1820.

roneous, illegal, and insufficient to enable the Court to JANUARY, render a judgment in favour of the plaintiff.

The Court, nevertheless, overruled these objections, and entered judgment according to the verdict; whereupon the defendant appealed to this Court, by which that judgment was affirmed.

Boggess

V

Boggess,

Walker against Laverty and Gantley.

Decided, Jan. 31st,

1820.

1. If the

of the holder, for pay

the debt to

promise to pay it; say

ing nothing having re

about his

LAVERTY and GANTLEY merchants and partners, brought their action of debt in the Superior Court of Hen- drawer of a protested rico County, on a protested inland bill of exchange, against bill of ex"John C. Walker, of the firm of Walker & Co." a citizen change, being applied and inhabitant of the said County; charging in the de- to, in behalf claration, that the bill was drawn by the said Walker & Co. on the 26th day of March 1816, at New-York," to ment, acwit, at Henrico aforesaid, and within the Jurisdiction of knowledge the Court," according to the use and custom of Mer- be just, and chants, (the name of the said Walker & Co., by the hand of the said John C. Walker, one of the partners as aforesaid. being thereto subscribed,) for the sum of $343 88, value received; that the plaintiffs presented the said Bill to Messrs. Coe & Marsh, the drawees, at New-York, on the day of , in the year aforesaid, and re- act quested them to pay it, which they refused to do; where- the bill, upon it was protested by a Notary Public for the City of drawer, is New-York, on the 30th of September 1816; of which the not bound to said Walker & Co. then and there, to wit, at Henrico notice was aforesaid, had notice; whereby, and by virtue of the Act given him of the pro of Assembly in such case made and provided, action ac- test. crued, &c. against the said Walker & Co., &c., in the usual form of a declaration against a mercantile company.

The defendant pleaded nil debet.

On the trial, he required proof of notice of protest for non-payment of the bill, whereupon the plaintiff introduced a witness, who proved that he applied to the de

ceived notice; the holder, in an action of debt upon

against such

prove that

1820.

Walker

V.

JANUARY, fendant John C. Walker for payment of the said bill; that the defendant acknowledged that the debt was a just one, and said he would pay it; and that nothing was said in that conversation as to his receiving notice or not. The Laverty and Gantley. defendant thereupon moved the Court to instruct the Jury, that, unless the said acknowledgment was made with a knowledge of all the facts of the case as to the laches of the holders of the said bill, the said evidence of the acknowledgment was not to be received; which opinion the Court refused to give, and instructed the Jury that such acknowledgment was a waiver of all notice.— The defendant filed a bill of exceptions; and, a verdict and judgment being rendered against him, he obtained a Supersedeas from a Judge of this Court; contending, in his petition, that the Superior Court erred in not giving the instruction to the Jury requested by him; and referring to Blesard v. Hirst, 5 Burr. 2672; Goodall & others v. Dolley, 1 Term. Rep. 712; and 12 East 38.

After argument by Bacchus for the plaintiff in error, and Upshur contra, the Court affirmed the Judgment.

Decided, Feb. 4th, 1820.

Backus against Taylor.

1. It is not IN this case the declaration was in the following the declara- words:

necessary, in

tion for cov

enant bro

"Superior Court, Botetourt County, to wit; Charles ken, to recite Taylor complains of George Backus, in custody, &c., the whole of "of a plea of covenant broken; for this, that, whereas, "by certain articles of agreement, made and entered

the agree

ment, but

only to des

cribe sub

stantially the material parts as to which breaches are alledged.

See Macon v. Crump, 1 Call 575, Buster's ex'or v. Wallace, 4 H. & M. 82.

2. In Covenant upon an agreement of lease, which, besides the stipulation to pay the rent, contained other clauses, binding the lessee to board the lessor and wife part of the term, and to return the premises uninjured, the declaration described so much of the agreement as related to leasing the property and paying the rent; charging the defendant with having broken the covenant generally, and particularly in failing to pay the rent; but said nothing about the other stipulations. It was decided that this was not a substantial variance.

into, on the 24th day of May 1816, at the parish of "in the County aforesaid, and within the jurisdiction of "this Court, between the said Charles Taylor of the one "part and the said George Backus of the other part, seal"ed with their seals and bearing date the day and year "aforesaid, and to the Court now here shewn; by which "he the said Taylor did agree to rent to the said George "Backus his establishment at the Yellow Springs, to"gether with what furniture he could spare, and his cook "Nathan; in consideration whereof, the said George "Backus did agree to pay unto the said Taylor, on the "first day of September next ensuing, the sum of six "hundred dollars current money of Virginia; by virtue "of which said articles, he the said Backus did enter "upon and take possession of the establishment of the "said Taylor at the Yellow Springs:-and the said Tay"lor in fact says, that, although he hath, well and faith"fully, according to the tenor and effect of the said ar"ticles of agreement, performed and kept all and singu"lar the covenants in the articles aforesaid, above speci"fied, on the part of the said Taylor to be observed; yet "the said Backus on his part hath not performed, ac"cording to the tenor and effect of the said articles of "agreement, the covenants in the articles aforesaid, "above specified, on the part of the said Backus to be "performed. And the said Taylor saith, "Backus hath not kept his said Covenant made by him "to the said Taylor; that he hath not paid the said sum ❝ of money, which he agreed to pay; to wit, six hundred "dollars; at the time appointed, to wit, on the first day "of September next ensuing; neither hath he paid the "same before, or since, though often requested; but the "same to pay he hath hitherto altogether refused, and *still doth refuse; whereupon said Taylor saith he is "prejudiced, and hath damage to the value of and

therefore he brings his suit."

