or by plea of satisfaction, &c.; or by shewing a want of jurisdiction in the court rendering the judgment,

Crawford v. Simmonton's ex'rs. 7 P. 110. 14. Defendant who intends to deny the existence of the judgment or show a variance in the allegations, must plead "nul tiel record," which concludes with a verification, and the replication averring its existence should conclude prout patet per recordum. Ibid

15. It is immaterial as to the form of the attestation of the clerk, if the presiding magistrate of his court has certified that it is in due form of law. Brown v. Adair, 1 S. & P. 49. Crawford v. Simmonton, ex'r. 7 P. 110.

16. No distinction can be made as to the manner of proving the proceedings of the courts of the United States established in a territory, and those of the courts of the same character established within the limits of a State. Womack, adm'r. v. Dearman, 7 P. 513.

17. Whether a territorial court created by the local legislature of a territory, can be viewed in any other light than the courts of a foreign country.dubitatur.

Ibid.

18. A transcript certified to be truly taken from the records of the clerk's office of a court of Cumberland county, Virginia, is not evidence of a decree of the court of that county. Allen v. Allen, A. R. 249.

19. An authentication by one of the judges of the supreme court of errors and appeals of Tennessee is sufficient, there being no chief justice of the court appointed by law; and such peculiarity may be shewn by the laws of Tennessee or semble, by the certificate of the judge.

Huff v. Campbell, 1 S. 19. 20. Though a receipt for an amount be indorsed on a note it is not conclusive, and the plaintiff may explain it, and show it was not paid. Gayle v. Randle, 1 S. 529. 21 In authenticating records under the act of Congress, it must appear that the judge who certified is the presiding magistrate of the particular court or district. Johnson v. Hawes, adm. 2 S. 27.

22. It must also appear that the clerk who certifies, was clerk at the date of the certificate. If this be uncertain, the authentication is insufficient.

Ibid. 23. To establish the existence of an incorporated bank, in a sister State, a copy of its charter properly authenticated, and parol proof of its being in operation, will be sufficient. Lucas v. Bank Georgia, 2 S. 147.

24. A statute of another State, may be proved by an exemplification under the great seal of the State, which should be affixed by the person to whom the custody of it has been legally confided, and accompanied by a certificate expressive of the object for which it is used.

Wilson v. Walker, 3 S. 211. 25. The certificate of a judge, to the exemplification of a record of another State, that the attestation of the clerk of the court is in proper form, 's sufficient. Brown v. Adair, 1 S. & P. 49. Tact of Congress of 1790, does not require the presiding judge or ify that the clerk was clerk at the time of attestation.

the only testimony for an authority of a publication, is the declaration of witnesses ore tenus, the book is inadmissible.

Herbert & Kyle v. Nashville Bank, 4 S. & P. 286.

29. The private statutes of any of the States of the Union, purporting to be published by authority of a law of the State, are entitled to be received as evidence in the courts of this State, of the public acts of such State. Whether this rule will be applicable to private statute?

Cox & Cox v. Robinson, 2 S. & P. 91. 30. A covenanted to pay B one thousand dollars, in Huntsville or Tennessee bank notes of good standing in Huntsville. Held that in a suit to recover said sum, evidence of the value of Tennessee notes in Tennessee, was inadmissible. Searcy v. Fearn, 2 S. & P. 128.

31. A deed made between parties in another state, under a contract contemplating no final execution or performance in this State, must be controlled in its effect-as to its proof, acknowledgment and registration, by the laws of the State where executed. Caldwell v. Edwards, 5 S. & P. 312.

32. A deed of gift made by one to his daughters in 1810, in North Carolina, of a slave, which did not appear to have been attested, proved and recorded as required by the statute of that State, and the father retained possession, until his death in Alabama-held, that the validity of the gift depended upon the laws of North Carolina, and that if the requirements of these laws were not complied with, the deed would be void.

Bart v. Kimble, 5 P. 13.

See Agreements and Contracts. Evidence,

FRAUD.

I. FRAUDS AT COMMON LAW;

AND OF CONVEYANCES AND SALES TO DEFRAUD CREDITORS AND PURCHASERS AT COMMON LAW AND UNDER STATUTE.

II. STATUTE OF FRAUDS AND PERJURIES; OF LEASES, ASSIGNMENTS, GRANTS, OR SURRENDER OF INTERESTS IN LAND; OF PROMISES TO ANSWER FOR THE DEBT DEFAULT OR MIS-CARRIAGE OF ANOTHER PERSON; OF CONTRACTS FOR THE SALE OF LANDS OR GOODS; AND WHAT WILL TAKE THE CASE OUT OF THE STATUTE.

