ment may be entered for the penalty, with
the residue of the damages so found, and
costs. Ibid. pl. 2.

16. A stipulation, in a Bond or Deed of Trust,

1.

2.

3.

that, upon the debtor's failing at any time to 1.
pay the annual interest, the principal sum,
(which otherwise would not be payable until
a distant day) shall be considered due, is in
the nature of a penalty, against which it is
the province of a Court of Equity to relieve.
Mayo v. Judah, pl. 1. p. 495.

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 last 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's
Administrators, pl. 1. p. 196.

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. 193.

Hol-

4. Where the extent of the plaintiff's right under
a covenant depends, in part, upon extrinsic
testimony, the Court ought not to instruct the
Jury," that if, upon the said evidence they
shall be of opinion that certain facts are
established, then the defendant has broken his
covenant as charged in the declaration;" for
it is not competent to the Court to say
whether such facts are sufficient, or not, to
warrant such conclusion, unless the sufficiency
thereof had been duly submitted to its judg-
ment by a demurrer to the evidence.
lingsworth v. Dunbar, pl. 1. p. 199.
The breach of covenant charged in the
declaration, being that, during a specified
period of time, the defendant deprived the
plaintiff of the water necessary for his Mill,
by diverting it therefrom, and suffering it to
be diverted by others; the plaintiff is not
limited, in proving acts committed by the
defendant or other persons, to the period
stated in the declaration, but may prove
previous acts, in consequence of which, the
injury was sustained during that time. Ibid. 1.
pl. 2.

5.

1.

2.

C.

CAPTION.

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 inferred
that the answers of those persons were
noticed by the Court. Pickell and Wife v.
Chillon, pl. 3. p. 467.

CASE AGREED.

A son being possessed of a life estate in
certain slaves, with a contingent limitation,
to his mother and her heirs, upon his dying
without issue living at the time of his
death; the mother died in his life time,
leaving him her only heir; and he after-
wards died, without such issue: the ad.
ministrator of the mother brought an action
of detinue for the slaves, against a person
who was one of the co-heirs and distributees,
and also one of the administrators of the
son, (but not charged as such in the declara-
tim,) and obtained a Judgment, upon a case
agreed, by which the parties rested the
decision of the cause upon certain specified
points of law; viz. whether the limitation
to the mother was legal and valid; and
whether, (notwithstanding her death in the
life time of the son, who was her only heir,)
the slaves, so limited to her on his death,
became vested in her administrator: it was
decided that such case agreed did not
abandon or relinquish the title of the
administrators of the son to the slaves in
question; but the recovery was bad in
subordination to their ulterior right, arising
from the circumstances, that all the debts of
the mother had been paid by the son in his
life time; that he died greatly indebted;
and that the slaves in question were necessa
ry to pay his debts; which circumstances,
(though mentioned in the case agreed,)
were not included in the points thereby
submitted. Royall's Administrators v. Roy-
all's Administrator, pl. 1. p. 82.

CHARGE.

See Gaming Debts; and Carter's Executors
v. Cutting and Wife, pl. 5. p. 223.
See Legacies; and Matthews Executor of
Garnell v. Noel, pl. 1. p. 460.

CHANCERY.

After issue joined, and the cause set for
hearing, the defendant in Chancery may be

See Deed; and Lightfoot's ex'ors. & others v.
Colgin & Wife, pl. 1. p. 42.

2. Fattening hogs are not comprehended in a
bequest to one of the testator's children, of
the stock belonging to the place whereon he
lived. Kendall's ex'or. &c. v. Kendall &c.
pl. 3. p. 272.

3.

4.

1.

2.

2.

3.

A Bill in Equity in behalf of persons, suing
as "children" of a deceased residuary legatee
for his share of the residuum, cannot be sus-
tained; it should appear that the plaintiffs
are the administrators, or other legal repre-
sentatives of such legatee. Hay's ex'or. and 1.
others v. Hays & others, pl. 1. p. 418.

To effect the manifest intention of a Testator,
the word "children" may be taken as syno-
nymous with " issue." In this case, therefore,
a devise of slaves to a married woman, **to
her and her children forever," was construed
to her and her issue; the Court being of
opinion that the word "children," was not
intended to denote the devisee, or devisees,
who never were to take, nor to reduce the 1.
portion of the interest of the mother in and
to the slaves before given to her in the same
clause, but to declare the duration of her
interest therein. Merrymans v. Merryman &
others, pl. 1. p. 440.

CITIZENS.

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.

1.

1.

Quare, whether the provisions of that section
be authorized by the Constitution of the
United States? Ibid. pl. 3.

CLERKS.

The Clerk of this Court being required, by
an Act of Assembly enacted since he came
into office, to give hond 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
Harrison Dance's case, pl. 1. p. 349.
Quare, whether the Clerks of the Chancery
District Courts of Richmond, Williamsburg
and Staunton, and the Clerks of the Court
of Appeals and General Court were constitu-
tionally bound to give bond and security for
performance or their official duties; being
required to do so by an Act of Assembly
enacted after they came into office? Ibid. pl. 2.
See Decree; and Pickett & wife v. Chilton,
pl. 2. p. 467.

case.

