G. M. Cone v. Sarah L. Rees et al. to be a mere surety for his brother, was in direct conflict. The burden of showing that there was such a contract, was upon him, and this was a question for the jury, and we can that their verdict was wrong. not say No 2. We see no error in the ruling as to the admission of evidence over the exception of the plaintiff in error. exception was taken to any such ruling by him. 3. The bill of exceptions does show exceptions to the charge given by the court to the jury, and to the refusal of the court to give certain special charges asked by plaintiff in error, and we notice these briefly. The first exception is to that part of the general charge of the court found in the second paragraph on the second page of the charge. As to this we may say that if, as claimed in the exception itself, it is not applicable to the case, and is not strictly accurate, we do not see that it was at all prejudicial to the defendant below. The next exception is to so much of the general charge on page 8 as is marked on the margin, but we think this stated the law correctly. The third exception to the general charge was to that part on page 13 marked on the margin, to the effect that the payment of $42 of interest then due, alone, was not a good consideration, for the extension of the time of payment of the interest which was then due. This, we think, was correct. The payment of the $42, if due, was only what a maker was bound to do, and unless there was some other consideration, as an agreement to keep the money then due on the note for a fixed and definite period and pay the interest on it at same rate, it would not be binding upon the payee. The court, at the request of the defendant, did properly charge the jury that “an agreement between the payee and principal of a note for the extension of the time of its payment for a fixed and definite period, in consideration of the same rate of interest as that named in the note, is valid without the payment of the interest in advance, and if made without the knowledge of the sureties, will discharge them." G. M. Cone v. Sarah L. Rees et al. The plaintiff asked the court to give the two following special charges, which were refused and exceptions taken, viz: First-If you find from the evidence that plaintiff agreed to extend the time for payment of said note from April 25, 1892, until April 25, 1893, in consideration that W. H. Cone then promised to pay interest thereon, and if you further find that G. M. Cone was surety on said note, then verdict must be for G. M. Cone, unless you find that said extension was made with his knowledge and consent. your Second--Agreement on the part of W. H. Cone to pay interest on the note for the year would be a good and sufficient consideration for the alleged contract for extension of time of payment. The cbjection to the first of these charges is that it leaves out of view entirely the question whether the plaintiff below knew, or had reason to believe, that G. M. Cone was only a surety on the note, which was one of the is sues in the case. He might, as between himself and his brother, have been a surety, and as to the payee, a principaland if so, he might have made a contract with the other principal for the extension of the note which would not have discharged G. M. Cone. We understand the law to be that where a joint and several note is made by two persons to another, without any knowledge on the part of the payee of the fact that one of them is surety only, he may consider and treat them as principals. principals. For this reason the court. was justified in refusing to give this charge. And in our judgment the court had already, in substance and effect, given the second charge asked, and was bound to do so again. For these reasons we think the judgment should be affirmed. J R. McGarry, for plaintiff in error. Milliken, Shotts & Milliken, contra. END OF VOLUME XI. INDEX TO VOLUME XI CIRCUIT COURT REPORTS. ABANDONMENT-See Pauperism. ABATEMENT. 1. Plea in-Insufficient Indictment-That an indictment is insufficient in law to charge a crime, is not a proper ground of a plea in abatement, but must be raised by motion to quash, or by demurrerr. Stahl v. State, 23. 2. Contradicting Record-A plea in abatement which contradicts the record, is bad cn demurrer, Ib. 3. Admits facts as stated—A demurrer filed before motion to quash, or a plea in abatement is presumed to admit the facts as stated in an indictment, and motion to quash or demurrer will not be allowed thereafter. Corthell v. State, 570. ACKNOWLEDGMENT. 508 Lease not acknowledged, but coupled with possession, binds purchasers with notice. Bass Lake Co. v. Hollenbeck, ADMINISTRATOR and EXECUTOR. 