that the said

The defendant craved Oyer of the articles of agreement, which were as follow:-" Articles of agreement made and entered into this 24th day of May 1816, between

FEBRUARY,

1820.

Backus

V.

Taylor.

1820.

FEBRUARI, Charles Taylor of the one part and George Backus of "the other part, witness, that the said Charles Taylor "doth rent to the said George Buckus, for the approach"ing season, his establishment at the Yellow Springs in "the County of Montgomery, together with as many

Backus

V.

Taylor.

66

beds and furniture as the said Taylor can spare, also as "many dishes, plates, cups and saucers, knives and forks, "and kitchen furniture as he can spare from the use of his "own house, and his cook Nathan. In consideration of "which, the said Backus engages on his part to keep the "best accommodations for visitors; is to board the said Taylor and his wife during such part of the season as they "may stay, and furnish them with the shed room of the "framed house next the dining room; is to return at the end "of the season all articles of furniture belonging to said "Taylor, in as good condition as when received, natural "wear excepted, and to make restitution for any that "may be lost or destroyed; is not to suffer any of the "trees standing in the yard around the Springs to be "cut or injured, or suffer any of the buildings to be un"necessarily abused or injured; and, on the first day of "September next, is to pay unto the said Charles Taylor "the sum of six hundred dollars in current money of "Virginia. For the true and faithful performance of "this agreement, we bind ourselves, our heirs &c., each "to the other, in the sum of twelve hundred dollars."Witness our hands and seals the date aforesaid."

The defendant demurred generally to the declaration; which demurrer being overruled on argument, he pleaded that he had not broken his covenant. At the trial, the plaintiff offered the said articles of agreement as evidence to the Jury, to which the defendant objected on the ground that the said writing was not the same described in the declaration; but the Court, being of opinion that there was no substantial variance, permitted it to go the Jury; to which opinion the defendant excepted.Verdict and Judgment for the plaintiff for $373 58 cents, damages and Costs; from which the defendant appealed to this Court, where the same was affirmed.

West's executor against Logwood.

Decided, Feb 14th, 1820.

1. Under

circumstan

ces, inducing

that a bond

law had been

feit, or

relief was given in equity, by directing an issue to try

bond in

GEORGE M. WEST executor of Robert West deceased, presented a Bill to the Chancellor of the Richmond District, for an Injunction to stay proceedings on a judg- suspicions, ment at law obtained by Thomas Logwood against him, (on which a on a bond pretended to have been executed by his testator judgment at Robert West, for $2481 97, which the Complainant be- obtained lieved to be counterfeit; that the defendant Logwood by against an executor,) his answer might set forth particularly, the consideration was counterfor which the said bond was given; that a new trial of the fraudulent; cause might be directed, in which the complainant might upon a Bill filed by the be permitted to plead non est factum, and thereby put the Executor, question of fraud in issue; or that an issue on the same point might be made up, and tried at the bar of any tribunal convenient to the parties; and for general relief. The grounds of Equity stated in the Bill, were, that, whether the "on the trial at law, on the common plea of payment, put question was "in by the complainant's counsel, some circumstances the deed of "transpired, which, for the first time, awoke suspicions or not; and, if so, what "of fraud; and then, on a minute examination of the "paper, the complainant was convinced that the signa- sideration on ❝ture of his testator's name thereto was not genuine;" founded: that, under this conviction, after the jury had rendered and this, a verdict for the plaintiff, he moved the Court for a standing the new trial, which was denied, and judgment rendered trial at law according to the verdict; that, execution being forthwith the plea of sued out, the Complainant gave a forthcoming bond, with payment put a view to gain time to make himself better acquainted sel, and a with the transactions between his testator and the said new trial Logwood, and to detect the fraud if any had been attempt- by the comed by the latter; on which forthcoming bond, exccution plainant was refused by had lately been awarded:--that the plaintiff was now the Court; it being alledgfirmly convinced that the said bond for $2,481 97 cents ed in the bill was not the genuine deed of his testator;—

the testator,

was the con

which it was

notwith

was upon

in by Coun

moved for

that the complainant's suspi

cions of fraud were for the first time, excited on the trial at law. and then, on a minute examination of the paper, he was convinced that the signature of his testator's name thereto was not genuine; which conviction was strengthened by other circumstances, some of which were known to him before the trial, and some af terwards.