against the Commonwealth, claiming the
money for which the lands were sold; the
Testator having died without any lawful
heir, and his personal estate being sufficient
to pay his debts. Commonwealth v. Martin's
Executors and devisees, p. 117.
A Testator bequeathed to his brothers
David and James who were aliens,) "to
be equally divided between them, the money
arising from the sale of his land and other
property, and from the debts due to him
at the time of his death; and, as they
resided in Great Britain, it was his Will
that his Executors make remittances to
them, in Bills of Exchange, or in any other
mode, as soon as they could " This was
adjudged to be a good devise; so that a
sale and conveyance by the Executors was
effectual to the purchaser; and that the
land did not escheat to the Commonwealth
in consequence of the Testator's dying
without heirs. Commonwealth v. Selden and
Seddon. pl 1. p 160.
The 12th section of the Act of Congress,
passed September 24th, 1789, entitled, "An
Act to establish the Judicial Courts of the
United States," does not extend to cases
in which citizens are joint defendants with
aliens, or with citizens of other states, and
have also essential interests in the cause
which may be effected by a removal into
the Federal Court. Williams v. Price, pl.
1. p. 507.
Quare, whether that section extends to any
case, in which citizens are joint defendants
with aliens, or with citizens of other states.
Ibid pl. 2
Quare, whether the provisions of that section
be authorized by the Constitution of the
United States. Ibid. pl. 3.
After issue joined, and the cause set for
hearing, the defendant in Chancery may be
permitted, for good cause shewn, to amend
his answer, and to plead the statutes of frauds
and limitations. Jackson's assignees v. Cut-
right and Clark, pl p. 308.
A mistake of the defendant's counsel, in ad-
vising him that he could avail himself of the
defence without pleading, is sufficient ground
for leave to tile the pleas in addition to the
answer. Ibid pl. 2.
3. If two writs of scire facias be successively
issued, the returns on which are both defective;
and the defendant, after pleading specially,
obtain leave to withdraw his plea as having
been improvidently pleaded, the Court ought
not thereupon to permit the Sheriff to amend
both his returns, but only that on his first
writ; quashing the second writ, and remand-
ing the cause to the rules for farther pro-
ceedings. Lee & Fitzhugh v. Chillon, pl. 2.
p. 407.
The Clerk's stating in the transcript of the
Record, that certain Answers, which are
filed, and copied in such transcript, were not
noticed by the Court, is not to be relied upon
by the Appellate Court, if the contrary may
be inferred from the decree itself. Pickett
and Wife v Chilton, pl. 2. p. 467.
If the caption of the Decree names as
defendants to the cause, certain persons
whose answers are filed; and the Decree
states that the cause was heard upon the
Bill, Answers and Exhibits; it may be in-
ferred that the Answers of those persons were
noticed by the Court. Ibid pl 3.
The only effect of the omission of a Replica-
tion to an Answer, is that all the facts stated
in such Answer are admitted. Ibid. pl. 4.
ANSWER IN CHANCERY.
An evasive Answer (though not excepted to
as such) outweighed by the testimony of one
witness and circumstances. Wilkins v.
Woodfin adm'r. of Pearce, pl 2. p. 183.
See Equity; and Scott and Wife &c. v. Gibbon
& Co., &c., pl. 2. p. 86.
In an action on the case for consequential
damages occasioned by the erection of a mill,
if the damages recovered be less than one
hundred dollars, the defendant cannot appeal
to the Court of Appeais; notwithstanding
it appears from the Record that the right to
erect the mill was drawn in question. Skip-
with v. Young, pl. 1. p 276
A High Sheriff, against whom a Judgment is
rendered for the default or misconduct of his
deputy, is entitled to recover of such deputy,
not only the amount of the original Judgment,
but all additions thereto arising from coroners'
commissions included in a forthcoming bond,
costs of a Judgment on that bond, and costs
and damages on appeals, or writs of superse-
deas, until its final affirmance by the Court
of Appeals. Stowers Ex'or. of Bragg v.
Smith's Ex'or. pl. 2. p 401.
The Clerk's stating, in the transcript of the
Record, that certain Answers, which are
filed, and copied in such transcript. were not
noticed by the Court, is not to be relied upon
by the Appellate Court, if the contrary may
be inferred from the Decree itself. Pickett
and Wife v. Chilton, pl. 2, p. 467.
APPEALS, (COURT OF.)