1. Where all debts are paid-Where all debts are paid by the parties entitled to the estate, no administrator should be appoint. ed and money expended for the mere form of administration. Catlin v. Huestis, Ex'r, 120 2. Tombstone-When not a proper charge against the estate of the deceased, Ib 3. Insolvent estate-Exception to action of commissioners-Right to appeal to probate court limited to ten days-Where a party has a claim against an estate duly declared insolvent, which claim is partly secured by mortgage on real estate, and the commissioners allow such claim, less the amount which might be thereafter realized from a sale of the real estate by which it was partly secured, such creditor, if dissatisfied with such limited allowance, must appeal from such decision of the commissioners to the probate court within ten days, or such action of the commissioners will be final. Cromwell v. Herron, Adm'r, 448 4 Action of probate court on motion to allow dividend-Appeal to common pleas -Where, in such case, more than ten days after such decision of the commissioners, the creditor makes a motion in the probate court asking that the administrator be required to pay the dividend on the whole amount of the claim, which motion is overruled, no appeal will lie from such action of the probate court to the common pleas, Ib. 5. Equitable claim-Jurisdiction of probate court over equitable claims in the administration of estates-Power to order payment of particular claim out of particular fund. Brown, Adm'r v. Trottner, VOL. XI. 49-(Copyrighted.) 498 ALIMONY. *Modification of decree-Petition for. to be filed in common pleas court, and not in appellate court-So far as a decree of alimony is concerned, the courts have power, not to change the original order upon the facts that existed at the time the order was made, but to modify it upon any changed conditions occurring after the original decree, which would authorize the court to interfere. Meissner v. Meissner, 1 2. Where the decree was, on appeal, entered in the circuit court, and a mandate was issued to the common pleas to carry that decree into effect, such appellate court has no continuing jurisdiction, but the defendant ought to file his petition for a modification in the court of common pleas, Ib. 3. Excessiveness-Alimony in gross in lieu of dower payable in installments-Early death of wife or extravagance in expenditures no ground for reduction Meissner v. Bergman. 539 5. Contempt of court for failure to pay alimony decreed-What evidence required-Ability to perform order of court- Power of court to imprison as for contempt. Effinger v. State. ADULTERATION OF FOOD. 1. 389 Rose's Breakfast Cocoa-Breakfast Cocoa." in the preparation of which the manufacturer took the cocoa bean and extracted a considerable portion of the oil therefrom, and put the product thus prepared in packages, for sale, is not a violation of the statutory prohibition "that an article of food shall be deemed adulterated if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it." Rose v. State, 87 2. An article of food, which is produced by abstracting from a natural fruit a valuable part, is not a compound or mixture, Ib. AGENT See Principal and Agent. ANCESTRAL ESTATE. Equitable estate merged in legal estate- -Where a legal estate in realty and an equitable one, coming through different persons, unite in the same holder, the course of the legal estate, and not that of the equitable, determines whether the holder of both, has an ancestral estate. Higgins v. Higgins. APPEAL, ERROR and REVIEW. 131 1. The defendant having filed in the common pleas her petition to reverse a judgment of a J. P., the court dismissed the same on the ground that no judgment had been entered by the J. P. This was erroneous. If there was error in the proceedings of the justice, the judgment should have been reversed, and the cause retained for trial in the common pleas. If there was no error in the judgment of the justice, it should have been affirmed. Green v. Farrin, 294 2. Appeal-Concurrent error proceedings not admissibleThe perfecting of an appealable case, has the effect to suspend the judgment. The appeal takes the whole case to the appellate court to be reviewed on appeal, and error to the same matter cannot be concurrently maintained. Ginn v. Comm'rs Logan Co., 397 APPEAL, ERROR and REVIEW-Continued. 3. Refusal to charge as requested-Such refusal, if relied on 4. Party in default below-Practice-One of two distinct par- 5. Reversal of case in toto instead of modifying judgment- 538 6 Defective appeal bond-Failure to name obligees-May be 565 1. Payment by mistake of excessive assessment for street im- 67 2. Two improvements of street within five years, amounting to Ib. 3. Assessment for sidewalk not included in the 25 per cent. 4. Ordinance for laying sidewalk-Proper proceeding If the or e- |