one to the other, so as in effect to embody in itself the paper referred to without the aid of parol proof to effect such union, Ibid. See Chancery-Debtor and Creditor-Pleading-Vendor and Vendee-Registration. FREEHOLDER. 1. Residence and freehold in another county may be pleaded in abatement, although it contradicts the sheriff's return. Cox v. Jones & Jones, 1 S. 379. 2. When an action is brought against defendant while he is a resident freeholder of another county, he must take advantage of such matter of defence in the action, and if the case proceeds to judgment, he will be foreclosed as to any future defence on that ground. Torbert v. Wilson, 1 S. & P. 200. 3. It is not sufficient to sustain a plea in abatement, to aver that defendant was a resident and freeholder of another county at the time of the service, but at the time of issuing the writ. Mitchell v. Allen, 2 S. & P. 247. 4. If one consents to a suit in a different county from that wherein he resides and is a freeholder, he will not be permitted afterwards to plead his privilege. McKinney v. Law, 1 P. 129. freeholder shall be sued out of before justices of the peace.Read v. Coker, 1 S. 22. 5. The statute of 1817, enacting that no the county of his residence, extends to suits 6. Plea in abatement that defendant was resident of another county when writ was served-not good, without it also state that he was a freeholder of said county. Wilson v. Oliver, 1 S. 46. 7. Certificate of register of land office, shewing certain payments on land, and an extension for the balance due, sufficient to support the plea of freehold; and such certificate in the absence of proof to the contrary, is to be taken as genuine. Cox v. Jones & Jones, 1 S. 379. 8. Under the act of 1807, exempting freeholders from suit out of the county of their permanent residence, it is not required that the residence and freehold should be in the same county. The words "permanent residence,” and residence, are equivilent in signification. Moore & Baker v. Coker, 2 P 347. 9. A plea in abatement of a writ, alledging the residence of defendant at the commencement of the suit in another county, need not alledge the ground of abatement to have continued up to the time of filing the plea; and a change of residence of defendant between the time of suit and the time of interposing the defence, cannot deprive him of his privilege under the statute authorizing the plea. Powers v. Bryant, ad'mr. 7 P. 9. 10. The words "resident citizen," in such a plea are as forcible to indicate a fixed home as the words " permanent residence," used in the statute. Ibid. 11. To support such a plea in abatement, a conveyance of a lot of land to defendant, without suppletory proof is not sufficient; semble that proof that the grantor in the conveyance had title, or that defendant was in actual occupancy of the land, would sustain the defence. Ibid. See Abatement, FREE PERSONS OF COLOR. 1. In a suit between a white man and a free person of color, or of mixed blood, within the third degree, when the amount in controversy is under $20, and the former is sworn-the latter has also a right to his own oath. Ivey v. Hardy, 2 P. 548. 2. That class of persons embraced by the act of 1823, are in civil suits capable of being witnesses only for and against persons of the same class, and are incompetent witnesses in any case whatever where a white person is a party. Carroll v. Pathkiller, 3 P. 279. See Wills. GAMING. 1. Plea stating that note was given for money won at gambling, without stating at what game-good. Jordan v. Locke, A. R. 254. 2. An action cannot be maintained to recover back money lost on a wager. Tindall v. Childress & May, 2 S. & P. 250. 3. A note executed on sufficient consideration, but lost by an assignee on a horse race, cannot be avoided by the payor in the hands of a subsequent innocent holder under the statute of 1807. Ibid. 4. The statute of 1807 does not embrace the case of a transfer or assignment of a note won at gaming. Ibid. Roberts v. Taylor, 7 P. 251. ( 5. The indorsement of a note or bond is a contract within the meaning of the statute 1807, and is void as between the original parties—and in all cases of contract arising out of gaming between the original parties, the court of chancery will interfere when the money has not been actually paid. Roberts v. Taylor, 7 P.251. 6. It may well admit of doubt whether, independent of all statutory regulations, money won at play may not be recovered back. Ibid. See Criminal Law-Set-Off. GIFT. 1. A father having given some slaves to his son-in-law at his marriage, some months afterwards gives him another slave, being at the time more indebted than to the value of his property. This latter gift is not fraudulent per se, but the circumstances are to be left to the jury. Toulmin v. Buchanan's ex'r. 1 S, 67. 2. A parol gift of a slave in no case held good, although there is a statute in the State requiring bills of sale of slaves to be recorded, &c., on the ground that the statute does not operate between parties and those claiming under them. Goodwin v. Morgan, 1 S. 278. 3. If a father send slaves to his son-in-law shortly after marriage, and has said that he has given them, his declarations made afterwards, that he has not given, but only lent them, are not admissible. High v. Stamback, 1 S. 24. 4. Upon an agreement between a debtor and creditor, that a slave should be sold at constable's sale, and purchased by the creditor, with the condition that the said slave might afterwards be redeemed for the son of the debtor, as a gift from his father, when the purchase money should be refunded;—held that the delivery to the creditor was a sufficient delivery to the_son, to constitute a valid parol gift by the creditor, redeemed the slave under the contract. Smith v. Wiggins, 3 S. 121. Ibid. 5. To constitute a valid gift, either inter vivos or causa mortis, there must be an actual delivery, or something equivalent to it. 6. It is essential to the validity of a parol gift of personal property, that possession should accompany the gift. Frisbie, et ux. v. McCurter, 1 S. & P, 56. See Agreements and Contracts. GRANT. 1. A possession of twenty years, under claim of title, creates a presumption of a grant. Stodder v. Powell, 1 S. 287. 2. The allotment of lands made to the French emigrants under act of congress 1817, for the encouragement of the vine and the olive, may be assigned by the grantees. Jenkins v. Noel, 3 S. 60. 