9. From probate to circuit court, practice on.

Under the provisions of the code, as amended in 1871, causes taken to the circuit court on appeal from the probate court, should be tried - de novo. Randolph, Adm'r, v. Ward et al,

10. From a justice of the peace on judgment by default.

238

An appeal cannot be granted from a judgment by default rendered by a justice of the peace, unless the defendant within ten days after the judgment is rendered, make application to the justice to set it aside. Page v. Sutton, Orlopp & Co., 304

11. When second appeal allowed.

A party who has taken an appeal without supersedeas, and failed to perfect it within the time required by law, may take another appeal at any time within the period during which appeals are allowed Turner v Tapscott, Adm'r.,

12. Practice on second appeal.

318

In such cases it is the better, but not the necessary practice, to have the first appeal docketed and dismissed before taking a second appeal.

Ibid.

ARSON.

See INDICTMENT, 6.

ASSIGNMENT.

See EVIDENCE, 13. VENDOR'S LIEN, 3, 4, 5, 6, 8.

1. Of decree, effect of. Where one joint owner of a decree executes an instrument transferring to a third person a part of his interest therein, the legal title and right to control the decree is not thereby changed, nor does the assignee become a partner in the decree. Hanks v. Harris, 323

2. PAYMENT: By assignment of decree.

Where such an assignment is intended as a mode of payment for property purchased by the assignor, its legal effect is to create a security, and the assignor's liability is not thereby extinguished.

Ibid.

8. GUARANTY: In the assignment of a decree. By guarantying payment to the assignee of the sum transferred, the assignor in legal effect warranted that he had a valid decree which,

with good faith and reasonable diligence on the part of the assignee, would be effectual to the payment of the assignor's indebtedness.

Ibid.

4. OF PROMISSORY NOTE: When insufficient to pass title. A. delivered his note to B., under an agreement that it was to be received in payment of a prior note, executed by A. to B., which the latter had assigued without A.'s knowledge. B. also transferred the subsequent note to the assignee of the original note, who took it with knowledge of the facts, and refused to surrender the original note. Held, that he acquired no title to the subsequent one. Newman, Ex'r, v. Henry, 496

1 How levied, and effect of.

ATTACHMENT.

A public declaration by an officer to whom a writ of attachment was directed, that he attached certain land as the property of the defend ants named in the writ, made in the presence of a citizen of the county, was a good levy under the 7th section of the act of March 7, 1867, and created a lien on the land from the date of the attach ment. Harrison v. Trader and wife, 85

2. How and when the lien is created.

The lien of an attachment springs by operation of law out of the act of the plaintiff in bringing his suit properly, and of the off. cers in issuing and serving the process, and upon the performance of these acts, the lien, though inchoate, is perfect and substantial Ibid.

3. Lien preserved upon reversal of judgment of dissolution. When in a proceeding by attachment and levy upon land, judgment is rendered against the plaintiff and the attachment dissolved and he takes an appeal, which is dismissed for failure to file the transcript in time; after which he prosecutes a writ of error and procures a reversal of the judgment below, without filing a supersedeas bond in either case, the lien of the attachment is preserved as between the parties. Ibid

4. Judgment by default against a garnishee.

It is error to render judgment by default against a garnishee, without proof, or an examination of the garnishee. Lewis v. Faul,

470

ATTORNEY.

See BAIL. LIMITATIONS, STATUTES OF, 1.

His right to purchase client's land at tax sale.

The mere fact that a purchaser of land at a tax sale was, during the life of the deceased owner, his attorney in some suits, did not cast upon him the duty of paying the taxes or redeeming the land, or affect his right to purchase. Pack v. Crawford et al.,

489

AUTHENTICATION.

See VENDOR'S LIEN, 1.

BAIL.

See CORONER. PLEADING, 1.

1. Liability of attorney on bail bond.

Semble, that sec. 4823, Gantt's Dig., providing that attorneys shall not be taken as bail without leave of the court, is merely directory, and cannot be set up as a defense to an action on the bond. State v. Jones,

2. Discharge of.

127

Where a change of venue is granted on the application of the defendant, who is at large on bail, and he is ordered into the custody of the sheriff to be transmitted to the custody of the sheriff of the county to which the venue is changed, the right of the bail to the custody of the defendant is impaired, and his liability is at an end.

Ibid.

BANKRUPTCY.

See EVIDENCE, 13. VENDOR'S LIEN, 9.

BASTARDY.

Nature and jurisdiction of proceedings under the statute.

The proceedings in cases of bastardy, provided for in ch. 15, Gantt's Dig., are in the nature of a criminal prosecution, and, under the Const. of 1868, were within the jurisdiction of a justice of the peace. Jackson v. The State,

62

BETTERMENTS.

See VENDOR AND VENDEE, 1.

BILL OF EXCEPTIONS.

Instructions need not be embodied in.

The instructions need not be embodied in the bill of exceptions; if they are so marked and referred to that they may be identified, it is sufficient. Stirman et al. v. Cravens et al.,

Notice of nonpayment.

BILL OF EXCHANGE.

548

When the drawer of a bill of exchange promises to furnish the accom. modation acceptor the means to meet the paper at maturity, and fails to do so, he is not entitled to notice of nonpayment. Harrison v. Trader and wife,

BILL OF PARTICULARS.

See PRACTICE, 3.

85

BONA FIDE PURCHASER.

See VENDOR'S LIEN, 10, 11.

BRIBERY.

See CRIMINAL LAW, 15.

CERTIORARI.

See SUPREME Court.

Nature of the proceeding, and when it will lie.

A proceeding by certiorari is not a direct proceeding to reverse, but is an appeal to the superintending control of this court, and unless there was a want of jurisdiction, or an excess in its exercise, by the court below, this court will leave the party to his remedy by appeal. Baxter v. Brooks, 173

CHANCERY JURISDICTION.

1. To set aside a fraudulent conveyance by a party who is deceased. Where a debtor made a fraudulent conveyance and died, and a judg ment creditor, having probated his claim and had it allowed and classed in the third class, filed a bill in chancery to have the conveyance set aside and the land subjected to the payment of his claim. Held, that the court had jurisdiction to set the sale aside and subject the property to the payment of the debts, and might well retain its jurisdiction to settle and dispose of the equitable rights of the parties. Chambers v. Sallie, Adm'r et al.,

407

2. To render a decree for damages on an injunction bond. Under the statute a court of equity may, upon dissolution of an injunc tion, assess the damages and render a decree therefor against the plaintiff; and such assessment will be conclusive against the sureties on the bond, but the court has no jurisdiction to render a decree against them. Baily et al. v. Gibson et al.,

3. To remove cloud upon title, etc.

472

The rule heretofore adopted by this court that a bill in chancery to remove a cloud upon the title cannot be entertained where the plaintiff is out of possession, approved; but if the case presents other grounds of equitable jurisdiction, or the remedy at law is inadequate, the court will take jurisdiction, notwithstanding the defendant is in possession. Sale and wife v. McLean et al., 612

5. Where the grounds of jurisdiction appear in a cross-bill. If there should be a defect of jurisdiction under the original bill in a chancery proceeding, and the defendant files a cross bill founded upou matters of equitable cognizance, it will cure the defect. Ibid.