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ard et al. v. Shoemaker, Aud. of ceedings for partition, making B. and
State, et al..........

...III C. parties defendants, and under the
Lucrative Offices.— The office of proceedings the land was sold by
mayor of a city incorporated under order of the court.
said general law and that of director | Leld, that the contract of sale between
of the state prison are both lucrative B. and C, must be held to have been
offices, and the election of one who is made with reference to the legal inci-
such director to the office of mayor dents pertaining to the land; that C.,
and his acceptance thereof will va- when he contracted with B. for the
cate his office of director......... Ibid. purchase of an undivided interest in

the land, knew that A. had the right
OPEN AND CLOSE.

at any time to compel partition, or in

the event that a division could not
See PRACTICE, 2, 5.

be made, to have the land sold; and

hence the sale of the land in the suit
P

for partition was not a breach of the

bond to convey, made by B. to C.;
PARTIES.

that after the sale B. was no longer

bound to convey, and C. was no lon-
See ATTACHMENT, 4; EXECUTOR AND ger in a condition to demand a con-

ADMINISTRATOR, 6; Joint CON- veyance.
TRACT, 1, 2; MORTGAGE, 1,4; Par- Held, also, that B. held the legal title
TITION, 2, 3, 4; REDEMPTION; only as security for the payment of
Town, 4.

the purchase-money, and he was

entitled to have the residue of the
Practice - Defect of Parlies.--A de- purchase-money coming to him from

murrer upon the ground of defect of C. paid out of the proceeds of the
parties must specifically point out the sale, if there was sufficient of it; if
defect and designate the proper not sufficient, he had a right to retain
parties. Kelly v. Lort, Ex's..... 106 the notes of C. as evidence of his

right to collect the residue when it
PARTITION.

should become due................. Ibid.

5. Pleading.-- Cross Petition.- Improve-
Jurisdiction.-In a proceeding for ment.--A claim of defendants in a suit
partition, the court has ample power

for partition, for the value of improve-
to settle the rights of parties inter- ments made on the real estate, must be
ested in the land; and if it has to be presented by cross petition, and should
sold, their rights are the same in the be filed before the judgment of parti-
proceeds that they were in the land; tion and the appointment of commis-
and the court has power to adjust sioners; but it is not error for the
and secure their rights, whether legal court, in its discretion, to cntertain
or equitable, in the proceeds of such such petition for the adjustment of
sale. Milligan v. Poole et al...... 64 the rights of the parties, after the com-

Partics.-All persons interested in missioners have filed a report of parii-
the land should be made parties.. Ibid. ition. Stafford et al. v. Nutt et al...93
3. Liens.- Persons holding a lien on 6. Improvements.Where a report of

any undivided interest, by mortgage, partition has been made, and a cross
judgment, or otherwise, if made par- petition for the adjustment of im.
ties to the suit, will be bound by the provements has thereafter been filed,
partition, and limited in their claims and the value of improvements made
to the share set off to the party under by the defendant ascertained, the
whom they claim..... ....... Ibid. plaintiff has a right to pay his share

Same.--A. and B. owned certain of the value of the improvements, in
real estate as tenants in common. B. money, and retain his full share of
sold his undivided interest to C., and the common property; and if the
gave him a bond for a deed when plaintiff so elects to pay in money,
paid for, and put him in possession; the report of the commissioners
a part of the purchase-money was should be affirmed; and in such case,
paid by C. and his notes given for it is error to vacate the original
ihe balance A. then instituted pro- judgment of partition, and proceed

2.

anew

to render judgment and ap- 2; JUSTICE OF THE PEACE, 3; MALIpoint new commissioners to make CIOUS PROSECUTIOX, I; MECHANICS partition.........

......Ibid.

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

1.

a

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

PREROGATIVE.

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

3.

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

PRISON DIRECTOR.

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.

PROMISSORY NOTE.

See HUSBAND AND WIFE, 22; PLEAD
ING, 4.

I.

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-
VEYANCE, 6.

