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3. A discrepancy between the debt and the mortgage giv-
en to secure it, may be explained by parol proof; and
the creditor will not be driven into equity for that pur-
See Presumptions, 2.
1. The owner of a city lot mortgages it in 1855; in Sep-
temper, 1856, a tax execution is issued to collect the tax
due by the mortgagor, for 1856, and sells, not the equ-
ity of redemption, but the whole property, a property
worth six or seven thousand dollars, for less than one ,
Held, That the lien of the mortgage is not divested by
the sale. Doane vs. Crittenden & Co.
2. A made a mortgage to B. which was not recorded un-
til after the three months had elapsed. Before fore-
closure, C. obtained a general judgment against A., the fi.
fa. from which was levied on the mortgaged property.
At the sale under this levy, notice of the mortgage was
given to the purchaser.
Held, That as the judgment creditor, had gained a pri-
ority over the mortgagee, the purchaser purchased free
from the encumbrance of the mortgage, notwithstand-
ing the notice. Smith vs. Jordan.
1. To entitle securities, upon a bail bond in trover, to
the writ of ne exeat against the administratrix of their
principal, it is not sufficient to allege, merely, that she
is insolvent, and that complainants are informed, and
believe, that the negroes in dispute will be removed be-
yond the limits of the State, and leave them bound for
their production, in the event of a recovery. Woods us.
2. To entitle a party to theprocess authorized by the Act
of 1830, to authorize the issuing of writs of ne ezeat &c.,
the affidavit of the party applying, required by the stat-
ule, must be positive. Holliday vr. Riodan.
1. Where the evidence is balanced, a judgment refu-
sing a new trial, will not be disturbed. Pearce vs.
2. Where there is a conflict of testimony, and a portion
being disregarded, for want of credibility in the wit-
nesses, it being apparent that they were incapable from
nonage to understand the facts about which they testi-
fy, and the balance preponderates in favor of the ver-
dict, it is not error in the Court to refuse to grant a new
trial, on the ground that the verdict was contrary to the
evidence. Walker vs. Walker, adm'r. &c.,
3. If no objection is made to the admission of illegal
evidence, its admission will not be ground for a new
trial. Brown & Bowen vs. Robinson,
4. Upon a motion for a new trial, it is a sufficient com-
pliance with the rule of Court requiring a brief of the
testimony to be filed under the approval of the Court,
if the same has been substantially agreed upon by the
counsel. Hamilton vs. Conyers,
5. A motion for new trial may be amended, so as to
perfect a brief of the testimony began, but not formally
finished, at the time the application was filed; the
counsel for movant agreeing to adopt the written state-
ment of the evidence taken down at the time, by the
The motion for a new trial is amendable.-BENNING J.
6. A new trial will not be granted on the ground of
newly discovered evidence; merely to give the party
an opportunity to impeach the credit, much less to
prove a mistake as to dates, in the testimony of a wit-
ness sworn on the trial. Mitchell vs. Printup,
7. Whenever the question is one of evidence only, and
there is room for apprehension that the jury, on ac-
count of the ambiguity in the language of the charge,
may have been misled in considering and weighing the
testimony, it is safest to send the case back for another
trial. Fain vs. Cornell, adm'x.,
8. When the question is one of fact purely—the sound-
ness or unsoundness of the property at the time of
sale—and the case has been fairly submitted to the ju-
ry, their verdict will not be disturbed. Hopkins vs.
9. If verdict be decidedly against the weight of evi-
dence, new trial should be granted. Parker vs. John-
See Bills of Exchange and Promissory Notes, 5.
See Practice Superior Court, 10.
An Ordinary has no jurisdiction to appoint a guar-
dian for an infant whose residence is out of his coun-
ty. Rives, guardian, vs. Sneed,
See Inferior Court.
See Guardian and Ward, 3.
A father is bound to support and educate his children, if
he is able to do so, even although they may have
property of their own. Hines and Bryan vs. Mullins,
The adopted father of a child is as much entitled to the
custody of his person as his actual parent. Rives,
guardian, vs. Sneed,
See Appeals, 5.
See Equity, Pl. and Pr., 4, 5.
See Married Women, 1, 2, 3.
1. A. gives two promissory notes to B.; B. sues A. and C.
as partners; C. pleads under oath that at the time
said notes were given, he was not the partner of A.
Held, That this plea put upon B, the necessity of show-
ing by proof that A. had authority to bind C. Strauss
vs. Waldo, Barry & Co.,
2. After the dissolution of a partnership, one partner
cannot bind another by a new contract. Bower us.
PASSENGERS ON RAILROADS-THEIR
1. A passenger for his fare, has a right to have his bag-
gage carried; by which is meant the ordinary wearing
apparel customarily carried by travelers, and such oth-
er articles as may be needed for his comfort or amuse-
ment. Hutchins & Co. vs. Western and Atlantic
2. Money, except for the payment of expenses, and
merchandise, not included in the term baggage. Id.
3. Travelers bound to pay customary and reasonable
freight for the transportation of money. Id.
4. A person transporting money over a railroad, upon
which freight is demandable, cannot defeat the right
to exact the freight and recover it, by a fraudulent con-
cealment of it. Id.
5. Whatever is carried into the passenger car of rail-
road as baggage, is so far considered in the possession
of the conductor or agent of the road, as to authorize
him to exercise the right of retainer for dues for pas-
sage or freight on the article itself. Id.
1. It is a good defence in an action for the price of
work done under a special contract, that the work was
unfaithfully done, whether there was an express war-
ranty or not. Doster vs. Brown,
2. A declaration alleging that the defendants received
40 bales of cotton, to be delivered to R. & C., at Charles-