1. On an unsealed note: Under the new Constitution, and since the adoption
of the C. C. P., a civil action may be brought upon a note without seal,
and an allegation may be made that the note was intended to be under
seal, but that the seal was omitted by accident or mistake, and upon
sufficient proof the accident or mistake may be corrected and a recovery
had accordingly. McCown, Adm'r. v. Sims, 159.
2. Evidence of a seal: In an action involving the correctness of a mistake in
omitting to put a seal to a note, the circumstances that the note was
taken by way of accommodation, for another, to which the seal was at-
tached, that the words "witness my hand and seal" were in the note,
and that the parties were a sister and a brother of the half-blood living
in the same house on terms of the most intimate family relations, are
all admissible in evidence tending to prove that a seal was intended to
be put to the note, but was omitted by accident or mistake. Ibid.
3. Sheriff may maintain against bidder: A sheriff selling land under execution
may maintain an action in his name against the purchaser for the
amount bid, upon tendering a deed for the land sold. McKee v. Line-
berger, 217.
4. Sheriff's rights against purchaser, &c.: The relation of creditor and debtor
exist between the sheriff and such purchaser, by force of contract of sale,
and the sheriff is left to enforce his rights by the usual remedy of action,
unless he elects to rescind the contract of sale and sell the land again.
Ibid.
5. Not necessary to make return: Nor is it necessary to enable the sheriff to
bring such action, that he should first make a return of the sale on the
execution. Ibid.
6. Former suit, when a bar: A suit in our former Courts of Equity by A, the
equitable assignee of a bond against B, the assignor, to compel B to
allow the use of his name in a suit at law against D, the obligor in the
bond, which suit was dismissed, is no bar to a suit by A, the party in
interest, under the new system against D. Swepson v. Harvey, 387.
7. Same: Nor does the fact that after the equity suit was dismissed, D having
notice of the equitable assignment, paid off the bond to B, affect A's
right to recover. Ibid.
8. When not maintainable : The administrator of a deceased guardian cannot
maintain an action on the bond of a clerk and master for a fund alleged
to be due to the ward. Davis v. Fox, 435.
9. Possession, when necessary: An action for the recovery of the possession of
personal property, (in the nature of detinue under our old system,) will
not lie against one who was not in possession of the property at the time
the action was commenced. Haughton v. Newberry, 456.
10. What can be recovered under the general prayer for relief: Nor can a plain-
tiff in such action, under a general prayer for "other relief." recover the
judgment warranted by the facts proven. For although the names and
technical forms of actions are abolished by the Constitution, yet in the
very nature of things, there must be distinctions respect to the remedies
applicable to different cases. Ibid.
Petition to Rehear: The Supreme Court has no power to entertain a petition
to rehear a criminal action. It never passes judgment in such cases, but
only gives its opinion, and orders it to be certified to the Court below, to
be carried into effect by that Court. State v. Jones, 16.
1. Evidence ten ling to prove: If a manufacturing company knowingly per-
mits a person to sell goods in a store-house with their name over the
door, though in a town distant from their place of business, it is a cir-
cumstance which, taken with others, such as that he sold their manu-
factured articles, and bought bacon and other country produce for them,
must be considered as tending to prove the fact that he was acting as
their agent. Gilbraith & Co. v. Lineberger & Co., 145.
2. Acts of agents binding, when: When one permits another to hold himself
out to the public as his agent to sell and buy certain kinds of goods for
him, he is bound by the acts and contracts of such agent within the
scope of his authority, but that authority does not extend to the borrow-
ing of money or buying clothes for himself. Ibid.
3. Of a lunatic: A plaintiff who has indorsed the notes of a self-constituted
agent of a lunatic, to enable such agent to raise money ostensibly for the
benefit of the family of such lunatic, which money was used by the
agent in cultivating the farm of the lunatic, can only recover, in a suit
against the lunatic upon the notes signed by the agent, so much of his
debt as he can show was actually expended for the necessary support of
the lunatic, and such of his family as were properly chargeable upon
him. Surles v. Pipkin, 513.
