SHERIFF AND HIS SURETIES-CONTinued.
5. No suit can be maintained against a sheriff on his official bond, for mo-
ney received by him on an execution after the return day is past, though
he would be individually liable for the money so received. Dean and
Johnson v. The Governor, &c.
526
6. An assignment of a breach, which shows, that the money was received by
the sheriff, at a time subsequent to the return term of the writ, as ascer-
tained by law, is bad on demurrer. Ib.
526
7. An admission by the sheriff, after the expiration of his term of office, that
he had collected the money upon an execution, is not evidence of the fact
against his sureties. Evans, et al. v. The State Bank,
787
8. It is not necessary that the plaintiff should proceed at the next term after
demand made of the sheriff, to entitle him to recover of the sureties, five
per cent. per month from the time of the demand. Ib.
See Assumpsit, 1.
1. Evidence of the truth of the charge, in an action of slander, is not admis-
sible under the general issue. Douge v. Pearce,
128
2. It is not indispensable that a witness for the plaintiff should give the exact
language used by the defendant, showing the slanderous words had refer-
ence to a trial. If this was considered desirable, he should, upon the
cross examination, elicit the precise language used. Ib.
128
3. In an action for slandering the title of another's property, the slanderous
words must be set out in the declaration. Where the injury was alledged
to consist, in asserting title to a slave, sold under execution as the pro-
perty of the plaintiff, it was necessary to alledge what the defendant said,
what title he set up, and that the words were spoken in the hearing of the
bidders. Hill v. Ward,
310
4. The defendant in such an action, to rebut the presumption of malice, may
prove, that upon a fair representation of his claim, he was advised by a
lawyer to forbid the sale of the slave, to render his claim under a mort-
gage of the slave effectual. Ib.
5. Although the title which the defendant asserted was invalid, if asserted in
good faith, without malice, no recovery can be had against him. Ib. 311
SLAVES.
1. A testator by his will declared, that certain of his slaves should be per-
mitted to go to Africa, their passage to be paid, &c., but if they desired
to remain subject to his daughter as they had been to him, they should be
permitted to do so, but in no event to be sold, or deprived of this privilege
either before or after the death of my said daughter. Should they, or any,
or all, prefer not to emigrate, then, and in that event, they shall in all re-
spects be subject to my daughter, as they are to me-Held, that the slaves
had uot the legal capacity to choose between freedom and servitude, and
that the bequest of freedom being void, the title to the slaves was vested
in the daughter. Carroll and Wife v. Brumby, Adm'r,
1. On the 13th March, 1845, the Intendant and Council of Greensboro' pass-
ed an ordinance, authorizing any person who had obtained a license from
the county court to retail spiritous liquors in the town of Greensboro', upon
paying $100 and taking out a town license; the penalty for infringing this
ordinance was $20. On the 8th May, 1845, an ordinance was passed, re-
quiring all licensed retailers in the corporation to pay a tax of $10. The
defendants were licensed by the county court, in July, 1844, and August
1845, and in September, 1845, retailed spiritous liquors in the town, with-
out taking out a license under the ordinance of March. In an action to
recover the penalty-Held, that the meaning of the two ordinances, taken
together, was, that the ordinance of May imposed a tax as an additional
charge, without reference to the time when the party was licensed by the
county court. Intendant and Council of Greensboro' v. Mullins and Bar-
field,
341
1. If the defendant in a summary proceeding, appears and makes no objection
to the court then proceeding to entertain the motion, he cannot object on er-
ror, that the notice was for a judgment at the preceding term of the court, and
that no action, by continuance or otherwise, was then had upon it. Evans,
et al. v. The State Bank,
787
2. It is not necessary that the plaintiff should proceed at the next term after
demand made of the sheriff, to entitle him to recover of the sureties, five
per cent. per month from the time of the demand. Ib.
See Bills of Exchange and Promissory Notes, 10.
