See BASTARDY, 2, 4, 5; CITIES AND TOWNS, 2; MORTGAGE, 2.4; RAILROAD, 1, 2, 3; SHERIFF'S SALE, 2, 6; SLANDER, 2, 3.
See PRINCIPAL AND AGENT, 8.
OPEN AND CLOSE.
See REAL ESTATE, ACTION TO QUIET TITLE, 6
See MORTGAGE, 7; PROMISSORY NOTE, 2, 14; STATUTE OF FRAUDS; SU- PREME COURT, 15; TOWNSHIP, 4, 6; WILL, 2, 7.
See ADVANCEMENT; REAL ESTATE, ACTION TO QUIET TITLE, 1 to 5; WILL, 21.
1. When Action for Maintained.—Both title and possession or the right of possession must be vested in the plaintiff, to enable him to maintain an action for the partition of real estate. Schori v. Stephens, 441
2. Lands Subject to Life-Estate.—An action for the partition of lands sub- ject to an existing life-estate can not be maintained by the remainder- man, during the existence of such life-estate.
3. Same. Statute Construed.-The words "held or possessed," used in sec- tion 626 of the practice act, should be read "held and possessed." Ib. PARTNERSHIP.
See DECEDENTS' ESTATES; JUDGMENT, 6.
When Established.-Liability of Dormant Partner.-Contract.—Evidence.— In a suit against G. for goods alleged to have been sold and delivered by the plaintiff to said G. and his partners, the following facts were estab- lished: B. and C., prior to 1875, had been engaged as partners, under the firm name of B. & C., ostensibly in carrying on a retail store in Balti- more. Upon a credit which they had established in this manner, they purchased goods during certain months of said year, from wholesale dealers in different cities, and among them the plaintiff, upon credit and ostensibly for their said retail business. These goods were shipped to Baltimore and deposited in warehouses, whence said B. & C. secretly, and under cover of a number of fictitious names, shipped them, in the original packages, to the defendant G., who used said fictitious names in receiving, reshipping and selling said goods.
Held, that, at the time the plaintiff sold the goods to the firm of B. & C., the defendant G. was a member of said firm, and therefore liable, ex contractu, as a member of said firm, to the plaintiff, for the goods by him sold to said firm, though he may not then have known that said G. was a member of it;-as a dormant partner, when discovered, is liable for the debts of the firm, the same as an ostensible one. Held, also, that, in such case, entries in the books of a railroad company, proved to be in the handwriting of the person whose duty it was to make such entries, showing the delivery to the consignees of certain goods transported, if relevant, are admissible in evidence, to show the delivery and receipt of the goods in question, as between the parties to Gilmore v. Merritt, 525
See PRACTICE, 10; VENDOR'S LIEN, 2.
Application of, by Creditor.-Instruction.—Replevin.—Livery-Stable Keeper's Lien. On the trial of an action to replevy a horse, it appeared from
the evidence that the agent of the plaintiff, who was the owner of the horse, had left it for feed and care with the defendant, who was a livery- stable keeper, contracting a debt therefor in a certain sum; that such agent had also contracted another debt to the defendant in a certain other sum; that such agent claimed that the latter debt was on his own personal credit, whilst the defendant claimed the same to have been con- tracted by the agent, on behalf of the plaintiff; and that, prior to the commencement of the action, such agent had sent by a third person, to the defendant, a sum of money equalling the exact amount of such feed bill, but, no direction having been given as to its application, the de- fendant had applied it first in the discharge of the latter debt, and the residue upon such feed bill.
Held, that it was error to instruct the jury, that, in the absence of an express direction as to the application of such payment, the defendant had the right to apply the same upon other indebtedness
Held, also, that the true rule in such case is, that such application should be made according to the intention of the payor, as the same may be gath- ered from all the circumstances of the case.
Adams Express Co. v. Black, 128
See BASTARDY, 1, 2; CONTRACT, 1, 5, 8; COUNTY COMMISSIONERS.
PETITION FOR REHEARING. See SUPREME COURT, 29.
