HUSBAND AND WIFE-Continued.
3. A controlling effect will be given in such cases to the clear intention of the
parties. Ib.
4. The act of April 17, 1857, "securing to married women such personal prop-
erty as may be exempt from execution," etc., prohibits the husband from
the sale, without the wife's consent, of any property which would be ex-
empt, if an execution had been levied thereon, and he, in good faith, had
asserted the exemptions secured to him by the statute. Slanker v. Beards-
ley, 589.
5. Where the property thus sold is not in itself specifically exempt, but may
become so upon a selection to be made by the debtor, the husband is still
prohibited from such sale, if his entire property, sold and unsold, is insuf-
ficient to satisfy the exemption secured by the act. lb.
6. The said act of April 17, 1857, confers upon the wife, where property thus
exempted has been sold without her consent, an election to maintain an
action against the purchaser for the specific property sold, or a suit to
recover its value. Îb.
In describing a bank-bill in an indictment for uttering and publishing it as
true and genuine, when it was false and forged, it is not improper to set
out the name and residence of the engravers as the same appear upon the
margin of the bill. Thompson v. The State, 354.
INDORSER AND INDORSEE. See BILLS OF EXCHANGE AND PROMISSORY
NOTES.
INFANT. See WILL.
INJUNCTION BOND-
In a suit against a surety upon an injunction bond conditioned to pay all
moneys
due or to become due upon a judgment "for the sum of $2,300 and
costs," in favor of the obligee against the principal, in case the injunction
should be dissolved, under a plea of the general issue: Held, 1. That the
surety was only liable according to the express terms of the bond. 2. That
it was incompetent for the plaintiff to give in evidence an exemplification
of a record showing a judgment for $2,346.06, and costs, although in other
respects answering to the judgment mentioned in the condition of the
bond. Hall v. Williamson's Admirs, 17.
INSOLVENT DEBTORS. Sec ASSIGNMENT BY INSOLVENT DEBTORS; MORT
GAGE, 3.
INSPECTOR OF LIQUORS. See LIQUORS.
INSTRUCTIONS. See CHARGE OF COURT.
INSURANCE. See LEASE.
INTENTION. See HUSBAND and Wife, 3.
1. In attachment proceedings, the garnishee is not, during the pendency of
the same, thereby necessarily exempted from an existing liability to pay
interest upon his indebtedness to the defendant in attachment. Candee
and Scribner v. Webster, 452.
2. A cause of exemption in such case will not be presumed in favor of the
garnishee, but must be shown to exist like any other defense. Ib.
3. Suit was brought on an instrument of the following tenor: "Due H. K., or
order, the sum of ninety-two dollars, on demand, value received." There
was no averment in the petition, nor proof on the trial, of a demand of
payment before suit brought. Held, that under the statute of 1824, “fix-
ing the rate of interest," the plaintiff was entitled to recover interest from
the date of the instrument. Darling v. Wooster, 517.
1. The taking of a judgment upon a warrant of attorney, without filing the
original warrant or a copy thereof, is an irregularity, for which the judg
ment may be set aside upon motion, at the same or subsequent term, the
motion having been filed at the first term and regularly continued. Knox
County Bank v. Doty et al. 505.
2. If such motion was made at the term when judgment was entered, by one
of two or more several debtors, and continued to a subsequent term, it may
be so amended at such subsequent term as to permit the other debtor or
debtors to join in it. Ib.
3. A payment made after the issuance of an execution, to prevent a levy upon
or a sale of the property of the defendant in execution, is not such a vol-
untary payment as will preclude the party paying from setting aside the
judgment for irregularity. Ib.
4. If the district court, upon error brought to reverse an order granting a new
trial for such irregularity, made by the court before which the judgment
was rendered, should dismiss the petition generally and without affirming
the order of the court below, the error, if one, is not an error of which the
plaintiff below can complain. Ib.
