GARNISHMENT AND GARNISHEE-CONTINUED.
nishee has admitted a debt due, or until a final judgment has been entered
for his default. Ib.
211
7. When a garnishee submits to answer, he is considered as continuing be-
fore the Court, for the purpose of receiving its judgment; but if the cause
is continued generally, by the Court, as to him, he cannot at the succeed-
ing term, be compelled to join in an issue tendered to his answer, either
by the plaintiff or defendant in the principal suit; and if an issue then ten-
dered for the first time, is made up and found against him, the judgment
thereon will be reversed upon error, if there is no admission upon the re-
cord, either express or implied, which takes from him the right of insisting
upon the irregularity. Lockhart v. Johnson.
223
8. A justice of the peace of one county is not authorized to issue an attach-
ment returnable into another; and it is competent for a garnishee to avail
himself of the irregularity of the attachment in an appellate court, though
no objection had been made to it previous to the judgment below. Dew
v. The Bank of the State of Alabama,
323
9. After a judgment by default against a garnishee, he must be served with
a scire facias, or there must be some equivalent proceeding to authorize a
final judgment. Ib.
323
10. Although the act of 1833, directs, that when an attachment shall be serv-
ed in the hands of a supposed debtor, &c. of the defendant, the garnishee
shall be summoned in writing, yet it is not necessary that a copy of the
written summons should be returned with the attachment; but a return by
an officer that he had summoned a third person as a garnishee, will war-
rant the inference that the duty was performed according to law. Lowry,
et al. v. Clements,
11. To authorize a judgment against a garnishee who is in default, it is ne-
cessary, not only that a conditional judgment should be entered against
him, but a scire facias issued thereupon, should be executed and returned,
or something equivalent should be shown. Ib.
12. To sustain a judgment against a garnishee, it should appear that the
plaintiff had recovered a judgment against the defendant in the principal
suit; but it is allowable for the garnishee to assign errors upon the latter
judgment. lb.
13. If a judgment can be had against a stockholder, for a debt due by the cor-
poration, under the act of 31st December, 1841, the affidavit required by
that act must be made previous to suing out garnishee process. Whether
the act applies to the stockholders of a corporation whose franchise has
been lost by non user, or dissolved by any act equivalent to a surrender of
its privileges, quere? Cooper v. Frederick,
739
1. There cannot be a valid 'gift at common law, where the donor retains con-
trol and dominion over the subject of the gift during his life. Blakey,
Adm'r v. Heirs of Blakey,
391
2. An insolvent debtor is not allowed to appropriate the proceeds of his la-
bor to investments in real estate for the advancement, or in the name of
his children; and if he procures a conveyance to be made to a child under
such circumstances, the estate may be reached by an execution creditor.
Patterson v. Campbell,
3. Upon the trial of one for murder, it is not competent to prove the declara-
tions of a third person, tending to the conclusion that he was guilty of the
murder, and not the prisoner, as evidence in exculpation of the prisoner.
If such third person examined as a witness, had implicated the prisoner
by his testimony, it might have been received for the purpose of discred-
iting him, but was not competent testimony to establish the innocence of
the prisoner, by fixing the crime upon the declarant. Smith, a slave v. The
State,
990
See Evidence, 29.
GUARDIAN AND WARD.
1. Where the account of a guardian is audited and reported for allowance,
and he moves to amend a settlement made with the court at a previous
term, which is refused-conceding the power of the court to have granted
the motion, to induce a reversal, the record should show that the guardian
was prejudiced by the decision against him. Hudson, Guardian, &c. v.
Parker,
413
2. A decree of the Orphans' Court, reciting that the guardian of a female
ward was indebted to her husband in his wife's right, and adjudging that
the guardian pay over that sum to the husband, is a decree in favor of the
latter, and is defective, because it is not in favor of both husband and
wife. Ib.
414
3. Where a guardian purchases property at a sale under an execution in fa-
vor of his ward, which he pays for by causing a credit to be entered on
the execution, it seems that the ward may elect to have the property or the
money with interest. But to induce a court of equity to make the guar-
dian a trustee for his ward, the former must have purchased under such
circumstances as invests the guardian with a valid estate at law; if mala
fides is attributable to him, his purchase is void by the statute of frauds,
against the creditors of the defendant in execution, and will not be upheld
in equity, merely to declare a trust in favor of the ward. Cawthorn v. Mc-
Craw,
519
4. The return by a guardian frem time to time of the account between him-
self and ward, and ordering the same to be recorded by the Orphans' Court
GUARDIAN AND WARD-CONTINUED.
is not such a res adjudicata as will prevent either party from showing an
error in such returns, and estop the court upon final settlement from ex-
amining the debits and credits on both sides, from the commencement of
the guardianship, and rendering such decree as will be proper upon a
view of all the facts. And the marriage of a female ward, after such occa-
sional returns, cannot prejudice the guardian, or deprive him of credits
that would have been available if the ward had continued sole. Cunning-
ham and wife v. Pool,
615
5. A mere gratuitous remark by a guardian, that he would not charge his
ward for board, is not obligatory upon him, and the statute of limitations
will not avail against such a charge, upon a final settlement between him-
self and ward. Ib.
615
6. In the settlement of a guardian's accounts, his credits should be allowed
as of the time when the ward's estate became chargeable with them; and
if interest is calculated against the guardian upon all the debits, it should
also be allowed upon his credits. Ib.
615
See Clerk and Register of Court.
See Execution, Writ of, 8.
See Orphans' Court, 19.
