FERRIES-CONTINUED.

1

under licenses, a short distance above the place where B. had kept it, and
where he owned both banks of the river, but for the same uses and at the cross-
ing of the same road: From the time N. took charge of the ferry, B. procured
no license, nor exercised any ferry privilege: Held, that B. had relinquished his
right, and that N. was entitled to an exclusive right to keep the ferry. Brearly
vs. Norris, 514.

2. Where a ferry had been kept by the husband in his life time, the landing of
which is on the farm attached to the mansion, and the widow's dower has not
been assigned, she is entitled to the ferry as appertaining to her possessory
right. Ib.

FRAUD.

See Chancery, 29.

FRAUDULENT REPRESENTATIONS.

See, Damages,

FRAUDULENT SETTLEMENTS.

See Administration, 3; Chancery, 13,

FRAUDULENT CONVEYANCES.

1. Though a sale of property be fraudulent on the part of the vendor, being made
to defraud his creditors, the purchaser cannot be affected by the fraud, unless he
participated in it, with a knowledge of the fraudulent design, and with intent
to further the accomplishment of such design. Christian vs. Greenwood, 250.
2. One creditor has the same right to purchase, with his debt, the property of his
debtor, that another creditor has to sell it under execution; and this, though he
knows that the debtor's object in selling to him, is to deprive the other creditor
of the means of making his debt-the effect is but preferring one creditor to
another. Ib.

3. But, in such case, the creditor must allow a fair price for the property and not buy
more than is necessary for his own protection—at least it would be a suspicious
fact, if, unless there be shown good reasons for the property not to be sold
separately, he includes several parcels of property when one would pay the debt,
and pay the overplus in money. Ib.

4. A purchaser from a fraudulent vendor will be held to be a participator in the fraud,
if he have notice of it, and still deal with him, and thereby afford him the
means to make his fraudulent efforts against his creditors successful; and this,
though he may have paid a full price for the property. Ib.

5. And so, where a purchaser of negroes knew that his vendor had run them off-

FRAUDULENT CONVEYANCES-CONTINUED.

had been told that the vendor had acknowledged that he had run them off to
avoid the debts sought to be enforced against them-bought them after he knew
they had been run off, and while they were absent, paying mostly in cash, he
does not present such a case as entitles him to the protection of a court of equity,
but will be held responsible for the fraud of his vendor to the extent of his
dealing with him, on the presumption of a fradulent intent on his part, as well
as on the part of the vendor. Ib.

6. The voluntary conveyance of a party to his wife or child, though he be in-
debted at the time, is prima facie only, and not conclusively fraudulent in re-
spect to the claim of an existing creditor; and the presumption thus raised may
be met and repelled by proof on the other side. The question of fraud must
depend on all the circumstances of the case, looking to the state and condition
of the grantor, the extent of the property conveyed, and the direct tendency
of the conveyance respecting the claims of creditors. Bertrand vs. Elder. 494.
7. And so, where at the time of a gift to the wife, the husband was largely in-
debted, was embarrassed, and though not insolvent his circumstances were
doubtful, and his solvency dependent, in a great degree, upon the skilful man-
agement of embarrassed mercantile operations, the gift is fraudulent and void
as against the prior creditors of the husband. Ib.

GAMING.

1. The statute (secs. 9, 10, p. 371, Gould's Dig.) prohibiting the betting of money
at "any game of hazard or skill," was not intended to embrace horse racing.
State vs. Rorie et al., 726.

GIFTS.

1. Where a father-in-law, upon or after the marriage of a daughter, sends slaves
home with her, which are permitted to remain, free from his own control or
claim, a gift of the slaves sent is presumed to have been intended by the father
to his daughter, unless the contrary is established by proof. Henry vs. Harbi-
son, 25.

GUARDIANS.

1. Guardians should be held to account strictly and faithfully for the trust funds
that come into their hands; and no compensation should be allowed them where
they have neglected their duties, mismanaged the property of their wards, per-
petrated positive wrong and injustice towards them. Reed vs. Ryburn, 47.
2. Unless there be fraud in the final settlement of a guardian's account-made upor

GUARDIANS-CONTINUED.

the report of an auditor, and in which all parties seemed to acquiesce-there is no
reason to disturb the adjudication of the probate court. Ib.

3. Where a guardian presents his account for settlement, and after being examined
the Probate Court refuses to confirm it, this is not such final action and judgment
as to prevent the court, at a subsequent term, from again examining the account
and then affirming it. Rightor vs. Gray, 228.

