2. An action of assumpsit having been brought on said agreement by the administrator of Mrs. M, and judgment recovered against S. M. for the purchase money agreed to be paid by him for her dower right, and the said judgment is conclusive, and S. M. cannot resort to a court of equity to set up the defence that there never was a completed contract between the parties; which defence he could have set up at law under the general issue. Idem, 158 3. Contracts of agency, when and when not valid. See Principal and Agent, No. 3, 4, and shares are held, and such corporation Chesapeake & Ohio R. R. Co. v. 502 3. For the mode of proceeding in such a case to subject the shares, see Attachments, Idem, 502 No. 2, 3, 4, and 4. In an action of assumpsit the writ and declaration is in the name of a plaintiff which indicates that said plaintiff is a corporation, but it is not stated to be a corporation. The defendant pleads non assumpsit, but does not file au affidavit that the plaintiff is not a corporation. Under the statute it is not necessary that the plaintiff should prove it is a corporation. Code of 1873, ch. 167, § 40, p. 1094. Gillett v. The American Stove and 565 Neilson & als. v. Bowman & als., 732 CRIMINAL JURISDICTION AND PROCONVEYANCES-FRaudulent. 1. If a grantee in a deed be a bona fide purchaser for a valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud to invalidate the deed. Herring & als. v. Wickham & wife & als., the world. 628 2. Fraud cannot be presumed; it must be proved by clear and satisfactory evidence. Idem, 628 3. Marriage is a valuable consideration, sufficient to support a conveyance of property, even against creditors; and in such a case the wife is deemed a purchaser of the property settled on her in consideration of marriage, and is entitled to hold it against all Idem, 628 4. However much a man may be indebted, an ante-nuptial settlement, made in consideration of marriage, is good against his creditors, unless it appears that the intended wife was cognizant of the fraud. And even though it conveys his whole estate, it is not simply on that account void; and when a settlement is made in contemplation of marriage, the law presumes it was an inducement to it, and the courts cannot assume the contrary to be a fact. Idem, 628 CEEDINGS. street in the city of Manchester, the indict1. On an indictment for obstructing a ment is the appropriate remedy; and it was proper in the court to refuse to continue the case until the question of the rights of the defendants to the use of that part of the street occupied by them could be decided in an injunction suit brought by them in the same court in which their claim was set up. Taylor and als. case, 780 2. For what evidence may be introduced on the trial of such an indictment, to lay a foundation for other evidence, to fix the line introduced, see Public Highways, No. 4, 5, 6. of the streets, or as corroborative of that Idem, 780 and "A true gun," which is signed by the fore4. An indictment for a felony is endorsed man. The jury present the paper in court as an indictment, it is read to them by the clerk as an indictment, and assented to by them; it is entered on the record as an indictment, and the prisoner is tried upon it upon the plea of not guilty. Upon a motion ment is necessary on the indictment to conto arrest the judgment-HELD: No endorsestitute it such; and the mistaken endorsement cannot invalidate it. 5. When appellate court will refuse to reverse a judgment of conviction for attempt to commit a rape on an infant under twelve years of age, the conviction being on her Givens' case, evidence. 830 6. The act, Code of 1873, ch. 187, § 18, provides that the offence of rape may be, at the discretion of the jury, punished with death or confinement in the penitentiary. This is a death penalty, and the attempt to do the act forbid is embraced in the statute, Code Idem, 830 of 1873, ch. 195, 10. 7. A person selling liquor without a license, at a time after the passage of the Moffett register act, but before the registers provided for in said act were supplied, is not liable to the punishment of imprisonment imposed by that act, but only to the punishment by fine imposed by former revenue laws. Marxhausen's case, 853 8. M is prosecuted for subornation of perjury, found guilty, and judgment rendered against him. At the same term of the court, the perjury and is acquitted. M then moved the court for a new trial. G having been acquitted of the perjury, M should have a new trial; as if G was not guilty of the perjury, M could not be guilty of subornation of perjury. Maybush's case, 857 but after the conviction of M, G is tried for DOWER. 1. Where land is sold to satisfy a lien existing on it when brought by the husband, the wife has no right of dower in the land. Any right she may have must be in the surplus of the purchase money after satisfying the prior liens. Whether she has an interest in this must depend on the true construction of the statute, Code of 1849, ch. 110, § 3, Code of 1873, ch. 106, § 3. Robinson v. Shacklett, 869 *EQUITY JURISDICTION AND RELIEF. 