(§ 977) prohibits a recovery for services rendered by a physician who
has not obtained a license from one of the medical boards of this State,
a diploma would confer no authority to practice medicine before the
passage of the act of 1854, and would therefore not be competent evi-
dence to sustain an action for such services.-Richardson v. Dorman's
Executrix......
2. Entries on physician's books evidence of what facts.-The original entries in
the books of a physician, which are declared by the Code (§ 2298) to be
"evidence for him, in actions for the recovery of his medical services,
that the service was rendered", are evidence of the items of his account
for medicines administered and furnished to his patients in the course
of his practice; but the value of the medicines, as well as of the active
services rendered, must be otherwise proved.....
PLEADING AND PRACTICE AT LAW.
1. Power of court over proceedings in fieri.—Where the trial and con-
viction occur at the term at which the indictment was found, the court
may, at any time during that term, as well after as before conviction,
cause the clerk to endorse the indictment "filed", to date the endorse-
ment according to the fact, and sign it; and may also cause an entry
to be made on the minutes, that the indictment was returned into court
by the grand jury, with the day on which it was so returned. Over
such matters the court has control during the term, and may alter,
amend, or set them aside, as justice may require.-Franklin v. The
State......
2. Right to open and conclude argument.-The defendant in the judg-
ment, who applies for the supersedeas, is the plaintiff in the proceedings
subsequently had on his petition, and is therefore entitled to open and
conclude the argument.-Pearsall v. McCartney.... ... ... ... ....
3. Construction of statute imposing costs on successful plaintiff, in ac-
tion against executor or administrator, for failure to prove presenta-
tion of claim. Under the statute (Code, § 1887) which imposes the
costs on a successful plaintiff, in an action against an executor or ad-
ministrator, commenced after the death of the testator or intestate, for
a failure to prove a presentation of his demand, if the defendant in-
tends to raise the question of presentation, he must present it on the
record by plea or suggestion, so that the plaintiff may have an oppor-
tunity of proving the presentation, and the issue must be tried by the
jury; but, if no such plea or suggestion is made, and the plaintiff has a
general verdict on the issues joined, he is entitled to full costs.-Wal-
lace v. Nelson.....
4. Waiver of irregularities by failing to object.—If a writ be sued
out against two administrators, and the suit discontinued in the
declaration as to one, on whom process was not served, on the
ground of non-residence, the other defendant, if he appear and defend
without objection, cannot avail himself of the irregularity (if any) on
error. Shorter v. Urquhart.
5. Misjoinder of plaintiffs fatal.—In detinue for a slave, by several re-
mainder-men, tenants in common, after termination of precedent life
PLEADING AND PRACTICE AT LAW-CONTINUED.
estate, if the wife, whose interest is vested in her husband, be joined as
co-plaintiff with him, the misjoinder is fatal to the entire action.—
Walker v. Fenner..
6. Practice prescribed in applications for re-hearing after final judg-
ment in action at law, under Code (§§ 2407-2417).-Pratt &
McKenzie v. Keils & Sylvester.....
7. Amendment of complaint by change of plaintiffs.-Where an action
of trover is brought in the name of the assignor, for the use of the
assignee for the benefit of creditors, and the evidence shows that
the conversion took place after the assignment, the complaint cannot
be amended so as to authorize a recovery.-Stodder v. Grant & Nickels. 416
8. Defective service of process not available on error.-The sheriff's
failure to serve a copy of the complaint with the summons is a mere
irregularity, which, after judgment by default, is not available on
error.-Dew v. Cunningham...
9. Overruling demurrer to several pleas of which one is good.-Where
a demurrer to several pleas, each going to the whole declaration, is
overruled, and the plaintiff declines to reply, the judgment on the de-
murrer will not be reversed on error, if any one of the pleas is good,
since the erroneous overruling of the demurrer to the others could not
have prejudiced the plaintiff.—Jesse v. Cater....
10. Plea averring arbitration and award.—In an action on an injunction bond
where the matters in controversy in the injunction suit were submitted
to arbitration, and the arbitrators awarded that certain acts should be
done by the parties concurrently, a plea setting up the submission and
award must aver performance on the part of the pleader, or an offer to
perform, or a good and legal excuse for the omission to do either.... 475
11. When office judgment for want of plea may be entered.-Under
the provisions of the Code, in connection with the rules of practice in
the circuit courts, (Code, §§ 2258-60; App. 714, 9th and 10th rules,)
if the defendant fails to plead within the prescribed time, the plaintiff
may have the default cutered on the docket in vacation, at any time
before pleas are filed, and claim the benefit thereof at the ensuing term
of the court; but the defendant may plead at any time before the de-
fault is entered against him.-Woolsey v. M. & C. Railroad Co...... 536
12. What is sufficient entry of office judgment.-An entry on the docket, in
vacation, after the time for pleading has expired, in these words,
"Plaintiff claims judgment against defendant for want of a plea,"
signed by the plaintiff's attorneys, with the date attached, and attested
by the clerk, is not a sufficient entry of the default; nor is it sufficient
to sustain a judgment by default at the ensuing term, after pleas are
filed, although proof is made to the court that no pleas were filed when
it was entered...
