6. EXECUTOR Settlement with, when not binding.
An unauthorized settlement with the executor, and acquittance of record in
the Probate Court, by one who professes to have, but is, in fact, without
authority to represent a legatee in regard to the legacy, is not binding,
and will be set aside, and the amount due the legatee decreed him in
equity. Jacks et al. vs. Adair.
616
7. Effect of a failure to present a judgment within one year.
A judgment, recovered during the life of an intestate, which was a lien on
land, and entitled to be classed in the third class, loses its priority if not
presented to the administrator within one year, and should be classed in
the fifth class. Keith, adm'r., vs. Parks, adm'r.
See ACTION, RIGHT OF, 6. Cost, 2.
See EVIDENCE, 2, 13, 14. PARTNERSHIP, 3. PLEADING, 1.
Implied authority. Representations of agent, etc.
One who managed a farm for another, with authority to purchase mules,
implements and supplies for the farm, was not thereby authorized to buy
goods for the laborers on the farm; and his representations to that effect
were not binding on his principal. Cartr vs. Burnham.
See PLEADING, 4. STATUTE, 6.
See ACCORD AND SATISFACTION. PLEADING, 1, 12, 16, 17.
See BILL OF EXCEPTIONS, 3. LEGAL PRESUMPTIONS, 2.
1. Power of the Circuit Court when defectively taken.
Where the record, in a proceeding that originated before a Board of Super-
visors, does not show that an appeal was granted to the Circuit Court, but
it appears that an authenticated transcript of the proceedings before the
board was before the Circuit Court, and the cause was treated by the court
and parties as if regularly there on appeal, the court could, upon the
transcript, make any appropriate order in the case. Chandler vs. Mont-
gomery County.
2. From an interlocutory order in a criminal cause.
Where an interlocutory order is entered under an indictment for felony, by
which the jurisdiction of the court is rendered doubtful, it is proper that
an appeal should be taken to the Supreme Court. State vs. Flynn.
3. Jurisdiction acquired by.
When a party appeals to this court, he thereby enters his appearance, and
the court, as to subsequent proceedings, acquires jurisdiction of his per-
son. Hodges et al. vs. Frazier.
4. Reversal of decree on the facts, etc.
Where it clearly appears that the finding of the chancellor is erroneous, this
court will not hesitate to reverse the decree. Gerson vs. Pool.
5. SURETIES ON APPEAL BOND: Jurisdiction over.
Upon the affirmance of a decree for money, by this court, the decree goes
against the sureties in the appeal bond as of course, and, if omitted at the
time, may afterward be entered nunc pro tunc. The sureties are not enti-
tled to notice before decree against them. Rogers vs. Brooks.
6.: Practice when excessive judgment rendered against.
The sureties in an appeal bond stipulated to pay any decree that might be
rendered by this court against their principal, not to exceed the amount
of the decree below. The bond recited the amount of the decree exces-
sively, and was followed by the decree in this court: Ordered, that a
remittitur be entered as of the date of the decree, and certified to the
sheriff, in whose hands an execution has been placed, with directions to
enter the amount remitted as a credit on the execution.
7. From Justice of the Peace.
Where an appeal is taken from the judgment of a justice of the peace, it is
his duty to file a transcript in the office of the Clerk of the Circuit Court
on or before the next term of that court, and it is incumbent on the
appellant to see that the transcript is filed and the case docketed. If he
neglects to do it, it is in the discretion of the Circuit Court to affirm the
judgment of the justice. Smith et al., vs. Allen.
8. Affidavit, waiver, etc.
Where, upon an appeal from the Probate to the Circuit Court, the appellee
submits to try the cause anew in the Circuit Court, without moving to
dismiss for want of an affidavit for appeal, the failure to file such affida-
vit is thereby waived. James et al., adm'r., vs. Dyer, adm'r.
9. Dismissal, etc.
An appeal was granted by a justice of the peace, and the transcript depos-
ited by him with the clerk of the Circuit Court; the appellant, who had
executed a supersedeas bond, failed for more than thirty days to have the
transcript filed, or the cause docketed: Held, it was in the discretion of
the court to determine whether the appeal had been prosecuted with due
diligence, and an order dismissing it would not be disturbed. McGehee
vs. Carroll & Jones.
