under licenses, a short distance above the place where B. had kept it, and where he owned both banks of the river, but for the same uses and at the cross- ing of the same road: From the time N. took charge of the ferry, B. procured no license, nor exercised any ferry privilege: Held, that B. had relinquished his right, and that N. was entitled to an exclusive right to keep the ferry. Brearly vs. Norris, 514.
2. Where a ferry had been kept by the husband in his life time, the landing of which is on the farm attached to the mansion, and the widow's dower has not been assigned, she is entitled to the ferry as appertaining to her possessory right. Ib.
FRAUDULENT REPRESENTATIONS.
See Administration, 3; Chancery, 13,
1. Though a sale of property be fraudulent on the part of the vendor, being made to defraud his creditors, the purchaser cannot be affected by the fraud, unless he participated in it, with a knowledge of the fraudulent design, and with intent to further the accomplishment of such design. Christian vs. Greenwood, 250. 2. One creditor has the same right to purchase, with his debt, the property of his debtor, that another creditor has to sell it under execution; and this, though he knows that the debtor's object in selling to him, is to deprive the other creditor of the means of making his debt-the effect is but preferring one creditor to another. Ib.
3. But, in such case, the creditor must allow a fair price for the property and not buy more than is necessary for his own protection—at least it would be a suspicious fact, if, unless there be shown good reasons for the property not to be sold separately, he includes several parcels of property when one would pay the debt, and pay the overplus in money. Ib.
4. A purchaser from a fraudulent vendor will be held to be a participator in the fraud, if he have notice of it, and still deal with him, and thereby afford him the means to make his fraudulent efforts against his creditors successful; and this, though he may have paid a full price for the property. Ib.
5. And so, where a purchaser of negroes knew that his vendor had run them off-
FRAUDULENT CONVEYANCES-CONTINUED.
had been told that the vendor had acknowledged that he had run them off to avoid the debts sought to be enforced against them-bought them after he knew they had been run off, and while they were absent, paying mostly in cash, he does not present such a case as entitles him to the protection of a court of equity, but will be held responsible for the fraud of his vendor to the extent of his dealing with him, on the presumption of a fradulent intent on his part, as well as on the part of the vendor. Ib.
6. The voluntary conveyance of a party to his wife or child, though he be in- debted at the time, is prima facie only, and not conclusively fraudulent in re- spect to the claim of an existing creditor; and the presumption thus raised may be met and repelled by proof on the other side. The question of fraud must depend on all the circumstances of the case, looking to the state and condition of the grantor, the extent of the property conveyed, and the direct tendency of the conveyance respecting the claims of creditors. Bertrand vs. Elder. 494. 7. And so, where at the time of a gift to the wife, the husband was largely in- debted, was embarrassed, and though not insolvent his circumstances were doubtful, and his solvency dependent, in a great degree, upon the skilful man- agement of embarrassed mercantile operations, the gift is fraudulent and void as against the prior creditors of the husband. Ib.
1. The statute (secs. 9, 10, p. 371, Gould's Dig.) prohibiting the betting of money at "any game of hazard or skill," was not intended to embrace horse racing. State vs. Rorie et al., 726.
1. Where a father-in-law, upon or after the marriage of a daughter, sends slaves home with her, which are permitted to remain, free from his own control or claim, a gift of the slaves sent is presumed to have been intended by the father to his daughter, unless the contrary is established by proof. Henry vs. Harbi- son, 25.
1. Guardians should be held to account strictly and faithfully for the trust funds that come into their hands; and no compensation should be allowed them where they have neglected their duties, mismanaged the property of their wards, per- petrated positive wrong and injustice towards them. Reed vs. Ryburn, 47. 2. Unless there be fraud in the final settlement of a guardian's account-made upor
the report of an auditor, and in which all parties seemed to acquiesce-there is no reason to disturb the adjudication of the probate court. Ib.
3. Where a guardian presents his account for settlement, and after being examined the Probate Court refuses to confirm it, this is not such final action and judgment as to prevent the court, at a subsequent term, from again examining the account and then affirming it. Rightor vs. Gray, 228.
