ATTACHMENT AND GARNISAMENT-CONTINUED.

5. Judgment corrected and affirmed.-Where the affidavit for the gar-
nishment is made by the real owner of the judgment of which satisfac-
tion is sought, and judgment is rendered in his name against the
garnishee, while the affidavit and garnishment correctly describe the
original judgment, the judgment will be corrected in the appellate
court, at the costs of the appellant, and rendered in the name of the
plaintiff in the original judgment..

ATTORNEYS-AT-LAW.

1. Judicial admissions of attorney, conclusiveness of-Conceding that
attorneys-at-law have power to bind their clients by written admissions
as to the facts of a case; yet, where such admissions are made improvi-
dently, or through mistake, the court may relieve against them, by
means of its coercive powers over its own officers, and may set them
aside upon such terms as will meet the justice of the particular case.
Harvey and Wife v. Thorpe....

2. Ratification of attorney's unauthorized employment.—Conceding that an attor-
ney-at-law has no authority to employ another attorney to act for his
client, yet, if he soon afterwards informs his client of such unauthor-
ized employment, and the latter does not dissent from it, these facts
are proper to be submitted to the jury, in an action brought by the sec-
ond attorney to recover his fees, to enable them to determine whether
the client did not assent to the employment.-King v. Pope......
3. Attorney's authority after judgment.-An attorney's authority does not
cease with the rendition of the judgment, but continues for the pur-
pose of controlling the process for its collection; and hence the lien
of an execution may be lost, by the attorney's order to the sheriff, with-
out instructions from his client, to postpone the sale of property levied
on, and to allow the property to remain in the possession of the defend-
ant in execution.-Albertson, Douglass & Co. v. Goldsby....

BAIL.

1. Bail in capital cases.-Under the provisions of the constitution
(Art. I, § 17) and laws (Code, § 3669-70), a person indicted for murder
is entitled to bail, as a matter of right, unless the court to which the
application is made is of opinion, on the evidence adduced, that he is
guilty of murder in the first degree; and if the application for bail
is made to a circuit judge, and is by him refused, the evidence in the
case may be set out on exceptions (Code, § 3673), and application
made thereon to the supreme court.-Ex parte Banks......
2. Murder in the first degree not here shown.-Upon the evidence set out in
the bill of exceptions (for which in full see statement of the case), the
defendant was held entitled to bail as a matter of right, because the
court could not, upon that evidence, say that he was guilty of murder
in the first degree, as defined by section 3080 of the Code....
3. Amount of bail.-That the defendant is a man of fortune is a fact
which may well be considered in fixing the amount of his bail.......

BANKRUPTCY.

1. Bankrupt act, second section, construed.-Under the second section
of the bankrupt law, (U. S. Statutes at large, vol. 5, p. 440,) approved
August 19th, 1841, the execution by a voluntary bankrupt, after the
1st January, 1841, of a deed of trust giving a preference to some of
his creditors, does not invalidate his discharge in bankruptcy, unless
the act was "done in contemplation of the passage of a bankrupt
law."-Pearsall v. McCartney..........

2. Evidence of bankrupt's general good character inadmissible.—When
a bankrupt's certificate of discharge is impeached for fraud, evidence
of his general good character is not admissible for him..

BASTARDY.

1. Form of security for costs.-From a judgment of the circuit court, in
a proceeding under the bastardy act, an appeal may be taken (Code,
§ 3821) by merely giving security for the costs; and the security may
be either a bond, or a simple acknowledgment in writing. Satterwhite
v. The State....

110

110

... 65

2. Sufficiency of evidence to authorize conviction. It is not error to
refuse to instruct the jury, at the defendant's request, "that they
ought to acquit unless the proof showed beyond a reasonable doubt,
that he was guilty "; but it is erroneous to instruct them, "that, if the
State produced a preponderance of evidence, they might upon such
preponderance of proof find the defendant guilty.".

3. Examination of parties as witnesses.-Where the mother and the
putative father of the child, both being made witnesses by the statute
(Code, § 3807), are examined on the trial, their testimony must be
weighed by the jury like that of other witnesses..

BEQUESTS.

See WILLS, 12.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

1. Order payable out of particular fund, when collected, not bill of exchange.—A
written order, requesting the person to whom it is addressed to pay a
specified sum out of the proceeds of a certain judgment, when collected,
is not a bill of exchange.-Gliddon v. Mckinstry..