5. Where, in an action and confession of judgment under the code upon a
bill of exchange with a warrant of attorney attached, the bill of exchange
attached to the petition is for sixteen hundred dollars, payable to J. D.,
and the petition is in the names of J. D. and others, members of the firm
of J. D. & Co., and describes the bill as for sixteen dollars, but asks judg-
ment for sixteen hundred dollars, and interest, etc., and judgment is con-
fessed on warrant of attorney and entered accordingly, in favor of the
plaintiffs named in the petition, such error in describing the amount of the
bill, and in the names of the parties plaintiffs, may, on motion, be corrected
by reference to the bill so attached to the petition. Doty, Hunt et al. v.
Kigour & Co. 519.
6. Where judgment is taken for more than is at the time legally due, the error
may be corrected by remitting the excess. Ib.
7. The fact that between the date of the judgment and the amendatory pro-
ceeding, a petition in error is filed by the defendants in the judgment, does
not prevent the corrections from being made; the rule under the code being
the same as it was at common law, to wit, that amendments may be
made at any time before a suggestion of diminution of record would be too
late; that is, at any time before final adjudication on error. Ib.
8. Where it is shown to the supervising court by a copy of the amended
record, that the corrections mentioned, have been made, and the errors
thereby cured, the judgment, as corrected, will be affirmed, but at the costs
of the defendants in error. Ib.
9. Upon an application made to the court of common pleas on notice duly
given to the adverse party, an amendment of the record, in a case in which
judgment had been rendered at a former term of that court, may be made
under section 137 of the code, by changing the names of the drawees of
the bill of exchange as expressed in the petition, so as to make the same
conform in the petition to the copy thereto attached, and to the bill on which
judgment was rendered. Doty, Goodin et al. v. Rigour & Co. 526.
10. Amendments of the record may be made after proceedings in error com-
menced, at any time while diminution may be suggested in the supervising
court, and certiorari awarded. Ib.
11. When judgment has been rendered for a larger amount than was legally
due on the contract, after petition in error filed thereon, the defendant in
error may correct the judgment by remitting such excess. Ib.
12. Upon a copy of the amended record duly ordered and produced in the
supervising court showing such errors cured, and such excess appearing to
have been remitted, the judgment of the common pleas should be affirmed;
and the petition in error should be dismissed at the cost of the defendants
in error.
Ib.
See CODE OF CIVIL PROCEDURE, 3, 4; HUSBAND AND WIFE; PARTNERSHIP;
SPECIFIC PERFORMANCE.
Where a decree in chancery made by the Supreme Court of a county, under
the constitution of 1802, for the sale of lands by the sheriff as upon execu-
tions at law, upon receiving an order for that purpose," was remanded to
the common pleas for execution; and thereupon the clerk of the common
pleas issued merely a certified copy of the decree of the Supreme Court,
and containing no description of the land, except by reference to other
parts of the record, a sale thereupon made, though not void, was irregular
and rightfully set aside. Rhonemus v. Corwin, 366.
See SPECIFIC PERFORMANCE.
JURISDICTION OF COURTS-
1. In a case of which the court of common pleas would have had original
jurisdiction, brought into that court by appeal from a justice of the peace,
if the parties proceed to trial upon the merits, without objection to the
mode in which jurisdiction was taken, it is too late after verdict to make
such an objection. Bisher v. Richards, 495.
2. When a case is removed from a district court of one county to the district
court of the county of an adjacent district, the objection that the county
to which the case is removed, is not the nearest county, if not taken before
a trial upon the merits, will be regarded as waived, and can not be inter-
posed, by a motion in arrest of judgment, to defeat the jurisdiction of the
court. Skelly v. Jefferson Branch Bank, 606.
JURISDICTION OF JUSTICES OF THE PEACE-
1. Where, in section 1 of the act of May 1, 1854, amending section 4 of the
act of March 14, 1853, in regard to the jurisdiction of justices of the peace
in civil cases (Swan's Rev. Stat. 532a), it is provided that "under the re-
strictions and limitations herein provided, justices of the peace shall have
concurrent jurisdiction with the court of common pleas in any sum
over one hundred dollars, and not exceeding three hundred doilars," the
words "under the restrictions and limitations herein provided," must be
taken to refer to the restrictions and limitations provided in the original
act, as it stands after all the amendments made thereto are introduced into
their proper place therein. McKibben v. Lester, 627.
