page 435


INDEX

TO

THE PRINCIPAL MATTERS.


A.

ACCOUNT.

1. There is no necessity for an interlocutory decree to account, where the parties have made and agreed to a final settlement between themselves, unless there is a ground laid to surcharge and falsify the account. Calvit’s Ex’ors v. Markham et al. 343.

2. A general charge of error in an account is not sufficient some particular error must be specified as a ground to surcharge and falsify. Ibid.

3. Where an agent was appointed by the parties to settle the accounts, and the settlement, although not final, was sufficient to establish the complainant’s right to the sum sued for: Held, a final decree may be made, without taking an account betweea the parties, under an interlocutory order. Ibid.


ACCOUNT TO BE FILED WITH PLAINTIFF'S DECLARATION.

1. The account required by the statute to be filed with the declaration of the plaintiff, must state distinctly the several items of his claim against the defendant. Soria v. The Planters’ Bank, 46.

2. A general statement of account filed with the count for money loaned, "that the defendant was, before a particular day mentioned in the count, indebted to the plaintiff in 8000 dollars, for money before that time loaned," is not such an account as the statute requires. Ibid.



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INDEX.


ABATEMENT.

1. By the statute of 1838, it is not necessary to verify a plea in abatement by affidavit, when the abateable matter appears upon the face of the record. Lillard v. The Planters’ Bank, 78.

2. When it was pleaded in abatement, under the statute of 1837, requiring the drawers and endorsers of promissory notes and bills of exchange, if being and residing in this state, to be joined in the same action, that all the endorsers were not joined though living and resident in the state, and the plea was treated as a nullity for want of verification by affidavit: Held, the facts which constituted the gravamen of the plea did not appear upon the record. Ibid.

3. When some of the drawers or endorsers of a note, or bill, are not joined as defendants in a suit thereon, it is not necessary, under tho statute of l837, that the plaintiffs should allege that such parties are dead, or do not reside this state. Ibid.

4. It is an established rule of pleading, that, if it appear on the pleadings of the plaintiff that the party omitted is still living, and ought to be joined, the defendant may demur; but when the objection does not so appear, it can only be taken advantage of by plea in abatement, verified by affidavit. Ibid.


ADMINISTRATOR.

1. Where there is no husband or wife, the next of kin is entitled to the administration of the estate of the deceased, unless under twenty-one years of age, of unsound mind, incapable, according to law, of making a contract, or a convict of some crime rendering him infamous. Smith v. Moore, 40.

2. A motion in the circuit court, made in time, against an administrator to refund money, which has been paid us security for the intestate, and an appearance and resistance of the motion by the administrator, is a sufficient presentation of the claim in compliance with the 115th section of the Orphans’ Court law. Smith v. Smith’s Adm’r, 216.

3. Judgment on a claim against an administrator in his representative capacity, is sufficient, authentication of such claim within the meaning of the 90th section of the Orphans’ Court law. Ibid.

4. If profits, in the possession of an administrator de bonis non, be assets, he may be compelled to account for them by the probate court; if not assets, the remedy is at law. Carmichael et al., Appellants, v. Browder, 252.

5. Where distribution is claimed, a bond to refund must be tendered, before a breach of the administration bond can be charged upon the administrator. Ibid.

6. The 90th section of the orphans’ court law regulating the authentication of claims against the estates of deceased persons, was only designed to protect the administrator or executor against the consequences of wrongful payments which he may choose to make voluntarily; for if



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INDEX.


ADMINISTRATOR—continued.

he discharges a debt without the voucher required by law, he does it at his own risk. Campbell v. Young et al., Ex’rs, 301.

7. The creditor's right to sue for the recovery of his claim is not in any way affected by the statute. Ibid.


AGREEMENT.

Where the consideration of a promissory note for the payment of money at a time certain, was a bond in which the payee agreed without fixing any definite period for performance, to procure a deed from the person entitled to an Indian reservation and to make all the necessary proof before the government officer to perfect the title: Held, an action could be sustained on the note, although the title to the land had not been perfected, in as much as the agreement to pay was independent of the covenant to make titles. The remedy of the vendee is in a suit on the bond for covenants broken. Rector v. Price, 32l.


AMENDMENT.

1. The allowance or disallowance of amendments is a matter within the sound discretion of the court, and not, therefore, ground for error. Green v. Robinson, 105.

2. A motion to amend the pleadings will not be entertained after the case has been submitted to the juny. It is not a ground of surprise, that the cause is regularly reached on the docket and disposed of. The counsel must know the progress of the court and be in attendance. Ibid.


APPEAL BOND.

1. The appeal bond must be in the name of all the parties against whom the judgment was rendered. If some of the parties will not join in the appeal, any one who may desire a revision of the judgment, may proceed by summon and severance on his own case alone, and exempt himself from any eventual liability for the others. Green et al. v. The Planters’ Bank, 43.

2. An appeal bond as well as the security must be approved of by the court. Where the court only approved of the security and authorised the bond to be given any time within thirty days: Held, insufficient. Porter v. Grisham, 75.

3. Where the court gave twenty days to execute an appeal bond, but the party executed it two days after it was granted, during the session of the court, and the surety was approved by the court, and it appeared in the record as a part of the proceedings: Held, the appeal must be sustained. Carmichael v. Trustees of School Lands, 84.


APPELLATE COURT.

1. The record certified by the judge of the court below is the only evidence,
37*



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INDEX.


APPELLATE COURT—continued.

to the appellate court, of the history of the proceedings in the cause, and the appellate court will not examine any question unless regularly presented by the record. Green v. Robinson, 105.

2. If a motion ore tenus is overruled upon the trial, the party objecting must except at the time or it will be too late. An affidavit stating that suit motion was made and overruled, and a certificate by the court below, that the affidavit was presented, will not authorise the appellate court to review the correctness of the judgment of the court below, in as much as the proceedings on the motion cannot thus be made a part of the record. Ibid.

3. The record must show a judgment in order to give jurisdiction to the appellate court. Rogers et al. v. M'Daniel, 172.

4. The written evidence relied on in the court below, should be set out in the bill of exceptions, if to be reviewed by the appellate court. Ibid.


ATTACHMENT.

Where the lessor distrains for rent under the statute, he must give bond and security as in other cases of attachment. A bond without security does not authorise the issuing of an attachment to distrain for rent. Cornell v. Rulon, 54.


ATTORNEY.

1. The attorney of record cannot move against the sheriff, in his own name, to pay over money for general balances due him as attorney by the client. Harney v. Demoss, 174.

2. Where an attorney neglected to bring suit on a promissory note, at the first term after it was placed in his hands for collection; in consequence of which neglect, the claim was lost by the subsequent insolvency of the maker: Held, that the attorney was liable for the debt. Fitch v. Scott, 314.

3. An attorney has no authority to compromise the claim of his client, and if he does so, he takes upon himself the consequences of its loss, or the damages which his client may sustain. Ibid.


B.


BARON AND FEME.

See HUSBAND AND WIFE.


BILL OF EXCHANGE AND PROMISSORY NOTES.

1. When it was pleaded in abatement under the statute of 1837, requiring the drawers and endorsers of promissory notes and bills of exchange, if being and residing in this state, to be joined in the same action, that all the endorsers were not joined though living and resident in the



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INDEX.

BILL OF EXCHANGE, &c. — continued.

state, and the plea was treated as a nullity for want of verification by affidavit; Held, the facts which constituted the gravamen of the plea did not appear upon the record. Lillard v. The Planter’s Bank, 78.

2. When some of the drawers or endorsers of a note, or bill, are not joined as defendants in a suit thereon, it is not necessary, under the statute of 1837, that the plaintiffs should allege that such parties are dead or do not reside in the state. Ibid.

3. Under the statute of this state, in actions on promissory notes, the party by pleading in chief admits the execution of the note. Green v. Robinson, 105.

4. Where a promissory note, given to secure payment of the purchase money for land, was payable on a fixed day, and the payment was to be made before the deed to the land was to be executed: Held, the covenants were mutual and independent, and that an action would lie on the note before conveyance made. Leftwich et al. v. Coleman, 167.

5. The damages which are allowed upon protested inland bills of exchange are as fixed in amount, as much an incident to the debt and as readily calculated and asseesed by the clerk as the interest, and it is the province of the clerk to assess them, without the intervention of a jury upon a judgment of nil dicit. In such a case a judgment by nil dicit is equivalent to a verdict, and finds a11 the facts to be true as stated in the declaration. Grigsby v. Ford et al., 184.

6. The fact, that an inland bill was not protested at the place, where on its face, it was made payable, cannot be taken advuntage of, after judgment by nil dicit. The defect is cured by the statute of jeofails. Ibid.

7. It is well settled, that where a note or bill is payable to two, it must be endorsed by both in order to transfer the entire interest in it to the endorsee. A simple averment of a release of interest in such a note, by one of the payees, does not authorise the endorsee of the other to bring suit. Bennet et al. v. M’Gaughy, 192.

