ACCESSORY. (See Aider and Abettor.)
1. RIGHT TO RECOVER IS LIMITED TO THE BREACH ALLEGED. On an
alleged failure to account for and pay over money collected, the
plaintiff was not entitled to a judgment for money which ought
to have been, but was not, collected by the defendant. Hall, &c.
Smith........
604
2. THE OFFENSE OF BETTING ON AN ELECTION IS PURELY STATUTORY,
and may be punished by a civil action, or by an indictment, one
or both; and the civil action is not dependent upon the indict-
ment, nor is the indictment dependent upon the civil action.
Commonwealth v. Avery........................................
3. WHEN A NEW PROMISE IS MADE BEFORE THE STATUTE HAS BARRED
AN ACTION ON THE ORIGINAL LIABILITY, no action can be main-
tained on such new promise, unless it was intended by the parties
to take the place of the original liability, and to discharge the
debtor from liability thereon. Gilmore v. Green......... 772
4. IF THE NEW PROMISE IS MADE AFTER THE STATUTORY BAR IS COM-
PLETE, the action must be upon the new promise. Ibid....... 772
5. SUIT AND JUDGMENT AGAINST ONE PARTNER do not bar proceed-
ings against the other partners.
The common-law rules as to joint and several liability upon con-
tract are in effect abolished by sections 26, 27, 373, 687 of the Civil
Code.
A creditor may, at his election, sue any or all of the members of a
partnership, and a judgment against one or more will not be a bar
to proceedings against the others. Williams v. Rogers....... 776
(See also Pleading and Practice in Civil Actions.)
ADMINISTRATORS. (See Executors and Administrators.)
AGENT. (See Principal and Agent.)
Aider and Abettor-Appeals.
1. AIDER AND ABETTOR OF THE CRIME OF ROBBING A PERSON IN HIS DWELLING - HOUSE, etc., is punishable as a principal under section 4, article 5, chapter 29, General Statutes. Ward v. Commonwealth......... 233
2. Stamper v. Commonwealth, 7 Bush, 612, construing section 2, article 6, chapter 28, Revised Statutes, and holding that aiders and abettors were not punishable under that section, is, in effect, restricted in its application to that section, although not expressly overruled, in this case, in which it is held that an aider and abettor is punishable as a principal under section 4, article 5, chapter 29, General Statutes. Ibid........ 233
1. IF THE PRINCIPAL MAKES A MATERIAL CHANGE OR ALTERATION in a completed obligation, without the knowledge or consent of the surety, and then delivers it to the obligee, the surety is exonerated from liability thereon. Hall, &c. v. Smith........ 604 2. WHEN A BOND IS SIGNED BY PART OF THE SURETIES NAMED THEREIN, and the principal procures the signatures of others in place of those named therein who do not sign it, and then delivers it to the obligee, such of the sureties named therein as signed the bond are not bound thereby, unless they consented to the substitution or to the delivery.
But if the principal had stricken out the names of the sureties named in the bond who did not sign it, and had inserted in place thereof the names of those who signed it in their place, before the delivery and without the knowledge or consent of the obligee, the obligee would have had the right to presume that the substitution or change had been made with the knowledge or consent of all who signed the bond, and in such a case all who signed it would be bound by the bond. Ibid.......
ANCIENT LIGHTS. (See Easements.)
1. MOTION TO SET ASIDE A VOID JUDGMENT must be made and overruled in the lower court before an appeal can be prosecuted to the Court of Appeals to reverse it. (Bullitt's Code, sec. 763.) Bullitt v. Commonwealth.... 74 2. THE COURT OF APPEALS WILL NOT ENTERTAIN JURISDICTION when, conceding all the appellant claims, it has no jurisdiction. Ibid. 74 3. TIME IN WHICH APPEALS MUST BE TAKEN to the Court of Appeals in civil actions under the Code of 1877, secs. 745, 837
On judgments rendered before the Code of 1877 took effect, the
appeal must be taken within three years; and
On judgments rendered after the Code of 1877 took effect, the ap-
peal must be taken within two years, unless, etc., as provided in
section 745 of the Code of 1877.
"Civil cases now pending," as used in section 837 of the Code
of 1877, means and applies to actions then pending in which no
final judgment had been rendered at the time the Code of 1877
took effect, January 1, 1877. Saunders v. Moore................. 97
4. THE COURT OF APPEALS HAS NO JURISDICTION IN PENAL ACTIONS
and prosecutions, unless the judgment be for a fine exceeding $50,
or for imprisonment exceeding thirty days; or if the judgment
be for the defendant, in cases in which a fine exceeding $50, or
confinement exceeding thirty days, might have been inflicted.
(Crim. Code, 1877, sec. 347.)
Appeal by defendant, from a judgment imposing a fine of $50, on
an indictment for selling spirituous liquors to a minor, for want
of jurisdiction, is dismissed. Anderson v. Commonwealth..... 171
5. ASSIGNMENT OF ERRORS MUST SPECIFY THE PARTICULAR ERRORS
RELIED ON, "and no others shall be alleged by the party or ex-
amined into by the court." (Civil Code, sec. 756; Maxwell v.
Dudley, 13 Bush, 403.) O'Reagan v. O'Sullivan........................
6. In cases in which a single issue of fact is involved a general assignment
may be made; as, that the court erred in rendering the judgment
complained of.
But, in cases involving distinct issues, each separate decision com-
plained of must be separately assigned as error.
