pose, it may order their destruction; but if it finds that they were
not being so held or used, it should order their restoration to the
owner. (Ind.) State v. Derry, 237.
JUDGMENT IN GARNISHMENT, Attacking by Showing the
Payment of the Original Judgment.-Where a transferee of an ex-
ecution sues out a garnishment proceeding against one who has
funds in his hands belonging to the principal debtor, one of the de-
fendants in the execution, said garnishment proceeding being based
on the judgment on which the execution was founded, a judgment
rendered in favor of such transferee, while conclusive against the
garnishee, may be attacked by the principal debtor, the defendant
in fi. fa., on the ground that subsequently to its rendition the judg
ment, upon which the transferred execution was founded, had been
paid off and discharged prior to the institution of the garnishment
proceedings. (Ga.) Warthen v. Melton, 184.
GROWING CROPS.
See Crops.
1. GUARDIAN-Liability on the Contracts for Ward.-A guard-
ian's liability upon his own contracts for the benefit of the ward is
personal, and the judgment of a court rendered for such a debt is
against him personally, not against the ward's estate. If he is com-
pelled to pay the debt, which is one properly made on behalf of his
ward, the county court will allow it out of the ward's estate; but the
liability of the estate is to be settled in the county court. (Or.)
Sturgis v. Sturgis, 724.
2. GUARDIAN.-An Action cannot be Maintained Against a
Guardian upon the liability of the ward, but only against the ward,
and the guardian, being a proper party, may appear and defend the
action in the interest of the ward, but he is not a party for the pur-
pose of establishing a personal liability against him. (Or.) Sturgis
v. Sturgis, 724.
3. GUARDIAN-Status of Guardianship of Spendthrift.-All pro-
ceedings provided by statute relating to guardian and ward after
the appointment of the guardian apply to the guardianship of a
spendthrift. (Or.) Sturgis v. Sturgis, 724.
Transactions Between-Fraud-Accounts and Settlement.
4. GUARDIAN AND WARD, Transaction and Settlement Be-
tween, When Relief from will be Granted in Equity.-Courts of equity
will not permit transactions between guardian and ward to stand even
when they occur after the guardianship has ceased, if the intermediate
period is short, unless the circumstances demonstrate, in the highest
sense of the term, full deliberation on the part of the wards and the
utmost good faith on the part of the guardian. (Ala.) Willis v.
Rice, 55.
5. GUARDIAN AND WARD- Settlements, Obtaining, Duty of
Guardian.—Before obtaining the acknowledgment of a settlement from
his wards, it is the duty of the guardian to first make a just accounting
and full settlement or disclosure of every fact necessary to inform
the ward of all with which he was parting, and then committing it
to his uninfluenced will whether he will give a receipt or not.
(Ala.) Willis v. Rice, 55.
6. GUARDIAN AND WARD-Burden of Proof in Suit for a Set-
tlement of Accounts, Though Receipts have been Given.--In a suit
by former wards against a guardian for the settlement of his accounts,
though they have given acknowledgments of such settlement, and
decrees in discharge have been entered thereon, the guardian must
assume the burden of proving that he made full communication of
everything within his knowledge calculated to influence the conduct
of his wards, and that he obtained nothing from them without their
free consent given after receiving information of all facts bearing on
their rights and the extent of them. (Ala.) Willis v. Rice, 55.
6a. GUARDIAN AND WARD-Interest, Discharge of.-Where a
partial settlement was made of the accounts of a guardian with his
wards, and no subsequent settlements were attempted, he is charge-
able with simple interest on all sums in his hands after such partial
settlement. (Ala.) Willis v. Rice, 55.
6b. GUARDIAN AND WARD-Answer, Guardian, When Bound by.
If a guardian in his answer to a suit for the settlement of his ac-
counts charges himself with interest on an item for a time designated,
it is within the province of the register to whom the accounts were
referred to act upon the answer thus made and charge interest accord-
ingly. (Ala.) Willis v. Rice, 55.
7. GUARDIAN, Charges of Fraud Against, When Sufficiently
Pleaded. In a suit against the former guardian of the complainants,
an allegation that he took advantage of their youth and inexperience
and of his influence over them in getting them to sign a paper ac-
knowledging full settlement of his accounts and consenting to his
discharge from liability as their guardian, is a sufficient pleading of
his fraud. (Ala.) Willis v. Rice, 55.
8. FRAUDS, Pleading Want of Knowledge of.-A bill to obtain a
settlement from the defendant of his accounts as guardian of the
complainants and relief from an acknowledgment of a settlement of
such accounts made by them and a decree entered thereon, which
alleged that the complainants discovered the fraud upon which they
rely within a year prior to the commencement of the suit, brings the
bill within the exception to the statute of limitations whereby the
time within which suits may be commenced does not commence to run
until a year after the fraud is discovered. (Ala.) Willis v. Rice,
55.
