obligor, paid it off, without execution, and
without any particular instruction to do so:
after which, the chancellor re-instated 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 re-instatement
of the injunction, was not entitled to recover
back the money paid. Medley v. Jones, pl.
p. 98.

1.

12. See Hire; Ibid. pl. 2. p. 98.
13. If a fieri facias against the goods of a
Testator be levied on slaves, which, by his
Will, were specifically bequeathed, and after
his death, were allotted to the legatee by
the executor, who thereupon held them, and
hired them out as guardian for such legatee;
a Court of Equity ought by injunction, to
stop the sale, until an account of the assets
remaining unadministered shall be taken,
and, upon such account, to decree that the
creditor shall be satisfied out of those assets;
or (if there be a deficiency) out of the residue
of the estate of which the Testator died
possessed; having regard to the rights of the
several legatees under the will. Scott and
Wife v. Halliday and Hinton, pl. 1. p. 103.
14. See Partition, No.'s 2. 3; and Carter's
Executor v. Carter and others, pl. 2. and 3.
P. 108.
15. See Execution; and Sampson v. Bryce, pl.
2. p. 175.
16. A creditor having obtained a judgment
against an executor as such, and sued out a
fi. fa. de bonis testatoris, which proved
ineffectual, may either resort to his action
at law to establish a devastavit, or file a bill
in equity against the executor and legatees,
for an account of assets, and proportional
contribution to pay the debt. Sampson v.
Payne's Executor and Legatees, pl. I. p.

176.
17. In such case, if there be a dispute between
the executor and legatees, whether, under
the circumstances, he ought not to pay the
debt without any contribution from them;
and if some of them be not made parties; the
Court may with propriety dismiss the bill
as to the legatees; but if it appear that the
executor has delivered over to them property
of the Testator, which would have been
sufficient to pay the debt, he ought to be
decreed to pay it de bonis propriis, and left
to his remedy against them. Ibid. p. 2.
18. A purchase by an executor or administrator

of any part of the estate of his Testator, or
intestate, when other persons were deterred
from bidding in consequence of doubts
concerning the title suggested by himself,
whereby he obtained the property for less
than its value, ought to be annulled by a
Court of Equity. Hudson and others v.
Hudson's Administrator, pl. 3. p. 180.

19.

20.

21.

22.

23.

24.

25.

26.

27.

A Court of Equity has jurisdiction to decree
the repayment of money paid by mistake;
notwithstanding the plaintiff's remedy by
assumpsit for money had and received.
Wilkins v. Woodfin Administrator of Pearce,
pl. 1. p. 185.

An evasive answer, (though not excepted to
as such) outweighed by the testimony of one
witness and circumstances. Ibid. pl. 2.
Where it appears that, at the time of
entering into a contract for sale of a tract of
land, there was a misunderstanding, between
the parties, as to the identity of the land to
which the contract related, a Court of
Equity, in its discretion, ought not to
interfere by decreeing a specific performance.
Graham v. Hendren, pl. 1. p. 185.

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 in-
terested being before it,) to resort to that
property, in the first place, for satisfaction
of his debt. West v. Belches, pl. 3. p. 187.
It is no objection to a decree that it is
nominally in favour of one defendant against
another, if it be substantially in favour of the
complainant. Ibid. pl. 4.

A Bill for relief against a writing purporting
an acknowledgment of a gift of property by
the complainant to the defendant on the
ground of its having been obtained by fraud,
presents a proper case for equitable jurisdic-
tion, though a suit at law, founded upon
such writing might be defeated without
coming into equity. Johnson v. Hendley,
pl. 1. p. 219.

When a commissioner is stating accounts
between executors and the estate of their
Testator, if one of them who had for
collection the evidences of debts due the
estate, which might have been collected by
him, be dead; his representative cannot
object to his estate's being charged with
those debts, unless the means be furnished
of charging the surviving executor therewith.
Carter's Executors v. Cutting and Wife,
pl. 1. p. 223.

