cuit Court can, more conveniently, carry into effect the decree which should be rendered, the decree of that Court, dismissing the bill, must be reversed, with costs, and the suit remanded, with directions to the Circuit Court to enter a decree, in due form, annulling the conveyance from Fisher to Hay, and decreeing a conveyance from Fisher to the complainant, and, upon the execution of such conveyance, authorizing Fisher to withdraw the deposit. The decree must, also, adjudge the costs of the Circuit Court against the complainant.
NOTE, BY THE REPORTER.-Mr. Justice TRUMBULL, in consequence of severe indisposition in his family, was absent during a part of the Ottawa term, and, therefore, did not participate in the decision of all the cases heard and determined at that term.
If a party considering an article entirely worthless, casts it away, intending to abandon it,
he loses his title to it. McGoon v. Ankeny,
1. In actions for torts, if the defendant omits to plead in abatement the non-joinder of par-
ties interested in the suit, he cannot take advantage of the omission, at the trial, otherwise
than in mitigation of damages. Edwards v. Hill,
2. If the defendant omits to plead the non-joinder in abatement, the plaintiff may have judg-
ment for his aliquot share of the damage sustained.
Ibid.
3. And the other persons in interest may, in another action, recover to the extent of the injury
sustained by them.
Ibid.
4. A defendant, by pleading in bar of an action, after a demurrer has been sustained to a
plea in abatement, does not thereby waive his rights under the plea in abatement, but may
assign for error the decision of the Court sustaining the demurrer. Weld v. Hubbard, 573.
See PLEADING, 4, 5.
1. A certificate of acknowledgment of a deed, by a feme covert, will be held sufficient to
convey her title and interest in a lot of which she was the owner in fee; which shows that
the requirements of the statute have been substantially complied with. (Tetiam Curiam.)
Hughes v. Lane,
123
2. But this is not to be understood as sanctioning a departure, in any essential particular,
from the requirements of the law, inasmuch as a married woman can only be divested of
her real estate in the mode and manner which the Legislature has prescribed.
Ibid.
3. The words "does not wish to retract," are no part of the acknowledgment; but they are
inserted in the statute, to afford a married woman an opportunity to avoid a deed convey-
ing away her real estate, which she has voluntarily executed, if, at the time the officer takes
the acknowledgment, she thinks proper to retract what she has done.
Ibid.
4. The law of 1819 did not confer upon a notary public authority to take and certify the ao
knowledgment or proof of a deed. Choteau v. Jones,
300
5. A certificate of acknowledgment made by a commissioner of another state, need not be un-
der seal. A certificate of acknowledgment, if in other respects sufficient, will not be viti-
ated for want of a date. Irving v. Brownell,
402
Affidavits cannot be used to qualify or contradict the positive statements of a record. Swartz
v. Barnes,
1. The presumption in the Supreme Court is, that the clerk of the circuit was satisfied of the
right of the attorney to use the name of the appellant, to an appeal bond, before he accepted
such bond. Sullivan v. Dollins,
16
2. The authority of an attorney to execute an appeal bond, will only be inquired into when
it is questioned by affidavit.
Ibid.
3. An agent appointed for a special purpose, cannot go beyond the scope of such appointment
and bind his principal; nor can he act after such employment ceases, by his having com-
pleted the business, to transact which he was constituted an agent. But within the scope
of such employment, and until the power conferred is exhausted, or revoked, the agent can
bind the principal, to the same extent that the principal can bind himself. Denman v.
Bloomer,
4. An agent, to execute a valid appeal bond, must be authorized by a power under seal; but
if he execute a bond for his principal, without being authorized by a power under seal,
a subsequent ratification of the bond by the principal, under seal, will cure the defect.
Bragg v. Fessenden,
5. If two agents are appointed, by separate instruments, with equal authority to act for the
principal, the right is not exclusive in either, but is equivalent in both, and any act done
by either, within the scope of his authority, will conclude the other. Cushman v. Glo-
6. A second power to one of two agents, unless such intention is expressed in the subsequent
power, does not take away the authority of the other. And where one disposed of a pro-
missory note, the property of his principal, the other was precluded from making any dif-
ferent disposition thereof. And the agent having the note in his possession, was bound to
relinquish it to the person who had purchased from the other agent.
