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vrror in this ruling. Aylesworth et certain lots fronting upon the high-

al. v. Brown et al......................270 way obstructed, such corporation is
6. Same.- Pleading.--- Amendment.- not a necessary party plaintiff.. Ibid.

An amendment of the complaint, so 12. Defect of:- Demurrer.- Answer
as to show the facts alleged in such by way of set-off, alleging, “that
petition, could properly have been before the commencement of this
made, only after the court had au- action the plaintiff was, and still is,
thorized the new party to

indebted to the defendant on an ac-
in..........

......Ibid. count before that time assigned to
7. Same-The new party, having been him in writing by" a third person

admitted, over the defendant's ob- named but not made a party; copies
jection, upon such petition, which of the account and assignment bc-
Avas signed by his attorncy and the ing filed therewith.
attorney of the other plaintiffs, was, Held, that the answer was bad on de-
without formal amendment of the murrer, expressed in the statutory
complaint, treated thenceforth form, for a defect of parties defend-
throughout the case a party ants. Allen v. Jerauld.............372

plaintiff, without further objection.
Deld, that, under the circumstances, PARTITION OF LANDS.

such petition might, on appeal to this
court, be regarded as an amendment See IICSBAND AND Wire, 2.

to the complaint....... ....Ibid.
3. Same.- Dismissal.-- Disclaimer.-- 1. Widow.-Statute Construed.-Where

One of the original plaintiffs was in an action for partition there are
allowed to dismiss the suit as to several tracts of land in which a

himself without filing a disclaimer. widow is entitled to an estate for
IIcld, that it was his right to do so. Ibid. life or in fee simple, and there are
2. Practice.- Capacity to Sue.--A de- tenants in common with her in all

murrer for the statutory cause of or any part of such lands, the act of
want of legal capacity to suc has March 5, 1853 (2 G. & 11. 361), does
reference to some legal disability of not give her the absolute right to
the plaintiff, such as infancy, idiocy, have bcr interest in several tracts
or corerture, and not to the fact located in a body, selected by her,
that the complaint upon its face fails on one of them, but confers on the
to show a right of action in the commissioners acting under the di-

plaintiff. Debolt v. Carter et al.355 rection of the court the power, where
10. Same.-Plaintiff8.- Misjoinder of. shic has made such selection, to set

Where two or more plaintiffs unitc over to her the tract so selected, if
in bringing a joint action, and the they decm it just and proper to do
facts stated do not show a joint so. The tenants in common in the
cause of action in them, the proper several tracts, in lieu of her interest
mode of taking advantage of the in which she makes such selection,
defect is by demurrer to the com- must be the same, and each one's
plaint, because it does not state facts interest must bear the same relative
sufficient to constitute a cause of proportion in cach tract to the in-
action; and the defect can only be terests of the other tenants. Ilan-
cured by striking out the name of lon v. Waterbury.......... ......163
the plaintiff improperly joined, or 2. Same.--- Estoppel.- Vendor and Pur-
by so amending the complaint as to chaser.— An administrator, under an
show a right of action in all the order of court granted upon a proper
parties.........

Ibid. petition in which it was stated that
11.

Same.- Obstruction of Iligh- ihe decedent left a widow surviving
way.-- Injunction.-In an action to him, sold a certain lot, being one of
cnjoin tho obstruction of a public two tracts of land of which the de-
highway within the limits of an cedent was seized in fee simple at
incorporated town and under the his death, for the payment of the
jurisdiction and control of such cor- debts of the decedent. After the
poration, brought by a plaintiff who payment of the debts, the widow,
prcdicates his right to such relief on with knowledge of all the facts, re-
the ground that he is the owner of ceived the residne of the proceeds

1

of the sale, as a part of the three building, capable of lasting mang
hundred dollars to which she was years, using the party-wall as one
entitled, under the statute,as against of the walls of his building, but did
heirs and crcditors.

not insert his joists therein.
Held, that the widow was not estopped Ileld, in a suit by A. against B. upon

from claiming her share, as against the written agreement, to recorer
creditors, of the real estate so sold. one half the cost of the party-wall,
lleld, also, that the purchaser at such that the use of the wall was the

sale, or his vendec, could not claim thing contracted for, and that put-
to be a purchaser in good faith, bc- ting the joists into it was only an
lieving he was acquiring an unincum- incident. Greenwald v. Kappes.216 V

bered title to the whole lot.
lield, also, that the widow's entire

PASSENGER.
interest, as against creditors, in all
her husband's real estate could not Injury to. See RAILROAD, 16, 17.
be assigned to lier in one body, upon
her selection, from the other unsold

PATENT RIGHT.
tract, in which she as widow was
tenant in common with the children

See CONSIDERATION, 5.
and heirs at law of her husband. Ibid.

