POLLY WYNN, plaintiff in error, rs. S. J. BENNING, administrator, defendant in error.
If the bill of exceptions be changed by the Judge after service is acknowledged upon it, it must be served anew. (R.)
This bill of exceptions appears to have been certified on the 11th of July, 1870. Service was acknowledged upon it on the 16th of July. It appears to have been changed after the original draft, and the certificate of the Judge is dated 30th of July, 1870-thirty being written over eleven. Counsel for defendant said that the bill of exceptions had been changed since said acknowledgment, and had thereby become a new cause, and the old acknowledgment did not apply to it. It was dismissed for want of service.
RAMSEY & RAMSEY, for plaintiff in error.
H. L. BENNING, M. J. CRAWFORD, for defendant.
[The Head notes, except those followed by (R) are made by the Judges.]
An action at law does not abate by the bankruptcy of
the plaintiff, and if the assignee in bankruptcy be
discharged, without any interference by him with the
suit, it may proceed in the name of the bankrupt, the
presumption, in the absence of any proof to the con-
trary, being that the action is proceeding for the bene-
fit of the true owner, whoever he may be. Conner vs.
Southern Express Company...
ACCEPTANCE. See Banks.
See Joinder of Actions.
"Pleadings.
ACTUS DEI. See Common-Carriers, 1.
ADMINISTRATORS AND EXECUTORS.
Where there was a contest between two creditors, for the
administration of the estate of their debtor, and it
appeared that W. was a creditor for $2,000,00, and
F. a creditor for $150 00, that both were creditors by
promissory note, and that the estate was insolvent:
Held, That it was error in the Court to exclude from the
jury, evidence that a large portion of the other credi-
tors, some of whom were judgment and mortgage
creditors, preferred the appointment of F. Whilst
such preference was not imperative, it was still mat-
ter proper for the consideration of the jury. Freeman
vs. Worrill.....
There was no defense to an action on a promissory note
and judgment was rendered thereon, and a motion was
made at the same term of the Court to set it aside, on
the grounds that it was not signed by the plaintiff's
attorney, but by the Judge, as provided by the 38th
rule of Court, that the plaintiff was not stated in
the judgment as "administratrix," and because the
judgment did not recite the fact that Wright was
"security." The Court overruled the motion and
allowed the judgment to be amended so as to insert
the word "administratrix," as to the plaintiff, and
the word "security," as to the defendant, Wright:
Held, There was no error in overruling the motion to
set aside the judgment and allowing the same to be
amended. Wright vs. McBride.....
..... 234
2. An action of ejectment was instituted in the name of
a trustee of a married woman against the defendant,
to recover the possession of a tract of land, the title
to which was claimed under a marriage settlement
deed. The demise in the declaration was alleged to
have been made by the lessor of the plaintiff in the
name of the trustee of Melvina Adams, a feme covert.
During the pendency of the suit, the husband of the
feme covert died, and on the trial of the case, the
Court allowed the declaration, on motion of plain-
tiff's counsel, to be amended, by striking out the
name of the trustee, so as to leave the demise in the
name of Melvina Adams as the plaintiff's lessor :
Held, That, under the provisions of the Code, there was
no error in the Court in allowing the amendment, in-
asmuch, as on the death of the husband, the legal
and equitable title to the land was in the widow, and
that she could recover in her own name by showing
title to the land in herself as the plaintiff's lessor.
Childers vs. Adams......
1. Where, in a controversy before the Court of Ordi-
nary as to who should be appointed administrator,
the Court appointed H., who was an heir-at-law, and
he failed to give security, after time granted him for
that purpose, after which, as between W. and F., both
claiming on the ground of being principal creditors,
the Ordinary appointed F., and W. appealed to the
Superior Court, and, at the Court, H. claimed the
right to the administration, and the Court held that
he was estopped by the proceedings before the Ordi-
nary appointing him, and his failure to give the se-
curity:
Held first, That the appeal from the Court of Ordinary
brings up the whole record, and all the parties cited
to appear in the Court of Ordinary are parties to such
appeal; but the issue before the jury is on the judg-
of the Court, and such parties may unite with the ap-
pellant upon the trial of such issue, or may submit
their own claims with his, as having precedence and
right, in law, to such administration, and are not
confined on the appeal to assert the rights of either
contestants, but on the appeal, which is in the nature
of a de novo investigation, may submit their superior
claim or claims. Howard vs. Worrill..
397
Held again, Under the facts of this case, H. had no
right to participate in striking the jury; the appel-
lant and the party contestant appointed by the Ordi-
nary were the parties before the Court, whose rights
in selecting a jury were incident to such appointment
and appeal; and inasmuch as there were no other par-
ties before the Court, and H. had already been heard
in the Court of Ordinary, and failed, from inability,
to avail himself of the judgments in his favor, and
such judgment was, by a Court of competent juris-
diction, and not appealed from by others, it was not
error in the Court to refuse to submit his claims for
administration; for that question had been decided,
and he was estopped by the decision and his failure
to conform to it. Ibid.
An award of arbitrators under the arbitration law will
not be set aside on the ground that it is illegal, because
contrary to the evidence, unless it be so contrary to
the evidence as to require the inference that it is the
result of fraud, accident, or gross mistake of law or
fact on the part of the arbitrators; and if an award
has been attacked upon this ground before the Supe-
rior Court, under the provisions of section 4184 of
the Revised Code, and the question has been submit-
ted to a jury, who have found in favor of the award,
and the Judge has refused a new trial, it must be a
very strong case, indeed, to justify this Court in over-
ruling the Judge and directing a new trial. MeCol-
lough vs. Mitchell........
ARREST OF JUDGMENT.
ASSIGNEE. See Bankruptcy, 1.
When a contract was made by a freedman and a land-
lord, to make a crop for one year, by which the land-
lord was to furnish the land and stock, and the freed-
man to work the same, and to receive for his labor
one-half of the crop made thereon:
Held, That such a contract did not make them partners,
and that if the landlord refused or neglected to pay
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