PRINCIPAL AND SURETY, principal, immaterial change in duties of, 459.
sureties are entitled to stand on strict terms of their contract, 458.
sureties are favorites of the law, 458.
RECEIVERS, actions by, beyond the state where appointed, 185–187.
authority, territorial limitation of, 185.
title of, is limited to the state where appointed, 185.
RELEASE by one of several co-tenants, 200.
SALE of goods, when complete, 237.
SALOON-KEEPERS, liability of, for not protecting guests from assault, 736.
SHERIFF, liability of, for levying on exempt property, 132.
liability of sureties of, for levy on property of stranger to the writ, 132.
SLANDER by counsel in the course of a trial, 827.
by witnesses in giving evidence, 825.
uttered in judicial proceedings, 826.
STATUTE OF FRAUDS, improvements placed on lands under contract void for
want of compliance with, 496.
STATUTE OF LIMITATIONS, municipal corporations, actions by, whether sub
ject to, 649.
TOWNSHIP, acts of officers of, when not binding upon, 181.
TREASON, Corruption of blood resulting from, 381.
escheat of lands for, 381.
forfeiture of property for, 380–382.
TRUSTEE, discretion of, control of courts over, 885, 886.
discretion of, how must be exercised, 885.
discretion of, rules for governing, 886.
estate in fee, when vests in, 909.
WILL, parol evidence to show intent to omit child from, 203.
WITNESSES, liability of, for slander uttered in giving testimony, 825–828.
1. EVIDENCE TO IMPEACH THE ACKNOWLEDGMENT OF A DEED SHOULD BE OF
THE CLEAREST, STRONGEST, AND MOST CONVINCING CHARACTER. It
should be almost as strong as that required to correct an alleged mistake
in a deed, and should not be loose, equivocal, or open to reasonable
doubt or opposing presumptions. Pickens v. Knisely, 622.
2 WITNESS, COMPETENCY OF.-JUSTICE OF THE PEACE IS A COMPETENT
WITNESS to impeach a certificate of acknowledgment signed by him;
and his testimony may be received to prove that the grantor never ap-
peared before him, nor acknowledged the deed. Id.
1. RIGHT ACQUIRED BY PRESCRIPTION IS AS PERFECT AS ONE ACQUIRED BY
GRANT, and nothing that the person who has thus acquired it can do,
and no acknowledgment that he may make, can take away from him the
right which has in this way become vested in him. Weed v. Flash, 93.
2. ASKING FROM OWNER OF LAND LEAVE TO RAISE FLASH-BOARD IS AC-
KNOWLEDGMENT of such owner's superior right, and will rebut the pre-
sumption of a grant, and interrupt the acquiring of the right to use the
flash-board. Id.
3. PAYMENT OF TAXES ON
of a possessory title.
LAND IS NOT ACT OF POSSESSION, nor is it evidence
Tillotson v. Prichard, 95.
PRINCIPAL BOUND BY AGENT'S ACTS IN EMERGENCY.-Where an agent
is directed to get a certain physician, but, being unable to procure
him, employs another instead, the emergency is such as to bind the
principal, though he told the latter physician when he arrived at his
destination that his services were not required, as the trouble was over.
Bartlett v. Sparkman, 35.
ARBITRATION.
See INSURANCE, 2, 3.
EQUITY WILL UPHOLD AN ASSIGNMENT OF WAGES expected to be earned in
the future, but not under an existing employment or contract. Edwards
v. Peterson, 207.
ASSIGNMENTS FOR BENEFIT OF CREDITORS.
1. RIGHT TO OPEN AND CLOSE.—Where plaintiff in attachment answers an
interplea, and admits an assignment, but alleges that it is fraudulent
and void, the burden is on him to prove it, and consequently he has the
right to open and close, both in the introduction of evidence and in the
argument. Hazell v. Tipton Bank, 22.
2 DECLARATIONS AS EVIDENCE. — WHERE VALIDITY OF ASSIGNMENT for the
benefit of creditors is in issue, an attaching creditor may show a con-
versation had before the assignment, in which the assignor gave as a
reason for assigning that he could then get a better settlement with his
creditors. He may also prove conversations had with the assignor, in
the presence of the assignee, shortly after the assignment, at a meeting
of creditors, to effect a compromise. Id.
Where an attaching creditor is seeking to prove the inva-
lidity of an assignment, and the assignor, prior to the assignment, has
represented himself to be worth a large sum in excess of his liabili
ties, such creditor is not estopped by representing to other creditors,
prior to the assignment, that in his opinion the assignor was solvent, and
worth a large sum in excess of his liabilities and exemptions. Id.
