« ΠροηγούμενηΣυνέχεια »
ON FORECLOSURE BY SCIRE FACIAS.
8. Where the note has been assigned, the mortgage may still be foreclosed by scire facias, but it must be in the name of the payee. Camp et
ux. v. Small, 37. SURVIVING PARTNERS.
9. Must sue alone. The administrator of a deceased partner should not join with the surviving partner in a suit to recover a debt due to the firm. At the common law, the surviving partner, alone, could sue. Belton,
Admz., v. Fisher, 33. MISJOINDER OF PARTIES PLAINTIFF.
10. Time to object thereto. See PRACTICE, 12.
DISSOLUTION -IN CHANCERY.
1. For default of one of the partners. Where the articles of copartner. ship between several persons, provide that one of the partners shall furnish a supply of the commodity in which the firm is to trade, and the others are to make the sales and pay over, at certain stipúlated periods, out of the proceeds of the sales, to the partner furnishing such commodity, the amount of the cost thereof, a failure, on the part of those members of the firm whose duty it was to do so, to pay over the proceeds of the sales as required by the contract, will authorize the partner injured by such fail. ure to maintain a bill in chancery for a dissolution of the partnership. Maher v. Bull, Admz. 97.
2. Whether mutual failure to comply with covenants will be considered. The partners thus being in default in not paying over the proceeds of sales, as agreed upon, would not be entitled to damages in such proceeding, for a failure on the part of the partner who had agreed to supply the article, to furnish what was necessary for the business. Ibid. 97.
3. Of fraudulent conduct on the part of one partner. And the partners who failed to pay over the money as stipulated, would be cut off from any claim for damages by reason of the other partner failing to supply what was necessary of the commodity to be furnished for the business, if they made a colorable sale of the stock on hand, inconsistent with the legitimate purposes of the partnership. Ibid. 97.
4. Statement of account between the partners — upon what basis. In stating the account between the partners in such a case, where it appeared that the partners who had control of the sales, had made a sale of a part of the stock of the firm, in fraud of the rights of the other partner, such sale should be considered as a sale for cash, and charged against the partners making it, accordingly. Ibid. 98.
5. If the firm should become liable for, and pay damages by reason of the failure of the partners controlling the sales to fulfill their contracts of sales, no portion of such damages should be charged against the other partner in stating the account between them, as the partners whose special
PARTNERSHIP. DISSOLUTION - IN CHANCERY. Continued.
duty it was to see that such contracts were complied with should not take
advantage of their own wrong. Maher v. Bull, Admx. 98.
6. Where there are debts due the firm, and uncollected, at the time of
stating the account between the partners, such debts should not be con-
sidered in making up the statement, unless they are of such character,
that, under the contract, they are specially chargeable to one of the part-
ners. Ibid. 98.
RECEIVER TO COLLECT DEBTS.
7. When appointed. See RECEIVER, 1.
GIVING FIRM NOTE FOR INDIVIDUAL DEBT.
8. When one partner unable to bind the firm. Without the consent of
his copartners, one partner cannot bind the firm of which he is a member
by giving the firm note in satisfaction of his personal indebtedness.
Wittram v. Van Wormer, 525.
9. So, where two parties formed a partnership, one putting in as stock
his saw-mill and a quantity of saw-logs, and the other an equivalent in
money, it was held, that the first party could not bind the firm by giving
the firm note for a balance due upon the saw-logs, although the firm received
the benefit of the logs. Ibid. 525.
SALE TO THE FIRM.
And delivery to one of the partners. See SALES, 13.
Must sue alone. See PARTIES, 9.'
OF PARTNERS AS WITNESSES. See WITNESSES, 2.
SALES FOR PAYMENT ON DELIVERY.
Effect of refusal to pay — as to delivery of a balance of the property sold.
See SALES, 8.
FOR NON-PAYMENT OF TAXES.
Of the power to impose a penalty therefor. See TAXES, 18, 19.
How A CITIZEN MAY BE DEPRIVED THEREOF.