65

65

408

2. Consideration of acceptance of such order may be proved, and how.
The acceptor of such an order, when sued for negligence in collecting
and failure the pay when collected, may prove the consideration on
which his acceptance was based; and for this purpose may show that
the money collected on the judgment was paid to other persons who
had prior claims on the fund, and that the balance was not collected.. 408
3. Bill of exchange drawn by executor no claim against estate.—A bill
drawn by G. S., with the addition of the words "executor of S. S.", is
the personal contract of the drawer, and does not bind the estate; and
an accommodation acceptor, who pays the bill, has no claim against the
estate. Kirkman, Abernathy & Hanna v. Benham...

501

BILLS OF EXCHANGE AND PROMISSORY NOTES-CONTINUED.

4. Equitable set-off against assignee of bond.-If a note under seal is
assigned by endorsement after maturity, the assignee takes it subject
to all equitable defenses existing in favor of the maker prior to notice
of the assignment, whether they grow out of the same, or out of a differ-
ent transaction. (WALKER, J., dissenting, held that, where the as-
signee acquired the legal title by endorsement, without notice of the
maker's equity, he ought to be protected.)-Carroll v. Malone......
5. Assignment of note chargeable on wife's separate estate.—A prom-
issory note, which was executed under such circumstances as to consti-
tute it a charge upon the separate estate of a married woman, may be
enforced in equity by a transferree or endorsee against her estate.-
Baker v. Gregory and Wife

6. Bill of exchange, accommodation endorsement of.-If a bill of exchange,
which is endorsed for the accommodation of the acceptor, for the
special purpose of enabling him to obtain an extension of a debt in
bank, is transferred by him as collateral security for the payment of
another pre-existing debt, the creditor takes it with implied notice of
the fact and purpose of the accommodation endorsement, and subject
to any defense which would be available against the acceptor himself.
McKenzie v. Br. Bk. Montgomery.

7. Legal defense to note no ground of equitable jurisdiction.--Where a note, given
for the purchase money of town lots, at a place which was the con-
templated terminus of a railroad then in process of construction, was
made payable "when the first locomotive engine on the M. railroad
should arrive" at the town, the fact that the railroad company was sold
out, and the road completed by another company subsequently incor-
porated, is available (if at all) as a defense at law, and therefore consti-
tutes no ground for a resort to equity.-Askew v. Hooper......

521

544

606

634
8. Estoppel in pais against setting up defense to note.-If the maker of
a promissory note induces a third person to trade for it, by assuring
him that he has no set-off against it, and that he will pay it promptly,
he cannot afterwards assert any ground of relief against the purchaser.
Drake v. Foster.....

BOUNDARIES.

1. Boundaries of land how determined. Streets which are well defined and
designated by some natural or artificial monument, must govern course
and distance in fixing the boundaries of lands; but streets which, in
the infancy of a city or town, are only undefined portions of land dedi-
cated to public use, themselves requiring to be located, would furnish
very uncertain guides in arriving at the boundaries of other lands.-
Doe d. Saltonstall and Wife v. Riley and Dawson....

CASE, ACTION ON THE.

1. Admissibility of defendant's declarations.-In an action on the case, to re-
cover damages for injuries done to plaintiff's hogs, by defendant's
children and servants, while driving them out of his field, the defend-
ant's declaration, "that plaintiff's hogs were in the habit of running
in his field, and that they should not do it any more", is admissible

649

164

CASE, ACTION ON THE-CONTINUED.

evidence for plaintiff, because it tends, though remotely, to show that
the hogs which were injured belonged to plaintiff.-Smith v. Causey.. 655
2. Evidence confined to matters in issue.-If the declaration alleges that
the injuries complained of were done by defendant's children and
servants, plaintiff cannot be allowed to prove injuries done by the de-
fendant himself in person; and defendant's threats that he would kill
the hogs are therefore inadmissible, because they tend to show that he
did kill them......

3. What authorizes recovery by plaintiff.-To authorize a recovery by plaintiff,
in such an action, it is not necessary to prove that the particular act
complained of, if done by defendant's children and servants in the per-
formance of their duty and service, was commanded by the defendant;
nor that the defendant's dogs were vicious, and that he knew it; nor
that the injury was done entirely by the defendant's dogs..............
4. Unnecessary averment, if descriptive, must be proved.-If the declaration
alleges that the injury was done with the defendant's dogs, the aver-
ment, though unnecessary, cannot be disregarded, since it is descrip-
tive of the cause of action.....

