ACKNOWLEDGMENT OF DEED. See CONVEYANCE.
An assignee of a reversion, having also assigned to him by the terms of his
contract of conveyance, the benefit of the covenants in a lease, may bring
an action in his own name, for a breach of such covenants, as the party
beneficially interested, under the code of civil procedure, which in this
respect supplies the statute 32 H. 8, cap. 34. Masury v. Southworth et
al. 340.
See BANKS AND Banking, 1, 2, 3, 4; COVENANTts of Warranty; Evidence;
HUSBAND AND WIFE; LIMITATION OF ACTIONS; NEGLIGENCE.
ADMINISTRATION. See EXECUTORS AND ADMINISTRATORS.
ADMISSIONS. See EVIDENCE, 1, 2.
ADVANCEMENTS. See MORTGAGE, 3.
AFFIDAVIT. See ATTACHMENT.
AGREEMENT. See CONtract.
ALTERATION OF NOTE-
When a note, payable generally, is made and indorsed in blank for the ac-
commodation of the maker, and at the time of its discount is altered with-
out the knowledge or consent of the indorser, by the interlineation of a
particular place of payment, such alteration is material and discharges the
indorser. Sturges & Hale v. Williams, 443.
AMENDMENT-
1. Where judgment is irregularly entered upon warrant of attorney, and a
motion is made to set it aside, if such motion is made at the term when
judgment is entered, by one of two or more several debtors, and continued
to a subsequent term, it may be so amended at such subsequent term as to
permit the other debtor or debtors to join in it. Knox Co. Bank v. Doty et
al. 505.
2. Where, in an action and confession of judgment under the code upon a
bill of exchange with a warrant of attorney attached, the bill of exchange
attached to the petition is for sixteen hundred dollars, payable to J. D., and
the petition is in the names of J. D. and others, members of the firm of J.
D. & Co., and describes the bill as for sixteen dollars, but asks judgment
for sixteen hundred dollars, and interest, etc., and judgment is confessed
on warrant of attorney and entered accordingly, in favor of the plaintiffs
named in the petition, such error in describing the amount of the bill, and
in the names of the parties plaintiffs, may, on motion, be corrected by ref
erence to the bill so attached to the petition. Doty, Hunt et al. v Rigour
& Co. 519.
3. Where judgment is taken for more than is at the time legally due, the error
may be corrected by remitting the excess. Ib.
4. The fact that between the date of the judgment and the amendatory pro-
ceedings, a petition in error is filed by the defendants in the judgment, does
not prevent the corrections from being made; the rule under the code being
the same as it was at common law, to wit, that amendments may be made
Amendment of Statutes-Attachment.
at any time before a suggestion of diminution of record would be too late;
that is, at any time before final adjudication on error. Ib.
5. Where it is shown to the supervising court by a copy of the amended
record, that the corrections mentioned have been made, and the errors
thereby cured, the judgment, as corrected, will be affirmed, but at the costs
of the defendants in error. Ib.
6. Upon an application made to the court of common pleas on notice duly
given to the adverse party, an amendment of the record, in a case in which
judgment had been rendered at a former term of that court, may be made
under section 137 of the code, by changing the names of the drawees of
the bill of exchange as expressed in the petition, so as to make the same
conform in the petition to the copy thereto attached, and to the bill on which
judgment was rendered. Doty, Goodin et al. v. Rigour & Co. 526.
7. Amendments of the record may be made after proceedings in error com-
menced, at any time while diminution may be suggested in the supervising
court, and certiorari awarded. Ib.
8. When judgment has been rendered for a larger amount than was legally
due on the contract, after petition in error filed thereon the defendant in
error may correct the judgment by remitting such excess. Ib.
9. Upon a copy of the amended record duly ordered and produced in the
supervising court showing such errors cured, and such excess appearing to
have been remitted, the judgment of the common pleas should be affirmed;
and the petition in error should be dismissed at the cost of defendants in
error. Ib.
AMENDMENT OF STATUTES. See CONSTRUCTION OF STATUTES.
