ANSWER.

See PLEADING, 1 to 6, 8, 10, 12, 13, 14, 16, 17, 20, 21, 26, 28 to 35, 39, 40.

ANTENUPTIAL CONTRACTS.

See HUSBAND AND WIFE, 8.

APPEAL.

1. If a person apply for license to sell liquor under the present statute, and show himself to be within the class entitled thereto, and offer compliance with the law, and the county board refuse the license, he may appeal to the Circuit Court under the general statute.-Ex parte Dunn, 122.

2. But a remonstrant against the issuing of license to retail, cannot appeal from the decision of the county board as to the fitness of the applicant. The general act (1 R. S. p. 229) does not apply.-Drapert v. The State, 123.

3. Affidavit by A. alleging that on, &c., when he was about starting to remove from the state, a summons was served on him at the suit of B.; that he was informed at the time that only about 10 dollars was claimed (he does not state who informed him); that he owed B. a note of 10 dollars, and supposed it was that for which suit was brought; but having made arrangements to pay that, and knowing that he did not owe him any other sum, and it being some distance to the office of the justice, he continued on his journey, and remained out of the state for more than thirty days after judgment, which was for 99 dollars, 75 cents, and was not, during that time, aware of said judgment; that said judgment was wholly unjust; and therefore, &c.; whereupon A. moved that an appeal be authorized by the Common Pleas Court, &c., under the statute. Held, that no sufficient error is shown to authorize an appeal after thirty days.-Tucker v. Makepeace, 186.

4. Upon the dismissal of an appeal, the parties are out of Court; and the refiling of the record is the institution of a new suit, at least so far as to require that notice shall be given to the defendant.-The Board of Comm'rs, &c. v. Brown, 191.

5. A rehearing cannot be had upon an affidavit filed more than sixty days after the judgment.-Ibid.

6. Where the appellant submitted a cause in the Supreme Court without the appellee being in Court, and the cause proceeded to judgment before the error was discovered, the Court granted a rule upon the appellant, and ordered notice thereof, to show cause why the judgment should not be revoked, and the submission set aside.-Ibid.

7. The Court of Common Pleas has no authority to order a justice of the peace to grant an appeal from his judgment, after the expiration of the thirty days allowed by statute.-The State v. Kunbert, 374.

8. The statute in reference to filing a transcript of a justice of the peace, is merely directory as to the hand of the person by whom he shall lodge the transcript with the clerk.—Burgess v. Matlock et al., 475.

9. If an appellee join in error, and then add a paragraph alleging that the appeal was not taken within three years, &c., he waives his joinder.-Smith et al. v. Conlan, 513.

10. And it seems, that if the appellant submit the case, without a reply to such answer, he admits its truth.-Ibid.

APPEARANCE.

1. To constitute an appearance, there must be some formal entry, or plea, or motion, and this must be of record, and can be tried only by the record.-Scott et al. v. Hull et al., 136. 2. The appearance of defendants, a part of whom have not been served with process, at the taking of depositions to be used in the cause, was held not to be such an appearance as would defeat an application to remove the cause to the Circuit Court of the United States, under the act of congress of 1789.—Ibid.

See COSTS, 3; COURT OF CONCILIATION, 3; MARITIME LIENS, 4, 5.

ARBITRATION AND AWARD.

1. If either party to a submission to arbitration fail to perform the award, the other party has two remedies. He may have the award made a judgment of the Court designated in the agreement to submit, or he may have an action upon the arbitration bond.-Coats et al. v. Kiger, 179.

2. But neither of the remedies can accrue against a party who has not been served with a copy of the award.—Ibid.

3. Where parties agree to a common-law arbitration, without fixing the time and place of rendering the award, notice of the award must be given to both parties. This having been done, a suit may be brought upon the award in any Court having jurisdiction.-Francis v. Ames, 251.

4. Where parties agree to an arbitration under the statute, they must follow the statute, unless, in given particulars, they waive its requirements. The statute requires that a copy of the award shall be delivered to each party within a certain time. And where the agreement is that the award be made a rule of Court (naming the Court), as provided by the statute, it must be filed and enforced pursuant to the agreement.—Ibid.

5. Or a suit may be brought upon the bond of submission. This is a branch of the statutory remedy.-Ibid.

6. A suit pending may be referred to arbitration under a rule of Court; but as the statute makes no provision for this class of arbitrations, the proceedings must be regulated by the rule of reference, the agreement of the parties, or the common-law practice.—Ibid.

7. The three modes are cumulative remedies, and any of them may be adopted; but when adopted, it must be pursued unless a deviation be agreed to by both parties.-Ibid.

