Dennis v. Tomlinson.

under execution to Hutchinson was properly given and was legal.

The deed executed by the Sheriff to Hutchinson contains the proper recitals, and under the statute is prima ficie evidence of the legality and regularity of the sale to Hutchinson. Mansf. Dig., sec. 668.

According to the evidence heard by the Chancellor, the west half and the west half of the southwest quarter of section II belong exclusively to the heirs of John W. Simpson, deceased; but we do not think that the evidence is sufficient to show that the east half of the southeast quarter of section II belongs solely to them. So far as we can ascertain from the evidence, it belongs to the heirs of Henry T. Simpson, deceased.

The decree of the court below is, therefore, reversed, and this cause is remanded for the court below to take an account of the rents and profits received for the east half of the southeast quarter of section II and to partition it, (the east half of the southeast quarter of section II), and the rents and profits thereof, if any, among the heirs of Henry T. Simpson, deceased, according to their several and respective interests therein, and for other proceedings in respect thereto, not inconsistent with this opinion.

INDEX.

ACCESSORIES.

See CRIMINAL LAW, 4.

ACTION.

See COUNTIES, PARTNERS, 2. COVENANT.

ADMINISTRATORS.

See ADMINISTRATION.

ADMINISTRATION.

See EQUITY, 2. HOMESTEAD. PLEADING AND PRACTICE, 2.

1. ADMINISTRATOR'S SETTLEMENTS: Allowance for debts paid to wards, of in-

testate.

An administrator cannot be credited by payments made on debts which his intes-
tate owed to wards for whom he had been guardian, unless such debts were
proved and allowed against the estate like other claims. Nichols v. Shearon. 75
2. SAME: Allowance for maintenance of minor heirs.

In a suit in equity to set aside a probate sale of land and subsequent conveyance
to the administrator, no allowance can be made for expenditures of the admin-
istrator as guardian of the plaintiffs, while his wards, for their nurture and edu-
cation.

Id.

3. ADMINISTRATOR:

When not entitled to possession of lands.

An administrator is not entitled to the possession of lands to which his intestate
had only a naked legal title, without any substantial interest which can be re-
garded as assets for the payment of debts. Chowning v. Stanfield.
87

4. Power of administrator to compromise debts.

Section 74 of Mansf. Dig., which provides that an administrator may in
certain cases obtain authority from the Probate Court, to compromise debts due
the estate of his intestate, does not take away his common law power to make
such compromise, but relieves him of the burden of proving that he has acted
judiciously. Wilks v. Slaughter.
235
Verbal agreement with, contradicting written contract:

5. ADMINISTRATOR:

Set-off.

In an action by an administrator against the maker of promissory notes, payable to
the plaintiff as administrator, the answer alleged that the notes were made for
certain lands sold by the administrator, and purchased by the defendant, who
had a probated demand against the estate of the plaintiff's intestate; and that
at the time of the sale the defendant had a verbal agreement with the plaintiff,
that payment of the notes should not be exacted, but that the defendant might
retain the amount thereof and apply it on his claim. Held: (1) That the
verbal agreement is contradictory of the written contract and therefore void.
(2) That it is not within the power of an administrator to bind the assets in
his hands by an agreement that a debt contracted by his intestate, may be set
off against one contracted to himself in favor of the estate; and that the answer
therefore presents no defence available either at law or in equity. Bishop v.
Dillard.
285

ADVERSE POSSESSION.

See EJECTMENT. STATUTE OF LIMITATIONS, 2.

AFFIDAVIT.

Mayor of incorporated town may take: Construction of statute.
Section 797 of Mansfield's Digest confers upon the mayor of an incorporated
town within its limits, not only the judicial power of a justice of the peace, as
provided for in section 43, article 7, of the Constitution, but also the general
power of a justice, including the power given by section 2918 of the Digest, to
take affidavits generally. Such mayor may therefore take an affidavit to be
used in prosecuting an appeal from the judgment of a County Court. Robin-
son v. Benton County.

49

AGENTS.

See CONTRACTS, 1.

ALTERATION OF NEGOTIABLE PAPER.

Liability of drawer to holder without notice.

The alteration of a check which was signed and delivered in a complete form for
$8.40, by inserting without the consent, authority or knowledge, of the drawer,
in blank spaces left in the instrument, a cipher before the figure "4" in the
figures "$8.40," on the corner, and by inserting the letter "y" after the word
“eight” in the words "eight dollars” in the body of the paper, and thereby in-
creasing the amount to $80.40, although done in such manner as to leave no
mark or indication of the alteration observable by a man of ordinary prudence,
avoids the check as to the drawer, even in the hands of one to whom it is nego-
tiated, before maturity, for a valuable consideration, and without notice of the
forgery. Fordyce v. Kosminski.

40

APPEALS.

See AFFIDAVIT. HABEAS CORPUS. PRACTICE IN SUPREME COURT, 5, 6. STAIUTE
OF LIMITATIONS, 3, 4.

Appeal from J. P.

An appeal from a justice of the peace must be taken within thirty days after the
judgment is rendered, and cannot be postponed by the continuance of a motion
for new trial beyond that time. Scott v. Meyer.

17

APPROPRIATION OF PAYMENT.

See MORTGAGES, 8, 9.

APPROVAL OF BILLS.

See GENERAL ASSEMBLY.

ASSAULTS.

See CRIMINAL LAW, 3, 6, 7. CRIMINAL PRACTICE, 3, 4-