2. TORT: When it may be waived and suit maintained on implied contract.
Where a party whose goods have been wrongfully converted, elects to waive
the tort and sue in assumpsit for money had and received, he must show
that the goods have been disposed of by the wrong-doer, for value. Cham-
blee v. McKenzie.
3. What allegations do not require strict proof.
Allegations of quantity, quality and value, when not descriptive of the
subject of the action, need not be proved as alleged.
4. Variance between pleading and proof. Amendments, etc.
This court will not disturb a verdict on account of a variance between the
pleading and evidence, where the pleading might have been amended at
the trial in accordance with the proof.
5. Allegations of value in trover.
In an action of trover, the failure to allege the value of the property con-
verted, will be cured by a verdict for the plaintiff. Jefferson v. Hale,
adın'r.
The Code has made no change in the substantial allegations necessary to
constitute a cause of action, and resort may still be had to the common
law forms of pleading. In this case a complaint in the form of the com-
mon count of indebitatus assumpsit, for money had and received, etc., held
good. Ball et al. v. Fulton Co.
7. How defects in pleading should be token advantage of.
If the complaint omits to state a fact which is essential to the cause of ac-
tion, objection should be taken by demurrer. If it state the necessary
facts in a defective, uncertain manner, objection should be taken by mo-
tion to make it more definite.
The common law rules in regard to certainty in pleading, and construing
the same adversely to the pleader, are abrogated by the Code of Prac-
tice, which requires that pleadings shall be liberally construed. Bushey
et al. v. Reynolds et al.
Where a good defense is defectively pleaded, objection should be taken by
a motion to have the answer made more certain and definite, and not by
demurrer.
Id.
10. STATUTE OF LIMITATIONS:
In an action at law, the statute of limitations cannot be availed of by de-
murrer, but must be pleaded in bar, unless the complaint show that a
sufficient time has elapsed to bar the cause of action, and, also, the non-
existence of any ground of avoidance. Collins v. Mack.
11. Complaint in an action of slander.
Must show special damage, where the words alleged to have been spoken
are not actionable per se. Studdard v. Trucks.
The answer must contain a denial of each allegation the defendant intends
to controvert, or that he has any knowledge or information thereof, suffi-
cient to form a belief. Every material allegation not thus specifically
controverted will be taken as true. Trapnall, ex'r, etc. v. Hill et al. 345
13. DEMURRER.
Where a general demurrer is filed to an answer containing several para-
graphs, the demurrer should be overruled if any one paragraph presents
a good defense. The court must pass upon the demurrer as an entirety,
and cannot overrule it as to one paragraph and sustain it as to another.
Bruce et al. v. Benedict.
301
In an action of trespass, the complaint alleged that property of the plaintiff
which was exempt from execution, was unlawfully seized and sold by the
defendants, under an execution against the plaintiff, but failed to show
the date of the debt; that a schedule was filed under the statute, etc.;
upon demurrer to an answer filed to the complaint: Held, that the latter
was defective, and, by relation, the demurrer should have been sustained
as to it: but quera: If a demurrer had been interposed to the complaint,
should the allegations in regard to the levy, exemption, etc., have been
treated as surplusage, and the remaining allegations sustained as a good
cause of action.
Id.
15. IN CHANCERY: Filed out of time.
A demurrer to a complaint in equity, which is not filed in apt time, and
not submitted until the cause is ready for a final decree, will not be con-
sidered, if the pleading and evidence in the entire cause show a case for
equitable relief. Trapnall, ex'r. etc., v. Hill et al.
Under the code practice the effect of the denial of the allegations of a com-
plaint in equity, is merely to put them in issue. Gerson v. Pool.
17. Answer in chancery, burden of proof, etc.
Under an answer containing denials of the allegations of the complaint,
and affirmative averments, the burden of proof is on the plaintiff as to
the former, and on the defendant as to the new matter. Magness v. Ar-
nold.
103
To entitle a defendant in equity to relief by reason of new affirmative mat-
ter set up in the answer, it should be made a cross bill, and the parties to
be affected by the relief sought should be made defendants. Marr v.
Lewis.
19. Defective description, how aided,
In a proceeding to subject land descended to the heir, it should be described
in the complaint so as to enable the court to identify it in the decree; but
when the court is enabled, by the evidence, to lay hold of the particular
land, the finding will aid the defective description in the pleading, and
sustain the decree. Williams et al. v. Ewing & Fanning.
A cross complaint must relate to the matters embraced in the original com-
plaint. Where it is filed as a mode of defense to the original complaint,
it requires no equity to support it; but where it seeks affirmative relief, it
must be based on matters of equitable cognizance. Trapnall, ex'r, etc.,
v. Hill et al.
345
A cross complaint against a co-defendant, which seeks relief by way of
damages for a breach of covenant, and presents no grounds of equitable
cognizance, will not be entertained.
