executor did, by fraud and deceit, and fraudulent and
false representations, procure the testator to make the
will, the admission of the executor, who takes an in-
terest under the will, made after qualification, in ref-
erence to the conduct or acts of the executor himself,
as to a matter relevant to the issue, (and his statement
that he had procured the testator to make the will for
certain purposes is such,) should have been admitted
as evidence in chief. The fact that such evidence was
admitted in rebuttal to impeach the executor, who tes-
tified as a witness in favor of the will, is not the full
measure of the rights of the caveators, and they are
entitled to a new trial ou account of the rejection of
this testimony as evidence in chief. Dennis et al. vs.
12. Where one of the grounds of caveat is undue influ-
ence exercised by the executor of the testator, in pro-
curing him to make the will, evidence showing that
the executor, as agent of the testator in 1863 or 1864,
applied to the Confederate conscripting officer to have
a white man exempted from military service for the
purpose of overseeing the plantation of the testator,
on the ground that the latter was so unsound in raind
as to be incapable of attending to his own business, is
admissible as evidence in chief for what weight the
jury may give to it, to show the executor's knowledge
of the state of the testator's mind, where the evidence,
with the exception of that of the executor himself
shows that the executor exerted his influence over the
testator (which was proved to be very great) to have
the will made, and all the witnesses testify that the
testator had been a man of very weak, if not entirely
unsound mind for fifteen years before his death, which
occurred in 1869. Ibid.
13. Evidence which ought properly to have been offered
in chief, but which was then omitted through inadver-
tance, if offered with the rebutting evidence, should
be admitted if otherwise unobjectionable. Ibid.
14. The paper in the handwriting of the executor, made
in 1857, showing the amount of property in his hands
as agent of the testator, was proper evidence in chief,
as tending to show the amount of interest taken by
the executor under the clause of the will which re-
lieved him from the payment of any balance that
might be found due by him to the testator, other than
that with which he is charged in the will, and should
have been admitted with the rebutting evidence, where
it was inadvertently omitted to be given in, in chief.
Ibid.
15. The record book of the Court of Ordinary, contain-
ing the original order granting letters of administra-
tion to the plaintiff, is admissible without accounting
for the non-production of the original letters. Me-
Rory vs. Sellars, administrator...
16. The statement of the overseer of defendant, who was
in possession of the land, and managing his property
for him as his agent, as to the reason why a fence was
located in a peculiar manner, is admissible to prove
the adverse possession of the defendant. Shipp et al.
vs. Wingfield, executor.....
17. Where an insurance was effected under an open
policy of insurance, issued to the company's agent, the
insured taking a certificate that his insurance was ac-
cording to the terms specified in said open policy,
which was retained by the agent:
Held, That in a suit for a loss, it was not sufficient for
the plaintiff to produce the certificate alone, since on
its face it appeared that it did not contain the whole
agreement. Underwriters' Agency vs. Sutherlin........ 652
1. In this State, a levy upon land is made by the entry
of the sheriff upon the fi. fa.; there is no actual seiz-
ure, and there is no levy until the entry is made.
Isam et al. vs. Hooks......
See Administrators and Executors.
EXPRESS COMPANY. See Curriers, 1.
1. When cotton is delivered to a railroad agent, con-
signed to a factor by tenants, in their own names, this
is not sufficient to charge the consignee with the land-
lord's portion, though he may have known it to have
been one fourth. Wilson & Company vs. Walker...... 319
2. Where a wife, with consent of her husband, rents
land on her own account, hires a man to cultivate it,
and furnishes and feeds a horse, out of her separate
estate, to be used in making the crop, the crop, when
made, is not subject to a factor's lien given by her hus-
band on his crop, made the same year, for provisions
furnished, especially when the evidence shows that
none of the provisions furnished were used by the
wife in making her crop. Dubose vs. McDonald...... 471
1. Upon the trial of a case, before a Justice of the Peace,
for forcible entry, some force on the part of the defen-
dant in entering must be shown. Where the entry is
proved to be peaceable, the verdict should be for the
defendant. Curry vs. Hendry.....
FRAUD. See Limitation of Actions, 6.
FRAUDS, STATUTE OF.
1. The building of a party-wall by the plaintiff, under
a parol agreement with the defendant that he would
pay for one-half of as much of the wall as he used,
when he built, is such a part performance of the con-
tract as takes it out of the statute of frauds. Raw-
son vs. Bell...................
