ACKNOWLEDGMENT OF DEEDS, &C. See Deeds, 3, 4; Trusts
& Trustees 7.
1. An ex parte settlement of an administration account was made in
1860 and recorded in the county court, showing a considerable
balance against the administrator, all of which was subsequently
paid off, provided the administrator should be allowed a credit
for $500.00, which he paid before said settlement was made, and
which is not referred to or credited therein; this credit was dis-
puted by the distributees, and in 1877 they brought their suit
against the administrator for the sum found against him in said
settlement, and he in his answer claims credit for this $500,00 and
establishes by direct and positive proof, that it was a proper
charge against the estate, and that he paid it, and that he did not
discover, until three or four years before the suit was brought,
that it had not been credited in said settlement. HELD:
I. The administrator was entitled to credit for said $500.00 in the
settlement of his accounts ordered by the court in said suit.
II. The administrator was a competent witness to prove that he
had paid said claim, its existence having been proved by
other testimony. Kyles v. Kyle, 376.
2. When an administrator residing where Condfederate notes were the
general currency during the war receives and pays out such notes,
while he is indebted to the estate, in settling his accounts, he
should be charged and credited with the full amount of such notes
received and paid out without scaling them. Hix v. Hix, 481.
3. When an administrator during the war collected an ante-war debt
due the estate by solvent parties and did not pay it out, when he
might have done so, he is chargeable for the full amount of such
debt and is not entitled to have it scaled. Id.
ADMINISTRATORS-Continued.
4. Where in the ex parte settlement of an administrator's accounts a
balance is found against him, and included in the settlement as
the proceeds of an ante-war bond on solvent parties, which he
collected during the war and did not pay out, when he might
have done so, and such amount is equal to or greater than such
balance so found against him, he is liable for the full amount of
such balance and is not entitled to have it scaled. Id.
5. Where a suit is brought by distributees against an administrator
for a balance found against him due to the estate, and the bill
contains allegations and charges which show he is liable for such
balance, and in his answer he does not controvert such material
charges, the court does not err in decreeing against him for such
balance on the bill and answer without referring the case to a
commissioner to have an account taken. Id.
6. An estate is committed to a sheriff for administration and before
the order of committal an execution in favor of the estate comes
to his hands, which he levies and returns not sold for the want
of bidders.
The sureties of his official bond at the time of the levy of such
execution are liable, although he may have given a new bond
as sheriff before the money was collected or lost by his neg-
lect. Wooddell v. Bruffy, 465.
7. A party, who concerts or unites with a fiduciary in any act con-
trary to the duty of such fiduciary, becomes particeps criminis,
and will be held liable accordingly. Id. 466.
8. An insolvent fiduciary can not impose a liability upon his sureties
by the mere giving of a receipt for assets which he does not in
fact receive-to do so he must receive substantial assets. Id.
ADMISSIBILITY OF EVIDENCE. See Evidence, 1, 2; Contract,
4; Banks, 3.
ADVANCEMENTS. See Hotchpot.
ADVERSE POSSESSION. See Judicial Sales, 9, 10.
AFFIDAVITS. See Evidence, 2; Pl. & Pr., 7, 11.
AFTER-DISCOVERED EVIDENCE. See Pl. & Pr., 13.
AGENT. See Redemption of Lands, 1; Principal and Agent, 1, 2.
AGREEMENTS. See Contracts; Recoupment, 1, 2, 3.
AMENDMENTS. See New Trial, 1; Chy. Pl. & Pr., 7, 8, 9, 14.
APPEALS.
1. An appeal from a final decree by a party entitled to appeal there-
from brings with it for review all the preceding interculatory de-
crees, out of which any of the errors complained of in such final
decree have arisen. Steenrod v. Railroad Company, 133.
2. An appeal may be taken from an interlocutory order overruling a
demurrer, by which the principles of the cause are adjudicated,
but not until after a decree has been entered carrying those prin-
ciples into effect. Id.
