A

ADVERSARY POSSESSION.

1. There can be no adversary pos-
session against the Common-
wealth.

Shanks & als. v. Lancaster, 110
2. It is immaterial whether an ad-
versary possession under a claim
of title be under a good or bad,
a legal or an equitable title.

S. C. 111
3. A temporary possession of land
by cutting and sawing timber
upon it, is not such adversary
possession as will give title.

Pasley v. English & als. 141

AMENDMENTS.

1. There is a demurrer to each
count in the declaration, and the
demurrers are overruled; and
then there is a trial on issues
made up on pleas, and a verdict
and judgment for the plaintiff.
On appeal the judgment is re-
versed, verdict set aside, and the
demurrers sustained; and the
cause is remanded for a new
trial, with liberty to the plain-
tiff to amend his declaration.

White v. Toncray, 180
2. It being necessary to plead a
'custom and acquiescence there-

in specially, as a defence to an
action, and the proof thereof
having been admitted under the
general issue on the first trial,
without objection by the plain-
tiff; the defendant will be allow-
ed to amend his pleadings on re-
turn of the case from the Appel-
late Court, and plead the matter
specially. Governor for Liggatt
24
v. Withers,

3. An action brought on a bond
for 188 dollars, which is declared

on as for 108 dollars; the de-
fendant confesses judgment for
the debt in the declaration men-
tioned, and the judgment is en-
tered for 108 dollars. This is not
a clerical error which may be
amended under the 108th section
of the statute of jeofails, 1 Rev.
Code, ch. 128.

Compton v. Cline, 137
4. By mistake a wrong name is in-
serted in an indictment for a
misdemeanor, though the record
of the court and the endorsement
on the indictment shew the cor-
rect name. The indictment can-
not be amended by striking out
the wrong name, and inserting
the name of the person intended.
Buzzard's Case, 694

ANNUITIES.

1. Interest will not be allowed on
the arrears of an annuity which
was to be paid in agricultural
products at a particular place,
the value of which was to be
ascertained by testimony, and in
the absence of any proof of de-
mand at the place where it was
to be paid, or of an agreement
to dispense with the demand and
convert the same into money.
Philips & als. V. Williams &
als.
259

2. Land on which the annuity is a
charge, having been sold during
the pendency of the suit, it will
be decreed to be sold to satisfy
the arrears of the annuity, with-
out noticing the pendente lite pur-
chaser.
S. C. 259

APPELLATE JURISDICTION.

1. Upon a motion to quash a writ
and inquisition founded on a
judgment at law, which motion
is sustained, the writ and in-

quisition are a part of the record,
though no bill of exceptions is
taken; and they will be so treat-
ed in the Appellate Court.
Wallop's adm'r v. Scarburgh &
als.
1
2. If an opinion or instruction of
the Court given on a former
trial, is relied on before the jury
on the second trial, by the party
in whose favor the opinion or
instruction was given, without
asking for the same from the
Court, and a verdict and judg-
ment are rendered for him, the
Appellate Court will consider
the opinion or instruction so re-
lied on; and if it is erroneous,
will reverse the judgment and
award a new trial.

Crawford v. Morris, 90
3. An exception to an opinion of
the Court refusing a new trial,
states all the evidence introduced
on the trial, instead of the facts
proved. The Appellate Court
cannot consider the parol evi-
dence of the appellant; but if
upon the written evidence, and
the parol evidence of the ap-
pellee, the verdict was erron-
eous, the judgment will be re-
versed and a new trial awarded.

Pasley v. English & als. 141
4. A decree of partition being of-
fered in evidence on a trial at
law, as a link in the chain of
title, an objection that it has not
been recorded in the county
where the land lies, cannot be
made for the first time in the
Appellate Court.

Wynn v. Harman's derisees, 157
5. On the trial of a joint action of
trespass against several who
plead jointly, an instruction to
the jury that they may sever the
damages and assess respectively
what, in their opinion, each
party found guilty ought to pay,
is not an error of which a de-
fendant can complain in an Ap-
pellate Court, though the plain-
tiff may.