.... 536
13. Rendition of judgment for costs against surety on claim bond.--The rendition
of a joint judgment for costs against the claimant and his surety on the
claim bond, even if erroneous, is not prejudicial to the claimant, and for
that reason is not available on error.-Irons v. Reynolds.......
14. Plea of title before suit brought in detinue.-In detinue for a slave, a
plea which only shows that the title was in the defendant on a specified
PLEADING AND PRACTICE AT LAW-CONTINUED.
day before the commencement of the action, is bad on demurrer.-
Patton v. Hamner.
15. Demurrer visited on first defective pleading.-Where there is a defec-
tive replication to a defective plea, a demurrer to the replication should
be visited on the plea....
16. Demurrer to evidence, object and effect of.-The object of a demurrer to evi-
dence is not to substitute the judge for the jury as a trier of the facis,
but to ascertain the law upon an admitted state of facts; and its effect,
when issue is joined, is to admit every fact which the testimony estab-
lishes, or tends to establish: the court does not stand in the place of a
jury, to render such a judgment as the jury ought to have rendered, but
to render a judgment against the party demurring, if the jury could
legally have done so from the evidence.-Shaw v. White......
17. Joinder in demurrer to evidence, when court may require.—Where the evi-
dence introduced by the plaintiff does not tend to establish his right to
recover, and the defendant introduces no evidence, but demurs to the
plaintiff's, the court is authorized (Code, § 2349) to require the plaintiff
to join in the demurrer....
See RULES OF PRACTICE, p. 8.
PLEADING AND PRACTICE IN CHANCERY.
1. Using bill in chancery as evidence in another cause.-When a bill in
chancery is offered in evidence, in another suit, as an admission of the
complainant, it is governed by the same rules that apply to all other
admissions; and consequently he cannot use his amended bill as rebut-
ting evidence against the original.-Pearsall v. McCartney....
2. How non-resident infant defendants mag be made parties.-Non-resident
infant defendants, whose father is dead, and whose mother is a non-resi-
dent, may be made parties to a bill by publication and sending a copy
of the order to their mother, with whom they live, at her known place
of residence; but sending a copy of the order to Elizabeth Lewis, "as
the mother of said infants," when their mother's name is shown by the
record to be Mary A. Lewis, is not a compliance with the rule.-Clark
v. Gilmer....
3. Decree reversed for error prejudicial to infant defendants.-When non-
resident infant defendants are not properly brought in as parties, the
decree will be reversed by the appellate court, and the cause remanded,
although the error escaped the notice of the solicitors and chancellor
in the court below, and was not specially assigned as error....
4. As to misjoinder of complainants, and waiver of rights by joining in bill.
Where an administrator and the surviving sister of his intestate, as
tenants in common, join in a bill for the recovery of slaves bequeathed
by the maternal grandfather of the sisters to their mother and her
children, and sold under execution against their father, the surviving
sister thereby waives her right of survivorship, if any she had; and the
defendant cannot raise the objection, that the will created a joint
tenancy, and that therefore there was a misjoinder of complainants.-
Hair v. Avery..........
PLEADING AND PRACTICE IN CHANCERY-CONTINUED.
5. Specific performance of parol contract-Burthen of proof as to char-
acter of possession.-Where the bill alleges possession under the parol
contract of sale, and the answer admits the possession, but alleges that
it was acquired and held under a contract of rent, and denies the
alleged contract of sale, the burthen of proof is on the complainant to
prove the character of the possession.-Danforth v. Laney........... 274
6. Evasive answer, as to facts within personal knowledge, equivalent to ad-
mission. Where material facts are stated in the bill, which, prima facie,
are within the knowledge, information, or belief of the defendant, his
failure to deny them, or to express his belief of their falsity, or to state
that he cannot form any belief respecting their truth, is a virtual ad-
mission that they are true. He cannot shelter himself behind equivo-
cal, evasive, or doubtful terms, nor behind a literal denial which
amounts to no more than a negative pregnant.-Grady v. Robinson... 289
7. Proof confined to facts in issue.--The defendant cannot be permitted to
prove, in bar of the relief sought by the bill, a fact which he failed to
put in issue in his answer..