1. Circuit Courts have authority to allow amendments to their records, during the term at
which a judgment is rendered, without notice; and they may allow amendments in matters
of form, at a subsequent term, if notice, actual or constructive, has been given to the op-
posite party. O'Conner v. Mullen,
57
2. An amendment of a judgment, at a term subsequent to that at which it was rendered,
without notice to the opposite party, will not avail the party making the amendment.
O'Conner v. Boyd,
3. It is a general rule, that Courts will not allow amendments which change the parties to
the action, unless there is something in the record to amend by. This is more especially
the rule in relation to amendments changing the plaintiffs in the action. Lake v. Morse,
ADMINISTRATOR. ADMINISTRATION.
1. A judgment rendered in the Courts of a sister state, against an administrator deriving his
authority under and by force of the laws of this state, who voluntarily entered his appear-
ance to the action in which such judgment was pronounced, cannot be enforced in our
Courts against the estate represented by such administrator. Judy v. Kelley,
2. A judgment rendered under such circumstances is a nullity here, and the creditor must re-
sort to his action on the original contract.
3. A grant of administration in one country, confers on an administrator no title to the pro-
perty of the intestate situate in another country. He has no authority over, nor is he re-
sponsible for, any effects of the estate that may be beyond the jurisdiction appointing
him.
4. Such administrator, in his official capacity, can neither sue nor be sued, out of the country
from which he derives his authority, and to which he is alone amenable. If he wishes to
reach property, or collect debts, belonging to the estate in a foreign country, he must there
obtain letters of administration, and give such security, and become subject to such regula-
lations as its laws may prescribe.
Ibad
5. A plea to an action brought against an administrator, on a debt due by his intestate, that
such demand was not exhibited against said estate, within two years after the grant of ad-
ministration, is a good defence. If the debt was exhibited within the two years, or if the
plaintiff labored under any of the disabilities mentioned in the statute, the plaintiff should
set forth the facts in a special replication.
6. Where the plaintiff has failed to exhibit his demand against the estate, within the two
years limited by the statute, he is, nevertheless, entitled to a judgment against the admin-
trator for the amount found to be due him, to be satisfied out of such assets as may there-
after be discovered, and which have not been inventoried or accounted for by the adminis-
Ibid.
7. In this state a plea of plene administravit is no answer to an action brought against an
administrator, upon a debt due by his intestate.
Ibid.
8. A judgment in this state against an administrator, is not an admission of assets sufficient
to satisfy the debt; its only effect is to establish a debt against the estate, to be paid in due
course of administration.
Ibid.
9. The creditor is not entitled to execution on his judgment against the administrator, or the
property of the intestate.
Ibid.
10. An administrator cannot avoid a voluntary deed of his intestate, nor can he take advan-
tage of a fraudulent conveyance made by his intestate. But where A executed and deliv-
ered to his two sons, B and C. a voluntary deed of lands, himself being indebted at the time,
which deed was not recorded so as to be notice to creditors and bona fide purchasers, and
afterwards, on the death of A, his administrator, who held the title papers to said land, and
the public records showing that A died siezed of the premises, applied to the Circuit Court
for an order to sell said lands, in accordance with the statute, which order was granted, and
said lands were sold under said order-the said B and C having been made parties to the
said suit, and interposed no defence or claim to said lands: Held that creditors and pur-
chasers had the right to conclude, and to act on the conclusion, that the said lands belong-
ed to the intestate at the time of his death, and that B and C had no other interest therein
than as heirs at law of their father; that the purchasers at such sale of the administrator
succeeded to all of the rights of the creditor, in fraud of whom the voluntary conveyance
was made; and that they are entitled to the benefit of the statute of frauds equally as the
creditor himself. Choteau v. Jones,
11. Our statutes relative to the recording of deeds, &c., applies equally to administrators'
deeds as to other conveyances; and where, as in this case, the contest is between a purcha
300
ser succeeding to the rights of the creditors of the fraudulent grantor and bona fide pur-
chasers from the fraudulent grantees, the parties are equally meritorious and innocent, but
the law wisely favors the most vigilant, and he who first places his title on record must
prevail.
