TERM, 1871.]

Ward v. Carlton et al.

assets of the debtor, to the end that the same shall not be disposed of as will allow the debtor to reap the fruit of his own ingenuity, and place his effects beyond the reach of an execution. When the defendant bonds the property, the plaintiff looks not to the property attached, but to the bond, for a satisfaction of any judgment he may obtain. The object of the eleventh section, of the act of March, 1867, was to allow the fact to be determined whether the plaintiff was entitled to the cumulative remedy of attachment for the purpose of securing his debt. Before the enactment of this law, the allegations of the affidavit could not be put in issue. The individual who did not hesitate to falsify the truth, under the provisions of the old law, was furnished with a more efficient remedy for the collection of his debt than the man who was not willing to perjure himself. To obviate a discrimination of this kind, the act of March 7, 1867, was passed, and the debtor allowed to show that, though poor, he was not fraudulently conveying his property for the purpose of hindering and delaying the payment of his debts, or doing any other disreputable act. The exigencies of the debtor are very often of such a character that it would be ruinous to him to be deprived of the use of his personal property. Take, for instance, the planter at that period when the crop is being put into the ground; his property is attached by an unscrupulous creditor who knows that his debtor must bond the property or suffer ruin, (as the time for planting will have passed before a court meets to hear his cause), and now, because he does bond his property and attempt to save himself from ruin, the plaintiff sets up that this act of itself precludes the defendant from questioning the truth of the affidavit. If this theory be correct, the debtor is as much at the mercy of an unscrupulous creditor, since, the passage of the act of March 7, 1867, as he was before its enactment. We think the object of the law was to remedy just such hardships, and we shall not indulge in a construction which would establish all the rigor of the old law. In our opinion, the defendant may show at any time, before judgment, that the

Ward v. Carlton et al.

[JUNE

original affidavit is not true; and when this fact is established, the cumulative remedy of attachment falls to the ground, and the cost of seeking it belongs not to the defendant but to the plaintiff.

The view we have taken of this case renders it unnecessary for us to treat at length of the questions raised by the defendants. The question presented is not one of evidence, but of law. All the rulings complained of appear as fully as though a bill of exceptions had been taken; in short a bill of exceptions could not present a single point that does not appear of record. Where such is the case, a bill of exceptions is not necessary; nor is it necessary to make a motion for a new trial. The object of this suit was to collect the amount due from Hilliard to Ward, and not to ascertain whether the truth of the affidavit could be put in issue after the defendant in attachment had given bond. There is no final judgment between the parties upon the instrument on which the suit is founded. Whether Hilliard owes Ward anything is still at issue in the court below, and this question must be settled in favor of one or the other before there is a "final judgment" to appeal from, as none but final judgments can be heard in this court on appeal.

The appeal is dismissed, and the cause remanded.

INDEX.

ACKNOWLEDGMENT.

See Deeds, 2, 3, 4.

ACTIONS.

See Corporations, 2, P. actice, 24.

ADMINISTRATORS.

1. AUTHORITY OF.-An administrator has no authority to sell the real property of his intestate, except in the manner prescribed by statute. Burgauer, adm'r., v. Laird, 256.

See Parties to action, 1; Constitutional law 10.

ADMINISTRATION.

1. LETTERS OF, WHEN NOT EVIDENCE.-Letters of administration issued by a clerk of the probate court, acting under authority of the Confederate State Constitution of 1861, after the inauguration of the State provisional government of 1864, are void, being issued without legal authority, and are not admissible in evidence. Page, adm'r. v. Cook, adm'x.

122.

2. AUTHENTICATION OF CLAIMS.-Verification of claims against the estate of a deceased person, by one cognizant of the facts, under act of March 5, 1867, or by agent or attorney, under act of March 13, 1867, is sufficient and these acts are not in conflict with each other. Mason v. Bull, Ellis & Co. 164.

3. PURCHASERS AT SALE, NOT TRESPASSERS.-Although the sale is invalid and void, without an order of court for that purpose, yet the purchaser, having gone into possession by consent of the administrator, is not a trespasser or wrongfully in possession, and could not be subject to a suit unless he refused to surrender upon demand. Burgauer, adm'r. v. Laird.

256.

