the wife to contract as femme sole.
Boyce v. Owens.

2. The only exceptions to this
rule, are, when the husband has
been banished or transported; or is
an alien, and resides abroad: in such
cases the wife is, in legal contem-
plation a femme sole. Bean v. Mor-
gan, 4 M'C. 148: questioned and
commented on.

3. When the wife has a legal es-
tate in personal chattels, and the
right of immediate possession in sc-
veralty, the marital rights of the
husband will attach and vest the
property in him.-Sausey v. Gard-

ner.

4. Therefore, where, on the par-
tition of an estate, a negro was al-
lotted to the wife in part of her
share, and the husband left the ne-
gro in the care of the executor, it
was held, that the marital rights
attached, although the husband nev-
er had actual possession.

Vide SOLE TRADER. EVIDENCE.
6.

INDICTMENT.

1. No individual can authorize a-
nother to violate a public law; and
therefore, when the defendant wes
indicted for retailing without a li-
cense, it is no defence, that he was
acting as the agent of another.-
State v. Matthis.

2. Where the character in which
a party acts is a necessary ingredi-
ent in the offence, or when without
it, the act complained of would be
justifiable, the character in which he
acted must be averred and proved;
but where the offence is complete
without it, the allegation is immate-
rial, and need not be proved.-State
v. Davis & Pardee.

3. It is sufficient to justify an ar-
rest in this State, by private per-
sons, without warrant, to shew that
prima facie a felony has been com-
mitted in a sister State, and the par-

191

Ib.

4. Where, from the circumstan-
ces, it is obvious that the prisoner
knew the cause of arrest, and be-
comes the aggressor, it is not neces-
sary to communicate it to him: or
when the party making the arrest,
inform the prisoner of their intention
to arrest him, and he makes no de-
mand of the cause, it is not necessa-
ry to state it.

5. So long as a party liable to ar-
rest, endeavors peaceably to avoid it,
he may not be killed; but whenever
by his conduct, he puts in jeopardy
the life of any attempting to arrest
him, he may be killed, and the act
will be excusable.

Vide ASSAULT AND BATTERY.
CONSTITUTIONAL LAW. 1.
LARCENY. RIOT.

327

Ib.

Ib.

INSOLVENT DEBTORS AND PRI-
SON BOUNDS ACTS.

1. The "Prison Bounds Act” al-

37 lows a defendant forty days "after
being taken in execution," to give
security for the rules, &c. and forty
days from giving such security, to
render a schedule; but the schedule
must be sworn to within forty days
from the date of the bond; and
where the schedule had been lodged
with the Clerk, within the legal
time, but was not sworn to until af-
ter it had elapsed, it was held that
it could not be received as a com-
pliance with the act, although such
had been the practice of the Clerk,
where the defendant applied for his
discharge, and the defendant had

46

acted under the advise of counsel.
Crovat v. Coburn, 3 M'Cord, 14;
commented on-Walker v. Briggs.

2. A payment by a prisoner in ex-
ecution, to deprive him of the bene-
fit of the " Prison Bounds Act,".
must be an undue preference, to the
prejudice of the plaintiff'; such an
intentional preferring of one credi-
tor, as may enable him to receive
payment, and altogether defeat, de-
lay, or hinder another from being
paid.

3. Under the "Prison Bounds
Act," the assignment of the sche-
dule is made to the plaintiff in that
case, subject to prior liens; other
creditors are not entitled to a share
of the property assigned.

4. A defendant in malicious pros-
ecution is entitled to the benefit of
the "Prison Bounds Act."

5. Where a defendant who ap-
plies for a discharge from arrest,
under the "Prison Bounds Act," is
in the possession of property, not in-
cluded in his schedule, and pays
taxes for it as his own, it is incum-
bent on him to account for his pos-
session, and to shew that the prop-
erty does not belong to him.

6. An assignment under the "In-
solvent Debtors' Act," vests all the
interest and estate of the debtor,
which is capable of being convey-
ed, whether vested or contingent,
in possession or remainder, in the
assignee, whether he accepts the
trust or not.-Cohen v. Gibbes.

7. Where a defendant in execu-
tion has escaped from the prison
bounds, this does not preclude the
plaintiff from going on to try the is-
sucs made on the schedule.—Wall-
er v. Briggs.

8. A defendant who has given
bond for the bounds, petitioned for
his discharge under the "Prison
Bounds Act," and filed a schedule,
on which several issues are made,
has not the right to discontinue or
withdraw his application.

9. Where there are several is-

Ib.

Ib.

Ib.

Ib.

206

of the issues, the jury find that the
schedule was not filed in due time,
the jury are not, by this fact, pre-
cluded from finding on the other is-
sues. They must find on all the is-
sucs submitted to them.
Vide EXECUTION. 7. 8. 9.

INTEREST,

1. In an action of debt on judg-
ment, interest is recoverable, by way
of damages, whether the original
cause of action bears interest or not.
Harrington v. Glenn.

Ib.

