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ard et al. v. Shoemaker, Aud. of ceedings for partition, making B. and
...III C. parties defendants, and under the
the land, knew that A. had the right
at any time to compel partition, or in
the event that a division could not
be made, to have the land sold; and
hence the sale of the land in the suit
for partition was not a breach of the
bond to convey, made by B. to C.;
that after the sale B. was no longer
bound to convey, and C. was no lon-
ADMINISTRATOR, 6; Joint CON- veyance.
the purchase-money, and he was
entitled to have the residue of the
murrer upon the ground of defect of C. paid out of the proceeds of the
right to collect the residue when it
should become due................. Ibid.
5. Pleading.-- Cross Petition.- Improve-
for partition, for the value of improve-
Partics.-All persons interested in missioners have filed a report of parii-
any undivided interest, by mortgage, partition has been made, and a cross
Same.--A. and B. owned certain of the value of the improvements, in
to render judgment and ap- 2; JUSTICE OF THE PEACE, 3; MALIpoint new commissioners to make CIOUS PROSECUTIOX, I; MECHANICS partition.........
LIEN, 3; MORTGAGE, I, 2; I'ARTI
TION, 5; PROMISSORY NOTE, 2; PARTNERSHIP.
RAILROAD, 4, 5; REAL PROPERTY,
RECOVERY OF, 1, 2; SALE, 1, 3; See CONTRACT, I; EVIDENCE, 4, 5.
STATUTE OF LIMITATIONS; Su
PREME COURT, 5, 6, 7; TRESPASS; Partners.-Sale of Interest-Lien of VICIOUS ANIMAL, 2.
Taxes.-Set-off-Where one partner 1. Demand.-Where there is a conin a firm sold his interest in a stock tract to execute a conveyance of real of goods belonging to the firm to his estate, and no time is fixed for the co-partners, receiving their promis- delivery of the conveyance, a demand sory note therefor, and subsequently, before suit is instituted is necessary. to prevent a seizure and sale of the In such a case the complaint must goods for delinquent taxes, which allege a demand. Mather v. Scoles....I were a lien on the entire stock when 2.
Same.-Conveyance of Real Estate. said interest was so purchased, said In general, an action cannot be mainco-partners paid off the amount of tained upon an agreement to convey the taxes;
real estate until after a conveyance Held, that the partners who had so pur- has been demanded................ Ibid.
chased said interest could set-off 3. Demurrer Waived by Ansiver.-A against a like portion of the sum due party cannot, at the same time, demur on the note, the amount of taxes so to and answer a complaint. By paid by them which constituted a answering, he waives his demurrer. lien on the interest so purchased. City of Jeffersonville v. Ferryboat Evans et al. v. Bradford...........527 John Shallcross et al.......... .19
4. Promissory Note.- Complaint.PAYMENT.
Evidence.--In a complaint by M.and
B. upon a note, they alleged that they Application of Payments.- Where a were doing business under the firm purchaser of real estate encumbered name and style of M. & B., and that by mortgages assumes the payment the defendants were doing business of a portion of the mortgage debts, under the name and style of N. &1., as a part of the purchase-money, the and that the defendants by their note, amount so assumed becomes the per- a copy of which was filed with the sonal debt of the purchaser; the complaint, promised to pay the plainresidue is not the personal debt of tiffs, &c. purchaser, although he may be com- Held, that the note being set out, the pelled to pay the same to save his allegations of the complaint were property; and in such case a gener equivalent to a direct charge that the payment made by the purchaser on defendants, by the names of N. & V., the mortgage debts, will be applied by their note, promised to pay the to the portion for which he is per- plaintiffs by the names of M. & B. sonally liable. Snyder v. Robinson the sum mentioned in the note. et al.........
