Imágenes de páginas

confirm the second verdict, and the allowance of the second new trial, the
high court could not inquire into the propriety of the order of the chancellor

setting aside the first verdict. Moody v. State of Mississippi, 612.
10. Held further, that the whole appeal was premature ; there was no decree

either final or interlocutory appealed from; the power of the chancellor to
grant the new trial was unquestioned ; its rightful exercise was another mat-
ter, which could only be inquired into on the final determination of the case ;

perhaps both parties might be satisfied with the next verdict. Ib.
11. Under the statutes of this state, no objections upon general demurrer to a

plea can be taken merely to the form of the plea; the objection to be avail-
able must be such that “ judgment according to law, and the very right of the
cause, could not be given ; " the objection therefore of duplicity is not

available on general demurrer to a plea. Mobley v. Keys, 677.
12. Where a cause is instituted in the state court by a citizen of this state,

against a non-resident, and ihe latter applies according to the act of congress
for its removal to the Uhited States court; and on its being refused, appeals
to this court, which requires it to be done on the execution of the proper
bond, and upon the return of the case to the state court, the non-resident
omits to give the bond, the state court will have jurisdiction to go on and try
the case.

Hill v. Henderson, 688.
13. See Chancery, for practice in.

1. The probate court is not bound by the rules which regulate proceedings in

chancery ; it may refer an administrator's account to the clerk to report
thereon, and, without waiting for the report, may examine and decree upon
the account directly; and, if the decree be otherwise correct, it will not be
disturbed because rendered before the clerk made his report.

Satlerwhite v. Little field, 302.
2. It is in the discretion of the probate court to fix the amount of the commis-

sions allowed administrators and executors within the limits fixed by law;
it is so much a matter of discretion with the probate court, that the high
court of errors and appeals would not interfere with an allowance by that
court, unless where there had been a manifest abuse; and in this case it did
not so consider an allowance of three per cent. Ib.

1. Where a surety on a forthcoming bond in the state of Georgia was sued on

that bond by the judgment creditor, and judgment recovered against himn in
that state, but not against the principal, and he paid the judgment, and
afterwards sued the principal in this state for the money thus paid, it was
held, that the record of the suit in Georgia was competent evidence in the
suit in this state to prove the rendition of the judgment and the payment of
the money, but not to establish the relation of principal and surety; for a



judgment settles only such facts without the adjudication of which the
judgment could not have been rendered ; an in the suit against the surety
in Georgia, the question whether there had been a breach of the condition
of the bond, and not what relation the defendant sued therein bore to the

party not sued, was the point determined. Edge v. Keith, 295.
2. In an action in this state, involving the title to a slave sold under execution in

Alabama, on a justice's judgment rendered in that state, the party claiming,
under the sale in Alabama, made affidavit of the loss of the book kept by the
justice, in which the entry of the judgment and proceedings, as required by
the law of Alabama, was kept; and offered to prove by depositions, the con-
tents of the book and character of the entry in the case under which he
claimed: Held, that it was competent for the party to prove, by his own
affidavit addressed to the court, the loss of the justice's docket, with the
view of laying the foundation for the introduction of secondary evidence of
its contents; and upon the court's being satisfied of the loss of the docket,
to prove by parol its contents. Scott v. Loomis, 635.



See Execution.


See Deed.

1. It is not necessary, in order to the maintenance of the action of replevin under

the statute, (Hutch. Code, 817,) even where the original taking was not
tortious, that there should have been a demand of the possession before

action brought. Dearing v. Ford, 269.
2. If, however, no demand be made, and the original possession of the defendant

be lawful, he may tender the property to the plaintiff, and, upon its delivery,
by proper plea, discharge the action; and the plaintiff might even be

adjudged to pay the costs. Ib.
3. But if the defendant do not pursue this course, and contest the action, the writ

will be a sufficient demand, and defending the suit a refusal. Tb.
4. After the jury, in an action of replevin have rendered their verdict for the

plaintiff, but have omitted to assess the separate value of the different pieces
of property involved in the suit, and have been discharged, it is error to recall
the same jury on the next day, submit further evidence to them, and allow

them to render another verdict assessing the separate value of each article. Ib.
5. Whether the statute which anthorizes the court, where a verdict in detinue

omits price or value, to award a writ of inquiry to ascertain the same, ex-

tends to actions of replevin, quære. lb.
6. A verdict in an action of replevin must assess the separate value of each dif-

ferent article embraced in the finding; whatever, in common understanding,
are parts of one whole, may be in the verdict treated as one article, and

valued accordingly; but where the articles are clearly distinct, each must be

valued. Drane v. Hilzheim, 336.
7. In a verdict in replevin, therefore, for a barouche and harness and horses,

which assessed a joint value for the whole, it was held there was error ;
the verdict should have assessed the value of the barouche and harness as

one article, and of the horses separately. 16.
8. Yet where, in an action of replevin, there has been a failure to assess in the

verdict the separate value of the articles found, the appellate court, in anal-
ogy to the provisions of the statute of amendments, which regulate the ver-
dicts of a similar nature in actions of detinue, remand the case to the circuit
court, with instructions to that court to award a writ of inquiry to ascertain
such separate values. It.

When an appeal has been taken from a decree in chancery, dissolving an in-

junction, and the decree is affirmed and the case remanded, and an amended
bill is afterwards filed, upon which a new injunction is granted, and upon
the refusal of the chancellor to dissolve it, it is on appeal dissolved by the
appellate court, upon which a supplemental bill is filed and a third injunc-
tion granted; this last injunction will be regarded as having been granted
exclusively upon the allegations and statements of the last supplemental
bill, and the former decisions will be regarded as conclusive on all the
rights of the parties to the case, to the extent of the points adjudicated.

