INDEX.

ABANDONMENT OF CONDEMNATION PROCEEDINGS.-See EMI-

NENT DOMAIN.

ABANDONMENT OF FAMILY.-See HOMESTEAD.

ABSCONDING.-See HOMESTEAD.

AFFIDAVIT FOR CONTINUANCE.-See PRACTICE.

AGENCY.-See CONTRACTS.

ACT.-See JUDICIAL ACT.

ACTIONS.

CASE.

1. When will lie.-Actions on the case are founded on the common
law or upon acts of Parliament, and generally lie to recover for torts not
committed with force, actual or implied. Wright et al. v. C. & N. W.
R. R. Co.,
CERTIORARI.

438

2. Petition. A petition for certiorari, showing that after plaintiffs
had begun their suit in replevin they agreed with defendants to permit
the goods to remain as they were for a short time; that in violation of
that agreement, and without notice or the knowledge of the defendants,
the plaintiffs prosecuted their replevin suit to judgment in trover, and
the twenty days allowed for an appeal expired before the defendants
knew that such a judgment had been rendered, is sufficient to support a
writ of certiorari. Kern v. Davis et al.,
407
GENERALLY.

3. Election of.-When goods are sold and delivered, to be paid for
by bills or notes payable at a future day, and such bills or notes are
not given, the vendor cannot maintain assumpsit on the general count
for goods sold and delivered, until the time of credit has expired, but
he may sue immediately for a breach of the special agreement. Manton
v. Gammon et al.,
201

4. For money paid.-The general rule is that to sustain the count
for money paid, the plaintiff must prove the actual payment and the
defendant's prior request or his subsequent assent and approval of the
act.
Redemption by one judgment creditor from a sale to another
judgment creditor, for the purpose of permitting the party redeeming

to secure his own debt, will not raise an implied assumpsit on the part of the judgment debtor to repay the amount so paid to redeem, the title to the land sold having failed. Fowler v. Hall, 332 5. Joint. In an action upon a joint and several note, the plaintiff must proceed against all jointly or each separately. Ritchie v. Gibbs, 149

6. On written contract.—In a suit declaring specially upon a written contract for the conveyance of land, the plaintiff may claim the purchase money he has paid, or may claim the value of the land at the time of the conveyance, and the mere averment that the defendant became liable to pay the amount paid by the purchaser does not change the nature of the cause of action so as to allow the interposition of the statutory bar of limitations of actions upon unwritten contracts. Cochrane v. Oliver, 176

7. When cause of, begins.-Where parties entered into a written contract for the purchase of land, and the purchaser having paid the purchase money, the seller conveyed the land to another, the right of action by the purchaser for damages, accrued upon the conveyance by the seller to a third person. Cochrane v. Oliver, 176

8. When not premature.—Where a bond was given by a trustee, conditioned to hold the trust fund for the benefit of appellant and her sister, paying the interest to their mother during her life, and the trustee became insolvent and unable to pay over the trust fund, and at his death left no estate from which it could be recovered, the embezzlement of the fund by the trustee, and his subsequent insolvency and death, gave the obligee an immediate right of action upon the bond, and she need not wait until the death of her mother before bringing suit. Lee v. Pennington et al., 247

ACTIONS ON THE CASE.-See ACTIONS.

ADMINISTRATOR.-See ADMINISTRATION OF ESTATES.

ADMINISTRATION OF ESTATES.

EXECUTOR.

1. Cannot continue business of deceased.-It is not proper for an executor to invest the proceeds of the estate in the purchase of other goods to continue the business of the deceased, without the consent of the cestuis que trust, nor can the county court confer upon him such authority. Field, Leiter & Co. et al. v. Colton, 379

2. Cannot trade with trust property.-An executor cannot, in his individual capacity, deal with himself as trustee in respect to the trust estate, and it will avail him nothing to show that his intention was honest and there was no fraud in fact. Field, Leiter & Co. et al. v. Colton, 379 3. Commissions.-Where an executor, in order to make a better sale of a stock of goods left by his testator, added to such stock goods from his own store, the commissions allowed to him for services as executor should be limited to six per cent. upon the amount of personal estate

ADMINISTRATION OF ESTATES.

EXECUTOR. Continued.

of his testator, exclusive of what was added by him to replenish the stock in trade. Field, Leiter & Co et al. v. Colton, 379

4. Liability.-Where an executor, being prohibited by the terms of the will from making distribution to legatees until a future time, loans to the legatees a sum equal to the amount of their legacy, he will not be liable to a payment of the legacies to such legatees, or their heirs. when the time for distribution arrives, and in cases where the sum loaned was not equal to the amount of the legacy, he will be liable only for the difference between the amount loaned and the legacy. The People v. Atkins et al.,

105

5. Sale to himself as executor.--Where an executor took goods from his own stock in trade and added them to the stock of goods left by his testator, in order to continue the business and make a better sale of the latter, thus realizing more for the estate, the sale to himself as executor is not void, though forbidden in equity; but he cannot make profit for himself, and if he charges the estate with an advance upon the cost-price of the goods so added, such profit should be deducted from his account as executor. Field, Leiter & Co. et al. v. Colton,

379

6. When may be charged with interest.-An executor is chargeable with interest whenever he receives interest, or uses the money, or unreasonably retains it after he ought to pay it over. Field, Leiter & Co. et al. v. Colton,

GENERALLY.

379

7. Expenses for tombstone.-When an estate is in such an insolvent condition that it can pay nothing to general creditors, nothing for physician or other expenses of last sickness, and only a part of that which the law regards a still more equitable claim, the widow's award, the administrator should not be allowed to expend $42.35 for a tombstone for the deceased. Little v. Williams, 67

8. Payment of legacy as a loan.-Where the executor loaned to the heirs the amount of money specified as their legacy, the will not permitting a distribution at that time, such loan will be considered as a payment of the legacy, and the heirs of such legatees cannot afterwards recover from the executor the amount of the legacy. The People v. Atkins et al., 105

WIDOW'S AWARD.

