ABATEMENT.
See PLEADING, 5–7.
ACCESSORY.
See CRIMINAL LAW, 7.
A person accused of the crime of murder, and jointly indicted with others for
that offence, was not put upon his trial, but was used by the State's Attorney
as a witness on the trial of the others, who were convicted and executed.
In giving his testimony, he did not, in any way, admit that he participated in
the commission of the murder. Neither did it appear in his petition by him
filed for a writ of habeas corpus, that he was guilty, or had been convicted of
any crime: Held, that he was not in a condition to avail himself of the rights
and privileges of an accomplice. Ex parte Birch, 134.
ADMINISTRATOR AND EXECUTOR.
1. An administrator seeking to subject real estate to sale for the payment of the
debts of the deceased, may give a general notice by publication of his inten-
tion to apply for leave to sell, without naming particular persons as defend-
ants, the statute having regard to all persons interested, whether defendants
or not. Bowles v. Rouse, 409.
2. The proper county in case of non-residents' dying, leaving lands in this State,
is the county where such lands or a part of them lie, and in such county
administration is to be granted. ib.
See COSTS, 8; ERROR, 4; JUDGMENT, &c. 8; STATUTE OF LIMITATIONS, 1.
ADMISSION.
See EVIDENCE, 14.
AFFIDAVIT.
See JURISDICTION, 2.
1. A person who agrees to act for another is not allowed to deal in the business
of the agency for his own benefit; and if he take a conveyance in his own
name of an estate which he agreed to purchase for another, he will, in Equity,
be considered as holding the estate in trust for his principal.
Switzer v. Skiles, 529.
2. A mere agreement to execute a trust in futuro, without compensation, is not
obligatory; but when the trust is undertaken and actually commenced,
the
trustee is bound to proceed and execute it with the same diligence and good
faith, as if he were to receive a liberal reward for his services. The confi-
dence reposed in him, the actual entering on the duties of the trust, and the
injury which may result to the beneficiary, if he do not faithfully fulfil it, are
regarded as a good and sufficient consideration. ib.
ALTERATION.
See RECOGNIZANCE, 2.
See CONTINUANCE, 1; FORCIBLE ENTRY, &c., 7; VERDICT, 5.
ANSWER.
See EVIDENCE, 4, 13.
1. An appeal bond contained the following condition: "That if the said Samuel
Mason and John Mason should prosecute their appeal with effect, and should
pay whatever judgment might be rendered by the Circuit Court upon the
dismissal of the said appeal, then the bond to be void," &c. Suit was brought
thereon, a trial was had, and the Court rendered a judgment in favor of the
plaintiff for the debt, and assessed the damages at six cents: Held, that the
bond, though not exactly in compliance with the statute by reason of the
omission of the words "or trial,' after the word "dismissal," was not void,
but might still, to the extent of the obligation, be the foundation of the ac-
tion: Held, also, that the plaintiff in the Circuit Court, during the pendency
of the appeal, might have objected to the bond for informality and have re-
quired that it be perfected; and upon a refusal to perfect it, the appeal would
have been dismissed. Young v. Mason, 55.
2. A. recovered a judgment in the Circuit Court against B. and four other de-
fendants, all of whom prayed an appeal. The appeal was granted on condi-
tion that they enter into bond with a certain individual as surety. The bond
was executed by four of the defendants with the surety required, and the
appeal was duly entered in the Supreme Court. A. moved to dismiss the
appeal because the order of the Court was not complied with: Held, that the
appeal was not perfected, and the same was dismissed.
Watson v. Thrall, 69.
3. A judgment was rendered in an action of ejectment in the Circuit Court for the
recovery of the tract of land in question, and for damages and costs. An
appeal was taken, and the bond recited that the judgment was rendered on
a day which was not the day on which it was in fact rendered, and that it
was for damages and costs. In the appellate Court, a motion was made to
dismiss the appeal for the want of a sufficient bond: Held, that the bond was
insufficient by reason of the variance. Curry v. Hinman, 90.
4. Te mere order of the Court granting an appeal to a defendant does not divest
the plaintiff of a right to an execution upon the adjournment of Court. The
judgment becomes operative from the last day of the term, and continues so
until the appeal is perfected by the filing of the bond. The refusal of the
Court to stay proceedings on an execution, under such circumstances, cannot
be assigned for error, the application being addressed to the sound discretion
of the Court. Branigan v. Rose, 123.
