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.
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
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.
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.
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.
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-
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,
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.
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.
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,
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,
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,
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,
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
defendant with the plaintiff, and the indebtedness thereby for a specific sum, followed by a super se assumpsit. Carlisle v. Davis,
See Evidence, 50.
See Contract, 8.
See Indorser and Indorsee, 6, 7, 10.
See Practice at Law, 8.
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.
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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