5.

6.

1.

2.

him sent to the Penitentiary for it;" the 7.
plea being justification," because the plaintiff
did take a certain female slave, the property
of the defendant, out of his possession, in such
manner and with such intention as would
subject him to such punishment ;" to which
the plaintiff replied generally, and issue was
thereupon joined; it was decided, that, to
support this plea of justification, it was suffi
cient for the defendant to shew that the slave,
so averred to be his property, had been a long
time in his possession as his slave, and was
purchased by him as such; notwithstanding
the pendency of a suit at that time in her
behalf for freedom; for, if her right to free-
dom could be inquired into in this action, an
issue threupon ought to have been tendered
by the plaintiff, whereby the defendant might
have known to what point to app'y his evi-
dence. Hook's Adm'rs. v. Hancock, pl. 1.
P. 546.

POWER.

See Lands; and Grantland v. Wight, Ex'or.
&c., pl. 2. p. 295.

PRACTICE.

See Pleading, No. 3.; and Jones v. Slevenson,
pl. 3. p. 1.

Whenever there is an issue in fact, and also
a demurrer, the demurrer ought regularly
first to be decided; but an irregularity in this
respect is not sufficient to reverse a Judgment
to which there is no other objection. Ibid.
pl. 4.

If the case be clear against the party tender-
ing a demurrer to evidence, the Court may
refuse to compel the other party to join.
Dunbar v. Beale, pl. 1. p. 24.

After a Distringas upon a Judgment in
detinue has been returned executed, but
without satisfaction; if the Court, on the
plaintiff's motion, direct the Distringas to be
superseded, so far as it related to the specific
property and to be executed as to the alter
native value; such order is not erroneous;
but, it seems, the plaintiff may have a new
Distringas to be executed as to such value.
Garland v. Bugg, pl 1. p. 166.

1.

2.

1.

It is not necessary to state the reasons of such 1.
order on its face; because it will be presumed
to be correct unless the contrary appears. 2.
Ibid. pl. 2.

After the Distringas upon a judgment in
detinue has been executed without satisfaction,
superseded as to the specific property, and
directed to be executed as to the alternative
value; if it appear to the Court that, in con-
sequence of the defendant's persisting in
withholding the specific property, the plaintiff
cannot get it by the Distringas; a ca. sa. or
fi. fa. may be directed to be issued, for the
alternative value. Ibid. pl. 3.

3.

4.

5.

-

Notice of a motion to supersede a Distringas,
or for a ca. sa. or fi. fa. in lieu thereof, need
not be given by the plaintiff to the defendant.
Ibid. pl. 4.

PRESUMPTION.

See Possession; and Moore v. Gilliam, pl. 4.
P. 346.

The right of freedom prima facie acquired
by a slave imported into this state, subsequent
to the year 1786, could only be obviated by
evidence adduced to shew, or by circum-
stances authorizing a presumption, that the
oath required by law had been taken by the
importer. Garnell v. Sam and Phillis, pl.
2. p. 642.

PRINCIPAL.

A Bond for prosecuting a Writ of Superse-
deas, being executed by a surety only, with-
out any principal obligor, is insufficient; and
a supersedeas issued thereupon ought to be
quashed. Miller v. Blannerhasset, pl. 1. p.
197.

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
netice 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. Chalmers
Jones and Co. v. M Murdo, pl. 4. p. 252.

PROCESS.

The several Superior Courts of Chancery
have jurisdiction in causes where their
process is served upon the defendant, within
their respective districts; though his place
of residence, and also the land in controversy,
be in a different district. Hughes v. Hall,
pl. 1. p. 431.

PROFITS.

See Remainder; and Medley v. Jones, pl. 2.
P 98.

It seems that, according to the common law,
still in force in Virginia, the plaintiff in
detinue is not entitled to the issues of the
defendant's land, or other property, received
by the Sheriff upon the Distringas. Garland
v. Bugg, pl. 5 p. 166.

See Lands; and Hundley v. Lyons, pl. 2.
P. 342.

See Trust; and Southgate v. Taylor, pl. 1.
p. 420.

When a person, who bought a slave with
lawful notice of a better title, is decreed to

1.

2

3.

4.

See Sale; and Stone v. Pointer, pl. 2. p.

287.

PROMISSORY NOTE.

6.

1.

On a Bill exhibited by the holder of a
promissory note against the maker and all
the endorsers; to avoid circuity of action. 1.
the Court of Equity may fix the debt on the
person first responsible. Chalmers, Jones
and Co v M Murdo, pl. 1 P. 252.

The first endorser of a note in point of time
is not, of course, first responsible. Ibid. pl. 2.
If the payee of a note write his name over
that of a person, who endorsed it in blank,
but refused to do so except upon the ground
of the responsibility of the payee as first
endorser; he thereby makes himself responsi
ble, as such, in point of contract. Ibid. pl.