99 1. In 1856 G made his note for $775, which was endorsed by J, S and K, and which being protested was taken up by K. G then made a deed by which he conveyed in trust certain personal property, and among it a slave named Jenney, in trust to secure these endorsers and five others, equally for all their suretyships for him. At the same time he conveyed to the same trustee on the same trusts certain real estate, all subject to liens. G being insolvent, K, who was his father, undertook to obtain a release of the slave Jenney, and the other parties except S signed of G would release her right of dower in the land conveyed in trust. To induce S to sign the release, K promised to release him from his liability on the said note, and upon that promise S signed the release. K's administrator afterwards recovered a judgment upon the note, and S enjoined it. The trust fund of G was insufficient to pay the claims upon it, and J and S had to pay large amounts for G. Pending the injunction, both J and K became insolvent; and these facts are shown by an amended bill. Upon demurrer to the bills-HELD: The agreement of K to release S, whether an executed or executory contract, is a good ground of relief against the judgment, and S might properly go into equity for relief. a release on the consideration that the wife Sitlington v. Kinney's adm'r, 91 3. S, who is executor of his father, A, and M, who is administrator of T, have a settlement of accounts between S individually and as executor of A and T in his lifetime, extending through a number of years and embracing many items. All these items, brought into the statement, and there is a whether as individual or as executor, are balance against S of $1,176.10. At the foot of the statement S says he is only to be individually responsible for what appeared to be due from him in his individual characapplies for an injunction to stay proceedings; ter. M sues S upon this account, and S which is granted upon his confessing judg ment. In his bill he points out a number of what he alleges are errors in the account, and items which are against his testator's estate- HELD: 1. It is a proper case for relief in equity. Staples v. Turner, adm'r & als., 330 1. What prior suits by the holder of a negotiable note or a second endorser, will not estop the surety in an injunction bond of said second endorser, who has paid the debt, from having recourse against the first endorser. See Sureties, No. 5, 6, and Chrisman's adm'x v. Harman & 2. When there may be a personal decree against the administrator for the legacy paid over by him. Idem, 322 FINES. 1. Fines collected by the sheriff of a county or sergeant of a city or town are to be paid to the treasurer of his county, city or town, and not to the auditor of accounts of the state. 2. It is settled law that a judgment of a court of competent jurisdiction, upon a question direc ly involved in one suit, is conclusive as to that question iu another suit between the same parties. But to this operation of a judgment it must appear upon the face of the record, or be shown by extrinsic evidence that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment was rendered, the whole subject matter of the action 871 will be at large and open to a new contention, unless the uncertainty be removed by extrinsic evidence showing the precise point Idem, involved and determined. 494 2. In a suit on a policy of insurance, the plaintiff was asked what valuation the agent of the insurance company put on the prop erty insured and destroyed by fire? The answer was the valuation stated in the policy by the agent; which was objected to by the counsel for the company on the ground that it was parol evidence offered to vary or explain the written contract of the parties HELD: The testimony was admissible, as it did not tend to vary the contract of the parties, but was in confirmation of it. Southern Mut. Ins. Co. v. Trear, 255 3. Parol evidence is admissible to prove that the forfeiture of a policy had been unconditionally waived, and that conditions inserted in the receipts given for the back premiums was in violation of the agreement for the waiver of the forfeiture. McLean v. Piedmont & Arlington 361 4. What evidence is admissible in an action uuder the act, Code of 1873, ch. 145, § 7 and 9. See Railroad Companies, No. 3, 4, 7, and Balt. & Ohio R. R. Co. v. Wightman's adm'r, 431 5. As to objections to the competency of a party to testify in his own behalf, see Witnesses, No. 1, 2, and Neilson & als. v. Bowman & als., 732 6. For what evidence is admissible as a foundation for other evidence or corroboration of it in relation to the lines of streets in a city, see Public Highways, No. 4, 5, 6, and Taylor & als. case, 780 EXECUTORS AND ADMINISTRATORS. 1. When payment of a legacy by the administrator of the executor of the testator to the administrator de bonis non does not discharge the estate of the executor. See Legacies and Legatees, No. 2, and Stark & als. v. Lipscomb, Tyler, serg't, &c., v. Taylor, audi- *GUARDIAN AND WARD. his executor. 