1. The Act of January 10th, 1815, on the sub-
ject of writs of Habeas Corpus does not au-
thorize the issuing of a Writ of Error by the
Court of Appeals to a Judgment discharging
from custody a person confined by sentence
of a Court Martial for failing to pay a fine
imposed on him for not appearing at the place
of rendezvous, and not marching in obedience
to a requisition of militia; for, in such case,
there is no discharge, by the Judgment, of a
person from the service of this State or of the
United States. Attorney General v. Fenton
and Shepherd, pl. 1 p. 292.
The Clerk of this Court being required, by
an Act of Assembly, enacted since he came
into office, to give bond and security for per-
formance of his official duty; the Court con.
sidered it not proper to dispense with, or
sanction the non execution of such bond, or
to pronounce any opinion as to the conse-
quences of his failing to do so; but left it to
him to execute the same or not, at his own
peril, to be adjudged of, in case of failure, by
a Court having competent jurisdiction of the
case. Harrison Dance's Case, pl. 1 p. 349.
A submission to Arbitration held a waiver
of objections to previous proceedings in the
cause. Ligon v. Ford, pl. 1. p. 10.
An action of Crim. Con. being referred to
Arbitration by Rule of Court, if the Arbi-
trators refuse to hear testimony offered by
the defendant, impeaching the credit of the
plaintiff's witnesses, or touching the deport-
ment of the plaintiff's wife before her alleged
seduction; this is such misconduct as vitiates 4.
their award; and the Court ought not to
decline heating proof of such misconduct.
Ibid pl. 2
See Equity; and Dust v. Conrod and others,
pl. 1. p 411
See Authority; and Ibid. pl. 4.
See Award; and Manlove v. Thrift, pl. 1. p.
493.
ARREST OF JUDGMENT.
See Assumpsit; and Dow v. Adams's adm'rs.
pl. I. p. 21.
In an action of Assumpsit in the Superior
Court of a County, the Declaration's laying 2.
the venue in a different County, and omitting
to state that the cause of action arose within
jurisdiction of the Court, is not error sufficient
in arrest of judgment. Buster v. Ruffner,
In debt on a Bond, with condition to perform
an Award to be made by certain Arbitrators;
the condition being made a part of the record
by Oyer, and the defendant having pleaded
"conditions performed;" the plaintiff may
set forth the Award, and aver a breach of
the condition, by a special replication; not
having done so in his declaration : but, if he
neglect to do this, and reply generally, judg-
ment ought to be arrested after a verdict in
his favour. Green v. Bailey, pl. 1. p. 246.
In such case the proceedings, subsequent to
the plea, should be set aside, and a Repleader
awarded. Ibid. pl. 2. p. 246.
If, by direction of the plaintiff, the writ be
served on one only of two partners in trade,
when the declaration shews that the plaintiff
knew the names of both, and he get a verdict,
upon the plea of non-assumpsit, pleaded by
the partner, on whom the writ was served;
judgment ought to be arrested. Shields v.
Oney, pl. 1. p. 550.
See Account; and Scott & Wife v. Halliday
and Hinton, pl. 1. p. 103.
See Legatees; and Sampson v. Payne's Ex'or.
and Legatees, pl. 1. p. 176.
A loan of slaves, though not declared by
deed in writing duly recorded, and therefore
void as to creditors, the loanee having con-
tinued in possession five years without such
demand as would bar the right, is neverthe-
less effectual between the parties and their
representatives. If, therefore, the loanee die
in possession of such slaves, they are not to
be considered assets, belonging to his estate,
nor can be recovered as such, being liable to
his creditors, so far as their claims remain un-
satisfied by the Assets in the bands of bis ex-
ecutor or administrator, but no farther.
Boyd and Swepson, and others v. Stainback
and others pl. 2. p. 305.
In such case, if the Assets be deficient, a
Court of Equity will give the creditors re-
lief, on a Bill on their behalf against the
lender and the Executor or Administrator of
the loanee, making the Assets liable in the
first place so far as they extend; after which,
it will allow the lender a limited time to
make good the deficiency, and, in default
thereof, direct a sale of the slaves. Ibid.
pl. 3.
See Equity; and Taylor v. Ficklin, pl. 1. 2.
3. p 25.
