other collecting officer, to the plaintiff without stipula-
ting at the time that it is to be kept open for his benefit,
it is functus officio, and cannot afterwards be levied for
the reimbursement of said officer. Arnett vs Cloud and
others
2. Executions must have a return made upon them by the
proper officer every seven years, or they will be presumed
to have been satisfied and fraudulently kept open. See
title "Dormant Judgments and Executions." Booth vs. Wil-
liams
1. It is a good plea for a defendant who is sued as execu-
tor, that since the last continuance of the cause, his let-
ters testamentary have been revoked and administration
committed by the Ordinary to another, to whom he has
delivered over all the goods in his hands. Broach and
Broach vs. Walker
1. In cases of fraud the creditors may sue the donee as ex-
ecutor de son tort after the death of the donor. Trippe &
Slade and others vs. Lowe's Admr. and others
1. Where the testator leaves something to be done by the
trustee, as to convey, it is an executory trust. Edmondson
and wife vs. Dyson
2. When property is bequeathed to A in trust for the use
of B during his natural life, with instructions to the trus-
tee to convey to whomsoever he shall by will appoint,
and if he dies intestate then to convey the property to
the heirs at law of B absolutely, and B dies intestate;
held that this is an executory trust, to which the rule in
Shelly's case does not apply; and that the heirs at law
of B take as purchasers, and not as heirs in course of
administration.
FEES OF SHERIFFS FOR DIETING SLAVES.
1. In what cases the sheriff not entitled to fees for dieting
slaves. See title "Sheriffs." Hicks vs. Moore and others
FEES OF SHERIFFS ON SALES.
1. The commissions of sheriffs on money raised by levy and
sale, are regulated according to the amount of the exe-
cutions. On executions not exceeding in amount sixty-
four dollars and twenty-eight cents, they are entitled to
6 per cent; on executions above that sum but which
do not exceed four hundred and twenty-eight dollars
and fifty-six cents, 3 per cent; and on executions
which do exceed that sum, 1 per cent.
And on
all balances remaining to be paid to the defendant
in execution, or otherwise disposed of, the sheriff is
entitled to the same commissions relatively to amount,
as in case of executions. Aycock vs. Buffington, guardian
1 When a formal order of the Court below overruling a
demurrer, and the special reasons for its judgment, are
not indispensably necessary to the hearing of the cause
in the Supreme Court. See title " Bill of Exceptions."
Cary, Assignee, &c. ads. Rice, Receiver, &c.
FRAUD AND FRAUDULENT CONVEYANCES.
1. If a creditor purchase property of his debtor in satisfac-
tion of his own debt, and the debts of other favoured
creditors, and buy a large surplus over to the exclusion.
of a particular creditor whose suit is pending, it is a
badge of fraud. Peck vs. Land
2. The possession of property real or personal, remaining
with the vendee after an absolute deed of conveyance,
is evidence of fraud. Ib.
3. A creditor or third person, may pay a full and fair price
to an insolvent debtor for property, still, if the purchase
is made to delay or defraud creditors of their rights, it
is void as to them.
4. In frauds, courts of equity and courts of law have con-
current jurisdiction, except in case of fraud in obtaining
a will. Trippe & Slade and others vs. Lowe's Admr, and
others
5. It is a general rule that fraud vitiates all contracts.
Coffee and others vs. Newsom, Executor -
6. When there has been a fraudulent representation by a
vendor to the vendee, with regard to his title to a settle-
ment of land, and the vendee seeks a rescission on that
ground, the defect of title must be so great as to render
the settlement of land contracted for unfit for the use in-
tended; that portion of the land to which the vendor
cannot make title, must constitute the main inducement
to the purchase. Ib. -
7. Where the vendee went into the possession of a settle-
ment of land purchased of the vendor upon the faith of
his representations as to the title thereto, which repre
sentations were false and fraudulent, and known to have
been so by the vendor at the time of making them, it
was held, a court of equity would retain a bill at the
instance of the vendee to rescind the contract, notwith-
standing the vendee had not been evicted from the pos-
session of the premises, nor had abandoned the posses-
sion thereof, nor had offered to do so. Ib.
1. The Act of 1821, declaring that suits in favour of a guar-
dian shall not abate upon the revocation of his letters of
guardianship, but that the removal being suggested of
record, a scire facias may issue to make the successor a
party at any time after qualification and appointment,
does not take from chancery the right of appointing a
guardian ad litem, to prosecute a suit already com-
menced in behalf of an infant, provided no appointment
has been made by the Ordinary. Leonard vs. Scarborough
and wife et al.
1. See title "Affidavit of Illegality." Hurt vs. Mason
1. A makes his note at Columbus, Georgia, payable gener-
erally to B or bearer, B transfers it to C by delivery,
and C indorses it to D; C held to be an indorser, and not
a guarantor. Cox vs. Adams
2. In a suit by D the indorsee, against C the indorser, the
possession of the note held, prima facie evidence of the
delivery of it by B to C. Ib. -
3. Each indorsement is a new contract, and the contract
of indorsement as to its nature, construction and inter-
pretation, is governed by the lex loci contractus, and the
remedies thereon, by the law of the place where the
suit is instituted. Ib.
1. The Inferior Court may review and annul an order ab-
solute against a sheriff at a subsequent term, upon mo-
tion, when it is made to appear that he was not in con-
tempt: and its action is subject to revision by the Supe-
rior Court by writ of certiorari. Chipman vs. Barron
1. A verdict for the defendant in an equity cause does not
operate as a dissolution of the injunction granted there-
in as a matter of course, where an appeal is entered in
accordance with the Act of 1843.
1. An agent is liable for interest upon money admitted to
be in his hands from the time he received it. Anderson
and others vs. The State
2. He who has fraudulently received, or wrongfully de-
tains, the money of another, is chargeable with interest.
thereon from the time he received it. Ib.
1. In a writ of error on a judgment against an appellant
and his security on appeal, both must be joined. Morris
vs. Wiley, Parish & Co.
JOINT CONTRACTORS AND CO-PARTNERS.
1. The Act of 1820, to regulate the mode of prosecuting
actions against joint contractors and co-partners, applies
as well to joint and several contractors as to joint con-
tractors only, provided they are sued together in the
same action. Tedlie vs. Dill
1. If A as heir of C, recovers of B, the administrator, a
judgment for his distributive share, and afterwards sues
D as security on the administration bond, and recovers
a judgment for a less sum against him, and collects the
same, the first judgment is not merged in the latter;
and the payment in full of the latter, does not operate
as an extinguishment of the former, but as satisfaction
pro tanto only. Guerry vs. Perryman & Dennard
2. For the doctrine of setting off one judgment against
another; see title "Set-off." Colquitt vs. Bonner
3. The assignce of a judgment or execution under the Act
of the 23d December, 1829, takes it subject to any de-
fence which might have been set up against the original
plaintiff in the judgment or execution. Ib. .
4 Executions must be issued from judgments within seven
years from the time of their rendition, otherwise they
will be presumed to have been satisfied and fraudulently
kept open. See title "Dormant Judgments and Exe-
cutions." Booth vs. Williams
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