EXECUTORS AND ADMINISTRATORS-CONTINUED.

formity to the rules prescribed for his action, there can be no review of the
facts upon which the judgment of the Court is founded, although persons
having an adverse interest were not apprised of the final settlement in-
tended by the administrator. On the other hand, the administrator cannot
prevent a re-examination, when the proceedings are erroneous, because
those actually interested have not appeared. Ib....
......177

7. A person appointed an administrator in another State, may maintain an ac-
tion as provided by statute, if no personal representative shall have been
appointed and qualified here; and where a debtor of the intestate has been
appointed administrator in this State, he may plead his appointment and
qunlification in bar of an action by the foreign administrator brought for
the recovery of the debt. Kennedy v. Kennedy's Adm'r. · · · · · · . . . . . . .391
8. A suit commenced against one partner of a firm, will survive against his
personal representatives, and may be revived against them hy sci. fa. S.
& E. Travis v. Tartt......

.574
9. An administrator with an interest may purchase at a sale made of the in-
testate's estate, and if he uses the assets of the estate in making such pur-
chase, the distributees may elect to consider the appropriation a conver-
sion, or may treat the administrator as a trustee; this being the law, he
cannot make a gift of the property so as to defeat the trust. Julian, et al. v.
Reynolds, et al.
.680
10. Although administration may be granted in another State upon the estate
of one who there dies intestate, if slaves belonging to the estate are brought
to this State by the administrator, a Court of Chancery may here entertain
a bill by a distributee to enforce a distribution. Ib................... .....680
11. Although the writ, and declaration, may describe the defendant as an ex-
ecutor, yet if the declaration shows that the action cannot be maintained
against him in his representative capacity, it will be considered as a de-
scription merely of the person, and a judgment will be rendered against
him in his individual character. Johnson v. Gaines.....
.....791
12. In such a case, where the administratrix was the purchaser, the heirs may
proceed to enforce their lien against a second purchaser with notice, and
cannot be required to resort in the first instance to the sureties of the ad-
ministratrix on her official bond, she having paid no part of the purchase
money, and being insolvent. Strange, et al. v. Keenan, et al.........816
13. Notes made by a trading company, and for which the plaintiff's intestate
might have been liable as a partner, are not admissible to the jury under
the pleas of non-assumpsit, want of, or failure of consideration. McGehee
v. Powell.....

.827

14. Where a judgment is obtained against one as the executor of an estate
after the resignation of the trust, the judgment has no effect upon a suc-.
ceeding administrator, and therefore an execution may lawfully issue to

EXECUTORS AND ADMINISTRATORS-CONTINUED.

the sheriff, although he is the succeeding representative of the same estate.
Wilson v. Auld. ...

....842

15. When an administrator resigns pending a suit against him, the plaintiff is
not compelled to make the succeeding administrator a party in his stead,
though he has the privilege to do so; but may proceed with the suit, in
order to charge the resigning administrator and his sureties, unless the
resigning administrator also shows a due administration, or a transfer of all
the assets to the succeeding administrator. Skinner v. Frierson & Crow..915
16 When the resignation is suggested with the consent of the plaintiff, he
may make the succeeding administrator a party, but if the suggestion is not
assented to, the administrator is put to his plea, which must show not only
the resignation, but the other matters essential to a full discharge. Ib.915
17. After a resignation, the administrator no longer represents the estate, and
a judgment afterwards recovered, will have no effect to charge a succeed-
ing administrator. Ib......

See Assumpsit, Action of, 1.

See Judgment and Decree, 5,

FEME COVERT.

..915

1. Where goods are furnished to a married woman, on the faith of her sepa-
rate estate, or she executes a note as the surety of her husband, there is
such a moral obligation to pay the debt, as will support an action at law on
a promise to pay after the coverture has ceased. Vance v. Wells & Co. 399
2. Where a married womaL, having a separate estate, executes a note in her
own name, it is prima facie evidence that the goods were furnished, or cre-
dit given, on the faith of her promise. Ib.
.399

FENCE.