A Bond to stay Execution was assigned for
value received, without notice to the assignee
of any Equity against it, and after dissolution
of an injunction to the judgment. The
security in said Bond, who was also Attorney
in fact for the principal obligor, paid it off,
without Execution and without any particular
instruction to do so: after which, the Chan-
cellor reinstated the injunction. It was held
that such payment by the Attorney in fact
was a waiver of the Equity in behalf of the
principal, who, therefore, notwithstanding
the reinstatement of the injunction, was not
entitled to recover back the money paid.
Medley v. Jones, pl. 1. p. 98.
In debt by the Assignee of a Bond, it is not 5.
a sufficient plea, that, before notice of the as-
signment, the effects of the assignor were
attached in the defendant's hands, and a
decree entered that he should pay the debt
to the attaching creditors, &c.; and that,
accordingly, he had made such payment, it
appearing, by the pleadings, that the Bond
was assigned before the attachment was insti-
tuled, and suit brought upon it by the assignee
before the payment made. Wilson v. Da- 1.
visson, pl. 1. p. 178.
In debt on a Bond in behalf of the survivor of
two joint assignees, a declaration charging
that the defendant has not paid the debt to
the obligee or to the plaintiff, without aver-
ring also that he did not pay it to the other
assignee in his life time, is bad on general
demurrer. Nicholson v. Dixon's heir, pl. 1.
P. 198.
See Fraud; and Robertson & Co. v. Williams
and Smith, pl. 1. p. 331.
The bolder of a Bill of Exchange, with
several endorsements in blank, has a right
to strike out the names of the endorsers sub-
sequent to the first, and to write over the
name of the first endorser an assignment to
himself; or the Bill, without such assignment
will be considered as his property, by his
having it in his power to make it. Ritchie
& Wales v. Moore, pl. 1. p. 388
A Bill of Exchange does not lose its negotia-
tiable character by being protested; but,
after protest, may be assigned, or transferred
without assignment. Ibid. pl 2.
In an action by the assignee against the
maker of a promissory note, the defendant
cannot set off against it a Bill of Exchange for
which the assignor is responsible, unless it
appear that such Bill was his property before
he received notice of the assignment. Ibid. 1.
pl. 3.
if the assignee of a mortgage, having ob-
tained a decree of foreclosure and sale, be-
come himself the highest bidder; but, in
consideration of a sum of money in hand,
and a promise of the assignor to pay, in a
short time, the balance of the debt for which
the assignment was made, he agree to hold
the property as security tor said debt, but in
trust for the assignor; a Court of Equity will
compel him to give up and recover the
property, upon the assignor's paying him the 2.
balance due on the Bond. with the costs of
the foreclosure and sale, deducting therefrom
not only the actual profits he received while
he held the property, but such profits as, but
for his wilful default, he might have receiv-
ed, and also the amount of any waste or di
lapidations committed by him, or suffered
by his neglect. Southgate v. Taylor, pl. 1.
p. 420.
The assignee of a Bond may recover of the
assignor, after suing the obligor, and obtain-
ing a Judgment, and Execution with a return
of nulla bona; notwithstanding his Attorney
directed that appearance bail be not required
of the obligor. "Harrison's Adm'x. v. Raine's
Adm'x. pl. 1 p. 456.
See Delivery of goods sold, No. 1 and Jones
v. Stevenson, pl 1. p. 1.
See Pleading, No. 2: and Ibid pl. 2.
In the action of assumpsit, if no consideration
for the promise be laid in the declaration,
Judgment ought to be arrested, notwithstand-
ing it be founded on a written agreement.
Moseley v. Jones, p. 23.
See Account, No. 1; and Dunbar v. Beale,
pl. 2. p. 24.
See Venue, No. 1; and Buster v. Ruffner,
pl. 1. p. 27.
A general verdict in Assumpsit, assessing en-
tire damages, on several Counts, none of
which are defective, is not erroneous. Ibid.
pl. 2.
See Answer; and Wilkins v. Woodfin adm'r.
of Pearce, pl. 1. p. 183.
In assumpsit, if there be several Counts in
the declaration, the defendant should be
charged, as having "failed to pay the several
sums of money aforesaid, and every part
thereof." If this be not done, but the breach
charged at the end of the Count be, "that
he hath not paid the said sum of money;"
and it appear, upon a demurrer to evidence,
that all the evidence adduced by the plaintiff
applies only to the first Count, Judgment
ought to be given for the defendant. Ellis
v. Turner Adm'rs. pl. 1. p. 196.