9. GUARDIAN-Sale of Ward's Property.-The Personal or Real
Estate of a ward can be converted into cash only by proper proceed-
ings under the direction of the county court. (Or.) Sturgis v.
Sturgis, 724.
10. GUARDIAN'S SALE-Absence of Special Bond.-The require
ment by the Arkansas statute of a special bond by a guardian when
he sells lands of his ward applies only to sales for reinvestment and
not to those for the education and maintenance of the infant.
(Ark.) Harper v. Smith, 93.
11. GUARDIAN'S SALE-Whether for Reinvestment or Main-
tenance. A guardian's sale of land to pay an encumbrance on another
tract owned by his ward is not a sale for reinvestment, but to protect
the estate, and is indirectly a sale for the education and maintenance
of the ward. (Ark.) Harper v. Smith, 93.
12. GUARDIAN'S SALE-Failure to Account for Proceeds.-A
guardian's sale is not invalidated by his failure to account for the
proceeds. (Ark.) Harper v. Smith, 93.
13. GUARDIAN'S SALE Crediting Account of Guardian.-A
guardian's sale is not rendered invalid because a part of the purchase
price is paid by crediting a debt due by the guardian which the pur-
chaser understands is for supplies furnished for the benefit of the
ward. (Ark.) Harper v. Smith, 93.
14. GUARDIAN'S SALE.—Where a Notice of a Guardian's Sale
is given in one of the two methods provided by statute, as when it is
given by publication but not by posting, there is a substantial compli
ance with the statutory provisions, and the sale is not voidable after
confirmation. (Ark.) Harper v. Smith, 93.
1. HABEAS CORPUS-Void or Irregular Sentence.-When a sen-
tence is merely excessive, erroneous or irregular, the writ of habeas
corpus has no place; but when the sentence for the particular of-
fense of which the defendant has been found guilty is void for want
of authority to pronounce that particular sentence, he may resort to
habeas corpus proceedings. (Miss.) Ex parte Burden, 511.
2. HABEAS CORPUS-Void or Excessive Sentence. The rule
that habeas corpus does not lie to correct a merely excessive sen-
tence does not apply where the court imposes a felony sentence for
a conviction for misdemeanor. Such a sentence is void, and may be
corrected on habeas corpus. (Miss.) Ex parte Burden, 511.
3. HABEAS CORPUS-Remanding Defendant for Proper Sen-
tence. Where the verdict is good for a misdemeanor, but the accused
has been sentenced for a felony, he should not, on habeas corpus, be
discharged, but should be remanded to the court for proper sentence.
(Miss.) Ex parte Burden, 511.
4. HABEAS CORPUS to Assail Commitment for Refusal of Wit
ness to Answer Questions.-A resort to a suit in habeas corpus by
a witness who has been committed to jail by order of the court of
common pleas for refusing to testify is a collateral attack upon the
order of commitment, and the plaintiff assumes the burden of show-
ing that it is void. (Ohio St.) McGorray v. Sutter, 715.
See Navigable Waters, 10.
1. HIGHWAYS-Operation of Traction Engine.-The daily opera-
tion of a traction engine, with from two to four wagons attached,
in a public highway, is an improper use, which may be forbidden by
the board of supervisors. (Miss.) Covington County v. Collins,
527.
2. HIGHWAYS-What Use Constitutes Nuisance. Whether or
not a particular use of a highway, such as the operation of a trae-
tion engine, constitutes a nuisance is not determinable alone by the
adjudication of the board of supervisors to that effect, for the ques
tion is one of law, but its judgment is very persuasive. (Miss)
Covington County v. Collins, 527.
3. HIGHWAYS -Consent or Objection to Unlawful Use.—If there
is a single person along a public highway who objects to its unlaw-
ful use by running a traction engine thereon, it is immaterial how
many other persons along the road petition to permit such use.
(Miss.) Covington County v. Collins, 527.
Highways, Public, horses, uses of which may frighten, 535–539.
new uses of, 534.
objects in calculated to frighten horses, 534-539.
Highways, Public, purposes for which may be used, 532–539.
steam-rollers in, when not lawful, 538.
steam, use in of vehicles propelled by, 533-535.
traction engines upon, when may be held to be nuisances, 537.
traction engines upon, when unlawful, 533–535.
uses of, what are proper, 532, 533.
vehicles and objects of unusual character upon, 533.
1. HOMESTEAD-Deed not Signed by Insane Wife-Estoppel.-
A father, without joining his insane wife, conveyed his homestead to
one son. The deed was reformed, so as to require the son to make
certain payments to the father during his life, and to make other
payments for the father after his death. The father abandoned the
homestead, and by action secured the reformation of the deed. The
son made the stipulated payments. Two years later the father made
a deed to another son for the consideration of love and affection and
one dollar. It is held that the record of the deed and other proceed-
ings, and possession of the land by plaintiff, gave notice or knowl-
edge of the rights of the son in possession; that the father was
estopped from asserting the invalidity of the first deed; and that
this estoppel operated to make that deed valid as against the son,
to whom the second deed had been executed. (Minn.) Lucy v.