1. A partition fence, between adjoining proprietors, is, under the statute, the
joint property of both, and each is bound to keep the entire fence in good
repair. One cannot therefore maintain an action of trespass against the
other, for an injury consequent upon an insufficint fence. Walker v. Wa-
trous.....
.493
2. Ifa partition fence is out of repair, and one of the proprietors will not aid
in repairing it, the other may cause it to be done, and recover the value
before the appropriate tribunal, although viewers have not been appointed.
by the Couniy Court. Ib.......

...493

3. If adjoining proprietors enter into an agreement, one to keep up one-half
the fence, and the other the other half, an action of trespass cannot be
maintained by one, against the other, for an injury caused by an insuffi-
cient fence, but the remedy is for a breach of the contract. Ib.

.....493

FERRIES AND BRIDGES.

See Carriers, 1.

FORCIBLE ENTRY AND DETAINER, &c.

1. In the complaint before a justice of the peace, it was alledged, that the
plaintiff'" has the peaceable possession of the north-east quarter of section
five, township eight, range eleven, east, in the Coosa land district, in the
west part of said quarter, being and lying in the State and county aforesaid,
dwelling house and other buildings, and fifty acres of land cleared, more
or less," and after alledging the forcible entry and detainer of the premi-
ses, the complaint proceeds thus, viz: "detaining and holding the same by
such words, circumstances, or acting, as had a material tendency to excite
fear or apprehension of danger." Held-1. That the description of the
premises was sufficiently specific. 2. That the allegation of force was as
direct and full as the statute requires. Huffaker v. Boring...........87
2. The testimony of a witness, in a proceeding for a forcible entry and de-
tainer, that he “he had fodder on the premises by plaintiff's leave, and
plaintiff told witness, that he could have the land, or part of it, during the
year," &c., is admissible as to the first branch, viz: that the witness had
fodder on the premises by plaintiff's permission: because this tends to show
an actual possession, but inadmissible as to the second, because it amounts
to nothing more than a mere assertion of a right by the plaintiff. COLLIER,
C. J., thought the testimony inadmissible, in toto. Ib.......

See Amendment, 8.

See Evidence, 13.

See Judgment and Decree, 2.

See Verdict, 1.

FRAUD.

.88

1. A deed of trust operative as a security for the payment of money, is not
fraudulent per se, on account of the reservation of uses to the grantor.
Graham v, Lockhart.......

....

....9
2. With a view of showing that a sale of property on long credits was fraud-
ulent, by reason of the inadequacy of the price agreed to be paid, it is per-
missible to prove, that the price stipulated is less than the property in
question would have commanded, on the time given. Borland v. Mayo. 105
3. With the view of showing the transaction to be fraudulent, it is compe-
tent to show that the vendee, who purchases from his son-in-law all his es-
tate (which is a large one,) even on time, was himself greatly indebted at
the time of the purchase. Ib. ...
......105
4. If a debtor in failing circumstances makes a transfer of his property, which
is intended, both by the vendor and vendee to prevent what they consider
a sacrifice by sale under execution, and thus enable the vendor, after-

......

wards to give a preference to his own proper creditors over those to whom
he was liable as a surety; such a transaction is a fraud upon the creditors
who are hindered or delayed in the collection of their debts. Ib.....105
5. If a father-in-law purchase from his son-in-law, who is in failing circum-
stances, all his estate, consisting of lands, slaves, furniture, &c., the trans-
action will be looked on with suspicion, and if there are other circumstan-
ces making its fairness questionable, then, altogether, they should be con-
sidered, by the jury, as adverse to the vendee, upon an issue of fraud, vel
non. lb.......