In debt by the assignee of a Bond, it is not a
sufficient plea that, before notice of the assign-
ment, the effects of the assignor were attach-
ed in the defendant's hands, and a decree
entered that he should pay the debt to the
attaching creditor, &c; and that accordingly,
he had made such payment; it appearing,
by the pleadings, that the Bond was assigned
before the attachment was instituted, and suit
brought upon it, by the assignee, before the
payment made. Wilson v. Davisson, pl. 1.
P. 178.
An Attachment ought not be awarded against
a party for refusing obedience to a decree,
which as yet remains general and uncertain,
and the extent of which as it relates to him,
See Award; and Green v. Bailey, pl. 1. p.
246.
1. See Evidence; and Ligon v. Ford, pl. 2. p. 10.
In debt on a Bond, with condition to perform
an Award to be made by certain Arbitrators;
the condition being made a part of the Record
by Oyer, and the defendant having pleaded
"condition performed," the plaintiff may set
forth the Award, and aver a breach of the
condition by a special Replication; not having
done so in his declaration but, if he neglect
to do this, and reply generally, Judgment
ought to be arrested after a verdict in his
favour. Green v. Builey. pl. 1. p 246.
See Equity, and Dust v. Conrod & others.
pl. 1 p. 411.
If, pending a suit, the parties, by an order of
Court, refer the matter in controversy to
Arbitrators, whose Award is to be made the
Judgment of the Court, and afterwards, by 1.
an agreement under seal, appoint a substitute
for one of them; agreeing that an Award,
to be made by the remaining Referees and
such substitute, shall be entered as the Judg
ment of the Court; suen Award may be
entered without any previous order of Court
confirming the appointment of such substitute.
Manlove v. Thrift, pl. 1. p. 493.
the same is not a sufficient return of nihil :
but it should be stated also,that he has nothing
in the bailiwick by which he could be sum-
moned. Lee & Fitzhugh v Chillon, pi. l.
407
P:
The assignee of a bond may recover of the
assignor, after suing the obligor, and obtain-
ing a Judgment, and Execution with a return
of nulla bona, notwithstanding his attorney
directed that appearance bail be not required
of the obligor Harrison's adm`r. v. Raine's
adm'x. pl. 1. p. 456.
See Assumpsit ; and Jones v. Stevenson, pl. 1.
p. 1.
See Bond; and Cooke v. Graham's adm'r. pl.
1. p. 172.
BARGAIN AND SALE.
A Deed of Bargain and Sale, admitted to
record on the acknowledgment of the Bar.
gainor in Court, without any actual delivery
thereof to the Bargainer, was determined to
be good in law as a Deed delivered; the
Bargainee having entered upon the land
immediately after the purchase; having paid
a part of the purchase money; retained pos-
session according to the bargain, and, upon
being informed of the Deed, approved there-
of, and claimed title to the land thereby in-
tended to be conveyed. Commonwealth v.
Selden & Seddon, pl. 2. p. 117.
The finding of an inquest of Escheat in favour
of the Commonwealth will not take away the
title of a purchaser claiming by a deed of
Bargain and Sale, legally executed and re-
corded before the inquest was sealed; though
without the knowledge of the Bargainee until
afterwards. Ibid. pl. 3.
BILL IN CHANCERY.
See Answer; and Scott and wife & others v.
Gibbon & Co & others, pl. 2. p. 86.
BILL OF EXCEPTIONS.
See Exceptions (Bill of ;) and Bream v.
Cooper's heirs, pl. 1 p. 7.
If the case made by a Bill of Exceptions be,
that the plaintiffs, suing for freedom, were
brought into the state subsequent to the year
1786, and that the defendaut asserts a claim
to them on the ground that the oath, pre-
scribed by the 4th section of the Act of 1792,
(IR C. ch 103,) was duly taken by him or
those under whom he claims the other
grounds of claim, authorized by the last
clause of the same section, (not being men-
tioned, )must be considered as excluded. Gar-
nett v Sam & Phillis, pi 1 p. 542.
BILLS OF EXCHANGE.
The holder of a Bill of Exchange, with se-
veral endorsements in blank, has a right to
strike out the names of the endorsers subse-
quent to the first, and to write over the name
of the first endorser an assignment to himself;
or the bill, without such assignment, will be
considered as his property, by his having it
in his power to make it. Ritchie and Wales 7.
v. Moore, pl. p. 388.