3.

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 principl 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.

5. If a promissory note, negotiable at bank, be
made and endorsed, for the purpose only of
obtaining accommodation for the maker, and,
being left by him with a second endorser to
be lodged in the hank for discount, be
fraudulently put into circulation by such
second endorser, to raise money thereupon
for his own use; a third endorser, knowing
nothing of such fraud, may cause the note,
(if lodged in the bank for collection, and not
paid when due,) to be protested as to the

1.

2.

1.

maker and prior endorsers, pay it himself, and
thereupon maintain his action against the
maker and first endorsers, notwithstanding no
valuable consideration passed, or was con-
tracted for, between him and the second
endorser, but he made the endorsement
merely from the motive of enabling uch
second endorser to get the note discounted at
the bank. Robertson and Co. v. Williams
and Smith, pl. 1. p. 381.

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.
Ritchie and Wales v. Moore, pl. 3. p.
388.

PROTEST.

A bill of exchange does not lose its negotia-
ble character by being protested; but, after
protest, may be assigned, or transferred
without assignment. Ritchie and Wales v.
Moore, pl. 2. p. 388.

PUBLICATION.

It seems, that the testimony of the editor of
a newspaper, that be 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.

PURCHASE.

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, con-
cerning 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

The addition of a codicil to a Will is not
sufficient to operate as a devise of lands
purchased 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. Ken-
dall's Ex'or. &c. v. Kendall, &c. pl. 1. p.
275.

PURCHASE MONEY.

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. Cutright and Clark, pl. 3 p. 308. On a bill for specific performance exhibited 1. by the devisee of the purchaser, the Court, in decreeing the conveyance, ought to reserve to the vendor a lien on the land to secure the payment of the purchase money. Hundley v. Lyons, pl. 4. p. 342.

2.

3.

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 abatement 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. A stipulation that the property purchased shall be the only security for payment of the 4. purchase money, in exoneration of the person and other property of the purchaser, is not repugnant, but valid and obligatory on the parties. Williams v. Price, pl 4. p. 507. In such case the land is to be considered as a pledge, liable to raise by sale the money due, or so much thereof as it may be adequate to 5. produce; the surplus, if any, to enure to the benefit of the debtor. Ibid. pl. 5

6. In the event of such debtor's inability to comply with his contract, he may relinquish his eventual interest in such surplus, and give up the land in absolute property to his creditor; thereby exonerating himself from the debt. And if the conveyance of the land to the debtor has not been completed, 7. it is unnecessary, in the event of such surrender, to go on and perfect the same; but instead thereof, the contract for such conveyance should be annulled. Ibid. pl. 6. It seems just, however, that the property purchased should be considered liable for the 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 iu that sense. Ibid. pl. 9.

If personal property, consisting of perishable articles, provisions, raw materials for manufacture, implements necessary for a furnace, &c. be pledged, together with the furnace and land for payment of the purchase money; 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. 10.

8.

9.

10.

PURCHASER.

See Possession; and Thomas v. Soper, pl. 1. p. 28.

A purchaser of land, suing for breach of a contract to make a good title may with propriety come into a Court of Equity for pecuniary 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 satisfaction of his judgment when recovered; the vendor, or his lawful representatives, together with the trustees and cestuys que trusts being made defendants to the Bill. Sims's Administrator v. Lenis's Executor and others, pl. 1. p. 29. See Trust; (Deed of,) and Williamson v Gordon's Ex'ors pl. 1 p. 257

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 not clearly shown to be good; but is bound, on his part, to prove it bad. Grantland v. Wight Ex'or. &c. pl. 1. p 295.

See Trust; and Moore v. Gilliam, pl. 2. p.

346.

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 entitied to redeem the slave by paying the debt. Dust v. Conrod and others, pl. 3 P. 415. 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. 4.

In such case, the right of the derivative purchaser to redeem the slave, and to relief against the mortgagor, who improperly sold him, is not affected by his having submitted to arbitration the suit brought against him by the mortgagee. Ibid. pl. 5.

When a person, who bought a slave with lawful notice of a better title, is decreed to deliver him and pay profits; Interest ought to be charged against him, upon the hires actually received by him from other persons, from the dates of his receipts; but not upon the profits of such slave while in his own possession without being hired; the same being unliquidated and merely conjecturul sums, and which he was in no default in not paying. Buird v. Bland and others, pl. I. p.

492.

Where a purchaser, having his election to restore certain articles of personal property, imakes an offer to do so, which the vendor refuses to accept, the purchaser is not thereafter responsible for any waste or damage the property may sustain, without his wilful misconduct. Williams v. Price, pl. 11. p. 507.

