an abstract of title to the land owned by such surety, is unreasonable.
Hersey et al. v. Westover,
11. Introducing evidence after close of case.-Permitting a plaintiff
to introduce evidence in chief after he has closed his case, is a matter in
the discretion of the court. Munford v. Miller,
62
12. Objection must be specific.-Where objection is made to evidence
on the ground that it is secondary,. the ground of objection should be
specified, so that the opposite party may have an opportunity to remove it.
A mere general objection to the admission of such testimony is not suffi-
cient. Board of Education v. Taft,
13. Parties in interest.—A court of law will not inquire whether a
plaintiff sues for himself or as trustee for another. It is sufficient if he
has the legal interest in the subject-matter of the suit. Lee v. Penning-
ton et al.,
247
14. Mandamus.-In mandamus the petition stands in the place of the
alternative writ, and the answer takes the place of the return. The
pleadings should then take the form of pleadings at law. To make up
the issue as in chancery is an irregularity which would be ground for a
reversal. Com'rs of Highways v. Gibson,
231
15. Failure to file briefs.-Upon a failure of the defendant in error
to file briefs in time, the judgment will be reversed pro forma. Asher v.
Mitchell,
16. Dismissal on call.-On an appeal from a justice the trial in cir-
cuit court should proceed de noro, and it is error to dismiss such an
appeal on call, for want of prosecution, without proof by plaintiff of a
cause of action. Eichelberger v. Garvin,
129
17. Question of freehold.-Where the question of a freehold is in-
volved, this court has no jurisdiction on appeal or writ of error.
Dowell v. Lucas et al. 128; Randolph County v. Caldwell,
REMITTITUR.
18. In Appellate Court.—An assessment of damages in excess of the
ad damnum may be cured by remittitur in this court. The People v.
Steele et al.,
20
19. Must be to each plea.-In the case of several defendants who
plead separately, a replication "to the pleas of the defendant" is not suf
ficient. So, where one defendant had pleaded the general issue, no con-
sideration and set-off, such replication presented no issue to the plea of
set-off. Culver et al. v. Uthe,
20. Trial without.-A plaintiff going to trial without a replication,
after such objection is made, will be regarded as admitting that the plea
is true. Culver et al. v. Uthe,
21. Waiver of.-A defendant objecting to a trial before issue joined,
because of want of a replication, does not waive such objection by after-
wards proceeding to trial. Culver et al. v. Uthe,
PRACTICE. Continued.
STIPULATION.
22. To abide event of suit.-Where there were severa. suits of a
similar character pending, on appeal from a justice, and the parties stipu-
lated that two certain cases of the whole number should be tried and the
whole abide the event of trial in the specified cases, the stipulation be-
comes a part of the record, and one party has no right to dismiss its ap-
peal in the specified cases in violation of the stipulation. If the effect of
a dismissal of the appeal is to work an injury to the other cases covered
by the stipulation, the court should enforce the stipulation, notwithstand-
ing the fact that one party may have subsequently discovered that the
specified cases do not cover an element of controversy contained in the
other cases. McKinley v. Wil, Star Mining Co.,
386
23. Waiver.-A stipulation to abide the event of a certain suit is not
waived by a subsequent agreement that such suit shall be continued until
the determination of another cause pending on appeal to a higher court.
McKinley v. Wil. Star Mining Co.,
PREMATURE ACTION.-See ACTIONS.
PRESUMPTIONS.-See JUSTICE OF THE PEACE.
GENERALLY.
1. As to bill of exceptions.—If there is no bill of exceptions properly
signed in the record, and no suggestion of a diminution of the record, it
will be presumed that the original, bill of exceptions was not signed.
Pierson v. Watters,
400
2. As to crops raised by husband.-Although the land on which a crop
is raised is the separate property of the wife, yet where the husband and
wife live upon the land, the presumption is that the crops are the prop-
erty of the husband, as head of the family. Duncan v. Jackson,
119
3. Date of instrument.-The date of a written instrument will be pre-
sumed to be the true date of the transaction; but this presumption may
be rebutted unless there are circumstances which should estop the parties
from asserting a date different from that written. Merely antedating
notes and a mortgage for the purpose of securing interest from the time
of purchase, will not estop the parties from showing that the sale was a
conditional one, and was not in fact perfected so as to pass title until a
later date. Pitt's Sons Mfg. Co. v. Poor,
24
4. Fraud in mortgage.—There is no presumption of law that a mort-
gagor gave a mortgage on land he did not own.