4. INTERPOSITION OF EQUITABLE POWERS.-While a court of chancery will not assume to take charge of an administration going on in the court of probate, yet there may arise cases of fraud or waste which would call for the interposition of equitable powers not exercised by courts of probate. Freeman et al. v. Regan. 373.

5. SAME.-Where the removal of the administrator, by the probate court, would not show the fraud, nor cancel or shorten the process of cancellation of a deed obtained from the administrator by fraud and duress, nor the grounds of defense be made better or worse, a court of equity, having power to control property any proceeds that may result from its decree, may interpose. Ib.

6. CUSTODY OF ESTATES.-Upon the death of a person his estate passes into the custody of the law, to be administered for the benefit of creditors. Mirick v. Britton. 496.

7. AUTHENTICATION OF CLAIMS.-An affidavit, in the usual statutory form, to a note given by a firm, to the effect that nothing has been paid upon it, though not alleging that the amount was due from the estate of a deceased member of the firm, is a sufficient legal authentication as against the estate of the deceased member. Smith & Bro. v. Van Gilder, adm'r.

527.

See Commissioner of Deeds, 1. Partnership, 1. Probate court, 2. Sales, 3, 4.

1.

AFFIDAVIT.

See Administration, 7.

AGENCY.

See Agents. Trusts and Trustees.

AGENTS.

FRAUDULENT ACTS OF.-It is fraud on the part of an agent entrusted with money for a specific purpose, to attempt to control such means for his own benefit and in his own name, and any profit or advantage resulting therefrom reverts in equity to the principal.

2. SAME.-A party purchasing lands with his own money, under an agreement that such purchase should be made, will not be permitted to hold them against the beneficiary. Ib.

1. WHAT WILL SUSPEND.-Conquest and occupation by a foreign foe can, alone, excuse or suspend a citizen of the State from allegiance to the United States.

Penn, et al., v. Tollison, 545.

See Constitutional law, 16.

1.

AMENDMENTS.

WHEN ALLOWED.-Under the Code of Practice, the court may permit "amendments at any time in furtherance of justice," and in the exercise of that discretion, this court will not interfere, on appeal, unless it has been grossly abused. Ford v. Ward, 360.

2. CONSTRUCTION OF CODE.-Under section 8, Code of Civil Practice, it is competent for the court to substitute a several for a joint cause of actionmake changes of parties-insert allegations necessary to a full and fair investigation of the merits, and no objections to such amendments will avail a litigant, unless such changes have misled a party to his prejudice, and not then, unless the party misled show to the court in what respect he has been misled or prejudiced. King v. Caldwell, 405.

1.

See Practice, 24, 27; Recognizance, 1.

ANSWER.

WHEN, AS TO MATTERS WITHIN KNOWLEDGE.-Where the defendant answers as to matters within his own knowledge, and the answer is directly responsive to the allegations of the bill, it requires two witnesses, or one witness with corroborating circumstances, to overturn the answer. Barclay, Ex'r., et al. v. Dawson, Adm'r, 417.

2. WHEN AS TO FACTS NOT WITHIN KNOWLEDGE. -Where defendant answers as to matters not within his knowledge, one witness, on the part of the plaintiff, is sufficient to overthrow the answer. Ib.

See Equity Practice, 1.

APPEALS.

1. FROM EXECUTIVE OFFICER.-Appeals only lie from one court to another; not from an executive officer to a court. Allen, ex parte, 9.

peal will lie.

2. JURISDICTION-Prohibition.-Where there is no final judgment, no apProhibition is the only remedy before determination, where courts are proceeding without jurisdiction. Hanger & Co. v. Keating, Adm'r., 51.

3. WHAT NECESSARY FOR.-To entitle a party to an appeal to this court, there must have been a final decree rendered for or against him in the circuit court. Foley, et al. v. Whitaker, Er'r., 95.

4.

PRACTICE ON, FROM JUSTICES' COURTS.-Upon appeal from a justice of the peace, the circuit court does not review the case as upon error, but tries it anew as if no judgment had been rendered, and no appeal can be taken except from the judgment. Tuohy & Green v. Rector, 315. 5. How PROSECUTED.-Under the Code of Civil Practice, to give this court jurisdiction on appeal, the record should disclose the fact, either that a motion was made for an appeal during the term at which the