8. Motion to suppress depositions for defects in commissioner's return.—A
commissioner, appointed to take the deposition of a witness in a chan-
cery cause, has power to administer the necessary oath, and to make a
return to the court under whose authority he acts; and where his
return embraces the commission, the interrogatories, the caption of
the answers, and the certificate, all these together must be looked to in
determining whether he performed his duty. A defect in one part of
the return, when supplied in another part, is no ground for suppress-
ing the deposition. If the return states that the deposition was taken
pursuant to the commission, it is not essential that it should also state
the manner of pursuing the commission. If it states that the witness
was "sworn and examined" by the commissioner, "by virtue of a com-
mission" issued out of the court to which the return is made; and the
commission and interrogatories returned specified the particular case;
and the deposition shows that the witness, at the time he was answer-
ing the interrogatories, knew that he was testifying in that particu-
lar case, the presumption is, that the commissioner swore the witness
by virtue of that commission, and in the case therein specified.-King
v. King..
9. Feme covert, how made defendant to bill.-When a married woman, a
resident of this State, is named as a defendant to a bill, together with
her husband and others, and there is no service of subpoena on her
husband, as required by the 4th rule of chancery practice, no plea,
answer, or demurrer filed by her and her husband, or by either of them,
and no order that she might answer or defend separately, or that she
might appear by solicitor or in any other manner,-publication against
her as a non-resident, and her appearance by solicitor, do not give the
court jurisdiction of her person, and the decree is not binding on her.
Boykin v. Rain......
10. Proof without allegations.—No decree can be rendered on proof which
is not applicable to any of the allegations of the bill.-Machem v.
Machem....
PLEADING AND PRACTICE IN CHANCERY-CONTINUED.
11. Variance between allegations and proof.-In a bill for specific per-
formance, the failure to prove an alleged stipulation of the contract
which the law implies is no variance; as where the bill alleges an
agreement by the husband to settle property on the wife, for her sole
and separate use, and the evidence fails to show the exclusiveness of
the promised gift.--Andrews v. Andrews.....
432
12. Burthen of proof as to negative averment.-Where the bill alleges a
negative, e. g. that complainant had no notice of the assignment of a
note against which he seeks to establish an equitable set-off, and the
answer avers notice, the burthen of proving notice is on the defendant,
and not on the complainant to disprove it.-Carroll v. Malone...................
13. Exceptions to master's report.-An exception to a master's report, in
stating an account, is in the nature of a special demurrer, and must
specify particularly the error complained of: if it is directed to a par-
ticular portion of the report, including several distinct items, and is
bad in part, it may be overruled in toto.-O'Reilly's Adm'r v. Brady... 530
14. Proper parties to bill to subject wife's separate estate to payment of
charge. A bill which seeks to subject the separate estate of a married
woman to the payment of a charge created by her during coverture, is
properly filed against her and her husband; and if it asserts no liability
against the husband, and no claim for which either busband or wife can
be charged personally, and its frame is such that, if a decree cannot be
rendered against the wife's separate estate, no relief whatever can be
granted under it, there is no misjoinder of defendants.-Walker and
Wife v. Smith.....
15. Misjoinder of causes of action.—When the separate estate of a mar-
ried woman is liable in equity for the hire of a slave under an express
contract, and also for reimbursement of jail fees necessarily paid by the
owner, after the expiration of the term of hiring, to regain the posses-
sion of his slaves, who had been committed to jail as runaways during
the term, the two demands may be joined in one bill.....
16. Waiver of objection by fauing to raise it in primary court.-Where
the defendants file an answer, embracing a demurrer on several distinct
grounds, they cannot afterwards raise in the appellate court, for the
first time, an objection to the prayer of the bill, which, if it had been
raised before the chancellor, might have been remedied by an amend-
ment.
17. Service of subpana on wife.--Where a subpoena is issued against husband
and wife, and is returned by the proper officer "executed" generally,
the service on the wife is sufficient....
18. Proper parties to bill of revivor in foreclosure suit.—In a suit for the fore-
closure of a mortgage, if the mortgagor dies before the rendition of
the final decree, and his will is admitted to probate by the court hay-
ing jurisdiction, his heirs-at-law, as well as his personal representatives
and devisees, are proper parties to the bill of revivor, and the com-
plainant proceeds without them at his peril, since they have the statu-
tory right to impeach the probate of the will, by bill in chancery, at
any time within five years.--Hunt and Frowner v. Acre and Johnson.. 580
19. Variance between allegations and proof.—The rule which requires a corre-
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