DEEDS OF TRUST-CONTINUED.

ed for non-payment, on the 14th April, 1837. On the 12th May, 1837, D. C. & Co. made a deed of assignment, of all their effects, to P., as trustee, for the payment of debts, in which this bill was not included. On the 30th May, 1837, D. C. fraudulently put the bill for $4,000 in suit, against C. C., who had indorsed it for the accommodation of the drawers, and by his neglecting to make defence, a judgment was obtained, in the name of D. C. & Co. against him, which he ineffectually attempted afterwards to enjoin in Chancery. Subsequently, B. &. W. creditors of D. C. & Co., obtained an assignment of the judgment from D. C. & Co. P., the trustee exhibited his bill, to get the benefit of the judgment, alledging, that it passed to him under the assignment. Held, that as D. C. & Co. had no title to the bill, upon which the judgment was founded, at the date of the deed, none passed to the trustee by the assignment; and, that he could not deduce a title under the general clause of the assignment, by a frandulent act of the assignor. That although the grantor was estopped from setting up a title in himself, by alledging his own fraud, yet, that a Court of Chancery would not interfere, and divest the title of another, who did not deduce his claim through the fraudulent act of the grantor. Casey, et als. v. Pratt. ......238

8. A mortgagee, or cestui que trust, may proceed to foreclose a mortgage, or deed of trust, in a Court of Equity, although the deed confers a power of sale. Marriott & Hardesty, et al. v. Givens.

....694

9. There is no necessity for the mortgagee, or cestui que trust, to go into equity to protect themselves against a creditor of their debtor, who levies on the property covered by the mortgage, or trust deed, upon the expiration of the law day, as a claim then interposed under the deed will be sustained. Ib...........

.....694

10. A stipulation in a trust deed, to secure the payment of certain debts, providing that the debtor shall remain in possession of the property until a named day, and afterwards until the trustee should be required, in writing, by his cestui que trust, to proceed and sell, does not extend the law day of the deed beyond the time fixed for the payment of the debt; and if a levy is made after that time, by a creditor, the trustee may protect the property by interposing a claim under the statute. Ib...........694 11. When personal property, conveyed by a trust deed, is levied on by creditors of the grantor, and claimed by the trustee under the statute, his cestui que trust is not entitled in equity to restrain the creditors from proceeding in the claim suits, npon the ground that he desires a foreclosure. Ib. 694 See Chancery, 2, 18, 21.

See Debtor and Creditor, 4.

See Evidence, 4.

See Trust and Trustee, 1.

DEMAND.

.134

1. When a hired slave has left the service of the person to whom it is hired, and has gone to the house of the one hiring it, a second demand is unnecessary, when one is made, and the person hiring consents to take the slave, if returned the next day. Wier v. Buford.......... 2. When a certain time is fixed for the delivery of ponderous articles, no demand is necessary to put the defendant in default, though he may defend himself against the action, by proving his readiness on the day. Sorrell v. Craig, adm'r......... ....567

See Deeds and Bonds, 8.

DEPOSITIONS.

1. Interrogatories propounded to the plaintiff under the statute, are not in the nature of a fishing bill, where, in connection with the affidavit made previous to their being filed, they state the existence of a pertinent fact, which the defendant believes to be within the plaintiff's knowledge, and calls on him to answer in respect thereto. Chandler v. Hudson, use, &c.366 2. Where interrogatories to the plaintiff are allowed, and an order made that he answer them within a definite time after the service of a copy, the Court impliedly affirms their pertinency, and the defendant cannot be compelled to receive answers irregularly verified or insufficiently authenticated. Ib.366 3. Where the plaintiff, to whom interrogatories are propounded, is a non-resident, he may pray a commission to some one designated to take his answers, as in other cases where depositions or answers in Chancery are to be taken; but the certificate of an individual, describing himself as a justice of the peace of another State, and affirming that the plaintiff there verified his answers by oath administered by that individual, is not a sufficient verification, The Court cannot judicially know his official character, nor is it competent to prove it by the testimony of a witness who heard it said, at the place where the answers were made, that the person certifying them was a justice of the peace. Ib........... .....366

1

DOMICIL-CONTINUED.

2. Where one, resident in Georgia, came to this State, for the purpose of settling here, and leased land and purchased materials for the erection of a foundry, and returned to Georgia for his family, and after some detention returned with his family, and has ever since resided in this State-Held, that he did not lose his domicil in Georgia, or acquire one in this State, until his actual removal to this State, with the intention of remaining. Ib.

159

3. When a person removes and settles his family at a place different from his former residence, the presumption is that such is also his residence, and the mere fact that he returns to his former place of doing business, is insufficient to warrant the presumption that such is his place of transacting business. This is a matter peculiarly within the knowledge of the defendant, and should be made to appear with certainty. Riggs v. Andrews & Co. .......628

DOWER.

1. A conveyance by the husband, to his wife, of a life estate in certain property, which conveys to her a present, vested interest, and is not testamentary in its character, will not bar the widow of her dower. Distributees of Mitchell, v. Mitchell, adm'r......... .....415

EJECTMENT AND TRESPASS TO TRY TITLE.

