1. The death of the defendant in error in a personal action, pending a
writ of error in this court, does not abate the suit, but it may be re-
vived under the statute in the name of his personal representative.→
Pope v. Welsh's Adm'r,
631
2. Where the defendant in an action of crim, con sues out a writ of error
to reverse the judgment rendered against him, and dies before errors
assigned, the suit may be revived in this court, under the statute, in
the name of his personal representative.—Cox's Adm`r v. Whitfield, 738
ACCOUNT CURRENT.
1: The term, account current, in its usual mercantile sense, implies an
account, which contains items of debit and credit between the par-
ties. from which the balance due to the one or the other is, or can be
ascertained.-Wilson v. Calvert, Adm'r,
274
1. An Account-whether of one or more iterns-founded on a contract,
some term of which is left unsettled by the parties, is an open ac
count, and to such the statute of limitations of three years applies.--
Mims' Exr's v. Sturtevant,
1. Where an agent places notes, belonging to his principal, in the hands
of an attorney for collection, and takes a receipt therefor to himself,
he may, when the money is collected, maintain an action for it in his
own name.-Moore & Jones, Adm'rs, v. Henderson,
2. It is often a matter of difficulty to determine whether an action is
in form ex contractu or ex delicto. Perhaps the best criterion is this; if
the cause of action, as stated in the declaration, arises from a breach
of promise, the action is ex contractu, but if from a breach of duty,
growing out of the contract, it is in form ex delicto and case.-Wilkin-
son v. Moseley,
3. The bond of a sheriff. payable to the person, who for the time being
holds the office of Governor, in his official character, and his succes-
sors in office, is to be regarded as payable to the office, and not to the
person of the incumbent, and a suit upon it in his individual name
cannot be maintained:-Bagby, use, &c., v. Baker et als.
4. If a bond be paid by a third person, at the request of the obligor, a
suit cannot be afterwards maintained upon it in the name of the ob-
ligee for the use of the person by whom such payment was made.—
Simmons & Wife v. Walker, use, &c.,
5. If a sheriff sell land under execution, and consummate the sale by
executing a deed to the purchaser, the execution, unless the sale is
set aside, must be considered as satisfied to the extent of the sum
bid, although the sheriff may not have received the purchase money;
and being satisfied, the sheriff is liable to the plaintiff, and not to the
defendant in the execution, for failing to collect it.-Moore v. Bar-
clay,
See BANKRUPT, &c., 1, 2.
BILLS OF EXCHANGE, &C., 12.
EXECUTORS AND ADMINISTRATORS, 14, 15, 18,
GUADIAN AND WARD, 3.
PARTNERS, &C., 1.
ADVANCEMENT.
1. The advancement of the husband, the wife living, is an advancement
of the wife, and after her death should be charged against those, who
occupy the same relation to the estate of him, by whom such advance-
ment was made, that she would have occupied, if living.—Wilson's
Heirs v. Wilson's Adm'r,
176
2. Aud in such case the advancement must on final settlement be
brought into hotchpot by the representatives of the wife before they.
can be allowed to participate in the distribution.
Ib.
3. Infants of themselves are incapable of electing whether they will ac-
count for advancements, or be excluded from the distribution, on final
settlement of the estate, and their exclusion, without the previous ap-
pointment of a guardian ad litem to represent them, and protect their
interests, is, therefore, erroneous. (Overruling Parks v. Stonum, 8
Ala. 752, so far as it asserts a contrary doctrine.)
ADVERSE POSSESSION AND DISSEIZIN.
1. The perception of the entire profits by one tenant in common is
not of itself sufficient to divest the possession of his co-tenaut, nor are
acts of owenership by one tenant in common necessarily to be con-
strued into acts of disseizin; but an undisturbed and peaceable ac-
cupancy of the premises by one for near thirty years, under an ex-
clusive and notorious claim of title, without any payment of rents
and profits, or any acknowledgement of the right of the other, is suffi-
cient to raise the presumption of an actual ouster.—Johnson et als. v.