12. Where a Court of Probate of one county has acquired full jurisdiction of an estate, it
retains that jurisdiction until the estate shall be fully administered. People v. White, 341.
Ibid.
13. Creditors who do not labor under any of the disabilities named in the saving clause of
the 115th section of the 109th chapter of Revised Statutes, and who fail to exhibit their
claims within two years after the grant of letters of administration, are precluded from all
participation in the estate inventoried or accounted for during that period.
14. The time within which claims must be presented against an estate, is to be computed from
the date of the letters of administration, and not from the date of the notice requiring
Ibid.
creditors to exhibit them.
15. It is a sufficient exhibition of a claim against an estate, to file the same, or a copy there-
of, with the Probate Court.
Ibid.
16. Should a surviving partner be guilty of laches or bad faith, the administrator of the de-
ceased partner may interfere by bill in equity.
Ibid.
17. A suit in equity, by a single creditor, to enforce the collection of a demand against an es-
tate, while the administration of the estate is progressing and undetermined, and under
Ibid.
which a decree was made for the sale of real estate of which the intestate died seized, and
on which the creditor had not a lien, is unjustifiable. Armstrong v. Cooper,
18. The demands against an estate are to be ascertained, and the proceeds of the property dis-
tributed pro rata among all the creditors entitled to participation therein, in proportion to
560
their respective demands.
19. One creditor cannot, by commencing a suit in equity-if equity will take jurisdiction, to
recover a particular demand, where there are no impediments in the way of a recovery at
Ibid.
law-obtain an advantage over other creditors.
20. If equity will take jurisdiction, the proper decree, after ascertaining the indebtedness,
would be, to direct that the debt should be paid in the due course of administration. Ibid.
Ibid.
See GUARDIAN AND WARD.
1. The presumption in the Supreme Court is, that the clerk of the Circuit Court was satisfied
of the right of the attorney to use the name of the appellant, to an appeal bond, before he
accepted such bond. Sullivan v. Dollins,
2. The authority of an attorney to execute an appeal bond, will only be inquired into when
16
questioned by affidavit.
3. To justify an appeal on the ground that the judgment relates to a freehold, the right of the
freehold must have been directly the subject of the action, not incidentally or collaterally;
Ibid.
and the judgment must be conclusive of the right, until it is reversed. Rose v. Choteau,
4. In an action upon an appeal bond, the copy of a final order of the Supreme Court, showing
that a judgment had been affirmed, on the day alleged in the declaration, between the
167
same parties, and from the same county, is sufficient to justify the inference that the judg-
ment appealed from was affirmed.
5. If the judgment read in evidence, and that referred to in the bond, agree in the total
Pearl v. Wellmans,
amount of the recovery, the omission to state in the bond how much of the judgment was
352
in debt, and how much in damages, does not constitute a material variance.
6. In an action upon an appeal bond, from the judgment of a justice of the peace, the defen-
dant pleaded that there was no such judgment as was recited in the condition of the bond.
Ibid.
Held that he was stopped from making such defence. Smith v. Whitaker,
417
7. The direction to justices, in the statute, where an appeal is prayed, to take a bond in
double the amount of the judgment and costs, is not imperative; and a bond, the penalty
of which was more than double the amount of the judgment, is valid.
though the statute is imperative, a bond which varied from it in that particular would still
And even
be good as a voluntary obligation.
Ibid.
3. Where an appeal has not been filed in this Court, within the first three days of the term,
the statute is peremptory that damages must be allowed. Anonymous,
9. The perfection of an appeal suspends all proceedings under the judgment. Ambrose v.
Weed,
487
10. On an appeal from a justice of the peace, the Circuit Court is to hear the case on its merits,
unless it shall appear from the evidence that the justice had no jurisdiction over the sub-
ject matter of the action. Ballard v. McCarty,
11. An appeal from the decision of a justice of the peace should not be dismissed, until it
appears from the evidence that the matter litigated was within the jurisdiction of the
501
justice.
