ERROR, WRIT OF-CONTINUed.
ed; but where the cause is also tried upon the general issue, and the party
complaining may have had every advantage under it, which he could have
had if the appropriate issue had been joined, upon the special plea, and
there is nothing in the record to indicate that he was prejudiced, an appel-
late court will not reverse the judgment, that another trial may be had.
Shippey and another v. Eastwood,
198
8. When a matter is properly submitted to a jury, by the Orphans' Court,
and its decision is adopted by the court, it cannot be reviewed in this court.
Willis' Adm'r v. The Heirs of Willis,
330
9. Where, upsn a motion to enter satisfaction of a judgment, the record and
decree in a Chancery cause, between the same parties, was offered in ev-
idence by the defendant, as an answer to the motion, and the court decid-
ed, that the precise point then before it, was decided in that suit, and was
a bar to that motion, this court cannot review the decision, unless the pro-
ceedings in the Chancery cause are before it. It will make no difference
that the court had previously committed an error, which would have been
sufficient to reverse the cause. The error was immaterial, if the court
was correct in the effect it ascribed to the decree in Chancery, and it de-
volved on the party complaining of it, to show affirmatively that the court
erred. Lyon v. Krebs,
10. Where a paper is sent up with the transcript which is not necessarily a
part of the record, it will not be noticed by an appellate court, unless it
appears to have been made such, or at least to have been acted on by the
court below. Landreth's Adm'r v. Landreth's Distributees,
430
11. A surety to a writ of error bond, must be a resident citizen of the State
Snedicor v. Barnett,
434
12. The objection cannot be made in this court for the first time, that a re-
lease of errors, which the Chancellor required, was not executed, or that
a record made an exhibit to the bill, was not appended to the bill. If the
objection is not made in the court below, it will be considered as waived.
Adm'r of Reynolds v. Pharr and Beck,
13. When the error of a charge is made to appear, the judgment must be re-
versed, unless it clearly appears from other parts of the record, that no in-
jury has resulted from the error; and the fact that the jury has returned a
verdict for the entire sum sued for, is not sufficient to prevent a reversal,
although that verdict would be correct only in the event they found on a
point in the cause with which the erroneous charge was not connected
Hagerthy v. Bradford,
567
14. A rule for an attachment against a party, or a witness, is a proceeding
collateral to the cause, and if the granting or setting it aside is not a mat-
ter within the discretion of the primary court, an error in respect to it, must
in general be corrected by a mandamus, or other appropriate remedy, in-
ERROR, WRIT OF-CONTINued.
stead of a direct proceeding which impugns the judgment in the cause.
Hogan, &c. v. Alston,
627
15. A writ of error which is sued out to revise a decree of the Orphans' Court,
by which the estate of an intestate was settled and distribution made, will
not be dismissed because all the distributees are not made parties; but
the writ will be amended, so as to make it conform to the record. Hearne's
Admr'x v. Harbison and wife, et al.
731
16. Where the Orphans' Court made an interlocutory order touching the dis-
tribution of an intestate's estate, which is erroneous, if in the final decree
the error is repaired, and complete justice done to the parties, the previ-
ous error will furnish no ground for a reversal of the decree. Ib.
731
17. Quere? Is it competent for an administrator to assign an error, which is
not prejudicial to himself, but merely affects the distributees of the estate,
the defendants in error. Ib.
731
18. An administrator who files his accounts and vouchers for settlement, cannot
object on error, that the notice prescribed by statute, was not given to him.
Ib.
731
19. Where no diminution is shown, but a record of forcible entry before a jus-
tice is entered, according to the truth of the case, a certioruri ought not to
awarded; but, quere? if a refusal to award a certiorari is reversible by writ
of error. Walters v. Rogers,
See Attachment, 2.
See Costs, and Security for, 4.
See Court, Charge of, 5, 7, 9.
See Garnishment and Garnishee, 8, 12.
