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OPTION.

TO PURCHASE REAL ESTATE.

Not a contract. See CONTRACTS, 1, 2.

PARTIES.

MECHANIC'S LIEN.

1. Where a petition to enforce a mechanic's lien for labor and mate-
rials in the erection of a building upon real estate of a married woman,
alleges that her husband has some interest in the premises, which is
admitted by demurrer, he will be a necessary party for the purpose of
cutting off his interest by the decree. Greenleaf et al. v. Beebe et al. 520.
ASSIGNEE IN BANKRUPTCY.

2. The assignee of a bankrupt, on bill filed to affect a title claimed
by him, is an indispensable party, and if not made one the decree affect-
ing the property will not bind him. Harris et al. v. Cornell et al. 54.

PARTITION.

SALE SUBJECT TO WIDOW'S DOWER.

1. On a petition for partition of real estate, where it appears that
the premises are not susceptible of partition, there is no error in order-
ing the estate to be sold subject to the widow's dower, which may after-
wards be assigned in accordance with the provisions of the statute.
Fight v. Holt, 84.

PARTY WALL.

CONTRIBUTION FOR COST.

1. Each party liable for his proportion of cost. A wall was built
by the owner of a lot over the line, so as to have one-half on his lot and
one-half on the adjoining lot, with the agreement that the owner of the
adjoining lot might use the wall without any charge or cost whenever
he chose to build on his lot. The wall was subsequently destroyed by
fire, and the lot conveyed to another, who had no knowledge of this
agreement. The two owners then agreed to build together, and did so,
using the foundation of the former wall, and building their party wall
thereon, without any express agreement as to who should pay for the
party wall: Held, that each one was liable for the cost of his propor-
tion of the wall, and the grantee of the builder of the former wall hav-
ing built the new wall, was entitled to contribution from the other for
his proportion of the cost thereof. Huck v. Flentye, 258.

PARTNERSHIP.

OF THE INTERESTS OF THE PARTNERS.

1. In capital stock. Each partner has a joint interest but not a sep-
arate interest in any particular property of the partnership, and each
has a moiety or the same species of interest in the stock in trade,
whether each contributes exactly in the same proportion or not; but
43-80TH ILL.

PARTNERSHIP. OF THE INTERESTS OF THE PARTNERS. Continued.

their several degrees of interest must be regulated according to the
stipulated proportions and the different conditions of the partnership.
Neither partner has any exclusive right to any part of the joint effects
for any sum due him until a balance of account be struck. Taft et al.
v. Schwamb, 289.

2. Articles construed as to ownership of property used. Where
articles of partnership provide that one partner is to put into the capi-
tal stock a building and machinery valued at $9615, and the other two
to put in $2500, making a total capital stock of $12,119, and to pay the
other interest on the excess put in by him, each partner will have a
joint ownership of the building and machinery; and a provision that
"losses in all business transactions during said partnership" shall be
borne, one-half by the first and one-fourth by each of the others, will
not change the rule. Ibid. 289.

3. Partners may, by contract, stipulate that the ownership of prop-
erty may remain in one, while the firm shall have only the use of the
same, as between themselves, or any other regulation in regard to own-
ership of the property used, not prohibited by law. Ibid. 289.

4. Where, by articles of partnership, it was recited that one had put
into the capital stock property on hand of the value of $9615, and the
other two were to put in $2500, making a total capital of $12,119, and
it was provided that the two last should pay the first interest on the
excess put in by him, and the losses in business and profits should be
divided one-half to the first and the other half among the other two,
and further provided that the partnership might be renewed when the
term expired, and in that event the partners should become equal
owners in the capital stock, which was done by indorsement on the
original articles: Held, that each became an equal owner, and the
property put in by the first having been destroyed by fire, the loss
should be borne equally by all. Ibid. 289.

PAYMENT.

NOTICE OF.

1. By one purchasing notes. Where a note secured by deed of trust
on land, when offered as collateral security for a loan, had stamped
upon it, "Cook County National Bank, Chicago-Paid June 16"-
which words were erased by a pen having been drawn through them,
and this it was insisted was notice of its payment, it was held, that
being erased, the reasonable inference would be, that these words had
been placed there by mistake, and the procuring of the written consent
of two other parties interested indorsed on the note, consenting that the
time of its payment might be extended for one year, was also held to be
inconsistent with the fact of its payment, and was a guaranty it was not
paid. International Bank, etc. v. Bowen et al. 541.

PLEADING.

OF THE DECLARATION.

1. On a life insurance policy. In a suit on a policy of life insurance,
procured by the insured for the benefit of another, it is not necessary
that the declaration should aver that the beneficiary had any interest in
the life of the insured, but a different rule prevails where one procures
an insurance on the life of another. In such a case, the plaintiff must
aver, in his declaration, that he had an insurable interest in the life in-
sured. Guardian Mutual Life Insurance Co. v. Hogan, 35.

2. Where a party made application, in the name of his father, for a
policy of insurance on the life of the father, for his (the son's) benefit,
and the agents of the company, being aware of all the facts, and that
the father knew nothing of the transaction, and paid nothing on the
policy, still caused the policy to be issued to the father as if procured
by him for the benefit of the son, it was held, that as a mere question of
pleading, the company could not be heard to make objection that the
transaction was different, in fact, from what it purported to be by the
policy, and that, in declaring on it, the plaintiff was not to aver in his
declaration that he had an insurable interest in his father's life.

35.

Ibid.

3. Where a policy of insurance contains a recital that it was issued
in consideration of the application of a previous policy which is made
part of the new policy, it is not necessary, in declaring on the policy
sued on, to refer to such application; a cause of action is shown by
declaring upon the policy sued on, alone, and if the representations in
the former application furnish any matter to defeat the right of action,
it should be set up in defense. Ibid. 35.

