Evidence-Execution.

EVIDENCE—Continued.
22. It is error to admit evidence of dying declarations, without first finding

that the deceased was conscious of his condition when making them.

Montgomery v. The State, 424.
23. It is not error to allow a witness to state the substance of competent dying

declarations, although he may not be able to give the precise words. Ib.
24. In proceedings against an attorney for malpractice, the evidence must be

confined to the specifications. Obio v. Chapman, 430.
25. A record in an action of slander, where an attorney was plaintiff, and

where a plea, charging him with commission of a crime, has been found

true, is not equivalent to a conviction for that offense. Ib.
26. A subscription to pay $25, in labor or stock, for the construction of a road,

will be construed as a contract with the person by whom the road is to

be constructed, for work and labor. Sperry v. Johnson, 452.
27. The subscription paper may be given in evidence to support the common

count for work and labor. Ib.
28. The “ Book of Drafts" of the Connecticut Land Company is not evidence

of a legal title, but only of an equity against the trustees of the company.

Kinsman o. Loomis et al. 475.
29. That six per centum damages have been charged and received by a bank,

on a protested bill, addressed, by mistake, to the acceptor in Ohio, in-
stead of Philadelphia, 'is not evidence that the bank has reserved a
greater amount of interest on its loans and discounts than six per
centum per annum in advance. The Commercial Bank o. John Reed,

501.
EXECUTION-
1. Where, on a ca. sa., the defendant turns out real estate to release his body,

the judgment lien on other lands is not thereby discharged. Douglass

v. Paterson et al. 42.
2. If a judgment debtor is arrested on a ca. 8a., such arrest will, in general,

be considered equivalent to a satisfaction of the judgment. In fact, it

is said to be the highest satisfaction known to the law. Ib.
3. But there are exceptions to this rule. As, if a judgment debtor, arrested,

is discharged under insolvent laws, there can be no pretense that the

judgment is satisfied. Ib.
4. If, at any subsequent period, the debtor shall accumulate property, the

judgment can be enforced against his property, although it can not be

enforced by a second arrest of his body. Ib.
5. Equity has no jurisdiction to compel a sheriff to pay over moneys col-

lected on execution, because there is & plain, complete, and adequate

remedy at law. Ib.
6. A general and standing order of the court of common pleas, directing

the clerk to issue execution for costs, will authorize him, without any

special order, to issue such execution. Elliott v. Ellery, 306.
7. An execution may be levied upon the interest of the mortgagor in posses

sion of mortgaged lands. Seymour o. King and others, 342.
VOL. XI-30

Executor and Administrator-Guardian and Ward.

EXECUTION-Continued.
8. But as no fair sale can be made of land so situated, it affords a sound

reason for abandoning such levy. Ib.
9. A sheriff's return that he could find no goods or chattels, lands or tene

ments, of the principal debtor, unincumbered by mortgage, is sufficient

to authorize suit against the surety, on an injunction bond. Ib.
10. But since it is to be appraised at full price, without regard to the mort

gage, which remains an incumbrance on the land, and which may be
asserted against the purchaser, no fair sale can be made of lands so

situated; and this affords a sound reason for abandoning such levy. Ib.
11. A judgment creditor may relinquish a levy where there is difficulty of

making a fair sale, or a probability of not making the money, in conse-
quence of earlier incumbrances. Bank of Lake Erie v. Western Reservo

Bank, 444.
EXECUTOR AND ADMINISTRATOR-
Equity will relieve against a defective execution of a real contract by an

executor or administrator. Evants v. Strode's Adm'r, 480.
FORFEITURE-
1. Where forfeitures or a penalty may ensue from the answers to a bill, the

defendant is not bound to answer. Cadwallader o. Granville Alexan.

drian Society et al. 298.
2. Where creditor's bill is framed in the alternative, charging that prop-

erty is held under an illegal or void agreement, and praying that it
may be set aside, or, if held valid, that the debtor's residuary interest
may be subjected, the defendant may be protected in withholding dis-
closure as to part, while he would be bound to answer the remainder.