9. Order of payment.-In the administration of estates, payment of the widow's award is subordinate only to payment of funeral expenses. Little v. Williams,

ADMISSIONS.

GENERALLY.

67

1. Of indebtedness.-If the admission of indebtedness, testified to by plaintiff's witnesses, had reference to another matter, and not to the subject-matter of this suit, the defendant would not be liable in this action, and the jury should have been so instructed. Fort v. McGrath,

VOL. VII. 42

302

ALIMONY.-See DIVORCE.

ALLEGATION AND PROOF.-See PRACTICE.

AMBIGUITY.

LATENT.

1. Aided by averment.-Where a bond describes the obligees as "Board of Trustees of Township No. 5, Range No. 9," but omits the name of the county, there is a latent ambiguity that may be aided by averment. Trustees of Schools v. Rogers et al.,

AMENDMENTS.

GENERALLY.

33

1. Return on summons.-The circuit court has no authority to amend the return upon process issued from another and different tribunal, in a suit between other parties which has been finally disposed of. Ledford et al. v. Weber,

ANIMALS.-See TRESPASS.

ANSWER IN CHANCERY.-See CHANCERY,

ANTEDATING WRITTEN INSTRUMENTS.-See PRESUMPTIONS.

APPEALS.

BOND.

87

1. Construction.-A bond given on appeal to an appellate court is to be regarded as a mere security for the payment of the judgment, and whatever discharges the judgment, discharges also the liability of the obligors on the bond. Cook v. King et al., 549

2. Failure to prosecute-Damages.—In the case of a suit upon a bond given to prosecute an appeal, for a failure to prosecute the appeal, the fact that the judgment appealed from has been reversed in another proceeding, may be shown, and is a complete defense to the suit on the bond to all except nominal damages. Cook v. King et al., 549 FINAL ORDER.

3. Decree for separate maintenance.-A decree for separate maintenance fixes the status of husband and wife, and is such a final order as may be appealed from. Hunter v. Hunter, FROM JUSTICE OF THE PEACE.

253

4. Rule for bail to justify.-Upon entering a rule on appellant to furnish more or better security upon his appeal bond, the court has no right to require him, as terms for granting the indulgence, to pay to appellee $25 to reimburse him for expenses in investigating the responsibility of the surety offered, nor to require that he furnish appellee with an abstract of title to lands owned by the surety. Hersey et al. v. Westover,

629

5. Dismissal on call.-On an appeal from a justice of the peace, the trial in the circuit court should proceed de novo, and it is error to dismiss an appeal on call for want of prosecution, without proof of a cause of action. Eichelberger v. Garvin, 129

APPEALS. Continued.

TO APPELLATE COURT.

6. Freehold.-Where the question of a freehold is involved, this court
has no jurisdiction on appeal or writ of error. McDowell v. Lucas et al.
128; Randolph County v. Caldwell, 135; Almon v. Taylor, 183; Fitz-
gerald et al. v. Fitzgerald et al. 191; Johnson et al. v. Johnson et al.
521; Neimeyer v. Knight et al. 200; Marvin v. Collins, 353; Robinson v.
Peterson et al. 393; Hawley v. Simons et al. 401; Sperry v. Young, 402;
Frick et al. v. Trustees, 403; Whitehead et al. v. Alexander, 506; Gage
v. Bailey et al. 619; Gage v. McLaughlin,
623
7. Revenue cases.-The Appellate Court has no jurisdiction of an
appeal in a case relating to the revenue. Mix v. The People,
224

APPLICATION OF PAYMENTS.-See PAYMENT.

APPOINTMENT OF SPECIAL DEPUTY.-See OFFICER.
ASSAULT WITH INTENT TO MURDER.-See CRIMINAL LAW.
ASSIGNMENT FOR CREDITORS.

GENERALLY.

1. As affecting garnishment.-Money due the defendant in attach-
ment, cannot, after he has made an assignment for the benefit of his
creditors, be reached by garnishment at the suit of an individual cred-
itor. Dehner v. Helmbacher Forge and Rolling Mills,

47

2. Exists independent of statute.-The power to make an assignment
for the benefit of creditors, exists independent of statutory provisions,
and while it may be affected by such provisions it cannot be inferred, in
the absence of proof, that there is anything in the statute of a foreign
state, where the assignment was made, to prevent the ordinary exercise
of this power. Dehner v. Helmbacher Forge and Rolling Mills,

47

3. List of creditors-Estoppel.-Where the members of a firm in
making an assignment under the assignment law of this state, in their
deed of assignment included a person named as being a firm creditor,
they are estopped from afterwards denying that he was a firm creditor.
The other creditors of the firm are also estopped by such statement from
denying that he was a firm creditor, unless it be shown that such state-
ment was falsely made for the purpose of defrauding the other creditors
or reducing their pro rata share. McCracken v. Milhous,
169.
UNDER ASSIGNMENT LAW.

4. Assignee a trustee.-The assignee is a trustee of the assignors to
convert their estate into money and pay out the proceeds to the creditors.
McCracken v. Milhous,

169

5. Contesting claims.-In an assignment by a partnership for the
benefit of creditors, under the assignment law of this state, the rights
and liabilities of the parties who are claimed to be partners or members
of the firm, as to each other and as to third parties, cannot be determined
in a proceeding upon exceptions filed by one creditor against the claim
of another creditor. McCracken v. Milhous,
169