8. The act of the legislature of 1836, provides, that suit shall not be brought before the maturity of the bill on a protest for non-acceptance merely; repeals the damages on domestic bills, and reduces those on bills drawn here on a sister state to five per cent., giving ten per cent. on foreign bills. The act of May, 1837, provides, that no damages shall be allowed on bills drawn on a sister state, and gives five per cent. on domestic bills. A bill drawn after the act of 1836, and before that of 1837, is entitled to damages at the rate of five per cent. Sadler v. Murrah, 195.

9. When notice of a protest of a promissory note is to be given to a member of congress, it must be sent to his place of residence, and if his residence is not known due diligence must be exercised to ascertain the same. Notice sent to Washington City, District of Columbia, when the party has a residence in the state which he represents, is not sufficient. Walker v. Tunstall, 209.


INDEX.


BILL OF EXCHANGE, &c. — continued.

10. If a member of congress had no fixed place of residence, but was known to be in Washington City, notice sent there would be sufficient. (Semble.) Ibid.

11. Where a bill of exchange, not made payable at any particular place fell into the hands of a bank, and neither the acceptor nor the endorser knew that the bill was in the bank, and no custom was proved in regard to the negotiation of such paper, from the existence of which they might conclude the bill would be placed in bank: Held, in an action on the bill against the endorser, demand of payment at the counter of the bank is not sufficient to charge the endorser. Lewis v. The Planters’ Bank, 257.

12. Where the consideration of a promissory note for the payment of money at a time certain, was a bond in which the payee agreed without fixing any definite period for performance, to procure a deed from the person entitled to an Indian reservation and to make all the necessary proof before the government officer to perfect the title: Held, an action could be sustained on the note, although the title to the land had not been perfected, in as much as the agreement to pay was independent of the covenant to make titles. The remedy of the vendee is in a suit on the bond for covenants broken. Rector v. Price, 321.

13. If, after a note has been delivered to the payee, a particular place of payment be inserted therein by interlineation, without the maker’s consent, he will be discharged. Oakey v. Wilcox, 330.

14. The endorsee of a promissory note is entitled to file the same as an offset in a suit against him by the payee and prior endorser to recover money due by the defendant on another claim. Pease v. Turner, 375.

15. An endorsement is in the nature of a new and distinct contract, and is an engagement to pay, to whoever may by subsequent negotiation become the holder of the bill or note, the amount secured by it; it may, therefore, be given in evidence on a count for money had and received. Ibid.

16. The act of 1837, which only changed the rule of pleading, does not affect the right of the endorsee of a promissory note to give it in offset to a suit by the endorser. Ibid.

17. Where two separate suits were brought against the drawer and endoser of a promissory note, and judgments had, and forthcoming bonds given in each case; the bond against the maker of the note having been given and forfeited prior to that against the security: Held, the forfeiture of the forthcoming bond against the maker of the note, did not operate as a satisfaction of the judgment against the security, in as much as the judgments were separate, and in separate suits. M'Nutt et al. v. Wilcox & Fearn, 417.

18. But it seems the rule is different when the judgment is joint, on a joint, or joint and several liability. Ibid.



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INDEX.


BOND (TO MAKE TITLE.)

Where the considera:ion of a promissory note for the payment of money at a time certain, was a bond in which the payee agreed without fixing any definite period for performance, to procure a deed fron the person entitled to an Indian reservation and to make all the necessary proof before the government officer to perfect the title: Held, an action could be sustained on the note, although the title to the land had not been perfected, in as much as the agreement to pay was independent of the covenant to make titles. The remedy of the vendee is in a suit on the bond for covenants broken. Rector v. Price, 321.


BOUNDARY.

1. The act of congress, of 1805, provides that the boundary lines of sections which shall not have been actually run and marked, (as required,) shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been, or can be fixed, the said boundary line shall be ascertained by running from the established corners, due north and south or east and west lines, as the case may be, &c. Newman v. Foster’s Heirs, 383.

2. Where there is no proof that the division lines have been actually run and marked on the ground, by the original survey, the line can be ascertained in no other legal mode than that pointed out by the act of congress. Whether a line has been so run and marked as to close all further inquiry into the question of boundary, is a question of fact for the determination of the jury. Ibid.

3. The survey is to be taken as part of the patent. It is the source of title, and a matter of record, and may be resorted to in order to control the calls of the patent. Ibid.

4. If the plat and certificate of survey show an artificial or natural boundary, although it may vary from the course or distance called for, it will, nevertheless, be taken as the true boundary, if it can be well ascertained as described in the grant. Ibid.

5. The line of division must not only be run, but it must be marked on the ground, to bring it within the general rule of a closed survey. Ibid.

6. Parol evidence is as much admissible to prove boundary as any other fact. Ibid.

7. A dotted line upon a map is not per se conclusive evidence that the line was run, but parol testimony may be introduced to explain the diameter of the dotted line, and prove that it never was actually run and marked. Ibid.

8. It seems to be understood among surveyors, that a dotted line upon a map of survey shows that the line never was actually run and marked. Ibid.



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INDEX.


C.

CAPIAS AD RESPONDENDUM.

It is immaterial whether the clerk subscribe his name to a writ of capias ad respondendum himself, or suffer another to do it for him. If it is issued with the clerk's consent and approbation, it is sufficient. Gamble et al. v. Trahen, 32.


CATTLE (DAMAGE FESANT)

1. Where A, who had an insufficient fence, took up the mule of B, which was doing damage in his field, and tied the mule in his stable, and the mule in a struggle to escape, was choked to death: Held, A was liable in an action of trespass, which is the proper remedy in such case. Dickson v. Parker, 219.

2. Where cattle are found upon land doing an injury, the owner, under ecertain restrictions, is allowed to seize and distrain them, as a pledge for the payment of the damages; but this will not be permitted unless the owner of the cattle would be liable to an action. Ibid.

3. Where some of the witnesses stated, that the property destroyed was worth five dollars, others one hundred dollars, and others, that it was worth nothing; and the verdict was for the defendant: Held, to the jury exclusively belongs the province of weighing the testimony and pronouncing the result, and although it appears that the preponderance of testimony was in favor of the plaintiff, yet the appellate court will not, for that reason alone, award a new trial. Ibid.


CERTIORARI.

The power to award a certiorari has always been conceded to the courts, as well in criminal as in civil cases. Loper v. The State, 429.


CITATION, (SERVICE OF.)

1. The sheriff made affidavit that he had served the citation on the attorney of records, for defendant in error to appear at the December term of said court, but had made diligent search for the citation and could not find it. It also appeared that fifteen days had elapsed since the plaintiff in error was bound to know that his citation had not been served, and no steps taken for an alias citation: Held, that the cause must be dismissed for laches of plaintiff in not applying for an alias citation. Newell et al. v. Briggs et al. 45.

2. The writing of an acknowledgment of service of citation upon the back of it, by the clerk of an inferior court, is a mode of service not known to the law, and therefore void. Cox v. Wadlington et al. 57.

3. The act of the legislature of 1837, authorises the clerks of the circuit courts to issue writs of error, and, also, citations to adverse parties.



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INDEX.


CITATION, (SERVICE OF.)

The clerks of the circuit courts issue their processes under the seal of their respective courts, which practice has been approved by this court; but such processes are required to be tested and signed, as provided by the Supreme Court law. Trahern v. Shackelford, 73.

4. A citation tested as follows: "Witness the Hon. Wm. L. Sharkey, presiding judge of the High Court of Errors and Appeals of said state, and seal of the circuit court of Hinds:" Held to be regular. Ibid.


COMMISSION TO TAKE TESTIMONY.

1. A commission to take testimony directed to A or B in the alternative is well directed. Doe v. King's Heirs, l25.

2. If the commissioners certify that the witness was duly sworn, the presumption will be that he was sworn according to law. Ibid.

3. The deposition of a notary public contained the following interrogatories: "1. Were you a notary public in the city of New Orleans, and acting as such during the month of January, 1837? 2. Did you, as such notary, protest the bill of exchange hereunto annexed? 3. Did you give notice of said protest, or that payment of said bill had been demanded, and refused, to the drawers? If yea, declare at what time and in what manner you gave such notice, to whom and what place were the notices directed; and state particularly whether said notices were forwarded in time to go out by the first mail that left on the day after the protest." Held, these were legal questions. Sadler et al. v. Murrah, 195.


CONSTITUTIONAL LAW.

1. Where a deputy sheriff purchased land at sheriff's sale, the sale cannot be set aside on motion. Such a proceeding is in violation of the constitutional provision, which declares that no man shall be deprived of his life, liberty, or property, except by due course of law. Flournoy v. Smith, 62.

2. Under that provision of the bill of rights which declares, that "no person’s property shall be taken or applied to public use without the consent of the legislature, and without a just compensation first made therefor," the compensation must precede the seizure of the property for public uses. Thompson v. The Grand Gulf Railroad and Banking Company, 240.

3. That provision of the charter of the Grand Gulf Railroad and Banking Company which, in case the company cannot agree with the owners of land over which said road is to pass, upon the compensation to be paid therefor, authorises the company to petition to the circuit court of Claiborne county, to summon and empannel a jury to assess the damages, and directs the court, upon valuation assessed, to convey the land to the company, and give judgment and execution against the company, and in favor of the owner of the land, for the amount of the valuation,



page 444


INDEX.


CONSTITUTIONAL LAW—continued.

is unconstitutional. Judgment and execution is not compensation within the meaning of the constitution. Ibid.