Ib. 298.
3. Where, after a change in the limits of a county, an associate judge fails

to remove within a reasonable time into the county for which he was

elected, he forfeits his office. Ohio v. Choate, 511.
FRAUD-

See Ci NCERY
FRAUDS, STATUTE OF-
1. A parol contract, sor a lease between landlord and tenant, in possession

under a prior lease, is within the statute of frauds, unless possession be
held solely under, and in performance of the parol contract, the terms
of holding clearly indicating the possession to be under the subsequent

parol lease. Armstrong v. Kattenhorn, 265.
2. Where a parol contract, for the purchase or sale of lands, is admitted by

a defendant in his answer, without relying upon the statute of frauds

as a defense, performance will be decreed. Woods v. Dille et al. 455.
GUARDIAN AND W. RD-
1. In this state, the guardianship of a minor female expires, by operation

of law, when the ward arrives at the age of twelve years. Perry o.

Brainard, 442.
2. A guardian, appointed for such minor when under twelve years of age,

can not sell her land after she arrives at that age. Ib.

Guaranty-Indictment.

GUARDIAN AND WARD-Continued.
3. A sale under an order of court, made by such guardian, after the ward

had arrived at the age of twelve years, is void. Ib.
GUARANTY-
1. The indorsement of a note, not negotiable, by a person not a party to it,

is a guaranty. Parker o. Riddle, 102.
2. Upon such guaranty, demand of payment must be made when the nota

becomes due, and notice given by the indorser before suit. Ib. 102.
See BILLS OF EXCHANGE.
HUSBAND AND WIFE-
1. A wife may transmit her separate estate through the intervention of a

trustee, to her husband. Lewis v. Baldwin and others, 352.
2. A conveyance to A. and B., and their heirs, and to the survivor of them,

and to the heirs of such survivor, vests in the survivor an estate in

fee. Ib.
IMPRISONMENT-
The act of March 19, 1838, abolishing imprisonment for debt, operates to

discharge a recognizance of bail entered into before the act took effect.

Tousey v. Avery, 90.
IMPROVEMENTS-
A valuation of improvements, under the occupying claimant law, is in-

valid, unless reasonable notice of making it be given to the adverse

party, or his attorney of record. Lessee of Patterson o. Prather, 35.
INCORPORATION, ACTS OF-

See CORPORATIONS.
INCUMBRANCE-

See MORTGAGE; LIEN.
INDIANS-

See VOTES AND VOTERS, 2.
INDICTMENT-
1. The legislature have the power to declare what acts are criminal, and

they have the same power to prescribe the forms of indictment for the

commission of such criminal acts. Lougee v. The State, 71.
2. Where an offense consists in the performance of a specific act, it is nec-

essary that it should be charged in the indictment to have been com-

mitted on a day certain. Steedman v. The State, 87.
3. Whether, having charged the offense upon one day, it will do to lay it

with a continuando. Quære. Ib.
4. On an indictment, laying a particular day when the plaintiff acted as an

officer of an unauthorized bank, it is competent for the prosecution to

prove the act after the day laid. Brown v. The State, 276.
5. When such association exists in this state, it is not necessary for the pros-

ecution to prove that the bank or association is not incorporated. Ib.
6. Form of an indictment for acting as an officer of an unauthorized

bank. Ib.
7. The court have no power to order a prisoner to stand committed until

fine and costs be paid. Ib. 281.

Infant-Insolvents' Commissioner.

INDICTMENT—Continued.
8. But, after sentence, they may direct the detention of a prisoner until he

can be charged in execution.
9. An indictment for resisting an officer must set forth all the facts Deces-

sary to constitute the offense. Lamberton v. The State, 282.
10. Every indictment should contain a complete description of the offense

charged. Ib.
11. In an indictment for perjury, it is sufficient to aver that the court had

power to administer the oath, without setting forth the facts necessary

to give jurisdiction. Halleck o. The State, 400.
12. An indictment, for bartering, selling, and disposing of counterfeit bank

notes, under section 29 of the statute for the punishment of crimes
(Swan's Stat. 236), will not be supported by proof that the notes were

passed as true and genuine. Vanvalkenburg 0. The State, 404.
INFANT-

See GUARDIAN AND WARD.
INFORMATION
1. An information in the nature of a quo warranto against a body or corpo-

ration exercising a franchise not conferred upon it by law, need not
aver such institution to be a body corporate in law. State of Obio di

