Cairo & Fulton R. R. Co. vs. Hecht & Stephens.

right in the bank. It is the remedy and not the right, and as such, we have no doubt of its being subject to the will of congress. The forms of administering justice and the duties and powers of courts as incident to the exercise of a branch of sovereign power must ever be subject to legislative will, and the power over them is unalienable so as to bind subsequent legislation."

In the case of Howard v. Kentucky and Louisville Insurance Co., the act creating the corporation required all suits by members of the company against it for losses by fire, to be brought in the circuit court of Jefferson county; but the code of practice of Kentucky, subsequently enacted, authorized suits against banks and insurance companies to be brought in the county in which there was a branch of the bank or agency of the company, when the same arose out of a transaction of such branch or agency, and the court held that the company did not acquire a right under its charter to be sued alone in the county of Jefferson that could not be divested by subsequent legislation.

There was due service of process, and the judgment must be affirmed.

N. B. This cause has been removed to the supreme court of the United States by writ of error.

INDEX.

ABATEMENT.

See PLEADINGS, 4. PRACTICE, 5.

ACKNOWLEDGMENT OF DEED.

See HUSBAND AND WIFE, 10.

ADMINISTRATION.

See APPEAL, 7. CLAIMS AGAINST ESTATES. CONFLICT OF LAWS, 5, 6. NONCLAIM, STATUTES OF. PAYMENT, 1. PROMISSORY NOTES. VENDOR'S LIEN, 1, 2.

EXECUTOR: Cannot appropriate assets to particular debts.

An executrix, to whom notes are executed for personal property and rent of the land of her testator, holds them in her fiduciary capacity as a part of the general assets of the estate, and has no power by assignment as collateral security or otherwise, to appropriate them to the payment of one creditor to the exclusion of others. Payne, Huntington & Co. v. Flournoy, 500.

ADMISSIONS.

See EVIDENCE, 18.

ADVERSE POSSESSION.

See LIMITATIONS, STATUTE OF, 4.

AGENCY.

See EVIDENCE, 18. LIMITATIONS, STATUTE OF, 1. TROVER.

1. RATIFICATION: Evidence sufficient to establish.

Where the evidence shows that the defendant, an attorney, having for

collection a claim of the plaintiff, without his knowledge collected the same in Confederate money and loaned it to a third party, who afterward became bankrupt, taking a note therefor payable to the plaintiff, who afterward received from the defendant the receipt of other attorneys to whom the note had been delivered for collection, and after having kept it a few days and made inquiry about the drawer, returned it and demanded the money of the defendant; and tended to show that an agent who had been sent by the plaintiff to look after his claims, upon being informed of the transaction, had expressed himself as satisfied with it: Held, that the jury might well have inferred a ratification of the defendant's acts, if not from the conduct of the plaintiff in receiving the receipt, at least, from that of the agent in assenting to the transaction. Whitehead v. Wells,

2. Notice to the agent, etc.

99.

The principal is affected with notice of all his agent knows in the line of his duty or the scope of his powers.

3. Ratification.

Ibid.

An instruction that the acceptance by the principal, of a valuable consideration for property sold by a general agent ratified the sale, and the principal could not repudiate it without returning, or offering to return, the consideration, held to be substantially good in view of the evidence, though it would have been more correct to have qualified the effect of the acceptance by the principal's knowl. edge of the transaction. Snow et al. v. Grace, 131

4. Principal's right of revocation not affected by the disposition to be made of the proceeds, etc.

Where the payee of a note indorsed and left it with a member of a firm to which she was indebted, for collection, and directed him to apply the proceeds to the payment of her indebtedness, it was a mere direction to an agent, and did not impair the right of the payee to collect the note or change the direction at pleasure. Payne, Huntington & Co. v. Flournoy,

5. Power of a general agent.

500

A general power of attorney authorizing the agent to represent the principal in all his interests, in a given locality, does not empower him to embark the principal in a new and different business. Campbell v. Hastings, Britton & Co.

512

ALIEN.

Capacity to take and transmit land.

Under our statute, aliens may take and transmit land by inheritance or otherwise, and they could, at common law, take by devise. Jones et al. v. Minogue et al.

637

AMENDMENT.

When presumed.

When the covenant sued on is set out in the complaint, this court will not consider a defect in the assignment of breaches where no objection was made to the introduction of testimony in the court below on that ground, but if the proof shows a breach, will regard the complaint as having been amended to correspond with it. Hanks v. Harris, 323

ANSWER.

See DEMURRER, 4. PLEADING, 3. PRACTICE, 6, 7, 9.

APPEAL.

See ATTACHMENT, 3. ERROR, Writ of. JuRISDICTION, 1–2. PRACTICE, 1.

1. Effect of, upon the judgment.

Upon the recovery of judgment, the cause of action is destroyed by merger, and the granting of an appeal does not revive it so that another suit may be maintained on it, or impair the judgment, but the latter continues to subsist until reversed and set aside. Cloud, Adm'r, v. Wiley et al., 80

2. Former recovery may be pleaded pending appeal.

In such case the defendant, if sued again during the pendency of the appeal on the original cause of action, may plead a former recovery.

3. Appellee cannot dismiss.

Ibid.

The appellee, on appeal by an administrator from a judgment of allowance against the estate of his intestate in the probate court, has no right to dismiss the proceeding in the circuit court, or before the clerk thereof in vacation; and it is error for the circuit court to

strike the appeal from the docket on account of such attempted dismissal.

4. Transfers jurisdiction to appellate court.

Ibid.

On appeal or writ of error, jurisdiction of the cause is transferred to the appellate tribunal, and proceedings in the inferior court are wholly suspended, except in so far as the statute requiring supersedeas bond authorizes the issuance of execution. Harrison v. Trader

and wife,

5.-Effect of reversal of judgment.

85

Where judgment is reversed on appeal or writ of error, the rights of the parties stand as if no action had been taken by the inferior court.

Ibid.

6. How taken in behalf of the state. Where an appeal in behalf of the state is desired, it is by the provisions of Gantt's Dig., secs. 2127 and 2128, required, that the prosecuting attorney pray an appeal during the term at which the decision is rendered, and that a transcript of the record be transmitted, by the clerk, or prosecuting attorney, to the attorney general, who may, if he deem it of sufficient importance, perfect the appeal by lodging the transcript in the office of the clerk of the supreme court within sixty days after the decision was rendered; and where it does not appear that these provisions have been complied with, the case will be stricken from the docket of the supreme court. State v. Cox,

115

7. How taken by an executor from a judgment against his testator. This court will not, before an appeal is taken, revive a cause against a legal representative, in order to enable him to appeal from a judg. ment or decree rendered against his testator or intestate prior to his death. The correct practice in such cases is for the legal representative to file a petition with the clerk of this court showing the facts, and his representative capacity, and take an appeal in his own name; whereupon, if the adverse party desires to controvert the fact of the death, or representative character of the party praying the appeal, he can be heard in this court. Trapnall, ex parte, 60

8. From the probate to the supreme court.

Sec. 16 of ch. 49, Gould's Dig., continued in force after the adoption of the code of practice, and precluded an appeal from a probate court to the supreme court, in the matter of the allowance of claims against estates. The provisions of the constitution of 1868, and of secs. 15, 16 and 19 of the civil code on this subject construed. Yoes, Adm'r, v. Moore and Kidd, Adm'rs,

121