7. A plaintiff who declares upon a simple contract must come into
Court prepared to show, not only that he has a good cause of action
prima facie, but also to rebut everything which implicates its valid-
ity ab initio, or which tends to prove its discharge, satisfaction, or
release. Therefore a general plea of fraud is good.
8. A demurrer to a plea admits the truth of the facts pleaded.
Sleeth v. Murphy, 321.
9. Where there is a variance in the declaration as to the amount due,
it is only available on special demurrer. Phillips v. Runnels, 391.
10. Pleas in bar should not look beyond the judgment upon which the
action of debt is brought.
Jackson v. Fletcher & Butler 230.
11. A person having a mere right of possession cannot interpose a
plea of title in an action of trespass against him.
Sage v. Keesecker, 338.
12. The plea of title contemplated by the statute is such only as may
be legitimately pleaded specially in contradistinction to the general
issue.
ib.
13. A defendant in an action of trespass who wishes to protect his right
of possession to the locus in quo, by a title less than freehold, must
plead the general issue.
ib.
14. Where a special agreement is made to rescind a former contract,
and repay a certain portion of the money advanced, that money can-
not be recovered under the common counts, but the declaration must
be special.
Lorton v. Agnew, 64
15. The rule in such cases is that the plaintiff cannot recover on the
common counts unless there is sufficient evidence to warrant the re-
covery, independent of the special agreement.
1. Where a plea is filed before default is actually taken, it is in time,
although filled after the time when the plaintiff might have taken a
judgment by default.
Davis v. Brady, 101.
2. The Court will refuse to hear proof of any oral agreement between
the contending counsellors, to treat the pleadings as amended when
they are not, and to show an issue different from that presented by
the pleadings on file.
Matthews, assignee of Woods, v. Tally & Tally, 159.
3. The defendant, under the general issue and notice of payment, in an
action of assumpsit, for goods, &c. is not bound to furnish the plaint-
iff with a bill of particulars. Humphreys v. Bridgman & Co. 167.
4. A statute which changes the practice operates upon pending causes,
and the proceedings thereafter, should be conducted in accordance
therewith.
Davidson v. Wheeler, 238.
5. Assenting to a trial upon the pleas amounts to a waiver of a demur-
Daugherty v. Bridgman & Partridge, 295.
6. The Supreme Court cannot consider an alleged irregularity in the
Court below, in omitting to dispose of a demurrer, junless the record
shows that the demurrer was called up for the action of the Court.
Coutch & Kinsman v. Barton, 354.
7. After a verdict, it is too late to raise the objection that pleas remain
unreplied to, unless the defendant shows that he endeavored to ob-
tain replications prior to the trial. The parties will be presumed to
have gone to trial upon issues formed by general replications travers-
ing the special pleas.
8. It is not erroneous to instruct the jury "that if they were satisfied
that there was an outstanding agreement for the payment of the
purchase money for a claim," the plaintiff could not recover under
the indebitatus count.
9. It is not necessary that a jury should have all the papers in a case,
the note on which the action is brought is all that is requisite.
Phillips v. Runnels, 391.
10. It is a general rule that where the newly discovered evidence is ex-
pected to be proved by a witness, who was called and examined, no
new trial will be granted, it being the duty of the counsel to ascer-
tain the extent of the witnesses' knowledge when he is on the stand.
Fanning v. McCraney, 398.
11. The defendant by pleading over waives his objections to the over-
ruling of the demurrer.
Moore v. Ross, 401.
See DEMAND, 1; NEW TRIAL, 4; JUDGMENT, 4; DISCONTINUANCE, 1;
EQUITY, 19, 23.
1. Where judgment is rendered by default on a note, it will be presumed
that the Court required proof of the signature, unless the record
shows to the contrary.
Parvin v. Hoopes, 294.
See DATE, 2; INDICTMENT, 3.
See BILLS OF EXCHANGE, &c.
1. An action against the county commissioners for services rendered as
a district prosecutor cannot be maintained.
Bradford v. Comissioners of Jackson County, 219.
See BILLS OF EXCHANGE, 19.
1. The traffic in public lands is not illegal. Stannard v. M'Carty, 124.
QUO WARRANTO.
See FERRIES; BANK.
1. A receipt for lumber to be sold on commission is not assignable, so
as to vest the legal interest in the assignee, and to authorize him to
bring suit in his own name.
Bissell & Emmons v. Fales, 491.
See COSTS, 1; BASTARDY, 1.
1. The Court cannot regulate its decisions on extrinsic matters.
Bell v. Pierson, 21.
2. The District Courts have a discretionary power to modify or reverse
any order during the term at which it was made.