765 1. C died in 1858, leaving a will by which he gave to S $8,000, and appointed w J qualified as guardian of S. time, $3,000, secured by the vendor's lien. M owed to C, for land purchased in his lifeThe legacy to S was reduced to $5,500, and M paid W $1,000, and he paid it over to J. And M having died in June, 1863, his executor proposed to pay to W a part of the debt of M to C. W declined to receive it, but it was understood between them, that if J, as guardian, would receive it, and J's receipt was brought to W, he would credit the amount on M's bond. J, having consulted counsel, and being informed that the judge would authorize the investment of the money in Confederate bonds, J and the executor of M went together to the agent of the Confederate government and gave him $1,500 to be invested in a bond, which was afterwards obtained. And at the same time J filed his petition to the judge for leave to invest, tion, and J gave a receipt for $4,500 to W, which was authorized by an order in vacaand W credited the bond of M with the amount. On a bill filed by S by his next friend, against J and his sureties-HELD: 1. J was guilty of a breach of trust in receiving the Confederate money in discharge of an ante-war debt well secured. Crawford v. Shover & als., 69 2. That the money was not received in the due execution of his trust, and the judge had no authority to order the investment. Idem, 69 2. By an amended bill by S, W and the executors of M were made defendants, and were charged with participating in and instigating the act of J. But the decree is against J and his sureties, and the amended bill is dismissed. On appeal by J-HELD: That the plaintiff, S, being satisfied with the decree, and J in his answer, both to the original and amended bill, having averred that he had acted on the advice of his counsel and with the approval of his own judgment, J cannot complain of the decree as not holding W and M's executor liable with him to S. Idem, 69 3. Infants by their next friend file their bill against their guardian, first to surcharge and falsify the settled account of their guardian, and to have him removed; and second, to have a sale of their lands. The guardian demurs to the bill, on the ground that it is multifarious-HELD: That, as the court can322 not sell the infants' land on a bill filed by them, and no relief on the part of that bill can be given, the court will consider the case as if that part of the bill was not in it; and the demurrer was properly overruled. 112 8. In the stating of a guardian's account, his commissions on the money received by him should be credited at the time of the receipt of the money, and interest only charged Idem, 112 on the balance. Snavely v. Harkrader & als., 4. Pending the case, some of the plaintiffs of the guardian to his ward in the lifetime of 9. The surety of a guardian pays the debt come of age, and they all unite in an amended the guardian-HELD: The debt due by the bill asking the same relief against the guard-guardian is not a fiduciary debt. It is a ian; and the plaintiffs who have come of age ask for a partition of the land and a sale of it, on the ground that it cannot be divided in kind without injury to all. The guardian demurs to the amended bill on the same ground-HELD: The court cannot decree a partition and sale of the land on this bill; and therefore it will be treated as if this part of the bill was not in it; and the demurrer Idem, 112 was properly overruled. 5. Pending the suit all the plaintiffs go off to their relations, in the state of Illinois, and one of these qualifies in that state as guardian of the infants; and they then amend their bill, stating these facts and filing a copy of the proceedings in the Illinois court with a copy of the guardian's bond, and asking that their property may be turned over to their Illinois guardian. The account of the guardian having been settled, showing the amount due to each of his wards, the cause came on to be heard, when the court made a decree removing the first guardian, and that he should pay over to the Illinois guardian The amounts severally reported to be due to his wards-HELD: 1. Under the large discretion vested in the courts in the appointment and removal of guardians, and the circumstances of 872 this case *as developed by the evidence, the court did not err in removing the guardian. Idem, 112 2. It was error to decree the payment of the money of the wards to the Illinois guardian, without proceeding in the mode prescribed by the statute. Code of 1873 ch. 125, § 5. Idem, 112 3. The Illinois guardian may file his petition in this cause for the removal of the personal property of his wards, and the proceedings described by said statute may be had therein. Idem, 112 4. The sale or partition of the infants' land cannot bo made in this case; but the proceeding to effect this object must be as prescribed by the statute. Code of 1873, ch. 124, § 2 to 8. Idem, 112 6. A guardian who receives the money of his wards and does not invest it, but retains it in his own hands, is to be charged interest thereon from the date of its receipt, and not from the end of the thirty days allowed by statute to the guardian for making investments. simple contract debt provable under the bankrupt act, and discharged by it; and a a bar to the recovery of the same by the addischarge to the guardian in bankruptcy is ministrators of the surety. Cromer v. Cromer's adm'rs, HOMESTEAD EXEMPTIONS. 