of the sale, as a part of the three
hundred dollars to which she was
entitled, under the statute, as against
heirs and creditors.
Held, that the widow was not estopped
from claiming her share, as against
creditors, of the real estate so sold.
Held, also, that the purchaser at such
sale, or his vendee, could not claim
to be a purchaser in good faith, be-
lieving he was acquiring an unincum-
bered title to the whole lot.
Held, also, that the widow's entire
interest, as against creditors, in all
her husband's real estate could not
be assigned to her in one body, upon
her selection, from the other unsold
tract, in which she as widow was
tenant in common with the children
and heirs at law of her husband. Ibid.

PARTNERSHIP.

See HUSBAND AND WIFE, 13; PARTIES,
5, 6, 7; PLEADING, 13.

Statute of Frauds.- Verbal Contract.
A partnership liability may become
an individual debt against one mem-
ber of the firm, by contract, not in
writing, between the partners, with
the consent of the creditor. Пор-
kins v. Carr.............
.......260

PARTY-WALL.

Contract. Construction of.-A. pur-
chased of B. a portion of a certain lot,
a part of the consideration, as shown
by a written agreement between said
parties, being, that A. promised to
build thereon, within a short time, a
first class three-story brick building;
and it was agreed that one of the
walls of the building should be a par-
ty-wall, each owning one moiety
thereof and giving an equal amount
of the ground; and that "whenever
B. or his heirs or assigns use said wall
by erecting a building on the lot ad-
joining on the said A.'s, B. or his heirs
or assigns putting the joists of their
building in said wall, then said A.
or his heirs or assigns is to receive
one-half of the actual cost of the
building of said wall from B. or his
heirs or assigns." A. complied with
his contract by erecting a three-
story brick building, leaving joist-
holes. B. erected a two-story brick

1.

2.

See EPPLY v. MOWRER, 239.

General Denial.-The answer of
general denial, under the code,
merely puts in issue such of the
averments of the complaint as the
plaintiff is bound to prove in order
to maintain his action; it does not
controvert redundant allegations.
The Adams Express Co. v. Darnell..20
Promissory Note.- Bastardy.—It
is not a good defense to a suit upon
a promissory note given in compro-
mise of a prosecution against the
maker for bastardy, "that it was
understood that if the child should
be born too soon, or the circumstan-
ces would not make out a case of
bastardy, the note was to be de-
livered up, and that the child was
born eight months from the time the
defendant first met the prosecuting
witness;" nor is it a good answer,
"that the defendant has since learned

4.

Decedents' Estates. Promissory
Note. Abatement.-Where the as-
signee of a promissory note, to
whom it has been indorsed in blank
by the payee, dies, intestate, and,
there being no administration upon
his estate, his widow, the note not
having been made her property,
assigns and indorses it in blank,
and, the intestate having been large-
ly indebted at the time of his death,
his debts remain unpaid; or where,
in addition to these facts, the maker
holds a claim against the estate of
the decedent, which in a suit by his
administrator would be a proper
set-off; in an action against the mak-
er by one to whom the assignee of
the widow has indorsed the note in
blank, upon the note as if indorsed
by the payee to the plaintiff, an an-
swer, verified by affidavit, setting|
forth these facts and praying that
the suit abate, is good on demurrer.
Stebbins v. Goldthwait et al......159
5. Same.-General Denial.-An an-
swer of general denial not sworn to
would not, under our code, put the
plaintiff upon proof of the genuine-
ness of the indorsement as shown
by the complaint, or admit evidence
of the facts set up in such answer in
abatement
........Ibid.

6.

Erroneous Judgment.- Judgment
taken through Mistake, &c.-Appli-
cation in the form of a complaint,
to correct an order directing the dis-
tribution of an estate, on the grounds
that the order was erroneous, and
that the plaintiff's attorney misun-
derstood the action of the court and,
being absent when the order was
read, took no exception.
Held, that the complaint, though it
appeared therefrom that the action
of the court was erroneous, was bad
on demurrer. Dunham v. Tappan
et al......
..173
7. Malicious Prosecution.-In a com-
plaint for malicious prosecution, the
plaintiff must aver that the prose-

cution claimed to have been mali-
cious has terminated in his acquittal
or discharge. Gorrell v. Snow..215