See Guardian and Ward, 2.
See Orphans' Court, 18.
See Practice in Chancery, 5.
See Practice at Law, 17, 18.
ESTATES OF DECEASED PERSONS.
1. The effect of our statute authorizing the Orphans' Court to compel an ad-
ministrator to distribute the estate after eighteen months, is not to limit the
jurisdiction of the court to cases where no will is made. It merely ascer-
tains the period when the estate shall be distributable. Harrison v. Har-
rison, et al.
470
2. After the expiration of eighteen months, all assets not specifically be-
queathed, and which are usually the subject of sale, are distributable by
the direction of the Orphans' Court. Ib.
3. It is no bar to power to distribute the effects of an estate, that the adminis-
ESTATES OF DECEASED PERSONS-CONTINUED.
trator has obtained, but not carried into effect, an order for the sale of the
470
personal estate. Ib.
4. Nor does the circumstance, that the distributees, or some of them, file a
bill to prevent the execution of such an order of sale, operate as a bar to
the exercise of the power to destribute the estate under the statutes. Ib. 470
5. Chancery has jurisdiction, either at the instance of the distributees, to
compel a distribution and final settlement, or at the instance of the admin-
istrator, to declare the validity or invalidity of wills; but no such applica-
tion being made by the administrator, and the decision of the Orphans
Court upon the same matter, being equally conclusive, it is unnecessary
for the protection of the administrator to have the opinion of a Court of
Chancery, on the validity of the will under which he acts. Ib.
470
6. In all suits for distribution or final settlement, the proceedings may be in-
stituted by one or more parties, and the administrator as to him is the de-
fendant. If the distribution or settlement involves the rights of others,
they are not concluded by the decree, unless brought before the cour;
but this duty devolves on the administrator, as he is the party for whose
protection it is necessary. Consequently, it is error to refuse to delay a
suit for distribution, until the necessary citations can be given by the ad-
ministrator to all parties having an interest in the distribution. Ib. 470
7. When a decree is made for the distribution of the personal estate by com-
missioners, the practice is, that the return and report by them is subject to
exception, and it is only after its confirmation by the court, that the final
order is made to deliver the property, and it is at that time, or subsequent-
ly, the refunding bond is examined and approved by the court. Ib.
470
8. The recital in a decree of the Orphans' Court, that it appeared to the
court by "interrogatory," that the personal estate of the intestate was in-
sufficient to pay the debts with which it was chargeable, cannot serve as a
substitute for depositions, and does not satisfy the requisitions of the act
of 1822, which requires that a sale of the real estate of a deceased person
shall not be ordered, where the allegations of the petition are denied, and
not sustained by depositions taken as in Chancery cases. If such deposi
tions were before the Orphans' Court, and have been lost, they should be
substituted upon due proof. Hill and another v. Hill's Adm'r,
793
See Executors and Administrators, 18.
1. Where a complainant brings money into court, insisting it is all that is
due to the defendant, and the court makes an order that it be paid to the lat-
ter, upon executing a refunding bond, if the defendant execute the bond
and receive the money, he will not be estopped from showing that a larger
amount is due to him; and this although he does not bring into court the
note which the money was intended to pay. Byrd v. Odem,
1. It is irregular to ask a witness what was the estimated cash value put on
lands by the neighborhood generally. At least this is but hearsay, and
those forming the opinion could themselves be called as witnesses. Pow-
ell v. The Governor, ex rel.
36
2. The agent of a corporation, who accepts bills drawn on him by a stock-
holder, for the accommodation of the corporation, is a competent witness
against the drawer or indorsers, when sued on the bills, and also if the
action is for money paid, &c. by one party to the bill against another.—
Rhodes v. Sherrod,
63
3. Although bills are drawn and indorsed for the accommodation of a corpo-
ration, it is competent for one party, when sued for money paid &c. to
show by parol, that the agreement was to contribute jointly in case of loss;
and this, although the names, as indorsed on the bills, indicate a different
liability. Ib.
