[The Head-notes, except those followed by ("R,") are made by the
Judges.]
ACCIDENT-See Arbitration and Awards, 10.
See Novation,
"Ordinance of 1865, 2.
ACQUEDUCTS-See Water-courses.
If a widow die pending a suit by her for the homicide
of her husband, the right of action for such homicide
survives to the children, and in such last suit the
measure of damages is the injury to the children, to
be measured, as in the case of the widow, by a reason-
able support for them, according to the condition in
life, etc., of the father, and according to the expecta-
tion of his life as found by the mortuary tables.
David vs. S. W. R. R. Co........
ACTS OF CONGRESS.
See Removal of Cases to U. S. Courts.
ADMINSTRATORS AND EXECUTORS.
1. M., as the administrator of H., in January, 1865,
sold, at public sale, under an order of the Court of
Ordinary, certain parcels or tracts of land, as the pro-
perty of his intestate, a portion of which were pur-
chased by one of the distributees of said estate, in his
own right, and a certain other portion thereof was
purchased by said distributee as the guardian of the
other distributees of said estate, and the administra-
tor took the individual notes of the purchasers, in his
own right, and as guardian, for the amount for which
the land sold, without security, and executed deeds
conveying said land to the purchasers thereof, and af-
terwards filed a bill, alleging that at the time he sold
the land, he took the individual notes of the purcha-
sers, and executed the deeds of conveyance, that he
believed that the assets of the estate, on final distri-
bution, would be sufficient to cover the amount for
which the land sold, as the distributive shares of the
purchasers thereof, but that the emancipation of the
slaves belonging to said estate, had left the said pur-
chasers and distributees with scarcely any means to
pay the purchase-money for said lands, save the land.
itself, and the prayer of the bill is, that the purcha-
sers of said land may be restrained, by injunction,
from selling the same, and that the deeds executed to
the purchasers by the complainant, as administrator,
may be cancelled, and that the purchasers of the land
sold at the administrator's sale may be decreed to con-
vey the lands back to the administrator. It appears
on the face of the complainant's bill, that there were
other lands and other property belonging to said es-
tate, the amount and disposition of which, by the ad-
ministrator, is not shown:
Held, That since the vendor's lien has been abolished in
this State, the administrator has no equitable lien on
the land for the unpaid purchase-money, and that he
does not make such a case by his bill as entitles him
to the relief prayed for, and that the demurrer to the
bill was properly sustained by the Court below. Ma-
hone vs. Howard et al..........
2. Where an administrator was sued in a county differ-
ent from that in which he resided, and he acknowl-
edged service of the writ and filed no plea of any
kind, although the suit was up on an open account
over twenty years old, and judgment was taken by
default, as on personal service, without proof:
Held, That whatever may be the effect of such a judg
ment, as against the administrator, personally, it does
not bind the third persons or the estate sought to be
charged. And the surety on the administrator's bond
has such an interest in setting the same aside that he
may file a bill to enjoin its proceeding against the ef-
fects of the estate, and for the purpose of having it
declared void as against said estate, and as against
himself as the surety for the faithful administration
of the same. Washington vs. Barnes......
3. It is incumbent on the executors, in order to discharge
themselves from accounting for the money received by
them, by the sale of the testator's property, to show
to the satisfaction of the Court and jury that the
money in their hands had, in good faith, in the per-
formance of their duty as trustees, been received and
invested by them, in Confederate money, at a time
when a prudent man would have done so in the man-
agement of his own affairs, and that the question
whether the defendants had so acted, was a question
for the jury, under the charge of the Court. Smith
et al., vs. Byers et al.....
