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INDEX

TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME.

ABATEMENT.

holder may maintain an action for $50, in
1. Where a party pleads in abatement, and af. a justices court, by relinquishing the sur-
ter the plea is overruled, he pleads to the plus. King v. Dougherty,

487
merits, he cannot insist on the same mat.9. A party cannot maintan an action for mo-
ter in arrest of judgement. Davis v. Dick. ney paid for another's use, by proof that he
inson, et al.

370 satisfied the judgment against him without
2. Nor can he assign for error the decision on his request or consent. Weakly v. Brahan
the plea in abatement. Wade v. Kelly A. f. Atwood,

500
Hutchinson,

443||10. And a request by one partner, after a disso.

lution of the firm, does not give a right of
ABSCONDING DEBTOR.

action against the firm, to one who has paid
See Attachment 1.

a firm debt on such request. Semble, Ibid.

11. It seems, however, that one who pays a
ACCEPTOR.

judgment against the defendant, without

his request, and takes a transfer of it, may
1. On a question whether a letter contains an maintain an action on it, in the name of
acceptance of an order, although it contain the plaintiff, for his use.

Ibid.
the words “ I shall accept," if from the 12. Where A. as principal, and B. &. C. as se-
whole letter it appear that no acceptance

curities, are indebted to D., and B. for a
was intended, it will be construed as a re valuable consideration received of A. pro-
fusal. Musgrove v. Hudson,

464 mises to pay the debt, and fails to do so, by

reason of which it is paid by C., C. may
ACTION,

maintain an action in A's name, for his use
1. An action at law lies to recover back mo.

against B. for the amount. Gee Adm'r v.
Nicholson,

512
ney paid on a parol purchase of land. Al-

See Discontinuance 4.
len v. Booker,

21
-2. And also to recover back the value of goods

See Partnership 1, 2, 3, 10.
so paid. Semble. Keath v. Patton, 38

ADMINISTRATOR.
3. A corporation created in another state may
maintain an action here. Lucas v. Bank

See Executors and Administrators.
of Georgia,

147
4. The bearer of a sealed instrument, made

AGENT.
payable to A. B. or bearer, and transferred
by delivery, cannot maintain an action on 1. A partner may appoint an agent to draw

it in his own name. Sayre v. Lucas, 259 bills, &c. in the name of the firm, and such
5. An action of debt on a guardian's bond power is not void, though made by one part.
must be in the name of the judge of the

ner only, and under seal. Lucus v. Bank
county court, for the use of the party in.

of Darien,
jured. Davis v. Dickson, et al. 370||2. But whether such power can extend to au-
6. And the bringing of the action is sufficient thorise the agent to enter an appearance in
evidence, that it is instituted at the request court for all the partners, querie?

Ibid.
of the party injured.

Ibid. 3. Where the party, with full knowledge of al.
7. An action lies against the obligor in a bond, leged fraudulent circumstances, recognises
given to answer a charge of being father

a contract made by an agent in his name, he
to a bastard, if the defendant fail to appear, cannot afterwards set up the fraud or want
though there has been no conviction against

of authority in that agent. McGowen v.
him. Lake f. Barron v. The Governor, 395 Garrard J. Morgan,

479
8. Where more than $50 is due on a note, the

280

AGREEMENT.

rendered against P. Grant & Conner v. Pettybone,

445 1. An agreement founded on a consideration 3. On appeals from justices courts, security für against public policy, whether for the whole

costs may be required of non-residents, as or in part only, is void. Carrington v. Cal.

in other cases. Thompsoa v. Miller, 470 ler,

1754. Justices have jurisdiction for the recovery of 2. And an association formed to buy and re- the value of specific articles bailed and not sell at a profit, the public lands at the go

re-delivered according to promise; and of vernment sales, and to prevent competition all demands in form ex contraetu. Spar is against public policy.

Ibid.

v. Boyd, 3. And a bond given to such association for 5. In cases of appeal, technical nicely and for

lands bought of them is void. Ibid. mal declarations are not required. bid. 4. When it is agreed that a deposition shall be 6. When parties go to trial on the merits in taken and read, it is admissible, though it

the appellate court, all irregularities in the appear by the deposition that the witness

justices return are waived. McGrew v. was interested. Stebbins v. Sutton, 249 Adams f. Elliott,

502 5. An ante-nupual agreement, by which the 7. Where on an appeal, issue is joined to the

husband relinquishes all right to the proper- country, though the sum in controversy be ty of the wife, and agrees that she shall en. under $20, the judgment will not be re. joy her separate property to her own use, versed, because the issue was tried by a jury does not bar the husband's right of courtesy. instead of the court.