Munford v. Miller, 62
5. In actions for malicious prosecution.-In this action malice is not
a legal presumption from want of probable cause. The defendant may not
be able to show probable cause, but he may be able to rebut any presump-
tion of malice. Hirschi v. Mettelman, 112; Comisky v. Breen, 369
6. Unauthorized transfer by agent.-Where a party purchases nego-
tiable paper, and without any indorsement to him, permits it to remain
in the hands of the vendor, invested with all the evidences of ownership,
and the latter afterwards indorses such paper to another, for value, and
without notice, the loss must fall upon him whose act or neglect has en-
abled the agent to commit the wrong. First Nat. Bank v. Beaird, 80
PRESUMPTIONS.
GENERALLY. Continued.
7. Of indorsement on note.-From the mere fact that the note in suit
is dated at St. Louis, the court cannot presume that the maker was a res-
ident of Missouri at the time of its maturity, and thus relieve the holder
from proof of diligence in proceeding against the maker; nor can it be
presumed, because administration on the estate of the indorser was had
in Illinois thirteen years after maturity of the note, that the indorse-
ment was made in Illinois. Estate of Edwards v. Shields,
PROBABLE CAUSE.-See MALICIOUS PROSECUTION.
PROMISSORY NOTE.
GENERALLY.
1. By corporation.-A promissory note written, "We, the Trustees of
the First Free Will Baptist Society," etc., and signed by the individual
names of the trustees, with the corporate name of the society, is the note
of the corporation and not the individual note of the trustees. Gillett et
al. v. New Market Savings Bank,
499
2. Failure of consideration.-The evidence as to a failure of consid-
eration was conflicting, but the plaintiff having, during the transaction,
written a letter in which he placed a particular construction upon the
contract, and the defendants remaining silent after receiving such letter,
they are held to have acquiesced in such construction, and their plea of
failure of consideration is not supported by the evidence. Bourland v.
Gibson et al.,
227
3. Mode of executing by corporation.-A proper mode of executing a
corporate contract is for the officers or agents who may act in the prem-
ises to subscribe the name of the corporation, followed by their own offi-
cial signatures. Where a note is executed by writing the full corporate
name of the society, and opposite thereto the individual names of the
trustees, connected therewith by a brace, it is an official execution of the
note. Gillett et al. v. New Market Sar. Bank,
499
4. Plea of failure of consideration.-In an action upon a note given
to a railroad company, "to be paid when the track of said railroad shall
be laid through White County, and cars shall run thereon," a plea that
the sole consideration was that such road should be built within three
years from the date of the note, and averring that such road was not
built within three years, etc., is bad on demurrer. C. & V. R. R. Co. v.
Delap et al.,
60
5. Presumption—Diligence against maker.—The court cannot pre-
sume, from the mere fact that the note in suit is dated at St. Louis, that
the maker was a resident of Missouri at the time of its maturity, and
thus relieve the holder from proof of diligence in proceeding against the
maker; nor can it be presumed, because administration on the estate of
the indorser was had in Illinois thirteen years after the maturity of the
note, that the indorsement was made in Illinois. Estate of Edwards v.
Shields,
70
6. Prima facie evidence.—Under a plea that the note in suit was in-
dorsed to plaintiff as collateral security only, the production of the note
PROMISSORY NOTE.
GENERALLY. Continued.
in evidence makes a prima facie case for the plaintiff, and casts the bur-
den upon the defendant to establish the truth of the plea. Chapin et al.
v. Thompson et al.,
7. After delivery.-In order to establish a legal and binding under-
taking of guaranty against a third party who indorses a note after it has
been executed and delivered to the payee, a new and sufficient considera-
tion for the indorsement must be shown. Blanchard v. McCuller, 431
INDORSEMENT.
