action.; but if he adhere to the original cause of action, he may add a count substantially different from the dec- laration.
3. In an action of trover against one, charging him, as trustee, &c. the plaintiff may amend by striking out the words "as trustee," &c. Ibid.
4. A plaintiff who has notice of a fatal defect in his decla- ration at the appearance term of the appeal, and makes no motion to amend until the second term, and when the cause is before the Jury, is too late, and cannot then amend, Dorster vs. Arnold...
5. It is competent for all Courts to correct errors and mis- takes in their own minutes, wherever the same is brought to their notice, provided the rights of third per- sons be not prejudiced. Barefield vs, Bryan...
See Equity, 22, 23, 40. Megality, 2. Pleading, 3. Practice Superior Court, 5, 6. Practice Supreme Court,3, 4, 5. Verdiet, 2.
Resolutions relative to his death.
1. Where an appeal is taken from the Court of Ordinary to the Superior Court, under the Act of 1805, which re- quires the appellants to give security to the Clerk for all costs which may accrue by reason of such appeal: Held, that an acknowledgment taken by the Clerk that the appellants and their security were jointly and severally bound to the appellees for the payment of all costs which should accrue upon the appeal, in terms of the Stat-
ute, was a good and valid appeal, according to the true intent and meaning of the Act of 1805; and that the appellants and their sureties would be bound for the costs accrued by reasou of the appeal. Hogg et al. vs. Mobley
2. Where there are several parties, plaintiff or defendant, and only one appeals under the Act of 1839, the party not appealing is bound by the first verdict; but as the whole record is taken up by the appeal, the plaintiff is not entitled to have execution against the party not ap- pealing, until the final trial on the appeal. Allison vs. Chaffin...
3. A judgment rendered in the appellate Court against the parties not appealing, is irregular, and should be va- eated.
See Amendment, 4. Claims, 2. Judgment, 1. Practice Superior Court, 4.
1. Upon a motion to set aside an award, made by an um- pire, the Court will not consider the irregular and im- proper acts of the arbitrators. Crabtree vs. Green....
2. When arbitrators disagree, and the decision devolves upon an umpire, clothed with all the powers of the ar- bitrators by the submission, his duties are not limited to the determination of the questions upon which they disagreed, but extend to all the questions submitted. Ibid.
3. It is not a valid objection to an award, deciding that land in dispute belongs to one of the parties, that it does not directa conveyance of the land to be executed. Ibid.
4. It is not necessary that an award of lands, which the sub-
mission directs to be made in writing, under the hands of the arbitrators, should be under seal. Ibid,
5. It is not necessary to the validity of an award, that the umpire give reasons for his decision. Ibid.
6. When questions of law are distinctly submitted, the de- cision of the arbitrators will be final, unless it appear on the award that the arbitrators, intending to decide according to the law, have plainly mistaken what it is, and have acted on an erroneous rule of law. Ibid.
7. An umpirage will not be set aside in a case where the losing party was notified that the arbitrators had disa- greed, and that the papers were in the hands of the um- pire to decide, and when he was asked by the umpire if he desired him to re-hear the case, and he replied that - he did not desire it, but was satisfied that he should pro- ceed to determine according to the papers in his hands, on the ground that such party was not notified of the time and place of making, and was thereby denied the right of appearing, examining witnesses and submitting evidence. Ibid.
8. An award of lands is sufficiently certain, if it describe the land by metes and bounds, land-marks and contigu- ous possessions, accompanied with a plat. Ibid.
9. An award must generally cover all the matters submit- ted; but if the words of the award are not co-extensive with the submission, it will still be good, if it decides all the matters actually in dispute between the parties. Ibid.
ARTICLES OF SEPARATION.
See Husband and Wife, 4, 5, 6.
See Corporations, 24.
VOL VIII 73
1. Affidavits, under our attachment laws, should be signed by the magistrates before whom they are taken, with the addition of their official description. Birdsong & Sledge vs. McLaren....
2.. Where the attachment bond is made payable to the indi- vidual members of a firm, where the attachment is sued out against the firm, and it does not recite that the obli- gees compose the firm, the bond and attachment are both void. Ibid.
3. An attachment, ordinarily, cannot issue for a partner- ship debt against one of the partners, individually, and be levied on the partnership property, on the ground of the non-residence of the defendant in attachment. Secus,-. if the non-resident partner or partners were the only. survivors of the firm. Wiley & Co. vs. Sledge.......
4. In order to sue out an attachment in behalf of a firm, one partner has the right to execute a bond in the name of the firm. Dow, Wilson and another vs. Smith & Co.
5. A general judgment creditor cannot form an issue and traverse the truth of the affidavit of the attaching creditor, after judgment rendered on the attachment, and on à mo- tion to distribute money belonging to the defendant. Ibid.
1. Where a scire facias is issued on a bail bond against the principal and bail jointly, and the Sheriff returns “non est," &c. as to the principal, the creditor may proceed . to enter up judgment against the bail. Ford vs. Lane.
2. No assignment of the bail bond is necessary by the She- riff to the creditor, at whose instance the party was ar-
rested. Itinures to his benefit, under the Statute of this State, by operation of law merely. Ibid.
1. A, as the agent of B, deposits a sum of money with C, with request that he will keep it until B returns home, (he being absent from the State,) and then pay it to him, which C agrees to do: Held, that C is a depository, and not liable to be sued by B for the money until after a re- quest. Montgomery, adm'r, &c. vs. Evans..
See Corporation, 1 to 7. Evidence, 7,
1. Under the Bankrupt Act of 1841, when a discharge is sought to be attacked for fraud, a prior reasonable no- tice is required to be given, specifying the grounds of fraud; and the notice may be amended at any time be- fore the final trial, provided a sufficient time elapse to enable the bankrupt to prepare to rebut it. Flournoy vs. Newton.
2. The transfer of his effects by a bankrupt, in contempla- tion of bankruptcy, is a fraud upon the law. Ibid.
3. A bankrupt may appropriate so much of his effects as may be necessary to raise the means to maintain his ap- plication in bankruptcy. lbid.
See Corporation, 1 to 29.
1. Bastards may be made legitimate and capable of inher-
« PředchozíPokračovat » |