4. As a general rule, the administratrix of the intestate
is entitled to the possession of the property which he
had in possession at the time of his death; but when
the property in controversy had been placed in the
hands of a Receiver under the order of a Court of
Chancery, at the instance of a party claiming the pro-
perty under an adverse title to that of the intestate,
and before there was any administration on his estate,
there was no error in the Court below in refusing to
order the Receiver to turn the property over to the
complainant in view of the facts presented by the re-
cord. The complainant can be made a party to the
equity cause already pending, and in that suit, assert
the right of her intestate to the property, whatever
the same may be, and thereby save a multiplicity of
suits. Johnson vs. Stewart et al.........
549
5. Where a summons of garnishment is served upon an
administrator before the twelve months have expired:
Held, Under section 3498 of the Code of this State,
such garnishment may be served under the provision
of law which postpones his answer until he is enabled,
from the administration of the estate, safely to answer
the same.
The effect of such garnishment is to retain in the hands
of the administrator the property finally to be ascer-
tained and disposed of by the Court on a review of
all the priorities and equities of existing claimants,
under the rules of law, and is not in conflict with the
section 2507 of the Code, prohibiting suit to recover
a debt due by decedent until the expiration of twelve
months from his qualification. Sapp vs. McArdle... 628
In a suit on a note made in 1864, when there was no
plea of the general issue under oath, but there was a
plea of the Ordinance of 1865, admitting and setting
forth a consideration for the note, but setting up that
the plaintiffs ought not to recover therefor more than
$100 00, it was error in the Court to charge the jury
that they might scale the note its full amount.
ridge et al. vs. Fry..........
ADULTERY. See Criminal Law, 23.
AFFIDAVIT. See Attorneys at Law.
AGENCY. See Principal and Agent.
An order for attorney's fees and alimony will not be re-
viewed by the Supreme Court pending the action of
divorce. (R.) See end of Report. Ozmore vs. Oz-
1. Under section 3429 of the Code, either the plaintiff
or defendant may, as a matter of right, amend his
pleadings at any stage of the cause, and the fact that
the case is before the jury and part of the argument
had on the evidence, does not render it too late to
amend. If, however, the amendment be immaterial,
and be refused by the Judge, the refusal is not a
ground for a new trial. Gay vs. Peacock et al......... 84
2. A motion for a new trial, including the brief of tes-
timony, may be amended in the same terms as other
proceedings in the Superior Court. Vanover et al.,
vs. Turner......
3. A new plaintiff, suing for the use of the former plain-
tiff, may be made by amendment. And the amend-
ment is sufficiently certain, if the pleadings contain
sufficient to enforce the verdict. (R.) Winter vs. Mat-
thews, Burke & Cameron.......
From the facts disclosed by the record, there was no er-
ror in the Court below in refusing the motion for a
continuance for the purpose of allowing Lane to tra-
verse the return of the Sheriff as to the service of the
bill on him, or in refusing to allow the Sheriff's re-
turn of service to be traversed after the defendant,
Lane, had appeared in the cause as a defendant, and
participated in the litigation. Lane et al., vs. Partee
and wife.......
APPROVAL OF GOVERNOR.
See Constitutional Law, 5.
1. When the arbitrators failed to furnish the party who
objects to the award with a copy, as required by sec-
tion 4183 of the Revised Code, but the party appeared
at the first term of the Court and filed his objections
to the award, and did not show that he was taken by
surprise, or lost any right by not having notice of the
award, he is not injured by the failure of the arbitra-
tors to furnish the copy, and the award will not, on
that ground, be set aside. Anderson vs. Taylor....... 10
2. An award will not be set aside for uncertainty, when
it is capable of being made certain. Ibid.
3. The award in this case is not so outrageous as of it-
self to constitute conclusive evidence of fraud or cor-
ruption. Error in judgment in the arbitrators is not
a sufficient ground for setting aside an award. Nor
will it be set aside on the ground that it is contrary
to evidence, if there is any evidence to sustain it.
Ibid.
4. Arbitrations are favored by the Courts, and he who
attempts to set aside an award must comply strictly
with the requirements of the statutes, or he will not
be heard. Ibid.
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