PENALTY.
PARTNERSHIP.

See DAMAGES, 1, 2.
Sce HUSBAND AND WIFE, 13; PARTIES,
5, 6, 7; PLEADING, 13.

PHYSICIAN.

Statute of Irauds.- Verbal Contract.

See WITNESS, C.
A partnership liability may become
an individual debt against one mem-

PLEADING.
ber of the firm, by contract, not in
writing, between the partners, with See CONSIDERATION, 5; CONTRACT, 12;
the consent of the creditor. Iop- Duress, 1, 3; IIIGHWAY, 1; HICSBAND
kins v. Carr.........

.260 AND WIFE, 10; INJUNCTION, 2; Justi-

FICATION, 2; MISJOINDER; NEGLI-
PARTY-WALL.

GENCE, 1; PagTiES, 5, 6, 7; RAILROAD,

5; Trust, 6.
Contract.- Construction af.-A. pur- See EPPLY V. MOWRER, 239.

chased of B. a portion of a certain lot,
a part of the consideration, as shown (1. General Denial.—The answer of
by a written agreement between said general denial, under the code,
parties, being, that A. promised to merely puts in issue such of the
build thereon, within a short time, a averments of the complaint as the
first class three-story brick building; plaintiff is bound to prore in order
and it was agreed that one of the to maintain his action; it does not
walls of the building should be a par- controvert redundant allegations.
ty-wall, each owning one moiety The Adams Express Co. v. Darnell.20
thereof and giving an equal amount 2. Promissory Note.- Bastardy. It
of the ground; and that “whenever is not a good defense to a suit upon
B.or his heirs or assigns use said wall a promissory note given in compro-
by erecting a building on the lot ad- mise of a prosecution against the
joining on the said A.'s, B.or his beirs maker for bastardy, “that it tras
or assigns putting the joists of their understood that if the child should
building in said wall, then said A. be born too soon, or the circumstan-
or his heirs or assigns is to receive ces would not make out a case of
onc-half of the actual cost of the bastardy, the note was to be de-
building of said wall from B. or his livered up, and that the child was
heirs or assigns.” A. complied with born eight months from the time the
his contract by erecting a three- defendant first met the prosecuting
story brick building, leaving joist- witness;" nor is it a good answer,
holes. B. crected a two-story brick "that the defendant has since learned

that he could prove he was not the cution claimed to have been mali-
father, but could not make such cious has terminated in his acquittal
proof at the date of the compro- or discharge. Gorrell v. Snow..215
misc." Compton v. Davidson et 8. Complaint.- Promise.- Guardian
al....

62 and IVard.A complaint against &
3. Written Instrument.- Where a de- guardian, to recover for maintaining

fense is founded upon a written and providing for his ward, did not
agreement, the instrument should contain any averment of a request
be set out.......

... Ibid. or promise made by the defendant,
4. Decedents' Estates.- Promissory or any allegation that he had failed

Note- Abatement.- Where the as- to provide, within the means in his
signec of a promissory note, to hands as guardian, for the reason-
whom it has been indorsed in blank able wants of his ward.
by the payee, dies, intestate, and, Held, that the complaint was bad on
there being no administration upon demurrer for want of sufficient facts.
his estate, his widow, the note not Gwaltney, Guard., v. Cannon .....227
having been made her property, 9. Justification.-Officer.-An answer
assigns and indorses it in blank, justifying an arrest made by the
and, thc intestate having been large- defendant as sheriff, by virtue of a
ly indebted at the time of his death, capias ad respondendum issued from
his debts remain unpaid; or where, the office of the clerk of the court
in addition to these facts, the maker of common pleas, need not state that
holds a claim against the estate of an affidavit was filed before the writ
the dcccdent, which in a suit by his issued; - but if the return day be
administrator would be a proper past, the answer must show a re-
set-off; in an action against the mak- turn, Caldwell v. Kenworthy et al.238
cr by one to whom the assignee of 10. Consideration.-Suit on a note
the widow has indorsed the note in against the maker. Answer, that
blank, upon the note as if indorsed the defendant received no consider-
by the payee to the plaintiff, an an- ation for the note.
swer, verified by affidavit, setting Held, that the answer was bad on de-
forth these facts and praying that murrer. Anderson v. Meeler.....243
thc suit abate, is good on demurrer. 11. Justice of the Peace. The strict