1.

2.

1.

1.

1.

1.

R

RECORD.

1.

The clerk's stating in the transcript of the
record, that certain answers which are filed,
and copied in such transcript, were not noticed 2.
by the Court, is not to be relied upon by the
Appellate Court, if the contrary may he
inferred from the decree itself. Pickett and
Wife v. Chilton, pl. 2. p. 467.
In a suit for freedom, the validity of a will,
under which the plaintiff claims, ought not
to be questioned; the same, (or a copy there-
of, the original being destroyed,) having been
admitted to record, as and for the last Will 3.
of the Testator, by the proper Court, whose
judgment remains unappealed from, and the
validity of such Will not contested by bill in
equity. Lemon v. Reynolds Administrator
of Holmes, pl 1. p 552.

RECOVERY AT LAW.

A mortgage being attested by one witness
only, and therefore defective, (see 1 R. C.
ch. 901 and 4. p. 157;) yet, if the mort
gagee has recovered upon it at law, a Court
of Equity will not regard the defect. Dust
v. Conrod and others, pl 2. p. 411.

REDEMPTION.

See Purchaser; and Dust v. Conrod and
others, pl. 3. p. 411.

REFERENCE.

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
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 Judgment
of the Court; such award may be entered
without any previous order of Court confirin-
firming the appointment of such substitute.
Manlove v. Thrift, pl. 1. p. 493.

RELEASE.

See Sale; and Legrand v. Hampden Sidney
College, pl. 4. p. 324.

2.

4.

1.

2.

1.

See Penalty; and Tennant's Executer
Gray, pl. 2. p. 494.

RELIEF.

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 froud,
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.

See Possession; and Grantland v. Wight
Executor, &c. pl. 1. p. 295.

RELINQUISHMENT.

See Waiver; and Ligon v. Ford, pl. I. p.

10.

See Sale; and Howatt and Co. v. Davis and
Chalmers, pl. 3. p. 34.

See Case Agreed; and Royall's Adminis
trators v. Royall's Administrator, pl. I. p.
82.

See Waiver; and Medley v. Jones, pl. 1. p.

98.

REMAINDER.

A person entitled to a remainder in fee,
expectant upon a life estate in slaves, taking
them into his own possession to prevent the
tenant for life from carrying them out of the
state, is bound to account for and pay their
hire or profits, while he detains them; and is
not entitled, upon the ground of the tenant's
refusing to give hond and security for their
production at the expiration of the life estate,
to an injunction to stay proceedings upon
a Judgment against him for such hire or
profits. Medley v Jones, pl. 2 p. 98.
A Testator gave to his son W. a tract of land
during his natural life, and then to his heirs
lawfully begotten of his body, that is, born
at the time of his death, or nine Calendar
months thereafter;" and, for want of such
heirs, then, to his son I's two sons Jacob
and George; one of them to set a price
on the whole of it, and give or receive one
half of that sum from the other." This
was a good limitation by way of remainder,
to Jacob and George. Warners v. Mason,
pl. 1. p 242.

2.

3.

4.

1.

1.

2.

3.

4.

1.

to justify the allowance thereof. Don v. Adams's Administrators, pl. 1. p. 21. But if the Jury state the circumstances in a special verdict, the Court should disallow the interest, if, under those circumstances, it ought not to be allowed. Ibid. pl. 2. Interest on rents in arrear ought not to be allowed; the circumstances being that there always were effects on the premises, liable to distress, sufficient to have satisfied the rents, which were not paid, though demanded by the landlord. Ibid. pl. 3.

See Lands; and Hundley v. Lyons, pl. 3. p. 342.

REPAIRS.

See Widow; and Hudson and others v. Hudson's Administrator, pl. 1. p. 180.

REPLEADER.

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

4.

1.

1.

If the count, upon a Writ of Right, be in behalf of two demandants, a plea opposing 1. the claim of one, without mentioning that of the other, is defective; and if, without any replication by the demandants, a verdict be found and Judgment be rendered in their favour, such judgment must be reversed, and all the proceedings subsequent to the count set aside. Chichester v. Boggess, pl. 1. p. 98.

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 hav ing 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. Bailey, pl. 1. p.

1.

1.

2.

1.

2. Quare, whether it is competent to the plain- 1. tiff, in any action other than replevin, to tender an issue in fact by a replication, and an issue in law by a demurrer, to the same plea? Ibid. pl. 3. p. 1.

3. 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, Judgment ought to be arrested after a verdict in his favour. Green v. Bailey, pl. 1. p. 246.

The only effect of the omission of a replication to an answer is that all the facts stat in such answer are admitted. Pickett and Wife v. Chillon, pl. 4. p. 467.