PRINCIPAL AND SECURITY. 1. In debt on note it is a good bar that defendant was a security, and after the note was due, and while principal was solvent, he gave notice to the plaintiff, and requested him to sue principal, and that plaintiff neglected until principal became insolvent. Bruce v. Edwards, 1 S. 11. 2. A deposit in bank by a principal is subject only to his check, and cannot be pleaded by a security in bank as payment or set off. Lyon v. State Bank, 1 S. 442. 3. A security on bond for the appearance of an insolvent debtor to render his schedule under the act of 1821, is not liable, if the debtor does appear and obtain his discharge, although it be fraudulently obtained, provided the security be not a party to the fraud: Davis' ex'rs. v. Cathey, 1 S. 402. 4. An agreement by the principal in a writ of error bond with the adverse party, that the judgment shall be affirmed, and that no execution shall be levied but upon the non-payment of certain bills which the principal transfers to said party, discharges the security to the bond. Comeggs & Perrhouse v Cox & Harris, 1 S. 262. Į 3 S. 14. } 5. Extension of time given to principal, without assent of security, releases the security. Ellis v. Bibb, 2 S. 63. 3 S. 14. Everett et al. v. United States, 6 P. 166. 6. Security entitled to relief in chancery upon a note given for a larger amount than the principal was legally bound for. Ibid. 7. An execution issued against principal and security, and a part of the money was by the sheriff made by levy and sale of the principal's effects, but he returned it "no money made,” and an alias issued against the security for the whole debt. The sheriff having absconded, it was held that in equity the security was entitled to relief, and that the court had jurisdiction to enjoin for the amount made by the sale. Fryer v. Austill, 2 S. 119. 8. The statute giving a summary judgment on motion against securities on writ of error bond is constitutional. Johnson et al. v. Atwood 2 S. 225. 9. Security to a sealed note will be relieved in equity when payee had for many years induced him to believe he had discharged him, by writing, not under seal, until the principal became insolvent. Teague v. Russell & Moore, 2 S. 420. 10. A security on an injunction bond filed his bill for relief against a judgment rendered against him on the bond. It was held that he could not go into the merits of the previous decree rendered against his principal, nor of the original judgment at law which had been enjoined, no fraud being alledged in the rendition of the decree. Mc Broom v. Sommerville, 2 S. 515. 11. When a security has given verbal notice to the creditor to sue the principal to entitle himself to a discharge, he must show that by neglecting to sue, an injury has been sustained by him; and if such notice of injury be shewn, it is a good defence both at law and equity. The statute in this respect is merely cumulative. Herbert & Kyle v. Hobbs & Fennell, 3 S. 9. 12. However short the time, it will be sufficient to discharge a security, if the creditor by his own contract deprived himself of the legal right to proceed against the principal for any period of time. Comeggs & Perrhouse v. Booth & Bell, 3 S. 14. 13. The statute requiring the surety in order to his discharge, to make a written request of the holder of a note, &c. to sue the principal is cumulative merely, and a verbal request is sufficient as at common law, if the principal becomes insolvent after the request. Goodman v. Griffin, 3 S. 160. 14. An execution will be enforced for the benefit of the surety who has paid it, but the fact must appear by evidence that the surety is to benefited. Clemens &M'Lellan v. Prout & Brahan, 3 S. & P 345. 15. When a surety in a bond to two, was told by one of them "that the principal had settled the matter, and that he need not trouble himself about it-held that this was equivalent to saying that the debt was paid and discharged; and on testimony newly discovered, chancery relieved the security against a judgment on the bond, after the payment of the money to the sheriff. Waters v. Creagh, 4 S. & P. 410. 16. An agreement by one holding claims against an estate on account of the debt of a firm, the survivor of which is the administrator, to arbitrate the claim, which is done, and the award made the judgment of the court, whereby day is given to the survivor, will operate as a discharge of the securities to the administration bond, and of the distributees from all original liability of the intestate in respect to the claim. Pyke v. Searcy et al. 4 P. 52. 