Schofield v. Cox & als., 533 3. In a foreign attachment the absent debtor who has not appeared in the court below cannot appeal. Lenows v. Lenow, 349 4. But there being two absent defendants, who are sued for a joint! debt, one of whom appears and answers, and there being a joint decree against both, upon the appeal of the one who does appear the decree will be reversed as to both. Idem, 349 ADMINISTRATION. of payment the defendant may give in evidence the parol admissions of the plaintiff that but a portion of the debt claimed is really due. Rice's ex'or v. Annatt's adm'r, 557 AMENDMENTS. An indictment for a wilful trespass was against J. M. It was endorsed by the grand jury as against T. M., a true bill," and so it was noted on the record. The court cannot alter the record so as to make it conform to the indictment. McKinney's Case, 589 APPELLATE COURT. 1. For what irregularities of form the appellate court will not reverse a decree correct upon the merits. Beery v. Homan's committee, 48 2. Irregularities in a decree which do not injure the appellant are not grounds for reversing it. Vance v. McLaughlin's adm'r, 289 3. When the appellate court will presume the proceedings in the court below correct. See Detinue, No. 2, and Hunt's adm'r v. Martin's adm'r, 578 4. Upon an appeal by the home defendant, in a case of foreign attachment, from an interlocutory decree for the sale of land, the appellate court will not reverse the decree because the court below did not decree against the absent debtor, or direct the security to be given as provided by law in behalf of absent defendThis may be done in the final ants. decree. Kelly v. Linkenhoger, 104 5. When the appellate court will dismiss an appeal, upon motion of the appellee, for having been improperly obtained. Ross's adm'r v. Reid & wife, 229 APPELLATE JURISDICTION. 1. Where an appeal or supersedeas Clark v. Brown, 549 and ARDENT SPIRITS. 1. When drinking ardent spirits purchase money of two thirds of a Schofield v. Cox & als., 533 3. The obligors having paid off the be entitled to insist that the amount 4. All the land being sold together, What a good indictment for an attempt to commit a felony. Nutter's Case, 699 ATTORNEY IN FACT. should be restrained by endorse- | ATTEMPT TO COMMIT CRIME. ment on the process from disposing of the proceeds. Idem, 260 3. A wife's interest as legatee in her father's estate, in the hands of the executor, may be subjected by the creditor of the husband, by a proceeding by foreign attachment, when the husband resides out of the State. Vance v. McLaughlin's adm'r, 289 4. Though service of the process upon the executor creates a lien upon the wife's interest in favour of the creditor, yet if the husband dies pending the proceedings, leaving the wife surviving him, the lien of the creditor is defeated, and the property belongs to the wife. Idem, 289 5. When the rights of an assignee will be preferred to the lien of an attaching creditor. See Assignor and Assignee, No. 2, 3, 4, and Schofield v. Cox & als., 533. 6. An attaching creditor proving his debt, is entitled to a personal decree against his absent debtor, though the property attached may be adjudged to another claimant. Idem, 533. 7. Though a home defendant claims the land in his possession as a purchaser, and shews a receipt for the purchase money, yet, as he does not pretend that he paid in money, and as his account against the absent debtor is not proved to the satisfaction of the court, the land will be held liable. Kelly v. Linkenhoger, 104. 8. In such case, upon an appeal from an interlocutory decree for the sale of the land, the appellate court will not reverse the decree because the court did not decree against the absent debtor, or direct the giving security as provided by law in behalf of absent defendants. That may be done in the final decree. Idem, 104 9. In a foreign attachment the absent defendant who does not appear in the court below cannot appeal. Lenows v. Lenow, 349 10. But there being two absent defendants, who are sued for a joint debt, one of whom appears and answers, and there being a joint decree against both, upon the appeal of the one who did appear the decree will be reversed as to both. Idem, 349 A deed executed under a power of attorney commences in the name of the grantor by the attorney, and is signed in the name of the attorney for the grantor. It is a valid deed. Bryan v. Stump, &c., 241 AWARDS. 1. In an action on an award, if upon the face of the submission it does not clearly appear that the award does not cover the whole matter submitted, a demurrer to the declaration will not be sustained; but the defendant will be left to his plea of no award"; to which the plaintiff may reply and shew that the award does cover the whole matter subPrice v. Via's heirs, 79 mitted. 2. So if the parties may have waived a decision on one branch of the matter submitted, and requested the arbitrators to decide the other matters, though this is not stated in the declaration, a demurrer will not be sustained; but the plaintiff will be allowed to reply the facts to the Idem, 79 plea of “no award." B BASTARD CHILDREN. The father of a bastard child, whose mother was a married woman deserted by her husband, required to pay to the overseers of the poor a certain sum annually for six years, commencing from the birth of the child, if it should live so long. Lyle v. Overseers of the Poor of Ohio county, 20 BILL OF PARTICULARS. 1. The count in assumpsit by an administrator is for money had and received, and the bill of particulars merely states an account in which defendant is debtor to the administrator for money received, stating a sum certain. This will not admit proof of admissions by the defendant that he had received from a third person a certain sum belonging to the intestate's estate Minor v. Minor's adm'r, 1 2. Where a defendant relies on a specific payment or set-off by way of discount against a debt, an account stating distinctly the nature of such payment or set-off, and the several items thereof, must be filed with the plea; though the defendant may rely upon the parol admissions of the plaintiff to prove such payment. But this is not necessary where no specific payment is relied on, but the defendant offers proof of the admissions of the plaintiff that but a part of the debt is due. Rice's ex'or v. Annatt's adm'r, 557 3. A set-off relied on is a note, which is filed with the papers: No other bill of particulars is necessary. Bell v. Crawford, 110 BONDS. 