2. Section 2 of said act of May 1, 1854, amending section 5 of said act of
March 14, 1853, is not to be construed as restricting, but as enlarging the
class of cases in which the enlarged jurisdiction is conferred in the pre-
ceding section. Therefore, under said section 4 as amended, justices of
the peace have jurisdiction in actions for the recovery of damages for the
breach of warranty in the sale of horses, where the damages claimed do
not exceed three hundred dollars. And by an appeal from a judgment
rendered in such action, jurisdiction may be conferred upon the court of
common pleas. It is therefore error in the common pleas to dismiss such
appeal for want of jurisdiction. Ib. 628.
See CONSTRUCTION OF STATUTES.
1. An assignee of a reversion, having also assigned to him by the terms of
his contract of conveyance the benefit of the covenants in a lease, may
bring an action in his own name, for a breach of such covenants, as the
party beneficially interested, under the code of civil procedure, which, in
this respect, supplies the statute 32 H. 8, cap. 34. Masury v. Southworth
et al. 340.
2. A covenant to insure, when the money realized in case of loss is to be
expended in rebuilding or repair, is such a covenant as may run with the
land. Ib.
3. When such a covenant to insure has for its object a building to be erected
after the date of the lease, but which, when erected, is to be used by the
Lessor and Lessee-Master and Servant.
lessee, and is an essential ingredient in the agreement of the parties for
the creation of the estate, it is not indispensable to make such a covenant
run with the land, that "assignees" should be expressly named; but the
covenant being one which may be annexed to the estate, and run with the
land, equivalent words, or a clear intent shown by the whole instrument,
may suffice. Ib.
See SCHOOL LANDS.
LESSOR AND LESSEE-
Where P., pursuant to contract, furnished J. R. a team, to be used in the farm-
ing of lands of P., for the joint benefit of the parties; and J. R., while using
the team accordingly, carelessly left it unfastened, while he engaged in a
noisy affray with C. R., near to the horses, by which they were frightened
and ran off, and one of them was killed: Held, that the want of ordinary
care of the team on the part of J. R., being a proximate cause of the
injury, will prevent a recovery therefor, in an action brought by P., the
owner, against C. R. Puterbaugh v. Reasor, 484.
LIMITATION OF ACTIONS-
1. Virginia military district school lands held under a lease for ninety-nine
years, renewable forever, are subject to the operation of the statute of
limitations during the continuance of the leasehold estate, as well as after
the same has been merged in an estate in fee under the act of January 28,
1828, "to provide for the sale of lands granted by Congress for the use of
schools within the Virginia military district, and to authorize the lessees
of said land to surrender their leases, and receive certificates of purchase."
Bentley v. Newlon, 489.
2. Where a judgment debtor holds two sections of said lands under leases,
and assigns the same in fraud of his judgment creditor, who has the frand
declared in chancery so far as regards the amount of such creditor's judg
ment, and one of the sections is sold under a decree and satisfies the judg
ment and costs, such decree and declaration of fraud do not prevent the
statute of limitations from running in favor of such assignee of the two
sections, and those claiming under him, as it regards the section not sold
under the decree and not needed to satisfy such judgment. Ib.
LIQUORS-
In a suit brought to recover the agreed price for twenty-five barrels of whisky
sold and delivered, there being no evidence that it was adulterated, and it
appearing by the bill of exceptions, that up to and after the time when the
sale and delivery took place, no inspector had been appointed, under the
act of May 1, 1854, by the probate judge of the county in which the
vendor resided, and where the sale was made: Held, 1. That the omission
to have the whisky inspected does not, in such case, preclude the vendor
from recovering the price agreed to be paid. 2. That the penalties and
prohibitions of said act do not attach to a sale of spirituous liquors which
are pure, but not inspected, made before an inspector has been appointed
and qualified, under the law, in the county where the sale was made. Smith
v. Kibbee, 563.
