Though a particeps criminis, called as a witness for the commonwealth on the trial of his accomplice, voluntarily give evidence, and fully, candidly and impartially disclose all the circumstances at- tending the transaction, as well those which involve his own guilt as those which involve the guilt of others, he will yet have no right to a pardon for his own guilt, and therefore no right to demand a continuance of his cause until he can have an opportunity to apply to the executive for such pardon. Commonwealth v. Dabney, 754
What plea is insufficient.
In debt on a judgment, the defend- ant pleads, that by an agreement in writing between the parties the judgment was discharged and sat- isfied by a new contract, for the
payment of a sum in cash, which was then paid, and for the pay- ment of the balance by deferred instalments, whereby the said judgment was remitted and re- leased, and accord and satisfaction thereof made. The plaintiff de- murred to this plea, and the de- murrer was sustained. Herring- ton v. Harkin's adm'rs, 624
1. Construction of clause excepting ac- counts between merchant and merchant out of the statute of limitations. See Merchants' Ac- counts No. 1, 2, and Coalter v. Coal- ter, 85 2. Limitation of suit by one partner against another for account. See Partnership No. 6, 7, and S. C. 85 3. Account between vendor and ven- dee, where specific execution is refused. See Specific Execution No. 1, and Bryan v. Lofftus's adm'rs, 13
Right of prisoner for treason or fe-
lony to discharge if not tried at or before third term after exami- nation. See Criminal Jurisdiction and Proceedings No. 11, and Green v. Commonwealth, 791
1. Amendment of decree in Court of Appeals, and affirmance there- upon. See Appellate Jurisdiction No. 12, and Blessing's adm'rs v. Beatty, 304
2. Affirmance of judgment for an amercement or fine. See Fine, and Abrahams v. Commonwealth, 711, 712
mandable as of right. See Roads, No. 2, and Hill v. Salem Turnpike Co.,
278 2. What appeal must be dismissed for insufficiency of amount in contro- versy. See Lunacy, and Campbells v. Bowen's adm'rs &c., 255
3. What appeal by corporation will not abate by expiration of charter. See Corporation, No. 2, and Bank of Alexandria v. Patton &c.,
528 4. What is an interlocutory decree. See Decree, No. 1, 2, 3, and Cocke's adm'r v. Gilpin,
649 II. What may be reviewed by Appellate Court.
See Husband and Wife No. 1, and Spencer v. Ford, 684, 5
What irregularities in decree may be amended in Appellate Court, and decree thereupon affirmed. See Appellate Jurisdiction No. 12, and Blessing's adm`rs v. Beatty, 304
Affirmance of judgment for amercement. See Fine, and Abra- hams v. Commonwealth, 711, 12
No rule is better settled than that an answer of an infant by guar- dian ad litem cannot be read against him at all, for any pur- pose. Per Baldwin, J. Alexandria v. Patton, &c.,
That a surety for administration will
5. What is no waiver of exception to admission of plea. See Waiver, No. 1, and Campbell's adm'x v. Montgomery,
413 6. Where a court refuses to give an instruction asked, and its opinion is excepted to, if the bill of ex- ceptions does not state that evi- dence was offered tending to prove the case supposed by the instruc- tion, and the court has simply de- clined to give the instruction, such refusal may perhaps be justified, on the ground that the case was merely hypothetical, and the in- struction asked on an abstract question. But if the court not only declines to give the instruc- tion asked, but proceeds to give another in lieu thereof, the infer- ence is a reasonable one, that there was evidence tending to prove the case supposed, and the Appellate Court will not only en- quire whether the law is correctly expounded in the instruction giv- en, but will also enquire whether it is correctly stated in the in- struction asked. Chapman &c. v. Wilson & Co., 284
not be subrogated to creditor's 7. In a suit by one partner against his
remedy against surety in appeal bond given by administrator, see Principal and Surety, No. 4, and Brown v. Glascock's adm'r,
1. What appeal is regularly before the court. 1. From what order of County Court respecting road no appeal is de-
co-partner, for a settlement of the partnership accounts, and for a moiety of a tract of land pur- chased by the defendant in his own name, and paid for out of the partnership funds, the land hav- ing been sold under an interlo- cutory decree, and purchased by the defendant at a sacrifice; and then, after process of Seire facias at the instance of the defen-
dant to revive in the name of the plaintiff's administrator and heirs, and after taking an account of the administration, a final decree be- ing rendered against the adminis- 11. trator personally, for so much of the money decreed to the defend- ant as was not satisfied by the sale of the land; and upon an appeal by the administrator, the court being of opinion that the inter- IV. locutory decree was for too large an amount, and therefore errone- ous: HELD, 1. That the sale of 12. the land under the interlocutory decree, which had never been con- firmed, ought to be set aside on the appeal of the administrator, although the heirs (who were in- fants) had not joined in the ap- peal. 2. That the revival of the suit as to the administrator, if regularly made, could only au- thorize a decree against him de bonis testatoris, and not a decree against him personally; for, if sought to be charged on the ground that he had wasted or failed to account for, or had in his hands, assets of the testator, he ought to have an opportunity of being heard on that subject, in answer to a bill with proper aver- ments. 3. That upon the filing of such a bill, a sale of the land ought to be suspended, until the result of a settlement of the ad- ministration accounts should shew whether that property could not be relieved by the application of the personal assets to any balance in favour of the defendant. Cocke's adm'r v. Gilpin,
