See Debtor and Creditor, 1. GIN. ib. INDORSEMENT. See Writ. INDORSER. ib. 2. Where the indorsee of a note sues the maker and indorser jointly, under the act of 1828, defining the liability of indorsers, if he discontinue as to the maker, he not being found, it is a discontinuance as to both. Philips v. Jordan. 38 3. B. and A. signed, as indorsers, under the name of T, whose name was there before, the paper being blank. It was afterwards filled as a note, payable to B. and A.; the indorsements were filled, making them first indorsers, and T. as second. R., the holder, obtained judgment, at law, against each, as indorsers; T. satisfied to R. the demand, and obtained a transfer of the judgment against B and A., who then filed their bill for relief against it. T. shewed that, although judgment had been rendered against him, his indorsement was, in fact, a forgery, and he claimed the amount: It was held, that the judgment against T. was conclusive of 'T.'s liability as between R. and him, but was not evidence as between him and B. and A., they not being parties nor privies, but strangers. Brahan and Atwood v Ragland et al. 247 4. It was immaterial to B. and A. whether the signature of T. was genuine or not, they having no equity against him. ib. 5. The liability of B. and A was as first indorsers. 6. Where one pays money which another was equally bound to pay, and received an equal benefit, contribution will be allowed. ib. ib. 9. Where the indorser of a promissory note holds himself liable to the indorsee, "should the maker fail," this is a different contract from a general indorsement, and must be specially declared on.-Davis & Co. v. Campbell. 319 291 1. In an action against the indorser of a pro missory note under the statute of 1812, 11. And proof of the indorser's subsequent jndgment by default final may be rendered without a jury. -Malone & Co. v. Hath 10. The word fail," in such indorsement is is of larger import than "refuse," and is equivalent to inability or insolvency of the principal, and such fact must be shewn by the indorsee, as ascertained by suit or oth erwise. ib. promise to pay is inadmissible, the declaration not being adapted to such a state of fact. ib. away. : INDEX. INSOLVENT ESTATE. See Executors and Administrators, 2. INTEREST. ib. 1. The damages given on the affirmance of judgment, in the circuit or supreme court bear interest till paid.-Sanders & Fenwick v. Rives. 509 6. Under the act of 1819, a judgment on mo tion may be had against the sureties of a sheriff, on notice to the sheriff alone.Neal et al. v. Caldwell. 134 7. Where the court below has erred, but the record shews, that, on another ground the plaintiff is not entitled to recover, the court will not reverse a judgment obtained by the defendant below. -Johnson, Ad. v. Wren. 172 8. On a note payable at a future day, with interest from the date, if not punctually paid, judgment may be properly rendered for the principal, with interest from maturity. Boddie v. Ely. 182. 10. Where an error was committed in the court below, but the appellant has suffered no injury thereby, the judgment will not be reversed. - M'Millian v. Wallace. 11. In trials of title, the parties are entitled to a jury of free-holders, but that right must be claimed in the court below, and it is not sufficient to reverse the judgment, that the record does not shew that the jurors were such - Hamner v. Eddins 192 109 12. And the judgment though informal, if it adjudges to the plaintiff the damages found by the jury, and a writ of possession for the land is sufficient. ib. 2. On a note payable at a future day, with interest from the date, if not punctualty paid, judgment may be properly rendered for the principal, with interest from maturity.-Boddie v. Ely. 182 See I, Declaration, 4. 5. JUDGMENT. 1. Judgment by default final may be render 14. A judgment by default against an execu ed against an indorser, without a jury.Malone & Co. v. Hathaway. 29 2. A judgment in assumpsit, will not be reversed, because rendered as for debtand damages, instead of damages only. 3. Where a judgment is improper, but produces the proper result, it should not be reversed.-Philips v. Jordan. 285 ib. tor and return of execution, " no property found," are conclusive evidence of a devastavit, to the amount of the judgment in a second action by the same plaintiff against him, in his individual capacity, suggesting a devastavit.-Garrow v. Emanuel. 33 15. Although pleas are on file, judgment of nil dicit may be rendered, and such judgment authorises the presumption that the defendant was present by himself or counsel, and did not attempt ro sustain his pleas. Bryant v. J. & T. Simpson, surv. part's. 339 4. Judgment of affirmance may be rendered in this court on certificate, in cases of appeal, as well of writs of error.-Adams v. Adams. 57 5. Under the act of 1811, making it penal to mark unmarked cattle, &c.; a judgment 16. Where, under the statute of 1818, maker final on demurrer cannot be rendered; the penalty can be recovered only on a trial on the merits, on proof or confession of the guilt of the defendant.-Reagh v. Spann.100 and indorser are joined in the same action, and the maker appears and continues the case as to him, and there is judgment by default against the indorser, this judg 2. After verdict, in criminal cases, it is presumable that the names of the jurors, specified in the venire facias, have been drawn according to law, particularly when the writ expresses that they were "good and lawful jurors, duly appointed as the statute requires."-State v. Williams. 454 3. It is not necessary that the return of the venire facias should be technically stated in the record; if it appear that the writ issued and that the grand jury was composed of persons named in the writ, it will be presumed they are the same, and it is immaterial whether they were summoned or not. ib. 4. În a capital case, it is not ground of peremptory challenge of a juror, that he has formed, upon eommon report, and expres. ed an opinion of the guilt of the prisoner, if the juror believes that such opinion would have no influence in the formatiou of his verdict, should the evidence on the trial be different from the report of the facts. ib. 5. After a juror is accepted and sworn, the court cannot discharge him from the panel, without the consent of the prisoner, for any cause in esse at the time he was sworn although the cause may have been discovered after he was empannelled. ib. 6. And where a juror is so erroneously discharged, and the prisoner is convicted, a reversal of the judgment does not discharge him from a second trial. See Judgment, 1 11. JUSTICE OF THE PEACE. ib. 2. Bat it does not commence running until ib. MOTION. 1. A motion to strike out a plea is addressed 172 2. Motions to set aside office judgnient: dur- See Writ of Error, 1. 2. NONSUIT. 288 1. Whether the court can order a non-suit, NOTICE. See Sheriff's' sccurities, 1. Executors and Administrators, 6. Vendor and Purchaser, 4. 5. 6. OFFICE FOUND See Alien, 1. PARTNERSHIP. 38 1. In assumpsit against partners, under the must be a joint promise proved, or proof 48 3. Whether the statute of limitations, where will not be received more favorably than See Practice, 19. LOST NOTE. fendant to deny the partnership by-plea in 288 3. After the dissolution of a firm, the declar- 1. An action at law may be maintained on a 31 Sneed. 201 2. And where the declaration on such note MILITARY TITLE ib. PAYMENT. 1. Where, pending a writ of error, money is 1 512 INDEX. payor. Sanders and Fenwick v. Rires. 109 readiness to pay is surplusage. -Weaver, 2. Payment of part of the purchase money Adm'rv. Childress. 361 is not, of itself, a sufficient part perform- 7. In declaring on a contract, it must be set ance to enable the vendor to enforce a parol contract for the sale of land, and out literally, or described according to its tial variance in the proof is fatal.-Daris 207 & Co. v. Campbell. 319 See Lost Note, 1. See III. Written Evidence, 3. PENALTY. See Justice of the peace, 1. Corenant, 3. II. PLEAS. 1. To a suit brought by an administrator the 2. The same strictness, either as to form or 4. In debt on a note payable at a future 5. In an action on an assigned bond, it is not day, with interest from the date, if not a good plea for the obligor, that the as- 344 5. A declaration founded on an instrument, collection in the hands of C., an attorney 1 |