4. This court has no power to render different judgment from that directed by the legislature. The court will declare the remedy provided insufficient, but will not undertake to give one that is sufficient. Ibid.

5. A proceeding by petition under the charter of the Grand Gulf Railroad and Banking Company, to assess the value of the land over which the road is to pass, and also assess the damages, so affects the interests of the owner as to make him a party to the proceedings. Ibid.


CORPORATION.

1. Where a corporation sues, they must prove, under the general issue that they are a corporation. Carmichael v. Trustees of School Lands, 84.

2. The trustees of school lands, although not incorporated hy a particular name, are, nevertheless, quasi corporations, and must prove under the general issue their authority to sue. Like all other corporations, they possess only such powers as are given them by law, and must be subject to the rules governing corporations. Ibid.

3. The right of the trustees of school lands to sue cannot be denied by plea in abatement, as it would be equivalent to nul tiel corporation, which is now considered bad, because it amounts to the general issue. Ibid.


COVENANT.

1. Where a promissory note, given to secure payment of the purchase money for land, was payable on a fixed day, and the payment was to be made before the deed to the land was to be executed; Held, the covenants were mutual and independent, and that an action would lie on the note before conveyance made. Leftwich et al., Appellants, v. Coleman, 167.

2. Where, by the terms of the covenant, money is to be paid and other things to be performed before conveyance, it is not necessary for the vendor to plead a tender of titles on his part; it will be sufficient if he aver readiness to perform. Bright v. Rowland, 399.

3. Where a deed with warranty is tendered, and the other party does not object to it, it is a sufficient offer of performance. Ibid.


D.

DAMAGES.

1. On a judgment affirming the dismissal of a writ of error coram nobis, the appellate court will give ten per cent. damages. Mitchell et al. v. Fearn et al., 122.

2. The act of the legislature of 1836, provides, that the suit shall not be brought before the maturity of the bill on a protest for non-acceptance merely; repeals the damages on domestic bills, and reduces those on



page 445


INDEX.


DAMAGES—continued.

bills drawn here on a sister state to five per cent., giving ten per cent. on foreign bills. The act of May, 1837, provides, that no damages shall be allowed on bills drawn on a sister state, and gives five per cent. on domestic bills. A bill drawn after the act of 1836, and before that of 1837, is entitled to damages at the rate of flve per cent. Saddler v. Murrah, 195.

3. An agreement for liquidated damages for the non-performance of covenants of a certain nature and amount, may be enforced for the amount of damages stipulated; but it is otherwise, where the covenant is certain and fixed as to the amount. Bright v. Rowland, 398.


DEED.

1. The administrator will not be permitted to give parol evidence of the sale of the land of the estate by himself. The deed must be produced, or its absence accounted for. Randolph v. Doss et ux., 205.

2. After a deed has been read and admitted on the trial below, its authenticity cannot be called in question in the appellate court. The objection will be considered as waived. Ibid.

3. Where the grantor in the deed set out, that the consideration money was paid to a third person: Held, to be sufficient. Doe ex dem. Holley v. Curtis, 231.

4. The deed described the promises as "being 178 acres of land on the west side of Biloxi (bay) on the sea shore, in the county of Jackson:" Held, to be void for want of certainty and excluded from the jury on trial. Ibid.

5. There must be sufficient certainty in the description of the land to point to its locality, and distinguish it from other tracts of land. Ibid.


DEMURRER.

1. On special demurrer to the declaration, it is discretionary with the court, under the statute, to allow the plaintiff to amend and go to trial instanter. Warbington v. Norris, 227.

2. The statute authorises the court to reject a demurrer whenever it shall be manifestly frivolous and intended only for delay. Ibid.


DEPOSITIONS.

1. A commission to take testimony directcd to A or B in the alternative is well directed, Doe v. King’s Heirs, 125.

2. If the commissioners certify that the witness was duly sworn, the presumption will be that he was sworn according to law. Ibid.

3. The deposition of a notary public contained the following interrogatories: "1. Were you a notary public in the city of New Orleans, and acting as such during the month of January, 1837? 2. Did you, as such notary, protest the bill of exchange hereunto annexed? 3. Did you give notice of said protest, or that payment of said bill had been demanded
VOL. III.—38



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INDEX.


DEPOSITIONS—continued.

and refused, to the drawers? If yea, declare at what time and in what manner you gave such notice, to whom and what place were the notices directed; and state particularly whether said notices were forwarded in time to go out by the first mail that left on the day after the protest." Held, these were legal questions. Sadler et al. v. Murrah, 195.


DETINUE.

1. In an action of detinue the rule is, that, although possession by the defendant must be proved, yet it is not necessary, that it should be continued up to the time of the commencement of the suit, and the plaintiff will be entitled to recover, unless the defendant has been lawfully dispossessed. Lowry v. Houston, 394.

2. A judgment against the administrator can operate as a lien only upon the assets in his hands; and where he wrongfully delivers up possession of property which is not assets, detinue will lie against him for its recovery, in as much as he is not lawfully dispossessed thereby. Ibid.


DISTRESS OF CATTLE DAMAGE FEASANT.

Where cattle are found upon land doing an injury, the owner, under certain restrictions, is allowed to seize and distain them, as a pledge for the payment of the damages but this will not be permitted unless the owner of the cattle would be liable to an action. Dickson v. Parker, 219.


DOWER.

1. The constitution and laws of this state confer upon the probate court general powers in cases of dower. These powers are not restricted by the relation of the parties to the suit. It is immaterial whether the contests for dower be between the widow and heir, or the widow and a stranger. The jurisdiction of the court is founded on the claim of the widow, and site will be deemed dower against all the world, if found entitled thereto. Randolph v. Doss and Wife, 205.

2. Where a party contests the claim on the merits in the court below, he will not be permitted to insist on proof of the marriage in the appellate court. Ibid.

3. The administrator will not be permitted to give parol evidence of the sale of the land of the estate by himself. The deed must be produced, or its absence accounted for. Ibid.

4. Where an order for publication was made by the probate court, on the filing of a petition for dower, it will be presumed, in the absence of any evidence to the contrary, that the publication was made. Ibid.

5. Proof of the seisin of the husband during coverture, is sufficient to entitle the widow to dower, as against all the world, except those who may have the title paramount, for it is a well settled rule, that the seisin of the husband, even for a moment, will entitle the wife to dower against



page 447


INDEX.


DOWER—continued.

strangers, and those claiming under him, although his seisin be tortious. Ibid.

6. Those who claim under the husband cannot set up an outstanding title. Ibid.

7. After a deed has been read and admitted on the trial below, its authenticity cannot be called in question in the appellate court. The objection will be considered us waived. Ibid.

8. Where land is conveyed and a mortgage given immediately to secure the purchase money: Quaere, as to whether the wife or the mortgagor is entitled to dower. Wooldridge v. Wilkins, 360.

9. In proceedings for dower those deriving title from the husband will not be permitted to deny his seisin. Ibid.

10. Lands purchased by partners under an agreement that they shall be sold for the benefit of the partnership, will be regarded as joint stock, and will be likewise so considered, though there be no agreement, if there be such an application of them to the purposes of the concern as evidences an original understanding of the parties, that the lands are to be treated as such, and not as estate in common. But where there is no such agreement, nor such an application of the lands as evinces the original understanding to have been that they were considered as joint stock, the wife of a deceased partner is entitled to dower in the lands. Ibid.

11. The widow is endowable of lands according to their value at the time of the alienation of the husband; she can not have any benefit, so fur as regards improvements effected by the money or labor of the alienee. Ibid.


E.

EQUITY, COURTS OF.

1. In actions of ejectment it is now necessary in all cases to prove the defendant’s possession of the disputed premises at the time of the commencement of the suit. Newman v. Foster’s Heirs, 383.

2. The only case in which a special consent rule is necessary, is where an actual entry is necessary to be made upon the land previous to suit brought. Ibid.

3. When the court allowed an amendment of the consent rule, which had no influence on the rights of the parties or the quality and measure of proof required: Held, not to be error. Ibid.

4. The allowance of amendments is not a matter for which error will lie. Ibid.


ERROR.

1. A judgment by default on the special count, without a discontinuance on the money counts, is not error. Soria v. The Planters’ Bank, 46.



page 448


INDEX.


ERROR—continued.

2. The account required by the statute to be filed with the declaration of the plaintiff, must state distinctly the several items of his claim against the defendant. Ibid.

3. A general statement of account filed with the count for money loaned, that the defendant was before a particular day mentioned in the count, indebted to the plaintiff in 8000 dollars, for money before that time loaned," is not such an account as the statute requires. Ibid.

4. Any person whose interests are affected by a judgment, may prosecute a writ of error. Flournoy v. Smith et al. 62.

5. Where a deputy sheriff purchased land at a sheriff’s sale, and the sale was set aside by motion: Held, the deputy had sufficient interest in the judgment to enable him to sue out a writ of error. Ibid.

6. Where a charge asked for, is in part correct and partly erroneous, the court are not bound to separate it, but may refuse it altogether. Doe v. King’s Heirs, 125.