CODICIL.

The addition of a Codicil to a Will is not
sufficient to operate as a devise of lands pur-
chased by the Testator between the date of
the Will and the date of the Codicil; there
being no words in the Codicil indicating such
to be the intention of the Testator. Kendall's
exor. &c. v. Kendall & others, pl. 1. p. 272.

COLLEGE.

The Trustees of a College being incorporated
may sue by their corporate title without set-
ting out their individual names. Legrand v.
Hampden Sidney College, pl. 2. p. 324.

COMMISSIONS.

Although, under peculiar circumstances, an
allowance may be made to executors, in ad-
dition to the Commissions given to attornies
for collecting debts confided to them,
such addition of commission ought not, in
general, to be allowed where the debtors
reside in or near the neighbourhood of the
Executors, who consequently might collect
the monies themselves. Carter's ex'ors. v.
Culting and wife, pl. 9. p. 224.

COMMISSIONERS IN CHANCERY.

See Mortgage; and Wood's cx'or. & Miller v.
Hudson & others, pl. 1. & 2. p. 423.

COMPENSATION.

1. A purchaser of land, suing for breach of a
contract to make a good title may with pro-
priety come into a Court of Equity for pe
cuniary compensation, instead of proceeding
at law in the first instance, if the vendor has
conveyed away his property in trust whereby
there might be a difficulty in obtaining satis
faction of his judgment when recovered, the
vendor or his lawful representative, together 4.
with the trustees and cestuys que trusts being
made defendants to the bill. Sims's adm'r.
v. Lewis's ex'ors. & others. pl. 1 P 29.
See Equity; and Crenshaw v. Smith and
others, pl. 1. p. 415.

2.

1.

1.

2.

3.

1.

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 1.
failed, but before he failed paid $500; and
whereas the said obligor has instituted a suit
against said J. W. for the recovery of said
money; now, if the said obligor shall pay
the whole sum so lent, if it can be recovered
from the said J. W., or, in case it cannot be
wholly recovered, will lose the one half of
that sum which cannot be recovered, then
the above obligation shall be void, otherwise
to 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 1.
money in the said condition mentioned, or
any part thereof, and that he paid to the
obligee one half of the sum which could not
be so recovered, and the farther sum of five
hundred dollars," is a good and sufficient plea
in bar to an action upon the bond; without
any farther averment that the said ohligor
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
adm'r. pl. 1. p. 172.

A father having undertaken, by written
agreement, as surety, for the payment of a
gaming debt of his son; and, afterwards, by
his Will, (reciting that he had so become
surety,) having devised to his son certain
real estate charged with the payment of that
debt; such charge is not a Condition prece
dent binding the son or his representatives to
pay it; but he and they shall hold the estate
discharged thereof. Carter's ex'ors. v. Cul-
ting & Wife, pl. 5. p. 223.

In debt on a Bond, with Condition to perform
an award, to be made by certain arbitrators;

1.

1.

2.

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 be
neglect to do this, and reply generally, Judg
ment onght to be arrested after a verdie in
his favour. Green v Bailey. pl. 1 p 246.
If an agreement for sale of land be made
subject to a Condition, that the price thereof
shall afterwards be ascertained by the parties;
and one of the parties die, without agreeing
upon the price, such agreement is too in-
complete and uncertain to be carried into
execution by a Court of Equity. Graham v.
Call ex'or. of Means, pl. 1. p. 396.

CONSIDERATION.

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.

CONSTITUTION OF VIRGINIA.

See Act of Assembly; and Harrison Dence's
case, pl. 2. p. 349.

CONSTRUCTION OF CONTRACTS.

The general usage and understanding of the
people of this country in relation to the sub-
ject, is an in portant circumstance to be con-
sidered in the construction of a contract.
Harris v. Nicholas, pl 3. p. 483.

CONSTRUCTION OF LAWS.

See Mortgage; and Wood's Ex'or. & Miller
v. Hudson and others, pl 1 p. 423.

CONTRIBUTION.

CONTRACT.

3.

4.

5.

6.

The first endorser of a note in point of time, 3.
is not of course first responsible Chalmers,
Jmes & Co. v. M Murdo, pl. 2. p. 25.
If the payee of a note write his name over
that of a person, who endorsed it in blank.
bu refused to do so except upon the ground
of the responsibility of the payee as first
endorser, he thereby makes himself responsi- 4.
ble, as such, in point of contract Ibid. pl 3.
It seems that payment of the purchase money
is not sufficient part performance of a verbal
Contract for land, to take it out of the
statute of frauds. Jackson's assignees. v. Cut-
right & Clark. pl. 3. p_308.

See Construction of Contracts; and Harris
v Nicholas, pl 3 p 483.

5.

6.

7. Personal and even transitory and fluctuating
property may be made the subject of a lion,
at the pleasure of the contracting parties, but,
generally, explicit words should be used to
effect that purpose, where such lien is not 1.
raised by operation of law or Equity.
Williams v Price, pl. 8. p. 507.

