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II. For Escape against Sheriff:
5. In case, against sheriff, for escape; no recovery can be had, unless the jury finds expressly that it was by his negligence or consent: or, that the prisoner might have been retaken. Roundtree v. Smith, 1 S. 157.
6. Sheriff not liable, for discharging a party brought up on Habeas Corpus before the chief justice of County Court, by order of said justice, though the order be erroneous.
Bender v. Graham, A. R. 269. 7. Action lies against sheriff, under proceedings of unlawful detainer, notwithstanding the penalty, given by statute 1805; the remedy by statute being cumulative.
Sawyer v. Ballew, 4 P. 116.
III. For Malicious Prosecution.
8. Averment, that defendant has abandoned the charge, and that the prosecution is wholly ended, without showing how, if defective, is cured by verdict.
Cotton v. Wilson, A. R. 203. 9. The action will be sustained, if it appear that the defendant without probable cause and with malice instituted the prosecution; and, malice may
be inferred, from want of probable cause. Bennet v. Black, 1 S. 39.
10. The declaration of defendant, as to his title in a certain slave, which he had accused plaintiff of stealing; as, also, his affidavit before the magistrate, are evidence for the plaintiff.
Ibid. 11. When the information, on oath, was for facts constituting a larcenyand the warrant for a robbery. The declaration avering, that the prosecution to have been for a robbery, held fatal on error.
Bennet v. Black, 1 S. 494. 12. The prosecutor is not answerable, in this action, for the mistake of the justice.
Ibid. 13. The felony charged in the affidavit must be substantially averred in the declaration; but it is not essential to recite the whole affidavit.
Hughes v. Ross, 1 S. & P. 258. 14. Defendant has a right to show (as proof of probable cause) what evidence was given on the prosecution, even though such evidence was given by himself alone.
McMahan v. Armstrong, 2 S. & P. 151. 15. Tresspass on the case, is the proper action for damages arising as a consequence, of information lodged by one against another.
Randall v. Henry, 5 S. & P. 367. 16. Information charging any offence for which a party may be arrested and prosecuted—will furnish grounds for action—irrespective of the grade of the offence charged, or, of the technical accuracy of the warrant issued thereon.
Ibid. 17. Whether the making or altering of a pass (given to slave) would constitute forgery at common law or by statute, quere.
But the action lies on this charge, upon which a party has been arrested and prosecuted.
Ibid. 18. Magistrate issuing warrant on a criminal prosecution, on the oath of a party, not reduced to writing, is a competent witness to prove that an oath was taken; and what were its contents- -as it is not essential to a criminal prosecution that the oath should be reduced to writing.
Spears v. Cross, 7 P. 437. See Nuisance. Slander.
1. Per curiam: The paper sent, is not certified as a record of
any court. There is nothing on which to found a suggestion of diminution; the certiorari, therefore, cannot be awarded. James v. Cormack, A. R. 120.
2. To authorize a certiorari, a diminution must be shown, and not presumed.
Mallory v. Caskaden, A. R. 20. 3. And when diminution appears from the transcript; it will be awarded even after argument or errors assigned. Judson v. Eslava, A. R. 71.
4. After argument, plaintiff in error, cannot have a certiorari; but it will be granted at any time to sustain a judgment.
McDonald v. Gayle, A. R. 98.
See, also, Brown & Parsons v. Trover post, 370. 5. Will not be awarded to bring up proceedings upon a Habeas Corpus, had before a judge at chambers, if at all, without the petition be verified.
Butler, A. R. 121. 6. Certiorari for proceedings on writ of forcible entry and detainer; to require bond and security is matter of legal discretion, and the Circuit Court to which it is returnable, may order a new bond.
Childress v. McGehee, A. R. 131. 7. Certiorari to a justice of the peace dismissed, judgment not to be affirmed, but pro ce denio to issue.
Gayle v. Turner, A. R. 204. 8. A second transcript being returned on general certiorari, the first or second must be solely relied on; one cannot be amended by the other, but on application of defendant in error a specific certiorari will be awarded.
Lownsberry & Tylee v. Bullard, A. R. 315. 9. Will be awarded for a copy of the opinion of the judge who tried the case below.