See BASTARDY, 1, 2; CHATTEL MORTGAGE, 3; CONTRACT, 5, 13, 14; DE- CEDENTS' ESTATES, 3; DITCHES AND DRAINS, 1 to 3, 10; DURESS; EVI- DENCE, 5; EXEMPTION FROM EXECUTION; FRAUDULENT CONVEYANCE; INJUNCTION, 2 to 4; JUDGMENT, 4, 9; MECHANICS' LIENS, 2, 3, 4; MORTGAGE, 4, 8; NEGLIGENCE, 1; PRACTICE, 1, 4. 7, 11, 15, 20; PRIN- CIPAL AND AGENT. 3, 7, 8; PROMISSORY NOTE, 2 to 6, 12, 14; REAL ESTATE, ACTION TO QUIET TITLE, 1 to 3; REPLEVIN, 2; SPECIFIC PERFORMANCE; SUPREME COURT, 10, 12, 13; TOWNSHIP, 4; TURNPIKE; VENDOR'S LIEN, 1; WARRANTY, 2; WILL, 18, 19, 20.
1. Supreme Court.— Complaint Cured by Verdict.-Practice.-A complaint insufficient on demurrer may, where no exception to the overruling of a demurrer thereto is taken, be cured by the verdict.
Hostetler v. The State, ex rel., etc., 183 2. Same.-Demurrer.—A counter-claim is in the nature of a complaint by the defendant against the plaintiff, and must allege facts sufficient to entitle the defendant to recover against the plaintiff, or it will be subject to demurrer. Branham v. Johnson, 259 Practice.-Harmless Error.-The sustaining of a demurrer to a sufficient paragraph of a pleading is harmless, where the same matter is alleged in a remaining paragraph. T., W. & W. R. W. Co. v. Craft, 390 PRACTICE.
See BASTARDY, 3 to 5; BILL OF EXCEPTIONS; COUNTY TREASURER, 4; CRIMINAL LAW, 4, 7, 8, 11, 13, 14, 15, 19, 20, 21; DEMURRER TO EVI- DENCE; EXEMPTION FROM EXECUTION; JUDGMENT, 5; NEW TRIAL; PLEADING; PRINCIPAL AND AGENT, 3, 9; PROMISSORY NOTE, 3, 10, 14; RAILROAD, 1; REAL ESTATE, ACTION TO QUIET TITLE, 6; SUPREME COURT, 5, 6, 7, 13, 19, 23. 24. 26, 27, 29, 31; PRACTICE, 4 to 6, 10.
1. Pleading.-Demurrer.-Motion to Make Certain.—Where a good cause
of action is stated indefinitely in the complaint, the remedy is by motion to make certain, and not by demurrer. Sibbitt v. Stryker, 41 2. Trial.-Verdict after Expiration of Term.-Where a trial is commenced during a term of court, it may be continued beyond the term until it is completed. Bridgewater v. Bridgewater, 82 3. Refusal to Hear Argument.-Where all the points involved have been argued during the making up of the issues and the introduction of the evidence, it is not error in the court to hear further argument on the close of the case. Wallace v. Furber, 103
Waiver.-Abatement of Action.-Supreme Court.-Where, without re- quiring a rule to reply, or otherwise calling the attention of the court, to a plea in abatement of an action, issues are made up on the merits of the action and tried and adjudicated upon by the court, action upon such plea is thereby waived, and no question upon it can be made for the first time in the Supreme Court. Wallace v. Furber, 126
5. Special Finding.-Judgment.-A special finding by the court; not made at the request of either of the parties, nor signed by the judge, amounts only to a general finding; and judgment should follow the finding. Caress v. Foster, 145
6. Same.-Supreme Court. The sufficiency or correctness of a finding can not be questioned by an alleged error in rendering judgment. Ib. 7. Demurrer.-New Trial.-Error in a ruling upon a demurrer to a plead- ing is not cause for a new trial. Ib.
