3. A public sale may furnish satisfactory, though not always conclusive proof, of
the value of a thing sold. Waldo v. Gray, 184.
4. The presumption of our law is, that a person dying intestate, has left heirs
capable of succeeding to his estate; and this presumption is so violent, that
it can only be repelled by proof. Harvey v. Thornton, 217.
5. Under the act of congress the records and judicial proceedings of the courts
of any State are entitled to the same faith and credit in every other State,
which they have in their own; provided they be attested by the clerk, under
the seal of the court, and the judge or presiding officer certifies that the attes-
tation of the clerk is in accordance with the law or usage of the State where
the proceedings were had. Ducommun v. Hysinger et al. 249.
6. It is not necessary that the judge should certify that the person who attests
the record is the clerk, or that the seal is the seal of the court. The seal
speaks for itself, and is presumed to have been affixed by the person having
custody thereof, and that he had authority to do the act. Ib.
7. A record against Barent H. will not support a declaration describing a judg-
ment against Barnard H. Ib.
8. A majority of all the members elected to either branch of the general as-
sembly must concur in the final passage of the bill, or the act has no force.
Spangler v. Jacoby, 297.
9. The ayes and noes taken on the passage of the bill, is the only test of its val-
idity; and this vote must be entered on the journal. 1b.
10. The printed statute-book is not conclusive, but may be corrected by the
original act on file in the office of the Secretary of State. Ib.
11. It may be shown from the journals of either branch of the legislature, that a
particular act was not passed in the mode prescribed by the constitution. Ib.
12. If a contest arises as to the passage of an act, the journal may be appealed
to, to settle it. Ib.
13. The signatures of the speakers and the governor, to an act, are presumptive,
that it became a law in pursuance of the constitution; but this presumption
may be overthrown by the journals. Ib.
14. To lay the foundation for the introduction of evidence of former decla-
rations of witnesses, to impeach their testimony, it is not necessary to point
out to them every possible circumstance of identity, but it is sufficient if the
particular declarations are so pointed out, as will direct the mind of the wit-
ness of ordinary apprehension to them, if they were ever made by him.
Gotloff v. Henry et al., 384.
15. The court may, in its discretion, permit witnesses to testify in chief on the
part of the prosecution, whose names have not been furnished to the prisoner
prior to his arraignment. Gates v. The People, 433.
16. Confessions induced by the appliance of hope or fear are not admissible
in evidence; but if facts are elicited by such confession, they may be
given in evidence. So where a witness offered to render such assist-
ance to a prisoner charged with murder, as he might desire, and the pris-
oner requested him to tell his brother to write that letter, and that he, the
witness, would then place the letter in the post-office at a particular place,
and the witness carried the message, obtained the letter, and instead of
placing it in the office delivered it to the prosecutor, and it was read in evi-
dence on the trial:-
Held, that it was rightly received in evidence, and the fact that the prisoner was
deceived by the witness, did not render the evidence inadmissible. Ib.
17. That the former declarations of a witness, whose credibility is attacked, may be
given in evidence to corroborate his testimony in certain cases, is well settled,
though whether they are admissible in all cases, the authorities are conflicting,
and the question is here expressly waived. Ib.
18. Held, that evidence, showing that a confederate of the prisoner and the prisoner
had money in their possession immediately after the murder, similar to the
money, both in amount and description, known to have been in possession of
the murdered man, coupled with the fact that both the prisoner and his con-
federate were destitute of money prior to the murder, is admissible. Ib.
19. Where the real contest between litigants is the question, Whether the title to
the property in dispute belongs to one of the litigants, or a third person: —
Held, that a submission by the litigants of the matters in difference between
them and such third person, to arbitrators, and their award thereon, did not
render such submission and award admissible in evidence between them, as
without the consent of such third person, the award was of no binding
force. Woodward v. Woodward, 466.
20. Held, also, that where the award did not determine the ownership of property,
it was inadmissible on that ground upon the question of title to such property.
Under either of the issues of non cepit, or non detinet, it is incumbent on the
plaintiff to prove that the defendant had acquired possession of the property
wrongfully, or that he had it under his control, and refused to surrender it on
demand. Ib.
21. It is competent for a witness to prove, upon his voir dire, the execution of a
release of his interest in the matter litigated. Ault v. Rawson, 484.
22. The question of competency rests with the court, the jury decides upon cred-
ibility. Ib.
See FALSE PRETENCES; MORTGAGE, 15.
1. Where a quarter section of land has been sold on execution as one tract, and
the defendant has a title to but sixty-five acres of the tract, he cannot redeem
the part to which he has title, by paying the proportionate price for which
that part sold. The sale being an entire sale, must stand as such, or be
wholly vacated. Hawkins v. Vineyard et al. 26.
2. Property which is indivisible and of greater value than sixty dollars, cannot
be claimed by a judgment debtor, as being exempt from execution under our
statute. Waldo v. Gray, 184.