3. If however in such case the appellant complains not only of the
error committed in such interlocutory order but also of errors in
the subsequent decrees independent of those resulting merely
from giving effect to such erroneous order, he can not appeal from
such order, unless he is also in a condition to appeal from such
subsequent decrees. Id.
4. Where a defendant in a chancery suit appears and demurs to the
bill, and his demurrer is overruled, and a rule is given him to an-
swer, which he fails to do; and thereafter a decree is entered in
the cause granting the relief prayed for in the bill, and such de-
fendant obtains an appeal to this Court from said decree without
having moved in the court, which rendered the decree to have
the errors complained of corrected and assigns and complains of
errors in said decree other than those resulting from the over-
ruling of his demurrer, HELD :
This is a decree on a bill taken for confessed, and this Court will
not entertain the appeal but will dismiss the same as having
been improvidently awarded. Id.
5. Where a non-resident defendant, against whom decrees have been
rendered upon order of publication, appeared in the circuit court
and filed, what he styled "a bill of review," setting out the de-
crees and proceedings in the original cause and praying that said
decrees may be reversed for errors assigned therein, and has given
security for costs as such non-resident, he may appeal to this
Court from a decree dismissing such bill of review; and this
Court, treating such bill as a petition for a re-hearing under the
statute, will review the decrees complained of therein, without
requiring the appellant to file a formal petition in the circuit
court for a re-hearing. Martin v. Smith, 579.
See Chy. Pl. & Pr., 12; Judicial Sales, 2, 4; Justice of the Peace,
1; Pl. & Pr., 15.
APPEARANCE. See Jurisdiction 11.
APPELLATE COURT. See Commissioners, 1; Exceptions 1,
ARBITRATION AND ARBITRATORS.
1. An award of arbitrators was returned to a county court before the
adoption of the amendment of our constitution taking from the
county court the right to try civil suits and transferring suits then
pending in such courts to the circuit courts; and the courty court
made an order directing the parties to be summoned to appear
ARBITRATION AND ARBITRATORS—Continued.
before the court at its next trial-term to show cause, if any they
can, why said award should not be entered up as the judgment of
the court; but before the next county court was held this amend-
ment of the constitution was adopted, and the clerk of the circuit
court issued the summons, which the county court had ordered,
returnable to the first day of the next circuit court. The summons
was issued prior to the passage of any statute-law to carry into
effect this amendment of the constitution. The parties appeared
in answer to the summons, and exceptions were filed to the award,
and the case was heard on its merits, though no formal entry
was make docketing the case in the circuit court, but no objec-
tions were made by the parties to the jurisdiction of the court.
On a writ of error to the judgment of the circuit court. HELD:
The appellate court will not reverse the judgment of the circuit
court, on the ground that it had not jurisdiction of the case.
State for use v. Rawson, 23.
2. If an order be entered by a court with consent of parties by their
counsel, submitting all matters of difference between them in a
suit to the final determination of two arbitrators, naming them,
and in case they disagree, then to the determination of some other
person, whom they may choose for umpire; and on a copy of this
order signed by the counsel of the parties there is endorsed at the
time of the trial of the case before the arbitrators in the presence
of the parties and with their assent an agreement to change the
submission by adding the name of a third arbitrator, the decision
of two arbitrators to be final, and erasing from the order the clause
in regard to an umpire, and the case is heard before these three
arbitrators, and an award returned. HELD :
The award is binding on the parties, and the court may enter up
judgment pursuant thereto. Id. 24.
3. Two suits are brought at the same time-the one on the law and
the other on the chancery side of the court--the parties being the
same in both cases; the same order is made in the law and the
chancery case referring each to an arbitrator "to take and settle
all accounts beeween the plaintiff and defendant, and finally to
determine their claims in full against each other;" the suits are
between two brothers and the same subject-matter to a large ex-
tent is involved in the suits. HELD:
An award made in the one case of the matters involved in that
only without passing upon the matters in the other is bad,
because it does not embrace all the matters submitted. Bean
v. Bean, 604.
4. An award to be valid must be final and certain, it must adjudicate
all matters submitted, and if it leaves any such matters open for
future controversy, it is invalid. Id.
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