certain lots fronting upon the high- way obstructed, such corporation is 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 petition, could properly have been made, only after the court had au- thorized the new party to come in........ .....Ibid.
7. Same-The new party, having been admitted, over the defendant's ob- jection, upon such petition, which was signed by his attorney and the attorney of the other plaintiff's, was, without formal amendment of the complaint, treated thenceforth throughout the case as a party plaintiff, without further objection. Held, that, under the circumstances, such petition might, on appeal to this court, be regarded as an amendment to the complaint...... ...Ibid.
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 ac- count before that time assigned to him in writing by" a third person named but not made a party; copies of the account and assignment be- ing filed therewith.
Held, that the answer was bad on de-
Same-Dismissal.-Disclaimer.——| 1. One of the original plaintiffs was allowed to dismiss the suit as to himself without filing a disclaimer. Ield, that it was his right to do so. Ibid. 2. Practice.-Capacity to Sue.-A de-
murrer for the statutory cause of want of legal capacity to suc has reference to some legal disability of the plaintiff, such as infancy, idiocy, or corerture, 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.355 10. Same.-Plaintiffs.-Misjoinder 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 com- plaint, 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 2. by so amending the complaint as to show a right of action in all the parties........ Ibid. Same. Obstruction of High- way-Injunction.-In an action to enjoin the obstruction of a public highway within the limits of an incorporated town and under the jurisdiction and control of such cor- poration, brought by a plaintiff who predicates his right to such relief on the ground that he is the owner of
murrer, expressed in the statutory form, for a defect of parties defend- ants. Allen v. Jerauld.............372
Widow.-Statute Construed.-Where in an action for partition there are several tracts of land in which a widow is entitled to an estate for life or in fee simple, and there are tenants in common with her in all or any part of such lands, the act of March 5, 1859 (2 G. & H. 361), does not give her the absolute right to have her interest in several tracts located in a body, selected by her, on one of them, but confers on the commissioners acting under the di- rection of the court the power, where she has made such selection, to set over to her the tract so selected, if they deem it just and proper to do So. The tenants in common in the several tracts, in lieu of her interest in which she makes such selection, must be the same, and each one's interest must bear the same relative proportion in each tract to the in- terests of the other tenants. Ian- lon v. Waterbury...... ...168 Same.-Estoppel.- Vendor and Pur- chaser. An administrator, under an order of court granted upon a proper petition in which it was stated that the decedent left a widow surviving him, sold a certain lot, being one of two tracts of land of which the de- cedent was seized in fee simple at his death, for the payment of the debts of the decedent. After the payment of the debts, the widow, with knowledge of all the facts, re- ceived the residue of the proceeds
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.
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
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
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
that he could prove he was not the father, but could not make such proof at the date of the compro-
cution claimed to have been mali- cious has terminated in his acquittal or discharge. Gorrell v. Snow..215
mise." Compton v. Davidson et 8. Complaint.- Promise.- Guardian
3. Written Instrument.-Where a de- fense is founded upon a written agreement, the instrument should be set out..... .Ibid.
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- cr 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.
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 Malicious Prosecution.-In a com- plaint for malicious prosecution, the plaintiff must aver that the prose-
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 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.....243 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.
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......
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
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."
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,
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