ARBITRATION-
1. An executor or administrator has the power, at common law, to submit to
arbitration a disputed claim against the estate which he represents. Ex'r
of Childs v. Updyke, 333.
2. This power is not affected by the provisions of the statute which authorize
the submission of such disputed claims to referees. Ib.
ASSESSMENT-
The interest which those who live on land abutting upon a public highway
have, as compared with other citizens of the county or state, is what sus-
tains an assessment as distinguished from a tax. Per Gholson, J. Foster
v. The Comm'rs of Wood Co. 544.
ASSIGNEE. See ASSIGNMENT BY INSOLVENT DEBTORS; BILLS OF EXCHANGE
AND PROMISSORY NOTES, 6; LEASE.
ASSIGNMENT BY INSOLVENT DEBTORS-
Where a debtor, in contemplation of insolvency, makes an assignment of
property in trust to trustees, with the design to prefer one or more cred-
itors to the exclusion of others, such assignment, whether fraudulent or
bona fide, by virtue of the act of March 14, 1853, "declaring the effect
of assignments to trustees in contemplation of insolvency," is operative
to pass title to the assignee, is not void, and can not rightfully be so
treated by creditors not embraced within its provisions. Floyd & Co. v.
Smith, 546.
ASSIGNS. See COVENANT TO INSURE.
1. While good practice requires that, upon an application for an order of at-
tachment to a court or judge in an action for a debt not due, the affidavit
should set forth the facts and circumstances, and not merely the words of
the statute; yet, if a court or judge thinks proper to act upon an affidavit
stating the ground for an attachment substantially in the language of the
statute, it is a matter of form or practice not affecting any substantial right
Auditor's Deed-Banks and Banking.
of the defendant, and not a proper cause for reversal upon a petition in
error. Harrison et al. v. King et al. 388.
2. Upon like principle would stand any variation from the language of the
statute which did not affect the substance of the particular ground upon
which the order of attachment was granted. Ib.
3. The affidavit and order of attachment constitute no part of the pleadings
in the action, and the grounds for an attachment should not be stated in
the petition. This rule applies as well in case of an action for a debt not
due, as in other actions. Ib.
4. The proper mode for the defendant to meet the charge made in an affidavit
for an attachment is by motion. In a like mode a subsequent attaching
creditor should be heard as to any question of priority between him and
the plaintiff. He can not properly be made a party in the action on the
ground of an interest acquired by the levy of his order of attachment upon
the same property upon which the attachment of the plaintiff has been
levied. If he be improperly made a defendant, there is no error in dis-
missing him from the action. Ib.
5. A court of error, before reversing the decision of an inferior court upon a
question of fact involved in a motion to discharge an attachment, should
be satisfied that it was clearly erroneous. Ib.
6. The ground for an attachment may be stated in the affidavit, in the lan-
guage of the statute, without specifying more particularly the facts intended
to be alleged. Coston v. Paige, 397.
7. The charge thus made, if denied by the defendant, must be sustained by the
plaintiff to the satisfaction of the court; upon the plaintiff, by the denial,
is thrown the burden of proof. Ib.
8. In attachment proceedings, the garnishee is not, during the pendency of
the same, thereby necessarily exempted from an existing liability to pay
interest upon his indebtedness to the defendant in attachment. Candee &
Scribner v. Webster, 452.
9. A cause of exemption in such case will not be presumed in favor of the
garnishee, but must be shown to exist like any other defense. Ib.
See ASSIGNMENT BY INSOLVENT DEBTORS; CONTEMPT OF COURT.
AUDITOR'S DEED. See CONVEYANCE, 1.
BAILOR AND BAILEE. See NEGLIGENCE.
Section 1 of the act of May 1, 1854, to prohibit the circulation of foreign
bank-hills, etc. (Swan's Rev. Stat. 116), did not exclude such bank-bills
from the operation of section 22 of the act of July 1, 1835, for the punish-
ment of crimes (Swan's Rev. Stat. 272); but the uttering and publishing
false, forged, and counterfeit bank-bills of less denomination than ten dollars
upon foreign banks, as true and genuine, was within the provisions of said
section 22. Thompson v. The State, 354.
