The allotment of exempted property may be renewed from time to time, so as to keep constantly in possession of the citizen $500 worth of personal property for the comfort and support of himself and family. Frost v. Naylor, 68-325. A chose in action, if selected by the owner, may be allotted as a part of the personal property exemption, secured to the citizen by Section 1, Article X of the Constitution. Ibid. A, to whom certain articles of personal property had been allotted as his personal property exemption, sold and transferred the same to B, for a valuable consideration; afterwards, the articles having been seized by a constable, under an attachment against A's property, B rescinds his contract with A, and the property was sold by the officer: Held, that in a suit against the officer, A, the plaintiff, had a right to recover the value of the property at the time of its seizure. Duvall v. Rollins, 68-220. Persons appointed under Act of 22d of August, 1868, to lay off a homestead and allott personal property exemption, must be sworn, and it must appear that they were sworn; and they must make such a descriptive list of the personal property as will enable creditors to ascertain what property is exempted; and when these requirements are not complied with, their proceedings may be treated as a nullity by creditors. Smith v. Hunt, 68-482. An officer who levies upon the personal property of the defendant in the execution, and refuses to lay off to such defendant upon demand, his personal property exemption, is guilty of a misdemeanor. State v. Carr, 71–106. The lien acquired by the levy of a justice's execution on the 27th of February, 1868, is lost by the plaintiff's taking out a new execution on the first day of August following; and sale under the latter must be made subject to the defendant's right to a homestead. Martin v. Meredith, 71--214. The acceptance of a homestead laid off in the life-time of her husband, by a widow, is no bar to her right of dower in the other lands of her husband, outside of such homestead. McAfee v. Bettis, 72-28. A purchaser of property exempt from execution under the Homestead Act, cannot be held liable as executor de son tort; and an assignment of such property by a debtor without valuable consideration is not, therefore, fraudulent. Winchester v. Gaddy, 72-115. The allotment of "an interest of one hundred dollars in his half of the mill," as the remainder of a homestead, is so vague and indefinite as to be void, and confers no exemption from execution. It is a fatal defect to a re-allotment of a homestead, for it to appear that the appraisers were not sworn. Coble & Ross v Thom, 72-121. It is the duty of a sheriff to lay off the homestead of the defendant in the execution, and to sell the excess in a prudent and just manner, so as to realize a fair price: Therefore, where a sheriff sold, at the instance of the defendant, several parcels of land en masse and subject to the lien of the homestead, it was held, that such sale was fraudulent, and might be avoided by a creditor of such defendant, not present, nor consenting to the sale. Andrews . Pritchett, 72 135. The homestead is not good against judgment for purchase money. Durham v. Bostick, 72-353; Whitaker v. Elliott, 73-186. The right to a homestead is given to the minor children of an insolvent father, regardless of their pecuniary circumstances. Allen v. Shields, 72-504. Quere?-Whether since the Act of 1871-'72, Chapter 95. a valid sale of an infant's land can be made without a personal summons. Ibid. When an administrator sells land by an order of court to pay the debts of his intestate, he must lay off a homestead for the parties entitled thereto. His failure to do so does not effect their right to such homestead. Ibid. A defendant in execution, whose homestead has been allotted to him, by appraisers appointed by the sheriff, and who had appealed to the township trustees from such allotment, and afterwards withdrew his appeal, expressing himself satisfied, will not be permitted after the sheriff's levy on the excess has been returned to court, by a motion in the cause, to set aside the levy and call in the execution, because one of the sheriff's appraisers married a cousin of the plaintiff's wife. Such objection, to avail the defendant, must be made in apt time to the sheriff; and, if not allowed by the sheriff, it ought to have been taken advantage of in an application to the township trustees; and, if not allowed by them, it ought to have been taken advantage of by a petition, as in other special proceedings. Chambers v. Penland, 74-340. A plaintiff, after judgment in her favor, has no right to the defendant's land sold, without first having his homestead laid off. The excess only, after a homestead has been assigned to the defendant, is subject to execution sale. Waters v. Stubbs, 75--28. A borrowed of B a sum of money, for the purpose of paying for a lot, the title to which was made to A and his wife. In an action against A for the money borrowed: Held, that the money so borrowed was no lien on the lot so purchased, and that A was entitled to his homestead therein. Brodie v. Batchelor, 75—51. The reversionary interest in a homestead cannot be sold by an administrator, in a petition to make real estate assets, during the minority of one of the children of the intestate. Hinsdale v. Williams, 75--430. In an action by a debtor for injunction against a judgment creditor, about to sell property under execution, upon which there are mortgages, which the judgment creditor claims to be fraudulent: Held, that the mortgagees should be made parties to the action, in order that the rights of all concerned may be determined in one action. Gaster v. Hardie, 75-460. The application for a re-assessment of a homestead by the township board of trustees must be made before the sale of the excess by the sheriff. Hepinstall v. Perry, 76--190. The lien created by a levy made under execution, prior to the adoption of the Constitution of 1868, is lost by a failure to take out a ven, er. and the issuing of an alias fi. fa. after the Constitution went into effect. James v. West, 76-290. Where land is sold at execution sale " subject to homestead," the purchaser buys subject to that exception. Barrett v. Richardson, 76-429. Where, in an action to