7. A general decree on the foreclosing of a mortgage, that the complainant have execution for any balance unsatisfied by the sale, is error; for which the decree will be reversed. The remedy for such balance is at law. Stark v. Mercer, 377.

8. It has been uniformly decided, that it is not error in the judge to refuse instructions unless the party shows the existence of proof to which they could be fairly applied. Newman v. Foster’s Heirs, 383.

9. When the court allowed an amendment of the consent rule, which had no influence on the rights of the parties or the quality and measure of proof required: Held, not to be error. Ibid.

10. The allowance of amendments is not a matter for which error will lie. Ibid.

11. If the time and place of the holding of the court appear in any part of the record, it will be sufficient. Loper v. The State, 429.

l2. The whole of the record must be considered together, and that which is uncertain in one part, may be rendered clear by that which is certain in another part. Ibid.

13. A separate certificate of the clerk to each paper in the record is sufficient, and if such papers are styled "originals" by him, it will be regarded as a mere clerical mistake, which cannot change the character of the record. Ibid.

14. The power to award a certiorari has always been conceded to the courts, as well in criminal as in civil cases. Ibid.

15. It seems that a prisoner who has applied for and obtained a change of venue, will not be permitted to question the regularity of the proceedings. And the presumption will be in favor of the regularity of the proceeding below, in absence of any proof to the contrary. Ibid.

16. If the prisoner go to trial without a copy of the indictment and venire having been served upon him two entire days before trial, he waives his privilege of such service. Ibid.



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INDEX.


ERRORS, ASSIGNMENT OF.

1. Errors must be assigned within the time prescribed by the rule, or the cause will be dismissed on motion. Adams et al. v. Munson et al., 77.

2. A general assignment of errors, not pointing out any particular error, is not a sufficient assignment. Ibid.

3. Under a rule of court, cases brought up for delay only, will be dismissed on suggestion of counsel in writing. Ibid.


ERROR, WRIT OF.

1. A writ of error cannot be sustained after forthcoming bond taken and forfeited. Stamps v. Newton, 34.

2. The writ of error bond must contain condition for the performance of the sentence, judgment, or decree, which the High Court of Errors and Appeals may render in the case, or the cause will be dismissed on motion. Rogers v. Gallaway, 58.

3. The act of the legislature of 1837, authorises the clerks of the circuit courts to issue writs of error, and, also, citations to adverse parties. The clerks of the circuit courts issue their processes under the seal of their respective courts, which practice has been approved by this court; but such processes are required to be tested and signed, as provided by the Supreme Court law. Trahern v. Shackelford, 73.

4. A citation tested as follows: "Witness the Hon. Wm. L. Sharkey, presiding judge of the High Court of Errors and Appeals of said state, and seal of che circuit court of Hinds:" Held to be regular. Ibid.

5. Causes can be brought into the High Court of Errors and Appeals by appeal or writ of error, but to give jurisdiction to the court, the requisitions of the law in relation to obtaining such writ or appeal must be strictly complied with. Porter v. Grisham, 75.

6. A writ of error will not lie from a judgment on a voluntary nonsuit. Ewing et al. v. Glidwell et al. 332.

7. In this state the courts do not possess the power to compel a party to a nonsuit. Ibid.


ERROR, WRIT OF CORAM NOBIS.

On a judgment affirming the dismissal of a writ of error coram nobis, the appellate court will give ten per cent. damages. Mitchell et al. v. Fearn et al. 123.


EXPATRIATION.

W. was appointed consul to one of the commercial ports of Texas, where he removed in 1835, and died in 1836. He stated at the time of his removal, that he intended to resign his consulate and settle in Texas, with a view to practise law, but there was no evidence of his having carried this intention into effect: Held, the facts do not constitute expatriation. Wooldridge v. Wilkins, 360.
38*



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INDEX.


EVIDENCE.

1. A judge cannot give judgment upon his private knowledge, but must render it according to law and evidence. Smith v. Moore, 40.

2. Where the judge of probate refused administration of an estate to the next of kin, on the ground of mania a potu, as a fact within the knowledge of the court: Held, to be irregular. The judge must be sworn as a witness as to facts within his own knowledge. Ibid.

3. Where a plat and certificate of survey were admitted in evidence to the jury, when it did not appear that there was any question of boundary under the statute, or other proceeding to which it could properly refer: Held, the admission of the paper in evidence was irregular. Where his plat or survey was embraced in the bill of exceptions, they were held to be the same offered in evidence, although wanting proper words of designation and identity. Carmichael v. Trustees of School Lands, 84.

4. The certificate of the register of the land office, that a map is a correct representation, is not sufficient to make it evidence under the statute. It must be certified to be a true copy of the original, and that the original is of record in the office. Doe ex dem. Martin v. King’s Heirs, 125.

5. A survey and map, made under the authority of the United States, is not admissible to change the survey of Spanish grant, made prior to October, 1795. Ibid.

6. The surveyor-general has no right to issue an order to alter original lines. Ibid.

7. An ex parte affidavit is not sufficient to prove that an original was lost, or that the instrument produced is a copy. Ibid.

8. Judgment against a sheriff on motion to pay over money, is not evidence in an action against the sureties on the sheriff's bond to establish the breach thereof, in failing to pay over the money. Carmichael v. The Governor, 237.

9. Hearsay evidence is not admissible in a state prosecution for fornication. Overstreet v. The State, 328.

10. The certificate of the clerk of the register of the land office is not legal evidence of the entries of land. The books of the register being public in their nature, it is competent to prove their contents by a sworn copy. Wooldridge v. Wilkins, 360.

11. When the officer who has the custody of a patent refuses to deliver it, parol testimony is not admissible to prove its existence, but a subpoena duces tecum must be applied for. Ibid.

12. An endorsement is in the nature of a new and distinct contract, and is an engagement to pay, to whoever may by subsequent negotiation become the holder of the bill or note, the amount secured by it; it may, therefore, be given in evidence on a count for money had and received. Pease v. Turner, 375.

13. Where a prisoner in custody makes confessions without any compulsion or promise of advantages, it seems they are admissibie in evidence. Peter v. The State, 433.



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INDEX.


EXCEPTIONS, BILL OF.

The bill of exceptions must show the precise ground of exception. Friar v. The State, 422.


EXECUTION.

1. After a forthcoming bond taken and forfeited, a second execution, levy, and bond, on the same judgment, are absolute1y void. Witherspoon v. Spring, 60.

2. Quashing an execution will not violate a sale of property previously made, in pursuance of the execution. Doe ex dem. Van Campan v. Snyder, 66.


EXECUTORS AND ADMINISTRATORS.

1. The executor is individually responsible, where he promises to pay on account stated, when it does not appear that it was for money due by the testator, although he expressly promised "as executor." Sims v. Stilwell, 176.

2. A written acknowledgment of the receipt of specific articles, is a sufficient proof of consideration to support a promise to pay. Ibid.

3. A judgment against the administrator can operate as a lien only upon the assets in his hands; and where he wrongfully delivers up possession of property which is not assets, detinue will be against him for its recovery, in as much as he is not lawfully dispossessed thereby. Lowry v. Houston, 395.


F.

FEME COVERT.

1. A deed of gift of negroes, from the husbanü to the wife, without the intervention of a trustee, upon an agreement to live separate, will be no bar to an action at law by the husband for the recovery of the property. Tourney v. Sinclair, 324.

2. The husband is entitled to a vested legacy of the wife, although not reduced into possession during coverture, and the purchaser of the same from the husband will acquire a good title. Lowry v. Houston, 394.

3. An assignment of the wife’s choses in action by the husband during the lifetime of the wife, for a valuable consideration, has been repeatedly held to be valid. Ibid.

4. It seems that the husband is considered as the next of kin to his wife, by relation of marriage, and takes her property as such in case of death; but whether so considered or not, her personal property, remaining after death goes to her husband, either jure mariti, or as next of kin. Ibid.


FORTHCOMING BOND.

1. Judgments on forfeited forthcoming bonds are regarded in the same light



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INDEX.


FORTHCOMING BOND—continued.

as judgments obtained in the ordinary mode of proceeding. Reeves v. Burnham, 1.

2. A writ of error cannot be sustained after forthcoming bond taken and forfeited. Stamps v. Newton, 34.

3. After a forthcoming bond taken and forfeited, a second execution, levy, and bond, on the same judgment, are absolutely void. Witherspoon v. Spring, 60.

4. Where two separate suits were brought against the drawer and endorser of a promissory note, and judgments had, and forthcoming bonds given in each case; the bond against the maker of the note having been given and forfeited prior to that against the security: Held, the forfeiture or the forthcoming bond against the maker of the note, did not operate as a satisfaction of the judgment against the security, in as much as the judgments were separate, and in separate suits. M'Nutt et al. v. Wilcox & Fearn, 417.

5. But it seems the rule is different when the judgment is joint, on a joint, or joint and several liability. Ibid.


H.

HUSBAND AND WIFE.

