John Able vs. Commonwealth.
cessories should be indicted and tried, and punished as such.
Wharton, in section 114, says: "One indicted as principal cannot be convicted on proof showing him to be only an accessory before the fact; and we add, nor by proof that he afterwards received the stolen goods; for whether accessory before or after the fact, or both combined, he is not a principal.
On the return of the cause, however, the court should proceed to try the accused, on proper indictment, as an accessory, or remand him to the proper county for such proceedings.
Wherefore, the judgment is reversed, with directions to set aside the verdict and judgment, and for further proceedings consistent with this opinion.
Judge ROBERTSON does not concur, believing that the accused is a principal, because the boy acted as his hand; and that the money, whilst in the boy's possession, was still legally in the owner's possession; and that the indictment was sufficient notice of the offense of which the accused was guilty, and will bar any further indictment, even as accessory.
1. An action by a surety in a note or bond, for money alleged to have
been paid thereon by him for the benefit of his principal, is an action,
on account, for the money so alleged to have been paid, and not an
action on the note or bond itself. Such action being against a per-
sonal representative, the affidavits required by law should be made
to the account. Such affidavits to the note or bond are insufficient.
The note or bond is not the foundation of the action, but the
action is upon the implied promise raised by law that the principal
should refund the amount paid by his surety. - Nutall's adm'r vs.
Brannin's ex'rs__ --
Reversioners may maintain a suit during the life of the life tenant
or tenant by curtesy, to establish their claim to the land, and to
be placed in a condition to make it available, when the time shall
arrive, at which they will be entitled to the use of the estate.
Simmons, &c., vs. McKay, &c.-
3. If one party should accept a deed for land at the instance of another
who has paid the consideration; although the policy of the statute
forbids a resulting trust in the land, its object was not to enable
one party to rob another, of his substance, by undertaking a trust
that the law would not enforce, and, at the same time, refuse to
execute the trust or to return the money.
In case of such refusal, a recovery may be had against the party
who receives the title, on the implied promise, raised by law, to
refund to the party paying for the land, the money laid out and
expended by his consent; for when he receives the title, he shall
thereby be presumed as consenting to the expenditure for his use.
Martin vs. Martin, &c.-.
47
4. Dismission or release of one or more joint trespassers.—The liability of
joint trespassers is several, and any one or all of them may be sued
for the entire wrong; consequently, since the statute of 1836, author-
izing several judgments.
A dismission or release of one or more who are sued for trespass
cannot, per se, release the others.-Sellards, &c., vs. Zomes --- 90、
5. To recover treble the amount of the money lost by a third party at
a gaming table, the name of the relator was properly joined with
"the Commonwealth," as they were equally entitled to the recov-
ery.-Perrit vs. Crouch and the Commonwealth----
199
Two actions on the same grounds, in equity and at law, being prose-
cuted at the same time; on motion of the defendants, the plaintiffs
may be compelled, by order of court, to elect which action they will
prosecute, and to dismiss the other. (Story's Equity, sec. 742; Mit-
ford's Equity, 249-50; 2 Maddox's Chy., 358; Curd vs. Lewis, 1 Dana,
352; Coleman vs. Cross, 4 B. Mon., 269.)— Cleveland's adm'r vs. Lyne,
&c.
383
7. The issue of the summons is the commencement of the action, as pre-
scribed by both the Code and Revised Statutes.- Butts vs. Turner
& Lacy
435
1. Testator devised land to two sons, requiring them to pay four thousand
dollars. It appeared that he considered the land as worth much more
than that amount-that sum being undisposed of, passed by descent
to his heirs. The excess of the value of the land at his death should
be ascertained and charged against the two sons as an advancement,
and they should receive no part of the four thousand dollars paid by
them, until the other descendants were made proportionately equal
with them, as provided by section 17, chapter 30, Revised Statutes.
(1.Stanton, 426.)—Renaker, &c., vs. Lafferty's adm'r........
88
1. SECOND APPEAL IN SAME CASE BETWEEN SAME PARTIES.-All the errors
and irregularities appearing in the original record, and which could
have been corrected by the first appeal, must, on the second appeal,
be regarded as settled and adjudicated, and can afford neither a
cause for a review, or for a rehearing in the court below, nor for
correction on the second appeal in the Court of Appeals.— Mason,
&c., vs. Mason, &c.‒‒‒‒‒‒‒
187
2. The judgment of the circuit court having been affirmed by the Court
of Appeals, and a petition for a new trial having been dismissed by
the circuit court; on the appeal from the judgment of dismission,
the Court of Appeals will only investigate such of the assigned
causes for a rehearing as were not necessarily precluded by the
former adjudication and affirmance.—Ib. ----
The Court of Appeals judicially knows that treasury notes were not
equivalent to money.-Perrit vs. Crouch and the Commonwealth. 199
4. Errors not specified in the grounds on which a new trial was asked in
the court below, must be treated by the Court of Appeals as having
been waived. (Civil Code, sec. 372; Hopkins vs. Commonwealth, 3
Bush, 480.)-Slater vs. Sherman_.
5. Judgment of the circuit court, in arresting judgment and dismissing
the indictment for robbery, being reversed by the Court of Appeals,
a new trial must be awarded by the circuit court.-Commonwealth
vs. Tanner___
6. An appeal may be taken, within five years, to the circuit court, from
any order of the county court admitting a will to record, or re-
jecting it; and from the circuit court to the Court of Appeals,
within one year after the final decision of the circuit court; and
then-
Any person interested, who, at the time of the final decision in
the circuit court, resided out of this State; and any other person
interested, who was not a party to the proceeding, may, within
three years after such final decision of the circuit court, by bill
in chancery, impeach the decision, and have a retrial of the ques-
tion of probate.
An infant not a party shall not be barred of such proceeding in
chancery until one year after attaining full age. (Civil Code, sec.
519, subsecs. 2, 12; Revised Statutes, chap. 106.)-Cleveland's adm'r
vs. Lyne, &c.
383
7. Testator's infant child and devisee having survived more than five
years after his will was admitted to record, and then having died
in infancy, the right of the heirs of such infant to prosecute an
appeal to the circuit court, from the order of the county court,
admitting the will to record, is limited to one year after the death
of such infant. (Civil Code, secs. 22, 884, 519.)—Ib.
8. Where issues of fact have been formed by the pleadings, and both
parties have introduced evidence; the jury properly instructed as
to the law of the case; a verdict returned for one of the parties;
and a motion for a new trial overruled by the court below, the
Court of Appeals will not interpose to set aside the finding, unless
it is clearly and palpably against the weight of evidence; and-
Where there have been two concurring verdicts, and the jury not
misdirected by improper instructions, this court will rarely, if ever,
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