pleader was
McNeil et. al.
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.
1. The Act of 1792 (1 Faust, 213) authorizing the revival of pro-
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.
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.
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.
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
1. Where three or more persons as- semble together armed, with an in- VOL. I.-G3
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.
Vide BONDS AND UNNEGOTIA- BLE SECURITIES. 1, 2.
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.
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
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
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.
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
1. A purchaser at Sheriff's sale is only bound to enquire whether the
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.
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.
Vide EVIDENCE. 7. PRACTICE. 11.
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.
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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