8.

9.

It seems just, however, that the property
purchased should be considered liable for the 2.
purchase money, especially, in a case in
which a personal exemption of the purchaser
has been stipulated, and where the parties
themselves, by their subsequent acts, appear
to have expounded the contract in that sense.
Ibid. pl. 9.

If personal property consisting of perishable
articles, provisions, raw materials for manu-
facture, implements necessary for a furnace,
&c he pledged, together with the furnace
and land, for payment of the purchase mo
ney; the lien is not to be construed so strictly
as to tie up the property from use, nor that
even the same kind and amount of property
shall be forthcoming in future; without a
stipulation to that effect: but the purchaser
is bound to make good only such waste
thereof as shall have arisen from his fraud,
wilful default or misconduct, and to give up
what remains on hand when he surrenders
the property in satisfaction of the debt. Ibid.
pl. io.

CONVEYANCE.

1. See Jurisdiction; and Taylor v. Ficklin, pl.
1. p. 25.

2.

1.

1.

1.

A Deed of bargain and sale, admitted to
record on the acknowledgement of the bar 2.
gainer in Court without any actual delivery
thereof to the bargainee, was determined to
be good in law as a Deed delivered; the
bargainee having entered upon the land im-
mediately after the purchase; having paid
a part of the purchase money; retained
possession according to the bargain; and,
upon being informed of the Deed, approved
thereof, and claimed title to the land thereby
intended to be conveyed. Commonwealth v.
Selden & Sedden, pl. 2. p. 160.

The finding of an inquest of escheat in favor
of the Commonwealth will not take away the
title of a purchaser claiming by a Deed of
bargain and sale executed and recorded
before the inquest was sealed, though with-
out the knowledge of the bargainee until
afterwards. Ibid. pl 3

See Executors & administrators; and Grant-
land v. Wight Ex'or. &c. pl. 2. p. 295.

A vendor of land, by executing a conveyance
and taking bond and security for the pur-
chase money, discharges the land from his
equitable lien. even while it continues the
property of the purchaser. Wilson and others
v. Graham's Ex'ors &c pl 1 p 297.
See Derise; and Hundley v. Lyons, pl. 4.
p. 342.

Where the extent of the plaintiff's right,
under a covenant, depends, in part, upon ex-
trinsic testimony; the Court ought not to
instruct the Jury "that, if upon the said
evidence they shall be of opinion that certain
facts are established, then the defendant has
broken his covenant as charged in the declara-
tion;" for it is not competent for the Court
to say whether such facts are sufficient or
not, to warrant such conclusion. unless the
sufficiency thereof had been duly submitted
to its Judgment by a demurrer to the evidence.
Hollingsworth v Dunbar. pl. 1. p 199.
The breach of covenant charged in the
declaration being that, during a specific
period of time, the defendant deprived the
plaintiff of the water necessary for his mill,
by diverting it therefrom, and suffering it to
be diverted by others; the plaintiff is not
limited, in proving acts committed by the
defendant or other persons, to the period
stated in the declaration; but may prove
previous acts, in consequence of which the
injury was sustained during that time. Ibid.
pl. 2.

12

3.

28.

6.

7.

8.

2. See Deed; and Scott and Wife and others v.
Gibbon and Co. and others, pl. 1. p. 86.
Five years peaceable and uninterrupted pos-
session of slaves, under a loan not evidenced
by deed duly recorded, vests a title in the
loanee, which enures in favour of his credi-
tors, and cannot be devested, as to them, by 9.
bis returning the same to the lender, after
the said five years have expired Garth's
Executors v. Barksdale, pl. 1. p. 101.
See Agreement; and Williamson v. Gordon's
Executors, pl. I P. 252.

justification, may be proven in mitigation of
damages. Cheatwood v. Mayo, pl. 1. p.

16.

A general verdict in assumpsit, assessing
entire damages on several counts (none of
which are defective,) is not erroneous.
Buster v. Ruffner, pl. 2. p. 27.

See Equity; and Sims's Administrater v.
Lewis's Executor and others, pl. I. p. 29.
See Execution; and Carrington v. Anderson,
pl. 1. p. 32.

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 Appeals, notwithstanding it
appears from the record that the right to
erect the mill was drawn in question.
Skipwith v. Young, pl. 1. p. 276.

See Judgment; and Stoners Executor of
Bragg v. Smith's Executor, pl. 2. and 3. p.
402.

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 assess
ed and the costs; but for the penalty and
damages, if not exceeding those in the Writ
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,
Judgment may be entered for the penalty,
with the residue of the damages so found
and costs. Ibid. pl. 2.

See Election; and Williams v. Price, pl. II.
p. 507.

DEBTS.

See Evidence; and Dunbar v. Beale, pl. 2.
P. 24.

4.

1.

See Immaterial Issue; and Beatty v. Smith
and others, pl. 1. p. 39.

See Lands; and Carter's Executor v. Cutting
and Wife, pl. 6. p. 223.

P. 10.

DECLARATION.

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 agrement.
Moseley v. Jones, pl. 1. p. 23.