foreclose, a mortgage executed by the defendant in 1861, it appeared that the defendant had obtained a discharge in bankruptcy in 1878, and that the mortgaged premises had been allotted to him as a homestead by proceedings in the Bankrupt Court: Held, that the plaintiff was entitled to a decree of foreclosure. Brown v. Hoover, 77-40. Where a sale of land was made by an administrator under an order of court, for the purpose of making real estate assets, in a proceeding to which certain infant heirs-at-law were not made parties by personal service of process, which land was afterwards set apart to such infants as a homestead: Held, that the purchaser was entitled to have the sale vacated, the cash paid as part of the purchase money refunded, and his note given to secure the residue of the purchase money cancelled. Shields v. Allen, 77-375. TITLE XII. OF THE COSTS IN CIVIL ACTIONS.a SEC. 276. When allowed of course to SEC. 288. Costs in civil actions by the the plaintiff several ac- 277. When allowed to defendant. 282. Interest allowed from ver- 284, Fees of clerks, sheriffs, &c. 286. Costs against infant plain- 287. Costs in action by or against ? 276.—When allowed of course to the plaintiff--several actions on one instrument. Costs shall be allowed of course, to the plaintiff, upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial; a This title was repealed without any saving clause, by Section 16 of Chapter 139 of the Acts of 1870-'71, but, as will be seen, different portions of it have been amended since that repeal. I cannot think that it was the intention of the legislature to repeal the very excellent general provisions which it contains in regard to the manner in which costs shall be assessed, and in what cases. So great is the necessity for these provisions that within a very short time, they have been cited in two instances, by legal gentlemen of considerable prominence upon the circuit, and while these pages are going through the press, have been informed, that one of its sections has been cited as authority in a brief offered in a matter now pending. These facts show how important are its provisions. The legislature, no doubt, intended to repeal the specific fees allowed by it, but it is more than probable that the repeal of the general Where defendants, in a proceeding to make real estate assets. set up title to the land, and the issue is found against them, all the costs should be taxed against them except that of filing the petition. Noble v. Koonce, 76-405. 2. In an action to recover the possession of personal property; 3. In the actions of which a court of a justice of the peace has no jurisdiction ; [Sub-division 4 is repealed, and the following substitute adopted in Section 2, Chapter 119 of Acts of 1874-75:] 4. In an action for assault, battery, false imprisonment, libel, slander, malicions prosecution, criminal conversation or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more cost than damages. When several actions shall be brought on one bond, recognizance, promissory note, bill of exchange or instrument in writing, or in any other case, for the same cause of action against several parties, who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff, in more than one of such actions, which shall be, at his election; provided that the party or parties proceeded against in such other action or actions, shall, at the commencement of the previous action or actions, have been within the State and not secreted. No part of the costs of an action can be taxed against the party recovering judgment. Wall v. Covington, 76-150. See a very full discussion of the principle and advantages of this title by Rodman, J., in Hyman v. Devereux, 65–588. 277.-When allowed to defendant. Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. powers, and limitations of discretion in the taxation of costs, were included in the repeal by an oversight, not at all unusual in legislative proceedings. Under the common law procedure, such provisions were scarcely neces sary from the nature of the actions cognizable in those courts; but the enlarged powers conferred upon them, and the necessity of making their judg ments definitive of all the rights of the parties to the actions, demand a larger power and the more extended discretion, which was conferred by the provisions of this chapter. With these views, after careful consideration, and consultation with leading members of the profession, it has been decided to reprint the general seotions of the chapter in another type, so as to be readily distinguishable from the unrepealed text of the Code, in the hope, among other things, that it may be called to the attention of the legislature, and re-enacted. Wall v. Covington, 76–150. See § 276, ante. Swaim v. McCulloch, 75-495. 278.-When allowed to either party, in the discretion of the court. In other actions, costs may be allowed or not, in the discretion of the court. In all actions where there are several defendants not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal to any court shall be in the discretion of the court: 1. When a new trial shall be ordered; 2. When a judgment shall be affirmed in part and reversed in part. Mitchell v. Henderson, 63-643; Sedberry v. Com'rs of Chatham Cc., 66-486. 282.-Interest allowed from verdict or report filed. When the judgment is for the recovery of money, interest, from the time of the verdict or report until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto. 1283.-Costs-how to be inserted in judgment-adjustment of interlocutory costs. [Amended by Acts of 1869-'70, Chapter 192.] The clerk shall insert in the entry of judgment, the sum of the allowances for costs, as provided by law, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of printing the papers for any hearing, when required by a rule of the court. The disbursements shall be stated in detail. Whenever it shall be necessary to adjust costs in any interlocutory proceeding in an action, or in any special proceeding, the same shall be adjusted by the clerk of the court to which the proceedings were returned, except in those matters in which the allowance is required to be made by the judge. {284.-Fees of clerks, sheriffs, &c. The fees of the clerk, sheriff and other officers of the court, shall be as prescribed by law. |