The State ex rel. Cornwell v. Allen.
But the clerk did not enter a final judgment on the ruling upon demurrer.
The record further shows, that, afterwards, the plaintiff moved, on notice to the defendant, for a nunc pro tune entry of such final judgment, and that, at the August term, 1863, "the Court being advised, it is ordered that the record be amended, and that final judgment be rendered, in this case, as asked for in said motion, on the ruling of the Court, at its December term, 1862, upon the demurrer to the last amended complaint, nunc pro tunc, as follows, to-wit: It is considered by the Court, that the plaintiff take nothing by his suit, and that the defendant go hence," &c.
Thus the final judgment of the Court is rendered as of the December term, 1862.
What misled us in the original opinion, was the explanation which the Court below appended to the judgment, and which we copied, as to the consideration, by which it was influenced in rendering the judgment; but we are satisfied that that explanation does not avoid the judgment, so as to render an appeal inoperative.
The petition for rehearing is overruled.
Smith & Mack, Voorhees & Risley, and McDonald & Roache, for the appellant.
R. W. Thompson, B. B. Moffatt, H. D. Scott, and Newcomb & Tarkington, for the appellee.
AN INDEX
TO THE PRINCIPAL MATTERS
CONTAINED IN THIS VOLUME.
1. PRACTICE-PLEAS IN ABATEMENT.-The defence of another ac-
tion pending is matter in abatement, and, as a general rule, must
be pleaded before defences in bar.-Estep v. Larsh,
See TREASURER OF COUNTY, 1. PROVOST MARSHAL, 2.
1. EXPRESS COMPANY, LIABILITY OF.-If an express company re-
ceives for collection, for a compensation, a bill of exchange drawn
in one State and payable in another, and delivers the same to a no-
tary for demand and protest on the day before such demand and
protest should be made, and such notary makes demand and pro-
test one day before the maturity of the bill, whereby the drawer
and indorsers are discharged, the acceptor being insolvent, the ex-
press company will be liable to the holder for the amount of the
bill and interest.-American Express Co. v. Haire,
2. ACTION-PAYMENT OF TAXES.-The tax collector does not, by
reason of a void payment to him of taxes on his duplicate, acquire
any personal right of action against the person making such pay-
ment, for the recovery of the amount of taxes so attempted to be
paid.-Richards, &c. v. Stogsdell et al.,
3. SAME.-A tax collector, in order to avail himself of the remedy
given him by section 193, 1 R. S. 1852, p. 145, must proceed with-
in the time limited in said section.
4. BASTARDY-ACTION.-An agreement and admission by the mother
of a bastard child, that provision for the maintenance of the child
has been made to her satisfaction, will not bar an action by her, for
such maintenance, against the father of the child, unless such
agrcement and admission are entered of record with the consent of
the mother, and the mere fact that she filed her agreement and ad-
mission in Court, is not sufficient to bar her right of action.-The
State ex rel. &c. v. Wilson,
273
5. JUDGMENT ACTION.-A judgment is a debt of record, and an
action will lie to recover it, whether the judgment is foreign or
domestic, and notwithstanding the plaintiff may have a remedy on
the judgment, in the Court where it was rendered, by execution or
otherwise.-Davidson v. Nebaker,
334
ADMISSIONS.
See EVIDENCE, 3.
1. PLEADING ALIEN ENEMY.-An answer, which avers that the de-
fendant is informed and believes the plaintiff has been, and now is,
engaged in, inciting, aiding, and assisting, in the rebellion of the
so-called Confederate States, against the United States, and the Con-
stitution and laws thereof, and has been, and now is, giving aid and
comfort to the so-called Confederate States, is defective and demur-
rable, for not stating more specifically the particular acts of rebel-
lion which the plaintiff has committed.-Meni v. Rathbone,
AMENDMENT.
See PRACTICE, 15.
1. AMENDMENT.-On appeals from justices to the Common Pleas or
Circuit Courts, it is competent for the latter Courts, under the code,
97, to permit amendments to be made to the complaint, and to
charge the party amending with the costs of the amendment only,
unless the cause is delayed by reason of the amendment.-The In-
dianapolis & Cincinnati R. R. Co. v. Clark,
150
2. AMENDMENTS-PRACTICE.-Amendments may be made in the com-
plaint, with the leave of the Court, after the trial is begun, if they
are only designed to make the complaint more certain and specific,
and do not add a new cause of action, so as to injure the defendant
if compelled to proceed.-Landry's Adm'r v. Durham,
232
3. PRACTICE AMENDMENTS.-The nisi prius Courts may, in the exer-
cise of a reasonable discretion, permit amended answers to be filed
after previous answers have been withdrawn.-The City of Aurora
v. Cobb,
Provost Marshal can not arrest without legal process. See CRIMINAL
LAW AND PRACTICE, 1. PROVOST MARSHAL, 2.
ASSIGNMENT-ASSIGNABLE.
See CONTRACTS, 10.
1. ATTACHMENT-GARNISHMENT-PRACTICE.-Action by A and his
wife on three promissory notes made payable to the latter by B.
Answer by B, first to the whole complaint, that A is the owner and
real party in interest in said notes, stating sufficient facts, and that,
in a certain attachment proceeding against A, he had been com-
pelled as garnishee to pay a large part of said notes, &c.; second,
as to the third note, averring the same facts; third, as to the other
two notes, averring the same facts. Demurrers sustained to the
first and third, and overruled to the second paragraphs. In the
attachment proceedings relied upon in said paragraphs, the wife of A
was not a party. B, in his answer in said proceedings as garnishee,
stated that he executed the notes payable to the wife of A for the
assignment to him by her and A of a certain title bond held in her
name, but did not state that A was the owner and real party in in-
terest in said notes. In said attachment proceeding, there was a
sufficient complaint originally filed on two notes, and an affidavit in
attachment, sworn to by the plaintiff therein, stating that he had
a just demand against the defendant therein on said two notes, which
were duc, and that the defendant was about to leave the State, with
intent to defraud, &c. Afterwards, and before the trial, another
note between the same parties fell due, and, by amendment, was in-
cluded in said complaint, but no additional affidavit was filed, and
then judgment in attachment was rendered for the amount of
all the notes. The defendant in the attachment was only construc-
tively notified of its pendency. It is insisted that said attachment
proceeding is wholly void as to the wife of A, because she was not
a party thereto, and that it is wholly void as to them both, because
of the error in taking judgment for the amount of three notes
without an additional affidavit, and that B can not avail himself, as
a defence herein, of the payments made by him as such garnishee.
Held, 1. That the demurrer by A and wife to the first paragraph of
B's answer herein admits the ownership by A of the notes herein
sued on, as alleged in said paragraph.-Schoppenhast v. Bollman
and Wife,
2. Held, 2. That, although said proceedings in attachment were irreg.
ular, and the judgment erroneous, yet, under the circumstances,
they are not absolutely void, but were such as the garnishee might
regard in making payment, and that payment so made would dis-
charge him from further liability to A or his wife.
Ibid.
3. Held, 3. That where the defendant in attachment, in the main ac
tion, is personally served with process, the attachment is not the
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