2. Implied trusts are not within the statute of frauds,
and the Courts will hear parol evidence, showing the
facts from which they are sought to be implied. Alex-
ander, executrix, vs. Alexander et al........
1. C. holds the notes of W., which are not yet due,
secured by mortgage. Before they fall due, a judg
ment creditor of C.'s issues garnishment against W.
and obtains judgment against the garnishee for the
amount of C.'s debt to him (the creditor), which is
less than the amount of the notes. After judgment
against the garnishee, but before the notes fall due,
they are set apart to C. as personalty, under the home-
stead laws. On the maturity of the notes, the judg-
ment creditor issues execution against the garnishee
(which was levied on his property), who voluntarily
pays the amount to the attorney of the judgment
creditor. Before the maturity of the notes, the gar-
nishee had written notice that they had been set apart
to the payee as personalty, under the homestead laws :
Held, That C. was entitled to foreclose the mortgage for
the full amount of the notes. If the money has not
passed beyond the control of the Court, it should be
ordered to be paid in satisfaction of the mortgage
judgment in preference to the creditor's judgment
against the garnishee. If it has, C. is entitled to have
execution against the mortgaged property, the owner
of which must look to those to whom he paid the
money for remuneration. Watkins vs. Cason......... 444
2. The monthly wages of a clerk, subject to a pro rata
deduction for time lost, cannot be garnished in the
hands of his employer. Butler, McCarty & Co. vs.
Clark & Co.........
3. A return of a sheriff upon a writ of attachment,
which states that he served a named person person-
ally" with a summons of garnishment, may be
amended so as to show that he served such person as
president of a bank. If the summons of garnishment
has been lost, and the sheriff is dead, the plaintiff, on
motion to do so, should be permitted to prove by
aliunde testimony that the summons of garnishment
was directed to the person served as president of the
bank. If the garnishee denies it, he can tender an
issue, which, if found in favor of the plaintiff, will
entitle him to an order amending the return, "so as
to make the proceedings conform to the facts." Mayer
& Lowenstein vs. Chat. Nat. Bank........
GENERAL ASSEMBLY.
See Western and Atlantic Railroad, 2.
GUARDIAN AND WARD.
1. Implied trusts are not within the statute of frauds,
and the Courts will hear parol evidence, showing the
facts from which they are sought to be implied. Alex-
ander, executrix, vs. Alexander et al......
2. Where one holds the legal title to property, but the
same has been paid for by or with the funds of another,
the law implies a trust. Ibid.
3. Where a guardian has purchased property with the
funds of his wards, and has, by his written and sworn
answer to a bill in equity, so declared, and that he
holds it for their use, the wards may recover the prop
erty in a Court of law, notwithstanding it may appear
that the guardian took the deed to himself, making
no mention of his wards. Ibid.
4. Receipts in full by wards to their guardian, which, in
express terms, discharge the guardian from all liabil-
ity, may be explained by parol, and will only cover
such matters as were intended to be covered thereby.
Ibid.
5. A receipt in full by a ward to his guardian, dis-
charging him from all claims the ward may have
against him, in law or in equity, does not convey to
the guardian any title to the land held by the guar-
dian for him, even though the same be held under an
implied trust, especially if, at the time of the receipt,
the ward has reason to believe that the title to the
land is to the guardian as guardian. Ibid.
6. Section 1794 of the Code, declaring that a natural
guardian is not entitled to demand or receive the
property of a minor, until he or she has given bond
to the Ordinary, does not make such receipt illegal in
such a sense, as that the person paying it cannot
recover it back, or show that it has, in fact, been
accounted for by the natural guardian to the ward, or
applied to the benefit of the ward. Southwestern
Railroad Co. vs. Chapman, guardian, et at............. 557
7. Where a bill in equity was filed by a railroad com-
pany, alleging that it had paid the dividends on cer-
tain shares of stock belonging to a minor, to the
mother of the minor, the father being dead; that the
mother had appropriated the money paid to the neces-
sary uses and expenses of the minor; that a guardian.
of the minor had been subsequently appointed who
had brought suit against the railroad, and obtained a
judgment for the dividends; that on the trial of the
suit this defense of the company had been disallowed
by the Court on the ground that it was not a good
defense at law, since the mother was not a party to
the suit; that final judgment had given a lien against
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