3. The owner cannot retain such property by paying the officer the excess of
value in money. Ib.
4. The levy of an execution upon personal property of value sufficient to sat-
isfy it, operates as a satisfaction of the execution for the time being, but it is not
an absolute satisfaction of it, and hence, any act on the part of the defendant
in execution, which destroys the fruits of the levy, will also remove its bind-
ing effect, as a satisfaction, and he will not be allowed to insist that the judg-
ment has been satisfied by the levy, the benefits of which he himself has pre-
vented the party from realizing. Montgomery v. Wayne et al. 373.
5. On an execution against one partner, the sheriff may seize partnership goods,
and sell the share of the partner against whom the process issued; the pur-
chaser becomes a tenant in common with the other partner, subject to the
right of such partner, and through him of the partnership creditors, to have
the property applied to the payment of the joint debts. But this right must
be enforced at equity. Newhall et al. v. Buckingham, 405.
6. In order to sell such joint interest, the officer must, for the time being, have
the custody of the property. Ib.
7. The purchaser succeeds only to the rights of the debtor partner, and takes
the property burdened with the joint debts, and the sheriff delivers it to him
and the other partner as tenants in common.
8. A court of equity will interfere to restrain a sale, until the partnership
account is taken, and the precise interest of the debtor partner ascertained.
9. Under our statute, whatever is the subject-matter of seizure and sale on
execution, may be taken by attachment, and held subject to sale on the judg-
ment that may be recovered.
10. Where lands are sold upon execution issued upon a judgment, and the judg-
ment debtor fails to redeem within twelve months from the sale, and there-
upon confesses judgment in favor of another creditor, for the express purpose
of enabling such judgment creditor to redeem within fifteen months, it is not
fraudulent as against the purchaser; and such judgment creditor has the right
to redeem under the statute. The purchaser at such a sale acquires no title,
either legal or equitable, but the right to his redemption money, if redeemed
by the judgment debtor within twelve, or by a judgment creditor within
fifteen months, or if not so redeemed, then to the sheriff's deed. Phillips v.
Demoss et al. 410.
11. And where a creditor first obtained his judgment before a justice of the peace,
and issued execution, which was returned nulla bona by the constable, though
the defendant had sufficient personal property to satisfy such execution,
which was known to both the creditor and the constable; and thereupon the
creditor filed a transcript of said judgment in the circuit clerk's office, and
caused execution to be issued thereon from the circuit court, by virtue of
which he redeemed the lands previously sold, as a judgment creditor :—
Held, that the constable's false return to his execution did not vitiate the redemp-
tion so made, though the constable might be liable to the party injured for
a false return.
12. Held, also, that a creditor was not bound to obtain his judgment within the
twelve months in order to have the right to redeem; but he could obtain his
judgment at any time before the expiration of the fifteen months. Ib.
EXECUTOR AND ADMINISTRATOR.
1. An administrator de bonis non has no authority to call on the first adminis-
trator, or in case of his decease, on his personal representative, for an
account of assets already administered upon. He can only administer upon
so much of the estate as remained unadministered upon. Rowan v. Kirk-
patrick, 1.
2. The distributee or creditor of the first intestate should prosecute the rep-
resentative of the first administrator, for any waste or misapplication of
assets. Ib.
3. Claims against the estate of a decedent (unless the claimants come within
some saving clause of the statute), should be presented within two years from
the granting of administration, or they will be barred from receiving any
share of the estate previously inventoried or accounted for. Ib.
4. An administrator is chargeable with interest, whenever he receives it, uses
the money, or unreasonably retains it. Ib.
5. Administrators who have acted in good faith in the collection of debts due
their intestates, exercising proper vigilance, directed by a reasonable judg-
ment, ought not to be charged with debts they may have failed to col-
6. A note given to A. B., administrator of the estate of C. D., may be sued by
A. B. in his own name, without describing himself as administrator. The
legal title to such a note, upon the death of A. B. passes to his legal repre-
sentatives. Newhall v. Turney, 338.
7. The powers of an administrator de bonis non, extend only to the recovery of
such goods and chattels of the intestate as remain unadministered in specie,
and to debts due the intestate which remain unpaid. But his authority does
not extend to assets already administered. Ib.
8. An administrator de bonis non cannot call upon a former administrator, nor
upon his personal representatives, to account for any part of the estate sold,
converted, or wasted by him. The creditors or distributees of an estate
may. 1b.
9. In an action to recover a demand accruing to an administrator after the death
of the intestate, the defendant cannot set off a debt due to him from the intes-
tate in his lifetime. Ib.
1. In determining the criminality of false pretences, it is necessary to consider
the ability or capacity of the person to whom they are presented, to detect
the falsity of them. Cowen v. The People, 348.
2. Under our statute, it is not necessary in an indictment for obtaining money,
&c., under false pretences, to charge all the pretences which were used to in-
fluence the party to part with his money. Ib.