I. Frauds at Common Law; and of Conveyances and Sales to Defraud Creditors and Purchasers at Common Law and under Statute.

1. Assignor of a note without recourse, still liable for fraudulent sentations, as to the solvency of maker.

repreHarton v. Watt, adm. A. R. 166. 2. If vendee retain possession, he cannot under plea of fraud, avoid the payment of the bond, given for the purchase money.

Christian v. Scott, A. R. 353.

3. A father having given some slaves to his son-in-law, on the marriage; some months after gives him another, being at the time indebted to more than the value of his property. The latter gift is not fraudulent, per se—but the circumstances are to be left to a jury.

Toulmin v. Buchanan's ex'rs, 1 S. 67. 4. A voluntary conveyance of property, executed by a father to his children, he being indebted at the time of executing the same, is void in respect to all previous creditors of the parent. Miller v. Thompson, 3 P. 196.

5. Whether such conveyances are void, with respect to the subsequent creditors of a parent, will depend on the intent with which they are executed. Ibid. 6. When such conveyance is made to a daughter, who afterwards marries, and the property passes not into the husband's possession, but remains with the grantor, it will be held void as to previous creditors; and the husband can take no title to the property conveyed, as against them. 1bid.

7. A voluntary settlement in favor of children, set aside as fraudulent, as against an existing creditor, under the circumstances.

Cato v. Easley, 2 S. 214.

8. A constructive fraud, is an act which the law declares to be fraudulent without enquiring into the motive; not because arbitrary rules have been laid down, but because such an act carries within itself, irresistable evidence of fraud. McBrown & Turner v. Rives, 1 S. 72.

9. A party who is secured by a deed of trust on property, may, when a defect is discovered in the deed, receive a judgment by confession from his debtor, and by execution sell the property. This is not a fraud on other creditors. Ibid.

10. Possession of personal property remaining with the vendor, is presumptive evidence of ownership in him; but this presumption may be rebutted by proof. Hobbs v. Bibb, 2 S. 54.

11. Such possession is only presumptive evidence of fraud, but is not fraud per se.

Ibid.

12. When possession remains with the vendor, it is not sufficient as against creditors that the consideration be bona fide, and the bill of sale recorded. It must appear to rebut the presumption of fraud that the sale was not made to hinder or delay creditors, and this is to be judged of by the circumstances of the case. Martin v. White, 2 S. 162. Ayres v. Moore, 2 S. 336 Miller v. Thompson, 3 P. 196.

13. Great inadequacy of price, though in general not of itself sufficient evidence of fraud in equity, yet when coupled with other circumstances, is strongly indicative of it. Broom et al. v. Draughan, exr. 3 S. 243. 14. When notes are transferred fraudulently to a third person, the proper decree in favor of a creditor against the fraudulent holder, is for an account of the amounts received, and the proceeds of the notes themselves; but not for the nominal amount of them, on supposition that they will be collected. Borman et al. v. Draughan, ex. 3 Š. 243.

15. Fraud, in the false representation of one's authority, to be available in bar-the representation must not only be false but fraudulent, and this cannot be if the person to whom it is made had an equal or better opportunity of judging of its correctness, than he who made it.

Craig v. Blow, 3 S. 452.

16. An issue in fact involving a question of fraud is proper to be determined by a jury; but when an issue in law arises, as when the validity of a deed or contract is drawn in question, it is the province of the court to pronounce a decision, if fraud is apparent on the face of the deed or contract, or follows from the facts of the case presented.

Richard v. Harrard, 1 S. & P. 139.

17. A deed of assignment, reserving to the debtor a portion of the property for his support, is void on the whole for fraud, and the favored creditors cannot avail themselves of the benefit of any part of it. Ibid.

18., S, by deed to M and L, conveys certain negroes to secure the payment of certain notes, with authority to sell, and pay the surplus to S. If the notes are punctually. paid, then the deed is to be void-S remains in possession; neither the possession of S nor the resulting trust in his favor make the deed fraudulent and void. Malone & Lyon v. Hamilton, A. R. 286.

19. When one falsely and fraudulently representing himself to be the agent of others, prosecuted a variety of legal proceedings against divers others, and induces them thereby to execute a note in compromise-held, that in an action on the note, a plea alledging these facts, was an available defence to the action. Wyatt v. Ayres & Farrant, 2 S. 157. 20. Evidence of character not admissible to repel the imputation of fraud in civil proceedings. Ward & Thompson, v. Herndon, 5 S. 382. 21. When a party with full knowledge of fraudulent circumstances recognizes or confirms the contract-he cannot afterwards set up fraud.