8. The award in this case (see the opinion) was not void for uncertainty.-Carson v. Earlywine, 256.

9. There was no submission of, nor award upon, the title to real estate. See the submission and award in the opinion.—Ibid.

10. At common law, where the matter submitted to arbitration involved a mere question of damages, the submission might be by parol, by a simple writing, or by deed.-Ibid.

11. In a common-law arbitration, the award may be valid though not attested by a witness, and though copies of it are not furnished to the parties by the arbitrators. Aliter, in case of a statutory award.-Ibid.

12. All objections that could be successfully urged, either at law or in chancery, against an award, may now be made in a suit upon it.-Ibid.

13. Mistake of law was not one of those objections.—Ibid.

If relied upon must be pleaded.]

See EVIDENCE, 2.

See JUDGMENT, 1.

ASSAULT AND BATTERY.

1. Suit for assault and battery. Demurrer to a paragraph of the complaint, assigning for
cause that it contained two causes of action, overruled. Held, that this was right: the ob-
jection should have been taken by motion to strike out.-Schlosser v. Fox, 365.

2. The defendant answered by general denial, and specially, son assault demesne. A demurrer
was sustained to the second paragraph. Held, that this was right, because it did not show
that the first assault alleged justified or excused the second, for which suit was brought.—
Ibid.

3. The defendant filed a third paragraph of his answer, setting forth that he had not been
cited before the Court of conciliation. Held, that this was no bar to the suit. It might
have been, for a motion upon taxation of costs.—Ibid.

4. On the trial, the defendant offered to prove, in mitigation of damages, that the plaintiff
had caused a prosecution for malicious mischief to be instituted (among others) against the
minor son of the defendant, and that he assaulted and beat him for so doing. He also
offered to give the record of such prosecution in evidence. He also offered to prove that
the plaintiff had, some two or three days before the commission of the assault and battery,
given defendant great provocations, without specifying particularly what they were. Held,
that if matter in mitigation can be given in evidence under the general denial, the above
items of evidence were rightly excluded-the first as being no matter of mitigation; the
second as being irrelevant; and the third as being too indefinite in the offer, and probably
of too long prior occurrence.-Ibid.

ASSAULT AND BATTERY WITH INTENT TO MURDER.
See INDICTMENT, 1.

ASSESSMENT OF DAMAGES.

See CITIES, 2; DAMAGES.

ASSIGNMENT.

A. deposited with B., a justice of the peace, certain claims for collection, and took a receipt
therefor, June 22, 1855. Afterwards B. collected 65 dollars on the claims. A. transferred
the receipt, by indorsement in writing, to C., February 14, 1856, of which the justice had
notice in that or the ensuing month. C. demanded the 65 dollars, April 2, 1856. Payment
refused. In the spring of 1855, A. held, as assignee, a note for 80 dollars which, for a full
consideration, he assigned to D. who assigned it to E. In the summer of 1855, A. ar-
ranged by parol that D. should receive from the justice, as much of the proceeds of the
claims as would pay him for the consideration of the assignment of the note by A., and in
March, 1856, the justice paid him the 65 dollars collected, and D. paid it to E. The as-
signee of the receipt, C., sued the justice for the refusal to pay the 65 dollars to him. Held,
that the indorsement on the receipt amounted to no more than an equitable assignment of
the claims, or the judgments when recovered, and the instrument not being assignable by
statute, the assignee took no greater interest than would have passed by mere delivery, with-
out indorsement; that, hence, the transaction was, in effect, but a parol, equitable assign-
ment, to which even the delivery of the receipt was not essential; that the arrangement
previously made with D. by which he received the money collected, was also a parol equita-
ble assignment, to the amount designated, differing from the one subsequently made to C.

only in the non-essential point of the delivery of the receipt; that the assignment to D. be-
ing prior in point of time, he was entitled to be first paid, notwithstanding the fact that the
subsequent assignee first notified the justice of his assignment.-White v. Wiley, 496.
See ASSIGNMENt for Benefit of Creditors; Contract, 3, 5, 6; CORPORATIONS, 11,
12; LEASE; PROMISSORY NOTES, 1, 6, 8.

ASSIGNMENT FOR BENEFIT OF CREDITORS.

1. A reservation of the surplus to an assignor, where it is made to depend upon certain con-
ditions to be complied with by the creditors, and particularly upon the condition of releas-
ing the debtor, will avoid the deed of assignment; but the creditor may be excluded from
the benefit of the fund, unless he abide the assignment and await the closing of it for any
balance that may be due him after the fund is exhausted, and the fund may be applied up-
on claims of other creditors, without rendering the deed fraudulent per se.-McFarland
et al. v. Birdsall et al., 126.

