1. gent of municipal corporation not public agent.-Where the charter
of an incorporated town provides, that its corporate name shall be "the
town of E.", and that all its corporate powers shall be vested in, and
exercised by and through, an intendant and certain councillors, who shall
constitute a board to be called "the intendant and council of the town
of E."; the persons composing the board are but the directors and
agents of the corporation, and in making contracts under color of their
authority as such agents, they are not to be considered as public or
government agents, contracting in behalf of the public.-Hall v. Cock-
rell.
2. When covenant of agent does not bind principal.-By a contract
under seal, between plaintiff of the first part, and "the intendant and
council of the town of E.", who were the executive board of the corpo-
ration styled "the town of E.", of the second part, plaintiff covenanted
to perform certain services in repairing the streets of said town, "in
consideration of which said services, the parties of the second part"
agreed to pay him a stipulated sum of money; and “the said parties"
signed their individual names, and affixed their seals to the contract:
Held, that the instrument was not the deed of the corporation........ 507
3. When agent is liable individually on his covenant.—Where an agent
signs and fixes his name and seal to a covenant, which, although he de-
scribes himself as agent, contains apt words to charge him personally,
and which is not binding as the deed of his principal, he is personally
responsible on it, and the superadded words are a mere descriptio per-
4. Slave may be agent.-A slave may act as the agent of his owner or
hirer. Stanley v Nelson....
5. Liability of principal for money wrongfully received by agent.-Although an
agent is liable personally for money received by him, by authority of
his principal, belonging to another; yet the principal also is liable,
whether the money is paid over to him or not.-Cook v. Cook........ 660
6. Ratification of attorney's unauthorized employment.-Conceding that
an attorney at law has no authority to employ another attorney to act
for his client, yet if he soon afterwards informs his client of such unau-
thorized employment, and the latter does not dissent from it, these facts
are proper to be submitted to the jury, in an action brought by the
second attorney to recover his fees, to enable them to determine whether
the client did not assent to the employment.-King v. Pope......
1. Amendment of petition for supersedeas allowable.-A petition for
supersedeas, which, under our practice, stands in lieu of a declaration,
may be amended, by leave of the court, after demurrer sustained to the
original, provided the amendment does not make an entirely different
case as to the execution sought to be superseded.-Pearsall v. McCartney. 110
2. Amendment of judgment nunc pro tunc.-A recital in a judgment
nunc pro tune, that sufficient matter to authorize its rendition was dis-
closed to the court by sufficient, competent, and satisfactory evi-
dence," will sustain the judgment, if the parties appear to the motion,
and do not show, either by bill of exceptions or in some other appropri-
ate manner, that the recital is untrue.-Price & Simpson v. Gilllespie.. 279
3. Amendment of record on allegation of fraud.-The general rule,
which requires some matter of record, entry, or memorandum in the
handwriting of the judge, to authorize an amendment of the record nunc
pro tunc, does not apply to cases in which the entry is impeached for
fraud; and though these cases generally arise collaterally, yet an entry
relating to a grant of letters of administration may be amended on a
direct application, of which the opposite party must have notice, setting
forth the fraud specifically, and making the necessary proof.-Dunham
v. Roberts....
4. Allegation of fraud must be specific.-If the motion simply states, as
the ground for the amendment asked, that the record states a fact which
was not proved, that as it stands it operates a fraud on the rights of the
plaintiff in the motion, and that it is void in law, on account of fraud
in a legal sense, the allegation is not sufficiently specific to authorize
the introduction of parol evidence to prove that the fact recited was
not true.....
5. Amendment of complaint by change of plaintiffs-Where an action
of trover is brought in the name of the assignor, for the use of the as-
signee for the benefit of creditors, and the evidence shows that the con-
version took place after the assignment, the complaint cannot be amended
so as to authorize a recovery.-Stodder v. Grant & Nickels....
6. Amendment of bill in chancery.-In reversing a decree for the specific
performance of a parol contract, on account of a fatal variance between
the pleadings and proof, although the evidence shows that the com-
plainant has a good cause of action, the appellate court will not remand
the cause, in order that the bill may be amended, if the amendment re-
quired would make a new case; but will dismiss the bill, without preju-
dice to the right to file another.-Williams v. Barnes..
