
    Tucker vs. Ball, administratrix, and vice versa.
    
    1. Where suit was brought on a contract, and the evidence for the plaintiff showed that a novation had been made, a new contract substituted for the original one and a new party introduced, a non-suit was properly awarded.
    2. A recovery could not be had by amending the declaration so as to include the new contract, and relying thereon.
    
      3. When the unsuccessful party in the court below brings the case to this court, and the successful party files a cross bill of exceptions, complaining of rulings adverse to ¡him, if a reversal of, the judgment of the court below is ordered, the questions made in the cross bill will be decided ; if the judgment below is affirmed, adecision thereon is unnecessary.''
   Speer, Justice.

[The original declaration in this case was by Mrs. Tucker against the administrator of M. C. Ball, to recover an amount due by said Ball to her under a contract between Ball and the father of plaintiff, by which Ball agreed to support plaintiff during her life. On the trial, plaintiff introduced in evidence to support her declaration the answer of Ball to a bill in equity, in which he admitted the contract, and also alleged that since its making plaintiff had married one Tucker; that he agreed with Tucker and his wife to give them a certain amount of property in lieu of the support due plaintiff, and Tucker agreed to waive his marital rights and settle on plaintiff and her children the property coming to him through her.. There was other testimony not material. Plaintiff sought to cover the variance between her declaration and proof by amendment. The court granted a non-suit.]  