See TURPIN v. CLARK, 378.

1. Discharge of Surety.-To discharge
a surety on account of indulgence
granted to the principal, the indul-2.
gence must be for a definite period
of time, and founded upon a new
consideration. There must be a new
contract concluded between the cred-
itor and the principal debtor, by
which the hands of the former are
tied for a definite period of time from
suing the latter. Menifeev. Clark..304
2. Same.-Consideration.-Agreement
to Extend Time.-Where A. and B.
had been partners, and B. made a
note to A., with C. as his surety, in

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

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it was given was invalid or value- show the consolidation charged. The
less,

Ibid. F. C. & St. L. R. W. Co. v. Kain.291
3. Pleading.Cause of Action.-A. 3. Lease. - Liability for Torts.-A

suel L. before a justice of the peace railroad company, running and oper-
upon a promissory note made by B., ating a railroad under a lease from
payable to the order of C. There another railroad company, cannot be
was no indorsemert of the note by held liable, either at common law or
C. to A.

by virtue of the statute, for torts com-
Held, that the filing of the note as the mitted by the lessor prior to the execu-
only cause of action was insufficient, tion of the lease.....

.Ibid.
and that the case was not one of a 4. Killing Stock.- Pleading:-Toren-
mere defect of parties. Hull v. Con- der a railroad company liable under
over's Ex'rs......

.........372 the statute for killing stock, it must
4. Evidence of Scttlement.-Where a be alleged in the complaint, and

claim was filed against an estate for proved, that the road was not secure-
work and labor done, for money had ly fenced. It is not sufficicnt to say
and received by, and services and that the road “was not fenced ac-
attendance upon, the deceased dur- cording to law." The I. C. & L.
ing his sickness; and the defense R. R. Co. v. Robinson..... --380
was that the work and labor and 5. Same.- Pleading.– To be good at
money and services were performed common law, a complaint against a
and paid under a valid contract; and railroad company for negligently kill-
under the plea of set-off promissory ing stock must allege that the injury
notes were offered in evidence, given did not result from the negligence of
to the decedent by the person present-

the plaintiff....

...Ibid.
ing the claim at various times during 6. Death Caused by Negligence.- In-
the period for which he demanded struction.-Evidence.-In an action
compensation for labor and attend- against a railroad company for negli-
ance, it was the duty of the court to gently causing the death of A., it ap-
instruct the jury that these notes appeared from the evidence, that A.
were prima facie evidence of a settle- and others in the employment of a
ment between the claimant and the union railway company were at work
deceased. Bishop, Administrator, v at a certain point on the railroad
Welch .....

.521

track of said union company over
which trains could pass at that point;

that a train of cars owned and run by
R

defendant was backing at the time;

that the bell of the locomotive was
RAILROAD.

ringing; that there were four or five

cars in the train and no method of
1. Injury to Animals.--The owner of communicating with the engincer

an animal killed by a locomotive, at from the rear of the train; nor was
a point on a railroad where the road there any brake in working order on
is not senced, may abandon the ani- the car farthest from the locomotive,
mal, and the railrod company will be although a brakeman was on the rear
liable for the value of the animal end of the car, the locomotive being
when injured. The O. & M. R. R. at the other end of the train; nor
Co. v. Hays........

.......173 was any person in advance of the train
Sane. --- Consolidation.-Evidence. to warn others of its approach. The
Variance.-A complaint against the locomotive was in charge of the
P., C., and St. L. railway company, fireman, the engineer being absent to
charging that a railroad corporation procure a drink. The other persons
known as the C., C., and I. C. rail. employed with B. at work on the
way company killed an animual be- track stepped off, and some one
longing to the plaintiff, and after the called to him, “look out," when B.,
killing consolidated with another rail. instead of stepping back, stepped
road company, and is now run and forward, and was struck and killed.
known as the P., C., and St. L. rail- The fireman and one brakeman were
way company, is not supported by the the only persons in charge of the
evidence, if the evidence fails to train. This instruction was asked

2.

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