1. When a husband in possession of land under a title bond from his vendor
having paid the purchase money, absconds from the State, and his wife
having afterwards obtained the legal title from her husband's vendor, and
conveyed the land during coverture, the husband, notwithstanding, may
maintain ejectment against his wife's vendee, on his possession, because
the deed of the wife is entirely void. Adams v. Frampton,
124
2. A divorce a vinculo, obtained by the wife subsequently to the execution of
the deed by her to the defendant, has no effect on the suit. Ib. 124
3. When the wife's chose in action accrues during the coverture, the husband
may, or may not, join the wife in the suit, at his election. Woodley v.
Findlay, et al.
4. A deed by a husband, conveying his property in trust for the use and ben-
efit of his wife, and children, without any consideration, but the existing
marriage, is void, as to the existing creditors of the husband. Costillo &
Keho v. Thompson,
5. Semble, where the father gave personal property to a daughter by a deed,
who was a feme sole, but who afterwards married, and together with her
husband retained possession under the deed for more than twenty years,
it will be presumed, (in the absence of an intention to defraud,) against
the husband, or his creditors, that the property was not the daughter's, but
HUSBAND AND WIFE-CONTINUED.
was the father's at the time of the gift.
Tann, &c.
Fellows, Wadsworth & Co. v.
6. Where property is given by a father to his daughter, who was a feme sole
and competent to take it, a court of equity will not allow her subsequent
marriage to impair her rights, merely because a trustee was not interposed.
7. A father gave to his widowed daughter, "and the heirs of her body," by
deed, a female slave, who he provided should be under her control and em.
ployment, in the most profitable way, for the use and support of herself and
"her heirs," during their lives; after her death it was directed that the
property should be divided "among her heirs." In a short time after the
gift, the daughter took possession of the slave, who, together with her in-
have for more than twenty years been treated as the separate pro-
perty of the daughter and her children; though the daughter married very
soon after acquiring the possession: Held, that the deed invested the daugh
ter and her children collectively, with interests which the creditors of the
husband could not divest, as it respects the children, through the medium
of any forum, and as it respects the daughter, (his wife,) not by levy and
sale under execution against his estate; if the husband, in virtue of his
marital rights, has an interest in the slave, and her increase, or the profits
accruing from their employment, a creditor must proceed in equity to sub-
ject it to his judgment; further, that as the daughter has become covert,
a court of equity may appoint a trustee in whom the legal estate shall be
vested, so as to support the purposes of the deed. Ib.
See Executors and Administrators, 16.
See Pleading, 12.
See Wills and Testaments, 1.
INDIAN TRIBES, TREATIES WITH.
1. The first article of the treaty of 1814, with the Creek Indians, or the act
of Congress of 1817, which provides for the location of lands reserved un
der that article, and for other purposes, does not invest the chiefs, warri
ors, or other reservees, with an estate which he can alienate at pleasure
James v. Scott,
579
2. Quere? Does evidence, that a reservee, under the treaty of 1814, with
the Creek Indians, or under the act of Congress of 1817, has removed to
another county in the State than that in which his reservation is situated,
establish the fact of his voluntary abandonment; or may it not be intend-
ed, in the absence of proof, that he still retains the control over it, and that
others cultivate it for him. Ib.
579
3. The first article of the treaty of 1814, with the Creek Indians confers up-
INDIAN TRIBES, TREATIES WITH-CONTtinued.
on the chiefs and warriors provided for, a qualified inheritable estate, which
is determined by the sale of the reservee, the cesser of occupation, and his
removal from the State; and immediately upon such abandonment of pos-
session, the reservation becomes a part of the public domain, without any
positive assertion of right on the part of the United States. Crommelin v.
Minter,
594
See Public Lands, Survey of, &c. 1.
1. When the matter of a plea in abatement is the disqualification of a juror,
laying out of view the direction to summon freeholders and householders,
as to which no opinion is given-it must present the constitutional dis-
qualification of conviction for bribery, &c. &c. Matters which exempt
individuals from jury service, are not disqualifications which will abate an
indictment. The State v. Brooks,
9
2. A discharge from a former indictment, upon payment of costs, in conse-
quence of the refusal of the prosecutor to prosecute further, is no bar to a
subsequent indictment. The State v. Blackwell,
3. An indictment against a pedlar, which does not alledge that the person
charged with peddling, had not first obtained a license therefor, is bad, and
a judgment founded on such an indictment, will be reversed. May v. The
State,
167
4. An indictment for adultery is good, although the offence is not laid with
a continuendo. The State v. Glaze,
283
5. If one of the persons charged with this offence is known by the name
charged in the indictment, the other is not entitled to an acquittal by show-
ing that it is not the true name. lb.
See Criminal Cases, Proceeedings in, 2, 5.
1. Where a note payable to a named individual, or bearer, is indorsed by a
third person to the plaintiffs before its maturity, and its due payment guar-
antied, waiving the suit and diligence required by law; such indorsement
binds the indorser, if the note is not paid by the makers at its maturity,
without any further action by the holder. Burt v. Parish & Co.
2. The indorsement of a bill single, is in itself a distinct and substantive
contract, and if it does not look to any other place, will be governed by the
lex loci contractus; and where it is made in another State, in which the
common law is presumptively in force, to fix a liability upon the indorser,
it is incumbent upon the indorsee to show by a suit prosecuted against the
obligor, that the amount of the specialty could not be collected of him, or
else excuse the prosecution of such a suit by proof of the obligor's insol-
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