17. One notified by a surety under the statute 1821, to put in suit any bond, bill, or note, held against a principal and surety, is not bound first to sue the principal, but must put the claim in suit in a reasonable time, and prosecute the same with diligence; and failing to do so, the surety is discharged. Scott v. Bradford, 5 P. 443. Everett et al. v. United States, 6 P. 166. 18. And the benefit conferred on the surety by the 1st section of this statute is, that if the creditor omit to join the principal in the suit, the surety has the right by notice to his principal, to get judgment against him at the same time judgment is obtained against himself by the creditor. Ibid. 19. In an action by co-surety for money paid on account of his co-suretyship, it is not necessary to aver and prove that the principals have been prosecuted to insolvency. Roberts v. Adams, 6 P. 361. 20. The right of a surety to sue his co-surety, is consequent upon the legal payment of the money for which the sureties were jointly bound, notwithstanding the act of this State also authorizes one co-surety, who has paid money on a judgment, to move against another for his portion of the debt, when the principal has proved insolvent. Ibid. PRIVILEGE. 1. Any person going to, continuing at, or returning from, any muster, court martial, or other military meeting, is privileged from the service of any process, whether bailable or not. Greening v. Sheffield, A. R. 276. PROCHEIN AMI. 1. A prochein ami is one admitted by a court to prosecute for an infant, because otherwise the infant might be prejudiced by the refusal or neglect of his guardian. He is but a species of attorney who may prosecute a right for an infant, but can do nothing to operate to his injury, and therefore cannot release or compromise a suit prosecuted in behalf of the minor. Isaacs per pro ami, v. Boyd et al. 5 P. 388. PUBLIC LANDS AND LAND OFFICERS. 1. The decision of a commissioner as to who is entitled to a pre-emption right cannot be controlled by injunction, as it is a matter of favor, and not of right. Bell et al, v. Payne & Williams 2 S. 414. 2. That the legislature may give power to said commissioners to ascertain who are entitled to pre-emption without appeal, and that such an act is constitutional. Ibid. 3. That the commissioners might at any time before filing their report, alter their decision. Ibid. 4. The act of congress, 29th May, 1830, granting pre-emptions to settlers on public lands, having expressly prohibited all assignments and transfers of the right of pre-emption, prior to the issuance of the patent, a power executed with authority to convey land entered under that act, when the patent should issue, was held to be but a circuitous action, evasive of the act of congress, and consequently void, and that a title obtained under such power was illegal and inoperative. M'Elyea v. Hayter, 2 P. 148. Į Cundiff v. Orms, 7 P. 58. ) 5. Semble that the principle would not necessarily be the same if the bond conditioned to make titles to the land had been executed, and ratified by an execution of the conveyance after the patent has issued; the latter would have constituted a new contract, although the penalty of the bond itself, or damages for its breach, might not have been recoverable. Ibid. 6. The mere reference in the caption of a receiver's certificate, is no sufficient evidence that the right of a claimant to lands was derived under the pre-emption laws of the United States. Ansley et al v. Nolan, 6 P. 379. 7. Patent issued by United States for land originally entered by patentee, and not void on its face, cannot be collaterally impeached in an action of trespass to try title. Masters v. Eastis, 3 P. 368. 8. A patent cannot be considered as carrying any interest to the grantee prior to its conveyance, but it may be shewn to be connected with and to relate back to a previous inchoate, legal title. Jones & Parsons' heirs v. Inge & Mardis' heirs, 5 P. 327. 9. How far one who claims under or through a reserve of a creek Indian under the treaty of 1832, whose contract for title has been approved of by the president of the United States may enquire in a collateral way into the identity or capacity of the Indian parting with his interest-quere? Ibid. 10. But a mere stranger has no right to enquire if the recitals in a patent be true or false. Ibid. 11. When for the purposes of a suit it becomes necessary to connect the recitals in a patent with an antecedent estate, the titles to such antecedent estate must be produced. Ibid. 12. A patent would not of itself be evidence of title in a suit commenced anterior to its date, yet it might not be error to admit such patent in evidence in a suit commenced previous to its issuance, when its object is to show a confirmation of the inchoate legal title, obtained through a certificate, Bullock v. Wilson, 5 P. 338. 