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ORPHANS' COURT-CONTINUED.

order for an execution, is unauthorized by any statute, and cannot be sup-
ported. Willis v. Willis' Adm'r,
721

21. After the Orphans' Court has rendered a final judgment, and adjourned
the term, it cannot grant a new trial. Fitzpatrick's Adm'r v. Hill, 783
22. The County Court in adjusting the account of an administrator, or the
settlement of his account, is not authorized to submit an issue to a jury,
to determine whether his claims for compensation are proper, and it makes
no difference that the estate is insolvent. Harris v. Martin,
895
23. The Orphans' Court has not jurisdiction of a petition for the allotment of
dower. Barney v. Frowner and wife,
901
24. Quere, when three commissioners are appointed by the Circuit Judge, to
act instead of the Judge of the Orphans' Court, may not two form a court.
McLaughlin, Adm'r v. The Creditors of Nelms,
925
25. A sheriff appointed er officio administrator, may be cited by the Orphans,
Court for settlement, and a decree be rendered against him like any other
administrator. Ib.

See Chancery, 13, 14.

See Contribution, 2.

See Error, Writ of, 15, 16.

See Estates of Deceased Persons, 1, 2, 3, 4, 5, 6, 8.
See Executors and Administrators, 5, 7.

See Guardian and Ward, 1, 2.

See Vendor and Vendee, 4.

OVERSEERS.

925

1. The overseer of slaves under a contract with the master to supervise and
direct their operations, must be considered to some extent as the repre-
sentative of the master, and invested with authority to inflict reasonable
punishment for a breach of police regulations; and this whether the offence
of the slave is criminally punished by the law or not. Gillian v. Senter, 395
2. The master may maintain an action of trespass against an overseer, who
inflicts cruel or immoderate punishment upon his slave. Ib.
395

PARENT AND CHILD.

1. An insolvent debtor is not allowed to appropriate the proceeds of his la-
bor to investments in real estate for the advancement, or in the name of
his children; and if he procures a conveyance to be made to a child under
such circumstances, the estate may be reached by an execution creditor.
Patterson v. Campbell,

PARTNER AND PARTNERSHIPS.

933

1. Although the engagement of an individual member of a firm may not be

PARNTER AND PARTNERSHIPS-CONTINUED.

within the scope of the partnership dealings, yet if the transaction come
within the knowledge of his co-partners, and is assented to by them, then
it will be obligatory upon the concern. McNeill's Ex'rs v. Reynolds, 313
2. The profits of a partnership are to be divided equally, unless there is a
contrary stipulation, or unless some fact or circumstance exists, from which
it may be inferred, the parties intended the profits should be divided, in
certain unequal portions. Turnipseed v. Goodwin, et al.
372
3. A partnership being formed for the purpose of buying and selling lands
each partner to furnish an equal share of money, if one should refuse to
make the necessary advances, it would be good cause for putting an end
to the partnership, but as long as the partnership subsisted, a larger ad-
vance by one partner, than it was his duty to make, would be compensated
by allowing him interest on such excess. Ib.

372
4. An allegation in a bill filed by one partner, against the rest, for a settle-
ment of the partnership accounts, that an agreement had been entered in-
to between himself and another partner, to invest a portion of the partner-
ship funds in a tract of land, sell and divide the profits, if intended to call
on that partner for a division of the profits of that particular speculation,
would render the bill multifarious. It cannot be objected therefore, by
the complainant, that the Chancellor, by a liberal interpretation, and to
avoid the charge of multifariousness, considered the allegation as introdu-
ced for the purpose of calling on the partner to account for so much of the
partnership funds paid him. Ib.
372

See Evidence, 14, 15, 16, 18.

See Practice in Chancery, 15.

PATENT FOR LAND.

1. The first article of the treaty of 1814, with the Creek Indians confers up-
on the chiefs and warriors provided for, a qualified inheritable estate, which
is determined by the sale of the reservee, the cesser of occupation, and his
removal from the State; and immediately upon such abandonment of pos-
session, the reservation becomes a part of the public domain, without any
positive assertion of right on the part of the United States. Crommelin v.
Minter, et al.

PAYMENT.

594

2. F and F being largely indebted to a bank, made an agreement with it, by
which they conveyed certain property, and assigned certain promissory
notes, for the payment of the debt, and obtained an exemption from suit
for five years. Subsequently they transferred other promissory notes, to
another bank, absolutely, in discharge of a debt owing to it. A fund was
provided for the payment of the notes transferred to both banks, which be-

PAYMENT-CONTINUED.

ing insufficient for the payment of all-Held, that the notes first transfer-
red, were entitled to priority of payment, as they were stated in the agree-
ment, to be transferred as collateral security money, F, F, and all the par-
ties to the note being insolvent. Bank of Mobile v. P. & M. Bank of Mo-
bile,

645

3. If the plaintiff in execution receives of the purchaser of property at a sale,
thereunder to be made, a bill payable at a future day, the plaintiff cannot
object to an action for money had and received, brought by the defendant
upon the reversal of the judgment, that he received in payment of his debt
a bill, instead of the money. Stewart v. Conner,
See Clerk and Register of County, 4, 5.
See Executors and Administrators, 14.
See Principal and Surety, 7.

See Sheriff and Sureties, 9, 10.

PENALTY.

