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Held, that under the
providing that the
1. Where a party to a suit had died in June 1864:
ordinance of the Convention (23d June 1866)
time which had elapsed since September 1, 1861 should not be
counted for the purpose of barring actions or presuming the aban-
donment or satisfaction of rights, a judgment given at Fall Term,
1866, that such suit had abated, was erroneous. Morris v. Avery, 238.
2. The Ordinance of the 23d June 1866 which changed the jurisdiction
of the courts, prevented an action from abating before or at Fall
Term 1866, by the death of a defendant in 1864 after the Fall
Term of that year. Den v. Love, 435.
3. The act of 1866-27, c. 17, s. 8, which suspends the operation of the
statute of limitations, &c., until January 1st 1870, is neither a repeal
alteration nor modification of the ordinance of June 23d 1866, within
the meaning of those terms as used in sec. 24 of that ordinance,
prohibiting the General Assembly from such action. Oliver v. Perry,
4. The provisions of that act prevent suits from abating by the death of
a party and the subsequent lapse of two terms of the court, until af-
ter January 1st 1870. Ibid.
1. A plea in abatement is the proper mode of taking advantage of a de-
fect in the affidavit for an attachment. Barry v. Sinclair, 7.
See EVIDENCE 19; HOMICIDE 2; CRIM. PROCEEDINGS, 10, 11.
1. A cause of action on bank bills does not accrue until a demand and
refusal; and such bills bear interest only from the time of demand
and refusal. Crawford v. Bank of Wilmington, 136.
2. Where A & Co. entered into a written contract with B to sell off a
stock of goods and pay the nett proceeds to C, who was a creditor
of B: Held,
(a) That C had no right of action against A & Co. upon the written
contract, as, for alleged want of care in choice of customers, for
selling upon a credit, &c.
(b) That C might sne A & Co. upon the common counts, for any nett
cash received by him upon the sales.
(c) That C could not recover from A & Co. upon the common counts
or otherwise, for money due upon sales-on-credit from individual
members of the firm. Winslow v. Lawrence, 565.
3. The action against the creditor for the jail fees of an insolvent debtor,
given by Rev. Code, c. 50, s. 5 to the jailor, cannot be maintained by
the sheriff as the jailor's principal. Bunting v. McIlhenny, 579.
A conveyance of land to a son-in-law is not to be reckoned as an advance-
ment to the daughter, who at the death of her father is married
to a second husband. Banks v. Shannonhouse, 284.
A gift of slaves accompanied by a warranty of the title forever, (made some
years before the late war,) constitutes an advancement of the value of
them when given, without reference to their subsequent emancipa
tion by the results of the war.
An auctioneer is the agent of both seller and purchaser. Cherry v. Long,
1. Even after final judgment has been entered, a court has power, at any
time during the same term, to amend the proceedings in a suit.
Penny v. Smith, 35.
2. Therefore, where a petition had been dismissed, and the petitioner had
prayed for and obtained an appeal from the order: Held, that the
County Court had power during the same term, to allow the petition
to be amended, also, that the terms, upon which such allowance was
made, was a matter exclusively within its discretion. Ibid.
3. Where the affidavit and process in a case of original attachment de-
scribed a defendant as "C. E. Thorburn," his name in full being
"Charles E. Thorburn," held, that the court below might, at any
time before final judgment, allow the plaintiff to amend the pro-
ceedings by substituting the latter name for the former. Hall v.
4. The note upon which the suit had been brought being signed “C. E.
Thorburn," qure whether the amendment was necessary. Ibid.
5. Where a constable had levied an execution on land and returned the
same to the County Court, and from an order in that court overrul-
ing a motion for a vendi exponas the plaintiff appealed: Held, that
the whole record was carried up, and the Superior Court had the
power upon motion, made there for the first time, to allow the con-
stable to amend his return. Stancill v. Branch, 217.
6. A mistake in a writ as to the particular Monday in a month upon
which the defendant was to appear, held to be immaterial in a case
where the bail bond gave the Monday correctly, and the defendants
were not actually misled. Merrill v. Barnard, 569.
7. The Court to which such a writ is returned has power to amend the
8. An affidavit amended by order of the court must be re sworn to after
amendment, or it will be considered as no affidavit. Atlantic Bank v.
1. The Supreme Court will look into the merits of a prosecution coming
within the scope of the act of 1866-7, c. 3, entitled "An act grant-
ing a general amnesty and pardon of all officers and soldiers," &c.,
so far as to ascertain whether the defendants are clearly entitled to
an acquittal. If so entitled a new trial will be granted that they
may save costs; it will not be granted if their innocence is doubtful.
State v. Blalock, 242.
2. By Reade, J., the distinction between pardon and amnesty discussed
and stated: A pardon is granted, usually by the executive, to one
who is guilty, either before or after conviction; amnesty, by the
Legislature, to those who may be guilty, generally in classes and be-
fore trial. Ibid.
3. The act of 1866-7, c. 3, includes both amnesty and pardon, and the
court will place a liberal construction upon its terms, that its benefits
may be extended to as many as possible. Ibid.
4. The amnesty act of 1866-27, c. 3, was not intended to exempt soldiers
from punishment because they were soldiers, but only for acts committed
by them as soldiers; State v. Cook, 536.
5. Therefore, where the prisoner was charged with breaking a dwelling
house and stealing a watch, money, &c., and he failed to show that
he acted under military orders or in the discharge of a military
duty, the fact that he was a soldier was held so be no bar to a prose-
cution for burglary. Ibid.
1. Upon ambiguities in the statement sent up to the Supreme Court, the
presumption will be against the appellant. Wood v. Sawyer, 251.
S. P. Weaver v. Parker, 479, Davis v. Shaver, 18.
5. Defendants have a right to appeal from an interlocutory order of the
County Court appointing four freeholders to view, lay off and value
land for a mill site, under Rev. Code, c. 71, s. 1. Minor v. Harris, 322.
See FORCIBLE ENTRY, 1, 4; PRACTICE, 4.
1. An illegitimate free negro child who has not gained a new settlement
by a year's residence in some other county, is, for the purpose of being
apprenticed, subject to the jurisdiction of the court of that county
in which its mother was settled at the time of its birth. Ferrell v.
2. A master may recover damages of any one who, after demand made,
detains his apprentice.
A County Court has no power to bind as apprentices, persons who have
no notice of the proceedings for that purpose: and it is prudent in
the court to require that such persons shall be present when bound.
In the matter of Ambrose, 91.
4. A County Court, upon application by the master to whom it has bound
an apprentice, has power, and in a fit case it is its duty, to restore to
his possession such apprentice if at the time of application a run-
away. Beard v. Hudson, 180.
5. Discussion and statement of the relation between the court upon one
hand, and the master and the apprentice upon the other. Ibid.
See HABEAS CORPUS, 2.
1. An award of arbitrators, to whom a case of trespass, q. c. f. was refer-
red, that there was no trespass," enables the court to dispose of the
case, and should not be set aside for uncertainty. Harralson v. Plea-