280 1. The 3d exception in the proviso to the 1st section of article XI of the constitution of the state, in relation to homestead exemp- Commonwealth by, &c. v. Ford & 683 2. A homestead exemption cannot be claimed against a fine due the Commonwealth imposed for the violation of the criminal laws. Whiteacre, sheriff, v. Rector & wife, 714 3. The act, Code of 1873, ch. 183, § 3, which authorizes the waiver of the homestead exemption, is not in conflict with the XIth article of the constitution of the state; and if a party, executing his bond or note, waives his homestead exemption as to the bond or note, neither he nor his wife can set up said homestead exemption as against the said bond or note. Reed & als. v. Union Bank of Win- HUSBAND AND WIFE. 719 2 Husband settles property on his wife for her life. She afterwards joins him in executing bonds. After his death, her life estate may be subjected to pay the bonds. Idem, 153 Idem, 112 3. When a legacy to wife, on her death, passes to her husband, see Legacies and Legatees, No. 2, and 4. 7. A guardian receiving from the administrator of the father of his wards, his own bond bearing twelve per cent. interest, as a part of his ward's estate, and not investing the same, is to be charged the same rate of interest upon it to the termination of his guardianship. Idem, 112 878 ing Stark & als. v. Lipscomb, 322 F and his wife E join in a deed conveyland held by a trustee for the separate use of E, to H; F acknowledges the deed, but though E *signs it, she does 1. In a suit on a policy of insurance the plaintiff was asked what valuation the agent of the insurance company put on the property. insured and destroyed by fire? The answer was, the valuation stated in the policy by the agent; which was objected to by the counsel for the company, on the ground that it was parol evidence, offered to vary or explain the written contract of the parties HELD: The testimony was admissible, as it did not tend to vary the contract of the parties, but was in confirmation of it. Southern Mut. Ins. Co. v. Trear, 25.5 2. The P. A. Life Ins. Co. of Richmond, Va., have an agency at Newbern, North Carolina, and the agent there issues a policy on the life of H, or that state, which is assigned to D of New York. D pays the premiums to the agent at Newbern for years. He sends the money to pay the premium for July, 1874, to the agent, who receives it, but does not send him a receipt, nor pay it over to the company, and the company enters the policy as forfeited. D having written several times to the agent and getting no response, does not send the money for the premium for October, 1874, or January, 1875. D sent an agent to Richmond, and after some explanations and an agreement, about which the evidence is conflicting, the secretary at Richmond gave to D's agent receipts for the back premiums; said receipts containing conditions as to the health of H. Upon an action on the policy by D against the company-HELD: 1. Quære: Was the policy forfeited by the failure of D to pay the premium due October 1st, 1874 ? McLean v. Piedmont & Arlington 1. C and P executed their single bill, dated October 18, 1871, whereby they promised "six months after date to pay to H or order the sum of seven thousand dollars, with interest at the rate of 12 per centum per annum from date"-HELD: 1. The contract for interest at the rate of 12 per cent. per annum, was legal under the constitutional provision in force at the time of the contract, and is not affected by the subsequent abolition of that provision. Cecil & Perry v. Hicks, 874 1 *2. The obligors in the bond are bound to pay interest after the rate of 12 per centum, not only up to the maturity of the bond, but after maturity and until the payment thereof. 1. On the trial of an issue devisavit vel non, if one of the parties objected to the admission of a person to testify on the ground of interest; or if objection is made to the admission of evidence of the character of a witness who had testified, on the ground that no proper foundation had been laid for its introduction; and the objections are overruled, and the witness and the evidence is admitted; and the objector does not except at the time or give notice of his intention to except before the verdict is rendered, he waives the objection, and cannot rely upon it upon a motion for a new trial. The same rule applies upon the trial of such an issue as applies on a trial at common law. 361 |