sion of the Supreme Court. Robinson vs. Robinson,
A decree setting apart half of the defendant's land to
the wife, and half to the husband, during their respec-
tive lives, with remainder to their children, is not war-
ranted by law. Ibid.
1. Where the legal title to real estate was vested as a se-
curity for the payment of the purchase money, and the
equitable owner died, his widow cannot have dower as-
signed to her without a discharge of the sum charged
on the estate, and if the money be not paid, she is en-
titled to have the land sold for its payment, and to be
endowed of one-third of the surplus. Thompson vs.
Cochran et als, 72.
Chester borrowed money and secured his endorsers by
deed of trust on real estate. He again borrowed money
with the same endorsers, and applied it in part satisfac-
tion of the debt secured by deed and died. It is held,
that the dower of the widow was chargeable with the
unpaid balance in the deed of trust, and that the endor-
sers had no right to tack to the deed the sum for which
they became subsequently responsible. Greer & Hart-
sell vs. Chester's Heirs and Rep., 77.
A deed freely and voluntarily made by a person when
intoxicated, though not so much so as to be incapable of
understanding the transaction, and without the fraudu-
lent procurement of the grantee, will not be set aside by
a court of Chancery at the instance of the grantee.
Morris vs. Nixon, 579.
DYING DECLARATIONS.
1. To make dying declarations competent testimony, the
person making them must be conscious of the peril of
his situation, and believe his death impending. This
need not be stated by him, but it must be fairly infera-
ble from his language and his condition. Nelson, a slave
vs. The State.
2. Dying declarations are admitted, from the necessity of
the case, to identify the prisoner, and establish the cir-
cumstances of the res gesta or direct transactions from
DYING DECLARATIONS-Continued.
which the death results; when they relate to former and
distinct transactions, they do not seem to come within
this principle of necessity. Quere, therefore, whether
the subject matter of the declarations of deceased,
namely that the prisoner had two or three times before
tried to kill him, would have been competent testimony.
Ibid.
1. A charge in an indictment, under the act of 1841, ch.
31, that certain persons were judges of the election, is
a sufficient averment that they were duly made and ap-
pointed judges. The State vs. Randles & Fox 9.
To convict any one for illegal voting under the act of
1841, ch. 31, the voter must know a state of facts at the
time of his voting, which in point of law, disqualify
him from voting. A mere ignorance of the law will not
excuse illegal voting. McGuire vs. The State 54.
Where a will was made, and slaves directed to be eman-
cipated, and testator died before the passage of the act
of 1829: It is held, that the County Court of the county
may give the assent of the State to the emancipation.
John vs. Tate, 388,
Debt will not lie by endorsee against his immediate en-
dorser. Frierson & Hughes vs. Reeves, 359.
2. See NEGOTIABLE PAPER.
To defeat the absolute delivery of a deed, and convert
it into an escrow, the party must make an express con-
dition on which he delivers it, and that condition must
not be complied with: An understanding, for instance,
that others are to sign the instrument, who fail to do so,
is not sufficient. It must be handed over on the condi-
tion that if others do not sign it, it shall be no deed.
Carrick vs, French, 459.
When a suit for a divorce, and to secure a separate es-
tate was compromised by the husband and trustees of
the wife, and a given sum settled on the wife absolutely,
with a right to dispose of it by will, and such compromise
was made the decree of the court after the death of the
wife, by the husband and executor of the will: It is
held, that such decree was an estoppel of the husband's
right to resist the probate of her will. Wynne vs. Spiers,
1. When the competency of testimony is objected to in the
Circuit Court on one insufficient ground it cannot be
objected to on another, in a court for the correction of
errors. Monteeth vs. Caldwell, 13.
2. Where an order to take a deposition was made in the
case of George Monteeth instead of John Monteeth, it is
held, that if it appear to be a clerical error, and the or-
der was made in the case of John Monteeth, the depo-
sition is admissible. Ibid.