Stebbins v. Goldthwait et al......159 rules of pleading are not applicable
5. Samc.-Gencral Denial.-An an- to proceedings before a justice of the

swer of general denial not sworn to peace. Stewart v. Ilutchins....... 252
would not, under our code, put the 12. Same.- Warranty.-Demand of
plaintiff upon proof of the genuine- Judgment.—Suit before a justice of
ness of the indorsement as shown the peace on a note for $125. An-
by the complaint, or admit evidence swer, waiving the statutory denial
of the facts set up in such answer in and averring, that the note was giv-
abatement

.... Ibid. en in part payment for a mare sold
6. Erroneous Judgment.— Judgment by plaintiff to defendant; that at the

taken through Mistake, &c.- Appli- time of the sale plaintiff represented
cation in the form of a complaint, and warranted the mare as sound,
to correct an order directing the dis- when, in truth, she was unsound to
tribution of an estate, on the grounds such an extent that she died in con-
that the order was erroneous, and sequence thereof in a short time;
that the plaintiff's attorney misun- that plaintiff well knew she was
derstood the action of the court and, unsound, and, designing to cheat
being absent when the order was and defraud defendant, warranted
rcad, took no exception.

her to be sound; that defendant, re-
Held, that the complaint, though it lying on the representations and

appeared therefrom that the action warranty of plaintiff, purchased her
of the court was crroncous, was bad of plaintiff, and, as part payment,
on demurrer.

Dunham v. Tappan gave the note in suit, and for no
et al......

..173

other consideration whatever; that,
7. Malicious Prosccution.-In a com- in addition to the note, defendant

plaint for malicious prosecution, the paid plaintiff $40 in money for the
plaintiff must aver that the prose- mare, and was at great expense in

same......

keeping and caring for her, where- defect is by demurrer to the comby he was damaged $25; and he plaint, because it does not state facts claimed dgment for $75, and all sufficient to constitute a cause of acother proper relief.

tion; and the defect can only be Held, on motion by plaintiff for judg. cured by striking out the name of

inent notwithstanding a verdict for the plaintiff improperly joined, or by defendant, that the answer covered so amending the complaint as to the note in suit and demanded judg- show a right of action in all the ment for $75 over and above the parties.......

....Ibid. ....... Ibid. 18. Another Action Pending.-Suit by 13. Code.--In a suit by surviving the owner or certain town lots, de

partners on a note payable to the nying the existence of a bighway firm, it was not shown in the body upon and along a portion thercof, az of the complaint what persons com- claimed by the defendant, and seekposed the late firm or how the right ing to quiet the plaintiff's possession of action accrued to the plaintiff's as of the lots, freed from the claim of surviving partners, but these things such highway, praying a perpetual were alleged in naming the parties injunction against the defendant plaintiff's.

restraining him from disturbing the Teld, that such a method of stating plaintiff's possession or asserting an

facts, though not to be commended, easement over the lots as a public is sufficient under the code. Ayles- highway. After answer and repls,

worth et al. v. Brown et al..........270 the defendant filed a cross com. 14. Answer.Costs.-In a suit to on- plaint asserting the existence of an

force the entering of satisfaction of casement as a public highway over 2 mortgage, a defendant against a part of said lots, charging the whom no relief is sought, but who plaintiff with having unlawfully is made a defendant merely to an- obstructed it, to the special injury swer as to his pretended interest in of the defendant, and praying that the subject matter of the suit, must the plaintiff be perpetually enjoined file an afirmative answer if relief is from repcating or continuing such sought by him. The general denial obstruction, by such a party puts the plaintiff to Ileld, that the cross complaint was not such proof as will place such defend- bad on demurrer on the ground that ent in the wrong. He may save another action was pending between himself from costs by disclaiming the same parties for the same cause, any interest.