63
4. The circumstance that a party to a bill, sued by another party to the same
bill, stands upon it as the last indorser, is not conclusive that he is not lia-
ble to contribute otherwise, when there is evidence before the jury of a
collateral agreement. Ib.
63
5. When an account is made out by the creditor, and receipted by him, the
presumption arises that it was paid by the debtor. If the creditor in the
receipt, states, that he received the money from a third person, it is evi-
dence of that fact against the debtor. So also, if at the time, he had ver-
bally admitted, or declared, such to be the fact, it would be competent tes-
timony against the debtor, as a part of the res gesta. His subsequent ad-
missions or declarations, are not evidence of the fact being mere hearsay.
Harrison v. Harrison, adm'r,
73
6. When an overseer enters upon the discharge of his duty, and continues
until he is dismissed by his employer, in an action for his year's wages, he
need not prove that he performed his services faithfully, as a presumption
arises that such is the fact, from his being permitted to remain on the plan-
tation, and it then devolves on the employer, to establish a sufficient cause
for dismissing him. Roberts v. Brownrigg,
7. The grantor in a deed of trust, by which property is conveyed to a trus-
tee, for the benefit of creditors, is not a competent witness for the trustee,
in a suit by him to recover the trust property from a purchaser claiming
through a sheriff's sale, by virtue of an execution against the grantor.—
Hodge v. Thompson,
131
8. One who has indemnified the sheriff for seizing goods so conveyed, is not
a competent witness to sustain the title of a purchaser from the sheriff,
when the suit is by the trustee; because, when the sheriff is indemnified,
the purchaser, if evicted, may sue him as a warrantor of the goods pur-
chased. Ib.
131
9. The declarations of a grantor in a trust deed attacked for fraud, made pri-
or to the execution of the deed, cannot be given in evidence to show the
object and purpose of the deed. Ib.
131
10. In an action of trover against the purchaser from one who is dead, his
widow and son are competent witnesses for the defendant, it being shown
that the estate of their relation is insolvent. Tatum v. Manning, 144
11. The declarations of one in possession of a slave, that it belongs to him,
is competent testimony, in a suit where the slave was claimed by another.
The weight it is entitled to, is a question for the jury, under all the circum-
stances of the case. Gary v. Terrill,
12. A distributee who received a portion of his distributive share, and re-
leases to the administrator all claim upon the residue, is a competent wit-
ness for the administrator, in a suit against him by a creditor of the estate.
So also is the husband of a female distributee, who releases his wife's
claim to such residue. Hall v. Alexander,
219
13. The administrator is not a competent witness to prove to the court, that
he had funds in his hands sufficient to pay all the claims of creditors, for
the purpose of enabling the distributees of the estate to testify. But if the
distributees execute releases to him, previous to being admitted to give
evidence, as his testimony could not prejudice, it will not be an error avail-
able in this court. Ib.
14. Although it may not be allowable for a witness to state a conclusion of
law instead of the facts, of which its predicated, it is competent for one
informed upon the subject, to answer whether certain persons did, at a time
and place designated, enter into an agreement to run as a company a line
of stages; for though the question whether a partnership existed, may in-
volve a legal inquiry, it is a distinct fact, whether an agreement was en-
tered into with a view to its creation. Anderson v. Snow & Co. 247
15. The plaintiff sought to charge a party as a partner in running a line of
stages, and gave evidence of his declarations at different periods—at the
earliest he admitted the partnership, and at the latter denied it. Plaintiff
farther offered to show, that at the time of defendant's denial, another line
had been started on the same road, and in consequence of the competition,
the charge for passengers had been greatly reduced: Held, that this lat-
ter testimony did not impair the weight of the declarations last made by
the defendant, but were irrelevant, and consequently rightly rejected.—
lb.
248
16. The declarations of a party that he had promised to a stage line four hor-
|