See INDICTMENT.
BANKS AND BANKING—
1. Banks organized under the act to incorporate the State Bank of. Ohio and
other banking companies," passed February 24, 1845, have no power, by
reason of the restriction of the 64th section of said act, to discount nego-
tiable notes, unless their negotiability be restricted by special indorsemen
Vanatta v. The State Bank of Ohio, 27.
2. When a branch bank assumes to discount a promissory note made payable,
by its terms, to such bank, or order, no action can be maintained on such
discounted note, either by such branch bank, or, in case of its insolvency,
by the State Bank of Ohio. Ib.
3. But where a loan of money is effected by the supposed discounting of such
paper, an action may be maintained to recover the money so loaned. The
security, being in an unauthorized form, is simply void, and does not dis-
Bastardy-Bills of Exchange and Promissory Notes.
BANKS AND BANKING-Continued.
charge the indebtedness arising from the loan which the bank had full power
to make. Ib.
4. Section 60 of the act to incorporate the State Bank of Ohio, does not
create a contract within the meaning of the clause of the constitution of
the United States, which prohibits a state from passing any law which
impairs the obligations of a contract. Skelly v. The Jefferson Branch
Bank, 606.
See BILLS OF EXCHANGE AND PROMISSORY NOTES, 6, 8, 9.
On the trial of the issue prescribed by the act of February 2, 1824, "for the
maintenance and support of illegitimate children," the defendant, by virtue
of the provisions of section 310 of the code of civil procedure, is a com-
petent witness in his own behalf. Carter v. Krise, 402.
BILLS OF EXCEPTION-
In an action by a holder of a bill of exchange against the other parties
thereon, it is competent to prove declarations made by a prior holder, be-
fore the transfer and after the dishonor of the bill, showing that the parties
were discharged from liability. But the substance of the declarations, or
sufficient of them to show their tendency and effect, should appear in the
bill of exceptions taken to the ruling of the court below excluding proof of
such declarations, so that the reviewing court may be advised that the
party may have been prejudiced by such ruling. And therefore, where a
witness is produced on the part of the defense in such action to prove cer-
tain conversations touching the liability of the parties to the bill, and the
court sustain an objection to the competency of the proof offered, but not to
the competency of the witness, and the bill of exceptions does not disclose
what the conversations were, which were offered to be proved, nor their
tendency and effect, the reviewing court will not reverse. Hollister &
Smith v. Reznor, 1.
BILLS OF EXCHANGE AND PROMISSORY NOTES-
1. In an action by a holder of a bill of exchange against the other parties
thereon, it is competent to prove declarations made by a prior holder, be-
fore the transfer and after the dishonor of the bill, showing that the parties
were discharged from liability. Hollister & Smith v. Reznor, 1.
2. As to what should be set forth in a bill of exceptions taken to the ruling
of the court, in excluding proof of such declarations, see BILLS OF Ex-
3. Although an indorsed note in the hands of the maker, after due, is pre-
sumed in law to have performed its office, and to have been paid off and
taken up by the maker, yet no such presumption arises in the case of such
note before due; but, on the contrary, in such case, it is a matter of legal
presumption that the note is unsatisfied, and is indorsed and placed in the
hands of the maker for his accommodation. Erwin and Lane v. Shaffer &
Curtis, 43.
4. The gift of the maker's own note is the delivery of a promise only, and not
of the thing promised; and upon the death of the maker, leaving the
promise unfulfilled, the gift fails. Starr v. Starr's Ex'r, 74.
5. Such gift being without consideration, no recovery can be had on the note
against the executor of the maker. Ib.
6. In 1842, the Bank of Hamilton assigned all its effects to three trustees,
McC., M., and C., among which was a joint and several note of McC. & J.
as principals, and R. as surety, for $900. After its maturity, the makers
gave a new note of like character, and by way of renewal, to assignees, at
ninety days. The last note was not paid at maturity, and was retained by
the assignees for several years, during which period the principals became
insolvent. The assignees then transferred it to F. for collection merely.
F. brought suit thereon against R., and on the trial R. offered to prove that
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