See PLEADING, 12, ANCESTOR AND HEIR, 3.
ACQUIESCENCE AND WAVER.
1. Principles relating to, note 105.
2. Acquiescence in processioning of one's land, made without proprietor's consent, effect of it. 207, 220, 221, 222, Whiteside vs. Singleton.
1. Parties-lunatic. An action at law cannot be sustained against a per son in the character of guardian of a lunatic, without joining the non compos in the action as a party defendant. He must be a party plaintiff when suing, and a party defendant when sued. 2 Saund. 333; note 4. Rodgers vs. Ellison, 88.
2, Pleading, misjoinder of counts. If a count against a party as guardian of a lunatic be joined with one against him in his own right, it is a mis- joinder, and may be excepted to by demurrer, or in arrest of judgment. Ibid, 90, 91.
3, For what maintainable. Judgments and decrees. Judgment of sister States. Pleas to. The general language in Mills vs. Duryee, 7 Cranch, 481, and Hampton vs. McConnell, 3 Wheaton, 234,-"that whatever pleas would be good to a suit brought upon a judgment in the state where it was originally rendered, and none other can be pleaded in any other court in the United States"—is to be understood of pleas affecting the validity and conclusive effect of judgments as evidence,-not of pleas affecting only the remedy. Estes vs. Kyle, 94, 41, 43.
ADMINISTRATORS.
See EXECUTORS AND ADMINISTRATORS.
1. General and special authority. A general agent has authority, not un-
AGENT AND PRINCIPLE-Continued.
qualified, but to act for his constituent in a multitude of instances. particular agent's authority is confined to a particular instance, 15 East, 408. Walker vs. Skipwith, 502, 507, 508.
2. Obligation of principal to third persons on contracts, or for act of agent. The contracts and acts of a general agent within the scope of his authority, will bind the principal, though the agent has secret instruc- tion limiting his power as to such contracts or acts specifically. Ibid. 508, 509.
ALIMONY.
Chunn vs. Chunn, 131.
See CHANCERY.
Justices' record-entry of appeal The justice's omission to enter, and his mistake in entering-3 Yerger, 311-a party's prayer for, and the grant of appeal, may, ou motion in the circuit court, be amended by the jus tice, by supplying or correcting the omitted or mistaken entry, by means of the recitals in the appeal bond. But the recitals, per se, cannot be taken by the court above, instead of the entry. Cooley vs. Julin, 5 Yerger, 439. These amendments are within the spirit and meaning, though not within the words of the act of 1821. c. 2!, § 1. Lawler vs. Howard, 15, 16.
AUCILLARY JURISDICTION. See CHANCERY.12, 13, 14, 37. ANCESTOR AND HEIR.
1. Heir's liability on ancestor's covenant of warranty is joint. All the heirs constitute bnt one representative of the ancestor; and their liability upon his covenant of warranty is in its nature joint, and is not made several also by the act of 1789, c. 57. House vs. Mitchell, 188, 140, 141. Harrison's Digest, 1018.
2. Process against heirs. In an action against heirs on their ancestor's cov enant of warranty, the original writ must be sued out against all; and if served on some, and returned non est inventus as to others, the plaintiff must sue an alias and pluries against those not served before he can de- clare against those served. Ibid. 140.
S. Pleading, abatement-heirs must be joined. In an action against heirs on their ancestor's covenant of warranty, if the defendants plead that there are others not sued,-a replication, that those not sued reside beyond the jurisdiction of the court, and that those sued are the only heirs who have any thing by descent, is bad upon general demurrer. Ibid. 140, 141.
4. Descent-ancestor's seizin. The ancestor's "right, title or interest" in land pass to his heirs, whether he was seized or not in his life time. Guron vs. Burton, 565, 570, 572.
Damages on affirmance in. A justice is an inferior jurisdiction in the sense of the act of 1823, c. 54, § 3, authorising judgment on affirmance for 124 per cent. per annum, in addition to the judgment of the inferior jurisdic- tion. Union Bank vs. Lowe, 225, 229, 231.
2. Surety for. Judgment against, erroneous when, Ibid. 231.
3. Sureties for successive appeals, not co-sureties, Cowan vs. Duncan, 470,
ARBITRATION. Submission, effect on claims of parties. A submission to referees to value realty, which the parties had verbally agreed to give and take in pay- ment of a debt at the valuation of the referees, and a valuation in writ- ing and under the seal of the referees will not take the case out of the statute of frauds. Rice vs. Rawlings, 496, 499, 502.