803

1. A steam-boat having been engaged in business on the waters of this State
until the month of May, and being then about to leave the State, proceeds
from Mobile to Stockton, without passengers or freight, for the purpose of
laying in wood, the owner is not subject to a penalty for employing an en-
gineer without a certificate from the board of engineers at Mobile. The
President, &c. of the Board of Steamboat Engineers v. Miller,
See Taxes and Tax Collector, 1.

PLEADING.

511

1. Where an action is brought upon the indorsement of a promissory note,
the plaintiff's right to recover cannot be made out by proof of a fraudu-
lent concealment, or misrepresentation by the indorser, in respect to the
ability of the maker to pay. To make such a fraud available as a ground
of action, it must be specifically declared on, in a suit brought by the party
defrauded. Branch Bank at Montgomery, &c. v. Gaffney,
153
2. It is not necessary in such a suit, to alledge in the declaration, that the
contract was in writing, but it must be proved on the trial. Kizer v.
Lock,

269

3. When the suit is against the indorser of a note not negotiable, after a
failure to recover in a suit against the maker, commenced with the statu
tory diligence, the declaration must show the suit against the maker was
decided by a judgment upon the merits of the note; and a declaration is de-
fective if it alledges only the determination of the suit in favor of the ma-
ker. Murphy & Pierson v. Gee,

276

PLEADING-CONTINUED.

4. A single count in assumpsit upon several promissory notes, is good. Bird v. Daniel, 302 5. A count upon eight promissory notes is sufficiently precise, which alledges that they all bear the same date, (which is stated,) and that the plaintiff is the payee; three of them payable on the 1st day of December, 1842, for the sum of forty-five dollars each; four others for the same amount, payable twelve months thereafter; the eigth payable on the latter day, for twenty-five dollars. Ib. 302 6. A plea which assumes to answer the whole declaration, but omits to answer a material part, is bad on demurrer. Standifer v. White, 527 7. In assumpsit, upon a verbal contract, the declaration should state a time when it was made, but this is alledged only for form, and the plaintiff is at liberty to prove a contract, express or implied, at any other time previous to commencing the suit; and the insertion or omission of a videlicit, in making the allegation of the time, can have no effect upon its materiality, or the admission of evidence. Hogan, &c. v. Alston, 627

8. A plea which seeks to avoid the payment of a note given for the price of land, sold under the decree of the Orphans' Court, on the ground that the administrator has refused to let the purchaser into possession, or to execute a deed, is defective when it does not show what were the terms of the contract, or the manner in which the supposed duty is cast on the administrator. Matthews v. Evans, 643 9. When a declaration on a note states its loss, it must. under the act of 1824, be accompanied with an affidavit that the statement of the loss is true; and the omission of the affidavit is available on demurrer to the declaration. Bell, use, &c. v. Moore,

823

10. Semble,that oyer is not demandable of a record, unless it be a deed enrolled, letters of administration, &c.; the misrecital of a record must be taken advantage of by plea of nul tiel record; but if a record be correctly set out in a scire facias issued upon it, and does not show the liability of one of a plurality of defendants, perhaps a several demurrer at his instance should be sustained. Hall et al. v. The State,

827

11. The act of 1840, only makes it unlawful for a member to be the indorser or surety of a note discounted by the State Bank or any of its Branches, which is not his own paper, or for his own benefit, and a plea in avoidance of a note, signed by a member, as surety, is bad, if it does not negative these facts. Branch Bank at Decatur v. Douglass, 853 12. Where a married woman sues alone, in a case where she might join in the action with her husband, the objection can only be taken by plea in abatement; if she has no legal right whatever, she may be non-suited.— James v. Stewart & Rainey,

855 13. A count, on an account stated, is good, if it states the accounting of the

PLEADING-continued.

defendant with the plaintiff, and the indebtedness thereby for a specific
sum, followed by a super se assumpsit. Carlisle v. Davis,

858

See Abatement, 6.

See Evidence, 50.

See Contract, 8.

See Indorser and Indorsee, 6, 7, 10.

See Practice at Law, 8.

PRACTICE AT LAW.

1. Where, in an action upon a promissory note, the indorsement on the writ
states the amount to be less than it really is, and a declaration is filed con-
forming to the indorsement, it is competent for the court, under the gene-
ral powers conferred by statute, to permit an amended declaration to be
filed, describing the note with accuracy. Ex parte Ryan et al. 89
2. Where the names of the parties to the suit are not fully stated upon the
margin of the judgment entry, the defect is amendable by a reference to
the papers in the cause, and may be considered as amended, although the
amendment is not, in point of fact made; and for the purpose of informing
the court that the judgment was intended to apply to the particular cause,
extrinsic evidence is admissible. Smith v. Redus and Wife.
99
3. When an immaterial issue is tried, a repleader will in general be award-
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
4. Defects in the bond and affidavit made on suing out an attachment are not
available on error, unless the exception has been taken by plea in abate-
ment, in the court below. Burt v. Parish & Co.

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211
5. The plaintiff was directed to pay all costs incurred up to the time of set-
ting aside a non-suit, by the next term of the court; if he failed to do this
it was then "ordered and considered," that the non-suit should not be set
aside, but should remain in full force, and execution issue thereupon, after
that term: Held, that the order setting aside the non-suit, reinstated the
cause, and made it subject to future action, and the court at its "next term,"
might, even after the first day thereof, permit the costs to be paid, and di-
rect a trial to be had. Reese v. Billing,

263
6. Where a plaintiff who had obtained jugment below, sued out a writ of er-
ror to this court to reverse it, and whilst the cause was pending here, sued
out execution upon his judgment, and collected the money, and the fact

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