....106
6. Inadequacy of price, upon the sale of property, is a badge of fraud, where
the vendor was greatly indebted; though in itself it may not be sufficient
to avoid the sale, unless the disparity between the true value and the price
paid, or agreed to be paid, was so great as to strike the understanding
with the conviction that the transaction was not bona fide. Ib.....106
7. If mala fides is not attributable to the vendee, but he has acted with fair-
ness, his purchase cannot be pronounced void, at the instance of the vendor's
creditors, merely because its tendency was to defeat or delay them. Ib. 106
8. When the creditors of a vendor levy on property claimed by another, by
a previous purchase and delivery, if any suspicion is cast upon the fairness
of the sale, the jury may infer fraud, unless an adequate consideration is
proved. Seamans, et al. v. White.
.....656

9. A creditor who alledges fraud in the conveyance of a debtor, by a mort-
gage or deed of trust, cannot be prevented from trying this question in a
Court of law, before a jury. Marriott & Hardesty et al. v. Givens........694
10. When the claimant asserts an absolute title to slaves levied on as the
property of a debtor, and the proof shows that a portion of these slaves
were purchased with money or funds of the debtor, and that the bills of sale
were taken in the name of the complainant, the possession remaining with
the debtor, this is evidence of fraud. Ib.......

.....695
11. The assertion by a cestui que trust against creditors, that the grantor in
a trust deed is indebted to him in a larger sum than he is enabled to prove,
is evidence of fraud, unless the suspicion of unfairness is removed by evi-
dence.

Ib........

See Bankrupt, 9.

See Chancery, 5.

See Debtor and Creditor, 5, 7.

See Deeds of Trust, 4.

See Estoppel, 1.

See Evidence, 2.

See Gift, 2.

See Indorser and Indorsee, 1.

..695

FRAUDS, STATUTE OF.

1. Although a contract for the purchase of land, at a sheriff's sale, cannot be
enforced, if not in writing, signed by the party, yet it is unnecessary to aver
this fact in the declaration. Bell v. Owen..............

......312
2. Where a father conveys personal property to third persons, in trust for a
married daughter, and delivers the property accordingly, neither the 2d
section of the statute of frauds, or the act of 1823, "to prevent fraudulent
conveyances," make registration necessary to its operation against the cre-
ditors of the husband. O'Neil, Michaux & Ì'homas v. Teague & Teugue, 345
3. When a contract in reference to the sale of land is signed by the vendor
only, and the purchaser afterwards transfers the written contract to anoth-
er, by indorsement, investing that person with all his interest and claim,
the signature of the purchaser withdraws the contract from the influence
of the statute of frauds. Norman v. Molett.........
.....546
4. S, having a judgment against A, verbally agreed with him that he would
bid off the land of A, subject to an agreement to be afterwards entered in-
to between them. Shortly afterwards they met, and ascertained the amount
due from A to S, including the note here sued upon, and it was then agreed
in writing, that A should have two years to pay the debt, by four equal
instalments, and that upon the payment of the debt, S would convey the
land to A. A failed to pay the instalments, and by consent of A, S sold
the land-Held that the verbal agreement was void under the statute of
frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
brought suit immediately for the recovery of the debt, and therefore did
not exonerate the surety. Agee v. Steels.
..948

See Principal and Surety, 2.

GAMING.

1. A note, or other security, given in consideration of money won at gaming,
is void in the hands of an innocent holder, for a valuable consideration,
unless he was induced to take it, by the representations of the maker.—
Manning v. Manning, et al......
....138

2. The payee of a gaming note, who has transferred it to another, is a com-
petent witness for the maker, and may be compelled to testify as to the
consideration of the note, upon a bill in Chancery, filed by the maker
against the indorsee. Ib......
..138

GARNISHMENT AND GARNISHEE.

1. A garnishment, to obtain satisfaction of a judgment, must issue out of the
Court in which the judgment was rendered; therefore, a garnishment can
not issue out of the County Court, when the judgment was rendered in the
Orphans' Court. Hopper, garnishee, v. Todd.
.....121