In such case, the private account of each
executor with the Testator in his life time,
and with his co-executor, and all other
accounts that are necessary to make s
just settlement of the matters in controversy,
ought to be taken, if requested, though not
specifically put in issue in the cause. Ib. pl. 2
Ôn a bill exhibited by the bolder of a
promissory note against the maker, and all

the endorsers; to avoid circuity of action,
the Court of Equity may fix the debt on the
person first responsible. Chalmers, Jones and
Co. v. M'Murdo, pl. 1. p. 252.
28. An agent, endorsing a note for the benefit of

his principal, who assures him that he shall
not be held responsible, ought not to be
compelled to pay the money at the suit of a
person, to whom the note is endorsed with
notice of such equity; but the decree should
be against the principal. And it seems, if
the endorsee had no such notice, yet if the
principal be solvent, the decree ought still to
be against him in the first place. Ibid. pl. 4.
29. Of two equitable incumbrances, he that hath
the preferable right to call for the legal estate,
is entitled to preference, though he hath not
actually got it in, nor got an assignment, nor
even possession of the deed conveying the
outstanding legal title; and though his lien is
of subsequent date to the other incumbrances.
Williamson v. Gordon's Executors, pl. 4. p.
257.

30. A purchaser, having taken possession of the
estate, is not entitled to relief in equity
against a judgment for the purchase money,
on the ground that the title of the vendor is
not clearly shewn to be good, but is bound, on
his part, to prove it bad. Grantland v.
Wight Executor, &c. pl. 1. p. 295.
31. 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 and others v. Gra-
ham's Executor and Devisces, pl. 1. p. 297.
32. Under what circumstances, in a suit of
equity for specific performance of an agree
ment for an exchange of lands, the Court
may decree according to the prayer of the
bill, without a reference to a commissioner of
the plaintiff's title, though objected to by the
defendant in his answer. Stovall v. London,
pl. 1. p. 299.
33. The most important circumstances in this
case appear to have been that the title by
which the lands of each party were held,
was set forth in the written agreement; and
that the defendant, after filing his answer,
received a sum of money, agreed to be paid
for the difference in value between the tracts
to be exchanged. Ibid. pl. 2.
34. See Assets; and Boyd and Swepson and

others v. Stainback and others, pl. 3. p. 305.
35. See Answer; and Jackson's Assignees v.
Cutright and Clark, pl. 1. p. 308.

36. A written agreement for sale of the lands

of a corporation, though not with the common
seal affixed, may be enforced in equity.
Legrand v. Hampden Sidney College, pl. 3.
p. 324.
37. In a written agreement for sale of land it was
described as a tract which had escheated to
the Commonwealth, and by the Common-

38.

39.

40.

41.

42.

43.

44.

45.

wealth had been given to the vendor, who
stipulated to make compensation, if a better
title than his should thereafter be established.
The title of the vendor appearing to be such
as described; on a bill in his behalf for
specific performance, the purchaser was not
allowed compensation for locating and
obtaining a patent for part of the land
as waste and unappropriated, but was decreed
to release his claim under the patent, before
the vendor should be compelled to make him
a deed; and a stipulation, conforming to the
agreement, was directed to be inserted in
such deed. Ibid. pl. 4.

Depositions taken in a suit to perpetuate
testimony are not to be read as evidence in

subsequent suit, unless it appear that the
witnesses are dead, or otherwise out of the
power of the Court. Lawrence v. Swann
and others, pl. 2. p. 332.

A Court of Equity ought not to direct an
account to be taken, after a great lapse of
time, and after acts of acquiescence, by the
party demanding it, in a construction of his
rights, which, if correct, would render such
account unnecessary. Bolling v. Bolling and
others, pl. 3. p. 334.

See Lands; and Hundley v. Lyons, pl. 3. p.

342.

See Devise; and Ibid. pl. 4.
See Condition ; and Graham v. Call Executor
of Means, pl. 1.

396.