2. In the absence of the requirement of a release from the creditor, the mere hypothetical re-
servation of the surplus to the debtor will not vitiate the assignment.—Ibid.

3. Where the deed is legal on its face, evidence tending to show that the assignment was an
honest transaction is admissible.-Ibid.

See TAXES, 12.

ASSUMPSIT.

See ACTION, 1.

ATTACHMENT.

1. Attachment against a foreign corporation. Debtors of the corporation, residing in this
state, being garnished, they appeared and answered, admitting the indebtedness, without in
all cases specifying the nature of the evidence of the indebtedness, and in no case claiming
exemption from judgment on the ground that such evidence was paper governed by the law
merchant. Judgments were rendered against them. Subsequently, the corporation made
an assignment, and the assignees appeared in the attachment suit, and answered, setting up
the assignment, and claiming that the evidences of indebtedness against the garnishees had
passed to them, so as to make the garnishees debtors to the assignees; but they did not
show that those evidences were negotiable paper. Held, that their answer was bad, and
that the judgments were right.-Stetson et al. v. Cleneay et al., 453.

2. A sheriff or his deputy taking property in attachment, may keep it himself, and receive
the amount allowed by the Court therefor, or he may employ some one to keep it, pay him
therefor, and receive the amount, collected as part of the costs, unless he pay the keeper
more than the Court will allow.-Jones v. Thomas, 474.

3. The defendant in a proceeding in garnishment, may appeal, under the general statute, from
the judgment of a justice.-Burgess v. Matlock et al., 475.

4. An affidavit for an attachment in the words as affiant "verily believes," is sufficient.-Me-
Namara v. Ellis, 516.

5. Where the proceedings on an attachment do not show that the property was attached in
the presence of, nor that it was appraised by, a householder, an order for its sale will be re-
versed.-Ibid.

See COSTS, 5; MARITIME LIENS, 1, 2, 5, 6; PLEADING, 10.

ATTORNEYS.

Prosecuting and District distinct.] See OFFICE, &c., 10.

AUDITOR OF STATE.

See BANKS ANd Banking, 2, 3, 5; CLAIMS AGAINST THE STATE.

B.

BANKS AND BANKING.

1. The issuing of a note by a bank organized under the general banking law of 1852, and
the receiving of it by the holder as money, is, in effect, a contract between the holder and
the bank that the latter will pay it on demand; and upon the refusal of the bank to do so,
it may be sued by the holder.-Conwell, President, &c., v. Hill, 131.

2. Section 8 of that act confers no power upon the auditor-the trust funds having been ex-
hausted-to sue the bank for a balance due the note-holder.-Ibid.

3. The measures to be adopted by the auditor to prevent loss to note-holders, relate solely to
the management of the stocks transferred to him by the bank.-Ibid.

4. The note-holder may sue the bank without in the first instance filing certificates of protest
with the auditor-the stocks in the hands of the latter being merely collateral, security.—
Ibid.

5. There is nothing in the act requiring the auditor to delay the payment of such protested
notes until all the notes issued by the bank have been deposited in his office.-Ibid.

6. In a suit against the bank, upon failure to pay on demand, the notes, or a copy of them,
should be filed with the complaint; and the fact that they are deposited in the auditor's of-
fice, does not excuse a failure to file them or a copy.—Ibid.

7. It seems, that the filing of one note, or a copy of it, of each denomination, with an aver-
ment that there were other notes, enumerating them, of like denomination, would be
sufficient.-Ibid.

BASTARDY.

1. In a prosecution for bastardy, the credibility of the mother of the child is necessarily a
question for the jury, in weighing her testimony.-McCullough v. The State ex rel. Wilson,
391.

2. In a prosecution for bastardy, the jury may consider, in determining the credibility of the
relatrix, the youth of the defendant, and the testimony of the relatrix that he never had
connection with her but once, previous to which she had had no intimacy with him whatever,
and had not since intimated her condition to him, or asked reparation, except by instituting
the prosecution.-O'Brien v. The State ex rel. Swift, 469.

3. Where the child was born eight and a half months after the alleged single act of inter-
course, it was held that the defendant might prove that the mother had had sexual inter-
course with other persons within two weeks preceding and two weeks succeeding the alleged
date of her impregnation, and that such proof should be considered by the jury in connec-
tion with her credibility as a witness.-Ibid.

4. The mother of a bastard may settle and dismiss a bastardy suit brought on her relation.—
Baker v. Roberts, 552.

BENCH WARRANT.

See CRIMINAL LAW, 3.