See Limitation of Action, 9.
1. Where the Jury found a verdict for a greater amount
of damages than was claimed in the plaintiff's declara-
tion, and a motion for a new trial having been made on
that ground, the plaintiff entered a remittiter on the
record for the excess: Held, that the plaintiff had the
right to enter such remittiter, and that a new trial on
that ground ought to have been refused. Griffin vs.
Witherspoon
2. Where, on the trial of a cause, a witness, from mistake,
failed to prove a necessary fact, to make out the defence,
the witness, having previously assured the defendant he
could and would do so, whereby the defendant was pre-
vented from procuring other testimony to prove the
same fact, which could have been procured, and a re-
covery was had in consequence of such mistake of the
witness and the party: Held, that such mistake ope-
rated as a surprise on the defendant, and that a new tri-
al should be granted, the defendant having shown upon
the record a good and legal ground of defence to the ac-
tion. Wilson vs. Brandon & Shanhon....
3. Where the evidence is conflicting in regard to the main
point in controversy between the parties, the admission
of illegal evidence by the Court, which might, and prob-
ably did decide the question in favor of the plaintiffs, in
* the mind of the Jury, a new trial will be granted. Set-
tle vs. Allison et al..
ment of a promissory note, and the remedy on the lat-
ter is barred by the Statute of Lien, his remedy on the
mortgage is not necessarily barred, the debt being un-
paid, but he may avail himself of his statutory remedy
on the mortgage. Elkins vs. Edwards.....
10. Semble, that when an action is founded on a Statute,
that the law deems it for this purpose a specialty, and
consequently a plea of the Statute, as applicable to the
instrument sued on, cannot be supported. Lane vs. Mor-
ris....
11. The right of a creditor to force a stockholder to pay
in his unpaid subscription for stock, in an insolvent -
bank, is a case of purely technical and direct trust,
to which the Statute of Limitations does not apply.
Hightower vs. Thornton..
12. In Courts of Equity, the Statute of Limitations does
not begin to run in cases of fraud, until the discovery
of the fraud. Stocks et al. vs. Leonard et al..
See Corporations, 20. Equity, 15.
See Constitutional Law, 21, 22.
See Executors, Administrators, &c. 5, 6. Sheriff and Sher-
iffs' Sales, 5.
See Limitation of Action, 9.
1. Where the Jury found a verdict for a greater amount
of damages than was claimed in the plaintiff's declara-
tion, and a motion for a new trial having been made on
that ground, the plaintiff entered a remittiter on the
record for the excess: Held, that the plaintiff had the
right to enter such remittiter, and that a new trial on
that ground ought to have been refused. Griffin vs.
Witherspoon.
2. Where, on the trial of a cause, a witness, from mistake,
failed to prove a necessary fact, to make out the defence,
the witness, having previously assured the defendant he
could and would do so, whereby the defendant was pre-
vented from procuring other testimony to prove the
same fact, which could have been procured, and a re-
covery was had in consequence of such mistake of the
witness and the party: Held, that such mistake ope-
rated as a surprise on the defendant, and that a new tri-
́al should be granted, the defendant having shown upon
the record a good and legal ground of defence to the ac-
tion. Wilson vs. Brandon & Shanhon....
3. Where the evidence is conflicting in regard to the main
point in controversy between the parties, the admission
of illegal evidence by the Court, which might, and prob-
ably did decide the question in favor of the plaintiffs, in
the mind of the Jury, a new trial will be granted.` Set-
tle vs. Allison et al..
4. Where there is conflicting evidence, a mere preponder-
ance against the verdict of the Jury is not sufficient to
authorize a new trial. Flournoy vs. Newton..........
See Charge of the Court. Practice Superior Court, 1, 2,
Verdict, 1, 2.
See Jurisdiction, 1 to 5.
1. To hear reports about an incumbrance upon land, which
the purchaser is about to buy, does not amount to no-
tice, nor is report or rumor a badge of fraud. Colquitt
1. Where P entered into a special written contract with R,
as an overseer for the year 1847, and was to receive a
stipulated portion of the crop at the end of the year for
his services, and in the month of August, R dismissed
him from his employment, without sufficient cause or
provocation; whereupon P, in the month of November
of the same year, instituted his action against R, to re-
cover damages for a breach of the contract: Held,
that the action was not prematurely brought, and that
in regard to this particular class of special contracts,
where the overseer or agent is wrongfully dismissed from
the service of his employer, he has his election of three
remedies: 1st. He may bring his action immediately for
any special injury he may have sustained in consequence
of the breach of the contract by the defendant. 2d. He
may wait until the termination of the period for which
he was employed, and then sue upon the contract and
recover his whole wages. 3d. He may treat the con-
tract as rescinded, and may immediately sue on a quan-
tum meruit for the work and labor he actually perform-
ed.
Rogers vs. Parham.....
1. Upon an agreement between A and B, that A should take certain negroes of B, and work them in a blacksmith shop, furnish all supplies, pay all expenses, and give B one half of the nett proceeds of the shop for the use of the negroes: Held, that as to third persons, A and B are partners. Buckner vs. Lee et al..
2. If the business of a firm is conducted by one of the partners, and his name is the name of the firm, and a note is made by that partner in his name, the firm is liable thereon, if it is proven that the note was made as a note binding the firm, or that the consideration of the note was for the benefit and in the course of business of the firm, and that the payee believed these things, and the maker sanctioned his belief by his acts and representations. Ibid.
3. If money is borrowed, or a purchase made by an individual member of a partnership, and his note is given therefor, it is, prima facie, the debt of the individual; but the holder, in an action against the firm for the consideration of the note, may rebut this presumption by proof, and if it appear that the credit was given to the firm, and not the individual, if the money or the property went to the use and in the course of business of the firm, it will be liable. If, however, the credit was given to the individual, the firm will not be liable, although the money or property went to the use, or in the course of business of the firm. In that case, it will be
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