Olds v. Sargent, A. R. 320. 10. Will not be awarded for plaintiff in error to show that after a verdict was returned, it was modified by the court:
Edes v. Duncan, A: R. 389. 11. On certiorari, judgment of justice affirmed, fifteen per cent damages not allowable.
Hudnall f. McCabe, v. McCarta, A. R. 402. 12. Writ of error from county to circuit court, certiorari may be awarded returnable instanter, and cause tried same term.
Lane v. Kirkman, A. R. 411, 370. 13. Will not be awarded for papers referred to in bill of exception, but not sufficiently identified.
Looney v. Bush, A. Ř. 413. 14. When two successive certioraris are sued out, the second is a waiver, of error in the decision on the first.
Payne v. Martin, 1 S. 407. 15. A motion to dismiss for want of sufficient certiorari bond, must be made at the return term.
Ibid. 16. Will not be awarded when it is obvious that the object thereof cannot be obtained.
State v. Williams, 3 P. 454. 17. When a judge upon petition authorizes the issuance thereof, the courts will not afterwards entertain a motion to dismiss, upon the ground that the facts set forth are insufficient.
Casey v. Brant, 1 S. & P. 51. 18. On certiorari, bringing up the judgment of a justice of the peace, no matter can be considered subsequent to such judgment.
Bobo & Johnson v. Thompson, 3 S & P. 385. 19. Certiorari is not grantable to determine a question as to the satisfaction of an execution.
Ibid. 20. Certiorari to remove a judgment of a justice into the circuit or county court, is not grantable on matter .occurring subsequent to the rendition of judgment. But if plaintiff, upon motion to dismiss, overruled, proceed to trial upon his original cause of action, he thereby waives the error in the dismissal.
Wheelock v. Wright, 4 S. & P. 163.
See “Forcible Entry and Detainer."
ILL AND ANSWER.
MISTAKE OF LAW, INFANCY,
HAVE, OR MAY HAVE HAD DEFENCES AT LAW.
THE COMPLETION OF TITLE IN DIVISEE.
I. Bill and Answer.
1. Courts of Chancery will look to matters of substance, rather than to mere technicalities.
Lucas, et al. v. Atwood, 2 S. 378. 2. The general rule “ that whatever is specifically averred in a bill, and not denied in an answer, must be taken as admitted; " must be confined to averments of matters within the knowledge of defendant, a party or privy to the particular transaction; and when the execution of specific articles is averred against parties who cannot be supposed to be privy to the mode and time of execution, it must be proved.
Thompson v. Carson, et al. 1 P. 257. 3. Chancery will not afford relief upon evidence, when there are not material allegations in the bill to support it.
Morgan, ex'r v. Crabb, 3 P. 470. 4. The prayer of a bill is an essential part, and without it no decree can be awarded for complainant.
Driver v. Fordner, 5 P. 9. 5. Under the general prayer for relief, without a special prayer, such relief will be awarded as is consistent with the cause; and where there is a special prayer, accompanied by a general prayer, relief will be granted though variant from that specially applied for.
Ibid. 6. But where specific relief only is prayed for, the court will go no further than its terms require. Therefore a decree cannot be rendered against
a party not sought to be charged by the allegations of the bill, although such party miay be before the court.
Thomason v. Smithson, 7 P. 144.) 7. A bill may however be framed in the alternative asking relief against A, if he has authorized B to collect money due by judgment; or against B, if he has collected without authority.
Ibid. 8. Affirmative allegations in an answer not responsive to the bill, must be proved on the trial.
Lucas v. Bank Darien, 2 S. 280. 9. But where the answer is not traversed, it must be taken as true, as far as it is responsive.
McGowan v. Young, 2 S. & P. 160. 10. The answer of a defendant when responsive to the bill, and not disproved, is to be considered as true.
Paulling v. Sturgus, 4 S. 95–207. 11. An answer responsive to allegations will prevail
, unless the bill be sustained by the testimony of two witnesses, or of one witness and strong concurring circumstances, and proof of a fraud between the parties in a separate and distinct transaction from the one in suit, will not be such a conclusive circumstance as will sustain the allegations denied.
Smith v. Rogers f. Sons, 1 S. & P. 317. 12. When a case is heard upon bill and answer alone, the answer must be taken as true, whether responsive to the bill or not.
Lowry, et al, v. Armstrong & Mallory, 3 S. & P. 207.