1. P. Pressler by his will directed that his property should be kept together in the hands of his executors, until his only daughter J. P. became of lawful age or married, then to be equally divided between his wife and daughter; but in case the daughter died without issue, then the will gave to the wife all tbe property, real and personal. Pressler died in 1824, and in 1826 Mrs. Pressler intermarried with one James, and the appellees are the only issue of that marriage. Miss Pressler died in 1832 at the age of fifteen. James died in 1831, and in 1832 his widow married Scott one of the appellants. In 1834 Mrs. Scott died, leaving the appellant the survivor. The appellees sought a recovery of a portion of the property left by Pressler to their mother; decree in their favor by the chancellor. By the Court:—The wife of the testator had a vested legacy in the property, and her second husband, James, acquired a right to it by marriage, James took possession of the property on his marriage with the widow, and claimed the same in virtue of this marriage: Held, to be a sufficient possession to vest the property in the husband, in as much as the property was by the will, to be kept together, until the daughter came of age or married. The appellants inherited from their father two-thirds of their mother’s half of Pressler's property, which was equal to two—sixths, or one-third of the whole property. Scott et al. v. James et al. 307.

2. A deed of gift of negroes, from the husband to the wife, without the intervention of a trustee, upon an agreement to live separate, will be



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INDEX.


HUSBAND AND WIFE—continued.

no bar to an action at law by the husband for the recovery of the property. Tourney v. Sinclair, 324.

3. The husband is entitled to a vested legacy of the wife, although not reduced into possession during coverture, and the purchaser of the same from the husband will acquire a good title. Lowry v. Houston, 394.

4. An assignment of the wife’s choses in action by the husband during the lifetime of the wife, for a valuable consideration, has been repeatedly held to be valid. Ibid.

5. It seems that the husband is considered as the next of kin to his wife, by relation of marriage, and takes her property as such in case of death; but whether so considered or not, her personal property, remaining after death goes to her husband, either jure mariti, or as next of kin. Ibid.


I.

IMPROVEMENTS.

A contracted with B to purchase and improve lands, and it was stipulated, that if A did not see proper to buy said lands at a price to be agreed upon by the parties, then B was to pay so much for the improvements as two disinterested persons should say they were worth. The price could not be agreed on, and B refused to choose a person to value the improvements, but selected a person to survey the lands. A selected another person to survey and appraise. The two persons thus appointed surveyed and valued the improvements at 584 dollars. A brought an action of assumpsit on the agreement; and B demurred to the evidence. The jury in a conditional verdict, assessed the plaintiff’s damage at 636 dollars and 14 cents. The court overruled the demurrer and gave judgment for the plaintiff in the last mentioned sum.

By the court: B was bound to appoint a person to appraise the improvements. His acts amounted to a refusal to choose an appraiser, which authorised A to have the improvements valued. B could not defeat the contract by failing or refusing to choose a person to value. Every thing is to be taken most strongly against him on whom the obligation rests. A having done all in his power, the justice of the cause is manifestly with him, and for these reasons the judgment must be affirmed. Orne v. Sullivan, 161.


INDICTMENT.

1. An indictment will be bad, unless the name of the prosecutor is endorsed thereon. Cody v. The State, 27.

2. Where the indictment is endorsed a true bill, and returned by the authority of the whole grand jury, it is sufficient without the special appointment of a foreman. Friar v. The State, 422.



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INDICTMENT-continued.

3. The sheriff, as one of the officers of the court, is competent to serve the prisoner with a copy of the venire and indictment. Ibid.

4. A general verdict of guilty will be sustained, although all the counts of the indictment are bad but one. Ibid.

5. A special appointment of foreman is not necessary, when the record shows that the indictment was found and returned into court by the whole panel. Peter v. The State, 433.

6. The name of the prosecutor must be marked on the indictment. Ibid.

7. Where the appellate court reverses the judgment of the court below, for want of form in the indictment, the indictment will be considered sufficient prima facie evidence of guilt to remand the prisoner. Ibid.


INFANT.

1. Under the statutes of this state adults have five years allowed them after the probate of a will to contest it, and infants five years after they arrive at age. Scott v. Calvit. 148.

2. The statute makes the probate of a will conclusive evidence, and will not suffer it to be contested after five years, or in case of an infant after five years from the removal of his disability. Ibid.

3. When the validity of a will has been contested in the manner pointed out by the statute, the decree is absolute against all persons, infants as well as adults, although all those interested were not parties to the proceeding. Ibid.


INSTRUCTION TO THE JURY.

Where a charge asked for, is in part correct and partly erroneous, the court are not bound to separate it, but may refuse it altogether. Doe v. King’s Heirs, 125.


J.

JUDGMENT.

1. Where more than a year and a day has elapsed after rendition of a judgment, and no steps have been taken to enforce it, the judgment must be revived by scire facias; and an execution issued after the lapse of that period, without a revival of the judgment by scire facias, is irregular, and will be quashed on motion. Reeves v. Burnham, 1.

2. Judgments on forfeited forthcoming bonds are regarded in the same light as judgments obtained in the ordinary mode of proceeding. Ibid.

3. The 22d rule of this court provides that, "whenever a party shall rely on an excess in the calculation of interest or damages, upon a judgment, a true calculation shall be presented to the court, in writing and figures, with a certificate by some counsellor not interested in the cause, that the calculation is correct, and no such error will be noticed, unless so presented to the court." Gamble v. Trahen, 32.



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INDEX.


JUDGMENT-continued.

4. A judge cannot give judgment upon his private knowledge, but must render it according to law and evidence. Smith v. Moore, 40.

5. Where the judge of probate refused administration of an estate to the next of kin, on the ground of mania a potu, as a fact within the knowledge of the court: Held, to be irregular. The judge must be sworn as a witness as to facts within his own knowledge, Ibid.

6. The appeal bond must be in the name of all the parties against whom the judgment was rendered, if some of the parties will not join in the appeal any one who may desire a revision of the judgment, may proceed by summon and severance on his own case alone, and exempt himself from any eventual liability for the others. Green et al. v. The Planters’ Bank, 43.

7. A judgment by default on the special count, without a discontinuance on the money counts, is not error. Soria v. The Planters’ Bank, 46.

8. A judgment by default, writ of inquiry and verdict, without taking issue upon pleas pleaded, is irregular. Dickson v. Hoff’s Adm'r., 165.

9. The notes made by the judge on the docket are not part of the record nor evidence for any purpose and a judgment cannot be amended by them. Ibid.

10. The damages which are allowed upon protested inland bills of exchange are as fixed in amount, as much an incident to the debt and as readily calculated and assessed by the clerk as the interest, and it is the province of the clerk to assess them, without the intervention of a jury upon a judgment of nil dicit. In such a case a judgment by nil dicit is equivalent to a verdict, and finds all the facts to be true as stated in the declaration. Grigsby v. Ford et a1., 184.

11. The fact, that an inland bill was not protested at the place, where on its face, it was made payable, cannot be taken advantage or, after judgment by nil dicit. The defect is cured by the statute of jeofails. Ibid.

12. When the plaintiff takes judgment by default, for want of plea, the record must show there was no plea filed at the time of the rendition of the judgment. Irving et al. v. Montgomery, 191.

13. Where the judgment was for "five hundred dollars and fourteen cents, the amount of the promissory note in said plaintiff’s declaration mentioned with costs:" Held, although tbe judgment is not technically formal, yet it is substantially correct. Warbington v. Norris, 227.


JURISDICTION.

1. The court is bound to inquire in every case, whether the facts presented by the record give jurisdiction. Stamps v. Newton, 34.

2. On application for a change of venue in term time, an order of the court is necessary. The statement of the clerk, that the venue was changed, is insufficient, and will not give jurisdiction of the cause to the court to which the papers are transmitted. Saunders v. Morse, 101.



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JURISDICTION—continued.

3. The record must show a judgment a order to give jurisdiction to the appellate court. Rogers et al. v. M’Daniel, 172.

4. The constitution gives the probate court exclusive jurisdiction, in all matters, specifically set forth in the article from which it derives its powers. Carmichael et al. v. Browder 252.

5. It seems, however, if the court of probate be wholly incompetent to give relief, and the party has not, by his own laches, lost his remedy, it might be a proper case for the jurisdiction of a court of equity. Ibid.

6. Where distribution is claimed, a bond to refund must be tendered, before a breach of the administration bond can be charged upon the administrator. Ibid.

7. It seems, that the powers of the probate court, in matters committed to its jurisdiction, are coextensive with those of a court of equity. Ibid.

8. The question of the necessity and propriety of directing a special term of the circuit court, is a matter entirely within the discretion of the judge. No formal order is necessary by the statute. Friar v. The State, 422.

9. The twenty days notice by advertisement, required by the statute, is for the information of the public, but is not necessary to confer jurisdiction. In this respect the statute is merely directory. Ibid.


JUROR.

1. It will be presumed, that the court, entrusted with the duty of empannelling grand jurors, selected good and lawful men. The party may destroy this presumption by challenge and proof before the trial; but the question cannot be afterwards raised in another court. Cody v. The State, 27.

2. The record must show that the grand jurors were sworn. Ibid.

3. If the record show that one of the grand jury was sworn as foreman, it will be evidence of his appointment as such. Ibid.

4. It was held good ground for a new trial that one of the jurors, after he was summoned and before trial, declared that should he be of the jury, he did not think he could clear the accused, but would be bound to find him guilty. Ibid.


LIMITATIONS, STATUTE OF.