1. ASSIGNMENT FOR BENEFIT OF CREDITORS is not fraudulent when the em-
barrassed creditor making it intends only such delay and hindrance to
his creditors as would follow as an incident to the assignment. Id.
5. DEMURRER TO EVIDENCE is properly denied when there is some evidence,
though slight, justifying the submission of the good faith of the parties
to the assignment. Id.
1. Loss oF MONEY PAID TO SHERIFF UNDER ATTACHMENT OR GARNISHMENT,
resulting from the subsequent absconding of that officer, must be borne
by the plaintiff. In re Dawson, 346.
2. GARNISHMENT IS A STATUTORY PROCEEDING based upon contract relations,
or upon equities growing out of or created by such relations. The form
of the action under which the proceedings may be prosecuted against de-
fendants has little or nothing to do with the true character and relation
existing between the parties. The garnishee defendants cannot be held
for property of the principal defendants in their possession as for a
wrong, unless their possession was wrongful as between them and the
principal defendants at the time the writ was served, no matter in what
form of action the statute may authorize the proceeding to be prosecuted,
or the declaration permitted may indicate. Lyon v. Ballentine, 284.
See EXECUTIONS, 1.
1. SENTENCE PRONOUNCED FOR A CAPITAL OFFENSE PLACED the offender in
state of attainder at the common law. Avery v. Everett, 368.
2. PRINCIPAL INCIDENTS CONSEQUENT UPON AN ATTAINDER AT COMMON LAW
were forfeiture, corruption of blood, and an extinction of civil rights,
more or less complete, which was denominated civil death. Id.
3. INCIDENT OF CIVIL DEATH attended every attainder of treason or felony
at the common law; and the person attainted became disqualified from
being a witness, from bringing an action, and from performing any legal
function.
A ATTAINTED PERSON WAS NOT DIVESTED OF HIS LANDS UNTIL OFFICE FOUND;
he could devise them, subject only to the right of entry for the forfeiture,
and could be either a grantor or grantee, and the grant would be good
against all persons other than the king. His body could be taken in
execution, subject to the parmount claims of public justice. He could
be sued, but could not sue; he could contract, but could not require the
courts to aid him in enforcing his contracts. Id.
5. CIVIL DEATH DID NOT OF ITSELF DIVEST THE OFFENDER OF HIS Lands, as
a general rule. Id.
6. CIVIL DEATH, RESULTING FROM ENTERING INTO RELIGION AND BECOMING
A PROFESSED MONK, differed from civil death occasioned by a sentence
for crime, in this, that in the former case the monk renounced all secular
concerns, and held himself freed from the obligations resting upon him
as a member of civil society. He was therefore treated as dead in
fact, and as having surrendered all his civil rights. Id.
7. CONSEQUENCES OF CIVIL DEath, under the Statutes of NEW YORK, are
no greater than at common law, and do not include the divesting of
the estate of the criminal. Hence if lands devised to him were, on his
dying without issue, to vest in another, they do not so vest on his civil
death. Id.
1. ATTORNEY MAY BE SUMMARILY COMPELLED BY COURT TO PAY OVER
MONEY COLLECTED BY HIM only when the relation of attorney and
client in the transaction exists between him and the petitioner; and if,
on the application for such a rule, an issue of fact is raised as to whether
the relation exists, the attorney is entitled to a trial by jury. In re Ken-
nedy, 724.
2. ATTORNEY WILL NOT BE SUMMARILY COMPELLED BY COURT TO PAY OVER
MONEY COLLECTED BY HIM, when his answer to the rule convinces the
court that the money was withheld in good faith, and believed to be no
more than an honest compensation, but the petitioner will be remitted
to his action at law. Id.
3. IF AN ATTORNEY ACTS FOR SEVERAL CLIENTS, HE CANNOT TESTIFY WITHOUT
THE CONSENT OF ALL, and this is true as between his clients, or any of
them, and third parties; but where the controversy is between the parties
themselves, the rule does not obtain. Michael v. Foil, 577.
1. BAILEE OF HORSE FOR HIRE IS LIABLE IN ACTION FOR TROVER, when he
hires him to be driven to one place and drives him to a different one,
without the consent of the owner. Malaney v. Taft, 135.
1 BURDEN OF PROOF OF NEGLIGENCE IS ON PLAINTIFF in an action on the
case for negligence against the bailee of a horse for hire, and is not
shifted by merely showing that the horse was sound when delivered to
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