1. The act imposing a penalty, for cutting down, carrying away, or destroy-
ing cypress, and other timber trees, without the consent of the owner,
does not extend to a case, where by mistake the party goes beyond his
own boundary, and is under the impression that he is cutting on his own
lands, though he would be liable at common law. Whether negligence
so gross, as to indicate an entire recklessness, or indifference to the rights
of another, would be a substitute for actual knowledge, or authorize its
implication, quere. Russell v. Irby,
131
2. Where the master would not be liable if he had cut the trees himself, he
will not be liable for the acts of his servants obeying his instructions.—
Ib.
1. Possession is sufficient evidence of title, in trover, or detinue, against a
wrong doer. Phillips v. McGrew,
255
2. Possession of a note, is prima facie evidence of ownership, in an action
of trover by him, against one who shows no title to it. Donnell v. Thomp-
440
3. The collection of a note, by one not entitled to it, is evidence of a conver-
sion, and renders a demand unnecessary. lb.
440
1. Parol evidence is admissible to show, that a deed, or bill of sale, abso-
lute on its face, was intended as a mortgage, or that it was executed and
delivered upon certain trusts, not reduced to writing, and upon the proof
being made, a court of equity will decree their execution. R. Bishop's
Heirs v. The Adm'r and Heirs of S. Bishop,
475
2. A court will not declare a deed absolute on its face, to be conditional, or
upon a trust, but upon strong and stringent proof, and will pay but little
attention to the casual remarks of men about their property; but when
the trust is clearly made out, will execute it. Ib.
3. The complainants having alledged two trusts, first, that the trustee was
to hold certain slaves for the use of the complainants, for a fixed period,
and then to convey them; the last mentioned trust being proved, should be
enforced, though the complainants failed to prove a trust in their favor be-
fore that time. Ib.
475
4. A testator by his will directed as follows: "It is my will, that the inter-
est which I have in a house and lot, in the town of Huntsville, with all
my lots lying in the towns of Triana, and Florence, be sold, and the pro-
ceeds applied to the payment of legacies hereafter bequeathed, and the
discharge of my debts. I hereby direct, and require my executors, here-
inafter named, to keep my estate in the county of Marengo together, until
all my debts and legacies are paid off and discharged, and out of the pro-
ceeds of my said estate in Marengo, to pay annually to my beloved wife,
Sophia, one thousand dollars for her support," &c. By another clause in
his will, the testator declared that his estate in Marengo should not be di-
vided, until his debts, and the legacies were paid. Held, that the will did
not create a trust by implication in favor of creditors, which would take a
debt due by the deceased out of the statute of limitations, or prevent it
from running, or prevent the bar of the statute of non-claim. Carrington
& Co. v. Manning's Heirs,
See Trustee and Cestui Que Trust, 2, 3, 4.
TRUSTEE AND CESTUI QUE TRUST.
1. After the law day has passed, if the demand secured by the deed has not
been satisfied, the trustee may recover by suit the property conveyed by
the deed, which has not been disposed of according to the requisitions of
TRUSTEE AND CESTUI QUE TRUST-CONTINUED.
the trust, without being required, in a proceeding at law, to account for the
property sold, or for that which remains. If the deed is satisfied, it de-
volves on the other party to show it. Brock v. Headen,
2. Though a trustee cannot make a profit by the purchase of the trust proper-
ty, the objection can only be raised by the persons interested. McKinley
v. Irvine, et al.
682
3. Expenses incurred by trustees in the erection of a tavern, and public
county buildings, though made in good faith, and though they tended
greatly to enhance the value of the town lots, cannot be allowed as a cre-
dit to the trustees in their account, unless such expenditures were autho-
rized by the authority under which they acted, or the shareholders ex-
pressly, or impliedly, consented to the outlay. Ib.
682
4. All the trustees of a private land company, who have participated in the
execution of the trust, or their personal representatives if they be dead,
should be parties to a bill filed by a stockholder, for the settlement of the
trust estate. lb.