A power of sale contained in a mortgage, is not suspended by a resort to the
process of garnishment on the part of the creditor. Benjamin v. Lough-
borough's adm'r.
See APPEAL, 5, 6. EVIDENCE, 10. MANDAMUS, 1. PLEADING, 7, 9. SUBRO-
GATION, 1. TRANSFER Of Cause.
1. IN SUPREME COURT: Abatement by death of a party pending appeal, etc.
The death of a party to the appeal having been suggested subsequent to the
decree of this court, ordered that further proceedings in execution of the
decree, so far as affecting his interest, be suspended until the cause is re-
vived against his legal representatives. Brodie and King v. Watkins and
Wife.
2. IN CIRCUIT COURT: Attorneys ad litem, minor defendants, etc.
It is not proper to appoint an attorney ad litem for minor defendants. The
court should, in such cases, after service, appoint a guardian ad litem.
Hodges et al. v. Frazier.
The provisions of the statute in regard to the appointment of an attorney
for defendants who are constructively served, does not apply to minors,
the appointment of a guardian ad litem is sufficient. Williams et al. v.
Ewing & Fanning.
229
4. Profert of letters of administration.
The failure of an administrator, suing in his representative capacity, to file
his letters, or a copy thereof, should be reached by a rule on him to pro-
duce the letters, or a copy, and is no cause of demurrer. Surginer, adm'r,
v. Paddock et al.
528
5. Verification of pleading.
The reply to a counter claim must be verified. McDearmon v. McClure. 559
6. CRIMINAL. Polling the jury.
The object in polling the jury, is to ascertain if the verdict announced by
the foreman, is the verdict of all the jurors; and if there is any reason to
doubt that all the jurors concur, it is competent for the court, of its own
motion, to cause the jury to be polled. Harris v. The State.
7. Return of indictment into court.
The record, in an indictment for felony, must show that the grand jury re-
turned the indictment into court. Holcomb v. The State.
PREFERENCE AMONG CREDITORS.
See FRAUDULENT CONVEYANCE, 6.
See CRIMINAL LAW, 1. LEGAL PRESUMPTIONS. MISPRISION.
1. SURETIES: Contribution from estate of co-surety.
A, B and C were co-sureties; C died, and A and B were forced to pay the
debt after the administration on the estate of C had been settled, and
more than two years after the grant of letters: Held, that they could
subject assets descended to the heir to contribution. Williams et al. v.
Ewing & Fanning.
2. Statutory remedy for indemnity.
The provisions of section 5694 of Gantt's Digest, were not in conflict with
section 14, Article i, of the Constitution of 1868, restricting imprisonment
for debt to cases of fraud in contracting the debt. Proceedings there-
under are not to arrest a debtor for debt, but to obtain indemnity for the
surety, against the debt, or liability upon which he is bound, before it is
due. Ruddell v. Childress et al.
Under the provisions of section 5694 of Gantt's Digest, the sureties of an
executor who has converted the assets into money and choses in action
and refuses to pay the same over under an order of the Probate Court,
and is about to remove from the State, without leaving means to indem-
nify the sureties, may have him arrested and restrained from departing
from the State until he executes a bond, with good security, to indemnify
his sureties against liability.
4. Plea of failure of consideration by surety.
An answer by sureties on a promissory note, that they executed the same
upon the sole consideration that the payee was to advance their principal
a certain sum of money, which he failed to do, and retained the note as
collateral security on other transactions, presents a sufficient defense
upon demurrer. Bushey et al. v. Reynolds et al.
1. How far proceedings in conclusive.
The proceedings of the Probate Court, when acting within its jurisdiction,
are conclusive on all persons, until reversed or set aside by a direct pro-
ceeding for that purpose, however erroneous they may be. The sale of
real estate, under an order of the court without notice, and otherwise
irregular and grossly defective, is not a nullity, and will, upon its con-
firmation, divest the title of the heirs. Montgomery and Wife v. John-
son et al.
2. Certainty in the description of lands.
Where an order of the Probate Court, directing the sale of the land of a
decedent's estate, omits to describe the land, but refers to the petition, in
which the quantity, interest and title of the decedent, and the former
ownership of the land, with the fact that it was the only land owned by
him, were set out; held, that the order identified the land with sufficient
certainty.
Id.
3. SAME: When error will not vitiate.
In the report of an administrator's sale one parcel of the land was described
as the "N. frl. 4 of the N. W. 4." etc.: Held, that it was a clerical error,
the N. frl 1⁄2 was intended. An erroneous description of land, by num-
bers, will not control other descriptive particulars which indicate the land
with certainty. (For further application of the rule, see the opinion.) Id.
See BAIL. NOTICE, 1, 2. SHERIFF.
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