ASSIGNMENT IN TRUST FOR CREDITORS.
1. Reservations of property by note to cover excess of property over debts secured. If an assigning debtor make his note, at the time of the as- signment, to the creditor, not to secure a debt then due, or advance then made; but in consideration of the creditor's verbal promise to allow him a further credit to support his family, or carry on his business, and such note purport to be secured by the assignment amongst the real debts mentioned in it,—the deed will be set aside at the suit of a judg- ment creditor of the assignor, as fraudulent and void. Peacock vs. Tompkins, 317, 328, 331.
2. Annulled for constructive fraud, how assignee to account. If an assign- ment embrace some effects which are liable to execution at law, and some that are not, and it be set aside for constructive fraud at the suit of a judgment creditor of the assignor, the assignee will account. To the judgment creditor-
1. For such effects, as existing in specie, when the fi. fa. was issued, would, in the absence of the assignment, have been subject to its lien. 2. For the proceeds of such effects.
To all the creditors parties in the suit-
3. For all effects in his hands not subject to execution at law, as choses in action, money, stock, &c.
He will be allowed to retain so much of the proceeds of the debtor's effects converted into cash, as will pay his own debts if a cre- ditor; and he will also be allowed a credit for any bona fide debt of the assigning debtor paid by him as assignee or trustee before the com- plainant's lien attached: as also for all reasonable charges and commis sions for care, and sale of effects, and collections. Ibid. 329, 331. 3. Distinction between assignment and absolute sale of consumable articles. An assignment of articles consumable in the using, to secure the pay- ment of a debt, is fraudulent, per se, if the deed stipulate that the debtor shall retain the possession and use of them. But a reservation by the vendor, with the purchaser's consent, of the possession and use of arti- cles absolutely sold, though they are consumable in the using, is only a badge of fraud. 3 Yerger 502; 4 Id. 541; 8 Id. 419. Richmond vs. Crudup, 581, 584.
ATTORNMENT.
See LANDLORD AND TENANT.
AUTHENTICATION OF STATE RECORDS.
Constitution of U. S. art. 4, § 1, and act of Congress, 1790, c. 11-1 Story's Laws, 93; Gordon's Digest, art. 638,-as to mode of authenticating records of the States, and the faith and credit to be given them, as to defences to suits on, considered. Estes vs. Kyle, 34, 41, 43.
1, Slave. What disposition of a father to a child is a bailment or a gift within the North Carolina act of 1806, Rev. c. 701, McKisick vs. Me Kisick, 427. See SLAVE. GIFT.
Same. Hirer's responsibility—changing service. A hirer of a slave for a specific purpose is responsible for all damages arising from employing the slave in a different service; as he is also, for a loss occurring while the slave is so employed, though the proximate cause of such loss was inevitable casualty. Angus vs. Dickerson, 459, 466, 470.
3, Same, same, conversion. It is a fraud upon the rights of the owner, and a conversion, to put a slave to a service entirely different from that for which he was hired. Story, Bailments, § 413. Ibid. 469.
4, Same-general hiring. In case of a general hiring, the hirer is only res- ponsible for ordinary neglect. Ibid. 469.
1, Jurisdiction-filiation. Questions of filiation are not jury causes, and the jurisdiction of them is, therefore, not taken from the county court by the act of 1835, c. 6, §, 3, and c. 5, § 7. Kirkpatrick vs. The State, 124, 126. 2, Same. Power of the court. But it seems that the county court, if they saw fit, might have had the aid of a jury to try the issue, without such proceeding constituting an error for which the supreme court would reverse. Ibid. 126.
3, Same. The issue is to the court. Goddard vs. The State, 2 Yerger, 96, approved. It decided that the act of 1822, c. 29, meant to confer on the county court, without a jury, the power "to hear the proof and determine the matter," involved in the issue in bastardy causes; and meaning that, it was nevertheless constitutional. The State vs. Coat- ney, 8 Yerger, 210, is not inconsistent with that decision. Ibid. 124, 126.' 4, Descent of their estates, and of parent's to them. See note to Guion vs. Burton, 573.
5, Whether the father of one legitimated by a private law, is his heir? Ibid.