1. Power of the President of the United States in that regard, in time of
peace or war.
. A citizen has a right to his personal liberty, except when
restrained of it upon a charge of crime, and for the purpose of judicial
investigation, or under the command of the law pronounced through a
judicial tribunal. Johnson v. Jones et al. 142.
2. The President of the United States has no rightful power, in time of
peace, to cause a marshal to arrest a citizen of one State, without process,
and without any charge of crime legally preferred, and convey him to
another State, and there imprison him, without judicial writ or warrant,
in a military fortress. Ibid. 142.
HOW A CITIZEN MAY BE DEPRIVED THEREOF. Continued.
3. Belligerents — subject to the law of war. In time of war, any soldier
has the right to arrest a belligerent engaged in acts of hostility toward
the government, and lodge him in the nearest military prison, and to use
such force as may be necessary for that purpose, even unto death. This is
the law of war. Johnson v. Jones et al. 143.
4. But the status of any person, as to the question of belligerency, de-
pends upon his citizenship or nationality. A belligerent is a subject of
the hostile power, and his character, in that regard, depends upon that
of the community to which he belongs. Ibid. 143.
5. So in the late war of the rebellion, the people of the rebel States
were recognized as belligerents, but the citizens of the loyal States, resi.
dent and remaining therein, and not engaged in the war, were not
belligerents or subject to arrest as prisoners of war, notwithstanding they
may have been domestic plotters against the government, in full sympathy
with the rebels and rendering them their moral co-operation and aid.
6. Military and martial law. Military law, as distinguished from mar.
tial law, consists of the rules prescribed for the government and discipline
of troops, which apply only to persons in the military or naval service of
the government, whereas martial law, when once established, applies
alike to citizen and soldier. Ibid. 143.
7. But martial law is in truth and reality no law, but merely the will
of the military commander, to be exercised by him only on his responsi-
bility to his government or superior officer. Ibid. 143.
8. Martial law must be permitted to prevail on the actual theater of
military operations, in time of war, as an unavoidable necessity. So, if a
commanding officer finds within his lines a person, whether citizen or
alien, giving aid or information to the enemy, he can arrest and detain
him so long as may be necessary for the security or success of his army.
9. But, beyond the enforcement of martial law on the actual field of
military operations, and its establishment in districts which, though
remote from the seat of war, are yet so far in sympathy with the public
enemy as to obstruct the administration of the laws through the civil
tribunals, and render a resort to the military power a necessity, as the only
means of restraining disloyalty from overt acts, and preserving the au-
thority of the government, there seems to be no ground upon which it
can be properly exercised. A state of war does not, of itself, suspend, at
once and everywhere, the constitutional guaranties of the liberty of the
citizen. Ibid. 143.
10. And, though the government be engaged in war, in the suppression
of a rebellion in certain parts of the country, in those portions not engaged
in the rebellion, where the civil courts, in the midst of loyal communi.
ties, are in the undisturbed exercise of their ordinary jurisdiction, martial
HOW A CITIZEN MAY BE DEPRIVED THEREOF. Continued.
law cannot properly exist, and the federal executive has no power to cause
the arrest of citizens in such communities, for alleged disloyal practices
therein, under his authority as commander-in-chief, and as incident to a
state of war, and any person making such arrest by direction of the Presi.
dent, must respond in damages to the party so illegally deprived of his
liberty. Johnson v. Jones et al. 143.
OF THE DECLARATION.
1. Where the consideration of a contract is executed, and where it is exe-
cutory. Where a party promises to pay a sum of money in consideration
tbat the promisee releases all claims he holds against the promisor,
although it does not appear what claims were released, yet, if the con-
sideration of the promise to pay, in that regard, was treated by the parties
as executed by the mere execution of the contract, the instrument furnishes
a prima facie cause of action, in a suit for the money, so far as depends
on that portion of it. Armstrong, Admr., v. Bartram, 422.
