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pleader was

McNeil et. al.

awarded. Jones v.

2. A plea to the merits, admits
the right in which the plaintiff'sues.
Newman v. Murphy.

3. A motion in arrest is only a-
vailable when, from the plaintiff's
own showing he has no cause of ac-
tion. Bank v. Flagg.

4. A plaintiff in replevin, after
the expiration of one month from
the lodgement of the writ, cannot
be permitted to file his declaration;
the act of the Legislature is posi-
tive on this point, and leaves no dis-
cretion with the Court. Murphy v.
Sumner.

5. In general a judgement of non
pros. cannot be entered up, where
there has been no appearance, or
where it has been entered after the
case is out of the Court; but in re-
plevin, under the act of 1808, no ap-
pearance need be entered until after
the declaration is filed; and if it be
not filed in a month from the lodg-
ment of the writ, the defendant
may, without having appeared, and
without leave of the Court, enter up
a judgement of non. pros.

6. Where a special contract is
still open, the plaintiff must declare
on it, and must set out the whole
of the consideration; and if any part
be omitted he must fail for the vari-
ance: but where a special contract
had been made between the plaintiff,
(an overseer,) and the defendant
(his employer,) and the latter dis-
charges the former from his service,
he puts an end to the original con-
tract, and the plaintiff may recover
on the common counts.-Rye v.
Stubbs.

Vide SURETY. 1. PRACTICE.

POWER OF ATTORNEY.
Vide AGENT. 1. 2. EVIDENCE. 9.

PRACTICE.

1. The Act of 1792 (1 Faust,
213) authorizing the revival of pro-

84

153

177

216

Ib.

384

cess against absent defendants, re-
quires "the rules or process" to be
posted on the Court house door; the
posting of a mere notice that a sci. fa.
has issued is not a compliance with
the Act.-Treasurers v. Tarrant.

2. A nominal plaintiff, who has
transferred his interest in the note
sued on, shall not be allowed frau-
dently to discontinue the action, and
thereby defeat the right of the real
plaintiff.-Morris v. Peay.

3. Where the defendant, hav-
ing pleaded the general issue, on the
trial, admits the plaintiff's cause of
action; this does not entitle him to
the right of reply.-Administrators
of Gray v. Cottrell.

4. Where security for costs is put
in, under an order of Court, and the
obligation entered into before the
clerk, the Court may, on a rule a-
gainst the security, order an execu-
tion to issue against him for the
costs.-Nolly v. Squire.

5. Where a plaintiff in attachment
had entered up a joint judgement a-
gainst several garnishees, and issu-
ed separate executions against each,
the judgement and executions were
set aside for irregularity.-Pringle
v. Carter.

6. Whenever this Court per-
ceives matter in a case having an
important bearing on its merits and
justice, the Court will take care to
have it fully argued and explained,
although no such ground was taken
below, and made a ground of appeal.
Mitchell v. Anderson.

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7. A rule against the sheriff should
be moved for within a reasonable
time after the default, and it seems,
before the execution has lost its
active energy.-Mongin v. Cheney. 145
8. The discretion of the Court,
in relation to amendments, must be
regulated by the rules of law; and
it is the constant practice to permit
judgements and executions to be a-
mended according to the right of the
case, even after a sale under execu

tion.-Hubbell v Fogarlie et ux.

9. It is the constant practice here
to amend proceedings in any stage,
so as to preserve their symmetry,
and to make them conformable, if
there be any thing by which to a-
mend; and a verdict inay be amen-
ded so as to conform to the declara
tion, if the error be apparent on the
face of it -Bank of Pennsylvania
v. Condy.

10. Judgements and executions
may be amended so as to conform
to the legal recovery, even after a
sale has been made under them, of
course, and without notice to the de-
fendant in the execution.-Giles et
al. v. Pratt.

11. A defendant in an action of
slander shall not be permitted on
the trial of the case, to strike out the
general issue for the purpose of
pleading a justification: and if he
files the latter plea by the plaintiff's
consent, which was given on condi-
tion,that the first shall remain, this
is an acceptance of the terms offered,
by which he shall be bound. The par-
ty who is the actor in the issue be-
fore the Court, is entitled to the re-
ply; and where there are several is-
sues, some of which are to be pro-
ved by the plaintiff and others by
the defendant, the plaintiff is enti-
tled to the general reply in evidence
and argument.-Anonymous.

12. When the Court orders wit-
nesses to be separated or withdrawn
from the Court during the examina-
tion, and a list is furnished to the
sheriff to enable him to execute the
order, witnesses not then in atten-
dance, are not included, and need
not be placed on the list; and if wit-
nesses afterwards attend who were
not present during the examination,
they may be sworn.