1. One heir may disseise his coheirs, and hold an adverse possession against them as well as a stranger; and, notwithstanding an entry as heir, the party may afterwards, by disseisin of his coheirs, acquire an exclusive possession, on which the statute of limitations will run. Iler v. Routh’s Heirs, 276.

2. Fraud, when relied on as an answer to the statute of limitations, cannot be presumed, but must be clearly proved. Ibid.

3. Where A, pretending to be the legal representative of B, sold the land of the ancestor, in violation of the rights of the heir, and twenty years elapsed after the heir became of age, before he commenced his suit in



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INDEX.


LIMITATIONS, STATUTE OF—continued.

equity for the recovery of the land, and the possession of the purchasers was accompanied with a multiplicity of acts demonstrative of a claim of exclusive ownership: Held, the right of the heir was clearly barred by the statute of limitations. Ibid.


M.

MONEY HAD AND RECEIVED.

An endorsement is in the nature of a new and distinct contract, and is an engagement to pay, to whoever may by subsequent negotiation become the holder of the bill or note, the amount secured by it; it may, therefore, be given in evidence on a count for money had and received. Pease v. Turner, 375.


MORTGAGE.

A general decree on the foreclosing of a mortgage, that the complainant have execution for any balance unsatisfied by the sale, is error; for which the decree will be reversed. The remedy for such balance is at law. Stark v. Mercer, 377.


MURDER.

1. If the time and place of the holding of the court appear in any part of the record, it will be sufficient. Loper v. The State, 429.

2. The whole of the record must be considered together, and that which is uncertain in any part, may be rendered clear by that which is certain in another part. Ibid.

3. A separate certificate of the clerk to each paper in the record is sufficient, and if such papers are styled "originals" by him, it will be regarded as a mere clerical mistake, which cannot change the character of the record. Ibid.

4. It seems that a prisoner who has applied for and obtained change of venue, will not be permitted to question the regularity of the procedings. And the presumption will be in favor of the regularity of the proceeding below, in absence of any proof to the contrary. Ibid.

5. If the prisoner go to trial without a copy of the indictment and venire having been served upon him two entire days before trial, he waives his privilege of such service. Ibid.


N.

NEW TRIAL.

1. Courts of justice have constantly refused to disturb judgments, by granting new trials, where the alleged injustice of the judgment is the result of the palpable inattention and negligence of the party or his counsel. Green v. Robinson, 105.
VOL. III.—39



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NEW TRIAL—continued.

2. Where the defendant, by the mistake of his attorney, files a wrong plea and one that did not cover his defence, and the attorney, although present, did not observe that the cause was on trial until after it had been submitted to the jury; but learning the papers in the cause were handed to the jury, moved to arrest the trial, but the motion being denied, moved again to withdraw the plea, and for leave to amend pleadings, which was also refused: Held, the proceedings did not constitute good grounds for granting a new trial. Ibid.

3. Where some of the witnesses stated, that the property destroyed was worth five dollars, others one hundred dollars, and others, that it was worth nothing; and the verdict was for the defendant; Held, to the jury exclusively belongs the province of weighing the testimony and pronouncing the result, and although it appears that the preponderance of testimony was in favor of the plaintiff, yet the appellate court will not, for that reason alone, award a new trial. Dickson v. Parker, 219.

4. Covenant for the false warranty in the sale at three negroes, one of whom was diseased with the small pox at the time of sale, and another was idiotic and unsound; with the third no fault was found. The price paid for the slaves was 2550 dollars; verdict for damages 2200 dollars: Held, it was unjust that the plaintiff should retain all the negroes, two of whom were valuable, and recover back so large a portion of the purchase money; a new trial awarded. Ingraham v. Russell, 304.

5. A mere affidavit of a third person, that the prosecutor had declared, that there was in existence a bill of sale of the property charged to be the subject of the larceny, which bill of sale went to establish title in the prisoner, not a sufficient round for a new trial, unless the affidavit be supported by the oath of the prisoner, alleging sufficient reason, why such bill of sale was not produced on trial, and an expectation, that it could be procured on a subsequent trial. Friar v. The State, 422.


NONSUIT.

1. A writ of error will not lie from a judgment on a vuluntary nonsuit. Ewing et al. v. Glidwell et al. 332.

2. In this state the courts do not possess the power to compel a party to a nonsuit. Ibid.


O.

ORPHANS' COURT LAW.

1. A motion in the circuit court, made in time, against an administrator to refund money, which has been paid as security for the intestate, and an appearance and resistance of the motion by the administmtor, is a sufficient presentation of the claim in compliance with the 115th section of the Orphans’ Court law. Smith v. Smith’s Adm’r, 216.

2. Judgment on a claim against an administrator in his representative



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ORPHANS’ COURT LAW—continued.

capacity, is sufficient authentication of suth claim within the meaning of the 90th section of the Orphans’ Court law. Ibid.

3. The 90th section of the orphans’ court law regulating the authentication of claims against the estates of deceased persons, was only designed to protect the administrator or executor against the consequences of wrongful payments which he may choose to make voluntarily; for if he discharges a debt without the voucher required by law, he does it at his own risk. Campbell v. Young et al., Ex’rs, 301.

4. The creditor’s right to sue for the recovery of his claim is not in any way affected by the statute. Ibid.


OYER.

Where a deed is mere inducement, profert need not be mndc; but if made, the adverse party is entitled to oyer. Bright v. Rowland, 398.


P.

PAROL EVIDENCE.

Where two negroes were sold for a certain price, and warranted sound in the bill of sale, in an action on the warranty, for the unsoundness of one of the negroes: Held, that parol proof might be introduced to prove the value of the unsound negro, as agreed on by the parties. Tutt’s Adm'r v. M’Leod et ux., 223.


PARTITION.

Where a co-heir claimed, in his bill, partition of real estate, and a distributive share of the personal estate of his ancestor, in possession of the administrator of the estate: Held, that the bill was bad for multifariousness, as demanding several matters of distinct natures. Carmichael v. Browder, 252.


PARTNERSHIP.

1. Where an individual is a common partner in two concerns no engagement entered into, or debt incurred by one with the other, can be enforced at law; resort must be had to a court of chancery. Calvit’s Ex’ors v. Markham et al. 313.

2. There is no necessity for an interlocutory decree to account, where the parties have made and agreed to a final settlement between themselves, unless there is a ground laid to surcharge and falsify the account. Ibid.

3. A general charge of error in an account is not sufficient; some particular error must be specified as a ground to surcharge and falsify. Ibid.

4. Where an agent was appointed by the parties to settle the accounts, and the settlement, although not final, was sufficient to establish the complainant's right to the sum sued for: Held, a final decree may be made,



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INDEX.


PARTNERSHIP—continued.

without taking an account between the parties, under an interlocutory order. Ibid.

5. Lands purchased by partners under an agreement that they shall be sold for the benefit of the partnership, will be regarded as joint stock, and will be likewise so considered, though there be no agreement, if there be such an application of them, to the purposes of the concern as evidences an original understanding of the parties, that the lands are to be treated as such, and not as estate in common. But where there is no such agreement, nor such an application of the lands as evinces the original understanding to have been that they were considered as joint stock, the wife of a deceased partner is entitled to dower in the lands. Wooldridge v. Wilkins, 360.


PLEADING.

1. By the statute of 1838, it not necessary to verify a plea in abatement by affidavit, when the abateable matter appears upon the face of the record. Lillard v. The Planters’ Bank, 78.

2. It is an established rule of pleading, that, if it appear on the pleadings of the plaintiff, that the party omitted is still living, and ought to be joined, the defendant may demur; but when the objection does not so appear, it can only be taken advtmtage of by plea in abatement, verified by affidavit. Ibid.

3. When the plaintiff takes judgment by default, for want of plea, the record must show there was no plea filed at the time of the rendition of the judgment. Irving et al. v. Montgomery, 191.

4. In an action on a sheriff’s bond for failure to pay over money, it is not necessary to aver in the declaration, that the chief justice of the county court had approved of the sureties and administered the oath, and if necessary, the omission can only be taken advantage of by demurrer, it being a defective statement of title, and not a defective title. The endorsement of the chief justice is merely evidence, that the law has been complied with. Carmichael v. The Governor et al., 236.

5. The declaration should aver, that the money mentioned in the breach of the bond assigned was collected by the sheriff, during his continuance in office and under legal process. Ibid.

6. Where a deed is mere inducement, profert need not be made; but if made, the adverse party is entitled to oyer. Bright v. Rowland, 398.

7. Where, by the terms of the covenant, money is to be paid and other things to be performed before conveyance, it is not necessary for the vendor to plead a tender of titles on his part; it will be sufficient if he aver readiness to perform. Ibid.


PLEADING TO EQUITY.

1. Where a demurrer to a bill was overruled and the bill subsequently



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PLEADING IN EQUITY—continued.

amended and new parties and new matters improperly joined: Held, the amended bill was demurrable. Scott, Adm'r, v. Calvit, 148.

2. According to the well established principles of pleading in chancery, the heir cannot join the administrator in an original bill for relief and for an account of personal estate, for the rents and profits of land, or for the recovery of land. Ibid.