Ibid. Rochon v. Lecatt,

429 8. And where the demand was under $20 See Contract.

when the warrant issued, but is increased

to more than that sum by interest during the AMENDMENTS AND JEOFAILS.

pendency of the appeal, the issue is proper. 1. A clerical mistake, apparent on the record ly triable by jury.

lbid. may be amended, on motion, by the court 9. In cases of appeal the court will not scruti.

below. Wade v kelly f- Hutchison, 443 nize the record as closely as in other cases; 2. And such misprisions may be corrected in therefore, where the declaration appeared this court, but at the cost of the plaintiff in to be as well against the security in the

Ibid.

appeal, as against the original debtor, af. 3. On an appeal, the judgment in the court be- ter verdict, both being in fact liable, the

low was against C. as security, when by the judgment will not be reversed for that cause. appeal bond it appeared that P. was the se

Ibid. curity; judgment reversed and rendered See forcible entry and detainer. against P. Grant f Conner v. Pettybone,

APPEARANCE.

1. A writ was issued against three defendants, ANSWER IN CHANCERY.

was served on two of them, and there was a See Chancery.

declaration and judgment against three; the APPEAL.

record reciting that the defendants, by

their attorney, waived their plea:" held 1. The supreme court has a general super- that this was the appearance of those only,

vising power over all inferior judicial tri- who were served with process. Williams bunals, which may be created, so as to pre- et al. v. Lewis,

41 vent the violation of a positive right. Bell2. Whether a partner can lawfully authorize et al. v. Payne F. Williams,

414 an agent to enter an appearance in court for 2. But the legislature may lawfully give power his copartner, quere? Lewis v. Bank of to commissioners to determine without ap. Darien,

200 peal, what persons are entitled to pre-emp

ARBITRAMENT AND AWARD. tions under the act of 1829.

Ibid.

See Award. APPEAL FROM JUSTICE OF PEACE.

ARREST OF JUDGMENT. 1. On an appeal from a justice, no exception 1. Where a demurrer to a plea in abatement

can be taken for the want of a seal to the has been sustained, and the defendant

warrant. Rutledge v. Rutledge, 400 pleads over, he cannot move in arrest of 2. On an appeal the judgment was against C. judgment for the same matter contained in

as security, when by the bond it appeared the plea. Davis v. Diron et al. 370 P. was the security: judgment reversed and/2. In the record there were three pleas which

error.

445

wcre demurred to, but no disposition of the (3. In a common count in assumpsit, the considemurrer; a trial on the merits and a mo deration of the assumpsit must be sufficient. tion in arrest of judgment: held that the ly specified to shew that the demand is on motion in arrest of judgment was an aban. simple contract. Maury v. Olive, 472 donment of the pleas.

Ibid.|4. The plaintiff declared in assumpsit, on a

note to be paid on the happening of a cerASSAULT AND BATTERY.

tain event, and averred that the event had See Costs, 6, 7.

happened, as appeared by endorsement on

the note: it was held that this was sufficient ASSETS.

to sustain a judgment by default final, for

the amount of the note. M'Gehee v. Chil. 1. A bond made payable to an administrator,as

dress,

506 such, is assets in the hands of an administra; 5. Suffering a judgment to be rendered by de. tor de bonis non. King v. Green et al. 133

fault is an admission of the plaintiff's cause ASSIGNMENT. of action as laid.

Ibid. 1. A debtor has a full right to prefer some cre

See Pleading III.-1. ditors to the exclusion of others, and may

Promissory Note, 2, 3. lawfully stipulate, that those who accept the

ATTACHMENT. property assigned shall release him, the contract being voluntary. Robinson v: Ra. 1. An affidavit that a party is about to remove pelye f. Smith.

86

himself out of the county of his residence, 2. A deed of assignment by a debtor, of all his

so that the ordinary process of law cannot effects for the benefit of all his creditors, is

be served on him, is not sufficient, to autho. not void on account of the debts and pro

rize an attachment to issue.

Wallis v. Murphy,

15 perty not being particularly described and specified.

Ibid.

2. A deed of assignment by a debtor of all 3. And such deed will be operative against an

his effects for the benefit of his creditors, attaching creditor here, though executed in

though made in New York, will prevail New York.

Ibid.

against a creditor here, who has subse. 4. The insolvency of the debtor does not vary

quently attached the effects assigned. Ro.

86 the above rules, there being here no bank.

binson v. Rapelye 8. Smith, Ibid.

3. A judgment on an original attachment is 5. A note under scal, payable to A. B. or bear.

prima facie evidence of a debt here, though er, is not assignable by delivery, so as to en.

personal service does not appear. Miller able the bearer to bring an action on il in

v. Pennington,

399 his own name. Sayre v. Lucas.

259
Bigger, administratrix. v. Hutchings to

415 6. A corporation may assign its effects to a

Smith, administrators, trustee, for the benefit of creditors. Pope 4. But such a judgment may be impeached by v. Brandon et al.

401

plea, shewing that the defendant constant. 7. And such assignment will be effectual a.

ly resided here, and had no notice of the suit.

Ibid. gainst a judgment creditor, though the charter provides that the stockholders shall

See Garnishee. be personally responsible for the debts of

ATTORNEY. the corporation.