In a suit brought against the vendee of a
slave, if he refer the controversy to arbitra-
tion, without being authorized to do so by
the vendor, (who had bought and sold the
slave bona fide,) and when he might have
cast the plaintiff in the ordinary course of
law; he has no remedy in equity against
such vendor, in the event of his losing the
slave by an award. Dust v. Conrod and
others, pl. 1. p. 411.

A mortgage being attested by one witness
only, and therefore defective, (see 1. R. C.
ch. 90.1 and 4. p. 157;) yet, if the
mortgagee has recovered upon it at law, a
Court of Equity will not regard the defect.
Ibid. pl. 2.

If the mortgagee of a slave recover him in
detinue against a person claiming under a
bona fide purchaser from the mortgagor;
equity will consider such person as standing
in the place of the mortgagor, and entitled
to redeem the slave by paying the debt.
Ibid. pl. 3.

46. It will also, at the same time, (to make an
end of the controversy,) give him relief
against the mortgagor, who sold the slave
with warranty of the title. Ibid. pl.

arbitration the suit brought against him by
the mortgagee. Ibid. pl. 6.
48. It seems, that, where the purchase money for
land which the vendor has conveyed with
warranty, has not been fully paid; and the
purchaser comes into equity for an abate-
ment or discount, from the sum remaining
due, on account of a loss by an eviction of
part of the land; he should be allowed the
value of the land lost, at the time of the
purchase, and not at the time of the
eviction. Crenshaw v. Smith and Co., pl. 1.
p. 415.

49. A Bill in Equity in behalf of persons, suing
as "children" of a deceased residuary le-
gatee for his share of the residuum, cannot
be sustained: it should appear that the
plaintiffs are the administrators, or other
legal representatives, of such legatee. Hays's
Executor and others v. Hays and others,
pl. 1. p. 418.

50. A surety in a Bond, having paid to the
creditor the amount of a Judginent against
him thereupon, may file a Bill in Equity,
(without having made a motion or brought
any action at law) against the administrator
and heirs of the principal obligor, for the
purpose of establishing his demand; of having
an account of the personal and real estates;
and of being permitted to stand in the place
of the obligee in the Bond, so as to be paid
out of the real estate, in default of the
personal. Tinsley v. Oliver's Administra-
tor and Heirs, pl. 1. p. 419.
51. See Assignment; and Southgate v. Taylor, pl.
1. p. 420.

52. A sale of mortgaged land by Commissioners

in Chancery, ought to be set aside, and
another decreed, upon its appearing to the
Court that the highest bidder at such sale
had previously agreed with a purchaser from
the mortgagor, that he would allow such
purchaser to redeem the land, within a
limited time, by repaying him his money
with interest; and that, such agreement
being known at the sale, other persons were
induced to refrain from bidding, and
consequently the land was struck off to him
at a price inferior to its value. Wood's
Executor and Miller v. Hudson and others,
pl. 1. p. 423.

53. See Mortgage; and Ibid. pl. 2.
54. See Account; and Foster v. Clarke, pl. 1. p.

430.

55. See Agreement; and Birchett and others v.
Bolling, pl. 1. p. 442.

56. An Attachment ought not to 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, he cannot ascertain without
applying to the Court for a farther decree.
Ibid. pl. 2.

A decree ought not to be reversed for
uncertainty, in matters, as to which it is
only interlocutory, and may be perfected by
application to the Court. Ibid. pl. 3.

See Legacies; and Matthens Executor of
Garnett v. Noel, pl. 2. p. 460.

It is a sufficient ground of equity for a
perpetual injunction to a Judgment, in
Slander, that, at the time of speaking the
defamatory words, and when the Judgment
was obtained, the complainant in the bill,
(who was defendant at law) was insane, or in
a state of partial mental derangement on the
subject to which those words related. Horner
v. Marshall's Administratrix, pl. 1. p.
466.

See Interest; and Mayo v. Judah, pl. 1 and
2. p. 495.