Complaint.- Promise.- Guardian
and Ward.-A complaint against a
guardian, to recover for maintaining
and providing for his ward, did not
contain any averment of a request
or promise made by the defendant,
or any allegation that he had failed
to provide, within the means in his
hands as guardian, for the reason-
able wants of his ward.
Held, that the complaint was bad on
demurrer for want of sufficient facts.
Gwaltney, Guard., v. Cannon.....227
9. Justification.-Officer.-An answer
justifying an arrest made by the
defendant as sheriff, by virtue of a
capias ad respondendum issued from
the office of the clerk of the court
of common pleas, need not state that
an affidavit was filed before the writ
issued; but if the return day be
past, the answer must show a re-
turn. Caldwell v. Kenworthy et al.238
10. Consideration.-Suit on a note
against the maker. Answer, that
the defendant received no consider-
ation for the note.

Held, that the answer was bad on de-

murrer. Anderson v. Meeker.....245
11. Justice of the Peace. The strict
rules of pleading are not applicable
to proceedings before a justice of the
peace. Stewart v. Ilutchins.......252
12. Same.-Warranty.-Demand of
Judgment.-Suit before a justice of
the peace on a note for $125. An-
swer, waiving the statutory denial
and averring, that the note was giv-
en in part payment for a mare sold
by plaintiff to defendant; that at the
time of the sale plaintiff represented
and warranted the mare as sound,
when, in truth, she was unsound to
such an extent that she died in con-
sequence thereof in a short time;
that plaintiff well knew she was
unsound, and, designing to cheat
and defraud defendant, warranted
her to be sound; that defendant, re-
lying on the representations and
warranty of plaintiff, purchased her
of plaintiff, and, as part payment,
gave the note in suit, and for no
other consideration whatever; that,
in addition to the note, defendant
paid plaintiff $40 in money for the
mare, and was at great expense in

keeping and caring for her, where-| by he was damaged $25; and he claimed judgment for $75, and all other proper relief.

Held, on motion by plaintiff for judg. ment notwithstanding a verdict for defendant, that the answer covered the note in suit and demanded judgment for $75 over and above the ....Ibid.

13.

same.........

Code. In a suit by surviving partners on a note payable to the firm, it was not shown in the body of the complaint what persons composed the late firm or how the right of action accrued to the plaintiff's as surviving partners, but these things were alleged in naming the parties plaintiffs.

Held, that such a method of stating facts, though not to be commended, is sufficient under the code. Aylesworth et al. v. Brown et al.........270 14. Answer.-Costs.-In a suit to enforce the entering of satisfaction of a mortgage, a defendant against whom no relief is sought, but who is made a defendant merely to answer as to his pretended interest in the subject matter of the suit, must file an affirmative answer if relief is sought by him. The general denial by such a party puts the plaintiff to such proof as will place such defendant in the wrong. He may save himself from costs by disclaiming any interest. Paine et al. v. The Lake Eries Louisville R. R. Co. 283 15. Statute.-Corporation.-Where a a statute of ancther State constitutes a part of the organization of a corporation suing in this State, it is not necessary to its introduction in evidence by the plaintiff that it should have been pleaded............................................... Ibid. 16. Parties.- Capacity to Suc.—-A·demurrer for the statutory cause of want of legal capacity to sue has refcrence to some legal disability of the plaintiff, such as infancy, idiocy, or coverture, and not to the fact that the complaint upon its face fails to show a right of action in the plaintiff. Debolt v. Carter et al......

17.

..355

Same-Plaintiffs.-Misjoiner of. Where two or more plaintiffs unite in bringing a joint action, and the facts stated do not show a joint cause of action in them, the proper mode of taking advantage of the

defect is by demurrer to the complaint, because it does not state facts sufficient to constitute a cause of action; and the defect can only be cured by striking out the name of the plaintiff improperly joined, or by so amending the complaint as to show a right of action in all the parties..... Ibid. 18. Another Action Pending.-Suit by the owner or certain town lots, denying the existence of a highway upon and along a portion thereof, as claimed by the defendant, and secking to quiet the plaintiff's possession of the lots, freed from the claim of such highway, praying a perpetual injunction against the defendant restraining him from disturbing the plaintiff's possession or asserting an easement over the lots as a public highway. After answer and reply, the defendant filed a cross complaint asserting the existence of an easement as a public highway over a part of said lots, charging the plaintiff with having unlawfully obstructed it, to the special injury of the defendant, and praying that the plaintiff be perpetually enjoined from repeating or continuing such obstruction.