4. It is the duty of the Probate Court, on the presentation of a guardian's account
for settlement, after the public notice required by law, to examine it, and cause
any errors in it to be corrected, whether exceptions be filed to it or not. Ib.
5. An order of the Probate Court requiring a second guardian to pay to the first an
amount found to be due him on the settlement and confirmation of his account
against the ward, without notice to, or the voluntary appearance of, the second
guardian, is an irregularity, for which such order will be quashed. Ib.

HOMESTEAD.

1. A homestead is not subject to attachment any more than it is to an execution.
Grubbbs vs. Ellyson, 287.

HUSBAND AND WIFE.

1. Gift of a slave, by a mother, to a trustee, for the use and benefit of her daughter.
a married woman, and the heirs of her body-to be held by the trustee for her
use and benefit-to remain hers during her life, and at her death to go to the heirs
of her body-to remain in her possession, but not to be subject to the debts or
disposition of her husband. The husband died, the wife married again; and the
judgment creditors of the second husband levied upon the slave: Held, on bill
by the wife to enjoin the sale of the slave, claiming it to be her separate pro-
perty, that from the terms of the deed of gift, being but for a life interest, and
appointing a trustee, even without the words that free the property from the
disposition of the husband and from his debts, the life interest of the wife was
sole and separate property: That the property was subject to absolute dispo
sition by her, to the extent of her interest, while she was a widow: That when
she entered into the second marriage, the slave continued her separate proper.
ty not subject to the control of her second husband, nor liable for his debts.
Phillips vs. Grayson, 769.

INNOCENT PURCHASER.

See Chancery, 28.

INSANE PERSONS.

See Contracts, 15, 16.

INSTRUCTIONS.

1. Instructions based upon evidence, which has been excluded by the court, are
out of place, and have nothing to rest on. Atkinson vs. Gatcher, 101.

2. The jury are the proper judges of the effect of testimony, and of the weight to be
given to it in sustaining any proposition; and an instruction which undertakes
to say what weight shall be given to evidence, is erroneous. Ingram vs. Mar-
shall, 115.

3. Although an instruction may be erroneous, yet if, upon the whole record, the
appellant was not injured by the ruling of the court, the judgment will not be
reversed. Ib.

4. Where several instructions are, in effect, the same, and the court has given
one, it is no error to refuse to give the others. Johnson vs. Brock, 282.

5. It is error to give instructions that are not applicable to the case, and which
may mislead and confuse the jury. Morton vs. Scull, 289.

6. It is not error to refuse an instruction where there is no testimony upon which to
found it; nor where it embraces several propositions, part legal and a part il-
legal-in such case the instruction as a whole should be refused. Thompson
vs. Bertrand, 731.

See, also, Principal and Agent, 5; Practice in Supreme Court, 19.

INTEREST.

See Sheriff's, 2.

JUDICIAL NOTICE.

See Public Acts, 1.

JURISDICTION.

See Wills and Testaments, 13; County Court, 2.

JURORS.

1. Where the plaintiffs in a suit for freedom, are hired out by the sheriff, pending the

JURORS-CONTINUED.

suit, a surety in the bond of the hirer, taken under section 8, ch. 75, Gould's Di-
gest, is not incompetent to serve as a juror on the trial. Daniel vs. Guy et
al., 50.

2. As a general rule, it is too late, after verdict, to except to the qualification of
a juror. Ib.

JUSTICES OF THE PEACE.

1. A justice of the peace has jurisdiction of an account for rent not exceeding one
hundred dollars. Dicus vs. Bright, 110.

2. If by any manner of proof, the plaintiff might have shown, on the trial before
the justice, that he was entitled to recover on the account, the judgment in his
favor should not be quashed on certiorari for want of jurisdiction. Ib.

JUSTIFICATION.

See Executions, 9, 14.

LEVEE TAXES.

See Chancery, 5, 6, 7.

LIEN.

See Executions 12, Practice in Supreme Court, 21.

LIEN OF LEVY.

1. Without attempting to deduce, from the authorities, any general and fixed rule,
to be applied in all cases, as to what delay of the execution creditor to sue out
process to enforce a levy upon land by a sale, will displace the lien, and let in inter-
ing incumbrances, it is sufficient to decide, upon the facts of this case-the judg
ment lien being lost by lapse of time-that, by a delay of nearly four years be
tween the return of the execution, under which the lands were levied on, and
suing out the execution, under which the lands were sold, during all which time
no step was taken to enforce the levy, and no excuse given for the delay, the
lien of the levy is displaced, as against the intervening rights of a more diligent
creditor. Patterson vs. Fowler's Ex., 459.

LIMITATION,

1. A count upon a written instrument-being a receipt for money to be paid over
for particular purposes-for the recovery of damages arising from a failure to
pay over the money, is subject to the limitation of five years, not three years.
Gulledge vs. Howard, 61.