1. Judgment to be discharged upon part payment: If upon confessing judg-
ment in a suit by a bank against one of its debtors, it be agreed and
entered upon the docket at the foot of the judgment, that it may be
discharged upon the payment of a certain per cent. of the amount in
United States currency, or the full amount in the notes of the bank, the
plaintiff will be bound by the agreement, and an execution issued for the
full amount in United States currency more than two years afterwards,
may be set aside. and the bankruptcy of the bank will not alter the
case. Hardy, Casher, v. Reynolds, 5.
2. Void: An agreement by a creditor to take from his debtor one-half of
the amount of his debt then due in discharge of the whole, is without
consideration and void, and this is so though the debtor is a surety, and
the debt is due by bond. Bryan v. Foy, 45.
3. Rights of sureties: Where, upon the purchase of a chattel personal, the
purchaser gave his note with sureties for the price, and it was agreed by
parol between the parties at the time that the chattel should belong to
the sureties until the note was paid: It was held, That the effect of the
agreement was to pass the title to the chattel from the seller to the
sureties, and not from the seller to the purchaser, and then from him to
his sureties for their indemnity, for in the latter case it would have been
a mortgage which would nave been void for want of registration.
Worthy et al. v. Cole et al., 157.
4. Between husband and wife, when valid: An agreement by the husband that
the wife shall receive the price for which land belonging to her, sold in
personal property, and hold the same to her separate use, to enable her
to purchase another tract of land with the same, is valid, such price not
vesting in the husband, jure maritii, so as to subject the same to the
claims of his creditors. Teague v. Downs, 280,
5. By Solicitor to discharge defendant: An agreement by a Solicitor for the
State, to discharge a defendant, if he would become a State's witness
against a co-defendant, which he did so far as to go before the grand jury
and be examined, and then left the Court, will not relieve such defendant
from a forfeited recognizance. A recognizance is a matter of record, and
can only be discharged by a record, or something of equal solemnity.
State v, Moody, 529.
1. Judge's right to allow: Pending a motion for final judgment, the Judge
below has a right to allow an amendment, striking out a demurrer which
had been adjudged during the same term to be frivolous, and the defen-
dants to answer, especially when satisfied that the demurrer was inter-
posed in good faith, and that the defendants had a valid prima facie de-
fence. Norwood v. Harris, 204.
2. Power of Courts to permit: As a general rule every Court has ample power
to permit amendments in the process and pleadings of any suit pending
before it; but the Courts have no such power, when an amendment pro-
posed to be made will evade or defeat the provisions of a statute. Cog-
dell, Assignee, v. Exum, 464.
1. Practice in; undertaking: Uron an appeal from a judgment of the Supe-
rior to the Supreme Court, the whole case is taken up to the latter Court,
whether the appellant give an undertaking with sufficient security (or
in lieu thereof make a deposit of money) to secure the amount of the
judgment, or to secure the costs, only as provided in sections 303 and 304
of the C. C. P., the right of the appellee to issue execution in case of the
undertaking being to secure the costs of the appeal only is given, instead
of the deposit of money to abide the event of the appeal. Bledsoe v.
Nixon et al., 81.
2. Same; new trial: When an appeal is taken from the Superior to the Su-
preme Court, a proceeling to obtain a new trial on account of newly-
discovered testimony cannot be instituted in the Superior Court, but
must be brought in the Supreme Court, and upon a proper case that
Court will remand the cause so that the Superior Court may take juris-
risdiction and proceed to do what may be right. But if the newly-dis-
covered testimony applies to only a part of the judgment, the Suprem●
Court will retain the cause and order proper issues to be made up upon
the alleged newly-discovered testimony and sent down for trial in the
Superior Courts, and will impose such terms upon the applicant for the
new trial as may be deemed proper. Ibid.
3. Power of Judge below to set aside judgment: When an appeal is taken from
the final judgment of the Superior to the Supreme Court, the whole case
is taken up to the latter Court, and if the judgment be affirmed, remains
there, so that the Judge of the Superior Court has no power to set aside
the judgment upon the ground of mistake, &c., under the 133d section of
the C. C. P. Isler v. Brown et al., 125.
