the rate of ten per cent. The court
refused to require, as prayed by the
complaint, that the judgment should
draw interest at the rate of ten per
cent.

Held, that this was not error...... Ibid.
3. Contract-Remedy.-Where a per-

1.

son contracts for the payment of a
higher rate of interest than can at
the time be lawfully contracted for,
but the law in force at the time the
remedy is sought against him allows
partics to contract for the payment
of such higher rate, the latter law
controls. Klingensmith et al. v.

Reed

INTERROGATORIES.

See PRACTICE, 30.

389

Divorce. Evidence.- Interroga-
tories to be answered under oath
by the defendant cannot properly be
filed with the answer to a cross
petition in an action for a divorce;
and if filed and answered, the an-
swers cannot properly be introduced
in evidence. Barr v. Barr.......240
2. Harmless Error.-Where the de-
fendant filed, with his answer, inter-
rogatorics to the plaintiff, which
were answered, but the answers were
not sufficient, and the court errone-
ously refused to compel him to an-
swer; but it appeared by the record
that the plaintiff was sworn as a
witness, and as such testified fully
to the facts sought to be clicted by
the interrogatories, fully supporting,
in that respect, the averments of the
answer;

Ield, that the error could not avail the
defendant. Aylesworth et al. v.
Brown et a!..........
.......270

Contract.—Where a party to a contract
is voluntarily intoxicated at the time
of making it, to the extent only that
he does not clearly understand the
business, this does not render his
contract void or voidable, where no
advantage is gained by dealing with
him. Henry v. Ritenour...........136
J

JOINDER.

Of causes. See PRACTICE, 33.
Of parties. See CONTRACT, 8; PARTIES.

JOINT DEBTORS.

Release.-A. held a judgment against
B. and C. for a certain amount; B.
paid half the amount, and thereupon
A. executed to him a written instru-
ment wherein A. covenanted that he
would thenceforth "pursue the legal
and equitable remedy on caid judg-
ment against C. alone, and not
against B., looking to C. alone for
the full and final payment and satis-
faction of said judgment, without,
however, intending to prejudice or
interfere with the rights and liabili-
ties of said B. and C. to each other
on account of said judgment."
Ield, that this instrument did not op-
erate as a release of C. from liabil-
ity upon the judgment. Aylesworth
et al. v. Brown et al....... ..270

JUDGE.

Of Court of Common Pleas; election
of. See COURT OF COMMON PLeas, 2.

JUDGMENT.

See ARREST OF JUDGMENT, 1, 2; JURIS-
DICTION, 3, 5, 6,7,9; NAME; PRACTICE,

8.

Demand of. See PLEADING, 23, 24.

1. Interest.-Rate of upon Judgment.
The act of 1867, increasing the
maximum rate of interest to ten
per cent., when that rate is provided
for by contract in writing, does not
affect the third section of the act of
1861, enacting, that "interest on a
judgment, or decree for money, shall
be from the date of signing until
the same be satisfied, at the rate per

2.

cent. agreed upon by the parties in
the original contract, not exceeding
six per cent., and if there was no
contract by the parties as to inter-
est, then at the rate of six dollars a
year on one hundred dollars." Smith
v. Thomas........
.....280

Same.-Suit on a promissory note,
dated April 8th, 1868, and providing
for the payment of interest at the
rate of ten per cent. The court re-
fused to require, as prayed by the
complaint, that the judgment should
draw interest at the rate of ten per
cent.

Ield, that this was not error......Ibid.
3. Form of Practice.- Supreme

Court. No question can be made in
the Supreme Court as to the form
of a judgment, where no objection
has been taken below. Eaton et al.
v. Burns et al..........
.390

4.

5.

6.

7.

8.

of a judgment, it is unnecessary to
show by averments that the court
had jurisdiction. Spaulding et al. v.
Baldwin....

..376
Decedents' Estates.-Proceeding to
sell Real Estate.-An application to
sell lands in the course of adminis
tration stands upon the footing of an
ordinary adversary judicial proceed-
ing in a court of superior jurisdic-
tion....
Ib.d.
Same-Collateral Proceeding.—
Where jurisdiction has been acquired
in such a proceeding, subsequent er-
rors in the course of its exercise-
as in the order of sale and its con-
firmation--however grave and glar-
ing, will not subject the judgment
to successful collateral attack..Ibid.
Same. Pleading.- Exhibits. -
Where, in an action to recover pos-
session of real estate, the defendant
claims title through a sale and con-
veyance to him under an order of
court granted upon the application
of an administrator, to make assets
to pay debts of the decedent, the
answer need not aver that a real
estate bond was filed, but copies of
the record and the deed must be
exhibited as parts of the answer. Ibid.
Associate Judges.-Guardian and
Ward. The Associate Judges, as a
Court of Probate, had jurisdiction
on the 10th of August, 1829, to ap-
point guardians for infants, and such
court was a court of record. It had
jurisdiction of guardians' petitions
to sell lands. Such jurisdiction ex-
tended to lands situated anywhere
within the State. Though the law
required a bond to be given before
entering the order of sale, the fail-
ure to require one would not render
the proceeding void. Dequindre et
al. v. Williams......

.444

Same.-Probate Court.-The Pro-
bate Court, upon its organization
under the act of 1829, had authority
to take jurisdiction of matters in
relation to guardians and wards
then pending in such Court of Pro-
bate held by the Associate Judges,
and conduct them to conclusion. Ibid.

Collateral Proceeding.-Where a
proceeding in a court of superior
jurisdiction is of such a character
that upon final action the court
should, from the nature of the case,
ascertain whether it is such in fact

they may be, cannot constitute such
sufficient provocation to rebut the
presumption of malice arising from
the act, in such a case, and reduce
the offense from murder to man-
slaughter
.......Ibid.
3. Deadly Weapon.-If the act be
perpetrated with a deadly weapon,
so used as likely to produce death,
the purpose to kill may be inferred
from the act....
... Ibid.

4.

Words.- Definition of Statute
Construed. The word "voluntari-
ly" in our statutory definition of
manslaughter means, by the free
exercise of the will, done by design,
purposely.......
.........Ibid.

5. Instruction to Jury.-On the trial
of an indictment for assault and bat-
tery with intent to murder, the court
instructed the jury, in effect, that
there can be no purpose to kill in
manslaughter; and that if such a
purpose be shown to exist, and if
death result, the killing is murder.
Held, that this was error..........
....Ibid.

MINOR.

See STATUTE OF LIMITATIONS, 1, 2.

MISJOINDER.

Of parties. See PARTIES, 10.
Of Causes.-Demurrer.-Complaint to
recover the possession of certain
real estate, held by the defendant as
tenant of the plaintiff, for non-pay-
ment, upon ten days' notice, of rent
due, and also for the rent unpaid,
in one paragraph. Finding, that
the plaintiff was not entitled to the
possession of the premises, and that
the defendant was indebted to the
plaintiff in a certain sum. Judgment
for the sum found due.

Held, that if two causes of action were

improperly joined, the only method
to reach that error was by demurrer.
Held, also, that this court can in no
case reverse a judgment for this
error. Burrows v. Holderman et al.412

MISREPRESENTATION.

correction of the mistake; and that
the materials furnished were the
only materials of the kind ever fur-
nished by plaintiff to defendant.

MISTAKE.

See WILL, 1, 2.