8. Superior Court.- Supreme Court.- Assignment of Error.-Where no error is assigned in the superior court, in general term, on appeal thereto from special term, no question is presented to the Supreme Court, on appeal from the judgment of the general term affirming that of the special term. I., P. & C. R. W. Co. v. Negley, 178 9. Cross-Examination.- Impeaching Party.- Evidence. It is proper on cross-examination of a witness who has testified to the good reputation of a party to the action, to ask such witness whether he had not heard neighbors of such party testify, in a previous action against such party, that his reputation was bad. Hutts v. Hutts, 240 10. Judgment on Demurrer, over Issue of Fact.-Payment.-Where issue of fact is formed by a reply of general denial pleaded to an answer of pay- ment filed to the whole of a complaint containing both sufficient and insufficient paragraphs, it is error to render final judgment against the plaintiff for want of a further reply, on sustaining a demurrer to insuf- ficient paragraphs of the reply. Seits v. Sinel, 253 11. Pleading.-Demurrer.-Where a demurrer has been sustained to a spe- cial answer, the reply thereto goes with it, and no question arises upon the subsequent sustaining of a demurrer to the reply.
12. Judgment Non Obstante.--Special Findings.-Where no motion is made for judgment on special findings of fact by a jury, which are in- consistent with their general verdict, judgment in accordance with the verdict can not be questioned in the Supreme Court.
T., W. & W. R. W. Co. v. Craft, 395 13. Exception.--Evidence.--Where no exception is taken to the admission of incompetent evidence, error can not be assigned in relation thereto. Brooks v. Allen, 401
14. Instruction to Jury.- Where an instruction given embraces the sub- stance of one refused, the refusal is harmless.
15. Superior Court.- Supreme Court.--Assignment of Error.-Pleading.- Where, in the Superior Court, on appeal to general term, no error is assigned upon the action of the court at special term, in overruling a
demurrer questioning the sufficiency of the complaint, an assignment of error in the Supreme Court on appeal, questioning the sufficiency of the complaint, merely raises the question as to its sufficiency after verdict. McLaughlin v. Child, 412
16 Judgment Non Obstante.-New Trial.-A motion for a judgment on the answers to interrogatories, notwithstanding the general verdict, does not preclude a motion for a new trial. I. & V. R. R. Co. v. McCaffrey, 552 17. Same.--Interrogatories to Jury.-Where the interrogatories and answers do not bring out the facts of the case with the certainty required to en- able the Supreme Court to judge correctly of its merits, that court will respect the judgment of the court below. Ib. 18. Same.--Repugnancy.--Where the repugnancy between answers to inter- rogatories and the general verdict is not such that it could not have been removed by evidence legitimately admissible under the issues in the cause, it is not available, even though all the facts necessary to jus- tify the rendition of a judgment on such general verdict do not appear in said answers.
Ib. 19. Query-Where two new trials of an action have been had, can any question upon the evidence be considered by the Supreme Court on ap- peal?
20. New Trial.- Refusing Continuance.- Amendment.- Supreme Court.- Error in allowing an amendment of the complaint during trial, and in overruling a motion for a continuance on that account, must, to be avail- able, on appeal to the Supreme Court, be made ground.of a motion for a new trial. Morgan v. Hyatt, 560
21. Same.- Waiver.—Where a continuance, asked for by a defendant on the ground of the absence of a witness, by whom it is claimed certain facts alleged in, a paragraph of answer can be proved, is refused, and an exception reserved, the subsequent withdrawal of such paragraph, and the trial of the cause upon a different issue, are a waiver of the excep- tion. Crawford v. Redway, 573
See BASTARDY, 2; BILL OF EXCEPTIONS, 3; CRIMINAL LAW, 22; RAIL- ROAD, 4; SHERIFF'S SALE, 4.
See CONTRACT, 11, 12, 14; COUNTY COMMISSIONERS; PROMISSORY NOTE, 8; RAILROAD, 1, 2, 3; TELEGRAPH COMPANY, 1.
