ABATEMENT.

See PLEADING, 29, 43, 54.

ACTION.

may be amended on the trial; and the
amendment will, in the Supreme Court,
be deemed to have been made.-Case v.
Wandel,
459

APPEAL.

Costs on Appeal from Justice. See COSTS, 3.

1.

2.

The general statute upon the subject of
appeals was enacted in view of ordinary
civil proceedings, and does not embrace
proceedings under special acts; and hence
no appeal will lie from the decision of the
county board on a petition for the forma-
tion of a new county.-Allen et al. v. Hos-
tetter et al.,
15
Section 59 of the Justices' Act, which
provides that no appeal shall lie from a
judgment by confession, has reference only
to such judgments as are confessed in
accordance with the provisions of that sec-
tion, and does not include judgments ren-
dered under § 48, "as confessed," for a
failure of the defendant to appear and tes-
tify.—Mariner v. Hanna,

23

judgment in favor of the Bougher et al. v. Scobey et al., 6. A temporary injunction was granted in vacation by a judge of the Circuit Court, without notice to the defendants. At the next term of the Court, the defendants 3. appeared and filed a demurrer to the petition; and pending the demurrer, prayed an appeal to the Supreme Court from the order made in vacation. Held, that the appeal was authorized by the statute.Flagg et al. v. Sloan,

432

7. Quare: Whether an appeal will lie from Ibid. a restraining order. 8. Suit upon a bond executed to procure an appeal to the Supreme Court from a judgment requiring one A., president, &c., to transfer certain bank stock to the plaintiff within sixty days, or, in default, to pay him $200, the value thereof. The case was not decided in the appellate Court until after the expiration of the time named, but within sixty days after an opinion affirming the judgment was certified to the lower Court, A. made and tendered a certificate of stock, as required by the judgment. Held, that the tender of the certificate of stock, not having been made within the time limited, was no answer to an action upon the bond.-Ross et al. v. Swiggett, 9. An appeal will not lie to the Supreme Court from the action of the Court, or judge, below, in granting a temporary restraining order.-Cincinnati, &c. Railroad Co. v. Huncheon,

APPRAISEMENT.

433

436

4.

Ibid.

If such an award is void for a non-compliance with the statute, no action can be maintained upon it as a common law award; the only remedy, in such case, being that provided by the agreement of the parties, in pursuance of the statute. Ibid.

A. executed to B. his two promissory notes, "bearing ten per cent. interest yearly from date." After the death of A., his executors and the payee of the notes called upon two persons to compute the amount then due upon the notes; and the supposed balance having been ascertained, a part of the amount was paid by the executors, and a note executed by them for the residue. Suit by the executors alleging a mistake in the computation, and to recover an excess alleged to have been paid by them over the sum actually due. Held, that as the parties called upon to make the computation of interest acted merely as clerks, and not as arbitrators, the parties were not bound by their conclusion, but upon the discovery of the error were remitted to their original rights. Grimes v. Blake, Executor, &c. 160

4. Where an issue is formed on an affidavit
for attachment, it should be tried by the
Court, or jury, with the issues in the cause
in which the attachment issued. Ibid.

5. Where an affidavit for an attachment is

not controverted, it is too late, after the
trial of the issue in the principal cause,
for the defendant to object that facts do
not exist authorizing the attachment.

Ibid.
6. Whether the property has been duly
attached and appraised, are questions for
the decision of the Court, in determining
whether an ordinary judgment only should
be rendered for the plaintiff, or whether
the attached property should be ordered
to be sold.
Ibid.

9. In an attachment proceeding under the
code, notice by publication of the pend-
ency of the suit may be given before the
writ is levied.

Ibid.

10. In a suit by the assignee of a promissory
note against the maker, a judgment re-
covered against the maker as garnishee,
in an attachment proceeding against the
payce, or any prior holder of the note, may
be pleaded in bar of the suit, if the judg-
ment was rendered before the maker had
notice of the assignment.
Shetler v.
Thomas,
223

11.

-

Where the plaintiff sues for the price of
supplies by way of attachment against the
boat, to enforce a special lien, he must
prove that there was at least an apparent
necessity for their procurement by the
master; and no reason appears to the
Court why the rule should not be the
same in a suit against the owners person-
ally, but this last point is not decided.-
Holcroft et al. v. Halbert,

ATTORNEY.

256

What services embraced in employment of.
See CONTRACT, 2.

1.

2.

3.

m

reasonable demand, to an accounting, and
may maintain an action for a refusal to
account.
Ibid.

4. On the calling of the cause for trial, the
defendant presented an affidavit showing
that one F, who was preparing to assist
in the prosecution, had been employed by
him to make his defense, and that he had
disclosed to said attorney the facts in the
case, and the evidence for his defense, and
moved the Court to refuse the said F. leave
to assist in the prosecution. Held, that
the attorney should not have been per-
mitted to take part in the prosecution;
that to sanction such a course would be
to defeat the very purpose for which Courts
were organized, viz., the administration of
justice.-Wilson v. The State,
392

2. A. having a judgment against a bank,
organized under the general law of the
State, in which he was also a stockholder,
and as such liable to the creditors of the
bank to an amount equal to his stock,
agreed that such amount should be applied
to the satisfaction of his judgment; and,
on motion of the bank, satisfaction was
accordingly entered. Held, that A. would
be liable to creditors of the bank to the
amount of his stock, notwithstanding he
might have credited that amount on his
judgment, and hence there was no consid-
eration for his agreement, and satisfaction
should not have been entered.-- Gentry v.
Alexander, President, &c.,
471

BANK NOTES, REDEMPTION OF.
1. Suit against the bank upon certain of
her circulating notes,.alleged to have been
duly presented for payment. Answer:
that defendant was ready and willing to
redeem said notes, and had offered and
tendered to plaintiff the amount of each
of said notes, in the current silver coin
of the United States, which he refused,
&c. Held, that the United States silver
dollar, and the halves, quarters, dimes
and half dimes coined prior to June 1,
1853, are a legal tender for their nominal
value upon debts of any amount; that
the halves, quarters, dimes and half dimes,
coined since June 1, 1853, are not a legal
tender for debts exceeding five dollars;
and that the three cent pieces, though
recognized as "silver coins," are not a
legal tender for debts exceeding thirty
cents.-The Bank of the State v. Lock-
wood,
306

2. Held, also, that as a tender of payment
in three cent pieces would have been a
tender "in the current silver coin of the
United States," the answer was bad. Ibid.