4. It is the duty of the Probate Court, on the presentation of a guardian's account for settlement, after the public notice required by law, to examine it, and cause any errors in it to be corrected, whether exceptions be filed to it or not. Ib. 5. An order of the Probate Court requiring a second guardian to pay to the first an amount found to be due him on the settlement and confirmation of his account against the ward, without notice to, or the voluntary appearance of, the second guardian, is an irregularity, for which such order will be quashed. Ib.
1. A homestead is not subject to attachment any more than it is to an execution. Grubbbs vs. Ellyson, 287.
1. Gift of a slave, by a mother, to a trustee, for the use and benefit of her daughter. a married woman, and the heirs of her body-to be held by the trustee for her use and benefit-to remain hers during her life, and at her death to go to the heirs of her body-to remain in her possession, but not to be subject to the debts or disposition of her husband. The husband died, the wife married again; and the judgment creditors of the second husband levied upon the slave: Held, on bill by the wife to enjoin the sale of the slave, claiming it to be her separate pro- perty, that from the terms of the deed of gift, being but for a life interest, and appointing a trustee, even without the words that free the property from the disposition of the husband and from his debts, the life interest of the wife was sole and separate property: That the property was subject to absolute dispo sition by her, to the extent of her interest, while she was a widow: That when she entered into the second marriage, the slave continued her separate proper. ty not subject to the control of her second husband, nor liable for his debts. Phillips vs. Grayson, 769.
1. Instructions based upon evidence, which has been excluded by the court, are out of place, and have nothing to rest on. Atkinson vs. Gatcher, 101.
2. The jury are the proper judges of the effect of testimony, and of the weight to be given to it in sustaining any proposition; and an instruction which undertakes to say what weight shall be given to evidence, is erroneous. Ingram vs. Mar- shall, 115.
3. Although an instruction may be erroneous, yet if, upon the whole record, the appellant was not injured by the ruling of the court, the judgment will not be reversed. Ib.
4. Where several instructions are, in effect, the same, and the court has given one, it is no error to refuse to give the others. Johnson vs. Brock, 282.
5. It is error to give instructions that are not applicable to the case, and which may mislead and confuse the jury. Morton vs. Scull, 289.
6. It is not error to refuse an instruction where there is no testimony upon which to found it; nor where it embraces several propositions, part legal and a part il- legal-in such case the instruction as a whole should be refused. Thompson vs. Bertrand, 731.
See, also, Principal and Agent, 5; Practice in Supreme Court, 19.
See Wills and Testaments, 13; County Court, 2.
1. Where the plaintiffs in a suit for freedom, are hired out by the sheriff, pending the
suit, a surety in the bond of the hirer, taken under section 8, ch. 75, Gould's Di- gest, is not incompetent to serve as a juror on the trial. Daniel vs. Guy et al., 50.
2. As a general rule, it is too late, after verdict, to except to the qualification of a juror. Ib.
1. A justice of the peace has jurisdiction of an account for rent not exceeding one hundred dollars. Dicus vs. Bright, 110.
2. If by any manner of proof, the plaintiff might have shown, on the trial before the justice, that he was entitled to recover on the account, the judgment in his favor should not be quashed on certiorari for want of jurisdiction. Ib.
See Executions 12, Practice in Supreme Court, 21.
1. Without attempting to deduce, from the authorities, any general and fixed rule, to be applied in all cases, as to what delay of the execution creditor to sue out process to enforce a levy upon land by a sale, will displace the lien, and let in inter- ing incumbrances, it is sufficient to decide, upon the facts of this case-the judg ment lien being lost by lapse of time-that, by a delay of nearly four years be tween the return of the execution, under which the lands were levied on, and suing out the execution, under which the lands were sold, during all which time no step was taken to enforce the levy, and no excuse given for the delay, the lien of the levy is displaced, as against the intervening rights of a more diligent creditor. Patterson vs. Fowler's Ex., 459.
1. A count upon a written instrument-being a receipt for money to be paid over for particular purposes-for the recovery of damages arising from a failure to pay over the money, is subject to the limitation of five years, not three years. Gulledge vs. Howard, 61.
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