1. Real Estate Broker.-Employment of, by One of Several Owners.-Where the separate owners of distinct parts of an entire tract of real estate jointly employ a broker to sell the whole tract, an action may be maintained by such broker against all jointly, on such contract; but if, upon the trial, such joint contract be not proved, the suit may fail upon the general issue. McGill v. Pressley, 193
2. Same.-Defence.-In such case, under the general issue, any one of the joint defendants may avail himself of the defence that he is the owner, in his own right, of a certain portion of the property sold, and has no interest in the other portion, that he had not employed such broker, and that the latter had not sold such portion.
3. Same.-Harmless Error.— Pleading.—If such defence be pleaded in a special paragraph of answer, it is a harmless error to sustain a demurrer thereto, if the general denial be pleaded. Ib. 4. Same.-Instructions.—Ratification.-See the instructions copied into the opinion at length.
5. Same.-Sale for Sum Concealed from Principal.— Demand.—A real estate broker, who, for a specified compensation, agrees with the owner of a
tract of land to negotiate a sale of the same for a particular price, is liable to his principal, without demand, for any excess received by him in making sale of such tract and concealed by him from his principal. Love v. Hoss, 255
6. Same.-Contract to Exchange.-Conveyance.-Negligence.-A written prop- osition was made by A. and accepted by B., to exchange, within a stip- ulated period, by warranty deed and free from incumbrance, one tract of real estate for another. A real estate broker who was negotiating the exchange on behalf of A., by direction of one who had employed him to act for A., prepared a warranty deed for A.'s tract, conveying the same to B.. subject to certain taxes, and had it executed by A., but on account of the clause relating to the taxes, it was refused by B., of which refusal, and the ground thereof, A. was kept in ignorance until the expiration of the time stipulated.
Held, in an action by the broker, against A., to recover for his services in such negotiation, that he had been guilty of gross negligence, and can not recover, and that such person employing him to act for A. had no authority to authorize the insertion of the clause relating to taxes. Fisher v. Dynes, 348
7. Broker.-Action for Damages for Failure to Record Mortgage.-Defence.- In an action by the vendor of a dairy, against a broker, who, on behalf of the plaintiff, had negotiated the sale, to recover damages resulting to the plaintiff by reason of the failure of the defendant to have recorded within the proper time a mortgage executed by the vendee to the vendor, and' delivered to the broker, securing an unpaid balance of the purchase- money, wherein the complaint alleged that the mortgaged property had passed into the hands of an innocent purchaser, that the debt remained due and unpaid, and that the vendee was insolvent, it is no defence to allege, that, while the mortgaged premises remained the unincumbered property of the vendee, the latter had offered to execute a new mortgage to the plaintiff, or to reconvey to him sufficient of the property to in- demnify him. Stewart v. Muse, 385
8. Same.-Novation.-It is no defence in such action, that the vendee, with the plaintiff's knowledge and consent, had sold the premises to one who had assumed to pay the debt; that the plaintiff had novated the debt, by releasing the defendant and accepting the promise of such third per- son; and that the plaintiff had delayed obtaining a judgment against such third person for the debt, until after the property had been sold to an innocent holder, and until such third person had become insolvent. Ib. 9. Same.-Evidence. -Mitigation of Damages.-If such matters of defence are admissible as evidence in mitigation of damages, they are admissi ble under the general denial. Ib.
See DURESS, 2; GUARDIAN AND WARD, 6; PROMISSORY NOTE, 6. 1. Decedents' Estates.-Promissory Note.-Judgment against Estate of De- ceased Principal.--In an action on a promissory note, against the ad- ministrator of the estate of the deceased principal and the surety, wherein a complaint was filed by the latter alleging his suretyship, judgment was rendered, that "all the assets of said estate be first ex- hausted before a levy be made upon the property of the said " surety. Held. that such judgment was erroneous. Johnson v. Meier, 98
Same. A motion in such case, by the plaintiff, that judgment be ren- dered, to be levied on the assets of said estate in the hands of the ad- ministrator and on the property of the sureties, should be overruled. Ib. Same.--Decree for Sale of Specified Property.--In no case can a judg- ment be rendered against the administrator of the estate of a decedent. to be levied upon the assets of such estate, except where it directs the sale of certain specified articles. Ib.
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