1. From judgment of conviction under bastardy act.-Form of security
for costs. From a judgment of the circuit court, in a proceeding under
the bastardy act, an appeal may be taken (Code, § 3821) by merely
giving security for the costs; and the security may be either a bond, or a
simple acknowledgment in writing. Satterwhite v. The State......... 65
2. Sufficiency of appeal bond as security for costs.-When an appeal bond is de-
signed to operate merely as security for the costs, and not to supersede
the judgment, although a misdescription of the judgment would be fatal,
yet a mere omission to recite in the bond the several days on which the
judgment required the respective sums to be paid would not have that
effect, if the judgment were otherwise correctly described, by its aggre-
gate amount, names of parties, term of the court when rendered, &c.;
such an omission may be supplied by a comparison of the bond with the
clerk's certificate, or with other parts of the record.....
3. Appeal lies from final decree of distribution, on proceedings instituted by personal
representative.—An appeal lies from a final decree of the probate court,
confirming the report of commissioners appointed to make a division
of the slaves belonging to an estate among the persons entitled under
the will, although the proceedings were instituted by the personal rep-
resentative, and not by a legatee or distributee.-Code, § 1888, ¶ 4.
May's Heirs v. May's Adm'r....
141
4. Remandment of cause on reversal of decree.--On a reversal of the decree of
the probate court, disallowing the probate of a will, the cause having
been heard before the judge without the intervention of a jury, although
the appellate court might (Code, § 3034) render the decree which the
probate court ought to have rendered, the safer practice is to remand
the cause. Wells v. Bransford.....
200
5. Joinder in error waives defects in appeal.-A joinder in error is a waiver of
the appeal, bond, or security for costs, and of all defects therein, and a
motion to dismiss the appeal afterwards comes too late. (Rice, C. J.,
dissenting.)-Thompson v. Lea..
6. Judgment corrected and affirmed.-Where the affidavit for the garnishment
is made by the real owner of the judgment of which satisfaction is
sought, and judgment is rendered in his name against the garnishee,
while the affidavit and garnishment corectly describe the original judg-
ment, the judgment will be corrected in the appellate court, at the costs
of the appellant, and rendered in the name of the plaintiff in the origi-
nal judgment.
7. Proper parties to appeal.--An appeal from a joint judgment against sev-
eral defendants, though sued out by one of the defendants, must be in
the names of all; but it is not necessary that the appeal bond should,
in so many words, recite that fact, if, upon a fair construction of its
language, it shows that the whole case is brought up.-Deslonde & James
v. Carter.....
8. Sufficiency of appeal bond.—A joint judgment having been rendered against
D. and J., the two proponents of a will, D. alone sued out an appeal;
and the condition of the appeal bond was as follows: "Whereas the
above bound D. hath applied for and obtained an appeal, in a certain
suit heretofore pending and determined", &c., "in which the said C.
and E. [obligees] are defendants, and said D. and J. are plaintiffs, in the
matter of the contest of the will of J. D., deceased, returnable", &c.:
"Now, if the said D. shall prosecute said appeal to effect, and pay and
satisfy the judgment which shall be rendered in said cause", &c. Held,
that the bond was sufficient...
9. Limitation of appeal.-On motion to dismiss the appeal in this case, be-
cause it was not taken within six months after the rendition of the de-
cree, (Code, §§ 1888, 2039,) the court said, that the question was one of
difficulty and importance, and declined to consider it, because its deci-
sion could not affect the result of the case.-Williams v. Gunter...... 682
10. Appeal bond insufficient, which misdescribes judgment.-If the appeal bond
misdescribes the judgment, as where the judgment is against the appel-
lant and another, and the bond describes a judgment against the appel-
lant only, the appeal will be dismissed on motion.-Dumas v. Hunter. 688
11. Transcript not filed in time.—The appeal in this case was dismissed, on
motion, because the transcript was not filed until the third term after
the appeal was taken.-Owens v. Echols....
12. Bond, or security for costs, necessary to constitute valid appeal.-A valid appeal
cannot be taken, without giving bond, or security for costs, within
the period prescribed by the statute of limitations governing appeals:
when application is made for an appeal within the prescribed period, but
no bond, or security for costs, is given until after its expiration, the
appeal will be dismissed on motion.-Mays v. King,.