655

655

655

CHANCERY.

1. Resulting trust founded on presumed intention, and not raised be-
tween parent and child.-The resulting trust which, in equity, arises
in favor of the person who advances the purchase money of land, is
founded upon presumptive intention, and is designed to carry that
intention into effect. It will not be created in opposition to the de-
claration of the person who advances the money, nor in opposition to
the obvious purpose and design of the transaction. The mere fact that
the purchase money was advanced by a parent, while the conveyance
was taken in the name of a child, who is not shown to be provided for,
is not sufficient to raise the presumption of such a trust.-Hatton v.
Landman......

2. Evidence in this case held insufficient.-Bill filed by two sisters, against
widow and devisee of deceased brother, to establish resulting trust in
lands purchased by decedent in his own name, but paid for with money
advanced by his mother. The complainants were all of lawful age
when the purchase was made; the bill was not filed until after the
expiration of more than sixteen years from the purchase, more than
nine years after the death of the old lady, and more than three years
after the death of the son; and the only excuse alleged for the delay
was disproved. The complainants' evidence consisted principally of
the old lady's declarations, made in her son's presence, that her money
had paid for the land; the son's admissions of that fact; and his prom-
ise to his mother that he would "do what was right between his sisters,
after she was gone, in relation to the land." The other evidence in
the cause showed that the son lived with his mother, and managed her
business, for six or seven years before the purchase was made, and from
that time until her death; that his services to her, for which he was
not shown to have received any compensation, were worth more than

127

CHANCERY-CONTINUED.

the price of the land; that he was an economical and industrious man;
and that his mother knew, several years before her death, that he
claimed the land as his own. The court refused to establish the trust;
holding that the declarations of the parties were reconcilable with the
non-existence of the trust, or with its waiver and discharge before the
old lady's death, and that the evidence, under all the circumstances of
the case, was not sufficient.....
127

3. Jurisdiction in cases of fraud and mistake, where remedy at law is
adequate and complete.-Equity will not entertain jurisdiction of a
bill, the sole object of which is to recover money alleged to have been
paid through ignorance or mistake of fact on the part of the complain-
ant, and through fraudulent pretenses on the part of the defendant,
where the remedy at law is adequate and complete.-Russell v. Little. 160
4. Settlement of trustee set aside on objection by beneficiaries.—If a
trustee sells the trust property under a power of attorney from the wife,
applies the proceeds of sale, with her consent, to the payment of the
debts on which he was bound as surety, obtains her receipt showing
that the proceeds had been applied for her support, and uses it as a
voucher on the settlement of his trusteeship,-equity will not recognize
such an execution of the trust, but will set aside the settlement on the
application of the beneficiaries; and the trustee will be held estopped
from insisting that the proceeds were applied as the court, on a proper
application, would have directed.-Henderson v. Segars....
5. Jurisdiction to decree division of slaves belonging to decedents'
estutes. A widow, or other distributee of an estate, who retains pos-
session of slaves on the ground of an attachment to them as family
negroes, cannot come into equity to enjoin an action at law by the per-
sonal representative for their recovery, and to have them allotted to
her as a part of her distributive share; the statute law having provided
another forum to make a division in such case.--Machem v. Machem.. 374
6. Reformation of will.-A will cannot be reformed in equity, so as to make
it create a separate estate in a married woman, on proof of an agree-
ment, prior to her marriage, between the testator, who was her father,
and her intended husband, that the will of the former should exclude
the husband's marital rights..

352

374

7. Jurisdiction where remedy at law is adequate and complete.-A widow cannot
come into equity, to enjoin an action at law by the personal representa-
tive of her husband, for the recovery of slaves which were bequeathed
to her, and which her husband never reduced to possession, as husband,
in his lifetime: her remedy at law is adequate and complete......... 374
8. Rescission of contract by vendee.—The purchaser of land, so long as the
contract remains executory, has a right to demand a good title; but,
after accepting a conveyance, the maxim caveat emptor applies with the
utmost rigor, and he cannot, in the absence of fraud or mistake, rescind
the contract in equity, and enjoin a judgment for the purchase money,
as on an executory contract.-Thompson's Adm'r v. Christian........ 399
9. Facts showing acceptance of conveyance.-Where the vendee filed his bill to
rescind the contract, and to enjoin a judgment for the purchase money,
as on an executory contract, it was held that the pleadings and proof