4. On a policy of insurance. A declaration which does not aver the
value of property destroyed, but which avers that the plaintiff was
interested in the property to the value of $5000, although it might be
bad on special demurrer, is good on general demurrer, or in arrest of
judgment. Knickerbocker Insurance Co. v. Tolman et al. 106.

5. When condition or exception in contract must be negatived in the
declaration. Where a right is conferred by a clause absolute and un-
conditional in its terms, but the right is limited in a subsequent clause
by a condition or exception, the pleader is not required to negative the
condition or exception, but it is for the defense to plead it. Ibid. 106.

6. But when the condition or exception is contained in or referred
to by the clause giving the right, then the plaintiff must set out and
negative the condition or exception. Ibid. 106.

7. On replevin bond. The material facts to be alleged in a declaration
on a replevin bond are, the termination of the replevin suit, and judg
ment for costs in the defendant's favor, and the order for the writ retorno
habendo. It is wholly unimportant what led to that result, or in what
phraseology it was declared. Stevison et al. v. Earnest, 513.

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8. In action against a city for torts of its servants. See CORPO-
RATIONS, 10.

9. Joinder of counts-in case and trespass. Under the statute abol-
ishing the distinction between actions of trespass and trespass on the
case, there is no reason why a count in trespass and one in trespass on
the case may not be joined in the same declaration. Barker v. Koozier,
205.

10. Defects cured by verdict. A declaration which avers that the de-
fendant unlawfully drove along the center of the traveled track of the
highway, and thereby forced the defendant upon a bank, whereby his
carriage was upset, without averring that the plaintiff and defendant
met in the highway and that defendant refused to turn to the right,
whilst it might be bad on demurrer, will be sufficient to sustain a judg.
ment where the general issue is filed and a trial had, and the evidence
shows that the parties did meet and that defendant refused to turn to
the right, and thereby the injury was occasioned. In such case the
defect in the declaration is cured by the verdict. Ibid. 205.

DEFECTS-HOW REACHED.

11. By demurrer. If a declaration is considered defective, the proper
practice is to demur to the same, instead of moving to exclude the evi-
dence in the case. Knickerbocker Ins. Co. v. Gould et al. 388.

PLEADING IN QUO WARRANTO.

12. Of matters to defeat an election. In a proceeding by quo war-
ranto against a city, requiring it to show by what authority it exercised
the franchises conferred by the act of 1872, where the city, by plea, set
up an election under that law, resulting in a vote in favor of incorpora-
tion under the act, a replication attempting to impeach and invalidate
the election, by charging frauds and irregularities in certain wards,
which alleges that the returns in such wards showed a majority for in-
corporation which exceeds the entire majority in favor of incorporation,
as found and declared by the common council, is defective in not stating
that the returns in such wards affected the actual result, or as to the
majority of legal votes cast. City of Chicago v. The People ex rel. etc.
496.

PLEADING AND EVIDENCE.

ALLEGATIONS AND PROOFS.

1. As to description of judgment in replevin in suit on replevin bond.
Where a declaration upon a replevin bond alleged that, the replevin
suit coming on for trial, it was considered and adjudged that the plain-
tiff take nothing by his suit, and that the court awarded a return of the
goods, etc., and gave judgment for the defendant thereon against the
plaintiff for one cent damages and costs of suit, and the record produced
showed simply a dismissal of the suit for failure to give security for

Continued.

PLEADING AND EVIDENCE. ALLEGATIONS AND PROOFS.

costs and judgment for costs and return of the property: Held, that the
variance was not material. Stevison et al. v. Earnest, 513.

2. Generally-in suits on record or instrument in writing. Where
an instrument in writing or a record is not the foundation of the action,
a variance is not material, unless the discrepancy is so great as to amount
to a strong probability that it can not be the instrument or record de-
clared on. Ibid. 513.

3. Distinction as to action ex contractu and torts. Contracts are en-
tire, and must be proved substantially as alleged, but torts are divisible,
and in them the plaintiff may prove a part of his charge and recover, if
there be enough proved to support the tort. Roth v. Eppy, 283.

4. Although the declaration in an action by a wife against one for
selling and giving liquor to her husband, may allege that the husband's
intoxication was caused in whole by the defendant, a recovery may be
had where the proof shows it was caused in part only by the defendant.
Ibid. 283.

EVIDENCE UNDER THE COMMON COUNTS.

5. A contract which has been fully performed on the one part, and
there is nothing remaining to be done but to pay the money according
to the stipulated price in the contract, is admissible in evidence under
the common counts. Combs v. Steele et al. 101.

PRACTICE.

AFFIDAVIT OF CLAIM BY PLAINTIFF.

1. If the defendant is a resident of the county where suit is brought,
the plaintiff may file an affidavit of merits with his declaration, and
have judgment by default, unless the defendant, his agent or attorney
shall file an affidavit of merits with his plea. Honore v. Home National
Bank, 489.

2. The statute does not require that the plaintiff shall file his own
affidavit with his declaration, in order to require the defendant to file
an affidavit of merits. The affidavit of any one cognizant of the facts,
will be sufficient. Wilder v. Arwedson, 435; Honore v. Home National
Bank, 489.

3. The affidavit filed with a declaration, to require an affidavit of
merits from the defendant, need not be entitled as of the term of court.
Honore v. Home National Bank, 489.

4. It is not necessary that the plaintiff's affidavit should appear to
have been filed after the suit is commenced. It is sufficient if filed with
the declaration, either before or after the commencement of the suit.
Ibid. 489.

5. Authority of officer taking must appear. It must appear that the
officer administering the oath to an affidavit of claim filed with a decla-

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