3. Where a co—heir claimed, in his bill, partition of real estate, and a distributive share of the personal estate of his ancestor, in possession of the administrator of the estate: Held, that the bill was bad for multifariousness, as demanding several matters of distinct natures. Carmichael v. Browder, 252.

4. It is well settled, that a bill of review can only be granted after an enrollment of the decree for error, apparent on the face of the decree; or upon some new matter, proved to have been since discovered. The new matter must not only be relevant, but distinct, and such as could not, upon reasonable diligence, have been previously discovered. Iler v. Routh’s Heirs, 276.

5. A bill of review will not be sustained merely to accumulate testimony to prove a fact which has before been in issue. Ibid.

6. After issue directed, as to the question of heirship, and verdict had, a party will not be allowed a bill or review to obtain witnesses to add to and strengthen his former proof. Ibid.

7. But unless such bill be objected to below, it will be too late to raise the objection after an appeal. Ibid.

8. The chancellor may, whenever his mind is in doubt or uncertainty as to the preponderance of evidence, send an issue to the country; but he has a right, with certain exceptions, to take upon himself the decision of every fact in the cause. And where the chancellor directed an issue to the country, in a case where the preponderance of evidence was clearly on one side, it was determined error would not lie, inasmuch us it was entirely a matter of discretion with the chancellor. Ibid.


POSSESSION (ADVERSE.)

1. One heir may disseise his coheirs, and hold an adverse possession, against them as well as a stranger; and, notwithstanding an entry as heir, the party may afterwards, by disseisin of his coheirs, acquire an exclusive possession, on which the statute of limitations will run. Iler v. Routh’s Heirs, 276.

2. Fraud, when relied on as an answer to the statute of limitations, cannot be presumed, but must be clearly proved. Ibid.

3. Where A, pretending to be the legal representative of B, sold the land of the ancestor, in violation of the rights of the heir, and twenty years elapsed after the heir became of age, before he commenced his suit in equity for the recovery of the land, and the possession of the purchaser was accompanied with a multiplicity of acts demonstrative of a
39*



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POSSESSION (ADVERSE)—continued.

claim of exclusive ownership: Held, the right of the heir was clearly barred by the statute of limitations. Ibid.


PROBATE COURT.

1. The constitution gives the probate court exclusive jurisdiction, in all matters, specifically set forth in the article from which it derives its powers. Carmichael et al. v. Browder, 252.

2. It seems, however, if the court of probate be wholly incompetent to give relief and the party has not, by his own laches, lost his remedy, it might be a proper case for the jurisdiction of a court of equity. Ibid.

3. If profits, in the possession of an administrator de bonis non, be assets, he may be compelled to account for them by the probate court; if not assets, the remedy is at law. Ibid.

4. Where distribution is claimed, a bond to refund must be tendered, before a breach of the administration bond can be charged upon the administrator. Ibid.

5. It seems, that the powers of the probate court, in matters committed to its jurisdiction, are co-extensive with those of a court of equity. Ibid.

6. In proceedings in a probate court, objections must be taken to the pleadings before trial on the merits, or the appellate court will not inquire into their regularity. Wooldridge v. Wilkins, 360.


PROCESS.

1. It is immaterial whether the clerk subscribe his name to the process himself, or suffer another to do it for him, if it is issued with the clerk’s consent and approbation, it is sufficient. Gamble et al. v. Trahen, 32.

2. If the sheriff return a process endorsed with the word "Executed," to which he has signed his name, the court cannot quesition the legality of the service; but if the means of service are set forth, the court will judge of its legality. Smith v. Cohea, 35.

3. A return on a writ of "executed by leaving a copy at the boarding house of the defendant," is insufficient. Ibid.


PROMISSORY NOTE.
See BILLS 0F EXCHANGE AND PROMISSORY NOTE.

1. When it was pleaded in abatement, under the statute of 1837, requiring the drawers and endorsers of promissory notes and bills of exchange, if being and residing in this state, to be joined in the same action, that all the endorsers were not joined though living and resident in the state, and the plea was treated as a nullity for want of verification by affidavit: Held, the facts which constituted the gravamen of the plea did not appear upon the record. Lillard v. The Planter’s Bank, 78.

2. When some of the drawers or endorsers of a note, or bill, are not joined as defendants in a suit thereon, it is not necessary, under the statute of



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PROMISSORY NOTE—continued.

1837, that the plaintiffs should allege that such parties are dead, or do not reside in this state. Ibid.

3. Under the statute of this state, in actions on promissory notes, the party by pleading in chief, admits the execution of the note. Green v. Robinson, 105.

4. Where a promissory note, given to secure payment of the purchase money for land, was payable on a fixed day, and the payment was to be made before the deed to the land was to be executed: Held, the covenants were mutual and independent, and that an action would lie on the note before conveyance made. Leftwich et al. v. Coleman, 167.

5. It is well settled, that where a note or bill is payable to two, it must be endorsed by both in order to transfer the entire interest in it to the endorsee. A simple averment of a release of interest in such note by one of the payees, does not authorise the endorsee of the other to bring suit. Bennet et al. v. M’Gaughy, 192.

6. When notice of a protest of a promissory note is to be given to a member of congress, it must be sent to his place of residence, and if his residence is not known due diligence must be exercised to ascertain the same. Notice sent to Washington City, District of Columbia, when the party has a residence in the state which he represents, is not sufficient. Walker v. Tunstall, 209.

7. If a member of Congress had no fixed place of residence, but was known to be in Washington City, notice sent there would be sufficient. (Semble.) Ibid.

8. The endorsee on promissory note is entitled to file the same as an offset in a suit against him, by the payee and prior endorser to recover money due by the defendant on another claim. Pease v. Turner, 375.

9. An endorsement is in the nature of a new and distinct contract, and is an engagement to pay, to whoever may by subsequent negotiation become the holder of the bill or note, the amount secured by it; it may, therefore, be given in evidence on a count for money had and received. Ibid.

10. The act of 1837, which only changed the rule of pleading, does not affect the right of the endorsee of a promissory note to give it in offset to a suit by the endorser. Ibid.

11. Where two separate suits were brought against the drawer and endorser of a promissory into, and judgments had, and forthcoming bonds given in each case; the bond against the maker of the note having been given and forfeited prior to that against the security: Held, the forfeiture of the forthcoming bond against the maker of the note, did not operate as a satisfaction of the judgment against the security, in as much as the judgments were separate, and in separate suits. M’Nutt et al. v. Wilcox & Fearn, 417.

12. But it seems the rule is different when the judgment is joint, on a joint, or joint and several liability. Ibid.



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R.

RAIL ROAD.

1. Under that provision of the bill of rights which declares, that "no person’s property shall be taken or applied to public use without the consent of the legislature, and without a just compensation first made therefor," the compensation must precede the seizure of the property for public use. Thompson v. The Grand Gulf Railroad and Banking Company, 240.

2. That provision of the charter of the Grand Gulf Railroad and Banking Company which, in case the company cannot agree with the owners of land over which said road is to pass, upon the compensation to be paid therefor, authorises the company to petition to the circuit court of Claiborne county, to summon and empannel a jury to assess the damages, and directs the court, upon valuation assessed, to convey the land to the company, and give judgment and execution against the company, and in favor of the owner of the land, for the amount of the valuation, is unconstitutional. Judgment and execution is not compensation within the meaning of the constitution. Ibid.

3. This court has no power to render a different judgment from that directed by the legislature. The Court will declare the remedy provided insufficient, but will not undertake to give one that is sufficient. Ibid.

4. A proceeding by petition under the charter of the Grand Gulf Railroad and Banking Company, to assess the value of the land over which the road is to pass, and also assess the damages, so affects the interests of the owner as to make him a party to the proceedings. Ibid.


RENT, DISTRESS FOR.

Where the lessor distrains for rent under the statute, he must give bond and security as in other cases of attachment. A bond without security does not authorise the issuing of an attachment to distrain for rent. Cornell v. Rulon, 54.


REVIEW, BILL OF.

1. it is well settled, that a bill of review can only be granted after an enrolment of the decree for error, apparent on the face of the decree; or upon some new matter, proved to have been since discovered. The new matter must not only be relevant, but distinct, and such as could not, upon reasonable diligence, have been previously discovered. Iler v. Routh’s Heirs, 276.

2. A bill of review will not be sustained merely to accumulate testimony to prove a fact which has before been in issue. Ibid.

3. After an issue directed, as to the question of heirship, and verdict had, a party will not be allowed a bill of review to obtain witnesses to add to and strengthen his former proof. Ibid.



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REVIEW, BILL OF—continued.

4. But unless such bill be objected to below, it will be too late to raise the objection after an appeal. Ibid.

5. The chancellor may, whenever his mind is in doubt or uncertainty as to the preponderance of evidence, send an issue to the country; but he has a right, with certain exceptions, to take upon himself the decision of every fact in the cause. And where the chancellor directed an issue to the country, in a case where the preponderance of evidence was clearly on one side, it was determined error would not lie, inasmuch as it was entirely a matter of discretion with the chancellor. Ibid.

6. It is a settled rule that a bill of review can only be entertained for errors of law appearing in the body of the decree, or for new and material matter discovered after enrolment of the decree. Stark v. Mercer, 377.