..311 Held, also, that the allegations in the
complaint as to the partnership or PENAL STATUTE.
firm name and style of the respective
parties, was mere surplusage, and not See TELEGRAPH COMPANY.
necessary to be proved, and might be
regarded as stricken out; and the PLEADING.
execution of the note not being
denied under oath, no proof was Sce AMENDMENT; CONTRIBUTION, 1, 3, necessary other than the note itself.
4; COUNTY COMMISSIONERS,4; DE- Napier et al. v. Maykew et al ...276 MURRER; DIVORCE, 4; EXECUTOR 5. Fraud.—To make a good charge AND ADMINISTRATOR, I, 2; FALSE of fraud, it must be shown in what IMPRISONMENT, I;
FRAUDULENT the fraud consisted. Kerr v. TA CONVEYANCE, 5; HUSBAND AND Slate, ex rel. Wray..................288 Wire, 20, 21; JOINT CONTRACT, 1, 16. Answer. – A paragraph of an
answer pleaded to the whole cause IAL FINDING; SUPREME COURT; of action, but answering only a part VERDICT; WITNESS. of it, is bad on demurrer. Summers Arrest of judgment. See REAL Prop
et al. v. Vaughan ct al.............323 ERTY, RECOVERY OF, 2. 7. Cross Complaint.- The only differ
ence between a complaint and a 1. Judgment, Non Obstante Veredicio. cross complaint is, that the first is Where a general denial is pleaded, it fied by the plaintiff, and the second is error to sustain a plaintiff's motion by the defendant. Both contain a for judgment, non obstante veredicto. statement of the facts, and each Cox v. Vickers ct al....
...27 demands affirmative relier. In the 2. Open and Closc.---The plaintiff is making up of the issues and the entitled to open and close in all cases trial of questions of fact, the court where the defendant answers the is governed by the same principles general denial......... ............Ibid. of law and rules of practice in the 3. Nisjoinder of Causes.-A cause one case as in the other. Ewing et cannot be reversed for error in overal. v. Patterson....
.. 326 ruling a demurrer for misjoinder of 8. Complaint.–Exhibit.-Settlement. causes of action. The 7. M. & I.
Where a complaini is based upon an R. R. Co. v. Gent et al...... ...39 alleged settlement, a balance struck, 4. Bill of Exceptions.-Where a moand a promise to pay the balance, tion to dismiss a cause appealed to and the exhibits filed with the com- the circuit court from the board of plaint contradict the allegations, county commissioners is sustained, the and conclusively show that there has Supreme Court will presume in favor been no settlement and no promise of the correctness of such action of to pay, the complaint will be bad on the court below if no bill of excepdemurrer. Gilmore v. B'd of Com. tions be filed. Dritt v. Dodds.....63 Putnam Co.......
... 344 5. Open and Close.—Notwithstanding
no general denial is filed, if it is nec. POOR PERSONS.
essary for the plaintiff to introduce
proof to entitle him to recover full Where one has been permitted to damages, he will be entitled to open prosecute or defend as a poor person, and close. Smith et al. v. Dallas et the court must assign him an attorney al.........
..255 and all other officers requisite for the 6. Motion to Strike Out.--A paraprosecution or defense. *Kerr v. The graph of an answer which is equiva
State, ex rel. Wray..................288 lent to the general denial should be 2. Same.-Clerk.- If the clerk is not stricken out on motion, in a case
assigned as one of the officers requi- where the general denial is pleaded site, he will not be bound to furnish elsewhere in the same answer. Por. a transcript of the proceedings gra- ter et al. v. Wilson et al............348 tuitously........
..Ibid. 7. Bill of Exceptions.--On the 8th of 3. Ability to Labor.- Where a party June, a cause was disposed of, and
is permitted to prosccute or defend sixty days were given to file a bill of as a poor person, the action of the exceptions and on the 27th of No. court cannot be questioned by show- vember following, a bill of exceping that the person is of sufficient tions was signed by the judge. To physical ability to labor for and ac- the bill a certificate was appended by quire the necessary means to defend the judge, stating that it was presented or prosecute; if he has not the means, and left on his desk in his necessary it is immaterial whether the want of absence from home; and that he did means has arisen from one cause or not return until after the time for another
..Ibid. signing the same had expired.