682
5. An allowance to a trustee, of twelve and a half per cent., by the terms of
the deed, will not render it void, in the absence of proof that it was un-
conscientious. Donelson's Adm'rs v. Posey, et al.
752
See Principal and Agent, 7, 8.
USE AND OCCUPATION.
1. When a contract for the sale of land is rescinded by the decree of a court
of chancery, the surety of the vendee is not responsible for the value of
the use and occupation of the land by the vendee, the surety never having
been in possession, or derived any benefit from it. Elliott, et al. v. Boaz,
et al.
535
1. The testatrix, by a writing under seal, acknowledged that she had re-
ceived from the executor, the sum of two hundred dollars, and promised to
pay it, if convenient, during her life, but if she should fail to pay it, she
directs her executors, on the death of herself, and her brother John, to pay
the same, with the addition of twenty per cent. per annum. By her will,
she recites this promise, and directs it "to be paid according to its terms."
Held, that the executor could retain this money, with interest at the rate
of twenty per cent. per annum, to the time when, from the condition of the
estate, the executor was enabled to realize the money, as against a lega-
tee; whether he could as against creditors, receive interest at the rate of
twenty per cent. per annum, quere? Watson, et al. Legatees, v. McClanahau,
Ex'r,
57
2. One of two partners, who has made a usurious contract without the know-
ledge of his co-partner, is a competent witness for his co-partner, when
sued upon a contract he had individually made with the creditor, in which
the usurious contract is merged, the partner who is sued having released
the other. Jackson v. Jones,
3. When notes are executed reserving usurious interest, if afterwards new
notes are executed, and any interest is computed on the old notes, and
carried into the new, it would render the new notes usurious, and under
the statute, void as to the interest. lb.
121
4. The borrower is a competent witness under the statute, to testify to the
fact of usury; but he cannot give evidence of a distinct and independent
fact, and then prove the usury by other witnesses. lb.
121
2. P lent D a sum of money, taking his note for the payment; at the same
time a parol agreement was entered into by the parties, that the borrower
should pay the State tax on the loan, which was one fourth of one per
cent. Held, that P was entitled to recover eight per cent. on the loan,
and that the contract was not on its face usurious. Dubose v. Parker, 779
VARIANCE.
1. A variance between an execution and the judgment to enforce which it
was issued, does not render the execution a nullity, as it may be amend-
ed so as to conform to the judgment. McCollum v. Hubbert and Caple, 282
VENDOR AND VENDEE.
1. A vendee, holding only a bond for title, cannot resist a recovery at law,
when the vendor sues to recover the possession. His remedy is in equity
to file a bill to redeem. A purchaser from the vendee without notice, is
in no better condition, as it was his duty to inquire into the nature of the
title he was purchasing. Notice to quit previous to the institution of the
suit, is not necessary. Chapman v. Glassell,
2. It is no obstacle to the maintenance of an action at law, by the vendor, to
recover the possession, that he is prosecuting a suit in chancery to fore-
close his equitable mortgage. Ib.
3. A sale of land by one in possession, is not void at common law, because
an action is then pending for the land against the vendor, Camp v. For-
rest, et al.
114
4. A bond conditioned to make title to land, on the payment of the purchase
money, is an equity merely in the vendee, which cannot be sold by exe-
cution at law against him. Driver v. Clark & Givens,
192
5. In such a case, a bill may be filed by the vendor, against the vendee, to
enforce the equitable lien, for the payment of the purchase money, without
making the purchaser of the interest of the vendee at sheriff's sale a par-
ty, though he is in possession of the land, unless it be shown that he is
connected with the equitable title sought to be foreclosed. Ib. 192
6. When a fraud has been committed upon a vendee in the sale of land, by
the false representation of the vendor, that he had title, when he had none,
the vendee may resort to chancery for a rescission of the contract, and a
return of the purchase money paid, against the representatives of the ven-
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