Chapman v. Allen, 23.
3. Where a record shows itself incomplete, the defect will be regarded
the most strongly possible against the plaintiff in error.
Lorton v. Agnew, 64.
4. It is not necessary for the record to show proof of signature of the
defendant to the note, where judgment is taken by default at the first
term after suit is commenced. This will be presumed unless the
contrary appear.
Wilson v. King, 106.
5. The Supreme Court will not infer that a judgment by default in the
Court below was on a different day than that which appears in the
record.
M'Kell v. Neil and wife, 271.
6. An entry by the clerk, in the Court below, of facts, either proved or
admitted, is no legitimate testimony for the guidance of the Supreme
Court.
Kerr v. Stuart, 433.
7. A summons, or other writ, is no part of the record, unless made so
by a bill of exceptions.
Child & Co. v. Risk, 439.
8. The Supreme Court will not go out of the record.
Burkadink v. Baker, 442.
Affidavits made for the
9. A case must be tried upon the record alone.
purpose of changing or explaining the record will not be regarded;
nor an independent certificate of the clerk, stating facts not appar-
ent in the record.
Musgrave v. Brady et al. 456.
10. A record offered in evidence, which is not anthenticated with the
seal of the Court, may be proven by parol testimony to be a true
copy of the record. An exemplification of a record is of no higher
authority than a sworn copy.
Porter v. Cox, 494.
1. A mortgager whose mortgage has been foreclosed, has a right of re-
demption under the act of February 17, 1842, and may remain in
possession of the land sold under the mortgage fifteen months, the
term allowed to redeem the same.
Jennison v. Foltz, 490.
1. Where a rule of decision relative to the remedy is changed by stat-
ute, the new rule will be applicable to all cases subsequently tried,
although they may have been commenced prior to the enactment of
the statute.
Ballard v. Ridgly & Billon, 27.
2. Where a statute changes the practice, all subsequent proceedings in
cases then pending must be in accordance with such statute.
Inghram v. Dooley et al. 28.
3. A statute which authorizes proof of the failure of consideration on a
note arising from a breach of warranty or otherwise, passed after the
execution of the note, would operate so as to admit the evidence, as
it would only relate to the remedy. But such statute could not
operate upon a note previously given, so as to cut off the equities of
the maker, inasmuch as that would effect his rights.
4. A statute which changes the practice operates upon pending cases,
&c.
Davidson v. Wheeler, 238.
5. Statutes of limitations apply to the remedy. Sleeth v. Murphy, 321.
6. Where a rule of practice is changed by statute, without any saving
clause, the new law is applicable to all cases pending.
See BILLS OF EXCHANGE, 40; LIMITATIONS, 1, 3, 5, 6.
See Costs, 5; JURISDICTION, 4.
1. Where there is a plea to the jurisdiction of a justice sustained, the
judgment should not be in chief, but respondeat ouster.
3. The writ of right does not lie to recover the possession of a claim
upon the public lands.
Doolittle v. Harrington, 226.
See CONTRACT, 2; JUDGMENT, 3.
1. A riot cannot be justified to remove a trespasser, even if the rioters
have a just right to the possession of the land trespassed upon.
Scott et al. v. United States, 142.
2. To constitute a riot, two or more persons should be actuaily engaged
in some physical act of violence.
1. The act making it indictable to cut timber off the school land is not
contrary to the organic law.
Chalfont v. United States, 214.
2. The legislature has power to punish all injuries to real estate, as
misdemeanors, even though the lands belong to the United States.
Same point, Hodgen v. United States, 218.
See BILLS OF EXCHANGE, &c. 12; BOND, 2.
1. A service on a defendant on a petition under the mechanics' lien
law, by posting a copy of the summons on the property to which the
lien attached, is not a good service, unless the defendant cannot be
found to receive personal service. And the sheriff should first en-
dorse "Not found."
Colcord & Sprague v. Funk, 178.
2. The mere certificate of a person not a sworn officer is not a sufficient
return to a summons; and if it was a service by copy, the return
should state that it was left at the defendant's residence.
Romaine v. Commissioners Muscatine County, 357.
3. A special deputy sheriff is a legal and proper officer to serve pro-
cess, and an attorney for plaintiff may be that deputy.
Wilford v. Miller, 405.
4. The return of the sheriff "Served by reading and delivering an
attested copy," does not show on whom it was served, and is defec-
tive.
Longacre v. Simpson, 495.
See DATE, 1; APPEARANCE, 2; DEFAULT, 2; SHERIFF, 1, 2.
See CONSIDERATION, 9; JURISDICTION, 7.
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