ERROR, WRIT OF-CONTInued.
account, and afterwards becoming satisfied that the evidence is insufficient
or inadmissible, withdraws the account, the error in admitting the assist-
ant proof is cured. Strawbridge v. Spann. ....
......821
22. Where a party is already before the Court, and the suit is improperly dis-
missed, a writ of error is the proper remedy. Bradford v. Bayles, et al. 865
23. When a demurrer is improperly sustained to a plea, but the party defend-
ant has the benefit of his defence before the jury on another plea, or the
record shows he is entitled to no defence under the plea overruled, the
judgment will not be reversed. Shehan v. Hampton......
See Appeals and Certiorari, 6.
See Bankrupt, 10.
See Court, Charge of, 4.
See Evidence, 67.
See Orphans' Court, 8, 13.
See Right of Property, Trial of, 3.
See Sheriff and his Sureties, 2.
1. The true construction of the two acts of the legislature for the relief of Eliza-
beth Morris, is, that she was made capable of inheriting the lands of her
uncle, James D. Wilson, in the same manner as if herself, her mother, and
her uncle, had been native born citizens. The declaration in the act, that
the land shall not escheat to the State, is a waiver of the right of the State
in her favor only, and will not enable her brother, who is an alien, or was
so at his uncle's death, to inherit as his heir. Congregational Church at
Mobile v. Elizabeth Morris......
.182
2. Whether the saving in favor of creditors in the statute of escheats applies
to the land held by an alien at his death-Quere? But if it does apply in
such a case, the fact of such indebtedness would not prevent the escheat.
Nor could the land be sold by an administrator of the alien, for the pay-
ment of creditors, without authority from the Orphans' Court, as in other
cases. Ib.....
..183
ESTATES OF DECEASED PERSONS.
1. The act of 1843, which requires creditors to file their claims in the clerk's
office of the Orphans' Court, within six months after the estate is repre-
sented insolvent, creates a bar to all claims not so presented. Hollinger,
et al. v. Holly, et al.
.....454
2. The omission to verify the claim so filed, by the affidavit of the claimant,
is not ground for rejecting the claim, unless an exception to it is filed with-
in the time allowed by the act. lb................
..454
3. When the petition of administrators claiming distribution as the represen-
tatives of a distributee is dismissed, and the final settlement in the Or-
phans' Court is made with other parties, the proper mode to revise the pro-
ceedings rejecting the claim, is by certiorari, and a writ of error will be
dismissed. Graham, et al. v. Abercrombie, et al.
..552
4. The interest of a distributee in an unsettled estate, is the subject of as-
signment; if one is made, it divests the interest of the distributee, so that
no proceeding can be had by his representatives against the administrator;
his assignee is thereby invested with all his rights, and they may be as-.
serted by him in his own name. Ib.
..552
5. The proceedings in a testamentary cause being reversed back to an ac-
count of distributable assets, in a contest between distributees and execu-
tors, it was remanded, that a guardian should be appointed to an infant
distributee, with leave to the guardian to investigate the accounts; Held,
that the privilege did not extend to the executor, he being named as the
testamentary guardian, and after the return of the suit to the Court below,
qualifying as such. Sankey's Ex'rs v. Sankey's Distributees. ........601
6. As soon as the fact was disclosed that the infant distributee was repre-
sented by the executor, the parties, were complete, and the Court should
have proceeded to render judgment on the former verdict; which, under
these circumstances, it was irregular to set aside. Ib...... ....602
7. It is erroneous to render a joint judgment in favor of all the distributeés.
The proper judgment is a several one for the amount coming to each, and
if an infant is represented by the executor, as guardian, he should be per-
mitted to retain his ward's portion. Ib......
...602
8. When the record states, "that the exhibits and accouuts, were ordered to
be recorded, and spread upon the minutes of the Court, and reported for
allowance," at a particular day, more than forty days afterwards, it is equi-
valent to stating that the accounts were examined and audited. Parks v.
Stonum.....
.752
9. When the Orphans' Court of Conecuh directed notice to be published of
the time of the settlement for six weeks, in a paper in Mobile, it is suffi-
cient if the first publication is made as soon after the Court as might be
Ib..
.....752
10. Where land is sold by order of the Orphans' Court, to make more equal
distribution among the heirs, and security is not required to be taken for
the purchase money, the heirs have an equitable lien upon the land for the
purchase money, which may be enforced either against the original pur-
chaser, or against a purchaser from him, with notice of the facts. Strange
et al. v. Keenan....
See Advancement, 1, 2, 3, 4.
See Executors and Administrators, 12.
See Wills and Probate of, 4.
1. B. was indebted to S. (his father-in-law,) or S. was bound to advance mo-
ney for him, B. sold to L. a house and lot, and took his note payable to S.
for the purchase money; B. had been a partner of F. in a mercantile es-
tablishment. Upon the dissolution of their partnership, the firm were in-
debted to B. more than $1,000, which he was to retain, and appropriate the
residue of the effects to the payment of the joint debts; some of the de-
mands due B. and F. were placed by the former in the hands of S. as a jus-
tice of the peace, to collect, who acknowledged their receipt from, or his
accountability to S: Held, that the inducement for taking the note and re-
ceipt in S's name, was sufficient to free the transaction from the imputa-
tion of fraud; that a debtor may prefer one creditor to another, and the rela-
tionship between B. and S. could not prevent the latter from securing him
self; further, that by making the note payable to S., L. admitted that he
was entitled to the money, and cannot be heard to alledge the reverse.