Under what circumstances, a purchaser,
having his election to restore the property,
is not disabled, in equity, from availing
himself of such right, by his having made a
lease thereof. Williams v. Price, pl. 12.
P. 507.

ERROR.

See Demurrer; and Jones v. Stevenson, pl.
4. p. 1.

See Declaration ; and Don v. Adams's admi-
nistrators, pl. 1. p. 2.

See Jurisdiction; and Buster v. Ruffner, pl.
1. and 2. p. 27.

See Pleading; and Chichester v. Boggess, pl.
1. p. 98.

See Condition; and Green v. Bailey, pl. 1.
246.

The Act of January 10th, 1815, on the sub-
ject of writs of Habeas Corpus, does not
authorize the issuing of a Writ of Error
by the Court of Appeals to a Judgment dis-
charging 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 the
State or the United States. Attorney Gene-
See Equily; and Birchett and others v. Bol-
neral v. Fenton and Shepherd, pl. 1. p. 292.
ling, pl. 3. p. 442.

See Decree; and Pickett and Wife v. Chilton,
pl. 5. p. 467:

ESCHEATS.

A Testator devised his real estate in Virginia
to his Executors, to be sold by them, or the
survivor of them, at such time and in such
manner as they or the survivor of them should
judge most advantageous; and gave and
bequeathed the money arising from such sales,
and the rents and profits of the said lands

2.

4.

5.

which might accrue before the sales, to his
sisters, who were aliens ; subject nevertheless,
to the payment of his just debts, and of cer-
tain legacies to his Executors. Quære,
whether, under this Will, the title of the 3.
alien sisters was good against the Common-
wealth 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? The
Commonwealth v. Martin's Executors and
Devisees, pl. 1. p. 117.
2. 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
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 & Seddon,
pl. 1. p. 160.

3.

1.

1.

See Deed; and Ibid. pl. 3.

ESTATE TAIL.

See Limitation; and Allen v. Parham and
others, pl. 2. p. 457.

ESTOPPEL.

See Arbitration; and Ligon v. Ford, pl. 1.
P. 10.

EVICTION.

6.

7.

8.

9.

10.

11.

12.

13.

Whether, in an action for words, circum-
stances of suspicion, not amounting to full
justification, may be proven in mitigation of
damages. Cheatwood v. Mayo, p. 16.
What evidence is sufficient to establish an
acknowledgment of, and promise to pay, a
debt by account. Dunbar v. Beale, pl. 2.

P. 24.

See Execution; and Carrington v. Anderson,
pl. 1. and 2. p. 32.

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 Covenant; and Hollingsworth 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.
pl. 2.

When a Commissioner is stating accounts
between Executors and the estate of their
Testator; if one of them, who had for col-
lection the evidences of debts due the estate,
which might have been collected by him, be
dead; his representative cannot object to his
estate's being charged with those debts, unless
the means be furnished of charging the
Carter's
surviving Executor therewith.
Ex'or. v. Cutting and Wife, pl. 1. p. 223.
See Equity; and Grantland v. Wight Ex'or.
&c., pl. 1. P. 295.

Though private Acts of Assembly may be
given in evidence, without being specially
pleaded, they are not to be taken notice of,
judicially, by the Court, as public Acts are,
but must be exhibited as documents, if not
admitted by consent of parties. Legrand v.
Hampden Sidney College, pl. 1. p. 324.
Depositions taken in a suit to perpetuate
testimony are not to be read as evidence in a
subsequent suit, unless it appear that the
witnesses are dead, or otherwise out of the
power of the Court. Lawrence v. Swann &
others, pl. 2. p. 332.

It seems, that the testimony of the editor of
a newspaper, that he inserted therein, the
requisite number of times, an advertisement,
the purport of which he states on oath, is
sufficient proof of such publication, on a trial
in ejectment, without producing the adver-
tisement itself. Moore v. Gilliam, pl. 3. p.

346.

If it be proved, on a trial in Ejectment, that
the father of the lessor of the plaintiff, who
devised the land to him was in possession