III. What objection will not avail in Appel- late Court.
8. What objection for misjoinder of
plaintiffs will not avail in Appel- late Court. See Will No. 2, and Malone's adm'r & al. v. Hobbs & al., 366
9. The decision in White v. Toncray, 9 Leigh 347, that where pleas are rejected an Appellate Court will take it to have been rightly done unless the defendant has excepted, approved and acted on. Harring- ton v. Harkins's adm'rs, 624
10. When objection that jury trial was not awarded in criminal cause is
not available in Appellate Court. See Slaves and Free Negroes, No. 10, and Abrahams v. Commonwealth,
712 Affirmance of judgment for a fine, with damages according to law, (but giving no specific damages) will not be reversed. See Fine, and S. C., 712-13 Amendment of decree, and affirmance thereupon.
In the court below, there having been a clerical misprison in de- creeing jointly against two defen- dants as administrators of a dece- dent, when the pleadings indicated that one of them was sole admin- istrator, and the decree for costs having through oversight been entered against him, as well as against certain heirs of the de- ceased, de bonis propriis, the Ap- pellate Court amended the decree in these particulars. The Appel- late Court being farther of opin- ion that what was declared in the decree would, by necessary im- plication, relieve the heirs from responsibility for certain land, but that it would have been more re- gular to direct a release of that land, decreed such release accor- dingly. And the decree, being thus amended, was thereupon af- firmed. Blessing's adm'rs v. Beatty, 304
V. Reversal for defect in declaration. There being a demurrer to a decla- ration, and an issue in fact, a ver- dict is found for the plaintiff, and it does not appear that any judg ment was given on the demurrer, otherwise than by implication from the fact that final judgment was given for the plaintiff after the verdict. The Court of Ap- peals is of opinion that the demur- rer ought to have been sustained. HELD, the judgment must be re- versed, the verdict set aside, and the cause remanded to the Circuit Court, that it may proceed to judgment on the demurrer, unless the plaintiff shall, on leave ob- tained in that court, amend his declaration; and if the declaration be amended, for such further pro-
14. A decree being reversed in conse- quence of an error committed against one of the appellees, costs decreed to be paid by the appel- lant to the appellees, as the par- ties substantially prevailing. Ashby v. Smith & ux., 15. The Court of Appeals reversing a decree, and there being three ap- pellees, one of whom gets by the decision here what was sought by his bill and denied by the court below, and another of whom pre- vails here to the same extent that he prevailed in the court below, DECREED that the third appellee pay to the appellant his costs. Breckenridge v. Auld, &c.,
1. Construction of the eleventh section of the act of congress of March 16, 1802, fixing the military peace establishment of the United States. United States v. Cottingham, 649
2. A person of full age voluntarily en- listing in the army of the United States is not entitled to be dis- charged from the service upon the ground of his being an alien. S. C. 649
1. No warrant is necessary for appre- hending a slave going at large or hiring himself out contrary to law. Abrahams v. Commonwealth, 712 2. See Commitment, and Young v. Com- nonwealth, 805
Case of an information against a jus- tice of the peace, an informer, and a constable, for assaulting and imprisoning a party, under colour of a warrant of arrest for perjury, issued against him by the justice on the oath of the informer, and executed by the constable; wherein it was held by the Gene- ral Court, upon the evidence, that
1. Who may assign prison bounds bond. See Prison Bounds Bond No. 3, 4, and Vanmeter & al. v. Giles, Gover- nor, 347
II. Rights of assignees of purchase
2. A bond for purchase money of land, executed by the vendee to one of the vendors, being assigned by the obligee to another of the ven- dors and a third person, the ven- dee brings a suit in equity against the vendors and assignees, and ob- tains relief against the payment of the bond; but held that in the condition of the cause there is nothing to justify a decree over in favour of the assignees. ford & al. v. M'Daniel, 3. The vendee of land having paid a part of the purchase money to the assignee of his bond for the same, it turns out that the quantity of the land is deficient, and that the money already paid to the assig- nee is more than the vendee was bound to pay. HELD, he has no equity to recover back the excess from the assignee. S. C. 473 4. The grantee in a deed for land, which is absolute on its face, but in truth a mortgage, having sold the land, and taken from the pur- chaser bonds for the purchase money, and a deed of trust to se- cure the same, and having then transferred the bonds to one who claims to be the assignee thereof for valuable consideration, but ap- pears to have taken the assign- ment under circumstances calcu- lated to throw strong suspicion
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