12. Where an appeal has been improvidently granted, the appellee, by filing a transcript of
the record in this Court, may, after notice to the opposite party, on motion, have the ap-
peal dismissed. Reynolds v. Perry,
534
13. A decree entered by consent cannot be appealed from. Armstrong v. Cooper,
540
14. Whenever a party intends to appeal from the decision of a justice of the peace, and makes
such an attempt at the execution of a bond, that the officer authorized to approve it ac
cepts the bond, the appellant should not be prejudiced by reason of any informality or
deficiency in the bond. Bragg v. Fessenden,
15. An agent, to execute a valid appeal bond, must be authorized by a power under seal: but
if he execute a bond for his principal, without being authorized by a power under seal, a
subsequent ratification of the bond by the principal, under seal, will cure the defect. Ibid,
16. To execute an instrument under seal, the agent, to do so, must be authorized by a power
under seal.
Ibid.
17. An appeal can be prosecuted from a judgment which relates to a freehold, although the
act under which the judgment may have been rendered, is silent in regard to the right to
appeal. Morris v. City of Chicago,
660
1. An assignment by an insolvent debtor is illegal and fraudulent, which requires creditors
who shall become parties and share in its proceeds, to receive their dividends in full satis-
faction of their demands against the assignor. Conkling v. Carson,
503
2. Such an assignment is not absolutely void, but is voidable by the creditors of the assignor,
but as between the parties, it is valid and operative; the title to the property passed there-
by to the assignee; and a sale by him to a bona fide purchaser, before the creditors had ta-
ken steps to defeat the assignment, would be valid.
3. The deed of assignment being voidable only at the instance of judgment creditors of the
assignor, may be made good by matter ex post facto. And when an assignment is so modi-
fied and changed as to divest it of its objectionable features, by the consent of all the parties
thereto, prior to the time that any of the creditors are in a position to attack the original
assignment, it must stand, and the rights of the creditors must be governed by it.
4. A clause which provides that any surplus remaining, after the claims of the creditors, parties
to the assignment, have been satisfied, shall be paid over to the assignor, does not invali
date the assignment.
1. A plaintiff may, under the replication of de injuria, to the plea of son assault demesne,
without a special replication or a new assignment, show that the defendant's battery was
excessive. Apres v. Kelley,
2. The replication de injuria is a general traverse of the whole plea, and under it the plaintiff is
at liberty to adduce any proof that tends to disprove any of the facts alleged in the plea. Ibid.
3. Courts will not lend their aid to enforce a contract, entered into with a view of carrying into
effect anything that is prohibited by law. But an agreement which provides that if cer-
tain conditions are not complied with by one of the parties, that the other would have the
right to enter and take possession of certain premises, and should not be regarded as a
trespasser, nor his entry as anywise unlawful, in case force should be necessary to obtain
the possession, is not an agreement to do an unlawful act. Ambrose v. Root,
497
4. If greater force was used than was necessary, in taking such possession, the party offended
against should reply the excess, or give evidence thereof, under the general replication of
de injuria.
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5. A party acting under such an agreement would still be liable criminally, for a breach of
the peace.
1. A general submission to arbitrators of all demands existing between the parties, includes
every thing respecting the lands of both parties, which is the subject of variance. Merritt
v. Merritt,
565
2. On a submission of all matters in difference, the arbitrators may consider and determine
all questions affecting the civil rights of the parties.
Ibid.
3. In the construction of an award, no intendment will be indulged to overturn it; on the
contrary, every reasonable intendment will be allowed, for the purpose of sustaining
4. An erroneous decision by arbitrators will not vitiate their award. If the arbitrators have
acted in good faith, the award is conclusive upon the parties, and cannot be avoided by
showing that they erred in judgment respecting the law or the facts of the case. In the
absence of fraud, misconduct or partiality, the award will be conclusive.
Ibid.
5. If an award creates a new obligation, the party must pursue his remedy upon it; he can-
not resort to his original cause of action.
1. An Auditor's deed, upon a sale for taxes, under the law of 1837, will not show a complete
title, without proof that the prerequisites of the law have been complied with. Irving v.
Brownell,
402
2. An Auditor's deed is a title deducible of record, under the law of 1835, and is sufficient to
protect a party who can connect himself with it, and show that he has been possessed of
the premises by actual residence, under such title, for seven years.
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