution of the partnership. Click & Morgan v. Click, A. R. 79. 2. One partner cannot charge the firm by writing under seal, unless authorized by articles of partnership. Morgan v. Scott & Click, A. R. 82. 3. The joint plea of non est factum, of two partners is sufficiently verified by the affidavit of one. Garner et al. v. Baker, A. R. 67. 4. One partner assigns a note to the firm, who assign it to a third person, an action will lie against the partnership on the indorsement. Brown & Parsons v. Torver, A. R. 370. 5. Partnership liable in assumpsit, for goods which have come into their possession, though sold to one separately and so charged on the books of the vendor-and parol evidence admissible to prove the said possession. Adm. Pulmer v. Humphreys, A. R. 383. 6. If plaintiff and defendant purchase lands in partnership, plaintiff may maintain an action at law for what he has paid beyond his proportion. Bumpass v. Webb, 1 S. 19. 7. An action will lie against two partners on a written contract in the name of one only; and evidence aliunde, may be given to prove that it was a partnership contract. Sneed v. Barringer & Rhodes, 1 S. 134. 8. An action at law lies by one partner against another on a writing, ascertaining the amount due on a settlement, although there be no express promise to pay. McColl v. Oliver, 1 S. 510. 9. One partner cannot bind his co-partner by affixing the partnership name to a note, as security for a debt of a third person, unless by his assent, the proof of which lies on the plaintiff; and, a note thus signed is, by our statute, placed on a footing of the original payee, and is subject to the same defence. Rolston v. Click et al. 1 S. 526.* 10. A creditor of a firm receiving from one of the partners after the dissolution of the firm, the paper of a third person, in payment of this partnership demand, and in exchange for the paper of the firm, thereby releases the other partners. But if the paper received be a forgery, then the transaction is void, and the original liability of all the partners still exists. Pope & Hickman v. Nance & Co. for Lucas, 1 S. 354. 11. If no notice be given of dissolution, it will be considered as still existing to those who have had prior dealings actual notice, and to those who had none, notice in a gazette would be sufficient. Lucas v. Bank Darien, 2 S. 280. 12. A change of pursuits by one partner will not be sufficient notice, nor will a removal from the State. Ibid. * In this case the character of the note is not set out, and the opinion of the court waives a decision upon the question of paper negotiable under our statate. |