Crawford v. Morris, 90
6. In a suit by a judgment credi-
tor to set aside fraudulent con-
veyances of property by his
debtor, the judgment and execu-
tion being admitted by the plead-

ings, the failure to file copies of
them in the cause, is not a
ground for reversing the decree
of the Court below, setting aside
the conveyances; especially if no
objection was taken in that
Court to the failure to file them.
M'New v. Smith, 84

7. A decree being affirmed in con-
sequence of an equal division of
the Judges of the Court of Ap-
peals, that settles the principles
of the cause involved in the de-
cree of the Court below. Philips
& als. v. Williams & als.
259

8. Upon an appeal from a final de-
cree made upon a report of a
commissioner, to which there
were various exceptions by the
appellant, the Appellate Court
holds that the Court below erred
in not sustaining one of the ap-
pellant's exceptions to the re-
port; and the decree is reversed
and the cause sent back for the
necessary enquiries to be made
in relation to the subject of that
exception. The decree concludes
all other questions. J. A. Deneuf-
ville's adm'r v. Travis's adm'r, 28
9. Upon an appeal from an inter-
locutory decree, the principles
of the decree, and not mere in-
formalities in the form thereof,
are the proper subjects of con-
sideration in the Appellate Court.
The decree will not therefore be
reversed for such errors of form,
but will be affirmed without
prejudice to the appellant's right
to move the Court below for a
modification of the decree in
these respects.

Woodson trustee v. Perkins, 345
10. A decree against an adm'r be-
ing for six per cent. interest,
when it should have been but
five per cent., and this appear-
ing on the face of the report of
the commissioner, which was the
basis of the decree, and not being
susceptible of being repelled by
extrinsic evidence, it will be cor-
rected by the Appellate Court.
though not excepted to, in the
Court below. Wills's adm'r v.
384
Dunn's adm'r,

11. The authority on which a com-
missioner's report was made, not

1. The order of the County Court
directs a bastard child to be
bound out by the overseers of
the poor. If one overseer of the
poor of the county executes the
indentures it is sufficient. Brewer
v. Harris & als.
285
2. The master covenants with the
overseers of the poor of the
county without naming them,
and the indenture is in the name
of but one; and he and the mas-
ter aione execute it. The in-
denture is valid.
S. C. 285
3. The indenture contains cove-
nants by the master in favour
of the mother of the apprentice,
and also in favour of the ap-
prentice, but they are not par-
ties to it. It is nevertheless
valid; and the remedies will be
adapted to the case. S. C. 285
4. The statute directs that female
apprentices shall be bound out
until they are eighteen years old.
A binding out until seventeen is
valid.
S. C. 285

ARSON.

In an indictment for arson, under
the 4th section of the act 1 Rev.
Code, ch. 160, it is not sufficient
to use the words "set fire to,"
but the word "burn" must be
used.
Howel's Case, 664

ASSIGNMENTS.

D assigns to H, a bond as follows:
"I assign the within bond to H,
and agree not to take any legal
advantage of said H in the in-
dulgence he may give." H as-
signs the bond a few days after
to M, who delays to sue the
obligor until he becomes insol-
vent. D is liable to M on this
assignment.

M'Laughlin v. Duffield, 133

ASSUMPSIT.

Two attachments against an ab-
sconding debtor are levied on the
same property. The first levied
is quashed by the County Court,
but upon appeal, this judgment
is reversed. Pending the ap-
peal, an order is made in the
second case for a sale of the at-
tached effects, and they are sold
and the money paid over to the
creditor in the second attach-
ment. An action for money had
and received, will lie by the first
attaching creditor against the
creditor in the second attach-
ment, for the proceeds of the
sale. Caperton V. M'Corkle &
Adams,
177

ATTORNEY IN FACT.

1. A deed executed by an attorney
in fact, in which he refers to the
power of attorney, but conveys
in his own name as attorney, and
covenants and warrants in his
own name on behalf of his prin-
cipal, the deed being signed with
the name of the principal as by
the attorney, is the deed of the
principal.

Shanks & als. v. Lancaster, 110
2. It is a sufficient execution by an
attorney in fact for his principal,
if he signs the name of his prin-
cipal with a seal annexed, stat-
ing it to be done by him as at-
torney for the principal; or if
he signs his own name with a
seal annexed, stating it to be for
the principal.
S. C. 110

B
BANKS.

If a person appointed a director of
a bank by the executive, under
the act of March 22d, 1837, Sess.
Acts, p. 57, declines to accept
the office or resigns, the execu-
tive is not authorized to make
another appointment, but his
place is to be supplied by the
board of directors.

Bank of Va. v. Robinson, 174

BONDS.

An injunction bond does not bind
the obligors to pay such costs as
may become due. This is not a
defect of which the obligors can
complain. Gillespie & als. V.
Thompson & als.
132

BRIDGES.