No reply is allowed by the code in proceedings in mandamus. Section 577
of the code provides that "no other pleading or written allegation is
allowed than the writ and answer." The allegations of fact in the answer
inconsitent with the statement of fact in the writ, will, for the purposes
of the proceeding, and to join an issue or issues therein, be deemed con-
troverted, as upon a specific denial, without reply. The State, ex rel
Beckel, v. Union Township, etc. 599.
MARRIED WOMEN. See HUSBAND AND WIFE.
MASTER AND SERVANT. See FUGITIVES FROM SERVICE OR LABOR.
Mechanical Tools-Partnership.
MECHANICAL TOOLS. See EXEMPTION OF PROPERTY FROM EXECUTION.
MILL-DAM. See ROADS, 1.
1. Where A conveys land to B in fee, and B at the same time delivers to A
a mortgage to secure the purchase money in whole or in part, the technical
seizin of B does not confer upon B's wife a contingent right of dower in
the land, as against those deriving title at judicial sale of the land on the
mortgage. although she did not join her husband in executing the mortgage.
Welch v. Buckins et al. 331.
2. The rule is the same, whether A himself conveys the land to B, or pro-
cures C, who holds the legal title, to do so. Ib.
3. A, being in embarrassed circumstances, and having received advancements
occasionally from B, his mother, voluntarily executed his note to her for the
amount, and secured its payment by a mortgage on his real estate.
afterward paid off all his creditors except the mortgagee, and some years
thereafter died insolvent. The mortgagee assigned the note and mortgage
to A's children in consideration of love and affection. On petition by A's
administrator to set aside the mortgage as fraudulent and to sell the lands
to pay debts: Held, 1. That a mortgage is a conveyance within the statute
of frauds and perjuries of 1810. 2. That a conveyance within the meaning
of the statute is void only as against creditors. 3. That a conveyance
made without consideration by one indebted at the time, can not be avoided
by subsequent creditors without showing actual fraud or a secret trust for
the benefit of the grantor. Webb's Adm'r v. Roff et al. 430.
MULATTO. See ELECTOR; SCHOOLS.
Where P., pursuant to contract, furnished J. R. a team, to be used in the
farming of lands of P., for the joint benefit of the parties'; and J. R., whilst
using the team accordingly, carelessly left them unfastened, whilst he en-
gaged in a noisy affray with C. R., near to the horses, by which they were
frightened and ran off, and one of them was killed: Held, that the want of
ordinary care on the part of J. R., being a proximate cause of the injury,
will prevent a recovery therefor, in an action brought by P., the owner,
against C. R. Puterbaugh v. Reasor, 484.
See BILLS OF EXCHANGE AND PROMISSORY NOTES.
ORDINANCES. See Towns, CITIES, AND VIllages.
PARTIES-
An assignee of a reversion, having also assigned to him, by the terms of his
contract of conveyance, the benefit of the covenants in a lease, may bring
an action in his own name for a breach of such covenants, as the party
beneficially interested, under the code of civil procedure, which in this re-
spect supplies the statute 32 H. 8, cap. 34. Masury v. Southworth et al.
340.
PARTITION. See DESCENT AND DISTRIBUTION.
Where S., a retiring member of a firm, took from his late partner, T., a bond,
with W. as surety thereon, conditioned that T. would pay all the debts of
the late firm, which condition was broken: Held, 1. That S., without
having first paid any of said debts, or been otherwise specifically damnified,
is entitled to recover on said bond against the obligors therein, to the
amount of such debts remaining unpaid. 2. In such action it is proper
that the creditors of the firm should be made parties, and that the court
should, in the judgment, authorize the application of the amount recovered
to the payment of the debts of the firm in discharge of the judgment.
Wilson v. Stilwell, 467.
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