Toulmin et als.
2. Where one tenant in common of an equitable title, after the aban-
donment of possession by both and their removal from the State,
returned and made a new and distinct contract of purchase with the
vendor, from whom he received a deed to himself individually, which
he had duly recorded, the mere fact that he, about the same time,
caused the original unexecuted contract, under which he and his
co-tenant previously held, to be spread upon the record, is not suf-
cient to rebut the presumption of an adverse possession arising from
a long continued, notorious, and peaceable occupancy under the new
purchase.
Ib.
1. The statute, giving damages at the rate of ten per cent. on the affir-
mance of judgment in this court, when the defendant below is the
plaintiff in error and has superseded the judgment, applies to judg-
ments for specific money demands only, and does not embrace judg-
ments of condemnation in trials of the right of property.-Hooks et al.
v. The Br. Bank at Montgomery,
2. A judgment in this court, which awards ten per cent. damages on
affirmance of a judgment of condemnation in a trial of the right of
property, is too uncertain to enable the clerk of the court below to
compute or ascertain the amount of damages, and to that extent is
consequently void.
3. The bond prescribed by the 3d section of the act of 1828, (Clay's Dig.
213,) regulating trials of the right of property, was merely intended
to secure to the plaintiff the value of the property as assessed by
the jury, if that value be less than the amount of the judgment,
and if as much or more, the amount of the judgment itself. The
act does not in any manner alter the character of the judgment of
condemnation, or authorise this court to award ten per cent. damages
on its affirmance.
1. Although, since Congress has exercised the power confered by the
Federal Constitution of establishing a uniform rule of naturalization,
no State can pass an act by which aliens may be naturalised, yet
each State has the undoubted right to enact laws regulating the de-
scent of and succession to property within its limits, and consequently
to permit an alien to inherit it.--Etheridge v. Doe ex dem Malempre, 565
2. As the law governing the succession to property emanates from the
State, and the State has the power, when there are no heirs, to deter-
mine who shall take, it follows, that lands, which have been patented
by the United States to an alien, will, on his death without leaving
inheritable blood, escheat to the State, and not revert to the General
Government.
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3. The Act of the 16th January 1844, for the relief of Francis de Ma-
lempre, (Pamphlet Acts of 1843-4, p. 56,) does not simply remove the
disability of alienage, under which he and those through whom he
claimed labored, leaving him to prove that he is the rightful heir of
Christopher Vanner, but is an unconditional legislative grant to him
of all the lands, of which the said Christopher died, seized and pos-
sessed.
Ib.
4. But Christopher Vanner being incapable, at the time of the death of
his brother John Vanner, by reason of alienage, of inheriting the lands
of the latter, and consequently having never acquired the legal seizin
thereof, such lands did not pass by the said act.
5. However true the doctrine, that a grant of land by the Government
to an alien and his heirs necessarily confers the power to enjoy and
transmit it, when applied to legislative grants, it does not hold good
as to patents, issued by the ministerial officers of the Government
upon ordinary purchases by an alien of the public domain.
See DESCENT, 1.
1. The judgment of a court connot be altered or corrected at a term sub-
sequent to that at which it was rendered, except in matters of clerical
omission or misprison.-Gibson v. Wilson,
2. A final judgment cannot, at a term subsequent to that at which it is
rendered, be so altered, as to relieve one party from the costs, and
charge the other with them.--Harris et al., Ex'rs, v. Billingsley et al., 438
See BASTARDY, &c., 5.
1. If an appeal be taken from the judgment of a justice of the peace,
within five days after it is rendered, it cannot be dismissed because no
bond has been executed, if the appellant is ready to give the bond when
the motion to dismiss is made.--Henderson v. Plumb & Robbins,
2. It is error to render judgment against the security in an appeal bond
for more than the penalty, but if done, it may be regarded as a cleri-
cal mis-entry, and ameded here under the statute.--Witherington,
Adm'r, v. Brantley,
3. Where, on the trial of an appeal from a justice's to the Circuit Court,
the sum in controversy is less that. twenty dollars, a jury is not ne-
cessary, but, if the cause of action be an open account, the court
cannot render judgment final, until the demand has been established
by proof.