S.

SCIRE FACIAS.

Where more than a year and a day has elapsed after rendition of a judgment, and no steps have been taken to enforce it, the judgment must be revived by scire facias; and an execution issued after the lapse of that period, without a revival of the judgment by scire facias, is irregular, and will be quashed on motion. Reeves v. Burnham, 1.


SETOFF.

1. The endorsee of a promissory note is entitled to file the same as an offset in a suit against him by the payee and prior endorser to recover money due by the defendant on another claim. Pease v. Turner, 375.

2. The act of 1837, which only changed the rule of pleading, does not affect the right of the endorsee of a promissory note to give it in offset to a suit by the endorser. Ibid.


SHERIFF.

1. If the sheriff return a process endorsed with the word "Executed," to which he has signed his name, the court cannot question the legality of the service; but if the means of service are set forth, the court will judge of its legality. Smith v. Cohea, 35.

2. A return on a writ of "executed by leaving a copy at the boarding house of the defendant," is insufficient. Ibid.

3. The sheriff cannot be called as a witness to impeach his own return. Doe ex dem, Van Campen v. Snyder, 66.

4. The return of the sheriff must show, within itself, that the writ was executed, a sufficient number of days before the return day, to entitle the plaintiff to his judgment. A judgment by default, in absence of such showing, is irregular. Calhoun v. Matlock, 70.

5. The statute makes it the duty of the officer to mark on the process the day it is received, and the time when executed. Ibid.



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SHERIFF—continued.

6. The attorney of record cannot move against the sheriff, in his own name, to pay over money for general balances due him as attorney by the client. Harney v. Demoss, 174.

7. In an action on a sheriff's bond for failure to pay over money, it is not necessary to aver in the declaration, that the chief justice of the county court had approved of the sureties and administered the oath, and if necessary, the omission can only be taken advantage of by demurrer, it being a defective statement of title, and not a defective title. The endorsement of the chief justice is merely evidence, that the law has been complied with. Carmichael v. The Governor et al. 236.

8. The declaration should aver, that the money mentioned in the breach of the bond assigned was collected by the sheriff, during his continuance in office and under legal process. Ibid.

9. Judgment against a sheriff on motion to pay over money, is not evidence in an action against the sureties on the sheriff's bond to establish the breach thereof, in failing to pay over the money. Ibid.


SLAVES.

The residuary legatee is entitled to make whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date of the will; therefore, where the testator made several specific bequests, and also manumitted several slaves contrary to law and the policy of the state: Held, the slaves should go to the residuary legatee, and not to the heirs at law. Vick’s Ex’or. v. M’Daniel et al., 337.


SPECIAL COURT.

1. The question of the necessity and propriety of directing a special term of the circuit court, is a matter entirely within the discretion of the judge. No formal order is necessary by the statute. Friar v. The State, 422.

2. The twenty days notice by advertisement, required by the statute, is for the information of the public, but is not necessary to confer jurisdiction. In this respect the statute is merely directory. Ibid.


T.

TRESPASS.

1. Where A, who had an insufficient fence, took up the mule of B, which was doing damage in his field, and tied the mule in his stable, and the mule in a struggle to escape, was choked to death: Held, A was liable in an action of trespass, which is the proper remedy in such case. Dickson v. Parker, 219.

2. Where cattle are found upon land doing an injury, the owner, under certain restrictions, is allowed to seize and distrain them, as a pledge for the payment of the damages; but this will not be permitted unless the owner of the cattle would be liable to an action. Ibid.



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V.

VARIANCE.

1. Where an action of tort is founded on a contract, a variance in proof from the contract alleged, will be as fatal as in an action on the contract itself; for the tort founded on the contract can not be the same, unless the contract be the same. Tutt’s Adm’r v. M’Leod and Wife, 223.

2. Where two negroes were sold for a certain price, and warranted sound in the bill of sale, in an action on the warranty, for the unsoundness of one of the negroes, Held, that parol proof might be introduced to prove the value of the unsound negro, as agreed on by the parties. Ibid.


VENDOR AND PURCHASERS.

A contracted with B to purchase and improve lands, and it wus stipulated, that if A did not see proper to buy said lands at a price to be agreed upon by the parties, then B was to pay so much for the improvements as two disinterested persons should say they were worth. The price could not be agreed on, and B refused to choose a person to value the improvements, but selected a person to survey the land. A selected another person to survey and appraiae. The two persons thus appointed surveyed and valued the improvements at 584 dollars. A brought an action of assumpsit on the agreement; and B demurred to the evidence. The jury in a conditional verdict, assessed the plaintiff’s damage at 636 dollars and 14 cents. The court overruled the demurrer and gave judgment for the plaintiff in the last mentioned sum.

By the court: B was bound to appoint a person to appraise the improvements. His acts amounted to a refusal to choose an appruiser, which authorised A to have the improvements valued. B could not defeat the contract by failing or refusing to choose a person to value. Every thing is to be taken most strongly against him on whom the ob1igation rests. A having done all in his power, the justice of the cause is manifestly with him, and for these reasons the judgment must be affirmed. Orne v. Suflivan, 161.


VENUE, CHANGE OF.

1. An order for a change of venue in vacation, must be under the hand and seal of the judge, to the clerk of the court in which the cause is pending, directing him to transmit the papers in the cause to the clerk of the court to which the venue is changed. Saunders et al. v. Morse, Adm’r, 101.

2. On application for a change of venue in term time, an order of the court is necessary. The statement of the clerk, that the venue was changed, is insufficient, and will not give jurisdiction of the cause to the court to which the papers are transmitted. Ibid.



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VERDICT.

1. By the assent of the parties, or the direction of the court, the jury may bring in a sealed verdict, deposit it with the clerk, and then separate before it is opened and read. Friar v. The State, 422.

2. The affidavit of a juror will not be received to impeach his verdict. Ibid.


W.

WARRANTY.

1. Where two negroes were sold for a certain price, and warranted sound in the bill of sale, in an action on the warranty, for the unsoundness of one of the negroes: Held, that parol proof might be introduced to prove the value of the unsound negro, as agreed on by the parties. Tutt’s Adm’r. v. M’Leod et ux., 223.

2. Covenant for the false warranty in the sale of three negroes, one of whom was diseased with the small pox at the time of sale, and another was idiotic and unsound; with the third no fault was found. The price paid for the slaves was 2550 dollars; verdict for damages 2200 dollars: Held, it was unjust that the plaintiff should retain all the negroes, two of whom were valuable, and recover back so large a portion of the purchase money; a new trial awarded. Ingraham v. Russel, 304.


WILL.

1. Under the statutes of this state adults have five years allowed them after the probate of a will to contest it, and infants five years after they arrive at age. Scott v. Calvit, 148.

2. The statute makes the probate of a will conclusive evidence, and will not suffer it to be contested after five years, or in case of an infant after five years from the removal of his disability. Ibid.

3. When the validity of a will has been contested in the manner pointed out by the statute, the decree is absolute against all persons, infants as well as adults, although all those interested were not parties to the proceeding. Ibid.

4. P. Pressler by his will directed that his property should be kept together in the hands of his executors, until his only daughter J. P. became of lawful age or married, then to be equally divided between his wife and daughter; but in case the daughter died without issue, then the will gave to the wife all the proporty, real and personal. Pressler died in 1824, and in 1826 Mrs. Pressler intermarried with one James, and the appellees are the only issue of that marriage. Miss Pressler died in 1832, at the age of fifteen. James died in l831, and in 1832 his widow married Scott one of the appellants. In 1834 Mrs. Scott died, leaving the appellant the survivor. The appellees sought a recovery of a portion of the property left by Pressler to their mothor; decree in their favor by the chancellor. By the Court:—The wife of the testator had a



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WILL—continued.

vested legacy in the property, and her second husband, James, acquired a right to it by marriage. James took possession of the property on his marriage with the widow, and claimed the same in virtue of the marriage: Held, to be a sufficient possession to vest the property in the husband, in as much as the property was by the will, to be kept together, until the daughter came of age or married. The appellants inherited from their father two-thirds of their mother’s half of Pressler's property, whioh was equal to two-sixths, or one-third of the whole property. Scott et al. v. James et al. 307.

5. The residuary legatee is entitled to take whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date of the will. Vick’s Ex'or. v. M'Daniel et al., 337.

6. Where the testator made severa1 specific bequests, and also manumitted several slaves contrary to law and the policy of the state: Held, the slaves should go to the residuary 1egatee, and not to the heirs at law. Ibid.


WITNESS.

The sheriff cannot be called as a witness to impeach his own return. Doe ex dem. Van Campen v. Snyder, 66.


WRIT, ENDORSEMENT ON.

1. The statute which requires the cause of action to be endorsed on the writ by the clerk or plaintiff’s attorney, only intended to give the defendant notice of the nature of the action. If the plaintiff states more in his endorsement than is necessary it will be treated as surplusage. Walker v. Tunstall, 259.

2. Where the endorsement on the writ stated correctly the amount of the note, time of payment, &c., but described it as payable at one bank when it was in fact payable at another: Held, the notice given of the cause of action was a sufficient compliance with the statute. Ibid.




END OF VOL. III.





VOL. III.—40