APPEARANCE,
See NOTICE, 1.
See CONSTITUTIONAL LAW, 2, 3. CRIMINAL LAW, 3.
See ACTION, RIGHT OF, 4. LIEN, 4, 8. PROMISSORY NOTES AND BILLS OF
EXCHANGE, 1, 2, 3, 4. VENDOR AND VENDEE, 6, 7, 8.
The assignee of a note acquires an absolute title to the debt, and the exclu-
sive right of action thereon. Roberts et al. vs. Jacks.
597
2. As collateral security, does not carry landlord's lien,
The assignment of a note executed for the rent of land, as collateral secu-
rity, does not confer the landlord's lien upon the assignee, or entitle him
to attach the crop raised on the land, for the debt.
Damages upon dissolution of an attachment.
The act of March 7th, 1867, provided for an inquest of damages and a judg-
.nent against the plaintiff, and his sureties, upon the dissolution of an
attachment. The civil code, passed subsequently, covered the general
subject of attachments, and prescribed the time, manner, and causes for
which an attachment might be discharged, but contained no provision for
an inquest of damages. Held, a repeal of the Act of 1867. Mears et al.
vs. Stewart.
17
At orneys appointed by the court to defend persons charged with crime
and unable to employ counsel, are not entitled to compensation, Arkan-
sas Co. vs. Freeman & Johnson.
BAIL BOND: Void where the arrest is illegal.
Where a sheriff executes a warrant of arrest beyond his own county, a bail
bond executed by the prisoner is void. Blevins et al. vs. The State.
See ACTION, RIGHT OF, 2. EVIDENCE, 3.
1. Rights acquired by a pledge.
In a proceeding by attachment, and levy on personal property, an interplea
was filed by parties claiming that the property had been pledged to them
by the defendants, to secure indebtedness due them, etc.: Held, that the
pledge created a special property in the interpleaders, which was good as
against the pledger or his creditors, and the interplea should have been
sustained. Peet et al. vs. Burr et al.
2. Stranger receiving premiums on policies of insurance.
Where premiums on policies of insurance are collected, and held by a third
person, and the amount placed to the credit of the agent of the insurance
company, the holder becomes the bailee of the company, and must
account to it, or its agent, for the money so held; he cannot apply the
same to a discharge of debts due him by the agent, or deliver it to the
agent after his authority has ceased. Fagan & Trezevant vs. N. Missouri
Ins. Co.
4 Liability of bailee under void contract, etc.
Although a contract made for the hire of a horse on Sunday is void, the
hirer will be liable in tort for any injury accruing to the horse from mis-
use or carelessness, and will be held to the highest degree of care. Stew-
art vs. Davis.
One who hires a horse for a definite time, and continues to use him after
the time has expired, is liable for any injury that may accrue to the horse.
Id.
Where a witness is rejected for incompetency, it is not necessary to set out
in the bill of exceptions what the party expected to prove by him. Rick-
erstricker vs. The State.
Where the evidence is not embodied in the bill of exceptions, but reference
is made therein to the page of the transcript upon which it is entered, it
is sufficient, though the better practice is to embody it in the bill of excer.
334
tions. Jacks vs. Dyer et al.
3. Office of, appeal, etc.
The office of a bill of exceptions is not to show facts that are properly mat-
ters of record, but to bring upon the record such matters as would not
otherwise appear.
And a statement in the bill of exceptions that an ap-
peal was asked and granted, is no evidence of the fact, where the record
is silent. Anthony vs. Brooks.
1. Defense of innocent purchaser.
Should show that the vendor was seized in fee and in possession of the
land. Gerson vs. Pool.
A creditor who makes advances under the security of a deed of trust, in
good faith, and without notice of a vendor's equitable lien for the pur-
chase money, will be protected as an innocent purchaser.
The fact that the trustee in a trust mortgage had no notice of an incumb-
rance, will not protect the beneficiary, purchasing with notice at a sale by
the trustee under a power contained in the deed.
Id.
So long as the vendor retains the legal title, a purchaser from the vendee
cannot allege want of notice of the vendor's lien for unpaid purchase
money. Haskell, adm'r., vs. The State et al.
See DEED, 1. PLEADING, 8, 9.
CESTUI QUI TRUST.
See PARTIES, 5. TRUST.
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