13. The practice in this State
when witnesses are to be separated,
is for the parties to furnish a list of
them to the sheriff, whose duty it
then is to keep them out of Court,
and if a witness should afterwards

167 be present during the examination,
the party calling him shall not be de-
prived of his evidence; but if either
party choose not to furnish the sher-
iff with a list of witnesses, he takes
on himself the responsibility of keep-
ing them out of Court, and if one of
his witnesses should be present du-
ring the examination, he could not
afterwards be examined.

209

239

251

Ib.

14. The Court may, at the in-
stance of a creditor, order an issue
to try whether a judgement be frau-
dulent. Posey v. Underwood.

15. Notice of the application to
examine witnesses out of the State,
must be served on the party himself.
Andrews & Keenan v. Thomas.

16. The opinion of the Appeal
Court, in a case, is the law of that
case, and the jury have the right,
when they retire, to take it with
them, and refer to it, as the law by
which their verdict is to be found.
State v. Anderson.

17. The filing of the original bond
or note with the declaration, instead
of a copy, is a compliance with the
4th Rule of Court: but where no
plea has been put or order for judg-
ment obtained, the case should be
stricken from the docket. Davis v.
Cosnahan.

18. Where the plaintiff inadvert-
ently omits to give evidence which is
essential to his action, the Court may
permit him to supply the defect af-
ter he has closed his case, and a
motion made for a nonsuit.-Poole
v. Mitchell.

19. Where an action is brought
for the benefit of another, in the
name of a public officer, who re-
signs pending the action, and a suc-
cessor is appointed, his resignation
need not be suggested on the re-
cord, and his successor substituted;
the practice is, to prosecute the suit,
in the name of the incumbent at the
time of action brought, and he is
neither liable for costs, nor can he
release the action.-Clowney, Com.
v. Foote & others.

Ib.

262

278

327

373

404

421

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1. Thirtyyears adverse possession
of personal property, is not merely
a circumstance from which a jury
may presume a title to have exist-
ed, and which, in the lapse of time,
has been lost or mislaid, but is, in
itself, a good title, or a substitution
in the place of a paper title.-
Hutchison v. Noland.

2. Presumptions are rules of law,
which in themselves are evidences
of, or muniments of title; and if the
presumption arise out of the defen-
dant's evidence, it must be decided
by the jury: but if by the plaintiff's
own shewing, the presumption of ti-
tle in the defendant arises, then he
has proved title out of himself, and
may be non-suited.
Vide EVIDENCE. 10.

PRISON BOUNDS.
Vide INSOLENT DEBTORS AND
PRISON BOUNDS

ACTS.

PUBLIC OFFICER.

Vide PRACTICE. 19.

REPLEVIN.

Vide PLEADING. 4. 5.

RIOT.

1. Where three or more persons as-
semble together armed, with an in-
VOL. I.-G3

Ib.

222

Ib.

tent mutually to assist one anoth
er, in an enterprise of a private na-
ture, and afterwards execute the
same in a threatening manner, it is
a riot, whether the act done be law-
ful or not.-State v. Brooks.

SEALED NOTES.

Vide BONDS AND UNNEGOTIA-
BLE SECURITIES. 1, 2.

SHERIFF.

1. Twenty-one cents, per diem,
is the allowance to a sheriff, for
keeping a horse he has levied on.
Eddy v. Smith.

2. An attachment against a sher-
iff, will only be awarded for a wilful
default; and where facts exist, which
negative the idea that he is in con-
tempt, he should not be attached. A
rule against the sheriff must be mo-
ved for, within a reasonable time af-
ter the default; and as it seems, be-
fore the execution has lost its active
energy-Mongin v. Cheney.

3. Where a sheriff, having a de-
fendant in custody, receives an in-
demnity, acknowledges satisfaction
on the execution, and discharges the
defendant, he becomes liable for the
debt, whether he ever received any
money or not.-Treasurers v. Mc-
Dowell.

361

145

184

4. When the sheriff has collected
the whole sum really due, tho' a lar-
ger sum be expressed on the execu-
tion, he will not be considered in
contempt, for delaying to enforce
the execution for the balance, until
the Court can decide on the defen-
dant's application to be relieved
from it. Bank of Pennsylvania v.
Condy.
209

5. An action will lie against the
sheriff, on his official bond, for ta-
king a void bail bond.-Treasurers
v. Barksdale.

6. Where a writ in assumpsit,
with an order for bail, was lodged

272

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8. The Sheriff cannot except to
the regularity of the process lodged
with him to serve. McWhorter v.
Reid.
368

9. In general, the party for whom
the Sheriff has collected money,
should not be allowed to sue until
after a demand of payment; but
where the sheriff asserts a right to
retain the money in opposition to
the plaintiff's claim, no demand is
necessary. Sims v. Anderson.

10. It is the duty of the Sheriff
to execute process as soon as he
reasonably can: and where a bail
writ was lodged with the Sheriff, a-
gainst a member of the Legislature,
and remained in his office until with-
in ten days before the Legislature
was convened by a proclamation
from the Governor, when the de-
fendant was privileged from arrest,
and was therefore not arrested; this
was held to be a neglect of duty, for
which the Sheriff was liable. Sol-
omon v. Richardson.