A Bill of Exchange does not lose its negotia-
ble character by being protested; but, after
protest, may be assigned, or transferred
without assignment. Ibid. p! 2.
In an action by the assignee against the
maker of a promissory note, the defendant
cannot set off against it a Bill of Exchange
for which the assignor is responsible, unless
it appear that such bill was his property
before he received notice of the assignment.
Ibid. pl. 3.
See Immaterial Issue; and Beatty v. Smith
and others. pl. 1 p 39.
See Assignee; and Medley v. Jones, pl. 1.
P. 98.
The condition of a Bond being, "whereas
the obligor did lend to J. W. $2500 of the
obligee's money, and the said J. W having
failed, but before he failed paid $500; and
whereas the said obligor hath instituted a suit
agrinst said J W for the recovery of said mo
ney; now if the said obligor shall pay the
whole sumiso lent, if it can be recovered, from
the said J. W., or, in case it cannot be wholly
recovered, will lose the one half that sum
which cannot be recovered, then the above
obligation shall be void, otherwise remain
in full force and virtue ;" a plea stating," that
he the said obligor could not recover of J. W.
or his endorser the sum of money in the said
eondition mentioned, or any part thereof, and
that he paid to the obligee one half of the
gum which could not be so recovered, and
the further sum of $500," is a good and
sufficient plea in bar to an action upon the
Bond; without any further averment, that
the said obligor had used due diligence in
prosecuting the suit against J. W.; and
without stating what measures he had taken
to recover the money, or who the endorser
was Cooke v. Graham's Administrator, pl.
172
p
In debt by the Assignee of a Bond, it is not
a sufficient plea that, before notice of the
assignment, the effects of the assignor were
attached in the defendant's hands, and a
decree entered that he should pay the debt
to the attaching creditor, &c.; and that,
accordingly, he had made such payment; it
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appearing, by the pleadings, that the bond
was assigned before the attachment was insti-
tuled, and suit brought upon it by the
Wilson
assignee, before the payment made.
v. Davison, pl. 1. p. 178.
To prevent circuity of action, and attain the
ends of natural justice, a Court of Equity
will completely indemnify one of the sureties
in a bond, by means of a lien on the property
of the principal obligor existing in favour of
the other surety; notwithstanding he has
himself relinquished a lien on the same
property originally created for his indemni-
fication And, for this purpose, the Court
will compel the creditor, (all the parties
interested being before it) to resort to that
property in the first place for satisfaction
of his debt West v. Belches, pl. 3. p. 17.
A Bond, for prosecuting a Writ of supersedeas,
being executed by a surety only, without any
principal obligor, is insufficient; and
supersedeas issued thereupon ought to be
quashed. Miller v. Blannerhasset, pl 1. p.
In debt on a Bond, in behalf of the survivor
of two joint assignees, a declaration charging
that the defendant has not paid the debt to
the obligee or to the plaintiff, without aver-
ring, also, that he did not pay it to the other
assignee in his life time, is bad on general
demurrer. Nicholson v. Dixon's Heir, pl.
I. p. 198.
See Executions; and Stone v. Pointer, pl.
1. p. 287.
A vendor of land, by executing a conveyance
and taking Bond and security for the purchase
money, discharges the land from his equitable
lien; even while it continues the property of
the purchaser. Wilson, &c. v. Graham's
Executors, &c. pl. 1. p. 297.
See Sureties; and Tinsley 7. Oliver's Ad-
ministrator and Heirs, pl. 1. p. 419.
The assignee of a Bond may recover of the
assignor, after suing the obligor, and obtain-
ing a Judgment, and Execution with a return
of nulla bona; notwithstanding his attorney
directed that appearance bail be not required
of the obligor. Harrison's Administrator v.
Raines's Administratrix, pl. 1. p. 456.
Where the principal and interest due on a
Bond amount to more than the penalty, and
damages are found by a verdict; Judgment
ought not to be entered for the penalty and
costs, to be discharged by the principal and
interest, with the damages so assessed, and
the costs; but for the penalty and damages,
(if not exceeding those laid in the Writ.)
and the costs. Tennant's Executor v. Gray,
pl. 1. p. 494.
But if the damages found by the Jury exceed
those in the Writ, a new trial ought to be
granted, unless the plaintiff will release the
excess of damages; if which be done, Judg.
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