Lowrie v. Stewart......
.....163
2. Where a writ of capias ad satisfaciendum issues at the suit of one man for
the use of another, the defendant is arrested thereon, and enters into bond
with sureties, payable to the nominal plaintiff, for the use, &c. as express-
ed on the face of the process; conditioned that the defendant will continue
a prisoner within the limits of the prison bounds; in an action brought
thereon in the name of the obligee for the benefit of the party shown to be
really interested, a surety is not estopped from alledging that the obligee
died previous to the institution of the suit. Nor does the bond amount to
an admission that the obligee was living when it was executed. Tait,
use, &c. v. Frow.
.543
See Lessor and Lessee, 3.
1. To let in a deed as evidence, it is not essential that the subscribing wit-
ness should remember its execution. His statement that his superscrip-
tion as a witness was genuine, and that it would not have been placed
there unless he had been called to witness it, is sufficient. Graham v.
Lockhart....
.....10
2. Where the intention is declared to attack a deed of trust for fraud, it is
competent for the trustee to show that his action, with reference to the
trust property has been in accordance with the deed, for the purpose of re-
butting any presumption which might arise from the acts of the grantor.
Ib. . . . . .
3. Where notes and other written securities are described as the considera-
tion of a deed of trust, parol evidence may be given of them, without pro-
ducing them to the jury, when they are not within the control of the party
offering the evidence. Ib.......
...10
4. The admissions of a trustee having no beneficial interest in the property
conveyed to him, cannot be given in evidence to defeat a deed of trust ex-
ecuted solely for the benefit of others. Ib.......
......10
5. Where one of the trusts of a deed was to pay certain outstanding judg-
ments, and afterwards these were superseded by writs of error bonds, it is
competent for the trustee to show their payment by him, after their affirm-
ance. Ib.........
6. It is erregular to permit a witness to give evidence of the general law mer-
chant. Hogan & Co. v. Reynolds.......
...59
7. It is not improper to permit the parties to ask a witness, whether he in-
tended to convey to the jury a specified impression, by what he had previ-
ously stated. Ib.....................
8. A witness having stated, that one of the firm sued, had borrowed a sum
of money from a third person, of which a part had been paid from the firm
effects since its dissolution, also stated, that he thought the note of the firm
was given for the money so borrowed, but was not certain whether it was
the note of the firm sued on, or the note of another firm, of which the same
partner was a member; under these circumstances the evidence is admissible,
although the note is not produced, or its absence accounted for. Ib. 59
9. A receipt in these terms, to wit: "Received of W. R. one of the executors
of W. W. two notes of hand on W. G. & J. McN. amounting to $1,750,
due 1st January, 1838, which we are to collect, or return the same to the
said R.with interest from the time it was due," is open to explanation by
parol evidence, so as to show whether the words with interest, &c. was in-
tended to refer to the return of the money, by the signers, or to the amount
which was to be collected from the notes. Ib......
......59
10. The admissions or declarations of a vendor, or assignor, of personal pro-
perty, made before the sale or assignment, are evidence against his vendee
or assignee, claiming under him, immediately or remotely, either by act or
operation of law, or by the act of the parties. So they are in like manner
evidence against any one, coming after such admissions, or declarations
made, into his place, or representing him in respect to such rights and lia-
bilities. But the exclusion of such evidence, where it could not have work-
ed a prejudice, will not be available on error. Horton v. Smith.......73
11. The Bank of the State and its Branches, being public property, its books
are public writings, and when the books themselves would be evidence, if
produced, sworn copies are admissible in evidence. Crawford v. The
Branch Bank at Mobile......
12. A clerk of the Bank cannot testify to facts of which he has no knowledge,
from notes, or memoranda, taken from the books of the Bank. Ib......79
13. A witness, on the trial of a forcible entry and detainer, prodnced certain
articles of agreement, entered into between himself and the plaintiff, by
which the latter stipulated to keep him in the peaceable possession of the
premises in question, until the first day of the succeeding year, (1844 ;) at
which time witness undertook to deliver peaceable possession of the land
to the plaintiff. Witness further stated that he received an equivalent for
the undertaking on his part, and accordingly gave up the possession for the
plaintiff's benefit, even before the day agreed on. One of the subscribing
witnesses also proved the execution of the agreement. Held, that the
writing was admissible to show the plaintiff's possession, and how acquir-
ed; and that its execution might be proved, either by a party to it, or a sub-
scribing witness. Huffaker v. Boring...........
.88
14. 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...............88
15. The defendant in execution made a sale and conveyance of his entire es-
tate to the claimant, and the former made certain statements to his credi-
tor, to induce him to accept the claimant for his debtor: Held, that as these
statements were no part of the res gestae, viz: the sale and conveyance, the
creditor to whom they were made, could not be allowed to narrate them as
evidence. Borland v. Mayo. .....
......104
16. With a view of showing that a sale of aroperty 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. Ib. ..........105
17. The declarations made by a vendor, previous to the sale, are admissible
to contradict his testimony given on the trial of a cause in which the bona
fides of the sale is drawn in question.` Ib......................
....105
18. The declarations of a vendor are admissible against his vendee, where
the purpose of both was to consummate a fraud by the sale. Ib......105
19. Where the vendor of a plantation and slaves, in giving testimony, with a
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