79

2. Interest is not recoverable on a
verbal contract, in which the defen-
dant agreed to pay the plaintiff one
hundred dollars, for rendering a ser-
vice.-Farr v. Farr.
393

3. A factor who advances funds
in anticipation of produce to be for-
warded, is entitled to interest, but
not to commissions, on such advan-
ces. He is not liable until after de-
mand, for interest on balances which
may, at any time, be in his hands.-
Cheeseborough & Campbell v. Hun-

ter.

400

JOINT TENANTS AND TENANTS
IN COMMON.

Vide LARCENY. TRESPASS TO
TRY TITLES. 3. TROVER.

JUDGMENT.

Vide BONDS AND UNNEGOTI-
ABLE SECURITIES. 1.
FRAUD AND FRAUDULENT
CONVEYANCE. 5. 6. 7. 8.
DISCOUNT. EVIDENCE. 12.
PRACTICE. 14.

JURISDICTION.

1. Where a debt is created by a
penal statute, and no mode of reco-

in malice, and without any reasona-
ble or probable cause, the remedy is
an action on the case, for malicious-
ly suing out a search warrant.

LIEN.

Vide EXECUTION. 1. 3. 4. 5. 6.
MORTGAGE.

LIMITATIONS, STATUTE OF

1. Where a receipt was given for
notes to be collected and applied to
the note in suit, the Statute of Lim-
itations runs from the date of the
receipt.-Swift v. Lanier.

2. In an action by the surety for
money paid for his principal, the
Statute of Limitations runs only
from the time of the payment.-Pe-
ters v. Barnhill.

3. The Stat. of Lim. does not ap-
ply to an action of debt on a Sheriff's
bond.-Treasurers v. Barksdale.

4. If there be mutual running ac-
counts between others than mer-
chants, and any of the items have
accrued within the time of the stat-
ute, this amounts to an acknowledge-
ment of the previous account, and a
promise to pay, and prevents the op-
eration of the Statute of Limitations.
Fitch v. Hilleary.

5. The defendant, the maker of a
note, secretly and fraudulently ob-
tained possession of the note, and
kept it until the Statute of Limita-
tions had run out: the plaintiff, on
discovering the fraud, and that the
defendant had possession, brought
assumpsit, as on a lost note, to reco-
ver the amount: Held, that the
Statute of Limitations was a bar to
the action, notwithstanding the
fraud, and although the plaintiff did
not know where the note was.-
Miles v. Berry.

6. Four years exclusive and ad-
verse possession of personal proper-
ty, will give title under the Statute
of Limitations, although the posses-
sion commenced in fraud.-Gregg
v. Bigham.

Ib.

31

234

272

292

296

299

LOCATION.

Vide TRESPASS TO TRY TI-
TLES. 1. 6. WILL.

MALICIOUS PROSECUTION.

1. What is probable cause, is a
question of Law for the Court: If
there is any evidence showing an
absence of it, the case should go to
the jury otherwise, it is the duty
of the Court to order a non-suit.-
Lipford v. M'Collum.

Vide INSOLVENT DEBTORS AND
PRISON BOUNDS. 4.

Vide SHERIFF. 10.

MERGER OF RIGHT.

1. The civil remedy is not merg-
ed in, or taken away, by the feloni-
ous intent with which a trespass
has been committed.-Cannon v.
Burris.

MILITIA.

1. The Act of 1815, authorizing the
commanding officers of regiments &
brigades, to raise volunteer companies,
within their respective commands,
never contemplated that they should
have authority to enrol in their service,
the privates of another regiment or
brigade. Therefore, where the
members of a beat company had en-
rolled themselves as members of a
volunteer corps of another regiment
and brigade, from that of the beat
in which they reside, they are not
thereby exempt from the perform-
ance of militia duty, in such beat
company.-State v. Bates.

MORTGAGE.

1. Where the vendee of a person-
al chattel agrees, in writing, that
the chattel "shall not be sold until
the purchase money is paid," this
is only a personal contract, for the
breach of which an action would
lie; it does not give the vendor a
lien, for the payment of the pur-
chase money.-Welsh v. Parish et
al.
155

2. The assignment of a mortgage,
82 is in the nature of a bill of sale, and
transfers the title to the assignee,
who may therefore maintain an ac-
tion in his own name, for a tort to
the property.-Montgomery v. Kerr. 291
Vide EVIDENCE. 11.

DED.

Vide SURETY. 2.

NUISANCE.

1. In general, the remedy for a
nuisance on a highway, is by indict-
ment; but if, by such nuisance, a
party suffer a particular damage, an
action lies-but the damage must be
direct, and not consequential.-Ca-
rey v. Brooks.

OVERSEER'S WAGES.

Vide PLEADING. 6.

PLEADING.

1. A new assignment in pleading
is in the nature of a new declaration;
the defendant should plead to it pre-
cisely as to a declaration, and the
plaintiff should reply as to pleas to a
declaration; and, therefore, where
the plaintiff, in his replication, set
out a new assignment of a tresspass,
and the defendant put in a rejoinder
which made four issues; it was held
to be irregular, because, first, it
should have been a plea, and not
a rejoinder; and secondly, it should
have been single, and not multifa-
rious; and the plaintiff having put
in a similiter to the rejoinder, a re-

365