13. The United States, in providing for the survey of the public lands, established the rule that sections of land should be held to contain the exact quantity returned by the surveyor general, so that the corners of sections fixed by such survey cannot be removed. Waters v. Commons, 2 P. 38. 14. In the case of sections, the government has arranged their boundaries, marked their lines and corners, and declared their contents; and the purIchaser of an entire section takes all within those limits, be it more or less than the quantity returned by the surveyor; but in the purchase of a less quantity than a section, as between the several holders of a section, the contents of such several parts must be determined by reference to the entire section; and the purchaser of an half or one-fourth section, is entitled to one-half or one-fourth of whatever the section contains. In such case, the one-half mile posts or corners are to be placed equi-distant between the corner of a section, for these one-half mile posts are not definitively fixed by law as in the case of section corners. Ibid. 15. An association formed to prevent competition at the sales of public lands, and to purchase and re-sell at profit, is unlawful. Carrington v. Caller, 2 S. 175. 16. In sales of lands of United States, the law gives the right, and the patent is to be considered not as the title, but as the evidence by which it is shewn that the pre-requisites of a legal sale have been complied with-a purchaser by the act of entry and payment, acquires an inchoate legal estate, which may be aliened or divested in the same manner as any other legal Goodlet v. Smithson, 5 P. 245. title. 17. So, previous to the issuance of a patent, the estate of one in lands purchased thus, and for which he has received a certificate of final payment, may be levied on and sold under execution. Ibid. 18. The receivers of public moneys in the United States land offices, are public officers whose appointments will be judicially recognized in the courts of this State. Bullock v. Wilson, 3 P. 338. 19. No entry will create a legal title to lands adverse to the government. Wright v. Swan, 6 P. 84. QUO WARRANTO. 1. It seems that quo warranto would be the proper remedy to test the right of an individual to an office or franchise, the duties and privileges of which he may be exercising or enjoying State ex rel. Attorney General v. Paul, 5 S. & P. 40. 2. Quere. Whether the supreme court is authorized to exercise the original jurisdiction of granting the writ in the first instance, supposing there be no other objection than that in relation to the jurisdiction. Ibid. RECOGNIZANCE. 1. A recognizance to appear at a term of the court and answer for an alledged offence, must set out specifically the kind of offence charged to have been committed. Goodwyn v. Governor, 1 S. & P. 465. 2. When a party has been recognized to appear at a particulur term to answer for a breach of the peace, and the State takes no step towards a forfeiture of the recognizance, no indictment or presentment being preferred or continuance had, such failure operates as a discontinuance and discharges Ibid. the accused. 3. When the circuit court added to a recognizance a stipulation not required by the statute-it went beyond its legitimate duty and prejudiced the interests of a surety, and such act of the court is void-and the sureties cannot be charged on a scire facias. Whitted v. Governor &c. 6 P. 335. 4. The distinction which is supposed once to have existed at common law between bonds void in part at common law and by statute, is no longer recognized; the true rule is, that bonds or other deeds are void as to such conditions as are illegal, and good as to those which are legal, without the condition is malum in se, or the statute has by expression or implication avoided the whole instrument. Ibid. 5. When a recognizance recites that the defendants, "freely, voluntarily, and of their own will and pleasure" entered into it, they are estopped from pleading that it was extorted by the officer from them. Ibid. 6. When a judgment on a forfeited recognizance describes it, and the particular sum for which each recognizor is bound, and the nature of the undertaking is shewn and the judgment charges each to the extent of his liability and no further-there is no error. Smith et al. v, State, 7 P. 492. 7. The remedy by sci. fa. upon a recognizance estreated, is given by statute and only maintainable upon the supposition, that the liability which it |