4. Affidavit, when necessary: To enable insolvent defendants, convicted in
criminal actions to appeal from judgments of the Court below, it must
appear by affidavit that they are wholly unable to give security for the
costs, and that they are advised by counsel that they have reasonable
cause for the appeal prayed for, and that the application is in good faith.
State v. Dinine et al., 390.
5. Not effectual until entered on judgment docket: Until the entry on the judg-
ment docket by the clerk, no appeal from a judgment rendered in term
time is effectual, and such entry must be within ten days after the judg-
ment is rendered. Notice of such appeal may be given in a reasonable
time afterwards. Bryan v. Hubbs, 423,
6. Undertaking; notice: The undertakings necessary to perfect an appeal may
be given within a reasonable time after notice of the appeal has been
given. And after such appeal has been perfected, it is the duty of the
clerk to give notice thereof to the sheriff, in order that any execution
which may have issued may be superseded. Ibid.
SEE IN FORMA PAUPERIS; GROWING CROPS.
1. Awards, construction of, when set aside: Although arbitrations are favored
in law as being a court selected by the parties, and a cheap and speedy
method of settling difficulties; and although awards are to be liberally
construed so as to effect the intention of the arbitrators, without regard
to technicalities or refinement, yet it is well settled that where the arbi-
trators undertake to make the case turn upon matters of law, and mis-
take the law, their award is void. Leach v. Harris, 532.
2. Not bound to decide according to law: It is equally well settled that arbitra-
tors are not bound to decide a case "according to law," being a law unto
themselves, but may decide according to their notions of justice, and
without giving any reasons. Ibid.
3. Judgment on award: A suit is referred to A, whose award is to be a rule of
Court, and who reports to Fall Term, 1872, a balance due plaintiff;
neither party filling exceptions to the report, the plaintiff has a right to
Judgment at the term to which the report is made. And upon motion of
defendant, the cause being continued, at the ensuing term (still no ex-
ception being filled,) judgment being granted pursuant to award, his
Honor committed no error in refusing to set aside the judgment, because
the defendent filed an affidavit alleging that he had been misled as to
the scope and intent of the reference by the referee, and that he could
show certain facts in defense, &c. Reed v. Farmer, 539; Johnson v Farmer,
512.
SEE CRIMINAL PRACTICE, &c., 3, 11.
Burning a Mill-house in 1863: The Constitution does not repeal s ction 2. ch.
34, of the Revised Code; it repeals only so much of it as imposes death
as a punishment: Hence, one can be now indicted, convicted and punished
for burning a mill-house in 1863. State v. King, 419.
May sue in State Courts: An assignee in bankruptcy may sue or be sued in
Courts of the State, on claims for or against the estate of the bankrupt,
our Courts having concurrent juisdiction with the United States Courts
in the premises. Cogdell v. Exum, 464.
SEE ACTION, CIVIL, 6, 7; BANKRUPT. 2; DEED, 4; PAYMENT, 2.
Equitable, effect of: Where a suit is pending against A, and he, in consid
eration that the suit be dismissed, &c., agrees to pay one-half of the
claims in cash, and to pay 50 per cent. of his assets, or so much as may
be necessary, as they may be reasonably collected to discharge the bal-
ance of the claim, this is as between the parties, a valid equitable assign-
ment, and makes A trustee for his creditor to the extent of the agreement;
and when a second creditor of A afterwards brings suit and obtains a
judgment, and upon the return of an execution nulla bona, procures sup-
plemental proceedings to subject enough of the debt of a debtor of A to
satisfy his judgment, such second creditor only acquires a lien on the
debt owing to A, subject to the first creditor, and an account ought to be
taken. Questions which may arise after an account, reserved. Perry v.
Merchant's Bank of Newbern, 551.
Affidavit, when defective: An affidavit for a warrant of attachment, under
the C. C. P., sec. 201 (Battle's Revisal chap. 67, sec, 201) which states that
"the defendant is absent so that the ordinary process of law cannot be
served upon him," without an averment that the absence "was with in-
tent to defraud his creditors and to avoid the service of a summons," is
fatally defective. Love & Co. v. Young et al., 65.
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