Granville Alexandrian Society, 9.
2. The information must be filed in the county where the defendants have

their office or place of business. Ib.
8. And it should appear that the violation of law complained of must have

taken place in the county where the information is filed.
INJUNCTION BOND-

See Bond.
INSOLVENT DEBTOR-
1. If an insolvent debtor, arrested, be discharged under insolvent laws,

there can be no pretense that the judgment is satisfied. Douglass o.

Patterson et al. 44.
2. If, at any subsequent period, the debtor shall accumulate property, the

judgment can be enforced against the property, although it can not be

enforced by a subsequent arrest of the body. Ib.
See INSOLVENTS' COMMISSIONER, 2.
INSOLVENTS' COMMISSIONER-
1. A judgment entered without objection, in the name of the plaintiff, as

commissioner of insolvents, is, between the parties, evidence that plaint-

iff was such officer. Job v. Collier, 422.
2. Morris Seely, an insolvent debtor, made an assignment of his effects,

under the statute, to the commissioner of insolvents, for the benefit of
his creditors. The legislature afterward authorized him to file a bill, as
in chancery, against the state, to recover damages for an alleged breach
of a contract between him and the canal commissioners, prior to his
assignment. It was held that the commissioner of insolvents was not
a necessary party to such suit, and the proceeds should go to Seely, and
not to the commissioner. Seely o. The State, 401.

Insurance-Judgment.

INSURANCE-
1. In an action on a policy of insurance, it is no defense to show that the

loss was occasioned by negligence in the agents of the insured. Per.

rin's Adm’ss v. Protection Insurance Company, 147.
2. A loss of a steamboat by explosion of the boiler is covered by the pol-

icy. Ib.
3. The assured is bound to provide competont capacity and skill; it is a

part of his implied warranty, which caution will enable him to perform. Ib.
4. But risks arising from the carelessness of his servants are covered by the

policy. Ib.
INSTRUCTIONS TO THE JURY-
1. It is not error to instruct the jury that they are not absolute judges of

the law in criminal cases. Montgomery v. The State, 424.
2. If an erroneous charge be given to the jury on an abstract proposition,

or on a point entirely out of any case made by tho evidence, and the
verdict can be supported by the proof made, the judgment will not be

reversed. Creed v. Commercial Bank, 489.
INTEREST

1. Illegal interest paid can not be recovered back. Sheldon v. Gill et al. 417.
2. To enjoin a judgment at law on the ground that illegal interest is in.

cluded therein, a tender must be made of the amount equitably due. Ib.
3. Banks are restricted by their charters from taking more interest than six

per cent. per annum, in advance, on their loans and discounts. Creed

v. Commercial Bank of Cincinnati, 489.
4. If more be taken, the note or bill on which it is taken is void. Ib.
6. It is not evidence that a greater rate of interest than six per cent. per

annum, in advance, has been taken by a bank, where it has charged
and received six per cent. damages on a protested bill, intended to be
addressed to the acceptor at Philadelphin, but, by mistake, addressed to

him in Ohio. The Commercial Bank v. John Reed, 498.
INTRUSION-

See USURPATION.
JUDGES

See ASSOCIATE JUDGE; ELECTIONS AND ELECTORS.
JUDGMENT-
1. Where, on a ca. sa., the defendant turns out real estate to release his

body, the judgment lien on other lands is not thereby discharged.

Douglas v. Patterson, 42.
2. If a judgment debtor is arrested on a ca. 8a. such arrest will, in general,

be considered equivalent to a satisfaction of the judgment. In fact, it

is said to be the highest satisfaction known to the law. Ib.
3. But there are exceptions to this rule; as if, for instance, a judgment

debtor, arrested, is discharged under the insolvent law, there can be no

protenso that the judgment is satisfied. Ib.
4. If, ut any subsequent period, the debtor shall accumulate property, the

judgment can be enforced against that property, although it can not be
enforced by a second arrest of the body. Ib.