3. Estates granted by government, subject to a forfeiture upon a future condition-in the event of their forfeiture, no entry or other act is necessary in order to divest the estate out of the grantee. Kennedy & Moreland v. Heirs of McCartney, 4 P. 141. GUARDIAN AND WARD. 1. A guardian, for improper conduct as such, may be removed by the county court. Ripitoe v. Hall, 1 S. 166. 2. On such a complaint against him, after plea to the merits, verdict and judment, he cannot object to the jurisdiction of the court. Ibid. 3. Nor can he complain that matters were tried by a jury which should have been tried by the court, he having claimed a jury trial. Ibid. 4. Action on guardian's bond must be in the name of the judge of the county court for the use of the person injured. It is, however, sufficient if the declaration show to whose use. It is not absolutely necessary to be mentioned in the writ, nor is it necessary that it appear in the declaration, in what particular manner he has become interested. Davis v. Dickson, 2 S. 370. 5. A settlement made between guardian and ward, will not be opened by the court of Chancery after a period of ten years, when it does not appear but that the ward was capable of being correctly informed, and where no deception nor improper influence seems to have been exerted by the guardian. Southall v. Clark, 3 S. & P. 338. 6. In an action by guardian to recover money had and received to the use of his ward by a former guardian, the right to sue may be questioned by plea. But under the general issue in non-assumpsit, the court cannot for want of profert of letters, direct the jury to find for defendant. Tate, Guardian v. Gilbert, 5 S. & P. 114. 7. A guardian, generally and legally appointed under the statute, may well maintain an action in his own name for the use of his ward ;-it seems, however, to be otherwise in cases where one sues as a mere prochein ami, or guardian ad litem. .Ibid. 8. If, in a suit by guardian, it is omitted in the declaration to make profert of the letters of guardianship, such defect is cured by verdict, and the omission can only be taken advantage of by demurrer. Switzer v. Holloway, 2 P. 89. 9. In the final settlement of the accounts of a guardian before the orphan's court, an allowance to the ward for his labor while employed for the guardian, cannot be made. Bass by Guardian, v. Cook, 4 P. 390. 10. A guardian may voluntarily appear before the orphan's court and effect a settlement of his accounts, without any process from the court preceding his appearance:-and when he thus appears, he cannot afterwards object in error that the record does not show that he derived his trust from the court with which his settlement has been made; nor can he avail himself in error of the fact that the record does not show that publication was made as ordered. McLeod v. Mason, 5 P. 223. 11. In proceedings for the settlement of guardian's accounts, it need not appear that his successor was made a party, or from what court such successor obtained his trust. Ibid. 12. When a suit is prosecuted for the benefit of a ward, the guardian should describe the ward upon the record, and the judgment should pursue the process. Ibid. 13. In proceedings ex parte against a guardian on a settlement of his accounts, an order granting an execution against him to his successor by name, is erroneous-it should be in the name of the ward, by the successor. 14. Though the deeds of an infant conveying lands on a full equivalent, are within the description of deeds merely voidable, yet, in respect to such contracts, the guardian is not to be viewed in the light of a stranger. Freeman v. Bradford, 5 S. 270. 15. The dominion and authority of a guardian over the real estate of his ward, is conclusive against the control or interference of the ward, during his minority; and the deed of an infant, made during the continuance of his wardship, conveying his lands, passes no title as against his guardian. Ibid. 16. A father, as the natural guardian of the person of his child during infancy, has, by virtue of his relation, no authority to exercise any control over the estate of the minor. Isaacs, per pro ami v. Boyd et al. 5 P. 388. 17. The only control which he can properly exercise, must be derived from the competent authority, and on giving the bond required by the statute; and therefore as natural guardian, he can neither release or compromise a suit prosecuted by him on behalf of the minor. Ibid. 18. A guardian may sue in his own name when he has the right of possession, or where the possession is injured; but where the matter lies in action, the suit must be in the name of the ward. Sutherland v. Goff, guardian, 5 P. 508. 19. Thus a guardian cannot maintain assumpsit to recover the value of a slave, the property of his ward, who has been hired to defendant by the guardian, and whose death is alledged to have been caused by the negligence of the hirer, and this, although a promise to pay what an arbiter should determine. Ibid. 20. When a guardian makes application in his own name to have a sum of money set apart for an infant legatee of a vested legacy, and a judgment is obtained against the executor, the judgment will be reversed-as the application should have been in the name of the ward; and the judgment rendered in his favor. Gregg, et al. v. Betheu, 6 P. 9. 21. It is competent for the county court to set aside the claim of a father to the wardship of his child's estate in favor of a stranger, if it appear that the father is unfit for the station; and therefore the relation of the parent forms no exclusive claim to the wardship. Huil v. Nixon, et al. 6 P. 77. 22. It is good ground for revoking letters of guardianship, that they were improvidently granted, and that the court had no jurisdiction when the letters were granted. Ibid. 23. It seems that a mother has no power as the natural guardian, to make a binding contract with a third person for the service of her daughter until she arrives of age. Morris v. Low & Rogers, 4 S. & P. 123, 24. "But it is clear that no such contract is obligatory, if hy parol. Ibid. 25. Board and lodging, care and attention, to a plaintiff's ward, form no ground of offset against such plaintiff, when he sues on a note payable to him as administrator. Tate v. Chandler, 4 S. & P. 417. See County and Orphan's Court-Costs. |