See Limitation, Statute of, 2, 3, 4.

ERROR, WRIT OF-CONTINUED.

3. Persons having an adverse interest, are not concluded by an erroneous decree, but they cannot, without further proceedings, forthwith sue out a writ of error. Ib.......

..177

4. When a writ of error is sued out by persons who are not parties to the proceedings below, the writ of error will be dismissed. Ib..........177 5. One who is ejected from land of which he was in possession, under process issued from a Court of Chancery, in a cause to which he was not a party or privy, cannot, on error, avail himself of irregularities occurring in the decree, or other part of the proceedings. Trammel v. Simmons....271 6. When a judgment is erroneously entered severally against the parties bound by a joint recognizance, the entire proceedings as to all the parties will be reversed upon the writ of error sued out by one only, and the cause remanded, that its unity may be preserved. Ellison v. The State.....274 7. The Supreme Court cannot be invested with jurisdiction to examine a cause in Chancery by a writ of error sued out on a decree pro forma, entered by consent of the parties. It is competent for the Chancellor to set aside such a decree as having been entered without any sufficient authority. Stone, et al. v. Lewin..

...395

8. After a will has been admitted to probate, letters testamentary granted thereon, and proceedings had thereon to a final settlement of the estate, the propriety of the probate of the will, cannot for the first time be raised in this Court. Bothwell, et al. v. Hamilton, Adm'r461 9. A cause is not before the Supreme Court, so as to authorize that Court to make an order in respect to it, until the term when the writ of error is returnable. Renfro, by her next friend, Ex parte......

..490

10. Where it is obvious from the proof furnished by the plaintiff himself, that he is not entitled to recover, no matter what may be the ruling of the Court upon other points raised in the cause by a prayer for instructions to the jury, an appellate Court should not reverse a judgment which has been rendered in favor of the defendant. Turcott v. Hall. ..522

11. Where a question of law, which should have been decided against the party excepting, is referred to the jury as an inquiry of fact, whose verdict effects the proper result, the judgment will not be reversed for the irregularity. Courtland v. Tarlton & Bullard.

.532

12. Whether the admission of facts, in a written proposition to compromise, be admissible evidence, or not, it is not error to charge the jury, that if the paper was written with the view to a compromise, and the promises contained in it were made for that purpose, the defendant was not bound by them. Such a charge does not deny effect to the facts. Ib..533 13. An execution was issued by a justice of the peace, at the suit of C. against the goods and chattels of A., and levied on a slave, which A. made oath

ERROR, WRIT OF-CONTINUED.

was the property of W., and held by the affiiant as his agent: a trial of the right of property was had between the plaintiff in execution and A., as agent, and the slave condemned to satisfy the execution; A. then, upon his petition, obtained a certiorari and entered into bond with M. as his stirety, and the cause being removed to the Circuit Court, was dismissed, on motion of C.: thereupon W. applied for a writ of error, and executed a bond with surety for its prosecution. Held, that if W. was the owner of the slave, the claim of property and all subsequent proceedings should have been in his name, instead of the name of A., as agent; that W. could not prosecute a writ of error on the judgment of dismissal, and that the judgment was correct. Alford and Mixon v. Colson, use, &c.

...550 14. When the petition of administrators claiming distribution as the representatives of a distributee is dismissed, and the final settlement in the Orphans' Court is made with other parties, the proper mode to revise the proceedings rejecting the claim is by certiorari, and a writ of error will be dismissed. Graham, et al. v. Abercrombie.

..552

15. When a demurrer is overruled to one count of a declaration, which is afterwards abandoned at the trial, this Court will not examine into the sufficiency of such count. Gayle v. The Cahawba and Marion R. R. Co.. .586 16. The party having proceeded and obtained another verdict and judgment, is responsible for any errors they may contain until the irregular proceedings are set aside. Sanky's Ex'rs v. Sanky's Distributees.....602 17. An appellate Court will not reverse a judgment because testimony unnecessary and superfluous, but which could not have misled the jury, has been permitted to be adduced by the successful party. Fant v. Cathcart...726 18. Where, giving full credit to all the plaintiff's proof, it fails to make out such a case as entitles him to recover, a charge to the jury which is erroneous, as the assertion of a legal proposition, furnishes no ground for the reversal of a judgment against him. Smith v. Houston...........737 19. Where infants are cited and do not appear, it is not error to render a decree without the appointment of a guardian ad litem. Parks v. Stonum, 752 20. The writ and declaration were at the suit of J. A. R., assignee, &c. of S. A. W. and A. R.; on the margin of the judgment entry the case is thus stated, J. A. W. assignee, &c. of W. and R: Held, that if the names of the parties had been entirely omitted on the margin of the judgment, the writ and declaration might perhaps have been referred to, to sustain it; but however this may be, the error was a " clerical misprision in entering judgment," and under the act of 1824, is amendable at the costs of the plaintiff in error, where a correction is first sought in an appellate court., Crawford v. Whittlesey....... .......806

21. Where a party is permitted to give incompetent testimony to support an