Where several exceptions to a commissioner's report were overruled,
an assignment that "the court erred in overruling the exceptions
to the master commissioner's report" is insufficient. Ibid.... 184
7. APPEAL FROM ORDER OF COUNTY COURT OF LEVY AND CLAIMS,
rejecting a claim for more than $100, must be taken to the circuit
court within sixty days from the making of the order. (Gen.
Stat., sec. 11, art. 3, chap. 27; Civil Code, sec. 729.) Ditto v.
Meade County Court.....
213
8. THE LOWER COURT HAS NO POWER TO GRANT AN APPEAL after the
expiration of the term at which the judgment was rendered.
City of Bowling Green v. Elrod
216
9. IF AN APPEAL HAS BEEN GRANTED BY THE LOWER COURT, AND
THE APPELLANT FAILS TO FILE HIS ASSIGNMENT OF ERRORS AND
SCHEDULE Within ninety days, or fails to file the transcript in the
office of the clerk of the Court of Appeals at least twenty days
before the first day of the second term of said court, after the
granting of the appeal, the appeal will be dismissed by the Court
of Appeals on motion of appellee. (Civil Code, secs. 737, 738,
740.) Ibid..........................
216
10. IF THE APPELLANT ABANDONS THE APPEAL GRANTED BY THE
LOWER COURT, by failing to file his assignment of errors and
schedule, or by failing to file the transcript in the office of the
clerk of the Court of Appeals, within the time prescribed by the
Code, he may still obtain an appeal from the clerk of the Court of
Appeals, by filing the transcript and his assignment of errors in
his office, within the time prescribed by the Code.
But if the appellant abandons his appeal after superseding the judg-
ment in the lower court, the appellee may, on motion in the Court
of Appeals, have his appeal dismissed with damages. Ibid... 216
11. THE DISMISSAL OF THE APPEAL GRANTED BY THE LOWER COURT
does not bar the right to obtain an appeal from the clerk of
the Court of Appeals within the time prescribed by the Code.
Ibid.......
216
12. WHEN AN APPEAL IS GRANTED BY THE CLERK OF THE COURT OF
APPEALS, a summons should be issued against the appellee, or, a
warning-order, if he is a non-resident. Ibid..............
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216
18. CIRCUIT Court has no POWER TO GRANT AN APPEAL AFTER THE
EXPIRATION OF THE TERM at which the motion for a new trial was
overruled.
An appeal granted at a subsequent term is a nullity. Wright,
Hardin & Hay v. Woolfolk..........
14. IF APPELLANT SHOULD BE PREVENTED FROM FILING THE TRANS-
CRIPT in the clerk's office of the Court of Appeals twenty days
before the first day of the second term of the court after the
judgment was rendered, he may, upon cause shown, obtain from
the Court of Appeals an order extending the time of filing the
Ibid......
NOTE BY REPORTER.-The application to extend the time of
filing the transcript must be made by motion in the Court of Ap-
peals more than twenty days before the first day of the second
term of said court next after the judgment appealed from was
rendered.
15. FILING CROSS-ERRORS IS NOT A WAIVER, BY THE APPELLEE, OF HIS
RIGHT TO HAVE THE APPEAL DISMISSED, because the assignment
of errors and schedule or transcript was not filed within the time
prescribed by the Civil Code.
Assignment of cross-errors in the lower court only places the ap-
pellee in a condition in which he may pray a cross-appeal in the
Court of Appeals. Ibid..........
308
16. ERRORS NOT SUBJECT TO EXCEPTIONS IN THE LOWER COURT CAN
NOT BE CONSIDERED, or made grounds for reversal in the Court of
Appeals. (Crim. Code, secs. 280, 281, 340; Terrell v. Common-
wealth, 13 Bush, 246.) Kennedy v. Commonwealth............ 340
17. THE COURT OF APPEALS SHALL REVERSE 66 FOR ANY ERROR OF
LAW, TO THE DEFENDANT'S PREJUDICE, APPEARING IN THE REC-
ORD."
(Crim. Code, sec. 340.)
This only applies to such errors as the party had a right to
manifest by bill of exceptions, and—
As a bill of exceptions, not only not authorized, but expressly
prohibited by law, is no part of the record, an error in respect to
any of the matters which, under section 281, can not be excepted
to, is not an error "appearing on the record" within the meaning
of section 340. Ibid..........
18. ERRORS MUST BE OBJECTED TO AT THE PROPER TIME-
Alleged errors in not keeping the jury together, and in.permitting
the attorney for the Commonwealth to go out of the record to
make statements concerning the character of the accused in his
argument before the jury, being objected to for the first time
in a motion for a new trial, can not be considered by the Court
of Appeals. Ibid...........................................................
340
19. APPEAL FROM THE JUDGMENT OF A COUNTY COURT, ADMITTING AN
ADMINISTRATOR'S SETTLEMENT TO RECORD, is not authorized or
provided for by statute.
Judgment of the circuit court, dismissing such an appeal for
want of jurisdiction, is affirmed. Turner v. Johnson County
20. AN APPEAL FROM THE ORDER OF A COUNTY COURT, PROBATING OR
REJECTING A WILL, must be taken to the circuit court within
five years after the rendering of the order; and in this there is no
saving in favor of infants. (Secs. 28, 38, chap. 106, Rev. Stat.;
secs. 27, 37, chap. 113, Gen. Stat.) Arterburn's ex'rs v. Young,
21. AN APPEAL FROM THE JUDGMENT OF A CIRCUIT COURT, ORDERING
A WILL TO BE PROBATED OR REJECTED, to the Court of Appeals,
must be taken within one year after the decision in the circuit
court; and in this there is no saving in favor of infants.
But an adult or infant, when not a party to the proceedings in the
circuit court, in addition to the right of appeal from that court
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