Green v. McDonald, 445.

See Execution, for sale by sheriff. See also, Execulor and Administrator ;

Personal Properly; Deed; Chancery.

1. A scire facias against the heirs at law is a proper remedy to subject the lands

of the ancestor descended to them, to the payment of an unsatisfied judg-

ment against him. Commercial Bank of Manchester v. Kendall, 278.
2. And it is no answer to such scire facias, that the ancestor's estate had been

declared insolvent; such declaration of insolvency does not affect or divest

the lien of a judgment rendered against the decedent in his life-time. 16.
3. In a scire facias to revive a judgment against the heirs at law of the defendant

in the judgment, it is not necessary for the plaintiff to set forth in the writ
that the judgment had been enrolled ; that, if not done, and material to the

defence, should have been pleaded. Ib.
4. Nor is it necessary, in the scire facias itself, to set forth a description of the

lands sought to be subjected to the judgment against the ancestor; but such
description should form part of the sheriff's return on the scire facias; his
omission, however, to make such return, will not justify the quashal of the
scire facias itself: the court should either have permitted an amendment of

the return, or awarded another scire facias, with directions as to the service

and return. Ib.
5. Nothing which could have been urged as a defence to the original judgment,
can be raised as a defence to a scire facias to revive that judgment.

Mathews v. Mosby, 422.
6. Where, therefore, parties sued by the commissioners of the sinking fuod before

the act of 1814, creating the state commissioner, allowed them to prosecute
their suit to judgment, in their names, after the passage of the act : it was
held, that if the former commissioners, by the act of 1844, were deprived of
all right to sue, it was a matter of defence, on the part of those sued, to the
rendition of judgment; and if they allowed judgment to go without making it,

they could not afterwards make it to a scire facias to revive the judgment. B.
7. It is a settled rule, that a defendant to a scire facias, to revive a judgment,

cannot plead any matter which he might have pleaded to the original action,
or which existed prior to the judgment; whether such judgment be obtained

by confession, default, or upon plea. Person v. Valentine, 551.
8. To a scire facias, therefore, to revive a judgment obtained by the Bank of Port

Gibson, in favor of the trustees of the bank, a plea was adjudged bad which
set up that a judgment of forfeiture had been rendered against the bank, and,
prior to the rendition of the judgment sought to be revived, the bank had as-
signed the note sued on to certain persons as its assignees. Ib.


See Costs.

1. By the act of 1843, Hutch. Code, 224, it is made the duty of the sheriff" upon

any judgment rendered on a note given for the purchase-money of any of the
seminary lands, to levy the execution upon said lands, and sell the same;"
the object of this statute was merely to enable the sheriff to sell under
execution the equitable interest of the defendant in such lands; and it did
not, therefore, under execution upon a judgment against a surety alone, upon
a note given for the purchase of such lands by the principal, authorize the

sale of the lands. Smith v. The State, 140.
2. If, therefore, upon a judgment against such surety alone, the lands thus pur-

chased by the principal are levied on and sold, no title will pass to the pur-
chaser; the sale will be void, and the whole transaction a nullity; and the
judgment will not be credited by the amount of the bid when made by the
state. 16.

SET-OFF. See Offset.

1. S. sued out a writ of habeas corpus against C. S., alleging that the latter

had taken certain slaves of the former out of his possession, he being the
owner, by force ; on the trial of the writ it appeared that C. S., as sheriff,

had taken the slaves under the fiat of the chancellor and process from the
chancery court in the suit of M. against S., and held them in custody by
virtue thereof, until the jail fees amounted to $ 140; when S. presented
him an order from the chancellor for their release, C. S. refused to deliver
them until the fees due were paid him ; upon which S. sued out the writ
of habeas corpus : Held, that the facts did not justify the issuance of the
writ; the sheriff took the slaves in obedience to the order of a court of
competent jurisdiction, and did not detain them unlawfully when he held
them to enforce the payment of fees allowed him by law.

Steele v. Shirley, 196.
2. It seems that a sheriff has by law a lien upon slaves committed to his jail, for

their jail fees, and has a right to retain the slaves for their payment; but if
there are several slaves so committed, upon the order for their release, he
should only retain a sufficient number, of value to pay the fees. 16.

See State Commissioner.

1. If the owner of slaves hire them to a third person, he cannot sue for an

injury to them during the time of the hire, unless he prove an injury to his

reversionary interest. Lacoste v. Pipkin, 589.
2. The following clause in the will of Lewis Weathersby, to wit : "I give and be.

queath to my son Ludovick, my servants Tom and Lucy, and their children,
Matilda, Sylvester, Andrew, and Dicey, in trust and under the following con-
ditions, viz: I do hereby enjoin it upon my said son to make the said slaves as
comfortable in life as possible ; that he furnish them and their children with a
house separate from others; that he provide a horse, farming utensils, and a
small tract of land for their use ; that he sell their crops, furnish them with a
milch cow, and two hundred pounds of sugar, and one hundred pounds of coffee
yearly; and that in consideration of these things, he require of them reasonable
service; and should Tom and Lucy at any time be able to raise a sum of money
sufficient to compensate said Ludovick, say three hundred dollars for each of
their daughters, Matilda and Dicey, then he shall give up said Matilda and
Dicey to said Tom and Lucy, to serve and comfort them in their old age:
was held to be void, so far as it purported to impose a condition upon the un-
qualified bequest to Ludovick ; the condition was an attempt to secure free-
dom to the slaves, or part of them, and was therefore illegal; but the devise
was valid, and the property passed absolutely to Ludovick.

Weathersby v. Weathersby, 685.
3. See Habeas Corpus ; Criminal Law.


See Land Laws.

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