Lucy, 502.
HOMESTEAD.—A Cotenant to Whom a Share of the Land has
been Allotted in Partition, subject to a charge for rents and profits
due from him to his co-owners, may acquire a homestead therein ex-
empt from execution sale for such charge. (Miss.) Woods V.
Bowles, 559.
3. HOMESTEAD, Sale of to Pay Decedent's Debts.-The rights
of heirs of one who dies in possession of a homestead have precedence
over his creditors, and a sale of the homestead for the payment of
the debts of the decedent is void. (Neb.) Mote v. Kleen, 654.
See Husband and Wife, 4.
Evidence-Threats and Confessions.
1. HOMICIDE-Character and Relative Strength of Parties.-
When there is little, if any, evidence respecting the character of the
deceased and the relative strength of the parties, the jury should not
be instructed on these phases of the case, but if such an instruction
is given it will not necessarily be ground for reversal. (Tex. Cr.)
Blocker v. State, 772.
2. HOMICIDE-Confession by Person not Accused. In a homi-
cide case, where the entire evidence is purely circumstantial, testi-
mony that a third person has declared that he killed the deceased is
admissible, his motive for the crime being as strong as that of the de-
fendant. (Tex. Cr.) Blocker v. State, 772.
HOMICIDE-Evidence of Threats.-Evidence is Admissible in
a homicide case that the defendant said, prior to the killing, that he
would kill the deceased if he did not stop going to see a certain
woman about whom there was rivalry between them. (Tex. Cr.)
Blocker v. State, 772.
4. HOMICIDE.-When There is Evidence that a Third Person had
equal opportunity and motive for killing the deceased, the entire case
being purely of circumstantial evidence, an instruction is not errone-
ous that "if you deem it as probable that A killed B as that de-
fendant killed him, you will acquit him, and unless you are satisfied
beyond a reasonable doubt that A did not kill B, you will acquit
him." (Tex. Cr.) Blocker v. State, 772.
5. A DYING DECLARATION is Subject to Impeachment by Any
Competent Testimony which impairs its value. (Miss.) Gambreli v.
State, 549.
6. A DYING DECLARATION may be Discredited by Any Testi-
mony which would be permissible to discredit the testimony of the
declarant if he were in court testifying, (Miss.) Gambrell v.
State, 549.
7. DYING DECLARATION-Impeachment by Showing Disbelief
in God.-A dying declaration may be discredited by showing that the
declarant was a nonbeliever in God; and the testimony offered for
that purpose need not be confined to the time when the declaration
was made, but may relate to a time one year before the death. (Miss.)
Gambrell v. State, 549.
8. DYING DECLARATIONS Voluntary Character of a Question
for Jury. When a woman suffering intense pain and believing that
she will die is told by physicians that they will do nothing for her
unless she reveals the secret of the ailment, which apparently is
an abortion, her statements as to who operated on her have at least
so far the appearance of being involuntary as to raise an issue on
that point which should be submitted to the jury. (Tex. Cr.) Jack-
son v. State, 792.
9. DYING DECLARATIONS Voluntary Character of a Question
for Jury. Where there is an issue in regard to whether a dying dee-
laration was voluntary, the court should submit the matter as an
issue of fact to be determined by the jury, and if the declaration
is found to have been involuntary it should be disregarded. (Tex.
Cr.) Jackson v. State, 792.
HUSBAND AND WIFE Her Liability for Acts of Her Hus-
band as Her Agent.-If a husband acting as the agent of his wife
converts goods, and she knows of and approves his act, and con-
ceals her liability as an unconcealed principal, she is liable for such
conversion in an action brought within six years after the plaintiff
obtains knowledge that her husband acted as such agent. (Mass.)
Leslie v. Jaquith, 395.
2. MARRIED WOMEN, Effect of Constitutional and Statutory
Provisions-The effect of the constitution and statutes of Florida
respecting a married woman is not to place her in the position of a
feme sole, but, on the contrary, her common-law status remains, except
to the extent it has been modified by the provisions of such con-
stitution and statutes. (Fla.) Graham v. Tucker, 124.
3. HUSBAND AND WIFE-Contract and Property Rights.-The
policy of permitting husband and wife to own property and to trans-
act business independently of each other has been expanded in Kan-
sas by legislation until the property rights of married people are as
separate and distinct as if they were unmarried. They transact
business with each other as freely as with other people. (Kan.)
State v. Shaw, 298.
Property Rights-Transfers by Husband.
4. DEED BY HUSBAND in Fraud of Marital Rights of Wife.-
If a man induces his wife to join in a deed of their homestead by
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