8. Notice of defenses.-An indorsee of a promissory note who receives
it by equitable assignment without indorsement before maturity, and
without notice of defenses, but who, while he holds it and before maturity,
receives notice of defenses, will not be protected if he afterwards takes an
indorsement of the note to himself. He holds subject to all the defenses
against the assignor. Clark et al. v. Callison,
263
JOINT AND SEVERAL.
9. Action upon.-In an action upon a joint and several note, the
plaintiff must proceed against all jointly or each separately. Ritchie v.
Gibbs,
10. Waiver of set-off.—The giving of a note with cognovit, after the
causes of action alleged in the plea of set-off had accrued, was a waiver
of the right to interpose them as a set-off to the note. Borchsenius v.
Canutson,
11. Adding new surety-Where the payee of a note extended the
time of payment in consideration of a third person signing as surety, a
judgment against such person, jointly with other sureties who signed at
the time the note was executed, is erroneous. The act by which the
Ritchie v. Gibbs,
149
last surety became liable released the former sureties.
12. Discharge.-A plea by one, that himself and a co-defendant
signed the note as sureties only, and that the payee extended the time of
payment without their knowledge or consent, is not a personal plea, so
as to form an exception to the rule that where several are sued jointly
the judgment must be against all or none. Ritchie v. Gibbs,
13. Release.—Where, upon a judgment against the principal and
surety upon a promissory note, execution was levied upon property sup-
posed to belong to the principal, and there being doubt as to the owner-
ship of the property, the levy was released, it was held, that if in fact
the property belonged to the principal, the release of the levy operated
as a discharge of the surety. Brinton v. Gerry,
233
1. Common employment.-Persons engaged in loading cars with
freight, and a person employed by the same company as a switch-tender,
RAILROADS.
GENERALLY. Continued.
are not engaged in a common employment, so that no recovery can be
had against the common master for an injury to one caused by the negli-
gence of the other; but an engineer running a switch-engine, and a
switch-tender, are engaged in a common employment. C. R. I. & P. R.
R. Co. v. Henry,
322
2. Fires-Appliances to prevent escape of fire.-In an action for dam-
ages alleged to have been caused by the escape of sparks from an engine,
it is error to instruct the jury that the defendant must show, not only that
the engine was supplied with the best and most approved appliances to
prevent the escape of sparks, at the time of the fire in question, but also
that it was originally so constructed. If at the time of the fire it was
properly constructed and in good order, that is sufficient. C. & N. W.
Ry Co. v. Boller et al.,
3. Fires from locomotives.-In a suit to recover for the burning of a
stack of hay, alleged to have been burned by fire communicated from
one of defendant's engines, an instruction that if the jury believe the hay
was destroyed by fire communicated from one of defendant's engines,
and that defendant's right-of-way was not free from dry grass and other
combustible matter at the place where the fire started, etc., is erro-
neous, because it assumes that the fire started on defendant's right-
of-way, which was one of the questions in dispute. C. & A. R. R. Co.
v. Bloomfield,
211
4. Machinery furnished to employe.-Although an employer is
bound to use ordinary care in providing suitable and fit appliances for
the use of his servants, he is not bound to provide against the danger
arising from an unnecessary use of such appliances for a purpose to
which the same are not adapted; neither is he responsible for injuries
resulting from the risks ordinarily incident to the service. C. B. & Q.
R. R Co. v. Abend,
5. Injuries to persons.-In actions for injuries by being run over by
the cars, where it is alleged that the injury was the result of negligence
in failing to ring a bell or sound a whistle, and negligence in running
at a rate of speed greater than that allowed by ordinance, instructions
which wholly exclude from the jury the consideration of the question
whether the plaintiff received his injuries in consequence of such neglect,
C. B. & Q. R. R. Co. v. Dvorak,
RATIFICATION.-See TRESPASS.
1. In Appellate Court.-An assessment of damages beyond the
amount expressed in the ad damnum is cured by a remittitur entered
in the Appellate Court. The People v. Steele et al.,
1. Suit on. In a suit upon a replevin bond, for failure to return
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