answer pleaded to the whole cause of action, but answering only a part of it, is bad on demurrer. Summers et al. v. Vaughan et al.............323 7. Cross Complaint.-The only difference between a complaint and a cross complaint is, that the first is filed by the plaintiff, and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief. In the making up of the issues and the trial of questions of fact, the court is governed by the same principles of law and rules of practice in the one case as in the other. Ewing et al. v. Patterson...... ....326 8. IAL FINDING; SUPREME COURT; VERDICT; WITNESS. Arrest of judgment. See REAL Pro?ERTY, RECOVERY OF, 2. 1. Judgment, Non Obstante Verediclo. Where a general denial is pleaded, it is error to sustain a plaintiff's motion for judgment, non obstante veredicto. Cox v. Vickers et al... ..27 2. 3. Complaint.-Exhibit.-Settlement. Where a complaint is based upon an alleged settlement, a balance struck, 4. and a promise to pay the balance, and the exhibits filed with the com plaint contradict the allegations, and conclusively show that there has been no settlement and no promise to pay, the complaint will be bad on demurrer. Gilmore v. B'd of Com. Putnam Co.......... POOR PERSONS. ·344 1. Where one has been permitted to prosecute or defend as a poor person, the court must assign him an attorney and all other officers requisite for the prosecution or defense. `Kerr v. The State, ex rel. Wray......... ....288 2. 5. 6. Same.-Clerk.-If the clerk is not assigned as one of the officers requisite, he will not be bound to furnish a transcript of the proceedings gratuitously..... ...Ibid. 7. 3. Ability to Labor.-Where a party PRACTICE. See AMENDMENT; INTERROGATORIES TO JURY; JUDGMENT; NEW TRIAL; PARTIES; PARTITION, 5, 6; RECOGNIZANCE; RECORD; REFEREES; SPEC Open and Close.--The plaintiff is entitled to open and close in all cases where the defendant answers the general denial....... .............Ibid. Misjoinder of Causes.—A cause cannot be reversed for error in overruling a demurrer for misjoinder of causes of action. The J. M. & I. R. R. Co. v. Gent et al...............39 Bill of Exceptions.—Where a motion to dismiss a cause appealed to the circuit court from the board of county commissioners is sustained, the Supreme Court will presume in favor of the correctness of such action of the court below if no bill of excep tions be filed. Dritt v. Dodds.....63 Open and Close.-Notwithstanding no general denial is filed, if it is necessary for the plaintiff to introduce proof to entitle him to recover full damages, he will be entitled to open and close. Smith et al. v. Dallas et al......... ..255 Motion to Strike Out.-A paragraph of an answer which is equivalent to the general denial should be stricken out on motion, in a case where the general denial is pleaded elsewhere in the same answer. Porter et al. v. Wilson et al............348 Bill of Exceptions.-On the 8th of June, a cause was disposed of, and sixty days were given to file a bill of exceptions and on the 27th of November following, a bill of exceptions was signed by the judge. the bill a certificate was appended by the judge, stating that it was presented and left on his desk in his necessary absence from home; and that he did not return until after the time for signing the same had expired. Held, that as it did not appear that the bill was presented within the time limited, it could not be regarded as part of the record....... ....Ibid. Demurrer.—Exception.-Where a demurer to a complaint is overruled, but no exception to the ruling is en 8. Το 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 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. See CONTRACT, 1; FRAUDULENT CONVEYANCE, 6. See TURPIN v. CLARK, 378. 1. Discharge of Surety.-To discharge a surety on account of indulgence granted to the principal, the indul gence must be for a definite period of time, and founded upon a new consideration. There must be a new contract concluded between the creditor 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 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. 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 consideration. .Ibid. 3. 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. PROMISSORY NOTE. See HUSBAND AND WIFE, 22; PLEAD ING, 4. I. 2. 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 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- was no indorsement of the note by Held, that the filing of the note as the only cause of action was insufficient, R RAILROAD. ....521 3. 4. 5. 6. show the consolidation charged. The Killing Stock.—Pleading.-Toren- Death Caused by Negligence.—In- and refused: "If, at the time deceased) Held. that there was no error in this Held, also, that this evidence was suffi- ner Held, that regarding the action as in scribe and pay for stock in a railroad Same. The act, approved May REAL PROPERTY, ALIENATION See SHELLEY'S CASE. Restriction of.—A grantor of real estate 1. 2. REAL PROPERTY, RECOVERY Form of. In a criminal proceeding on appeal from a justice of the peace, RECORD. See SUPreme Court, 6; DEPOSITION; 1. Answers by Fury to Interrogatories. The answers to interrogatories made by a jury discharged without agreeing form no part of the record. ..........76 Leffel v. Leffel.......... 2. 5. Bill of Exceptions.--Where there is an appearance to an action, the summons and return are no part of the record unless made so by a bill of exceptions; but where there is no appearance to an action, the summons and return are properly a part of the record. The Jeff. Mad. & Ind' polis R. R. Co. v. Ross et al... 108 3. Affidavits.-Bill of Exceptions.— Affidavits filed during the progress of a cause can only be made a part of the record by a bill of exceptions. .284 Blizzard v. Phebus........ REDEMPTION. Party. To cut off the right of an I. 2. REFEREES. Cox v. ..27 Trial by Referees. - Before there can be a reference for trial, there must be an action pending; and there can be no action pending unless there are adversary parties. Gilmore v. B'd of Com'rs of Putnam Co..344 Action.-The filing of a claim against a county before the Board of Commissioners does not constitute an action, and there can, in such case, be no reference for trial... Ibid. 3. Arbitration.-Reference.-The appointment of a committee by the Board of County Commissioners, to examine the books and accounts of a county treasurer who presents a claim for services, and to report whether there is any money due the treasurer, does not amount to a submission to arbitrators or a reference to referees, and the report of a committee so appointed is not binding, either upon the county or the claimant.......Ibid. 4. Trial by Referees. A trial by referees is conducted in the same manner as a trial by the court. They Same-Report of Referees.-The REPLEVIN BAIL. S SALE. See FRAUD, 1; PARTNERSHIP. 1. Pleading.-Complaint.-Complaint by A. against B., alleging that A. sold and delivered to B. a certain quantity of wheat, on the 31st day of August, 1867, and B. agreed to pay A. within twelve cents per bushel of the Cincinnati market price, to be determined by the Cincinnati papers at any time which A. might select, within one year from the delivery of the wheat; that on the 28th day of April, 1868, A. notified B. that he would on that day take the price of said wheat as per Cincinnati papers of that date; that wheat was worth in Cincinnati on that day $2.70 per bushel; and that A. fixed the price on that day and demanded the pay therefor, but B. refused, &c. Held, that the complaint was good. ....175 Jones et al. v. Cook.. Contract.-B. received of A., in November, 1864, a certain number of sheep, on the following terms, set out in a written contract: B. to give annually one pound and a half of wool per head, sheared from said sheep and delivered by the 15th day of June, and pay, on or before the 1st day of July, 1868, four dollars and fifty cents per head for the sheep. If the annual amount of wool was not delivered, the principal sum, well as the wool, should be due at the end of the year, and the above amount of wool should be paid yearly until the contract was fulfilled. Complaint by A. against B. on the contract, alleging that B., in August, 2. as |