out the knowledge or consent of the other partners, he
will be held liable for the same, with interest thereon
from the time of such misapplication, to the other part-
ners. Ib.
4. Where, however, one partner drew $3,500 of the joint
funds of the partnership, with the express assent of his
co-partner, it was held, that he was not liable for interest
thereon, until a demand was made upon him to account
therefor by his co-partner and refused, he being con-
sidered in default only from the time of such refusal. Ib.
5. When the admissions of a member of a firm who is not
a party to the suit competent to charge the other mem-
bers. See title "Evidence." McCutchin vs. Bankston
1. Payment of an execution to the plaintiff by the collect-
ing officer, without stipulating at the time that it is to be
kept open for his benefit, operates as a full discharge
and satisfaction of the debt. See title "Execution."
Arnett vs. Cloud and others
1. May be given in trust by parol. Kirkpatrick, Guardian
vs. Davidson
PLEA PUIS DARREIN CONTINUANCE.
1. By an executor, when his letters testamentary have been
revoked, and an intestacy declared in consequence of
the birth of a posthumous child, showing that fact, and
that an administration has been granted to another to
whom he has delivered over all the goods in his hands
as executor, is a good plea. Broach and Broach vs.
Walker, Exr. -
1. There must be a time averred in the writ, when every
material or traversable fact transpires. Bond vs. The
Central Bank
2. In a suit by the bearer against the maker of the note, the
omission in the declaration to allege the time when the
note was transferred, is cured by verdict, or confession
of judgment. Ib.
3. No promise need be alleged in a declaration, when the
facts set forth show a legal liability without it. Ib. -
4. The 25th section of the original charter of the Central
Bank of Georgia, limited loans to any one person to
$2,500. In a suit by the Bank upon a renewal note un-
der the amended charter of 1829, or on a bill of ex-
change discounted or purchased under the Act of 1838
for the purpose of remitting funds to pay interest on
the States' bonds or foreign debt, it is not necessary to
set out these acts as exceptions to the limitation contained
in the original statute, and to aver that the debt sued on,
was contracted under the powers which they confer.
These acts were passed to extend the original charter,
by clothing the Bank with additional authority, and the
courts are bound to observe their provisions. Ib. - 101
1. A note given for rent of a store-house, is described in
the plaintiff's writ as given for rent, omitting the words
of store-house: held, not to be a fatal variance under
White and others vs. Molyneux
1. When creditor's bill demurrable. See title " Equity."
McGough & Crews vs. The Insurance Bank and McDougald
2. What necessary to allege in creditor's bill. See Ib.
1. New trial will not be granted for the reason that the ver-
dict was contrary to the charge of the presiding judge, if
the charge itself was erroneous. Peck vs. Land
2. Chancery has the right to appoint a guardian ad litem to
an infant plaintiff, to prosecute a suit already commenced
by a former guardian in his behalf, provided no appoint-
ment had been made by the Ordinary after the removal
of the former guardian. Leonard vs. Scarborough and
wife and others -
3. When there has been a judgment entered up against the
securities on the appeal in the court below, they should
be made parties—and on failure, the writ of error will
be dismissed. Dill and others vs. Jones'
See also, Long and others vs. Strickland
Carey, assignee, &c. ads. Rice -
Coffee and others vs. Newsom, Exor.
4. Where no writ of error has been sued out or returned
the case will be dismissed. Harris vs. The State
5. Party appealing paying costs, and giving security for
the eventual condemnation money, need not himself
sign the appeal bond. Pettee vs. Flewellen
6. What is not such a surprise as will entitle a party to a
continuance after a cause has been submitted to the jury
on the appeal. See title "Continuance." McCutchin
vs. Bankston
7. Where the testimony had on the trial in the court be-
low is not embodied in the bill of exceptions, the case
will be dismissed. Smith, admr. vs. Burn & McLendon
8. Where no notice was filed in the clerk's office of the
court below of the signing of the bill of exceptions the
case was dismissed. Ib.
9. When the bill of exceptions was not signed and certifi-
ed within four days after the adjournment of the court
below by the presiding Judge, the case was dismissed.
Ib.
10. If notice of the signing of the bill of exceptions is not
filed in the clerk's office of the court below, the case
will be dismissed. Smith, admr. vs. Burn & McLendon
11. A verdict for the defendant in an equity cause, where an
appeal has been entered, does not operate as an injunc-
tion as a matter of course. Neisler and others vs. Smith
12. Where the security on appeal entered by an intestate
in his lifetime is good at the time, but becomes insolvent
pending the appeal, the administrator of the deceased
appellant is not bound to give additional security. Lati-·
mer, Whiting & Co. vs. The Admrs. of Ware
13. The party sued must make his defence promptly, and
in the proper manner. Stroup vs. Sullivan and Black
14. The security on the appeal must be joined with his prin-
cipal in the writ of error. Morris vs. Wiley, Parish
& Co.
15. The Attorneys at Law against whom no fraud is charged,
nor relief sought, ought not to be made parties with
their clients in a bill to set aside a judgment at law.
Kenan & Rockwell vs. Miller
16. When an appeal is entered, a writ of error will not lie
for errors committed on the trial before the petit jury.
Carter and wife vs. Buchanan
17. Application to amend judgment is an appeal to the dis-
cretionary power of the court. Saffold vs. Keenan
18. When such discretion will not be controlled. Sce title
19. When a writ of error may be amended. See title " Writ
of Error." Long and others vs. Strickland
20. By adding a necessary party when. See under same
title, Carey assignee, &c. ads. Rice
21. A recognisance must show the cause of taking it.
Nicholson vs. The State -
22. A bill of exceptions is sufficient if it contain a clear state-
ment of the points made and decided by the Court below
and the grounds of the decision, although the formal
order and special reasons of the Court below be omitted.
Carey Assignee &c. ads. Rice
23. The Supreme Court will not entertain a suggestion of a
diminution of the record sent up merely because it does
not embody the formal order and special reasons of the
Court below for its decision, if a clear statement of the
points decided and the grounds of the decision appear
therein. Ib.
24. The Supreme Court will not allow a continuance of a
case for the purpose of permitting a party to amend his
writ of error. Ib.
25. Evidence aliunde the record, certified to the Supreme
Court, will not be received to show that an appeal bond
was given below, and who was the security. Coffee and
others vs. Newsom, Exr. -
26. When securities on appeal and securities on injunction
bonds are necessary parties to writ of error. See title
"Securities." Ib.
1. What relief will be given in equity under a general
prayer, where there is also a special prayer. See title
Equity." Butler and others vs. Durham
PRIORITY OF ORDERS FOR COSTS ESTABLISHED.
1. If two Solicitors General hold orders for the payment of
costs, under the 4th section of the 14th division of the
Penal Code of Georgia, the oldest order is entitled to
be first paid. Hackett vs. Jones
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