McGowen v. Garrard & Morgan, 2 S 47. 22. The possession of land continuing in the vendor, does not create the same presumption of fraud as in the case of sales of chattels

Pauling v. Sturgus, 3 S. 95. 23. Gross inadequacy of price may imply a fraud, and is a circumstance proper to be taken into consideration with other facts.

English v. Lane, 1 P. 328.

II. Statute of Frauds and Perjuries; of Leases, Assignments, Grants, or Surrender of Interests in Land; of Promises to Answer for the Debt, Default, or Mis-Carriage of another person; of Contracts for the Sale of Lands or Goods; and what will take the Case out of the Statute.

24. Promise by executors to take a case out of statute of limitations, need not be in writing-as it is not within statute of frauds.

Greening v. Brown, A. R. 353. 25. If A promises B, that if he will become the security of C, he will indemnify him-the consideration is sufficient-but the promise must be in writing, or else void under statute of frauds.

Brown v. Adams, 1 S. 51. 26. Under the statute, the promise must not only be in writing but on good consideration. 1bid. 27. Parol agreement to purchase lands, and equally to divide the same, within the statute of frauds. Henly v. Brown, 1 S. 144. 28. Parol contract for purchase of land is void, and assumpsit may be maintained to recover back money paid on such contract.

Allen v. Booker, 2 S. 21. 29. The payment of part of the purchase money does not take the case out of the statute.

1bid.

30. The shipper of goods damaged, having called the port-wardens to view the goods, with the purpose of charging the owners- -B, the agent of the owners, promised that if A would direct and proceed to sell the goods at auction-he, B, would pay the amount of the loss:-held, that this promise was not within the statute of frauds. Travis v. Allen, 1 S. & P. 192. 31. A bill of sale of personal property, with a condition of deference

founded on a valuable consideration and bona fide, is not fraudulent per se, against creditors without notice under statute of frauds-when the grantor retains possession for more than twelve months after sale.

Killough v. Steel, 1 S. & P. 262.

32. The term, "good consideration," in third section, statute of frauds— must be construed to mean, valuable consideration. Ibid.

33. When A employed B and C to do a certain work, and they employed D to assist them, a promise by A, at the request of D and C, to D to pay him for his work, was within the statute-and that D could maintain no action thereon. Thompkins v. Smith, 3 S. & P. 54.

34. A applied to B to request C to furnish goods to D, and he, A, would pay for them. B wrote to C, also, at request of A, representing his, A's, solvent condition-the goods were accordingly furnished by C:-held, that the promise of A was binding, and was not within the statute of frauds. Rhodes v. Leeds, 3 S. & P. 212.

35. Under the statute, if A promise to pay the debt of B, such promise must be in writing; but, if the credit is given to A, himself, though the consideration passes to B, it is not an.original undertaking and need not be in writing.

Ibid.

36. A sale of land by school commissioners, of sixteenth section, is within the statute of frauds requiring a memorandum; and such memorandum cannot be signed by the clerk, appointed by said commissioners, to attend said sale. School Commissioners v. Cammack, 3 S. & P. 411.

37. A parol contract for the sale of lands accompanied with possession, improvements by the vendee, uninterrupted occupancy, and frequent acts recognizing the sale, by the vendor, will take such contracts out of the statute of frauds-and authorize chancery to decree a specific performance.

Brock et al. v. Cook et al. 3 P. 464.

38. A promise to be binding, under the statute, must not only be in writing, but must be sustained by a consideration. The statute of 1811, makes the writing evidence of consideration only-until the consideration is put in issue. Click v. McAfee, 7 P. 62.

39. A note in writing, promising to pay a sum of money, "for that amount due the payee by R. T." the language employed clearly indicates that the credit of the drawee was substituted for that of R. T. and that a demand against the latter to that amount was extinguished; and is thus without the statute of fraud.

Ibid.

40. No matter what its form, a writing containing the essential terms of the contract, expressed with such certainty that they may be understood from the instrument itself or from some other writing to which it refers, without recourse to parol proof, and signed by the parties to be charged thereby, will be a sufficient memorandum under the statute.

Adams v. McMillan, ex'r, 7 P. 73.

41. Auction sales are within the statute, and a signing by the auctioneer is binding, as the agent of the party.

Ibid.

42. A letter from a purchaser containing a full and complete statement of the whole contract, except the price to be paid, and referring to no other instrument by which the price was to be ascertained, does not satisfy the requirements of the statute. Ibid.

43. Nor can a bill in chancery, containing a complete statement of a contract, and praying for a specific performance of it-be resorted to as evidence to satisfy the statute of frauds; as, by modern decisions, the statements in a bill are considered as the mere suggestions of counsel, and, therefore, not evidence of any fact between the same parties in another suit. Ibid.

44. When there are different papers stating different portions of a contract, they cannot be considered together unless there is a direct reference in