A certified copy of a marriage license, with the certified
certificate of the marriage, is not, under the 16th sec-
tion of the act of 1829, conclusive proof of the mar-
riage. The certificates may be proved to be forgeries,
or acts of unauthorized persons. Rice vs. The State, 14.
An admission of a fact is not conclusive, but such ad-
mission may be disproved. Rice vs. R. R. Bank, 39.
Where it appears that the plaintiff went to trial under
the belief that the deposition of one of his witnesses
had been legally taken, but which was rejected, because
the lawyer who attended on behalf of the defendant, had
no authority from the defendant; It is held, that the Cir-
cuit Judge should have granted a new trial, in order
that the deposition might have been legally taken. Bank
of Tennessee vs. Cowan, 70.
Where a notary's book contained an entry of protest for
non-payment and of notice given, and he stated that he
was in the habit of making such entries at the happen-
ing of the event, his belief, based upon such entry, is
good evidence. It was not necessary that he should
swear that he had a recollection of the protest and notice.
Ibid.
Reputation may be heard to establish the pedigree of
illegitimate children. Ford vs. Ford, 92.
Where a will is impeached on the ground of the insanity
of testator, it is incumbent on those who impeach it, to
show that the maker was not of sound mind at the date
of the will; and for this purpose proof of insanity both
before and after the date of the will is admissible. This
proof throws the onus of proof of sanity, at the date of
the will, on those who support the will as valid. Ibid.
The general reputation of a witness as connected with
his credibility in a court of justice, is the estimate his
neighbors place upon his veracity, and an impeaching
witness must state whether he knows the general repu-
tation of the person in question; what that reputation is,
and whether, from his knowledge of such reputation, he
would believe him in a court of justice. Ibid.
Where a testator in a fit of insanity directs a will to be
destroyed, and it was destroyed, it is held, that this did
not amount to a revocation, and its contents being as-
certained, the will can be set up by proof, as other facts
are proven in a court of justice. Two witnesses are not
necessary. Ibid.
Where a will was directed by testator to be destroyed,
and it was not destroyed, but preserved, and the testator
afterwards ascertaining the fact, recognizes it as his
will, and intends it shall stand as such, it is held, that
there is no revocation, and that two witnesses are not
necessary to authorize a jury to set up the will. Ibid.
The date of payment of a promissory note cannot be
postponed beyond the time specified in its face by parol
proof, except by fraud, accident or mistake the note
does not contain the true stipulations of the contract.
Campbell vs. Upshaw 185.
Parol evidence is admissible to prove an agreement, on
the assignment of negotiable paper, to waive demand
and notice. Dick vs. Martin 263.
Where the drawer of a will takes a considerable inter-
est under it, this should excite the vigilance and jeal-
ousy of the court, to see that the testator was fully
aware of the contents of the will, and freely sanctioned
them. The previous declarations of testator are com-
petent evidence to go to the jury to prove the approba-
tion of the contents of the will; but the sufficiency of
such declaration is a question for the jury to determine,
and not the court. Patton Ex'r vs. Allison et als 320.
15. See PAROL.
FALSE IMPRISONMENT.
No actual force is necessary to constitute a false impris-
onment. If a man is restrained of his personal lib-
erty, that amounts to a false imprisonment. Smith vs.
The State 43.
Where a party is charged with a felonious assault, and
a nolle prosequi is entered as to the felony; it is a dis-
charge of the assault on that indictment. Brittain vs.
2. The putting out an eye is a maim, and an indictment
under the 55th section of the penal code for putting out
the eye, the putting out the eye whereby the party was
maimed. Chick vs. The State 164.
FEME COVERT.
See SEPARATE ESTATE.
The owner of land bordering on a stream is entitled to
have granted to him by the County Court the ferry
franchise; but if he do not apply, the County Court
may grant it to another; and such other is not liable to
account to the owner of the land for the fees. Sparks
vs. White, 86.
An absolute conveyance with a secret defeasance-ficti-
tious considerations, and unusual and extraordinary
powers given to the bargainor over the estate conveyed;
these are decisive indications of fraud. Gibbs vs.
Thompson, 179.
A conveyance of record by the laws of Louisiana can-
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