5. A party appealing from the decision of the Probate Court allowing a claim,
who neglects to tender a bill of exceptions as required by law, cannot object,
in the Supreme Court for the first time, to the want of jurisdiction in the Cir-
cuit Court by reason of such neglect on his part. Welch v. Wallace, 490.
See CHANCERY, 6; EVIDENCE 8; PLEADING, 8.
The Legislature provided by law for the election of a Prosecuting Attorney for
a particular couuty, and fixed the salary, but adjourned without filling the
office. A joint resolution was subsequently passed, authorizing the Gov-
ernor to appoint the officer, to hold until a further provision by law, “with-
out any compensation from the State." An officer was appointed by the
Governor, who served two years, and claimed the salary provided by the
law: Held, that whatever might have been the intention of the Governor, at
the time he made the appointment, he could not have made it under the law
first mentioned, and that the officer held his office by virtue of the joint reso-
lution, and, therefore entitled to no compensation from the State by virtue of
the law. The People v. Campbell, 466.
A. assigned to B. and B. to C. the amount of a judgment recovered before a
justice of the peace, from which an appeal was taken, when judgment was
rendered for the defendant. The assignment was as follows: "For a valua-
ble consideration, I hereby assign the within named judgment (which was
described in another assignment on the same paper,) to Loring Snow, and
guarantee the collection of the same, if well attended to. Dec. 4, 1838.
(signed) William Baker:" Held, that the terms "well attended to" clearly
referred to the collection of the judgment, and not to the sustaining of it
upon the contingency of an appeal. Snow v. Baker, 258.
1. A sued B. in debt upon an appeal bond. At the return term, B. moved to
dismiss the suit, and filed a stipulation signed by the parties, setting forth
that the suit had been settled, and that it was to be dismissed at the cost of
B. The plaintiff's attorney resisted the motion, and filed an a&davit stating
that he and his client had agreed that he should receive a balance of seven
dollars, due for professional services, out of the proceeds of the judgment in
the suit; that B. had notice of the agreement prior to the execution of the
stipulation filed by him, and finally, that the settlement of the suit was made
without his knowledge or consent. The Court dismissed the suit: Held,
that the Court decided correctly. Chapman v. Shattuck, 49.
2. The doctrine is well settled, that a Court of Law will recognize and protect
the rights of the assignee of a chose in action, whether the assignment be
good at Law, or in Equity only. If valid in Equity only, the assignee is
permitted to sue in the name of the person having the legal interest, and to
control the proceedings. The former owner cannot interfere with the prose-
cution, except so far as may be necessary to protect himself against the pay-
ment of costs. After the debtor has knowledge of the assignment, he is
inhibited from doing any act which may prejudice the rights of the assignee.
All acts transpiring between the debtor and creditor, after such knowledge
and without the knowledge of the assignee, will be void as against the latter.
But a case will not come within the principle laid down, unless there be an
assignment of the whole cause of action. ib.
3. The equitable assignee of a chose in action may sue upon it in the name of
the party having the legal title; but he is bound to indemnify such party
against the payment of costs. Henderson v. Welch, 340.
4. An equitable assignee of a judgment has the right to sue a sheriff in the name
of him who has the legal interest therein, to enforce a liability incurred by
such sheriff. Bryant v. Dana, 343.
See MONEY HAD AND RECEIVED; MONEY PAID.
See PLEADING, 6, 9, 10, 12, 20, 23.
A. sued B. in assumpsit, a capias ad respondendum was issued, and B. held to
bail. Upon a return of the cupias ad respondendum of non est inventus, an
action of debt was commenced upon the bail bond, and after the return day
of the summons, the bail surrendered the principal debtor in open Court,
who was taken into the custody of the sheriff. The bail pleaded non est
factum, and two pleas setting forth the surrender, &c. The latter were de-
murred to, and the demurrer sustained by the Court: Held, that the demurrer
was properly sustained, the statute not authorizing the surrender of the
principal after the return day of the process against the bail.
The voluntary branch of the Bankrupt Law of the United States, passed August
19, 1841, is constitutional and valid. Lalor v. Wattles, 225.
BENEFICIAL PLAINTIFF.
See ASSIGNOR, &c. 2-4; Costs, 1, 2; PLEADING, 20.
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