2. But, where a part of the consideration of the promise to pay the
money was executory, being an agreement on the part of the promiseo
to deliver the possession of land to the promisor, the contract describing
no particular land, — in an action to recover the money, it is not enough,
in averring performance by the promisee, to allege that "the land men-
tioned in the contract was given up," but the facts in regard to the trans-
action should be set forth in the declaration with such particularity, that
it could be seen what land was in the contemplation of the parties, and
that the surrender of the possession was such as the parties intended in
the agreement. Ibid. 422.
3. Averments in respect to a condition precedent. Where an agreement
under seal contains a number of covenants to be performed by one party,
and the other party, in consideration of such covenants, agrees to perform
an act, the first are precedent covenants, and their performance must be
averred and proved to warrant a recovery on the latter and dependent
covenant. Hoy v. Hoy, 469.
PLEAS AMOUNTING TO GENERAL ISSUE.
4. Of striking them from the files. Where the general issue and special
pleas are filed, and the matter of the special pleas can be given in evi-
dence under the general issue, the special pleas are obnoxious to demurrer,
and may be stricken from the files. Manny v. Rixford, 129.
FILING AMENDED PLEA.
5. After demurrer sustained to a former plea. The practice is well
settled, that where a defendant, after his pleas have been adjudged bad on
demurrer for substance, takes leave to amend, and files as an amended
plea a new and different plea, he thereby waives his first pleas and cannot
assign for error the decision of the court sustaining the demurrer. Dean
v. Gecman, 286.
JOINDER IN DEMURRER.
6. Not necessury. It is no objection that a demurrer was taken up and
disposed of without a formal joinder, and judgment rendered thereon.
A joinder in demurrer is unnecessary. Mix et al. v. Chandler et al. 174.
PLEA OF TENDER.
On a sale of chattels of a specified quality — requisites of the plea. Sea
· SALES, 6.
ON FORECLOSURE BY SCIRE FACIAS.
Pleas of usury and non est factum, not proper. See MORTGAGES, 22.
PLEADING OVER, WAIVES DEMURRER. See PRACTICE, 7.
PLEADING AND EVIDENCE.
SALES FOR PAYMENT ON DELIVERY.
1. Acceptance by vendee of part, after the time, and rufusal to pay-
set-off. In an action by a purchaser of chattels against the vendor for
non-delivery within the stipulated time, a plea that a part was delivered
and accepted afterward, but that the purchaser refused to pay for the part
thus accepted, on its delivery, as required in the contract, is a good plea.
If the purchaser sought at the time of the delivery of such part to pay
for it by setting off the damages for non-delivery of the residue, it was
incumbent on him to have made a distinct offer so to do to the vendor.
Bradley et al. v. King et al. 339.
2. In order to defeat the effect of such a plea, the purchaser should
either traverse the averment of refusal to pay, and prove on the trial of
the issue that damages were due him equal to the value of the property
delivered, and that he offered the vendor to release the damages to that
amount, or he may reply these facts specially to the plea. Ibid. 339.
UPON JUDGMENT ON DEMURRER.
3. On overruling demurrer to declaration - evidence admissible on assess-
ment of damages. In an action of debt upon a supersedeas bond, the
declaration assigned as breaches of the condition, that the writ of error
had not been prosecuted with effect, but that the decree had been affirmed;
and that the property mentioned in it had deteriorated in value since its
rendition. The defendant filed a demurrer, which the court overruled,
and gave judgment for the amount of the penalty in the bond, and nominal
damages only, refusing to hear any evidence in support of the breaches
assigned of deterioration of the property. Held, that it was error for the
court, after having adjudged the declaration good on demurrer, to reject
evidence offered to show the deterioration of the property; that the over-
ruling of the demurrer was a recognition of the claim. Cook v. Marsh, 178.
EVIDENCE UNDER THE GENERAL ISSUE.
4. Under the plea of non-assumpsit the death of one of several plaintiffs
cannot be proved. Stoetzell et al. v. Fullerton, 108.
ALLEGATIONS AND PROOF.
5. Must correspond. In suing for a violation of an ordinance of the city
of Aurora, the summons must state the ordinance which is alleged to be