1 Defective statement of evidence. If it does not appear in the bill of ex- ceptions, that all the evidence submitted to the jury is stated therein, the court of errors will presume that there was evidence to justify the ver dict of the jury. This presumption will not be made if the bill state that it contains all the material evidence. Trott vs. West, 153, 169. See EVIDENCE,
2. Judgment-presumption in favor of how removed. The judgment of an inferior jurisdiction will not be reversed because the record does not show the evidence upon which it was founded. It will be presumed that there was sufficient evidence to support it. The want of evidence to sustain the judgment must be shown by bill of exceptions. Union Bank vs. Lowe, 225, 229, 231.
3. A Note, though filed by the justice, is not part of the record of the court above, till made so by bill of exceptions. Ibid. 229.
4. "Note, promissory note"-in bills of exceptions, means an unsealed secu- rity. Craighead vs. The Bank, 199,
BILLS OF EXCHANGE AND PROMISSORY NOTE. 1. Notice of dishonor.
Ignorance of place of residence. Though the holder of a negotiable security know the residence of the endorser, yet he may not know the post office nearest thereto; and in such case, notice of the protest directed to the post office, which, after diligent in- quiry, is supposed to be nearest, will bind the endorser. Marsh vs. Barr, 68, 71.
2. What is diligent enquiry? Enquiry made of such persons where the
BILLS OF EXCHANGE AND PROMISSORY NOTES-Continued. security is made payable, as may reasonably be supposed capable of giving the desired information, is diligent enquiry in legal contempla- tion. Ibid. 70, 71.
2. Cases upon this subject approved. lap vs. Thompson, 5 Yerger, 67;
Davis vs. Williams, Peck. 191; Dun- Nichol vs. Bate, 7 Yerger, 305. Ibid.
4. Defence to action on. Fraud. Want, or insufficiency of consideration. Injunction. Collection of one given to a machinist for a worthless machine, whether he knew its quality or not, will be restrained by injunction. But not in the hands of a bona fide assignee. Donelson vs. Young, 156, 157. So if obtained by fraud or deceit. Note 158, Ibid. Chitty on Bills, 119, 8th Am. Ed. But collection of one given for price of land will not be enjoined at the suit of the purchaser who has not been disturbed in the possession, though the vendor had no title, or his title was incumbered. Meadows vs. Hopkins, 181, 183, 5. Sued on before a justice, how made part of the record of the circuit court on appeal from that to the supreme court. If a note be sued on before a justice of the peace, and be sent to the circuit court by him on appeal from his judgment, with the other papers in the cause, and an appeal taken from the circuit to the supreme court, the note is not part of the record of the circuit court, unless made so by bill of exceptions. Union Bank vs. Lowe, 225, 229.
6. Indorsers, contract between for one to take the shoes of another. The force of an undertaking by one indorser "to take the shoes of the other as regards the endorsement," for a certain sum, is not to pay that sum in discharge of the liability, but to be liable instead of the party whose place is assumed. Nashville Bank vs. Grundy & Hays, 256, 260, 261.
1. Indemnity bond, injunction against. Equity will enjoin the enforcing of a bond of indemnity unless the demand against which it was given has been or is about to be enforced. Molloy vs. Elam, 590, 594, 595. 2. Same-assets or not. Ibid. See Executor and Administrator, 3, 4. 3. Same devastavit or not to compound. Ibid.
See EXECUTOR AND ADMINISTRATOR, 3, 4.
4, Bond for title-assigned. If a title bond be assigned by the obligee, and the assignee sue the obligor in equity for a specific performance, making the obligee a party, the obligor cannot resist a decree on the ground that no consideration passed for the assignment,-the bill being taken for confessed as to the obligee. Koen vs. White's Heirs, 358, 361, 363. 5. Appeal Bond. Recitals in the bond given for the prosecution of an ap- peal from a justice, will suffice to amend the justice's record by, if he omit to enter the prayer and grant of appeal. Lawler vs. Howard, 15, 16. See AMENDMENT.
5. Delivery Bond. Liability of obligor, breach by legal constraint. obligor cannot be held responsible for a breach of the condition of his bond, caused by legal constraint.
7. Same. Apportionment of damages on breach of. Under the act of 1831, c. 25, which embraces delivery bonds taken after its passage, though founded upon executions issued before, if several writs of fi. fa. be lev- ied on the same property, the obligors in a bond executed to the plaintiffs in one of them, conditioned to deliver the whole property, will be bound to deliver only so much of it as will be of value sufficient to satisfy the pro- portion of the execution of the obligees, to which they would be enti-
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