.Ib.
4. When, on an appeal from a justice's court, the original papers and
judgment entry are sent np, properly certified by the justice, the Ap-
peliate Court, without other proof of their execution or identity than
that afforded by the justice's certificate, will look to them as evidence
of what was done before him in the cause.--Wolfe v. Parham, 441
1. The contract of apprenticehip, whether a slave or white person be
bound, is one of personal trust, and is not assignable.--Tucker &
Wife v. Magee,
2. If one, to whom a slave is bound as an apprentice for a term of
years, before the expiration of such term, renounces his trust, and
suffers the slave to be converted by a third person, the owner will
become entitled to the immediate possession, and may bring trover
for the conversion.
1. The rule of law is to intend that that an award is made "of and upon
the premises," unless the contrary appears.--Strong v. Beroujon, 168
2. Where the submission is of matters which concern one of the parties
in his own right, and as guardian, but does not require the arbitrators
to separate the one interest from the other, an award in favor of such
party cannot be objected to for uncertainty, because it fails to show
what is awarded to him in his own right, and what as guardian. If
it should become a material question in a future suit about the same
matters, extraneous evidence will be admissible to prove it. lb.
3. An award is not necessarily wanting in mutuality, because nothing
is required to be done by one of the parties.
Ib.
ARBITRATION AND AWARD-CONTINUED.
4. A guardian may submit for his ward, and is bound by the award in
the ordinary way, in which one man is bound, who binds himself
for the acts of another.
lb.
5. Where the submission is independent of the statute, and not under
an order of court, and there is no agreement that the award shall be
made a rule of court, gross partiality in the arbitrators is no defence
to an action at law for the non-performance of the award.
Ib.
1. Where a deed of assignment for the payment of debts is made to a
a naked trustee, with the intent on the part of the debtor to delay, hin-
der, and defraud his creditors, the assent of the creditors will not be
presumed, although the deed devotes the property conveyed, abso-
lutely and unconditionally, to the payment of their debts, and the
trustee did not participate in the fraudulent intent; but such assign-
ment will be void as against creditors, who have acquired a lien on
the property before an actual assent is given.—Townsend & Brothers v.
Harwell,
1. After the issuance of an attachment against a steamboat under the
Act of 17th January 1844, the proceedings should so far conform to
the nature of the admiralty practice, as that the declaration be filed
against the boat itself, and not against the owners, and the owners be
allowed to intervene and make themselves parties to the suit, if they
desire to do so.--Otis et al. v. Thorn,
2. The statute, giving to bonds, executed for the forthcoming of property
levied on under attachment, when returned forfeited, the force and
effect of judgments, and authorising the issuance of executions thereon
for the amount of the recovery in the attachment suits, was intended
merely to provide a summary remedy, and not to deprive the obligors
of any legal defence, which they might have set up against the bonds
at common law.--Dunlap v. Clements et als.
3. If in such case the plaintiff, after the property has been replevied
under the statute, causes a portion of it to be seized and sold under
process sued out by him against one of the sureties, and thus prevents
a compliance with the condition of the boud, it is a discharge of the
obligors to the extent of the property so sold.
Ib.
4. Although a failure to deliver a part of the property replevied in an
attachment suit, without the fault of the plaintiff, will, under the
statute, amount to a forfeiture of the bond, and authorise execution
for the entire sum due on the judgment, after crediting it with the pro-
ceeds of that delivered, yet if the failure to deliver any portion of it
is occasioned by the act of the plaintiff, the statute ceases to apply,
and the obligors, in default of delivering the residue, can only, as at
common law, be held liable for its value.
Ib.
1. Where an attorney has appeared in the cause in the court below,
without objection, his authority cannot be questioned in the appellate
court.-Moore v. Easley, Adm'r,
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