ACKNOWLEDGMENT. See ADOPTION, 2, a, b, c, d.
1. Adoption of child.-The statutory provisions regulating the adop-
tion of children (Code of 1886, § 2367), are ministerial in their
procedure; not judicial. Abney v. DeLoach, 393.
2. Adoption of child.-The statutory provisions regulating the adop-
tion of children, (Code of 1886, § 2367), though in derogation of
the common law, are not to be construed so strictly as to defeat
the legislative intent. In the articles of adoption construed in
this case, it was held:
(a). The certificate of acknowledgment, no form being prescribed,
may be in the form prescribed for conveyances, or in sub-
stantial conformity thereto.
(b). The recital in the declaration, that the declarants were of
"said county and State" refers to the county and State men-
tioned in its margin, or caption, and shows the residence of
the declarants.
(c). The acknowledgment reciting that the declarants "being in-
formed of the contents of the declaration” acknowledged that
"they executed the same voluntarily on the day the same
bears date," this substantially complies with the Code form
in which the signer "acknowledges" that “being informed,”
he executed, &c. In the one case the officer certifies that
the signer is informed. In the other, the signer acknowledges
he is informed, &c.
(d). The declaration and certificate of acknowledgment thereto,
being dated on the same day, it sufficiently appears that the
former was acknowledged on the day of its date.
(e). The declaration being filed in the office of the probate judge,
and recorded in the book of wills and deeds, the failure of
the judge to enter it "on the minutes of his court," being
the neglect simply of a ministerial duty, does not invalidate
the act of adoption.
(f). The validity of the declaration of adoption, as the act of
the husband, is not affected by the concurring act and signa-
ture of the wife.
(g). The failure to state the age of the child in the declaration
does not invalidate the act of adoption, the identification of
the child in other respects being full and sufficient. Ib. 393.
3. Adopted child; statutory rights of.-Under the statutory provisions
regulating the adoption of children (Code of 1876, § 2745; Code
of 1886, § 2367), an adopted child is declared "capable of inherit-
ing" the estate, real or personal, of the adopting parent; but the
statute is confined to cases of intestacy, or property left undis-
posed of by will; and gives the adopted child no right to share
with a child of the testator under the provisions of a will, devis-
ing property to the testator's "children," executed before the
adoption, and not afterwards changed. Russell v. Russell, 48.
ADVANCES. See LANDLORD AND TENANT, 1, 2; PARTITION OF CROPS,
2, 3, 4.
ADVERSE POSSESSION. See EJECTMENT, 5, 6, 9, 10; MORTGAGE,
15; PROBATE COURT, 4.
AGENCY. See PRINCIPAL AND AGENT.
ALIMONY. See DIVORCE AND ALIMONY.
See ATTACHMENT, 12; CHARGE TO JURY, 8; PLEADING AND
PRACTICE, 12, 13; CHANCERY, 35, 43.
1. When appeal lies; partial settlement of insolvent estate; final decree.
On a partial settlement of an insolvent estate, decrees being ren-
dered distributing among creditors the money ascertained to be
in the hands of the administrator, and awarding execution in
favor of each creditor, this is such a final decree (Code, § 3640)
as will support an appeal to this court. Lehman v. Robertson,
489.
2. Appeal; when returnable.-Under statutory provisions (Code, §
3620), an appeal sued out on the 17th February, 1888, is properly
made returnable on the 12th March. Handley v. Heflin, 600.
3. Special finding of facts by court; revision on appeal.--On the trial
of a statutory claim suit, the facts being admitted, and the court
thereupon finding, specially, that the property belongs to the
claimant, the duty is devolved on this court, on appeal (Code, §§
2743-45), to determine whether the facts are sufficient to support
the judgment. Hardy & Co. v. Ingram, 544.
4. Airmance of judgment; merger.-When a judgment is affirmed by
this court on appeal, the judgment of the lower court is merged
in the judgment of this court, so that it can not be altered by the
lower court, nor can it be amended by this court, after the expira-
tion of the term at which it was rendered. Thomason v. Gray,
559.
5. Same; execution on judgment in favor of infant or next friend.—A
judgment in favor of an infant, suing by his next friend, having
been affirmed by this court on appeal without mentioning the
next friend, an execution subsequently issued will not be quashed
because it follows the affirmed judgment. Ib. 559.
1. Motion to dissolve.--A motion to dissolve an attachment for rent
is for the court to decide, and not for the jury. Harmon Bros. v.
Jenks, 74.
2. Same.-Where, on a motion by defendant to dissolve an attach-
ment, the jury instructed by the court finds thereon against de-
fendant, and also on certain immaterial issues raised by the p.r-
ties on formal but superfluous pleadings and redundant evidence,
which evidence should have been submitted only to the court and
on which the court should have overruled the motion to dissolve,
defendant can not complain of such irregularities. Ib. 74.
3. Sale in consideration of antecedent debt; relationship between par
ties to sale; bona fides; burden of proof; presumption.-Plaintiff
claimed to have purchased certain property of his debtors, apply-
ing it towards payment of his debt. Before the property was re-
moved it was attached by other creditors, and plaintiff brought
suit against the attaching creditors. Held, that if the claim of
the attaching creditors was prior to the alleged sale, the burden
is on plaintiff to show that his vendors were indebted to him,
and that he purchased the property in payment of such indebted-
ness at a reasonable valuation, before any presumption of the
bona fides of the sale to him will arise; and the fact of relation-
ship between the plaintiff and vendors casts on plaintiff the duty
of making clearer and fuller proof of these facts than if they had
not been related. Pollak v. Searcy, 259.