11. Where the Court had or-
dered several actions against the
Sheriff and his securities on his bond
to be consolidated, and the amount

394

396

of the several claims exceeds the
penalty of the bond, the jury should
find that fact in a general verdict,
and in the same verdict assess sep-
erately the claims of each creditor,
upon which a motion may be predi-
cated to order the amount of the ver-
dict when collected to be paid over
to the creditors, according to their
respective interests. And where
several claims have been submitted
to a jury on a writ of inquiry at the
same Term, no advantage can be
claimed from having been first be-
fore the jury.
Treasurers v. Bates, 409

12. And when one creditor has
submitted his claim to a jury, anoth-
er creditor has not the right to offer
evidence to lessen the amount of
the claim; but when a motion is
made to distribute the money, an is-
sue may be made up at the instance
of any of the judgment creditors,
to try the question of fraud, in any
other of the claims.

Ib.

13. Where the Sheriff had advan-
ced money to the plaintiff, on an ex-
ecution in his office, with an under-
standing that he was to be reimbur-
sed when the execution was collect-
ed: Held, that the execution was
satisfied, and that neither the Sher.
iff nor any one else, could afterwards
use it to enforce any claim against
the defendant.-Martin v. Gowdy. 417

14. In cases of escape on final
process, the Sheriff's liability is pre-
cisely that of the original debtor;
and where the Sheriff had made an
arrest on a void ca. sa. he would be
justifiable in discharging the prison-
er without being liable for an escape.
Akin v. Moore.

Vide COSTS. WITNESS. EXE-
CUTION. 6. 7. PRACTICE.
7. LIMITATION, STATUTE

OF.
3.

SHERIFF'S SALES.

1. A purchaser at Sheriff's sale
is only bound to enquire whether the

432

Sheriff has authority to sell; if he
has, he may purchase, and cannot
he effected by any irregularity in
the sale, or in the application of the
proceeds.-Giles et al. v. Pratt.
2. A sheriff's sale of land on Tuesday
is valid, although there was sufficient
time to have sold on Monday; the
Sheriff must judge of the necessity

which authorizes the sale on Tues-
day.-Cain v. Maples.

3. The Sheriff' levied on, adverti-
sed, and sold land, as "the tract of
land whereon the defendant lives ;"
he lived on land which originally
consisted of two distinct tracts, but
were, for many years, enclosed and
cultivated as one; the Sheriff's
deed conveyed the whole land--
Held, that the sale included both
tracts.

4. Where a purchaser at Sheriff's
sale brings suit to recover posses-
sion, he is only required to produce
the judgment and the Sheriff's con-
veyance, as against the defendant in
the judgment and all claiming under
him subsequently to the judgment;
and if one holds by a fraudulent
conveyance from the defendant, exe-
cuted before the judgment was ren-
dered, he stands in the same situation
as the original defendant.-Thom-
as & Ashby v. Jeter& Abney.

Vide CONTRACT. 4. EXECU-
TORS AND ADMINISTRA-
TORS. 2. 3. FRAUD. 10.

SHIP.

1. A ship at sea, is included in the
general term " effects," and would
pass, in a conveyance, under the
words "goods, merchandise, and ef-
fects."-Welsh v. Parish et al.

SLANDER.

Vide EVIDENCE. 7. PRACTICE.
11.

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SLAVE.

1. A master may constitute his
slave his agent.-Chastain v. Bow-
man.

2. Under the Act of 1740, 2 Brev.
238, no forfeiture occurs, until after
seizure and condemnation.-Hob-
son v. Perry.

3. A deed of a slave, absolute on
its face, but with a secret trust, to
let the negro go at large as a free-
man, or with a view to future eman-
cipation, is no violation of the ac tof
1820, and is obligatory between
the parties; until emancipation
actrally takes place, the right of
property remains in the grantee.—-
Cine v. Caldwell.

4. Amanumission of a slave, to be a
violation of the Act of 1820, and to
authorize a capture, must be a part-
ing with the possession of the slave,
and permitting him to go at large
and act for himself; and unless he
is allowed to go at large without
an owner, he is not liable to be cap-
tured.

5. To entitle one to claim a negro
by capture, he must seize him as a
slave which was emancipated contra-
ry to law; but if he has seized the ne-
gro
under a title which turns out to be
defective, he cannot afterwards claim
him as a slave captured on account
of such unlawful emancipation.
Vide TRESPASS, vi et armis. 1.

SOLE TRADER.

1. The custom of appointing fem-
me coverts sole traders, in this State,
is derived from the custom of Lon-
don, and applies only to such as are
engaged in trade and commerce; it
never was intended to authorize any
other pursuit in which the wife
might engage; nor does the act of
1823, or any other, confer any new
power on married women, but only
recognizes the existence of the cus-
tom, and provides regulations to pre-

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