Paine et al. v. The to wit, the original complaint, the Lake Erief Louisville R. R. Co. 283 answer, and the reply. ...Ibid. 15. Statute.-Corporation. Where a 19. Partics.--Defect of.- Demurret.

a statute of ancther State constitutes Answer by way of set-off, alleging, a part of the organization of a cor- that before the commencement of poration suing in this State, it is not this action the plaintiff was, and still necessary to its introduction in eri- is, indebted to the defendant on an dence by the plaintiff that it should account before that time assigned to

have been pleaded................. Ibid. him in writing by" a third person 10. Parties. --- Capacity to Suc.--A de- named, but not made a party; copies

purrer for the statutory cause of of the account and assignment bewant of legal capacity to suc has ref- ing filed therewith. crence to some legal disability of the Ileld, that the answer was bad on deplaintiff, such as infancy, idiocy, or murrer, expressed in the statutory coverture, and not to the fact that the form, for a defect of parties defendcomplaint upon its face fails to show ants. Allen v. Jerauld............379 a right of action in the plaintiff. 20. Jurisdiction.In pleading a rec

Debolt v. Carter et al......... .355 ord of a judgment, it is unnecessary 17. Same.Plaintiffs.- Misjoiner of. to show by avermeats that the court

Where two or more plaintiff's unite had jurisdiction. Spaulding et al.T. in bringing a joint action, and the Baldwin .....

..376 facts stated do not show a joint 21. Same.- Exhibits.- Where, in an cause of action in them, the proper action to recover possession of real mode of taking advantage of the cstate, the defendant claims title

J

through a sale and conveyance to collected the C. notc. 2. That the
him under an order of court granted husband of the payee of the note in
upon the application of an adminis- suit was indebted to the defendant
trator, to makc assets to pay debts in a certain sum mentioned; that
of the decedent, the answer need the note on C. was given to the de-
not arer that a real estate bond was fendant in payment of said indebt-
filed, but copies of the record and edness, and the obligation in suit
the deed must be exhibited as parts was given for the residue of said

of the answer.... ......... Ibid. note on C. in excess of said indebt-
22. Will.--Probate of.-A complaint cdness; that at the maturity of C.'s

secking probate of an alleged will, note he paid thereon to the defend-
avering that the defendant pretended ant a sum mentioned, being a certain
that such a will as was described amount in excess of said indebted-
and of which a copy was set out was ness; that before the commencement
not duly executed, did not allege of this suit defendant tendered to
that defendant had the custody of plaintiff said excess, being less than
the will, nor did the plaintiff offer the note in suit, which plaintiff re-
to produce it.

fused to accept; and that defendant
Held, that the complaint was bad on had cver since been ready, &c. 3.

demurrer. Duckworth et al. v. Mat- That the C. note was given in part
lock ct al......

380 consideration for a tract of land
23. Demand of Judgment.--A com- sold and conveyed to C. by D. by

plaint upon a note alleged the prom- warranty deed; that D. derived her
ise of the defendant by his promis- title to the land from her husband,
sory note to pay the plaintiff a cer- without consideration; that a judg-
tain sum mentioned, and demanded ment rendered in the United States
judgment “for said sum and inter- District Court against her said lius-
est.''

band became a lien on said land
Ileld, that the demand of judgment while said husband was seized there-

was sufficiently definite. Eaton et of; that C., after maturity of his
al. v. Burns et al......

.390 note, tendered to the defendant, in
24. Same.- General Prayer.-A com- full payment thereof, a receipt for

plaint upon a note executed by two the balance due on said judgment,
makers averred, that one of the from the clerk of said court, and
makers had died since the execution also a tax receipt from the treasurer
of the note, and his administrator of the proper county which was
was named and made a defendant filed as a part of the answer; that
with the other maker, and judg- the residue of the C. note was fully
ment was "claimed also of the as- paid to the defendant at maturity;
sets of said deceased in the hands that upon receiving said receipts and
of said administrator, and plaintiffs said residue, defendant tendered to
pray for general relief."

plaintiff the full amount of the obli-
Ileld, that though the claim against gation in suit, less the amount of

the assets might not be in form, yet said receipts, which plaintiff refused
the general prayer included all prop- to accept; and that defendant has
cr relief..........

.... Ibid. ever since been ready, &c.
25. Promissory Note.- Vendor and IIcld, that the second paragraph, for

Purchaser.-Incumbrance.-Suit by failing to deny that C. had paid the
A., the assignee, against B., the whole sum due on his note before
maker, upon a note, which by its the commencement of this action,
terms was to be paid when B., using was bad on demurrer.
due diligence, should collect anoth- Held, also, that the third paragraph,
cr certain note given by C. to D., for not averring that the balance of
the payee of the note in suit, and the judgment in the District Court
assigned by D. to B., the complaint was paid by C., was bad on demur-
alleging, that the defendant had col- rer; and if regarded as an argumen-
lected said note on C. Answer in tative denial of the allegation of
three paragraphs: 1. Admitting the the complaint, that the defendant
execution of the obligation sucd on, had collected the C. note, it might
þut denying that the defendant had have been stricken out on motion,

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