4. Attachment; action for levy; evidence.--Where property claimed to
have been sold is subsequently attached as the property of the
vendors, an offer by the attaching creditors to return the surplus
over and above their claim, is admisible in an action by the ven-
dee against such creditors for making the levy, in case the sale is
found fraudulent, in order to show no intention to make an exces-
sive levy. Ib. 259.
5. Detinue; seizure of goods by sheriff; assignment.—In detinue by
assignee against a sheriff who had simultaneously levied sepa-
rate attachments sued out by M. and by L. creditors, upon goods
assigned for the benefit of creditors, the defendant sheriff alleged
fraud in the assignment, in reply to which plaintiff attempted to
introduce evidence of proceedings to show acceptance of the as-
signment on the part of M. which would preclude him from alleg-
ing fraud, but L. was not shown to have been a participant in
such proceedings: Held, the evidence was inadmissible, defend-
ant having authority under the attachment of L. to seize the
goods if fraud were shown, and to detain enough to pay L.'s
claim; and the question whether it be illegal to seize and detain
more than enough, cannot be raised in detinue. Thompson v.
Jones, 279.
6. Wrongful sale of attached goods.--If the plaintiff in attachment,
wrongfully intervening after the levy, induces the sheriff to sell
the goods in unreasonably large quantities, thereby depreciating
the price and causing a sacrifice, this would be a tort for which
an action might lie; but it can not be proved as an element of
damages in an action on the bond. Jefferson County Sav. Bank v.
Eborn, 529.
7. Separate action of detinue, as element of damages. -The fact that
the plaintiff in attachment had seized the goods under a writ in
detinue, which suit he dismissed before suing out the attach-
ment, has no connection with the attachment suit, and can not
be considered as an element of the recoverable damages. Ib. 529.
8. Offer to compromise as evidence.--In an action on an attachment
bond, the plaintiff can not be allowed to prove that, before the
attachment was sued out, he offered to convey property to the at-
taching creditor, in settlement of the debt, and that the offer was
declined. Ib. 529.
9. Evidence as to quantity of attached goods; refreshing memory of wit-
ness.-The plaintiff can not, for the purpose of showing the quan-
tity of goods seized under the attachment, prove the percentage
of profits on goods sold, though he may prove the amount of
goods on hand at any particular time, with the diminutions and
accretions by sales and purchases; and he may refresh his mem-
ory, as to these facts, by referring to his books, if shown to have
been correctly kept. Ib. 529.
10. Conclusiveness of sheriff's return, as to quantity of goods seized.--As
to the quantity of goods seized under the attachment, the sher-
iff's return on the writ is not conclusive, but the plaintiff may
show that other goods were seized, whether omitted from the in-
ventory by fraud or mistake. Ib. 529.
11. Opinion as to value of goods.-A deputy-sheriff, who, though he
did not levy the attachment, seized the same goods, a few days
before, under a writ in detinue, may testify as to the value of the
goods. Ib. 529.
12. Attachment in justice's court; defects in affidavit.--On appeal to the
Circuit Court, in an attachment case commenced in a justice's
court, advantage can not be taken of defects in the affidavit
which were not objected to before the justice of the peace. Hor-
ton v. Miller & Bro. 537.
13. Variance between aldavit and amended complaint.-When an at-
tachment is sued out by a landlord before a justice of the peace,
on a claim for advances made to his tenant (Čode of 1886, § 3075),
and, on appeal to the Circuit Court, an amended complaint is
filed containing only the common counts, the variance between
it and the affidavit is good matter for a plea in abatement. Ib.
537.
ATTORNEYS AT LAW. See INSURANCE, 4; EVIDENCE, 2.
1. Fees.-Attorney's fees are not included in the term "expenses of
sale" occurring in a mortgage foreclosed under a power of sale.
Thomas v. Jones, 302.
2. Note given to attorney on retainer; failure of consideration—The
retainer of an attorney, in a criminal case, devolves upon him
the duty of rendering all the professional aid and service neces-
sary and proper in the preparation and conduct of the defense,
according to the general routine of such prosecutions, up to the
trial and final judgment, or other termination of the case; and
a note being given on such retainer in a case of homicide, the
death of the maker by mob violence, before trial, does not con-
stitute an entire failure of consideration, though admissible evi-
dence as showing a partial failure. Agnew v. Walden, 502.
BAILOR AND BAILEE. See PRINCIPAL AND AGENT, 4-10.
BASTARDS. See DESCENTS AND DISTRIBUTIONS, 1.
1. Change of venue; bill of exceptions.-Though the ruling of the trial
court refusing an application for a change of venue in a criminal
case may now be reviewed and revised on appeal taken after final
judgment of conviction (Code of 1886, § 4485), and though the
judgment-entry shows the action of the court on such application,
it is necessary, in order to bring such a case up for review, that
there be a bill of exceptions setting out the evidence and show-
ing exception to the ruling of the court. Hawk v. State, 6.
2. Bill of exceptions; selection of jurors.-The ruling of the trial court
in reference to the selection of certain jurors, can only be re-
viewed by bill of exceptions properly framed. It is not sufficient
that the judgment-entry recites exceptions were taken to the
action of the court in reference thereto. Hawk v. State, 6.
3. Clerical misprision in record.--The word “heat” occurring in the
record where the context shows it should have been "heart," it
is regarded and treated by the court as a clerical misprision in
copying the charge, which the charge itself corrects. Lang v.
BOND. See PRINCIPAL AND SURETY, 1.
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