Chenny & Bett v, Belcher, 5 S. & P. 134. 13. The rule requiring two witnesses to a responsive answer, does not, it seems, apply where defendant refers to facts not within his own knowledge, and where he gives no satisfactory reasons for having such knowledge of the facts denied, as would justify the response.
Waters v. Creagh, ex'r. 4 S. & P. 410. 14. Thus when an executor responds, denying allegations referring to facts within the knowledge of his co-executor, deceased-to which facts, he himself is a stranger, and gives no explanation of the manner in which he acquires his information concerning them, two witnesses would not be necessary:
Ibid. 15. An answer formally denying that which defendant was not alledged to know, and which from his situation, he could not know with any certainty, is not so conclusive as to require more than one witness on the plainant to establish what is thus denied.
Garrow v. Carpenter & Hanric, 1 P. 359. 16. The principle that an answer can only be overthrown by two witnesses and corroborative circumstances, does not apply to the proof of a written instrument by one witness, which instrument contradicts the answer.
Thomason v. Smithson, 7 P. 144. 17. The answer and so much of the bill as is necessary to explain it, is evidence against the party, but is not evidence against a co-defendant.
Magowan & Wife v. Young, 2 S. 276.
Chapman, et al. 2 S. 163.
II. Demurrer; Cause of Dismissal of Bill, and its Effects.
18. By statute a demurrer in equity is no admission of the truth of the allegations in bill; and it is error to enter a decree in a case where the bill
has been demurred to, without an answer of the defendant, or a decree pro confesso.
Forrest et al, v. Robinson, ex'r, 4 P. 45. 19. When a bill is dismissed for want of prosecution, it operates as a discontinuance, and does not prevent the bringing of a new bill.
McBroom v. Sommerville, 2 S. 515. 20. Bill may be dismissed at final hearing for want of equity, though there be no demurrer, and the answer does not insist on the want of equity by way of demurrer under the statute.
Herbert & Kyle v. Hobbs & Fennell, 3 S. 9. /
Moore v. Deall, 3 S. 155. ) 21. It is a rule of practice that bill may be, on motion, at any time dismissed for want of equity.
Houghy v. Strang, 2 P. 177. 22. The refusal to dismiss a bill for want of security for costs, is not a ground for reversing decree; excuses for non-compliance with the letter of the statute being necessarily subject to the discretion of the court.
May 8. May, exʻrs.v. Eastin, 2 P. 414. 23. Bill should not be dismissed for improper parties, such defect being amendable at any time.
Gayle, et al. v. Singleton, 1 S. 566.
24. A party, it seems, may be joined as defendant for the purposes of discovery alone.
Cato v. Easley, 2 S. 214. 25. All parties in interest should be joined; but to this rule there are exceptions.
Lucas v. Bank Darien, 2 S. 280. 26. Those only against whom process is prayed are to be considered as parties.
Ibid. 27. All parties in interest should properly be brought before the court, but where from the record the rights of a particular party cannot be properly determined as to him, the bill may be properly dismissed without prejudice.
Harris, et al v. Carter, ad'mr. 3 S. 233. 28. The rule that all persons in interest must be made parties, does not include the case of a sheriff having the mere custody of money in litigation.
Smith v. Rogers f. Sons, 1 $. & P. 317. 29. There must exist not only a nominal title or interest, but an interest in fact, or such agency or trust in right of another as to make his recognition as a party essential to the security of the principal, or cestui que trust.
Baker v. Rowan, 2 S. & P. 361. 30. Complainant cannot object in error that the court below decreed without making new parties, when the answer of defendant declared that there were other parties.
Lowry, et al. v. Armstrong & Mallory, 3 S. & P. 207. 31. Creditors for whose use a mortgage deed of lands has been executed need not be made parties in a bill filed by trustee to foreclose.
Swift et al. v. Stebbins & Hunter, 4 S. & P. 447. 32. Bill to compel an administrator to pay a distributive share in the estate of complainant's wife's brother, the wife must be joined when it appears that the complainant intermarried after the intestates decease.
Cherry & Bell v. Belcher, 5 S. & P. 133. 33. But when bill is filed by one distributee, other distributees need not be joined.—semble: and complainant is not precluded by the fact that the orphans court had previously, by settlement, final or otherwise, ascertained the amount to which distributee is entitled, from showing mistakes, or pay