3. It is proper to instruct the jury, that false pretences made by one of sev-
eral prisoners, in pursuance of an agreement, should be chargeable against
all. Ib.
4. What is not charged in an indictment need not be proved. 1b.
5. If the party, deceived by false pretences, is proved to have been unacquainted
with the kind of property passed upon him, it is proper for a jury to consider
that fact, in determining the quo animo of the parties accused. Ib.
6. A jury should, in making up their verdict, consider all the instructions
together, and not decide the case upon any one of them. Ib.
FRAUDS AND FRAUDULENT CONVEYANCES.
1. Where the owner of land stands by and suffers credit to be given to another
on the supposition that he owns the land, and aids in creating a belief that
such other person does own the land, he cannot afterwards defeat a me-
chanic's lien by insisting that the land is his own. Higgins v. Ferguson
et al. 269.
2. Where a debtor, in failing circumstances, by way of preference, makes a bill
of sale of his stock in trade, household furniture, &c., to one of his creditors,
and is thereupon employed by such creditor as his head clerk, or agent,
to manage the business in the name of his principal, the purchaser, and, at
the same time, such debtor retains possession of the household furniture,
under a lease from the purchaser, such a transaction, though calculated to
raise suspicion of collusion, is not conclusive of fraud, and may be explained.
And when, in such a case, a jury have found a verdict in favor of the pur-
chaser, and there was evidence warranting such a verdict, it will not be dis-
turbed, even though the court might have differed in opinion with the jury,
had they been sitting, in the first instance, as triers of the case. Powers v.
Green, 386.
See AGENT, 3, 5, 6; CHANCERY, 15, 19, 20; EXECUTION, 10, 11; FALSE
PRETENCES.
1. Where a party bound himself to another for a consideration to pay all the
expenses incurred on a journey from this State to California, it is such an
interest as can be reached by garnishee process. Moeller v. Quarrier et al.
2. The State is entitled to process of garnishment upon a judgment obtained;
and is entitled to the same remedies as any other judgment creditor. The
People v. Johnson et al. 342.
3. The answer of a garnishee, until it is contradicted or disproved, must be con-
sidered as true. It must clearly appear that he is chargeable, or he will be
discharged. Ib.
A parol gift of a chattel is incomplete without a delivery, or something equiva-
lent to it. The title does not pass while the donor has control of the chattel.
The People v. Johnson et al. 342.
1. A mortgage given to secure a loan limited to twenty thousand dollars, and
under other specific regulations on the face of the mortgage, must be fol-
lowed strictly to bind the guarantors or sureties. Ryan v. Shawneetown, 20.
2. Guarantors and sureties are not to be made liable beyond the express terms
of their contract and undertaking. They have a right to prescribe the terms
and conditions upon which they will assume a responsibility, and no other
person has a right to change those terms, even with the design of diminishing
the probability of ultimate loss by the sureties; and courts have no right to
inquire whether the change is advantageous or not. Ib.
3. In an action upon a special guaranty upon a note, it is necessary for the
plaintiff to aver and prove a consideration of the guaranty in order to main-
tain the action. Klein v. Currier, 237.
4. This is proved, in the first instance, by showing that the defendant's signature
is genuine; for the presumption of law then is, that the name was put there
at the time the note was made, and as a part of the original transaction, and
when that is the case, the consideration for the note is also a consideration
for the guaranty. Ib.
5. But where it is shown that the defendant executed the guaranty after the
delivery of the note, the burden of proof lies upon the plaintiff to show a new
and express consideration therefor. Ib.
6. A plea of no consideration, in such a case, amounts to the general issue, and
is obnoxious to a special demurrer. Ib.
7. A person who puts his name upon the back of a note is liable as guarantor,
unless a special contract for a different liability be shown. Ib.
8. The cases of Camden v. McCoy, 3 Scam. 437; Cushman v. Diment, Ib. 497;
and Carrol v. Weld, 13 Illinois, 683, approved. Ib.
1. A guardian, who converts money of his ward to his own use, is chargeable
with compound interest. Rowan v. Kirkpatrick, 1.
2. A guardian ad litem cannot waive any of the rights of the defendant whom he
represents, and when incompetent and illegal evidence is introduced without
objection by the guardian, the court is bound to notice and exclude such evi-
dence. Cartwright v. Wise et al. 417.
1. In an action to recover the penalty for hawking and peddling without license,
either party is entitled to an appeal to the circuit court. Webster v. The
People, 365.
2. Such an action is not criminal, and proof that would convince the judgment,
although a doubt might still remain on the minds of the jury, is all that is
requisite, to authorize a verdict of guilty. Ib.
A payment of rent made to a husband is a legal discharge of liability for rent
to a wife, arising out of her estate; although they were living apart. The
fact that husband and wife are living apart does not alter their legal rights
in this respect. Haralson v. Bridges, 37.
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