Page images
PDF
EPUB

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
is permitted to prosecute or defend
as a poor person, the action of the
court cannot be questioned by show-
ing that the person is of sufficient
physical ability to labor for and ac-
quire the necessary means to defend
or prosecute; if he has not the means,
it is immaterial whether the want of
means has arisen from one cause or
another.....
....Ibid.

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-
less......
....... Ibid.
3. Pleading-Cause of Action.-A.
sued B. before a justice of the peace
upon a promissory note made by B.,
payable to the order of C. There

was no indorsement of the note by
C. to A.

Held, that the filing of the note as the

only cause of action was insufficient,
and that the case was not one of a
mere defect of parties. Hull v. Con-
over's Ex'rs.....
..372
4. Evidence of Settlement.-Where a
claim was filed against an estate for
work and labor done, for money had
and received by, and services and
attendance upon, the deceased dur-
ing his sickness; and the defense.
was that the work and labor and
money and services were performed
and paid under a valid contract; and
under the plea of set-off promissory
notes were offered in evidence, given
to the decedent by the person present-
ing the claim at various times during
the period for which he demanded
compensation for labor and attend-
ance, it was the duty of the court to
instruct the jury that these notes
were prima facie evidence of a settle-
ment between the claimant and the
deceased. Bishop, Administrator, v
Welch

R

RAILROAD.

....521

[blocks in formation]

3.

4.

5.

6.

show the consolidation charged. The
P. C. & St. L. R. W. Co. v. Kain.291
Lease.- Liability for Torts.-A
railroad company, running and oper-
ating a railroad under a lease from
another railroad company, cannot be
held liable, either at common law or
by virtue of the statute, for torts com-
mitted by the lessor prior to the execu-
tion of the lease......... ..... Ibid.

Killing Stock.—Pleading.-Toren-
der a railroad company liable under
the statute for killing stock, it must
be alleged in the complaint, and
proved, that the road was not secure-
ly fenced. It is not sufficient to say
that the road "was not fenced ac-
cording to law." The I. C. & L.
R. R. Co. v. Robinson............ 380
Same.-Pleading.—To be good at
common law, a complaint against a
railroad company for negligently kill-
ing stock must allege that the injury
did not result from the negligence of
the plaintiff...
...Ibid.

Death Caused by Negligence.—In-
struction.-Evidence.-In an action
against a railroad company for negli-
gently causing the death of A., it ap-
appeared from the evidence, that Â.
and others in the employment of a
union railway company were at work
at a certain point on the railroad
track of said union company over
which trains could pass at that point;
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
communicating with the engineer
from the rear of the train; nor was
there any brake in working order on
the car farthest from the locomotive,
although a brakeman was on the rear
end of the car, the locomotive being
at the other end of the train; nor
was any person in advance of the train
to warn others of its approach. The
locomotive was in charge of the
fireman, the engineer being absent to
procure a drink. The other persons
employed with B. at work on the
track stepped off, and some one
called to him, "look out," when B.,
instead of stepping back, stepped
forward, and was struck and killed.
The fireman and one brakeman were
the only persons in charge of the
train. This instruction was asked

and refused: "If, at the time deceased)
was killed, it was his duty to be en-
gaged upon the track at that place,
and he might have seen the approach | 10.
of the train by exercise of reason-
able care, as by looking up, then the
failure to do so, if he did so fail, was
negligence on his part; and if such
negligence contributed to his injury,
then the jury should find for the de-
fendant."

Held. that there was no error in this
ruling.

Held, also, that this evidence was suffi-
cient to sustain a finding against the
railway company. The I. B. & W.
R. IV. Co. v. Carr, Adm'r.. .510
7. Action against two Companies for
Stock Killed.-Where a complaint
against two railroad corporations
charged that "the defendants, by
their locomotive and cars then by
them run upon their road, at said
county and State, run over and upon
one colt belonging to the plaintiff,”
&c.;

ner

Held, that regarding the action as in
the nature of a tort, it was sufficient
to charge that the act was done by
the defendants, without showing
what relation they sustained to each
other, and a recovery might be had
against the one shown by the evi-
dence to be liable; or that there
might under the statute be a joint or
several liability of the defendants as
lessees, assignees, receivers, or as
running or controlling a railroad.
The I. C. & L. R. R. Co. v. War-
.515
8. Track Along Street.-Where a rail-
road company has not the exclusive
right of way, as where a railroad
runs along, instead of across, a street
or alley, and where others as well as
the company have the right to pass
in or along such street or alley, the
company under such circumstances
cannot legally construct fences or
cattle-guards on or along its track,
and is only liable for killing stock at
such point on its track when guilty
of negligence........
..Ibid.
9. Constitutional Law.-Subscriptions
to Railroads.-Townships.-Taxes.
The State may make internal im-
provements, directly, or by a corpo-
ration, and for that purpose, levy
and collect taxes, or empower coun-
ties and townships to do so and sub-

scribe and pay for stock in a railroad
company. John v. The C. R. & F.
W. R. Co. et al.
539

Same. The act, approved May
12th, 1869, "to authorize aid to the
construction of railroads, by counties
and townships taking stock in," &c.,
contemplates a payment for stock at
the time of subscription, and not the
creation of a debt therefor, and is
constitutional.................... .......... Ibid.

REAL PROPERTY, ALIENATION
OF.

See SHELLEY'S CASE.

Restriction of.—A grantor of real estate
may limit or restrict the power of
alienation for a period of time, but
an absolute prohibition is void. An-
drews v. Spurlin et al...............262

1.

2.

REAL PROPERTY, RECOVERY
OF.

[ocr errors][merged small][merged small][merged small]

Form of. In a criminal proceeding on

appeal from a justice of the peace,
a bond conditioned that the defend-
ant "shall prosecute his appeal to
final judgment, and pay such judg
ment as may be rendered against him
on such appeal," is a good recogni-
zance, although imprisonment may
be a part of the punishment pro-
vided. Ott v. The State.....365

RECORD.

See SUPreme Court, 6; DEPOSITION;
PRACTICE, 7.

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
owner of an equity of redemption
to redeem, he must be made a
party to the suit to foreclose. (PET-
TIT, C. J., dissents, holding that the
statute of June 4th, 1861, takes
away all rights to redeem except
as provided in that statute.)
Vickers et al

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
may be required to state the facts
and conclusions of law separately;
otherwise they may render a general
Ibid.
finding

Same-Report of Referees.-The
report of referees stands as a general
finding by a court, or as the special
verdict of a jury, and the finding in
the one case, and the verdict in the
other, must be followed by a judg-
ment thereon, or they will amount to
...Ibid.
nothing.....

REPLEVIN BAIL.
See FRAUD, 3, 4.

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

« PreviousContinue »