690
1. Submission to arbitration construed.-Pending an injunction suit for the
abatement of a livery-stable, the parties agreed to submit to arbitration
the matters in controversy between them, and the agreement contained
a stipulation "that the award of the arbitrators, made in pursuance of
this agreement, shall terminate and forever decide all matters of con-
troversy, at law or in equity, in relation to the said livery-stable": Held,
that the right of action at law on the injunction bond, though it might
not be included in the subject-matter to be directly decided by the
arbitrators, was nevertheless to be settled by the award; and that, con-
sequently, after the award was made, an action at law could not be
maintained on the injunction bond, unless the award was not binding.
Jesse v. Cater.....
2. Plea averring arbitration and award.-In an action on an injunction bond
where the matters in controversy in the injunction suit were submitted
to arbitration, and the arbitrators awarded that certain acts should
be done by the parties concurrently, a plea setting up the submission
and award must aver performance on the part of the pleader, or an offer
to perform, or a good and legal excuse for the omission to do either. 475
3. Award construed. In awarding an exchange of lots, the arbitrators di-
rected that the parties "can and do make” to each other respectively
"a fee-simple title": Held, that the conveyances were to be executed
concurrently; that a "fee-simple title" meant a good title; that the
award did not ascertain that the defendant then had the title to the lot
which he was to convey, but that he could procure it; and that his
failure to procure the title was a good and legal excuse for the plaintiff's
failure to perform.......
475
4. Estopped by submission and award.-Where a submission to arbitration is
made under an order of court, and the award entered up as the judg-
ment of the court, a party is not thereby estopped from pleading any
matter not necessarily within the scope of the award...
See CRIMINAL LAW, 16, 17, 18, 19.
See CRIMINAL LAW, 13, 14.
ASSAULT WITH INTENT TO MURDER.
See CRIMINAL LAW, 31, 32, 33, 34.
1. Admisibility of evidence of plaintiff's general good character.—Where plaintiff
and defendant are both examined as witnesses under the statute, in as-
sumpsit on the common counts for services rendered, and contradict
each other in some particulars, and the defendant then introduces a
witness who testifies to conversations of the plaintiff which, in some
particulars, contradict her testimony on the trial, the plaintiff cannot
be allowed to prove her good character, by the declarations of the de-
fendant, or in any other manner-Owens v. White..
2. When assumpsit for money had and received does not lie.-Assumpsit on the
common counts cannot be maintained to recover money received by the
defendant from an insurance company, under a policy effected by him,
in his own name, on certain property some of which belonged to the
plaintiffs, when the money was not received, either in whole or in part,
on account of plaintiff's property, and their property was not in fact
covered by the policy.-Turner v. Stetts, Allen & Gill
3. Statute of limitations.-Where a party has the right to bring either trover
for the conversion of his slave, or assumpsit for the proceeds of sale,
and elects to proceed in the latter action, the statute of limitations be-
gins to run from the time that cause of action accrued, and the fact
that the other remedy is barred does not defeat the action.-Ivey's
Adm'r v. Owens and Wife.
ATTACHMENT AND GARNISHMENT.
1. Who may make affidavit for garnishment.-Under section, 2520 of the Code,
which allows a judgment creditor of a distributee to sue out process of
garnishment against the administrator of the estate, the affidavit for
the garnishment should be made by the real owner of the judgment,
and not by the plaintiff of record.-Jackson v. Shipman......
2. In whose name garnishment must be prosecuted.--But, although the
affidavit should be made by the real owner of the judgment, and
although the garnishment is the institution of a suit, yet the process
must be sued out, and the judgment on the answer taken, in the name
of the plaintiff of record, and not in the name of the real owner of
the judgment...
488
3. What defenses garnishee may make.-The garnishee cannot raise
the question of the ownership of the original judgment, since he has
no interest in that question. Conceding that he may show satisfaction
of the original judgment, and that his statement of that fact, when not
controverted or disproved, must be taken as true; yet his mere state-
ment" that he is advised and believes" that the judgment has been
satisfied, is not an averment that such fact exists....
..... 488
4. As to proof of original judgment.—It is erroneous to render judg-
ment against the garnishee, without proof of the original judgment;
yet, where the judgment is correctly described in the garnishment, to
which the garnishee made answer, and the judgment entry shows that
the garnishee appeared in court, "and waived the objection that no
judgment could be rendered because no execution could issue on the
judgment," this is an admission of the existence of the original judg-
ment, and dispenses with further proof of it....
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