1. A bond with condition to convey land of which the obligor had neither title or possession passes nothing. Cales v. Miller & als., 6 2. A committee of a lunatic is required on the record to give a bond for counter security, and the record says he gave it; but the bond taken was a new bond. The bond, acknowledged and certified as this was, became a part of the record, and is to be construed with the record as shewing what was required by the court; and therefore it must be taken that the court required a new bond. Berry v. Homan's committer, 48 3. A bond is executed with the names of some of the obligors in the penalty, but it is signed by one whose name is not there: It is his bond. Idem, Luster v. Middleuff & als., 54 4. As to liens of forthcoming bonds. See Forthcoming Bonds, No. 1, 2, 3. and ! 6. If debtor proves insolvent, the surety may be relieved to the extent of one moiety of the debt, either by bill in equity or by motion under the statute for the relief of sureties. Idem. 560 7. A bond binding the heirs, given to an endorser to protect him from loss on account of his endorsements. will, on the death of the obligor, be an available security for simple contract creditors of the obligor to the extent that the notes endorsed by said endorser is paid out of the personal assets. Cralle&als. v. Meem & als., 496 C CAPIAS PRO FINE. See Executions, No. 1, 2, 3, and CASE. 1. Case is a proper remedy for the breach of an express warranty of soundness of a slave or other personal property. Trice v. Cockran. 442 2. In case for a breach of a warranty of soundness of a personal chattel, it is not necessary to allege the defendant's knowledge of the unsoundness: And if it is alleged, it is not necessary to prove it. Idem, 442 CO-DEFENDANTS. In a bill by a creditor against an administrator and his sureties, charging a derastarit by the administrator, and the liability of the sureties for it, though some of the sureties insist in their answer that under the cir48 cumstances one of the sureties is liable to the others, if they are liable to the plaintiff, though there is a decree for the plaintiff, and though it appear from the proofs that the derasturit was occasioned by the payment of a debt of inferior dignity to the surety sought to be charged, yet it is not a proper case for a decree between co-defendants. Allen & Ervine v. Morgan's adm'r &als., Jones, &c. v. Müzik's cr'ors, 179 Myrick's ex'ors v. Epes & als.. 179 5. A forthcoming bond is signed by the debtor, a third person, and the creditor in the execution. The bond is valid to bind the debtor and the first surety; but the first surety is only a co-surety with the creditor. and entitled to contribution from him. Booth v. K..seg, Tea COMMISSIONER. 60 Under a decree for the sale of lands, in a suit by heirs, the administrator of their ancestor's estate is appointed a commissioner to collect the proceeds of the sale. In a suit by a creditor of the administrator's intestate, to subject the proceeds of the land, the commissioner should be made a party as such; and if he is only a party as administrator, and without actual notice of the object of the suit he pays over the money to the heirs, he will not be liable to the creditor. Carrington & als. v. Didier, Norvell & Co., CONDITIONS. 260 For the construction of the condition of a bond of indemnity. See Marshalling Assets, No. 4, and Crulle & als. v. Meem & als., 496 CONTINUANCE. 1. A motion for a continuance of a criminal trial, on the ground of the absence of a material witness, properly overruled under the circumstances, though the prisoner swears to the materiality of the witness. Mull's Case, 695 2. Under the circumstances the prisoner required to state who is the witness absent and what he is expected to prove. Idem, 695 CONVEYANCES-Fraudulent. 1. A deed executed bona fide to secure a loan of money, not to be enforced for ten years, is a valid deed as against creditors of the grantor. Lewis & als. v. Caperton's ex'or &als., 148 4. Such a deed is valid though the execution of the deed is postponed for five years from the date of the conveyance; and the rents and profits of the property in the meantime are reserved to the grantor. Idem, 148 5. A deed which conveys future rents and profits of property conveyed in other deeds, which were reserved to the grantor in the previous deeds, for the purpose of paying a bona fide debt, is valid against creditors of the grantor. Idem, 148 6. A post-nuptial settlement made by a husband on his wife, of her personal property derived from her father's estate, but of which he retains possession, not having been properly recorded, is void as against the creditors of the husband. Idem, 148 7. A deed made by a husband embarrassed at the time, by which he conveys the proceeds of his wife's land, which had been sold, and the note for the purchase-money made to him, in trust for himself and wife for their lives and the life of the survivor, and during his life to be under his control and management, is voluntary and fraudulent as to crediIdem, 148 tors. 8. A deed which conveys land to secure a bona fide debt due to the grantee, and also a debt to the granfraudulent as to his creditors, and tor's wife, which is voluntary and the nature of which debt is known to the grantee, is null and void as a security for the first as well as the last mentioned debt, as against subsequent incumbrancers and creditors of the grantor.-By two judges. Idem, 148 2. A deed which conveys, without a schedule, household furniture, the various kinds of stock upon a farm, 9. A deed which conveys all the bacon and lard, to secure a bona fide property of the grantor in trust for debt, but not to be enforced for the payment of his debts, is valid, eighteen months after its execution, though it contains a provision that is valid against creditors, though no creditor shall take any benefit made without the knowledge of the under the deed who does not, within creditor, and the grantor was in- thirty days from its date, signify his debted to insolvency at the time.-acceptance of its terms and condiBy two judges. Idem, 148 tions; and further agree to release and acquit the grantor from all further claim for the debt acknowledged therein. 3. A deed which conveys land to secure a bona fide debt, which is not to be enforced for two years, and only then or afterwards upon a notice of the sale for one hundred and twenty days, is valid against crediIdem, 148 tors. Phippen v. Durham & als., 457 1. There is a devise to J, with a |