Held, that the cross complaint was not bad on demurrer on the ground that another action was pending between the same parties for the same cause, to wit, the original complaint, the answer, and the reply............Ibid. 19. Parties.-Defect of.-Demurrer.Answer by way of set-off, alleging, "that before the commencement of this action the plaintiff was, and still is, indebted to the defendant on an account before that time assigned to him in writing by" a third person named, but not made a party; copies of the account and assignment being filed therewith.

Held, that the answer was bad on demurrer, expressed in the statutory form, for a defect of parties defendants. Allen v. Jerauld............372 20. Jurisdiction.-In pleading a record of a judgment, it is unnecessary to show by averments that the court had jurisdiction. Spaulding et al. v. Baldwin. ....376

21. Same.-Exhibits.-Where, in an action to recover possession of real estate, the defendant claims title

22.

through a sale and conveyance to
him under an order of court granted
upon the application of an adminis-
trator, to make assets to pay debts
of the decedent, the answer need
not aver that a real estate bond was
filed, but copies of the record and
the deed must be exhibited as parts
of the answer....
.Ibid.
Will.-Probate of.-A complaint
secking probate of an alleged will,
avering that the defendant pretended
that such a will as was described
and of which a copy was set out was
not duly executed, did not allege
that defendant had the custody of
the will, nor did the plaintiff offer
to produce it.

Ield, that the complaint was bad on
demurrer. Duckworth et al. v. Mat-

Held, that the demand of judgment
was sufficiently definite. Eaton et
al. v. Burns et al..........
390
24. Same.-General Prayer.—A com-
plaint upon a note executed by two
makers averred, that one of the
makers had died since the execution
of the note, and his administrator
was named and made a defendant
with the other maker, and judg-
ment was "claimed also of the as-
sets of said deceased in the hands
of said administrator, and plaintiff's
pray for general relief."

25.

Ield, that though the claim against
the assets might not be in form, yet
the general prayer included all prop-
er relief.....
....Ibid.
Promissory Note.- Vendor and
Purchaser.-Incumbrance.-Suit by
A., the assignee, against B., the
maker, upon a note, which by its
terms was to be paid when B., using
due diligence, should collect anoth-
cr certain note given by C. to D.,
the payee of the note in suit, and
assigned by D. to B., the complaint
alleging, that the defendant had col-
lected said note on C. Answer in
three paragraphs: 1. Admitting the
execution of the obligation sued on,
but denying that the defendant had

collected the C. note. 2. That the
husband of the payee of the note in
suit was indebted to the defendant
in a certain sum mentioned; that
the note on C. was given to the de-
fendant in payment of said indebt-
edness, and the obligation in suit
was given for the residue of said
note on C. in excess of said indebt-
edness; that at the maturity of C.'s
note he paid thereon to the defend-
ant a sum mentioned, being a certain
amount in excess of said indebted-
ness; that before the commencement
of this suit defendant tendered to
plaintiff said excess, being less than
the note in suit, which plaintiff re-
fused to accept; and that defendant
had ever since been ready, &c. 3.
That the C. note was given in part
consideration for a tract of land
sold and conveyed to C. by D. by
warranty deed; that D. derived her
title to the land from her husband,
without consideration; that a judg-
ment rendered in the United States
District Court against her said hus-
band became a lien on said land
while said husband was seized there-
of; that C., after maturity of his
note, tendered to the defendant, in
full payment thereof, a receipt for
the balance due on said judgment,
from the clerk of said court, and
also a tax receipt from the treasurer
of the proper county which was
filed as a part of the answer; that
the residue of the C. note was fully
paid to the defendant at maturity;
that upon receiving said receipts and
said residue, defendant tendered to
plaintiff the full amount of the obli-
gation in suit, less the amount of
said receipts, which plaintiff refused
to accept; and that defendant has
ever since been ready, &c.
Held, that the second paragraph, for
failing to deny that C. had paid the
whole sum due on his note before
the commencement of this action,
was bad on demurrer.

Held, also, that the third paragraph,
for not averring that the balance of
the judgment in the District Court
was paid by C., was bad on demur-
rer; and if regarded as an argumen-
tative denial of the allegation of
the complaint, that the defendant
had collected the C. note, it might
have been stricken out on motion,