1. A public bridge can be estab-
lished by a County Court only in
the mode prescribed by the stat-
ute, 2 Rev. Code, ch. 236, § 7, p.
236. Sampson v. The Goochland
Justices,
241

2. A bridge erected by an individ-
ual for the public benefit, or for
his own purposes, and dedicated
by him to the public, may be es-
tablished by the County Court as
a public bridge; but only in the
mode prescribed by the statute.
S. C. 241
3. The record of the Court must
shew that the order establishing
a bridge, was made by a County
Court constituted according to
the directions of the statute or
the order will be invalid.

S. C. 241
4. The County Court is not bound
to repair or maintain a bridge
erected by an individual, with
whatever view to the public ad-
vantage, and though dedicated
to the public use, and used by
the public, and although on a
public road, unless it has been
adopted by the County Court in
the mode prescribed by the stat-
ute.
S. C. 241
5. If an individual, without au-
thority, for his own purposes, or
even for the public advantage,
constructs a bridge in a public
road, it is incumbent on him to
keep it in such a condition as
not to impede the free and con-
venient use of the highway; and
if he suffers it to become ruin-
ous, so as to operate as an ob-
struction, he becomes guilty of a
nuisance for which he is liable;
but the County Court cannot be
compelled to repair or maintain
the bridge.
S. C. 241
6. An order of a County Court di-
recting a bridge to be repaired

or rebuilt, is not evidence that
the bridge had been previously
established; nor is it sufficient to
establish the bridge, unless the
record shews that the Court was
properly organized for that pur-
pose.
S. C. 241

с

CO-DEFENDANTS.

The practice of decreeing between
co-defendants, will not be ex-
tended further than it has been
already carried:

Law's ex'ors v. Sutherland, 357
COMMISSIONER'S REPORT.

When a commissioner's report will
be presumed to have been made
under an order of the Court. See
Appellate Jurisdiction, and
Wills's adm'r v. Dunn's adm'r, 384

COMPENSATION.

A surviving husband, acting bona
fide, and under the belief that
certain real estate, to which his
wife once had an equitable title,
belonging to himself, sells the
same to bona fide purchasers
without notice. It is held after-
wards, that the estate belonged
to the heirs of the wife, subject
to his life estate. Quære: What
is the measure of compensation
to the heirs of the wife for the
land? Is it the value of the land
at the time of the sale; or the
value, excluding the permanent
improvements made thereon
since the sale, at the death of
the husband? Norman's er'r v.
Cunningham & wife & als. * 63
CONSTITUTIONALITY OF LAWS.

1. The act of March 31st, 1848,
Sess. Acts, p. 51, establishing a
Special Court of Appeals, con-
stituted of Judges of the Circuit
Courts, is constitutional.

Sharpe v. Robertson, 518
2. A per diem compensation to the
Judges holding the Special Court
for the time they sit therein, in
addition to their salaries as

signees, on the top of the bank
of Tennessee river, at any point
that W shall direct, from Flor-
ence to the mouth of said river.
For which W agrees to pay T
25 dollars per ton. T reserves
the privilege of delivering at
Marathon, one third part of said
salt; and for such part delivered
at Marathon, W is only to pay 22
dollars per ton. For all salt re-
ceived by T at the works and not
delivered as above, T is to allow
W 1 dollar 25 cents per bushel
and 46 cents for each barrel, ex-
cept that for all salt lost, by
staving or sinking the boats
used in the transportation there-
of, T is to be charged only 50
cents per bushel and 46 cents for
each barrel. HELD:

1. The agreement of T to trans-
port salt, and of W to pay him
therefor, imports an implied
covenant by W to allow T to
transport, and to furnish him
with the agreed quantities for
that purpose.

2. If the condition of the navi-
gation was such that the salt
could not be transported, T
was absolved from the obliga-
tion to transport it, and W
from the obligation to deliver
it.

3. The agreement is not for the
transportation of an aggregate
amount of salt in the course of
three years, but for the trans-
portation of from 1200 to 5000
barrels in each year.

4. The election of the annual
quantity within the specified
limits, is with W the manufac-
turer, and not with T the car-
rier.

5. T is entitied to transport
within the year all the salt
that W delivers in that year;
and if he fails to do so, his
right in regard to the quan-
tity to be transported the next
year, is not thereby affected.
6. T is bound to transport with-
in the year all the salt he re-
ceives from W; and if he fails
to do so, he is still entitled to.
transport at least 1200 barrels
of W's salt the next year, if
the contract has not then ex-