Held, that as it did not appear that the PRACTICE.
bill was presented within the time
limited, it could not be regarded as See AMENDMENT; INTERROGATORIES part of the record......... Ibid.
TO JURY; JUDGMENT; NEW TRIAL; 8. Demurrer.-Exception.- Where a PARTIES; PARTITION, 5, 6; RECOGNI- demurer to a complaint is overruled, ZANCE; RECORD; REFEREES; SPEC. but no exception to the ruling is en
tered in the court below, and such ruling is not assigned in the Supreme Court as error, no question as to the sufficiency of the complaint can properly arise in the record. Richardson v. Reed et al........ ..356
See CHARITABLE USE.
PRINCIPAL AND AGENT.
1. Agent.-Commissions.—If an agent does not perform his duties, or is guilty of gross negligence, or gross misconduct, or gross unskilfulness, he not only becomes liable to his principal for the damages the latter may have sustained, but he also forfeits all claims to commissions. Porter et al. v. Silvers...... 295 2. Same.-Where A. was the agent of B. for the sale of certain real estate, and C., knowing of the agency, came to A. and effected an exchange of his own real property for that of B; Held, that A. could not charge C. for his services. Simonds v. Hoover..412 3. Same.-Where A. was the agent of
B. to sell certain real property, and was employed by C. afterwards to dispose of certain real estate for him, and he effected an exchange of the property between B. and C. Held, that A. could not charge C. a commission for effecting the exchange. Ibid.
PRINCIPAL AND SURETY.
Held, that the agreement to apply the money in the hands of B. to the payment of the partnership debts of A. and B. was a sufficient consideration to support an agreement to extend the time of payment of the note; and a reply, that it was agreed between A. and B., at the time of the dissolution of the partnership, that B. should pay the debts, will not show the absence or want of consid eration..... .......Ibid. Evidence.-In a suit by A. on a promissory note made by B. and C., where B. makes no defense, and C. appears and makes a separate defense as surety of B., a letter of B. written to A. is inadmissible as evidence against C. Pierce v. Goldsberry..317
See OFFICE AND OFFICER, I, 2.
a suit upon the note by an assignee of A., C. answered that when the note became due, and before the assignment to the plaintiff, and without his knowledge or consent, it was agreed between A. and B. that in consideration that B. should apply certain money in his hands to the payment of outstanding partnership debts of A. and B., the time of the payment of the note of B. to A. should be extended.
See HUSBAND AND WIFE, 22; PLEAD
Commercial Paper.-If a note is payable at a bank in this State, a stipulation therein for the payment of attorney's fees should suit be instituted thereon will not destroy the commercial character of the paper.― Stoneman v. Pyle.......... ........103
See CONTRACT, 1; FRAUDULENT CON-
See TURPIN v. CLARK, 378.
1. Discharge of Surety.-To discharge
Evidence. In a suit upon a note governed by the law merchant, negotiated before due, where the defense is that it was procured by fraud, and that the plaintiff purchased with a knowledge of the facts, the plaintiff may be asked by his attorney when testifying as a witness in his own behalf, whether or not, at the time of the purchase of the note, or prior thereto, he had any notice or knowledge of any fraud in the obtaining of the note, or that a patent right for which
it was given was invalid or value- show the consolidation charged. The
Ibid. F. C. & St. L. R. W. Co. v. Kain.291
suel L. before a justice of the peace railroad company, running and oper-
by virtue of the statute, for torts com-
.........372 the statute for killing stock, it must
claim was filed against an estate for proved, that the road was not secure-
track of said union company over
that a train of cars owned and run by
defendant was backing at the time;
that the bell of the locomotive was
ringing; that there were four or five
cars in the train and no method of
an animal killed by a locomotive, at from the rear of the train; nor was
.......173 was any person in advance of the train