Ibid. 8. The assignee of a bond transferred after 1. Where a suit is instituted by a corporation,

due, takes it subject to all equitable de can the authority of the attorney who insti. fences. Teague v. Russell d. Moore, 420 tutes it be inquired into-quere? Lucas v.

Bank of Georgia,

147 See Action, 9, 10, 11. “ Cotton Receipt, 1, 2.

2. And pleading the general issue to a decla. Executor and Administrator, 2.

ration wherein profert is made of the au

thority of the attorney, is a waiver of such ASSUMPSIT. right, if any exists.

Ibid.

3. Under some circumstances, the sickness and 1. In assumpsit, a judgment by default for inability of counsel to attend court may en.

costs only and no damages, is error. Pick title a party to relief in equity; but if there ens v. Hayden f Meriam,

are counsel in attendance, who are unpre. 2. Assumpsit lies to recover back money paid pared, a motion for a continuance, or a new

on a parol purchaseof land. Allen v. Boo. trial at law, is the proper remcdy. Nl'. ker, 21 Droom y. Sommerville et al.

513

rupt law.

10

33

AUTHENTICATION.

statute of 1824, requiring breaches to be
assigned.

Ibid.
1. In authenticating a record under the act of
Congress, it must appear that the judge who

BEARER.
certifies is the presiding magistrate of the
particular court or district. Johnson v. See Promissory Note 1.
Howe's administrators,

27

BEQUEST.
2. Also it must appear that the clork who cer.

See Will.
tifies was clerk at the date of his certifi.
cate.

Ibid.

BILL OF EXCEPTIONS.
3. A clerk may lawfully make a certifieate of 1. A bill of exceptions must be explicit in sta.
attestation of a record, though he be not

ting the necessary facts to shew the error,
within his county. Collier v. The State, 388

and the court will not intend that facts
AWARD.

were proven, other than those stated.
1. Awards are much favored, and the court Keath v. Patton,

will intend every thing which the record | 2. But the whole evidence need not be stated.
will warrant, to sustain a judgment render. Allen v. Booker,

21
ed on an award. Tankersley v. Richard.3. A bill of exceptions, signed by the judge
son,

130 who presided below, was presented: but tbe
2. And a judgment on an award will not be certified record containing another, which

set aside on account of the absence of a the judge stated to be the true one; the one
declaration.

Ibid. offered was rejected. Lecatt v. Strang, 230
BANK.

4. Where the court refuses to sign a bill of er.
1. A bank charter is a contract, and the grant

ceptions, and the party wishes to establish
cannot be altered or impaired by an after

the exceptions by proof, under the statute, it
statute without the consent of the bank.

must be done within the trial term; and on
The State v. The Tombeckbee Bank, 30

notice to the opposite party. Perkins 5.
2. When a bank charter contains no provision

llarper,

477
declaring a forfeiture on a failure to pay

BOND.
specie for its notes, such a failure is not a 1. A bond made payable to an administrator
forfeiture of the charter.

Ibid.

as such, is assets in the hands of an ad-
3. A bank incorporated in another State may

ministrator de bonis non: the description is
sue here. Lucas v. The Bank of Georgia,

not mere descriptio persone. King v.
1471
Green et al.

133
4. And a copy of its charter, and parol evi- ||2. The intermarriage of an administratris ob-
dence of its being in operation, will be suffi.

ligee with the obligor, does not extinguish
cient proof of its existence.

Ibid.

the debt, but only suspends the right of ac.
5. A bank is not affected with notice of disso.

tion during her administration and coveri.
lution of copartnership, by the fact that one

Ibid.
of the partners is a director of the bank. 3. A bond, given for lands bought of an asso-

Lucas v. The Bank of Darien, 280
6. Nor is notice dispensed with, because the

ciation formed to purchase lands at the pub-

lic land sales to resell them at profit and to
bank was established after the dissolution
of the copartnership.

Ibid.

prevent competition, is void. Carring.
ton v. Caller,

175
BASTARDY.

4. The bond required of the defendant under
1. The bond required to be given under the the bastardy act of 1811, is properly pays

act of 1811, by a defendant charged as fa ble to the governor. Lake of barres r.
ther of a bastard child, is properly payable The Governor,
to the Governor. Lake f. Barron v. The|5. An injunction bond, when forfeited, has on
Governor,

395 itself the force and effect of a judgment;
2. And on such bond the defendant is liable, yet a judgment on a sci. fa. on such bad

if he fail to appear, though there have been will not be reversed for error. Logg: t.
no conviction against him.

Ibid. Bandy,
3. And in an action on such a bond, which was 6. In the condition of an administration bood,

in the penalty of $2,000, the defendant by mistake it was written, that if "M. R."
failed to appear, and the court gave judg (who was the deceased,] should properly
ment for $500, without a jury: held that it administer, &c.; the mistake being app
was not crror.

Ibid. rent on the face of the bond, it was bed
4. A bond of this description is not within the that this did not vitiate, and that will pro

ure.

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