Page images
PDF
EPUB

EVIDENCE-CONTINUED.

59. The court cannot exclude the testimony of a witness, because in the opin-
ion of the court, he denies on his cross-examination, what he had sworn to
upon the examination in chief. Ib.
861
60. One who had purchased a slave, paid the principal part of the purchase
money, and afterwards rescinded the contract, and retained possession of
the slave by a contract of hire, is a competent witness for the vendor, in a
suit by him against one who purchased the slave at a sale by execution, as
the property of the witness. His competency does not depend upon the
fact of the vendor having repaid the purchase money, upon the rescission
of the contract. Babcock v. Huntington,

869
61. What was said or done by either party, upon the rescission of the co-
tract, is a fact, and may be proved as such, when the fact of a rescission
comes in question. Ib.

869
62. A witness who is a director of a bank, cannot be asked whether the other
directors of the bank and himself, knew with what intention a rail road
company issued certain bills or notes. Whetstone v. The Bank at Mont-
gomery,

875

63. A memorandum made by a former executor, of the insolvency of certain
debtors of the estate, is not evidence for, or against a succeeding admin-
istrator. McLaughlin, Adm'r, v. The Creditors of Nelms,
925

64. A judgment against an adminstrator, in favor of the creditors of an insol-
vent estate, which is afterwards reversed by him, is not evidence against
a preceding administrator, when cited for settlement, of either the validi-
ty, or amount of the claims of the creditors; such claims not having been
audited, and allowed, at any term of the court, when he was actually, or
constructively present. Ib.
925
65. It is competent for one joint maker of a promissory note to show by ex-
trinsic evidence that he is a mere surety; and this although he did not in-
form the payee of the fact at the time the note was accepted. Perhaps
the law may be otherwise, where joint promisors are described in the note
as principals, or contract as such with the payee. Branch Bank at Mobile
v. James and Darrington,
949

66. An objection to the introduction of certain written instruments in evi-
dence, because the party objecting has no knowledge of them, is in effect
an admission that in all other respects they were competent testimony.-
Creagh & Forwood v. Savage,

959
67. A judgment is evidence even for or against strangers to it,'of the fact that
such a judgment was rendered. Ansley v. Carlos,
973

68. Evidence of unsatisfied judgments, is competent testimony to raise a pre-
sumption of insolvency. Ib.
973

69. Upon the trial of one for murder, it is not competent to prove the declara-
tions of a third person, tending to the conclusion that he was guilty of the

EVIDENCE-CONTINUED.

murder, and not the prisoner, as evidence in exculpation of the prisoner.
If such third person examined as a witness, had implicated the prisoner
by his testimony, it might have been received for the purpose of discred-
iting him, but was not competent testimony to establish the innocence of
the prisoner, by fixing the crime upon the declarant. Smith, a slave v. The
State,
990
70. Slaves, though living together as husband and wife, may be witnesses for
or against each other, in a criminal case. Ib.

See Contract, 1.

See Corporations, 3, 4.

See Court, Charge of, 6.

See Demurrer to Evidence, 1.

See Forcible Entry and Detainer, &c. 6.

See Orphans' Court, 12.

See Partners and Partnership, 1.

See Practice in Chancery, 17, 24.

See Presumptions and Legal Intendments, 4.

See Principal and Surety, 6.

See Promise, 1.

See Protest, 2, 3, 4.

See Record and Judgment Roll, 1, 2.

See Sheriff and Sureties, 13.

See Usage and Custom, 1.

See Usury, 2.

See Witness, 7, 10, 11, 12.

See Witness, Certificate of, 3.

EXCEPTIONS, BILL OF.

990

1. Although the evidence stated in the bill of exceptions may not seem to
warrant the verdict, yet an appellate court will not reverse where no ques-
tion was made to the jury, on the effect of the evidence. Rhodes v. Sher-
rod,
63
2. When a charge is not full, upon the evidence before the jury, or is even
ambiguous, this is no cause for reversal, when no instructions beyond
those given are asked for. Ib.

63

3. Where the judgment entry recites the matter differently from the bill of
exceptions, the latter will control the former. Landreth's Adm'r v. Lan-
dreth's Distributees,

See Practice at Law, 15.

430

EXECUTION, PROPERTY EXEMPT FROM.

1. To entitle a poor debtor to the benefit of the act which declares, “one
work horse," &c. shall be retained for the use of every family in this State,
"free and exempt from levy or sale, by virtue of any execution, or other
legal process," it is not necessary to prove that the horse had been broke to
gear, or used in harness; but it is enough if he performed the common
drudgery of the homestead, either by hauling wood, drawing the plow,
carrying the family to church, &c. under the saddle or in traces. And
he need not have performed all these services: if he is intended to be
used in any or all of them, or in others of a kindred character, he comes
within the exemption. Noland v. Wickham,

169
2. Quere? May not a debtor with a family, in this State, who has but two
"work horses," elect which he will retain as exempt from an "execution,
or other legal process." Ib.

169
3. To entitle a debtor to the benefit of the act of 1833, which exempts cer-
tain property from execution, or other legal process, it is necessary that he
have a family. Abercrombie v. Alderson,
981
4. Where the owner of tools is not a tradesman, and does not use them him-
self, but employs others to work for him, the tools are not exempt accord-
ing to the common law, from execution for his debts. Ib.

EXECUTION, WRIT OF.

981

1. It is the duty of the sheriff so to provide, that the property levied on by him
will probably be sufficient to satisfy the executions in his hands; but if
he levies on lands which ought, in the estimation of prudent individuals, to
produce sufficient, but does not, this furnishes no reason to charge the she
riff, unless actual injury has resulted to other parties from his mistake, and
he exercises all the diligence required by law of him, when, after an un-
productive sale of land so levied on, he makes an immediate levy on other
property, of value sufficient to satisfy the execution, although that cannot
be sold until after the return day, and is in fact replevied. Powell v. The
Governor ex rel.
36
2. A sheriff is not bound to levy on personal property, when a sufficient levy
can be made, and is made, on land. Ib.
36
3. Nor is the sheriff required to sell at the first sale's day after the execution
is in his hands. He has the discretionary power to sell on any of the sale
days previous to the return day of the execution to be satisfied. Ib. 36
4. A senior creditor does not lose his lien, because a claim is interposed, and
returned to the County Court for trial, but will continue until the suit is
determined, when it may be re-issued. Babcock & Griffin v. Williams, 150
5. The quashing of an execution for irregularity, does not of itself set aside
a sale of land made under it. Nor should the sale be set aside, if the pur-
chaser, without notice of the irregularity, has paid his money, and obtain-

EXECUTION, WRIT OF-CONTINUED.

ed a deed. The onus of proving such notice, lies on the party making
the motion. Chambers v. Stone & Pope,
261

6. Semble. To make a valid levy on personal property, the sheriff must have
the property within his power and control, or at least within his view; un-
less the defendant acknowledges a levy by executing a delivery bond.-
Cawthorn v. McCraw,

519
7. The sale of slaves under execution, at a time and place other than that
prescribed by the statute, by the consent of the plaintiff and defendant, is
not void, if there was no intention to defraud, and no other lien on the
property at the time of sale. Ib.
519
8. Although a fraudulent purchase by the guardian, at a sale under execu-
tion, in favor of his ward, is void as against the creditors of the defendant
in execution, yet a court of equity would uphold the pre-existing lien of
the execution in favor of the ward, direct a re-sale of the property, and sat-
isfaction to be made, before execution creditors whose liens subsequently
attached would be entitled to the proceeds. Ib.

519
9. Where the sheriff is the defendant in a judgment, either in his own right,
or as an administrator, an execution issued thereon, whether in form a fi-
eri facias, or a venditioni exponas, should be addressed to the coroner, and
if it is directed to the sheriff, and placed in his hands to be executed, him-
self and sureties are not liable on the summary remedy provided by statute
for a default in failing to return it. And in such case, if the execution
does not show, that the sheriff is the defendant therein, he may plead the
fact as a defence, and establish it by extrinsic proof. Johnson & Norris v.
McLaughlin,
551
10. A return by the sheriff to a fieri facias, that the judgment had been satis-
fied by the defendant in execution, is bad. Abercrombie, Adm'r. v. Chand-
ler,
625

11. Where the owner of tools is not a tradesman, and does not use them him-
self, but employs others to work for him, the tools are not exempt accord-
ing to the common law, from execution for his debts. Abercrombie v. Al-
derson,

981

See Attachment, 5.

See Bankrupt, 2.

See Lien, 3,

See Orphans' Court, 20.

See Right of Property, Trial of, 2, 3.

See Sheriff and Sureties, 3, 4, 5, 6, 16.

EXECUTORS AND ADMINISTRATORS.

1. An adminstrator cannot, in the settlement of his accounts as such, have a

EXECUTORS AND ADMINISTRATORS-CONTINUED.

credit for boarding and clothing furnished the distributees. Willis' Adm'r
v. The Heirs of Willis,
330
2. Annual, or partial settlements, made by an administrator, or guardian, in
conformity to law, are prima facie to be considered correct, but may, on
the final settlement be impeached by proof, showing their incorrectness,
Ib.
330

3. Although, at common law, a trust on personal property passes to the ad-
ministrator of the estate, yet it is subject to be severed from the adminis-
tration by the appointment of a trustee, under the statute, and when so
severed, the trust can never again unite with the administration. Col-
burn, et al. v. Broughton, et al.
351

4. The personal representative of a trustee, who held the trust estate at his
death, is estopped from setting up another title to defeat that under which
his intestate held. Ib.

351
5. When, upon the settlement of an estate, the administrator makes an agree-
ment in relation to the settlement, with a portion of the distributees act-
ing for the whole, it is binding on the administrator, if all the distributees
afterwards affirm it. Brazeale's Adm'r v. Brazeale's Distributees, 491
6. Partial settlements previously made according to law, are upon the final
settlement to be considered as prima facie correct, but may be surcharged
and falsified by the distributees. Ex parte allowances, made to the ad-
ministrator, without any cause assigned therefor, are nullities. Ib. 491
7. An administrator is chargeable with claims lost by his neglect. He is
prima facie liable for the debts due the intestate, which he did not return
desperate, and for the gross amount of the sales made by him; and for in-
terest from the maturity of the debts, unless by his affidavit he shows he
did not use the money. Ib.
491
8. When a decree of distribution is not made at the final settlement, no such
decree can afterwards be made, without notice to him, setting forth when
the decree will be made, and who claims the right to distribution. Ib. 491
9. A promise by one of two administrators to pay the debt, is sufficient to
take the case out of the statute of limitations, when the action is against
him only, after the decease of his co-administrator. Hall, Weeks & Co. v.
Darrington,
502

10. When a writ is sued out against two administrators, served on one, and
discontinued as to the other, in the declaration, upon the ground of non-
residence within the State, it is the same as if the writ had been sued out
originally against the resident administrator alone. English & English v.
Brown,

504

11. A judgment against the non-resident, jointly with the resident adminis-
trator, is amendable on error, at the cost of the plaintiff in error. lb. 504
12. There is no general rule to determine when costs incurred by an admin-

« PreviousContinue »